UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

REGIONS
 

9991STH STREET- SUITE 300
 

DENVER, CO S0202-2466
 

Phone SOO-227-S917
 

http://www.epa.gov/regionOS
 

Ref: 8P-AR	 FEB II 3m 

Terry L. O'Clair, Director 

Division of Air Quality 

Environmental Health Section 

North Dakota Department ofHealth 

P.O. Box 5520 

Bismarck, ND 58506-5520 

RE:	 EPA Region 8's Review ofNorth Dakota Air 

Pollution Control Rule 33-15-01-13, Shutdown and 

malfunction of an installation - Requirement for 

notification. 

Dear Terry: 

I am following up on a July 7, 2004 telephone conversation Amy Platt, Laurie Ostrand 

and Jonah Staller had with you and Tom Bachman regarding concerns EPA has with North 

Dakota's Shutdown and Malfunction provisions in rule 33-15-01-13. We agreed to send you a 

letter that further explains these concerns with options and suggestions to revise the rule. 

In the way of background for our review ofNorth Dakota's rule, we note that state 

implementation plans (SIPs) must assure that the national ambient air quality standards 

(NAAQS) and prevention of significant deterioration (PSD) increments are protected at all times. 

SIP provisions that allow for an automatic exemption for excess emissions from start-up, shutdown, malfunction and maintenance activities may result in levels of emissions that interfere 

with attainment and maintenance ofthe NAAQS and/or protection ofthe PSD increments. 

Given the above, the following principles apply: 

1.	 A state's rule should make clear that all excess emissions are violations. One reason 

to define all excess emissions as violations is to ensure that owners and operators 

have appropriate incentives to properly design, operate, and maintain their facilities. 

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2.	 A state always has the discretion to not pursue an enforcement action for excess 

emissions resulting from start-up, shut-down, malfunction and maintenance activities. 

3.	 A state decision to not pursue an enforcement action must not bar EPA or citizen 

enforcement ofthe applicable requirements as allowed under the Clean Air Act. 

EPA's views related to these principles are explained in the enclosed September 20, 1999 

EPA memorandum from Steven A. Herman and Robert Perciasepe to Regional Administrators 

entitled "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, 

Startup, and Shutdown," and April 27, 1977 and November 8, 1977 Federal Register notices on 

the same topic (42 FR 21472 and 42 FR 58171, respectively). 

Our recent concerns with the North Dakota rule originally came to light when we 

reviewed the draft PSD pennit to construct for Red Trail Energy's proposed ethanol production 

plant near Richardton, North Dakota. As a result ofthat permit action we decided to take a 

closer look at North Dakota's SIP-approved shutdown and malfunction provisions in 33-15-01­

13, as well as other SIP-approved rules. Our review found that we had inadvertently approved 

problematic provisions into the SIP. Our detailed comments are contained in the enclosure to 

this letter. Our main concern with the provisions in 33-15-01-13 is that they appear to allow 

sources to continue to operate, and potentially exceed emission limits, during maintenance on 

control equipment or during a malfunction. 

We also note that rule 33-15-05-03.2(2)(d), for refuse incinerators, contains malfunction 

provisions that allow sources to operate, and potentially exceed emission limits, during 

malfunctions following Department approval. 

There are a couple ofoptions the Department could pursue to address our concerns with 

the maintenance and malfunction provisions in 33-15-01-13 and the malfunction provisions in 

33-15-05-03.2(2)(d): 

1.	 The Department could revise the existing rules to be purely rules that require notification 

when excess emissions occur. This would include removing any language that appears to 

allow sources to continue to operate, and potentially exceed emission limits, during 

maintenance or malfunctions. 

2.	 The Department could revise the existing rules to be notification rules (as discussed 

above) that also contain enforcement discretion provisions for excess emissions due to 

malfunctions. An example of an enforcement discretion rule is the draft ofthe Wyoming 

rule discussed below and enclosed. 

3.	 The Department could develop affirmative defense provisions for startup, shutdown 

and/or malfunctions as discussed in our September 1999 policy, and revise the existing 

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rules to be notification rules (as discussed above). Note, the September 1999 policy does 

not contemplate the use of affinnative defense provisions for routine maintenance. 

Finally, rule 33-15-20-04 addresses production facilities emission requirements and 

contains malfunction/maintenance provisions. Paragraph 6 indicates that it only pertains to the 

reporting ofmalfunctions and maintenance and does not obviate a source's responsibility to 

comply with other requirements. These provisions are acceptable except to the extent that the 

paragraph refers back to 33-15-01-13. Depending on how the Department addresses our 

concerns with 33-15-01-13, rule 33-15-20-04 may also need to be revised. 

We are also providing comments on the variance provisions in 33-15-01-07. Again, 

because SIPs need to assure attainment and maintenance ofthe NAAQS and protection ofPSD 

increments at all times, provisions that allow sources to exceed emission limitations are generally 

prohibited. North Dakota's variance provisions were inadvertently approved into the SIP. 

You should be aware that we have been evaluating other state rules in our Region against 

the Clean Air Act and the principles explained in the September 1999 policy. 

-We examined Wyoming's existing excess emissions rules, in response to the 

Administrator's order in a Title V petition case, and found problems with them. We have 

worked with the state and have settled on language that would resolve our concerns. See 

enclosed language Wyoming is intending to propose as a SIP revision this spring. 

-We proposed to disapprove a Colorado rule that would have allowed a set 

number of exceedances ofopacity limits per quarter, including during startup, shutdown, 

and malfunction. We suggested the state pursue an affinnative defense rule for startup 

and shutdown. The state adopted such a rule and we are evaluating it against the 

requirements ofthe Clean Air Act. Also, in Colorado, we infonned the state that their 

existing upset rule was a problem. We negotiated language with state staffover the 

course of several months. The state Commission declined to act on the draft changes. 

Weare now considering appropriate follow-up action. 

-We encouraged Utah to develop a rule to address concerns we raised with its 

"Unavoidable Breakdown" rule. Utah proposed a new affinnative defense rule whose 

public comment period ran from October 1, 2004 to November 1, 2004. On October 22, 

2004 we sent a letter to Utah with our comments and concerns with the new rule. 

Because of the comments received on the rule, Utah decided to not proceed with the 

rulemaking and instead is starting discussions with EPA and industry about excess 

emission rules. 

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Please contact Laurie Ostrand or Amy Platt if you have any questions regarding this letter 

or ifyou would like EPA review of any language you develop to address these concerns. They 

both can be reached at (800) 227-8917. 

Enclosures 

cc: Tom Bachman, ND Department ofHealth 

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EPA Comments on Rule 33-15-01-13, "Shutdown and malfunction of an 

installation - Requirement for notification" 

1) Paragraph 1. Maintenance shutdowns - appears to allow sources to continue to 

operate and exceed emission limitations during maintenance of control equipment. Although the 

rule does not specifically indicate that sources can exceed limits during maintenance, the 

paragraph indicates that sources can shut down control equipment for maintenance while still 

operating the source so long as the Department is notified and certain information is provided. 

In EPA's view, it is not appropriate under the Clean Air Act to automatically allow 

sources to exceed emission limitations during maintenance or to provide an affirmative defense 

for excess emissions during maintenance activities because SIPs must assure attainment and 

maintenance ofthe NAAQS and protection ofPSD increments at all times. Among other things, 

an owner or operator should be able to schedule maintenance that might otherwise lead to excess 

emissions to coincide with maintenance on production equipment or during other facility 

shutdowns. It is not appropriate to provide any incentive to owners or operators, in the form of 

an automatic exemption or an affirmative defense, to schedule maintenance on control equipment 

while they continue to operate production processes. 

In this regard, you should note that our September 20, 1999 memorandum from Steven A. 

Herman and Robert Perciasepe to Regional Administrators entitled "State Implementation Plans: 

Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown" does not 

discuss allowing an affirmative defense for excess emissions during maintenance activities. This 

omission was intentional and based on our interpretation ofthe Clean Air Act that any excess 

emissions during maintenance activities should be addressed only through the exercise of 

enforcement discretion and not through the provision of an affirmative defense. For further 

discussion ofhow we view maintenance activities, see the enclosed April 27, 1977 and 

November 8, 1977 Federal Register notices. 

When we mentioned the above concern to you on the July 7, 2004 call, you indicated that 

rule 33-15-02-07, "Concentrations of air contaminants in the ambient air restricted," prohibits 

sources from exceeding ambient air quality standards. You suggested that the NAAQS would be 

protected even if a source were availing itself of the provisions in paragraph 1 of33-15-01-13. 

However, provisions that indicate that sources cannot cause or contribute to NAAQS violations 

are not practically enforceable. Among other things, we note that rule 33-15-02-07 establishes 

no means to determine compliance with or enforce its requirements. 

In addition, the 1970 Act established the air quality management process as a basic 

philosophy for air pollution control in this country. Under this system, we establish air quality 

goals (NAAQS) for common pollutants. States develop control programs (SIPs) and also issue 

permits under the PSD or nonattainment new source review programs, to assure that the NAAQS 

are attained and maintained and increments protected. The NAAQS themselves are not an 

emission standard or limitation. Coalition Against Columbus Center v. New York, 967 F.2d 

764, 769 (2d Cir. 1992). States establish enforceable emission limits in SIPs or permits for 

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sources to assure that the NAAQS and increments are protected. Rule 33-15-02-07 contains no 

source-specific enforceable emissions limits. 

Therefore, the provisions in 33-15-02-07, which indicate that sources cannot cause or 

contribute to NAAQS violations, cannot be relied on to address the concerns we have with the 

maintenance provisions in ARM 33-15-01-13. 

See #4 below for suggested changes to address our concerns. 

2) Paragraph 2a. Malfunctions - allows sources to exceed emission limitations during 

malfunctions. The rule indicates that sources that are malfunctioning and expect to cause 

emissions of air contaminants in violation of "this article or other applicable rules and 

regulations" can continue to operate for up to ten days so long as the Department is notified. 

Also, the rule allows sources to operate for longer periods oftime during major equipment failure 

and potentially exceed emission limits during these extended periods. 

We view this paragraph as allowing an automatic exemption to emission limits. In EPA's 

view, it is not appropriate under the Clean Air Act to automatically allow sources to exceed 

emission limitations during malfunctions (or during startup, shutdown and maintenance) because 

SIPs must assure attainment and maintenance ofthe NAAQS and protection ofthe PSD 

increments at all times. For further discussion ofhow we view malfunctions, see the enclosed 

September 20, 1999 EPA memorandum from Steven A. Herman and Robert Perciasepe to 

Regional Administrators entitled "State hnplementation Plans: Policy Regarding Excess 

Emissions During Malfunctions, Startup, and Shutdown" and the April 27, 1977 and November 

8, 1977 Federal Register notices (cited previously). 

Also, see discussion in #1 regarding other provisions in North Dakota's rules that indicate 

that a source cannot cause or contribute to NAAQS violations. Finally, see # 4 below for 

suggested changes to address our concerns. 

3) Paragraph 3, Continuous emission monitoring system failures, we note, contains a 

director discretion provision. We will be addressing our concerns regarding director discretion 

provisions in a separate letter 

4) Suggested changes to 33-15-01-04 and 33-15-01-13 follow: 

33-15-01-13. Shutdown and malfunction of an installation - Requirement for notification. 

a. The Department could revise the existing rules to be purely rules that require notification 

when excess emissions occur: 

(i) Paragraph 1 of the rule should be deleted because it relates only to the continued 

operation of the source during scheduled maintenance on control equipment, something 

that is unnecessary and inappropriate. It should be replaced with a provision that 

states that all excess emissions are violations, regardless of cause. 

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(ii) Paragraph 2 of the rule should be changed. We would prefer to see notification for 

malfunctions expected to last less than 24 hours. Also, all language from "On receipt of 

this notification" until the start of the last sentence in 2.a should be stricken. Paragraph 

2.b can be retained. 

(iii) The Department may also want to include a general notification regarding conditions 

that caused or may cause a violation and specify items that sources must include in the 

notice to the department. 

b. The Department could revise the existing rules to be notification rules (as discussed above) 

that also contain enforcement discretion provisions for excess emissions due to malfunctions. 

An example of an enforcement discretion rule is the draft ofthe Wyoming rule enclosed. In a 

rule ofthis nature that refers to the Department's exercise of its enforcement discretion, you 

should also include a caveat indicating that a state decision not to pursue an enforcement 

action does not bar or affect citizen or EPA enforcement action. 

c. The Department could revise the existing rules to be notification rules (as discussed above) 

and also develop affirmative defense provisions for startups, shutdowns, and/or malfunctions 

as discussed in our September 1999 policy. Note, we do not interpret the Clean Air Act to 

permit us to approve affirmative defense provisions for routine maintenance. 

33-15-01-04. Definitions 

Regardless ofwhat option you select based on the above discussion, we also recommend 

that you add definitions for "excess emissions" and "malfunction" to the definition section of 

your regulations (33-15-01-04). We suggest the following definitions: The term "excess 

emissions" means an air emission level which exceeds any applicable emission limitation. The 

term "malfunction" means a sudden and unavoidable breakdown ofprocess or control equipment. 

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Variances 

33-15-01-07 

Although we did not discuss the issue of variances on our July 7, 2004 call, we have had 

and continue to have concerns with North Dakota's variance provisions that are approved into the 

SIP (33-15-01-07). EPA generally does not approve such provisions in SIPs because SIPs must 

assure attainment and maintenance of the NAAQS and protection ofPSD increments at all times 

and because variance provisions are inconsistent with sections 110(a) and 110(i) of the Clean Air 

Act. 

We request that the state delete the variance provisions from its rules and seek EPA 

approval of a SIP revision to remove the variance provisions from the SIP. In the alternative, the 

state could add a new paragraph 3 to the rule that would read as follows: 

3.	 All variances must be adopted and submitted to EPA as SIP revisions pursuant to 

section 110 of the Clean Air Act. No variance shall be effective until such SIP revision 

is approved by EPA. 

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