[Federal Register Volume 88, Number 230 (Friday, December 1, 2023)]
[Proposed Rules]
[Pages 83889-83893]
[FR Doc No: 2023-26119]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-OAR-2023-0406; FRL-10652-01-OAR]
RIN 2060-AV97

Removal of Affirmative Defense Provisions From the National
Emission Standards for Hazardous Air Pollutants for the Oil and Natural
Gas Production Facility and Natural Gas Transmission and Storage
Facility Source Categories

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing amendments to the National Emission
Standards for Hazardous Air Pollutants for the oil and gas industry
issued under the Clean Air Act. Specifically, the EPA is proposing to
remove the affirmative defense provisions of the National Emission
Standards for Hazardous Air Pollutants for both the Oil and Natural Gas
Production source category and the Natural Gas Transmission and Storage
source category.

DATES:
    Comments. Comments must be received on or before January 16, 2024.
    Public hearing: If anyone contacts us requesting a public hearing
on or before December 6, 2023, we will hold a virtual public hearing.
See SUPPLEMENTARY INFORMATION for information on requesting and
registering for a public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2023-0406, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2023-0406 in the subject line of the message.
     Fax:<PHONE_NUMBER>. Attention Docket ID No. EPA-HQ-OAR-
2023-0406.
     Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2023-0406, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand/Courier Delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal holidays).
    Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact U.S. EPA, Attn. Matthew Witosky, Mail Drop: E143-05,
109 T.W. Alexander Drive, P.O. Box 12055, RTP, North Carolina 27711;
telephone number:<PHONE_NUMBER>; and email address:
[email protected].

SUPPLEMENTARY INFORMATION:
    Participation in virtual public hearing. To request a virtual
public hearing, contact the public hearing team at<PHONE_NUMBER> or by
email at [email protected]. If requested, the hearing will be
held via virtual platform on December 18, 2023. The hearing will
convene at 11 a.m. Eastern Time (ET) and will conclude at 3 p.m. ET.
The EPA may close a session 15 minutes after the last pre-registered
speaker has testified if there are no additional speakers. The EPA will
announce further details at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry/actions-and-notices-about-oil-and-natural#neshap.
    If a public hearing is requested, the EPA will begin pre-
registering speakers for the hearing no later than 1 business day after
a request has been received. To register to speak at the virtual
hearing, please use the online registration form available at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry/actions-and-notices-about-oil-and-natural#neshap or contact the public
hearing team at<PHONE_NUMBER> or by email at
[email protected]. The last day to pre-register to speak at the
hearing will be December 13, 2023. Prior to the hearing, the EPA will
post a general agenda that will list pre-registered speakers at:
https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry/actions-and-notices-about-oil-and-natural#neshap.
    The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
    Each commenter will have 4 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) by emailing it to
[email protected]. The EPA also recommends submitting the text of
your oral testimony as written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry/actions-and-notices-about-oil-and-natural#regactions. While the EPA expects the hearing to go forward as
set forth above, please monitor our website or contact the public
hearing team at<PHONE_NUMBER> or by email at [email protected]
to determine if there are any updates. The EPA does not intend to
publish a document in the Federal Register announcing updates.
    If you require the services of a translator or special
accommodation such as audio description, please pre-register for the
hearing with the public hearing team and describe your needs by
December 8, 2023. The EPA may not be able to arrange accommodations
without advanced notice.
    Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2023-0406. All documents in the docket are
listed in https://www.regulations.gov/. Although listed, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.

Certain other material, such as copyrighted material, is not placed on
the internet and will be publicly available only in hard copy. With the
exception of such material, publicly available docket materials are
available electronically in Regulations.gov.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2023-0406. 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 https://www.regulations.gov/, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute. Do not submit electronically to https://www.regulations.gov/
any information that you consider to be CBI or other information whose
disclosure is restricted by statute. This type of information should be
submitted as discussed below.
    The EPA may publish any comment received to its public docket.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The https://www.regulations.gov/ website allows you to submit your
comment anonymously, which means the 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 the EPA without going through
https://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, the EPA recommends that you include your name and
other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should not include special characters or any form of encryption and be
free of any defects or viruses. For additional information about the
EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.
    Submitting CBI. Do not submit information containing CBI to the EPA
through https://www.regulations.gov/. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, note the docket ID,
mark the outside of the digital storage media as CBI, and identify
electronically within the digital storage media the specific
information that is claimed as CBI. In addition to one complete version
of the comments that includes information claimed as CBI, you must
submit a copy of the comments that does not contain the information
claimed as CBI directly to the public docket through the procedures
outlined in Instructions above. If you submit any digital storage media
that does not contain CBI, mark the outside of the digital storage
media clearly that it does not contain CBI and note the docket ID.
Information not marked as CBI will be included in the public docket and
the EPA's electronic public docket without prior notice. Information
marked as CBI will not be disclosed except in accordance with
procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
    Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
Office of Air Quality Planning and Standards (OAQPS) CBI Office at the
email address [email protected], and as described above, should include
clear CBI markings and note the docket ID. If assistance is needed with
submitting large electronic files that exceed the file size limit for
email attachments, and if you do not have your own file sharing
service, please email [email protected] to request a file transfer link.
If sending CBI information through the postal service, please send it
to the following address: OAQPS Document Control Officer (C404-02),
OAQPS, U.S. Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2023-0406. The
mailed CBI material should be double wrapped and clearly marked. Any
CBI markings should not show through the outer envelope.
    Organization of this document. The information in this preamble is
organized as follows:

I. General Information
    A. Does this action apply to me?
II. Proposed Rule Summary and Rationale
III. Summary of Cost, Environmental, and Economic Impacts
    A. What are the affected sources?
    B. What are the air quality impacts?
    C. What are the cost impacts?
    D. What are the economic impacts?
    E. What are the benefits?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing our Nation's
Commitment to Environmental Justice for All

I. General Information

A. Does this action apply to me?

    Categories and entities potentially regulated by this action are
shown in table 1 of this preamble.

    Table 1--NESHAP and Industrial Source Categories Affected by This
                             Proposed Action
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        Source category               NAICS           NAICS code \1\
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Industry.......................          211111  Crude Petroleum and
                                                  Natural Gas
                                                  Extraction.
                                         211112  Natural Gas Liquid
                                                  Extraction.
                                         221210  Natural Gas
                                                  Distribution.
                                         486110  Pipeline Distribution
                                                  of Crude Oil.
                                         486210  Pipeline Transportation
                                                  of Natural Gas.

Federal Government.............  ..............  Not affected.
State/Local/Tribal Government..  ..............  Not affected.
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\1\ North American Industry Classification System (NAICS).

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. To determine whether your facility would be regulated by this
action, you should examine the applicability criteria in the
regulations. If you have any questions regarding the applicability of
this action to a particular entity, contact the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.

II. Proposed Rule Summary and Rationale

    In 1998 the EPA promulgated National Emission Standards for
Hazardous Air Pollutants (NESHAP) for the Oil and Natural Gas
Production Facility and Natural Gas Transmission and Storage Facility
Source Categories, 40 CFR part 63, subparts HH and HHH. 64 FR 32610
(June 17, 1999) (``Oil and Gas NESHAP''). In 2012, the EPA amended the
Oil and Gas NESHAP. 77 FR 49490 (August 16, 2012). The 2012 amendments
included provisions allowing owners and operators to assert an
affirmative defense to civil penalties for violations caused by
malfunctions. See 40 CFR 63.762 and 63.1672. Malfunctions are a sudden,
infrequent, and not reasonably preventable failure of air pollution
control and monitoring equipment, process equipment, or a process to
operate in a normal or usual manner. See 40 CFR 63.2. As defined in 40
CFR part 63, subparts HH and HHH, ``affirmative defense'' means, ``in
the context of an enforcement proceeding, a response or defense put
forward by a defendant, regarding which the defendant has the burden of
proof, and the merits of which are independently and objectively
evaluated in a judicial or administrative proceeding.'' See 40 CFR
63.761 and 63.1271. The EPA established an affirmative defense in 40
CFR part 63, subparts HH and HHH in an effort to create a system that
incorporates some flexibility, recognizing that there is a tension,
inherent in many types of air regulations, to ensure adequate
compliance while simultaneously recognizing that despite the most
diligent of efforts, emission standards may be violated under
circumstances entirely beyond the control of the source (77 FR 49508).
    Although the EPA recognized at the time that its case-by-case
enforcement discretion provides sufficient flexibility in these
circumstances, it included the affirmative defense to provide a more
formalized approach and more regulatory clarity. Id. at 49508-9. See
also, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (D.C. Cir.
1978) (holding that an informal case-by-case enforcement discretion
approach is adequate); but see Marathon Oil Co. v. EPA, 564 F.2d 1253,
1272-73 (9th Cir. 1977) (requiring a more formalized approach to
consideration of ``upsets beyond the control of the permit holder'').
Under the EPA's regulatory affirmative defense provisions, if a source
could demonstrate in a judicial or administrative proceeding that it
had met the requirements of the affirmative defense in the regulation,
civil penalties would not be assessed.
    In 2014, the United States Court of Appeals for the District of
Columbia Circuit (D.C. Circuit Court) vacated the affirmative defense
in one of the EPA's CAA section 112 regulations. Natural Resource
Defense Council (NRDC) v. EPA, 749 F.3d 1055 (D.C. Cir., 2014)
(vacating affirmative defense provisions in CAA section 112 rule
establishing emission standards for Portland cement kilns) (NRDC). The
court found that the EPA lacked authority to establish an affirmative
defense for private civil suits and held that under the CAA, the
authority to determine civil penalty amounts in such cases lies
exclusively with the courts, not the EPA. Specifically, the court
found: ``As the language of the statute makes clear, the courts
determine, on a case-by-case basis, whether civil penalties are
`appropriate.' '' Id. at 1063 (``[U]nder this statute, deciding whether
penalties are `appropriate' in a given private civil suit is a job for
the courts, not EPA.'').\1\
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    \1\ The court's reasoning in NRDC focuses on civil judicial
actions. The court noted that ``EPA's ability to determine whether
penalties should be assessed for CAA violations extends only to
administrative penalties, not to civil penalties imposed by a
court.'' Id.
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    In light of the NRDC decision mentioned above, the EPA is proposing
to remove the affirmative defense provisions from the Oil and Gas
NESHAP. These provisions imply legal authority that the D.C. Circuit
Court has stated that the EPA does not have.\2\ As explained above, if
a source is unable to comply with emissions standards as a result of a
malfunction, the EPA may use its case-by-case enforcement discretion to
provide flexibility, as appropriate. Further, as the D.C. Circuit
recognized, in a citizen enforcement action brought under CAA section
304(a), the court has the discretion to consider any defense raised and
determine whether penalties are appropriate. Cf. NRDC, 749 F.3d at 1064
(arguments that violation was caused by unavoidable technology failure
can be made to the courts in future civil cases when the issue arises).
The same is true for the presiding officer in EPA administrative
enforcement actions.\3\
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    \2\ The EPA notes that in 2012, concurrent with the review of 40
CFR part 63, subparts HH and HHH, the EPA promulgated New Source
Performance Standards for Crude Oil and Natural Gas Facilities, 40
CFR part 60, subpart OOOO (``NSPS OOOO''), which also included an
affirmative defense. See 77 FR 49557. In a subsequent rulemaking
following the NRDC decision, the EPA removed the affirmative defense
provision from NSPS OOOO. 79 FR 79018 (Dec. 31, 2014).
    \3\ Although the NRDC case does not address the EPA's authority
to establish an affirmative defense to penalties that are available
in administrative enforcement actions, we are not including such an
affirmative defense in the proposed rule. As explained above, such
an affirmative defense is not necessary. Moreover, assessment of
penalties for violations caused by malfunctions in administrative
proceedings and judicial proceedings should be consistent. Cf. CAA
section 113(e) (requiring both the Administrator and the court to
take specified criteria into account when assessing penalties).
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III. Summary of Cost, Environmental, and Economic Impacts

A. What are the affected sources?

    Sources subject to subparts HH and HHH under 40 CFR part 63 of the
CAA as amended in 1990, section 112.

B. What are the air quality impacts?

    There are no air quality impacts associated with this action. The
affirmative defense provisions did not affect the stringency of the
standards in 40 CFR part 63, subparts HH or HHH. The removal of the
provisions does not have a material impact on the obligation for
sources to comply with current existing standards, or the ability of
Federal or State agencies to enforce standards.

C. What are the cost impacts?

    There are no cost impacts associated with this action. The
affirmative defense provisions did not affect the stringency of the
standards in 40 CFR part 63, subparts HH or HHH. The removal of the
provisions does not have a material impact on the obligation for
sources to comply with current existing standards, or the ability of
Federal or State agencies to enforce standards. The EPA estimated a
small administrative burden to report deviations from standards as a
result of malfunctions that included the option for an owner or
operator to offer an affirmative defense. The removal of the
affirmative defense provisions does not affect that burden because
sources will still be required to report malfunctions that result in a
failure to meet the standards. Since the option to invoke an
affirmative defense was voluntary, there may be a negligible cost
savings for reporting malfunctions by removing these provisions.

D. What are the economic impacts?

    There are no economic impacts associated with this action. The
affirmative defense provisions did not affect the stringency of the
standards in 40 CFR part 63, subparts HH or HHH. The removal of the
provisions does not have a material impact on the obligation for
sources to comply with current existing standards, or the ability of
Federal or State agencies to enforce standards. The EPA estimated a
small administrative burden to report deviations from standards as a
result of malfunctions that included the option for an owner or
operator to offer an affirmative defense. The removal of the
affirmative defense provisions does not affect that burden because
sources will still be required to report malfunctions that could have
resulted in a failure to meet the standards. Since the option to invoke
an affirmative defense was voluntary, there may be a negligible cost
savings for reporting malfunctions by removing these provisions.

E. What are the benefits?

    There are no environmental benefits associated with this action.
The affirmative defense provisions did not affect the stringency of the
standards in 40 CFR part 63, subparts HH or HHH. The removal of the
provisions does not have a material impact on the obligation for
sources to comply with current existing standards, or the ability of
Federal or State agencies to enforce standards.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for review under Executive Order
12866.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2060-0417. The removal of provisions for affirmative
defense does not change any mandatory recordkeeping, reporting, or
other activity previously established under prior final rules.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. There
are no economic impacts associated with this action. The affirmative
defense provisions did not affect the stringency of the standards in 40
CFR part 63, subparts HH or HHH. The removal of the provisions does not
have a material impact on the obligation for sources to comply with
current existing standards, or the ability of Federal or State agencies
to enforce standards.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any State,
local or Tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have Tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
Tribal governments, on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. Therefore, this action is not
subject to Executive Order 13045 because it does not concern an
environmental health risk or safety risk. Since this action does not
concern human health, the EPA's Policy on Children's Health also does
not apply.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing our Nation's Commitment to
Environmental Justice for All

    The EPA believes that this action does not concern human health or
environmental conditions and therefore cannot be evaluated with respect
to potentially disproportionate and adverse effects on people of color,
low-income populations and/or Indigenous peoples. The removal of the
provisions does not have a material impact on the obligation for
sources to comply with current existing standards, or the ability of
Federal or State agencies to enforce standards.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, the Environmental
Protection Agency (EPA) proposes to amend title 40, chapter I, of the
Code of Federal Regulations (CFR) as follows:

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart HH--National Emission Standards for Hazardous Air
Pollutants From Oil and Natural Gas Production Facilities

0
2. Section 63.760 is amended by adding paragraph (i) to read as
follows:

Sec.  63.760  Applicability and designation of affected source.

* * * * *
    (i) Emissions standards in this subpart apply at all times.

Sec.  63.761  [Amended]

0
3. Section 63.761 is amended by removing the definition ``Affirmative
defense''.

Sec.  63.762  [Removed and Reserved]

0
4. Section 63.762 is removed and reserved.

Subpart HHH--National Emission Standards for Hazardous Air
Pollutants From Natural Gas Transmission and Storage Facilities

0
5. Section 63.1270 is amended by adding paragraph (g) to read as
follows:

Sec.  63.1270  Applicability and designation of affected source.

* * * * *
    (g) Emissions standards in this subpart apply at all times.

Sec.  63.1271  [Amended]

0
6. Section 63.1271 is amended by removing the definition ``Affirmative
defense''.

Sec.  63.1272  [Removed and Reserved]

0
7. Section 63.1272 is removed and reserved.

[FR Doc. 2023-26119 Filed 11-30-23; 8:45 am]
BILLING CODE 6560-50-P