Proposed Rule2022-09130
Air Plan Approval; Indiana, Michigan and Minnesota; Revised Startup, Shutdown, and Malfunction Provisions
Primary source
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Published
May 5, 2022
Issuing agencies
Environmental Protection Agency
Abstract
EPA is proposing to approve three State Implementation Plan (SIP) revision requests, submitted by Indiana, Michigan, and Minnesota. All three states submitted the SIP revision requests in 2016 in response to a finding of substantial inadequacy and a SIP call published on June 12, 2015, for specific provisions in each state's SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. Each of these SIP submissions was submitted independently and EPA is analyzing them individually. However, EPA is packaging the proposed approvals together in a single action both for administrative efficiency and because EPA's action approving the revisions consistently applies EPA's national policy regarding SSM provisions in SIPs. EPA is proposing approval of these SIP submissions and proposing to determine that each submission corrects the state's respective SIP deficiencies as identified in the June 12, 2015, SIP call.
Full Text
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<title>Federal Register, Volume 87 Issue 87 (Thursday, May 5, 2022)</title>
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[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Proposed Rules]
[Pages 26707-26710]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09130]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2016-0672; EPA-R05-OAR-2016-0706; EPA-R05-OAR-2016-0708;
FRL-9649-01-R5]
Air Plan Approval; Indiana, Michigan and Minnesota; Revised
Startup, Shutdown, and Malfunction Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve three State Implementation Plan
(SIP) revision requests, submitted by Indiana, Michigan, and Minnesota.
All three states submitted the SIP revision requests in 2016 in
response to a finding of substantial inadequacy and a SIP call
published on June 12, 2015, for specific provisions in each state's SIP
related to excess emissions during startup, shutdown, and malfunction
(SSM) events. Each of these SIP submissions was submitted independently
and EPA is analyzing them individually. However, EPA is packaging the
proposed approvals together in a single action both for administrative
efficiency and because EPA's action approving the revisions
consistently applies EPA's national policy regarding SSM provisions in
SIPs. EPA is proposing approval of these SIP submissions and proposing
to determine that each submission corrects the state's respective SIP
deficiencies as identified in the June 12, 2015, SIP call.
DATES: Comments must be received on or before June 6, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0672 (Indiana); EPA-R05-OAR-2016-0706 (Michigan); or EPA-R05-
OAR-2016-0708 (Minnesota) at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or via email
to <a href="/cdn-cgi/l/email-protection#b4d6d8d5dfd8d1cd9ac4d5d9d1d8d5f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="3b59575a50575e42154b5a565e575a7b5e4b5a155c544d">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>,
follow the online instructions for
[[Page 26708]]
submitting comments. Once submitted, comments cannot be edited or
removed from <a href="http://Regulations.gov">Regulations.gov</a>. For either manner of submission, EPA may
publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). For additional submission methods, please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section. For the full EPA public comment policy, information about CBI
or multimedia submissions, and general guidance on making effective
comments, please visit <a href="https://www2.epa.gov/dockets/commenting-epa-dockets">https://www2.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-5954; <a href="/cdn-cgi/l/email-protection#6e1e011c1a0f0001180f40030f1c172e0b1e0f40090118"><span class="__cf_email__" data-cfemail="c1b1aeb3b5a0afaeb7a0efaca0b3b881a4b1a0efa6aeb7">[email protected]</span></a>. The
EPA Region 5 office is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and facility closures due to COVID-
19.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. What is the background for EPA's proposed action?
On February 22, 2013 (78 FR 12460), EPA published a Federal
Register notice of proposed rulemaking outlining the agency's policy at
the time with respect to SIP provisions related to periods of SSM. This
policy stated that director's discretion and automatic exemption
provisions for periods of SSM were impermissible under the Clean Air
Act (CAA), but that appropriately drawn affirmative defense provisions
may be permissible under certain circumstances. EPA analyzed specific
SSM SIP provisions and explained how each one either did or did not
comply with the CAA with regard to excess emission events.\1\ For each
SIP provision that EPA determined to be inconsistent with the CAA, EPA
proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
supplementary notice of proposed rulemaking that revised what the
Agency had previously proposed on February 22, 2013, in light of a
decision by the U.S. Court of Appeals for the District of Columbia
Circuit that determined the CAA precludes authority of the EPA to
create affirmative defense provisions applicable to private civil
suits.\2\ EPA outlined in its updated policy that affirmative defense
SIP provisions are not consistent with CAA requirements. EPA proposed
in the supplemental proposal document to apply its revised
interpretation of the CAA to specific affirmative defense SIP
provisions and to propose SIP calls for those provisions where
appropriate (79 FR 55920, September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
\2\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir.2014).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemptions and
affirmative defense SIP provisions are inconsistent with CAA
requirements.
The 2015 SSM SIP Action found that certain SIP provisions in 36
states, including Indiana, Michigan, and Minnesota, were substantially
inadequate to meet CAA requirements and issued a SIP call to those
states to submit SIP revisions to address the inadequacies. EPA
established an 18-month deadline by which the affected states had to
submit such SIP revisions. The detailed rationale for issuing the SIP
calls to Indiana, Michigan, and Minnesota can be found in the 2015 SSM
SIP Action and preceding proposed actions. States were required to
submit corrective revisions to their SIPs in response to the SIP calls
by November 22, 2016. Indiana submitted a SIP revision request in
response to the SIP call on November 14, 2016, and supplemented it on
January 31, 2017. Michigan submitted a SIP revision request in response
to the SIP call on November 15, 2016, and supplemented it on February
7, 2017. Minnesota submitted a SIP revision request in response to the
SIP call on November 22, 2016, and supplemented it on February 10,
2017. This proposal addresses all three of these SIP submittals in a
consolidated action.
In October 2020, EPA issued a Memorandum (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\3\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Indiana, Michigan, and Minnesota in 2015. The
2020 Memorandum did, however, indicate EPA's intent at the time to
review SIP calls that were issued in the 2015 SSM SIP Action to
determine whether EPA should maintain, modify, or withdraw particular
SIP calls through future agency actions.
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\3\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including minority, low-income and
indigenous populations overburdened by air pollution, receive the full
health and environmental protections provided by the CAA.\5\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's
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intent. EPA intends to implement the principles laid out in the 2015
SSM SIP Action as the agency takes action on SIP submissions, including
the three state SIP submittals provided in response to the 2015 SSM SIP
Action which are addressed in this consolidated proposal.
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\4\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\5\ 80 FR 33985, June 12, 2015.
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II. EPA's Analysis of the States' Submissions
Indiana
In the 2015 SSM SIP Action, EPA determined that a provision in the
Indiana SIP was substantially inadequate to meet CAA requirements.
Indiana's SIP rules are codified in the Indiana Administrative Code
(IAC). Indiana's rule 326 IAC 1-6-4(a) provided a director's discretion
exemption from the otherwise applicable SIP emission limitations during
malfunctions. EPA determined that the Indiana rule was inconsistent
with the requirements of the CAA for the reasons explained in Section
IX.F.2 of the 2015 SSM SIP Action.\6\
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\6\ Although the 2015 SSM SIP Action describes Indiana's rule 1-
6-4(a) ``generally applicable,'' the actual rule applies only to
non-major sources. It does not apply to larger facilities that have
major source operating permits pursuant to title V of the CAA and 40
CFR part 70.
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Indiana submitted its SIP revision request pursuant to the 2015 SSM
SIP Action on November 14, 2016 and supplemented it on January 31,
2017. Indiana removed the provisions in 326 IAC 1-6-4(a) that provided
for discretionary exemptions. The state removed language that read in
part, ``Emissions temporarily exceeding the standards which are due to
malfunctions of facilities or emission control equipment shall not be
considered a violation of the rules provided that the source
demonstrates. . .'' [meeting a list of criteria]. Indiana also removed
language from 326 IAC 1-6-4(a)(1)-(4) which gave criteria that would
have allowed for the exemptions. The rule at 326 IAC 1-6-4 now reads:
``Source owners or operators shall operate and maintain all emission
control equipment and combustion process equipment or processes in
compliance with all applicable rules.'' Indiana's submittal also
included administrative revisions to other sections of rule 326 IAC 1-
6, (1-6-1, 1-6-2, 1-6-5, and 1-6-6), such as replacing the word
``shall'' with ``must'' or changing ``facility'' to ``emission unit''
or ``source''. In addition, Indiana revised and submitted a separate
general rule, 326 IAC 2-9-1, removing a reference to rule 326 IAC 1-6
applying during malfunctions. EPA is proposing to find that the revised
language in 326 IAC 1-6 and 326 IAC 2-9-1 addresses the deficiency
outlined in the 2015 SSM SIP Action for Indiana.
Michigan
In the 2015 SSM SIP Action, EPA determined that a provision in the
Michigan SIP, Michigan Administrative Code R 336.1916, (R 336.1916),
provided an affirmative defense to monetary penalties for violations of
otherwise applicable SIP limitations during startup and shutdown
periods and therefore was substantially inadequate to meet CAA SIP
requirements. EPA's rationale for this determination is explained in
Section IX.F.3 of the 2015 SSM SIP Action.
Michigan submitted its SIP revision request on November 15, 2016,
and supplemented it on February 7, 2017.\7\ Michigan revised and
curtailed the applicability of R 336.1916, and requested that EPA
remove it entirely from the Michigan SIP. Rule R 336.1916, as revised,
specifically cites a list of Michigan's air toxics rules and its
nuisance rule as the only rules to which the affirmative defense in R
336.1916 applies. The air toxics and nuisance rules are not part of
Michigan's criteria pollutant SIP. The revised rule R 336.1916 will
remain on Michigan's books, but as a state-only rule. EPA is proposing
to remove R 336.1916 from Michigan's federally enforceable criteria
pollutant SIP, per Michigan's request, because the rule no longer
applies to criteria pollutant emission limits. EPA is also proposing to
find that the removal of R 336.1916 would remove the SSM deficiency
from Michigan's SIP, and would fully address the 2015 SSM SIP Action.
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\7\ Michigan's 2017 submittal also requested SIP approval of
eight other revised SIP rules, unrelated to the 2015 SSM SIP Action.
EPA has addressed these rules in separate actions.
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Minnesota
In the 2015 SSM SIP Action, EPA determined that a provision in the
Minnesota SIP was substantially inadequate to meet CAA requirements.
The Minnesota rule, Minnesota Rule 7011.1415 (Minn. R. 7011.1415),
provided automatic exemptions for excess emissions resulting from
flared gas at petroleum refineries when the flaring is necessitated by
SSM events. EPA determined that the Minnesota rule was inconsistent
with the requirements of the CAA for the reasons more fully explained
in Section IX.F.4 of the 2015 SSM SIP Action.
Minnesota submitted its SIP revision request on November 22, 2016,
and supplemented it on February 10, 2017. Minnesota repealed Minn R.
7011.1415, effective December 27, 2016, and requested that EPA remove
Minn. R. 7011.1415 from the SIP. EPA is proposing to approve
Minnesota's SIP revision request because removing the deficient rule
from the Minnesota SIP responds fully to the 2015 SSM SIP Action.
In summary, in the 2015 SSM SIP Action, EPA found that the SIPs for
Indiana, Michigan, and Minnesota contained provisions that were
substantially inadequate to meet CAA requirements, and accordingly
issued a SIP call to the state to revise those SIP provisions. In
response, Indiana, Michigan, and Minnesota have submitted SIP revision
requests. In this action, EPA proposes to find that the SIP revisions
submitted by each of the three states remedy the issues identified in
EPA's 2015 SSM SIP Action, and therefore proposes to approve the SIP
submittals from all three states and, if the proposed action is
finalized, determine that the SIP call obligation issued in 2015 has
been fulfilled. In the case of Indiana, EPA is proposing to approve the
revised language in 326 IAC 1-6 and 326 IAC 2-9-1. In the cases of
Michigan and Minnesota, EPA is proposing to remove Michigan's R
336.1916 and Minn. R. 7011.1415 from the Michigan and Minnesota SIPs,
respectively. EPA is proposing to find that all three of these state
SIP revision requests meet the requirements of the CAA and address the
deficiencies in each SIP as outlined in EPA's 2015 SSM SIP Action.
III. What action is EPA proposing to take?
EPA is proposing to approve three SIP revision requests submitted
in 2016 and supplemented in 2017 by Indiana, Michigan, and Minnesota in
order to address EPA's 2015 SSM SIP Action. EPA is proposing to
determine that the three states' rulemaking actions and revised rules
are consistent with the SSM requirements for SIP provisions under the
CAA; that their respective SIP submissions correct the SSM deficiencies
identified for the state within EPA's 2015 SSM SIP Action; and fulfill
the obligation to respond to it.
EPA is not reopening the 2015 SSM SIP Action and is only taking
comment on whether each state's SIP revision addresses the finding of
substantial inadequacy for the respective SIP provisions identified in
the 2015 SSM SIP Action.
IV. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by
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reference. In accordance with the requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference Indiana rules 326 IAC 1-6-1, 326
IAC 1-6-2, 326 IAC 1-6-4, 326 IAC 1-6-5, 326 IAC 1-6-6; and 326 IAC 2-
9-1, effective January 29, 2017, as discussed in Section II of this
preamble. EPA has made, and will continue to make, these documents
generally available through <a href="http://www.regulations.gov">www.regulations.gov</a>, and at the EPA Region
5 Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
Also in this document, as described in section II of this preamble,
EPA is proposing to remove provisions of the EPA-Approved Michigan and
Minnesota Regulations and Statutes from the Michigan and Minnesota
SIPs, which are incorporated by reference in accordance with the
requirements of 1 CFR part 51.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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.
Dated: April 21, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-09130 Filed 5-4-22; 8:45 am]
BILLING CODE 6560-50-P
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