Federal Register / Vol. 89, No. 204 / Tuesday, October 22, 2024 / Rules and Regulations 84291 

EPA-APPROVED DELAWARE SOURCE-SPECIFIC REQUIREMENTS

Name of source Permit No. State effective 

date EPA approval date Additional explanation 

*******

Calpine Mid-Atlantic Generation, LLC— 

Christiana Energy Center.

AQM–003/00317 

(Renewal 5).

12/19/2023 October 22, 2024 

[INSERT FEDERAL REGISTER CITATION].

Approved via Docket EPA–R03–OAR– 

2023–0301, as an element of Delaware’s August 8, 2022, Regional 

Haze Plan from 2018–2028 and 

March 7, 2024, supplement. 

Calpine Mid-Atlantic Generation, LLC— 

Delaware City Energy Center.

AQM–003/00005 

(Renewal 5).

12/19/2023 October 22, 2024 

[INSERT FEDERAL REGISTER CITATION].

Approved via Docket EPA–R03–OAR– 

2023–0301, as an element of Delaware’s August 8, 2022, Regional 

Haze Plan from 2018–2028 and 

March 7, 2024, supplement. 

Calpine Mid-Atlantic Generation, LLC— 

West Energy Center.

AQM–003/00006 

(Renewal 5).

12/19/2023 October 22, 2024 

[INSERT FEDERAL REGISTER CITATION].

Approved via Docket EPA–R03–OAR– 

2023–0301, as an element of Delaware’s August 8, 2022, Regional 

Haze Plan from 2018–2028 and 

March 7, 2024, supplement. 

* * * * * (e) * * * 

Name of non-regulatory 

SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation 

*******

Regional Haze Plan from 

2018–2028.

State-wide ........................................................... 8/8/2022 October 22, 2024 [INSERT Federal Register CITATION].

[FR Doc. 2024–24196 Filed 10–21–24; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2023–0406; FRL–10652–02– 

OAR] 

RIN 2060–AV97 

Removal of Affirmative Defense 

Provisions From the National Emission 

Standards for Hazardous Air Pollutants 

for the Oil and Natural Gas Production 

Facility and Natural Gas Transmission 

and Storage Facility Source Categories 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finalizing 

amendments to the National Emission 

Standards for Hazardous Air Pollutants 

for the oil and gas industry issued under 

the Clean Air Act (CAA). Specifically, 

the EPA is finalizing removal of the 

affirmative defense provisions in the 

National Emission Standards for 

Hazardous Air Pollutants for both the 

Oil and Natural Gas Production source 

category and the Natural Gas 

Transmission and Storage source 

category. 

DATES: This final rule is effective 

October 22, 2024. 

ADDRESSES: The EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2023–0406. All 

documents in the docket are listed on 

the https://www.regulations.gov/ 

website. Although listed, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only as pdf versions that can 

only be accessed on the EPA computers 

in the docket office reading room. 

Certain databases and physical items 

cannot be downloaded from the docket 

but may be requested by contacting the 

docket office at 202–566–1744. The 

docket office has up to 10 business days 

to respond to these requests. With the 

exception of such material, publicly 

available docket materials are available 

electronically at https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Matthew Witosky, Sector Policies and 

Programs Division (E143–05), Office of 

Air Quality Planning and Standards, 

U.S. Environmental Protection Agency, 

109 T.W. Alexander Drive, P.O. Box 

12055, Research Triangle Park, North 

Carolina, 27711; telephone number: 

(919) 541–2865; email address: 

witosky.matthew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Organization of this document. The 

information in this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. Judicial and Administrative Review 

II. Final Rule Summary 

III. Rationale for the Final Rule 

IV. Response to Comments 

V. Summary of Cost, Environmental, and 

Economic Impacts 

A. What are the affected sources? 

B. What are the air quality impacts? 

C. What are the cost impacts? 

D. What are the economic impacts? 

E. What are the benefits? 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

B. Paperwork Reduction Act (PRA) 


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84292 Federal Register / Vol. 89, No. 204 / Tuesday, October 22, 2024 / Rules and Regulations 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

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 

K. Congressional Review Act (CRA) 

I. General Information 

A. Does this action apply to me? 

Categories and entities potentially 

regulated by this action are shown in 

table 1 of this preamble. 

TABLE 1—NESHAP AND INDUSTRIAL SOURCE CATEGORIES AFFECTED BY THIS FINAL ACTION

Source category NAICS1 NAICS code 

Industry ........................................................................................................ 211111 Crude Petroleum and Natural Gas Extraction. 

211112 Natural Gas Liquid Extraction. 

221210 Natural Gas Distribution. 

486110 Pipeline Distribution of Crude Oil. 

486210 Pipeline Transportation of Natural Gas. 

Federal Government ................................................................................... .................... Not affected. 

State/Local/Tribal Government .................................................................... .................... Not affected. 

1 North American Industry Classification System (NAICS). 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. To determine 

whether your facility would be 

regulated by this action, you should 

examine the applicability criteria in the 

regulations. If you have any questions 

regarding the applicability of this action 

to a particular entity, contact the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, at Docket ID No. EPA–HQ– 

OAR–2023–0406 located at https://

www.regulations.gov/, an electronic 

copy of this final rulemaking is 

available on the internet at https://

www.epa.gov/controlling-air-pollutionoil-and-natural-gas-operations. 

Following signature by the EPA 

Administrator, the EPA will post a copy 

of this final rulemaking at this same 

website. Following publication in the 

Federal Register, the EPA will post the 

Federal Register version of the final 

rulemaking. 

C. Judicial and Administrative Review 

Under Clean Air Act (CAA) section 

307(b)(1), judicial review of this final 

rulemaking is available only by filing a 

petition for review in the United States 

Court of Appeals for the District of 

Columbia Circuit by December 23, 2024. 

Under CAA section 307(b)(2), the 

requirements established by this final 

rulemaking may not be challenged 

separately in any civil or criminal 

proceedings brought by the EPA to 

enforce the requirements. Section 

307(d)(7)(B) of the CAA further provides 

that ‘‘[o]nly an objection to a rule or 

procedure which was raised with 

reasonable specificity during the period 

for public comment (including any 

public hearing) may be raised during 

judicial review.’’ This section also 

provides a mechanism for the EPA to 

convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to the EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment, (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. Environmental 

Protection Agency, Room 3000, WJC 

West Building, 1200 Pennsylvania Ave. 

NW, Washington, DC 20460, with a 

copy to both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania. 

II. Final Rule Summary 

In a proposal published December 1, 

2023 (88 FR 83889), the EPA proposed 

to remove the provisions of an 

affirmative defense to civil penalties in 

the National Emission Standards for 

Hazardous Air Pollutants for the Oil and 

Natural Gas Production source category 

and the Natural Gas Transmission and 

Storage source category, 40 CFR 

63.762(d) and 63.1272(d) in 40 CFR part 

63, subparts HH and HHH, respectively. 

The EPA is finalizing removal of these 

affirmative defense provisions as 

proposed. 

III. Rationale for the Final Rule 

In 1998, the EPA promulgated 

National Emission Standards for 

Hazardous Air Pollutants for the Oil and 

Natural Gas Production Facility and 

Natural Gas Transmission and Storage 

Facility Source Categories, 40 CFR part 

63, subparts HH and HHH (64 FR 32610; 

June 17, 1999) (‘‘Oil and Gas 

NESHAP’’). In 2012, the EPA amended 

the Oil and Gas NESHAP (77 FR 49490; 

August 16, 2012). The 2012 

amendments included provisions 

allowing owners and operators to assert 

an affirmative defense to civil penalties 

for violations caused by malfunctions. 

See 40 CFR 63.762 and 63.1672, Id. at 

49569 and 49585. A malfunction is a 

sudden, infrequent, and not reasonably 

preventable failure of air pollution 

control and monitoring equipment, 

process equipment, or a process to 

operate in a normal or usual manner. 

See 40 CFR 63.2. As defined in 40 CFR 

part 63, subparts HH and HHH, 

‘‘affirmative defense’’ means, ‘‘in the 

context of an enforcement proceeding, a 

response or defense put forward by a 

defendant, regarding which the 

defendant has the burden of proof, and 

the merits of which are independently 

and objectively evaluated in a judicial 

or administrative proceeding.’’ See 40 

CFR 63.761 and 63.1271. The EPA 

established an affirmative defense to 

civil penalties in 40 CFR part 63, 

subparts HH and HHH in an effort to 

create a system that incorporates some 

flexibility, recognizing that there is a 


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1The D.C. Circuit Court’s reasoning in NRDC 

focuses on civil judicial actions. The D.C. Circuit 

Court noted that ‘‘EPA’s ability to determine 

whether penalties should be assessed for CAA 

violations extends only to administrative penalties, 

not to civil penalties imposed by a court.’’ Id. 

2EPA notes that in 2012, concurrent with the 

review of 40 CFR part 63, subparts HH and HHH, 

EPA promulgated New Source Performance 

Standards for Crude Oil and Natural Gas Facilities, 

40 CFR part 60, subpart OOOO (‘‘NSPS OOOO’’), 

which also included an affirmative defense. See 77 

FR 49557. In a subsequent rulemaking following the 

NRDC decision, the EPA removed the affirmative 

defense provision from NSPS OOOO. 79 FR 79018 

(Dec. 31, 2014). 

3Although the NRDC case does not address the 

EPA’s authority to establish an affirmative defense 

to penalties that are available in administrative 

enforcement actions, we are not including such an 

affirmative defense in this rule because for the same 

reasons explained above, such an affirmative 

defense is not necessary. Moreover, assessment of 

penalties for violations caused by malfunctions in 

administrative proceedings and judicial 

proceedings should be consistent. Cf. CAA section 

113(e) (requiring both the Administrator and the 

court to take specified criteria into account when 

assessing penalties). 

4The case involved challenges to various aspects 

of an EPA regulation establishing new source 

performance standards for certain stationary source 

categories, including ‘‘equal’’ standards during 

normal operations and periods of startup, shutdown 

and malfunction. Id. The D.C. Circuit Court 

remanded the rule record to the EPA on the ‘‘equal 

standard,’’ noting that ‘‘variant provisions appear 

necessary to preserve the reasonableness of the 

standards as a whole and that the record does not 

support the ‘never to be exceeded’ standard 

currently in force.’’ Id. 

tension, inherent in many types of air 

regulation, to ensure adequate 

compliance while simultaneously 

recognizing that despite the most 

diligent of efforts, emission standards 

may be violated under circumstances 

entirely beyond the control of the source 

(77 FR 49508). Under these affirmative 

defense provisions, if a source could 

demonstrate in a judicial or 

administrative proceeding that it had 

met the requirements of the affirmative 

defense in the regulation, civil penalties 

would not be assessed. 

In 2014, the United States Court of 

Appeals for the District of Columbia 

Circuit (the D.C. Circuit Court) vacated 

the affirmative defense in one of the 

EPA’s CAA section 112 regulations. 

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

2014) (vacating affirmative defense 

provisions in the CAA section 112 rule 

establishing emission standards for 

portland cement kilns) (NRDC). Like the 

affirmative defense provisions in the Oil 

and Gas NESHAP, the affirmative 

defense at issue in NRDC similarly 

provided that civil penalties may be 

assessed only if violators ‘‘fail to meet 

[their] burden of proving all of the 

requirements in the affirmative 

defense.’’ 749 F.3d at 1062; see also 78 

FR 10039, § 63.1344. The D.C. Circuit 

Court found that the EPA lacked 

authority to establish an affirmative 

defense for penalties in private civil 

suits brought under CAA section 304(a) 

and held that the authority to determine 

civil penalty amounts in such cases lies 

exclusively with the courts, not the 

EPA. 749 F.3d at 1063. Specifically, the 

D.C. Circuit Court found: ‘‘As the 

language of the statute makes clear, the 

courts determine, on a case-by-case 

basis, whether civil penalties are 

‘appropriate.’ ’’ Id. (‘‘[U]nder this 

statute, deciding whether penalties are 

‘appropriate’ in a given private civil suit 

is a job for the courts, not EPA.’’).1

In light of the NRDC decision, the 

EPA proposed and is now finalizing 

removal of the affirmative defense 

provisions from the Oil and Gas 

NESHAP which, like the rule at issue in 

the NRDC decision, is also a CAA 

section 112 rule. These provisions 

imply legal authority that the D.C. 

Circuit Court has stated that the EPA 

does not have.2 As the EPA explained in 

the proposed rule, if a source is unable 

to comply with emissions standards as 

a result of a malfunction, the EPA may 

use its case-by-case enforcement 

discretion to provide flexibility, as 

appropriate (88 FR 83889, 83891). 

Further, as the D.C. Circuit Court 

recognized, in a citizen enforcement 

action brought under CAA section 

304(a), the courts have the discretion to 

consider any defense raised and 

determine whether penalties are 

appropriate. NRDC, 749 F.3d at 1064 

(arguments that a violation was caused 

by unavoidable technology failure can 

be made to the courts in future civil 

cases when the issue arises). The same 

is true for the presiding officer in EPA 

administrative enforcement actions.3

IV. Response to Comments 

EPA received one comment on the 

proposal. Below is a summary of the 

comment and the EPA response thereto. 

Comment: The commenter requests 

that the EPA retain the affirmative 

defense provisions in the Oil and Gas 

NESHAP. The commenter first argues 

that the decision in NRDC v. EPA, 749 

F.3d 1055 (D.C. Cir. 2014), which the 

EPA has identified as the basis of its 

proposed rule, does not compel the EPA 

to remove the affirmative defense at 

issue because the affirmative defense 

provision at issue in NRDC provided 

defense against civil penalties after 

liability has been established; the 

commenter claims that, in contrast, the 

affirmative defense in subparts HH and 

HHH provides for defense against 

liability, not civil penalties, and is 

therefore unaffected by the NRDC 

decision. The commenter argues that, to 

the extent the EPA is asserting that there 

is no distinction between an affirmative 

defense to liability and an affirmative 

defense to penalties at issue in NRDC, 

such a position is ‘‘ill-considered’’ and 

‘‘wholly unsupported.’’ 

The commenter next argues that, even 

if the EPA were to remove the 

affirmative defense in these two 

NESHAP from judicial proceedings, the 

EPA should retain it in administrative 

enforcement matters. In support, the 

commenter first notes that the NRDC 

decision addressed only judicial 

proceedings and therefore does not 

compel the EPA to remove affirmative 

defense from administrative 

enforcement matters. Next, the 

commenter disputes the EPA’s assertion 

that ‘‘such an affirmative defense is not 

necessary,’’ claiming that the defense 

‘‘provides an essential measure of 

flexibility to sources facing real 

challenges with malfunctions in their 

operations that are beyond their 

control.’’ The commenter expresses 

concern that ‘‘without the specificity 

provided by the regulation, the ability to 

raise these real-world practical 

challenges is left to the unspecified 

‘discretion’ of EPA enforcement officials 

or the presiding officer (an EPA 

employee) in an administrative 

proceeding.’’ The commenter claims the 

EPA recognized such an approach as 

lacking a formalized approach and 

regulatory clarity, citing the proposal 

preamble describing the EPA’s position 

at the time it established the affirmative 

defense at issue (88 FR 83891). The 

commenter further claims that both the 

EPA and the courts have ‘‘long 

understood that it is fundamentally 

unfair to penalize a source for 

unavoidable emissions,’’ citing Essex 

Chem. Corp. v. Ruckelshaus, 486 F.2d 

427, 433 (D.C. Cir. 1973).4 The 

commenter argues that ‘‘it would be 

unjust to penalize a source for emissions 

that were beyond its control as this 

neither serves the purposes of 

punishment nor deterrence.’’ The 

commenter claims that the proposed 

rule ‘‘provides no explanation as to 

why, after decades of finding an 

affirmative defense for emergencyrelated emissions to be necessary, 

justice no longer requires it.’’ 

The commenter then notes the EPA’s 

explanation in the proposed rule that 

the ‘‘assessment of penalties for 

violations caused by malfunctions in 

administrative proceedings and judicial 

proceedings should be consistent’’ but 

asks that the EPA reconsider. The 

commenter claims that the EPA’s 

reasoning, which refers to CAA section 


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5See 749 F.3d at 1062, which identifies 40 CFR 

63.1344 at 78 FR 10039 as the affirmative defense 

at issue in NRDC. 40 CFR 63.1344, as promulgated 

in that 2013 rule, provided that ‘‘[i]n response to 

an action to enforce the standards . . . you may 

assert an affirmative defense to a claim for civil 

penalties for violations of such standards that are 

caused by malfunction, as defined at 40 CFR 63.2. 

Appropriate penalties may be assessed if you fail 

to meet your burden of proving all of the 

requirements in the affirmative defense. The 

affirmative defense shall not be available for claims 

for injunctive relief.’’ [Emphasis added]. 

6The commenter also claims that the EPA is 

incorrect to the extent it is asserting that there is 

no distinction between affirmative defense to 

liability and affirmative defense to penalties. The 

EPA did not make such assertion. The proposed 

rule does not address an affirmative defense to 

liability as that is not the regulatory provision at 

issue in this rulemaking. 

113(e) specifying ‘‘penalty assessment 

criteria’’ for both the EPA and the courts 

to consider, as appropriate (88 FR 

83891, footnote 3), is ‘‘wrong and not 

sound policy.’’ In support, the 

commenter reiterates its argument that 

‘‘[f]oremost, as noted above, the 

affirmative defenses at issue go to 

questions of liability, not civil penalties. 

Thus, whether the penalty criteria in 

CAA section 113(e) are the same or not 

is entirely beside the point in deciding 

whether an affirmative defense to 

liability should be retained.’’ The 

commenter further argues that ‘‘even if 

the affirmative defense here goes to the 

question of penalties, there is no 

principle of ‘consistency’ between 

judicial and administrative 

proceedings.’’ The commenter cites 

CAA section 113(d) (‘‘Administrative 

Assessment of Civile Penalties’’), 

specifically section 113(d)(2)(B) which 

‘‘affords the EPA entirely separate 

authority to ‘compromise, modify, or 

remit, with or without conditions, any 

administrative penalty,’ ’’ as evidence 

that ‘‘Congress did not envision, let 

alone require, that judicial and 

administrative proceedings ‘should be 

consistent.’ ’’ The comment faults the 

proposed rule for ‘‘[giving] no 

consideration to the discretion provided 

under section 113(d), in particular the 

authority 113(d)(2)(B).’’ The Commenter 

argues that ‘‘by contrast, civil judicial 

proceedings are bound by the common 

rules of civil judicial procedure.’’ 

Lastly, the commenter argues that 

there ‘‘is [not] any EPA precedent to 

consider only factors listed in CAA 

section 113(e) when determining 

administrative penalties, as that would 

contradict EPA’s current administrative 

penalty policies’’ [Emphasis added]. 

The commenter cites to several EPA 

decisions and policies that the 

commenter claims did not rely on CAA 

section 113(e) criteria in determining 

administrative penalties. According to 

the commenter, ‘‘EPA has used policies 

governing administrative penalties for 

decades without any consideration of 

CAA section 113(e) and it continues to 

do so today.’’ The commenter argues 

that ‘‘EPA’s interpretation of how 

section 113(e) limits its own authority 

appears to be arbitrarily selective in this 

instance’’ because ‘‘the Proposed Rule 

does not consider these contradictory 

practices and gives no indication that 

EPA will now abandon these policies 

and guidance documents in 

administrative proceedings.’’ 

Response: For the reasons explained 

below, none of the commenter’s 

arguments justify retaining the 

affirmative defense provisions in the Oil 

and Gas NESHAP. The commenter’s 

main argument is that the affirmative 

defense in the Oil and Gas NESHAP 

provides for a defense against liability 

and, as such, is unaffected by the NRDC 

decision that held unlawful an 

affirmative defense to penalties in 

private civil suits. However, the 

commenter’s interpretation of the 

affirmative defense in the Oil and Gas 

NESHAP is clearly incorrect as it 

contradicts the clear language of the 

affirmative defense in these NESHAP at 

40 CFR 63.762(d) and 63.1272(d), which 

specifically state that ‘‘you may assert 

an affirmative defense to a claim for 

civil penalties for violations of such 

standards that are caused by 

malfunction as defined at 40 CFR 63.2. 

Appropriate penalties may be assessed 

if you fail to meet your burden of 

proving all of the requirements in the 

affirmative defense.’’ [Emphasis added]. 

Furthermore, this is the same wording 

as the affirmative defense in NRDC,5

and the commenter does not explain 

how it interprets the same wording 

differently. We therefore find this 

argument to be totally without merit.6

The EPA is also unpersuaded by the 

commenter’s argument that the EPA 

should retain the affirmative defense in 

the Oil and Gas NESHAP in 

administrative cases even if not in 

judicial proceedings. The commenter 

claims that the EPA’s view that 

‘‘assessment of penalties for violations 

caused by malfunctions in 

administrative proceedings and judicial 

proceedings should be consistent’’ is 

based on CAA section 113(e) and 

therefore flawed. The commenter argues 

that CAA section 113(e), which requires 

both the Administrator and the courts to 

take specified criteria into consideration 

when assessing penalties, is ‘‘entirely 

beside the point in deciding whether to 

retain the affirmative defense to 

liability’’ that the commenter claims is 

in Oil and Gas NESHAP. However, as 

discussed above, the affirmative defense 

in the Oil and Gas NESHAP goes to 

penalty assessment; accordingly, the 

commenter’s argument that CAA section 

113(e) is not relevant is incorrect. 

The EPA also disagrees with the 

commenter’s argument that retaining the 

affirmative defense in administrative 

cases is necessary in light of CAA 

section 113(d), which the commenter 

claims leaves ‘‘the ability to raise these 

real-world practical challenges . . . to 

the unspecified ‘discretion’ of EPA 

enforcement officials or the presiding 

officer (an EPA employee) in an 

administrative proceeding.’’ But 

Congress already rejected this view; in 

enacting CAA section 113(d), Congress 

was clearly confident with entrusting 

the EPA with broad authority and 

discretion in assessing penalty. Further, 

as the EPA explained in the proposal 

preamble, ‘‘if a source is unable to 

comply with emissions standards as a 

result of a malfunction, the EPA may 

use its case-by-case enforcement 

discretion to provide flexibility, as 

appropriate.’’ 88 FR 83891. In any event, 

the commenter appears to be expressing 

a hypothetical concern, as the 

commenter has not claimed or provided 

any information indicating that the EPA 

prohibited or otherwise limited one’s 

ability to raise ‘‘real-world concerns’’ in 

the penalty assessment stage during an 

administrative proceeding. 

Lastly, contrary to the commenter’s 

assertion, the EPA does not claim that 

only factors listed in CAA section 113(e) 

may be considered when determining 

administrative penalties, nor is there 

inconsistency between the EPA’s 

interpretation of CAA section 113(e) (as 

explained in this rulemaking) and the 

EPA’s long-standing policies and 

practices in penalty assessment. CAA 

section 113(e) makes clear that, in 

determining the amount of penalty, the 

EPA and the courts are not limited to 

consider only the factors enumerated in 

that section; they shall also consider 

‘‘such other factors as justice may 

require.’’ Accordingly, to the extent that 

the EPA has focused on other factors, as 

the commenter claims, the EPA’s action 

is in accordance with the CAA. For the 

same reason, the EPA rejects the 

commenter’s accusation that the EPA 

has been determining administrative 

penalties ‘‘without any consideration of 

CAA section 113(e);’’ the commenter 

also offers no evidence that the EPA 

declined to consider the factors in CAA 

section 113(e). 

For the reasons stated above, the EPA 

finds that the commenter has not 

justified retaining the affirmative 

defense in the Oil and Gas NESHAP. 


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V. Summary of Cost, Environmental, 

and Economic Impacts 

A. What are the affected sources? 

Sources subject to subparts HH and 

HHH under 40 CFR part 63, as amended 

in 1990, section 112. 

B. What are the air quality impacts? 

There are no air quality impacts 

associated with this action. The 

affirmative defense provisions did not 

affect the stringency of the standards in 

40 CFR part 63, subparts HH or HHH. 

The removal of the provisions does not 

have a material impact on the obligation 

for sources to comply with current 

existing standards, or the ability of 

Federal or state agencies to enforce 

standards. 

C. What are the cost impacts? 

There are no cost impacts associated 

with this action. The affirmative defense 

provisions did not affect the stringency 

of the standards in the Oil and Gas 

NESHAP. The removal of the provisions 

does not have a material impact on the 

obligation for sources to comply with 

current existing standards, or the ability 

of Federal or state agencies to enforce 

standards. The EPA estimated a small 

administrative burden to report 

deviations from standards as a result of 

malfunctions that included the option 

for an owner or operator to offer an 

affirmative defense. The removal of the 

affirmative defense provisions does not 

affect that burden because sources will 

still be required to report malfunctions 

that result in a failure to meet the 

standards. Since the option to invoke an 

affirmative defense was voluntary, there 

may be a negligible cost savings for 

reporting malfunctions by removing 

these provisions. 

D. What are the economic impacts? 

There are no economic impacts 

associated with this action. The 

affirmative defense provisions did not 

affect the stringency of the standards in 

the Oil and Gas NESHAP. The removal 

of the provisions does not have a 

material impact on the obligation for 

sources to comply with current existing 

standards, or the ability of Federal or 

state agencies to enforce standards. The 

EPA estimated a small administrative 

burden to report deviations from 

standards as a result of malfunctions 

that included the option for an owner or 

operator to offer an affirmative defense. 

The removal of the affirmative defense 

provisions does not affect that burden 

because sources will still be required to 

report malfunctions that could have 

resulted in a failure to meet the 

standards. Since the option to invoke an 

affirmative defense was voluntary, there 

may be a negligible cost savings for 

reporting malfunctions by removing 

these provisions. 

E. What are the benefits? 

There are no environmental benefits 

associated with this action. The 

affirmative defense provisions did not 

affect the stringency of the standards in 

the Oil and Gas NESHAP. The removal 

of the provisions does not have a 

material impact on the obligation for 

sources to comply with current existing 

standards, or the ability of Federal or 

state agencies to enforce standards. 

VI. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is not a significant 

regulatory action as defined in 

Executive Order 12866, as amended by 

Executive Order 14094, and was 

therefore not subject to a requirement 

for review under Executive Order 

12866. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA. OMB has previously approved the 

information collection activities 

contained in the existing regulations 

and has assigned OMB control number 

2060–0417. The removal of provisions 

for affirmative defense does not change 

any mandatory recordkeeping, 

reporting, or other activity previously 

established under prior final rules. 

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. There are no economic 

impacts associated with this action. The 

affirmative defense provisions did not 

affect the stringency of the standards in 

40 CFR part 63, subparts HH or HHH. 

The removal of the provisions does not 

have a material impact on the obligation 

for sources to comply with current 

existing standards, or the ability of 

Federal or State agencies to enforce 

standards. We have therefore concluded 

that this action will have no net 

regulatory burden for all directly 

regulated small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

Tribal governments or the private sector. 

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. It will not have substantial 

direct effects on Tribal governments, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes, as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

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. Therefore, this action 

is not subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

Since this action does not concern 

human health, EPA’s Policy on 

Children’s Health also does not apply. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 


ddrumheller on DSK120RN23PROD with RULES1
84296 Federal Register / Vol. 89, No. 204 / Tuesday, October 22, 2024 / Rules and Regulations 

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 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) 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 communities 

with environmental justice concerns. 

The EPA believes that this action does 

not concern human health or 

environmental conditions and therefore 

cannot be evaluated with respect to 

potentially disproportionate and 

adverse effects on communities with 

environmental justice concerns. This 

action does not change the underlying 

standards that have an impact on 

human health and the environment. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 63 

Environmental protection, Air 

pollution control, Hazardous 

substances, Reporting and 

recordkeeping requirements. 

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency (EPA) amends Title 40, chapter 

I, of the Code of Federal Regulations 

(CFR) as follows: 

PART 63—NATIONAL EMISSION 

STANDARDS FOR HAZARDOUS AIR 

POLLUTANTS FOR SOURCE 

CATEGORIES 

■ 1. The authority citation for part 63 

continues to read as follows: 

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

Subpart HH—National Emission 

Standards for Hazardous Air Pollutants 

From Oil and Natural Gas Production 

Facilities 

■ 2. Section 63.760 is amended by 

adding paragraph (i) to read as follows: 

§ 63.760 Applicability and designation of 

affected source. 

* * * * * 

(i) Emissions standards in this subpart 

apply at all times. 

§ 63.761 [Amended] 

■ 3. Section 63.761 is amended by 

removing the definition ‘‘Affirmative 

defense’’. 

§ 63.762 [Removed and Reserved] 

■ 4. Section 63.762 is removed and 

reserved. 

Subpart HHH—National Emission 

Standards for Hazardous Air Pollutants 

From Natural Gas Transmission and 

Storage Facilities 

■ 5. Section 63.1270 is amended by 

adding paragraph (g) to read as follows. 

§ 63.1270 Applicability and designation of 

affected source. 

* * * * * 

(g) Emissions standards in this 

subpart apply at all times. 

§ 63.1271 [Amended] 

■ 6. Section 63.1271 is amended by 

removing the definition ‘‘Affirmative 

defense’’. 

§ 63.1272 [Removed and Reserved] 

■ 7. Section 63.1272 is removed and 

reserved. 

[FR Doc. 2024–24288 Filed 10–21–24; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 221206–0261] 

RIN 0648–BN32 

Magnuson-Stevens Act Provisions; 

Fisheries Off West Coast States; 

Pacific Coast Groundfish Fishery; 

2023–2024 Biennial Specifications and 

Management Measures; Inseason 

Adjustments 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; inseason adjustments 

to biennial groundfish management 

measures. 

SUMMARY: This final rule announces 

routine inseason adjustments to 

management measures in commercial 

groundfish fisheries. This action is 

intended to allow fishing vessels to 

access more abundant groundfish stocks 

while protecting rebuilding stocks. 

DATES: This final rule is effective 

October 22, 2024. 

ADDRESSES: Electronic Access: This rule 

is accessible via the internet at the 

Office of the Federal Register website at 

https://www.federalregister.gov. 

Background information and documents 

are available at the Pacific Fishery 

Management Council’s website at 

https://www.pcouncil.org/. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Sean Matson, phone: 206–526–6187 or 

email: sean.matson@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The Pacific Coast Groundfish Fishery 

Management Plan (PCGFMP) and its 

implementing regulations at title 50 in 

the Code of Federal Regulations (CFR), 

part 660, subparts C through G, regulate 

fishing for over 90 species of groundfish 

seaward of Washington, Oregon, and 

California. The Pacific Fishery 

Management Council (Council) 

develops groundfish harvest 

specifications and management 

measures for 2-year periods (biennia). 

NMFS published the final rule to 

implement harvest specifications and 

management measures for the 2023– 

2024 biennium for most species 

managed under the PCGFMP on 

December 16, 2022 (87 FR 77007). The 

management measures set at the start of 

the biennial harvest specifications cycle 

help the various sectors of the fishery 

attain, but not exceed, the catch limits 

for each stock. The Council, in 

coordination with Pacific Coast Treaty 

Indian Tribes and the States of 

Washington, Oregon, and California, 

recommends adjustments to the 

management measures during the 

fishing year to achieve this goal. 

At its September 2024 meeting, the 

Council recommended an assortment of 

modifications that included corrections 

and adjustments, to commercial fixed 

gear trip limits and incidental catch 

limits, for limited entry (LE) and open 

access (OA) fisheries for the remainder 

of 2024. Stocks and complexes with 

recommended changes included the 

other fish complex south of 40°10′ N 

lat., minor nearshore rockfish south of 

40°10′ N lat., and cabezon in California. 

Potential changes were analyzed and 

ultimately recommended after updated 

information regarding projected catch 

and attainment became available, as 

well as requests from industry. 

Pacific Coast groundfish fisheries are 

managed using harvest specifications or 

limits (e.g., overfishing limits, 


ddrumheller on DSK120RN23PROD with RULES1