Removal of Affirmative Defense Provisions From Specified New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants, 52425-52430 [2024-13188]
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Federal Register / Vol. 89, No. 121 / Monday, June 24, 2024 / Proposed Rules
(outlining the process of establishing
best available retrofit technology
requirements for sources), State effective
March 30, 2007;
• IDAPA 58.01.01.785 Rules for
control of incinerators (establishing
incinerator particulate matter limits),
State effective May 1, 1994;
• IDAPA 58.01.01.786 Emission
limits (limiting particulate matter
emissions from incinerators), State
effective April 5, 2000;
• IDAPA 58.01.01.787 Exceptions
(exempting wigwam burners from
incinerator emission limits), State
effective March 23, 1998;
• IDAPA 58.01.01.805 Rules for
control of hot mix asphalt plants
(limiting particulate matter emissions
from hot mix asphalt plants), State
effective May 1, 1994;
• IDAPA 58.01.01.806 Emission
limits (requiring compliance with the
process weight rate limitations), State
effective May 1, 1994;
• IDAPA 58.01.01.807 Multiple
stacks (establishing that total emissions
from all stacks are to be compared to the
emission limit), State effective May 1,
1994; and
• IDAPA 58.01.01.808 Fugitive dust
control (requiring fugitive dust control
systems), State effective May 1, 1994.
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V. Incorporation by Reference
In this document, the EPA is
proposing to include in a final rule,
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is proposing to
incorporate by reference the provisions
described in section IV. of this
preamble. The EPA has made, and will
continue to make, these documents
generally available through https://
www.regulations.gov and at the EPA
Region 10 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
The EPA is also proposing to remove
from incorporation by reference the
provisions described in section IV. of
this preamble.
VI. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Clean Air 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 Clean Air Act. Accordingly, this
action merely approves State law as
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meeting Federal requirements and does
not impose additional requirements
beyond those imposed by State law. For
that reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 14094 (88 FR
21879, April 11, 2023);
• 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 subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a State program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act.
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule
would not have Tribal implications and
would not impose substantial direct
costs on Tribal governments or preempt
Tribal law as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000).
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
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52425
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The air agency did not evaluate
environmental justice considerations as
part of its SIP submission; the Clean Air
Act and applicable implementing
regulations neither prohibit nor require
such an evaluation. The EPA did not
perform an EJ analysis and did not
consider EJ in this action. Due to the
nature of the action being taken here,
this action is expected to have a neutral
to positive impact on the air quality of
the affected area. Consideration of EJ is
not required as part of this proposed
action, and there is no information in
the record inconsistent with the stated
goal of Executive Order 12898 of
achieving environmental justice for
people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 13, 2024.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2024–13587 Filed 6–21–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 60 and 63
[EPA–HQ–OAR–2023–0509; FRL–11625–01–
OAR]
RIN 2060–AW16
Removal of Affirmative Defense
Provisions From Specified New Source
Performance Standards and National
Emission Standards for Hazardous Air
Pollutants
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing
amendments to several New Source
Performance Standards (NSPS) and
SUMMARY:
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Federal Register / Vol. 89, No. 121 / Monday, June 24, 2024 / Proposed Rules
National Emission Standards for
Hazardous Air Pollutants (NESHAP)
under the Clean Air Act (CAA).
Specifically, the EPA is proposing to
remove the affirmative defense
provisions associated with violation of
emission standards due to malfunctions.
These provisions are being proposed for
removal because the EPA finds that they
are inconsistent with a D.C. Circuit
Court decision that vacated affirmative
defense provisions in one of the EPA’s
CAA regulations, and because the EPA
finds that the reasoning in the decision
applies equally to other CAA rules.
Since the court decision, the EPA has
been removing affirmative defense
provisions from CAA rules when they
were otherwise revised or amended.
This action proposes to remove the
remaining affirmative defense
provisions more efficiently.
DATES:
Comments. Comments must be
received on or before August 8, 2024.
Public hearing. If anyone contacts us
requesting a public hearing on or before
June 29, 2024, we will hold a virtual
public hearing. See SUPPLEMENTARY
INFORMATION for information on
requesting and registering for a public
hearing.
You may send comments,
identified by Docket ID No. EPA–HQ–
OAR–2023–0509, by any of the
following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov/ (our
preferred method). Follow the online
instructions for submitting comments.
• Email: a-and-r-docket@epa.gov.
Include Docket ID No. EPA–HQ–OAR–
2023–0509 in the subject line of the
message.
• Fax: (202) 566–9744. Attention
Docket ID No. EPA–HQ–OAR–2023–
0509.
• Mail: U.S. Environmental
Protection Agency, EPA Docket Center,
Docket ID No. EPA–HQ–OAR–2023–
0509, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington,
DC 20460.
• Hand/Courier Delivery: EPA Docket
Center, WJC West Building, Room 3334,
1301 Constitution Avenue NW,
Washington, DC 20004. The Docket
Center’s hours of operation are 8:30
a.m.–4:30 p.m., Monday–Friday (except
federal holidays).
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received may be
posted without change to https://
www.regulations.gov/, including any
personal information provided. For
detailed instructions on sending
comments and additional information
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ADDRESSES:
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on the rulemaking process, see the
section of
this document.
FOR FURTHER INFORMATION CONTACT: For
questions about this proposed action,
contact U.S. EPA, Attn. Dr. Michelle
Bergin, Sector Policies and Programs
Division (Mail Code D205–01), P.O. Box
12055, Office of Air Quality Planning
and Standards, U.S. Environmental
Protection Agency 109 T.W. Alexander
Drive, P.O. Box 12055, RTP, North
Carolina 27711; telephone number:
(919) 541–2726; and email address:
bergin.michelle@epa.gov.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and
abbreviations. We use multiple
acronyms and terms in this preamble.
While this list may not be exhaustive, to
ease the reading of this preamble and for
reference purposes, the EPA defines the
following terms and acronyms here:
SUPPLEMENTARY INFORMATION
CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
EPA Environmental Protection Agency
NAICS North American Industry
Classification System
NESHAP National Emission Standards for
Hazardous Air Pollutants
NSPS New Source Performance Standards
SIP state implementation plan
SSM startup, shutdown, and malfunction
Participation in virtual public
hearing. To request a virtual public
hearing, contact the public hearing team
at (888) 372–8699 or by email at
SPPDpublichearing@epa.gov. If
requested, the hearing will be held via
virtual platform on July 9, 2024. The
hearing will convene at 11:00 a.m.
Eastern Time (ET) and will conclude at
3:00 p.m. ET. The EPA may close a
session 15 minutes after the last preregistered speaker has testified if there
are no additional speakers. The EPA
will announce further details at https://
www.epa.gov/stationary-sources-airpollution/removal-affirmative-defenseprovisions-specified-new-source.
If a public hearing is requested, the
EPA will begin pre-registering speakers
for the hearing no later than 1 business
day after a request has been received. To
register to speak at the virtual hearing,
please use the online registration form
available at https://www.epa.gov/
stationary-sources-air-pollution/
removal-affirmative-defense-provisionsspecified-new-source or contact the
public hearing team at (888) 372–8699
or by email at SPPDpublichearing@
epa.gov. The last day to pre-register to
speak at the hearing will be July 6, 2024.
Prior to the hearing, the EPA will post
a general agenda that will list preregistered speakers at: https://
www.epa.gov/stationary-sources-air-
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The EPA will make every effort to
follow the schedule as closely as
possible on the day of the hearing;
however, please plan for the hearings to
run either ahead of schedule or behind
schedule.
Each commenter will have 4 minutes
to provide oral testimony. The EPA
encourages commenters to provide the
EPA with a copy of their oral testimony
electronically (via email) by emailing it
to bergin.michelle@epa.gov. The EPA
also recommends submitting the text of
your oral testimony as written
comments to the rulemaking docket.
The EPA may ask clarifying questions
during the oral presentations but will
not respond to the presentations at that
time. Written statements and supporting
information submitted during the
comment period will be considered
with the same weight as oral testimony
and supporting information presented at
the public hearing.
Please note that any updates made to
any aspect of the hearing will be posted
online at https://www.epa.gov/
stationary-sources-air-pollution/
removal-affirmative-defense-provisionsspecified-new-source. While the EPA
expects the hearing to go forward as set
forth above, please monitor our website
or contact the public hearing team at
(888) 372–8699 or by email at
SPPDpublichearing@epa.gov to
determine if there are any updates. The
EPA does not intend to publish a
document in the Federal Register
announcing updates.
If you require the services of a
translator or special accommodation
such as audio description, please preregister for the hearing with the public
hearing team and describe your needs
by July 1, 2024. The EPA may not be
able to arrange accommodations without
advanced notice.
Docket. The EPA has established a
docket for this rulemaking under Docket
ID No. EPA–HQ–OAR–2023–0509. All
documents in the docket are listed in
https://www.regulations.gov/. Although
listed, some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only as pdf versions that can
only be accessed on the EPA computers
in the docket office reading room.
Certain data bases and physical items
cannot be downloaded from the docket
but may be requested by contacting the
docket office at 202–566–1744. The
docket office has up to 10 business days
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Federal Register / Vol. 89, No. 121 / Monday, June 24, 2024 / Proposed Rules
to respond to these requests. With the
exception of such material, publicly
available docket materials are available
electronically in https://
www.regulations.gov/.
Instructions. Direct your comments to
Docket ID No. EPA–HQ–OAR–2023–
0509. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at https://
www.regulations.gov/, including any
personal information provided, unless
the comment includes information
claimed to be CBI or other information
whose disclosure is restricted by statute.
Do not submit electronically to https://
www.regulations.gov/ any information
that you consider to be CBI or other
information whose disclosure is
restricted by statute. This type of
information should be submitted as
discussed below.
The EPA may publish any comment
received to its public docket.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
generally not consider comments or
comment contents located outside of the
primary submission (i.e., on the Web,
cloud, or other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
The https://www.regulations.gov/
website allows you to submit your
comment anonymously, which means
the EPA will not know your identity or
contact information unless you provide
it in the body of your comment. If you
send an email comment directly to the
EPA without going through https://
www.regulations.gov/, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the internet. If you
submit an electronic comment, the EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
digital storage media you submit. If the
EPA cannot read your comment due to
technical difficulties and cannot contact
you for clarification, the EPA may not
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be able to consider your comment.
Electronic files should not include
special characters or any form of
encryption and be free of any defects or
viruses. For additional information
about the EPA’s public docket, visit the
EPA Docket Center homepage at https://
www.epa.gov/dockets.
Submitting CBI. Do not submit
information containing CBI to the EPA
through https://www.regulations.gov/.
Clearly mark the part or all of the
information that you claim to be CBI.
For CBI information on any digital
storage media that you mail to the EPA,
note the docket ID, mark the outside of
the digital storage media as CBI, and
identify electronically within the digital
storage media the specific information
that is claimed as CBI. In addition to
one complete version of the comments
that includes information claimed as
CBI, you must submit a copy of the
comments that does not contain the
information claimed as CBI directly to
the public docket through the
procedures outlined in Instructions
above. If you submit any digital storage
media that does not contain CBI, mark
the outside of the digital storage media
clearly that it does not contain CBI and
note the docket ID. Information not
marked as CBI will be included in the
public docket and the EPA’s electronic
public docket without prior notice.
Information marked as CBI will not be
disclosed except in accordance with
procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
Our preferred method to receive CBI
is for it to be transmitted electronically
using email attachments, File Transfer
Protocol (FTP), or other online file
sharing services (e.g., Dropbox,
OneDrive, Google Drive). Electronic
submissions must be transmitted
directly to the OAQPS CBI Office at the
email address oaqpscbi@epa.gov, and as
described above, should include clear
CBI markings and note the docket ID. If
assistance is needed with submitting
large electronic files that exceed the file
size limit for email attachments, and if
you do not have your own file sharing
service, please email oaqpscbi@epa.gov
to request a file transfer link. If sending
CBI information through the postal
service, please send it to the following
address: OAQPS Document Control
Officer (C404–02), OAQPS, U.S.
Environmental Protection Agency, P.O.
Box 12055, 109 T.W. Alexander Drive,
Research Triangle Park, North Carolina
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52427
27711, Attention Docket ID No. EPA–
HQ–OAR–2023–0509. The mailed CBI
material should be double wrapped and
clearly marked. Any CBI markings
should not show through the outer
envelope.
Organization of this document. The
information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document
and other related information?
II. Background
III. What action is the EPA proposing to
remove Affirmative Defense?
IV. Summary of Cost, Environmental, and
Economic Impacts
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review, as Amended by
Executive Order 14094: Modernizing
Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act (NTTAA) and 1 CFR
Part 51
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations and Executive Order 14096:
Revitalizing Our Nation’s Commitment
to Environmental Justice for All
I. General Information
A. Does this action apply to me?
This proposal addresses the industrial
source sectors and includes, but is not
limited to, the associated North
American Industry Classification
System (NAICS) codes subject to the
rules shown in table 1 of this preamble.
Table 1 is not intended to be exhaustive,
but rather provides a guide for readers
regarding the entities that this proposed
action is likely to affect. If you have any
questions regarding the applicability of
this action to a particular entity, contact
the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
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Federal Register / Vol. 89, No. 121 / Monday, June 24, 2024 / Proposed Rules
TABLE 1—40 CFR PARTS 60 AND 63 RULES PROPOSED FOR REMOVAL OF AFFIRMATIVE DEFENSE
Source sector
Subpart
NAICS codes 1
Clean Air Act section 111 (40 CFR part 60)
Electric Utility Steam Generating Units (Boilers) ..........................................................................
Kraft Pulp Mills ..............................................................................................................................
Nitric Acid Plants ...........................................................................................................................
Da ...............................
BBa .............................
Ga ...............................
221112, 921150.
3221.
325311.
Chemical Manufacturing Area Sources ........................................................................................
Chromium Electroplating ...............................................................................................................
Coal- and Oil-Fired Electric Utility Steam Generating Units (MATS) ...........................................
VVVVVV (6V) .............
N .................................
UUUUU (5U) ...............
Marine Vessel Loading Operations ...............................................................................................
Pesticide Active Ingredient Production .........................................................................................
Pharmaceuticals Production .........................................................................................................
Polyether Polyols Production ........................................................................................................
Polymers & Resins IV ...................................................................................................................
Primary Lead Processing ..............................................................................................................
Printing and Publishing Surface Coating ......................................................................................
Pulp and Paper Industry ...............................................................................................................
Secondary Lead Smelters .............................................................................................................
Shipbuilding and Ship Repair Surface Coating ............................................................................
Steel Pickling .................................................................................................................................
Wood Furniture Surface Coating ..................................................................................................
Y .................................
MMM ...........................
GGG ...........................
PPP .............................
JJJ ..............................
TTT .............................
KK ...............................
S .................................
X .................................
II ..................................
CCC ............................
JJ ................................
325.
332813.
221112, 221122,
921150.
4883.
325199, 325320.
3254.
325199.
325211.
331419.
32311.
322.
331492.
336611.
3311, 3312.
3371, 3372, 3379.
Clean Air Act section 112 (40 CFR part 63)
1 North
American Industry Classification System (NAICS).
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B. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this action
is available on the internet at https://
www.epa.gov/stationary-sources-airpollution/removal-affirmative-defenseprovisions-specified-new-source.
Following publication in the Federal
Register, the EPA will post the Federal
Register version of the proposal at this
same website.
A memorandum showing the edits
that would be necessary to incorporate
the changes proposed in this action is
available in the docket (Docket ID No.
EPA–HQ–OAR–2023–0509). Following
signature by the EPA Administrator, the
EPA also will post a copy of this
memorandum to https://www.epa.gov/
stationary-sources-air-pollution/
removal-affirmative-defense-provisionsspecified-new-source.
II. Background
In 2008, the United States Court of
Appeals for the District of Columbia
Circuit (the court) vacated portions of 2
provisions governing the emissions of
hazardous air pollutants during periods
of startup, shutdown, and malfunction
(SSM) in the EPA’s CAA section 112
General Provisions regulations (40 CFR
part 63, subpart A). Sierra Club v. EPA,
551 F.3d 1019 (D.C. Cir. 2008). The
court held that under section 302(k) of
the CAA, emissions standards or
limitations must be continuous in
nature and that the SSM exemption
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violates the CAA’s requirement that
CAA section 112 standards must apply
at all times. To address the court
decision, the EPA began amending SSM
provisions in 2010 with the Portland
Cement Manufacturing NESHAP (75 FR
54970, September 9, 2010). In that
action, in response to comments urging
the EPA to not apply the same standards
to malfunctions as to normal operations,
the EPA added an affirmative defense to
civil penalties for when the event that
causes an exceedance of the emission
limit meets the narrow definition of
malfunction.
As defined in each subpart addressed
in this action (see table 1), an
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.’’ This
defense would most likely be applied to
malfunction events that result in noncompliance with any applicable
standards. Malfunctions in this context
are a sudden, infrequent, and not
reasonably preventable failure of air
pollution control and monitoring
equipment, process equipment, or a
process to operate in a normal or usual
manner. See 40 CFR 63.2 and 40 CFR
60.2. Although the EPA recognized that
its case-by-case enforcement discretion
provides sufficient flexibility in these
circumstances, it included the
affirmative defense in some rules to
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provide a more formalized approach to
malfunctions (e.g. 79 FR 1676, 1712).
See also Weyerhaeuser Co. v. Costle, 590
F.2d 1011, 1057–58 (D.C. Cir. 1978)
(holding that an informal case-by-case
enforcement discretion approach is
adequate); but see Marathon Oil Co. v.
EPA, 564 F.2d 1253, 1272–73 (9th Cir.
1977) (requiring a more formalized
approach to consideration of ‘‘upsets
beyond the control of the permit
holder’’). Under the EPA’s regulatory
affirmative defense provisions, if a
source could demonstrate in a judicial
or administrative proceeding that it had
met the requirements of the affirmative
defense in the regulation, civil penalties
would not be assessed.
However, on April 18, 2014, the D.C.
Circuit vacated the portion of the EPA’s
CAA section 112 regulation pertaining
to the affirmative defense in the
NESHAP for the portland cement
manufacturing industry. NRDC v. EPA,
749 F.3d 1055 (2014). The court found
that the EPA lacked authority to
establish an affirmative defense for
private civil suits and held that CAA
section 304(a) clearly vests the authority
over private suits exclusively with the
courts, not the EPA. Id. at 1063.
In light of the NRDC decision, the
EPA has been removing affirmative
defense provisions from CAA section
112 rules.1 Additionally, the EPA
1 For example, see affirmative defense removed
in the ‘‘National Emission Standards for Hazardous
Air Pollutants for Major Sources: Industrial,
Commercial, and Institutional Boilers and Process
Heaters’’ (80 FR 72789, Sept. 20, 2015) and in
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determined that although the NRDC
decision addressed a CAA section 112
rule, the court’s rationale also applies to
affirmative defense provisions in CAA
section 111 rules; accordingly, the EPA
has also removed affirmative defense
provisions from those rules when they
were otherwise revised or amended.2 3
As indicated in these actions, the EPA
will continue to evaluate violations on
a case-by-case basis and determine
whether an enforcement action is
appropriate.
If the EPA determines that bringing an
enforcement action under CAA section
113(d)(2)(B) against a source for a
violation of an emission standard is
warranted, the source can raise any and
all defenses in response and the federal
district court will determine what, if
any, relief is appropriate. The presiding
officer in an administrative proceeding
can consider any defense raised and
determine whether administrative
penalties are appropriate.4 Similarly, as
the court recognized, in a citizen
enforcement action brought under CAA
section 304(a), the reviewing court has
the discretion to consider any defense
raised when determining whether
penalties are appropriate. Cf. NRDC, 749
F.3d at 1064.
Following the NRDC decision, on
June 17, 2014, Sierra Club filed an
administrative petition requesting the
EPA to remove the affirmative defense
provisions from a set of 29 rules.5 On
‘‘National Emission Standards for Hazardous Air
Pollutants for Area Sources: Industrial, Commercial,
and Institutional Boilers’’ (81 FR 63112, Sept. 14,
2016).
2 For example, see ‘‘Oil and Natural Gas Sector:
Reconsideration of Additional Provisions of New
Source Performance Standards’’ (79 FR 79017, Dec.
31, 2014) (affirmative defense provision removed);
and ‘‘Standards of Performance for Greenhouse Gas
Emissions From New, Modified, and Reconstructed
Stationary Sources: Electric Utility Generating
Units’’ (80 FR 64509, Sept. 23, 2015) (declining to
finalize proposed affirmative defense provision).
3 In March 2024, the D.C. Circuit issued a
decision in Environmental Committee of the Florida
Electric Power Coordinating Group v. EPA, No. 15–
1239. Petitioners challenged an EPA final action
relating to SSM provisions in state implementation
plans (SIPs), and the court’s holding was premised
on certain language in CAA 110(a)(2)(A), which
only applies to SIPs and not source sector rules
under CAA sections 111 and 112.
4 Although the NRDC case does not address the
EPA’s authority to establish an affirmative defense
to penalties that are available in administrative
enforcement actions, we are not proposing such an
affirmative defense for the rules addressed by this
action. As explained, such an affirmative defense is
not necessary. Moreover, assessment of penalties for
violations caused by malfunctions in administrative
proceedings and judicial proceedings should be
consistent. Cf. CAA section 113(e) (requiring both
the Administrator and the court to take specified
criteria into account when assessing penalties).
5 Petition to Revise Air Emission Regulations
Containing Affirmative Defense (Jun. 17, 2014). The
twenty-nine rules addressed in the 2014
administrative petition include: under New Source
VerDate Sep<11>2014
15:59 Jun 21, 2024
Jkt 262001
July 14, 2014, Sierra Club also filed a
petition seeking judicial review of nine
Federal Register actions which
included 17 source sector rules that
contain affirmative defense provisions
promulgated by the EPA under the CAA
in 2011 and 2012 (Case No. 14–1110
(D.C. Cir.)). In November 2014, the EPA
granted the administrative petition,
stating that the EPA will continue the
ongoing process of removing affirmative
defenses from the remaining rules
included in the petition as
expeditiously as practicable.6 While the
EPA has made significant progress in
removing the affirmative defense
provision from individual rules as the
rules are opened for periodic review
(including 3 from the administrative
petition 7), this action furthers that
progress more efficiently by proposing
to remove the affirmative defense
provision from 18 rules, shown in Table
Performance Standards (CAA section 111)—40 CFR
part 60 Subpart Da: Electric Utility Steam
Generating-Units; Subpart Ga: Nitric Acid Plants for
Which Construction, Reconstruction, or
Modification Commenced After October 14, 2011;
Subpart BBa: Kraft Pulp Mill Affected Sources for
Which Construction, Reconstruction, or
Modification Commenced After May 23, 2013; and
Subpart OOOO: Crude Oil and Natural Gas
Production, Transmission and Distribution. Under
Solid waste combustion New Source Performance
Standards & Emission Guidelines (CAA section
129)—40 CFR part 60 Subpart CCCC: Commercial
and Industrial Solid Waste Incineration Units
(new); Subpart DDDD: Commercial and Industrial
Solid Waste Incineration Units (existing); Subpart
LLLL: New Sewage Sludge Incineration Units; and
Subpart MMMM: Existing Sewage Sludge
Incineration Units. Under National Emission
Standards for Hazardous Air Pollutants (CAA
section 112)—40 CFR part 63 Subpart N: Chromium
Emissions from Hard and Decorative Chromium
Electroplating and Chromium Anodizing Tanks;
Subpart S: Pulp and Paper Industry; Subpart U:
Group I Polymers and Resins; Subpart X: Secondary
Lead Smelting; Subpart Y: Marine Tank Vessel
Tank Loading Operations; Subpart HH: Oil and
Natural Gas Production Facilities; Subpart II:
Shipbuilding and Ship Repair (Surface Coating);
Subpart JJ: Wood Furniture Manufacturing
Operations; Subpart KK: Printing and Publishing
Industry; Subpart CCC: Steel Pickling-HCl Process
Facilities and Hydrochloric Acid Regeneration
Plants; Subpart GGG: Pharmaceuticals Production;
Subpart HHH: Natural Gas Transmission and
Storage Facilities; Subpart JJJ: Group IV Polymers
and Resins; Subpart MMM: Pesticide Active
Ingredient Production; Subpart PPP: Polyether
Polyols Production; Subpart TTT: Primary Lead
Smelting; Subpart DDDDD: Major Sources:
Industrial, Commercial, and Institutional Boilers
and Process Heaters; Subpart UUUUU: Coal- and
Oil-Fired Electric Utility Steam Generating Units;
Subpart JJJJJJ: Industrial, Commercial, and
Institutional Boilers Area Sources; Subpart
VVVVVV: Chemical Manufacturing Area Sources;
Subpart HHHHHHH: Polyvinyl Chloride and
Copolymers Production.
6 Letter from J. McCabe, Acting EPA
Administrator, to S. Johnson, Earthjustice (Nov. 19,
2014).
7 40 CFR part 60 subpart OOOO (79 FR 79017,
Dec. 31, 2014) and 40 CFR part 63 subparts DDDDD
(80 FR 72789, Nov. 20, 2015) and JJJJJJ (81 FR
63112, Sept. 14, 2016).
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Sfmt 4702
52429
1. This proposal does not address 5
rules (4 from the petition) for which
removal of affirmative defense
provisions has already been proposed
but not yet finalized.8 Finally, this
action is not proposing removal of
affirmative defense provisions from any
waste incineration rules under CAA
section 129, which will be addressed at
a later time.
III. What action is the EPA proposing
to remove Affirmative Defense?
The EPA is proposing to remove the
definition of affirmative defense and
revise or remove and reserve regulatory
sections that contain affirmative defense
provisions from the eighteen source
sector rules shown in table 1 of this
preamble. These source sector rules are
each codified under either 40 CFR part
60 or part 63 (NSPS and NESHAP,
respectively). A memorandum showing
the edits that would be necessary to
incorporate the changes proposed in
this action is available in the docket
(Docket ID No. EPA–HQ–OAR–2023–
0509). Following signature by the EPA
Administrator, the EPA also will post a
copy of this memorandum to https://
www.epa.gov/stationary-sources-airpollution/removal-affirmative-defenseprovisions-specified-new-source. The
EPA is soliciting comment on if there
are any rules not listed in table 1 of this
preamble that are under CAA sections
111 or 112 and have remaining
affirmative defense provisions that the
EPA needs to consider for removal. The
EPA is also soliciting comment on if
there are any additional considerations
related to removal of affirmative defense
provisions than addressed by this
proposal. This document does not
address or reopen any provisions in
these regulations other than removal of
provisions related to affirmative
defense.
IV. Summary of Cost, Environmental,
and Economic Impacts
There are no air quality or cost
impacts associated with the proposed
amendments and, therefore, there are
also no economic impacts. The
affirmative defense provisions did not
affect the stringency of or compliance
requirements with affected standards in
40 CFR parts 60 and 63. The removal of
the affirmative defense provisions does
not have a material impact on the
obligation for sources to comply with
their respective standards, or on the
ability of federal or state agencies to
enforce such standards. When the EPA
originally promulgated the affirmative
8 40 CFR part 63 subparts U, HH, HHH, DDDDDD
and HHHHHHH.
E:\FR\FM\24JNP1.SGM
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52430
Federal Register / Vol. 89, No. 121 / Monday, June 24, 2024 / Proposed Rules
defense provisions in the rules
addressed in this proposed action, the
EPA estimated a small administrative
burden to report deviations from
standards as a result of malfunctions
that included the option for an owner or
operator to offer an affirmative defense.
The proposed removal of the affirmative
defense provisions does not affect that
small administrative burden because the
EPA expects that sources will continue
to collect similar information in order to
defend any compliance actions against a
source. In addition, as required by the
individual rules, sources will continue
to report information regarding
malfunctions that result in a failure to
meet the standards.
administrative burden to report
deviations from standards as a result of
malfunctions that included the option
for an owner or operator to offer an
affirmative defense. The proposed
removal of the affirmative defense
provisions does not affect that small
administrative burden because the EPA
expects that sources will continue to
collect similar information in order to
defend any compliance actions against a
source. We have therefore concluded
that this action will have no net
regulatory burden for all directly
regulated small entities.
V. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local or
tribal governments or the private sector.
A. Executive Order 12866: Regulatory
Planning and Review, as Amended by
Executive Order 14094: Modernizing
Regulatory Review
This action is not a significant
regulatory action as defined in
Executive Order 12866, as amended by
Executive Order 14094, and was
therefore not subject to a requirement
for Executive Order 12866 review.
E. Executive Order 13132: Federalism
lotter on DSK11XQN23PROD with PROPOSALS1
B. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden under the
PRA. OMB has previously approved the
information collection activities
contained in the existing regulations.
The removal of provisions for
affirmative defense does not change any
mandatory recordkeeping, reporting, or
other activity previously established
under prior final rules.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. In making this
determination, the EPA concludes that
this rule will not have any significant
adverse economic impact on small
entities because the rule has no net
burden on the small entities subject to
the rule. The removal of the affirmative
defense provisions does not have a
material impact on the obligation for
sources to comply with their respective
standards, or on the ability of federal or
state agencies to enforce such standards.
When the EPA originally promulgated
the affirmative defense provisions in the
rules addressed in this proposed action,
the EPA estimated a small
VerDate Sep<11>2014
15:59 Jun 21, 2024
Jkt 262001
D. Unfunded Mandates Reform Act
(UMRA)
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. It will not have substantial
direct effects on tribal governments, on
the relationship between the federal
government and Indian tribes, or on the
distribution of power and
responsibilities between the federal
government and Indian tribes, as
specified in Executive Order 13175.
Thus, Executive Order 13175 does not
apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
The EPA interprets Executive Order
13045 as applying only to those
regulatory actions that concern
environmental health or safety risks that
the EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. Therefore, this action
is not subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
Since this action does not concern
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
human health, the EPA’s Policy on
Children’s Health also does not apply.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act (NTTAA) and 1 CFR
Part 51
This rulemaking does not involve
technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations and Executive
Order 14096: Revitalizing Our Nation’s
Commitment to Environmental Justice
for All
The EPA believes that this action does
not concern human health or
environmental conditions and therefore
cannot be evaluated with respect to
potentially disproportionate and
adverse effects on communities with
environmental justice concerns. This
action does not change the underlying
standards that have an impact on
human health and the environment.
Michael S. Regan,
Administrator.
[FR Doc. 2024–13188 Filed 6–21–24; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 24–152; RM–11982; DA 24–
558; FR ID 226621]
Television Broadcasting Services
Boise, Idaho
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
The Video Division, Media
Bureau (Bureau), has before it a petition
for rulemaking filed May 10, 2024, by
King Broadcasting Company
(Petitioner), the licensee of KTVB,
channel 7, Boise, Idaho (Station or
KTVB). The Petitioner requests the
substitution of channel 23 for channel 7
at Boise, Idaho (Boise), in the Table of
TV Allotments.
DATES: Comments must be filed on or
before July 24, 2024 and reply
comments on or before August 8, 2024.
SUMMARY:
E:\FR\FM\24JNP1.SGM
24JNP1
]]>Agencies
[Federal Register Volume 89, Number 121 (Monday, June 24, 2024)]
[Proposed Rules]
[Pages 52425-52430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13188]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60 and 63
[EPA-HQ-OAR-2023-0509; FRL-11625-01-OAR]
RIN 2060-AW16
Removal of Affirmative Defense Provisions From Specified New
Source Performance Standards and National Emission Standards for
Hazardous Air Pollutants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is proposing amendments to several New Source
Performance Standards (NSPS) and
[[Page 52426]]
National Emission Standards for Hazardous Air Pollutants (NESHAP) under
the Clean Air Act (CAA). Specifically, the EPA is proposing to remove
the affirmative defense provisions associated with violation of
emission standards due to malfunctions. These provisions are being
proposed for removal because the EPA finds that they are inconsistent
with a D.C. Circuit Court decision that vacated affirmative defense
provisions in one of the EPA's CAA regulations, and because the EPA
finds that the reasoning in the decision applies equally to other CAA
rules. Since the court decision, the EPA has been removing affirmative
defense provisions from CAA rules when they were otherwise revised or
amended. This action proposes to remove the remaining affirmative
defense provisions more efficiently.
DATES:
Comments. Comments must be received on or before August 8, 2024.
Public hearing. If anyone contacts us requesting a public hearing
on or before June 29, 2024, we will hold a virtual public hearing. See
SUPPLEMENTARY INFORMATION for information on requesting and registering
for a public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2023-0509, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2023-0509 in the subject line of the message.
Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2023-0509.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2023-0509, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Hand/Courier Delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact U.S. EPA, Attn. Dr. Michelle Bergin, Sector Policies
and Programs Division (Mail Code D205-01), P.O. Box 12055, Office of
Air Quality Planning and Standards, U.S. Environmental Protection
Agency 109 T.W. Alexander Drive, P.O. Box 12055, RTP, North Carolina
27711; telephone number: (919) 541-2726; and email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. We use multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:
CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
EPA Environmental Protection Agency
NAICS North American Industry Classification System
NESHAP National Emission Standards for Hazardous Air Pollutants
NSPS New Source Performance Standards
SIP state implementation plan
SSM startup, shutdown, and malfunction
Participation in virtual public hearing. To request a virtual
public hearing, contact the public hearing team at (888) 372-8699 or by
email at [email protected]. If requested, the hearing will be
held via virtual platform on July 9, 2024. The hearing will convene at
11:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. ET. The EPA
may close a session 15 minutes after the last pre-registered speaker
has testified if there are no additional speakers. The EPA will
announce further details at https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source.
If a public hearing is requested, the EPA will begin pre-
registering speakers for the hearing no later than 1 business day after
a request has been received. To register to speak at the virtual
hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source or contact the public hearing
team at (888) 372-8699 or by email at [email protected]. The
last day to pre-register to speak at the hearing will be July 6, 2024.
Prior to the hearing, the EPA will post a general agenda that will list
pre-registered speakers at: https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 4 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) by emailing it to
[email protected]. The EPA also recommends submitting the text of
your oral testimony as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source.
While the EPA expects the hearing to go forward as set forth above,
please monitor our website or contact the public hearing team at (888)
372-8699 or by email at [email protected] to determine if there
are any updates. The EPA does not intend to publish a document in the
Federal Register announcing updates.
If you require the services of a translator or special
accommodation such as audio description, please pre-register for the
hearing with the public hearing team and describe your needs by July 1,
2024. The EPA may not be able to arrange accommodations without
advanced notice.
Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2023-0509. All documents in the docket are
listed in https://www.regulations.gov/. Although listed, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only as pdf
versions that can only be accessed on the EPA computers in the docket
office reading room. Certain data bases and physical items cannot be
downloaded from the docket but may be requested by contacting the
docket office at 202-566-1744. The docket office has up to 10 business
days
[[Page 52427]]
to respond to these requests. With the exception of such material,
publicly available docket materials are available electronically in
https://www.regulations.gov/.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2023-0509. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at https://www.regulations.gov/, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute. Do not submit electronically to https://www.regulations.gov/
any information that you consider to be CBI or other information whose
disclosure is restricted by statute. This type of information should be
submitted as discussed below.
The EPA may publish any comment received to its public docket.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
The https://www.regulations.gov/ website allows you to submit your
comment anonymously, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
https://www.regulations.gov/, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, the EPA recommends that you include your name and
other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should not include special characters or any form of encryption and be
free of any defects or viruses. For additional information about the
EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.
Submitting CBI. Do not submit information containing CBI to the EPA
through https://www.regulations.gov/. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, note the docket ID,
mark the outside of the digital storage media as CBI, and identify
electronically within the digital storage media the specific
information that is claimed as CBI. In addition to one complete version
of the comments that includes information claimed as CBI, you must
submit a copy of the comments that does not contain the information
claimed as CBI directly to the public docket through the procedures
outlined in Instructions above. If you submit any digital storage media
that does not contain CBI, mark the outside of the digital storage
media clearly that it does not contain CBI and note the docket ID.
Information not marked as CBI will be included in the public docket and
the EPA's electronic public docket without prior notice. Information
marked as CBI will not be disclosed except in accordance with
procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office at the email address [email protected], and as
described above, should include clear CBI markings and note the docket
ID. If assistance is needed with submitting large electronic files that
exceed the file size limit for email attachments, and if you do not
have your own file sharing service, please email [email protected] to
request a file transfer link. If sending CBI information through the
postal service, please send it to the following address: OAQPS Document
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency,
P.O. Box 12055, 109 T.W. Alexander Drive, Research Triangle Park, North
Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2023-0509. The
mailed CBI material should be double wrapped and clearly marked. Any
CBI markings should not show through the outer envelope.
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Background
III. What action is the EPA proposing to remove Affirmative Defense?
IV. Summary of Cost, Environmental, and Economic Impacts
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, as
Amended by Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA) and
1 CFR Part 51
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
I. General Information
A. Does this action apply to me?
This proposal addresses the industrial source sectors and includes,
but is not limited to, the associated North American Industry
Classification System (NAICS) codes subject to the rules shown in table
1 of this preamble. Table 1 is not intended to be exhaustive, but
rather provides a guide for readers regarding the entities that this
proposed action is likely to affect. If you have any questions
regarding the applicability of this action to a particular entity,
contact the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
[[Page 52428]]
Table 1--40 CFR Parts 60 and 63 Rules Proposed for Removal of Affirmative Defense
----------------------------------------------------------------------------------------------------------------
Source sector Subpart NAICS codes \1\
----------------------------------------------------------------------------------------------------------------
Clean Air Act section 111 (40 CFR part 60)
----------------------------------------------------------------------------------------------------------------
Electric Utility Steam Generating Units (Boilers).... Da.......................... 221112, 921150.
Kraft Pulp Mills..................................... BBa......................... 3221.
Nitric Acid Plants................................... Ga.......................... 325311.
----------------------------------------------------------------------------------------------------------------
Clean Air Act section 112 (40 CFR part 63)
----------------------------------------------------------------------------------------------------------------
Chemical Manufacturing Area Sources.................. VVVVVV (6V)................. 325.
Chromium Electroplating.............................. N........................... 332813.
Coal- and Oil-Fired Electric Utility Steam Generating UUUUU (5U).................. 221112, 221122, 921150.
Units (MATS).
Marine Vessel Loading Operations..................... Y........................... 4883.
Pesticide Active Ingredient Production............... MMM......................... 325199, 325320.
Pharmaceuticals Production........................... GGG......................... 3254.
Polyether Polyols Production......................... PPP......................... 325199.
Polymers & Resins IV................................. JJJ......................... 325211.
Primary Lead Processing.............................. TTT......................... 331419.
Printing and Publishing Surface Coating.............. KK.......................... 32311.
Pulp and Paper Industry.............................. S........................... 322.
Secondary Lead Smelters.............................. X........................... 331492.
Shipbuilding and Ship Repair Surface Coating......... II.......................... 336611.
Steel Pickling....................................... CCC......................... 3311, 3312.
Wood Furniture Surface Coating....................... JJ.......................... 3371, 3372, 3379.
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\1\ North American Industry Classification System (NAICS).
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this action is available on the internet at https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source. Following publication in the Federal
Register, the EPA will post the Federal Register version of the
proposal at this same website.
A memorandum showing the edits that would be necessary to
incorporate the changes proposed in this action is available in the
docket (Docket ID No. EPA-HQ-OAR-2023-0509). Following signature by the
EPA Administrator, the EPA also will post a copy of this memorandum to
https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source.
II. Background
In 2008, the United States Court of Appeals for the District of
Columbia Circuit (the court) vacated portions of 2 provisions governing
the emissions of hazardous air pollutants during periods of startup,
shutdown, and malfunction (SSM) in the EPA's CAA section 112 General
Provisions regulations (40 CFR part 63, subpart A). Sierra Club v. EPA,
551 F.3d 1019 (D.C. Cir. 2008). The court held that under section
302(k) of the CAA, emissions standards or limitations must be
continuous in nature and that the SSM exemption violates the CAA's
requirement that CAA section 112 standards must apply at all times. To
address the court decision, the EPA began amending SSM provisions in
2010 with the Portland Cement Manufacturing NESHAP (75 FR 54970,
September 9, 2010). In that action, in response to comments urging the
EPA to not apply the same standards to malfunctions as to normal
operations, the EPA added an affirmative defense to civil penalties for
when the event that causes an exceedance of the emission limit meets
the narrow definition of malfunction.
As defined in each subpart addressed in this action (see table 1),
an 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.'' This defense would most likely be applied
to malfunction events that result in non-compliance with any applicable
standards. Malfunctions in this context are a sudden, infrequent, and
not reasonably preventable failure of air pollution control and
monitoring equipment, process equipment, or a process to operate in a
normal or usual manner. See 40 CFR 63.2 and 40 CFR 60.2. Although the
EPA recognized that its case-by-case enforcement discretion provides
sufficient flexibility in these circumstances, it included the
affirmative defense in some rules to provide a more formalized approach
to malfunctions (e.g. 79 FR 1676, 1712). See also Weyerhaeuser Co. v.
Costle, 590 F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an
informal case-by-case enforcement discretion approach is adequate); but
see Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977)
(requiring a more formalized approach to consideration of ``upsets
beyond the control of the permit holder''). Under the EPA's regulatory
affirmative defense provisions, if a source could demonstrate in a
judicial or administrative proceeding that it had met the requirements
of the affirmative defense in the regulation, civil penalties would not
be assessed.
However, on April 18, 2014, the D.C. Circuit vacated the portion of
the EPA's CAA section 112 regulation pertaining to the affirmative
defense in the NESHAP for the portland cement manufacturing industry.
NRDC v. EPA, 749 F.3d 1055 (2014). The court found that the EPA lacked
authority to establish an affirmative defense for private civil suits
and held that CAA section 304(a) clearly vests the authority over
private suits exclusively with the courts, not the EPA. Id. at 1063.
In light of the NRDC decision, the EPA has been removing
affirmative defense provisions from CAA section 112 rules.\1\
Additionally, the EPA
[[Page 52429]]
determined that although the NRDC decision addressed a CAA section 112
rule, the court's rationale also applies to affirmative defense
provisions in CAA section 111 rules; accordingly, the EPA has also
removed affirmative defense provisions from those rules when they were
otherwise revised or amended.2 3 As indicated in these
actions, the EPA will continue to evaluate violations on a case-by-case
basis and determine whether an enforcement action is appropriate.
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\1\ For example, see affirmative defense removed in the
``National Emission Standards for Hazardous Air Pollutants for Major
Sources: Industrial, Commercial, and Institutional Boilers and
Process Heaters'' (80 FR 72789, Sept. 20, 2015) and in ``National
Emission Standards for Hazardous Air Pollutants for Area Sources:
Industrial, Commercial, and Institutional Boilers'' (81 FR 63112,
Sept. 14, 2016).
\2\ For example, see ``Oil and Natural Gas Sector:
Reconsideration of Additional Provisions of New Source Performance
Standards'' (79 FR 79017, Dec. 31, 2014) (affirmative defense
provision removed); and ``Standards of Performance for Greenhouse
Gas Emissions From New, Modified, and Reconstructed Stationary
Sources: Electric Utility Generating Units'' (80 FR 64509, Sept. 23,
2015) (declining to finalize proposed affirmative defense
provision).
\3\ In March 2024, the D.C. Circuit issued a decision in
Environmental Committee of the Florida Electric Power Coordinating
Group v. EPA, No. 15-1239. Petitioners challenged an EPA final
action relating to SSM provisions in state implementation plans
(SIPs), and the court's holding was premised on certain language in
CAA 110(a)(2)(A), which only applies to SIPs and not source sector
rules under CAA sections 111 and 112.
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If the EPA determines that bringing an enforcement action under CAA
section 113(d)(2)(B) against a source for a violation of an emission
standard is warranted, the source can raise any and all defenses in
response and the federal district court will determine what, if any,
relief is appropriate. The presiding officer in an administrative
proceeding can consider any defense raised and determine whether
administrative penalties are appropriate.\4\ Similarly, as the court
recognized, in a citizen enforcement action brought under CAA section
304(a), the reviewing court has the discretion to consider any defense
raised when determining whether penalties are appropriate. Cf. NRDC,
749 F.3d at 1064.
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\4\ Although the NRDC case does not address the EPA's authority
to establish an affirmative defense to penalties that are available
in administrative enforcement actions, we are not proposing such an
affirmative defense for the rules addressed by this action. As
explained, such an affirmative defense is not necessary. Moreover,
assessment of penalties for violations caused by malfunctions in
administrative proceedings and judicial proceedings should be
consistent. Cf. CAA section 113(e) (requiring both the Administrator
and the court to take specified criteria into account when assessing
penalties).
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Following the NRDC decision, on June 17, 2014, Sierra Club filed an
administrative petition requesting the EPA to remove the affirmative
defense provisions from a set of 29 rules.\5\ On July 14, 2014, Sierra
Club also filed a petition seeking judicial review of nine Federal
Register actions which included 17 source sector rules that contain
affirmative defense provisions promulgated by the EPA under the CAA in
2011 and 2012 (Case No. 14-1110 (D.C. Cir.)). In November 2014, the EPA
granted the administrative petition, stating that the EPA will continue
the ongoing process of removing affirmative defenses from the remaining
rules included in the petition as expeditiously as practicable.\6\
While the EPA has made significant progress in removing the affirmative
defense provision from individual rules as the rules are opened for
periodic review (including 3 from the administrative petition \7\),
this action furthers that progress more efficiently by proposing to
remove the affirmative defense provision from 18 rules, shown in Table
1. This proposal does not address 5 rules (4 from the petition) for
which removal of affirmative defense provisions has already been
proposed but not yet finalized.\8\ Finally, this action is not
proposing removal of affirmative defense provisions from any waste
incineration rules under CAA section 129, which will be addressed at a
later time.
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\5\ Petition to Revise Air Emission Regulations Containing
Affirmative Defense (Jun. 17, 2014). The twenty-nine rules addressed
in the 2014 administrative petition include: under New Source
Performance Standards (CAA section 111)--40 CFR part 60 Subpart Da:
Electric Utility Steam Generating-Units; Subpart Ga: Nitric Acid
Plants for Which Construction, Reconstruction, or Modification
Commenced After October 14, 2011; Subpart BBa: Kraft Pulp Mill
Affected Sources for Which Construction, Reconstruction, or
Modification Commenced After May 23, 2013; and Subpart OOOO: Crude
Oil and Natural Gas Production, Transmission and Distribution. Under
Solid waste combustion New Source Performance Standards & Emission
Guidelines (CAA section 129)--40 CFR part 60 Subpart CCCC:
Commercial and Industrial Solid Waste Incineration Units (new);
Subpart DDDD: Commercial and Industrial Solid Waste Incineration
Units (existing); Subpart LLLL: New Sewage Sludge Incineration
Units; and Subpart MMMM: Existing Sewage Sludge Incineration Units.
Under National Emission Standards for Hazardous Air Pollutants (CAA
section 112)--40 CFR part 63 Subpart N: Chromium Emissions from Hard
and Decorative Chromium Electroplating and Chromium Anodizing Tanks;
Subpart S: Pulp and Paper Industry; Subpart U: Group I Polymers and
Resins; Subpart X: Secondary Lead Smelting; Subpart Y: Marine Tank
Vessel Tank Loading Operations; Subpart HH: Oil and Natural Gas
Production Facilities; Subpart II: Shipbuilding and Ship Repair
(Surface Coating); Subpart JJ: Wood Furniture Manufacturing
Operations; Subpart KK: Printing and Publishing Industry; Subpart
CCC: Steel Pickling-HCl Process Facilities and Hydrochloric Acid
Regeneration Plants; Subpart GGG: Pharmaceuticals Production;
Subpart HHH: Natural Gas Transmission and Storage Facilities;
Subpart JJJ: Group IV Polymers and Resins; Subpart MMM: Pesticide
Active Ingredient Production; Subpart PPP: Polyether Polyols
Production; Subpart TTT: Primary Lead Smelting; Subpart DDDDD: Major
Sources: Industrial, Commercial, and Institutional Boilers and
Process Heaters; Subpart UUUUU: Coal- and Oil-Fired Electric Utility
Steam Generating Units; Subpart JJJJJJ: Industrial, Commercial, and
Institutional Boilers Area Sources; Subpart VVVVVV: Chemical
Manufacturing Area Sources; Subpart HHHHHHH: Polyvinyl Chloride and
Copolymers Production.
\6\ Letter from J. McCabe, Acting EPA Administrator, to S.
Johnson, Earthjustice (Nov. 19, 2014).
\7\ 40 CFR part 60 subpart OOOO (79 FR 79017, Dec. 31, 2014) and
40 CFR part 63 subparts DDDDD (80 FR 72789, Nov. 20, 2015) and
JJJJJJ (81 FR 63112, Sept. 14, 2016).
\8\ 40 CFR part 63 subparts U, HH, HHH, DDDDDD and HHHHHHH.
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III. What action is the EPA proposing to remove Affirmative Defense?
The EPA is proposing to remove the definition of affirmative
defense and revise or remove and reserve regulatory sections that
contain affirmative defense provisions from the eighteen source sector
rules shown in table 1 of this preamble. These source sector rules are
each codified under either 40 CFR part 60 or part 63 (NSPS and NESHAP,
respectively). A memorandum showing the edits that would be necessary
to incorporate the changes proposed in this action is available in the
docket (Docket ID No. EPA-HQ-OAR-2023-0509). Following signature by the
EPA Administrator, the EPA also will post a copy of this memorandum to
https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source. The EPA is
soliciting comment on if there are any rules not listed in table 1 of
this preamble that are under CAA sections 111 or 112 and have remaining
affirmative defense provisions that the EPA needs to consider for
removal. The EPA is also soliciting comment on if there are any
additional considerations related to removal of affirmative defense
provisions than addressed by this proposal. This document does not
address or reopen any provisions in these regulations other than
removal of provisions related to affirmative defense.
IV. Summary of Cost, Environmental, and Economic Impacts
There are no air quality or cost impacts associated with the
proposed amendments and, therefore, there are also no economic impacts.
The affirmative defense provisions did not affect the stringency of or
compliance requirements with affected standards in 40 CFR parts 60 and
63. The removal of the affirmative defense provisions does not have a
material impact on the obligation for sources to comply with their
respective standards, or on the ability of federal or state agencies to
enforce such standards. When the EPA originally promulgated the
affirmative
[[Page 52430]]
defense provisions in the rules addressed in this proposed action, the
EPA estimated a small administrative burden to report deviations from
standards as a result of malfunctions that included the option for an
owner or operator to offer an affirmative defense. The proposed removal
of the affirmative defense provisions does not affect that small
administrative burden because the EPA expects that sources will
continue to collect similar information in order to defend any
compliance actions against a source. In addition, as required by the
individual rules, sources will continue to report information regarding
malfunctions that result in a failure to meet the standards.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, as Amended by
Executive Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations. The removal of
provisions for affirmative defense does not change any mandatory
recordkeeping, reporting, or other activity previously established
under prior final rules.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the EPA concludes that this rule will not
have any significant adverse economic impact on small entities because
the rule has no net burden on the small entities subject to the rule.
The removal of the affirmative defense provisions does not have a
material impact on the obligation for sources to comply with their
respective standards, or on the ability of federal or state agencies to
enforce such standards. When the EPA originally promulgated the
affirmative defense provisions in the rules addressed in this proposed
action, the EPA estimated a small administrative burden to report
deviations from standards as a result of malfunctions that included the
option for an owner or operator to offer an affirmative defense. The
proposed removal of the affirmative defense provisions does not affect
that small administrative burden because the EPA expects that sources
will continue to collect similar information in order to defend any
compliance actions against a source. We have therefore concluded that
this action will have no net regulatory burden for all directly
regulated small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the federal government
and Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. Therefore, this action is not
subject to Executive Order 13045 because it does not concern an
environmental health risk or safety risk. Since this action does not
concern human health, the EPA's Policy on Children's Health also does
not apply.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that this action does not concern human health or
environmental conditions and therefore cannot be evaluated with respect
to potentially disproportionate and adverse effects on communities with
environmental justice concerns. This action does not change the
underlying standards that have an impact on human health and the
environment.
Michael S. Regan,
Administrator.
[FR Doc. 2024-13188 Filed 6-21-24; 8:45 am]
BILLING CODE 6560-50-P
