No. 35865 (Repeal and Reenact): Rule R307-107. General Requirement:Unavoidable Breakdown

(Repeal and Reenact)

DAR File No.: 35865
Filed: 02/09/2012 10:34:38 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

On 04/18/2011, the Environmental Protection Agency (EPA) published a final rule Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision 76 FR 21639. According to the EPA, Utah's unavoidable breakdown rule "undermines EPA's, Utah's, and citizens' ability to enforce emission limitations that have been relied on to ensure attainment or maintenance of the NAAQS or meet other CAA requirements. EPA is requiring that the State revise the SIP to remove Rule R307�107 or correct its deficiencies and submit the revised SIP to EPA within 18 months of the effective date of this final rule." Id. EPA has given Utah two options to avoid possible sanctions: withdraw the rule from the SIP or revise the rule to address the deficiencies by 11/18/2011. The outcome of a stakeholder process to develop the current proposed rule is called an Enforcement Discretion approach. Other stakeholders supported an approach called an Affirmative Defense. The Utah Air Quality Board is proposing to repeal the current Rule R307-107, and replace it with an Enforcement Discretion rule, a copy of which is submitted with this notice. As part of this rulemaking, the Board decided it would solicit public comment on an alternative Affirmative Defense rule that is approvable by EPA. EPA has approved in part, and denied in part, an Affirmative Defense rule submitted by the State of Colorado. See link to EPA's ruling on the Colorado Affirmative Defense: https://www.federalregister.gov/articles/2006/02/22/06-1567/approval-and-disapproval-and-promulgation-of-air-quality-implementation-plans-colorado-affirmative. See link to the Colorado rule http://www.cdphe.state.co.us/regulations/airregs/5CCR1001-2.pdf. The Board is also soliciting comments on an option to withdraw the existing unavoidable breaking rule from the State Implementation Plan. Comments to DAQ may be made through the DAQ website at http://www.airquality.utah.gov/Public-Interest/Public-Commen-Hearings/Pubrule.htm or by post mailing: Joel Karmazyn, Division of Air Quality, PO Box 144820, Salt Lake City, UT 84114-4820.

Summary of the rule or change:

Substantive changes to the current rule: In Section R307-107-1, Application, excess emissions from breakdowns are not currently deemed a violation. The amendment excludes this provision. Also in Section R307-107-1, Application, predictable excess emissions authorization is being eliminated. In Section R307-107-2, Reporting, the breakdown threshold of two hours before required reporting is being eliminated. All excess emissions from a breakdown shall be reported. Also in Section R307-107-2, Reporting, the requirement to file an incident report is being modified from 3 to 18 hours after the beginning of the breakdown to within 24 hours. Also in Section R307-107-2, Reporting, the incident report filing requirement has been extended from 7 days to 14. Also in Section R307-107-2, Reporting, the amendment removes the violation determination by the executive secretary but retains enforcement discretion. Section R307-107-3, Penalties, is deleted. In Section R307-107-4, Procedures is being replaced with the amended Section R307-107-2. The amended section more precisely specifies the owner/operator responsibilities regarding response to an incident and subsequent reporting. Section R307-107-5, Violations, is deleted. Section R307-107-6, Emissions Standards, is deleted. Section R307-107-3, Enforcement Discretion, is a new section describing the executive secretary discretion to pursue enforcement action pending review of the incident report.

State statutory or constitutional authorization for this rule:

• Section 19-2-104

Anticipated cost or savings to:

the state budget:

None--Does not impact state budget because this rule is already in effect.

local governments:

None--Because this rule is already in effect.

small businesses:

Not expected--Rule predominately applies to large sources.

persons other than small businesses, businesses, or local governmental entities:

Some additional report filing may be necessary for the Enforcement Discretion rule due to removal of 2 hour applicability. Since the rule applies to only excess emissions, additional filings should not be excessive.

Compliance costs for affected persons:

Some additional report filing may be necessary for the Enforcement Discretion rule due to removal of 2 hour applicability. Since the rule applies to only excess emissions, additional filings should not be excessive.

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

Minimal increase from some potential additional reporting.

Amanda Smith, Executive Director

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

Environmental Quality
Air QualityRoom Fourth Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Joel Karmazyn at the above address, by phone at 801-536-4423, by FAX at 801-536-4099, or by Internet E-mail at [e-mail]

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:

04/02/2012

Interested persons may attend a public hearing regarding this rule:

• 03/20/2012 09:00 AM, Multi-agency State Office Building, 195 N 1950 W, Conference Room No. 4100, Salt Lake City, UT

This rule may become effective on:

06/06/2012

Authorized by:

Bryce Bird, Director

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 [phone]. 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.]

R307-107-1. Applicability and Timing.

(1) The owner or operator of a source shall report breakdowns to the executive secretary within 24 hours of the incident via telephone, electronic mail, fax, or other similar method.

(2) A detailed written description of the circumstance of the incident as described in R307-107-2, including a corrective program directed at preventing future such incidents, shall be submitted within 14 days of the onset of the incident.

(a) The executive secretary may extend the 14 day time period for submission of the incident report for cause.

 

R307-107-2. Reporting.

(1) The unavoidable breakdown incident report shall include the cause and nature of the event, estimated quantity of emissions (total and excess), time of emissions and any relevant evidence, including, but not limited to, evidence that:

(a) There was an equipment malfunction beyond the reasonable control of the owner or operator;

(b) The excess emissions could not have been avoided by better operation, maintenance or improved design of the malfunctioning component;

(c) To the maximum extent practicable, the source maintained and operated the air pollution control equipment and process equipment in a manner consistent with good practice for minimizing emissions, including minimizing any bypass emissions;

(d) Any necessary repairs were made as quickly as practicable, using off-shift labor and overtime as needed and as possible;

(e) All practicable steps were taken to minimize the potential impact of the excess emissions on ambient air quality; and

(f) The excess emissions are not part of a recurring pattern that may have been caused by inadequate operation or maintenance, or inadequate design of the malfunctioning component.

(2) The burden of proof is on the owner or operator of the source to provide sufficient information to demonstrate an unavoidable breakdown occurred.

 

R307-107-3. Enforcement Discretion.

The executive secretary will evaluate, on a case-by-case basis, the information submitted in R307-107-1 and 2 to determine whether to pursue enforcement action. The executive secretary may elect not to pursue enforcement action after considering whether excess emissions resulted from an unavoidable breakdown.

 

KEY: air pollution, unavoidable breakdown[*], excess emissions[*]

Date of Enactment or Last Substantive Amendment: [September 15, 1998]2012

Notice of Continuation: September 4, 2008

Authorizing, and Implemented or Interpreted Law: 19-2-104

 

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