Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and Federal Operating Permit Program, 38645-38655 [2016-14104]
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Federal Register / Vol. 81, No. 114 / Tuesday, June 14, 2016 / Proposed Rules
action will not have potential
disproportionately high and adverse
human health or environmental effects
on minority, low-income or indigenous
populations because it does not affect
the level of protection provided to
human health or the environment.
VIII. Statutory Authority
The statutory authority for this action
is provided by 42 U.S.C. 7401, et seq.
List of Subjects
40 CFR Part 49
Environmental protection,
Administrative practice and procedure,
Air pollution control
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference.
Dated: May 27, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the
preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
PART 49—INDIAN COUNTRY: AIR
QUALITY PLANNING AND
MANAGEMENT
the rescission determination in
accordance with one or more of the
following methods:
(i) The reviewing authority may mail
or email a copy of the notice to persons
on a mailing list developed by the
reviewing authority consisting of those
persons who have requested to be
placed on such a mailing list.
(ii) The reviewing authority may post
the notice on its Web site.
(iii) The reviewing authority may
publish the notice in a newspaper of
general circulation in the area affected
by the source. Where possible, the
notice may also be published in a Tribal
newspaper or newsletter.
(iv) The reviewing authority may
provide copies of the notice for posting
at one or more locations in the area
affected by the source, such as Post
Offices, trading posts, libraries, Tribal
environmental offices, community
centers or other gathering places in the
community.
(v) The reviewing authority may
employ other means of notification as
appropriate.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
3. The authority citation for part 52
continues to read as follows:
■
1. The authority citation for part 49
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
Subpart A—General Provisions
Authority: 42 U.S.C. 7401, et seq.
4. Section 52.21 is amended by
revising paragraphs (w)(1) through (3) to
read as follows:
■
Subpart C—General Federal
Implementation Plan Provisions
2. Section 49.172 is amended by
adding paragraph (f) to read as follows:
■
§ 52.21 Prevention of significant
deterioration of air quality.
§ 49.172 Final permit issuance and
administrative and judicial review.
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(f) Can my permit be rescinded?
(1) Any permit issued under this
section or a prior version of this section
shall remain in effect until it is
rescinded under this paragraph.
(2) An owner or operator of a
stationary source or modification who
holds a permit issued under this section
for the construction of a new source or
modification that meets the requirement
in paragraph (f)(3) of this section may
request that the reviewing authority
rescind the permit or a particular
portion of the permit.
(3) The reviewing authority may grant
an application for rescission if the
application shows that this section
would not apply to the source or
modification.
(4) If the reviewing authority rescinds
a permit under this paragraph, the
public shall be given adequate notice of
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(w) * * *
(1) Any permit issued under this
section or a prior version of this section
shall remain in effect, unless and until
it expires under paragraph (r) of this
section or is rescinded under this
paragraph.
(2) An owner or operator of a
stationary source or modification who
holds a permit issued under this section
for the construction of a new source or
modification that meets the requirement
in § 52.21 paragraph (w)(3) may request
that the Administrator rescind the
permit or a particular portion of the
permit.
(3) The Administrator may grant an
application for rescission if the
application shows that this section
would not apply to the source or
modification.
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[FR Doc. 2016–13303 Filed 6–13–16; 8:45 am]
BILLING CODE 6560–50–P
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38645
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 70 and 71
[EPA–HQ–OAR–2016–0186; FRL–9947–56–
OAR]
RIN 2060–AS96
Removal of Title V Emergency
Affirmative Defense Provisions From
State Operating Permit Programs and
Federal Operating Permit Program
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to remove
the affirmative defense provisions for
emergencies found in the regulations for
state and federal operating permit
programs. These provisions establish an
affirmative defense that sources can
assert in civil enforcement cases when
noncompliance with certain emission
limitations in operating permits occurs
because of qualifying ‘‘emergency’’
circumstances. These provisions, which
have never been required elements of
state operating permit programs, are
being removed because they are
inconsistent with the enforcement
structure of the Clean Air Act (CAA)
and recent court decisions from the U.S.
Court of Appeals for the D.C. Circuit.
The removal of these provisions is
consistent with other recent EPA actions
involving affirmative defenses and
would harmonize the enforcement and
implementation of emission limitations
across different CAA programs. The
EPA is also taking comment on various
implementation consequences relating
to the proposed removal of the
emergency affirmative defense
provisions.
DATES:
Comments. Comments must be
received on or before August 15, 2016.
Public Hearing: If anyone contacts the
EPA requesting a public hearing on or
before June 29, 2016, the EPA will hold
a hearing. Additional information about
the hearing, if requested, will be
published in a subsequent Federal
Register document.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2016–0186, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
SUMMARY:
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Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the Web, Cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For
general information, please contact Mr.
Matthew Spangler, U.S. Environmental
Protection Agency, Office of Air Quality
Planning and Standards, Air Quality
Planning Division (C504–05), Research
Triangle Park, NC 27711; telephone
number: (919) 541–0327; email address:
spangler.matthew@epa.gov. To request a
public hearing or information pertaining
to a public hearing on this document,
contact Ms. Pamela Long, U.S.
Environmental Protection Agency,
Office of Air Quality Planning and
Standards, Air Quality Planning
Division (C504–01), Research Triangle
Park, NC 27711; telephone number (919)
541–0641; fax number (919) 541–5509;
email address: long.pam@epa.gov.
SUPPLEMENTARY INFORMATION:
A. How is this Federal Register notice
organized?
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I. General Information
A. How is this Federal Register notice
organized?
B. Does this action apply to me?
C. What should I consider as I prepare my
comments for the EPA?
D. How can I find information about a
possible public hearing?
E. Where can I get a copy of this document
and other related information?
II. Overview of Action
III. Background
A. Regulatory History of 40 CFR 70.6(g)
and 71.6(g)
B. Subsequent Legal and Regulatory
History Supporting This Action
IV. Proposed Changes to Part 70 and Part 71
Regulations
A. Purpose of This Proposed Rulemaking
B. Proposed Action: Removal of 40 CFR
70.6(g) and 71.6(g)
C. Legal Justification for Proposed Action
V. Implementation
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Entities potentially affected by this
proposed rulemaking include federal,
state, local and tribal air pollution
control agencies that administer title V
operating permit programs 1 and owners
and operators of emissions sources in all
industry groups who hold or apply for
title V operating permits.
1. Submitting CBI
The information presented in this
preamble is organized as follows:
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B. Does this action apply to me?
C. What should I consider as I prepare
my comments for the EPA?
I. General Information
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A. Implementing These Changes in Part 70
State Operating Permit Programs
B. Implementing These Changes in the Part
71 Federal Operating Permit Program
C. Effect on Sources Potentially Subject to
Enforcement Proceedings
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(URMA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
VIII. Statutory Authority
Do not submit CBI to the EPA through
https://www.regulations.gov or email.
Clearly mark the part or all of the
information that you claim to be CBI.
For CBI information in a disk or CD–
ROM that you mail to the EPA, mark the
outside of the disk or CD–ROM as CBI
and then identify electronically within
the disk or CD–ROM the specific
information that is claimed as CBI. In
addition to one complete version of the
comment that includes information
claimed as CBI, a copy of the comment
that does not contain the information
claimed as CBI must be submitted for
inclusion in the public docket.
Information so marked will not be
1 This preamble makes frequent use of the term
‘‘state,’’ usually meaning the state air pollution
control agency that serves as the permitting
authority. The use of the term ‘‘state’’ also applies
to local and tribal air pollution control agencies,
where applicable.
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disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments
When submitting comments,
remember to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions. The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
D. How can I find information about a
possible public hearing?
If anyone contacts the EPA requesting
a public hearing on or before June 29,
2016, the EPA will hold a hearing. If
requested, further details concerning a
public hearing for this proposed rule
will be published in a subsequent
Federal Register document. For updates
and additional information on a public
hearing, please check the EPA’s Web
page at https://www.epa.gov/title-voperating-permits/current-regulationsand-regulatory-actions.
E. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this
Federal Register document will be
posted at https://www.epa.gov/title-voperating-permits/current-regulationsand-regulatory-actions.
II. Overview of Action
The EPA has promulgated permitting
regulations for the operation of major
and certain other sources of air
pollutants under title V of the CAA.
These regulations are codified in 40 CFR
parts 70 and 71, which contain the
requirements for state operating permit
programs and the federal operating
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permit program, respectively. These
regulations currently contain identical
provisions setting forth an affirmative
defense to enforcement actions brought
for noncompliance with technologybased emission limitations under
specific ‘‘emergency’’ circumstances.
See 40 CFR 70.6(g) and 71.6(g).
In this action, the EPA is proposing to
remove the emergency affirmative
defense provisions in 40 CFR 70.6(g)
and 71.6(g) because they are
inconsistent with the EPA’s current
interpretation of the CAA’s enforcement
structure and recent court decisions
from the U.S. Court of Appeals for the
D.C. Circuit. These provisions have
never been required elements of state
operating permit programs. The removal
of these provisions is consistent with
other recent EPA actions involving
affirmative defenses and would help
harmonize the enforcement and
implementation of emission limitations
across different CAA programs.
If the EPA takes final action to remove
these provisions from 40 CFR 70.6(g), it
may be necessary for any states that
have adopted similar affirmative
defense provisions into their part 70
operating permit programs to revise
their program regulations to remove
these provisions. In addition, the EPA
expects that these states would
coordinate revisions of individual
operating permits that contain similar
provisions.
III. Background
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A. Regulatory History of 40 CFR 70.6(g)
and 71.6(g)
In 1990, Congress amended the CAA
and established, among other things,
title V of the CAA, which contains a
national operating permit program for
certain stationary sources of air
pollution. See CAA sections 501–503,
Public Law 101–549 (1990) (codified at
42 U.S.C. 7661–7661b). Shortly
thereafter, and pursuant to CAA section
502(b), the EPA promulgated regulations
implementing title V of the CAA. The
first set of regulations, finalized in 1992
and codified at 40 CFR part 70 (the part
70 regulations), governs state operating
permit programs and provides for states
to develop and submit to the EPA
programs for issuing operating permits
for major and certain other stationary
sources of air pollution.2 Pursuant to
CAA section 502(d)(3), the EPA
promulgated a second set of regulations
in 1996, found at 40 CFR part 71 (the
part 71 regulations), which outlines the
2 Operating Permit Program, Final Rule, 57 FR
32250 (July 21, 1992).
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federal operating permit program.3 Both
sets of regulations contain identical
affirmative defense provisions, which
are addressed by this action.
Title V of the CAA does not contain
any provisions concerning an
affirmative defense mechanism for
emergencies. When the EPA first
proposed its part 70 regulations in 1991,
the agency did not include any such
provisions.4 However, the EPA received
comments specifically requesting that
the part 70 regulations make some
provision for ‘‘emergencies’’ or ‘‘upsets’’
caused by the failure of emission control
equipment. In promulgating the final
part 70 regulations for state operating
permit programs, the EPA included
§ 70.6(g), which contains an affirmative
defense for ‘‘emergencies.’’ 5 When the
EPA promulgated its part 71 regulations
in 1996, it adopted an identical
provision in § 71.6(g), in order to
maintain consistency between the state
and federal operating permit programs.6
The text of sections 70.6(g) and 71.6(g)
has not changed since initially
promulgated.
The title V emergency provisions
establish an affirmative defense. A
stationary source of air pollution can
assert this affirmative defense in an
enforcement case to avoid liability for
noncompliance with technology-based
emission limits contained in the
source’s title V permit. In order to use
this affirmative defense and avoid
liability, the source must demonstrate
that any excess emissions occurred as
the result of an ‘‘emergency,’’ as defined
in the regulations, and make a number
of other demonstrations specified in the
regulations. See 40 CFR 70.6(g) and
71.6(g). These title V affirmative defense
provisions apply in addition to, and
independently from, any emergency or
upset provisions contained in other
applicable CAA requirements.
Sections 70.6(g) and 70.4(b)(16) form
the basis for similar affirmative defense
provisions contained in state operating
permit programs and for similar
provisions contained in individual
state-issued operating permits. Section
71.6(g) provides the authority to include
this emergency provision in operating
permits issued by the EPA or by states
with delegated authority under part 71.
3 Federal Operating Permits Program, Final Rule,
61 FR 34202 (July 1, 1996).
4 Operating Permit Program, Proposed Rule, 56
FR 21712 (May 10, 1991).
5 Operating Permit Program, Final Rule, 57 FR
32279. The EPA explained that the provision was
intended to provide operational flexibility, and was
modeled on a similar National Pollutant Discharge
Elimination System (NPDES) permit provision in 40
CFR 122.41. Id.
6 Federal Operating Permits Program, Final Rule,
61 FR 34219 (July 1, 1996).
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Such emergency affirmative defense
provisions are not required program
elements. States have never been
obligated to include the § 70.6(g)
affirmative defense provision in their
part 70 operating permit programs;
instead, the provision has always been
discretionary.7 Similarly, although the
emergency affirmative defense provision
is located within the ‘‘Permit Content’’
section of the part 70 and part 71
regulations, the EPA does not consider
the provision to be a required permit
term.8 Thus, the EPA considers the
emergency provision to be a
discretionary element of both state
permitting programs as well as
individual operating permits.
B. Subsequent Legal and Regulatory
History Supporting This Action
The EPA has considered the most
appropriate ways to account for excess
emissions during different modes of
source operation, such as startup and
shutdown, and emissions during
emergencies, upsets, and malfunctions
for more than 40 years. The EPA’s
policies regarding the emergency
affirmative defense provisions in its part
70 and 71 regulations have been shaped
by a number of factors, including the
structure of the CAA, federal court
decisions, experience with similar
provisions in other EPA programs, and
recommendations from stakeholders.
This section summarizes some of the
more relevant and recent legal,
regulatory, and policy considerations
informing the EPA’s current policy on
affirmative defense provisions,
including the D.C. Circuit’s opinion in
NRDC v. EPA and the EPA’s recent
7 Operating Permits Program and Federal
Operating Permits Program, Proposed Rule [Title V
Supplemental Proposal], 60 FR 45530, 45558
(August 31, 1995) (‘‘At the outset, EPA wants to
make clear that the part 70 rule does not require
that States adopt the emergency defense. A State
may include such a defense in its part 70 program
to the extent it finds appropriate, although it may
not adopt an emergency defense less stringent than
that set forth at section 70.6(g). . . . [T]he Act in
sections 116 and 506(a) authorizes States to
establish additional or more stringent air pollution
control or permitting requirements. Consistent with
that, States may decide to provide an emergency
defense that is narrower in scope or more stringent
in application than § 70.6(g) or no defense at all.’’).
8 See State Implementation Plans: Response to
Petition for Rulemaking; Restatement and Update of
EPA’s SSM Policy Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown and Malfunction,
Final Action [SSM SIP Call], 80 FR 33839, 33924
(June 12, 2015) (‘‘[A]s part of normal permitting
process, the EPA encourages permitting authorities
to consider the discretionary nature of the
emergency provisions when determining whether to
continue to include permit terms modeled on those
provisions in operating permits that the permitting
authorities are issuing in the first instance or
renewing’’).
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experience with affirmative defenses for
startup, shutdown, and malfunction
(SSM) events in State Implementation
Plans (SIPs).
1. D.C. Circuit Opinion in NRDC v. EPA
In the 2014 NRDC v. EPA 9 case, the
United States Court of Appeals for the
D.C. Circuit vacated an affirmative
defense provision applicable to
malfunction events. In 2010, the EPA
included an affirmative defense within
its National Emission Standards for
Hazardous Air Pollutants (NESHAP) for
Portland cement facilities, promulgated
under CAA section 112.10 This
provision created an affirmative defense
that sources could assert in civil
enforcement proceedings when
violations of emission limitations
occurred because of qualifying
unavoidable malfunctions. The D.C.
Circuit held that this affirmative defense
provision exceeded the EPA’s statutory
authority and that only the courts have
the authority to decide whether to
assess penalties for violations in civil
suits. As the court explained:
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By its terms, Section 304(a) clearly vests
authority over private suits in the courts, not
EPA. As the language of the statute makes
clear, the courts determine, on a case-by-case
basis, whether civil penalties are
‘‘appropriate.’’ By contrast, EPA’s ability to
determine whether penalties should be
assessed for Clean Air Act violations extends
only to administrative penalties, not to civil
penalties imposed by a court. . . . [U]nder
this statute, deciding whether penalties are
‘‘appropriate’’ in a given private civil suit is
a job for the courts, not for EPA.’’ 11
The D.C. Circuit therefore concluded
that the EPA lacked the authority to
create an affirmative defense in private
civil suits that would purport to alter
the jurisdiction of the court to assess
civil penalties for violations. Although
this case was based on EPA regulations
promulgated under CAA section 112,
the court’s holding was not based on
section 112, but rather on sections
304(a) and 113(e)(1). Therefore, and as
discussed further in Section IV of this
document, the EPA interprets the
decision to be relevant to all similar
affirmative defense provisions, such as
those found in part 70 and part 71, that
may interfere with the authority of
courts to assess penalties or to impose
other remedies authorized in CAA
section 113(b) in civil enforcement
suits. This proposed rulemaking seeks
9 749
F.3d 1055 (D.C. Cir. 2014).
Emission Standards for Hazardous Air
Pollutants From the Portland Cement
Manufacturing Industry and Standards of
Performance for Portland Cement Plants, 75 FR
54993 (September 9, 2010).
11 NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir.
2014).
10 National
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to ensure that the EPA’s part 70 and part
71 regulations are consistent with the
enforcement structure of the CAA in
accordance with the reasoning of the
NRDC v. EPA decision.12
2. SSM SIP Call
The EPA has also reconsidered
affirmative defense provisions similar to
those involved in the NRDC v. EPA case
in other recent regulatory actions. On
June 15, 2015, the EPA issued a ‘‘SIP
Call’’ (the SSM SIP Call) finding that
certain SIP provisions in 36 states are
substantially inadequate to meet CAA
requirements.13 Many of the deficient
SIP provisions at issue in the SSM SIP
call are affirmative defense type
provisions, and some of them are
analogous to the emergency affirmative
defense in part 70 and part 71. Although
the agency’s SSM policy for SIP
provisions is not directly at issue in this
proposal, certain aspects of the SSM SIP
Call are especially relevant and are
discussed in this subsection.
After the EPA initially proposed the
SSM SIP Call,14 the D.C. Circuit issued
its opinion in NRDC v. EPA. That
decision, which concerned the legal
basis for an affirmative defense
provision in the EPA’s own regulations,
caused the EPA to reconsider the legal
basis for any affirmative defense
provisions contained in SIPs.15 The EPA
concluded that the logic of the court in
NRDC v. EPA extends beyond CAA
12 In 2008, the D.C. Circuit issued a decision in
Sierra Club v. Johnson, 551 F.3d 1019, vacating the
EPA’s regulations that exempted sources under
certain circumstances from emissions standards
during periods of SSM. The EPA maintains that the
part 70 and part 71 emergency affirmative defense
provisions are just that—affirmative defenses to
enforcement actions—not exemptions from
otherwise applicable emissions limitations. Such
affirmative defense provisions are called into
question by NRDC v. EPA. However, to the extent
that the title V emergency affirmative defense could
be considered in some respects to function like an
exemption from otherwise applicable emissions
limitations, such an exemption would be
incompatible with the CAA and Sierra Club v.
Johnson. This is an alternative basis for proposing
to remove the part 70 and part 71 emergency
affirmative defense provisions, as discussed further
in Section IV.C of this document.
13 SSM SIP Call, 80 FR 33839 (June 12, 2015).
14 State Implementation Plans: Response to
Petition for Rulemaking; Findings of Substantial
Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, Proposed
Rule, 78 FR 12459 (February 22, 2013).
15 See State Implementation Plans: Response to
Petition for Rulemaking; Findings of Substantial
Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction; Supplemental
Proposal To Address Affirmative Defense
Provisions in States Included in the Petition for
Rulemaking and in Additional States, Supplemental
notice of proposed rulemaking [SSM SIP Call
Supplemental Proposal], 79 FR 55919, 55929
(September 17, 2014).
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section 112 to affirmative defense
provisions contained in SIPs. Therefore,
the EPA clarified and revised its
interpretation of CAA requirements
with respect to affirmative defense
provisions for SSM events. The agency
explained that ‘‘the enforcement
structure of the CAA, embodied in
section 113 and section 304, precludes
any affirmative defense provisions that
would operate to limit a court’s
jurisdiction or discretion to determine
the appropriate remedy in an
enforcement action. These provisions
are not appropriate under the CAA, no
matter what type of event they apply to,
what criteria they contain or what forms
of remedy they purport to limit or
eliminate.’’ 16 The EPA explained that
‘‘[a]ffirmative defense provisions by
their nature purport to limit or eliminate
the authority of federal courts to
determine liability or to impose
remedies through factual considerations
that differ from, or are contrary to, the
explicit grants of authority in section
113(b) and section 113(e).’’ 17 The EPA’s
interpretation of the CAA’s enforcement
structure and the NRDC v. EPA
decision, as set forth in the final SSM
SIP Call, is relevant to the current
rulemaking. Section IV of this document
further discusses this interpretation in
the context of the part 70 and part 71
emergency provisions.
Following this interpretation, the EPA
directed states to remove specifically
identified provisions containing
affirmative defenses from their SIPs.
Some of these SSM provisions were
similar to the emergency provisions in
the EPA’s part 70 and part 71
regulations. In the final SSM SIP Call,
the EPA indicated that provisions
modeled after the §§ 70.6(g) and 71.6(g)
emergency affirmative defense
provisions—including provisions that
were more narrowly defined—were no
longer consistent with the EPA’s
interpretation of the CAA and could not
be included in SIPs.18 For example, the
EPA found that an Arkansas SIP
provision establishing an affirmative
defense for emergencies, which may
have been modeled after the EPA’s title
V regulations, was substantially
inadequate to meet CAA
requirements.19 The EPA also discussed
the potential conflict between the SSM
policy applicable to SIP provisions and
the part 70 and part 71 emergency
provisions, but noted that it was not
taking action to revise the title V
16 SSM
SIP Call, 80 FR 33851 (June 12, 2015).
at 33852.
18 Id. at 33924.
19 Id. at 33967; see also SSM SIP Call
Supplemental Proposal, 79 FR 55942 and 55943.
17 Id.
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regulations in the SSM SIP Call
rulemaking.20 In the final SSM SIP Call,
however, the EPA indicated that it was
considering whether such changes may
be necessary and how best to make such
changes.
3. Related Actions in Other CAA
Program Areas
Since 2014, the EPA has removed or
omitted affirmative defense provisions
in numerous regulations throughout
other CAA program areas following the
NRDC v. EPA case. Specifically, in
newly issued and revised New Source
Performance Standards (NSPS),
emission guidelines for existing sources,
and NESHAP regulations, the EPA has
either omitted new affirmative defense
provisions or removed existing
affirmative defense provisions.21 This
proposed rulemaking for the part 70 and
part 71 regulations is thus consistent
with these related efforts in other CAA
program areas and ensures that title V
operating permits do not contain
additional affirmative defenses that
could interfere with the EPA’s efforts to
remove these impermissible provisions
from specific underlying applicable
requirements.
IV. Proposed Changes to Part 70 and
Part 71 Regulations
A. Purpose of This Proposed
Rulemaking
This proposed rulemaking is
responsive to a number of concerns and
related actions, including those
discussed in Section III of this
document. The EPA considers this
proposed rulemaking important to
ensure that the EPA’s title V regulations
are consistent with the enforcement
structure envisioned by Congress in the
1990 CAA amendments. This action is
intended to respond to the reasoning of
the D.C. Circuit’s recent opinion in
NRDC v. EPA, which the EPA interprets
to extend to the affirmative defense
provisions in the part 70 and part 71
regulations. This proposed rule also
follows from similar regulatory actions
in other CAA program areas, including
the recent SSM SIP Call and various
20 SSM
SIP Call, 80 FR 33924 (June 12, 2015).
e.g., National Emission Standards for
Hazardous Air Pollutants for the Portland Cement
Manufacturing Industry and Standards of
Performance for Portland Cement Plants; Final
Rule, 80 FR 44771 (July 27, 2015); National
Emission Standards for Hazardous Air Pollutants
for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters; Final
Rule, 80 FR 72789 (November 20, 2015); Standards
of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources:
Commercial and Industrial Solid Waste Incineration
Units; Proposed Rule, 80 FR 3018, 3025 (January 21,
2015).
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21 See,
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NSPS and NESHAP regulations. The
EPA considers the proposed removal of
the emergency affirmative defense
provisions from the title V regulations
necessary to maintain a consistent
interpretation of the CAA throughout
different CAA programs, including
section 110 SIPs, section 111 NSPS and
existing source guidelines, and section
112 NESHAPs.
Finally, this proposed action follows
from the EPA’s stated intentions to
revisit the emergency affirmative
defense provisions promulgated in 1992
and seeks to provide clarity in response
to stakeholder concerns.22 The EPA
initially sought to clarify the scope of
the emergency provisions over the
course of multiple actions in 1995 and
1996. However, the EPA ultimately
indicated that it would reevaluate the
part 70 and part 71 emergency
affirmative defense provisions—
including whether these provisions may
need to be eliminated—in a subsequent
rulemaking.23 The EPA again discussed
the title V emergency provisions in the
22 In addition to comments received on prior
regulatory actions, the EPA has received input from
stakeholders as recent as 2006. The Clean Air Act
Advisory Committee (CAAAC), chartered under the
Federal Advisory Committee Act, was established
to advise the EPA on issues related to the 1990 CAA
Amendments. In 2006, a Task Force formed by the
CAAAC issued its Final Report: Title V
Implementation Experience. See Title V Task Force,
Final Report to the Clean Air Act Advisory
Committee: Title V Implementation Experience
(April 2006), available at https://www.epa.gov/sites/
production/files/2014-10/documents/title5_
taskforce_finalreport20060405.pdf. Although the
Task Force did not agree on how broadly the title
V emergency affirmative defense should be applied,
all eighteen members of the Task Force
unanimously recommended the following: ‘‘Title V
permits should be clear as to which limits are
subject to the part 70 emergency defense (e.g.,
under the current rule, technology based limits).’’
Id. at 144. By way of response, the proposed action
to remove these provisions would essentially moot
these concerns about clarity on the applicability of
these provisions.
23 See Federal Operating Permits Program,
Proposed Rule, 60 FR 20804, 20816 (April 27, 1995)
(‘‘The EPA is reevaluating the provisions in parts
70 and 71 relating to the emergency defense in light
of concerns identified in legal challenges to the part
70 rule. The EPA may propose revisions to the part
70 and part 71 sections providing for the emergency
defense before EPA would include such defense in
any part 71 permits.’’); Title V Supplemental
Proposal, 60 FR 45560 (‘‘The EPA is reluctant to
retain a generally applicable emergency defense
without completing further review of the
appropriateness of such a defense for the different
Federal technology based standards in light of the
concerns with such a defense raised in the CWA
cases.’’); Federal Operating Permits Program, Final
Rule, 61 FR 34219 (‘‘As a result of concerns
identified in legal challenges to part 70, the Agency,
in the August 1995 supplemental proposal,
solicited comment on the need for, scope and terms
of an emergency affirmative defense provision. The
Agency is reviewing those comments, but has not
yet made a decision on whether or not to modify
or remove this additional affirmative defense
provision from part 70.’’ (emphasis added)).
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SSM SIP Call, where the agency
acknowledged the potential conflict
between the SSM policy applicable to
SIP provisions and the part 70 and part
71 emergency provisions, but indicated
that it would potentially make changes
to the title V affirmative defense
provisions in a subsequent
rulemaking.24 As contemplated in the
prior title V rulemakings and in the
more recent SSM SIP Call, the EPA is
now considering the appropriate
changes to parts 70 and 71 and
proposing to remove the title V
emergency affirmative defenses
provisions.
B. Proposed Action: Removal of 40 CFR
70.6(g) and 71.6(g)
The EPA is proposing to remove the
emergency provisions located at 40 CFR
70.6(g) and 71.6(g). The agency has not
identified any other viable option for
reconciling these affirmative defense
provisions with the enforcement
structure of the CAA, in accordance
with the reasoning of the NRDC v. EPA
decision. The implications of this
proposed removal on the federal
operating permit program, state
operating permit programs, and on
individual sources subject to title V
operating permits are discussed in
Section V of this document.
C. Legal Justification for Proposed
Action
This action is proposed pursuant to
CAA sections 502(b) and 502(d)(3), 42
U.S.C. 7661a(b) & (d)(3), which direct
the Administrator of the EPA to
promulgate regulations establishing
state operating permit programs and
give the Administrator authority to
establish a federal operating permit
program.
The EPA proposes to remove the
affirmative defense provisions from the
part 70 and 71 regulations in order to
ensure that the federal and state title V
operating permit programs operate
within the bounds established by
24 See SSM SIP Call, 80 FR 33924 (‘‘Those
regulations [40 CFR 70.6(g) and 71.6(g)], which are
applicable to title V operating permits, may only be
changed through appropriate rulemaking to revise
parts 70 and 71. Further, any existing permits that
contain such emergency provisions may only be
changed through established permitting procedures.
The EPA is considering whether to make changes
to 40 CFR part 70 and 40 CFR part 71, and if so,
how best to make those changes. In any such action,
EPA would also intend to address the timing of any
changes to existing title V operating permits. Until
that time, as part of normal permitting process, the
EPA encourages permitting authorities to consider
the discretionary nature of the emergency
provisions when determining whether to continue
to include permit terms modeled on those
provisions in operating permits that the permitting
authorities are issuing in the first instance or
renewing.’’).
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Congress in the 1990 CAA
Amendments. Regarding these
boundaries, the D.C. Circuit’s opinion in
NRDC v. EPA is instructive as to the
enforcement structure envisioned by
Congress, as well as the role of
affirmative defense provisions within
the EPA’s regulations implementing the
CAA. As discussed in Section III.B.1 of
this document, the court in NRDC v.
EPA determined that an affirmative
defense provision promulgated by the
EPA for the Portland cement industry
under CAA section 112 exceeded the
agency’s statutory authority. In doing so,
the D.C. Circuit based its holding on
CAA sections 304(a) and 113(e)(1).
CAA section 304(a) grants ‘‘any
person’’ the right to ‘‘commence a civil
action . . . against any person . . . who
is alleged to have violated (if there is
evidence that the alleged violation has
been repeated) or to be in violation of
. . . an emission standard or limitation’’
under the CAA. 42 U.S.C. 7604(a).
Section 304(a) also provides that ‘‘[t]he
[federal] district courts shall have
jurisdiction, without regard to the
amount in controversy or the
citizenship of the parties, to enforce
such an emission standard or limitation
. . . and to apply any appropriate civil
penalties.’’ Id. CAA section 113(e)(1)
establishes a number of factors that
courts must consider when determining
the amount of any penalties assessed in
civil actions under section 304(a). See
42 U.S.C. 7413(e)(1).
The D.C. Circuit indicated that these
statutory provisions precluded the EPA
from promulgating affirmative defense
provisions that a source could use in
civil enforcement suits. The court did
not remand the regulation to the EPA for
better explanation of the legal basis for
an affirmative defense; the court instead
vacated the affirmative defense and
indicated that there could be no valid
legal basis for such a provision because
it contradicted fundamental
requirements of the CAA concerning the
authority of courts in judicial
enforcement of CAA requirements. As
the court explained:
By its terms, Section 304(a) clearly vests
authority over private suits in the courts, not
EPA. As the language of the statute makes
clear, the courts determine, on a case-by-case
basis, whether civil penalties are
‘‘appropriate.’’ By contrast, EPA’s ability to
determine whether penalties should be
assessed for Clean Air Act violations extends
only to administrative penalties, not to civil
penalties imposed by a court. . . . [U]nder
this statute, deciding whether penalties are
‘‘appropriate’’ in a given private civil suit is
a job for the courts, not for EPA.’’ 25
25 NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir.
2014).
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The court also noted that ‘‘EPA cannot
rely on its gap-filling authority to
supplement the Clean Air Act’s
provisions when Congress has not left
the agency a gap to fill.’’ 26
The D.C. Circuit’s holding in NRDC v.
EPA is especially pertinent here.27 Like
the Portland cement NESHAP at issue in
the NRDC v. EPA case, the provisions at
issue in this proposal are also
regulations promulgated by the EPA to
implement programs under the CAA.
The affirmative defense for
malfunctions in the Portland cement
NESHAP and the affirmative defense for
emergencies in the EPA’s part 70 and
part 71 regulations are functionally
similar provisions that operate in
essentially identical ways to establish
affirmative defenses in civil
enforcement actions. Moreover, the EPA
believes that the reasoning of the court’s
decision in NRDC v. EPA applies more
broadly than to the specific facts of the
case for several reasons. The EPA notes
that the court’s decision did not turn
upon the specific provisions of CAA
section 112. Although the court only
evaluated the legal validity of an
affirmative defense provision created by
the EPA in conjunction with specific
standards applicable to manufacturers
of Portland cement, the court based its
decision upon the provisions of sections
113 and 304 that pertain to enforcement
of CAA requirements more broadly,
including to emission limits in title V
permits. Sections 113 and 304 pertain to
administrative and judicial enforcement
generally and are in no way limited to
enforcement of emission limitations
promulgated by the EPA under section
112. Thus, the EPA does not think that
the mere fact that the court only
addressed the legality of an affirmative
defense provision in this particular
context means that the court’s
interpretation of sections 113 and 304
does not also apply more broadly. To
the contrary, the EPA sees no reason
why the logic of the court concerning
sections 113 and 304 would not apply
to the title V emergency affirmative
defense provisions, as well.
In light of the court’s decision, the
EPA now interprets the enforcement
structure of the CAA, embodied in
section 113 and section 304, to preclude
affirmative defense provisions that
26 Id.
at 1064.
EPA’s interpretation of the NRDC v. EPA
case as it affects the affirmative defense provisions
in parts 70 and 71 is similar to the interpretation
of the case as articulated in the SSM SIP Call. More
information on the EPA’s interpretation of the
NRDC v. EPA ruling can be found in the Final SSM
SIP Call and the August 2014 Supplemental
Proposal. See SSM SIP Call, 80 FR 33851; SSM SIP
Call Supplemental Proposal, 79 FR 55929.
27 The
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would operate to limit a court’s
authority or discretion to determine the
appropriate remedy in an enforcement
action. CAA section 304(a) grants the
federal district courts the jurisdiction to
determine liability and to impose
penalties in enforcement suits brought
by citizens. Similarly, section 113(b)
provides courts with explicit
jurisdiction to determine liability and to
impose remedies of various kinds,
including injunctive relief, compliance
orders, and monetary penalties, in
judicial enforcement proceedings. These
grants of jurisdiction come directly from
Congress, and the EPA is not authorized
to alter or eliminate this authority under
the CAA or any other law. With respect
to monetary penalties, CAA section
113(e) explicitly includes the factors
that courts and the EPA are required to
consider in the event of judicial or
administrative enforcement for
violations of CAA requirements,
including title V permit provisions.
Because Congress has already given
federal courts the authority to determine
what monetary penalties are appropriate
in the event of judicial enforcement for
a violation of a title V permit provision,
neither the EPA nor states can alter or
eliminate that authority by
superimposing restrictions on the
authority and discretion granted by
Congress to the courts. Affirmative
defense provisions by their nature
purport to limit or eliminate the
authority of federal courts to determine
liability or to impose remedies through
factual considerations that differ from,
or are contrary to, the explicit grants of
authority in section 113(b) and section
113(e). Therefore, these provisions are
not appropriate under the CAA, no
matter what type of event they apply to,
what criteria they contain, or what
forms of remedy they purport to limit or
eliminate. This is true for regulations
promulgated under CAA sections 111
and 112, SIP provisions approved by the
EPA, and regulations promulgated
under title V of the CAA. Thus, just as
the EPA revisited affirmative defenses
in SIP provisions in light of the NRDC
v. EPA opinion, the EPA is reevaluating
its interpretation of the CAA relative to
the emergency affirmative defense
provisions contained in its part 70 and
part 71 regulations, and is proposing to
remove those provisions because they
are not consistent with the CAA’s
enforcement structure.
Since the 2014 NRDC v. EPA
decision, and in order to ensure
consistency with the CAA’s
enforcement structure, the EPA has been
omitting new affirmative defense
provisions and removing existing
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affirmative defense provisions
throughout many CAA program areas
that establish emission limitations
contained in title V permits. However,
the title V emergency affirmative
defense provisions apply regardless of
whether there is an affirmative defense
also found in the underlying applicable
requirements. See 40 CFR 70.6(g)(5) and
71.6(g)(5). As a result, sources could
seek to assert this affirmative defense in
title V enforcement cases for
noncompliance with emission
limitations derived from applicable
requirements that do not otherwise
contain such an affirmative defense for
emergencies. The continued existence of
the title V emergency affirmative
defense provisions thus contradicts and
compromises the EPA’s on-going efforts
to ensure that underlying regulations are
applied consistently with the CAA.
The EPA maintains that the part 70
and part 71 emergency affirmative
defense provisions are affirmative
defenses to enforcement actions and are
not ‘‘exemptions’’ from otherwise
applicable emissions limitations.
However, as an alternative but
additional justification, to the extent
that the emergency affirmative defense
provisions in part 70 and part 71 could
be interpreted to establish an exemption
or exclusion from emission limits
(rather than merely an affirmative
defense to penalties in the event of a
violation), these provisions would still
run contrary to the CAA’s requirements
and require removal. As previously
noted,28 under Sierra Club v. Johnson,29
the CAA requires that emission
limitations must apply continuously
and cannot contain exemptions,
conditional or otherwise. Therefore,
even if characterized as an exemption or
exclusion from otherwise applicable
limits, the emergency affirmative
defense provisions would, nonetheless,
run afoul of the CAA and Sierra Club v.
Johnson, and should, on that alternative
basis, be removed.
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V. Implementation
A. Implementing These Changes in Part
70 State Operating Permit Programs
This section discusses the actions that
the EPA anticipates state, local, and
tribal permitting authorities 30 would
need to take (if this proposed rule is
finalized in substantially the same form)
in order to ensure that their operating
permit programs are consistent with the
28 See
footnote 12.
F.3d 1019 (D.C. Cir. 2008).
30 As noted in footnote 1, the term ‘‘state’’ as used
throughout this preamble refers to all state, local
and tribal permitting authorities that administer
approved part 70 programs.
29 551
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proposed revisions to the EPA’s part 70
regulations and the CAA’s enforcement
structure. The EPA welcomes comments
on how best to address the
implementation consequences of the
proposed removal of 40 CFR 70.6(g).
1. Programs That Do Not Contain
Emergency Affirmative Defense
Provisions
As discussed in Section III.A of this
document, the section 70.6(g)
emergency provision has never been a
required element of part 70 operating
permit programs. For states that have
not adopted the section 70.6(g)
emergency provision, or any similar
affirmative defense provision, into their
part 70 operating permit programs, no
further action would be required to
comply with this rule as proposed.
However, we expect that as a result of
this rulemaking, it may be necessary for
states that have adopted an affirmative
defense in their part 70 programs to take
the actions described in the following
subsections.
2. Programs That Contain Emergency
Affirmative Defense Provisions
The EPA’s existing part 70 regulations
provide for state program revisions if
part 70 is revised and the EPA
determines that such conforming
changes are necessary. See 40 CFR
70.4(a) and 70.4(i). Therefore, as a result
of this proposed regulatory action to
remove 40 CFR 70.6(g) and 71.6(g), state
operating permit programs that contain
an emergency affirmative defense may
have to take appropriate actions to
remain consistent with the CAA and the
EPA’s part 70 regulations. As discussed
in more detail in the following
subsections, the EPA is requesting
comment on whether revisions to
certain approved state programs may be
necessary if the EPA removes 40 CFR
70.6(g) and 71.6(g).
a. Scope of Program Revisions That May
Be Necessary if the Rule Is Finalized as
Proposed
Affirmative defense provisions
included within a state’s part 70 (title V)
program regulations—including
provisions that are narrower in scope or
more stringent than 40 CFR 70.6(g)—
will generally implicate the same
concerns that prompted the EPA to
propose removing 70.6(g) and 71.6(g)
from the agency’s regulations. The EPA
expects that state programs containing
provisions that mirror the exact
language of 70.6(g) would need to be
revised if this proposed rule is finalized,
as would state programs that have
provisions that do not exactly mirror the
language of 40 CFR 70.6(g), but
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nonetheless provide for title V
affirmative defenses.31 In any case, the
EPA invites comment on whether it may
be necessary for states to revise
programs containing any provisions that
(1) purport to establish an affirmative
defense to enforcement actions 32 and
(2) are included within the state’s part
70 (title V) program regulations.
Anytime the phrases ‘‘affirmative
defense’’ or ‘‘emergency affirmative
defense’’ are used within this section,
these phrases are intended to refer to all
such provisions meeting these criteria.
These criteria are intended to
encompass provisions that initially
would have been approved by the EPA
as consistent with 40 CFR 70.6(g) and
70.4(b)(16). This action would not
directly affect any affirmative defense
provisions arising under other CAA
applicable requirements, or state-only
provisions outside of each state’s
approved part 70 operating permit
programs.
The EPA has begun to compile a
tentative list of affirmative defense
provisions within state programs that
may eventually need to be removed. The
EPA is including this list in the docket
for this proposed rulemaking (EPA–HQ–
OAR–2016–0186) for informational
purposes only; this list is not an official
determination as to the adequacy or
inadequacy of any program provisions.
The EPA seeks comment on whether
there are additional title V affirmative
defense provisions in state regulations
or statutes that we have not yet
identified, and whether any such
provisions would or would not remain
appropriate as part of a state’s approved
title V program if this proposed rule is
finalized.
b. Form of Program Revisions
Because the EPA believes that a large
number of part 70 programs contain
provisions resembling those that the
agency proposes to eliminate, the EPA
anticipates that it will be necessary for
states to initiate conforming revisions to
remove any affirmative defense
provisions from their approved title V
31 For example, affirmative defense provisions
that refer to ‘‘upsets’’ or ‘‘malfunctions’’ rather than
‘‘emergencies’’ would still implicate the same
concerns.
32 Additionally, any state program provisions
based off of 70.6(g) that purport to establish an
‘‘exemption’’ or ‘‘exclusion’’ to emission limitations
(rather than, or in addition to, an affirmative
defense for noncompliance) during emergencies,
upsets, or malfunctions would also likely need to
be removed. To the extent that an emergency
defense is characterized as an exemption, this
would run afoul of the CAA requirement that
emission limitations must apply continuously and
cannot contain exemptions. See Sierra Club v.
Johnson, 551 F.3d 1019 (D.C. Cir. 2008); SSM SIP
Call, 80 FR 33852.
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operating permit programs if the EPA
removes 40 CFR 70.6(g). The EPA seeks
comment on this approach and on other
possible approaches to ensure that state
programs are consistent with the CAA
and the EPA’s part 70 regulations.
However, the EPA does not anticipate
that it would be appropriate for states to
retain affirmative defense provisions
within their approved part 70 programs.
For example, if a state decided, in lieu
of a program revision, to exercise its
discretion to omit or remove affirmative
defense provisions from all future title
V operating permits, the state’s
approved part 70 program would still
contain regulations inconsistent with
the EPA’s part 70 regulations and the
CAA. Further, if an emergency
provision remained in a state’s
approved program, a source could
potentially attempt to invoke the
provision as an affirmative defense
during an enforcement proceeding,
notwithstanding its absence from the
source’s individual title V permit. This
result could undermine the enforcement
of certain permit limitations and would
be inconsistent with the enforcement
structure of the CAA.
Although the EPA expects that most
states would elect to remove the
emergency affirmative defense
provisions from their part 70 program
regulations, states could nonetheless
choose to retain such affirmative
defense provisions within their
permitting regulations as state-only
requirements in certain circumstances.
In that case, states would have to ensure
and make clear to the EPA that any
remaining affirmative defense
provisions are only available for alleged
noncompliance with permit
requirements arising solely from state
law. Ideally, this would involve an
amendment to state regulations to
explicitly clarify the limited
applicability of any remaining
affirmative defense provisions; such a
clarifying amendment could also
effectively serve as an appropriate
revision to the state’s part 70 program.
The EPA solicits comment on whether
and to what extent it would be
appropriate for states to retain state-only
affirmative defense provisions if this
proposed rule is finalized.
Finally, states may also choose to
remove any other provisions that
reference 40 CFR 70.6(g) or similar state
affirmative defense provisions in order
to ensure clarity. These could include,
but are not limited to, state regulations
that incorporate by reference 40 CFR
70.6(g), as well as any associated
definitions, recordkeeping, or reporting
requirements relating to the affirmative
defense provisions affected by this
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rulemaking. States may also wish to
retain a portion of the emergency
provisions, such as the definition of
‘‘emergency’’ or certain reporting
requirements, for purposes of
supporting other regulations that do not
involve an affirmative defense. This
could be appropriate as long as any
remaining provisions could not be
interpreted to provide an affirmative
defense to federally applicable
requirements.
c. Procedure, Timing and Content of
Program Revisions
If this proposed rule is finalized, the
EPA expects that it would be necessary
for any states with approved part 70
operating permit programs that contain
emergency affirmative defense
provisions to remove any such
provisions and submit program
revisions to the EPA within 12 months
after the final rule’s effective date. For
many programs, the EPA does not
anticipate that additional state
legislative authority will be required to
enact these revisions. Therefore, the
EPA believes that 12 months will be
ample time for many states to make
such a straightforward and narrow
program revision. However, the EPA is
considering whether it may be
appropriate to provide individual states
up to 24 months to submit program
revisions if a state demonstrates that
additional legislative authority is
necessary to enact the program
revisions.
If this proposed rule is finalized, the
EPA expects that state program
revisions submitted to the agency
should include a redline version of the
specific changes made to the state’s part
70 regulations to remove any emergency
affirmative defense provisions. States
may, but need not, include as part of
their program revision submittals any
other unrelated revisions to state
program regulations.33 Each state
should also include a brief statement of
the legal authority that authorized this
removal, which could take various
forms depending on the specific
circumstances of each state. Finally, to
address how the program revisions
would be implemented with respect to
individual permits, each state should
also include a schedule for the planned
removal of these provisions from
individual title V operating permits, as
well as a description of the
mechanism(s) that the state plans to use
to remove these existing provisions.
33 The EPA intends that any narrow program
revisions that may be necessary if this rule is
finalized could be expeditiously processed, whether
submitted alone or with other program revisions.
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Further discussion of how these
program revisions should be
implemented in individual permits is
presented in Section V.A.3 of this
document.
The EPA is specifically requesting
comment on these program revision
time frames and procedures from
permitting authorities whose approved
part 70 programs contain affirmative
defense provisions. The EPA solicits
additional comments from states with
title V program provisions that may also
be contained within SIPs as to any
additional revisions that may be
necessary if this rule is finalized.
3. Effect of This Rule on Current and
Future State-Issued Operating Permits
The eventual finalization of this rule
would not have an automatic impact on
sources currently operating under a title
V permit, and any minimal resource
burden to revise permits would likely be
spread over many years. After a state
makes any necessary revisions to its title
V program, the EPA expects that
revisions to operating permits to remove
emergency affirmative defense
provisions would generally occur in the
ordinary course of business as the state
issues new permits or reviews and
revises existing permits. The options
presented in the following subsections
would afford states with the maximum
flexibility to implement these changes
while ensuring predictability for sources
operating under title V permits.
a. Form of Permit Changes
In order to implement program
revisions that may be necessary if this
rule is finalized as proposed, it may be
necessary for states to remove title V
emergency affirmative defense
provisions that are currently included in
any state-issued permits.34
Alternatively, states may choose to
allow sources to retain affirmative
defense provisions in their permits as
state-only provisions. Any such
remaining affirmative defense
provisions must be clearly labeled
within each permit as not applicable for
federal law purposes to ensure that they
are not available in enforcement actions
for noncompliance with any federally34 It is possible that individual operating permits
may contain other provisions establishing
affirmative defenses that are derived from other
applicable requirements. As previously noted, this
proposed rulemaking will not have any effect on
affirmative defense provisions promulgated under
any CAA requirements other than 40 CFR 70.6(g)
and 71.6(g). However, the source of such affirmative
defense provisions should be clearly stated in each
individual operating permit, to avoid confusion
about the scope of such provisions.
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enforceable emission limitations, as
required by 40 CFR 70.6(b)(2).
b. Mechanisms and Timing of Permit
Changes
The EPA anticipates that states would
have the flexibility to remove
emergency provisions from title V
permits through a number of different
existing mechanisms, either through
changes to individual permits or
perhaps to multiple permits through
more streamlined processes. As
previously noted, if the proposed action
is finalized, any necessary program
revision submittals should reflect the
planned schedule and mechanism for
these permit changes. The EPA expects
that states will follow the guidelines
discussed in this preamble, but will
consider other plans for revising title V
permits that would not cause undue
delay.
First, states could require that permit
applications address the removal of
emergency provisions during the next
periodic permit renewal, permit
modification, or permit reopening,
including those that occur as the result
of other rulemakings. States using these
mechanisms should ensure that these
changes occur at the first possible
occasion; in other words, the first
situation in which the permitting
authority must act on an individual
permit after state program revisions are
approved by the EPA. Moreover,
because states have never been required
by federal law to include these
provisions in state-issued title V
permits, the EPA also encourages states
to exercise their discretion to cease
including emergency affirmative
defense provisions as early as
practicable. In many cases, there will be
no reason for states to wait for the EPA
to take final action on this proposal to
begin implementing this suggestion.35
Additionally, sources may apply for a
permit modification from their
permitting authority at any time. The
EPA anticipates that the removal of an
emergency affirmative defense would
not trigger the significant modification
procedures under 40 CFR 70.7(e)(4),
and—depending on the regulations in
each state’s approved title V program—
could be implemented using minor
modification procedures. Finally,
depending on the unique structure of
each state’s operating permit program,
some states may also be able to remove
these provisions from multiple existing
permits in a single action, via
35 Of course, if currently-approved state program
regulations require that this provision be included
within individual title V operating permits, a state
may not be able to exercise this discretion until
program revisions are completed.
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mechanisms such as general permits or
permits-by-rule. The EPA is requesting
comment on how states could use
existing permitting options to remove
emergency affirmative defense
provisions from title V permits in a
more streamlined and expeditious
manner.
Overall, the EPA believes that
addressing the omission or removal of
emergency affirmative defense
provisions from permits according to
the existing state program mechanisms
described in this subsection affords
states sufficient flexibility to implement
these changes and provides certainty to
facilities operating under title V
permits. Under the approaches currently
being considered, the EPA anticipates
that the removal of affirmative defense
provisions from permits should
generally occur in the ordinary course of
business and should require essentially
no additional burden on states or
sources. The timing for these changes
may coincide with similar changes to
operating permits based on revised SIP
provisions following the SSM SIP Call
or changes to other applicable
requirements, and it may be convenient
and efficient for states to make all
necessary changes to title V permits at
the same time.
B. Implementing These Changes in the
Part 71 Federal Operating Permit
Program
Although the title V operating permit
program is typically implemented by
state and local permitting authorities
through EPA-approved part 70
programs, in certain circumstances the
EPA has assumed direct permitting
authority over sources through its part
71 program. The EPA administers the
part 71 federal program in most areas of
Indian country (however, one tribe—the
Southern Ute Tribe—has an approved
part 70 program, and another—the
Navajo Nation—has been delegated part
71 implementation authority),36 on the
Outer Continental Shelf (where there is
no state permitting authority), as well as
for specific sources where the EPA has
determined that a state has not
adequately implemented its part 70
program or satisfied an EPA objection to
a permit.
In some cases where the EPA
administers its part 71 program, the EPA
has included in its federally-issued
operating permits the emergency
36 The EPA has delegated a portion of its part 71
permitting authority to the Navajo Nation EPA
(NNEPA) through a delegation agreement, such that
NNEPA assumes the responsibility for specific
aspects of program administration under the part 71
regulations, including the authority to issue part 71
operating permits to sources.
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38653
affirmative defense provision found in
40 CFR 71.6(g). If 40 CFR 71.6(g) is
removed, the federal (including
delegated) program rules would no
longer include regulatory authority for
incorporating this emergency
affirmative defense in permits.
Therefore, in order to ensure that part
71 programs are implemented consistent
with the proposed revisions to the part
71 regulations, the EPA or delegated
permitting authority should remove
emergency affirmative defense
provisions that are currently included in
title V permits at the next permit action
following the effective date of the final
rule. Because the EPA has always
considered the emergency provisions to
be discretionary permit terms, the EPA
has omitted emergency affirmative
defense provisions from part 71 permits
that it has issued since the D.C. Circuit’s
2014 NRDC v. EPA decision. The EPA
plans to continue to exercise its
discretion to not include emergency
affirmative defense provisions in future
EPA-issued operating permits.
C. Effect on Sources Potentially Subject
to Enforcement Proceedings
The legal rights and obligations of
individual sources potentially subject to
enforcement proceedings would not be
adversely affected by the removal of
emergency affirmative defense
provisions from their title V permits.37
The absence of an affirmative defense
provision in a source’s title V permit
does not mean that all exceedances of
emission limitations in a title V permit
will automatically be subject to
enforcement or automatically be subject
to imposition of particular remedies.
Pursuant to the CAA, all parties with
authority to bring an enforcement action
to enforce title V permit provisions (i.e.,
the state, the EPA, or any parties who
qualify under the citizen suit provision
of CAA section 304) have enforcement
discretion that they may exercise as they
deem appropriate in any given
circumstances. For example, if the
excess emissions caused by an
emergency occurred despite proper
operation of the facility, and despite the
permittee taking all reasonable steps to
minimize excess emissions, then these
parties may decide that no enforcement
action is warranted. In the event that
any party decides that an enforcement
action is warranted, then it has
enforcement discretion with respect to
what remedies to seek from the court for
the violation (e.g., injunctive relief,
37 The removal of these provisions from
individual operating permits has similar
implications to sources as the removal of the SSM
provisions subject to the SSM SIP Call. See SSM
SIP Call, 80 FR 33852.
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compliance order, monetary penalties,
or all of the above), as well as the type
of injunctive relief and/or amount of
monetary penalties sought.38
Further, courts have the discretion
under section 113 to decline to impose
penalties or injunctive relief in
appropriate cases. In the event of an
enforcement action for an exceedance of
an emission limit in a title V permit, a
source can elect to assert any common
law or statutory defenses that it
determines are supported, based upon
the facts and circumstances surrounding
the alleged violation. Under sections
304(a) and 113(b), courts have authority
to impose injunctive relief, issue
compliance orders, assess monetary
penalties or fees and award any other
appropriate relief. Under section 113(e),
courts are required to consider the
enumerated factors when assessing
monetary penalties, including the
source’s compliance history, good faith
efforts to comply the duration of the
violation, and ‘‘such other factors as
justice may require.’’ If the exceedance
of the emission limitation occurs due to
an emergency, the source retains the
ability to defend itself in an
enforcement action and to oppose the
imposition of particular remedies or to
seek the reduction or elimination of
monetary penalties, based on the
specific facts and circumstances of the
emergency event. Thus, elimination of
an emergency affirmative defense
provision that purported to take away
the statutory jurisdiction of the court to
exercise its authority to impose
remedies does not disarm sources in
potential enforcement actions. Sources
would retain all of the equitable
arguments they previously could have
made; they must simply make such
arguments to the reviewing court as
envisioned by Congress in section
113(b) and section 113(e). Congress
vested the courts with the authority to
judge how best to weigh the evidence in
an enforcement action and determine
appropriate remedies.
The eventual removal of such
impermissible emergency affirmative
defense provisions from state operating
permit programs and individual title V
permits will likely be necessary to
preserve the enforcement structure of
the CAA, to preserve the authority of
courts to adjudicate questions of
liability and remedies in judicial
enforcement actions, and to preserve the
potential for enforcement by states, the
EPA, and other parties under the citizen
suit provision as an effective deterrent
to violations. In turn, this deterrent
encourages sources to be properly
designed, maintained, and operated
and, in the event of violation of
permitted emission limitations, to take
appropriate action to mitigate the
impacts of the violation. In this way, as
intended by the existing enforcement
structure of the CAA, sources can
mitigate the potential for enforcement
actions against them and the remedies
that courts may impose upon them in
such enforcement actions, based upon
the facts and circumstances of the event.
38 The EPA notes that only the state and the EPA
have authority to seek criminal penalties for
knowing and intentional violation of CAA
requirements. The EPA has this explicit authority
under section 113(c).
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
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VI. Environmental Justice
Considerations
The EPA believes the human health or
environmental risk addressed by this
proposed action would not have
potential disproportionately high and
adverse human health or environmental
effects on minority, low-income or
indigenous populations because it
would not adversely affect the level of
protection provided to human health or
the environment. This action simply
proposes to remove emergency
affirmative defense provisions from the
EPA’s operating permit program
regulations. If the proposed rule is
finalized, it may also be necessary for
state, local and tribal permitting
authorities to remove similar affirmative
defense provisions from program
regulations and from individual title V
operating permits. None of these
changes would alter the obligations of
sources to comply with the emission
limits and other standards contained
within title V operating permits.
However, this proposed rulemaking
could encourage sources to comply with
the terms of their operating permits at
all times to the maximum extent
practicable. This could potentially
result in improved air quality for
communities living near sources of air
pollution as well as the broader
population. Thus, this proposed
rulemaking will not adversely affect the
level of protection to human health or
the environment for any populations.
VII. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
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B. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden under the
PRA. OMB has previously approved the
information collection activities
contained in the existing regulations
and has assigned OMB control numbers
2060–0243 (for part 70 state operating
permit programs) and 2060–0336 (for
part 71 federal operating permit
program). In this action, the EPA is
proposing to remove certain provisions
from the EPA’s regulations, which if
finalized could result in the removal of
similar provisions from state, local, and
tribal operating permit programs and
individual permits. Consequently, states
could eventually be required to submit
program revisions to the EPA outlining
any necessary changes to their
regulations and their plans to remove
provisions from individual permits.
However, this proposed action will not
involve any requests for information,
recordkeeping or reporting
requirements, or other requirements that
would constitute an information
collection under the PRA.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. This proposed action
will not impose any requirements on
small entities. Entities potentially
affected directly by this proposal
include state, local, and tribal
governments, and none of these
governments would qualify as a small
entity. Other types of small entities,
including stationary sources of air
pollution, are not directly subject to the
requirements of this action.
D. Unfunded Mandates Reform Act
(URMA)
This action does not contain an
unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C.
1531–1538, and does not significantly or
uniquely affect small governments. The
action imposes no enforceable duty on
any state, local or tribal governments or
the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. 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.
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F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action has tribal implications.
However, it will neither impose
substantial direct compliance costs on
federally recognized tribal governments,
nor preempt tribal law. One tribal
government (the Southern Ute Indian
Tribe) currently administers an
approved part 70 operating permit
program, and one tribal government (the
Navajo Nation) currently administers a
part 71 operating permit program
pursuant to a delegation agreement with
the EPA. These tribal governments may
be required to take actions if this
proposed rule is finalized, including
program revisions (for part 70 programs)
and eventual permit revisions, but these
actions will not require substantial
compliance costs. The EPA solicits
comment from affected tribal
governments on the implications of this
proposed rulemaking.
significant regulatory action under
Executive Order 12866.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
The EPA interprets Executive Order
13045 as applying only to those
regulatory actions that concern
environmental health or safety risks that
the EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
VIII. Statutory Authority
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H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 because it is not a
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I. National Technology Transfer and
Advancement Act
This rulemaking does not involve
technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes the human health or
environmental risk addressed by this
action will not have potential
disproportionately high and adverse
human health or environmental effects
on minority, low-income or indigenous
populations because it does not affect
the level of protection provided to
human health or the environment. The
results of this evaluation are contained
in Section VI of this document titled,
‘‘Environmental Justice
Considerations.’’
The statutory authority for this
proposed action is provided in CAA
sections 502(b) and 502(d)(3), 42 U.S.C.
7661a(b) & (d)(3), which direct the
Administrator of the EPA to promulgate
regulations establishing state operating
permit programs and give the
Administrator the authority to establish
a federal operating permit program.
Additionally, the Administrator
determines that this action is subject to
the provisions of CAA section 307(d),
which establish procedural
requirements specific to rulemaking
under the CAA. CAA section
307(d)(1)(V) provides that the
provisions of CAA section 307(d) apply
to ‘‘such other actions as the
Administrator may determine.’’ 42
U.S.C. 7607(d)(1)(V).
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38655
List of Subjects
40 CFR Part 70
Environmental protection,
Administrative practice and procedure,
Air pollution control, Intergovernmental
relations, Reporting and recordkeeping
requirements.
40 CFR Part 71
Environmental protection,
Administrative practice and procedure,
Air pollution control, Reporting and
recordkeeping requirements.
Dated: June 3, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the
preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
PART 70—STATE OPERATING PERMIT
PROGRAMS
1. The authority citation for part 70
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
§ 70.6
■
[Amended]
2. In § 70.6, remove paragraph (g).
PART 71—FEDERAL OPERATING
PERMIT PROGRAMS
3. The authority citation for part 71
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
§ 71.6
■
[Amended]
4. In § 71.6, remove paragraph (g).
[FR Doc. 2016–14104 Filed 6–13–16; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 81, Number 114 (Tuesday, June 14, 2016)]
[Proposed Rules]
[Pages 38645-38655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14104]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[EPA-HQ-OAR-2016-0186; FRL-9947-56-OAR]
RIN 2060-AS96
Removal of Title V Emergency Affirmative Defense Provisions From
State Operating Permit Programs and Federal Operating Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
remove the affirmative defense provisions for emergencies found in the
regulations for state and federal operating permit programs. These
provisions establish an affirmative defense that sources can assert in
civil enforcement cases when noncompliance with certain emission
limitations in operating permits occurs because of qualifying
``emergency'' circumstances. These provisions, which have never been
required elements of state operating permit programs, are being removed
because they are inconsistent with the enforcement structure of the
Clean Air Act (CAA) and recent court decisions from the U.S. Court of
Appeals for the D.C. Circuit. The removal of these provisions is
consistent with other recent EPA actions involving affirmative defenses
and would harmonize the enforcement and implementation of emission
limitations across different CAA programs. The EPA is also taking
comment on various implementation consequences relating to the proposed
removal of the emergency affirmative defense provisions.
DATES:
Comments. Comments must be received on or before August 15, 2016.
Public Hearing: If anyone contacts the EPA requesting a public
hearing on or before June 29, 2016, the EPA will hold a hearing.
Additional information about the hearing, if requested, will be
published in a subsequent Federal Register document.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2016-0186, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential
[[Page 38646]]
Business Information (CBI) or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the Web,
Cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For general information, please
contact Mr. Matthew Spangler, U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards, Air Quality Planning
Division (C504-05), Research Triangle Park, NC 27711; telephone number:
(919) 541-0327; email address: spangler.matthew@epa.gov. To request a
public hearing or information pertaining to a public hearing on this
document, contact Ms. Pamela Long, U.S. Environmental Protection
Agency, Office of Air Quality Planning and Standards, Air Quality
Planning Division (C504-01), Research Triangle Park, NC 27711;
telephone number (919) 541-0641; fax number (919) 541-5509; email
address: long.pam@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How is this Federal Register notice organized?
The information presented in this preamble is organized as follows:
I. General Information
A. How is this Federal Register notice organized?
B. Does this action apply to me?
C. What should I consider as I prepare my comments for the EPA?
D. How can I find information about a possible public hearing?
E. Where can I get a copy of this document and other related
information?
II. Overview of Action
III. Background
A. Regulatory History of 40 CFR 70.6(g) and 71.6(g)
B. Subsequent Legal and Regulatory History Supporting This
Action
IV. Proposed Changes to Part 70 and Part 71 Regulations
A. Purpose of This Proposed Rulemaking
B. Proposed Action: Removal of 40 CFR 70.6(g) and 71.6(g)
C. Legal Justification for Proposed Action
V. Implementation
A. Implementing These Changes in Part 70 State Operating Permit
Programs
B. Implementing These Changes in the Part 71 Federal Operating
Permit Program
C. Effect on Sources Potentially Subject to Enforcement
Proceedings
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (URMA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
VIII. Statutory Authority
B. Does this action apply to me?
Entities potentially affected by this proposed rulemaking include
federal, state, local and tribal air pollution control agencies that
administer title V operating permit programs \1\ and owners and
operators of emissions sources in all industry groups who hold or apply
for title V operating permits.
---------------------------------------------------------------------------
\1\ This preamble makes frequent use of the term ``state,''
usually meaning the state air pollution control agency that serves
as the permitting authority. The use of the term ``state'' also
applies to local and tribal air pollution control agencies, where
applicable.
---------------------------------------------------------------------------
C. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI
Do not submit CBI to the EPA through https://www.regulations.gov or
email. Clearly mark the part or all of the information that you claim
to be CBI. For CBI information in a disk or CD-ROM that you mail to the
EPA, mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
2. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions. The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
D. How can I find information about a possible public hearing?
If anyone contacts the EPA requesting a public hearing on or before
June 29, 2016, the EPA will hold a hearing. If requested, further
details concerning a public hearing for this proposed rule will be
published in a subsequent Federal Register document. For updates and
additional information on a public hearing, please check the EPA's Web
page at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.
E. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.
II. Overview of Action
The EPA has promulgated permitting regulations for the operation of
major and certain other sources of air pollutants under title V of the
CAA. These regulations are codified in 40 CFR parts 70 and 71, which
contain the requirements for state operating permit programs and the
federal operating
[[Page 38647]]
permit program, respectively. These regulations currently contain
identical provisions setting forth an affirmative defense to
enforcement actions brought for noncompliance with technology-based
emission limitations under specific ``emergency'' circumstances. See 40
CFR 70.6(g) and 71.6(g).
In this action, the EPA is proposing to remove the emergency
affirmative defense provisions in 40 CFR 70.6(g) and 71.6(g) because
they are inconsistent with the EPA's current interpretation of the
CAA's enforcement structure and recent court decisions from the U.S.
Court of Appeals for the D.C. Circuit. These provisions have never been
required elements of state operating permit programs. The removal of
these provisions is consistent with other recent EPA actions involving
affirmative defenses and would help harmonize the enforcement and
implementation of emission limitations across different CAA programs.
If the EPA takes final action to remove these provisions from 40
CFR 70.6(g), it may be necessary for any states that have adopted
similar affirmative defense provisions into their part 70 operating
permit programs to revise their program regulations to remove these
provisions. In addition, the EPA expects that these states would
coordinate revisions of individual operating permits that contain
similar provisions.
III. Background
A. Regulatory History of 40 CFR 70.6(g) and 71.6(g)
In 1990, Congress amended the CAA and established, among other
things, title V of the CAA, which contains a national operating permit
program for certain stationary sources of air pollution. See CAA
sections 501-503, Public Law 101-549 (1990) (codified at 42 U.S.C.
7661-7661b). Shortly thereafter, and pursuant to CAA section 502(b),
the EPA promulgated regulations implementing title V of the CAA. The
first set of regulations, finalized in 1992 and codified at 40 CFR part
70 (the part 70 regulations), governs state operating permit programs
and provides for states to develop and submit to the EPA programs for
issuing operating permits for major and certain other stationary
sources of air pollution.\2\ Pursuant to CAA section 502(d)(3), the EPA
promulgated a second set of regulations in 1996, found at 40 CFR part
71 (the part 71 regulations), which outlines the federal operating
permit program.\3\ Both sets of regulations contain identical
affirmative defense provisions, which are addressed by this action.
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\2\ Operating Permit Program, Final Rule, 57 FR 32250 (July 21,
1992).
\3\ Federal Operating Permits Program, Final Rule, 61 FR 34202
(July 1, 1996).
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Title V of the CAA does not contain any provisions concerning an
affirmative defense mechanism for emergencies. When the EPA first
proposed its part 70 regulations in 1991, the agency did not include
any such provisions.\4\ However, the EPA received comments specifically
requesting that the part 70 regulations make some provision for
``emergencies'' or ``upsets'' caused by the failure of emission control
equipment. In promulgating the final part 70 regulations for state
operating permit programs, the EPA included Sec. 70.6(g), which
contains an affirmative defense for ``emergencies.'' \5\ When the EPA
promulgated its part 71 regulations in 1996, it adopted an identical
provision in Sec. 71.6(g), in order to maintain consistency between
the state and federal operating permit programs.\6\ The text of
sections 70.6(g) and 71.6(g) has not changed since initially
promulgated.
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\4\ Operating Permit Program, Proposed Rule, 56 FR 21712 (May
10, 1991).
\5\ Operating Permit Program, Final Rule, 57 FR 32279. The EPA
explained that the provision was intended to provide operational
flexibility, and was modeled on a similar National Pollutant
Discharge Elimination System (NPDES) permit provision in 40 CFR
122.41. Id.
\6\ Federal Operating Permits Program, Final Rule, 61 FR 34219
(July 1, 1996).
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The title V emergency provisions establish an affirmative defense.
A stationary source of air pollution can assert this affirmative
defense in an enforcement case to avoid liability for noncompliance
with technology-based emission limits contained in the source's title V
permit. In order to use this affirmative defense and avoid liability,
the source must demonstrate that any excess emissions occurred as the
result of an ``emergency,'' as defined in the regulations, and make a
number of other demonstrations specified in the regulations. See 40 CFR
70.6(g) and 71.6(g). These title V affirmative defense provisions apply
in addition to, and independently from, any emergency or upset
provisions contained in other applicable CAA requirements.
Sections 70.6(g) and 70.4(b)(16) form the basis for similar
affirmative defense provisions contained in state operating permit
programs and for similar provisions contained in individual state-
issued operating permits. Section 71.6(g) provides the authority to
include this emergency provision in operating permits issued by the EPA
or by states with delegated authority under part 71.
Such emergency affirmative defense provisions are not required
program elements. States have never been obligated to include the Sec.
70.6(g) affirmative defense provision in their part 70 operating permit
programs; instead, the provision has always been discretionary.\7\
Similarly, although the emergency affirmative defense provision is
located within the ``Permit Content'' section of the part 70 and part
71 regulations, the EPA does not consider the provision to be a
required permit term.\8\ Thus, the EPA considers the emergency
provision to be a discretionary element of both state permitting
programs as well as individual operating permits.
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\7\ Operating Permits Program and Federal Operating Permits
Program, Proposed Rule [Title V Supplemental Proposal], 60 FR 45530,
45558 (August 31, 1995) (``At the outset, EPA wants to make clear
that the part 70 rule does not require that States adopt the
emergency defense. A State may include such a defense in its part 70
program to the extent it finds appropriate, although it may not
adopt an emergency defense less stringent than that set forth at
section 70.6(g). . . . [T]he Act in sections 116 and 506(a)
authorizes States to establish additional or more stringent air
pollution control or permitting requirements. Consistent with that,
States may decide to provide an emergency defense that is narrower
in scope or more stringent in application than Sec. 70.6(g) or no
defense at all.'').
\8\ See State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction, Final Action [SSM SIP Call], 80 FR 33839,
33924 (June 12, 2015) (``[A]s part of normal permitting process, the
EPA encourages permitting authorities to consider the discretionary
nature of the emergency provisions when determining whether to
continue to include permit terms modeled on those provisions in
operating permits that the permitting authorities are issuing in the
first instance or renewing'').
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B. Subsequent Legal and Regulatory History Supporting This Action
The EPA has considered the most appropriate ways to account for
excess emissions during different modes of source operation, such as
startup and shutdown, and emissions during emergencies, upsets, and
malfunctions for more than 40 years. The EPA's policies regarding the
emergency affirmative defense provisions in its part 70 and 71
regulations have been shaped by a number of factors, including the
structure of the CAA, federal court decisions, experience with similar
provisions in other EPA programs, and recommendations from
stakeholders. This section summarizes some of the more relevant and
recent legal, regulatory, and policy considerations informing the EPA's
current policy on affirmative defense provisions, including the D.C.
Circuit's opinion in NRDC v. EPA and the EPA's recent
[[Page 38648]]
experience with affirmative defenses for startup, shutdown, and
malfunction (SSM) events in State Implementation Plans (SIPs).
1. D.C. Circuit Opinion in NRDC v. EPA
In the 2014 NRDC v. EPA \9\ case, the United States Court of
Appeals for the D.C. Circuit vacated an affirmative defense provision
applicable to malfunction events. In 2010, the EPA included an
affirmative defense within its National Emission Standards for
Hazardous Air Pollutants (NESHAP) for Portland cement facilities,
promulgated under CAA section 112.\10\ This provision created an
affirmative defense that sources could assert in civil enforcement
proceedings when violations of emission limitations occurred because of
qualifying unavoidable malfunctions. The D.C. Circuit held that this
affirmative defense provision exceeded the EPA's statutory authority
and that only the courts have the authority to decide whether to assess
penalties for violations in civil suits. As the court explained:
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\9\ 749 F.3d 1055 (D.C. Cir. 2014).
\10\ National Emission Standards for Hazardous Air Pollutants
From the Portland Cement Manufacturing Industry and Standards of
Performance for Portland Cement Plants, 75 FR 54993 (September 9,
2010).
By its terms, Section 304(a) clearly vests authority over
private suits in the courts, not EPA. As the language of the statute
makes clear, the courts determine, on a case-by-case basis, whether
civil penalties are ``appropriate.'' By contrast, EPA's ability to
determine whether penalties should be assessed for Clean Air Act
violations extends only to administrative penalties, not to civil
penalties imposed by a court. . . . [U]nder this statute, deciding
whether penalties are ``appropriate'' in a given private civil suit
is a job for the courts, not for EPA.'' \11\
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\11\ NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
The D.C. Circuit therefore concluded that the EPA lacked the
authority to create an affirmative defense in private civil suits that
would purport to alter the jurisdiction of the court to assess civil
penalties for violations. Although this case was based on EPA
regulations promulgated under CAA section 112, the court's holding was
not based on section 112, but rather on sections 304(a) and 113(e)(1).
Therefore, and as discussed further in Section IV of this document, the
EPA interprets the decision to be relevant to all similar affirmative
defense provisions, such as those found in part 70 and part 71, that
may interfere with the authority of courts to assess penalties or to
impose other remedies authorized in CAA section 113(b) in civil
enforcement suits. This proposed rulemaking seeks to ensure that the
EPA's part 70 and part 71 regulations are consistent with the
enforcement structure of the CAA in accordance with the reasoning of
the NRDC v. EPA decision.\12\
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\12\ In 2008, the D.C. Circuit issued a decision in Sierra Club
v. Johnson, 551 F.3d 1019, vacating the EPA's regulations that
exempted sources under certain circumstances from emissions
standards during periods of SSM. The EPA maintains that the part 70
and part 71 emergency affirmative defense provisions are just that--
affirmative defenses to enforcement actions--not exemptions from
otherwise applicable emissions limitations. Such affirmative defense
provisions are called into question by NRDC v. EPA. However, to the
extent that the title V emergency affirmative defense could be
considered in some respects to function like an exemption from
otherwise applicable emissions limitations, such an exemption would
be incompatible with the CAA and Sierra Club v. Johnson. This is an
alternative basis for proposing to remove the part 70 and part 71
emergency affirmative defense provisions, as discussed further in
Section IV.C of this document.
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2. SSM SIP Call
The EPA has also reconsidered affirmative defense provisions
similar to those involved in the NRDC v. EPA case in other recent
regulatory actions. On June 15, 2015, the EPA issued a ``SIP Call''
(the SSM SIP Call) finding that certain SIP provisions in 36 states are
substantially inadequate to meet CAA requirements.\13\ Many of the
deficient SIP provisions at issue in the SSM SIP call are affirmative
defense type provisions, and some of them are analogous to the
emergency affirmative defense in part 70 and part 71. Although the
agency's SSM policy for SIP provisions is not directly at issue in this
proposal, certain aspects of the SSM SIP Call are especially relevant
and are discussed in this subsection.
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\13\ SSM SIP Call, 80 FR 33839 (June 12, 2015).
---------------------------------------------------------------------------
After the EPA initially proposed the SSM SIP Call,\14\ the D.C.
Circuit issued its opinion in NRDC v. EPA. That decision, which
concerned the legal basis for an affirmative defense provision in the
EPA's own regulations, caused the EPA to reconsider the legal basis for
any affirmative defense provisions contained in SIPs.\15\ The EPA
concluded that the logic of the court in NRDC v. EPA extends beyond CAA
section 112 to affirmative defense provisions contained in SIPs.
Therefore, the EPA clarified and revised its interpretation of CAA
requirements with respect to affirmative defense provisions for SSM
events. The agency explained that ``the enforcement structure of the
CAA, embodied in section 113 and section 304, precludes any affirmative
defense provisions that would operate to limit a court's jurisdiction
or discretion to determine the appropriate remedy in an enforcement
action. These provisions are not appropriate under the CAA, no matter
what type of event they apply to, what criteria they contain or what
forms of remedy they purport to limit or eliminate.'' \16\ The EPA
explained that ``[a]ffirmative defense provisions by their nature
purport to limit or eliminate the authority of federal courts to
determine liability or to impose remedies through factual
considerations that differ from, or are contrary to, the explicit
grants of authority in section 113(b) and section 113(e).'' \17\ The
EPA's interpretation of the CAA's enforcement structure and the NRDC v.
EPA decision, as set forth in the final SSM SIP Call, is relevant to
the current rulemaking. Section IV of this document further discusses
this interpretation in the context of the part 70 and part 71 emergency
provisions.
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\14\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, Proposed Rule, 78 FR 12459
(February 22, 2013).
\15\ See State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction; Supplemental Proposal To Address
Affirmative Defense Provisions in States Included in the Petition
for Rulemaking and in Additional States, Supplemental notice of
proposed rulemaking [SSM SIP Call Supplemental Proposal], 79 FR
55919, 55929 (September 17, 2014).
\16\ SSM SIP Call, 80 FR 33851 (June 12, 2015).
\17\ Id. at 33852.
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Following this interpretation, the EPA directed states to remove
specifically identified provisions containing affirmative defenses from
their SIPs. Some of these SSM provisions were similar to the emergency
provisions in the EPA's part 70 and part 71 regulations. In the final
SSM SIP Call, the EPA indicated that provisions modeled after the
Sec. Sec. 70.6(g) and 71.6(g) emergency affirmative defense
provisions--including provisions that were more narrowly defined--were
no longer consistent with the EPA's interpretation of the CAA and could
not be included in SIPs.\18\ For example, the EPA found that an
Arkansas SIP provision establishing an affirmative defense for
emergencies, which may have been modeled after the EPA's title V
regulations, was substantially inadequate to meet CAA requirements.\19\
The EPA also discussed the potential conflict between the SSM policy
applicable to SIP provisions and the part 70 and part 71 emergency
provisions, but noted that it was not taking action to revise the title
V
[[Page 38649]]
regulations in the SSM SIP Call rulemaking.\20\ In the final SSM SIP
Call, however, the EPA indicated that it was considering whether such
changes may be necessary and how best to make such changes.
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\18\ Id. at 33924.
\19\ Id. at 33967; see also SSM SIP Call Supplemental Proposal,
79 FR 55942 and 55943.
\20\ SSM SIP Call, 80 FR 33924 (June 12, 2015).
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3. Related Actions in Other CAA Program Areas
Since 2014, the EPA has removed or omitted affirmative defense
provisions in numerous regulations throughout other CAA program areas
following the NRDC v. EPA case. Specifically, in newly issued and
revised New Source Performance Standards (NSPS), emission guidelines
for existing sources, and NESHAP regulations, the EPA has either
omitted new affirmative defense provisions or removed existing
affirmative defense provisions.\21\ This proposed rulemaking for the
part 70 and part 71 regulations is thus consistent with these related
efforts in other CAA program areas and ensures that title V operating
permits do not contain additional affirmative defenses that could
interfere with the EPA's efforts to remove these impermissible
provisions from specific underlying applicable requirements.
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\21\ See, e.g., National Emission Standards for Hazardous Air
Pollutants for the Portland Cement Manufacturing Industry and
Standards of Performance for Portland Cement Plants; Final Rule, 80
FR 44771 (July 27, 2015); National Emission Standards for Hazardous
Air Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters; Final Rule, 80 FR 72789
(November 20, 2015); Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Commercial and
Industrial Solid Waste Incineration Units; Proposed Rule, 80 FR
3018, 3025 (January 21, 2015).
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IV. Proposed Changes to Part 70 and Part 71 Regulations
A. Purpose of This Proposed Rulemaking
This proposed rulemaking is responsive to a number of concerns and
related actions, including those discussed in Section III of this
document. The EPA considers this proposed rulemaking important to
ensure that the EPA's title V regulations are consistent with the
enforcement structure envisioned by Congress in the 1990 CAA
amendments. This action is intended to respond to the reasoning of the
D.C. Circuit's recent opinion in NRDC v. EPA, which the EPA interprets
to extend to the affirmative defense provisions in the part 70 and part
71 regulations. This proposed rule also follows from similar regulatory
actions in other CAA program areas, including the recent SSM SIP Call
and various NSPS and NESHAP regulations. The EPA considers the proposed
removal of the emergency affirmative defense provisions from the title
V regulations necessary to maintain a consistent interpretation of the
CAA throughout different CAA programs, including section 110 SIPs,
section 111 NSPS and existing source guidelines, and section 112
NESHAPs.
Finally, this proposed action follows from the EPA's stated
intentions to revisit the emergency affirmative defense provisions
promulgated in 1992 and seeks to provide clarity in response to
stakeholder concerns.\22\ The EPA initially sought to clarify the scope
of the emergency provisions over the course of multiple actions in 1995
and 1996. However, the EPA ultimately indicated that it would
reevaluate the part 70 and part 71 emergency affirmative defense
provisions--including whether these provisions may need to be
eliminated--in a subsequent rulemaking.\23\ The EPA again discussed the
title V emergency provisions in the SSM SIP Call, where the agency
acknowledged the potential conflict between the SSM policy applicable
to SIP provisions and the part 70 and part 71 emergency provisions, but
indicated that it would potentially make changes to the title V
affirmative defense provisions in a subsequent rulemaking.\24\ As
contemplated in the prior title V rulemakings and in the more recent
SSM SIP Call, the EPA is now considering the appropriate changes to
parts 70 and 71 and proposing to remove the title V emergency
affirmative defenses provisions.
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\22\ In addition to comments received on prior regulatory
actions, the EPA has received input from stakeholders as recent as
2006. The Clean Air Act Advisory Committee (CAAAC), chartered under
the Federal Advisory Committee Act, was established to advise the
EPA on issues related to the 1990 CAA Amendments. In 2006, a Task
Force formed by the CAAAC issued its Final Report: Title V
Implementation Experience. See Title V Task Force, Final Report to
the Clean Air Act Advisory Committee: Title V Implementation
Experience (April 2006), available at https://www.epa.gov/sites/production/files/2014-10/documents/title5_taskforce_finalreport20060405.pdf. Although the Task Force
did not agree on how broadly the title V emergency affirmative
defense should be applied, all eighteen members of the Task Force
unanimously recommended the following: ``Title V permits should be
clear as to which limits are subject to the part 70 emergency
defense (e.g., under the current rule, technology based limits).''
Id. at 144. By way of response, the proposed action to remove these
provisions would essentially moot these concerns about clarity on
the applicability of these provisions.
\23\ See Federal Operating Permits Program, Proposed Rule, 60 FR
20804, 20816 (April 27, 1995) (``The EPA is reevaluating the
provisions in parts 70 and 71 relating to the emergency defense in
light of concerns identified in legal challenges to the part 70
rule. The EPA may propose revisions to the part 70 and part 71
sections providing for the emergency defense before EPA would
include such defense in any part 71 permits.''); Title V
Supplemental Proposal, 60 FR 45560 (``The EPA is reluctant to retain
a generally applicable emergency defense without completing further
review of the appropriateness of such a defense for the different
Federal technology based standards in light of the concerns with
such a defense raised in the CWA cases.''); Federal Operating
Permits Program, Final Rule, 61 FR 34219 (``As a result of concerns
identified in legal challenges to part 70, the Agency, in the August
1995 supplemental proposal, solicited comment on the need for, scope
and terms of an emergency affirmative defense provision. The Agency
is reviewing those comments, but has not yet made a decision on
whether or not to modify or remove this additional affirmative
defense provision from part 70.'' (emphasis added)).
\24\ See SSM SIP Call, 80 FR 33924 (``Those regulations [40 CFR
70.6(g) and 71.6(g)], which are applicable to title V operating
permits, may only be changed through appropriate rulemaking to
revise parts 70 and 71. Further, any existing permits that contain
such emergency provisions may only be changed through established
permitting procedures. The EPA is considering whether to make
changes to 40 CFR part 70 and 40 CFR part 71, and if so, how best to
make those changes. In any such action, EPA would also intend to
address the timing of any changes to existing title V operating
permits. Until that time, as part of normal permitting process, the
EPA encourages permitting authorities to consider the discretionary
nature of the emergency provisions when determining whether to
continue to include permit terms modeled on those provisions in
operating permits that the permitting authorities are issuing in the
first instance or renewing.'').
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B. Proposed Action: Removal of 40 CFR 70.6(g) and 71.6(g)
The EPA is proposing to remove the emergency provisions located at
40 CFR 70.6(g) and 71.6(g). The agency has not identified any other
viable option for reconciling these affirmative defense provisions with
the enforcement structure of the CAA, in accordance with the reasoning
of the NRDC v. EPA decision. The implications of this proposed removal
on the federal operating permit program, state operating permit
programs, and on individual sources subject to title V operating
permits are discussed in Section V of this document.
C. Legal Justification for Proposed Action
This action is proposed pursuant to CAA sections 502(b) and
502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), which direct the Administrator
of the EPA to promulgate regulations establishing state operating
permit programs and give the Administrator authority to establish a
federal operating permit program.
The EPA proposes to remove the affirmative defense provisions from
the part 70 and 71 regulations in order to ensure that the federal and
state title V operating permit programs operate within the bounds
established by
[[Page 38650]]
Congress in the 1990 CAA Amendments. Regarding these boundaries, the
D.C. Circuit's opinion in NRDC v. EPA is instructive as to the
enforcement structure envisioned by Congress, as well as the role of
affirmative defense provisions within the EPA's regulations
implementing the CAA. As discussed in Section III.B.1 of this document,
the court in NRDC v. EPA determined that an affirmative defense
provision promulgated by the EPA for the Portland cement industry under
CAA section 112 exceeded the agency's statutory authority. In doing so,
the D.C. Circuit based its holding on CAA sections 304(a) and
113(e)(1).
CAA section 304(a) grants ``any person'' the right to ``commence a
civil action . . . against any person . . . who is alleged to have
violated (if there is evidence that the alleged violation has been
repeated) or to be in violation of . . . an emission standard or
limitation'' under the CAA. 42 U.S.C. 7604(a). Section 304(a) also
provides that ``[t]he [federal] district courts shall have
jurisdiction, without regard to the amount in controversy or the
citizenship of the parties, to enforce such an emission standard or
limitation . . . and to apply any appropriate civil penalties.'' Id.
CAA section 113(e)(1) establishes a number of factors that courts must
consider when determining the amount of any penalties assessed in civil
actions under section 304(a). See 42 U.S.C. 7413(e)(1).
The D.C. Circuit indicated that these statutory provisions
precluded the EPA from promulgating affirmative defense provisions that
a source could use in civil enforcement suits. The court did not remand
the regulation to the EPA for better explanation of the legal basis for
an affirmative defense; the court instead vacated the affirmative
defense and indicated that there could be no valid legal basis for such
a provision because it contradicted fundamental requirements of the CAA
concerning the authority of courts in judicial enforcement of CAA
requirements. As the court explained:
By its terms, Section 304(a) clearly vests authority over
private suits in the courts, not EPA. As the language of the statute
makes clear, the courts determine, on a case-by-case basis, whether
civil penalties are ``appropriate.'' By contrast, EPA's ability to
determine whether penalties should be assessed for Clean Air Act
violations extends only to administrative penalties, not to civil
penalties imposed by a court. . . . [U]nder this statute, deciding
whether penalties are ``appropriate'' in a given private civil suit
is a job for the courts, not for EPA.'' \25\
\25\ NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
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The court also noted that ``EPA cannot rely on its gap-filling
authority to supplement the Clean Air Act's provisions when Congress
has not left the agency a gap to fill.'' \26\
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\26\ Id. at 1064.
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The D.C. Circuit's holding in NRDC v. EPA is especially pertinent
here.\27\ Like the Portland cement NESHAP at issue in the NRDC v. EPA
case, the provisions at issue in this proposal are also regulations
promulgated by the EPA to implement programs under the CAA. The
affirmative defense for malfunctions in the Portland cement NESHAP and
the affirmative defense for emergencies in the EPA's part 70 and part
71 regulations are functionally similar provisions that operate in
essentially identical ways to establish affirmative defenses in civil
enforcement actions. Moreover, the EPA believes that the reasoning of
the court's decision in NRDC v. EPA applies more broadly than to the
specific facts of the case for several reasons. The EPA notes that the
court's decision did not turn upon the specific provisions of CAA
section 112. Although the court only evaluated the legal validity of an
affirmative defense provision created by the EPA in conjunction with
specific standards applicable to manufacturers of Portland cement, the
court based its decision upon the provisions of sections 113 and 304
that pertain to enforcement of CAA requirements more broadly, including
to emission limits in title V permits. Sections 113 and 304 pertain to
administrative and judicial enforcement generally and are in no way
limited to enforcement of emission limitations promulgated by the EPA
under section 112. Thus, the EPA does not think that the mere fact that
the court only addressed the legality of an affirmative defense
provision in this particular context means that the court's
interpretation of sections 113 and 304 does not also apply more
broadly. To the contrary, the EPA sees no reason why the logic of the
court concerning sections 113 and 304 would not apply to the title V
emergency affirmative defense provisions, as well.
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\27\ The EPA's interpretation of the NRDC v. EPA case as it
affects the affirmative defense provisions in parts 70 and 71 is
similar to the interpretation of the case as articulated in the SSM
SIP Call. More information on the EPA's interpretation of the NRDC
v. EPA ruling can be found in the Final SSM SIP Call and the August
2014 Supplemental Proposal. See SSM SIP Call, 80 FR 33851; SSM SIP
Call Supplemental Proposal, 79 FR 55929.
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In light of the court's decision, the EPA now interprets the
enforcement structure of the CAA, embodied in section 113 and section
304, to preclude affirmative defense provisions that would operate to
limit a court's authority or discretion to determine the appropriate
remedy in an enforcement action. CAA section 304(a) grants the federal
district courts the jurisdiction to determine liability and to impose
penalties in enforcement suits brought by citizens. Similarly, section
113(b) provides courts with explicit jurisdiction to determine
liability and to impose remedies of various kinds, including injunctive
relief, compliance orders, and monetary penalties, in judicial
enforcement proceedings. These grants of jurisdiction come directly
from Congress, and the EPA is not authorized to alter or eliminate this
authority under the CAA or any other law. With respect to monetary
penalties, CAA section 113(e) explicitly includes the factors that
courts and the EPA are required to consider in the event of judicial or
administrative enforcement for violations of CAA requirements,
including title V permit provisions. Because Congress has already given
federal courts the authority to determine what monetary penalties are
appropriate in the event of judicial enforcement for a violation of a
title V permit provision, neither the EPA nor states can alter or
eliminate that authority by superimposing restrictions on the authority
and discretion granted by Congress to the courts. Affirmative defense
provisions by their nature purport to limit or eliminate the authority
of federal courts to determine liability or to impose remedies through
factual considerations that differ from, or are contrary to, the
explicit grants of authority in section 113(b) and section 113(e).
Therefore, these provisions are not appropriate under the CAA, no
matter what type of event they apply to, what criteria they contain, or
what forms of remedy they purport to limit or eliminate. This is true
for regulations promulgated under CAA sections 111 and 112, SIP
provisions approved by the EPA, and regulations promulgated under title
V of the CAA. Thus, just as the EPA revisited affirmative defenses in
SIP provisions in light of the NRDC v. EPA opinion, the EPA is
reevaluating its interpretation of the CAA relative to the emergency
affirmative defense provisions contained in its part 70 and part 71
regulations, and is proposing to remove those provisions because they
are not consistent with the CAA's enforcement structure.
Since the 2014 NRDC v. EPA decision, and in order to ensure
consistency with the CAA's enforcement structure, the EPA has been
omitting new affirmative defense provisions and removing existing
[[Page 38651]]
affirmative defense provisions throughout many CAA program areas that
establish emission limitations contained in title V permits. However,
the title V emergency affirmative defense provisions apply regardless
of whether there is an affirmative defense also found in the underlying
applicable requirements. See 40 CFR 70.6(g)(5) and 71.6(g)(5). As a
result, sources could seek to assert this affirmative defense in title
V enforcement cases for noncompliance with emission limitations derived
from applicable requirements that do not otherwise contain such an
affirmative defense for emergencies. The continued existence of the
title V emergency affirmative defense provisions thus contradicts and
compromises the EPA's on-going efforts to ensure that underlying
regulations are applied consistently with the CAA.
The EPA maintains that the part 70 and part 71 emergency
affirmative defense provisions are affirmative defenses to enforcement
actions and are not ``exemptions'' from otherwise applicable emissions
limitations. However, as an alternative but additional justification,
to the extent that the emergency affirmative defense provisions in part
70 and part 71 could be interpreted to establish an exemption or
exclusion from emission limits (rather than merely an affirmative
defense to penalties in the event of a violation), these provisions
would still run contrary to the CAA's requirements and require removal.
As previously noted,\28\ under Sierra Club v. Johnson,\29\ the CAA
requires that emission limitations must apply continuously and cannot
contain exemptions, conditional or otherwise. Therefore, even if
characterized as an exemption or exclusion from otherwise applicable
limits, the emergency affirmative defense provisions would,
nonetheless, run afoul of the CAA and Sierra Club v. Johnson, and
should, on that alternative basis, be removed.
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\28\ See footnote 12.
\29\ 551 F.3d 1019 (D.C. Cir. 2008).
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V. Implementation
A. Implementing These Changes in Part 70 State Operating Permit
Programs
This section discusses the actions that the EPA anticipates state,
local, and tribal permitting authorities \30\ would need to take (if
this proposed rule is finalized in substantially the same form) in
order to ensure that their operating permit programs are consistent
with the proposed revisions to the EPA's part 70 regulations and the
CAA's enforcement structure. The EPA welcomes comments on how best to
address the implementation consequences of the proposed removal of 40
CFR 70.6(g).
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\30\ As noted in footnote 1, the term ``state'' as used
throughout this preamble refers to all state, local and tribal
permitting authorities that administer approved part 70 programs.
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1. Programs That Do Not Contain Emergency Affirmative Defense
Provisions
As discussed in Section III.A of this document, the section 70.6(g)
emergency provision has never been a required element of part 70
operating permit programs. For states that have not adopted the section
70.6(g) emergency provision, or any similar affirmative defense
provision, into their part 70 operating permit programs, no further
action would be required to comply with this rule as proposed. However,
we expect that as a result of this rulemaking, it may be necessary for
states that have adopted an affirmative defense in their part 70
programs to take the actions described in the following subsections.
2. Programs That Contain Emergency Affirmative Defense Provisions
The EPA's existing part 70 regulations provide for state program
revisions if part 70 is revised and the EPA determines that such
conforming changes are necessary. See 40 CFR 70.4(a) and 70.4(i).
Therefore, as a result of this proposed regulatory action to remove 40
CFR 70.6(g) and 71.6(g), state operating permit programs that contain
an emergency affirmative defense may have to take appropriate actions
to remain consistent with the CAA and the EPA's part 70 regulations. As
discussed in more detail in the following subsections, the EPA is
requesting comment on whether revisions to certain approved state
programs may be necessary if the EPA removes 40 CFR 70.6(g) and
71.6(g).
a. Scope of Program Revisions That May Be Necessary if the Rule Is
Finalized as Proposed
Affirmative defense provisions included within a state's part 70
(title V) program regulations--including provisions that are narrower
in scope or more stringent than 40 CFR 70.6(g)--will generally
implicate the same concerns that prompted the EPA to propose removing
70.6(g) and 71.6(g) from the agency's regulations. The EPA expects that
state programs containing provisions that mirror the exact language of
70.6(g) would need to be revised if this proposed rule is finalized, as
would state programs that have provisions that do not exactly mirror
the language of 40 CFR 70.6(g), but nonetheless provide for title V
affirmative defenses.\31\ In any case, the EPA invites comment on
whether it may be necessary for states to revise programs containing
any provisions that (1) purport to establish an affirmative defense to
enforcement actions \32\ and (2) are included within the state's part
70 (title V) program regulations. Anytime the phrases ``affirmative
defense'' or ``emergency affirmative defense'' are used within this
section, these phrases are intended to refer to all such provisions
meeting these criteria. These criteria are intended to encompass
provisions that initially would have been approved by the EPA as
consistent with 40 CFR 70.6(g) and 70.4(b)(16). This action would not
directly affect any affirmative defense provisions arising under other
CAA applicable requirements, or state-only provisions outside of each
state's approved part 70 operating permit programs.
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\31\ For example, affirmative defense provisions that refer to
``upsets'' or ``malfunctions'' rather than ``emergencies'' would
still implicate the same concerns.
\32\ Additionally, any state program provisions based off of
70.6(g) that purport to establish an ``exemption'' or ``exclusion''
to emission limitations (rather than, or in addition to, an
affirmative defense for noncompliance) during emergencies, upsets,
or malfunctions would also likely need to be removed. To the extent
that an emergency defense is characterized as an exemption, this
would run afoul of the CAA requirement that emission limitations
must apply continuously and cannot contain exemptions. See Sierra
Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 2008); SSM SIP Call, 80 FR
33852.
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The EPA has begun to compile a tentative list of affirmative
defense provisions within state programs that may eventually need to be
removed. The EPA is including this list in the docket for this proposed
rulemaking (EPA-HQ-OAR-2016-0186) for informational purposes only; this
list is not an official determination as to the adequacy or inadequacy
of any program provisions. The EPA seeks comment on whether there are
additional title V affirmative defense provisions in state regulations
or statutes that we have not yet identified, and whether any such
provisions would or would not remain appropriate as part of a state's
approved title V program if this proposed rule is finalized.
b. Form of Program Revisions
Because the EPA believes that a large number of part 70 programs
contain provisions resembling those that the agency proposes to
eliminate, the EPA anticipates that it will be necessary for states to
initiate conforming revisions to remove any affirmative defense
provisions from their approved title V
[[Page 38652]]
operating permit programs if the EPA removes 40 CFR 70.6(g). The EPA
seeks comment on this approach and on other possible approaches to
ensure that state programs are consistent with the CAA and the EPA's
part 70 regulations. However, the EPA does not anticipate that it would
be appropriate for states to retain affirmative defense provisions
within their approved part 70 programs. For example, if a state
decided, in lieu of a program revision, to exercise its discretion to
omit or remove affirmative defense provisions from all future title V
operating permits, the state's approved part 70 program would still
contain regulations inconsistent with the EPA's part 70 regulations and
the CAA. Further, if an emergency provision remained in a state's
approved program, a source could potentially attempt to invoke the
provision as an affirmative defense during an enforcement proceeding,
notwithstanding its absence from the source's individual title V
permit. This result could undermine the enforcement of certain permit
limitations and would be inconsistent with the enforcement structure of
the CAA.
Although the EPA expects that most states would elect to remove the
emergency affirmative defense provisions from their part 70 program
regulations, states could nonetheless choose to retain such affirmative
defense provisions within their permitting regulations as state-only
requirements in certain circumstances. In that case, states would have
to ensure and make clear to the EPA that any remaining affirmative
defense provisions are only available for alleged noncompliance with
permit requirements arising solely from state law. Ideally, this would
involve an amendment to state regulations to explicitly clarify the
limited applicability of any remaining affirmative defense provisions;
such a clarifying amendment could also effectively serve as an
appropriate revision to the state's part 70 program. The EPA solicits
comment on whether and to what extent it would be appropriate for
states to retain state-only affirmative defense provisions if this
proposed rule is finalized.
Finally, states may also choose to remove any other provisions that
reference 40 CFR 70.6(g) or similar state affirmative defense
provisions in order to ensure clarity. These could include, but are not
limited to, state regulations that incorporate by reference 40 CFR
70.6(g), as well as any associated definitions, recordkeeping, or
reporting requirements relating to the affirmative defense provisions
affected by this rulemaking. States may also wish to retain a portion
of the emergency provisions, such as the definition of ``emergency'' or
certain reporting requirements, for purposes of supporting other
regulations that do not involve an affirmative defense. This could be
appropriate as long as any remaining provisions could not be
interpreted to provide an affirmative defense to federally applicable
requirements.
c. Procedure, Timing and Content of Program Revisions
If this proposed rule is finalized, the EPA expects that it would
be necessary for any states with approved part 70 operating permit
programs that contain emergency affirmative defense provisions to
remove any such provisions and submit program revisions to the EPA
within 12 months after the final rule's effective date. For many
programs, the EPA does not anticipate that additional state legislative
authority will be required to enact these revisions. Therefore, the EPA
believes that 12 months will be ample time for many states to make such
a straightforward and narrow program revision. However, the EPA is
considering whether it may be appropriate to provide individual states
up to 24 months to submit program revisions if a state demonstrates
that additional legislative authority is necessary to enact the program
revisions.
If this proposed rule is finalized, the EPA expects that state
program revisions submitted to the agency should include a redline
version of the specific changes made to the state's part 70 regulations
to remove any emergency affirmative defense provisions. States may, but
need not, include as part of their program revision submittals any
other unrelated revisions to state program regulations.\33\ Each state
should also include a brief statement of the legal authority that
authorized this removal, which could take various forms depending on
the specific circumstances of each state. Finally, to address how the
program revisions would be implemented with respect to individual
permits, each state should also include a schedule for the planned
removal of these provisions from individual title V operating permits,
as well as a description of the mechanism(s) that the state plans to
use to remove these existing provisions. Further discussion of how
these program revisions should be implemented in individual permits is
presented in Section V.A.3 of this document.
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\33\ The EPA intends that any narrow program revisions that may
be necessary if this rule is finalized could be expeditiously
processed, whether submitted alone or with other program revisions.
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The EPA is specifically requesting comment on these program
revision time frames and procedures from permitting authorities whose
approved part 70 programs contain affirmative defense provisions. The
EPA solicits additional comments from states with title V program
provisions that may also be contained within SIPs as to any additional
revisions that may be necessary if this rule is finalized.
3. Effect of This Rule on Current and Future State-Issued Operating
Permits
The eventual finalization of this rule would not have an automatic
impact on sources currently operating under a title V permit, and any
minimal resource burden to revise permits would likely be spread over
many years. After a state makes any necessary revisions to its title V
program, the EPA expects that revisions to operating permits to remove
emergency affirmative defense provisions would generally occur in the
ordinary course of business as the state issues new permits or reviews
and revises existing permits. The options presented in the following
subsections would afford states with the maximum flexibility to
implement these changes while ensuring predictability for sources
operating under title V permits.
a. Form of Permit Changes
In order to implement program revisions that may be necessary if
this rule is finalized as proposed, it may be necessary for states to
remove title V emergency affirmative defense provisions that are
currently included in any state-issued permits.\34\ Alternatively,
states may choose to allow sources to retain affirmative defense
provisions in their permits as state-only provisions. Any such
remaining affirmative defense provisions must be clearly labeled within
each permit as not applicable for federal law purposes to ensure that
they are not available in enforcement actions for noncompliance with
any federally-
[[Page 38653]]
enforceable emission limitations, as required by 40 CFR 70.6(b)(2).
---------------------------------------------------------------------------
\34\ It is possible that individual operating permits may
contain other provisions establishing affirmative defenses that are
derived from other applicable requirements. As previously noted,
this proposed rulemaking will not have any effect on affirmative
defense provisions promulgated under any CAA requirements other than
40 CFR 70.6(g) and 71.6(g). However, the source of such affirmative
defense provisions should be clearly stated in each individual
operating permit, to avoid confusion about the scope of such
provisions.
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b. Mechanisms and Timing of Permit Changes
The EPA anticipates that states would have the flexibility to
remove emergency provisions from title V permits through a number of
different existing mechanisms, either through changes to individual
permits or perhaps to multiple permits through more streamlined
processes. As previously noted, if the proposed action is finalized,
any necessary program revision submittals should reflect the planned
schedule and mechanism for these permit changes. The EPA expects that
states will follow the guidelines discussed in this preamble, but will
consider other plans for revising title V permits that would not cause
undue delay.
First, states could require that permit applications address the
removal of emergency provisions during the next periodic permit
renewal, permit modification, or permit reopening, including those that
occur as the result of other rulemakings. States using these mechanisms
should ensure that these changes occur at the first possible occasion;
in other words, the first situation in which the permitting authority
must act on an individual permit after state program revisions are
approved by the EPA. Moreover, because states have never been required
by federal law to include these provisions in state-issued title V
permits, the EPA also encourages states to exercise their discretion to
cease including emergency affirmative defense provisions as early as
practicable. In many cases, there will be no reason for states to wait
for the EPA to take final action on this proposal to begin implementing
this suggestion.\35\
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\35\ Of course, if currently-approved state program regulations
require that this provision be included within individual title V
operating permits, a state may not be able to exercise this
discretion until program revisions are completed.
---------------------------------------------------------------------------
Additionally, sources may apply for a permit modification from
their permitting authority at any time. The EPA anticipates that the
removal of an emergency affirmative defense would not trigger the
significant modification procedures under 40 CFR 70.7(e)(4), and--
depending on the regulations in each state's approved title V program--
could be implemented using minor modification procedures. Finally,
depending on the unique structure of each state's operating permit
program, some states may also be able to remove these provisions from
multiple existing permits in a single action, via mechanisms such as
general permits or permits-by-rule. The EPA is requesting comment on
how states could use existing permitting options to remove emergency
affirmative defense provisions from title V permits in a more
streamlined and expeditious manner.
Overall, the EPA believes that addressing the omission or removal
of emergency affirmative defense provisions from permits according to
the existing state program mechanisms described in this subsection
affords states sufficient flexibility to implement these changes and
provides certainty to facilities operating under title V permits. Under
the approaches currently being considered, the EPA anticipates that the
removal of affirmative defense provisions from permits should generally
occur in the ordinary course of business and should require essentially
no additional burden on states or sources. The timing for these changes
may coincide with similar changes to operating permits based on revised
SIP provisions following the SSM SIP Call or changes to other
applicable requirements, and it may be convenient and efficient for
states to make all necessary changes to title V permits at the same
time.
B. Implementing These Changes in the Part 71 Federal Operating Permit
Program
Although the title V operating permit program is typically
implemented by state and local permitting authorities through EPA-
approved part 70 programs, in certain circumstances the EPA has assumed
direct permitting authority over sources through its part 71 program.
The EPA administers the part 71 federal program in most areas of Indian
country (however, one tribe--the Southern Ute Tribe--has an approved
part 70 program, and another--the Navajo Nation--has been delegated
part 71 implementation authority),\36\ on the Outer Continental Shelf
(where there is no state permitting authority), as well as for specific
sources where the EPA has determined that a state has not adequately
implemented its part 70 program or satisfied an EPA objection to a
permit.
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\36\ The EPA has delegated a portion of its part 71 permitting
authority to the Navajo Nation EPA (NNEPA) through a delegation
agreement, such that NNEPA assumes the responsibility for specific
aspects of program administration under the part 71 regulations,
including the authority to issue part 71 operating permits to
sources.
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In some cases where the EPA administers its part 71 program, the
EPA has included in its federally-issued operating permits the
emergency affirmative defense provision found in 40 CFR 71.6(g). If 40
CFR 71.6(g) is removed, the federal (including delegated) program rules
would no longer include regulatory authority for incorporating this
emergency affirmative defense in permits. Therefore, in order to ensure
that part 71 programs are implemented consistent with the proposed
revisions to the part 71 regulations, the EPA or delegated permitting
authority should remove emergency affirmative defense provisions that
are currently included in title V permits at the next permit action
following the effective date of the final rule. Because the EPA has
always considered the emergency provisions to be discretionary permit
terms, the EPA has omitted emergency affirmative defense provisions
from part 71 permits that it has issued since the D.C. Circuit's 2014
NRDC v. EPA decision. The EPA plans to continue to exercise its
discretion to not include emergency affirmative defense provisions in
future EPA-issued operating permits.
C. Effect on Sources Potentially Subject to Enforcement Proceedings
The legal rights and obligations of individual sources potentially
subject to enforcement proceedings would not be adversely affected by
the removal of emergency affirmative defense provisions from their
title V permits.\37\ The absence of an affirmative defense provision in
a source's title V permit does not mean that all exceedances of
emission limitations in a title V permit will automatically be subject
to enforcement or automatically be subject to imposition of particular
remedies. Pursuant to the CAA, all parties with authority to bring an
enforcement action to enforce title V permit provisions (i.e., the
state, the EPA, or any parties who qualify under the citizen suit
provision of CAA section 304) have enforcement discretion that they may
exercise as they deem appropriate in any given circumstances. For
example, if the excess emissions caused by an emergency occurred
despite proper operation of the facility, and despite the permittee
taking all reasonable steps to minimize excess emissions, then these
parties may decide that no enforcement action is warranted. In the
event that any party decides that an enforcement action is warranted,
then it has enforcement discretion with respect to what remedies to
seek from the court for the violation (e.g., injunctive relief,
[[Page 38654]]
compliance order, monetary penalties, or all of the above), as well as
the type of injunctive relief and/or amount of monetary penalties
sought.\38\
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\37\ The removal of these provisions from individual operating
permits has similar implications to sources as the removal of the
SSM provisions subject to the SSM SIP Call. See SSM SIP Call, 80 FR
33852.
\38\ The EPA notes that only the state and the EPA have
authority to seek criminal penalties for knowing and intentional
violation of CAA requirements. The EPA has this explicit authority
under section 113(c).
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Further, courts have the discretion under section 113 to decline to
impose penalties or injunctive relief in appropriate cases. In the
event of an enforcement action for an exceedance of an emission limit
in a title V permit, a source can elect to assert any common law or
statutory defenses that it determines are supported, based upon the
facts and circumstances surrounding the alleged violation. Under
sections 304(a) and 113(b), courts have authority to impose injunctive
relief, issue compliance orders, assess monetary penalties or fees and
award any other appropriate relief. Under section 113(e), courts are
required to consider the enumerated factors when assessing monetary
penalties, including the source's compliance history, good faith
efforts to comply the duration of the violation, and ``such other
factors as justice may require.'' If the exceedance of the emission
limitation occurs due to an emergency, the source retains the ability
to defend itself in an enforcement action and to oppose the imposition
of particular remedies or to seek the reduction or elimination of
monetary penalties, based on the specific facts and circumstances of
the emergency event. Thus, elimination of an emergency affirmative
defense provision that purported to take away the statutory
jurisdiction of the court to exercise its authority to impose remedies
does not disarm sources in potential enforcement actions. Sources would
retain all of the equitable arguments they previously could have made;
they must simply make such arguments to the reviewing court as
envisioned by Congress in section 113(b) and section 113(e). Congress
vested the courts with the authority to judge how best to weigh the
evidence in an enforcement action and determine appropriate remedies.
The eventual removal of such impermissible emergency affirmative
defense provisions from state operating permit programs and individual
title V permits will likely be necessary to preserve the enforcement
structure of the CAA, to preserve the authority of courts to adjudicate
questions of liability and remedies in judicial enforcement actions,
and to preserve the potential for enforcement by states, the EPA, and
other parties under the citizen suit provision as an effective
deterrent to violations. In turn, this deterrent encourages sources to
be properly designed, maintained, and operated and, in the event of
violation of permitted emission limitations, to take appropriate action
to mitigate the impacts of the violation. In this way, as intended by
the existing enforcement structure of the CAA, sources can mitigate the
potential for enforcement actions against them and the remedies that
courts may impose upon them in such enforcement actions, based upon the
facts and circumstances of the event.
VI. Environmental Justice Considerations
The EPA believes the human health or environmental risk addressed
by this proposed action would not have potential disproportionately
high and adverse human health or environmental effects on minority,
low-income or indigenous populations because it would not adversely
affect the level of protection provided to human health or the
environment. This action simply proposes to remove emergency
affirmative defense provisions from the EPA's operating permit program
regulations. If the proposed rule is finalized, it may also be
necessary for state, local and tribal permitting authorities to remove
similar affirmative defense provisions from program regulations and
from individual title V operating permits. None of these changes would
alter the obligations of sources to comply with the emission limits and
other standards contained within title V operating permits. However,
this proposed rulemaking could encourage sources to comply with the
terms of their operating permits at all times to the maximum extent
practicable. This could potentially result in improved air quality for
communities living near sources of air pollution as well as the broader
population. Thus, this proposed rulemaking will not adversely affect
the level of protection to human health or the environment for any
populations.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control numbers 2060-0243 (for part 70 state operating permit programs)
and 2060-0336 (for part 71 federal operating permit program). In this
action, the EPA is proposing to remove certain provisions from the
EPA's regulations, which if finalized could result in the removal of
similar provisions from state, local, and tribal operating permit
programs and individual permits. Consequently, states could eventually
be required to submit program revisions to the EPA outlining any
necessary changes to their regulations and their plans to remove
provisions from individual permits. However, this proposed action will
not involve any requests for information, recordkeeping or reporting
requirements, or other requirements that would constitute an
information collection under the PRA.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
proposed action will not impose any requirements on small entities.
Entities potentially affected directly by this proposal include state,
local, and tribal governments, and none of these governments would
qualify as a small entity. Other types of small entities, including
stationary sources of air pollution, are not directly subject to the
requirements of this action.
D. Unfunded Mandates Reform Act (URMA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. 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.
[[Page 38655]]
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. One tribal government (the
Southern Ute Indian Tribe) currently administers an approved part 70
operating permit program, and one tribal government (the Navajo Nation)
currently administers a part 71 operating permit program pursuant to a
delegation agreement with the EPA. These tribal governments may be
required to take actions if this proposed rule is finalized, including
program revisions (for part 70 programs) and eventual permit revisions,
but these actions will not require substantial compliance costs. The
EPA solicits comment from affected tribal governments on the
implications of this proposed rulemaking.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations because it does not affect the level of
protection provided to human health or the environment. The results of
this evaluation are contained in Section VI of this document titled,
``Environmental Justice Considerations.''
VIII. Statutory Authority
The statutory authority for this proposed action is provided in CAA
sections 502(b) and 502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), which
direct the Administrator of the EPA to promulgate regulations
establishing state operating permit programs and give the Administrator
the authority to establish a federal operating permit program.
Additionally, the Administrator determines that this action is subject
to the provisions of CAA section 307(d), which establish procedural
requirements specific to rulemaking under the CAA. CAA section
307(d)(1)(V) provides that the provisions of CAA section 307(d) apply
to ``such other actions as the Administrator may determine.'' 42 U.S.C.
7607(d)(1)(V).
List of Subjects
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 71
Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.
Dated: June 3, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 70--STATE OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Sec. 70.6 [Amended]
0
2. In Sec. 70.6, remove paragraph (g).
PART 71--FEDERAL OPERATING PERMIT PROGRAMS
0
3. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Sec. 71.6 [Amended]
0
4. In Sec. 71.6, remove paragraph (g).
[FR Doc. 2016-14104 Filed 6-13-16; 8:45 am]
BILLING CODE 6560-50-P
