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Proposed Rule2024-13188

Removal of Affirmative Defense Provisions From Specified New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants

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Published

June 24, 2024

Issuing agencies

Environmental Protection Agency

Abstract

The EPA is proposing amendments to several New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) under the Clean Air Act (CAA). Specifically, the EPA is proposing to remove the affirmative defense provisions associated with violation of emission standards due to malfunctions. These provisions are being proposed for removal because the EPA finds that they are inconsistent with a D.C. Circuit Court decision that vacated affirmative defense provisions in one of the EPA's CAA regulations, and because the EPA finds that the reasoning in the decision applies equally to other CAA rules. Since the court decision, the EPA has been removing affirmative defense provisions from CAA rules when they were otherwise revised or amended. This action proposes to remove the remaining affirmative defense provisions more efficiently.

Full Text

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<title>Federal Register, Volume 89 Issue 121 (Monday, June 24, 2024)</title>
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[Federal Register Volume 89, Number 121 (Monday, June 24, 2024)]
[Proposed Rules]
[Pages 52425-52430]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13188]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 63

[EPA-HQ-OAR-2023-0509; FRL-11625-01-OAR]
RIN 2060-AW16

Removal of Affirmative Defense Provisions From Specified New
Source Performance Standards and National Emission Standards for
Hazardous Air Pollutants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing amendments to several New Source
Performance Standards (NSPS) and

[[Page 52426]]

National Emission Standards for Hazardous Air Pollutants (NESHAP) under
the Clean Air Act (CAA). Specifically, the EPA is proposing to remove
the affirmative defense provisions associated with violation of
emission standards due to malfunctions. These provisions are being
proposed for removal because the EPA finds that they are inconsistent
with a D.C. Circuit Court decision that vacated affirmative defense
provisions in one of the EPA's CAA regulations, and because the EPA
finds that the reasoning in the decision applies equally to other CAA
rules. Since the court decision, the EPA has been removing affirmative
defense provisions from CAA rules when they were otherwise revised or
amended. This action proposes to remove the remaining affirmative
defense provisions more efficiently.

DATES:
Comments. Comments must be received on or before August 8, 2024.
Public hearing. If anyone contacts us requesting a public hearing
on or before June 29, 2024, we will hold a virtual public hearing. See
SUPPLEMENTARY INFORMATION for information on requesting and registering
for a public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2023-0509, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#03622e626d672e712e676c60686677436673622d646c75">[email&#160;protected]</a>. Include Docket ID No. EPA-
HQ-OAR-2023-0509 in the subject line of the message.
<bullet> Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2023-0509.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2023-0509, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand/Courier Delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact U.S. EPA, Attn. Dr. Michelle Bergin, Sector Policies
and Programs Division (Mail Code D205-01), P.O. Box 12055, Office of
Air Quality Planning and Standards, U.S. Environmental Protection
Agency 109 T.W. Alexander Drive, P.O. Box 12055, RTP, North Carolina
27711; telephone number: (919) 541-2726; and email address:
<a href="/cdn-cgi/l/email-protection#197b7c6b7e70773774707a717c75757c597c6978377e766f">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. We use multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:

CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
EPA Environmental Protection Agency
NAICS North American Industry Classification System
NESHAP National Emission Standards for Hazardous Air Pollutants
NSPS New Source Performance Standards
SIP state implementation plan
SSM startup, shutdown, and malfunction

Participation in virtual public hearing. To request a virtual
public hearing, contact the public hearing team at (888) 372-8699 or by
email at <a href="/cdn-cgi/l/email-protection#affcffffebdfdacdc3c6ccc7caceddc6c1c8efcadfce81c8c0d9">[email&#160;protected]</a>. If requested, the hearing will be
held via virtual platform on July 9, 2024. The hearing will convene at
11:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. ET. The EPA
may close a session 15 minutes after the last pre-registered speaker
has testified if there are no additional speakers. The EPA will
announce further details at <a href="https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source">https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source</a>.
If a public hearing is requested, the EPA will begin pre-
registering speakers for the hearing no later than 1 business day after
a request has been received. To register to speak at the virtual
hearing, please use the online registration form available at <a href="https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source">https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source</a> or contact the public hearing
team at (888) 372-8699 or by email at <a href="/cdn-cgi/l/email-protection#f7a4a7a7b38782959b9e949f9296859e9990b7928796d9909881">[email&#160;protected]</a>. The
last day to pre-register to speak at the hearing will be July 6, 2024.
Prior to the hearing, the EPA will post a general agenda that will list
pre-registered speakers at: <a href="https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source">https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source</a>.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 4 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) by emailing it to
<a href="/cdn-cgi/l/email-protection#7d1f180f1a14135310141e15181111183d180d1c531a120b">[email&#160;protected]</a>. The EPA also recommends submitting the text of
your oral testimony as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at <a href="https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source">https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source</a>.
While the EPA expects the hearing to go forward as set forth above,
please monitor our website or contact the public hearing team at (888)
372-8699 or by email at <a href="/cdn-cgi/l/email-protection#89dad9d9cdf9fcebe5e0eae1ece8fbe0e7eec9ecf9e8a7eee6ff">[email&#160;protected]</a> to determine if there
are any updates. The EPA does not intend to publish a document in the
Federal Register announcing updates.
If you require the services of a translator or special
accommodation such as audio description, please pre-register for the
hearing with the public hearing team and describe your needs by July 1,
2024. The EPA may not be able to arrange accommodations without
advanced notice.
Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2023-0509. All documents in the docket are
listed in <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Although listed, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only as pdf
versions that can only be accessed on the EPA computers in the docket
office reading room. Certain data bases and physical items cannot be
downloaded from the docket but may be requested by contacting the
docket office at 202-566-1744. The docket office has up to 10 business
days

[[Page 52427]]

to respond to these requests. With the exception of such material,
publicly available docket materials are available electronically in
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2023-0509. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute. Do not submit electronically to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
any information that you consider to be CBI or other information whose
disclosure is restricted by statute. This type of information should be
submitted as discussed below.
The EPA may publish any comment received to its public docket.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
The <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website allows you to submit your
comment anonymously, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, the EPA recommends that you include your name and
other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should not include special characters or any form of encryption and be
free of any defects or viruses. For additional information about the
EPA's public docket, visit the EPA Docket Center homepage at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
Submitting CBI. Do not submit information containing CBI to the EPA
through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, note the docket ID,
mark the outside of the digital storage media as CBI, and identify
electronically within the digital storage media the specific
information that is claimed as CBI. In addition to one complete version
of the comments that includes information claimed as CBI, you must
submit a copy of the comments that does not contain the information
claimed as CBI directly to the public docket through the procedures
outlined in Instructions above. If you submit any digital storage media
that does not contain CBI, mark the outside of the digital storage
media clearly that it does not contain CBI and note the docket ID.
Information not marked as CBI will be included in the public docket and
the EPA's electronic public docket without prior notice. Information
marked as CBI will not be disclosed except in accordance with
procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office at the email address <a href="/cdn-cgi/l/email-protection#422d2333323121202b022732236c252d34">[email&#160;protected]</a>, and as
described above, should include clear CBI markings and note the docket
ID. If assistance is needed with submitting large electronic files that
exceed the file size limit for email attachments, and if you do not
have your own file sharing service, please email <a href="/cdn-cgi/l/email-protection#28474959585b4b4a41684d5849064f475e">[email&#160;protected]</a> to
request a file transfer link. If sending CBI information through the
postal service, please send it to the following address: OAQPS Document
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency,
P.O. Box 12055, 109 T.W. Alexander Drive, Research Triangle Park, North
Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2023-0509. The
mailed CBI material should be double wrapped and clearly marked. Any
CBI markings should not show through the outer envelope.
Organization of this document. The information in this preamble is
organized as follows:

I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Background
III. What action is the EPA proposing to remove Affirmative Defense?
IV. Summary of Cost, Environmental, and Economic Impacts
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, as
Amended by Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA) and
1 CFR Part 51
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All

I. General Information

A. Does this action apply to me?

This proposal addresses the industrial source sectors and includes,
but is not limited to, the associated North American Industry
Classification System (NAICS) codes subject to the rules shown in table
1 of this preamble. Table 1 is not intended to be exhaustive, but
rather provides a guide for readers regarding the entities that this
proposed action is likely to affect. If you have any questions
regarding the applicability of this action to a particular entity,
contact the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

[[Page 52428]]

Table 1--40 CFR Parts 60 and 63 Rules Proposed for Removal of Affirmative Defense
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Source sector Subpart NAICS codes \1\
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Clean Air Act section 111 (40 CFR part 60)
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Electric Utility Steam Generating Units (Boilers).... Da.......................... 221112, 921150.
Kraft Pulp Mills..................................... BBa......................... 3221.
Nitric Acid Plants................................... Ga.......................... 325311.
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Clean Air Act section 112 (40 CFR part 63)
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Chemical Manufacturing Area Sources.................. VVVVVV (6V)................. 325.
Chromium Electroplating.............................. N........................... 332813.
Coal- and Oil-Fired Electric Utility Steam Generating UUUUU (5U).................. 221112, 221122, 921150.
Units (MATS).
Marine Vessel Loading Operations..................... Y........................... 4883.
Pesticide Active Ingredient Production............... MMM......................... 325199, 325320.
Pharmaceuticals Production........................... GGG......................... 3254.
Polyether Polyols Production......................... PPP......................... 325199.
Polymers & Resins IV................................. JJJ......................... 325211.
Primary Lead Processing.............................. TTT......................... 331419.
Printing and Publishing Surface Coating.............. KK.......................... 32311.
Pulp and Paper Industry.............................. S........................... 322.
Secondary Lead Smelters.............................. X........................... 331492.
Shipbuilding and Ship Repair Surface Coating......... II.......................... 336611.
Steel Pickling....................................... CCC......................... 3311, 3312.
Wood Furniture Surface Coating....................... JJ.......................... 3371, 3372, 3379.
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\1\ North American Industry Classification System (NAICS).

B. Where can I get a copy of this document and other related
information?

In addition to being available in the docket, an electronic copy of
this action is available on the internet at <a href="https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source">https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source</a>. Following publication in the Federal
Register, the EPA will post the Federal Register version of the
proposal at this same website.
A memorandum showing the edits that would be necessary to
incorporate the changes proposed in this action is available in the
docket (Docket ID No. EPA-HQ-OAR-2023-0509). Following signature by the
EPA Administrator, the EPA also will post a copy of this memorandum to
<a href="https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source">https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source</a>.

II. Background

In 2008, the United States Court of Appeals for the District of
Columbia Circuit (the court) vacated portions of 2 provisions governing
the emissions of hazardous air pollutants during periods of startup,
shutdown, and malfunction (SSM) in the EPA's CAA section 112 General
Provisions regulations (40 CFR part 63, subpart A). Sierra Club v. EPA,
551 F.3d 1019 (D.C. Cir. 2008). The court held that under section
302(k) of the CAA, emissions standards or limitations must be
continuous in nature and that the SSM exemption violates the CAA's
requirement that CAA section 112 standards must apply at all times. To
address the court decision, the EPA began amending SSM provisions in
2010 with the Portland Cement Manufacturing NESHAP (75 FR 54970,
September 9, 2010). In that action, in response to comments urging the
EPA to not apply the same standards to malfunctions as to normal
operations, the EPA added an affirmative defense to civil penalties for
when the event that causes an exceedance of the emission limit meets
the narrow definition of malfunction.
As defined in each subpart addressed in this action (see table 1),
an affirmative defense means, ``. . . in the context of an enforcement
proceeding, a response or defense put forward by a defendant, regarding
which the defendant has the burden of proof, and the merits of which
are independently and objectively evaluated in a judicial or
administrative proceeding.'' This defense would most likely be applied
to malfunction events that result in non-compliance with any applicable
standards. Malfunctions in this context are a sudden, infrequent, and
not reasonably preventable failure of air pollution control and
monitoring equipment, process equipment, or a process to operate in a
normal or usual manner. See 40 CFR 63.2 and 40 CFR 60.2. Although the
EPA recognized that its case-by-case enforcement discretion provides
sufficient flexibility in these circumstances, it included the
affirmative defense in some rules to provide a more formalized approach
to malfunctions (e.g. 79 FR 1676, 1712). See also Weyerhaeuser Co. v.
Costle, 590 F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an
informal case-by-case enforcement discretion approach is adequate); but
see Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977)
(requiring a more formalized approach to consideration of ``upsets
beyond the control of the permit holder''). Under the EPA's regulatory
affirmative defense provisions, if a source could demonstrate in a
judicial or administrative proceeding that it had met the requirements
of the affirmative defense in the regulation, civil penalties would not
be assessed.
However, on April 18, 2014, the D.C. Circuit vacated the portion of
the EPA's CAA section 112 regulation pertaining to the affirmative
defense in the NESHAP for the portland cement manufacturing industry.
NRDC v. EPA, 749 F.3d 1055 (2014). The court found that the EPA lacked
authority to establish an affirmative defense for private civil suits
and held that CAA section 304(a) clearly vests the authority over
private suits exclusively with the courts, not the EPA. Id. at 1063.
In light of the NRDC decision, the EPA has been removing
affirmative defense provisions from CAA section 112 rules.\1\
Additionally, the EPA

[[Page 52429]]

determined that although the NRDC decision addressed a CAA section 112
rule, the court's rationale also applies to affirmative defense
provisions in CAA section 111 rules; accordingly, the EPA has also
removed affirmative defense provisions from those rules when they were
otherwise revised or amended.2 3 As indicated in these
actions, the EPA will continue to evaluate violations on a case-by-case
basis and determine whether an enforcement action is appropriate.
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\1\ For example, see affirmative defense removed in the
``National Emission Standards for Hazardous Air Pollutants for Major
Sources: Industrial, Commercial, and Institutional Boilers and
Process Heaters'' (80 FR 72789, Sept. 20, 2015) and in ``National
Emission Standards for Hazardous Air Pollutants for Area Sources:
Industrial, Commercial, and Institutional Boilers'' (81 FR 63112,
Sept. 14, 2016).
\2\ For example, see ``Oil and Natural Gas Sector:
Reconsideration of Additional Provisions of New Source Performance
Standards'' (79 FR 79017, Dec. 31, 2014) (affirmative defense
provision removed); and ``Standards of Performance for Greenhouse
Gas Emissions From New, Modified, and Reconstructed Stationary
Sources: Electric Utility Generating Units'' (80 FR 64509, Sept. 23,
2015) (declining to finalize proposed affirmative defense
provision).
\3\ In March 2024, the D.C. Circuit issued a decision in
Environmental Committee of the Florida Electric Power Coordinating
Group v. EPA, No. 15-1239. Petitioners challenged an EPA final
action relating to SSM provisions in state implementation plans
(SIPs), and the court's holding was premised on certain language in
CAA 110(a)(2)(A), which only applies to SIPs and not source sector
rules under CAA sections 111 and 112.
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If the EPA determines that bringing an enforcement action under CAA
section 113(d)(2)(B) against a source for a violation of an emission
standard is warranted, the source can raise any and all defenses in
response and the federal district court will determine what, if any,
relief is appropriate. The presiding officer in an administrative
proceeding can consider any defense raised and determine whether
administrative penalties are appropriate.\4\ Similarly, as the court
recognized, in a citizen enforcement action brought under CAA section
304(a), the reviewing court has the discretion to consider any defense
raised when determining whether penalties are appropriate. Cf. NRDC,
749 F.3d at 1064.
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\4\ Although the NRDC case does not address the EPA's authority
to establish an affirmative defense to penalties that are available
in administrative enforcement actions, we are not proposing such an
affirmative defense for the rules addressed by this action. As
explained, such an affirmative defense is not necessary. Moreover,
assessment of penalties for violations caused by malfunctions in
administrative proceedings and judicial proceedings should be
consistent. Cf. CAA section 113(e) (requiring both the Administrator
and the court to take specified criteria into account when assessing
penalties).
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Following the NRDC decision, on June 17, 2014, Sierra Club filed an
administrative petition requesting the EPA to remove the affirmative
defense provisions from a set of 29 rules.\5\ On July 14, 2014, Sierra
Club also filed a petition seeking judicial review of nine Federal
Register actions which included 17 source sector rules that contain
affirmative defense provisions promulgated by the EPA under the CAA in
2011 and 2012 (Case No. 14-1110 (D.C. Cir.)). In November 2014, the EPA
granted the administrative petition, stating that the EPA will continue
the ongoing process of removing affirmative defenses from the remaining
rules included in the petition as expeditiously as practicable.\6\
While the EPA has made significant progress in removing the affirmative
defense provision from individual rules as the rules are opened for
periodic review (including 3 from the administrative petition \7\),
this action furthers that progress more efficiently by proposing to
remove the affirmative defense provision from 18 rules, shown in Table
1. This proposal does not address 5 rules (4 from the petition) for
which removal of affirmative defense provisions has already been
proposed but not yet finalized.\8\ Finally, this action is not
proposing removal of affirmative defense provisions from any waste
incineration rules under CAA section 129, which will be addressed at a
later time.
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\5\ Petition to Revise Air Emission Regulations Containing
Affirmative Defense (Jun. 17, 2014). The twenty-nine rules addressed
in the 2014 administrative petition include: under New Source
Performance Standards (CAA section 111)--40 CFR part 60 Subpart Da:
Electric Utility Steam Generating-Units; Subpart Ga: Nitric Acid
Plants for Which Construction, Reconstruction, or Modification
Commenced After October 14, 2011; Subpart BBa: Kraft Pulp Mill
Affected Sources for Which Construction, Reconstruction, or
Modification Commenced After May 23, 2013; and Subpart OOOO: Crude
Oil and Natural Gas Production, Transmission and Distribution. Under
Solid waste combustion New Source Performance Standards & Emission
Guidelines (CAA section 129)--40 CFR part 60 Subpart CCCC:
Commercial and Industrial Solid Waste Incineration Units (new);
Subpart DDDD: Commercial and Industrial Solid Waste Incineration
Units (existing); Subpart LLLL: New Sewage Sludge Incineration
Units; and Subpart MMMM: Existing Sewage Sludge Incineration Units.
Under National Emission Standards for Hazardous Air Pollutants (CAA
section 112)--40 CFR part 63 Subpart N: Chromium Emissions from Hard
and Decorative Chromium Electroplating and Chromium Anodizing Tanks;
Subpart S: Pulp and Paper Industry; Subpart U: Group I Polymers and
Resins; Subpart X: Secondary Lead Smelting; Subpart Y: Marine Tank
Vessel Tank Loading Operations; Subpart HH: Oil and Natural Gas
Production Facilities; Subpart II: Shipbuilding and Ship Repair
(Surface Coating); Subpart JJ: Wood Furniture Manufacturing
Operations; Subpart KK: Printing and Publishing Industry; Subpart
CCC: Steel Pickling-HCl Process Facilities and Hydrochloric Acid
Regeneration Plants; Subpart GGG: Pharmaceuticals Production;
Subpart HHH: Natural Gas Transmission and Storage Facilities;
Subpart JJJ: Group IV Polymers and Resins; Subpart MMM: Pesticide
Active Ingredient Production; Subpart PPP: Polyether Polyols
Production; Subpart TTT: Primary Lead Smelting; Subpart DDDDD: Major
Sources: Industrial, Commercial, and Institutional Boilers and
Process Heaters; Subpart UUUUU: Coal- and Oil-Fired Electric Utility
Steam Generating Units; Subpart JJJJJJ: Industrial, Commercial, and
Institutional Boilers Area Sources; Subpart VVVVVV: Chemical
Manufacturing Area Sources; Subpart HHHHHHH: Polyvinyl Chloride and
Copolymers Production.
\6\ Letter from J. McCabe, Acting EPA Administrator, to S.
Johnson, Earthjustice (Nov. 19, 2014).
\7\ 40 CFR part 60 subpart OOOO (79 FR 79017, Dec. 31, 2014) and
40 CFR part 63 subparts DDDDD (80 FR 72789, Nov. 20, 2015) and
JJJJJJ (81 FR 63112, Sept. 14, 2016).
\8\ 40 CFR part 63 subparts U, HH, HHH, DDDDDD and HHHHHHH.
---------------------------------------------------------------------------

III. What action is the EPA proposing to remove Affirmative Defense?

The EPA is proposing to remove the definition of affirmative
defense and revise or remove and reserve regulatory sections that
contain affirmative defense provisions from the eighteen source sector
rules shown in table 1 of this preamble. These source sector rules are
each codified under either 40 CFR part 60 or part 63 (NSPS and NESHAP,
respectively). A memorandum showing the edits that would be necessary
to incorporate the changes proposed in this action is available in the
docket (Docket ID No. EPA-HQ-OAR-2023-0509). Following signature by the
EPA Administrator, the EPA also will post a copy of this memorandum to
<a href="https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source">https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source</a>. The EPA is
soliciting comment on if there are any rules not listed in table 1 of
this preamble that are under CAA sections 111 or 112 and have remaining
affirmative defense provisions that the EPA needs to consider for
removal. The EPA is also soliciting comment on if there are any
additional considerations related to removal of affirmative defense
provisions than addressed by this proposal. This document does not
address or reopen any provisions in these regulations other than
removal of provisions related to affirmative defense.

IV. Summary of Cost, Environmental, and Economic Impacts

There are no air quality or cost impacts associated with the
proposed amendments and, therefore, there are also no economic impacts.
The affirmative defense provisions did not affect the stringency of or
compliance requirements with affected standards in 40 CFR parts 60 and
63. The removal of the affirmative defense provisions does not have a
material impact on the obligation for sources to comply with their
respective standards, or on the ability of federal or state agencies to
enforce such standards. When the EPA originally promulgated the
affirmative

[[Page 52430]]

defense provisions in the rules addressed in this proposed action, the
EPA estimated a small administrative burden to report deviations from
standards as a result of malfunctions that included the option for an
owner or operator to offer an affirmative defense. The proposed removal
of the affirmative defense provisions does not affect that small
administrative burden because the EPA expects that sources will
continue to collect similar information in order to defend any
compliance actions against a source. In addition, as required by the
individual rules, sources will continue to report information regarding
malfunctions that result in a failure to meet the standards.

V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

A. Executive Order 12866: Regulatory Planning and Review, as Amended by
Executive Order 14094: Modernizing Regulatory Review

This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.

B. Paperwork Reduction Act (PRA)

This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations. The removal of
provisions for affirmative defense does not change any mandatory
recordkeeping, reporting, or other activity previously established
under prior final rules.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the EPA concludes that this rule will not
have any significant adverse economic impact on small entities because
the rule has no net burden on the small entities subject to the rule.
The removal of the affirmative defense provisions does not have a
material impact on the obligation for sources to comply with their
respective standards, or on the ability of federal or state agencies to
enforce such standards. When the EPA originally promulgated the
affirmative defense provisions in the rules addressed in this proposed
action, the EPA estimated a small administrative burden to report
deviations from standards as a result of malfunctions that included the
option for an owner or operator to offer an affirmative defense. The
proposed removal of the affirmative defense provisions does not affect
that small administrative burden because the EPA expects that sources
will continue to collect similar information in order to defend any
compliance actions against a source. We have therefore concluded that
this action will have no net regulatory burden for all directly
regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the federal government
and Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.

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

The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. Therefore, this action is not
subject to Executive Order 13045 because it does not concern an
environmental health risk or safety risk. Since this action does not
concern human health, the EPA's Policy on Children's Health also does
not apply.

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

This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51

This rulemaking does not involve technical standards.

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

The EPA believes that this action does not concern human health or
environmental conditions and therefore cannot be evaluated with respect
to potentially disproportionate and adverse effects on communities with
environmental justice concerns. This action does not change the
underlying standards that have an impact on human health and the
environment.

Michael S. Regan,
Administrator.
[FR Doc. 2024-13188 Filed 6-21-24; 8:45 am]
BILLING CODE 6560-50-P

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