Section 173-400-109. Unavoidable excess emissions.

This section takes effect on the effective date of EPA's incorporation of the entirety of WAC 173-400-108 and 173-400-109 into the Washington state implementation plan as replacement for WAC 173-400-107.

(1) Excess emissions determined to be unavoidable under the procedures and criteria in this section are violations of the applicable statute, regulation, permit, or regulatory order. Unavoidable excess emissions are subject to injunctive relief but not penalty. The decision that excess emissions are unavoidable is made by the permitting authority, however, in a federal enforcement action filed under 42 U.S.C. § 7413 or 7604 the decision-making authority shall determine what weight, if any, to assign to the permitting authority's determination that an excess emissions event does or does not qualify as unavoidable under the criteria in subsections (3), (4), and (5) of this section.

(2)(a) The owner or operator of a source shall have the burden of proving to the permitting authority or the decision-making authority in an enforcement action that excess emissions were unavoidable. This demonstration shall be a condition to obtaining relief under subsections (3), (4) and (5) of this section.

(b) Excess emissions that cause a monitored exceedance of any relevant ambient air quality standard do not qualify for relief under this section.

(c) This section does not apply to exceedances of emission standards promulgated under 40 C.F.R. Parts 60, 61, 62, 63, 72, or a permitting authority's adoption by reference of such federal standards.

(d) This section does not apply to exceedance of emission limits and standards contained in a PSD permit issued solely by EPA.

(3) Excess emissions due to startup or shutdown conditions will be considered unavoidable provided the source reports as required by WAC 173-400-108 and adequately demonstrates that:

(a) Excess emissions could not have been prevented through careful planning and design;

(b) Startup or shutdown was done as expeditiously as practicable;

(c) All emission monitoring systems were kept in operation unless their shutdown was necessary to prevent loss of life, personal injury, or severe property damage;

(d) The emissions were minimized consistent with safety and good air pollution control practice during the startup and shutdown period;

(e) If a bypass of control equipment occurs, that such bypass is necessary to prevent loss of life, personal injury, or severe property damage; and

(f) Excess emissions that occur due to upsets or malfunctions during routine startup or shutdown are treated as upsets or malfunctions under subsection (5) of this section.

(4) Maintenance. Excess emissions during scheduled maintenance may be considered unavoidable if the source reports as required by WAC 173-400-108 and adequately demonstrates that the excess emissions could not have been avoided through reasonable design, better scheduling for maintenance or through better operation and maintenance practices.

(5) Excess emissions due to upsets or equipment malfunctions will be considered unavoidable provided the source reports as required by WAC 173-400-108 and adequately demonstrates that:

(a) The event was not caused by poor or inadequate design, operation, maintenance, or any other reasonably preventable condition;

(b) The event was not of a recurring pattern indicative of inadequate design, operation, or maintenance;

(c) The operator took immediate and appropriate corrective action in a manner consistent with safety and good air pollution control practice for minimizing emissions during the event, taking into account the total emissions impact of the corrective action, including slowing or shutting down the emission unit as necessary to minimize emissions, when the operator knew or should have known that an emission standard or permit condition was being exceeded; and

(d) All emission monitoring systems and pollution control systems were kept operating to the extent possible unless their shutdown was necessary to prevent loss of life, personal injury, or severe property damage.

(e) The amount and duration of the excess emissions (including any bypass) were minimized to the maximum extent possible.

[Statutory Authority: Chapter 70.94 RCW. WSR 11-06-060 (Order 09-01), § 173-400-109, filed 3/1/11, effective 4/1/11.]

Chapter 70.94 RCW. WSR 11-06-060 (Order 09-01), § 173-400-109, filed 3/1/11, effective 4/1/11.

Rules

173-400-108,173-400-107,173-400-108,173-400-108,173-400-108,