All industrial permits sources were reviewed to insure that appropriate
requirements had been applied and that these requirements constituted
RACT. The following are thirteen sources that had the highest sum of
emissions of combined NOx, SO2, and Particulate. Particulate was used
because PM2.5 emission factors are limited. These sources were reviewed
to verify that the sources were subject to RACT levels of controls.

Industrial emissions were reviewed to see if there was a possibility of
any additional controls that could change the attainment date from the
end of 2009 to the end of 2008. No additional controls were found. Table
15 shows that no possible reductions will result in a 2008 attainment.

Brach’s Confections

Company Number	0300

Full Compliance Evaluation:	April 24 2007.  The source was in
compliance.

Allowable Emissions:	Particulate	46.31 tons per year

			NOx		41 tons per year

			SO2		0.18 tons per year  Natural Gas Combustion only

This source is subject to the following rules.

	1. 40 CFR Part 60 Subpart DC – Standards of Performance for Small
Industrial –

		Commercial-Institutional Steam Generating Units

	2. Particulate	Rule 10

	3. Opacity	Rule 3

	4. Particulate BACT  4-8(e)(2)b

Three boilers on site are fired by natural gas only.

One 21.32 million BTU/hr boiler

One 15.7 million BTU/hr boiler

One 30.1 million BTU per hour boiler

The 15.7 million BTU/hr Boiler is subject to 40CFR Part 60 Subpart
Dc-Standards of Performance for Small
Industrial-Commercial-Institutional Steam Generating Unit.

Process equipment emits 2.5 TPY of particulate at maximum operating
rate. Process emissions are controlled by baghouses.

East Tennessee Natural Gas

Company Number	5340

Full Compliance Evaluation March 29, 2007. The source was in compliance

Emissions	Particulate is 2.24 tons per year.  All particulate is PM2.5.

		Allowable NOx 48.20 Tons per year.

Subject to the following as adopted into the Chattanooga Air Pollution
Control Ordinance

1. 40 CFR Part 60 Subpart GG Standards of Performance for Stationary Gas
Turbines.

2. Chattanooga Air Pollution Control Ordinance Rule 15 Adoption of NSPS

Both turbines burn pipeline natural gas and have been stack tested. The
allowable NOx limit in the NSPS is 150 ppm. The older turbine which was
tested in 1991 demonstrated NOx emissions of 63 ppm or 3.7 lb/hour. The
newer turbine which was tested in 2002 demonstrated NOx emissions of
14.2 ppm or 2.72 lb/hr. If both turbines ran 8760 hours, the potential
emissions would be 28.12 tons per year.

Fuel sulfur has also been demonstrates as 0.02 % which is well below the
NSPS allowable of 0.08%.

Particulate is likely to be overestimated as discussed in the emission
inventory document that said that particulate emissions from combustion
of natural gas are significantly overestimated.

Erlanger Medical Center

Company Number 0150

Full Compliance Evaluation completed on October 23, 2007. The source was
in compliance

Allowable/ Actual Emissions	Particulate 	11.87	 TPY

				NOx		71.92	TPY

				SO2		18.00	 TPY

SO2 is limited by the permit to 500,000 gallons on Number 2 fuel oil
with 0.5% sulfur.

There are 4 permitted boilers that provide steam for a large medical
center. The boilers are fired on natural gas but use Number 2 fuel as a
backup fuel. Depending on steam demand one or two boilers will be
operated at a time.  Though the facility is permitted for Number 2 oil
with 0.5% sulfur oil, the facility used 3600 gallons and the number 2
oil was 0.1865 % Sulfur in the last year.

This source is subject to the following rules.

1.40CFR Part 60 Subpart Dc Small Industrial-Commercial-Institutional
Steam Generating Units

		2. Particulate		Rule 27.3

		3. Opacity		Rule   3  10% Opacity limits

		6. SO2			Rule 13.2  Quarterly Sulfur Reports Required

Erlanger Medical Center

Company Number 0150

Full Compliance Evaluation completed on October 23, 2007. The source was
in compliance

Allowable/ Actual Emissions	Particulate 	11.87	 TPY

				NOx		71.92	TPY

				SO2		18.00	 TPY

SO2 is limited by the permit to 500,000 gallons on Number 2 fuel oil
with 0.5% sulfur.

There are 4 permitted boilers that provide steam for a large medical
center. The boilers are fired on natural gas but use Number 2 fuel as a
backup fuel. Depending on steam demand one or two boilers will be
operated at a time.  Though the facility is permitted for Number 2 oil
with 0.5% sulfur oil, the facility used 3600 gallons and the number 2
oil was 0.1865 % Sulfur in the last year.

This source is subject to the following rules.

1.40CFR Part 60 Subpart Dc Small Industrial-Commercial-Institutional
Steam Generating Units

		2. Particulate		Rule 27.3

		3. Opacity		Rule   3  10% Opacity limits

		6. SO2			Rule 13.2  Quarterly Sulfur Reports Required

Memorial Hospital RACT

Company Number 2010

Full Compliance Evaluation was completed on December 21, 2006. The
source was in compliance.

This permit applies to the three 500 hp Johnson boilers that provide
steam for Memorial hospital. Natural gas is used to fire the boilers
with number 2 fuel oil as a backup fuel in case of natural gas
curtailment. By permit condition, only 2 boilers can be in operation at
a time.

Allowable Emissions	Particulate 	8.20 lb/hr

			NOx		N/A

			SO2		10.15 lb/hr

Actual Emissions	Particulate 	1.235 TPY

			NOx	       	12.57 TPY

			SO2	     	 44.46   TPY

Available Emission Factors show direct PM2.5 as 0.8820 TPY

This source is subject to the following:

40CFR Part 60 Subpart Dc- Standards of Performance for Small
Industrial-Commercial-Institutional Steam Generating Units.

The NSPS limits the sulfur in the fuel oil to 0.5%

		Rule 8.2 limits particulate to 8.2 lb/hr

Rule 13 limits SO2 to 300 ppm.

Rock Tenn Converting Company

Company Number 47-065-3455

Full Compliance Evaluation completed on December 12, 2006. Source was in
compliance

Allowable Emissions	Particulate 	23.074 TPY

			NOx		96.76	TPY

			SO2		349.19 TPY

Allowable emissions are based on 2% sulfur content and 3,500,000 gallons
per year. Actual oil sulfur content is normally considerably less than
2%. Natural gas is the primary fuel and is used when it is available and
is cost competitive.

This source is subject to the following;

40 CFR Part 70 Operating Permit Program

The following local rules;

		1. Particulate	Rule 26.6

		2. Opacity	Rule 3

		3. VOC	Rule 25.3

		4. SO2		4-60(d)(9)

 Actual emissions from the boilers in the last year are as follows

			Particulate 	15.25 TPY

			NOx		73.92 TPY

			SO2	          174.97  TPY

The lower actual emissions occurred because the facility used Number 6
fuel with a sulfur content of 1.61 % for the first 6 months and 0.99%
for the second six months of the year.

This source is a candidate for contingency measures. Specifically, the
oil sulfur limit may be further restricted.

Signal Mountain Cement

Company Number	47-065-3070

Reconstructed  	2001

Full Compliance Evaluation by Chattanooga-Hamilton County APCB November
26, 2006. The source was found to be In Compliance.

Full Compliance Evaluation by Region 4 March 13, 2007 the source was
found to be In Compliance.

Stack Tests

NOx Sept 2001 and Jan 2007

	Particulate Sept 2001

	SO2 Sept 2001

	CO Sept 2001

	Opacity Sept 2001

Emissions	Particulate 	64.18 tons per year

		NOx		1651 tons per year

		SO2		0

Subject to the following as adopted into the Chattanooga Air Pollution
Control Ordinance

 	1.   NOx  SIP Call

2. 40 CFR Part 63 Subpart LLL National Emissions Standards for
Hazardous Air  Pollutants from the Portland Cement Industry

3.  40 CFR Part 60 Subpart F Standards of Performance for Portland
Cement Plants

 4. 40 CFR Part 60 Subpart Y Standards of Performance for Coal
Preparation     Plants

	5.   40 CFR Part 64 Compliance Assurance Monitoring

	6.   40 CFR Part 70 Operating Permit Program

7.   Chattanooga Air Pollution Control Ordinance Rules 2.6, Rule 27,
Rule 26, and Rule 18 .

COMS on Kiln Baghouse. Observed Opacity  between 0 and 5%.

Pressure differential recorded as required by the permit. All pressures
differentials in compliance

Periodic opacity readings recorded as required by the permit. No reading
in violation.

NOx monitored using back end oxygen correlation in compliance. Recorded
at at least 1 minute intervals.

Nine Baghouses subject to CAM. One equipped with COMs. Eight require
pressure drop readings.

Daily qualitive visible observations for all emissions units except for
those equipped with COMs are required. If opacity is greater than 10 %
then a daily Method 9 reading is required. If the limit for a particular
unit is exceeded, then  a Method 9 reading is required daily until the
unit is in compliance.

Archer Daniels Midland Company  d/b/a Southern Cellulose Products

Company Number 3110

Full Compliance Evaluation was completed on November 1, 2006.

Allowable Emissions	Particulate 	14.51	 lb/hr

NOx	No NOx limit for small boilers. Heaters NOx allowable 0.56 lb/hr
(Process Equipment)

			SO2		57.71	 lb/hr

Actual Emissions	Particulate 3.28 TPY

			NOx	      40.67 TPY

			SO2	      0.410    TPY

This source is subject to the following rules.

		1. Particulate			Rule 26.6, 4-8(e)(2)(b), Rule 10

		2. Process NOx		Rule   2.4

		2. Opacity			Rule   3, Rule 26.20

		3. SO2				Rule 13

Caraustar Mill Group, Inc. d/b/a Chattanooga   Paperboard

Company Number 47-065-0700

Full Compliance Evaluation completed on May 3, 2007.  The source was in
compliance.

Allowable Emissions	Particulate 	11.42 TPY

			NOx		30.078	TPY

			SO2		245 TPY

Allowable emissions are based on 2% sulfur content of fuel oil.

Boiler #2 is subject to 40CFR Part 60 Subpart Dc Standard of Performance
for Small Industrial-Commercial-Institutional Steam Generating Units

The source is subject to;

40 CFR Part 70 Operating Permit Program

This source is subject to the following  local rules.

		1. Particulate	Rule 26.6

		2. Opacity	Rule 3

		3. VOC	Rule 25.3

		4. SO2		4-57(a)(1)

		5. Particulate	Rule 27

Ergon Terminaling RACT

Company Number 4040

 Full Compliance Evaluation was completed on July 3, 2007.

This permit applies to a terminal storage facility for asphalt cement,
caustic soda, and styrene monomer. On average, 32 barges per year are
unloaded per year. There are emissions of VOC from the products but the
heaters are the sources of PM2.5 precursors and direct PM2.5. The
facility operates 4 heaters and boilers. These are the following:

				Hopkins Thermal Liquid Heater	8.6 million BTU/hr

				VA Power Boiler			5    million BTU/hr					VA Power Thermal Liquid
heater          6.6 million BTU/hr

				Boiler B1  				13 million   BTU/hr

Allowable Emissions	Particulate 	8.20 lb/hr

			NOx		N/A

			SO2		10.15 lb/hr

Actual Emissions	Particulate 	1.41 TPY

			NOx	       	14.12 TPY

			SO2	     	 50.13   TPY

Available Emission Factors show direct PM2.5 as 0.8820 TPY

Boiler B1 is subject to

40CFR Part 60 Subpart Dc- Standards of Performance for Small
Industrial-Commercial-Institutional Steam Generating Units.

The NSPS limits the sulfur in the fuel oil to 0.5%

		Rule 8.2 limits particulate to 8.2 lb/hr

INVISTA S.à.r.l., LLC

Company Number	47-065-3889

INVISTA, at this time consists of three sources. The sources are
INVISTA, Kordsa, and DuPont. 98.9% of the emissions are from INVISTA.
Changes in ownership are such that this permit will soon be broken into
three. INVISTA will be the only one of the three that will be a major
source.

Full Compliance Evaluation completed on May 18, 2006. The source was in
compliance.

Emissions	Particulate	40.60 tons per year

		NOx		273.27 tons per year

		SO2		828.44 tons per year

Subject to the following as adopted into the Chattanooga Air Pollution
Control Ordinance

	1.   40 CFR Part 64 Compliance Assurance Monitoring

	2.   40 CFR Part 70 Operating Permit Program

3.  40 CFR Part 60 Subpart Dc Standards of Performance for Small
Industrial-Commercial-Institutional Steam Generating Units.

4. Chattanooga Air Pollution Control Ordinance 4-8(e)(2), Rule 2, Rule
3, Rule 10, Rule 13,  Rule 26, and Rule 27.

This source is a major source because of combustion emissions.

Boilers 1 and 2

	Natural Gas Primary Fuel

Fuel oil limited to 1.830,000 gallons per year in boilers with 0.3 %
sulfur.

Monitored by recordkeeping

Opacity limit 10%

Boilers 3, 4, and 5

	Bituminous Coal Fuel limited to 112,000 tons per year.

	Sulfur limited to 1.25 % by weight.

	Particulate limited by Rule 26

	Baghouse control.

	Sulfur monitored by fuel testing.

Coal-fired boilers demonstrated the same emissions as original tests
when Method 5 was performed as part of the Site Specific Health Based
Compliance Demonstration

Vaporizers 1, 2, 3, 4, 5, and 6.

	Limited to natural gas and Number 2 fuel oil.

10% opacity limit

Limited to 2,000,000 gallons per year.

Fuel oil limited to 0.3% sulfur.

Dowtherm Transport System

	Condensers followed by demisters

Continuous Polymerization Line II

	Scrubber control

.

Particulate from polyester flake handling

	Controlled by 9 bag houses and 2 HEPA filters

Particulate from hot chest exhausts of Spinning Machines
201,202,203,211,221,231,241, and 251

 Controlled by ESPs.

All control systems have required monitoring in the permit to insure
that the controls are working as designed.

Mueller Company

Company Number	47-065-2150

Reconstructed  	1999

Full Compliance Evaluation by Chattanooga-Hamilton County APCB, November
26 2006. The source was found to be In Compliance.

Full Compliance Evaluation by Region 4, March 13, 2007.  The source was
found to be In Compliance.

Emissions	Particulate  47.8  tons per year

		NOx	17.14 tons per year

		SO2	3.6 	tons per year

Subject to the following as adopted into the Chattanooga Air Pollution
Control Ordinance

1. 40 CFR Part 63 Subpart EEEEE National Emissions Standards for
Hazardous Air  Pollutants from the Iron and Steel Foundrys

	5.   40 CFR Part 64 Compliance Assurance Monitoring

	6.   40 CFR Part 70 Operating Permit Program

7 40 CFR Part 60 Subpart Cc Standards of Performance for Small
Industrial-Commercial-Institutional Steam Generating Units.

8 Chattanooga Air Pollution Control Ordinance Rules, Rule 27, Rule 26,
Rule 3, Rule 2, Rule 10, Rule 13, Rule 2, Rule 18.

Pressure differential recorded as required by the permit. All pressures
differentials in compliance

Bag leak detectors as required by the MACT are in place

Periodic opacity readings recorded as required by the permit. No reading
in violation.

Eight baghouses are subject to CAM. These require daily pressure drop
readings.

Four emission points are controlled by a HEPA filter in series with a
baghouse.

Foundry visible emissions 10 % except for emissions from buildings and
then iyt is 5%.

Foundry landfill visible emissions limit is 10%.

Saint-Gobian  Norpro RACT

Company Number 2220

Full Compliance Evaluation completed on December 8, 2006. The source was
in compliance

Allowable Emissions	Particulate 	83.5	 TPY

			NOx		10	TPY

			SO2		72	 TPY

Actual Emissions	Particulate 10.2 TPY

			NOx	       3.5 TPY

			SO2	      20    TPY

This source is subject to the following rules.

		1. Particulate			Rule 10.3 , Rule 26.3, and 4-8(e)(2)(b)

		2. Process NOx		Rule   2.4

		2. Opacity			Rule   3  10% Opacity limits

		3. Process gaseous emissions	Rule 23

		4. SO2				Rule 13.2

Southeastern Materials (Shallowford Plant)

Company Number 6008

Full Compliance Evaluation was completed on June 23, 2006. The source
was in compliance.

Allowable Emissions	Particulate 	71.83	 TPY

			NOx		24.3	TPY

			SO2		6.69	 TPY

Actual Emissions	Particulate 	22.1 TPY

			NOx	      	 20.5 TPY

			SO2	      	2.25    TPY

Available Emission Factors show direct PM2.5 as 2.25 TPY

This source is subject to the following :

40CFR Part 60 Subpart I Standards of Performance for Hot Mix Asphalt
Facilities

The NSPS sets a PM emissions limit of 0.04 gr/dscf and a visible
emission limit of less than 20%.

		The facility is subject to the following local Rules;

Rule 27.1 which requires particulate BACT applies. The NSPS particulate
limit is considered as BACT but a 10% opacity limit is required under
Rule 27.1

Rule 2.4  limits NOx emissions to 300 ppm

Rule 13 limits SO2 to 300 ppm.

The stack test required by the NSPS was conducted in August 1999.

 PAGE

 PAGE   17


[Federal Register: June 19, 2008 (Volume 73, Number 119)]
[Notices]
[Page 34989]
[DOCID:fr19jn08-123]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

Office of Hazardous Materials Safety; Notice of Applications for
Modification of Special Permit

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: List of Applications for Modification of Special Permit.

-----------------------------------------------------------------------

SUMMARY: In accordance with the procedures governing the application
for, and the processing of, special permits from the Department of
Transportation's Hazardous Material Regulations (49 CFR part 107,
subpart B), notice is hereby given that the Office of Hazardous
Materials Safety has received the applications described herein. This
notice is abbreviated to expedite docketing and public notice. Because
the sections affected, modes of transportation, and the nature of the
applications have been shown in earlier Federal Register publications,
they are not repeated here. Requests for modifications of special
permits (e.g., to provide for additional hazardous materials, packaging
design changes, additional mode of transportation, etc.) are described
in footnotes to the application number. Application numbers with the
suffix ``M'' denote a modification request. These applications have
been separated from the new applications for special permits to
facilitate processing.

DATES: Comments must be received on or before July 7, 2008.

ADDRESS COMMENTS TO: Record Center, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, Washington,
DC 20590.
    Comments should refer to the application number and be submitted in
triplicate. If confirmation of receipt of comments is desired, include
a self-addressed stamped postcard showing the special permit number.

FOR FURTHER INFORMATION CONTACT: Copies of the applications are
available for inspection in the Records Center, East Building, PHH-30,
1200 New Jersey Avenue, SE., Washington, DC or at http://dms.dot.gov.
    This notice of receipt of applications for modification of special
permit is published in accordance with part 107 of the Federal
hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR
1.53(b)).

    Issued in Washington, DC, on June 9, 2008.
Delmer F. Billings,
Director, Office of Hazardous Materials, Special Permits and Approvals.

----------------------------------------------------------------------------------------------------------------
                                                                      Regulation(s)     Nature of special permit
   Application No.          Docket No.             Applicant             affected                thereof
----------------------------------------------------------------------------------------------------------------
                                          MODIFICATION SPECIAL PERMITS
----------------------------------------------------------------------------------------------------------------
7765-M..............  ......................  Carleton             49 CFR               To modify the special
                                               Technologies,        173.302(a)(4);       permit to authorize
                                               Inc., Orchard        175.3.               reheat treatment of
                                               Park, NY.                                 lots of rejected
                                                                                cylinders when the
                                                                                construction materials
                                                                                do not pass pressure
                                                                                and flattening tests.
9884-M..............  ......................  Covidien (formerly   49 CFR 173.3 16....  To modify the special
                                               Tyco Healthcare),                         permit to authorize
                                               Plainfield, IN.                           brazing of withdrawal
                                                                                tubes rather than
                                                                                welding.
11725-M.............  ......................  ATK Space (formerly  49 CFR 173.34(d);    To modify the special
                                               Swales Aerospace,    173.40; 173.301;     permit to authorize the
                                               Inc.), Beltsville,   173.302(a);          transportation in
                                               MD.                  173.304(a)(2);       commerce of an
                                                                    175.3.               additional Class 3 and
                                                                                Class 9 hazardous
                                                                                material.
11818-M.............  ......................  ATK Space (formerly  49 CFR 180.205.....  To modify the special
                                               Swales Aerospace,                         permit to authorize the
                                               Inc.), Beltsville,                        transportation in
                                               MD.                                       commerce of an
                                                                                additional Class 3
                                                                                material.
12296-M.............  RSPA-99-5879..........  Clean Earth          49 CFR               To modify the special
                                               Systems, Inc.,       173.12(b)(2)(i).     permit to authorize an
                                               Tampa, FL.                                alternative outer
                                                                                packaging for lab
                                                                                packs.
14457-M.............  PHMSA-07-26878........  Amtrol Alfa          49 CFR               To modify the special
                                               Metalomecanica SA,   173.304a(a)(1);      permit to authorize the
                                               Portugal.            175.3.               manufactured cylinders
                                                                                to be used as recovery
                                                                                cylinders for the
                                                                                materials authorized in
                                                                                the special permit.
14659-M.............  PHMSA-08-0056.........  ESM Group Inc.,      49 CFR 173.242 (b)   To reissue the special
                                               Amherst, NY.         and (c).             permit originally
                                                                                issued on an emergency
                                                                                basis for the
                                                                                transportation in
                                                                                commerce of calcium
                                                                                carbide (UN 1402),
                                                                                Division 4.1, PG I in
                                                                                non-DOT specification
                                                                                bulk containers by
                                                                                motor vehicle.
----------------------------------------------------------------------------------------------------------------

[FR Doc. E8-13744 Filed 6-18-08; 8:45 am]

BILLING CODE 4909-60-M


(exempting sources from compliance with environmental regulations when
necessary to comply with a DOE emergency order), as well as provisions
such as CAA section 110(f) (authorizing state governors to temporarily
suspend certain requirements where the President determines a national
or regional energy emergency exists). The EPA cannot here provide any
further guarantees in this regard in the form of an affirmative
defense, exemption, or other mechanism that would run contrary to the
CAA.
---------------------------------------------------------------------------

    \55\ A source faced with demands to continue generating
electricity would always have to decide whether doing so could cause
it to exceed emission limits in its title V operating permit; the
presence or absence of an affirmative defense that could later be
asserted in an enforcement proceeding does not change this fact. For
further discussion, see section III.B.1. of this document.
---------------------------------------------------------------------------

4. Perceived Benefits of the Requirements Associated With the Title V
Affirmative Defense Provisions
    Comment: Some commenters discussed perceived benefits of retaining
affirmative defense provisions as written, in addition to the increased
certainty and consistency that commenters believe the provisions
provided. One commenter claimed that the various demonstration and
reporting requirements in the title V emergency affirmative defense
provisions serve as incentives for sources to prevent and minimize
excess emissions during emergencies, an incentive that the commenter
claimed would be lost if the affirmative defense was removed.
    Response: The components of the title V emergency affirmative
defense involving recordkeeping and reporting requirements and the
obligation for a source to properly operate its facility and take all
reasonable steps to minimize excess emissions (40 CFR 70.6(g)(3) and
71.6(g)(3)) were important to limit the scope of the defense and any
potential for abuse. However, the EPA does not agree that removing the
affirmative defense will eliminate the incentives for sources to
appropriately prepare for and respond to emergency situations, to
minimize excess emissions, to maintain proper records of such events,
or to notify relevant authorities in a timely manner. Because the CAA
requires continuous compliance with applicable emission limitations and
emission standards, sources should properly operate and take steps to
minimize excess emissions at all times. Sources still have an incentive
to do all of these things in the event of an emergency, because doing
so would continue to be in their best interests both for compliance
purposes and for purposes of defending against an enforcement action.
Again, the EPA believes that such prudent behavior is a matter of good
business practice that most, if not all, sources would normally pursue
irrespective of an affirmative defense.
5. Environmental and Public Health Impacts
    Comment: A number of commenters discussed the potential air quality
and public health impacts of removing the title V affirmative defense
provision. Industry commenters asserted that

removing the affirmative defense provisions would not reduce emissions
or provide any air quality benefits. Moreover, industry and state
commenters claimed that the EPA has not made any demonstration that
emissions during emergencies endanger public health or safety or have
resulted in problems with attainment of the NAAQS. One commenter
claimed that EPA action to remove the title V affirmative defense
provisions would be arbitrary and capricious because the action would
impose regulatory burdens without any significant benefit, and because
the EPA failed to consider the costs and benefits of its proposed
action.
    On the other hand, environmental commenters claimed that
affirmative defense provisions impermissibly allow large facilities to
emit massive amounts of pollution in violation of applicable emission
limits without consequence. These commenters provided extensive
discussion of the health impacts of different pollutants and cited to
numerical data and case studies involving the emissions of a number of
large industrial facilities. The commenters asserted that this is an
environmental justice issue, as these emissions impact surrounding
communities, which the commenters claimed are often low-income
communities or communities of color. Environmental commenters asserted
that the impacts of climate change may increase the incidence of
malfunctions due to extreme weather events.
    Response: As previously explained, the EPA is removing the
affirmative defense provisions from the title V program regulations
because these provisions are inconsistent with the EPA's interpretation
of the enforcement structure of the CAA. The EPA is not basing this
current action on potential air quality benefits, or a weighing of
costs and benefits, associated with the removal of these provisions.
While the EPA acknowledges that there are benefits to reducing
emissions, including reducing impacts to communities with environmental
justice concerns, as previously explained, the purpose of this
rulemaking is to eliminate the affirmative defense provisions that EPA
finds to be inconsistent with the enforcement structure of the Clean
Air Act. This action also does not take into account the impact of
climate change on the incidence of malfunctions and, as previously
explained, emergencies, which--although there may be some
similarities--are significantly different, and narrower, than
malfunction events.

E. Response to Comments Outside the Scope of This Action

    Comment: Several industry commenters requested that EPA should
consider removing hospital, medical, and infectious waste incinerators
(HMIWI) as a title V source category or consider reducing program
requirements applicable to HMIWIs. Separately, one commenter expressed
disagreement with the EPA's return to its 2015 SSM SIP Policy.
    Response: These comments are not relevant to the current rulemaking
action and are outside the scope of this final rule.

IV. Implementation Considerations

    This section provides guidance and addresses comments on various
aspects related to implementing this final rule. First, as indicated in
the 2016 and 2022 proposed rules, as a result of the EPA's removal of
40 CFR 70.6(g), state, local and tribal permitting authorities \56\
whose part 70 programs contain impermissible affirmative defense
provisions \57\ must submit program revisions to the EPA to remove such
impermissible provisions from their EPA-approved part 70 programs. The
part 70 program revision process should follow the procedures in 40 CFR
70.4(a) and (i), as specified in the guidance provided in the following
subsections. In summary, the EPA expects that states with part 70
programs containing impermissible affirmative defense provisions will
submit to the EPA either a program revision, or a request for an
extension of time, within 12 months of the effective date of this final
rule--i.e., by August 21, 2024. Other considerations associated with
program revisions are discussed further in section IV.A. of this
document.
---------------------------------------------------------------------------

    \56\ As noted previously, the term ``state'' is used generically
throughout this section to refer to all state, local, U.S.
territorial, and tribal permitting authorities that administer EPA-
approved part 70 (title V) programs. See 40 CFR 70.2 and 71.2.
    \57\ As specified further in section IV.A.1. of this document,
the term ``impermissible affirmative defense provisions'' is
intended to refer to all affirmative defense provisions that, for
the same reasons necessitating the EPA's removal of CFR 70.6(g) and
71.6(g), are inconsistent with the enforcement structure of the CAA.
---------------------------------------------------------------------------

    States must also remove title V-based affirmative defense
provisions contained in individual operating permits. The EPA
encourages states to remove these provisions at their earliest
convenience. The EPA expects that any necessary permit changes should
occur in the ordinary course of business as states process periodic
permit renewals or other unrelated permit modifications. At the latest,
states must remove affirmative defense provisions from individual
permits during the next permit revision or periodic permit renewal for
the source that occurs following either (1) the effective date of this
rule (for permit terms based on 40 CFR 70.6(g) or 71.6(g)) or (2) the
EPA's approval of state program revisions (for permit terms based on an
affirmative defense provision in an EPA-approved title V program).
Additional considerations associated with permit revisions are
discussed further in section IV.B. of this document.

A. Program Revisions

    This section clarifies the EPA's expectations for how the final
action to remove 40 CFR 70.6(g) will affect state programs and responds
to comments involving these considerations. Specifically, this section
describes the actions that some states will need to take in order to
submit program revisions to remove impermissible affirmative defense
provisions.
1. Necessity for State Program Revisions
    As indicated in the 2016 and 2022 proposed rules, as a result of
the removal of 40 CFR 70.6(g), the EPA has determined that it is
necessary for states whose part 70 programs contain impermissible
affirmative defense provisions to submit program revisions to the EPA
to remove such provisions from their EPA-approved part 70 programs.\58\
This determination is based on the EPA's interpretation of the
enforcement structure of the CAA, as informed by the NRDC decision. The
EPA's rationale concerning affirmative defenses, presented in section
III.A. of this document, applies equally to affirmative defense
provisions within state part 70 operating permit programs, which the
EPA now considers to be impermissible. The term ``impermissible
affirmative defense provisions'' as used throughout this section is
intended to refer to all affirmative defense provisions that, for the
same reasons necessitating the EPA's removal of CFR 70.6(g) and
71.6(g), are inconsistent with the CAA. This includes, but is not
limited to, any provisions within EPA-approved part 70 programs that
are similar to, based on, or function in similar ways to the provisions
being removed from 40 CFR 70.6(g). For example, any title V provisions
that establish an affirmative defense that could be asserted in a civil
enforcement

action involving alleged noncompliance with any federally-enforceable
standards would be inconsistent with the enforcement structure of the
CAA. Such provisions are impermissible regardless of whether the
affirmative defense provisions are specific to emergency situations,
and regardless of other criteria contained within such provisions. Any
provisions in an EPA-approved part 70 program that establish an
exemption to emission limitations as described in this document will
similarly need to be removed. This action will not have any direct
effect on affirmative defense provisions established under other CAA
programs, such as the SIP or section 111, 112, or 129 programs.
---------------------------------------------------------------------------

    \58\ To the extent that this document refers to the need to
remove affirmative defense provisions from part 70 programs, the EPA
is referring to the need for states to submit program revisions to
the EPA to remove such provisions from states' EPA-approved part 70
(title V) operating permit programs.
---------------------------------------------------------------------------

2. EPA's Authority To Require State Program Revisions
    Comment: Multiple commenters objected to the EPA's indication that,
if the EPA finalized the removal of 70.6(g), it may be necessary for
states with similar affirmative defense provisions to remove those
provisions and submit program revisions.
    A number of commenters discussed the legal authority by which the
EPA could require state program revisions. Environmental commenters
suggested that CAA section 502(b), read together with sections 502(d)
and (i) and with 40 CFR 70.4, plainly authorizes the EPA to revise the
minimum elements of operating permit program regulations when the
Administrator determines that revisions are necessary to meet the
requirements of the CAA. Other commenters argued that the EPA has no
legal basis for imposing its policy preference on states, and some
industry commenters claimed that nothing in the CAA authorizes the EPA
to withdraw its final approval of a state title V permit program
because the EPA prefers a particular improvement to what was already
approved, claiming that this would be contrary to Congressional intent
and the purpose of title V. One state commenter similarly claimed that
requiring program revisions would fundamentally shift the careful
balance between the state and the federal governments' regulatory
partnership. Some commenters also claimed that requiring states to make
title V program changes would constitute a challenge to the legality of
state programs and would require a finding that there is no situation
where the state program provisions can be applied in a way that is
consistent with the Act. One commenter characterized state program
revisions as an unfunded mandate, which the commenter asserted should
not be imposed on states without a clear and compelling need. One
commenter claimed that the EPA has impermissibly extended its
interpretation of the NRDC case to state operating permit programs.
    State commenters discussed the authority of states to tailor the
details of their own title V program regulations and potential limits
on the EPA's authority to dictate the fine particulars of state
programs. One state commenter claimed that by removing the title V
emergency affirmative defense provisions, the EPA would substantially
raise the minimum elements required by the Act for state operating
permit programs, citing 40 CFR 70.1(a). Other state commenters claimed
that under title V, similar to CAA section 110 for SIPs, after the EPA
sets minimum program requirements, states must meet these minimum
requirements but have the authority and discretion to otherwise tailor
their program to their specific state requirements, such as by
providing for affirmative defenses. State commenters further asserted
that the EPA's implementing regulations do not require a state's
enforcement program to be set out in any particular manner, while
acknowledging that states must have adequate authority to carry out all
aspects of the program and submit a description of their enforcement
program to the EPA, citing 40 CFR 70.4(b)(3) and (5). One state
commenter noted that an acceptable enforcement program should include
the ability to account for emissions during distinct periods of
operation, including SSM.
    Both state and industry commenters also highlighted the fact that
the title V emergency provisions have always been discretionary, not
required, elements of state programs. One commenter argued that because
the affirmative defense provisions were initially discretionary, it
should now be up to states to decide whether to retain them. The
commenter claimed that this is a logical extension of a state's
constitutional authority and that the EPA should not disturb state
authorities by disapproving existing state permit programs that contain
these provisions.
    Response: The EPA agrees with those commenters who asserted that
the CAA authorizes the EPA to revise its part 70 implementing
regulations when necessary to conform to the CAA, including provisions
of the CAA that apply to the enforcement of title V permit
requirements. As the CAA and the EPA's implementing regulations are
periodically updated to address evolving legal, policy, technical, and
scientific information, so must state operating programs be updated.
State part 70 program revisions, while infrequent, are a natural and
necessary part of a complex regulatory program, and this process is
entirely consistent with the principles of cooperative federalism
established in title V of the CAA. As various commenters acknowledged,
the EPA has the authority to establish the minimum elements for state
title V programs. See CAA section 502. The EPA's part 70 regulations
implement this authority. When the EPA must remove an element from its
implementing regulations in order to maintain consistency with CAA
requirements, it follows that it would also generally be necessary to
revise EPA-approved state part 70 programs to meet the same minimum
legal requirements required by the CAA. The EPA acknowledges that
states may establish additional permitting requirements, but only to
the extent they are not inconsistent with the CAA. See CAA section
506(a). States do not have discretion to implement provisions that are
inconsistent with the enforcement structure of the CAA or the EPA's
part 70 regulations.
    As some commenters acknowledged, the EPA's existing part 70
implementing regulations clearly establish a framework by which state
part 70 programs may need to occasionally be revised, including when
the part 70 regulations are revised or modified. See, e.g., 40 CFR
70.4(a) (if part 70 is revised and the Administrator determines that
changes to approved state programs are necessary, states must submit
program revisions); 70.4(i) (program revisions may be necessary when
relevant federal or state statutes or regulations are modified). The
EPA has the authority to approve or disapprove program revisions based
on the requirements of the part 70 regulations and the CAA. See 40 CFR
70.4(i)(1), (2). Thus, the EPA has authority to require state title V
program revisions.
    To be clear, the final action being taken in this rule is the
removal of the affirmative defense provisions from the EPA's
regulations at 40 CFR 70.6(g) and 71.6(g). As a consequence of this
regulatory action, it will be necessary for states with part 70
programs containing impermissible affirmative defense provisions to
make conforming revisions to their part 70 programs. However, contrary
to the assertions of some commenters, the EPA is not, at this time,
disapproving or making any finding of deficiency or inadequacy with
respect to any particular state program (such as a finding under 40 CFR
70.10), although this type of determination may be appropriate at a
later time. This document clarifies the EPA's expectations for how the
program revision process will unfold, based on

the EPA's existing implementing regulations and the EPA's longstanding
experience in overseeing title V operating permit programs. The EPA
intends that this guidance will be useful to permitting authorities and
permit holders interested in understanding how removal of the
affirmative defense provisions from the EPA's regulations will affect
their programs and individual permits, respectively.
    The EPA also reiterates, as multiple commenters acknowledged, that
the title V affirmative defense provisions have always been
discretionary elements of state permitting programs, and the EPA has
never required states to adopt these provisions. In fact, a number of
state part 70 programs do not appear to contain any such title V
affirmative defense provisions. However, contrary to one commenter's
assertion, the fact that these provisions were never required elements
of state programs does not mean that they now must be deemed
appropriate program elements or that states must be allowed to continue
implementing them.
    Finally, as explained in section V.D. below, this action does not
contain an unfunded mandate of $100 million or more as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no new enforceable duty on any
state, local or tribal governments or the private sector. As a result
of this rule, some states with EPA-approved part 70 programs that
contain impermissible affirmative defense provisions will be required
to submit program revisions to the EPA, according to the framework
established by the EPA's existing regulations. To the extent that such
affected states allow local air districts or planning organizations to
implement portions of the state's obligation under the CAA, the
regulatory requirements of this action do not significantly or uniquely
affect small governments because those governments have already
undertaken the obligation to comply with the CAA.
3. Scope of Necessary Program Revisions
    Comment: Commenters addressed various aspects of the scope of state
program revisions that would be necessary following the removal of 40
CFR 70.6(g). First, some commenters claimed that part 70 program
regulations that incorporate by reference 40 CFR 70.6(g) or any state
affirmative defense provisions effectively function the same as
regulations that expressly include an affirmative defense. Commenters
claimed that if these provisions were not removed from state programs,
they would create ambiguity and would undermine CAA enforcement.
Therefore, these commenters asserted that part 70 program regulations
that incorporate by reference any other affirmative defense provisions
must also be removed from state programs.
    Next, multiple commenters expressed support for the view that
states may retain affirmative defense provisions that could be used for
alleged noncompliance with permit requirements arising solely from
state law. Some commenters asserted that the EPA has no authority to
limit the ability of states to provide this type of state-only
affirmative defense provision. Another commenter suggested that state-
only affirmative defense provisions should be available not only for
enforcement actions brought by state agencies, but also for enforcement
actions brought by citizens or the EPA. However, other commenters
indicated concern that sources could attempt to invoke state-only
affirmative defense provisions in enforcement proceedings involving
noncompliance with federal requirements, thereby undermining the
enforcement of the CAA. These commenters suggested that the EPA provide
guidance to clarify that if a state wishes to retain an affirmative
defense for noncompliance with state-only requirements, the state must
also include clarifying language in their regulations expressly
limiting the applicability of such remaining affirmative defense
provisions. Commenters also suggested that states identify these state-
only program provisions in their title V program revisions.
    Additionally, some commenters asserted that states should be able
to circumscribe their own authority to enforce even federally
enforceable requirements. Commenters suggested that states should be
able to provide an affirmative defense to state-initiated enforcement
(such as for administrative penalty proceedings) or otherwise restrict
their ability to enforce alleged violations of federally-enforceable
applicable requirements.
    Finally, some commenters disagreed with the EPA's suggestion that
states may retain portions of the emergency provisions, such as the
definition of ``emergency'' or certain reporting requirements, for
purposes of supporting other regulations that do not involve an
affirmative defense. The commenters expressed concern that the presence
of a definition of ``emergency'' or other recordkeeping, reporting, or
work practice requirements could be interpreted as providing for an
affirmative defense or otherwise excusing a source from compliance
during these periods. However, these commenters also asserted that the
EPA should encourage more readily accessible information about excess
emission events, in order to better inform surrounding communities of
air quality issues.
    Response: As previously noted, all impermissible affirmative
defense provisions, as specified in section IV.A.1. of this document,
will need to be removed from EPA-approved part 70 programs. To
reiterate, this encompasses provisions that are similar to, based on,
or function in similar ways to the provisions in 40 CFR 70.6(g) that
the EPA is removing in this action, including all provisions that
effectively establish an affirmative defense that could be asserted in
an enforcement action involving alleged noncompliance with any
federally-enforceable standards. In light of comments received, the EPA
is also providing clarification on various other topics related to the
scope of necessary program revisions.
    Regarding state part 70 provisions that incorporate other
affirmative defense provisions by reference, as a general matter, the
EPA agrees with commenters' assertions that incorporating a provision
by reference may have the same legal effect as explicitly including the
provision within a regulation. Thus, where a state part 70 program
incorporates by reference another independently applicable affirmative
defense that suffers the same infirmities as those provisions being
removed from 40 CFR 70.6(g) and 71.6(g), the state provision
incorporating the affirmative defense provision would generally need to
be removed.\59\
---------------------------------------------------------------------------

    \59\ It may be possible that some state programs could
incorporate 40 CFR 70.6(g) (or a similar state provision) by
reference in such a manner as to leave it free from doubt that the
incorporating provision would have no legal effect following the
removal of 40 CFR 70.6(g) from the EPA's regulations (or following
the removal of the state affirmative defense). However, the EPA
believes that removal of the incorporating provision would
nonetheless be the best practice to avoid the potential for
confusion.
---------------------------------------------------------------------------

    Concerning the comments supporting the option for states to retain
an affirmative defense as a ``state-only'' provision--which would apply
solely to rights and responsibilities created by state law and would
not apply to, interfere with, or otherwise affect any requirements or
remedies under the CAA or federally-enforceable regulations--the EPA
agrees that states have the discretion to develop such state-only
provisions, as allowed under

state law. However, any such provisions would only be available in
enforcement actions brought solely under state law, and they would not
be available in enforcement actions brought for alleged violations of
any federally-enforceable requirements in a source's title V permit.
This rulemaking would have no effect on, and does not preclude states
from retaining or creating, such regulations unrelated to the state's
EPA-approved part 70 program. State-only affirmative defense provisions
that are included within individual operating permits would need to be
clearly labeled to indicate their limited applicability. 40 CFR
70.6(b)(2).
    However, notwithstanding the ability of states to create state-only
affirmative defense provisions within their state regulations, any
impermissible affirmative defense provisions contained within any EPA-
approved part 70 programs will nonetheless need to be removed from the
state's EPA-approved part 70 program. In such instances, the state
would need to transmit to the EPA a program revision submittal to
remove the affirmative defense provision from the body of regulations
that comprise the state's official EPA-approved part 70 program. The
EPA believes that the best practice for states would be to conduct a
rulemaking to remove the affirmative defense provision from the state's
current regulations (or to revise the state regulations to clarify the
limited applicability of a state-only affirmative defense) and/or a
legislative process to remove such provisions from a state statute, in
addition to submitting the part 70 program revision to the EPA to
formally remove the provision from the state's EPA-approved part 70
program. This would provide clarity for sources and the public and
avoid any inconsistency between the state's EPA-approved part 70
program and the state's current regulations and/or statutes.
    Regarding comments suggesting that states should be able to limit
their own authority to enforce even federally enforceable requirements,
as noted in section III.D.2. of this document, permitting authorities
always retain the discretion to determine whether to initiate an
enforcement action based on the circumstances of a given case. To the
extent that a state develops an ``enforcement discretion''-type
provision that applied only in its own administrative enforcement
actions or only with respect to enforcement actions brought by the
state in state courts, such a provision may be appropriate under state
rules.\60\ However, among the minimum required elements of a title V
permit program is the requirement that, consistent with EPA
regulations, the permitting authority have adequate authority to assure
compliance with applicable standards, requirements, and regulations,
and to enforce permits, including the ability to recover civil
penalties for each violation. See CAA section 502(b)(5), 42 U.S.C.
7661a(b)(5). EPA regulations further provide that approved title V
programs must have appropriate enforcement authority, including the
authority to seek injunctive relief and to assess or recover civil
penalties for violations of any applicable requirement or permit
condition. See 40 CFR 70.11. Thus, to the extent that states wish to
describe certain aspects of their enforcement discretion policy within
their part 70 program regulations, this could only be permissible
provided that the provision does not effectively undermine or eliminate
the state's ability to enforce its title V program, even under the
circumstances previously covered by the affirmative defense. For
example, it would likely not be permissible for a state to establish
criteria that, when met, would effectively preclude the state from
enforcing, even in part, a federally-enforceable standard. Nor would it
be permissible for any such provision to limit the ability of the EPA
or citizens to enforce any federally-enforceable permit terms or to
interfere with the authority of the federal courts to determine whether
and to what extent certain remedies are appropriate in a given case.
---------------------------------------------------------------------------

    \60\ The EPA has previously discussed an analogous issue in the
context of SIPs. See SSM SIP Action, 80 FR 33855.
---------------------------------------------------------------------------

    Finally, although states may not retain title V provisions
establishing an affirmative defense to noncompliance with federal
requirements, the EPA reiterates its position that states may choose to
retain certain aspects of their existing program regulations--such as
the definition of ``emergency'' and associated reporting and
recordkeeping requirements--to support functions unrelated to an
affirmative defense, such as prompt reporting requirements. The EPA
disagrees with commenters' assertions that the presence of definitions
or reporting and recordkeeping requirements associated with emergencies
would necessarily imply that an affirmative defense exists or that
exceedances of emission limits during emergencies are excused. To the
contrary, and although the EPA is not retaining such provisions within
its own regulations, states may decide that some of these provisions
could potentially serve a useful function for state permitting
authorities considering whether to pursue enforcement, for sources
faced with the possibility of a state enforcement action, and for the
public.
4. Timing Associated With Program Revisions
    Comment: Multiple state and industry commenters requested that the
EPA allow states additional time to submit any required part 70 program
revisions. These commenters all asserted that 12 months is not
sufficient time to conduct the administrative processes required to
change part 70 program regulations, and suggested that anywhere between
18 and 36 months should be allowed, for various reasons. Some state
commenters provided specific examples of the administrative actions
associated with rulemakings that would necessitate additional time,
including outreach, public hearings and comment periods, rule
development, gubernatorial approval, legislative committee review, and
legislative approval. One state commenter noted that many states face
program and staff resource constraints based on other rulemaking
obligations. Another state commenter predicted that necessary rule
changes may take longer to promulgate because they will be
controversial. Some commenters recommended providing additional time
for state program revisions because these affirmative defense
provisions are not currently causing any pressing problems with
enforcement and there is no urgent need to change the provisions.
Finally, one commenter suggested that additional time for state program
revisions would be necessary to allow time for sources to implement
measures to address the loss of the affirmative defense.
    Other commenters, on the other hand, recommended a more limited
time frame, while acknowledging the discretion that the EPA has under
40 CFR 70.4(a) to extend program revision deadlines. These commenters
supported the EPA's default 12-month submission deadline with the
possibility of an extended deadline of up to 24 months, on the grounds
that states should be able to easily amend their operating permit rules
within months, and that prompt action would facilitate the coordination
of SIP revisions and title V revisions (and associated permit
revisions). Environmental commenters urged the EPA to require states
seeking an extension to specifically request additional time and to
demonstrate good cause for the extension, and urged that

such requests be granted only under compelling circumstances. These
commenters also suggested additional details concerning the required
form, content, and timing of such an extension request.
    Response: As discussed in the proposal, the necessary changes to
part 70 programs arising from this rule should generally be relatively
minor and straightforward, involving the removal of affirmative defense
provisions from the state's part 70 program.\61\ Because of the nature
of the required revisions, the EPA continues to believe that most or
many states should be able to complete the necessary program revisions
within 12 months. However, the EPA again appreciates that some states
may require more time to complete program revisions, based on a number
of different factors associated with their administrative process,
including the potential need for legislative approval. Therefore, the
EPA is allowing states to submit a request to the appropriate EPA
Regional office requesting an extension to this 12-month deadline and
demonstrating why such an extension is necessary. Such extension
requests should include detailed information concerning the steps that
the state will take to revise its part 70 program, as well as the
specific timing associated with each of these steps. The EPA
understands that many states have lengthy rulemaking processes and
expects that requests for extension that include the information
identified here in sufficient detail would generally be approved.
Nonetheless, the EPA will consider each program revision submission and
extension request on a case-by-case basis. The EPA expects that each
state with a part 70 program containing impermissible affirmative
defense provisions will submit a program revision or request for an
extension of time to the EPA by August 21, 2024.
---------------------------------------------------------------------------

    \61\ As discussed in section IV.A.3. of this document, this
particular revision to remove affirmative defense provisions from a
state's EPA-approved part 70 program might not necessarily also
involve a notice-and-comment rulemaking to revise the state's
current administrative code, although the EPA believes this would be
a best practice to ensure clarity.
---------------------------------------------------------------------------

5. Program Revision Submittal Details
    Comment: Two state commenters discussed the details of any required
program revision submittals. One state suggested requiring the
following four components: (1) legal authorization to revise the state
rules and part 70 program; (2) redlined changes to state rules; (3)
timeline for planned removal of affirmative defense from each permit;
and (4) a plan to make these changes to individual permits. Another
state commenter requested additional clarity on what form of legal
authority demonstration would be required for program revision
submittals, and suggested that a rulemaking certification (certifying
that the rules have been reviewed by legal counsel and have been found
to be within the legal authority of the agency) would be sufficient and
less burdensome than a formal opinion by the state Attorney General.
One state commenter further expressed concern with the additional
burden that would be associated with preparing and submitting a revised
program plan. Finally, one commenter requested clarification of the
EPA's intention to publish proposed program revisions in the Federal
Register and provide a 30-day public comment period. They requested
further clarification on whether the EPA intended to publish notice of
approval in the Federal Register or issue a letter to state governors
or their designees.
    Response: As stated in the introduction to this section regarding
program revisions, the part 70 program revision process should follow
the procedures in 40 CFR 70.4(a) and (i). The EPA's part 70 regulations
provide that for state program revisions, the state should submit such
documents as the EPA determines to be necessary. See 40 CFR
70.4(i)(2)(i). As noted in the 2016 proposal, the EPA expects that
program revisions to remove the title V emergency defense provisions
will include, at minimum: (1) a redline document identifying the
state's proposed revision to its part 70 program rules; (2) a brief
statement of the legal authority authorizing the revision; and (3) a
schedule and description of the state's plans to remove affirmative
defense provisions from individual operating permits. The EPA
encourages states to consult with their respective EPA regional offices
on the specific contents of their revision submittal packages.
    Regarding one commenter's statements concerning the legal authority
demonstration component, the EPA reiterates that this component could
take various forms depending on the specific circumstances of each
state, and a formal opinion by an Attorney General should not be
required for the narrow program revisions implicated by this particular
rule. For a revision involving only the removal of affirmative defense
provisions, a certification indicating that the revisions are within
the legal authority of the agency and followed all required
administrative (including public participation) requirements should be
sufficient. For other program revisions related to the removal of
affirmative defense provisions, such as the inclusion of a narrowly
tailored enforcement discretion provision, as discussed in section
IV.A.3. of this document, the legal authority demonstration should also
contain assurances that the state has adequate authority to enforce its
part 70 program.\62\
---------------------------------------------------------------------------

    \62\ For example, the state should demonstrate that any such
alternative provisions: do not interfere with the authority of
courts to determine whether and to what extent certain remedies are
appropriate in a given case; do not limit the ability of citizens or
the EPA to pursue enforcement; and do not limit the state's ability
to enforce its part 70 program, for example by establishing criteria
that, when met, would effectively preclude the state from assessing
or recovering penalties consistent with 40 CFR 70.11(a)(3).
---------------------------------------------------------------------------

    It is unclear what the comments discussing a ``revised program
plan'' refer to. The EPA believes that the plan described in this
document, involving narrow program revision submittals to remove
affirmative defense provisions, is appropriate. As noted in the 2016
proposal, states may, but need not, also include as part of their
program revision submittals any other unrelated revisions to state
program regulations.
6. Consequences of Failure To Submit Program Revisions
    Comment: Some commenters requested that the EPA clarify the
consequences for states that refuse to revise their operating permit
regulations. Specifically, commenters cited to CAA sections 502(d) and
(i) and discussed the possibility of notices of deficiency (NOD),
sanctions, and the eventual withdrawal of permitting authority.
    Response: Commenters are correct that the EPA has the authority
under CAA sections 502(d) and (i), and as specified in the EPA's
implementing regulations at 40 CFR 70.10, to issue NODs, issue
sanctions, and potentially withdraw approval of part 70 programs under
appropriate circumstances, potentially including the failure of a
permitting authority to submit required program revisions to the EPA.
The EPA would exercise this authority on a case-by-case basis for this
element of the program, as it would with any other.
7. Discussion of State-Specific Program Provisions
    Comment: In response to requests from the EPA for information about
part 70 programs that contain affirmative defense provisions, various
commenters discussed certain provisions in specifically identified
state part 70

programs that could be impacted by the final rule.\63\ Several
commenters also requested an update to the document titled ``Title V
Affirmative Defense Provisions in State, Local, and Tribal Part 70
Programs'' that was included in the docket during the 2016 rulemaking
process.
---------------------------------------------------------------------------

    \63\ In the proposed rule, the EPA solicited comment on a
document titled, ``Title V Affirmative Defense Provisions in State,
Local, and tribal Part 70 Programs'' that was included in in the
docket associated with this rulemaking (Docket ID No. EPA-HQ-OAR-
2016-0186). This document contains a tentative list of part 70
programs that appear to contain affirmative defense provisions that
could be affected by this action. The document was intended for
informational purposes only and does not reflect any type of
determination as to the adequacy or inadequacy of any specific
program provisions. The EPA received comments involving provisions
within the Texas and Georgia part 70 programs that purportedly
incorporate by reference affirmative defense provisions.
---------------------------------------------------------------------------

    Response: The EPA appreciates this additional information. As noted
previously, the EPA is not taking any action in this final rule with
respect to the adequacy or inadequacy of individual state programs,
including specific programs identified in the 2016 document referenced
by commenters. The EPA expects that permitting authorities with part 70
programs that have impermissible affirmative defense provisions will
follow the process provided in section IV. of this document. EPA
Regional offices will work closely with permitting authorities to
provide support during this process. States with additional questions
about the impact of this rule on their operating permit programs should
contact the appropriate EPA Regional office for further assistance.

B. Permit Revisions

    This section clarifies the EPA's expectations for the eventual
removal of impermissible affirmative defense provisions from individual
title V operating permits.
1. Scope of Permit Revisions
    Comment: One commenter claimed that title V permits containing
affirmative defenses derived from sources of authority other than 40
CFR 70.6(g) would not need to be revised.
    Response: In general, any impermissible affirmative defense
provisions within individual operating permits that are based on a
title V authority and that apply to federally-enforceable requirements
will need to be removed. For example, permit conditions that directly
rely on 40 CFR 70.6(g) or 71.6(g) would need to be removed following
the removal of these provisions from the EPA's regulations.
Importantly, however, permit revisions would not be limited to permit
conditions based on 40 CFR 70.6(g) and 71.6(g); any permit conditions
that rely on a similarly impermissible title V affirmative defense
provision contained in (or incorporated by reference into) a state's
part 70 program would also have to be removed following state program
revisions. On the other hand, and as the EPA explained in the 2016
proposal, this rule will not directly affect affirmative defense
provisions contained in title V permits that are derived from
independent applicable requirements, such as SIP, NSPS or NESHAP
provisions. Finally, should a state decide to retain a ``state-only''
affirmative defense or enforcement discretion-type provision, it may
need to eventually amend title V operating permits to explicitly state
the limited applicability of the state-only provision. See 40 CFR
70.6(b)(2). The discussion provided in the following subsections
applies to both the removal of affirmative defense provisions from
permits and to the amendment or modification of such permit terms.
2. Burden, Mechanism, and Timing of Permit Revisions
    Comment: State commenters and one tribal commenter claimed that the
EPA underestimates the burden of removing affirmative defense
provisions from individual permits, and challenged the EPA's statement
in the proposal that ``removal of affirmative defense provisions from
permits should generally occur in the ordinary course of business and
should require essentially no additional burden on states and
sources.'' State commenters explained that thousands of existing
operating permits would require some form of revision action to be
processed by the state, and that revising certain general permits that
apply to multiple sources would require an administrative process
similar to a rulemaking.
    Numerous state and industry commenters supported the EPA's
suggestion that states may utilize a number of existing permit
mechanisms to remove affirmative defense provisions from title V
permits in the ordinary course of business, such as when the permitting
authority next processes a permit renewal or significant permit
modification for a source. One state commenter noted that this would be
the most sensible and least disruptive and burdensome mechanism to
complete permit revisions.
    Commenters agreed with the EPA's initial suggestion that the
removal of affirmative defense provisions from operating permits could
be accomplished through the minor permit revision process and would not
constitute a significant permit modification. Further, one state
suggested that the EPA adopt a policy interpretation that removal of
affirmative defense provisions could be accomplished through the
administrative amendment process.
    Some commenters also asserted that permit revisions should not be
based on any other independent deadline or timeline, and that there is
no urgency to remove the provisions. Other commenters, though, urged
the EPA to encourage permitting authorities to exercise their
discretion to remove the provisions as expeditiously as possible, on
the earliest possible occasion.
    Commenters also addressed the sequence of program revisions and
permit revisions. One commenter expressed concern that potential
ambiguity may arise if a source invokes an affirmative defense
provision found in the permit, after the program revisions have been
approved but the permit has not been amended. Lastly, one tribal
commenter expressed its concern that making conforming revisions to
permits before programmatic revisions would create inconsistencies that
could undermine enforcement.
    Response: The EPA acknowledges commenters' general assertions that
a large number of existing title V permits across the nation will
eventually need to be revised to remove title V affirmative defense
provisions. However, the EPA disagrees that this will involve any
extraordinary burden on states or sources. The need to occasionally
revise individual title V permits is a natural, common, and required
feature of the title V operating permits program. Title V operating
permits, by their nature, include a wide variety of requirements
applicable to a source, and permit changes are periodically necessary
to incorporate new or modified applicable requirements, and to reflect
physical or operational changes that occur at a source. The EPA's
regulations, and all EPA-approved state part 70 programs, contain well-
established mechanisms to account for various types of necessary
revisions to title V permits. See, e.g., 40 CFR 70.7(d)-(h). The permit
revisions that will need to occur as a result of this rulemaking fit
well within this existing regulatory framework for occasional permit
revisions.
    Moreover, the EPA expects permit changes to remove discretionary
title V affirmative defense provisions to be a potentially less
burdensome process than, for example, the process required to
incorporate new applicable

requirements in a permit via permit reopening. See, e.g., 40 CFR
70.7(f)(1)(i). As explained in the 2016 proposal, the EPA expects that
any necessary permit changes should occur in the ordinary course of
business. For example, these revisions could be made when a state
processes periodic permit renewals or other permit revisions.
Additionally, states may utilize other existing mechanisms to
effectuate these permit changes, consistent with each state's approved
part 70 program regulations. For example, the EPA does not believe that
a permit revision to simply remove a discretionary affirmative defense
provision would require significant modification procedures, and
permitting authorities may be able to process these changes as minor
modifications. Also, in certain circumstances, it may be possible for
some permit changes to be made using administrative permit amendment
procedures, provided that the removal of the title V emergency
provisions would satisfy one of the specific circumstances contemplated
within each state's approved part 70 program regulations governing
administrative amendments.\64\ States may also be able to utilize other
streamlined mechanisms for processing multiple permit revisions at
once.
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    \64\ In addition to specifying various types of permit changes
for which the administrative amendment process would be appropriate,
the EPA's regulations in 40 CFR 70.7(d) also provide states with the
opportunity to specify additional criteria as part of their part 70
programs, if the EPA Administrator determines that those situations
are similar to those specified in 40 CFR 70.7(d).
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    Regarding the timing of such permit changes, for state or tribal
permitting agencies implementing the federal title V program or part 70
programs that directly rely on 40 CFR 70.6(g), any permit revisions
necessary to remove impermissible affirmative defense provisions from
individual permits should occur promptly after the effective date of
this final rule. For states implementing part 70 programs that contain
state affirmative defense provisions, any permit revisions necessary to
remove impermissible affirmative defense provisions from individual
permits should similarly occur promptly after the EPA's approval of the
necessary part 70 program revisions.\65\ Generally, states would be
expected to remove title V affirmative defense provisions from permits
(or clearly label remaining provisions as state-only) at the earliest
possible occasion when each permit is next reviewed by the permitting
authority, such as the next permit renewal or unrelated permit
revision. Thus, at the latest, states would be expected to remove
affirmative defense provisions from individual permits by the next
periodic permit renewal that occurs following either (1) the effective
date of this rule (for permit terms based on 40 CFR 70.6(g) or 71.6(g))
or (2) the EPA's approval of state program revisions (for permit terms
based on a state affirmative defense provision).
---------------------------------------------------------------------------

    \65\ 81 FR 38645, 38653, n. 35 (June 14, 2016) (acknowledging
limits on state discretion where currently-approved state program
regulations require inclusion of emergency affirmative defense
provisions in state-issued title V permits).
---------------------------------------------------------------------------

    It is important to note that while the EPA is not currently
establishing any independent timeline for states to remove these
provisions from individual permits, the EPA encourages states to begin
removing these provisions from permits prior to the completion of any
necessary part 70 program revisions. States may also find it convenient
to remove these provisions in the course of completing revisions to
permits related to the implementation of the 2015 SSM SIP Action.
3. EPA Objections to Permits
    Comment: Some commenters urged the EPA to make clear that the
agency will object to title V permits issued after the effective date
of the final rule that incorporate or refer to title V affirmative
defense provisions.
    Response: As previously noted, the EPA expects that any necessary
permit revisions will generally occur following program revisions to
remove the underlying affirmative defense provisions from each
permitting authority's part 70 program regulations. Therefore, although
the EPA encourages states to remove title V emergency affirmative
defense provisions from operating permits at the earliest possible
opportunity (including during permit renewals that occur before program
revisions take place), the EPA generally does not anticipate objecting
to title V permits that contain emergency affirmative defense
provisions during the Agency's 45-day review period until after the
relevant permitting authority has made necessary corrections to its
approved part 70 program. The Administrator will evaluate any petitions
to object to proposed title V operating permits on a case-by-case
basis. Statements in this document are not intended to prejudge such
petition responses.
    As noted in section IV.B.2. of this document, in those state or
tribal areas that implement the federal title V program (in 40 CFR part
71) or where the operating permit program directly relies on or
incorporates by reference 40 CFR 70.6(g), the EPA expects states to
begin the process of removing impermissible affirmative defense
provisions from operating permits promptly after the effective date of
this final rule, as such permit revisions would not need to await state
program revisions.

V. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose 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 numbers 2060-0243 (for part 70 state operating permit programs)
and 2060-0336 (for part 71 federal operating permit program). In this
action, the EPA is removing certain provisions from the EPA's
regulations, which should ultimately result in the removal of similar
provisions from state, local, and tribal operating permit programs and
individual permits. Consequently, some states will be required to
submit program revisions to the EPA in order to remove affirmative
defense provisions from their EPA-approved part 70 programs, and will
eventually be required to remove provisions from individual permits.
However, this action does not involve any requests for information,
recordkeeping or reporting requirements, or other requirements that
would constitute an information collection under the PRA.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Entities
potentially affected directly by this proposal include state, local,
and tribal governments, and none of these governments would qualify as
a small entity. Other types of small entities, including stationary
sources of air pollution, are not directly subject to the requirements
of this action.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or

uniquely affect small governments. The action imposes no new
enforceable duty on any state, local or tribal governments or the
private sector. As a result of this rule, some states with EPA-approved
part 70 programs that contain impermissible affirmative defense
provisions will be required to submit program revisions to the EPA,
according to the framework established by the EPA's existing
regulations. To the extent that such affected states allow local air
districts or planning organizations to implement portions of the
state's obligation under the CAA, the regulatory requirements of this
action do not significantly or uniquely affect small governments
because those governments have already undertaken the obligation to
comply with the CAA.

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 has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. One tribal government (the
Southern Ute Indian Tribe) currently administers an approved part 70
operating permit program, and one tribal government (the Navajo Nation)
currently administers a part 71 operating permit program pursuant to a
delegation agreement with the EPA. These tribal governments may be
required to take certain actions, including a program revision (for the
part 70 program) and eventual permit revisions, but these actions will
not require substantial compliance costs. The EPA conducted outreach
with tribal officials early in the process of developing this
regulation to permit them to have meaningful and timely input into its
development. A summary of that outreach is provided in the rulemaking
docket, Docket ID No. EPA-HQ-OAR-2016-0186, available at http://www.regulations.gov.

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

    The EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.

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

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

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) 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 (people of color) and low-income
populations.
    The EPA believes that it is not practicable to assess whether the
human health or environmental conditions that exist prior to this
action result in disproportionate and adverse effects on people of
color, low-income populations and/or Indigenous peoples. This action
simply removes the emergency affirmative defense provisions from the
EPA's operating permit program regulations. As a result of this action,
it will also be necessary for some state, local, and tribal permitting
authorities to remove similar affirmative defense provisions from their
EPA-approved part 70 programs and from individual title V operating
permits. These title V provisions existed independently from any
specific environmental health standards, and their removal should not
affect the establishment of, or compliance with, environmental health
or safety standards. It is not practicable to predict whether the
removal of these affirmative defense provisions will result in any
significant difference in emissions and subsequently whether this
action will have any positive or negative effect on people of color,
low-income populations and/or Indigenous peoples. Information
supporting this Executive Order review is contained in section III.D.5.
of this document.
    The EPA provided meaningful participation opportunities for people
of color, low-income populations and/or Indigenous peoples or tribes in
the development of the action through tribal outreach outlined in
section V.F. of this document and summarized in the rulemaking docket,
Docket ID No. EPA-HQ-OAR-2016-0186, as well as the standard opportunity
to provide public comment on each proposal (2016 and 2022).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

VI. Statutory Authority

    The statutory authority for this action is provided in CAA sections
502(b) and 502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), which direct the
Administrator of the EPA to promulgate regulations establishing state
operating permit programs and give the Administrator the authority to
establish a federal operating permit program. Additionally, the
Administrator determines that this action is subject to the provisions
of CAA section 307(d), which establish procedural requirements specific
to rulemaking under the CAA. CAA section 307(d)(1)(V) provides that the
provisions of CAA section 307(d) apply to ``such other actions as the
Administrator may determine.'' 42 U.S.C. 7607(d)(1)(V).

VII. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the United States Court of Appeals for the
District of Columbia Circuit: (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, but ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' For locally or regionally applicable final actions,
the CAA reserves to the EPA complete discretion whether to invoke the
exception in (ii).
    This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). In the alternative, to

the extent a court finds this final action to be locally or regionally
applicable, the Administrator is exercising the complete discretion
afforded to him under the CAA to make and publish a finding that this
action is based on a determination of ``nationwide scope or effect''
within the meaning of CAA section 307(b)(1).\66\ This final action
revises both the regulatory requirements in 40 CFR part 70 that govern
state, local, tribal, and U.S. territorial operating permit programs
nationwide and the regulatory requirements in 40 CFR part 71 that
govern federal operating permits nationwide.\67\ Accordingly, this
final action is a nationally applicable regulation or, alternatively,
the Administrator is exercising the complete discretion afforded to him
by the CAA and hereby finds that this final action is based on a
determination of nationwide scope or effect for purposes of CAA section
307(b)(1) and is hereby publishing that finding in the Federal
Register.
---------------------------------------------------------------------------

    \66\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of Agency resources.
    \67\ In the report on the 1977 Amendments that revised section
307(b)(1) of the CAA, Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
---------------------------------------------------------------------------

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the District of Columbia Circuit within 60 days from the date this
final action is published in the Federal Register. Filing a petition
for reconsideration by the Administrator of this final action does not
affect the finality of the action for the purposes of judicial review,
nor does it extend the time within which a petition for judicial review
must be filed, and shall not postpone the effectiveness of such rule or
action.

List of Subjects

40 CFR Part 70

    Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.

40 CFR Part 71

    Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

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

Sec.  70.6  [Amended]

0
2. In Sec.  70.6, remove paragraph (g).

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

0
3. The authority citation for part 71 continues to read as follows:

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

Sec.  71.6  [Amended]

0
4. In Sec.  71.6, remove paragraph (g).

[FR Doc. 2023-15067 Filed 7-20-23; 8:45 am]
BILLING CODE 6560-50-P