Rule2025-16744
National Emission Standards for Hazardous Air Pollutants for the Polyether Polyols Production Industry: Removal of Affirmative Defense
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
September 2, 2025
Effective
September 2, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The U.S. Environmental Protection Agency (EPA) is finalizing amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Polyether Polyols (PEPO) Production under the Clean Air Act (CAA). Specifically, for this NESHAP, the EPA is finalizing the removal of affirmative defense provisions associated with the violation of air emission standards due to malfunctions.
Full Text
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<title>Federal Register, Volume 90 Issue 167 (Tuesday, September 2, 2025)</title>
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[Federal Register Volume 90, Number 167 (Tuesday, September 2, 2025)]
[Rules and Regulations]
[Pages 42323-42328]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-16744]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2023-0509; FRL-11651-04-OAR]
RIN 2060-AW56
National Emission Standards for Hazardous Air Pollutants for the
Polyether Polyols Production Industry: Removal of Affirmative Defense
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is finalizing
amendments to the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Polyether Polyols (PEPO) Production under the
Clean Air Act (CAA). Specifically, for this NESHAP, the EPA is
finalizing the removal of affirmative defense provisions associated
with the violation of air emission standards due to malfunctions.
DATES: This final rule is effective on September 2, 2025.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2023-0509. 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. Except for such material,
publicly available docket
[[Page 42324]]
materials are available electronically on <a href="http://Regulations.gov">Regulations.gov</a> or on the EPA
computers in the docket office reading room at the EPA Docket Center,
WJC West Building, Room Number 3334, 1301 Constitution Ave. NW,
Washington, DC. The Public Reading Room hours of operation are 8:30
a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday.
The telephone number for the Public Reading Room is (202) 566-1744, and
the telephone number for the EPA Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For questions about this 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; email address:
<a href="/cdn-cgi/l/email-protection#b8daddcadfd1d696d5d1dbd0ddd4d4ddf8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="2e4c4b5c4947400043474d464b42424b6e4b5e4f00494158">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. Throughout this document the
use of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. 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
CRA Congressional Review Act
D.C. Circuit United State Court of Appeals for the District of
Columbia Circuit
EPA Environmental Protection Agency
NAICS North American Industry Classification System
NRDC Natural Resources Defense Council
NTTAA National Technology Transfer and Advancement Act
NESHAP National Emission Standards for Hazardous Air Pollutants
NSPS New Source Performance Standards
PRA Paperwork Reduction Act
PEPO Polyether Polyols
RFA Regulatory Flexibility Act
SSM Startup, Shutdown, and Malfunction
UMRA Unfunded Mandates Reform Act
Table of Contents
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. Background
III. What action is the EPA finalizing?
IV. Response to Comments
V. Summary of Cost, Environmental, and Economic Impacts
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA) and
1 CFR Part 51
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
This final rule is applicable to facilities subject to the NESHAP
for PEPO Production source category (referred to as the ``PEPO NESHAP''
in this document). Facilities associated with this rule are often
referred to as ``PEPO facilities.'' There are approximately 23 PEPO
facilities in the United States, largely in the eastern half of the
nation. The North American Industry Classification System (NAICS) code
for PEPO facilities is 325199 (All Other Basic Organic Chemical
Manufacturing). This NAICS code does not preclude the applicability of
this rule to other sources but rather provides a guide for readers
regarding the entities that this action is likely to affect. To
determine whether this action applies to your facility, you should
examine the applicability criteria in the regulations. This final rule
does not impact the Federal Government or state, local or Tribal
governments. If you have any questions regarding the applicability of
this action to a particular entity, please contact your Regional EPA
office or 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 (Docket ID No. EPA-HQ-
OAR-2023-0509), an electronic copy of this final action is available on
the internet at <a href="https://www.epa.gov/stationary-sources-air-pollution/polyether-polyols-production-national-emission-standards-hazardous">https://www.epa.gov/stationary-sources-air-pollution/polyether-polyols-production-national-emission-standards-hazardous</a>.
Following publication in the Federal Register, the EPA will post the
Federal Register version of this action and of key related documents at
this same website.
C. Judicial and Administrative Review
Under CAA section 307(b)(1), judicial review of this final rule is
available only by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit by November 3,
2025. Under CAA section 307(b)(2), the requirements established by this
final rule may not be challenged separately in any civil or criminal
proceedings brought by the EPA to enforce the requirements.
CAA section 307(d)(7)(B) 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 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 should
submit a Petition for Reconsideration to the Office of the
Administrator, U.S. Environmental Protection Agency, Room 3000, WJC
South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a
copy to both the person 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 Ave. NW, Washington,
DC 20460.
II. Background
In Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the United
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) vacated portions of two provisions exempting 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). The D.C. Circuit held that CAA
section 302(k) requires emissions standards or limitations to be
continuous in nature and that the SSM exemption from otherwise
applicable CAA section 112 standards violated this requirement. To
address the court's decision, the EPA began amending SSM provisions in
various rules, starting in 2010 with the Portland Cement Manufacturing
[[Page 42325]]
NESHAP (75 FR 54970, September 9, 2010; 40 CFR part 63, subpart LLL).
In that action, the EPA responded to comments on malfunctions by
adding an affirmative defense to civil penalties for when the event
that causes an exceedance of an applicable standard meets the narrow
regulatory definition of ``malfunction.'' Specifically, the EPA has
long defined malfunctions in its General Provisions regulation for CAA
section 112 as 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 which
causes, or has the potential to cause, the emission limitations in an
applicable standard to be exceeded. Failures that are caused in part by
poor maintenance or careless operation are not malfunctions.'' \1\
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\1\ See 40 CFR 63.2.
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Under the EPA's 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. Although the EPA recognized that its
case-by-case enforcement discretion provided flexibility to address
circumstances in which malfunction events resulted in non-compliance
with any applicable standards, it included the affirmative defense in
some rules to provide a more formalized approach to malfunctions (e.g.,
79 FR 1676, 1712, January 9, 2014).\2\
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\2\ 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'').
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With respect to the PEPO NESHAP, the EPA established affirmative
defense provisions in 2014 at 40 CFR 63.1420(i).\3\ However, in NRDC v.
EPA, 749 F.3d 1055 (D.C. Cir., 2014), the D.C. Circuit soon thereafter
vacated the portion of the EPA's CAA section 112 regulation pertaining
to the affirmative defense in the Portland Cement Manufacturing NESHAP.
The court found that the EPA lacked authority to establish an
affirmative defense for private civil suits and held that CAA section
304(a) vests the authority over private suits exclusively with the
courts, not the EPA. Id. at 1063.
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\3\ See 79 FR 17340 (March 27, 2014).
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Since the NRDC decision, the EPA has been removing affirmative
defense provisions from CAA section 112 rules, as well as from section
111 (New Source Performance Standards) and section 129 (Solid Waste
Combustion) rules.\4\ In this rule, the EPA is finalizing, as proposed,
the removal of affirmative defense provisions from the PEPO NESHAP (40
CFR part 63 subpart PPP). The removal of the affirmative provisions
from the PEPO NESHAP was proposed along with removal of affirmative
defense from 17 other rules (89 FR 52425, June 24, 2024). This final
action removes affirmative defense provisions only from the PEPO NESHAP
and does not take final action on any of the other regulatory changes
set out in the proposal.
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\4\ For example, see ``Removal of Affirmative Defense Provisions
From the NESHAP for the Oil and Natural Gas Production Facility and
Natural Gas Transmission and Storage Facility Source Categories''
(89 FR 84291, October 22, 2024); ``National Emission Standards for
Hazardous Air Pollutants for Major Sources: Industrial, Commercial,
and Institutional Boilers and Process Heaters'' (80 FR 72789,
September 20, 2015); and ``National Emission Standards for Hazardous
Air Pollutants for Area Sources: Industrial, Commercial, and
Institutional Boilers'' (81 FR 63112, September 14, 2016).
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As indicated in the previous actions removing affirmative defense
provisions and in the proposed rulemaking, the EPA will continue to
evaluate possible violations on a case-by-case basis and determine
whether an enforcement action is appropriate. If the EPA determines
that bringing an enforcement action under CAA section 113(d)(2)(B)
against a source for a violation of an emission standard is warranted,
the source can raise all defenses available under the law, and the
Federal district court will determine what, if any, relief is
appropriate. The presiding officer in an administrative proceeding can
also consider any defense raised and determine whether administrative
penalties are appropriate.\5\ Similarly, as the D.C. Circuit recognized
in NRDC, 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. 749 F.3d
at 1064.
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\5\ 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 did not include such an
affirmative defense for the rule 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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III. What action is the EPA finalizing?
The EPA is finalizing the removal of affirmative defense provisions
from the PEPO NESHAP (40 CFR part 63 subpart PPP). This action on the
PEPO NESHAP is under a consent decree to be finalized by September 10,
2025.\6\ These provisions imply legal authority that the D.C. Circuit
has stated the EPA does not have.
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\6\ On November 22, 2024, the U.S. District Court for the
District of Columbia entered a consent decree in Louisiana
Environmental Action Network, et al. v. Regan, Case No. 1:23-cv-2714
establishing a deadline for action on the affirmative defense
provision in the PEPO NESHAP. This deadline was subsequently
extended to September 10, 2025.
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On June 24, 2024, the EPA proposed to remove the affirmative
defense provisions in 40 CFR part 63 subpart PPP and from 17 other
rules, each codified under either 40 CFR part 60 or part 63 (NSPS and
NESHAP, respectively).\7\ In this action, the EPA is finalizing only
the removal of affirmative defense provisions from the PEPO NESHAP to
comply with the terms of the consent decree noted above, which applies
only to the PEPO NESHAP provisions. We are not taking final action on
any of the other proposed amendments and are not withdrawing or
determining not to finalize the remainder of the proposed amendments.
Rather, we are finalizing the proposed rule in relevant part and intend
to, at an appropriate future date, take final action on the remainder
of the proposal. See, e.g., Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C.
Cir. 1989) (``agencies have great discretion to treat a problem
partially''); Nat'l Ass'n of Broads. v. FCC, 740 F.2d 1190, 1210 (D.C.
Cir. 1984) (recognizing the ``reasonableness'' of agency ``decision to
engage in incremental rulemaking'').
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\7\ See 89 FR 52425, June 24, 2024.
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IV. Response to Comments
The EPA received five substantive comment submittals on the
proposal (89 FR 52425, June 24, 2024), which addressed 18 rules. The
following section provides a summary of comments relevant to the
removal of affirmative defense provisions for the PEPO NESHAP (40 CFR
part 63 subpart PPP), including general comments that apply to multiple
aspects of the proposed rulemaking and the PEPO NESHAP, and the EPA
responses thereto. The EPA has reviewed all comments received and will
respond to any additional comments as appropriate when taking final
action on the remaining aspects of the proposed rule.
Comment: One commenter requested that, before eliminating the
malfunction affirmative defense, the EPA review each regulation and
adopt appropriate work practice standards. Per the commenter, this
approach would provide the relevant source category a compliance option
during situations
[[Page 42326]]
when ``it is technically impossible to properly operate'' some required
pollution control techniques during ``unpredicted and reasonably
unavoidable failures of air pollution control systems.'' Per the
commenter, the EPA must methodically and diligently examine relevant
data and information before articulating an explanation for its final
decision as part of its periodic reviews for NESHAP standards and
updates to NSPS standards.
Response: The EPA disagrees with the commenter's assertion that it
must adopt work practice standards before removing affirmative defense
provisions.
In 2014, the EPA finalized the residual risk and technology review
for the PEPO NESHAP.\8\ In that rule, the EPA eliminated the SSM
exemptions in the PEPO NESHAP and required that the applicable
standards always apply, including during periods of SSM. In
establishing these standards for the PEPO NESHAP, the EPA considered
startup and shutdown periods, and for the reasons explained in the 2014
rule it did not establish alternate standards for these periods.
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\8\ See 79 FR 17340, March 27, 2014.
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In addition, the EPA took the position in the 2014 rule that the
Agency is not required to take malfunctions into account in setting
applicable standards or to devise separate standards that apply
specifically to malfunction-caused emissions.\9\ The EPA determined
that CAA section 112 does not require emissions that occur during
periods of malfunction to be factored into development of CAA section
112 standards. This reading was upheld as reasonable in U.S. Sugar
Corp. v. EPA, 830 F.3d 579, 606-610 (D.C. Cir. 2016).\10\
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\9\ See 79 FR 17355, March 27, 2014.
\10\ See 79 FR 17355, March 27, 2014, in U.S. Sugar Corp. ``the
[CAA section 112] language permits the EPA to ignore malfunctions in
its standard-setting and account for them instead through its
regulatory discretion''.
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Finally, commenters did not provide the EPA with any data or
specific information for the PEPO NESHAP to support their comments or
give any indication that there are unaddressed circumstances for the
PEPO NESHAP that would be impacted by removal of the affirmative
defense provisions. The EPA retains the discretion to take into
consideration any unique operating conditions at a particular source or
pertinent data in the context of future reviews or of an enforcement
investigation and action under CAA section 113.
Comment: Some commenters stated that ``[t]he legal basis for
concluding EPA must remove the affirmative defense from all regulations
that contain it is even stronger than EPA's proposal makes it seem,''
referring to Environmental Committee of the Florida Electric Power
Coordinating Group v. EPA, 94 F.4th 77 (D.C. Cir. 2024). Environmental
organizations comment that the decision ``expressly addresses
affirmative defenses against civil penalties, unanimously holding that
such defenses are illegal both in state implementation plans and in
`EPA-created rules.' '' Id. at 115-16. The commenter further stated
that ``Environmental Committee thus confirms no affirmative defense
against civil penalties can continue in any EPA-issued or approved air
pollution regulation.'' Thus, according to the commenter, the D.C.
Circuit reaffirmed its earlier NRDC decision.
Response: Although the D.C. Circuit's decision in Environmental
Committee was largely premised on certain language in CAA section
110(a)(2)(A) rather than the relevant language in CAA section 112, the
EPA agrees that the decision supports this final action. In
Environmental Committee, the D.C. Circuit upheld the EPA's action
requiring states to remove certain affirmative defenses from their
State Implementation Plans. These affirmative defenses precluded
certain remedies in judicial actions against sources that violated
emissions limits. The court held that because CAA sections 304(a) and
113(b) authorize citizens and the EPA to seek injunctive relief and
monetary penalties against sources that violate emission limits, such
an affirmative defense would ``block that aspect of the Act's [CAA]
enforcement regime.'' 94 F.4th at 89. This holding supports the EPA's
decision to remove affirmative defenses against civil penalties from
CAA section 112 rules.
Comment: One commenter noted that, when affirmative defenses were
added, the EPA provided a reasoned justification for including
affirmative defenses in the rules. As an example, the commenter quoted
language included in the preamble of a 2012 rule: ``[T]he EPA
recognizes that even equipment that is properly designed and maintained
can sometimes fail and that such failure can sometimes cause a
violation of the relevant emission standard. The EPA is therefore
finalizing an affirmative defense to civil penalties for violations of
emission standards that are caused by malfunctions.'' \11\ The
commenter further quoted: ``The EPA proposed and is now finalizing an
affirmative defense in this rule in an attempt to balance a tension,
inherent in many types of air regulations, to ensure adequate
compliance while simultaneously recognizing that despite the most
diligent of efforts, emission standards may be violated under
circumstances beyond the control of the source.'' \12\
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\11\ See 77 FR 48433, 48436 (August 14, 2012).
\12\ Id.
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Response: The EPA acknowledges that affirmative defense provisions
were added when exemptions to emissions released during malfunction
were not included in the revised standards. The commenter accurately
states the rationale at the time of that 2012 final rule in the
language quoted above. However, the D.C. Circuit subsequently found in
the 2014 NRDC decision that the EPA lacks the authority to provide this
affirmative defense to civil penalties. There is no change to the fact
that emission standards must apply during malfunction, in accordance
with the D.C. Circuit's 2008 decision in Sierra Club. The EPA still
retains enforcement authority for case-by-case consideration of
emission standard deviations. 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
all legal defenses in response, and the Federal district court will
determine what, if any, relief is appropriate.
Comment: One commenter submitted a discussion of some aspects of a
source's operation, that by nature cause variability in emissions. The
commenter expressed concern that this ``[p]roposed Rule could have a
chilling effect on state provisions put in place to delineate emissions
from SSM conditions from steady-state emissions.'' Another commenter
``advocates for a work practice standard approach that would apply
during SSM events, in lieu of striking SSM exclusions and affirmative
defenses.''
Response: The EPA disagrees that this final rule could have an
impact on state provisions to delineate emissions from SSM conditions
from steady-state operation. This action does not impact or change the
applicable standards in the PEPO NESHAP. This action only removes the
affirmative defense provision pursuant to the D.C. Circuit's decision
in NRDC. As explained earlier in this preamble, the EPA has already
removed SSM exemptions from the PEPO NESHAP, with the appropriate
evaluation, proposal, and comment period, when it provided emission
standards that always apply. Emission
[[Page 42327]]
standards during periods of SSM previously addressed in that final rule
are outside of the scope of this action.
Comment: Some commenters, in support of the proposal, disagreed
with the EPA's statements regarding the rule's estimated lack of air
quality impacts and benefits. The commenters agreed instead with
statements the EPA included in the preamble of a 2023 proposed rule
that ``. . . [r]emoving loopholes from air quality regulations takes
away exemptions and defenses from liability that polluters routinely
invoke when they violate emission standards, and thus removal of such
loopholes makes standards easier to enforce,'' and that ``[a]s a result
of the removal, polluters have greater incentives to minimize excess
emissions, and pollution levels should drop, benefiting air quality,
the environment, and human health.'' \13\
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\13\ 88 FR 11842, 11863 (February 24, 2023).
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Response: The EPA disagrees that its statements regarding this
rulemaking's implications conflict with prior EPA statements noted by
the commenter. The quotation provided by the commenter was made in the
context of a CAA section 110 proposed rulemaking considering different
kinds of SSM provisions with varying scope and effect, rather than
solely the affirmative defenses against the specific relief at issue
here. As noted earlier in this preamble, the EPA has already removed
SSM exemptions for the PEPO NESHAP in a previous final rule. This
action does not impact or change the applicable standards in the PEPO
NESHAP, but rather removes the affirmative defense provision pursuant
to the D.C. Circuit's decision in NRDC. Whereas removing SSM exemptions
may be expected to reduce certain emissions during SSM periods, this
action to simply remove affirmative defense provisions from the PEPO
NESHAP is not expected to reduce emissions because affirmative defense
provisions were not included in the rule to excuse the sources from
complying with applicable emission standards.
Comment: Some commenters stated that the proposed rulemaking
overlooks cost impacts. For example, one commenter stated that the EPA
should consider the costs that will result should the EPA remove relief
for SSM events, such as affirmative defenses. The commenter stated:
``If SSM emissions are not delineated, then notices of violation and
enforcement activities are likely to increase for utilities.
Implementing agencies will not be armed with information to discern the
reasons behind elevated emissions during a SSM event. Financial impacts
on sources subject to enforcement are evident. Companies must contend
with direct State and Federal civil penalties, as well as the loss of
enforcement discounts for first-time offenders.''
Response: The EPA disagrees with the commenter that we overlooked
the cost impacts of removing the affirmative defense provisions. This
action does not impact or change the applicable standards in the PEPO
NESHAP or the recordkeeping and reporting requirements associated with
such standards. This action only removes the affirmative defense
provisions in 40 CFR 63.1420(i) pursuant to the D.C. Circuit's decision
in NRDC. When the EPA originally promulgated the affirmative defense
provisions in the PEPO NESHAP, the EPA estimated a small administrative
burden (not savings) of $1,584 annual cost, noting that ``these costs
are only incurred if there has been a violation and a source chooses to
take advantage of the affirmative defense.'' \14\ However, the removal
of the affirmative defense provisions does not likely affect that
burden because the EPA expects that sources will continue to collect
similar information to comply with the recordkeeping requirements in 40
CFR 63.1439(b)(1).
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\14\ 79 FR 17361, March 27, 2014.
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Finally, the rulemaking does not impact notices of violation or
enforcement activities. 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 legal defenses in response, and the Federal district court
will determine what, if any, relief is appropriate. The presiding
officer in an administrative proceeding can also consider any defense
raised and determine whether administrative penalties are appropriate.
Similarly, as the D.C. Circuit recognized in NRDC and Environmental
Committee, 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.
V. Summary of Cost, Environmental, and Economic Impacts
There are no air quality or cost impacts associated with the
amendments we are finalizing and, therefore, there are no economic
impacts. The affirmative defense removal does not affect the stringency
of or compliance requirements of the PEPO NESHAP. 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 PEPO NESHAP, the EPA estimated a small administrative burden for
reporting deviations from standards that a result from malfunctions
which included the option for an owner or operator to offer an
affirmative defense. The removal of the affirmative defense provisions
does not affect that small administrative burden because the EPA
expects that sources will continue to comply with the recordkeeping
requirements in 40 CFR 63.1439(b)(1). In addition, sources will
continue to report required information regarding malfunctions that
result in a failure to meet applicable 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 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. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is not an Executive Order 14192 regulatory action
because this action is not significant under Executive Order 12866.
C. 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.
D. 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 the impact of concern
for this rule is any significant adverse economic impact on small
entities and that the agency is
[[Page 42328]]
certifying that this rule will not have a significant economic impact
on a substantial number of 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 PEPO NESHAP, the EPA estimated a small administrative
burden (less than $2,000 annually). The estimate of this burden was
described as illustrative because ``these costs are only incurred if
there has been a violation and a source chooses to take advantage of
the affirmative defense.'' See 79 FR 17361 (March 27, 2014). The
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 to comply with the malfunction
recordkeeping requirements in 40 CFR 63.1439(b)(1) and 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.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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.
J. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51
This rule does not involve technical standards.
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, Administrative practice and procedures,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Lee Zeldin,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency amends part 63 of title 40, chapter I, of the Code of
Federal Regulations 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 PPP--National Emission Standards for Hazardous Air
Pollutant Emissions for Polyether Polyols Production
Sec. 63.1420 [Amended]
0
2. Amend Sec. 63.1420 by removing paragraph (i).
Sec. 63.1423 [Amended]
0
3. In Sec. 63.1423, amend paragraph (b) by removing the definition of
``Affirmative defense.''
[FR Doc. 2025-16744 Filed 8-29-25; 8:45 am]
BILLING CODE 6560-50-P
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