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, 29683-29687 [2013-12088]

Download as PDF erowe on DSK2VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 78, No. 98 / Tuesday, May 21, 2013 / Proposed Rules into the zone, give legally enforceable orders to persons or vessels within the zone, and take other actions authorized by the Captain of the Port. (2) ‘‘Public vessel’’ means vessels owned, chartered, or operated by the United States, or by a State or political subdivision thereof. (c) Regulations. (1) In accordance with the general regulations in 33 CFR 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port, Lake Michigan, or his designated representative. (2) This safety zone is closed to all vessel traffic, excepted as may be permitted by the Captain of the Port, Lake Michigan or his designated representative. All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port or his designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed. (3) All vessels must obtain permission from the Captain of the Port or his designated representative to enter, move within, or exit the safety zone established in this section when this safety zone is enforced. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port or a designated representative. While within a safety zone, all vessels must operate at the minimum speed necessary to maintain a safe course. (d) Notice of enforcement or suspension of enforcement. The safety zone established by this section will be enforced only upon notice of the Captain of the Port. The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public including publication in the Federal Register as practicable, in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to Broadcast Notice to Mariners or Local Notice to Mariners. (e) Exemption. Public vessels, as defined in paragraph (b) of this section, are exempt from the requirements in this section. (f) Waiver. For any vessel, the Captain of the Port Lake Michigan or his designated representative may waive any of the requirements of this section, upon finding that operational conditions or other circumstances are such that application of this section is unnecessary or impractical for the purposes of public or environmental safety. VerDate Mar<15>2010 13:19 May 20, 2013 Jkt 229001 Dated: May 3, 2013. M.W. Sibley, Captain, U.S. Coast Guard, Captain of the Port, Lake Michigan. [FR Doc. 2013–12030 Filed 5–20–13; 8:45 am] BILLING CODE 9110–04–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2013–0272; FRL–9816–1] 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 Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: EPA is proposing 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 proposing for approval modifies the Regulation entitled, ‘‘Emissions During Startups, Shutdowns, Malfunctions and Emergencies’’ in the Jefferson County portion of the Kentucky SIP. EPA is proposing approval of 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. DATES: Comments must be received on or before June 20, 2013. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R04– OAR–2013–0272, by one of the following methods: 1. www.regulations.gov: Follow the on-line instructions for submitting comments. 2. Email: R4–RDS@epa.gov. 3. Fax: (404) 562–9019. 4. Mail: EPA–R04–OAR–2013–0272, 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. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 29683 5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. Instructions: Direct your comments to Docket ID No. ‘‘EPA–R04–OAR–2013– 0272.’’ EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI 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 E:\FR\FM\21MYP1.SGM 21MYP1 29684 Federal Register / Vol. 78, No. 98 / Tuesday, May 21, 2013 / Proposed Rules form. Publicly available docket materials are available either electronically in 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 to 4:30, 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 proposing? II. What is the background of the Jefferson County rule on startups, shutdowns, malfunctions (SSM) and emergencies? III. What is EPA’s evaluation of the revisions to the Jefferson County SSM Rule? IV. Why is EPA proposing this action and what is the effect of this proposed action? V. Proposed Action VI. Statutory and Executive Order Reviews I. What action is EPA proposing? EPA is proposing to approve 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 the ‘‘Jefferson County SSM rule’’).1 The revision modifies all seven sections of the existing version of Regulation 1.07 currently in the EPA-approved SIP for Jefferson County. EPA believes that the changes to the Jefferson County SSM rule are consistent with CAA requirements that apply to excess erowe on DSK2VPTVN1PROD with PROPOSALS-1 1 In 2003, the City of Louisville and Jefferson County governments merged and the ‘‘Jefferson County Air Pollution Control District’’ was renamed the ‘‘Louisville Metro Air Pollution Control District.’’ However, each of the regulations in the Jefferson County portion of the Kentucky SIP still has the subheading ‘‘Air Pollution Control District of Jefferson County.’’ Thus, to be consistent with the terminology used in the SIP, we refer throughout this notice to regulations contained in Jefferson County portion of the Kentucky SIP as the ‘‘Jefferson County’’ regulations. VerDate Mar<15>2010 17:56 May 20, 2013 Jkt 229001 emissions during startup, shutdown and malfunction (SSM) events. In addition, EPA believes that these changes will correct existing concerns about the prior version of the Jefferson County SSM rule in the SIP for this Area, as explained below. Please refer to the docket for this rulemaking for the complete text of the adopted provisions. II. What is the background of the Jefferson County Rule on startups, shutdowns, malfunctions (SSM) and emergencies? The regulation of emissions from stationary sources is a part of the Louisville Metro Air Pollution Control District’s program for attaining and maintaining compliance with the national ambient air quality standards (NAAQS) and for meeting other CAA requirements. The current EPAapproved SIP for the Jefferson County area incorporates a prior version of the Jefferson County SSM rule that includes certain provisions applicable to excess emissions from such sources during startup, shutdown, malfunction, and emergency events. EPA published approval of the original version of this rule on January 25, 1980. See 45 FR 6092. On February 11, 1999, Kentucky submitted multiple changes to the Jefferson County portion of the Kentucky SIP, which EPA approved on October 23, 2001. See 66 FR 53658. Among other elements, Kentucky’s February 11, 1999, submittal included several changes to the Jefferson County SSM rule. The submittal added to this rule a definition of ‘‘Emergency’’ in Section 1, Definitions, and a new Section 5, Emergencies, which contains an affirmative defense provision for emergencies that is very similar to the affirmative defense provision of the title V operating permit regulations. See 40 CFR 70.7(g). Additionally, the February 11, 1999, submittal modified Section 2, Excess Emissions, of the rule such that excess emissions would not be deemed in violation of otherwise applicable emission limits in the SIP if, based upon a showing by the owner or operator of the source and an affirmative determination by the District, certain requirements regarding startups and shutdowns, malfunctions, and emergencies are satisfied. Those requirements, as revised by the February 11, 1999, submittal, are specified in the following sections of the Jefferson County SSM rule: Section 3, Startup or Shutdown; Section 4, Malfunctions; Section 5, Emergencies; Section 6, Initial Notification and Reporting Requirements for Malfunctions and Emergencies; and Section 7, Extended Malfunctions and Emergencies. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 Acknowledging deficiencies in the Jefferson County SSM rule, the District proactively adopted changes on June 21, 2005. The District adopted these changes with the intent of correcting inconsistencies between its rule and the CAA and EPA guidance,2 regarding SIP provisions that apply to the treatment of excess emissions that may occur during source startup, shutdown, maintenance, and malfunction events. These changes were included in the March 22, 2011, SIP revision provided to EPA by KDAQ. The most salient features of these latest changes to Jefferson County Regulation 1.07 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 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 evaluation of the revisions to the Jefferson County SSM Rule? EPA has evaluated the revised version of the Jefferson County SSM rule submitted as part of the March 22, 2011, SIP submission from KDAQ on behalf of the District. Based upon this evaluation, EPA believes that the District has made several significant changes that make the Jefferson County SSM rule consistent with CAA requirements and with EPA guidance on SIP provisions relevant to the treatment of excess emissions during SSM events. 2 The District’s Regulatory Impact Analysis for the June 21, 2005, changes to the SSM rule references the following memoranda as part of the basis for the revisions to its SSM rule: ‘‘Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions,’’ Kathleen M. Bennett, September 28, 1982; ‘‘Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions,’’ Kathleen M. Bennett, February 15, 1983; and ‘‘State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,’’ Steven A. Herman, September 20, 1999. E:\FR\FM\21MYP1.SGM 21MYP1 Federal Register / Vol. 78, No. 98 / Tuesday, May 21, 2013 / Proposed Rules erowe on DSK2VPTVN1PROD with PROPOSALS-1 First, the District has explicitly provided that excess emissions from sources due to startup, shutdown, or upset (i.e., malfunction) events are not exempt from compliance with applicable emission limits. Revised Section 2.2 of the Jefferson County SSM rule clearly provides that excess emissions during such events ‘‘shall be deemed in violation of the applicable emission standard.’’ This provision is consistent with EPA’s longstanding interpretation of the CAA to prohibit SIP provisions that include any exemptions for excess emissions during SSM events and requiring that such emissions be treated as violations.3 Second, the District has substantially revised the Jefferson County SSM rule in order to alter provisions that previously had the effect of providing an exemption for emissions during SSM events through the exercise of director’s discretion by the District. The prior version of the rule contained factors that the District could consider in the decision whether or not to grant such a discretionary exemption. Revised Section 2.3 removes the authority of the District to grant discretionary exemptions from compliance with SIP emission standards and in its place provides an ‘‘enforcement discretion’’ provision that provides specific factors for state personnel in their own exercise of enforcement discretion for violations related to startup, shutdown, and upset events. These factors are intended to apply only to the District and do not affect EPA enforcement or citizen enforcement—both of which are separately authorized by the CAA.4 These factors include consideration of the duration and frequency of the emissions; operation/maintenance practices; whether there is a recurring pattern; certain public health impacts associated with the excess emissions, among other factors. Notably, these factors are also not intended to, and do not, operate as an affirmative defense.5 3 See, e.g., ‘‘State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,’’ sent by Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, to the Regional Administrators, Regions I–X, on Sept. 20, 1999. 4 On May 9, 2013, Jefferson County provided EPA with a letter clarifying and confirming that the factors included in Regulation 1.07, Section 2.3, are intended to be discretionary factors that Jefferson County may consider as part of its own enforcement discretion and that the rule does not intend to or purport to apply to any other agency or the public. This letter is a part of the basis for EPA’s action upon the SIP submission and part of the record for the action to be appropriately reflected in the CFR. 5 EPA notes that revised Section 3.4 of the Jefferson County SSM rule provides that either VerDate Mar<15>2010 13:19 May 20, 2013 Jkt 229001 This revised provision is consistent with EPA’s longstanding interpretation of the CAA to permit SIP provisions that address the exercise of enforcement discretion by state personnel, so long as they do not impinge upon the enforcement discretion of EPA or citizens.6 Third, the District has also substantially revised the Jefferson County SSM rule to remove provisions that previously included specific treatment for excess emissions during emergencies. The prior version of the rule included provisions that together appeared to provide an exemption for excess emissions that occurred during emergencies, if the source could meet certain factors that were structured as an affirmative defense. The District has removed the definition of ‘‘emergency’’ that previously appeared in Section 1.1 and removed the provisions applicable to emergencies in Section 5. The prior version of the Jefferson County SSM rule could have operated to exempt excess emissions during such events, and to provide a bar not just to monetary penalties, but also a bar to injunctive relief for the resulting violations of SIP emission standards. Moreover, the factors for the affirmative defense were not consistent with EPA’s guidance for affirmative defense provisions for malfunctions.7 Removal of these provisions from the Jefferson County SSM rule is thus consistent with EPA’s longstanding guidance concerning SIP provisions, both with respect to exemptions for excess emissions and with respect to affirmative defense provisions that startup or shutdown that is necessitated by an upset shall be considered part of the upset. Provision 2.3, which sets forth enforcement discretion factors, refers to Section 3.6 and 4.4 and thus the Jefferson County SSM rule treats startups following a malfunction event in the same manner as it treats all excess emissions for purposes of enforcement discretion. In the context of an enforcement discretion provision, as opposed to an affirmative defense provision for malfunctions, the Jefferson County SSM rule is consistent with the CAA and EPA’s policy and guidance. 6 See ‘‘Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions,’’ sent by Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation, to the Regional Administrators, Regions I–X on Feb. 15, 1983 (indicating the CAA would allow appropriately drawn enforcement discretion provisions in SIPs). 7 See ‘‘State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,’’ sent by Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, to the Regional Administrators, Regions I–X, on Sept. 20, 1999 (indicating that the CAA would allow appropriately drawn affirmative defense provisions in SIPs). PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 29685 would be consistent with CAA requirements. Fourth, the District has revised the provisions of the Jefferson County SSM rule to update and expand the notification requirements for sources in the event of excess emissions related to startup, shutdown, and upset conditions. These provisions relate to the timing and nature of notification that the source is required to make to the District and may be germane to the District’s exercise of enforcement discretion under revised Section 2.3. EPA believes that these updated notification provisions will likely enhance compliance and enforcement efforts within the Jefferson County area and that they otherwise are consistent with CAA requirements because they do not purport to affect the exercise of enforcement discretion by EPA or other parties. Finally, the District substantially revised the Jefferson County SSM rule with respect to ‘‘extended’’ malfunctions and emergencies. Section 9 of the prior version of the rule appeared to allow sources to continue to operate for extended periods of time in the event of a malfunction or emergency, without legal consequence, so long as the source obtained prior authorization from the District. Revised Section 5 of the rule now makes unequivocally clear that, even if the District authorizes continued operation during such an event following a specified process, the excess emissions that occur during that extended period of time remain violations of the applicable SIP emission standards. The revised provision states that the authorization by the District ‘‘shall neither constitute an affirmative defense for violations caused by excess emissions nor preempt the rights of the EPA or any person to take action under federal, state, or local law.’’ EPA believes Revised Section 5 in conjunction with revised Section 2.2 thus makes clear that any excess emissions during such periods constitute violations of the applicable SIP emission standards and that the District, EPA, or others using the citizen suit provision of the CAA may still pursue appropriate enforcement action against the source. The revised provision is thus consistent with EPA’s longstanding interpretation of the CAA to prohibit SIP provisions that include exemptions for excess emissions during SSM events and requiring that such emissions be treated as violations. EPA believes that the revisions to the Jefferson County SSM rule are consistent with the requirements of both section 110(l) and section 193. Under E:\FR\FM\21MYP1.SGM 21MYP1 erowe on DSK2VPTVN1PROD with PROPOSALS-1 29686 Federal Register / Vol. 78, No. 98 / Tuesday, May 21, 2013 / Proposed Rules section 110(l), EPA is prohibited from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirements of the CAA. In this action, EPA believes that the revisions do not interfere with such requirements and in fact strengthen the existing SIP by removing or revising various provisions related to excess emissions during SSM events that included automatic exemptions, director discretion exemptions, affirmative defense provisions, and other provisions that were inconsistent with CAA requirements and would have interfered with effective enforcement of the SIP. Because all of these changes are improvements to the prior version of the Jefferson County SSM rule, and because they are themselves consistent with the requirements of the CAA as interpreted in EPA guidance for SIP provisions, EPA is proposing to find that the revision is consistent with the requirements of section 110(l). Similarly, CAA section 193 prohibits EPA from approving SIP revisions to certain SIP control requirements in effect prior to November 15, 1990, unless the modification insures equivalent or greater emission reductions. The revision at issue in this action does pertain to control requirements that, at least in part, predate November 15, 1990, and thus compliance with section 193 is required. Because all of the revisions are improvements to the prior version of the Jefferson County SSM rule, and because the revised provisions are themselves consistent with the requirements of the CAA as interpreted in EPA guidance for SIP provisions, EPA is proposing that the revision is also consistent with the requirements of section 193. As a result of the improved effectiveness of the enforcement program associated with emissions during SSM, and the explicit determination that such emissions are violations of applicable emission limits, the revision is expected to produce equivalent or greater emission reductions and is thus consistent with CAA section 193. Based upon the foregoing analysis, EPA is proposing to approve the changes to the Jefferson County SSM rule contained in the March 22, 2011, SIP submission from KDAQ on behalf of the District. EPA has determined that the specific changes to the rule are consistent with CAA requirements for SIP provisions that address excess emissions during SSM events, and with EPA guidance concerning such provisions. EPA requests comment on this proposal, and in particular requests VerDate Mar<15>2010 13:19 May 20, 2013 Jkt 229001 comments on its view that the revisions to the Jefferson County SSM rule are consistent with CAA requirements for SIP provisions. EPA notes that in a separate rulemaking action, published on February 22, 2013, EPA identified several deficiencies associated with the Jefferson County SSM rule including: (1) the rule did not consider all excess emissions above SIP emission limits to be ‘‘violations;’’ (2) the rule included insufficiently bounded director’s discretion provisions regarding whether an excess emissions event constituted a violation and thus creating impermissible discretionary exemptions from SIP emission limits; (3) the rule provided an impermissible exemption for excess emissions that occur during ‘‘emergencies;’’ and (4) the rule contained affirmative defense provisions that are not consistent with CAA requirements. See 78 FR 12460, 12507–12508. Today’s action proposing approval of Jefferson County’s revised SSM rule is separate from the February 22, 2013, action. EPA’s action in this proposal does not reopen the public comment period associated with the separate February 22, 2013, action; nor does today’s action purport to revise or amend that separate proposed action. EPA will be taking a separate final action on the February 22, 2013, proposed rulemaking. Today’s action only proposes to approve the revised Jefferson County SSM Rule into the SIP as consistent with the CAA and CAA policy and guidance, for the reasons explained above. IV. Why is EPA proposing this action and what is the effect of this proposed action? The purpose of today’s action is to propose approval of changes to Regulation 1.07 in the Jefferson County portion of the Kentucky SIP. The District determined that the current SIPapproved rule required changes in light of EPA policy memoranda regarding excess emissions from stationary sources, and voluntarily provided a revision to KDAQ who submitted the revised rule to EPA for approval in 2011. The changes to Regulation 1.07, which are being proposed for inclusion into the SIP today, revise the Jefferson County SSM rule to make it consistent with the CAA. If finalized, today’s action would approve part of the revision to the Jefferson County portion of the Kentucky SIP submitted by KDAQ, on behalf of the District, on March 22, 2011. Approval of this revision would change the name of the regulation to ‘‘Excess Emissions During Startups, PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 Shutdowns, and Upset Conditions;’’ clarify that excess emissions due to startup, shutdown or upset condition shall be deemed in violation of the applicable emission standards; augment the source excess emission reporting requirements to improve air quality management; remove the authority of the District to grant discretionary exemptions from compliance with SIP emission standards during SSM events; remove the affirmative defense provision for emergencies; and explicitly state that the District’s decision not to exercise its own enforcement discretion would not preempt enforcement by EPA or other parties. Today’s action does not make any changes or propose any findings related to EPA’s completely separate rulemaking action regarding the current SIP-approved version of the Jefferson County SSM rule proposed on February 22, 2013 (78 FR 12460). V. Proposed Action EPA is proposing to approve the portion of Kentucky’s March 22, 2011, SIP revision pertaining to Jefferson County Regulation 1.07, ‘‘Emissions During Startups, Shutdowns, Malfunctions and Emergencies.’’ This revision renames the regulation ‘‘Excess Emissions During Startups, Shutdowns, and Upset Conditions’’ and makes numerous changes to the Jefferson County SSM rule to bring it into compliance with the CAA and EPA guidance regarding SIP provisions for the correct treatment of excess emissions from sources during SSM events. VI. 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 proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by Commonwealth 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 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.); E:\FR\FM\21MYP1.SGM 21MYP1 Federal Register / Vol. 78, No. 98 / Tuesday, May 21, 2013 / Proposed Rules • 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). 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. List of Subjects in 40 CFR Part 52 erowe on DSK2VPTVN1PROD with PROPOSALS-1 Authority: 42 U.S.C. 7401 et seq. [FR Doc. 2013–12088 Filed 5–20–13; 8:45 am] BILLING CODE 6560–50–P VerDate Mar<15>2010 13:19 May 20, 2013 Jkt 229001 40 CFR Part 228 [EPA–R06–OW–2013–0221; FRL–9814–7] Ocean Dumping; Atchafalaya-West Ocean Dredged Material Disposal Site Designation Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: The EPA is proposing to redesignate the existing Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA) Section 103(b) Atchafalaya-West Ocean Disposal Site (ODMDS-West) as a permanent MPRSA Section 102(c) ocean dredged material disposal site (ODMDS) located adjacent to and west of the Atchafalaya River Bar Channel (ARBC) of Louisiana. The approval for the ODMDS-West use expired in August 2012; therefore, the site can no longer accept shoal material dredged from the ARBC unless it is redesignated as a MPRSA Section 102(c) site by EPA. Studies have shown that use of the ODMDS-West reduces the amount and rate of shoal material runback into the ARBC, and thus, decreases the overall annual maintenance dredging effort needed for the ARBC while providing vessels with a longer period of safe navigation access prior to a maintenance dredging event. Therefore, there is a need to designate a permanent ODMDS on the west side of the ARBC. Approximately 10.8 million cubic yards will be placed every 7 months and must be conducted in accordance with the Site Management and Monitoring Plan. The proposed ODMDS will be monitored periodically to ensure that the site operates as expected. Comments. Comments on this proposed rule and draft Environmental Impact Statement must be received on or before July 5, 2013. ADDRESSES: Submit your comments, identified by Docket No. EPA–R06– OW–2013–0221, by one of the following methods: • Federal e-Rulemaking Portal: https:// www.regulations.gov; follow the online instruction for submitting comments. • Email: Dr. Jessica Franks at franks.jessica@epa.gov. • Fax: Dr. Jessica Franks, Marine and Coastal Section (6WQ–EC) at fax number 214–665–6689. • Mail: Dr. Jessica Franks, Marine and Coastal Section (6WQ–EC), Environmental Protection Agency, Mailcode: (6WQ–EC), 1445 Ross DATES: Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Dated: May 9, 2013. A. Stanley Meiburg, Acting Regional Administrator, Region 4. ENVIRONMENTAL PROTECTION AGENCY PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 29687 Avenue, Suite 1200, Dallas, Texas 75202–2733. Instructions: Direct your comments to Docket No.EPA–R06–OW–2013–0221. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Marine and Coastal Section (6WQ– EC), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202–2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of E:\FR\FM\21MYP1.SGM 21MYP1

Agencies

[Federal Register Volume 78, Number 98 (Tuesday, May 21, 2013)]
[Proposed Rules]
[Pages 29683-29687]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12088]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2013-0272; FRL-9816-1]


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 (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing 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 proposing for approval modifies the Regulation 
entitled, ``Emissions During Startups, Shutdowns, Malfunctions and 
Emergencies'' in the Jefferson County portion of the Kentucky SIP. EPA 
is proposing approval of 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.

DATES: Comments must be received on or before June 20, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2013-0272, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2013-0272, 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are 
only accepted during the Regional Office normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. The Regional Office official hours of business are Monday 
through Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2013-0272.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to EPA without going through 
www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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

[[Page 29684]]

form. Publicly available docket materials are available either 
electronically in 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 to 
4:30, 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 proposing?
II. What is the background of the Jefferson County rule on startups, 
shutdowns, malfunctions (SSM) and emergencies?
III. What is EPA's evaluation of the revisions to the Jefferson 
County SSM Rule?
IV. Why is EPA proposing this action and what is the effect of this 
proposed action?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    EPA is proposing to approve 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 the 
``Jefferson County SSM rule'').\1\ The revision modifies all seven 
sections of the existing version of Regulation 1.07 currently in the 
EPA-approved SIP for Jefferson County. EPA believes that the changes to 
the Jefferson County SSM 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 will correct 
existing concerns about the prior version of the Jefferson County SSM 
rule in the SIP for this Area, as explained below. Please refer to the 
docket for this rulemaking for the complete text of the adopted 
provisions.
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    \1\ In 2003, the City of Louisville and Jefferson County 
governments merged and the ``Jefferson County Air Pollution Control 
District'' was renamed the ``Louisville Metro Air Pollution Control 
District.'' However, each of the regulations in the Jefferson County 
portion of the Kentucky SIP still has the subheading ``Air Pollution 
Control District of Jefferson County.'' Thus, to be consistent with 
the terminology used in the SIP, we refer throughout this notice to 
regulations contained in Jefferson County portion of the Kentucky 
SIP as the ``Jefferson County'' regulations.
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II. What is the background of the Jefferson County Rule on startups, 
shutdowns, malfunctions (SSM) and emergencies?

    The regulation of emissions from stationary sources is a part of 
the Louisville Metro Air Pollution Control District's program for 
attaining and maintaining compliance with the national ambient air 
quality standards (NAAQS) and for meeting other CAA requirements. The 
current EPA-approved SIP for the Jefferson County area incorporates a 
prior version of the Jefferson County SSM rule that includes certain 
provisions applicable to excess emissions from such sources during 
startup, shutdown, malfunction, and emergency events. EPA published 
approval of the original version of this rule on January 25, 1980. See 
45 FR 6092. On February 11, 1999, Kentucky submitted multiple changes 
to the Jefferson County portion of the Kentucky SIP, which EPA approved 
on October 23, 2001. See 66 FR 53658. Among other elements, Kentucky's 
February 11, 1999, submittal included several changes to the Jefferson 
County SSM rule. The submittal added to this rule a definition of 
``Emergency'' in Section 1, Definitions, and a new Section 5, 
Emergencies, which contains an affirmative defense provision for 
emergencies that is very similar to the affirmative defense provision 
of the title V operating permit regulations. See 40 CFR 70.7(g). 
Additionally, the February 11, 1999, submittal modified Section 2, 
Excess Emissions, of the rule such that excess emissions would not be 
deemed in violation of otherwise applicable emission limits in the SIP 
if, based upon a showing by the owner or operator of the source and an 
affirmative determination by the District, certain requirements 
regarding startups and shutdowns, malfunctions, and emergencies are 
satisfied. Those requirements, as revised by the February 11, 1999, 
submittal, are specified in the following sections of the Jefferson 
County SSM rule: Section 3, Startup or Shutdown; Section 4, 
Malfunctions; Section 5, Emergencies; Section 6, Initial Notification 
and Reporting Requirements for Malfunctions and Emergencies; and 
Section 7, Extended Malfunctions and Emergencies.
    Acknowledging deficiencies in the Jefferson County SSM rule, the 
District proactively adopted changes on June 21, 2005. The District 
adopted these changes with the intent of correcting inconsistencies 
between its rule and the CAA and EPA guidance,\2\ regarding SIP 
provisions that apply to the treatment of excess emissions that may 
occur during source startup, shutdown, maintenance, and malfunction 
events. These changes were included in the March 22, 2011, SIP revision 
provided to EPA by KDAQ. The most salient features of these latest 
changes to Jefferson County Regulation 1.07 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 
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.
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    \2\ The District's Regulatory Impact Analysis for the June 21, 
2005, changes to the SSM rule references the following memoranda as 
part of the basis for the revisions to its SSM rule: ``Policy on 
Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions,'' Kathleen M. Bennett, September 28, 1982; ``Policy on 
Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions,'' Kathleen M. Bennett, February 15, 1983; and ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown,'' Steven A. Herman, September 
20, 1999.
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III. What is EPA's evaluation of the revisions to the Jefferson County 
SSM Rule?

    EPA has evaluated the revised version of the Jefferson County SSM 
rule submitted as part of the March 22, 2011, SIP submission from KDAQ 
on behalf of the District. Based upon this evaluation, EPA believes 
that the District has made several significant changes that make the 
Jefferson County SSM rule consistent with CAA requirements and with EPA 
guidance on SIP provisions relevant to the treatment of excess 
emissions during SSM events.

[[Page 29685]]

    First, the District has explicitly provided that excess emissions 
from sources due to startup, shutdown, or upset (i.e., malfunction) 
events are not exempt from compliance with applicable emission limits. 
Revised Section 2.2 of the Jefferson County SSM rule clearly provides 
that excess emissions during such events ``shall be deemed in violation 
of the applicable emission standard.'' This provision is consistent 
with EPA's longstanding interpretation of the CAA to prohibit SIP 
provisions that include any exemptions for excess emissions during SSM 
events and requiring that such emissions be treated as violations.\3\
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    \3\ See, e.g., ``State Implementation Plans (SIPs): Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown,'' sent by Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance, and Robert Perciasepe, 
Assistant Administrator for Air and Radiation, to the Regional 
Administrators, Regions I-X, on Sept. 20, 1999.
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    Second, the District has substantially revised the Jefferson County 
SSM rule in order to alter provisions that previously had the effect of 
providing an exemption for emissions during SSM events through the 
exercise of director's discretion by the District. The prior version of 
the rule contained factors that the District could consider in the 
decision whether or not to grant such a discretionary exemption. 
Revised Section 2.3 removes the authority of the District to grant 
discretionary exemptions from compliance with SIP emission standards 
and in its place provides an ``enforcement discretion'' provision that 
provides specific factors for state personnel in their own exercise of 
enforcement discretion for violations related to startup, shutdown, and 
upset events. These factors are intended to apply only to the District 
and do not affect EPA enforcement or citizen enforcement--both of which 
are separately authorized by the CAA.\4\ These factors include 
consideration of the duration and frequency of the emissions; 
operation/maintenance practices; whether there is a recurring pattern; 
certain public health impacts associated with the excess emissions, 
among other factors. Notably, these factors are also not intended to, 
and do not, operate as an affirmative defense.\5\ This revised 
provision is consistent with EPA's longstanding interpretation of the 
CAA to permit SIP provisions that address the exercise of enforcement 
discretion by state personnel, so long as they do not impinge upon the 
enforcement discretion of EPA or citizens.\6\
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    \4\ On May 9, 2013, Jefferson County provided EPA with a letter 
clarifying and confirming that the factors included in Regulation 
1.07, Section 2.3, are intended to be discretionary factors that 
Jefferson County may consider as part of its own enforcement 
discretion and that the rule does not intend to or purport to apply 
to any other agency or the public. This letter is a part of the 
basis for EPA's action upon the SIP submission and part of the 
record for the action to be appropriately reflected in the CFR.
    \5\ EPA notes that revised Section 3.4 of the Jefferson County 
SSM rule provides that either startup or shutdown that is 
necessitated by an upset shall be considered part of the upset. 
Provision 2.3, which sets forth enforcement discretion factors, 
refers to Section 3.6 and 4.4 and thus the Jefferson County SSM rule 
treats startups following a malfunction event in the same manner as 
it treats all excess emissions for purposes of enforcement 
discretion. In the context of an enforcement discretion provision, 
as opposed to an affirmative defense provision for malfunctions, the 
Jefferson County SSM rule is consistent with the CAA and EPA's 
policy and guidance.
    \6\ See ``Policy on Excess Emissions During Startup, Shutdown, 
Maintenance, and Malfunctions,'' sent by Kathleen M. Bennett, 
Assistant Administrator for Air, Noise, and Radiation, to the 
Regional Administrators, Regions I-X on Feb. 15, 1983 (indicating 
the CAA would allow appropriately drawn enforcement discretion 
provisions in SIPs).
---------------------------------------------------------------------------

    Third, the District has also substantially revised the Jefferson 
County SSM rule to remove provisions that previously included specific 
treatment for excess emissions during emergencies. The prior version of 
the rule included provisions that together appeared to provide an 
exemption for excess emissions that occurred during emergencies, if the 
source could meet certain factors that were structured as an 
affirmative defense. The District has removed the definition of 
``emergency'' that previously appeared in Section 1.1 and removed the 
provisions applicable to emergencies in Section 5. The prior version of 
the Jefferson County SSM rule could have operated to exempt excess 
emissions during such events, and to provide a bar not just to monetary 
penalties, but also a bar to injunctive relief for the resulting 
violations of SIP emission standards. Moreover, the factors for the 
affirmative defense were not consistent with EPA's guidance for 
affirmative defense provisions for malfunctions.\7\ Removal of these 
provisions from the Jefferson County SSM rule is thus consistent with 
EPA's longstanding guidance concerning SIP provisions, both with 
respect to exemptions for excess emissions and with respect to 
affirmative defense provisions that would be consistent with CAA 
requirements.
---------------------------------------------------------------------------

    \7\ See ``State Implementation Plans (SIPs): Policy Regarding 
Excess Emissions During Malfunctions, Startup, and Shutdown,'' sent 
by Steven A. Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, to the Regional Administrators, Regions I-X, 
on Sept. 20, 1999 (indicating that the CAA would allow appropriately 
drawn affirmative defense provisions in SIPs).
---------------------------------------------------------------------------

    Fourth, the District has revised the provisions of the Jefferson 
County SSM rule to update and expand the notification requirements for 
sources in the event of excess emissions related to startup, shutdown, 
and upset conditions. These provisions relate to the timing and nature 
of notification that the source is required to make to the District and 
may be germane to the District's exercise of enforcement discretion 
under revised Section 2.3. EPA believes that these updated notification 
provisions will likely enhance compliance and enforcement efforts 
within the Jefferson County area and that they otherwise are consistent 
with CAA requirements because they do not purport to affect the 
exercise of enforcement discretion by EPA or other parties.
    Finally, the District substantially revised the Jefferson County 
SSM rule with respect to ``extended'' malfunctions and emergencies. 
Section 9 of the prior version of the rule appeared to allow sources to 
continue to operate for extended periods of time in the event of a 
malfunction or emergency, without legal consequence, so long as the 
source obtained prior authorization from the District. Revised Section 
5 of the rule now makes unequivocally clear that, even if the District 
authorizes continued operation during such an event following a 
specified process, the excess emissions that occur during that extended 
period of time remain violations of the applicable SIP emission 
standards. The revised provision states that the authorization by the 
District ``shall neither constitute an affirmative defense for 
violations caused by excess emissions nor preempt the rights of the EPA 
or any person to take action under federal, state, or local law.'' EPA 
believes Revised Section 5 in conjunction with revised Section 2.2 thus 
makes clear that any excess emissions during such periods constitute 
violations of the applicable SIP emission standards and that the 
District, EPA, or others using the citizen suit provision of the CAA 
may still pursue appropriate enforcement action against the source. The 
revised provision is thus consistent with EPA's longstanding 
interpretation of the CAA to prohibit SIP provisions that include 
exemptions for excess emissions during SSM events and requiring that 
such emissions be treated as violations.
    EPA believes that the revisions to the Jefferson County SSM rule 
are consistent with the requirements of both section 110(l) and section 
193. Under

[[Page 29686]]

section 110(l), EPA is prohibited from approving any SIP revision that 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress or any other applicable requirements of 
the CAA. In this action, EPA believes that the revisions do not 
interfere with such requirements and in fact strengthen the existing 
SIP by removing or revising various provisions related to excess 
emissions during SSM events that included automatic exemptions, 
director discretion exemptions, affirmative defense provisions, and 
other provisions that were inconsistent with CAA requirements and would 
have interfered with effective enforcement of the SIP. Because all of 
these changes are improvements to the prior version of the Jefferson 
County SSM rule, and because they are themselves consistent with the 
requirements of the CAA as interpreted in EPA guidance for SIP 
provisions, EPA is proposing to find that the revision is consistent 
with the requirements of section 110(l).
    Similarly, CAA section 193 prohibits EPA from approving SIP 
revisions to certain SIP control requirements in effect prior to 
November 15, 1990, unless the modification insures equivalent or 
greater emission reductions. The revision at issue in this action does 
pertain to control requirements that, at least in part, predate 
November 15, 1990, and thus compliance with section 193 is required. 
Because all of the revisions are improvements to the prior version of 
the Jefferson County SSM rule, and because the revised provisions are 
themselves consistent with the requirements of the CAA as interpreted 
in EPA guidance for SIP provisions, EPA is proposing that the revision 
is also consistent with the requirements of section 193. As a result of 
the improved effectiveness of the enforcement program associated with 
emissions during SSM, and the explicit determination that such 
emissions are violations of applicable emission limits, the revision is 
expected to produce equivalent or greater emission reductions and is 
thus consistent with CAA section 193.
    Based upon the foregoing analysis, EPA is proposing to approve the 
changes to the Jefferson County SSM rule contained in the March 22, 
2011, SIP submission from KDAQ on behalf of the District. EPA has 
determined that the specific changes to the rule are consistent with 
CAA requirements for SIP provisions that address excess emissions 
during SSM events, and with EPA guidance concerning such provisions. 
EPA requests comment on this proposal, and in particular requests 
comments on its view that the revisions to the Jefferson County SSM 
rule are consistent with CAA requirements for SIP provisions.
    EPA notes that in a separate rulemaking action, published on 
February 22, 2013, EPA identified several deficiencies associated with 
the Jefferson County SSM rule including: (1) the rule did not consider 
all excess emissions above SIP emission limits to be ``violations;'' 
(2) the rule included insufficiently bounded director's discretion 
provisions regarding whether an excess emissions event constituted a 
violation and thus creating impermissible discretionary exemptions from 
SIP emission limits; (3) the rule provided an impermissible exemption 
for excess emissions that occur during ``emergencies;'' and (4) the 
rule contained affirmative defense provisions that are not consistent 
with CAA requirements. See 78 FR 12460, 12507-12508. Today's action 
proposing approval of Jefferson County's revised SSM rule is separate 
from the February 22, 2013, action. EPA's action in this proposal does 
not reopen the public comment period associated with the separate 
February 22, 2013, action; nor does today's action purport to revise or 
amend that separate proposed action. EPA will be taking a separate 
final action on the February 22, 2013, proposed rulemaking. Today's 
action only proposes to approve the revised Jefferson County SSM Rule 
into the SIP as consistent with the CAA and CAA policy and guidance, 
for the reasons explained above.

IV. Why is EPA proposing this action and what is the effect of this 
proposed action?

    The purpose of today's action is to propose approval of changes to 
Regulation 1.07 in the Jefferson County portion of the Kentucky SIP. 
The District determined that the current SIP-approved rule required 
changes in light of EPA policy memoranda regarding excess emissions 
from stationary sources, and voluntarily provided a revision to KDAQ 
who submitted the revised rule to EPA for approval in 2011. The changes 
to Regulation 1.07, which are being proposed for inclusion into the SIP 
today, revise the Jefferson County SSM rule to make it consistent with 
the CAA.
    If finalized, today's action would approve part of the revision to 
the Jefferson County portion of the Kentucky SIP submitted by KDAQ, on 
behalf of the District, on March 22, 2011. Approval of this revision 
would change the name of the regulation to ``Excess Emissions During 
Startups, Shutdowns, and Upset Conditions;'' clarify that excess 
emissions due to startup, shutdown or upset condition shall be deemed 
in violation of the applicable emission standards; augment the source 
excess emission reporting requirements to improve air quality 
management; remove the authority of the District to grant discretionary 
exemptions from compliance with SIP emission standards during SSM 
events; remove the affirmative defense provision for emergencies; and 
explicitly state that the District's decision not to exercise its own 
enforcement discretion would not preempt enforcement by EPA or other 
parties. Today's action does not make any changes or propose any 
findings related to EPA's completely separate rulemaking action 
regarding the current SIP-approved version of the Jefferson County SSM 
rule proposed on February 22, 2013 (78 FR 12460).

V. Proposed Action

    EPA is proposing to approve the portion of Kentucky's March 22, 
2011, SIP revision pertaining to Jefferson County Regulation 1.07, 
``Emissions During Startups, Shutdowns, Malfunctions and Emergencies.'' 
This revision renames the regulation ``Excess Emissions During 
Startups, Shutdowns, and Upset Conditions'' and makes numerous changes 
to the Jefferson County SSM rule to bring it into compliance with the 
CAA and EPA guidance regarding SIP provisions for the correct treatment 
of excess emissions from sources during SSM events.

VI. 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 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by Commonwealth 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 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.);

[[Page 29687]]

     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).
    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.

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 9, 2013.
 A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2013-12088 Filed 5-20-13; 8:45 am]
BILLING CODE 6560-50-P