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Citation: 42 Fed. Reg. 58171 1977

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### RULES AND REGULATIONS

service. The establishment of such fees and charges shall be reasonably con- sistent with the methods employed In establishing rates and fees for postal service!l thenineffect.

(39 U.S.C. 401(2), 404(6), 411.)

ROGER P. CR [G, DeputyGeneralCounsel.
[FRDo.7-32291 Filed 11-7-77;B:45 am]


### (6560-01] Title40-Protection of Environment

CHAPTER I-ENVIRONMENTAL PROTECTION AGENCY SUBCHAPTER C-AIR PROGRAMS [F L 812-6] PART 52-APPROVAL AND PROMULGA. TION OF IMPLEMENTATION PLANS IdahoSO. Control Strategy AGENCY: U.S. Environmental ProtectionAgency. ACTION: Finalrule. SUMMARY: This rulemaking finalizes regulations proposedonJanuary 22,1976, relating to excess emissions due to startup, shutdown, or malfunction from the Bunker Hill Co. smelter located in Kellogg,Idaho. KETFECTIVE DATE: This rulemaking will become effective December 8, 1977. ADDRESSES: Environmental Protection Agency, 1200 Sixth Avenue, Seattle, Wash. 98101. Environmental Protection Agency, Public Information Reference Unit, Room 2922, 401 M Street SW., Washington, D.C.20460. FOR FURTHER INFORMATION CONTACT:

ClarkI. Gaulding, Chief,Air Programs Branch, Environmental Protection Agency,RegionX (MS 625), 1200 Sixth Avenue, Seattle,Wash. 98101, 206-442- 1230. SUPPL TARY INFORMATION: In response to EPA's January 22, 1976, proposalofregulationswhich requirethe reporting of excess emissions to the Administrator,various commentshavebeen raised by the owner and operator of the subject smelter. This notice discusses those comments; further detail may be obtained intheAgency's analysis ofpub- lie comment (the "analysis"l'. Those comments objected to the proposed reg- ulations because: (1) Theproposal does not grant an automatic exemption from the emission limitations upon compliance-with the reporting requirements;. (2) there is no exemption relating to

excess emissionsresultingfromthephasing in or out of process and control equipment or fromroutine maintenance of this equipment; (3) the enforcement discretion/reporting concept is claimed

%The anaiys1s is incorporated herein by this reference and Is available forinspection at-the Agenc's Seattle ofMce to be inconsistent with the Agency's alleged approval of State malfunction provisions which exempt sources from applicabla emission limitations during periods of excess emissions.

The Clean Air Act Amendments of 1977- which were enactedAugust 7,1977, made certain changes In the treatment ofprimary nonferrous smelters. Principally relevantto thisrulemaking are the provisions of new Sections 119, 123, and 302(k). These provisions essentially en- dorse EPA's existing policy for the interim control of nonferrous smelters but
remove the implementation of that policy from the State TInplementatiOn Plan (SIP) framework. A new mechanism "primary nonferrous smelter orders", developed in accordance with §119 oftheActIsnow nplaceforimple- menting that policy. Under Section 406 ofthe 1977Amendments, however, existng SIPprovisions and related litigation
are preserved.

In the pending case of The Bunker Hil Company v. EPA (9th 

### CMr., No. 75- 3670), the Court has remanded to EPA for further proceedings the principal regulation towhich this upset/malfunc- tion regulation applies. The Court's July 5, 1977, opinion stated thatan upsetpro- vision was a necessary corollary to the principal regulation. For those reasons, and because the upset regulation pro- mulgated today doesnotbyItself Impose requirements inconsistent with the 1977 Amendments, EPA believes It proper to proeed with this rulemaking. The Agency has also advised the CourtIn the Bunker Hill case that It intends to do this and also to consider the principal regulation together with this upsetregu- lation in the remand proceeding. With respect toothersmeltersnotin these circumstances, different treatment may be appropriate.

DiscRaEzro vsAurozmAzc EEmIPrroN The claim that an emissionlimitation exemption should be automatic during periods of excess emissions due to startup, shutdown ormalfunction isbased on -thesmelter's contention that topenalize
an operation for emissions that are beyond the control ofa prudent operator Is unreasonable. The Administrator agrees that the imposition of a penalty for excess emissions caused by circumstances beyond the control ofthe operator would not be appropriate.

However, while theAdministrator rec- ognizes that relief should be afforded duringunavoidable upset situations, it is his view that the automatic granting of
aregulatory exemption for theseperiods of excess emissions is not the optimal remedy. First, such a regulation would diminish the smelter's Incentive to develop better operating and maintenance procedures by encouraging the smelter to claim, after every period of excess

2Pub. L. 95-95, 91 Stat. 0W, 42 U.S.C. J

7401 et seq. The Clean Air Act which vwa formerly claslfled to 42U.S.C. 11857 et 

### seq. hasbeen transferred and is nowclaWfled as above. emissions, that an exemption s war- ranted. Second, if the operator of the smelter were so inclined, It would be relativelz easy for the Company as a result ofthe burden ofproof placement, to effectively block all Federal enforcement againstthe smelter.Finally, where standards are being achieved through theinterim use of dispersion techniques in combination with onlya floorlevel of constant controls, such as an acid plant,

aprovision exempting malfunction periods from applicable emission limitations would In effect be condoning emissions which exceed thatfloorlevel ofconstant controls. While It is appropriate to forbearfrom enforcingwhere the malfunctionis beyond the control ofthe source, EPA believes It would be inconsistent with the requirements of Sections I10, 119, 123, and302(k) oftheActtopermit, by automatic regulatory exemption, emission levels to exceed the constant control floor level.

It is theAgency'spositionthat inlight of the enforcement mperatives of Sections 110 and 119 of the Act the better approachJsto place the burden ofprovingthe existence ofan unavoidable malfunction on the source. The Agency believes the procedure best-suited to ac- complishing the goal of excusing un- avoidable malfunctions without undermining the impetus towards sound op- erating and maintenance procedures is to allow the source to show, after an episode of excess emissions, that the violation was due to an unavoidable malfunction. Whether further enforcement action would follow such a notice would be a matter of enforcement discretion resulting from an evaluation of that showing.

Retention of discretion under this ap- proach not only encourages the con- tinued improvement In the operation of

a smelter and Its attendant control equipment but also affords an ample opportunity (under the protection of Section 113 of the Act) for the owner and operator of a smelter to Identify malfunctions andupsets beyondhisrea- sonable control prior to imposition of any administrative or judicial liability. The enforcement discretion upon which this approach Is based will be exercised
asdescribed below.

Upon receipt ofthe smelter's submission ofthe report of excess emissions re- quired under Section 52.676(b) (3) (v) of this subpart,aNotice ofViolation willbe issued. This procedure is consistentwith thedecisionin WisconsinEnvironmental Decadev. Train,395 F. Supp. 313 (W.D. Wis., 1975), and other district court rulings. After the issuance ofthenotice, the Administtator will consider (in additiontothe reportrequiredbytheregulations) any information developed by the source which more fully explains the circumstances of the violation and the source's actions in response thereto. To be considered by the Administrator any such information must be provided to theEPA in a timely fashion. Thisinformation will be used in evaluating the
cause of the violation, its seriousness, and any good faith efforts ofthe owner

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### RULES AND REGULATIONS

or operator of the smelter to comply (e.g. the degree to which proper mainte-

nance procedures and emission control techniques have been employed) and in determining whether further

.Agency action is appropriate.

In his assessment ofthecircumstances of the emission of pollutants in excess 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 practice for inimlzing emissions;

(2) Repairs were made in an expeditious fashion when the smelter operator knows

or should have known that applicable emision limitations were being exceeded Offshift labor and overtime must have been utilized to insure that such repairs were made as expeditiously as possible;

(3) The amount and duration of the excess.emlssions (including acid plant bypass)

were minimized to the maximum extent practicable during periods ofsuch emissions; (4) All possible steps were taken tominimize the impact of the excess emissions on ambient air quality;, and

(5) The excess emissions are not part of arecurring pattern indicative of inadequate design, operation ormaintenance.

If each of these determinations is af- -firmative in the opinion of the Agency, it wouldbe concluded thatno additional

course of action could reasonably have been expected of the owner or operator. Accordingly, the Administrator would not follow the Notice of Violation with anyfurther enforcement actions.

This regulation will not result in the imposition of any penalty on the Company for genuinely unavoidable malfunctions or upsets, and therefore will not result in the mposition, of technologically infeasible requirements on the smelter. Moreover, the regulations are enforceable and designed to encourage the continued development ofbetter operating and maintenance procedures.

In sum, it is the Agency's view that theapproachreflected in thisregulation, which together with thefloorlevel emission limitations already promulgated merely requires the Bunker Hill smelter to utilize good operating and mainte-

nance procedures and,control it, emissions at a level equivalent to,a well designed sulfuric acid plant. This is con- sistent with both Section 119 of the Act, and the concerns expressed by the UZ. Court of Appeals for the Ninth Circuit inTheBunkerHiUCompanyv.EPA (No. 75-3670).

PHASING IN AND OuT or EQuIPLSENT For the reasons set forthin the Agen-" cy's analysis of public comment, theAdministrator finds that routine phasing in and out of process equipment is part of the normal operations of a smel- ,ter and should be accounted for in the design and Implementation of the oper- ating procedure for theprocess and. air pollution control equil~ment. Accordingly, the.Administrator concludes that it is reasonable to expect that the smelter willnotexceed emission limitations during such periods. If excess emissions should occur during routine phasing in andout ofprocess equipment, the excess emissions willnot be considered as malfunctions unless the source can demonstrate that such emissions were caused by a breakdown in the process equipment. AxruAL AcID PLArT RouTINE MAXNTENANCE Theproposed upset regulation did not address periods of acid plant routine maintenance In the malfunction provisions. This is consistent with the basic 'purpose of the proposed regulation, which was to address excess emissions causedby "sudden and unavoidable failure" of process or control equipment. Allowing a smelter to operate independent of the-emission control equipment during periods when the control equipment is shut down for routine mainte-

nance would be inconsistent with Sections 110, 119, and 302(k) of the Act. These sections require that prior tQ allowing a smelter touse dispersion techniques to attain and maintain national ambient air quality standards (NAAQSY, the Agency must require it to utilize all available controls.

Permitting a source to employ disperLion techniques to attain and maintain national standards without constant controls during periods of such routine maintenance is contrary to- these re- quirements. Thus, routine maintenance

can be considered a- predictable event, which can be scheduled to a-large ex- tent at thediscretion of a smelter operator. Through proper planning, routine maintenance on acid plants can be scheduled to coincide with maintenance

onproduction equipment orothersmelter shutdowns. As such, the control equipment is always available when the equip-' ment it serves is operational. Moreover, -sinceany industry, including the smelting industry7,ha the ability to build and maintain inventory,the aspect ofplanning-routinemaintenance during periods ofsmeltershutdown shouldnotbe aseri-

ous concern to thesmelter operator.This is more fully'discussed in the analysis. Consequently, no excess emission will be allowed during periods of any routine maintenance.

In addition, permitting excess emissions during periods of annual acid plant routine maintenance would be inconsistent with the Agency's approach to new source performance standards (NSPS), which does not permit excess emissions during periods -of scheduled mainte-

nance.Incases whereAgency policiesfor

new sources differ from those for existingsources, thepolicyfor existingsources is generally more stringent. This is due

- to the fact that the Clean Air Act re-

quires 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 weremore 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 anexistIng smelting site. Moreover, problems as- soclated with scheduled annual acid plant maintenance are essentially the

same whether the acid plant is needed to meet NSPS or NAAQS. Therefore, the Agency believes it appropriate to treat scheduledmaintenance under both situations similarly.
GASSTnEA= BYPASS 

### The emission limitations promulgated for the Bunker Hill Company contain a provision which addresses treatment of gas streams. Specifically, all SO, gas streams discharged from the zinc plant roasters and certain gases discharged from the lead sintering machine shall at all times be processed through an SOa removal facility. Accordingly, whenever those gas streams are not processed through such a facility their release to the atmosphere shall be considered ex-
cess emissions. STATE MALFUNCTION PrOVISIONS
Bunker Hill has argued that the aPproach taken in these regulations Is inconsistent with various malfunction regulations approved by EPA as part of the SIPs submitted by several western States. In response, It should be pointed out that the regulations contained in this rule serve to coordinate the treatment of excess emissions with the SOa limitations EPA promulgated for the Bunker Hill smelter on November 19, 1975. To the extent inconsistencies are present, the Agency Isnow undertaking

a review of all State malfunction regu- lations. Should the review indicate that the regulations do not satisfy the re- quirements of Sections 110 and 119 of the Act, the affected States will be re- quested to take corrective action. In re- viewing these regulations the Agency will focus on the same considerations that are central to the rulemaking pro- mulgated herein.

Thus, if, In reviewing the involved State regulations, it becomes clear that they have the potential for permitting violations of the NAAQS by exempting malfunction episodes from applicable emission limitations-, those malfunction provisions will be disapproved on the grounds that they interfere with attainment of the national standards. Where ambient standards are being achieved by virtue of an interim supplementary control system, a tall stack and reason- ably available control technology (RACT), an SIP provision exempting malfunction periods from applicable emission limitations, evenifground level concentrations may not exceed the NAAQS, would have the effect of con- doning emissions which exceed the RACT emission level While penalties should not be imposed where the malfunction is beyond the control of the
source, EPA believes that It would be inappropriate to.condone, by exemption,

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### RULES AND REGULATIONS

emission levels which exceed the RACT floor. Accordingly, in evaluating the SIPsinquestion,EPAwill (asit hasdone in thisrulemaking) regard as unacceptable any malfunction provision which automatically excuses emission levels in

excess of the RACT floor during malfunction conditions.

The State of Idaho regulation con- tained in the SIPison itsface similarto the Federal regulation being promulgated today for theBunker Hill facility.' The State regulation requires that a

source report any occurrence of excess emissions due to a 

### malfunction to the State agency and it does not specifically exemptinadvancefrompossible enforcement action excess emissions due to start-up, shutdown or scheduled maintenance. Although in many respects these regulations are similar; ie.,bytheir
terms no exemption is granted in advance, they do differ in the significant -aspect thattheIdahomalfunction provi-.

sion have the potential for permitting violations of NAAQS. In addition, the Idaho regulations lack specific criteria forthereports thataretobe filedinconjunctionwith claimedmalfunctions.

- In the absence of reporting requirements ofthe variety requiredby theregulation being promulgated tday,thereviewing official cannot adequately gage whether agiven excursion episoderesults from poor maintenance procedures, or from anincidentthat istrulybeyond the control ofthe source operator. Since the central theme ofthe regulation mechanism is a showing that sound maintenance procedures have been responsibly employed, the failure of the State regulation to providea mnechanism by which suchjudgment can be made renders the regulation unacceptable. The State regulation is also unacceptable in that a source utilizing a supplementary control system isnot specificallyheld ac- countable for exceedences of NAAQS (within its designated liability area) during unavoidable episodes ofsuch ex-
cessemissions.

For the reasons set forth above the Idaho regulation must be disapproved despite the various common characteristicsthat it does share with the EPA regulations promulgated today. Consistent with the Agency's ongoing nationwide review of State malfunction regulations,

as previously noted in this rule, 'EPA's intent is to propose disapproval of the Idaho malfunction regulationin thevery
near future.

OUTLINE OF REGULATIONS Briefly, the regulations define all periods of excess emissions as violations of the applicable emissions standards and establish aprocedure whereby the owner
or operator of the Bunker Hill smelter may supply additional information to 

### the Administrator. Although the InforThe State regulation bas been qualified by a-consent decree but this decree wasnever submitted to EPA as a revision to the SIP. This qualification appears to have interJected automatic exemption into administration of the regulation. matlon to be supplied is not limited in scope. theregulation does require that if Information isgiven to theAgency, It include: (1) Identification of the emission points; (2) the magnitude of the excesm emL:sions; (3)-theIdentity oftheprocezs * 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 to prevent arecurrence and tolimit the

excess emissions. Finally, nothing in the regulation relieves the source of Its obligation to protect national ambient air quality, standards for SO in its designated liabilityareanorprecludes theAdministrator from initiating at any time any appropriate actions under Sections 113, 119 and 303 oftheAct.

A copy of Bunker Hill's comments on EPA's proposed regulations (and as mentioned, EPA's analysis of same) are available for public review atthe addrezs listed at thebeginning ofthisnotice.

This rulemaking will become effective December 8, 1977. Authorization: Sections 110, 113, 119, 123, 301, 3020:) and 303 ofthe Clean AirAct as amended (42 U.S.C. 7410, 7413, 7419, 7423, 7601. 7602, and 7603).

Dated: October28, 1977. 

### B.tnP=L BLuSI, ActingAdministrator.
Part 52 of Chapter I. Title 40 of the Code of Federal Regulatons is amended

as follows: Subpart N-Idaho

In 52.67, paragraph (b) is amended by adding subparagraph (0) as follows: §52.676 Control Strategy: Sulfur ox- ides--Eastern Wallington/Nortlhern Idaho Interstate Region.

(b) 1: (6) Compliance with emissionstandards:Reportingexcess emissionsduring periodsof start-up, shutdown andmalJunction.

(1i)The owner(s) or operator(s) ofthe smelter subject to this ection are subJect to the provisions of this subparagraph in regard to excess emisslonli during periods of start-up, shutdown and malfunction.

(H) All terms used in this paragraph but not specifically defined below shall have the meaning given them in the Clean AirAct orPart 51, 52 or 60 of this chapter. (a) The term "excess emissions"

means an emission rate which exceeds any applicable emission limitation prescribed by paragraph (b) (1) ofthis section. The averaging time and test procedures for determining such exce-s emissions shall be as specificd aspart of theapplicable emilonlimitation.

(b) 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 poormaintenance, careless operation, or any other preventable upset condition

or preventable equipment breakdown shall not be considered malfunctions. (c) The term "start-up" means the setting Into operation of any air pollution control equipment or process equipment for any purposes, except routine phasing inofprocess equipment. (d) The term "shfitdovrn" means the ccsation of operation of any air pollution control equipment orprocess equipment for any purpose, except routine phasing out ofprocess equipment. (e) The term "violation" means any incident of exces emissions, regdrdles of the circum-tances ofthe occurrence. (Ill) 

### (a) In the case of excess emisdons from the smelter subject to this -ection for which the Administrator has issued a Notice of Violation, the owner(s) oroperator(s) ofthesubjectsmelt-

er may submit the following data in order to assist the Administrator in carrying out his duties under Section 113 oftheCleanAirAct. (b) Each submisslon shall include, as
aminimum:

(Wi The Identity of the stack and,or other enislon points where the excezs emlssions occurred; and (if) Themagnitude oftheexcezs emissions exprezsed inthe units oftheapplicable emission limitation and the operating data and calculations used in determing the magnitude of the excess emissions; and (ii) The time and duration of the

exces emissions; and iv) The identity of the equipment cauing the excess emissions; and (v)The nature and cause Cf such

excess eniz-sons; and (W) The measured or estimated ambientSO- concentrations which occurred

or which were expected to occur during theperiod; and (vif) If the excess emissions were the result ofa malfunction, the steps taken toremedy the malfunction andthesteps taken or planned to prevent the recurrence of such malfunction; and (vii) The steps taken to limitthe ex-
cezs emissions and the resultant impact

on ambient air quality; and

(ix) 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. $ivJ At any time, the owner(s) or operator(s) of the smelter subject to this 

### section has the rightto submit data information orreports to the Administrator, including but not limited to the information specified in subparagraph (6) (i11) (b) above, n order to assist theAdministator in carryingout hisstatutory responsibilities under Sections 113 and 303 ofthe CleanAirAct.

(v) The submittal ofinformation pursuant tosubparagraphs (6) (Ill) and (iv) of this paragraph shall be used by the Administrator in determining the .erfFEDERAL REGISTER, VOL 42, NO. 215-TUESDAY, NOVEMBER 8, 1977 

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