Federal Register / Vol. 78, No. 237 / Tuesday, December 10, 2013 / Proposed Rules 74057 

of rail vehicles; and the consideration of 

process-related matters. The preliminary 

meeting agenda, along with information 

about the Committee, is available on our 

Web site (www.access-board.gov/rvaac). 

Committee meetings will be open to 

the public and interested persons can 

attend the meetings and communicate 

their views. Members of the public will 

have opportunities to address the 

Committee on issues of interest to them 

during public comment periods 

scheduled on each day of the meeting. 

Members of groups or individuals who 

are not members of the Committee may 

also have the opportunity to participate 

in subcommittees if subcommittees are 

formed. 

The meetings will be accessible to 

persons with disabilities. An assistive 

listening system, communication access 

real-time translation (CART), and sign 

language interpreters will be provided. 

Persons attending the meetings are 

requested to refrain from using perfume, 

cologne, and other fragrances for the 

comfort of other participants (see 

www.access-board.gov/the-board/

policies/fragrance-free-environment for 

more information). 

Persons wishing to provide handouts 

or other written information to the 

Committee are requested to provide 

electronic formats to Paul Beatty via 

email at least five business days prior to 

the meetings so that alternate formats 

can be distributed to Committee 

members. 

David M. Capozzi, 

Executive Director. 

[FR Doc. 2013–29457 Filed 12–9–13; 8:45 am] 

BILLING CODE 8150–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2013–0778; FRL–9904–00– 

Region 9] 

Disapproval of State Implementation 

Plan Revisions; Clark County, Nevada 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

disapprove revisions to the Clark 

County portion of the Nevada State 

Implementation Plan (SIP). The SIP 

contains state and local regulations 

necessary to meet requirements of the 

Clean Air Act (CAA or the Act). We are 

proposing to disapprove a submission 

that would revise the SIP to include 

affirmative defense provisions 

applicable to violations related to excess 

emissions during equipment startup, 

shutdown and malfunction (SSM) 

events. We are taking comments on this 

proposal and plan to follow with a final 

action. 

DATES: Any comments must arrive by 

January 9, 2014. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2013–0778, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. Email: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: 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. 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) 972– 

3248, perez.idalia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 

Outline 

I. The State’s Submittal 

A. What regulation did the State submit? 

B. Are there other versions of the 

submitted regulation? 

C. What is the purpose of the submitted 

regulation? 

D What does the submitted regulation 

provide? 

II. EPA’s Evaluation Criteria 

A. General Framework for State Submittal 

and EPA Review of SIP Revisions 

B. Specific Framework for Evaluating SIP 

Provisions Regarding Excess Emissions 

C. What documents did we use in our 

evaluation? 

III. EPA’s Evaluation and Action 

A. Does the regulation meet the evaluation 

criteria? 

B. EPA Recommendations To Improve the 

Regulation 

C. Proposed Action and Public Comment 

IV. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What regulation did the State 

submit? 

Table 1 identifies the section of the 

Clark County Air Quality Regulations 

(CCAQR) proposed for disapproval, 

with the dates that it 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). 

TABLE 1—SUBMITTED REGULATION

Local agency Regulation number and title Amended Submitted 

DAQEM ........................ Section 25: Affirmative Defense for Excess Emissions Due to Malfunctions, Startups, and Shutdown.May 18, 2010 ............. September 1, 2010. 


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74058 Federal Register / Vol. 78, No. 237 / Tuesday, December 10, 2013 / Proposed Rules 

1 ‘‘CCAQR Section 25: Affirmative Defense for 

Excess Emissions Due to Malfunctions, Startups, 

and Shudown,’’ as adopted by CCBC on May 18, 

2010, page 25–4. 

2CCBC previously submitted a version of Section 

25, which EPA disapproved on March 20, 1984. See 

49 FR 10259, March 20, 1984 (previous disapproval 

of Clark Section 25). See also 69 FR 54006 at 54007 

and 54018, September 7, 2004 (partial approval/

disapproval of Clark New Source Review program); 

77 FR 14862 at 14884, March 13, 2012 (revised 

format for Nevada SIP incorporation by reference); 

and 40 CFR 52.1483. 

On March 1, 2011, NDEP’s September 

1, 2010 submission was deemed 

complete by operation of law, pursuant 

to CAA section 110(k)(1). 

The CCBC also decided to adopt or 

amend other sections of the CCAQR, 

primarily addressing air pollution 

permit procedures, at the same May 18, 

2010 CCBC hearing, and included these 

revisions in the same September 1, 2010 

SIP submission. EPA has already taken 

action upon the other revisions in the 

September 1, 2010 SIP submission. EPA 

proposed a limited approval and limited 

disapproval of these other revisions on 

July 24, 2012 (77 FR 43206) and 

finalized the limited approval and 

limited disapproval on October 18, 2012 

(77 FR 6403). EPA did not address the 

revisions to CCAQR Section 25 in the 

July 24, 2012 proposal or October 18, 

2012 final action. Today’s action 

addresses the remaining portion of 

NDEP’s September 1, 2010 submission, 

specifically CCAQR Section 25. 

B. Are there other versions of the 

submitted regulation? 

We are not certain when CCBC 

originally adopted Section 25, but CCBC 

has amended it at the local level many 

times, most recently on May 18, 2010.1

EPA has not previously approved a 

version of Section 25 into the Nevada 

SIP.2 Therefore, the May 18, 2010 

version of Section 25 is a new submittal 

to the SIP and is not replacing or 

amending pre-existing requirements 

already approved into the SIP. EPA is 

today reviewing only the May 18, 2010 

version of Section 25 and the relevant 

materials associated with it that were 

included in NDEP’s September 1, 2010 

SIP submittal. 

C. What is the purpose of the submitted 

regulation? 

Section 25 and the other CCAQR 

sections submitted on September 1, 

2010 are part of DAQEM’s overall 

program intended to control the health 

and environmental impacts of air 

pollution. Specifically, CCAQR Section 

25 describes the procedures by which 

air pollution sources may assert an 

affirmative defense for violations that 

result from excess emissions due to 

SSM events. CAA Section 110 describes 

procedures for States to develop and 

submit various air pollution regulations 

to EPA as part of SIP revisions. EPA 

interprets the CAA to authorize a state 

to elect to create narrowly drawn 

affirmative defense provisions 

applicable to malfunctions, consistent 

with EPA guidance. Accordingly, the 

Section 25 provision submitted by Clark 

County is not required by the CAA, but 

may be submitted to EPA under CAA 

section 110(a). 

D. What does the submitted regulation 

provide? 

CCAQR Section 25 establishes 

affirmative defenses applicable to 

violations that result from excess 

emissions. Section 25.1 states that 

affirmative defenses for certain excess 

emissions are available in the case of 

violations of all emission standards and 

limitations, except those specifically 

listed in Section 25.1.1(a) through (d), 

which are primarily emission limits or 

standards related to federal 

requirements under the CAA. For 

example, EPA interprets the exceptions 

from 25.1.1(a) to provide that Section 25 

does not operate to create any 

affirmative defense applicable to 

violations of any EPA standards 

promulgated pursuant to CAA section 

111. 

Section 25.2 states that emissions in 

excess of emission limits that were 

caused by equipment malfunction 

constitute a violation. However, a 

source is provided an affirmative 

defense from civil and administrative 

enforcement (except injunctive relief) 

for these violations if it meets the 

reporting requirements in Section 25.6 

and demonstrates compliance with 

Sections 25.2.1(a) through (j), which 

require that: (a) The excess emissions 

resulted from a sudden and unavoidable 

equipment breakdown beyond 

reasonable control; (b) equipment was 

well maintained and operated; (c) 

equipment was repaired expeditiously; 

(d) excess emissions were minimized; 

(e) excess emission impacts were 

minimized; (f) there was no recurring 

pattern of excess emissions; (g) ambient 

air quality standards were not exceeded; 

(h) the excess emissions could not have 

been foreseen or avoided; (i) emission 

monitoring systems were operated if 

practicable; and (j) the response to the 

excess emissions was documented by 

contemporaneous records. 

Section 25.3 similarly states that 

emissions in excess of emission limits 

that were caused by equipment startup 

and shutdown constitute a violation. 

However, a source is provided an 

affirmative defense from civil and 

administrative enforcement (except 

injunctive relief) for these violations if 

it meets the reporting requirements in 

Section 25.6 and demonstrates 

compliance with Sections 25.3.1(a) 

through (h), which require that: (a) The 

excess emissions could not have been 

prevented through prudent planning 

and design; (b) if the excess emissions 

resulted from a bypass of control 

equipment, the bypass was unavoidable 

to prevent loss of life, personal injury or 

severe property damage; (c) equipment 

was well maintained and operated; (d) 

excess emissions were minimized; (e) 

excess emission impacts were 

minimized; (f) ambient air quality 

standards were not exceeded; (g) 

emission monitoring systems were 

operated if practicable; and (h) the 

response to the excess emissions was 

documented by contemporaneous 

records. Section 25.3.2 notes that if 

excess emissions occur during 

scheduled startup and shutdown, then 

those instances shall be treated as other 

malfunctions subject to Section 25.2. 

Section 25.4 states that if excess 

emissions occur due to a malfunction 

during scheduled maintenance, then 

that exceedance will be treated the same 

as other malfunctions subject to 25.2. 

To obtain an affirmative defense, 

Section 25.5 requires sources to 

demonstrate, through information 

required by Section 25.6, that all 

reasonable measures were implemented 

to prevent the excess emissions. 

Section 25.6 requires air pollution 

sources to report to DAQEM regarding 

emissions in excess of permit limits by: 

(a) a notification within 24 hours of 

learning of the excess emissions; and (b) 

a report containing the information 

required by Section 25.6.3 within 72 

hours of the initial notification. Section 

25.6.2 accelerates these reporting 

deadlines where emissions pose 

imminent and substantial danger. 

Section 25.6.3 specifies that the report 

must describe the emissions including: 

(a) location; (b) magnitude; (c) time and 

duration; (d) type of equipment; (e) 

cause; (f) steps taken to remedy and 

prevent future malfunction; (g) steps 

taken to limit emissions; and (h) steps 

taken to comply with applicable permit 

procedures. In the case of continuing or 

recurring excess emissions, Section 

25.6.4 states that the notification 

requirements in Sections 25.6.1 and 

25.6.2 will be satisfied if the source 

provides notification after excess 

emissions are first detected and 

includes in the notification an estimate 

of the time the excess emissions will 

continue. 


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3See, e.g., Essex Chemical v. Ruckelshaus, 486 

F.2d 427, 433 (D.C. Cir. 1973); and Portland Cement 

Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 

1973). 

4See 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’’), pg. 3 of the Attachment. EPA notes that 

at the time of the 1999 SSM Policy, EPA interpreted 

the CAA to allow such affirmative defense 

provisions not only in the case of malfunctions, but 

also in the case of startup and shutdown. For the 

reasons explained later in this proposal, EPA no 

longer interprets the CAA to permit affirmative 

defense provisions for events other than 

malfunctions, because it believes that sources 

should be expected to meet applicable emission 

limits during normal modes of source operation or 

for appropriate alternative emission limits to apply 

during such normal modes of source operation. 

5See, Luminant Generation Co. v. EPA, 714 F.3d 

841 (5th Cir. 2013) (upholding the EPA’s approval 

of an affirmative defense applicable during 

malfunctions in a SIP submission as a permissible 

interpretation of the statute under Chevron step 2 

analysis), cert denied, 187 L. Ed. 2d 45 (October 7, 

2013); Mont. Sulphur & Chemical Co. v. EPA, 666 

F.3d 1174 (9th Cir. 2012); and Ariz. Public Service 

Co. v. EPA, 562 F.3d 1116, 1130 (9th Cir. 2009). 

II. EPA’s Evaluation Criteria 

A. General Framework for State 

Submittal and EPA Review of SIP 

Revisions 

Under the principle of cooperative 

federalism, both states and EPA have 

authorities and responsibilities under 

the CAA with respect to SIPs. Pursuant 

to CAA section 109, 42 U.S.C. 7409, 

EPA promulgates National Ambient Air 

Quality Standards (NAAQS) for criteria 

pollutants, the attainment and 

maintenance of which are considered 

requisite to protect the public health 

and welfare. CAA section 107(a) assigns 

states the primary responsibility for 

assuring that the NAAQS are attained 

and maintained, and CAA section 

110(a)(1), 42 U.S.C. 7410(a)(1), requires 

states to develop and submit to EPA, 

SIPs which provide for NAAQS 

implementation, maintenance, and 

enforcement. CAA section 110(a)(2), 42 

U.S.C. 7410(a)(2), requires each SIP to 

meet the requirements listed in section 

110(a)(2)(A) through (M). 

In developing SIPs, states have broad 

authority to develop the mix of emission 

limitations they deem best suited for the 

particular situation, but this discretion 

is not unbridled. Under CAA section 

110(k), EPA is required to determine 

whether or not SIP submissions in fact 

meet all applicable requirements of the 

Act. EPA is authorized to approve, 

disapprove, partially approve and 

partially disapprove, or conditionally 

approve each SIP submission, as 

appropriate. When a SIP submission 

does not meet the applicable 

requirements of the CAA, EPA is 

obligated to disapprove it, in whole or 

in part, as appropriate. 

CAA sections 110(l) and 193 impose 

additional requirements upon EPA 

when reviewing a state’s proposed SIP 

revision. CAA section 110(l), 42 U.S.C. 

7410(l), provides that EPA may not 

approve a SIP revision if it ‘‘would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

applicable requirement of this chapter.’’ 

In addition, CAA section 193 prohibits 

SIP revisions that would affect control 

measures in effect prior to the 1990 

CAA amendments in any area that is 

designated nonattainment for any 

NAAQS, unless the modification 

insures equivalent to greater emission 

reductions of such air pollutant. 

B. Specific Framework for Evaluating 

SIP Provisions Regarding Excess 

Emissions 

The general framework summarized 

above underlies EPA’s evaluation of SIP 

submissions as they relate to provisions 

related to excess emissions. EPA has a 

longstanding interpretation of the CAA 

with respect to the treatment in SIPs of 

excess emissions during SSM events. 

Central to EPA’s interpretation are the 

definitions of ‘‘emission limitation’’ and 

‘‘emission standard’’ contained in CAA 

section 302(k), 42 U.S.C. 7602(k), which 

are defined as limitations that must be 

met on a continuous basis. Under CAA 

section 110(a)(2)(A), 42 U.S.C. 

7410(a)(2)(A), each SIP must include 

enforceable emission limitations and 

other control measures as may be 

necessary or appropriate to meet 

applicable CAA requirements. In 

addition, under CAA section 

110(a)(2)(C), 42 U.S.C. 7410(a)(2)(C), 

each SIP must provide for the 

enforcement of the measures described 

in CAA section 110(a)(2)(A) and provide 

for the regulation of sources as 

necessary to ensure the attainment and 

maintenance of the NAAQS and 

protection of Prevention of Significant 

Deterioration (PSD) increments. 

While the CAA requires that emission 

limitations in a SIP must be met on a 

‘‘continuous’’ basis, practical realities or 

circumstances may create difficulties in 

meeting a legally required emission 

limit continuously 100% of the time. 

Case law holding that technology-based 

standards should account for the 

practical realities of technology 

supports EPA’s view that an 

enforcement program under a SIP that 

incorporates some level of flexibility is 

reasonable and consistent with the 

overall intent of the CAA.3 While EPA 

views all excess emissions as violations 

of emission limitations or emission 

standards, we recognize that, in certain 

situations, imposition of a civil penalty 

for sudden and unavoidable 

malfunctions caused by circumstances 

entirely beyond a source’s control may 

not be appropriate. 

In addressing excess emissions due to 

sudden and unavoidable malfunctions, 

EPA has provided guidance on three 

approaches states may elect to use: (1) 

Traditional enforcement discretion; (2) 

SIP provisions that address the exercise 

of enforcement discretion by state 

personnel; and (3) SIP provisions that 

provide a narrowly tailored affirmative 

defense to civil penalties. Under the 

first approach, the State (or another 

entity, such as EPA, seeking to enforce 

a violation of the SIP) may consider the 

circumstances surrounding the event in 

determining whether to pursue 

enforcement. Under the second 

approach, states may elect to create SIP 

provisions that provide parameters for 

the exercise of enforcement discretion 

by state personnel, so long as they do 

not adversely affect enforcement by EPA 

or citizens. Under the third approach, 

states may elect to create SIP provisions 

that establish an affirmative defense that 

may be raised by the defendant in the 

context of an enforcement proceeding 

for civil penalties (not injunctive relief), 

if the defendant has proven that certain 

criteria have been met. 

Most relevant to this action, EPA 

interprets the CAA to allow SIP 

provisions that provide an affirmative 

defense, so long as they are 

appropriately drawn. EPA has issued 

guidance specifically concerning 

affirmative defense provisions in SIPs.4

EPA guidance recommends criteria that 

it considers necessary to assure that the 

affirmative defense is consistent with 

CAA requirements for SIP provisions. 

EPA believes that narrowly-tailored 

affirmative defense provisions can 

supply flexibility both to ensure that 

emission limitations are ‘‘continuous’’ 

as required by CAA section 302(k), 

because any violations remain subject to 

a claim for injunctive relief, and to 

provide limited relief for penalties for 

malfunctions that are beyond the 

source’s control where the source has 

taken necessary steps to minimize the 

likelihood and extent of any such 

violation. Several courts have agreed 

with this approach.5 Neither the 

enforcement discretion nor the 

affirmative defense approaches may 

waive reporting requirements for the 

violation. States are not required to 

employ an affirmative defense 

approach, but if they choose to do so, 


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74060 Federal Register / Vol. 78, No. 237 / Tuesday, December 10, 2013 / Proposed Rules 

6See 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’’); see also EPA’s February 4, 2013 

Statutory, Regulatory, and Policy Context 

Memorandum for the February 22, 2013 Proposed 

SSM SIP Calls. 

7See, Luminant Generation Co. v. EPA, 714 F.3d 

841 (5th Cir. 2013) (upholding the EPA’s approval 

of an affirmative defense applicable during 

malfunctions in a SIP submission as a permissible 

interpretation of the statute under Chevron step 2 

analysis), cert denied, 187 L. Ed. 2d 45 (October 7, 

2013); See also, EPA’s February 22, 2013 Proposed 

SIP Calls (78 FR 12460, 12480). 

8See EPA’s February 22, 2013 Proposed SIP Calls 

(78 FR 12460, 12480). 

9See EPA’s February 22, 2013 Proposed SIP Calls 

(78 FR 12460, 12478). 

10EPA notes that a state can elect to adopt 

alternative emission limitations that apply to 

normal modes of source operation, such as startup 

and shutdown, so long as these provisions are 

consistent with CAA requirements. EPA’s February 

22, 2013 Proposed SSM SIP Calls provides guidance 

on how such SIP provisions may be developed to 

meet CAA requirements. 

EPA will evaluate the state’s SIP 

provisions for consistency with the Act 

as interpreted by our policy and 

guidance, including those documents 

listed in section II.C below. 

In CCAQR Section 25 as submitted, 

DAQEM has elected to create an 

affirmative defense provision applicable 

to excess emissions for SSM events. 

EPA acknowledges that DAQEM 

attempted to develop these affirmative 

defenses in NDEP’s September 1, 2010 

SIP submittal consistent with EPA 

guidance at that time. However, EPA 

has reexamined its interpretation of the 

CAA with respect to affirmative 

defenses and accordingly believes that 

such affirmative defenses are only 

appropriate in the case of unplanned 

events like malfunctions, not in the case 

of planned events such as startup and 

shutdown for which sources should be 

expected to comply with applicable SIP 

emission limitations. Under CAA 

sections 110(k) and 110(l), EPA is 

obligated to determine whether SIP 

submissions in fact meet CAA 

requirements and our interpretation of 

the Act at the time EPA takes action on 

a SIP submission. 

C. What documents did we use in our 

evaluation? 

EPA’s interpretation of the Act as it 

applies to SIP provisions that address 

excess emissions occurring during SSM 

periods is set forth in a series of 

guidance documents. These include: (1) 

A memorandum dated September 28, 

1982, from Kathleen M. Bennett, 

Assistant Administrator for Air, Noise, 

and Radiation, entitled ‘‘Policy on 

Excess Emissions During Startup, 

Shutdown, Maintenance, and 

Malfunctions’’ (1982 Policy); (2) a 

memorandum dated February 15, 1983, 

from Kathleen M. Bennett, Assistant 

Administrator for Air, Noise, and 

Radiation, also entitled, ‘‘Policy on 

Excess Emissions During Startup, 

Shutdown, Maintenance, and 

Malfunctions’’ (1983 Policy); (3) a 

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); 

and (4) a memorandum dated December 

5, 2001, from Eric Schaeffer, Director, 

Office of Regulatory Enforcement, Office 

of Enforcement and Compliance 

Assurance, and John S. Seitz, Director, 

Office of Air Quality Planning and 

Standards, Office of Air and Radiation, 

entitled, ‘‘Re-Issuance of Clarification— 

State Implementation Plans (SIPs): 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (2001 Policy). 

EPA’s interpretation of the CAA with 

respect to SIP provisions that address 

excess emissions during SSM events has 

been applied in rulemaking, including, 

but not limited to: (1) EPA’s ‘‘Approval 

and Promulgation of Implementation 

Plans; Texas; Excess Emissions During 

Startup, Shutdown, Maintenance, and 

Malfunction Activities,’’ 75 FR 68989 

(Nov. 10, 2010); (2) EPA’s ‘‘Federal 

Implementation Plan for the Billings/

Laurel, MT, Sulfur Dioxide Area,’’ 73 FR 

21418 (Apr. 21, 2008); and (3) EPA’s 

‘‘Finding of Substantial Inadequacy of 

Implementation Plan: Call for Utah State 

Implementation Plan Revision,’’ April 

18, 2011 (76 FR 21639). 

In addition, EPA recently issued a 

proposal in response to a petition for 

rulemaking concerning CAA 

requirements for SIP provisions that 

address excess emissions, reiterating 

EPA’s interpretation of the CAA with 

respect to such provisions.6 In this 

recent action, EPA specifically 

addressed the CAA requirements with 

respect to SIP provisions that provide an 

affirmative defense for violations of 

emission limitations due to excess 

emissions during SSM events. 

A copy of each document listed in 

this section is available in the docket for 

this rulemaking. 

III. EPA’s Evaluation and Action 

A. Does the regulation meet the 

evaluation criteria? 

NDEP’s September 1, 2010 

submission of CCAQR Section 25 fails 

to meet the evaluation criteria in at least 

two significant respects. 

First, 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 for 

violations due to excess emissions 

during startup and shutdown. EPA 

believes that providing affirmative 

defenses for 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 304,7 which provide for potential 

civil penalties for violations of SIP 

requirements.8

By contrast, SIP provisions providing 

affirmative defenses can be appropriate 

for malfunctions because, by definition 

and unlike planned startups and 

shutdowns, malfunctions are unforeseen 

and could not have been avoided by the 

source, and the source will have taken 

steps to prevent the violation and to 

minimize the effects of the violation 

after it occurs. In such circumstances, 

EPA interprets the Act to allow 

narrowly drawn affirmative defense 

provisions that may provide relief from 

civil penalties (but not injunctive relief) 

to sources, when their conduct justifies 

this relief.9 Such is not the case with 

planned and predictable events, such as 

startups and shutdowns, during which 

sources should be expected to comply 

with applicable SIP emission limitations 

and should not be accorded relief from 

civil penalties if they fail to do so.10

Providing an affirmative defense for 

monetary penalties for violations that 

result from planned events is 

inconsistent with the basic premise that 

the excess emissions were beyond the 

source’s control, and thus is 

diametrically opposed to the intended 

purpose of such an affirmative defense 

to encourage better compliance even by 

sources for which 100% compliance is 

not possible. 

Second, the criteria for obtaining an 

affirmative defense for excess emissions 

during malfunctions in CCAQR Section 

25.2 are not fully consistent with CAA 

requirements. EPA has guidance making 

recommendations for criteria 

appropriate for affirmative defense 

provisions that would be consistent 

with the CAA. EPA’s 1999 Policy and 

the February 22, 2013 Proposed SSM 

SIP Call lay out these criteria. These are 


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Federal Register / Vol. 78, No. 237 / Tuesday, December 10, 2013 / Proposed Rules 74061 

11See page 3 of the Attachment to EPA’s 1999 

Policy on SSM events. 12See CCAQR Section 11.2, ‘‘Ambient Air 

Quality Standards,’’ adopted by CCBC on 10/7/03, 

submitted by NDEP to EPA on 10/23/03, and 

approved by EPA on 9/7/04 (69 FR 54006); 40 CFR 

50.4–50.13. 13See, e.g. the 24-hour standard for PM2.5 of 65 

mg/m3 in CCAQR Section 11.2, which is 

inconsistent with the 24-hour standard set on 

October 17, 2006 of 35 mg/m3 (71 FR 61144). 

guidance recommendations 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 

the affirmative defense meets CAA 

requirements. 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. 

Specifically, EPA’s guidance notes 

that affirmative defenses are ‘‘not 

appropriate for areas and pollutants 

where a single source or small group of 

sources has the potential to cause an 

exceedance of the NAAQS or PSD 

increments.’’ 11 CCAQR Section 

25.2.1(g) states that sources with 

emissions in excess of an applicable 

emission limitation due to a 

malfunction have an affirmative defense 

if the source has demonstrated (among 

other things) that ‘‘During the period of 

excess emissions there were no 

exceedances of the relevant ambient air 

quality standards established in Section 

11 that could be attributed to the 

emitting source.’’ This deviates from 

EPA’s guidance because CCAQR Section 

11.2 was adopted and submitted in 2003 

and lists ‘‘relevant ambient air quality 

standards’’ that do not account for all of 

the NAAQS promulgated since the 

regulation was approved into the SIP in 

2004.12 As a result, CCAQR Section 25.2 

would allow an affirmative defense for 

an exceedance of an applicable emission 

limitation even if that exceedance 

violated a NAAQS that is not listed in 

CCAQR Section 11.2.13

In addition, Section 25.2.1(g) is not 

fully consistent with CAA requirements 

because it fails to include consideration 

of the impacts of excess emissions 

during a malfunction on the PSD 

increments. As noted above, Section 

25.2.1(g) only mentions the relevant 

ambient air quality standards in Section 

11, and Section 11 also does not 

mention the PSD increments. SIP 

requirements are not limited to those 

specific requirements for designated 

nonattainment areas; SIPs must also 

meet requirements related to PSD in 

attainment areas. Similarly, SIP 

provisions addressing affirmative 

defense provisions cannot be limited 

exclusively to impacts on 

nonattainment areas. 

B. EPA Recommendations To Improve 

the Regulation 

CCAQR Section 25.6 requires sources 

to provide information to DAQEM 

regarding excess emissions caused by 

SSM. Such reporting would enable 

DAQEM to review, evaluate, and utilize 

the information as a tool in its air 

quality planning and management 

efforts and help provide for attainment 

and maintenance of the NAAQS and 

other applicable requirements of the 

Act. This reporting would also facilitate 

effective enforcement, if appropriate. As 

a result, while it is not appropriate at 

this time for EPA to separately approve 

Section 25.6 as submitted in context of 

the overall Section 25, EPA would 

support a SIP revision creating such 

reporting requirements, independent of 

the problematic affirmative defense 

provisions elsewhere in Section 25. 

As stated in Section II.B and 

elsewhere above, EPA interprets the 

CAA to allow only narrowly drawn 

affirmative defense provisions that are 

available for events that are entirely 

beyond a source’s control. Thus, an 

affirmative defense may be appropriate 

for events like malfunctions, which are 

sudden and unavoidable events that 

cannot be foreseen or planned for. The 

underlying premise for an affirmative 

defense provision is that the source is 

properly designed, operated and 

maintained, and could not have taken 

action to prevent the exceedance. 

Because a qualifying source could not 

have foreseen or prevented the event, 

the affirmative defense is available to 

provide relief from monetary penalties 

that could result from an event beyond 

a source’s control. Therefore, it may be 

possible for DAQEM to revise Section 

25 to provide an affirmative defense for 

malfunctions consistent with CAA 

requirements, as recommended in EPA’s 

SSM Policy. 

The legal and factual basis supporting 

the concept of an affirmative defense for 

malfunctions does not support 

providing an affirmative defense for 

normal modes of operation like startup 

and shutdown. Such events are planned 

and predictable. Sources should be 

designed, operated, and maintained to 

comply with applicable emission 

limitations during normal and 

predictable source operation. Because 

startup and shutdown periods are part 

of a source’s normal operations, the 

same approach to compliance with, and 

enforcement of, applicable emission 

limitations during those periods should 

apply as otherwise applies during a 

source’s normal operations. If justified, 

the state can develop and submit to EPA 

for approval as part of the SIP, 

alternative emission limitations or 

control measures that apply during 

startup and shutdown, if a source 

cannot meet the otherwise applicable 

emission limitations in the SIP. 

However, even if a source is a suitable 

candidate for alternative SIP emission 

limitations during startup and 

shutdown, that does not justify the 

creation of an affirmative defense in the 

case of excess emissions during such 

events. Because these events are 

planned, EPA believes that sources 

should be able to comply with 

applicable emission limitations during 

these periods of time. To provide an 

affirmative defense for violations that 

occur during planned and predictable 

events for which sources should have 

been expected to comply is tantamount 

to providing relief from civil penalties 

for a planned violation. Accordingly, 

EPA recommends that NDEP should 

eliminate the affirmative defense 

provisions in Section 25 applicable to 

startup and shutdown. 

C. Proposed Action and Public 

Comment 

As discussed in Section II.B and 

elsewhere above, affirmative defense 

provisions that include periods of 

normal source operation that are within 

a source’s control, such as planned 

startup and shutdown, are inconsistent 

with the requirements of CAA section 

110(a) and the enforcement structure 

provided in CAA sections 113 and 304. 

Therefore, the affirmative defense 

provision for excess emissions during 

startup and shutdown created in 

Sections 25.1, 25.3 and elsewhere in 

CCAQR Section 25 do not meet CAA 

requirements for SIPs. In addition, the 

affirmative defense provisions for 

malfunctions in Section 25.2 do not 

fully comply with the CAA as discussed 

in Section III.A above, and thus also do 

not meet CAA requirements. 

As authorized in CAA section 

110(k)(3), we are proposing to 

disapprove CCAQR Section 25 in 

NDEP’s September 1, 2010 SIP 

submission because of the deficiencies 

discussed in section III.A above. 

Affirmative defenses for excess 

emissions and other elements of Section 

25 are not required by the Act, and the 

lack of affirmative defenses for excess 

emissions does not make a SIP deficient. 

Therefore, if this disapproval is 

finalized as proposed, there would be 

no CAA sanction implications as 

described in CAA section 179 and 40 

CFR 52.31, and no Federal 


emcdonald on DSK67QTVN1PROD with PROPOSALS
74062 Federal Register / Vol. 78, No. 237 / Tuesday, December 10, 2013 / Proposed Rules 

14Small entities include small businesses, small 

organizations, and small governmental 

jurisdictions. For purposes of assessing the impacts 

of this notice on small entities, small entity is 

defined as: (1) A small business that is a small 

industrial entity as defined in the U.S. Small 

Business Administration (SBA) size standards (see 

13 CFR 121.201); (2) a small governmental 

jurisdiction that is a government of a city, county, 

town, school district, or special district with a 

population of less than 50,000; or (3) a small 

organization that is any not-for-profit enterprise that 

is independently owned and operated and is not 

dominant in its field. 

Implementation Plan (FIP) implications 

as described in CAA section 110(c). 

We will accept comments from the 

public on this proposed disapproval for 

the next 30 days. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This proposed action is not a 

‘‘significant regulatory action’’ subject to 

review by the Office of Management and 

Budget (OMB) under Executive Order 

(EO) 12866 (58 FR 51735, October 4, 

1993) and is therefore not subject to 

review under EO 12866 and EO 13563 

(76 FR 3821, January 21, 2011). 

B. Paperwork Reduction Act 

This proposed action does not impose 

an information collection burden under 

the provisions of the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.) 

because this proposed action under 

CAA section 110 will not in and of itself 

create any new information collection 

burdens but simply disapproves certain 

State requirements for inclusion into the 

SIP. Burden is defined at 5 CFR 

1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA, 

5 U.S.C. 601 et seq.) generally requires 

an agency to prepare a regulatory 

flexibility analysis of any rule subject to 

notice-and-comment rulemaking 

requirements under the Administrative 

Procedure Act or any other statute 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities.14 This proposed SIP 

disapproval under section 110 and 

subchapter I, part D of the CAA will not 

have a significant impact on a 

substantial number of small entities 

because it will not create any new 

requirements but simply disapproves 

certain State requirements for inclusion 

in the SIP. Accordingly, it affords no 

opportunity for EPA to fashion for small 

entities less burdensome compliance or 

reporting requirements or timetables or 

exemptions from all or part of the rule. 

Therefore, I certify that this action will 

not have a significant economic impact 

on a substantial number of small entities 

under the RFA. Moreover, due to the 

nature of the Federal-State relationship 

under the CAA, preparation of 

flexibility analysis would constitute 

Federal inquiry into the economic 

reasonableness of State action. The CAA 

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 

This action contains no Federal 

mandates under Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA, 

2 U.S.C. 1531–1538), for State, local, or 

tribal governments or the private sector. 

EPA has determined that the proposed 

disapproval action 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 action proposes to 

disapprove 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 

EO 13132, entitled ‘‘Federalism’’ (64 

FR 43255, August 10, 1999), 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 EO 13132 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.’’ 

This proposed action does not have 

Federalism implications as specified in 

EO 13132. 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, as specified in EO 

13132, because it merely disapproves 

certain State requirements for inclusion 

into the SIP and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

CAA. Thus, EO 13132 does not apply to 

this action. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in EO 13175 

(65 FR 67249, November 9, 2000). In 

this action, EPA is not addressing any 

tribal implementation plans. This action 

is limited to Clark County, Nevada, and 

the SIP provisions which are the subject 

of the proposed action do not apply to 

sources of emissions located in Indian 

country. Thus, EO 13175 does not apply 

to this action. However, EPA invites 

comment on this proposed rule from 

tribal officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 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 

EO 13045 has the potential to influence 

the regulation. This proposed action is 

not subject to EO 13045 because it is not 

an economically significant regulatory 

action based on health or safety risks 

subject to EO 13045. This proposed 

action under section 110 and subchapter 

I, part D of the CAA will not in and of 

itself create any new regulations but 

simply disapproves certain State 

requirements for inclusion into the SIP. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed action is not a 

‘‘significant energy action’’ as defined in 

EO 13211 (66 FR 28355, May 22, 2001), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution or use of energy. This 

proposed action under section 110 and 

subchapter I, part D of the CAA will not 

in and of itself create any new 

regulations, but simply disapproves 

certain State requirements for inclusion 

into the SIP. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 237 / Tuesday, December 10, 2013 / Proposed Rules 74063 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

EPA believes that this proposed 

action is not subject to requirements of 

section 12(d) of NTTAA because 

application of those requirements would 

be inconsistent with the CAA. We also 

note that this proposed rulemaking does 

not involve technical standards. 

Therefore, EPA is not considering the 

use of any voluntary consensus 

standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EO 12898 (59 FR 7629, February 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 

proposed action. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the CAA. Accordingly, this 

action merely proposes to disapprove 

certain State requirements for inclusion 

into the SIP under section CAA 110 and 

will not in and of itself create any new 

requirements. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, State 

implementation plan, Volatile organic 

compounds. 

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

Dated: November 26, 2013. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2013–29450 Filed 12–9–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 131021878–3878–01] 

RIN 0648–XC927 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands; 2014 and 2015 

Harvest Specifications for Groundfish 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes 2014 and 

2015 harvest specifications, 

apportionments, and prohibited species 

catch allowances for the groundfish 

fisheries of the Bering Sea and Aleutian 

Islands (BSAI) management area. This 

action is necessary to establish harvest 

limits for groundfish during the 2014 

and 2015 fishing years, and to 

accomplish the goals and objectives of 

the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area. The 

intended effect of this action is to 

conserve and manage the groundfish 

resources in the BSAI in accordance 

with the Magnuson-Stevens Fishery 

Conservation and Management Act. 

DATES: Comments must be received by 

January 9, 2014. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2013–0152, by any of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov/

#!docketDetail;D=NOAA-NMFS-2013- 

0152, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Address written comments to 

Glenn Merrill, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region NMFS, Attn: 

Ellen Sebastian. Mail comments to P.O. 

Box 21668, Juneau, AK 99802–1668. 

• Fax: Address written comments to 

Glenn Merrill, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region NMFS, Attn: 

Ellen Sebastian. Fax comments to 907– 

586–7557. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

Electronic copies of the Alaska 

Groundfish Harvest Specifications Final 

Environmental Impact Statement (Final 

EIS), Supplementary Information Report 

(SIR) and the Initial Regulatory 

Flexibility Analysis (IRFA) prepared for 

this action may be obtained from 

http://www.regulations.gov or from the 

Alaska Region Web site at http://

alaskafisheries.noaa.gov. The final 2012 

Stock Assessment and Fishery 

Evaluation (SAFE) report for the 

groundfish resources of the BSAI, dated 

November 2012, is available from the 

North Pacific Fishery Management 

Council (Council) at 605 West 4th 

Avenue, Suite 306, Anchorage, AK 

99501–2252, phone 907–271–2809, or 

from the Council’s Web site at http://

alaskafisheries.noaa.gov/npfmc. The 

draft 2013 SAFE report for the BSAI will 

be available from the same sources in 

November 2013. 

FOR FURTHER INFORMATION CONTACT: 

Steve Whitney, 907–586–7228. 

SUPPLEMENTARY INFORMATION: Federal 

regulations at 50 CFR part 679 

implement the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

(FMP) and govern the groundfish 

fisheries in the BSAI. The Council 

prepared the FMP and NMFS approved 

it under the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). General 

regulations governing U.S. fisheries also 

appear at 50 CFR part 600. 

The FMP and its implementing 

regulations require NMFS, after 

consultation with the Council, to 

specify annually the total allowable 

catch (TAC) for each target species 

category. The sum TAC for all 

groundfish species must be within the 

optimum yield (OY) range of 1.4 million 

to 2.0 million metric tons (mt) (see 

§ 679.20(a)(1)(i)). Section 679.20(c)(1) 

further requires NMFS to publish 

proposed harvest specifications in the 

Federal Register and solicit public 


emcdonald on DSK67QTVN1PROD with PROPOSALS