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[Federal Register Volume 62, Number 54 (Thursday, March 20, 1997)]
[Proposed Rules]
[Pages 13357-13359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7100]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MI58-01-7266; FRL-5711-2]

Approval and Promulgation of State Implementation Plan; Michigan

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: On May 16, 1996, the Michigan Department of Environmental 
Quality (MDEQ) submitted a revision to the State's New Source Review 
State Implementation Plan. As part of this submittal, the State 
included start-up, shutdown and malfunction rules: R 336.1912 Abnormal 
conditions, start-up, shutdown, and malfunction of a source, process, 
or process equipment, operating, notification, and reporting 
requirements; R 336.1913 Malfunction protection, applicability, 
prohibitions, conditions, and standards; and R 336.1914 Start-up and 
shutdown protection; applicability, prohibitions, conditions and 
standards. The Environmental Protection Agency (EPA) is proposing to 
disapprove these start-up, shutdown and malfunction regulations because 
they are not consistent with the Clean Air Act and applicable EPA 
policy.

DATES: Comments on this proposed rule must be received on or before 
April 21, 1997.

ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the proposed SIP revision and EPA's analysis are 
available for inspection at the U.S. Environmental Protection Agency, 
Region 5, Air and Radiation Division, 77 West Jackson Boulevard, 
Chicago, Illinois 60604. (Please telephone Kathleen D'Agostino at (312) 
886-1767 before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Regulation Development Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, Chicago, Illinois 
60604, (312) 886-1767.

SUPPLEMENTARY INFORMATION:

I. State Submittal

    On May 16, 1996, the Michigan Department of Environmental Quality 
(MDEQ) submitted a revision to the State's New Source Review State 
Implementation Plan. As part of this submittal, the State included 
start-up, shutdown and malfunction rules: R 336.1912 Abnormal 
conditions, start-up, shutdown, and malfunction of a source, process, 
or process equipment, operating, notification, and reporting 
requirements; R 336.1913 Malfunction protection, applicability, 
prohibitions, conditions, and standards; and R 336.1914 Start up and 
shutdown protection; applicability, prohibitions, conditions and 
standards.1
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    \1\ While the start-up, shutdown and malfunction regulations 
were submitted along with the State's New Source Review SIP, they 
are contained in ``Part 9: Emission Limitations and Prohibitions--
Miscellaneous'' of Michigan's air pollution control rules; as such, 
they apply to all sources, not only those which are required to have 
a permit.
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    Rule 912 requires that a source's owner or operator operate that 
source in a manner consistent with good air pollution control practices 
for minimizing emissions during periods of abnormal conditions, start-
up, shutdown, and malfunctions (SSM). The rule also contains notice and 
reporting requirements in the event of start-up, shutdown or 
malfunction. Rules 913 and 914 require that the notice and reporting 
requirements in Rule 912 be met in order for a source to be eligible 
for the affirmative defense provided in Rules 913 and 914.
    Rule 913(2) states ``The emission of an air contaminant in excess 
of an emission standard * * * or an emission limitation * * * or a 
violation of a continuous emission or parametric monitoring or 
automated recordkeeping requirement is prohibited, unless caused by the 
circumstances of a malfunction of a source, process, or process 
equipment, and the owner or operator complies with all of the 
applicable requirements of this rule.''
    Rule 914(2) states ``The emission of an air contaminant in excess 
of an emission standard * * * or an emission limitation * * * or a 
violation of a continuous emission or parametric monitoring or 
automated recordkeeping requirement is prohibited, unless caused by the 
circumstances of a start-up or shutdown of a source, process, or 
process equipment, and the owner or operator complies with all of the 
applicable requirements of this rule.''
    Both Rules 913 and 914 then provide that if the State determines 
that the owner or operator violated an emission

[[Page 13358]]

standard or limitation, or monitoring or recordkeeping requirement, and 
the owner or operator did not meet the requirements of the SSM 
regulations, then the State may take appropriate enforcement action. In 
such an enforcement action, the Michigan Department of Natural 
Resources (now the MDEQ) must provide reasonable notice of the facts 
constituting the alleged violation and noncompliance with the rule, 
while the owner or operator seeking SSM protection has the burden of 
proof. These provisions establish an affirmative defense for certain 
violations that occur during periods of SSM.

II. Comparison of State Rules to Federal Requirements

    Michigan's SSM regulations contain provisions similar to certain 
operating requirements found in 40 CFR part 63 (general provisions for 
National Emission Standards for Hazardous Air Pollutants, section 112), 
40 CFR part 60 (general provisions for New Source Performance 
Standards, section 111), and the United States Environmental Protection 
Agency's (EPA) SIP policy regarding treatment of SSM. See EPA's policy 
memorandum dated September 28, 1982 from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation, entitled ``Policy on 
Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions''. Also see EPA's clarification to the above policy 
memorandum dated February 15, 1983 from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation, and EPA's final rule for 
Utah's sulfur dioxide control strategy (Kennecott Copper), 42 FR 21472 
(April 27, 1977). However, Michigan's broad SSM regulations do not meet 
the requirements of the Act because the Act, as interpreted by the 
applicable EPA policy memoranda, does not allow for automatic 
exemptions or establish an affirmative defense from violations caused 
by SSM conditions.
    Sections 913(2) and 914(2) establish an affirmative defense by 
providing an exemption for sources that violate an emission standard, 
emission limitation, continuous emission or parametric monitoring, or 
automated recordkeeping requirement if the violation is the result of 
SSM and the source complies with the applicable requirements of the 
rules. The Act and EPA policy prohibit approval of malfunction rules 
which provide such exemptions. See the EPA policy memoranda referenced 
above.
    Under section 110, the EPA can approve malfunction rules which rely 
on the ``enforcement discretion'' approach. In such an approach, the 
malfunction rules would establish criteria to be considered by the 
regulator in determining whether an enforcement action--or the exercise 
of discretion--is appropriate. These criteria have generally included 
the following:

    1. To the maximum extent practicable, air pollution control 
equipment, process equipment, and processes were maintained and 
operated in a manner consistent with good practice for minimizing 
emissions;
    2. Repairs were made in an expeditious fashion when the operator 
knew or should have known that applicable emission limitations were 
being exceeded. Off-shift labor and overtime must have been 
utilized, to the extent practicable, to ensure that such repairs 
were made as expeditiously as practicable;
    3. The amount and duration of excess emissions (including any 
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 a recurring pattern 
indicative of inadequate design, operation, or maintenance.

    See the EPA policy memoranda referenced above.
    There may be various ways in which to structure such an enforcement 
discretion approach, and EPA will not attempt to provide detailed 
guidance here. However, EPA notes that certain issues would have to be 
addressed by the State if it were to craft such an approach using the 
current State rule as a starting point. Among these, the definition of 
``malfunction'' in R 336.1113(d) does not limit malfunctions to 
failures that are ``infrequent'' and ``not reasonably preventable'', 
and is therefore too broad. See, e.g., 40 CFR 60.2 and 63.2. The 
State's air pollution control bypass provisions in R 336.1913(3)(b) and 
R 336.1914(4)(b) are also broader than that permitted by the Act. See 
the EPA policy memoranda referenced above. The alternate emission 
limitations for startups and shutdowns in R 336.1914(4)(d) could 
(impermissibly) allow relaxations of Act requirements, including NSR 
limitations, New Source Performance Standards, toxics requirements 
(NESHAP, MACT), etc. Finally, the State SSM regulations provide no 
authority for MDEQ to review and require revisions to a source's 
written emission minimization plan for normal or usual startups and 
shutdowns. Such authority is appropriate to ensure that operating 
practices for startups and shutdowns meet good engineering practice for 
minimizing emissions, similar to the authority R 336.1911 currently 
provides for State review and revision of written preventative 
maintenance and malfunction abatement plans.

III. Effect of State Provisions on Federal Enforcement

    It should be noted that EPA does not recognize the Michigan SSM 
regulations as affecting EPA's enforcement capabilities under the Act, 
and reserves the right to pursue enforcement of applicable requirements 
notwithstanding the existence of the State's SSM regulations. 
Similarly, the Michigan rules do not affect citizen suit rights under 
section 304 of the Act. The EPA will continue to pursue enforcement 
actions in accordance with its policies on enforcement discretion and 
any SSM provisions found in applicable Federal regulations.

IV. Proposed Rulemaking Action

    To determine the approvability of a rule, EPA must evaluate the 
rule for consistency with the requirements of section 110 and part D of 
the Act. In addition, EPA has reviewed the Wisconsin rule in accordance 
with EPA policy guidance documents, including: EPA's policy memorandum 
dated September 28, 1982 from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation, entitled ``Policy on 
Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions''; the clarification to the above policy memorandum dated 
February 15, 1983 from Kathleen M. Bennett, Assistant Administrator for 
Air, Noise, and Radiation; and EPA's final rule for Utah's sulfur 
dioxide control strategy (Kennecott Copper), 42 FR 21472 (April 27, 
1977). Upon completing this review the EPA is proposing to disapprove 
Michigan's SIP revision request because it is inconsistent with the Act 
and the applicable policy set forth in these documents.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal

[[Page 13359]]

Register on January 19, 1989 (54 FR 2214-2225), as revised by a July 
10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air 
and Radiation. The Office of Management and Budget (OMB) has exempted 
this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C.603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    EPA's disapproval of the State request under Section 110 and 
subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(''Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must undertake various actions in association with any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. This Federal action 
approves pre-existing requirements under state or local law, and 
imposes no new requirements. Accordingly, no additional costs to state, 
local, or tribal governments, or the private sector, result from this 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: March 5, 1997.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 97-7100 Filed 3-19-97; 8:45 am]
BILLING CODE 6560-50-P
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