6560-50-P
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60 and 63
[EPA-HQ-OAR-2023-0509; FRL-11625-01-OAR]
RIN 2060-AW16
Removal of Affirmative Defense Provisions from Specified New Source Performance
Standards and National Emission Standards for Hazardous Air Pollutants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The EPA is proposing amendments to several New Source Performance Standards
(NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) under the
Clean Air Act (CAA). Specifically, the EPA is proposing to remove the affirmative defense
provisions associated with violation of emission standards due to malfunctions. These provisions
are being proposed for removal because the EPA finds that they are inconsistent with a D.C.
Circuit Court decision that vacated affirmative defense provisions in one of the EPA’s CAA
regulations, and because the EPA finds that the reasoning in the decision applies equally to other
CAA rules. Since the court decision, the EPA has been removing affirmative defense provisions
from CAA rules when they were otherwise revised or amended. This action proposes to remove
the remaining affirmative defense provisions more efficiently.
DATES: Comments. Comments must be received on or before [INSERT DATE 45 DAYS
AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
Public hearing. If anyone contacts us requesting a public hearing on or before June 29,
2024, we will hold a virtual public hearing. See SUPPLEMENTARY INFORMATION for
information on requesting and registering for a public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-OAR2023-0509, by any of the following methods:
•

Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method).
Follow the online instructions for submitting comments.

•

Email: a-and-r-docket@epa.gov. Include Docket ID No. EPA-HQ-OAR-2023-0509
in the subject line of the message.

•

Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2023-0509.

•

Mail: U.S. Environmental Protection Agency, EPA Docket Center, Docket ID No.
EPA-HQ-OAR-2023-0509, Mail Code 28221T, 1200 Pennsylvania Avenue, NW,
Washington, DC 20460.

•

Hand/Courier Delivery: EPA Docket Center, WJC West Building, Room 3334, 1301
Constitution Avenue, NW, Washington, DC 20004. The Docket Center’s hours of
operation are 8:30 a.m. – 4:30 p.m., Monday – Friday (except federal holidays).

Instructions: All submissions received must include the Docket ID No. for this
rulemaking. Comments received may be posted without change to https://www.regulations.gov/,
including any personal information provided. For detailed instructions on sending comments and
additional information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For questions about this proposed action,
contact U.S. EPA, Attn. Dr. Michelle Bergin, Sector Policies and Programs Division (Mail Code
D205-01), P.O. Box 12055, Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency 109 T.W. Alexander Drive, P.O. Box 12055, RTP, North Carolina 27711;
telephone number: (919) 541-2726; and email address: bergin.michelle@epa.gov.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. We use multiple acronyms and terms in this preamble.
While this list may not be exhaustive, to ease the reading of this preamble and for reference
purposes, the EPA defines the following terms and acronyms here:
CAA
CBI
CFR
EPA
NAICS
NESHAP

Clean Air Act
Confidential Business Information
Code of Federal Regulations
Environmental Protection Agency
North American Industry Classification System
National Emission Standards for Hazardous Air Pollutants

NSPS
SIP
SSM

New Source Performance Standards
state implementation plan
startup, shutdown, and malfunction

Participation in virtual public hearing. To request a virtual public hearing, contact the public
hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the
hearing will be held via virtual platform on [INSERT DATE 15 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER]. The hearing will convene at 11:00 a.m.
Eastern Time (ET) and will conclude at 3:00 p.m. ET. The EPA may close a session 15 minutes
after the last pre-registered speaker has testified if there are no additional speakers. The EPA will
announce further details at https://www.epa.gov/stationary-sources-air-pollution/removalaffirmative-defense-provisions-specified-new-source.
If a public hearing is requested, the EPA will begin pre-registering speakers for the
hearing no later than 1 business day after a request has been received. To register to speak at the
virtual hearing, please use the online registration form available at
https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisionsspecified-new-source or contact the public hearing team at (888) 372-8699 or by email at
SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be July 6,
2024. Prior to the hearing, the EPA will post a general agenda that will list pre-registered
speakers at: https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defenseprovisions-specified-new-source.
The EPA will make every effort to follow the schedule as closely as possible on the day
of the hearing; however, please plan for the hearings to run either ahead of schedule or behind
schedule.
Each commenter will have 4 minutes to provide oral testimony. The EPA encourages
commenters to provide the EPA with a copy of their oral testimony electronically (via email) by
emailing it to bergin.michelle@epa.gov. The EPA also recommends submitting the text of your
oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond
to the presentations at that time. Written statements and supporting information submitted during
the comment period will be considered with the same weight as oral testimony and supporting
information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will be posted online at
https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisionsspecified-new-source. While the EPA expects the hearing to go forward as set forth above, please
monitor our website or contact the public hearing team at (888) 372-8699 or by email at
SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to
publish a document in the Federal Register announcing updates.
If you require the services of a translator or special accommodation such as audio
description, please pre-register for the hearing with the public hearing team and describe your
needs by July 1, 2024. The EPA may not be able to arrange accommodations without advanced
notice.
Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPAHQ-OAR-2023-0509. All documents in the docket are listed in https://www.regulations.gov/.
Although listed, some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet and will be publicly available
only as pdf versions that can only be accessed on the EPA computers in the docket office reading
room. Certain data bases and physical items cannot be downloaded from the docket but may be
requested by contacting the docket office at 202-566-1744. The docket office has up to 10
business days to respond to these requests. With the exception of such material, publicly
available docket materials are available electronically in https://www.regulations.gov/.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2023-0509. The
EPA’s policy is that all comments received will be included in the public docket without change

and may be made available online at https://www.regulations.gov/, including any personal
information provided, unless the comment includes information claimed to be CBI or other
information whose disclosure is restricted by statute. Do not submit electronically to
https://www.regulations.gov/ any information that you consider to be CBI or other information
whose disclosure is restricted by statute. This type of information should be submitted as
discussed below.
The EPA may publish any comment received to its public docket. Multimedia
submissions (audio, video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment contents located outside of
the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional
submission methods, the full EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please visit
https://www.epa.gov/dockets/commenting-epa-dockets.
The https://www.regulations.gov/ website allows you to submit your comment
anonymously, which means the EPA will not know your identity or contact information unless
you provide it in the body of your comment. If you send an email comment directly to the EPA
without going through https://www.regulations.gov/, your email address will be automatically
captured and included as part of the comment that is placed in the public docket and made
available on the Internet. If you submit an electronic comment, the EPA recommends that you
include your name and other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the EPA may not be able to consider your
comment. Electronic files should not include special characters or any form of encryption and be
free of any defects or viruses. For additional information about the EPA’s public docket, visit the
EPA Docket Center homepage at https://www.epa.gov/dockets.

Submitting CBI. Do not submit information containing CBI to the EPA through
https://www.regulations.gov/. Clearly mark the part or all of the information that you claim to be
CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket
ID, mark the outside of the digital storage media as CBI, and identify electronically within the
digital storage media the specific information that is claimed as CBI. In addition to one complete
version of the comments that includes information claimed as CBI, you must submit a copy of
the comments that does not contain the information claimed as CBI directly to the public docket
through the procedures outlined in Instructions above. If you submit any digital storage media
that does not contain CBI, mark the outside of the digital storage media clearly that it does not
contain CBI and note the docket ID. Information not marked as CBI will be included in the
public docket and the EPA’s electronic public docket without prior notice. Information marked
as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted electronically using email
attachments, File Transfer Protocol (FTP), or other online file sharing services (e.g., Dropbox,
OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS
CBI Office at the email address oaqpscbi@epa.gov, and as described above, should include clear
CBI markings and note the docket ID. If assistance is needed with submitting large electronic
files that exceed the file size limit for email attachments, and if you do not have your own file
sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI
information through the postal service, please send it to the following address: OAQPS
Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, P.O.
Box 12055, 109 T.W. Alexander Drive, Research Triangle Park, North Carolina 27711,
Attention Docket ID No. EPA-HQ-OAR-2023-0509. The mailed CBI material should be double
wrapped and clearly marked. Any CBI markings should not show through the outer envelope.
Organization of this document. The information in this preamble is organized as follows:

I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related information?
II. Background
III. What action is the EPA proposing to remove Affirmative Defense?
IV. Summary of Cost, Environmental, and Economic Impacts
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, as amended by Executive Order
14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments
G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety
Risks
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR part 51
J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations and Executive Order 14096: Revitalizing Our Nation’s
Commitment to Environmental Justice for All
I. General Information
A. Does this action apply to me?
This proposal addresses the industrial source sectors and includes, but is not limited to,
the associated North American Industry Classification System (NAICS) codes subject to the
rules shown in table 1 of this preamble. Table 1 is not intended to be exhaustive, but rather
provides a guide for readers regarding the entities that this proposed action is likely to affect. If
you have any questions regarding the applicability of this action to a particular entity, contact the
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.
Table 1. 40 CFR Parts 60 and 63 Rules Proposed for Removal of Affirmative Defense
Source Sector

Subpart

NAICS Codes1

Clean Air Act section 111 (40 CFR part 60)
Electric Utility Steam Generating Units (Boilers)

Da

221112, 921150

Kraft Pulp Mills

BBa

Nitric Acid Plants

Ga

Clean Air Act section 112 (40 CFR part 63)
Chemical Manufacturing Area Sources

VVVVVV
(6V)

Chromium Electroplating

N

Coal- and Oil-Fired Electric Utility Steam
Generating Units (MATS)

UUUUU
(5U)

Marine Vessel Loading Operations

Y

221112, 221122,
921150
Pesticide Active Ingredient Production

MMM

325199, 325320

Pharmaceuticals Production

GGG

Polyether Polyols Production

PPP

Polymers & Resins IV

JJJ

Primary Lead Processing

TTT

Printing and Publishing Surface Coating

KK

Pulp and Paper Industry

S

Secondary Lead Smelters

X

Shipbuilding and Ship Repair Surface Coating

II

Steel Pickling

CCC

3311, 3312

Wood Furniture Surface Coating

JJ

3371, 3372, 3379

1 North

American Industry Classification System (NAICS)

B. Where can I get a copy of this document and other related information?
In addition to being available in the docket, an electronic copy of this action is available
on the Internet at https://www.epa.gov/stationary-sources-air-pollution/removal-affirmativedefense-provisions-specified-new-source. Following publication in the Federal Register, the
EPA will post the Federal Register version of the proposal at this same website.
A memorandum showing the edits that would be necessary to incorporate the changes
proposed in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2023-0509).
Following signature by the EPA Administrator, the EPA also will post a copy of this
memorandum to https://www.epa.gov/stationary-sources-air-pollution/removal-affirmativedefense-provisions-specified-new-source.

II. Background
In 2008, the United States Court of Appeals for the District of Columbia Circuit (the
court) vacated portions of 2 provisions governing the emissions of hazardous air pollutants
during periods of startup, shutdown, and malfunction (SSM) in the EPA’s CAA section 112
General Provisions regulations (40 CFR part 63, subpart A). Sierra Club v. EPA, 551 F.3d 1019
(D.C. Cir. 2008). The court held that under section 302(k) of the CAA, emissions standards or
limitations must be continuous in nature and that the SSM exemption violates the CAA's
requirement that CAA section 112 standards must apply at all times. To address the court
decision, the EPA began amending SSM provisions in 2010 with the Portland Cement
Manufacturing NESHAP (75 FR 54970, September 9, 2010). In that action, in response to
comments urging the EPA to not apply the same standards to malfunctions as to normal
operations, the EPA added an affirmative defense to civil penalties for when the event that
causes an exceedance of the emission limit meets the narrow definition of malfunction.
As defined in each subpart addressed in this action (see table 1), an 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.” This defense
would most likely be applied to malfunction events that result in non-compliance with any
applicable standards. Malfunctions in this context are a sudden, infrequent, and not reasonably
preventable failure of air pollution control and monitoring equipment, process equipment, or a
process to operate in a normal or usual manner. See 40 CFR 63.2 and 40 CFR 60.2. Although the
EPA recognized that its case-by-case enforcement discretion provides sufficient flexibility in
these circumstances, it included the affirmative defense in some rules to provide a more
formalized approach to malfunctions (e.g. 79 FR 1676, 1712). See also Weyerhaeuser Co. v.
Costle, 590 F.2d 1011, 1057–58 (D.C. Cir. 1978) (holding that an informal case-by-case
enforcement discretion approach is adequate); but see Marathon Oil Co. v. EPA, 564 F.2d 1253,

1272–73 (9th Cir. 1977) (requiring a more formalized approach to consideration of “upsets
beyond the control of the permit holder”). Under the EPA’s regulatory affirmative defense
provisions, if a source could demonstrate in a judicial or administrative proceeding that it had
met the requirements of the affirmative defense in the regulation, civil penalties would not be
assessed.
However, on April 18, 2014, the D.C. Circuit vacated the portion of the EPA’s CAA
section 112 regulation pertaining to the affirmative defense in the NESHAP for the portland
cement manufacturing industry. NRDC v. EPA, 749 F.3d 1055 (2014). The court found that the
EPA lacked authority to establish an affirmative defense for private civil suits and held that CAA
section 304(a) clearly vests the authority over private suits exclusively with the courts, not the
EPA. Id. at 1063.
In light of the NRDC decision, the EPA has been removing affirmative defense
provisions from CAA section 112 rules.1 Additionally, the EPA determined that although the
NRDC decision addressed a CAA section 112 rule, the court’s rationale also applies to
affirmative defense provisions in CAA section 111 rules; accordingly, the EPA has also removed
affirmative defense provisions from those rules when they were otherwise revised or amended.2,3
As indicated in these actions, the EPA will continue to evaluate violations on a case-by-case
basis and determine whether an enforcement action is appropriate.
For example, see affirmative defense removed in the “National Emission Standards for
Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers
and Process Heaters” (80 FR 72789, Sept. 20, 2015) and in “National Emission Standards for
Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers”
(81 FR 63112, Sept. 14, 2016).
2 For example, see “Oil and Natural Gas Sector: Reconsideration of Additional Provisions of
New Source Performance Standards” (79 FR 79017, Dec. 31, 2014) (affirmative defense
provision removed); and “Standards of Performance for Greenhouse Gas Emissions From New,
Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units” (80 FR
64509, Sept. 23, 2015) (declining to finalize proposed affirmative defense provision).
3 In March 2024, the D.C. Circuit issued a decision in Environmental Committee of the Florida
Electric Power Coordinating Group v. EPA, No. 15-1239. Petitioners challenged an EPA final
action relating to SSM provisions in state implementation plans (SIPs), and the court’s holding
was premised on certain language in CAA 110(a)(2)(A), which only applies to SIPs and not
source sector rules under CAA sections 111 and 112.

If the EPA determines that bringing an enforcement action under CAA section
113(d)(2)(B) against a source for a violation of an emission standard is warranted, the source can
raise any and all defenses in response and the federal district court will determine what, if any,
relief is appropriate. The presiding officer in an administrative proceeding can consider any
defense raised and determine whether administrative penalties are appropriate.4 Similarly, as the
court recognized, in a citizen enforcement action brought under CAA section 304(a), the
reviewing court has the discretion to consider any defense raised when determining whether
penalties are appropriate. Cf. NRDC, 749 F.3d at 1064.
Following the NRDC decision, on June 17, 2014, Sierra Club filed an administrative
petition requesting the EPA to remove the affirmative defense provisions from a set of 29 rules.5

Although the NRDC case does not address the EPA’s authority to establish an affirmative
defense to penalties that are available in administrative enforcement actions, we are not
proposing such an affirmative defense for the rules addressed by this action. As explained, such
an affirmative defense is not necessary. Moreover, assessment of penalties for violations caused
by malfunctions in administrative proceedings and judicial proceedings should be consistent. Cf.
CAA section 113(e) (requiring both the Administrator and the court to take specified criteria into
account when assessing penalties).
5 Petition to Revise Air Emission Regulations Containing Affirmative Defense (Jun. 17, 2014).
The twenty-nine rules addressed in the 2014 administrative petition include: under New Source
Performance Standards (CAA section 111) – 40 CFR Part 60 Subpart Da: Electric Utility Steam
Generating-Units; Subpart Ga: Nitric Acid Plants for Which Construction, Reconstruction, or
Modification Commenced After October 14, 2011; Subpart BBa: Kraft Pulp Mill Affected
Sources for Which Construction, Reconstruction, or Modification Commenced After May 23,
2013; and Subpart OOOO: Crude Oil and Natural Gas Production, Transmission and
Distribution. Under Solid waste combustion New Source Performance Standards & Emission
Guidelines (CAA section 129) – 40 CFR Part 60 Subpart CCCC: Commercial and Industrial
Solid Waste Incineration Units (new); Subpart DDDD: Commercial and Industrial Solid Waste
Incineration Units (existing); Subpart LLLL: New Sewage Sludge Incineration Units; and
Subpart MMMM: Existing Sewage Sludge Incineration Units. Under National Emission
Standards for Hazardous Air Pollutants (CAA section 112) – 40 CFR Part 63 Subpart N:
Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium
Anodizing Tanks; Subpart S: Pulp and Paper Industry; Subpart U: Group I Polymers and Resins;
Subpart X: Secondary Lead Smelting; Subpart Y: Marine Tank Vessel Tank Loading Operations;
Subpart HH: Oil and Natural Gas Production Facilities; Subpart II: Shipbuilding and Ship Repair
(Surface Coating); Subpart JJ: Wood Furniture Manufacturing Operations; Subpart KK: Printing
and Publishing Industry; Subpart CCC: Steel Pickling-HCl Process Facilities and Hydrochloric
Acid Regeneration Plants; Subpart GGG: Pharmaceuticals Production; Subpart HHH: Natural
Gas Transmission and Storage Facilities; Subpart JJJ: Group IV Polymers and Resins; Subpart
MMM: Pesticide Active Ingredient Production; Subpart PPP: Polyether Polyols Production;
Subpart TTT: Primary Lead Smelting; Subpart DDDDD: Major Sources: Industrial, Commercial,

On July 14, 2014, Sierra Club also filed a petition seeking judicial review of nine Federal
Register actions which included 17 source sector rules that contain affirmative defense
provisions promulgated by the EPA under the CAA in 2011 and 2012 (Case No. 14-1110 (D.C.
Cir.)). In November 2014, the EPA granted the administrative petition, stating that the EPA will
continue the ongoing process of removing affirmative defenses from the remaining rules
included in the petition as expeditiously as practicable.6 While the EPA has made significant
progress in removing the affirmative defense provision from individual rules as the rules are
opened for periodic review (including 3 from the administrative petition7), this action furthers
that progress more efficiently by proposing to remove the affirmative defense provision from 18
rules, shown in Table 1. This proposal does not address 5 rules (4 from the petition) for which
removal of affirmative defense provisions has already been proposed but not yet finalized.8
Finally, this action is not proposing removal of affirmative defense provisions from any waste
incineration rules under CAA section 129, which will be addressed at a later time.
III. What action is the EPA proposing to remove Affirmative Defense?
The EPA is proposing to remove the definition of affirmative defense and revise or
remove and reserve regulatory sections that contain affirmative defense provisions from the
eighteen source sector rules shown in table 1 of this preamble. These source sector rules are each
codified under either 40 CFR part 60 or part 63 (NSPS and NESHAP, respectively). A
memorandum showing the edits that would be necessary to incorporate the changes proposed in
this action is available in the docket (Docket ID No. EPA-HQ-OAR-2023-0509). Following
signature by the EPA Administrator, the EPA also will post a copy of this memorandum to

and Institutional Boilers and Process Heaters; Subpart UUUUU: Coal- and Oil-Fired Electric
Utility Steam Generating Units; Subpart JJJJJJ: Industrial, Commercial, and Institutional Boilers
Area Sources; Subpart VVVVVV: Chemical Manufacturing Area Sources; Subpart HHHHHHH:
Polyvinyl Chloride and Copolymers Production.
6 Letter from J. McCabe, Acting EPA Administrator, to S. Johnson, Earthjustice (Nov. 19, 2014).
7 40 CFR part 60 subpart OOOO (79 FR 79017, Dec. 31, 2014) and 40 CFR part 63 subparts
DDDDD (80 FR 72789, Nov. 20, 2015) and JJJJJJ (81 FR 63112, Sept. 14, 2016).
8 40 CFR part 63 subparts U, HH, HHH, DDDDDD and HHHHHHH.

https://www.epa.gov/stationary-sources-air-pollution/removal-affirmative-defense-provisionsspecified-new-source. The EPA is soliciting comment on if there are any rules not listed in table
1 of this preamble that are under CAA sections 111 or 112 and have remaining affirmative
defense provisions that the EPA needs to consider for removal. The EPA is also soliciting
comment on if there are any additional considerations related to removal of affirmative defense
provisions than addressed by this proposal. This document does not address or reopen any
provisions in these regulations other than removal of provisions related to affirmative defense.
IV. Summary of Cost, Environmental, and Economic Impacts
There are no air quality or cost impacts associated with the proposed amendments and,
therefore, there are also no economic impacts. The affirmative defense provisions did not affect
the stringency of or compliance requirements with affected standards in 40 CFR parts 60 and 63.
The removal of the affirmative defense provisions does not have a material impact on the
obligation for sources to comply with their respective standards, or on the ability of federal or
state agencies to enforce such standards. When the EPA originally promulgated the affirmative
defense provisions in the rules addressed in this proposed action, the EPA estimated a small
administrative burden to report deviations from standards as a result of malfunctions that
included the option for an owner or operator to offer an affirmative defense. The proposed
removal of the affirmative defense provisions does not affect that small administrative burden
because the EPA expects that sources will continue to collect similar information in order to
defend any compliance actions against a source. In addition, as required by the individual rules,
sources will continue to report information regarding malfunctions that result in a failure to meet
the standards.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders can be found at
https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review, as amended by Executive Order
14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in Executive Order 12866, as
amended by Executive Order 14094, and was therefore not subject to a requirement for
Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden under the PRA. OMB
has previously approved the information collection activities contained in the existing
regulations. The removal of provisions for affirmative defense does not change any mandatory
recordkeeping, reporting, or other activity previously established under prior final rules.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic impact on a substantial
number of small entities under the RFA. In making this determination, the EPA concludes that
this rule will not have any significant adverse economic impact on small entities because the rule
has no net burden on the small entities subject to the rule. The removal of the affirmative defense
provisions does not have a material impact on the obligation for sources to comply with their
respective standards, or on the ability of federal or state agencies to enforce such standards.
When the EPA originally promulgated the affirmative defense provisions in the rules addressed
in this proposed action, the EPA estimated a small administrative burden to report deviations
from standards as a result of malfunctions that included the option for an owner or operator to
offer an affirmative defense. The proposed removal of the affirmative defense provisions does
not affect that small administrative burden because the EPA expects that sources will continue to
collect similar information in order to defend any compliance actions against a source. We have
therefore concluded that this action will have no net regulatory burden for all directly regulated
small entities.
D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C.
1531-1538, and does not significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have substantial direct
effects on the states, on the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments
This action does not have tribal implications as specified in Executive Order 13175. It
will not have substantial direct effects on tribal governments, on the relationship between the
federal government and Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes, as specified in Executive Order 13175. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety
Risks
The EPA interprets Executive Order 13045 as applying only to those regulatory actions
that concern environmental health or safety risks that the EPA has reason to believe may
disproportionately affect children, per the definition of “covered regulatory action” in section 2202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045
because it does not concern an environmental health risk or safety risk. Since this action does not
concern human health, the EPA’s Policy on Children’s Health also does not apply.
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is not a significant
regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR part 51

This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations and Executive Order 14096: Revitalizing Our
Nation’s Commitment to Environmental Justice for All
The EPA believes that this action does not concern human health or environmental
conditions and therefore cannot be evaluated with respect to potentially disproportionate and
adverse effects on communities with environmental justice concerns. This action does not
change the underlying standards that have an impact on human health and the environment.


Michael S. Regan,
Administrator.

[FR Doc. 2024-13188 Filed: 6/21/2024 8:45 am; Publication Date: 6/24/2024]