Revisions to the Federal Implementation Plan for the Billings/Laurel, Montana, Sulfur Dioxide Area, 82948-82953 [2024-23568]

Download as PDF 82948 Proposed Rules Federal Register Vol. 89, No. 199 Tuesday, October 15, 2024 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. POSTAL SERVICE 39 CFR Part 111 Dual Shipping Labels Discontinued Postal ServiceTM. ACTION: Proposed rule. AGENCY: The Postal Service is proposing to amend Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM®) to discontinue the use of dual shipping labels. SUMMARY: Submit comments on or before November 14, 2024. ADDRESSES: Mail or deliver written comments to the manager, Product Classification, U.S. Postal Service, 475 L’Enfant Plaza SW, Room 4446, Washington, DC 20260–5015. If sending comments by email, include the name and address of the commenter and send to PCFederalRegister@usps.gov, with a subject line of ‘‘Dual Shipping Labels’’. Faxed comments are not accepted. You may inspect and photocopy all written comments, by appointment only, at USPS® Headquarters Library, 475 L’Enfant Plaza SW, 11th Floor North, Washington, DC 20260. These records are available for review on Monday through Friday, 9 a.m.–4 p.m., by calling 202–268–2906. FOR FURTHER INFORMATION CONTACT: Catherine Knox at (202) 268–5636 or Garry Rodriguez at (202) 268–7281. SUPPLEMENTARY INFORMATION: All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure. khammond on DSKJM1Z7X2PROD with PROPOSALS DATES: Background On January 21, 2018, the Postal Service revised the DMM to provide information regarding the use of dual shipping labels based on feedback that some of our industry shipping partners had adopted the practice of using shipping labels which included both the VerDate Sep<11>2014 16:03 Oct 11, 2024 Jkt 265001 USPS® and their own address formats to address their items. 602 Addressing * * Proposal The Postal Service has reviewed the practice of using dual shipping labels and has found that this practice no longer serves the interests of the Postal Service. As a result, the Postal Service is proposing to discontinue the use of dual shipping labels. Items bearing dual shipping labels should not be accepted and may be returned to the sender. The Postal Service is proposing to implement this change effective January 1, 2025. Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comment on the proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes. 10.0 List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, the Postal Service proposes the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations (see 39 CFR 111.1): PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: ■ Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 401–404, 414, 416, 3001–3018, 3201–3220, 3401–3406, 3621, 3622, 3626, 3629, 3631– 3633, 3641, 3681–3685, and 5001. 2. Revise the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) as follows: ■ Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) * * * * * 600 Basic Standards for All Mailing Services * PO 00000 * * Frm 00001 * Fmt 4702 * Sfmt 4702 * * * Dual Shipping Labels [Revise the text of 10.0 to read as follows:] Mailers must not use dual shipping labels. Items bearing dual shipping labels should not be accepted and may be returned to the sender. * * * * * Christopher Doyle, Attorney, Ethics and Legal Compliance. [FR Doc. 2024–23823 Filed 10–11–24; 8:45 am] BILLING CODE P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R08–OAR–2023–0587; FRL–11571– 01–R8] Revisions to the Federal Implementation Plan for the Billings/ Laurel, Montana, Sulfur Dioxide Area Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to revise a Federal Implementation Plan (FIP) applicable to sulfur dioxide (SO2) emissions from several sources located in Billings and Laurel, Montana. Specifically, the EPA is proposing to revise a portion of the FIP promulgated by the EPA in 2008 (2008 Billings/ Laurel SO2 FIP) by removing a provision which contained an affirmative defense for exceedances of flare emission limits during malfunctions, startups, and shutdowns. The EPA is proposing this action pursuant to the Clean Air Act (CAA). SUMMARY: Written comments must be received on or before December 16, 2024. Public hearing: If anyone contacts us requesting a public hearing on or before October 30, 2024, we will hold a hearing. Additional information about the hearing, if requested, will be published in a subsequent Federal Register document. Contact Adam Clark at clark.adam@epa.gov, to request a hearing or to determine if a hearing will be held. DATES: E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules Submit your comments, identified by Docket ID No. EPA–R08– OAR–2023–0587, to the Federal Rulemaking Portal: https:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from https:// www.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 the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/ commenting-epa-dockets. Docket: All documents in the docket are listed in the https:// www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically in https://www.regulations.gov. Please email or call the person listed in the FOR FURTHER INFORMATION CONTACT section if you need to make alternative arrangements for access to the docket. FOR FURTHER INFORMATION CONTACT: Adam Clark, Air and Radiation Division, EPA, Region 8, Mail code 8ARD–IO, 1595 Wynkoop Street, Denver, Colorado 80202–1129, telephone number: (303) 312–7104, email address: clark.adam@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document wherever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the EPA. khammond on DSKJM1Z7X2PROD with PROPOSALS ADDRESSES: III. The EPA’s Proposed Action IV. Environmental Justice Considerations V. Statutory and Executive Order Reviews I. What action is the EPA proposing? The EPA is proposing to revise the portion of the 2008 Billings/Laurel SO2 FIP found at 40 CFR 52.1392(i), titled ‘‘Affirmative defense provisions for exceedances of flare emission limits during malfunctions, startups, and shutdowns.’’ This includes proposed withdrawal of all of the subsections under 40 CFR 52.1392(i), including § 52.1392(i)(1) and subsections therein, and § 52.1392(i)(2) and (3). The rationale for this proposed action is described in the following sections. II. Background A. Billings/Laurel SO2 Area History Table of Contents On March 3, 1978 (43 FR 8962), the Laurel, Montana area was designated as nonattainment for the 1971 primary SO2 national ambient air quality standards (NAAQS). See 40 CFR 81.327. The nonattainment area consists of an area with a two-kilometer radius around the CHS Laurel Refinery. This designation was based on monitored and modeled violations of the NAAQS. The EPA reaffirmed this nonattainment designation on September 11, 1978 (43 FR 40412). The 1990 CAA Amendments, enacted November 15, 1990, again reaffirmed the nonattainment designation of Laurel with respect to the 1971 primary SO2 NAAQS. Since the Laurel nonattainment area had a fully approved CAA title I part D plan, the State was not required to submit a revised plan for the area under the 1990 Amendments (see sections 191 and 192 of the CAA). On March 3, 1978 (43 FR 8962), those areas in the State that were meeting the 1971 SO2 NAAQS were designated as ‘‘Better Than National Standards.’’ The Billings area was in the portion of the State that was designated as ‘‘Better Than National Standards.’’ The CAA requires States to submit to the EPA a plan, termed a State Implementation Plan (SIP), to assure that the NAAQS are attained and maintained. Air quality modeling completed in 1991 and 1993 for the Billings/Laurel area predicted that the SO2 NAAQS were not being attained, including outside of the existing nonattainment area and in Billings.1 As I. What action is the EPA proposing? II. Background A. Billings/Laurel SO2 Area History B. Billings/Laurel SO2 FIP C. Affirmative Defense Provision Policy History 1 As stated in the proposed FIP, ‘‘Laurel is located within the Yellowstone Valley approximately 15 miles southwest of Billings. . . . Although Laurel and Billings are 15 miles apart, the industries in Billings have some impact on the air quality in Laurel and the industry in Laurel has some impact VerDate Sep<11>2014 16:03 Oct 11, 2024 Jkt 265001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 82949 a result, the EPA (pursuant to sections 110(a)(2)(H) and 110(k)(5) of the CAA) sent a letter to the Governor of Montana, dated March 4, 1993,2 finding the SIP was substantially inadequate to attain or maintain the NAAQS (known as a ‘‘SIP Call’’) and requested the State of Montana revise its previously approved SIP for the Billings/Laurel area. In the request letter, we declared that the SIP Call would become final agency action when we made a final determination regarding the State of Montana’s response to the SIP Call. In response, the State submitted revisions to the SIP on September 6, 1995, August 27, 1996, April 2, 1997, July 29, 1998, and May 4, 2000. We made a final determination regarding the SIP Call when we partially and limitedly approved and partially and limitedly disapproved the Billings/ Laurel SO2 SIP revisions submitted by the State in response to the request letter (67 FR 22168, 22173, May 2, 2002). On May 22, 2003 (68 FR 27908),3 we partially approved and partially disapproved provisions of the Billings/ Laurel SO2 SIP. Montana Sulfur and Chemical Company filed a petition for review challenging the EPA’s 2002 partial SIP disapproval. That petition was held in abeyance pending the EPA’s promulgation of a FIP to remedy the disapproved portions of the Billings/ Laurel SO2 SIP. B. Billings/Laurel SO2 FIP On April 21, 2008, the EPA promulgated a FIP applicable to several sources located in Billings and Laurel, Montana, hereon referred to as the ‘‘2008 Billings/Laurel SO2 FIP’’ (73 FR 21418). The EPA promulgated the 2008 Billings/Laurel SO2 FIP because of our previous partial and limited disapprovals of the Billings/Laurel SO2 SIP. The intended effect of this action was to assure attainment of the 1971 SO2 NAAQS in the Billings/Laurel, Montana area. The 2008 Billings/Laurel SO2 FIP did not replace the SIP entirely, but instead replaced elements of, or filled gaps in, the disapproved portion of the SIP. Montana Sulfur and Chemical Company filed a petition for review challenging the EPA’s 2008 FIP, at which point the previous litigation challenging the 2002 SIP disapproval was reactivated. The court ultimately issued a single ruling affirming the on the air quality in Billings.’’ 79 FR 39260–39261, July 12, 2006. 2 EPA published this letter in the Federal Register on August 4, 1993 (58 FR 41430). 3 See also June 2, 2003, correction document (68 FR 32799). E:\FR\FM\15OCP1.SGM 15OCP1 82950 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS EPA’s action on the SIP Call, 2002 SIP disapproval, and FIP.4 The 2008 Billings/Laurel SO2 FIP, which remains in place today, contains emission limits and compliance determining methods for four sources located in Billings and Laurel, Montana. Three of the sources are petroleum refineries: CHS Inc. Laurel Refinery, Phillips 66 Billings Refinery (including the Jupiter Sulfur facility), and ExxonMobil Billings Refinery (now the Par Montana Refinery). The fourth source is Montana Sulphur and Chemical Company, which provides sulfur recovery for the Par Montana Refinery. Among the major components of the 2008 Billings/Laurel SO2 FIP was the establishment of flare emission limits at all four sources (150 lbs SO2/ 3-hour period at all but the Jupiter Sulfur flare, 75 lbs SO2/3-hour period shared limit for the Jupiter Sulfur flare and the Jupiter Sulfur SRU/ATS stack) 5 and monitoring methods to determine compliance with those limits. To determine flare emissions, the 2008 Billings/Laurel SO2 FIP required concentration monitoring (which can consist of continuous monitoring, grab sampling, or integrated sampling) and continuous flow monitoring. The 2008 Billings/Laurel SO2 FIP also included an affirmative defense to civil penalties for violations of the flare limits that occur during startup, shutdown, and malfunction (SSM) periods. These affirmative defense provisions for the flare limits, which the EPA finalized into the 2008 Billings/Laurel SO2 FIP at 40 CFR 52.1392(i), are the portions of the 2008 Billings/Laurel SO2 FIP we are proposing to remove from the 2008 Billings/Laurel SO2 FIP with this action. Below, we provide further detail on the history of affirmative defense provisions and the rationale for our removal of these provisions in this proposed action. C. Affirmative Defense Provision Policy History On June 12, 2015, the EPA finalized ‘‘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,’’ hereafter referred to as the ‘‘2015 SSM SIP Action’’ (80 FR 33839). Prior to the 2015 SSM SIP Action, which is discussed 4 See Montana Sulphur and Chemical Co. v. U.S. EPA, 666 F.3d 1174, (9th Cir. 2012). 5 SRU stands for sulfur recovery unit, and ATS stands for Ammonium Thiosulfate. VerDate Sep<11>2014 16:03 Oct 11, 2024 Jkt 265001 later in this section, the Agency had a longstanding interpretation of the CAA with respect to the treatment of excess emissions during periods of SSM in SIPs. This statutory interpretation had been expressed, reiterated, and elaborated upon in a series of guidance documents issued in 1982, 1983, and 1999. In the 1982 SSM Guidance, the EPA recommended the exercise of enforcement discretion to address periods of excess emissions occurring during SSM events.6 Subsequently, in the 1983 SSM Guidance, the EPA expanded on this approach by recommending that a State could elect to adopt SIP provisions providing parameters for the exercise of enforcement discretion by the State’s personnel.7 In our 1999 SSM Guidance, the EPA interpreted that States could elect to create ‘‘affirmative defense’’ provisions applicable to SSM events in their SIPs.8 Also in the 1999 Guidance, the EPA established parameters that should be included as part of such an affirmative defense in order to ensure that it would be available only in certain narrow circumstances.9 In the 2008 Billings/Laurel SO2 FIP, the EPA explained that we were following our national policy with respect to SSM periods as expressed in the 1999 SSM Guidance by including an affirmative defense in our 2008 Billings/Laurel SO2 FIP. 73 FR 21434, April 21, 2008. Specifically, we stated, ‘‘[t]o provide relief to the sources for truly unavoidable violations, while still maintaining appropriate incentives for compliance, we are providing an affirmative defense to penalties for violations of flare limits during malfunctions, startups, and shutdowns. The elements of the defense, which a source would have to prove in court or before an administrative judge, are enumerated in our 2008 final rule and are consistent with the elements 6 Memorandum to Regional Administrators, Region I–X; From: Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation; Subject: Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions. September 28, 1982. 7 Memorandum to Regional Administrators, Regions I–X; From: Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation; Subject: Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions. February 15, 1983. 8 Memorandum to Regional Administrators, Regions I–X; From: Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Bob Perciasepe, Assistant Administrator for Air and Radiation; Subject: Policy on Excess Emissions During Malfunctions, Startup, and Shutdown. September 20, 1999. 9 Id. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 described in our 1999 excess emissions memorandum.’’ Id. at 73 FR 21432. On February 22, 2013, the EPA proposed to take action on a petition for rulemaking that the Sierra Club filed with the EPA Administrator on June 30, 2011 (78 FR 12460). In that action, the EPA proposed to grant the Petitioner’s claim with respect to affirmative defenses applicable to planned events such as startup and shutdown. This was a change from the EPA’s interpretation of the CAA in the 1999 SSM Guidance, in which the EPA had interpreted that States could elect to create such affirmative defense provisions for startup and shutdown events, so long as the provisions were narrowly drawn and consistent with the established criteria to assure that they meet CAA requirements. The EPA’s evaluation of the petition and the statutory basis for affirmative defense provisions initiated a review of the appropriateness of affirmative defense provisions applicable during startup and shutdown, which are ordinary modes of operation that are generally predictable and within the control of the source. As explained in more detail in the February 22, 2013 proposal document, the EPA’s evaluation of the Sierra Club Petition in light of then-recent case law 10 caused the EPA to alter its view on the appropriateness of affirmative defenses applicable to planned events such as startup and shutdown. Specifically, the EPA stated that ‘‘because these events are modes of normal operation, the EPA believes that sources should be expected to comply with applicable emission limitations during such events.’’ (Id. at 12480) The EPA distinguished between affirmative defense provisions for startup and shutdown and those for malfunctions, stating ‘‘the distinction that makes affirmative defenses appropriate for malfunctions is that by definition those events are unforeseen and could not have been avoided by the owner or operator of the source, and the owner or operator of the source will have taken steps to prevent the violation and to minimize the effects of the violation after it occurs.’’ Id. Subsequent to the EPA’s issuance of the February 22, 2013 proposal, on April 18, 2014, the U.S. Court of Appeals for the District of Columbia Circuit ruled that CAA sections 113 and 304 preclude the EPA the authority to create affirmative defense provisions in 10 Court decisions confirmed that this requirement for continuous compliance prohibits exemptions for excess emissions during SSM events. See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th Cir. 2012). E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS the Agency’s own regulations imposing emission limits on sources, because such provisions purport to alter the jurisdiction of federal courts to assess liability and impose penalties for violations of those limits in private civil enforcement cases.11 In light of this decision, on September 17, 2014, the EPA issued a supplemental proposed rulemaking which outlined our updated policy that affirmative defense SIP provisions, even if they are narrowly tailored and applicable only to malfunctions, are not consistent with CAA requirements. Accordingly, the EPA proposed to grant the portion of Sierra Club’s petition with regard to affirmative defenses in the case of malfunctions that it had previously proposed to deny.12 In that supplemental proposal, the EPA stated that the reasoning of the court in the NRDC decision indicates that the States, like the EPA, have no authority in SIP provisions to alter the statutory jurisdiction of federal courts under CAA section 113 and 304 to assess penalties for violations of CAA requirements through affirmative defense provisions. We additionally noted that if States lack authority under the CAA to alter the jurisdiction of the federal courts through affirmative defense provisions in SIPs, then the EPA also lacks authority to approve any such provision in a SIP.13 On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA finalized the 2015 SSM SIP Action. The 2015 SSM SIP Action clarified, restated, and updated the EPA’s interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 States were substantially inadequate to meet CAA requirements and issued a SIP call to those States to submit SIP revisions to address the inadequacies.14 The EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs, including affirmative defense 11 See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). 12 See ‘‘State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction; Supplemental Proposal To Address Affirmative Defense Provisions in States Included in the Petition for Rulemaking and in Additional States.’’ 79 FR 55920, September 17, 2014. 13 Id. at 79 FR 55929. 14 The EPA established an 18-month deadline by which the affected States had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP call by November 22, 2016. VerDate Sep<11>2014 16:03 Oct 11, 2024 Jkt 265001 provisions, could be viewed as consistent with CAA requirements.15 However, on September 30, 2021, the EPA’s Deputy Administrator withdrew the 2020 Memorandum and announced the EPA’s return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum).16 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. On March 1, 2024, the D.C. Circuit Court of Appeals issued a decision in Environ. Comm. Fl. Elec. Power v. EPA, No. 15–1239. The case is a consolidated set of petitions for review of the 2015 SSM SIP Action. The Court granted the petitions in part, vacating the SIP call with respect to SIP provisions that the EPA identified as automatic exemptions, director’s discretion provisions, and affirmative defenses that are functionally exemptions; and denied the petitions in part as to other provisions that the EPA identified as ambiguous provisions, overbroad enforcement discretion provisions, or affirmative defense provisions that would preclude or limit a court from imposing relief in the case of violations, which the Court also refers to as ‘‘specific relief.’’ This is juxtaposed against the Court’s granting of the petition as to affirmative defenses that are functionally exemptions because they ‘‘create an exemption from the normal emission rule.’’ 17 The EPA finds that the affirmative defense provision in the 2008 Billings/Laurel SO2 FIP to be ‘‘specific relief’’ as interpreted by the Court, as the provision specifically states that an owner or operator ‘‘may assert an affirmative defense to a claim for civil penalties for exceedances of such limits during periods of malfunction, startup, or shutdown,’’ and ‘‘to establish the affirmative defense and to be relieved of a civil penalty in any action to enforce such a limit, the owner 15 October 9, 2020 memorandum ‘‘Inclusion of Provisions Governing Periods of Startup, Shutdown, and Malfunctions in State Implementation Plans,’’ from Andrew R. Wheeler, Administrator. The 2020 Memorandum stated that it ‘‘did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.’’ Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued in 2015. 16 September 30, 2021, memorandum ‘‘Withdrawal of the October 9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions in State Implementation Plans and Implementation of the Prior Policy,’’ from Janet McCabe, Deputy Administrator. 17 See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115 (D.C. Cir. 2024). PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 82951 or operator of the facility must meet the notification requirements of paragraph (i)(2) of this section in a timely manner and prove by a preponderance of evidence . . .’’ 18 The EPA has assessed the impact of the decision with respect to the removal of the specific affirmative defense provisions at issue in the Billings/Laurel SO2 FIP. We have concluded that the previously stated reasons for the proposed removal of these provisions, as articulated in the 2015 SSM SIP Action and 2021 Memorandum, are consistent with the recent D.C. Circuit decision. The Court upheld the EPA’s 2015 SSM SIP Action with regard to affirmative defenses against specific relief, finding that because CAA 304(a) and 113(b) authorize citizens and the EPA to seek injunctive relief and monetary penalties against sources that violate a SIP’s emission rules, such an affirmative defense would ‘‘block that aspect of the Act’s enforcement regime.’’ 19 To maintain consistency with our SSM policy regarding affirmative defenses against specific relief, and with the CAA’s prohibition against such affirmative defenses, we are proposing to find that the affirmative defense provisions currently promulgated in the 2008 Billings/Laurel SO2 FIP at 40 CFR 52.1392(i) are substantially inadequate to meet CAA requirements. Therefore, we are proposing to revise the 2008 Billings/Laurel SO2 FIP by removing these provisions. III. The EPA’s Proposed Action The EPA is proposing to revise the 2008 Billings/Laurel SO2 FIP by removing § 52.1392(i) and all of the provisions therein, including paragraphs § 52.1392 (i)(1)–(3). The EPA is proposing this action in line with our policy regarding affirmative defense provisions against specific relief, as described in our 2015 SSM SIP Action and affirmed by the D.C. Circuit. IV. Environmental Justice Considerations 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, and enforcement of environmental laws, regulations, and policies.’’ 20 The EPA further defines the term ‘‘fair treatment’’ to mean that ‘‘no group of people should bear a disproportionate burden of 18 See 40 CFR 52.1392(i)(1). Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 114–115 (D.C. Cir. 2024). 20 See https://www.epa.gov/environmentaljustice/ learn-about-environmental-justice. 19 See E:\FR\FM\15OCP1.SGM 15OCP1 82952 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.’’ 21 Recognizing the importance of these considerations to local communities, the EPA conducted an environmental justice screening analysis around the location of the facilities associated with this action to evaluate environmental and demographic indicators for the areas impacted by this proposed action. However, the EPA is providing the information associated with this analysis for informational purposes only. The information provided herein is not a basis of this proposed action. The EPA conducted the screening analyses using EJScreen, an EJ mapping and screening tool that provides the EPA with a nationally consistent dataset and approach for combining various environmental and demographic indicators.22 The EJScreen tool presents these indicators at a census block group (CBG) level or a larger user-specified ‘‘buffer’’ area that covers multiple CBGs.23 An individual CBG is a cluster of contiguous blocks within the same census tract and generally contains between 600 and 3,000 people. EJScreen is not a tool for performing in-depth risk analysis, but is instead a screening tool that provides an initial representation of indicators related to EJ and is subject to uncertainty in some underlying data (e.g., some environmental indicators are based on monitoring data which are not uniformly available; others are based on self-reported data).24 For informational purposes, we have summarized EJScreen data within larger ‘‘buffer’’ areas covering multiple block groups and representing the average resident within the buffer areas surrounding the facilities. EJScreen environmental indicators help screen for locations where residents may experience a higher overall pollution burden than would be expected for a block group with the same total population in the U.S. These indicators of overall pollution burden include estimates of 21 Id. khammond on DSKJM1Z7X2PROD with PROPOSALS 22 The EJSCREEN tool is available at https:// www.epa.gov/ejscreen. 23 See https://www.census.gov/programs-surveys/ geography/about/glossary.html. 24 In addition, EJSCREEN relies on the five-year block group estimates from the U.S. Census American Community Survey. The advantage of using five-year over single-year estimates is increased statistical reliability of the data (i.e., lower sampling error), particularly for small geographic areas and population groups. For more information, see https://www.census.gov/content/ dam/Census/library/publications/2020/acs/acs_ general_handbook_2020.pdf. VerDate Sep<11>2014 16:03 Oct 11, 2024 Jkt 265001 ambient particulate matter (PM2.5) and ozone concentration, a score for traffic proximity and volume, percentage of pre-1960 housing units (lead paint indicator), and scores for proximity to Superfund sites, risk management plan (RMP) sites, and hazardous waste facilities.25 EJScreen also provides information on demographic indicators, including percent of low-income, communities of color, linguistic isolation, and less than high school education. The EPA prepared EJScreen reports covering buffer areas of approximately five kilometers around the four facilities subject to the 2008 Billings/Laurel SO2 FIP. From those reports, no facilities showed EJ indices greater than the 80th national percentiles.26 The full, detailed EJScreen reports are provided in the docket for this rulemaking. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review This action is exempt from review under Executive Order 12866, as amended by Executive Order 14094, as it is not a rule of general applicability. This action specifically applies to 4 facilities in the State of Montana. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA), because it revises the reporting requirements for 4 facilities in the State of Montana. C. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities as no small entities are subject to the requirements of this rule. 25 For additional information on environmental indicators and proximity scores in EJSCREEN, see ‘‘EJSCREEN Environmental Justice Mapping and Screening Tool: EJSCREEN Technical Documentation,’’ chapter 3 and appendix C (September 2019) at https://www.epa.gov/sites/ default/files/2021-04/documents/ejscreen_ technical_document.pdf. 26 For a place at the 80th percentile nationwide, that means 20 percent of the U.S. population has a higher value. The EPA identified the 80th percentile filter as an initial starting point for interpreting EJScreen results. The use of an initial filter promotes consistency for the EPA’s programs and regions when interpreting screening results. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 D. Unfunded Mandates Reform Act (UMRA) This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. This 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, because this proposed rule would not apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that the Tribe has jurisdiction, and it will not impose substantial direct costs on Tribal governments or preempt Tribal law. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997). The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of ‘‘covered regulatory action’’ in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely removes a provision from the 2008 Billings/Laurel SO2 FIP that is inconsistent with the requirements of the CAA. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules I. National Technology Transfer and Advancement Act PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 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 it is not practicable to assess whether the human health or environmental conditions that exist prior to this action result in disproportionate and adverse effects on communities with environmental justice concerns. While the EPA has identified the sources that would be impacted by the finalization of this proposed action, the EPA cannot quantify the baseline conditions and impacts the affirmative defense provisions have had on these sources, nor can we project potential emissions impacts from these sources as a result of this action. However, the EPA finds that this proposed action is expected to have a neutral to positive impact on the air quality of the affected area. The EPA performed a screening analysis using the EJScreen tool 27 to evaluate environmental and demographic indicators for the areas impacted by this proposed action. The results of this assessment are in the docket for this action. The EPA is providing this information for public information purposes, and not as a basis of our proposed action. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. khammond on DSKJM1Z7X2PROD with PROPOSALS Michael S. Regan, Administrator. For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 52 as follows: 27 EJSCREEN is an environmental justice mapping and screening tool that provides the EPA with a nationally consistent dataset and approach for combining environmental and demographic indicators; available at https://www.epa.gov/ ejscreen/what-ejscreen. VerDate Sep<11>2014 16:03 Oct 11, 2024 Jkt 265001 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart BB—Montana § 52.1392 [Amended] 2. In § 52.1392, remove and reserve paragraph (i). ■ [FR Doc. 2024–23568 Filed 10–11–24; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R08–OAR–2023–0473; FRL–12257– 01–R8] Air Plan Approval; Montana; Missoula, Montana Oxygenated Fuels Program Removal, Carbon Monoxide, Limited Maintenance Plan Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the Montana Department of Environmental Quality (MDEQ or ‘‘the State’’), on January 30, 2024, requesting to change the status of gasoline requirements (the ‘‘oxygenated fuels’’ or ‘‘oxyfuels’’ program’’) in the Missoula, Montana, Carbon Monoxide (CO) limited maintenance plan (LMP) area from an active control measure to a contingency measure. The SIP revision contains a non-interference demonstration under the Clean Air Act (CAA), which concludes that converting the oxygenated gasoline program from a control measure to a contingency measure in the Missoula CO LMP would not interfere with attainment or maintenance of the CO National Ambient Air Quality Standards (NAAQS). The EPA is proposing to approve Montana’s SIP submittal pursuant to CAA. DATES: Written comments must be received on or before November 14, 2024. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R08– OAR–2023–0473, to the Federal Rulemaking Portal: https:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from https:// SUMMARY: PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 82953 www.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 the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/ commenting-epa-dockets. Docket: All documents in the docket are listed in the https:// www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically in https://www.regulations.gov. Please email or call the person listed in the FOR FURTHER INFORMATION CONTACT section if you need to make alternative arrangements for access to the docket. FOR FURTHER INFORMATION CONTACT: Joseph Stein, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD–IO, 1595 Wynkoop Street, Denver, Colorado 80202–1129, telephone number: (303) 312–7078, email address: stein.joseph@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document wherever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the EPA. I. Background The EPA is proposing to approve a SIP revision submitted by Montana on January 30, 2024, requesting to change the status of the oxyfuels program in the Missoula CO LMP from an active control measure to a contingency measure. To support the request, Montana’s January 30, 2024 SIP revision contains technical support materials to demonstrate that the removal of the rules as a control measure will not interfere with attainment or maintenance of the CO NAAQS or with E:\FR\FM\15OCP1.SGM 15OCP1

Agencies

[Federal Register Volume 89, Number 199 (Tuesday, October 15, 2024)]
[Proposed Rules]
[Pages 82948-82953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23568]


=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2023-0587; FRL-11571-01-R8]


Revisions to the Federal Implementation Plan for the Billings/
Laurel, Montana, Sulfur Dioxide Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
revise a Federal Implementation Plan (FIP) applicable to sulfur dioxide 
(SO2) emissions from several sources located in Billings and 
Laurel, Montana. Specifically, the EPA is proposing to revise a portion 
of the FIP promulgated by the EPA in 2008 (2008 Billings/Laurel 
SO2 FIP) by removing a provision which contained an 
affirmative defense for exceedances of flare emission limits during 
malfunctions, startups, and shutdowns. The EPA is proposing this action 
pursuant to the Clean Air Act (CAA).

DATES: Written comments must be received on or before December 16, 
2024. Public hearing: If anyone contacts us requesting a public hearing 
on or before October 30, 2024, we will hold a hearing. Additional 
information about the hearing, if requested, will be published in a 
subsequent Federal Register document. Contact Adam Clark at 
[email protected], to request a hearing or to determine if a hearing 
will be held.

[[Page 82949]]


ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2023-0587, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
https://www.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 the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically in 
https://www.regulations.gov. Please email or call the person listed in 
the FOR FURTHER INFORMATION CONTACT section if you need to make 
alternative arrangements for access to the docket.

FOR FURTHER INFORMATION CONTACT: Adam Clark, Air and Radiation 
Division, EPA, Region 8, Mail code 8ARD-IO, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, telephone number: (303) 312-7104, email 
address: [email protected].

SUPPLEMENTARY INFORMATION:  Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. What action is the EPA proposing?
II. Background
    A. Billings/Laurel SO2 Area History
    B. Billings/Laurel SO2 FIP
    C. Affirmative Defense Provision Policy History
III. The EPA's Proposed Action
IV. Environmental Justice Considerations
V. Statutory and Executive Order Reviews

I. What action is the EPA proposing?

    The EPA is proposing to revise the portion of the 2008 Billings/
Laurel SO2 FIP found at 40 CFR 52.1392(i), titled 
``Affirmative defense provisions for exceedances of flare emission 
limits during malfunctions, startups, and shutdowns.'' This includes 
proposed withdrawal of all of the subsections under 40 CFR 52.1392(i), 
including Sec.  52.1392(i)(1) and subsections therein, and Sec.  
52.1392(i)(2) and (3). The rationale for this proposed action is 
described in the following sections.

II. Background

A. Billings/Laurel SO2 Area History

    On March 3, 1978 (43 FR 8962), the Laurel, Montana area was 
designated as nonattainment for the 1971 primary SO2 
national ambient air quality standards (NAAQS). See 40 CFR 81.327. The 
nonattainment area consists of an area with a two-kilometer radius 
around the CHS Laurel Refinery. This designation was based on monitored 
and modeled violations of the NAAQS. The EPA reaffirmed this 
nonattainment designation on September 11, 1978 (43 FR 40412). The 1990 
CAA Amendments, enacted November 15, 1990, again reaffirmed the 
nonattainment designation of Laurel with respect to the 1971 primary 
SO2 NAAQS. Since the Laurel nonattainment area had a fully 
approved CAA title I part D plan, the State was not required to submit 
a revised plan for the area under the 1990 Amendments (see sections 191 
and 192 of the CAA).
    On March 3, 1978 (43 FR 8962), those areas in the State that were 
meeting the 1971 SO2 NAAQS were designated as ``Better Than 
National Standards.'' The Billings area was in the portion of the State 
that was designated as ``Better Than National Standards.''
    The CAA requires States to submit to the EPA a plan, termed a State 
Implementation Plan (SIP), to assure that the NAAQS are attained and 
maintained. Air quality modeling completed in 1991 and 1993 for the 
Billings/Laurel area predicted that the SO2 NAAQS were not 
being attained, including outside of the existing nonattainment area 
and in Billings.\1\ As a result, the EPA (pursuant to sections 
110(a)(2)(H) and 110(k)(5) of the CAA) sent a letter to the Governor of 
Montana, dated March 4, 1993,\2\ finding the SIP was substantially 
inadequate to attain or maintain the NAAQS (known as a ``SIP Call'') 
and requested the State of Montana revise its previously approved SIP 
for the Billings/Laurel area. In the request letter, we declared that 
the SIP Call would become final agency action when we made a final 
determination regarding the State of Montana's response to the SIP 
Call. In response, the State submitted revisions to the SIP on 
September 6, 1995, August 27, 1996, April 2, 1997, July 29, 1998, and 
May 4, 2000. We made a final determination regarding the SIP Call when 
we partially and limitedly approved and partially and limitedly 
disapproved the Billings/Laurel SO2 SIP revisions submitted 
by the State in response to the request letter (67 FR 22168, 22173, May 
2, 2002). On May 22, 2003 (68 FR 27908),\3\ we partially approved and 
partially disapproved provisions of the Billings/Laurel SO2 
SIP. Montana Sulfur and Chemical Company filed a petition for review 
challenging the EPA's 2002 partial SIP disapproval. That petition was 
held in abeyance pending the EPA's promulgation of a FIP to remedy the 
disapproved portions of the Billings/Laurel SO2 SIP.
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    \1\ As stated in the proposed FIP, ``Laurel is located within 
the Yellowstone Valley approximately 15 miles southwest of Billings. 
. . . Although Laurel and Billings are 15 miles apart, the 
industries in Billings have some impact on the air quality in Laurel 
and the industry in Laurel has some impact on the air quality in 
Billings.'' 79 FR 39260-39261, July 12, 2006.
    \2\ EPA published this letter in the Federal Register on August 
4, 1993 (58 FR 41430).
    \3\ See also June 2, 2003, correction document (68 FR 32799).
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B. Billings/Laurel SO2 FIP

    On April 21, 2008, the EPA promulgated a FIP applicable to several 
sources located in Billings and Laurel, Montana, hereon referred to as 
the ``2008 Billings/Laurel SO2 FIP'' (73 FR 21418). The EPA 
promulgated the 2008 Billings/Laurel SO2 FIP because of our 
previous partial and limited disapprovals of the Billings/Laurel 
SO2 SIP. The intended effect of this action was to assure 
attainment of the 1971 SO2 NAAQS in the Billings/Laurel, 
Montana area. The 2008 Billings/Laurel SO2 FIP did not 
replace the SIP entirely, but instead replaced elements of, or filled 
gaps in, the disapproved portion of the SIP. Montana Sulfur and 
Chemical Company filed a petition for review challenging the EPA's 2008 
FIP, at which point the previous litigation challenging the 2002 SIP 
disapproval was reactivated. The court ultimately issued a single 
ruling affirming the

[[Page 82950]]

EPA's action on the SIP Call, 2002 SIP disapproval, and FIP.\4\
---------------------------------------------------------------------------

    \4\ See Montana Sulphur and Chemical Co. v. U.S. EPA, 666 F.3d 
1174, (9th Cir. 2012).
---------------------------------------------------------------------------

    The 2008 Billings/Laurel SO2 FIP, which remains in place 
today, contains emission limits and compliance determining methods for 
four sources located in Billings and Laurel, Montana. Three of the 
sources are petroleum refineries: CHS Inc. Laurel Refinery, Phillips 66 
Billings Refinery (including the Jupiter Sulfur facility), and 
ExxonMobil Billings Refinery (now the Par Montana Refinery). The fourth 
source is Montana Sulphur and Chemical Company, which provides sulfur 
recovery for the Par Montana Refinery. Among the major components of 
the 2008 Billings/Laurel SO2 FIP was the establishment of 
flare emission limits at all four sources (150 lbs SO2/3-
hour period at all but the Jupiter Sulfur flare, 75 lbs SO2/
3-hour period shared limit for the Jupiter Sulfur flare and the Jupiter 
Sulfur SRU/ATS stack) \5\ and monitoring methods to determine 
compliance with those limits. To determine flare emissions, the 2008 
Billings/Laurel SO2 FIP required concentration monitoring 
(which can consist of continuous monitoring, grab sampling, or 
integrated sampling) and continuous flow monitoring. The 2008 Billings/
Laurel SO2 FIP also included an affirmative defense to civil 
penalties for violations of the flare limits that occur during startup, 
shutdown, and malfunction (SSM) periods.
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    \5\ SRU stands for sulfur recovery unit, and ATS stands for 
Ammonium Thiosulfate.
---------------------------------------------------------------------------

    These affirmative defense provisions for the flare limits, which 
the EPA finalized into the 2008 Billings/Laurel SO2 FIP at 
40 CFR 52.1392(i), are the portions of the 2008 Billings/Laurel 
SO2 FIP we are proposing to remove from the 2008 Billings/
Laurel SO2 FIP with this action. Below, we provide further 
detail on the history of affirmative defense provisions and the 
rationale for our removal of these provisions in this proposed action.

C. Affirmative Defense Provision Policy History

    On June 12, 2015, the EPA finalized ``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,'' hereafter referred to 
as the ``2015 SSM SIP Action'' (80 FR 33839). Prior to the 2015 SSM SIP 
Action, which is discussed later in this section, the Agency had a 
longstanding interpretation of the CAA with respect to the treatment of 
excess emissions during periods of SSM in SIPs. This statutory 
interpretation had been expressed, reiterated, and elaborated upon in a 
series of guidance documents issued in 1982, 1983, and 1999.
    In the 1982 SSM Guidance, the EPA recommended the exercise of 
enforcement discretion to address periods of excess emissions occurring 
during SSM events.\6\ Subsequently, in the 1983 SSM Guidance, the EPA 
expanded on this approach by recommending that a State could elect to 
adopt SIP provisions providing parameters for the exercise of 
enforcement discretion by the State's personnel.\7\ In our 1999 SSM 
Guidance, the EPA interpreted that States could elect to create 
``affirmative defense'' provisions applicable to SSM events in their 
SIPs.\8\ Also in the 1999 Guidance, the EPA established parameters that 
should be included as part of such an affirmative defense in order to 
ensure that it would be available only in certain narrow 
circumstances.\9\ In the 2008 Billings/Laurel SO2 FIP, the 
EPA explained that we were following our national policy with respect 
to SSM periods as expressed in the 1999 SSM Guidance by including an 
affirmative defense in our 2008 Billings/Laurel SO2 FIP. 73 
FR 21434, April 21, 2008. Specifically, we stated, ``[t]o provide 
relief to the sources for truly unavoidable violations, while still 
maintaining appropriate incentives for compliance, we are providing an 
affirmative defense to penalties for violations of flare limits during 
malfunctions, startups, and shutdowns. The elements of the defense, 
which a source would have to prove in court or before an administrative 
judge, are enumerated in our 2008 final rule and are consistent with 
the elements described in our 1999 excess emissions memorandum.'' Id. 
at 73 FR 21432.
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    \6\ Memorandum to Regional Administrators, Region I-X; From: 
Kathleen M. Bennett, Assistant Administrator for Air, Noise and 
Radiation; Subject: Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions. September 28, 1982.
    \7\ Memorandum to Regional Administrators, Regions I-X; From: 
Kathleen M. Bennett, Assistant Administrator for Air, Noise and 
Radiation; Subject: Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions. February 15, 1983.
    \8\ Memorandum to Regional Administrators, Regions I-X; From: 
Steven A. Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Bob Perciasepe, Assistant Administrator 
for Air and Radiation; Subject: Policy on Excess Emissions During 
Malfunctions, Startup, and Shutdown. September 20, 1999.
    \9\ Id.
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    On February 22, 2013, the EPA proposed to take action on a petition 
for rulemaking that the Sierra Club filed with the EPA Administrator on 
June 30, 2011 (78 FR 12460). In that action, the EPA proposed to grant 
the Petitioner's claim with respect to affirmative defenses applicable 
to planned events such as startup and shutdown. This was a change from 
the EPA's interpretation of the CAA in the 1999 SSM Guidance, in which 
the EPA had interpreted that States could elect to create such 
affirmative defense provisions for startup and shutdown events, so long 
as the provisions were narrowly drawn and consistent with the 
established criteria to assure that they meet CAA requirements. The 
EPA's evaluation of the petition and the statutory basis for 
affirmative defense provisions initiated a review of the 
appropriateness of affirmative defense provisions applicable during 
startup and shutdown, which are ordinary modes of operation that are 
generally predictable and within the control of the source. As 
explained in more detail in the February 22, 2013 proposal document, 
the EPA's evaluation of the Sierra Club Petition in light of then-
recent case law \10\ caused the EPA to alter its view on the 
appropriateness of affirmative defenses applicable to planned events 
such as startup and shutdown. Specifically, the EPA stated that 
``because these events are modes of normal operation, the EPA believes 
that sources should be expected to comply with applicable emission 
limitations during such events.'' (Id. at 12480)
---------------------------------------------------------------------------

    \10\ Court decisions confirmed that this requirement for 
continuous compliance prohibits exemptions for excess emissions 
during SSM events. See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 
1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 
(10th Cir. 2012).
---------------------------------------------------------------------------

    The EPA distinguished between affirmative defense provisions for 
startup and shutdown and those for malfunctions, stating ``the 
distinction that makes affirmative defenses appropriate for 
malfunctions is that by definition those events are unforeseen and 
could not have been avoided by the owner or operator of the source, and 
the owner or operator of the source will have taken steps to prevent 
the violation and to minimize the effects of the violation after it 
occurs.'' Id.
    Subsequent to the EPA's issuance of the February 22, 2013 proposal, 
on April 18, 2014, the U.S. Court of Appeals for the District of 
Columbia Circuit ruled that CAA sections 113 and 304 preclude the EPA 
the authority to create affirmative defense provisions in

[[Page 82951]]

the Agency's own regulations imposing emission limits on sources, 
because such provisions purport to alter the jurisdiction of federal 
courts to assess liability and impose penalties for violations of those 
limits in private civil enforcement cases.\11\ In light of this 
decision, on September 17, 2014, the EPA issued a supplemental proposed 
rulemaking which outlined our updated policy that affirmative defense 
SIP provisions, even if they are narrowly tailored and applicable only 
to malfunctions, are not consistent with CAA requirements. Accordingly, 
the EPA proposed to grant the portion of Sierra Club's petition with 
regard to affirmative defenses in the case of malfunctions that it had 
previously proposed to deny.\12\ In that supplemental proposal, the EPA 
stated that the reasoning of the court in the NRDC decision indicates 
that the States, like the EPA, have no authority in SIP provisions to 
alter the statutory jurisdiction of federal courts under CAA section 
113 and 304 to assess penalties for violations of CAA requirements 
through affirmative defense provisions. We additionally noted that if 
States lack authority under the CAA to alter the jurisdiction of the 
federal courts through affirmative defense provisions in SIPs, then the 
EPA also lacks authority to approve any such provision in a SIP.\13\
---------------------------------------------------------------------------

    \11\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
    \12\ See ``State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown and Malfunction; Supplemental Proposal To Address 
Affirmative Defense Provisions in States Included in the Petition 
for Rulemaking and in Additional States.'' 79 FR 55920, September 
17, 2014.
    \13\ Id. at 79 FR 55929.
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    On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA 
finalized the 2015 SSM SIP Action. The 2015 SSM SIP Action clarified, 
restated, and updated the EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 States were substantially inadequate to meet CAA requirements and 
issued a SIP call to those States to submit SIP revisions to address 
the inadequacies.\14\
---------------------------------------------------------------------------

    \14\ The EPA established an 18-month deadline by which the 
affected States had to submit such SIP revisions. States were 
required to submit corrective revisions to their SIPs in response to 
the SIP call by November 22, 2016.
---------------------------------------------------------------------------

    The EPA issued a Memorandum in October 2020 (2020 Memorandum), 
which stated that certain provisions governing SSM periods in SIPs, 
including affirmative defense provisions, could be viewed as consistent 
with CAA requirements.\15\ However, on September 30, 2021, the EPA's 
Deputy Administrator withdrew the 2020 Memorandum and announced the 
EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 
Memorandum).\16\ As articulated in the 2021 Memorandum, SIP provisions 
that contain exemptions or affirmative defense provisions are not 
consistent with CAA requirements and, therefore, generally are not 
approvable if contained in a SIP submission.
---------------------------------------------------------------------------

    \15\ October 9, 2020 memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator. The 
2020 Memorandum stated that it ``did not alter in any way the 
determinations made in the 2015 SSM SIP Action that identified 
specific state SIP provisions that were substantially inadequate to 
meet the requirements of the Act.'' Accordingly, the 2020 Memorandum 
had no direct impact on the SIP call issued in 2015.
    \16\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
---------------------------------------------------------------------------

    On March 1, 2024, the D.C. Circuit Court of Appeals issued a 
decision in Environ. Comm. Fl. Elec. Power v. EPA, No. 15-1239. The 
case is a consolidated set of petitions for review of the 2015 SSM SIP 
Action. The Court granted the petitions in part, vacating the SIP call 
with respect to SIP provisions that the EPA identified as automatic 
exemptions, director's discretion provisions, and affirmative defenses 
that are functionally exemptions; and denied the petitions in part as 
to other provisions that the EPA identified as ambiguous provisions, 
overbroad enforcement discretion provisions, or affirmative defense 
provisions that would preclude or limit a court from imposing relief in 
the case of violations, which the Court also refers to as ``specific 
relief.'' This is juxtaposed against the Court's granting of the 
petition as to affirmative defenses that are functionally exemptions 
because they ``create an exemption from the normal emission rule.'' 
\17\ The EPA finds that the affirmative defense provision in the 2008 
Billings/Laurel SO2 FIP to be ``specific relief'' as 
interpreted by the Court, as the provision specifically states that an 
owner or operator ``may assert an affirmative defense to a claim for 
civil penalties for exceedances of such limits during periods of 
malfunction, startup, or shutdown,'' and ``to establish the affirmative 
defense and to be relieved of a civil penalty in any action to enforce 
such a limit, the owner or operator of the facility must meet the 
notification requirements of paragraph (i)(2) of this section in a 
timely manner and prove by a preponderance of evidence . . .'' \18\ The 
EPA has assessed the impact of the decision with respect to the removal 
of the specific affirmative defense provisions at issue in the 
Billings/Laurel SO2 FIP. We have concluded that the 
previously stated reasons for the proposed removal of these provisions, 
as articulated in the 2015 SSM SIP Action and 2021 Memorandum, are 
consistent with the recent D.C. Circuit decision. The Court upheld the 
EPA's 2015 SSM SIP Action with regard to affirmative defenses against 
specific relief, finding that because CAA 304(a) and 113(b) authorize 
citizens and the EPA to seek injunctive relief and monetary penalties 
against sources that violate a SIP's emission rules, such an 
affirmative defense would ``block that aspect of the Act's enforcement 
regime.'' \19\
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    \17\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115 
(D.C. Cir. 2024).
    \18\ See 40 CFR 52.1392(i)(1).
    \19\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 
114-115 (D.C. Cir. 2024).
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    To maintain consistency with our SSM policy regarding affirmative 
defenses against specific relief, and with the CAA's prohibition 
against such affirmative defenses, we are proposing to find that the 
affirmative defense provisions currently promulgated in the 2008 
Billings/Laurel SO2 FIP at 40 CFR 52.1392(i) are 
substantially inadequate to meet CAA requirements. Therefore, we are 
proposing to revise the 2008 Billings/Laurel SO2 FIP by 
removing these provisions.

III. The EPA's Proposed Action

    The EPA is proposing to revise the 2008 Billings/Laurel 
SO2 FIP by removing Sec.  52.1392(i) and all of the 
provisions therein, including paragraphs Sec.  52.1392 (i)(1)-(3). The 
EPA is proposing this action in line with our policy regarding 
affirmative defense provisions against specific relief, as described in 
our 2015 SSM SIP Action and affirmed by the D.C. Circuit.

IV. Environmental Justice Considerations

    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, and enforcement of environmental laws, regulations, and 
policies.'' \20\ The EPA further defines the term ``fair treatment'' to 
mean that ``no group of people should bear a disproportionate burden of

[[Page 82952]]

environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.'' \21\ Recognizing the 
importance of these considerations to local communities, the EPA 
conducted an environmental justice screening analysis around the 
location of the facilities associated with this action to evaluate 
environmental and demographic indicators for the areas impacted by this 
proposed action. However, the EPA is providing the information 
associated with this analysis for informational purposes only. The 
information provided herein is not a basis of this proposed action.
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    \20\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
    \21\ Id.
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    The EPA conducted the screening analyses using EJScreen, an EJ 
mapping and screening tool that provides the EPA with a nationally 
consistent dataset and approach for combining various environmental and 
demographic indicators.\22\ The EJScreen tool presents these indicators 
at a census block group (CBG) level or a larger user-specified 
``buffer'' area that covers multiple CBGs.\23\ An individual CBG is a 
cluster of contiguous blocks within the same census tract and generally 
contains between 600 and 3,000 people. EJScreen is not a tool for 
performing in-depth risk analysis, but is instead a screening tool that 
provides an initial representation of indicators related to EJ and is 
subject to uncertainty in some underlying data (e.g., some 
environmental indicators are based on monitoring data which are not 
uniformly available; others are based on self-reported data).\24\ For 
informational purposes, we have summarized EJScreen data within larger 
``buffer'' areas covering multiple block groups and representing the 
average resident within the buffer areas surrounding the facilities. 
EJScreen environmental indicators help screen for locations where 
residents may experience a higher overall pollution burden than would 
be expected for a block group with the same total population in the 
U.S. These indicators of overall pollution burden include estimates of 
ambient particulate matter (PM2.5) and ozone concentration, 
a score for traffic proximity and volume, percentage of pre-1960 
housing units (lead paint indicator), and scores for proximity to 
Superfund sites, risk management plan (RMP) sites, and hazardous waste 
facilities.\25\ EJScreen also provides information on demographic 
indicators, including percent of low-income, communities of color, 
linguistic isolation, and less than high school education.
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    \22\ The EJSCREEN tool is available at https://www.epa.gov/ejscreen.
    \23\ See https://www.census.gov/programs-surveys/geography/about/glossary.html.
    \24\ In addition, EJSCREEN relies on the five-year block group 
estimates from the U.S. Census American Community Survey. The 
advantage of using five-year over single-year estimates is increased 
statistical reliability of the data (i.e., lower sampling error), 
particularly for small geographic areas and population groups. For 
more information, see https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf.
    \25\ For additional information on environmental indicators and 
proximity scores in EJSCREEN, see ``EJSCREEN Environmental Justice 
Mapping and Screening Tool: EJSCREEN Technical Documentation,'' 
chapter 3 and appendix C (September 2019) at https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf.
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    The EPA prepared EJScreen reports covering buffer areas of 
approximately five kilometers around the four facilities subject to the 
2008 Billings/Laurel SO2 FIP. From those reports, no 
facilities showed EJ indices greater than the 80th national 
percentiles.\26\ The full, detailed EJScreen reports are provided in 
the docket for this rulemaking.
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    \26\ For a place at the 80th percentile nationwide, that means 
20 percent of the U.S. population has a higher value. The EPA 
identified the 80th percentile filter as an initial starting point 
for interpreting EJScreen results. The use of an initial filter 
promotes consistency for the EPA's programs and regions when 
interpreting screening results.
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V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is exempt from review under Executive Order 12866, as 
amended by Executive Order 14094, as it is not a rule of general 
applicability. This action specifically applies to 4 facilities in the 
State of Montana.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (PRA), because it revises 
the reporting requirements for 4 facilities in the State of Montana.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities as no small 
entities are subject to the requirements of this rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This 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, because this proposed rule would not apply on 
any Indian reservation land or in any other area where the EPA or an 
Indian Tribe has demonstrated that the Tribe has jurisdiction, and it 
will not impose substantial direct costs on Tribal governments or 
preempt Tribal law. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997). The EPA interprets Executive Order 13045 as applying 
only to those regulatory actions that concern environmental health or 
safety risks that EPA has reason to believe may disproportionately 
affect children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it merely removes a provision from the 
2008 Billings/Laurel SO2 FIP that is inconsistent with the 
requirements of the CAA.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

[[Page 82953]]

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    The EPA believes that it is not practicable to assess whether the 
human health or environmental conditions that exist prior to this 
action result in disproportionate and adverse effects on communities 
with environmental justice concerns. While the EPA has identified the 
sources that would be impacted by the finalization of this proposed 
action, the EPA cannot quantify the baseline conditions and impacts the 
affirmative defense provisions have had on these sources, nor can we 
project potential emissions impacts from these sources as a result of 
this action. However, the EPA finds that this proposed action is 
expected to have a neutral to positive impact on the air quality of the 
affected area.
    The EPA performed a screening analysis using the EJScreen tool \27\ 
to evaluate environmental and demographic indicators for the areas 
impacted by this proposed action. The results of this assessment are in 
the docket for this action. The EPA is providing this information for 
public information purposes, and not as a basis of our proposed action.
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    \27\ EJSCREEN is an environmental justice mapping and screening 
tool that provides the EPA with a nationally consistent dataset and 
approach for combining environmental and demographic indicators; 
available at https://www.epa.gov/ejscreen/what-ejscreen.
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List of Subjects in 40 CFR Part 52

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

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

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart BB--Montana


Sec.  52.1392   [Amended]

0
2. In Sec.  52.1392, remove and reserve paragraph (i).

[FR Doc. 2024-23568 Filed 10-11-24; 8:45 am]
BILLING CODE 6560-50-P
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