AIR POLLUTION CONTROL DISTRICT LOUISVILLE, KENTUCKY GREG FISCHER LAUREN ANDERSON, DIRECTOR MAYOR May 8, 2013 SUBMITTED VIA EMAIL

Ms. Lynorae E. Benjamin, Chief Air Planning Branch, APTMD U.S. EPA, Region 4 100 Alabama Street, S.W. Atlanta, GA 30303-3104 Re: Clarification ofAPCD Regulation 1.07 version 8 Dear Lynorae: VIAE-MAIL

The Louisville Metro Air Pollution Control District (APCD) is providing the following clarificationregarding Regulation 1.07 at your request. As we understand it, the EPA will, upon receiving this clarification, finalize its approval ofRegulation 1.07 version 8 by May 13, 2013. As a result, Jefferson County, KY will not be included in the final SIP Call, 

### State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to AmendProvisionsApplying to Excess Emissions During Periods of Startup, Shutdown, andMalfunction, which was proposed in the Federal Register on February 22, 2013, and outlines the EPA's proposed action on a June 30, 2011, petition for rulemaking filed by the Sierra Club regarding excess emissions from sources during startup, shutdown and malfunction (SSM) events and howthose emissions are addressed in state implementation plans (SIPs) that were approved by the EPA in the past. If our understanding is incorrect, please contactme at your earliest convenience to discuss the issue. APCD Regulation 1.07 version 7 (January 17, 1996), which was cited by the Sierra Club in its petition for rulemaking, was approved into the Jefferson Cotmty portion ofthe Kentucky SIP on October 23, 2001. 1 According to the Sierra Club, version 7 of the regulation impermissibly exempted excess emissions during SSM events because it provides for (1) discretionary

1ApprovalandPromulgation of Air QualityImplementation Plans; Kentucky; Approvalof Revisions to State Implementation Plan; Revised Formatfor Materials Being Incorporated by Reference for Jefferson County, Kentucky, 66 Fed. Reg. 53660 (Oct. 23, 2001).

www.louisvilleky.gov WWW.LOUISVILLEKY.GOV/APCD 850 BARRET AVENUE, ROOM 205 LOUISVILLE, KENTUCKY 40204-t 745 502.574.6000 FAX, 502.574.5306exemptions and (2) an affirmative defense to emergencies.2 On February 22, 2013, the EPA agreed and included Jefferson County, KY inthe proposed SIP call. 3
I. Regulatory Background APCD began proactively addressing excess emissions from SSM in 2004, when it proposed revising Regulation 1.07 version 7 to adopt provisions recommended in the EPA's 1999 SSM guidance document.4 APCD collaboratively provided copies ofthe proposed revisions to the EPA as part ofthe informal stakeholder process and again during formal notice and comment rulemaking.5 At that time, the EPA provided written recommendations on the draft of Regulation 1.07 version 8 that was provided for informal review and, separately, on the draft ultimatelyproposed for adoption bythe Louisville Metro Air Pollution Control Board.6
On June 21, 2005, Regulation 1.07 version 8 (effective July 1, 2005) was adopted. 7 On March 22, 2011, the revised regulation was forwarded to the EPA by the Kentucky Division for Air Quality for approval into the Jefferson County portion ofthe Kentucky SIP. The submittal was received bythe EPA Region 4 on April4, 2011. On May 9, 2012, APCD formally requested that the EPA expedite its review ofRegulation 1.07 version 8 in light ofthe Sierra Club'spetition. II. Regulation 1.07version 8 APCD is relieved that EPA is now completing its review ofversion 8. 8 Regulation 1.07 version 8, which incorporates the EPA's 1999 SSM guidance and its subsequent recommendations, eliminated the discretionary exemptions and affirmative defenses for emergencies in version 7 and replaced them with an enforcement discretion provisionthat applies to excess emissions that may occur during SSM. As revised, Regulation 1.07 unequivocally establishes that any excess emission during startup, shutdown, or a malfunction, is a violation ofthe applicable emission standard and subject to an appropriate enforcement action, including civil penalties.9 Criteria by

2 Sierra Club, "Petition to FindInadequate and Correct Several State Implementation Plans under Section 110 of the CleanAirActDue to Startup, Shutdown, Malfunction, and/orMaintenance Provisions," (June 30, 2011). 3 State Implementation Plans: Response to Petitionfor Rulemaking; Findings of Substantial Inadequacy; andSIP Calls toAmendProvisionsApplyingto Excess Emissions DuringPeriods of Startup, Shutdown, andMaljimction, 78 Fed. Reg. 12459 (proposed Feb. 22, 2013). 4 U.S. Environmental Protection Agency. (Sept. 20, 1999). State Implementation Plans: Policy Regarding Excess Emissions DuringMalfunctions, Startup, andShutdown. 5 Informal (External) Draft (September 16, 2004) http://www.louisvilleky.gov/NR/rdonlyres/4964BB34-DB4D462B-8Al8-E5DFOF3503F3/0/107exdl.pdf; ProposedDraft (January 10, 2005) http://www.louisvillekv.gov/NR/rdonlyres/C5157FC6-D652-4AD8-BE6A-51B890AD70F8/0/107d2pr.pdf. 6 WagnerP. (U. S. Environmental ProtectionAgency, Air Toxics Assessment and Implementation Section). October 12,2004. http://www.louisvilleky.gov/APCD/STAR/STARRegsDraftlComments.htm#aEPA; BanisterB. (U.S. Environmental Protection AgencyRegion 4). February 14, 2005. http://www.louisvillekv.gov/NR/rdonlyres/DDF23112-0AD8-43C7-BCB6- l063202313E2/0/USEPAR4 200502.pdf. 7Regulation 1.07 version 8 (June 21, 2005, effective July 1, 2005) http://www.louisvilleky.gov/NR/rdonlyres/6B2CD5D4-2A92-41F7-A7B3-A18733AB8AF4/0/1 07FV8.pdf. 8 78 Fed. Reg. 12459, 12508 n. 131 (Feb. 22, 2013). 9 Regulation 1.07 version 8 sections 2.2 and 2.4; see also Response to Comment 1.07-82 (January 8, 2005), which states that "an excess emission is a violation ofthe applicable emission standard andthus is subjectto an appropriatewhich APCD may determine the appropriate enforcement action to take, including the assessment of civil penalties, and ensure that sources have taken all appropriate steps to minimize excess emissions, including properly designing, maintaining, and operating equipment, are also included in the revised regulation. 10 Notably, Regulation 1.07 section 2.3, which identifies criteria that the District may consider as part of its enforcement discretion is not intendedto preemptthe rights ofthe EPA or anypersonto pursue enforcement under local, state, orfederal law, including the Clean Air Act. Thank you for the opportunity to provide this clarification. Ifyou have any questions or need any further information on the issue, please feel free to contact me at (502) 574-6009. We look forward to the EPA's approval ofRegulation 1.07 version 8byMay 13, 2013. Respectfully submitted,

Lauren Anderson, Director Louisville Metro AirPollution Control District

enforcement action, including a penalty." http://www.louisvilleky.gov/NR/rdonlyres/84189D77-1349-4E19-A653- ECAA4713864C/O/STARRegsDraft1 CommentResponse.pdf. 10Regulation 1.07 version 8 sections 2.3; see also Response to Comment 1.07-28 (January 8, 2005), which states that civil penalties for excess emissions from SSM are assessed based on APCD's statutory authority and the EPA civil penalty guidelines, which, along with other factors, consider the frequency ofthe violation and the magnitude ofthe excess emissions during any SSM event. http://www.Iouisvilleky.gov/NR/rdonlyres/84189D77-1349-4E19-A653- ECAA4713864C/O/STARRegsDraft1 ComrnentResponse.pdf.