[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Proposed Rules]
[Pages 37405-37411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13380]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2017-0416; FRL-10011-19-Region 7]
Air Plan Approval; Iowa; Air Quality Implementation Plan-
Muscatine Sulfur Dioxide Nonattainment Area and Start-Up, Shutdown,
Malfunction SIP Call Withdrawal
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: The Environmental Protection Agency's (EPA) Region 7 Office is
publishing a second supplemental notice of proposed rulemaking (SNPRM)
to propose approval of Iowa's State Implementation Plan (SIP) for the
2010 1-hour Sulfur Dioxide (SO2) National Ambient Air
Quality Standard (NAAQS) for the Muscatine nonattainment area,
including the attainment plan control strategy. In this action, Region
7 is including additional technical information in the docket. Region 7
is also considering adoption of an alternative policy regarding
startup, shutdown, and malfunction (SSM) exemption provisions in the
Iowa SIP that departs from the policy detailed in EPA's 2015 SSM SIP
Action, as well as proposing to withdraw the SIP call issued to Iowa as
part of the 2015 SSM SIP Action and to approve the attainment plan
control strategy.
DATES: Comments must be received on or before July 22, 2020.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-R07-
OAR-2017-0416 to https://www.regulations.gov. Follow the online
instructions for submitting comments.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received will be posted without
change to https://www.regulations.gov/, including any personal
information provided. For detailed instructions on sending comments and
additional information on the rulemaking process, see the ``Written
Comments'' section of this document.
FOR FURTHER INFORMATION CONTACT: Tracey Casburn, Environmental
Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201
Renner Boulevard, Lenexa, Kansas 66219; telephone number (913) 551-
7016; email address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to EPA.
Table of Contents
I. Written Comments
II. Executive Summary
III. Background
A. The EPA's SIP Policy for Treatment of Excess Emissions During
Periods of Startup, Shutdown, or Malfunction (SSM)
B. The SSM SIP Call for Iowa
C. The Muscatine Attainment Plan
IV. What is Being Addressed in This Document?
V. Region 7's Evaluation of the Iowa SIP
VI. Additional Modeling Information
VII. What Action is EPA Region 7 Taking?
VIII. Statutory and Executive Order Reviews
I. Written Comments
Submit your comments regarding the supplemental modeling
information discussed in this document or the EPA's proposal to remove
Iowa from the SSM SIP Call, identified by Docket ID No. EPA-R07-OAR-
2017-0416 at https://www.regulations.gov. Modeling files are provided
in the docket to this rulemaking but can also be requested from the EPA
by contacting the person identified in the FOR FURTHER INFORMATION
CONTACT section of this document. Once submitted, comments cannot be
edited or removed from Regulations.gov. The EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
II. Executive Summary
On August 24, 2017, the EPA's Region 7 published a notice of
proposed rulemaking (NPRM) to propose approval of the Iowa SIP revision
for attaining the 2010 1-hour SO2 primary NAAQS for the
Muscatine nonattainment area.\1\ As a result of comments received on
the NPRM, Region 7 published an SNPRM on January 9, 2018 to clarify the
August 24, 2017 NPRM and to provide additional technical information in
the docket.\2\ As a result of comments received on the NPRM and SNPRM,
Region 7 is issuing a second SNPRM to provide additional detail
regarding technical support for approving the attainment demonstration
contained in Iowa's submitted SIP revision. In addition, Region 7 is
considering in this document adoption of an alternative policy
regarding SSM exemption provisions in the Iowa SIP that departs from
the policy detailed in EPA's 2015 SSM SIP Action.\3\ Simultaneously,
Region 7 is also proposing to withdraw the SIP call issued to Iowa as
part of the 2015 SSM SIP Action and proposing to
[[Page 37406]]
approve the attainment plan control strategy.
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\1\ 82 FR 40086.
\2\ 83 FR 997.
\3\ 80 FR 33840.
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III. Background
Clean Air Act (CAA or Act) section 110 provides a framework for how
states must adopt and periodically revise their SIPs with a goal of
attaining and maintaining the NAAQS.\4\ State regulatory or statutory
requirements are submitted by the state to the EPA for approval into
the SIP. The CAA establishes the framework for EPA action on submitted
SIP revisions, and the EPA must approve submitted SIP revisions that it
determines meet the applicable requirements of the Act. Once approved
by the EPA, the SIP provisions become federally enforceable.
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\4\ See 40 CFR part 50.
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There are times when a state will update or revise its SIP on its
own initiative due to revisions to state law or the need to update its
regulations. Additionally, certain events trigger requirements that a
state revise or update its SIP. Examples of mandatory SIP revisions
triggered by specific events include ``infrastructure'' SIP (iSIP)
revisions, which are required 3 years after the promulgation of a new
or revised NAAQS, and ``attainment plan'' SIP revisions, which are
required after an area is designated or redesignated nonattainment for
a NAAQS. A state may also be required to revise its SIP after the EPA
revises its regulations to clarify certain requirements of the CAA.
Another event that can result in a required SIP revision is if the
EPA determines at any time that a state's SIP is substantially
inadequate to meet certain requirements of the Act, including attaining
or maintaining the relevant NAAQS or mitigating interstate pollutant
transport. In such cases, the EPA will issue a ``SIP call'' pursuant to
CAA section 110(k)(5) requiring the state to revise the SIP to address
the inadequacy.
A. The EPA's SIP Policy for Treatment of Excess Emissions During
Periods of Startup, Shutdown, or Malfunction (SSM)
On June 30, 2011, Sierra Club (Petitioner) filed a petition for
rulemaking (petition) asking the EPA to consider how air agency rules
in the EPA-approved SIPs treated excess emissions during periods of
startup, shutdown, or malfunction of industrial process or emission
control equipment. On July 12, 2015, the EPA responded to the petition,
restated and updated its national policy regarding SSM provisions in
SIPs, and issued a SIP call pursuant to CAA section 110(k)(5) to
certain states to amend those provisions. This action is referred to as
the 2015 SSM SIP Action.
In the 2015 SSM SIP Action, among other things, the EPA defined the
following terms:
Automatic exemption: A generally applicable provision in a SIP that
would provide that if certain conditions existed during a period of
excess emissions, then those exceedances would not be considered
violations of the applicable emission limitations.\5\
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\5\ See 80 FR 33839, page 33842.
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Emission limitation: In the context of a SIP, a legally binding
restriction on emissions from a source or source category, such as a
numerical emission limitation, a numerical emission limitation with
higher or lower levels applicable during specific modes of source
operation, a specific technological control measure requirement, a work
practice standard, or a combination of these things as components of a
comprehensive and continuous emission limitation in a SIP provision. In
this respect, the term emission limitation is defined as in section
302(k) of the CAA. By definition, an emission limitation can take
various forms or a combination of forms, but in order to be permissible
in a SIP it must be applicable to the source continuously, i.e., cannot
include periods during which emissions from the source are legally or
functionally exempt from regulation. Regardless of its form, a fully
approvable SIP emission limitation must also meet all substantive
requirements of the CAA applicable to such a SIP provision, e.g., the
statutory requirement of section 172(c)(1) for imposition of reasonably
available control measures and reasonably available control technology
(RACM and RACT) on sources located in designated nonattainment
areas.\6\
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\6\ See 80 FR 33839, page 33842.
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The EPA used the D.C. Circuit's decision in Sierra Club v. Johnson,
551 F.3d 1019 (D.C. Cir. 2008) (Sierra Club), to further support its
position in the 2015 SSM SIP Action that SIPs may not contain SSM
exemption provisions. In Sierra Club, the D.C. Circuit reviewed an EPA
rule promulgated pursuant to CAA section 112 that contained an
automatic SSM exemption and found that ``the SSM exemption violates the
CAA's requirement that some section 112 standard apply continuously.''
\7\ In the 2015 SSM SIP Action, the EPA applied the Sierra Club court's
interpretation of CAA section 302(k) definition of ``emission
limitation'' in the CAA section 112 context to the requirements of CAA
section 110. CAA section 110(a)(2)(A) provides that SIPs shall include
``enforceable emission limitations and other control measures, means,
or techniques . . . as may be necessary or appropriate to meet the
applicable requirements of this chapter.'' The EPA's application of the
Sierra Club decision to CAA section 110 SIP requirements rested on the
Agency's premise that the D.C. Circuit's interpretation of the
definition of ``emission limitation'' in CAA section 302(k) applied
generally to the Act. The EPA thus determined that Sierra Club was
consistent with the EPA's national policy, expressed through previously
issued guidance documents and regulatory actions prohibiting exemption
provisions for otherwise applicable emission limits in SIPs (such as
automatic exemptions granted for startup, shutdown, and malfunction
events). Based on this premise, the EPA interpreted the lack of
continuous control as creating a substantial risk that exemptions could
permit excess emissions that could ultimately result in a NAAQS
violation.
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\7\ 551 F.3d at 1027-1028.
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B. The SSM SIP Call for Iowa
As part of the Agency's response to the 2011 petition from Sierra
Club, the EPA evaluated dozens of existing SIP provisions in 36 state
SIPs--including the Iowa SIP--related to automatic excess emission
exemptions for consistency with EPA's policy. As a result, the EPA
issued findings in its 2015 SSM SIP Action that certain SIP provisions
for 36 states (including Iowa) were substantially inadequate to meet
CAA requirements. In the 2015 SSM SIP Action, the EPA granted the
Sierra Club's petition with respect to Iowa Administrative Code (IAC)
subrule 567-24.1(1), finding that the provision was substantially
inadequate and issuing a SIP call for that provision, and the EPA
denied the petition with respect to IAC 567- 24.1(4).8 9
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\8\ IAC 567-24.1(1) states that excess emissions during a period
of startup, shutdown, or cleaning of control equipment is not a
violation of the emission standard if the startup, shutdown or
cleaning is accomplished expeditiously and in a way that is
consistent with good practice for minimizing emissions.
\9\ IAC 567-24.1(4) states that incidents of excess emissions
(other than an incident during start-up, shutdown or cleaning of
control equipment) are violations. If the source believes that the
excess emissions are due to a malfunction the source must meet the
burden of proof that the incident was not preventable by reasonable
maintenance and control measures. Meeting the burden of proof does
not guarantee that the excess emissions will not be enforced; the
rule states that enforcement will be considered after review of the
source's report.
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[[Page 37407]]
In the 2015 SSM SIP Action, the EPA found IAC 567-24.1(1) to be
substantially inadequate to meet the requirements of the Act on the
basis that this provision automatically allows for exemptions from the
otherwise applicable SIP emission limitations as required by CAA
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).\10\ Specifically, IAC
567-24.1(1) explicitly states that excess emissions during periods of
startup, shutdown, and cleaning of control equipment are not violations
of the emission standard. Iowa has not submitted a SIP revision
addressing IAC 567.24.1(1).
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\10\ See 80 FR 33969.
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C. The Muscatine Attainment Plan
On May 26, 2016, the State of Iowa submitted a SIP revision for the
purpose of attaining the 2010 1-hour sulfur dioxide (SO2)
primary National Ambient Air Quality Standard (NAAQS) for the Muscatine
nonattainment area (herein called an ``attainment plan''). As detailed
in EPA's 2014 SO2 nonattainment area guidance, such
attainment plans are to contain six CAA-required elements: an emissions
inventory of current emissions for all sources of SO2 within
the nonattainment area; a New Source Review (NSR) permit program; an
attainment demonstration using an EPA-approved air dispersion model;
contingency measures; Reasonable Further Progress; and implementation
of a control strategy.\11\ The state noted that as part of its control
strategy, 58 construction permits in the attainment plan relied on the
SIP-called IAC 567-24.1(1) (``Condition 6'' of each permit). As such,
the State's nonattainment area plan SIP submission requested that the
EPA not act on Condition 6 of the included permits.
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\11\ Guidance for 1-Hour SO2 Nonattainment Area SIP
Submissions; April 23, 2014.
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On August 24, 2017, the EPA published a notice of proposed
rulemaking to approve the attainment plan.\12\ In that action, the EPA
agreed with the State that it would not be appropriate to approve
Condition 6 of each permit into the SIP and proposed to approve the
permitted limits into the SIP without the condition. During the 30-day
public comment period, the EPA received a comment that (1) because
Condition 6 provides for an exemption for excess emissions during
periods of SSM, and because Condition 6 refers to and implements IAC
567-24.1(1), the construction permits do not ensure continuous
compliance with the ``emission limitations'' therein; and (2) even if
the EPA does not approve Condition 6 into the SIP, the continued
existence of IAC 567-24.1(1) in Iowa's SIP means that Iowa cannot
ensure continuous compliance with those ``emission limitations.'' \13\
Therefore, according to the comment, the EPA should not approve the
attainment plan considering the policy and SIP call issued by the EPA
in 2015 and the requirements of section 110(a)(2)(A) and 172(c)(6) of
the CAA.\14\
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\12\ See 82 FR 40086.
\13\ As that term is defined in section 302(k) of the CAA.
\14\ The requirements of CAA section 172(c)(6) parallel those in
section 110(a)(2)(A), so Region 7 does not address them separately
here.
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On January 9, 2018, the EPA published a supplemental proposal
document that: (1) Provided additional information in the docket and
clarified that all information, including files that were too large to
be provided in the docket, was available upon request; (2) provided an
2018 projected emissions inventory that had been excluded from the
Notice of Proposed Rulemaking; and, (3) re-opened the public comment
period only on those specific aspects.\15\
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\15\ See 83 FR 997.
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IV. What is being addressed in this proposal?
In this second supplemental notice of proposed rulemaking related
to Iowa's 2016 submission, EPA Region 7 is considering adopting an
alternative policy to the national policy as stated in the 2015 SSM SIP
Action specifically regarding exemptions for excess emissions in the
State of Iowa, and is simultaneously proposing to withdraw the SIP call
for Iowa if the alternative SSM policy for the State is adopted (see
Section V).\16\ Additionally, after considering comments received to
date on the Agency's proposed approval of all elements of the
attainment plan for the Muscatine 2010 SO2 nonattainment
area, EPA Region 7 is proposing to approve additional modeling that
demonstrates attainment throughout the nonattainment area and at
receptors on adjacent properties (see Section VI).
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\16\ If the proposed policy is finalized and the SIP call
withdrawn and Iowa requests that EPA act on Condition 6 of the 58
construction permits submitted to the EPA as part of the control
strategy for the attainment plan, EPA could propose to approve those
provisions based on the rationale set forth in this document.
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Region 7 is considering adopting an alternative policy for Iowa
regarding the continuous application of emission limits in section 110
SIPs. Specifically, although the Iowa SIP contains an exemption for
SSM, the SIP is comprised of numerous overlapping planning
requirements. Those overlapping planning requirements consist of an
array of Federal and state requirements in the SIP that arise from the
relationship between states and the Federal Government that underlies
implementation of the CAA. Congress's primary goal in creating the SIP
adoption and approval process was to ensure the NAAQS are attained and
maintained.\17\ Region 7 is evaluating the overlapping requirements in
the Iowa SIP to assess whether exemptions during SSM periods are
allowable. On the basis of that evaluation, Region 7 is proposing to
find that Iowa's SSM provision is allowable, because of the proposed
finding that the SIP as a whole is protective of the NAAQS,
accomplishing the task Congress set out for states and the EPA. If such
an alternative policy is finalized, EPA would withdraw the SSM SIP call
for Iowa because, under such circumstances, the SIP-called provision
would not be substantially inadequate.
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\17\ See, e.g., H.R. Rep. 91-1783 at 193-95 (1970).
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As discussed above, the 2015 SSM SIP Action reiterated the EPA's
policy that SIPs containing SSM exemptions were not allowable because
they would create risk that excess emissions during SSM events could
cause a state to fail to attain or maintain the NAAQS for one or more
criteria pollutants. Region 7 is proposing to find that the inherent
flexibilities in the SIP development process and the general
requirements in CAA section 110 mean that a state like Iowa could
ensure attainment and maintenance despite one or more SSM exemptions in
the SIP.
Although the Sierra Club decision did not allow sources to be
exempt from complying with CAA section 112 emission limitations during
periods of SSM, that finding is not binding on Region 7's consideration
of SIPs under CAA section 110. In the Sierra Club decision, the court
explained, ``[i]n requiring that sources regulated under section 112
meet the strictest standards, Congress gave no indication that it
intended the application of MACT standards to vary based on different
time periods.'' \18\ That is, the court found that when the EPA
promulgates standards pursuant to CAA section 112, CAA section 112-
compliant standards must apply continuously, but the court did not make
any statement explicitly applying its finding beyond CAA section 112.
The decision itself did not address whether the rationale articulated
with respect to SSM exemptions in CAA section 112 rules applies to SIPs
approved under CAA section 110.
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\18\ Sierra Club, 551 F. 3d at 1028.
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[[Page 37408]]
The EPA took the position in the 2015 SSM SIP Action that the legal
reasoning in Sierra Club applied equally to CAA section 112 rules and
section 110 approved SIPs, but further consideration of the Iowa SIP
has shown that an alternative reading of the relevant statutory
sections is possible and appropriate.\19\ More specifically, in the
2015 SSM SIP Action the EPA interpreted CAA section 302(k)'s definition
of ``continuous'' applied broadly to both sections 112 and 110.\20\
However, Region 7 believes that, given Iowa's particular factual
situation, an alternative interpretation, that the court's reasoning in
Sierra Club does not extend to CAA section 110, is warranted.
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\19\ See 80 FR at 33839.
\20\ See 80 FR at 33874.
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Fundamentally, CAA sections 112 and 110 have different goals and
establish different approaches for implementation by the state and the
EPA. That is to say, the court in Sierra Club recognized that Congress
intended ``that sources regulated under section 112 meet the strictest
standards,'' a requirement without a similar analog in CAA section
110.\21\ CAA section 112 sets forth specific standards for specific
source categories once they are listed for regulation pursuant to CAA
section 112(c). Once listed, the statute directs the EPA to use a
specific and exacting process to establish nationally applicable,
category-wide, technology-based emissions standards under section
112(d), requiring the EPA to establish emission standards (known as
``maximum achievable control technology'' or ``MACT'' standards) for
major sources that ``require the maximum degree of reduction in
emissions of the hazardous air pollutants subject to this section''
that EPA determines is achievable considering certain statutory
factors.\22\
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\21\ Sierra Club at 1028.
\22\ EPA can also set work practice standards under CAA section
112(h).
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In contrast, the CAA sets out a different expectation for section
110 SIPs, reflecting that SIP development and implementation rely on a
federal-state partnership and are designed to be flexible for each
state's circumstances. The CAA sets the minimum requirements to attain,
maintain, and enforce ambient air quality standards, while allowing
each state to customize its own approach for the sources and air
quality challenges specific to each state. It is important to note that
the EPA sets the NAAQS for each criteria pollutant to provide the
requisite degree of protection for public health and welfare, but does
not direct the states on how to achieve the NAAQS.\23\ The NAAQS, then,
are fundamentally different in nature than the source-specific
standards the EPA issues under section 112. As such, the D.C. Circuit's
concern that 112 standards must apply ``continuously'' to regulate
emissions from a particular source are not necessarily applicable in
the context of section 110, where a state's plan may contain a broad
range of measures, including limits on the emissions of multiple
pollutants from multiple sources of various source categories--all
targeted towards Congress's broad goal of attainment and maintenance of
an air quality standard measured against emissions contributions from a
variety of sources over a specific geographic area.
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\23\ The exemption to this general rule is when EPA promulgates
a Federal Implementation Plan (FIP) under CAA section 110(c)(1)
because a state or tribe has failed to make a required SIP
submission, or such submission does not comply with the NAAQS.
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It is important to also note that the list of potential CAA section
110(a)(2)(A) measures that a state must implement are required only
``as may be necessary or appropriate to meet the applicable
requirements of this chapter.'' This language suggests that Congress
intended to give states the flexibility to craft a plan that makes the
most sense for that state, so long as the set of emissions limitations,
control measures, means and techniques, when taken as a whole, meet the
requirements of attaining and maintaining the NAAQS under subpart A. As
such, Region 7 is considering whether it may be appropriate to approve
certain Iowa SIP submissions notwithstanding the existence of an
exemption elsewhere in the Iowa SIP, so long as other provisions in the
SIP remain in effect that would ensure protection of the NAAQS.
The U.S. Supreme Court has recognized that the CAA gives a state
``wide discretion'' to formulate its plan pursuant to CAA section 110
and went so far as to say that ``the State has virtually absolute power
in allocating emission limitations so long as the national standards
are met.'' See, e.g., Union Elec. Co. v. EPA, 427 U.S. 246, 250 & 267
(1976). See also id. at 269 (``Congress plainly left with the States,
so long as the national standards were met, the power to determine
which sources would be burdened by regulation and to what extent.'').
The Court has also explained, ``so long as the ultimate effect of a
State's choice of emission limitations is compliance with the national
standards for ambient air, the State is at liberty to adopt whatever
mix of emission limitations it deems best suited to its particular
situation.'' See Train v. Natural Res. Def. Council, Inc., 421 U.S. 60,
79 (1975). States are the best suited to determine how best to
implement the NAAQS within their jurisdiction and are given primary
responsibility under CAA section 110 to do so.
Because the purposes of CAA sections 110 and 112 are different, it
is reasonable to interpret the same term (emission limitation) to have
different meanings in those sections; a singular interpretation may not
necessarily apply statute-wide. The U.S. Supreme Court has recognized
that principles of statutory construction are not so rigid as to
necessarily require that the same terminology has the exact same
meaning in different parts of the same statute. See Envtl. Defense v.
Duke Energy Corp., 549 U.S. 561, 574 (2007). The Court explained that
there is ``no effectively irrebuttable presumption that the same
defined term in different provisions of the same statute must be
interpreted identically.'' Id. at 575-6. ``Context counts,'' stated the
Court; terms can have ``different shades of meaning'' reflecting
``different implementation strategies'' even in the same statute. Id.
at 574, 76 (citations omitted). See also Utility Air Regulatory Group
v. EPA, 573 U.S. 302, 320 (2014) (``a statutory term--even one defined
in the statute--may take on distinct characters from association with
distinct statutory objects calling for different implementation
strategies.'' (citations omitted)).
The text of CAA section 110(a)(2)(A) reflects the increased
flexibility built into section 110 as compared to section 112.\24\ The
requirement that the ``emissions standards'' the EPA issues under
section 112, see, e.g., section 112(c)(2), apply continuously may, as
the D.C. Circuit held, prevent the EPA from providing SSM exemptions in
those standards. However, at the same time, it is reasonable to
interpret the concept of continuous ``emission limitations'' in a SIP
to be focused not on implementation of each individual limit, but
rather on whether the various components of the approved SIP operate
together in a continuous manner to ensure attainment and maintenance of
the NAAQS. Therefore, Region 7 believes it is reasonable to conclude
that
[[Page 37409]]
the Sierra Club decision's disapproval of SSM provisions should not be
extended to CAA section 110.
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\24\ Under CAA section 110(a)(2)(A), each SIP shall include
``enforceable emission limitations and control measures, means, or
techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and
timetables for compliance, as may be necessary or appropriate to
meet the applicable requirements of this chapter.'' 42 U.S.C.
7410(a)(2)(A).
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If Region 7 adopts the policy outlined in this section based on the
analysis contained in this document, we are proposing to change the
finding of the SIP call issued to Iowa as part of the 2015 SSM SIP
Action that a SIP provision contained in the Iowa SIP is substantially
inadequate to meet CAA requirements. Specifically, if Region 7 adopts
this alternative policy, we propose to find that the subject SIP
provision is consistent with CAA requirements. If so adopted, the
alternative SSM policy is a policy statement and would constitute
guidance within Region 7 for Iowa. Such a guidance would not bind
states, the EPA or other parties; it would only reflect Region 7's
interpretation of the CAA requirements as applicable to the Iowa SIP.
The evaluation of any SIP provision, and that provision's interaction
with the SIP, must be done through a notice-and-comment process.
V. Region 7's Evaluation of the Iowa SIP
In proposing to conclude that the Iowa SIP in its entirety is
protective of the NAAQS, Region 7 has identified numerous provisions of
the SIP that, when taken as a whole, establish such a basis. First, the
Iowa SIP details a series of overlapping requirements that provide for
robust testing, reporting, and accountability for sources during
periods of excess emissions. Such overlapping requirements enable Iowa
Department of Natural Resources (IDNR) to implement the NAAQS, allowing
IDNR to maintain oversight, work with sources to maintain compliant
operation, and, if necessary, enforce against sources.
Although IAC 567-24.1(1) was SIP called in the EPA's 2015 SSM SIP
Action, the provision contains limitations on whether SSM events are
considered emission standard violations and requires that source owners
or operators limit the duration and severity of SSM events. IAC 567-
24.1(1) states:
24.1(1) Excess emission during a period of startup, shutdown, or
cleaning of control equipment is not a violation of the emission
standard if the startup, shutdown or cleaning is accomplished
expeditiously and in a manner consistent with good practice for
minimizing emissions. Cleaning of control equipment which does not
require the shutdown of the process equipment shall be limited to
one six-minute period per one-hour period.
While the subrule does allow for an exemption for excess emissions,
it also provides for two key backstops that protect air quality and
ensure attainment and maintenance of the NAAQS: (1) Startup, shutdown
and cleaning is to be accomplished expeditiously; and, (2) startup,
shutdown, and cleaning is to be accomplished in a way that is
consistent with good practice for minimizing emissions. IAC 567-24.1(4)
clarifies that an ``expeditious manner'' is the time necessary to
determine the cause of the excess emissions and to correct it within a
reasonable period of time. IAC 567-24.1(4) also states that a
``reasonable period of time'' is eight hours plus the period of time
required to shut down the process without damaging the process or
control equipment.
As detailed in the EPA's technical support document for Iowa's 2010
SO2 iSIP approval, the director of the IDNR has the duty to
ensure that the NAAQS is attained and maintained in accordance with
Federal laws and regulations, and is granted broad oversight,
authority, and discretion with which to do so.\25\ Iowa has the
requisite statutory authority that provides an adequate framework for
attaining and maintaining the NAAQS.\26\
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\25\ 83 FR 12486.
\26\ 83 FR 12486.
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Iowa Code 455B.132 designates IDNR as the Agency to prevent, abate,
or control air pollution. The Environmental Protection Commission (EPC)
governs the environmental services of IDNR and has the duty to develop
emission limits and compliance schedules in order to abate, control,
and prevent air pollution.\27\ The EPC adopts, amends, or repeals rules
that are necessary to obtain approval of the State SIP under CAA
section 110.\28\ The EPC is also charged with adopting, amending, or
repealing ambient air quality standards necessary to protect public
health and welfare.\29\ Furthermore, 455B.134(9) states that the
director shall issue orders consistent with rules to cause the
abatement or control of air pollution, or to secure compliance with
permit conditions.
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\27\ Iowa Code 455B.133.1 (``Duties''). The EPC is a panel of
nine citizens who provide policy oversight over Iowa's environmental
protection efforts. The EPC's members are appointed by the Governor
and confirmed by vote of the Senate for four-year terms.
\28\ Iowa Code 455B.133.2.
\29\ Iowa Code 455B.133.4.
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The IDNR director's duty to ensure the NAAQS is attained and
maintained is reflected in specific provisions throughout Iowa's SIP,
as detailed below. First, in adopting the NAAQS into its State
regulations, IAC 567-28.1 requires that IDNR implement the NAAQS ``in a
time frame and schedule consistent with implementation schedules in
federal laws and regulations.'' For nonattainment areas, CAA section
172(c), among other relevant statutory provisions, requires state plans
to provide for attainment as expeditiously as practicable and for the
implementation of reasonable available control measures (RACM) as
expeditiously as practicable. As mentioned previously, Iowa has a fully
approved 2010 SO2 infrastructure SIP, meaning that EPA has,
through notice and comment rulemaking, found that the SIP provides for
the implementation, maintenance, and enforcement of the NAAQS. Other
than the Muscatine 2010 1-hr SO2 nonattainment area,
previously mentioned, there are no other nonattainment areas, for any
criteria pollutant, in the State.\30\ As can be seen via ambient air
quality monitoring data for SO2, air quality in the
Muscatine area is well below the NAAQS of 75 parts per billion (ppb).
The current three-year (2016-2018) SO2 design value for the
area is 34 ppb.\31\
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\30\ The partial Pottawattamie County 2008 Lead NAAQS
nonattainment area was redesignated to attainment in October 2018.
See 83 FR 50024.
\31\ At the time of this document, 2019 ambient air quality data
had not been certified in the Air Quality System. Annual data
certification is not required until May 1.
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Furthermore, the SIP provides for emergency powers comparable to
that of the EPA Administrator under CAA section 303, and the State has
a fully approved emergency episodes plan that meets the applicable
requirements of 40 CFR part 51, subpart H, at IAC 567-26.1-4. IAC 567-
28.1, in concert with IAC 567-26.1-4 and the state's statutory
provisions detailed further below, lay out IDNR's responsibility and
authority for ensuring that air quality is protected, and the NAAQS are
attained and maintained in the state of Iowa, notwithstanding an
exemption for excess emissions in the SIP. The attainment status of
areas in the State as well as monitored air quality demonstrate
successful implementation on the part of the State.
Third, the Iowa SIP provides IDNR with the specific discretion of
whether to issue a construction permit for a source based solely on an
analysis of that source's impact on attainment or maintenance of the
NAAQS. Specifically, IAC 567-22.3(1) states:
A construction permit shall be issued when the director
concludes that (. . .) the expected emissions from the proposed
source or modification in conjunction with all other emissions will
not prevent the attainment or maintenance of the ambient air quality
standards specified in 567--Chapter 28.
[[Page 37410]]
Additionally, IAC 567-22.3(5) provides IDNR with the discretion to
modify ``an existing permit for a major stationary source or an
emission limit contained in an existing permit for a major stationary
source if necessary to attain or maintain an ambient air quality
standard.'' Accordingly, these provisions provide the State air agency
with the authority to limit the issuance of construction permits and
modify existing permits to ensure that the NAAQS is attained and
maintained. This authority, when considered along with the enforcement,
maintenance, and oversight provisions discussed herein, ensures
accountability for sources and, when taken as a whole, protects air
quality and provides for attainment and maintenance of the NAAQS, even
though the Iowa SIP allows exemptions for excess emissions during
periods of startup, shutdown, and cleaning. Of note, the State has been
implementing its SIP-approved construction program, which includes
issuing construction permits with Condition 6, and has not monitored a
NAAQS violation resulting in the need to revise a permit due solely on
emissions from SSM events.
In addition to specific discretion afforded the IDNR director to
ensure attainment and maintenance of the NAAQS, there are a number of
direct requirements on sources in Iowa's approved SIP. IAC 567-24.1(2)
details the initial report that a source owner or operator must submit
when an emission limit is exceeded. Such incidences are to be reported
to the appropriate IDNR regional office within eight hours of the onset
of an incident. Reports are to be submitted via email, in person, or
over the telephone. At a minimum, initial incident reports are to
include the quantity, duration, cause and remedial steps taken for
periods of excess emissions. IAC 567-24.1(3) requires that a written
report is to be submitted as a follow-up to all required initial
reports to the IDNR within seven days of the onset of the event. The
written report is, at a minimum, to include the information required
for initial reports under 24.1(2). In addition, written reports are to
include, if the owner claims that the excess emission was due to
malfunction, documentation to support such a claim.
IAC 567-25.1(6), (7), and (8) detail the testing and sampling
requirements for owners and operators of pollution control equipment.
Specifically, any facility required to install a continuous monitoring
system shall provide regular reports to IDNR, including periods of
excess emissions. Furthermore, IDNR is granted the authority to require
sources to conduct compliance demonstrations, including testing, which
``may be required as necessary to determine actual emissions from a
source where that source is believed to have a significant impact on
the public health or ambient air quality of an area.'' IDNR may also
conduct independent emission testing as deemed necessary. These
provisions ensure that sources must report periods of excess emissions
and could be required to conduct testing during such periods, thus
ensuring that the State is aware of any such events and allowing the
State to protect air quality and ensure attainment and maintenance of
the NAAQS.
Owners or operators of any control equipment are also required to
maintain and repair equipment or control equipment in such a way that
minimizes and remedies any causes of excess emissions. IAC 567-24.2(1)
details the maintenance and repair that owners or operators are
required to undertake, including maintaining operations that minimize
emissions, undertaking scheduled routine maintenance, and remedying any
cause of excess emissions in an expeditious manner (``expeditious
manner,'' as discussed above, is defined in IAC 567-24.1(4)).
Furthermore, IAC 567-24.2(1)(c) states that owners or operators shall:
Minimize the amount and duration of any excess emission to the
maximum extent possible during periods of such emissions. These
measures may include but not be limited to the use of clean fuels,
production cutbacks, or the use of alternate process units or, in
the case of utilities, purchase of electrical power until repairs
are completed.
IAC 567 24.2(2) provides IDNR with the authority to require owners
and operators to develop maintenance plans where, ``in the judgement of
the executive director a continued pattern of excess emissions
indicative of inadequate operation and maintenance is occurring.'' Such
maintenance plans have been required of sources over time as
appropriate and are to include numerous maintenance and inspection
requirements. Most notably, these plans are to include a contingency
plan intended to minimize the frequency, duration, and severity of
excess emission events.
Lastly, there are a number of Iowa-specific State regulations that
help ensure attainment and maintenance of the NAAQS. Iowa Code 455B.139
states that, if the director has evidence that any person is causing
air pollution that creates a public health and safety emergency, the
director may, without notice, issue an emergency order requiring the
immediate discontinuation of emissions. While not SIP-approved, and
therefore not federally enforceable, these codes provide supplemental
support to the assertion that the State has considerable oversight and
discretion to enforce against sources and ensure attainment and
maintenance of the NAAQS.
In light of the fact that Region 7 is considering an alternative
policy relating to exemptions of excess emissions, and based on the
above analysis of Iowa's SIP, Region 7 is simultaneously proposing to
withdraw the SIP call issued as part of the 2015 SSM SIP Action and
find that the subject SIP provision is not inconsistent with CAA
requirements.
EPA's CAA regulations allow EPA Regions to take actions that are
inconsistent with national policy when the Region seeks and obtains
concurrence from the relevant EPA Headquarters office. Pursuant to
EPA's regional consistency regulations at 40 CFR 56.5(b), the Region 7
Regional Administrator sought and obtained concurrence from the EPA's
Office of Air and Radiation to propose an action that outlines an
alternative policy that is inconsistent with the national EPA policy,
most recently articulated in the 2015 SSM SIP Action, on provisions
automatically exempting emissions exceeding otherwise applicable SIP
limitations during periods of unit startup, shutdown, and malfunction
and propose action consistent with that alternative policy. The
concurrence request memorandum is included in the public docket for
this action.
VI. Additional Modeling Information
During the public comment period for the SNPRM, the EPA received
comment that the modeling for the Muscatine nonattainment area did not
include receptors with adjacent property boundaries. The commenter
asserted that these areas could be considered ``ambient air'' and that
they therefore should have been included in the attainment
demonstration modeling. The EPA agrees with the commenter that these
areas, as noted in the Code of Federal Regulations at 40 CFR part 51,
appendix W, Guideline on Air Quality Models (hereafter referred to as
``appendix W''), would be considered ambient air and should have model
receptors included. To ensure a complete record for both the attainment
plan approval action, and adherence to appendix W, the EPA performed
modeling that evaluated the impacts on the properties of each of the
modeled facilities-Grain Processing Corporation (GPC), Muscatine Power
and Water (MPW), Monsanto, and Louisa Generating Station (LGS). The EPA
used
[[Page 37411]]
the same model version (i.e., AERMOD version 14134) and modeling inputs
(i.e., source characteristics and emissions rates, meteorological data,
background value, etc.) that the State used in its attainment plan
modeling demonstration. The only modification the EPA made for its
evaluation was adding receptors at 50-meter spacing within each
facility's boundary. The EPA modeled scenarios specific to each of the
four facilities' property, which included receptors only on the
property of the facility in question and has all emissions sources from
that facility removed from the analysis. For example, a scenario to
evaluate the impacts on GPC's facility property included receptors
placed within GPC's facility fence line and with the emission sources
from LGS, Monsanto, and MPW operating and GPC not operating.
Table 1 provides the results of EPA's modeling analysis, which
showed no violations within each of the four facilities' property when
emissions from the other facilities were considered. The greatest
impacts occurred within Grain Processing Corporation's property with a
modeled highest 4th high of 164 micrograms per cubic meter ([micro]g/
m\3\).
Table 1--The Highest-4th-High Predicted Impacts on Each Facility's
Property
[Including background]
------------------------------------------------------------------------
1-hour
Model SO2 NAAQS
Impacted facility impacts ([micro]g/
([micro]g/ m\3\)
m\3\)
------------------------------------------------------------------------
Grain Processing Corporation.................... 164 196
Muscatine Power and Water....................... 110
Monsanto........................................ 97
Louisa Generating Station....................... 110
------------------------------------------------------------------------
The EPA proposes that the modeling submitted by Iowa with its
nonattainment area plan, in addition to the supplemental modeling
performed by the EPA and described above, demonstrates that the area is
attaining the NAAQS.
VII. What action is EPA Region 7 taking?
In this second supplemental notice of proposed rulemaking, the EPA
is: (1) Considering adoption of an alternative policy regarding
exemptions for excess emissions in the State of Iowa from the national
policy detailed in the EPA's 2015 SSM SIP Action; (2) proposing
simultaneously withdrawal of the SSM SIP call for Iowa if the
alternative SSM policy for the State is adopted; and (3) proposing
approval of Iowa's SIP for the 2010 1-hour SO2 NAAQS for the
Muscatine nonattainment area, including the attainment plan control
strategy.
VIII. 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, the 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
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 the National Technology
Transfer and Advancement Act (NTTA) because this rulemaking does not
involve technical standards; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications and will not impose substantial direct
costs on tribal governments or preempt tribal law as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, SSM policy, Start-up, shutdown and malfunction, Sulfur
oxides.
Dated: June 16, 2020.
James Gulliford,
Regional Administrator, Region 7.
[FR Doc. 2020-13380 Filed 6-19-20; 8:45 am]
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