Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 68989 

may, on 7-days notice to the grantee, 

withhold further payment, suspend the 

supportive services grant, or prohibit 

the grantee from incurring additional 

obligations of supportive services grant 

funds, pending corrective action by the 

grantee or a decision to terminate in 

accordance with paragraph (c) of this 

section. VA will allow all necessary and 

proper costs that the grantee could not 

reasonably avoid during a period of 

suspension if such costs meet the 

provisions of the applicable Federal 

Cost Principles. 

(c) Termination. Supportive services 

grants may be terminated in whole or in 

part only if paragraphs (c)(1), (2), or (3) 

of this section apply. 

(1) By VA, if a grantee materially fails 

to comply with the terms and 

conditions of a supportive services grant 

award and this part. 

(2) By VA with the consent of the 

grantee, in which case VA and the 

grantee will agree upon the termination 

conditions, including the effective date 

and, in the case of partial termination, 

the portion to be terminated. 

(3) By the grantee upon sending to VA 

written notification setting forth the 

reasons for such termination, the 

effective date, and, in the case of partial 

termination, the portion to be 

terminated. However, if VA determines 

in the case of partial termination that 

the reduced or modified portion of the 

supportive services grant will not 

accomplish the purposes for which the 

supportive services grant was made, VA 

may terminate the supportive services 

grant in its entirety under either 

paragraphs (c)(1) or (2) of this section. 

(d) Deobligation of funds. (1) VA may 

deobligate all or a portion of the 

amounts approved for use by a grantee 

if: 

(i) The activity for which funding was 

approved is not provided in accordance 

with the approved application and the 

requirements of this part; 

(ii) Such amounts have not been 

expended within a 1-year period from 

the date of the signing of the supportive 

services grant agreement; 

(iii) Other circumstances set forth in 

the supportive services grant agreement 

authorize or require deobligation. 

(2) At its discretion, VA may readvertise in a Notice of Fund 

Availability the availability of funds 

that have been deobligated under this 

section or award deobligated funds to 

applicants who previously submitted 

applications in response to the most 

recently published Notice of Fund 

Availability. 

(Authority: 38 U.S.C. 501, 2044) 

§ 62.81 Supportive services grant closeout 

procedures. 

Supportive services grants will be 

closed out in accordance with the 

following procedures upon the date of 

completion: 

(a) No later than 90 days after the date 

of completion, the grantee must refund 

to VA any unobligated (unencumbered) 

balance of supportive services grant 

funds that are not authorized by VA to 

be retained by the grantee. 

(b) No later than 90 days after the date 

of completion, the grantee must submit 

all financial, performance and other 

reports required by VA to closeout the 

supportive services grant. VA may 

authorize extensions when requested by 

the grantee. 

(c) If a final audit has not been 

completed prior to the date of 

completion, VA retains the right to 

recover an appropriate amount after 

considering the recommendations on 

disallowed costs once the final audit has 

been completed. 

(Authority: 38 U.S.C. 501, 2044) 

[FR Doc. 2010–28407 Filed 11–9–10; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2006–0132; FRL–9223–2] 

Approval and Promulgation of 

Implementation Plans; Texas; Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunction 

Activities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finalizing its 

proposal to partially approve and 

partially disapprove a revision to the 

Texas State Implementation Plan (SIP) 

submitted by the Texas Commission on 

Environmental Quality (TCEQ) in a 

letter dated January 23, 2006 (the 

January 23, 2006 SIP submittal). Today’s 

action finalizes our May 13, 2010 

proposal that concerned revisions to 30 

Texas Administrative Code (TAC) 

Chapter 101, General Air Quality Rules, 

Subchapter A General Rules; and 

Subchapter F Emissions Events and 

Scheduled Maintenance, Startup, and 

Shutdown Activities. We are finalizing 

our proposed approval of those portions 

of the rule that are consistent with the 

federal Clean Air Act (the Act or CAA), 

and finalizing our proposed disapproval 

of those portions of the rule that are 

inconsistent with the Act. More 

specifically, we are finalizing our 

proposed disapproval of provisions that 

provide for an affirmative defense 

against civil penalties for excess 

emissions during planned maintenance, 

startup, or shutdown activities and 

related provisions that contain 

nonseverable cross-references to the 

affirmative defense provision. A 

disapproval of these provisions means 

that an affirmative defense is not 

available in an enforcement action in 

Federal court to enforce the SIP for 

violations due to excess emissions 

during planned maintenance, startup, or 

shutdown activities. We are taking this 

action under section 110 of the Act. 

DATES: This rule will be effective on 

January 10, 2011. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2006–0132. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Alan Shar, Air Planning Section (6PD– 

L), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

(214) 665–6691, fax (214) 665–7263, 

e-mail address shar.alan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 


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Table of Contents 

I. What actions did we propose? 

II. When did the public comment period end? 

III. Who submitted comments to us? 

IV. What is our final action? 

V. What are the public comments and EPA’s 

responses to them? 

A. General Comments of Support 

B. Comments Related to the SIP Stringency 

and CAA Section 110(l) Requirements 

C. Comments Related to Texas’ Phase Out 

Approach and Disapproval Effects 

D. Comments Related to National Ambient 

Air Quality Standards (NAAQS), Air 

Quality, and State Control Options 

E. Comments Related to Technical 

Infeasibility and Disapproval Effects 

F. Comments Related to EPA Guidance and 

Policies and Disapproval Effects 

G. Comments Related to Procedural 

Aspects of the Rulemaking 

H. Comments Related to Interpretation of 

30 TAC 101.221(d) 

I. Comments Related to Potential 

Enforcement Actions 

J. Comments Related to Administrative 

Necessity and One-Step-at-a-Time 

Doctrine 

K. Comments Related to Weakening of the 

SIP 

L. Comments Related to Clarification 

Requests 

VI. Final Action 

VII. Statutory and Executive Order Reviews 

I. What actions did we propose? 

In EPA’s May 13, 2010 proposal (75 

FR 26892), we proposed to partially 

approve and partially disapprove a 

revision to the Texas SIP, as submitted 

to EPA on January 23, 2006. More 

specifically, the May 13, 2010 proposal 

reflected EPA’s intent to partially 

approve and partially disapprove 

submitted revisions to 30 TAC General 

Air Quality Rule 101 into the Texas SIP, 

as outlined in the Table below. 

30 TAC General Air Quality Rule 101 Type of action Type of change 

Subchapter A, Section 101.1 (Definitions) .............................................................. Proposed Approval ................................ Revised Section. 

Subchapter F, Section 101.201 (Emissions Event Reporting and Recordkeeping 

Requirements) 1.

Proposed Approval ................................ Revised Section. 

Subchapter F, Section 101.211 (Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements) 2.Proposed Approval ................................ Revised Section. 

Subchapter F, Section 101.221 (Operational Requirements) ................................ Proposed Approval ................................ New Section. 

Subchapter F, Section 101.222 (a)–(g) (Demonstrations) ..................................... Proposed Approval ................................ New Section. 

Subchapter F, Section 101.222 (h)–(j) (Demonstrations) ....................................... Proposed Disapproval ........................... New Section. 

Subchapter F, Section 101.223 (Actions to Reduce Excessive Emissions) .......... Proposed Approval ................................ New Section. 

1Subsequent to the proposal, TCEQ withdrew section 101.201(h) from EPA’s review. Letter from Bryan W. Shaw, TCEQ Chairman to Alfredo 

Armendariz, EPA Region 6 Administrator, dated August 5, 2010. 2Subsequent to the proposal, TCEQ withdrew section 101.211(f) from EPA’s review. Letter from Bryan W. Shaw, TCEQ Chairman to Alfredo 

Armendariz, EPA Region 6 Administrator, dated August 5, 2010. 

Section E of the May 13, 2010 

proposal (75 FR at pp. 26896–26897) 

stated EPA’s reasoning for the proposal 

to disapprove sections 101.222(h) 

(Planned Maintenance, Startup, or 

Shutdown Activity), 101.222(i) 

(concerning effective date of permit 

applications), and 101.222(j) 

(concerning processing of permit 

applications) into the Texas SIP. In 

short, we proposed to disapprove 

section 101.222(h) because it provides 

an affirmative defense for excess 

emissions during planned maintenance. 

Section 101.222(h) also provides for an 

affirmative defense for excess emissions 

during planned startup and shutdown. 

However, because the provisions 

regarding excess emissions during 

planned startup and shutdown are not 

severable from that for planned 

maintenance, we proposed to 

disapprove section 101.222(h) in its 

entirety. We further noted that a 

preferable means of dealing with excess 

emissions from planned startup and 

shutdown, in cases where sources are 

unable to comply with an applicable 

emission limit during those periods, 

would be to establish an alternative 

limit that would apply during startup 

and shutdown. 

We proposed to disapprove sections 

101.222(i) and (j), which concern the 

timing and processing procedures for 

permits that would address excess 

emissions during periods of 

maintenance, startup or shutdown, 

because those provisions were not 

severable from section 101.222(h). For 

more detail, see 75 FR 26896–26897 of 

the May 13, 2010 proposal. 

We proposed to approve section 101.1 

(Definitions) because it provides for 

consistency among Subchapters A and 

F, thereby facilitating implementation of 

the rule and other legislative changes. 

We proposed to approve section 101.201 

(Emissions Event Reporting and 

Recordkeeping Requirements), because 

it establishes new requirements that 

local air pollution authorities be 

informed of excess emissions. We 

proposed to approve section 101.211 

(Scheduled Maintenance, Startup, and 

Shutdown Reporting and Recordkeeping 

Requirements), because it provides for 

reporting and recordkeeping of the 

initial notification and final report of 

the scheduled maintenance, startup, and 

shutdown activities. We proposed to 

approve section 101.221 (Operational 

Requirements) because it provides the 

requirement that air pollution 

abatement equipment must be 

maintained and be in good working 

order. We proposed to approve section 

101.222(a)–(g) (Demonstrations) because 

it provides an affirmative defense for 

certain emission events that is 

consistent with the interpretation of the 

Act as set forth in our guidance 

documents. We also proposed to 

approve section 101.223 (Actions to 

Reduce Excessive Emissions) because it 

provides for a corrective action plan and 

written notification for facilities 

determined to have excessive emission 

events to take necessary actions to 

reduce the future occurrence of such 

events. 

II. When did the public comment 

period end? 

EPA’s proposed action of May 13, 

2010 (75 FR 26892) provided a 30-day 

public comment period. During this 

30-day period we received 7 letters 

requesting EPA extend the public 

comment period. In response, we 

extended the public comment period by 

two weeks, such that it closed on June 

28, 2010, rather than June 14, 2010. See 

75 FR 33220 (June 11, 2010). 

III. Who submitted comments to us? 

During the public comment period, 

we received written comments on our 

May 13, 2010 proposal (75 FR 26892) 

from the Lower Colorado River 

Authority; Texas Municipal Power 

Agency; National Environmental 

Development Association’s Clean Air 

Project; Texas Industry Project; 

American Electric Power; Luminant; 

Utility Air Regulatory Group; Texas Oil 

and Gas Association; Texas Association 

of Business; Texas Commission on 

Environmental Quality; Texas Mining 

and Reclamation Association; Gulf 

Coast Lignite Coalition; San Miguel 


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3Furthermore, although not included as part of 

the approved SIP, the title V deviation reporting 

requirements provide significant information to the 

State (which is also available to EPA and the 

public) regarding emission event violations. 

4An affirmative defense is defined, in the context 

of an enforcement proceeding, as 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. By demonstrating that the elements of 

an affirmative defense have been met, a source may 

avoid a civil penalty, but not injunctive relief. 

5Although we interpret the Act to allow for an 

affirmative defense for excess emissions during 

startup and shutdown, we note that the current 

Texas rule includes a defect which could prevent 

our approval of this provision in the future if 

submitted in the same form. Specifically, instead of 

identifying the criteria a source must meet to assert 

an affirmative defense for planned activities, the 

Texas rule cross-references the criteria that apply 

for unplanned events. Thus, sources might argue 

that many of the criteria would not apply and 

would not need to be proved when asserting an 

affirmative defense. The criteria that a source must 

prove in asserting a defense are critical for ensuring 

that the defense will not be abused. Thus, any 

future rule submitted by the State must be clear 

about the applicable criteria that apply and those 

criteria must ensure that, among other things, 

excess emissions were not due to inadequate 

design, that the facility was operated consistent 

with good practices for minimizing emissions and 

the frequency and duration of operation in startup 

or shutdown mode was minimized. See the 1999 

Policy at 6. 

Electric Cooperative; Association of 

Electric Companies of Texas; and 

Environmental Clinic—University of 

Texas School of Law on behalf of 

Citizens for Environmental Justice, Lone 

Star Chapter Sierra Club, Public 

Citizen’s Texas Office, Air Alliance 

Houston, Environmental Integrity 

Project, and Environmental Defense 

Fund. 

IV. What is our final action? 

Except for two provisions that were 

withdrawn by the State by letter dated 

August 5, 2010, as described below, we 

are finalizing our proposal to approve 

revisions to 30 TAC Chapter 101, 

Subchapter A General Rules; and 

Subchapter F Emissions Events and 

Scheduled Maintenance, Startup, and 

Shutdown Activities of the January 23, 

2006 SIP submittal as revisions to the 

federally-approved Texas SIP. 

Subsequent to the publication of the 

proposed rule, in a letter dated August 

5, 2010, TCEQ notified EPA of its 

withdrawal from EPA review of sections 

101.201(h) (concerning annual 

emissions event reporting) and 

101.211(f) (concerning annual 

scheduled maintenance, startup, and 

shutdown activity reporting), as adopted 

by the TCEQ on December 14, 2005. The 

withdrawal of these two pieces of the 

submission does not affect our ability to 

take final action approving the 

remaining pieces we proposed to 

approve. As an initial matter, the 

withdrawn portions are independent 

provisions that are severable from the 

remaining regulations pending before 

EPA. In addition, the withdrawal of 

these provisions does not create a defect 

in the remaining portions of the rule for 

which we proposed approval. 

Paragraphs (a) through (g) of section 

101.201 and paragraphs (a) through (e) 

of section 101.211 acted upon today 

contain all of the necessary 

requirements for how and when to 

report excess emissions events. TCEQ 

only withdrew the annual reporting 

requirement in the two paragraphs, and 

an annual reporting requirement is not 

a criterion for an approvable excess 

emissions SIP revision. Furthermore, 

TCEQ already has the ability to collect 

emissions information under the Texas 

SIP at the Emission Inventory 

Requirements in 30 TAC sections 101.10 

(b) and (f), which require an owner or 

operator to submit emission inventories 

and/or related data, including excess 

emissions occurring during 

maintenance activities, startup and 

shutdowns, and upset conditions, to the 

state.3 Section 101.10 was approved into 

Texas SIP on January 26, 1999 at 64 FR 

3847. 

Because the submitted rule and the 

Texas SIP already contain adequate 

reporting requirements for excess 

emissions during planned and 

unplanned startup, shutdown, 

maintenance and malfunction events, 

TCEQ’s withdrawal of the sections 

referenced above does not affect our 

partial approval of the remaining 

portions of the rule which were 

proposed for approval. Thus, as 

described below, we are taking final 

action to approve all of the provisions 

for which we proposed approval, with 

the exception of withdrawn sections 

101.201(h) and 101.211(f) of the January 

23, 2006 SIP submittal. We have made 

TCEQ’s August 5, 2010 withdrawal 

letter available for public inspection in 

the docket associated with this action, 

identified as EPA–R06–OAR–2006– 

0132. 

In summary, we are finalizing our 

May 13, 2010 proposal to approve 

Subchapter A, section 101.1 

(Definitions); and Subchapter F, 

sections 101.201 (Emissions Event 

Reporting and Recordkeeping 

Requirements) (except for 101.201(h)), 

101.211 (Scheduled Maintenance, 

Startup, and Shutdown Reporting and 

Recordkeeping Requirements) (except 

for 101.211(f)), 101.221 (Operational 

Requirements), 101.222(a) through (g) 

(Demonstrations), and 101.223 (Actions 

to Reduce Excessive Emissions) into the 

Texas SIP. We are approving these 

provisions for the reasons provided in 

our proposed approval: They clarify 

existing reporting requirements; they 

clarify that the rule does not allow 

exemptions from compliance with 

federal requirements, including any 

requirements in the federally-approved 

SIP; they provide for an affirmative 

defense 4 from unplanned startup, 

shutdown, or maintenance (i.e., 

malfunctions), consistent with the CAA 

as interpreted by EPA; and they provide 

for a corrective action plan and written 

notification concerning excessive 

emission events. See section D of our 

May 13, 2010 proposal (75 FR at 26894). 

We are also finalizing our May 13, 

2010 proposal to disapprove sections 

101.222(h) (Planned Maintenance, 

Startup, or Shutdown Activity), 

101.222(i) (concerning effective date of 

permit applications), and 101.222(j) 

(concerning processing of permit 

applications) of the January 23, 2006 

submittal. As we explain more fully 

below, we are disapproving section 

101.222(h) because it provides an 

affirmative defense against penalties for 

excess emissions during planned 

maintenance activities. Because the 

portions of section 101.222(h) that 

provide an affirmative defense for 

excess emissions during planned startup 

and shutdown are not severable from 

the provision for maintenance, those 

provisions are also disapproved.5

Section 101.222(i) concerns the 

scheduling and applicable effective 

dates for permit applications submitted 

to TCEQ for sources that request 

unauthorized emissions associated with 

the planned maintenance, startup, or 

shutdown activities be permitted. Since 

section 101.222(i) is not severable from 

section 101.222(h), which we are 

disapproving, we are disapproving 

section 101.222(i). Section 101.222(j) 

concerns the processing of permit 

applications referenced in 101.222(h), 

and provides the Executive Director 

with the authority to process, review, 

and permit unauthorized emissions 

from planned maintenance, startup, or 

shutdown activities. We explained our 

reasons for proposing to disapprove 

section 101.222(h) above. Since section 

101.222(j) is not severable from section 

101.222(h), which we are disapproving, 

we are disapproving section 101.222(j). 

In light of the comments received on 

this action, we provide in more detail 

here our rationale for our final action 


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6More recently, and consistent with an additional 

approach discussed in the 1999 Policy (at 4–5), 

with respect to planned startup and shutdown 

events, EPA has encouraged States to address 

planned startup and shutdown in their SIPs. For 

those sources and source categories where 

compliance with the applicable limit is not possible 

during startup and/or shutdown, the State should 

develop alternative, applicable emission limits for 

such events, which they can consider in SIPs 

demonstrating attainment and maintenance of the 

NAAQS. As part of its justification of the SIP 

revision and in order to address potential impacts 

on attainment and maintenance of the NAAQS, the 

State should analyze the impact of the potential 

worst-case emissions that could be anticipated to 

occur during startup and shutdown. 

7We note that if excess emissions occur during 

maintenance and because of a malfunction, the 

affirmative defense for malfunctions might be 

available to the source for such maintenance 

activity as part of the broader malfunction event. 

disapproving that provision. EPA’s 

interpretation of the CAA is that it is not 

appropriate for SIPs to exempt periods 

of startup, shutdown, maintenance or 

malfunction from compliance with 

applicable emission limits. This is 

supported by the definition of ‘‘emission 

limitation’’ in section 302(k) of the Act, 

which requires emissions be limited on 

a ‘‘continuous’’ basis. In addition, we 

have noted that because SIPs are used 

to demonstrate how an area will attain 

and maintain health-based standards, it 

is not appropriate to exempt any periods 

of operation from compliance with the 

limits relied on to demonstrate that 

public health will be protected. We 

recognize that courts have disagreed 

whether it may be appropriate to 

provide for certain exceptions from 

compliance with emission limits when 

setting technology based standards. 

Mossville Environmental Action Now v. 

EPA, 370 F.3d 1232, 1242 (DC Cir. 2004) 

(upholding, as reasonable, standards 

that had factored in variability of 

emissions under all operating 

conditions). See, Weyerhaeuser v. 

Costle, 590 F.2d 1011, 1058 (D.C. Cir. 

1978) (‘‘In the nature of things, no 

general limit, individual permit, or even 

any upset provision can anticipate all 

upset situations. After a certain point, 

the transgression of regulatory limits 

caused by ‘uncontrollable acts of third 

parties,’ such as strikes, sabotage, 

operator intoxication or insanity, and a 

variety of other eventualities, must be a 

matter for the administrative exercise of 

case-by-case enforcement discretion, not 

for specification in advance by 

regulation.’’). Although one might argue 

that it is appropriate to account for such 

variability in technology-based 

standards, EPA’s longstanding position 

has been that it is not appropriate to 

provide exemptions from compliance 

with emission limits in SIPs that are 

developed for the purpose of 

demonstrating how to attain and 

maintain the public health-based 

NAAQS. For purposes of demonstrating 

attainment and maintenance, States 

assume source compliance with 

emission limitations at all times. Thus, 

broad provisions that would exempt 

compliance during periods of startup, 

shutdown, malfunction and/or 

maintenance would undermine the 

integrity of the SIP. Recently, in the 

context of the CAA section 112 program 

regulating emissions of hazardous air 

pollutants, the court in Sierra Club v. 

EPA, 551 F.3d 1019 (DC Cir. 2008), cert. 

denied, 130 S. Ct. 1735 (U.S. 2010), held 

that the CAA section 302(k) definition 

of emission standard or emission 

limitation in conjunction with the 

provisions of section 112 require 

continuous compliance with section 

112-compliant standards. We believe 

that this case supports EPA’s longstanding interpretation in the SIP 

context that it is inappropriate to 

exempt periods of startup, shutdown 

and malfunction and/or maintenance 

from compliance with emission 

limitations. 

Although EPA has long interpreted 

the CAA to bar States from including 

exemptions from compliance with 

applicable emission limitations during 

periods of startup, shutdown, 

maintenance and malfunction, we have 

also recognized that sources may, 

despite good practices, be unable to 

meet emission limitations during 

periods of startup and shutdown and, 

that despite good operating practices, 

sources may suffer a malfunction due to 

events beyond the control of the owner 

or operator. EPA’s early policies 

provided that these events should be 

addressed through enforcement 

discretion. See the memorandum dated 

September 28, 1982, from Kathleen M. 

Bennett, Assistant Administrator for 

Air, Noise, and Radiation entitled 

‘‘Policy on Excess Emissions During 

Startup, Shutdown, Maintenance, and 

Malfunctions’’ (1982 Policy); and EPA’s 

clarification to the above policy 

memorandum dated February 15, 1983, 

from Kathleen M. Bennett, Assistant 

Administrator for Air, Noise, and 

Radiation (1983 Policy). Later, in 

practice, and then as reflected in a 1999 

Policy memorandum, EPA adopted an 

interpretation of the Act that would 

allow sources to assert an affirmative 

defense to periods of excess emissions 

during startup, shutdown and 

malfunction in an enforcement action 

for penalties, though not in an action for 

injunctive relief. As explained in the 

1999 Policy, in the course of an 

enforcement action for penalties, a 

source could assert the affirmative 

defense and the burden would be on the 

source to prove enumerated factors, 

including that the period of excess 

emissions was minimized to the extent 

practicable and that the emissions were 

not due to faulty operations or disrepair 

of equipment.6

The criteria a source must prove when 

asserting an affirmative defense, as 

provided in the 1999 Policy, are 

consistent with the criteria identified in 

section 113(e) of the CAA that the courts 

and EPA may consider in determining 

whether to assess a penalty (and, if so, 

what amount) in the context of an 

enforcement action. Our goal in 

developing the criteria recommended in 

the 1999 Policy was to provide an 

avenue for relief from penalties for 

actions that are outside the control of an 

owner or operator who is making best 

efforts to operate consistent with 

applicable requirements. In other words, 

we believe it is important to tailor the 

factors so that they encourage sources to 

make best efforts to comply with 

emission limits that are intended to 

bring an area into attainment with and 

to maintain health-based air quality 

standards. We believe, however, that 

maintenance activities can and should 

be scheduled during process 

shutdowns. To the extent they are not, 

the source should ensure that control 

equipment can be consistently effective 

during maintenance activities. Thus, we 

do not believe that an affirmative 

defense for excess emissions during 

planned maintenance is appropriate 

since there should not be circumstances 

during which a source should exceed 

emission limits during maintenance.7

Although we do not believe it is 

appropriate to approve an affirmative 

defense for excess emissions during 

maintenance into the SIP, section 113(e) 

of the Act still provides that a source 

may raise factors in an enforcement 

action that the Administrator or a court 

may consider in determining an 

appropriate penalty. 

We note that States are not required 

to provide an affirmative defense 

approach, but, if they choose to do so, 

EPA will evaluate the State’s submitted 

rules to ensure they meet the 

requirements of the Act as interpreted 

by EPA through the policy and guidance 

documents listed in Section B of the 

May 13, 2010 proposal, including EPA’s 

1999 Policy. In order to be consistent 

with the Act, an affirmative defense 

must be narrowly-tailored in order not 

to undermine the enforceability of the 

SIP. An effective enforcement program 

must be able to collect penalties to deter 

avoidable violations. Thus, the SIP 


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8To the extent there may be a unique situation 

where maintenance cannot be performed at a time 

and in a manner that would ensure compliance 

with an applicable emission limitation, the State 

can consider establishing alternative limits that 

would apply during such events. However, such a 

situation does not support the creation of an 

affirmative defense that would apply more broadly 

to a variety of maintenance activities. 

should only provide the defense for 

circumstances where it is infeasible to 

meet the applicable limit and the 

criteria that the source must prove 

should ensure that the source has made 

all reasonable efforts to comply. 

Otherwise, such an approach could 

undermine the enforceability and 

attainment demonstration requirements 

of the Act. Because, as discussed above, 

we do not believe that it is infeasible for 

sources to meet applicable limits during 

planned maintenance, we are 

disapproving section 101.222(h).8

We further note, as provided in more 

detail in our proposed rule, that 

severing the unapprovable provisions 

(Sections 101.222(h), (i), and (j)) of the 

rule does not affect the effectiveness or 

the enforceability of the remaining 

portions of the rule that we are 

approving in this final action. Section D 

of our May 13, 2010 (75 FR 26894) 

proposal stated the reasons for 

approving portions of the submittal, and 

Section E (75 FR 26896) explained why 

we proposed disapproval of sections 

101.222(h), (i), and (j). As explained in 

the proposed rule at 75 FR 26893, we 

believe sections 101.222(h), 101.222(i), 

and 101.222(j) are severable from, and 

independent of, the remainder of the 

January 26, 2006 SIP submittal. 

Disapproving these provisions does not 

make the portions of the submission 

that we are proposing to approve more 

stringent than the State intended. The 

provisions being disapproved address 

completely separate activities when 

excess emissions occur (planned 

activities) from those addressed by the 

provisions being approved (unplanned 

activities). The approved provisions will 

provide the exact limited relief intended 

by the State for sources covered by those 

provisions: A source may assert an 

affirmative defense in an action seeking 

penalties for a violation of an applicable 

emission limit during unplanned 

startup, shutdown, malfunction or 

maintenance activity. In asserting the 

affirmative defense, the source has the 

burden to prove certain criteria have 

been met. EPA’s action disapproving 

similar relief for excess emissions 

during planned activities does not affect 

the stringency of the defense being 

approved for periods of excess 

emissions during unplanned activities. 

V. What are the public comments and 

EPA’s responses to them? 

We have evaluated the comments 

received on the proposed rule and, as 

provided above, have determined to 

take final action consistent with our 

proposal, with the exception that we are 

not taking final action on two provisions 

withdrawn by the State. A summary of 

the comments and our responses are 

provided below. 

A. General Comments of Support 

Comments: Two commenters 

expressed support for EPA’s proposed 

approval of those sections of the January 

23, 2006 SIP submittal, identified with 

‘‘proposed approval’’ in the above Table. 

Many other commenters requested that 

EPA approve not only those sections 

identified with ‘‘proposed approval’’ in 

the above Table but also the entire 

January 23, 2006 SIP submittal. Another 

commenter expressed support for EPA’s 

proposal to disapprove certain sections 

of the January 23, 2006 SIP submittal, 

and requested EPA disapprove the 

entire January 23, 2010 SIP submittal as 

it relates to affirmative defenses. 

Response: EPA appreciates the 

support of the commenters who agree 

with EPA’s proposed action. We have 

also considered the concerns expressed 

by the commenters who disagreed with 

all or a portion of EPA’s proposed 

action, as discussed below in response 

to the commenters’ more detailed 

comments. 

B. Comments Related to the SIP 

Stringency and CAA Section 110(l) 

Requirements 

Comments: Several commenters 

characterized the January 23, 2006 SIP 

submittal as substituting a more 

stringent affirmative defense for a preexisting SIP-approved automatic 

exemption for excess emissions, or that 

the submittal eliminates an exemption 

or affirmative defense. Other 

commenters expressed concern that 

EPA’s partial approval would 

unlawfully increase the stringency of 

the Texas SIP. One commenter asserted 

that partial disapproval would expose 

sources to civil penalties. Another set of 

commenters stated that EPA’s proposed 

disapproval is contrary to section 110(l) 

of the Act and an unmerited expansion 

of a solution to the problem of 

historically unauthorized emissions. 

Two commenters stated that section 

101.222(h) incorporates by reference 

section 101.222(c)(9) which means that 

excess emissions would not be eligible 

for an affirmative defense if such events 

interfere with attainment and 

maintenance of the NAAQS. They argue 

that EPA has failed to show how the 

affirmative defense would interfere with 

the attainment and maintenance of the 

NAAQS. One commenter noted 

improvements to the air quality in Texas 

over the last 10 years despite increases 

in population, and claims that the 

affirmative defense provisions in the 

January 23, 2006 SIP submittal require 

a demonstration that the covered 

emissions did not cause NAAQS 

exceedances. 

Response: We disagree that our action 

increases the stringency of the approved 

SIP. The federally-approved Texas SIP 

does not provide either an exemption 

for or an affirmative defense to excess 

emissions occurring during periods of 

planned or unplanned startup, 

shutdown, maintenance, or malfunction 

activities. Previously approved 

provisions that addressed excess 

emissions expired from the SIP on their 

own terms as of July 1, 2006. Thus, 

under the federally-approved Texas SIP, 

excess emissions are violations of the 

applicable emission limits, and the SIP 

does not include any provision for 

asserting an affirmative defense in 

response to an enforcement proceeding 

for excess emissions during planned or 

unplanned maintenance, startup, 

shutdown or malfunction. Thus, the 

action we are finalizing in this 

rulemaking—approving an affirmative 

defense available in an enforcement 

action for penalties for periods of excess 

emissions during unplanned 

maintenance, startup, shutdown 

activities (including opacity events)— 

does not make the approved SIP more 

stringent. Rather, it provides an avenue 

of limited relief in an action for 

penalties for a source that violates an 

applicable emission limit and can prove 

certain criteria have been met. Thus, the 

comments asserting that the partial 

disapproval would expose sources to 

penalties are incorrect, since excess 

emissions are violations of the existing 

SIP and the existing SIP does not 

contain affirmative defense provisions 

that provide relief in an action for 

penalties for any period of excess 

emissions. 

In response to the commenter’s 

concern that our disapproval would 

increase the stringency of the Texas SIP, 

we note further that section 110(k)(3) of 

the CAA provides that the administrator 

can approve a plan in part and 

disapprove a plan in part. A partial 

approval/partial disapproval action is 

permissible when portions of the plan 

are separable. ‘‘Separable’’ means the 

approved portions of the SIP revision 

should not result in the approved 

portions of the SIP submission being 

more stringent than the State would 


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have anticipated. The State’s submitted 

provisions for an affirmative defense for 

excess emissions from unplanned 

maintenance, startup, or shutdown 

activities are separable from the 

provisions of the rule that we are 

disapproving. Our action has no effect 

on the stringency of the approved 

portions of the rule. The portions of the 

rule we are approving today that 

provide for an affirmative defense for 

excess emissions during unplanned 

maintenance, startup, or shutdown, and 

malfunction activities (as identified 

with ‘‘proposed approval’’ in the above 

Table) will operate exactly the same 

way under the federally approved SIP as 

they do under state law. 

With respect to EPA’s application of 

section 110(l) of the CAA in this 

rulemaking action, we agree that section 

110(l) provides that EPA cannot approve 

a proposed SIP revision that would 

interfere with attainment or 

maintenance of the NAAQS. In 

addition, it provides that EPA cannot 

approve a SIP revision that would 

interfere with any other applicable 

requirement of the Act. Section 110(l) 

applies to this action, since the action 

is one that revises the existing SIP. We 

note that the portions of the January 23, 

2006 SIP submittal we are approving do 

not modify any applicable emission 

limitation, nor do they authorize 

violations of applicable emission 

limitations. All emissions in excess of 

the applicable emission limits are 

considered violations. The affirmative 

defense neither authorizes nor condones 

such events and it is narrowly tailored 

consistent with our interpretation that 

such a defense not undermine the 

enforcement or attainment provisions of 

the Act. Thus, we have concluded that 

the affirmative defense provisions we 

are approving into the SIP will not 

interfere with attainment or 

maintenance of the NAAQS and, as 

explained in more detail above, such 

provisions are consistent with other 

applicable requirements of the Act. We 

further note that the affirmative defense 

is limited to actions for penalties and 

may not apply to actions for injunctive 

relief. Thus, to the extent the State, EPA 

or a private citizen is concerned that 

excess emissions might be causing or 

contributing to a violation of the 

NAAQS, they can seek a court order to 

abate the activity. We disagree with 

those commenters who suggest that in 

order for EPA to disapprove a SIP 

revision, section 110(l) requires EPA to 

demonstrate that there will be a 

violation of the NAAQS if EPA approves 

the SIP revision. As an initial matter, we 

note that the language in section 110(l) 

provides that EPA must disapprove a 

SIP revision if it ‘‘would interfere with 

any applicable requirement concerning 

attainment.’’ This is quite distinct from 

an obligation to prove that a violation 

will occur. We believe that provisions 

that provide relief from penalties should 

be limited to circumstances where 

sources are unable to comply despite 

best efforts and, as explained above, we 

believe that maintenance activities can 

be scheduled at times that would avoid 

the occurrence of excess emissions. We 

further note that section 110(l) also 

provides that EPA may not approve a 

SIP revision that interferes with any 

applicable requirement of the Act. As 

explained more fully above, because 

maintenance activities can be planned 

to occur during planned outages, we do 

not believe that an affirmative defense 

for penalties is appropriate for excess 

emissions occurring during such 

planned maintenance activities. 

Allowing such a provision would 

undermine the enforceability, as well as 

the attainment, requirements of the Act. 

Comment: One commenter stated that 

the New Mexico SIP provides for an 

affirmative defense to maintenancerelated activities. 

Response: Our review of a SIP 

revision submittal is governed by 

section 110(l) of the Act. Assuming for 

the moment that the New Mexico SIP 

contained a provision identical to that 

we are disapproving today for Texas, 

section 110(l) would still bar our 

approval of the rule into the Texas SIP 

for the reasons provided previously. The 

fact that we may have erred in 

approving a SIP for one State does not 

support an argument that we should 

make the same error with respect to a 

different State. In any event, we note 

that the commenter does not point to a 

specific provision in the New Mexico 

SIP to support its argument, and we are 

unaware of any provision in the New 

Mexico SIP that provides an affirmative 

defense for excess emissions during 

planned maintenance. 

Comment: Other commenters claim 

that EPA’s disapproval would create 

inequities between Texas sources and 

sources in other states whose programs 

contain affirmative defenses for startup 

or shutdown activities. 

Response: We disagree. The 

commenters are referring to perceived 

inequities which are attributable to 

TCEQ’s action combining a ‘‘planned 

maintenance’’ activity in section 

101.222(h) with a ‘‘startup’’ or 

‘‘shutdown’’ activity, leaving EPA no 

recourse but to partially disapprove the 

January 23, 2006 SIP submittal. 

C. Comments Related to Texas’ Phase 

Out Approach and Disapproval Effects 

Comments: Some commenters 

characterized the January 23, 2006 SIP 

submittal as TCEQ’s phase-out of a 

regulatory scheme in which excess 

emissions during planned maintenance, 

startup, or shutdown (MSS) activities 

were exempt from compliance to one 

where such emissions would become 

authorized under a permit. Other 

commenters claimed that EPA’s 

disagreement with the Texas approach 

was not adequately explained. These 

commenters stated that the point of 

difference between EPA and TCEQ must 

have originated from the procedures and 

timing TCEQ is providing to affect its 

phase-out. As a result, EPA’s partial 

disapproval would disrupt an orderly 

transition resulting in negative impacts 

(including interstate inequities) at the 

expense of Texas facilities and causing 

companies to forgo preventative 

maintenance. TCEQ commented on the 

reasons supporting its phase-out 

approach (which includes the categories 

of sources likely to report the majority 

of excess emissions, the degree of 

complexity of processing of permit 

applications for planned MSS activities 

for these categories, and facilitating the 

orderly/temporary transition to 

appropriate permit limits and 

requirements) and its plan to exercise 

enforcement discretion when reviewing 

excess emissions from planned MSS 

activities that fail to meet the schedule 

set forth in 30 TAC § 101.222(h). One 

commenter asserted that TCEQ’s 

provision for an affirmative defense to 

emissions from planned maintenance 

activities is a direct response to EPA’s 

comments to TCEQ. 

Response: As an initial matter, it is 

important to understand what the 

commenters are referring to. The 

January 23, 2006 SIP submittal 

submitted by the State relates to a 

broader process envisioned by the State 

where it would have provisions in the 

Texas SIP that would address excess 

emissions during unplanned and 

planned MSS and malfunctions 

activities and also establish a process 

and schedule for addressing emissions 

from planned MSS for sources through 

a New Source Review (NSR) SIP 

permitting process. Pursuant to the 

January 23, 2006 SIP submittal, as 

sources apply for and receive NSR SIP 

permits that authorize emission 

limitations for the emissions occurring 

during planned MSS activities, then 

under the State’s submitted transition 

process, the affirmative defense 

provisions addressing excess emissions 

during periods of planned MSS would 


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no longer apply upon the issuance of 

the NSR SIP permit. Instead, the terms 

and conditions, including the newly 

imposed emission limitations for the 

planned MSS emissions, of the NSR SIP 

permit would apply. 

EPA’s role in evaluating a proposed 

SIP revision is to make sure that the 

revision would not potentially interfere 

with attainment and maintenance of the 

NAAQS or any other applicable 

requirement of the Act. Thus, we must 

determine whether the State’s regulatory 

choices are consistent with the federal 

Clean Air Act, including the obligation 

to attain and maintain the NAAQS and 

the ability to adequately enforce the 

obligations in the approved SIP. See 

42 U.S.C. 7410(k); 40 CFR 52.02(a). We 

explain our reasons for proposing 

disapproval of sections 101.222(h), (i), 

and (j) in section E of the May 13, 2009 

proposal (75 FR 26892) and provide 

more detail above. 

The commenters are incorrect that our 

disapproval of the three provisions is 

based on a ‘‘difference’’ with Texas over 

their approach to address periods of 

excess emissions as part of a broader 

permitting effort. The basis for our 

disapproval is explained above and is 

separate from any concern that we may 

have with Texas’ overall approach to 

addressing excess emissions through 

permitting. The State’s choice to create 

a permitting process to address excess 

emissions during planned maintenance, 

startup, or shutdown activities does not 

justify an approval into the SIP—even 

for a temporary period of time—a 

provision that we believe is inconsistent 

with the Act. We agree with the State 

that it is appropriate to consider 

appropriate emission limits that would 

apply during periods of planned startup 

and shutdown and to incorporate them 

into NSR SIP permits. As provided in 

the 1999 Policy, where it is not possible 

for sources to comply with applicable 

emission limits during periods of 

startup and shutdown, it is appropriate 

for the State to develop alternative 

emission limits that would apply during 

such periods. This can include the State 

using its EPA-approved NSR SIP 

requirements. However, we note that the 

State cannot issue any NSR SIP permit 

that has a less stringent emission limit 

than already is contained in the 

approved SIP. For example, the State 

cannot issue a NSR SIP permit that has 

less stringent Volatile Organic 

Compounds limits than those in Chapter 

115 as approved into the Texas SIP, or 

less stringent Oxides of Nitrogen (NOX) 

limits in Chapter 117 as approved into 

the Texas SIP. The State must issue a 

NSR SIP permit that meets all 

applicable requirements of the Texas 

SIP. If the State wishes to issue a NSR 

SIP permit that does not meet the 

applicable requirements of the Texas 

SIP, then any such alternative limits 

would need to be submitted to EPA for 

approval as a source-specific revision to 

the SIP, before they would modify the 

federally applicable emission limits in 

the approved SIP. 

We disagree with the commenters 

who suggest that the partial disapproval 

will disrupt the orderly transition 

contemplated by Texas in which 

sources will address excess emissions in 

permits. As we have noted before, the 

current SIP does not provide an 

affirmative defense for any period of 

excess emissions. Thus, our disapproval 

of the provisions providing an 

affirmative defense for excess emissions 

during periods of planned maintenance, 

startup, or shutdown activities does not 

affect the status quo. 

The commenters also appear to be 

asserting that EPA’s disapproval of the 

submitted affirmative defense provision 

for excess emissions during planned 

maintenance, startup, and shutdown 

activities (which would apply in the 

period before a specific source applies 

for and receives a NSR SIP permit) 

would unfairly disadvantage sources. To 

the extent that the commenters are 

concerned that an inequity is created by 

Texas’ phased-out approach for 

addressing periods of excess emissions 

through the permitting process, that 

inequity is created by the system 

developed by the State, not by EPA’s 

partial disapproval of the SIP. These 

commenters appear to assume that 

EPA’s approval of the submitted 

affirmative defense provision for excess 

emissions during planned MSS 

activities is needed only as a 

‘‘temporary’’ measure until the State 

finishes issuing all affected sources their 

NSR SIP permits containing emissions 

limitations for these types of emissions. 

However, the State-issued NSR SIP 

permits must meet all applicable 

requirements under the EPA-approved 

Texas SIP. Should the State wish to 

issue a NSR SIP permit addressing 

periods of excess emissions during 

planned MSS activities that will not 

meet all of the requirements in the 

Texas SIP, then that particular NSR SIP 

permit must be submitted by the State 

to EPA for approval as a source-specific 

SIP revision. 

The comment claiming that TCEQ 

added an affirmative defense for 

planned maintenance based on a 

comment from EPA provides no detail. 

We are unaware of any statement that 

we made that would have encouraged 

the State to add such a provision and 

the commenter does not reference any 

specific comment from EPA. Regardless 

of whether any statements were made, 

an affirmative defense for planned 

maintenance is not appropriate under 

the Act. Because the affirmative defense 

for planned maintenance is not 

severable from that for planned startup 

or shutdown, we are disapproving in 

whole the provision (section 101.222(h)) 

that establishes the affirmative defense 

for planned maintenance, startup, or 

shutdown activities. 

D. Comments Related to NAAQS, Air 

Quality, and State Control Options 

Comments: Some commenters 

contend that EPA’s proposed 

disapproval is contrary to the 

cooperative federalism principles in the 

Act, referencing CleanCOALition v. 

TXU Power, 536 F.3d 469, 471 (5th Cir. 

2008) and Fla. Power & Light Co. v. 

Costle, 650 F.2d 579, 581 (5th Cir. 

1981), and amounts to second guessing 

Texas’ reasonable choices for how to 

achieve the NAAQS, including opacity 

limits in 30 TAC Chapter 111. These 

commenters continue by stating that 

EPA’s disapproval would lead to 

interstate inequities and remove 

permitting incentives. 

Response: Under the NAAQS 

provisions of the CAA, air pollution 

control at its source is the primary 

responsibility of States and local 

governments. EPA is respectful of the 

Act and cognizant of the cooperative 

federalism principle contained therein. 

However, while the Act does give States 

a fair degree of latitude in choosing the 

mix of controls necessary to meet and 

maintain the NAAQS, it also places 

some limits on the choices States can 

make. EPA’s role is to ensure that the 

SIP submittal is consistent with the 

CAA. Any SIP submittal, including 

revisions to 30 TAC Chapter 101, must 

adhere to applicable requirements of the 

federal CAA, including the obligation to 

provide for attainment and maintenance 

of the NAAQS and to ensure that the 

SIP may be adequately enforced. EPA’s 

statutory responsibilities in reviewing a 

SIP is to ensure it meets the 

requirements of the Act, including those 

in section 110(a)(2) and section 172(c). 

As explained in the May 13, 2010 

proposal and above, as part of EPA’s 

review, we determined that the 

provision providing for an affirmative 

defense for excess emissions during 

planned maintenance is inconsistent 

with the CAA. 

With respect to the comments that 

suggest that our proposed disapproval 

will lead to removal of permitting 

incentives, we disagree. The submitted 

transition permitting process is the 

State’s choice for how to handle excess 


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emissions during planned maintenance, 

startup, or shutdown activities. Under 

the State’s chosen transition process, 

after a source receives a NSR SIP permit 

that establishes emission limitations 

upon the planned maintenance, startup, 

or shutdown emissions, then the source 

no longer can assert an affirmative 

defense for excess emissions during 

planned MSS activities. The source can 

choose between a potential enforcement 

action (and whether it will prevail in its 

assertion of affirmative defense) or 

obtaining a NSR SIP permit that sets 

limits on the excess emissions during 

planned maintenance, startup, or 

shutdown activities. Thus, we do not 

see how the presence or absence of an 

affirmative defense for excess emissions 

during planned maintenance, startup, or 

shutdown activities in the SIP will 

affect the choice a source might make 

regarding permitting. Furthermore, we 

disagree with the comment that our 

disapproval will create interstate 

inequities because other SIPs contain 

affirmative defenses for excess 

emissions during planned maintenance 

activities. The commenter references no 

specific SIPs that contain provisions 

similar to what we are disapproving in 

this action. As stated above, our review 

of a SIP revision submittal is governed 

by section 110(l) of the Act; to the extent 

we may have erred in approving an 

affirmative defense for excess emissions 

during planned maintenance into a SIP 

for one State does not support an 

argument that we should make the same 

error with respect to a different State. 

Within Texas, however, we note that 

based upon our disapproval, an 

affirmative defense for excess emissions 

during periods of planned MSS would 

be equally unavailable to any source. 

For discussion concerning opacity 

limits in 30 TAC Chapter 111, see 

section H of this document. 

Comment: One commenter notes the 

similarities between the proposed SIP 

revisions and the New Source 

Performance Standards (NSPS) 

requirements for SSM events. 

Response: As an initial matter, we 

note that there are several differences 

between the proposed SIP revision and 

the NSPS requirements. First, the NSPS 

provisions in 40 CFR 60.11 do not 

establish an affirmative defense, but 

rather exempt periods of excess 

emissions during startup, shutdown and 

malfunction from compliance with 

underlying emissions limits, unless 

otherwise specified. The provision does 

not establish an affirmative defense nor 

does it address periods of maintenance. 

Even assuming the NSPS provisions 

were similar, however, we note that the 

Agency has historically allowed more 

flexibility in addressing emissions 

during startup, shutdown and 

malfunction for technology-driven 

regulations, such as the NSPS. SIPs, 

however, are designed for the purpose 

of attaining and maintaining the healthprotective NAAQS, and the Agency has 

consistently taken the position that 

broad exemptions from compliance with 

applicable emission limits during SSM 

are not appropriate because they cannot 

be adequately accounted for in plans to 

demonstrate attainment and 

maintenance of the NAAQS. In addition 

to the difficulties States would 

encounter in predicting how many 

sources may be exceeding underlying 

limits at any one time, for how long, and 

by how much, such provisions 

undermine incentives for sources to 

operate using sound practices. In order 

to address the limits of technology for 

standards included in plans to attain the 

health-based NAAQS, we have urged 

States to set alternative emission limits 

that apply during periods of startup and 

shutdown where compliance with the 

otherwise applicable emission limits is 

impossible; to use enforcement 

discretion; or to establish an affirmative 

defense that is limited to actions for 

penalties. As explained above, however, 

we do not believe that it is appropriate 

to establish an affirmative defense for 

excess emissions during planned 

maintenance activities because we 

believe that these activities can be 

anticipated and scheduled during 

planned outages. 

Comment: One comment suggests that 

providing affirmative defenses for 

startup, shutdown, and malfunction 

(SSM) could result in emissions 

contributing to ozone NAAQS 

exceedances. The same commenter also 

states that flaring and upsets could 

contribute to ozone nonattainment. 

Response: We agree with the 

comments that flaring and upset events 

could contribute to ozone NAAQS 

nonattainment. Excess emissions related 

to flaring events are unauthorized 

emissions and thus are considered a 

violation of the applicable emission 

limit. TCEQ’s ozone NAAQS control 

strategies including controls of flares are 

addressed in the substantive control 

requirement provisions of the SIPs as 

part of ozone attainment demonstration 

plans and were not specifically 

addressed as part of the emission event 

provisions in the 30 TAC Chapter 101 

rules of the Texas SIP, including the 

January 23, 2006 SIP submittal. The rule 

on which we are taking action here does 

not excuse or authorize flaring events 

due to startup, shutdown, malfunction 

or maintenance. To the extent a flaring 

event causes excess emissions during a 

period of unplanned startup, shutdown 

or maintenance, the rule would provide 

limited relief to the source in an action 

for penalties, assuming the source could 

prove certain factors had been met; 

however, it does not authorize or excuse 

those excess emissions. Thus, our 

approval of the affirmative defense in an 

action for penalties for excess emissions 

during unplanned startup, shutdown or 

maintenance will not interfere with 

attainment or maintenance of the ozone 

NAAQS. We note that to the extent a 

violation of the NAAQS is caused by a 

violation of an emission limit in a SIP, 

the most effective means to ensure 

limited harm to ambient air quality from 

the exceedance would be an action for 

injunctive relief. That remedy is 

unaffected by our approval of the 

affirmative defense, which is limited to 

actions for penalties. 

E. Comments Related to Technical 

Infeasibility and Disapproval Effects 

Comment: Several commenters 

expressed concern that it is not 

technically feasible to meet certain 

emission limitations (including opacity 

limits) at all times during planned 

maintenance, startup, or shutdown 

activities, and that the proposed partial 

disapproval could lead to less effective 

and less safe operation of environmental 

control equipment, including sources 

that use Electrostatic Precipitators 

(ESPs) and Selective Catalytic 

Reduction as emissions control devices. 

For example, several commenters noted 

that during maintenance of a boiler at a 

coal-fired power plant, fans must 

remain on and the ESPs will not be 

energized, leading to excess emissions. 

These commenters claim that EPA’s 

partial disapproval will force facilities 

to forgo preventative and proactive 

maintenance until permits can be issued 

for these activities. Other commenters 

note that EPA’s NSPS regulations at 40 

CFR 60.11(c) for coal-fired power plants 

provide exceptions for excess opacity 

emissions during planned startup, 

shutdown, and malfunction activities 

and that opacity limits in the Texas SIP 

were based on normal operations. 

Response: As noted earlier, since July 

1, 2006, no affirmative defense for 

excess emissions has been available in 

the federally-approved Texas SIP. Thus, 

our disapproval of the affirmative 

defense provision for periods of planned 

maintenance, startup, or shutdown 

activities will not change the status quo 

that has applied for over four years 

under the Texas SIP. We can understand 

that there may be excess opacity 

emissions in certain situations from 

operation of power generators equipped 

with ESPs. Under the current SIP these 


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excess opacity events would be 

violations, and yet power plants have 

been able to maintain and generate 

reliable power to their customers during 

this period. The commenters did not 

refute this. Thus, we do not believe our 

action to disapprove the affirmative 

defense for planned maintenance, 

startup, or shutdown activities where 

such defense has not been available 

since 2006, should jeopardize the safe 

and effective operation of the generators 

as several commenters claim. For this 

same reason, we also believe that our 

actions will not lead to facilities being 

forced to forego proactive maintenance 

when operated by trained and 

knowledgeable personnel. 

The NSPS regulation at 40 CFR 

60.11(c) does provide exceptions from 

compliance with underlying opacity 

limits during startup, shutdown and 

malfunction, but does not provide 

similar relief for periods of 

maintenance, as suggested by the 

commenter. As provided above, we have 

historically provided more leeway for 

compliance with technology-based 

standards than for health-based 

programs such as the NAAQS. Thus, the 

provisions adopted for purposes of the 

NSPS are not relevant to our action 

disapproving an affirmative defense for 

excess emissions during planned 

maintenance as part of a SIP. 

F. Comments Related to EPA Guidance 

and Policies and Disapproval Effects 

Comments: Some commenters state 

that the affirmative defense provisions 

in the January 23, 2006 SIP submittal 

are consistent with the EPA guidance 

documents referenced in the May 13, 

2010 proposal, and that EPA’s 

distinction between unplanned and 

planned startup or shutdown activity 

has no factual basis and is arbitrary and 

capricious. 

Response: We disagree. The January 

23, 2006 SIP submittal contains 

affirmative defense provisions for 

planned maintenance activities. As 

discussed previously, EPA’s 

interpretation of the Act is that it would 

be inappropriate to provide an 

affirmative defense to an action for 

penalties related to excess emissions 

occurring during planned maintenance 

and that EPA’s approval of such a 

defense into a SIP would be inconsistent 

with the CAA and EPA guidance. With 

respect to the comment concerning 

EPA’s distinction between planned and 

unplanned startup or shutdown 

activities, we note that unplanned 

startup or shutdown activity is 

specifically defined in the Texas rules 

as nonroutine, and unpredictable. As 

such it is functionally equivalent to a 

malfunction. Therefore the distinction 

between planned and unplanned startup 

and shutdown is not arbitrary. EPA 

would allow a State to create a limited 

affirmative defense for excess emissions 

occurring during planned and 

unplanned startup and shutdown 

activities. However, with respect to the 

planned startup or shutdown provisions 

of section 101.222(h), the crossreference of several criteria in section 

101.222(c) apply only to unplanned 

activities which results in the failure to 

include all the necessary criteria for 

planned startup or shutdown activities, 

as discussed more fully below. 

Comment: One commenter asserts 

that the affirmative defense provided in 

section 101.222(h) for excess emissions 

during planned maintenance, startup or 

shutdown activities should be approved 

because it incorporates by reference all 

the criteria set forth in section 

101.222(c). 

Response: As provided above, EPA 

cannot approve the submitted section 

101.222(h) because it provides for an 

affirmative defense for excess emissions 

during planned maintenance activities 

into the Texas SIP since we believe such 

approval would be inconsistent with the 

CAA and EPA guidance. Because the 

portions of section 101.222(h) that 

provide an affirmative defense for 

excess emissions during planned startup 

and shutdown are not severable from 

the provision for maintenance, those 

provisions must also be disapproved. 

While the commenter is correct that 

the submitted section 101.222(h) 

incorporates by reference the affirmative 

defense criteria set forth in the 

submitted section 101.222(c), such 

cross-referencing is problematic. Many 

of the criteria listed in submitted section 

101.222(c)—namely, (c)(2), (c)(3), (c)(4), 

(c)(6), and (c)(8)—specifically state that 

they apply to ‘‘emissions from an 

unplanned maintenance, startup, or 

shutdown activity (emphasis added).’’ 

As stated in footnote 5 above, a source 

claiming an affirmative defense in an 

action for excess emissions during a 

planned startup or shutdown activity 

could claim that the criteria listed in 

section 101.222(c)(2), (c)(3), (c)(4), (c)(6), 

and (c)(8) do not apply. In the absence 

of the appropriate criteria for planned 

startup or shutdown activities, EPA 

cannot approve the submitted section 

101.222(h) as part of the Texas SIP. 

Comment: As noted by another 

commenter the proposed disapproval of 

section 101.222(h) could be interpreted 

as EPA’s belief that it cannot approve 

any affirmative defense for excess 

emissions from planned startup or 

shutdown activities. 

Response: As noted above and in 

footnote 5, we interpret the CAA to 

allow EPA to approve a SIP revision 

submittal from a State that provides an 

affirmative defense for excess emissions 

during planned startup or shutdown 

activities, but the inclusion of planned 

maintenance activities and the failure to 

include appropriate criteria (due to 

improper cross-referencing) for planned 

startup and shutdown activities renders 

the submitted section 101.222(h) 

unapprovable. 

Comments: One commenter states that 

EPA’s May 13, 2010 notice provides no 

basis for the proposed disapproval of an 

affirmative defense for excess emissions 

during planned maintenance, where a 

source can demonstrate that such 

emissions could not be avoided. 

Response: We disagree. The May 13, 

2010 proposal to disapprove section 

101.222(h) specifically states that the 

source or operator should be able to 

plan maintenance that might otherwise 

lead to excess emissions to coincide 

with maintenance or production 

equipment or other facility shutdowns. 

EPA has determined that it is 

inappropriate to provide an affirmative 

defense for excess emissions resulting 

from planned maintenance activities. 

With respect to other planned activities, 

we noted that for those sources and 

source categories where compliance is 

not possible, the State should develop 

alternative, applicable emission limits 

for such events, which they can 

consider in SIPs demonstrating 

attainment and maintenance of the 

NAAQS, rather than establishing an 

affirmative defense for such emission 

events. See 75 FR 26896–7. 

Comment: Other commenters claim 

that disapproving an affirmative defense 

during the period of transition to 

permitting planned maintenance, 

startup, or shutdown activities would 

create new liabilities and encourage 

arbitrary enforcement. 

Response: We disagree. For the 

reasons provided above, EPA is 

disapproving sections 101.222(h), (i) 

and (j) because they are not consistent 

with the CAA, as interpreted by EPA 

through policy and guidance. For the 

reasons provided in the other responses, 

we do not believe that our action 

disapproving these three sections 

creates new liabilities. The existing SIP 

has not included an affirmative defense 

for excess emissions since June 30, 

2006. Under the approved SIP, all 

periods of excess emissions are 

violations and the submitted SIP 

revisions that we are approving do not 

delineate when and how the state, EPA 

or a citizen chooses which sources and 

events to enforce against. We disagree 


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that our disapproval of section 

101.222(h) will encourage arbitrary 

enforcement. Enforcement actions for 

excess emissions violations from 

planned maintenance, startup or 

shutdown activities will be subject to 

enforcement discretion. Enforcement 

discretion does not mean arbitrary 

enforcement. 

Comment: Another commenter claims 

that a conditional approval would be 

more appropriate to address EPA’s 

concerns with the January 23, 2006 SIP 

submittal. 

Response: To propose conditional 

approval of a provision of a SIP revision 

submittal, EPA would need a State’s 

written commitment to submit a SIP 

revision that corrects the deficiency no 

later than one year after a conditional 

approval and that justifies the timeframe 

needed to address the identified 

deficiencies in the SIP submittal; Texas 

did not provide a commitment that 

would have supported a proposed 

conditional approval. 

Comment: One commenter suggests 

that the requirements associated with 

scheduled maintenance under section 

101.211 are more stringent than EPA’s 

guidance on excess emissions because 

the Texas rule imposes additional 

requirements, such as the reporting of 

maintenance, startup, or shutdown 

activities that are expected to exceed a 

reportable quantity (RQ) in advance of 

the activities. 

Response: Since EPA’s position is that 

excess emissions during planned 

maintenance activities cannot be 

afforded an affirmative defense, it is not 

relevant whether the submitted 101.211 

may or may not be more stringent in 

terms of reporting requirements. 

G. Comments Related to Procedural 

Aspects of the Rulemaking 

Comments: One commenter questions 

EPA’s failure to justify its delay in 

responding to the January 23, 2006 SIP 

submittal and the limited amount of 

time to review the proposed disapproval 

in the May 13, 2010 notice. Another 

commenter asserts that EPA failed to 

comply with its policy for Regional 

Consistency Review for SIP revisions 

and also asserts that EPA’s disapproval 

is procedurally flawed because the May 

13, 2010 proposal was signed by the 

Deputy Regional Administrator and not 

the Regional Administrator. 

Response: Questions related to EPA’s 

delay in acting on the January 23, 2006 

SIP submittal were resolved by 

settlement agreement filed with the 

court in BCCA Appeal Group et al. v. 

EPA (Case No. 3–08CV1491–G, N.D. 

Tex.). Under the settlement agreement 

EPA agreed to take final action on the 

January 23, 2006 SIP submission by 

October 31, 2010. 

We disagree with the comments 

suggesting that the comment period was 

not sufficient. In the initial proposed 

rule, EPA provided a 30-day comment 

period on the proposed action. This is 

consistent with the time period that 

EPA typically provides for actions on 

SIPs. Furthermore, EPA extended the 

comment period for an additional 

14 days. 

We also disagree with the commenters 

that suggest that EPA did not comply 

with internal procedures with respect to 

review of the SIP. The proposed 

disapproval is consistent with EPA’s 

longstanding interpretation of the Act 

and does not deviate from EPA’s 

existing practices and policies. 

Therefore, there was no need to initiate 

a SIP consistency process for this action, 

and the commenter’s assertion for a 

need to initiate a SIP consistency 

process is misplaced. 

Finally, the May 13, 2010 (75 FR 

26892) proposal was signed by the 

Acting Regional Administrator, as 

provided by the Region 6 Order R6– 

1110.11, dated April 30, 2002. We have 

made this particular Order available for 

public inspection in the docket 

identified as EPA–R06–OAR–2006– 

0132. 

H. Comments Related to Interpretation 

of 30 TAC 101.221(d) 

Comments: One commenter asserts 

that the exemption provision of section 

101.221(d) of the January 23, 2006 SIP 

submittal should be interpreted to apply 

to the opacity requirements of 30 TAC 

section 111.111, while another 

commenter requests clarification that 

the exemption provision in section 

101.221(d) of the January 23, 2006 SIP 

submittal be interpreted to exclude 

federally approved SIP requirements. 

The commenter claims that TCEQ’s and 

EPA’s interpretation of that section is 

incorrect. 

Response: 30 TAC section 111.111 

entitled ‘‘Requirements for Specified 

Sources’’ was adopted by TACB on June 

18, 1993, and approved by EPA as a 

revision to the Texas SIP on May 8, 

1996 (61 FR 20734). At that time, it 

became federally enforceable. Therefore, 

the requirements in the SIP rule found 

at 30 TAC section 111.111 are ‘‘federal 

requirements.’’ Section 101.221(d) 

plainly states that TCEQ will not 

exempt sources from complying with 

any ‘‘federal requirements.’’ This 

position is also consistent with the 

April 17, 2007 letter from John Steib, 

Deputy Director, TCEQ Office of 

Compliance and Enforcement to EPA 

Region 6, in which the State confirmed 

that the term ‘‘federal requirements’’ in 

30 TAC 101.221(d) includes any 

requirement in the federally-approved 

SIP. In section D of our May 13, 2010 

proposal, we stated that new section 

101.221 (Operational Requirements) 

requires that no exemptions can be 

authorized by the TCEQ for any federal 

requirements to maintain air pollution 

control equipment, including 

requirements such as NSPS or National 

Emissions Standards for Hazardous Air 

Pollutants (NESHAP) or requirements 

approved into the SIP. Texas confirmed 

this interpretation and, therefore, the 

State may not exempt a source from 

complying with any requirement of the 

federally-approved SIP. Any action to 

modify a state-adopted requirement of 

the SIP would not modify the federallyenforceable obligation under the SIP 

unless and until it is approved by EPA 

as a SIP revision. Moreover, to the 

extent a State includes federallypromulgated requirements, such as 

NSPS or NESHAP into the SIP, the State 

does not have authority to modify such 

requirements. EPA’s long-standing 

position has been that States may not 

include in their SIPs provisions that 

allow a State Director or Board to 

modify the federally-applicable terms of 

the SIP without review and approval by 

EPA. This is because the emission 

reduction requirements in the SIP are 

relied on to attain and maintain the 

NAAQS, and exemptions or 

modifications to those requirements 

could undermine this fundamental 

purpose of the SIP. 

I. Comments Related to Potential 

Enforcement Actions 

Comments: Several commenters 

express a belief that EPA’s proposed 

disapproval of sections 101.222(h), (i), 

and (j) would expose sources to 

enforcement uncertainty and the risk of 

citizen suits, and also cause them to 

forego preventative maintenance. 

Response: EPA does not agree that 

disapproval of section 101.222(h), (i), 

and (j) would lead to the consequences 

asserted by the commenters. As 

previously noted, since July 1, 2006, the 

federally-approved Texas SIP has not 

included an affirmative defense for 

excess emissions occurring during 

unplanned and planned maintenance, 

startup, shutdown, or malfunction 

activities. Today’s action approves into 

the Texas SIP affirmative defense 

provisions for excess emissions related 

to unplanned maintenance, startup, and 

shutdown activities (which are 

considered malfunctions). A source 

asserting the affirmative defense in an 

action for penalties could be relieved 

from paying such penalties if it can 


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prove that certain enumerated criteria 

are met. Therefore, contrary to the 

commenters’ assertions, we do not 

believe that our action will increase the 

level of regulatory uncertainty for 

sources; rather, our action may create 

more regulatory certainty. We further 

note that because the affirmative 

defense would be raised in the context 

of an enforcement action, its existence 

is unlikely to affect whether an 

enforcement case is brought. As 

provided in more detail in a previous 

response, we also do not believe that 

this action will result in sources 

choosing to forego maintenance of an 

emissions unit. 

Comment: Several commenters assert 

that EPA’s approval of sections 

101.222(b), (c), (d), and (e) into the 

Texas SIP (providing an affirmative 

defense to upset events and opacity 

events) would impermissibly limit the 

penalty assessment criteria and citizen 

suit provisions in the Act. This approval 

could alter the meaning of the rule and 

make the ‘‘defense’’ applicable to 

citizens and EPA enforcement actions in 

district court. Citing Weyerhaeuser v. 

Costle, 590 F.2d 1011 (DC Cir 1978), the 

commenter asserts that EPA’s approval 

would limit injunctive relief available 

under the Act and delay ‘‘swift and 

direct’’ enforcement of excess emission 

violations. 

Response: We disagree. We believe 

that the affirmative defense criteria set 

forth in those sections are consistent 

with the Clean Air Act’s penalty 

assessment provision, 42 U.S.C. 7413(e), 

which allows some discretion in 

determining a penalty. Section 7413(e) 

of the Act provides that, ‘‘in determining 

the amount of any penalty to be 

assessed under this section, or section 

7604(a) of this title, the Administrator or 

the court, as appropriate, shall take into 

consideration (in addition to such other 

factors as justice may require) the size 

of the business, the economic impact of 

the penalty on the business, the 

violator’s full compliance history and 

good faith efforts to comply, the 

duration of the violation as established 

by any credible evidence * * *, 

payment by the violator of penalties 

previously assessed for the same 

violation, the economic benefit of 

noncompliance, and the seriousness of 

the violation.’’ (Emphasis added.) The 

use of the phrases emphasized above 

makes clear that the Administrator or 

the Court has broad discretion in the 

factors to consider in determining 

whether to assess a penalty, and if so, 

how much that penalty should be. The 

existence of an affirmative defense does 

not automatically preclude the 

assessment of civil penalties. The party 

raising the defense must prove that it is 

entitled to it, and if the affirmative 

defense is rejected by the court, a judge 

is still required to determine the 

appropriate penalties in a given case. 

Furthermore, approval of the provisions 

in sections 101.222(b), (c), (d), and (e) 

into the Texas SIP does not preclude 

citizen suits under the Act. Rather, the 

affirmative defense may be raised in 

defense of a claim brought by EPA, the 

State or a private citizen. As described 

above, the CAA contemplates that a 

source may raise a variety of factors in 

an attempt to mitigate or completely 

alleviate the assessment of a penalty. 

While approval of sections 101.222(b), 

(c), (d), and (e) into the Texas SIP would 

allow a source to assert affirmative 

defense for certain excess emissions, we 

do not believe that approval of those 

sections impermissibly limit the penalty 

assessment criteria set forth in CAA 

section 113(e). 

We agree with the commenter that the 

State rulemaking cannot affect the 

authorities provided by the CAA to EPA 

and citizens. However, on December 15, 

2005 TCEQ adopted revisions to 30 TAC 

Chapter 101, and submitted them to 

EPA as a revision to the Texas SIP. EPA 

has evaluated the January 23, 2006 SIP 

submittal and has determined that 

sections 101.222(b), (c), (d), and (e) of 

the submittal are consistent with the Act 

as interpreted by our policy and 

guidance documents. Our approval of 

sections 101.222(b), (c), (d), and (e) into 

the Texas SIP provides a source the 

option to assert an affirmative defense 

for certain periods of excess emissions 

in an enforcement action brought 

against it by EPA or a citizen in federal 

court. 

Moreover, even where an affirmative 

defense is successfully raised in defense 

to an action for penalties, it does not 

preclude other judicial relief that may 

be available, such as injunctive relief or 

a requirement to mitigate past harm or 

to correct the non-compliance at issue. 

The commenters are incorrect that the 

affirmative defense limits injunctive 

relief. The affirmative defense is only 

available in an action for penalties and 

would not be available to a claim 

requesting injunctive relief. Finally, 

EPA is cognizant of the Weyerhaeuser v. 

Costle, 590 F.2d 1011, 1057–58 (DC Cir. 

1978) decision, but EPA disagrees that 

approval of sections 101.222(b)–(e) into 

the Texas SIP would interfere with the 

legislative goal of ‘‘swift and direct’’ 

enforcement. We agree that the 

availability of civil penalties serves as 

an incentive for companies to be more 

cautious, to take more preventative 

actions, and to seek to develop 

technologies and management practices 

to avoid excess emissions. However, we 

also believe that the criteria a source 

would need to prove in order to 

successfully assert an affirmative 

defense will encourage companies to 

take such caution. For example, among 

the required criteria that the source 

must prove are that the periods of 

unauthorized emissions could not have 

been prevented through planning and 

design; were not part of a recurring 

pattern indicative of inadequate design, 

operation, or maintenance; and all 

emission monitoring system were kept 

in operation if possible. See 101.222(c). 

J. Comments Related to ‘‘Administrative 

Necessity’’ and ‘‘One-Step-at-a–Time’’ 

Doctrines 

Comments: Several commenters assert 

that EPA’s disapproval of sections 

101.222(h), (i), and (j) will result in a 

rushed transition of TCEQ’s scheduled 

phase-in approach for authorizing MSS 

activities and that EPA’s actions are 

inconsistent with the ‘‘administrative 

necessity’’ and ‘‘one-step-at-a-time’’ 

doctrines used by EPA in defending its 

recent greenhouse gas tailoring rule. 

Responses: We disagree. As an initial 

matter, and as we explain further above, 

the State’s submitted phased-in 

permitting process will not serve to 

modify any applicable requirement 

under the Texas SIP. Furthermore, our 

action disapproving the three provisions 

at issue, as discussed previously, merely 

maintains the status quo and should 

have no effect on that permitting 

process. Furthermore, we think this 

situation is distinct from that addressed 

in the greenhouse gas tailoring rule of 

June 30, 2010 (75 FR 31514) (Tailoring 

Rule). The Tailoring Rule concerns the 

applicability criteria that determine 

which stationary sources and 

modification projects become subject to 

permitting requirements for greenhouse 

gas (GHG) emissions under the 

Prevention of Significant Deterioration 

(PSD) and title V programs of the Act. 

EPA’s issuance of the Tailoring Rule, 

which regulates GHGs under the CAA as 

air pollutants, triggered a permitting 

obligation for GHG emissions as of 

January 2, 2011. In the absence of the 

Tailoring Rule, the permitting 

obligations would apply at the 100 or 

250 tons per year levels provided under 

the Act, greatly increasing the number 

of required permits, imposing undue 

costs on small sources, overwhelming 

the resources of permitting authorities, 

and severely impairing the functioning 

of the programs. In that action, EPA was 

taking action to relieve an imminent 

new burden that would have been 

imposed on sources and permitting 

authorities. 


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In contrast, our disapproval of certain 

provisions of the submitted plan does 

not change the status quo that has 

applied under the Texas SIP since July 

1, 2006. Our disapproval action does not 

establish any new, burdensome 

obligation for which relief is needed. 

Rather, sources have been obligated to 

comply at all times with the applicable 

emission limits with no enforcement 

discretion or affirmative defense 

provisions since the previous Texas 

rules expired from the Texas SIP on 

June 30, 2006 by their own terms. Thus 

there is no administrative necessity or 

‘‘one step at a time’’ argument applicable 

in this situation. 

K. Comments Related to Weakening of 

the SIP 

Comments: One commenter asserts 

that EPA’s approval of sections 

101.222(b)–(e) would weaken the Texas 

SIP by: Failing to require a ‘‘program to 

provide for the enforcement’’ of 

emission limitations and other control 

measures, citing CAA section 110(a)(2); 

changing the Reportable Quantity (RQ) 

for NOx that could interfere with 

attainment of the NAAQS; and allowing 

opacity as the only applicable RQ for 

certain boilers and combustion turbines 

in section 101.201(d), by adding the 

definitions for ‘‘boiler’’ and ‘‘combustion 

turbine.’’ 

Response: As explained earlier in this 

notice, EPA’s role in evaluating a 

proposed revision to a SIP is to make 

sure that it provides for attainment and 

maintenance of the NAAQS and that it 

otherwise complies with applicable 

requirements of the Act. Texas has 

chosen to establish an affirmative 

defense for certain type of excess 

emissions, provided certain criteria are 

met, as set forth in sections 101.222(b), 

(c), (d), and (e). For the reasons 

provided above, we believe that such an 

affirmative defense is consistent with 

the requirements of the Act, including 

the requirement under section 110 that 

States must have adequate enforcement 

programs. The affirmative defense 

provision only provides limited relief to 

sources in an action for penalties. 

Although sources may avoid a penalty 

for certain excess emissions where they 

can successfully prove all of the 

elements of the affirmative defense, the 

excess emissions are still considered 

violations and the administrative or 

judicial decision-maker in an 

enforcement action may weigh all of the 

factors to determine if other relief, such 

as injunctive relief, is appropriate. 

With respect to changes in the 

reporting requirements, the commenter 

expresses concern that the RQ for NOX

would be increased from 100 pounds in 

the current SIP to 200 pounds in ozone 

nonattainment, ozone maintenance, 

early action compact areas, Nueces 

County, and San Patricio County and to 

5,000 pounds in all other areas. An 

examination of section 101.1(89) 

(Reportable Quantity) reveals that there 

are many other substances, other than 

NOx, with an RQ of 5,000 pounds. 

Furthermore, it is important to 

remember that approving the raising of 

the reportable quantity for NOx into the 

Texas SIP does not change the fact that 

excess emissions below the reportable 

quantity are violations. All excess 

emissions must be recorded by the 

sources. Title V sources must report 

both reportable and recordable excess 

emissions as part of their annual 

deviation reports. Therefore, EPA does 

not believe that the change weakens the 

SIP; by adjusting the RQ, TCEQ is able 

to better manage its program by focusing 

on significant releases, and, as noted, 

the information for non-reportable 

quantities will otherwise be available. 

The commenter notes that for certain 

boilers and combustion turbines opacity 

is the only applicable RQ and asserts 

that this change constitutes a weakening 

of the SIP. However, the language in the 

submitted 30 TAC subsection 

101.201(d) [which provides a limited 

reporting exemption for certain boilers 

or combustion turbines equipped with 

Continuous Emission Monitoring 

Systems (CEMS) capable of sampling, 

analyzing, and recording data for each 

successive 15-minute interval] was 

previously approved by EPA as a 

revision to the Texas SIP on March 30, 

2005. See 70 FR 16129. See section 

101.201(d). The SIP-approved rule 

contained the same RQ reporting 

provision for opacity. Section 101.201 

did not have an expiration date and it 

has been federally enforceable since 

April 29, 2005. In summary, the SIP 

only has required a RQ reporting 

provision for opacity; there is no change 

to this reporting provision. The only 

change that EPA is approving into the 

SIP affecting the existing SIP rule 

101.201(d) is two new definitions in 

section 101.1 for ‘‘boiler’’ and 

‘‘combustion turbine.’’ These definitions, 

however, were taken verbatim from the 

30 TAC Chapter 117 rules. See 73 FR 

73562 (December 3, 2008). Therefore, 

the addition of these two definitions is 

non-substantive for the SIP’s purposes. 

The commenter’s assertion that the 

Texas SIP has been weakened is 

incorrect. As such, there is no 

substantive change to the existing SIP 

and there is no weakening of the SIP. 

L. Comments Related to Clarification 

Requests 

Comments: One commenter requests 

that EPA clarify that excess emission 

reports must be submitted with the 

source’s title V monitoring and 

deviation reports. 

Response: The January 23, 2006 SIP 

submittal concerns the SIP not the title 

V (operating permit) program, which is 

not a component of the SIP. The title V 

program is a separate program from the 

SIP. However, title V permits issued by 

Texas are required to contain all 

applicable SIP requirements. Under the 

approved Texas SIP, all excess 

emissions are violations, whether or not 

they meet the criteria for an affirmative 

defense. Therefore, a source subject to 

the title V program requirements is 

required as part of the title V permit 

program to report all excess emissions, 

both reportable and nonreportable, as 

deviations. 

Comment: One commenter noted that 

section 101.222 does not require 

permitting of emissions from MSS 

activities. 

Response: The submitted Section 

101.222(h) provides the opportunity for 

a source to file an application with the 

State for a NSR SIP permit to impose 

emission limitations on excess 

emissions (including opacity) during 

periods of planned maintenance, 

startup, or shutdown. As noted 

previously, the State cannot issue a NSR 

SIP permit that does not meet all the 

requirements of the Texas SIP. If the 

State wishes to issue a NSR permit that 

varies from the Texas SIP requirements, 

then it must submit the permit to EPA 

for approval as a source-specific SIP 

revision. The submitted provision 

establishes an overall 7-year time period 

for sources to file such applications, 

allotting a specified, shorter timeframe 

within that period for different 

categories of sources to submit such 

applications. Submitted section 

101.222(i) concerns the processing of 

such applications. The provision in 

submitted section 101.222(h), which 

provides for an affirmative defense to 

excess emissions during planned 

maintenance, startup, or shutdown 

activities, no longer applies for a 

specific source under the State rules 

once the period for filing and processing 

such an application expires for the 

source category. We agree with the 

State’s interpretation of its rule that 

sources are not required to submit such 

applications. If sources choose not to 

seek a permit based on the prescribed 

timeline, then those sources’ excess 

emissions occurring during these 

planned MSS activities would be 


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considered violations, for which an 

affirmative defense would not be 

available under the State rules. 

Comment: One commenter wishes to 

point out that the provision of the 

Michigan SIP that EPA disapproved 

contained an automatic malfunction 

exemption and is not pertinent to this 

proceeding. 

Response: The provision of the 

Michigan SIP that EPA disapproved and 

that was at issue in Michigan 

Department of Environmental Quality v. 

Browner, 230 F.3d 181 (6th Cir. 2000) 

mainly concerned an automatic 

exemption. Our listing of that case in 

section B of May 13, 2010 proposal was 

for informational purposes. 

VI. Final Action 

Today, we are finalizing our May 13, 

2010 (75 FR 26892) proposal to approve 

into the Texas SIP the following 

provisions of 30 TAC General Air 

Quality Rule 101 as submitted on 

January 23, 2006: 

Subchapter A 

Revised section 101.1 (Definitions); 

and 

Subchapter F 

Revised Section 101.201 (Emissions 

Event Reporting and Recordkeeping 

Requirements), but for 30 TAC 

101.201(h) which is no longer before 

EPA for action, 

Revised Section 101.211 (Scheduled 

Maintenance, Startup, and Shutdown 

Reporting and Recordkeeping 

Requirements), but for 30 TAC 

101.211(f) which is no longer before 

EPA for action, 

New Section 101.221 (Operational 

Requirements), 

New Section 101.222 

(Demonstrations), except 101.222(h), 

101.222(i), and 101.222(j)), 

New Section 101.223 (Actions to 

Reduce Excessive Emissions). 

We are finalizing our May 13, 2010 

(75 FR 26892) proposal to disapprove 

sections 101.222(h) (Planned 

Maintenance, Startup, or Shutdown 

Activity), 101.222(i) (concerning 

effective date of permit applications), 

and 101.222(j) (concerning processing of 

permit applications) into the Texas SIP. 

VII. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. If a portion of the 

plan revision meets all the applicable 

requirements of this chapter and Federal 

regulations, the Administrator may 

approve the plan revision in part. 42 

U.S.C. 7410(k); 40 CFR 52.02(a). If a 

portion of the plan revision does not 

meet all the applicable requirements of 

this chapter and Federal regulations, the 

Administrator may then disapprove 

portions of the plan revision in part that 

does not meet 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 that meet 

the criteria of the Act, and to disapprove 

state choices that do not meet the 

criteria of the Act. Accordingly, this 

final action, in part, approves state law 

as meeting Federal requirements and, in 

part, disapproves state law as not 

meeting Federal requirements; and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this final 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); 

• 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 Clean Air Act; 

• 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); 

• Does not have tribal implications as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because 

the SIP is not approved to apply in 

Indian country located in the state, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law; and 

• Is not a ‘‘major rule’’ as defined by 

5 U.S.C. 804(2) under the Congressional 

Review Act, 5 U.S.C. 801 et seq., added 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996. A 

major rule cannot take effect until 60 

days after it is published in the Federal 

Register. This action is not a ‘‘major 

rule.’’ 

Under section 307(b)(1) of the Clean Air 

Act, petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by January 10, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2) of the Act.) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: October 29, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. In § 52.2270 the entry for Chapter 

101 in the table in paragraph (c) is 

amended by: 

■ a. Revising the entry for Section 101.1 

under Subchapter A. 

■ b. Revising the entry for Section 

101.201 under Subchapter F Division 1. 

■ c. Revising the entry for Section 

101.211 under Subchapter F Division 2. 

■ d. Revising the entries for Section 

101.221, 101.222, and 101.223 under 

Subchapter F Division 3. 

The revisions read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 


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69002 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject State approval/ 

submittal date EPA approval date Explanation 

* * * * * * * 

Chapter 101—General Air Quality Rules 

Subchapter A—General Rules 

Section 101.1 .... Definitions .................................... 01/23/06 11/10/10 [Insert FR page number 

where document begins].

* * * * * * * 

Subchapter F—Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities 

Division 1—Emissions Events 

Section 101.201 Emissions Event Reporting and 

Recordkeeping Requirements.

01/23/06 11/10/10 [Insert FR page number 

where document begins].

101.201(h) is not in the SIP. 

Division 2—Maintenance, Startup, and Shutdown Activities 

Section 101.211 Scheduled Maintenance, Startup, 

and Shutdown Reporting and 

Recordkeeping Requirements.

01/23/06 11/10/10 [Insert FR page number 

where document begins].

101.211(f) is not in the SIP. 

Division 3—Operational Requirements, Demonstrations, and Actions To Reduce Excessive Emissions 

Section 101.221 Operational Requirements .......... 01/23/06 11/10/10 [Insert FR page number 

where document begins].

Section 101.222 Demonstrations ........................... 01/23/06 11/10/10 [Insert FR page number 

where document begins].

The SIP does not include 

101.222(h), 101.222 (i), and 

101.222 (j). See section 

52.2273(e). 

Section 101.223 Actions to Reduce Excessive 

Emissions.

01/23/06 11/10/10 [Insert FR page number 

where document begins].

* * * * * * * 

* * * * * 

■ 3. Section 52.2273 is amended by 

adding a new paragraph (e) to read as 

follows: 

§ 52.2273 Approval status. 

* * * * * 

(e) EPA is disapproving the Texas SIP 

revision submittals under 30 TAC 

Chapter 101—General Air Quality Rules 

as follows: 

(1) Subchapter F—Emissions Events 

and Scheduled Maintenance, Startup, 

and Shutdown Activities, Division 1— 

Section 101.222 (Demonstrations): 

Sections 101.222(h), 101.222(i), and 

101.222(j), adopted December 14, 2005, 

and submitted January 23, 2006. 

[FR Doc. 2010–28135 Filed 11–9–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2008–0740; FRL–9221–6] 

Revisions to the California State 

Implementation Plan, Imperial County 

Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

revisions to the Imperial County Air 

Pollution Control District (ICAPCD) 

portion of the California State 

Implementation Plan (SIP). These 

revisions were proposed in the Federal 

Register on May 19, 2010 and concern 

particulate matter (PM) emissions from 

beef feedlots. We are approving a local 

rule that regulates these emission 

sources under the Clean Air Act as 

amended in 1990 (CAA or the Act). 

DATES: Effective Date: This rule is 

effective on December 10, 2010. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2008–0740 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. 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 in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Steckel, EPA Region IX, (415) 

947–4115, steckel.andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 


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