[Federal Register Volume 63, Number 34 (Friday, February 20, 1998)]
[Rules and Regulations]
[Pages 8573-8577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4003]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI58-01-7266; FRL-5967-3]
Approval and Promulgation of State Implementation Plans; Michigan
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rulemaking finalizes the United States Environmental
Protection Agency's (USEPA) disapproval of the State Implementation
Plan (SIP) revision submitted by Michigan containing start-up, shutdown
and malfunction (SSM) regulations which would apply generally to
sources covered under the applicable SIP. This action is being taken
under section 110 of the Clean Air Act (Act).
DATES: This final rule is effective March 23, 1998.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours 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. Background
On March 20, 1997 (62 FR 13357), the USEPA published a document
proposing disapproval of a SIP revision containing Rules 336.1912,
336.1913 and 336.1914, which was submitted by the Michigan Department
of Environmental Quality (MDEQ) on May 16 1996. Rule 336.1912 requires
that a source be operated in a manner consistent with good air
pollution control practices for minimizing emissions during start-ups,
shutdowns and malfunctions, and contains notice and reporting
requirements in the event of start-up, shutdown or malfunction. Rules
336.1913 and 336.1914 excuse excess emissions resulting from start-ups,
shutdowns or malfunctions, providing that the notice and reporting
requirements in Rule 336.1912 are met. The rationale for USEPA's
proposed action is explained in the notice of proposed rulemaking and
will not be restated here.
II. Public Comments/Response to Comments
This section summarizes the comments submitted during the public
comment period for the notice of proposed rulemaking and provides
USEPA's response to those comments. The comment period closed April 21,
1997. Adverse comments were received from the Michigan Department of
[[Page 8574]]
Environmental Quality, the Michigan Chamber of Commerce, the Michigan
Manufacturers Association, General Motors Corporation and the American
Automobile Manufacturers Association.
Comment: USEPA's proposed disapproval is not supported by section
110 of the Clean Air Act (CAA). There is no specific language in
section 110 that provides the USEPA with the authority to disapprove
Michigan's SSM rules. Section 110 contains no provisions that prohibit
the type of exemption and affirmative defense contained in the SSM
rules.
Response: It is true that section 110 does not explicitly address
SSM regulations. However, under section 110 of the Act, USEPA is
required to determine whether a SIP submission, inter alia, provides
for the attainment and maintenance of the National Ambient Air Quality
Standards (NAAQS). Because SIPs are developed to attain and maintain
ambient-based standards, any emissions above the SIP-approved limits
may cause or contribute to violations of the NAAQS. USEPA believes that
SSM regulations which are too broadly drawn can threaten attainment and
maintenance of the NAAQS. Therefore, EPA believes that it is reasonable
to interpret section 110 to prohibit generally applicable SSM
provisions.
In addition, Sec. 110(a)(2)(A) of the Act requires that SIP
submissions contain enforceable limitations. Enforceability
deficiencies, i.e., overly broad bypass provisions and definitions of
``malfunction,'' are discussed further below. (See USEPA's response to
the comment that Michigan's SSM rules are consistent with the 1983
memorandum from Kathleen Bennett.)
Comment: Because CAA regulations, e.g., 40 CFR part 63, already
allow for protection which is broader than that proposed in the
Michigan rules, the USEPA is without authority to proclaim that
enforcement discretion is the only avenue for an SSM process to
proceed. It is illogical to argue that Michigan's SSM rules do not
comply with the CAA when CAA regulations provide for at least as broad
protection against enforcement.
Response: The statutory and regulatory focus of NESHAPS (and NSPS)
is fundamentally different from the SIP program and different policies
apply, i.e., technology-based standards as opposed to the air quality
objectives of section 110. The Bennett memoranda recognize that the
attainment and maintenance of the NAAQS cannot be assured with overly-
broad SSM provisions. EPA continues to believe that the health-based
objective of SIPs make general SSM provisions unacceptable, even though
such provisions may be appropriate for technology-based standards such
as NESHAP and NSPS.
Comment: There is a substantive difference between the position set
forth in the Bennett memoranda and the protections afforded by both 40
CFR 63 and the Michigan SSM rules. The promulgated Federal and State
rules provide that there is no violation if the requirements of the
rules are met. In contrast, the USEPA's memoranda position provides
that there is a substantive violation of the CAA which then becomes
subject to its enforcement discretion.
Response: The USEPA acknowledges that the Bennett memoranda
recognize all periods of excess emissions as violations of the
applicable SIP standard whereas periods of excess emissions occurring
during start-ups, shutdowns or malfunctions may be excused under 40 CFR
part 63 for NESHAPS. For the reasons discussed in response to the
previous comment, USEPA believes that this is a reasonable distinction.
Comment: The USEPA misconstrues its authority under section 110 of
the CAA. The United States Court of Appeals for the District of
Columbia Circuit recently affirmed that the USEPA is not authorized
under section 110 to dictate to states the methods to be used to
achieve and maintain compliance with the National Ambient Air Quality
Standards (NAAQS). Rather the D.C. Circuit recognized the relationship
between the states and USEPA as one in which the states determine how
best to regulate emission sources to achieve and maintain compliance
with the NAAQS while USEPA is limited to determining whether each
state's program will achieve the required air quality standards.
In promulgating the SSM statutory provisions and corresponding
regulations, Michigan has exercised its power to ``determine which
sources would be burdened by regulations and to what extent.'' Provided
that attainment and maintenance of the NAAQS is the result of
Michigan's overall implementation plan, the USEPA is not authorized,
under section 110, to reject portions of Michigan's SIP that differ
from the USEPA's enforcement policy.
Response: USEPA agrees that the CAA places primary responsibility
upon the states to formulate requirements it deems appropriate to
protect air quality. However, the CAA does not grant states unfettered
discretion. Rather, the CAA and USEPA policy form a framework which
states must work within when developing SIPs. (Some programs and
requirements are expressly set forth in the CAA, e.g. inspection and
maintenance, reasonably available control technology.) Furthermore, the
Act charges USEPA with the determination as to whether the state's
choices will result in attainment and maintenance of the NAAQS. For the
reasons previously discussed, USEPA believes that the effect of
Michigan's SSM regulations is to create uncertainty as to whether this
statutory goal can be accomplished. In addition, Sec. 110(a)(2)(A) of
the Act requires that SIP submissions contain enforceable limitations.
Enforceability deficiencies, i.e., overly broad bypass provisions and
definitions of ``malfunction,'' are discussed further below. (See
USEPA's response below to the comment that Michigan's SSM rules are
consistent with the 1983 memorandum from Kathleen Bennett.)
Comment: Inconsistency with USEPA policy is not a valid reason for
disapproval of a State Implementation Plan (SIP) revision. There is no
reference to the Bennett memoranda, or any other policy, in section 110
of the CAA. Therefore, it is inappropriate to base the disapproval of
Michigan's SSM rules on such policy memoranda. Statutory authority, and
not policy memoranda, should be the basis for the disapproval.
Response: As noted previously, it is appropriate for USEPA to
clarify regulations and statutes with written policies and guidance
documents. In the context of rulemakings on SIP submissions, the public
has an opportunity to comment and respond to USEPA's policies that
interpret the relevant statutes and regulations. Through rulemaking
actions, such as this, USEPA can determine whether to modify its policy
or whether it still stands by its policy interpretation in light of any
public comments. In this case, USEPA continues to support the policy
established by the Bennet memoranda for the reasons stated in those
memoranda and in this rulemaking action.
Comment: EPA's disapproval of Michigan's regulations, based on
internal policy memoranda, is groundless. The SSM rules are the result
of a publicly conducted work group, and were promulgated in accordance
with all applicable State laws. The rationale offered by USEPA is not
the result of a lawfully conducted notice and comment rulemaking
process, nor does it cite any specific portion of any rule or statute
with which the SSM rules are inconsistent. The substantive rights
[[Page 8575]]
of the regulated community are affected by the enforcement discretion
interpretation contained in the Bennett memoranda. Therefore,
rulemaking is required in order for the interpretation contained in the
policy memoranda to be enforceable.
Response: Policy documents generally interpret the statute and do
not establish binding requirements. Therefore, they are not subject to
notice and comment rulemaking. As discussed above, rulemaking such as
this provides the public with an opportunity to comment and to question
USEPA's policy interpretations. If a sufficient basis had been provided
for USEPA to revise or deviate from its policy, the Agency would do so.
However, the comments submitted have not persuaded the Agency to change
the existing policy, nor its application with respect to the Michigan
SSM rule.
Comment: The enforcement discretion approach is insufficient
following recent statutory and program changes. Title V of the CAA
requires that the Responsible Official certify, under penalty of
imprisonment, all data as truthful, accurate, and complete and requires
periodic submittal of certifications by the Responsible Official
detailing the compliance status of each facility. Thus, the Responsible
Official for each Title V source has a duty to disclose any
noncompliance with any applicable regulation. In addition, the 1990
Amendments provided enhanced criminal penalty provisions and revised
the citizen suit provisions, increasing the likelihood of CAA
enforcement actions. If an owner or operator of a source has knowledge
that a process during startup or shutdown would possibly violate an
emission limitation and proceeds to startup or shutdown the process,
that knowledge could satisfy the intent requirement for a criminal
prosecution. In many cases, compliance with applicable regulations
during startup, shutdown, or malfunctions is technically or
economically impossible. The SSM regulations contained in Michigan's
SIP provide owners and operators of facilities with the appropriate
protection against prosecution for startup problems of older
facilities.
The enforcement discretion approach asks the regulated industry to
rely on the exercise of discretion by both state and federal agencies.
In addition, if such dual discretion does occur, nothing prevents
citizens from pursuing a civil action to impose penalties on the source
for the emission violations. Because of the enhanced federal and state
statutes, the creation of criminal liability, and the lack of
protection from citizen suits, a reliance on enforcement discretion is
insufficient.
Response: With respect to start-up and shutdown situations, it is
USEPA's general policy, as set forth in the Bennett memoranda, that:
``Startup and shutdown of process equipment are 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 eliminate violations of emission
limitations during such periods.'' If there are circumstances where a
source cannot comply with the SIP during start-up, shutdown or
maintenance situations despite careful and prudent planning and design,
the State should address these particular problems in development of
(or revision to) the underlying rules applicable to those sources and
not through overarching excess emissions provisions. (Any revision made
to the state's rules to address these concerns must be submitted to
USEPA as a SIP revision request.)
USEPA is cognizant of the various remedies under the Clean Air Act
for SIP violations, including those available under the criminal suit
provisions of Section 113(c). It should be noted, however, that no
criminal action may be brought under that section unless a person
knowingly violates the applicable requirement ``* * * more than 30 days
after having been notified * * * that such person is violating such
requirement or prohibition* * *.'' Thus, the scenario envisioned by the
commentor is not realistic, unless appropriate notice is given and the
violations continue. As discussed earlier, where there is such a
likelihood of continuing violation, sources should seek relief through
the SIP revision process.
USEPA also believes that the commentor's concern about the
perceived inadequacy of an enforcement discretion approach is
misplaced. The CAA has long provided for enforcement of SIP violations.
Moreover, the revisions to enforcement provisions in 1990 were not
intended to impact substantive regulations. Rather they were included
with the recognition that the CAA has, at times, been difficult to
enforce. USEPA further notes that reliance on the judicial system and
courts' equitable discretion provides further protection.
Comment: Michigan's SSM provisions are consistent with the February
15, 1983 memorandum from Kathleen M. Bennett, Assistant Administrator
for Air, Noise and Radiation to the Regional Administrators entitled
``Policy on Excess Emissions During Startup, Shutdown, Maintenance and
Malfunctions.'' The SSM rules contain all of the criteria required to
be considered by the regulator in determining whether enforcement
action or discretion is warranted.
Response: The criteria referenced above are to be considered when
determining whether to exercise enforcement discretion for periods of
excess emissions caused by a malfunction, not to excuse those
emissions. As discussed previously, because SIPs protect ambient-based
standards, any emissions above the allowable may cause or contribute to
violations of the NAAQS, and therefore cannot be excused. State and
federal agencies (and citizens) need to be able to seek relief where
public health may be threatened by periods of excess emissions.
Furthermore, the criteria referenced above apply only in the case
of malfunctions. They do not apply to periods of excess emissions
caused by startup, shutdown or maintenance (unless the excess is
attributable to a malfunction occurring during those times). Start-up
and shutdown of process equipment are part of the normal operation of a
source and should be accounted for in the design and implementation of
the operating procedure for the process and control equipment.
Accordingly, it is reasonable to expect that, in most cases, careful
planning will eliminate violations of emission limitations during such
periods.
Moreover, even if USEPA did determine that the state could excuse
these emissions, there remain issues which make the rules unapprovable.
The definitions of ``malfunction,'' contained in 324.5509(1), part 55
of the Michigan Natural Resources and Environmental Protection Act and
R 336.1113(d), Michigan administrative code, do not limit malfunctions
to failures that are ``infrequent'' and ``not reasonably preventable,''
and are therefore too broad. [See e.g. 40 CFR 60.2] Frequent or
reasonably preventable excess emissions would tend to indicate an
underlying problem with the design, operating procedures or maintenance
of a source and therefore should not be considered a malfunction. The
State's bypass provisions in SIP R 336.1913(3)(b) and R 336.1914(4)(b)
are also too broad. USEPA policy regarding bypass states that ``* * *
if effluent gasses are bypassed which cause an emission limitation to
be exceeded, this excess need not be treated as a violation
[[Page 8576]]
if the source can show that the excesses could not have been prevented
through careful and prudent planning and design and that bypassing was
unavoidable to prevent loss of life, personal injury or severe property
damage.'' [Memorandum dated February 15, 1983, from Kathleen M.
Bennett, Assistant Administrator for Air, Noise and Radiation entitled
``Policy on Excess Emissions During Startup, Shutdown, Maintenance, and
Malfunctions'']. The USEPA continues to believe that this is a
necessary policy, and that the bypass provisions contained in the
State's rule are inadequate for the reasons stated in that policy.
In addition, 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 necessary 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.
Comment: The USEPA's position is not consistent with existing,
long-standing regulations, and not consistent with its own rulemakings
in other state's SIPs. Unless the USEPA intends to rescind 40 CFR 63
and other state SIPS as being inconsistent with the CAA, and then
propose a general rule consistent with its internal memoranda, the
USEPA's argument that Michigan's SSM rules do not comply with the CAA
is without merit.
Response: As previously discussed, the difference in approach
between the technology-based NESHAP rules and air quality-based SIP
rules merits the different treatment for provisions concerning SSM
excess emissions. With regard to the suggestion that USEPA's action on
the Michigan submission is somehow inconsistent with its action(s) with
other state submission, without additional information on which
state(s) the commentor is referencing, USEPA cannot reasonably respond
to this comment. However, as noted previously, USEPA continues to
support the policy established by the Bennett memoranda for the reasons
stated in those memoranda and in this rulemaking action. It should
nonetheless be noted that, even if the commentor had identified such an
inconsistent action, USEPA would not be precluded from disapproving
Michigan's SSM submission. Southwestern Pennsylvania Growth Alliance v.
Browner, 121 F. 3d 106 (3d Cir. 1997).
Comment: The USEPA does not identify any deficiencies with Rule
912. Therefore, Rule 912 should be approved as part of the SIP.
Response: USEPA acknowledges that it did not cite any deficiencies
for Rule 912 in its notice of proposed rulemaking. However, USEPA
believes that when Rule 912 was adopted by Michigan, it was promulgated
as an integral part of the SSM regulations; i.e., the protection
granted in Rules 913 and 914 is contingent on meeting the operating,
notification and reporting requirements in Rule 912. In this case,
approving Rule 912 while disapproving Rules 913 and 914 would result in
establishing operating, notification and reporting requirements for
sources without granting the protection to them contemplated by the
companion rules. Under existing case law, USEPA may not partially
approve a state SIP submission if such action will result in the
approved rules being more stringent than was intended by the state when
they were adopted. See Bethlehem Steel Corp. v. Gorsuch, 742 F. 2d 1028
(7th Cor. 1984); Indiana and Michigan Elec. Co. v. U.S.E.P.A., 733 F.
2d 489 (7th Cir. 1984).
III. Final Rulemaking Action
To determine the approvability of a rule, USEPA must evaluate the
rule for consistency with the requirements of the Act, USEPA
regulations and the USEPA's interpretation of these requirements as
expressed in USEPA policy guidance documents. While USEPA understands
the concerns raised by the commentors, rules 913 and 914 remain
inconsistent with the Act and the applicable policies by which USEPA
must evaluate submittals. Therefore, in today's action, USEPA is
finalizing the disapproval proposed on March 20, 1997.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 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. Secs. 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.
USEPA's disapproval of the State request under Section 110 and
subchapter I, part D of the Clean Air Act 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, USEPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, USEPA 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,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany 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 private sector, of $100
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the disapproval action promulgated does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal disapproval
action imposes no new requirements. Accordingly, no additional costs to
[[Page 8577]]
State, local, or tribal governments, or to the private sector, result.
No new Federal requirements are imposed. Accordingly, no additional
costs to state, local, or tribal governments, or the private sector,
result from this action.
D. Small Business Regulatory Enforcement Fairness Act
The Congressional Review Act, 5 U.S.C. Sec. 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. USEPA 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. This
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 21, 1998. 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).
V. List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. Sec. 7401 et seq.
Dated: January 30, 1998.
David A. Ullrich,
Acting Regional Administrator, Region V.
[FR Doc. 98-4003 Filed 2-19-98; 8:45 am]
BILLING CODE 6560-50-P
