[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Proposed Rules]
[Pages 26892-26898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11429]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0132; FRL-9151-2]


Approval and Promulgation of Implementation Plans; Texas; Excess 
Emissions During Startup, Shutdown, Maintenance, and Malfunction 
Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to partially approve and partially 
disapprove a revision to the Texas State Implementation Plan (SIP) 
submitted by the Texas Commission on Environmental Quality (TCEQ) in a 
letter dated January 23, 2006 (the January 23, 2006 SIP submittal). 
This SIP submittal concerns revisions to 30 Texas Administrative Code 
(TAC) Chapter 101, General Air Quality Rules, Subchapter A General 
Rules; and Subchapter F Emissions Events and Scheduled Maintenance, 
Startup, and Shutdown Activities. This action proposes approval of 
those portions of the rule that are consistent with the Clean Air Act 
(the Act), and disapproval of those portions of the rule that are 
inconsistent with the Act. We are proposing disapproval of provisions 
that provide for an affirmative defense against civil penalties for 
excess emissions during planned maintenance, startup, or shutdown 
activities. A disapproval of these provisions means that an affirmative 
defense is not available in the federally approved SIP for violations 
due to excess emissions during planned maintenance, startup, or 
shutdown activities. This action is in accordance with section 110 of 
the Act.

DATES: Comments must be received on or before June 14, 2010.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2006-0132, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at [email protected]. Please 
also send a copy by e-mail to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0132. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through www.regulations.gov or e-mail that you consider to be CBI or 
otherwise protected from disclosure. The www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available

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either electronically in www.regulations.gov or in hard copy at the Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays 
except for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below to make an appointment. If 
possible, please make the appointment at least two working days in 
advance of your visit. There will be a 15 cent per page fee for making 
photocopies of documents. On the day of the visit, please check in at 
the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment: TCEQ, Office of Air Quality, 12124 Park 35 Circle, Austin, 
Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax 
(214) 665-7263, e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to EPA.

Outline

I. Background
    A. What actions are we proposing?
    B. What documents did we use in our evaluation of the January 
23, 2006, SIP submittal?
    C. What is the background for this proposed rulemaking action?
    D. Why are we proposing approval of portions of the January 23, 
2006 SIP submittal?
    E. Why are we proposing disapproval of sections 101.222(h), 
101.222(i), and 101.222(j) of the January 23, 2006 SIP submittal?
    F. What happens if Texas continues to implement section 
101.222(h) as a State law?
II. Proposed Action
III. Statutory and Executive Order Reviews

I. Background

A. What actions are we proposing?

    We are proposing to approve revisions to 30 TAC, General Air 
Quality Rule 101, Subchapter A General Rules; and Subchapter F 
Emissions Events and Scheduled Maintenance, Startup, and Shutdown 
Activities of the January 23, 2006 submittal as revisions to the 
federally-approved SIP. Specifically, we are proposing to approve 
Subchapter A, section 101.1 (Definitions); and Subchapter F, sections 
101.201 (Emissions Event Reporting and Recordkeeping Requirements), 
101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and 
Recordkeeping Requirements), 101.221 (Operational Requirements), 
101.222(a) through (g) (Demonstrations), and 101.223 (Actions to Reduce 
Excessive Emissions) into the Texas SIP.
    We are also proposing to disapprove sections 101.222(h) (Planned 
Maintenance, Startup, or Shutdown Activity), 101.222(i) (concerning 
effective date of permit applications), and 101.222(j) (concerning 
processing of permit applications) of the January 23, 2006 submittal. 
We are proposing disapproval of these provisions because they provide 
for an affirmative defense against civil penalties for excess emissions 
during planned maintenance, startup, or shutdown activities. A 
disapproval of these provisions means that an affirmative defense is 
not available for violations due to excess emissions during planned 
maintenance, startup, or shutdown activities in the federally-approved 
SIP.
    Based on our review of the January 23, 2006 submittal, we believe 
that sections 101.222(h), 101.222(i), and 101.222(j) are severable 
from, and independent of, the remainder of the submittal. Therefore, 
our disapproval of sections 101.222(h), 101.222(i), and 101.222(j), and 
approval of the remainder of the January 23, 2006 submittal, will not 
affect the implementation of the sections being approved today for 
inclusion in the SIP. See section 20 of our Technical Support Document 
(TSD) prepared in conjunction with this document for more information.

B. What documents did we use in our evaluation of the January 23, 2006, 
SIP submittal?

    The EPA's interpretation of the Act as it applies to excess 
emissions occurring during periods of startup, shutdown, and 
malfunction is set forth in the following documents: A memorandum dated 
September 28, 1982, from Kathleen M. Bennett, Assistant Administrator 
for Air, Noise, and Radiation, entitled ``Policy on Excess Emissions 
During Startup, Shutdown, Maintenance, and Malfunctions'' (1982 
Policy); EPA's clarification to the above policy memorandum dated 
February 15, 1983, from Kathleen M. Bennett, Assistant Administrator 
for Air, Noise, and Radiation (1983 Policy); EPA's policy memorandum 
reaffirming and supplementing the above policy, dated September 20, 
1999, from Steven A. Herman, Assistant Administrator for Enforcement 
and Compliance Assurance and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, entitled ``State Implementation Plans: Policy 
Regarding Excess Emissions During Malfunctions, Startup, and Shutdown'' 
(1999 Policy); EPA's final rule for Utah's sulfur dioxide control 
strategy (Kennecott Copper), April 27, 1977 (42 FR 21472); EPA's final 
rule for Idaho's sulfur dioxide control strategy, November 8, 1977 (42 
FR 58171); and the latest clarification of EPA's policy issued on 
December 5, 2001 (2001 Policy). See the policy or clarification of 
policy at: http://www.epa.gov/ttn/oarpg/t1pgm.html (URL dating July 22, 
2008). The EPA's interpretation that the Act prohibits the inclusion in 
SIPs of automatic exemptions from emission limitations for sources in 
certain startup, shutdown, or malfunction situations was upheld by the 
United States Court of Appeals for the Sixth Circuit in Michigan 
Department Of Environmental Quality v. Browner, 230 F.3d 181 (6th Cir. 
2000).

C. What is the background for this proposed rulemaking action?

    On March 30, 2005 (70 FR 16129), we granted limited approval to SIP 
revisions to Chapter 101, Subchapter A and Subchapter F, including 
sections 101.221 (Operational Requirements), 101.222 (Demonstrations), 
and 101.223 (Actions to Reduce Excessive Emissions). The rules 
concerned reporting and recordkeeping requirements and enforcement 
actions for excess emissions during startup, shutdown, maintenance, and 
malfunction activities. We granted limited rather than full approval of 
that submission because we found sections 101.222(c) and (e) were 
ambiguous because they could be interpreted to provide an exemption 
from SIP permitting requirements or an affirmative defense for certain 
scheduled maintenance activities. See also our May 9, 2005 (70 FR 
24348) proposal, and August 26, 2005 (70 FR 50205) final rule granting 
limited approval to an extension of the expiration dates for sections 
101.221, 101.222 and 101.223 to June 30, 2006. As discussed below, 
however, the approved provisions, 30 TAC 101.221, 101.222, and 101.223 
have expired by their own terms, are no longer part of the Texas SIP, 
and therefore are no longer enforceable under the SIP.
    On January 26, 2006 we received a letter, dated January 23, 2006, 
from the Chairman of the TCEQ requesting EPA review and approve 
revisions to 30

[[Page 26894]]

TAC, General Air Quality Rule 101, Subchapter A General Rules; and 
Subchapter F Emissions Events and Scheduled Maintenance, Startup, and 
Shutdown Activities. The January 23, 2006 submittal included revised 30 
TAC sections 101.1 (Definitions), 101.201 (Emissions Event Reporting 
and Recordkeeping Requirements), 101.211 (Scheduled Maintenance, 
Startup, and Shutdown Reporting and Recordkeeping Requirements), and 
new sections 101.221 (Operational Requirements), 101.222 
(Demonstrations), and 101.223 (Actions to Reduce Excessive Emissions). 
The previous version of sections 101.221, 101.222, and 101.223 approved 
into the SIP in 2005 expired from the Texas SIP, by their own terms, on 
June 30, 2006. On March 23, 2006, we determined the January 23, 2006 
submittal administratively complete as reflected in a letter to the 
Chairman of the TCEQ. This administrative completeness letter is a part 
of the docket and available for public review. On February 8, 2007, EPA 
met with TCEQ to discuss issues related to the January 23, 2006 SIP 
submittal. TCEQ responded to our questions in a letter dated April 17, 
2007 from John F. Steib, Jr, Deputy Director, TCEQ Office of Compliance 
and Enforcement to John Blevins, Director EPA Compliance Assurance and 
Enforcement Division (April 17, 2007 letter). The April 17, 2007 letter 
is included in the docket for this action.
    We have reviewed the January 23, 2006 submittal including Texas' 
response to our August 8, 2005 comment letter, and the April 17, 2007 
letter and determined that, with the exception of the affirmative 
defense provisions discussed below, the January 23, 2006 SIP submittal 
is consistent with our interpretation of the Act. See section D of this 
document for more information. We have determined that one of the 
affirmative defense provisions, new section 101.222(h) (Planned 
Maintenance, Startup, or Shutdown Activity) of the January 23, 2006 
submittal is inconsistent with the Act as interpreted in EPA policy and 
guidance, and therefore we are proposing disapproval of the new section 
101.222(h), and two related provisions new sections 101.222(i), and 
101.222(j). See section E of this document for more information. If we 
take final action to disapprove the new sections 101.222(h), (i) and 
(j), no sanctions or Federal Implementation Plan clocks will be started 
under section 179(b) of the Act, because Texas did not submit these 
provisions to satisfy a mandatory requirement of the Act. A final 
disapproval action will mean that no affirmative defense against civil 
penalties will exist in the federally approved SIP for violations that 
occur during planned maintenance, startup, or shutdown activities.

D. Why are we proposing approval of portions of the January 23, 2006 
SIP submittal?

    The EPA interprets the Act such that all emissions in excess of 
limits established in a SIP, including among other things, state 
control strategies and New Source Review SIP permits, are violations of 
the applicable emission limitation because excess emissions have the 
potential to interfere with attainment and maintenance of the National 
Ambient Air Quality Standards (NAAQS), reasonable further progress, 
state control strategies, or with the protection of Prevention of 
Significant Deterioration (PSD) increments. However, EPA recognizes 
that imposition of a penalty for sudden and unavoidable malfunctions, 
startups or shutdowns caused by circumstances entirely beyond the 
control of the owner or operator may not be appropriate. The EPA has 
provided guidance on two approaches States may use in addressing such 
excess emissions: enforcement discretion and affirmative defense to 
civil penalties. Under an enforcement discretion approach, the State 
(or another entity, such as EPA, seeking to enforce a violation of the 
SIP) may consider the circumstances surrounding the event in 
determining whether to pursue enforcement. Under the affirmative 
defense approach, the State may establish an affirmative defense that 
may be raised in the context of an enforcement proceeding. In an 
enforcement action, the defendant may raise a response or defense in an 
action for civil penalties, regarding which the defendant has the 
burden to prove that certain criteria have been met. See page 2 of the 
attachment to the 1999 Policy.
    Neither approach may waive reporting requirements for the 
violation. States are not required to provide an affirmative defense 
approach, but if they choose to do so, EPA will evaluate the State's 
SIP rules for consistency with the Act as interpreted in our policy and 
guidance documents listed in section B above.
    We are proposing to approve Subchapter A, revised section 101.1 
(Definitions); and Subchapter F, revised sections 101.201 (Emissions 
Event Reporting and Recordkeeping Requirements) and 101.211 (Scheduled 
Maintenance, Startup, and Shutdown Reporting and Recordkeeping 
Requirements), and new sections 101.221 (Operational Requirements), 
101.222 (a) through (g) (Demonstrations), and 101.223 (Actions to 
Reduce Excessive Emissions), into the Texas SIP. TCEQ revised 
definitions in Subchapter A, section 101.1 as needed to implement 
Subchapter F and to implement other legislative changes. The changes 
define ``planned maintenance, startup, or shutdown'' and ``unplanned 
maintenance, startup, or shutdown'' activities; ``excess opacity 
event;'' and ``emissions event;'' and replace the terms ``facility'' 
and ``site'' with ``regulated entity.'' The submittal also includes 
several revisions to the SIP definition of ``reportable quantity.'' See 
section 9 of the TSD for more information. We believe that the 
revisions to section 101.1 will provide for consistency among 
subchapters A and F, and will facilitate implementation of the rule. 
Therefore, we are proposing to approve the submitted revisions to 
section 101.1. Although we are proposing to approve all of the changes 
to the definitions section 101.1, including the definition for 
``planned maintenance, startup, or shutdown,'' as we have stated we are 
proposing to disapprove the regulatory provisions that would provide an 
affirmative defense for violations during these events. Our approval of 
the submitted definition ``planned maintenance, startup, or shutdown'' 
insures that the reporting and recordkeeping requirements for these 
events will be appropriately applied.
    Revisions to sections 101.201 (Emissions Event Reporting and 
Recordkeeping Requirements) relate to how and where to report excess 
emission events. The revisions make numerous changes to the terms of 
the currently approved SIP, including adding requirements to file 
initial notifications and final reports with the local air pollution 
agencies with jurisdiction and to include TCEQ's regulated entity 
number with the report; modifying the requirement to report by facility 
to instead require reporting by emission point; allowing reporting 
without speciation of the pollutants emitted for events that have a 
reportable quantity less than 100 pounds or amounts less than ten 
pounds per 24 hours. Texas made a number of other minor revisions to 
clarify reporting requirements that are described in section 10 of the 
TSD. We believe that these other revisions to the reporting 
requirements will facilitate implementation of the rule by clarifying 
the existing reporting requirements and establishing a new requirement 
that

[[Page 26895]]

local air pollution authorities be informed of emissions events. See 
section 10 of the TSD for more information. Therefore, we are proposing 
to approve the revisions to section 101.201.
    Revisions to 101.211 (Scheduled Maintenance, Startup, and Shutdown 
Reporting and Recordkeeping Requirements). This section of the SIP was 
last approved on March 30, 2005 (70 FR 16129) and had no expiration 
date. See Table II of the TSD. This section describes the requirements 
for owners and operator to make an initial notification at least 10 
days prior to a scheduled maintenance, startup or shutdown activity and 
the requirements to provide a final report within 2 weeks after the 
event. Texas revised the rules to clarify that, if during a scheduled 
maintenance activity additional maintenance is required that results in 
unanticipated emissions, and that the maintenance was unforeseeable and 
requires immediate corrective action to avoid a malfunction, then the 
event is considered an unplanned maintenance activity or an upset 
depending on the reasons. This change is relevant to the affirmative 
defense provisions in section 101.222 which require different criteria 
to be demonstrated in order to assert the affirmative defense for 
upsets and unplanned maintenance emission events versus planned 
maintenance, startup, and shutdown activities. Another change to 
section 101.211 requires pre-reporting of the expected duration of any 
maintenance, startup or shutdown activity. Section 101.211(f) adopts 
the requirement for annual reporting of emissions resulting from 
scheduled maintenance, startup, and shutdown activities by a regulated 
entity. For entities subject to emission inventory (EI) reporting, the 
annual emissions event report must be submitted with the EI report. The 
annual emissions event report must include the total number of 
reportable and non-reportable emissions events and quantity of 
emissions experienced at the regulated entity. Major sources statewide 
and minor sources in nonattainment, maintenance, early action compact 
areas, and Nueces and San Patricio Counties are subject to the annual 
emissions event reporting requirements. See section 7 of the TSD for 
more information. These revisions to section 101.211 will provide for 
reporting and recordkeeping provisions associated with scheduled 
maintenance, startup, and shutdown events, and will facilitate tracking 
of these events. Therefore, we are proposing to approve the revisions 
to section 101.211. If our proposed approval of these reporting 
requirements for scheduled maintenance, startup and shutdown events is 
finalized, it only means that facilities will need to make these 
required notifications. If we finalize our proposed disapproval of 
section 101.222(h), an affirmative defense will not be available for 
violations due to excess emissions during planned maintenance, startup, 
or shutdown activities.
    New Section 101.221 (Operational Requirements) discusses the 
requirement to maintain air pollution equipment in good working order. 
A previous version of this section was part of the SIP but that 
provision expired. This new section is important because it provides 
the requirement that air pollution abatement equipment must be 
maintained and in good working order. Paragraph (d) in Section 101.221 
provides that the commission may exempt sources from control 
requirements when there is a lack of technical knowledge. The new 
section 101.221 also clarifies that no exemptions can be authorized by 
the commission for any federal requirements to maintain air pollution 
control equipment, including requirements such as New Source 
Performance Standards (NSPS) or National Emissions Standards for 
Hazardous Air Pollutants (NESHAP). In its letter of April 17, 2007, 
Texas confirmed that the term ``federal requirements'' includes any 
requirement in the federally-approved SIP. Thus, the State interprets 
this provision not to apply where the control requirement that has been 
approved as part of the SIP. We believe that this interpretation is 
critical to allowing us to approve the provision into the SIP. If the 
TCEQ were to be allowed to exempt sources from control requirements 
specified in the SIP, such action could undermine the attainment and 
maintenance of the NAAQS. Thus, new section 101.221 is approvable only 
because the State has clarified that it does not allow exemptions to be 
provided for federal requirements including any requirement in the 
federally-approved SIP. See sections 13 and 14 of the TSD for more 
information.
    New section 101.222 (Demonstrations) provides an affirmative 
defense for certain emission events. Emission events are defined in the 
Texas rules as upsets that result in unauthorized emissions. Upsets are 
defined in the Texas rules similar to the term malfunction used in 
EPA's guidance. Section 101.222(a) provides criteria in 101.222(a)(1) 
through 101.222(a)(6) to determine if an emission event is excessive. 
If emission events are determined by the executive director to be 
excessive, the source may not assert an affirmative defense under 
sections 101.222(b) through 101.222(e). Section 101.222(b) adopts an 
affirmative defense for non-excessive upset events. We have determined 
that the affirmative defense provided by section 101.222(b) is 
consistent with the interpretation of the Act set forth in our 1999 
Policy for the following reasons: (1) The rule does not provide an 
exemption from compliance with applicable emission limitations; (2) The 
affirmative defense provided is limited to upset or malfunctions; (3) 
The affirmative defense applies only to a judicial or administrative 
enforcement action for a violation of applicable emission limitations; 
(4) The defense applies only to civil penalties and cannot be asserted 
for an enforcement action for injunctive relief. (5) The rule specifies 
criteria, which must be met in order to assert the defense that are 
consistent with those outlined in EPA's 1999 Policy; (6) The burden to 
prove that the criteria have been met is on the owner or operator; (7) 
A determination by TCEQ that the criteria have been met does not 
constitute a waiver of liability for the violation; (8) Nothing in the 
rule, including a determination by the TCEQ, would bar EPA or a citizen 
suit enforcement action for the emission violation; (9) The affirmative 
defense cannot be asserted where the unauthorized emissions cause or 
contribute to an exceedance of the NAAQS, PSD increments or to a 
condition of air pollution; (10) The affirmative defense may not be 
asserted against Federal performance or technology-based standards such 
as NSPS or NESHAP; (11) The affirmative defense may not be asserted 
where the Executive Director of TCEQ determines that the emissions 
event is excessive under the criteria in section 101.222(a); and (12) 
The emissions event must be reported to TCEQ under section 101.201 in 
order for the owner or operator to assert the affirmative defense.
    Sections 101.222(c) and 101.222(e) provide a similar affirmative 
defense for unplanned maintenance, startup or shutdown activities that 
arise from sudden and unforeseeable events beyond the control of the 
operator that require immediate corrective action to minimize or avoid 
an upset or malfunction. This provision allows an affirmative defense 
where the source or operator has the burden to prove that maintenance 
activities undertaken arose from sudden or unforeseeable events beyond 
the control of the operator, that

[[Page 26896]]

immediate corrective action was required to minimize or avoid an upset 
or malfunction and that the criteria in section 101.222(c) or (e) have 
been met. TCEQ provided supplemental information concerning sections 
101.222(c) and (e) in a letter dated April 17, 2007 (included in the 
docket for this action and available for public review) in response to 
questions from EPA. The April 17, 2007 letter confirmed that TCEQ 
interprets that unplanned maintenance events are ``functionally 
equivalent to EPA's `malfunction' with regards to applicability of an 
affirmative defense.'' See section 101.1(109)(B). Also see Tables III 
and VIII of our TSD. The EPA agrees that TCEQ's treatment of 
``unplanned maintenance, startup, or shutdown activity'' is 
functionally equivalent to EPA's policy definition of malfunction. See 
pages 1 and 2 of the April 17, 2007 letter for details. In addition, 
the affirmative defense provided by TCEQ, including the criteria that a 
source must prove in asserting the affirmative defense is consistent 
with EPA's recommended policy approach for providing an affirmative 
defense for excess emissions during a malfunction. Therefore, we are 
proposing approval of 101.222(c) and (e) into the Texas SIP.
    As discussed elsewhere, we are proposing to disapprove section 
101.222(h), which provides an affirmative defense for excess emissions 
during periods of planned maintenance, startup or shutdown activities. 
Sections 101.222(c)(1) and 101.222(e)(1) both include requirements for 
facilities to report scheduled maintenance, startup, or shutdown 
activities. Our approval of sections 101.222(c)(1) and 101.222(e)(1) 
only affirms a facility's requirement to provide notification of these 
events. However, while we believe that it is appropriate for sources to 
report such events, we do not believe that it is appropriate to provide 
an affirmative defense for penalties for excess emissions during these 
planned events. Because these events are planned, we believe that 
sources should be able to comply with applicable emission limits during 
these periods of time. As discussed elsewhere, if we finalize our 
disapproval of section 101.222(h), an affirmative defense will not be 
available for unauthorized emissions during these activities.
    Section 101.222(d) concerns excess opacity events due to an upset 
or opacity events that are not emissions events. As noted previously, 
emissions events are upsets that result in unauthorized emissions. See 
101.1(28). Upsets are defined in the Texas rules similar to the term 
malfunction used in EPA's guidance. See Table IV of our TSD. The 
affirmative defense criteria in section 101.222(d) are specifically 
tailored for opacity related activities and follow the pattern of the 
criteria in 101.222(b). Therefore, we are proposing to approve the 
criteria in the section 101.222(d) provision for the same reasons we 
believe the criteria in 101.222(b) are consistent with our 
interpretation of the Act as outlined in our 1999 Policy, and we are 
proposing to approve section 101.222(d). See Table VII of our TSD for 
more information.
    We are proposing to approve section 101.222(f) (Obligations) 
because this section provides that an affirmative defense cannot apply 
to violations of federally promulgated performance or technology-based 
standards, such as those found in 40 CFR parts 60, 61, and 63. This is 
consistent with EPA's interpretation of the Act as provided in the 1999 
Policy at page 3.
    New Section 101.223 (Actions to Reduce Excessive Emissions) 
provides for a corrective action plan and written notification 
concerning excessive emission events. This section will enhance the 
Texas SIP by providing a clear requirement for facilities determined to 
have excessive emission events to take necessary corrective actions to 
reduce the future occurrence of such events.
    In summary, we are proposing approval of 30 TAC, General Air 
Quality Rule 101, Subchapter A, revised section 101.1 (Definitions); 
and Subchapter F, revised sections 101.201 (Emissions Event Reporting 
and Recordkeeping Requirements) and 101.211 (Scheduled Maintenance, 
Startup, and Shutdown Reporting and Recordkeeping Requirements), and 
new sections 101.221 (Operational Requirements), 101.222 
(Demonstrations, except 101.222(h), 101.222(i), and 101.222(j)), and 
101.223 (Actions to Reduce Excessive Emissions) into the Texas SIP.

E. Why are we proposing disapproval of sections 101.222(h), 101.222(i), 
and 101.222(j) of the January 23, 2006 SIP submittal?

    New Section 101.222(h) provides a temporary affirmative defense for 
planned maintenance, startup, or shutdown activity emissions, which are 
currently unauthorized, meet certain criteria, and have been reported 
in accordance with section 101.211. See section 101.1(109) or Table III 
of our TSD for the definition of unplanned maintenance, startup, or 
shutdown activity.
    This section (101.222(h)) also sets forth a time table for an owner 
or operator to file a permit application to authorize startup, 
shutdown, and maintenance activities from routine or normal operations 
based on facility's SIC code. The affirmative defense for planned 
maintenance, startup, or shutdown activities expires the earlier of one 
year after the application deadlines in the rule or upon issuance or 
denial of a permit to authorize planned maintenance, startup, or 
shutdown activities. We believe that section 101.222(h) (Planned 
Maintenance, Startup, or Shutdown Activity) is inconsistent with the 
Act as interpreted in EPA's long-standing national policy on excess 
emissions during startup, shutdown, maintenance, and malfunction 
activities and in actions taken by EPA regarding excess-emissions-
related SIP revisions for other states; therefore, we are proposing 
disapproval of the provision. If we finalize the disapproval, this 
provision would not be included as part of the Texas SIP.
    Section 101.222(h) provides an affirmative defense for planned 
maintenance activities. It is EPA's long-standing position expressed in 
guidance documents and other rulemakings that planned maintenance 
activities are predictable events that are subject to planning to 
minimize releases, unlike malfunctions or upsets, which are sudden, 
unavoidable or beyond the control of the owner or operator. Thus, 
States should require sources to comply with the applicable emission 
limits during these activities. The EPA's interpretation of section 110 
of the Act and related policies allows an affirmative defense to be 
asserted against civil penalties in an enforcement action for excess 
emissions activities which are sudden, unavoidable or caused by 
circumstances beyond the control of the owner or operator and where 
emissions control systems may not be consistently effective, such as 
during startup or shutdown periods.\1\ However, EPA has determined that 
it is inappropriate to provide an affirmative defense for excess 
emissions resulting from planned maintenance. The source or operator 
should be able to plan maintenance that might otherwise lead to excess 
emissions to coincide with maintenance of production equipment or other 
facility shutdowns. Thus, EPA

[[Page 26897]]

did not provide for an affirmative defense during maintenance 
activities in the 1999 Policy. Because these events can be planned and 
because control equipment can be consistently effective during 
maintenance, EPA does not believe it is appropriate under the Act to 
allow an affirmative defense for any excess emissions during 
maintenance activities; any such events should be addressed only 
through the exercise of enforcement discretion. Also see 72 FR 5238 
published February 5, 2007. We expressed our concern about providing an 
affirmative defense to section 101.222(h) related activities in our 
August 8, 2005 comment letter to TCEQ (Comment 16); however, 
TCEQ did not incorporate our comment in its final adoption of the rule 
that was submitted to EPA. We have placed our August 8, 2005 comment 
letter to TCEQ in the docket where it is available for public review. 
Also, see April 27, 1977 (42 FR 21472); November 8, 1977 (42 FR 58171); 
and August 23, 2000 (65 FR 51412). For the above reasons, we are 
proposing to disapprove section 101.222(h).
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    \1\ We also note that we generally believe that for planned 
startup and shutdown events, most sources should be able to comply 
with applicable emission limitations. However, for those sources and 
source categories where such compliance is not possible, the State 
should develop alternative, applicable emission limits for such 
events, which they can consider in SIPs demonstrating attainment and 
maintenance of the NAAQS, rather than establishing an affirmative 
defense for such emission events.
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    Section 101.222(i) concerns the scheduling and applicable effective 
dates for permit applications submitted to TCEQ requesting that 
unauthorized emissions associated with the planned maintenance, 
startup, or shutdown activities be permitted. Since section 101.222(i) 
is not severable from section 101.222(h), which we are proposing to 
disapprove, we are proposing to disapprove section 101.222(i), as well.
    Section 101.222(j) concerns processing of permit applications 
referenced in 101.222(h), and provides the Executive Director with the 
authority to process, review, and permit unauthorized emissions from 
planned maintenance, startup, or shutdown activities. We explained our 
reasons for proposing to disapprove section 101.222(h) above. Since 
section 101.222(j) is not severable from section 101.222(h), which we 
are proposing to disapprove, we are proposing to disapprove section 
101.222(j), as well.
    Based on our review of the January 23, 2006 submittal, we believe 
our disapproval of the submitted new sections 101.222(h), 101.222(i), 
and 101.222(j), which would result in such provisions not being 
included in the approved SIP, does not change the meaning or stringency 
of the portions of the January 23, 2006 SIP submittal that we are 
approving and that would become a part of the federally enforceable 
SIP. Therefore, sections 101.222(h), 101.222(i), and 101.222(j) are 
severable from the remaining sections of the SIP and can be 
disapproved. See section 20 of our TSD for more information.

F. What happens if Texas continues to implement section 101.222(h) as a 
State law?

    Historically, emissions from startup, shutdown and maintenance 
activities were not included in Texas air permits or authorizations; 
instead, such emissions were subject to the State's emission events 
rules. The EPA expects all emissions, including those emissions during 
startup, shutdown and maintenance activities, to be addressed in 
permits issued under or authorizations provided by the approved SIP. 
Texas chose to adopt a schedule for sources to apply for and the State 
to issue air permits to include emissions due to planned maintenance, 
startup, or shutdown. Permit provisions addressing emission limitations 
for planned maintenance, startup, or shutdown activities cannot 
interfere with compliance with applicable SIP requirements. For 
example, a permit rule cannot alter or provide relief from the emission 
limits set forth in 30 TAC Chapter 115 for Volatile Organic Compounds 
or Chapter 117 for Oxides of Nitrogen.
    Texas adopted this schedule through rulemaking in the new section 
101.222(h), which EPA has proposed to disapprove because it provides an 
affirmative defense for facilities with permits that do not include 
emission limitations for these types of activities during the 
transition period. Under the State rule, which EPA has proposed not be 
approved into the SIP, once a facility receives a new federally 
enforceable permit or authorization that includes emission limitations 
for these activities, an affirmative defense is no longer available. If 
the permittee has emissions that exceed an emission limit in a SIP 
permit and those emissions are due to planned maintenance, startup, or 
shutdown activities that had not been considered in the original 
issuance of the permit to a facility, this exceedance can still be a 
violation of the SIP. As noted previously, these permits cannot be 
inconsistent with the applicable SIP.
    Thus, if EPA takes final action to disapprove section 101.222(h), 
and Texas continues to implement the new section 101.222(h) as a State 
law, there will be a ``gap'' between State law and Federal law in the 
EPA-approved Texas SIP. The federally-approved SIP will not provide an 
affirmative defense for planned maintenance, startup, or shutdown 
activities, and EPA or other parties could seek enforcement of the 
federally-approved limits in federal court. In addition, as stated 
above, any alternative limits established through the permitting 
process cannot be inconsistent with the applicable SIP.
    We want to make it clear that if we finalize this rulemaking 
action, sources subject to the Chapter 101 Emission Events rules should 
be aware of the gap between the EPA-approved SIP and the revised State 
rules for excess emissions from such activities. The current EPA-
approved SIP does not provide for an affirmative defense to civil 
penalties in an EPA or citizen suit enforcement action for an 
exceedance of a SIP requirement. If we finalize disapproval of sections 
101.222(h), 101.222(i) and 101.222(j), the EPA-approved SIP will 
provide an affirmative defense only for unplanned activities and will 
continue to not provide an affirmative defense to a federal enforcement 
action for violation of a SIP requirement due to planned activities.
    The EPA considers any emissions not authorized under the Act or the 
regulations promulgated or approved thereunder (e.g., exceedance of an 
emission limitation or other applicable SIP requirement) a violation. 
Any such unauthorized emissions should be reported as a deviation under 
title V reporting and/or other applicable reporting requirements. Under 
the Act, EPA and citizens may enforce the EPA-approved SIP as federal 
law. Thus, as provided above, regulated sources remain subject to the 
requirements of the EPA-approved SIP and subject to potential 
enforcement for violations of the SIP during a ``SIP gap.'' See EPA's 
Revised Guidance on Enforcement During Pending SIP Revisions, dated 
March 1, 1991. A source must comply with the EPA-approved SIP until and 
unless it is revised. See Train v. NRDC, 421 U.S. 60 (1975).

II. Proposed Action

    Today, we are proposing to approve into the Texas SIP the following 
provisions of 30 TAC General Air Quality Rule 101 as submitted on 
January 23, 2006:

Subchapter A

    Revised section 101.1 (Definitions); and

Subchapter F

    Revised Section 101.201 (Emissions Event Reporting and 
Recordkeeping Requirements),
    Revised Section 101.211 (Scheduled Maintenance, Startup, and 
Shutdown Reporting and Recordkeeping Requirements),
    New Section 101.221 (Operational Requirements),

[[Page 26898]]

    New Section 101.222 (Demonstrations), except 101.222(h), 
101.222(i), and 101.222(j)),
    New Section 101.223 (Actions to Reduce Excessive Emissions).
    We are also proposing to disapprove sections 101.222(h) (Planned 
Maintenance, Startup, or Shutdown Activity), 101.222(i) (concerning 
effective date of permit applications), and 101.222(j) (concerning 
processing of permit applications) into Texas SIP. The EPA is proposing 
to find that these 3 sections (101.222(h), 101.222(i), and 101.222(j)) 
are not severable from each other.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. If a portion of the plan revision meets 
all the applicable requirements of this chapter and Federal 
regulations, the Administrator may approve the plan revision in part. 
42 U.S.C. 7410(k); 40 CFR 52.02(a). If a portion of the plan revision 
does not meet all the applicable requirements of this chapter and 
Federal regulations, the Administrator may then disapprove portions of 
the plan revision in part that does not meet the provisions of the Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices that meet the criteria of the Act, and to disapprove state 
choices that do not meet the criteria of the Act. Accordingly, this 
proposed action, in part, approves state law as meeting Federal 
requirements and, in part, disapproves state law as not meeting Federal 
requirements; and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act;
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994); and
     This rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

    Authority:  42 U.S.C. 7401 et seq.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: May 5, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. 2010-11429 Filed 5-12-10; 8:45 am]
BILLING CODE 6560-50-P