[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 [www.gpo.gov]
[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 https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. 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 www2.epa.gov/dockets/commenting-epa-dockets.

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 [email protected].

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:
     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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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
     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]
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