[Federal Register Volume 79, Number 111 (Tuesday, June 10, 2014)]
[Rules and Regulations]
[Pages 33101-33107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13429]
[[Page 33101]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2013-0272; FRL-9911-96-Region 4]
Approval and Promulgation of Implementation Plans; Kentucky;
Approval of Revisions to the Jefferson County Portion of the Kentucky
SIP; Emissions During Startups, Shutdowns, and Malfunctions
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve part of a revision to the Kentucky State
Implementation Plan (SIP), submitted by the Commonwealth of Kentucky,
through the Kentucky Division for Air Quality (KDAQ), on March 22,
2011. The proposed revision was submitted by KDAQ on behalf of the
Louisville Metro Air Pollution Control District (District), which has
jurisdiction over Jefferson County, Kentucky. The portion of the
revision that EPA is approving modifies the Regulation entitled
``Emissions During Startups, Shutdowns, Malfunctions and Emergencies''
in the Jefferson County portion of the Kentucky SIP. EPA is approving
this portion of the March 22, 2011, SIP revision because the Agency has
determined that it is in accordance with the requirements for SIP
provisions under the Clean Air Act (CAA or Act). EPA will act on the
other portions of KDAQ's March 22, 2011, submittal, which are severable
and unrelated, in a separate action. EPA is also responding to comments
received on its May 21, 2013, proposed rulemaking.
DATES: This rule will be effective July 10, 2014.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2013-0272. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Joel Huey, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. Mr. Huey may be reached by
phone at (404) 562-9104 or via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA taking?
II. What is the background for EPA's action?
III. What is EPA's response to comments?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is approving a revision to the Jefferson County portion of the
Kentucky SIP to incorporate revisions to Jefferson County Regulation
1.07, ``Emissions During Startups, Shutdowns, Malfunctions and
Emergencies'' (referred to hereafter as ``Rule 1.07''). The revision
modifies all seven sections of the existing version of Rule 1.07
currently in the EPA-approved SIP for Jefferson County. These changes
to Rule 1.07 became effective in Jefferson County on July 1, 2005. EPA
believes that the changes to this rule are consistent with CAA
requirements that apply to excess emissions during startup, shutdown
and malfunction (SSM) events. In addition, EPA believes that these
changes correct existing concerns about Rule 1.07 in the Jefferson
County portion of the Kentucky SIP, as explained below. Please refer to
the docket for this rulemaking for the complete text of the adopted
provisions.
II. What is the background for EPA's action?
On March 22, 2011, KDAQ submitted a request for EPA approval of a
SIP submittal containing proposed revisions to the Regulation entitled
``Emissions During Startups, Shutdowns, Malfunctions and Emergencies''
in the Jefferson County portion of the Kentucky SIP. In an action
published on May 21, 2013 (78 FR 29683), EPA proposed to approve the
proposed revisions. As noted in that proposal notice, the Louisville
Metro Air Pollution Control District proactively adopted changes on
June 21, 2005, with the intent of correcting inconsistencies between
its rule and the CAA and EPA guidance regarding SIP provisions that
apply to the treatment of excess emissions that may occur during source
SSM events. The changes to Rule 1.07, which were included in the March
22, 2011, SIP revision provided to EPA by KDAQ, include: (1) Changing
the name of the regulation from ``Emissions During Startups, Shutdowns,
Malfunctions and Emergencies'' to ``Excess Emissions During Startups,
Shutdowns, and Upset Conditions''; (2) clarifying that excess emissions
from a process or process equipment due to startup, shutdown, or upset
(i.e., malfunction) condition shall be deemed in violation of the
applicable emission standards; (3) removing the authority of the
District to grant discretionary exemptions from compliance with SIP
emission standards during SSM events; (4) augmenting the source excess
emission reporting requirements to assist the District in evaluating
whether ambient standards and goals have been exceeded and whether
enforcement actions are needed to protect public health and welfare;
and (5) removing the provisions that created exemptions for excess
emissions during emergencies based upon factors comparable to an
affirmative defense.
III. What is EPA's response to comments?
EPA received numerous comments on the May 21, 2013, rulemaking
proposing to approve a revision to the Regulation entitled ``Emissions
During Startups, Shutdowns, Malfunctions and Emergencies'' in the
Jefferson County portion of the Kentucky SIP. Specifically, the
Louisville Gas and Electric and Kentucky Utilities Energy Company
(LG&E) provided comments adverse to the proposed rulemaking, and a
number of environmental organizations and approximately 74 citizens
provided comments supporting the proposed rulemaking. All of the
comments received by EPA are included in the docket for today's final
action using Docket ID EPA-R04-OAR-2013-0272. A summary of the comments
and EPA's responses are provided below.
The adverse comments provided by LG&E consist primarily of
technical concerns associated with the administration of the revised
version of Rule 1.07 during SSM events. These technical concerns,
however, do not appear to have been raised by LG&E at earlier stages of
the rulemaking process when these revisions were being
[[Page 33102]]
considered at the state level.\1\ EPA notes that these types of
concerns are more appropriately raised first during the rule
development process undertaken by a state, rather than later during
EPA's evaluation of a submitted SIP revision. Nevertheless, EPA has
evaluated the specific technical concerns raised by the commenter,
identified as comments 1 through 8 below, and provides detailed
responses. EPA has determined that the revisions to Rule 1.07 are
consistent with the CAA and applicable EPA guidance, and therefore the
Agency is approving these revisions into the Kentucky SIP as it applies
to Jefferson County.
---------------------------------------------------------------------------
\1\ LG&E did provide comments to the Commonwealth, however,
those comments did not reflect the issues raised here by the
Company. See EPA Docket Number EPA-R04-OAR-2013-0272.
---------------------------------------------------------------------------
Comment 1: The commenter asserted that the revised version of Rule
1.07 as ``written and presently enforced'' is ``having a negative and
unnecessary impact on LG&E and KU Energy LLC's operations and
customers'' and that ``continued enforcement could have an escalated
and even more detrimental impact on electric reliability and customer
costs.''
Response 1: The commenter provided no specific information
supporting its contentions that the revised rule is having negative or
unnecessary impacts on LG&E's operations and customers. EPA is aware of
one action taken by the District in recent years to enforce SIP
requirements consistent with revised Rule 1.07 and two other Jefferson
County rules at the LG&E Cane Run Power Plant in Louisville. That
enforcement action resulted in a requirement that the source take
corrective action and pay penalties pursuant to an administrative
settlement.\2\ Such enforcement actions are intended to encourage
better source compliance with applicable environmental regulations that
are in place for the protection of the environment and human health.
---------------------------------------------------------------------------
\2\ See Agreed Board Order No. 12-01, Louisville Metro Air
Pollution Control Board, Incident Nos. 05933 and 06082 regarding,
among other things, failure to report excess particulate emissions
from the sludge processing plant on five days in August 2011. See
EPA Docket Number EPA-R04-OAR-2013-0272.
---------------------------------------------------------------------------
With respect to how the revised Rule 1.07 is written, the revisions
reflect the District's decision to bring it into compliance with CAA
requirements and thus warrant approval by EPA into the Commonwealth's
SIP. With respect to how the District elects to enforce SIP
requirements consistent with Rule 1.07, that likewise reflects the
District's proper exercise of its enforcement discretion authority,
consistent with CAA requirements. By contrast, EPA believes that SIP
provisions that allow for automatic and discretionary exemptions for
excess emissions during SSM events, such as those eliminated by the
District in the revised version of Rule 1.07, allow facilities to be
less diligent in minimizing pollutant emissions during such times and
that this can result in unnecessary adverse impacts on citizens,
including customers of LG&E. The commenter's concern that it may be
required to comply with SIP requirements as a result of the revisions
to Rule 1.07 through enforcement actions is not a basis for EPA to
disapprove a SIP revision that complies with CAA requirements.
Comment 2: The commenter claimed that the District's assertion that
an electric generating unit (EGU) should be able to operate in
compliance with emission standards during startup, shutdown and upset
periods is ``technically infeasible and goes against past EPA actions
and findings pertaining to emissions during these periods.''
Response 2: The commenter did not provide specific facts or
information to support this broad claim regarding EGU operation.
Furthermore, EPA disagrees with the basic premise stated by the
commenter for multiple reasons. First, the commenter asserted that EGUs
cannot operate in compliance with emission standards during startup and
shutdown. EPA disagrees with this presumption. Startup and shutdown are
normal modes of source operation, and it is technically feasible for
sources to meet emission standards during such periods of operation.
When appropriate, emission standards may entail imposition of different
numerical levels or averaging periods allowed during startup and
shutdown or may require imposition of different forms of emission
control during startup and shutdown. Rather than allowing EGUs to have
impermissible exemptions from applicable emission limits during SSM
events, the District has elected to require sources to meet the
applicable SIP emission limits at all times, and this decision is
consistent with CAA requirements.
Second, the commenter claimed that the District's expectation that
sources meet emission standards during startup and shutdown ``goes
against past Agency actions.'' The commenter did not state which
``Agency actions'' it was referring to, and the commenter also failed
to note that EPA's own recent regulations pertaining to various source
categories do in fact impose numerical emission limits upon sources
that apply at all times, including startup, shutdown and malfunction
periods. For example, in 2012 EPA amended the National Emission
Standards for Hazardous Air Pollutant (NESHAP) Emissions for Steel
Pickling-HCl Process Facilities by adding provisions requiring that the
emission limits of the rule apply at all times, including during SSM
periods.\3\ As a more recent example, EPA revised the NESHAPs for Group
IV Polymers and Resins, Pesticide Active Ingredient Production, and
Polyether Polyols Production by eliminating the exemption for SSM
periods so that the emission standards in each rule apply at all
times.\4\
---------------------------------------------------------------------------
\3\ See National Emission Standards for Hazardous Air Pollutant
Emissions: Hard and Decorative Chromium Electroplating and Chromium
Anodizing Tanks; and Steel Pickling-HCl Process Facilities and
Hydrochloric Acid Regeneration Plants; Residual Risk and Technology
Review; Final Rule (77 FR 58219, September 19, 2012).
\4\ See National Emission Standards for Hazardous Air Pollutant
Emissions: Group IV Polymers and Resins; Pesticide Active Ingredient
Production; and Polyether Polyols Production (79 FR 17339, March 27,
2014).
---------------------------------------------------------------------------
Third, the commenter disregarded EPA's longstanding interpretation
of the CAA with respect to SIP provisions addressing emissions during
SSM events. Since at least 1982, EPA's interpretation of the CAA has
been that periods of startup and shutdown of process equipment are part
of the normal operation of a source and should be accounted for in the
design and implementation or the operating procedure for the process
and control equipment. Accordingly, careful planning can be reasonably
expected to eliminate violations of emission limitations during such
periods.\5\
---------------------------------------------------------------------------
\5\ See, e.g., Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions, from Kathleen M. Bennett,
Assistant Administrator for Air, Noise and Radiation to Regional
Administrators, Regions I-X, September 28, 1982.
---------------------------------------------------------------------------
Fourth, the commenter implied that because compliance with emission
limits during malfunctions is ``technically infeasible,'' sources
should be entitled to exemptions from applicable SIP emission limits
and thus excused for violations due to excess emissions during such
events. EPA has long interpreted the CAA to prohibit exemptions for
excess emissions during malfunctions and to require that the excess
emissions be treated as violations.\6\ EPA's own recent regulations
provide no such exemptions
[[Page 33103]]
for excess emissions during malfunctions as the courts have held that
no such exemptions are permissible because emission limits must apply
continuously.
---------------------------------------------------------------------------
\6\ See, e.g., State Implementation Plans (SIPs): Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown, from Steven A, Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe,
Assistant Administrator for Air and Radiation, to Regional
Administrators, Regions I-X, September 20, 1999 (the 1999 SSM
Policy).
---------------------------------------------------------------------------
Finally, EPA notes that the District, in addition to be being
correct that the CAA requires sources to be subject to emission
limitations at all times, including during SSM events, has discretion
to elect how to regulate air pollutant emissions, consistent with CAA
requirements. The District has authority to develop SIP provisions that
impose appropriate alternative emission limitations applicable during
startup and shutdown, consistent with EPA's guidance for such
provisions in the 1999 SSM Policy, but the District is not required to
do so. In adopting this rule revision, the District has determined that
sources do not need exemptions for SSM events and should be required to
meet the otherwise applicable SIP emission limits at all times. By
removing the exemptions for SSM events, the District may seek to limit
the number of SSM events, the duration of such events, and the amount
of excess emissions during such events in order to meet CAA
requirements and to protect public health. For the District to elect to
do so is reasonable and also consistent with CAA requirements. EPA's
duty under section 110(k) of the CAA is to act upon submitted SIP
revisions and to approve those that meet applicable CAA requirements.
Comment 3: The commenter stated that emission standards are
developed as limits to assure a source does not create an issue with
National Ambient Air Quality Standards (NAAQS) based on ``full load
normal operation.''
Response 3: EPA disagrees with the commenter's limited view of the
purpose of emission limits in SIPs. The CAA requires the imposition of
SIP emission limits on sources for a variety of purposes, including for
attainment and maintenance of the NAAQS, protection of PSD increments,
and protection of visibility. Even with respect to attainment and
maintenance of the NAAQS, however, the commenter is incorrect
concerning the way in which states may devise the required emission
limits. Pursuant to the CAA, each state is required to adopt and submit
to the Administrator a plan that provides for implementation,
maintenance, and enforcement of the NAAQS within such state. Each such
plan must include enforceable emission limitations and other control
measures, means, or techniques, as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements of the Act. See CAA sections 110(a)(1) and (2). Additional
requirements apply in certain areas, such as requirements that sources
meet a reasonably available control measure (RACM) or reasonably
available control technology (RACT) level of control in areas
designated nonattainment for purposes of the NAAQS. See, e.g., CAA
sections 172(c), 188, and 189 (applicable to areas designated
nonattainment for purposes of particulate matter NAAQS).
In particular, the Agency disagrees that states must develop all
emission standards to limit emissions only during ``full load normal
operation.'' States have discretion as to how they arrive at
appropriately protective emission limitations, and their approach may
or may not be based only upon evaluation of emissions during ``full
load normal operation.'' Nevertheless, the otherwise applicable
emission limitations adopted by the state and approved into the SIP
apply at all times unless the applicable provisions include alternative
emission limitations under specific circumstances, such as during
startup or shutdown.
EPA also notes that, in accordance with CAA section 302(k), SIPs
must contain emission limitations that ``limit the quantity, rate, or
concentration of emissions of air pollutants on a continuous basis.''
EPA has reiterated these requirements of the CAA with respect to SIP
provisions in a recent proposal.\7\ Court decisions confirm that this
requirement for continuous compliance prohibits exemptions for excess
emissions during SSM events.\8\ Exemptions from SIP emission limits
would authorize sources to emit pollutants during such periods in
quantities that could interfere with attainment and maintenance of the
NAAQS, protection of PSD increments, and protection of visibility.
---------------------------------------------------------------------------
\7\ See ``State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction; Proposed Rule,'' 78 FR 12460 at
12470, February 22, 2013.
\8\ See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C.
Cir. 2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th Cir.
2012).
---------------------------------------------------------------------------
Comment 4: The commenter stated that ``[d]uring periods of startup,
certain emissions control equipment (i.e., electrostatic precipitator,
selective catalytic reduction, pulsed jet fabric filters) cannot be
activated until specific temperatures are reached from operation of the
source.'' Based on this assertion, the commenter argued, ``[i]t follows
that a source required to utilize such emission control equipment
should not be held to a numerical standard that was developed for
limiting emissions during full load, normal operation.''
Response 4: The main premise of the commenter's argument is that
some existing control measures at a source may not function, or
function as effectively, during all modes of source operation. EPA
understands that certain emission control equipment at some sources are
not fully operational in some circumstances, such as when sufficient
temperatures have not been reached, as described by the commenter. EPA
does not agree, however, that ``it follows'' automatically that sources
should be excused from meeting any emission limitations during startup.
As noted above, SIPs must contain emission limitations that apply on a
continuous basis. EPA also does not necessarily agree that sources are
incapable of meeting emission limitations that may have been developed
based upon full load operation. Sources that have difficulty meeting
existing emission limitations during startup should take steps to
reduce emissions during such events. These steps may include changes to
the facility's operations or installation of supplemental control
measures. As also noted above, the District has the authority to
establish appropriate alternative emission limitations to apply during
startup periods but is not required to do so. The District has
exercised its discretion to revise Rule 1.07 such that the SIP does not
provide for exemptions to otherwise applicable emission limitations
during startup events.
Comment 5: The commenter claimed that ``during periods of startup,
although an emission rate may be exceeded, the mass emissions are
actually very low in comparison to normal operation because volumetric
flow is very low during startup.'' Based upon this assertion, the
commenter argued that ``concerns with emissions that affect the NAAQS
are negated.''
Response 5: As noted above, EPA's interpretation of the CAA is that
periods of startup are part of the normal operation of a source. Here,
EPA interprets the commenter's reference to ``normal operation'' to
mean full load operation. EPA disagrees with the basis of the
commenter's argument--that emissions rate exceedances are of less
concern when they occur during periods of startup than during full load
operation because the mass emissions may be lower in comparison to full
load operation. The relatively lower flow and lower gas stream
temperatures that may be associated with a startup period could result
in less dispersion and transport of pollutants. As a result,
[[Page 33104]]
communities located close to the facility could experience greater
adverse impacts during startup than during full load operation, even if
the rate of total pollutant emissions is lower by mass. The District's
revisions to Rule 1.07 eliminated impermissible exemptions that
precluded the District, the Commonwealth, EPA and citizens from taking
legal action to require sources to make reasonable efforts to reduce
these emissions.
Comment 6: The commenter advocated that EPA should make clear that
``certain measures, including good engineering combustion and pollution
control practices, are an appropriate limitation to apply during
startup, shutdown and upset condition periods.'' The commenter asserted
that EPA has promulgated work practice standards to minimize emissions
during these periods in both the utility Mercury and Air Toxics
Standards (MATS) and the boiler Maximum Achievable Control Technology
(MACT) rules and should, to the extent possible, address such emissions
in a consistent manner under all CAA regulatory programs. The
implication of the commenter's statements is that EPA should require
the District to adopt some other mode or means of control of sources to
apply during SSM events.
Response 6: EPA agrees that states have discretion to determine how
to regulate emissions during startup and shutdown events in most SIP
provisions, consistent with CAA requirements, but SIP emission limits
may not include exemptions for emissions during startup and shutdown
events. Instead, states may include alternative emission limits for
such modes of source operation so long as they are consistent with CAA
requirements. EPA's 1999 SSM Policy includes guidance to states that
elect to develop such alternative limits to apply during startup and
shutdown. EPA notes that emission limits that apply during specific
modes of source operation such as startup and shutdown do not
necessarily need to be expressed as a numerical limit, so long as they
meet other CAA requirements with respect to enforceability and the
requisite level of control (e.g., RACT or RACM). Similarly, the
emission limits applicable during startup and shutdown do not
necessarily have to be set at the same numerical level as during other
modes of source operation, so long as they otherwise meet all CAA
requirements. By contrast, however, EPA considers it impracticable to
develop alternative SIP emission limits (whether stated numerically or
as requirement for a particular control or technique) that apply
specifically during malfunctions because, by definition, malfunctions
are events that are not reasonably foreseeable, are not avoidable
through appropriate source design, operation and maintenance, and are
not controllable. Accordingly, sources are required to meet the
otherwise applicable SIP emission limits during malfunctions, and any
excess emissions during such events are considered violations. To the
extent, however, that the commenter suggests that EPA should require
states to develop alternative emission limits that apply during startup
and shutdown, in lieu of the otherwise applicable SIP emission limits,
EPA disagrees that its role is to require states to do so.
The commenter also suggests that SIP rules should be consistent
with federally promulgated standards and points to, as examples, the
rules often referred to as the MATS and Boiler MACT rules. The MATS
rule established standards for hazardous air pollutant (HAP) emissions
from coal- and oil-fired electric utility steam generating units (40
CFR part 63 subpart UUUUU). See 77 FR 9304 (February 16, 2012). In the
same rulemaking that promulgated the MATS rule, EPA also finalized
changes to the New Source Performance Standards (NSPS) that apply to
coal- and oil-fired EGUs, industrial-commercial-institutional steam
generating units, and small industrial commercial-institutional steam
generating units (40 CFR part 60 subparts D, Da, Db, and Dc), often
referred to as the Utility NSPS rule.\9\ The major source Boiler MACT
rule was published on March 21, 2011 (76 FR 15608), and applies to
industrial, commercial, and institutional boilers and process heaters
that are located at, or are part of, a major source \10\ of HAP
emissions (40 CFR 63 subpart DDDDD). The area source Boiler MACT, also
published on March 21, 2011 (76 FR 15554), applies to industrial,
commercial, and institutional boilers that are located at, or are part
of, an area source \11\ of HAP emissions (40 CFR 63 subpart
JJJJJJ).\12\
---------------------------------------------------------------------------
\9\ Following promulgation of the MATS NESHAP and Utility NSPS,
the EPA received petitions for reconsideration of numerous
provisions of both rules pursuant to CAA section 307(d)(7)(B).
Subsequently, EPA proposed reconsideration of specific provisions of
those rules, including the requirements applicable during periods of
startup and shutdown. 77 FR 71323 (November 30, 2012). In that
action, EPA proposed to revise the definitions of ``startup'' and
``shutdown'' as set forth in 40 CFR 63.10042 and to revise the work
practice standard provisions as set forth in Table 3 to Subpart
UUUUU. The EPA has not yet taken final action on the proposed
revisions to those requirements.
\10\ For the purposes of subpart DDDDD, a major source of HAPs
is as defined in 40 CFR 63.2, except that for oil and natural gas
production facilities a major source of HAPs is as defined in 40 CFR
63.761.
\11\ For the purposes of subpart JJJJJJ, an area source of HAPs
is as defined in 40 CFR 63.2, except as specified in 40 CFR
63.11195.
\12\ Revisions to the major source Boiler MACT and the area
source Boiler MACT were published on January 31, 2013 (78 FR 7138),
and on February 1, 2013 (78 FR 7488), respectively. In those
actions, EPA revised the definitions of ``startup'' and ``shutdown''
as set forth in 40 CFR 63.7575 and 40 CFR 63. 11237 and revised the
work practice standard provisions as set forth in Table 3 to subpart
DDDDD and in Table 3 to subpart JJJJJJ.
---------------------------------------------------------------------------
Under the MATS, Utility NSPS, and Boiler MACT rules, numeric
emission limits generally apply for all relevant air pollutants and
their surrogates (except organic HAPs) and for all periods of
operation. For periods of startup and shutdown, however, these rules
require facilities to comply with work practice standards \13\ for
minimizing emissions in lieu of numeric emission limits.
---------------------------------------------------------------------------
\13\ The work practice standards under these rules are contained
in Table 3 of Subpart UUUUU, Table 3 of subpart DDDDD, and Table 3
of subpart JJJJJJ. These standards require several actions by
sources, such as following manufacturer's recommended procedures for
minimizing startup and shutdown periods, tuning, maintaining and
inspecting burners and associated combustion controls, keeping
records of activity and measurements, using either natural gas or
distillate oil for ignition during startup, and operating all
control devices necessary to meet the normal operating standards.
---------------------------------------------------------------------------
EPA understands the commenter's suggestion that regulatory
requirements applicable to sources for purposes of SIPs should be
consistent, ``to the extent possible,'' with the requirements of other
CAA programs. On this point, EPA notes that the rules established under
the NSPS and NESHAP programs are designed to achieve different
objectives of the CAA than that of SIPs. They are technology-based,
industry-specific standards that are nationally uniform in limiting the
amount of emissions allowed from sources. Under section 111 of the CAA,
an NSPS must reflect the degree of emission limitation and the
percentage reduction achievable by new sources or modified existing
sources through application of the best technological system of
continuous emission reduction that the Administrator determines has
been adequately demonstrated. Similarly, under section 112 of the CAA,
a NESHAP must require the maximum degree of reduction in emissions of
hazardous air pollutants achievable by new sources and existing sources
as determined by the Administrator. In setting standards under sections
111 and 112, the Administrator must take into consideration the cost of
achieving such emission reductions and any non-air quality health and
environmental
[[Page 33105]]
impact and energy requirements; under section 112, the statute requires
a minimum stringency standard for existing sources based on the average
emission limitation achieved in practice by the best controlled 12
percent of sources and a minimum stringency standard for new sources
based on the best controlled similar source.
In contrast to the NSPS and NESHAP programs, SIPs are EPA-approved
state plans to provide for the attainment and maintenance of the NAAQS
and to meet other requirements such as protecting PSD increments and
visibility. Under section 110 of the Act, each state must adopt a plan
that it determines will provide for air quality that meets the primary
and secondary NAAQS within the state. Consequently, SIPs must be
consistent with attainment and maintenance of the NAAQS and prevention
of significant deterioration of air quality throughout the state.
Exemptions from SIP emission limits, such as that allowed under the
prior version of Rule 1.07, are not appropriate because any emissions
above the SIP allowable rate may cause or contribute to violations of
the ambient air quality standards and interfere with enforcement of
those SIP limits. Thus, EPA's interpretation of the CAA, upheld by the
courts, is that all periods of excess emissions must be considered
violations.
While the NSPS and NESHAP may provide good models of emission
control technology and emission limits, they do not necessarily address
all of the issues relevant to SIP provisions and they do not dictate
state choices with respect to control measures or emission limitations.
To the extent that a particular NSPS or NESHAP imposing a specific
control measure or emission limit is relevant to a given source
category, states may elect to consider imposing comparable controls to
meet SIP requirements, as appropriate. In addition, to the extent that
imposition of a specific control measure or emission limit in an EPA
regulation helps to establish that a given control measure is
technologically or economically feasible for a given source category,
states may need to take such controls into account when evaluating
emission limits for SIP purposes. EPA emphasizes, however, that any
such consideration would need to be based on the specific facts and
circumstances of a given source category, as the considerations
relevant to the development of the NSPS or NESHAP may or may not be
useful for SIP purposes.
Further, while some emission sources may have difficulty complying
with emission standards during startup, shutdown and upset periods,
there are other sources of similar type that are capable of complying
continuously during such events, especially events that are planned for
in advance, such as startups and shutdowns. Thus, an appropriately
protective SIP rule encourages compliance by all sources at all times
through generally applicable emission limits that apply during full
load operation as well as during startup and shutdown events. Where
such generally applicable limits are not feasible for an emission
source during startup or shutdown events, the SIP may contain
appropriately established alternative emission limitations that apply
during those events. In instances in which an exceedance of an emission
limit is truly unavoidable because of a malfunction, exercise of
enforcement discretion by potential enforcers, or exercise of
discretion with respect to penalties by courts in the event of citizen
enforcement, consistent with the provisions of CAA section 113, allows
for proper consideration of the relevant circumstances during the
event.
Comment 7: The commenter expressed concerns about the accuracy of
emission rates that are calculated for startup and shutdown periods.
The commenter stated that:
From a technical viewpoint, emission limits with measurement
units of mass per heat input (e.g., pounds per million British
thermal units) pose significant concern with respect to startup and
shutdown periods. Some emission rates are calculated using monitored
inputs of both pollutant concentration and diluent (e.g., carbon
dioxide (CO2)) concentration. During startup of a coal-
fired EGU, there is a period of time when the combustion airflow is
much higher than during normal operation which inversely yields much
lower CO2 [concentration] than normal. When calculating
the emission rate, [concentration of the diluent] CO2 is
used in the denominator of these calculations. The resulting low
CO2 value can yield calculated emission rates that are
skewed high and are not representative of actual emission
concentrations to the atmosphere. EPA should take into consideration
that skewed emission indications during these periods will not have
an adverse impact on NAAQS attainment or maintenance, interfere with
PSD increments, or otherwise cause adverse impacts.
In essence, the commenter explains that the methodology for calculating
emissions may sometimes be based upon assumptions that reflect certain
modes of source operation, which would make such calculations less
accurate with respect to emissions during other modes of operation.
Response 7: EPA does not dispute that emission rates calculated for
a coal-fired EGU during startup and shutdown may be less accurate than
during full load operation, assuming that the formula used for the
calculations only reflects full load operation. In some instances, a
calculated emission rate may indicate exceedance of an applicable SIP
emission limit only because existing parameters, such as combustion
airflow, are not consistent with the assumptions inherent to the
calculation method.
To the extent that the commenter advocates that calculated emission
rates should be adjusted so that they more accurately reflect the
emissions that may occur during startup and shutdown, EPA believes such
an approach would be appropriate and would serve to assure that
emissions estimates are more accurate for the purposes of compliance
determination and emissions inventories. EPA notes that some existing
Federal rules provide options for dealing with the concern expressed by
the commenter. For example, for computing nitrogen oxide emission rates
and using CO2 as a diluent, the continuous emission
monitoring procedures of 40 CFR Part 75 allow boiler operators to
substitute a minimum concentration of 5.0 percent CO2
whenever the measured concentration is less than 5.0 percent. See 40
CFR Part 75, Appendix F, paragraph 3.3.4.1. This prevents the
calculation of disproportionately high emission rates due to very a low
CO2 concentration, which, as indicated by the commenter, is
a factor in the denominator of the calculation.
As noted in response to Comment 2 above, an appropriately
protective SIP provision is designed to impose appropriate emission
limits or controls and to require compliance at all times. However, if
a source cannot demonstrate compliance based upon the applicable method
in use, enforcement discretion may be used to determine whether to
bring an enforcement action and, in the event that there is
enforcement, the extent of any actual violation will be based upon all
relevant factual information that is credible evidence. By eliminating
the impermissible exemptions in the prior version of Rule 1.07, the
District has taken steps to properly account for all emissions.
Comment 8: The commenter expressed concerns about the accuracy of
PM CEMS for determining compliance with PM emission limits during
startup and shutdown events. The commenter argued that:
Sources that use PM continuous emission monitoring systems (PM
CEMS) as a continuous indication of compliance are required to
provide a periodic correlation of
[[Page 33106]]
the PM CEMs output to values derived through EPA Reference Method
testing. The correlation testing occurs at three separate and
distinct levels of operation and PM emissions. As PM reference
method testing cannot occur during periods of startup and shutdown
due to isokinetic requirements, there is no correlation provided
during these periods. As a result, the output of the PM CEMS during
periods of startup and shutdown will not be adequately tied to an
EPA reference test method and cannot be considered accurate or
representative.
Response 8: EPA disagrees that the output of the PM CEMS during
periods of startup and shutdown cannot be considered representative of
actual emissions, regardless of whether Reference Method stack testing
has been performed during startup and shutdown periods. The accuracy of
PM CEMS data would be questionable if those data were recorded when the
response of the PM CEMS falls outside the correlation range obtained
during Reference Method testing. During periods of startup and
shutdown, at times some PM CEMS responses may fall outside the
correlation range, but any data measurements recorded within that range
would be considered useful in assessing PM control device performance.
Furthermore, the subject rule of this action does not require that
PM CEMS data must be used to determine compliance status during startup
and shutdown periods; it merely requires that that the applicable
emission limit applies at all times, including SSM periods. PM CEMS
data is not the only type of information that a court may find credible
when evaluating whether or not a source would have been in violation of
an emission standard. For example, opacity data from continuous opacity
monitors (which may be required by another provision of the statute or
the SIP) and recordkeeping data on emission control equipment use may
also provide relevant information. The validity of all data is a
consideration that must be taken into account, along with all other
available credible evidence, when evaluating whether a source is in
compliance with SIP emission limits.
Comment 9: One commenter, a national environmental group, submitted
comments in support of EPA's proposed approval of the District's
revisions to Rule 1.07. The commenter provided its own analysis of the
merits of the revisions to Rule 1.07 and its own explanation of why
these revisions are consistent with CAA requirements and EPA's
interpretation of the CAA with respect to proper treatment of excess
emissions during SSM events. In particular, the commenter supported the
clarification that excess emissions are violations of emission
standards, the elimination of the prior discretionary exemptions for
excess emissions, and the improved notification and reporting
requirements.
In addition, the commenter emphasized that these revisions to Rule
1.07 will help to reduce excess emissions during SSM events from
sources that ``jeopardize[] public health and quality of life in nearby
communities.'' As an example, the commenter stated that an
environmental justice community in Kentucky has been impacted by such
emissions from specific sources. The commenter supported the District's
revisions to Rule 1.07 and EPA's approval of those revisions as a means
``to help mitigate the impacts of large pollution events on local
communities in Jefferson County, directly improving people's lives.''
EPA notes that 74 individual citizens from Kentucky also filed
supportive comments, echoing the key points raised by the environmental
group.
Response 9: EPA agrees with the commenters who supported the
Agency's approval of the District's revisions to Rule 1.07 on the
grounds that this will help to assure that sources take appropriate
action to reduce their emissions in order to meet CAA requirements and
thereby help to protect public health and welfare. Although the
commenters did not provide detailed information concerning the specific
sources and specific events that they described, EPA agrees that
exemptions for excess emissions during SSM events in SIP provisions
have the potential to expose surrounding communities to higher levels
of pollutants and to remove incentives for sources to control and
minimize such emissions during SSM events. As a result of such
exemptions, communities near such sources may have no adequate legal
recourse to address these problems. For the protection of public
health, the CAA imposes obligations upon both states and EPA. States
are required to develop SIPs that meet CAA requirements; EPA is
required to evaluate the SIPs to assure that they meet CAA
requirements. A key CAA requirement for SIP provisions is that they
must impose emission limitations upon sources that apply continuously,
thereby precluding exemptions for excess emissions from sources during
SSM events and allowing for effective enforcement by air agencies, EPA,
and the public to assure that sources comply with CAA requirements.
IV. Final Action
EPA is approving part of a revision to the Kentucky SIP submitted
by the Commonwealth of Kentucky, through KDAQ, on March 22, 2011. This
approval includes the changes to Rule 1.07 in the Jefferson County
portion of the Kentucky SIP noted in section II above. After review and
consideration of the relevant information and data, including the
comments received, EPA has determined that this portion of Kentucky's
March 22, 2011, SIP revision is consistent with the CAA and EPA's SSM
policy.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
[[Page 33107]]
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the
Commonwealth, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 11, 2014. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 29, 2014.
Heather McTeer Toney,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart S--Kentucky
0
2. Section 52.920(c) Table 2 is amended under ``Reg 1--General
Provisions'' by revising the entry for ``1.07'' to read as follows:
Sec. 52.920--Identification of plan.
* * * * *
(c)* * *
Table 2--EPA-Approved Jefferson County Regulations for Kentucky
--------------------------------------------------------------------------------------------------------------------------------------------------------
EPA Approval District
Reg Title/Subject date Federal Register notice effective date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reg 1--General Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.07................................. Excess Emissions During 6/10/2014 [Insert citation of 7/21/2005 ........................
Startups, Shutdowns, and publication].
Upset Conditions.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2014-13429 Filed 6-9-14; 8:45 am]
BILLING CODE 6560-50-P