UNITEDSTATESENVIRONMENTAL PROTECTION AGENCY WASHINGTON,

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OFFICE:OFENFORCtMENT MEMORANmm

SUBJECT: Contingency Plan for FCD Systems During Downtime

as a Function of PSD

FROM: Director, Division of Stationary Source Enforcement

TO: G.T. Helms, P.E. Deputy Director Air and Hazardous Materials Division

.This is in response to your request dated November 9, 1977, asking**wh~ther** PSD approvals for new sources using FCD systems can be.conditioned to require a contingency plan for periods when the FCD system is not functioning.

PSD and SIP regulations require the establishment of emission limitations which will be sufficient to ensure nondegradation of air quality and attainment and maintenance of NAAOS, respectively. In order to assure this at all times it is necessary for the source owner or operator to be in compliance with 

### all emission**limi~ations** at all times. Fer tbis reason, the Agency in the April 27, 1977 (42 FR 21472) promulgated a requirement outlining our position on SIP malfunctions. In the preamble to those requirements it is stated, ••••the Administrator has determined that tbe automatic granting of a regulatory exemption (permit in**t~is** case) for these oeriods of excess emissions is not a suitable remedy.w**F=o~** this language, therefore, it would not be wise to include \'/ithin the PSD per:nit a specific exemption from the requirements during periods of "upsetq or**nmalfunc~ion** ..

, 

# . We do, however recognize that some relief should be afforded**du~ing** certain upset situations. If the**sour~e** were allowed an autocatic exeoption it would encourage the

source to claim,'after every period of excess emissions, that an exemption is warranted. Therefore, the only enforceable

means ayailable to the Agency in dealing**~ith** all emission excursions-be they potentially due to malfunctions or**othe~~ise** is to issue notices of violations with the source beina given an opportunity to prove that the violation was**d~e** to
an unavoidable situation of upset or malfunction•



### .'In response to the particular items raised in your memo, ·I would not recommend specifically addressing the system by-pass. That is, if a source elected to have a by­

_pass capability it could do so, however it would in no way limit our abilities 

### to enforce the emission limits during those periods when the emissions were not routed through the control**de~ice.** We would then exercise our enforcement options to address the sources failure to satisfy the prescribed emission limit.

While I would not recommend requiring a malfunction contingency plan, I would alert the source that any inability
on their part to maintain their emissions consistent with the applicable regulation 

### may result in an enforcewent action initiated by EPA. This would apply to requirements necessary to attain and maintain the NAAQS as well as PSD.

To facilitate this enforcement approach it will require the issuance of a Notice of Violation (NOV), although this will not be necessary for NSPS or NESUAPS, for**e~ery** period of excess emission**ascer~ained** by your Office. After issuance of the NOV the Region**sh~uld** consider any information developed by the source which more fully explains the circumstances of the violation and any good faith efforts of the owner or operator of the source to comply and in determining whether further,Age'ncy action is appropr.iate

.



# . If you have any further questions or 

### comments, ?lease contact Rich Biondi (755-2564) of my staff.

Edward E. Reich

cc: Dick Rhoads, CPDD Mike Trutna, CPDD

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