This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

82948 

Vol. 89, No. 199 

Tuesday, October 15, 2024 

POSTAL SERVICE 

39 CFR Part 111 

Dual Shipping Labels Discontinued 

AGENCY: Postal ServiceTM. 

ACTION: Proposed rule. 

SUMMARY: The Postal Service is 

proposing to amend Mailing Standards 

of the United States Postal Service, 

Domestic Mail Manual (DMM®) to 

discontinue the use of dual shipping 

labels. 

DATES: Submit comments on or before 

November 14, 2024. 

ADDRESSES: Mail or deliver written 

comments to the manager, Product 

Classification, U.S. Postal Service, 475 

L’Enfant Plaza SW, Room 4446, 

Washington, DC 20260–5015. If sending 

comments by email, include the name 

and address of the commenter and send 

to PCFederalRegister@usps.gov, with a 

subject line of ‘‘Dual Shipping Labels’’. 

Faxed comments are not accepted. 

You may inspect and photocopy all 

written comments, by appointment 

only, at USPS® Headquarters Library, 

475 L’Enfant Plaza SW, 11th Floor 

North, Washington, DC 20260. These 

records are available for review on 

Monday through Friday, 9 a.m.–4 p.m., 

by calling 202–268–2906. 

FOR FURTHER INFORMATION CONTACT: 

Catherine Knox at (202) 268–5636 or 

Garry Rodriguez at (202) 268–7281. 

SUPPLEMENTARY INFORMATION: All 

submitted comments and attachments 

are part of the public record and subject 

to disclosure. Do not enclose any 

material in your comments that you 

consider to be confidential or 

inappropriate for public disclosure. 

Background 

On January 21, 2018, the Postal 

Service revised the DMM to provide 

information regarding the use of dual 

shipping labels based on feedback that 

some of our industry shipping partners 

had adopted the practice of using 

shipping labels which included both the 

USPS® and their own address formats to 

address their items. 

Proposal 

The Postal Service has reviewed the 

practice of using dual shipping labels 

and has found that this practice no 

longer serves the interests of the Postal 

Service. As a result, the Postal Service 

is proposing to discontinue the use of 

dual shipping labels. Items bearing dual 

shipping labels should not be accepted 

and may be returned to the sender. 

The Postal Service is proposing to 

implement this change effective January 

1, 2025. 

Although exempt from the notice and 

comment requirements of the 

Administrative Procedure Act (5 U.S.C. 

553(b), (c)) regarding proposed 

rulemaking by 39 U.S.C. 410(a), the 

Postal Service invites public comment 

on the proposed revisions to Mailing 

Standards of the United States Postal 

Service, Domestic Mail Manual (DMM), 

incorporated by reference in the Code of 

Federal Regulations. 

We will publish an appropriate 

amendment to 39 CFR part 111 to reflect 

these changes. 

List of Subjects in 39 CFR Part 111 

Administrative practice and 

procedure, Postal Service. 

Accordingly, the Postal Service 

proposes the following changes to 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM), incorporated by reference in the 

Code of Federal Regulations (see 39 CFR 

111.1): 

PART 111—[AMENDED] 

■ 1. The authority citation for 39 CFR 

part 111 continues to read as follows: 

Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– 

307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 

401–404, 414, 416, 3001–3018, 3201–3220, 

3401–3406, 3621, 3622, 3626, 3629, 3631– 

3633, 3641, 3681–3685, and 5001. 

■ 2. Revise the Mailing Standards of the 

United States Postal Service, Domestic 

Mail Manual (DMM) as follows: 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM) 

* * * * * 

600 Basic Standards for All Mailing 

Services 

* * * * * 

602 Addressing 

* * * * * 

10.0 Dual Shipping Labels 

[Revise the text of 10.0 to read as 

follows:] 

Mailers must not use dual shipping 

labels. Items bearing dual shipping 

labels should not be accepted and may 

be returned to the sender. 

* * * * * 

Christopher Doyle, 

Attorney, Ethics and Legal Compliance. 

[FR Doc. 2024–23823 Filed 10–11–24; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2023–0587; FRL–11571– 

01–R8] 

Revisions to the Federal 

Implementation Plan for the Billings/ 

Laurel, Montana, Sulfur Dioxide Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to revise a 

Federal Implementation Plan (FIP) 

applicable to sulfur dioxide (SO2) 

emissions from several sources located 

in Billings and Laurel, Montana. 

Specifically, the EPA is proposing to 

revise a portion of the FIP promulgated 

by the EPA in 2008 (2008 Billings/ 

Laurel SO2 FIP) by removing a provision 

which contained an affirmative defense 

for exceedances of flare emission limits 

during malfunctions, startups, and 

shutdowns. The EPA is proposing this 

action pursuant to the Clean Air Act 

(CAA). 

DATES: Written comments must be 

received on or before December 16, 

2024. Public hearing: If anyone contacts 

us requesting a public hearing on or 

before October 30, 2024, we will hold a 

hearing. Additional information about 

the hearing, if requested, will be 

published in a subsequent Federal 

Register document. Contact Adam Clark 

at clark.adam@epa.gov, to request a 

hearing or to determine if a hearing will 

be held. 


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Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 82949 

1As stated in the proposed FIP, ‘‘Laurel is located 

within the Yellowstone Valley approximately 15 

miles southwest of Billings. . . . Although Laurel 

and Billings are 15 miles apart, the industries in 

Billings have some impact on the air quality in 

Laurel and the industry in Laurel has some impact 

on the air quality in Billings.’’ 79 FR 39260–39261, 

July 12, 2006. 

2EPA published this letter in the Federal Register 

on August 4, 1993 (58 FR 41430). 

3See also June 2, 2003, correction document (68 

FR 32799). 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2023–0587, to the Federal 

Rulemaking Portal: https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from https://

www.regulations.gov. The EPA may 

publish any comment received to its 

public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the web, 

cloud, or other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

Docket: All documents in the docket 

are listed in the https://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available electronically in 

https://www.regulations.gov. Please 

email or call the person listed in the FOR

FURTHER INFORMATION CONTACT section if 

you need to make alternative 

arrangements for access to the docket. 

FOR FURTHER INFORMATION CONTACT: 

Adam Clark, Air and Radiation 

Division, EPA, Region 8, Mail code 

8ARD–IO, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129, 

telephone number: (303) 312–7104, 

email address: clark.adam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

the EPA. 

Table of Contents 

I. What action is the EPA proposing? 

II. Background 

A. Billings/Laurel SO2 Area History 

B. Billings/Laurel SO2 FIP 

C. Affirmative Defense Provision Policy 

History 

III. The EPA’s Proposed Action 

IV. Environmental Justice Considerations 

V. Statutory and Executive Order Reviews 

I. What action is the EPA proposing? 

The EPA is proposing to revise the 

portion of the 2008 Billings/Laurel SO2

FIP found at 40 CFR 52.1392(i), titled 

‘‘Affirmative defense provisions for 

exceedances of flare emission limits 

during malfunctions, startups, and 

shutdowns.’’ This includes proposed 

withdrawal of all of the subsections 

under 40 CFR 52.1392(i), including 

§ 52.1392(i)(1) and subsections therein, 

and § 52.1392(i)(2) and (3). The 

rationale for this proposed action is 

described in the following sections. 

II. Background 

A. Billings/Laurel SO2 Area History 

On March 3, 1978 (43 FR 8962), the 

Laurel, Montana area was designated as 

nonattainment for the 1971 primary SO2

national ambient air quality standards 

(NAAQS). See 40 CFR 81.327. The 

nonattainment area consists of an area 

with a two-kilometer radius around the 

CHS Laurel Refinery. This designation 

was based on monitored and modeled 

violations of the NAAQS. The EPA 

reaffirmed this nonattainment 

designation on September 11, 1978 (43 

FR 40412). The 1990 CAA 

Amendments, enacted November 15, 

1990, again reaffirmed the 

nonattainment designation of Laurel 

with respect to the 1971 primary SO2

NAAQS. Since the Laurel 

nonattainment area had a fully 

approved CAA title I part D plan, the 

State was not required to submit a 

revised plan for the area under the 1990 

Amendments (see sections 191 and 192 

of the CAA). 

On March 3, 1978 (43 FR 8962), those 

areas in the State that were meeting the 

1971 SO2 NAAQS were designated as 

‘‘Better Than National Standards.’’ The 

Billings area was in the portion of the 

State that was designated as ‘‘Better 

Than National Standards.’’ 

The CAA requires States to submit to 

the EPA a plan, termed a State 

Implementation Plan (SIP), to assure 

that the NAAQS are attained and 

maintained. Air quality modeling 

completed in 1991 and 1993 for the 

Billings/Laurel area predicted that the 

SO2 NAAQS were not being attained, 

including outside of the existing 

nonattainment area and in Billings.1 As 

a result, the EPA (pursuant to sections 

110(a)(2)(H) and 110(k)(5) of the CAA) 

sent a letter to the Governor of Montana, 

dated March 4, 1993,2 finding the SIP 

was substantially inadequate to attain or 

maintain the NAAQS (known as a ‘‘SIP 

Call’’) and requested the State of 

Montana revise its previously approved 

SIP for the Billings/Laurel area. In the 

request letter, we declared that the SIP 

Call would become final agency action 

when we made a final determination 

regarding the State of Montana’s 

response to the SIP Call. In response, 

the State submitted revisions to the SIP 

on September 6, 1995, August 27, 1996, 

April 2, 1997, July 29, 1998, and May 

4, 2000. We made a final determination 

regarding the SIP Call when we partially 

and limitedly approved and partially 

and limitedly disapproved the Billings/ 

Laurel SO2 SIP revisions submitted by 

the State in response to the request 

letter (67 FR 22168, 22173, May 2, 

2002). On May 22, 2003 (68 FR 27908),3

we partially approved and partially 

disapproved provisions of the Billings/ 

Laurel SO2 SIP. Montana Sulfur and 

Chemical Company filed a petition for 

review challenging the EPA’s 2002 

partial SIP disapproval. That petition 

was held in abeyance pending the EPA’s 

promulgation of a FIP to remedy the 

disapproved portions of the Billings/ 

Laurel SO2 SIP. 

B. Billings/Laurel SO2 FIP 

On April 21, 2008, the EPA 

promulgated a FIP applicable to several 

sources located in Billings and Laurel, 

Montana, hereon referred to as the 

‘‘2008 Billings/Laurel SO2 FIP’’ (73 FR 

21418). The EPA promulgated the 2008 

Billings/Laurel SO2 FIP because of our 

previous partial and limited 

disapprovals of the Billings/Laurel SO2

SIP. The intended effect of this action 

was to assure attainment of the 1971 

SO2 NAAQS in the Billings/Laurel, 

Montana area. The 2008 Billings/Laurel 

SO2 FIP did not replace the SIP entirely, 

but instead replaced elements of, or 

filled gaps in, the disapproved portion 

of the SIP. Montana Sulfur and 

Chemical Company filed a petition for 

review challenging the EPA’s 2008 FIP, 

at which point the previous litigation 

challenging the 2002 SIP disapproval 

was reactivated. The court ultimately 

issued a single ruling affirming the 


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4See Montana Sulphur and Chemical Co. v. U.S. 

EPA, 666 F.3d 1174, (9th Cir. 2012). 

5SRU stands for sulfur recovery unit, and ATS 

stands for Ammonium Thiosulfate. 

6Memorandum to Regional Administrators, 

Region I–X; From: Kathleen M. Bennett, Assistant 

Administrator for Air, Noise and Radiation; Subject: 

Policy on Excess Emissions During Startup, 

Shutdown, Maintenance, and Malfunctions. 

September 28, 1982. 

7Memorandum to Regional Administrators, 

Regions I–X; From: Kathleen M. Bennett, Assistant 

Administrator for Air, Noise and Radiation; Subject: 

Policy on Excess Emissions During Startup, 

Shutdown, Maintenance, and Malfunctions. 

February 15, 1983. 

8Memorandum to Regional Administrators, 

Regions I–X; From: Steven A. Herman, Assistant 

Administrator for Enforcement and Compliance 

Assurance, and Bob Perciasepe, Assistant 

Administrator for Air and Radiation; Subject: Policy 

on Excess Emissions During Malfunctions, Startup, 

and Shutdown. September 20, 1999. 

9 Id. 

10Court decisions confirmed that this 

requirement for continuous compliance prohibits 

exemptions for excess emissions during SSM 

events. See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 

1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 

690 F.3d 1157, 1170 (10th Cir. 2012). 

EPA’s action on the SIP Call, 2002 SIP 

disapproval, and FIP.4

The 2008 Billings/Laurel SO2 FIP, 

which remains in place today, contains 

emission limits and compliance 

determining methods for four sources 

located in Billings and Laurel, Montana. 

Three of the sources are petroleum 

refineries: CHS Inc. Laurel Refinery, 

Phillips 66 Billings Refinery (including 

the Jupiter Sulfur facility), and 

ExxonMobil Billings Refinery (now the 

Par Montana Refinery). The fourth 

source is Montana Sulphur and 

Chemical Company, which provides 

sulfur recovery for the Par Montana 

Refinery. Among the major components 

of the 2008 Billings/Laurel SO2 FIP was 

the establishment of flare emission 

limits at all four sources (150 lbs SO2/ 

3-hour period at all but the Jupiter 

Sulfur flare, 75 lbs SO2/3-hour period 

shared limit for the Jupiter Sulfur flare 

and the Jupiter Sulfur SRU/ATS stack) 5

and monitoring methods to determine 

compliance with those limits. To 

determine flare emissions, the 2008 

Billings/Laurel SO2 FIP required 

concentration monitoring (which can 

consist of continuous monitoring, grab 

sampling, or integrated sampling) and 

continuous flow monitoring. The 2008 

Billings/Laurel SO2 FIP also included an 

affirmative defense to civil penalties for 

violations of the flare limits that occur 

during startup, shutdown, and 

malfunction (SSM) periods. 

These affirmative defense provisions 

for the flare limits, which the EPA 

finalized into the 2008 Billings/Laurel 

SO2 FIP at 40 CFR 52.1392(i), are the 

portions of the 2008 Billings/Laurel SO2

FIP we are proposing to remove from 

the 2008 Billings/Laurel SO2 FIP with 

this action. Below, we provide further 

detail on the history of affirmative 

defense provisions and the rationale for 

our removal of these provisions in this 

proposed action. 

C. Affirmative Defense Provision Policy 

History 

On June 12, 2015, the EPA finalized 

‘‘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,’’ hereafter 

referred to as the ‘‘2015 SSM SIP 

Action’’ (80 FR 33839). Prior to the 2015 

SSM SIP Action, which is discussed 

later in this section, the Agency had a 

longstanding interpretation of the CAA 

with respect to the treatment of excess 

emissions during periods of SSM in 

SIPs. This statutory interpretation had 

been expressed, reiterated, and 

elaborated upon in a series of guidance 

documents issued in 1982, 1983, and 

1999. 

In the 1982 SSM Guidance, the EPA 

recommended the exercise of 

enforcement discretion to address 

periods of excess emissions occurring 

during SSM events.6 Subsequently, in 

the 1983 SSM Guidance, the EPA 

expanded on this approach by 

recommending that a State could elect 

to adopt SIP provisions providing 

parameters for the exercise of 

enforcement discretion by the State’s 

personnel.7 In our 1999 SSM Guidance, 

the EPA interpreted that States could 

elect to create ‘‘affirmative defense’’ 

provisions applicable to SSM events in 

their SIPs.8 Also in the 1999 Guidance, 

the EPA established parameters that 

should be included as part of such an 

affirmative defense in order to ensure 

that it would be available only in certain 

narrow circumstances.9 In the 2008 

Billings/Laurel SO2 FIP, the EPA 

explained that we were following our 

national policy with respect to SSM 

periods as expressed in the 1999 SSM 

Guidance by including an affirmative 

defense in our 2008 Billings/Laurel SO2

FIP. 73 FR 21434, April 21, 2008. 

Specifically, we stated, ‘‘[t]o provide 

relief to the sources for truly 

unavoidable violations, while still 

maintaining appropriate incentives for 

compliance, we are providing an 

affirmative defense to penalties for 

violations of flare limits during 

malfunctions, startups, and shutdowns. 

The elements of the defense, which a 

source would have to prove in court or 

before an administrative judge, are 

enumerated in our 2008 final rule and 

are consistent with the elements 

described in our 1999 excess emissions 

memorandum.’’ Id. at 73 FR 21432. 

On February 22, 2013, the EPA 

proposed to take action on a petition for 

rulemaking that the Sierra Club filed 

with the EPA Administrator on June 30, 

2011 (78 FR 12460). In that action, the 

EPA proposed to grant the Petitioner’s 

claim with respect to affirmative 

defenses applicable to planned events 

such as startup and shutdown. This was 

a change from the EPA’s interpretation 

of the CAA in the 1999 SSM Guidance, 

in which the EPA had interpreted that 

States could elect to create such 

affirmative defense provisions for 

startup and shutdown events, so long as 

the provisions were narrowly drawn 

and consistent with the established 

criteria to assure that they meet CAA 

requirements. The EPA’s evaluation of 

the petition and the statutory basis for 

affirmative defense provisions initiated 

a review of the appropriateness of 

affirmative defense provisions 

applicable during startup and 

shutdown, which are ordinary modes of 

operation that are generally predictable 

and within the control of the source. As 

explained in more detail in the February 

22, 2013 proposal document, the EPA’s 

evaluation of the Sierra Club Petition in 

light of then-recent case law 10 caused 

the EPA to alter its view on the 

appropriateness of affirmative defenses 

applicable to planned events such as 

startup and shutdown. Specifically, the 

EPA stated that ‘‘because these events 

are modes of normal operation, the EPA 

believes that sources should be expected 

to comply with applicable emission 

limitations during such events.’’ (Id. at 

12480) 

The EPA distinguished between 

affirmative defense provisions for 

startup and shutdown and those for 

malfunctions, stating ‘‘the distinction 

that makes affirmative defenses 

appropriate for malfunctions is that by 

definition those events are unforeseen 

and could not have been avoided by the 

owner or operator of the source, and the 

owner or operator of the source will 

have taken steps to prevent the violation 

and to minimize the effects of the 

violation after it occurs.’’ Id. 

Subsequent to the EPA’s issuance of 

the February 22, 2013 proposal, on 

April 18, 2014, the U.S. Court of 

Appeals for the District of Columbia 

Circuit ruled that CAA sections 113 and 

304 preclude the EPA the authority to 

create affirmative defense provisions in 


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11See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 

2014). 12See ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls To Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown and Malfunction; Supplemental 

Proposal To Address Affirmative Defense 

Provisions in States Included in the Petition for 

Rulemaking and in Additional States.’’ 79 FR 

55920, September 17, 2014. 

13 Id. at 79 FR 55929. 

14The EPA established an 18-month deadline by 

which the affected States had to submit such SIP 

revisions. States were required to submit corrective 

revisions to their SIPs in response to the SIP call 

by November 22, 2016. 

15October 9, 2020 memorandum ‘‘Inclusion of 

Provisions Governing Periods of Startup, 

Shutdown, and Malfunctions in State 

Implementation Plans,’’ from Andrew R. Wheeler, 

Administrator. The 2020 Memorandum stated that 

it ‘‘did not alter in any way the determinations 

made in the 2015 SSM SIP Action that identified 

specific state SIP provisions that were substantially 

inadequate to meet the requirements of the Act.’’ 

Accordingly, the 2020 Memorandum had no direct 

impact on the SIP call issued in 2015. 

16September 30, 2021, memorandum 

‘‘Withdrawal of the October 9, 2020, Memorandum 

Addressing Startup, Shutdown, and Malfunctions 

in State Implementation Plans and Implementation 

of the Prior Policy,’’ from Janet McCabe, Deputy 

Administrator. 

17See Environ. Comm. Fl. Elec. Power v. EPA, 94 

F.4th 77, 115 (D.C. Cir. 2024). 

18See 40 CFR 52.1392(i)(1). 19See Environ. Comm. Fl. Elec. Power v. EPA, 94 

F.4th 77, 114–115 (D.C. Cir. 2024). 20See https://www.epa.gov/environmentaljustice/ 

learn-about-environmental-justice. 

the Agency’s own regulations imposing 

emission limits on sources, because 

such provisions purport to alter the 

jurisdiction of federal courts to assess 

liability and impose penalties for 

violations of those limits in private civil 

enforcement cases.11 In light of this 

decision, on September 17, 2014, the 

EPA issued a supplemental proposed 

rulemaking which outlined our updated 

policy that affirmative defense SIP 

provisions, even if they are narrowly 

tailored and applicable only to 

malfunctions, are not consistent with 

CAA requirements. Accordingly, the 

EPA proposed to grant the portion of 

Sierra Club’s petition with regard to 

affirmative defenses in the case of 

malfunctions that it had previously 

proposed to deny.12 In that 

supplemental proposal, the EPA stated 

that the reasoning of the court in the 

NRDC decision indicates that the States, 

like the EPA, have no authority in SIP 

provisions to alter the statutory 

jurisdiction of federal courts under CAA 

section 113 and 304 to assess penalties 

for violations of CAA requirements 

through affirmative defense provisions. 

We additionally noted that if States lack 

authority under the CAA to alter the 

jurisdiction of the federal courts through 

affirmative defense provisions in SIPs, 

then the EPA also lacks authority to 

approve any such provision in a SIP.13

On June 12, 2015, pursuant to CAA 

section 110(k)(5), the EPA finalized the 

2015 SSM SIP Action. The 2015 SSM 

SIP Action clarified, restated, and 

updated the EPA’s interpretation that 

SSM exemption and affirmative defense 

SIP provisions are inconsistent with 

CAA requirements. The 2015 SSM SIP 

Action found that certain SIP provisions 

in 36 States were substantially 

inadequate to meet CAA requirements 

and issued a SIP call to those States to 

submit SIP revisions to address the 

inadequacies.14

The EPA issued a Memorandum in 

October 2020 (2020 Memorandum), 

which stated that certain provisions 

governing SSM periods in SIPs, 

including affirmative defense 

provisions, could be viewed as 

consistent with CAA requirements.15

However, on September 30, 2021, the 

EPA’s Deputy Administrator withdrew 

the 2020 Memorandum and announced 

the EPA’s return to the policy 

articulated in the 2015 SSM SIP Action 

(2021 Memorandum).16 As articulated 

in the 2021 Memorandum, SIP 

provisions that contain exemptions or 

affirmative defense provisions are not 

consistent with CAA requirements and, 

therefore, generally are not approvable if 

contained in a SIP submission. 

On March 1, 2024, the D.C. Circuit 

Court of Appeals issued a decision in 

Environ. Comm. Fl. Elec. Power v. EPA, 

No. 15–1239. The case is a consolidated 

set of petitions for review of the 2015 

SSM SIP Action. The Court granted the 

petitions in part, vacating the SIP call 

with respect to SIP provisions that the 

EPA identified as automatic 

exemptions, director’s discretion 

provisions, and affirmative defenses that 

are functionally exemptions; and denied 

the petitions in part as to other 

provisions that the EPA identified as 

ambiguous provisions, overbroad 

enforcement discretion provisions, or 

affirmative defense provisions that 

would preclude or limit a court from 

imposing relief in the case of violations, 

which the Court also refers to as 

‘‘specific relief.’’ This is juxtaposed 

against the Court’s granting of the 

petition as to affirmative defenses that 

are functionally exemptions because 

they ‘‘create an exemption from the 

normal emission rule.’’ 17 The EPA finds 

that the affirmative defense provision in 

the 2008 Billings/Laurel SO2 FIP to be 

‘‘specific relief’’ as interpreted by the 

Court, as the provision specifically 

states that an owner or operator ‘‘may 

assert an affirmative defense to a claim 

for civil penalties for exceedances of 

such limits during periods of 

malfunction, startup, or shutdown,’’ and 

‘‘to establish the affirmative defense and 

to be relieved of a civil penalty in any 

action to enforce such a limit, the owner 

or operator of the facility must meet the 

notification requirements of paragraph 

(i)(2) of this section in a timely manner 

and prove by a preponderance of 

evidence . . .’’ 18 The EPA has assessed 

the impact of the decision with respect 

to the removal of the specific affirmative 

defense provisions at issue in the 

Billings/Laurel SO2 FIP. We have 

concluded that the previously stated 

reasons for the proposed removal of 

these provisions, as articulated in the 

2015 SSM SIP Action and 2021 

Memorandum, are consistent with the 

recent D.C. Circuit decision. The Court 

upheld the EPA’s 2015 SSM SIP Action 

with regard to affirmative defenses 

against specific relief, finding that 

because CAA 304(a) and 113(b) 

authorize citizens and the EPA to seek 

injunctive relief and monetary penalties 

against sources that violate a SIP’s 

emission rules, such an affirmative 

defense would ‘‘block that aspect of the 

Act’s enforcement regime.’’ 19

To maintain consistency with our 

SSM policy regarding affirmative 

defenses against specific relief, and with 

the CAA’s prohibition against such 

affirmative defenses, we are proposing 

to find that the affirmative defense 

provisions currently promulgated in the 

2008 Billings/Laurel SO2 FIP at 40 CFR 

52.1392(i) are substantially inadequate 

to meet CAA requirements. Therefore, 

we are proposing to revise the 2008 

Billings/Laurel SO2 FIP by removing 

these provisions. 

III. The EPA’s Proposed Action 

The EPA is proposing to revise the 

2008 Billings/Laurel SO2 FIP by 

removing § 52.1392(i) and all of the 

provisions therein, including 

paragraphs § 52.1392 (i)(1)–(3). The EPA 

is proposing this action in line with our 

policy regarding affirmative defense 

provisions against specific relief, as 

described in our 2015 SSM SIP Action 

and affirmed by the D.C. Circuit. 

IV. Environmental Justice 

Considerations 

The EPA defines environmental 

justice (EJ) as ‘‘the fair treatment and 

meaningful involvement of all people 

regardless of race, color, national origin, 

or income with respect to the 

development, implementation, and 

enforcement of environmental laws, 

regulations, and policies.’’ 20 The EPA 

further defines the term ‘‘fair treatment’’ 

to mean that ‘‘no group of people should 

bear a disproportionate burden of 


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82952 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 

21 Id. 

22The EJSCREEN tool is available at https://

www.epa.gov/ejscreen. 

23See https://www.census.gov/programs-surveys/ 

geography/about/glossary.html. 

24 In addition, EJSCREEN relies on the five-year 

block group estimates from the U.S. Census 

American Community Survey. The advantage of 

using five-year over single-year estimates is 

increased statistical reliability of the data (i.e., 

lower sampling error), particularly for small 

geographic areas and population groups. For more 

information, see https://www.census.gov/content/ 

dam/Census/library/publications/2020/acs/acs_

general_handbook_2020.pdf. 

25For additional information on environmental 

indicators and proximity scores in EJSCREEN, see 

‘‘EJSCREEN Environmental Justice Mapping and 

Screening Tool: EJSCREEN Technical 

Documentation,’’ chapter 3 and appendix C 

(September 2019) at https://www.epa.gov/sites/ 

default/files/2021-04/documents/ejscreen_

technical_document.pdf. 

26For a place at the 80th percentile nationwide, 

that means 20 percent of the U.S. population has 

a higher value. The EPA identified the 80th 

percentile filter as an initial starting point for 

interpreting EJScreen results. The use of an initial 

filter promotes consistency for the EPA’s programs 

and regions when interpreting screening results. 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 21 Recognizing the importance 

of these considerations to local 

communities, the EPA conducted an 

environmental justice screening analysis 

around the location of the facilities 

associated with this action to evaluate 

environmental and demographic 

indicators for the areas impacted by this 

proposed action. However, the EPA is 

providing the information associated 

with this analysis for informational 

purposes only. The information 

provided herein is not a basis of this 

proposed action. 

The EPA conducted the screening 

analyses using EJScreen, an EJ mapping 

and screening tool that provides the 

EPA with a nationally consistent dataset 

and approach for combining various 

environmental and demographic 

indicators.22 The EJScreen tool presents 

these indicators at a census block group 

(CBG) level or a larger user-specified 

‘‘buffer’’ area that covers multiple 

CBGs.23 An individual CBG is a cluster 

of contiguous blocks within the same 

census tract and generally contains 

between 600 and 3,000 people. EJScreen 

is not a tool for performing in-depth risk 

analysis, but is instead a screening tool 

that provides an initial representation of 

indicators related to EJ and is subject to 

uncertainty in some underlying data 

(e.g., some environmental indicators are 

based on monitoring data which are not 

uniformly available; others are based on 

self-reported data).24 For informational 

purposes, we have summarized 

EJScreen data within larger ‘‘buffer’’ 

areas covering multiple block groups 

and representing the average resident 

within the buffer areas surrounding the 

facilities. EJScreen environmental 

indicators help screen for locations 

where residents may experience a 

higher overall pollution burden than 

would be expected for a block group 

with the same total population in the 

U.S. These indicators of overall 

pollution burden include estimates of 

ambient particulate matter (PM2.5) and 

ozone concentration, a score for traffic 

proximity and volume, percentage of 

pre-1960 housing units (lead paint 

indicator), and scores for proximity to 

Superfund sites, risk management plan 

(RMP) sites, and hazardous waste 

facilities.25 EJScreen also provides 

information on demographic indicators, 

including percent of low-income, 

communities of color, linguistic 

isolation, and less than high school 

education. 

The EPA prepared EJScreen reports 

covering buffer areas of approximately 

five kilometers around the four facilities 

subject to the 2008 Billings/Laurel SO2

FIP. From those reports, no facilities 

showed EJ indices greater than the 80th 

national percentiles.26 The full, detailed 

EJScreen reports are provided in the 

docket for this rulemaking. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is exempt from review 

under Executive Order 12866, as 

amended by Executive Order 14094, as 

it is not a rule of general applicability. 

This action specifically applies to 4 

facilities in the State of Montana. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act (PRA), because it revises the 

reporting requirements for 4 facilities in 

the State of Montana. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities as no small entities are subject 

to the requirements of this rule. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. This 

action imposes no enforceable duty on 

any State, local, or Tribal governments 

or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175, because this proposed rule 

would not apply on any Indian 

reservation land or in any other area 

where the EPA or an Indian Tribe has 

demonstrated that the Tribe has 

jurisdiction, and it will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997). The EPA interprets Executive 

Order 13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

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 merely removes a provision 

from the 2008 Billings/Laurel SO2 FIP 

that is inconsistent with the 

requirements of the CAA. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 


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Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 82953 

27EJSCREEN is an environmental justice mapping 

and screening tool that provides the EPA with a 

nationally consistent dataset and approach for 

combining environmental and demographic 

indicators; available at https://www.epa.gov/ 

ejscreen/what-ejscreen. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations and Executive 

Order 14096: Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

The EPA believes that it is not 

practicable to assess whether the human 

health or environmental conditions that 

exist prior to this action result in 

disproportionate and adverse effects on 

communities with environmental justice 

concerns. While the EPA has identified 

the sources that would be impacted by 

the finalization of this proposed action, 

the EPA cannot quantify the baseline 

conditions and impacts the affirmative 

defense provisions have had on these 

sources, nor can we project potential 

emissions impacts from these sources as 

a result of this action. However, the EPA 

finds that this proposed action is 

expected to have a neutral to positive 

impact on the air quality of the affected 

area. 

The EPA performed a screening 

analysis using the EJScreen tool 27 to 

evaluate environmental and 

demographic indicators for the areas 

impacted by this proposed action. The 

results of this assessment are in the 

docket for this action. The EPA is 

providing this information for public 

information purposes, and not as a basis 

of our proposed action. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency proposes to amend 40 CFR part 

52 as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart BB—Montana 

§ 52.1392 [Amended] 

■ 2. In § 52.1392, remove and reserve 

paragraph (i). 

[FR Doc. 2024–23568 Filed 10–11–24; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2023–0473; FRL–12257– 

01–R8] 

Air Plan Approval; Montana; Missoula, 

Montana Oxygenated Fuels Program 

Removal, Carbon Monoxide, Limited 

Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the Montana 

Department of Environmental Quality 

(MDEQ or ‘‘the State’’), on January 30, 

2024, requesting to change the status of 

gasoline requirements (the ‘‘oxygenated 

fuels’’ or ‘‘oxyfuels’’ program’’) in the 

Missoula, Montana, Carbon Monoxide 

(CO) limited maintenance plan (LMP) 

area from an active control measure to 

a contingency measure. The SIP revision 

contains a non-interference 

demonstration under the Clean Air Act 

(CAA), which concludes that converting 

the oxygenated gasoline program from a 

control measure to a contingency 

measure in the Missoula CO LMP would 

not interfere with attainment or 

maintenance of the CO National 

Ambient Air Quality Standards 

(NAAQS). The EPA is proposing to 

approve Montana’s SIP submittal 

pursuant to CAA. 

DATES: Written comments must be 

received on or before November 14, 

2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2023–0473, to the Federal 

Rulemaking Portal: https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from https://

www.regulations.gov. The EPA may 

publish any comment received to its 

public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the web, 

cloud, or other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

Docket: All documents in the docket 

are listed in the https://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available electronically in 

https://www.regulations.gov. Please 

email or call the person listed in the FOR

FURTHER INFORMATION CONTACT section if 

you need to make alternative 

arrangements for access to the docket. 

FOR FURTHER INFORMATION CONTACT: 

Joseph Stein, Air and Radiation 

Division, EPA, Region 8, Mailcode 

8ARD–IO, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129, 

telephone number: (303) 312–7078, 

email address: stein.joseph@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

the EPA. 

I. Background 

The EPA is proposing to approve a 

SIP revision submitted by Montana on 

January 30, 2024, requesting to change 

the status of the oxyfuels program in the 

Missoula CO LMP from an active 

control measure to a contingency 

measure. To support the request, 

Montana’s January 30, 2024 SIP revision 

contains technical support materials to 

demonstrate that the removal of the 

rules as a control measure will not 

interfere with attainment or 

maintenance of the CO NAAQS or with 


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