34612 Federal Register / Vol. 87, No. 109 / Tuesday, June 7, 2022 / Proposed Rules 

IV. Proposed Action 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

EPA is proposing to approve 

Mississippi’s November 17, 2016, SIP 

submission requesting changes to 11 

Mississippi Administrative Code, Part 2, 

Chapter 1, Rule 1.10, Provisions for 

Upsets, Startups, and Shutdowns, into 

the Mississippi SIP. Specifically, EPA is 

proposing to remove Rule 1.10.A and 

Rule 1.10.C from the Mississippi SIP, 

and to approve the revised version of 

Rule 1.10.B into the Mississippi SIP, 

except for Rule 1.10.B(3), which EPA is 

proposing to remove from the SIP. EPA 

is proposing approval of the SIP 

revision because the Agency has 

determined that it is consistent with the 

requirements for SIP provisions under 

the CAA. EPA is further proposing to 

determine that such SIP revision 

adequately addresses the specific 

deficiencies that EPA identified in the 

2015 SSM SIP Action with respect to 

the Mississippi SIP. EPA is not 

reopening the 2015 SSM SIP Action and 

is taking comment only on whether this 

SIP revision is consistent with CAA 

requirements and whether it addresses 

the substantial inadequacy in the 

specific Mississippi SIP provisions 

(originally 11–1–2 Miss. Code R. 

sections 10.1, 10.2, and 10.3, since 

recodified as 11 Miss. Admin. Code, Pt. 

2, Ch. 1, R. 1.10, sections 1.10.A, 1.10.B, 

and 1.10.C) identified in the 2015 SSM 

SIP Action. 

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. 

See 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. This action merely proposes to 

approve state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed action: 

• 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); 

• 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 

• 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). 

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 as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

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 31, 2022. 

Daniel Blackman, 

Regional Administrator, Region 4. 

[FR Doc. 2022–12068 Filed 6–6–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R4–OAR–2022–0225; FRL–9912–01– 

R4] 

Air Plan Approval; Kentucky; Removal 

of Excess Emissions Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the Kentucky 

Energy and Environment Cabinet 

(Cabinet), on November 17, 2016, on 

behalf of the Commonwealth of 

Kentucky (Commonwealth). The 

revision was submitted in response to 

the EPA’s SIP call published on June 12, 

2015, concerning excess emissions 

during startup, shutdown, and 

malfunction (SSM) events. The 

submittal requests the revision of 

provisions identified in the 2015 SIP 

call for the Kentucky SIP. EPA is 

proposing to approve the SIP revision 

and proposing to determine that such 

SIP revision corrects the deficiencies 

identified in the June 12, 2015 SIP call. 

DATES: Comments must be received on 

or before July 7, 2022. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R4– 

OAR–2022–0225 at https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not 

electronically submit 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, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit www2.epa.gov/ 

dockets/commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Estelle Bae, Air Permitting Section, Air 


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Federal Register / Vol. 87, No. 109 / Tuesday, June 7, 2022 / Proposed Rules 34613 

1State 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 

(February 22, 2013). 

2October 9, 2020, memorandum ‘‘Inclusion of 

Provisions Governing Periods of Startup, 

Shutdown, and Malfunctions in State 

Implementation Plans,’’ from Andrew R. Wheeler, 

Administrator. 

3September 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. 

4See 80 FR 33839, 33985. 5See 54 FR 19169 (May 4, 1989). 

Planning and Implementation Branch, 

Air and Radiation Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW, Atlanta, 

Georgia 30303–8960. Ms. Bae can be 

reached by telephone at (404) 562–9143 

or via electronic mail at bae.estelle@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On February 22, 2013, the EPA issued 

a Federal Register notice of proposed 

rulemaking (NPRM) outlining EPA’s 

policy at the time with respect to SIP 

provisions related to periods of SSM. 

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 

document supplementing and revising 

what the Agency had previously 

proposed on February 22, 2013, in light 

of a United States Court of Appeals for 

the District of Columbia Circuit decision 

that determined the CAA precludes 

authority of EPA to create affirmative 

defense provisions applicable to private 

civil suits. EPA outlined 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 proposed SIP calls for 

those provisions where appropriate. See 

79 FR 55920 (September 17, 2014). 

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,’’ 

hereinafter referred to as the ‘‘2015 SSM 

SIP Action.’’ See 80 FR 33839 (June 12, 

2015). The 2015 SSM SIP Action 

clarified, restated, and updated EPA’s 

interpretation that SSM exemption and 

affirmative defense SIP provisions are 

inconsistent with CAA requirements. 

The 2015 SSM SIP Action found that 

certain SIP provisions in 36 States, 

including Kentucky, 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. 

States were required to submit 

corrective revisions to their SIPs in 

response to the SIP calls by November 

22, 2016. 

EPA issued a memorandum in 

October 2020 (2020 Memorandum), 

which stated that certain provisions 

governing SSM periods in SIPs could be 

viewed as consistent with CAA 

requirements.2 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 Kentucky 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. 

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).3 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.4 The 2021 Memorandum 

also retracted the prior statement from 

the 2020 Memorandum regarding EPA’s 

plans to review and potentially modify 

or withdraw particular SIP calls. That 

statement no longer reflects EPA’s 

intent. EPA intends to implement the 

principles laid out in the 2015 SSM SIP 

Action as the Agency takes action on 

SIP submissions, including this SIP 

submittal provided in response to the 

2015 SIP call. 

With regard to the Kentucky SIP, in 

the 2015 SSM SIP Action, EPA 

determined that 401 Kentucky 

Administrative Regulations (KAR) 

50:055 section 1(1) was substantially 

inadequate to meet CAA requirements. 

See 80 FR 33839, 33963 (June 12, 2015). 

This provision states, ‘‘Emissions 

which, due to shutdown or 

malfunctions, temporarily exceed the 

standard set forth by the cabinet shall be 

deemed in violation of such standards 

unless the requirements of this section 

are satisfied and the determinations 

specified in subsection (4) of this 

section are made.’’ The rationale 

underlying EPA’s determination that 

401 KAR 50:055 section 1(1) is 

substantially inadequate to meet CAA 

requirements, and therefore should be 

included in the 2015 SIP call to remedy 

the deficiency, is detailed in the 2015 

SSM SIP Action and the accompanying 

proposals. 

Kentucky submitted a SIP revision on 

November 17, 2016, in response to the 

SIP call issued in the 2015 SSM SIP 

Action. In its submission, Kentucky is 

requesting that EPA revise the Kentucky 

SIP by removing 401 KAR 50:055 

section 1(1) and section 1(4) in their 

entirety from the Kentucky SIP and 

retaining the remaining regulatory 

provisions, as approved on May 4, 

1989.5

II. Analysis of Kentucky’s SIP 

Submission 

Kentucky’s November 17, 2016, SIP 

revision requests that EPA remove two 

provisions in their entirety from the SIP. 

First, Kentucky is requesting that EPA 

remove the SIP-called provision, 401 

KAR 50:055 section 1(1), from the SIP 

as discussed above. Second, the 

Commonwealth is also requesting that 

EPA remove 401 KAR 50:055 section 

1(4) from the Kentucky SIP. This 

provision states the following: 

(4) A source shall be relieved from 

compliance with the standards set forth 

by the cabinet if the director determines, 

upon a showing by the owner or 

operator of the source, that: 

(a) The malfunction or shutdown and 

ensuing start-up did not result from the 

failure by the owner or operator of the 

source to operate and maintain properly 

the equipment; 


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34614 Federal Register / Vol. 87, No. 109 / Tuesday, June 7, 2022 / Proposed Rules 

6Once removed from the SIP, 401 KAR 50:055 

sections 1(1) and 1(4) will apply to Kentucky in 

exercising its enforcement authority for state-law 

purposes only. Citizens and EPA may seek 

injunctive relief or civil penalties for excess 

emissions, as 401 KAR 50:055 sections 1(1) and 1(4) 

will not be in the Kentucky SIP. 

(b) All reasonable steps were taken to 

correct, as expeditiously as practicable, 

the conditions causing the emissions to 

exceed the standards, including the use 

of off shift labor and overtime if 

necessary; 

(c) All reasonable steps were taken to 

minimize the emissions and their effect 

on air quality resulting from the 

occurrence; 

(d) The excess emissions are not part 

of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance; and 

(e) The malfunction or shutdown and 

ensuing start-up was not caused entirely 

or in part by poor maintenance, careless 

operation or any other preventable upset 

conditions or equipment breakdown. 

Although EPA did not include 401 

KAR 50:055 section 1(4) in the SIP call 

with the 2015 SSM SIP Action, the 

provision is referenced within the SIPcalled provision, 401 KAR 50:055 

section 1(1), and removing it from the 

SIP is consistent with the 2015 SSM SIP 

Action. Kentucky’s submittal states that 

401 KAR 50:055 section 1(1) and section 

1(4) will remain in the Commonwealth’s 

regulations to be enforceable as stateonly provisions.6

Based on Kentucky’s request to 

remove 401 KAR 50:055 section 1(1) 

and section 1(4) from the Kentucky SIP, 

EPA proposes to find that Kentucky’s 

November 17, 2016, SIP revision is 

consistent with CAA requirements and 

adequately addresses the specific 

deficiencies that EPA identified in the 

2015 SSM SIP Action with respect to 

the Kentucky SIP. 

III. Incorporation by Reference 

In this document, EPA is proposing to 

include in a final EPA rule amended 

regulatory text that includes 

incorporation by reference. EPA is 

proposing to remove the incorporation 

by reference of specific provisions 

under 401 KAR 50:055, General 

Compliance Requirements. Specifically, 

EPA is proposing the removal of 401 

KAR 50:055 section 1(1) and section 

1(4) from the Kentucky SIP, which is 

incorporated by reference in accordance 

with requirements of 1 CFR 51.5. EPA 

has made, and will continue to make, 

the SIP generally available at the EPA 

Region 4 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

IV. Proposed Action 

EPA is proposing to approve the 

Commonwealth’s November 17, 2016, 

SIP submission requesting removal of 

401 KAR 50:055 section 1(1) and section 

1(4) from the Kentucky SIP. EPA is 

proposing approval of the SIP revision 

because the Agency has determined that 

it is consistent with the requirements for 

SIP provisions under the CAA. EPA is 

further proposing to determine that such 

SIP revision corrects the deficiencies 

identified in the June 12, 2015 SIP call. 

EPA is not reopening the 2015 SSM SIP 

Action and is taking comment only on 

whether this SIP revision is consistent 

with CAA requirements and whether it 

addresses the substantial inadequacy in 

the specific Kentucky SIP provision 

(401 KAR 50:055 section 1(1)) identified 

in the 2015 SSM SIP Action. 

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. 

See 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. This action merely proposes to 

approve State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this proposed action: 

• 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); 

• 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 

• 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). 

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, this rulemaking does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), nor will it impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

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

Dated: May 31, 2022. 

Daniel Blackman, 

Regional Administrator, Region 4. 

[FR Doc. 2022–12069 Filed 6–6–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2018–0747; FRL–6934.1– 

01–OAR] 

RIN 2060–AV38 

National Emission Standards for 

Hazardous Air Pollutants: 

Miscellaneous Coating Manufacturing 

Technology Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) is proposing 

amendments to the National Emission 

Standards for Hazardous Air Pollutants 

for Miscellaneous Coating 

Manufacturing (MCM NESHAP) 

facilities, as required by the Clean Air 

Act (CAA). In order to complete the 

required technology review that was 

originally promulgated on August 14, 

2020, the EPA is proposing inorganic 


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