[Federal Register Volume 85, Number 26 (Friday, February 7, 2020)]
[Rules and Regulations]
[Pages 7232-7246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01477]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0770; FRL-10004-01-Region 6]


Withdrawal of Finding of Substantial Inadequacy of Implementation 
Plan and of Call for Texas State Implementation Plan Revision--
Affirmative Defense Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) Region 6 Regional Administrator 
finds that the affirmative defense provisions in the State 
Implementation Plan (SIP) for the State of Texas applicable to excess 
emissions that occur during certain upset events and unplanned 
maintenance, startup, and shutdown activities are consistent with CAA 
requirements. Accordingly, EPA Region 6 is withdrawing the SIP call 
issued to Texas that was published on June 12, 2015. This action is 
limited to the SIP call issued to Texas and does not otherwise change 
or alter the EPA's June 12, 2015 action.

DATES: This final action is effective on March 9, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2018-0770. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information 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 in hard copy form. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500, 
Dallas, Texas 75270.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, EPA Region 6 Office, 
SO2 and Regional Haze Section (6ARSH), 1201 Elm Street, 
Suite 500, Dallas, TX 75270, 214-665-6691, Shar.Alan@epa.gov. To 
inspect the hard copy materials, please schedule an appointment with 
Alan Shar.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

Definitions

    For the purpose of this document, the following definitions apply:

    i. The word Act or initials CAA mean or refer to the Clean Air 
Act.
    ii. The initials EPA mean or refer to the United States 
Environmental Protection Agency.
    iii. The initials MSS mean unplanned Maintenance, Startup or 
Shutdown activities, specific to Texas regulations.
    iv. The term Malfunction means a sudden and unavoidable 
breakdown of process or control equipment.
    v. The initials NAAQS mean National Ambient Air Quality 
Standards.
    vi. The initials NESHAP mean National Emission Standards for 
Hazardous Air Pollutants.
    vii. The initials OAQPS mean the Office of Air Quality Planning 
and Standards.
    viii. The initials OMB mean the Office of Management and Budget.
    ix. The initials PSD mean Prevention of Significant 
Deterioration.
    x. The terms EPA Region 6 and Region 6 refer to the United 
States Environmental Protection Agency, Region 6, located in Dallas, 
Texas.
    xi. The initials RTC mean Response To Comment.
    xii. The initials SIP mean State Implementation Plan.
    xiii. The word State means the State of Texas, unless the 
context indicates otherwise.
    xiv. The initials STEERS mean the State of Texas Environmental 
Electronic Reporting System.
    xv. The term Shutdown means, generally, the cessation of 
operation of a source.
    xvi. The initials SSM mean Startup, Shutdown, or Malfunction.
    xvii. The term Startup means, generally, the setting in 
operation of a source.
    xviii. The initials TAC mean the Texas Administrative Code.
    xix. The initials TCEQ mean the Texas Commission on 
Environmental Quality.

Table of Contents

I. Summary of the Final Action
II. Background
    A. Clean Air Act and the Texas SIP
    B. Affirmative Defense Provisions in the Texas SIP
III. Evaluation of the Affirmative Defense Provisions in the Texas 
SIP
    A. Summary of Proposal
    B. Final Action
    C. Comments and Responses
IV. Final Action
V. Statutory and Executive Order Reviews

I. Summary of the Final Action

    In this document, Region 6 is making a finding that the affirmative 
defense provisions in Texas's SIP applicable to excess emissions that 
occur during upsets (30 TAC 101.222(b)), unplanned events (30 TAC 
101.222(c)), upsets with respect to opacity limits (30 TAC 101.222(d)), 
and unplanned events with respect to opacity limits (30 TAC

[[Page 7233]]

101.222(e)) do not make Texas's SIP substantially inadequate to meet 
the requirements of the Act. Accordingly, Region 6 is withdrawing the 
SIP call issued to Texas that was published on June 12, 2015 (80 FR 
33968-9).

II. Background

    The background for this action is discussed in detail in our April 
29, 2019 (84 FR 17986) proposed action. In that document, Region 6 
invited comment on its belief that the best policy may be to permit 
certain affirmative defense provisions in SIPs, consistent with the 
court's decision in Luminant Generation v. EPA, 714 F.3d 841 (5th Cir. 
2013), cert. denied, 134 S. Ct. 387 (2013). See 84 FR 17990. Region 6 
recognized that such a policy, if adopted, would depart from the policy 
set forth in the EPA's 2015 Startup, Shutdown and Malfunction (SSM) SIP 
Action.\1\ EPA Region 6 also proposed to make a finding that the 
affirmative defense provisions in the Texas SIP applicable to excess 
emissions that occur during certain upset events \2\ and unplanned 
maintenance, startup, or shutdown activities \3\ would be consistent 
with CAA requirements if the alternative interpretation were adopted. 
Accordingly, Region 6 proposed to withdraw the SIP call \4\ issued to 
Texas that was published on June 12, 2015.
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    \1\ See section XI.F of the Statement of the EPA's SSM SIP 
Policy as of 2015 as set forth in ``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 Rule'' 
(80 FR 33840, 33981-2).
    \2\ See 30 TAC 101.1(110).
    \3\ See 301 TAC 101.1(109).
    \4\ ``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 Rule.'' (80 FR 33840), June 12, 
2015. (2015 SSM SIP Action).
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    The 60-day public comment period closed on June 28, 2019, and 
Region 6 received numerous comments on the proposed action. The public 
comments are included in the publicly posted docket associated with 
this action at www.regulations.gov. Region 6 reviewed all public 
comments received on the proposed action and considered them before 
finalizing this action. In this preamble, Region 6 provides a summary 
of certain significant comments received on the 2019 Proposal and the 
Region's response to those comments. The Response To Comment (RTC) 
document for this action summarizes and responds to all other relevant 
comments received. The RTC document may be found in the docket for this 
action.

A. Clean Air Act and the Texas SIP

    The CAA creates a framework for cooperative state and Federal 
programs to prevent and control air pollution providing states with the 
``primary responsibility'' for prevention and control of air pollution 
and flexibility for specific state needs and priorities.\5\ The Act 
requires the EPA to identify pollutants that could endanger the public 
health and welfare and to establish national ambient air quality 
standards (NAAQS), which the EPA has done for six criteria pollutants. 
Each state prepares a State Implementation Plan (SIP) that identifies 
the controls and programs the state will use to attain and maintain the 
NAAQS.\6\ In Texas, the Texas Commission on Environmental Quality 
(TCEQ) is the State agency responsible for implementing the 
requirements of the CAA related to SIPs. Since the EPA's approval of 
the initial Texas SIP in 1972, there has been a separate regulatory 
control strategy for unauthorized emissions \7\ due to malfunction 
events based on the acknowledgement that imposition of civil penalties 
may not be appropriate every time unauthorized emissions result from 
such events. The regulatory regime has evolved since 1972, with each 
iteration tightening requirements. In 2005, TCEQ adopted the 
affirmative defenses found at 30 TAC 101.222(b)-(e).\8\ The EPA 
approved these affirmative defense provisions related to upsets and 
unplanned maintenance, startup, or shutdown (MSS) activities as a 
revision to the Texas SIP in November 2010.\9\ The EPA subsequently 
issued a SIP call for these provisions as part of its 2015 SSM SIP 
Action based on the position that the affirmative defense provisions 
made the SIP substantially inadequate to meet the requirements of the 
Act. The 2015 SSM SIP Action included SIP calls for 45 jurisdictions in 
36 states. For more information concerning the SIP call issued to 
Texas, see section II.(C) of the proposed action (84 FR at 17988). On 
March 15, 2017, TCEQ petitioned the EPA to reconsider the SIP call 
issued to Texas in the 2015 SSM SIP Action.
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    \5\ 42 U.S.C. 7401(a)(3); 42 U.S.C. 7407(a); Train v. NRDC, 421 
U.S. 60, 79 (1975).
    \6\ 42 U.S.C. 7407(a) & 7410(a).
    \7\ See 30 TAC 101.1(108).
    \8\ See 30 Texas Register 8884 (Dec. 30, 2005), codified at 30 
TAC 101.222.
    \9\ 75 FR 68989 (Nov. 10, 2010).
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B. Affirmative Defense Provisions in the Texas SIP

    As stated above, the EPA approved the affirmative defense 
provisions found at 30 TAC 101.222(b)-(e) as a revision to the Texas 
SIP in November 2010.\10\ These provisions provide a narrowly tailored 
affirmative defense for emissions that exceed applicable emissions 
limitations that occur during upsets and unplanned MSS activities and 
are considered functionally equivalent to malfunctions. That is, the 
affirmative defense provisions in the EPA-approved Texas SIP apply to 
unplanned and unavoidable upset events and unplanned MSS activities 
that are not part of normal or routine operations and arise from sudden 
and unforeseeable events beyond the control of the operator. In 
addition, the affirmative defense provisions are inapplicable to 
emission events determined to be excessive \11\ based on a number of 
criteria including frequency, duration, and impact on human health, and 
are unavailable in criminal actions or civil enforcement actions 
seeking administrative technical orders and actions for injunctive 
relief. In the context of an enforcement proceeding,\12\ an affirmative 
defense is a response or defense put forward by a defendant, who bears 
the burden of proof, and the merits of which are independently and 
objectively evaluated in a judicial or administrative proceeding. See 
section IV.A of the proposed action for more information (84 FR 17991-
92). The EPA's 2010 approval of the Texas SIP revision adding these 
affirmative defense provisions was subsequently challenged in court and 
upheld as reasonable under the Act by the U.S. Court of Appeals for the 
Fifth Circuit in Luminant. 714 F.3d 841.
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    \10\ Id.
    \11\ To determine whether an emissions event or emissions events 
are excessive, the following factors are evaluated: (1) The 
frequency of the facility's emissions events; (2) the cause of the 
emissions event; (3) the quantity and impact on human health or the 
environment of the emissions event; (4) the duration of the 
emissions event; (5) the percentage of a facility's total annual 
operating hours during which emissions events occur; and (6) the 
need for startup, shutdown, and maintenance activities. See 30 TAC 
101.222(a). The current EPA-approved Texas SIP does not provide any 
affirmative defense for an emissions event or emissions events that 
are determined to be excessive emission events. Such events trigger 
a requirement to develop a corrective action plan and are subject to 
a penalty action. See 30 TAC 101.223.
    \12\ See Appendix 2 of the RTC document, found in the docket for 
this action, for more information on how TCEQ implements Texas 
affirmative defense provisions.

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[[Page 7234]]

III. Evaluation of the Affirmative Defense Provisions in the Texas SIP

A. Summary of Proposal

    Pursuant to 40 CFR 56.5(b), on October 16, 2018, Region 6 received 
EPA headquarters concurrence to convene a proceeding for 
reconsideration of the SIP call issued to Texas and to undertake a 
rulemaking pursuant to this reconsideration that may deviate from the 
EPA's national policy that provisions providing an affirmative defense 
to civil penalties for excess emissions during periods of startup, 
shutdown, malfunction, or maintenance are not consistent with CAA 
requirements. In the proposal, Region 6 explained that in light of the 
Luminant decision, a more appropriate policy approach may be to permit 
certain affirmative defense provisions in the SIPs of states in Region 
6, and invited comment on this issue. Region 6 explained that it may be 
inappropriate to impose a civil penalty on sources for sudden and 
unavoidable emissions caused by circumstances beyond the control of the 
owner or operator. Region 6 recognized that even equipment that is 
properly designed and maintained can sometimes fail. Further, because 
the specific affirmative defense provisions in the Texas SIP apply only 
to excess emissions that cannot be avoided by a source operator,\13\ 
removing these affirmative defense provisions from SIPs will not reduce 
emissions and therefore would not result in an environmental or public 
health or welfare benefit.
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    \13\ See 30 TAC 101.222(b)(2), 30 TAC 101.222(c)(2), 30 TAC 
101.222(d)(2), and 30 TAC 101.222(e)(2).
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    In the proposal, Region 6 analyzed 30 TAC 101.222(b), 30 TAC 
101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e) to see if such 
provisions were consistent with CAA requirements according to the 
policy under consideration. Based on this analysis, Region 6 proposed 
to determine that these provisions were consistent with CAA 
requirements and therefore are permissible components of a SIP if 
Region 6 were to adopt the new policy under consideration.

B. Final Action

    As explained in the proposal, Region 6 invited comment on whether 
to adopt a policy that certain affirmative defense provisions are 
generally permissible in SIPs in states in Region 6. However, after 
reviewing the comments received on Region 6's proposal, including on 
the regionwide policy under consideration, Region 6 has decided to 
limit this final action to the specific Texas affirmative defense 
provisions that were the subject of the 2015 SSM SIP Action and for 
which Texas filed a petition for reconsideration. Region 6 is not 
herein announcing any alternative CAA interpretation that would be 
applicable outside of Texas; Region 6 will determine whether to adopt a 
similar or other alternative interpretation for other Region 6 states 
if and when the need for such a determination arises in the future.
    After considering the public comments received, Region 6 is 
finalizing its proposed determination that 30 TAC 101.222(b), 30 TAC 
101.222(c), 30 TAC 101.222(d), and 30 TAC 101.222(e) are permissible 
affirmative defense provisions. As outlined in the 2015 SSM SIP Action, 
the EPA views all emissions that are in excess of applicable 
limitations as violations. Nevertheless, Region 6 recognizes that 
imposition of a penalty for sudden and unavoidable malfunctions caused 
by circumstances beyond the control of the owner or operator may not be 
appropriate. In the context of unplanned events or malfunctions, Region 
6 is cognizant of the reality that even process equipment or a control 
device that is properly designed, maintained, and operated can 
sometimes fail. At the same time, as outlined in the 2015 SSM SIP 
Action, the EPA has a fundamental responsibility under the CAA to 
ensure that SIPs provide for attainment and maintenance of the NAAQS 
and protection of air quality increments in the Prevention of 
Significant Deterioration (PSD) program. After balancing these 
considerations, Region 6 has concluded that the Texas SIP provisions 
containing affirmative defenses are appropriately narrowly tailored and 
will not undermine the fundamental requirement of attainment and 
maintenance of the NAAQS, or any other requirement of the CAA.
    In its 2010 approval, Region 6 determined that the Texas 
affirmative defense provisions met the criteria outlined in the 1999 
Guidance,\14\ which was the relevant guidance at the time outlining how 
the EPA would assess the approvability of affirmative defense 
provisions in SIPs. That guidance set forth the EPA's thinking at the 
time that if affirmative defense provisions met specific enumerated 
criteria, they generally would be consistent with the fundamental 
requirements of the CAA. Region 6 finds that the Texas affirmative 
defense provisions still meet the criteria from that memo, namely that 
the ``defendant'' has the burden of proof of demonstrating that:
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    \14\ ``State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown,'' Memorandum 
from Steven A. Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, to EPA Regional Administrators, September 20, 
1999 (1999 Guidance).

    1. The excess emissions were caused by a sudden, unavoidable 
breakdown of technology, beyond the control of the owner or 
operator;
    2. The excess emissions (a) did not stem from any activity or 
event that could have been foreseen and avoided, or planned for, and 
(b) could not have been avoided by better operation and maintenance 
practices;
    3. To the maximum extent practicable the air pollution control 
equipment or processes were maintained and operated in a manner 
consistent with good practice for minimizing emissions;
    4. Repairs were made in an expeditious fashion when the operator 
knew or should have known that applicable emission limitations were 
being exceeded. Off-shift labor and overtime must have been 
utilized, to the extent practicable, to ensure that such repairs 
were made as expeditiously as practicable;
    5. The amount and duration of the excess emissions (including 
any bypass) were minimized to the maximum extent practicable during 
periods of such emissions;
    6. All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality;
    7. All emission monitoring systems were kept in operation if at 
all possible;
    8. The owner or operator's actions in response to the excess 
emissions were documented by properly signed, contemporaneous 
operating logs, or other relevant evidence;
    9. The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance; and
    10. The owner or operator properly and promptly notified the 
appropriate regulatory authority.

    The affirmative defense provisions in the Texas SIP related to non-
excessive upset events that were approved in 2010, and that were 
subsequently made the subject of the SIP call issued in 2015 include a 
series of specific criteria enumerated in 30 TAC 101.222(b)(1)-(b)(11):

    ``(1) the owner or operator complies with the requirements of 
Sec.  101.201 of this title (relating to Emissions Event Reporting 
and Recordkeeping Requirements). In the event the owner or operator 
fails to report as required by Sec.  101.201(a)(2) or (3), (b), or 
(e) of this title, the commission will initiate enforcement for such 
failure to report and for the underlying emissions event itself. 
This subsection does not apply when there are minor omissions or 
inaccuracies that do not impair the commission's ability to review 
the event according to this rule, unless the owner or operator 
knowingly or intentionally falsified the information in the report;
    (2) the unauthorized emissions were caused by a sudden, 
unavoidable breakdown

[[Page 7235]]

of equipment or process, beyond the control of the owner or 
operator;
    (3) the unauthorized emissions did not stem from any activity or 
event that could have been foreseen and avoided or planned for, and 
could not have been avoided by better operation and maintenance 
practices or technically feasible design consistent with good 
engineering practice;
    (4) the air pollution control equipment or processes were 
maintained and operated in a manner consistent with good practice 
for minimizing emissions and reducing the number of emissions 
events;
    (5) prompt action was taken to achieve compliance once the 
operator knew or should have known that applicable emission 
limitations were being exceeded, and any necessary repairs were made 
as expeditiously as practicable;
    (6) the amount and duration of the unauthorized emissions and 
any bypass of pollution control equipment were minimized and all 
possible steps were taken to minimize the impact of the unauthorized 
emissions on ambient air quality;
    (7) all emission monitoring systems were kept in operation if 
possible;
    (8) the owner or operator actions in response to the 
unauthorized emissions were documented by contemporaneous operation 
logs or other relevant evidence;
    (9) the unauthorized emissions were not part of a frequent or 
recurring pattern indicative of inadequate design, operation, or 
maintenance;
    (10) the percentage of a facility's total annual operating hours 
during which unauthorized emissions occurred was not unreasonably 
high; and
    (11) the unauthorized emissions did not cause or contribute to 
an exceedance of the national ambient air quality standards (NAAQS), 
prevention of significant deterioration (PSD) increments, or to a 
condition of air pollution.''

    In Section 16, Table VII of the TSD \15\ prepared in conjunction 
with the final rule approving 30 TAC 101.222(a)-(g) of the Texas SIP 
(``2010 final action'') (November 10, 2010, 75 FR 68989), Region 6 
compared the criteria in 30 TAC 101.222(b)(1)-(b)(11) with the 
affirmative defense criteria outlined above and included in the EPA's 
1999 Guidance. In the 2010 final action, Region 6 concluded that the 
criteria in 30 TAC 101.222(b) are very similar to those of the 1999 
Guidance. Because EPA's thinking at the time was that, if affirmative 
defense provisions met the specific enumerated criteria from the 1999 
Guidance, they generally would be consistent with the fundamental 
requirements of the CAA, and so Region 6 approved the affirmative 
defense provisions into the Texas SIP.\16\ As discussed previously, 
that approval action was upheld by the Fifth Circuit. See Luminant, 714 
F.3d 841.
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    \15\ See Document ID No. EPA-R06-OAR-2006-0132-0018 at 
www.regulations.gov.
    \16\ Affirmative defense criteria similar to those found in 30 
TAC 101.222(b)(1)-(b)(10) (for non-excessive upset events) may be 
found at 30 TAC 101.222(c), 30 TAC 101.222(d), and 30 TAC 101.222(e) 
(for unplanned MSS activity, excess opacity events, and opacity 
events resulting from unplanned MSS activity, respectively).
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    In addition, 30 TAC 101.222(f) states that meeting the affirmative 
defense criteria does not remove any obligations to comply with any 
other existing permit, rule, or order provisions that are applicable to 
an emissions event or a maintenance, startup, or shutdown activity. It 
also states that an affirmative defense cannot apply to violations of 
federally promulgated performance or technology-based standards, such 
as those found in 40 CFR parts 60, 61, and 63. Additionally, the 
affirmative defense is available only for emissions that have been 
reported or recorded.
    Furthermore, 30 TAC 101.222(g) states that evidence of any past 
event with respect to which an owner or operator invoked the 
affirmative defense provision shall nonetheless be admissible in 
litigation proceedings and can be considered as relevant to demonstrate 
a frequent or recurring pattern of events, even if all of the criteria 
to receive an affirmative defense are proven.
    As outlined above, Region 6 is herein reaffirming the determination 
that these affirmative defense provisions in the Texas SIP are very 
similar to, and compatible with, the criteria outlined in the 1999 
Guidance. Because the affirmative defense provisions in the Texas SIP 
pertaining to upsets and unplanned events (malfunctions) are narrowly 
tailored, properly drafted, limited in scope or application, and 
effective in practice, EPA Region 6 finds that 30 TAC 101.222(b), 30 
TAC 101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e) are consistent 
with CAA requirements for SIPs and permissible affirmative defense 
provisions.

C. Comments and Responses

    In this subsection, Region 6 provides a summary of certain 
significant comments received on the 2019 Proposal and the Region's 
response to those comments. The RTC document, found in the docket for 
this action, summarizes and responds to all other relevant comments 
received.
1. Comments Alleging That EPA Region 6's Proposed Action Is 
Inconsistent With the CAA and D.C. Circuit Precedent
    Comment: Commenters alleged that the proposal is inconsistent with 
CAA sections 304(a) and 113(e). The commenters asserted that the EPA 
cannot allow the affirmative defense provisions in the Texas SIP 
because those provisions directly conflict with Congress's exclusive 
grant of jurisdiction to the federal district courts to provide 
remedies in civil suits brought under the CAA for violations of 
emissions standards. The commenters noted that under CAA section 304, 
Congress gave ``any person'' the right to sue over violations of 
emission standards established in SIPs. Citing to language in the NRDC 
opinion, the commenters noted that CAA section 304 creates a private 
right of action, and it is the judiciary, not any executive agency, 
that determines the scope--including the available remedies--of 
judicial power vested by the CAA. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 
2014). The commenters also pointed to CAA section 113(e), noting that 
Congress expressly requires courts to consider enumerated penalty 
assessment criteria when they decide the amount of civil penalties to 
apply when they find a violation of an emission limitation; weighing 
these criteria, courts decide on a case-by-case basis what penalty, if 
any, is appropriate. The commenters also cited to congressional intent 
by noting that CAA section 304(a) was amended in 1990 to provide 
district courts with the new authority to apply civil penalties, 
because Congress felt it was necessary for deterrence, restitution, and 
retribution. The commenters concluded that affirmative defenses which, 
if proven, prohibit federal district courts from imposing penalties are 
irreconcilable with this congressional intent.
    The commenters also took issue with the EPA's statement in the 
proposal that ``states have latitude to define in their SIPs what 
constitutes an enforceable emission limitation, so long as the SIP 
meets all applicable CAA requirements.'' \17\ The commenters assert 
that the EPA's claim is wrong for two reasons: (1) The CAA requires 
civil penalties be available as relief in a citizen enforcement case, 
so a SIP that limits that ability does not meet all the applicable CAA 
requirements; and (2) affirmative defense provisions are neither 
emission limitations nor control measures, but rather ancillary 
provisions that purport to limit the liability of a violating source, 
which is inconsistent with congressionally created remedies for 
violations of emission standards.
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    \17\ 84 FR 17990 (April 29, 2019).
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    Response: Region 6 disagrees with the commenters. This action is 
not illegal, arbitrary, or inconsistent with any

[[Page 7236]]

requirement of the CAA. The Act provides that, in the case of EPA 
enforcement and citizen suits, a federal district court ``shall have 
jurisdiction'' to assess civil penalties; in assessing the amount of a 
civil penalty, the court must consider the penalty assessment criteria 
outlined in CAA section 113(e). In 2013, in reviewing Region 6's 
approval of the same Texas SIP provisions in question here, the 
Luminant court held that approval was based upon a permissible 
interpretation of CAA section 113 and deserved deference. Region 6 
acknowledges that an effective enforcement program must be able to 
collect penalties to deter avoidable violations. However, Region 6 also 
acknowledges--as did the Luminant court--that, despite good practices, 
sources may be unable to meet emission limitations during periods of 
unplanned malfunctions due to events beyond the control of the owner or 
operator. The EPA finds it reasonable to determine that a SIP can 
provide for an affirmative defense against civil penalties for 
circumstances where it is not feasible to meet the applicable emission 
limits, and the narrowly tailored criteria that the source must prove 
can ensure that the source has made every effort to comply with those 
emission limitations. This is consistent with the CAA because the 
criteria set forth in the Texas SIP that a source must meet to assert 
the affirmative defenses are consistent with the penalty assessment 
criteria identified in CAA section 113, which are considered by the 
courts and the EPA in determining whether or not to assess a civil 
penalty for violations, and, if so, the amount. The Luminant court 
upheld the EPA's approval of the Texas affirmative defense provisions 
on that basis. See Luminant 714 F.3d 853 (acknowledging that the Texas 
affirmative defense criteria are consistent with the penalty assessment 
criteria in CAA section 113).
    In addition, the EPA's role, with respect to a SIP revision, is 
focused on reviewing the submission to determine whether it meets the 
applicable criteria of the CAA, and, where it does, section 110(k)(3) 
of the Act requires the EPA to approve the submission. In the context 
of a SIP, the EPA is not, as a matter of law or policy, exercising 
discretion to establish its own requirements for the state to implement 
beyond the requirements contained in the CAA. CAA section 110(a)(2)(A)-
(B) requires states to submit SIPs with emission limits and other 
control measures necessary or appropriate to meet CAA requirements, and 
CAA section 110(a)(2)(C) requires SIPs to include ``a program to 
provide for the enforcement'' of those emission control measures. In 
light of the latitude provided to states by Congress in CAA section 110 
for NAAQS implementation, Region 6 has determined that inclusion of 
Texas's affirmative defense provision in the SIP is appropriate due to 
the latitude that states have to define in their SIPs what constitutes 
an enforceable emission limitation, so long as the SIP meets all 
applicable CAA requirements.
    As explained in the proposal for this action, the differences in 
scope and relative balance of state and federal authority between CAA 
sections 110 and 112 suggest that the D.C. Circuit's reasoning in NRDC 
with respect to limits on federal agency authority under CAA section 
110 does not address the distinct question of whether a state may 
include affirmative defense provisions as part of its overall strategy 
for inclusion in their SIP submissions to the EPA under CAA section 
110. In the Luminant case, the environmental petitioners raised the 
same basic argument that was key to the D.C. Circuit's NRDC holding: 
Environmental petitioners argued that the EPA's approval of the Texas 
affirmative defense SIP provision conflicts with the CAA's provision 
that, in the case of EPA enforcement and citizen suits, a federal 
district court ``shall have jurisdiction'' to assess a ``civil 
penalty.'' 42 U.S.C. 7413(b); 7604(a). The Fifth Circuit, however, 
upheld as ``neither contrary to law nor in excess of [the EPA's] 
statutory authority'' the EPA's position that the Texas provision at 
issue here is narrowly tailored and consistent with the penalty 
assessment criteria in CAA section 113(e). In addition, the Fifth 
Circuit stated that the availability of the affirmative defense in the 
Texas SIP ``does not negate the district court's jurisdiction to assess 
civil penalties using the criteria outlined in [CAA section 113(e)], . 
. . it simply provides a defense, under narrowly defined circumstances, 
if and when penalties are assessed.'' Luminant, 714 F.3d at 853 fn.9.
    The commenters noted that Congress amended CAA section 304(a) in 
1990 to provide courts the additional authority to assess civil 
penalties in citizen suit actions because civil penalties were thought 
necessary for deterrence. Even accepting this characterization of 
Congress's intent, it has no bearing on the permissibility of the Texas 
affirmative defense provisions because the use of those provisions is 
limited to malfunctions, which are sudden, unavoidable, and beyond the 
control of the owner or operator. Among other factors, in order to use 
the Texas affirmative defense, a source owner or operator must show 
that all possible steps were taken to minimize the impact of the 
unauthorized emissions on air quality. Malfunctions, as defined in the 
Texas affirmative defense provision, cannot be deterred. Therefore, 
Region 6 maintains that in light of the Luminant decision, the 
appropriate policy is to consider the Texas affirmative defense 
provisions to be consistent with CAA requirements.
    Comment: The commenters asserted that the EPA fails to rationally 
explain why following the NRDC decision's statutory interpretation is 
inappropriate in light of Luminant. The commenters also noted EPA's 
claim that the application of the NRDC decision may be ``particularly 
inappropriate'' in light of Luminant is unexplained and conflicts with 
the 2015 SSM SIP Action. Furthermore, the commenters alleged that the 
proposal's change in position on affirmative defenses from the position 
expressed in the 2015 SSM SIP Action is irrational and cannot be 
reconciled with NRDC. Commenters particularly noted that the proposal 
fails to explain why the NRDC court's acknowledgment of Luminant 
matters or why it matters that Luminant upheld the EPA's prior 
interpretation at Chevron step two.
    The commenters also stated that the enforcement provisions of CAA 
sections 304 and 113 were the sole basis for the NRDC court striking 
down affirmative defenses, rather than the applicability of these 
provisions to CAA sections 112 or 110. The commenters pointed out that 
the NRDC court did not specifically evaluate the question of whether 
affirmative defenses are appropriate in section 110 SIPs, and the 
commenters disagreed with the EPA's statement that ``the NRDC decision 
did not foreclose the EPA's ability to allow affirmative defense 
provisions in section 110 SIPs.'' \18\ The commenters alleged that, as 
the NRDC court shows, the text, structure, context, purpose, and 
history of the CAA plainly demonstrate Congress's intent to give 
federal courts the authority and obligation to determine what penalties 
(if any) are appropriate in enforcement cases. The commenters asserted 
that the NRDC court's reasoning applies with equal force to citizen 
suits alleging violations of SIP emission limits and equally to any 
remedy Congress gave courts jurisdiction to order.
---------------------------------------------------------------------------

    \18\ 84 FR 17989 (April 29, 2019).
---------------------------------------------------------------------------

    The commenters stated that to provide a rational basis for its 
policy reversal, the EPA must evaluate whether

[[Page 7237]]

the reasoning of the NRDC decision applies to CAA section 110 and 
explain the reasons for choosing to disregard the NRDC court's logic. 
The commenters alleged that the EPA premises its policy reversal on a 
belief that CAA section 110 somehow overrides the CAA's enforcement 
provisions, relying on what they characterize as an outdated notion of 
``cooperative federalism'' that relies heavily on the Train and Union 
Electric decisions from the 1970s, which hold in keeping with what the 
commenters characterize as the antiquated notion that Congress deferred 
all specific decisions to the states as long as the result is 
compliance with national standards. The commenters asserted that the 
D.C. Circuit has since made clear that it has not suggested that states 
may develop SIPs free of extrinsic legal constraints, including those 
in the CAA, and that the EPA ignores subsequent amendments to the CAA 
that resulted in specific minimum requirements for SIPs in the Act, 
including specific control measures and permitting requirements. The 
commenters noted that demonstrating compliance with the national 
standards is not the sole measure for approval of a SIP revision.
    Response: At the outset, Region 6 notes that it maintains 
discretion and authority to change its CAA interpretation from a prior 
position. In FCC v. Fox, the U.S. Supreme Court stated an agency's 
obligation with respect to changing a prior policy quite plainly:

    We find no basis . . . for a requirement that all agency change 
be subjected to more searching review. The [Administrative 
Procedure] Act mentions no such heightened standard. And our opinion 
in State Farm neither held nor implied that every agency action 
representing a policy change must be justified by reasons more 
substantial than those required to adopt a policy in the first 
instance.``

FCC v. Fox Television Stations, 556 U.S. 502, 514 (2009).

    In cases where an agency is changing its position, the Court stated 
that a reasoned explanation for the new policy would ordinarily 
``display awareness that it is changing position'' and ``show that 
there are good reasons for the new policy.'' Id. at 515. However, the 
Court held that the agency ``need not demonstrate . . . that the 
reasons for the new policy are better than the reasons for the old one; 
it suffices that the new policy is permissible under the statute, that 
there are good reasons for it, and that the agency believes it to be 
better.'' Id. In cases where a new policy ``rests upon factual findings 
that contradict those which underlay its prior policy; or when its 
prior policy has engendered serious reliance interests that must be 
taken into account,'' the Court found that a more detailed 
justification might be warranted than what would suffice for a new 
policy. At the outset, it is important to note that the Luminant court 
upheld the EPA's approval of the very same affirmative defense 
provisions in the Texas SIP that are at issue in this action.\19\ 
Furthermore, the Luminant decision is the only existing court precedent 
that addresses the approvability of affirmative defense provisions in 
SIPs. The Luminant court held that the EPA acted consistent with 
statutory authority and upheld the EPA's interpretation that 
affirmative defenses against civil penalties are not inconsistent with 
CAA section 113 if the defense is narrowly tailored to address 
unplanned, unavoidable excess emissions in a manner that is consistent 
with the penalty assessment criteria set forth in CAA section 113(e). 
By contrast, the D.C. Circuit's NRDC decision only evaluated the 
validity of an affirmative defense provision in an emission standard 
created by the EPA itself under CAA section 112, and that decision 
expressly reserved judgment regarding the validity of an affirmative 
defense in the context of a SIP approved under CAA section 110. The 
NRDC ruling explicitly states, ``[w]e do not here confront the question 
whether an affirmative defense may be appropriate in a State 
Implementation Plan.'' 749 F.3d at 1064 n.2 (citing Luminant, 714 F.3d 
841). Therefore, the NRDC decision did not speak to the EPA's ability 
to allow for affirmative defense provisions in SIPs. Texas's narrowly 
tailored and limited affirmative defense SIP provisions for 
malfunctions, as upheld by the Fifth Circuit's Luminant decision, are 
consistent with CAA requirements and it is not necessary or appropriate 
to extend the D.C. Circuit's reasoning in NRDC to the specific 
affirmative defense provisions currently in the Texas SIP for the 
reasons discussed herein.
---------------------------------------------------------------------------

    \19\ Some commenters have noted that the claims asserted in the 
Luminant decision may not be relitigated in any future challenge to 
this action. The EPA reserves the right to assert this argument (or 
similar arguments) as a defense to this final action.
---------------------------------------------------------------------------

    The commenters assert that Region 6 is reading the provisions of 
CAA section 110 to override the CAA's enforcement provisions, including 
CAA sections 113(b) and 304(a), but this is not true. Rather, Region 6 
is reading all of these provisions together to authorize its approval 
of certain affirmative defense provisions in SIPs. SIPs are developed 
by the states under CAA section 110 and reflect the Act's core 
principle of cooperative federalism.\20\ CAA section 110 affords broad 
discretion to states in how to develop and implement air emission 
controls after the federal government establishes NAAQS to be achieved. 
Region 6 agrees with the commenters' position that the flexibility 
afforded states in the development of SIPs is not without limitations 
and that demonstrating compliance with NAAQS is not the sole measure 
for SIP approvals. However, Region 6 finds the commenters' claims that 
subsequent amendments to the CAA (concerning control measures and 
permitting requirements) were ignored are misplaced and not relevant to 
this action. Also, as noted in an earlier response, the congressionally 
stated reasons for the amendment to CAA section 304(a) in 1990 (to 
provide deterrence) are not relevant to determining the permissibility 
of affirmative defense provisions that are limited to unavoidable, 
unpreventable malfunctions (which are beyond the control of the owner 
or operator and therefore cannot be deterred). This flexibility, and 
state discretion, under CAA section 110 has been acknowledged 
repeatedly by the EPA in its actions and in court decisions on those 
Agency actions.\21\
---------------------------------------------------------------------------

    \20\ 42 U.S.C. 7401(a)(3); 42 U.S.C. 7407(a); Train v. NRDC, 421 
U.S. 60, 79 (1975).
    \21\ See Hodel v. Virginia Surface Mining and Reclamation Ass'n, 
452 U.S. 264, 289 (1981) (noting that states are permitted ``within 
limits established by [the NAAQS], to enact and administer their own 
regulatory programs, structured to meet their own particular 
needs''). See also Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976) 
(acknowledging that states have ``wide discretion'' in formulating 
their SIPs and that ``[s]o long as national standards are met, the 
state may select whatever mix of control devices it desires''); BCCA 
Appeal Grp. v. EPA, 355 F.3d 817, 822 (5th Cir. 2003) (recognizing 
states have ``broad authority to determine the methods and 
particular control strategies they will use to achieve the statutory 
requirements'') (citing Union Elec. Co., 427 U.S. at 266).
---------------------------------------------------------------------------

    EPA Region 6 recognizes that the interpretation of the CAA to allow 
the Texas affirmative defenses in SIPs conflicts with the position 
taken in the 2015 SSM SIP Action; however, it is important to 
understand and acknowledge that the affirmative defense provisions for 
malfunctions in the Texas SIP are a key component of the state's 
overall clean air control strategy which has evolved since the initial 
Texas SIP in 1972. See page 3 of the TCEQ comment letter recognizing 
that affirmative defense provisions are ``part of a long-standing and 
integral part of the Texas SIP''.\22\ Recognizing that states have 
latitude to define in their SIPs what constitutes an

[[Page 7238]]

enforceable emission limitation, Region 6 has determined that the Texas 
SIP provisions are an example of how a limited affirmative defense can 
be properly crafted to be a part of an approved SIP.
---------------------------------------------------------------------------

    \22\ Document ID No. EPA-R06-OAR-2018-0770-0018 at 
www.regulations.gov.
---------------------------------------------------------------------------

    One commenter quoted the D.C. Circuit as saying that it has avoided 
suggesting ``that under [section 7410] states may develop their plans 
free of extrinsic legal constraints,'' including those contained in the 
Act. Appalachian Power Co. v. EPA, 249 F.3d 1032, 1047 (D.C. Cir. 
2001). In this action, Region 6 is in no way suggesting that no 
limitations exist on states' SIP development. As noted previously in 
this response, Region 6 agrees with the commenters' position that the 
flexibility afforded states in the development of SIPs is not without 
limitations. However, as explained elsewhere in this action, Region 6 
has determined that the affirmative defense provisions in Texas's SIP 
are consistent with CAA requirements.
    Comment: The commenter stated that the EPA has not explained why it 
would be appropriate to prevent a federal court from imposing civil 
penalties for violation of a SIP emission limit while preserving the 
right of the court to impose civil penalties for violation of a NESHAP. 
The commenter claimed that, without a stated, logical reason for this 
distinction, it is arbitrary and capricious of the EPA to create a 
distinction.
    Response: Region 6 disagrees with the commenter. As explained in 
the proposal, the mechanisms established under section 112 of the CAA 
to control air pollution are different than those under section 110 in 
significant ways. CAA section 110 functions within a cooperative 
federalism system in which states are required to develop plans to 
attain and maintain the NAAQS and the EPA determines whether the 
specific state plans comply with the Act's requirements. See 42 U.S.C. 
7410(a) & (k)(4). On the other hand, CAA section 112 requires the EPA 
(not states) to establish federal emission limitations for a specific 
class of sources and pollutants and strictly prescribes how the EPA 
must establish those standards, which states have little flexibility in 
how to implement. See 42 U.S.C. 7412(d). More specifically, CAA section 
110 requires states to adopt ``emission limitations and other control 
measures, means, or techniques . . . as may be necessary or appropriate 
to meet the applicable requirements of this chapter'' while CAA section 
112 directs the EPA to adopt standards that ``require the maximum 
degree of reduction in emissions'' that the Administrator determines is 
achievable ``through application of measures, processes, methods, 
systems or techniques including, but not limited to'' measures meeting 
a list of five requirements. Cf. 42 U.S.C. 7410(a)(2)(a) with 
7412(d)(2) (emphases added).
    Region 6 now believes that the Agency gave insufficient weight to 
the fact that Region 6's prior approval of the Texas affirmative 
defense provisions that were subject to the 2015 SSM SIP Action had 
been upheld by the Fifth Circuit, the circuit to which review of Texas-
specific actions is specifically assigned by Congress under CAA section 
307(b), when applying the reasoning of NRDC to the SIP context in the 
EPA's 2014 supplemental proposal and the 2015 SSM SIP Action. As 
explained in the prior response, the petitioners in the Luminant case 
argued that the EPA's approval of the Texas affirmative defense SIP 
provision conflicts with CAA sections 113(b) and 304(a). As discussed 
above, the Luminant court was squarely presented with the argument that 
affirmative defense for malfunctions in the Texas SIP inappropriately 
altered or infringed upon federal district court jurisdiction to assess 
appropriate penalties and the court concluded that it did not, instead 
holding that it is permissible to include narrowly-tailored provisions 
that are consistent with the penalty assessment criteria in CAA section 
113(e). The Luminant court acknowledged that ``states have wide 
discretion in formulating their SIPs, including the broad authority to 
determine the methods and particular control strategies they will use 
to achieve the statutory requirements.'' 714 F.3d at 845 (internal 
quotations deleted), citing Union Elec., 427 U.S. at 250; BCCA Appeal 
Grp., 355 F.3d at 822.
    While the NRDC court clearly states that affirmative defenses under 
CAA section 112 are inappropriate, that court's opinion explicitly 
deferred judgment on whether they were permissible for inclusion in an 
approved SIP. The only court decision to reach the question of the 
appropriateness of affirmative defenses in SIPs is the Luminant court. 
Region 6 is applying this directly on-point court decision, from the 
court which Congress has assigned the role of hearing challenges to 
actions applicable to Texas, 42 U.S.C. 7606(b), to the review of the 
affirmative defense provisions in the Texas SIP, which is the Luminant 
decision. Region 6 thinks the distinction between CAA sections 110 and 
112 set forth here is reasonable under the Act. Where the Act requires 
under CAA section 112 the EPA to directly establish federal limits that 
meet detailed and strict criteria and that are established to further a 
different purpose than that of CAA section 110, it is reasonable to 
take the position that the EPA's and a state's discretion is more 
limited than in the section 110 context, and that only a court should 
determine what penalties should apply when those limits are violated, 
as the NRDC court found. However, when addressing limits that have been 
established by the state as part of an overall plan to address the 
NAAQS under the CAA section 110 regime, and where states have primary 
responsibility for and flexibility in establishing those limits, Region 
6 thinks it is reasonable for states to include--and the EPA to 
approve--certain defenses to penalties for violations of those limits, 
as the Luminant court found.
    Comment: Commenters stated that the EPA lacks the authority to 
disapprove affirmative defense SIP provisions if it finds that the SIP 
will ensure compliance with the NAAQS. Commenters referenced several 
court cases where the courts stated that it is the states and not the 
EPA that retain primacy for NAAQS implementation. Commenters stated 
that development of affirmative defense provisions for SSM periods is 
plainly within the states' authority under this statutory structure, 
and the EPA's role is limited to determining whether such SIP 
provisions are approvable. Commenters referenced CAA section 110(k)(2) 
and the EPA's previous statements in a memorandum and stated that, in 
the absence of any demonstrated link to air quality issues rendering a 
SIP substantially inadequate, any effort by the EPA to impose its 
policy preference on the states is beyond the EPA's authority. 
Furthermore, commenters stated that there is no indication that the 
Texas affirmative defense for SSM provisions renders the Texas SIP 
substantially inadequate. The commenters alleged that the 2015 SSM SIP 
Action did not reflect the EPA's limited role, did not defer to the 
state on how to achieve CAA objectives, and wholly fails to demonstrate 
that the Texas SIP is in fact ``substantially inadequate to attain or 
maintain'' the NAAQS and meet other CAA requirements. The commenters 
stated that the EPA has failed to demonstrate that substantial 
reductions in emissions would result from eliminating affirmative 
defense provisions for SSM activities despite the reasonable design, 
operation, and maintenance of equipment to meet those requirements.
    Response: This action is limited to Region 6's review of the SIP 
call issued to Texas in 2015. To the extent the

[[Page 7239]]

commenters are arguing about other aspects of the EPA's 2015 SSM SIP 
Action, that is outside the scope of this action. Within the confines 
of this action, which is limited to the Texas affirmative defense 
provisions, Region 6 agrees with the commenters that the CAA grants 
states considerable latitude in fashioning a plan to ensure the 
attainment and maintenance of the NAAQS, as provided by CAA section 
110. Section 110(k)(5) of the CAA defines the basis upon which the EPA 
can issue a call to a state to revise its SIP. Section 110(k)(5) of the 
CAA provides that the EPA can issue a SIP call whenever the Agency 
``finds that the applicable implementation plan for any area is 
substantially inadequate to attain or maintain the relevant [NAAQS], . 
. . or to otherwise comply with any requirement of this chapter'' 
(emphasis added). Region 6 does not consider this role and 
responsibility to be limited or ministerial in nature. However, as 
discussed throughout this final action, based on an alternative 
interpretation of CAA requirements, Region 6 is now adopting the view 
that the Texas affirmative defense provisions are not substantially 
inadequate under the rubric of CAA section 110(k)(5) and, therefore, is 
withdrawing the SIP call for the Texas affirmative defense provisions 
issued in the 2015 SSM SIP Action.
2. Comments on the Need for Affirmative Defense Provisions
    Comment: The commenter stated that the EPA should not defund the 
regulation and penalization of emissions related to SSM events. The 
commenter argued that mechanisms for accountability and financial and 
criminal liability should remain in place. The commenter believes that 
polluters should not escape penalties for significant emissions that 
result from scheduled maintenance, accidents, and/or a catchall class 
of ``furtive'' emissions.
    Response: Region 6 disagrees with the commenter's assertion that 
this action in any way ``defunds the regulation and penalization'' of 
SSM events. Rather, our action finds that specific and narrowly 
tailored affirmative defense provisions in the Texas SIP are not 
substantially inadequate under the rubric of CAA section 110(k)(5). As 
discussed in the proposal and in this final action, Region 6 has 
concluded that the Texas affirmative defense provisions are permissible 
under the alternative interpretation of the CAA presented here, 
including that CAA section 110(a)(2) authorizes Texas to establish 
emission limitations in its SIP that include a narrowly tailored 
affirmative defense to civil penalties for unavoidable excess emissions 
in a manner consistent with the penalty assessment criteria set forth 
in CAA section 113(e), as upheld in the Luminant decision. Under the 
requirements of these provisions, Texas will hold sources accountable 
for periods of excess emissions, including triggering penalties and 
corrective action plan requirements, where excessive emission events do 
not meet the requirements of the state's narrowly tailored affirmative 
defense. With regards to the comment that sources should be held 
accountable for significant excess emissions that result during periods 
of scheduled maintenance, Region 6 notes that planned, scheduled 
maintenance events do not meet the criteria in the Texas affirmative 
defense provisions. In addition, there are no ``furtive'' or hidden 
emissions associated with the affirmative defense provisions that are 
the subject of this action because all excess emissions are required to 
be reported to Texas online through the State of Texas Electronic 
Emissions Reporting System (STEERS) and the affirmative defense may not 
be asserted for emissions that have not been reported (see 30 TAC 
Chapter 101, Subchapter F). The commenter also argued that mechanisms 
for criminal liability should remain in place. The affirmative defense 
provisions in the Texas SIP do not apply to criminal penalties.
    Comment: The commenter stated that most excess emissions can be 
attributed to accidents that could have been avoided through better 
maintenance or safety inspections. The commenter cited research that 
demonstrates that just over 10% of all excess emissions events from 
2002-2017 were related to unavoidable natural disasters, and that this 
finding suggests that many excess emissions events in Texas cannot be 
considered unavoidable. The commenter stated that the proposal 
completely misses the distinction between ``unavoidable'' and truly 
unavoidable excess emissions (from unavoidable natural disasters) and 
thus fails to account for the deterrent effect that a stricter 
regulatory environment can have on the incidence of excess emissions.
    Response: The commenter appears to be asserting that the only 
excess emissions that can be considered unavoidable are those that 
result following natural disasters. The EPA has never taken the 
position that all emission events are avoidable except from those that 
result from natural disasters, such as tornadoes or hurricanes. To the 
extent that the commenter is alleging that the Texas provisions do not 
adequately incentivize source owners or operators toward responsible 
behavior and better plant maintenance, Region 6 disagrees that the 
proposal does not address the distinction between unavoidable excess 
emissions and excess emissions that could have been avoided by better 
maintenance in regard to affirmative defenses. First, Region 6 observes 
that all emissions occurring above any air emission limitation in a 
permit, rule, or order of the commission are deemed a violation of the 
emission limitation. 30 TAC 101.1(108). An enforcement action can be 
brought by the EPA, Texas, or citizens for any such violation. The 
affirmative defense provision only provides the defendant an 
opportunity, with regard to which the defendant bears the burden of 
proof, to demonstrate that the violation in question meets the strict 
criteria outlined in the Texas SIP. An affirmative defense is only 
available for non-excessive upset and unplanned events, so source 
owners and operators are incentivized to keep any emissions that occur 
over applicable limitations to a minimum to avoid being considered 
excessive. In addition, in order to successfully assert an affirmative 
defense in an enforcement action, the responsible party bears the 
burden to demonstrate that the unauthorized emissions could not have 
been avoided through better operation and maintenance practices, among 
a number of other identified criteria. A citizen or government agency 
has an opportunity to rebut this demonstration in the course of an 
enforcement action.
    Each report of emissions that exceed applicable limitations is 
evaluated by the corresponding TCEQ field office. In fact, as stated 
earlier, Texas's regulatory regime has evolved since 1972, with each 
iteration bringing a tightening of requirements.\23\
---------------------------------------------------------------------------

    \23\ See pages 2-3 of TCEQ's petition for reconsideration, 
Document ID No. EPA-R06-OAR-2018-0770-0010 at www.regulations.gov.
---------------------------------------------------------------------------

3. Comments Concerning Appropriateness of the Regional Scope of This 
Action
    Comment: Commenters argued that Region 6's proposed action is based 
on an interpretation of the CAA that varies from national policy, and 
the Region is required by law (specifically 40 CFR 56.5(b)) to obtain 
concurrence for such actions from the relevant EPA headquarters (HQ) 
office before taking final action. The commenters alleged that there is 
no record that the EPA has complied with its consistency

[[Page 7240]]

regulations in proposing to exempt Texas from the national SSM policy, 
although the commenter acknowledged that the docket includes a letter 
of concurrence signed by the Director of OAQPS. The commenter asserted 
that governing EPA guidance documents state that where a proposed 
action would have significant national policy implications, a more 
complete review, including a steering committee or interagency review, 
coordination through the appropriate HQ office, and full concurrence by 
each affected EPA section is necessary. The commenter argued that 
nothing is in the record to indicate that Region 6 has conducted the 
required consultations and obtained all requisite concurrences in order 
for this action to move forward.
    Commenters also argued that for an EPA regional office to depart 
from a national EPA policy on a particular issue, it must articulate a 
compelling reason that rationally explains why that issue deserves 
different treatment from other regions, but the EPA has failed to meet 
this requirement. The commenter contended that the EPA is obligated to 
correct inconsistencies by standardizing processes and policies rather 
than using CAA section 301(a)(2) as a license to institutionalize the 
kind of inconsistencies that have been proposed in EPA Regions 4 and 6, 
which depart from the nationally applicable policies in the 2015 SSM 
SIP Action and instead create a patchwork of regionally applicable CAA 
policies. The commenters alleged that there is no adequate explanation 
for authorizing an alternative interpretation, including no discussion 
of why an alternative interpretation is approvable under the regional 
consistency regulations.
    Response: To the extent the commenters are raising concerns with 
the recent action proposed by EPA Region 4 concerning SSM SIP 
provisions in North Carolina, that is outside the scope of this action 
and Region 6 provides no response. With respect to the concerns raised 
concerning this Region 6 action, which is limited in scope to Texas, 
Region 6 did follow the procedures outlined in the regional consistency 
regulations at 40 CFR 56.5(b), as explained in the proposal and 
acknowledged by commenters. Specifically, before granting Texas's 
petition for reconsideration and before our proposed action, the Region 
6 Regional Administrator sought and received EPA headquarters 
concurrence to deviate from the national policy announced in the 2015 
SSM SIP Action.\24\ Before finalization of this action, the Region 6 
Regional Administrator again sought and received EPA headquarters 
concurrence to deviate from national policy in this final action.\25\ 
The substance of the commenters' allegation appears to be directed at 
Region 6's alleged failure to follow the document titled ``Revisions to 
State Implementation Plans--Procedures for Approval/Disapproval 
Actions,'' OAQPS No. 1.2-005A, referenced in 40 CFR 56.5(c). However, 
the regional consistency regulations only require following this 
guideline ``in reviewing State Implementation Plans.'' In this action, 
the Region is not reviewing a SIP submission from a state under section 
110(k)(3), but rather is withdrawing a SIP call issued pursuant to 
section 110(k)(5). Therefore, the provisions of 40 CFR 56.5(c) are not 
applicable. Even if this action fell under the auspices of 40 CFR 
56.5(c), that regulation requires the region to follow ``OAQPS No. 1.2-
005A, or revision thereof.'' OAQPS No. 1.2-005A is a guideline from 
1975 that has been updated multiple times. EPA Region 6 did follow the 
most recent iteration of the EPA's internal SIP review process for 
ensuring national consistency, which is the EPA's 2018 SIP Consistency 
Issues Guide.
---------------------------------------------------------------------------

    \24\ See Document ID No. EPA-R06-OAR-2018-0770-0009.pdf, pages 
3-4 at www.regulations.gov.
    \25\ See EPA Docket ID No. EPA-R06-OAR-2018-0770 at 
www.regulations.gov.
---------------------------------------------------------------------------

    The commenters also argue that Region 6 failed to follow the 
regional consistency regulations by not providing a ``compelling 
reason'' for the region to deviate from the national policy outlined in 
the 2015 SSM SIP Action. Nothing in the EPA's regional consistency 
regulations or CAA section 301(a)(2) require a ``compelling reason'' to 
underpin regional deviation from national policy. All that is required 
is that the region seek EPA headquarters concurrence for the action it 
intends to take, when such action deviates from national policy, and 
that has been done here. Moreover, the EPA's Office of Air and 
Radiation reviewed a draft of this final action and determined that the 
circumstances and rationale set forth in this action provided a 
reasonable basis to concur on Region 6's deviation from the national 
policy outlined in the 2015 SSM SIP Action.
    Comment: The commenter stated that, although Region 6 relies 
heavily on the Fifth Circuit Luminant decision in order to apply a new 
CAA interpretation for all Region 6 states, New Mexico, Oklahoma, and 
Arkansas are not in the Fifth Circuit. The commenter states that this 
is arbitrary and capricious since there is no basis for treating the 
SIPs from these three states differently than the SIPs from states in 
other EPA regions.
    Response: In the April 2019 proposal, Region 6 noted that it was 
considering adopting a regionwide policy that certain affirmative 
defense SIP provisions are consistent with CAA requirements, but noted 
that it would consider whether it would apply any regionwide policy to 
others states in Region 6 in separate actions. However, after reviewing 
the public comments received, EPA Region 6 has decided to limit its 
deviation from national policy regarding affirmative defenses only as 
to the SSM SIP call for Texas since the Texas provisions were 
previously upheld by the Fifth Circuit in the Luminant decision, and 
Region 6 is not herein announcing any policy with respect to the 
remaining Region 6 states. Therefore, at this time in all Region 6 
states except Texas, the policy remains unchanged from what was 
announced in the 2015 SSM SIP Action.
    Comment: The commenters noted that, as the EPA recognized in the 
2015 SSM SIP Action, the agency's legal interpretation of CAA 
requirements concerning permissible SIP provisions to address emissions 
during SSM events was a ``nationally applicable rule.'' The commenters 
noted that petitions challenging aspects of the SIP call or its SSM 
policy were required to be filed in the D.C. Circuit. The commenters 
suggested that Region 6 must acknowledge that the proposal at issue is 
part of the same nationally applicable regulation under CAA section 
307(b)(1) for the following reasons:
    (1) The Region 6 proposal adopts a policy that varies from the 
national policy and announces a substantive change to determining 
whether affirmative defense provisions in SIPs are approvable. This 
reversal effectively amends the EPA's national SSM policy and is 
therefore nationally applicable;
    (2) Although the proposal ostensibly only applies to states in 
Region 6, the EPA is using it to announce a substantial change to the 
CAA's SIP requirements. Furthermore, the proposal necessarily applies 
to the 17 states covered by the affirmative defense aspect of the 2015 
SSM SIP Action. That the EPA chose to promulgate a new national policy 
in a Federal Register document that only applies to Region 6 does not 
preclude the courts from examining the underlying substance and 
applicability of the rule.
    Response: Region 6 is not establishing a new national policy; 
rather, Region 6 is taking action associated with specific

[[Page 7241]]

SIP provisions within the Texas SIP that are applicable only within a 
single state, Texas. Region 6 is simply reexamining the effect of the 
Luminant decision and the findings and statements made by that Court as 
it applies to the exact Texas SIP provisions that were the subject of 
the EPA's finding of substantial inadequacy in the 2015 SSM SIP Action, 
as well as the nature and statements made by the NRDC court, and 
concluding that it is not necessary to extend the reach of the NRDC 
decision to the particular affirmative defense provisions at issue in 
the Texas SIP. As the D.C. Circuit has recently explained, ``[t]he 
court need look only to the face of the agency action, not its 
practical effects, to determine whether an action is nationally 
applicable.'' Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019) 
(citing Dalton Trucking, 808 F.3d 875, 881 (D.C. Cir. 2015) and Am. 
Road & Transp. Builders Ass'n v. EPA, 705 F.3d 453, 456 (D.C. Cir. 
2013)). On its face, this action is locally applicable because it is 
determining that specific provisions in the Texas SIP that are 
applicable only in Texas are consistent with CAA requirements and 
therefore withdrawing a SIP call issued to Texas in 2015. This action 
has immediate or legal effect only for and within Texas. If the EPA 
were to rely on the statutory interpretation set forth in this action 
in another potential future final agency action, the statutory 
interpretation would be subject to judicial review upon challenge of 
that later action.
    Comment: The commenters claimed that even if the EPA's proposal was 
not nationally applicable, the EPA must still make and publish a 
finding that the proposed amendment to the national SSM SIP call and 
policy established in that rule is based on a determination of 
nationwide scope and effect, as the proposal is in fact based on 
several determinations of nationwide scope and effect, the authority 
for which is given to the Administrator under the CAA. The commenters 
contended that the proposal is indisputably based on the EPA's 
determinations about the nationwide validity of the nationally 
applicable 2015 SSM SIP Action. The commenters remarked that in the 
proposal, Region 6, by seeking HQ concurrence to propose an action 
inconsistent with national policy, admits that the proposal is, in 
fact, based on a determination of nationwide scope and effect. The 
commenters asserted that a determination of nationwide scope and effect 
is furthermore appropriate where a regionally applicable action 
encompasses two or more judicial circuit courts. The commenters noted 
that since the revised affirmative defense policy would apply 
throughout Region 6, which spans three judicial circuits, and that the 
three courts could reach conflicting conclusions regarding the 
appropriateness of affirmative defenses, the proposal must be reviewed 
only in the D.C. Circuit. The commenters claimed that a refusal to find 
the rule is based on determinations of nationwide scope and effect 
would be inconsistent with the 2015 SSM SIP Action; there the EPA found 
that venue was appropriate in the D.C. Circuit because the agency was 
revising its interpretations with respect to certain issues and 
establishing a national policy applicable to all states. The commenters 
argued that the EPA's refusal to make and publish a finding of 
nationwide scope and effect constitutes an arbitrary, capricious, and 
unexplained departure from the EPA's past practice of directing review 
of SIP calls to the D.C. Circuit. The commenters concluded that while 
the EPA is not precluded from adopting a different approach to venue 
under the CAA, it must display an awareness of its changing position 
and show there are good reasons for the new policy.
    Response: Under the venue provision of the CAA, an EPA action 
``which is locally or regionally applicable'' may be filed ``only in 
the United States Court of Appeals'' covering that area, 42 U.S.C. 
7607(b)(1) (emphasis added). The only exception to that mandate is 
where the Administrator expressly finds and publishes that the locally 
or regionally applicable action is based on a determination of 
nationwide scope and effect. The requirement that the Administrator 
find and publish that an otherwise locally or regionally applicable 
action is based on a determination of nationwide scope and effect is an 
express statutory requirement for application of this venue exception, 
and there is no such finding to publish here. Absent an express 
statement--and publication--that such a finding has been made, thus 
invoking the venue exception, there can be no application of that 
exception. See, e.g., Lion Oil v. EPA, 792 F.3d 978, 984 n.1 (8th Cir. 
2015) (even where the EPA, unlike here, made the necessary finding, the 
court found no need to decide application of the venue exception absent 
publication of that finding); Texas v. EPA, 829 F.3d 405, 419 (5th Cir. 
2016) (``This finding is an independent, post hoc, conclusion by the 
agency about the nature of the determinations; the finding is not, 
itself, the determination.''); Dalton Trucking, 808 F.3d 875.
    CAA section 307 expressly hands the Agency full discretion to make 
its own determination whether to exercise an exception to a 
Congressionally-dictated rule. See Texas v. EPA, 829 F.3d at 419-20 
(the venue exception ``gives the Administrator the discretion to move 
venue to the D.C. Circuit by publishing a finding declaring the 
Administrator's belief that the action is based on a determination of 
nationwide scope and effect.'') (emphases added).
    Even assuming that a court would review Region 6's declination to 
make a nationwide scope or effect determination under the 
Administrative Procedure Act arbitrary and capricious standard, the 
declination is not unreasonable in this case. Commenters assert that 
Region 6's decision to seek concurrence to propose an action 
inconsistent with national policy somehow constitutes an admission that 
such action is based on a determination of nationwide scope and effect. 
It is not clear how or why this should be so. In any case, as is stated 
throughout this document, this action and the CAA interpretation it is 
based upon applies in Texas only and does not alter EPA's national 
policy, and thus is not based on a determination of nationwide scope or 
effect. See American Road & Transportation Builders Ass'n v. EPA, 705 
F.3d 453, 456 (D.C. Cir. 2013) (holding that venue for review of the 
EPA's approval of revisions to California's SIP lay in the Ninth 
Circuit because the approval only applied to projects within 
California, even if the SIP could set a precedent for future 
proceedings).
    The commenters argue that it is appropriate for EPA to find and 
publish that an action is based on a determination of nationwide scope 
and effect where a regionally applicable action encompasses multiple 
judicial circuits. The EPA does not take a position on this question 
here, nor does it need to do so, because as explained earlier in this 
document, this final action is limited to Texas, and thus only a single 
judicial circuit. Although Region 6 was initially contemplating a 
regionwide policy on affirmative defense provisions in SIPs, after 
reviewing comments received during the public process the region has 
decided to limit the deviation from national policy to Texas and the 
only final action being taken herein is to withdraw the SIP call issued 
to Texas.
    The commenters also allege that the EPA has a past practice of 
directing review of SIP calls to the D.C. Circuit, but this is 
incorrect. In the 2015 SSM

[[Page 7242]]

SIP Action, the Agency did opt to consolidate its action into a single 
national announcement of policy and issue 36 individual SIP calls 
through one document. But at other times SIP calls have been issued by 
individual regions and reviewed in regional circuits. For example, in 
2011, EPA Region 8 found that the Utah SIP was substantially inadequate 
to comply with the requirements of the CAA and therefore issued a SIP 
call for Utah to revise its SIP to change an unavoidable breakdown 
rule, which exempted emissions during unavoidable breakdowns from 
compliance with emission limitations. 76 FR 21639 (April 18, 2011). 
This SIP call was subsequently reviewed in the U.S. Court of Appeals 
for the Tenth Circuit. US Magnesium v. EPA, 690 F.3d 1157 (10th Cir. 
2012).
    Comment: Commenters stated that the proposed Texas withdrawal from 
the 2015 SSM SIP Action applies only to the Texas SIP and only has 
legal effect in the State of Texas; therefore, the action is ``locally 
or regionally applicable'' under the CAA judicial review provision and 
EPA Region 6 was correct in not making a finding that this action ``is 
based on a determination of nationwide scope or effect.'' The 
commenters noted that while Luminant is directly applicable to Texas, 
the rationale for the action may be applicable elsewhere and it may be 
more appropriate to address Region 6 states outside the Fifth Circuit 
in a separate action. Commenters requested that Region 6 should clarify 
that its policy position on the treatment of SSM affirmative defenses 
is non-binding guidance that reflects the Region's interpretation of 
the CAA's requirements. The commenters stated that guidance should make 
clear that any Region 6 state that seeks approval of SIP provisions 
containing SSM affirmative defenses would be subject to a separate 
notice-and-comment rulemaking in which Region 6 would assess the 
provision and determine whether it complies with the requirements of 
the CAA. The commenters also stated that the policy guidance here would 
not constitute the consummation of any decision-making process with 
regard to those SIPs, nor would it determine any legal rights, 
obligations, or consequences. The commenters recommended that the 
policy guidance should make clear that the Region would examine 
individual SIP affirmative defense provisions for consistency with the 
CAA on a case-by-case rather than rejecting all such provisions out of 
hand.
    Response: This action only concerns the Texas SIP and only has 
legal effect in Texas, so it is a locally or regionally (as opposed to 
nationally) applicable action. As stated in the TCEQ's petition for 
reconsideration and our proposal, the Texas affirmative defense SIP 
provisions are narrow and limited in scope. After careful consideration 
of the facts and circumstances surrounding our approval of the 
affirmative defense provisions in the Texas SIP, including the fact 
that the Fifth Circuit previously upheld the EPA's approval of the same 
provisions that were the subject of the Texas portion of the 2015 SSM 
SIP Action, Region 6 has concluded that it would be appropriate to 
withdraw the finding of inadequacy as it applies to the Texas SIP.
    This action does not have any immediate or legal effect outside of 
Texas, and Region 6 is not announcing any policy that would apply 
outside of Texas. As noted by the commenter, Region 6 will examine any 
state submittal for a SIP revision, or any potential future petition 
for reconsideration of a SIP call issued to another Region 6 state, 
consistent with the EPA's obligations under the CAA. In this document, 
Region 6 is taking a final action to withdraw the Texas SIP call based 
on the reasons set forth in the proposal and this document. Apart from 
the action on the Texas SIP, Region 6 is not altering or changing the 
Agency's position with respect to affirmative defenses.
4. Other Comments
    Comment: The commenter alleged that the EPA's argument that 
``removing these affirmative defense provisions from SIPs will not 
reduce emissions and therefore would not result in an environmental or 
public health or welfare benefit'' is flawed and inadequate. The 
commenter stated that, through this action, Region 6 is creating a less 
stringent regulatory environment, while providing no evidence to 
support its claim that eliminating affirmative defense provisions will 
not reduce excess emissions. The commenter contended that the EPA's 
argument is not based on any analysis and lacks substantive supportive 
evidence from the peer reviewed literature.
    The commenter also cited research documenting the specific and 
general deterrence effects of enforcement on environmental rules and 
regulations. The commenter contended this research, which studies the 
Clean Water Act compliance behavior of paper and pulp facilities, 
concludes that compliance and enforcement actions reduce incidences and 
durations of noncompliance.
    Response: The commenter, and the cited research, speak of emissions 
that exceed applicable limitations during routine events. This action 
concerns the Texas affirmative defense provisions that are only 
available for upsets and unplanned MSS events. Unplanned MSS events by 
definition are not routine. The specific affirmative defense provisions 
at issue herein apply to unavoidable excess emissions by a source that 
cannot be prevented by an owner or operator through planning and 
design. Because the covered events, and resulting emissions that exceed 
applicable emission limitations, are unavoidable, by the very nature of 
source operations, they would occur regardless of whether the 
affirmative defense provisions were in the Texas SIP. Therefore, Region 
6 disagrees that the affirmative defense provision provide a less 
stringent regulatory environment as the potential relief is only 
available for events proved to be unavoidable.
    Furthermore, the following provides evidence that the Texas 
regulatory scheme provides deterrence to emissions events. In response 
to a similar comment, TCEQ in 2016 wrote \26\:
---------------------------------------------------------------------------

    \26\ October 31, 2016, TCEQ's Interoffice Memorandum, from 
Richard Hyde, Executive Director to Tucker Royall, General Counsel, 
titled ``Analysis of Environmental Integrity Project's (EIP) 
Breakdowns in Air Quality Report, April 27, 2016''.
---------------------------------------------------------------------------

    ``In fiscal year 2015, the agency [TCEQ] conducted over 109,000 
investigations, which included 4,212 compliance investigations. More 
than 18,000 Notice of Violations were issued regarding investigations 
conducted. Enforcement efforts resulted in 1,681 administrative orders 
issued with over $12.6 million to be paid as penalties and over 3.2 
million to be expended for Supplemental Environmental Projects (SEPs). 
There were an additional 46 civil judicial orders issued by the Texas 
Office of Attorney General (OAG) that resulted in over $16.1 million to 
be paid as penalties. The agency also participated in five search 
warrants and finalized ten criminal cases with convictions against 11 
individuals and two corporations during FY 2015. The finalized cases 
included 19 felony counts and six misdemeanor counts. These cases 
resulted in total of $16,000 in criminal fines, 30 years of community 
supervision, 156 months of incarceration, 1,050 hours of community 
service, and over $23,370,000 in restitution.'' TCEQ also stated, ``It 
is important to note that the overall number of emission events

[[Page 7243]]

reported decreased 10% from 4,987 in FY 2014 to 4,512 in FY 2015.''
    Moreover, while Region 6 does not dispute the research cited by the 
commenter concerning the deterrence effect of enforcement, the Texas 
affirmative defense provisions do not prohibit enforcement. The Texas 
affirmative defense is only available for monetary penalties; an 
enforcement action can still be brought for injunctive relief. Region 6 
also notes that the research on the regulation and enforcement of the 
Clean Water Act finds that enforcement reduces the incidence and 
duration of violations. The affirmative defense provisions in the Texas 
SIP only apply to excess emissions violations due to unavoidable 
malfunctions, where the source has proven that it meets specific 
criteria (including that the frequency and duration of the event was 
minimized and that all possible steps were taken to minimize the impact 
of the unauthorized emissions on air quality). This also does not speak 
in any way to Region 6's alternative CAA interpretation outlined in the 
proposal and this action and whether the Texas affirmative defense 
provisions are approvable in CAA SIPs.
    Comment: One commenter noted that the EPA failed to conduct a 
detailed cost benefit analysis on the impacts of excess emissions on 
human health and the environment.
    Response: There is nothing in the statute that requires the Agency 
to conduct a cost benefit analysis in order to withdraw a SIP call, and 
the commenter has not provided a compelling reason for why Region 6 
should do so. In addition to statutory requirements, regulatory 
agencies also take direction from the President and the Office of 
Management and Budget (OMB) within the Executive Office of the 
President regarding what type of formal regulatory evaluation should be 
performed during rulemaking. Executive Order 12866, Regulatory Planning 
and Review, requires an assessment of benefits and costs for all 
significant regulatory actions. As stated in the proposal, this action 
is not a ``significant regulatory action'' subject to review by OMB 
under Executive Order 12866. In reviewing SIP submissions, the EPA's 
role is to approve state choices, provided that they meet the criteria 
of the CAA. Accordingly, this action merely reaffirms that the Texas 
State law meets Federal requirements and does not impose additional 
requirements beyond those imposed by state law. Therefore, this action 
is not subject to review by the OMB.
    Even if Region 6 were to conduct a cost benefit analysis, there are 
unlikely to be any impacts of this action. This final action does not 
involve a revision to the Texas SIP, nor does it result in an amendment 
to the current federally codified Texas SIP concerning affirmative 
defense provisions. This final action withdraws a SIP call issued to 
Texas in 2015 thereby leaving in place a state rule that the EPA 
incorporated into the Texas SIP in November 2010. Furthermore, the 
Texas affirmative defense provisions only apply to unauthorized 
emissions that a defendant proves were unavoidable. Because these 
emissions were unavoidable, the existence or lack of the affirmative 
defense provisions should not impact the scope of emissions.
    Comment: The commenter noted that, according to STEERS for calendar 
year 2017, 275 companies reported 4,067 periods of excess emissions 
that resulted in the release of more than 63 million pounds of air 
pollution. The commenter stated that according to data provided by 
TCEQ, affirmative defenses were claimed for 97 percent of those excess 
emissions events. The commenter concluded that this data indicates that 
these events are common enough to be considered routine and, therefore, 
should be regulated.
    Response: Region 6 does not disagree with the commenter's citation 
or their use of the data from STEERS. The fact that affirmative defense 
provisions were claimed for 97% of periods of excess emissions 
reported, however, does not suggest that these events are considered 
routine. Instead, it suggests an operator of an emission unit that 
violates an applicable limit is doing so because of a malfunction that 
was, due to the specific circumstances, considered unavoidable, based 
on the facts available at the time the excess emissions report and 
claim was required to be filed with Texas. The Texas affirmative 
defense provisions for an upset is only available for an event where 
the source owner or operator proves by a preponderance of evidence in 
an enforcement proceeding that the event in question was indeed due to 
an unplanned and unavoidable breakdown or excursion of a process or 
operation. Moreover, the State of Texas has additional provisions for 
excessive emission events, if, in fact, a facility is routinely and 
frequently violating applicable standards.\27\
---------------------------------------------------------------------------

    \27\ See 30 TAC 101.222(a).
---------------------------------------------------------------------------

    Outside of the criteria outlined in the affirmative defense 
provisions, which are quite stringent, equipment and process downtime 
cost business money and serve as incentive to repair and remedy the 
situation in an expeditious manner. As previously stated, Region 6 
takes the position that in the case of the affirmative defense 
provisions in the Texas SIP, it would be inequitable to penalize a 
source for occurrences beyond the company's control. Furthermore, 
evidence of any past upset, unplanned MSS, or excess opacity event to 
which an owner or operator invoked the affirmative defense provision is 
admissible in litigation proceedings and can be considered as relevant 
to demonstrate a frequent or recurring pattern of events, even if all 
subjects of the criteria are proven.\28\
---------------------------------------------------------------------------

    \28\ See 30 TAC 101.222(g).
---------------------------------------------------------------------------

    Comment: The commenters alleged that the EPA fails to rationally 
confront how the affirmative defense provisions in the Texas SIP harm 
community enforcement efforts and the efficacy of pollution-control 
efforts. The commenters stated that the proposal fails to consider the 
polluters' abuse of the affirmative defense provisions and how that use 
thwarts enforcement and therefore diminishes sources' incentives for 
avoiding violations, resulting in higher levels of pollution. 
Additionally, the commenters alleged that the EPA has failed to 
rationally explain its departure from its treatment of such issues in 
the 2015 SSM SIP Action, where the EPA found that affirmative defense 
provisions do in fact interfere with actions taken to enforce emission 
limitations brought under the authority provided by CAA section 304. 
The commenters noted that where it is already difficult to bring 
citizen suits under the CAA, as demonstrated by the Hecker article \29\ 
as well as Sierra Club v. Energy Future Holding Corp., No. 12-cv-108-
WSS, 2014 WL 2153913 (W.D. Tex. (Mar. 28, 2014)), affirmative defenses 
make enforcement even more difficult and expensive. The commenters 
referenced a case in the Hecker article, which described how the 
factual complexity inherent in a dispute over whether violations are 
infrequent and unavoidable, and could have been prevented through 
acceptable operating and maintenance practices, made it difficult to 
rebut the defendant's assertion of affirmative defense and bring the 
suit in a cost-effective manner. The commenters alleged that in Energy 
Future Holding, without denying thousands of exceedances of the permit

[[Page 7244]]

limits for opacity, Luminant argued, and the district court found, that 
TCEQ's determinations did alter the court's authority to find liability 
for self-reported exceedances of emission limits. The commenters 
claimed that real world experience shows that defendants have relied 
upon, and will assuredly continue to rely upon, the Texas affirmative 
defense provisions to argue that a federal court's authority to find 
liability or impose penalties under the Act is limited.
---------------------------------------------------------------------------

    \29\ Jim Hecker, The Difficulty of Citizen Enforcement of the 
Clean Air Act, 10 Widener L. Rev. 303 (2004). (Referred to as 
``Hecker article''. This article describes the author's experience 
litigating five citizen suits between 1995 and 2004, including one 
citizen suit case where a Texas refinery claimed SSM defenses.)
---------------------------------------------------------------------------

    Response: In this action, Region 6 is reviewing the regulatory 
affirmative defense provisions adopted by Texas and previously approved 
by the EPA into the Texas SIP. Region 6 is not investigating how these 
provisions have been applied in individual cases by either the State or 
individual courts. See Montana Environmental Information Center v. 
Thomas, 902 F.3d 971 (9th Cir. 2018) (holding that a petitioner's 
concern raising questions of implementation does not need to be 
addressed when EPA is approving a SIP, but rather is ``better addressed 
at a different time''). To the extent the commenters disagree that the 
affirmative defense provisions were applied correctly in an individual 
case, they could have made such claims as a plaintiff or intervenor in 
the State's administrative or judicial enforcement action where the 
defendant asserted the affirmative defense. In this action, Region 6 is 
considering whether the affirmative defense provisions as crafted in 
state regulations, and approved into Texas's SIP, are consistent with 
CAA requirements.
    However, Region 6 notes that the commenters provide insufficient 
evidence that sources ``abuse'' the Texas affirmative defense 
provisions. The commenters appear to be claiming that sources are using 
the affirmative defense provisions in the Texas SIP to bad effect or 
for bad purpose. This supposition is unsubstantiated, and the 
commenters have failed to provide actual evidence that the affirmative 
defense provisions in the Texas SIP are being misused. The EPA does not 
believe it appropriate to speculate as to the motives or incentives of 
a source owner or operator generally or with respect to any particular 
emissions incident.
    Comment: The commenter claimed that the proposal fails to explain 
how the affirmative defense provisions in the Texas SIP will protect 
public health from air quality that violates the NAAQS. The commenter 
stated that neither the proposal nor Luminant considers how these 
provisions meet the legal requirements of SIPs to protect the NAAQS and 
PSD increments. The commenter noted that SSM events are well documented 
to have adverse human health impacts, especially on neighboring 
communities; furthermore, excess emissions represent a sizeable share 
of emissions in Texas. The commenter stated that Region 6 should have 
performed an analysis specific to sources in Texas, evaluating the 
potential impacts affirmative defenses would have on air quality 
throughout Texas, and demonstrating that the NAAQS would continue to be 
maintained in all areas of Texas notwithstanding the availability of 
such affirmative defenses. The commenter noted that Region 6 has made 
no attempt to do so in the proposal, therefore the proposal fails to 
provide a reasonable basis for approval.
    Response: Region 6 disagrees that some type of additional analysis 
specific to sources in Texas is required that the Texas affirmative 
defense provisions in the Texas SIP will protect the public health and 
the environment. At issue is whether the affirmative defense provisions 
are consistent with CAA requirements. With respect to commenter's 
concern about NAAQS violations, the provisions in the Texas SIP clearly 
place the burden of proof on the source owner or operator to 
demonstrate that the NAAQS and PSD increments were not exceeded in 
order to make use of the affirmative defense. See 30 TAC 101.222(b)(11) 
(the owner or operator must demonstrate that ``the unauthorized 
emissions did not cause or contribute to an exceedance of the national 
ambient air quality standards (NAAQS), prevention of significant 
deterioration (PSD) increments, or to a condition of air pollution''). 
Therefore, the existence of these provisions, by their own 
requirements, will not lead to any further interfere with the 
attainment of the NAAQS or PSD increments.
    Additionally, in an effort to ensure air quality is protected in 
Texas, TCEQ investigates each reported emission event, and makes a 
determination of whether the emission event was excessive (30 TAC 
101.222(a)). In addition, 30 TAC 101.222(f), titled Obligation, states 
that meeting the criteria in 30 TAC 101.222(b)-(e) and (h) do not 
remove any obligations to comply with any other existing permit, rule, 
or order provisions that are applicable to an emissions event or a 
maintenance, startup, or shutdown activity. It also states that an 
affirmative defense cannot apply to violations of federally promulgated 
performance or technology-based standards, such as those found in 40 
CFR parts 60, 61, and 63. The affirmative defense is available only for 
emissions that have been reported or recorded. Furthermore, the 
affirmative defense provisions in the Texas SIP are available only for 
emission events that are proven to be due to malfunctions.
    Comment: The commenters asserted that the burden of proof for an 
affirmative defense requires operators to prove that unauthorized 
emissions did not cause or contribute to a NAAQS violation or PSD 
increment exceedance, although in practice TCEQ grants affirmative 
defense to operators' unsupported representations that they lack 
sufficient information to indicate that an exceedance has occurred. The 
commenters claimed that the implementation of this affirmative defense 
provision is inconsistent with the Fifth Circuit decision and the EPA's 
reading of the rule. The commenters alleged that this provision has 
public health damages resulting from periods of excess emissions 
exceeding $250 million annually and noted that low-income communities 
and communities of color that are in close-proximity to sources 
claiming affirmative defenses bear the burden of periods of excess 
emissions, breathing deadly pollution, being told to stay indoors, 
being told to shelter in place, experiencing more frequent hospital 
visits, and facing a higher risk of serious and chronic health harms.
    Response: As discussed earlier, the affirmative defense provisions 
in the Texas SIP are defenses to a civil penalty asserted by a 
defendant in an enforcement action. Whatever conclusions made by TCEQ 
in its evaluation of excess emission reports for malfunctions is not 
binding upon the courts or other parties in a state or Federal 
enforcement action brought under CAA sections 113(b) or 304(a). See 
Environment Texas Citizen Lobby v. ExxonMobil, 84 ERC 1578 (S.D. Tex. 
2017) (stating that ``TCEQ's determination of the applicability of an 
affirmative defense at best rises to the level of prima facie proof'' 
and ``[r]eliance on the TCEQ's determination is not sufficient to meet 
Exxon's evidentiary burden at trial to demonstrate all eleven criteria 
are met''). In addition, the affirmative defense provisions in the 
Texas SIP are only applicable to upsets and unplanned periods of excess 
emissions. By definition, these events are unavoidable even when good 
practices are implemented at facilities. Upsets and unplanned periods 
of excess emissions are not beneficial operationally or financially to 
sources. The commenters appear to be asserting that affirmative 
defenses disincentivize mitigation of emissions due to

[[Page 7245]]

malfunctions. However, among the criteria in the Texas affirmative 
defense provisions is that all possible steps were taken to minimize 
the impacts of the unauthorized emissions on air quality. As such, 
sources have incentives to mitigate the adverse air quality impacts 
from such events as much as possible. While Region 6 acknowledges 
commenters' concern that emissions from malfunctions may contribute to 
adverse health impacts on communities around industrial facilities, 
malfunctions resulting in excess emissions are, subject to scrutiny 
both by TCEQ and in potential enforcement actions, as to whether the 
event itself was unavoidable using the narrowly tailored criteria 
provided in the affirmative defense provisions in the Texas SIP. In 
this action, Region 6 is reviewing the regulatory affirmative defense 
provisions adopted by Texas and previously approved by the EPA into the 
Texas SIP. Region 6 is not reviewing how those provisions are being 
implemented by TCEQ. In addition, the Texas affirmative defense 
provisions do not apply to actions seeking injunctive relief.

IV. Final Action

    Region 6 is finding that the affirmative defense provisions 
previously approved into the SIP do not make the Texas SIP 
substantially inadequate to meet the requirements of the Act. In doing 
so, EPA Region 6 is withdrawing the SIP call issued to Texas in 2015 
SSM SIP Action. As is detailed in the proposal for this final action, 
in the absence of a SIP call, Texas no longer has an obligation to 
submit a SIP revision addressing its existing affirmative defense 
provisions. Texas may withdraw the SIP revision submitted in November 
2016 in response to the 2015 SSM SIP Action, on which the EPA has not 
proposed or taken final action to approve or disapprove.

V. 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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.), since it alleviates an obligation on the State of Texas to 
revise its SIP by withdrawing the SIP call issued to Texas in 2015.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. Any agency may certify that 
a rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to this action. This action will not impose any 
requirements on small entities.

E. Unfunded Mandates Reform Act (UMRA)

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

F. Executive Order 13132: Federalism

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

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

    This action does not have tribal implications as specified in 
Executive Order 13175. In this action, the EPA is not addressing any 
tribal implementation plans. This action is limited to the State of 
Texas. Thus, Executive Order 13175 does not apply to this action.

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

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

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

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

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority, 
low-income populations and/or indigenous peoples, as specified in 
Executive Order 12898 (59 FR 7629, February 16, 1994). The 
documentation for this decision is contained in the response to 
comments section of the preamble.

L. Congressional Review Act (CRA)

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The EPA will

[[Page 7246]]

submit a report containing this action and other required information 
to the U.S. Senate, the U.S. House of Representatives, and the 
Comptroller General of the United States prior to publication of the 
rule in the Federal Register. A major rule cannot take effect until 60 
days after it is published in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

M. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 7, 2020. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: January 7, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-01477 Filed 2-6-20; 8:45 am]
 BILLING CODE 6560-50-P


