[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Proposed Rules]
[Pages 26707-26710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09130]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0672; EPA-R05-OAR-2016-0706; EPA-R05-OAR-2016-0708; 
FRL-9649-01-R5]


Air Plan Approval; Indiana, Michigan and Minnesota; Revised 
Startup, Shutdown, and Malfunction Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve three State Implementation Plan 
(SIP) revision requests, submitted by Indiana, Michigan, and Minnesota. 
All three states submitted the SIP revision requests in 2016 in 
response to a finding of substantial inadequacy and a SIP call 
published on June 12, 2015, for specific provisions in each state's SIP 
related to excess emissions during startup, shutdown, and malfunction 
(SSM) events. Each of these SIP submissions was submitted independently 
and EPA is analyzing them individually. However, EPA is packaging the 
proposed approvals together in a single action both for administrative 
efficiency and because EPA's action approving the revisions 
consistently applies EPA's national policy regarding SSM provisions in 
SIPs. EPA is proposing approval of these SIP submissions and proposing 
to determine that each submission corrects the state's respective SIP 
deficiencies as identified in the June 12, 2015, SIP call.

DATES: Comments must be received on or before June 6, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0672 (Indiana); EPA-R05-OAR-2016-0706 (Michigan); or EPA-R05-
OAR-2016-0708 (Minnesota) at https://www.regulations.gov, or via email 
to <a href="/cdn-cgi/l/email-protection#b4d6d8d5dfd8d1cd9ac4d5d9d1d8d5f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="3b59575a50575e42154b5a565e575a7b5e4b5a155c544d">[email protected]</span></a>. For comments submitted at Regulations.gov, 
follow the online instructions for

[[Page 26708]]

submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. For either manner of submission, EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section. For the full EPA public comment policy, information about CBI 
or multimedia submissions, and general guidance on making effective 
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-5954; <a href="/cdn-cgi/l/email-protection#6e1e011c1a0f0001180f40030f1c172e0b1e0f40090118"><span class="__cf_email__" data-cfemail="c1b1aeb3b5a0afaeb7a0efaca0b3b881a4b1a0efa6aeb7">[email protected]</span></a>. The 
EPA Region 5 office is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays and facility closures due to COVID-
19.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. What is the background for EPA's proposed action?

    On February 22, 2013 (78 FR 12460), EPA published a Federal 
Register notice of proposed rulemaking outlining the agency's policy at 
the time with respect to SIP provisions related to periods of SSM. This 
policy stated that director's discretion and automatic exemption 
provisions for periods of SSM were impermissible under the Clean Air 
Act (CAA), but that appropriately drawn affirmative defense provisions 
may be permissible under certain circumstances. EPA analyzed specific 
SSM SIP provisions and explained how each one either did or did not 
comply with the CAA with regard to excess emission events.\1\ For each 
SIP provision that EPA determined to be inconsistent with the CAA, EPA 
proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
supplementary notice of proposed rulemaking that revised what the 
Agency had previously proposed on February 22, 2013, in light of a 
decision by the U.S. Court of Appeals for the District of Columbia 
Circuit that determined the CAA precludes authority of the EPA to 
create affirmative defense provisions applicable to private civil 
suits.\2\ EPA outlined in its updated policy that affirmative defense 
SIP provisions are not consistent with CAA requirements. EPA proposed 
in the supplemental proposal document to apply its revised 
interpretation of the CAA to specific affirmative defense SIP 
provisions and to propose SIP calls for those provisions where 
appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (Feb. 22, 2013).
    \2\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir.2014).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemptions and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements.
    The 2015 SSM SIP Action found that certain SIP provisions in 36 
states, including Indiana, Michigan, and Minnesota, were substantially 
inadequate to meet CAA requirements and issued a SIP call to those 
states to submit SIP revisions to address the inadequacies. EPA 
established an 18-month deadline by which the affected states had to 
submit such SIP revisions. The detailed rationale for issuing the SIP 
calls to Indiana, Michigan, and Minnesota can be found in the 2015 SSM 
SIP Action and preceding proposed actions. States were required to 
submit corrective revisions to their SIPs in response to the SIP calls 
by November 22, 2016. Indiana submitted a SIP revision request in 
response to the SIP call on November 14, 2016, and supplemented it on 
January 31, 2017. Michigan submitted a SIP revision request in response 
to the SIP call on November 15, 2016, and supplemented it on February 
7, 2017. Minnesota submitted a SIP revision request in response to the 
SIP call on November 22, 2016, and supplemented it on February 10, 
2017. This proposal addresses all three of these SIP submittals in a 
consolidated action.
    In October 2020, EPA issued a Memorandum (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\3\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Indiana, Michigan, and Minnesota in 2015. The 
2020 Memorandum did, however, indicate EPA's intent at the time to 
review SIP calls that were issued in the 2015 SSM SIP Action to 
determine whether EPA should maintain, modify, or withdraw particular 
SIP calls through future agency actions.
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    \3\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\5\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's

[[Page 26709]]

intent. EPA intends to implement the principles laid out in the 2015 
SSM SIP Action as the agency takes action on SIP submissions, including 
the three state SIP submittals provided in response to the 2015 SSM SIP 
Action which are addressed in this consolidated proposal.
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    \4\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \5\ 80 FR 33985, June 12, 2015.
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II. EPA's Analysis of the States' Submissions

Indiana

    In the 2015 SSM SIP Action, EPA determined that a provision in the 
Indiana SIP was substantially inadequate to meet CAA requirements. 
Indiana's SIP rules are codified in the Indiana Administrative Code 
(IAC). Indiana's rule 326 IAC 1-6-4(a) provided a director's discretion 
exemption from the otherwise applicable SIP emission limitations during 
malfunctions. EPA determined that the Indiana rule was inconsistent 
with the requirements of the CAA for the reasons explained in Section 
IX.F.2 of the 2015 SSM SIP Action.\6\
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    \6\ Although the 2015 SSM SIP Action describes Indiana's rule 1-
6-4(a) ``generally applicable,'' the actual rule applies only to 
non-major sources. It does not apply to larger facilities that have 
major source operating permits pursuant to title V of the CAA and 40 
CFR part 70.
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    Indiana submitted its SIP revision request pursuant to the 2015 SSM 
SIP Action on November 14, 2016 and supplemented it on January 31, 
2017. Indiana removed the provisions in 326 IAC 1-6-4(a) that provided 
for discretionary exemptions. The state removed language that read in 
part, ``Emissions temporarily exceeding the standards which are due to 
malfunctions of facilities or emission control equipment shall not be 
considered a violation of the rules provided that the source 
demonstrates. . .'' [meeting a list of criteria]. Indiana also removed 
language from 326 IAC 1-6-4(a)(1)-(4) which gave criteria that would 
have allowed for the exemptions. The rule at 326 IAC 1-6-4 now reads: 
``Source owners or operators shall operate and maintain all emission 
control equipment and combustion process equipment or processes in 
compliance with all applicable rules.'' Indiana's submittal also 
included administrative revisions to other sections of rule 326 IAC 1-
6, (1-6-1, 1-6-2, 1-6-5, and 1-6-6), such as replacing the word 
``shall'' with ``must'' or changing ``facility'' to ``emission unit'' 
or ``source''. In addition, Indiana revised and submitted a separate 
general rule, 326 IAC 2-9-1, removing a reference to rule 326 IAC 1-6 
applying during malfunctions. EPA is proposing to find that the revised 
language in 326 IAC 1-6 and 326 IAC 2-9-1 addresses the deficiency 
outlined in the 2015 SSM SIP Action for Indiana.

Michigan

    In the 2015 SSM SIP Action, EPA determined that a provision in the 
Michigan SIP, Michigan Administrative Code R 336.1916, (R 336.1916), 
provided an affirmative defense to monetary penalties for violations of 
otherwise applicable SIP limitations during startup and shutdown 
periods and therefore was substantially inadequate to meet CAA SIP 
requirements. EPA's rationale for this determination is explained in 
Section IX.F.3 of the 2015 SSM SIP Action.
    Michigan submitted its SIP revision request on November 15, 2016, 
and supplemented it on February 7, 2017.\7\ Michigan revised and 
curtailed the applicability of R 336.1916, and requested that EPA 
remove it entirely from the Michigan SIP. Rule R 336.1916, as revised, 
specifically cites a list of Michigan's air toxics rules and its 
nuisance rule as the only rules to which the affirmative defense in R 
336.1916 applies. The air toxics and nuisance rules are not part of 
Michigan's criteria pollutant SIP. The revised rule R 336.1916 will 
remain on Michigan's books, but as a state-only rule. EPA is proposing 
to remove R 336.1916 from Michigan's federally enforceable criteria 
pollutant SIP, per Michigan's request, because the rule no longer 
applies to criteria pollutant emission limits. EPA is also proposing to 
find that the removal of R 336.1916 would remove the SSM deficiency 
from Michigan's SIP, and would fully address the 2015 SSM SIP Action.
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    \7\ Michigan's 2017 submittal also requested SIP approval of 
eight other revised SIP rules, unrelated to the 2015 SSM SIP Action. 
EPA has addressed these rules in separate actions.
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Minnesota

    In the 2015 SSM SIP Action, EPA determined that a provision in the 
Minnesota SIP was substantially inadequate to meet CAA requirements. 
The Minnesota rule, Minnesota Rule 7011.1415 (Minn. R. 7011.1415), 
provided automatic exemptions for excess emissions resulting from 
flared gas at petroleum refineries when the flaring is necessitated by 
SSM events. EPA determined that the Minnesota rule was inconsistent 
with the requirements of the CAA for the reasons more fully explained 
in Section IX.F.4 of the 2015 SSM SIP Action.
    Minnesota submitted its SIP revision request on November 22, 2016, 
and supplemented it on February 10, 2017. Minnesota repealed Minn R. 
7011.1415, effective December 27, 2016, and requested that EPA remove 
Minn. R. 7011.1415 from the SIP. EPA is proposing to approve 
Minnesota's SIP revision request because removing the deficient rule 
from the Minnesota SIP responds fully to the 2015 SSM SIP Action.
    In summary, in the 2015 SSM SIP Action, EPA found that the SIPs for 
Indiana, Michigan, and Minnesota contained provisions that were 
substantially inadequate to meet CAA requirements, and accordingly 
issued a SIP call to the state to revise those SIP provisions. In 
response, Indiana, Michigan, and Minnesota have submitted SIP revision 
requests. In this action, EPA proposes to find that the SIP revisions 
submitted by each of the three states remedy the issues identified in 
EPA's 2015 SSM SIP Action, and therefore proposes to approve the SIP 
submittals from all three states and, if the proposed action is 
finalized, determine that the SIP call obligation issued in 2015 has 
been fulfilled. In the case of Indiana, EPA is proposing to approve the 
revised language in 326 IAC 1-6 and 326 IAC 2-9-1. In the cases of 
Michigan and Minnesota, EPA is proposing to remove Michigan's R 
336.1916 and Minn. R. 7011.1415 from the Michigan and Minnesota SIPs, 
respectively. EPA is proposing to find that all three of these state 
SIP revision requests meet the requirements of the CAA and address the 
deficiencies in each SIP as outlined in EPA's 2015 SSM SIP Action.

III. What action is EPA proposing to take?

    EPA is proposing to approve three SIP revision requests submitted 
in 2016 and supplemented in 2017 by Indiana, Michigan, and Minnesota in 
order to address EPA's 2015 SSM SIP Action. EPA is proposing to 
determine that the three states' rulemaking actions and revised rules 
are consistent with the SSM requirements for SIP provisions under the 
CAA; that their respective SIP submissions correct the SSM deficiencies 
identified for the state within EPA's 2015 SSM SIP Action; and fulfill 
the obligation to respond to it.
    EPA is not reopening the 2015 SSM SIP Action and is only taking 
comment on whether each state's SIP revision addresses the finding of 
substantial inadequacy for the respective SIP provisions identified in 
the 2015 SSM SIP Action.

IV. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by

[[Page 26710]]

reference. In accordance with the requirements of 1 CFR 51.5, EPA is 
proposing to incorporate by reference Indiana rules 326 IAC 1-6-1, 326 
IAC 1-6-2, 326 IAC 1-6-4, 326 IAC 1-6-5, 326 IAC 1-6-6; and 326 IAC 2-
9-1, effective January 29, 2017, as discussed in Section II of this 
preamble. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov, and at the EPA Region 
5 Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).
    Also in this document, as described in section II of this preamble, 
EPA is proposing to remove provisions of the EPA-Approved Michigan and 
Minnesota Regulations and Statutes from the Michigan and Minnesota 
SIPs, which are incorporated by reference in accordance with the 
requirements of 1 CFR part 51.

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 CAA 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:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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.

    Dated: April 21, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-09130 Filed 5-4-22; 8:45 am]
BILLING CODE 6560-50-P


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