```

[Federal Register Volume 78, Number 237 (Tuesday, December 10, 2013)]
[Proposed Rules]
[Pages 74057-74063]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29450]

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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.

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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   May 18, 2010.....  September 1, 2010.
                                 for Excess Emissions Due to
                                 Malfunctions, Startups, and
                                 Shutdown.
----------------------------------------------------------------------------------------------------------------

[[Page 74058]]

    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.
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    \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.
    \2\ CCBC 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.
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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.

[[Page 74059]]

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.
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    \3\ See, 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).
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    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,

[[Page 74060]]

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.
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    \4\ See 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.
    \5\ See, 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).
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    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.
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    \6\ See 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.
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    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\
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    \7\ See, 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).
    \8\ See EPA's February 22, 2013 Proposed SIP Calls (78 FR 12460, 
12480).
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    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.
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    \9\ See EPA's February 22, 2013 Proposed SIP Calls (78 FR 12460, 
12478).
    \10\ EPA 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.
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    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

[[Page 74061]]

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\
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    \11\ See page 3 of the Attachment to EPA's 1999 Policy on SSM 
events.
    \12\ See 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.
    \13\ See, e.g. the 24-hour standard for PM2.5 of 65 
[micro]g/m\3\ in CCAQR Section 11.2, which is inconsistent with the 
24-hour standard set on October 17, 2006 of 35 [micro]g/m\3\ (71 FR 
61144).
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    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

[[Page 74062]]

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).
---------------------------------------------------------------------------

    \14\ Small 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.
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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

[[Page 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
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