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 of Environmental Quality 

122 W. 25 U1 St. 

Cheyenne, WY 82002 

Dear~n:

On November 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 

of Wyoming'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 of Wyoming, of Wyoming Air Quality Standards and Regulations, Section 19, entitled 

"Abnormal Conditions and Equipment Malfunction." The Regional Office was ordered to 

complete this review within ninety (90) days of the date of the Order, and to initiate necessary 

corrective measures, if any~ as soon as practicable thereafter. Enclosure I to this letter contains 

EPA's substantive review of Section 19, entitled "Abnormal Conditions and Equipment· 

Malfunction." 

We have discussed our review of Section 19 with you and possible changes you might be 

willing to 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 that we could propose to approve these draft changes as a revision to 

the federally approved SIP. We request that within the next 30 days, you provide for our review 

your anticipated schedule for presenting draft changes to the Environmental Quality Council and 

when we could expect any adopted changes to be submitted to us for approval. We believe it 

would be to our mutual benefit to resolve this matter as soon as possible. 

fA 

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

--------------~------- . 
We appreciate your willingness to discuss this issue with us and initiate changes to this 

rule to address our concerns. Please contact me at (303) 312-6005 or have your staff contact 

Carl Daly at (303) 312-6416 if you have any questions regarding this letter. 

Enclosures 

cc: Administrator Whitman 

The Buffalo Committee to Stop Sawmill Burning 

Reed lars 
Enclosure I 

Review of Wyoming'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 of established regulation limits as a direct result ofmalfunction or 

abnormal conditions or breakdown ofa process) control or related operating equipment 

beyond the control of the person or finn owning or operating such equipment shall110t be 

deemed to be in violation of such regulations) if the Division is advised of the 

circumstances within 24 how's of such malfunction and a cOlTective program acceptable 

to the Division is fumished~

Background: 

Our interpretation ofthe Clean Air Act regarding excess emissions during startup,
 

shutdown and malfunctions is that they must be treated as violations of relevant emissiop
 

limitations. Generally, since SIPs must provide for attainment and maintenance of the national
 

ambient air quality standards (NAAQS) and the achievement of the prevention of significant
 i 

deterioration of air quality (PSD) increments, all periods of excess 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 of established regulation limits ... shall not be deemed to be in violation of I 

such regulations." We believe aU excess emissions must be considered violations of re 2B i 

emission limitations. " 1~'tSL 2!}.l{Jif­ " '\;~.. %.... I, 

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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 a provision 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 of the Clean Air 

Act. The State may decide not to pursue enforcement of a 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 if the Division accepts the 

source's corrective action plan. 
· Enclosure II 

Draft Changes to Rule· Abnormal Conditions and Equipment Malfunction 

Malfunctions, Enforcement Discretion 

(A) Regardless of cause, emissions in excess of established emissions limi ts 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 of the malfunction via telephone, 

electronic mail, fax, or other similar method. A detailed description of the circumstances 

of the incident as described in part (B) of this section, including a con-ective program 

directed at preventing future such incidents must be submitted within] 4 days of the 

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 of the 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 of technology, beyond the control of the 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 of the excess 

emissions on ambient air quality; and (7) the excess emissions are not part of a rec.urring, 

pattern indicative of inadequate design, operation, or maintenance. 

(C) The burden of proof is on the owner or operator of the 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 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 of a recurring 

pattern indicative of inadequate design, operation. or maintenance. 

/decision by the Division not to pursue enforcement of a violation shall in no way affect the 

~lityofEPA or citizens to pursue enforcement ofsuch violation under the Clean Air Act. 

I t (