[Federal Register Volume 78, Number 173 (Friday, September 6, 2013)]
[Proposed Rules]
[Pages 54816-54828]
[FR Doc No: 2013-21777]

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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.

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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<EMAIL_ADDRESS>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<PHONE_NUMBER>.
     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

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<PHONE_NUMBER>, fax
(214) 665-7263, email address<EMAIL_ADDRESS>
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. Sec.  1151.\1\ We are proposing three related actions in this
rulemaking.
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    \1\ Oklahoma'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).
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    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

Subchapter 9 provisions which EPA is proposing for approval into the
Oklahoma SIP.
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    \2\ Throughout 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.

   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  Propose approval.
                                 report.
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,  Propose approval.
                                 accuracy and
                                 completeness
                                 required.
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    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-- Propose limited
                                 General.               approval and
                                                        limited
                                                        disapproval.
252:100-9-8(b)................  Affirmative defenses   Propose limited
                                 for excess emissions   approval and
                                 during malfunctions.   limited
                                                        disapproval.
252:100-9-8(c)................  Affirmative defenses   Propose limited
                                 for excess emissions   approval and
                                 during startup and     limited
                                 shutdown.              disapproval.
252:100-9-8(d)................  Affirmative defenses   Propose limited
                                 prohibited.            approval and
                                                        limited
                                                        disapproval.
252:100-9-8(e)................  Affirmative defense    Propose limited
                                 determination.         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 EPA-approved 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.
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    \3\ See, 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).
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    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.

    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-- Provisions also
                                 General.               create an
                                                        affirmative
                                                        defense for
                                                        planned events.
252:100-9-8(c)................  Affirmative defenses   Provisions
                                 for excess emissions   establish
                                 during startup and     criteria for
                                 shutdown.              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 federally-approved 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

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 Sec.  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

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.
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    \4\ See, e.g., Essex Chemical v. Ruckelshaus, 486 F.2d 427, 433
(D.C. Cir. 1973); and Portland Cement Association v. Ruckelshaus,
486 F.2d 375 (D.C. Cir. 1973)
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    In addressing excess emissions due to sudden and unavoidable
malfunctions, 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.
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    \5\ See, 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).
---------------------------------------------------------------------------

    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
EPA-approved 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

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.
---------------------------------------------------------------------------

    \6\ See 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).
---------------------------------------------------------------------------

    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 EPA-approved 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

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.
---------------------------------------------------------------------------

    \7\ EPA notes that a state can elect to adopt alternative
emission limitations that apply to normal modes of source operation,
such as startup and shutdown, so long as these provisions are
consistent with CAA requirements. EPA's February 22, 2013 Proposed
SSM SIP Calls also provides guidance on how such SIP provisions may
be developed to meet CAA requirements.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \8\ See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036-37
(7th Cir. 1984); see also 1992 Calcagni Memo at 2.
---------------------------------------------------------------------------

    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

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.
---------------------------------------------------------------------------

    \9\ We 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.
---------------------------------------------------------------------------

    In summary, EPA believes that the affirmative defense provisions of
section 252:100-9-8, taken as a whole, when compared against the
currently EPA-approved 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.

    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 EPA-approved
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.
---------------------------------------------------------------------------

    \10\ Nothing 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.
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    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.

    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-and-of 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).
---------------------------------------------------------------------------

    \11\ Small entities include small businesses, small
organizations, and small governmental jurisdictions. For purposes of
assessing the impacts of this notice on small entities, small entity
is defined as: (1) A small business that is a small industrial
entity as defined in the U.S. Small Business Administration (SBA)
size standards (see 13 CFR 121.201); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district, or special district with a population of less than 50,000;
or (3) a small organization that is any not-for-profit enterprise
that is independently owned and operated and is not dominant in its
field.
---------------------------------------------------------------------------

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

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.

    Dated: August 28, 2013.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2013-21777 Filed 9-5-13; 8:45 am]
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[Federal Register Volume 84, Number 203 (Monday, October 21, 2019)]
[Rules and Regulations]
[Pages 56112-56113]
[FR Doc No: 2019-22801]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 97

[Docket No. 31276; Amdt. No. 3873]

Standard Instrument Approach Procedures, and Takeoff Minimums and
Obstacle Departure Procedures; Miscellaneous Amendments

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This rule establishes, amends, suspends, or removes Standard
Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums
and Obstacle Departure Procedures (ODPs) for operations at certain
airports. These regulatory actions are needed because of the adoption
of new or revised criteria, or because of changes occurring in the
National Airspace System, such as the commissioning of new navigational
facilities, adding new obstacles, or changing air traffic requirements.
These changes are designed to provide safe and efficient use of the
navigable airspace and to promote safe flight operations under
instrument flight rules at the affected airports.

DATES: This rule is effective October 21, 2019. The compliance date for
each SIAP, associated Takeoff Minimums, and ODP is specified in the
amendatory provisions.
    The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of October 21, 2019.

ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:

For Examination

    1. U.S. Department of Transportation, Docket Ops--M30, 1200 New
Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.
    2. The FAA Air Traffic Organization Service Area in which the
affected airport is located;
    3. The office of Aeronautical Navigation Products, 6500 South
MacArthur Blvd., Oklahoma City, OK 73169 or,
    4. The National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
<EMAIL_ADDRESS>or go to: https://www.archives.gov/federal-register/cfr/ibr-locations.html .

Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free
of charge. Visit the National Flight Data Center at nfdc.faa.gov to
register. Additionally, individual SIAP and Takeoff Minimums and ODP
copies may be obtained from the FAA Air Traffic Organization Service
Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT: Thomas J. Nichols, Flight Procedures
and Airspace Group, Flight Technologies and Procedures Division, Flight
Standards Service, Federal Aviation Administration. Mailing Address:
FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace
Group, 6500 South MacArthur Blvd., Registry Bldg. 29, Room 104,
Oklahoma City, OK 73169. Telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: This rule amends Title 14 of the Code of
Federal Regulations, Part 97 (14 CFR part 97), by establishing,
amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS.
The complete regulatory description of each SIAP and its associated
Takeoff Minimums or ODP for an identified airport is listed on FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA
forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when
required by an entry on 8260-15A.
    The large number of SIAPs, Takeoff Minimums and ODPs, their complex
nature, and the need for a special format make publication in the
Federal Register expensive and impractical. Further, airmen do not use
the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead
refer to their graphic depiction on charts printed by publishers of
aeronautical materials. Thus, the advantages of incorporation by
reference are realized and publication of the complete description of
each SIAP, Takeoff Minimums and ODP listed on FAA form documents is
unnecessary. This amendment provides the affected CFR sections and
specifies the types of SIAPs, Takeoff Minimums and ODPs with their
applicable effective dates. This amendment also identifies the airport
and its location, the procedure, and the amendment number.

Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as
listed in the ADDRESSES section.
    The material incorporated by reference describes SIAPS, Takeoff
Minimums and/or ODPS as identified in the amendatory language for part
97 of this final rule.

The Rule

    This amendment to 14 CFR part 97 is effective upon publication of
each separate SIAP, Takeoff Minimums and ODP as Amended in the
transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments
may have been issued previously by the FAA in a Flight Data Center
(FDC) Notice to Airmen (NOTAM) as an emergency action of immediate
flight safety relating directly to published aeronautical charts.
    The circumstances that created the need for some SIAP and Takeoff
Minimums and ODP amendments may require making them effective in less
than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an
effective date at least 30 days after publication is provided.
    Further, the SIAPs and Takeoff Minimums and ODPs contained in this
amendment are based on the criteria contained in the U.S. Standard for
Terminal Instrument Procedures (TERPS). In developing these SIAPs and
Takeoff Minimums and ODPs, the TERPS criteria were applied to the
conditions existing or anticipated at the affected airports. Because of
the close and immediate relationship between these SIAPs, Takeoff
Minimums and ODPs, and safety in air commerce, I find that notice and
public procedure under 5 U.S.C. 553(b) are impracticable and

contrary to the public interest and, where applicable, under 5 U.S.C
553(d), good cause exists for making some SIAPs effective in less than
30 days.
    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97:

    Air traffic control, Airports, Incorporation by reference,
Navigation (air).

    Issued in Washington, DC, on October 4, 2019.
Rick Domingo,
Executive Director, Flight Standards Service.

Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14,
Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by
establishing, amending, suspending, or removing Standard Instrument
Approach Procedures and/or Takeoff Minimums and Obstacle Departure
Procedures effective at 0901 UTC on the dates specified, as follows:

PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES

0
1. The authority citation for part 97 continues to read as follows:

    Authority:  49 U.S.C. 106(f), 106(g), 40103, 40106, 40113,
40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

0
2. Part 97 is amended to read as follows:

Effective 7 November 2019

Birmingham, AL, Birmingham-Shuttlesworth Intl, RNAV (RNP) Z RWY 6,
Amdt 1
Birmingham, AL, Birmingham-Shuttlesworth Intl, RNAV (RNP) Z RWY 24,
Amdt 3
Gunnison, CO, Gunnison-Crested Butte Rgnl, ILS OR LOC RWY 6, Amdt 5B
St Petersburg-Clearwater, FL, St Petersburg-Clearwater Intl, RNAV
(GPS)-A, Amdt 2A, CANCELLED
Zephyrhills, FL, Zephyrhills Muni, RNAV (GPS) RWY 5, Orig-A
Atlanta, GA, Paulding Northwest Atlanta, RNAV (GPS)-A, Orig-A,
CANCELLED
Augusta, GA, Augusta Rgnl at Bush Field, RNAV (GPS)-A, Orig-A,
CANCELLED
Lawrenceville, GA, Gwinnett County--Briscoe Field, RNAV (GPS)-A,
Orig-B, CANCELLED
New York, NY, John F Kennedy Intl, ILS OR LOC RWY 22L, ILS RWY 22L
(CAT II), ILS RWY 22L (CAT III), Amdt 25
New York, NY, John F Kennedy Intl, ILS OR LOC RWY 22R, Amdt 3
New York, NY, John F Kennedy Intl, RNAV (GPS) Z RWY 13L, Orig

Effective 5 December 2019

Atka, AK, Atka, RNAV (GPS)-A, Orig-A
Egegik, AK, Egegik, RNAV (GPS) RWY 12, Amdt 1B
Egegik, AK, Egegik, RNAV (GPS) RWY 30, Amdt 1B
Gustavus, AK, Gustavus, RNAV (GPS) RWY 29, Amdt 3A
Klawock, AK, Klawock, Takeoff Minimums and Obstacle DP, Amdt 4A
Port Heiden, AK, Port Heiden, ITAWU ONE, Graphic DP
Port Heiden, AK, Port Heiden, NDB/DME RWY 5, Amdt 3, CANCELLED
Port Heiden, AK, Port Heiden, NDB/DME RWY 13, Amdt 3, CANCELLED
Port Heiden, AK, Port Heiden, RNAV (GPS) RWY 6, Amdt 1
Port Heiden, AK, Port Heiden, RNAV (GPS) RWY 14, Amdt 1
Port Heiden, AK, Port Heiden, Takeoff Minimums and Obstacle DP, Amdt
3
Soldotna, AK, Soldotna, RNAV (GPS) RWY 7, Amdt 1A
Window Rock, AZ, Window Rock, RNAV (GPS) RWY 3, Amdt 2
Window Rock, AZ, Window Rock, RNAV (GPS)-B, Amdt 1
Window Rock, AZ, Window Rock, Takeoff Minimums and Obstacle DP, Amdt
2
Window Rock, AZ, Window Rock, VOR-A, Amdt 1
Apple Valley, CA, Apple Valley, RNAV (GPS) RWY 18, Amdt 1
Apple Valley, CA, Apple Valley, RNAV (GPS) Y RWY 18, Amdt 1B,
CANCELLED
Hawthorne, CA, Jack Northrop Field/Hawthorne Muni, RNAV (GPS) RWY
25, Amdt 2
Rio Vista, CA, Rio Vista Muni, Takeoff Minimums and Obstacle DP,
Amdt 2
Plainville, CT, Robertson Field, RNAV (GPS) RWY 2, Amdt 1
Tampa, FL, Tampa Intl, RNAV (GPS) RWY 10, Amdt 2A
Zephyrhills, FL, Zephyrhills Muni, RNAV (GPS) RWY 1, Amdt 1A
Zephyrhills, FL, Zephyrhills Muni, RNAV (GPS) RWY 19, Amdt 1A
Gainesville, GA, Lee Gilmer Memorial, ILS OR LOC RWY 5, Orig-B
LaGrange, GA, LaGrange-Callaway, Takeoff Minimums and Obstacle DP,
Amdt 2
Cambridge, MN, Cambridge Muni, RNAV (GPS) RWY 34, Orig-C
Monticello, MO, Lewis County Rgnl, RNAV (GPS) RWY 18, Orig-D
Hastings, NE, Hastings Muni, RNAV (GPS) RWY 14, Orig-C
Hastings, NE, Hastings Muni, RNAV (GPS) RWY 32, Orig-B
Claremont, NH, Claremont Muni, Takeoff Minimums and Obstacle DP,
Amdt 3
Dayton, OH, James M Cox Dayton Intl, ILS OR LOC RWY 18, Amdt 11
Dayton, OH, James M Cox Dayton Intl, RNAV (GPS) RWY 18, Amdt 2
Henryetta, OK, Henryetta Muni, NDB RWY 36, Amdt 3, CANCELLED
Henryetta, OK, Henryetta Muni, RNAV (GPS) RWY 36, Orig-C
Bridgeport, TX, Bridgeport Muni, RNAV (GPS) RWY 18, Orig-A
Corpus Christi, TX, Corpus Christi Intl, ILS OR LOC RWY 36, Amdt 14A
Corpus Christi, TX, Corpus Christi Intl, VOR OR TACAN RWY 18, Amdt
28C
Dallas-Fort Worth, TX, Dallas-Fort Worth Intl, RNAV (GPS) Y RWY 31R,
Amdt 3A
Rockport, TX, Aransas Co, VOR OR TACAN-A, Amdt 9B
Richmond, VA, Richmond Intl, Takeoff Minimums and Obstacle DP, Amdt
3
Boscobel, WI, Boscobel, RNAV (GPS) RWY 25, Amdt 2
Boscobel, WI, Boscobel, VOR/DME RWY 25, Orig, CANCELLED
Madison, WI, Dane County Rgnl-Truax Field, ILS OR LOC RWY 18, ILS
RWY 18 (SA CAT I), ILS RWY 18 (SA CAT II), Amdt 2A
Prairie Du Sac, WI, Sauk-Prairie, RNAV (GPS) RWY 18, Amdt 1
Prairie Du Sac, WI, Sauk-Prairie, RNAV (GPS) RWY 36, Amdt 1
Reedsburg, WI, Reedsburg Muni, RNAV (GPS) RWY 36, Amdt 1
Reedsburg, WI, Reedsburg Muni, VOR-A, Amdt 6
Richland Center, WI, Richland, RNAV (GPS)-A, Amdt 5

[FR Doc. 2019-22801 Filed 10-18-19; 8:45 am]
 BILLING CODE 4910-13-P