### HeinOnline --- 42 Federal Register No. 81 page 21472 (1977) 

### 21472
preamble to EPA's replacement regula- tion which is being promulgated in another section ofthisFEDERALREGISTER.

EPA's authority 

### to disapprove the reg- ulation was questioned by the:state and Kennecott. However, EPA's position that constant control technology must be utilized 

### to achieve the NAAQS and that
a supplementary control system <SCS) may be credited as an interim control
measure 9nly after the application of RACT is supported by the weight of judicial authority. See, e.g.; Big Rivers Electric Corporation, et al. v. EPA, et al., 523 F. 2d 16 (6th Cir., 1975) and Kennecott Copper Corporation v. Train, 526 F. 2d 1149 <9th Cir., 1975>

.1 ItisEPA's posi- tion that the state regulation does**n~t** require insta'ilation of RACT. In addition ,.recently obtained air monitoring data indicate that even after RACT is installed by the company, the NAAQS will not be met in the vicinity of the Kennecott plant. Therefore, in the near future EPA will propose, as an interim measure, an 

### scs system for thesmelter. The Agency is also promulgating a malfunction regulation, which will·take into consideration the problem of malfunction and yet not render the emission limitation unenforceable.

Kennecott Copper Corporation also commented that, because of their brevity, theEPA noticeproposing disapproval of the state regulation and the suppor- tive documentation did not comply with the Administrative Procedure Act. It is the Agency's position thatthenoticeand and the supporting documents complied with the requirements of the Administrative Procedure Act, inasmuch as they adequately described the subject and the issues of**th~** proposed action, enabling the public 

### to understand and meaning- fully comment.

Since no persuasive technical or legal evidencehas beenpresentedinsupportof this regulation, theAdministrator is disapproving Section 2.5 as proposed. The 

## so. regulation for Kennecott, promul- gated by EPA on November 26, 1975, the malfunction regulation being promul- gatedbyEPA, andthe 

### scsregulation to be proposed, will provide for the attain-- ment of the NAAQS for 

## so. until such time as the state adopts and submits an approvable 

## so. regulation 

### toEPA.

Insofar as the provisions approved herein have existed as State law for a substantial period of time and, as a result, do not impose any additional burdens on sources subject 

### to such provi- sions, no useful purpose would be served in deferring the effective date of this action for 30 days. Accordingly, good

cause is found for instituting this rulemaking effective immediately. ADDRESSES: Copies of the public comments an.d EPA's detailed analysis of the comments are available for public inspection at the EPA offices listed below:
Environmental Protection Agency, Region

VIII, Air and Hazardous Materials Division, Suite Ooo, 1860 Lincoln Street, Denver, Colo. 80205.

1 But see Kennecott Copper Corporation v. Train, 9 ERC 1593 (D.C. Nev. 1976) • RULES AND REGULATIONS

Environmental Protection Agency, Public

Information Reference Unit, Room 2922, 401 M Street sw., Washington, D.C. 20460. Environmental Protection Agency, Room

4223, Federal BuUdlng, 126 South State BuUdlng, SaltLake City, Utah 84111. (42 U.S.C.1857c-5.)

Dated: March 30, 1977. BARBARA BLUM, ActingAcW!.inistrator. Part 52 of Chapter I, Title 40 of the Code of Federal Regulations is amended

as follows: SubpartTT-Utah 1. In § 52.2320, paragraph Cc> is amended to read as follows: · § 52.2320 Identificationofplan. 

### • * 

### * 

## • • <c> The plan revisions listed below
were submitted on the dates specified:



# . - 

# . • • 

## • <5> The Revised Utah Air Conservation Regulations on July 10, 1975, by the Governor.

2. In § 52.2325, paragraph Ca> is amended to'read as follows: § 52.2325 Control strategy: Sulfur oxides.

<a> • • • Furthermore, section 2.5 of the Utah Air Conservation Regulations isdisapprovedbecause itdocs notprovide for attainment of the short-term ambient standards for**so~.** is unenforceable, and allows the utilization of a sup- plementary control system without requiring the application of reasonably available control technology.

(FR Doc.77-12000 Flled 4-26-77;8:45 em]

[FRL 704-7]
PART 52-APPROVAL AND PROMULGA· TION OF IMPLEMENTATION PLANS. Utah 

## so. Control Strategy AGENCY: U.S. Environmental Protection Agency. ACTION: Finalrule. SUMMARY: The purpose of this rulemaking is to finalize regulations relating to excess emissions due to start-up shutdown and malfunction :from the Kennecott Copper Corporation smelter located in SaltLake City, Utah. EFFECTIVE DATE: May 27, 1977. FOR FURTHER INFORMATION CONTACT:

LouisW. Johnson, Chief,Planning and Operations Section, Air Programs Branch, U.S. Environmental ProtectionAgency, Region 

### vm, 1860 Lincoln Street, Denver, Colorado 80295. (303- 837-3711.> SUPPLEMENTARY INFORMATION: On October 29, 1975, EPA proposed regu- lationswhichrequire thereportingofexcess emissions from the Kennecott Copper Corporation smelter to the Administrator. In response 

### to the proposed regulations, various issues have been raised by the owner and operator of thesubject smelter. These comments object to tho proposed regulations because: (1) Tho proposal does not grant an automatic exemptionfrom theemissionslimitations after compliance with the reporting requirement; (2) there is no provision relating 

### to the exceE.s emissions resulting from thephasinginor outo!process and control equipment orfrom routinemaintenance of this equipment; (3) the pro- posal of a "reporting requirement" is inconsistent with the Agency's alleged approval of Statemalfunctionprovisions which exempt sources from ·appllcablo emission limitations during periods of

excess emissions.

DISCRETION VS. AUTO!IfATIC EXEMP1'XON

The claim that an emission limitation exemption should be automntic during periods of excess emissions due 

### to startup, shutdown or malfunction is based on smelter's contention that to penalize an operation for emissions that are beyond the control of a prudent operator is unreasonable. The Administrator agrees that the issuance of an administrative order or the initiation of judicial action following a period of excess emissions caused by circumstancesbeyond the control of the operator may not be appro- priate. However, the Administrator has determined that the automatic granting of a regulatory exemption for these periods o! excess emissions is not a suitable remedy.

Although theAdministratorrecognizes that some relief should be afforded during certain upset situations, the promul- gation of an upset regulation should not diminish the smelter's incentive to develop better operating and maintenance procedures. If an automatic exemption
were promulgated, it would encouraue the smelter to claim, after every period of excess emissions, that an exemption is warranted. Ifthe operator oftho smelter

were so inclined, it would be relativelY easy for the company, as a result 

### oi tho burden of proof placement, to effectively block all Federal enforcement against the smelter.

Clearly, the better approach and the

one which is consistent with the enforcement imperatives of section 110 is to place theburden ofproving the existence of an unavoidable malfunction on the'
source. Consequently, the only enforceable means available to the Agency in dealing with all emission excursions-be they potentially due to malfunctions or otherwise-is to issue notices of violations with the source being given an opportunity to prove that the violation
was due to an unavoidable malfunction.

The Administrator has concluded that the appropriate enforcement process, as prescribed by section 113, affords ample opportunity for the owner or operator of the smelter to identify malfunctions and upsets beyond his l'easonable control priortotheissuanceofanadministrative order. Therefore, the Administrator has determined that the way to encourage thecontinued improvementhl-the opera- tion of a smelter and its attendent control equipment is to retain his discretion to order administrative actions or initiate jugicial proceedings following a

FEDERAL REGISTER, VOL. 42, NO. 81-WEDNESDAY, APRIL 27, 1977

### HeinOnline --- 42 Federal Register No. 81 page 21473 (1977) period of excess emissions. However, the Administrator also :finds that it is-reasonable to detail the enforcement pro- cedure thathe willfollow when a period of 

## excess emissions occurs and indicate how this discretionwillbee."'ercised.

Upon receipt of the smelter's submission of the report of excess emissions requiroo under § 52.2325Cd> <3> <viii> of this subpart,'a Notice ·of Violation will be issued. This procedure is consistent with the decision in Wisconsin EnvironmentalDecade v. Train, 395 F. Supp. 313 CW.D. Wis., 1975), and other recent district court rulings. After the issuance of the Notice, the·Administrator will con-

.sider any information developed by the

sourcewhichmorefully explainsthe circumstances of the violation and the source's actions inresponsethereto. This information will be used in evaluating the seriousness of the violation and any good faith efforts of the owner or operatorofthesmeltertocomply andindeterminingwhetherfurther Agency action is appropriate._

In:his assessment ofthecircumstances ofthe**emL~n** ofpollutants inviolation of the applicable emission limitations, the Administrator will determine whether: ·

(1) The air pollution control equipment, process equipment. or processes were at all times maintained and operated,

### tothemaximumextentpracticable, ina manner consistent with good prac- tice f6r minimizing emissions;

<2> Repairs were made as expediti- ously as practicable including the use of off-shift labor and overtime; (3) The amount and duration of the

excess emissions were minimized to the maximum extent practicable during periods ofsuchemissions; and,

. (4) Bypass of strong 

## so. streams around acid plants 

### was limited to the maximum extent practicable.

If each <lf these determinations is affirmative in the opinion of the Agency, there could be-no additional course of actionwhich wouldbereasonablefor the
owner or operator to implement. Moreover, thesituationwouldnotwarrantthe imposition ofcriminalpenalties.AccordIngly, theAdministrator would generally not follow the Notice of Violation with any further action.

The promulgat1on of a policythatrequires the subjectsmeltertopresentevidence in mitigation of a finding of violation, if it desires 

### to contest the Administrator's enforcementaction, does notinvite ..frustrationofthe enforcement of emissions standards. However, at the

sametime, ample opportunityisprovided to the source to explain the circumstances surroundingthe excess emissions before anyAgency action is takenwhich mandates the expenditure of capital for additional control or results in any ju- dicial liability being affixed. In the Administrator's view, this approach most effectively encourages continued development of better operating and maint.enance procedures without imposing unreasonable requirements on the source. 

### RULES AND REGULATIONS

PliAsmGINAND O'O'T OF**E~UIPKEl>"T** The Administrator :finds that :routine phasingin and out ofproce:;s equipment is part of the normal operation of a smelt.er and should be accounted !or in the design and implementation of the operating procedure for the proce$ equipment. Accordingly, the Administrator concludes that it is reasonable to e.'{!)ect that emission limitations will not beviolated duringsuchperiods. I!excess emissions should occur during routine phasingin and out"Ofprocess equipment the e.'tcess emissbns will not be considered as malfunctions llllless the source can demonstrate that such emissions
were caused by a breakdown in the process equipment.

RoUTINE li.IAINTEUAt:CE The proposed regulations did not address periods of routine maintenance in the malfunction provisions. This action


### was**consist~nt** with the basic purpose of the proposed regulation, which was to address e.xcess emissions causedby "sudden and unavoidable !allure" of process orcontrol equipment. Allowing n smelter to operate independent of the emission control equi_pment during periods of routine maintenancewould be inconsistentwith bindinglegal interpretations of section 110 of the Clean Air Act. 

### Tnese legal opl.lilons dictate that prior t<J allowing a source 

### to use dispersion techniques to attain and maintain national ambient airquality standards <NAAQS>, the Agency must require such source to install all avnDnble controls. Permitting

a sourcetoemploy dispersion techniques 

### to attain and maintain national standards without constant .controls during periods of routine maintenance is contrary 

### to such legal decisions. This is because routine maintenance can be considered as basically a predictable .event, which canbe scheduled to a large ext.ent at the discretion of the smelter operator. As a result of this planning ability, routine maintenance can be scheduled to coincide with mnintennnce

on production equipmentor other smelt.er shutdowns. As such, the control equipment is alwayS nvnllnble when the equipmentitserves is operational.Moreover, since any industry, including the smelting industry, hns the ability to build and maintain inventory, the aspect of planning routine mnintennnco during periods of smelter shutdOwn should not be of grave concern to the smelter operator. Consequently, no excess emLc;sions 

## wru be allowed during periods of routine mnintennnce.

In addition, pernrlttfng te.'tce:s emissions during periods of routine maintenance would be inconsist.ent with the At{ency's approach to new source performance standards CNSPS> which dOC3 nqt permit excess emissions during periods cf scheduled maintenance. In
cases where Agency pollcles !or new sources differ from those for e.'dsting sources, the pollcy for existing sources is generally more stringent. This is due 

### to the fact that the Clean Air Act re

### 21473
quiresexistingsourcest<J becontrolledto protect the public health and welfare whDe. except**!~r** new source review, the princlpal focus !ornew sources is technologybased.Were**the~gency** to depart from existing policy and adopt maintenance provisions for existing smelters thatweremorelenientthanthemaintenance approach it has adopted for new smelters, it would have an impossible enforcementprobleminthe eventthata smelter chose 

### to expand an existing smelting site. With this ·in mind and given that the problems associated with scheduled acid plant maintenance are essentially the same whether the acid plantisneededtomeetNSPS orNAAQS, the Agency believes it appropriate to treatscheduled maintenanceunderboth situations inthesameway.
STAn: MAI.FtrnCTION" PROVISIONS Kennecott has argued·that the approach taken in these regulations is inconsist-ent with various malfunction regulations approved by EPA as part of State Implementation Plans 

## <SIPs> submitted by several western States. In response. the Agency will undertake a review of all State malfunction regula- tions.Shouldthe:reviewindicat.ethatthe resuiations do not satisfy the :requirements of Section 110 ofthe Act, the affected States wDl be requested to take ·COrrective action. In reviewing these regulations the Agency wDl focus onthe

same considerations that were central

### to the rulemaking promulgated herein. I!, in reviewing the involved Stateregu- lations, itbecomes clear that theyhave thepot.ential !orpermittingviolations of NAAQS by exempting malfunction episodes from applicable emission limitations, the malfunction provisions wDl be rejected on the ground that they interfere with attainment o! the national standards.

Finally, where ambient standards are being achieved by virtue of an interim supplementary control system, a tan stack and reasonably available control technology CRACT>. a SIP provision exempting malfunction periods !rom applicable emission limitations might not resultingroundlevelconcentrationsthat exceed the standards. However, such a provision would have the effect of condoning emissions above the RACT emission level While 

### it mightbe appropriate toforbear !romenforcingwherethemalfunction is beyond the control of the source, EPAbelieves thatitwould beinappropriate to condone. by exemption, emission levels above the RACT :floor. Thus, in evaluatingthe SIPs inquestion, EPAwDl Cinadditiontotheotherfactors noted above> :regard asunacceptableany mal!unctlonprovisionwhich, asa matter of regulatory exemption, allows emissionlevels to exceed theRACTfloor duringmal!unction conditions. Om:LINE OF' REGULA7IONS Briefly, theregulations define all periods of excess emissions as violations of the applicable emissions standards and establ!sh a procedurewherebytheowner

FEDERAL REGISTER, VOL. 42, NO. 81-WEDNESDAY, APRIL 27, 1977

### HeinOnline --- 42 Federal Register No. 81 page 21474 (1977) 

### 21474

oroperatoroftheKennecott smeltermay supply information to the Administrator in order to enable him to carry out his statutory duties. Although the informationtobe supplied is notlimited in scope, the regulation does require that if informationis given to theAgency, itinclude: (1) identification of the emission points; (2) the magnitude of the excess emissions; <3> the identity of the process or control equipment causing the excess emissions; <4> the cause and 'nature of the excess emissions< and <5> a descrip- tion of the steps taken by the owner or operator of the subject smelter 

### to remedy the situation causing the emissions, prevent a recurrence and limit the
excess emissions. Finally, nothing in the regulation relieves the source of its obligation 

### to attain and maintain the national ambient air quality standards for SOa nor precludes the Administrator from initiating any appropriate actions under Sections 113 or 303 of the Clean Air Act.

This rulemaking will become effective

on May 27, 1977, and is authorized by Sections 110, 113, and 301 of the Clean Air Act <42 

### u.s.c. 1857c-5, 1857-c-8, and 1857g).

Dated: March30, 1977.

BARBARA BLUM, Acting Administrator. Part 52 of Chapter I, Title 40 of the Code of Federal Regulations is amended asfollows: · Subpart lT-Utah In § 52.2325, paragraph <e> is added

as follows: § 52.2325 Control Strategy: Sulfur oxides. 

## • • 

## • • <e> Compliance with emission standards; Reporting excess emissions during periods ot start-up, shutdown, and malJunction: Kennecott smelter complex. (1) The provisions of this paragraph

are applicable to the Kennecott Copper CorporationlocatedinSaltLake County, Utah, in the Wasatch Front Intrastate Air Quality ControlRegion. (2) All terms used in this paragraph but not specifically defined below shall have the meaning given them in the Clean Air Act or Parts 51, 52, or 60 of thischapter.

<1> Theterm "excess emissions" means an emission rate which exceeds any ap- pllcable emission limitation prescribed by paragraph (d) of this section. The averaging time and test procedures for determining such excess emissions shall be 

### as specified as part of the applicable emissionlimitation.

(ii) The term "malfunction" means any sudden and unavoidable failure of air pollution control equipment or process equipment or a process_to operate in
a normal and usual manner. Failures that are caused entirely or in part by poor maintenance, careless operation, or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions.

<iiD The term "start-up" means the setting into operation of any air polluRULES AND REGULATIONS

tion control equipment orprocess equipment for any purpose, except routine phasing in of process equipment. <iv> The term "shutdown" means the cessation of operation of any air pollu- tioncontrol equipment or process equipment for any purpose, except routine ·phasing out of process equipment.
<v> The term "violation" means any incident of excess emissions, .regardless of the circumstances of the occurrence.

<3> 

## m In the case of excess emissions from the Kennecott smelter for which the Administrator has issued a Notice of Violation, the owner or operator of the subject smelter may submit the following data in order 

### to a&ist the Administratorin carrying outhis statutory responsibility under section 113 of the Clean AirAct to: <A> take into account, when issuing an administrative order under section 113<a> <4>, the "seriousness of theviolation and any good faith efforts to comply" with paragraph (d) of this section, or <B> initiate a judicial action under section 113<b> (1) or (2)

or section 113<c> (1) <A> or <B>, in ap- propriate circumstances. <ii) Each submission shall include, 

### as a minimum:

'(A) The identity of the stack and/or other emission point where the excess emissions occurred:

<B> Themagnitude oftheexcess emissions expressed inthe units of the appli- cable emissionlimitationandtheoperat- ing data and calculations used in determining the magnitude of the excess emissions;

<C> The time and duration of the excess emissions;

<D> The identity of the equipment causing the excess emissions;

<E> The nature and cause of such
excess emissions;

<F> If the excess emissions were the result of a malfunction, steps taken t{)_ remedy the malfunction and the steps taken or· planned t{) prevent the recurrence of such malfunctions; <G>Thestepstaken tolimittheexcess emissions; and

·<H> Documentation that the air pol- lution control equipment, process equipment, or processes were at all times maintained and operated, to the maximum extent practicable, in a manner consistent with good practice for minimizingemissions.

<4> At any time, the owner or operator of the Kennecott smelter has the right 

### to submit data, information or reportst{) theAdministrator, includingbut not limited 

### to the information specified in paragraph <e> <2> (ii) above, in order to assist the Administrator in carrying out his statutory responsibilities under sections 113 and 303 of the Clean Air Act. <5> The submittal of information pursuant to paragraphs <e> <3> and <4> of this paragraph shallbe used by the Administrator in determining the nature of the violation, the need for further enforcement action and the appropriate sanctions, ifany, under the provisions of theClean AirAct. 

### ' <6> Nothing in this section shall bo construed to limit the obllgatlon of tho

source to attain and maintain the national air quality standards for SOJ nor the authority of the Administrator 

### to institute actions under sections 113 and 303 of the Clean Air Act or to exercise his authority under section 114 of the OleanAirAct.

[FRDoc.77-12001 FJlec14-26-77;8:45 aml

Title 41-Public Contracts and Property Management CHAPTER 128-DEPARTMENT OF JUSTICE
PART 128-18-ACQUJSJTJON OF REAL PROPERTY Subpart 128-18.5o-Unlform Relocation

Assistance and Real Property Acqulsl· tion Policies AGENCY: Departmentof Jw;tice. ACTION: Final rule. SUMMARY: This nile pre;;cribes the procedures and regulations governing relocation assistance and land acquisi- tionpolicies oftheDepartmentofJustice undertheUniformRelocationAssistance and Real Property Acquisition Policies Act of 1970. This action incorporates changes in the guidelines for agency implementation of General Service Administration's Federal Management Circular 74-8 published on October 4, 1974 and Supplement 1 thereto, publlshed on July 3, 1975. EFFECTIVE DATE: This nlle becomes effectiveonApril27,1977. FOR FURTHER INFORMATION CONTACT:

WilliamH. O'Donoghue, Chief, Administrative Programs Section, Security and Administrative Progt·ams Staff, Office of Management and Finance, Department of Justice, lOth and Con• stitution Ave., NW., Washingt{)n, D.C.

- 20530 <Phone 739-2971>. SUPPLEMENTARY INFORMATION: On Augnst 16, 1976 there was published in the FEDERAL REGISTER (4ll"R 34636) a notice of proposed rulemaking in ChaP· ter 128 of Title 41 of the Code of Federal Regulations. The Department of Justice proposed 

### to revise its regulations gov- erningrelocation assistance and land acquisition pollcies under the Uniform Re· location Assistance and Real Property Acquisition Policies Act of 1970. Interested parties were given the opportunity 

### to submit, notlater thanAugUSt 31, 1970, written views on the proposed revised regulations.· Comments were received from one private citizen. The comments suggested (1) the inclusion of a para- graph under § 128-18.5003-21 to permit individuals toreceive expenses for physi· cal changes to the replacement site and for the conversion of equipment and (2) to change the paragraph under § 128- 18.5003-24(a) 

### to entitle the displaced
person 

### to the difference between thefair market value of the personal property for continued use at its location prior to displacement and the "net proceeds of

FEDERAL REGISTER, VOL. 42, NO. 81-WEDNESDAY, APRIL 27, 1977