hutdown, and 
scheduled maintenance, is 
impermissible for this reason as well. 

Finally, while the EPA continues to 
believe that affirmative defense 
provisions applying to malfunctions can 
be consistent with the CAA as long as 
the criteria set forth in the SSM Policy 
are carefully adhered to, as discussed in 
sections IV.B and VII.B of this notice, 
the criteria in Wash. Admin. Code 
� 173�400�107 are not sufficiently 
similar to those recommended in the 
EPA�s SSM Policy to assure that the 
affirmative defense is available only in 
appropriately narrow circumstances. 
The EPA acknowledges that the SSM 
Policy is only guidance concerning what 
types of SIP provisions could be 
consistent with the requirements of the 
CAA. Nonetheless, through this 
rulemaking, the EPA is proposing to 
determine that Wash. Admin. Code 
� 173�400�107 does not include criteria 
that are sufficiently robust to qualify as 
an acceptable affirmative defense 
provision for malfunctions (i.e., 
��upsets��). For example, the defense 
available in Wash. Admin. Code � 173� 
400�107 is not limited to excess 
emissions caused by sudden, 
unavoidable, breakdown of technology 
beyond the control of the owner or 
operator. Similarly, the provision 
contains neither a statement that the 
defense does not apply in situations 
where a single source or small group of 
sources has the potential to cause an 
exceedance of the NAAQS or PSD 
increments nor a requirement that 
sources make an after-the-fact showing 
that no such exceedance occurred. As a 
result, the EPA believes that the 
provision is substantially inadequate to 
satisfy the requirements of the CAA. 

c. The EPA�s Proposal 
The EPA proposes to grant the 
Petition with respect to Wash. Admin. 
Code � 173�400�107. The provision 
applies to startup, shutdown, and 
maintenance events, contrary to the 
EPA�s interpretation of the CAA to 
allow such affirmative defenses only for 
malfunctions. Furthermore, the section 
of Wash. Admin. Code � 173�400�107 
applying to ��upsets�� is inadequate 
because the criteria referenced are not 
sufficiently similar to those 
recommended in the EPA�s SSM Policy 
for affirmative defenses for excess 
emissions due to malfunctions. Finally, 
the provision is unclear as to whether 
the EPA and the public could still seek 
injunctive relief if a state official made 
a determination that excess emissions 
were unavoidable. As a result, the EPA 
believes that Wash. Admin. Code � 173� 
400�107 is inconsistent with the 
fundamental requirements of CAA 
sections 110(a)(2)(A), 110(a)(2)(C), and 
302(k). For these reasons, the EPA is 
proposing to find that the provision is 
substantially inadequate to meet CAA 
requirements and proposes to issue a 
SIP call with respect to the provision. 

X. Statutory and Executive Order 
Reviews 
A. Executive Order 12866: Regulatory 
Planning and Review and Executive 
Order 13563: Improving Regulation and 
Regulatory Review 
Under Executive Order 12866 (58 FR 
51735, October 4, 1993), this action is a 
��significant regulatory action�� because 
it raises novel legal or policy issues. 
Accordingly, the EPA submitted this 
action to the Office of Management and 
Budget (OMB) for review under 
Executive Orders 12866 and 13563 (76 
FR 3821, January 21, 2011) and any 
changes made in response to OMB 
recommendations have been 
documented in the docket for this 
action. 

B. Paperwork Reduction Act 
This action does not impose any new 
information collection burden. The 
EPA�s proposed action in response to 
the Petition merely reiterates the EPA�s 
interpretation of the statutory 
requirements of the CAA and does not 
require states to collect any additional 
information. To the extent that the EPA 
proposes to grant the Petition and thus 
proposes to issue a SIP call to a state 
under CAA section 110(k)(5), the EPA is 
only proposing an action that requires 
the state to revise its SIP to comply with 
existing requirements of the CAA. 

C. Regulatory Flexibility Act 
The Regulatory Flexibility Act (RFA) 
generally requires an agency to prepare 
a regulatory flexibility analysis of any 
rule subject to notice-and-comment 
rulemaking requirements under the 
Administrative Procedure Act or any 
other statute unless the agency certifies 
that the rule will not have a significant 
economic impact on a substantial 
number of small entities.200 

After considering the economic 
impacts of this proposed rule on small 
entities, I certify that this action will not 
have a significant economic impact on 
a substantial number of small entities. 
Courts have interpreted the RFA to 
require a regulatory flexibility analysis 
only when small entities will be subject 
to the requirements of the rule. See, e.g., 
Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 
2000); Mid-Tex Elec. Co-op, Inc. v. 
FERC, 773 F.2d 327 (D.C. Cir. 1985). 
This proposed rule will not impose any 
requirements on small entities. Instead, 
the proposed action merely reiterates 
the EPA�s interpretation of the statutory 
requirements of the CAA. To the extent 
that the EPA proposes to grant the 
Petition and thus proposes to issue a SIP 
call to a state under CAA section 
110(k)(5), the EPA is only proposing an 
action that requires the state to revise its 
SIP to comply with existing 
requirements of the CAA. The EPA�s 
action, therefore, would leave to states 
the choice of how to revise the SIP 
provision in question to make it 
consistent with CAA requirements and 
determining, among other things, which 
of the several lawful approaches to the 
treatment of excess emissions during 
SSM events will be applied to particular 
sources. We continue to be interested in 
the potential impacts of the proposed 
rule on small entities and welcome 
comments on issues related to such 
impacts. 

D. Unfunded Mandates Reform Act 
This rule does not contain a federal 
mandate that may result in expenditures 
of $100 million or more for state, local, 
and tribal governments, in the aggregate, 
or the private sector in any one year. 
The action may impose a duty on 

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


Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 12539 

certain state governments to meet their 
existing obligations to revise their SIPs 
to comply with CAA requirements. The 
direct costs of this action on states 
would be those associated with 
preparation and submission of a SIP 
revision by those states for which the 
EPA issues a SIP call. Examples of such 
costs could include development of a 
state rule, conducting notice and public 
hearing, and other costs incurred in 
connection with a SIP submission. 
These aggregate costs would be far less 
than the $100-million threshold in any 
one year. Thus, this rule is not subject 
to the requirements of sections 202 or 
205 of UMRA. 

This rule is also not subject to the 
requirements of section 203 of UMRA 
because it contains no regulatory 
requirements that might significantly or 
uniquely affect small governments. The 
regulatory requirements of this action 
would apply to the states for which the 
EPA issues a SIP call. To the extent that 
such states allow local air districts or 
planning organizations to implement 
portions of the state�s obligation under 
the CAA, the regulatory requirements of 
this action would not significantly or 
uniquely affect small governments 
because those governments have already 
undertaken the obligation to comply 
with the CAA. 

E. Executive Order 13132�Federalism 
This action does not have federalism 
implications. It will not have substantial 
direct effects on the states, on the 
relationship between the national 
government and the states, or on the 
distribution of power and 
responsibilities among the various 
levels of government, as specified in 
Executive Order 13132 because it will 
simply maintain the relationship and 
the distribution of power between the 
EPA and the states as established by the 
CAA. The proposed SIP calls are 
required by the CAA because the EPA 
is proposing to find that the current SIPs 
of the affected states are substantially 
inadequate to meet fundamental CAA 
requirements. In addition, the effects on 
the states will not be substantial because 
where a SIP call is finalized for a state, 
the SIP call will require the affected 
state to submit only those revisions 
necessary to address the SIP 
deficiencies and applicable CAA 
requirements. While this action may 
impose direct effects on the states, the 
expenditures would not be substantial 
because they would be far less than $25 
million in the aggregate in any one 

year.201 Thus, Executive Order 13132 
does not apply to this action. 

In the spirit of Executive Order 13132, 
and consistent with the EPA policy to 
promote communications between the 
EPA and state and local governments, 
the EPA specifically solicits comment 
on this proposed rule from state and 
local officials. 

F. Executive Order 13175�Consultation 
and Coordination With Indian Tribal 
Governments 
This action does not have tribal 
implications, as specified in Executive 
Order 13175 (65 FR 67249, November 9, 
2000). In this action, the EPA is not 
addressing any tribal implementation 
plans. This action is limited to states. 
Thus, Executive Order 13175 does not 
apply to this action. However, the EPA 
invites comment on this proposed 
action from tribal officials. 

G. Executive Order 13045�Protection of 
Children From Environmental Health 
Risks and Safety Risks 
The EPA interprets EO 13045 (62 FR 
19885, April 23, 1997) as applying only 
to those regulatory actions that concern 
health or safety risks, such that the 
analysis required under section 5�501 of 
the EO has the potential to influence the 
regulation. This action is not subject to 
EO 13045 because it merely prescribes 
the EPA�s action for states regarding 
their obligations for SIPs under the 
CAA. 

H. Executive Order 13211�Actions 
Concerning Regulations That 
Significantly Affect Energy Supply, 
Distribution, or Use 
This action is not a ��significant 
energy action�� as defined in Executive 
Order 13211 (66 FR 28355(May 22, 
2001)), because it is not likely to have 
a significant adverse effect on the 
supply, distribution, or use of energy. 
This action merely prescribes the EPA�s 
action for states regarding their 
obligations for SIPs under the CAA. 

I. National Technology Transfer and 
Advancement Act 
Section 12(d) of the National 
Technology Transfer and Advancement 
Act of 1995 (��NTTAA��), Public Law 
104�113, 12(d) (15 U.S.C. 272 note) 
directs the EPA to use voluntary 
consensus standards in its regulatory 
activities unless to do so would be 
inconsistent with applicable law or 
otherwise impractical. Voluntary 
consensus standards are technical 
standards (e.g., materials specifications, 

201 ��EPA�s Action Development Process-Guidance 
on Executive Order 13132: Federalism,�� dated 
November 2008. 

test methods, sampling procedures, and 
business practices) that are developed or 
adopted by voluntary consensus 
standards bodies. NTTAA directs the 
EPA to provide Congress, through OMB, 
explanations when the EPA decides not 
to use available and applicable 
voluntary consensus standards. 

This proposed rulemaking does not 
involve technical standards. Therefore, 
the EPA is not considering the use of 
any voluntary consensus standards. 

J. Executive Order 12898�Federal 
Actions To Address Environmental 
Justice in Minority Populations and 
Low-Income Populations 
Executive Order 12898 (59 FR 7629, 
Feb. 16, 1994) establishes federal 
executive policy on environmental 
justice. Its main provision directs 
federal agencies, to the greatest extent 
practicable and permitted by law, to 
make environmental justice part of their 
mission by identifying and addressing, 
as appropriate, disproportionately high 
and adverse human health or 
environmental effects of their programs, 
policies, and activities on minority 
populations and low-income 
populations in the U.S. 

The EPA has determined that this 
proposed rule will not have 
disproportionately high and adverse 
human health or environmental effects 
on minority or low-income populations 
because it increases the level of 
environmental protection for all affected 
populations without having any 
disproportionately high and adverse 
human health or environmental effects 
on any population, including any 
minority or low-income population. The 
rule is intended to ensure that all 
communities and populations across the 
affected states, including minority, low-
income and indigenous populations 
overburdened by pollution, receive the 
full human health and environmental 
protection provided by the CAA. This 
proposed action concerns states� 
obligations regarding the treatment they 
give, in rules included in their SIPs 
under the CAA, to excess emissions 
during startup, shutdown, and 
malfunctions. This proposed action 
would require 36 states to bring their 
treatment of these emissions into line 
with CAA requirements, which would 
lead to sources� having greater 
incentives to control emissions during 
such events. 

K. Determination Under Section 307(d) 
Pursuant to CAA section 307(d)(1)(U), 
the Administrator determines that this 
action is subject to the provisions of 
section 307(d). Section 307(d)(1)(U) 
provides that the provisions of section 


12540 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

307(d) apply to ��such other actions as 
the Administrator may determine.�� 

L. Judicial Review 
Section 307(b)(1) of the CAA indicates 
which Federal Courts of Appeal have 
venue for petitions of review of final 
agency actions by the EPA under the 
CAA. This section provides, in part, that 
petitions for review must be filed in the 
Court of Appeals for the District of 
Columbia Circuit (i) when the agency 
action consists of ��nationally applicable 
regulations promulgated, or final actions 
taken, by the Administrator,�� or (ii) 
when such action is locally or regionally 
applicable, if ��such action is based on 
a determination of nationwide scope or 
effect and if in taking such action the 
Administrator finds and publishes that 
such action is based on such a 
determination.�� 

This rule responding to the Petition is 
��nationally applicable�� within the 
meaning of section 307(b)(1). First, the 
rulemaking addresses a Petition that 
raises issues that are applicable in all 
states and territories in the U.S. For 
example, the Petitioner requested that 
the EPA revise its SSM Policy with 
respect to whether affirmative defense 
provisions in SIPs are consistent with 
CAA requirements. The EPA�s response 
is relevant for all states nationwide. 
Second, the rulemaking will address a 
Petition that raises issues relevant to 
specific existing SIP provisions in 39 
states across the U.S. that are located in 
each of the 10 EPA Regions, 10 different 

federal circuits, and multiple time 
zones. Third, the rulemaking addresses 
a common core of knowledge and 
analysis involved in formulating the 
decision and a common interpretation 
of the requirements of the CAA being 
applied to SIPs in states across the 
country. Fourth, the rulemaking, by 
addressing issues relevant to 
appropriate SIP provisions in one state, 
may have precedential impacts upon the 
SIPs of other states nationwide. Courts 
have found similar rulemaking actions 
to be of nationwide scope and effect.202 

This determination is appropriate 
because in the 1977 CAA Amendments 
that revised CAA section 307(b)(1), 
Congress noted that the Administrator�s 
determination that an action is of 
��nationwide scope or effect�� would be 
appropriate for any action that has 
��scope or effect beyond a single judicial 
circuit.�� H.R. Rep. No. 95�294 at 323� 
324, reprinted in 1977 U.S.C.C.A.N. 
1402�03. Here, the scope and effect of 
this rulemaking extends to numerous 
judicial circuits because the action on 
the petition extends to states throughout 
the country. In these circumstances, 
section 307(b)(1) and its legislative 
history authorize the Administrator to 
find the rule to be of ��nationwide scope 
or effect�� and thus to indicate that 

202 See, e.g., State of Texas, et al. v. EPA, 2011 

U.S. App. LEXIS 5654 (5th Cir. 2011) (finding SIP 
call to 13 states to be of nationwide scope and effect 
and thus transferring the case to the U.S. Court of 
Appeals for the D.C. Circuit in accordance with 
CAA section 307(b)(1)). 
venue for challenges to be in the D.C. 
Circuit. Thus, any petitions for review 
must be filed in the Court of Appeals for 
the District of Columbia Circuit. 
Accordingly, the EPA is proposing to 
determine that this will be a rulemaking 
of nationwide scope or effect. 

In addition, pursuant to CAA section 
307(d)(1)(V), the EPA is determining 
that this rulemaking action will be 
subject to the requirements of section 
307(d). 

XI. Statutory Authority 
The statutory authority for this action 
is provided by CAA section 101 et seq. 
(42 U.S.C. 7401 et seq.). 

List of Subjects in 40 CFR Part 52 

Affirmative defense, Air pollution 
control, Carbon dioxide, Carbon dioxide 
equivalents, Carbon monoxide, 
Environmental protection, Excess 
emissions, Greenhouse gases, 
Hydrofluorocarbons, Intergovernmental 
relations, Lead, Methane, Nitrogen 
dioxide, Nitrous oxide, Ozone, 
Particulate matter, Perfluorocarbons, 
Reporting and recordkeeping 
requirements, Startup, shutdown, and 
malfunction, State implementation plan, 
Sulfur hexafluoride, Sulfur oxides, 
Volatile organic compounds. 

Dated: February 12, 2013. 

Gina McCarthy, 

Assistant Administrator. 

[FR Doc. 2013�03734 Filed 2�21�13; 8:45 am] 

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