54816 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules 

Section 27–7–114.7. All other fee 

increases are outside the scope of this 

SIP revision action. 

We also propose to approve the 

revisions to Parts A and B of Regulation 

3 in the May 25, 2011 submittal to 

approve the addition of PM2.5 to the 

definitions of ‘‘air pollutant’’ and 

‘‘criteria pollutant’’ in Part A, and the 

revisions of Part B to reflect Colorado’s 

regulation of PM2.5 in the State’s 

construction permit program, including 

PM2.5 thresholds. We also propose to 

approve Colorado’s reinstatement of 

VOC sources to RACT requirements in 

Part B. Finally, we propose to approve 

the minor editorial changes made 

throughout Regulation 3, Parts A, B, and 

D. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations 

(42 U.S.C. 7410(k), 40 CFR 52.02(a)). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements; this 

proposed action does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and, 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, 

Greenhouse gases, Lead, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: August 28, 2013. 

Shaun L. McGrath, 

Regional Administrator, Region 8. 

[FR Doc. 2013–21614 Filed 9–5–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–0652; FRL–9900–73– 

Region6] 

Approval and Promulgation of 

Implementation Plans; Oklahoma; 

Revisions to Excess Emissions 

Requirements; Finding of Substantial 

Inadequacy: and Call for Oklahoma 

State Implementation Plan Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing three 

actions concerning revisions to the 

Oklahoma State Implementation Plan 

(SIP) submitted by the State of 

Oklahoma on July 16, 2010 (the July 16, 

2010 SIP submittal). These actions 

address revisions to the Oklahoma 

Administrative Code (OAC), Title 252, 

Chapter 100, Subchapter 9—Excess 

Emission Reporting Requirements 

(Subchapter 9). In the first action, we 

are proposing approval of certain 

provisions of the July 16, 2010 SIP 

submittal which are consistent with the 

Clean Air Act (CAA or Act). In the 

second action, we are proposing a 

limited approval and limited 

disapproval of certain other provisions 

of the July 16, 2010 SIP submittal which 

will have the overall effect of 

strengthening the Oklahoma SIP, but a 

portion of which are inconsistent with 

the requirements of the CAA. In the 

third action, we are proposing a finding 

of substantial inadequacy and proposing 

a SIP call with a proposed submittal 

date for certain provisions of the July 

16, 2010 SIP submittal associated with 

the proposed limited approval and 

limited disapproval found to be 

inconsistent with CAA requirements, as 

set forth in the second action. If 

finalized, the SIP call associated with 

the proposed finding of substantial 

inadequacy will not, by itself, trigger a 

sanction clock for Oklahoma. This 

rulemaking is being taken in accordance 

with section 110 of the Act. 

DATES: Comments must be received on 

or before October 7, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2010–0652, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• Email: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by email to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7263. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8:00 a.m. and 4:00 p.m. 

weekdays except for legal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2010– 

0652. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 


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1Oklahoma’s July 16, 2010 SIP submittal does not 

include an express demonstration of authority over 

emission sources or activities in Indian country. 

Therefore, our proposed approval and limited 

approval/disapproval of the 2010 Subchapter 9 

provisions does not extend to emission sources or 

activities located in Indian country. This is 

consistent with the CAA requirement that we 

approve state and tribal programs only where there 

is a demonstration of adequate authority. See CAA 

sections 110(a)(2)(E) and 110(o). 

2Throughout this proposed rulemaking, reference 

to sections of the 2010 Subchapter 9 provisions will 

be those sections of the Oklahoma Administrative 

Code (OAC), Title 252, Chapter 100, Subchapter 9, 

as submitted to EPA on July 16, 2010, for approval 

as a revision to the Oklahoma SIP. 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information 

through www.regulations.gov or email 

that you consider to be CBI or otherwise 

protected from disclosure. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. 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: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202– 

2733. 

The State submittal is also available 

for public inspection at the State Air 

Agency listed below during official 

business hours by appointment: 

Oklahoma Department of 

Environmental Quality (ODEQ), Air 

Quality Division, 707 North Robinson 

Street, Oklahoma City, Oklahoma 

73101. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Alan Shar, Air Planning Section (6PD– 

L), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

(214) 665–6691, fax (214) 665–7263, 

email address Shar.Alan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Outline 

I. Summary and Background 

A. What actions are we proposing? 

B. What documents did we use in our 

evaluation of the July 16, 2010 SIP 

submittal? 

C. What is the background for this 

proposed rulemaking? 

II. Evaluation 

A. Introduction 

B. Why are we proposing approval of 

portions of the July 16, 2010 SIP 

submittal? 

C. Why are we proposing a limited 

approval and limited disapproval of 

portions of the July 16, 2010 SIP 

submittal? 

D. Why are we proposing a finding of 

substantial inadequacy and a SIP call? 

III. Proposed Action 

IV. Statutory and Executive Order Reviews 

I. Summary and Background 

A. What actions are we proposing? 

We are proposing three related actions 

regarding the July 16, 2010 SIP 

submittal from the State of Oklahoma. 

This SIP submittal contains revisions to 

Oklahoma’s excess emission rules, 

found in OAC, Title 252, Chapter 100, 

Subchapter 9 (Subchapter 9). More 

specifically, the July 16, 2010 SIP 

submittal: (1) Withdraws revisions to 

Subchapter 9 submitted to EPA on 

February 14, 2002; and (2) requests 

EPA’s approval of revisions to 

Subchapter 9 made by the State in 2010 

(2010 Subchapter 9 provisions). EPA 

approval of the 2010 Subchapter 9 

provisions would replace the 

Subchapter 9 provisions promulgated by 

the State in 1994, and last approved in 

1999 by EPA as part of the current 

Oklahoma SIP. The 2010 Subchapter 9 

provisions were intended by the state to 

meet the requirements of the CAA with 

respect SIP provisions concerning 

excess emissions during startup, 

shutdown, and malfunction. Oklahoma 

developed the July 16, 2010 SIP 

submittal based on EPA’s guidance 

recommendations in place at the time of 

submission. As a part of the July 16, 

2010 SIP submittal, the State took 

several important steps to revise the 

existing SIP to make it consistent with 

CAA requirements, including: (1) 

Improvements to SIP provisions 

pertaining to excess emissions reporting 

requirements; (2) elimination of prior 

SIP provisions that created an 

exemption, exercised through director 

discretion, for excess emission events 

which was not consistent with CAA 

requirements; and (3) creation of 

affirmative defense provisions for excess 

emissions for qualifying sources in lieu 

of previously impermissible exemptions 

for violations of SIP emission 

limitations during such events. The EPA 

appreciates the efforts of ODEQ to 

improve the enforceability of their rules 

with respect to excess emissions. The 

EPA’s proposed actions on ODEQ’s 2010 

Subchapter 9 provisions do not extend 

to sources of air emissions or activities 

located in Indian country, as defined at 

18 U.S.C. § 1151.1 We are proposing 

three related actions in this rulemaking. 

First Action: 

In the first action, we are proposing 

approval of the following sections of the 

2010 Subchapter 9 provisions as a 

revision to the Oklahoma SIP: (1) 

Section 252:100–9–1.1 Applicability; (2) 

section 252:100–9–2 Definitions; and (3) 

sections 252:100–9–7(a) through 

252:100–9–7(e).2 As discussed more 

fully below, these provisions generally 

concern excess emission reporting 

requirements which improve the State’s 

ability to review, analyze, and act in 

response to excess emission reports so 

that the air quality impacts associated 

with such emissions are minimized. 

These revised provisions thus allow 

better assessment of compliance with 

applicable SIP emission limitations and 

enforcement in the event that is 

necessary. EPA notes that these sections 

operate independently from the 

affirmative defense requirements of 

section 252:100–9–8, the subject of 

today’s second proposed action. Table 1 

below identifies sections of the 2010 


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3See, e.g., Approval and Promulgation of 

Implementation Plans; State of Georgia; 77 FR 

38503 (June 28, 2012); and Limited Approval and 

Promulgation of Implementation Plans; Texas; 70 

FR 50205 (August 26, 2005). 

Subchapter 9 provisions which EPA is 

proposing for approval into the 

Oklahoma SIP. 

proposing for approval into the 

Oklahoma SIP. 

TABLE 1—SECTIONS OF THE 2010 SUBCHAPTER 9 PROVISIONS PROPOSED FOR APPROVAL

Section of the 2010 Subchapter 9 

provisions Title Information 

252:100–9–1.1 .............................................. Applicability .................................................................. Propose approval. 

252:100–9–2 ................................................. Definitions .................................................................... Propose approval. 

252:100–9–7(a) ............................................ Immediate notice ......................................................... Propose approval. 

252:100–9–7(b) ............................................ Excess emission event report ..................................... Propose approval. 

252:100–9–7(c) ............................................ Ongoing events ........................................................... Propose approval. 

252:100–9–7(d) ............................................ Alternative reporting .................................................... Propose approval. 

252:100–9–7(e) ............................................ Certificate of truth, accuracy and completeness required.Propose approval. 

Second Action: 

In the second action, we are 

proposing a limited approval and 

limited disapproval of the 2010 

Subchapter 9 provisions which are not 

the subject of EPA’s first action 

discussed above. Specifically, we are 

proposing a concurrent limited approval 

and limited disapproval of section 

252:100–9–1. Purpose, and the entire 

section 252:100–9–8. Affirmative 

defenses, as a revision to the Oklahoma 

SIP. Table 2 below identifies sections of 

the 2010 Subchapter 9 provisions 

proposed for concurrent limited 

approval and limited disapproval. 

TABLE 2—SECTIONS OF THE 2010 SUBCHAPTER 9 PROVISIONS PROPOSED FOR LIMITED APPROVAL AND LIMITED

DISAPPROVAL

Section of the 2010 Subchapter 9 

provisions Title Information 

252:100–9–1 ................................................. Purpose ....................................................................... Propose limited approval and limited disapproval. 

252:100–9–8(a) ............................................ Affirmative defenses—General .................................... Propose limited approval and limited disapproval. 

252:100–9–8(b) ............................................ Affirmative defenses for excess emissions during 

malfunctions.

Propose limited approval and limited disapproval. 

252:100–9–8(c) ............................................ Affirmative defenses for excess emissions during 

startup and shutdown.

Propose limited approval and limited disapproval. 

252:100–9–8(d) ............................................ Affirmative defenses prohibited ................................... Propose limited approval and limited disapproval. 

252:100–9–8(e) ............................................ Affirmative defense determination ............................... Propose limited approval and limited disapproval. 

The EPA has utilized the limited 

approval approach numerous times in 

SIP actions across the nation over the 

last twenty years.3 As discussed in 

section II ‘‘Evaluation’’ below, EPA 

believes that approval of sections 

252:100–9–1 and 252:100–9–8 of the 

2010 Subchapter 9 provisions will 

strengthen the Oklahoma SIP and 

represent an overall improvement in the 

regulation of excess emissions as 

compared to the excess emissions 

provisions found in the Subchapter 9 

provisions in the currently EPAapproved Oklahoma SIP (last approved 

by EPA in 1999); however, there are 

certain portions in the 2010 Subchapter 

9 provisions (e.g., the creation of an 

affirmative defense for excess emissions 

resulting from startup and shutdown 

activities) which are inconsistent with 

identified CAA requirements. Because 

these revisions are an improvement over 

the currently approved SIP, but are not 

fully consistent with the CAA, EPA’s 

approval must be limited and we are 

concurrently proposing a limited 

disapproval. Finally, to ensure that the 

inconsistencies in these specific 

provisions with the CAA are corrected, 

EPA’s third action below is a proposed 

finding of substantial inadequacy and a 

proposed SIP call to address those 

provisions of the proposed limited 

approval and limited disapproval action 

which are inconsistent with CAA 

requirements applicable to SIP 

revisions. If EPA finalizes the proposed 

limited approval and limited 

disapproval of sections 252:100–9–1 

and 252:100–9–8 of the 2010 

Subchapter 9 provisions, then EPA will 

also finalize the proposed finding of 

substantial inadequacy and proposed 

SIP call with respect to these provisions, 

as well. 

Third Action: 

As stated above, EPA’s third action is 

a proposed finding of substantial 

inadequacy and proposed SIP call 

which, if finalized together with EPA’s 

second action concerning the limited 

approval and limited disapproval, 

would require Oklahoma to submit 

revisions to those 2010 Subchapter 9 

provisions in the limited approval and 

limited disapproval found to be 

inconsistent with the identified CAA 

requirements, or otherwise submit 

revisions to its excess emission 

provisions that comport with the 

requirements of the CAA. For a 

discussion regarding the timeframe for 

the adoption and submission of 

proposed revisions to the Oklahoma SIP 

provisions concerning excess emissions 

found in the 2010 Subchapter 9 

provisions, see section II(D) below. 


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As all of the sections of the 2010 

Subchapter 9 provisions listed in Table 

2 above are interrelated and not 

separable from one another other, as 

discussed in Section II(C) below, they 

are the subject of the today’s proposed 

finding of substantial inadequacy and 

proposed SIP call. However, Table 3 

below identifies the specific sections of 

the 2010 Subchapter 9 provisions which 

are inconsistent with the requirements 

of the CAA and form the basis for the 

proposed finding of substantial 

inadequacy and the proposed SIP call. 

TABLE 3—SECTIONS OF THE 2010 SUBCHAPTER 9 PROVISIONS THAT FORM THE BASIS FOR THE PROPOSED FINDING OF

SUBSTANTIAL INADEQUACY AND PROPOSED SIP CALL

Section of the 2010 Subchapter 9 

provisions Title Information 

252:100–9–1 ................................................. Purpose ....................................................................... Provisions not limited to excess emissions 

during unplanned events. 

252:100–9–8(a) ............................................ Affirmative defenses—General .................................... Provisions also create an affirmative defense for planned events. 

252:100–9–8(c) ............................................ Affirmative defenses for excess emissions during 

startup and shutdown.

Provisions establish criteria for affirmative 

defense for planned events. 

If finalized, the overall effect of the 

three actions proposed by EPA today 

will be the replacement of the existing 

Subchapter 9 provisions of the 

Oklahoma SIP (i.e., those provisions 

approved by EPA on November 3, 1999, 

(64 FR 59629 and codified at 40 CFR 

52.1920(c)(48)), with the revisions 

contained in the specific 2010 

Subchapter 9 provisions proposed for 

approval in today’s first action and the 

specific 2010 Subchapter 9 provisions 

proposed for a limited approval and 

limited disapproval in today’s second 

action. Thus, if today’s proposed actions 

are finalized, the current Subchapter 9 

provisions approved in 1999 into the 

Oklahoma SIP will be replaced by the 

2010 Subchapter 9 provisions, and the 

entire 2010 Subchapter 9 provisions 

will become part of the Oklahoma SIP. 

It is important to note that if finalized, 

certain portions of the 2010 Subchapter 

9 provisions pertaining to affirmative 

defenses will also be the subject of a 

finding of substantial inadequacy and a 

SIP call, as reflected by EPA’s third 

action proposed today, and discussed in 

Section II(D) below. 

Also, section 252:100–9–3 of the 

Subchapter 9 provisions in the current 

EPA-approved Oklahoma SIP is 

presently a subject of EPA’s proposed 

Findings of Substantial Inadequacy and 

SIP Calls, 78 FR 12460 (February 22, 

2013) (EPA’s February 22, 2013 

Proposed Startup, Shutdown, and 

Malfunction (SSM) SIP Calls). If today’s 

actions are finalized, then the 

Subchapter 9 provisions in the currently 

EPA-approved Oklahoma SIP (including 

section 252:100–9–3 of those 

Subchapter 9 provisions) will no longer 

be part of the Oklahoma SIP. 

Consequently, if EPA finalizes approval 

of the 2010 Subchapter 9 provisions, 

any outstanding SIP call related to 

section 252:100:9–3 of the currently 

EPA-approved SIP, such as the one 

proposed under EPA’s February 22, 

2013. Proposed SSM SIP Calls, will be 

moot, because section 252:100–9–3 of 

currently EPA-approved Oklahoma SIP 

will no longer be part of the federallyapproved Oklahoma SIP. Final approval 

of the 2010 Subchapter 9 provisions will 

resolve the specific SIP deficiencies that 

EPA identified in the EPA’s February 

22, 2013 Proposed SSM SIP Calls. 

As discussed below, EPA’s proposed 

finding of substantial inadequacy and 

proposed SIP call (with respect to 

today’s second action concerning the 

limited approval and limited 

disapproval of certain provisions of the 

2010 Subchapter 9 provisions) relates to 

specific inseparable sections (or 

inseparable words within a section) of 

the 2010 Subchapter 9 provisions. More 

specifically, EPA is proposing to find 

that the inclusion of an affirmative 

defense for excess emissions during 

startup and shutdown, such as the one 

contained in sections 252:100–9–8(a) 

and (c) of the 2010 Subchapter 9 

provisions, is inconsistent with the 

requirements of CAA section 110. 

Further, it is contrary to the 

fundamental enforcement structure 

provided in CAA sections 113 and 304, 

thereby constituting a substantial 

inadequacy, which renders those SIP 

provisions impermissible. See Section II 

‘‘Evaluation’’ below and also EPA’s 

February 22, 2013 Proposed SSM SIP 

Calls, a copy of which is included in the 

docket for this rulemaking, for a more 

detailed discussion of the affirmative 

defense for planned activities, such as 

startup and shutdown. 

B. What documents did we use in our 

evaluation of the July 16, 2010 SIP 

submittal? 

EPA’s interpretation of the Act as it 

applies to SIP provisions that address 

excess emissions occurring during 

periods of startup, shutdown, and 

malfunction is set forth in a series of 

guidance documents. These guidance 

documents 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 (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 

(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 final rule 

for Utah’s sulfur dioxide control strategy 

(Kennecott Copper), April 27, 1977 (42 

FR 21472); (2) EPA’s final rule for 

Idaho’s sulfur dioxide control strategy, 

November 8, 1977 (42 FR 58171); (3) 

EPA’s ‘‘Finding of Substantial 

Inadequacy of Implementation Plan: 

Call for Utah State Implementation Plan 

Revision,’’ April 18, 2011 (76 FR 21639). 

EPA has recently issued a proposal in 

response to a petition for rulemaking 

concerning CAA requirement for SIP 

provisions that address excess 

emissions, reiterating EPA’s 


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interpretation of the CAA with respect 

to such provisions. See EPA’s February 

22, 2013 Proposed SSM SIP Calls— 

Docket No. EPA–HQ–OAR–2012–0322; 

and EPA’s February 4, 2013, Statutory, 

Regulatory, and Policy Context 

Memorandum for the February 22, 2013 

Proposed SSM SIP Calls. In this recent 

action, EPA has specifically addressed 

the requirements of the CAA with 

respect to SIP provisions that provide an 

affirmative defense for violations of 

emission limitations due to excess 

emissions during SSM events. 

In addition, EPA evaluation 

responsibilities associated with the 

review of the July 16, 2010 SIP 

submittal draw upon the concepts of 

‘‘separability’’ as expressed in 

Bethlehem Steel Corp. v. Gorsuch, 742 

F. 2d 1028 (7th Cir. 1984) and the EPA 

memorandum, dated July 9, 1992, from 

John Calcagni, Director, Air Quality 

Management Division, entitled 

‘‘Processing of State Implementation 

Plan (SIP) Submittals’’ (1992 Calcagni 

Memo). A copy of each relevant 

document is available in the docket for 

this rulemaking. 

C. What is the background for this 

proposed rulemaking? 

On January 25, 1984 (49 FR 3084), 

EPA approved Regulation 1.5, Reports 

Required: Excess Emissions During 

Startup, Shutdown and Malfunction of 

Equipment, into the Oklahoma SIP. This 

revision became effective on February 

24, 1984. Later, Regulation 1.5 was 

recodified and renumbered by ODEQ (as 

Subchapter 9 Excess Emission and 

Malfunction Reporting Requirements) 

and approved by EPA as an 

administrative revision to the Oklahoma 

SIP on November 3, 1999 (64 FR 59629) 

(1994 Subchapter 9 provisions). As of 

today’s proposed action, the 1994 

Subchapter 9 provisions remain part of 

the EPA-approved Oklahoma SIP. See 

part 1 of the Technical Support 

Document (TSD) prepared in 

conjunction with this proposed 

rulemaking. 

On February 14, 2002, ODEQ 

submitted to EPA a revised version of 

Subchapter 9 that was not acted upon in 

the approval action of the Air Quality 

Implementation Plans; Oklahoma; 

Recodification of Regulations, published 

on December 29, 2008 at 73 FR 79400 

(also known as the Oklahoma’s Big SIP). 

See part 2 of the TSD. The Subchapter 

9 portion of the February 14, 2002 

submittal was subsequently withdrawn 

and replaced by ODEQ with the new 

Subchapter 9 provisions, as part of the 

July 16, 2010 SIP submittal which is the 

subject of today’s proposed actions 

(2010 Subchapter 9 provisions). See part 

3 of TSD. 

II. Evaluation 

A. Introduction 

Under the principle of cooperative 

federalism, both states and EPA have 

authorities and responsibilities under 

the CAA with respect to SIPs. Pursuant 

to section 109 of the CAA, 42 USC 

§ 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. Under CAA 

section 107(a), each state has the 

primary responsibility for assuring that 

the NAAQS are attained and maintained 

throughout the state. Under section 

110(a)(1) of the CAA, 42 U.S.C. 

7410(a)(1), each state is required to 

develop and submit to EPA for approval 

a plan which provides for the 

implementation, maintenance, and 

enforcement of the NAAQS; such plans 

are called state implementation plans or 

SIPs. Section 110(a)(2) of the CAA, 42 

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

meet the requirements listed in section 

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

section 110(a)(2)(H)(ii), states have a 

specific duty to revise their SIPs 

whenever EPA finds that the SIP is 

substantially inadequate to comply with 

requirements established under the Act. 

In the development of its SIP, a state 

has broad authority to develop the mix 

of emission limitations it deems best 

suited for its particular situation, but the 

exercise of this discretion is not 

unbridled. The states have the primary 

responsibility to develop SIPs that meet 

applicable statutory and regulatory 

requirements for attaining, maintaining, 

and enforcing the NAAQS. Under 

section 110(k) of the CAA, however, 

EPA is required to determine whether or 

not a SIP submission in fact meets all 

applicable requirements of the Act. EPA 

is authorized to approve, disapprove, 

partially approve and partially 

disapprove, or conditionally approve a 

given 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. In 

addition, when EPA finds a state’s 

existing SIP is substantially inadequate 

to attain or maintain a NAAQS or 

otherwise to comply with any other 

CAA requirement, EPA is authorized 

under section 110(k)(5) to require the 

state to revise its SIP as necessary to 

correct such inadequacies. 

Sections 110(l) and 193 of the CAA 

impose additional requirements upon 

EPA when reviewing a state’s proposed 

revision to its SIP. Section 110(l) of the 

CAA, 42 U.S.C. 7410(l), provides that 

EPA may not approve a SIP revision if 

‘‘the revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of this chapter.’’ In 

addition, section 193 of the CAA 

prohibits SIP revisions that would affect 

control measures in effect prior to the 

1990 amendments to the CAA in any 

area that is designated nonattainment 

for any NAAQS, unless the modification 

insures equivalent to greater emission 

reductions of such air pollutant. A more 

detailed discussion of the SIP 

requirements that may be relevant to 

this rulemaking are included in the 

docket, including section VIII ‘‘Legal 

Authority, Process, and Timing for SIP 

Calls’’ of EPA’s February 22, 2013 

Proposed SSM SIP Calls (78 FR 12483), 

and the associated legal memorandum 

in the docket for that rulemaking. 

The statutory framework summary 

presented above underlies EPA’s 

evaluation of SIP submissions as they 

relate to excess emissions. The EPA has 

a longstanding interpretation of the 

CAA with respect to the treatment of 

excess emissions during periods of 

startup, shutdown or malfunctions in 

SIPs. See section I(B) above. Central to 

EPA’s interpretation is the definition 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 section 

110(a)(2)(A) of the Act, 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 the 

applicable requirements of the Act. In 

addition, under CAA section 

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

each SIP must include a program to 

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, compliance with 

such limitations 100% of the time may 

be practically and technologically 

impossible. Case law holding that 

technology-based standards should 

account for the practical realities of 

technology support EPA’s view that an 

enforcement program under a SIP that 

incorporates some level of flexibility is 


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4See, 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) 

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

841 (5th Cir. 2013), Cert. pending (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); 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). 

reasonable and consistent with the 

overall intent of the CAA.4 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 the control of the owner 

or operator may not be appropriate. 

In addressing excess emissions due to 

sudden and unavoidable malfunctions, 

the EPA has provided guidance on three 

approaches states may 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 

facts and 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 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), 

and for which the defendant has the 

burden to prove that certain criteria 

have been met. See page 2 of the 

Attachment to the 1999 Policy; see also 

EPA’s February 22, 2013 Proposed SSM 

SIP Calls, at 78 FR 12478. 

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 guidance 

recommends criteria that it considers 

necessary to assure that the affirmative 

defense is consistent with CAA 

requirements for SIP provisions. The 

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 in actions for 

penalties for malfunctions that are 

beyond the control of the owner where 

the owner 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, 

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 I.B above. In the 2010 

Subchapter 9 provisions of its July 16, 

2010 SIP submittal, ODEQ adopted the 

affirmative defense approach to address 

excess emissions events. 

EPA acknowledges that ODEQ 

developed these affirmative defenses in 

the July 16, 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 section 110(k) and section 

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 the SIP submission. 

B. Why are we proposing approval of 

portions of the July 16, 2010 SIP 

submittal? 

Consistent with provisions of section 

110(k) and section 110(l) of the CAA, 42 

U.S.C. 7410(k) and 7410(l), EPA believes 

that there are portions of the 2010 

Subchapter 9 provisions which are 

consistent with the requirements of the 

CAA for SIPs and would not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress or any other applicable 

requirement of the CAA. These 

provisions are identified in Table 1 

above and include: (1) Section 252:100– 

9–1.1 Applicability, which provides that 

owners and operators of air contaminant 

sources are subject to the requirements 

of this subchapter; (2) section 252:100– 

9–2, which defines terms that are 

frequently used in the Subchapter 9 

provisions; and (3) sections 252:100–9– 

7(a) through (e) which address the 

notification, reporting requirements, 

and certificate of accuracy of the 

information concerning excess 

emissions events. Together these 

provisions require owners and operators 

to notify and report excess emissions to 

ODEQ within specified timeframes. 

The proper notification and reporting 

of excess emission events and the 

relevant information corresponding to 

those events will enable ODEQ to 

review, evaluate, and utilize the 

information submitted as a tool in its air 

quality planning/management efforts 

and assist its efforts to provide for 

attainment and maintenance of the 

NAAQS and other applicable 

requirements of the Act. These 

applicability, definitions, and 

notification requirements in the 2010 

Subchapter 9 provisions are 

independent from the affirmative 

defense requirements set forth in section 

252:100–9–8 of the 2010 Subchapter 9 

provisions. In other words, approval of 

these provisions (section 252:100–9–1.1, 

section 252:100–9–2, and sections 

252:100–9–7(a) through (e)) into the 

Oklahoma SIP is consistent with, and 

will not render other sections of the 

2010 Subchapter 9 provisions more 

stringent than what the State intended 

or anticipated when ODEQ adopted the 

2010 Subchapter 9 provisions. 

Therefore, EPA believes that the 

proposed approval of these provisions 

are separable from the remainder of the 

2010 Subchapter 9 provisions submitted 

as part of the July 16, 2010 SIP 

submittal. In particular, we believe that 

EPA’s approval of these specific 

provisions will not result in sections 

252:100–9–1.1, 252:100–9–2, and 

252:100–9–7(a) through (e), as reflected 

in the first action, being more stringent 

than ODEQ anticipated or intended. See 

Bethlehem Steel Corp. v. Gorsuch, 742 

F.2d 1028, 1036–37 (7th Cir. 1984); see 

also 1992 Calcagni Memo. 

Furthermore, proposed approval of 

the specific provisions covered by the 

first action would enhance the ability of 

the State, EPA, and citizens to address 

excess emissions-related activities 

consistent with CAA sections 110, 113, 

302(k) and 304, while simultaneously 

eliminating the discretionary 

exemptions from compliance with 

otherwise applicable emission 

limitations under the Subchapter 9 

provisions in the currently EPAapproved Oklahoma SIP. Removal of the 

existing provisions that allow 

exemptions for excess emissions during 

SSM events via the exercise of director’s 

discretion brings the Oklahoma SIP into 


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6See Luminant Generation Co. v. EPA, 714 F.3d 

841,856 (5th Cir. 2013) Cert. pending, 

acknowledging EPA’s belief that ‘‘an effective 

enforcement program must be able to collect 

penalties to deter avoidable violations.’’ See also, 

EPA’s February 22, 2013. Proposed SIP Calls (78 FR 

12460, 12480). 

compliance with CAA requirements 

with respect to this issue. 

As explained in more detail in EPA’s 

February 22, 2013 Proposed SSM SIP 

Calls (78 FR 12460), such director’s 

discretion provisions are inconsistent 

with fundamental CAA requirements for 

SIP provisions. Therefore, our proposed 

approval of those sections of the 2010 

Subchapter 9 provisions covered by this 

first proposed action improves the SIP 

for Oklahoma and comports with the 

standards governing SIP revisions as set 

forth in section 110(k) and section 110(l) 

of the Act. EPA believes that the specific 

sections of the 2010 Subchapter 9 

provisions, identified in the first action 

of this document, meet the statutory 

requirements of the Act for SIP 

provisions and assist in providing for 

attainment and maintenance of the 

NAAQS and protection of PSD 

increments. We are therefore proposing 

the approval of sections 252:100–9–1.1, 

252:100–9–2, and 252:100–9–7(a) 

through (e) of the 2010 Subchapter 9 

provisions as a revision to the SIP for 

Oklahoma. 

C. Why are we proposing a limited 

approval and limited disapproval of 

portions of the July 16, 2010 SIP 

submittal? 

In some cases, a SIP submittal may 

contain certain provisions that meet the 

applicable requirements of the Act along 

with other provisions that do not meet 

CAA requirements, and the provisions 

are not separable. Although the 

submittal may not meet all of the 

applicable requirements, EPA may 

consider whether the submittal as a 

whole has a strengthening effect on the 

SIP. If that is the case, a limited 

approval may be used to approve a rule 

that strengthens the existing SIP, 

because it constitutes an improvement 

over what is currently in the SIP and 

meets some of the applicable 

requirements of the Act. If the rule does 

not meet all of the applicable 

requirements, EPA may elect to use a 

limited disapproval in conjunction with 

the limited approval. The Act does not 

expressly provide for limited approvals 

and limited disapprovals; rather, EPA is 

using its ‘‘gap-filling’’ authority under 

section 301(a) of the Act, 42 U.S.C. 

7601(a), in conjunction with the 

authority under CAA section 110(k)(3), 

to interpret the Act to provide for this 

type of approval action. 

The primary advantage to using the 

limited approval approach is to make 

the state’s SIP submittal federally 

enforceable and to increase the SIP’s 

potential to achieve additional emission 

reductions. The utility of the limited 

disapproval approach is to identify the 

specific aspects of the SIP submittal that 

are not fully consistent with CAA 

requirements so that the state may then 

take appropriate action to make 

necessary SIP revisions. EPA’s 

evaluation of the 2010 Subchapter 9 

provisions submitted by Oklahoma 

indicates that certain portions of the SIP 

submittal present a situation where a 

limited approval and limited 

disapproval is the correct approach. 

EPA is proposing limited approval 

and limited disapproval of the following 

portions of the 2010 Subchapter 9 

provisions submitted as part of the July 

16, 2010 SIP submittal: (1) Section 

252:100–9–1 Purpose, which sets forth 

the purpose of the 2010 Subchapter 9 

provisions and includes a reference to 

the affirmative defense provisions; and 

(2) section 252:100–9–8, Affirmative 

defenses. As discussed below, these 

provisions as a whole strengthen the 

SIP, even though there are portions of 

these provisions which are inconsistent 

with CAA requirements for SIP 

provisions as they relate to affirmative 

defenses for violations due to excess 

emissions during certain types of 

events. Furthermore, EPA finds that 

those portions which are inconsistent 

with the requirements of the Act are not 

separable from the remainder of the 

provisions that are consistent with the 

CAA requirements. Therefore, EPA is 

proposing a limited approval and 

limited disapproval of these provisions 

as a whole. The following paragraphs 

discuss each of these provisions in 

detail and describe why EPA believes 

that they do not meet applicable CAA 

requirements. 

Section 252:100–9–1. Purpose of the 

2010 Subchapter 9 provision is 

inconsistent with the requirements of 

the CAA because it contains an overly 

broad reference to the affirmative 

defense provisions for excess emissions. 

The term ‘‘excess emissions,’’ defined in 

section 252:100–9–2, is not limited to 

excess emissions occurring during 

unplanned events such as malfunctions. 

As explained in detail below, EPA 

believes that the creation of an 

affirmative defense for violations due to 

excess emissions from planned events— 

such as startup, shutdown, and 

maintenance—is inconsistent with the 

requirements of CAA section 110(a) and 

is inconsistent with the fundamental 

enforcement structure provided in CAA 

sections 113 and 304.6 Should 

Oklahoma elect to incorporate an 

affirmative defense provision for excess 

emissions during unavoidable violations 

into the Oklahoma SIP, then section 

252:100–9–1 should be revised to limit 

the affirmative defense reference only to 

those excess emissions during 

malfunctions, as discussed below. 

EPA’s evaluation of the affirmative 

defense provisions established in 

section 252:100–9–8 of the 2010 

Subchapter 9 provisions begins with 

section 252:100–9–8(a). The first 

sentence of that section states that all 

excess emissions regardless of cause are 

violations; however, the second 

sentence in that section provides an 

affirmative defense applicable to 

violations due to excess emissions 

during startup, shutdown and 

malfunction (all three categorical 

events). Section 252:100–9–8(a) as 

submitted is an improvement to the 

current EPA-approved SIP for excess 

emissions (i.e., the 1994 Subchapter 9 

provisions). For example, as discussed 

in the TSD included in the docket for 

this rulemaking, section 252:100–9–3 of 

the current EPA-approved Oklahoma 

SIP creates an exemption via director 

discretion, such that excess emissions 

during startup, shutdown, malfunction, 

or maintenance are not violations of the 

applicable emission limitations. 

In accordance with CAA sections 

110(a)(2)(A) and 302(k), SIPs must 

contain ‘‘emission limitations’’ and 

those limitations must be continuous. 

Thus, any excess emissions above the 

level of the applicable SIP emission 

limitations must be considered a 

violation of such limitations. In 

addition, SIP provisions that operate to 

create exemptions from SIP 

requirements through the exercise of 

director’s discretion are also 

inconsistent with CAA requirements for 

SIP revisions. For these reasons, as 

discussed in EPA’s February 22, 2013 

Proposed SSM SIP Calls (78 FR 12524), 

EPA has already proposed a finding of 

substantial inadequacy and proposed a 

SIP call with respect to OAC 252:110– 

9–3 of the currently EPA-approved 

Oklahoma SIP. Section 252:100–9–8(a) 

of the 2010 Subchapter 9 provisions is 

an improvement to the current EPAapproved Oklahoma SIP because it 

eliminates the exemption via director 

discretion provision, so that all excess 

emissions regardless of cause are 

considered violations. 

However, section 252:100–9–8(a) is 

also inconsistent with the requirements 

provided in CAA sections 110(a)(2) and 

conflicts with the fundamental 

enforcement structure provided in CAA 

sections 113 and 304, because it creates 

an affirmative defense for violations due 


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7EPA 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 also provides 

guidance on how such SIP provisions may be 

developed to meet CAA requirements. 

8See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 

1028, 1036–37 (7th Cir. 1984); see also 1992 

Calcagni Memo at 2. 

to excess emissions during startups and 

shutdowns. As explained in Section 

VII(C), ‘‘Affirmative Defense Provisions 

During Periods of Startup and 

Shutdown,’’ of EPA’s February 22, 2013 

Proposed SIP Calls, EPA’s approval of a 

SIP provision which provides a limited 

affirmative defense to a source for 

excess emissions during periods of 

malfunction may be permissible, but 

EPA’s approval of such a defense would 

not be permissible for excess emissions 

during periods of startup and shutdown. 

See 78 FR 12480. 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 control 

of the owner or operator of the source, 

is inconsistent with the requirements 

provided in CAA section 110(a) and the 

fundamental enforcement structure 

provided in CAA sections 113 and 304, 

which provide for potential civil 

penalties for violations of SIP 

requirements. 

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 owner or 

operator of the source, and the owner or 

operator of the source will have taken 

steps to prevent the violation and to 

minimize the effects of the violation 

after it occurs. 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 owners or operators of sources, when 

their conduct justifies this relief. Such 

is not the case with planned and 

predictable events, such as startups and 

shutdowns, during which the owners or 

operators of 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.7 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 

control of the owner or operator of the 

source, and thus is diametrically 

opposed to the intended purpose of 

such an affirmative defense to 

encourage better compliance even by 

sources for which 100 percent 

compliance is not possible. 

As explained above, EPA interprets 

the CAA to allow a SIP revision which 

provides a narrowly tailored affirmative 

defense for excess emissions due to 

malfunctions; however, it cannot 

approve such a defense for excess 

emissions during planned events such 

as startups and shutdown activities. 

Separating the words ‘‘startup’’ and 

‘‘shutdown’’ from the remainder of the 

second sentence in section 252:100–9– 

8(a) could make the approval of the 

remainder of that section more stringent 

than Oklahoma anticipated or intended. 

For example, had Oklahoma known at 

the time of the rule adoption it would 

be impermissible for EPA to approve a 

SIP revision which creates an 

affirmative defense for excess emissions 

due to startups and shutdowns, ODEQ 

may have elected to establish alternative 

emission limitations or other control 

measures or techniques designed to 

minimize emissions during startup and 

shutdown activities in lieu of the 

affirmative defense. Applying the 

principles established in Bethlehem 

Steel and as expressed in the 1992 

Calcagni Memo, we believe that in this 

particular factual scenario with the 

wording of these specific provisions, 

EPA cannot merely excise the words 

‘‘startup’’ and ‘‘shutdown’’ from the 

second sentence in section 252:100–9– 

8(a), and approve the remainder of the 

section into the Oklahoma SIP.8

Likewise, in looking at the other 

provisions of section 252:100–9–8, we 

believe that they are not separable from 

section 252:100–9–8(a), which is the 

general provision that establishes the 

affirmative defenses for startup, 

shutdown, and malfunction events in 

the first instance. That is, the general 

provisions of section 252:100–9–8(a) 

which create the affirmative defenses 

are inextricably intertwined with the 

remainder of the other provisions in 

section 252:100–9–8 (that is, sections 

252:100–9–8(b) through 252:100–9– 

8(e)), and those latter provisions cannot 

stand by themselves. Given that EPA 

cannot propose a full approval of 

section 252:100–9–8, it follows that EPA 

cannot propose full approval of section 

252:100–9–1 which states that part of 

the purpose of the Subchapter 9 

provisions is to establish affirmative 

defenses for excess emissions for all 

three categories of events, as discussed 

above. 

Although EPA cannot propose full 

approval of section 252:100–9–8(a), we 

have evaluated section 252:100–9–8(b) 

with respect to the affirmative defense 

for excess emissions during 

malfunctions for consistency with CAA 

requirements. This provision requires 

that in asserting an affirmative defense 

for excess emissions during 

malfunctions, the owner or operator of 

a facility must demonstrate certain 

criteria by a preponderance of evidence 

in order to qualify for the affirmative 

defense in a judicial or administrative 

proceeding. EPA has guidance making 

recommendations for criteria 

appropriate for affirmative defense 

provisions that would be consistent 

with the requirements of the CAA. 

EPA’s 1999 Policy and the February 22, 

2013 Proposed SSM SIP Calls lay out 

these criteria. These are 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. Our evaluation 

indicates that the affirmative defense 

criteria set forth in 252:100–9–8(b) 

combined with the requisites set forth in 

sections 252:100–9–8(d) and (e) are 

sufficiently consistent with these 

recommended criteria for affirmative 

defense provisions in SIPs for 

malfunctions. For a detailed comparison 

of the affirmative defense criteria for 

malfunctions in the 2010 Subchapter 9 

provisions with those recommended in 

EPA’s guidance, see the TSD. 

Therefore, as part of the limited 

approval, we propose that these sections 

constitute a sufficiently narrow 

affirmative defense provision for 

malfunctions that would not interfere 

with the CAA requirements discussed 

above. As such, section 252:100–9–8(b) 

of the 2010 Subchapter 9 provisions is 

not itself substantially inadequate and is 

not the basis for the proposed SIP call 

that is part of the third action proposed 

today. However, because the affirmative 

defense for malfunction events is not 

separable from the affirmative defense 

provision applicable to startup and 

shutdown events, it will nevertheless be 

included in the proposed finding of 

substantial inadequacy and proposed 

SIP call in the third action. Should 

Oklahoma elect to establish an 

affirmative defense restricted to 

malfunctions, then section 252:100–9– 

8(b) could be resubmitted at ODEQ’s 

discretion. 

As part of the limited disapproval, we 

propose that the affirmative defense 

provisions applicable to startup and 

shutdown are not consistent with CAA 

requirements for SIP provisions. Section 

252:100–9–8(c) provides that in 


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9We note that 252:100–9–8(a) of the 2010 

Subchapter 9 provisions provides an affirmative 

defense to owners and operators for civil or 

administrative penalty actions for excess emissions 

during emission events. We interpret the 

‘‘determination’’ language in 252:100–9–8(e) to 

mean how the Director determines whether or not 

to pursue enforcement against an owner and 

operator for excess emissions violations. 

asserting an affirmative defense for 

excess emissions during startup and 

shutdown, the owner or operator of a 

facility must demonstrate certain 

criteria by a preponderance of evidence 

in a judicial or administrative 

proceeding. As discussed above, 

however, an affirmative defense for 

planned events, such as startup and 

shutdown, is inconsistent with and 

would interfere with the requirements 

of CAA section 110(a) and the 

fundamental enforcement structure 

provided in CAA sections 113 and 304 

which provide for potential civil 

penalties for violations of SIP emission 

limits. Accordingly, these deficiencies 

in section 252:100–9–8(c) form part of 

the basis for the proposed finding of 

substantial inadequacy and proposed 

SIP call, as discussed in the third action 

proposed today. 

Section 252:100–9–8(d) identifies 

situations where assertion of the 

affirmative defense is not allowed and 

Section 252:100–9–8(e) states that the 

Director will consider the notification 

requirements, in addition to other 

relevant information in the 

determination process,9 but such 

determinations should not be construed 

as limiting EPA or citizens’ authority to 

enforce the emission limits of the SIP 

under the Act. Taken together, these 

sections provide for enforcement and 

compliance determination of a source 

during excess emission events. If 

limited to affirmative defenses for 

violations due to excess emissions 

during malfunctions, these two 

provisions would not interfere with the 

requirements set forth in CAA sections 

110(a) and 302(k), nor would such 

sections be inconsistent with the 

fundamental enforcement structure 

provided in CAA sections 113 and 304. 

Accordingly, sections 252:100–9–8(d) 

and 252:00–9–8(e) are not substantially 

inadequate with CAA requirements and 

do not form the basis for the proposed 

finding of substantial inadequacy and 

proposed SIP call, as discussed in the 

third action proposed today. 

In summary, EPA believes that the 

affirmative defense provisions of section 

252:100–9–8, taken as a whole, when 

compared against the currently EPAapproved SIP provisions for excess 

emissions, would strengthen the SIP for 

Oklahoma, if approved. However, there 

are specific provisions, namely those 

that would provide for affirmative 

defenses for violations due to excess 

emission during planned events such as 

startups and shutdowns, which are 

inconsistent with applicable 

requirements of the CAA for SIP 

purposes. Therefore, we are proposing a 

limited approval and limited 

disapproval of sections 252:100–9–1 

and 252:100–9–8 of the 2010 

Subchapter 9 provisions into the SIP for 

Oklahoma. If EPA finalizes the limited 

approval and limited disapproval, these 

sections (sections 252:100–9–1 and 

252:100–9–8) will become part of the 

SIP and federally enforceable until EPA 

approves a revised submission from 

Oklahoma that is fully approvable. To 

ensure Oklahoma addresses the three 

sections that form the basis of EPA’s 

limited approval and limited 

disapproval (sections 252:100–9–1, 

252:100–9–8(a), and 252:100–9–8(c)) we 

are simultaneously proposing a finding 

of substantial inadequacy and SIP call to 

address these three sections, if EPA 

finalizes that limited approval and 

limited disapproval in the final action. 

The next section discusses the proposed 

finding of substantial inadequacy and 

proposed SIP call in more detail. 

D. Why are we proposing a finding of 

substantial inadequacy and a SIP call? 

As stated in Section II(C) above, 

today’s action proposes the limited 

approval and limited disapproval of 

those portions of the 2010 Subchapter 9 

provisions identified in Table 2 above. 

Should today’s second action be 

finalized as proposed, all of those 

provisions will become part of the 

Oklahoma SIP. However, as noted 

above, we recognize that certain 

portions of those provisions (pertaining 

in various ways to the affirmative 

defense provisions applicable to startup 

and shutdown events) do not meet all 

CAA requirements for SIP purposes. In 

order to ensure that Oklahoma takes 

action to correct those specific 

deficiencies, we are also proposing a 

finding of substantial inadequacy and a 

SIP call with respect to the provisions 

for which EPA is proposing the limited 

approval and limited disapproval, 

which will be finalized when EPA 

finalizes the second action as proposed 

today. The legal basis for the finding of 

substantial inadequacy and the SIP call 

and a discussion of the specific 

provisions subject to the proposed SIP 

call are discussed below. 

The CAA provides a mechanism for 

the correction of flawed SIPs, under 

CAA section 110(k)(5), which provides: 

(5) Calls for plan revisions 

Whenever the Administrator finds that the 

applicable implementation plan for any area 

is substantially inadequate to attain or 

maintain the relevant national ambient air 

quality standards, to mitigate adequately the 

interstate pollutant transport described in 

section [176A] of this title or section [184] of 

this title, or to otherwise comply with any 

requirement of [the Act], the Administrator 

shall require the State to revise the plan as 

necessary to correct such inadequacies. The 

Administrator shall notify the State of the 

inadequacies and may establish reasonable 

deadlines (not to exceed 18 months after the 

date of such notice) for the submission of 

such plan revisions. 

By its explicit terms, this provision 

authorizes the EPA to find that a state’s 

SIP is ‘‘substantially inadequate’’ to 

meet CAA requirements and, based on 

that finding, to ‘‘require the State to 

revise the [SIP] as necessary to correct 

such inadequacies.’’ This type of action 

is commonly referred to as a ‘‘SIP call.’’ 

CAA section 110(k)(5) expressly directs 

EPA to take action if the SIP provision 

is substantially inadequate not just for 

purposes of attainment or maintenance 

of the NAAQS, but also for purposes of 

meeting ‘‘any requirement’’ of the CAA. 

In particular, EPA notes that section 

110(k)(5) authorizes the agency to make 

such a finding and issue a SIP call 

‘‘whenever’’ it determines a state’s SIP 

to be substantially inadequate, and thus 

EPA has authority to propose such a 

finding and issue in SIP call 

prospectively in the event that it 

finalizes the limited approval and 

limited disapproval contemplated in 

this proposal. If our limited approval 

and limited disapproval is finalized, at 

that time the state’s SIP will be 

substantially inadequate due to the SIP 

provisions concerning affirmative 

defenses for startup and shutdown 

events. 

As stated in Section II(C) above, the 

EPA interprets the CAA to allow only 

narrowly drawn affirmative defense 

provisions that are available for events 

that are entirely beyond the control of 

the owner or operator of the source. 

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 the 

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 

the control of the source. 


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Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules 54825 

10Nothing in today’s rulemaking action for 

Oklahoma should be construed or interpreted as a 

re-opening of the public comment period for EPA’s 

February 22, 2013 (78 FR 12460) Proposed Findings 

of Substantial Inadequacy and SIP Calls, or any 

issues associated with that separate rulemaking 

action. 

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. The source 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 the source 

cannot meet the otherwise applicable 

emission limitations in the SIP. 

Even if a source is a suitable 

candidate for alternative SIP emission 

limitations during startup and 

shutdown, however, that does not 

justify the creation of an affirmative 

defense in the case of excess emissions 

during such events. Because these 

events are planned, the 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 the source should have 

been expected to comply is tantamount 

to providing relief from civil penalties 

for a planned violation. 

EPA believes that adoption of 

affirmative defense provisions that 

include periods of normal source 

operation that are within the control of 

the owner or operator of the source, 

such as planned startup and shutdown, 

would be 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 section 252:100–9– 

8(a) of the 2010 Subchapter 9 provisions 

and the associated affirmative defense 

criteria for excess emissions during 

startup and shutdown as set forth in 

section 252:100–9–8(c) of the 2010 

Subchapter 9 provisions are 

substantially inadequate to meet CAA 

requirements for the reasons stated 

above. In addition, section 252:100–9–1 

of the 2010 Subchapter 9 provisions 

includes as a purpose of the 2010 

Subchapter 9 provisions the 

establishment of affirmative defense 

provisions for excess emissions, without 

limiting the reference to affirmative 

defenses to excess emissions during 

malfunctions. 

Accordingly, EPA is also proposing to 

find that section 252:100–9–1 of the 

2010 Subchapter 9 provisions is 

substantially inadequate to meet the 

CAA requirements for the reasons 

discussed above. Therefore, all three 

provisions identified in Table 3 

(sections 252:100–9–1, 252:100–9–8(a), 

and 252:100–9–8(c)) are the basis for the 

proposed finding of substantial 

inadequacy and the proposed SIP call. 

Because those subsections are 

intertwined with the remainder of the 

section 252:100–9–8, the proposed 

limited approval and limited 

disapproval as well as the proposed 

finding of substantial inadequacy and 

proposed SIP call encompass all of 

252:100–9–8 and 252:100–9–1, as 

discussed above. 

In addition to providing general 

authority for a SIP call, CAA section 

110(k)(5) sets forth the process and 

timing for such an action. First, the 

statute requires the EPA to notify the 

state of the final finding of substantial 

inadequacy. Second, the statute requires 

the EPA to establish ‘‘reasonable 

deadlines (not to exceed 18 months after 

the date of such notice)’’ for the state to 

submit a corrective SIP submission to 

eliminate the inadequacy in response to 

the SIP call. 42 U.S.C. 7410(k)(5). Third, 

the statute requires that any finding of 

substantial inadequacy and notice to the 

state be made public. 

If EPA finalizes the proposed finding 

of substantial inadequacy and proposed 

SIP call for the 2010 Subchapter 9 

provisions identified in Table 3 above, 

CAA section 110(k)(5) requires EPA to 

establish a SIP submission deadline by 

which Oklahoma must make a SIP 

submission to rectify the identified 

deficiencies. EPA is proposing that if it 

promulgates a final finding of 

substantial inadequacy and a SIP call for 

those 2010 Subchapter 9 provisions 

identified in Table 3 above, then EPA 

will establish a date no more than 18 

months from the date of promulgation of 

the final finding for Oklahoma to 

respond to the SIP call. For consistency 

with EPA’s February 22, 2013 Proposed 

SSM SIP Calls, under which section 

252:100–9–3 of the currently EPAapproved Oklahoma SIP is already 

subject to a proposed SIP call (78 FR 

12523), we are here proposing that 

Oklahoma revise the identified sections 

of the 2010 Subchapter 9 provisions 

(section 252:100–9–1 and sections 

252:100–9–8(a) and (c)) and submit a 

revision of those provisions consistent 

with CAA requirements along with the 

remainder of section 252:100–9–8, 

addressing the deficiencies identified in 

this proposal to EPA. This submittal 

date will be due no later than the earlier 

of the statutory maximum of eighteen 

months, or the due date by which areas 

subject EPA’s February 22, 2013 

Proposed SSM SIP Calls are required to 

revise and submit their SIPs to EPA.10

Given that affirmative defenses for 

excess emissions are not required 

elements under the Act, today’s 

proposed SIP call will not, by itself, 

trigger a sanction clock for Oklahoma. 

If the state fails to submit the 

corrective SIP revision by the deadline 

that the EPA finalizes as part of the SIP 

call proposed in this action, then CAA 

section 110(k)(1)(B) authorizes EPA to 

find that the State has failed to make a 

complete submission, in whole or in 

part. Once EPA makes such a finding of 

failure to submit for a required SIP 

submission, CAA section 110(c)(1) 

requires EPA to ‘‘promulgate a Federal 

implementation plan at any time within 

2 years after the [finding] . . . unless 

the State corrects the deficiency, and 

[the EPA] approves the plan or plan 

revision, before [the EPA] promulgates 

such [FIP].’’ Thus, if the EPA finalizes 

the proposed SIP call in this action and 

then finds that Oklahoma failed to 

submit a complete SIP revision that 

responds to the SIP call, or if EPA 

disapproves such SIP revision, then the 

EPA will have an obligation under CAA 

section 110(c)(1) to promulgate a FIP to 

address the identified SIP deficiency, no 

later than two years from the date of the 

finding or the disapproval, if the 

deficiency has not been corrected before 

that time. 

III. Proposed Action 

Today, we are proposing full approval 

of the following provisions of Title 252, 

Chapter 100, Subchapter 9, Excess 

Emission Reporting Requirements as 

submitted on July 16, 2010, into the 

Oklahoma SIP: 

Section 252:100–9–1.1 Applicability, 

Section 252:100–9–2 Definitions, 

Section 252:100–9–7(a) Immediate 

notice, 

Section 252:100–9–7(b) Excess emission 

event report, 

Section 252:100–9–7(c) Ongoing events, 

Section 252:100–9–7(d) Alternative 

reporting, and 

Section 252:100–9–7(e) Certificate of 

truth, accuracy and completeness 

required. 


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54826 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules 

11Small 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. 

We are proposing to delete the 

following provisions of Title 252, 

Chapter 100, Subchapter 9 from the 

currently EPA-approved Oklahoma SIP: 

Section 252:100–9–1 Purpose, 

Section 252:100–9–2 Definitions, 

Section 252:100–9–3 General reporting 

requirements, 

Section 252:100–9–4 Maintenance 

procedures, 

Section 252:100–9–5 Malfunctions and 

releases, and 

Section 252:100–9–6 Excesses resulting 

from engineering limitations. 

We are proposing a concurrent 

limited approval and limited 

disapproval of the following provisions 

of Title 252, Chapter 100, Subchapter 9 

Excess Emission Reporting 

Requirements as submitted on July 16, 

2010, into the Oklahoma SIP: 

Section 252:100–9–1 Purpose, and 

Section 252:100–9–8 Affirmative 

defenses. 

We are also proposing a finding of 

substantial inadequacy and a SIP call of 

the provisions listed above for the 

proposed concurrent limited approval 

and limited disapproval, and note the 

following provisions of Title 252, 

Chapter 100, Subchapter 9, Excess 

Emission Reporting Requirements as 

submitted on July 16, 2010, as the basis 

for the proposed finding of substantial 

inadequacy and proposed SIP call: 

Section 252:100–9–1 Purpose, 

Section 252:100–9–8(a) General, and 

Section 252:100–9–8(c) Affirmative 

defenses for excess emissions during 

startup and shutdown. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to act on state 

law and ensure that it meets Federal 

requirements; such review does not 

impose additional requirements beyond 

those imposed by state law. 

Additionally, under the Clean Air Act, 

a finding of substantial inadequacy and 

the subsequent obligation for a state to 

revise its SIP arise out of CAA sections 

110(a) and 110(k)(5). The finding and 

state obligation do not directly impose 

any new regulatory requirements. In 

addition, the state obligation is not 

legally enforceable by a court of law. 

EPA will review its intended action on 

any SIP submittal in response to the 

finding in light of applicable statutory 

and Executive Order requirements, in 

any subsequent rulemaking acting on 

such SIP submittal. 

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 under Executive Order 12866 

(58 FR 51735, October 4, 1993) and is 

therefore not subject to review under 

Executive Orders 12866 and 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 

section 110 of the CAA will not in-andof itself create any new information 

collection burdens but simply approves 

or disapproves certain State 

requirements for inclusion into the SIP. 

The proposal to issue the SIP call only 

proposes an action that requires the 

state to revise its SIP to comply with 

existing requirements of the CAA. 

Burden is defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

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.11 This 

proposed action will not have a 

significant impact on a substantial 

number of small entities because SIP 

approvals and limited approvals/limited 

disapprovals under section 110 of the 

Clean Air Act do not create any new 

requirements but simply approve 

requirements that the State is already 

imposing. The proposed SIP call is only 

an action that requires the state to revise 

its SIP to comply with existing 

requirements of the CAA. The EPA’s 

action, therefore, would leave to the 

state the choice of how to revise the SIP 

provision in question to make it 

consistent with CAA requirements. 

Therefore, I certify that this action will 

not have a significant economic impact 

on a substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). Moreover, due to the 

nature of the Federal-State relationship 

under the Clean Air Act, preparation of 

flexibility analysis would constitute 

Federal inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of 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. The 

EPA has determined that the limited 

approval/limited disapproval proposal 

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 approve or 

disapprove pre-existing requirements 

under State or local law, and imposes 

no new requirements. The proposed SIP 

Call may impose a duty on the state to 

meet its existing obligations to revise its 

SIP to comply with CAA requirements. 

The direct costs of this action, if 

finalized, would be those associated 

with preparation and submission of a 

SIP revision. Examples of such costs 

could include development of a state 

rule, conducting notice and public 

hearing, and other costs incurred in 

connection with a SIP submission. 

These aggregate costs would be far less 

than the $100-million threshold in any 

one year for the state. Thus, this 

proposed rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

In addition since the only regulatory 

requirements of this proposed action 

would apply solely to the State of 

Oklahoma, this action is not subject to 

the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the 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 


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Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules 54827 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order 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 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). 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 

Executive Order 13132, because it 

merely approves or 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. 

The proposed SIP call is required by the 

CAA because the EPA is proposing to 

find that the current SIP of the State is 

substantially inadequate to meet 

fundamental CAA requirements. In 

addition, the effects on the State will 

not be substantial because the SIP call 

will require the State to submit only 

those revisions necessary to address the 

SIP deficiencies and applicable CAA 

requirements. While this action may 

impose direct effects on the State, the 

expenditures would not be substantial 

because they would be far less than $25 

million in the aggregate in any one year. 

Thus, Executive Order 13132 does not 

apply to this action. 

E. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). In this action, the EPA is not 

addressing any tribal implementation 

plans. This action is limited to the State 

of Oklahoma, and the SIP provisions 

which are the subject of the proposed 

actions do not apply to sources of 

emissions located in Indian country. 

Thus, Executive Order 13175 does not 

apply to this action. However, the EPA 

invites comment on this proposed rule 

from tribal officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

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 the Executive 

Order has the potential to influence the 

regulation. This proposed action is not 

subject to Executive Order 13045 

because it is not an economically 

significant regulatory action based on 

health or safety risks subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). This proposed action 

under section 110 of the CAA will not 

in and of itself create any new 

regulations but simply approves or 

disapproves certain State requirements 

for inclusion into the SIP. The proposed 

SIP Call is not subject to EO 13045 

because it would not establish an 

environmental standard, but instead 

would require Oklahoma to revise a 

state rule to address requirements of the 

CAA. Therefore the proposed action is 

not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997). 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 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 action merely prescribes the EPA’s 

action for the State regarding its 

obligations for SIP under the CAA. 

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 the 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 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

the EPA to provide Congress, through 

OMB, explanations when the Agency 

decides not to use available and 

applicable voluntary consensus 

standards. 

The EPA believes that this proposed 

action is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

the 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 

Executive Order 12898 (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. 

The EPA lacks the discretionary 

authority to address environmental 

justice in this proposed action. In 

reviewing SIP submissions, the EPA’s 

role is to approve or disapprove state 

choices, based on the criteria of the 

CAA. Accordingly, this action merely 

proposes to approve or disapprove 

certain State requirements for inclusion 

into the SIP under section 110 of the 

CAA and will not in and of itself create 

any new requirements. The proposed 

action increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. The 

proposed action is intended to ensure 

that all communities and populations 

across the State, including minority, 

low-income and indigenous populations 

overburdened by pollution, receive the 

full human health and environmental 

protection provided by the CAA. This 

proposed action concerns the State’s 

obligations regarding the treatment they 

give, in rules included in its SIP under 

the CAA, to excess emissions during 

startup, shutdown, and malfunctions. 

This proposed action would require 

Oklahoma to bring its treatment of these 

emissions into line with CAA 

requirements, which would lead to 

sources having greater incentives to 

control emissions during such events. 

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. 


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54828 Federal Register / Vol. 78, No. 173 / Friday, September 6, 2013 / Proposed Rules 

Dated: August 28, 2013. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2013–21777 Filed 9–5–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2011–0728; FRL–9900–65– 

Region 8] 

Promulgation of State Implementation 

Plan Revisions; Infrastructure 

Requirements for the 1997 and 2006 

PM2.5 National Ambient Air Quality 

Standards; Prevention of Significant 

Deterioration; Wyoming 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to partially 

approve and partially disapprove State 

Implementation Plan (SIP) submissions 

from the State of Wyoming to 

demonstrate that the SIP meets the 

infrastructure requirements of the Clean 

Air Act (CAA) for the National Ambient 

Air Quality Standards (NAAQS) 

promulgated for particulate matter less 

than or equal to 2.5 micrometers (mm) in 

diameter (PM2.5) on July 18, 1997 and on 

October 17, 2006. The CAA requires that 

each state, after a new or revised 

NAAQS is promulgated, review their 

SIP to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’ necessary to implement the 

new or revised NAAQS. Wyoming 

provided infrastructure submissions for 

the 1997 and 2006 PM2.5 NAAQS on 

March 26, 2008 and August 19, 2011, 

respectively. EPA does not propose to 

act on certain portions of the 

submissions for the 2006 PM2.5 NAAQS 

that are intended to meet requirements 

related to interstate transport of air 

pollution. EPA will act on the 

remainder of the submissions in a 

separate action. 

DATES: Written comments must be 

received on or before September 27, 

2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2011–0728, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: ayala.kathy@epa.gov 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Director, Air Program, 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 

• Hand Delivery: Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mail Code 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. Such deliveries 

are only accepted Monday through 

Friday, 8:00 a.m. to 4:30 p.m., excluding 

federal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2011– 

0728. EPA’s policy is that all comments 

received 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 information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA, without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. 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. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to section I, 

General Information, of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8:00 a.m. to 4:00 p.m., excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kathy Ayala, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–6142, 

ayala.kathy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we are 

giving meaning to certain words or initials as 

follows: 

(i) The words or initials Act or CAA mean 

or refer to the Clean Air Act, unless the 

context indicates otherwise. 

(ii) The initials CBI mean or refer to 

confidential business information. 

(iii) The words EPA, we, us or our mean 

or refer to the United States Environmental 

Protection Agency. 

(iv) The initials FIP mean or refer to a 

Federal Implementation Plan. 

(v) The initials GHG mean or refer to 

greenhouse gases. 

(vi) The initials NAAQS mean or refer to 

national ambient air quality standards. 

(vii) The initials NOX mean or refer to 

nitrogen oxides. 

(viii) The initials NSR mean or refer to new 

source review. 

(ix) The initials PM mean or refer to 

particulate matter. 

(x) The initials PM2.5 mean or refer to 

particulate matter with an aerodynamic 

diameter of less than 2.5 micrometers (fine 

particulate matter). 

(xi) The initials ppm mean or refer to parts 

per million. 

(xii) The initials PSD mean or refer to 

Prevention of Significant Deterioration. 

(xiii) The initials SIP mean or refer to State 

Implementation Plan. 

(xiv) The initials SSM mean or refer to 

start-up, shutdown, or malfunction. 

(xv) The initials WAQSR mean or refer to 

the Wyoming Air Quality Standards and 

Regulation. 

Table of Contents 

I. General Information 

II. Background 

III. What is the scope of this rulemaking? 

IV. What infrastructure elements are required 

under sections 110(a)(1) and (2)? 


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