```

[Federal Register Volume 79, Number 111 (Tuesday, June 10, 2014)]
[Rules and Regulations]
[Pages 33101-33107]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13429]

[[Page 33101]]

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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.

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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 EPA-approved 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

[[Page 33102]]

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.
---------------------------------------------------------------------------

    \1\ LG&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.
---------------------------------------------------------------------------

    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.
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    \2\ See 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.
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    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\
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    \3\ See 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).
    \4\ See 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).
---------------------------------------------------------------------------

    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\
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    \5\ See, 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.
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    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

[[Page 33103]]

for excess emissions during malfunctions as the courts have held that 
no such exemptions are permissible because emission limits must apply 
continuously.
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    \6\ See, 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).
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    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.
---------------------------------------------------------------------------

    \7\ See ``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.
    \8\ See, 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).
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    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,

[[Page 33104]]

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 coal- and 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\
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    \9\ Following 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.
    \10\ For 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.
    \11\ For 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.
    \12\ Revisions 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.
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    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.
---------------------------------------------------------------------------

    \13\ The 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.
---------------------------------------------------------------------------

    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 non-air quality health and 
environmental

[[Page 33105]]

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

[[Page 33106]]

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

[[Page 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

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart S--Kentucky

0
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:

Sec.  52.920--Identification  of plan.

* * * * *
    (c)* * *

                                             Table 2--EPA-Approved Jefferson County Regulations for Kentucky
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       EPA Approval                                District
                 Reg                           Title/Subject               date       Federal Register notice   effective date         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Reg 1--General Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.07.................................  Excess Emissions During            6/10/2014   [Insert citation of           7/21/2005   ........................
                                        Startups, Shutdowns, and                       publication].
                                        Upset Conditions.
 
                                                                      * * * * * * *
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* * * * *
[FR Doc. 2014-13429 Filed 6-9-14; 8:45 am]
BILLING CODE 6560-50-P
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