19042 Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Proposed Rules 

the safety zone and shall travel at the 

minimum speed necessary to maintain a 

safe course. Vessels operating within the 

safety zone shall not come within 25 

yards of a tall ship unless authorized by 

the cognizant Captain of the Port, their 

designated representative, or the onscene official patrol. 

(3) When a tall ship approaches any 

vessel that is moored or anchored, the 

stationary vessel must stay moored or 

anchored while it remains within the 

tall ship’s safety zone unless ordered by 

or given permission from the cognizant 

Captain of the Port, their designated 

representative, or the on-scene official 

patrol to do otherwise. 

(d) Effective period. This section is 

effective from 12:01 a.m. on June 24, 

2022, through 12:01 a.m. on August 29, 

2022. 

(e) Navigation rules. The navigation 

rules shall apply at all times within a 

tall ships safety zone. 

Dated: March 23, 2022. 

M.J. Johnston, 

Rear Admiral, U.S. Coast Guard, Commander, 

Ninth Coast Guard District. 

[FR Doc. 2022–06559 Filed 3–31–22; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 70 and 71 

[EPA–HQ–OAR–2016–0186; FRL–8961–01– 

OAR] 

RIN 2060–AV39 

Removal of Title V Emergency 

Affirmative Defense Provisions From 

State Operating Permit Programs and 

the Federal Operating Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is re-proposing a 

document, first proposed in 2016, 

which would remove the emergency 

affirmative defense provisions found in 

the regulations for state and federal 

operating permit programs under the 

Clean Air Act (CAA). The purpose of 

these provisions has been to establish an 

affirmative defense that sources can 

assert in civil enforcement cases when 

noncompliance with certain emission 

limitations in operating permits occurs 

because of qualifying ‘‘emergency’’ 

circumstances. These provisions, which 

have never been required elements of 

state operating permit programs, are 

being removed because they are 

inconsistent with the enforcement 

structure of the CAA and court 

decisions from the U.S. Court of 

Appeals for the D.C. Circuit. The 

removal of these provisions is consistent 

with other EPA actions involving 

affirmative defenses and would 

harmonize the enforcement and 

implementation of emission limitations 

across different CAA programs. 

DATES: Comments must be received on 

or before May 16, 2022. 

Public hearing: If anyone contacts 

EPA requesting a public hearing by 

April 6, 2022, the EPA will hold a 

virtual public hearing. See 

SUPPLEMENTARY INFORMATION for 

information on requesting and 

registering for a public hearing. 

ADDRESSES: Comments: You may send 

comments, identified by Docket ID No. 

EPA–HQ–OAR–2016–0186, by any of 

the following methods: 

• Federal eRulemaking Portal: https:// 

www.regulations.gov/ (our preferred 

method). Follow the online instructions 

for submitting comments. 

• Email: a-and-r-docket@epa.gov. 

Include Docket ID No. EPA–HQ–OAR– 

2016–0186 in the subject line of the 

message. 

• Fax: (202) 566–9744. Attention 

Docket ID No. EPA–HQ–OAR–2016– 

0186. 

Instructions: All submissions received 

must include the Docket ID No. EPA– 

HQ–OAR–2016–0186 for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are open to the public by 

appointment only to reduce the risk of 

transmitting COVID–19. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries 

and couriers may be received by 

scheduled appointment only. For 

further information on EPA Docket 

Center services and the current status, 

please visit us online at https://

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: For 

information about this proposed rule, 

contact Corey Sugerik, Air Quality 

Policy Division, Office of Air Quality 

Planning and Standards (C504–05), 

Environmental Protection Agency, 

Research Triangle Park, NC; telephone 

number: 919–541–3223; email 

address:sugerik.corey@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this document 

is organized as follows: 

I. General Information 

II. Background 

III. Proposed Action 

IV. Implementation 

V. Environmental Justice Considerations 

VI. Statutory and Executive Order Reviews 

VII. Statutory Authority 

I. General Information 

A. Entities Potentially Affected by This 

Action 

Entities potentially affected by this 

proposed rulemaking include federal, 

state, local and tribal air pollution 

control agencies that administer title V 

operating permit programs, and owners 

and operators of emissions sources in all 

industry groups who hold or apply for 

title V operating permits. 

B. Obtaining a Copy of This Document 

and Other Related Information 

The EPA has established a docket for 

this rulemaking under Docket ID No. 

EPA–HQ–OAR–2016–0186. All 

documents in the dockets are listed in 

https://www.regulations.gov/. 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 in hard copy. Publicly 

available docket materials are available 

either in the docket for this action, 

Docket ID No. EPA–HQ–OAR–2016– 

0186, or electronically at https://

www.regulations.gov/. 

In addition to being available in the 

docket, an electronic copy of this 

Federal Register document will be 

posted at https://www.epa.gov/title-voperating-permits/current-regulationsand-regulatory-actions. 

C. Preparing Comments for the EPA 

Instructions. Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2016–0186, at https://

www.regulations.gov (our preferred 

method), or the other methods 

identified in the ADDRESSES section. 

Once submitted, comments cannot be 

edited or removed from the docket. The 

EPA may publish any comment received 

to its public docket. Do not submit to 

EPA’s docket at https://

www.regulations.gov any information 

you consider to be CBI or other 

information whose disclosure is 

restricted by statute. This type of 

information should be submitted by 

mail as discussed below. 


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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, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

Due to public health concerns related 

to COVID–19, the EPA Docket Center 

and Reading Room are open to the 

public by appointment only. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries or 

couriers will be received by scheduled 

appointment only. For further 

information and updates on EPA Docket 

Center services, please visit us online at 

https://www.epa.gov/dockets. 

The EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our Federal partners 

so that the Agency can respond rapidly 

as conditions change regarding COVID– 

19. 

Submitting CBI. Do not submit 

information containing CBI to the EPA 

through https://www.regulations.gov/. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information on any digital 

storage media that you mail to the EPA, 

mark the outside of the digital storage 

media as CBI and then identify 

electronically within the digital storage 

media the specific information that is 

claimed as CBI. In addition to one 

complete version of the comments that 

includes information claimed as CBI, 

you must submit a copy of the 

comments that does not contain the 

information claimed as CBI directly to 

the public docket through the 

procedures outlined in Instructions. If 

you submit any digital storage media 

that does not contain CBI, mark the 

outside of the digital storage media 

clearly that it does not contain CBI. 

Information not marked as CBI will be 

included in the public docket and the 

EPA’s electronic public docket without 

prior notice. Information marked as CBI 

will not be disclosed except in 

accordance with procedures set forth in 

40 Code of Federal Regulations (CFR) 

part 2. Our preferred method to receive 

CBI is for it to be transmitted 

electronically using email attachments, 

File Transfer Protocol (FTP), or other 

online file sharing services (e.g., 

Dropbox, OneDrive, Google Drive). 

Electronic submissions must be 

transmitted directly to the OAQPS CBI 

Office using the email address, 

oaqpscbi@epa.gov, and should include 

clear CBI markings as described later. If 

assistance is needed with submitting 

large electronic files that exceed the file 

size limit for email attachments, and if 

you do not have your own file sharing 

service, please email oaqpscbi@epa.gov 

to request a file transfer link. If sending 

CBI information through the postal 

service, please send it to the following 

address: OAQPS Document Control 

Officer (C404–02), OAQPS, U.S. 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, Attention Docket ID No. EPA– 

HQ–OAR–2016–0186. The mailed CBI 

material should be double wrapped and 

clearly marked. Any CBI markings 

should not show through the outer 

envelope. 

D. Participation in Virtual Public 

Hearing 

Please note that because of the current 

CDC recommendations, as well as state 

and local orders for social distancing to 

limit the spread of COVID–19, the EPA 

cannot hold in-person public meetings 

at this time. 

To request a virtual public hearing, 

contact Ms. Pamela Long at (919) 541– 

0641 or by email at long.pam@epa.gov. 

If requested, the virtual hearing will be 

held on April 18, 2022. The hearing will 

convene at 9:00 a.m. Eastern Time (ET) 

and will conclude at 3:00 p.m. ET. The 

EPA may close a session 15 minutes 

after the last pre-registered speaker has 

testified if there are no additional 

speakers. The EPA will announce 

further details at https://www.epa.gov/ 

title-v-operating-permits/currentregulations-and-regulatory-actions. 

Upon publication of this document in 

the Federal Register, the EPA will begin 

pre-registering speakers for the hearing, 

if a hearing is requested. To register to 

speak at the virtual hearing, please use 

the online registration form available at 

https://www.epa.gov/title-v-operatingpermits/current-regulations-andregulatory-actions or contact Ms. 

Pamela Long at (919) 541–0641 or by 

email at long.pam@epa.gov. The last day 

to pre-register to speak at the hearing 

will be April 13, 2022. Prior to the 

hearing, the EPA will post a general 

agenda that will list pre-registered 

speakers in approximate order at: 

https://www.epa.gov/title-v-operatingpermits/current-regulations-andregulatory-actions. 

The EPA will make every effort to 

follow the schedule as closely as 

possible on the day of the hearing; 

however, please plan for the hearings to 

run either ahead of schedule or behind 

schedule. 

Each commenter will have five 

minutes to provide oral testimony. The 

EPA encourages commenters to provide 

the EPA with a copy of their oral 

testimony electronically (via email) by 

emailing it to long.pam@epa.gov. The 

EPA also recommends submitting the 

text of your oral testimony as written 

comments to the rulemaking docket. 

The EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral testimony 

and supporting information presented at 

the public hearing. 

Please note that any updates made to 

any aspect of the hearing will be posted 

online at https://www.epa.gov/title-voperating-permits/current-regulationsand-regulatory-actions. While the EPA 

expects the hearing to go forward as set 

forth above, please monitor our website 

or contact Ms. Pamela Long at (919) 

541–0641 or by email at long.pam@

epa.gov to determine if there are any 

updates. The EPA does not intend to 

publish a document in the Federal 

Register announcing updates. 

If you require the services of a 

translator or special accommodations 

such as audio description, please preregister for the hearing with Ms. Pamela 

Long and describe your needs by April 

8, 2022. The EPA may not be able to 

arrange accommodations without 

advanced notice. 

II. Background 

The EPA has promulgated permitting 

regulations for the operation of major 

and certain other sources of air 

pollutants under title V of the CAA. 

These regulations, codified in 40 CFR 

parts 70 and 71, contain the 

requirements for state operating permit 

programs and the federal operating 

permit program, respectively. These 

regulations currently contain identical 

provisions describing an affirmative 

defense that sources may be able to 

assert in enforcement actions brought 

for noncompliance with technologybased emission limitations caused by 

specific emergency circumstances. 

These ‘‘emergency’’ affirmative defense 

provisions are located at 40 CFR 70.6(g) 

and 71.6(g). 

In 2016, the EPA proposed a rule to 

remove these affirmative defense 

provisions from the title V regulations. 


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1 749 F.3d 1055 (D.C. Cir. 2014). 

2See Memorandum, Withdrawal of the October 9, 

2020, Memorandum Addressing Startup, 

Shutdown, and Malfunctions in State 

Implementation Plans and Implementation of the 

Prior Policy, 3–4 (September 30, 2021), available at 

https://www.epa.gov/system/files/documents/2021- 

09/oar-21-000-6324.pdf (September 2021 SSM SIP 

Memo). 

3E.g., 85 FR 71490 (November 9, 2020) (proposed 

rule removing affirmative defense from the 

NESHAP for polyvinyl chloride and copolymers 

production); 81 FR 40955 (June 23, 2016) (final rule 

removing affirmative defense from the NSPS and 

emission guidelines for commercial and 

institutional solid waste incineration units); see 

also 81 FR 38649 n.21 (June 14, 2016) (discussion 

of other NSPS and NESHAP rules in 2016 

Proposal). 

4A copy of the entry on the Regulatory Agenda 

is available at https://www.reginfo.gov/public/do/ 

eAgendaViewRule?pubId=201804&RIN=2060-AS96. 

See also https://www.regulations.gov/docket/EPAHQ-OAR-2016-0186/unified-agenda (indicating that 

the proposed rule was withdrawn on February 23, 

2018). 

5Memorandum, Inclusion of Provisions 

Governing Periods of Startup, Shutdown, and 

Malfunctions in State Implementation Plans, 6 

(October 9, 2020), available at https://www.epa.gov/ 

system/files/documents/2021-09/2020-ssm-in-sipsguidance-memo.pdf. In 2020, EPA also took action 

relating to an SSM-related affirmative defense in a 

SIP for Texas, withdrawing a SSM ‘‘SIP call’’ in part 

because the SIP-based affirmative defense was 

deemed to not be inconsistent with the CAA. See 

85 FR 7232 (February 7, 2020); see also 85 FR 

23,700 (April 28, 2020) (SIP call withdrawal 

relating to North Carolina) and 85 FR 73,218 

(November 17, 2020) (SIP call withdrawal relating 

to Iowa). Petitions for review of these withdrawal 

actions were filed in the United States Court of 

Appeals for the D.C. Circuit. See Sierra Club v. EPA, 

No. 20–1115. 

6September 2021 SSM SIP Memo, supra note 2. 

This memorandum also announced an intent to 

revisit, among other things, the 2020 action 

withdrawing the SSM affirmative defense-related 

SIP call for Texas. Id. at 5. On December 17, 2021, 

the United States Court of Appeals for the D.C. 

Circuit granted the EPA’s request for a voluntary 

remand of that 2020 Texas SIP call withdrawal 

action, as well as the similar SIP call withdrawal 

actions relating to North Carolina and Iowa, in light 

of EPA’s stated intent to reconsider those actions. 

Sierra Club v. EPA, No. 20–1115. 

7See September 2021 SSM SIP Memo. The EPA’s 

interpretation with respect to affirmative defenses 

in regulations under CAA sections 111 or 112 has 

not changed since the 2016 Proposal. See supra 

note 3 and accompanying text. 

8Comments received on the 2016 Proposal are 

contained in the same docket as the current 

proposal: Docket ID No. EPA–HQ–OAR–2016–0186. 

81 FR 38645 (June 14, 2016), also 

available online at: https://

www.govinfo.gov/content/pkg/FR-2016- 

06-14/pdf/2016-14104.pdf (the 2016 

Proposal). The 2016 Proposal contains a 

detailed discussion of the background 

for this proposal, as well as the purpose, 

basis, rationale, and legal justification 

for this proposal. The EPA directs 

readers to the 2016 Proposal for further 

information. In summary, the EPA based 

the 2016 Proposal on the interpretation 

that the enforcement structure of the 

CAA, embodied in sections 113 and 

304, precludes affirmative defense 

provisions that would operate to limit a 

court’s authority or discretion to 

determine the appropriate remedy in an 

enforcement action. 81 FR 38650. This 

interpretation is informed by the 2014 

NRDC v. EPA decision from the U.S. 

Court of Appeals for the D.C. Circuit.1

The EPA believes that the reasoning and 

logic of that decision extend to 

regulations concerning operating permit 

programs under title V. This view aligns 

the EPA’s position on affirmative 

defenses in title V with positions taken 

in other CAA program areas, including 

EPA policy relating to the treatment of 

startup, shutdown, and malfunction 

(SSM) periods in state implementation 

plans (SIPs). (The EPA’s policy with 

respect to SIPs is discussed in an action 

taken in 2015, see 80 FR 33839 (June 12, 

2015) (the 2015 SSM SIP Policy), and in 

the Agency’s September 30, 2021, 

memorandum reinstating the 2015 SSM 

SIP Policy.2) This title V interpretation 

also aligns with EPA’s position on 

affirmative defenses in New Source 

Performance Standards (NSPS) under 

CAA section 111 and National Emission 

Standards for Hazardous Air Pollutants 

(NESHAP) under CAA section 112.3

The EPA did not finalize the 2016 

Proposal. Instead, in a notation 

accompanying the Spring 2018 Unified 

Agenda of Federal Regulatory and 

Deregulatory Actions, the EPA stated: 

‘‘The EPA is withdrawing this action via 

the reg agenda because the agency does 

not plan to move forward with this 

rulemaking due to other pending 

priorities.’’ 4

Although the EPA did not move 

forward at that time with the proposal 

to remove the emergency affirmative 

defense provisions from the Title V 

regulations, the EPA continued to 

evaluate SSM provisions, including 

affirmative defenses, in SIPs. In October 

2020, the EPA issued a guidance 

memorandum that, among other things, 

expressly superseded a portion of the 

EPA’s interpretation of affirmative 

defenses presented in the 2015 SSM SIP 

Policy.5 However, on September 30, 

2021, the EPA issued a guidance 

memorandum that withdrew the 

October 2020 memorandum in its 

entirety and reinstated the legal and 

policy positions expressed in the 2015 

SSM SIP Policy in their entirety.6 Thus, 

the EPA’s current interpretation of 

affirmative defenses in the context of 

SIPs is the interpretation set out in the 

2015 SSM SIP Policy. As noted in a 

preceding paragraph, this interpretation 

in the context of SIPs is similar to the 

interpretation expressed in the 2016 

Proposal for the title V rules. 

III. Proposed Action 

In this action, the EPA is again 

proposing to remove the title V 

emergency affirmative defense 

provisions, 40 CFR 70.6(g) and 71.6(g). 

These provisions are inconsistent with 

the EPA’s interpretation of the CAA’s 

enforcement structure and court 

decisions from the U.S. Court of 

Appeals for the D.C. Circuit—primarily 

the 2014 NRDC v. EPA decision. In 

summary, the EPA interprets the 

enforcement structure of the CAA, 

embodied in sections 113 and 304, to 

preclude affirmative defense provisions 

that would operate to limit a court’s 

authority or discretion to determine the 

appropriate remedy in an enforcement 

action. The title V affirmative defense 

provisions the EPA proposes to remove, 

40 CFR 70.6(g) and 71.6(g), set forth just 

such limitations and, consequently, are 

inconsistent with the rationale of NRDC 

and the enforcement structure of the 

CAA. The Agency’s view that these title 

V affirmative defense provisions are 

inconsistent with the CAA and D.C. 

Circuit precedent is consistent with the 

EPA’s current interpretation of 

affirmative defenses in the context of 

other CAA programs, including SIPs 

and regulations under CAA sections 111 

and 112.7

Except as modified or updated herein, 

the EPA is re-proposing the 2016 

Proposal. The EPA previously received 

comments on the 2016 Proposal, 

including the legal interpretation upon 

which that former proposal—and the 

current proposal—are based. The EPA 

will consider all comments received on 

the 2016 Proposal as the Agency moves 

forward with the current rulemaking. 

Accordingly, commenters need not 

submit duplicate comments on the 

current proposal.8 However, the EPA 

welcomes comments providing 

additional information not previously 

submitted to the Agency. 

IV. Implementation 

The nature and focus of the proposed 

action are to remove the affirmative 

defense provisions from the EPA’s 

regulations at 40 CFR 70.6(g) and 

71.6(g). The EPA is not proposing any 

specific finding with respect to 

individual state programs or state-issued 

title V permits that may contain similar 

provisions. However, if the EPA 

finalizes this rule as proposed and 

removes the affirmative defense 

provisions at 40 CFR 70.6 and 71.6, the 

Agency expects that some state, local, 

and tribal permitting authorities will 

need to remove similar provisions from 

their EPA-approved part 70 program 

regulations and submit program 


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revisions to the EPA. The EPA also 

expects that these permitting authorities 

will need to remove such provisions 

from individual title V permits. This 

process will proceed consistent with the 

existing regulations concerning program 

and permit revisions. See, e.g., 40 CFR 

70.4(a), 70.4(i), 70.7. The EPA’s 

expectations regarding this process are 

discussed in the 2016 Proposal. 

V. Environmental Justice 

Considerations 

The Agency proposes to remove 

affirmative defense provisions from the 

EPA’s operating permit program 

regulations. If the rule is finalized, it 

may also be necessary for state, local 

and tribal permitting authorities to 

remove similar affirmative defense 

provisions from program regulations 

and from individual title V operating 

permits. None of these changes would 

alter the obligations of sources to 

comply with the underlying emission 

limits and other standards contained 

within title V operating permits. 

Based on these considerations, the 

EPA expects that, if this action becomes 

final as proposed, the effects on 

minority populations, low-income 

populations and/or indigenous peoples 

would not be disproportionately high 

and adverse. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. OMB has previously approved the 

information collection activities 

contained in the existing regulations 

and has assigned OMB control numbers 

2060–0243 (for part 70 state operating 

permit programs) and 2060–0336 (for 

part 71 federal operating permit 

program). In this action, the EPA is 

proposing to remove certain provisions 

from the EPA’s regulations, which, if 

finalized, could result in the removal of 

similar provisions from state, local, and 

tribal operating permit programs and 

individual permits. Consequently, states 

could eventually be required to submit 

program revisions to the EPA outlining 

any necessary changes to their 

regulations and their plans to remove 

provisions from individual permits. 

However, this action does not involve 

any requests for information, 

recordkeeping or reporting 

requirements, or other requirements that 

would constitute an information 

collection under the PRA. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action would not 

have a significant economic impact on 

a substantial number of small entities 

under the RFA. This action would not 

impose any requirements on small 

entities. Entities potentially affected 

directly by this proposal include state, 

local, and tribal governments, and none 

of these governments would qualify as 

a small entity. Other types of small 

entities, including stationary sources of 

air pollution, would not be directly 

subjected to the requirements of this 

action. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action would not contain an 

unfunded mandate of $100 million or 

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

1531–1538, and would not significantly 

or uniquely affect small governments. 

The action would impose 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 would 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 has tribal implications. 

However, it would neither impose 

substantial direct compliance costs on 

federally recognized tribal governments, 

nor preempt tribal law. One tribal 

government (the Southern Ute Indian 

Tribe) currently administers an 

approved part 70 operating permit 

program, and one tribal government (the 

Navajo Nation) currently administers a 

part 71 operating permit program 

pursuant to a delegation agreement with 

the EPA. These tribal governments may 

be required to take actions if this rule 

is finalized, including program revisions 

(for part 70 programs) and eventual 

permit revisions (for both part 70 and 

delegated part 71 programs), but these 

actions will not require substantial 

compliance costs. The EPA previously 

consulted with tribal officials when 

developing the 2016 Proposal and is 

planning to offer a similar consultation 

for the current proposal. The EPA also 

solicits comment from affected tribal 

governments on the implications of this 

rulemaking. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the 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 does not concern an 

environmental health risk or safety risk. 

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 (NTTA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this action 

would not have disproportionately high 

and adverse human health or 

environmental effects on minority 

populations, low-income populations 

and/or indigenous peoples, as specified 

in Executive Order 12898 (59 FR 7629, 

February 16, 1994). The documentation 

for this decision is contained in section 

V of this action preamble titled, 

‘‘Environmental Justice 

Considerations’’. 

VII. Statutory Authority 

The statutory authority for this action 

is provided in CAA sections 502(b) and 

502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), 

which direct the Administrator of the 

EPA to promulgate regulations 

establishing state operating permit 

programs and give the Administrator the 

authority to establish a federal operating 

permit program. Additionally, the 

Administrator determines that this 

proposed action is subject to the 

provisions of CAA section 307(d), 

which establish procedural 

requirements specific to rulemaking 

under the CAA. CAA section 


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307(d)(1)(V) provides that the 

provisions of CAA section 307(d) apply 

to ‘‘such other actions as the 

Administrator may determine.’’ 42 

U.S.C. 7607(d)(1)(V). 

List of Subjects 

40 CFR Part 70 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

40 CFR Part 71 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Reporting and 

recordkeeping requirements. 

Michael Regan, 

Administrator. 

For the reasons stated in the 

preamble, the EPA proposes to amend 

title 40 CFR parts 70 and 71 as follows: 

PART 70—STATE OPERATING PERMIT 

PROGRAMS 

■ 1. The authority citation for part 70 

continues to read as follows: 

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

§ 70.6 [Amended] 

■ 2. In § 70.6, remove and reserve 

paragraph (g). 

PART 71—FEDERAL OPERATING 

PERMIT PROGRAMS 

■ 3. The authority citation for part 71 

continues to read as follows: 

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

§ 71.6 [Amended] 

■ 4. In § 71.6, remove and reserve 

paragraph (g). 

[FR Doc. 2022–06907 Filed 3–31–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2015–0174; FRL–7253.1–01– 

OW] 

RIN 2040–AG21 

Restoring Protective Human Health 

Criteria in Washington 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) has determined that 

Washington’s human health criteria 

(HHC) are not protective of 

Washington’s designated uses and are 

not based on sound scientific rationale 

and, accordingly, is proposing to restore 

protective HHC for Washington’s 

waters. EPA partially approved and 

partially disapproved Washington’s 

HHC in November 2016, and 

simultaneously promulgated federal 

HHC based on sound scientific 

rationale. In May 2019, EPA reversed its 

November 2016 disapproval and 

approved Washington’s HHC, and in 

June 2020 withdrew the 2016 HHC that 

EPA promulgated for Washington. 

Based on the best scientific information 

and analyses currently available, and 

consideration of these past decisions, 

EPA has concluded that Washington’s 

existing HHC are not based on sound 

scientific rationale and are therefore not 

protective of the applicable designated 

uses in Washington. EPA is therefore 

proposing to reinstate the protective and 

science-based federal HHC that EPA 

withdrew in June 2020 to protect 

Washington’s waters, including waters 

where tribes hold treaty-reserved rights 

to fish. 

DATES: Comments must be received on 

or before May 31, 2022. Public Hearing: 

EPA will hold two public hearings 

during the public comment period. 

Please refer to the SUPPLEMENTARY

INFORMATION section for additional 

information on the public hearings. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OW–2015–0174, by any of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Standards and Health Protection 

Division Docket, Mail Code 28221T, 

1200 Pennsylvania Avenue NW, 

Washington, DC 20460. 

• Hand Delivery or Courier (by 

scheduled appointment only): EPA 

Docket Center, WJC West Building, 

Room 3334, 1301 Constitution Avenue 

NW, Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal holidays). 

Instructions: All submissions received 

must include the Docket ID No. EPA– 

HQ–OW–2015–0174 for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are open to the public by 

appointment only, to reduce the risk of 

transmitting COVID–19. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries 

and couriers may be received by 

scheduled appointment only. For 

further information on EPA Docket 

Center services and the current status, 

please visit us online at https://

www.epa.gov/dockets. 

EPA is offering two public hearings 

on this proposed rulemaking. Refer to 

the SUPPLEMENTARY INFORMATION section 

below for additional information. 

FOR FURTHER INFORMATION CONTACT: 

Erica Fleisig, Office of Water, Standards 

and Health Protection Division (4305T), 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460; telephone number: (202) 

566–1057; email address: fleisig.erica@

epa.gov. 

SUPPLEMENTARY INFORMATION: This 

proposed rulemaking is organized as 

follows: 

I. Public Participation 

A. Written Comments 

B. Public Hearings 

II. General Information 

A. Does this action apply to me? 

III. Background 

A. Statutory and Regulatory Background 

B. General Recommended Approach for 

Deriving Human Health Criteria 

C. Prior EPA Actions Related to 

Washington’s Human Health Criteria 

IV. Administrator’s Determination That New 

or Revised HHC are Necessary for 

Washington 

A. Existing Criteria Are Not Protective of 

Designated Uses of Waters in the State of 

Washington 

B. Clean Water Act 303(c)(4)(B) 

Administrator’s Determination 

V. Derivation of Human Health Criteria for 

Washington 

A. Scope of EPA’s Proposal 

B. Washington-Specific Human Health 

Criteria Inputs 

C. Proposed Human Health Criteria for 

Washington 

D. Applicability 

E. Alternative Regulatory Approaches and 

Implementation Mechanisms 

VI. Economic Analysis 

A. Identifying Affected Entities 

B. Method for Estimating Costs to Point 

Sources 

C. Results 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 


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