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Unavoidable Breakdown Rule
The Utah Division of Air Quality (DAQ) and the U.S. Environmental Protection Agency (EPA) are currently in negotiations to address concerns about Utah's rule for unavoidable breakdowns. As part of these negotiations, EPA published a notice in the Federal Register that it intends to take action against the State if the rule is not withdrawn or revised. EPA's announcement was prompted by a lawsuit filed against the agency by the WildEarth Guardians on a variety of Clean Air Act issues nationwide.
Utah's unavoidable breakdown rule has been in place for over 30 years. Unavoidable breakdowns are defined as sudden, unforeseeable malfunctions in equipment that lead to an excess of emissions. The rule is not unique to Utah and is common in many states.
The conflict between states and the EPA arises because EPA wants breakdowns to be automatic violations. The states counter that there are conditions where an industry with a compliance history should not be penalized with a violation for upsets caused by circumstances (or events) beyond their control, such as a power outage, which then causes pollution control equipment to shut down. Depending on circumstances, states would have the discretion to levy fines.
The rule is not intended to be a blanket defense for negligence. Industry is required to report, in writing, any incident lasting more than two hours, explaining the nature of the event, the estimated amount of pollution released, and the steps taken to prevent a reoccurrence. DAQ compliance staff carefully review the information and consider recent inspection results to determine if the information is credible. If it is not, a violation is issued.
Since 2007, there have been 25 instances (or events) in Utah which the State has agreed were unavoidable breakdowns:
- 2007: 11
- 2008: 2
- 2009: 9
- 2010: 3
The current rule has been approved by EPA multiple times and is currently in effect in our federally approved State Implementation Plan (SIP). A SIP is a tool that states use to demonstrate to EPA how they will meet federal air quality standards.
EPA's Federal Register notice gives Utah 18 months, from May 18, 2011, to change its SIP by withdrawing or revising the rule or the EPA will begin a two year program to develop a Federal Implementation Plan to bring the unavoidable breakdown issue into compliance with the Clean Air Act.
During this time, two sanctions can be enacted to compel DAQ to comply. These sanctions include restricting highway funding and requiring a 2-to-1 emission offset requirement for all new and modified major sources subject to the nonattainment new source review program. These are burdensome to the State because they prevent building and enhancing of necessary highway infrastructure and because they place an undue burden on businesses in need of permits.
Utah's Current Rule
The underlying rule outlines the procedures that must be taken during an unavoidable breakdown. The rule requires that an unavoidable breakdown designation by approved by the Executive Secretary of the Air Quality Board. The criteria for acceptance include:
- The owner or operator must assure that emission limitations and visible emission limitations are exceeded for as short a period of time as is reasonable.
- All reasonable measures including (but are not limited to) the immediate reduction of operations, production, or activities must be taken to limit the total 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.
- A source subject to a SIP emission limitation cannot have exceeded those emission limitations.
- If production, operations or activities cannot be stopped without jeopardizing equipment or safety, or measures taken would result in even greater excess emissions, the owner or operator of the source is required to use "the most rapid, reasonable procedure" to reduce emissions.
- Initial and follow-up reporting is required. This information is used by the Executive Secretary in determining whether a violation has occurred and/or the need of further enforcement action.
- Breakdowns caused entirely or in part by poor maintenance, careless operation, or any other preventable upset condition or preventable equipment breakdown cannot be considered.
According to the Federal Register notice, unavoidable breakdowns themselves are not the problem. The concern is how these incidents are addressed in Utah's rule. EPA is issuing a call requiring a change in Utah's rule that is incorporated into the SIP.
EPA states that Utah's current rule does not "broadly exempt" breakdown emissions, but requires the source to justify the circumstances of the breakdown to allow the Executive Secretary to determine if it is unavoidable.
EPA specifically listed the following three concerns:
- Utah's Unavoidable Breakdown Rule does not treat all exceedances of SIP and permit limits as violations;
- the Rule could be interpreted to grant the Executive Secretary exclusive authority to decide whether excess emissions constitute a violation; and,
- the Rule improperly applies to federal technology-based standards such as New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air pollutants (NESHAPS).
EPA's main issue is that if a source follows the provisions of the Utah rule and the Executive Secretary finds that the incident was unavoidable, the resulting emissions would not be considered violations and EPA believes that this provision may prohibit legal action by EPA or citizens.
Without citing any circumstances where this has been an issue in the past, EPA claims that these provisions interfere with the State's ability to protect against violations of National Ambient Air Quality Standards.
What Happens Next
Utah has 18 months to address the issues raised by EPA. The process to be followed to address those issues will involve clean air advocates, local industry, EPA and interested stakeholders. However the State addresses EPA's issues, it will not result in actual emissions reductions from industrial sources; it will only change the administrative process for addressing periods of unavoidable breakdowns to bring Utah into compliance with EPA's requirements and avoid sanctions.
Contact Joel Karmazyn (801) 536-4423 in the Division of Air Quality.