[Federal Register Volume 84, Number 82 (Monday, April 29, 2019)]
[Proposed Rules]
[Pages 17986-17993]
[FR Doc No: 2019-08480]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0770; FRL-9992-59-Region 6]

Withdrawal of Finding of Substantial Inadequacy of Implementation
Plan and of Call for Texas State Implementation Plan Revision--
Affirmative Defense Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed action.

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SUMMARY: The Environmental Protection Agency (EPA) Region 6 Regional
Administrator is considering an alternative interpretation regarding
affirmative defense provisions in State Implementation Plans (SIPs) of
states in EPA Region 6 that departs from the EPA's 2015 policy on this
subject. In accordance with the Federal Clean Air Act (Act or CAA), the
EPA Region 6 is proposing to make a finding that the affirmative
defense provisions in the SIP for the state of Texas applicable to
excess emissions that occur during certain upset events and unplanned
maintenance, startup, or shutdown activities are narrowly tailored and
limited to ensure protection of the National Ambient Air Quality
Standards (NAAQS) and other CAA requirements, and would be consistent
with the newly announced alternative interpretation if adopted.
Accordingly, the EPA Region 6 also is proposing to withdraw the SIP
call issued to Texas that was published on June 12, 2015.

DATES: Comments must be received on or before June 28, 2019.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0770 at https://www.regulations.gov or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact Mr. Alan Shar, (214) 665-
6691, [email protected]. For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at the EPA
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available at either location
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar,<PHONE_NUMBER>,
[email protected]. To inspect the hard copy materials, please schedule
an appointment with Mr. Shar.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, the following definitions apply:
    i. The word Act or initials CAA mean or refer to the Clean Air Act.
    ii. The term affirmative defense means, in the context of an
enforcement proceeding, a response or defense put forward by a
defendant, regarding which the defendant has the burden of proof, and
the merits of which are independently and objectively evaluated in a
judicial or administrative proceeding. The term affirmative defense
provision means more specifically a state law provision in a SIP that
specifies particular criteria or preconditions that, if met, would
purport to preclude a court from imposing monetary penalties or other
forms of relief for violations of SIP requirements in accordance with
CAA section 113 or CAA section 304.
    iii. The initials EPA mean or refer to the United States
Environmental Protection Agency.
    iv. The initials HAP mean Hazardous Air Pollutant.
    v. The initials MACT mean Maximum Achievable Control Technology.
    vi. The term Malfunction means a sudden and unavoidable breakdown
of process or control equipment.
    vii. The initials NAAQS mean National Ambient Air Quality
Standards.
    viii. The initials PSD mean Prevention of Significant
Deterioration.
    ix. The term EPA Region 6 refers to the United States Environmental
Protection Agency, Region 6, located in Dallas, Texas.
    x. The initials SIP mean State Implementation Plan.
    xi. The initials SNPR mean Supplemental Notice of Proposed
Rulemaking.
    xii. The word State means the state of Texas, unless the context
indicates otherwise.
    xiii. The term Shutdown means, generally, the cessation of
operation of a source.
    xiv. The initials SSM mean Startup, Shutdown, or Malfunction.
    xv. The term Startup means, generally, the setting in operation of
a source.
    xvi. The term TCEQ means the Texas Commission on Environmental
Quality.

Table of Contents

I. Summary of the Proposed Action
II. Background
    A. CAA Provisions Regarding State Implementation Plans
    B. The EPA's Past Policy Supporting Affirmative Defense
Provisions in State Implementation Plans
    C. The EPA's 2015 Reversal--Finding of Inadequacy and SIP Call
for Texas Regarding Affirmative Defense Provisions
    D. Texas's Petition for Reconsideration and Stay of EPA's 2015
Reversal Action
III. The EPA Region 6 Policy Under Consideration on Affirmative
Defense Provisions in SIPs
IV. Evaluation of the Affirmative Defense Provisions in the Texas
SIP
    A. Affirmative Defense Provisions in the Texas State
Implementation Plan
    B. Application of Region 6 Policy, if Adopted, to Affirmative
Defense Provisions in the Texas SIP
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Summary of the Proposed Action

    Today, the EPA Region 6 is proposing to find that the affirmative
defense provisions in Texas's SIP applicable to excess emissions that
occur during upsets (30 TAC 101.222(b)), unplanned events (30 TAC
101.222(c)), upsets with respect to opacity limits (30 TAC 101.222(d)),
and unplanned events with respect to opacity limits (30 TAC 101.222(e))
do not make Texas's SIP substantially inadequate to meet the
requirements of the Act. Accordingly, the EPA Region 6 is proposing to
withdraw its finding of substantial inadequacy with regard to Texas's
SIP and to withdraw the SIP call issued to Texas that was published on
June 12, 2015 (80 FR 33968-9).

II. Background

A. CAA Provisions Regarding State Implementation Plans

    In compliance with CAA section 110, every state has adopted and
from time to time revises a SIP to attain and maintain the national
ambient air quality standards (NAAQS).\1\ These plans must include
enforceable ``emission limitations and other control measures, means,
or techniques,'' as well as schedules and timetables for compliance, as
may be necessary or appropriate to meet the applicable requirements of
the CAA. If a SIP or SIP revision meets the applicable requirements of
the CAA, the EPA must approve it, at which point the state provisions
become federally enforceable.
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    \1\ The NAAQS are codified at 40 CFR part 50.
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    A state is required to revise its SIP in certain ways after certain
events specified in the CAA, including an ``infrastructure'' revision
after EPA promulgates a new or revised NAAQS and an ``attainment plan''
revision after EPA designates or redesignates an area under the state's
jurisdiction as nonattainment for a NAAQS. States also often initiate
revisions to their SIPs for other reasons (e.g., after the state has
issued revisions of state rules and regulations previously approved by
EPA for inclusion as part of the state's federally enforceable SIP).
The EPA evaluates each such state-initiated revision for compliance
with applicable CAA requirements.
    Section 110(k)(5) of CAA provides that the Administrator shall
require a state to submit a proposed revision to its SIP whenever the
Administrator determines that the SIP is substantially inadequate to
attain or maintain the relevant NAAQS, to mitigate adequately the
interstate transport of pollution, or to otherwise comply with any
requirement of the CAA. The CAA section 110(k)(5) process is commonly
referred to as a ``SIP Call.''
    EPA Region 6 proposes to withdraw the 2015 determination that the
Texas SIP is substantially inadequate because of the presence of
certain provisions that establish an affirmative defense as to civil
penalties for sources with emissions during upsets and unplanned
maintenance, startup and shutdown (MSS) activities that exceed
otherwise applicable emission limitations in the SIP (See 80 FR 33840,
June 12, 2015).

B. The EPA's Past Policy Supporting Affirmative Defense Provisions in
State Implementation Plans

    The EPA uses the term ``affirmative defense'' to mean a response or
defense put forward by a defendant in the context of an enforcement
proceeding, regarding which the defendant has the burden of proof, and
the merits of which are independently and objectively evaluated in a
judicial or administrative proceeding. The term ``affirmative defense
provision'' in the context of a SIP means, more specifically, a state
law provision in a SIP that specifies particular criteria or
preconditions that, if met, would purport to preclude a court from
imposing monetary penalties or other forms of relief for violations of
SIP requirements in accordance with CAA section 113 or CAA section 304.
    In 1999, the EPA provided states with non-binding guidance on the
subject of SIP provisions that established boundaries for affirmative
defenses for excess emissions relative to a SIP emission limitation.\2\
According to the 1999 Guidance, SIPs could contain affirmative defense
provisions as to civil penalties for excess emissions during startup,
shutdown, and malfunction events, but approvable affirmative defense
provisions in SIPs should be narrowly tailored and limited to ensure
protection of the NAAQS and meet other CAA requirements applicable to
SIPs. The EPA explained that ``the imposition of a [monetary] penalty
for excess emissions . . . caused by circumstances entirely beyond the
control of the owner or operator may not be appropriate.'' \3\ The EPA
explained that an approvable affirmative defense provision should
require that a defendant have the burden of proof to demonstrate
several enumerated criteria. One list of criteria was included for
startup and shutdown events, and a very similar list of criteria was
included for malfunction events. The 1999 Guidance also reiterated and
clarified other aspects of the EPA's guidance regarding how SIPs may
address startup, shutdown, and malfunction (SSM) events.
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    \2\ ``State Implementation Plans: Policy Regarding Excess
Emissions During Malfunctions, Startup, and Shutdown,'' Memorandum
from Steven A. Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, to EPA Regional Administrators, September 20,
1999 (1999 Guidance).
    \3\ Page 1 of the attachment to the 1999 Guidance.
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    As discussed further below, in 2013, the U.S. Court of Appeals for
the Fifth Circuit (Fifth Circuit) upheld the EPA's 2010 approval of an
affirmative defense as to civil penalties for excess emissions during
upsets and unplanned MSS activities (malfunctions) in the Texas SIP.
See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013, cert.
denied). Also in 2013, the EPA initiated an action partly in response
to an administrative petition filed by Sierra Club in 2011 requesting:
(1) That the EPA reexamine its CAA interpretation and guidance related
to SIP provisions for SSM events; and (2) that the EPA determine that
specific existing provisions in specific SIPs were inconsistent with
the CAA (SSM SIP Action).\4\ In the initial proposal for the SSM SIP
Action, the EPA proposed to continue to interpret the CAA to allow
affirmative defense provisions for malfunction events as in the 1999
Guidance,\5\ but to depart from that Guidance by interpreting the CAA
to preclude affirmative defense provisions

for planned startup and shutdown events. Applying this approach, the
EPA proposed to find that affirmative defense SIP provisions for
startup and shutdown events in a number of SIPs (but notably not
including Texas, whose SIP did not include an affirmative defense for
planned startup and shutdown events) caused those SIPs to be
substantially inadequate to meet CAA requirements, and the EPA proposed
to call on the affected states to revise those provisions.
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    \4\ 78 FR 12460 (Feb. 22, 2013).
    \5\ The EPA stated in our initial proposal that we believed that
a ``narrow affirmative defense for malfunction events'' was
permissible in SIP provisions. 78 FR 12470.
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    After the EPA's initial proposal for the SSM SIP Action, the U.S.
Court of Appeals for the District of Columbia Circuit (D.C. Circuit)
issued a decision regarding the legality of affirmative defense
provisions included in a certain national emission standard for
hazardous air pollutants (NESHAP) established under CAA section 112. In
NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), the D.C. Circuit reviewed
an affirmative defense provision in that NESHAP which made monetary
penalties unavailable where, in an enforcement proceeding, sources
could demonstrate that an emissions violation was due to an unavoidable
malfunction and met additional criteria.\6\ The D.C. Circuit vacated
the EPA's affirmative defense provision in that section 112 NESHAP,
holding that the CAA gives district courts sole authority in federal
enforcement proceedings to determine whether a penalty for a violation
of a section 112 NESHAP is appropriate.\7\
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    \6\ Id.
    \7\ Id. at 1063-64.
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    In the NRDC decision, the court stated that it was not confronted
with the decision of whether an affirmative defense may be appropriate
in a SIP and noted that the Fifth Circuit in Luminant had upheld the
EPA's approval of affirmative defenses as to civil penalties in the
Texas SIP.\8\
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    \8\ 749 F.3d at 1064 n.2 (citing Luminant Generation Co. v. EPA,
714 F.3d 841 (5th Cir. 2013, cert. denied)).
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    Following the NRDC decision, the EPA issued a supplemental notice
of proposed rulemaking (SNPR) for the SSM SIP Action reconsidering the
legal basis for affirmative defense provisions in CAA section 110
SIPs.\9\ In that notice, the EPA stated its view that the reasoning of
the D.C. Circuit in NRDC should extend to affirmative defense
provisions created by states in section 110 SIPs, that the EPA cannot
approve any such affirmative defense provision in a SIP, and that if
such an affirmative defense provision is included in an existing SIP,
the EPA has authority under section 110(k)(5) to require a state to
remove that provision. The EPA therefore reevaluated the affirmative
defense SIP provisions addressed in the original proposal (i.e., those
that had been identified in the Sierra Club petition) and the EPA
reviewed additional affirmative defense provisions in other states'
SIPs, including a provision in the Texas SIP that EPA had previously
approved, and that Luminant upheld, as described in more detail later
in this notice, that provided an affirmative defense as to civil
penalties for upsets and unplanned maintenance, startup, and shutdown
activities (functionally equivalent to malfunctions).\10\ In the
supplemental proposal, the Agency proposed to find that the affirmative
defense provisions in 17 states, including Texas, made those states'
SIPs substantially inadequate. The EPA proposed to issue SIP calls
pursuant to section 110(k)(5) for the SIPs with these provisions.\11\
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    \9\ 79 FR 55920, 55931-35 (Sept. 17, 2014).
    \10\ Id. at 55936.
    \11\ Id. at 55925. The count of 17 affected states includes some
ambiguous SSM SIP provisions that were not clearly affirmative
defense provisions but contained features of an affirmative defense.
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    The EPA issued an SSM SIP policy, including a position on
affirmative defenses, and finalized the SIP call for Texas and other
states on May 22, 2015.\12\ The EPA determined that affirmative defense
SIP provisions that operate to alter or eliminate federal courts'
jurisdiction to determine penalties for violations of SIP requirements
would undermine Congress's grant of jurisdiction and are inconsistent
with CAA requirements.\13\
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    \12\ 80 FR 33957-74 (June 12, 2015).
    \13\ 80 FR 33851-53.
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C. The EPA's 2015 Reversal--Finding of Inadequacy and SIP Call for
Texas Regarding Affirmative Defense Provisions

    As noted previously, on September 17, 2014, the EPA published a
SNPR concerning affirmative defense provisions in SIPs.\14\ In that
notice, the EPA identified 30 TAC 101.222(b)-(e) as problematic
affirmative defense provisions in the EPA-approved SIP for the state of
Texas. These provisions provide affirmative defenses as to civil
penalties for sources of excess emissions that occur during upsets
(section 101.222(b)), unplanned events (section 101.222(c)), upsets
with respect to opacity limits (section 101.222(d)), and unplanned
events with respect to opacity limits (section 101.222(e)).
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    \14\ See ``State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction; Supplemental Proposal To Address
Affirmative Defense Provisions in States Included in the Petition
for Rulemaking and in Additional State; Proposed Rule.'' 79 FR 55920
(Sept. 17, 2014).
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    In the same SNPR, the EPA acknowledged that it had approved these
affirmative defense provisions in 2010, after determining that they
were consistent with the Agency's interpretation of the CAA and its
recommendations for such provisions as expressed in the 1999 Guidance,
applicable at that point in time. Moreover, the SNPR noted that the EPA
successfully defended its approval of these specific provisions \15\
(as well as its disapproval of related provisions relevant to
affirmative defenses for planned events) in the Fifth Circuit in the
Luminant decision.
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    \15\ See 79 FR 55945, September 17, 2014.
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    On May 22, 2015 (See 80 FR 33840, published June 12, 2015), the EPA
finalized its SIP calls concerning treatment of excess emissions that
occur during periods of SSM.\16\ The final SIP calls required each
affected state, including Texas, to submit a corrective SIP revision
addressing the identified inadequacies no later than November 22,
2016.\17\
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    \16\ ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction; Final Rule.''
    \17\ June 12, 2015 (80 FR 33840).
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    On November 18, 2016, TCEQ submitted a SIP revision that included
rules stating that the SIP-called provisions in 30 TAC 101.222(b)-(e)
are applicable only to enforcement actions initiated by the state in
state courts and are not intended to limit a federal court's ability to
determine appropriate remedies. TCEQ conditioned this rule, however, as
taking effect only upon a final and nonappealable court decision that
upholds the 2015 SSM SIP Action.\18\ The EPA has not acted on the
state's November 18, 2016, submittal.
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    \18\ The 2015 SSM SIP Action has been challenged and is
currently being held in abeyance. See Envtl. Comm. of the Florida
Power Coordinating Group, et al. v. EPA (D.C. Cir., filed July 27,
2015, Case No. 15-239 and consolidated cases).
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D. Texas's 2017 Petition for Reconsideration and Stay of EPA's 2015
Reversal Action

    On March 15, 2017, former TCEQ Chairman Bryan W. Shaw submitted a
letter to the EPA petitioning the Agency to reconsider the 2015 Texas
SIP call and reinstate its prior interpretation (regarding affirmative
defenses for malfunctions) for proper enforcement of the CAA. TCEQ
requested that the EPA reconsider issues raised in the petition

and that the EPA stay implementation of the final rule's identification
of the affirmative defenses as to civil penalties in the Texas SIP as
inconsistent with the CAA pending reconsideration. On October 16, 2018,
after review of the issues raised, the Regional Administrator for EPA
Region 6 partially granted the petition, noting that the Region would
provide notice and an opportunity for public comment if the Agency
proposes changing the Texas SSM SIP call, but the Regional
Administrator did not respond to TCEQ's request for a stay. See letter
from the EPA Region 6 to TCEQ, dated October 16, 2018, included in the
docket for this action. In the process of partially granting TCEQ's
petition to reconsider the Texas SIP call, the Regional Administrator
sought and obtained concurrence from the relevant office in the EPA's
Office of Air and Radiation to potentially propose an action
inconsistent with the EPA's interpretation of affirmative defense
provisions contained in the 2015 SSM SIP Action when acting pursuant to
the reconsideration of the Texas SIP call. The EPA CAA regulations
allow an EPA Region to vary from a national policy such as the 2015 SSM
SIP policy when the Region has obtained a requisite EPA Headquarters
concurrence. See 40 CFR 56.5(b). TCEQ's petition and the concurrence
from the relevant office in the EPA's Office of Air and Radiation are
contained in the docket for this action.

III. The EPA Region 6 Policy Under Consideration on Affirmative Defense
Provisions in SIPs

    Upon further analysis, EPA Region 6 believes the policy position on
affirmative defense SIP provisions for malfunctions as upheld by the
Fifth Circuit's Luminant decision should be maintained and that it is
not appropriate to extend the D.C. Circuit's reasoning in NRDC to the
affirmative defense provisions in the Texas SIP. As the EPA
acknowledged in the 2015 SSM SIP Action, the CAA does not speak
directly to the question of whether affirmative defense provisions are
permissible in section 110 SIPs. See 80 FR 33856; see also, Luminant,
714 F.3d at 852-53 (determining that under Chevron step 1 the CAA
section 113 does not discuss whether a state may include an affirmative
defense in its SIP and ``turn[ing] to step two of Chevron'' in holding
that the Agency's interpretation of the CAA to allow certain
affirmative defenses as to civil penalties in SIPs was a ``permissible
interpretation of section [113], warranting deference''). Therefore,
Region 6 is considering finding that it has discretion to determine how
to reasonably interpret the statute to develop a policy on this issue
in a manner consistent with the precedent in the Fifth Circuit.\19\ The
D.C. Circuit's NRDC decision evaluated the validity of an affirmative
defense provision in an emission standard created by the EPA under CAA
section 112, and expressly reserved judgment regarding the same
question in the section 110 context in light of the ruling of its
sister circuit. ``The Fifth Circuit recently upheld EPA's partial
approval of an affirmative defense provision in a State Implementation
Plan. See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013).
We do not here confront the question whether an affirmative defense may
be appropriate in a State Implementation Plan.'' \20\ Therefore, the
NRDC decision did not foreclose EPA's ability to allow for affirmative
defense provisions in section 110 SIPs, particularly in light of the
Fifth Circuit's precedent upholding the EPA's prior approval of the
Texas provisions at issue here. Upon revisiting this issue and
consistent with the authority for EPA Regions to adopt a policy that
varies from national policy under the mechanism established by 40 CFR
56.5(b), EPA Region 6 is evaluating the particular relevance of the
Luminant decision and whether the NRDC decision has any application to
Region 6's SIP approvals under CAA section 110 in this context. EPA
Region 6 is considering finding that it may not be appropriate to
extend the reach of the NRDC decision to affirmative defense provisions
in section 110 SIPs in a manner inconsistent with the Luminant
decision.
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    \19\ E.g., Nat'l Cable & Telecomms. Ass'n v. Brand X internet
Servs., 545 U.S. 967 (2005); FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009); and Louisiana Envtl. Action Network v. EPA, 382
F.3d 575, 581-82 (5th Cir. 2004) (recognizing that a court's
reversal of EPA's interpretation of the CAA is warranted only where
an agency interpretation is contrary to ``clear congressional
intent.'') (quoting Chevron, 467 U.S. 837, 843 n.9 (1984)).
    \20\ NRDC, 749 F.3d at 1064 n.2.
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    The mechanisms established under section 112 of the CAA to control
air pollution are different than those under section 110 in significant
ways. NESHAP are developed by the EPA under CAA section 112. Under CAA
section 112, once a source category is listed for regulation pursuant
to CAA section 112(c), the statute directs EPA to use a specific and
exacting process to establish nationally-applicable, category-wide,
technology-based emissions standards under section 112(d). Under
section 112(d), EPA must establish emission standards for major sources
that ``require the maximum degree of reduction in emissions of the
hazardous air pollutants subject to this section'' that EPA determines
is achievable taking into account certain statutory factors. The EPA
refers to these rules as ``maximum achievable control technology'' or
``MACT'' standards. The MACT standards for existing sources must be at
least as stringent as the average emissions limitation achieved by the
best performing 12 percent of existing sources in the category (for
which the Administrator has emissions information) or the best
performing five sources for source categories with less than 30
sources. See CAA section 112(d)(3)(A) and (B). This level of minimum
stringency is referred to as the MACT floor. For new sources, MACT
standards must be at least as stringent as the control level achieved
in practice by the best controlled existing similar source. See CAA
section 112(d)(3). The EPA also must analyze more stringent ``beyond-
the-floor'' control options, which consider not only the maximum degree
of reduction in emissions of a hazardous air pollutant (HAP), but must
take into account costs, energy, and non-air quality health and
environmental impacts when doing so.
    In contrast, SIPs are developed by the states under CAA section 110
and reflect the Clean Air Act's core principle of cooperative
federalism. See Michigan v. EPA, 268 F.3d 1075, 1083 (D.C. Cir. 2001);
42 U.S.C. 7401(a)(3) and (4). Section 110 affords broad discretion to
states in how to develop and implement air emission controls after the
federal government establishes NAAQS to be achieved. For example, in
determining which emissions limits and other control measures to
incorporate into SIPs, CAA section 110(a)(2)(A) provides states with
flexibility to decide the specific controls that ``may be necessary and
appropriate'' to meet the Act's requirements. This flexibility, and
state discretion, under section 110 has been acknowledged repeatedly by
the EPA in its actions and in court decisions on those Agency
actions.\21\ While CAA

section 110 functions within a cooperative federalism system in which
states propose plans to attain and maintain the NAAQS and the EPA
determines whether their specific plans comply with the Act's
requirements, see 42 U.S.C. 7410(k)(4), CAA section 112 on the other
hand strictly prescribes how the EPA must establish federal emission
limitations for a specific class of sources which states have little
flexibility in how to implement.
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    \21\ E.g., Train v. NRDC, 421 U.S. 60, 79 (1975) (``Under Sec.
110(a)(2), the Agency is required to approve a State plan which
provides for the timely attainment and subsequent maintenance of
ambient air standards, and which also satisfies that section's
general requirements. The Act gives the Agency no authority to
question the wisdom of a State's choices of emission limitations if
they are part of a plan which satisfies the standards of Sec.
110(a)(2). . . . Thus, so long as the ultimate effect of a State's
choice of emission limitations is compliance with the national
standards for ambient air, the State is at liberty to adopt whatever
mix of emission limitations it deems best suited to its particular
situation.''); CleanCOALition v. TXU Power, 536 F.3d 469, 472 n.3
(5th Cir. 2008) (``EPA has no authority to question the wisdom of a
State's choices of emission limitations if they are part of a SIP
that otherwise satisfies the standards set forth in 42 U.S.C.
7410(a)(2).'').
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    In addition, the EPA's role, with respect to a SIP revision, is
focused on reviewing the submission to determine whether it meets the
minimum criteria of the CAA, and, where it does, EPA must approve the
submission. In the context of a SIP, the EPA is not establishing its
own requirements for the state to implement. CAA section 110(a)(2)(A)-
(B) requires states to submit SIPs with emission limits and other
controls necessary to meet CAA requirements, and CAA section
110(a)(2)(C) requires SIPs to include ``a program to provide for the
enforcement'' of those emision control measures. In light of the
inherent flexibility established by Congress in CAA section 110 for
NAAQS implementation, for Region 6 to approve a state's SIP submission
that contains an affirmative defense provision that is adequately
protective and does not interfere with any applicable requirement of
the CAA may be an appropriate recognition that states have latitude to
define in their SIPs what constitutes an enforceable emission
limitation, so long as the SIP meets all applicable CAA requirements.
See 42 U.S.C. 7407(a) (States have the primary responsibility for
assuring air quality within the state by submitting a SIP ``which will
specify the manner in which national primary and secondary ambient air
quality standards will be achieved and maintained. . .'').
    These differences in scope and relative balance of state and
federal authority between CAA sections 110 and 112 suggest that the
D.C. Circuit's reasoning with respect to limits on federal agency
authority under the latter does not address the distinct question of
whether a state may deem affirmative defense provisions to be an
appropriate part of their overall NAAQS maintenance strategy for
inclusion in their SIP submissions to EPA. In further considering this
issue and consistent with the above discussion, EPA Region 6 believes
that the application of the D.C. Circuit's reasoning in the NRDC
decision may be particularly inappropriate in this circumstance where,
as noted in the NRDC decision, the EPA's approval of the Texas SIP
provision at issue was upheld by the Fifth Circuit. In its 2014
supplemental proposal, when it applied the reasoning of NRDC in the SIP
context, the EPA may have given insufficient weight to the fact that
the Texas SIP provisions had been upheld by the Fifth Circuit. In the
Luminant case, the environmental petitioners raised the same basic
argument that was key to the D.C. Circuit's NRDC holding: Environmental
petitioners argued that the EPA's approval of the Texas affirmative
defense SIP provision conflicts with the CAA's provision that, in the
case of EPA enforcement and citizen suits, a federal district court
``shall have jurisdiction'' to assess a ``civil penalty.'' 42 U.S.C.
7413(b); 7604(a). The Fifth Circuit, however, upheld as ``neither
contrary to law nor in excess of [EPA's] statutory authority'' the
EPA's position that the Texas provision at issue here is narrowly
tailored and consistent with the penalty assessment criteria in CAA
section 113(e).\22\ See also 42 U.S.C. 7410(a)(2)(C) (requiring states
to include a program for the enforcement of control measures as
necessary and appropriate to meet applicable CAA requirements).
---------------------------------------------------------------------------

    \22\ Luminant, 714 F.3d at 853. Other circuit courts have also
upheld affirmative defense provisions promulgated by the Agency as
part of federal implementation plans, which the EPA promulgates when
a state has failed to provide a SIP that satisfies the minimum CAA
requirements. Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174
(9th Cir. 2012); Arizona Public Service Co. v. EPA, 562 F.3d 1116
(10th Cir. 2009).
---------------------------------------------------------------------------

    EPA Region 6 believes that the best policy may be to permit certain
affirmative defense provisions in the section 110 SIPs of states in
Region 6, consistent with the Luminant decision, and invites comment on
this issue. Consistent with the discussion above, EPA Region 6 believes
that it may be inappropriate to impose a civil penalty on sources for
sudden and unavoidable emissions caused by circumstances beyond the
control of the owner or operator. EPA Region 6 recognizes that even
equipment that is properly designed and maintained can sometimes fail.
Further, because the specific affirmative defense provisions at issue
herein apply to excess emissions that cannot be avoided by a source
operator, removing these affirmative defense provisions from SIPs will
not reduce emissions and therefore would not result in an environmental
or public health or welfare benefit. Therefore, EPA Region 6 is
considering adopting a policy that affirmative defense provisions are
generally permissible in SIPs when they are adequately protective and
do not interfere with any applicable requirement of the CAA and invites
comment on this issue. 42 U.S.C. 7410(k)(3) and (l).

IV. Evaluation of the Affirmative Defense Provisions in the Texas SIP

    As outlined in the previous section, and consistent with the
Luminant decision, EPA Region 6 is considering reinstating EPA's policy
that affirmative defense provisions in the SIPs are generally
approvable in states in Region 6. EPA Region 6 believes that
affirmative defense SIP provisions may be generally permissible when
they are adequately protective and do not interfere with any applicable
requirement of the CAA. As mentioned above, a state's authority to
establish an enforceable emission limitation in its SIP under CAA
section 110(a)(2) includes the authority to establish an emission
limitation that includes an affirmative defense as to civil penalties.
Upon analyzing 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d)
and 30 TAC 101.222(e), EPA Region 6 is proposing to determine that
these provisions are adequately protective and do not interfere with
any applicable requirement of the CAA and therefore are permissible
affirmative defense SIP provisions if EPA Region 6 adopts the new
policy under consideration as outlined in section III.

A. Affirmative Defense Provisions in the Texas State Implementation
Plan

    Under the Texas SIP, the regulation and control of emissions
occurring during startups, shutdowns and malfunctions has evolved over
time.\23\ Upsets and unplanned maintenance, startup, and shutdown (MSS)
activities are equivalent to malfunctions, and the affirmative defense
provisions governing emissions during those periods are the subject of
this proposed rulemaking. In 2005, Texas revised its excess emissions
regulations.\24\ In particular, the revised regulations included
narrowly tailored and limited affirmative defenses to civil penalties
for excess emissions during ``upsets'' and ``unplanned MSS activities''
at Texas facilities. See 30 TAC 101.222(b)-(e). Texas submitted these
provisions to the EPA on June 23, 2006, and the EPA

approved them into the Texas SIP in 2010. See 75 FR 68989 (Nov. 10,
2010). The EPA's approval of these provisions as a revision to the
Texas SIP was challenged but ultimately upheld. See Luminant Generation
Co. v. EPA, 714 F.3d 841 (5th Cir. 2013, cert. denied). In 2015, in the
final SSM SIP Action as discussed above, the EPA determined, based on
NRDC, that these previously approved and upheld affirmative defense
provisions for malfunctions (upsets and unplanned MSS activities) were
inconsistent with the CAA and thus the Texas SIP was substantially
inadequate, and the EPA called on Texas to remove 30 TAC 101.222(b)-(e)
from the Texas SIP. This action proposes to withdraw the 2015 Texas SIP
call, and thereby leave in place the EPA's 2010 approval of the Texas
SIP provisions related to affirmative defenses as to civil penalties
for excess emissions during upsets and unplanned MSS activities.
---------------------------------------------------------------------------

    \23\ See Luminant Generation Co. v. EPA, 714 F.3d 841, 847-849;
see also, Part II.A ``TCEQ's Excess Emissions History,'' Comments by
the Texas Commission on Environmental Quality Regarding State
Implementation Plans, at 4-9 (November 5, 2014), EPA Docket ID No.
EPA-HQ-OAR-2012-0322, Document No. 0936.
    \24\ See 30 Tex. Reg. 8884 (December 30, 2005).
---------------------------------------------------------------------------

    According to 30 TAC 101.222(b), which is applicable to emission
limits in the Texas SIP other than opacity limits, an affirmative
defense as to civil penalties is available for all claims in
enforcement actions concerning ``upset events'' that are determined not
to be excessive emissions events \25\ other than claims for
administrative technical orders and actions for injunctive relief, for
which the owner or operator proves all of the following:
---------------------------------------------------------------------------

    \25\ To determine whether an emissions event or emissions events
are excessive, the following factors are evaluated: (1) The
frequency of the facility's emissions events; (2) the cause of the
emissions event; (3) the quantity and impact on human health or the
environment of the emissions event; (4) the duration of the
emissions event; (5) the percentage of a facility's total annual
operating hours during which emissions events occur; and (6) the
need for startup, shutdown, and maintenance activities. See 30 TAC
101.222(a). The current EPA-approved Texas SIP does not provide any
affirmative defense for an emissions event or emissions events that
are determined to be excessive emission events. Such events are
required to have a corrective action plan developed and are subject
to a penalty action.
---------------------------------------------------------------------------

    ``(1) the owner or operator complies with the requirements of Sec.
101.201 of this title (relating to Emissions Event Reporting and
Recordkeeping Requirements). In the event the owner or operator fails
to report as required by Sec.  101.201(a)(2) or (3), (b), or (e) of
this title, the commission will initiate enforcement for such failure
to report and for the underlying emissions event itself. This
subsection does not apply when there are minor omissions or
inaccuracies that do not impair the commission's ability to review the
event according to this rule, unless the owner or operator knowingly or
intentionally falsified the information in the report;
    (2) the unauthorized emissions were caused by a sudden, unavoidable
breakdown of equipment or process, beyond the control of the owner or
operator;
    (3) the unauthorized emissions did not stem from any activity or
event that could have been foreseen and avoided or planned for, and
could not have been avoided by better operation and maintenance
practices or technically feasible design consistent with good
engineering practice;
    (4) the air pollution control equipment or processes were
maintained and operated in a manner consistent with good practice for
minimizing emissions and reducing the number of emissions events;
    (5) prompt action was taken to achieve compliance once the operator
knew or should have known that applicable emission limitations were
being exceeded, and any necessary repairs were made as expeditiously as
practicable;
    (6) the amount and duration of the unauthorized emissions and any
bypass of pollution control equipment were minimized and all possible
steps were taken to minimize the impact of the unauthorized emissions
on ambient air quality;
    (7) all emission monitoring systems were kept in operation if
possible;
    (8) the owner or operator actions in response to the unauthorized
emissions were documented by contemporaneous operation logs or other
relevant evidence;
    (9) the unauthorized emissions were not part of a frequent or
recurring pattern indicative of inadequate design, operation, or
maintenance;
    (10) the percentage of a facility's total annual operating hours
during which unauthorized emissions occurred was not unreasonably high;
and
    (11) the unauthorized emissions did not cause or contribute to an
exceedance of the national ambient air quality standards (NAAQS),
prevention of significant deterioration (PSD) increments, or to a
condition of air pollution.'' \26\
---------------------------------------------------------------------------

    \26\ Texas Health and Safety Code, Title 5. Sanitation and
Environmental Quality, Subtitle C. Air Quality, Chapter 382. Clean
Air Act, Subchapter A. General Provisions, Section 382.003(1)(C)(3)
defines Air Pollution to mean ``the presence in the atmosphere of
one or more air contaminants or combination of air contaminants in
such concentration and of such duration that: (A) Are or may tend to
be injurious to or to adversely affect human health or welfare,
animal life, vegetation, or property; or (B) interfere with the
normal use or enjoyment of animal life, vegetation, or property.''
---------------------------------------------------------------------------

    The EPA approved 30 TAC 101.222(b) as a revision to the Texas SIP
in 2010 because it determined that this provision provides a narrowly
tailored affirmative defense as to civil penalties for excess emissions
during an upset event, which the EPA considered equivalent to a
malfunction event, that was consistent with the interpretation of the
CAA as set forth in the 1999 Guidance. In particular, these affirmative
defense provisions only concerned civil penalties for violations
involving excess emissions during certain defined activities and did
not preclude actions seeking injunctive relief. In addition, the
criteria include a requirement that the unauthorized emissions did not
cause or contribute to an exceedance of a NAAQS, PSD increment, or a
condition of air pollution. As stated above, excess emissions were
subject to reporting requirements and an analysis that such emissions
were not excessive. See 30 TAC 101.201 (relating to emission event
reporting and recordkeeping requirements) and 30 TAC 101.222(a)
(relating to excessive emission event determinations). Excess emissions
determined to be excessive triggered penalty and corrective action plan
requirements.
    In the Texas SIP, 30 TAC 101.222(d) provides the same affirmative
defense terms for upset events related to SIP opacity limits. The EPA
approved 30 TAC 101.222(d) for the same reasons as it approved 30 TAC
101.222(b). Also, the Texas SIP includes 30 TAC 101.222(c) and
101.222(e) that provide similar affirmative defenses as to civil
penalties for unplanned MSS activities that arise from sudden and
unforeseeable events beyond the control of the operator that require
immediate corrective action to minimize or avoid an upset or
malfunction. These provisions allow an affirmative defense as to civil
penalties where the source owner or operator has the burden to prove
that such unplanned activities arose from sudden or unforeseeable
events beyond the control of the operator, that immediate corrective
action was required to minimize or avoid an upset or malfunction, and
that the criteria in section 101.222(c) or (e) have been met. In
approving the provisions into the SIP, the EPA agreed that Texas's
treatment of unplanned MSS is functionally equivalent to EPA's 1999
Guidance definition of malfunction. The EPA approved these two
provisions for the same reasons it approved 30 TAC 101.222(b) and
101.222(d), interpreting unplanned MSS to mean maintenance or shutdown
related to a malfunction. A copy of 30 TAC 101.222 showing the specific
terms for all four affirmative defense-related

provisions is available in the docket for this action.\27\
---------------------------------------------------------------------------

    \27\ In the November 2010 action, the EPA also approved 30 TAC
Chapter 101, Subchapter A, revised section 101.1 (Definitions); and
Subchapter F, revised sections 101.201 (Emissions Event Reporting
and Recordkeeping Requirements) and 101.211 (Scheduled Maintenance,
Startup, and Shutdown Reporting and Recordkeeping Requirements), and
new sections 101.221 (Operational Requirements), 101.222 (a) through
(g) (Demonstrations), and 101.223 (Actions to Reduce Excessive
Emissions).
---------------------------------------------------------------------------

    The EPA-approved Texas SIP also includes 30 TAC 101.222(f) and (g)
which establish certain restrictions on the applicability of the
affirmative defenses as to civil penalties in 30 TAC Sec.  101.222(b)
through (e). For example, 30 TAC 101.222(f) states that the affirmative
defense provisions do not remove any obligations to comply with any
other existing permit, rule, or order provisions that are applicable to
an emissions event or a maintenance, startup or shutdown activity, and
that the affirmative defense provisions only apply to violations of SIP
requirements, not to violations of federally promulgated performance or
technology based standards, such as those found in 40 CFR parts 60, 61,
and 63. Under 30 TAC 101.222(g), evidence of any past event subject to
a possible affirmative defense is also admissible and relevant to
demonstrate a frequent or recurring pattern of events which could
preclude the successful assertion of the affirmative defense.

B. Application of Region 6 Policy, if Adopted, to Affirmative Defense
Provisions in the Texas SIP

    The identified provisions in 30 TAC 101.222(b)-(e) provide an
affirmative defense for non-excessive upset and unplanned events, which
are equivalent to the term malfunction used in EPA's 1999 Guidance. If
a violation during an upset or unplanned MSS activity (malfunction) is
found not to be ``excessive,'' additional specified criteria are met
(including a demonstration that the unauthorized emissions ``did not
cause or contribute to an exceedance of the NAAQS, PSD increments, or a
condition of air pollution''), and the unauthorized emissions ``could
not have been prevented through planning and design,'' then the
affirmative defense as to civil penalties is available. 30 TAC
101.222(b)-(e). Even if all required criteria are met and the owner or
operator establishes the applicability of the approved affirmative
defense, the excess emissions are still a violation of the underlying
emission limit and injunctive relief is still available. See 75 FR
68991, footnote # 4.
    As first outlined in the action initially approving these
provisions into Texas's SIP in 2010, the EPA explained that section
101.222(b) is consistent with EPA's 1999 Guidance for the following
reasons:

    ``(1) The rule does not provide an exemption from compliance
with applicable emission limitations; (2) The affirmative defense
provided is limited to upset or malfunctions; (3) The affirmative
defense applies only to a judicial or administrative enforcement
action for a violation of applicable emission limitations; (4) The
defense applies only to civil penalties and cannot be asserted for
an enforcement action for injunctive relief; (5) The rule specifies
criteria, which must be met in order to assert the defense that are
consistent with those outlined in EPA's 1999 Policy; (6) The burden
to prove that the criteria have been met is on the owner or
operator; (7) A determination by TCEQ that the criteria have been
met does not constitute a waiver of liability for the violation; (8)
Nothing in the rule, including a determination by the TCEQ, would
bar EPA or a citizen suit enforcement action for the emission
violation; (9) The affirmative defense cannot be asserted where the
unauthorized emissions cause or contribute to an exceedance of the
NAAQS, PSD increments or to a condition of air pollution; (10) The
affirmative defense may not be asserted against Federal performance
or technology-based standards such as NSPS or NESHAP; (11) The
affirmative defense may not be asserted where the Executive Director
of TCEQ determines that the emissions event is excessive under the
criteria in section 101.222(a); and (12) The emissions event must be
reported to TCEQ under section 101.201 in order for the owner or
operator to assert the affirmative defense.''

75 FR 26892, 26895 (May 13, 2010).

    EPA further explained that sections 101.222(c) and 101.222(e)
provide a similar affirmative defense for unplanned maintenance,
startup or shutdown activities that arise from sudden and unforeseeable
events beyond the control of the operator that require immediate
corrective action to minimize or avoid an upset or malfunction. The EPA
determined that ``unplanned maintenance, startup, or shutdown''
activity is functionally equivalent to EPA's 1999 Guidance definition
of a malfunction. Similar to section 101.222(b), the provisions in
sections 101.222(c) and 101.222(e) places the burden of proof on a
source or operator to show that maintenance activities undertaken arose
from sudden and unforeseeable events beyond the control of the
operator, that immediate corrective action was required to minimize or
avoid an upset or malfunction and that outlined criteria, which are
consistent with EPA's 1999 Guidance, have been met. Id. at 26895-96.
    Finally, the EPA explained that section 101.222(d), which concerns
excess opacity events for non-excessive upset emission events, contains
affirmative defense criteria that are specifically tailored for
opacity-related activities, but follow the pattern of criteria in
101.222(b). Id. at 26896. Therefore, the EPA determined that the
criteria in section 101.222(d) were also consistent with our
interpretation of the Act as outlined in EPA's 1999 Guidance.
    EPA Region 6 is reaffirming all of the above outlined findings from
the 2010 action. EPA Region 6 has determined that these SIP provisions
are narrowly tailored to address unavoidable, excess emissions and are
consistent with the penalty assessment criteria set forth in CAA
section 113(e). As outlined in section III, EPA Region 6 is considering
an interpretation that narrowly tailored affirmative defense provisions
are consistent with CAA requirements in provisions like Texas's where
the affirmative defense as to civil penalties applies to upset or
malfunction events. An effective enforcement program must be able to
collect penalties to deter avoidable violations. 42 U.S.C. 7413.
However, sources may, despite good operating practices, suffer a
malfunction due to events beyond the control of the owner or operator
and be unable to meet emission limitations during periods of startup
and shutdown. For this reason, EPA Region 6 proposes to determine that
affirmative defense SIP provisions like those in the Texas SIP, which
provide a narrowly tailored affirmative defense as to civil penalties
for circumstances where it is infeasible to meet the applicable limit
and the source must prove that the source has made all reasonable
efforts to comply, are consistent with CAA requirements. See Luminant,
714 F.3d at 852 (upholding the EPA approval of these Texas provisions);
42 U.S.C. 7410(k)(3) and (l), 7413(e) and 7604(a).
    Based on the above analysis, EPA Region 6 is proposing to reinstate
its determination that 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC
101.222(d) and 30 TAC 101.222(e) are adequately protective and do not
interfere with any applicable requirement of the CAA such that they are
permissible affirmative defense SIP provisions consistent with the new
EPA Region 6 policy outlined in section III, if adopted. In today's
proposed action, we are addressing only the affirmative defense
provisions in the Texas SIP.

V. Proposed Action

    EPA Region 6 is proposing to find that the affirmative defense
provisions in the Texas SIP applicable to excess

emissions that occur during upsets (30 TAC 101.222(b)), unplanned
events (30 TAC 101.222(c)), upsets with respect to opacity limits (30
TAC 101.222(d)), and unplanned events with respect to opacity limits
(30 TAC 101.222(e)) do not make the Texas SIP substantially inadequate
to meet the requirements of the Act. Accordingly, EPA Region 6 is
proposing to withdraw the SIP call issued to Texas as part of the 2015
SSM SIP Action. If EPA Region 6 finalizes this action as proposed,
Texas will no longer have an obligation to submit a SIP revision
addressing its existing affirmative defense SIP provisions in the
absence of the SIP call. Texas may choose to withdraw the SIP revision
it submitted in November 2016 in response to the SIP call, on which the
EPA has not proposed nor taken action to approve or disapprove.

VI. Statutory and Executive Order Reviews

    Under the Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the Act. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the
SIP is not approved to apply on any Indian reservation land or in any
other area where EPA or an Indian tribe has demonstrated that a tribe
has jurisdiction. In those areas of Indian country, the proposed rule
does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting
and recordkeeping requirements, Volatile organic compounds.

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

    Dated: April 23, 2019.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2019-08480 Filed 4-26-19; 8:45 am]
ILLING CODE 6560-50-P


[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Rules and Regulations]
[Pages 55255-55258]
[FR Doc No: 2018-23775]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2018-0216; Product Identifier 1988-ANE-18-AD; Amendment
39-19474; AD 2018-22-01]
RIN 2120-AA64

Airworthiness Directives; Honeywell International Inc. Turboprop
Engines

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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

SUMMARY: We are superseding Airworthiness Directive (AD) 88-12-10 for
certain Honeywell International Inc. (Honeywell) TPE331 turboprop
engines. AD 88-12-10 required reducing the life limit for certain
second stage turbine rotors. This AD requires removing certain second
stage turbine rotors from service at a reduced life limit. This AD was
prompted by report that a TPE331-11U engine experienced an uncontained
rotor separation. In addition, cracks were discovered through eddy
current inspection (ECI) in the bore of the second stage turbine rotor
assembly after publication of AD 88-12-10. We are issuing this AD to
address the unsafe condition on these products.

DATES: This AD is effective December 10, 2018.

ADDRESSES: For service information identified in this final rule,
contact Honeywell International Inc., 111 S 34th Street, Phoenix, AZ
85034-2802; phone:

800-601-3099; internet: https://myaerospace.honeywell.com/wps/portal.
You may view this service information at the FAA, Engine and Propeller
Standards Branch, 1200 District Avenue, Burlington, MA 01803. For
information on the availability of this material at the FAA, call 781-
238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-
0216.

Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-
0216; or in person at Docket Operations between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. The AD docket contains
this final rule, the regulatory evaluation, any comments received, and
other information. The address for Docket Operations (phone: 800-647-
5527) is Document Operations, U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Joseph Costa, Aerospace Engineer, Los
Angeles ACO Branch, FAA, 3960 Paramount Blvd., Lakewood, CA 90712-4137;
phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email: [email protected].

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 to supersede AD 88-12-10, Amendment 39-5910 (53 FR 19766, May
31, 1988), (``AD 88-12-10''). AD 88-12-10 applied to Honeywell TPE331-
10, -10R, -10U, -10UA, -10UF, -10UG, -10UGR, -10UR, and -11U turboprop
engines equipped with 2nd stage turbine rotors, part numbers 3102106-1,
-6, and -8, installed. The NPRM published in the Federal Register on
June 20, 2018 (83 FR 28550). The NPRM was prompted by a report that a
TPE331-11U engine installed on an M7 Aerospace LP SA227 airplane
experienced an uncontained rotor separation. In addition, cracks were
discovered through ECI in the bore of the second stage turbine rotor
assembly after publication of AD 88-12-10. The NPRM proposed to remove
certain second stage turbine rotors from service at a reduced life
limit. We are issuing this AD to address the unsafe condition on these
products.

Comments

    We gave the public the opportunity to participate in developing
this AD. The following presents the comments received on the NPRM and
the FAA's response to each comment.

Request To Revise Compliance Times

    Honeywell requested that we remove from the NPRM the statement that
the FAA finds that allowing an additional 100 cycles-in-service before
their removal provides a sufficient level of safety for applicable
second stage turbine rotors that have been in service for 30 years
after the publication of AD 88-12-10. Honeywell indicated it believes
that most of the IN100 rotors have been replaced at around 3,500 cycles
during hot section inspection. Honeywell noted that the rotors would
not make it to the next hot section inspection with a life of 4,800
cycles. Honeywell noted that there is a not a lot of field experience
for IN100 rotors beyond 3,500 cycles.
    Honeywell commented that the removal schedule in the Honeywell
service bulletin needs to remain the same (within 100 cycles-in-service
for 3,301 to 4,000 cycles since new (CSN) rotors and within 50 cycles-
in-service for 4,001 to 4,800 CSN rotors) since the event rotor failed
at around 4,100 cycles. Additionally, Honeywell has also found rotors
through eddy current inspection that had long cracks at around 4,300
cycles.
    We disagree. We would normally only require removal of parts within
50 cycles-in-service after the effective date of an AD when the risk
justifies immediate action. The FAA assessed the risk of the affected
rotors based on service experience and IN100 rotor propagation life of
cracked and failed rotors. We found that the additional cycles in
service allowed by this AD before the removal of the second stage
turbine rotors provides an acceptable level of safety. We did not
change this AD.

Conclusion

    We reviewed the relevant data, considered the comment received, and
determined that air safety and the public interest require adopting
this AD as proposed.

Related Service Information

    We reviewed Honeywell Service Bulletin (SB) TPE331-72-A2319,
Revision 0, dated April 25, 2018, and TPE331-72-A2310, Revision 0,
dated January 26, 2018. These SBs describe procedures for replacement
of the second stage turbine rotor assembly installed on TPE331-8, -10,
-10N, -10R, -10U, -10UA, -10UF, -10UG, -10UGR, -10UR, and -11U model
engines.

Costs of Compliance

    We estimate that this AD affects 100 engines installed on airplanes
of U.S. registry.
    We estimate that 20 commercial engines and 80 general aviation
engines will need this turbine rotor replacement to comply with this
AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per      Cost on U.S.
                Action                         Labor cost           Parts cost        product        operators
----------------------------------------------------------------------------------------------------------------
Scheduled rotor replacement...........  1 work-hour x $85 per             $7,500          $7,585        $379,250
                                         hour = $85.
Unscheduled rotor replacement.........  41 work-hours x $85 per            7,500          10,985         549,250
                                         hour = $3,485.
----------------------------------------------------------------------------------------------------------------

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, Section 106, describes the
authority of the FAA Administrator. Subtitle VII, Aviation Programs,
describes in more detail the scope of the Agency's authority.
    We are issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701, ``General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.
    This AD is issued in accordance with authority delegated by the
Executive Director, Aircraft Certification Service,

as authorized by FAA Order 8000.51C. In accordance with that order,
issuance of ADs is normally a function of the Compliance and
Airworthiness Division, but during this transition period, the
Executive Director has delegated the authority to issue ADs applicable
to engines, propellers, and associated appliances to the Manager,
Engine and Propeller Standards Branch, Policy and Innovation Division.

Regulatory Findings

    We have determined that this AD will not have federalism
implications under Executive Order 13132. This AD will not have a
substantial direct effect 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.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979),
    (3) Will not affect intrastate aviation in Alaska, and
    (4) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by removing Airworthiness Directive (AD)
88-12-10, Amendment 39-5910 (53 FR 19766, May 31, 1988), and adding the
following new AD:

2018-22-01 Honeywell International Inc. (Type Certificate previously
held by AlliedSignal Inc., Garrett Engine Division; Garrett Turbine
Engine Company; and AiResearch Manufacturing Company of Arizona):
Amendment 39-19474; Docket No. FAA-2018-0216; Product Identifier
1988-ANE-18-AD.

(a) Effective Date

    This AD is effective December 10, 2018.

(b) Affected ADs

    This AD replaces AD 88-12-10, Amendment 39-5910 (53 FR 19766,
May 31, 1988).

(c) Applicability

    This AD applies to Honeywell International Inc. (Honeywell)
TPE331-8, -10, -10N, -10R, -10U, -10UA, -10UF, -10UG, -10UGR, -10UR,
and -11U turboprop engines with second stage turbine rotor
assemblies, part number (P/Ns) 3102106-1, -6, and -8 or P/N 3101514-
1, -10 and -12, installed.

(d) Subject

    Joint Aircraft System Component (JASC) Code 7250, Turbine
Section.

(e) Unsafe Condition

    This AD was prompted by a report that a TPE331-11U engine
installed on an M7 Aerospace LP SA227 airplane experienced an
uncontained rotor separation and the discovery of cracks in the bore
of the second stage turbine rotor assembly after publication of AD
88-12-10. We are issuing this AD to prevent failure of the second
stage turbine rotor. The unsafe condition, if not addressed, could
result in uncontained release of the second stage turbine rotor,
damage to the engine, and damage to the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Required Actions

    (1) Remove from service the applicable second stage turbine
rotor assembly, P/Ns 3102106-1, -6 and -8, according to the schedule
in Table 1 to Paragraph (g)(1) of this AD:

Table 1 to Paragraph (g)(1) of This AD--Removal of Second Stage Rotor, P/
                         Ns 3102106-1, -6 and -8
------------------------------------------------------------------------
 Second stage turbine rotor cycles
 since new (CSN) on the effective             Removal schedule
          date of the AD
------------------------------------------------------------------------
0 to 2,600........................  Prior to 3,000 CSN.
2,601 to 3,300....................  Within 400 cycles-in-service (CIS)
                                     after the effective date of this AD
                                     or 3,600 CSN, or at next access,
                                     whichever occurs first.
3,301 to 4,000....................  Within 200 cycles-in-service after
                                     the effective date of this AD or
                                     4,100 CSN, or at next access,
                                     whichever occurs first.
4,001 to 4,800....................  Within 100 cycles-in-service after
                                     the effective date of this AD or
                                     4,800 CSN, or at next access,
                                     whichever occurs first.
------------------------------------------------------------------------

    (2) Remove from service the applicable second stage turbine rotor
assembly, P/Ns 3101514-1, -10 and -12, per the schedule in Table 2 to
Paragraph (g)(2) of this AD:

 Table 2 to Paragraph (g)(2) of This AD--Removal of Second Stage Rotors,
                       P/Ns 3101514-1, -10 and -12
------------------------------------------------------------------------
 Second stage turbine rotor CSN on
   the effective date of the AD               Removal schedule
------------------------------------------------------------------------
0 to 2,600........................  Prior to 3,000 CSN.
2,601 to 3,200....................  Within 400 CIS after the effective
                                     date of this AD or 3,600 CSN, or at
                                     next access, whichever occurs
                                     first.
3,201 to 3,800....................  Within 200 CIS after the effective
                                     date of this AD or 4,100 CSN, or at
                                     next access, whichever occurs
                                     first.
3,801 to 4,400....................  Within 100 CIS after the effective
                                     date of this AD or 4,400 CSN, or at
                                     next access, whichever occurs
                                     first.
------------------------------------------------------------------------

(h) Definition

    For the purpose of this AD, ``next access'' is defined as when
the applicable second stage turbine rotor assembly is removed from
the engine.

(i) Installation Prohibition

    As of the effective date of this AD, do not install second stage
turbine rotor assemblies, P/Ns 3102106-1, -6, and -8 and P/Ns
3101514-1, -10, and -12 on any engine.

(j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles ACO, FAA, has the authority to
approve AMOCs for this AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request
to your principal inspector or local Flight Standards District
Office, as appropriate. If sending information directly to the
manager of the certification office, send it to the attention of the
person identified in paragraph (k) of this AD. You may email your
request to: [email protected].
    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.

(k) Related Information

    For more information about this AD, contact Joseph Costa,
Aerospace Engineer, Los Angeles ACO Branch, FAA, 3960 Paramount
Blvd., Lakewood, CA 90712-4137; phone:<PHONE_NUMBER>; fax: 562-627-
5210; email: [email protected].

(l) Material Incorporated by Reference

    None.

    Issued in Burlington, Massachusetts, on October 23, 2018.
Karen M. Grant,
Acting Manager, Engine and Propeller Standards Branch, Aircraft
Certification Service.
[FR Doc. 2018-23775 Filed 11-2-18; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)]
[Notices]
[Page 45200]
[FR Doc No: 2016-16496]

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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting

    Notice is hereby given, pursuant to the provisions of the
Government in the Sunshine Act, Public Law 94-409, that the Securities
and Exchange Commission Investor Advisory Committee will hold a meeting
on Thursday, July 14, 2016, in Multi-Purpose Room LL-006 at the
Commission's headquarters, 100 F Street NE., Washington, DC 20549. The
meeting will begin at 9:30 a.m. (ET) and will be open to the public.
Seating will be on a first-come, first-served basis. Doors will open at
9 a.m. Visitors will be subject to security checks. The meeting will be
webcast on the Commission's Web site at www.sec.gov.
    On June 22, 2016, the Commission issued notice of the Committee
meeting (Release No. 33-10102), indicating that the meeting is open to
the public (except during that portion of the meeting reserved for an
administrative work session during lunch), and inviting the public to
submit written comments to the Committee. This Sunshine Act notice is
being issued because a quorum of the Commission may attend the meeting.
    The agenda for the meeting includes: Remarks from Commissioners; a
discussion of the state of sustainability reporting; a discussion
regarding investment company reporting modernization; and a nonpublic
administrative work session during lunch.
    For further information, please contact Brent J. Fields from the
Office of the Secretary at<PHONE_NUMBER>.

    Dated: July 7, 2016.
Brent J. Fields,
Secretary.
[FR Doc. 2016-16496 Filed 7-8-16; 11:15 am]
 BILLING CODE 8011-01-P


[Federal Register: August 19, 2008 (Volume 73, Number 161)]
[Notices]
[Page 48427]
[DOCID:fr19au08-87]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Agency Information Collection Activity Seeking OMB Approval

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice.

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

SUMMARY: The FAA invites public comments about our intention to request
the Office of Management and Budget's (OMB's) revision of a current
information collection. The Federal Register Notice with a 60-day
comment period soliciting comments on the following collection of
information was published on May 14, 2008, Vol. 73, No. 94, page 27886.
The information to be collected includes data required for performing
launch site location analysis.

DATES: Please submit comments by September 18, 2008.

FOR FURTHER INFORMATION CONTACT: Carla Mauney at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Federal Aviation Administration (FAA)

    Title: License Requirements for Operation of a Launch Site.
    Type of Request: Revision of a currently approved collection.
    OMB Control Number: 2120-0644.
    Form(s): There are no FAA forms associated with this collection.
    Affected Public: An estimated 2 respondents.
    Frequency: This information is collected on occasion.
    Estimated Average Burden per Response: Approximately 3,483 hours
per response.
    Estimated Annual Burden Hours: An estimated 6,966 hours annually.
    Abstract: The information to be collected includes data required
for performing launch site location analysis. The launch site license
is valid for a period of 5 years. Respondents are licensees authorized
to operate sites.

ADDRESSES: Interested persons are invited to submit written comments on
the proposed information collection to the Office of Information and
Regulatory Affairs, Office of Management and Budget. Comments should be
addressed to Nathan Lesser, Desk Officer, Department of Transportation/
FAA, and sent via electronic mail to<EMAIL_ADDRESS>or
faxed to<PHONE_NUMBER>.
    Comments are invited on: Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Department, including whether the information will have practical
utility; the accuracy of the Department's estimates of the burden of
the proposed information collection; ways to enhance the quality,
utility, and clarity of the information to be collected; and ways to
minimize the burden of the collection of information on respondents,
including the use of automated collection techniques or other forms of
information technology.

    Issued in Washington, DC, on August 11, 2008.
Carla Mauney,
FAA Information Collection Clearance Officer, IT Enterprises Business
Services Division, AES-200.
[FR Doc. E8-19020 Filed 8-18-08; 8:45 am]

BILLING CODE 4910-13-M


[Federal Register: March 5, 2010 (Volume 75, Number 43)]
[Notices]
[Page 10237-10238]
[DOCID:fr05mr10-43]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings No. 1

February 2, 2010.
    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:
    Docket Numbers: RP10-342-000.
    Applicants: Elba Express Company, LLC.
    Description: Elba Express Company, LLC submits Original Sheet 1 et
al. to its FERC Gas Tariff, Original Volume 1 to be effective 3/1/10.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0209.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-343-000.
    Applicants: National Fuel Gas Supply Corporation.
    Description: National Fuel Gas Supply Corporation submits 132nd
Revised Sheet No. 9 to its FERC Gas Tariff, Fourth Revised Volume No. 1
with a proposed effective date of 2/1/2010.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0201.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-344-000.
    Applicants: Dauphin Island Gathering Partners.
    Description: Dauphin Island Gathering Partners submits Fifty-First
Revised Sheet No. 9 et al. to its FERC Gas Tariff, First Revised Volume
No. 1 to be effective 2/1/2010.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0202.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-345-000.
    Applicants: Great Lakes Gas Transmission Limited Partnership.
    Description: Great Lakes Gas Transmission Limited Partnership
submits its Transporter's Use Percentages Report for the six-month
period from July 1, 2009 through December 31, 2009.
    Filed Date: 01/29/2010.
    Accession Number: 20100129-5244.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-346-000.
    Applicants: Texas Gas Transmission, LLC.
    Description: Texas Gas Transmission, LLC submits amendment to a
negotiated rate letter agreement executed by Texas Gas and Northern
Illinois Gas Company.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0203.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-347-000.
    Applicants: Equitrans, L.P.
    Description: Equitrans, L.P. submits Fifteenth Revised Sheet No. 11
et al.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0204
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-348-000.
    Applicants: Equitrans, L.P.
    Description: Equitrans, L.P. submits Second Revised Sheet No. 318
to FERC Gas Tariff, Original Volume 1, to be effective 2/1/2010.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0205.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-349-000.
    Applicants: Kinder Morgan Interstate Gas Trans. LLC.
    Description: Kinder Morgan Interstate Gas Transmission LLC submits
petition for limited waiver of tariff provision.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0206.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-350-000.
    Applicants: Southern LNG, Inc.
    Description: Southern LNG, Inc submits Exhibit F to SLNG-1 Service
Agreement SLNG11 dated May 27, 2003 and Exhibit F to SLNG-3 Service
Agreement SLNG25 dated October 5, 2007.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0207.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Docket Numbers: RP10-351-000.
    Applicants: Transcontinental Gas Pipe Line Company, LLC.
    Description: Transcontinental Gas Pipe Line Company, LLC submits
Second Revised Sheet No. 396 et al. to its FERC Gas Tariff, Fourth
Revised Volume No. 1, to be effective 3/1/2010.
    Filed Date: 01/29/2010.
    Accession Number: 20100201-0208.
    Comment Date: 5 p.m. Eastern Time on Wednesday, February 10, 2010.

    Any person desiring to intervene or to protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and
385.214) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. Protests will be considered by the Commission in
determining the appropriate action to

be taken, but will not serve to make protestants parties to the
proceeding. Anyone filing a motion to intervene or protest must serve a
copy of that document on the Applicant. In reference to filings
initiating a new proceeding, interventions or protests submitted on or
before the comment deadline need not be served on persons other than
the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://
www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St., NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed docket(s). For assistance with
any FERC Online service, please e-mail<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2010-4633 Filed 3-4-10; 8:45 am]
BILLING CODE 6717-01-P


 1 Response to Comments Extension of Compliance Deadlines in the SPCC Rule EPA received a modest number of comments on the proposed extension and carefully considered them. After reviewing all of the comments, the Agency has decided to extend the compliance deadlines in 40 CFR § § 112.3( a) and ( b). As suggested by a commenter, we are also amending the rule to extend the compliance deadlines in § 112.3( c) to enable mobile facilities to amend and implement their Plans in light of the partial litigation settlement. Many commenters agreed with the Agency's tentative conclusions that the one year extension of compliance deadlines is necessary to allow the regulated community to understand and incorporate recent clarifications of the SPCC rule. Several commenters suggested extension time frames longer than one year, specifically eighteen months.

We have been persuaded by the comments that more than one year is appropriate and necessary for facilities to come into compliance with the SPCC amendments. We believe that an appropriate period is eighteen months for facilities to come into compliance, based on the need to amend and implement Plans, as necessary, in light of the partial litigation settlement.

As discussed in today's preamble, the Agency received two comments that did not support an extension. One commenter expressed a concern that political interests motivated the Agency's decision to extend the compliance deadlines. Accordingly, the commenter did not support an extension and instead stated that the compliance deadline should be, at the latest, January 1, 2005, although no rationale for this date was given. As stated earlier, the compliance date extension is intended to give members of the regulated community time to understand and incorporate recent clarifications to the SPCC rule. Another commenter opposed promulgating the extension of the compliance deadline and instead suggested that EPA withdraw the revised final SPCC rule ( 67 FR 47042) entirely. The Agency does not believe that his 1The commenter suggested the proposed rule be withdrawn because he felt: 1) EPA failed to use a single notice and single comment rulemaking procedure on the SPCC rule, 2) the proposed rule is necessitated by an incorrect economic analysis of the impact of the 2002 amendments, and 3) the proposed rule is flawed by lack of closure regarding the definition of " navigable waters."

 2 comments1 provide a legitimate justification for withdrawing the extension. Moreover,

these issues are not within the scope of today's rulemaking. The Agency reaffirms its belief that extending the compliance dates is necessary.

Several commenters also provided a number of other reasons for the extension.

These reasons include providing more time to the regulated community to perform implementation related activities such as staff training, fiscal budgeting, obtaining professional engineer certification; and to prevent a shortage of materials, equipment and technical expertise needed to implement plans. Numerous commenters stated that additional time would also be useful in order to receive and incorporate additional clarification and guidance on the SPCC rule from EPA. Several commenters suggested that a number of issues regarding the SPCC rule needed to be clarified in guidance before the rule could be properly implemented. With respect to guidance, the Agency notes that in an effort separate from this rulemaking, EPA has been working to assess the need for implementation guidance in various areas related to the amendments,

particularly with respect to integrity testing, as we communicated at our March 31, 2004 public meeting. EPA intends to continue this process during the 18 month extension,

as appropriate.

Several commenters expressed strong support for the extension, but did not provide a rationale for their support. Other commenters suggested time frames other than a 12 month extension. These suggestions ranged from 18 months to two years to " a much greater time" for facilities to amend and/ or implement their Plan. Some commenters were specifically concerned about the number and scope of technical issues that EPA plans to clarify, and suggested that more than 12 months would be necessary for EPA to develop guidance and for facilities to make appropriate changes to their plans. Given the record before the Agency at this time on the issues raised by  3 the commenters, the Agency concludes that a one year extension is generally inadequate for the regulated community to come into compliance with the SPCC amendments in light of the partial litigation settlement. Where a facility believes that additional time over the eighteen months extension is needed, the facility may seek an extension pursuant to 40 CFR § 112.3( f), where appropriate. Should additional facts develop on these issues in the future, the Agency will consider requests that it take appropriate action.

Numerous commenters raised substantive issues regarding the rule that were not associated with the issue of whether to extend the compliance deadlines in the July 2002 rule, as revised in April 2003. In particular, many commenters called for modifications, interpretations, or clarifications of the amended SPCC rule, including issues surrounding the small business initiative, Professional Engineer certification,

integrity testing, oil filled electrical and other operational equipment, process vessels,

motive power, produced water, secondary containment requirements for loading racks and piping, definitions of " oil" and " waters of the U. S.," oil in wastewater treatment,

vehicle mounted and mobile containers, and fencing and monitoring. Except for extending the compliance deadlines for mobile facilities, EPA did not consider these comments because they were outside the scope of today's rulemaking.

Miscellaneous Issues ° One commenter was concerned that an interim final rule extending the compliance deadlines did not accompany the proposed one year extension. The commenter questioned when the final rule would be published and if the regulated community would have 30 days notice. Without a 30 day notice, the commenter was concerned about the resources required to prepare individual extension requests per § 112.3( f) for his facilities. The commenter recommended that EPA either publish a final rule extending the deadlines by July 17, 2004 or issue an interim final rule by that date extending the deadlines as long as necessary to finalize this proposed rule. EPA is aware of the scheduling concerns regarding the extension of compliance deadlines and believes it has  4 issued its final rule such that the regulated community will not be burdened with preparing individual extension requests.

° One commenter suggested that if EPA adheres to its proposal for no more than a one year extension, the rule should delegate to the EPA Administrator or his designee the authority to further extend the compliance deadline in light of pending administrative proceedings without having to initiate another round of notice and comment rulemaking. Any general extension for all facilities would require notice and comment rulemaking. The rule already provides for the Regional Administrator to authorize extensions on a case by case basis pursuant to § 112.3( f).

° A commenter asked EPA to reaffirm the statement that the Agency made in the preamble to the April 17, 2003 final rule. Accordingly, EPA restates that to the extent that the July 2002 rule imposes new or more stringent compliance obligations than did the 1973 SPCC rule, the deadlines in 40 CFR 112.3( a)

and( b) for fulfillment of those obligations are again extended under today's final rule. The compliance deadline for 40 CFR 112.3( c) is also amended. A provision that provides regulatory relief in the revised rule is not affected by today's compliance deadline extensions because such provisions are not addressed by 40 CFR 112.3( a), ( b), or ( c); these are not provisions for which it would be `` necessary'' to amend existing Plans `` to ensure compliance with'' the July 2002 amendments.