Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 33101 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2013–0272; FRL–9911–96- 

Region 4] 

Approval and Promulgation of 

Implementation Plans; Kentucky; 

Approval of Revisions to the Jefferson 

County Portion of the Kentucky SIP; 

Emissions During Startups, 

Shutdowns, and Malfunctions 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve part of a revision to the 

Kentucky State Implementation Plan 

(SIP), submitted by the Commonwealth 

of Kentucky, through the Kentucky 

Division for Air Quality (KDAQ), on 

March 22, 2011. The proposed revision 

was submitted by KDAQ on behalf of 

the Louisville Metro Air Pollution 

Control District (District), which has 

jurisdiction over Jefferson County, 

Kentucky. The portion of the revision 

that EPA is approving modifies the 

Regulation entitled ‘‘Emissions During 

Startups, Shutdowns, Malfunctions and 

Emergencies’’ in the Jefferson County 

portion of the Kentucky SIP. EPA is 

approving this portion of the March 22, 

2011, SIP revision because the Agency 

has determined that it is in accordance 

with the requirements for SIP provisions 

under the Clean Air Act (CAA or Act). 

EPA will act on the other portions of 

KDAQ’s March 22, 2011, submittal, 

which are severable and unrelated, in a 

separate action. EPA is also responding 

to comments received on its May 21, 

2013, proposed rulemaking. 

DATES: This rule will be effective July 

10, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2013–0272. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Joel 

Huey, Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Mr. Huey 

may be reached by phone at (404) 562– 

9104 or via electronic mail at huey.joel@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What action is EPA taking? 

II. What is the background for EPA’s action? 

III. What is EPA’s response to comments? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

EPA is approving a revision to the 

Jefferson County portion of the 

Kentucky SIP to incorporate revisions to 

Jefferson County Regulation 1.07, 

‘‘Emissions During Startups, 

Shutdowns, Malfunctions and 

Emergencies’’ (referred to hereafter as 

‘‘Rule 1.07’’). The revision modifies all 

seven sections of the existing version of 

Rule 1.07 currently in the EPAapproved SIP for Jefferson County. 

These changes to Rule 1.07 became 

effective in Jefferson County on July 1, 

2005. EPA believes that the changes to 

this rule are consistent with CAA 

requirements that apply to excess 

emissions during startup, shutdown and 

malfunction (SSM) events. In addition, 

EPA believes that these changes correct 

existing concerns about Rule 1.07 in the 

Jefferson County portion of the 

Kentucky SIP, as explained below. 

Please refer to the docket for this 

rulemaking for the complete text of the 

adopted provisions. 

II. What is the background for EPA’s 

action? 

On March 22, 2011, KDAQ submitted 

a request for EPA approval of a SIP 

submittal containing proposed revisions 

to the Regulation entitled ‘‘Emissions 

During Startups, Shutdowns, 

Malfunctions and Emergencies’’ in the 

Jefferson County portion of the 

Kentucky SIP. In an action published on 

May 21, 2013 (78 FR 29683), EPA 

proposed to approve the proposed 

revisions. As noted in that proposal 

notice, the Louisville Metro Air 

Pollution Control District proactively 

adopted changes on June 21, 2005, with 

the intent of correcting inconsistencies 

between its rule and the CAA and EPA 

guidance regarding SIP provisions that 

apply to the treatment of excess 

emissions that may occur during source 

SSM events. The changes to Rule 1.07, 

which were included in the March 22, 

2011, SIP revision provided to EPA by 

KDAQ, include: (1) Changing the name 

of the regulation from ‘‘Emissions 

During Startups, Shutdowns, 

Malfunctions and Emergencies’’ to 

‘‘Excess Emissions During Startups, 

Shutdowns, and Upset Conditions’’; (2) 

clarifying that excess emissions from a 

process or process equipment due to 

startup, shutdown, or upset (i.e., 

malfunction) condition shall be deemed 

in violation of the applicable emission 

standards; (3) removing the authority of 

the District to grant discretionary 

exemptions from compliance with SIP 

emission standards during SSM events; 

(4) augmenting the source excess 

emission reporting requirements to 

assist the District in evaluating whether 

ambient standards and goals have been 

exceeded and whether enforcement 

actions are needed to protect public 

health and welfare; and (5) removing the 

provisions that created exemptions for 

excess emissions during emergencies 

based upon factors comparable to an 

affirmative defense. 

III. What is EPA’s response to 

comments? 

EPA received numerous comments on 

the May 21, 2013, rulemaking proposing 

to approve a revision to the Regulation 

entitled ‘‘Emissions During Startups, 

Shutdowns, Malfunctions and 

Emergencies’’ in the Jefferson County 

portion of the Kentucky SIP. 

Specifically, the Louisville Gas and 

Electric and Kentucky Utilities Energy 

Company (LG&E) provided comments 

adverse to the proposed rulemaking, 

and a number of environmental 

organizations and approximately 74 

citizens provided comments supporting 

the proposed rulemaking. All of the 

comments received by EPA are included 

in the docket for today’s final action 

using Docket ID EPA–R04–OAR–2013– 

0272. A summary of the comments and 

EPA’s responses are provided below. 

The adverse comments provided by 

LG&E consist primarily of technical 

concerns associated with the 

administration of the revised version of 

Rule 1.07 during SSM events. These 

technical concerns, however, do not 

appear to have been raised by LG&E at 

earlier stages of the rulemaking process 

when these revisions were being 


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33102 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

1LG&E did provide comments to the 

Commonwealth, however, those comments did not 

reflect the issues raised here by the Company. See 

EPA Docket Number EPA–R04–OAR–2013–0272. 

2See Agreed Board Order No. 12–01, Louisville 

Metro Air Pollution Control Board, Incident Nos. 

05933 and 06082 regarding, among other things, 

failure to report excess particulate emissions from 

the sludge processing plant on five days in August 

2011. See EPA Docket Number EPA–R04–OAR– 

2013–0272. 

3See National Emission Standards for Hazardous 

Air Pollutant Emissions: Hard and Decorative 

Chromium Electroplating and Chromium Anodizing 

Tanks; and Steel Pickling-HCl Process Facilities and 

Hydrochloric Acid Regeneration Plants; Residual 

Risk and Technology Review; Final Rule (77 FR 

58219, September 19, 2012). 4See National Emission Standards for Hazardous 

Air Pollutant Emissions: Group IV Polymers and 

Resins; Pesticide Active Ingredient Production; and 

Polyether Polyols Production (79 FR 17339, March 

27, 2014). 5See, e.g., Policy on Excess Emissions During 

Startup, Shutdown, Maintenance, and 

Malfunctions, from Kathleen M. Bennett, Assistant 

Administrator for Air, Noise and Radiation to 

Regional Administrators, Regions I–X, September 

28, 1982. 6See, e.g., State Implementation Plans (SIPs): 

Policy Regarding Excess Emissions During 

Malfunctions, Startup, and Shutdown, from Steven 

A, Herman, Assistant Administrator for 

Enforcement and Compliance Assurance, and 

Robert Perciasepe, Assistant Administrator for Air 

and Radiation, to Regional Administrators, Regions 

I–X, September 20, 1999 (the 1999 SSM Policy). 

considered at the state level.1 EPA notes 

that these types of concerns are more 

appropriately raised first during the rule 

development process undertaken by a 

state, rather than later during EPA’s 

evaluation of a submitted SIP revision. 

Nevertheless, EPA has evaluated the 

specific technical concerns raised by the 

commenter, identified as comments 1 

through 8 below, and provides detailed 

responses. EPA has determined that the 

revisions to Rule 1.07 are consistent 

with the CAA and applicable EPA 

guidance, and therefore the Agency is 

approving these revisions into the 

Kentucky SIP as it applies to Jefferson 

County. 

Comment 1: The commenter asserted 

that the revised version of Rule 1.07 as 

‘‘written and presently enforced’’ is 

‘‘having a negative and unnecessary 

impact on LG&E and KU Energy LLC’s 

operations and customers’’ and that 

‘‘continued enforcement could have an 

escalated and even more detrimental 

impact on electric reliability and 

customer costs.’’ 

Response 1: The commenter provided 

no specific information supporting its 

contentions that the revised rule is 

having negative or unnecessary impacts 

on LG&E’s operations and customers. 

EPA is aware of one action taken by the 

District in recent years to enforce SIP 

requirements consistent with revised 

Rule 1.07 and two other Jefferson 

County rules at the LG&E Cane Run 

Power Plant in Louisville. That 

enforcement action resulted in a 

requirement that the source take 

corrective action and pay penalties 

pursuant to an administrative 

settlement.2 Such enforcement actions 

are intended to encourage better source 

compliance with applicable 

environmental regulations that are in 

place for the protection of the 

environment and human health. 

With respect to how the revised Rule 

1.07 is written, the revisions reflect the 

District’s decision to bring it into 

compliance with CAA requirements and 

thus warrant approval by EPA into the 

Commonwealth’s SIP. With respect to 

how the District elects to enforce SIP 

requirements consistent with Rule 1.07, 

that likewise reflects the District’s 

proper exercise of its enforcement 

discretion authority, consistent with 

CAA requirements. By contrast, EPA 

believes that SIP provisions that allow 

for automatic and discretionary 

exemptions for excess emissions during 

SSM events, such as those eliminated by 

the District in the revised version of 

Rule 1.07, allow facilities to be less 

diligent in minimizing pollutant 

emissions during such times and that 

this can result in unnecessary adverse 

impacts on citizens, including 

customers of LG&E. The commenter’s 

concern that it may be required to 

comply with SIP requirements as a 

result of the revisions to Rule 1.07 

through enforcement actions is not a 

basis for EPA to disapprove a SIP 

revision that complies with CAA 

requirements. 

Comment 2: The commenter claimed 

that the District’s assertion that an 

electric generating unit (EGU) should be 

able to operate in compliance with 

emission standards during startup, 

shutdown and upset periods is 

‘‘technically infeasible and goes against 

past EPA actions and findings 

pertaining to emissions during these 

periods.’’ 

Response 2: The commenter did not 

provide specific facts or information to 

support this broad claim regarding EGU 

operation. Furthermore, EPA disagrees 

with the basic premise stated by the 

commenter for multiple reasons. First, 

the commenter asserted that EGUs 

cannot operate in compliance with 

emission standards during startup and 

shutdown. EPA disagrees with this 

presumption. Startup and shutdown are 

normal modes of source operation, and 

it is technically feasible for sources to 

meet emission standards during such 

periods of operation. When appropriate, 

emission standards may entail 

imposition of different numerical levels 

or averaging periods allowed during 

startup and shutdown or may require 

imposition of different forms of 

emission control during startup and 

shutdown. Rather than allowing EGUs 

to have impermissible exemptions from 

applicable emission limits during SSM 

events, the District has elected to 

require sources to meet the applicable 

SIP emission limits at all times, and this 

decision is consistent with CAA 

requirements. 

Second, the commenter claimed that 

the District’s expectation that sources 

meet emission standards during startup 

and shutdown ‘‘goes against past 

Agency actions.’’ The commenter did 

not state which ‘‘Agency actions’’ it was 

referring to, and the commenter also 

failed to note that EPA’s own recent 

regulations pertaining to various source 

categories do in fact impose numerical 

emission limits upon sources that apply 

at all times, including startup, 

shutdown and malfunction periods. For 

example, in 2012 EPA amended the 

National Emission Standards for 

Hazardous Air Pollutant (NESHAP) 

Emissions for Steel Pickling-HCl Process 

Facilities by adding provisions requiring 

that the emission limits of the rule 

apply at all times, including during 

SSM periods.3 As a more recent 

example, EPA revised the NESHAPs for 

Group IV Polymers and Resins, 

Pesticide Active Ingredient Production, 

and Polyether Polyols Production by 

eliminating the exemption for SSM 

periods so that the emission standards 

in each rule apply at all times.4

Third, the commenter disregarded 

EPA’s longstanding interpretation of the 

CAA with respect to SIP provisions 

addressing emissions during SSM 

events. Since at least 1982, EPA’s 

interpretation of the CAA has been that 

periods of startup and shutdown of 

process equipment are part of the 

normal operation of a source and should 

be accounted for in the design and 

implementation or the operating 

procedure for the process and control 

equipment. Accordingly, careful 

planning can be reasonably expected to 

eliminate violations of emission 

limitations during such periods.5

Fourth, the commenter implied that 

because compliance with emission 

limits during malfunctions is 

‘‘technically infeasible,’’ sources should 

be entitled to exemptions from 

applicable SIP emission limits and thus 

excused for violations due to excess 

emissions during such events. EPA has 

long interpreted the CAA to prohibit 

exemptions for excess emissions during 

malfunctions and to require that the 

excess emissions be treated as 

violations.6 EPA’s own recent 

regulations provide no such exemptions 


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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 33103 

7See ‘‘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; Proposed 

Rule,’’ 78 FR 12460 at 12470, February 22, 2013. 

8See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 

1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 

690 F.3d 1157, 1170 (10th Cir. 2012). 

for excess emissions during 

malfunctions as the courts have held 

that no such exemptions are permissible 

because emission limits must apply 

continuously. 

Finally, EPA notes that the District, in 

addition to be being correct that the 

CAA requires sources to be subject to 

emission limitations at all times, 

including during SSM events, has 

discretion to elect how to regulate air 

pollutant emissions, consistent with 

CAA requirements. The District has 

authority to develop SIP provisions that 

impose appropriate alternative emission 

limitations applicable during startup 

and shutdown, consistent with EPA’s 

guidance for such provisions in the 

1999 SSM Policy, but the District is not 

required to do so. In adopting this rule 

revision, the District has determined 

that sources do not need exemptions for 

SSM events and should be required to 

meet the otherwise applicable SIP 

emission limits at all times. By 

removing the exemptions for SSM 

events, the District may seek to limit the 

number of SSM events, the duration of 

such events, and the amount of excess 

emissions during such events in order to 

meet CAA requirements and to protect 

public health. For the District to elect to 

do so is reasonable and also consistent 

with CAA requirements. EPA’s duty 

under section 110(k) of the CAA is to act 

upon submitted SIP revisions and to 

approve those that meet applicable CAA 

requirements. 

Comment 3: The commenter stated 

that emission standards are developed 

as limits to assure a source does not 

create an issue with National Ambient 

Air Quality Standards (NAAQS) based 

on ‘‘full load normal operation.’’ 

Response 3: EPA disagrees with the 

commenter’s limited view of the 

purpose of emission limits in SIPs. The 

CAA requires the imposition of SIP 

emission limits on sources for a variety 

of purposes, including for attainment 

and maintenance of the NAAQS, 

protection of PSD increments, and 

protection of visibility. Even with 

respect to attainment and maintenance 

of the NAAQS, however, the commenter 

is incorrect concerning the way in 

which states may devise the required 

emission limits. Pursuant to the CAA, 

each state is required to adopt and 

submit to the Administrator a plan that 

provides for implementation, 

maintenance, and enforcement of the 

NAAQS within such state. Each such 

plan must include enforceable emission 

limitations and other control measures, 

means, or techniques, as well as 

schedules and timetables for 

compliance, as may be necessary or 

appropriate to meet the applicable 

requirements of the Act. See CAA 

sections 110(a)(1) and (2). Additional 

requirements apply in certain areas, 

such as requirements that sources meet 

a reasonably available control measure 

(RACM) or reasonably available control 

technology (RACT) level of control in 

areas designated nonattainment for 

purposes of the NAAQS. See, e.g., CAA 

sections 172(c), 188, and 189 (applicable 

to areas designated nonattainment for 

purposes of particulate matter NAAQS). 

In particular, the Agency disagrees 

that states must develop all emission 

standards to limit emissions only during 

‘‘full load normal operation.’’ States 

have discretion as to how they arrive at 

appropriately protective emission 

limitations, and their approach may or 

may not be based only upon evaluation 

of emissions during ‘‘full load normal 

operation.’’ Nevertheless, the otherwise 

applicable emission limitations adopted 

by the state and approved into the SIP 

apply at all times unless the applicable 

provisions include alternative emission 

limitations under specific 

circumstances, such as during startup or 

shutdown. 

EPA also notes that, in accordance 

with CAA section 302(k), SIPs must 

contain emission limitations that ‘‘limit 

the quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis.’’ EPA has reiterated 

these requirements of the CAA with 

respect to SIP provisions in a recent 

proposal.7 Court decisions confirm that 

this requirement for continuous 

compliance prohibits exemptions for 

excess emissions during SSM events.8

Exemptions from SIP emission limits 

would authorize sources to emit 

pollutants during such periods in 

quantities that could interfere with 

attainment and maintenance of the 

NAAQS, protection of PSD increments, 

and protection of visibility. 

Comment 4: The commenter stated 

that ‘‘[d]uring periods of startup, certain 

emissions control equipment (i.e., 

electrostatic precipitator, selective 

catalytic reduction, pulsed jet fabric 

filters) cannot be activated until specific 

temperatures are reached from operation 

of the source.’’ Based on this assertion, 

the commenter argued, ‘‘[i]t follows that 

a source required to utilize such 

emission control equipment should not 

be held to a numerical standard that was 

developed for limiting emissions during 

full load, normal operation.’’ 

Response 4: The main premise of the 

commenter’s argument is that some 

existing control measures at a source 

may not function, or function as 

effectively, during all modes of source 

operation. EPA understands that certain 

emission control equipment at some 

sources are not fully operational in 

some circumstances, such as when 

sufficient temperatures have not been 

reached, as described by the commenter. 

EPA does not agree, however, that ‘‘it 

follows’’ automatically that sources 

should be excused from meeting any 

emission limitations during startup. As 

noted above, SIPs must contain 

emission limitations that apply on a 

continuous basis. EPA also does not 

necessarily agree that sources are 

incapable of meeting emission 

limitations that may have been 

developed based upon full load 

operation. Sources that have difficulty 

meeting existing emission limitations 

during startup should take steps to 

reduce emissions during such events. 

These steps may include changes to the 

facility’s operations or installation of 

supplemental control measures. As also 

noted above, the District has the 

authority to establish appropriate 

alternative emission limitations to apply 

during startup periods but is not 

required to do so. The District has 

exercised its discretion to revise Rule 

1.07 such that the SIP does not provide 

for exemptions to otherwise applicable 

emission limitations during startup 

events. 

Comment 5: The commenter claimed 

that ‘‘during periods of startup, although 

an emission rate may be exceeded, the 

mass emissions are actually very low in 

comparison to normal operation because 

volumetric flow is very low during 

startup.’’ Based upon this assertion, the 

commenter argued that ‘‘concerns with 

emissions that affect the NAAQS are 

negated.’’ 

Response 5: As noted above, EPA’s 

interpretation of the CAA is that periods 

of startup are part of the normal 

operation of a source. Here, EPA 

interprets the commenter’s reference to 

‘‘normal operation’’ to mean full load 

operation. EPA disagrees with the basis 

of the commenter’s argument—that 

emissions rate exceedances are of less 

concern when they occur during periods 

of startup than during full load 

operation because the mass emissions 

may be lower in comparison to full load 

operation. The relatively lower flow and 

lower gas stream temperatures that may 

be associated with a startup period 

could result in less dispersion and 

transport of pollutants. As a result, 


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33104 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

9Following promulgation of the MATS NESHAP 

and Utility NSPS, the EPA received petitions for 

reconsideration of numerous provisions of both 

rules pursuant to CAA section 307(d)(7)(B). 

Subsequently, EPA proposed reconsideration of 

specific provisions of those rules, including the 

requirements applicable during periods of startup 

and shutdown. 77 FR 71323 (November 30, 2012). 

In that action, EPA proposed to revise the 

definitions of ‘‘startup’’ and ‘‘shutdown’’ as set 

forth in 40 CFR 63.10042 and to revise the work 

practice standard provisions as set forth in Table 3 

to Subpart UUUUU. The EPA has not yet taken final 

action on the proposed revisions to those 

requirements. 

10For the purposes of subpart DDDDD, a major 

source of HAPs is as defined in 40 CFR 63.2, except 

that for oil and natural gas production facilities a 

major source of HAPs is as defined in 40 CFR 

63.761. 

11For the purposes of subpart JJJJJJ, an area source 

of HAPs is as defined in 40 CFR 63.2, except as 

specified in 40 CFR 63.11195. 

12Revisions to the major source Boiler MACT and 

the area source Boiler MACT were published on 

January 31, 2013 (78 FR 7138), and on February 1, 

2013 (78 FR 7488), respectively. In those actions, 

EPA revised the definitions of ‘‘startup’’ and 

‘‘shutdown’’ as set forth in 40 CFR 63.7575 and 40 

CFR 63. 11237 and revised the work practice 

standard provisions as set forth in Table 3 to 

subpart DDDDD and in Table 3 to subpart JJJJJJ. 

13The work practice standards under these rules 

are contained in Table 3 of Subpart UUUUU, Table 

3 of subpart DDDDD, and Table 3 of subpart JJJJJJ. 

These standards require several actions by sources, 

such as following manufacturer’s recommended 

procedures for minimizing startup and shutdown 

periods, tuning, maintaining and inspecting burners 

and associated combustion controls, keeping 

records of activity and measurements, using either 

natural gas or distillate oil for ignition during 

startup, and operating all control devices necessary 

to meet the normal operating standards. 

communities located close to the facility 

could experience greater adverse 

impacts during startup than during full 

load operation, even if the rate of total 

pollutant emissions is lower by mass. 

The District’s revisions to Rule 1.07 

eliminated impermissible exemptions 

that precluded the District, the 

Commonwealth, EPA and citizens from 

taking legal action to require sources to 

make reasonable efforts to reduce these 

emissions. 

Comment 6: The commenter 

advocated that EPA should make clear 

that ‘‘certain measures, including good 

engineering combustion and pollution 

control practices, are an appropriate 

limitation to apply during startup, 

shutdown and upset condition periods.’’ 

The commenter asserted that EPA has 

promulgated work practice standards to 

minimize emissions during these 

periods in both the utility Mercury and 

Air Toxics Standards (MATS) and the 

boiler Maximum Achievable Control 

Technology (MACT) rules and should, 

to the extent possible, address such 

emissions in a consistent manner under 

all CAA regulatory programs. The 

implication of the commenter’s 

statements is that EPA should require 

the District to adopt some other mode or 

means of control of sources to apply 

during SSM events. 

Response 6: EPA agrees that states 

have discretion to determine how to 

regulate emissions during startup and 

shutdown events in most SIP 

provisions, consistent with CAA 

requirements, but SIP emission limits 

may not include exemptions for 

emissions during startup and shutdown 

events. Instead, states may include 

alternative emission limits for such 

modes of source operation so long as 

they are consistent with CAA 

requirements. EPA’s 1999 SSM Policy 

includes guidance to states that elect to 

develop such alternative limits to apply 

during startup and shutdown. EPA 

notes that emission limits that apply 

during specific modes of source 

operation such as startup and shutdown 

do not necessarily need to be expressed 

as a numerical limit, so long as they 

meet other CAA requirements with 

respect to enforceability and the 

requisite level of control (e.g., RACT or 

RACM). Similarly, the emission limits 

applicable during startup and shutdown 

do not necessarily have to be set at the 

same numerical level as during other 

modes of source operation, so long as 

they otherwise meet all CAA 

requirements. By contrast, however, 

EPA considers it impracticable to 

develop alternative SIP emission limits 

(whether stated numerically or as 

requirement for a particular control or 

technique) that apply specifically 

during malfunctions because, by 

definition, malfunctions are events that 

are not reasonably foreseeable, are not 

avoidable through appropriate source 

design, operation and maintenance, and 

are not controllable. Accordingly, 

sources are required to meet the 

otherwise applicable SIP emission 

limits during malfunctions, and any 

excess emissions during such events are 

considered violations. To the extent, 

however, that the commenter suggests 

that EPA should require states to 

develop alternative emission limits that 

apply during startup and shutdown, in 

lieu of the otherwise applicable SIP 

emission limits, EPA disagrees that its 

role is to require states to do so. 

The commenter also suggests that SIP 

rules should be consistent with 

federally promulgated standards and 

points to, as examples, the rules often 

referred to as the MATS and Boiler 

MACT rules. The MATS rule 

established standards for hazardous air 

pollutant (HAP) emissions from coaland oil-fired electric utility steam 

generating units (40 CFR part 63 subpart 

UUUUU). See 77 FR 9304 (February 16, 

2012). In the same rulemaking that 

promulgated the MATS rule, EPA also 

finalized changes to the New Source 

Performance Standards (NSPS) that 

apply to coal- and oil-fired EGUs, 

industrial-commercial-institutional 

steam generating units, and small 

industrial commercial-institutional 

steam generating units (40 CFR part 60 

subparts D, Da, Db, and Dc), often 

referred to as the Utility NSPS rule.9

The major source Boiler MACT rule was 

published on March 21, 2011 (76 FR 

15608), and applies to industrial, 

commercial, and institutional boilers 

and process heaters that are located at, 

or are part of, a major source 10 of HAP 

emissions (40 CFR 63 subpart DDDDD). 

The area source Boiler MACT, also 

published on March 21, 2011 (76 FR 

15554), applies to industrial, 

commercial, and institutional boilers 

that are located at, or are part of, an area 

source 11 of HAP emissions (40 CFR 63 

subpart JJJJJJ).12

Under the MATS, Utility NSPS, and 

Boiler MACT rules, numeric emission 

limits generally apply for all relevant air 

pollutants and their surrogates (except 

organic HAPs) and for all periods of 

operation. For periods of startup and 

shutdown, however, these rules require 

facilities to comply with work practice 

standards 13 for minimizing emissions 

in lieu of numeric emission limits. 

EPA understands the commenter’s 

suggestion that regulatory requirements 

applicable to sources for purposes of 

SIPs should be consistent, ‘‘to the extent 

possible,’’ with the requirements of 

other CAA programs. On this point, EPA 

notes that the rules established under 

the NSPS and NESHAP programs are 

designed to achieve different objectives 

of the CAA than that of SIPs. They are 

technology-based, industry-specific 

standards that are nationally uniform in 

limiting the amount of emissions 

allowed from sources. Under section 

111 of the CAA, an NSPS must reflect 

the degree of emission limitation and 

the percentage reduction achievable by 

new sources or modified existing 

sources through application of the best 

technological system of continuous 

emission reduction that the 

Administrator determines has been 

adequately demonstrated. Similarly, 

under section 112 of the CAA, a 

NESHAP must require the maximum 

degree of reduction in emissions of 

hazardous air pollutants achievable by 

new sources and existing sources as 

determined by the Administrator. In 

setting standards under sections 111 

and 112, the Administrator must take 

into consideration the cost of achieving 

such emission reductions and any nonair quality health and environmental 


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impact and energy requirements; under 

section 112, the statute requires a 

minimum stringency standard for 

existing sources based on the average 

emission limitation achieved in practice 

by the best controlled 12 percent of 

sources and a minimum stringency 

standard for new sources based on the 

best controlled similar source. 

In contrast to the NSPS and NESHAP 

programs, SIPs are EPA-approved state 

plans to provide for the attainment and 

maintenance of the NAAQS and to meet 

other requirements such as protecting 

PSD increments and visibility. Under 

section 110 of the Act, each state must 

adopt a plan that it determines will 

provide for air quality that meets the 

primary and secondary NAAQS within 

the state. Consequently, SIPs must be 

consistent with attainment and 

maintenance of the NAAQS and 

prevention of significant deterioration of 

air quality throughout the state. 

Exemptions from SIP emission limits, 

such as that allowed under the prior 

version of Rule 1.07, are not appropriate 

because any emissions above the SIP 

allowable rate may cause or contribute 

to violations of the ambient air quality 

standards and interfere with 

enforcement of those SIP limits. Thus, 

EPA’s interpretation of the CAA, upheld 

by the courts, is that all periods of 

excess emissions must be considered 

violations. 

While the NSPS and NESHAP may 

provide good models of emission 

control technology and emission limits, 

they do not necessarily address all of 

the issues relevant to SIP provisions and 

they do not dictate state choices with 

respect to control measures or emission 

limitations. To the extent that a 

particular NSPS or NESHAP imposing a 

specific control measure or emission 

limit is relevant to a given source 

category, states may elect to consider 

imposing comparable controls to meet 

SIP requirements, as appropriate. In 

addition, to the extent that imposition of 

a specific control measure or emission 

limit in an EPA regulation helps to 

establish that a given control measure is 

technologically or economically feasible 

for a given source category, states may 

need to take such controls into account 

when evaluating emission limits for SIP 

purposes. EPA emphasizes, however, 

that any such consideration would need 

to be based on the specific facts and 

circumstances of a given source 

category, as the considerations relevant 

to the development of the NSPS or 

NESHAP may or may not be useful for 

SIP purposes. 

Further, while some emission sources 

may have difficulty complying with 

emission standards during startup, 

shutdown and upset periods, there are 

other sources of similar type that are 

capable of complying continuously 

during such events, especially events 

that are planned for in advance, such as 

startups and shutdowns. Thus, an 

appropriately protective SIP rule 

encourages compliance by all sources at 

all times through generally applicable 

emission limits that apply during full 

load operation as well as during startup 

and shutdown events. Where such 

generally applicable limits are not 

feasible for an emission source during 

startup or shutdown events, the SIP may 

contain appropriately established 

alternative emission limitations that 

apply during those events. In instances 

in which an exceedance of an emission 

limit is truly unavoidable because of a 

malfunction, exercise of enforcement 

discretion by potential enforcers, or 

exercise of discretion with respect to 

penalties by courts in the event of 

citizen enforcement, consistent with the 

provisions of CAA section 113, allows 

for proper consideration of the relevant 

circumstances during the event. 

Comment 7: The commenter 

expressed concerns about the accuracy 

of emission rates that are calculated for 

startup and shutdown periods. The 

commenter stated that: 

From a technical viewpoint, emission 

limits with measurement units of mass per 

heat input (e.g., pounds per million British 

thermal units) pose significant concern with 

respect to startup and shutdown periods. 

Some emission rates are calculated using 

monitored inputs of both pollutant 

concentration and diluent (e.g., carbon 

dioxide (CO2)) concentration. During startup 

of a coal-fired EGU, there is a period of time 

when the combustion airflow is much higher 

than during normal operation which 

inversely yields much lower CO2

[concentration] than normal. When 

calculating the emission rate, [concentration 

of the diluent] CO2 is used in the 

denominator of these calculations. The 

resulting low CO2 value can yield calculated 

emission rates that are skewed high and are 

not representative of actual emission 

concentrations to the atmosphere. EPA 

should take into consideration that skewed 

emission indications during these periods 

will not have an adverse impact on NAAQS 

attainment or maintenance, interfere with 

PSD increments, or otherwise cause adverse 

impacts. 

In essence, the commenter explains that 

the methodology for calculating 

emissions may sometimes be based 

upon assumptions that reflect certain 

modes of source operation, which 

would make such calculations less 

accurate with respect to emissions 

during other modes of operation. 

Response 7: EPA does not dispute that 

emission rates calculated for a coal-fired 

EGU during startup and shutdown may 

be less accurate than during full load 

operation, assuming that the formula 

used for the calculations only reflects 

full load operation. In some instances, a 

calculated emission rate may indicate 

exceedance of an applicable SIP 

emission limit only because existing 

parameters, such as combustion airflow, 

are not consistent with the assumptions 

inherent to the calculation method. 

To the extent that the commenter 

advocates that calculated emission rates 

should be adjusted so that they more 

accurately reflect the emissions that 

may occur during startup and 

shutdown, EPA believes such an 

approach would be appropriate and 

would serve to assure that emissions 

estimates are more accurate for the 

purposes of compliance determination 

and emissions inventories. EPA notes 

that some existing Federal rules provide 

options for dealing with the concern 

expressed by the commenter. For 

example, for computing nitrogen oxide 

emission rates and using CO2 as a 

diluent, the continuous emission 

monitoring procedures of 40 CFR Part 

75 allow boiler operators to substitute a 

minimum concentration of 5.0 percent 

CO2 whenever the measured 

concentration is less than 5.0 percent. 

See 40 CFR Part 75, Appendix F, 

paragraph 3.3.4.1. This prevents the 

calculation of disproportionately high 

emission rates due to very a low CO2

concentration, which, as indicated by 

the commenter, is a factor in the 

denominator of the calculation. 

As noted in response to Comment 2 

above, an appropriately protective SIP 

provision is designed to impose 

appropriate emission limits or controls 

and to require compliance at all times. 

However, if a source cannot 

demonstrate compliance based upon the 

applicable method in use, enforcement 

discretion may be used to determine 

whether to bring an enforcement action 

and, in the event that there is 

enforcement, the extent of any actual 

violation will be based upon all relevant 

factual information that is credible 

evidence. By eliminating the 

impermissible exemptions in the prior 

version of Rule 1.07, the District has 

taken steps to properly account for all 

emissions. 

Comment 8: The commenter 

expressed concerns about the accuracy 

of PM CEMS for determining 

compliance with PM emission limits 

during startup and shutdown events. 

The commenter argued that: 

Sources that use PM continuous emission 

monitoring systems (PM CEMS) as a 

continuous indication of compliance are 

required to provide a periodic correlation of 


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33106 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

the PM CEMs output to values derived 

through EPA Reference Method testing. The 

correlation testing occurs at three separate 

and distinct levels of operation and PM 

emissions. As PM reference method testing 

cannot occur during periods of startup and 

shutdown due to isokinetic requirements, 

there is no correlation provided during these 

periods. As a result, the output of the PM 

CEMS during periods of startup and 

shutdown will not be adequately tied to an 

EPA reference test method and cannot be 

considered accurate or representative. 

Response 8: EPA disagrees that the 

output of the PM CEMS during periods 

of startup and shutdown cannot be 

considered representative of actual 

emissions, regardless of whether 

Reference Method stack testing has been 

performed during startup and shutdown 

periods. The accuracy of PM CEMS data 

would be questionable if those data 

were recorded when the response of the 

PM CEMS falls outside the correlation 

range obtained during Reference 

Method testing. During periods of 

startup and shutdown, at times some 

PM CEMS responses may fall outside 

the correlation range, but any data 

measurements recorded within that 

range would be considered useful in 

assessing PM control device 

performance. 

Furthermore, the subject rule of this 

action does not require that PM CEMS 

data must be used to determine 

compliance status during startup and 

shutdown periods; it merely requires 

that that the applicable emission limit 

applies at all times, including SSM 

periods. PM CEMS data is not the only 

type of information that a court may 

find credible when evaluating whether 

or not a source would have been in 

violation of an emission standard. For 

example, opacity data from continuous 

opacity monitors (which may be 

required by another provision of the 

statute or the SIP) and recordkeeping 

data on emission control equipment use 

may also provide relevant information. 

The validity of all data is a 

consideration that must be taken into 

account, along with all other available 

credible evidence, when evaluating 

whether a source is in compliance with 

SIP emission limits. 

Comment 9: One commenter, a 

national environmental group, 

submitted comments in support of 

EPA’s proposed approval of the 

District’s revisions to Rule 1.07. The 

commenter provided its own analysis of 

the merits of the revisions to Rule 1.07 

and its own explanation of why these 

revisions are consistent with CAA 

requirements and EPA’s interpretation 

of the CAA with respect to proper 

treatment of excess emissions during 

SSM events. In particular, the 

commenter supported the clarification 

that excess emissions are violations of 

emission standards, the elimination of 

the prior discretionary exemptions for 

excess emissions, and the improved 

notification and reporting requirements. 

In addition, the commenter 

emphasized that these revisions to Rule 

1.07 will help to reduce excess 

emissions during SSM events from 

sources that ‘‘jeopardize[] public health 

and quality of life in nearby 

communities.’’ As an example, the 

commenter stated that an environmental 

justice community in Kentucky has 

been impacted by such emissions from 

specific sources. The commenter 

supported the District’s revisions to 

Rule 1.07 and EPA’s approval of those 

revisions as a means ‘‘to help mitigate 

the impacts of large pollution events on 

local communities in Jefferson County, 

directly improving people’s lives.’’ EPA 

notes that 74 individual citizens from 

Kentucky also filed supportive 

comments, echoing the key points 

raised by the environmental group. 

Response 9: EPA agrees with the 

commenters who supported the 

Agency’s approval of the District’s 

revisions to Rule 1.07 on the grounds 

that this will help to assure that sources 

take appropriate action to reduce their 

emissions in order to meet CAA 

requirements and thereby help to 

protect public health and welfare. 

Although the commenters did not 

provide detailed information concerning 

the specific sources and specific events 

that they described, EPA agrees that 

exemptions for excess emissions during 

SSM events in SIP provisions have the 

potential to expose surrounding 

communities to higher levels of 

pollutants and to remove incentives for 

sources to control and minimize such 

emissions during SSM events. As a 

result of such exemptions, communities 

near such sources may have no adequate 

legal recourse to address these 

problems. For the protection of public 

health, the CAA imposes obligations 

upon both states and EPA. States are 

required to develop SIPs that meet CAA 

requirements; EPA is required to 

evaluate the SIPs to assure that they 

meet CAA requirements. A key CAA 

requirement for SIP provisions is that 

they must impose emission limitations 

upon sources that apply continuously, 

thereby precluding exemptions for 

excess emissions from sources during 

SSM events and allowing for effective 

enforcement by air agencies, EPA, and 

the public to assure that sources comply 

with CAA requirements. 

IV. Final Action 

EPA is approving part of a revision to 

the Kentucky SIP submitted by the 

Commonwealth of Kentucky, through 

KDAQ, on March 22, 2011. This 

approval includes the changes to Rule 

1.07 in the Jefferson County portion of 

the Kentucky SIP noted in section II 

above. After review and consideration of 

the relevant information and data, 

including the comments received, EPA 

has determined that this portion of 

Kentucky’s March 22, 2011, SIP revision 

is consistent with the CAA and EPA’s 

SSM policy. 

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 

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 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: 

• 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); 

• 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 


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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 33107 

• 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, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the Commonwealth, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 11, 2014. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

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. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: May 29, 2014. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart S—Kentucky 

■ 2. Section 52.920(c) Table 2 is 

amended under ‘‘Reg 1—General 

Provisions’’ by revising the entry for 

‘‘1.07’’ to read as follows: 

§ 52.920—Identification of plan. 

* * * * * 

(c)* * * 

TABLE 2—EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY

Reg Title/Subject EPA Approval 

date Federal Register notice 

District 

effective 

date 

Explanation 

*******

Reg 1—General Provisions 

1.07 ............. Excess Emissions During Startups, Shutdowns, 

and Upset Conditions.

6/10/2014 [Insert citation of publication].7/21/2005 

* * * * * * * 

* * * * * 

[FR Doc. 2014–13429 Filed 6–9–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2013–0762; FRL–9912–01– 

Region 9] 

Approval and Promulgation of 

Implementation Plans—Maricopa 

County PM–10 Nonattainment Area; 

Five Percent Plan for Attainment of the 

24-Hour PM–10 Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

implementation plan (SIP) revision 

submitted by the State of Arizona to 

meet Clean Air Act (CAA) requirements 

applicable to the Maricopa County 

(Phoenix) PM–10 Nonattainment Area. 

The Maricopa County PM–10 

Nonattainment Area is designated as a 

serious nonattainment area for the 

national ambient air quality standards 

(NAAQS) for particulate matter of ten 

microns or less (PM–10). The submitted 

SIP revision consists of the Maricopa 

Association of Governments 2012 Five 

Percent Plan for PM–10 for the Maricopa 

County Nonattainment Area and the 

2012 Five Percent Plan for the Pinal 

County Township 1 North, Range 8 East 

Nonattainment Area’’ (collectively, the 

2012 Five Percent Plan). EPA is 

approving the 2012 Five Percent Plan as 

meeting all relevant statutory and 

regulatory requirements. 

DATES: This rule is effective on July 10, 

2014. 

ADDRESSES: You may inspect the 

supporting information for this action, 

identified by docket number EPA–R09– 

OAR–2013–0762, by one of the 

following methods: 

1. Federal eRulemaking portal, 

http://www.regulations.gov, please 

follow the online instructions; or, 

2. Visit our regional office at, U.S. 

Environmental Protection Agency 

Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105–3901. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

documents in the docket are listed in 


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