Withdrawal of Finding of Substantial Inadequacy of Implementation Plan and of Call for Texas State Implementation Plan Revision-Affirmative Defense Provisions, 17986-17993 [2019-08480]

Download as PDF 17986 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules (2) Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port Maryland-National Capital Region to assist in enforcing the safety zone described in paragraph (a) of this section. (c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP’s designated representative. All vessels underway within this safety zone at the time it is activated are to depart the zone. (2) To seek permission to enter, contact the COTP or the COTP’s designated representative by telephone at 410–576–2693 or on Marine Band Radio VHF–FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF–FM channel 16 (156.8 MHz). (3) Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP’s designated representative. (d) Enforcement officials. The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies. (e) Enforcement period. This section will be enforced from 8 p.m. to 10:30 p.m. on July 4, 2019, or if necessary due to inclement weather, from 8 p.m. to 10:30 p.m. on July 5, 2019. Dated: April 19, 2019. Joseph B. Loring, Captain, U.S. Coast Guard, Captain of the Port Maryland-National Capital Region. [FR Doc. 2019–08549 Filed 4–26–19; 8:45 am] BILLING CODE 9110–04–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 khammond on DSKBBV9HB2PROD with PROPOSALS [EPA–R06–OAR–2018–0770; FRL–9992–59– Region 6] Withdrawal of Finding of Substantial Inadequacy of Implementation Plan and of Call for Texas State Implementation Plan Revision— Affirmative Defense Provisions Environmental Protection Agency (EPA). ACTION: Proposed action. AGENCY: The Environmental Protection Agency (EPA) Region 6 Regional Administrator is considering an SUMMARY: VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 alternative interpretation regarding affirmative defense provisions in State Implementation Plans (SIPs) of states in EPA Region 6 that departs from the EPA’s 2015 policy on this subject. In accordance with the Federal Clean Air Act (Act or CAA), the EPA Region 6 is proposing to make a finding that the affirmative defense provisions in the SIP for the state of Texas applicable to excess emissions that occur during certain upset events and unplanned maintenance, startup, or shutdown activities are narrowly tailored and limited to ensure protection of the National Ambient Air Quality Standards (NAAQS) and other CAA requirements, and would be consistent with the newly announced alternative interpretation if adopted. Accordingly, the EPA Region 6 also is proposing to withdraw the SIP call issued to Texas that was published on June 12, 2015. DATES: Comments must be received on or before June 28, 2019. ADDRESSES: Submit your comments, identified by Docket No. EPA–R06– OAR–2018–0770 at https:// www.regulations.gov or via email to Shar.alan@epa.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 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, please contact Mr. Alan Shar, (214) 665–6691, Shar.alan@epa.gov. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https:// www.epa.gov/dockets/commenting-epadockets. Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 some may not be publicly available at either location (e.g., CBI). FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, (214) 665–6691, Shar.alan@ epa.gov. To inspect the hard copy materials, please schedule an appointment with Mr. Shar. SUPPLEMENTARY INFORMATION: Definitions For the purpose of this document, the following definitions apply: i. The word Act or initials CAA mean or refer to the Clean Air Act. ii. The term affirmative defense means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding. The term affirmative defense provision means more specifically a state law provision in a SIP that specifies particular criteria or preconditions that, if met, would purport to preclude a court from imposing monetary penalties or other forms of relief for violations of SIP requirements in accordance with CAA section 113 or CAA section 304. iii. The initials EPA mean or refer to the United States Environmental Protection Agency. iv. The initials HAP mean Hazardous Air Pollutant. v. The initials MACT mean Maximum Achievable Control Technology. vi. The term Malfunction means a sudden and unavoidable breakdown of process or control equipment. vii. The initials NAAQS mean National Ambient Air Quality Standards. viii. The initials PSD mean Prevention of Significant Deterioration. ix. The term EPA Region 6 refers to the United States Environmental Protection Agency, Region 6, located in Dallas, Texas. x. The initials SIP mean State Implementation Plan. xi. The initials SNPR mean Supplemental Notice of Proposed Rulemaking. xii. The word State means the state of Texas, unless the context indicates otherwise. xiii. The term Shutdown means, generally, the cessation of operation of a source. xiv. The initials SSM mean Startup, Shutdown, or Malfunction. xv. The term Startup means, generally, the setting in operation of a source. xvi. The term TCEQ means the Texas Commission on Environmental Quality. E:\FR\FM\29APP1.SGM 29APP1 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules Table of Contents I. Summary of the Proposed Action II. Background A. CAA Provisions Regarding State Implementation Plans B. The EPA’s Past Policy Supporting Affirmative Defense Provisions in State Implementation Plans C. The EPA’s 2015 Reversal—Finding of Inadequacy and SIP Call for Texas Regarding Affirmative Defense Provisions D. Texas’s Petition for Reconsideration and Stay of EPA’s 2015 Reversal Action III. The EPA Region 6 Policy Under Consideration on Affirmative Defense Provisions in SIPs IV. Evaluation of the Affirmative Defense Provisions in the Texas SIP A. Affirmative Defense Provisions in the Texas State Implementation Plan B. Application of Region 6 Policy, if Adopted, to Affirmative Defense Provisions in the Texas SIP V. Proposed Action VI. Statutory and Executive Order Reviews I. Summary of the Proposed Action Today, the EPA Region 6 is proposing to find that the affirmative defense provisions in Texas’s SIP applicable to excess emissions that occur during upsets (30 TAC 101.222(b)), unplanned events (30 TAC 101.222(c)), upsets with respect to opacity limits (30 TAC 101.222(d)), and unplanned events with respect to opacity limits (30 TAC 101.222(e)) do not make Texas’s SIP substantially inadequate to meet the requirements of the Act. Accordingly, the EPA Region 6 is proposing to withdraw its finding of substantial inadequacy with regard to Texas’s SIP and to withdraw the SIP call issued to Texas that was published on June 12, 2015 (80 FR 33968–9). II. Background khammond on DSKBBV9HB2PROD with PROPOSALS A. CAA Provisions Regarding State Implementation Plans In compliance with CAA section 110, every state has adopted and from time to time revises a SIP to attain and maintain the national ambient air quality standards (NAAQS).1 These plans must include enforceable ‘‘emission limitations and other control measures, means, or techniques,’’ as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. If a SIP or SIP revision meets the applicable requirements of the CAA, the EPA must approve it, at which point the state provisions become federally enforceable. 1 The NAAQS are codified at 40 CFR part 50. VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 A state is required to revise its SIP in certain ways after certain events specified in the CAA, including an ‘‘infrastructure’’ revision after EPA promulgates a new or revised NAAQS and an ‘‘attainment plan’’ revision after EPA designates or redesignates an area under the state’s jurisdiction as nonattainment for a NAAQS. States also often initiate revisions to their SIPs for other reasons (e.g., after the state has issued revisions of state rules and regulations previously approved by EPA for inclusion as part of the state’s federally enforceable SIP). The EPA evaluates each such state-initiated revision for compliance with applicable CAA requirements. Section 110(k)(5) of CAA provides that the Administrator shall require a state to submit a proposed revision to its SIP whenever the Administrator determines that the SIP is substantially inadequate to attain or maintain the relevant NAAQS, to mitigate adequately the interstate transport of pollution, or to otherwise comply with any requirement of the CAA. The CAA section 110(k)(5) process is commonly referred to as a ‘‘SIP Call.’’ EPA Region 6 proposes to withdraw the 2015 determination that the Texas SIP is substantially inadequate because of the presence of certain provisions that establish an affirmative defense as to civil penalties for sources with emissions during upsets and unplanned maintenance, startup and shutdown (MSS) activities that exceed otherwise applicable emission limitations in the SIP (See 80 FR 33840, June 12, 2015). B. The EPA’s Past Policy Supporting Affirmative Defense Provisions in State Implementation Plans The EPA uses the term ‘‘affirmative defense’’ to mean a response or defense put forward by a defendant in the context of an enforcement proceeding, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding. The term ‘‘affirmative defense provision’’ in the context of a SIP means, more specifically, a state law provision in a SIP that specifies particular criteria or preconditions that, if met, would purport to preclude a court from imposing monetary penalties or other forms of relief for violations of SIP requirements in accordance with CAA section 113 or CAA section 304. In 1999, the EPA provided states with non-binding guidance on the subject of SIP provisions that established boundaries for affirmative defenses for excess emissions relative to a SIP PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 17987 emission limitation.2 According to the 1999 Guidance, SIPs could contain affirmative defense provisions as to civil penalties for excess emissions during startup, shutdown, and malfunction events, but approvable affirmative defense provisions in SIPs should be narrowly tailored and limited to ensure protection of the NAAQS and meet other CAA requirements applicable to SIPs. The EPA explained that ‘‘the imposition of a [monetary] penalty for excess emissions . . . caused by circumstances entirely beyond the control of the owner or operator may not be appropriate.’’ 3 The EPA explained that an approvable affirmative defense provision should require that a defendant have the burden of proof to demonstrate several enumerated criteria. One list of criteria was included for startup and shutdown events, and a very similar list of criteria was included for malfunction events. The 1999 Guidance also reiterated and clarified other aspects of the EPA’s guidance regarding how SIPs may address startup, shutdown, and malfunction (SSM) events. As discussed further below, in 2013, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) upheld the EPA’s 2010 approval of an affirmative defense as to civil penalties for excess emissions during upsets and unplanned MSS activities (malfunctions) in the Texas SIP. See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013, cert. denied). Also in 2013, the EPA initiated an action partly in response to an administrative petition filed by Sierra Club in 2011 requesting: (1) That the EPA reexamine its CAA interpretation and guidance related to SIP provisions for SSM events; and (2) that the EPA determine that specific existing provisions in specific SIPs were inconsistent with the CAA (SSM SIP Action).4 In the initial proposal for the SSM SIP Action, the EPA proposed to continue to interpret the CAA to allow affirmative defense provisions for malfunction events as in the 1999 Guidance,5 but to depart from that Guidance by interpreting the CAA to preclude affirmative defense provisions 2 ‘‘State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,’’ Memorandum from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, to EPA Regional Administrators, September 20, 1999 (1999 Guidance). 3 Page 1 of the attachment to the 1999 Guidance. 4 78 FR 12460 (Feb. 22, 2013). 5 The EPA stated in our initial proposal that we believed that a ‘‘narrow affirmative defense for malfunction events’’ was permissible in SIP provisions. 78 FR 12470. E:\FR\FM\29APP1.SGM 29APP1 khammond on DSKBBV9HB2PROD with PROPOSALS 17988 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules for planned startup and shutdown events. Applying this approach, the EPA proposed to find that affirmative defense SIP provisions for startup and shutdown events in a number of SIPs (but notably not including Texas, whose SIP did not include an affirmative defense for planned startup and shutdown events) caused those SIPs to be substantially inadequate to meet CAA requirements, and the EPA proposed to call on the affected states to revise those provisions. After the EPA’s initial proposal for the SSM SIP Action, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision regarding the legality of affirmative defense provisions included in a certain national emission standard for hazardous air pollutants (NESHAP) established under CAA section 112. In NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), the D.C. Circuit reviewed an affirmative defense provision in that NESHAP which made monetary penalties unavailable where, in an enforcement proceeding, sources could demonstrate that an emissions violation was due to an unavoidable malfunction and met additional criteria.6 The D.C. Circuit vacated the EPA’s affirmative defense provision in that section 112 NESHAP, holding that the CAA gives district courts sole authority in federal enforcement proceedings to determine whether a penalty for a violation of a section 112 NESHAP is appropriate.7 In the NRDC decision, the court stated that it was not confronted with the decision of whether an affirmative defense may be appropriate in a SIP and noted that the Fifth Circuit in Luminant had upheld the EPA’s approval of affirmative defenses as to civil penalties in the Texas SIP.8 Following the NRDC decision, the EPA issued a supplemental notice of proposed rulemaking (SNPR) for the SSM SIP Action reconsidering the legal basis for affirmative defense provisions in CAA section 110 SIPs.9 In that notice, the EPA stated its view that the reasoning of the D.C. Circuit in NRDC should extend to affirmative defense provisions created by states in section 110 SIPs, that the EPA cannot approve any such affirmative defense provision in a SIP, and that if such an affirmative defense provision is included in an existing SIP, the EPA has authority under section 110(k)(5) to require a state 6 Id. 7 Id. at 1063–64. F.3d at 1064 n.2 (citing Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013, cert. denied)). 9 79 FR 55920, 55931–35 (Sept. 17, 2014). 8 749 VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 to remove that provision. The EPA therefore reevaluated the affirmative defense SIP provisions addressed in the original proposal (i.e., those that had been identified in the Sierra Club petition) and the EPA reviewed additional affirmative defense provisions in other states’ SIPs, including a provision in the Texas SIP that EPA had previously approved, and that Luminant upheld, as described in more detail later in this notice, that provided an affirmative defense as to civil penalties for upsets and unplanned maintenance, startup, and shutdown activities (functionally equivalent to malfunctions).10 In the supplemental proposal, the Agency proposed to find that the affirmative defense provisions in 17 states, including Texas, made those states’ SIPs substantially inadequate. The EPA proposed to issue SIP calls pursuant to section 110(k)(5) for the SIPs with these provisions.11 The EPA issued an SSM SIP policy, including a position on affirmative defenses, and finalized the SIP call for Texas and other states on May 22, 2015.12 The EPA determined that affirmative defense SIP provisions that operate to alter or eliminate federal courts’ jurisdiction to determine penalties for violations of SIP requirements would undermine Congress’s grant of jurisdiction and are inconsistent with CAA requirements.13 C. The EPA’s 2015 Reversal—Finding of Inadequacy and SIP Call for Texas Regarding Affirmative Defense Provisions As noted previously, on September 17, 2014, the EPA published a SNPR concerning affirmative defense provisions in SIPs.14 In that notice, the EPA identified 30 TAC 101.222(b)–(e) as problematic affirmative defense provisions in the EPA-approved SIP for the state of Texas. These provisions provide affirmative defenses as to civil penalties for sources of excess emissions that occur during upsets (section 101.222(b)), unplanned events (section 101.222(c)), upsets with respect to 10 Id. at 55936. at 55925. The count of 17 affected states includes some ambiguous SSM SIP provisions that were not clearly affirmative defense provisions but contained features of an affirmative defense. 12 80 FR 33957–74 (June 12, 2015). 13 80 FR 33851–53. 14 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 State; Proposed Rule.’’ 79 FR 55920 (Sept. 17, 2014). opacity limits (section 101.222(d)), and unplanned events with respect to opacity limits (section 101.222(e)). In the same SNPR, the EPA acknowledged that it had approved these affirmative defense provisions in 2010, after determining that they were consistent with the Agency’s interpretation of the CAA and its recommendations for such provisions as expressed in the 1999 Guidance, applicable at that point in time. Moreover, the SNPR noted that the EPA successfully defended its approval of these specific provisions 15 (as well as its disapproval of related provisions relevant to affirmative defenses for planned events) in the Fifth Circuit in the Luminant decision. On May 22, 2015 (See 80 FR 33840, published June 12, 2015), the EPA finalized its SIP calls concerning treatment of excess emissions that occur during periods of SSM.16 The final SIP calls required each affected state, including Texas, to submit a corrective SIP revision addressing the identified inadequacies no later than November 22, 2016.17 On November 18, 2016, TCEQ submitted a SIP revision that included rules stating that the SIP-called provisions in 30 TAC 101.222(b)–(e) are applicable only to enforcement actions initiated by the state in state courts and are not intended to limit a federal court’s ability to determine appropriate remedies. TCEQ conditioned this rule, however, as taking effect only upon a final and nonappealable court decision that upholds the 2015 SSM SIP Action.18 The EPA has not acted on the state’s November 18, 2016, submittal. D. Texas’s 2017 Petition for Reconsideration and Stay of EPA’s 2015 Reversal Action On March 15, 2017, former TCEQ Chairman Bryan W. Shaw submitted a letter to the EPA petitioning the Agency to reconsider the 2015 Texas SIP call and reinstate its prior interpretation (regarding affirmative defenses for malfunctions) for proper enforcement of the CAA. TCEQ requested that the EPA reconsider issues raised in the petition 11 Id. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 15 See 79 FR 55945, September 17, 2014. 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 Rule.’’ 17 June 12, 2015 (80 FR 33840). 18 The 2015 SSM SIP Action has been challenged and is currently being held in abeyance. See Envtl. Comm. of the Florida Power Coordinating Group, et al. v. EPA (D.C. Cir., filed July 27, 2015, Case No. 15–239 and consolidated cases). 16 ‘‘State E:\FR\FM\29APP1.SGM 29APP1 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS and that the EPA stay implementation of the final rule’s identification of the affirmative defenses as to civil penalties in the Texas SIP as inconsistent with the CAA pending reconsideration. On October 16, 2018, after review of the issues raised, the Regional Administrator for EPA Region 6 partially granted the petition, noting that the Region would provide notice and an opportunity for public comment if the Agency proposes changing the Texas SSM SIP call, but the Regional Administrator did not respond to TCEQ’s request for a stay. See letter from the EPA Region 6 to TCEQ, dated October 16, 2018, included in the docket for this action. In the process of partially granting TCEQ’s petition to reconsider the Texas SIP call, the Regional Administrator sought and obtained concurrence from the relevant office in the EPA’s Office of Air and Radiation to potentially propose an action inconsistent with the EPA’s interpretation of affirmative defense provisions contained in the 2015 SSM SIP Action when acting pursuant to the reconsideration of the Texas SIP call. The EPA CAA regulations allow an EPA Region to vary from a national policy such as the 2015 SSM SIP policy when the Region has obtained a requisite EPA Headquarters concurrence. See 40 CFR 56.5(b). TCEQ’s petition and the concurrence from the relevant office in the EPA’s Office of Air and Radiation are contained in the docket for this action. III. The EPA Region 6 Policy Under Consideration on Affirmative Defense Provisions in SIPs Upon further analysis, EPA Region 6 believes the policy position on affirmative defense SIP provisions for malfunctions as upheld by the Fifth Circuit’s Luminant decision should be maintained and that it is not appropriate to extend the D.C. Circuit’s reasoning in NRDC to the affirmative defense provisions in the Texas SIP. As the EPA acknowledged in the 2015 SSM SIP Action, the CAA does not speak directly to the question of whether affirmative defense provisions are permissible in section 110 SIPs. See 80 FR 33856; see also, Luminant, 714 F.3d at 852–53 (determining that under Chevron step 1 the CAA section 113 does not discuss whether a state may include an affirmative defense in its SIP and ‘‘turn[ing] to step two of Chevron’’ in holding that the Agency’s interpretation of the CAA to allow certain affirmative defenses as to civil penalties in SIPs was a ‘‘permissible interpretation of section [113], warranting deference’’). Therefore, Region 6 is considering VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 finding that it has discretion to determine how to reasonably interpret the statute to develop a policy on this issue in a manner consistent with the precedent in the Fifth Circuit.19 The D.C. Circuit’s NRDC decision evaluated the validity of an affirmative defense provision in an emission standard created by the EPA under CAA section 112, and expressly reserved judgment regarding the same question in the section 110 context in light of the ruling of its sister circuit. ‘‘The Fifth Circuit recently upheld EPA’s partial approval of an affirmative defense provision in a State Implementation Plan. See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013). We do not here confront the question whether an affirmative defense may be appropriate in a State Implementation Plan.’’ 20 Therefore, the NRDC decision did not foreclose EPA’s ability to allow for affirmative defense provisions in section 110 SIPs, particularly in light of the Fifth Circuit’s precedent upholding the EPA’s prior approval of the Texas provisions at issue here. Upon revisiting this issue and consistent with the authority for EPA Regions to adopt a policy that varies from national policy under the mechanism established by 40 CFR 56.5(b), EPA Region 6 is evaluating the particular relevance of the Luminant decision and whether the NRDC decision has any application to Region 6’s SIP approvals under CAA section 110 in this context. EPA Region 6 is considering finding that it may not be appropriate to extend the reach of the NRDC decision to affirmative defense provisions in section 110 SIPs in a manner inconsistent with the Luminant decision. The mechanisms established under section 112 of the CAA to control air pollution are different than those under section 110 in significant ways. NESHAP are developed by the EPA under CAA section 112. Under CAA section 112, once a source category is listed for regulation pursuant to CAA section 112(c), the statute directs EPA to use a specific and exacting process to establish nationally-applicable, category-wide, technology-based emissions standards under section 112(d). Under section 112(d), EPA must establish emission standards for major 19 E.g., Nat’l Cable & Telecomms. Ass’n v. Brand X internet Servs., 545 U.S. 967 (2005); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009); and Louisiana Envtl. Action Network v. EPA, 382 F.3d 575, 581–82 (5th Cir. 2004) (recognizing that a court’s reversal of EPA’s interpretation of the CAA is warranted only where an agency interpretation is contrary to ‘‘clear congressional intent.’’) (quoting Chevron, 467 U.S. 837, 843 n.9 (1984)). 20 NRDC, 749 F.3d at 1064 n.2. PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 17989 sources that ‘‘require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section’’ that EPA determines is achievable taking into account certain statutory factors. The EPA refers to these rules as ‘‘maximum achievable control technology’’ or ‘‘MACT’’ standards. The MACT standards for existing sources must be at least as stringent as the average emissions limitation achieved by the best performing 12 percent of existing sources in the category (for which the Administrator has emissions information) or the best performing five sources for source categories with less than 30 sources. See CAA section 112(d)(3)(A) and (B). This level of minimum stringency is referred to as the MACT floor. For new sources, MACT standards must be at least as stringent as the control level achieved in practice by the best controlled existing similar source. See CAA section 112(d)(3). The EPA also must analyze more stringent ‘‘beyond-the-floor’’ control options, which consider not only the maximum degree of reduction in emissions of a hazardous air pollutant (HAP), but must take into account costs, energy, and non-air quality health and environmental impacts when doing so. In contrast, SIPs are developed by the states under CAA section 110 and reflect the Clean Air Act’s core principle of cooperative federalism. See Michigan v. EPA, 268 F.3d 1075, 1083 (D.C. Cir. 2001); 42 U.S.C. 7401(a)(3) and (4). Section 110 affords broad discretion to states in how to develop and implement air emission controls after the federal government establishes NAAQS to be achieved. For example, in determining which emissions limits and other control measures to incorporate into SIPs, CAA section 110(a)(2)(A) provides states with flexibility to decide the specific controls that ‘‘may be necessary and appropriate’’ to meet the Act’s requirements. This flexibility, and state discretion, under section 110 has been acknowledged repeatedly by the EPA in its actions and in court decisions on those Agency actions.21 While CAA 21 E.g., Train v. NRDC, 421 U.S. 60, 79 (1975) (‘‘Under § 110(a)(2), the Agency is required to approve a State plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section’s general requirements. The Act gives the Agency no authority to question the wisdom of a State’s choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2). . . . Thus, so long as the ultimate effect of a State’s choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation.’’); CleanCOALition v. TXU Power, 536 F.3d 469, 472 n.3 (5th Cir. 2008) (‘‘EPA has no E:\FR\FM\29APP1.SGM Continued 29APP1 khammond on DSKBBV9HB2PROD with PROPOSALS 17990 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules section 110 functions within a cooperative federalism system in which states propose plans to attain and maintain the NAAQS and the EPA determines whether their specific plans comply with the Act’s requirements, see 42 U.S.C. 7410(k)(4), CAA section 112 on the other hand strictly prescribes how the EPA must establish federal emission limitations for a specific class of sources which states have little flexibility in how to implement. In addition, the EPA’s role, with respect to a SIP revision, is focused on reviewing the submission to determine whether it meets the minimum criteria of the CAA, and, where it does, EPA must approve the submission. In the context of a SIP, the EPA is not establishing its own requirements for the state to implement. CAA section 110(a)(2)(A)–(B) requires states to submit SIPs with emission limits and other controls necessary to meet CAA requirements, and CAA section 110(a)(2)(C) requires SIPs to include ‘‘a program to provide for the enforcement’’ of those emision control measures. In light of the inherent flexibility established by Congress in CAA section 110 for NAAQS implementation, for Region 6 to approve a state’s SIP submission that contains an affirmative defense provision that is adequately protective and does not interfere with any applicable requirement of the CAA may be an appropriate recognition that states have latitude to define in their SIPs what constitutes an enforceable emission limitation, so long as the SIP meets all applicable CAA requirements. See 42 U.S.C. 7407(a) (States have the primary responsibility for assuring air quality within the state by submitting a SIP ‘‘which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained. . .’’). These differences in scope and relative balance of state and federal authority between CAA sections 110 and 112 suggest that the D.C. Circuit’s reasoning with respect to limits on federal agency authority under the latter does not address the distinct question of whether a state may deem affirmative defense provisions to be an appropriate part of their overall NAAQS maintenance strategy for inclusion in their SIP submissions to EPA. In further considering this issue and consistent with the above discussion, EPA Region 6 believes that the application of the D.C. Circuit’s reasoning in the NRDC authority to question the wisdom of a State’s choices of emission limitations if they are part of a SIP that otherwise satisfies the standards set forth in 42 U.S.C. 7410(a)(2).’’). VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 decision may be particularly inappropriate in this circumstance where, as noted in the NRDC decision, the EPA’s approval of the Texas SIP provision at issue was upheld by the Fifth Circuit. In its 2014 supplemental proposal, when it applied the reasoning of NRDC in the SIP context, the EPA may have given insufficient weight to the fact that the Texas SIP provisions had been upheld by the Fifth Circuit. In the Luminant case, the environmental petitioners raised the same basic argument that was key to the D.C. Circuit’s NRDC holding: Environmental petitioners argued that the EPA’s approval of the Texas affirmative defense SIP provision conflicts with the CAA’s provision that, in the case of EPA enforcement and citizen suits, a federal district court ‘‘shall have jurisdiction’’ to assess a ‘‘civil penalty.’’ 42 U.S.C. 7413(b); 7604(a). The Fifth Circuit, however, upheld as ‘‘neither contrary to law nor in excess of [EPA’s] statutory authority’’ the EPA’s position that the Texas provision at issue here is narrowly tailored and consistent with the penalty assessment criteria in CAA section 113(e).22 See also 42 U.S.C. 7410(a)(2)(C) (requiring states to include a program for the enforcement of control measures as necessary and appropriate to meet applicable CAA requirements). EPA Region 6 believes that the best policy may be to permit certain affirmative defense provisions in the section 110 SIPs of states in Region 6, consistent with the Luminant decision, and invites comment on this issue. Consistent with the discussion above, EPA Region 6 believes that it may be inappropriate to impose a civil penalty on sources for sudden and unavoidable emissions caused by circumstances beyond the control of the owner or operator. EPA Region 6 recognizes that even equipment that is properly designed and maintained can sometimes fail. Further, because the specific affirmative defense provisions at issue herein apply to excess emissions that cannot be avoided by a source operator, removing these affirmative defense provisions from SIPs will not reduce emissions and therefore would not result in an environmental or public health or welfare benefit. Therefore, EPA Region 6 is considering adopting a policy that affirmative defense 22 Luminant, 714 F.3d at 853. Other circuit courts have also upheld affirmative defense provisions promulgated by the Agency as part of federal implementation plans, which the EPA promulgates when a state has failed to provide a SIP that satisfies the minimum CAA requirements. Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 (9th Cir. 2012); Arizona Public Service Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009). PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 provisions are generally permissible in SIPs when they are adequately protective and do not interfere with any applicable requirement of the CAA and invites comment on this issue. 42 U.S.C. 7410(k)(3) and (l). IV. Evaluation of the Affirmative Defense Provisions in the Texas SIP As outlined in the previous section, and consistent with the Luminant decision, EPA Region 6 is considering reinstating EPA’s policy that affirmative defense provisions in the SIPs are generally approvable in states in Region 6. EPA Region 6 believes that affirmative defense SIP provisions may be generally permissible when they are adequately protective and do not interfere with any applicable requirement of the CAA. As mentioned above, a state’s authority to establish an enforceable emission limitation in its SIP under CAA section 110(a)(2) includes the authority to establish an emission limitation that includes an affirmative defense as to civil penalties. Upon analyzing 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e), EPA Region 6 is proposing to determine that these provisions are adequately protective and do not interfere with any applicable requirement of the CAA and therefore are permissible affirmative defense SIP provisions if EPA Region 6 adopts the new policy under consideration as outlined in section III. A. Affirmative Defense Provisions in the Texas State Implementation Plan Under the Texas SIP, the regulation and control of emissions occurring during startups, shutdowns and malfunctions has evolved over time.23 Upsets and unplanned maintenance, startup, and shutdown (MSS) activities are equivalent to malfunctions, and the affirmative defense provisions governing emissions during those periods are the subject of this proposed rulemaking. In 2005, Texas revised its excess emissions regulations.24 In particular, the revised regulations included narrowly tailored and limited affirmative defenses to civil penalties for excess emissions during ‘‘upsets’’ and ‘‘unplanned MSS activities’’ at Texas facilities. See 30 TAC 101.222(b)– (e). Texas submitted these provisions to the EPA on June 23, 2006, and the EPA 23 See Luminant Generation Co. v. EPA, 714 F.3d 841, 847–849; see also, Part II.A ‘‘TCEQ’s Excess Emissions History,’’ Comments by the Texas Commission on Environmental Quality Regarding State Implementation Plans, at 4–9 (November 5, 2014), EPA Docket ID No. EPA–HQ–OAR–2012– 0322, Document No. 0936. 24 See 30 Tex. Reg. 8884 (December 30, 2005). E:\FR\FM\29APP1.SGM 29APP1 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS approved them into the Texas SIP in 2010. See 75 FR 68989 (Nov. 10, 2010). The EPA’s approval of these provisions as a revision to the Texas SIP was challenged but ultimately upheld. See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013, cert. denied). In 2015, in the final SSM SIP Action as discussed above, the EPA determined, based on NRDC, that these previously approved and upheld affirmative defense provisions for malfunctions (upsets and unplanned MSS activities) were inconsistent with the CAA and thus the Texas SIP was substantially inadequate, and the EPA called on Texas to remove 30 TAC 101.222(b)–(e) from the Texas SIP. This action proposes to withdraw the 2015 Texas SIP call, and thereby leave in place the EPA’s 2010 approval of the Texas SIP provisions related to affirmative defenses as to civil penalties for excess emissions during upsets and unplanned MSS activities. According to 30 TAC 101.222(b), which is applicable to emission limits in the Texas SIP other than opacity limits, an affirmative defense as to civil penalties is available for all claims in enforcement actions concerning ‘‘upset events’’ that are determined not to be excessive emissions events 25 other than claims for administrative technical orders and actions for injunctive relief, for which the owner or operator proves all of the following: ‘‘(1) the owner or operator complies with the requirements of § 101.201 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements). In the event the owner or operator fails to report as required by § 101.201(a)(2) or (3), (b), or (e) of this title, the commission will initiate enforcement for such failure to report and for the underlying emissions event itself. This subsection does not apply when there are minor omissions or inaccuracies that do not impair the commission’s ability to review the event according to this rule, unless the owner or operator knowingly or intentionally falsified the information in the report; 25 To determine whether an emissions event or emissions events are excessive, the following factors are evaluated: (1) The frequency of the facility’s emissions events; (2) the cause of the emissions event; (3) the quantity and impact on human health or the environment of the emissions event; (4) the duration of the emissions event; (5) the percentage of a facility’s total annual operating hours during which emissions events occur; and (6) the need for startup, shutdown, and maintenance activities. See 30 TAC 101.222(a). The current EPAapproved Texas SIP does not provide any affirmative defense for an emissions event or emissions events that are determined to be excessive emission events. Such events are required to have a corrective action plan developed and are subject to a penalty action. VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 (2) the unauthorized emissions were caused by a sudden, unavoidable breakdown of equipment or process, beyond the control of the owner or operator; (3) the unauthorized emissions did not stem from any activity or event that could have been foreseen and avoided or planned for, and could not have been avoided by better operation and maintenance practices or technically feasible design consistent with good engineering practice; (4) the air pollution control equipment or processes were maintained and operated in a manner consistent with good practice for minimizing emissions and reducing the number of emissions events; (5) prompt action was taken to achieve compliance once the operator knew or should have known that applicable emission limitations were being exceeded, and any necessary repairs were made as expeditiously as practicable; (6) the amount and duration of the unauthorized emissions and any bypass of pollution control equipment were minimized and all possible steps were taken to minimize the impact of the unauthorized emissions on ambient air quality; (7) all emission monitoring systems were kept in operation if possible; (8) the owner or operator actions in response to the unauthorized emissions were documented by contemporaneous operation logs or other relevant evidence; (9) the unauthorized emissions were not part of a frequent or recurring pattern indicative of inadequate design, operation, or maintenance; (10) the percentage of a facility’s total annual operating hours during which unauthorized emissions occurred was not unreasonably high; and (11) the unauthorized emissions did not cause or contribute to an exceedance of the national ambient air quality standards (NAAQS), prevention of significant deterioration (PSD) increments, or to a condition of air pollution.’’ 26 The EPA approved 30 TAC 101.222(b) as a revision to the Texas SIP in 2010 because it determined that this 26 Texas Health and Safety Code, Title 5. Sanitation and Environmental Quality, Subtitle C. Air Quality, Chapter 382. Clean Air Act, Subchapter A. General Provisions, Section 382.003(1)(C)(3) defines Air Pollution to mean ‘‘the presence in the atmosphere of one or more air contaminants or combination of air contaminants in such concentration and of such duration that: (A) Are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property; or (B) interfere with the normal use or enjoyment of animal life, vegetation, or property.’’ PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 17991 provision provides a narrowly tailored affirmative defense as to civil penalties for excess emissions during an upset event, which the EPA considered equivalent to a malfunction event, that was consistent with the interpretation of the CAA as set forth in the 1999 Guidance. In particular, these affirmative defense provisions only concerned civil penalties for violations involving excess emissions during certain defined activities and did not preclude actions seeking injunctive relief. In addition, the criteria include a requirement that the unauthorized emissions did not cause or contribute to an exceedance of a NAAQS, PSD increment, or a condition of air pollution. As stated above, excess emissions were subject to reporting requirements and an analysis that such emissions were not excessive. See 30 TAC 101.201 (relating to emission event reporting and recordkeeping requirements) and 30 TAC 101.222(a) (relating to excessive emission event determinations). Excess emissions determined to be excessive triggered penalty and corrective action plan requirements. In the Texas SIP, 30 TAC 101.222(d) provides the same affirmative defense terms for upset events related to SIP opacity limits. The EPA approved 30 TAC 101.222(d) for the same reasons as it approved 30 TAC 101.222(b). Also, the Texas SIP includes 30 TAC 101.222(c) and 101.222(e) that provide similar affirmative defenses as to civil penalties for unplanned MSS activities that arise from sudden and unforeseeable events beyond the control of the operator that require immediate corrective action to minimize or avoid an upset or malfunction. These provisions allow an affirmative defense as to civil penalties where the source owner or operator has the burden to prove that such unplanned activities arose from sudden or unforeseeable events beyond the control of the operator, that immediate corrective action was required to minimize or avoid an upset or malfunction, and that the criteria in section 101.222(c) or (e) have been met. In approving the provisions into the SIP, the EPA agreed that Texas’s treatment of unplanned MSS is functionally equivalent to EPA’s 1999 Guidance definition of malfunction. The EPA approved these two provisions for the same reasons it approved 30 TAC 101.222(b) and 101.222(d), interpreting unplanned MSS to mean maintenance or shutdown related to a malfunction. A copy of 30 TAC 101.222 showing the specific terms for all four affirmative defense-related E:\FR\FM\29APP1.SGM 29APP1 17992 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules provisions is available in the docket for this action.27 The EPA-approved Texas SIP also includes 30 TAC 101.222(f) and (g) which establish certain restrictions on the applicability of the affirmative defenses as to civil penalties in 30 TAC § 101.222(b) through (e). For example, 30 TAC 101.222(f) states that the affirmative defense provisions do not remove any obligations to comply with any other existing permit, rule, or order provisions that are applicable to an emissions event or a maintenance, startup or shutdown activity, and that the affirmative defense provisions only apply to violations of SIP requirements, not to violations of federally promulgated performance or technology based standards, such as those found in 40 CFR parts 60, 61, and 63. Under 30 TAC 101.222(g), evidence of any past event subject to a possible affirmative defense is also admissible and relevant to demonstrate a frequent or recurring pattern of events which could preclude the successful assertion of the affirmative defense. khammond on DSKBBV9HB2PROD with PROPOSALS B. Application of Region 6 Policy, if Adopted, to Affirmative Defense Provisions in the Texas SIP The identified provisions in 30 TAC 101.222(b)–(e) provide an affirmative defense for non-excessive upset and unplanned events, which are equivalent to the term malfunction used in EPA’s 1999 Guidance. If a violation during an upset or unplanned MSS activity (malfunction) is found not to be ‘‘excessive,’’ additional specified criteria are met (including a demonstration that the unauthorized emissions ‘‘did not cause or contribute to an exceedance of the NAAQS, PSD increments, or a condition of air pollution’’), and the unauthorized emissions ‘‘could not have been prevented through planning and design,’’ then the affirmative defense as to civil penalties is available. 30 TAC 101.222(b)–(e). Even if all required criteria are met and the owner or operator establishes the applicability of the approved affirmative defense, the excess emissions are still a violation of the underlying emission limit and injunctive relief is still available. See 75 FR 68991, footnote # 4. 27 In the November 2010 action, the EPA also approved 30 TAC Chapter 101, Subchapter A, revised section 101.1 (Definitions); and Subchapter F, revised sections 101.201 (Emissions Event Reporting and Recordkeeping Requirements) and 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), and new sections 101.221 (Operational Requirements), 101.222 (a) through (g) (Demonstrations), and 101.223 (Actions to Reduce Excessive Emissions). VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 As first outlined in the action initially approving these provisions into Texas’s SIP in 2010, the EPA explained that section 101.222(b) is consistent with EPA’s 1999 Guidance for the following reasons: ‘‘(1) The rule does not provide an exemption from compliance with applicable emission limitations; (2) The affirmative defense provided is limited to upset or malfunctions; (3) The affirmative defense applies only to a judicial or administrative enforcement action for a violation of applicable emission limitations; (4) The defense applies only to civil penalties and cannot be asserted for an enforcement action for injunctive relief; (5) The rule specifies criteria, which must be met in order to assert the defense that are consistent with those outlined in EPA’s 1999 Policy; (6) The burden to prove that the criteria have been met is on the owner or operator; (7) A determination by TCEQ that the criteria have been met does not constitute a waiver of liability for the violation; (8) Nothing in the rule, including a determination by the TCEQ, would bar EPA or a citizen suit enforcement action for the emission violation; (9) The affirmative defense cannot be asserted where the unauthorized emissions cause or contribute to an exceedance of the NAAQS, PSD increments or to a condition of air pollution; (10) The affirmative defense may not be asserted against Federal performance or technology-based standards such as NSPS or NESHAP; (11) The affirmative defense may not be asserted where the Executive Director of TCEQ determines that the emissions event is excessive under the criteria in section 101.222(a); and (12) The emissions event must be reported to TCEQ under section 101.201 in order for the owner or operator to assert the affirmative defense.’’ 75 FR 26892, 26895 (May 13, 2010). EPA further explained that sections 101.222(c) and 101.222(e) provide a similar affirmative defense for unplanned maintenance, startup or shutdown activities that arise from sudden and unforeseeable events beyond the control of the operator that require immediate corrective action to minimize or avoid an upset or malfunction. The EPA determined that ‘‘unplanned maintenance, startup, or shutdown’’ activity is functionally equivalent to EPA’s 1999 Guidance definition of a malfunction. Similar to section 101.222(b), the provisions in sections 101.222(c) and 101.222(e) places the burden of proof on a source or operator to show that maintenance activities undertaken arose from sudden and unforeseeable events beyond the control of the operator, that immediate corrective action was required to minimize or avoid an upset or malfunction and that outlined criteria, which are consistent with EPA’s 1999 Guidance, have been met. Id. at 26895– 96. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 Finally, the EPA explained that section 101.222(d), which concerns excess opacity events for non-excessive upset emission events, contains affirmative defense criteria that are specifically tailored for opacity-related activities, but follow the pattern of criteria in 101.222(b). Id. at 26896. Therefore, the EPA determined that the criteria in section 101.222(d) were also consistent with our interpretation of the Act as outlined in EPA’s 1999 Guidance. EPA Region 6 is reaffirming all of the above outlined findings from the 2010 action. EPA Region 6 has determined that these SIP provisions are narrowly tailored to address unavoidable, excess emissions and are consistent with the penalty assessment criteria set forth in CAA section 113(e). As outlined in section III, EPA Region 6 is considering an interpretation that narrowly tailored affirmative defense provisions are consistent with CAA requirements in provisions like Texas’s where the affirmative defense as to civil penalties applies to upset or malfunction events. An effective enforcement program must be able to collect penalties to deter avoidable violations. 42 U.S.C. 7413. However, sources may, despite good operating practices, suffer a malfunction due to events beyond the control of the owner or operator and be unable to meet emission limitations during periods of startup and shutdown. For this reason, EPA Region 6 proposes to determine that affirmative defense SIP provisions like those in the Texas SIP, which provide a narrowly tailored affirmative defense as to civil penalties for circumstances where it is infeasible to meet the applicable limit and the source must prove that the source has made all reasonable efforts to comply, are consistent with CAA requirements. See Luminant, 714 F.3d at 852 (upholding the EPA approval of these Texas provisions); 42 U.S.C. 7410(k)(3) and (l), 7413(e) and 7604(a). Based on the above analysis, EPA Region 6 is proposing to reinstate its determination that 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e) are adequately protective and do not interfere with any applicable requirement of the CAA such that they are permissible affirmative defense SIP provisions consistent with the new EPA Region 6 policy outlined in section III, if adopted. In today’s proposed action, we are addressing only the affirmative defense provisions in the Texas SIP. V. Proposed Action EPA Region 6 is proposing to find that the affirmative defense provisions in the Texas SIP applicable to excess E:\FR\FM\29APP1.SGM 29APP1 Federal Register / Vol. 84, No. 82 / Monday, April 29, 2019 / Proposed Rules emissions that occur during upsets (30 TAC 101.222(b)), unplanned events (30 TAC 101.222(c)), upsets with respect to opacity limits (30 TAC 101.222(d)), and unplanned events with respect to opacity limits (30 TAC 101.222(e)) do not make the Texas SIP substantially inadequate to meet the requirements of the Act. Accordingly, EPA Region 6 is proposing to withdraw the SIP call issued to Texas as part of the 2015 SSM SIP Action. If EPA Region 6 finalizes this action as proposed, Texas will no longer have an obligation to submit a SIP revision addressing its existing affirmative defense SIP provisions in the absence of the SIP call. Texas may choose to withdraw the SIP revision it submitted in November 2016 in response to the SIP call, on which the EPA has not proposed nor taken action to approve or disapprove. khammond on DSKBBV9HB2PROD with PROPOSALS VI. Statutory and Executive Order Reviews Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: VerDate Sep<11>2014 16:06 Apr 26, 2019 Jkt 247001 • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866; • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because PO 00000 Frm 00027 Fmt 4702 Sfmt 9990 17993 application of those requirements would be inconsistent with the Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: April 23, 2019. David Gray, Acting Regional Administrator, Region 6. [FR Doc. 2019–08480 Filed 4–26–19; 8:45 am] ILLING CODE 6560–50–P E:\FR\FM\29APP1.SGM 29APP1

Agencies

[Federal Register Volume 84, Number 82 (Monday, April 29, 2019)]
[Proposed Rules]
[Pages 17986-17993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08480]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0770; FRL-9992-59-Region 6]


Withdrawal of Finding of Substantial Inadequacy of Implementation 
Plan and of Call for Texas State Implementation Plan Revision--
Affirmative Defense Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed action.

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SUMMARY: The Environmental Protection Agency (EPA) Region 6 Regional 
Administrator is considering an alternative interpretation regarding 
affirmative defense provisions in State Implementation Plans (SIPs) of 
states in EPA Region 6 that departs from the EPA's 2015 policy on this 
subject. In accordance with the Federal Clean Air Act (Act or CAA), the 
EPA Region 6 is proposing to make a finding that the affirmative 
defense provisions in the SIP for the state of Texas applicable to 
excess emissions that occur during certain upset events and unplanned 
maintenance, startup, or shutdown activities are narrowly tailored and 
limited to ensure protection of the National Ambient Air Quality 
Standards (NAAQS) and other CAA requirements, and would be consistent 
with the newly announced alternative interpretation if adopted. 
Accordingly, the EPA Region 6 also is proposing to withdraw the SIP 
call issued to Texas that was published on June 12, 2015.

DATES: Comments must be received on or before June 28, 2019.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0770 at https://www.regulations.gov or via email to 
[email protected]. 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 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, please contact Mr. Alan Shar, (214) 665-
6691, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at the EPA 
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available at either location 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, (214) 665-6691, 
[email protected]. To inspect the hard copy materials, please schedule 
an appointment with Mr. Shar.

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, the following definitions apply:
    i. The word Act or initials CAA mean or refer to the Clean Air Act.
    ii. The term affirmative defense means, in the context of an 
enforcement proceeding, a response or defense put forward by a 
defendant, regarding which the defendant has the burden of proof, and 
the merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding. The term affirmative defense 
provision means more specifically a state law provision in a SIP that 
specifies particular criteria or preconditions that, if met, would 
purport to preclude a court from imposing monetary penalties or other 
forms of relief for violations of SIP requirements in accordance with 
CAA section 113 or CAA section 304.
    iii. The initials EPA mean or refer to the United States 
Environmental Protection Agency.
    iv. The initials HAP mean Hazardous Air Pollutant.
    v. The initials MACT mean Maximum Achievable Control Technology.
    vi. The term Malfunction means a sudden and unavoidable breakdown 
of process or control equipment.
    vii. The initials NAAQS mean National Ambient Air Quality 
Standards.
    viii. The initials PSD mean Prevention of Significant 
Deterioration.
    ix. The term EPA Region 6 refers to the United States Environmental 
Protection Agency, Region 6, located in Dallas, Texas.
    x. The initials SIP mean State Implementation Plan.
    xi. The initials SNPR mean Supplemental Notice of Proposed 
Rulemaking.
    xii. The word State means the state of Texas, unless the context 
indicates otherwise.
    xiii. The term Shutdown means, generally, the cessation of 
operation of a source.
    xiv. The initials SSM mean Startup, Shutdown, or Malfunction.
    xv. The term Startup means, generally, the setting in operation of 
a source.
    xvi. The term TCEQ means the Texas Commission on Environmental 
Quality.

[[Page 17987]]

Table of Contents

I. Summary of the Proposed Action
II. Background
    A. CAA Provisions Regarding State Implementation Plans
    B. The EPA's Past Policy Supporting Affirmative Defense 
Provisions in State Implementation Plans
    C. The EPA's 2015 Reversal--Finding of Inadequacy and SIP Call 
for Texas Regarding Affirmative Defense Provisions
    D. Texas's Petition for Reconsideration and Stay of EPA's 2015 
Reversal Action
III. The EPA Region 6 Policy Under Consideration on Affirmative 
Defense Provisions in SIPs
IV. Evaluation of the Affirmative Defense Provisions in the Texas 
SIP
    A. Affirmative Defense Provisions in the Texas State 
Implementation Plan
    B. Application of Region 6 Policy, if Adopted, to Affirmative 
Defense Provisions in the Texas SIP
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Summary of the Proposed Action

    Today, the EPA Region 6 is proposing to find that the affirmative 
defense provisions in Texas's SIP applicable to excess emissions that 
occur during upsets (30 TAC 101.222(b)), unplanned events (30 TAC 
101.222(c)), upsets with respect to opacity limits (30 TAC 101.222(d)), 
and unplanned events with respect to opacity limits (30 TAC 101.222(e)) 
do not make Texas's SIP substantially inadequate to meet the 
requirements of the Act. Accordingly, the EPA Region 6 is proposing to 
withdraw its finding of substantial inadequacy with regard to Texas's 
SIP and to withdraw the SIP call issued to Texas that was published on 
June 12, 2015 (80 FR 33968-9).

II. Background

A. CAA Provisions Regarding State Implementation Plans

    In compliance with CAA section 110, every state has adopted and 
from time to time revises a SIP to attain and maintain the national 
ambient air quality standards (NAAQS).\1\ These plans must include 
enforceable ``emission limitations and other control measures, means, 
or techniques,'' as well as schedules and timetables for compliance, as 
may be necessary or appropriate to meet the applicable requirements of 
the CAA. If a SIP or SIP revision meets the applicable requirements of 
the CAA, the EPA must approve it, at which point the state provisions 
become federally enforceable.
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    \1\ The NAAQS are codified at 40 CFR part 50.
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    A state is required to revise its SIP in certain ways after certain 
events specified in the CAA, including an ``infrastructure'' revision 
after EPA promulgates a new or revised NAAQS and an ``attainment plan'' 
revision after EPA designates or redesignates an area under the state's 
jurisdiction as nonattainment for a NAAQS. States also often initiate 
revisions to their SIPs for other reasons (e.g., after the state has 
issued revisions of state rules and regulations previously approved by 
EPA for inclusion as part of the state's federally enforceable SIP). 
The EPA evaluates each such state-initiated revision for compliance 
with applicable CAA requirements.
    Section 110(k)(5) of CAA provides that the Administrator shall 
require a state to submit a proposed revision to its SIP whenever the 
Administrator determines that the SIP is substantially inadequate to 
attain or maintain the relevant NAAQS, to mitigate adequately the 
interstate transport of pollution, or to otherwise comply with any 
requirement of the CAA. The CAA section 110(k)(5) process is commonly 
referred to as a ``SIP Call.''
    EPA Region 6 proposes to withdraw the 2015 determination that the 
Texas SIP is substantially inadequate because of the presence of 
certain provisions that establish an affirmative defense as to civil 
penalties for sources with emissions during upsets and unplanned 
maintenance, startup and shutdown (MSS) activities that exceed 
otherwise applicable emission limitations in the SIP (See 80 FR 33840, 
June 12, 2015).

B. The EPA's Past Policy Supporting Affirmative Defense Provisions in 
State Implementation Plans

    The EPA uses the term ``affirmative defense'' to mean a response or 
defense put forward by a defendant in the context of an enforcement 
proceeding, regarding which the defendant has the burden of proof, and 
the merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding. The term ``affirmative defense 
provision'' in the context of a SIP means, more specifically, a state 
law provision in a SIP that specifies particular criteria or 
preconditions that, if met, would purport to preclude a court from 
imposing monetary penalties or other forms of relief for violations of 
SIP requirements in accordance with CAA section 113 or CAA section 304.
    In 1999, the EPA provided states with non-binding guidance on the 
subject of SIP provisions that established boundaries for affirmative 
defenses for excess emissions relative to a SIP emission limitation.\2\ 
According to the 1999 Guidance, SIPs could contain affirmative defense 
provisions as to civil penalties for excess emissions during startup, 
shutdown, and malfunction events, but approvable affirmative defense 
provisions in SIPs should be narrowly tailored and limited to ensure 
protection of the NAAQS and meet other CAA requirements applicable to 
SIPs. The EPA explained that ``the imposition of a [monetary] penalty 
for excess emissions . . . caused by circumstances entirely beyond the 
control of the owner or operator may not be appropriate.'' \3\ The EPA 
explained that an approvable affirmative defense provision should 
require that a defendant have the burden of proof to demonstrate 
several enumerated criteria. One list of criteria was included for 
startup and shutdown events, and a very similar list of criteria was 
included for malfunction events. The 1999 Guidance also reiterated and 
clarified other aspects of the EPA's guidance regarding how SIPs may 
address startup, shutdown, and malfunction (SSM) events.
---------------------------------------------------------------------------

    \2\ ``State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown,'' Memorandum 
from Steven A. Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, to EPA Regional Administrators, September 20, 
1999 (1999 Guidance).
    \3\ Page 1 of the attachment to the 1999 Guidance.
---------------------------------------------------------------------------

    As discussed further below, in 2013, the U.S. Court of Appeals for 
the Fifth Circuit (Fifth Circuit) upheld the EPA's 2010 approval of an 
affirmative defense as to civil penalties for excess emissions during 
upsets and unplanned MSS activities (malfunctions) in the Texas SIP. 
See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013, cert. 
denied). Also in 2013, the EPA initiated an action partly in response 
to an administrative petition filed by Sierra Club in 2011 requesting: 
(1) That the EPA reexamine its CAA interpretation and guidance related 
to SIP provisions for SSM events; and (2) that the EPA determine that 
specific existing provisions in specific SIPs were inconsistent with 
the CAA (SSM SIP Action).\4\ In the initial proposal for the SSM SIP 
Action, the EPA proposed to continue to interpret the CAA to allow 
affirmative defense provisions for malfunction events as in the 1999 
Guidance,\5\ but to depart from that Guidance by interpreting the CAA 
to preclude affirmative defense provisions

[[Page 17988]]

for planned startup and shutdown events. Applying this approach, the 
EPA proposed to find that affirmative defense SIP provisions for 
startup and shutdown events in a number of SIPs (but notably not 
including Texas, whose SIP did not include an affirmative defense for 
planned startup and shutdown events) caused those SIPs to be 
substantially inadequate to meet CAA requirements, and the EPA proposed 
to call on the affected states to revise those provisions.
---------------------------------------------------------------------------

    \4\ 78 FR 12460 (Feb. 22, 2013).
    \5\ The EPA stated in our initial proposal that we believed that 
a ``narrow affirmative defense for malfunction events'' was 
permissible in SIP provisions. 78 FR 12470.
---------------------------------------------------------------------------

    After the EPA's initial proposal for the SSM SIP Action, the U.S. 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) 
issued a decision regarding the legality of affirmative defense 
provisions included in a certain national emission standard for 
hazardous air pollutants (NESHAP) established under CAA section 112. In 
NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), the D.C. Circuit reviewed 
an affirmative defense provision in that NESHAP which made monetary 
penalties unavailable where, in an enforcement proceeding, sources 
could demonstrate that an emissions violation was due to an unavoidable 
malfunction and met additional criteria.\6\ The D.C. Circuit vacated 
the EPA's affirmative defense provision in that section 112 NESHAP, 
holding that the CAA gives district courts sole authority in federal 
enforcement proceedings to determine whether a penalty for a violation 
of a section 112 NESHAP is appropriate.\7\
---------------------------------------------------------------------------

    \6\ Id.
    \7\ Id. at 1063-64.
---------------------------------------------------------------------------

    In the NRDC decision, the court stated that it was not confronted 
with the decision of whether an affirmative defense may be appropriate 
in a SIP and noted that the Fifth Circuit in Luminant had upheld the 
EPA's approval of affirmative defenses as to civil penalties in the 
Texas SIP.\8\
---------------------------------------------------------------------------

    \8\ 749 F.3d at 1064 n.2 (citing Luminant Generation Co. v. EPA, 
714 F.3d 841 (5th Cir. 2013, cert. denied)).
---------------------------------------------------------------------------

    Following the NRDC decision, the EPA issued a supplemental notice 
of proposed rulemaking (SNPR) for the SSM SIP Action reconsidering the 
legal basis for affirmative defense provisions in CAA section 110 
SIPs.\9\ In that notice, the EPA stated its view that the reasoning of 
the D.C. Circuit in NRDC should extend to affirmative defense 
provisions created by states in section 110 SIPs, that the EPA cannot 
approve any such affirmative defense provision in a SIP, and that if 
such an affirmative defense provision is included in an existing SIP, 
the EPA has authority under section 110(k)(5) to require a state to 
remove that provision. The EPA therefore reevaluated the affirmative 
defense SIP provisions addressed in the original proposal (i.e., those 
that had been identified in the Sierra Club petition) and the EPA 
reviewed additional affirmative defense provisions in other states' 
SIPs, including a provision in the Texas SIP that EPA had previously 
approved, and that Luminant upheld, as described in more detail later 
in this notice, that provided an affirmative defense as to civil 
penalties for upsets and unplanned maintenance, startup, and shutdown 
activities (functionally equivalent to malfunctions).\10\ In the 
supplemental proposal, the Agency proposed to find that the affirmative 
defense provisions in 17 states, including Texas, made those states' 
SIPs substantially inadequate. The EPA proposed to issue SIP calls 
pursuant to section 110(k)(5) for the SIPs with these provisions.\11\
---------------------------------------------------------------------------

    \9\ 79 FR 55920, 55931-35 (Sept. 17, 2014).
    \10\ Id. at 55936.
    \11\ Id. at 55925. The count of 17 affected states includes some 
ambiguous SSM SIP provisions that were not clearly affirmative 
defense provisions but contained features of an affirmative defense.
---------------------------------------------------------------------------

    The EPA issued an SSM SIP policy, including a position on 
affirmative defenses, and finalized the SIP call for Texas and other 
states on May 22, 2015.\12\ The EPA determined that affirmative defense 
SIP provisions that operate to alter or eliminate federal courts' 
jurisdiction to determine penalties for violations of SIP requirements 
would undermine Congress's grant of jurisdiction and are inconsistent 
with CAA requirements.\13\
---------------------------------------------------------------------------

    \12\ 80 FR 33957-74 (June 12, 2015).
    \13\ 80 FR 33851-53.
---------------------------------------------------------------------------

C. The EPA's 2015 Reversal--Finding of Inadequacy and SIP Call for 
Texas Regarding Affirmative Defense Provisions

    As noted previously, on September 17, 2014, the EPA published a 
SNPR concerning affirmative defense provisions in SIPs.\14\ In that 
notice, the EPA identified 30 TAC 101.222(b)-(e) as problematic 
affirmative defense provisions in the EPA-approved SIP for the state of 
Texas. These provisions provide affirmative defenses as to civil 
penalties for sources of excess emissions that occur during upsets 
(section 101.222(b)), unplanned events (section 101.222(c)), upsets 
with respect to opacity limits (section 101.222(d)), and unplanned 
events with respect to opacity limits (section 101.222(e)).
---------------------------------------------------------------------------

    \14\ 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 State; Proposed Rule.'' 79 FR 55920 
(Sept. 17, 2014).
---------------------------------------------------------------------------

    In the same SNPR, the EPA acknowledged that it had approved these 
affirmative defense provisions in 2010, after determining that they 
were consistent with the Agency's interpretation of the CAA and its 
recommendations for such provisions as expressed in the 1999 Guidance, 
applicable at that point in time. Moreover, the SNPR noted that the EPA 
successfully defended its approval of these specific provisions \15\ 
(as well as its disapproval of related provisions relevant to 
affirmative defenses for planned events) in the Fifth Circuit in the 
Luminant decision.
---------------------------------------------------------------------------

    \15\ See 79 FR 55945, September 17, 2014.
---------------------------------------------------------------------------

    On May 22, 2015 (See 80 FR 33840, published June 12, 2015), the EPA 
finalized its SIP calls concerning treatment of excess emissions that 
occur during periods of SSM.\16\ The final SIP calls required each 
affected state, including Texas, to submit a corrective SIP revision 
addressing the identified inadequacies no later than November 22, 
2016.\17\
---------------------------------------------------------------------------

    \16\ ``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 Rule.''
    \17\ June 12, 2015 (80 FR 33840).
---------------------------------------------------------------------------

    On November 18, 2016, TCEQ submitted a SIP revision that included 
rules stating that the SIP-called provisions in 30 TAC 101.222(b)-(e) 
are applicable only to enforcement actions initiated by the state in 
state courts and are not intended to limit a federal court's ability to 
determine appropriate remedies. TCEQ conditioned this rule, however, as 
taking effect only upon a final and nonappealable court decision that 
upholds the 2015 SSM SIP Action.\18\ The EPA has not acted on the 
state's November 18, 2016, submittal.
---------------------------------------------------------------------------

    \18\ The 2015 SSM SIP Action has been challenged and is 
currently being held in abeyance. See Envtl. Comm. of the Florida 
Power Coordinating Group, et al. v. EPA (D.C. Cir., filed July 27, 
2015, Case No. 15-239 and consolidated cases).
---------------------------------------------------------------------------

D. Texas's 2017 Petition for Reconsideration and Stay of EPA's 2015 
Reversal Action

    On March 15, 2017, former TCEQ Chairman Bryan W. Shaw submitted a 
letter to the EPA petitioning the Agency to reconsider the 2015 Texas 
SIP call and reinstate its prior interpretation (regarding affirmative 
defenses for malfunctions) for proper enforcement of the CAA. TCEQ 
requested that the EPA reconsider issues raised in the petition

[[Page 17989]]

and that the EPA stay implementation of the final rule's identification 
of the affirmative defenses as to civil penalties in the Texas SIP as 
inconsistent with the CAA pending reconsideration. On October 16, 2018, 
after review of the issues raised, the Regional Administrator for EPA 
Region 6 partially granted the petition, noting that the Region would 
provide notice and an opportunity for public comment if the Agency 
proposes changing the Texas SSM SIP call, but the Regional 
Administrator did not respond to TCEQ's request for a stay. See letter 
from the EPA Region 6 to TCEQ, dated October 16, 2018, included in the 
docket for this action. In the process of partially granting TCEQ's 
petition to reconsider the Texas SIP call, the Regional Administrator 
sought and obtained concurrence from the relevant office in the EPA's 
Office of Air and Radiation to potentially propose an action 
inconsistent with the EPA's interpretation of affirmative defense 
provisions contained in the 2015 SSM SIP Action when acting pursuant to 
the reconsideration of the Texas SIP call. The EPA CAA regulations 
allow an EPA Region to vary from a national policy such as the 2015 SSM 
SIP policy when the Region has obtained a requisite EPA Headquarters 
concurrence. See 40 CFR 56.5(b). TCEQ's petition and the concurrence 
from the relevant office in the EPA's Office of Air and Radiation are 
contained in the docket for this action.

III. The EPA Region 6 Policy Under Consideration on Affirmative Defense 
Provisions in SIPs

    Upon further analysis, EPA Region 6 believes the policy position on 
affirmative defense SIP provisions for malfunctions as upheld by the 
Fifth Circuit's Luminant decision should be maintained and that it is 
not appropriate to extend the D.C. Circuit's reasoning in NRDC to the 
affirmative defense provisions in the Texas SIP. As the EPA 
acknowledged in the 2015 SSM SIP Action, the CAA does not speak 
directly to the question of whether affirmative defense provisions are 
permissible in section 110 SIPs. See 80 FR 33856; see also, Luminant, 
714 F.3d at 852-53 (determining that under Chevron step 1 the CAA 
section 113 does not discuss whether a state may include an affirmative 
defense in its SIP and ``turn[ing] to step two of Chevron'' in holding 
that the Agency's interpretation of the CAA to allow certain 
affirmative defenses as to civil penalties in SIPs was a ``permissible 
interpretation of section [113], warranting deference''). Therefore, 
Region 6 is considering finding that it has discretion to determine how 
to reasonably interpret the statute to develop a policy on this issue 
in a manner consistent with the precedent in the Fifth Circuit.\19\ The 
D.C. Circuit's NRDC decision evaluated the validity of an affirmative 
defense provision in an emission standard created by the EPA under CAA 
section 112, and expressly reserved judgment regarding the same 
question in the section 110 context in light of the ruling of its 
sister circuit. ``The Fifth Circuit recently upheld EPA's partial 
approval of an affirmative defense provision in a State Implementation 
Plan. See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013). 
We do not here confront the question whether an affirmative defense may 
be appropriate in a State Implementation Plan.'' \20\ Therefore, the 
NRDC decision did not foreclose EPA's ability to allow for affirmative 
defense provisions in section 110 SIPs, particularly in light of the 
Fifth Circuit's precedent upholding the EPA's prior approval of the 
Texas provisions at issue here. Upon revisiting this issue and 
consistent with the authority for EPA Regions to adopt a policy that 
varies from national policy under the mechanism established by 40 CFR 
56.5(b), EPA Region 6 is evaluating the particular relevance of the 
Luminant decision and whether the NRDC decision has any application to 
Region 6's SIP approvals under CAA section 110 in this context. EPA 
Region 6 is considering finding that it may not be appropriate to 
extend the reach of the NRDC decision to affirmative defense provisions 
in section 110 SIPs in a manner inconsistent with the Luminant 
decision.
---------------------------------------------------------------------------

    \19\ E.g., Nat'l Cable & Telecomms. Ass'n v. Brand X internet 
Servs., 545 U.S. 967 (2005); FCC v. Fox Television Stations, Inc., 
556 U.S. 502 (2009); and Louisiana Envtl. Action Network v. EPA, 382 
F.3d 575, 581-82 (5th Cir. 2004) (recognizing that a court's 
reversal of EPA's interpretation of the CAA is warranted only where 
an agency interpretation is contrary to ``clear congressional 
intent.'') (quoting Chevron, 467 U.S. 837, 843 n.9 (1984)).
    \20\ NRDC, 749 F.3d at 1064 n.2.
---------------------------------------------------------------------------

    The mechanisms established under section 112 of the CAA to control 
air pollution are different than those under section 110 in significant 
ways. NESHAP are developed by the EPA under CAA section 112. Under CAA 
section 112, once a source category is listed for regulation pursuant 
to CAA section 112(c), the statute directs EPA to use a specific and 
exacting process to establish nationally-applicable, category-wide, 
technology-based emissions standards under section 112(d). Under 
section 112(d), EPA must establish emission standards for major sources 
that ``require the maximum degree of reduction in emissions of the 
hazardous air pollutants subject to this section'' that EPA determines 
is achievable taking into account certain statutory factors. The EPA 
refers to these rules as ``maximum achievable control technology'' or 
``MACT'' standards. The MACT standards for existing sources must be at 
least as stringent as the average emissions limitation achieved by the 
best performing 12 percent of existing sources in the category (for 
which the Administrator has emissions information) or the best 
performing five sources for source categories with less than 30 
sources. See CAA section 112(d)(3)(A) and (B). This level of minimum 
stringency is referred to as the MACT floor. For new sources, MACT 
standards must be at least as stringent as the control level achieved 
in practice by the best controlled existing similar source. See CAA 
section 112(d)(3). The EPA also must analyze more stringent ``beyond-
the-floor'' control options, which consider not only the maximum degree 
of reduction in emissions of a hazardous air pollutant (HAP), but must 
take into account costs, energy, and non-air quality health and 
environmental impacts when doing so.
    In contrast, SIPs are developed by the states under CAA section 110 
and reflect the Clean Air Act's core principle of cooperative 
federalism. See Michigan v. EPA, 268 F.3d 1075, 1083 (D.C. Cir. 2001); 
42 U.S.C. 7401(a)(3) and (4). Section 110 affords broad discretion to 
states in how to develop and implement air emission controls after the 
federal government establishes NAAQS to be achieved. For example, in 
determining which emissions limits and other control measures to 
incorporate into SIPs, CAA section 110(a)(2)(A) provides states with 
flexibility to decide the specific controls that ``may be necessary and 
appropriate'' to meet the Act's requirements. This flexibility, and 
state discretion, under section 110 has been acknowledged repeatedly by 
the EPA in its actions and in court decisions on those Agency 
actions.\21\ While CAA

[[Page 17990]]

section 110 functions within a cooperative federalism system in which 
states propose plans to attain and maintain the NAAQS and the EPA 
determines whether their specific plans comply with the Act's 
requirements, see 42 U.S.C. 7410(k)(4), CAA section 112 on the other 
hand strictly prescribes how the EPA must establish federal emission 
limitations for a specific class of sources which states have little 
flexibility in how to implement.
---------------------------------------------------------------------------

    \21\ E.g., Train v. NRDC, 421 U.S. 60, 79 (1975) (``Under Sec.  
110(a)(2), the Agency is required to approve a State plan which 
provides for the timely attainment and subsequent maintenance of 
ambient air standards, and which also satisfies that section's 
general requirements. The Act gives the Agency no authority to 
question the wisdom of a State's choices of emission limitations if 
they are part of a plan which satisfies the standards of Sec.  
110(a)(2). . . . Thus, so long as the ultimate effect of a State's 
choice of emission limitations is compliance with the national 
standards for ambient air, the State is at liberty to adopt whatever 
mix of emission limitations it deems best suited to its particular 
situation.''); CleanCOALition v. TXU Power, 536 F.3d 469, 472 n.3 
(5th Cir. 2008) (``EPA has no authority to question the wisdom of a 
State's choices of emission limitations if they are part of a SIP 
that otherwise satisfies the standards set forth in 42 U.S.C. 
7410(a)(2).'').
---------------------------------------------------------------------------

    In addition, the EPA's role, with respect to a SIP revision, is 
focused on reviewing the submission to determine whether it meets the 
minimum criteria of the CAA, and, where it does, EPA must approve the 
submission. In the context of a SIP, the EPA is not establishing its 
own requirements for the state to implement. CAA section 110(a)(2)(A)-
(B) requires states to submit SIPs with emission limits and other 
controls necessary to meet CAA requirements, and CAA section 
110(a)(2)(C) requires SIPs to include ``a program to provide for the 
enforcement'' of those emision control measures. In light of the 
inherent flexibility established by Congress in CAA section 110 for 
NAAQS implementation, for Region 6 to approve a state's SIP submission 
that contains an affirmative defense provision that is adequately 
protective and does not interfere with any applicable requirement of 
the CAA may be an appropriate recognition that states have latitude to 
define in their SIPs what constitutes an enforceable emission 
limitation, so long as the SIP meets all applicable CAA requirements. 
See 42 U.S.C. 7407(a) (States have the primary responsibility for 
assuring air quality within the state by submitting a SIP ``which will 
specify the manner in which national primary and secondary ambient air 
quality standards will be achieved and maintained. . .'').
    These differences in scope and relative balance of state and 
federal authority between CAA sections 110 and 112 suggest that the 
D.C. Circuit's reasoning with respect to limits on federal agency 
authority under the latter does not address the distinct question of 
whether a state may deem affirmative defense provisions to be an 
appropriate part of their overall NAAQS maintenance strategy for 
inclusion in their SIP submissions to EPA. In further considering this 
issue and consistent with the above discussion, EPA Region 6 believes 
that the application of the D.C. Circuit's reasoning in the NRDC 
decision may be particularly inappropriate in this circumstance where, 
as noted in the NRDC decision, the EPA's approval of the Texas SIP 
provision at issue was upheld by the Fifth Circuit. In its 2014 
supplemental proposal, when it applied the reasoning of NRDC in the SIP 
context, the EPA may have given insufficient weight to the fact that 
the Texas SIP provisions had been upheld by the Fifth Circuit. In the 
Luminant case, the environmental petitioners raised the same basic 
argument that was key to the D.C. Circuit's NRDC holding: Environmental 
petitioners argued that the EPA's approval of the Texas affirmative 
defense SIP provision conflicts with the CAA's provision that, in the 
case of EPA enforcement and citizen suits, a federal district court 
``shall have jurisdiction'' to assess a ``civil penalty.'' 42 U.S.C. 
7413(b); 7604(a). The Fifth Circuit, however, upheld as ``neither 
contrary to law nor in excess of [EPA's] statutory authority'' the 
EPA's position that the Texas provision at issue here is narrowly 
tailored and consistent with the penalty assessment criteria in CAA 
section 113(e).\22\ See also 42 U.S.C. 7410(a)(2)(C) (requiring states 
to include a program for the enforcement of control measures as 
necessary and appropriate to meet applicable CAA requirements).
---------------------------------------------------------------------------

    \22\ Luminant, 714 F.3d at 853. Other circuit courts have also 
upheld affirmative defense provisions promulgated by the Agency as 
part of federal implementation plans, which the EPA promulgates when 
a state has failed to provide a SIP that satisfies the minimum CAA 
requirements. Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 
(9th Cir. 2012); Arizona Public Service Co. v. EPA, 562 F.3d 1116 
(10th Cir. 2009).
---------------------------------------------------------------------------

    EPA Region 6 believes that the best policy may be to permit certain 
affirmative defense provisions in the section 110 SIPs of states in 
Region 6, consistent with the Luminant decision, and invites comment on 
this issue. Consistent with the discussion above, EPA Region 6 believes 
that it may be inappropriate to impose a civil penalty on sources for 
sudden and unavoidable emissions caused by circumstances beyond the 
control of the owner or operator. EPA Region 6 recognizes that even 
equipment that is properly designed and maintained can sometimes fail. 
Further, because the specific affirmative defense provisions at issue 
herein apply to excess emissions that cannot be avoided by a source 
operator, removing these affirmative defense provisions from SIPs will 
not reduce emissions and therefore would not result in an environmental 
or public health or welfare benefit. Therefore, EPA Region 6 is 
considering adopting a policy that affirmative defense provisions are 
generally permissible in SIPs when they are adequately protective and 
do not interfere with any applicable requirement of the CAA and invites 
comment on this issue. 42 U.S.C. 7410(k)(3) and (l).

IV. Evaluation of the Affirmative Defense Provisions in the Texas SIP

    As outlined in the previous section, and consistent with the 
Luminant decision, EPA Region 6 is considering reinstating EPA's policy 
that affirmative defense provisions in the SIPs are generally 
approvable in states in Region 6. EPA Region 6 believes that 
affirmative defense SIP provisions may be generally permissible when 
they are adequately protective and do not interfere with any applicable 
requirement of the CAA. As mentioned above, a state's authority to 
establish an enforceable emission limitation in its SIP under CAA 
section 110(a)(2) includes the authority to establish an emission 
limitation that includes an affirmative defense as to civil penalties. 
Upon analyzing 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d) 
and 30 TAC 101.222(e), EPA Region 6 is proposing to determine that 
these provisions are adequately protective and do not interfere with 
any applicable requirement of the CAA and therefore are permissible 
affirmative defense SIP provisions if EPA Region 6 adopts the new 
policy under consideration as outlined in section III.

A. Affirmative Defense Provisions in the Texas State Implementation 
Plan

    Under the Texas SIP, the regulation and control of emissions 
occurring during startups, shutdowns and malfunctions has evolved over 
time.\23\ Upsets and unplanned maintenance, startup, and shutdown (MSS) 
activities are equivalent to malfunctions, and the affirmative defense 
provisions governing emissions during those periods are the subject of 
this proposed rulemaking. In 2005, Texas revised its excess emissions 
regulations.\24\ In particular, the revised regulations included 
narrowly tailored and limited affirmative defenses to civil penalties 
for excess emissions during ``upsets'' and ``unplanned MSS activities'' 
at Texas facilities. See 30 TAC 101.222(b)-(e). Texas submitted these 
provisions to the EPA on June 23, 2006, and the EPA

[[Page 17991]]

approved them into the Texas SIP in 2010. See 75 FR 68989 (Nov. 10, 
2010). The EPA's approval of these provisions as a revision to the 
Texas SIP was challenged but ultimately upheld. See Luminant Generation 
Co. v. EPA, 714 F.3d 841 (5th Cir. 2013, cert. denied). In 2015, in the 
final SSM SIP Action as discussed above, the EPA determined, based on 
NRDC, that these previously approved and upheld affirmative defense 
provisions for malfunctions (upsets and unplanned MSS activities) were 
inconsistent with the CAA and thus the Texas SIP was substantially 
inadequate, and the EPA called on Texas to remove 30 TAC 101.222(b)-(e) 
from the Texas SIP. This action proposes to withdraw the 2015 Texas SIP 
call, and thereby leave in place the EPA's 2010 approval of the Texas 
SIP provisions related to affirmative defenses as to civil penalties 
for excess emissions during upsets and unplanned MSS activities.
---------------------------------------------------------------------------

    \23\ See Luminant Generation Co. v. EPA, 714 F.3d 841, 847-849; 
see also, Part II.A ``TCEQ's Excess Emissions History,'' Comments by 
the Texas Commission on Environmental Quality Regarding State 
Implementation Plans, at 4-9 (November 5, 2014), EPA Docket ID No. 
EPA-HQ-OAR-2012-0322, Document No. 0936.
    \24\ See 30 Tex. Reg. 8884 (December 30, 2005).
---------------------------------------------------------------------------

    According to 30 TAC 101.222(b), which is applicable to emission 
limits in the Texas SIP other than opacity limits, an affirmative 
defense as to civil penalties is available for all claims in 
enforcement actions concerning ``upset events'' that are determined not 
to be excessive emissions events \25\ other than claims for 
administrative technical orders and actions for injunctive relief, for 
which the owner or operator proves all of the following:
---------------------------------------------------------------------------

    \25\ To determine whether an emissions event or emissions events 
are excessive, the following factors are evaluated: (1) The 
frequency of the facility's emissions events; (2) the cause of the 
emissions event; (3) the quantity and impact on human health or the 
environment of the emissions event; (4) the duration of the 
emissions event; (5) the percentage of a facility's total annual 
operating hours during which emissions events occur; and (6) the 
need for startup, shutdown, and maintenance activities. See 30 TAC 
101.222(a). The current EPA-approved Texas SIP does not provide any 
affirmative defense for an emissions event or emissions events that 
are determined to be excessive emission events. Such events are 
required to have a corrective action plan developed and are subject 
to a penalty action.
---------------------------------------------------------------------------

    ``(1) the owner or operator complies with the requirements of Sec.  
101.201 of this title (relating to Emissions Event Reporting and 
Recordkeeping Requirements). In the event the owner or operator fails 
to report as required by Sec.  101.201(a)(2) or (3), (b), or (e) of 
this title, the commission will initiate enforcement for such failure 
to report and for the underlying emissions event itself. This 
subsection does not apply when there are minor omissions or 
inaccuracies that do not impair the commission's ability to review the 
event according to this rule, unless the owner or operator knowingly or 
intentionally falsified the information in the report;
    (2) the unauthorized emissions were caused by a sudden, unavoidable 
breakdown of equipment or process, beyond the control of the owner or 
operator;
    (3) the unauthorized emissions did not stem from any activity or 
event that could have been foreseen and avoided or planned for, and 
could not have been avoided by better operation and maintenance 
practices or technically feasible design consistent with good 
engineering practice;
    (4) the air pollution control equipment or processes were 
maintained and operated in a manner consistent with good practice for 
minimizing emissions and reducing the number of emissions events;
    (5) prompt action was taken to achieve compliance once the operator 
knew or should have known that applicable emission limitations were 
being exceeded, and any necessary repairs were made as expeditiously as 
practicable;
    (6) the amount and duration of the unauthorized emissions and any 
bypass of pollution control equipment were minimized and all possible 
steps were taken to minimize the impact of the unauthorized emissions 
on ambient air quality;
    (7) all emission monitoring systems were kept in operation if 
possible;
    (8) the owner or operator actions in response to the unauthorized 
emissions were documented by contemporaneous operation logs or other 
relevant evidence;
    (9) the unauthorized emissions were not part of a frequent or 
recurring pattern indicative of inadequate design, operation, or 
maintenance;
    (10) the percentage of a facility's total annual operating hours 
during which unauthorized emissions occurred was not unreasonably high; 
and
    (11) the unauthorized emissions did not cause or contribute to an 
exceedance of the national ambient air quality standards (NAAQS), 
prevention of significant deterioration (PSD) increments, or to a 
condition of air pollution.'' \26\
---------------------------------------------------------------------------

    \26\ Texas Health and Safety Code, Title 5. Sanitation and 
Environmental Quality, Subtitle C. Air Quality, Chapter 382. Clean 
Air Act, Subchapter A. General Provisions, Section 382.003(1)(C)(3) 
defines Air Pollution to mean ``the presence in the atmosphere of 
one or more air contaminants or combination of air contaminants in 
such concentration and of such duration that: (A) Are or may tend to 
be injurious to or to adversely affect human health or welfare, 
animal life, vegetation, or property; or (B) interfere with the 
normal use or enjoyment of animal life, vegetation, or property.''
---------------------------------------------------------------------------

    The EPA approved 30 TAC 101.222(b) as a revision to the Texas SIP 
in 2010 because it determined that this provision provides a narrowly 
tailored affirmative defense as to civil penalties for excess emissions 
during an upset event, which the EPA considered equivalent to a 
malfunction event, that was consistent with the interpretation of the 
CAA as set forth in the 1999 Guidance. In particular, these affirmative 
defense provisions only concerned civil penalties for violations 
involving excess emissions during certain defined activities and did 
not preclude actions seeking injunctive relief. In addition, the 
criteria include a requirement that the unauthorized emissions did not 
cause or contribute to an exceedance of a NAAQS, PSD increment, or a 
condition of air pollution. As stated above, excess emissions were 
subject to reporting requirements and an analysis that such emissions 
were not excessive. See 30 TAC 101.201 (relating to emission event 
reporting and recordkeeping requirements) and 30 TAC 101.222(a) 
(relating to excessive emission event determinations). Excess emissions 
determined to be excessive triggered penalty and corrective action plan 
requirements.
    In the Texas SIP, 30 TAC 101.222(d) provides the same affirmative 
defense terms for upset events related to SIP opacity limits. The EPA 
approved 30 TAC 101.222(d) for the same reasons as it approved 30 TAC 
101.222(b). Also, the Texas SIP includes 30 TAC 101.222(c) and 
101.222(e) that provide similar affirmative defenses as to civil 
penalties for unplanned MSS activities that arise from sudden and 
unforeseeable events beyond the control of the operator that require 
immediate corrective action to minimize or avoid an upset or 
malfunction. These provisions allow an affirmative defense as to civil 
penalties where the source owner or operator has the burden to prove 
that such unplanned activities arose from sudden or unforeseeable 
events beyond the control of the operator, that immediate corrective 
action was required to minimize or avoid an upset or malfunction, and 
that the criteria in section 101.222(c) or (e) have been met. In 
approving the provisions into the SIP, the EPA agreed that Texas's 
treatment of unplanned MSS is functionally equivalent to EPA's 1999 
Guidance definition of malfunction. The EPA approved these two 
provisions for the same reasons it approved 30 TAC 101.222(b) and 
101.222(d), interpreting unplanned MSS to mean maintenance or shutdown 
related to a malfunction. A copy of 30 TAC 101.222 showing the specific 
terms for all four affirmative defense-related

[[Page 17992]]

provisions is available in the docket for this action.\27\
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    \27\ In the November 2010 action, the EPA also approved 30 TAC 
Chapter 101, Subchapter A, revised section 101.1 (Definitions); and 
Subchapter F, revised sections 101.201 (Emissions Event Reporting 
and Recordkeeping Requirements) and 101.211 (Scheduled Maintenance, 
Startup, and Shutdown Reporting and Recordkeeping Requirements), and 
new sections 101.221 (Operational Requirements), 101.222 (a) through 
(g) (Demonstrations), and 101.223 (Actions to Reduce Excessive 
Emissions).
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    The EPA-approved Texas SIP also includes 30 TAC 101.222(f) and (g) 
which establish certain restrictions on the applicability of the 
affirmative defenses as to civil penalties in 30 TAC Sec.  101.222(b) 
through (e). For example, 30 TAC 101.222(f) states that the affirmative 
defense provisions do not remove any obligations to comply with any 
other existing permit, rule, or order provisions that are applicable to 
an emissions event or a maintenance, startup or shutdown activity, and 
that the affirmative defense provisions only apply to violations of SIP 
requirements, not to violations of federally promulgated performance or 
technology based standards, such as those found in 40 CFR parts 60, 61, 
and 63. Under 30 TAC 101.222(g), evidence of any past event subject to 
a possible affirmative defense is also admissible and relevant to 
demonstrate a frequent or recurring pattern of events which could 
preclude the successful assertion of the affirmative defense.

B. Application of Region 6 Policy, if Adopted, to Affirmative Defense 
Provisions in the Texas SIP

    The identified provisions in 30 TAC 101.222(b)-(e) provide an 
affirmative defense for non-excessive upset and unplanned events, which 
are equivalent to the term malfunction used in EPA's 1999 Guidance. If 
a violation during an upset or unplanned MSS activity (malfunction) is 
found not to be ``excessive,'' additional specified criteria are met 
(including a demonstration that the unauthorized emissions ``did not 
cause or contribute to an exceedance of the NAAQS, PSD increments, or a 
condition of air pollution''), and the unauthorized emissions ``could 
not have been prevented through planning and design,'' then the 
affirmative defense as to civil penalties is available. 30 TAC 
101.222(b)-(e). Even if all required criteria are met and the owner or 
operator establishes the applicability of the approved affirmative 
defense, the excess emissions are still a violation of the underlying 
emission limit and injunctive relief is still available. See 75 FR 
68991, footnote # 4.
    As first outlined in the action initially approving these 
provisions into Texas's SIP in 2010, the EPA explained that section 
101.222(b) is consistent with EPA's 1999 Guidance for the following 
reasons:

    ``(1) The rule does not provide an exemption from compliance 
with applicable emission limitations; (2) The affirmative defense 
provided is limited to upset or malfunctions; (3) The affirmative 
defense applies only to a judicial or administrative enforcement 
action for a violation of applicable emission limitations; (4) The 
defense applies only to civil penalties and cannot be asserted for 
an enforcement action for injunctive relief; (5) The rule specifies 
criteria, which must be met in order to assert the defense that are 
consistent with those outlined in EPA's 1999 Policy; (6) The burden 
to prove that the criteria have been met is on the owner or 
operator; (7) A determination by TCEQ that the criteria have been 
met does not constitute a waiver of liability for the violation; (8) 
Nothing in the rule, including a determination by the TCEQ, would 
bar EPA or a citizen suit enforcement action for the emission 
violation; (9) The affirmative defense cannot be asserted where the 
unauthorized emissions cause or contribute to an exceedance of the 
NAAQS, PSD increments or to a condition of air pollution; (10) The 
affirmative defense may not be asserted against Federal performance 
or technology-based standards such as NSPS or NESHAP; (11) The 
affirmative defense may not be asserted where the Executive Director 
of TCEQ determines that the emissions event is excessive under the 
criteria in section 101.222(a); and (12) The emissions event must be 
reported to TCEQ under section 101.201 in order for the owner or 
operator to assert the affirmative defense.''

75 FR 26892, 26895 (May 13, 2010).

    EPA further explained that sections 101.222(c) and 101.222(e) 
provide a similar affirmative defense for unplanned maintenance, 
startup or shutdown activities that arise from sudden and unforeseeable 
events beyond the control of the operator that require immediate 
corrective action to minimize or avoid an upset or malfunction. The EPA 
determined that ``unplanned maintenance, startup, or shutdown'' 
activity is functionally equivalent to EPA's 1999 Guidance definition 
of a malfunction. Similar to section 101.222(b), the provisions in 
sections 101.222(c) and 101.222(e) places the burden of proof on a 
source or operator to show that maintenance activities undertaken arose 
from sudden and unforeseeable events beyond the control of the 
operator, that immediate corrective action was required to minimize or 
avoid an upset or malfunction and that outlined criteria, which are 
consistent with EPA's 1999 Guidance, have been met. Id. at 26895-96.
    Finally, the EPA explained that section 101.222(d), which concerns 
excess opacity events for non-excessive upset emission events, contains 
affirmative defense criteria that are specifically tailored for 
opacity-related activities, but follow the pattern of criteria in 
101.222(b). Id. at 26896. Therefore, the EPA determined that the 
criteria in section 101.222(d) were also consistent with our 
interpretation of the Act as outlined in EPA's 1999 Guidance.
    EPA Region 6 is reaffirming all of the above outlined findings from 
the 2010 action. EPA Region 6 has determined that these SIP provisions 
are narrowly tailored to address unavoidable, excess emissions and are 
consistent with the penalty assessment criteria set forth in CAA 
section 113(e). As outlined in section III, EPA Region 6 is considering 
an interpretation that narrowly tailored affirmative defense provisions 
are consistent with CAA requirements in provisions like Texas's where 
the affirmative defense as to civil penalties applies to upset or 
malfunction events. An effective enforcement program must be able to 
collect penalties to deter avoidable violations. 42 U.S.C. 7413. 
However, sources may, despite good operating practices, suffer a 
malfunction due to events beyond the control of the owner or operator 
and be unable to meet emission limitations during periods of startup 
and shutdown. For this reason, EPA Region 6 proposes to determine that 
affirmative defense SIP provisions like those in the Texas SIP, which 
provide a narrowly tailored affirmative defense as to civil penalties 
for circumstances where it is infeasible to meet the applicable limit 
and the source must prove that the source has made all reasonable 
efforts to comply, are consistent with CAA requirements. See Luminant, 
714 F.3d at 852 (upholding the EPA approval of these Texas provisions); 
42 U.S.C. 7410(k)(3) and (l), 7413(e) and 7604(a).
    Based on the above analysis, EPA Region 6 is proposing to reinstate 
its determination that 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 
101.222(d) and 30 TAC 101.222(e) are adequately protective and do not 
interfere with any applicable requirement of the CAA such that they are 
permissible affirmative defense SIP provisions consistent with the new 
EPA Region 6 policy outlined in section III, if adopted. In today's 
proposed action, we are addressing only the affirmative defense 
provisions in the Texas SIP.

V. Proposed Action

    EPA Region 6 is proposing to find that the affirmative defense 
provisions in the Texas SIP applicable to excess

[[Page 17993]]

emissions that occur during upsets (30 TAC 101.222(b)), unplanned 
events (30 TAC 101.222(c)), upsets with respect to opacity limits (30 
TAC 101.222(d)), and unplanned events with respect to opacity limits 
(30 TAC 101.222(e)) do not make the Texas SIP substantially inadequate 
to meet the requirements of the Act. Accordingly, EPA Region 6 is 
proposing to withdraw the SIP call issued to Texas as part of the 2015 
SSM SIP Action. If EPA Region 6 finalizes this action as proposed, 
Texas will no longer have an obligation to submit a SIP revision 
addressing its existing affirmative defense SIP provisions in the 
absence of the SIP call. Texas may choose to withdraw the SIP revision 
it submitted in November 2016 in response to the SIP call, on which the 
EPA has not proposed nor taken action to approve or disapprove.

VI. Statutory and Executive Order Reviews

    Under the Act, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the 
SIP is not approved to apply on any Indian reservation land or in any 
other area where EPA or an Indian tribe has demonstrated that a tribe 
has jurisdiction. In those areas of Indian country, the proposed rule 
does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting 
and recordkeeping requirements, Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: April 23, 2019.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2019-08480 Filed 4-26-19; 8:45 am]
ILLING CODE 6560-50-P