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 of APCD Regulation 1.07 version 8 

Dear Lynorae: 

VIAE-MAIL 

The Louisville Metro Air Pollution Control District (APCD) is providing the following 

clarification regarding Regulation 1.07 at your request. As we understand it, the EPA will, upon 

receiving this clarification, finalize its approval of Regulation 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 Amend Provisions Applying to Excess Emissions During Periods 

of Startup, Shutdown, and Malfunction, 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 how those emissions are addressed in state implementation plans 

(SIPs) that were approved by the EPA in the past. If our understanding is incorrect, please 

contact me 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 of the 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 

1 Approval and Promulgation of Air Quality Implementation Plans; Kentucky; Approval of Revisions to State 

Implementation Plan; Revised Format for 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, 502.574.5306 
exemptions and (2) an affirmative defense to emergencies.2 On February 22, 2013, the EPA 

agreed and included Jefferson County, KY in the 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 of the proposed revisions to the 

EPA as part of the 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 

ultimately proposed for adoption by the 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 of the Kentucky SIP. The submittal was 

received by the 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's petition. 

II. Regulation 1.07 version 8 

APCD is relieved that EPA is now completing its review of version 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 provision that 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 of the applicable emission 

standard and subject to an appropriate enforcement action, including civil penalties.9 Criteria by 

2 Sierra Club, "Petition to Find Inadequate and Correct Several State Implementation Plans under Section 110 of 

the Clean Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance Provisions," (June 30, 2011 ). 3 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 Maljimction, 78 

Fed. Reg. 12459 (proposed Feb. 22, 2013). 4 U.S. Environmental Protection Agency. (Sept. 20, 1999). State Implementation Plans: Policy Regarding Excess 

Emissions During Malfunctions, Startup, and Shutdown. 5 Informal (External) Draft (September 16, 2004) http://www.louisvilleky.gov/NR/rdonlyres/4964BB34-DB4D462B-8Al8-E5DFOF3503F3/0/107exdl.pdf; Proposed Draft (January 10, 2005) 

http://www .louisvillekv. gov/NR/rdonlyres/C5157FC6-D652-4AD8-BE6A-51B890AD70F8/0/ 107 d2pr.pdf. 6 Wagner P. (U. S. Environmental Protection Agency, Air Toxics Assessment and Implementation Section). October 

12,2004. http://www.louisvilleky.gov/APCD/STAR/STARRegsDraftlComments.htm#aEPA; Banister B. (U.S. 

Environmental Protection Agency Region 4). February 14, 2005. 

http://www.louisvillekv.gov/NR/rdonlyres/DDF23112-0AD8-43C7-BCB6-

l 063202313E2/0/USEPAR4 200502.pdf. 7

Regulation 1.07 version 8 (June 21, 2005, effective July 1, 2005) 

http://www .louisvilleky.gov/NR/rdonlyres/6B2CD5D4-2A92-41 F7-A 7B3-A 18733AB8AF4/0/ 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 of the applicable emission standard and thus is subject to an appropriate 
which 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 

intended to preempt the rights of the EPA or any person to pursue enforcement under local, state, 

or federal law, including the Clean Air Act. 

Thank you for the opportunity to provide this clarification. If you 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 of Regulation 1.07 version 8 by May 13, 2013. 

Respectfully submitted, 

Lauren Anderson, Director 

Louisville Metro Air Pollution Control District 

enforcement action, including a penalty." http://www.louisvilleky.gov/NR/rdonlyres/84189D77 -1349-4E 19-A653-

ECAA4 713 864C/O/ST ARRegsDraft 1 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 of the violation and the magnitude of the 

excess emissions during any SSM event. http://www.Iouisvilleky.gov/NR/rdonlyres/84189D77 -1349-4E 19-A653-

ECAA4 713 864C/O/ST ARRegsDraft 1 ComrnentResponse.pdf.