Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 101.
GENERAL AIR QUALITY RULES
Subchapter F. EMISSIONS EVENTS AND SCHEDULED MAINTENANCE, STARTUP, AND SHUTDOWN ACTIVITIES
3.
OPERATIONAL REQUIREMENTS, DEMONSTRATIONS, AND ACTIONS TO REDUCE EXCESSIVE EMISSIONS
30 TAC §§101.221 - 101.223
The Texas Commission on Environmental Quality (agency or
commission) proposes amendments to Subchapter F,
Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities
, Division 3,
Operational Requirements, Demonstrations,
and Actions to Reduce Excessive Emissions
, §§101.221 - 101.223.
These amendments are being proposed as revisions to the Texas state implementation
plan (SIP) which will be submitted to the United States Environmental Protection
Agency (EPA).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Sections 101.221 - 101.223 were adopted by the commission on August 21,
2002 for the primary purpose of incorporating the statutory requirements of
House Bill 2912, §5.01 and §18.14, 77th Legislature, 2001, into
the commission's rules. Sections 101.221 - 101.223 were submitted to EPA on
September 3, 2002 as revisions to the Texas SIP. This rulemaking action is
required to obtain federal approval of the emissions events rules as part
of the Texas SIP and to satisfy the notice of deficiency for the Texas Title
V Operating Permits Program.
In addition to deleting repetitive language, this rulemaking would delete
the phrase "exempt from compliance with emissions limitations" in these three
sections. The term "exemption" has been used in the commission's rules regarding
excess emissions since 1979. In enforcement cases for exceedances of emissions
and opacity limits, the long-standing practice is to conduct case-by-case
reviews and to use enforcement discretion as appropriate, and beginning in
2000, by using specific criteria incorporated in these rules in §101.11.
Section 101.11 was subsequently repealed and the criteria were revised and
incorporated into §101.222 on August 21, 2002. The use of the criteria,
with the burden of proof on the owner or operator, effectively operated as
an affirmative defense in certain enforcement actions, rather than an exemption
from compliance. The proposed amendments are made to eliminate any confusion
as to whether there is an automatic exemption from compliance with emissions
and opacity limits. There is no automatic exemption from compliance with emissions
and opacity limits. This rulemaking action will not change current enforcement
practice regarding exceedances of emission and opacity limits, nor revise
any of the demonstration criteria in §101.222. Rather, it more precisely
codifies this enforcement policy so the rules can be approved as a revision
to the SIP.
In previous commission rulemakings, EPA expressed concern regarding the
use of the term "exemption" in these rules. Regardless of the use of the term
"exemption," the commission has never considered that applicable emissions
and opacity limits are automatically suspended during emissions events or
startup, shutdown, or maintenance activities; rather, the commission has historically
exercised discretion in the method of addressing those exceedances when the
regulated entity demonstrated it met the criteria for the event. The commission's
August 21, 2002 preamble adopting the most recent changes to these rules incorporated
the concepts of "excessive" and "chronic" emissions; it also explained the
historical enforcement practice and how satisfaction of the criteria operates
as an affirmative defense in certain enforcement actions, as follows. "The
commission will review all emissions events against the requirements of §101.222(a)
to determine if the emissions events are excessive, and therefore, not exempt.
Facilities with excessive emissions events must comply with the requirements
in §101.223 upon notification by the executive director. Any emissions
events which are not excessive, but do not satisfy all the criteria in §101.222(b)
are not exempt and may be subject to an enforcement action, including penalties
and appropriate requirements to minimize the recurrence of similar events
in the future. The commission's past experience has been that the exemption
criteria now located in §101.222(b) and (c) for emissions events and
scheduled maintenance, startup, and shutdown activities operate much like
an affirmative defense in enforcement actions." This adoption preamble, found
in the September 6, 2002 issue of the
Texas Register
(27 TexReg 8499 and 8524) also includes other information on the commission's
enforcement practices which will not change as a result of this rulemaking
action.
This rulemaking would specify that an owner or operator may claim an affirmative
defense when the state brings an enforcement action for certain events and
activities, but not when the state pursues administrative technical orders
and/or injunctive relief. This rulemaking also retains the requirement that
the burden of proof is on the owner or operator to prove it meets the demonstration
criteria in §101.222 when addressing exceedances of emissions or opacity
limits and claiming the affirmative defense. The affirmative defense is not
available to claims for failure to take action, record, or report emissions
or information about the events or activities as required by law.
The scope of this rulemaking is limited to changes made to obtain federal
approval of the emissions events rules as part of the Texas SIP, and which
more precisely state the applicability and use of an affirmative defense in
certain state enforcement actions. These changes are necessary for the commission
to obtain approval of these rules as a SIP revision. The proposed amendments
will not limit EPA's authority to take enforcement action. Determinations
made under §101.222 in which the owner or operator claims an affirmative
defense will not bar actions regarding exceedances of emissions limitations
by EPA or citizens under the Federal Clean Air Act.
SECTION BY SECTION DISCUSSION
The proposed revisions to §§101.221 - 101.223 would delete references
to an exemption from compliance and more precisely indicate that exceedances
of emissions and opacity limits are subject to an affirmative defense to claims
brought by the state for certain events and activities other than claims for
administrative technical orders and actions for injunctive relief if the owner
or operator proves the criteria listed in §101.222. The use of the term
"affirmative defense" is necessary to assure that the burden of proof remains
on the regulated entity, and that relief from enforcement is not automatic.
This is consistent with EPA's position regarding excess emissions and when
affirmative defenses apply, which upholds the fundamental requirements of
attainment and maintenance of the national ambient air quality standards and
any other requirement of the Federal Clean Air Act. This rulemaking action
will not change current enforcement practice which already incorporates the
concept of an affirmative defense for exceedances of emissions and opacity
limitations.
Administrative changes are proposed throughout the sections to conform
to
Texas Register
requirements.
Section 101.221 - Operational Requirements
The proposed amendment to §101.221(e) deletes the sentences "The executive
director or any air pollution program with jurisdiction may request documentation
of the criteria in §101.222 of this title at their discretion. Satisfying
the burden of proof is a condition to unauthorized emissions being considered
not excessive and exempt from compliance with authorized emission limitations
under §101.222 of this title." The change to §101.221(e) would delete
repetitive language within this subsection with regard to burden of proof,
and would ensure consistency with the change to the rule language proposed
in §101.222. As more fully explained in the BACKGROUND AND SUMMARY OF
THE FACTUAL BASIS FOR THE PROPOSED RULES section, this rulemaking action will
not change existing commission practice with regard to enforcement actions
regarding excess emissions, nor the requirement that the owner or operator
has the burden of proving all the criteria identified in §101.222.
Section 101.222 - Demonstrations
The proposed amendment to §101.222(a) would delete the sentence "Emissions
events determined to be excessive are not exempt from compliance with emission
limitations." This is necessary to eliminate any confusion as to whether some
emissions events or scheduled maintenance, startup, or shutdown activities
are entitled to an automatic exemption, and is consistent with the other changes
in §101.222.
The proposed amendments to §101.222(b) would revise the wording from
"Emissions events determined not to be excessive by the executive director.
. . are exempt from compliance with emissions limitations if the owner or
operator satisfies . . ." to "Emissions events determined not to be excessive
are subject to an affirmative defense to all claims in enforcement actions
brought by the state for these events other than claims for administrative
technical orders and actions for injunctive relief if the owner or operator
proves all of the following criteria are met. . .."
The proposed amendments to §101.222(c) would revise the wording from
"Emissions from any scheduled maintenance, startup, or shutdown activity are
exempt from compliance with emissions limitations if the owner or operator
satisfies . . ." to "Emissions from any scheduled maintenance, startup, or
shutdown activity subject to an affirmative defense to all claims in enforcement
actions brought by the state for these activities other than claims for administrative
technical orders and actions for injunctive relief if the owner or operator
proves all of the following criteria are met. . .."
The proposed amendments to §101.222(d) would revise the wording from
"Excess opacity events that are subject to §101.201(e) of this title,
and other opacity events where the owner or operator did not experience an
emissions event, are exempt from compliance with applicable opacity limitations
if the owner or operator satisfies. . ." to "Excess opacity events that are
subject to §101.201(e) of this title, and other opacity events where
the owner or operator did not experience an emissions event, are subject to
an affirmative defense to all claims in enforcement actions if brought by
the state for these events other than claims for administrative technical
orders and actions for injunctive relief if the owner or operator proves all
of the following criteria are met. . .."
The proposed amendments to §101.222(e) would revise the wording from
"Excess opacity events, or other opacity events where the owner or operator
did not experience an emissions event, that result from any scheduled maintenance,
startup, or shutdown activity are exempt from compliance with applicable opacity
limitations if the owner or operator satisfies. . ." to "Excess opacity events,
or other opacity events where the owner or operator did not experience an
emissions event, that result from any scheduled maintenance, startup, or shutdown
activity are subject an affirmative defense to all claims in enforcement actions
brought by the state for these events other than claims for administrative
technical orders and actions for injunctive relief if the owner or operator
proves all of the following criteria are met. . ." The proposed changes to §101.222(b)
- (e) delete the phrase "exempt from compliance" and more precisely state
when an affirmative defense may be claimed in enforcement actions brought
by the state. In addition, the word "was" is proposed to be changed to the
word "were" in §101.222(e)(8) to show correct subject-verb number agreement.
New subsection (f) is proposed that would not allow the affirmative defenses
in subsections (b) - (e) to apply to claims in enforcement actions for failure
to take action, record, or report emissions or information required by law.
For example, the affirmative defense would not apply in state enforcement
actions regarding failure to report as required by §101.201 and §101.211
(relating to Emissions Event Reporting and Recordkeeping Requirements and
Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements).
Similarly, the affirmative defense would not apply in state enforcement actions
regarding failure to comply with 30 TAC §122.145 (relating to Reporting
Terms and Conditions), commonly referred to as "deviation reporting requirements"
under the Title V Operating Permits Program. The affirmative defense would
also not apply in the case where a company is required to maintain controls
but fails to do so, such as the requirement found in 30 TAC §115.142
(relating to Control Requirements for Industrial Wastewater Systems) which
requires that all components shall be fully covered or be equipped with water
seal controls, or with new source review permit provisions that may require
special handling of gasses during events or activities subject to Subchapter
F requirements.
Existing §101.222(f) is relettered as §101.222(g) and would delete
the wording "When the commission finds a frequent or recurring pattern of
events under this subchapter, the commission may pursue penalties and corrective
actions from an owner or operator of a facility for unauthorized emissions
notwithstanding the exemptions described. . ." and add the sentence "Evidence
from past events subject to subsections (b) - (e) of this section is admissible
and relevant to demonstrate a frequent or recurring pattern of events, even
if the affirmative defense is sustained. This amendment would ensure consistency
with the changes to the rule language proposed in §101.222(b) - (e).
As more fully explained in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS
FOR THE PROPOSED RULES section, the proposed amendments to §101.222 will
not change existing commission practice with regard to enforcement actions
regarding exceedances of emissions and opacity limits.
Section 101.223 - Actions to Reduce Excessive
Emissions
The proposed amendment to §101.223(c) would revise the wording from
". . . the unauthorized emissions from the event are not exempt from compliance
with emission limitations" to ". . . the affirmative defenses in §101.222
of this title do not apply." This amendment would ensure consistency with
the change to the rule language proposed in §101.222. In addition, as
more fully explained in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR
THE PROPOSED RULES section, this amendment will not change existing commission
practice with regard to enforcement actions for excessive emissions.
FISCAL NOTE: COST TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed amendments
are in effect, there will be no fiscal implications for units of state and
local governments due to implementation of the proposed amendments.
The proposed amendments are intended to obtain approval as a revision to
the SIP by eliminating any confusion as to whether there is an automatic exemption
from compliance and more precisely stating that an affirmative defense is
available for certain enforcement cases regarding exceedances of emissions
and opacity limits. The proposed amendments do not implement additional regulations
that are not already required by the commission and the EPA.
PUBLIC BENEFIT AND COSTS
Mr. Davis has also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated from
enforcement of and compliance with the proposed amendments would be to eliminate
any confusion as to whether there is an automatic exemption from compliance
and more precisely stating that an affirmative defense is available for certain
enforcement cases regarding exceedances of emissions and opacity limits. The
proposed amendments do not implement additional regulations that are not already
required by the commission and the EPA. The commission anticipates the proposed
amendments will not result in fiscal implications for individuals and businesses.
SMALL AND MICRO-BUSINESS ASSESSMENT
There will not be adverse fiscal implications for small and micro-businesses
due to implementation of the proposed amendments, which are intended to eliminate
any confusion as to whether there is an automatic exemption from compliance
and more precisely state that an affirmative defense is available for certain
enforcement cases regarding exceedances of emissions and opacity limits. The
proposed amendments do not implement additional regulations that are not already
required by the commission and the EPA. The commission anticipates the proposed
amendments will not result in fiscal implications for small and micro-businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required, because the proposed
rulemaking action does not adversely affect a local economy in a material
way for the first five years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225 and
has determined that the proposed rulemaking does not meet the definition of
a "major environmental rule." Furthermore, it does not meet any of the four
applicability requirements listed in §2001.0225(a). A "major environmental
rule" means a rule, the specific intent of which, is to protect the environment
or reduce risks to human health from environmental exposure, and that may
adversely affect in a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state. The proposed amendments are intended to obtain
approval as a revision to the SIP by eliminating any confusion as to whether
there is an automatic exemption from compliance and more precisely stating
that an affirmative defense is available for certain enforcement cases regarding
exceedances of emissions and opacity limits. The proposed amendments do not
implement additional regulations that are not already required by the commission
and the EPA. This rulemaking also retains the requirement that the burden
of proof is on the owner or operator to prove it meets the demonstration criteria
in §101.222 when addressing exceedances of emissions or opacity limits.
The proposed amendments do not limit the commission's existing authority to
enforce when an owner or operator fails to take action, record, or report
emissions or information about the events or activities, and makes clear that
the affirmative defenses are limited to certain events and activities. The
proposed amendments will not adversely affect, in a material way, the economy,
a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state.
In addition, Texas Government Code, §2001.0225, only applies to a
major environmental rule, the result of which is to: 1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
The proposed amendments do not exceed a standard set by federal law or exceed
an express requirement of state law. There is no contract or delegation agreement
that covers the topic that is the subject of this rulemaking. Finally, this
rulemaking was not developed solely under the general powers of the agency,
but is authorized by specific sections of the Texas Health and Safety Code
and Texas Water Code which are cited in the STATUTORY AUTHORITY section of
this preamble. Therefore, this rulemaking is not subject to the regulatory
analysis provisions of Texas Government Code, §2001.0225(b), because
the proposed amendments do not meet any of the four applicability requirements.
The commission invites public comment regarding the draft regulatory impact
analysis determination during the public comment period.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the proposed amendments.
The specific purpose of this rulemaking is to amend the emissions events rules
to obtain federal approval of the emissions events rules as part of the Texas
SIP by eliminating any confusion as to whether there is an automatic exemption
from compliance and more precisely stating that an affirmative defense is
available for certain enforcement cases regarding exceedances of emissions
and opacity limits. Promulgation and enforcement of the proposed amendments
would be neither a statutory nor a constitutional taking because they do not
affect private real property. Specifically, the proposed amendments do not
affect private property in a manner which restricts or limits an owner's right
to the property that would otherwise exist in the absence of a governmental
action. Therefore, the proposed amendments do not constitute a takings under
Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq
.), and the
commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Coastal Management Program, commission
rules governing air pollutant emissions must be consistent with the applicable
goals and policies of the CMP. The commission reviewed this action for consistency
with the CMP goals and policies in accordance with the rules of the Coastal
Coordination Council, and determined that the action is consistent with the
applicable CMP goals and policies. The CMP goal applicable to this rulemaking
action is the goal to protect, preserve, and enhance the diversity, quality,
quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)).
No new sources of air contaminants will be authorized and the proposed revisions
will maintain the same level of emissions control as the existing rules. The
CMP policy applicable to this rulemaking action is the policy that commission
rules comply with federal regulations in 40 Code of Federal Regulations, to
protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 Code of Federal Regulations 51, Requirements
for Preparation, Adoption, and Submittal of Implementation Plans. Therefore,
in accordance with 31 TAC §505.22(e), the commission affirms that this
rulemaking action is consistent with CMP goals and policies.
The commission solicits comments on the consistency of the proposed rulemaking
with the CMP during the public comment period.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Sections 101.221 - 101.223 are applicable requirements under 30 TAC Chapter
122,
Federal Operating Permits
. Upon the effective
date of this rulemaking, owners or operators subject to the Federal Operating
Permit Program will be required to certify compliance with amended §§101-221
- 101.223.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Austin, Texas, on August
12, 2003, at 10:00 a.m., at the Texas Commission on Environmental Quality,
12100 Park 35 Circle, Building F, Room 2210. The hearing will be structured
for the receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration. There
will be no open discussion during the hearing; however, a commission staff
member will be available to discuss the proposal 30 minutes prior to each
hearing and will answer questions before and after each hearing.
The hearing will be structured for the receipt of oral or written comments
by interested persons. Individuals may present oral statements when called
upon in order of registration. There will be no open discussion during the
hearing; however, a commission staff member will be available to discuss the
proposal 30 minutes prior to each hearing and will answer questions before
and after each hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend a hearing should contact the Office of Environmental
Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made
as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, MC 205, Office of Environmental
Policy, Analysis, and Assessment, Texas Commission on Environmental Quality,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Log Number 2003-038-101-AI. Comments must be
received by 5:00 p.m., August 25, 2003. For further information, please contact
Brad Toups of the Field Operations Division at (512) 239-1872 or Alan Henderson
of the Policy and Regulations Division at (512) 239-1510.
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code; and under Texas Health and Safety Code, §382.017, concerning
Rules, which authorizes the commission to adopt rules consistent with the
policy and purposes of the Texas Clean Air Act. The amendments are also proposed
under Texas Health and Safety Code, §382.002, concerning Policy and Purpose,
which establishes the commission purpose to safeguard the state air resources,
consistent with the protection of public health, general welfare, and physical
property; §382.011, concerning General Powers and Duties, which authorizes
the commission to control the quality of the state air; §382.012, concerning
State Air Control Plan, which authorizes the commission to prepare and develop
a general, comprehensive plan for the control of the state air; §382.085,
concerning Unauthorized Emissions Prohibited, which prohibits emissions except
as authorized by commission rule or order; §382.0215, concerning Assessment
of Emissions Due to Emissions Events, which authorizes the commission to collect
and assess unauthorized emissions data due to emissions events; and §382.0216,
concerning Regulation of Emissions Events, which authorizes the commission
to establish criteria for determining when emissions events are excessive
and to require facilities to take action to reduce emissions from excessive
emissions events.
The proposed amendments implement Texas Health and Safety Code, §§382.002,
382.011, 382.012, 382.085, 382.215, and 382.216; and House Bill 2912, §5.01
and §18.14, 77th Legislature, 2001.
§101.221.Operational Requirements.
(a) - (d)
(No change.)
(e)
The owner or operator of a facility has the burden of proof
to demonstrate that the criteria identified in §101.222(a) and (b) of
this title (relating to Demonstrations) for emissions events, or in §101.222(c)
of this title for scheduled maintenance, startup, or shutdown activities are
satisfied for each occurrence of unauthorized emissions. The owner or operator
of a facility has the burden of proof to demonstrate that the criteria identified
in §101.222(d) of this title for excess opacity events, or in §101.222(e)
of this title
for excess opacity events resulting from scheduled maintenance,
startup, or shutdown activities are satisfied for each excess opacity event.
[
(f)
(No change.)
§101.222.Demonstrations.
(a)
Excessive emissions event determinations. The executive
director shall determine when emissions events are excessive. [
(1) - (6)
(No change.)
(b)
Non-excessive emissions events. Emissions events determined
not to be excessive [
(1) - (11)
(No change.)
(c)
Scheduled maintenance, startup, or shutdown activity. Emissions
from any scheduled maintenance, startup, or shutdown activity are
subject
to an affirmative defense to all claims in enforcement actions brought by
the state for these activities, other than claims for administrative technical
orders and actions for injunctive relief,
[
(1) - (9)
(No change.)
(d)
Excess opacity events. Excess opacity events that are subject
to §101.201(e) of this title, and other opacity events where the owner
or operator did not experience an emissions event, are
subject to an
affirmative defense to all claims in enforcement actions brought by the state
for these events, other than claims for administrative technical orders and
actions for injunctive relief,
[
(1) - (6)
(No change.)
(7)
the owner or operator actions in response to the opacity
event were documented by contemporaneous operation logs or other relevant
evidence; [
(8) - (9)
(No change.)
(e)
Opacity events resulting from scheduled maintenance, startup,
or shutdown activity. Excess opacity events, or other opacity events where
the owner or operator did not experience an emissions event, that result from
any scheduled maintenance, startup, or shutdown activity are
subject
to an affirmative defense to all claims in enforcement actions brought by
the state for these events, other than claims for administrative technical
orders and actions for injunctive relief
[
(1) - (7)
(No change.)
(8)
the owner or operator actions during the opacity event
were
[
(9)
(No change.)
(f)
The affirmative defenses to
claims in enforcement actions referenced in subsections (b) - (e) do not apply
to claims for failure to take action, record, or report emissions or information
about the events or activities as required by law.
(g)
[
§101.223.Actions to Reduce Excessive Emissions.
(a) - (b)
(No change.)
(c)
If an emissions event recurs because an owner or operator
fails to take corrective action as required and in the time frames specified
by a CAP approved by the commission, the emissions event is considered excessive
and the
affirmative defenses in §101.222 of this title (relating
to Demonstrations) do not apply
[
(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 11, 2003.
TRD-200304201
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: August 24, 2003
For further information, please call: (512) 239-4712
Subchapter C. VEHICLE INSPECTION AND MAINTENANCE AND LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM
The executive director or any air pollution program with jurisdiction
may request documentation of the criteria in §101.222 of this title at
their discretion. Satisfying the burden of proof is a condition to unauthorized
emissions being considered not excessive and exempt from compliance with authorized
emission limitations under §101.222 of this title.
]
Emissions
events determined to be excessive are not exempt from compliance with emission
limitations.
] To determine whether an emissions event or emissions events
are excessive, the executive director will evaluate emissions events using
the following criteria:
by the executive director after applying the criteria
in subsection (a) of this section
] are
subject to an affirmative
defense to all claims in enforcement actions brought by the state for these
events, other than claims for administrative technical orders and actions
for injunctive relief,
[
are exempt from compliance with emission
limitations
] if the owner or operator
proves
[
satisfies
] all of the following criteria
are met
:
exempt from compliance
with emission limitations,
] if the owner or operator
proves
[
satisfies
] all of the following criteria
are met
:
exempt from compliance with applicable
opacity limitations
] if the owner or operator
proves
[
satisfies
] all of the following criteria
are met
:
and
]
exempt from compliance
with applicable opacity limitations
] if the owner or operator
proves
[
satisfies
] all of the following criteria
are
met
:
was
] documented by contemporaneous operating logs or
other relevant evidence; and
(f)
] Frequent or recurring pattern.
Evidence from past events subject to subsections (b) - (e) of this section
is admissible and relevant to demonstrate a frequent or recurring pattern
of events, even if the affirmative defense is sustained.
[
When
the commission finds a frequent or recurring pattern of events under this
subchapter, the commission may pursue penalties and corrective actions from
an owner or operator of a facility for unauthorized emissions notwithstanding
the exemptions described in subsections (b) - (e) of this section.
]
unauthorized emissions from the
event are not exempt from compliance with emission limitations
].
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES