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DE P ARTMEN T OF EN VIRONMEN TAL QUALIT Y AIR QUALIT Y DIVISION
AIR P OLLUTION CONTROL
Filed with th e Secretar y of Stat e on
These ru les tak e effect 7 days after filing with th e Secretar y of Stat e
(By auth ority con ferr ed on th e director of th e dep artm ent of environm enta l qua lity by sections 5503 an d 5512 of 1994 PA 451 , MCL 324 .5503 an d 324 .5512 , an d Execut ive Reorgan izat ion Order No. 1995 -18, MCL 324 .99903 )
R 336 .1915 an d R 336 .1916 ar e added to th e Michigan Administrat ive Code as follows :
P ART 9. EMISS ION LIMITATIO NS AND P ROHIBITIO NS --MIS CELLANE OUS
R 336 .1915 ENF ORCEMEN T DISCRE TION IN INS TANCES OF EXCESS EMISS IONS RESU LTING FR OM MALFUN CTIO N, START-UP , OR SHU TDOWN.
RULE 915 . (1) IN DETERMI NIN G WHE THE R THE DEP ARTM EN T WILL PU RSUE ENF ORCEMEN T AGAINST A PE RSO N, THE DEP ARTMEN T SHALL CONSI DER EVIDEN CE THAT THE EMISSIO N VIOLATIO NS RESULT ED FROM A MALFUN CTIO N, START-UP , OR SHU TDOWN.
(2) IF THE DEP ARTMEN T DETERMI NES THAT THE EMISSIO N VIOLATIO NS RESULT ED FROM A MALFUN CTIO N, START-UP , OR SHU TDOWN, THEN THE DEP ARTMEN T MAY USE ENF ORCEMEN T DISCR ETIO N WHEN RESOLVING THE EMISSIO N VIOLATIO NS BASED UP ON SUBRUL ES (3) AND (4) OF THIS RULE, AS APP LIC ABLE .
(3) A PE RSO N MAY SUBMIT EVIDEN CE TO THE DEP ARTMEN T FOR ITS CONSI DERATIO N IN DETERMI NIN G THAT THE EMISSIO N VIOLATIO NS RESULT ED FROM A MALFUN CTIO N. THE EVIDEN CE SHALL DEMONS TRATE ALL OF THE FOLLOWI NG, AS APP LIC ABLE:
(A) THE EXCESS EMISSIO NS WERE A RESULT OF A SUDD EN AND UN AVOID ABLE BREAKDOW N OF PROCESS OR CONTROL EQUIP MEN T, BEYOND THE REASON ABLE CONTROL OF THE PE RSO N.
(B) THE AIR POLLUTIO N CONTROL EQUIP MEN T, PROCESS EQUIP MEN T, AND PROC ESSES WERE MAINT AIN ED AND OPE RATED IN A MANNE R CONSIS TEN T WITH GOOD PRACTIC E FOR MINI MIZING EMISSIO NS, TO THE MAXIMUM E XTEN T P RACTIC ABLE .
(C) REP AIRS WERE MADE IN AN EXPE DITIO US FASHION WHEN THE PE RSO N KNE W OR SHOULD HAVE KNOWN THAT APP LIC ABLE EMISSIO N LIMIT ATIO NS WERE BEING EXCEE DED. TO THE EXTEN T PRACTIC ABLE, OFF -SHIFT LABOR AND OVERTIM E SHALL HAVE BEEN UTILI ZED TO EN SUR E THAT THE REP AIRS WERE MADE EXPE DITIO US LY.
(D) THE AMOUN T AND DURATIO N OF EXCESS EMISSIO NS, INCLUDING ANY BYPASS, WERE MINI MIZED TO THE MAXIMUM EXTEN T PRACTIC ABLE DURING PE RIODS OF THE EMISSIO NS.
(E) ALL REASON ABLY POSSIBL E STEP S WERE TAKEN TO MINI MIZE THE IMPACT OF THE EXCESS EMISSIO NS ON AMBI EN T AIR QUALIT Y.
(F) THE EXCESS EMISSIO NS RESULTING FROM THE MALFUN CTIO N WERE NOT PART OF A RECURRI NG PATTERN INDIC ATIVE OF IN ADEQUATE DESIGN , OPE RATIO N, OR MAINT EN ANCE.
(G) THE MALFUN CTIO N WAS AN IN FREQUEN T EVEN T AND WAS NOT REASON ABLY P REVEN TABLE .
(H) THE PE RSO N RESPONSI BLE FOR OPE RATING THE SOURC E OF AIR CONTAMINANTS HAS A MALFUN CTIO N ABATEMEN T PLAN, CONSIS TEN T WITH THE REQUI REMEN TS SET FORTH IN R 336 .1911 (2) AND WITH BOTH OF THE FOLLOWI NG PROVISIONS :
(I) ) ANY MALFUN CTIO N ABATEMEN T PLAN DEVELOPE D IN ACCORD ANCE WITH R 336 .1911 (2) SHALL BE MAINT AIN ED ONSI TE AND AVAILABLE FOR INS PE CTIO N, UP ON REQUES T, BY THE DEP ARTMEN T FOR THE LIFE OF THE EMISSIO N UNI T OR UNI TS. THE DEP ARTMEN T MAY REQUI RE THAT THE PE RSO N RESPONSI BLE FOR THE MALFUN CTIO N ABATEMEN T PLAN MAKE REVISIONS TO THE PLAN. THE PE RSO N SHALL REVISE THE MALFUN CTIO N ABATEMEN T PLAN WITHIN 45 DAYS AFTER A REQUES T BY THE DEP ARTM EN T. THE REVIS ED MALFUN CTIO N ABATEMEN T PLAN SHALL BE DEVELOPE D IN ACCORD ANCE WITH R 336 .1911 (2).
(II ) IF THE MALFUN CTIO N ABATEMEN T PLAN FAILS TO ADDRESS OR IN ADEQUATELY ADDR ESS ES AN EVEN T THAT MEE TS THE CHARACTERISTICS OF A MALFUN CTIO N AT THE TIM E THE PLAN IS INITI ALLY DEVELOPE D, THEN THE PE RSO N SHALL REVIS E THE MALFUN CTIO N ABATEMEN T PLAN WITHIN 45 DAYS AFTER THE EVEN T OCCURS. THE REVIS ED MALFUN CTIO N ABATEMEN T PLAN SHALL BE DEVELOPE D IN ACCORD ANCE WITH R 336 .1911 (2).
(I) THE EXCESS EMISSIO NS PRESEN TING AN IMMIN EN T THREAT TO HU MAN HE ALTH, SAFE TY, OR THE EN VIRONM EN T WERE REP ORTED TO THE DEP ARTMEN T AS SOON AS POSSIBL E. UN LESS OTHE RWIS E SPE CIFIED IN THE FACILIT Y'S PE RMIT , OTHE R EXCESS EMISSIO NS WERE REP ORT ED AS PROVIDED IN R 336 .1912 . IF REQUES TED BY THE DEP ARTMEN T, A PE RSO N SHALL SUBMIT A FU LL WRITT EN REP ORT THAT INCLUD ES THE KNOWN CAUSES , THE CORR ECTI VE ACTIO NS TAKEN , AND THE PREVEN TIVE MEASUR ES TO BE TAKEN TO MINI MIZE OR ELIMI NATE THE CHANCE OF RE CURREN CE .
(J ) THE ACTIO NS DURING THE PE RIOD OF EXCESS EMISSIO NS WERE DOCUMEN TED BY CONTEMPORANE OUS OPE RATING LOGS OR OTHE R RELEVANT EVIDEN CE AS PROVIDED BY R 336 .1912 .
(K) ANY IN FORMATIO N SUBMITT ED TO THE DEP ARTMEN T UN DER THIS SUBRUL E SHALL BE PROPE RLY CERTI FIED IN ACCORD ANCE WITH THE PROVISIONS OF R 336 .1912 .
(4) A PE RSO N MAY SUBMIT EVIDEN CE TO THE DEP ARTMEN T FOR ITS CONSI DERATIO N IN DETERMI NIN G THAT THE EMISSIO N VIOLATIO NS RESULT ED FROM A START-UP OR SHU TDOW N. THE EVIDEN CE SHALL BE BASED UP ON SUBRUL E (3)(B), (D), (E), (I), (J ), AND (K) OF THIS RULE, AND R 336 .1912 , AS APP LIC ABLE.
(5) FOR AN EMISSIO N UNI T OR UNI TS SUB J ECT TO STANDARDS AND LIMIT ATIO NS PROMULGATED PU RSUANT TO SECTIO N 111 OR 112 OF THE CLE AN AIR ACT, THE START-UP , SHU TDOW N, OR MALFUN CTIO N PROVISIONS OF THE APP LIC ABLE REQUI REMEN TS WITHIN SECTIO N 111 OR 112 SHALL APP LY.
(6) NOTHING IN THIS RULE SHALL BE CONS TRUE D TO LIMIT THE AUTHORIT Y OF THE DEP ARTMEN T TO SEE K IN J UN CTI VE RELIEF OR TO ENF ORCE THE PROVISIONS OF THE ACT AND THE REGULATIO NS PROMULGATED UN DER THE ACT.
R 336 .1916 AFF IRMATIV E DEFENSE FOR EXCESS EMISS IONS DUR ING START-UP OR SHU TDOWN.
RULE 916 . (1) THE PE RSO N OPE RATING A SOURC E WITH EMISSIO NS IN EXCESS OF AN APP LIC ABLE EMISSIO N LIMIT ATIO N DUE TO START-UP OR SHU TDOW N MAY CLAIM AN AFF IRMATIVE DEFEN SE TO AN ENF ORCEMEN T PROC EE DING, EXCLUDING A J UDICI AL ACTIO N SEE KING IN J UN CTI VE RELIEF , IF THE PE RSO N HAS COMPLIED WITH THE REP ORTI NG REQUI REMEN TS OF R 336 .1912 AND HAS DEMONSTRATED ALL OF THE FOLLOWI NG:
(A) THE PE RIODS OF EXCESS EMISSIO NS THAT OCCURRED DURING START-UP OR SHU TDOW N WERE SHORT AND IN FREQUEN T AND COULD NOT HAVE BEEN PREVEN TED THROUGH CAREFU L PLANNIN G AND DESIGN .
(B) THE EXCESS EMISSIO NS THAT OCCURRED DURING START-UP OR SHU TDOW N WERE NOT PART OF A RECURRI NG PATTERN INDIC ATIVE OF IN ADEQUATE DESIGN , OPE RATIO N, OR MAINT EN ANCE.
(C) THE EXCESS EMISSIO NS CAUSE D BY A BYPASS (AN INT EN TIO NAL DIVERSIO N OF CONTROL EQUIP MEN T) WERE UN AVOID ABLE TO PREVEN T LOSS OF LIFE , PE RSO NAL IN J URY, OR SEVERE PROPE RTY DAMAGE.
(D) THE FACILIT Y WAS OPE RATED AT ALL TIM ES IN A MANNE R CONSIS TEN T WITH GOOD PRACTIC E FOR MINI MIZING EMISSIO NS .
(E) THE FREQUEN CY AND DURATIO N OF OPE RATING IN START-UP OR SHU TDOW N MODE WERE MINIMIZED TO THE MAXIMUM EXTEN T P RACTIC ABLE .
(F) ALL REASON ABLY POSSIBL E STEP S WERE TAKEN TO MINI MIZE THE IMPACT OF THE EXCESS EMISSIO NS ON AMBI EN T AIR QUALIT Y.
(G) ALL EMISSIO N MONI TORI NG SYSTEMS WERE KEP T IN OPE RATIO N IF AT ALL P OSSIBL E.
(H) THE ACTIO NS DURING THE PE RIOD OF EXCESS EMISSIO NS WERE DOCUMEN TED BY CONTEMPORANE OUS OPE RATING LOGS OR OTHE R RELEVANT EVIDEN CE AS PROVIDED BY R 336 .1912 .
(I) ) E XCESS EMISSIO NS PRESEN TING AN IMMIN EN T THREAT TO HU MAN HE ALTH, SAFE TY, OR THE EN VIRONM EN T WERE REP ORTED TO THE DEP ARTMEN T AS SOON AS POSSIBL E. UN LESS OTHE RWIS E SPE CIFIED IN THE FACILIT Y'S PE RMIT , OTHE R EXCESS EMISSIO NS WERE REP ORT ED AS PROVIDED IN R 336 .1912 . IF REQUES TED BY THE DEP ARTMEN T, A PE RSO N SHALL SUBMIT A FU LL WRITT EN REP ORT THAT INCLUD ES THE KNOWN CAUSES , THE CORR ECTI VE ACTIO NS TAKEN , AND THE PREVEN TIVE MEASUR ES TO BE TAKEN TO MINI MIZE OR ELIMI NATE THE CHANCE OF RE CURREN CE .
(J ) ANY IN FORMATIO N SUBMITT ED TO THE DEP ARTMEN T UN DER THIS SUBRUL E SHALL BE PROPE RLY CERTI FIED IN ACCORD ANCE WITH THE PROVISIONS OF R 336 .1912 .
(2) THIS AFF IRMATIVE DEFEN SE DOES NOT APP LY WHEN A SINGL E EMISSIO N UNI T, OR MULTI PLE EMISSIO N UNI TS AT A STATIO NARY SOURC E, CAUSES AN EXCEE DANCE OF THE NATIO NAL AMBI EN T AIR QUALIT Y STANDARDS OR ANY APP LIC ABLE P REVEN TIO N OF SIGNI F ICANT DE TE RIOR ATIO N INCR E MEN T.
(3) IF THE PROXIMATE CAUSE OF THE EXCESS EMISSIO NS WHICH OCC URRE D DURING ROUTINE START-UP OR SHU TDOW N PE RIODS WAS DUE TO A MALFUN CTIO N, THEN , ABSEN T ANY INT ERVEN ING ACTS OR SU PE RSEDING CAUSES , THE INST ANCES SHALL BE TREATED AS MALFUN CTIO NS IN ACCORD ANCE WITH R 336 .1915 .
(4) NOTHING IN THIS RULE SHALL BE CONS TRUE D TO LIMIT THE AUTHORIT Y OF THE DEP ARTMEN T TO SEE K IN J UN CTI VE RELIEF OR TO ENF ORCE THE PROVISIONS OF THE ACT AND THE REGULATIO NS PROMULGATED UN DER THE ACT.
