Current State Current State IssuesIssues

in Title V in Title V PermittingPermitting

Matthew A. PaqueMatthew A. PaqueEnvironmental Attorney Environmental Attorney

SupervisorSupervisorOklahoma Department of Oklahoma Department of

Environmental QualityEnvironmental QualityOffice of General CounselOffice of General Counselmatt.paque@deq.state.ok.usmatt.paque@deq.state.ok.us

Excess Emissions Excess Emissions ReportingReporting

Nothing in the Clean Air Act (CAA) Nothing in the Clean Air Act (CAA) provides for automatic exemption provides for automatic exemption of compliance during of compliance during upset/malfunction conditions.upset/malfunction conditions.

In relation to meeting certain air In relation to meeting certain air quality standards, such as National quality standards, such as National Ambient Air Quality Standards Ambient Air Quality Standards (NAAQS), and Prevention of (NAAQS), and Prevention of Significant Deterioration (PSD), Significant Deterioration (PSD), the law is clear that State the law is clear that State Implementation Plans (SIPs) shall Implementation Plans (SIPs) shall ensure absolute compliance.ensure absolute compliance.

On their face, many state excess On their face, many state excess emissions reporting rules could be read emissions reporting rules could be read as failing to ensure compliance with the as failing to ensure compliance with the CAA by allowing an automatic exemption CAA by allowing an automatic exemption in relation to compliance with among in relation to compliance with among other things, the NAAQs and PSD.other things, the NAAQs and PSD.

“OAC 252:100-9-3.3. Demonstration of cause

(a) Malfunctions. Excess emissions caused by malfunction are exempt from compliance with air emission limitations established in permits, rules, and orders of the DEQ if the owner or operator complies with the requirements of 252:100-9-3.1 and (c) of this

Section…”

In 1978, EPA adopted an excess In 1978, EPA adopted an excess emissions policy which considers emissions policy which considers allall periods of excess emissions to periods of excess emissions to be violations of the CAA.be violations of the CAA.

In subsequent EPA policy In subsequent EPA policy statements, CAA interpretations, statements, CAA interpretations, guidance documents, and guidance documents, and administrative rules and orders, administrative rules and orders, EPA has consistently and clearly EPA has consistently and clearly reaffirmed that position. (See reaffirmed that position. (See references)references)

EPA has also stated that automatic EPA has also stated that automatic exemptions will not be allowed.exemptions will not be allowed.

An affirmative defense may be An affirmative defense may be permitted only with respect to permitted only with respect to penalties, not to injunctive relief, penalties, not to injunctive relief, and only when no single source or and only when no single source or small group of sources has the small group of sources has the potential to cause an exceedance of potential to cause an exceedance of NAAQs or PSD requirements and NAAQs or PSD requirements and when there is no violation of when there is no violation of federally promulgated performance federally promulgated performance standards or emission limitations.standards or emission limitations.

In cases where an affirmative In cases where an affirmative defense may apply, a state defense may apply, a state director must exercise his or her director must exercise his or her enforcement discretion and enforcement discretion and cannot avoid that case-by-case cannot avoid that case-by-case obligation by allowing an obligation by allowing an automatic exemption.automatic exemption.

The policy of identifying all The policy of identifying all excess emissions as CAA excess emissions as CAA violations and its disallowance of violations and its disallowance of automatic exemptions is automatic exemptions is consistent with the CAA.consistent with the CAA.

SIPs protect ambient based SIPs protect ambient based standards.standards. Emissions above the allowable Emissions above the allowable

limits may cause or contribute to limits may cause or contribute to violations of the NAAQs and are violations of the NAAQs and are therefore inexcusable. therefore inexcusable.

EPA has determined that if there EPA has determined that if there are circumstances preventing are circumstances preventing sources from complying with the sources from complying with the SIP during upset/malfunction, SIP during upset/malfunction, the state must address these the state must address these problems in the underlying rules problems in the underlying rules applicable to those sources and applicable to those sources and notnot through overarching excess through overarching excess emission provisions. emission provisions.

Malfunctions typically result Malfunctions typically result from equipment failure or from equipment failure or improper maintenance and can improper maintenance and can result in excess emissions. result in excess emissions.

EPA and states have a EPA and states have a responsibility under the CAA to responsibility under the CAA to ensure that SIPs provide for ensure that SIPs provide for attainment and maintenance of attainment and maintenance of the NAAQs and protection of the NAAQs and protection of PSD increments.PSD increments.

Pursuant to Section 110(l), EPA Pursuant to Section 110(l), EPA may not approve a SIP revision if may not approve a SIP revision if “the revision would interfere “the revision would interfere with any applicable requirement with any applicable requirement concerning attainment and concerning attainment and reasonable further progress, or reasonable further progress, or any other applicable any other applicable requirement of this chapter.” requirement of this chapter.”

Because of a malfunction Because of a malfunction exemption it could be exemption it could be inappropriate to classify a inappropriate to classify a modification as “minor” in modification as “minor” in relation to PSD requirements.relation to PSD requirements.

A recent comment from EPA on a PSD permit A recent comment from EPA on a PSD permit application:application:““It appears that It appears that emissions that result from start-up, emissions that result from start-up, shutdown and maintenance activity, or malfunctions shutdown and maintenance activity, or malfunctions are not included in the annual potential to emit are not included in the annual potential to emit calculations or that those emissions are considered in calculations or that those emissions are considered in compliance with BACT emission limits.compliance with BACT emission limits. Please clarify Please clarify how the source will calculate compliance with how the source will calculate compliance with short-short-term and long-term BACT emission limits during term and long-term BACT emission limits during startup, shutdown, maintenance, or malfunctions.startup, shutdown, maintenance, or malfunctions. Alternatively, where ODEQ has made an on-record Alternatively, where ODEQ has made an on-record determination that compliance with BACT emission determination that compliance with BACT emission limitations is infeasible during startup, shutdown and limitations is infeasible during startup, shutdown and maintenance, you may establish secondary BACT limits maintenance, you may establish secondary BACT limits or work practices for those specific periods. Such or work practices for those specific periods. Such secondary limits or work practices must be justified as secondary limits or work practices must be justified as BACTBACT and you must ensure that all PSD requirements, and you must ensure that all PSD requirements, including compliance with National Ambient Air Quality including compliance with National Ambient Air Quality Standards and PSD increments, are met.” Standards and PSD increments, are met.”

Why this is important:Why this is important: States must have adequate SIPs;States must have adequate SIPs; Revised (tightened) NAAQS;Revised (tightened) NAAQS; Public awareness.Public awareness.

Problems for states:Problems for states: Excess emissions reporting issues;Excess emissions reporting issues; Resolution of violations and Resolution of violations and

adequate compliance measures;adequate compliance measures; Determining BACT for start-up, Determining BACT for start-up,

shutdown, malfunction.shutdown, malfunction.

ReferencesReferences Mich. Dep’t of Envtl. Quality v. Browner, 230 Mich. Dep’t of Envtl. Quality v. Browner, 230

F.3d 181, 183 (6F.3d 181, 183 (6thth Cir. 2000) (citing 42 Fed. Cir. 2000) (citing 42 Fed. Reg. 21,472 (Apr. 27, 1977)); Reg. 21,472 (Apr. 27, 1977));

See also Memorandum from Eric Shaffer, See also Memorandum from Eric Shaffer, Dir., Office of Regulatory Enforcement, and Dir., Office of Regulatory Enforcement, and John Seitz, Dir., Office of Air Quality Planning John Seitz, Dir., Office of Air Quality Planning and Standards, to Regional Administrators and Standards, to Regional Administrators Region I – X (Dec. 5, 2001);Region I – X (Dec. 5, 2001);

Memorandum from Steven A. Herman Memorandum from Steven A. Herman Assistant Administrator for Enforcement and Assistant Administrator for Enforcement and Compliance Assurance, to Regional Compliance Assurance, to Regional Administrators Region I- X (Sept. 20, 1999);Administrators Region I- X (Sept. 20, 1999);

ReferencesReferences

Memorandum from Kathleen M. Bennett, Memorandum from Kathleen M. Bennett, Assistant Administrator for Air Noise and Assistant Administrator for Air Noise and Radiation, Regional Administrators Radiation, Regional Administrators Regions I –X (September 28, 1982);Regions I –X (September 28, 1982);

Approval and Promulgation of State Approval and Promulgation of State Implementation Plans; Michigan 63 Fed. Implementation Plans; Michigan 63 Fed. Reg. 8573, 8575 (Feb. 20, 1998);Reg. 8573, 8575 (Feb. 20, 1998);

Sierra Club v. Georgia Power Co.Sierra Club v. Georgia Power Co. 443 443 F.3d 1346, (7F.3d 1346, (7thth Cir. March 30, 2006). Cir. March 30, 2006).

ReferencesReferences

In re Prairie State Generating Company, PSD In re Prairie State Generating Company, PSD Appeal Number 05-05, at 113-118 (EAB, Appeal Number 05-05, at 113-118 (EAB, August 24, 2006);August 24, 2006);

In re Tallmadge Generating Station, PSD In re Tallmadge Generating Station, PSD Appeal Number 02-12, at 28 (EAB, May 21, Appeal Number 02-12, at 28 (EAB, May 21, 2003); 2003);

In re Indeck-Niles Energy Center, PSD Appeal In re Indeck-Niles Energy Center, PSD Appeal Number 04-01, at 15-18 (EAB, Sept. 30, Number 04-01, at 15-18 (EAB, Sept. 30, 2004); 2004);

In re Rockgen Energy Center, 8 E.A.D. 536 In re Rockgen Energy Center, 8 E.A.D. 536 (EAB 1999). (EAB 1999).