Proposed Rule2023-15344
Air Approval Plan; Arkansas; Excess Emissions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 21, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is proposing to approve two revisions to the Arkansas State Implementation Plan (SIP) submitted by the Governor of the State of Arkansas on May 12, 2022, and November 1, 2022. The revisions were submitted in response to a finding of substantial inadequacy and SIP call published by EPA on June 12, 2015, which included certain provisions in the Arkansas SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. The submittals request the removal of the provisions identified in the 2015 SIP call from the Arkansas SIP. EPA is proposing to determine that the removal of these substantially inadequate provisions from the SIP will correct the deficiencies in the Arkansas SIP identified in the June 12, 2015 SIP call.
Full Text
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<title>Federal Register, Volume 88 Issue 139 (Friday, July 21, 2023)</title>
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[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Proposed Rules]
[Pages 47095-47098]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15344]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2022-0605; FRL-11128-01-R6]
Air Approval Plan; Arkansas; Excess Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the
Environmental Protection Agency (EPA) is proposing to approve two
revisions to the Arkansas State Implementation Plan (SIP) submitted by
the Governor of the State of Arkansas on May 12, 2022, and November 1,
2022. The revisions were submitted in response to a finding of
substantial inadequacy and SIP call published by EPA on June 12, 2015,
which included certain provisions in the Arkansas SIP related to excess
emissions during startup, shutdown, and malfunction (SSM) events. The
submittals request the removal of the provisions identified in the 2015
SIP call from the Arkansas SIP. EPA is proposing to determine that the
removal of these substantially inadequate provisions from the SIP will
correct the deficiencies in the Arkansas SIP identified in the June 12,
2015 SIP call.
DATES: Comments must be received on or before August 21, 2023.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2022-0605 at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#d380bbb2a1fd92bfb2bd93b6a3b2fdb4bca5"><span class="__cf_email__" data-cfemail="fcaf949d8ed2bd909d92bc998c9dd29b938a">[email protected]</span></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>. The 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. The 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 Mr. Alan Shar, (214) 665-
6691, <a href="/cdn-cgi/l/email-protection#5a09323b28741b363b341a3f2a3b743d352c"><span class="__cf_email__" data-cfemail="f4a79c9586dab598959ab4918495da939b82">[email protected]</span></a>. 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://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a> and in hard copy at the EPA
Region 6 Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270. While
all documents in the docket are listed in the index, some information
may be publicly available only at the hard copy location (e.g.,
copyrighted material), and some may not be publicly available at either
location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Regional Haze and
SO<INF>2</INF> Section, EPA Region 6 Office, 1201 Elm Street, Suite
500, Dallas, Texas 75270, (214) 665-6691, <a href="/cdn-cgi/l/email-protection#1e4d767f6c305f727f705e7b6e7f30797168"><span class="__cf_email__" data-cfemail="590a31382b7718353837193c2938773e362f">[email protected]</span></a>. We
encourage the public to submit comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Please call or email the contact listed above if
you need alternative access to material indexed but not provided in the
docket.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
Table of Contents
I. Background
A. EPA's 2015 SSM SIP Action
B. Arkansas Regulation 19.1004(H) Malfunctions, Breakdowns,
Upsets and Regulation 19.602 Emergency Conditions
II. Analysis of SIP Submission
III. Proposed Action
IV. Environmental Justice Considerations
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background
A. EPA's 2015 SSM SIP Action
On February 22, 2013, EPA issued a Federal Register proposed
rulemaking action 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 D.C. 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 (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).
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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 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 Arkansas, were substantially inadequate to meet
CAA requirements and issued a SIP call to those states to
[[Page 47096]]
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. The detailed
rationale for issuing the SIP call to Arkansas can be found in the 2015
SSM SIP Action and preceding proposed actions.
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 Arkansas 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
populations, including overburdened communities, impacted 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 of 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 the two Arkansas SIP submittals provided by the
State 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\ Section J, June 12, 2015 (80 FR 33985).
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B. Arkansas Regulation 19.1004(H) Malfunctions, Breakdowns, Upsets and
Regulation 19.602 Emergency Conditions
Rules of the Arkansas Plan of Implementation for Air Pollution
Control (Rule 19), Regulation 19.1004(H) Malfunctions, Breakdowns,
Upsets (Reg. 19.1004(H)) and Regulation 19.602 Emergency Conditions
(Reg. 19.602) were originally approved by EPA on October 16, 2000 (65
FR 61103), and became federally effective on November 15, 2000. The EPA
found that Reg. 19.1004(H) provided an automatic exemption for excess
emissions of Volatile Organic Compounds (VOC) for sources located in
Pulaski County that occur due to malfunctions and that Reg. 19.602
provided an affirmative defense for excess emissions that occur during
emergency conditions. As a part of EPA's 2015 SSM SIP Action, EPA made
a finding that these provisions (Regs. 19.1004(H) and 19.602) in the
Arkansas SIP are substantially inadequate as they provide for an
automatic exemption and an affirmative defense, respectively, from
otherwise applicable SIP emissions limits, and thus issued a SIP call
with respect to these two provisions. On January 12, 2022, EPA issued
Findings of Failure to Submit (FFS) to 12 air agencies, including the
State of Arkansas, that had not submitted SIPs responding to the 2015
SSM SIP call by the November 22, 2016, deadline per the requirements of
section 110(k)(5) of the Act.\5\
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\5\ Findings of Failure To Submit State Implementation Plan
Revisions in Response to the 2015 Findings of Substantial Inadequacy
and SIP Calls To Amend Provisions Applying To Excess Emissions
During Periods of Startup, Shutdown, and Malfunction, 87 FR 1680
(Jan. 12, 2022), available at <a href="http://www.regulations.gov">www.regulations.gov</a>, Docket ID No.
EPA-HQ-OAR-2021-0863.
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II. Analysis of SIP Submission
Subsequent to EPA's January 12, 2022 FFS, Arkansas submitted two
SIP revisions on May 12, 2022, and November 1, 2022, requesting the
removal of both SIP-called provisions--Reg. 19.1004(H) and Reg. 19.602
of Rule 19, respectively--from the EPA-approved Arkansas
SIP.<SUP>6 7</SUP> We note that Arkansas has repealed and removed Reg.
19.1004(H) under State law; however, Reg. 19.602 remains as a state-
only provision applicable only under the Arkansas law. The Reg. 19.602
provisions do not apply to actions brought by EPA or citizens to
enforce excess emission violations.\8\
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\6\ The May 12, 2022 submittal included other revisions to Rule
19 which will be handled in a separate SIP rulemaking action(s); the
only aspect of the May 12, 2022 submittal that is being addressed by
this proposed rulemaking now is the removal of Reg. 1004(H) from the
Arkansas SIP. The November 1, 2022 submittal requests EPA approval
of the removal of Reg. 19.602 from the Arkansas SIP, and this
proposed rulemaking is taking action on that request.
\7\ These SIP submittals were found to be administratively
complete on May 1, 2023. See ``AR SSM Completeness Letter''
available in the docket for this rulemaking.
\8\ CAA sections 113 and 304; see 80 FR 33958 (June 12, 2015).
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Removal of Reg. 19.1004(H) from the EPA-approved Arkansas SIP will
eliminate the impermissible automatic exemption from applicable SIP
emissions limits for VOC sources located in Pulaski County. Also,
removal of Reg. 19.602 from the EPA-approved Arkansas SIP will
eliminate an owner or operator's ability to assert an affirmative
defense to violations of applicable SIP emissions limits resulting from
excess emissions during SSM events.
These revisions (removal of Reg. 19.1004(H) and Reg. 19.602) will
not otherwise affect the adequacy of the remaining portions of the
Arkansas SIP. EPA concurs with this State action and is proposing to
approve removing these substantially inadequate SIP-called provisions
(Reg. 19.1004(H) and Reg. 19.602) from the EPA-approved Arkansas SIP.
The Arkansas submittal includes an analysis to demonstrate
compliance with Section 110(l) of the Act.\9\ Removal of Reg. 19.602
from the Arkansas SIP is not expected to lead to any emissions increase
and, therefore, would not interfere with the State's ability to attain
or maintain state or federal standards or reasonable further progress.
This approach is consistent with the analogy presented in EPA's Example
1 at 80 FR 33975 of the 2015 SSM SIP Action. Likewise, removal of Reg.
19.1004(H) from the Arkansas SIP is not expected to lead to any
emissions increase and, therefore, would not interfere with the State's
ability to attain or maintain state or federal standards or reasonable
further progress. Consequently, EPA is proposing to approve the removal
of Reg. 19.602 and Reg. 19.1004(H) from the EPA-approved Arkansas SIP.
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\9\ See pdf pages 36-37 of the November 1, 2022 submittal.
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III. Proposed Action
EPA is proposing to approve revisions to the Arkansas SIP submitted
by the State of Arkansas on May 12, 2022, and November 1, 2022,
following EPA's FFS
[[Page 47097]]
concerning excess emissions during periods of SSM. Specifically, we are
proposing to approve the removal of Reg. 19.1004(H) Malfunctions,
Breakdowns, Upsets and Reg. 19.602 Emergency Conditions of Rule 19 of
the Arkansas SIP. We are proposing to approve these revisions in
accordance with section 110 of the Act. EPA is further proposing to
determine that such SIP revisions correct the substantial inadequacies
in the Arkansas SIP as identified in the 2015 SSM SIP Action and in
response to EPA's 2022 FFS Action. EPA is not reopening the 2015 SSM
SIP Action and is only taking comment on whether this proposed SIP
revision is consistent with CAA requirements and whether it addresses
the substantial inadequacy in the provisions of the Arkansas SIP
identified in the 2015 SSM SIP Action.
IV. Environmental Justice Considerations
Although not a basis for this proposed action, EPA is providing
additional information, for informational purposes only, regarding this
proposed action and potentially impacted populations. EPA reviewed
demographic data, which provides an assessment of individual
demographic groups of the populations living within the affected
Pulaski County area, as well as the State of Arkansas as a whole.\10\
EPA then compared this data to the national average for each of the
demographic groups. The results of the demographic analysis indicate
that, for populations within Arkansas, the percent people of color
(persons who reported their race as a category other than white alone
(not Hispanic or Latino)) is above the national average for Pulaski
County; and below the national average for the State of Arkansas as a
whole (49.3 and 29.7 percent, respectively versus 41.7 percent). The
percent of the population that is Black or African American alone is
significantly above the national average for Pulaski County and above
the national average for the State as a whole (38.3 and 15.7 percent,
respectively versus 13.6 percent), and the percent of the population
that is American Indian/Alaska Native is below the national average for
both Pulaski County and the State as a whole (0.5 and 1.1 percent,
respectively versus 1.3 percent). The percent of people living below
the poverty level in Pulaski County and the State as a whole is higher
than the national average (17.6 and 16.3 percent, respectively versus
11.6 percent). The percent of people over 25 with a high school diploma
is above the national average for Pulaski County; and is similar to the
national average for the State of Arkansas as a whole (91.5 percent and
87.7 percent, respectively versus 88.9 percent), while the percent with
a Bachelor's degree or higher is above the national average for Pulaski
County; and is lower than the national average for the State of
Arkansas as a whole (36.3 percent and 24.3 percent, respectively versus
33.7 percent).
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\10\ <a href="https://www.census.gov/quickfacts/fact/table/pulaskicountyarkansas,AR,US/PST045222">https://www.census.gov/quickfacts/fact/table/pulaskicountyarkansas,AR,US/PST045222</a>.
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Communities in close proximity to and/or downwind of industrial
sources may be subject to disproportionate environmental impacts of
excess emissions. Short- and/or long-term exposure to air pollution has
been associated with a wide range of human health effects including
increased respiratory symptoms, hospitalization for heart or lung
diseases, and even premature death. Excess emissions during SSM
activities exceed applicable emission limitations and can be
considerably higher than emissions under normal steady-state
operations. As to all population groups within the State of Arkansas,
as explained below, we believe that this proposed action will be
beneficial and may reduce impacts. As discussed earlier in this
document, this rulemaking, if finalized as proposed, would result in
the removal of identified provisions in the Arkansas SIP that provide
sources emitting pollutants in excess of otherwise allowable amounts to
be automatically exempt or be allowed to assert an affirmative defense
for violations involving excess emissions during SSM activities.
Federal removal of such impermissible automatic exemptions or
impermissible affirmative defense provisions from the SIP is necessary
to preserve the enforcement structure of the CAA, to preserve the
jurisdiction of courts to adjudicate questions of liability and
remedies in judicial enforcement actions and to preserve the potential
for enforcement by the EPA and other parties under the citizen suit
provision as an effective deterrent to violations. If finalized as
proposed, this action is intended to ensure that overburdened
communities and affected populations across the State and downwind
areas receive the full human health and environmental protection
provided by the CAA. There is nothing in the record which indicates
that this proposed action, if finalized, would have disproportionately
high or adverse human health or environmental effects on communities
with environmental justice concerns.
V. Incorporation by Reference
In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, the EPA is proposing to remove the
incorporation by reference of Reg. 19.1004(H) Malfunctions, Breakdowns,
Upsets and Reg. 19.602 Emergency Conditions of Rule 19 of the Arkansas
SIP, as described in the Proposed Action section above. The EPA has
made, and will continue to make, these documents generally available
electronically through <a href="http://www.regulations.gov">www.regulations.gov</a> and in hard copy at the EPA
Region 6 office.
VI. Statutory and Executive Order Reviews
Under the Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act 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 Act. Accordingly, 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 action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993), 13563 (76 FR 3821, January 21,
2011), and 14094 (88 FR 21879, April 11, 2023);
<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
[[Page 47098]]
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those requirements would be inconsistent with
the Act; and
<bullet> Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to
identify and address ``disproportionately high and adverse human health
or environmental effects'' of their actions on minority populations and
low-income populations to the greatest extent practicable and permitted
by law. EPA defines environmental justice (EJ) as ``the fair treatment
and meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' The air agency did
not evaluate environmental justice considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. The EPA performed an
environmental justice analysis, as is described above in the section
titled, ``Environmental Justice Considerations.'' The analysis was done
for the purpose of providing additional context and information about
this rulemaking to the public, not as a basis of the action. Due to the
nature of the action being taken here, this action is expected to have
a neutral to positive impact on the air quality of the affected area by
removal of an automatic exemption provision and an affirmative defense
provision from the Arkansas SIP. In addition, there is no information
in the record upon which this decision is based inconsistent with the
stated goal of Executive Order (E.O.) 12898 of achieving environmental
justice for people of color, low-income populations, and Indigenous
peoples.
This proposed approval of a revision to the Arkansas SIP removing
provisions providing an exemption and an affirmative defense to excess
emission violations has no tribal implications as specified in E.O.
13175 (65 FR 67249, November 9, 2000). This action will neither impose
substantial direct compliance costs on federally recognized tribal
governments, nor preempt tribal law. This action will not impose
substantial direct compliance costs on federally recognized tribal
governments because no actions will be required of tribal governments.
This action will also not preempt tribal law as it does not have
applicable or related tribal laws.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting
and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 13, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-15344 Filed 7-20-23; 8:45 am]
BILLING CODE 6560-50-P
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