The United States Environmental Protection Agency (EPA) has granted "final interim" approval of Michigan's program for issuance of renewable operating permits (ROPs) required under Title V of the federal Clean Air Act. Title V provides that all major sources of air pollution must obtain an ROP that sets forth the emission standards, monitoring and recordkeeping requirements, and other regulatory standards that apply to the source. A major source is one that has the potential to emit 10 tons per year (TPY) of any single hazardous air pollutant (HAP); 25 TPY of any combination of HAPs; or 100 TPY of lead, sulfur dioxide, nitrogen oxides, carbon monoxide, particulate matter, volatile organic compounds or other regulated pollutants. Each state is required to promulgate rules to establish a state-run ROP program, subject to EPA approval. (For a discussion of amendments to Michigan's ROP rules, see Michigan Environmental Compliance Update, December 1996, p. 5.)
EPA's interim approval of Michigan's ROP program takes effect February 10 and remains effective through February 10, 1999. If Michigan does not obtain final approval by that time, sources in Michigan will be required to apply to EPA, not the state, for ROPs. The state may be subject to federal sanctions as well, including the withholding of certain federal highway funds and new restrictions on certain new emission sources.
In a Federal Register notice announcing the "final interim" approval, EPA states that several issues must be resolved before EPA will grant final approval to the Michigan program. Among the issues raised by EPA are provisions in Michigan's environmental audit privilege and immunity law precluding fines and the release of certain information to governmental authorities, and inconsistencies between Michigan's startup, shutdown and malfunction (SSM) rules and federal requirements.
EPA outlined several issues that must be resolved with regard to the Environmental Audit Privilege and Immunity section (Part 148) of the state Natural Resources and Environmental Protection Act. Under Part 148 the results of environmental audits can be protected from disclosure to government authorities and others. In addition, under Part 148 a company that discloses violations uncovered during an audit to a government agency and meets certain criteria may be immune from civil sanctions for those violations. The Clean Air Act requires that states implementing ROP programs have authority to assure compliance with ROP requirements and recover civil penalties from a source that does not comply. EPA contends that Part 148 prevents the state from having such authority and from obtaining information on violations. Thus, EPA has stated that it will not grant final approval to the Michigan program until either Part 148 is revised to meet EPA's concerns or the Attorney General of Michigan formally opines that Part 148 does not conflict with Title V of the CAA.
EPA is requiring that the state revise its SSM provisions to conform to federal emergency defense provisions or "eliminate the SSM defenses in favor of an enforcement discretion approach whereby Michigan may exercise discretion not to take enforcement against sources that experience excess emissions during SSM conditions."
EPA also said it will not grant final approval until: (1) the state definitions of "schedule of compliance" and "stationary source" are revised to conform with federal requirements; (2) the state ROP rules are revised to require certain non-major solid waste incineration units to obtain ROPs, to require that permit applications include a certification of compliance, and to delete exemptions of certain activities when determining major source status; and (3) the Air Pollution Control section (Part 55) of NREPA is revised to delete penalty exemptions for "violations caused by an act of God, war, strike, riot, catastrophe, or other condition as to which negligence or willful misconduct was not the proximate cause."
62 Federal Register 1387 (January 10, 1997)
This article was written by S. Lee Johnson, an associate in our Environmental Department. and appeared in the February, 1997 issue of our newsletter, Michigan Environmental Compliance Update, published by M. Lee Smith Publishers.