[Federal Register Volume 68, Number 36 (Monday, February 24, 2003)]
[Rules and Regulations]
[Pages 8550-8553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4260]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI80-01-7289a, FRL-7442-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Michigan; Excess Emissions During Startup, Shutdown or Malfunction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving several rule revisions for incorporation 
into Michigan's State Implementation Plan (SIP). The Michigan 
Department of Environmental Quality (MDEQ) submitted these revisions to 
EPA on September 23, 2002. They include rules to address excess 
emissions occurring during startup, shutdown or malfunction, as well as 
revisions to related definitions.

DATES: This rule is effective on April 25, 2003, unless EPA receives 
adverse written comments by March 26, 2003. If EPA receives adverse 
comments, EPA will publish a timely withdrawal of the rule in the 
Federal Register and inform the public that the rule will not take 
effect.

ADDRESSES: Send written comments to: Carlton Nash, Chief, Regulation 
Development Section, Air Programs Branch, (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    You may inspect copies of the documents relevant to this action 
during normal business hours at the following location: Regulation 
Development Section, Air Programs Branch, (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. Please contact 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, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-1767.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Did Michigan Submit?
II. What Action Is EPA Taking?
III. What Criteria Is EPA Using in Reviewing the State's Submission?
IV. Are the State's Rules Consistent with the Clean Air Act?
V. Is This Action Final, or May I Still Submit Comments?
VI. Statutory and Executive Order Reviews.

I. What Did Michigan Submit?

    On September 23, 2002, the MDEQ submitted a revision to its SIP 
containing rules to address excess emissions occurring during startup, 
shutdown or malfunction, as well as revisions to related definitions. 
MDEQ submitted the following rules:

    R 336.1102 Definitions; B
    R 336.1104 Definitions; D
    R 336.1105 Definitions; E
    R 336.1107 Definitions; G
    R 336.1108 Definitions; H
    R 336.1113 Definitions; M
    R 336.1118 Definitions; R
    R 336.1120 Definitions; T
    R 336.1915 Enforcement discretion in instances of excess emissions 
resulting from malfunction, start-up or shutdown.
    R 336.1916 Affirmative defense for excess emissions during start-up 
or shutdown.

II. What Action Is EPA Taking?

    EPA is approving all of these rules for incorporation into 
Michigan's SIP.

III. What Criteria Is EPA Using in Reviewing the State's Submission?

    In determining the approvability of a rule for incorporation into a 
state SIP, EPA must evaluate the rule for consistency with the 
requirements of the Clean Air Act (Act), EPA regulations and the EPA's 
interpretation of these requirements as expressed in EPA policy 
documents. The EPA's policy on excess emissions occurring during 
startup, shutdown or malfunction is set forth in the following 
documents: a 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;'' EPA's clarification to the above 
policy memorandum dated February 15, 1983, from Kathleen M. Bennett, 
Assistant Administrator for Air, Noise, and Radiation; EPA's policy 
memorandum reaffirming and supplementing the above policy, dated 
September 20, 1999, from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance and Robert Perciasepe, Assistant 
Administrator for Air and Radiation, entitled ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown;'' and EPA's final rule for Utah's sulfur dioxide control 
strategy (Kennecott Copper), 42 FR 21472 (April 27, 1977).
    The policy documents referenced above note that, because excess 
emissions might aggravate air quality so as to prevent attainment or 
interfere with maintenance of the ambient air quality standards, EPA 
views all excess emissions as violations of the applicable emission 
limitation. Nevertheless, EPA recognizes that imposition of a penalty 
for sudden and unavoidable malfunctions caused by circumstances 
entirely beyond the control of the owner or operator may not be 
appropriate. With respect to startup and shutdown of process equipment, 
EPA also recognizes that this is part of the normal operation of a 
source and should be accounted for in the planning, design and 
implementation of operating procedures for the process and control 
equipment. Accordingly, it is reasonable to expect that careful and 
prudent planning and design will, in most cases, eliminate violations 
of emission limitations during such periods. However, EPA acknowledges 
that for a few sources there may exist infrequent short periods of 
excess emissions during startup and shutdown which cannot be avoided.
    One way of addressing these situations is through an ``enforcement 
discretion'' approach. In this type of approach, a state or EPA can 
refrain from taking an enforcement action if appropriate criteria are 
met. A second way of addressing excess emissions occurring during 
startup and shutdown periods is through an ``affirmative defense'' 
approach. Under this approach, a SIP provision would, in the context of 
an enforcement action for excess emissions, excuse a source from 
penalties if the source can demonstrate that it meets certain objective 
criteria (an ``affirmative defense''). See EPA's September 20, 1999 
policy memorandum. Michigan's rules contain both enforcement discretion 
and affirmative defense provisions.

[[Page 8551]]

IV. Are Michigan's Rules Consistent With the Clean Air Act?

    We have reviewed Michigan's submittal. For the reasons discussed 
below, we have found it to be consistent with the requirements of the 
Act, as set forth in the applicable EPA policy documents and rules. 
Therefore, we are approving Michigan's rule revisions for incorporation 
into the State's SIP.

Definitions

    R 336.1102(a), R 336.1104(e), R 336.1107(g), R 336.1108(c), R 
336.1118(f) and R 336.1120(i) contain minor administrative revisions, 
e.g. replacing commission with department. All of these revisions are 
acceptable.
    R 336.1105(f) was revised to define ``excess emissions'' as 
``emissions of an air contaminant in excess of any applicable emission 
limitation.'' R 336.1113(d) was revised to read as follows:

    ``Malfunction'' means any sudden, infrequent and not reasonably 
preventable failure of a source, process, process equipment, or air 
pollution control equipment to operate in a normal or usual manner. 
Failures that are caused in part by poor maintenance or careless 
operation are not malfunctions.

    These definitions are consistent with the EPA policy documents 
listed above which pertain to excess emissions occurring during 
startup, shutdown and malfunctions.
    Rules R 336.1915 and R 336.1916 address excess emissions occurring 
during startup, shutdown or malfunction. Rule R 336.1915 contains 
Michigan's procedure for utilizing enforcement discretion for excess 
emissions resulting from malfunction, startup or shutdown.

Enforcement Discretion Approach

    EPA's February 15, 1983, policy sets forth the criteria that should 
be considered in determining whether enforcement discretion should be 
exercised in cases of malfunction. The criteria are listed below, as 
are the sections of Michigan's rule which address the criteria:
    1. To the maximum extent practicable the air pollution control 
equipment, process equipment, or processes were maintained and operated 
in a manner consistent with good practice for minimizing emissions. 
(336.1915(3)(b))
    2. Repairs were made in an expeditious fashion when the operator 
knew or should have know 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. (336.1915(3)(d))
    3. The amount and duration of the excess emissions (including any 
bypass) were minimized to the maximum extent practicable during periods 
of such emissions. (336.1915(3)(e))
    4. All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality. (336.1915(3)(f))
    5. The excess emissions are not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance. 
(336.1915(3)(g))
    In addition, Michigan's rule requires the following:
    1. The excess emissions must be the result of a sudden and 
unavoidable breakdown of process or control equipment, beyond the 
reasonable control of the person operating the facility;
    2. The excess emissions caused by a bypass of control equipment 
were unavoidable to prevent loss of life, personal injury, or severe 
property damage;
    3. The malfunction was an infrequent event and was not reasonably 
preventable;
    4. All emission monitoring systems were kept in operation if at all 
possible;
    5. The source has a malfunction abatement plan as set forth in 
Michigan's rules;
    6. The excess emissions were reported to MDEQ as specified in their 
rules and, if requested by the MDEQ, the source must submit a written 
report that includes known causes, corrective actions taken, and 
preventive measures to be taken to minimize or eliminate the chance of 
recurrence;
    7. The actions during the period of excess emissions were 
documented by contemporaneous operating logs or other relevant 
evidence; and
    8. Any information submitted to MDEQ under the rule must be 
properly certified.
    All of these provisions are appropriate and consistent with the EPA 
policy documents listed above.
    For excess emissions occurring during startup or shutdown of 
process equipment, EPA's February 15, 1983, policy requires that the 
excess emissions occur infrequently, over a short period; that the 
excess could not have been prevented through careful planning and 
design; and that bypassing of control equipment was unavoidable to 
prevent loss of life, personal injury, or severe property damage. 
Michigan includes these requirements under section 336.1915(4). In 
addition, sources must meet requirements comparable to those detailed 
above for malfunctions. All of these provisions are appropriate and 
consistent with the EPA policy documents listed above.
    It should be noted that Michigan's rule clearly states that 
emission units subject to section 111 or 112 of the Act are subject to 
the startup, shutdown, or malfunction provisions contained in section 
111 or 112. The rule also emphasizes that nothing in the rule limits 
the authority of MDEQ to seek injunctive relief.

Affirmative Defense Approach

    Rule R 336.1916 contains Michigan's affirmative defense provisions 
for excess emissions resulting from startup or shutdown. As stated in 
EPA's September 20, 1999, policy memorandum, an acceptable affirmative 
defense provision may only apply to actions for penalties, but not to 
actions for injunctive relief. This restriction insures that State and 
Federal authorities remain able to protect air quality standards and 
PSD increments. Michigan's rule contains these restrictions in R 
336.1916(1) and (4). Furthermore, the affirmative defense approach is 
appropriate only when the respective contributions of individual 
sources to pollutant concentrations in ambient air are such that no 
single source or small group of sources has the potential to cause an 
exceedance of the NAAQS or PSD increments. Michigan addresses this 
requirement in R 336.1916(2).
    In addition, for periods of excess emissions arising during startup 
and shutdown, EPA's September 20, 1999, policy sets forth criteria 
which are part of the defendant's burden of proof. The criteria are 
listed below as are the sections of Michigan's rule which address the 
criteria:
    1. The periods of excess emissions that occurred during startup and 
shutdown were short and infrequent and could not have been prevented 
through careful planning and design. (336.1916(1)(a))
    2. The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance. 
(336.1916(1)(b))
    3. If the excess emissions were caused by a bypass (an intentional 
diversion of control equipment), then the bypass was unavoidable to 
prevent loss of life, personal injury, or severe property damage. 
(336.1916(1)(c))
    4. At all times, the facility was operated in a manner consistent 
with good practice for minimizing emissions. (336.1916(1)(d))
    5. The frequency and duration of operation in startup or shutdown 
mode

[[Page 8552]]

was minimized to the maximum extent practicable. (336.1916(1)(e))
    6. All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality. (336.1916(1)(f))
    7. All emission monitoring systems were kept in operation if at all 
possible. (336.1916(1)(g))
    8. The owner or operator's actions during the period of excess 
emissions were documented by properly signed, contemporaneous operating 
logs, or other relevant evidence. (336.1916(1)(h) and (j))
    9. The Owner or operator properly and promptly notified the 
appropriate regulatory authority. (336.1916(1)(i))
    Both EPA policy and Michigan's rule note that if excess emissions 
occur during routine startup or shutdown periods due to a malfunction, 
then those instances should be treated as other malfunctions.

V. Is This Action Final, or May I Still Submit Comments?

    EPA is publishing this action without prior proposal, because EPA 
views this as a noncontroversial revision and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, EPA is proposing to approve the SIP revision. Should EPA 
receive adverse written comments by March 26, 2003, we will withdraw 
this direct final and respond to any comments in a final action. If EPA 
does not receive adverse comments, this action will be effective 
without further notice. Any parties interested in commenting on this 
action should do so at this time. If we do not receive comments, this 
action will be effective on April 25, 2003.

VI. What Statutory and Executive Order Reviews Did EPA Conduct?

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. For this reason, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This action merely approves State law as meeting 
Federal requirements and imposes no additional requirements beyond 
those imposed by State law. Accordingly, the Administrator certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing 
requirements under State law and does not impose any additional 
enforceable duty beyond that required by State law, it does not contain 
any unfunded mandate nor does it significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This action also does not have federalism 
implications because it will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
``Federalism'' (64 FR 43255, August 10, 1999). This action merely 
approves a State rule implementing a Federal standard, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Act. This rule also is not subject 
to Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it is not a significant regulatory action under Executive Order 12866.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a SIP submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a SIP submission that otherwise satisfies the provisions of the Act. 
Therefore, the requirements of section 12(d) of the NTTA do not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 25, 2003. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.


[[Page 8553]]


    Dated: January 9, 2003.
Bharat Mathur,
Acting Regional Administrator, Region 5.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart X--Michigan

    2. Section 52.1170 is amended by adding paragraph (c)(118) to read 
as follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (c) * * *
    (118) The Michigan Department of Environmental Quality submitted 
revisions to Michigan's State Implementation Plan (SIP) on September 
23, 2002. They include rules to address excess emissions occurring 
during startup, shutdown or malfunction as well as revisions to 
definitions.
    (i) Incorporation by reference. The following sections of the 
Michigan Administrative Code are incorporated by reference.
    (A) R 336.1102 Definitions; B, effective May 27, 2002.
    (B) R 336.1104 Definitions; D, effective May 27, 2002.
    (C) R 336.1105 Definitions; E, effective May 27, 2002.
    (D) R 336.1107 Definitions; G, effective May 27, 2002.
    (E) R 336.1108 Definitions; H, effective May 27, 2002.
    (F) R 336.1113 Definitions; M, effective May 27, 2002.
    (G) R 336.1118 Definitions; R, effective May 27, 2002.
    (H) R 336.1120 Definitions; T, effective May 27, 2002.
    (I) R 336.1915 Enforcement discretion in instances of excess 
emissions resulting from malfunction, start-up, or shutdown, effective 
May 27, 2002.
    (J) R 336.1916 Affirmative defense for excess emissions during 
start-up or shutdown, effective May 27, 2002.

[FR Doc. 03-4260 Filed 2-21-03; 8:45 am]
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