[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 [www.gpo.gov]
[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:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2023-0509 in the subject line of the message.
     Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2023-0509.
     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.
     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 https://www.regulations.gov/, 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: 
[email protected].

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 [email protected]. 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 https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source.
    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 https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source or contact the public hearing 
team at (888) 372-8699 or by email at [email protected]. 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: https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source.
    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 
[email protected]. 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 https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source. 
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 [email protected] 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 https://www.regulations.gov/. 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 
https://www.regulations.gov/.
    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 https://www.regulations.gov/, 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 https://www.regulations.gov/ 
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 https://www.epa.gov/dockets/commenting-epa-dockets.
    The https://www.regulations.gov/ 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 
https://www.regulations.gov/, 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 https://www.epa.gov/dockets.
    Submitting CBI. Do not submit information containing CBI to the EPA 
through https://www.regulations.gov/. 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 [email protected], 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 [email protected] 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 https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source. 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 
https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source.

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.
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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 
https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisions-specified-new-source. 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 https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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