Rule2023-15067
Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and Federal Operating Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 21, 2023
Effective
August 21, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is removing the "emergency" affirmative defense provisions from the EPA's title V operating permit program regulations. These provisions established an affirmative defense that sources could have asserted in enforcement cases brought for noncompliance with technology-based emission limitations in operating permits, provided that the exceedances occurred due to qualifying emergency circumstances. These provisions, which have never been required elements of state operating permit programs, are being removed because they are inconsistent with the EPA's interpretation of the enforcement structure of the Clean Air Act (CAA or the Act) in light of prior court decisions from the U.S. Court of Appeals for the D.C. Circuit. The removal of these provisions is also consistent with other recent EPA actions involving affirmative defenses and would harmonize the EPA's treatment of affirmative defenses across different CAA programs. Through this document, the EPA is also providing guidance on the implementation process resulting from the removal of the emergency affirmative defense provisions from the EPA's regulations, including the need for some state, local, and tribal permitting authorities to submit program revisions to the EPA to remove similar title V affirmative defense provisions from their EPA-approved title V programs, and to remove similar provisions from individual operating permits.
Full Text
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<title>Federal Register, Volume 88 Issue 139 (Friday, July 21, 2023)</title>
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[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Rules and Regulations]
[Pages 47029-47054]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15067]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[EPA-HQ-OAR-2016-0186; FRL-8961-02-OAR]
RIN 2060-AV39
Removal of Title V Emergency Affirmative Defense Provisions From
State Operating Permit Programs and Federal Operating Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is removing the
``emergency'' affirmative defense provisions from the EPA's title V
operating permit program regulations. These provisions established an
affirmative defense that sources could have asserted in enforcement
cases brought for noncompliance with technology-based emission
limitations in operating permits, provided that the exceedances
occurred due to qualifying emergency circumstances. These provisions,
which have never been required elements of state operating permit
programs, are being removed because they are inconsistent with the
EPA's interpretation of the enforcement structure of the Clean Air Act
(CAA or the Act) in light of prior court decisions from the U.S. Court
of Appeals for the D.C. Circuit. The removal of these provisions is
also consistent with other recent EPA actions involving affirmative
defenses and would harmonize the EPA's treatment of affirmative
defenses across different CAA programs. Through this document, the EPA
is also providing guidance on the implementation process resulting from
[[Page 47030]]
the removal of the emergency affirmative defense provisions from the
EPA's regulations, including the need for some state, local, and tribal
permitting authorities to submit program revisions to the EPA to remove
similar title V affirmative defense provisions from their EPA-approved
title V programs, and to remove similar provisions from individual
operating permits.
DATES: This final rule is effective on August 21, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2016-0186. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. 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, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Corey Sugerik, Office of Air Quality
Planning and Standards, Air Quality Policy Division (C504-05),
Environmental Protection Agency, Research Triangle Park, NC; telephone
number: (919) 541-3223; email address: <a href="/cdn-cgi/l/email-protection#b1c2c4d6d4c3d8da9fd2dec3d4c8f1d4c1d09fd6dec7"><span class="__cf_email__" data-cfemail="e19294868493888acf828e938498a1849180cf868e97">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How is this Federal Register document organized?
The information presented in this preamble is organized as follows:
I. General Information
A. How is this Federal Register document organized?
B. Does this action apply to me?
C. Where can I get a copy of this document and other related
information?
II. Background and Overview of the Final Action
III. Response to Significant Comments
A. Affirmative Defenses and the NRDC Decision
B. Exemptions and the Sierra Club Decision
C. Other Legal and Policy Considerations
D. Potential Impacts
E. Response to Comments Outside the Scope of This Action
IV. Implementation Considerations
A. Program Revisions
B. Permit Revisions
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (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
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
VI. Statutory Authority
VII. Judicial Review
B. Does this action apply to me?
Entities potentially directly affected by this rulemaking include
federal, state, local, and tribal air pollution control agencies that
administer title V operating permit programs.\1\ Entities potentially
indirectly affected by this rulemaking include owners and operators of
emissions sources in all industry groups who hold or apply for title V
operating permits.
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\1\ This preamble makes frequent use of the term ``state,''
usually meaning the state air pollution control agency that serves
as the permitting authority. The use of the term ``state'' also
applies to local, tribal, and U.S. territorial air pollution control
agencies, where applicable.
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C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at <a href="https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions">https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions</a>.
II. Background and Overview of the Final Action
The EPA has promulgated permitting regulations applicable to the
operation of major and certain other sources of air pollutants under
title V of the CAA. These regulations are codified in 40 CFR parts 70
and 71, which contain the requirements for state operating permit
programs and the federal operating permit program, respectively. These
regulations contained identical provisions establishing an affirmative
defense that sources could assert in enforcement actions brought for
noncompliance with technology-based emission limitations caused by
specific emergency circumstances. These ``emergency'' provisions were
located at 40 CFR 70.6(g) and 71.6(g).
In this action, the EPA is removing the emergency affirmative
defense provisions in 40 CFR 70.6(g) and 71.6(g) because they are
inconsistent with the EPA's current interpretation of the enforcement
structure of the CAA, in light of prior court decisions from the U.S.
Court of Appeals for the D.C. Circuit--primarily the court's 2014
decision in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). The removal of
these provisions is also consistent with other recent EPA actions
involving affirmative defenses \2\ and will harmonize the EPA's
treatment of affirmative defenses across different CAA programs. The
EPA previously provided background on the title V emergency provisions
and articulated its justification for this action in the preamble to
the 2016 and 2022 proposed rules preceding this final
rule.<SUP>3 4</SUP> Section III. of this document responds to
significant comments we received on those proposals and provides
additional information in support of this final rule.
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\2\ In newly issued and revised New Source Performance Standards
(NSPS), emission guidelines for existing sources, and NESHAP
regulations, the EPA has either omitted new affirmative defense
provisions or removed existing affirmative defense provisions. See,
e.g., National Emission Standards for Hazardous Air Pollutants for
the Portland Cement Manufacturing Industry and Standards of
Performance for Portland Cement Plants; Final Rule, 80 FR 44771
(July 27, 2015); National Emission Standards for Hazardous Air
Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters; Final Rule, 80 FR 72789
(November 20, 2015); Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Commercial and
Industrial Solid Waste Incineration Units; Final Rule, 81 FR 40956
(June 23, 2016).
\3\ See Removal of Title V Emergency Affirmative Defense
Provisions From State Operating Permit Programs and Federal
Operating Permit Program, Proposed Rule, 81 FR 38645 (June 14,
2016); Removal of Title V Emergency Affirmative Defense Provisions
From State Operating Permit Programs and the Federal Operating
Permit Program, Proposed Rule, 87 FR 19042 (April 1, 2022).
\4\ Docket No. EPA-HQ-OAR-2016-0186 comprises all supporting
documents and public comments for both the 2016 and 2022 proposals.
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As a consequence of the EPA's action to remove these provisions
from 40 CFR 70.6(g), it will be necessary for any states that have
adopted similar affirmative defense provisions in their part 70
operating permit programs to revise their part 70 programs to remove
these provisions. In addition, individual operating permits that
contain title V affirmative defenses based on 40 CFR 70.6(g) or similar
state regulations will eventually need to be revised. The EPA discussed
its expectations concerning how states will implement this rule in
section V. of the preamble to the 2016 proposed rule and also requested
[[Page 47031]]
comments on some of the aspects discussed. Additional information
regarding these implementation considerations and the EPA's response to
relevant comments received on these issues are included in section IV.
of this document.
EPA expects that program revisions to remove the title V emergency
defense provisions from state operating permit programs will include,
at minimum: (1) a redline document identifying the state's proposed
revision to its part 70 program rules; (2) a brief statement of the
legal authority authorizing the revision; and (3) a schedule and
description of the state's plans to remove affirmative defense
provisions from individual operating permits. The EPA encourages states
to consult with their respective EPA regional offices on the specific
contents of their revision submittal packages.
In general, any impermissible affirmative defense provisions within
individual operating permits that are based on a title V authority and
that apply to federally-enforceable requirements will need to be
removed. As explained in the 2016 proposal, the EPA expects that any
necessary permit changes should occur in the ordinary course of
business, such as during periodic permit renewals or revisions. At the
latest, states would be expected to remove affirmative defense
provisions from individual permits by the next periodic permit renewal
that occurs following either (1) the effective date of this rule (for
permit terms based on 40 CFR 70.6(g) or 71.6(g)) or (2) the EPA's
approval of state program revisions (for permit terms based on a state
affirmative defense provision).
III. Response to Significant Comments
This section contains the EPA's response to significant comments
regarding the EPA's proposed action to remove 40 CFR 70.6(g) and
71.6(g) and provides the EPA's justification for this final action.
Comments and the EPA's responses are divided into four general topic
areas: section III.A. of this document discusses the legal basis for
this action in light of the NRDC decision; section III.B. discusses
issues related to exemptions from emission limitations and the D.C.
Circuit's 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir.
2008); section III.C. discusses other legal and policy considerations;
and section III.D. discusses various issues involving the consequences
of removing the title V emergency affirmative defense provisions from
operating permit programs, focusing primarily on the impact on sources.
A. Affirmative Defenses and the NRDC Decision
The following subsections address comments received concerning the
NRDC decision and the EPA's legal basis for this action. Subsections
III.A.1. and III.A.2. of this document address general comments either
supporting or opposing the EPA's interpretation of the NRDC decision.
Subsection III.A.3. addresses specific comments concerning the extent
to which the NRDC decision should apply beyond the context of citizen-
suit enforcement under CAA section 304, and how the decision should
inform the EPA's treatment of affirmative defenses in the context of
EPA-initiated judicial enforcement and administrative penalty actions
under CAA sections 113(b) and (d). Specific comments that discuss the
relationship between the NRDC decision and prior case law are presented
in section III.C.2. of this document.
1. Support for the EPA's Interpretation of the CAA's Enforcement
Structure in Light of the NRDC Decision
Comment: Multiple environmental and state commenters supported the
EPA's view that, in light of NRDC, the title V emergency affirmative
defense provisions should be removed because they impermissibly limit
the authority of courts to decide appropriate penalties in private
civil suits. Some commenters claimed that the EPA lacks the authority
to create such provisions. Other state and industry commenters
acknowledged that the NRDC decision limits the EPA's discretion to
retain affirmative defense provisions, either altogether or in certain
contexts. Commenters argued that when Congress wanted to limit the
authority of courts, to allow an affirmative defense or to permit an
extrajudicial entity to modify penalties, it did so expressly, citing
CAA sections 113(e)(1), 113(c)(5)(C)-(D), and 113(d)(2)(B).
Some commenters asserted that the NRDC decision applies beyond the
specific context of CAA section 112 standards because the court's
rationale was based on CAA sections 113 and 304, not CAA section 112.
Therefore, commenters concluded that the prohibition on affirmative
defenses applies to any citizen-enforceable emission standards or
limitations under the Act. Commenters claimed that NRDC is applicable
to the title V emergency affirmative defense provisions because, like
the hazardous air pollution standards at issue in NRDC, all other
emission standards contained in title V operating permits are
enforceable under CAA section 304. Some commenters further asserted
that the fundamental principles underlying the NRDC decision with
respect to affirmative defenses were reinforced by the D.C. Circuit's
2016 decision in U.S. Sugar v. EPA.\5\
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\5\ U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016),
amended on rehearing on unrelated grounds, U.S. Sugar Corp v. EPA,
844 F.3d 268 (D.C. Cir. 2016).
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Response: The EPA generally agrees with commenters supporting the
legal basis for this action to remove the emergency affirmative defense
provisions from the EPA's title V regulations. The EPA previously
explained its legal rationale for this action in the 2016 and 2022
proposed rules.\6\ Here, the EPA reiterates some of the primary legal
principles guiding this current action.
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\6\ See 81 FR 38649. As noted in the 2016 and 2022 proposals,
the EPA has also previously explained its interpretation of the CAA
in light of the NRDC decision at great length in multiple other
documents, including documents supporting the EPA's 2015 SSM SIP
Action. See State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction; Supplemental Proposal To Address
Affirmative Defense Provisions in States Included in the Petition
for Rulemaking and in Additional States, Supplemental Notice of
Proposed Rulemaking, 79 FR 55919, 55929 (September 17, 2014) (SSM
SIP Action Supplemental Proposal); State Implementation Plans:
Response to Petition for Rulemaking; Restatement and Update of EPA's
SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy;
SIP Calls To Amend Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown and Malfunction, Final Action, 80 FR
33839, 33851 (June 12, 2015) (SSM SIP Action); and Memorandum,
Withdrawal of the October 9, 2020, Memorandum Addressing Startup,
Shutdown, and Malfunctions in State Implementation Plans and
Implementation of the Prior Policy, 3-4 (September 30, 2021),
available at <a href="https://www.epa.gov/system/files/documents/2021-09/oar-21-000-6324.pdf">https://www.epa.gov/system/files/documents/2021-09/oar-21-000-6324.pdf</a> (September 2021 SSM SIP Memo).
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The EPA's current interpretation of the CAA with respect to
affirmative defenses is informed by the D.C. Circuit's NRDC decision.
In NRDC, the D.C. Circuit vacated affirmative defense provisions
contained in the EPA's National Emission Standards for Hazardous Air
Pollutants (NESHAP) for the portland cement industry, promulgated under
CAA section 112. The D.C. Circuit concluded that the EPA lacked the
authority to create these affirmative defense provisions because they
contradicted fundamental requirements of the Act concerning the
authority of courts to decide whether to assess civil penalties in CAA
enforcement suits. Importantly, the court's decision did not turn upon
any specific provisions of CAA section 112, but rather on the
provisions of CAA sections 113 and 304. These provisions
[[Page 47032]]
pertain to enforcement of a wide variety of CAA requirements beyond
section 112 standards, including enforcement of emission limits
contained in title V permits. Thus, the mere fact that the court
addressed the legality of an affirmative defense provision in the
context of a section 112 NESHAP does not mean that the court's
interpretation of sections 113 and 304 does not also apply more
broadly. To the contrary, the EPA sees no reason why the logic of the
court concerning sections 113 and 304 would not apply to the title V
emergency affirmative defense provisions, as well.
Notably, in 2016, the D.C. Circuit reaffirmed its NRDC opinion
concerning affirmative defenses. In U.S. Sugar, the D.C. Circuit
addressed various challenges to rules promulgated in 2011, including
challenges urging that--in the absence of affirmative defenses--the EPA
was required to address periods of malfunction in setting the
applicable standards. Discussing NRDC, the U.S. Sugar opinion stated
that the affirmative defense provision at issue in the NRDC case was
``an impermissible intrusion on the judiciary's role.'' \7\ The fact
that the title V emergency affirmative defenses arguably apply more
broadly (i.e., to potentially numerous technology-based emission limits
developed under multiple CAA program areas) than the affirmative
defense at issue in NRDC potentially makes it even more intrusive on
the judiciary's role.
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\7\ See U.S. Sugar, 830 F.3d at 607.
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In light of the NRDC decision and the EPA's reevaluation of the
CAA, the EPA interprets the enforcement provisions in sections 113 and
304 of the CAA to preclude affirmative defense provisions that would
operate to limit a court's authority or discretion to determine the
appropriate remedy in an enforcement action. Section 304(a) grants the
federal district courts jurisdiction to determine liability and to
impose penalties in enforcement suits brought by citizens. Similarly,
section 113(b) grants the federal district courts jurisdiction, in
enforcement actions brought by the U.S. Department of Justice (DOJ) on
behalf of the EPA, to determine liability and to impose remedies of
various kinds, including injunctive relief and monetary penalties.
These grants of jurisdiction come directly from Congress, and the EPA
is not authorized to alter or eliminate this authority. With respect to
monetary penalties, CAA section 113(e) lists various factors that
courts and the EPA shall consider in the event of judicial or
administrative enforcement for violations of CAA requirements,
including title V permit conditions. Because Congress has already given
federal courts the authority to determine what penalties are
appropriate in the event of judicial enforcement for a violation of a
title V permit provision, neither the EPA nor states should be able to
alter or eliminate that authority by superimposing restrictions on the
authority and discretion granted by Congress to the courts. Affirmative
defense provisions by their nature limit or eliminate the authority of
federal courts to determine liability or to impose remedies through
considerations that differ from the explicit grants of authority in
section 113(b) and section 113(e). Therefore, these provisions are not
appropriate under the CAA, no matter what type of event they apply to,
what criteria they contain, or what forms of remedy they purport to
limit or eliminate. The emergency affirmative defense provisions that
the EPA is removing from 40 CFR 70.6(g) and 71.6(g) purported to
interfere with the authority of the courts to determine whether and to
what extent penalties or other remedies were appropriate in judicial
enforcement actions, conflicted with the holding of NRDC, and were
contrary to the enforcement structure of the CAA. Thus, the EPA has
determined that these provisions should be removed from the EPA's
regulations.
Section IV.A. of this document contains additional information
concerning the need for states to submit program revisions to remove
similar title V affirmative defense provisions from EPA-approved state
operating permit programs, and to remove similar provisions from
individual operating permits.
2. Comments Suggesting That the NRDC Case Is a Narrow Decision That the
EPA Is Incorrectly Extending or Misapplying
Comment: Some commenters stated that the D.C. Circuit's decision in
NRDC v. EPA was limited to the particular facts or circumstances of
that case and that the EPA's reliance on the decision to support
removal of the title V emergency affirmative defense provisions is an
incorrect extension or misapplication of the decision. Commenters
generally claimed that the EPA should not apply the NRDC court's ruling
to every corner of the CAA, including to the title V affirmative
defense provisions within the EPA's regulations and state operating
permit programs. Some commenters stated that the NRDC decision only
invalidated an affirmative defense associated with a NESHAP issued in
accordance with CAA section 112, and that the decision should be
limited to those standards (or, even, to the specific standards for
portland cement plants subject to that litigation). Commenters alleged
that the D.C. Circuit provided no language to broaden its ruling. Some
commenters focused on the specific statutory mandates involved in
establishing section 112 standards. One commenter alleged that the D.C.
Circuit held that once a section 112 standard is promulgated and
established for all operating modes, no ``gap'' remains for the EPA to
create an affirmative defense.
Other commenters focused on the differences between title V permits
and the section 112 standards that the NRDC court considered. These
commenters explained that title V permits contain numerous different
underlying standards applicable to a source (such as standards
developed under a State Implementation Plan (SIP) or under New Source
Review Programs), as well as additional procedural and monitoring,
reporting, and recordkeeping requirements. Thus, one commenter asserted
that enforcement of title V permit requirements differs from
enforcement of specific section 112 emission limits, and that the D.C.
Circuit's logic prohibiting affirmative defenses does not apply to
other types of applicable requirements in a title V permit, including
substantive standards as well as administrative or procedural
requirements.
Some commenters attempted to distinguish the title V emergency
affirmative defense, which at least one commenter characterized as a
defense to ``liability'' or ``noncompliance,'' from the affirmative
defense to ``civil penalties'' at issue in the NRDC case. One commenter
claimed that the NRDC decision was based on the assumption that excess
emissions automatically result in a violation of a section 112
standard, and therefore that the D.C. Circuit only addressed how
affirmative defense provisions affect a court's authority to determine
appropriate remedies after an actionable violation has been identified.
Multiple commenters asserted that neither CAA section 113 nor the NRDC
case speak to provisions that define when a violation has occurred.
Some commenters also asserted that the NRDC decision involved an
affirmative defense for malfunctions, not emergencies, and concluded
that the EPA should not apply the decision to the title V emergency
affirmative defense because malfunctions are not similar in nature to
emergencies.
Some commenters also claimed more generally that the title V
affirmative defense provisions do not impair a court's ability to
decide whether a source has met its burden of
[[Page 47033]]
demonstrating that an emergency has occurred and whether civil
penalties are appropriate. Other commenters discussed the breadth of
the NRDC case with respect to SIP provisions. Commenters asserted that
the D.C. Circuit did not opine on the authority of the EPA or states to
provide relief from noncompliance with technology-based SIP standards
that are incorporated into title V operating permits. Commenters also
claimed that the D.C. Circuit expressly reserved judgment concerning
the validity of such defenses in SIPs,\8\ and that states have
discretion under the CAA to include affirmative defense provisions in
their SIPs. These commenters attempted to distinguish SIPs from the
section 112 standards at issue in the NRDC case. Multiple commenters
also incorporated in their comment submissions various attachments
related to the Startup, Shutdown, and Malfunction (SSM) SIP Action,\9\
including comments submitted on the initial and supplemental SSM SIP
Call proposals \10\ as well as briefs filed in the ongoing SSM SIP
Action litigation.\11\ Portions of these attachments addressed the
EPA's interpretation of the NRDC case.
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\8\ Commenters cited NRDC, 749 F.3d at 1064 n.2.
\9\ SSM SIP Action, 80 FR 33840.
\10\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction; Proposed Rule, 78 FR 12460
(February 22, 2013); SSM SIP Action Supplemental Proposal, 79 FR
55919.
\11\ Environmental Committee of the Florida Electric Power
Coordinating Group, Inc. v. EPA, No. 15-1239 (D.C. Cir.) (SSM SIP
Action litigation).
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Response: The EPA disagrees with commenters' assertions that the
logic of the NRDC case was restricted to the context of section 112
standards, or to a single NESHAP standard. Most of these comments do
not address the fundamental legal principles upon which the D.C.
Circuit based its decision, or the EPA's explanation of these
principles. Contrary to what some commenters suggest, the NRDC decision
was not based on any statutory mandates specific to promulgating CAA
section 112 standards. Instead, the decision was based on CAA sections
113 and 304, which apply broadly to the enforcement of a wide range of
CAA requirements, including SIP requirements. Thus, any differences
between section 112 standards and other standards contained in title V
permits (or, for example, the difference between malfunctions and
emergencies) are irrelevant to the legal principles upon which the NRDC
decision was based, and which apply equally well to the EPA's title V
regulations in 40 CFR 70.6(g) and 71.6(g), as discussed in the
preceding subsection.
The EPA also disagrees that NRDC is distinguishable from the
current action due to any functional differences between the
affirmative defense at issue in NRDC, which some commenters
characterized as a defense to a claim for civil penalties for
violations, and the title V emergency affirmative defense, which
commenters characterized as a defense to an action brought for
noncompliance. Both the title V affirmative defense and the portland
cement NESHAP malfunction affirmative defense (originally located at 40
CFR 63.1344) established an affirmative defense that a source could
assert in actions brought under CAA sections 113 and 304, after an
enforcement action had been initiated for an alleged violation.\12\
Both affirmative defense provisions functioned in the same manner. The
fact that the portland cement defense was confined to enforcement
actions for penalties, whereas the title V provisions do not on their
face contain such an explicit restriction and could potentially be read
more broadly, is irrelevant to the fact that both provisions purported
to interfere with the authority of courts to determine whether and to
what extent relief is appropriate in a given case, including relief
from penalties. Moreover, CAA section 304(a), upon which the D.C.
Circuit relied, is not restricted to monetary penalties. The EPA has
previously explained its position that affirmative defenses are
inappropriate regardless of what type of event they apply to, what
criteria they contain, or what forms of remedy they purport to limit or
eliminate. The EPA also notes that the title V emergency affirmative
defense provisions were explicitly restricted to noncompliance with
technology-based emission limits (such as emission limits derived from
a NESHAP similar to the ones the D.C. Circuit invalidated) and were
never available as a defense in an enforcement case for violations of
other types of title V permit requirements, contrary to some
commenters' assertions.
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\12\ To the extent that commenters argue that the title V
affirmative defenses function to define when a violation has
occurred, these comments are addressed further in section III.B.1.
of this document.
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Finally, the EPA disagrees with commenters' claims that the title V
affirmative defense provisions would not impair a court's ability to
decide whether civil penalties are appropriate because a source
attempting to invoke the title V emergency affirmative defense would
have the burden to prove that an emergency occurred and other
demonstration requirements had been met. The affirmative defense
provision formerly in the portland cement NESHAP was similarly
structured, and the D.C. Circuit nonetheless found that those
provisions impermissibly intruded into the judiciary's role to
determine whether penalties are appropriate. Any comments challenging
the holding of the D.C. Circuit in NRDC are beyond the scope of this
rulemaking. To the extent that commenters suggested that a title V
affirmative defense provision could be appropriate with respect to
certain technology-based SIP requirements contained in a title V
permit, the EPA disagrees. For the reasons previously discussed,
affirmative defense provisions in title V permits are not appropriate
with respect to any federally-enforceable requirements. To the extent
that commenters discussed the relationship between the NRDC and Sierra
Club cases and affirmative defense provisions contained within SIPs,
and to the extent that commenters incorporated comments or briefs
relevant to the SSM SIP Action but did not specifically explain how
those comments were pertinent to the EPA's proposal to eliminate the
title V emergency affirmative defense provisions, such comments are
beyond the scope of this current rulemaking. Moreover, the EPA has
previously responded to those comments and legal briefs in the
appropriate venues.\13\ To the extent that comments addressed issues
relevant to this action, the EPA is responding to these comments in
this document.
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\13\ See SSM SIP Action, 80 FR 33840, 33852 (noting that
``[s]tates have great discretion in how to devise SIP provisions,
but they do not have discretion to create provisions that contradict
fundamental legal requirements of the CAA'' and that ``[t]he
jurisdiction of federal courts to determine liability and to impose
statutory remedies for violations of SIP emission limitations is one
such fundamental requirement''); Initial Brief of Respondent EPA,
SSM SIP Action Litigation (filed July 26, 2016).
---------------------------------------------------------------------------
3. The NRDC Case As It Applies Beyond Citizen-Suit Enforcement Under
CAA Section 304(a)
Comment: Many commenters argued that the NRDC decision only
invalidated affirmative defenses that could be asserted in citizen
suits brought under CAA section 304 in federal court. These commenters
asserted that the NRDC case does not require the EPA to remove
affirmative defenses with respect to either: (1) EPA-initiated civil
judicial enforcement actions under section 113(b); or (2)
administrative penalty actions brought under section 113(d). Many of
these commenters recommended that instead of entirely
[[Page 47034]]
removing the title V emergency affirmative defense provisions, the EPA
should amend the provisions to clarify that they do not apply to any
enforcement actions based on section 304, but only to actions based on
sections 113(b) and (d).
First, regarding EPA-initiated enforcement under section 113(b),
some commenters acknowledged the EPA's position (as explained in the
2016 proposed rule) that, because both sections 304 and 113(b) vest
federal district courts with the ability to determine liability and
assess penalties, the EPA's hands are tied with respect to its own
civil enforcement. One commenter noted that the NRDC case did not
directly speak to enforcement actions brought by the EPA under section
113(b). Other commenters claimed that section 113(b) does nothing to
impede the EPA's ability to define the circumstances under which it is
``appropriate'' to initiate an enforcement action, and that this would
not interfere with the authority of a court to determine liability and
assess penalties in an eventual enforcement action. Some commenters
suggested that the EPA could use the affirmative defense to define by
rule when it would be appropriate to commence an enforcement action,
and others noted that the practical effect of the defense is to define
when the EPA will exercise its enforcement discretion to initiate an
enforcement action in the courts.
Second, regarding the EPA's authority to assess administrative
penalties under section 113(d), commenters cited language from the NRDC
decision, wherein the D.C. Circuit noted that, although the EPA did not
have discretion to determine whether civil penalties should be imposed
by a court, the agency had discretion to determine whether to assess
administrative penalties under section 113(d).\14\ Various commenters
similarly alleged that because CAA section 113(d) explicitly gives the
EPA the authority to modify penalties, it therefore allows the EPA to
establish an affirmative defense in the context of administrative
enforcement. Some commenters claimed that retaining the title V
affirmative defense for administrative enforcement is especially
important because most penalties related to emission exceedances are
imposed through administrative penalties sought by the agency, not as a
result of citizen suits in federal court. Finally, some commenters
suggested that the EPA could define when it would be appropriate to
assess administrative penalties.
---------------------------------------------------------------------------
\14\ See NRDC, 749 F.3d at 1063.
---------------------------------------------------------------------------
Commenters also made similar arguments with respect to the ability
of states to determine when it would be appropriate to pursue
enforcement action, whether through the courts or with respect to
administrative penalties.
Response: The EPA disagrees with the claim that it would be
appropriate to retain the title V affirmative defense provisions for
use in EPA-initiated judicial enforcement or administrative penalty
actions. First, as explained previously and as acknowledged by
commenters, the logic of the NRDC case applies not only to citizen-suit
actions under section 304(a), but also to judicial enforcement actions
initiated by DOJ on behalf of the EPA pursuant to section 113(b). Like
section 304(a), section 113(b) involves enforcement actions that are
ultimately brought before federal courts. Therefore, any affirmative
defense that could be asserted in an enforcement proceeding brought
under section 113(b) would similarly infringe on the authority of
courts to determine appropriate penalties. Regarding suggestions that
the EPA could treat the affirmative defense as establishing criteria
defining whether the EPA considers it ``appropriate'' to commence an
enforcement action under section 113(b), the EPA finds that this is not
necessary or appropriate. For the reasons provided in section III.D.2.
of this document, the EPA has decided not to explicitly codify such an
``enforcement discretion'' type provision.
Second, the EPA acknowledges that NRDC does not address the EPA's
authority to establish an affirmative defense to CAA section 113(d)
administrative actions. However, such an affirmative defense is not
necessary. As discussed further in section III.D.2., if a source
believes it is unable to comply with emissions standards as a result of
an emergency, the EPA may use its case-by-case enforcement discretion
to determine whether to initiate enforcement, as appropriate. Further,
as the D.C. Circuit recognized, in an EPA or citizen enforcement
action, the court has the discretion to consider any defense raised and
determine whether penalties are appropriate.\15\ The same is true for
EPA administrative actions. Moreover, assessment of penalties for
violations in administrative proceedings and judicial proceedings
should generally be consistent. Cf. CAA section 113(e), 42 U.S.C.
7413(e) (requiring both the Administrator of the EPA and the court to
take specified criteria into account when assessing penalties). The EPA
has previously explained this approach in various rules developed under
CAA sections 111, 112, and 129.\16\
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\15\ See NRDC, 749 F.3d at 1064; see also U.S. Sugar, 830 F.3d
at 609. (``[Sources] can argue that penalties should not be assessed
because of an unavoidable malfunction'' and courts ``should not
hesitate to exercise their judicial authority to craft appropriate
civil remedies in the case of emissions exceedances caused by
unavoidable malfunctions.'').
\16\ See, e.g., National Emission Standards for Hazardous Air
Pollutants Residual Risk and Technology Review for Flexible
Polyurethane Foam Production; Final Rule, 79 FR 48073, 48082 n.3
(August 15, 2014); Oil and Natural Gas Sector: Reconsideration of
Additional Provisions of New Source Performance Standards; Final
Rule, 79 FR 79017, 79024 n.3 (December 31, 2014); National Emission
Standards for Hazardous Air Pollutants: Polyvinyl Chloride and
Copolymers Production Reconsideration; Proposed Rule, 85 FR 71490
n.16 (November 9, 2020).
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Section IV.A.3. of this document discusses similar issues regarding
how states may be able to implement this rule by retaining or
developing similar provisions that apply in the limited context of
state-initiated administrative enforcement actions or judicial
enforcement in state courts.
B. Exemptions and the Sierra Club Decision
In the 2016 proposed rule, the EPA noted that the D.C. Circuit in
Sierra Club vacated an EPA rule that exempted sources from otherwise
applicable emissions standards during periods of SSM because the SSM
exemption violated the CAA requirement that such standards apply
continuously. The EPA stated that, although the title V emergency
affirmative defenses were not exemptions, if they were to be construed
or treated as exemptions, they would run afoul of Sierra Club and also
should be removed for that reason. The EPA received various comments
relating to these issues.
1. Comments Suggesting That the Title V Emergency Provisions Create an
Exemption to Emission Limits or Define Whether a Violation Has Occurred
Comment: Commenters presented differing perspectives on how the
title V emergency affirmative defense provisions function. The majority
of commenters addressing this topic supported the EPA's position that
the title V affirmative defense provisions, by their terms, clearly
function as an affirmative defense, rather than as exemptions or
provisions that define when a violation occurs. Commenters supporting
this perspective explained that applicable emission limits would still
apply during an emergency, and exceedances would still constitute a
[[Page 47035]]
violation, but sources could later assert the affirmative defense in an
effort to demonstrate to either the agency or a judge that, despite a
violation of the applicable requirement, there are valid reasons to
excuse the source from some or all penalties associated with the
violation. Another commenter noted the very strict conditions that a
source attempting to claim the affirmative defense for an emergency
would have to comply with and document in order to be eligible for the
affirmative defense. Similarly, commenters acknowledged that asserting
this defense would not automatically mean it was granted.
However, other commenters suggested that the affirmative defense
provisions functionally serve as exemptions to applicable emission
limits or define when a violation of an emission limit has occurred.
For example, one commenter claimed that the title V affirmative defense
provisions operate as an exemption, whereby no restriction or emission
limit would exist in specific emergency circumstances. One commenter
suggested that the affirmative defenses found in 40 CFR 70.6(g) are an
affirmative defense to liability rather than an affirmative defense for
the reduction of penalties, which the commenter claims was considered
in NRDC. Other commenters claimed that the title V affirmative defense
essentially provides criteria for the EPA, the state, or a court to
consider when deciding whether excess emissions trigger a violation in
the first instance, and these commenters attempted to distinguish the
title V affirmative defense from the section 112 affirmative defense at
issue in the NRDC decision. Environmental commenters stated that the
emergency provisions could be interpreted to mean that, when their
terms are met, a source did not violate the relevant emission
limitation, thereby effectively providing an exemption. Environmental
commenters also argued that this type of functional exemption would be
illegal.
Finally, one commenter suggested that the EPA convert the emergency
affirmative defense provisions into a narrowly tailored exemption from
technology-based standards. The commenter asserted that this approach
would be within the EPA's authority, and that an exemption would
provide more consistency than the use of enforcement discretion alone.
Response: The EPA agrees with the majority of commenters that
acknowledged that the title V emergency affirmative defense provisions
did not create exemptions or otherwise define whether a violation has
occurred, as stated in the proposal.\17\ The provisions being removed
through this action, found at 40 CFR 70.6(g)(2) and 71.6(g)(3) state,
in part, ``An emergency constitutes an affirmative defense to an action
brought for noncompliance with . . . technology-based emission
limitations.'' By their terms, these provisions explicitly purported to
establish an affirmative defense to an enforcement action, not an
exemption. Moreover, these provisions purported to establish an
affirmative defense to an action brought for noncompliance with certain
emission limits. So, before the defense would apply, alleged
noncompliance with an emissions limitation would have already occurred,
and an enforcement action (administrative or judicial) would have been
brought because of such noncompliance. The title V affirmative
defenses, like the affirmative defense provisions at issue in the NRDC
case, were thus based on the establishment of an alleged violation of
permitted emission limits in the first instance. Moreover, it would not
have been the burden of the party bringing an action for noncompliance
to negate any claimed emergency ``exemption'' to an otherwise
applicable emission limit. Rather, it would clearly have been the
source's burden in defending against such an action to properly assert
and prove all the elements of the emergency affirmative defense.\18\
The result of a successfully pled affirmative defense would be to
provide the decision maker in an enforcement case with reasons why,
despite violations of an emission limit, the source should not be held
liable and assessed penalties (or potentially other forms of relief)
for such noncompliance. Therefore, the EPA believes that the title V
emergency affirmative defense provisions were not intended and should
not be interpreted to function as an exemption or to otherwise define
when a violation has occurred.
---------------------------------------------------------------------------
\17\ See 81 FR 38645, 38651.
\18\ See 40 CFR 70.6(g)(4) (the ``permittee . . . has the burden
of proof'').
---------------------------------------------------------------------------
To the extent that the affirmative defense provisions could have
been interpreted to provide an exemption or define whether a violation
has occurred, the EPA reiterates that such an exemption would be
impermissible under the EPA's interpretation of the CAA and in light of
Sierra Club. Some commenters suggested that the EPA should interpret
the affirmative defense to function as an affirmative defense to
liability or to define whether the emission limitation applies and thus
whether there is a ``violation.'' But, if there is no ``violation''
when certain criteria or conditions for an affirmative defense are met,
then there is, in effect, no emission limitation that applies when the
criteria or conditions are met, and the affirmative defense would
operate to create an exemption from the emission limitation. As
discussed in the following subsection, and based on the EPA's
interpretation of the Sierra Club decision, this would violate the
basic CAA principle that emission limitations must apply continuously
and cannot contain exemptions, conditional or otherwise. For the same
reasons, it is not appropriate to convert the title V emergency
affirmative defense provisions into an exemption, as suggested by a
commenter.
2. Comments Interpreting the Sierra Club Case With Respect to
Exemptions From Emission Limitations
Comment: Commenters presented differing views on the EPA's
interpretation of Sierra Club. Environmental commenters supported the
EPA's conclusion that exemptions from emission limitations are
unlawful, and that, to the extent that the title V emergency
affirmative defense provisions could be interpreted as providing for an
exemption, those provisions would be unlawful. Commenters noted that in
the Sierra Club case, the D.C. Circuit held that sections 112 and
302(k), read together, require that there must be continuous section
112-compliant standards. Commenters claimed that the statutory terms
``emission standard'' and ``emission limitation'' mean the same thing,
citing CAA section 302(k). Therefore, commenters asserted the court's
holding in Sierra Club also applies to the emission limitations
affected by the title V affirmative defenses. Environmental commenters
further asserted that the fundamental principles underlying the Sierra
Club decision with respect to exemptions were reinforced by the D.C.
Circuit's U.S. Sugar decision.
However, a number of industry commenters challenged the EPA's
interpretation of the Sierra Club case, arguing generally that the case
has limited applicability beyond the context of section 112 standards.
Some commenters asserted that Sierra Club is not relevant to the
current rulemaking because the case was anchored to the unique language
of CAA section 112 and only addressed exemptions under CAA section 112,
rather than regulations in operating permit programs, SIP requirements,
or New Source Performance Standards (NSPS) regulations. One commenter
argued that because the Sierra Club decision was
[[Page 47036]]
limited to section 112 standards, the decision could at most be read to
prohibit title V provisions excusing noncompliance with an underlying
NESHAP provision.
Other commenters asserted that requirements that limit emissions on
a continuous basis do not have to impose the same limitation at all
times, and that the form of the limitation does not always have to be
the same. For example, commenters noted that CAA section 302(k)
includes design, equipment, work practice, and operational standards,
which could apply during periods of operation not covered by a
numerical emissions limitation. These commenters claim that the Sierra
Club case did not approach the question of whether these different
types of standards would be acceptable. One commenter also asserted
that the emergency affirmative defense is not an exemption from
continuously applicable emission limits.
Response: As discussed in the preceding subsection, the title V
emergency affirmative defense provisions should not be interpreted to
provide an exemption to emission limits or otherwise define when a
violation of an emission limitation has occurred. However, as noted in
the proposal, to the extent that the title V provisions could be
interpreted as providing such an exemption, this would run afoul of the
CAA requirement that emission limitations be continuous. See CAA
section 302(k), 42 U.S.C. 7602(k). The EPA disagrees with commenters'
assertions that the Sierra Club court's reasoning does not apply beyond
section 112 standards. As the EPA has explained in depth in other
documents, the same logic prohibiting exemptions from NESHAP emission
limits applies to other emission limitations subject to the definition
of ``emission limitation'' within section 302(k), including emission
limits contained within a source's title V permit.\19\ Finally,
comments on whether it is appropriate to impose different types of
emission limitations during different modes of operation may be
relevant to standard-setting or other proceedings where such
limitations are established, but these comments are not material to
this rulemaking to remove the title V emergency affirmative defense
provisions.
---------------------------------------------------------------------------
\19\ See, e.g., SSM SIP Action, 80 FR 33892 (``Since the 2008
D.C. Circuit decision in Sierra Club v. Johnson, however, it has
been clear that NSPS and NESHAP standards themselves cannot contain
such exemptions. The reasoning of the court was that exemptions for
SSM events are impermissible because they contradict the requirement
that emission limitations be `continuous' in accordance with the
definition of that term in section 302(k). Although the court
evaluated this issue in the context of EPA regulations under section
112, the EPA believes that this same logic extends to SIP provisions
under section 110, which similarly must contain emission limitations
as defined in the CAA. Section 110(a)(2)(A) requires states to have
emission limitations in their SIPs to meet other CAA requirements,
and any such emission limitations would similarly be subject to the
definition of that term in section 302(k).''); see also id. at
33862.
---------------------------------------------------------------------------
C. Other Legal and Policy Considerations
This section addresses comments involving other legal and policy
considerations related to the EPA's removal of the title V emergency
affirmative defense provisions.
1. Ongoing SSM SIP Action Litigation
Comment: Some state and industry commenters urged the EPA to delay
finalizing this action until the ongoing SSM SIP Action litigation
concludes. These commenters claimed that the EPA's rationale underlying
this title V action depends on the same core legal issues involving the
EPA's interpretation of the NRDC and Sierra Club cases, which the
commenters claimed is currently under judicial review in the SSM SIP
Action litigation. One commenter further asserted that an adverse
ruling in the SSM SIP Action litigation would be dispositive of the
issues involved here.
Response: The EPA disagrees with the commenters' suggestion to
delay this final action. The EPA has no reason to delay moving forward
with the removal of affirmative defense provisions from various CAA
program areas, including title V, solely because litigants have
challenged the SSM SIP Action. The EPA is confident of the strong legal
and policy bases for this current action, as well as prior actions in
the SSM SIP Action and numerous regulations promulgated under CAA
sections 111, 112, and 129 that also address affirmative defense
provisions. In fact, the EPA's interpretation of the CAA and its
application of relevant court decisions was upheld by the D.C.
Circuit.\20\ The EPA also disagrees with commenters' assertions that an
adverse decision with respect to the SSM SIP Action would necessarily
undermine the legal justification for this rule, because the SSM SIP
Action litigation could be decided on procedural or substantive grounds
that would not be determinative for this action. For example, the
ongoing SSM SIP Action litigation involves many issues that are
unrelated to this current rulemaking.\21\
---------------------------------------------------------------------------
\20\ Specifically, the EPA's approach to addressing malfunction
emissions in section 112 rules for major boilers and area boilers
and section 111 and 129 rules for commercial and industrial solid
waste incinerators was upheld by the D.C. Circuit in U.S. Sugar.
\21\ For example, briefs filed in the SSM SIP Action litigation
allege, among other things, that the EPA failed to make the showing
required to issue a SIP call, which is a procedure specific to CAA
section 110. See Brief of Industry Petitioners, SSM SIP Action
Litigation (filed March 16, 2016).
---------------------------------------------------------------------------
2. Consideration of Prior Case Law
Comment: Multiple state and industry commenters discussed court
decisions involving SSM issues and affirmative defenses predating the
NRDC cases. These commenters generally asserted that the EPA relied too
heavily on the NRDC case in justifying the current action, and that the
EPA failed to address the importance of prior case law and the
relationship between these prior cases and the NRDC case.
Many of these commenters cited to the Fifth Circuit's Luminant \22\
decision, where commenters asserted the court determined that
affirmative defense provisions do not interfere with a court's
jurisdiction to assess civil penalties or enforce the CAA, contrary to
the D.C. Circuit's decision in NRDC. One commenter, acknowledging the
differing outcomes of the Luminant and NRDC cases, asked the EPA to
discuss this dissonance and claimed that the EPA should have sought en
banc review of the NRDC decision before the full D.C. Circuit, or
alternatively sought review by the Supreme Court. Another commenter
suggested that the EPA should delay finalizing this rule because of the
confusion in the courts resulting from the differing NRDC and Luminant
decisions. Some commenters claimed that the Luminant case is more
directly relevant to the current action than the NRDC case. One
commenter asserted that the Luminant case would be controlling over the
NRDC case in states within the Fifth Circuit's jurisdiction, including
Texas. Some commenters noted that the NRDC case explicitly
distinguished its holding from that of Luminant and avoided confronting
the SIP issues discussed in Luminant. Similarly, some commenters cited
the Eleventh Circuit's Georgia Power \23\ case, which also involved
affirmative defense provisions contained within a SIP. Some commenters
also cited two cases where circuit courts upheld the EPA's ability to
use affirmative defense provisions in Federal Implementation Plans
(FIPs), including the Ninth Circuit's Montana Sulphur \24\ decision and
the Tenth Circuit's Arizona Public
[[Page 47037]]
Service \25\ case. Other commenters cited to prior cases decided in the
context of Clean Water Act regulations, including Marathon Oil \26\ and
Essex Chemical,\27\ and claimed that these cases support the creation
of mechanisms like affirmative defenses to account for the
unforeseeable and uncontrollable failure of even the best technology.
---------------------------------------------------------------------------
\22\ Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir.
2013).
\23\ Sierra Club v. Georgia Power, 443 F.3d 1346, 1357 (11th
Cir. 2006).
\24\ Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 (9th
Cir. 2012).
\25\ Arizona Public Service v. EPA, 562 F.3d 1116 (10th Cir.
2009).
\26\ Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977).
\27\ Essex Chemical Corp. v. Ruckelshaus, 486 F.2d 427 (D.C.
Cir. 1973).
---------------------------------------------------------------------------
Some commenters also addressed the D.C. Circuit's U.S. Sugar
decision. One commenter claimed generally that the case did not
undercut the EPA's basis for providing the title V emergency
affirmative defense. Other commenters, however, claimed that U.S. Sugar
reinforced the EPA's view that affirmative defense provisions that
constrain or interfere with a court's authority under CAA sections 113
and 304 are inimical to the Act.
Response: The EPA acknowledges that various circuit court cases
preceding the D.C. Circuit's NRDC decision, including the Fifth
Circuit's Luminant decision, upheld the agency's prior interpretation
of affirmative defense provisions in various contexts, including the
authority of the EPA to approve affirmative defense provisions
contained in SIPs and the authority of the EPA to create affirmative
defense provisions in FIPs. In these decisions, the courts deferred to
the EPA's prior interpretation of the CAA with respect to affirmative
defense provisions.\28\ While some courts found the EPA's former
interpretation permissible, those courts did not determine that the
EPA's former interpretation was the only or even the best permissible
interpretation. As previously noted, it is well within the EPA's legal
authority to now revise its interpretation to a different
interpretation of the CAA.\29\ Those prior decisions were based upon an
interpretation of the CAA that the agency no longer holds, and
therefore those prior decisions do not speak to the validity of the
EPA's current policy with respect to affirmative defenses. The EPA
further notes that the affirmative defense provisions at issue in the
other court decisions cited by the commenters, including affirmative
defenses in SIPs and FIPs, are not affected by this action.
---------------------------------------------------------------------------
\28\ For example, the Fifth Circuit in Luminant held that the
EPA's interpretation of the CAA at that time was a ``permissible
interpretation of section [113], warranting deference.'' 714 F.3d at
853.
\29\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009); Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins.
Co., 463 U.S. 29, 42 (1983).
---------------------------------------------------------------------------
In NRDC, however, the D.C. Circuit conclusively determined that the
EPA's former interpretation of the CAA concerning affirmative defenses
was not permissible with respect to section 112 standards promulgated
by the EPA. The NRDC court vacated the affirmative defense provisions
in that case, finding them without legal basis because they
contradicted fundamental requirements of the Act concerning the
authority of courts to decide whether to assess civil penalties in CAA
enforcement suits. Because the NRDC decision interprets CAA sections
113 and 304 and addresses the legal basis for affirmative defense
provisions, the EPA has reevaluated its interpretation of the CAA with
respect to affirmative defense provisions in title V programs as well.
Based on this reevaluation and the reasoning of the NRDC decision, the
EPA has determined that it is appropriate to remove the emergency
affirmative defense provisions in 40 CFR 70.6(g) and 71.6(g), and to
require removal of similar affirmative defense provisions from state
operating permit programs and individual operating permits, because
these provisions are not authorized by the CAA.
Finally, the EPA notes that the D.C. Circuit's U.S. Sugar decision
further reinforced the principles underlying the NRDC decision. In U.S.
Sugar, the D.C. Circuit, acknowledging that the EPA could not create an
exemption or affirmative defense provision, deferred to the EPA's
decision to rely on case-by-case enforcement discretion as the
mechanism to handle excess emissions during malfunctions.\30\ Arguments
suggesting that prior cases, including Marathon Oil and Essex Chemical,
require the EPA to provide affirmative defenses in such situations are
contrary to the U.S. Sugar decision.
---------------------------------------------------------------------------
\30\ U.S. Sugar, 830 F.3d at 607-09.
---------------------------------------------------------------------------
3. EPA's Historical Policies Concerning Affirmative Defense Provisions
Comment: A number of commenters addressed the EPA's historical
policies concerning affirmative defenses,\31\ including the title V
emergency provisions and the policy considerations underlying this type
of mechanism to address emissions in unusual situations. Many
commenters discussed the EPA's initial decision to create the title V
affirmative defense in the 1992 part 70 rule and 1996 part 71 rule. One
commenter claimed that the EPA initially included the title V
provisions to do what was right, even if the EPA did not concede that
it was required. Commenters focused on the initial purpose of the
emergency provisions, asserting that the affirmative defense provisions
were a very limited, appropriate recognition that even properly
designed and maintained technology is not infallible and can fail due
to emergencies beyond the control of a source. Other commenters noted
the EPA's prior approach that acknowledged that enforcement and the
imposition of penalties might not be appropriate in certain situations
beyond the control of the source. Commenters asserted that the NRDC
decision does not undermine the policy reasons that initially informed
the promulgation of affirmative defense provisions, and that these same
policy reasons support the title V emergency affirmative defense
provisions.
---------------------------------------------------------------------------
\31\ Some commenters also discussed the EPA's historical policy
on exemptions prior to the Sierra Club case.
---------------------------------------------------------------------------
Commenters also claimed that the title V emergency provisions are
consistent with decades of EPA policy, citing various rulemakings and
guidance documents. Commenters also stated that these types of
affirmative defense provisions were recognized by states long before
the 1990 CAA Amendments and the title V operating permits program, and
that the title V affirmative defense provisions have existed for over
25 years. Commenters also pointed to other EPA actions justifying
affirmative defenses, including FIPs for Montana and New Mexico, EPA's
briefs prepared for litigation in the Luminant case, and EPA's
withdrawal of Texas' SIP Call. Commenters also noted that affirmative
defense provisions are still contained in other regulations promulgated
by the EPA, including NSPS and NESHAP standards.
Some commenters addressed the EPA's legal authority to change its
policy on affirmative defenses. Commenters asserted that agencies are
only permitted to change their existing interpretations when they offer
a reasoned explanation for the change, citing various Supreme Court
cases including Encino Motorcars, LLC v. Navarro \32\ and FCC v. Fox
Television Stations.\33\ These commenters alleged that the EPA's action
is arbitrary and capricious because the EPA has failed to provide an
adequate justification for the agency's revised policy with respect to
the title V affirmative defenses. However, other commenters
acknowledged that the EPA may change its interpretation so long as the
agency provides a reasoned explanation, and
[[Page 47038]]
agreed that the justifications provided by the EPA in the 2016 and 2022
proposed rules are sufficient.
---------------------------------------------------------------------------
\32\ 136 S. Ct. 2117 (2016).
\33\ 556 U.S. 502 (2009).
---------------------------------------------------------------------------
Finally, some commenters discussed the perceived inequity or
unfairness of the EPA's change in policy and removal of affirmative
defense provisions, based in part on the supposition that sources have
come to rely on these provisions. Specific comments addressing how the
removal of the title V affirmative defense provisions could impact
sources are discussed further in section III.D.2. of this document.
Response: The EPA acknowledges the underlying considerations
supporting the EPA's past policies--especially the agency's recognition
that even well-designed and appropriately operated equipment may
sometimes fail due to circumstances beyond the control of the source
(such as during emergencies) and that, in certain situations,
enforcement for violations of technology-based standards may not be
appropriate. This rule does not change that general recognition. As
discussed in section III.D.2. of this document, the EPA continues to
believe that enforcement may not be warranted under certain specific
circumstances, such as during an emergency, as determined on a case-by-
case basis by enforcement authorities. The EPA, states, citizens, and
the courts retain the discretion and authority to consider such
circumstances in evaluating how to respond to exceedances or
violations. However, an affirmative defense provision that interferes
with the authority of courts to assess penalties is no longer an
appropriate or legally sound mechanism to address these situations.
The EPA also acknowledges its past policies regarding different
mechanisms to account for excess emissions during periods of SSM and
emergencies. Based on these former policies, the EPA previously
established affirmative defense provisions in various other CAA program
areas, including within previously promulgated FIPs and various NSPS
and NESHAP regulations. However, since that time, decisions from the
D.C. Circuit, including Sierra Club and NRDC, have established
parameters under the CAA regarding legally permissible approaches for
addressing excess emissions during periods of SSM or emergency events.
In light of these decisions--particularly the 2014 NRDC decision--the
EPA has concluded that certain aspects of its prior interpretation of
the CAA were not legally permissible under the CAA. Thus, the EPA has
revised its interpretation of the CAA with respect to affirmative
defense provisions, and this revised interpretation provides the basis
for the current action (and similar actions in other CAA program
areas).
Following the 2016 proposal, the EPA continued to evaluate SSM
provisions, including affirmative defenses, in SIPs. In October 2020,
the EPA issued a guidance memorandum that, among other things,
expressly superseded a portion of the EPA's interpretation of
affirmative defenses presented in the 2015 SSM SIP Policy.\34\ However,
on September 30, 2021, the EPA issued a guidance memorandum that
withdrew the October 2020 memorandum in its entirety and reinstated the
legal and policy positions expressed in the 2015 SSM SIP Policy in
their entirety.\35\ Thus, the EPA's current interpretation of
affirmative defenses in the context of SIPs is the interpretation set
out in the 2015 SSM SIP Policy.
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\34\ Memorandum, Inclusion of Provisions Governing Periods of
Startup, Shutdown, and Malfunctions in State Implementation Plans, 6
(October 9, 2020), available at <a href="https://www.epa.gov/system/files/documents/2021-09/2020-ssm-in-sipsguidance-memo.pdf">https://www.epa.gov/system/files/documents/2021-09/2020-ssm-in-sipsguidance-memo.pdf</a>. In 2020, EPA
also took action relating to an SSM-related affirmative defense in a
SIP for Texas, withdrawing a SSM ``SIP call'' in part because the
SIP-based affirmative defense was deemed to not be inconsistent with
the CAA. See 85 FR 7232 (February 7, 2020); see also 85 FR 23700
(April 28, 2020) (SIP call withdrawal relating to North Carolina)
and 85 FR 73218 (November 17, 2020) (SIP call withdrawal relating to
Iowa). Petitions for review of these withdrawal actions were filed
in the United States Court of Appeals for the D.C. Circuit. See
Sierra Club v. EPA, No. 20-1115.
\35\ September 2021 SSM SIP Memo, supra note 5. This memorandum
also announced an intent to revisit, among other things, the 2020
action withdrawing the SSM affirmative defense-related SIP call for
Texas. Id. at 5. On December 17, 2021, the United States Court of
Appeals for the D.C. Circuit granted the EPA's request for a
voluntary remand of that 2020 Texas SIP call withdrawal action, as
well as the similar SIP call withdrawal actions relating to North
Carolina and Iowa, in light of EPA's stated intent to reconsider
those actions. Sierra Club v. EPA, No. 20-1115.
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The EPA's revised interpretation following the NRDC decision was,
and continues to be, well within the EPA's legal authority, and the EPA
has properly exercised its authority to revise its interpretation of
the CAA through the appropriate processes. The authority of an agency
to change its interpretation of a statute is well-established, provided
that it gives a reasoned explanation for the change.\36\ The EPA
disagrees with commenters that suggest that the EPA has not provided an
adequate rationale for this shift in policy, either generally with
respect to affirmative defenses or specifically with respect to the
title V emergency affirmative defense provisions. The EPA has clearly
articulated its revised interpretation of the CAA with respect to
affirmative defenses, here and in other documents, including the 2016
proposed rule (as referenced in the 2022 proposed rule), based on the
EPA's analysis of the NRDC decision.\37\ Commenters have not
substantiated their claim that the EPA's rationale is inadequate.
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\36\ See, e.g., Encino Motorcars, 136 S. Ct. at 2125-26; FCC v.
Fox Television Stations, Inc., 556 U.S. 502 (2009); see also Nat'l
Cable & Telecomms. Ass'n v. Brand X internet Servs., 545 U.S. 967,
981-82 (2005) (agency must adequately explain the reasons for a
reversal of policy).
\37\ The EPA has clearly explained its general shift in policy
with respect to affirmative defense provisions in other documents.
See, e.g., 81 FR 36849; SSM SIP Action Supplemental Proposal, 79 FR
55934; SSM SIP Action, 80 FR 33851.
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4. Consistency With Other CAA Program Areas
Comment: A number of commenters acknowledged and addressed the
EPA's desire to ensure consistent agency policy with respect to
affirmative defense provisions across different CAA program areas.
However, some commenters asserted that consistency between the EPA's
title V regulations and other CAA programs is not a rationale for
taking this action. Other commenters disagreed that the title V
provisions should be removed for consistency with actions like the 2015
SSM SIP Action, arguing that the two actions are distinguishable.
Finally, some commenters claimed that removal of the title V
affirmative defense would actually undermine the goal of consistency
across CAA program areas, because title V permits incorporate emission
limits developed under numerous CAA regulatory authorities, and because
various NSPS, NESHAP, and SIP regulations currently still contain
affirmative defense provisions.
One commenter also suggested that the EPA could resolve any
inconsistency between the title V affirmative defense provisions and
underlying standards that do not allow an affirmative defense by
clarifying through an interpretive rule or rule revision that
nationwide standards outweigh affirmative defense provisions under
title V.
Response: The EPA is not removing the title V emergency affirmative
defense provisions solely for the sake of consistency. Rather, as
discussed in the proposal and in section III.A. of this document, these
provisions present legal issues substantially similar to those that
called for the removal of affirmative defense provisions from other
regulations. In addition to the legal considerations supporting the
current action, and as previously explained in the preamble to the 2016
proposed rule (as referenced in the 2022 proposal), the EPA believes
that it is important to apply, as much as
[[Page 47039]]
reasonably possible, the EPA's policy concerning affirmative defense
provisions consistently across CAA program areas. As previously
explained, the EPA has removed affirmative defense provisions from
numerous other CAA standards since the 2014 NRDC decision.\38\ Based on
the relationship between title V and these underlying standards, it is
particularly important to remove the affirmative defense provisions
from the title V program regulations. Title V permits include a wide
range of substantive CAA requirements that apply to a source, including
SIP provisions and standards developed under CAA sections 111, 112, and
129. Because the title V affirmative defense provisions applied
independent of these underlying standards, the title V emergency
affirmative defense might be asserted in civil actions or other
proceedings involving noncompliance with title V permit terms
reflecting standards from which the EPA has recently eliminated
affirmative defenses. In this way, the continued presence of the title
V affirmative defense provisions could effectively undermine the EPA's
efforts to remove affirmative defenses from the underlying standards,
as well as the efforts of states to revise SIPs to comply with the 2015
SSM SIP Action. The EPA acknowledges that not all affirmative defense
provisions in the EPA's regulations have been removed as of the date of
this rule. However, the fact that this is an ongoing process does not
provide a basis for retaining or delaying removal of the title V
affirmative defense provisions.
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\38\ 87 FR 19042, 19044, n. 3 (citing recent EPA rulemakings
removing affirmative defense provisions).
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Moreover, the EPA does not believe that it would be appropriate to
simply clarify in some manner--whether by revising the emergency
affirmative defense rules or issuing guidance--that the title V
affirmative defense would not apply where the underlying standards do
not allow or provide for an affirmative defense. Although this approach
could potentially reduce inconsistency between title V provisions and
the underlying standards from which affirmative defenses have been
removed, it would nonetheless fail to address the more fundamental
problem that the title V affirmative defense provisions are, in and of
themselves, inconsistent with the enforcement structure of the CAA and
thus legally impermissible.
5. Relationship to Other CAA Standards
Comment: Commenters raised a number of concerns involving the
relationship between the title V emergency affirmative defense and
other CAA standards, including section 112 NESHAP, section 111 NSPS,
and SIPs. Comments specifically relating to SIPs are discussed in the
following subsection.
Commenters claimed generally that the EPA has failed to consider
how the CAA requirements related to enforcement must be harmonized with
the CAA requirements relating to standard setting and permitting. One
commenter claimed that the title V affirmative defense provisions avoid
the need to address emergencies in each individual underlying standard,
which the commenter characterized as an impractical approach. Another
commenter asserted that the title V affirmative defense provisions have
effectively become part of the underlying applicable standards, and
other commenters suggested that the title V affirmative defense
provisions are necessary to ensure that underlying technology-based
standards are achievable and adequately demonstrated, taking into
account costs. These commenters asserted that removing the affirmative
defense would have the effect of making the underlying standards in a
permit more stringent than those authorized by the governing standards,
in that sources would be subject to a level of control technology that
is technologically and economically infeasible. Other commenters
suggested that if affirmative defenses are removed, either title V
permits or underlying standards would need to provide some other way to
account for malfunctions, such as through alternative emission
limitations, work practice standards, or malfunction abatement plans.
Some commenters also claimed that the overlap between the title V
emergency provisions and various malfunction provisions in NSPS and
NESHAP regulations could cause confusion. However, other commenters
recognized that the removal of the title V affirmative defense
provisions should not have any impact on independent malfunction or
emergency provisions contained in underlying technology-based
standards.
Lastly, several environmental commenters asserted that EPA must go
further and quickly remove ``SSM loopholes'' from other CAA programs,
including section 111 NSPS, section 112 NESHAP, and SIPs.
Response: Many of the comments relating to malfunction emissions
and the development of technology-based standards are either not
directly related to the current rule to remove the title V emergency
affirmative defense provisions or reflect a misunderstanding about the
relationship between the title V affirmative defense provisions and
underlying standards included within operating permits. As an initial
matter, title V of the CAA does not generally impose new substantive
requirements on a source. Rather, title V permits provide a vehicle to
clarify in a single document the various CAA requirements applicable to
a source. Although title V permits must contain conditions (such as
monitoring, recordkeeping, and reporting provisions) necessary to
assure compliance with all CAA requirements already applicable to a
source, title V of the CAA does not provide the basis for making
substantive changes to underlying applicable standards.\39\ Therefore,
title V permits are not an appropriate mechanism for addressing
commenters' concerns related to the development of, for example,
alternative emission limits, work practice standards, or malfunction
abatement plans. These considerations may be more relevant in the
context of developing specific SIP provisions or section 111, 112 or
129 standards.\40\
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\39\ 40 CFR 70.1(b) (requiring all title V sources to have a
permit to operate that ``assures compliance by the source with all
applicable requirements'' and stating that ``title V does not impose
substantive new requirements,'' although it does require imposition
of fees and certain compliance measures).
\40\ The D.C. Circuit's U.S. Sugar decision addressed arguments,
raised in the context of challenges to NESHAPs issued under CAA
section 112 that did not provide for an affirmative defense for
unavoidable malfunctions, that such malfunctions must be accounted
for either by an affirmative defense or by appropriate adjustments
in the standard-setting itself. The D.C. Circuit upheld the EPA's
decision to neither include an affirmative defense nor adjust the
underlying standard, as requested by Petitioners, to account for
malfunction periods. Instead, the court upheld the EPA's decision to
use enforcement discretion to address exceedances that occur during
malfunction periods.
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Moreover, the underlying standards, not the title V affirmative
defense provisions, establish the appropriate level of emission
controls, accounting for technological, economic, and other
considerations, as appropriate. The title V emergency affirmative
defense provisions are not, as some commenters suggested, part of the
underlying applicable requirements themselves. The title V affirmative
defense provisions operated independently from the specific standards
and/or emission limits, as well as any emergency, malfunction, or upset
provisions contained within underlying applicable
[[Page 47040]]
requirements. Although the title V provisions provided for an
affirmative defense in emergencies, removal of the affirmative defenses
would not make underlying technology-based standards more stringent or
otherwise have any effect on standards applicable to a source. The
title V provisions merely provided an affirmative defense that a
source, after having allegedly violated a technology-based emission
limitation contained in its title V permit, could assert in an
enforcement proceeding brought for alleged violations of the title V
permit term reflecting the requirements of the underlying standard.
Because the title V affirmative defense did not provide an exemption to
any standard or define when a violation of a standard has occurred, a
source's compliance status with the underlying standard itself--as well
as the source's compliance status with the title V permit term--would
not be affected by the presence or absence of an affirmative defense.
Finally, comments discussing the purported need to provide for or
address excess emissions associated with malfunctions are immaterial
because this action addresses the title V affirmative defense
provisions for emergencies, which--although there may be some
similarities--are significantly different, and narrower, than
malfunction events. For further discussion, see section III.D.3. of
this document.
6. Relationship to the 2015 SSM SIP Action
Comment: Multiple commenters addressed the relationship between
this action and the 2015 SSM SIP Action. Some commenters asserted that
the EPA's current action is based on the 2015 SSM SIP Action, or
claimed that the two actions are related for various reasons. Other
commenters claimed that the 2015 SSM SIP Action is not at issue in this
rulemaking, disagreed with the EPA's statements that certain aspects of
the 2015 SSM SIP Action are especially relevant, and attempted to
distinguish the types of provisions at issue in the 2015 SSM SIP Action
from those at issue here.
Some commenters also specifically discussed the need for states to
develop SIP provisions that account for SSM situations (including work
practice standards) and claimed that states should not be prohibited
from including approved state SSM plans in title V permits. One
commenter suggested that removing the title V affirmative defense
provisions before SIP issues are resolved could prevent states from
incorporating all applicable requirements, including SIP requirements,
into title V permits, and another commenter asserted that this title V
rule should be withdrawn while states modify their rules to address the
2015 SSM SIP Action. On the other hand, other commenters suggested that
by promptly finalizing this title V rule, the EPA can better facilitate
the coordination of SSM SIP revisions with title V program revisions
and individual operating permit revisions.
Response: This current title V rule is related to the 2015 SSM SIP
Action to the extent that each rule is based at least in part on the
EPA's view that, in light of the NRDC decision, affirmative defense
provisions are contrary to the enforcement structure of the CAA.\41\
However, this title V action is not ``based on'' the 2015 SSM SIP
Action, and the two actions are functionally independent rulemakings,
each operating within distinct areas of the CAA's regulatory structure.
Therefore, and for the reasons discussed in the preceding subsection
discussing the relationship between title V and other CAA standards,
this current action involving the title V affirmative defense
provisions will not have any effect on states' ability to develop
appropriate SIP provisions in response to the 2015 SSM SIP Action, and
it will not affect states' ability to ensure that title V permits
appropriately reflect all requirements applicable to a source,
including revised SIP provisions. In fact, as some commenters
indicated, it may be convenient for states to coordinate implementation
of any title V permit changes related to the 2015 SSM SIP Action with
permit changes related to this rulemaking. Issues regarding
implementation of this rule are discussed further in section IV. of
this document.
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\41\ This legal rationale is not affected by any differences
between affirmative defense provisions implicated by the 2015 SSM
SIP Action and those implicated by this action.
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7. Title V of the CAA
Comment: Some commenters noted that while title V of the CAA does
not establish or mandate affirmative defense provisions, neither does
title V of the CAA prohibit the EPA from establishing affirmative
defenses.
Response: The EPA acknowledges that title V of the CAA is silent
with respect to affirmative defense provisions; it neither provides for
such provisions nor explicitly prohibits them. However, the EPA
interprets other provisions of the CAA that apply to enforcement of the
title V operating permits program--including sections 113 and 304--to
effectively prohibit the creation of affirmative defense provisions, as
discussed in section III.A.1. of this document.
8. Constitutional Issues
Comment: Some commenters raised constitutional issues with the
removal of the title V emergency affirmative defense provisions.
Commenters argued that the imposition of penalties for any conduct that
is unavoidable violates basic constitutional protections guaranteed by
the Eighth Amendment and due process requirements. Commenters further
asserted that explicit affirmative defense provisions are necessary to
satisfy minimum constitutional standards, and that alternative
approaches, such as the exercise of enforcement discretion, are not
sufficient.
Response: The EPA disagrees with commenters with respect to these
constitutional arguments. The comments suggest that without the title V
affirmative defense, any penalty assessed for violation of a title V
permit term during an emergency would be per se ``excessive'' or
``arbitrary'' and that the existing CAA enforcement provisions would be
facially unconstitutional. The EPA disagrees. It should be reiterated,
first, that the title V emergency affirmative defense has never been a
required permit term and it has not universally been adopted by all
permitting authorities for all permits. Even where the defense may be
available, it is, by its own terms, very limited and narrowly
circumscribed. Commenters have provided no information indicating that
the defense has been asserted with any frequency or, indeed, at all. It
is difficult to see how the removal from the EPA's regulations of a
narrowly circumscribed, discretionary defense that apparently is
infrequently asserted could render the CAA unconstitutional.
Moreover, the CAA does not mandate that EPA automatically initiate
an enforcement action, let alone automatically assess a penalty, for a
violation of a CAA requirement. EPA has absolute discretion on whether
to initiate an enforcement action in any circumstance, including during
an emergency.\42\ If EPA chooses to initiate an enforcement action in a
circumstance involving a violation during an emergency, and chooses to
seek a penalty for that violation, the CAA establishes a maximum civil
penalty in
[[Page 47041]]
section 113(b) \43\ but then expressly provides in section 113(e) that
the EPA or the courts ``shall take into consideration various
criteria--including specifically, ``good faith efforts to comply,''
and, more generally, ``other factors as justice may require.'' Thus,
the CAA on its face does not mandate the imposition of any penalty
automatically, much less one that is per se excessive. The commenters
fail to provide any specific support for their claim that the statutory
penalty provisions of the CAA are facially unconstitutional, instead
making only generalized claims.
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\42\ Heckler v. Chaney, 470 U.S. 821 (1985) (holding that
decisions of agency not to undertake enforcement action are presumed
unreviewable).
\43\ The maximum statutory civil monetary penalty amounts are
adjusted annually for inflation in 40 CFR part 19.
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In addition, State Farm Mutual Auto Insurance Co. v. Campbell,\44\
a case cited by some commenters, provides no support for any claim that
removal of the title V affirmative defense would somehow be
unconstitutional. State Farm involved a claim that a jury award of $145
million in punitive damages was excessive and, accordingly, contrary to
the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. Reaffirming that the Fourteenth Amendment ``prohibits the
imposition of grossly excessive or arbitrary punishments,'' the Supreme
Court held that, under the particular circumstances of the case, the
punitive damages award was excessive and ``an irrational and arbitrary
deprivation of property.'' \45\ Here, no penalties have been assessed
at all, and State Farm provides no support for the conclusion that--
absent the title V emergency affirmative defenses--the CAA's
authorization, in accordance with various identified criteria, of
possible penalties is necessarily unconstitutional.\46\
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\44\ 538 U.S. 408 (2003).
\45\ Id. at 429.
\46\ Additionally, State Farm involved a claim under the
Fourteenth Amendment, which imposes limitations on the states, not
the federal government. This discussion assumes, for the sake of
argument, that the principles expressed in State Farm would also
apply to claims under the Due Process Clause of the Fifth Amendment.
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The EPA also disagrees with the claims that--absent the title V
affirmative defenses--the penalty provisions of the CAA would be
facially contrary to the Eighth Amendment. Again, if a party believes
that the penalties assessed in a particular enforcement action violate
the Eighth Amendment, it can raise that claim at the appropriate time.
As with the commenters' due process arguments, Congress has addressed
the potential for unfair--or unconstitutional--penalties by setting out
various criteria to be considered in determining civil penalties. The
penalty criteria in section 113(e) provide an opportunity to raise
concerns about imposition of penalties in the event of an emergency
similar to that afforded by the title V affirmative defenses, albeit
directed at the courts' discretion. The commenters do not explain why
they believe these explicit statutory factors do not provide sufficient
protection against the imposition of an allegedly unconstitutionally
excessive penalty.
D. Potential Impacts
This section discusses various issues involving the effects of
removing the title V emergency affirmative defense provisions, focusing
primarily on the impact on sources. Overall, the EPA does not believe
that removing the emergency affirmative defense provisions will
substantially affect the legal rights of title V sources or the
decisions sources make when confronted with emergency situations. It is
also important to reiterate that the EPA is basing the current action
on its interpretation of the CAA in light of relevant caselaw
indicating that these affirmative defense provisions must be removed
because they are inconsistent with the enforcement structure of the
CAA.
1. Scope and Use of Title V Affirmative Defense Provisions
Comment: Multiple state and industry commenters acknowledged the
limited scope of the title V affirmative defense provisions, which
apply only to emergency situations. Commenters also addressed the
relationship between emergencies and malfunctions. While some
commenters provided examples of situations that would constitute an
emergency but not a malfunction, other commenters asserted that the
terms ``emergency'' and ``malfunction'' are closely related in that
they both relate to unexpected and unforeseen events.
A number of commenters further acknowledged the limited historical
and potential use of the title V emergency affirmative defense
provisions. However, commenters suggested that the rule could have
greater impacts than might be apparent.
Environmental commenters, on the other hand, characterized large
SSM exceedances as routine and claimed that large polluters have used
affirmative defense provisions in many citizen enforcement actions.
Additionally, these commenters asserted that excess emissions are often
the result of operator errors, poor plant design, and a lack of
preventive maintenance. Thus, commenters claimed that sources using SSM
affirmative defense provisions have lacked an incentive to make
investments in accident prevention. Finally, these commenters claimed
that emissions during SSM and emergency events can be controlled.
Response: The EPA agrees with commenters that emphasized the
limited scope of the title V emergency affirmative defense provisions.
Unlike more general affirmative defense provisions addressing excess
emissions during equipment malfunctions (which some commenters appear
to address), the title V provisions being removed were specific to
situations that qualify as an ``emergency,'' defined as ``any situation
arising from sudden and reasonably unforeseeable events beyond the
control of the source, including acts of God, which situation requires
immediate corrective action to restore normal operation, and that
causes the source to exceed a technology-based emission limitation
under the permit, due to unavoidable increases in emissions
attributable to the emergency.'' 40 CFR 70.6(g)(1). Thus, while the
title V emergency affirmative defenses, like affirmative defenses for
malfunctions, relate to events that are beyond the control of a source,
the title V defenses would only have been available in a more extreme,
limited set of circumstances. While it is possible for some overlap in
malfunction and emergency situations to exist (e.g., certain emergency
events could potentially cause equipment malfunctions), the EPA
believes that the majority of exceedances during malfunction events
would not be attributable to ``emergencies'' as defined in the title V
affirmative defense provisions. In addition, the title V affirmative
defense provisions being removed contain various procedural
requirements that must be met to assert the defense. See 40 CFR
70.6(g)(3). Moreover, as some commenters acknowledged and based on the
best information available to the EPA, the title V emergency
affirmative defense provisions have rarely, if ever, been asserted in
enforcement proceedings. Comments contending that sources frequently or
routinely have asserted affirmative defenses appear to relate to SSM
affirmative defenses, rather than the narrower title V affirmative
defense for emergencies. It is unlikely that the criteria for the title
V emergency affirmative defense would have been met in such
circumstances, as the title V provisions could not be asserted for
(among other things) noncompliance caused by improperly designed
equipment, lack of preventative
[[Page 47042]]
maintenance, careless or improper operation, or operator error.
For these reasons, the EPA does not believe that the removal of the
narrowly drawn and apparently infrequently used title V emergency
affirmative defense provisions will have a significant impact on
sources. Further, as discussed in the following subsection, the EPA,
state authorities, and other entities likely would consider the
relevant circumstances--especially the relatively unusual, extreme, and
unavoidable circumstances that would have qualified under the narrow
definition of ``emergency''--in deciding whether to pursue enforcement
action or seek penalties, and sources remain free to argue to the
court, in the event of an enforcement action, that penalties should not
be assessed for these same reasons.
2. Alternatives to an Affirmative Defense: Discretion To Initiate
Enforcement and the Discretion of Decision Makers To Determine
Appropriate Remedies
Comment: Many commenters expressed concerns that removing the title
V emergency affirmative defense provisions would result in less
certainty or greater risk of liability to sources confronted with
emergency situations. One commenter asserted that even if the EPA is
not legally required to provide an affirmative defense in title V
permits, the EPA should, to the maximum extent consistent with law,
continue to provide and allow states to provide sources relief from the
threat of enforcement for exceedances caused by emergencies. Another
commenter claimed more generally that the EPA must find other ways to
assure sources that they will not be subject to penalties if they
operate to provide vital services in an emergency. Commenters generally
requested additional guidance from the EPA to provide more certainty to
sources in the absence of an explicitly codified affirmative defense.
Most commenters acknowledged the fact that even in the absence of
an affirmative defense, the EPA, state, and citizens all retain the
discretion to determine whether to bring an enforcement action, based
on the unique circumstances of each case. Thus, most commenters
acknowledged that not all exceedances of emission limits will
automatically result in enforcement actions. One commenter asserted
that the EPA routinely uses enforcement discretion to decide which
alleged violations to pursue, and that such decisions are often made on
the same principles codified in an affirmative defense. Other
commenters asserted that the EPA does not intend for true emergencies
to result in increased enforcement, and that the EPA's suggested
enforcement discretion approach avoids forcing every violation to
judicial resolution. Finally, one commenter asserted that the exercise
of enforcement discretion by state permitting authorities is
appropriate and consistent with CAA sections 113 and 304 and separation
of power principles.
However, a number of commenters challenged the sufficiency of
relying on enforcement discretion alone to handle excess emissions
caused by emergencies. Commenters noted that explicitly codified
affirmative defense provisions have the benefit of providing certainty
to permittees, promoting consistency to agency actions, and promoting
the creation and retention of records necessary to justify agency
actions. Commenters claimed that relying on enforcement discretion
alone would result in more uncertainty and jeopardy and less harmony
among different CAA programs, because enforcement discretion policies
may be unwritten and unavailable to the public. Other commenters noted,
citing the U.S. Sugar decision, that federal and state policies
regarding enforcement discretion do nothing to prevent citizens from
pursuing enforcement. Some commenters also asserted that an enforcement
discretion approach still leaves sources in the difficult position of
choosing between proper emergency response and compliance with emission
limits. Other commenters claimed that relying on enforcement discretion
puts all power in the hands of the EPA, without any checks and
balances, and asserted that this contradicts principles of cooperative
federalism and exceeds the authority intended in the passage of the
CAA.
Some commenters discussed how prior court decisions have treated
enforcement discretion. One commenter claimed that the D.C. Circuit in
U.S. Sugar acknowledged, but did not evaluate, the EPA's reliance on
enforcement discretion, and the commenter alleged that the court
appeared to have doubts that enforcement discretion alone is
sufficient. Another commenter claimed that the U.S. Sugar decision did
not validate the enforcement discretion approach beyond the context of
section 112 standards. Other commenters cited to the 1973 D.C. Circuit
opinion in Portland Cement Assn. v. Ruckelshaus \47\ in support of
their position that reliance on enforcement discretion is not a
sufficient response to addressing excess emissions from malfunctions,
and another commenter claimed that the 9th Circuit rejected the EPA's
use of enforcement discretion in the 1977 Marathon Oil \48\ Clean Water
Act case.
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\47\ 486 F.2d 375, 399 n.91 (D.C. Cir. 1973).
\48\ Marathon Oil Co v. EPA, 564 F.2d 1253, 1272-73 (9th Cir.
1977).
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Some commenters requested that the EPA provide additional guidance
to clarify the circumstances under which permitting authorities
(including the EPA) should exercise their discretion not to bring
enforcement actions. Many commenters encouraged the use of the criteria
contained in 40 CFR 70.6(g) in guiding permitting authorities' exercise
of enforcement discretion. Some commenters asserted that states should
be able to rely on those criteria when exercising their enforcement
discretion. Other commenters urged the EPA: to make clear that the EPA
would not expect to bring an enforcement action under circumstances
meeting those criteria; to make clear that the EPA would continue to
use its enforcement discretion in the case of emergency situations; and
to create a strong policy statement that the EPA does not support civil
penalties in situations meeting those criteria. Commenters, with one
quoting a passage from the EPA's brief in the U.S. Sugar case, urged
the EPA to more fully articulate certain standards for determining
whether the EPA would pursue enforcement in a given situation,
including consideration of the good faith efforts of a source to
minimize emissions, which types of preventative and corrective actions
would be considered, and the nature and extent of the root cause
analysis that should be employed by sources to ascertain and rectify
excess emissions. Another commenter claimed that it is appropriate for
permitting authorities to take into account circumstances involving how
a source mitigated damage to people and the environment in responding
to an emergency.
Relatedly, one commenter suggested that instead of removing the
affirmative defense provisions, the EPA should amend them to provide
that the affirmative defense may be allowed, if specified conditions
are met, at the discretion of the enforcement entity.
Commenters also acknowledged that even when an enforcement action
is commenced, the ultimate decision makers also have the discretion to
determine whether and to what extent penalties are appropriate in a
given situation. Environmental commenters asserted that both the EPA
and the NRDC court recognized that even
[[Page 47043]]
without an affirmative defense, sources are still free to argue to a
court that they should be subject to lesser (or no) civil penalties for
any number of reasons, including practical considerations or
emergencies. Another commenter noted that the D.C. Circuit in U.S.
Sugar confirmed that sources may still argue to a court that penalties
should not be assessed in a given situation, and that sources may
support these arguments with relevant facts, such as the source's
compliance history and good faith efforts to comply with emission
limits.
However, while some commenters acknowledged that the absence of an
affirmative defense would not automatically result in the imposition of
particular remedies, other commenters asserted that without an
affirmative defense, sources would lack a legal defense in enforcement
actions and would be liable for unforeseeable events outside of their
control. One commenter claimed that this would be unjust, and that
imposing an unjust system would foster disrespect for the law.
Finally, some commenters requested further guidance on how sources
could make similar defenses in enforcement proceedings. Commenters
requested that the EPA retain or narrow the definition of ``emergency''
in its regulations, as this definition could help guide a court's
review of circumstances that are unlikely to warrant punishment, and
could provide more certainty to sources.
Response: As discussed in detail in the 2016 proposal,\49\ the EPA
reiterates that the legal rights and obligations of individual sources
potentially subject to enforcement proceedings will not be
significantly affected by the removal of emergency affirmative defense
provisions from their title V permits. The absence of an affirmative
defense provision in a source's title V permit does not mean that all
exceedances of emission limitations in a title V permit, including
those resulting from an emergency, will automatically be subject to
enforcement or automatically be subject to imposition of penalties or
other remedies.
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\49\ See 81 FR 38653.
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First, any entity that may bring an action to enforce title V
permit provisions has enforcement discretion that they may exercise as
they deem appropriate in any given circumstance. For example, if the
excess emissions caused by an emergency occurred despite proper
operation of the facility, and despite the permittee taking all
reasonable steps to minimize such emissions, EPA or other relevant
entities may well decide that no enforcement action is warranted in a
specific case. In the event that an entity decides to bring an
enforcement action, it may, nonetheless, take into account the
emergency circumstances in deciding what remedies to seek.
The EPA appreciates that relying on enforcement discretion might
afford less certainty to sources than an affirmative defense provision.
However, as the EPA has explained, the latter approach is not legally
consistent with the enforcement structure of the CAA, which among other
things imposes a duty on the source to continually comply with emission
limits and standards. Moreover, the EPA believes the exercise of
enforcement discretion in lieu of a codified affirmative defense
provision is both appropriate and sufficient to carry out the mandates
established by Congress in the CAA in a fair and equitable fashion, a
position that the D.C. Circuit upheld in its U.S. Sugar decision.\50\
The EPA believes that it is unlikely that entities would initiate an
enforcement action for emissions exceedances resulting solely from a
true emergency situation that would have qualified under the narrow
definition and particular requirements of the title V emergency
affirmative defense provisions. The EPA also generally agrees with
commenters that the conditions contained in the title V emergency
provisions, including but not limited to the nature of the emergency
event and the source's efforts to take all reasonable steps to minimize
emissions during an emergency, would likely be important considerations
to take into account when deciding whether to pursue enforcement, among
all other relevant factors. Enforcement discretion decisions
necessarily involve case-specific considerations, which should not be
confined to the specific conditions contained in the title V emergency
affirmative defense provisions.\51\ Thus, the EPA will not, in the
course of this rulemaking, provide explicit criteria that the EPA,
states, or other entities should apply in determining whether to
commence an enforcement action. Nothing in this action precludes the
EPA from issuing such guidance in other appropriate proceedings or
formats if the agency should subsequently determine that to be
appropriate.
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\50\ In its U.S. Sugar decision, the D.C. Circuit upheld the
EPA's reliance on case-by-case enforcement discretion as a
permissible and reasonable substitute for affirmative defense
provisions in accounting for malfunctions within section 112
standards. U.S. Sugar, 830 F.3d at 607-09. The EPA believes that the
D.C. Circuit's statements in NRDC and U.S. Sugar are more reflective
of the court's current views concerning affirmative defenses and
enforcement discretion than the much earlier decisions cited by
commenters, including Portland Cement Assn. v. Ruckelshaus.
Arguments suggesting that prior cases, including Marathon Oil and
Essex Chemical, require the EPA to provide affirmative defenses in
such situations are contrary to the D.C. Circuit's holdings.
\51\ These considerations could potentially be much broader than
the title V emergency affirmative defense provisions, and encompass
situations where a source would never have been eligible for the
emergency affirmative defense.
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Second, even if an enforcement action is commenced for exceedances
caused by an emergency, the absence of an explicitly defined
affirmative defense provision does not affect a source's ability to
demonstrate to the court (or to the EPA in an administrative
enforcement action) that penalties or other kinds of relief are not
warranted. Under section 113(e), courts (and the EPA in an
administrative enforcement action) must consider various factors when
assessing monetary penalties, including the source's compliance
history, good faith efforts to comply for the duration of the
violation, and ``such other factors as justice may require.'' Thus,
with or without an explicit affirmative defense, a source retains the
ability to defend itself in an enforcement action and to oppose the
imposition of particular remedies or to seek the reduction or
elimination of monetary penalties, based on the specific facts and
circumstances of the emergency event. The D.C. Circuit has noted that
such justifications would be a ``good argument . . . to make to the
courts.'' \52\ Thus, overall, elimination of the title V emergency
affirmative defense provisions will not deprive sources of these
defenses in potential enforcement actions. Sources retain all of the
arguments they previously could have made. Congress vested the courts
with the authority to judge how best to weigh the evidence in an
enforcement action and to determine appropriate remedies. The EPA may
not, through the title V affirmative defenses, restrict a court's
ability to do so, and the EPA does not believe that it would be
appropriate, in this action, to provide guidance to the courts with
respect to what factors a court should or must consider.
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\52\ NRDC, 749 F.3d at 1064.
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For similar reasons, the EPA does not believe it would be
appropriate or necessary to retain the definition of ``emergency'' or
any of the other provisions formerly contained in 40 CFR 70.6(g) and
71.6(g) that were associated with the title V affirmative defense.
These additional provisions, which were created solely for the purpose
of supporting the title V affirmative defense and ensuring that it was
narrowly tailored, no longer serve
[[Page 47044]]
a purpose in the EPA's part 70 and part 71 regulations. For example,
the EPA does not believe that retaining a standalone definition of
``emergency'' without any context or application would be helpful to
relevant entities determining whether to initiate enforcement or to the
courts or an agency determining the appropriate remedies.
As explained in section III.A., affirmative defense provisions by
their nature limit or eliminate the authority of federal courts to
determine liability or to impose remedies through considerations that
differ from the explicit grants of authority in section 113(b) and
section 113(e). Therefore, these provisions are not appropriate under
the CAA, no matter what type of event they apply to, what criteria they
contain, or what forms of remedy they purport to limit or eliminate.
Thus, it would not be appropriate to amend the title V affirmative
defense provisions to provide that the affirmative defense may be
allowed if specified conditions are met, at the discretion of the
enforcement entity.
3. Impacts on the Decision Making and Planning of Sources Confronted
With Emergency Situations
Comment: Industry commenters raised concerns involving how the
removal of the title V affirmative defense provisions will affect how
sources plan for and react to emergency situations. Many of these
comments asserted that without an affirmative defense provision in
their title V permits, sources confronted with an emergency situation
would be forced to decide whether to (1) comply with operating permit
requirements or (2) deal with the emergency situation in a manner
protective of human safety or other public interests, at the risk of
being held liable for violating permit terms. Specifically, some
commenters asserted that facilities faced with the threat of liability
may be less willing to shut down systems in an emergency, creating the
risk of more catastrophic accidents. Other commenters suggested that
sources might shut down earlier than would normally be the case, which
could result in resource shortages that could impede emergency response
efforts or area recovery. Commenters asserted that the affirmative
defense provisions serve the important purpose of allowing sources the
flexibility to continue or resume operations to provide vital services
in times of emergency.
One industry commenter, citing discussion in the EPA's 2014 SSM SIP
Action Supplemental Proposal, asserted that removing the affirmative
defense provisions could result in an additional resource burden for
sources, who could be forced to invest in facility improvements in
order to protect the source from emergency situations.
Other commenters asserted similar arguments specifically concerning
electric grid reliability, asserting that sources would have to weigh
compliance obligations against the need to continue generating
electricity to avert grid reliability problems. Some commenters
generally claimed, without describing specific instances, that the
title V emergency affirmative defense provisions, in addition to other
available mechanisms for relief from penalties, have helped ensure
reliable electric grid operation in emergency situations. Several
commenters provided specific examples of these situations.
Commenters presented differing views of whether the definition of
``emergency'' in the title V affirmative defense provisions would
encompass reliability or electric system emergencies. One commenter
asserted that the definition of ``emergency'' should cover an extreme
situation involving critical reliability concerns because the EPA has
recognized that CAA rules need to account for the unique interconnected
and interdependent operations of power plants. However, another
commenter acknowledged that the definition may not be broad enough to
cover this situation, but suggested that the EPA recognize that
enforcement may be unwarranted not only for unit-specific emergencies,
but also for situations where facilities are called upon to support
reliability in the context of a larger electric system emergency.
Some commenters claimed that certain electric system operators
cannot force a source to continue generating electricity in order to
ensure system reliability if doing so would cause the source to violate
an environmental requirement, such as a permit condition. Thus, these
commenters expressed concern that without the title V affirmative
defense--characterized by the commenters as an ``exemption''--electric
system operators would not be able to force a source to generate
electricity in order to ensure system reliability. Other commenters
discussed emergency generation orders issued by the Department of
Energy (DOE) under section 202(c) of the Federal Power Act (FPA), 16
U.S.C. 824a(c), by which the DOE may require power plant owners to
operate and generate electricity in certain emergency situations. While
some commenters expressed concern that a source could face the risk of
significant penalties for emissions exceedances resulting from
complying with such an order, other commenters discussed an amendment
to the FPA that excuses sources from compliance with environmental
regulations when necessary to comply with DOE emergency orders. One
commenter concluded that this FPA provision should be viewed as
complementary to, rather than a substitute for, the title V emergency
defense, and another asserted that this legislation indicates
congressional support for an emergency defense when electric system
reliability is at issue.
Commenters urged the EPA to consult with other agencies with
expertise in reliability. Commenters also suggested that the EPA direct
federal and state enforcement offices to engage in close consultation
with relevant grid operators or reliability authorities prior to
initiating enforcement actions where exceedances were caused by a
demonstrated reliability need. Commenters also proposed that system
operators should be able to submit a reliability analysis in the record
of any enforcement proceeding and suggested that courts should not
independently assess previously established reliability-related
determinations.
Response: The EPA does not believe that the removal of the title V
emergency affirmative defense provisions will significantly affect the
decision making of sources confronted with emergency situations.
Sources confronted with an emergency situation will always have to
assess the risk of liability involved with courses of action that would
result in exceedances of emission limits contained in title V permits
as well as the underlying standards. The EPA does not believe that
removing the title V affirmative defense provisions will affect this
risk assessment. First, the title V emergency provisions did not
provide guaranteed protection from liability. They simply created an
affirmative defense that a source, having allegedly violated a
technology-based emissions limit, could assert in narrowly defined
circumstances after an enforcement action was initiated. Moreover,
permittees seeking to assert the defense bore the burden of
establishing that a number of required conditions were met.
Second, the incentives that exist for sources to behave in a
prudent manner during emergencies remain largely unchanged, even
without an explicit affirmative defense. As discussed in section
III.D.2. of this document, sources can still argue all available
[[Page 47045]]
defenses to an alleged violation and/or assert that penalties should
not be imposed, based on the particular circumstances. The ability to
assert relevant considerations in this manner is not limited to the
particular conditions associated with the title V emergency affirmative
defense provisions. The EPA agrees that the need to avert catastrophic
accidents, or to avert an electric reliability crisis, or any number of
other public interest-related considerations, could be especially
relevant to the decision whether to pursue enforcement or impose
penalties. The EPA cannot, however, restrict or define--through the
operation of an affirmative defense or otherwise--the evidence or
considerations that a court may take into account when determining
whether penalties should be assessed in a given situation.
Additionally, the EPA does not believe that removing the title V
emergency affirmative defense provisions will have a significant effect
on how sources plan for emergencies or invest in facility improvements
in order to prepare for emergencies. The EPA notes that the comments
received on this point, and the EPA's statements in the 2014 SSM
Supplemental Proposal cited by commenters, are more relevant to
preparing for excess emissions from equipment malfunctions than to
preparing for emergencies. Moreover, as discussed previously, removing
the affirmative defense provisions should not change the incentives
that sources have to prepare for emergencies. Prudent behavior with
respect to planning for emergency situations and minimizing emissions
during an emergency to the maximum extent possible would be just as
advantageous to a source seeking to reduce the possibility that
enforcement will be initiated (or seeking to establish that penalties
are not appropriate) as it would be to a source attempting to meet the
criteria of a codified affirmative defense provision. The EPA believes
that such prudent behavior is a matter of good business practice that
most, if not all, sources would normally pursue irrespective of an
affirmative defense.\53\
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\53\ Additionally, as discussed in section III.D.3., the title V
emergency affirmative defense provisions have rarely, if ever, been
asserted in enforcement proceedings. Thus, the EPA does not believe
that the removal of the narrowly drawn and apparently infrequently
used title V emergency affirmative defense provisions will have a
significant impact on sources.
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Regarding specific comments concerning electric grid reliability,
the EPA does not believe that the current action will have a measurable
impact on electric grid reliability, and the EPA does not believe that
it is necessary to consult with other agencies with expertise in
reliability with respect to the limited actions being taken in this
rule. As an initial matter, even if the EPA were to retain the existing
title V emergency affirmative defense, the availability of that defense
in different types of situations involving issues of grid reliability
is uncertain. The EPA generally agrees with the commenters suggesting
that most electric grid reliability situations would not have qualified
as emergencies eligible for the title V affirmative defense, based on
the narrow definition of ``emergency'' in the title V regulations being
removed through this action.\54\ However, again, nothing would prevent
the consideration of reliability-related circumstances in determining
whether to initiate enforcement or in deciding whether penalties are
appropriate.
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\54\ Again, the title V emergency provisions were only available
for ``sudden and reasonably unforeseeable events beyond the control
of the source'' requiring ``immediate corrective action to restore
normal operation, and that causes the source to exceed a technology-
based emission limitation under the permit, due to unavoidable
increases in emissions attributable to the emergency.'' 40 CFR
70.6(g)(1). This definition of ``emergency'' generally contemplated
emergencies directly affecting the operations of a single source. In
contrast, the need for one source to continue operating in response
to reliability concerns would generally not involve any sort of
emergency at that particular source, but rather would likely be
motivated by circumstances occurring at a different source. For
example, one source might be required to generate electricity to
make up for power that another source was unable to generate due to
an emergency at the other source.
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Additionally, contrary to the assertion of commenters, the removal
of the affirmative defense provisions should not affect the ability of
electric grid operators to request that sources generate electricity in
order to avert grid reliability problems. Some of these comments were
based on the mistaken premise that the title V affirmative defense
provisions functioned as an exemption to emission limits.\55\ Moreover,
as other commenters note, Congress has provided various forms of relief
in these situations, including the amendment to FPA section 202(c)
(exempting sources from compliance with environmental regulations when
necessary to comply with a DOE emergency order), as well as provisions
such as CAA section 110(f) (authorizing state governors to temporarily
suspend certain requirements where the President determines a national
or regional energy emergency exists). The EPA cannot here provide any
further guarantees in this regard in the form of an affirmative
defense, exemption, or other mechanism that would run contrary to the
CAA.
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\55\ A source faced with demands to continue generating
electricity would always have to decide whether doing so could cause
it to exceed emission limits in its title V operating permit; the
presence or absence of an affirmative defense that could later be
asserted in an enforcement proceeding does not change this fact. For
further discussion, see section III.B.1. of this document.
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4. Perceived Benefits of the Requirements Associated With the Title V
Affirmative Defense Provisions
Comment: Some commenters discussed perceived benefits of retaining
affirmative defense provisions as written, in addition to the increased
certainty and consistency that commenters believe the provisions
provided. One commenter claimed that the various demonstration and
reporting requirements in the title V emergency affirmative defense
provisions serve as incentives for sources to prevent and minimize
excess emissions during emergencies, an incentive that the commenter
claimed would be lost if the affirmative defense was removed.
Response: The components of the title V emergency affirmative
defense involving recordkeeping and reporting requirements and the
obligation for a source to properly operate its facility and take all
reasonable steps to minimize excess emissions (40 CFR 70.6(g)(3) and
71.6(g)(3)) were important to limit the scope of the defense and any
potential for abuse. However, the EPA does not agree that removing the
affirmative defense will eliminate the incentives for sources to
appropriately prepare for and respond to emergency situations, to
minimize excess emissions, to maintain proper records of such events,
or to notify relevant authorities in a timely manner. Because the CAA
requires continuous compliance with applicable emission limitations and
emission standards, sources should properly operate and take steps to
minimize excess emissions at all times. Sources still have an incentive
to do all of these things in the event of an emergency, because doing
so would continue to be in their best interests both for compliance
purposes and for purposes of defending against an enforcement action.
Again, the EPA believes that such prudent behavior is a matter of good
business practice that most, if not all, sources would normally pursue
irrespective of an affirmative defense.
5. Environmental and Public Health Impacts
Comment: A number of commenters discussed the potential air quality
and public health impacts of removing the title V affirmative defense
provision. Industry commenters asserted that
[[Page 47046]]
removing the affirmative defense provisions would not reduce emissions
or provide any air quality benefits. Moreover, industry and state
commenters claimed that the EPA has not made any demonstration that
emissions during emergencies endanger public health or safety or have
resulted in problems with attainment of the NAAQS. One commenter
claimed that EPA action to remove the title V affirmative defense
provisions would be arbitrary and capricious because the action would
impose regulatory burdens without any significant benefit, and because
the EPA failed to consider the costs and benefits of its proposed
action.
On the other hand, environmental commenters claimed that
affirmative defense provisions impermissibly allow large facilities to
emit massive amounts of pollution in violation of applicable emission
limits without consequence. These commenters provided extensive
discussion of the health impacts of different pollutants and cited to
numerical data and case studies involving the emissions of a number of
large industrial facilities. The commenters asserted that this is an
environmental justice issue, as these emissions impact surrounding
communities, which the commenters claimed are often low-income
communities or communities of color. Environmental commenters asserted
that the impacts of climate change may increase the incidence of
malfunctions due to extreme weather events.
Response: As previously explained, the EPA is removing the
affirmative defense provisions from the title V program regulations
because these provisions are inconsistent with the EPA's interpretation
of the enforcement structure of the CAA. The EPA is not basing this
current action on potential air quality benefits, or a weighing of
costs and benefits, associated with the removal of these provisions.
While the EPA acknowledges that there are benefits to reducing
emissions, including reducing impacts to communities with environmental
justice concerns, as previously explained, the purpose of this
rulemaking is to eliminate the affirmative defense provisions that EPA
finds to be inconsistent with the enforcement structure of the Clean
Air Act. This action also does not take into account the impact of
climate change on the incidence of malfunctions and, as previously
explained, emergencies, which--although there may be some
similarities--are significantly different, and narrower, than
malfunction events.
E. Response to Comments Outside the Scope of This Action
Comment: Several industry commenters requested that EPA should
consider removing hospital, medical, and infectious waste incinerators
(HMIWI) as a title V source category or consider reducing program
requirements applicable to HMIWIs. Separately, one commenter expressed
disagreement with the EPA's return to its 2015 SSM SIP Policy.
Response: These comments are not relevant to the current rulemaking
action and are outside the scope of this final rule.
IV. Implementation Considerations
This section provides guidance and addresses comments on various
aspects related to implementing this final rule. First, as indicated in
the 2016 and 2022 proposed rules, as a result of the EPA's removal of
40 CFR 70.6(g), state, local and tribal permitting authorities \56\
whose part 70 programs contain impermissible affirmative defense
provisions \57\ must submit program revisions to the EPA to remove such
impermissible provisions from their EPA-approved part 70 programs. The
part 70 program revision process should follow the procedures in 40 CFR
70.4(a) and (i), as specified in the guidance provided in the following
subsections. In summary, the EPA expects that states with part 70
programs containing impermissible affirmative defense provisions will
submit to the EPA either a program revision, or a request for an
extension of time, within 12 months of the effective date of this final
rule--i.e., by August 21, 2024. Other considerations associated with
program revisions are discussed further in section IV.A. of this
document.
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\56\ As noted previously, the term ``state'' is used generically
throughout this section to refer to all state, local, U.S.
territorial, and tribal permitting authorities that administer EPA-
approved part 70 (title V) programs. See 40 CFR 70.2 and 71.2.
\57\ As specified further in section IV.A.1. of this document,
the term ``impermissible affirmative defense provisions'' is
intended to refer to all affirmative defense provisions that, for
the same reasons necessitating the EPA's removal of CFR 70.6(g) and
71.6(g), are inconsistent with the enforcement structure of the CAA.
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States must also remove title V-based affirmative defense
provisions contained in individual operating permits. The EPA
encourages states to remove these provisions at their earliest
convenience. The EPA expects that any necessary permit changes should
occur in the ordinary course of business as states process periodic
permit renewals or other unrelated permit modifications. At the latest,
states must remove affirmative defense provisions from individual
permits during the next permit revision or periodic permit renewal for
the source that occurs following either (1) the effective date of this
rule (for permit terms based on 40 CFR 70.6(g) or 71.6(g)) or (2) the
EPA's approval of state program revisions (for permit terms based on an
affirmative defense provision in an EPA-approved title V program).
Additional considerations associated with permit revisions are
discussed further in section IV.B. of this document.
A. Program Revisions
This section clarifies the EPA's expectations for how the final
action to remove 40 CFR 70.6(g) will affect state programs and responds
to comments involving these considerations. Specifically, this section
describes the actions that some states will need to take in order to
submit program revisions to remove impermissible affirmative defense
provisions.
1. Necessity for State Program Revisions
As indicated in the 2016 and 2022 proposed rules, as a result of
the removal of 40 CFR 70.6(g), the EPA has determined that it is
necessary for states whose part 70 programs contain impermissible
affirmative defense provisions to submit program revisions to the EPA
to remove such provisions from their EPA-approved part 70 programs.\58\
This determination is based on the EPA's interpretation of the
enforcement structure of the CAA, as informed by the NRDC decision. The
EPA's rationale concerning affirmative defenses, presented in section
III.A. of this document, applies equally to affirmative defense
provisions within state part 70 operating permit programs, which the
EPA now considers to be impermissible. The term ``impermissible
affirmative defense provisions'' as used throughout this section is
intended to refer to all affirmative defense provisions that, for the
same reasons necessitating the EPA's removal of CFR 70.6(g) and
71.6(g), are inconsistent with the CAA. This includes, but is not
limited to, any provisions within EPA-approved part 70 programs that
are similar to, based on, or function in similar ways to the provisions
being removed from 40 CFR 70.6(g). For example, any title V provisions
that establish an affirmative defense that could be asserted in a civil
enforcement
[[Page 47047]]
action involving alleged noncompliance with any federally-enforceable
standards would be inconsistent with the enforcement structure of the
CAA. Such provisions are impermissible regardless of whether the
affirmative defense provisions are specific to emergency situations,
and regardless of other criteria contained within such provisions. Any
provisions in an EPA-approved part 70 program that establish an
exemption to emission limitations as described in this document will
similarly need to be removed. This action will not have any direct
effect on affirmative defense provisions established under other CAA
programs, such as the SIP or section 111, 112, or 129 programs.
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\58\ To the extent that this document refers to the need to
remove affirmative defense provisions from part 70 programs, the EPA
is referring to the need for states to submit program revisions to
the EPA to remove such provisions from states' EPA-approved part 70
(title V) operating permit programs.
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2. EPA's Authority To Require State Program Revisions
Comment: Multiple commenters objected to the EPA's indication that,
if the EPA finalized the removal of 70.6(g), it may be necessary for
states with similar affirmative defense provisions to remove those
provisions and submit program revisions.
A number of commenters discussed the legal authority by which the
EPA could require state program revisions. Environmental commenters
suggested that CAA section 502(b), read together with sections 502(d)
and (i) and with 40 CFR 70.4, plainly authorizes the EPA to revise the
minimum elements of operating permit program regulations when the
Administrator determines that revisions are necessary to meet the
requirements of the CAA. Other commenters argued that the EPA has no
legal basis for imposing its policy preference on states, and some
industry commenters claimed that nothing in the CAA authorizes the EPA
to withdraw its final approval of a state title V permit program
because the EPA prefers a particular improvement to what was already
approved, claiming that this would be contrary to Congressional intent
and the purpose of title V. One state commenter similarly claimed that
requiring program revisions would fundamentally shift the careful
balance between the state and the federal governments' regulatory
partnership. Some commenters also claimed that requiring states to make
title V program changes would constitute a challenge to the legality of
state programs and would require a finding that there is no situation
where the state program provisions can be applied in a way that is
consistent with the Act. One commenter characterized state program
revisions as an unfunded mandate, which the commenter asserted should
not be imposed on states without a clear and compelling need. One
commenter claimed that the EPA has impermissibly extended its
interpretation of the NRDC case to state operating permit programs.
State commenters discussed the authority of states to tailor the
details of their own title V program regulations and potential limits
on the EPA's authority to dictate the fine particulars of state
programs. One state commenter claimed that by removing the title V
emergency affirmative defense provisions, the EPA would substantially
raise the minimum elements required by the Act for state operating
permit programs, citing 40 CFR 70.1(a). Other state commenters claimed
that under title V, similar to CAA section 110 for SIPs, after the EPA
sets minimum program requirements, states must meet these minimum
requirements but have the authority and discretion to otherwise tailor
their program to their specific state requirements, such as by
providing for affirmative defenses. State commenters further asserted
that the EPA's implementing regulations do not require a state's
enforcement program to be set out in any particular manner, while
acknowledging that states must have adequate authority to carry out all
aspects of the program and submit a description of their enforcement
program to the EPA, citing 40 CFR 70.4(b)(3) and (5). One state
commenter noted that an acceptable enforcement program should include
the ability to account for emissions during distinct periods of
operation, including SSM.
Both state and industry commenters also highlighted the fact that
the title V emergency provisions have always been discretionary, not
required, elements of state programs. One commenter argued that because
the affirmative defense provisions were initially discretionary, it
should now be up to states to decide whether to retain them. The
commenter claimed that this is a logical extension of a state's
constitutional authority and that the EPA should not disturb state
authorities by disapproving existing state permit programs that contain
these provisions.
Response: The EPA agrees with those commenters who asserted that
the CAA authorizes the EPA to revise its part 70 implementing
regulations when necessary to conform to the CAA, including provisions
of the CAA that apply to the enforcement of title V permit
requirements. As the CAA and the EPA's implementing regulations are
periodically updated to address evolving legal, policy, technical, and
scientific information, so must state operating programs be updated.
State part 70 program revisions, while infrequent, are a natural and
necessary part of a complex regulatory program, and this process is
entirely consistent with the principles of cooperative federalism
established in title V of the CAA. As various commenters acknowledged,
the EPA has the authority to establish the minimum elements for state
title V programs. See CAA section 502. The EPA's part 70 regulations
implement this authority. When the EPA must remove an element from its
implementing regulations in order to maintain consistency with CAA
requirements, it follows that it would also generally be necessary to
revise EPA-approved state part 70 programs to meet the same minimum
legal requirements required by the CAA. The EPA acknowledges that
states may establish additional permitting requirements, but only to
the extent they are not inconsistent with the CAA. See CAA section
506(a). States do not have discretion to implement provisions that are
inconsistent with the enforcement structure of the CAA or the EPA's
part 70 regulations.
As some commenters acknowledged, the EPA's existing part 70
implementing regulations clearly establish a framework by which state
part 70 programs may need to occasionally be revised, including when
the part 70 regulations are revised or modified. See, e.g., 40 CFR
70.4(a) (if part 70 is revised and the Administrator determines that
changes to approved state programs are necessary, states must submit
program revisions); 70.4(i) (program revisions may be necessary when
relevant federal or state statutes or regulations are modified). The
EPA has the authority to approve or disapprove program revisions based
on the requirements of the part 70 regulations and the CAA. See 40 CFR
70.4(i)(1), (2). Thus, the EPA has authority to require state title V
program revisions.
To be clear, the final action being taken in this rule is the
removal of the affirmative defense provisions from the EPA's
regulations at 40 CFR 70.6(g) and 71.6(g). As a consequence of this
regulatory action, it will be necessary for states with part 70
programs containing impermissible affirmative defense provisions to
make conforming revisions to their part 70 programs. However, contrary
to the assertions of some commenters, the EPA is not, at this time,
disapproving or making any finding of deficiency or inadequacy with
respect to any particular state program (such as a finding under 40 CFR
70.10), although this type of determination may be appropriate at a
later time. This document clarifies the EPA's expectations for how the
program revision process will unfold, based on
[[Page 47048]]
the EPA's existing implementing regulations and the EPA's longstanding
experience in overseeing title V operating permit programs. The EPA
intends that this guidance will be useful to permitting authorities and
permit holders interested in understanding how removal of the
affirmative defense provisions from the EPA's regulations will affect
their programs and individual permits, respectively.
The EPA also reiterates, as multiple commenters acknowledged, that
the title V affirmative defense provisions have always been
discretionary elements of state permitting programs, and the EPA has
never required states to adopt these provisions. In fact, a number of
state part 70 programs do not appear to contain any such title V
affirmative defense provisions. However, contrary to one commenter's
assertion, the fact that these provisions were never required elements
of state programs does not mean that they now must be deemed
appropriate program elements or that states must be allowed to continue
implementing them.
Finally, as explained in section V.D. below, this action does not
contain an unfunded mandate of $100 million or more as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no new enforceable duty on any
state, local or tribal governments or the private sector. As a result
of this rule, some states with EPA-approved part 70 programs that
contain impermissible affirmative defense provisions will be required
to submit program revisions to the EPA, according to the framework
established by the EPA's existing regulations. To the extent that such
affected states allow local air districts or planning organizations to
implement portions of the state's obligation under the CAA, the
regulatory requirements of this action do not significantly or uniquely
affect small governments because those governments have already
undertaken the obligation to comply with the CAA.
3. Scope of Necessary Program Revisions
Comment: Commenters addressed various aspects of the scope of state
program revisions that would be necessary following the removal of 40
CFR 70.6(g). First, some commenters claimed that part 70 program
regulations that incorporate by reference 40 CFR 70.6(g) or any state
affirmative defense provisions effectively function the same as
regulations that expressly include an affirmative defense. Commenters
claimed that if these provisions were not removed from state programs,
they would create ambiguity and would undermine CAA enforcement.
Therefore, these commenters asserted that part 70 program regulations
that incorporate by reference any other affirmative defense provisions
must also be removed from state programs.
Next, multiple commenters expressed support for the view that
states may retain affirmative defense provisions that could be used for
alleged noncompliance with permit requirements arising solely from
state law. Some commenters asserted that the EPA has no authority to
limit the ability of states to provide this type of state-only
affirmative defense provision. Another commenter suggested that state-
only affirmative defense provisions should be available not only for
enforcement actions brought by state agencies, but also for enforcement
actions brought by citizens or the EPA. However, other commenters
indicated concern that sources could attempt to invoke state-only
affirmative defense provisions in enforcement proceedings involving
noncompliance with federal requirements, thereby undermining the
enforcement of the CAA. These commenters suggested that the EPA provide
guidance to clarify that if a state wishes to retain an affirmative
defense for noncompliance with state-only requirements, the state must
also include clarifying language in their regulations expressly
limiting the applicability of such remaining affirmative defense
provisions. Commenters also suggested that states identify these state-
only program provisions in their title V program revisions.
Additionally, some commenters asserted that states should be able
to circumscribe their own authority to enforce even federally
enforceable requirements. Commenters suggested that states should be
able to provide an affirmative defense to state-initiated enforcement
(such as for administrative penalty proceedings) or otherwise restrict
their ability to enforce alleged violations of federally-enforceable
applicable requirements.
Finally, some commenters disagreed with the EPA's suggestion that
states may retain portions of the emergency provisions, such as the
definition of ``emergency'' or certain reporting requirements, for
purposes of supporting other regulations that do not involve an
affirmative defense. The commenters expressed concern that the presence
of a definition of ``emergency'' or other recordkeeping, reporting, or
work practice requirements could be interpreted as providing for an
affirmative defense or otherwise excusing a source from compliance
during these periods. However, these commenters also asserted that the
EPA should encourage more readily accessible information about excess
emission events, in order to better inform surrounding communities of
air quality issues.
Response: As previously noted, all impermissible affirmative
defense provisions, as specified in section IV.A.1. of this document,
will need to be removed from EPA-approved part 70 programs. To
reiterate, this encompasses provisions that are similar to, based on,
or function in similar ways to the provisions in 40 CFR 70.6(g) that
the EPA is removing in this action, including all provisions that
effectively establish an affirmative defense that could be asserted in
an enforcement action involving alleged noncompliance with any
federally-enforceable standards. In light of comments received, the EPA
is also providing clarification on various other topics related to the
scope of necessary program revisions.
Regarding state part 70 provisions that incorporate other
affirmative defense provisions by reference, as a general matter, the
EPA agrees with commenters' assertions that incorporating a provision
by reference may have the same legal effect as explicitly including the
provision within a regulation. Thus, where a state part 70 program
incorporates by reference another independently applicable affirmative
defense that suffers the same infirmities as those provisions being
removed from 40 CFR 70.6(g) and 71.6(g), the state provision
incorporating the affirmative defense provision would generally need to
be removed.\59\
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\59\ It may be possible that some state programs could
incorporate 40 CFR 70.6(g) (or a similar state provision) by
reference in such a manner as to leave it free from doubt that the
incorporating provision would have no legal effect following the
removal of 40 CFR 70.6(g) from the EPA's regulations (or following
the removal of the state affirmative defense). However, the EPA
believes that removal of the incorporating provision would
nonetheless be the best practice to avoid the potential for
confusion.
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Concerning the comments supporting the option for states to retain
an affirmative defense as a ``state-only'' provision--which would apply
solely to rights and responsibilities created by state law and would
not apply to, interfere with, or otherwise affect any requirements or
remedies under the CAA or federally-enforceable regulations--the EPA
agrees that states have the discretion to develop such state-only
provisions, as allowed under
[[Page 47049]]
state law. However, any such provisions would only be available in
enforcement actions brought solely under state law, and they would not
be available in enforcement actions brought for alleged violations of
any federally-enforceable requirements in a source's title V permit.
This rulemaking would have no effect on, and does not preclude states
from retaining or creating, such regulations unrelated to the state's
EPA-approved part 70 program. State-only affirmative defense provisions
that are included within individual operating permits would need to be
clearly labeled to indicate their limited applicability. 40 CFR
70.6(b)(2).
However, notwithstanding the ability of states to create state-only
affirmative defense provisions within their state regulations, any
impermissible affirmative defense provisions contained within any EPA-
approved part 70 programs will nonetheless need to be removed from the
state's EPA-approved part 70 program. In such instances, the state
would need to transmit to the EPA a program revision submittal to
remove the affirmative defense provision from the body of regulations
that comprise the state's official EPA-approved part 70 program. The
EPA believes that the best practice for states would be to conduct a
rulemaking to remove the affirmative defense provision from the state's
current regulations (or to revise the state regulations to clarify the
limited applicability of a state-only affirmative defense) and/or a
legislative process to remove such provisions from a state statute, in
addition to submitting the part 70 program revision to the EPA to
formally remove the provision from the state's EPA-approved part 70
program. This would provide clarity for sources and the public and
avoid any inconsistency between the state's EPA-approved part 70
program and the state's current regulations and/or statutes.
Regarding comments suggesting that states should be able to limit
their own authority to enforce even federally enforceable requirements,
as noted in section III.D.2. of this document, permitting authorities
always retain the discretion to determine whether to initiate an
enforcement action based on the circumstances of a given case. To the
extent that a state develops an ``enforcement discretion''-type
provision that applied only in its own administrative enforcement
actions or only with respect to enforcement actions brought by the
state in state courts, such a provision may be appropriate under state
rules.\60\ However, among the minimum required elements of a title V
permit program is the requirement that, consistent with EPA
regulations, the permitting authority have adequate authority to assure
compliance with applicable standards, requirements, and regulations,
and to enforce permits, including the ability to recover civil
penalties for each violation. See CAA section 502(b)(5), 42 U.S.C.
7661a(b)(5). EPA regulations further provide that approved title V
programs must have appropriate enforcement authority, including the
authority to seek injunctive relief and to assess or recover civil
penalties for violations of any applicable requirement or permit
condition. See 40 CFR 70.11. Thus, to the extent that states wish to
describe certain aspects of their enforcement discretion policy within
their part 70 program regulations, this could only be permissible
provided that the provision does not effectively undermine or eliminate
the state's ability to enforce its title V program, even under the
circumstances previously covered by the affirmative defense. For
example, it would likely not be permissible for a state to establish
criteria that, when met, would effectively preclude the state from
enforcing, even in part, a federally-enforceable standard. Nor would it
be permissible for any such provision to limit the ability of the EPA
or citizens to enforce any federally-enforceable permit terms or to
interfere with the authority of the federal courts to determine whether
and to what extent certain remedies are appropriate in a given case.
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\60\ The EPA has previously discussed an analogous issue in the
context of SIPs. See SSM SIP Action, 80 FR 33855.
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Finally, although states may not retain title V provisions
establishing an affirmative defense to noncompliance with federal
requirements, the EPA reiterates its position that states may choose to
retain certain aspects of their existing program regulations--such as
the definition of ``emergency'' and associated reporting and
recordkeeping requirements--to support functions unrelated to an
affirmative defense, such as prompt reporting requirements. The EPA
disagrees with commenters' assertions that the presence of definitions
or reporting and recordkeeping requirements associated with emergencies
would necessarily imply that an affirmative defense exists or that
exceedances of emission limits during emergencies are excused. To the
contrary, and although the EPA is not retaining such provisions within
its own regulations, states may decide that some of these provisions
could potentially serve a useful function for state permitting
authorities considering whether to pursue enforcement, for sources
faced with the possibility of a state enforcement action, and for the
public.
4. Timing Associated With Program Revisions
Comment: Multiple state and industry commenters requested that the
EPA allow states additional time to submit any required part 70 program
revisions. These commenters all asserted that 12 months is not
sufficient time to conduct the administrative processes required to
change part 70 program regulations, and suggested that anywhere between
18 and 36 months should be allowed, for various reasons. Some state
commenters provided specific examples of the administrative actions
associated with rulemakings that would necessitate additional time,
including outreach, public hearings and comment periods, rule
development, gubernatorial approval, legislative committee review, and
legislative approval. One state commenter noted that many states face
program and staff resource constraints based on other rulemaking
obligations. Another state commenter predicted that necessary rule
changes may take longer to promulgate because they will be
controversial. Some commenters recommended providing additional time
for state program revisions because these affirmative defense
provisions are not currently causing any pressing problems with
enforcement and there is no urgent need to change the provisions.
Finally, one commenter suggested that additional time for state program
revisions would be necessary to allow time for sources to implement
measures to address the loss of the affirmative defense.
Other commenters, on the other hand, recommended a more limited
time frame, while acknowledging the discretion that the EPA has under
40 CFR 70.4(a) to extend program revision deadlines. These commenters
supported the EPA's default 12-month submission deadline with the
possibility of an extended deadline of up to 24 months, on the grounds
that states should be able to easily amend their operating permit rules
within months, and that prompt action would facilitate the coordination
of SIP revisions and title V revisions (and associated permit
revisions). Environmental commenters urged the EPA to require states
seeking an extension to specifically request additional time and to
demonstrate good cause for the extension, and urged that
[[Page 47050]]
such requests be granted only under compelling circumstances. These
commenters also suggested additional details concerning the required
form, content, and timing of such an extension request.
Response: As discussed in the proposal, the necessary changes to
part 70 programs arising from this rule should generally be relatively
minor and straightforward, involving the removal of affirmative defense
provisions from the state's part 70 program.\61\ Because of the nature
of the required revisions, the EPA continues to believe that most or
many states should be able to complete the necessary program revisions
within 12 months. However, the EPA again appreciates that some states
may require more time to complete program revisions, based on a number
of different factors associated with their administrative process,
including the potential need for legislative approval. Therefore, the
EPA is allowing states to submit a request to the appropriate EPA
Regional office requesting an extension to this 12-month deadline and
demonstrating why such an extension is necessary. Such extension
requests should include detailed information concerning the steps that
the state will take to revise its part 70 program, as well as the
specific timing associated with each of these steps. The EPA
understands that many states have lengthy rulemaking processes and
expects that requests for extension that include the information
identified here in sufficient detail would generally be approved.
Nonetheless, the EPA will consider each program revision submission and
extension request on a case-by-case basis. The EPA expects that each
state with a part 70 program containing impermissible affirmative
defense provisions will submit a program revision or request for an
extension of time to the EPA by August 21, 2024.
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\61\ As discussed in section IV.A.3. of this document, this
particular revision to remove affirmative defense provisions from a
state's EPA-approved part 70 program might not necessarily also
involve a notice-and-comment rulemaking to revise the state's
current administrative code, although the EPA believes this would be
a best practice to ensure clarity.
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5. Program Revision Submittal Details
Comment: Two state commenters discussed the details of any required
program revision submittals. One state suggested requiring the
following four components: (1) legal authorization to revise the state
rules and part 70 program; (2) redlined changes to state rules; (3)
timeline for planned removal of affirmative defense from each permit;
and (4) a plan to make these changes to individual permits. Another
state commenter requested additional clarity on what form of legal
authority demonstration would be required for program revision
submittals, and suggested that a rulemaking certification (certifying
that the rules have been reviewed by legal counsel and have been found
to be within the legal authority of the agency) would be sufficient and
less burdensome than a formal opinion by the state Attorney General.
One state commenter further expressed concern with the additional
burden that would be associated with preparing and submitting a revised
program plan. Finally, one commenter requested clarification of the
EPA's intention to publish proposed program revisions in the Federal
Register and provide a 30-day public comment period. They requested
further clarification on whether the EPA intended to publish notice of
approval in the Federal Register or issue a letter to state governors
or their designees.
Response: As stated in the introduction to this section regarding
program revisions, the part 70 program revision process should follow
the procedures in 40 CFR 70.4(a) and (i). The EPA's part 70 regulations
provide that for state program revisions, the state should submit such
documents as the EPA determines to be necessary. See 40 CFR
70.4(i)(2)(i). As noted in the 2016 proposal, the EPA expects that
program revisions to remove the title V emergency defense provisions
will include, at minimum: (1) a redline document identifying the
state's proposed revision to its part 70 program rules; (2) a brief
statement of the legal authority authorizing the revision; and (3) a
schedule and description of the state's plans to remove affirmative
defense provisions from individual operating permits. The EPA
encourages states to consult with their respective EPA regional offices
on the specific contents of their revision submittal packages.
Regarding one commenter's statements concerning the legal authority
demonstration component, the EPA reiterates that this component could
take various forms depending on the specific circumstances of each
state, and a formal opinion by an Attorney General should not be
required for the narrow program revisions implicated by this particular
rule. For a revision involving only the removal of affirmative defense
provisions, a certification indicating that the revisions are within
the legal authority of the agency and followed all required
administrative (including public participation) requirements should be
sufficient. For other program revisions related to the removal of
affirmative defense provisions, such as the inclusion of a narrowly
tailored enforcement discretion provision, as discussed in section
IV.A.3. of this document, the legal authority demonstration should also
contain assurances that the state has adequate authority to enforce its
part 70 program.\62\
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\62\ For example, the state should demonstrate that any such
alternative provisions: do not interfere with the authority of
courts to determine whether and to what extent certain remedies are
appropriate in a given case; do not limit the ability of citizens or
the EPA to pursue enforcement; and do not limit the state's ability
to enforce its part 70 program, for example by establishing criteria
that, when met, would effectively preclude the state from assessing
or recovering penalties consistent with 40 CFR 70.11(a)(3).
---------------------------------------------------------------------------
It is unclear what the comments discussing a ``revised program
plan'' refer to. The EPA believes that the plan described in this
document, involving narrow program revision submittals to remove
affirmative defense provisions, is appropriate. As noted in the 2016
proposal, states may, but need not, also include as part of their
program revision submittals any other unrelated revisions to state
program regulations.
6. Consequences of Failure To Submit Program Revisions
Comment: Some commenters requested that the EPA clarify the
consequences for states that refuse to revise their operating permit
regulations. Specifically, commenters cited to CAA sections 502(d) and
(i) and discussed the possibility of notices of deficiency (NOD),
sanctions, and the eventual withdrawal of permitting authority.
Response: Commenters are correct that the EPA has the authority
under CAA sections 502(d) and (i), and as specified in the EPA's
implementing regulations at 40 CFR 70.10, to issue NODs, issue
sanctions, and potentially withdraw approval of part 70 programs under
appropriate circumstances, potentially including the failure of a
permitting authority to submit required program revisions to the EPA.
The EPA would exercise this authority on a case-by-case basis for this
element of the program, as it would with any other.
7. Discussion of State-Specific Program Provisions
Comment: In response to requests from the EPA for information about
part 70 programs that contain affirmative defense provisions, various
commenters discussed certain provisions in specifically identified
state part 70
[[Page 47051]]
programs that could be impacted by the final rule.\63\ Several
commenters also requested an update to the document titled ``Title V
Affirmative Defense Provisions in State, Local, and Tribal Part 70
Programs'' that was included in the docket during the 2016 rulemaking
process.
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\63\ In the proposed rule, the EPA solicited comment on a
document titled, ``Title V Affirmative Defense Provisions in State,
Local, and tribal Part 70 Programs'' that was included in in the
docket associated with this rulemaking (Docket ID No. EPA-HQ-OAR-
2016-0186). This document contains a tentative list of part 70
programs that appear to contain affirmative defense provisions that
could be affected by this action. The document was intended for
informational purposes only and does not reflect any type of
determination as to the adequacy or inadequacy of any specific
program provisions. The EPA received comments involving provisions
within the Texas and Georgia part 70 programs that purportedly
incorporate by reference affirmative defense provisions.
---------------------------------------------------------------------------
Response: The EPA appreciates this additional information. As noted
previously, the EPA is not taking any action in this final rule with
respect to the adequacy or inadequacy of individual state programs,
including specific programs identified in the 2016 document referenced
by commenters. The EPA expects that permitting authorities with part 70
programs that have impermissible affirmative defense provisions will
follow the process provided in section IV. of this document. EPA
Regional offices will work closely with permitting authorities to
provide support during this process. States with additional questions
about the impact of this rule on their operating permit programs should
contact the appropriate EPA Regional office for further assistance.
B. Permit Revisions
This section clarifies the EPA's expectations for the eventual
removal of impermissible affirmative defense provisions from individual
title V operating permits.
1. Scope of Permit Revisions
Comment: One commenter claimed that title V permits containing
affirmative defenses derived from sources of authority other than 40
CFR 70.6(g) would not need to be revised.
Response: In general, any impermissible affirmative defense
provisions within individual operating permits that are based on a
title V authority and that apply to federally-enforceable requirements
will need to be removed. For example, permit conditions that directly
rely on 40 CFR 70.6(g) or 71.6(g) would need to be removed following
the removal of these provisions from the EPA's regulations.
Importantly, however, permit revisions would not be limited to permit
conditions based on 40 CFR 70.6(g) and 71.6(g); any permit conditions
that rely on a similarly impermissible title V affirmative defense
provision contained in (or incorporated by reference into) a state's
part 70 program would also have to be removed following state program
revisions. On the other hand, and as the EPA explained in the 2016
proposal, this rule will not directly affect affirmative defense
provisions contained in title V permits that are derived from
independent applicable requirements, such as SIP, NSPS or NESHAP
provisions. Finally, should a state decide to retain a ``state-only''
affirmative defense or enforcement discretion-type provision, it may
need to eventually amend title V operating permits to explicitly state
the limited applicability of the state-only provision. See 40 CFR
70.6(b)(2). The discussion provided in the following subsections
applies to both the removal of affirmative defense provisions from
permits and to the amendment or modification of such permit terms.
2. Burden, Mechanism, and Timing of Permit Revisions
Comment: State commenters and one tribal commenter claimed that the
EPA underestimates the burden of removing affirmative defense
provisions from individual permits, and challenged the EPA's statement
in the proposal that ``removal of affirmative defense provisions from
permits should generally occur in the ordinary course of business and
should require essentially no additional burden on states and
sources.'' State commenters explained that thousands of existing
operating permits would require some form of revision action to be
processed by the state, and that revising certain general permits that
apply to multiple sources would require an administrative process
similar to a rulemaking.
Numerous state and industry commenters supported the EPA's
suggestion that states may utilize a number of existing permit
mechanisms to remove affirmative defense provisions from title V
permits in the ordinary course of business, such as when the permitting
authority next processes a permit renewal or significant permit
modification for a source. One state commenter noted that this would be
the most sensible and least disruptive and burdensome mechanism to
complete permit revisions.
Commenters agreed with the EPA's initial suggestion that the
removal of affirmative defense provisions from operating permits could
be accomplished through the minor permit revision process and would not
constitute a significant permit modification. Further, one state
suggested that the EPA adopt a policy interpretation that removal of
affirmative defense provisions could be accomplished through the
administrative amendment process.
Some commenters also asserted that permit revisions should not be
based on any other independent deadline or timeline, and that there is
no urgency to remove the provisions. Other commenters, though, urged
the EPA to encourage permitting authorities to exercise their
discretion to remove the provisions as expeditiously as possible, on
the earliest possible occasion.
Commenters also addressed the sequence of program revisions and
permit revisions. One commenter expressed concern that potential
ambiguity may arise if a source invokes an affirmative defense
provision found in the permit, after the program revisions have been
approved but the permit has not been amended. Lastly, one tribal
commenter expressed its concern that making conforming revisions to
permits before programmatic revisions would create inconsistencies that
could undermine enforcement.
Response: The EPA acknowledges commenters' general assertions that
a large number of existing title V permits across the nation will
eventually need to be revised to remove title V affirmative defense
provisions. However, the EPA disagrees that this will involve any
extraordinary burden on states or sources. The need to occasionally
revise individual title V permits is a natural, common, and required
feature of the title V operating permits program. Title V operating
permits, by their nature, include a wide variety of requirements
applicable to a source, and permit changes are periodically necessary
to incorporate new or modified applicable requirements, and to reflect
physical or operational changes that occur at a source. The EPA's
regulations, and all EPA-approved state part 70 programs, contain well-
established mechanisms to account for various types of necessary
revisions to title V permits. See, e.g., 40 CFR 70.7(d)-(h). The permit
revisions that will need to occur as a result of this rulemaking fit
well within this existing regulatory framework for occasional permit
revisions.
Moreover, the EPA expects permit changes to remove discretionary
title V affirmative defense provisions to be a potentially less
burdensome process than, for example, the process required to
incorporate new applicable
[[Page 47052]]
requirements in a permit via permit reopening. See, e.g., 40 CFR
70.7(f)(1)(i). As explained in the 2016 proposal, the EPA expects that
any necessary permit changes should occur in the ordinary course of
business. For example, these revisions could be made when a state
processes periodic permit renewals or other permit revisions.
Additionally, states may utilize other existing mechanisms to
effectuate these permit changes, consistent with each state's approved
part 70 program regulations. For example, the EPA does not believe that
a permit revision to simply remove a discretionary affirmative defense
provision would require significant modification procedures, and
permitting authorities may be able to process these changes as minor
modifications. Also, in certain circumstances, it may be possible for
some permit changes to be made using administrative permit amendment
procedures, provided that the removal of the title V emergency
provisions would satisfy one of the specific circumstances contemplated
within each state's approved part 70 program regulations governing
administrative amendments.\64\ States may also be able to utilize other
streamlined mechanisms for processing multiple permit revisions at
once.
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\64\ In addition to specifying various types of permit changes
for which the administrative amendment process would be appropriate,
the EPA's regulations in 40 CFR 70.7(d) also provide states with the
opportunity to specify additional criteria as part of their part 70
programs, if the EPA Administrator determines that those situations
are similar to those specified in 40 CFR 70.7(d).
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Regarding the timing of such permit changes, for state or tribal
permitting agencies implementing the federal title V program or part 70
programs that directly rely on 40 CFR 70.6(g), any permit revisions
necessary to remove impermissible affirmative defense provisions from
individual permits should occur promptly after the effective date of
this final rule. For states implementing part 70 programs that contain
state affirmative defense provisions, any permit revisions necessary to
remove impermissible affirmative defense provisions from individual
permits should similarly occur promptly after the EPA's approval of the
necessary part 70 program revisions.\65\ Generally, states would be
expected to remove title V affirmative defense provisions from permits
(or clearly label remaining provisions as state-only) at the earliest
possible occasion when each permit is next reviewed by the permitting
authority, such as the next permit renewal or unrelated permit
revision. Thus, at the latest, states would be expected to remove
affirmative defense provisions from individual permits by the next
periodic permit renewal that occurs following either (1) the effective
date of this rule (for permit terms based on 40 CFR 70.6(g) or 71.6(g))
or (2) the EPA's approval of state program revisions (for permit terms
based on a state affirmative defense provision).
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\65\ 81 FR 38645, 38653, n. 35 (June 14, 2016) (acknowledging
limits on state discretion where currently-approved state program
regulations require inclusion of emergency affirmative defense
provisions in state-issued title V permits).
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It is important to note that while the EPA is not currently
establishing any independent timeline for states to remove these
provisions from individual permits, the EPA encourages states to begin
removing these provisions from permits prior to the completion of any
necessary part 70 program revisions. States may also find it convenient
to remove these provisions in the course of completing revisions to
permits related to the implementation of the 2015 SSM SIP Action.
3. EPA Objections to Permits
Comment: Some commenters urged the EPA to make clear that the
agency will object to title V permits issued after the effective date
of the final rule that incorporate or refer to title V affirmative
defense provisions.
Response: As previously noted, the EPA expects that any necessary
permit revisions will generally occur following program revisions to
remove the underlying affirmative defense provisions from each
permitting authority's part 70 program regulations. Therefore, although
the EPA encourages states to remove title V emergency affirmative
defense provisions from operating permits at the earliest possible
opportunity (including during permit renewals that occur before program
revisions take place), the EPA generally does not anticipate objecting
to title V permits that contain emergency affirmative defense
provisions during the Agency's 45-day review period until after the
relevant permitting authority has made necessary corrections to its
approved part 70 program. The Administrator will evaluate any petitions
to object to proposed title V operating permits on a case-by-case
basis. Statements in this document are not intended to prejudge such
petition responses.
As noted in section IV.B.2. of this document, in those state or
tribal areas that implement the federal title V program (in 40 CFR part
71) or where the operating permit program directly relies on or
incorporates by reference 40 CFR 70.6(g), the EPA expects states to
begin the process of removing impermissible affirmative defense
provisions from operating permits promptly after the effective date of
this final rule, as such permit revisions would not need to await state
program revisions.
V. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control numbers 2060-0243 (for part 70 state operating permit programs)
and 2060-0336 (for part 71 federal operating permit program). In this
action, the EPA is removing certain provisions from the EPA's
regulations, which should ultimately result in the removal of similar
provisions from state, local, and tribal operating permit programs and
individual permits. Consequently, some states will be required to
submit program revisions to the EPA in order to remove affirmative
defense provisions from their EPA-approved part 70 programs, and will
eventually be required to remove provisions from individual permits.
However, this action does not involve any requests for information,
recordkeeping or reporting requirements, or other requirements that
would constitute an information collection under the PRA.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Entities
potentially affected directly by this proposal include state, local,
and tribal governments, and none of these governments would qualify as
a small entity. Other types of small entities, including stationary
sources of air pollution, are not directly subject to the requirements
of this action.
D. Unfunded Mandates Reform Act (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
[[Page 47053]]
uniquely affect small governments. The action imposes no new
enforceable duty on any state, local or tribal governments or the
private sector. As a result of this rule, some states with EPA-approved
part 70 programs that contain impermissible affirmative defense
provisions will be required to submit program revisions to the EPA,
according to the framework established by the EPA's existing
regulations. To the extent that such affected states allow local air
districts or planning organizations to implement portions of the
state's obligation under the CAA, the regulatory requirements of this
action do not significantly or uniquely affect small governments
because those governments have already undertaken the obligation to
comply with the CAA.
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 has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. One tribal government (the
Southern Ute Indian Tribe) currently administers an approved part 70
operating permit program, and one tribal government (the Navajo Nation)
currently administers a part 71 operating permit program pursuant to a
delegation agreement with the EPA. These tribal governments may be
required to take certain actions, including a program revision (for the
part 70 program) and eventual permit revisions, but these actions will
not require substantial compliance costs. The EPA conducted outreach
with tribal officials early in the process of developing this
regulation to permit them to have meaningful and timely input into its
development. A summary of that outreach is provided in the rulemaking
docket, Docket ID No. EPA-HQ-OAR-2016-0186, available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color) and low-income
populations.
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 people of
color, low-income populations and/or Indigenous peoples. This action
simply removes the emergency affirmative defense provisions from the
EPA's operating permit program regulations. As a result of this action,
it will also be necessary for some state, local, and tribal permitting
authorities to remove similar affirmative defense provisions from their
EPA-approved part 70 programs and from individual title V operating
permits. These title V provisions existed independently from any
specific environmental health standards, and their removal should not
affect the establishment of, or compliance with, environmental health
or safety standards. It is not practicable to predict whether the
removal of these affirmative defense provisions will result in any
significant difference in emissions and subsequently whether this
action will have any positive or negative effect on people of color,
low-income populations and/or Indigenous peoples. Information
supporting this Executive Order review is contained in section III.D.5.
of this document.
The EPA provided meaningful participation opportunities for people
of color, low-income populations and/or Indigenous peoples or tribes in
the development of the action through tribal outreach outlined in
section V.F. of this document and summarized in the rulemaking docket,
Docket ID No. EPA-HQ-OAR-2016-0186, as well as the standard opportunity
to provide public comment on each proposal (2016 and 2022).
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
VI. Statutory Authority
The statutory authority for this action is provided in CAA sections
502(b) and 502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), which direct the
Administrator of the EPA to promulgate regulations establishing state
operating permit programs and give the Administrator the authority to
establish a federal operating permit program. Additionally, the
Administrator determines that this action is subject to the provisions
of CAA section 307(d), which establish procedural requirements specific
to rulemaking under the CAA. CAA section 307(d)(1)(V) provides that the
provisions of CAA section 307(d) apply to ``such other actions as the
Administrator may determine.'' 42 U.S.C. 7607(d)(1)(V).
VII. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the United States Court of Appeals for the
District of Columbia Circuit: (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, but ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' For locally or regionally applicable final actions,
the CAA reserves to the EPA complete discretion whether to invoke the
exception in (ii).
This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). In the alternative, to
[[Page 47054]]
the extent a court finds this final action to be locally or regionally
applicable, the Administrator is exercising the complete discretion
afforded to him under the CAA to make and publish a finding that this
action is based on a determination of ``nationwide scope or effect''
within the meaning of CAA section 307(b)(1).\66\ This final action
revises both the regulatory requirements in 40 CFR part 70 that govern
state, local, tribal, and U.S. territorial operating permit programs
nationwide and the regulatory requirements in 40 CFR part 71 that
govern federal operating permits nationwide.\67\ Accordingly, this
final action is a nationally applicable regulation or, alternatively,
the Administrator is exercising the complete discretion afforded to him
by the CAA and hereby finds that this final action is based on a
determination of nationwide scope or effect for purposes of CAA section
307(b)(1) and is hereby publishing that finding in the Federal
Register.
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\66\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of Agency resources.
\67\ In the report on the 1977 Amendments that revised section
307(b)(1) of the CAA, Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
---------------------------------------------------------------------------
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the District of Columbia Circuit within 60 days from the date this
final action is published in the Federal Register. Filing a petition
for reconsideration by the Administrator of this final action does not
affect the finality of the action for the purposes of judicial review,
nor does it extend the time within which a petition for judicial review
must be filed, and shall not postpone the effectiveness of such rule or
action.
List of Subjects
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 71
Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 70--STATE OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Sec. 70.6 [Amended]
0
2. In Sec. 70.6, remove paragraph (g).
PART 71--FEDERAL OPERATING PERMIT PROGRAMS
0
3. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Sec. 71.6 [Amended]
0
4. In Sec. 71.6, remove paragraph (g).
[FR Doc. 2023-15067 Filed 7-20-23; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on July 21, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.