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

21472 

preamble to EPA's replacement regula- tion which is being promulgated in another section of this FEDERAL REGISTER. 

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 It is EPA'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 the smelter. 

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, the EPA notice proposing disapproval of the state regulation and the suppor- tive documentation did not comply with 

the Administrative Procedure Act. It is 

the Agency's position that the notice and 

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 evidence has been presented in support of 

this regulation, the Administrator 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- gated by EPA, and the scs regulation 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 to EPA. 

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, Salt Lake City, Utah 84111. 

(42 U.S.C.1857c-5.) 

Dated: March 30, 1977. 

BARBARA BLUM, 

Acting AcW!.inistrator. 

Part 52 of Chapter I, Title 40 of the 

Code of Federal Regulations is amended 

as follows: 

Subpart TT-Utah 

1. In § 52.2320, paragraph Cc> is 

amended to read as follows: · 

§ 52.2320 Identification of plan. 

• * * • • 

<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 

is disapproved because it docs not provide 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: Final rule. 

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 Salt Lake City, Utah. 

EFFECTIVE DATE: May 27, 1977. 

FOR FURTHER INFORMATION CONTACT: 

Louis W. Johnson, Chief, Planning and 

Operations Section, Air Programs Branch, U.S. Environmental Protection Agency, Region vm, 1860 Lincoln 

Street, Denver, Colorado 80295. (303-

837-3711.> 

SUPPLEMENTARY INFORMATION: 

On October 29, 1975, EPA proposed regu- lations which require the reporting of excess 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 the subject 

smelter. These comments object to tho 

proposed regulations because: (1) Tho 

proposal does not grant an automatic 

exemption from the emissions limitations 

after compliance with the reporting requirement; (2) there is no provision relating to the exceE.s emissions resulting from the phasing in or out o! process and 

control equipment or from routine maintenance of this equipment; (3) the pro- posal of a "reporting requirement" is 

inconsistent with the Agency's alleged approval of State malfunction provisions 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 circumstances beyond 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 the Administrator recognizes 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. If the operator of tho 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 the burden of proving 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 

prior to the issuance of an administrative 

order. Therefore, the Administrator has 

determined that the way to encourage the continued 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 that he will follow when a period 

of excess emissions occurs and indicate 

how this discretion will be e."'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 Environmental Decade 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 

source which more fully explains the circumstances of the violation and the 

source's actions in response thereto. This 

information will be used in evaluating 

the seriousness of the violation and any good faith efforts of the owner or operator of the smelter to comply and in determining whether further Agency action is 

appropriate._ 

In :his assessment of the circumstances 

of the emL~n of pollutants in violation 

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, to the maximum extent practicable, 

in a 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 of such emissions; 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 

action which would be reasonable for the 

owner or operator to implement. Moreover, the situation would not warrant the 

imposition of criminal penalties. AccordIngly, the Administrator would generally 

not follow the Notice of Violation with 

any further action. 

The promulgat1on of a policy that requires the subject smelter to present evidence in mitigation of a finding of violation, if it desires to contest the 

Administrator's enforcement action, does 

not invite ..frustration of the enforcement 

of emissions standards. However, at the 

same time, ample opportunity is provided 

to the source to explain the circumstances surrounding the excess emissions 

before any Agency action is taken which 

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 

PliAsmG IN AND O'O'T OF E~UIPKEl>"T 

The Administrator :finds that :routine 

phasing in and out of proce:;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 

be violated during such periods. I! excess 

emissions should occur during routine 

phasing in and out "Of process 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 caused by "sudden and unavoidable !allure" of process 

or control equipment. Allowing n smelter 

to operate independent of the emission 

control equi_pment during periods of 

routine maintenance would be inconsistent with binding legal 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 air quality standards <NAAQS>, 

the Agency must require such source to 

install all avnDnble controls. Permitting 

a source to employ 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 can be 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 equipment or other smelt.er shutdowns. As such, the control 

equipment is alwayS nvnllnble when the 

equipment it serves 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 re21473 

quires existing sources t<J be controlled to 

protect the public health and welfare 

whDe. except !~r new source review, the 

princlpal focus !or new sources is technology based. Were the~gency to depart from existing policy and adopt maintenance provisions for existing smelters 

that were more lenient than the maintenance approach it has adopted for new 

smelters, it would have an impossible enforcement problem in the event that a 

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 

plant is needed to meet NSPS or NAAQS, the Agency believes it appropriate to 

treat scheduled maintenance under both 

situations in the same way. 

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. Should the :review indicat.e that the 

resuiations do not satisfy the :requirements of Section 110 of the Act, the affected States wDl be requested to take 

·COrrective action. In reviewing these 

regulations the Agency wDl focus on the 

same considerations that were centralto the rulemaking promulgated herein. 

I!, in reviewing the involved State regu- lations, it becomes clear that they have 

the pot.ential !or permitting violations 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 

result in ground level concentrations that 

exceed the standards. However, such a 

provision would have the effect of condoning emissions above the RACT emission level While it might be appropriate 

to forbear !rom enforcing where the malfunction is beyond the control of the 

source, EPA believes that it would be inappropriate to condone. by exemption, 

emission levels above the RACT :floor. 

Thus, in evaluating the SIPs in question, 

EPA wDl Cin addition to the other factors 

noted above> :regard as unacceptable any 

mal!unctlonprovision which, as a matter 

of regulatory exemption, allows emission levels to exceed the RACT floor during mal!unction conditions. 

Om:LINE OF' REGULA7IONS 

Briefly, the regulations define all periods of excess emissions as violations of 

the applicable emissions standards and 

establ!sh a procedure whereby the owner 

FEDERAL REGISTER, VOL. 42, NO. 81-WEDNESDAY, APRIL 27, 1977 
HeinOnline --- 42 Federal Register No. 81 page 21474 (1977)

21474 

or operator of the Kennecott smelter may supply information to the Administrator 

in order to enable him to carry out his 

statutory duties. Although the information to be supplied is not limited in scope, the regulation does require that if information is given to the Agency, it include: 

(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: March 30, 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 Corporation located in Salt Lake County, Utah, in the Wasatch Front Intrastate 

Air Quality Control Region. (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 

this chapter. 

<1> The term "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 

emission limitation. 

(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 or process equipment for any purpose, except routine 

phasing in of process equipment. 

<iv> The term "shutdown" means the 

cessation of operation of any air pollu- tion control 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 Administrator in carrying out his statutory responsibility under section 113 of the 

Clean Air Act to: <A> take into account, 

when issuing an administrative order 

under section 113 <a> <4>, the "seriousness of the violation 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> The magnitude of the excess emissions expressed in the units of the appli- cable emission limitation and the operat- 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 > The steps taken to limit the excess 

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 minimizing emissions. 

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

right to submit data, information or reports t{) the Administrator, including but 

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 shall be used by the Administrator in determining the nature 

of the violation, the need for further 

enforcement action and the appropriate 

sanctions, if any, under the provisions of 

the Clean Air Act. 

' 

<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 

Olean Air Act. 

[FR Doc.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: Department of Jw;tice. 

ACTION: Final rule. 

SUMMARY: This nile pre;;cribes the 

procedures and regulations governing relocation assistance and land acquisi- tion policies of the Department of Justice 

under the Uniform Relocation Assistance 

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 

effective on April27,1977. 

FOR FURTHER INFORMATION CONTACT: 

William H. 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- erning relocation 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, not later than AugUSt 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 to receive 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 the fair 

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