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Citation: 42 Fed. Reg. 21472 1977 

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21472

preamble to EPA's replacement regulation which is being promulgated in an- other section of this FEDERAL REGISTER.

EPA's authority to disapprove the regulation 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 only 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 position that the state regulation does ndt

require installation 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 supportive 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 the proposed action, enabling

the public to understand and meaningfully 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

SOs regulation for Kennecott, promulgated by EPA on November 26, 1975, the

malfunction regulation being promulgated by EPA, and the SCS regulation to

be proposed, will provide for the attainment 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 re- sult, do not impose any additional burdens on sources subject to such provisions, 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 com- ments and 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 900, 1860 Lincoln Street, Denver,

Colo. 80295.

'But see Kennecott Copper Corporation v. Train, 9 ERC 1693 (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 Building, 126 South State

Building, Salt Lake City, Utah 84111.

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

Dated: March 30, 1977.

BARBARA BLUM,

Acting Administrator.

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 (c) 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 (a) 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 does not provide

for attainment of the short-term

ambient standards for SO2, is unenforceable, and allows the utilization of a supplementary control system without re- quiring the application of reasonably

available control technology.

[FR Doc.77-12000 Filed 4-26-77;8:45 am]

[FRL 704-7]

PART 52-APPROVAL AND PROMULGATION 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 VIII, 1860 Lincoln

Street, Denver, Colorado 80295. (303-

837-3711.)

SUPPLEMENTARY INFORMATION:

On October 29, 1975, EPA proposed regulations 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 the

proposed regulations because: (1) The

proposal does not grant an automatic

exemption from the emissions limitations

after compliance with the reporting re- quirement; (2) there is no provision re- lating to the excess emissions resulting

from the phasing in or out of process and

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

inconsistent with the Agency's alleged

approval of State malfunction provisions

which exempt sources from 'applicable

emission limitations during periods of

excess emissions.

DISCRETION vs. AUTOMATIC EXEMPTION

The claim that an emission limitation

exemption should be automatic 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 un- reasonable. 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 con- trol of the operator may not be appro- priate. However, the Administrator has

determined that the automatic granting of a regulatory exemption for these

periods of excess emissions Is not a suitable remedy.

Although the Administrator recognizes

that some relief should be afforded during certain upset situations, the promulgation 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 encourage

the smelter to claim, after every period

of excess emissions, that an exemption Is

warranted. If the operator of the smelter were so inclined, it would be relatively

easy for the company, as a result of the

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 reasonable control

prior to the Issuance of an administrative

order. Therefore, the Administrator has

determined that the way to encourage

the continued improvement In the operation of a smelter and Its attendent con- trol equipment Is to retain his discretion

to order administrative actions or Initiate judicial proceedings following a

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

HeinOnline -- 42 Fed. Reg. 21472 1977
RULES AND REGULATIONS

period of excess emissions. However, the

Administrator also finds that it is rea- sonable to detail the enforcement pro- cedure that he will follow when a period of excess emissions occurs and indicate

how this discretion will be exercised.

Upon receipt of the smelter's submission of the report of excess emissions

requir d under § 52.2325(d) (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

(W.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. Inhais assessment of the circumstances

of the emission of pollutants in violation

of the applicable emission limitations.

the Administrator will determine

whether:

(1) The air pollution control equip- ment, process equipment. or processes were at all times maintained and oper- ated, to the maximum extent practicable, in a manner consistent with good prac- tice for 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 of 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 promulgation 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-rustration 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 maintenance procedures without imposing unreasonable requirements on the source.

PHASING IN AND OUT OF EquwMN'T

The Administrator finds that routine

phasing in and out of proces equipment

is part of the normal operation of a smelter and should be accounted for in

the design and implementation of the

operating procedure for the process

equipment. Accordingly, the Administrator concludes that It is reasonable to

expect that emission limitations will not

be violated during such periods. If excess emissions should occur during routine

phasing in and out of process equipment

the excess emissions will not be considered as malfunctions unless the source can demonstrate that such emissions were caused by a breakdown in the

process equipment.

ROUTINE AMvTENAu~CS

The proposed regulations did not address periods of routine maintenance in

the malfunction provisions. This action was consistent with the basic purpose of

the proposed regulation, which was to

address excess emissions caused by "sudden and unavoidable failure" of process or control equipment. Allowing a smelter

to operate independent of the emission

control equipment during periods of

routine maintenance would be inconsistent with binding legal interpretations of

section 110 of the Clean Air Act. These

legal opinions dictate that prior to 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 available controls. Permitting a source to employ dispersion techniques

to attain and maintain national standards without constant controls during

periods of routine maintenance is con- trary to such legal decisions. This is

because routine maintenance can be

considered as basically a predictable

event, which can be scheduled to a large

extent at the discretion of the smelter

operator. As a result of this planning ability, routine maintenance can be

scheduled to coincide with maintenance on production equipment or other smelter shutdowns. As such, the control

equipment is always available when the

equipment it serves is operational. Moreover, since any industry, including the

smelting industry, has the ability to

build and maintain inventory, the as- pect of planning routine maintenance

during periods of smelter shutdbwn

should not be of grave concern to the

smelter operator. Consequently, no ex- cess emissions will be allowed during periods of routine maintenance.

In addition, permitting vexcess emissions during periods of routine mainte- mance would be inconsistent with the

Azency's approach to new source per- formance standards (NSPS) which does

nQt permit excess emissions during

periods of scheduled maintenance. In cases where Agency poliies for new sources differ from those for existing

sources, the policy for existing sources is generally more stringent. This is due

to the fact that the Clean Air Act requires existing sources to be controlled to

protect the public health and welfare

while, except for new source review, the

principal focus for new sources is technology based. Were the Agency 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.

STATE MALcToXiT Pnovisroxs

Kennecott has argued, that the approach taken in these regulations is inconsistent 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 regulations. Should the review indicate that the

regulations do not satisfy the requirements of Section 110 of the Act, the affected States will be requested to take

-corrective action. In reviewing these

regulations the Agency will focus on the same considerations that were centralto the rulemaking promulgated herein.

If, in reviewing the involved State regu- lations, It becomes clear that they have

the potential for permitting violations of

NAAQS by exempting malfunction episodes from applicable emission limitations, the malfunction provisions will be

rejected on the ground that they interfere with attainment of the national

standards.

Finally, where ambient standards are being achieved by virtue of an interim

supplementary control system, a tall

stack and reasonably avalable control

technology (RACT), a SIP provision ex- empting malfunction periods from applicable emission limitations might not

result in ground level concentrations that

exceed the standards. However, such a provision would have the effect of con- doning emissions above the RACT emission level. While it might be appropriate

to forbear from 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 will (in addition to the other factors

noted above) regard as unacceptable any malfunction provision which, as a matter

of regulatory exemption. allows emission levels to exceed the RACT floor during malfunction conditions.

OUT=arm or REATIONs

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

the applicable emissions standards and

establish a procedure whereby the owner

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

21473

HeinOnline -- 42 Fed. Reg. 21473 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 description 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 na- tional ambient air quality standards for

S02 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

as follows:

Subpart f--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 of start-up, shutdown, and mnalfunction: Kennecott smelter complex.

(1) The provisions of this paragraph

are applicable to the Kennecott Copper

Corporation located in Salt Lake County,

Utah, in the Wasateh Front Intrastate

Air Quality Contiol 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.

(i) The term "excess emissions" means

an emission rate which exceeds any applicable 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

rot be considered malfunctions.

(tii) 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 pollution 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) (i) 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 appropriate 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 applicable emission limitation and the operating 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 to

remedy the malfunction and the steps

taken or. planned to prevent the recur- rence of such malfunctions;

(G) The steps taken to limit the excess emissions; and (H) Documentation that 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 practice for minimizing emissions.

(4) At any time, the owner or operator of the Kennecott smelter has the

right to submit data, information or re- ports to 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, uhder the provisions of

the Clean Air Act.

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

(6) Nothing In this section shall be

construed to limit the obligation of the

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

Clean Air Act.

[FR Do.77-12001 Pled 4-26-77;8:45 aml

Title 41-Public Contracts and Property Management

CHAPTER 128-DEPARTMENT OF

JUSTICE

PART 128-18-ACQUISITION OF REAL

PROPERTY

Subpart 128-18.50-Uniform Relocation

Assistance and Real Property Acqulsltion Policies

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: This rule prescribes the

procedures and regulations governing

relocation assistance and land acquisition policies of the Department of Justice

under the Uniform Relocation Assistance

and Real Property Acquisition Policies

Act of 1970. This action ncorporates

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, published on July

3, 1975.

EFFECTIVE DATE: This rule becomes

effective on April 27, 1977.

FOR FURTHER INFORMATION CONTACT:

William H. O'Donoghue, Chief, Administrative Programs Section, Security

and Administrative Programs Staff,

Office of Management and Finance,

Department of Justice, 1oth and Constitution Ave., NW., Washington, D.C.

20530 (Phone 739-2971).

SUPPLEMENTARY INFORMATION:

On August 16, 1976 there was published

in the FEDERAL REGISTER (41 FI 34636) a

notice of proposed rulemaking In Chapter 128 of Title 41 of the Code of Federal

Regulations. The Department of Justice

proposed to revise its regulations governing relocation assistance and land ac- quisition policies under the Uniform Relocation 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

froni one private citizen. The comments

suggested (1) the inclusion of a paragraph under § 128-18,5003-21 to permit

individuals to receive expenses for physical 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

27, 1977

HeinOnline -- 42 Fed. Reg. 21474 1977