+(,121/,1(

Citation: 42 Fed. Reg. 58171 1977 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Sat Jun 16 13:13:10 2012

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from 

 uncorrected OCR text.
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 then in effect.

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

ROGER P. CR [G,

Deputy General Counsel.

[FR Do.7-32291 Filed 11-7-77;B:45 am]

(6560-01]

Title 40-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

Idaho SO. Control Strategy

AGENCY: U.S. Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: This rulemaking finalizes

regulations proposed on January 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:

Clark I. Gaulding, Chief, Air Programs Branch, Environmental Protection

Agency, Region X (MS 625), 1200 Sixth

Avenue, Seattle, Wash. 98101, 206-442-

1230.

SUPPL TARY INFORMATION:

In response to EPA's January 22, 1976, proposalof regulations which require the reporting of excess emissions to the Administrator, various comments have been

raised by the owner and operator of the

subject smelter. This notice discusses

those comments; further detail may be

obtained in the Agency's analysis of pub- lie comment (the "analysis"l'. Those

comments objected to the proposed reg- ulations because: (1) The proposal does

not grant an automatic exemption from

the emission limitations upon compliance-with the reporting requirements;.

(2) there is no exemption relating to

excess emissions resulting from the phasing in or out of process and control

equipment or from routine maintenance

of this equipment; (3) the enforcement

discretion/reporting concept is claimed

%The anaiys1s is incorporated herein by this reference and Is available for inspection 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 enacted August 7,1977, made certain changes In the treatment

of primary nonferrous smelters. Principally relevant to this rulemaking 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 of the Act Is now n place for imple- menting that policy. Under Section 406

of the 1977 Amendments, however, existng SIP provisions 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 to which this upset/malfunc- tion regulation applies. The Court's July 5, 1977, opinion stated that an upset pro- vision was a necessary corollary to the

principal regulation. For those reasons, and because the upset regulation pro- mulgated today does not by Itself Impose requirements inconsistent with the 1977

Amendments, EPA believes It proper to

proeed with this rulemaking. The

Agency has also advised the Court In the

Bunker Hill case that It intends to do

this and also to consider the principal regulation together with this upset regu- lation in the remand proceeding. With

respect to other smelters not in these circumstances, different treatment may be

appropriate.

DiscRaEzro vs AurozmAzc EEmIPrroN

The claim that an emission limitation

exemption should be automatic during periods of excess emissions due to startup, shutdown or malfunction is based on -the smelter's contention that to penalize an operation for emissions that are beyond the control of a prudent operator Is unreasonable. The Administrator

agrees that the imposition of a penalty for excess emissions caused by circumstances beyond the control of the operator would not be appropriate.

However, while the Administrator rec- ognizes that relief should be afforded

during unavoidable upset situations, it is

his view that the automatic granting of a regulatory exemption for these periods 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

2

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

J 7401 et seq. The Clean Air Act which vwa formerly claslfled to 42 U.S.C. 1 1857 et seq. has been transferred and is now claWfled 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 of the burden of proof placement,

to effectively block all Federal enforcement against the smelter. Finally, where

standards are being achieved through

the interim use of dispersion techniques

in combination with only a floor level of

constant controls, such as an acid plant, a provision exempting malfunction periods from applicable emission limitations

would In effect be condoning emissions

which exceed that floor level of constant

controls. While It is appropriate to forbear from enforcing where the malfunction is beyond the control of the source,

EPA believes It would be inconsistent

with the requirements of Sections I10, 119, 123, and 302(k) of the Act to permit, by automatic regulatory exemption, emission levels to exceed the constant

control floor level.

It is the Agency's position that in light

of the enforcement mperatives of Sections 110 and 119 of the Act the better

approach Js to place the burden of proving the existence of an 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 and upsets beyond his rea- sonable control prior to imposition of

any administrative or judicial liability.

The enforcement discretion upon which

this approach Is based will be exercised as described below.

Upon receipt of the smelter's submission of the report of excess emissions re- quired under Section 52.676(b) (3) (v) 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 district court

rulings. After the issuance of the notice, the Administtator will consider (in addition to the report required by the regulations) 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 the EPA in a timely fashion. This information will be used in evaluating the cause of the violation, its seriousness,

and any good faith efforts of the owner

FEDERAL REGISTER, VOL 42, NO. 215--TUESDAY, NOVEMBER 8, 1977

58171

HeinOnline -- 42 Fed. Reg. 58171 1977
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 of the circumstances

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 of such emissions;

(4) All possible steps were taken to minimize 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 or maintenance.

If each of these determinations is af-

-firmative in the opinion of the Agency,

it would be concluded that no 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

any further 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 of better operating and maintenance procedures.

In sum, it is the Agency's view that

the approach reflected in this regulation,

which together with the floor level 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

in The Bunker HiU Company v. EPA (No.

75-3670).

PHASING IN AND OuT or EQuIPLSENT

For the reasons set forth in the Agen-"

cy's analysis of public comment, the Administrator 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 the process and. air

pollution control equil~ment. Accordingly, the. Administrator concludes that it

is reasonable to expect that the smelter

will not exceed emission limitations 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.

AxruAL AcID PLArT RouTINE

MAXNTENANCE

The proposed 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

caused by "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 to use 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 the discretion of a smelter operator. Through proper planning, routine

maintenance on acid plants can be

scheduled to coincide with maintenance on production equipment or other smelter

shutdowns. As such, the control equipment is always available when the equip-'

ment it serves is operational. Moreover,

-since any industry, including the smelting industry7,ha the ability to build and

maintain inventory, the aspect of planning-routinemaintenance during periods

of smeltershutdown should not be a seri- ous concern to the smelter 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. In cases where Agency policies 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 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 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. 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

scheduled maintenance under both situations similarly.

GAS STnEA= 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 Is now 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, even if ground 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,

FEDERAL REGISTER& VOL 42, NO. 215-TUESDAY, NOVEM1ER 8, 1977

58172

HeinOnline -- 42 Fed. Reg. 58172 1977
RULES AND REGULATIONS

emission levels which exceed the RACT

floor. Accordingly, in evaluating the

SIPs in question, EPA will (as it has done

in this rulemaking) 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 SIP is on its face similar to

the Federal regulation being promulgated today for the Bunker 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

exempt in advance from possible enforcement action excess emissions due to

start-up, shutdown or scheduled maintenance. Although in many respects

these regulations are similar; ie., by their

terms no exemption is granted in advance, they do differ in the significant

-aspect that the Idaho malfunction provi-.

sion have the potential for permitting

violations of NAAQS. In addition, the

Idaho regulations lack specific criteria

for the reports that are to be filed in conjunction with claimed malfunctions. - In the absence of reporting requirements of the variety required by the regulation being promulgated tday, the reviewing official cannot adequately gage

whether a given excursion episode results

from poor maintenance procedures, or

from an incident that is truly beyond the

control of the source operator. Since the

central theme of the regulation mechanism is a showing that sound maintenance procedures have been responsibly employed, the failure of the State

regulation to providea mnechanism by

which such judgment can be made renders the regulation unacceptable. The

State regulation is also unacceptable in

that a source utilizing a supplementary

control system is not specifically held ac- countable for exceedences of NAAQS

(within its designated liability area)

during unavoidable episodes of such ex- cess emissions.

For the reasons set forth above the

Idaho regulation must be disapproved

despite the various common characteristics that 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 regulation in the very

near future.

OUTLINE OF REGULATIONS

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

the applicable emissions standards and

establish a procedure 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 was never 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. 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 excesm emL:sions; (3)- the Identity of the procezs

* 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 a recurrence and to limit 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 liability area nor precludes the Administrator from initiating at any time

any appropriate actions under Sections

113, 119 and 303 of the Act.

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 at the addrezs

listed at the beginning of this notice.

This rulemaking will become effective

December 8, 1977. Authorization: Sections 110, 113, 119, 123, 301, 3020:) and

303 of the Clean Air Act as amended (42

U.S.C. 7410, 7413, 7419, 7423, 7601. 7602,

and 7603).

Dated: October 28, 1977.

B.tnP=L BLuSI,

Acting Administrator.

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 emission standards: Reporting excess emissions during

periods of start-up, shutdown and malJunction.

(1i) The owner(s) or operator(s) of the

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 Air Act or Part 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) of this section. The averaging time and test procedures for determining such exce-s emissions shall be as specificd as part of

the applicable emilon limitation.

(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

poor maintenance, 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 in of process equipment.

(d) The term "shfitdovrn" means the

ccsation of operation of any air pollution control equipment or process equipment for any purpose, except routine

phasing out of process equipment.

(e) The term "violation" means any

incident of exces emissions, regdrdles

of the circum-tances of the 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) or operator(s) of the subject smelt- er may submit the following data in

order to assist the Administrator in carrying out his duties under Section 113

of the Clean Air Act.

(b) Each submisslon shall include, as a minimum:

(Wi The Identity of the stack and, or

other enislon points where the excezs emlssions occurred; and

(if) The magnitude of the excezs emissions exprezsed in the units of the applicable 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 ambient SO- concentrations which occurred

or which were expected to occur during

the period; and

(vif) If the excess emissions were the

result of a malfunction, the steps taken

to remedy the malfunction and the steps

taken or planned to prevent the recurrence of such malfunction; and

(vii) The steps taken to limit the 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 right to submit data information or reports to the Administrator, including but not limited to the information specified in subparagraph (6)

(i11) (b) above, n order to assist the Administator in carrying out his statutory

responsibilities under Sections 113 and

303 of the Clean Air Act.

(v) The submittal of information pursuant to subparagraphs (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

58173

HeinOnline -- 42 Fed. Reg. 58173 1977