Approval and Promulgation of Implementation Plans; Oklahoma; Revisions to Excess Emissions Requirements; Finding of Substantial Inadequacy: and Call for Oklahoma State Implementation Plan Revision, 54816-54828 [2013-21777]
Download as PDF
<![CDATA[
54816
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
Section 27–7–114.7. All other fee
increases are outside the scope of this
SIP revision action.
We also propose to approve the
revisions to Parts A and B of Regulation
3 in the May 25, 2011 submittal to
approve the addition of PM2.5 to the
definitions of ‘‘air pollutant’’ and
‘‘criteria pollutant’’ in Part A, and the
revisions of Part B to reflect Colorado’s
regulation of PM2.5 in the State’s
construction permit program, including
PM2.5 thresholds. We also propose to
approve Colorado’s reinstatement of
VOC sources to RACT requirements in
Part B. Finally, we propose to approve
the minor editorial changes made
throughout Regulation 3, Parts A, B, and
D.
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and,
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
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 proposed
action merely approves state law as
meeting federal requirements; this
proposed action does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive 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
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations,
Greenhouse gases, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
Dated: August 28, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013–21614 Filed 9–5–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2010–0652; FRL–9900–73–
Region6]
Approval and Promulgation of
Implementation Plans; Oklahoma;
Revisions to Excess Emissions
Requirements; Finding of Substantial
Inadequacy: and Call for Oklahoma
State Implementation Plan Revision
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing three
actions concerning revisions to the
Oklahoma State Implementation Plan
(SIP) submitted by the State of
Oklahoma on July 16, 2010 (the July 16,
2010 SIP submittal). These actions
address revisions to the Oklahoma
Administrative Code (OAC), Title 252,
Chapter 100, Subchapter 9—Excess
Emission Reporting Requirements
(Subchapter 9). In the first action, we
are proposing approval of certain
provisions of the July 16, 2010 SIP
submittal which are consistent with the
SUMMARY:
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
Clean Air Act (CAA or Act). In the
second action, we are proposing a
limited approval and limited
disapproval of certain other provisions
of the July 16, 2010 SIP submittal which
will have the overall effect of
strengthening the Oklahoma SIP, but a
portion of which are inconsistent with
the requirements of the CAA. In the
third action, we are proposing a finding
of substantial inadequacy and proposing
a SIP call with a proposed submittal
date for certain provisions of the July
16, 2010 SIP submittal associated with
the proposed limited approval and
limited disapproval found to be
inconsistent with CAA requirements, as
set forth in the second action. If
finalized, the SIP call associated with
the proposed finding of substantial
inadequacy will not, by itself, trigger a
sanction clock for Oklahoma. This
rulemaking is being taken in accordance
with section 110 of the Act.
DATES: Comments must be received on
or before October 7, 2013.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2010–0652, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• U.S. EPA Region 6 ‘‘Contact Us’’
Web site: https://epa.gov/region6/
r6coment.htm. Please click on ‘‘6PD’’
(Multimedia) and select ‘‘Air’’ before
submitting comments.
• Email: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by email to the person
listed in the FOR FURTHER INFORMATION
CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number 214–665–7263.
• Mail: Mr. Guy Donaldson, Chief,
Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733.
• Hand or Courier Delivery: Mr. Guy
Donaldson, Chief, Air Planning Section
(6PD–L), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8:00 a.m. and 4:00 p.m.
weekdays except for legal holidays.
Special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2010–
0652. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at
www.regulations.gov, including any
E:\FR\FM\06SEP1.SGM
06SEP1
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
the disclosure of which is restricted by
statute. Do not submit information
through www.regulations.gov or email
that you consider to be CBI or otherwise
protected from disclosure. The
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below to make an
appointment. If possible, please make
the appointment at least two working
days in advance of your visit. There will
be a 15 cent per page fee for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202–
2733.
The State submittal is also available
for public inspection at the State Air
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
Agency listed below during official
business hours by appointment:
Oklahoma Department of
Environmental Quality (ODEQ), Air
Quality Division, 707 North Robinson
Street, Oklahoma City, Oklahoma
73101.
Mr.
Alan Shar, Air Planning Section (6PD–
L), Environmental Protection Agency,
Region 6, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202–2733, telephone
(214) 665–6691, fax (214) 665–7263,
email address Shar.Alan@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to EPA.
FOR FURTHER INFORMATION CONTACT:
Outline
I. Summary and Background
A. What actions are we proposing?
B. What documents did we use in our
evaluation of the July 16, 2010 SIP
submittal?
C. What is the background for this
proposed rulemaking?
II. Evaluation
A. Introduction
B. Why are we proposing approval of
portions of the July 16, 2010 SIP
submittal?
C. Why are we proposing a limited
approval and limited disapproval of
portions of the July 16, 2010 SIP
submittal?
D. Why are we proposing a finding of
substantial inadequacy and a SIP call?
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Summary and Background
A. What actions are we proposing?
We are proposing three related actions
regarding the July 16, 2010 SIP
submittal from the State of Oklahoma.
This SIP submittal contains revisions to
Oklahoma’s excess emission rules,
found in OAC, Title 252, Chapter 100,
Subchapter 9 (Subchapter 9). More
specifically, the July 16, 2010 SIP
submittal: (1) Withdraws revisions to
Subchapter 9 submitted to EPA on
February 14, 2002; and (2) requests
EPA’s approval of revisions to
Subchapter 9 made by the State in 2010
(2010 Subchapter 9 provisions). EPA
approval of the 2010 Subchapter 9
provisions would replace the
Subchapter 9 provisions promulgated by
the State in 1994, and last approved in
1999 by EPA as part of the current
Oklahoma SIP. The 2010 Subchapter 9
provisions were intended by the state to
meet the requirements of the CAA with
respect SIP provisions concerning
excess emissions during startup,
shutdown, and malfunction. Oklahoma
developed the July 16, 2010 SIP
submittal based on EPA’s guidance
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
54817
recommendations in place at the time of
submission. As a part of the July 16,
2010 SIP submittal, the State took
several important steps to revise the
existing SIP to make it consistent with
CAA requirements, including: (1)
Improvements to SIP provisions
pertaining to excess emissions reporting
requirements; (2) elimination of prior
SIP provisions that created an
exemption, exercised through director
discretion, for excess emission events
which was not consistent with CAA
requirements; and (3) creation of
affirmative defense provisions for excess
emissions for qualifying sources in lieu
of previously impermissible exemptions
for violations of SIP emission
limitations during such events. The EPA
appreciates the efforts of ODEQ to
improve the enforceability of their rules
with respect to excess emissions. The
EPA’s proposed actions on ODEQ’s 2010
Subchapter 9 provisions do not extend
to sources of air emissions or activities
located in Indian country, as defined at
18 U.S.C. § 1151.1 We are proposing
three related actions in this rulemaking.
First Action:
In the first action, we are proposing
approval of the following sections of the
2010 Subchapter 9 provisions as a
revision to the Oklahoma SIP: (1)
Section 252:100–9–1.1 Applicability; (2)
section 252:100–9–2 Definitions; and (3)
sections 252:100–9–7(a) through
252:100–9–7(e).2 As discussed more
fully below, these provisions generally
concern excess emission reporting
requirements which improve the State’s
ability to review, analyze, and act in
response to excess emission reports so
that the air quality impacts associated
with such emissions are minimized.
These revised provisions thus allow
better assessment of compliance with
applicable SIP emission limitations and
enforcement in the event that is
necessary. EPA notes that these sections
operate independently from the
affirmative defense requirements of
section 252:100–9–8, the subject of
today’s second proposed action. Table 1
below identifies sections of the 2010
1 Oklahoma’s July 16, 2010 SIP submittal does not
include an express demonstration of authority over
emission sources or activities in Indian country.
Therefore, our proposed approval and limited
approval/disapproval of the 2010 Subchapter 9
provisions does not extend to emission sources or
activities located in Indian country. This is
consistent with the CAA requirement that we
approve state and tribal programs only where there
is a demonstration of adequate authority. See CAA
sections 110(a)(2)(E) and 110(o).
2 Throughout this proposed rulemaking, reference
to sections of the 2010 Subchapter 9 provisions will
be those sections of the Oklahoma Administrative
Code (OAC), Title 252, Chapter 100, Subchapter 9,
as submitted to EPA on July 16, 2010, for approval
as a revision to the Oklahoma SIP.
E:\FR\FM\06SEP1.SGM
06SEP1
54818
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
Subchapter 9 provisions which EPA is
proposing for approval into the
Oklahoma SIP.
proposing for approval into the
Oklahoma SIP.
TABLE 1—SECTIONS OF THE 2010 SUBCHAPTER 9 PROVISIONS PROPOSED FOR APPROVAL
Section of the 2010 Subchapter 9
provisions
Title
252:100–9–1.1 ..............................................
252:100–9–2 .................................................
252:100–9–7(a) ............................................
252:100–9–7(b) ............................................
252:100–9–7(c) ............................................
252:100–9–7(d) ............................................
252:100–9–7(e) ............................................
Applicability ..................................................................
Definitions ....................................................................
Immediate notice .........................................................
Excess emission event report .....................................
Ongoing events ...........................................................
Alternative reporting ....................................................
Certificate of truth, accuracy and completeness required.
Second Action:
In the second action, we are
proposing a limited approval and
limited disapproval of the 2010
Subchapter 9 provisions which are not
the subject of EPA’s first action
discussed above. Specifically, we are
proposing a concurrent limited approval
and limited disapproval of section
252:100–9–1. Purpose, and the entire
section 252:100–9–8. Affirmative
Information
Propose
Propose
Propose
Propose
Propose
Propose
Propose
approval.
approval.
approval.
approval.
approval.
approval.
approval.
defenses, as a revision to the Oklahoma
SIP. Table 2 below identifies sections of
the 2010 Subchapter 9 provisions
proposed for concurrent limited
approval and limited disapproval.
TABLE 2—SECTIONS OF THE 2010 SUBCHAPTER 9 PROVISIONS PROPOSED FOR LIMITED APPROVAL AND LIMITED
DISAPPROVAL
Section of the 2010 Subchapter 9
provisions
Title
252:100–9–1 .................................................
Purpose .......................................................................
252:100–9–8(a) ............................................
Affirmative defenses—General ....................................
252:100–9–8(b) ............................................
252:100–9–8(d) ............................................
Affirmative defenses for excess emissions during
malfunctions.
Affirmative defenses for excess emissions during
startup and shutdown.
Affirmative defenses prohibited ...................................
252:100–9–8(e) ............................................
Affirmative defense determination ...............................
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
252:100–9–8(c) ............................................
The EPA has utilized the limited
approval approach numerous times in
SIP actions across the nation over the
last twenty years.3 As discussed in
section II ‘‘Evaluation’’ below, EPA
believes that approval of sections
252:100–9–1 and 252:100–9–8 of the
2010 Subchapter 9 provisions will
strengthen the Oklahoma SIP and
represent an overall improvement in the
regulation of excess emissions as
compared to the excess emissions
provisions found in the Subchapter 9
provisions in the currently EPAapproved Oklahoma SIP (last approved
by EPA in 1999); however, there are
certain portions in the 2010 Subchapter
9 provisions (e.g., the creation of an
affirmative defense for excess emissions
resulting from startup and shutdown
3 See, e.g., Approval and Promulgation of
Implementation Plans; State of Georgia; 77 FR
38503 (June 28, 2012); and Limited Approval and
Promulgation of Implementation Plans; Texas; 70
FR 50205 (August 26, 2005).
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
Information
activities) which are inconsistent with
identified CAA requirements. Because
these revisions are an improvement over
the currently approved SIP, but are not
fully consistent with the CAA, EPA’s
approval must be limited and we are
concurrently proposing a limited
disapproval. Finally, to ensure that the
inconsistencies in these specific
provisions with the CAA are corrected,
EPA’s third action below is a proposed
finding of substantial inadequacy and a
proposed SIP call to address those
provisions of the proposed limited
approval and limited disapproval action
which are inconsistent with CAA
requirements applicable to SIP
revisions. If EPA finalizes the proposed
limited approval and limited
disapproval of sections 252:100–9–1
and 252:100–9–8 of the 2010
Subchapter 9 provisions, then EPA will
also finalize the proposed finding of
substantial inadequacy and proposed
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
Propose limited
approval.
Propose limited
approval.
Propose limited
approval.
Propose limited
approval.
Propose limited
approval.
Propose limited
approval.
approval and limited disapproval and limited disapproval and limited disapproval and limited disapproval and limited disapproval and limited dis-
SIP call with respect to these provisions,
as well.
Third Action:
As stated above, EPA’s third action is
a proposed finding of substantial
inadequacy and proposed SIP call
which, if finalized together with EPA’s
second action concerning the limited
approval and limited disapproval,
would require Oklahoma to submit
revisions to those 2010 Subchapter 9
provisions in the limited approval and
limited disapproval found to be
inconsistent with the identified CAA
requirements, or otherwise submit
revisions to its excess emission
provisions that comport with the
requirements of the CAA. For a
discussion regarding the timeframe for
the adoption and submission of
proposed revisions to the Oklahoma SIP
provisions concerning excess emissions
found in the 2010 Subchapter 9
provisions, see section II(D) below.
E:\FR\FM\06SEP1.SGM
06SEP1
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
As all of the sections of the 2010
Subchapter 9 provisions listed in Table
2 above are interrelated and not
separable from one another other, as
discussed in Section II(C) below, they
are the subject of the today’s proposed
finding of substantial inadequacy and
proposed SIP call. However, Table 3
below identifies the specific sections of
the 2010 Subchapter 9 provisions which
54819
are inconsistent with the requirements
of the CAA and form the basis for the
proposed finding of substantial
inadequacy and the proposed SIP call.
TABLE 3—SECTIONS OF THE 2010 SUBCHAPTER 9 PROVISIONS THAT FORM THE BASIS FOR THE PROPOSED FINDING OF
SUBSTANTIAL INADEQUACY AND PROPOSED SIP CALL
Title
Information
252:100–9–1 .................................................
Purpose .......................................................................
252:100–9–8(a) ............................................
Affirmative defenses—General ....................................
252:100–9–8(c) ............................................
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
Section of the 2010 Subchapter 9
provisions
Affirmative defenses for excess emissions during
startup and shutdown.
Provisions not limited to excess emissions
during unplanned events.
Provisions also create an affirmative defense for planned events.
Provisions establish criteria for affirmative
defense for planned events.
If finalized, the overall effect of the
three actions proposed by EPA today
will be the replacement of the existing
Subchapter 9 provisions of the
Oklahoma SIP (i.e., those provisions
approved by EPA on November 3, 1999,
(64 FR 59629 and codified at 40 CFR
52.1920(c)(48)), with the revisions
contained in the specific 2010
Subchapter 9 provisions proposed for
approval in today’s first action and the
specific 2010 Subchapter 9 provisions
proposed for a limited approval and
limited disapproval in today’s second
action. Thus, if today’s proposed actions
are finalized, the current Subchapter 9
provisions approved in 1999 into the
Oklahoma SIP will be replaced by the
2010 Subchapter 9 provisions, and the
entire 2010 Subchapter 9 provisions
will become part of the Oklahoma SIP.
It is important to note that if finalized,
certain portions of the 2010 Subchapter
9 provisions pertaining to affirmative
defenses will also be the subject of a
finding of substantial inadequacy and a
SIP call, as reflected by EPA’s third
action proposed today, and discussed in
Section II(D) below.
Also, section 252:100–9–3 of the
Subchapter 9 provisions in the current
EPA-approved Oklahoma SIP is
presently a subject of EPA’s proposed
Findings of Substantial Inadequacy and
SIP Calls, 78 FR 12460 (February 22,
2013) (EPA’s February 22, 2013
Proposed Startup, Shutdown, and
Malfunction (SSM) SIP Calls). If today’s
actions are finalized, then the
Subchapter 9 provisions in the currently
EPA-approved Oklahoma SIP (including
section 252:100–9–3 of those
Subchapter 9 provisions) will no longer
be part of the Oklahoma SIP.
Consequently, if EPA finalizes approval
of the 2010 Subchapter 9 provisions,
any outstanding SIP call related to
section 252:100:9–3 of the currently
EPA-approved SIP, such as the one
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
proposed under EPA’s February 22,
2013. Proposed SSM SIP Calls, will be
moot, because section 252:100–9–3 of
currently EPA-approved Oklahoma SIP
will no longer be part of the federallyapproved Oklahoma SIP. Final approval
of the 2010 Subchapter 9 provisions will
resolve the specific SIP deficiencies that
EPA identified in the EPA’s February
22, 2013 Proposed SSM SIP Calls.
As discussed below, EPA’s proposed
finding of substantial inadequacy and
proposed SIP call (with respect to
today’s second action concerning the
limited approval and limited
disapproval of certain provisions of the
2010 Subchapter 9 provisions) relates to
specific inseparable sections (or
inseparable words within a section) of
the 2010 Subchapter 9 provisions. More
specifically, EPA is proposing to find
that the inclusion of an affirmative
defense for excess emissions during
startup and shutdown, such as the one
contained in sections 252:100–9–8(a)
and (c) of the 2010 Subchapter 9
provisions, is inconsistent with the
requirements of CAA section 110.
Further, it is contrary to the
fundamental enforcement structure
provided in CAA sections 113 and 304,
thereby constituting a substantial
inadequacy, which renders those SIP
provisions impermissible. See Section II
‘‘Evaluation’’ below and also EPA’s
February 22, 2013 Proposed SSM SIP
Calls, a copy of which is included in the
docket for this rulemaking, for a more
detailed discussion of the affirmative
defense for planned activities, such as
startup and shutdown.
B. What documents did we use in our
evaluation of the July 16, 2010 SIP
submittal?
EPA’s interpretation of the Act as it
applies to SIP provisions that address
excess emissions occurring during
periods of startup, shutdown, and
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
malfunction is set forth in a series of
guidance documents. These guidance
documents include: (1) A memorandum
dated September 28, 1982, from
Kathleen M. Bennett, Assistant
Administrator for Air, Noise, and
Radiation, entitled ‘‘Policy on Excess
Emissions During Startup, Shutdown,
Maintenance, and Malfunctions’’ (1982
Policy); (2) a memorandum, dated
February 15, 1983, from Kathleen M.
Bennett, Assistant Administrator for
Air, Noise, and Radiation (1983 Policy);
(3) a memorandum dated September 20,
1999, from Steven A. Herman, Assistant
Administrator for Enforcement and
Compliance Assurance and Robert
Perciasepe, Assistant Administrator for
Air and Radiation, entitled ‘‘State
Implementation Plans: Policy Regarding
Excess Emissions During Malfunctions,
Startup, and Shutdown’’ (1999 Policy);
and (4) a memorandum dated December
5, 2001 from Eric Schaeffer, Director,
Office of Regulatory Enforcement, Office
of Enforcement and Compliance
Assurance and John S. Seitz, Director,
Office of Air Quality Planning and
Standards, Office of Air and Radiation
(2001 Policy).
EPA’s interpretation of the CAA with
respect to SIP provisions that address
excess emissions during SSM events has
been applied in rulemaking, including,
but not limited to: (1) EPA’s final rule
for Utah’s sulfur dioxide control strategy
(Kennecott Copper), April 27, 1977 (42
FR 21472); (2) EPA’s final rule for
Idaho’s sulfur dioxide control strategy,
November 8, 1977 (42 FR 58171); (3)
EPA’s ‘‘Finding of Substantial
Inadequacy of Implementation Plan:
Call for Utah State Implementation Plan
Revision,’’ April 18, 2011 (76 FR 21639).
EPA has recently issued a proposal in
response to a petition for rulemaking
concerning CAA requirement for SIP
provisions that address excess
emissions, reiterating EPA’s
E:\FR\FM\06SEP1.SGM
06SEP1
54820
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
interpretation of the CAA with respect
to such provisions. See EPA’s February
22, 2013 Proposed SSM SIP Calls—
Docket No. EPA–HQ–OAR–2012–0322;
and EPA’s February 4, 2013, Statutory,
Regulatory, and Policy Context
Memorandum for the February 22, 2013
Proposed SSM SIP Calls. In this recent
action, EPA has specifically addressed
the requirements of the CAA with
respect to SIP provisions that provide an
affirmative defense for violations of
emission limitations due to excess
emissions during SSM events.
In addition, EPA evaluation
responsibilities associated with the
review of the July 16, 2010 SIP
submittal draw upon the concepts of
‘‘separability’’ as expressed in
Bethlehem Steel Corp. v. Gorsuch, 742
F. 2d 1028 (7th Cir. 1984) and the EPA
memorandum, dated July 9, 1992, from
John Calcagni, Director, Air Quality
Management Division, entitled
‘‘Processing of State Implementation
Plan (SIP) Submittals’’ (1992 Calcagni
Memo). A copy of each relevant
document is available in the docket for
this rulemaking.
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
C. What is the background for this
proposed rulemaking?
On January 25, 1984 (49 FR 3084),
EPA approved Regulation 1.5, Reports
Required: Excess Emissions During
Startup, Shutdown and Malfunction of
Equipment, into the Oklahoma SIP. This
revision became effective on February
24, 1984. Later, Regulation 1.5 was
recodified and renumbered by ODEQ (as
Subchapter 9 Excess Emission and
Malfunction Reporting Requirements)
and approved by EPA as an
administrative revision to the Oklahoma
SIP on November 3, 1999 (64 FR 59629)
(1994 Subchapter 9 provisions). As of
today’s proposed action, the 1994
Subchapter 9 provisions remain part of
the EPA-approved Oklahoma SIP. See
part 1 of the Technical Support
Document (TSD) prepared in
conjunction with this proposed
rulemaking.
On February 14, 2002, ODEQ
submitted to EPA a revised version of
Subchapter 9 that was not acted upon in
the approval action of the Air Quality
Implementation Plans; Oklahoma;
Recodification of Regulations, published
on December 29, 2008 at 73 FR 79400
(also known as the Oklahoma’s Big SIP).
See part 2 of the TSD. The Subchapter
9 portion of the February 14, 2002
submittal was subsequently withdrawn
and replaced by ODEQ with the new
Subchapter 9 provisions, as part of the
July 16, 2010 SIP submittal which is the
subject of today’s proposed actions
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
(2010 Subchapter 9 provisions). See part
3 of TSD.
II. Evaluation
A. Introduction
Under the principle of cooperative
federalism, both states and EPA have
authorities and responsibilities under
the CAA with respect to SIPs. Pursuant
to section 109 of the CAA, 42 USC
§ 7409, EPA promulgates National
Ambient Air Quality Standards
(NAAQS) for criteria pollutants the
attainment and maintenance of which
are considered requisite to protect the
public health and welfare. Under CAA
section 107(a), each state has the
primary responsibility for assuring that
the NAAQS are attained and maintained
throughout the state. Under section
110(a)(1) of the CAA, 42 U.S.C.
7410(a)(1), each state is required to
develop and submit to EPA for approval
a plan which provides for the
implementation, maintenance, and
enforcement of the NAAQS; such plans
are called state implementation plans or
SIPs. Section 110(a)(2) of the CAA, 42
U.S.C. 7410(a)(2), requires each SIP to
meet the requirements listed in section
110(a)(2)(A) through (M). Under CAA
section 110(a)(2)(H)(ii), states have a
specific duty to revise their SIPs
whenever EPA finds that the SIP is
substantially inadequate to comply with
requirements established under the Act.
In the development of its SIP, a state
has broad authority to develop the mix
of emission limitations it deems best
suited for its particular situation, but the
exercise of this discretion is not
unbridled. The states have the primary
responsibility to develop SIPs that meet
applicable statutory and regulatory
requirements for attaining, maintaining,
and enforcing the NAAQS. Under
section 110(k) of the CAA, however,
EPA is required to determine whether or
not a SIP submission in fact meets all
applicable requirements of the Act. EPA
is authorized to approve, disapprove,
partially approve and partially
disapprove, or conditionally approve a
given SIP submission, as appropriate.
When a SIP submission does not meet
the applicable requirements of the CAA,
EPA is obligated to disapprove it, in
whole or in part, as appropriate. In
addition, when EPA finds a state’s
existing SIP is substantially inadequate
to attain or maintain a NAAQS or
otherwise to comply with any other
CAA requirement, EPA is authorized
under section 110(k)(5) to require the
state to revise its SIP as necessary to
correct such inadequacies.
Sections 110(l) and 193 of the CAA
impose additional requirements upon
PO 00000
Frm 00032
Fmt 4702
Sfmt 4702
EPA when reviewing a state’s proposed
revision to its SIP. Section 110(l) of the
CAA, 42 U.S.C. 7410(l), provides that
EPA may not approve a SIP revision if
‘‘the revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress, or any other applicable
requirement of this chapter.’’ In
addition, section 193 of the CAA
prohibits SIP revisions that would affect
control measures in effect prior to the
1990 amendments to the CAA in any
area that is designated nonattainment
for any NAAQS, unless the modification
insures equivalent to greater emission
reductions of such air pollutant. A more
detailed discussion of the SIP
requirements that may be relevant to
this rulemaking are included in the
docket, including section VIII ‘‘Legal
Authority, Process, and Timing for SIP
Calls’’ of EPA’s February 22, 2013
Proposed SSM SIP Calls (78 FR 12483),
and the associated legal memorandum
in the docket for that rulemaking.
The statutory framework summary
presented above underlies EPA’s
evaluation of SIP submissions as they
relate to excess emissions. The EPA has
a longstanding interpretation of the
CAA with respect to the treatment of
excess emissions during periods of
startup, shutdown or malfunctions in
SIPs. See section I(B) above. Central to
EPA’s interpretation is the definition of
‘‘emission limitation’’ and ‘‘emission
standard’’ contained in CAA section
302(k), 42 U.S.C. 7602(k), which are
defined as limitations that must be met
on a continuous basis. Under section
110(a)(2)(A) of the Act, 42 U.S.C.
7410(a)(2)(A), each SIP must include
enforceable emission limitations and
other control measures as may be
necessary or appropriate to meet the
applicable requirements of the Act. In
addition, under CAA section
110(a)(2)(C), 42 U.S.C. 7410(a)(2)(C),
each SIP must include a program to
provide for the enforcement of the
measures described in CAA section
110(a)(2)(A) and provide for the
regulation of sources as necessary to
ensure the attainment and maintenance
of the NAAQS and protection of
Prevention of Significant Deterioration
(PSD) increments.
While the CAA requires that emission
limitations in a SIP must be met on a
‘‘continuous’’ basis, compliance with
such limitations 100% of the time may
be practically and technologically
impossible. Case law holding that
technology-based standards should
account for the practical realities of
technology support EPA’s view that an
enforcement program under a SIP that
incorporates some level of flexibility is
E:\FR\FM\06SEP1.SGM
06SEP1
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
reasonable and consistent with the
overall intent of the CAA.4 While EPA
views all excess emissions as violations
of emission limitations or emission
standards, we recognize that, in certain
situations, imposition of a civil penalty
for sudden and unavoidable
malfunctions caused by circumstances
entirely beyond the control of the owner
or operator may not be appropriate.
In addressing excess emissions due to
sudden and unavoidable malfunctions,
the EPA has provided guidance on three
approaches states may use: (1)
Traditional enforcement discretion; (2)
SIP provisions that address the exercise
of enforcement discretion by state
personnel; and (3) SIP provisions that
provide a narrowly tailored affirmative
defense to civil penalties. Under the
first approach, the State (or another
entity, such as EPA, seeking to enforce
a violation of the SIP) may consider the
facts and circumstances surrounding the
event in determining whether to pursue
enforcement. Under the second
approach, states may elect to create SIP
provisions that provide parameters for
the exercise of enforcement discretion
by state personnel, so long as they do
not affect enforcement by EPA or
citizens. Under the third approach,
states may elect to create SIP provisions
that establish an affirmative defense that
may be raised by the defendant in the
context of an enforcement proceeding
for civil penalties (not injunctive relief),
and for which the defendant has the
burden to prove that certain criteria
have been met. See page 2 of the
Attachment to the 1999 Policy; see also
EPA’s February 22, 2013 Proposed SSM
SIP Calls, at 78 FR 12478.
Most relevant to this action, EPA
interprets the CAA to allow SIP
provisions that provide an affirmative
defense, so long as they are
appropriately drawn. EPA guidance
recommends criteria that it considers
necessary to assure that the affirmative
defense is consistent with CAA
requirements for SIP provisions. The
EPA believes that narrowly-tailored
affirmative defense provisions can
supply flexibility both to ensure that
emission limitations are ‘‘continuous’’
as required by CAA section 302(k)
because any violations remain subject to
a claim for injunctive relief, and to
provide limited relief in actions for
penalties for malfunctions that are
beyond the control of the owner where
the owner has taken necessary steps to
minimize the likelihood and extent of
4 See, e.g., Essex Chemical v. Ruckelshaus, 486
F.2d 427, 433 (D.C. Cir. 1973); and Portland Cement
Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir.
1973)
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
any such violation. Several courts have
agreed with this approach.5 Neither the
enforcement discretion nor the
affirmative defense approaches may
waive reporting requirements for the
violation. States are not required to
employ an affirmative defense
approach, but if they choose to do so,
EPA will evaluate the state’s SIP
provisions for consistency with the Act
as interpreted by our policy and
guidance, including those documents
listed in section I.B above. In the 2010
Subchapter 9 provisions of its July 16,
2010 SIP submittal, ODEQ adopted the
affirmative defense approach to address
excess emissions events.
EPA acknowledges that ODEQ
developed these affirmative defenses in
the July 16, 2010 SIP submittal,
consistent with EPA guidance at that
time. However, EPA has reexamined its
interpretation of the CAA with respect
to affirmative defenses and accordingly
believes that such affirmative defenses
are only appropriate in the case of
unplanned events like malfunctions, not
in the case of planned events such as
startup and shutdown for which sources
should be expected to comply with
applicable SIP emission limitations.
Under CAA section 110(k) and section
110(l), EPA is obligated to determine
whether SIP submissions in fact meet
CAA requirements and our
interpretation of the Act at the time EPA
takes action on the SIP submission.
B. Why are we proposing approval of
portions of the July 16, 2010 SIP
submittal?
Consistent with provisions of section
110(k) and section 110(l) of the CAA, 42
U.S.C. 7410(k) and 7410(l), EPA believes
that there are portions of the 2010
Subchapter 9 provisions which are
consistent with the requirements of the
CAA for SIPs and would not interfere
with any applicable requirement
concerning attainment and reasonable
further progress or any other applicable
requirement of the CAA. These
provisions are identified in Table 1
above and include: (1) Section 252:100–
9–1.1 Applicability, which provides that
owners and operators of air contaminant
sources are subject to the requirements
of this subchapter; (2) section 252:100–
9–2, which defines terms that are
frequently used in the Subchapter 9
5 See, Luminant Generation Co. v. EPA, 714 F.3d
841 (5th Cir. 2013), Cert. pending (upholding the
EPA’s approval of an affirmative defense applicable
during malfunctions in a SIP submission as a
permissible interpretation of the statute under
Chevron step 2 analysis); Mont. Sulphur &
Chemical Co. v. EPA, 666 F.3d 1174 (9th Cir. 2012);
and Ariz. Public Service Co. v. EPA, 562 F.3d 1116,
1130 (9th Cir. 2009).
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
54821
provisions; and (3) sections 252:100–9–
7(a) through (e) which address the
notification, reporting requirements,
and certificate of accuracy of the
information concerning excess
emissions events. Together these
provisions require owners and operators
to notify and report excess emissions to
ODEQ within specified timeframes.
The proper notification and reporting
of excess emission events and the
relevant information corresponding to
those events will enable ODEQ to
review, evaluate, and utilize the
information submitted as a tool in its air
quality planning/management efforts
and assist its efforts to provide for
attainment and maintenance of the
NAAQS and other applicable
requirements of the Act. These
applicability, definitions, and
notification requirements in the 2010
Subchapter 9 provisions are
independent from the affirmative
defense requirements set forth in section
252:100–9–8 of the 2010 Subchapter 9
provisions. In other words, approval of
these provisions (section 252:100–9–1.1,
section 252:100–9–2, and sections
252:100–9–7(a) through (e)) into the
Oklahoma SIP is consistent with, and
will not render other sections of the
2010 Subchapter 9 provisions more
stringent than what the State intended
or anticipated when ODEQ adopted the
2010 Subchapter 9 provisions.
Therefore, EPA believes that the
proposed approval of these provisions
are separable from the remainder of the
2010 Subchapter 9 provisions submitted
as part of the July 16, 2010 SIP
submittal. In particular, we believe that
EPA’s approval of these specific
provisions will not result in sections
252:100–9–1.1, 252:100–9–2, and
252:100–9–7(a) through (e), as reflected
in the first action, being more stringent
than ODEQ anticipated or intended. See
Bethlehem Steel Corp. v. Gorsuch, 742
F.2d 1028, 1036–37 (7th Cir. 1984); see
also 1992 Calcagni Memo.
Furthermore, proposed approval of
the specific provisions covered by the
first action would enhance the ability of
the State, EPA, and citizens to address
excess emissions-related activities
consistent with CAA sections 110, 113,
302(k) and 304, while simultaneously
eliminating the discretionary
exemptions from compliance with
otherwise applicable emission
limitations under the Subchapter 9
provisions in the currently EPAapproved Oklahoma SIP. Removal of the
existing provisions that allow
exemptions for excess emissions during
SSM events via the exercise of director’s
discretion brings the Oklahoma SIP into
E:\FR\FM\06SEP1.SGM
06SEP1
54822
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
compliance with CAA requirements
with respect to this issue.
As explained in more detail in EPA’s
February 22, 2013 Proposed SSM SIP
Calls (78 FR 12460), such director’s
discretion provisions are inconsistent
with fundamental CAA requirements for
SIP provisions. Therefore, our proposed
approval of those sections of the 2010
Subchapter 9 provisions covered by this
first proposed action improves the SIP
for Oklahoma and comports with the
standards governing SIP revisions as set
forth in section 110(k) and section 110(l)
of the Act. EPA believes that the specific
sections of the 2010 Subchapter 9
provisions, identified in the first action
of this document, meet the statutory
requirements of the Act for SIP
provisions and assist in providing for
attainment and maintenance of the
NAAQS and protection of PSD
increments. We are therefore proposing
the approval of sections 252:100–9–1.1,
252:100–9–2, and 252:100–9–7(a)
through (e) of the 2010 Subchapter 9
provisions as a revision to the SIP for
Oklahoma.
C. Why are we proposing a limited
approval and limited disapproval of
portions of the July 16, 2010 SIP
submittal?
In some cases, a SIP submittal may
contain certain provisions that meet the
applicable requirements of the Act along
with other provisions that do not meet
CAA requirements, and the provisions
are not separable. Although the
submittal may not meet all of the
applicable requirements, EPA may
consider whether the submittal as a
whole has a strengthening effect on the
SIP. If that is the case, a limited
approval may be used to approve a rule
that strengthens the existing SIP,
because it constitutes an improvement
over what is currently in the SIP and
meets some of the applicable
requirements of the Act. If the rule does
not meet all of the applicable
requirements, EPA may elect to use a
limited disapproval in conjunction with
the limited approval. The Act does not
expressly provide for limited approvals
and limited disapprovals; rather, EPA is
using its ‘‘gap-filling’’ authority under
section 301(a) of the Act, 42 U.S.C.
7601(a), in conjunction with the
authority under CAA section 110(k)(3),
to interpret the Act to provide for this
type of approval action.
The primary advantage to using the
limited approval approach is to make
the state’s SIP submittal federally
enforceable and to increase the SIP’s
potential to achieve additional emission
reductions. The utility of the limited
disapproval approach is to identify the
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
specific aspects of the SIP submittal that
are not fully consistent with CAA
requirements so that the state may then
take appropriate action to make
necessary SIP revisions. EPA’s
evaluation of the 2010 Subchapter 9
provisions submitted by Oklahoma
indicates that certain portions of the SIP
submittal present a situation where a
limited approval and limited
disapproval is the correct approach.
EPA is proposing limited approval
and limited disapproval of the following
portions of the 2010 Subchapter 9
provisions submitted as part of the July
16, 2010 SIP submittal: (1) Section
252:100–9–1 Purpose, which sets forth
the purpose of the 2010 Subchapter 9
provisions and includes a reference to
the affirmative defense provisions; and
(2) section 252:100–9–8, Affirmative
defenses. As discussed below, these
provisions as a whole strengthen the
SIP, even though there are portions of
these provisions which are inconsistent
with CAA requirements for SIP
provisions as they relate to affirmative
defenses for violations due to excess
emissions during certain types of
events. Furthermore, EPA finds that
those portions which are inconsistent
with the requirements of the Act are not
separable from the remainder of the
provisions that are consistent with the
CAA requirements. Therefore, EPA is
proposing a limited approval and
limited disapproval of these provisions
as a whole. The following paragraphs
discuss each of these provisions in
detail and describe why EPA believes
that they do not meet applicable CAA
requirements.
Section 252:100–9–1. Purpose of the
2010 Subchapter 9 provision is
inconsistent with the requirements of
the CAA because it contains an overly
broad reference to the affirmative
defense provisions for excess emissions.
The term ‘‘excess emissions,’’ defined in
section 252:100–9–2, is not limited to
excess emissions occurring during
unplanned events such as malfunctions.
As explained in detail below, EPA
believes that the creation of an
affirmative defense for violations due to
excess emissions from planned events—
such as startup, shutdown, and
maintenance—is inconsistent with the
requirements of CAA section 110(a) and
is inconsistent with the fundamental
enforcement structure provided in CAA
sections 113 and 304.6 Should
6 See Luminant Generation Co. v. EPA, 714 F.3d
841,856 (5th Cir. 2013) Cert. pending,
acknowledging EPA’s belief that ‘‘an effective
enforcement program must be able to collect
penalties to deter avoidable violations.’’ See also,
EPA’s February 22, 2013. Proposed SIP Calls (78 FR
12460, 12480).
PO 00000
Frm 00034
Fmt 4702
Sfmt 4702
Oklahoma elect to incorporate an
affirmative defense provision for excess
emissions during unavoidable violations
into the Oklahoma SIP, then section
252:100–9–1 should be revised to limit
the affirmative defense reference only to
those excess emissions during
malfunctions, as discussed below.
EPA’s evaluation of the affirmative
defense provisions established in
section 252:100–9–8 of the 2010
Subchapter 9 provisions begins with
section 252:100–9–8(a). The first
sentence of that section states that all
excess emissions regardless of cause are
violations; however, the second
sentence in that section provides an
affirmative defense applicable to
violations due to excess emissions
during startup, shutdown and
malfunction (all three categorical
events). Section 252:100–9–8(a) as
submitted is an improvement to the
current EPA-approved SIP for excess
emissions (i.e., the 1994 Subchapter 9
provisions). For example, as discussed
in the TSD included in the docket for
this rulemaking, section 252:100–9–3 of
the current EPA-approved Oklahoma
SIP creates an exemption via director
discretion, such that excess emissions
during startup, shutdown, malfunction,
or maintenance are not violations of the
applicable emission limitations.
In accordance with CAA sections
110(a)(2)(A) and 302(k), SIPs must
contain ‘‘emission limitations’’ and
those limitations must be continuous.
Thus, any excess emissions above the
level of the applicable SIP emission
limitations must be considered a
violation of such limitations. In
addition, SIP provisions that operate to
create exemptions from SIP
requirements through the exercise of
director’s discretion are also
inconsistent with CAA requirements for
SIP revisions. For these reasons, as
discussed in EPA’s February 22, 2013
Proposed SSM SIP Calls (78 FR 12524),
EPA has already proposed a finding of
substantial inadequacy and proposed a
SIP call with respect to OAC 252:110–
9–3 of the currently EPA-approved
Oklahoma SIP. Section 252:100–9–8(a)
of the 2010 Subchapter 9 provisions is
an improvement to the current EPAapproved Oklahoma SIP because it
eliminates the exemption via director
discretion provision, so that all excess
emissions regardless of cause are
considered violations.
However, section 252:100–9–8(a) is
also inconsistent with the requirements
provided in CAA sections 110(a)(2) and
conflicts with the fundamental
enforcement structure provided in CAA
sections 113 and 304, because it creates
an affirmative defense for violations due
E:\FR\FM\06SEP1.SGM
06SEP1
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
to excess emissions during startups and
shutdowns. As explained in Section
VII(C), ‘‘Affirmative Defense Provisions
During Periods of Startup and
Shutdown,’’ of EPA’s February 22, 2013
Proposed SIP Calls, EPA’s approval of a
SIP provision which provides a limited
affirmative defense to a source for
excess emissions during periods of
malfunction may be permissible, but
EPA’s approval of such a defense would
not be permissible for excess emissions
during periods of startup and shutdown.
See 78 FR 12480. EPA believes that
providing affirmative defenses for
avoidable violations, such as those
resulting from excess emissions during
planned events such as startups and
shutdowns, that are within the control
of the owner or operator of the source,
is inconsistent with the requirements
provided in CAA section 110(a) and the
fundamental enforcement structure
provided in CAA sections 113 and 304,
which provide for potential civil
penalties for violations of SIP
requirements.
SIP provisions providing affirmative
defenses can be appropriate for
malfunctions because, by definition and
unlike planned startups and shutdowns,
malfunctions are unforeseen and could
not have been avoided by the owner or
operator of the source, and the owner or
operator of the source will have taken
steps to prevent the violation and to
minimize the effects of the violation
after it occurs. In such circumstances,
EPA interprets the Act to allow
narrowly drawn affirmative defense
provisions that may provide relief from
civil penalties (but not injunctive relief)
to owners or operators of sources, when
their conduct justifies this relief. Such
is not the case with planned and
predictable events, such as startups and
shutdowns, during which the owners or
operators of sources should be expected
to comply with applicable SIP emission
limitations and should not be accorded
relief from civil penalties if they fail to
do so.7 Providing an affirmative defense
for monetary penalties for violations
that result from planned events is
inconsistent with the basic premise that
the excess emissions were beyond the
control of the owner or operator of the
source, and thus is diametrically
opposed to the intended purpose of
such an affirmative defense to
encourage better compliance even by
7 EPA notes that a state can elect to adopt
alternative emission limitations that apply to
normal modes of source operation, such as startup
and shutdown, so long as these provisions are
consistent with CAA requirements. EPA’s February
22, 2013 Proposed SSM SIP Calls also provides
guidance on how such SIP provisions may be
developed to meet CAA requirements.
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
sources for which 100 percent
compliance is not possible.
As explained above, EPA interprets
the CAA to allow a SIP revision which
provides a narrowly tailored affirmative
defense for excess emissions due to
malfunctions; however, it cannot
approve such a defense for excess
emissions during planned events such
as startups and shutdown activities.
Separating the words ‘‘startup’’ and
‘‘shutdown’’ from the remainder of the
second sentence in section 252:100–9–
8(a) could make the approval of the
remainder of that section more stringent
than Oklahoma anticipated or intended.
For example, had Oklahoma known at
the time of the rule adoption it would
be impermissible for EPA to approve a
SIP revision which creates an
affirmative defense for excess emissions
due to startups and shutdowns, ODEQ
may have elected to establish alternative
emission limitations or other control
measures or techniques designed to
minimize emissions during startup and
shutdown activities in lieu of the
affirmative defense. Applying the
principles established in Bethlehem
Steel and as expressed in the 1992
Calcagni Memo, we believe that in this
particular factual scenario with the
wording of these specific provisions,
EPA cannot merely excise the words
‘‘startup’’ and ‘‘shutdown’’ from the
second sentence in section 252:100–9–
8(a), and approve the remainder of the
section into the Oklahoma SIP.8
Likewise, in looking at the other
provisions of section 252:100–9–8, we
believe that they are not separable from
section 252:100–9–8(a), which is the
general provision that establishes the
affirmative defenses for startup,
shutdown, and malfunction events in
the first instance. That is, the general
provisions of section 252:100–9–8(a)
which create the affirmative defenses
are inextricably intertwined with the
remainder of the other provisions in
section 252:100–9–8 (that is, sections
252:100–9–8(b) through 252:100–9–
8(e)), and those latter provisions cannot
stand by themselves. Given that EPA
cannot propose a full approval of
section 252:100–9–8, it follows that EPA
cannot propose full approval of section
252:100–9–1 which states that part of
the purpose of the Subchapter 9
provisions is to establish affirmative
defenses for excess emissions for all
three categories of events, as discussed
above.
Although EPA cannot propose full
approval of section 252:100–9–8(a), we
8 See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d
1028, 1036–37 (7th Cir. 1984); see also 1992
Calcagni Memo at 2.
PO 00000
Frm 00035
Fmt 4702
Sfmt 4702
54823
have evaluated section 252:100–9–8(b)
with respect to the affirmative defense
for excess emissions during
malfunctions for consistency with CAA
requirements. This provision requires
that in asserting an affirmative defense
for excess emissions during
malfunctions, the owner or operator of
a facility must demonstrate certain
criteria by a preponderance of evidence
in order to qualify for the affirmative
defense in a judicial or administrative
proceeding. EPA has guidance making
recommendations for criteria
appropriate for affirmative defense
provisions that would be consistent
with the requirements of the CAA.
EPA’s 1999 Policy and the February 22,
2013 Proposed SSM SIP Calls lay out
these criteria. These are guidance
recommendations and states do not
need to track EPA’s recommended
wording verbatim, but states should
have SIP provisions that are consistent
with these recommendations in order to
assure that the affirmative defense meets
CAA requirements. Our evaluation
indicates that the affirmative defense
criteria set forth in 252:100–9–8(b)
combined with the requisites set forth in
sections 252:100–9–8(d) and (e) are
sufficiently consistent with these
recommended criteria for affirmative
defense provisions in SIPs for
malfunctions. For a detailed comparison
of the affirmative defense criteria for
malfunctions in the 2010 Subchapter 9
provisions with those recommended in
EPA’s guidance, see the TSD.
Therefore, as part of the limited
approval, we propose that these sections
constitute a sufficiently narrow
affirmative defense provision for
malfunctions that would not interfere
with the CAA requirements discussed
above. As such, section 252:100–9–8(b)
of the 2010 Subchapter 9 provisions is
not itself substantially inadequate and is
not the basis for the proposed SIP call
that is part of the third action proposed
today. However, because the affirmative
defense for malfunction events is not
separable from the affirmative defense
provision applicable to startup and
shutdown events, it will nevertheless be
included in the proposed finding of
substantial inadequacy and proposed
SIP call in the third action. Should
Oklahoma elect to establish an
affirmative defense restricted to
malfunctions, then section 252:100–9–
8(b) could be resubmitted at ODEQ’s
discretion.
As part of the limited disapproval, we
propose that the affirmative defense
provisions applicable to startup and
shutdown are not consistent with CAA
requirements for SIP provisions. Section
252:100–9–8(c) provides that in
E:\FR\FM\06SEP1.SGM
06SEP1
54824
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
asserting an affirmative defense for
excess emissions during startup and
shutdown, the owner or operator of a
facility must demonstrate certain
criteria by a preponderance of evidence
in a judicial or administrative
proceeding. As discussed above,
however, an affirmative defense for
planned events, such as startup and
shutdown, is inconsistent with and
would interfere with the requirements
of CAA section 110(a) and the
fundamental enforcement structure
provided in CAA sections 113 and 304
which provide for potential civil
penalties for violations of SIP emission
limits. Accordingly, these deficiencies
in section 252:100–9–8(c) form part of
the basis for the proposed finding of
substantial inadequacy and proposed
SIP call, as discussed in the third action
proposed today.
Section 252:100–9–8(d) identifies
situations where assertion of the
affirmative defense is not allowed and
Section 252:100–9–8(e) states that the
Director will consider the notification
requirements, in addition to other
relevant information in the
determination process,9 but such
determinations should not be construed
as limiting EPA or citizens’ authority to
enforce the emission limits of the SIP
under the Act. Taken together, these
sections provide for enforcement and
compliance determination of a source
during excess emission events. If
limited to affirmative defenses for
violations due to excess emissions
during malfunctions, these two
provisions would not interfere with the
requirements set forth in CAA sections
110(a) and 302(k), nor would such
sections be inconsistent with the
fundamental enforcement structure
provided in CAA sections 113 and 304.
Accordingly, sections 252:100–9–8(d)
and 252:00–9–8(e) are not substantially
inadequate with CAA requirements and
do not form the basis for the proposed
finding of substantial inadequacy and
proposed SIP call, as discussed in the
third action proposed today.
In summary, EPA believes that the
affirmative defense provisions of section
252:100–9–8, taken as a whole, when
compared against the currently EPAapproved SIP provisions for excess
emissions, would strengthen the SIP for
Oklahoma, if approved. However, there
9 We note that 252:100–9–8(a) of the 2010
Subchapter 9 provisions provides an affirmative
defense to owners and operators for civil or
administrative penalty actions for excess emissions
during emission events. We interpret the
‘‘determination’’ language in 252:100–9–8(e) to
mean how the Director determines whether or not
to pursue enforcement against an owner and
operator for excess emissions violations.
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
are specific provisions, namely those
that would provide for affirmative
defenses for violations due to excess
emission during planned events such as
startups and shutdowns, which are
inconsistent with applicable
requirements of the CAA for SIP
purposes. Therefore, we are proposing a
limited approval and limited
disapproval of sections 252:100–9–1
and 252:100–9–8 of the 2010
Subchapter 9 provisions into the SIP for
Oklahoma. If EPA finalizes the limited
approval and limited disapproval, these
sections (sections 252:100–9–1 and
252:100–9–8) will become part of the
SIP and federally enforceable until EPA
approves a revised submission from
Oklahoma that is fully approvable. To
ensure Oklahoma addresses the three
sections that form the basis of EPA’s
limited approval and limited
disapproval (sections 252:100–9–1,
252:100–9–8(a), and 252:100–9–8(c)) we
are simultaneously proposing a finding
of substantial inadequacy and SIP call to
address these three sections, if EPA
finalizes that limited approval and
limited disapproval in the final action.
The next section discusses the proposed
finding of substantial inadequacy and
proposed SIP call in more detail.
D. Why are we proposing a finding of
substantial inadequacy and a SIP call?
As stated in Section II(C) above,
today’s action proposes the limited
approval and limited disapproval of
those portions of the 2010 Subchapter 9
provisions identified in Table 2 above.
Should today’s second action be
finalized as proposed, all of those
provisions will become part of the
Oklahoma SIP. However, as noted
above, we recognize that certain
portions of those provisions (pertaining
in various ways to the affirmative
defense provisions applicable to startup
and shutdown events) do not meet all
CAA requirements for SIP purposes. In
order to ensure that Oklahoma takes
action to correct those specific
deficiencies, we are also proposing a
finding of substantial inadequacy and a
SIP call with respect to the provisions
for which EPA is proposing the limited
approval and limited disapproval,
which will be finalized when EPA
finalizes the second action as proposed
today. The legal basis for the finding of
substantial inadequacy and the SIP call
and a discussion of the specific
provisions subject to the proposed SIP
call are discussed below.
The CAA provides a mechanism for
the correction of flawed SIPs, under
CAA section 110(k)(5), which provides:
(5) Calls for plan revisions
PO 00000
Frm 00036
Fmt 4702
Sfmt 4702
Whenever the Administrator finds that the
applicable implementation plan for any area
is substantially inadequate to attain or
maintain the relevant national ambient air
quality standards, to mitigate adequately the
interstate pollutant transport described in
section [176A] of this title or section [184] of
this title, or to otherwise comply with any
requirement of [the Act], the Administrator
shall require the State to revise the plan as
necessary to correct such inadequacies. The
Administrator shall notify the State of the
inadequacies and may establish reasonable
deadlines (not to exceed 18 months after the
date of such notice) for the submission of
such plan revisions.
By its explicit terms, this provision
authorizes the EPA to find that a state’s
SIP is ‘‘substantially inadequate’’ to
meet CAA requirements and, based on
that finding, to ‘‘require the State to
revise the [SIP] as necessary to correct
such inadequacies.’’ This type of action
is commonly referred to as a ‘‘SIP call.’’
CAA section 110(k)(5) expressly directs
EPA to take action if the SIP provision
is substantially inadequate not just for
purposes of attainment or maintenance
of the NAAQS, but also for purposes of
meeting ‘‘any requirement’’ of the CAA.
In particular, EPA notes that section
110(k)(5) authorizes the agency to make
such a finding and issue a SIP call
‘‘whenever’’ it determines a state’s SIP
to be substantially inadequate, and thus
EPA has authority to propose such a
finding and issue in SIP call
prospectively in the event that it
finalizes the limited approval and
limited disapproval contemplated in
this proposal. If our limited approval
and limited disapproval is finalized, at
that time the state’s SIP will be
substantially inadequate due to the SIP
provisions concerning affirmative
defenses for startup and shutdown
events.
As stated in Section II(C) above, the
EPA interprets the CAA to allow only
narrowly drawn affirmative defense
provisions that are available for events
that are entirely beyond the control of
the owner or operator of the source.
Thus, an affirmative defense may be
appropriate for events like
malfunctions, which are sudden and
unavoidable events that cannot be
foreseen or planned for. The underlying
premise for an affirmative defense
provision is that the source is properly
designed, operated, and maintained,
and could not have taken action to
prevent the exceedance. Because the
qualifying source could not have
foreseen or prevented the event, the
affirmative defense is available to
provide relief from monetary penalties
that could result from an event beyond
the control of the source.
E:\FR\FM\06SEP1.SGM
06SEP1
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
The legal and factual basis supporting
the concept of an affirmative defense for
malfunctions does not support
providing an affirmative defense for
normal modes of operation like startup
and shutdown. Such events are planned
and predictable. The source should be
designed, operated, and maintained to
comply with applicable emission
limitations during normal and
predictable source operation. Because
startup and shutdown periods are part
of a source’s normal operations, the
same approach to compliance with, and
enforcement of, applicable emission
limitations during those periods should
apply as otherwise applies during a
source’s normal operations. If justified,
the state can develop and submit to EPA
for approval as part of the SIP,
alternative emission limitations or
control measures that apply during
startup and shutdown, if the source
cannot meet the otherwise applicable
emission limitations in the SIP.
Even if a source is a suitable
candidate for alternative SIP emission
limitations during startup and
shutdown, however, that does not
justify the creation of an affirmative
defense in the case of excess emissions
during such events. Because these
events are planned, the EPA believes
that sources should be able to comply
with applicable emission limitations
during these periods of time. To provide
an affirmative defense for violations that
occur during planned and predictable
events for which the source should have
been expected to comply is tantamount
to providing relief from civil penalties
for a planned violation.
EPA believes that adoption of
affirmative defense provisions that
include periods of normal source
operation that are within the control of
the owner or operator of the source,
such as planned startup and shutdown,
would be inconsistent with the
requirements of CAA section 110(a) and
the enforcement structure provided in
CAA sections 113 and 304. Therefore,
the affirmative defense provision for
excess emissions during startup and
shutdown created in section 252:100–9–
8(a) of the 2010 Subchapter 9 provisions
and the associated affirmative defense
criteria for excess emissions during
startup and shutdown as set forth in
section 252:100–9–8(c) of the 2010
Subchapter 9 provisions are
substantially inadequate to meet CAA
requirements for the reasons stated
above. In addition, section 252:100–9–1
of the 2010 Subchapter 9 provisions
includes as a purpose of the 2010
Subchapter 9 provisions the
establishment of affirmative defense
provisions for excess emissions, without
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
limiting the reference to affirmative
defenses to excess emissions during
malfunctions.
Accordingly, EPA is also proposing to
find that section 252:100–9–1 of the
2010 Subchapter 9 provisions is
substantially inadequate to meet the
CAA requirements for the reasons
discussed above. Therefore, all three
provisions identified in Table 3
(sections 252:100–9–1, 252:100–9–8(a),
and 252:100–9–8(c)) are the basis for the
proposed finding of substantial
inadequacy and the proposed SIP call.
Because those subsections are
intertwined with the remainder of the
section 252:100–9–8, the proposed
limited approval and limited
disapproval as well as the proposed
finding of substantial inadequacy and
proposed SIP call encompass all of
252:100–9–8 and 252:100–9–1, as
discussed above.
In addition to providing general
authority for a SIP call, CAA section
110(k)(5) sets forth the process and
timing for such an action. First, the
statute requires the EPA to notify the
state of the final finding of substantial
inadequacy. Second, the statute requires
the EPA to establish ‘‘reasonable
deadlines (not to exceed 18 months after
the date of such notice)’’ for the state to
submit a corrective SIP submission to
eliminate the inadequacy in response to
the SIP call. 42 U.S.C. 7410(k)(5). Third,
the statute requires that any finding of
substantial inadequacy and notice to the
state be made public.
If EPA finalizes the proposed finding
of substantial inadequacy and proposed
SIP call for the 2010 Subchapter 9
provisions identified in Table 3 above,
CAA section 110(k)(5) requires EPA to
establish a SIP submission deadline by
which Oklahoma must make a SIP
submission to rectify the identified
deficiencies. EPA is proposing that if it
promulgates a final finding of
substantial inadequacy and a SIP call for
those 2010 Subchapter 9 provisions
identified in Table 3 above, then EPA
will establish a date no more than 18
months from the date of promulgation of
the final finding for Oklahoma to
respond to the SIP call. For consistency
with EPA’s February 22, 2013 Proposed
SSM SIP Calls, under which section
252:100–9–3 of the currently EPAapproved Oklahoma SIP is already
subject to a proposed SIP call (78 FR
12523), we are here proposing that
Oklahoma revise the identified sections
of the 2010 Subchapter 9 provisions
(section 252:100–9–1 and sections
252:100–9–8(a) and (c)) and submit a
revision of those provisions consistent
with CAA requirements along with the
remainder of section 252:100–9–8,
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
54825
addressing the deficiencies identified in
this proposal to EPA. This submittal
date will be due no later than the earlier
of the statutory maximum of eighteen
months, or the due date by which areas
subject EPA’s February 22, 2013
Proposed SSM SIP Calls are required to
revise and submit their SIPs to EPA.10
Given that affirmative defenses for
excess emissions are not required
elements under the Act, today’s
proposed SIP call will not, by itself,
trigger a sanction clock for Oklahoma.
If the state fails to submit the
corrective SIP revision by the deadline
that the EPA finalizes as part of the SIP
call proposed in this action, then CAA
section 110(k)(1)(B) authorizes EPA to
find that the State has failed to make a
complete submission, in whole or in
part. Once EPA makes such a finding of
failure to submit for a required SIP
submission, CAA section 110(c)(1)
requires EPA to ‘‘promulgate a Federal
implementation plan at any time within
2 years after the [finding] . . . unless
the State corrects the deficiency, and
[the EPA] approves the plan or plan
revision, before [the EPA] promulgates
such [FIP].’’ Thus, if the EPA finalizes
the proposed SIP call in this action and
then finds that Oklahoma failed to
submit a complete SIP revision that
responds to the SIP call, or if EPA
disapproves such SIP revision, then the
EPA will have an obligation under CAA
section 110(c)(1) to promulgate a FIP to
address the identified SIP deficiency, no
later than two years from the date of the
finding or the disapproval, if the
deficiency has not been corrected before
that time.
III. Proposed Action
Today, we are proposing full approval
of the following provisions of Title 252,
Chapter 100, Subchapter 9, Excess
Emission Reporting Requirements as
submitted on July 16, 2010, into the
Oklahoma SIP:
Section 252:100–9–1.1 Applicability,
Section 252:100–9–2 Definitions,
Section 252:100–9–7(a) Immediate
notice,
Section 252:100–9–7(b) Excess emission
event report,
Section 252:100–9–7(c) Ongoing events,
Section 252:100–9–7(d) Alternative
reporting, and
Section 252:100–9–7(e) Certificate of
truth, accuracy and completeness
required.
10 Nothing in today’s rulemaking action for
Oklahoma should be construed or interpreted as a
re-opening of the public comment period for EPA’s
February 22, 2013 (78 FR 12460) Proposed Findings
of Substantial Inadequacy and SIP Calls, or any
issues associated with that separate rulemaking
action.
E:\FR\FM\06SEP1.SGM
06SEP1
54826
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
We are proposing to delete the
following provisions of Title 252,
Chapter 100, Subchapter 9 from the
currently EPA-approved Oklahoma SIP:
Section 252:100–9–1 Purpose,
Section 252:100–9–2 Definitions,
Section 252:100–9–3 General reporting
requirements,
Section 252:100–9–4 Maintenance
procedures,
Section 252:100–9–5 Malfunctions and
releases, and
Section 252:100–9–6 Excesses resulting
from engineering limitations.
We are proposing a concurrent
limited approval and limited
disapproval of the following provisions
of Title 252, Chapter 100, Subchapter 9
Excess Emission Reporting
Requirements as submitted on July 16,
2010, into the Oklahoma SIP:
Section 252:100–9–1 Purpose, and
Section 252:100–9–8 Affirmative
defenses.
We are also proposing a finding of
substantial inadequacy and a SIP call of
the provisions listed above for the
proposed concurrent limited approval
and limited disapproval, and note the
following provisions of Title 252,
Chapter 100, Subchapter 9, Excess
Emission Reporting Requirements as
submitted on July 16, 2010, as the basis
for the proposed finding of substantial
inadequacy and proposed SIP call:
Section 252:100–9–1 Purpose,
Section 252:100–9–8(a) General, and
Section 252:100–9–8(c) Affirmative
defenses for excess emissions during
startup and shutdown.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, 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 act on state
law and ensure that it meets Federal
requirements; such review does not
impose additional requirements beyond
those imposed by state law.
Additionally, under the Clean Air Act,
a finding of substantial inadequacy and
the subsequent obligation for a state to
revise its SIP arise out of CAA sections
110(a) and 110(k)(5). The finding and
state obligation do not directly impose
any new regulatory requirements. In
addition, the state obligation is not
legally enforceable by a court of law.
EPA will review its intended action on
any SIP submittal in response to the
finding in light of applicable statutory
and Executive Order requirements, in
any subsequent rulemaking acting on
such SIP submittal.
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This proposed action is not a
‘‘significant regulatory action’’ subject to
review by the Office of Management and
Budget under Executive Order 12866
(58 FR 51735, October 4, 1993) and is
therefore not subject to review under
Executive Orders 12866 and 13563 (76
FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This proposed action does not impose
an information collection burden under
the provisions of the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.)
because this proposed action under
section 110 of the CAA will not in-andof itself create any new information
collection burdens but simply approves
or disapproves certain State
requirements for inclusion into the SIP.
The proposal to issue the SIP call only
proposes an action that requires the
state to revise its SIP to comply with
existing requirements of the CAA.
Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice-and-comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities.11 This
proposed action will not have a
significant impact on a substantial
number of small entities because SIP
approvals and limited approvals/limited
disapprovals under section 110 of the
Clean Air Act do not create any new
requirements but simply approve
requirements that the State is already
imposing. The proposed SIP call is only
an action that requires the state to revise
its SIP to comply with existing
requirements of the CAA. The EPA’s
action, therefore, would leave to the
state the choice of how to revise the SIP
provision in question to make it
11 Small entities include small businesses, small
organizations, and small governmental
jurisdictions. For purposes of assessing the impacts
of this notice on small entities, small entity is
defined as: (1) A small business that is a small
industrial entity as defined in the U.S. Small
Business Administration (SBA) size standards (see
13 CFR 121.201); (2) a small governmental
jurisdiction that is a government of a city, county,
town, school district, or special district with a
population of less than 50,000; or (3) a small
organization that is any not-for-profit enterprise that
is independently owned and operated and is not
dominant in its field.
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
consistent with CAA requirements.
Therefore, I certify that this action will
not have a significant economic impact
on a substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Moreover, due to the
nature of the Federal-State relationship
under the Clean Air Act, preparation of
flexibility analysis would constitute
Federal inquiry into the economic
reasonableness of State action. The
Clean Air Act forbids EPA to base its
actions concerning SIPs on such
grounds. Union Electric Co., v. U.S.
EPA, 427 U.S. 246, 255–66 (1976); 42
U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538, for State, local, or tribal
governments or the private sector. The
EPA has determined that the limited
approval/limited disapproval proposal
action does not include a Federal
mandate that may result in estimated
costs of $100 million or more to either
State, local, or tribal governments in the
aggregate, or to the private sector. This
action proposes to approve or
disapprove pre-existing requirements
under State or local law, and imposes
no new requirements. The proposed SIP
Call may impose a duty on the state to
meet its existing obligations to revise its
SIP to comply with CAA requirements.
The direct costs of this action, if
finalized, would be those associated
with preparation and submission of a
SIP revision. Examples of such costs
could include development of a state
rule, conducting notice and public
hearing, and other costs incurred in
connection with a SIP submission.
These aggregate costs would be far less
than the $100-million threshold in any
one year for the state. Thus, this
proposed rule is not subject to the
requirements of sections 202 or 205 of
UMRA.
In addition since the only regulatory
requirements of this proposed action
would apply solely to the State of
Oklahoma, this action is not subject to
the requirements of section 203 of
UMRA because it contains no regulatory
requirements that might significantly or
uniquely affect small governments.
E. Executive Order 13132—Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires the EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
E:\FR\FM\06SEP1.SGM
06SEP1
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ This
proposed action does not have
Federalism implications as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). It will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely approves or disapproves certain
State requirements for inclusion into the
SIP and does not alter the relationship
or the distribution of power and
responsibilities established in the CAA.
The proposed SIP call is required by the
CAA because the EPA is proposing to
find that the current SIP of the State is
substantially inadequate to meet
fundamental CAA requirements. In
addition, the effects on the State will
not be substantial because the SIP call
will require the State to submit only
those revisions necessary to address the
SIP deficiencies and applicable CAA
requirements. While this action may
impose direct effects on the State, the
expenditures would not be substantial
because they would be far less than $25
million in the aggregate in any one year.
Thus, Executive Order 13132 does not
apply to this action.
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
E. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). In this action, the EPA is not
addressing any tribal implementation
plans. This action is limited to the State
of Oklahoma, and the SIP provisions
which are the subject of the proposed
actions do not apply to sources of
emissions located in Indian country.
Thus, Executive Order 13175 does not
apply to this action. However, the EPA
invites comment on this proposed rule
from tribal officials.
G. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
The EPA interprets Executive Order
13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This proposed action is not
subject to Executive Order 13045
because it is not an economically
significant regulatory action based on
health or safety risks subject to
Executive Order 13045 (62 FR 19885,
April 23, 1997). This proposed action
under section 110 of the CAA will not
in and of itself create any new
regulations but simply approves or
disapproves certain State requirements
for inclusion into the SIP. The proposed
SIP Call is not subject to EO 13045
because it would not establish an
environmental standard, but instead
would require Oklahoma to revise a
state rule to address requirements of the
CAA. Therefore the proposed action is
not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997).
H. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
energy action’’ as defined in Executive
Order 13211 (66 FR 28355 (May 22,
2001)), because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
This action merely prescribes the EPA’s
action for the State regarding its
obligations for SIP under the CAA.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, section 12(d) (15 U.S.C. 272
note) directs the EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
the EPA to provide Congress, through
OMB, explanations when the Agency
decides not to use available and
applicable voluntary consensus
standards.
The EPA believes that this proposed
action 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 Clean Air Act.
This proposed rulemaking does not
PO 00000
Frm 00039
Fmt 4702
Sfmt 4702
54827
involve technical standards. Therefore,
the EPA is not considering the use of
any voluntary consensus standards.
J. Executive Order 12898—Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (12898 (59 FR
7629, February 16, 1994) establishes
federal executive policy on
environmental justice. Its main
provision directs federal agencies, to the
greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
The EPA lacks the discretionary
authority to address environmental
justice in this proposed action. In
reviewing SIP submissions, the EPA’s
role is to approve or disapprove state
choices, based on the criteria of the
CAA. Accordingly, this action merely
proposes to approve or disapprove
certain State requirements for inclusion
into the SIP under section 110 of the
CAA and will not in and of itself create
any new requirements. The proposed
action increases the level of
environmental protection for all affected
populations without having any
disproportionately high and adverse
human health or environmental effects
on any population, including any
minority or low-income population. The
proposed action is intended to ensure
that all communities and populations
across the State, including minority,
low-income and indigenous populations
overburdened by pollution, receive the
full human health and environmental
protection provided by the CAA. This
proposed action concerns the State’s
obligations regarding the treatment they
give, in rules included in its SIP under
the CAA, to excess emissions during
startup, shutdown, and malfunctions.
This proposed action would require
Oklahoma to bring its treatment of these
emissions into line with CAA
requirements, which would lead to
sources having greater incentives to
control emissions during such events.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Hydrocarbons,
Incorporation by reference,
Intergovernmental relations, Reporting
and recordkeeping requirements, State
implementation plan, Volatile organic
compounds.
E:\FR\FM\06SEP1.SGM
06SEP1
54828
Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules
• Mail: Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
[FR Doc. 2013–21777 Filed 9–5–13; 8:45 am]
80202–1129.
BILLING CODE 6560–50–P
• Hand Delivery: Director, Air
Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P–
ENVIRONMENTAL PROTECTION
AR, 1595 Wynkoop Street, Denver,
AGENCY
Colorado 80202–1129. Such deliveries
40 CFR Part 52
are only accepted Monday through
Friday, 8:00 a.m. to 4:30 p.m., excluding
[EPA–R08–OAR–2011–0728; FRL–9900–65–
federal holidays. Special arrangements
Region 8]
should be made for deliveries of boxed
information.
Promulgation of State Implementation
Instructions: Direct your comments to
Plan Revisions; Infrastructure
Docket ID No. EPA–R08–OAR–2011–
Requirements for the 1997 and 2006
0728. EPA’s policy is that all comments
PM2.5 National Ambient Air Quality
received will be included in the public
Standards; Prevention of Significant
docket without change and may be
Deterioration; Wyoming
made available online at
AGENCY: Environmental Protection
www.regulations.gov, including any
Agency (EPA).
personal information provided, unless
ACTION: Proposed rule.
the comment includes information
claimed to be Confidential Business
SUMMARY: EPA is proposing to partially
Information (CBI) or other information
approve and partially disapprove State
whose disclosure is restricted by statute.
Implementation Plan (SIP) submissions
Do not submit information that you
from the State of Wyoming to
consider to be CBI or otherwise
demonstrate that the SIP meets the
protected through www.regulations.gov
infrastructure requirements of the Clean
or email. The www.regulations.gov Web
Air Act (CAA) for the National Ambient
site is an ‘‘anonymous access’’ system,
Air Quality Standards (NAAQS)
which means EPA will not know your
promulgated for particulate matter less
identity or contact information unless
than or equal to 2.5 micrometers (mm) in
you provide it in the body of your
diameter (PM2.5) on July 18, 1997 and on
comment. If you send an email
October 17, 2006. The CAA requires that
comment directly to EPA, without going
each state, after a new or revised
through www.regulations.gov your email
NAAQS is promulgated, review their
address will be automatically captured
SIP to ensure that they meet the
and included as part of the comment
requirements of the ‘‘infrastructure
that is placed in the public docket and
elements’’ necessary to implement the
made available on the Internet. If you
new or revised NAAQS. Wyoming
submit an electronic comment, EPA
provided infrastructure submissions for recommends that you include your
the 1997 and 2006 PM2.5 NAAQS on
name and other contact information in
March 26, 2008 and August 19, 2011,
the body of your comment and with any
respectively. EPA does not propose to
disk or CD–ROM you submit. If EPA
act on certain portions of the
cannot read your comment due to
submissions for the 2006 PM2.5 NAAQS technical difficulties and cannot contact
that are intended to meet requirements
you for clarification, EPA may not be
related to interstate transport of air
able to consider your comment.
pollution. EPA will act on the
Electronic files should avoid the use of
remainder of the submissions in a
special characters, any form of
separate action.
encryption, and be free of any defects or
DATES: Written comments must be
viruses. For additional information
received on or before September 27,
about EPA’s public docket visit the EPA
2013.
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
ADDRESSES: Submit your comments,
For additional instructions on
identified by Docket ID No. EPA–R08–
submitting comments, go to section I,
OAR–2011–0728, by one of the
General Information, of the
following methods:
• https://www.regulations.gov. Follow SUPPLEMENTARY INFORMATION section of
this document.
the on-line instructions for submitting
Docket: All documents in the docket
comments.
are listed in the www.regulations.gov
• Email: ayala.kathy@epa.gov
• Fax: (303) 312–6064 (please alert
index. Although listed in the index,
the individual listed in the FOR FURTHER some information is not publicly
available, e.g., CBI or other information
INFORMATION CONTACT if you are faxing
whose disclosure is restricted by statute.
comments).
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
Dated: August 28, 2013.
Ron Curry,
Regional Administrator, Region 6.
VerDate Mar<15>2010
14:34 Sep 05, 2013
Jkt 229001
PO 00000
Frm 00040
Fmt 4702
Sfmt 4702
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kathy Ayala, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 303–312–6142,
ayala.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are
giving meaning to certain words or initials as
follows:
(i) The words or initials Act or CAA mean
or refer to the Clean Air Act, unless the
context indicates otherwise.
(ii) The initials CBI mean or refer to
confidential business information.
(iii) The words EPA, we, us or our mean
or refer to the United States Environmental
Protection Agency.
(iv) The initials FIP mean or refer to a
Federal Implementation Plan.
(v) The initials GHG mean or refer to
greenhouse gases.
(vi) The initials NAAQS mean or refer to
national ambient air quality standards.
(vii) The initials NOX mean or refer to
nitrogen oxides.
(viii) The initials NSR mean or refer to new
source review.
(ix) The initials PM mean or refer to
particulate matter.
(x) The initials PM2.5 mean or refer to
particulate matter with an aerodynamic
diameter of less than 2.5 micrometers (fine
particulate matter).
(xi) The initials ppm mean or refer to parts
per million.
(xii) The initials PSD mean or refer to
Prevention of Significant Deterioration.
(xiii) The initials SIP mean or refer to State
Implementation Plan.
(xiv) The initials SSM mean or refer to
start-up, shutdown, or malfunction.
(xv) The initials WAQSR mean or refer to
the Wyoming Air Quality Standards and
Regulation.
Table of Contents
I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required
under sections 110(a)(1) and (2)?
E:\FR\FM\06SEP1.SGM
06SEP1
]]>Agencies
[Federal Register Volume 78, Number 173 (Friday, September 6, 2013)]
[Proposed Rules]
[Pages 54816-54828]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21777]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0652; FRL-9900-73-Region6]
Approval and Promulgation of Implementation Plans; Oklahoma;
Revisions to Excess Emissions Requirements; Finding of Substantial
Inadequacy: and Call for Oklahoma State Implementation Plan Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is proposing three actions concerning revisions to the
Oklahoma State Implementation Plan (SIP) submitted by the State of
Oklahoma on July 16, 2010 (the July 16, 2010 SIP submittal). These
actions address revisions to the Oklahoma Administrative Code (OAC),
Title 252, Chapter 100, Subchapter 9--Excess Emission Reporting
Requirements (Subchapter 9). In the first action, we are proposing
approval of certain provisions of the July 16, 2010 SIP submittal which
are consistent with the Clean Air Act (CAA or Act). In the second
action, we are proposing a limited approval and limited disapproval of
certain other provisions of the July 16, 2010 SIP submittal which will
have the overall effect of strengthening the Oklahoma SIP, but a
portion of which are inconsistent with the requirements of the CAA. In
the third action, we are proposing a finding of substantial inadequacy
and proposing a SIP call with a proposed submittal date for certain
provisions of the July 16, 2010 SIP submittal associated with the
proposed limited approval and limited disapproval found to be
inconsistent with CAA requirements, as set forth in the second action.
If finalized, the SIP call associated with the proposed finding of
substantial inadequacy will not, by itself, trigger a sanction clock
for Oklahoma. This rulemaking is being taken in accordance with section
110 of the Act.
DATES: Comments must be received on or before October 7, 2013.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2010-0652, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the on-line instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: https://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please
also send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8:00 a.m. and 4:00 p.m. weekdays
except for legal holidays. Special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2010-0652. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any
[[Page 54817]]
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information the disclosure of which is restricted by statute. Do not
submit information through www.regulations.gov or email that you
consider to be CBI or otherwise protected from disclosure. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733.
The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
Oklahoma Department of Environmental Quality (ODEQ), Air Quality
Division, 707 North Robinson Street, Oklahoma City, Oklahoma 73101.
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax
(214) 665-7263, email address Shar.Alan@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to EPA.
Outline
I. Summary and Background
A. What actions are we proposing?
B. What documents did we use in our evaluation of the July 16,
2010 SIP submittal?
C. What is the background for this proposed rulemaking?
II. Evaluation
A. Introduction
B. Why are we proposing approval of portions of the July 16,
2010 SIP submittal?
C. Why are we proposing a limited approval and limited
disapproval of portions of the July 16, 2010 SIP submittal?
D. Why are we proposing a finding of substantial inadequacy and
a SIP call?
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Summary and Background
A. What actions are we proposing?
We are proposing three related actions regarding the July 16, 2010
SIP submittal from the State of Oklahoma. This SIP submittal contains
revisions to Oklahoma's excess emission rules, found in OAC, Title 252,
Chapter 100, Subchapter 9 (Subchapter 9). More specifically, the July
16, 2010 SIP submittal: (1) Withdraws revisions to Subchapter 9
submitted to EPA on February 14, 2002; and (2) requests EPA's approval
of revisions to Subchapter 9 made by the State in 2010 (2010 Subchapter
9 provisions). EPA approval of the 2010 Subchapter 9 provisions would
replace the Subchapter 9 provisions promulgated by the State in 1994,
and last approved in 1999 by EPA as part of the current Oklahoma SIP.
The 2010 Subchapter 9 provisions were intended by the state to meet the
requirements of the CAA with respect SIP provisions concerning excess
emissions during startup, shutdown, and malfunction. Oklahoma developed
the July 16, 2010 SIP submittal based on EPA's guidance recommendations
in place at the time of submission. As a part of the July 16, 2010 SIP
submittal, the State took several important steps to revise the
existing SIP to make it consistent with CAA requirements, including:
(1) Improvements to SIP provisions pertaining to excess emissions
reporting requirements; (2) elimination of prior SIP provisions that
created an exemption, exercised through director discretion, for excess
emission events which was not consistent with CAA requirements; and (3)
creation of affirmative defense provisions for excess emissions for
qualifying sources in lieu of previously impermissible exemptions for
violations of SIP emission limitations during such events. The EPA
appreciates the efforts of ODEQ to improve the enforceability of their
rules with respect to excess emissions. The EPA's proposed actions on
ODEQ's 2010 Subchapter 9 provisions do not extend to sources of air
emissions or activities located in Indian country, as defined at 18
U.S.C. Sec. 1151.\1\ We are proposing three related actions in this
rulemaking.
---------------------------------------------------------------------------
\1\ Oklahoma's July 16, 2010 SIP submittal does not include an
express demonstration of authority over emission sources or
activities in Indian country. Therefore, our proposed approval and
limited approval/disapproval of the 2010 Subchapter 9 provisions
does not extend to emission sources or activities located in Indian
country. This is consistent with the CAA requirement that we approve
state and tribal programs only where there is a demonstration of
adequate authority. See CAA sections 110(a)(2)(E) and 110(o).
---------------------------------------------------------------------------
First Action:
In the first action, we are proposing approval of the following
sections of the 2010 Subchapter 9 provisions as a revision to the
Oklahoma SIP: (1) Section 252:100-9-1.1 Applicability; (2) section
252:100-9-2 Definitions; and (3) sections 252:100-9-7(a) through
252:100-9-7(e).\2\ As discussed more fully below, these provisions
generally concern excess emission reporting requirements which improve
the State's ability to review, analyze, and act in response to excess
emission reports so that the air quality impacts associated with such
emissions are minimized. These revised provisions thus allow better
assessment of compliance with applicable SIP emission limitations and
enforcement in the event that is necessary. EPA notes that these
sections operate independently from the affirmative defense
requirements of section 252:100-9-8, the subject of today's second
proposed action. Table 1 below identifies sections of the 2010
[[Page 54818]]
Subchapter 9 provisions which EPA is proposing for approval into the
Oklahoma SIP.
---------------------------------------------------------------------------
\2\ Throughout this proposed rulemaking, reference to sections
of the 2010 Subchapter 9 provisions will be those sections of the
Oklahoma Administrative Code (OAC), Title 252, Chapter 100,
Subchapter 9, as submitted to EPA on July 16, 2010, for approval as
a revision to the Oklahoma SIP.
Table 1--Sections of the 2010 Subchapter 9 Provisions Proposed for
Approval
------------------------------------------------------------------------
Section of the 2010 Subchapter
9 provisions Title Information
------------------------------------------------------------------------
252:100-9-1.1................. Applicability........ Propose approval.
252:100-9-2................... Definitions.......... Propose approval.
252:100-9-7(a)................ Immediate notice..... Propose approval.
252:100-9-7(b)................ Excess emission event Propose approval.
report.
252:100-9-7(c)................ Ongoing events....... Propose approval.
252:100-9-7(d)................ Alternative reporting Propose approval.
252:100-9-7(e)................ Certificate of truth, Propose approval.
accuracy and
completeness
required.
------------------------------------------------------------------------
Second Action:
In the second action, we are proposing a limited approval and
limited disapproval of the 2010 Subchapter 9 provisions which are not
the subject of EPA's first action discussed above. Specifically, we are
proposing a concurrent limited approval and limited disapproval of
section 252:100-9-1. Purpose, and the entire section 252:100-9-8.
Affirmative defenses, as a revision to the Oklahoma SIP. Table 2 below
identifies sections of the 2010 Subchapter 9 provisions proposed for
concurrent limited approval and limited disapproval.
Table 2--Sections of the 2010 Subchapter 9 Provisions Proposed for
Limited Approval and Limited Disapproval
------------------------------------------------------------------------
Section of the 2010 Subchapter
9 provisions Title Information
------------------------------------------------------------------------
252:100-9-1................... Purpose.............. Propose limited
approval and
limited
disapproval.
252:100-9-8(a)................ Affirmative defenses-- Propose limited
General. approval and
limited
disapproval.
252:100-9-8(b)................ Affirmative defenses Propose limited
for excess emissions approval and
during malfunctions. limited
disapproval.
252:100-9-8(c)................ Affirmative defenses Propose limited
for excess emissions approval and
during startup and limited
shutdown. disapproval.
252:100-9-8(d)................ Affirmative defenses Propose limited
prohibited. approval and
limited
disapproval.
252:100-9-8(e)................ Affirmative defense Propose limited
determination. approval and
limited
disapproval.
------------------------------------------------------------------------
The EPA has utilized the limited approval approach numerous times
in SIP actions across the nation over the last twenty years.\3\ As
discussed in section II ``Evaluation'' below, EPA believes that
approval of sections 252:100-9-1 and 252:100-9-8 of the 2010 Subchapter
9 provisions will strengthen the Oklahoma SIP and represent an overall
improvement in the regulation of excess emissions as compared to the
excess emissions provisions found in the Subchapter 9 provisions in the
currently EPA-approved Oklahoma SIP (last approved by EPA in 1999);
however, there are certain portions in the 2010 Subchapter 9 provisions
(e.g., the creation of an affirmative defense for excess emissions
resulting from startup and shutdown activities) which are inconsistent
with identified CAA requirements. Because these revisions are an
improvement over the currently approved SIP, but are not fully
consistent with the CAA, EPA's approval must be limited and we are
concurrently proposing a limited disapproval. Finally, to ensure that
the inconsistencies in these specific provisions with the CAA are
corrected, EPA's third action below is a proposed finding of
substantial inadequacy and a proposed SIP call to address those
provisions of the proposed limited approval and limited disapproval
action which are inconsistent with CAA requirements applicable to SIP
revisions. If EPA finalizes the proposed limited approval and limited
disapproval of sections 252:100-9-1 and 252:100-9-8 of the 2010
Subchapter 9 provisions, then EPA will also finalize the proposed
finding of substantial inadequacy and proposed SIP call with respect to
these provisions, as well.
---------------------------------------------------------------------------
\3\ See, e.g., Approval and Promulgation of Implementation
Plans; State of Georgia; 77 FR 38503 (June 28, 2012); and Limited
Approval and Promulgation of Implementation Plans; Texas; 70 FR
50205 (August 26, 2005).
---------------------------------------------------------------------------
Third Action:
As stated above, EPA's third action is a proposed finding of
substantial inadequacy and proposed SIP call which, if finalized
together with EPA's second action concerning the limited approval and
limited disapproval, would require Oklahoma to submit revisions to
those 2010 Subchapter 9 provisions in the limited approval and limited
disapproval found to be inconsistent with the identified CAA
requirements, or otherwise submit revisions to its excess emission
provisions that comport with the requirements of the CAA. For a
discussion regarding the timeframe for the adoption and submission of
proposed revisions to the Oklahoma SIP provisions concerning excess
emissions found in the 2010 Subchapter 9 provisions, see section II(D)
below.
[[Page 54819]]
As all of the sections of the 2010 Subchapter 9 provisions listed
in Table 2 above are interrelated and not separable from one another
other, as discussed in Section II(C) below, they are the subject of the
today's proposed finding of substantial inadequacy and proposed SIP
call. However, Table 3 below identifies the specific sections of the
2010 Subchapter 9 provisions which are inconsistent with the
requirements of the CAA and form the basis for the proposed finding of
substantial inadequacy and the proposed SIP call.
Table 3--Sections of the 2010 Subchapter 9 Provisions That Form the
Basis for the Proposed Finding of Substantial Inadequacy and Proposed
SIP Call
------------------------------------------------------------------------
Section of the 2010 Subchapter
9 provisions Title Information
------------------------------------------------------------------------
252:100-9-1................... Purpose.............. Provisions not
limited to
excess emissions
during unplanned
events.
252:100-9-8(a)................ Affirmative defenses-- Provisions also
General. create an
affirmative
defense for
planned events.
252:100-9-8(c)................ Affirmative defenses Provisions
for excess emissions establish
during startup and criteria for
shutdown. affirmative
defense for
planned events.
------------------------------------------------------------------------
If finalized, the overall effect of the three actions proposed by
EPA today will be the replacement of the existing Subchapter 9
provisions of the Oklahoma SIP (i.e., those provisions approved by EPA
on November 3, 1999, (64 FR 59629 and codified at 40 CFR
52.1920(c)(48)), with the revisions contained in the specific 2010
Subchapter 9 provisions proposed for approval in today's first action
and the specific 2010 Subchapter 9 provisions proposed for a limited
approval and limited disapproval in today's second action. Thus, if
today's proposed actions are finalized, the current Subchapter 9
provisions approved in 1999 into the Oklahoma SIP will be replaced by
the 2010 Subchapter 9 provisions, and the entire 2010 Subchapter 9
provisions will become part of the Oklahoma SIP. It is important to
note that if finalized, certain portions of the 2010 Subchapter 9
provisions pertaining to affirmative defenses will also be the subject
of a finding of substantial inadequacy and a SIP call, as reflected by
EPA's third action proposed today, and discussed in Section II(D)
below.
Also, section 252:100-9-3 of the Subchapter 9 provisions in the
current EPA-approved Oklahoma SIP is presently a subject of EPA's
proposed Findings of Substantial Inadequacy and SIP Calls, 78 FR 12460
(February 22, 2013) (EPA's February 22, 2013 Proposed Startup,
Shutdown, and Malfunction (SSM) SIP Calls). If today's actions are
finalized, then the Subchapter 9 provisions in the currently EPA-
approved Oklahoma SIP (including section 252:100-9-3 of those
Subchapter 9 provisions) will no longer be part of the Oklahoma SIP.
Consequently, if EPA finalizes approval of the 2010 Subchapter 9
provisions, any outstanding SIP call related to section 252:100:9-3 of
the currently EPA-approved SIP, such as the one proposed under EPA's
February 22, 2013. Proposed SSM SIP Calls, will be moot, because
section 252:100-9-3 of currently EPA-approved Oklahoma SIP will no
longer be part of the federally-approved Oklahoma SIP. Final approval
of the 2010 Subchapter 9 provisions will resolve the specific SIP
deficiencies that EPA identified in the EPA's February 22, 2013
Proposed SSM SIP Calls.
As discussed below, EPA's proposed finding of substantial
inadequacy and proposed SIP call (with respect to today's second action
concerning the limited approval and limited disapproval of certain
provisions of the 2010 Subchapter 9 provisions) relates to specific
inseparable sections (or inseparable words within a section) of the
2010 Subchapter 9 provisions. More specifically, EPA is proposing to
find that the inclusion of an affirmative defense for excess emissions
during startup and shutdown, such as the one contained in sections
252:100-9-8(a) and (c) of the 2010 Subchapter 9 provisions, is
inconsistent with the requirements of CAA section 110. Further, it is
contrary to the fundamental enforcement structure provided in CAA
sections 113 and 304, thereby constituting a substantial inadequacy,
which renders those SIP provisions impermissible. See Section II
``Evaluation'' below and also EPA's February 22, 2013 Proposed SSM SIP
Calls, a copy of which is included in the docket for this rulemaking,
for a more detailed discussion of the affirmative defense for planned
activities, such as startup and shutdown.
B. What documents did we use in our evaluation of the July 16, 2010 SIP
submittal?
EPA's interpretation of the Act as it applies to SIP provisions
that address excess emissions occurring during periods of startup,
shutdown, and malfunction is set forth in a series of guidance
documents. These guidance documents include: (1) A memorandum dated
September 28, 1982, from Kathleen M. Bennett, Assistant Administrator
for Air, Noise, and Radiation, entitled ``Policy on Excess Emissions
During Startup, Shutdown, Maintenance, and Malfunctions'' (1982
Policy); (2) a memorandum, dated February 15, 1983, from Kathleen M.
Bennett, Assistant Administrator for Air, Noise, and Radiation (1983
Policy); (3) a memorandum dated September 20, 1999, from Steven A.
Herman, Assistant Administrator for Enforcement and Compliance
Assurance and Robert Perciasepe, Assistant Administrator for Air and
Radiation, entitled ``State Implementation Plans: Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown'' (1999
Policy); and (4) a memorandum dated December 5, 2001 from Eric
Schaeffer, Director, Office of Regulatory Enforcement, Office of
Enforcement and Compliance Assurance and John S. Seitz, Director,
Office of Air Quality Planning and Standards, Office of Air and
Radiation (2001 Policy).
EPA's interpretation of the CAA with respect to SIP provisions that
address excess emissions during SSM events has been applied in
rulemaking, including, but not limited to: (1) EPA's final rule for
Utah's sulfur dioxide control strategy (Kennecott Copper), April 27,
1977 (42 FR 21472); (2) EPA's final rule for Idaho's sulfur dioxide
control strategy, November 8, 1977 (42 FR 58171); (3) EPA's ``Finding
of Substantial Inadequacy of Implementation Plan: Call for Utah State
Implementation Plan Revision,'' April 18, 2011 (76 FR 21639).
EPA has recently issued a proposal in response to a petition for
rulemaking concerning CAA requirement for SIP provisions that address
excess emissions, reiterating EPA's
[[Page 54820]]
interpretation of the CAA with respect to such provisions. See EPA's
February 22, 2013 Proposed SSM SIP Calls--Docket No. EPA-HQ-OAR-2012-
0322; and EPA's February 4, 2013, Statutory, Regulatory, and Policy
Context Memorandum for the February 22, 2013 Proposed SSM SIP Calls. In
this recent action, EPA has specifically addressed the requirements of
the CAA with respect to SIP provisions that provide an affirmative
defense for violations of emission limitations due to excess emissions
during SSM events.
In addition, EPA evaluation responsibilities associated with the
review of the July 16, 2010 SIP submittal draw upon the concepts of
``separability'' as expressed in Bethlehem Steel Corp. v. Gorsuch, 742
F. 2d 1028 (7th Cir. 1984) and the EPA memorandum, dated July 9, 1992,
from John Calcagni, Director, Air Quality Management Division, entitled
``Processing of State Implementation Plan (SIP) Submittals'' (1992
Calcagni Memo). A copy of each relevant document is available in the
docket for this rulemaking.
C. What is the background for this proposed rulemaking?
On January 25, 1984 (49 FR 3084), EPA approved Regulation 1.5,
Reports Required: Excess Emissions During Startup, Shutdown and
Malfunction of Equipment, into the Oklahoma SIP. This revision became
effective on February 24, 1984. Later, Regulation 1.5 was recodified
and renumbered by ODEQ (as Subchapter 9 Excess Emission and Malfunction
Reporting Requirements) and approved by EPA as an administrative
revision to the Oklahoma SIP on November 3, 1999 (64 FR 59629) (1994
Subchapter 9 provisions). As of today's proposed action, the 1994
Subchapter 9 provisions remain part of the EPA-approved Oklahoma SIP.
See part 1 of the Technical Support Document (TSD) prepared in
conjunction with this proposed rulemaking.
On February 14, 2002, ODEQ submitted to EPA a revised version of
Subchapter 9 that was not acted upon in the approval action of the Air
Quality Implementation Plans; Oklahoma; Recodification of Regulations,
published on December 29, 2008 at 73 FR 79400 (also known as the
Oklahoma's Big SIP). See part 2 of the TSD. The Subchapter 9 portion of
the February 14, 2002 submittal was subsequently withdrawn and replaced
by ODEQ with the new Subchapter 9 provisions, as part of the July 16,
2010 SIP submittal which is the subject of today's proposed actions
(2010 Subchapter 9 provisions). See part 3 of TSD.
II. Evaluation
A. Introduction
Under the principle of cooperative federalism, both states and EPA
have authorities and responsibilities under the CAA with respect to
SIPs. Pursuant to section 109 of the CAA, 42 USC Sec. 7409, EPA
promulgates National Ambient Air Quality Standards (NAAQS) for criteria
pollutants the attainment and maintenance of which are considered
requisite to protect the public health and welfare. Under CAA section
107(a), each state has the primary responsibility for assuring that the
NAAQS are attained and maintained throughout the state. Under section
110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1), each state is required to
develop and submit to EPA for approval a plan which provides for the
implementation, maintenance, and enforcement of the NAAQS; such plans
are called state implementation plans or SIPs. Section 110(a)(2) of the
CAA, 42 U.S.C. 7410(a)(2), requires each SIP to meet the requirements
listed in section 110(a)(2)(A) through (M). Under CAA section
110(a)(2)(H)(ii), states have a specific duty to revise their SIPs
whenever EPA finds that the SIP is substantially inadequate to comply
with requirements established under the Act.
In the development of its SIP, a state has broad authority to
develop the mix of emission limitations it deems best suited for its
particular situation, but the exercise of this discretion is not
unbridled. The states have the primary responsibility to develop SIPs
that meet applicable statutory and regulatory requirements for
attaining, maintaining, and enforcing the NAAQS. Under section 110(k)
of the CAA, however, EPA is required to determine whether or not a SIP
submission in fact meets all applicable requirements of the Act. EPA is
authorized to approve, disapprove, partially approve and partially
disapprove, or conditionally approve a given SIP submission, as
appropriate. When a SIP submission does not meet the applicable
requirements of the CAA, EPA is obligated to disapprove it, in whole or
in part, as appropriate. In addition, when EPA finds a state's existing
SIP is substantially inadequate to attain or maintain a NAAQS or
otherwise to comply with any other CAA requirement, EPA is authorized
under section 110(k)(5) to require the state to revise its SIP as
necessary to correct such inadequacies.
Sections 110(l) and 193 of the CAA impose additional requirements
upon EPA when reviewing a state's proposed revision to its SIP. Section
110(l) of the CAA, 42 U.S.C. 7410(l), provides that EPA may not approve
a SIP revision if ``the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable requirement of this chapter.'' In addition,
section 193 of the CAA prohibits SIP revisions that would affect
control measures in effect prior to the 1990 amendments to the CAA in
any area that is designated nonattainment for any NAAQS, unless the
modification insures equivalent to greater emission reductions of such
air pollutant. A more detailed discussion of the SIP requirements that
may be relevant to this rulemaking are included in the docket,
including section VIII ``Legal Authority, Process, and Timing for SIP
Calls'' of EPA's February 22, 2013 Proposed SSM SIP Calls (78 FR
12483), and the associated legal memorandum in the docket for that
rulemaking.
The statutory framework summary presented above underlies EPA's
evaluation of SIP submissions as they relate to excess emissions. The
EPA has a longstanding interpretation of the CAA with respect to the
treatment of excess emissions during periods of startup, shutdown or
malfunctions in SIPs. See section I(B) above. Central to EPA's
interpretation is the definition of ``emission limitation'' and
``emission standard'' contained in CAA section 302(k), 42 U.S.C.
7602(k), which are defined as limitations that must be met on a
continuous basis. Under section 110(a)(2)(A) of the Act, 42 U.S.C.
7410(a)(2)(A), each SIP must include enforceable emission limitations
and other control measures as may be necessary or appropriate to meet
the applicable requirements of the Act. In addition, under CAA section
110(a)(2)(C), 42 U.S.C. 7410(a)(2)(C), each SIP must include a program
to provide for the enforcement of the measures described in CAA section
110(a)(2)(A) and provide for the regulation of sources as necessary to
ensure the attainment and maintenance of the NAAQS and protection of
Prevention of Significant Deterioration (PSD) increments.
While the CAA requires that emission limitations in a SIP must be
met on a ``continuous'' basis, compliance with such limitations 100% of
the time may be practically and technologically impossible. Case law
holding that technology-based standards should account for the
practical realities of technology support EPA's view that an
enforcement program under a SIP that incorporates some level of
flexibility is
[[Page 54821]]
reasonable and consistent with the overall intent of the CAA.\4\ While
EPA views all excess emissions as violations of emission limitations or
emission standards, we recognize that, in certain situations,
imposition of a civil penalty for sudden and unavoidable malfunctions
caused by circumstances entirely beyond the control of the owner or
operator may not be appropriate.
---------------------------------------------------------------------------
\4\ See, e.g., Essex Chemical v. Ruckelshaus, 486 F.2d 427, 433
(D.C. Cir. 1973); and Portland Cement Association v. Ruckelshaus,
486 F.2d 375 (D.C. Cir. 1973)
---------------------------------------------------------------------------
In addressing excess emissions due to sudden and unavoidable
malfunctions, the EPA has provided guidance on three approaches states
may use: (1) Traditional enforcement discretion; (2) SIP provisions
that address the exercise of enforcement discretion by state personnel;
and (3) SIP provisions that provide a narrowly tailored affirmative
defense to civil penalties. Under the first approach, the State (or
another entity, such as EPA, seeking to enforce a violation of the SIP)
may consider the facts and circumstances surrounding the event in
determining whether to pursue enforcement. Under the second approach,
states may elect to create SIP provisions that provide parameters for
the exercise of enforcement discretion by state personnel, so long as
they do not affect enforcement by EPA or citizens. Under the third
approach, states may elect to create SIP provisions that establish an
affirmative defense that may be raised by the defendant in the context
of an enforcement proceeding for civil penalties (not injunctive
relief), and for which the defendant has the burden to prove that
certain criteria have been met. See page 2 of the Attachment to the
1999 Policy; see also EPA's February 22, 2013 Proposed SSM SIP Calls,
at 78 FR 12478.
Most relevant to this action, EPA interprets the CAA to allow SIP
provisions that provide an affirmative defense, so long as they are
appropriately drawn. EPA guidance recommends criteria that it considers
necessary to assure that the affirmative defense is consistent with CAA
requirements for SIP provisions. The EPA believes that narrowly-
tailored affirmative defense provisions can supply flexibility both to
ensure that emission limitations are ``continuous'' as required by CAA
section 302(k) because any violations remain subject to a claim for
injunctive relief, and to provide limited relief in actions for
penalties for malfunctions that are beyond the control of the owner
where the owner has taken necessary steps to minimize the likelihood
and extent of any such violation. Several courts have agreed with this
approach.\5\ Neither the enforcement discretion nor the affirmative
defense approaches may waive reporting requirements for the violation.
States are not required to employ an affirmative defense approach, but
if they choose to do so, EPA will evaluate the state's SIP provisions
for consistency with the Act as interpreted by our policy and guidance,
including those documents listed in section I.B above. In the 2010
Subchapter 9 provisions of its July 16, 2010 SIP submittal, ODEQ
adopted the affirmative defense approach to address excess emissions
events.
---------------------------------------------------------------------------
\5\ See, Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir.
2013), Cert. pending (upholding the EPA's approval of an affirmative
defense applicable during malfunctions in a SIP submission as a
permissible interpretation of the statute under Chevron step 2
analysis); Mont. Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 (9th
Cir. 2012); and Ariz. Public Service Co. v. EPA, 562 F.3d 1116, 1130
(9th Cir. 2009).
---------------------------------------------------------------------------
EPA acknowledges that ODEQ developed these affirmative defenses in
the July 16, 2010 SIP submittal, consistent with EPA guidance at that
time. However, EPA has reexamined its interpretation of the CAA with
respect to affirmative defenses and accordingly believes that such
affirmative defenses are only appropriate in the case of unplanned
events like malfunctions, not in the case of planned events such as
startup and shutdown for which sources should be expected to comply
with applicable SIP emission limitations. Under CAA section 110(k) and
section 110(l), EPA is obligated to determine whether SIP submissions
in fact meet CAA requirements and our interpretation of the Act at the
time EPA takes action on the SIP submission.
B. Why are we proposing approval of portions of the July 16, 2010 SIP
submittal?
Consistent with provisions of section 110(k) and section 110(l) of
the CAA, 42 U.S.C. 7410(k) and 7410(l), EPA believes that there are
portions of the 2010 Subchapter 9 provisions which are consistent with
the requirements of the CAA for SIPs and would not interfere with any
applicable requirement concerning attainment and reasonable further
progress or any other applicable requirement of the CAA. These
provisions are identified in Table 1 above and include: (1) Section
252:100-9-1.1 Applicability, which provides that owners and operators
of air contaminant sources are subject to the requirements of this
subchapter; (2) section 252:100-9-2, which defines terms that are
frequently used in the Subchapter 9 provisions; and (3) sections
252:100-9-7(a) through (e) which address the notification, reporting
requirements, and certificate of accuracy of the information concerning
excess emissions events. Together these provisions require owners and
operators to notify and report excess emissions to ODEQ within
specified timeframes.
The proper notification and reporting of excess emission events and
the relevant information corresponding to those events will enable ODEQ
to review, evaluate, and utilize the information submitted as a tool in
its air quality planning/management efforts and assist its efforts to
provide for attainment and maintenance of the NAAQS and other
applicable requirements of the Act. These applicability, definitions,
and notification requirements in the 2010 Subchapter 9 provisions are
independent from the affirmative defense requirements set forth in
section 252:100-9-8 of the 2010 Subchapter 9 provisions. In other
words, approval of these provisions (section 252:100-9-1.1, section
252:100-9-2, and sections 252:100-9-7(a) through (e)) into the Oklahoma
SIP is consistent with, and will not render other sections of the 2010
Subchapter 9 provisions more stringent than what the State intended or
anticipated when ODEQ adopted the 2010 Subchapter 9 provisions.
Therefore, EPA believes that the proposed approval of these provisions
are separable from the remainder of the 2010 Subchapter 9 provisions
submitted as part of the July 16, 2010 SIP submittal. In particular, we
believe that EPA's approval of these specific provisions will not
result in sections 252:100-9-1.1, 252:100-9-2, and 252:100-9-7(a)
through (e), as reflected in the first action, being more stringent
than ODEQ anticipated or intended. See Bethlehem Steel Corp. v.
Gorsuch, 742 F.2d 1028, 1036-37 (7th Cir. 1984); see also 1992 Calcagni
Memo.
Furthermore, proposed approval of the specific provisions covered
by the first action would enhance the ability of the State, EPA, and
citizens to address excess emissions-related activities consistent with
CAA sections 110, 113, 302(k) and 304, while simultaneously eliminating
the discretionary exemptions from compliance with otherwise applicable
emission limitations under the Subchapter 9 provisions in the currently
EPA-approved Oklahoma SIP. Removal of the existing provisions that
allow exemptions for excess emissions during SSM events via the
exercise of director's discretion brings the Oklahoma SIP into
[[Page 54822]]
compliance with CAA requirements with respect to this issue.
As explained in more detail in EPA's February 22, 2013 Proposed SSM
SIP Calls (78 FR 12460), such director's discretion provisions are
inconsistent with fundamental CAA requirements for SIP provisions.
Therefore, our proposed approval of those sections of the 2010
Subchapter 9 provisions covered by this first proposed action improves
the SIP for Oklahoma and comports with the standards governing SIP
revisions as set forth in section 110(k) and section 110(l) of the Act.
EPA believes that the specific sections of the 2010 Subchapter 9
provisions, identified in the first action of this document, meet the
statutory requirements of the Act for SIP provisions and assist in
providing for attainment and maintenance of the NAAQS and protection of
PSD increments. We are therefore proposing the approval of sections
252:100-9-1.1, 252:100-9-2, and 252:100-9-7(a) through (e) of the 2010
Subchapter 9 provisions as a revision to the SIP for Oklahoma.
C. Why are we proposing a limited approval and limited disapproval of
portions of the July 16, 2010 SIP submittal?
In some cases, a SIP submittal may contain certain provisions that
meet the applicable requirements of the Act along with other provisions
that do not meet CAA requirements, and the provisions are not
separable. Although the submittal may not meet all of the applicable
requirements, EPA may consider whether the submittal as a whole has a
strengthening effect on the SIP. If that is the case, a limited
approval may be used to approve a rule that strengthens the existing
SIP, because it constitutes an improvement over what is currently in
the SIP and meets some of the applicable requirements of the Act. If
the rule does not meet all of the applicable requirements, EPA may
elect to use a limited disapproval in conjunction with the limited
approval. The Act does not expressly provide for limited approvals and
limited disapprovals; rather, EPA is using its ``gap-filling''
authority under section 301(a) of the Act, 42 U.S.C. 7601(a), in
conjunction with the authority under CAA section 110(k)(3), to
interpret the Act to provide for this type of approval action.
The primary advantage to using the limited approval approach is to
make the state's SIP submittal federally enforceable and to increase
the SIP's potential to achieve additional emission reductions. The
utility of the limited disapproval approach is to identify the specific
aspects of the SIP submittal that are not fully consistent with CAA
requirements so that the state may then take appropriate action to make
necessary SIP revisions. EPA's evaluation of the 2010 Subchapter 9
provisions submitted by Oklahoma indicates that certain portions of the
SIP submittal present a situation where a limited approval and limited
disapproval is the correct approach.
EPA is proposing limited approval and limited disapproval of the
following portions of the 2010 Subchapter 9 provisions submitted as
part of the July 16, 2010 SIP submittal: (1) Section 252:100-9-1
Purpose, which sets forth the purpose of the 2010 Subchapter 9
provisions and includes a reference to the affirmative defense
provisions; and (2) section 252:100-9-8, Affirmative defenses. As
discussed below, these provisions as a whole strengthen the SIP, even
though there are portions of these provisions which are inconsistent
with CAA requirements for SIP provisions as they relate to affirmative
defenses for violations due to excess emissions during certain types of
events. Furthermore, EPA finds that those portions which are
inconsistent with the requirements of the Act are not separable from
the remainder of the provisions that are consistent with the CAA
requirements. Therefore, EPA is proposing a limited approval and
limited disapproval of these provisions as a whole. The following
paragraphs discuss each of these provisions in detail and describe why
EPA believes that they do not meet applicable CAA requirements.
Section 252:100-9-1. Purpose of the 2010 Subchapter 9 provision is
inconsistent with the requirements of the CAA because it contains an
overly broad reference to the affirmative defense provisions for excess
emissions. The term ``excess emissions,'' defined in section 252:100-9-
2, is not limited to excess emissions occurring during unplanned events
such as malfunctions. As explained in detail below, EPA believes that
the creation of an affirmative defense for violations due to excess
emissions from planned events--such as startup, shutdown, and
maintenance--is inconsistent with the requirements of CAA section
110(a) and is inconsistent with the fundamental enforcement structure
provided in CAA sections 113 and 304.\6\ Should Oklahoma elect to
incorporate an affirmative defense provision for excess emissions
during unavoidable violations into the Oklahoma SIP, then section
252:100-9-1 should be revised to limit the affirmative defense
reference only to those excess emissions during malfunctions, as
discussed below.
---------------------------------------------------------------------------
\6\ See Luminant Generation Co. v. EPA, 714 F.3d 841,856 (5th
Cir. 2013) Cert. pending, acknowledging EPA's belief that ``an
effective enforcement program must be able to collect penalties to
deter avoidable violations.'' See also, EPA's February 22, 2013.
Proposed SIP Calls (78 FR 12460, 12480).
---------------------------------------------------------------------------
EPA's evaluation of the affirmative defense provisions established
in section 252:100-9-8 of the 2010 Subchapter 9 provisions begins with
section 252:100-9-8(a). The first sentence of that section states that
all excess emissions regardless of cause are violations; however, the
second sentence in that section provides an affirmative defense
applicable to violations due to excess emissions during startup,
shutdown and malfunction (all three categorical events). Section
252:100-9-8(a) as submitted is an improvement to the current EPA-
approved SIP for excess emissions (i.e., the 1994 Subchapter 9
provisions). For example, as discussed in the TSD included in the
docket for this rulemaking, section 252:100-9-3 of the current EPA-
approved Oklahoma SIP creates an exemption via director discretion,
such that excess emissions during startup, shutdown, malfunction, or
maintenance are not violations of the applicable emission limitations.
In accordance with CAA sections 110(a)(2)(A) and 302(k), SIPs must
contain ``emission limitations'' and those limitations must be
continuous. Thus, any excess emissions above the level of the
applicable SIP emission limitations must be considered a violation of
such limitations. In addition, SIP provisions that operate to create
exemptions from SIP requirements through the exercise of director's
discretion are also inconsistent with CAA requirements for SIP
revisions. For these reasons, as discussed in EPA's February 22, 2013
Proposed SSM SIP Calls (78 FR 12524), EPA has already proposed a
finding of substantial inadequacy and proposed a SIP call with respect
to OAC 252:110-9-3 of the currently EPA-approved Oklahoma SIP. Section
252:100-9-8(a) of the 2010 Subchapter 9 provisions is an improvement to
the current EPA-approved Oklahoma SIP because it eliminates the
exemption via director discretion provision, so that all excess
emissions regardless of cause are considered violations.
However, section 252:100-9-8(a) is also inconsistent with the
requirements provided in CAA sections 110(a)(2) and conflicts with the
fundamental enforcement structure provided in CAA sections 113 and 304,
because it creates an affirmative defense for violations due
[[Page 54823]]
to excess emissions during startups and shutdowns. As explained in
Section VII(C), ``Affirmative Defense Provisions During Periods of
Startup and Shutdown,'' of EPA's February 22, 2013 Proposed SIP Calls,
EPA's approval of a SIP provision which provides a limited affirmative
defense to a source for excess emissions during periods of malfunction
may be permissible, but EPA's approval of such a defense would not be
permissible for excess emissions during periods of startup and
shutdown. See 78 FR 12480. EPA believes that providing affirmative
defenses for avoidable violations, such as those resulting from excess
emissions during planned events such as startups and shutdowns, that
are within the control of the owner or operator of the source, is
inconsistent with the requirements provided in CAA section 110(a) and
the fundamental enforcement structure provided in CAA sections 113 and
304, which provide for potential civil penalties for violations of SIP
requirements.
SIP provisions providing affirmative defenses can be appropriate
for malfunctions because, by definition and unlike planned startups and
shutdowns, malfunctions are unforeseen and could not have been avoided
by the owner or operator of the source, and the owner or operator of
the source will have taken steps to prevent the violation and to
minimize the effects of the violation after it occurs. In such
circumstances, EPA interprets the Act to allow narrowly drawn
affirmative defense provisions that may provide relief from civil
penalties (but not injunctive relief) to owners or operators of
sources, when their conduct justifies this relief. Such is not the case
with planned and predictable events, such as startups and shutdowns,
during which the owners or operators of sources should be expected to
comply with applicable SIP emission limitations and should not be
accorded relief from civil penalties if they fail to do so.\7\
Providing an affirmative defense for monetary penalties for violations
that result from planned events is inconsistent with the basic premise
that the excess emissions were beyond the control of the owner or
operator of the source, and thus is diametrically opposed to the
intended purpose of such an affirmative defense to encourage better
compliance even by sources for which 100 percent compliance is not
possible.
---------------------------------------------------------------------------
\7\ EPA notes that a state can elect to adopt alternative
emission limitations that apply to normal modes of source operation,
such as startup and shutdown, so long as these provisions are
consistent with CAA requirements. EPA's February 22, 2013 Proposed
SSM SIP Calls also provides guidance on how such SIP provisions may
be developed to meet CAA requirements.
---------------------------------------------------------------------------
As explained above, EPA interprets the CAA to allow a SIP revision
which provides a narrowly tailored affirmative defense for excess
emissions due to malfunctions; however, it cannot approve such a
defense for excess emissions during planned events such as startups and
shutdown activities. Separating the words ``startup'' and ``shutdown''
from the remainder of the second sentence in section 252:100-9-8(a)
could make the approval of the remainder of that section more stringent
than Oklahoma anticipated or intended. For example, had Oklahoma known
at the time of the rule adoption it would be impermissible for EPA to
approve a SIP revision which creates an affirmative defense for excess
emissions due to startups and shutdowns, ODEQ may have elected to
establish alternative emission limitations or other control measures or
techniques designed to minimize emissions during startup and shutdown
activities in lieu of the affirmative defense. Applying the principles
established in Bethlehem Steel and as expressed in the 1992 Calcagni
Memo, we believe that in this particular factual scenario with the
wording of these specific provisions, EPA cannot merely excise the
words ``startup'' and ``shutdown'' from the second sentence in section
252:100-9-8(a), and approve the remainder of the section into the
Oklahoma SIP.\8\
---------------------------------------------------------------------------
\8\ See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036-37
(7th Cir. 1984); see also 1992 Calcagni Memo at 2.
---------------------------------------------------------------------------
Likewise, in looking at the other provisions of section 252:100-9-
8, we believe that they are not separable from section 252:100-9-8(a),
which is the general provision that establishes the affirmative
defenses for startup, shutdown, and malfunction events in the first
instance. That is, the general provisions of section 252:100-9-8(a)
which create the affirmative defenses are inextricably intertwined with
the remainder of the other provisions in section 252:100-9-8 (that is,
sections 252:100-9-8(b) through 252:100-9-8(e)), and those latter
provisions cannot stand by themselves. Given that EPA cannot propose a
full approval of section 252:100-9-8, it follows that EPA cannot
propose full approval of section 252:100-9-1 which states that part of
the purpose of the Subchapter 9 provisions is to establish affirmative
defenses for excess emissions for all three categories of events, as
discussed above.
Although EPA cannot propose full approval of section 252:100-9-
8(a), we have evaluated section 252:100-9-8(b) with respect to the
affirmative defense for excess emissions during malfunctions for
consistency with CAA requirements. This provision requires that in
asserting an affirmative defense for excess emissions during
malfunctions, the owner or operator of a facility must demonstrate
certain criteria by a preponderance of evidence in order to qualify for
the affirmative defense in a judicial or administrative proceeding. EPA
has guidance making recommendations for criteria appropriate for
affirmative defense provisions that would be consistent with the
requirements of the CAA. EPA's 1999 Policy and the February 22, 2013
Proposed SSM SIP Calls lay out these criteria. These are guidance
recommendations and states do not need to track EPA's recommended
wording verbatim, but states should have SIP provisions that are
consistent with these recommendations in order to assure that the
affirmative defense meets CAA requirements. Our evaluation indicates
that the affirmative defense criteria set forth in 252:100-9-8(b)
combined with the requisites set forth in sections 252:100-9-8(d) and
(e) are sufficiently consistent with these recommended criteria for
affirmative defense provisions in SIPs for malfunctions. For a detailed
comparison of the affirmative defense criteria for malfunctions in the
2010 Subchapter 9 provisions with those recommended in EPA's guidance,
see the TSD.
Therefore, as part of the limited approval, we propose that these
sections constitute a sufficiently narrow affirmative defense provision
for malfunctions that would not interfere with the CAA requirements
discussed above. As such, section 252:100-9-8(b) of the 2010 Subchapter
9 provisions is not itself substantially inadequate and is not the
basis for the proposed SIP call that is part of the third action
proposed today. However, because the affirmative defense for
malfunction events is not separable from the affirmative defense
provision applicable to startup and shutdown events, it will
nevertheless be included in the proposed finding of substantial
inadequacy and proposed SIP call in the third action. Should Oklahoma
elect to establish an affirmative defense restricted to malfunctions,
then section 252:100-9-8(b) could be resubmitted at ODEQ's discretion.
As part of the limited disapproval, we propose that the affirmative
defense provisions applicable to startup and shutdown are not
consistent with CAA requirements for SIP provisions. Section 252:100-9-
8(c) provides that in
[[Page 54824]]
asserting an affirmative defense for excess emissions during startup
and shutdown, the owner or operator of a facility must demonstrate
certain criteria by a preponderance of evidence in a judicial or
administrative proceeding. As discussed above, however, an affirmative
defense for planned events, such as startup and shutdown, is
inconsistent with and would interfere with the requirements of CAA
section 110(a) and the fundamental enforcement structure provided in
CAA sections 113 and 304 which provide for potential civil penalties
for violations of SIP emission limits. Accordingly, these deficiencies
in section 252:100-9-8(c) form part of the basis for the proposed
finding of substantial inadequacy and proposed SIP call, as discussed
in the third action proposed today.
Section 252:100-9-8(d) identifies situations where assertion of the
affirmative defense is not allowed and Section 252:100-9-8(e) states
that the Director will consider the notification requirements, in
addition to other relevant information in the determination process,\9\
but such determinations should not be construed as limiting EPA or
citizens' authority to enforce the emission limits of the SIP under the
Act. Taken together, these sections provide for enforcement and
compliance determination of a source during excess emission events. If
limited to affirmative defenses for violations due to excess emissions
during malfunctions, these two provisions would not interfere with the
requirements set forth in CAA sections 110(a) and 302(k), nor would
such sections be inconsistent with the fundamental enforcement
structure provided in CAA sections 113 and 304. Accordingly, sections
252:100-9-8(d) and 252:00-9-8(e) are not substantially inadequate with
CAA requirements and do not form the basis for the proposed finding of
substantial inadequacy and proposed SIP call, as discussed in the third
action proposed today.
---------------------------------------------------------------------------
\9\ We note that 252:100-9-8(a) of the 2010 Subchapter 9
provisions provides an affirmative defense to owners and operators
for civil or administrative penalty actions for excess emissions
during emission events. We interpret the ``determination'' language
in 252:100-9-8(e) to mean how the Director determines whether or not
to pursue enforcement against an owner and operator for excess
emissions violations.
---------------------------------------------------------------------------
In summary, EPA believes that the affirmative defense provisions of
section 252:100-9-8, taken as a whole, when compared against the
currently EPA-approved SIP provisions for excess emissions, would
strengthen the SIP for Oklahoma, if approved. However, there are
specific provisions, namely those that would provide for affirmative
defenses for violations due to excess emission during planned events
such as startups and shutdowns, which are inconsistent with applicable
requirements of the CAA for SIP purposes. Therefore, we are proposing a
limited approval and limited disapproval of sections 252:100-9-1 and
252:100-9-8 of the 2010 Subchapter 9 provisions into the SIP for
Oklahoma. If EPA finalizes the limited approval and limited
disapproval, these sections (sections 252:100-9-1 and 252:100-9-8) will
become part of the SIP and federally enforceable until EPA approves a
revised submission from Oklahoma that is fully approvable. To ensure
Oklahoma addresses the three sections that form the basis of EPA's
limited approval and limited disapproval (sections 252:100-9-1,
252:100-9-8(a), and 252:100-9-8(c)) we are simultaneously proposing a
finding of substantial inadequacy and SIP call to address these three
sections, if EPA finalizes that limited approval and limited
disapproval in the final action. The next section discusses the
proposed finding of substantial inadequacy and proposed SIP call in
more detail.
D. Why are we proposing a finding of substantial inadequacy and a SIP
call?
As stated in Section II(C) above, today's action proposes the
limited approval and limited disapproval of those portions of the 2010
Subchapter 9 provisions identified in Table 2 above. Should today's
second action be finalized as proposed, all of those provisions will
become part of the Oklahoma SIP. However, as noted above, we recognize
that certain portions of those provisions (pertaining in various ways
to the affirmative defense provisions applicable to startup and
shutdown events) do not meet all CAA requirements for SIP purposes. In
order to ensure that Oklahoma takes action to correct those specific
deficiencies, we are also proposing a finding of substantial inadequacy
and a SIP call with respect to the provisions for which EPA is
proposing the limited approval and limited disapproval, which will be
finalized when EPA finalizes the second action as proposed today. The
legal basis for the finding of substantial inadequacy and the SIP call
and a discussion of the specific provisions subject to the proposed SIP
call are discussed below.
The CAA provides a mechanism for the correction of flawed SIPs,
under CAA section 110(k)(5), which provides:
(5) Calls for plan revisions
Whenever the Administrator finds that the applicable
implementation plan for any area is substantially inadequate to
attain or maintain the relevant national ambient air quality
standards, to mitigate adequately the interstate pollutant transport
described in section [176A] of this title or section [184] of this
title, or to otherwise comply with any requirement of [the Act], the
Administrator shall require the State to revise the plan as
necessary to correct such inadequacies. The Administrator shall
notify the State of the inadequacies and may establish reasonable
deadlines (not to exceed 18 months after the date of such notice)
for the submission of such plan revisions.
By its explicit terms, this provision authorizes the EPA to find
that a state's SIP is ``substantially inadequate'' to meet CAA
requirements and, based on that finding, to ``require the State to
revise the [SIP] as necessary to correct such inadequacies.'' This type
of action is commonly referred to as a ``SIP call.'' CAA section
110(k)(5) expressly directs EPA to take action if the SIP provision is
substantially inadequate not just for purposes of attainment or
maintenance of the NAAQS, but also for purposes of meeting ``any
requirement'' of the CAA. In particular, EPA notes that section
110(k)(5) authorizes the agency to make such a finding and issue a SIP
call ``whenever'' it determines a state's SIP to be substantially
inadequate, and thus EPA has authority to propose such a finding and
issue in SIP call prospectively in the event that it finalizes the
limited approval and limited disapproval contemplated in this proposal.
If our limited approval and limited disapproval is finalized, at that
time the state's SIP will be substantially inadequate due to the SIP
provisions concerning affirmative defenses for startup and shutdown
events.
As stated in Section II(C) above, the EPA interprets the CAA to
allow only narrowly drawn affirmative defense provisions that are
available for events that are entirely beyond the control of the owner
or operator of the source. Thus, an affirmative defense may be
appropriate for events like malfunctions, which are sudden and
unavoidable events that cannot be foreseen or planned for. The
underlying premise for an affirmative defense provision is that the
source is properly designed, operated, and maintained, and could not
have taken action to prevent the exceedance. Because the qualifying
source could not have foreseen or prevented the event, the affirmative
defense is available to provide relief from monetary penalties that
could result from an event beyond the control of the source.
[[Page 54825]]
The legal and factual basis supporting the concept of an
affirmative defense for malfunctions does not support providing an
affirmative defense for normal modes of operation like startup and
shutdown. Such events are planned and predictable. The source should be
designed, operated, and maintained to comply with applicable emission
limitations during normal and predictable source operation. Because
startup and shutdown periods are part of a source's normal operations,
the same approach to compliance with, and enforcement of, applicable
emission limitations during those periods should apply as otherwise
applies during a source's normal operations. If justified, the state
can develop and submit to EPA for approval as part of the SIP,
alternative emission limitations or control measures that apply during
startup and shutdown, if the source cannot meet the otherwise
applicable emission limitations in the SIP.
Even if a source is a suitable candidate for alternative SIP
emission limitations during startup and shutdown, however, that does
not justify the creation of an affirmative defense in the case of
excess emissions during such events. Because these events are planned,
the EPA believes that sources should be able to comply with applicable
emission limitations during these periods of time. To provide an
affirmative defense for violations that occur during planned and
predictable events for which the source should have been expected to
comply is tantamount to providing relief from civil penalties for a
planned violation.
EPA believes that adoption of affirmative defense provisions that
include periods of normal source operation that are within the control
of the owner or operator of the source, such as planned startup and
shutdown, would be inconsistent with the requirements of CAA section
110(a) and the enforcement structure provided in CAA sections 113 and
304. Therefore, the affirmative defense provision for excess emissions
during startup and shutdown created in section 252:100-9-8(a) of the
2010 Subchapter 9 provisions and the associated affirmative defense
criteria for excess emissions during startup and shutdown as set forth
in section 252:100-9-8(c) of the 2010 Subchapter 9 provisions are
substantially inadequate to meet CAA requirements for the reasons
stated above. In addition, section 252:100-9-1 of the 2010 Subchapter 9
provisions includes as a purpose of the 2010 Subchapter 9 provisions
the establishment of affirmative defense provisions for excess
emissions, without limiting the reference to affirmative defenses to
excess emissions during malfunctions.
Accordingly, EPA is also proposing to find that section 252:100-9-1
of the 2010 Subchapter 9 provisions is substantially inadequate to meet
the CAA requirements for the reasons discussed above. Therefore, all
three provisions identified in Table 3 (sections 252:100-9-1, 252:100-
9-8(a), and 252:100-9-8(c)) are the basis for the proposed finding of
substantial inadequacy and the proposed SIP call. Because those
subsections are intertwined with the remainder of the section 252:100-
9-8, the proposed limited approval and limited disapproval as well as
the proposed finding of substantial inadequacy and proposed SIP call
encompass all of 252:100-9-8 and 252:100-9-1, as discussed above.
In addition to providing general authority for a SIP call, CAA
section 110(k)(5) sets forth the process and timing for such an action.
First, the statute requires the EPA to notify the state of the final
finding of substantial inadequacy. Second, the statute requires the EPA
to establish ``reasonable deadlines (not to exceed 18 months after the
date of such notice)'' for the state to submit a corrective SIP
submission to eliminate the inadequacy in response to the SIP call. 42
U.S.C. 7410(k)(5). Third, the statute requires that any finding of
substantial inadequacy and notice to the state be made public.
If EPA finalizes the proposed finding of substantial inadequacy and
proposed SIP call for the 2010 Subchapter 9 provisions identified in
Table 3 above, CAA section 110(k)(5) requires EPA to establish a SIP
submission deadline by which Oklahoma must make a SIP submission to
rectify the identified deficiencies. EPA is proposing that if it
promulgates a final finding of substantial inadequacy and a SIP call
for those 2010 Subchapter 9 provisions identified in Table 3 above,
then EPA will establish a date no more than 18 months from the date of
promulgation of the final finding for Oklahoma to respond to the SIP
call. For consistency with EPA's February 22, 2013 Proposed SSM SIP
Calls, under which section 252:100-9-3 of the currently EPA-approved
Oklahoma SIP is already subject to a proposed SIP call (78 FR 12523),
we are here proposing that Oklahoma revise the identified sections of
the 2010 Subchapter 9 provisions (section 252:100-9-1 and sections
252:100-9-8(a) and (c)) and submit a revision of those provisions
consistent with CAA requirements along with the remainder of section
252:100-9-8, addressing the deficiencies identified in this proposal to
EPA. This submittal date will be due no later than the earlier of the
statutory maximum of eighteen months, or the due date by which areas
subject EPA's February 22, 2013 Proposed SSM SIP Calls are required to
revise and submit their SIPs to EPA.\10\ Given that affirmative
defenses for excess emissions are not required elements under the Act,
today's proposed SIP call will not, by itself, trigger a sanction clock
for Oklahoma.
---------------------------------------------------------------------------
\10\ Nothing in today's rulemaking action for Oklahoma should be
construed or interpreted as a re-opening of the public comment
period for EPA's February 22, 2013 (78 FR 12460) Proposed Findings
of Substantial Inadequacy and SIP Calls, or any issues associated
with that separate rulemaking action.
---------------------------------------------------------------------------
If the state fails to submit the corrective SIP revision by the
deadline that the EPA finalizes as part of the SIP call proposed in
this action, then CAA section 110(k)(1)(B) authorizes EPA to find that
the State has failed to make a complete submission, in whole or in
part. Once EPA makes such a finding of failure to submit for a required
SIP submission, CAA section 110(c)(1) requires EPA to ``promulgate a
Federal implementation plan at any time within 2 years after the
[finding] . . . unless the State corrects the deficiency, and [the EPA]
approves the plan or plan revision, before [the EPA] promulgates such
[FIP].'' Thus, if the EPA finalizes the proposed SIP call in this
action and then finds that Oklahoma failed to submit a complete SIP
revision that responds to the SIP call, or if EPA disapproves such SIP
revision, then the EPA will have an obligation under CAA section
110(c)(1) to promulgate a FIP to address the identified SIP deficiency,
no later than two years from the date of the finding or the
disapproval, if the deficiency has not been corrected before that time.
III. Proposed Action
Today, we are proposing full approval of the following provisions
of Title 252, Chapter 100, Subchapter 9, Excess Emission Reporting
Requirements as submitted on July 16, 2010, into the Oklahoma SIP:
Section 252:100-9-1.1 Applicability,
Section 252:100-9-2 Definitions,
Section 252:100-9-7(a) Immediate notice,
Section 252:100-9-7(b) Excess emission event report,
Section 252:100-9-7(c) Ongoing events,
Section 252:100-9-7(d) Alternative reporting, and
Section 252:100-9-7(e) Certificate of truth, accuracy and completeness
required.
[[Page 54826]]
We are proposing to delete the following provisions of Title 252,
Chapter 100, Subchapter 9 from the currently EPA-approved Oklahoma SIP:
Section 252:100-9-1 Purpose,
Section 252:100-9-2 Definitions,
Section 252:100-9-3 General reporting requirements,
Section 252:100-9-4 Maintenance procedures,
Section 252:100-9-5 Malfunctions and releases, and
Section 252:100-9-6 Excesses resulting from engineering limitations.
We are proposing a concurrent limited approval and limited
disapproval of the following provisions of Title 252, Chapter 100,
Subchapter 9 Excess Emission Reporting Requirements as submitted on
July 16, 2010, into the Oklahoma SIP:
Section 252:100-9-1 Purpose, and
Section 252:100-9-8 Affirmative defenses.
We are also proposing a finding of substantial inadequacy and a SIP
call of the provisions listed above for the proposed concurrent limited
approval and limited disapproval, and note the following provisions of
Title 252, Chapter 100, Subchapter 9, Excess Emission Reporting
Requirements as submitted on July 16, 2010, as the basis for the
proposed finding of substantial inadequacy and proposed SIP call:
Section 252:100-9-1 Purpose,
Section 252:100-9-8(a) General, and
Section 252:100-9-8(c) Affirmative defenses for excess emissions during
startup and shutdown.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 act on state law
and ensure that it meets Federal requirements; such review does not
impose additional requirements beyond those imposed by state law.
Additionally, under the Clean Air Act, a finding of substantial
inadequacy and the subsequent obligation for a state to revise its SIP
arise out of CAA sections 110(a) and 110(k)(5). The finding and state
obligation do not directly impose any new regulatory requirements. In
addition, the state obligation is not legally enforceable by a court of
law. EPA will review its intended action on any SIP submittal in
response to the finding in light of applicable statutory and Executive
Order requirements, in any subsequent rulemaking acting on such SIP
submittal.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a ``significant regulatory action''
subject to review by the Office of Management and Budget under
Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore
not subject to review under Executive Orders 12866 and 13563 (76 FR
3821, January 21, 2011).
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.) because this proposed action under section 110 of the CAA
will not in-and-of itself create any new information collection burdens
but simply approves or disapproves certain State requirements for
inclusion into the SIP. The proposal to issue the SIP call only
proposes an action that requires the state to revise its SIP to comply
with existing requirements of the CAA. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.\11\ This proposed action will not have a
significant impact on a substantial number of small entities because
SIP approvals and limited approvals/limited disapprovals under section
110 of the Clean Air Act do not create any new requirements but simply
approve requirements that the State is already imposing. The proposed
SIP call is only an action that requires the state to revise its SIP to
comply with existing requirements of the CAA. The EPA's action,
therefore, would leave to the state the choice of how to revise the SIP
provision in question to make it consistent with CAA requirements.
Therefore, I certify that this action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Moreover, due to the
nature of the Federal-State relationship under the Clean Air Act,
preparation of flexibility analysis would constitute Federal inquiry
into the economic reasonableness of State action. The Clean Air Act
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
---------------------------------------------------------------------------
\11\ Small entities include small businesses, small
organizations, and small governmental jurisdictions. For purposes of
assessing the impacts of this notice on small entities, small entity
is defined as: (1) A small business that is a small industrial
entity as defined in the U.S. Small Business Administration (SBA)
size standards (see 13 CFR 121.201); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district, or special district with a population of less than 50,000;
or (3) a small organization that is any not-for-profit enterprise
that is independently owned and operated and is not dominant in its
field.
---------------------------------------------------------------------------
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531- 1538, for State, local, or tribal governments or the private
sector. The EPA has determined that the limited approval/limited
disapproval proposal action does not include a Federal mandate that may
result in estimated costs of $100 million or more to either State,
local, or tribal governments in the aggregate, or to the private
sector. This action proposes to approve or disapprove pre-existing
requirements under State or local law, and imposes no new requirements.
The proposed SIP Call may impose a duty on the state to meet its
existing obligations to revise its SIP to comply with CAA requirements.
The direct costs of this action, if finalized, would be those
associated with preparation and submission of a SIP revision. Examples
of such costs could include development of a state rule, conducting
notice and public hearing, and other costs incurred in connection with
a SIP submission. These aggregate costs would be far less than the
$100-million threshold in any one year for the state. Thus, this
proposed rule is not subject to the requirements of sections 202 or 205
of UMRA.
In addition since the only regulatory requirements of this proposed
action would apply solely to the State of Oklahoma, this action is not
subject to the requirements of section 203 of UMRA because it contains
no regulatory requirements that might significantly or uniquely affect
small governments.
E. Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism
[[Page 54827]]
implications.'' ``Policies that have federalism implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' This
proposed action does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely approves or
disapproves certain State requirements for inclusion into the SIP and
does not alter the relationship or the distribution of power and
responsibilities established in the CAA. The proposed SIP call is
required by the CAA because the EPA is proposing to find that the
current SIP of the State is substantially inadequate to meet
fundamental CAA requirements. In addition, the effects on the State
will not be substantial because the SIP call will require the State to
submit only those revisions necessary to address the SIP deficiencies
and applicable CAA requirements. While this action may impose direct
effects on the State, the expenditures would not be substantial because
they would be far less than $25 million in the aggregate in any one
year. Thus, Executive Order 13132 does not apply to this action.
E. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action,
the EPA is not addressing any tribal implementation plans. This action
is limited to the State of Oklahoma, and the SIP provisions which are
the subject of the proposed actions do not apply to sources of
emissions located in Indian country. Thus, Executive Order 13175 does
not apply to this action. However, the EPA invites comment on this
proposed rule from tribal officials.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed action is not subject to Executive Order 13045 because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This proposed action under section 110 of the CAA will not in
and of itself create any new regulations but simply approves or
disapproves certain State requirements for inclusion into the SIP. The
proposed SIP Call is not subject to EO 13045 because it would not
establish an environmental standard, but instead would require Oklahoma
to revise a state rule to address requirements of the CAA. Therefore
the proposed action is not an economically significant regulatory
action based on health or safety risks subject to Executive Order 13045
(62 FR 19885, April 23, 1997).
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action merely prescribes the EPA's
action for the State regarding its obligations for SIP under the CAA.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs the
EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
The EPA believes that this proposed action 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 Clean Air Act. This
proposed rulemaking does not involve technical standards. Therefore,
the EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (12898 (59 FR 7629, February 16, 1994)
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
The EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, the
EPA's role is to approve or disapprove state choices, based on the
criteria of the CAA. Accordingly, this action merely proposes to
approve or disapprove certain State requirements for inclusion into the
SIP under section 110 of the CAA and will not in and of itself create
any new requirements. The proposed action increases the level of
environmental protection for all affected populations without having
any disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. The proposed action is intended to ensure that all
communities and populations across the State, including minority, low-
income and indigenous populations overburdened by pollution, receive
the full human health and environmental protection provided by the CAA.
This proposed action concerns the State's obligations regarding the
treatment they give, in rules included in its SIP under the CAA, to
excess emissions during startup, shutdown, and malfunctions. This
proposed action would require Oklahoma to bring its treatment of these
emissions into line with CAA requirements, which would lead to sources
having greater incentives to control emissions during such events.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements, State implementation plan, Volatile organic
compounds.
[[Page 54828]]
Dated: August 28, 2013.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2013-21777 Filed 9-5-13; 8:45 am]
BILLING CODE 6560-50-P
