
[Federal Register Volume 79, Number 47 (Tuesday, March 11, 2014)]
[Rules and Regulations]
[Pages 13564-13567]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05106]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2013-0778; FRL-9907-56-Region 9]


Disapproval of State Implementation Plan Revisions; Clark County, 
Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
disapproval of revisions to the Clark County portion of the Nevada 
State Implementation Plan (SIP). This action concerns affirmative 
defense provisions applicable to violations related to excess emissions 
from sources during equipment startup, shutdown and malfunction (SSM) 
events. Under authority of the Clean Air Act (CAA or the Act), this 
action identifies deficiencies with these provisions preventing EPA's 
approval of them as SIP revisions.

DATES: This rule is effective on April 10, 2014.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2013-0778 for

[[Page 13565]]

this action. Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California 94015-3901. 
While all documents in the docket are listed at www.regulations.gov, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material, large maps), and some may not be 
publicly available in either location (e.g., CBI). To inspect the hard 
copy materials, please schedule an appointment during normal business 
hours with the contact listed in the FOR FURTHER INFORMATION CONTACT 
section.

FOR FURTHER INFORMATION CONTACT: Idalia Perez, EPA Region IX, (415) 
942-3248, Perez.Idalia@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On December 10, 2013 (78 FR 74057), EPA proposed to disapprove the 
following section of the Clark County Air Quality Regulations (CCAQR) 
that was amended by the Clark County Board of Commissioners (CCBC) and 
submitted to EPA on behalf of the Clark County Department of Air 
Quality and Environmental Management (DAQEM) by the State of Nevada 
Division of Environmental Protection (NDEP) for incorporation into the 
Nevada SIP.

----------------------------------------------------------------------------------------------------------------
           Local agency            Regulation No. and title        Amended                   Submitted
----------------------------------------------------------------------------------------------------------------
DAQEM............................  Section 25: Affirmative   May 18, 2010.......  September 1, 2010.
                                    Defense for Excess
                                    Emissions Due to
                                    Malfunctions, Startups,
                                    and Shutdown.
----------------------------------------------------------------------------------------------------------------

    We proposed to disapprove this SIP submission because some of the 
rule provisions do not satisfy the requirements of section 110 and part 
D of title I of the Act. These provisions include the following:
    1. Sections 25.1 and 25.3 are inconsistent with the requirements 
provided in CAA section 110(a) and conflict with the fundamental 
enforcement structure provided in CAA sections 113 and 304, because 
they create an affirmative defense to monetary penalties for violations 
due to excess emissions from sources during startup and shutdown 
events. EPA believes that providing an affirmative defense applicable 
to avoidable violations, such as those resulting from excess emissions 
during planned events such as startups and shutdowns that are within 
the source's control, is inconsistent with the requirements provided in 
CAA section 110(a) and the fundamental enforcement structure provided 
in CAA sections 113 and 304, which provide for potential civil 
penalties for violations of SIP requirements.
    2. The criteria for qualifying for an affirmative defense to 
monetary penalties for violations due to excess emissions from sources 
during malfunction events in CCAQR Section 25.2 are not fully 
consistent with CAA requirements. EPA has guidance making 
recommendations for criteria appropriate for affirmative defense 
provisions applicable in the case of malfunction events that would be 
consistent with the CAA. EPA's 1999 SSM Policy \1\ and the February 22, 
2013 Proposed SSM SIP Call \2\ lay out these criteria. These criteria 
are guidance and states do not need to track EPA's recommended wording 
verbatim, but states should have SIP provisions that are consistent 
with these recommendations in order to assure that an affirmative 
defense for monetary penalties applicable in the case of malfunction 
events satisfies EPA's interpretation of CAA requirements. EPA 
interprets the CAA to allow only narrowly drawn affirmative defense 
provisions. The affirmative defense criteria set forth in Section 
25.2.1 are not sufficiently consistent with these recommended criteria 
for affirmative defense provisions in SIPs for malfunctions.
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    \1\ Memorandum dated September 20, 1999, from Steven A. Herman, 
Assistant Administrator for Enforcement and Compliance Assurance, 
and Robert Perciasepe, Assistant Administrator for Air and 
Radiation, entitled ``State Implementation Plans: Policy Regarding 
Excess Emissions During Malfunctions, Startup, and Shutdown'' 
(``1999 Policy'').
    \2\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, February 22, 2013 (78 FR 12460) 
(``February 22, 2013 Proposed SSM SIP Calls''); also EPA's February 
4, 2013 Statutory, Regulatory, and Policy Context Memorandum for the 
February 22, 2013 Proposed SSM SIP Calls.
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    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submission.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received only one set of comments, from Laurie 
Williams, Sierra Club, letter dated January 9, 2014.
    The comments and our responses are summarized below.
    Comment #1: Sierra Club supports EPA's proposal because the 
affirmative defenses provided in Clark County Section 25 ``conflict 
with the CAA and EPA policy.'' In particular, the commenter stated that 
EPA should not approve the SIP revision at issue because the Agency is 
required to disapprove any SIP revision that does not meet all 
applicable CAA requirements or that would interfere with any applicable 
CAA requirement.
    Response #1: EPA acknowledges the commenter's support, in part, for 
the proposed action. EPA agrees that any SIP revision must be measured 
against the applicable substantive requirements of the CAA and the 
requirements of section 110(l) in particular. In this action, EPA has 
determined that Sections 25.1, 25.2, and 25.3 are inconsistent with the 
requirements provided in the CAA for the reasons explained in the 
proposed action.
    Comment #2: Sierra Club disagrees with EPA's statements in the 
proposal that affirmative defenses for monetary penalties in the case 
of violations due to excess emissions during malfunctions may be 
consistent with the CAA if appropriately drawn. The commenter asserts 
that such affirmative defenses contravene the CAA ``because they limit 
courts' discretion to assess penalties for violations and prevent 
courts from considering statutory factors.'' The commenter further 
argues that such affirmative defense provisions are inconsistent with 
the CAA requirement that SIP emission limits be ``continuous'' and that 
such provisions ``critically disrupt the fundamental enforcement 
structure of the Act.'' The commenter provides additional assertions to 
support this position and includes its comments on another EPA proposed 
rule related to affirmative defense provisions in Oklahoma.
    Response #2: EPA is disapproving the SIP revision with respect to 
CCAQR

[[Page 13566]]

Section 25 for the reasons set forth in the proposal and summarized 
above. The commenter argues that EPA should identify additional reasons 
for disapproval, including an argument that CAA section 113 
unequivocally precludes such affirmative defenses. As explained in the 
proposal, EPA interprets the CAA to allow appropriately drawn 
affirmative defenses in SIP provisions in the case of violations due to 
excess emissions during malfunction events, if the affirmative defense 
is consistent with guidance recommendations for such provisions. 
However, EPA notes that it is not necessary to respond to the substance 
of this comment because our action would not change were we to include 
additional reasons for disapproval. EPA has concluded that the 
affirmative defense provisions both for malfunction events and for 
startup and shutdown events embodied in CCAQR Section 25 are not 
consistent with EPA's interpretation of the CAA for such provisions for 
the reasons articulated in the proposal, regardless of the additional 
theories advanced by the commenter in this comment.
    In the event that DAQEM elects to respond to our disapproval action 
by revising and resubmitting CCAQR Section 25 to address the 
deficiencies we have identified in the current provisions, the 
commenter will then have an opportunity to pursue its argument that 
there are additional reasons for disapproval of the revised affirmative 
defense provisions. If that occurs in the future, EPA will evaluate the 
substance of the new SIP submission in light of the laws, policies, and 
other relevant circumstances in effect at that time.

III. EPA Action

    No comments were submitted that change our assessment of CCAQR 
Section 25 as described in our proposed action. Therefore, as 
authorized in section 110(k)(3) of the Act, EPA is finalizing a 
disapproval of Section 25 as submitted. Affirmative defenses for excess 
emissions and other elements of Section 25 are not required by the Act, 
and the absence of affirmative defenses for excess emissions does not 
make a SIP deficient. Therefore, there are no sanction implications as 
described in CAA section 179 and 40 CFR 52.31, and no Federal 
Implementation Plan (FIP) implications as described in CAA section 
110(c) as a result of this disapproval. Note that the submitted Section 
25 has been adopted locally by the DAQEM, and EPA's final disapproval 
does not prevent sources from asserting an affirmative defense in state 
court. The state law affirmative defenses will not, however, be 
effective in the event of any action to enforce the requirements of the 
SIP pursuant to CAA section 304 or section 113.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP disapprovals under section 110 and 
title I, part D of the Clean Air Act do not create any new requirements 
but simply disapprove requirements that the State is already imposing. 
Therefore, because EPA's disapproval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule. EPA has determined that 
the disapproval action promulgated does not include a Federal mandate 
that may result in estimated costs of $100 million or more to either 
State, local, or tribal governments in the aggregate, or to the private 
sector. This Federal action disapproves pre-existing requirements under 
State or local law, and imposes no new requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation. This rule 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

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levels of government, as specified in Executive Order 13132, because it 
merely disapproves a State rule implementing a Federal standard, and 
does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it disapproves a 
State rule implementing a Federal standard.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. The EPA believes that VCS are inapplicable to this action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 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. EPA will submit a report containing this 
rule 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. 
section 804(2). This rule will be effective April 10, 2014.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 12, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 24, 2014.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart DD--Nevada

0
2. Section 52.1483 is amended by adding paragraph (a)(1)(iv) to read as 
follows:


Sec.  52.1483  Malfunction regulations.

    (a) * * *
    (1) * * *
    (iv) Section 25, ``Affirmative Defense for Excess Emissions Due to 
Malfunctions, Startup, and Shutdown,'' submitted by the Governor on 
September 1, 2010.

[FR Doc. 2014-05106 Filed 3-10-14; 8:45 am]
BILLING CODE 6560-50-P


