Proposed Rule2022-12069
Air Plan Approval; Kentucky; Removal of Excess Emissions Provisions
Primary source
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Published
June 7, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the Kentucky Energy and Environment Cabinet (Cabinet), on November 17, 2016, on behalf of the Commonwealth of Kentucky (Commonwealth). The revision was submitted in response to the EPA's SIP call published on June 12, 2015, concerning excess emissions during startup, shutdown, and malfunction (SSM) events. The submittal requests the revision of provisions identified in the 2015 SIP call for the Kentucky SIP. EPA is proposing to approve the SIP revision and proposing to determine that such SIP revision corrects the deficiencies identified in the June 12, 2015 SIP call.
Full Text
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<title>Federal Register, Volume 87 Issue 109 (Tuesday, June 7, 2022)</title>
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[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Proposed Rules]
[Pages 34612-34614]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12069]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R4-OAR-2022-0225; FRL-9912-01-R4]
Air Plan Approval; Kentucky; Removal of Excess Emissions
Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
Kentucky Energy and Environment Cabinet (Cabinet), on November 17,
2016, on behalf of the Commonwealth of Kentucky (Commonwealth). The
revision was submitted in response to the EPA's SIP call published on
June 12, 2015, concerning excess emissions during startup, shutdown,
and malfunction (SSM) events. The submittal requests the revision of
provisions identified in the 2015 SIP call for the Kentucky SIP. EPA is
proposing to approve the SIP revision and proposing to determine that
such SIP revision corrects the deficiencies identified in the June 12,
2015 SIP call.
DATES: Comments must be received on or before July 7, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R4-
OAR-2022-0225 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://regulations.gov">regulations.gov</a>. EPA may publish any comment
received to its public docket. Do not electronically submit 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, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit <a href="http://www2.epa.gov/dockets/commenting-epa-dockets">www2.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Estelle Bae, Air Permitting Section,
Air
[[Page 34613]]
Planning and Implementation Branch, Air and Radiation Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW,
Atlanta, Georgia 30303-8960. Ms. Bae can be reached by telephone at
(404) 562-9143 or via electronic mail at <a href="/cdn-cgi/l/email-protection#543635317a31272031383831143124357a333b22"><span class="__cf_email__" data-cfemail="4e2c2f2b602b3d3a2b22222b0e2b3e2f60292138">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On February 22, 2013, the EPA issued a Federal Register notice of
proposed rulemaking (NPRM) outlining EPA's policy at the time with
respect to SIP provisions related to periods of SSM. 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 document supplementing and revising what the Agency had
previously proposed on February 22, 2013, in light of a United States
Court of Appeals for the District of Columbia Circuit decision that
determined the CAA precludes authority of EPA to create affirmative
defense provisions applicable to private civil suits. EPA outlined 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 proposed SIP calls for
those provisions where appropriate. See 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 (February 22, 2013).
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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,'' hereinafter referred to as the ``2015 SSM SIP Action.''
See 80 FR 33839 (June 12, 2015). The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 States, including Kentucky, 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.
States were required to submit corrective revisions to their SIPs in
response to the SIP calls by November 22, 2016.
EPA issued a memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\2\ 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 Kentucky 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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\2\ 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).\3\ 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.\4\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
regarding EPA's plans to review and potentially modify or withdraw
particular SIP calls. That statement no longer reflects EPA's intent.
EPA intends to implement the principles laid out in the 2015 SSM SIP
Action as the Agency takes action on SIP submissions, including this
SIP submittal provided in response to the 2015 SIP call.
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\3\ 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.
\4\ See 80 FR 33839, 33985.
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With regard to the Kentucky SIP, in the 2015 SSM SIP Action, EPA
determined that 401 Kentucky Administrative Regulations (KAR) 50:055
section 1(1) was substantially inadequate to meet CAA requirements. See
80 FR 33839, 33963 (June 12, 2015). This provision states, ``Emissions
which, due to shutdown or malfunctions, temporarily exceed the standard
set forth by the cabinet shall be deemed in violation of such standards
unless the requirements of this section are satisfied and the
determinations specified in subsection (4) of this section are made.''
The rationale underlying EPA's determination that 401 KAR 50:055
section 1(1) is substantially inadequate to meet CAA requirements, and
therefore should be included in the 2015 SIP call to remedy the
deficiency, is detailed in the 2015 SSM SIP Action and the accompanying
proposals.
Kentucky submitted a SIP revision on November 17, 2016, in response
to the SIP call issued in the 2015 SSM SIP Action. In its submission,
Kentucky is requesting that EPA revise the Kentucky SIP by removing 401
KAR 50:055 section 1(1) and section 1(4) in their entirety from the
Kentucky SIP and retaining the remaining regulatory provisions, as
approved on May 4, 1989.\5\
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\5\ See 54 FR 19169 (May 4, 1989).
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II. Analysis of Kentucky's SIP Submission
Kentucky's November 17, 2016, SIP revision requests that EPA remove
two provisions in their entirety from the SIP. First, Kentucky is
requesting that EPA remove the SIP-called provision, 401 KAR 50:055
section 1(1), from the SIP as discussed above. Second, the Commonwealth
is also requesting that EPA remove 401 KAR 50:055 section 1(4) from the
Kentucky SIP. This provision states the following:
(4) A source shall be relieved from compliance with the standards
set forth by the cabinet if the director determines, upon a showing by
the owner or operator of the source, that:
(a) The malfunction or shutdown and ensuing start-up did not result
from the failure by the owner or operator of the source to operate and
maintain properly the equipment;
[[Page 34614]]
(b) All reasonable steps were taken to correct, as expeditiously as
practicable, the conditions causing the emissions to exceed the
standards, including the use of off shift labor and overtime if
necessary;
(c) All reasonable steps were taken to minimize the emissions and
their effect on air quality resulting from the occurrence;
(d) The excess emissions are not part of a recurring pattern
indicative of inadequate design, operation, or maintenance; and
(e) The malfunction or shutdown and ensuing start-up was not caused
entirely or in part by poor maintenance, careless operation or any
other preventable upset conditions or equipment breakdown.
Although EPA did not include 401 KAR 50:055 section 1(4) in the SIP
call with the 2015 SSM SIP Action, the provision is referenced within
the SIP-called provision, 401 KAR 50:055 section 1(1), and removing it
from the SIP is consistent with the 2015 SSM SIP Action. Kentucky's
submittal states that 401 KAR 50:055 section 1(1) and section 1(4) will
remain in the Commonwealth's regulations to be enforceable as state-
only provisions.\6\
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\6\ Once removed from the SIP, 401 KAR 50:055 sections 1(1) and
1(4) will apply to Kentucky in exercising its enforcement authority
for state-law purposes only. Citizens and EPA may seek injunctive
relief or civil penalties for excess emissions, as 401 KAR 50:055
sections 1(1) and 1(4) will not be in the Kentucky SIP.
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Based on Kentucky's request to remove 401 KAR 50:055 section 1(1)
and section 1(4) from the Kentucky SIP, EPA proposes to find that
Kentucky's November 17, 2016, SIP revision is consistent with CAA
requirements and adequately addresses the specific deficiencies that
EPA identified in the 2015 SSM SIP Action with respect to the Kentucky
SIP.
III. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
amended regulatory text that includes incorporation by reference. EPA
is proposing to remove the incorporation by reference of specific
provisions under 401 KAR 50:055, General Compliance Requirements.
Specifically, EPA is proposing the removal of 401 KAR 50:055 section
1(1) and section 1(4) from the Kentucky SIP, which is incorporated by
reference in accordance with requirements of 1 CFR 51.5. EPA has made,
and will continue to make, the SIP generally available at the EPA
Region 4 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
IV. Proposed Action
EPA is proposing to approve the Commonwealth's November 17, 2016,
SIP submission requesting removal of 401 KAR 50:055 section 1(1) and
section 1(4) from the Kentucky SIP. EPA is proposing approval of the
SIP revision because the Agency has determined that it is consistent
with the requirements for SIP provisions under the CAA. EPA is further
proposing to determine that such SIP revision corrects the deficiencies
identified in the June 12, 2015 SIP call. EPA is not reopening the 2015
SSM SIP Action and is taking comment only on whether this SIP revision
is consistent with CAA requirements and whether it addresses the
substantial inadequacy in the specific Kentucky SIP provision (401 KAR
50:055 section 1(1)) identified in the 2015 SSM SIP Action.
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. See 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. This action merely
proposes to approve State law as meeting Federal requirements and does
not impose additional requirements beyond those imposed by State law.
For that reason, this proposed 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).
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, this
rulemaking does not have tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000), nor will it impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 31, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-12069 Filed 6-6-22; 8:45 am]
BILLING CODE 6560-50-P
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