UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

WASHINGTON, o.e. ,0460
 

OFFICE: OF ENFORCtMENT 

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 "upset q 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 emiss ions, 

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~~iseis 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 address ing 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 inabi lity
 

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
 

r _