### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8 999 18TH STREET

- SUITE 300

DENVER, CO 80202-2466 Phone 800-227-8917 http://www.epa.gov/region08 

## JAN 30 2003

Ref: 8P-AR

Dan Olson, Administrator Air Quality Division Department ofEnvironmental Quality 

### 122 W. 25 U1 

### St. Cheyenne, 

### WY 82002

# Dear~n: OnNovember 

### 1,2002, EPA Administrator Whitman issued an order responding to the Buffalo Committee to Stop Sawmill Burning request that the Administrator object to the issuance ofWyoming's Title

### V operating permit for Buckingham Lumber Company. Among other things, 

### this order required the Regional Office to complete 

### a substantive review, in consultation with the State ofWyoming, ofWyoming Air Quality Standards and Regulations, Section 19, 

### entitled "Abnormal Conditions and EquipmentMalfunction." The Regional Office was ordered to complete this review 

### within ninety (90) 

### days ofthe date ofthe Order, and 

### to initiate necessary corrective measures, if**any~** 

### as soon 

### as practicable thereafter. Enclosure 

### I to this letter contains EPA's substantive review ofSection 19, entitled "Abnormal Conditions andEquipment· Malfunction."

Wehave discussed

# our review ofSection 19 with you and possible changes you might be willingto bring forward to the Environmental Quality Council to address our concerns. We believe these changes (see 

### draft changes 

### in Enclosure IT), 

### ifadopted and submitted, would address our concerns and thatwe could proposeto approve these draft changes as arevision to the federally approved SIP. Werequest that within the next 30 days, you provide for our review your anticipated schedule for presenting draft changes to theEnvironmental Quality Council and when we could expect any adopted changes to be 

### submitted to us for approval. We believe it would be to ourmutual benefit to resolve this matter as soon as possible.

fA**'-~ t=>ri"t~rf**  nn**P-.r",..I~rf** P.Ano,.**--------------~--** 

## -----_
.We appreciate your willingnessto discuss this issue with us and initiate changes to this rule to address our concerns. Please contact me at (303) 312-6005 orhaveyour staffcontact 

### Carl Daly at (303) 312-6416 

### ifyou have any questions regarding this letter.

Enclosures



### cc: Administrator Whitman The Buffalo Committee to Stop Sawmill 

### Burning Reed larsEnclosure I

Review ofWyoming's Malfunction Rule



### Our records indicate that the following rule was adopted by the State on January 

### 22) 1972) submitted as a SIP revision on January 

### 28. 1972 and approved into the federal SIP on May 

### 31) 1972 (37 FR 

### 10842):

Section 19. Abnonnal Conditions and Equipment Malfunction.

a. Emissions in exce$S ofestablished regulation limits as a direct result ofmalfunction or abnormal conditions or breakdown ofaprocess) control orrelated operating equipment beyond the control ofthe person or finn owning or operating such equipment shall110t be deemed to be in violation ofsuch regulations) ifthe Division is advised ofthe circumstances within 

### 24 how's ofsuch malfunction and a cOlTective program acceptable to the Division is**fumished~** Background:


### Our interpretation ofthe Clean AirAct regarding excess emissions during startup, shutdown and malfunctions is that they must be treated 

### as violations ofrelevant emissiop limitations. Generally, since SIPs must provide for attainment 

### and maintenance ofthe national ambient air quality standards (NAAQS) and the achievement ofthe prevention ofsignificant i deterioration ofair 

### quality (PSD) increments, all periods ofexcess emissions must be considered 

### ! violations. (See the enclosed September 20.1999 EPA memorandum from Steven A. Herman and Robert Perciasepeto Regional Administrators entitled "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown."). Accordingly, any provision that allows for an automatic exemption for excess emissions is prohibited. The appropriate mechanism for excusing excess emissions in this situation is through the exercise of enforcement discretion.

However, our September 1999 policy provide"s that EPA can approve a SIP revision that creates an affimlative defense to claims for penalties in enforcement actions regarding excess emissions caused by malfunctions or during startup and shutdown so long as the SIP establishes limitations consistent with the 1999 policy"

Review: i 1, Section 

### 19 is inconsistent with the Clean Air Act because Section 

### 19 indicates that 

### I "emissions in excess ofestablished regulation limits

... shall not be deemed to be in violation of 

## I such regulations." We believe aU excess emissions must be considered violations ofre 

### 2B i emission limitations. "

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- - - - -**-'.',~--** -**~£~-**2. This rule makes it appear that only the Division can determine whether a violation has or has not occurred based on whether a corrective program acceptable to the Division is furnished. As stated in our September 20, 1999 policy, we believe aprovision like this, which appears to give the State unilateral authority to bar EPA's or citizens' ability to enforce applicable requirements. is inconsistent with the regulatory scheme established in Title I ofthe Clean Air Act. The State may decide not to pursue enforcement ofa violation, but this decision cannot preclude an enforcement action brought by EPA or citizens.

3. We have several other concerns with Section 19: (a) the term "abnormal conditions" is vague and could extend to conditions other than malfunctions, startup and shutdown; (b) there appears to 

### be no requirement that the source demonstrate that the excess emissions were unavoidable; and (c) it appears that the source is completely absolved ifthe Division accepts the source's corrective action plan.

### · Enclosure II

Draft Changes to Rule· Abnormal Conditions and Equipment Malfunction


### Malfunctions, Enforcement Discretion

(A) Regardless ofcause, emissions in excess ofestablished emissions limits are considered violations. However, for any given violation, the Division may elect not to pursue enforcement. In exercising its enforcement discretion, the Division shall consider whether the excess emissions resulted from an unavoidable**malfunctio~.** 

### Accordingly, any source believing that its excess emissions resulted from an unavoidable malfunction shall promptly notify the Division within 24 hours ofthe malfunction via telephone, electronic mail, fax, or other similar method. Adetailed description ofthe circumstances ofthe incident as described in part (B) ofthis section, including a con-ective program directed at preventing future such incidents must be submitted within]4 days ofthe event. The Division will evaluate, on a case by case basis, the infoImation submitted and determine whether the incident qualifIes for enforcement discretion under this section. The Administrator may extend such time period for the submission ofthe malfunction report for cause. (B) 

### In its malfunction report, the source shall include any relevant evidence, including, but not necessarily limited to, evidence that (1) there was a sudden, unavoidable breakdown oftechnology, beyond the control ofthe owner or operator; (2) the excess emissions could not have been avoided by better design, operation, or maintenance; (3) to the maximum extent practicable, the source maintained and operated the air pollution control equipment and process equipment in a mamler consistent with good practice for minimizing emissions; (4) any necessary repairs were made as quickly as practicable, using**off~shift** 

### labor and oveIiime as needed and possible; (5) the amount and duration of the excess emissions, includingany bypass, were minimized to the maximum extent practicable; (6) all possible steps were taken to minimize the impact ofthe excess emissions on ambient air quality; and (7) the excess emissions are not part ofa rec.urring, pattern indicative ofinadequate design, operation, or maintenance.
(C) The burden ofproofis on the owner or operator ofthe source to provide sufficient infonnation to demonstrate that an unavoidable malfunction occurred.amount and duration ofthe excess emissions, including any bypass, were minimized to the maximum extentpracticable; (6) all possible steps were taken to minimize the impact ofthe
excess emissions on ambient air quality; and (7) the excess emissions are not part ofa recurring pattern indicative ofinadequate design, operation. or maintenance.

/decisionby the Division not to pursue enforcement ofa violation shall in no way affect the**~lity** ofEPA or citizens to pursue enforcement ofsuch violation under the Clean Air Act.



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