[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 [www.gpo.gov]
[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 https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. 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, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov 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 
SO2 Section, EPA Region 6 Office, 1201 Elm Street, Suite 
500, Dallas, Texas 75270, (214) 665-6691, [email protected]. We 
encourage the public to submit comments via https://www.regulations.gov. 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 www.regulations.gov, 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.6 7 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\ https://www.census.gov/quickfacts/fact/table/pulaskicountyarkansas,AR,US/PST045222.
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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 www.regulations.gov 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:
     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);
     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

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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
     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]
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