Rule2024-24288
Removal of Affirmative Defense Provisions From the National Emission Standards for Hazardous Air Pollutants for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories
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
October 22, 2024
Effective
October 22, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The EPA is finalizing amendments to the National Emission Standards for Hazardous Air Pollutants for the oil and gas industry issued under the Clean Air Act (CAA). Specifically, the EPA is finalizing removal of the affirmative defense provisions in the National Emission Standards for Hazardous Air Pollutants for both the Oil and Natural Gas Production source category and the Natural Gas Transmission and Storage source category.
Full Text
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<title>Federal Register, Volume 89 Issue 204 (Tuesday, October 22, 2024)</title>
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[Federal Register Volume 89, Number 204 (Tuesday, October 22, 2024)]
[Rules and Regulations]
[Pages 84291-84296]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24288]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2023-0406; FRL-10652-02-OAR]
RIN 2060-AV97
Removal of Affirmative Defense Provisions From the National
Emission Standards for Hazardous Air Pollutants for the Oil and Natural
Gas Production Facility and Natural Gas Transmission and Storage
Facility Source Categories
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finalizing amendments to the National Emission
Standards for Hazardous Air Pollutants for the oil and gas industry
issued under the Clean Air Act (CAA). Specifically, the EPA is
finalizing removal of the affirmative defense provisions in the
National Emission Standards for Hazardous Air Pollutants for both the
Oil and Natural Gas Production source category and the Natural Gas
Transmission and Storage source category.
DATES: This final rule is effective October 22, 2024.
ADDRESSES: The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2023-0406. All documents in the docket are
listed on the <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website. 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 databases 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 to respond to these requests. With the exception of such material,
publicly available docket materials are available electronically at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Matthew Witosky, Sector Policies and
Programs Division (E143-05), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, 109 T.W. Alexander
Drive, P.O. Box 12055, Research Triangle Park, North Carolina, 27711;
telephone number: (919) 541-2865; email address:
<a href="/cdn-cgi/l/email-protection#0b7c627f6478607225666a7f7f636e7c4b6e7b6a256c647d"><span class="__cf_email__" data-cfemail="fe89978a918d9587d0939f8a8a969b89be9b8e9fd0999188">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: 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?
C. Judicial and Administrative Review
II. Final Rule Summary
III. Rationale for the Final Rule
IV. Response to Comments
V. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected sources?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What are the benefits?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
[[Page 84292]]
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)
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
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Categories and entities potentially regulated by this action are
shown in table 1 of this preamble.
Table 1--NESHAP and Industrial Source Categories Affected by This Final
Action
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Source category NAICS \1\ NAICS code
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Industry........................... 211111 Crude Petroleum and
Natural Gas
Extraction.
211112 Natural Gas Liquid
Extraction.
221210 Natural Gas
Distribution.
486110 Pipeline Distribution
of Crude Oil.
486210 Pipeline
Transportation of
Natural Gas.
Federal Government................. ........... Not affected.
State/Local/Tribal Government...... ........... Not affected.
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\1\ North American Industry Classification System (NAICS).
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. To determine whether your facility would be regulated by this
action, you should examine the applicability criteria in the
regulations. 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.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, at Docket ID No. EPA-
HQ-OAR-2023-0406 located at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, an electronic
copy of this final rulemaking is available on the internet at <a href="https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-operations">https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-operations</a>.
Following signature by the EPA Administrator, the EPA will post a copy
of this final rulemaking at this same website. Following publication in
the Federal Register, the EPA will post the Federal Register version of
the final rulemaking.
C. Judicial and Administrative Review
Under Clean Air Act (CAA) section 307(b)(1), judicial review of
this final rulemaking is available only by filing a petition for review
in the United States Court of Appeals for the District of Columbia
Circuit by December 23, 2024. Under CAA section 307(b)(2), the
requirements established by this final rulemaking may not be challenged
separately in any civil or criminal proceedings brought by the EPA to
enforce the requirements. Section 307(d)(7)(B) of the CAA further
provides that ``[o]nly an objection to a rule or procedure which was
raised with reasonable specificity during the period for public comment
(including any public hearing) may be raised during judicial review.''
This section also provides a mechanism for the EPA to convene a
proceeding for reconsideration, ``[i]f the person raising an objection
can demonstrate to the EPA that it was impracticable to raise such
objection within [the period for public comment] or if the grounds for
such objection arose after the period for public comment, (but within
the time specified for judicial review) and if such objection is of
central relevance to the outcome of the rule.''Any person seeking to
make such a demonstration to us should submit a Petition for
Reconsideration to the Office of the Administrator, U.S. Environmental
Protection Agency, Room 3000, WJC West Building, 1200 Pennsylvania Ave.
NW, Washington, DC 20460, with a copy to both the person(s) listed in
the preceding FOR FURTHER INFORMATION CONTACT section, and the
Associate General Counsel for the Air and Radiation Law Office, Office
of General Counsel (Mail Code 2344A), U.S. Environmental Protection
Agency, 1200 Pennsylvania.
II. Final Rule Summary
In a proposal published December 1, 2023 (88 FR 83889), the EPA
proposed to remove the provisions of an affirmative defense to civil
penalties in the National Emission Standards for Hazardous Air
Pollutants for the Oil and Natural Gas Production source category and
the Natural Gas Transmission and Storage source category, 40 CFR
63.762(d) and 63.1272(d) in 40 CFR part 63, subparts HH and HHH,
respectively. The EPA is finalizing removal of these affirmative
defense provisions as proposed.
III. Rationale for the Final Rule
In 1998, the EPA promulgated National Emission Standards for
Hazardous Air Pollutants for the Oil and Natural Gas Production
Facility and Natural Gas Transmission and Storage Facility Source
Categories, 40 CFR part 63, subparts HH and HHH (64 FR 32610; June 17,
1999) (``Oil and Gas NESHAP''). In 2012, the EPA amended the Oil and
Gas NESHAP (77 FR 49490; August 16, 2012). The 2012 amendments included
provisions allowing owners and operators to assert an affirmative
defense to civil penalties for violations caused by malfunctions. See
40 CFR 63.762 and 63.1672, Id. at 49569 and 49585. A malfunction is 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. As
defined in 40 CFR part 63, subparts HH and HHH, ``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.'' See
40 CFR 63.761 and 63.1271. The EPA established an affirmative defense
to civil penalties in 40 CFR part 63, subparts HH and HHH in an effort
to create a system that incorporates some flexibility, recognizing that
there is a
[[Page 84293]]
tension, inherent in many types of air regulation, to ensure adequate
compliance while simultaneously recognizing that despite the most
diligent of efforts, emission standards may be violated under
circumstances entirely beyond the control of the source (77 FR 49508).
Under these 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.
In 2014, the United States Court of Appeals for the District of
Columbia Circuit (the D.C. Circuit Court) vacated the affirmative
defense in one of the EPA's CAA section 112 regulations. NRDC v. EPA,
749 F.3d 1055 (D.C. Cir., 2014) (vacating affirmative defense
provisions in the CAA section 112 rule establishing emission standards
for portland cement kilns) (NRDC). Like the affirmative defense
provisions in the Oil and Gas NESHAP, the affirmative defense at issue
in NRDC similarly provided that civil penalties may be assessed only if
violators ``fail to meet [their] burden of proving all of the
requirements in the affirmative defense.'' 749 F.3d at 1062; see also
78 FR 10039, Sec. 63.1344. The D.C. Circuit Court found that the EPA
lacked authority to establish an affirmative defense for penalties in
private civil suits brought under CAA section 304(a) and held that the
authority to determine civil penalty amounts in such cases lies
exclusively with the courts, not the EPA. 749 F.3d at 1063.
Specifically, the D.C. Circuit Court found: ``As the language of the
statute makes clear, the courts determine, on a case-by-case basis,
whether civil penalties are `appropriate.' '' Id. (``[U]nder this
statute, deciding whether penalties are `appropriate' in a given
private civil suit is a job for the courts, not EPA.'').\1\
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\1\ The D.C. Circuit Court's reasoning in NRDC focuses on civil
judicial actions. The D.C. Circuit Court noted that ``EPA's ability
to determine whether penalties should be assessed for CAA violations
extends only to administrative penalties, not to civil penalties
imposed by a court.'' Id.
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In light of the NRDC decision, the EPA proposed and is now
finalizing removal of the affirmative defense provisions from the Oil
and Gas NESHAP which, like the rule at issue in the NRDC decision, is
also a CAA section 112 rule. These provisions imply legal authority
that the D.C. Circuit Court has stated that the EPA does not have.\2\
As the EPA explained in the proposed rule, if a source is unable to
comply with emissions standards as a result of a malfunction, the EPA
may use its case-by-case enforcement discretion to provide flexibility,
as appropriate (88 FR 83889, 83891). Further, as the D.C. Circuit Court
recognized, in a citizen enforcement action brought under CAA section
304(a), the courts have the discretion to consider any defense raised
and determine whether penalties are appropriate. NRDC, 749 F.3d at 1064
(arguments that a violation was caused by unavoidable technology
failure can be made to the courts in future civil cases when the issue
arises). The same is true for the presiding officer in EPA
administrative enforcement actions.\3\
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\2\ EPA notes that in 2012, concurrent with the review of 40 CFR
part 63, subparts HH and HHH, EPA promulgated New Source Performance
Standards for Crude Oil and Natural Gas Facilities, 40 CFR part 60,
subpart OOOO (``NSPS OOOO''), which also included an affirmative
defense. See 77 FR 49557. In a subsequent rulemaking following the
NRDC decision, the EPA removed the affirmative defense provision
from NSPS OOOO. 79 FR 79018 (Dec. 31, 2014).
\3\ 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 including such an
affirmative defense in this rule because for the same reasons
explained above, 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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IV. Response to Comments
EPA received one comment on the proposal. Below is a summary of the
comment and the EPA response thereto.
Comment: The commenter requests that the EPA retain the affirmative
defense provisions in the Oil and Gas NESHAP. The commenter first
argues that the decision in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir.
2014), which the EPA has identified as the basis of its proposed rule,
does not compel the EPA to remove the affirmative defense at issue
because the affirmative defense provision at issue in NRDC provided
defense against civil penalties after liability has been established;
the commenter claims that, in contrast, the affirmative defense in
subparts HH and HHH provides for defense against liability, not civil
penalties, and is therefore unaffected by the NRDC decision. The
commenter argues that, to the extent the EPA is asserting that there is
no distinction between an affirmative defense to liability and an
affirmative defense to penalties at issue in NRDC, such a position is
``ill-considered'' and ``wholly unsupported.''
The commenter next argues that, even if the EPA were to remove the
affirmative defense in these two NESHAP from judicial proceedings, the
EPA should retain it in administrative enforcement matters. In support,
the commenter first notes that the NRDC decision addressed only
judicial proceedings and therefore does not compel the EPA to remove
affirmative defense from administrative enforcement matters. Next, the
commenter disputes the EPA's assertion that ``such an affirmative
defense is not necessary,'' claiming that the defense ``provides an
essential measure of flexibility to sources facing real challenges with
malfunctions in their operations that are beyond their control.'' The
commenter expresses concern that ``without the specificity provided by
the regulation, the ability to raise these real-world practical
challenges is left to the unspecified `discretion' of EPA enforcement
officials or the presiding officer (an EPA employee) in an
administrative proceeding.'' The commenter claims the EPA recognized
such an approach as lacking a formalized approach and regulatory
clarity, citing the proposal preamble describing the EPA's position at
the time it established the affirmative defense at issue (88 FR 83891).
The commenter further claims that both the EPA and the courts have
``long understood that it is fundamentally unfair to penalize a source
for unavoidable emissions,'' citing Essex Chem. Corp. v. Ruckelshaus,
486 F.2d 427, 433 (D.C. Cir. 1973).\4\ The commenter argues that ``it
would be unjust to penalize a source for emissions that were beyond its
control as this neither serves the purposes of punishment nor
deterrence.'' The commenter claims that the proposed rule ``provides no
explanation as to why, after decades of finding an affirmative defense
for emergency-related emissions to be necessary, justice no longer
requires it.''
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\4\ The case involved challenges to various aspects of an EPA
regulation establishing new source performance standards for certain
stationary source categories, including ``equal'' standards during
normal operations and periods of startup, shutdown and malfunction.
Id. The D.C. Circuit Court remanded the rule record to the EPA on
the ``equal standard,'' noting that ``variant provisions appear
necessary to preserve the reasonableness of the standards as a whole
and that the record does not support the `never to be exceeded'
standard currently in force.'' Id.
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The commenter then notes the EPA's explanation in the proposed rule
that the ``assessment of penalties for violations caused by
malfunctions in administrative proceedings and judicial proceedings
should be consistent'' but asks that the EPA reconsider. The commenter
claims that the EPA's reasoning, which refers to CAA section
[[Page 84294]]
113(e) specifying ``penalty assessment criteria'' for both the EPA and
the courts to consider, as appropriate (88 FR 83891, footnote 3), is
``wrong and not sound policy.'' In support, the commenter reiterates
its argument that ``[f]oremost, as noted above, the affirmative
defenses at issue go to questions of liability, not civil penalties.
Thus, whether the penalty criteria in CAA section 113(e) are the same
or not is entirely beside the point in deciding whether an affirmative
defense to liability should be retained.'' The commenter further argues
that ``even if the affirmative defense here goes to the question of
penalties, there is no principle of `consistency' between judicial and
administrative proceedings.'' The commenter cites CAA section 113(d)
(``Administrative Assessment of Civile Penalties''), specifically
section 113(d)(2)(B) which ``affords the EPA entirely separate
authority to `compromise, modify, or remit, with or without conditions,
any administrative penalty,' '' as evidence that ``Congress did not
envision, let alone require, that judicial and administrative
proceedings `should be consistent.' '' The comment faults the proposed
rule for ``[giving] no consideration to the discretion provided under
section 113(d), in particular the authority 113(d)(2)(B).'' The
Commenter argues that ``by contrast, civil judicial proceedings are
bound by the common rules of civil judicial procedure.''
Lastly, the commenter argues that there ``is [not] any EPA
precedent to consider only factors listed in CAA section 113(e) when
determining administrative penalties, as that would contradict EPA's
current administrative penalty policies'' [Emphasis added]. The
commenter cites to several EPA decisions and policies that the
commenter claims did not rely on CAA section 113(e) criteria in
determining administrative penalties. According to the commenter, ``EPA
has used policies governing administrative penalties for decades
without any consideration of CAA section 113(e) and it continues to do
so today.'' The commenter argues that ``EPA's interpretation of how
section 113(e) limits its own authority appears to be arbitrarily
selective in this instance'' because ``the Proposed Rule does not
consider these contradictory practices and gives no indication that EPA
will now abandon these policies and guidance documents in
administrative proceedings.''
Response: For the reasons explained below, none of the commenter's
arguments justify retaining the affirmative defense provisions in the
Oil and Gas NESHAP. The commenter's main argument is that the
affirmative defense in the Oil and Gas NESHAP provides for a defense
against liability and, as such, is unaffected by the NRDC decision that
held unlawful an affirmative defense to penalties in private civil
suits. However, the commenter's interpretation of the affirmative
defense in the Oil and Gas NESHAP is clearly incorrect as it
contradicts the clear language of the affirmative defense in these
NESHAP at 40 CFR 63.762(d) and 63.1272(d), which specifically state
that ``you may assert an affirmative defense to a claim for civil
penalties for violations of such standards that are caused by
malfunction as defined at 40 CFR 63.2. Appropriate penalties may be
assessed if you fail to meet your burden of proving all of the
requirements in the affirmative defense.'' [Emphasis added].
Furthermore, this is the same wording as the affirmative defense in
NRDC,\5\ and the commenter does not explain how it interprets the same
wording differently. We therefore find this argument to be totally
without merit.\6\
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\5\ See 749 F.3d at 1062, which identifies 40 CFR 63.1344 at 78
FR 10039 as the affirmative defense at issue in NRDC. 40 CFR
63.1344, as promulgated in that 2013 rule, provided that ``[i]n
response to an action to enforce the standards . . . you may assert
an affirmative defense to a claim for civil penalties for violations
of such standards that are caused by malfunction, as defined at 40
CFR 63.2. Appropriate penalties may be assessed if you fail to meet
your burden of proving all of the requirements in the affirmative
defense. The affirmative defense shall not be available for claims
for injunctive relief.'' [Emphasis added].
\6\ The commenter also claims that the EPA is incorrect to the
extent it is asserting that there is no distinction between
affirmative defense to liability and affirmative defense to
penalties. The EPA did not make such assertion. The proposed rule
does not address an affirmative defense to liability as that is not
the regulatory provision at issue in this rulemaking.
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The EPA is also unpersuaded by the commenter's argument that the
EPA should retain the affirmative defense in the Oil and Gas NESHAP in
administrative cases even if not in judicial proceedings. The commenter
claims that the EPA's view that ``assessment of penalties for
violations caused by malfunctions in administrative proceedings and
judicial proceedings should be consistent'' is based on CAA section
113(e) and therefore flawed. The commenter argues that CAA section
113(e), which requires both the Administrator and the courts to take
specified criteria into consideration when assessing penalties, is
``entirely beside the point in deciding whether to retain the
affirmative defense to liability'' that the commenter claims is in Oil
and Gas NESHAP. However, as discussed above, the affirmative defense in
the Oil and Gas NESHAP goes to penalty assessment; accordingly, the
commenter's argument that CAA section 113(e) is not relevant is
incorrect.
The EPA also disagrees with the commenter's argument that retaining
the affirmative defense in administrative cases is necessary in light
of CAA section 113(d), which the commenter claims leaves ``the ability
to raise these real-world practical challenges . . . to the unspecified
`discretion' of EPA enforcement officials or the presiding officer (an
EPA employee) in an administrative proceeding.'' But Congress already
rejected this view; in enacting CAA section 113(d), Congress was
clearly confident with entrusting the EPA with broad authority and
discretion in assessing penalty. Further, as the EPA explained in the
proposal preamble, ``if a source is unable to comply with emissions
standards as a result of a malfunction, the EPA may use its case-by-
case enforcement discretion to provide flexibility, as appropriate.''
88 FR 83891. In any event, the commenter appears to be expressing a
hypothetical concern, as the commenter has not claimed or provided any
information indicating that the EPA prohibited or otherwise limited
one's ability to raise ``real-world concerns'' in the penalty
assessment stage during an administrative proceeding.
Lastly, contrary to the commenter's assertion, the EPA does not
claim that only factors listed in CAA section 113(e) may be considered
when determining administrative penalties, nor is there inconsistency
between the EPA's interpretation of CAA section 113(e) (as explained in
this rulemaking) and the EPA's long-standing policies and practices in
penalty assessment. CAA section 113(e) makes clear that, in determining
the amount of penalty, the EPA and the courts are not limited to
consider only the factors enumerated in that section; they shall also
consider ``such other factors as justice may require.'' Accordingly, to
the extent that the EPA has focused on other factors, as the commenter
claims, the EPA's action is in accordance with the CAA. For the same
reason, the EPA rejects the commenter's accusation that the EPA has
been determining administrative penalties ``without any consideration
of CAA section 113(e);'' the commenter also offers no evidence that the
EPA declined to consider the factors in CAA section 113(e).
For the reasons stated above, the EPA finds that the commenter has
not justified retaining the affirmative defense in the Oil and Gas
NESHAP.
[[Page 84295]]
V. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected sources?
Sources subject to subparts HH and HHH under 40 CFR part 63, as
amended in 1990, section 112.
B. What are the air quality impacts?
There are no air quality impacts associated with this action. The
affirmative defense provisions did not affect the stringency of the
standards in 40 CFR part 63, subparts HH or HHH. The removal of the
provisions does not have a material impact on the obligation for
sources to comply with current existing standards, or the ability of
Federal or state agencies to enforce standards.
C. What are the cost impacts?
There are no cost impacts associated with this action. The
affirmative defense provisions did not affect the stringency of the
standards in the Oil and Gas NESHAP. The removal of the provisions does
not have a material impact on the obligation for sources to comply with
current existing standards, or the ability of Federal or state agencies
to enforce standards. 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 removal of the affirmative defense provisions does not
affect that burden because sources will still be required to report
malfunctions that result in a failure to meet the standards. Since the
option to invoke an affirmative defense was voluntary, there may be a
negligible cost savings for reporting malfunctions by removing these
provisions.
D. What are the economic impacts?
There are no economic impacts associated with this action. The
affirmative defense provisions did not affect the stringency of the
standards in the Oil and Gas NESHAP. The removal of the provisions does
not have a material impact on the obligation for sources to comply with
current existing standards, or the ability of Federal or state agencies
to enforce standards. 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 removal of the affirmative defense provisions does not
affect that burden because sources will still be required to report
malfunctions that could have resulted in a failure to meet the
standards. Since the option to invoke an affirmative defense was
voluntary, there may be a negligible cost savings for reporting
malfunctions by removing these provisions.
E. What are the benefits?
There are no environmental benefits associated with this action.
The affirmative defense provisions did not affect the stringency of the
standards in the Oil and Gas NESHAP. The removal of the provisions does
not have a material impact on the obligation for sources to comply with
current existing standards, or the ability of Federal or state agencies
to enforce standards.
VI. 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 and 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 review under Executive Order
12866.
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 number 2060-0417. 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. There
are no economic impacts associated with this action. The affirmative
defense provisions did not affect the stringency of the standards in 40
CFR part 63, subparts HH or HHH. The removal of the provisions does not
have a material impact on the obligation for sources to comply with
current existing standards, or the ability of Federal or State agencies
to enforce standards. 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
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. 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, 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)
This rulemaking does not involve technical standards.
[[Page 84296]]
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
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 communities with environmental justice concerns.
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.
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).
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency (EPA) amends Title 40, chapter I, of the Code of
Federal Regulations (CFR) as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--National Emission Standards for Hazardous Air
Pollutants From Oil and Natural Gas Production Facilities
0
2. Section 63.760 is amended by adding paragraph (i) to read as
follows:
Sec. 63.760 Applicability and designation of affected source.
* * * * *
(i) Emissions standards in this subpart apply at all times.
Sec. 63.761 [Amended]
0
3. Section 63.761 is amended by removing the definition ``Affirmative
defense''.
Sec. 63.762 [Removed and Reserved]
0
4. Section 63.762 is removed and reserved.
Subpart HHH--National Emission Standards for Hazardous Air
Pollutants From Natural Gas Transmission and Storage Facilities
0
5. Section 63.1270 is amended by adding paragraph (g) to read as
follows.
Sec. 63.1270 Applicability and designation of affected source.
* * * * *
(g) Emissions standards in this subpart apply at all times.
Sec. 63.1271 [Amended]
0
6. Section 63.1271 is amended by removing the definition ``Affirmative
defense''.
Sec. 63.1272 [Removed and Reserved]
0
7. Section 63.1272 is removed and reserved.
[FR Doc. 2024-24288 Filed 10-21-24; 8:45 am]
BILLING CODE 6560-50-P
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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.