Approval and Promulgation of State Implementation Plan; Michigan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI58-01-7266; FRL-5711-2]

Approval and Promulgation of State Implementation Plan; Michigan

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: On May 16, 1996, the Michigan Department of Environmental

Quality (MDEQ) submitted a revision to the State's New Source Review

State Implementation Plan. As part of this submittal, the State

included start-up, shutdown and malfunction rules: R 336.1912 Abnormal

conditions, start-up, shutdown, and malfunction of a source, process,

or process equipment, operating, notification, and reporting

requirements; R 336.1913 Malfunction protection, applicability,

prohibitions, conditions, and standards; and R 336.1914 Start-up and

shutdown protection; applicability, prohibitions, conditions and

standards. The Environmental Protection Agency (EPA) is proposing to

disapprove these start-up, shutdown and malfunction regulations because

they are not consistent with the Clean Air Act and applicable EPA

policy.

DATES: Comments on this proposed rule must be received on or before

April 21, 1997.

ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,

Regulation Development Section, Air Programs Branch (AR-18J), U.S.

Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois 60604.

Copies of the proposed SIP revision and EPA's analysis are

available for inspection at the U.S. Environmental Protection Agency,

Region 5, Air and Radiation Division, 77 West Jackson Boulevard,

Chicago, Illinois 60604. (Please telephone Kathleen D'Agostino at (312)

886-1767 before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental

Engineer, Regulation Development Section, Air Programs Branch (AR-18J),

U.S. Environmental Protection Agency, Region 5, Chicago, Illinois

60604, (312) 886-1767.

SUPPLEMENTARY INFORMATION:

I. State Submittal

On May 16, 1996, the Michigan Department of Environmental Quality

(MDEQ) submitted a revision to the State's New Source Review State

Implementation Plan. As part of this submittal, the State included

start-up, shutdown and malfunction rules: R 336.1912 Abnormal

conditions, start-up, shutdown, and malfunction of a source, process,

or process equipment, operating, notification, and reporting

requirements; R 336.1913 Malfunction protection, applicability,

prohibitions, conditions, and standards; and R 336.1914 Start up and

shutdown protection; applicability, prohibitions, conditions and

standards.1

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\1\ While the start-up, shutdown and malfunction regulations

were submitted along with the State's New Source Review SIP, they

are contained in ``Part 9: Emission Limitations and Prohibitions--

Miscellaneous'' of Michigan's air pollution control rules; as such,

they apply to all sources, not only those which are required to have

a permit.

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Rule 912 requires that a source's owner or operator operate that

source in a manner consistent with good air pollution control practices

for minimizing emissions during periods of abnormal conditions, start-

up, shutdown, and malfunctions (SSM). The rule also contains notice and

reporting requirements in the event of start-up, shutdown or

malfunction. Rules 913 and 914 require that the notice and reporting

requirements in Rule 912 be met in order for a source to be eligible

for the affirmative defense provided in Rules 913 and 914.

Rule 913(2) states ``The emission of an air contaminant in excess

of an emission standard * * * or an emission limitation * * * or a

violation of a continuous emission or parametric monitoring or

automated recordkeeping requirement is prohibited, unless caused by the

circumstances of a malfunction of a source, process, or process

equipment, and the owner or operator complies with all of the

applicable requirements of this rule.''

Rule 914(2) states ``The emission of an air contaminant in excess

of an emission standard * * * or an emission limitation * * * or a

violation of a continuous emission or parametric monitoring or

automated recordkeeping requirement is prohibited, unless caused by the

circumstances of a start-up or shutdown of a source, process, or

process equipment, and the owner or operator complies with all of the

applicable requirements of this rule.''

Both Rules 913 and 914 then provide that if the State determines

that the owner or operator violated an emission

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standard or limitation, or monitoring or recordkeeping requirement, and

the owner or operator did not meet the requirements of the SSM

regulations, then the State may take appropriate enforcement action. In

such an enforcement action, the Michigan Department of Natural

Resources (now the MDEQ) must provide reasonable notice of the facts

constituting the alleged violation and noncompliance with the rule,

while the owner or operator seeking SSM protection has the burden of

proof. These provisions establish an affirmative defense for certain

violations that occur during periods of SSM.

II. Comparison of State Rules to Federal Requirements

Michigan's SSM regulations contain provisions similar to certain

operating requirements found in 40 CFR part 63 (general provisions for

National Emission Standards for Hazardous Air Pollutants, section 112),

40 CFR part 60 (general provisions for New Source Performance

Standards, section 111), and the United States Environmental Protection

Agency's (EPA) SIP policy regarding treatment of SSM. See EPA's policy

memorandum dated September 28, 1982 from Kathleen M. Bennett, Assistant

Administrator for Air, Noise, and Radiation, entitled ``Policy on

Excess Emissions During Startup, Shutdown, Maintenance, and

Malfunctions''. Also see EPA's clarification to the above policy

memorandum dated February 15, 1983 from Kathleen M. Bennett, Assistant

Administrator for Air, Noise, and Radiation, and EPA's final rule for

Utah's sulfur dioxide control strategy (Kennecott Copper), 42 FR 21472

(April 27, 1977). However, Michigan's broad SSM regulations do not meet

the requirements of the Act because the Act, as interpreted by the

applicable EPA policy memoranda, does not allow for automatic

exemptions or establish an affirmative defense from violations caused

by SSM conditions.

Sections 913(2) and 914(2) establish an affirmative defense by

providing an exemption for sources that violate an emission standard,

emission limitation, continuous emission or parametric monitoring, or

automated recordkeeping requirement if the violation is the result of

SSM and the source complies with the applicable requirements of the

rules. The Act and EPA policy prohibit approval of malfunction rules

which provide such exemptions. See the EPA policy memoranda referenced

above.

Under section 110, the EPA can approve malfunction rules which rely

on the ``enforcement discretion'' approach. In such an approach, the

malfunction rules would establish criteria to be considered by the

regulator in determining whether an enforcement action--or the exercise

of discretion--is appropriate. These criteria have generally included

the following:

1. To the maximum extent practicable, air pollution control

equipment, process equipment, and processes were maintained and

operated in a manner consistent with good practice for minimizing

emissions;

2. Repairs were made in an expeditious fashion when the operator

knew or should have known that applicable emission limitations were

being exceeded. Off-shift labor and overtime must have been

utilized, to the extent practicable, to ensure that such repairs

were made as expeditiously as practicable;

3. The amount and duration of excess emissions (including any

bypass) were minimized to the maximum extent practicable during

periods of such emissions;

4. All possible steps were taken to minimize the impact of the

excess emissions on ambient air quality; and

5. The excess emissions are not part of a recurring pattern

indicative of inadequate design, operation, or maintenance.

See the EPA policy memoranda referenced above.

There may be various ways in which to structure such an enforcement

discretion approach, and EPA will not attempt to provide detailed

guidance here. However, EPA notes that certain issues would have to be

addressed by the State if it were to craft such an approach using the

current State rule as a starting point. Among these, the definition of

``malfunction'' in R 336.1113(d) does not limit malfunctions to

failures that are ``infrequent'' and ``not reasonably preventable'',

and is therefore too broad. See, e.g., 40 CFR 60.2 and 63.2. The

State's air pollution control bypass provisions in R 336.1913(3)(b) and

R 336.1914(4)(b) are also broader than that permitted by the Act. See

the EPA policy memoranda referenced above. The alternate emission

limitations for startups and shutdowns in R 336.1914(4)(d) could

(impermissibly) allow relaxations of Act requirements, including NSR

limitations, New Source Performance Standards, toxics requirements

(NESHAP, MACT), etc. Finally, the State SSM regulations provide no

authority for MDEQ to review and require revisions to a source's

written emission minimization plan for normal or usual startups and

shutdowns. Such authority is appropriate to ensure that operating

practices for startups and shutdowns meet good engineering practice for

minimizing emissions, similar to the authority R 336.1911 currently

provides for State review and revision of written preventative

maintenance and malfunction abatement plans.

III. Effect of State Provisions on Federal Enforcement

It should be noted that EPA does not recognize the Michigan SSM

regulations as affecting EPA's enforcement capabilities under the Act,

and reserves the right to pursue enforcement of applicable requirements

notwithstanding the existence of the State's SSM regulations.

Similarly, the Michigan rules do not affect citizen suit rights under

section 304 of the Act. The EPA will continue to pursue enforcement

actions in accordance with its policies on enforcement discretion and

any SSM provisions found in applicable Federal regulations.

IV. Proposed Rulemaking Action

To determine the approvability of a rule, EPA must evaluate the

rule for consistency with the requirements of section 110 and part D of

the Act. In addition, EPA has reviewed the Wisconsin rule in accordance

with EPA policy guidance documents, including: EPA's policy memorandum

dated September 28, 1982 from Kathleen M. Bennett, Assistant

Administrator for Air, Noise, and Radiation, entitled ``Policy on

Excess Emissions During Startup, Shutdown, Maintenance, and

Malfunctions''; the clarification to the above policy memorandum dated

February 15, 1983 from Kathleen M. Bennett, Assistant Administrator for

Air, Noise, and Radiation; and EPA's final rule for Utah's sulfur

dioxide control strategy (Kennecott Copper), 42 FR 21472 (April 27,

1977). Upon completing this review the EPA is proposing to disapprove

Michigan's SIP revision request because it is inconsistent with the Act

and the applicable policy set forth in these documents.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal

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Register on January 19, 1989 (54 FR 2214-2225), as revised by a July

10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air

and Radiation. The Office of Management and Budget (OMB) has exempted

this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C.603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

EPA's disapproval of the State request under Section 110 and

subchapter I, part D of the CAA does not affect any existing

requirements applicable to small entities. Any pre-existing federal

requirements remain in place after this disapproval. Federal

disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(''Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must undertake various actions in association with any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. This Federal action

approves pre-existing requirements under state or local law, and

imposes no new requirements. Accordingly, no additional costs to state,

local, or tribal governments, or the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental

relations, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated: March 5, 1997.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 97-7100 Filed 3-19-97; 8:45 am]

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