
[Federal Register Volume 81, Number 114 (Tuesday, June 14, 2016)]
[Proposed Rules]
[Pages 38645-38655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14104]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[EPA-HQ-OAR-2016-0186; FRL-9947-56-OAR]
RIN 2060-AS96


Removal of Title V Emergency Affirmative Defense Provisions From 
State Operating Permit Programs and Federal Operating Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
remove the affirmative defense provisions for emergencies found in the 
regulations for state and federal operating permit programs. These 
provisions establish an affirmative defense that sources can assert in 
civil enforcement cases when noncompliance with certain emission 
limitations in operating permits occurs because of qualifying 
``emergency'' circumstances. These provisions, which have never been 
required elements of state operating permit programs, are being removed 
because they are inconsistent with the enforcement structure of the 
Clean Air Act (CAA) and recent court decisions from the U.S. Court of 
Appeals for the D.C. Circuit. The removal of these provisions is 
consistent with other recent EPA actions involving affirmative defenses 
and would harmonize the enforcement and implementation of emission 
limitations across different CAA programs. The EPA is also taking 
comment on various implementation consequences relating to the proposed 
removal of the emergency affirmative defense provisions.

DATES: 
    Comments. Comments must be received on or before August 15, 2016.
    Public Hearing: If anyone contacts the EPA requesting a public 
hearing on or before June 29, 2016, the EPA will hold a hearing. 
Additional information about the hearing, if requested, will be 
published in a subsequent Federal Register document.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2016-0186, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential

[[Page 38646]]

Business Information (CBI) or other information whose disclosure is 
restricted by statute. 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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For general information, please 
contact Mr. Matthew Spangler, U.S. Environmental Protection Agency, 
Office of Air Quality Planning and Standards, Air Quality Planning 
Division (C504-05), Research Triangle Park, NC 27711; telephone number: 
(919) 541-0327; email address: spangler.matthew@epa.gov. To request a 
public hearing or information pertaining to a public hearing on this 
document, contact Ms. Pamela Long, U.S. Environmental Protection 
Agency, Office of Air Quality Planning and Standards, Air Quality 
Planning Division (C504-01), Research Triangle Park, NC 27711; 
telephone number (919) 541-0641; fax number (919) 541-5509; email 
address: long.pam@epa.gov.

SUPPLEMENTARY INFORMATION: 

 I. General Information

A. How is this Federal Register notice organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. How is this Federal Register notice organized?
    B. Does this action apply to me?
    C. What should I consider as I prepare my comments for the EPA?
    D. How can I find information about a possible public hearing?
    E. Where can I get a copy of this document and other related 
information?
II. Overview of Action
III. Background
    A. Regulatory History of 40 CFR 70.6(g) and 71.6(g)
    B. Subsequent Legal and Regulatory History Supporting This 
Action
IV. Proposed Changes to Part 70 and Part 71 Regulations
    A. Purpose of This Proposed Rulemaking
    B. Proposed Action: Removal of 40 CFR 70.6(g) and 71.6(g)
    C. Legal Justification for Proposed Action
V. Implementation
    A. Implementing These Changes in Part 70 State Operating Permit 
Programs
    B. Implementing These Changes in the Part 71 Federal Operating 
Permit Program
    C. Effect on Sources Potentially Subject to Enforcement 
Proceedings
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (URMA)
    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 and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
VIII. Statutory Authority

B. Does this action apply to me?

    Entities potentially affected by this proposed rulemaking include 
federal, state, local and tribal air pollution control agencies that 
administer title V operating permit programs \1\ and owners and 
operators of emissions sources in all industry groups who hold or apply 
for title V operating permits.
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    \1\ This preamble makes frequent use of the term ``state,'' 
usually meaning the state air pollution control agency that serves 
as the permitting authority. The use of the term ``state'' also 
applies to local and tribal air pollution control agencies, where 
applicable.
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C. What should I consider as I prepare my comments for the EPA?

1. Submitting CBI
    Do not submit CBI to the EPA through http://www.regulations.gov or 
email. Clearly mark the part or all of the information that you claim 
to be CBI. For CBI information in a disk or CD-ROM that you mail to the 
EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions. The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

D. How can I find information about a possible public hearing?

    If anyone contacts the EPA requesting a public hearing on or before 
June 29, 2016, the EPA will hold a hearing. If requested, further 
details concerning a public hearing for this proposed rule will be 
published in a subsequent Federal Register document. For updates and 
additional information on a public hearing, please check the EPA's Web 
page at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.

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

    In addition to being available in the docket, an electronic copy of 
this Federal Register document will be posted at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.

II. Overview of Action

    The EPA has promulgated permitting regulations for the operation of 
major and certain other sources of air pollutants under title V of the 
CAA. These regulations are codified in 40 CFR parts 70 and 71, which 
contain the requirements for state operating permit programs and the 
federal operating

[[Page 38647]]

permit program, respectively. These regulations currently contain 
identical provisions setting forth an affirmative defense to 
enforcement actions brought for noncompliance with technology-based 
emission limitations under specific ``emergency'' circumstances. See 40 
CFR 70.6(g) and 71.6(g).
    In this action, the EPA is proposing to remove the emergency 
affirmative defense provisions in 40 CFR 70.6(g) and 71.6(g) because 
they are inconsistent with the EPA's current interpretation of the 
CAA's enforcement structure and recent court decisions from the U.S. 
Court of Appeals for the D.C. Circuit. These provisions have never been 
required elements of state operating permit programs. The removal of 
these provisions is consistent with other recent EPA actions involving 
affirmative defenses and would help harmonize the enforcement and 
implementation of emission limitations across different CAA programs.
    If the EPA takes final action to remove these provisions from 40 
CFR 70.6(g), it may be necessary for any states that have adopted 
similar affirmative defense provisions into their part 70 operating 
permit programs to revise their program regulations to remove these 
provisions. In addition, the EPA expects that these states would 
coordinate revisions of individual operating permits that contain 
similar provisions.

III. Background

A. Regulatory History of 40 CFR 70.6(g) and 71.6(g)

    In 1990, Congress amended the CAA and established, among other 
things, title V of the CAA, which contains a national operating permit 
program for certain stationary sources of air pollution. See CAA 
sections 501-503, Public Law 101-549 (1990) (codified at 42 U.S.C. 
7661-7661b). Shortly thereafter, and pursuant to CAA section 502(b), 
the EPA promulgated regulations implementing title V of the CAA. The 
first set of regulations, finalized in 1992 and codified at 40 CFR part 
70 (the part 70 regulations), governs state operating permit programs 
and provides for states to develop and submit to the EPA programs for 
issuing operating permits for major and certain other stationary 
sources of air pollution.\2\ Pursuant to CAA section 502(d)(3), the EPA 
promulgated a second set of regulations in 1996, found at 40 CFR part 
71 (the part 71 regulations), which outlines the federal operating 
permit program.\3\ Both sets of regulations contain identical 
affirmative defense provisions, which are addressed by this action.
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    \2\ Operating Permit Program, Final Rule, 57 FR 32250 (July 21, 
1992).
    \3\ Federal Operating Permits Program, Final Rule, 61 FR 34202 
(July 1, 1996).
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    Title V of the CAA does not contain any provisions concerning an 
affirmative defense mechanism for emergencies. When the EPA first 
proposed its part 70 regulations in 1991, the agency did not include 
any such provisions.\4\ However, the EPA received comments specifically 
requesting that the part 70 regulations make some provision for 
``emergencies'' or ``upsets'' caused by the failure of emission control 
equipment. In promulgating the final part 70 regulations for state 
operating permit programs, the EPA included Sec.  70.6(g), which 
contains an affirmative defense for ``emergencies.'' \5\ When the EPA 
promulgated its part 71 regulations in 1996, it adopted an identical 
provision in Sec.  71.6(g), in order to maintain consistency between 
the state and federal operating permit programs.\6\ The text of 
sections 70.6(g) and 71.6(g) has not changed since initially 
promulgated.
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    \4\ Operating Permit Program, Proposed Rule, 56 FR 21712 (May 
10, 1991).
    \5\ Operating Permit Program, Final Rule, 57 FR 32279. The EPA 
explained that the provision was intended to provide operational 
flexibility, and was modeled on a similar National Pollutant 
Discharge Elimination System (NPDES) permit provision in 40 CFR 
122.41. Id.
    \6\ Federal Operating Permits Program, Final Rule, 61 FR 34219 
(July 1, 1996).
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    The title V emergency provisions establish an affirmative defense. 
A stationary source of air pollution can assert this affirmative 
defense in an enforcement case to avoid liability for noncompliance 
with technology-based emission limits contained in the source's title V 
permit. In order to use this affirmative defense and avoid liability, 
the source must demonstrate that any excess emissions occurred as the 
result of an ``emergency,'' as defined in the regulations, and make a 
number of other demonstrations specified in the regulations. See 40 CFR 
70.6(g) and 71.6(g). These title V affirmative defense provisions apply 
in addition to, and independently from, any emergency or upset 
provisions contained in other applicable CAA requirements.
    Sections 70.6(g) and 70.4(b)(16) form the basis for similar 
affirmative defense provisions contained in state operating permit 
programs and for similar provisions contained in individual state-
issued operating permits. Section 71.6(g) provides the authority to 
include this emergency provision in operating permits issued by the EPA 
or by states with delegated authority under part 71.
    Such emergency affirmative defense provisions are not required 
program elements. States have never been obligated to include the Sec.  
70.6(g) affirmative defense provision in their part 70 operating permit 
programs; instead, the provision has always been discretionary.\7\ 
Similarly, although the emergency affirmative defense provision is 
located within the ``Permit Content'' section of the part 70 and part 
71 regulations, the EPA does not consider the provision to be a 
required permit term.\8\ Thus, the EPA considers the emergency 
provision to be a discretionary element of both state permitting 
programs as well as individual operating permits.
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    \7\ Operating Permits Program and Federal Operating Permits 
Program, Proposed Rule [Title V Supplemental Proposal], 60 FR 45530, 
45558 (August 31, 1995) (``At the outset, EPA wants to make clear 
that the part 70 rule does not require that States adopt the 
emergency defense. A State may include such a defense in its part 70 
program to the extent it finds appropriate, although it may not 
adopt an emergency defense less stringent than that set forth at 
section 70.6(g). . . . [T]he Act in sections 116 and 506(a) 
authorizes States to establish additional or more stringent air 
pollution control or permitting requirements. Consistent with that, 
States may decide to provide an emergency defense that is narrower 
in scope or more stringent in application than Sec.  70.6(g) or no 
defense at all.'').
    \8\ See State Implementation Plans: Response to Petition for 
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to 
SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction, Final Action [SSM SIP Call], 80 FR 33839, 
33924 (June 12, 2015) (``[A]s part of normal permitting process, the 
EPA encourages permitting authorities to consider the discretionary 
nature of the emergency provisions when determining whether to 
continue to include permit terms modeled on those provisions in 
operating permits that the permitting authorities are issuing in the 
first instance or renewing'').
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B. Subsequent Legal and Regulatory History Supporting This Action

    The EPA has considered the most appropriate ways to account for 
excess emissions during different modes of source operation, such as 
startup and shutdown, and emissions during emergencies, upsets, and 
malfunctions for more than 40 years. The EPA's policies regarding the 
emergency affirmative defense provisions in its part 70 and 71 
regulations have been shaped by a number of factors, including the 
structure of the CAA, federal court decisions, experience with similar 
provisions in other EPA programs, and recommendations from 
stakeholders. This section summarizes some of the more relevant and 
recent legal, regulatory, and policy considerations informing the EPA's 
current policy on affirmative defense provisions, including the D.C. 
Circuit's opinion in NRDC v. EPA and the EPA's recent

[[Page 38648]]

experience with affirmative defenses for startup, shutdown, and 
malfunction (SSM) events in State Implementation Plans (SIPs).
1. D.C. Circuit Opinion in NRDC v. EPA
    In the 2014 NRDC v. EPA \9\ case, the United States Court of 
Appeals for the D.C. Circuit vacated an affirmative defense provision 
applicable to malfunction events. In 2010, the EPA included an 
affirmative defense within its National Emission Standards for 
Hazardous Air Pollutants (NESHAP) for Portland cement facilities, 
promulgated under CAA section 112.\10\ This provision created an 
affirmative defense that sources could assert in civil enforcement 
proceedings when violations of emission limitations occurred because of 
qualifying unavoidable malfunctions. The D.C. Circuit held that this 
affirmative defense provision exceeded the EPA's statutory authority 
and that only the courts have the authority to decide whether to assess 
penalties for violations in civil suits. As the court explained:
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    \9\ 749 F.3d 1055 (D.C. Cir. 2014).
    \10\ National Emission Standards for Hazardous Air Pollutants 
From the Portland Cement Manufacturing Industry and Standards of 
Performance for Portland Cement Plants, 75 FR 54993 (September 9, 
2010).

    By its terms, Section 304(a) clearly vests authority over 
private suits in the courts, not EPA. As the language of the statute 
makes clear, the courts determine, on a case-by-case basis, whether 
civil penalties are ``appropriate.'' By contrast, EPA's ability to 
determine whether penalties should be assessed for Clean Air Act 
violations extends only to administrative penalties, not to civil 
penalties imposed by a court. . . . [U]nder this statute, deciding 
whether penalties are ``appropriate'' in a given private civil suit 
is a job for the courts, not for EPA.'' \11\
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    \11\ NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).

    The D.C. Circuit therefore concluded that the EPA lacked the 
authority to create an affirmative defense in private civil suits that 
would purport to alter the jurisdiction of the court to assess civil 
penalties for violations. Although this case was based on EPA 
regulations promulgated under CAA section 112, the court's holding was 
not based on section 112, but rather on sections 304(a) and 113(e)(1). 
Therefore, and as discussed further in Section IV of this document, the 
EPA interprets the decision to be relevant to all similar affirmative 
defense provisions, such as those found in part 70 and part 71, that 
may interfere with the authority of courts to assess penalties or to 
impose other remedies authorized in CAA section 113(b) in civil 
enforcement suits. This proposed rulemaking seeks to ensure that the 
EPA's part 70 and part 71 regulations are consistent with the 
enforcement structure of the CAA in accordance with the reasoning of 
the NRDC v. EPA decision.\12\
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    \12\ In 2008, the D.C. Circuit issued a decision in Sierra Club 
v. Johnson, 551 F.3d 1019, vacating the EPA's regulations that 
exempted sources under certain circumstances from emissions 
standards during periods of SSM. The EPA maintains that the part 70 
and part 71 emergency affirmative defense provisions are just that--
affirmative defenses to enforcement actions--not exemptions from 
otherwise applicable emissions limitations. Such affirmative defense 
provisions are called into question by NRDC v. EPA. However, to the 
extent that the title V emergency affirmative defense could be 
considered in some respects to function like an exemption from 
otherwise applicable emissions limitations, such an exemption would 
be incompatible with the CAA and Sierra Club v. Johnson. This is an 
alternative basis for proposing to remove the part 70 and part 71 
emergency affirmative defense provisions, as discussed further in 
Section IV.C of this document.
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2. SSM SIP Call
    The EPA has also reconsidered affirmative defense provisions 
similar to those involved in the NRDC v. EPA case in other recent 
regulatory actions. On June 15, 2015, the EPA issued a ``SIP Call'' 
(the SSM SIP Call) finding that certain SIP provisions in 36 states are 
substantially inadequate to meet CAA requirements.\13\ Many of the 
deficient SIP provisions at issue in the SSM SIP call are affirmative 
defense type provisions, and some of them are analogous to the 
emergency affirmative defense in part 70 and part 71. Although the 
agency's SSM policy for SIP provisions is not directly at issue in this 
proposal, certain aspects of the SSM SIP Call are especially relevant 
and are discussed in this subsection.
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    \13\ SSM SIP Call, 80 FR 33839 (June 12, 2015).
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    After the EPA initially proposed the SSM SIP Call,\14\ the D.C. 
Circuit issued its opinion in NRDC v. EPA. That decision, which 
concerned the legal basis for an affirmative defense provision in the 
EPA's own regulations, caused the EPA to reconsider the legal basis for 
any affirmative defense provisions contained in SIPs.\15\ The EPA 
concluded that the logic of the court in NRDC v. EPA extends beyond CAA 
section 112 to affirmative defense provisions contained in SIPs. 
Therefore, the EPA clarified and revised its interpretation of CAA 
requirements with respect to affirmative defense provisions for SSM 
events. The agency explained that ``the enforcement structure of the 
CAA, embodied in section 113 and section 304, precludes any affirmative 
defense provisions that would operate to limit a court's jurisdiction 
or discretion to determine the appropriate remedy in an enforcement 
action. These provisions are not appropriate under the CAA, no matter 
what type of event they apply to, what criteria they contain or what 
forms of remedy they purport to limit or eliminate.'' \16\ The EPA 
explained that ``[a]ffirmative defense provisions by their nature 
purport to limit or eliminate the authority of federal courts to 
determine liability or to impose remedies through factual 
considerations that differ from, or are contrary to, the explicit 
grants of authority in section 113(b) and section 113(e).'' \17\ The 
EPA's interpretation of the CAA's enforcement structure and the NRDC v. 
EPA decision, as set forth in the final SSM SIP Call, is relevant to 
the current rulemaking. Section IV of this document further discusses 
this interpretation in the context of the part 70 and part 71 emergency 
provisions.
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    \14\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, Proposed Rule, 78 FR 12459 
(February 22, 2013).
    \15\ See State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown and Malfunction; Supplemental Proposal To Address 
Affirmative Defense Provisions in States Included in the Petition 
for Rulemaking and in Additional States, Supplemental notice of 
proposed rulemaking [SSM SIP Call Supplemental Proposal], 79 FR 
55919, 55929 (September 17, 2014).
    \16\ SSM SIP Call, 80 FR 33851 (June 12, 2015).
    \17\ Id. at 33852.
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    Following this interpretation, the EPA directed states to remove 
specifically identified provisions containing affirmative defenses from 
their SIPs. Some of these SSM provisions were similar to the emergency 
provisions in the EPA's part 70 and part 71 regulations. In the final 
SSM SIP Call, the EPA indicated that provisions modeled after the 
Sec. Sec.  70.6(g) and 71.6(g) emergency affirmative defense 
provisions--including provisions that were more narrowly defined--were 
no longer consistent with the EPA's interpretation of the CAA and could 
not be included in SIPs.\18\ For example, the EPA found that an 
Arkansas SIP provision establishing an affirmative defense for 
emergencies, which may have been modeled after the EPA's title V 
regulations, was substantially inadequate to meet CAA requirements.\19\ 
The EPA also discussed the potential conflict between the SSM policy 
applicable to SIP provisions and the part 70 and part 71 emergency 
provisions, but noted that it was not taking action to revise the title 
V

[[Page 38649]]

regulations in the SSM SIP Call rulemaking.\20\ In the final SSM SIP 
Call, however, the EPA indicated that it was considering whether such 
changes may be necessary and how best to make such changes.
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    \18\ Id. at 33924.
    \19\ Id. at 33967; see also SSM SIP Call Supplemental Proposal, 
79 FR 55942 and 55943.
    \20\ SSM SIP Call, 80 FR 33924 (June 12, 2015).
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3. Related Actions in Other CAA Program Areas
    Since 2014, the EPA has removed or omitted affirmative defense 
provisions in numerous regulations throughout other CAA program areas 
following the NRDC v. EPA case. Specifically, in newly issued and 
revised New Source Performance Standards (NSPS), emission guidelines 
for existing sources, and NESHAP regulations, the EPA has either 
omitted new affirmative defense provisions or removed existing 
affirmative defense provisions.\21\ This proposed rulemaking for the 
part 70 and part 71 regulations is thus consistent with these related 
efforts in other CAA program areas and ensures that title V operating 
permits do not contain additional affirmative defenses that could 
interfere with the EPA's efforts to remove these impermissible 
provisions from specific underlying applicable requirements.
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    \21\ See, e.g., National Emission Standards for Hazardous Air 
Pollutants for the Portland Cement Manufacturing Industry and 
Standards of Performance for Portland Cement Plants; Final Rule, 80 
FR 44771 (July 27, 2015); National Emission Standards for Hazardous 
Air Pollutants for Major Sources: Industrial, Commercial, and 
Institutional Boilers and Process Heaters; Final Rule, 80 FR 72789 
(November 20, 2015); Standards of Performance for New Stationary 
Sources and Emission Guidelines for Existing Sources: Commercial and 
Industrial Solid Waste Incineration Units; Proposed Rule, 80 FR 
3018, 3025 (January 21, 2015).
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IV. Proposed Changes to Part 70 and Part 71 Regulations

A. Purpose of This Proposed Rulemaking

    This proposed rulemaking is responsive to a number of concerns and 
related actions, including those discussed in Section III of this 
document. The EPA considers this proposed rulemaking important to 
ensure that the EPA's title V regulations are consistent with the 
enforcement structure envisioned by Congress in the 1990 CAA 
amendments. This action is intended to respond to the reasoning of the 
D.C. Circuit's recent opinion in NRDC v. EPA, which the EPA interprets 
to extend to the affirmative defense provisions in the part 70 and part 
71 regulations. This proposed rule also follows from similar regulatory 
actions in other CAA program areas, including the recent SSM SIP Call 
and various NSPS and NESHAP regulations. The EPA considers the proposed 
removal of the emergency affirmative defense provisions from the title 
V regulations necessary to maintain a consistent interpretation of the 
CAA throughout different CAA programs, including section 110 SIPs, 
section 111 NSPS and existing source guidelines, and section 112 
NESHAPs.
    Finally, this proposed action follows from the EPA's stated 
intentions to revisit the emergency affirmative defense provisions 
promulgated in 1992 and seeks to provide clarity in response to 
stakeholder concerns.\22\ The EPA initially sought to clarify the scope 
of the emergency provisions over the course of multiple actions in 1995 
and 1996. However, the EPA ultimately indicated that it would 
reevaluate the part 70 and part 71 emergency affirmative defense 
provisions--including whether these provisions may need to be 
eliminated--in a subsequent rulemaking.\23\ The EPA again discussed the 
title V emergency provisions in the SSM SIP Call, where the agency 
acknowledged the potential conflict between the SSM policy applicable 
to SIP provisions and the part 70 and part 71 emergency provisions, but 
indicated that it would potentially make changes to the title V 
affirmative defense provisions in a subsequent rulemaking.\24\ As 
contemplated in the prior title V rulemakings and in the more recent 
SSM SIP Call, the EPA is now considering the appropriate changes to 
parts 70 and 71 and proposing to remove the title V emergency 
affirmative defenses provisions.
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    \22\ In addition to comments received on prior regulatory 
actions, the EPA has received input from stakeholders as recent as 
2006. The Clean Air Act Advisory Committee (CAAAC), chartered under 
the Federal Advisory Committee Act, was established to advise the 
EPA on issues related to the 1990 CAA Amendments. In 2006, a Task 
Force formed by the CAAAC issued its Final Report: Title V 
Implementation Experience. See Title V Task Force, Final Report to 
the Clean Air Act Advisory Committee: Title V Implementation 
Experience (April 2006), available at http://www.epa.gov/sites/production/files/2014-10/documents/title5_taskforce_finalreport20060405.pdf. Although the Task Force 
did not agree on how broadly the title V emergency affirmative 
defense should be applied, all eighteen members of the Task Force 
unanimously recommended the following: ``Title V permits should be 
clear as to which limits are subject to the part 70 emergency 
defense (e.g., under the current rule, technology based limits).'' 
Id. at 144. By way of response, the proposed action to remove these 
provisions would essentially moot these concerns about clarity on 
the applicability of these provisions.
    \23\ See Federal Operating Permits Program, Proposed Rule, 60 FR 
20804, 20816 (April 27, 1995) (``The EPA is reevaluating the 
provisions in parts 70 and 71 relating to the emergency defense in 
light of concerns identified in legal challenges to the part 70 
rule. The EPA may propose revisions to the part 70 and part 71 
sections providing for the emergency defense before EPA would 
include such defense in any part 71 permits.''); Title V 
Supplemental Proposal, 60 FR 45560 (``The EPA is reluctant to retain 
a generally applicable emergency defense without completing further 
review of the appropriateness of such a defense for the different 
Federal technology based standards in light of the concerns with 
such a defense raised in the CWA cases.''); Federal Operating 
Permits Program, Final Rule, 61 FR 34219 (``As a result of concerns 
identified in legal challenges to part 70, the Agency, in the August 
1995 supplemental proposal, solicited comment on the need for, scope 
and terms of an emergency affirmative defense provision. The Agency 
is reviewing those comments, but has not yet made a decision on 
whether or not to modify or remove this additional affirmative 
defense provision from part 70.'' (emphasis added)).
    \24\ See SSM SIP Call, 80 FR 33924 (``Those regulations [40 CFR 
70.6(g) and 71.6(g)], which are applicable to title V operating 
permits, may only be changed through appropriate rulemaking to 
revise parts 70 and 71. Further, any existing permits that contain 
such emergency provisions may only be changed through established 
permitting procedures. The EPA is considering whether to make 
changes to 40 CFR part 70 and 40 CFR part 71, and if so, how best to 
make those changes. In any such action, EPA would also intend to 
address the timing of any changes to existing title V operating 
permits. Until that time, as part of normal permitting process, the 
EPA encourages permitting authorities to consider the discretionary 
nature of the emergency provisions when determining whether to 
continue to include permit terms modeled on those provisions in 
operating permits that the permitting authorities are issuing in the 
first instance or renewing.'').
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B. Proposed Action: Removal of 40 CFR 70.6(g) and 71.6(g)

    The EPA is proposing to remove the emergency provisions located at 
40 CFR 70.6(g) and 71.6(g). The agency has not identified any other 
viable option for reconciling these affirmative defense provisions with 
the enforcement structure of the CAA, in accordance with the reasoning 
of the NRDC v. EPA decision. The implications of this proposed removal 
on the federal operating permit program, state operating permit 
programs, and on individual sources subject to title V operating 
permits are discussed in Section V of this document.

C. Legal Justification for Proposed Action

    This action is proposed pursuant to CAA sections 502(b) and 
502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), which direct the Administrator 
of the EPA to promulgate regulations establishing state operating 
permit programs and give the Administrator authority to establish a 
federal operating permit program.
    The EPA proposes to remove the affirmative defense provisions from 
the part 70 and 71 regulations in order to ensure that the federal and 
state title V operating permit programs operate within the bounds 
established by

[[Page 38650]]

Congress in the 1990 CAA Amendments. Regarding these boundaries, the 
D.C. Circuit's opinion in NRDC v. EPA is instructive as to the 
enforcement structure envisioned by Congress, as well as the role of 
affirmative defense provisions within the EPA's regulations 
implementing the CAA. As discussed in Section III.B.1 of this document, 
the court in NRDC v. EPA determined that an affirmative defense 
provision promulgated by the EPA for the Portland cement industry under 
CAA section 112 exceeded the agency's statutory authority. In doing so, 
the D.C. Circuit based its holding on CAA sections 304(a) and 
113(e)(1).
    CAA section 304(a) grants ``any person'' the right to ``commence a 
civil action . . . against any person . . . who is alleged to have 
violated (if there is evidence that the alleged violation has been 
repeated) or to be in violation of . . . an emission standard or 
limitation'' under the CAA. 42 U.S.C. 7604(a). Section 304(a) also 
provides that ``[t]he [federal] district courts shall have 
jurisdiction, without regard to the amount in controversy or the 
citizenship of the parties, to enforce such an emission standard or 
limitation . . . and to apply any appropriate civil penalties.'' Id. 
CAA section 113(e)(1) establishes a number of factors that courts must 
consider when determining the amount of any penalties assessed in civil 
actions under section 304(a). See 42 U.S.C. 7413(e)(1).
    The D.C. Circuit indicated that these statutory provisions 
precluded the EPA from promulgating affirmative defense provisions that 
a source could use in civil enforcement suits. The court did not remand 
the regulation to the EPA for better explanation of the legal basis for 
an affirmative defense; the court instead vacated the affirmative 
defense and indicated that there could be no valid legal basis for such 
a provision because it contradicted fundamental requirements of the CAA 
concerning the authority of courts in judicial enforcement of CAA 
requirements. As the court explained:

    By its terms, Section 304(a) clearly vests authority over 
private suits in the courts, not EPA. As the language of the statute 
makes clear, the courts determine, on a case-by-case basis, whether 
civil penalties are ``appropriate.'' By contrast, EPA's ability to 
determine whether penalties should be assessed for Clean Air Act 
violations extends only to administrative penalties, not to civil 
penalties imposed by a court. . . . [U]nder this statute, deciding 
whether penalties are ``appropriate'' in a given private civil suit 
is a job for the courts, not for EPA.'' \25\

    \25\ NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
---------------------------------------------------------------------------

The court also noted that ``EPA cannot rely on its gap-filling 
authority to supplement the Clean Air Act's provisions when Congress 
has not left the agency a gap to fill.'' \26\
---------------------------------------------------------------------------

    \26\ Id. at 1064.
---------------------------------------------------------------------------

    The D.C. Circuit's holding in NRDC v. EPA is especially pertinent 
here.\27\ Like the Portland cement NESHAP at issue in the NRDC v. EPA 
case, the provisions at issue in this proposal are also regulations 
promulgated by the EPA to implement programs under the CAA. The 
affirmative defense for malfunctions in the Portland cement NESHAP and 
the affirmative defense for emergencies in the EPA's part 70 and part 
71 regulations are functionally similar provisions that operate in 
essentially identical ways to establish affirmative defenses in civil 
enforcement actions. Moreover, the EPA believes that the reasoning of 
the court's decision in NRDC v. EPA applies more broadly than to the 
specific facts of the case for several reasons. The EPA notes that the 
court's decision did not turn upon the specific provisions of CAA 
section 112. Although the court only evaluated the legal validity of an 
affirmative defense provision created by the EPA in conjunction with 
specific standards applicable to manufacturers of Portland cement, the 
court based its decision upon the provisions of sections 113 and 304 
that pertain to enforcement of CAA requirements more broadly, including 
to emission limits in title V permits. Sections 113 and 304 pertain to 
administrative and judicial enforcement generally and are in no way 
limited to enforcement of emission limitations promulgated by the EPA 
under section 112. Thus, the EPA does not think that the mere fact that 
the court only addressed the legality of an affirmative defense 
provision in this particular context means that the court's 
interpretation of sections 113 and 304 does not also apply more 
broadly. To the contrary, the EPA sees no reason why the logic of the 
court concerning sections 113 and 304 would not apply to the title V 
emergency affirmative defense provisions, as well.
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    \27\ The EPA's interpretation of the NRDC v. EPA case as it 
affects the affirmative defense provisions in parts 70 and 71 is 
similar to the interpretation of the case as articulated in the SSM 
SIP Call. More information on the EPA's interpretation of the NRDC 
v. EPA ruling can be found in the Final SSM SIP Call and the August 
2014 Supplemental Proposal. See SSM SIP Call, 80 FR 33851; SSM SIP 
Call Supplemental Proposal, 79 FR 55929.
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    In light of the court's decision, the EPA now interprets the 
enforcement structure of the CAA, embodied in section 113 and section 
304, to preclude affirmative defense provisions that would operate to 
limit a court's authority or discretion to determine the appropriate 
remedy in an enforcement action. CAA section 304(a) grants the federal 
district courts the jurisdiction to determine liability and to impose 
penalties in enforcement suits brought by citizens. Similarly, section 
113(b) provides courts with explicit jurisdiction to determine 
liability and to impose remedies of various kinds, including injunctive 
relief, compliance orders, and monetary penalties, in judicial 
enforcement proceedings. These grants of jurisdiction come directly 
from Congress, and the EPA is not authorized to alter or eliminate this 
authority under the CAA or any other law. With respect to monetary 
penalties, CAA section 113(e) explicitly includes the factors that 
courts and the EPA are required to consider in the event of judicial or 
administrative enforcement for violations of CAA requirements, 
including title V permit provisions. Because Congress has already given 
federal courts the authority to determine what monetary penalties are 
appropriate in the event of judicial enforcement for a violation of a 
title V permit provision, neither the EPA nor states can alter or 
eliminate that authority by superimposing restrictions on the authority 
and discretion granted by Congress to the courts. Affirmative defense 
provisions by their nature purport to limit or eliminate the authority 
of federal courts to determine liability or to impose remedies through 
factual considerations that differ from, or are contrary to, the 
explicit grants of authority in section 113(b) and section 113(e). 
Therefore, these provisions are not appropriate under the CAA, no 
matter what type of event they apply to, what criteria they contain, or 
what forms of remedy they purport to limit or eliminate. This is true 
for regulations promulgated under CAA sections 111 and 112, SIP 
provisions approved by the EPA, and regulations promulgated under title 
V of the CAA. Thus, just as the EPA revisited affirmative defenses in 
SIP provisions in light of the NRDC v. EPA opinion, the EPA is 
reevaluating its interpretation of the CAA relative to the emergency 
affirmative defense provisions contained in its part 70 and part 71 
regulations, and is proposing to remove those provisions because they 
are not consistent with the CAA's enforcement structure.
    Since the 2014 NRDC v. EPA decision, and in order to ensure 
consistency with the CAA's enforcement structure, the EPA has been 
omitting new affirmative defense provisions and removing existing

[[Page 38651]]

affirmative defense provisions throughout many CAA program areas that 
establish emission limitations contained in title V permits. However, 
the title V emergency affirmative defense provisions apply regardless 
of whether there is an affirmative defense also found in the underlying 
applicable requirements. See 40 CFR 70.6(g)(5) and 71.6(g)(5). As a 
result, sources could seek to assert this affirmative defense in title 
V enforcement cases for noncompliance with emission limitations derived 
from applicable requirements that do not otherwise contain such an 
affirmative defense for emergencies. The continued existence of the 
title V emergency affirmative defense provisions thus contradicts and 
compromises the EPA's on-going efforts to ensure that underlying 
regulations are applied consistently with the CAA.
    The EPA maintains that the part 70 and part 71 emergency 
affirmative defense provisions are affirmative defenses to enforcement 
actions and are not ``exemptions'' from otherwise applicable emissions 
limitations. However, as an alternative but additional justification, 
to the extent that the emergency affirmative defense provisions in part 
70 and part 71 could be interpreted to establish an exemption or 
exclusion from emission limits (rather than merely an affirmative 
defense to penalties in the event of a violation), these provisions 
would still run contrary to the CAA's requirements and require removal. 
As previously noted,\28\ under Sierra Club v. Johnson,\29\ the CAA 
requires that emission limitations must apply continuously and cannot 
contain exemptions, conditional or otherwise. Therefore, even if 
characterized as an exemption or exclusion from otherwise applicable 
limits, the emergency affirmative defense provisions would, 
nonetheless, run afoul of the CAA and Sierra Club v. Johnson, and 
should, on that alternative basis, be removed.
---------------------------------------------------------------------------

    \28\ See footnote 12.
    \29\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

V. Implementation

A. Implementing These Changes in Part 70 State Operating Permit 
Programs

    This section discusses the actions that the EPA anticipates state, 
local, and tribal permitting authorities \30\ would need to take (if 
this proposed rule is finalized in substantially the same form) in 
order to ensure that their operating permit programs are consistent 
with the proposed revisions to the EPA's part 70 regulations and the 
CAA's enforcement structure. The EPA welcomes comments on how best to 
address the implementation consequences of the proposed removal of 40 
CFR 70.6(g).
---------------------------------------------------------------------------

    \30\ As noted in footnote 1, the term ``state'' as used 
throughout this preamble refers to all state, local and tribal 
permitting authorities that administer approved part 70 programs.
---------------------------------------------------------------------------

1. Programs That Do Not Contain Emergency Affirmative Defense 
Provisions
    As discussed in Section III.A of this document, the section 70.6(g) 
emergency provision has never been a required element of part 70 
operating permit programs. For states that have not adopted the section 
70.6(g) emergency provision, or any similar affirmative defense 
provision, into their part 70 operating permit programs, no further 
action would be required to comply with this rule as proposed. However, 
we expect that as a result of this rulemaking, it may be necessary for 
states that have adopted an affirmative defense in their part 70 
programs to take the actions described in the following subsections.
2. Programs That Contain Emergency Affirmative Defense Provisions
    The EPA's existing part 70 regulations provide for state program 
revisions if part 70 is revised and the EPA determines that such 
conforming changes are necessary. See 40 CFR 70.4(a) and 70.4(i). 
Therefore, as a result of this proposed regulatory action to remove 40 
CFR 70.6(g) and 71.6(g), state operating permit programs that contain 
an emergency affirmative defense may have to take appropriate actions 
to remain consistent with the CAA and the EPA's part 70 regulations. As 
discussed in more detail in the following subsections, the EPA is 
requesting comment on whether revisions to certain approved state 
programs may be necessary if the EPA removes 40 CFR 70.6(g) and 
71.6(g).
a. Scope of Program Revisions That May Be Necessary if the Rule Is 
Finalized as Proposed
    Affirmative defense provisions included within a state's part 70 
(title V) program regulations--including provisions that are narrower 
in scope or more stringent than 40 CFR 70.6(g)--will generally 
implicate the same concerns that prompted the EPA to propose removing 
70.6(g) and 71.6(g) from the agency's regulations. The EPA expects that 
state programs containing provisions that mirror the exact language of 
70.6(g) would need to be revised if this proposed rule is finalized, as 
would state programs that have provisions that do not exactly mirror 
the language of 40 CFR 70.6(g), but nonetheless provide for title V 
affirmative defenses.\31\ In any case, the EPA invites comment on 
whether it may be necessary for states to revise programs containing 
any provisions that (1) purport to establish an affirmative defense to 
enforcement actions \32\ and (2) are included within the state's part 
70 (title V) program regulations. Anytime the phrases ``affirmative 
defense'' or ``emergency affirmative defense'' are used within this 
section, these phrases are intended to refer to all such provisions 
meeting these criteria. These criteria are intended to encompass 
provisions that initially would have been approved by the EPA as 
consistent with 40 CFR 70.6(g) and 70.4(b)(16). This action would not 
directly affect any affirmative defense provisions arising under other 
CAA applicable requirements, or state-only provisions outside of each 
state's approved part 70 operating permit programs.
---------------------------------------------------------------------------

    \31\ For example, affirmative defense provisions that refer to 
``upsets'' or ``malfunctions'' rather than ``emergencies'' would 
still implicate the same concerns.
    \32\ Additionally, any state program provisions based off of 
70.6(g) that purport to establish an ``exemption'' or ``exclusion'' 
to emission limitations (rather than, or in addition to, an 
affirmative defense for noncompliance) during emergencies, upsets, 
or malfunctions would also likely need to be removed. To the extent 
that an emergency defense is characterized as an exemption, this 
would run afoul of the CAA requirement that emission limitations 
must apply continuously and cannot contain exemptions. See Sierra 
Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 2008); SSM SIP Call, 80 FR 
33852.
---------------------------------------------------------------------------

    The EPA has begun to compile a tentative list of affirmative 
defense provisions within state programs that may eventually need to be 
removed. The EPA is including this list in the docket for this proposed 
rulemaking (EPA-HQ-OAR-2016-0186) for informational purposes only; this 
list is not an official determination as to the adequacy or inadequacy 
of any program provisions. The EPA seeks comment on whether there are 
additional title V affirmative defense provisions in state regulations 
or statutes that we have not yet identified, and whether any such 
provisions would or would not remain appropriate as part of a state's 
approved title V program if this proposed rule is finalized.
b. Form of Program Revisions
    Because the EPA believes that a large number of part 70 programs 
contain provisions resembling those that the agency proposes to 
eliminate, the EPA anticipates that it will be necessary for states to 
initiate conforming revisions to remove any affirmative defense 
provisions from their approved title V

[[Page 38652]]

operating permit programs if the EPA removes 40 CFR 70.6(g). The EPA 
seeks comment on this approach and on other possible approaches to 
ensure that state programs are consistent with the CAA and the EPA's 
part 70 regulations. However, the EPA does not anticipate that it would 
be appropriate for states to retain affirmative defense provisions 
within their approved part 70 programs. For example, if a state 
decided, in lieu of a program revision, to exercise its discretion to 
omit or remove affirmative defense provisions from all future title V 
operating permits, the state's approved part 70 program would still 
contain regulations inconsistent with the EPA's part 70 regulations and 
the CAA. Further, if an emergency provision remained in a state's 
approved program, a source could potentially attempt to invoke the 
provision as an affirmative defense during an enforcement proceeding, 
notwithstanding its absence from the source's individual title V 
permit. This result could undermine the enforcement of certain permit 
limitations and would be inconsistent with the enforcement structure of 
the CAA.
    Although the EPA expects that most states would elect to remove the 
emergency affirmative defense provisions from their part 70 program 
regulations, states could nonetheless choose to retain such affirmative 
defense provisions within their permitting regulations as state-only 
requirements in certain circumstances. In that case, states would have 
to ensure and make clear to the EPA that any remaining affirmative 
defense provisions are only available for alleged noncompliance with 
permit requirements arising solely from state law. Ideally, this would 
involve an amendment to state regulations to explicitly clarify the 
limited applicability of any remaining affirmative defense provisions; 
such a clarifying amendment could also effectively serve as an 
appropriate revision to the state's part 70 program. The EPA solicits 
comment on whether and to what extent it would be appropriate for 
states to retain state-only affirmative defense provisions if this 
proposed rule is finalized.
    Finally, states may also choose to remove any other provisions that 
reference 40 CFR 70.6(g) or similar state affirmative defense 
provisions in order to ensure clarity. These could include, but are not 
limited to, state regulations that incorporate by reference 40 CFR 
70.6(g), as well as any associated definitions, recordkeeping, or 
reporting requirements relating to the affirmative defense provisions 
affected by this rulemaking. States may also wish to retain a portion 
of the emergency provisions, such as the definition of ``emergency'' or 
certain reporting requirements, for purposes of supporting other 
regulations that do not involve an affirmative defense. This could be 
appropriate as long as any remaining provisions could not be 
interpreted to provide an affirmative defense to federally applicable 
requirements.
c. Procedure, Timing and Content of Program Revisions
    If this proposed rule is finalized, the EPA expects that it would 
be necessary for any states with approved part 70 operating permit 
programs that contain emergency affirmative defense provisions to 
remove any such provisions and submit program revisions to the EPA 
within 12 months after the final rule's effective date. For many 
programs, the EPA does not anticipate that additional state legislative 
authority will be required to enact these revisions. Therefore, the EPA 
believes that 12 months will be ample time for many states to make such 
a straightforward and narrow program revision. However, the EPA is 
considering whether it may be appropriate to provide individual states 
up to 24 months to submit program revisions if a state demonstrates 
that additional legislative authority is necessary to enact the program 
revisions.
    If this proposed rule is finalized, the EPA expects that state 
program revisions submitted to the agency should include a redline 
version of the specific changes made to the state's part 70 regulations 
to remove any emergency affirmative defense provisions. States may, but 
need not, include as part of their program revision submittals any 
other unrelated revisions to state program regulations.\33\ Each state 
should also include a brief statement of the legal authority that 
authorized this removal, which could take various forms depending on 
the specific circumstances of each state. Finally, to address how the 
program revisions would be implemented with respect to individual 
permits, each state should also include a schedule for the planned 
removal of these provisions from individual title V operating permits, 
as well as a description of the mechanism(s) that the state plans to 
use to remove these existing provisions. Further discussion of how 
these program revisions should be implemented in individual permits is 
presented in Section V.A.3 of this document.
---------------------------------------------------------------------------

    \33\ The EPA intends that any narrow program revisions that may 
be necessary if this rule is finalized could be expeditiously 
processed, whether submitted alone or with other program revisions.
---------------------------------------------------------------------------

    The EPA is specifically requesting comment on these program 
revision time frames and procedures from permitting authorities whose 
approved part 70 programs contain affirmative defense provisions. The 
EPA solicits additional comments from states with title V program 
provisions that may also be contained within SIPs as to any additional 
revisions that may be necessary if this rule is finalized.
3. Effect of This Rule on Current and Future State-Issued Operating 
Permits
    The eventual finalization of this rule would not have an automatic 
impact on sources currently operating under a title V permit, and any 
minimal resource burden to revise permits would likely be spread over 
many years. After a state makes any necessary revisions to its title V 
program, the EPA expects that revisions to operating permits to remove 
emergency affirmative defense provisions would generally occur in the 
ordinary course of business as the state issues new permits or reviews 
and revises existing permits. The options presented in the following 
subsections would afford states with the maximum flexibility to 
implement these changes while ensuring predictability for sources 
operating under title V permits.
a. Form of Permit Changes
    In order to implement program revisions that may be necessary if 
this rule is finalized as proposed, it may be necessary for states to 
remove title V emergency affirmative defense provisions that are 
currently included in any state-issued permits.\34\ Alternatively, 
states may choose to allow sources to retain affirmative defense 
provisions in their permits as state-only provisions. Any such 
remaining affirmative defense provisions must be clearly labeled within 
each permit as not applicable for federal law purposes to ensure that 
they are not available in enforcement actions for noncompliance with 
any federally-

[[Page 38653]]

enforceable emission limitations, as required by 40 CFR 70.6(b)(2).
---------------------------------------------------------------------------

    \34\ It is possible that individual operating permits may 
contain other provisions establishing affirmative defenses that are 
derived from other applicable requirements. As previously noted, 
this proposed rulemaking will not have any effect on affirmative 
defense provisions promulgated under any CAA requirements other than 
40 CFR 70.6(g) and 71.6(g). However, the source of such affirmative 
defense provisions should be clearly stated in each individual 
operating permit, to avoid confusion about the scope of such 
provisions.
---------------------------------------------------------------------------

b. Mechanisms and Timing of Permit Changes
    The EPA anticipates that states would have the flexibility to 
remove emergency provisions from title V permits through a number of 
different existing mechanisms, either through changes to individual 
permits or perhaps to multiple permits through more streamlined 
processes. As previously noted, if the proposed action is finalized, 
any necessary program revision submittals should reflect the planned 
schedule and mechanism for these permit changes. The EPA expects that 
states will follow the guidelines discussed in this preamble, but will 
consider other plans for revising title V permits that would not cause 
undue delay.
    First, states could require that permit applications address the 
removal of emergency provisions during the next periodic permit 
renewal, permit modification, or permit reopening, including those that 
occur as the result of other rulemakings. States using these mechanisms 
should ensure that these changes occur at the first possible occasion; 
in other words, the first situation in which the permitting authority 
must act on an individual permit after state program revisions are 
approved by the EPA. Moreover, because states have never been required 
by federal law to include these provisions in state-issued title V 
permits, the EPA also encourages states to exercise their discretion to 
cease including emergency affirmative defense provisions as early as 
practicable. In many cases, there will be no reason for states to wait 
for the EPA to take final action on this proposal to begin implementing 
this suggestion.\35\
---------------------------------------------------------------------------

    \35\ Of course, if currently-approved state program regulations 
require that this provision be included within individual title V 
operating permits, a state may not be able to exercise this 
discretion until program revisions are completed.
---------------------------------------------------------------------------

    Additionally, sources may apply for a permit modification from 
their permitting authority at any time. The EPA anticipates that the 
removal of an emergency affirmative defense would not trigger the 
significant modification procedures under 40 CFR 70.7(e)(4), and--
depending on the regulations in each state's approved title V program--
could be implemented using minor modification procedures. Finally, 
depending on the unique structure of each state's operating permit 
program, some states may also be able to remove these provisions from 
multiple existing permits in a single action, via mechanisms such as 
general permits or permits-by-rule. The EPA is requesting comment on 
how states could use existing permitting options to remove emergency 
affirmative defense provisions from title V permits in a more 
streamlined and expeditious manner.
    Overall, the EPA believes that addressing the omission or removal 
of emergency affirmative defense provisions from permits according to 
the existing state program mechanisms described in this subsection 
affords states sufficient flexibility to implement these changes and 
provides certainty to facilities operating under title V permits. Under 
the approaches currently being considered, the EPA anticipates that the 
removal of affirmative defense provisions from permits should generally 
occur in the ordinary course of business and should require essentially 
no additional burden on states or sources. The timing for these changes 
may coincide with similar changes to operating permits based on revised 
SIP provisions following the SSM SIP Call or changes to other 
applicable requirements, and it may be convenient and efficient for 
states to make all necessary changes to title V permits at the same 
time.

B. Implementing These Changes in the Part 71 Federal Operating Permit 
Program

    Although the title V operating permit program is typically 
implemented by state and local permitting authorities through EPA-
approved part 70 programs, in certain circumstances the EPA has assumed 
direct permitting authority over sources through its part 71 program. 
The EPA administers the part 71 federal program in most areas of Indian 
country (however, one tribe--the Southern Ute Tribe--has an approved 
part 70 program, and another--the Navajo Nation--has been delegated 
part 71 implementation authority),\36\ on the Outer Continental Shelf 
(where there is no state permitting authority), as well as for specific 
sources where the EPA has determined that a state has not adequately 
implemented its part 70 program or satisfied an EPA objection to a 
permit.
---------------------------------------------------------------------------

    \36\ The EPA has delegated a portion of its part 71 permitting 
authority to the Navajo Nation EPA (NNEPA) through a delegation 
agreement, such that NNEPA assumes the responsibility for specific 
aspects of program administration under the part 71 regulations, 
including the authority to issue part 71 operating permits to 
sources.
---------------------------------------------------------------------------

    In some cases where the EPA administers its part 71 program, the 
EPA has included in its federally-issued operating permits the 
emergency affirmative defense provision found in 40 CFR 71.6(g). If 40 
CFR 71.6(g) is removed, the federal (including delegated) program rules 
would no longer include regulatory authority for incorporating this 
emergency affirmative defense in permits. Therefore, in order to ensure 
that part 71 programs are implemented consistent with the proposed 
revisions to the part 71 regulations, the EPA or delegated permitting 
authority should remove emergency affirmative defense provisions that 
are currently included in title V permits at the next permit action 
following the effective date of the final rule. Because the EPA has 
always considered the emergency provisions to be discretionary permit 
terms, the EPA has omitted emergency affirmative defense provisions 
from part 71 permits that it has issued since the D.C. Circuit's 2014 
NRDC v. EPA decision. The EPA plans to continue to exercise its 
discretion to not include emergency affirmative defense provisions in 
future EPA-issued operating permits.

C. Effect on Sources Potentially Subject to Enforcement Proceedings

    The legal rights and obligations of individual sources potentially 
subject to enforcement proceedings would not be adversely affected by 
the removal of emergency affirmative defense provisions from their 
title V permits.\37\ The absence of an affirmative defense provision in 
a source's title V permit does not mean that all exceedances of 
emission limitations in a title V permit will automatically be subject 
to enforcement or automatically be subject to imposition of particular 
remedies. Pursuant to the CAA, all parties with authority to bring an 
enforcement action to enforce title V permit provisions (i.e., the 
state, the EPA, or any parties who qualify under the citizen suit 
provision of CAA section 304) have enforcement discretion that they may 
exercise as they deem appropriate in any given circumstances. For 
example, if the excess emissions caused by an emergency occurred 
despite proper operation of the facility, and despite the permittee 
taking all reasonable steps to minimize excess emissions, then these 
parties may decide that no enforcement action is warranted. In the 
event that any party decides that an enforcement action is warranted, 
then it has enforcement discretion with respect to what remedies to 
seek from the court for the violation (e.g., injunctive relief,

[[Page 38654]]

compliance order, monetary penalties, or all of the above), as well as 
the type of injunctive relief and/or amount of monetary penalties 
sought.\38\
---------------------------------------------------------------------------

    \37\ The removal of these provisions from individual operating 
permits has similar implications to sources as the removal of the 
SSM provisions subject to the SSM SIP Call. See SSM SIP Call, 80 FR 
33852.
    \38\ The EPA notes that only the state and the EPA have 
authority to seek criminal penalties for knowing and intentional 
violation of CAA requirements. The EPA has this explicit authority 
under section 113(c).
---------------------------------------------------------------------------

    Further, courts have the discretion under section 113 to decline to 
impose penalties or injunctive relief in appropriate cases. In the 
event of an enforcement action for an exceedance of an emission limit 
in a title V permit, a source can elect to assert any common law or 
statutory defenses that it determines are supported, based upon the 
facts and circumstances surrounding the alleged violation. Under 
sections 304(a) and 113(b), courts have authority to impose injunctive 
relief, issue compliance orders, assess monetary penalties or fees and 
award any other appropriate relief. Under section 113(e), courts are 
required to consider the enumerated factors when assessing monetary 
penalties, including the source's compliance history, good faith 
efforts to comply the duration of the violation, and ``such other 
factors as justice may require.'' If the exceedance of the emission 
limitation occurs due to an emergency, the source retains the ability 
to defend itself in an enforcement action and to oppose the imposition 
of particular remedies or to seek the reduction or elimination of 
monetary penalties, based on the specific facts and circumstances of 
the emergency event. Thus, elimination of an emergency affirmative 
defense provision that purported to take away the statutory 
jurisdiction of the court to exercise its authority to impose remedies 
does not disarm sources in potential enforcement actions. Sources would 
retain all of the equitable arguments they previously could have made; 
they must simply make such arguments to the reviewing court as 
envisioned by Congress in section 113(b) and section 113(e). Congress 
vested the courts with the authority to judge how best to weigh the 
evidence in an enforcement action and determine appropriate remedies.
    The eventual removal of such impermissible emergency affirmative 
defense provisions from state operating permit programs and individual 
title V permits will likely be necessary to preserve the enforcement 
structure of the CAA, to preserve the authority of courts to adjudicate 
questions of liability and remedies in judicial enforcement actions, 
and to preserve the potential for enforcement by states, the EPA, and 
other parties under the citizen suit provision as an effective 
deterrent to violations. In turn, this deterrent encourages sources to 
be properly designed, maintained, and operated and, in the event of 
violation of permitted emission limitations, to take appropriate action 
to mitigate the impacts of the violation. In this way, as intended by 
the existing enforcement structure of the CAA, sources can mitigate the 
potential for enforcement actions against them and the remedies that 
courts may impose upon them in such enforcement actions, based upon the 
facts and circumstances of the event.

VI. Environmental Justice Considerations

    The EPA believes the human health or environmental risk addressed 
by this proposed action would not have potential disproportionately 
high and adverse human health or environmental effects on minority, 
low-income or indigenous populations because it would not adversely 
affect the level of protection provided to human health or the 
environment. This action simply proposes to remove emergency 
affirmative defense provisions from the EPA's operating permit program 
regulations. If the proposed rule is finalized, it may also be 
necessary for state, local and tribal permitting authorities to remove 
similar affirmative defense provisions from program regulations and 
from individual title V operating permits. None of these changes would 
alter the obligations of sources to comply with the emission limits and 
other standards contained within title V operating permits. However, 
this proposed rulemaking could encourage sources to comply with the 
terms of their operating permits at all times to the maximum extent 
practicable. This could potentially result in improved air quality for 
communities living near sources of air pollution as well as the broader 
population. Thus, this proposed rulemaking will not adversely affect 
the level of protection to human health or the environment for any 
populations.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control numbers 2060-0243 (for part 70 state operating permit programs) 
and 2060-0336 (for part 71 federal operating permit program). In this 
action, the EPA is proposing to remove certain provisions from the 
EPA's regulations, which if finalized could result in the removal of 
similar provisions from state, local, and tribal operating permit 
programs and individual permits. Consequently, states could eventually 
be required to submit program revisions to the EPA outlining any 
necessary changes to their regulations and their plans to remove 
provisions from individual permits. However, this proposed action will 
not involve any requests for information, recordkeeping or reporting 
requirements, or other requirements that would constitute an 
information collection under the PRA.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
proposed action will not impose any requirements on small entities. 
Entities potentially affected directly by this proposal include state, 
local, and tribal governments, and none of these governments would 
qualify as a small entity. Other types of small entities, including 
stationary sources of air pollution, are not directly subject to the 
requirements of this action.

D. Unfunded Mandates Reform Act (URMA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no 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.

[[Page 38655]]

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

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. One tribal government (the 
Southern Ute Indian Tribe) currently administers an approved part 70 
operating permit program, and one tribal government (the Navajo Nation) 
currently administers a part 71 operating permit program pursuant to a 
delegation agreement with the EPA. These tribal governments may be 
required to take actions if this proposed rule is finalized, including 
program revisions (for part 70 programs) and eventual permit revisions, 
but these actions will not require substantial compliance costs. The 
EPA solicits comment from affected tribal governments on the 
implications of this proposed rulemaking.

G. Executive Order 13045: Protection of Children From Environmental 
Health 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. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

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

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

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations because it does not affect the level of 
protection provided to human health or the environment. The results of 
this evaluation are contained in Section VI of this document titled, 
``Environmental Justice Considerations.''

VIII. Statutory Authority

    The statutory authority for this proposed action is provided in CAA 
sections 502(b) and 502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), which 
direct the Administrator of the EPA to promulgate regulations 
establishing state operating permit programs and give the Administrator 
the authority to establish a federal operating permit program. 
Additionally, the Administrator determines that this action is subject 
to the provisions of CAA section 307(d), which establish procedural 
requirements specific to rulemaking under the CAA. CAA section 
307(d)(1)(V) provides that the provisions of CAA section 307(d) apply 
to ``such other actions as the Administrator may determine.'' 42 U.S.C. 
7607(d)(1)(V).

List of Subjects

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

40 CFR Part 71

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

    Dated: June 3, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


Sec.  70.6  [Amended]

0
2. In Sec.  70.6, remove paragraph (g).

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

0
3. The authority citation for part 71 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


Sec.  71.6  [Amended]

0
4. In Sec.  71.6, remove paragraph (g).

[FR Doc. 2016-14104 Filed 6-13-16; 8:45 am]
 BILLING CODE 6560-50-P


