Vol. 80 Friday, 

No. 113 June 12, 2015 

Part IV 

Environmental Protection Agency 

40 CFR Part 52 

State Implementation Plans: Response to Petition for Rulemaking; 

Restatement and Update of EPA’s SSM Policy Applicable to SIPs; 

Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions 

Applying to Excess Emissions During Periods of Startup, Shutdown and 

Malfunction; Final Rule 

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33840 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2012–0322; FRL–9924–05– 

OAR] 

RIN 2060–AR68 

State Implementation Plans: Response 

to Petition for Rulemaking; 

Restatement and Update of EPA’s SSM 

Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls 

To Amend Provisions Applying to 

Excess Emissions During Periods of 

Startup, Shutdown and Malfunction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final action. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action on 

a petition for rulemaking filed by the 

Sierra Club (Petitioner) that concerns 

how provisions in EPA-approved state 

implementation plans (SIPs) treat excess 

emissions during periods of startup, 

shutdown or malfunction (SSM). 

Further, the EPA is clarifying, restating 

and revising its guidance concerning its 

interpretation of the Clean Air Act (CAA 

or Act) requirements with respect to 

treatment in SIPs of excess emissions 

that occur during periods of SSM. The 

EPA evaluated existing SIP provisions 

in a number of states for consistency 

with the EPA’s interpretation of the 

CAA and in light of recent court 

decisions addressing this issue. The 

EPA is issuing a finding that certain SIP 

provisions in 36 states (applicable in 45 

statewide and local jurisdictions) are 

substantially inadequate to meet CAA 

requirements and thus is issuing a ‘‘SIP 

call’’ for each of those 36 states. Further, 

the EPA is establishing a due date for 

states subject to this SIP call action to 

submit corrective SIP revisions. Finally, 

this final action embodies the EPA’s 

updated SSM Policy as it applies to SIP 

provisions. The SSM Policy provides 

guidance to states for compliance with 

CAA requirements for SIP provisions 

applicable to excess emissions during 

SSM events. 

DATES: This final action shall become 

applicable on May 22, 2015. The 

deadline for each affected state to 

submit its corrective SIP revision is 

November 22, 2016. 

ADDRESSES: The EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2012–0322. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

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, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at http://

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, EPA Docket Center, William 

Jefferson Clinton West Building, Room 

3334, 1301 Constitution Ave. NW., 

Washington, DC The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Office of Air and Radiation Docket 

is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lisa Sutton, U.S. EPA, Office of Air 

Quality Planning and Standards, State 

and Local Programs Group (C539–01), 

Research Triangle Park, NC 27711, 

telephone number (919) 541–3450, 

email address: sutton.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

information related to a specific SIP, 

please contact the appropriate EPA 

Regional Office: 

EPA Regional 

Office 

Contact for Regional Office 

(person, mailing address, telephone number) State 

I .......................... Alison Simcox, Environmental Scientist, EPA Region 1, 5 

Post Office Square, Suite 100, Boston, MA 02109–3912, 

(617) 918–1684.

Connecticut, Massachusetts, Maine, New Hampshire, Rhode 

Island and Vermont. 

II ......................... Karl Mangels, Chief, Air Planning Section, EPA Region 2, 

290 Broadway, 25th Floor, New York, NY 10007–1866, 

(212) 637–4078.

New Jersey, New York, Puerto Rico and Virgin Islands. 

III ........................ Amy Johansen, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103–2029, (215) 814–2156.District of Columbia, Delaware, Maryland, Pennsylvania, Virginia and West Virginia. 

IV ........................ Joel Huey, EPA Region 4, Atlanta Federal Center, 61 

Forsyth Street SW., Atlanta, GA 30303–8960, (404) 562– 

9104.

Alabama, Florida, Georgia, Kentucky, Mississippi, North 

Carolina, South Carolina and Tennessee. 

V ......................... Mary Portanova, Air and Radiation Division (AR–18J), EPA 

Region 5, 77 West Jackson Boulevard, Chicago, IL 

60604–3507, (312) 353–5954.

Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. 

VI ........................ Alan Shar (6PD–L), EPA Region 6, Fountain Place 12th 

Floor, Suite 1200, 1445 Ross Avenue, Dallas, TX 75202– 

2733, (214) 665–6691.

Arkansas, Louisiana, New Mexico, Oklahoma and Texas. 

VII ....................... Lachala Kemp, EPA Region 7, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, KS 

66219–9601, (913) 551–7214. Alternate contact is Ward 

Burns, (913) 551–7960.

Iowa, Kansas, Missouri and Nebraska. 

VIII ...................... Adam Clark, Air Quality Planning Unit (8P–AR) Air Program, 

EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202– 

1129, (303) 312–7104.

Colorado, Montana, North Dakota, South Dakota, Utah and 

Wyoming. 

IX ........................ Andrew Steckel, EPA Region 9, Air Division, 75 Hawthorne 

Street (AIR–4), San Francisco, CA 94105–3901, (415) 

947–4115.

Arizona, California, Hawaii, Nevada and the Pacific Islands. 

X ......................... Dave Bray, Office of Air, Waste and Toxics (AWT–150), EPA 

Region 10, 1200 Sixth Avenue, Suite 900, Seattle, WA 

98101–3140, (206) 553–4253.

Alaska, Idaho, Oregon, and Washington. 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33841 

1The EPA respects the unique relationship 

between the U.S. government and tribal authorities 

and acknowledges that tribal concerns are not 

interchangeable with state concerns. Under the 

CAA and EPA regulations, a tribe may, but is not 

required to, apply for eligibility to have a tribal 

implementation plan (TIP). For convenience, the 

EPA refers to ‘‘air agencies’’ in this rulemaking 

collectively when meaning to refer in general to 

states, the District of Columbia, U.S. territories, 

local air permitting authorities and eligible tribes 

that are currently administering, or may in the 

future administer, EPA-approved implementation 

plans. This final action does not include action on 

any provisions in any TIP. The EPA therefore refers 

to ‘‘state’’ or ‘‘states’’ rather than ‘‘air agency’’ or 

‘‘air agencies’’ when meaning to refer to the District 

of Columbia and/or one, some, or all of the states 

at issue in this rulemaking. The EPA also uses 

‘‘state’’ or ‘‘states’’ rather than ‘‘air agency’’ or ‘‘air 

agencies’’ when quoting or paraphrasing the CAA 

or other document that uses that term even when 

the original referenced passage may have 

applicability to tribes as well. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

action include states, U.S. territories, 

local authorities and eligible tribes that 

are currently administering, or may in 

the future administer, EPA-approved 

implementation plans (‘‘air agencies’’).1

The EPA’s action on the petition for 

rulemaking filed by the Sierra Club with 

the EPA Administrator on June 30, 2011 

(the Petition), is potentially of interest to 

all such entities because the EPA is 

addressing issues related to basic CAA 

requirements for SIPs. The particular 

issues addressed in this rulemaking are 

the same issues that the Petition 

identified, which relate specifically to 

section 110 of the CAA. Pursuant to 

section 110, through what is generally 

referred to as the ‘‘SIP program,’’ the 

states and the EPA together provide for 

implementation, maintenance and 

enforcement of the national ambient air 

quality standards (NAAQS). While 

recognizing similarity to (and in some 

instances overlap with) issues 

concerning other air programs, e.g., 

concerning SSM provisions in the EPA’s 

regulatory programs for New Source 

Performance Standards (NSPS) pursuant 

to section 111 and National Emission 

Standards for Hazardous Air Pollutants 

(NESHAP) pursuant to section 112, the 

EPA notes that the issues addressed in 

this rulemaking are specific to SSM 

provisions in the SIP program. Through 

this rulemaking, the EPA is both 

clarifying and applying its 

interpretation of the CAA with respect 

to SIP provisions applicable to excess 

emissions during SSM events in general. 

In addition, the EPA is issuing findings 

that some of the specific SIP provisions 

in some of the states identified in the 

Petition and some SIP provisions in 

additional states are substantially 

inadequate to meet CAA requirements, 

pursuant to CAA section 110(k)(5), and 

thus those states (named in section II.C 

of this document) are directly affected 

by this rulemaking. For example, where 

a state’s existing SIP includes an 

affirmative defense provision that 

would purport to alter the jurisdiction 

of the federal courts to assess monetary 

penalties for violations of CAA 

requirements, then the EPA is 

determining that the SIP provision is 

substantially inadequate because the 

provision is inconsistent with 

fundamental requirements of the CAA. 

This action may also be of interest to the 

public and to owners and operators of 

industrial facilities that are subject to 

emission limitations in SIPs, because it 

will require changes to certain state 

rules applicable to excess emissions 

during SSM events. This action 

embodies the EPA’s updated SSM 

Policy concerning CAA requirements for 

SIP provisions relevant to excess 

emissions during SSM events. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this 

document will also be available on the 

World Wide Web. Following signature 

by the EPA Administrator, a copy of this 

document will be posted on the EPA’s 

Web site, under ‘‘State Implementation 

Plans to Address Emissions During 

Startup, Shutdown and Malfunction,’’ at 

http://www.epa.gov/air/urbanair/

sipstatus. The EPA’s initial proposed 

response to the Petition in the February 

2013 proposal, the EPA’s revised 

proposed response to the Petition in the 

September 2014 supplemental notice of 

proposed rulemaking (SNPR) and the 

EPA’s Response to Comments document 

may be found in the docket for this 

action. 

C. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. How is the preamble organized? 

D. What is the meaning of key terms used 

in this document? 

II. Overview of Final Action and Its 

Consequences 

A. Summary 

B. What the Petitioner Requested 

C. To which air agencies does this 

rulemaking apply and why? 

D. What are the next steps for states that 

are receiving a finding of substantial 

inadequacy and a SIP call? 

E. What are potential impacts on affected 

states and sources? 

F. What happens if an affected state fails 

to meet the SIP submission deadline? 

G. What is the status of SIP provisions 

affected by this SIP call action in the 

interim period starting when the EPA 

promulgates the final SIP call and ending 

when the EPA approves the required SIP 

revision? 

III. Statutory, Regulatory and Policy 

Background 

IV. Final Action in Response to Request To 

Rescind the EPA Policy Interpreting the 

CAA To Allow Affirmative Defense 

Provisions 

A. What the Petitioner Requested 

B. What the EPA Proposed 

C. What Is Being Finalized in This Action 

D. Response to Comments Concerning 

Affirmative Defense Provisions in SIPs 

V. Generally Applicable Aspects of the Final 

Action in Response to Request for the 

EPA’s Review of Specific Existing SIP 

Provisions for Consistency With CAA 

Requirements 

A. What the Petitioner Requested 

B. What the EPA Proposed 

C. What Is Being Finalized in This Action 

D. Response to Comments Concerning the 

CAA Requirements for SIP Provisions 

Applicable to SSM Events 

VI. Final Action in Response to Request That 

the EPA Limit SIP Approval to the Text 

of State Regulations and Not Rely Upon 

Additional Interpretive Letters From the 

State 

A. What the Petitioner Requested 

B. What the EPA Proposed 

C. What Is Being Finalized In This Action 

D. Response to Comments Concerning 

Reliance on Interpretive Letters in SIP 

Revisions 

VII. Clarifications, Reiterations and Revisions 

to the EPA’s SSM Policy 

A. Applicability of Emission Limitations 

During Periods of SSM 

1. What the EPA Proposed 

2. What Is Being Finalized in This Action 

3. Response to Comments 

B. Alternative Emission Limitations During 

Periods of Startup and Shutdown 

1. What the EPA Proposed 

2. What Is Being Finalized in This Action 

3. Response to Comments 

C. Director’s Discretion Provisions 

Pertaining to SSM Events 

1. What the EPA Proposed 

2. What Is Being Finalized in This Action 

3. Response to Comments 

D. Enforcement Discretion Provisions 

Pertaining to SSM Events 

1. What the EPA Proposed 

2. What Is Being Finalized in This Action 

3. Response to Comments 

E. Affirmative Defense Provisions in SIPs 

During Any Period of Operation 

F. Relationship Between SIP Provisions 

and Title V Regulations 

G. Intended Effect of the EPA’s Action on 

the Petition 

VIII. Legal Authority, Process and Timing for 

SIP Calls 

A. SIP Call Authority Under Section 

110(k)(5) 

1. General Statutory Authority 

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33842 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

2. Substantial Inadequacy of Automatic 

Exemptions 

3. Substantial Inadequacy of Director’s 

Discretion Exemptions 

4. Substantial Inadequacy of Improper 

Enforcement Discretion Provisions 

5. Substantial Inadequacy of Affirmative 

Defense Provisions 

B. SIP Call Process Under Section 110(k)(5) 

C. SIP Call Timing Under Section 110(k)(5) 

D. Response to Comments Concerning SIP 

Call Authority, Process and Timing 

IX. What is the EPA’s final action for each 

of the specific SIP provisions identified 

in the Petition or by the EPA? 

A. Overview of the EPA’s Evaluation of 

Specific SIP Provisions 

B. Affected States in EPA Region I 

C. Affected State in EPA Region II 

D. Affected States in EPA Region III 

E. Affected States and Local Jurisdictions 

in EPA Region IV 

F. Affected States in EPA Region V 

G. Affected States in EPA Region VI 

H. Affected States in EPA Region VII 

I. Affected States in EPA Region VIII 

J. Affected States and Local Jurisdictions in 

EPA Region IX 

K. Affected States in EPA Region X 

X. Implementation Aspects of EPA’s SSM SIP 

Policy 

A. Recommendations Concerning 

Alternative Emission Limitations for 

Startup and Shutdown 

B. Recommendations for Compliance With 

Section 110(l) and Section 193 for SIP 

Revisions 

XI. Statement of the EPA’s SSM SIP Policy 

as of 2015 

A. Definitions 

B. Emission Limitations in SIPs Must 

Apply Continuously During All Modes 

of Operation, Without Automatic or 

Discretionary Exemptions or Overly 

Broad Enforcement Discretion Provisions 

That Would Bar Enforcement by the EPA 

or by Other Parties in Federal Court 

Through a Citizen Suit 

C. Emission Limitations in SIPs May 

Contain Components Applicable to 

Different Modes of Operation That Take 

Different Forms, and Numerical 

Emission Limitations May Have Differing 

Levels and Forms for Different Modes of 

Operation 

D. Recommendations for Development of 

Alternative Emission Limitations 

Applicable During Startup and 

Shutdown 

E. Enforcement Discretion Provisions 

F. Affirmative Defense Provisions in SIPs 

G. Anti-Backsliding Considerations 

XII. Environmental Justice Consideration 

XIII. References 

XIV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

L. Congressional Review Act (CRA) 

XV. Judicial Review 

XVI. Statutory Authority 

D. What is the meaning of key terms 

used in this document? 

For the purpose of this document, the 

following definitions apply unless the 

context indicates otherwise: 

The terms Act or CAA or the statute mean 

or refer to the Clean Air Act. 

The term affirmative defense means, in the 

context of an enforcement proceeding, a 

response or defense put forward by a 

defendant, regarding which the defendant 

has the burden of proof, and the merits of 

which are independently and objectively 

evaluated in a judicial or administrative 

proceeding. The term affirmative defense 

provision means more specifically a state law 

provision in a SIP that specifies particular 

criteria or preconditions that, if met, would 

purport to preclude a court from imposing 

monetary penalties or other forms of relief for 

violations of SIP requirements in accordance 

with CAA section 113 or CAA section 304. 

The term Agency means or refers to the 

EPA. When not capitalized, this term refers 

to an agency in general and not specifically 

to the EPA. 

The terms air agency and air agencies 

mean or refer to states, the District of 

Columbia, U.S. territories, local air 

permitting authorities with delegated 

authority from the state and tribal authorities 

with appropriate CAA jurisdiction. 

The term alternative emission limitation 

means, in this document, an emission 

limitation in a SIP that applies to a source 

during some but not all periods of normal 

operation (e.g., applies only during a 

specifically defined mode of operation such 

as startup or shutdown). An alternative 

emission limitation is a component of a 

continuously applicable SIP emission 

limitation, and it may take the form of a 

control measure such as a design, equipment, 

work practice or operational standard 

(whether or not numerical). This definition of 

the term is independent of the statutory use 

of the term ‘‘alternative means of emission 

limitation’’ in sections 111(h)(3) and 

112(h)(3), which pertain to the conditions 

under which the EPA may pursuant to 

sections 111 and 112 promulgate emission 

limitations, or components of emission 

limitations, that are not necessarily in 

numeric format. 

The term automatic exemption means a 

generally applicable provision in a SIP that 

would provide that if certain conditions 

existed during a period of excess emissions, 

then those exceedances would not be 

considered violations of the applicable 

emission limitations. 

The term director’s discretion provision 

means, in general, a regulatory provision that 

authorizes a state regulatory official 

unilaterally to grant exemptions or variances 

from otherwise applicable emission 

limitations or control measures, or to excuse 

noncompliance with otherwise applicable 

emission limitations or control measures, 

which would be binding on the EPA and the 

public. 

The term EPA refers to the United States 

Environmental Protection Agency. 

The term emission limitation means, in the 

context of a SIP, a legally binding restriction 

on emissions from a source or source 

category, such as a numerical emission 

limitation, a numerical emission limitation 

with higher or lower levels applicable during 

specific modes of source operation, a specific 

technological control measure requirement, a 

work practice standard, or a combination of 

these things as components of a 

comprehensive and continuous emission 

limitation in a SIP provision. In this respect, 

the term emission limitation is defined as in 

section 302(k) of the CAA. By definition, an 

emission limitation can take various forms or 

a combination of forms, but in order to be 

permissible in a SIP it must be applicable to 

the source continuously, i.e., cannot include 

periods during which emissions from the 

source are legally or functionally exempt 

from regulation. Regardless of its form, a 

fully approvable SIP emission limitation 

must also meet all substantive requirements 

of the CAA applicable to such a SIP 

provision, e.g., the statutory requirement of 

section 172(c)(1) for imposition of reasonably 

available control measures and reasonably 

available control technology (RACM and 

RACT) on sources located in designated 

nonattainment areas. 

The term excess emissions means the 

emissions of air pollutants from a source that 

exceed any applicable SIP emission 

limitation. In particular, this term includes 

those emissions above the otherwise 

applicable SIP emission limitation that occur 

during startup, shutdown, malfunction or 

other modes of source operation, i.e., 

emissions that would be considered 

violations of the applicable emission 

limitation but for an impermissible automatic 

or discretionary exemption from such 

emission limitation. 

The term February 2013 proposal means 

the notice of proposed rulemaking that the 

EPA signed on February 12, 2013, and 

published in the Federal Register on 

February 22, 2013. The February 2013 

proposal comprises the EPA’s initial 

proposed response to the Petition. The EPA 

subsequently issued the September 2014 

SNPR that updated and revised the EPA’s 

February 2013 proposal with respect to 

affirmative defense provisions in SIPs. 

The term malfunction means a sudden and 

unavoidable breakdown of process or control 

equipment. 

The term NAAQS means national ambient 

air quality standard or standards. These are 

the national primary and secondary ambient 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33843 

2Since at least 1982, however, the EPA has used 

the term ‘‘normal’’ in the SSM Policy in the 

ordinary sense of the word to distinguish between 

predictable modes of source operation such as 

startup and shutdown and genuine ‘‘malfunctions,’’ 

which are by definition supposed to be 

unpredictable and unforeseen events and which 

could not have been precluded by proper source 

design, maintenance and operation. See, e.g., 1982 

SSM Guidance, Attachment at 2, in which the EPA 

states, ‘‘[s]tart-up and shutdown of process 

equipment are part of the normal operation of a 

source and should be accounted for in the design 

and implementation of the operating procedure for 

the process and control equipment.’’ The 1982 SSM 

Guidance is in the rulemaking docket at EPA–HQ– 

OAR–2012–0322–0005. 

3 In 1977, the EPA took actions related to specific 

sources located in Utah and Idaho in which the 

EPA expressed its views regarding issues such as 

automatic exemptions from applicable emission 

limitations. See Memorandum, ‘‘Statutory, 

Regulatory, and Policy Context for this 

Rulemaking,’’ at n.2, February 4, 2013, in the 

rulemaking docket at EPA–HQ–OAR–2012–0322– 

0029. 

4The term ‘‘impermissible provision’’ as used 

throughout this document is generally intended to 

refer to a SIP provision that the EPA now believes 

to be inconsistent with requirements of the CAA. 

As described later in this document (see section 

VIII.A), the EPA is proposing to find a SIP 

‘‘substantially inadequate’’ to meet CAA 

requirements where the EPA determines that the 

SIP includes an impermissible provision. 

air quality standards that the EPA establishes 

under CAA section 109 for criteria pollutants 

for purposes of protecting public health and 

welfare. 

The term Petition refers to the petition for 

rulemaking titled, ‘‘Petition to Find 

Inadequate and Correct Several State 

Implementation Plans under Section 110 of 

the Clean Air Act Due to Startup, Shutdown, 

Malfunction, and/or Maintenance 

Provisions,’’ filed by the Sierra Club with the 

EPA Administrator on June 30, 2011. 

The term Petitioner refers to the Sierra 

Club. 

The term practically enforceable means, in 

the context of a SIP emission limitation, that 

the limitation is enforceable as a practical 

matter (e.g., contains appropriate averaging 

times, compliance verification procedures 

and recordkeeping requirements). The term 

uses ‘‘practically’’ as it means ‘‘in a practical 

manner’’ and not as it means ‘‘almost’’ or 

‘‘nearly.’’ In this document, the EPA uses the 

term ‘‘practically enforceable’’ as 

interchangeable with the term ‘‘practicably 

enforceable.’’ 

The term shutdown means, generally, the 

cessation of operation of a source for any 

reason. In this document, the EPA uses this 

term in the generic sense. In individual SIP 

provisions it may be appropriate to include 

a specifically tailored definition of this term 

to address a particular source category for a 

particular purpose. 

The term SIP means or refers to a State 

Implementation Plan. Generally, the SIP is 

the collection of state statutes and regulations 

approved by the EPA pursuant to CAA 

section 110 that together provide for 

implementation, maintenance and 

enforcement of a national ambient air quality 

standard (or any revision thereof) 

promulgated under section 109 for any air 

pollutant in each air quality control region 

(or portion thereof) within a state. In some 

parts of this document, statements about SIPs 

in general would also apply to tribal 

implementation plans in general even though 

not explicitly noted. 

The term SNPR means the supplemental 

notice of proposed rulemaking that the EPA 

signed and posted on the Agency Web site on 

September 5, 2014, and published in the 

Federal Register on September 17, 2014. 

Supplementing the February 2013 proposal, 

the SNPR comprises the EPA’s revised 

proposed response to the Petition with 

respect to affirmative defense provisions in 

SIPs. 

The term SSM refers to startup, shutdown 

or malfunction at a source. It does not 

include periods of maintenance at such a 

source. An SSM event is a period of startup, 

shutdown or malfunction during which there 

may be exceedances of the applicable 

emission limitations and thus excess 

emissions. 

The term SSM Policy refers to the 

cumulative guidance that the EPA has issued 

as of any given date concerning its 

interpretation of CAA requirements with 

respect to treatment of excess emissions 

during periods of startup, shutdown and 

malfunction at a source in SIP provisions. 

The most comprehensive statement of the 

EPA’s SSM Policy prior to this final action 

is embodied in a 1999 guidance document 

discussed in more detail in this final action. 

That specific guidance document is referred 

to as the 1999 SSM Guidance. The final 

action described in this document embodies 

the EPA’s updated SSM Policy for SIP 

provisions relevant to excess emissions 

during SSM events. In section XI of this 

document, the EPA provides a statement of 

the Agency’s SSM SIP Policy as of 2015. 

The term startup means, generally, the 

setting in operation of a source for any 

reason. In this document, the EPA uses this 

term in the generic sense. In an individual 

SIP provision it may be appropriate to 

include a specifically tailored definition of 

this term to address a particular source 

category for a particular purpose. 

II. Overview of Final Action and Its 

Consequences 

A. Summary 

The EPA is in this document taking 

final action on a petition for rulemaking 

that the Sierra Club filed with the EPA 

Administrator on June 30, 2011. The 

Petition concerns how air agency rules 

in EPA-approved SIPs treat excess 

emissions during periods of SSM of 

industrial source process or emission 

control equipment. Many of these rules 

were added to SIPs and approved by the 

EPA in the years shortly after the 1970 

amendments to the CAA, which for the 

first time provided for the system of 

clean air plans that were to be prepared 

by air agencies and approved by the 

EPA. At that time, it was widely 

believed that emission limitations set at 

levels representing good control of 

emissions during periods of so-called 

‘‘normal’’ operation (which, until no 

later than 1982, was meant by the EPA 

to refer to periods of operation other 

than during startup, shutdown, 

maintenance or malfunction) could in 

some cases not be met with the same 

emission control strategies during 

periods of startup, shutdown, 

maintenance or malfunction.2

Accordingly, it was common for state 

plans to include provisions for special, 

more lenient treatment of excess 

emissions during such periods of 

startup, shutdown, maintenance or 

malfunction. Many of these provisions 

took the form of absolute or conditional 

statements that excess emissions from a 

source, when they occur during startup, 

shutdown, malfunction or otherwise 

outside of the source’s so-called 

‘‘normal’’ operations, were not to be 

considered violations of the air agency 

rules; i.e., these emissions were 

considered exempt from legal control. 

Excess emission provisions for 

startup, shutdown, maintenance and 

malfunctions were often included as 

part of the original SIPs that the EPA 

approved in 1971 and 1972. In the early 

1970s, because the EPA was inundated 

with proposed SIPs and had limited 

experience in processing them, not 

enough attention was given to the 

adequacy, enforceability and 

consistency of these provisions. 

Consequently, many SIPs were 

approved with broad and loosely 

defined provisions to control excess 

emissions. Starting in 1977, however, 

the EPA discerned and articulated to air 

agencies that exemptions for excess 

emissions during such periods were 

inconsistent with certain requirements 

of the CAA.3 The EPA also realized that 

such provisions allow opportunities for 

sources to emit pollutants during such 

periods repeatedly and in quantities that 

could cause unacceptable air pollution 

in nearby communities with no legal 

pathway within the existing EPAapproved SIP for air agencies, the EPA, 

the public or the courts to require the 

sources to make reasonable efforts to 

reduce these emissions. The EPA has 

attempted to be more careful after 1977 

not to approve SIP submissions that 

contain illegal SSM provisions and has 

issued several guidance memoranda to 

advise states on how to avoid 

impermissible provisions 4 as they 

expand and revise their SIPs. The EPA 

has also found several SIPs to be 

deficient because of problematic SSM 

provisions and called upon the affected 

states to amend their SIPs. However, in 

light of the other high-priority work 

facing both air agencies and the EPA, 

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5See Settlement Agreement executed November 

30, 2011, in the rulemaking docket at EPA–HQ– 

OAR–2012–0322–0039, to address a lawsuit filed by 

Sierra Club and WildEarth Guardians in the United 

States District Court for the Northern District of 

California: Sierra Club et al. v. Jackson, No. 3:10– 

cv–04060–CRB (N.D. Cal.). A subsequent 

Modification to the Settlement Agreement specifies 

a deadline of May 22, 2015, for signature on the 

final action to respond to the Petition. 

6See Memorandum, ‘‘Statutory, Regulatory, and 

Policy Context for this Rulemaking,’’ February 4, 

2013, in the rulemaking docket at EPA–HQ–OAR– 

2012–0322–0029. The EPA notes that with respect 

to the legal basis for affirmative defense provisions 

in SIPs, the Agency has revised its views as a result 

of a court decision, as explained in more detail in 

the SNPR. Thus, the portions of that background 

memorandum that concern affirmative defense 

provisions are no longer germane to this action. 

7See ‘‘Approval and Promulgation of 

Implementation Plans; Kentucky; Approval of 

Revisions to the Jefferson County Portion of the 

Kentucky SIP; Emissions During Startups, 

Shutdowns, and Malfunctions,’’ 79 FR 33101 (June 

10, 2014). 

8See ‘‘Approval and Promulgation of 

Implementation Plans; Wyoming; Revisions to the 

Air Quality Standards and Regulations,’’ 79 FR 

62859 (October 21, 2014). 

9See ‘‘Approval and Promulgation of 

Implementation Plans; North Dakota; Revisions to 

the Air Pollution Control Rules,’’ 79 FR 63045 

(October 22, 2014). 

the EPA had not until the February 2013 

proposal initiated a broader effort to 

require a larger number of states to 

remove impermissible provisions from 

their SIPs and to adopt other, 

approvable approaches for addressing 

excess emissions when appropriate. 

Public interest in the issue of SSM 

provisions in SIPs is evidently high, on 

the basis of the large number of public 

submissions made to the rulemaking 

docket in response to the February 2013 

proposal (representing approximately 

69,000 unique commenters) and the 

SNPR (over 20,000 commenters, some of 

whom had also made submissions in 

response to the earlier proposal). The 

EPA has attempted to further count 

commenters according to general 

categories (state and local governments, 

industry commenters, public interest 

groups and individual commenters), as 

described in section V.D.1 of this 

document. Public interest groups, 

including the Petitioner, have sued the 

EPA in several state-specific cases 

concerning SIP issues, and they have 

been urging the EPA to give greater 

priority generally to addressing the 

issue of SSM provisions in SIPs. In one 

of these SIP cases, the EPA entered into 

a settlement agreement requiring it to 

respond to the Petition from the Sierra 

Club. A copy of the settlement 

agreement is provided in the docket for 

this rulemaking.5

The EPA emphasizes that there are 

other approaches that would be 

consistent with CAA requirements for 

SIP provisions that states can use to 

address emissions during SSM events. 

While automatic exemptions and 

director’s discretion exemptions from 

otherwise applicable emission 

limitations are not consistent with the 

CAA, SIPs may include criteria and 

procedures for the use of enforcement 

discretion by air agency personnel. 

Similarly, SIPs may, rather than exempt 

emissions during SSM events, include 

emission limitations that subject those 

emissions to alternative numerical 

limitations or other technological 

control requirements or work practice 

requirements during startup and 

shutdown events, so long as those 

components of the emission limitations 

meet applicable CAA requirements. In 

this action, the EPA is again articulating 

its interpretation of the CAA in the SSM 

Policy that reflects these principles and 

is applying this interpretation to issue a 

SIP call for specific existing provisions 

in the SIPs of 36 states. In some cases, 

the EPA’s review involved a close 

reading of the provision in the SIP and 

its context to discern whether it was in 

fact an exemption, a statement regarding 

exercise of enforcement discretion by 

the air agency or an affirmative defense. 

Each state will ultimately decide how to 

address the SIP inadequacies identified 

by the EPA in this final action. The EPA 

acknowledges that for some states, this 

rulemaking entailed the EPA’s 

evaluation of SIP provisions that may 

date back several decades. Aware of that 

fact, the EPA is committed to working 

closely with each of the affected states 

to develop approvable SIP submissions 

consistent with the guidance articulated 

in the updated SSM Policy in this final 

action. Section IX of this document 

presents the EPA’s analysis of each 

specific SIP provision at issue in this 

action. The EPA’s review also involved 

interpretation of several relevant 

sections of the CAA. While the EPA has 

already developed and has been 

implementing the SSM Policy that is 

based on its interpretation of the CAA 

for SIP provisions, this action provides 

the EPA an opportunity to update the 

SSM Policy and its basis in the CAA 

through notice and comment. To that 

end, section XI of this document 

contains a restatement of the EPA’s SSM 

Policy for SIP provisions as revised and 

updated for 2015. Also, supplementary 

to the February 2013 proposal, the EPA 

provided a background memorandum to 

summarize the legal and administrative 

context for this action which is available 

in the docket for this rulemaking.6 This 

final document is intended to clarify 

how states can resolve the identified 

deficiencies in their SIPs as well as to 

provide all air agencies guidance as they 

develop SIPs in the future. 

In summary, the EPA is agreeing with 

the Petitioner that many of the 

identified SIP provisions are not 

permissible under the CAA. However, 

in some cases the EPA is instead 

concluding that an identified SIP 

provision is actually consistent with 

CAA requirements. In addition, the EPA 

notes, this final action does not include 

a final finding of substantial inadequacy 

and SIP call for specific SIP provisions 

included in the February 2013 proposal 

for several air agencies, because of SIP 

revisions made subsequent to that 

proposal. The state of Kentucky has 

already submitted, and the EPA has 

approved, SIP revisions that corrected 

the problematic provisions applicable in 

the Jefferson County (Louisville, 

Kentucky) area.7 The state of Wyoming 

has already submitted, and the EPA has 

approved, SIP revisions that corrected 

the problematic provisions applicable 

statewide.8 The state of North Dakota 

has likewise already submitted, and the 

EPA has approved, SIP revisions that 

corrected a portion of the problematic 

provisions applicable statewide.9

Of the 41 states for which SIP 

provisions were identified by the 

Petition or identified independently by 

the Agency in the SNPR, the EPA is 

issuing a SIP call for 36 states. The EPA 

is aware of other SSM-related SIP 

provisions that were not identified in 

the Petition but that may be inconsistent 

with the EPA’s interpretation of the 

CAA. For SIP provisions that have 

potential defects other than an 

impermissible affirmative defense, the 

EPA elected to focus on the provisions 

specifically raised in the Petition. The 

EPA may address these other provisions 

later in a separate notice-and-comment 

action. States are encouraged to 

consider the updated SSM Policy laid 

out in this final action in reviewing 

their own SIP provisions. With respect 

to affirmative defense provisions, 

however, the EPA elected to identify 

some additional provisions not included 

in the Petition. This is necessary to 

minimize potential confusion relating to 

other recent rulemakings and court 

decisions that pertain generally to 

affirmative defense provisions. 

Therefore, in order to give updated and 

comprehensive guidance with respect to 

affirmative defense provisions, the EPA 

has also addressed additional 

affirmative defense provisions in 17 

states in the SNPR and in this final 

action. See section V.D.3 of this 

document for further explanation as to 

which SSM-related SIP provisions the 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33845 

10The term ‘‘substantially inadequate’’ is used in 

the CAA and is discussed in detail in section VIII.A 

of this document. 

EPA reviewed for consistency with CAA 

requirements as part of this rulemaking. 

B. What the Petitioner Requested 

The Petition includes three 

interrelated requests concerning the 

treatment in SIPs of excess emissions by 

sources during periods of SSM. 

First, the Petitioner argued that SIP 

provisions providing an affirmative 

defense for monetary penalties for 

excess emissions in judicial proceedings 

are contrary to the CAA. Thus, the 

Petitioner advocated that the EPA 

should rescind its interpretation of the 

CAA expressed in the SSM Policy that 

allows appropriately drawn affirmative 

defense provisions in SIPs. The 

Petitioner made no distinction between 

affirmative defenses for excess 

emissions related to malfunction and 

those related to startup or shutdown. 

Further, the Petitioner requested that 

the EPA issue a SIP call requiring states 

to eliminate all such affirmative defense 

provisions in existing SIPs. As 

explained later in this final document, 

the EPA has decided to fully grant this 

request. Although the EPA initially 

proposed to grant in part and to deny in 

part this request in the February 2013 

proposal, a subsequent court decision 

concerning the legal basis for affirmative 

defense provisions under the CAA 

caused the Agency to reexamine this 

question. As a result, the EPA issued the 

SNPR to present its revised 

interpretation of the CAA with respect 

to this issue and to propose action on 

the Petition and on specific existing 

affirmative defense provisions in the 

SIPs of 17 states consistent with the 

reasoning of that court decision. In this 

final action, the EPA is revising its SSM 

Policy with respect to affirmative 

defenses for violations of SIP 

requirements. The EPA believes that SIP 

provisions that function to alter the 

jurisdiction of the federal courts under 

CAA section 113 and section 304 to 

determine liability and to impose 

remedies are inconsistent with 

fundamental legal requirements of the 

CAA, especially with respect to the 

enforcement regime explicitly created 

by statute. 

Second, the Petitioner argued that 

many existing SIPs contain 

impermissible provisions, including 

automatic exemptions from applicable 

emission limitations during SSM events, 

director’s discretion provisions that in 

particular provide discretionary 

exemptions from applicable emission 

limitations during SSM events, 

enforcement discretion provisions that 

appear to bar enforcement by the EPA 

or citizens for such excess emissions 

and inappropriate affirmative defense 

provisions that are not consistent with 

the CAA or with the recommendations 

in the EPA’s SSM Policy. The Petitioner 

identified specific provisions in SIPs of 

39 states that it considered inconsistent 

with the CAA and explained the basis 

for its objections to the provisions. As 

explained later in this final document, 

the EPA agrees with the Petitioner that 

some of these existing SIP provisions 

are legally impermissible and thus finds 

such provisions ‘‘substantially 

inadequate’’ 10 to meet CAA 

requirements. Among the reasons for the 

EPA’s action is to eliminate SIP 

provisions that interfere with 

enforcement in a manner prohibited by 

the CAA. Simultaneously, where the 

EPA agrees with the Petitioner, the EPA 

is issuing a SIP call that directs the 

affected state to revise its SIP 

accordingly. For the remainder of the 

identified provisions, however, the EPA 

disagrees with the contentions of the 

Petitioner and is thus denying the 

Petition with respect to those provisions 

and taking no further action. The EPA’s 

action issuing the SIP calls on this 

portion of the Petition will assure that 

these SIPs comply with the fundamental 

requirements of the CAA with respect to 

the treatment of excess emissions during 

periods of SSM. The majority of the 

state-specific provisions affected by this 

SIP call action are inconsistent with the 

EPA’s longstanding interpretation of the 

CAA through multiple iterations of its 

SSM Policy. With respect to SIP 

provisions that include an affirmative 

defense for violations of SIP 

requirements, however, the EPA has 

revised its prior interpretation of the 

statute that would have allowed such 

provisions under certain very limited 

conditions. Based upon an evaluation of 

the relevant statutory provisions in light 

of more recent court decisions, the EPA 

is issuing a SIP call to address existing 

affirmative defense provisions that 

would operate to alter or eliminate the 

jurisdiction of courts to assess liability 

and impose remedies and that would 

thereby contradict explicit provisions of 

the CAA relating to judicial authority. 

Third, the Petitioner argued that the 

EPA should not rely on interpretive 

letters from states to resolve any 

ambiguity, or perceived ambiguity, in 

state regulatory provisions in SIP 

submissions. The Petitioner reasoned 

that all regulatory provisions should be 

clear and unambiguous on their face 

and that any reliance on interpretive 

letters to alleviate facial ambiguity in 

SIP provisions can lead to later 

problems with compliance and 

enforcement. Extrapolating from several 

instances in which the basis for the 

original approval of a SIP provision 

related to excess emissions during SSM 

events was arguably not clear, the 

Petitioner contended that the EPA 

should never use interpretive letters to 

resolve such ambiguities. As explained 

later in this proposal, the EPA 

acknowledges the concern of the 

Petitioner that provisions in SIPs should 

be clear and unambiguous. However, 

the EPA does not agree with the 

Petitioner that reliance on interpretive 

letters in a rulemaking context is never 

appropriate. Without the ability to rely 

on a state’s interpretive letter that can in 

a timely way clarify perceived 

ambiguity in a provision in a SIP 

submission, however small that 

ambiguity may be, the EPA may have no 

recourse other than to disapprove the 

state’s SIP submission. Thus, the EPA is 

denying the request that actions on SIP 

submissions never rely on interpretive 

letters. Instead, the EPA explains how 

proper documentation of reliance on 

interpretive letters in notice-andcomment rulemaking nevertheless 

addresses the practical concerns of the 

Petitioner. 

C. To which air agencies does this 

rulemaking apply and why? 

In general, the final action may be of 

interest to all air agencies because the 

EPA is clarifying, restating and revising 

its longstanding SSM Policy with 

respect to what the CAA requires 

concerning SIP provisions relevant to 

excess emissions during periods of 

SSM. For example, the EPA is granting 

the Petitioner’s request that the EPA 

rescind its prior interpretation of the 

CAA that, as stated in prior guidance in 

the SSM Policy, allowed appropriately 

drawn affirmative defense provisions 

applicable to malfunctions. The EPA is 

also reiterating, clarifying or revising its 

prior guidance with respect to several 

other issues related to SIP provisions 

applicable to SSM events in order to 

ensure that future SIP submissions, not 

limited to those that affected states 

make in response to this action, are fully 

consistent with the CAA. For example, 

the EPA is reiterating and clarifying its 

prior guidance concerning how states 

may elect to replace existing exemptions 

for excess emissions during SSM events 

with properly developed alternative 

emission limitations that apply to the 

affected sources during startup, 

shutdown or other normal modes of 

source operation (i.e., that apply to 

excess emissions during those normal 

modes of operation as opposed to 

during malfunctions). This action also 

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33846 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

11The state has the primary responsibility to 

implement SIP obligations, pursuant to CAA 

section 107(a). However, as CAA section 

110(a)(2)(E) allows, a state may authorize and rely 

on a local or regional government, agency or 

instrumentality to carry out the SIP or a portion of 

the SIP within its jurisdiction. As a result, some of 

the SIP provisions at issue in this rulemaking apply 

to specific portions of a state. Thus, in certain 

states, submission of a corrective SIP revision may 

involve rulemaking in more than one jurisdiction. 

addresses the use of interpretive letters 

for purposes of resolving an actual or 

perceived ambiguity in a SIP 

submission during the EPA’s evaluation 

of the SIP revision at issue. 

In addition, this final action is 

directly relevant to the states with SIP 

provisions relevant to excess emissions 

that the EPA has determined are 

inconsistent with CAA requirements or 

with the EPA’s interpretation of those 

requirements in the SSM Policy. In this 

final action, the EPA is either granting 

or denying the Petition with respect to 

the specific existing SIP provisions in 

each of 39 states identified by the 

Petitioner as allegedly inconsistent with 

the CAA. The 39 states (for which the 

Petitioner identified SIP provisions 

applicable in 46 statewide and local 

jurisdictions and no tribal areas) 11 are 

listed in table 1, ‘‘List of States with SIP 

Provisions for Which the EPA Either 

Grants or Denies the Petition, in Whole 

or in Part.’’ After evaluating the Petition, 

the EPA is granting the Petition with 

respect to one or more provisions in 34 

of the 39 states listed, and these are the 

states for which the action on the 

Petition, according to table 1, is either 

‘‘Grant’’ or ‘‘Partially grant, partially 

deny.’’ Conversely, the EPA is denying 

the petition with respect to all 

provisions that the Petitioner identified 

in 5 of the 39 states, and these (Idaho, 

Nebraska, New Hampshire, Oregon and 

Wyoming) are the states for which the 

final action on the Petition, according to 

table 1, is ‘‘Deny.’’ 

TABLE 1—LIST OF STATES WITH SIP PROVISIONS FOR WHICH THE EPA EITHER GRANTS OR DENIES THE PETITION, IN

WHOLE OR IN PART

EPA region State Final action on petition 

I .............................. Maine ...................................................................................................... Grant. 

New Hampshire ...................................................................................... Deny. 

Rhode Island .......................................................................................... Grant. 

II ............................. New Jersey ............................................................................................. Partially grant, partially deny. 

III ............................ Delaware ................................................................................................. Grant. 

District of Columbia ................................................................................ Partially grant, partially deny. 

Virginia .................................................................................................... Grant. 

West Virginia .......................................................................................... Grant. 

IV ........................... Alabama .................................................................................................. Grant. 

Florida ..................................................................................................... Grant. 

Georgia ................................................................................................... Grant. 

Kentucky ................................................................................................. Partially grant, partially deny. 

Mississippi .............................................................................................. Grant. 

North Carolina ........................................................................................ Grant. 

South Carolina ........................................................................................ Partially grant, partially deny. 

Tennessee .............................................................................................. Grant. 

V ............................ Illinois ...................................................................................................... Grant. 

Indiana .................................................................................................... Grant. 

Michigan ................................................................................................. Grant. 

Minnesota ............................................................................................... Grant. 

Ohio ........................................................................................................ Partially grant, partially deny. 

VI ........................... Arkansas ................................................................................................. Grant. 

Louisiana ................................................................................................ Grant. 

New Mexico ............................................................................................ Grant. 

Oklahoma ............................................................................................... Grant. 

VII .......................... Iowa ........................................................................................................ Partially grant, partially deny. 

Kansas .................................................................................................... Grant. 

Missouri .................................................................................................. Partially grant, partially deny. 

Nebraska ................................................................................................ Deny. 

VIII ......................... Colorado ................................................................................................. Grant. 

Montana .................................................................................................. Grant. 

North Dakota .......................................................................................... Partially grant, partially deny. 

South Dakota .......................................................................................... Grant. 

Wyoming ................................................................................................. Deny. 

IX ........................... Arizona .................................................................................................... Partially grant, partially deny. 

X ............................ Alaska ..................................................................................................... Grant. 

Idaho ....................................................................................................... Deny. 

Oregon .................................................................................................... Deny. 

Washington ............................................................................................. Grant. 

For each state for which the final 

action on the Petition is either ‘‘Grant’’ 

or ‘‘Partially grant, partially deny,’’ the 

EPA finds that certain specific 

provisions in each state’s SIP are 

substantially inadequate to meet CAA 

requirements for the reason that these 

provisions are inconsistent with the 

CAA with regard to how the state treats 

excess emissions from sources during 

periods of SSM. With respect to the 

affirmative defense provisions identified 

in the Petition, the EPA finds that they 

improperly impinge upon the statutory 

jurisdiction of the courts to determine 

liability and impose remedies for 

violations of SIP emission limitations. 

The EPA believes that certain specific 

provisions in these SIPs fail to meet 

fundamental statutory requirements 

intended to attain and maintain the 

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12The six states in which the EPA independently 

evaluated affirmative defense provisions are: 

California; South Carolina, New Mexico, Texas, 

Washington and West Virginia. The EPA evaluated 

the New Mexico SIP with respect to provisions 

applicable to the state and Albuquerque-Bernalillo 

County. The EPA evaluated the Washington SIP 

with respect to provisions applicable to the state, 

the Energy Facility Site Evaluation Council and the 

Southwest Clean Air Agency. 

13The 17 states for which the EPA finds that 

specific affirmative defense provisions are 

substantially inadequate to meet CAA requirements 

are counted as follows: The EPA evaluated 

affirmative defense provisions identified by the 

Petitioner for 14 states: Alaska; Arizona; Arkansas; 

Colorado; District of Columbia; Georgia; Illinois; 

Indiana; Kentucky; Michigan; Mississippi; New 

Mexico; Virginia; and Washington. The EPA 

evaluated affirmative defense provisions that it 

independently identified among two states 

identified by the Petitioner: South Carolina; and 

West Virginia. Further, the EPA independently 

identified and evaluated affirmative defense 

provisions in two states that were not included in 

the Petition: California; and Texas. In the final 

action, the EPA is finding one or more affirmative 

defense provisions to be substantially inadequate in 

all but one of the 18 states for which the EPA 

evaluated affirmative defense provisions; for one 

state, Kentucky, the affirmative defense provision, 

which was applicable in Jefferson County, was 

corrected prior to the EPA’s issuing its SNPR. 

NAAQS, protect prevention of 

significant deterioration (PSD) 

increments and improve visibility. 

Equally importantly, the EPA believes 

that the same provisions may 

undermine the ability of states, the EPA 

and the public to enforce emission 

limitations in the SIP that have been 

relied upon to ensure attainment or 

maintenance of the NAAQS or to meet 

other CAA requirements. 

For each state for which the final 

action on the Petition is either ‘‘Grant’’ 

or ‘‘Partially grant, partially deny,’’ the 

EPA is also in this final action calling 

for a SIP revision as necessary to correct 

the identified deficient provisions. The 

SIP revisions that the states are directed 

to make will rectify a number of 

different types of defects in existing 

SIPs, including automatic exemptions 

from emission limitations, 

impermissible director’s discretion 

provisions, enforcement discretion 

provisions that have the effect of barring 

enforcement by the EPA or through a 

citizen suit and affirmative defense 

provisions that are inconsistent with 

CAA requirements. A corrective SIP 

revision addressing automatic or 

impermissible discretionary exemptions 

will ensure that excess emissions during 

periods of SSM are treated in 

accordance with CAA requirements. 

Similarly, a corrective SIP revision 

addressing ambiguity in who may 

enforce against violations of these 

emission limitations will also ensure 

that CAA requirements to provide for 

enforcement are met. A SIP revision to 

remove affirmative defense provisions 

will assure that the SIP provision does 

not purport to alter or eliminate the 

jurisdiction of federal courts to assess 

liability or to impose remedies 

consistent with the statutory authority 

provided in CAA section 113 and 

section 304. The particular provisions 

for which the EPA is requiring SIP 

revisions are summarized in section IX 

of this document. Many of these 

provisions were added to the respective 

SIPs many years ago and have not been 

the subject of action by the state or the 

EPA since. 

For each of the states for which the 

EPA is denying or is partially denying 

the Petition, the EPA finds that the 

particular provisions identified by the 

Petitioner are not substantially 

inadequate to meet the requirements 

pursuant to CAA section 110(k)(5), 

because the provisions: (i) Are, as they 

were described in the Petition and as 

they appear in the existing SIP, 

consistent with the requirements of the 

CAA; or (ii) are, as they appear in the 

existing SIP after having been revised 

subsequent to the date of the Petition, 

consistent with the requirements of the 

CAA; or (iii) have, subsequent to the 

date of the Petition, been removed from 

the SIP. Thus, in this final action, the 

EPA is taking no action to issue a SIP 

call with respect to those states for those 

particular SIP provisions. 

In addition to evaluating specific SIP 

provisions identified in the Petition, the 

EPA has independently evaluated 

additional affirmative defense 

provisions in the SIPs of six states 

(applicable in nine statewide and local 

jurisdictions).12 As explained in the 

SNPR, the EPA determined that this 

approach was necessary in order to take 

into consideration recent judicial 

decisions concerning affirmative 

defense provisions and CAA 

requirements. As the result of this 

evaluation, the EPA finds that specific 

affirmative defense provisions in 17 

states (applicable in 23 statewide and 

local jurisdictions) are substantially 

inadequate to meet CAA requirements 

for the reason that these provisions 

impinge upon the statutory jurisdiction 

of the federal courts to determine 

liability and impose remedies for 

violations of SIP emission limitations.13

By improperly impinging upon the 

jurisdiction of the federal courts, the 

EPA believes, these provisions fail to 

meet fundamental statutory 

requirements intended to attain and 

maintain the NAAQS, protect PSD 

increments and improve visibility. As 

with the affirmative defense provisions 

identified in the Petition, the EPA 

believes that these provisions may 

undermine the ability of states, the EPA 

and the public to enforce emission 

limitations in the SIP that have been 

relied upon to ensure attainment or 

maintenance of the NAAQS or to meet 

other CAA requirements. 

In this final action, the EPA is issuing 

a SIP call to each of 36 states (for 

provisions applicable in 45 statewide 

and local jurisdictions) with respect to 

these provisions. The 36 states are listed 

in table 2, ‘‘List of All States With SIP 

Provisions Subject to SIP Call.’’ The 

EPA emphasizes that this SIP call action 

pertains to the specific SIP provisions 

identified and discussed in section IX of 

this document. The actions required of 

individual states in response to this SIP 

call action are discussed in more detail 

in section IX of this action. 

TABLE 2—LIST OF ALL STATES WITH SIP PROVISIONS SUBJECT TO SIP CALL

EPA region State Area 

I ............................... Maine ................................................. State. 

Rhode Island ..................................... State. 

II .............................. New Jersey ....................................... State. 

III ............................. Delaware ........................................... State. 

District of Columbia ........................... State. 

Virginia .............................................. State. 

West Virginia ..................................... State. 

IV ............................. Alabama ............................................ State. 

Florida ............................................... State. 

Georgia .............................................. State. 

Kentucky ............................................ State. 

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TABLE 2—LIST OF ALL STATES WITH SIP PROVISIONS SUBJECT TO SIP CALL—Continued 

EPA region State Area 

Mississippi ......................................... State. 

North Carolina ................................... State and Forsyth County. 

South Carolina .................................. State. 

Tennessee ......................................... State, Knox County and Shelby County. 

V .............................. Illinois ................................................ State. 

Indiana ............................................... State. 

Michigan ............................................ State. 

Minnesota .......................................... State. 

Ohio ................................................... State. 

VI ............................. Arkansas ........................................... State. 

Louisiana ........................................... State. 

New Mexico ....................................... State and Albuquerque-Bernalillo County. 

Oklahoma .......................................... State. 

Texas ................................................. State. 

VII ............................ Iowa ................................................... State. 

Kansas .............................................. State. 

Missouri ............................................. State. 

VIII ........................... Colorado ............................................ State. 

Montana ............................................ State. 

North Dakota ..................................... State. 

South Dakota .................................... State. 

IX ............................. Arizona .............................................. State and Maricopa County. 

California ........................................... Eastern Kern APCD, Imperial County APCD and San Joaquin Valley Unified 

APCD. 

X .............................. Alaska ................................................ State. 

Washington ....................................... State, Energy Facility Site Evaluation Council and Southwest Clean Air Agency.

D. What are the next steps for states that 

are receiving a finding of substantial 

inadequacy and a SIP call? 

The EPA is finalizing a finding of 

substantial inadequacy and issuing a 

SIP call for the states listed in table 2 

(see section II.C of this document). The 

EPA is also establishing a deadline by 

which these states must make a SIP 

submission to rectify the specifically 

identified deficiencies in their 

respective SIPs. Pursuant to CAA 

section 110(k)(5), the EPA has authority 

to set a SIP submission deadline that is 

up to 18 months from the date of the 

final finding of substantial inadequacy. 

After considering comment on this 

issue, the EPA is in this final action 

establishing a deadline of November 22, 

2016, by which each affected state is to 

respond to the SIP call. The deadline 

falls 18 months from the date of 

signature and dissemination of this final 

finding of substantial inadequacy. 

Thereafter, the EPA will review the 

adequacy of that new SIP submission in 

accordance with the CAA requirements 

of sections 110(a), 110(k)(3), 110(l) and 

193, including the EPA’s interpretation 

of the CAA reflected in the SSM Policy 

as clarified and updated through this 

rulemaking. The EPA believes that 

states should be provided the maximum 

time allowable under CAA section 

110(k)(5) in order to have sufficient time 

to make appropriate SIP revisions 

following their own SIP development 

process. Such a schedule will allow for 

the necessary SIP development process 

to correct the deficiencies yet still 

achieve the necessary SIP improvements 

as expeditiously as practicable 

consistent with the maximum time 

allowed by statute. 

E. What are potential impacts on 

affected states and sources? 

The issuance of a SIP call requires an 

affected state to take action to revise its 

SIP. That action by the state may, in 

turn, affect sources as described later in 

this document. The states that are 

receiving a SIP call in this final action 

will in general have options as to 

exactly how to revise their SIPs. In 

response to a SIP call, a state retains 

broad discretion concerning how to 

revise its SIP, so long as that revision is 

consistent with the requirements of the 

CAA. Some provisions that are affected 

by this SIP call, for example an 

automatic exemption provision, have to 

be removed entirely and an affected 

source could no longer depend on the 

exemption to avoid all liability for 

excess emissions during SSM events. 

Some other provisions, for example a 

problematic enforcement discretion 

provision, could either be removed 

entirely from the SIP or retained if 

revised appropriately to apply only to 

state enforcement personnel, in 

accordance with the EPA’s 

interpretation of the CAA as described 

in the EPA’s SSM Policy. The EPA notes 

that if a state removes a SIP provision 

that pertains to the state’s exercise of 

enforcement discretion, this removal 

would not affect the ability of the state 

to apply its traditional enforcement 

discretion in its enforcement program. It 

would merely make the exercise of such 

discretion case-by-case in nature, as is 

the normal form of such discretion. 

In addition, affected states may 

choose to consider reassessing 

particular emission limitations, for 

example to determine whether those 

emission limitations can be revised such 

that well-managed emissions during 

planned operations such as startup and 

shutdown would not exceed the revised 

emission limitation, while still 

protecting air quality and meeting other 

applicable CAA requirements. Such a 

revision of an emission limitation will 

need to be submitted as a SIP revision 

for the EPA’s approval if the existing 

limitation to be changed is already 

included in the SIP or if the existing SIP 

relies on the particular existing 

emission limitation to meet a CAA 

requirement. In such instances, the EPA 

would review the SIP revision for 

consistency with all applicable CAA 

requirements. A state that chooses to 

revise particular emission limitations, in 

addition to removing or revising the 

aspect of the existing SIP provision that 

is inconsistent with CAA requirements, 

could include those revisions in the 

same SIP submission that addresses the 

SSM provisions identified in the SIP 

call, or it could submit them separately. 

The implications for a regulated 

source in a given state, in terms of 

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14See ‘‘Approval and Promulgation of 

Implementation Plans; Texas; Excess Emissions 

During Startup, Shutdown, Maintenance, and 

Malfunction Activities,’’ 75 FR 68989 (November 

10, 2010). 

15See ‘‘Approval and Promulgation of State 

Implementation Plans; Michigan,’’ 63 FR 8573 

(February 20, 1998). 

whether and how it would potentially 

have to change its equipment or 

practices in order to operate with 

emissions that comply with the revised 

SIP, will depend on the nature and 

frequency of the source’s SSM events 

and how the state has chosen to revise 

the SIP to address excess emissions 

during SSM events. The EPA did not 

conduct an analysis that would indicate, 

e.g., how many owners or operators of 

sources in each affected state would 

likely change any procedures or 

processes for control of emissions from 

those sources during periods of SSM. 

The impacts of revised SIP provisions 

will be unique to each affected state and 

its particular mix of affected sources, 

and thus the EPA cannot predict what 

those impacts might be. Furthermore, 

the EPA does not believe the results of 

such analysis, had one been conducted, 

would significantly affect this 

rulemaking that pertains to whether SIP 

provisions comply with CAA 

requirements. The EPA recognizes that 

after all the responsive SIP revisions are 

in place and are being implemented by 

the states, some sources may need to 

take steps to control emissions better so 

as to comply with emission limitations 

continuously, as required by the CAA, 

or to increase durability of components 

and monitoring systems to detect and 

manage malfunctions promptly. 

The EPA Regional Offices will work 

with states to help them understand 

their options and the potential 

consequences for sources as the states 

prepare their SIP revisions in response 

to this SIP call. 

F. What happens if an affected state 

fails to meet the SIP submission 

deadline? 

If, in the future, the EPA finds that a 

state that is subject to this SIP call 

action has failed to submit a complete 

SIP revision as required, or the EPA 

disapproves such a SIP revision, then 

the finding or disapproval would trigger 

an obligation for the EPA to impose a 

federal implementation plan (FIP) 

within 24 months after that date. That 

FIP obligation would be discharged 

without promulgation of a FIP only if 

the state makes and the EPA approves 

the called-for SIP submission. In 

addition, if a state fails to make the 

required SIP revision, or if the EPA 

disapproves the required SIP revision, 

then either event can also trigger 

mandatory 18-month and 24-month 

sanctions clocks under CAA section 

179. The two sanctions that apply under 

CAA section 179(b) are the 2-to-1 

emission offset requirement for all new 

and modified major sources subject to 

the nonattainment new source review 

(NSR) program and restrictions on 

highway funding. More details 

concerning the timing and process of 

the SIP call, and potential consequences 

of the SIP call, are provided in section 

VIII of this document. 

G. What is the status of SIP provisions 

affected by this SIP call action in the 

interim period starting when the EPA 

promulgates the final SIP call and 

ending when the EPA approves the 

required SIP revision? 

When the EPA issues a final SIP call 

to a state, that action alone does not 

cause any automatic change in the legal 

status of the existing affected 

provision(s) in the SIP. During the time 

that the state takes to develop a SIP 

revision in response to the SIP call and 

the time that the EPA takes to evaluate 

and act upon the resulting SIP 

submission from the state pursuant to 

CAA section 110(k), the existing 

affected SIP provision(s) will remain in 

place. The EPA notes, however, that the 

state regulatory revisions that the state 

has adopted and submitted for SIP 

approval will most likely be already in 

effect at the state level during the 

pendency of the EPA’s evaluation of and 

action upon the new SIP submission. 

The EPA recognizes that in the 

interim period, there may continue to be 

instances of excess emissions that 

adversely affect attainment and 

maintenance of the NAAQS, interfere 

with PSD increments, interfere with 

visibility and cause other adverse 

consequences as a result of the 

impermissible provisions. The EPA is 

particularly concerned about the 

potential for serious adverse 

consequences for public health in this 

interim period during which states, the 

EPA and sources make necessary 

adjustments to rectify deficient SIP 

provisions and take steps to improve 

source compliance. However, given the 

need to resolve these longstanding SIP 

deficiencies in a careful and 

comprehensive fashion, the EPA 

believes that providing sufficient time 

consistent with statutory constraints for 

these corrections to occur will 

ultimately be the best course to meet the 

ultimate goal of eliminating the 

inappropriate SIP provisions and 

replacing them with provisions 

consistent with CAA requirements. 

III. Statutory, Regulatory and Policy 

Background 

The Petition raised issues related to 

excess emissions from sources during 

periods of SSM and the correct 

treatment of these excess emissions in 

SIPs. In this context, ‘‘excess emissions’’ 

are air emissions that exceed the 

otherwise applicable emission 

limitations in a SIP, i.e., emissions that 

would be violations of such emission 

limitations. The question of how to 

address excess emissions correctly 

during SSM events has posed a 

challenge since the inception of the SIP 

program in the 1970s. The primary 

objective of state and federal regulators 

is to ensure that sources of emissions 

are subject to appropriate emission 

controls as necessary in order to attain 

and maintain the NAAQS, protect PSD 

increments, improve visibility and meet 

other statutory requirements. Generally, 

this is achieved through enforceable 

emission limitations on sources that 

apply, as required by the CAA, 

continuously. 

Several key statutory provisions of the 

CAA are relevant to the EPA’s 

evaluation of the Petition. These 

provisions relate generally to the basic 

legal requirements for the content of 

SIPs, the authority and responsibility of 

air agencies to develop such SIPs and 

the EPA’s authority and responsibility 

to review and approve SIP submissions 

in the first instance, as well as the EPA’s 

authority to require improvements to a 

previously approved SIP if the EPA later 

determines that to be necessary for a SIP 

to meet CAA requirements. In addition, 

the Petition raised issues that pertain to 

enforcement of provisions in a SIP. The 

enforcement issues relate generally to 

what constitutes a violation of an 

emission limitation in a SIP, who may 

seek to enforce against a source for that 

violation, and whether the violator 

should be subject to monetary penalties 

as well as other forms of judicial relief 

for that violation. 

The EPA has a longstanding 

interpretation of the CAA with respect 

to the treatment of excess emissions 

during periods of SSM in SIPs. This 

statutory interpretation has been 

expressed, reiterated and elaborated 

upon in a series of guidance documents 

issued in 1982, 1983, 1999 and 2001. In 

addition, the EPA has applied this 

interpretation in individual rulemaking 

actions in which the EPA: (i) Approved 

SIP submissions that were consistent 

with the EPA’s interpretation; 14 (ii) 

disapproved SIP submissions that were 

not consistent with this 

interpretation; 15 (iii) itself promulgated 

regulations in FIPs that were consistent 

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16See ‘‘Federal Implementation Plan for the 

Billings/Laurel, MT [Montana], Sulfur Dioxide 

Area,’’ 73 FR 21418 (April 21, 2008). 

17See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 76 FR 21639 (April 

18, 2011). 

18See generally Catawba County, North Carolina 

v. EPA, 571 F.3d 20, 33–35 (D.C. Cir. 2009) 

(upholding the EPA’s process for developing and 

applying its guidance for designations). 

19Petition at 2. 

20Petition at 12. 

21The EPA notes that a number of commenters 

described the impacts of SIP provisions of these 

types. See, e.g., comments of Sierra Club, et al., 

EPA–HQ–OAR–2012–0322–0622, pp. 28–35 

(describing impacts on several specific 

communities); comments of American Bottom 

Conservancy, EPA–HQ–OAR–2012–0322–0579 

(describing impacts on one specific community); 

and comments of Citizen for Envt’l Justice and Env’l 

Integrity Project, EPA–HQ–OAR–2012–0322–0621, 

pp. 8–17 (discussing impacts of such provisions on 

enforcement more generally). 

22See Memorandum, ‘‘Statutory, Regulatory, and 

Policy Context for this Rulemaking,’’ February 4, 

2013, in the rulemaking docket at EPA–HQ–OAR– 

2012–0322–0029. 

23Petition at 11. 

24 Id. 

25Petition at 12. 

26Petition at 10. 

27 Id. 

28 Id. 

with this interpretation; 16 or (iv) issued 

a SIP call requiring a state to revise an 

impermissible SIP provision.17

The EPA’s SSM Policy is a policy 

statement and thus constitutes 

guidance. As guidance, the SSM Policy 

does not bind states, the EPA or other 

parties, but it does reflect the EPA’s 

interpretation of the statutory 

requirements of the CAA. The EPA’s 

evaluation of any SIP provision, 

whether prospectively in the case of a 

new provision in a SIP submission or 

retrospectively in the case of a 

previously approved SIP submission, 

must be conducted through a noticeand-comment rulemaking in which the 

EPA will determine whether a given SIP 

provision is consistent with the 

requirements of the CAA and applicable 

regulations.18

The Petition raised issues related to 

excess emissions from sources during 

periods of SSM, and the consequences 

of failing to address these emissions 

correctly in SIPs. In broad terms, the 

Petitioner expressed concerns that the 

exemptions for excess emissions and the 

other types of alleged deficiencies in 

existing SIP provisions ‘‘undermine the 

emission limits in SIPs and threaten 

states’ abilities to achieve and maintain 

the NAAQS, thereby threatening public 

health and public welfare, which 

includes agriculture, historic properties 

and natural areas.’’ 19 The Petitioner 

asserted that such exemptions for SSM 

events are ‘‘loopholes’’ that can allow 

dramatically higher amounts of 

emissions and that these emissions ‘‘can 

swamp the amount of pollutants emitted 

at other times.’’ 20 In addition, the 

Petitioner argued that these automatic 

and discretionary exemptions, as well as 

other SIP provisions that interfere with 

the enforcement structure of the CAA, 

undermine the objectives of the CAA. 

The EPA notes that the types of SIP 

deficiencies identified in the Petition 

are not legal technicalities. Compliance 

with the applicable requirements is 

intended to achieve the air quality 

protection and improvement purposes 

and objectives of the CAA. The EPA 

believes that the results of automatic 

and discretionary exemptions in SIP 

provisions, and of other provisions that 

interfere with effective enforcement of 

SIPs, are real-world consequences that 

adversely affect public health. 

Commenters on the February 2013 

proposal provided illustrative examples 

of impacts that these types of SIP 

provisions have on the communities 

located near sources that rely on 

automatic or discretionary exemptions 

for excess emissions during SSM events, 

rather than by designing, operating and 

maintaining their sources to meet the 

applicable emission limitations.21 These 

comments also illustrated the ways in 

which such exemptions, incorrect 

enforcement discretion provisions and 

affirmative defense provisions have 

interfered with the enforcement 

structure of the CAA by raising 

inappropriate impediments to 

enforcement by states, the EPA or 

citizens. 

The EPA’s memorandum providing a 

detailed discussion of the statutory, 

regulatory and policy background for 

this action can be found in the docket 

for this rulemaking.22

IV. Final Action in Response To 

Request To Rescind the EPA Policy 

Interpreting the CAA To Allow 

Affirmative Defense Provisions 

A. What the Petitioner Requested 

The Petitioner’s first request was for 

the EPA to rescind its SSM Policy 

element interpreting the CAA to allow 

affirmative defense provisions in SIPs 

for excess emissions during SSM 

events.23 Related to this request, the 

Petitioner also asked the EPA: (i) To 

find that SIPs containing an affirmative 

defense to monetary penalties for excess 

emissions during SSM events are 

substantially inadequate because they 

do not comply with the CAA; and (ii) 

to issue a SIP call pursuant to CAA 

section 110(k)(5) to require each such 

state to revise its SIP.24 Alternatively, if 

the EPA denies these two related 

requests, the Petitioner asked the EPA: 

(i) To require states with SIPs that 

contain such affirmative defense 

provisions to revise them so that they 

are consistent with the EPA’s 1999 SSM 

Guidance for excess emissions during 

SSM events; and (ii) to issue a SIP call 

pursuant to CAA section 110(k)(5) to 

states with provisions inconsistent with 

the EPA’s interpretation of the CAA.25

The Petitioner requested that the EPA 

rescind its SSM Policy element 

interpreting the CAA to allow SIPs to 

include affirmative defenses for 

violations due to excess emissions 

during any type of SSM events because 

the Petitioner contended there is no 

legal basis for the Agency’s 

interpretation. Specifically, the 

Petitioner cited to two statutory 

grounds, CAA sections 113(b) and 

113(e), related to the type of judicial 

relief available in an enforcement 

proceeding and to the factors relevant to 

the scope and availability of such relief, 

that the Petitioner claimed would bar 

the approval of any type of affirmative 

defense provision in SIPs. The 

Petitioner drew no distinction between 

affirmative defense provisions for 

malfunctions versus affirmative defense 

provisions for startup and shutdown or 

other normal modes of operation; in the 

Petitioner’s view all are equally 

inconsistent with CAA requirements. 

In the Petitioner’s view, the CAA 

‘‘unambiguously grants jurisdiction to 

the district courts to determine penalties 

that should be assessed in an 

enforcement action involving the 

violation of an emissions limit.’’ 26 The 

Petitioner first argued that in any 

judicial enforcement action in a district 

court, CAA section 113(b) provides that 

‘‘such court shall have jurisdiction to 

restrain such violation, to require 

compliance, to assess such penalty, . . . 

and to award any other appropriate 

relief.’’ The Petitioner reasoned that the 

EPA’s SSM Policy is therefore 

fundamentally inconsistent with the 

CAA because it purports to remove the 

discretion and authority of the district 

courts to assess monetary penalties for 

violations if a source is shielded from 

monetary penalties under an affirmative 

defense provision in the approved SIP.27

The Petitioner concluded that the EPA’s 

interpretation of the CAA in the SSM 

Policy element allowing any affirmative 

defenses is impermissible ‘‘because the 

inclusion of an affirmative defense 

provision in a SIP limits the courts’ 

discretion—granted by Congress—to 

assess penalties for Clean Air Act 

violations.’’ 28

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29Petition at 11. 

30Petition at 11. 

31See February 2013 proposal, 78 FR 12459 at 

12468 (February 22, 2013). 

32See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 

2014). 

33See SNPR, 79 FR 55919 (September 17, 2014). 

Second, in reliance on CAA section 

113(e)(1), the Petitioner argued that in a 

judicial enforcement action in a district 

court, the statute explicitly specifies a 

list of factors that the court is to 

consider in assessing penalties.29 The 

Petitioner argued that the EPA’s SSM 

Policy authorizes states to create 

affirmative defense provisions with 

criteria for monetary penalties that are 

inconsistent with the factors that the 

statute specifies and that the statute 

explicitly directs courts to weigh in any 

judicial enforcement action. By 

specifying particular factors for courts to 

consider, the Petitioner reasoned, 

Congress has already definitively 

spoken to the question of what factors 

are germane in assessing monetary 

penalties under the CAA for violations. 

The Petitioner concluded that the EPA 

has no authority to allow a state to 

include an affirmative defense provision 

in a SIP with different criteria to be 

considered in awarding monetary 

penalties because ‘‘[p]reventing the 

district courts from considering these 

statutory factors is not a permissible 

interpretation of the Clean Air Act.’’ 30

A more detailed explanation of the 

Petitioner’s arguments appears in the 

2013 February proposal.31

B. What the EPA Proposed 

In the February 2013 proposal, 

consistent with its interpretation of the 

Act at that time, the EPA proposed to 

deny in part and to grant in part the 

Petition with respect to this overarching 

issue. As a revision to the SSM Policy 

as embodied in the 1999 SSM Guidance, 

the EPA proposed a distinction between 

affirmative defenses for unplanned 

events such as malfunctions and 

planned events such as startup and 

shutdown. The EPA explained the basis 

for its initial proposed action in detail, 

including why the Agency then believed 

that there was a statutory basis for 

narrowly drawn affirmative defense 

provisions that met certain criteria 

applicable to malfunction events but no 

such statutory basis for affirmative 

defense provisions applicable to startup 

and shutdown events. In the February 

2013 proposal, the EPA also proposed to 

deny in part and to grant in part the 

Petition with respect to specific 

affirmative defense provisions in the 

SIPs of various states identified in the 

Petition consistent with that 

interpretation. With respect to these 

specific existing SIP provisions, the EPA 

distinguished between those provisions 

that were consistent with the Agency’s 

interpretation of the CAA as set forth in 

1999 SSM Guidance and were limited to 

malfunction events and other 

affirmative defense provisions that were 

not limited to malfunctions or otherwise 

not consistent with the Agency’s 

interpretation of the CAA and included 

one or more deficiencies. 

Subsequent to the February 2013 

proposal, however, a judicial decision 

by the U.S. Court of Appeals for the 

District of Columbia Circuit (D.C. 

Circuit) in NRDC v. EPA concerning the 

legal basis for affirmative defense 

provisions in the EPA’s own regulations 

caused the Agency to reconsider the 

legal basis for any affirmative defense 

provisions in SIPs, regardless of the type 

of events to which they apply, the 

criteria they may contain or the types of 

judicial remedies they purport to limit 

or eliminate.32 Thus, the EPA issued an 

SNPR to revise its proposed response to 

the Petition with respect to whether 

affirmative defense provisions in SIPs 

are consistent with fundamental legal 

requirements of the CAA.33 In the 

SNPR, the EPA also revised its proposed 

response related to each of the specific 

affirmative defense provisions identified 

in the Petition. Changes to the proposed 

response included revision of the basis 

for the proposed finding of substantial 

inadequacy for many of the provisions 

(to incorporate the EPA’s revised 

interpretation of the CAA into that 

basis). Other changes to the proposed 

response included reversal of the 

proposed denial of the Petition for some 

provisions that the Agency previously 

believed to be consistent with CAA 

requirements but subsequently 

determined were not authorized by the 

Act under the analysis prompted by the 

NRDC v. EPA decision. In order to 

provide comprehensive guidance to all 

states concerning affirmative defense 

provisions in SIPs and to avoid 

confusion that may arise due to recent 

court decisions relevant to such 

provisions under the CAA, the EPA also 

addressed additional existing SIP 

affirmative defense provisions of which 

it was aware although the provisions 

were not specifically identified in the 

Petition. The EPA initially examined the 

specific affirmative defense provisions 

identified by the Petitioner in 14 states 

but subsequently broadened its review 

to include additional provisions in four 

states, including two states that were 

not included in the Petition. Most 

importantly, the EPA provided a 

detailed explanation in the SNPR as to 

why it now believes that the logic of the 

court in the NRDC v. EPA decision 

vacating the affirmative defense in an 

Agency emission limitation under CAA 

section 112 likewise extends to 

affirmative defense provisions in SIPs. 

C. What Is Being Finalized in This 

Action 

The EPA is taking final action to grant 

the Petition on the request to rescind its 

SSM Policy element that interpreted the 

CAA to allow states to elect to create 

affirmative defense provisions in SIPs. 

The EPA is also taking final action to 

grant the Petition on the request to make 

a finding of substantial inadequacy and 

to issue SIP calls for specific existing 

SIP provisions that include an 

affirmative defense as identified in the 

SNPR. The specific SIP provisions at 

issue are discussed in section IX of this 

document. These existing affirmative 

defense provisions include some 

provisions that the EPA had previously 

determined were consistent with the 

CAA as interpreted in the 1999 SSM 

Guidance and other provisions that 

were not consistent even with that 

interpretation of the CAA. As explained 

in the SNPR, the EPA has now 

concluded that the enforcement 

structure of the CAA, embodied in 

section 113 and section 304, precludes 

any affirmative defense provisions that 

would operate to limit a court’s 

jurisdiction or discretion to determine 

the appropriate remedy in an 

enforcement action. These provisions 

are not appropriate under the CAA, no 

matter what type of event they apply to, 

what criteria they contain or what forms 

of remedy they purport to limit or 

eliminate. 

The EPA is revising its interpretation 

of the CAA with respect to affirmative 

defenses based upon a reevaluation of 

the statutory provisions that pertain to 

enforcement of SIP provisions in light of 

recent court opinions. Section 113(b) 

provides courts with explicit 

jurisdiction to determine liability and to 

impose remedies of various kinds, 

including injunctive relief, compliance 

orders and monetary penalties, in 

judicial enforcement proceedings. This 

grant of jurisdiction comes directly from 

Congress, and the EPA is not authorized 

to alter or eliminate this jurisdiction 

under the CAA or any other law. With 

respect to monetary penalties, CAA 

section 113(e) explicitly includes the 

factors that courts and the EPA are 

required to consider in the event of 

judicial or administrative enforcement 

for violations of CAA requirements, 

including SIP provisions. Because 

Congress has already given federal 

courts the jurisdiction to determine 

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34See 79 FR 55919 at 12931–34 (September 17, 

2014). 

35 551 F.3d 1019 (D.C. Cir. 2008). 

36The EPA notes that only the state and the 

Agency have authority to seek criminal penalties for 

knowing and intentional violation of CAA 

requirements. The EPA has this explicit authority 

under section 113(c). 

what monetary penalties are appropriate 

in the event of judicial enforcement for 

a violation of a SIP provision, neither 

the EPA nor states can alter or eliminate 

that jurisdiction by superimposing 

restrictions on that jurisdiction and 

discretion granted by Congress to the 

courts. Affirmative defense provisions 

by their nature purport to limit or 

eliminate the authority of federal courts 

to determine liability or to impose 

remedies through factual considerations 

that differ from, or are contrary to, the 

explicit grants of authority in section 

113(b) and section 113(e). Accordingly, 

pursuant to section 110(k) and section 

110(l), the EPA cannot approve any 

such affirmative defense provision in a 

SIP. If such an affirmative defense 

provision is included in an existing SIP, 

the EPA has authority under section 

110(k)(5) to require a state to remove 

that provision. 

States have great discretion in how to 

devise SIP provisions, but they do not 

have discretion to create provisions that 

contradict fundamental legal 

requirements of the CAA. The 

jurisdiction of federal courts to 

determine liability and to impose 

statutory remedies for violations of SIP 

emission limitations is one such 

fundamental requirement. The court in 

the recent NRDC v. EPA decision did 

not remand the regulation to the EPA for 

better explanation of the legal basis for 

an affirmative defense; the court instead 

vacated the affirmative defense and 

indicated that there could be no valid 

legal basis for such a provision because 

it contradicted fundamental 

requirements of the CAA concerning the 

jurisdiction of courts in judicial 

enforcement of CAA requirements. A 

more detailed explanation of the EPA’s 

basis for determining that affirmative 

defense provisions in SIPs are similarly 

contrary to the requirements of the CAA 

appears in the SNPR.34

Couching an affirmative defense 

provision in terms of merely defining 

whether the emission limitation applies 

and thus whether there is a ‘‘violation,’’ 

as suggested by some commenters, is 

also problematic. If there is no 

‘‘violation’’ when certain criteria or 

conditions for an ‘‘affirmative defense’’ 

are met, then there is in effect no 

emission limitation that applies when 

the criteria or conditions are met; the 

affirmative defense thus operates to 

create an exemption from the emission 

limitation. As explained in the February 

2013 proposal, the CAA requires that 

emission limitations must apply 

continuously and cannot contain 

exemptions, conditional or otherwise. 

This interpretation is consistent with 

the decision in Sierra Club v. Johnson 

concerning the term ‘‘emission 

limitation’’ in section 302(k).35

Characterizing the exemptions as an 

‘‘affirmative defense’’ runs afoul of the 

requirement that emission limitations 

must apply continuously. 

The EPA recognizes that the original 

policy objectives behind states’ 

affirmative defense provisions were 

likely well-intentioned, e.g., to 

encourage better source design, 

maintenance and operation through the 

incentive of being shielded from certain 

statutory remedies for violations under 

certain specified conditions. 

Nevertheless, creation of SIP provisions 

that would operate to limit or eliminate 

the jurisdiction of courts to determine 

liability or to impose remedies provided 

for by statute is inconsistent with the 

enforcement structure of the CAA. The 

EPA emphasizes that the absence of an 

affirmative defense provision in a SIP, 

whether as a freestanding generally 

applicable provision or as a specific 

component of a particular emission 

limitation, does not mean that all 

exceedances of SIP emission limitations 

will automatically be subject to 

enforcement or automatically be subject 

to imposition of particular remedies. 

Pursuant to the CAA, all parties with 

authority to bring an enforcement action 

to enforce SIP provisions (i.e., the state, 

the EPA or any parties who qualify 

under the citizen suit provision of 

section 304) have enforcement 

discretion that they may exercise as they 

deem appropriate in any given 

circumstances. For example, if the event 

that causes excess emissions is an actual 

malfunction that occurred despite 

reasonable care by the source operator 

to avoid malfunctions, then each of 

these parties may decide that no 

enforcement action is warranted. In the 

event that any party decides that an 

enforcement action is warranted, then it 

has enforcement discretion with respect 

to what remedies to seek from the court 

for the violation (e.g., injunctive relief, 

compliance order, monetary penalties or 

all of the above), as well as the type of 

injunctive relief and/or amount of 

monetary penalties sought.36 Further, 

courts have the discretion under section 

113 to decline to impose penalties or 

injunctive relief in appropriate cases as 

explained below. 

Similarly, the absence of an 

affirmative defense provision in a SIP 

does not alter the legal rights of sources 

under the CAA. In the event of an 

enforcement action for an exceedance of 

a SIP emission limit, a source can elect 

to assert any common law or statutory 

defenses that it determines is supported, 

based upon the facts and circumstances 

surrounding the alleged violation. 

Under section 113(b), courts have 

explicit authority to impose injunctive 

relief, issue compliance orders, assess 

monetary penalties or fees and impose 

any other appropriate relief. Under 

section 113(e), courts are required to 

consider the enumerated statutory 

factors when assessing monetary 

penalties, including ‘‘such other factors 

as justice may require.’’ For example, if 

the exceedance of the SIP emission 

limitation occurs due to a malfunction, 

that exceedance is a violation of the 

applicable emission limitation, but the 

source retains the ability to defend itself 

in an enforcement action and to oppose 

the imposition of particular remedies or 

to seek the reduction or elimination of 

monetary penalties, based on the 

specific facts and circumstances of the 

event. Thus, elimination of a SIP 

affirmative defense provision that 

purported to take away the statutory 

jurisdiction of the court to exercise its 

authority to impose remedies does not 

disarm sources in potential enforcement 

actions. Sources retain all of the 

equitable arguments they could 

previously have made under an 

affirmative defense provision; they must 

simply make such arguments to the 

reviewing court as envisioned by 

Congress in section 113(b) and section 

113(e). Congress vested the courts with 

the authority to judge how best to weigh 

the evidence in an enforcement action 

and determine appropriate remedies. 

Removal of such impermissible SIP 

affirmative defense provisions is 

necessary to preserve the enforcement 

structure of the CAA, to preserve the 

jurisdiction of courts to adjudicate 

questions of liability and remedies in 

judicial enforcement actions and to 

preserve the potential for enforcement 

by states, the EPA and other parties 

under the citizen suit provision as an 

effective deterrent to violations. In turn, 

this deterrent encourages sources to be 

properly designed, maintained and 

operated and, in the event of violation 

of SIP emission limitations, to take 

appropriate action to mitigate the 

impacts of the violation. In this way, as 

intended by the existing enforcement 

structure of the CAA, sources can 

mitigate the potential for enforcement 

actions against them and the remedies 

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37The NESHAPs are found in 40 CFR part 61 and 

40 CFR part 63. The NESHAPs promulgated after 

the 1990 CAA Amendments are found in 40 CFR 

part 63. These standards require application of 

technology-based emissions standards referred to as 

Maximum Achievable Control Technology (MACT). 

Consequently, these post-1990 NESHAPs are also 

referred to as MACT standards. 

38See 79 FR 55929–30; 55931–34. 

39SNPR, 79 FR 55919 at 55932. 

that courts may impose upon them in 

such enforcement actions, based upon 

the facts and circumstances of the event. 

D. Response to Comments Concerning 

Affirmative Defense Provisions in SIPs 

The EPA received numerous 

comments concerning the portion of the 

Agency’s proposed response to the 

Petition in the February 2013 proposal 

that addressed the question of whether 

affirmative defense provisions are 

consistent with CAA requirements for 

SIPs. As explained in the SNPR, those 

particular comments submitted on the 

original February 2013 proposal are no 

longer germane, given that the EPA has 

substantially revised its initial proposed 

action on the Petition and its basis, both 

with respect to the overarching issue of 

whether such provisions are valid in 

SIPs under the CAA and with respect to 

specific affirmative defense provisions 

in existing SIPs of particular states. 

Accordingly, as the EPA indicated in 

the SNPR, it considers those particular 

comments on the February 2013 

proposal no longer relevant and has 

determined that it is not necessary to 

respond to them. Concerning affirmative 

defense provisions, the appropriate 

focus of this rulemaking is on the 

comments that addressed the EPA’s 

revised proposal in the SNPR. 

With respect to the revised proposal 

concerning affirmative defense 

provisions in the SNPR, the EPA 

received numerous comments, some 

supportive and some critical of the 

Agency’s proposed action on the 

Petition as revised in the SNPR. Many 

of these comments raised conceptual 

issues and arguments concerning the 

EPA’s revised interpretation of the CAA 

with respect to affirmative defense 

provisions in SIPs in light of the NRDC 

v. EPA decision and concerning the 

EPA’s application of that interpretation 

to specific affirmative defense 

provisions discussed in the SNPR. For 

clarity and ease of discussion, the EPA 

is responding to these overarching 

comments, grouped by issue, in this 

section of this document. 

1. Comments that the EPA is 

misapplying the decision of the D.C. 

Circuit in NRDC v. EPA to SIP 

provisions because the decision only 

applies to the Agency’s own regulations 

pursuant to CAA section 112. 

Comment: Many commenters stated 

that the EPA’s reliance on the D.C. 

Circuit’s decision in NRDC v. EPA is 

misplaced in the SNPR because the 

opinion is limited to disapproval of a 

Maximum Achievable Control 

Technology (MACT) standard’s 

affirmative defense for unavoidable 

malfunctions. The commenters noted 

that the NRDC v. EPA decision did not 

address the issue of affirmative defense 

provisions in SIPs. The commenters 

argued that the D.C. Circuit’s opinion 

only stands for the narrow proposition 

that the EPA may not include an 

affirmative defense to civil penalties in 

a NESHAP 37 under CAA section 112. 

One commenter noted that the EPA, 

in the SNPR, stated that the NRDC v. 

EPA decision did not turn on any factors 

specific to CAA section 112 as support 

for the EPA applying the decision to 

SIPs. However, the commenter argued 

that this fact is not probative because 

neither party raised any argument 

specific to CAA section 112 and it is 

reasonable for a court to limit its 

analysis to the arguments presented 

before it. 

One commenter also noted that the 

EPA is not bound to apply D.C. Circuit 

law to actions reviewable in other 

circuits. 

Response: As explained in the SNPR, 

the EPA believes the reasoning of the 

court in the NRDC v. EPA decision 

indicates that states, like the EPA, have 

no authority in SIP provisions to alter 

the jurisdiction of federal courts to 

assess penalties for violations of CAA 

requirements through affirmative 

defense provisions.38 If states lack 

authority under the CAA to alter the 

jurisdiction of the federal courts through 

affirmative defense provisions in SIPs, 

then the EPA lacks authority to approve 

any such provision in a SIP. 

The EPA agrees with the commenters’ 

statement that the NRDC v. EPA 

decision pertained to a challenge to the 

EPA’s NESHAP regulations issued 

pursuant to CAA section 112 to regulate 

hazardous air pollutants (HAPs) from 

sources that manufacture Portland 

cement. However, the EPA disagrees 

with the commenters’ contention that, 

because the NRDC v. EPA decision was 

based on a NESHAP, it is somehow 

inappropriate for the EPA to rely on the 

reasoning of the D.C. Circuit’s decision 

as a basis for this action. 

As acknowledged by a commenter, 

the EPA explained in the SNPR that the 

NRDC v. EPA decision did not turn on 

the specific provisions of CAA section 

112.39 However, the commenter missed 

the importance of this point. Although 

the NRDC v. EPA decision analyzed the 

legal validity of an affirmative defense 

provision created by the EPA in 

conjunction with a specific NESHAP, 

the court based its decision upon the 

provisions of sections 113 and 304. 

Sections 113 and 304 pertain to 

enforcement of the CAA requirements 

more broadly, including to enforcement 

of SIP requirements. The court 

addressed section 112 and not sections 

germane specifically to SIPs, as only 

that section was before it. The EPA has 

applied the NRDC court’s analysis to 

sections 113 and 304 with respect to 

SIPs and has concluded that the NRDC 

court’s analysis is the better reading of 

the statutory provisions. 

The affirmative defense provision in 

the Portland Cement NESHAP required 

the source to prove, by a preponderance 

of the evidence in an enforcement 

proceeding, that the source met specific 

criteria concerning the nature of the 

event. These specific criteria required to 

establish the affirmative defense in the 

Portland Cement NESHAP are 

functionally the same as the criteria that 

the EPA previously recommended to 

states for SIP provisions in the 1999 

SSM Guidance and that the EPA 

repeated in the February 2013 proposal 

document. Accordingly, the EPA 

believes that the opinion of the court in 

NRDC v. EPA has significant impacts on 

the Agency’s SSM Policy with respect to 

affirmative defense provisions. The 

reasoning by the NRDC court, as 

logically extended to SIP provisions, 

indicates that neither states nor the EPA 

have authority to alter either the rights 

of other parties to seek relief or the 

jurisdiction of federal courts to impose 

relief for violations of CAA 

requirements in SIPs. The EPA believes 

that the court’s decision in NRDC v. 

EPA compelled the Agency to 

reevaluate its interpretation of the CAA 

as described in the SNPR. 

The EPA also disagrees with 

commenters who suggested that a 

decision of the D.C. Circuit should have 

no bearing on actions that affect states 

in other circuit courts. The CAA vests 

authority with the D.C. Circuit to review 

nationally applicable regulations and 

any action of nationwide scope or effect. 

Accordingly, any decision of the D.C. 

Circuit in conducting such review is 

binding nationwide with respect to the 

action under review, and the D.C. 

Circuit’s reasoning is also binding with 

respect to review of future EPA actions 

raising the same issues that will be 

subject to review within that Circuit. 

Given that the EPA has determined that 

this action has nationwide scope and 

effect, it is subject to exclusive review 

in the D.C. Circuit, so the EPA believes 

it is appropriate to apply the reasoning 

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40CAA section 307(b)(1). 

41 749 F.3d 1055, 1064, n.2. 42 551 F.3d 1019 (D.C. Cir. 2008). 

of the NRDC court, which interprets 

CAA sections 113 and 304, to determine 

the legality of affirmative defense 

provisions in this national action.40

2. Comments that the EPA is 

misapplying the decision of the D.C. 

Circuit in NRDC v. EPA to SIP 

provisions because the court did not 

address the legality of affirmative 

defense provisions in SIPs. 

Comment: Many commenters alleged 

that the EPA inappropriately relied on 

the D.C. Circuit’s decision in NRDC v. 

EPA in the SNPR because the court 

specifically stated that its decision did 

not address whether affirmative defense 

provisions in SIPs were appropriate. 

The commenters pointed to the second 

footnote in the decision, in which the 

court explicitly stated: ‘‘We do not here 

confront the question whether an 

affirmative defense may be appropriate 

in a State Implementation Plan.’’ 41

Accordingly, the commenters argued 

that the NRDC v. EPA decision is ‘‘nonbinding’’ with respect to SIP provisions. 

Response: The EPA disagrees that the 

footnote relied upon by commenters 

renders application of the legal 

interpretation of the NRDC court to SIP 

provisions improper. The EPA 

specifically acknowledged and 

discussed the footnote in the NRDC v. 

EPA decision in the SNPR. The EPA 

explained its view of the significance of 

the footnote: ‘‘footnote 2 in the opinion 

does not signify that the court intended 

to take any position with respect to the 

application of its interpretation of the 

CAA to SIP provisions, let alone to 

suggest that its interpretation would not 

apply more broadly.’’ As discussed in 

the SNPR in detail, the EPA believes the 

logic of the court’s decision in NRDC v. 

EPA regarding the interpretation of 

sections 113 and 304 concerning 

affirmative defenses does extend to SIP 

provisions. 

3. Comment that the EPA is 

inappropriately relying on the NRDC v. 

EPA decision because the DC Circuit’s 

decision was decided in error. 

Comment: One commenter alleged 

that the EPA’s reliance on the NRDC v. 

EPA decision is misplaced because the 

court in that decision mistakenly relied 

on section 304(a) when holding that the 

EPA cannot restrict the jurisdiction of 

the courts with affirmative defense 

provisions. The commenter alleged that 

Congress did not intend to give the 

judiciary ‘‘fully-unfettered discretion’’ 

in section 304(a) because such a reading 

cannot be squared with section 304(b), 

which provides that ‘‘[n]o action can be 

commenced . . . if the Administrator or 

State has commenced and is diligently 

prosecuting a civil action in a court of 

the United States.’’ 

Response: The EPA does not agree 

with the commenter’s premise that the 

NRDC court erred by not considering 

section 304(b) as well as section 304(a). 

As the court correctly reasoned, section 

304(a) authorizes any person to bring an 

enforcement action for violations of 

emission limitations. Section 304(f) 

defines the term ‘‘emission limitation’’ 

for this purpose very broadly. Section 

304(b) does not alter the rights of any 

person who has given proper notice to 

bring such an action under section 

304(a), unless the EPA or the state is 

diligently prosecuting a civil action to 

require compliance. The fact that 

section 304(b) limits the ability of any 

person to bring an enforcement action 

(as opposed to intervening in such 

action) if the EPA or the state is 

pursuing enforcement has no bearing 

upon whether the EPA or a state could 

seek to alter or eliminate the jurisdiction 

of the courts to determine liability or to 

impose remedies for violations of SIP 

emission limitations in judicial 

enforcement. The EPA also does not 

believe that this rulemaking is the 

appropriate forum in which to challenge 

the court’s decision. 

4. Comments that the court’s 

reasoning in the NRDC v. EPA decision 

does not apply to affirmative defenses in 

SIP provisions because if a source 

qualifies for an affirmative defense, then 

there has been no violation. 

Comment: Several commenters stated 

that the D.C. Circuit’s analysis in the 

NRDC v. EPA opinion is based on 

statutory language that indicates 

Congress intended the courts, not the 

EPA, to decide what constitutes an 

appropriate penalty once a violation has 

occurred. The commenters argued that if 

a SIP provision contains an affirmative 

defense, and if a source meets the 

requirements to qualify for that 

affirmative defense, then there is no 

violation of the SIP requirements. One 

commenter contended that if there is no 

violation, then the courts have no 

jurisdiction to award any remedies and 

thus there can be no concern that the 

affirmative defense provision alters or 

eliminates the jurisdiction of the courts. 

Another commenter argued that 

affirmative defense provisions in the 

context of a SIP can be described as 

limitations on the application of an 

emission limitation to the conditions 

under which the emission reduction 

technology can be effectively operated. 

The commenters stated that the NRDC 

court did not address the EPA’s or 

states’ authority to establish 

requirements that determine, in the first 

instance, whether a violation has 

occurred. 

Response: The EPA disagrees with the 

commenters’ arguments that affirmative 

defense provisions are appropriate in 

SIPs if they merely define what 

constitutes a violation. As explained in 

detail in the SNPR, the EPA believes 

that SIP provisions with affirmative 

defenses that operate to limit or 

eliminate the jurisdiction of the courts 

to determine liability and to impose 

remedies are not consistent with CAA 

requirements. Under the commenters’ 

theory, such provisions would not 

improperly impinge on the jurisdiction 

of the courts to impose remedies for 

violations by redefining what 

constitutes a ‘‘violation.’’ 

First, the EPA does not agree that all 

affirmative defense provisions in the 

SIPs at issue in this action are 

constructed in this way. Some, 

including those that the EPA previously 

approved as consistent with the 

Agency’s 1999 SSM Guidance, 

explicitly provide that the excess 

emissions that occur are still violations, 

but a source could be excused from 

monetary penalties if the source met the 

criteria for the affirmative defense. 

Under the EPA’s prior interpretation of 

the CAA, the legal basis for any 

affirmative defense started with the fact 

that the excess emissions still 

constituted a violation and injunctive 

relief would still be available as 

appropriate. As explained in the SNPR 

and this document, the EPA no longer 

interprets the CAA to allow even 

narrowly drawn affirmative defense 

provisions in SIPs, let alone those 

advocated by the commenters that 

would provide a complete bar to any 

type of judicial remedy provided for in 

section 113(b). 

Second, even if a specific affirmative 

defense provision were worded in the 

way that the commenters’ claim, then 

that provision would be deficient for 

other reasons. Under the commenters’ 

premise, if certain criteria are met then 

there is no ‘‘violation’’ for excess 

emissions during SSM events. The 

EPA’s view is that this formulation of an 

affirmative defense in effect means that 

there is no emission limitation that 

applies when the criteria are met, i.e., 

the affirmative defense operates to 

create a conditional exemption for 

emissions from the source during SSM 

events. Such an approach would be 

inconsistent with the decision in Sierra 

Club v. Johnson concerning the term 

‘‘emission limitation’’ in section 

302(k).42 Exemptions for emissions 

during SSM events, whether automatic 

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43See, e.g., Train v. NRDC, 421 U.S. 60, 79 (1975). 

or conditional based upon the criteria of 

an affirmative defense, are inconsistent 

with the requirement for continuous 

controls on sources. 

Finally, the EPA believes that the 

commenters’ premise that an affirmative 

defense provision merely defines what a 

violation is also runs afoul of other 

fundamental requirements for SIP 

provisions. To the extent any such 

provision would allow state personnel 

to decide, unilaterally, whether excess 

emissions during an SSM event 

constitute a violation (e.g., through 

application of an ‘‘affirmative defense’’), 

this would interfere with the ability of 

the EPA or other parties to enforce for 

violations of SIP requirements. The EPA 

interprets the CAA to prohibit SIP 

provisions that impose the enforcement 

discretion decisions of a state on other 

parties. This includes provisions that 

are structured or styled as an affirmative 

defense but in effect allow ad hoc 

conditional exemptions from emission 

limitations and preclude enforcement 

for excess emission during SSM events. 

5. Comments that the NRDC v. EPA 

decision, which concerned an emission 

limitation under section 112, does not 

apply in the context of section 110, 

because section 110 affords states 

flexibility in how to develop emission 

limitations in SIP provisions. 

Comment: Commenters argued that 

the EPA’s extension of the logic of the 

NRDC v. EPA decision to affirmative 

defenses in SIP provisions is incorrect 

because the EPA’s NESHAP standards 

are governed by section 112, whereas 

SIP provisions are governed by section 

110. Under the latter, commenters 

asserted, states are afforded wide 

discretion in how to develop emission 

limitations.43 The commenters stated 

that section 110 governs the 

development of state SIPs to satisfy the 

NAAQS, which may address many 

different types of sources, major and 

minor, industrial and non-industrial, 

small and large, and old and new. The 

commenters alleged that states have 

independent authority to include 

affirmative defenses in SIP provisions, 

so long as the provisions are otherwise 

approvable, because the state has met its 

section 110 planning responsibilities 

and the SIP is enforceable. 

Response: The EPA agrees with the 

commenters that section 110 governs 

the development of state SIPs and that 

states are accorded great discretion in 

determining how to meet CAA 

requirements in SIPs. However, as 

explained in the February 2013 

proposal, the SNPR and sections IV.D.13 

and V.D.2 of this document, states are 

obligated to develop SIP provisions that 

meet fundamental CAA requirements. 

The EPA has the responsibility to 

review SIP provisions developed by 

states to ensure that they in fact meet 

fundamental CAA requirements. As 

explained in the SNPR and this 

document, the EPA no longer believes 

that affirmative defense provisions meet 

CAA requirements. Based on the logic of 

the court in the NRDC v. EPA decision, 

the better reading of the statute is that 

such provisions have the effect of 

limiting or eliminating the statutory 

jurisdiction of the courts to determine 

liability or impose remedies. 

The EPA also disagrees with the 

commenters’ arguments that ‘‘emission 

limitations’’ under section 112 and 

section 110 are not comparable with 

respect to meeting fundamental CAA 

requirements. As an initial matter, both 

section 112 MACT standards and 

section 110 SIP emission limitations can 

be composed of various elements that 

include, among other things, numerical 

emission limitations, work practice 

standards and monitoring and 

recordkeeping requirements. However, 

whether there are other components that 

are part of the emission limitation to 

make it apply continuously is not 

relevant for purposes of determining 

whether an affirmative defense 

provision that provides relief from 

penalties for a violation of either a 

MACT standard under section 112 or a 

SIP provision under section 110 is 

consistent with the CAA. 

As explained in the SNPR, the EPA 

has revised its interpretation of the CAA 

with respect to affirmative defense 

provisions in SIPs, based upon the logic 

of the court in the NRDC v. EPA 

decision. Section 304(a) sets forth the 

basis for a civil enforcement action and 

section 113(a)(1) does the same for 

administrative or judicial enforcement 

actions brought by the EPA. Sections 

113(b) and 304(a) provide the federal 

district courts with jurisdiction to hear 

civil enforcement cases. Furthermore, 

section 113(e) confers jurisdiction on 

the district court in a civil enforcement 

case to determine the amount of penalty 

to be assessed where a violation has 

been established. 

6. Comments that the NRDC v. EPA 

decision does not pertain to the 

appropriateness of affirmative defense 

provisions in the context of state 

administrative or civil enforcement. 

Comment: Some commenters noted 

that the NRDC court only reviewed 

whether affirmative defense provisions 

could be used to limit CAA citizen suit 

remedies in judicial enforcement 

actions. The commenters alleged that 

the use of an affirmative defense in a 

citizen suit under federal regulations 

does not dictate the appropriateness of 

similar provisions in the context of state 

administrative or civil actions. 

According to the commenters, a SIP 

represents an air quality management 

system and the state administrative 

process is distinct from federal citizen 

suits. Similarly, the commenters 

believed that SIP emission limitations 

are enforceable via state regulation 

penalty provisions that are separate 

from the CAA civil penalty provisions. 

Because the NRDC court spoke only to 

the appropriateness of affirmative 

defense provisions in the context of 

federal citizen suits, the commenters 

asserted, the decision is inapplicable in 

the EPA’s SIP call action. 

Response: The EPA agrees that the 

court in the NRDC v. EPA decision did 

not speak directly to the issue of 

whether states can establish affirmative 

defenses to be used by sources 

exclusively in state administrative 

enforcement actions or in judicial 

enforcement in state courts. The 

reasoning of the NRDC court indicates 

only that such provisions would be 

inconsistent with the CAA in the 

context of judicial enforcement of SIP 

requirements in federal court. Indeed, 

the NRDC court suggested that if the 

EPA elected to consider factors 

comparable to the affirmative defense 

criteria in its own administrative 

enforcement proceedings, it may be able 

to do so. The implication of the 

commenters, however, is that the EPA 

should interpret the CAA to allow 

affirmative defenses in SIP provisions, 

so long as it is unequivocally clear that 

sources cannot assert the affirmative 

defenses in federal court enforcement 

actions and cannot assert the affirmative 

defenses in enforcement actions brought 

by any party other than the state. 

The EPA of course agrees that states 

can exercise their own enforcement 

discretion and elect not to bring an 

enforcement action or seek certain 

remedies, using criteria analogous to an 

affirmative defense. It does not follow, 

however, that states can impose this 

enforcement discretion on other parties 

by adopting SIP provisions that would 

apply in federal judicial enforcement, or 

in enforcement brought by the EPA or 

other parties. To the extent that the state 

developed an ‘‘enforcement discretion’’ 

type provision that applied only in its 

own administrative enforcement actions 

or only with respect to enforcement 

actions brought by the state in state 

courts, such a provision may be 

appropriate. This authority is not 

unlimited because the state could not 

create affirmative defense provision that 

in effect undermines its legal authority 

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33856 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

44 714 F.3d 841 (5th Cir. 2013). 

45 Id. at 853. The EPA notes that the Fifth Circuit 

also upheld the Agency’s disapproval of the 

affirmative defense provisions that the state sought 

to create for ‘‘planned’’ events. 

46See, e.g., New Hampshire v. Maine, 532 U.S. 

742, 749 (2001). 

47See Montana Sulphur & Chemical Co. v. EPA, 

666 F.3d 1174 (9th Cir. 2012); Arizona Public 

Service Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009). 

48 714 F.3d at 852. 

49 Id. at 853. 

50See, e.g., Nat’l Cable & Telecomms. Ass’n v. 

Brand X Internet Servs., 545 U.S. 967 (2005) and 

FCC v. Fox Television Stations, Inc., 556 U.S. 502 

(2009). The Agency also notes that commenters’ 

position, that the EPA cannot now change its 

interpretation of the CAA, is at odds with the SIP 

call provision established by Congress in section 

110(k)(5). That provision provides the EPA with 

authority to issue a SIP call ‘‘whenever’’ it 

determines that an existing SIP is substantially 

inadequate to meet CAA requirements. In other 

words, section 110(k)(5) expressly envisions cases 

where the EPA has previously approved a SIP 

provision as meeting CAA requirements, and one 

that the EPA may have even defended in court, but 

later determines that the provision no longer meets 

CAA requirements, and section 110(k)(5) gives the 

EPA authority to issue a SIP call in these situations. 

to enforce SIP requirements. Section 

110(a)(2)(C) requires states to have a 

program that provides for enforcement 

of the state’s SIP, and enforcement 

discretion provisions that unreasonably 

limit the state’s own authority to enforce 

the requirements of the SIP would be 

inconsistent with section 110(a)(2)(C). 

The EPA’s obligations with respect to 

SIPs include determining whether states 

have adequate enforcement authority. 

7. Comments that the EPA’s proposal 

is inappropriate because it runs counter 

to previous court decisions, including 

the decision of the U.S. Court of 

Appeals for the Fifth Circuit (Fifth 

Circuit) in Luminant Generation v. EPA. 

Comment: Many commenters on the 

SNPR argued that the decision of the 

Fifth Circuit in Luminant Generation v. 

EPA precludes the EPA’s proposed 

action concerning affirmative defenses 

in SIP provisions, in general and with 

respect to the provisions in the Texas 

SIP in particular. The commenters noted 

that the court upheld the EPA’s 

approval of an affirmative defense 

provision for unavoidable excess 

emissions during unplanned SSM 

events in the Texas SIP.44 The 

commenters argued that the Fifth 

Circuit ruled that in approving the 

Texas SIP affirmative defense provision, 

the EPA ‘‘acted neither contrary to law 

nor in excess of its statutory 

authority.’’ 45 According to the 

commenters, the court specifically 

considered and rejected arguments by 

litigants concerning sections 113 and 

304. Some commenters argued that the 

court also considered and ‘‘decisively 

rejected’’ the legal arguments articulated 

by the EPA in the SNPR. The 

commenters alleged that the Luminant 

Generation v. EPA decision 

demonstrates that affirmative defenses 

for malfunctions are permissible in SIP 

provisions. The commenters contended 

that, because the Fifth Circuit in 

Luminant Generation v. EPA 

specifically considered whether an 

affirmative defense provision applicable 

to malfunctions included in a SIP 

violates the CAA, unlike the D.C. Circuit 

in NRDC v. EPA, the EPA should follow 

the Luminant Generation v. EPA 

decision rather than the D.C. Circuit 

decision in NRDC v. EPA. 

Some commenters also pointed out 

that the D.C. Circuit, in the recent NRDC 

v. EPA decision, mentioned and cited 

the Luminant Generation v. EPA 

opinion and did not expressly disagree 

with the Fifth Circuit’s holding. One 

commenter noted that if the NRDC court 

believed that the issue it was deciding 

was the same as the issue decided in 

Luminant Generation v. EPA, the D.C. 

Circuit would have explicitly stated that 

it was declining to follow the Fifth 

Circuit on the issue instead of 

acknowledging that the issue upon 

which the Fifth Circuit ruled was not 

before the D.C. Circuit. 

Several commenters also argued that, 

because the Fifth Circuit previously 

determined in Luminant Generation v. 

EPA that the Texas SIP affirmative 

defense provision at issue in this SIP 

call action is consistent with CAA 

sections 113 and 304, the EPA does not 

have any legal authority under the CAA 

to finalize the action proposed in SNPR. 

Some commenters further stated that the 

EPA lacks authority to disagree with the 

Fifth Circuit’s determination of the law 

as applied to a state within the Fifth 

Circuit’s jurisdiction. These commenters 

believed that if the EPA were to finalize 

the action discussed in the SNPR with 

respect to the affirmative defense for 

malfunctions in the Texas SIP, this 

action would violate the mandate rule. 

Some commenters also alleged that 

courts outside the Fifth Circuit, 

including the D.C. Circuit, will apply 

principles of claim preclusion, or res 

judicata, to give effect to the Fifth 

Circuit’s prior adjudication on the legal 

basis for the affirmative defense in the 

Texas SIP. One commenter claimed that 

the EPA’s ‘‘failure’’ to address how the 

holdings in Luminant Generation v. 

EPA will no longer apply and how the 

EPA is exempt from the court’s mandate 

render the theories presented in the 

SNPR unsupported as a basis for the SIP 

call action. 

Some commenters alleged that the 

EPA is bound by its own prior 

representations before the Fifth Circuit, 

in which it asserted and defended its 

approval of the affirmative defense 

provision for malfunctions in the Texas 

SIP, under the doctrine of judicial 

estoppel.46 Similarly, the commenters 

alleged that under the doctrine of issue 

preclusion, or collateral estoppel, the 

EPA is precluded from re-litigating the 

issues previously considered and 

determined by the Fifth Circuit, 

regardless of where any subsequent 

challenge to this final action is brought. 

Some commenters also cited to other 

circuit court decisions that have upheld 

the EPA’s approvals of affirmative 

defense provisions for malfunctions.47

The commenters alleged that other than 

calling the NRDC v. EPA decision a 

newer decision, the EPA did not explain 

its justification for relying on the NRDC 

v. EPA opinion instead of following the 

three circuit court decisions that are 

directly on point. 

Response: The EPA disagrees with the 

commenters’ arguments concerning the 

application of the court’s decision in 

Luminant Generation v. EPA to this SIP 

call action. As explained in the SNPR, 

the EPA acknowledges that it has 

previously approved affirmative 

defenses in SIP provisions or, when 

appropriate, promulgated affirmative 

defenses in FIPs. The EPA also 

acknowledged that its approval of an 

affirmative defense provision applicable 

to ‘‘unplanned events’’ (i.e., 

malfunctions) in a Texas SIP submission 

was upheld in 2012 by the U.S. Court 

of Appeals for the Fifth Circuit. In that 

litigation, the EPA argued that sections 

113 and 304 do not preclude 

appropriately drawn affirmative defense 

provisions for malfunctions in SIPs. 

Importantly, in upholding the EPA’s 

approval of the affirmative defense, the 

Fifth Circuit determined that Chevron 

step 1 was not applicable to this case 

and ‘‘turn[ed] to step two of Chevron’’ 48

in holding that the Agency’s 

interpretation of the CAA at that time 

was a ‘‘permissible interpretation of 

section [113], warranting deference.’’ 49

The Fifth Circuit did not determine that 

the EPA’s interpretation at the time of 

the Luminant Generation v. EPA 

decision was the only or even the best 

permissible interpretation. It is clearly 

within the EPA’s legal authority to now 

revise its interpretation to a different, 

but still permissible, interpretation of 

the statute.50 The EPA has explained at 

length in the SNPR, and elsewhere in 

this final rulemaking, its reasons for 

changing its previous interpretation of 

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51See Montana Sulphur & Chemical Co. v. EPA, 

666 F.3d 1174 (9th Cir. 2012); Arizona Public 

Service Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009). 

the CAA to permit narrowly drawn 

affirmative defenses applicable only to 

penalties and has explained why it now 

believes that the reasoning of the court 

in the NRDC v. EPA decision is the 

better reading of the CAA. 

Some commenters allege that the Fifth 

Circuit considered and rejected the legal 

arguments articulated by the EPA in the 

SNPR to support the Agency’s new 

interpretation that affirmative defenses 

in SIP provisions are inconsistent with 

the Act. The EPA disagrees with 

commenters’ assertions. As explained 

above, in the Luminant Generation v. 

EPA decision the Fifth Circuit analyzed 

the EPA’s former interpretation of the 

CAA under step 2 of Chevron and found 

that the Agency’s position was 

reasonable. The Fifth Circuit held that 

the CAA did not dictate the outcome 

put forth by environmental petitioners 

in the Luminant Generation v. EPA case; 

the court did not hold that the Agency 

could not reasonably interpret the CAA 

provisions at issue to come to the new 

position articulated in the SNPR and 

other sections of this document. In fact, 

the Fifth Circuit upheld the EPA’s 

reading of the statute to preclude 

affirmative defense provisions for 

planned events in the same decision as 

a reasonable interpretation of the CAA. 

In the SNPR, the EPA also addressed 

the discussion in the NRDC v. EPA 

decision that referred to the earlier 

Luminant Generation v. EPA decision 

and explained its view that the court in 

NRDC v. EPA did not suggest that its 

interpretation of the CAA would not 

apply more broadly to SIP provisions. 

Rather, the court simply declined to 

address that issue. As to commenters’ 

allegation that the EPA should follow 

the Luminant court’s reasoning because 

that court addressed the specific issue of 

affirmative defenses in SIP provisions, 

the EPA has explained in detail in the 

SNPR and section IV.D.1 of this 

document why it now believes that the 

NRDC court’s reasoning is applicable 

here and why it believes this is the 

better interpretation of sections 113 and 

304. 

The EPA acknowledges that other 

circuit courts have also upheld 

affirmative defense provisions 

promulgated by the Agency in FIPs.51

Those decisions were also based upon 

an interpretation of the CAA that the 

Agency no longer holds. The EPA 

further notes that the affirmative 

defense provisions at issue in the other 

court decisions cited by the commenters 

are not at issue in this action. However, 

the EPA may elect to address these 

provisions in a separate rulemaking. 

The EPA also disagrees with 

commenters’ allegations that this final 

SIP call action violates the mandate 

rule. The mandate rule generally 

governs how a lower court handles a 

higher court’s decision on remand. The 

Agency believes that the mandate rule is 

inapplicable here. Similarly, the Agency 

believes that the principles of res 

judicata, judicial estoppel and collateral 

estoppel (issue preclusion) raised by 

commenters are all inapplicable in this 

situation. For reasons the EPA has fully 

explained in this rulemaking, the 

Agency is adopting a revised 

interpretation of the CAA. This 

necessarily changes the issues or claims 

that may be raised in any future 

litigation concerning the Agency’s 

action here or subsequent Agency 

actions taken pursuant to this changed 

interpretation. As noted previously, the 

Agency’s ability to change its 

interpretation of the statute is well 

established, even if courts have 

previously upheld the Agency’s former 

interpretation as reasonable under step 

2 of the Chevron analysis. 

8. Comments that affirmative defense 

provisions are needed or appropriate 

because sources cannot control 

malfunctions or the excess emissions 

that occur during them. 

Comment: Several commenters 

claimed that by requiring states to 

remove affirmative defense provisions, 

the EPA will create a situation where 

sources have no potential relief from 

liability for exceedances resulting from 

excess emissions during malfunctions. 

The commenters argued that this will 

effectively expose sources to penalties 

for emissions that are not within the 

sources’ control. The commenters 

alleged that the EPA’s proposal is 

unreasonable because it fails to consider 

the infeasibility of controlling emissions 

during malfunction periods. The 

commenters believe that because 

malfunction events are uncontrollable 

by definition, removing affirmative 

defense provisions applicable to 

malfunctions will not reduce emissions 

but instead will only expose facilities to 

potential enforcement for uncontrollable 

exceedances. 

Response: The EPA disagrees that 

without affirmative defense provisions, 

sources will have no ‘‘relief’’ from 

liability for violations during actual 

malfunctions. To the extent that sources 

have an actual malfunction, sources 

retain the ability to raise this fact in the 

event of an enforcement action related 

to the malfunction. Congress has already 

provided courts with explicit 

jurisdiction and authority to determined 

liability and to impose appropriate 

remedies, based on the facts and 

circumstances surrounding the 

violation. To the extent that there are 

extenuating circumstances that justify 

not holding a source responsible for a 

violation or not imposing particular 

remedies as a result of a violation, 

sources retain the ability to raise these 

facts to the court. In addition, the 

absence of an affirmative defense 

provision in the SIP does not impede a 

violating source from taking appropriate 

actions to minimize emissions during a 

malfunction, so as to mitigate the 

potential remedies that a court may 

impose as a result of the violation. 

Furthermore, the EPA disagrees with 

the commenters’ premise that states 

have authority to create affirmative 

defense provisions in SIPs because some 

sources may otherwise be subject to 

enforcement actions for emissions 

during malfunctions. As explained in 

the SNPR in detail, the EPA has 

concluded that there is no legal basis for 

affirmative defenses in SIP provisions, 

including affirmative defenses 

applicable to malfunction events. 

Because such affirmative defense 

provisions purport to alter or eliminate 

the statutory jurisdiction of courts to 

determine liability and to assess 

appropriate remedies for violations of 

SIP requirements, these provisions are 

not permissible. 

9. Comments that there will not be 

any reduction in overall emissions from 

the EPA’s SIP call action because states 

will need to revise emission limitations 

to allow more emissions if affirmative 

defense provisions are removed from 

the SIPs. 

Comment: Commenters on the SNPR 

questioned whether the elimination of 

affirmative defenses in SIP provisions 

would result in any reductions of 

emissions from sources. Several 

commenters asserted that affirmative 

defense provisions allow states to lower 

emission limitations overall. Thus, the 

commenters claimed that elimination of 

the affirmative defense provisions 

would obligate states to raise affected 

emission limitations so that sources 

could comply with them continuously. 

Another commenter criticized the EPA’s 

approach as requiring each state to 

reframe the existing episodic emissions 

provisions of its SIP as alternative 

emission limitations rather than as more 

limited and conditional affirmative 

defenses. This commenter asserted that 

structuring the provisions as an 

affirmative defense allows a state to 

impose more stringent numerical 

limitations without penalizing sources 

for unavoidable emissions when those 

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52The EPA notes that the actual affirmative 

defense provisions at issue in this action are very 

dissimilar; some are based on the EPA’s 

interpretation of the CAA in the 1999 SSM 

Guidance, but the majority of the provisions are 

relatively unique from state to state. Accordingly, 

the EPA disagrees with the commenters’ basic 

premise that the affirmative defense provisions are 

consistent from state to state. 

emissions do not compromise the 

underlying air quality objectives. 

Several commenters also disagreed 

with the EPA’s belief that removal of 

affirmative defense provisions would 

reduce emissions. One commenter 

noted that some affirmative defense 

provisions require a source to evaluate 

impacts on NAAQS compliance as part 

of asserting the affirmative defense; the 

commenter contended that forgoing 

these provisions would thus reduce the 

incentive for owners and operators to 

minimize emissions during 

malfunctions so that they could qualify 

for the affirmative defense. Several 

commenters noted that many sources 

immediately investigate excess 

emissions events and implement 

measures intended to prevent 

recurrence. Nevertheless, those 

commenters asserted that because 

malfunction events are uncontrollable 

by definition, removing an affirmative 

defense applicable to malfunctions will 

not reduce emissions. Commenters also 

argued that an assumption that 

elimination of the affirmative defense 

provisions will reduce emissions is 

flawed because, given the stringent 

applicability criteria for a ‘‘narrowly 

drawn’’ affirmative defense, a facility 

has no assurance that an affirmative 

defense will apply to any particular 

malfunction event and that even if the 

affirmative defense was available, it 

would not shield the facility from 

compliance orders or other injunctive 

relief (or from criminal prosecution). 

Response: The commenters’ 

arguments concerning whether 

elimination of affirmative defense 

provisions will or will not reduce 

emissions during SSM events and will 

or will not reduce incentives for sources 

to minimize emissions during SSM 

events do not address the legal basis for 

any such affirmative defense provisions. 

As the commenters correctly observed, 

the EPA’s 1999 SSM Guidance reflected 

the Agency’s prior interpretation of the 

CAA to permit such affirmative defense 

provisions, so long as they were 

sufficiently narrowly drawn, applied 

only to monetary penalties and required 

the source to prove that it met the 

applicable criteria to the trier of fact in 

an enforcement proceeding. The EPA’s 

arguments for why appropriate 

affirmative defense provisions could be 

consistent with CAA requirements 

included that they could provide an 

incentive for sources to be properly 

designed, maintained and operated to 

minimize emissions at all times. 

As explained in the SNPR, however, 

the EPA has determined that affirmative 

defenses are impermissible in SIP 

provisions because they operate to alter 

or eliminate the statutory jurisdiction of 

the courts. The EPA has reached this 

conclusion in light of the court’s 

decision in NRDC v. EPA. Because 

affirmative defense provisions are 

inconsistent with the enforcement 

structure of the CAA, the EPA is making 

the finding that such provisions are 

substantially inadequate to meet legal 

requirements of the CAA. In order to 

make the finding that these provisions 

fail to meet legal requirements of the 

CAA, the EPA is not required to 

determine or estimate emission 

reductions that will or will not result 

from the removal of such provisions 

from the affected SIPs. The EPA believes 

this action is necessary to provide 

environmental protection. However, the 

EPA’s obligation as a legal matter would 

not change even if commenters were 

correct in their view that emissions 

reductions will not result from the 

removal of the impermissible 

affirmative defense provisions. The 

EPA’s interpretation of its authority 

under section 110(k)(5) is discussed in 

detail in section VIII.A of this 

document. 

The EPA agrees that in response to 

this SIP call directing the removal of 

affirmative defense provisions, the 

affected states may elect to revise 

affected SIP emission limitation. In so 

doing, the states may determine that it 

is appropriate to revise the emission 

limitations in other respects, so long as 

they do so consistent with CAA 

requirements. For example, affected 

states may elect to create alternative 

emission limitations that apply to 

sources during startup and shutdown. 

The EPA’s guidance for this approach is 

discussed in detail in VII.B.2 of this 

document. Alternatively, states may 

elect to overhaul an affected SIP 

emission limitation entirely to account 

for the removal of the affirmative 

defense in some other way. However, 

states will need to comply with the 

applicable substantive requirements for 

the type of SIP provision at issue and 

the EPA will review those SIP revisions 

in accordance with the requirements of 

the CAA, including sections 110(k)(3), 

110(l) and 193. 

10. Comments that the elimination of 

affirmative defense provisions will 

result in sources’ facing inconsistent 

treatment by courts or states when 

excess emissions are emitted during 

malfunction events. 

Comment: Commenters claimed that 

the concept and framework for 

affirmative defense provisions are 

consistent from state to state and that by 

removing these provisions, sources will 

be subject to inconsistent treatment of 

excess emissions during SSM in 

different states. The commenters noted 

that the EPA recognized in the February 

2013 proposal and SNPR that states may 

elect to revise their deficient SIP 

provisions differently in response to the 

SIP call and thus the commenters 

expressed concern that the potential 

difference in treatment among states 

will lead to ‘‘inconsistent regulation of 

air pollution across the country.’’ 

Commenters further argued that 

without the consistent regulatory 

framework provided by an affirmative 

defense provision, each court is likely to 

evaluate SSM events differently in the 

context of enforcement actions. The 

commenters suggested that allowing 

each court to consider the facts and 

circumstances of the emission event in 

its penalty evaluation without a 

governing framework could lead to 

inconsistent enforcement throughout 

the country. 

Response: The EPA disagrees that it is 

inappropriate to allow states to 

determine how best to revise their SIPs 

in response to this SIP call, consistent 

with CAA requirements. As discussed 

in this document, and as many 

commenters have also noted, the 

structure of the CAA is based upon 

cooperative federalism. Under this 

structure, Congress gave states broad 

discretion to develop SIP provisions as 

necessary to attain and maintain the 

NAAQS and meet other CAA objectives, 

so long as the SIPs also meet statutory 

requirements. The very nature of the SIP 

program is that similar sources can be 

treated differently in different states, 

because the states have discretion with 

respect to developing their SIP 

provisions consistent with CAA 

requirements. Thus, whether the 

affirmative defense provisions at issue 

in this action added some level of 

‘‘consistent’’ treatment of sources across 

the nation (a statement with which the 

EPA does not agree) is not relevant for 

purposes of this SIP call.52 Rather, for 

the reasons explained in the SNPR and 

in this document, the EPA has 

determined that affirmative defense 

provisions are inconsistent with the 

fundamental legal requirements of the 

CAA. For that reason, the EPA is 

requiring the affected states to revise 

their SIPs to remove the affirmative 

defense provisions identified in this 

action. States have discretion in how 

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53 79 FR 55919 at 55923. 

they revise their SIPs in this context as 

in all other contexts. 

As to the concern that different courts 

might evaluate liability for violations 

during SSM events differently in the 

absence of affirmative defense 

provisions, the EPA notes that this is 

not the relevant question. The potential 

for inconsistent treatment by the courts 

is not a basis for allowing states to retain 

SIP provisions that are inconsistent with 

the legal requirements of the CAA. In 

any event, the EPA disagrees that 

elimination of affirmative defenses in 

SIP provisions make it more likely that 

there would be ‘‘inconsistent 

enforcement’’ because of a lack of a 

‘‘regulatory framework.’’ The 

enforcement structure of the CAA 

embodied in section 113 and section 

304 already provides a structure for 

enforcement of CAA requirements in 

federal courts. For example, the CAA 

already provides uniform criteria for 

courts to apply, based upon the facts 

and circumstances of individual 

enforcement actions. Similar to an 

affirmative defense provision, section 

113(e) already enumerates the factors 

that courts are required to consider in 

determining appropriate penalties for 

violations and thus there is a consistent 

statutory framework. In essence the 

commenters object to the fact that in any 

judicial enforcement case, the court will 

determine liability and remedies based 

on the facts and circumstances of the 

case. However, this is an inherent 

feature of the enforcement structure of 

the CAA, regardless of whether there is 

an affirmative defense provision at 

issue. 

11. Comments that the EPA should 

have acted in a single, comprehensive 

rulemaking rather than issuing the 

supplemental notice of proposed 

rulemaking. 

Comment: Commenters asserted that 

the EPA’s issuance of two separate 

proposals instead of one proposal has 

prevented states and industry from 

knowing the entire proposed regulatory 

action. The commenters claimed that if 

the EPA is going to issue a SIP call to 

states concerning the treatment of 

emissions during SSM events, then it 

should do so in a single comprehensive 

rulemaking. The commenters argued 

this is necessary because states consider 

different options when revising SIP 

provisions and that thereafter states will 

have to work with affected sources to 

revise permits. 

Response: The EPA disagrees with the 

argument that states, industry, 

individuals and other interested parties 

have not had an opportunity to know 

and comment upon the Agency’s entire 

action. The EPA’s February 2013 

proposal was intended to cover a broad 

range of issues related to the correct 

treatment of emissions during SSM 

events in SIP provisions 

comprehensively. Because of an 

intervening court decision that affected 

the substance of the EPA’s initial 

proposed action, it was necessary to 

issue a supplemental proposal. The EPA 

disagrees that the issuance of the SNPR 

adversely affected the ability of 

interested parties to understand the 

Agency’s proposed action, because the 

SNPR only affected one aspect of the 

original proposed action. As the EPA 

explained in the SNPR: ‘‘In this SNPR, 

we are supplementing and revising what 

we earlier proposed as a response to the 

Petitioner’s requests but only to the 

extent the requests narrowly concern 

affirmative defense provisions in the 

SIPs. We are not revising or seeking 

further comment on any other aspects of 

the February 2013 proposed action.’’ 53

As to the commenters’ concern that 

the EPA should take action in a single 

comprehensive rulemaking, the Agency 

is doing so. This SIP call action 

addresses all aspects of the Petition and 

it is based upon both the February 2013 

proposal and the SNPR. As advocated 

by the commenters, the EPA’s objective 

in this SIP call action is to provide 

states with comprehensive and up-todate guidance concerning the correct 

treatment of emissions during SSM 

events in SIP provisions, consistent 

with CAA requirements as interpreted 

by recent court decisions. The EPA 

agrees with the commenters that 

providing states comprehensive 

guidance in this rulemaking is 

important to assist states in revising 

their SIP provisions consistent with 

CAA requirements. Any necessary 

changes to permits to reflect the removal 

of affirmative defense provisions from 

the underlying SIP will occur later, after 

the SIP provisions have been revised. 

12. Comments that the EPA has not 

proven that the existence of affirmative 

defense provisions in SIPs is resulting 

in specific environmental impacts or 

interference with attainment and 

maintenance of the NAAQS. 

Comment: Several commenters argued 

that the EPA has failed to demonstrate 

that the affirmative defense provisions 

at issue in this action have contributed 

to a specific NAAQS violation or 

otherwise caused harm to public health 

or the environment. The commenters 

contend that, because of the narrow 

scope of affirmative defense provisions, 

it is unlikely that their existence would 

cause or contribute to any violations of 

the NAAQS. Some commenters further 

noted that some states have experienced 

improved ambient air quality 

conditions, despite having SIPs in place 

with affirmative defense provisions at 

issue in this action. 

The commenters alleged that without 

providing specific record-based 

evidence of the impacts caused by 

affirmative defense provisions, it is 

unreasonable for the EPA to determine 

that existing provisions are substantially 

inadequate or otherwise not in 

compliance with the CAA. Some 

commenters further alleged that the EPA 

has no authority to issue a SIP call 

without ‘‘find[ing] that the applicable 

implementation plan . . . is 

substantially inadequate to attain or 

maintain the relevant [NAAQS].’’ 

Response: As explained in the 

February 2013 proposal, the SNPR and 

this document, the EPA does not 

interpret its authority under section 

110(k)(5) to require proof that a 

deficient SIP provision caused a specific 

violation of the NAAQS at a particular 

monitor on a particular date, or that a 

deficient SIP provision undermined a 

specific enforcement action. Section 

110(k)(5) explicitly authorizes the EPA 

to make a finding that a SIP provision 

is substantially inadequate to ‘‘comply 

with any requirement of’’ the CAA, in 

addition to the authority to do so where 

a SIP is inadequate to attain and 

maintain the NAAQS or to address 

interstate transport. In light of the 

court’s decision in NRDC v. EPA, the 

EPA has reexamined the question of 

whether affirmative defenses are 

consistent with CAA requirements for 

SIP provisions. As explained in this 

action, the EPA has concluded that such 

provisions are inconsistent with the 

requirements of section 113 and section 

304. Accordingly, the EPA has the 

authority to issue SIP calls to states, 

requiring that they revise their SIPs to 

eliminate the specific affirmative 

defense provisions identified in this 

action. Issues related to the EPA’s 

authority under section 110(k)(5) are 

discussed in more detail in section 

VIII.A of this document. 

13. Comments that the EPA is 

violating the principles of cooperative 

federalism through this action. 

Comment: Several commenters stated 

that the EPA’s action with respect to 

affirmative defenses in SIP provisions is 

inconsistent with the system of 

cooperative federalism contemplated by 

the CAA. The commenters alleged that 

this action is at odds with established 

CAA and judicial precedents indicating 

that states have broad discretion in 

developing SIP provisions, with the 

EPA’s role being limited. Some 

commenters further alleged that the 

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54See, e.g., ‘‘Oil and Natural Gas Sector: 

Reconsideration of Additional Provisions of New 

Source Performance Standards; Proposed rule,’’ 79 

FR 41752 at 41762–63 (July 17, 2014). 

55See February 2013 proposal, 78 FR 12459 at 

12482 (February 22, 2013). 

EPA’s action has the effect of unlawfully 

directing states to impose a particular 

control measure. The commenters 

argued that the EPA must defer to a 

state’s choices on how to meet the 

relevant NAAQS, through whatever SIP 

provisions the state elects to develop. 

One commenter argued that states have 

independent authority to include 

affirmative defense policies in their 

SIPs, even if the DC Circuit has held 

that the EPA may not include 

affirmative defense provisions in federal 

regulations. 

Response: The EPA agrees that the 

CAA is based upon the principle of 

cooperative federalism but disagrees 

with the commenters’ characterization 

of the respective authorities and 

responsibilities of states and the 

Agency. As explained in the February 

2013 proposal, and in section V.D.2 of 

this document, the EPA has the 

authority and the obligation to ensure 

that SIP provisions meet fundamental 

CAA requirements, when initially 

submitted and later. In the case of 

affirmative defenses in SIP provisions, 

the EPA has determined that such 

provisions do not comply with CAA 

requirements because they operate to 

alter or eliminate the statutory 

jurisdiction of the courts, contrary to 

section 113 and section 304. The states 

have broad discretion in how to create 

SIP provisions but must do so consistent 

with CAA requirements. By issuing this 

SIP call, the EPA is not in any way 

compelling states to impose any specific 

SIP control measure on any specific 

source but merely requiring states to 

revise their SIP provisions to make them 

consistent with CAA requirements. 

14. Comments that the EPA failed to 

account adequately for the amount of 

time and resources that will be required 

to revise state SIPs. 

Comment: Many commenters asserted 

that the SNPR did not recognize that 

removal of affirmative defense 

provisions from SIPs will impose 

enormous burdens on states because 

they will need to revise SIPs to create 

alternative emission limitations in lieu 

of the affirmative defenses. Commenters 

contended that removal of the 

affirmative defense provisions will 

necessarily require state air agencies to 

make extensive revisions to SIPs and 

that in many states, such changes will 

have to be reviewed by the state 

legislature. Commenters explained that 

such an effort could not reasonably be 

completed in many states within the 18 

months the EPA proposed to provide for 

SIP revisions in response to the final SIP 

call. Commenters also stated that the 

SSM provisions that the EPA proposed 

to require states to remove from their 

SIPs have been incorporated into 

thousands of title V operating permits 

and that those title V permits would, in 

turn, need to be modified if the 

affirmative defense provisions are 

removed from the approved SIPs. 

Commenters indicated that states might 

also need to amend an even larger 

number of minor source permits. 

Commenters also indicated that in 

conjunction with removal of affirmative 

defenses, states will also have to 

reevaluate the emission limitations 

currently contained in their SIPs to 

determine if those limitations are still 

are consistent with federal and state law 

(e.g., represent reasonably available 

control technology). Some commenters 

expressed the view that the EPA must 

indicate that states will not be required 

to remove the identified affirmative 

defense provisions from their SIPs until 

the state has had time to consider 

whether emission limitations in state 

regulations and in construction and 

operating permits need to be modified 

and to obtain any necessary EPA 

approval for the modified requirements. 

Commenters also argued that the EPA’s 

suggestion that states subject to a SIP 

call could simply remove an existing 

affirmative defense provision and rely 

on enforcement discretion to address 

‘‘unavoidable’’ exceedances is wrong 

and that states adopt emission 

limitations under state administrative 

rules that require the agency to provide 

a record to support the level of the 

emission limitation. 

Response: The EPA has acknowledged 

that correction of the deficient SIP 

provisions at issue in this action will 

take time and resources. For this reason, 

the EPA is providing states with the 

maximum time (18 months) permitted 

by section 110(k)(5) to respond to this 

SIP call. In addition, the EPA is 

endeavoring to provide states with clear 

and comprehensive guidance 

concerning the proper treatment of 

excess emissions during SSM events in 

SIP provisions in order to make this 

process more efficient. 

The EPA acknowledges that some 

states, in conjunction with removal of 

affirmative defense provisions, may 

elect to undertake a more 

comprehensive revision of affected SIP 

emission limitations. In so doing, the 

states may need to undertake a more 

resource intensive approach than those 

states that merely elect to eliminate the 

affirmative defense provisions. In 

addition, the EPA also recognizes that 

states may eventually need to revise 

permits to reflect the elimination of 

affirmative defense provisions from 

underlying SIP provisions that may 

have been reflected in permits. The EPA 

discussed these issues in the both the 

February 2013 proposal and in the 

SNPR. A summary of comments 

concerning revisions to operating 

permits to reflect the revised SIP 

provisions appears, with the EPA’s 

response to comments, in section 

VIII.D.28 of this document. 

Despite the potential burden on states, 

as the EPA explained in the February 

2013 proposal and the SNPR, the 

Agency believes that it is obligated and 

authorized to issue this SIP call action 

to affected states to require the removal 

of affirmative defense provisions. The 

EPA is not in this action evaluating or 

determining whether SIP emission 

limitations should or should not be 

revised in light of the removal of 

affirmative defenses and is not required 

to do so. The states have discretion to 

determine how best to revise the 

deficient SIP provisions identified in 

this action, so long as they do so 

consistent with the CAA requirements. 

Further, the EPA does not agree that 

enforcement discretion cannot 

substitute for an affirmative defense for 

malfunctions. For example, the EPA has 

taken the position that the CAA does 

not require malfunction emissions to be 

factored into development of section 

112 or section 111 standards and that 

case-by-case enforcement discretion 

provides sufficient flexibility.54

Moreover, the EPA believes that 

Congress has already provided for such 

flexibility in section 113, by providing 

the courts with jurisdiction to determine 

liability and to impose remedies. For 

example, in section 113(e), Congress 

provided specific criteria for courts to 

consider in imposing monetary 

penalties, including consideration of 

such factors as justice may require. 

With respect to the potential need to 

amend permits, as explained in the 

February 2013 proposal, ‘‘the EPA does 

not intend its action on the Petition to 

affect existing permit terms or 

conditions regarding excess emissions 

during SSM events that reflect 

previously approved SIP provisions. 

. . . [A]ny needed revisions to existing 

permits will be accomplished in the 

ordinary course as the state issues new 

permits or reviews and revises existing 

permits. The EPA does not intend the 

issuance of a SIP call to have automatic 

impacts on the terms of any existing 

permit.’’ 55 Thus, these permit revisions 

that commenters expressed concern 

about need not occur during the 18- 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33861 

56See Sierra Club v. Johnson, 551 F.3d 1019 (D.C. 

Cir. 2008), in the rulemaking docket at EPA–HQ– 

OAR–2012–0322–0048; see also NRDC v. EPA, 749 

F.3d 1055 (D.C. Cir. 2014), in the rulemaking docket 

at EPA–HQ–OAR–2012–0322–0885. 

57See, e.g., 79 FR 60897 (October 8, 2014); 79 FR 

72914 (December 8, 2014). 

58 79 FR 55919 at 55929–30. 

month SIP development timeframe but 

may proceed thereafter according to 

normal permit revision requirements. 

Finally, the EPA notes, the burdens 

associated with SIP revisions and 

permit revisions are burdens imposed 

by the CAA. The states have both the 

authority and the responsibility under 

the CAA to have SIPs and permit 

programs that meet CAA requirements. 

It is inherent in the structure of the CAA 

that states thus have the burden to 

revise their SIPs and permits when that 

is necessary, whether because of 

changes in the CAA, changes in judicial 

interpretations of the CAA, changes in 

the NAAQS, or a host of other potential 

events that necessitate such revisions. 

Among those is the obligation to 

respond to a SIP call that identifies legal 

deficiencies in specific provisions in a 

state’s SIP. 

15. Comments that the EPA is being 

inconsistent because rules promulgated 

by the EPA provide affirmative defense 

provisions for malfunction events. 

Comment: A number of commenters 

claimed that the EPA cannot interpret 

the CAA to prohibit affirmative defenses 

in SIP provisions because the Agency 

itself has issued regulations that include 

affirmative defenses for excess 

emissions during malfunction events. 

The commenters claim that the EPA is 

being inconsistent on this point and 

thus cannot require states to remove 

affirmative defenses from SIPs. 

Other commenters alleged that the 

EPA is being inconsistent because it has 

not adequately explained the reversal of 

its ‘‘decades-old’’ policy interpreting the 

CAA to allow affirmative defenses in 

SIP provision. The commenters cited to 

SIP provisions that the EPA previously 

approved in eight states between 2001 

and 2010 that they believed would be 

affected by this SIP call. The 

commenters claimed that these prior 

actions were consistent with the EPA’s 

SSM policy memoranda. Additionally, 

the commenters cited to federal 

regulations that the EPA has previously 

promulgated that include affirmative 

defense provisions. The commenters 

claimed that these prior actions are 

‘‘inconsistent with EPA’s proposed 

disallowance of affirmative defenses.’’ 

Response: The EPA has acknowledged 

that it has previously approved some 

SIP provisions with affirmative defenses 

that were consistent with its 

interpretation of the CAA in the 1999 

SSM Guidance at the time it acted on 

those SIP submissions. However, since 

that time, two decisions from the D.C. 

Circuit have addressed fundamental 

interpretations of the CAA related to the 

legally permissible approaches for 

addressing excess emissions during 

SSM events.56 In light of those 

decisions, as explained in detail in the 

February 2013 proposal, the SNPR and 

this document, the EPA has concluded 

that certain aspects of its prior 

interpretation of the CAA, as set forth in 

the SSM Policy, were not the best 

interpretation of the CAA. As a result, 

certain SIP provisions that the EPA 

previously approved are also not 

consistent with the requirements of the 

CAA. In particular, this includes the 

EPA’s prior interpretation of the CAA to 

allow affirmative defense provisions in 

SIPs in the 1999 SSM Guidance. 

The EPA has also acknowledged that 

it has in the past taken a similar 

approach regarding affirmative defense 

provisions in federal regulations 

addressing hazardous air pollution and 

in new source performance standards. 

Indeed, the EPA’s inclusion of an 

affirmative defense provision in a 

federal regulation resulted in the court 

decision in NRDC v. EPA, in which the 

court rejected the Agency’s 

interpretation of the CAA to allow 

affirmative defenses that limit or 

eliminate the jurisdiction of the courts. 

Just as the EPA is calling on states to 

revise their SIPs to remove affirmative 

defense provisions, the Agency is also 

taking action to correct such provisions 

in federal regulations.57 The continued 

existence of such provisions in the EPA 

regulations that have not yet been 

corrected does not mean that such 

provisions are authorized either in state 

or federal regulations. 

As to the claim that the EPA has not 

adequately explained the basis for 

changing its interpretation of the CAA 

regarding affirmative defenses in SIP 

provisions, the Agency disagrees. The 

SNPR set forth in detail the basis for the 

EPA’s revised interpretation of the CAA, 

in light of the court’s decision in NRDC 

v. EPA.58 The commenters failed to 

specify why this explanation was 

‘‘inadequate.’’ 

16. Comments that existing 

affirmative defense provisions do not 

preclude parties from filing enforcement 

actions or hinder parties from seeking 

injunctive relief for violations of SIP 

requirements. 

Comment: One state commenter 

asserted that the existing affirmative 

defense provisions in the state’s SIP do 

not prevent the state or the EPA from 

pursuing injunctive relief or mitigation 

of environmental impacts in the event of 

violations. Thus, the commenter 

supported the EPA’s prior interpretation 

of the CAA to allow affirmative defense 

provisions, so long as courts can still 

award injunctive relief for violations. 

The commenter did not articulate how 

this prior statutory interpretation is 

consistent with the reasoning of the 

court in NRDC v. EPA concerning the 

same statutory provisions. 

By contrast, an environmental group 

commenter cited a citizen suit 

enforcement case in Texas in which the 

commenter claimed that the affirmative 

defense provision in that state’s SIP 

operated as a de facto shield against any 

enforcement. The commenter stated that 

the EPA’s approval of the affirmative 

defense was premised upon its only 

applying to civil penalties and not to 

injunctive relief and that the Agency’s 

approval of the SIP provision was 

explicitly upheld on this basis by the 

Fifth Circuit. Nevertheless, the 

commenter asserted, the state agency 

has implemented this provision such 

that if the affirmative defense criteria 

are met, there is ‘‘no violation’’ and thus 

no potential for injunctive relief. 

Response: The EPA agrees that some 

of the affirmative defense provisions at 

issue in this action are expressly limited 

to monetary penalties and not to 

injunctive relief. This approach was 

consistent with the EPA’s prior 

interpretation of the CAA concerning 

affirmative defense provisions in SIPs 

but also consistent with the arguments 

that the D.C. Circuit rejected in the 

NRDC v. EPA decision. Thus, the fact 

that some of the affirmative defense 

provisions addressed in this action 

preserve the possibility for injunctive 

relief, even if the court could award no 

monetary penalties, is no longer a 

deciding factor. 

The EPA also agrees that some 

agencies or courts may not apply the 

affirmative defense provisions in the 

manner intended at the time the EPA 

approved them into the SIP. Incorrect 

application of SIP affirmative defense 

provisions by sources, regulators or 

courts is a matter of concern. However, 

even perfect implementation of a SIP 

affirmative defense provision does not 

cure the underlying and now evident 

absence of a legal basis for such 

provisions. Again, the fact that a given 

affirmative defense provision is being 

implemented correctly or incorrectly is 

no longer a deciding factor for purposes 

of this SIP call action. 

These issues are not pertinent to the 

EPA’s decision in this action to require 

states to remove the affirmative defense 

provisions from the previously 

approved SIPs. Rather, as explained in 

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59 551 F.3d 1019 (D.C. Cir. 2008). 

detail in the SNPR and this final action, 

the EPA is requiring the affected states 

to remove these SIP provisions because 

they are inconsistent with CAA 

requirements. As explained in the 

SNPR, the EPA has concluded that such 

affirmative defenses in SIP provisions 

are inconsistent with section 113 and 

section 304, in light of the reasoning of 

the court in NRDC v. EPA. 

17. Comments that the EPA is 

changing its policy on affirmative 

defenses, and this change is arbitrary 

and capricious and thus an 

impermissible basis for a SIP call. 

Comment: Several commenters stated 

that the EPA’s action with respect to 

affirmative defense provisions marks a 

change in the EPA’s approach to these 

provisions. The commenters alleged that 

this SIP call action is not mandated by 

judicial precedent, and therefore the 

SNPR simply reflected a ‘‘policy 

change’’ by the EPA. The commenters 

argued that, while the EPA is permitted 

to change its policy or interpretation of 

the law, this specific change is arbitrary 

and capricious and forces unreasonably 

difficult and burdensome requirements 

on states and sources. The commenters 

asserted that the EPA failed to explain 

adequately this change in policy or to 

document reasons for the change in the 

administrative record. Some 

commenters further alleged that the EPA 

does not have authority to impose its 

policy preferences on states. 

Response: The EPA disagrees that the 

basis for this SIP call action is a change 

of ‘‘policy’’ as alleged by the 

commenters. The EPA’s guidance to 

states concerning the proper treatment 

of excess emissions during SSM events 

in SIP provisions is provided in the 

SSM Policy, but this guidance reflects 

the Agency’s interpretation of statutory 

requirements. As explained in detail in 

the SNPR and in this document, the 

EPA is changing its interpretation of the 

CAA with respect to affirmative 

defenses in SIP provisions based on the 

logic of the court in NRDC v. EPA. 

Further, as acknowledged by 

commenters, the EPA is permitted to 

change its interpretation of the statute 

provided that it clearly explains the 

basis for the change. The EPA clearly 

explained the basis for the changed 

interpretation in the SNPR based on its 

analysis of the legal rationale respecting 

sections 113 and 304 in the NRDC v. 

EPA decision. 

18. Comments that emissions during 

malfunction periods are not ‘‘excess’’ or 

‘‘violations’’ but rather are part of the 

established SIP emission limitations. 

Comment: Commenters cited the 

EPA’s brief filed in the Fifth Circuit 

Luminant Generation v. EPA case in 

support of an argument that states are 

not required to attach a penalty or any 

certain amount of penalty to a violation 

of a SIP emission limitation. The 

commenters noted that in the brief, the 

EPA stated that under section 110 of the 

CAA, states are authorized ‘‘to 

determine what constitutes a violation, 

and to distinguish both quantitatively 

and qualitatively between different 

types of violations.’’ Further, the 

commenter noted, the EPA argued in the 

brief that because the violation is 

defined by the state, an affirmative 

defense does not impinge on the court’s 

jurisdiction. The commenters contended 

that nothing has changed since the brief 

was filed to justify a change in 

interpretation of the CAA and that the 

EPA failed to explain why its prior 

interpretation is no longer correct. 

Other commenters claimed that the 

EPA takes the position that affirmative 

defenses in SIP provisions conflict with 

the court’s jurisdiction over 

enforcement actions and stated that this 

position is flawed because enforcement 

is limited to violations as defined in the 

context of the SIP. The commenters 

asserted that section 304 does not apply 

when there is no SIP requirement being 

violated and that the state has the 

authority to define what constitutes 

such a violation. Similarly, commenters 

argued that an affirmative defense 

provision may provide that emissions 

will not be ‘‘violations’’ if criteria are 

met and that it therefore does not 

interfere with a court’s ability to 

determine appropriate penalty amounts 

under section 113. The commenters 

contended that, because the state has 

the authority to define what constitutes 

a violation, SIP provisions that include 

an affirmative defense do not infringe 

on a court’s authority to penalize a 

source because the CAA does not 

provide a court with jurisdiction to 

impose remedies in the absence of 

liability. 

Response: The EPA explained in 

detail the rationale for its change in 

interpretation of the CAA regarding 

affirmative defenses in the SNPR. The 

EPA acknowledges that in the Luminant 

Generation v. EPA case, the Agency 

argued that states are authorized to 

determine what constitutes a violation 

and to distinguish between different 

types of violations. As the EPA 

explained in the SNPR, the court in 

Luminant Generation v. EPA held that 

the Agency’s interpretation of the CAA 

to permit affirmative defenses 

applicable to malfunctions at that time 

was a ‘‘permissible interpretation of 

section [113], warranting deference.’’ 

The same court also upheld the EPA’s 

interpretation of the CAA to preclude 

affirmative defenses for planned events 

on the same basis that it was a 

reasonable interpretation of the CAA. 

However, the EPA has reevaluated this 

interpretation of the CAA requirements 

in light of the more recent NRDC v. EPA 

decision, and the Agency now believes 

that its prior interpretation of the CAA 

with respect to the approvability of 

affirmative defense provisions in SIPs is 

no longer the best reading of the statute. 

Thus, the Agency’s view now is that a 

‘‘violation’’ cannot be defined in a 

manner that interferes with the court’s 

role in assessing remedies. It is 

irrelevant that the EPA had argued for 

a different interpretation in the past as 

the Agency now believes that the court’s 

analysis in NRDC v. EPA is the better 

reading of the provisions of the statute 

concerning affirmative defenses. The 

EPA has authority to revise its prior 

interpretation of the CAA when further 

consideration indicates to the Agency 

that its prior interpretation of the statute 

is incorrect. The EPA fully explained 

the basis for this change in its 

interpretation of the CAA in the SNPR. 

The EPA agrees that in some cases, 

affirmative defense provisions at issue 

in this SIP call action are structured as 

a complete defense to any liability, not 

merely a defense to monetary penalties. 

The EPA has also determined that 

affirmative defense provisions of this 

type are substantially inadequate to 

meet CAA requirements. Although such 

affirmative defenses may not present the 

same concerns as affirmative defenses 

applicable only to penalties, such 

affirmative defenses may create a 

different concern because they in effect 

provide a conditional exemption from 

otherwise applicable emission 

limitations. If there is no ‘‘violation’’ 

when the criteria of such an ‘‘affirmative 

defense’’ are met and no legitimate 

alternative emission limitation applies 

during that event, then such an 

affirmative defense in effect operates to 

create a conditional exemption from 

applicable emission limitations. This 

form of ‘‘affirmative defense’’ provision 

therefore runs afoul of different CAA 

requirements for SIP provisions. Under 

section 302(k) of the CAA, emissions 

standards or limitations must be 

continuous and cannot include SSM 

exemptions, automatic or otherwise. 

Regardless of whether the commenters 

believe that this form of ‘‘affirmative 

defense’’ should be allowed, the EPA 

believes that provisions of this form are 

inconsistent with the decision of the 

court in Sierra Club v. Johnson.59 In that 

case, the court held that emission 

limitations under the CAA must impose 

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60See CAA section 110(a)(2)(A). 

continuous controls and cannot include 

exemptions for emissions during SSM 

events. The EPA concludes that making 

the exemptions from emission 

limitations conditional does not alter 

the fact that once exercised they are 

illegal exemptions. 

19. Comments that the definition of 

‘‘emission limitation’’ in CAA section 

302(k) does not support this SIP call 

action. 

Comment: Several commenters noted 

that while the EPA depends on the 

definition of ‘‘emission limitation’’ in 

the CAA section 302(k) for this action, 

that CAA provision does not support 

this SIP call action, including that the 

CAA does not require that SIPs contain 

continuous emissions standards in the 

form asserted by the EPA. The 

commenters alleged that the definition 

in the CAA and supporting materials 

interpreting that definition do not 

support the EPA’s requiring one 

emission limitation to apply in all 

circumstances at all times. Some 

commenters further alleged that states 

subject to the EPA’s SIP call action have 

implementation plans that provide 

emission limitations that apply 

continuously through a combination of 

numerical emission limitations, the 

general duty to minimize emissions and 

the affirmative defense criteria for 

excess emissions during malfunctions. 

Several commenters questioned why, 

even if the challenged affirmative 

defense provisions do not qualify as 

‘‘emission limitations’’ or ‘‘emissions 

standards’’ under the first part of the 

definition, they are not approvable as 

‘‘design, equipment, work practice or 

operational standards’’ promulgated 

under the second part of the definition. 

Some commenters argued that, to the 

extent that affirmative defense 

provisions in SIPs do not satisfy the 

definition of ‘‘emission limitation,’’ they 

would still be approvable elements of a 

SIP as ‘‘other control measures, means, 

or techniques’’ allowed under CAA 

section 110(a)(2). Further, some 

commenters believe that the legislative 

history cited in the SNPR does not 

support the EPA’s position but rather is 

only intended to preclude the use of 

dispersion techniques, such as 

intermittent controls. 

One commenter stated that the 

Portland Cement NESHAP, at issue in 

the NRDC v. EPA decision, was 

classified by statute as an ‘‘emissions 

standard,’’ a term defined by the CAA 

and defined as applying ‘‘on a 

continuous basis.’’ The commenter 

stated that SIP provisions involve more 

than ‘‘emissions standards’’ and need 

not be ‘‘emissions standards.’’ 60 Thus, 

according to the commenter, the NRDC 

v. EPA decision does not apply to SIP 

rules. 

Response: The commenters alleged 

that the EPA’s interpretation of the CAA 

section 302(k) definition of ‘‘emission 

limitation’’ in this action was 

inappropriate and that section 302(k) 

does not support this SIP call action. 

The EPA notes that it is not the 

Agency’s position that all emission 

limitations in SIP provisions must be set 

at the same numerical level for all 

modes of source operation or even that 

they must be expressed numerically at 

all. To the contrary, the EPA intended 

in the February 2013 proposal and the 

SNPR to indicate that states may elect 

to create emission limitations that 

include alternative emission limitations, 

including specific technological 

controls or work practices, that apply 

during certain modes of source 

operation such as startup and 

shutdown. However, this comment is 

not relevant to the issue of affirmative 

defense provisions in SIPs. It is not for 

the reason that affirmative defense 

provisions do not meet the definition of 

an ‘‘emission limitation’’ in section 

302(k) that the EPA is promulgating this 

SIP call action for affirmative defense 

provisions. The EPA has concluded that 

affirmative defense provisions are 

substantially inadequate to meet CAA 

requirements concerning enforcement, 

in particular the requirements of section 

113 and section 304. 

As to commenters’ argument that 

affirmative defense provisions can be 

appropriately considered to be ‘‘design, 

equipment, work practice or operational 

standards’’ under CAA section 302(k), 

the critical aspect of an emission 

limitation in general is that it be a 

‘‘requirement . . . which limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis . . . .’’ These 

provisions operate to excuse sources 

from liability for emissions under 

certain conditions, not to limit the 

emissions in question. The affirmative 

defense provisions at issue in this final 

action do not themselves, or in 

combination with other components of 

the emission limitation, limit the 

quantity, rate or concentration of air 

pollutants on a continuous basis. These 

affirmative defense provisions, 

therefore, do not themselves meet the 

statutory definition of an emission 

limitation under section 302(k). 

The EPA notes that the definition of 

‘‘emission limitation’’ in section 302(k) 

is relevant, however, with respect to 

those affirmative defense provisions that 

commenters claim are merely a means 

to define what constitutes a ‘‘violation’’ 

of an applicable SIP emission limitation. 

As previously explained, the EPA 

believes that an ‘‘affirmative defense’’ 

structured in such a fashion is deficient 

because it in effect creates a conditional 

exemption from the SIP emission 

limitations. By creating such 

exemptions, conditional or otherwise, 

an affirmative defense of this type 

would render the emission limitations 

less than continuous. 

The EPA disagrees with commenters’ 

remaining points because the EPA’s 

position on what appropriately qualifies 

as an emission limitation is consistent 

with the CAA, relevant legislative 

history and case law. These issues are 

addressed in more detail in sections 

VII.A.3.i through 3.j of this document. 

20. Comments that the EPA has failed 

to show that state SIPs are substantially 

inadequate, as is required to promulgate 

a SIP call. 

Comment: Several commenters noted 

that before the EPA can issue a SIP call 

under section 110(k)(5) with respect to 

affirmative defense provisions, the EPA 

must determine that a SIP provision is 

‘‘substantially inadequate to attain or 

maintain the relevant [NAAQS], to 

mitigate adequately the interstate 

pollutant transport described in section 

7506a of this title or section 7511c of 

this title, or to otherwise comply with 

any requirement of this chapter.’’ The 

commenters further stated that Congress 

employed a high bar in the language of 

CAA section 110(k)(5) in requiring the 

EPA to find ‘‘substantial’’ inadequacies, 

as opposed to other CAA provisions that 

permit the Agency to act based on 

‘‘discretion’’ or when it ‘‘may be 

appropriate.’’ The commenters alleged 

that the EPA has not demonstrated a 

‘‘substantial inadequacy’’ with respect 

to the affirmative defense provisions at 

issue in the SNPR, as required to issue 

a SIP call. 

Some commenters also argued that 

the EPA has failed in its SNPR to define 

or interpret ‘‘substantially inadequate’’ 

or provide any standards for assessing 

the adequacy of a SIP with respect to 

affirmative defense provisions. The 

commenters also alleged that, if the EPA 

is required to rely on data and evidence 

in evaluating SIP revisions, it follows 

that the EPA should produce at least the 

same level of data and evidence, if not 

more, to support a SIP call that is based 

on the more stringent substantial 

inadequacy standard of section 

110(k)(5). 

Response: The EPA disagrees with the 

commenters’ arguments that the Agency 

has failed to establish that the 

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61See No. 10–60961, 2011 WL 710598 (5th Cir. 

Feb. 24, 2011). 

affirmative defense provisions identified 

in the SNPR are ‘‘substantially 

inadequate’’ as required by section 

110(k)(5). As explained in the SNPR and 

this action, the EPA has determined that 

affirmative defense provisions at issue 

in this action are substantially 

inadequate because they are 

inconsistent with applicable legal 

requirements of the CAA. The 

commenters raised similar arguments 

with respect to the EPA’s authority to 

issue a SIP call to address other forms 

of deficient SIP provisions, such as 

automatic or discretionary exemptions 

from emission limitations. The EPA 

responds to these broader arguments in 

sections VIII.D.46 through D.48 of this 

document. 

21. Comments that this action is not 

national in scope, and therefore the D.C. 

Circuit is not the sole venue for review 

of this action. 

Comment: Several commenters 

claimed that the EPA is incorrect in 

stating that this SIP call action is a 

single nationally applicable action and 

of nationwide scope or effect. The 

commenters alleged that review of all 

affected SIP provisions in a single action 

in the D.C. Circuit would 

inappropriately limit the scope of 

review by obscuring distinctions 

between the various states’ regulatory 

programs and practical concerns. The 

commenters asserted that none of the 

various state SIP provisions addressed 

in the SNPR were the same, and the 

EPA analyzed each separately and 

provided case-by-case justification for 

its proposed action as to each. Further, 

the commenters argued that although 

the EPA has packaged the SIP calls in 

one Federal Register document, any 

final action that the EPA takes with 

respect to a single state’s affirmative 

defense provision is only locally 

applicable and therefore should be 

reviewed in the individual circuits with 

jurisdiction over the affected state. One 

commenter further contended that, 

while the EPA’s revised SSM Policy 

may be of interest to states to which the 

SIP call does not directly apply, that 

does not make the action ‘‘nationally 

applicable.’’ 

The commenters acknowledged that 

the EPA cited Texas v. EPA in support 

of its assertion, but the commenters 

allege that the Fifth Circuit in that case 

never reached the issue of nationwide 

scope and effect.61 The commenters 

claimed that this SIP call action is 

distinct from the rule at issue in Texas 

v. EPA because this final action turns on 

the particulars of the SIP call action’s 

impact on each individual state’s SIP. 

One commenter also claimed that the 

EPA has failed to provide authority or 

a legal basis to support its determination 

that this rulemaking is of ‘‘nationwide 

scope or effect.’’ Such failure, according 

to the commenter, violated the 

requirements of section 307(d)(3) and 

did not allow for full and meaningful 

comment on this issue. 

One commenter alleged that the EPA 

has waived its challenge to venue for 

those circuits that have already weighed 

in regarding individual state SIP 

provisions at issue in this action, 

including Texas’s affirmative defense 

provisions. Another commenter claimed 

that the discussion over appropriate 

venue in the February 2013 proposal 

and SNPR presupposes that the EPA’s 

issuance of a revised SSM Policy is a 

‘‘final agency action’’ subject to judicial 

review under section 307(b)(1) but 

argued that the EPA has failed to 

determine that its issuance of the SSM 

Policy, in and of itself, constitutes ‘‘final 

agency action.’’ 

Response: The EPA disagrees with the 

commenters’ theories concerning the 

scope of the Agency’s action. These 

comments on the SNPR questioning the 

EPA’s determination of ‘‘nationwide 

scope and effect’’ for this action largely 

repeat similar comments on the 

February 2013 proposal. As with those 

prior comments, commenters on the 

SNPR made the basic argument that this 

action is not of nationwide scope and 

effect because the EPA is reviewing 

individual SIP provisions and directing 

states to correct their respective 

deficient SIP provisions. The EPA 

disagrees with commenters because, as 

explained in more detail in its response 

in section V.D.6 of this document, this 

rulemaking action applies the same 

‘‘process and standard’’ to numerous 

areas across the country. While it is 

correct that the SIP submissions that 

states make in response to this SIP call 

will be reviewed separately by the EPA 

and subsequently subject to potential 

judicial review in various circuits, the 

EPA’s legal interpretation of the CAA 

concerning permissible SIP provisions 

to address emissions during SSM events 

in this action is nationally applicable to 

all states subject to the SIP call. The 

EPA provided a full explanation of its 

basis for this determination of 

nationwide scope and effect in the 

February 2013 proposal and the SNPR. 

The EPA also disagrees with the 

argument that the Agency has waived 

venue regarding challenges to this SIP 

call action concerning the affirmative 

defense provisions in the Texas SIP. 

Evidently, the commenter believes that 

because a prior challenge to another 

EPA rulemaking concerning the 

affirmative defense provisions occurred 

in the Fifth Circuit, it necessarily 

follows that any other rulemaking 

related to such provisions can only 

occur in the Fifth Circuit. The EPA 

believes that this interpretation of its 

authority under section 307(b)(1) is 

simply incorrect. Under section 

307(b)(1), the EPA is explicitly 

authorized to make a determination that 

a specific rulemaking action is of 

‘‘nationwide scope and effect.’’ The 

statute does not specify the 

considerations that the EPA is to take 

into account when making such a 

determination, let alone provide that the 

Agency cannot invoke this because 

some aspect of the rulemaking at issue 

might previously have been addressed 

in one or more other circuit courts. To 

the contrary, the EPA believes that 

section 307(b)(1) explicitly provides 

authority for the Agency to determine 

that a given rulemaking should be 

reviewed in the D.C. Circuit in 

situations such as those presented in 

this action that affects important 

questions of statutory interpretation that 

affect states nationwide. 

The EPA likewise disagrees with the 

argument that its action is not a final 

agency action. Within this action, the 

EPA is taking final agency action to 

respond to the Petition, updating its 

interpretations of the CAA in the SSM 

Policy and applying its interpretations 

of the CAA in the SSM Policy to specific 

SIP provisions in the SIPs of many 

states. The EPA is conducting this 

action through notice-and-comment 

rulemaking to assure full consideration 

of the issues. As stated elsewhere in this 

document, the revised SSM Policy is a 

nonbinding policy statement that does 

not, in and of itself, constitute ‘‘final’’ 

action. However, the EPA is taking 

‘‘final’’ action by responding to the 

Petition and issuing the resulting SIP 

call action. To the extent that 

interpretations expressed in the revised 

SSM Policy are also relied on to support 

this ‘‘final’’ action, then the EPA’s 

interpretations of the CAA requirements 

for SIP provisions applicable to 

emissions during SSM events are part of 

the final agency action and are subject 

to judicial review. To the extent the 

commenters are otherwise arguing that 

the issuance of the updated SSM Policy 

in and of itself is not final agency action 

subject to judicial review under the 

CAA, the EPA agrees with this assertion. 

The EPA notes that the commenters are 

at liberty to adopt this position and 

waive their opportunity to challenge the 

SSM Policy because they do not 

consider it final agency action. 

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22. Comments that the EPA should 

clarify that SIPs can include work 

practice standards or general-duty 

clauses to apply during malfunction 

periods in place of affirmative defense 

provisions. 

Comment: Several commenters stated 

that the EPA should announce in this 

final action that in lieu of affirmative 

defenses, states may elect to revise their 

SIP provisions to include work practice 

standards or general-duty clauses that 

are modeled on existing affirmative 

defense provisions and that would 

apply during malfunctions. Most of 

these commenters advocated that the 

EPA’s previously recommended criteria 

for an ‘‘affirmative defense’’ for 

malfunctions should simply be changed 

into criteria for a ‘‘work practice’’ 

provision instead. One commenter made 

the same suggestion but also advocated 

that the EPA eliminate six of the nine 

criteria and rephrase the remaining 

criteria, in order to ‘‘improve the 

standards, reduce uncertainty, and 

reduce wasteful litigation.’’ This 

commenter advocated that the EPA also 

redefine the term ‘‘malfunction’’ to 

much more broadly mean any ‘‘sudden 

and unavoidable breakdown of process 

or control equipment.’’ Specifically, the 

commenter advocated, the EPA should 

no longer recommend that a 

malfunction be defined as an event that: 

(i) Was caused by a sudden, infrequent 

and unavoidable failure of air pollution 

control equipment, process equipment 

or a process to operate in a normal or 

usual manner; (ii) could not have been 

prevented through careful planning, 

proper design or better operation and 

maintenance practices; (iii) did not stem 

from any activity or event that could 

have been foreseen and avoided or 

planned for; and (iv) was not part of a 

recurring pattern indicative of 

inadequate design, operation or 

maintenance. By changing the 

‘‘affirmative defense’’ provisions for 

malfunctions into ‘‘work practice’’ or 

‘‘general duty’’ provisions for 

malfunctions, the commenters argued, 

the revised provisions would be 

consistent with CAA requirements. 

Under this approach, the commenters 

asserted that compliance with these new 

requirements would mean that any 

emissions during a malfunction event 

could not be considered ‘‘excess’’ or 

result in any violation if the source had 

complied with the ‘‘work practice’’ 

criteria. 

Response: As an initial matter, the 

EPA has not established a regulatory 

definition of ‘‘malfunction’’ that is 

binding on states when developing SIPs. 

States have the flexibility in their SIPs 

to define that term. Thus, the EPA is not 

addressing here the comments 

requesting that EPA ‘‘redefine’’ the 

definition of malfunction. 

Regarding the more general concern of 

the commenters, that states be allowed 

to establish an alternative emission 

limitation in the form of a work practice 

standard that applies during 

malfunctions, the EPA notes two points. 

First, the CAA does not preclude that 

emissions during malfunctions could be 

addressed by an alternative emission 

limitation. The EPA’s general position 

in the context of standards under 

sections 111, 112 and 129 is that: (i) The 

applicable emission limitation applies 

at all times including during 

malfunctions; (ii) the CAA does not 

require the EPA to take into account 

emissions that occur during periods of 

malfunction when setting such 

standards; and (iii) accounting for 

malfunctions would be difficult, if not 

impossible, given the myriad types of 

malfunctions that can occur across all 

sources in a source category and given 

the difficulties associated with 

predicting or accounting for the 

frequency, degree and duration of 

various malfunctions that might occur. 

Although the EPA has not, to date, 

found it practicable to develop emission 

standards that apply during periods of 

malfunction in place of an otherwise 

applicable emission limitation, this does 

not preclude the possibility that a state 

may determine that it can do so for all 

or some set of malfunctions. Second, 

states are not bound to establish any 

specific definition of ‘‘malfunction’’ in 

their SIPs. Thus, it is difficult to judge 

at this time whether any particular 

alternative emission limitation in a SIP 

for malfunctions, including any specific 

work practice requirements in place of 

an otherwise applicable emission 

limitation, would be approvable. 

With regard to the specific comment 

that the affirmative defense criteria 

could be converted into a work practice 

requirement to apply during 

malfunctions in place of an otherwise 

applicable emission limitation, the EPA 

is unsure at this time whether the 

criteria previously recommended for an 

affirmative defense provision would 

serve to meet the obligation to develop 

an appropriate alternative emission 

limitation. Existing affirmative defense 

criteria (which include, among other 

things, making repairs expeditiously, 

taking all possible steps to minimize 

emissions and operating in a manner 

consistent with good practices for 

minimizing emissions) were developed 

in the context of helping to determine 

whether a source should be excused 

from monetary penalties for violations 

of CAA requirements and were not 

developed in the context of establishing 

an enforceable alternative emission 

limitation under the Act. The EPA 

would need to consider this approach in 

the context of a specific SIP regulation 

for a specific type of source and 

emission control system. 

Finally, the EPA notes that any 

emission limitation, including an 

alternative emission limitation, that 

applies during a malfunction must meet 

the applicable stringency requirements 

for that type of SIP provision (e.g., 

would need to meet RACT for sources 

subject to the RACT requirement) and 

must be legally and practically 

enforceable. Thus, the SIP provision 

would need to: (i) Clearly define when 

the alternative emission limitation 

applied and the otherwise applicable 

emission limitation did not; (ii) clearly 

spell out the requirements of that 

standard; and (iii) include adequate 

monitoring, recordkeeping and 

reporting requirements in order to make 

it enforceable. In addition, the state 

would need to account for emissions 

attributable to these foreseen events in 

emissions inventories, modeling 

demonstrations and other regulatory 

contexts as appropriate. 

23. Comments that the EPA has failed 

to account adequately for the cost of this 

SIP call action and is therefore in 

violation of the Regulatory Flexibility 

Act, the Unfunded Mandates Reform 

Act and Administration policy. 

Comment: Two commenters argued 

that the SNPR lacks sufficient analysis 

of what this action will cost states, 

stationary sources and the public. The 

commenters allege that this absence of 

economic impact analysis is contrary to 

the Regulatory Flexibility Act, the 

Unfunded Mandates Reform Act and 

Administration policy. One of the 

commenters also noted that imposing 

substantial ‘‘unfunded mandates’’ on 

state regulatory agencies and forcing 

stationary sources to absorb additional 

costs should be evaluated carefully. 

Response: The EPA disagrees with the 

commenters’ allegation that the EPA has 

failed to comply with relevant statutes 

and Administration policy in 

accounting for the cost of the actions 

proposed in the SNPR. The EPA did in 

fact properly consider the costs imposed 

by this action. These issues are 

addressed in more detail in section 

V.D.7 of this document. 

24. Comments that states should not 

be required to eliminate affirmative 

defense provisions but rather should be 

allowed to revise them to be appropriate 

under CAA requirements. 

Comment: One state commenter 

claimed that it should be allowed to 

revise its existing affirmative defense 

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provisions rather than remove them. 

The commenter asserted that the state 

should be allowed to revise the 

provision to make clear that it does not 

apply to private enforcement actions 

under CAA section 304(a), which was 

the only issue specifically before the 

court in NRDC v. EPA. Relying on the 

court’s decision, the commenter claimed 

that the state should be allowed to 

revise the affirmative defense provisions 

to apply only in administrative 

enforcement proceedings. The 

commenter also argued that there may 

be other options for appropriately 

tailoring the state’s existing affirmative 

defense provisions rather than removing 

them from the SIP. 

Response: The EPA agrees that the 

court in NRDC v. EPA did not directly 

address whether states have authority to 

create affirmative defense provisions 

that apply exclusively to state personnel 

in the context of state administrative 

enforcement actions. Statements by the 

court concerning the EPA’s own 

authority in the context of 

administrative enforcement, however, 

indicate that the court did not intend to 

foreclose the Agency from exercising its 

own enforcement discretion with 

respect to remedies in federal 

administrative enforcement actions. 

However, the EPA has reevaluated its 

interpretation of CAA requirements in 

light of the court’s decision in NRDC v. 

EPA and the EPA now interprets the 

CAA to preclude state SIP provisions 

creating affirmative defenses that 

sources could assert in the context of 

judicial enforcement in federal court, 

whether initiated by states, the EPA, or 

other parties pursuant to section 304. 

The EPA agrees that states may elect 

to revise their existing deficient 

affirmative defense provisions to make 

them ‘‘enforcement discretion’’-type 

provisions that apply only in the 

context of administrative enforcement 

by the state. Such revised provisions 

would need to be unequivocally clear 

that they do not provide an affirmative 

defense that sources can raise in a 

judicial enforcement context or against 

any party other than the state. Moreover, 

such provisions would have to make 

clear that the assertion of an affirmative 

defense by the source in a state 

administrative enforcement context has 

no bearing on the additional remedies 

that the EPA or other parties may seek 

for the same violation in federal 

administrative enforcement proceedings 

or judicial proceedings. 

In this action, the EPA is not 

determining whether any such revisions 

would meet applicable CAA 

requirements. The EPA would need to 

consider the precise wording of any 

such revised provisions in evaluating 

whether the state has adequate 

enforcement authority to meet the 

requirements of section 110(a)(2)(C) and 

also whether application of such a 

provision in a state administrative 

proceeding could interfere with the 

ability of a citizen or the EPA to bring 

a federal enforcement action. 

25. Comments that states’ ability to 

use enforcement discretion is not an 

adequate replacement for affirmative 

defense provisions. 

Comment: Several commenters argued 

that exercise of enforcement discretion 

is not an adequate substitute for an 

affirmative defense, particularly where 

the emissions at issue resulted from an 

inevitable and unavoidable malfunction. 

In any individual case, the commenters 

were concerned that even if a state 

elects not to enforce against a violation, 

the EPA or others might elect to bring 

an enforcement action. One commenter 

contended that it is inappropriate for 

the EPA to encourage states to use 

enforcement discretion instead of 

encouraging them to create alternative 

emission limitations to replace 

affirmative defenses in SIP provisions. 

The commenters also alleged that 

reliance on judicial discretion to 

determine the appropriateness of 

penalties is similarly inadequate. 

The commenters contended that, 

although it is reasonable for a state to 

exercise enforcement discretion under 

circumstances when an emission 

limitation cannot be met, it is not 

reasonable to adopt SIP provisions with 

emission limitations that put some 

sources in the position of ‘‘repeated 

noncompliance.’’ 

Response: These comments 

addressing whether an enforcement 

discretion approach is sufficient are 

similar to comments received on the 

February 2013 proposal to which the 

EPA responds in section VII.A.3.p of 

this document. Through this SIP call, 

the EPA is not requiring states to rely on 

enforcement discretion in place of 

achievable SIP emission limitations. 

Rather, the EPA is requiring states to 

ensure that emission limitations are 

consistent with the definition of that 

term in section 302(k), and specifically 

that emission standards provide for 

continuous compliance. If emission 

limitations that apply during routine 

operations cannot be met by a source 

during periods of startup or shutdown, 

states have authority to establish 

alternative emission standards. The EPA 

disagrees that an affirmative defense for 

penalties for excess emissions for 

periods of malfunctions is an adequate 

substitute for an enforceable continuous 

emission limitation and concludes that 

such an approach is inconsistent with 

the CAA as interpreted by the court in 

NRDC, as explained in the SNPR. 

The EPA also disagrees that 

affirmative defense provisions would 

have been appropriate to address the 

‘‘repeated noncompliance’’ concerns of 

the commenters. The EPA’s prior 

interpretation of the CAA was that states 

could create narrowly tailored 

affirmative defense provisions 

applicable to malfunctions. However, to 

the extent that there are malfunctions 

that put a source in the position of 

‘‘repeated noncompliance,’’ the form of 

affirmative defense that the EPA 

previously believed was consistent with 

the CAA would not have provided relief 

because several of the criteria could not 

be met. Specifically, the EPA believes 

repeated noncompliance is typically a 

result of inadequate design, is part of a 

‘‘recurring pattern,’’ and thus likely 

could have been ‘‘foreseen and 

avoided.’’ In short, an affirmative 

defense would not have been 

appropriate for such a source. 

26. Comments that the EPA should 

establish specific rules to govern how 

states set alternative limitations that 

apply in lieu of affirmative defense 

provisions. 

Comment: Commenters urged the EPA 

to clarify in this final action that states 

may establish alternative emission 

limitations applicable to startup and 

shutdown only if the source meets all 

applicable CAA requirements, including 

but not limited to BACT/LAER, and the 

state also demonstrates through 

modeling that potential worst-case 

emissions from startup and shutdown 

would not interfere with attainment and 

reasonable further progress. Other 

commenters stated that any changes to 

SIP emission limitations must be made 

as part of a SIP revision process, which 

would include a demonstration that 

higher levels of emissions during 

startup and/or shutdown would not lead 

to violations of the NAAQS or PSD 

increments. 

Commenters also argued that any 

such alternative emission limitation 

should ‘‘sunset’’ each time the EPA 

promulgates a new NAAQS and that the 

Agency should require the state to 

demonstrate again that an alternative 

emission limitation applicable during 

startup and/or shutdown does not 

interfere with attainment or other 

applicable requirements of the CAA for 

the revised NAAQS. In support of their 

arguments that the EPA should impose 

specific requirements of this type, the 

commenters indicated that a state has 

issued permits for sources that establish 

particulate matter (PM) emission 

limitations less stringent than existing 

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permit terms and without requiring a 

BACT/LAER/ambient impacts analysis 

and has done so without public notice 

and comment. Commenters urged the 

EPA to require states to follow public 

notice-and-comment processes before 

issuing any permits for sources with 

alternative limitations less stringent 

than those imposed by the SIP and 

claimed such process is required under 

the CAA. 

In addition, some commenters stated 

that if the EPA allows states to set ‘‘new, 

higher, or alternate limits’’ applicable 

during startup and shutdown, the EPA 

should set clear parameters. According 

to commenters, the EPA at a minimum 

should require, for emissions that have 

not previously been authorized or 

considered part of a source’s potential to 

emit, that: (i) Limitations must meet 

BACT/LAER; (ii) there should be clear, 

enforceable rules for when alternate 

limitations apply; (iii) there should be a 

demonstration that worst-case emissions 

will not cause or contribute to a 

violation of the NAAQS or PSD 

increments; and (iv) proposed 

limitations should be subject to public 

notice and comment and judicial 

review. The commenter pointed to a 

letter from the EPA to Texas in which, 

the commenter claims, the Agency 

indicated that these parameters must be 

met. 

A commenter stated that the EPA 

should unequivocally state in this final 

action that: (i) All potential to emit 

emissions, including quantifiable 

emissions associated with startup and 

shutdown, must be included in federal 

applicability determinations and air 

quality permit reviews; (ii) 

authorization of these emissions must 

include technology reviews and impacts 

analyses; and (iii) the above 

requirements must be included in the 

permit that authorizes routine emissions 

from the applicable units and must be 

subject to public notice, comment and 

judicial review. 

A commenter recognized that there 

may be a variety of ways in which states 

can authorize different limits to apply 

during startup and shutdown but argued 

that, no matter the method chosen, the 

emissions need to be fully accounted for 

by the state in the relevant SIP, 

including a demonstration that the 

additional emissions authorized during 

startup and shutdown will not violate 

any NAAQS. 

Response: The EPA understands the 

concerns raised by the commenters but 

does not agree that further regulatory 

action such as issuance of regulatory 

text is necessary at this time. Through 

this action, the EPA is providing 

comprehensive guidance to states 

concerning issues related to the proper 

treatment of emissions during SSM 

events in SIP provisions. For example, 

the EPA is addressing the concern 

raised by commenters that states will 

need to ensure that any SIP revisions in 

response to this SIP call will meet 

applicable CAA requirements. Under 

section 110(k)(3), the EPA has authority 

to approve SIP revisions only if they 

comply with CAA requirements. 

Moreover, under section 110(l), the EPA 

cannot approve SIP revisions if they 

would ‘‘interfere with any applicable 

requirement concerning attainment and 

reasonable further progress . . . or any 

other applicable requirement’’ of the 

CAA. The EPA believes that both states 

and the Agency can address these issues 

in SIP rulemakings without the need for 

any additional federal regulations as 

suggested by the commenters. 

The EPA agrees with the concerns 

raised by the commenters regarding 

instances where a state has issued 

source permits that impose less 

stringent emission limitations than 

otherwise established in the SIP. Using 

a permitting process to create 

exemptions from emission limitations in 

SIP emission limitations applicable to 

the source is tantamount to revising the 

SIP without meeting the procedural and 

substantive requirements for a SIP 

revision. The Agency’s views on this 

issue are described in more detail in 

section VII.C.3.e of this document. 

The EPA does not agree with the 

comment that suggests ‘‘worst-case 

modeling’’ would always be needed to 

show that a SIP revision establishing 

alternative emission limitations for 

startup and shutdown would not 

interfere with attainment or reasonable 

further progress. The nature of the 

technical demonstration needed under 

section 110(l) to support approval of a 

SIP revision depends on the facts and 

circumstances of the SIP revision at 

issue. The EPA will evaluate SIP 

submissions that create alternative 

emission limitations applicable to 

certain modes of operation such as 

startup and shutdown carefully and will 

work with the states to assure that any 

such limitations are consistent with 

applicable CAA requirements. Under 

certain circumstances, there may be 

alternative emission limitations that 

necessitate a modeling of worst-case 

scenarios, but those will be determined 

on a case-by-case basis. 

The EPA also does not agree that 

existing SIP provisions with alternative 

emission limitations should 

automatically ‘‘sunset’’ upon 

promulgation of a new or revised 

NAAQS. Such a process could result in 

gaps in the state’s regulatory structure 

that could lead to backsliding. When the 

EPA promulgates new or revised 

NAAQS, it has historically issued rules 

or guidance to states concerning how to 

address the transition to the new 

NAAQS. In this process, the EPA 

typically addresses how states should 

reexamine existing SIP emission 

limitations to determine whether they 

should be revised. With respect to 

technology-based rules, the EPA has 

typically taken the position that states 

need not adopt new SIP emission 

limitations for sources where the state 

can demonstrate that existing SIP 

provisions still meet the relevant 

statutory obligations. For example, the 

EPA believes that states can establish 

that existing SIP provisions still 

represent RACT for a specific source or 

source category for a revised NAAQS. In 

making this determination, states would 

need to review the entire emission 

limitation, including any alternative 

numerical limitations, control 

technologies or work practices that 

apply during modes of operation such 

as startup and shutdown, and ensure 

that all components of the SIP emission 

limitation meet all applicable CAA 

requirements. 

27. Comments that the EPA should 

closely monitor states’ SIP revisions in 

response to this SIP call. 

Comment: Commenters urged the EPA 

to monitor states’ efforts to revise SIPs 

in response to the SIP call closely in 

order to assure that the revisions meet 

all applicable requirements. The 

commenters indicated concern that 

states and industry may weaken 

emission limitations through this 

process. The commenter alleged that 

one state has issued permits for sources 

with emission limitations applicable 

during SSM events that are less 

stringent than the emission limitations 

approved in the SIP. Furthermore, the 

commenter alleged, the state issued 

these permits without public notice and 

comment. As support for this 

contention, the commenter detailed the 

differences between the requirements of 

a permit issued for a source and the 

requirements in the SIP. The commenter 

also claimed that the state has issued 

permits for other facilities similar to the 

one it described in detail in the 

comments. 

Response: The EPA understands the 

concerns expressed by the commenter 

that SIP revisions made in response to 

this SIP call need to be consistent with 

CAA requirements. As explained in this 

document, the states and the EPA will 

work to assure that the SIP revisions 

will meet applicable legal requirements. 

The EPA will evaluate these SIP 

submissions consistent with its 

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62See 538 U.S. 408, 417 (2003). 

63See 666 F.3d at 1192–93 (‘‘EPA acknowledges 

that violations are likely inevitable, but relies on the 

provision of an affirmative defense to compensate 

for infeasibility problems.’’). 

obligations under sections 110(k)(3), 

110(l) and 193 and under any other 

substantive provisions of the CAA 

applicable to specific SIP submissions. 

To the extent that the commenters are 

concerned about whether the SIP 

revisions meet applicable requirements, 

they will have the opportunity to 

participate in the development of those 

revisions. States must submit SIP 

revisions following an opportunity for 

comment at the state level. 

Additionally, the EPA acts on SIP 

submissions through its own noticeand-comment process. As part of these 

administrative processes, both the state 

and the EPA will need to evaluate 

whether the proposed revision to the 

SIP meets applicable CAA requirements. 

In the context of those future 

rulemaking actions, the public will have 

a chance to review the substance of the 

specific SIP revisions in response to this 

SIP call, as well as the state’s and the 

EPA’s analysis of the SIP submissions 

for compliance with the CAA. 

28. Comments that the EPA does not 

have authority to take this action 

without Congressional authorization. 

Comment: A commenter contended 

that the EPA does not have the authority 

to write law and that the EPA should be 

required to seek changes to the 

applicable law through Congress, before 

eliminating affirmative defense and due 

process provisions from SIPs. 

Response: Through this action the 

EPA is not attempting to rewrite the 

CAA. Rather, the EPA is requiring states 

to revise specific SIP provisions to 

comply with the existing requirements 

of the CAA, as interpreted by the courts. 

As explained in detail in the SNPR and 

this document, the EPA has determined 

that affirmative defense provisions at 

issue in this action are inconsistent with 

the existing requirements of the CAA. 

29. Comments that affirmative defense 

provisions are needed to ensure sources’ 

Constitutional right to due process in 

the event of violations. 

Comment: A number of commenters 

argued that by requiring the removal of 

affirmative defense provisions from 

SIPs, the EPA is impinging on the 

Constitutional rights of sources that may 

have wanted to assert such affirmative 

defenses in an enforcement action. A 

commenter claimed that affirmative 

defense provisions are not ‘‘loop holes,’’ 

as alleged by the EPA, but instead are 

fundamental due process provisions 

which should be retained at all levels 

for the protection of the public. Another 

commenter cited State Farm Mut. Auto 

Ins. Co. v. Campbell, for the proposition 

that a monetary penalty that is ‘‘grossly 

excessive . . . constitutes an arbitrary 

deprivation of property.’’ 62 Other 

commenters claimed that excessive 

penalties constitute an arbitrary 

deprivation of property. The 

commenters asserted that a penalty is 

excessive where it applies severe 

punishment to an act that is 

unavoidable. 

Response: The commenters’ due 

process concerns suggest that without 

an affirmative defense provision, any 

penalty assessed for violation of a SIP 

would be per se ‘‘excessive’’ or 

‘‘arbitrary.’’ Though not expressly 

stated, some of these comments appear 

to suggest that the existing CAA 

enforcement provisions are facially 

unconstitutional. The EPA disagrees. 

The CAA does not mandate that any 

penalty is automatically assessed for a 

violation. Rather the CAA establishes a 

maximum civil penalty in section 113(b) 

but then expressly provides in section 

113(e) the criteria that the EPA or the 

courts (as appropriate in administrative 

or judicial enforcement) ‘‘shall take into 

consideration (in addition to other 

factors as justice may require).’’ These 

criteria explicitly include consideration 

of ‘‘good faith efforts to comply.’’ Thus, 

the CAA on its face does not mandate 

the imposition of any penalty 

automatically, much less one that is per 

se excessive. Notably, the commenters 

do not elaborate on how or why they 

believe the statutory penalty provisions 

of the CAA are facially unconstitutional, 

instead making generalized claims. 

To the extent that the commenters are 

raising an ‘‘as applied’’ claim of 

unconstitutionality, any such claim can 

be raised in the future in the context of 

a specific application of the statute in an 

enforcement action. Such was the case 

in the State Farm case cited by the 

commenters. In that case, a court had 

awarded punitive damages of $145 

million in addition to $1 million 

compensatory damages in an 

automobile liability case. A statutory 

penalty provision was not at issue in 

that case and thus there were no 

statutory criteria for the lower court to 

consider in determining the appropriate 

penalty amount. Rather, in its review of 

whether the punitive damage award was 

excessive, and thus violated due 

process, the Court looked at three 

factors it has instructed lower courts to 

consider in assessing punitive damages. 

Such would be the case with any claim 

that a CAA penalty violated due 

process, where a reviewing court would 

consider whether the court 

appropriately considered the relevant 

penalty factors in assessing a penalty 

claimed as unconstitutional ‘‘as 

applied.’’ 

30. Comments that the EPA’s action 

eliminating affirmative defense 

provisions from SIPs violates the Eighth 

Amendment of the Constitution. 

Comment: Several commenters 

asserted that relying on judicial 

discretion to determine the 

appropriateness of penalties is arguably 

unconstitutional under the Eighth 

Amendment’s prohibition on excessive 

fines and punishments by allowing 

potentially significant penalties that are 

disproportionate to the offense. The 

commenter stated that an affirmative 

defense provision ‘‘helps guard against 

infringement of the Eighth 

Amendment’s protections.’’ Other 

commenters argued that the U.S. 

Supreme Court has held that Eighth 

Amendment protections apply to 

government action in a civil context as 

well as in a criminal context. The 

commenters claimed that significant 

penalties are not proportional to an 

offense caused by unavoidable events, 

such as excess emissions during 

malfunction events. The commenters 

concluded that unless the EPA allows 

states to accommodate unavoidable 

emissions through changes to applicable 

emission limitations before affirmative 

defenses are removed, the EPA’s 

proposal would ‘‘run afoul of 

Constitutional limitations.’’ 

One commenter stated that an 

affirmative defense is the ‘‘minimum 

protection EPA or the state must 

provide to avoid infringing 

constitutional rights.’’ The commenter 

also argued that the EPA itself has relied 

on the existence of an affirmative 

defense to defend against a challenge to 

the achievability of an emission 

limitation in a FIP. To support this 

argument, the commenter quoted from 

the court’s opinion in Montana 

Sulphur.63

Response: For the reasons provided 

above regarding commenters’ due 

process claims, the EPA also disagrees 

with their claims that eliminating 

affirmative defense provisions in SIPs 

would result in the penalty provisions 

of the CAA being facially in violation of 

the Eighth Amendment. Similarly, if a 

party believes that the penalties 

assessed in any civil enforcement action 

do violate the Eighth Amendment, they 

can raise a challenge that the specific 

SIP provision at issue ‘‘as applied’’ in 

that instance violates the U.S. 

Constitution. As with the commenters’ 

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due process arguments, the EPA 

believes that Congress has already 

adequately addressed their concerns 

about potential unfair punishment for 

violations by authorizing courts to 

consider a range of factors in 

determining what remedies to impose 

for a particular violation, including the 

explicit factors for consideration in 

imposition of civil penalties as well as 

other factors as justice may require. 

The EPA acknowledges that is has 

previously relied on affirmative defense 

provisions as a mechanism to mitigate 

penalties where a violation was beyond 

the control of the owner or operator. 

These actions, however, predated the 

court’s decision in NRDC v. EPA and the 

EPA has since revised its approach to 

affirmative defense provisions in its 

own rulemaking actions. In addition, 

the EPA believes that the penalty 

criteria in section 113(e) provide a 

similar function and the commenters do 

not explain why they believe these 

explicit statutory factors do not provide 

sufficient relief from the imposition of 

an allegedly unconstitutionally 

excessive penalty. 

31. Comments that the EPA should 

impose a deadline of 12 months for 

states to respond to this SIP call with 

respect to affirmative defense 

provisions. 

Comment: An environmental 

organization commented that the EPA 

should require affected states to make 

the required SIP revisions within 12 

months, rather than the 18 months 

proposed in the February 2013 proposal 

and the SNPR. The commenter claimed 

that communities near large sources 

have been suffering for decades and 

individuals are suffering adverse health 

effects because of the emissions from 

sources that are currently allowed by 

deficient SIP provisions. The 

commenter also stated that the EPA has 

recognized that excess emissions 

allowed by the SIP provisions subject to 

the SIP call are continuing to interfere 

with attainment and maintenance of the 

NAAQS and that this justifies imposing 

a shorter schedule for states to respond 

to the SIP call. 

Response: The EPA acknowledges the 

concerns expressed by the commenters 

and the importance of providing 

environmental protection. However, as 

explained in the February 2013 proposal 

and in section IV.D.14 of this document, 

the EPA believes that providing states 

with the full 18 months authorized by 

section 110(k)(5) is appropriate in this 

action. The EPA is taking into 

consideration that state rule 

development and the associated 

administrative processes can be 

complex and time-consuming. This is 

particularly true where states might 

elect to consider more substantial 

revision of a SIP emission limitation, 

rather than merely removal of the 

impermissible automatic or 

discretionary exemption or the 

impermissible affirmative defense 

provision. In addition, the EPA believes 

that providing states with the full 18 

months will be more likely to result in 

timely SIP submissions that will meet 

CAA requirements and provide the 

ultimate outcome that the commenters 

seek. Some states subject to the SIP call 

may be able to revise their deficient SIP 

provisions more quickly, and the EPA is 

committed to working with states to 

revise these provisions consistent with 

CAA requirements in a timely fashion. 

For these reasons, the EPA does not 

agree that it would be reasonable to 

provide less than the 18-month 

maximum period allowed under the 

CAA for states to submit SIP revisions 

in response to the SIP call. 

32. Comments that the EPA should 

encourage states to add reporting and 

notification provisions into their SIPs. 

Comment: A commenter urged the 

EPA to encourage states to make 

information about excess emissions 

events easily and quickly accessible to 

the public. The commenter claimed that 

it is unacceptable to make it difficult for 

members of the public to obtain 

information about potential harmful 

exposure to pollutants and that state 

‘‘open-record’’ request laws are 

inadequate, particularly when the 

public is not informed that an event 

occurred. The commenter also asserted 

that reporting provisions enhance 

compliance and cited to the Toxic 

Release Inventory program’s success in 

driving pollution reduction. The 

commenter argued that 

contemporaneous reporting of the 

conditions surrounding a violation, the 

cause and the measures taken to limit or 

prevent emissions ensure that 

stakeholders can respond in real time 

and also target enforcement efforts to 

violations where further action is 

warranted. As support for this approach, 

the commenter pointed to Jefferson 

County, Kentucky, as a local air quality 

control area that has already corrected 

problematic regulations in advance of 

this SIP call and also noted that the 

County included notification and 

reporting requirements, recognizing that 

they would reduce the burden on the 

government in trying to calculate the 

level of excess emissions and also help 

in responding to citizen inquiries about 

such events. 

Response: The EPA agrees with the 

commenter that reporting and 

notification provisions can ease the 

burden on government agencies by 

placing the burden on the entity that is 

in the best position to calculate the level 

of excess emissions and also provide 

other relevant information regarding 

such events. In addition, to make this 

information available to the public 

quickly allows for a timely response if 

there is any health concern. An 

increased level of communication 

between industry and residents also 

serves to build a better community 

relationship and partnership. The EPA 

also supports such requirements as 

components of SIP emission limitations 

because they facilitate effective 

compliance assurance. However, the 

EPA does not believe that the Agency 

should create a separate federal 

requirement addressing this issue 

beyond general CAA requirements at 

this time. 

33. Comments that this SIP call action 

concerning affirmative defense 

provisions is being taken pursuant to 

sue-and-settle tactics. 

Comment: One commenter alleged 

that the action proposed in the EPA’s 

SNPR has an ‘‘impermissible sue-andsettle genesis’’ and that the EPA is 

attempting to grant as much of Sierra 

Club’s petition as it can ‘‘regardless of 

the wisdom or permissibility of doing 

so.’’ 

Response: The EPA disagrees with the 

commenter’s allegation that the EPA’s 

proposed action in the SNPR is 

inappropriate because it is the result of 

‘‘sue-and-settle’’ actions. This is a 

rulemaking in which the EPA is taking 

action to respond to a petition for 

rulemaking, and it has undergone a full 

notice-and-comment rulemaking 

process as provided for in the CAA. 

This issue is addressed in more detail in 

section V.D.1 of this document. 

34. Comments that affirmative defense 

provisions do not alter or eliminate 

federal court jurisdiction and therefore 

do not violate CAA sections 113 or 304. 

Comment: Two commenters argued 

that SIP affirmative defense provisions 

do not in fact interfere with the rights 

of litigants to pursue enforcement 

consistent with their rights under the 

citizen suit provision of CAA section 

304, because plaintiffs have the right to 

bring a citizen suit despite the existence 

of affirmative defense provisions. One 

commenter cited at least four instances 

in the last few years in which 

environmental groups filed enforcement 

actions against sources in federal 

district court based on alleged emissions 

events for which the companies asserted 

affirmative defenses. The commenters 

stated that courts applied the affirmative 

defense provision criteria and the 

criteria of section 113(e) to determine 

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whether penalties were appropriate for 

alleged violations and did not dismiss 

plaintiffs’ claims for lack of jurisdiction. 

According to the commenters, 

affirmative defense provisions place 

additional burden on the sources, not 

plaintiffs, to demonstrate that the 

criteria of an affirmative defense are 

met. 

Response: The commenters argued 

that affirmative defense provisions are 

not inconsistent with the statutory 

requirements of section 304, because 

citizen groups still bring enforcement 

actions for events where companies may 

raise an affirmative defense. Even if this 

were so, the EPA disagrees with the 

commenters that this establishes that 

affirmative defense provisions are 

consistent with CAA requirements. The 

mere existence of enforcement actions 

does not negate the fact that affirmative 

defense provisions interfere with 

effective enforcement of SIP emission 

limitations according to CAA section 

304. More to the point, affirmative 

defense provisions purport to alter or 

eliminate the statutory jurisdiction of 

courts to determine liability or to 

impose remedies for violations, which 

makes the provisions inconsistent with 

the grant of authority in sections 113 

and 304. The court’s decision in NRDC 

v. EPA was not based on the question 

of whether plaintiffs could still try to 

bring an enforcement case for violations 

of the EPA regulation at issue; the case 

was decided on the grounds that the 

EPA when creating regulations has no 

authority to limit or eliminate the 

jurisdiction of the courts. As explained 

in the SNPR and this document, the 

EPA believes that the same principle 

applies to states when creating SIP 

provisions. 

35. Comments that this action may 

increase the chance of catastrophic 

failure at facilities. 

Comment: One commenter expressed 

a concern that eliminating affirmative 

defense provisions applicable to 

emissions during SSM events could 

increase the potential for environmental 

harm caused by catastrophic failure by 

outlawing and penalizing the emissions 

during SSM events that have previously 

been allowed or shielded from liability 

through affirmative defense provisions. 

As an example, the commenter argued 

that refineries and gas plants must be 

allowed to vent VOCs to the atmosphere 

on the rare occasion that there is an 

equipment malfunction that could 

otherwise cause an explosion that might 

destroy the plant and surrounding 

neighborhood. The commenter 

speculated that the threat of costly new 

fines inherent with the removal of 

affirmative defense provisions could 

cloud plant operators’ thinking when 

they make safety decisions. The 

commenter contended that allowing 

rare, safely controlled releases of 

emissions would invariably be better for 

both the natural and human 

environment than the damage from a 

catastrophic explosion. 

Response: Although the comment 

refers to SSM events generally, the only 

specific concern raised by the 

commenter concerning affirmative 

defense provisions is that if they are not 

allowed in SIPs, this may lead to an 

increase in malfunction-related 

catastrophic events. The EPA does not 

agree with the commenter’s view that 

removal of affirmative defense 

provisions may increase environmental 

harm related to catastrophic events. The 

EPA believes that it is unlikely the 

availability or unavailability of an 

affirmative defense will affect a 

responsible and competent source 

operator’s response to a risk of 

explosion. First, an explosion presents 

much more serious and more certain 

adverse economic consequences for the 

source than does the specter of a 

potential enforcement action for a CAA 

violation, especially because 

enforcement agencies and courts are 

likely to exercise leniency if the 

violation was the result of an 

unpreventable malfunction. Second, 

even if an affirmative defense were 

available, it is only used after initiation 

of an enforcement proceeding, and 

successful assertion of such a defense in 

an enforcement proceeding depends on 

meeting all affirmative defense criteria 

and is not guaranteed. The EPA does not 

believe that a responsible and 

competent source operator’s actions in 

an emergency situation would be 

influenced by speculation that if the 

source is subject to an enforcement 

action in the future, there may be a 

defense to penalties available. 

Moreover, as explained in detail in 

the SNPR and this document, the court’s 

decision in NRDC v. EPA held that 

section 113 and section 304 preclude 

EPA authority to create affirmative 

defense provisions in the Agency’s own 

regulations imposing emission 

limitations on sources, because such 

provisions purport to alter the 

jurisdiction of federal courts to assess 

liability and impose penalties for 

violations of those limits in private civil 

enforcement cases. The EPA believes 

that the reasoning of the court in that 

decision indicates that the states, like 

the EPA, have no authority in SIP 

provisions to alter the jurisdiction of 

federal courts to assess penalties for 

violations of CAA requirements through 

affirmative defense provisions. If states 

lack authority under the CAA to alter 

the jurisdiction of the federal courts 

through affirmative defense provisions 

in SIPs, then the EPA lacks authority to 

approve any such provision in a SIP. 

The EPA notes that the court in NRDC 

v. EPA did not indicate that the 

statutory provisions should be 

interpreted differently based on 

speculation that a given source operator 

might allow a catastrophic explosion 

because of the absence of an affirmative 

defense. 

36. Comments that the SNPR did not 

meet the procedural requirements of 

section 307(d) because the EPA failed to 

provide its legal interpretations or 

explain the data relied upon in this 

rulemaking. 

Comment: Commenters claimed that 

the EPA violated the procedural 

requirements of the CAA in the SNPR. 

The commenters asserted that the EPA 

designated this rulemaking a section 

307(d) action, and the commenters 

claimed that the EPA did not follow the 

procedures required in section 307(d). 

The commenters claimed that the EPA 

failed to provide a statement of basis 

and purpose that includes ‘‘the major 

legal interpretations and policy 

consideration underlying the proposed 

rule.’’ 

In particular, the commenters argued 

that the EPA did not provide required 

information with regard to its proposed 

SIP call concerning the affirmative 

defense provisions in the Texas SIP. 

Commenters claimed that the SNPR is 

deficient because it does not address: (i) 

Why the Fifth Circuit decision in 

Luminant Generation v. EPA does not 

control the present action; (ii) on what 

basis the EPA believes it may disregard 

the judgment in Luminant Generation v. 

EPA; (iii) why the DC Circuit decision, 

which does not address the Texas SIP, 

should take precedence over the 

Luminant Generation v. EPA decision; 

(iv) on what basis the EPA believes that 

the DC Circuit may reach a different 

result than the Fifth Circuit as to the 

affirmative defenses in the Texas SIP; 

and (v) the grounds for ‘‘acquiescing’’ to 

the DC Circuit decision in NRDC v. EPA, 

which specifically states that it does not 

apply to SIP revisions, and ignoring the 

relevant holding in the Fifth Circuit. 

Commenters cited several cases 

claiming that the DC Circuit has held 

that, unlike under the Administrative 

Procedure Act (APA), under CAA 

section 307(d) the EPA is required to 

give a detailed explanation of its 

reasoning and that commenters should 

not be required to ‘‘divine the agency’s 

unspoken thoughts.’’ 

Response: The EPA disagrees with the 

commenters’ premise. The EPA did 

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64See, e.g., ‘‘National Emission Standards for 

Hazardous Air Pollutants Residual Risk and 

Technology Review for Flexible Polyurethane Foam 

Production; Final rule,’’ 79 FR 48073 (August 15, 

2014) (announcing decision not to finalize the 

proposed affirmative defense); ‘‘National Emission 

Standards for Hazardous Air Pollutants: Generic 

Maximum Achievable Control Technology 

Standards; and Manufacture of Amino/Phenolic 

Resins; Final rule,’’ 79 FR 60897 (October 8, 2014) 

(announcing decision not to finalize the proposed 

affirmative defense); ‘‘Oil and Natural Gas Sector: 

Reconsideration of Additional Provisions of New 

Source Performance Standards; Final rule,’’ 79 FR 

79017 (December 31, 2014) (removing affirmative 

defense from regulations); and ‘‘National Emission 

Standards for Hazardous Air Pollutants for Major 

Sources: Industrial, Commercial, and Institutional 

Boilers and Process Heaters; Proposed rule,’’ 80 FR 

3089 (January 21, 2015) (proposing to remove 

affirmative defense from regulations). 

discuss the Luminant Generation v. EPA 

decision in the SNPR and also 

explained in detail why it believes that 

the logic of the DC Circuit’s decision in 

NRDC v. EPA supports this SIP call 

action for affirmative defense 

provisions. Specifically, the EPA 

recognized that both the Fifth Circuit 

and the DC Circuit were evaluating the 

same fundamental question—whether 

section 113 and section 304 preclude 

the creation of affirmative defense 

provisions that alter or eliminate the 

jurisdiction of federal courts to 

determine liability and impose remedies 

for violations of CAA requirements in 

judicial enforcement actions. The EPA 

explained that, after reviewing the 

NRDC v. EPA decision and the 

Luminant Generation v. EPA decision, 

the Agency determined that its prior 

interpretation of the CAA, as advanced 

in both courts, is not the best reading of 

the statute. Indeed, it is significant that 

the Luminant court upheld the EPA’s 

approval of affirmative defense 

provisions for unplanned events (i.e., 

malfunctions) and the disapproval of 

affirmative defenses for planned events 

(i.e., startup, shutdown and 

maintenance) specifically because the 

court deferred to the Agency’s 

reasonable interpretation of ambiguous 

statutory provisions in the case at hand. 

In the SNPR, the EPA explained point 

by point why it now believes that the 

decision of the DC Circuit in NRDC v. 

EPA reflected the better reading of 

section 113 and section 304 and thus 

that the Agency no longer interprets the 

CAA to permit affirmative defenses in 

SIP provisions. Therefore, the EPA 

believes the Fifth Circuit could also take 

a different view of the reasonableness of 

the EPA’s resolution of ambiguous 

provisions after reviewing the EPA’s 

current interpretation of the statute. 

37. Comments that the EPA has 

recently approved affirmative defense 

provisions through various SIP actions 

and, therefore, these provisions are 

proper under the EPA’s interpretation of 

the CAA. 

Comment: One commenter noted that 

the EPA has never taken issue with the 

affirmative defense provisions in states’ 

SIPs across the many instances where 

the EPA has reviewed the states’ later 

SIP submissions. The implication of the 

commenters’ argument is that if the EPA 

has previously approved a SIP 

submission and directly or indirectly 

reapproved an affirmative defense 

provision in the past, this means that 

the affirmative defense provision still 

meets CAA requirements. 

Response: The EPA disagrees with 

this comment. As explained in the 

EPA’s response in section VIII.D.18 of 

this document, when the EPA takes 

final action on a state’s SIP submission, 

this does not necessarily entail 

reexamination and reapproval of every 

provision in the existing SIP. The EPA 

often only examines the specific SIP 

provision the state seeks to revise in the 

SIP submission, which may not include 

any affirmative defense provisions. To 

the extent the EPA did review and 

approve any affirmative defense 

provision consistent with its prior 

interpretation of the CAA that narrowly 

tailored affirmative defenses were 

appropriate, the EPA has fully 

explained why it is now revising that 

interpretation such that past action 

based on the earlier interpretation 

would no longer provide precedent for 

the EPA’s actions. As part of this final 

action, applying its revised SSM Policy, 

the EPA is taking action to address 

affirmative defense provisions in SIPs. 

Since the issuance of the court’s opinion 

in NRDC v. EPA, the EPA has similarly 

taken steps in its own ongoing NSPS 

and NESHAP rulemakings to ensure that 

any existing affirmative defense 

provisions are removed and that no 

affirmative defenses are proposed or 

finalized.64

38. Comments that affirmative defense 

provisions function as structured state 

‘‘enforcement discretion’’ and are an 

important tool for states to prioritize 

enforcement activities. 

Comment: A state commenter 

characterized the affirmative defense 

contained in the state’s SIP as an 

‘‘enforcement discretion’’ tool that 

supports the state’s regulation of excess 

emissions during malfunction events 

and promotes preventive measures, 

proper monitoring and reporting by 

sources. The state asserted that removal 

of the affirmative defense provision 

from the SIP would require the state to 

address and track violations that are not 

a high priority to the state agency. The 

state argued that the affirmative defense 

provision provides certainty to the 

regulated community by providing 

structure to how the state will exercise 

its enforcement discretion. The state 

expressed concern that without the 

affirmative defense, there will be 

uncertainty for the regulated community 

and less incentive for sources to make 

repairs and submit excess emissions 

reports promptly. The commenter 

explained that state law requires 

reporting of emission events that exceed 

an established ‘‘reportable’’ quantity 

and that this prompt reporting allows 

the state agency to evaluate each event 

reported quickly. In investigating 

reports of emission events, the state 

claimed, it ‘‘exercises enforcement 

discretion only in cases in which it 

determines that each affirmative defense 

criteria is met,’’ and the state claimed 

that elimination of the affirmative 

defense provision would result in an 

increase of unavoidable emissions being 

treated as violations. In general, the 

state objected to the elimination of the 

affirmative defense provision because it 

would strain the state agency’s 

enforcement resources. 

Response: These comments 

concerning the state’s use of affirmative 

defense criteria in structuring the 

exercise of its enforcement discretion 

(e.g., determining whether to bring an 

enforcement action or to further 

investigate an emissions events) appear 

to be based on a misunderstanding of 

the SNPR. This SIP call action directing 

states to remove affirmative defense 

provisions from SIPs would not prevent 

the state from applying such criteria in 

the exercise of its own enforcement 

discretion. For example, the state is free 

to consider factors such as a facility’s 

efforts to comply and the facility’s 

compliance history in determining 

whether to investigate an excess 

emissions event or whether to issue a 

notice of violation or otherwise pursue 

enforcement. Application of such 

criteria may well be useful and 

appropriate to the state in determining 

the best way to allocate its own 

enforcement resources. So long as a 

state does not use the criteria in such a 

way that the state fails to have a valid 

enforcement program as required by 

section 110(a)(2)(C), the state is free to 

use criteria like those of an affirmative 

defense as a way to ‘‘structure’’ its 

exercise of its own enforcement 

discretion. 

However, as explained in the SNPR, 

the EPA’s view is that SIPs cannot 

include affirmative defense provisions 

that alter the jurisdiction of the federal 

court to assess penalties in judicial 

enforcement proceeding for violation of 

CAA requirements. The EPA has 

determined that the specific affirmative 

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defense provisions at issue in the SIP of 

the state commenter are inconsistent 

with CAA requirements for SIP 

provisions. In addition, the EPA 

interprets the CAA to bar ‘‘enforcement 

discretion’’ provisions in SIPs that 

operate to impose the enforcement 

discretion decisions of the state upon 

the EPA or any other parties who may 

seek to enforce pursuant to section 304. 

Pursuant to the requirements of sections 

110(k), 110(l) and 193, the EPA has both 

the authority and the responsibility to 

evaluate SIP submissions to assure that 

they meet the requirements of the CAA. 

Pursuant to section 110(k)(5), the EPA 

has authority and discretion to take 

action to require states to revise 

previously approved SIP provisions if 

they do not meet CAA requirements. 

39. Comments that requiring states to 

adopt emissions standards that are not 

achievable at all times and then 

expecting courts to render those 

standards lawful by employing 

discretion in the assessment of penalties 

is contradictory to CAA section 

307(b)(2), which mandates preenforcement review. 

Comment: Commenters claimed that 

courts have consistently held that 

regulators cannot rely on enforcement 

discretion to establish the achievability 

of emission limitations. The 

commenters referred to a 1973 case 

addressing NSPS regulations in which 

they claimed the court remanded the 

standard to the EPA to support an ‘‘at 

all times’’ standard. 

Commenters further asserted that 

reliance on the discretion of judges to 

decide whether and to what extent 

penalties are appropriate is also not 

lawful. The commenters claimed that if 

a state establishes an emission 

limitation on the basis that it is 

achievable, then the standard must be 

achievable under all circumstances to 

which it applies. The commenters 

argued that if a state adopts an emission 

limitation that is not achievable under 

all conditions, then the state must 

explain how the standard can be 

reasonably enforced. The commenters 

concluded that a numerical emission 

limitation that cannot be achieved by 

sources at all times is not enforceable 

because no amount of penalty can deter 

the violating conduct. The commenters 

recognized that it is reasonable for states 

to exercise enforcement discretion 

under circumstances when an emission 

limitation cannot be met but argued that 

it is not reasonable to adopt a SIP that 

puts sources in a state of repeated 

noncompliance. 

Commenters further claimed that the 

decision in NRDC v. EPA, while 

allowing sources to argue unjust 

punishment should not be imposed, 

conflicts with the CAA’s requirements 

for pre-enforcement review. The 

commenters stated that emission 

limitations that could have been 

challenged at the time of promulgation 

are not subject to judicial review in an 

enforcement proceeding. Thus, the 

commenters claimed that any challenges 

to the achievability of a SIP emission 

limitation must be made at the time the 

emission limitation is promulgated and 

that judges will not consider such 

arguments in the context of an 

enforcement action. The commenters 

argued that forcing states to adopt 

unachievable standards and then 

prohibiting them from including an 

affirmative defense for penalties for 

unavoidable exceedances creates a 

dilemma Congress sought to avoid. 

Response: A number of the arguments 

that the commenters are raising appear 

to go beyond the scope of the affirmative 

defense issues in the SNPR. In the 

SNPR, the EPA revised its prior 

proposal with respect to issues related 

exclusively to affirmative defense 

provisions in SIPs. These comments are 

similar to an argument that any period 

during which an emission limitation 

cannot be met must be deemed not to 

be a violation of the standard. The EPA 

is addressing these types of issues, to 

the extent that they were raised in 

comments on the February 2013 

proposal. The EPA does note, however, 

that the Agency is not requiring states 

to adopt standards that cannot be met 

and then providing that states rely only 

on enforcement discretion to address 

periods of noncompliance. As the EPA 

has already noted, states may choose to 

adopt standards that are different from 

the underlying standards for periods 

where the underlying standards cannot 

otherwise be met. 

The EPA also disagrees with the 

comments that the holding in NRDC v. 

EPA is inconsistent with section 

307(b)(2) that provides that regulations 

that could have been challenged at 

promulgation cannot later be challenged 

in an enforcement action. Nothing in 

section 307(b) limits the ability of the 

court to consider the criteria of section 

113(e), such as good faith efforts of a 

source to comply in assessing penalties. 

Neither the decision in NRDC v. EPA 

nor this SIP call action requires states to 

adopt standards that cannot be met. 

Moreover, the public, including 

regulated sources, will be able to 

comment on the revised emission 

limitations developed by states in 

response to this SIP call. If an interested 

party believes that the state has adopted 

unachievable emission limitations, that 

party can challenge such standards at 

the time of adoption. 

40. Comments that the EPA should 

announce that it no longer recognizes 

existing affirmative defense provisions, 

effective immediately. 

Comment: Commenters claimed that 

because the court held in NRDC v. EPA 

that the EPA was without authority to 

interpret the CAA to allow affirmative 

defenses, the EPA should explicitly 

state that it no longer recognizes such 

provisions immediately. The 

commenters argued that by proceeding 

under its authority under section 

110(k)(5), the EPA is providing states 18 

months to remove the affirmative 

defense provisions and that thereafter 

the EPA will take additional time to act 

upon those SIP revisions under section 

110(k). The commenters argued that this 

in effect allows sources to continue 

relying on affirmative defense 

provisions that are not consistent with 

CAA requirements for a period of years 

into the future. Because the EPA did not 

have authority to approve the 

affirmative defense provisions in the 

first instance, the commenters 

contended that the Agency should 

simply declare that the affirmative 

defense provisions are now null and 

void. 

Response: The EPA understands the 

concerns raised by the commenters but 

does not agree that it is inappropriate 

for the Agency to proceed under section 

110(k)(5). The affirmative defense 

provisions at issue in this action are part 

of the EPA-approved SIPs for the 

affected states. The EPA, as well as 

states, cannot unilaterally change 

provisions of the approved SIP without 

following appropriate notice-andcomment procedures. To the extent that 

the commenters were advocating that 

the EPA should have proceeded under 

its authority to do error corrections 

under section 110(k)(6) rather than a SIP 

call under section 110(k)(5), the Agency 

has explained in detail in the February 

2013 proposal and this document why 

it is more appropriate to proceed via SIP 

call instead. Under the SIP call process, 

the EPA cannot declare approved SIP 

provisions null and void prior to state 

submission and Agency approval of 

revised SIP provisions. 

41. Comments that instead of acting 

through a nationwide SIP call action, 

the EPA should have worked 

individually with states to correct any 

deficient SIP provisions. 

Comment: One commenter stated that 

rather than using a SIP call to address 

SSM issues in existing SIPs, the EPA 

should work with each state’s air agency 

individually to identify and address SIP 

deficiencies and work through the 

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65Petition at 14. 66 Id. 

normal rulemaking and SIP revision 

processes to correct any identified 

problems. 

Response: The CAA provides a 

mechanism specifically for the 

correction of flawed SIPs. Section 

110(k)(5) provides: ‘‘Whenever the 

Administrator finds that the applicable 

implementation plan for any area is 

substantially inadequate to . . . comply 

with any requirement of [the Act], the 

Administrator shall require the State to 

revise the plan as necessary to correct 

such inadequacies.’’ This type of action 

is commonly referred to as a ‘‘SIP call.’’ 

The EPA, in this action, is using a SIP 

call to notify states of flawed provisions 

in SIPs and initiate a process for 

correction of those provisions. 

The EPA, largely through its Regional 

Offices, has individually reviewed each 

state provision subject to the SIP call. 

The EPA will work closely with each 

state, during future rulemaking actions 

taken by states to adopt SIP revisions 

and then subsequent actions by the 

EPA, to determine whether these 

adopted SIP revisions meet the mandate 

of the SIP call and are consistent with 

CAA requirements. As part of these 

actions, each individual state will work 

closely with the EPA to address the SIP 

deficiencies identified in this action. 

42. Comments that the EPA should 

not consider those comments on the 

February 2013 proposal that concern 

affirmative defense provisions in SIPs to 

no longer be relevant. 

Comment: One commenter disagreed 

with the EPA’s decision not to respond 

to certain comments submitted on the 

February 2013 proposal, to the extent 

the comments applied to issues related 

to affirmative defense provisions in SIPs 

generally or to issues related to specific 

affirmative defense provisions identified 

by the Petitioner, on a basis that those 

comments are no longer relevant if the 

EPA finalizes its action as proposed in 

the SNPR. According to the commenter, 

the EPA’s interpretation of the CAA has 

not changed so as to exclude the other 

SSM provisions in the proposed action, 

and this alone shows that the comments 

submitted on the February 2013 

proposal are still relevant. 

Response: The EPA’s proposed action 

on the Petition in the SNPR superseded 

the February 2013 proposal with respect 

to the issues related to affirmative 

defense provisions in SIPs. As 

explained in detail in the SNPR, after 

the February 2013 proposal, a federal 

court ruled that the CAA precludes 

authority of the EPA to create 

affirmative defense provisions 

applicable to private civil suits in its 

own regulations. As a result, the EPA 

issued the SNPR to propose applying a 

revised interpretation of the CAA to 

affirmative defense provisions in SIPs 

consistent with the reasoning of court’s 

decision in NRDC v. EPA. The EPA 

supplemented and revised its proposed 

response to the issues raised in the 

Petition to the extent they concern 

affirmative defenses in SIPs, and the 

EPA solicited comment on its revised 

proposed response. Because the EPA’s 

interpretation of the CAA with respect 

to the legal basis for affirmative defense 

provisions in SIPs changed from the 

time of the February 2013 proposal to 

the SNPR, comments on the February 

2013 proposal, to the extent they 

concern affirmative defenses in SIPs, are 

not relevant to the EPA’s revised 

proposed action. For example, 

comments on the February 2013 

proposal that argue that the EPA was 

wrong to interpret the CAA to allow 

affirmative defense provisions for 

malfunction events but not for startup or 

shutdown events are not relevant when 

the Agency’s interpretation of the CAA 

is now that no such affirmative defense 

provisions are valid. Similarly, 

comments that the criteria that the EPA 

previously recommended for valid 

affirmative defense provisions were too 

many, too few, too stringent or too lax 

simply have no relevance when the EPA 

does not interpret the CAA to allow any 

such affirmative defense provisions 

regardless of the number, nature or 

stringency of the criteria for qualifying 

for the affirmative defense. The EPA 

believes that it is reasonable for the 

Agency to determine that comments that 

have no bearing on the proposed action 

concerning affirmative defense 

provisions in the SNPR are not relevant. 

Because the EPA is finalizing the action 

on the Petition as proposed in the SNPR 

concerning affirmative defense 

provisions in SIPs, it is doing so based 

on evaluation of the comments that are 

relevant to the SNPR. 

V. Generally Applicable Aspects of the 

Final Action in Response to Request for 

the EPA’s Review of Specific Existing 

SIP Provisions for Consistency With 

CAA Requirements 

A. What the Petitioner Requested 

The Petitioner’s second request was 

for the EPA to find as a general matter 

that SIPs ‘‘containing an SSM 

exemption or a provision that could be 

interpreted to affect EPA or citizen 

enforcement are substantially 

inadequate to comply with the 

requirements of the Clean Air Act.’’ 65 In 

addition, the Petitioner requested that if 

the EPA finds such defects in existing 

SIPs, the EPA ‘‘issue a call for each of 

the states with such a SIP to revise it in 

conformity with the requirements or 

otherwise remedy these defective 

SIPs.’’ 66

The Petitioner argued that many SIPs 

currently contain provisions that are 

inconsistent with the requirements of 

the CAA. According to the Petitioner, 

these provisions fall into two general 

categories: (1) Exemptions for excess 

emissions by which such emissions are 

not treated as violations; and (2) 

enforcement discretion provisions that 

may be worded in such a way that a 

decision by the state not to enforce 

against a violation could be construed 

by a federal court to bar enforcement by 

the EPA under CAA section 113, or by 

citizens under CAA section 304. 

First, the Petitioner expressed concern 

that many SIPs have either automatic or 

discretionary exemptions for excess 

emissions that occur during periods of 

SSM. Automatic exemptions are those 

that, on the face of the SIP provision, 

provide that any excess emissions 

during such events are not violations 

even though the source exceeds the 

otherwise applicable emission 

limitations. These provisions preclude 

enforcement by the state, the EPA or 

citizens, because by definition these 

excess emissions are defined as not 

violations. Discretionary exemptions or, 

more correctly, exemptions that may 

arise as a result of the exercise of 

‘‘director’s discretion’’ by state officials, 

are exemptions from an otherwise 

applicable emission limitation that a 

state may grant on a case-by-case basis 

with or without any public process or 

approval by the EPA, but that do have 

the effect of barring enforcement by the 

EPA or citizens. The Petitioner argued 

that ‘‘[e]xemptions that may be granted 

by the state do not comply with the 

enforcement scheme of title I of the Act 

because they undermine enforcement by 

the EPA under section 113 of the Act or 

by citizens under section 304.’’ 

The Petitioner explained that all such 

exemptions are fundamentally at odds 

with the requirements of the CAA and 

with the EPA’s longstanding 

interpretation of the CAA with respect 

to excess emissions in SIPs. SIPs are 

required to include emission limitations 

designed to provide for the attainment 

and maintenance of the NAAQS and for 

protection of PSD increments. The 

Petitioner emphasized that the CAA 

requires that such emission limitations 

be ‘‘continuous’’ and that they be 

established at levels that achieve 

sufficient emissions control to meet the 

required CAA objectives when adhered 

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67Petition at 17. 

68See February 2013 proposal, 78 FR 12459 at 

12473–74 (February 22, 2013). 

to by sources. Instead, the Petitioner 

contended, exemptions for excess 

emissions through ‘‘loopholes’’ in SIP 

provisions often result in real-world 

emissions that are far higher than the 

level of emissions envisioned and 

planned for in the SIP. 

Second, the Petitioner expressed 

concern that many SIPs have provisions 

that may have been intended to govern 

only the exercise of enforcement 

discretion by the state’s own personnel 

but are worded in a way that could be 

construed to preclude enforcement by 

the EPA or citizens if the state elects not 

to enforce against the violation. The 

Petitioner contended that ‘‘any SIP 

provision that purports to vest the 

determination of whether or not a 

violation of the SIP has occurred with 

the state enforcement authority is 

inconsistent with the enforcement 

provisions of the Act.’’ 

After articulating these overarching 

concerns with existing SIP provisions, 

the Petitioner requested that the EPA 

evaluate specific SIP provisions 

identified in the separate section of the 

Petition titled, ‘‘Analysis of Individual 

States’ SSM Provisions.’’ 67 In that 

section, the Petitioner identified specific 

provisions in the SIPs of 39 states that 

the Petitioner believed to be 

inconsistent with the requirements of 

the CAA and explained in detail the 

basis for that belief. In the conclusion 

section of the Petition, the Petitioner 

listed the SIP provisions in each state 

for which it seeks a specific remedy. A 

more detailed explanation of the 

Petitioner’s arguments appears in the 

2013 February proposal.68

B. What the EPA Proposed 

In its February 2013 proposal, the 

EPA proposed to deny in part and to 

grant in part the Petition with respect to 

this two-part request. The EPA 

explained its longstanding 

interpretations of the CAA with respect 

to SIP provisions that apply to excess 

emissions during SSM events. The EPA 

also agreed that automatic exemptions, 

discretionary exemptions via director’s 

discretion, ambiguous enforcement 

discretion provisions that may be read 

to preclude EPA or citizen enforcement 

and affirmative defense provisions can 

interfere with the overarching objectives 

of the CAA, such as attaining and 

maintaining the NAAQS, protecting 

PSD increments and improving 

visibility. Such provisions in SIPs can 

interfere with effective enforcement by 

air agencies, the EPA and the public to 

assure that sources comply with CAA 

requirements, and such interference is 

contrary to the fundamental 

enforcement structure provided in CAA 

sections 113 and 304. 

Accordingly, the EPA evaluated each 

of the specific SIP provisions that the 

Petitioner identified to determine 

whether it is consistent with CAA 

requirements for SIP provisions. The 

EPA conducted this evaluation in light 

of its interpretations of the CAA 

reflected in the SSM Policy and recent 

court decisions pertaining to relevant 

issues. In section IX of the February 

2013 proposal, the EPA provided its 

proposed view with respect to each of 

these SIP provisions. The EPA solicited 

comment on its proposed grant or denial 

of the Petition for each of the specific 

SIP provisions and its rationale for the 

proposed action. Through consideration 

of the overarching issues raised by the 

Petition, and informed by the evaluation 

of the specific SIP provisions identified 

in the Petition as a group, the EPA also 

determined that it was necessary to 

reiterate, clarify and amend its SSM 

Policy. The EPA thus took comment on 

its interpretations of the CAA set forth 

in the SSM Policy in order to assure that 

it provides comprehensive and up-todate guidance to states concerning SIP 

provisions applicable to emissions from 

sources during SSM events. 

C. What Is Being Finalized in This 

Action 

The EPA is taking final action to deny 

in part and to grant in part the Petition 

with respect to the request to find 

specific SIP provisions inconsistent 

with the CAA as interpreted by the 

Agency in the SSM Policy. The EPA is 

also taking final action to grant the 

Petition on the request to make a finding 

of substantial inadequacy and to issue a 

SIP call for specific existing SIP 

provisions. The basis for the SIP call is 

that these provisions include an 

automatic exemption, a discretionary 

exemption, an inappropriate 

enforcement discretion provision, an 

affirmative defense provision, or other 

form of provision that is inconsistent 

with CAA requirements for SIP 

provisions. For those SIP provisions that 

the EPA has determined to be consistent 

with CAA requirements, however, the 

Agency is taking final action to deny the 

Petition and taking no further action 

with respect to those provisions. The 

specific SIP provisions at issue are 

discussed in detail in section IX of this 

document. 

As a result of its review of the issues 

raised by the Petition, the EPA is also 

through this action clarifying, reiterating 

and updating its SSM Policy to make 

certain that it provides comprehensive 

and up-to-date guidance to air agencies 

concerning SIP provisions to address 

emissions during SSM events, 

consistent with CAA requirements. 

With respect to automatic exemptions 

from emission limitations in SIPs, the 

EPA’s longstanding interpretation of the 

CAA is that such exemptions are 

impermissible because they are 

inconsistent with the fundamental 

requirements of the CAA. The EPA has 

reiterated this point in numerous 

guidance documents and rulemaking 

actions and is reaffirming that 

interpretation in this final action. By 

exempting emissions that would 

otherwise constitute violations of the 

applicable emission limitations, such 

exemptions interfere with the primary 

air quality objectives of the CAA (e.g., 

attainment and maintenance of the 

NAAQS), undermine the enforcement 

structure of the CAA (e.g., the 

requirement that all SIP provisions be 

legally and practically enforceable by 

states, the EPA and parties with 

standing under the citizen suit 

provision), and eliminate the incentive 

for emission sources to comply at all 

times, not solely during normal 

operation (e.g., incentives to be properly 

designed, maintained and operated so as 

to minimize emissions of air pollutants 

during startup and shutdown or to take 

prompt steps to rectify malfunctions). 

The court’s decision in Sierra Club v. 

Johnson concerning exemptions for 

SSM events in the EPA’s own 

regulations has reemphasized the fact 

that emission limitations under the CAA 

are required to be continuous. The court 

held that this statutory requirement 

precludes emission limitations that 

would allow periods during which 

emissions are exempt. Moreover, from a 

policy perspective, the EPA notes that 

the existence of impermissible 

exemptions in SIP provisions has the 

potential to lessen the incentive for 

development of control strategies that 

are effective at reducing emissions 

during certain modes of source 

operation such as startup and 

shutdown, even while such strategies 

could become increasingly helpful for 

various purposes, including attaining 

and maintaining the NAAQS. The issue 

of automatic exemptions for SSM events 

in SIP provisions is discussed in more 

detail in section VII.A of this document. 

With respect to discretionary 

exemptions from emission limitations in 

SIPs, the EPA also has a longstanding 

interpretation of the CAA that prohibits 

‘‘director’s discretion’’ provisions in 

SIPs if they provide unbounded 

discretion to allow what would amount 

to a case-specific revision of the SIP 

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69See, e.g., 1983 SSM Guidance at Attachment 

p. 2. 70 5 U.S.C. 553(e). 

without meeting the statutory 

requirements of the CAA for SIP 

revisions. In particular, the EPA 

interprets the CAA to preclude SIP 

provisions that provide director’s 

discretion authority to create 

discretionary exemptions for violations 

when the CAA would not allow such 

exemptions in the first instance. As with 

automatic exemptions for excess 

emissions during SSM events, 

discretionary exemptions for such 

emissions interfere with the primary air 

quality objectives of the CAA, 

undermine the enforcement structure of 

the CAA and eliminate the incentive for 

emission sources to minimize emissions 

of air pollutants at all times, not solely 

during normal operations. Through this 

action, the EPA is reiterating its 

interpretation of the provisions of the 

CAA that preclude unbounded 

director’s discretion provisions in SIPs. 

The EPA is also explaining two ways in 

which air agencies may elect to correct 

a director’s discretion type of 

deficiency. The issue of director’s 

discretion in SIP provisions applicable 

to SSM events is discussed in more 

detail in section VII.C of this document. 

With respect to enforcement 

discretion provisions in SIPs, the EPA 

also has a longstanding interpretation of 

the CAA that SIPs may contain such 

provisions concerning the exercise of 

discretion by the air agency’s own 

personnel, but such provisions cannot 

bar enforcement by the EPA or by other 

parties through a citizen suit.69 In the 

event such a SIP provision could be 

construed by a court to preclude EPA or 

citizen enforcement, that provision 

would be at odds with fundamental 

requirements of the CAA pertaining to 

enforcement. Such provisions in SIPs 

can interfere with effective enforcement 

by the EPA and the public to assure that 

sources comply with CAA requirements, 

and this interference is contrary to the 

fundamental enforcement structure 

provided in CAA sections 113 and 304. 

The issue of enforcement discretion in 

SIP provisions applicable to SSM events 

is discussed in more detail in section 

VII.D of this document. 

The EPA has evaluated the concerns 

expressed by the Petitioner with respect 

to each of the identified SIP provisions 

and has considered the specific remedy 

sought by the Petitioner. Through 

evaluation of comments on the February 

2013 proposal and the SNPR, the EPA 

has taken into account the perspective 

of other stakeholders concerning the 

proper application of the CAA and the 

Agency’s preliminary evaluation of the 

specific SIP provisions identified in the 

Petition. In many instances, the EPA has 

concluded that the Petitioner’s analysis 

is correct and that the provision in 

question is inconsistent with CAA 

requirements for SIPs. For those SIP 

provisions, the EPA is granting the 

Petition and is simultaneously making a 

finding of substantial inadequacy and 

issuing a SIP call to the affected state to 

rectify the specific SIP inadequacy. In 

other instances, however, the EPA 

disagrees with the Petitioner’s analysis 

of the provision, in some instances 

because the analysis applied to 

provisions that have since been 

corrected in the SIP. For those 

provisions, the EPA is therefore denying 

the Petition and taking no further 

action. In summary, the EPA is granting 

the Petition in part, and denying the 

Petition in part, with respect to all of the 

specific existing SIP provisions for 

which the Petitioner requested a 

remedy. The EPA’s evaluation of each of 

the provisions identified in the Petition 

and the basis for the final action with 

respect to each provision is explained in 

detail in section IX of this document. 

D. Response to Comments Concerning 

the CAA Requirements for SIP 

Provisions Applicable to SSM Events 

The EPA received numerous 

comments, both supportive and adverse, 

concerning the Agency’s decision to 

propose action on the Petition with 

respect to the overarching issues raised 

by the Petitioner. A number of these 

comments also raised important issues 

concerning the rights of citizens to 

petition their government, the process 

by which the EPA evaluated the issues 

raised in the Petition and the relative 

authorities and responsibilities of states 

and the EPA under the CAA. Many 

commenters raised the same conceptual 

issues and arguments. For clarity and 

ease of discussion, the EPA is 

responding to these overarching 

comments, grouped by topic, in this 

section of this document. The responses 

to more specific substantive issues 

raised by commenters on the EPA’s 

interpretation of the CAA in the SSM 

Policy appear in other sections of this 

document that focus on particular 

aspects of this action. 

1. Comments that the EPA should not 

have responded to the petition for 

rulemaking or that the EPA was wrong 

to do so. 

Comment: Some commenters opposed 

the EPA’s proposed action on the 

Petition in the February 2013 proposal 

entirely and alleged that it is ‘‘sue-andsettle rulemaking’’ or ‘‘regulation by 

litigation.’’ Commenters stated that the 

‘‘proposed rule and corresponding 

aggressive deadline schedule stem 

from’’ a settlement of litigation brought 

by Sierra Club to respond to the 

Petition. 

Some commenters expressed concern 

that the EPA’s proposed action was 

made in response to a settlement 

agreement, through a process that, the 

commenters alleged, did not permit any 

opportunity for participation by affected 

parties. Other commenters, believing 

that the EPA’s proposed action was 

taken to fulfill a consent decree 

obligation, argued that consent decree 

deadlines ‘‘often do not allow EPA 

enough time to write quality 

regulations’’ or would not allow 

‘‘opportunity to properly research and 

investigate the effect of State SSM 

provisions or the State’s ability to meet 

the NAAQS, or to determine whether 

the SSM provisions are somehow 

inconsistent with the CAA.’’ The 

commenters alleged that the process 

‘‘bypasses the traditional rulemaking 

concepts of transparency and effective 

public participation’’ and ‘‘sidesteps the 

proper rulemaking channels and 

undercuts meaningful opportunities for 

those affected by the proposed rule to 

develop and present evidence that 

would support a competing and fully 

informed viewpoint on the substantive 

issues during the rulemaking process.’’ 

Response: The EPA believes that these 

comments reflect fundamental 

misunderstandings about this action. 

This is a rulemaking in which the EPA 

is taking action to respond to a petition 

for rulemaking, and it has undergone a 

full notice-and-comment rulemaking 

process as provided for in the CAA. In 

the February 2013 proposal, the EPA 

proposed to take action on the Petition. 

Under the CAA, the APA and the U.S. 

Constitution, citizens have the right to 

petition the government for redress. For 

example, the APA provides that ‘‘[e]ach 

agency shall give an interested person 

the right to petition for the issuance, 

amendment, or repeal of a rule.’’ 70

When citizens file a petition for 

rulemaking, they are entitled to a 

response to such petition—whether that 

response is to grant the petition, to deny 

the petition, or to partially grant and 

partially deny the petition as has 

occurred in this rulemaking action. 

Some of these commenters expressed 

concern that the EPA’s action on the 

Petition was the result of the Agency’s 

obligations under a consent decree or 

settlement agreement and that this fact 

in some way invalidates the substantive 

action. First, the EPA notes that the 

action was undertaken not in response 

to a consent decree but rather in 

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71See Settlement Agreement executed November 

30, 2011, in the rulemaking docket at EPA–HQ– 

OAR–2012–0322–0039. 

72See ‘‘Proposed Settlement Agreement, Clean 

Air Act Citizen Suit’’ (notice of proposed settlement 

agreement; request for public comment), 76 FR 

54465 (September 1, 2011). 

73See ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls To Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown, and Malfunction; Notice of 

extension of public comment period,’’ 78 FR 20855 

(April 8, 2013), in the rulemaking docket at EPA– 

HQ–OAR–2012–0322–0126. 

74 421 U.S. 60 (1975). 

75 108 F.3d 1397 (D.C. Cir. 1997). 

response to a settlement agreement. 

Second, the EPA notes that this 

settlement agreement was entered into 

by the Agency and the Sierra Club in 

order to resolve allegations that the EPA 

was not correctly evaluating and acting 

upon SIP submissions from states. In 

particular, the Sierra Club claimed that 

the EPA was illegally ignoring existing 

deficiencies in the SIPs of many states, 

including existing allegedly deficient 

provisions concerning the treatment of 

excess emissions during SSM events, 

when acting on certain SIP submissions. 

As a result, the Sierra Club alleged, the 

EPA was acting in contravention of its 

obligations under the CAA and various 

consent decrees and thus should be held 

in contempt for failure to address these 

issues. In order to resolve these 

allegations, the EPA agreed only to take 

action on a petition for rulemaking and 

to take the action that it deemed 

appropriate after evaluation of the 

allegations in the petition. The terms of 

the settlement agreement underwent 

public comment and are a matter of 

public record and are in the docket for 

this rulemaking.71

The EPA does not enter into 

settlement agreements lightly, nor does 

the EPA enter into settlement 

agreements without following the full 

public process required by CAA section 

113(g), which the Agency followed in 

this case.72 The EPA solicited comment 

on the draft settlement agreement as 

required by section 113(g). In no case 

does the EPA enter into a settlement 

agreement that has not been officially 

reviewed not only by the Agency but 

also by the Department of Justice. Thus, 

contrary to the commenters’ 

implications, this rulemaking is the 

result of an appropriate settlement 

agreement that did undergo public 

comment and is legitimate. 

In acting on the Petition the EPA has 

followed all steps of a notice-andcomment rulemaking, as governed by 

applicable statutes, regulations and 

executive orders, including a robust 

process for public participation. When 

the EPA initially proposed to take action 

on the Petition, in February 2013, it 

simultaneously solicited public 

comment on all aspects of its proposed 

response to the issues in the Petition 

and in particular on its proposed action 

with respect to each of the specific 

existing SIP provisions identified by the 

Petitioner as inconsistent with the 

requirements of the CAA. In response to 

requests, the EPA extended the public 

comment period for this proposal to 

May 13, 2013, which is 80 days from the 

date the proposed rulemaking was 

published in the Federal Register and 

89 days from the date the proposed 

rulemaking was posted on the EPA’s 

Web site.73 The EPA deemed this 

extension appropriate because of the 

issues raised in the February 2013 

proposal. The EPA also held a public 

hearing on March 12, 2013. In response 

to this proposed action, the EPA 

received approximately 69,000 public 

comments, including over 50 comment 

letters from state and local governments, 

over 150 comment letters from industry 

commenters, over 25 comment letters 

from public interest groups and many 

thousands of comments from individual 

commenters. Many of these comment 

letters were substantial and covered 

numerous issues. 

Similarly, when the EPA ascertained 

that it was necessary to revise its 

proposed action on the Petition with 

respect to affirmative defenses in SIP 

provisions, the Agency issued the 

SNPR. In that supplemental proposal, in 

September 2014, the EPA fully 

explained the issues and took comment 

on the questions related to whether 

affirmative defense provisions are 

consistent with CAA requirements 

concerning the jurisdiction of courts in 

enforcement actions, and thus whether 

such provisions are consistent with 

fundamental CAA requirements for SIP 

provisions. The EPA provided a public 

comment period ending November 6, 

2014, which is 50 days from the date the 

SNPR was published in the Federal 

Register and 62 days from the date the 

SNPR was posted on the EPA’s Web 

site. The EPA believes that the comment 

period was sufficient given that the 

subject of the SNPR was limited to the 

narrow issue of whether affirmative 

defense provisions are consistent with 

CAA requirements. The EPA also held 

a public hearing on the SNPR on 

October 7, 2014 on the specific topic of 

the legitimacy of affirmative defense 

provisions in SIPs. In response to the 

SNPR, the EPA received over 20,000 

public comments, including at least 9 

comment letters from states and local 

governments, over 40 comment letters 

from industry commenters, at least 6 

comment letters from public interest 

groups, and many thousands of 

comments from individual commenters. 

2. Comments that EPA’s action on the 

Petition violates ‘‘cooperative 

federalism.’’ 

Comment: Many commenters asserted 

that the EPA’s proposed action on the 

Petition and the issuance of this SIP call 

violate principles of cooperative 

federalism because they impermissibly 

substitute the EPA’s judgment for that of 

the states in the development of SIPs. 

This argument was raised by both air 

agency and industry commenters. 

These commenters described the 

relationship between states and the EPA 

with respect to SIPs in general. The 

commenters stated that Congress 

designed the CAA as a regulatory 

partnership between the EPA and the 

states, i.e., a relationship based on 

‘‘cooperative federalism.’’ Under 

cooperative federalism, the commenters 

noted, the EPA has the primary 

responsibility to identify air pollutants 

that endanger the public health and 

welfare and to set national standards for 

those pollutants. By contrast, the states 

have primary responsibility to 

determine how to achieve those national 

standards by developing federally 

enforceable measures through SIPs. 

According to these commenters, 

however, once a state has made a SIP 

submission, the EPA’s role is relegated 

exclusively to the ministerial function 

of reviewing whether the SIP 

submission will result in compliance 

with the NAAQS. Similarly, the 

commenters claim that when EPA is 

evaluating in the context of a SIP call 

whether a state’s existing SIP continues 

to meet applicable CAA requirements, 

the only relevant question is whether 

the existing SIP will result in 

compliance with the NAAQS. Thus, the 

commenters claimed that by finding 

certain existing SIP provisions 

substantially inadequate because they 

are legally deficient to meet CAA 

requirements for SIP provisions, the 

EPA is usurping state authority under 

the cooperative-federalism structure of 

the CAA. 

To support this view, many 

commenters cited to the ‘‘Train-Virginia 

line of cases,’’ named for the U.S. 

Supreme Court case Train v. Natural 

Resources Defense Council, Inc.,74 and 

to the D.C. Circuit case Virginia v. 

EPA.75 The D.C. Circuit has described 

these cases as defining a ‘‘federalism 

bar’’ that constrains the EPA’s authority 

with respect to evaluation of state SIPs 

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76See, e.g., Michigan v. EPA, 213 F.3d 663, 687 

(D.C. Cir. 2000). 

77See 421 U.S. at 79. 

78See 78 FR 12459 at 12468; Background 

Memorandum at 1–3. 

79See Virginia v. EPA, 108 F.3d 1397, 1407 (D.C. 

Cir. 1997) (quoting Train, 421 U.S. at 79). 

80Section 110(a)(2) (emphasis added); see EPA v. 

EME Homer City Generation, L.P., 134 S. Ct. 1584, 

1600 (2014) (holding that section 110(a)(2) ‘‘speaks 

without reservation’’ regarding what ‘‘components’’ 

a SIP ‘‘ ‘shall’ include’’); H. Rept. 101–490, at 217 

(calling the provisions of section 110(a)(2)(A) 

through (M) ‘‘the basic requirements of SIPs’’). 

81The EPA notes that many of the specific SIP 

elements required in section 110(a)(2) are not 

themselves stated in terms of attainment and 

maintenance of the NAAQS. Instead, these 

requirements are part of the SIP structure that 

Congress deemed necessary to support 

implementation, maintenance and enforcement of 

the NAAQS, as well as to meet other objectives 

such as protection of PSD increments and visibility. 

82For example, to the extent the Train Court was 

construing section 110(a)(2)’s emission limitation 

provision, it is important to note that while that 

statutory section before the Train Court required 

approvable SIPs to include certain controls 

‘‘necessary to insure compliance with [the] primary 

or secondary standards’’ (i.e., the NAAQS), see CAA 

of 1970, Pub. L. 91–604, section 4(a), 84 Stat. 1676, 

1680 (December 31, 1970), that section now more 

broadly speaks of controls ‘‘necessary or 

appropriate to meet the applicable requirements of 

this chapter’’ (i.e., the CAA). Section 110(a)(2)(A) 

(emphasis added). Among the other relevant textual 

changes are the qualification that emission 

limitations and other controls be ‘‘enforceable,’’ id.; 

a statutory definition of ‘‘emission limitation’’ that 

adds requirements not contemplated by Train, 

compare Section 302(k), with Train, 421 U.S. at 78; 

as well as a recharacterization of section 110(a)(2)’s 

emission limitation requirement from one bearing 

on whether ‘‘[t]he Administrator shall approve such 

plan,’’ see Pub. L. 91–604, section 4(a), 84 Stat. at 

1680, to a requirement expressly directed at what 

‘‘[e]ach plan shall’’ include. 

83 421 U.S. at 79 (emphasis added) (footnotes 

omitted). 

under section 110.76 Many commenters 

asserted that this federalism bar limits 

the EPA’s oversight of state SIPs 

exclusively to whether a SIP will result 

in compliance with the NAAQS. The 

commenters evidently construe 

‘‘compliance with the NAAQS’’ very 

narrowly to mean the SIP will factually 

result in attainment of the NAAQS, 

regardless of whether the SIP provisions 

in fact meet all applicable CAA 

requirements (e.g., the requirement that 

the SIP emission limitations be 

continuous and enforceable). 

Accordingly, most of these commenters 

selectively quoted or cited a passage in 

Train,77 and similar passages in circuit 

court opinions following Train, for the 

proposition that the EPA cannot issue a 

SIP call addressing the SIP provisions at 

issue in this SIP call action. Some of 

these commenters asserted that if the 

EPA were to finalize this action, the 

states would have ‘‘nothing left’’ of their 

discretion in SIP development and 

implementation in the future. 

Response: The EPA agrees that the 

CAA establishes a framework for statefederal partnership based on 

cooperative federalism. The EPA does 

not, however, agree with the 

commenters’ characterization of that 

relationship. The EPA explained its 

view of the cooperative-federalism 

structure in the February 2013 proposal, 

especially the fact that under this 

principle both states and the EPA have 

authorities and responsibilities with 

respect to implementing the 

requirements of the CAA.78 The EPA 

believes that the commenters 

fundamentally misunderstand or 

inaccurately describe this action, as well 

as the ‘‘‘division of responsibilities’ 

between the states and the federal 

government’’ in section 110 that is 

described in the Train-Virginia line of 

cases.79

In CAA section 110(a)(1), Congress 

imposed the duty upon all states to have 

a SIP that provides for ‘‘the 

implementation, maintenance, and 

enforcement’’ of the NAAQS. In section 

110(a)(2), Congress clearly set forth the 

basic SIP requirements that ‘‘[e]ach such 

plan shall’’ satisfy.80 By using the 

mandatory ‘‘shall’’ in section 110(a)(2), 

Congress established a framework of 

mandatory requirements within which 

states may exercise their otherwise 

considerable discretion to design SIPs to 

provide for attainment and maintenance 

of the NAAQS and to meet other CAA 

requirements. In other sections of the 

Act, Congress also imposed additional, 

more specific SIP requirements (e.g., the 

requirement in section 189 that states 

impose RACM-level emission 

limitations on sources located in PM2.5

nonattainment areas). 

In particular, this SIP call action 

concerns whether SIP provisions satisfy 

section 110(a)(2)(A), which requires that 

each SIP ‘‘[shall] include enforceable 

emission limitations and other control 

measures, means, or techniques 

(including economic incentives such as 

fees, marketable permits, and auctions 

of emissions rights), as well as 

schedules and timetables for 

compliance, as may be necessary or 

appropriate to meet the applicable 

requirements of this chapter.’’ 

As explained in the February 2013 

proposal, the automatic and 

discretionary exemptions for emissions 

from sources during SSM events at issue 

in this action fail to meet this most basic 

SIP requirement and are also 

inconsistent with the enforcement 

requirements of the CAA. Similarly, the 

enforcement discretion provisions at 

issue in this action that have the effect 

of barring enforcement by EPA or 

citizens fail to meet this requirement for 

enforceable emission limitations by 

interfering with the enforcement 

structure of the CAA as established by 

Congress. The affirmative defense 

provisions at issue are similarly 

inconsistent with the requirement that 

SIPs provide for enforcement of the 

NAAQS and also contravene the 

statutory jurisdiction of courts to 

determine liability and to impose 

remedies for violations of SIP 

requirements. Each of these types of 

deficient SIP provisions is thus 

inconsistent with legal requirements of 

the CAA for SIP provisions. Contrary to 

the claims of many commenters, the 

EPA has authority and responsibility to 

assure that a state’s SIP provisions in 

fact comply with fundamental legal 

requirements of the CAA as part of the 

obligation to ensure that SIPs protect the 

NAAQS.81

The Train-Virginia line of cases 

affirms the plain language of the Act— 

that in addition to providing generally 

for attainment and maintenance of the 

NAAQS, all state SIPs must satisfy the 

specific elements outlined in section 

110(a)(2). Even setting aside that Train 

predated substantive revisions to the 

CAA that strengthened section 

110(a)(2)(A) in ways relevant here,82 the 

Train Court clearly stated that section 

110(a)(2) imposes additional 

requirements for state submissions to be 

accepted, independent of the general 

obligation to meet the NAAQS. Many 

commenters on the February 2013 

proposal selectively quoted or cited 

only portions of the following excerpt 

from Train, omitting or ignoring the 

portions emphasized here: 

The Agency is plainly charged by the Act 

with the responsibility for setting the 

national ambient air standards. Just as 

plainly, however, it is relegated by the Act 

to a secondary role in the process of 

determining and enforcing the specific, 

source-by-source emission limitations which 

are necessary if the national standards it has 

set are to be met. Under § 110(a)(2), the 

Agency is required to approve a state plan 

which provides for the timely attainment and 

subsequent maintenance of ambient air 

standards, and which also satisfies that 

section’s other general requirements. The Act 

gives the Agency no authority to question the 

wisdom of a State’s choices of emission 

limitations if they are part of a plan which 

satisfies the standards of § 110(a)(2) . . . . 

Thus [i.e., provided the state plan satisfies 

the basic requirements of § 110(a)(2)], so long 

as the ultimate effect of a State’s choice of 

emission limitations is compliance with the 

national standards for ambient air, the State 

is at liberty to adopt whatever mix of 

emission limitations it deems best suited to 

its particular situation.83

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84See id. (emphasis added). 

85See id. The EPA notes that section 110(a)(2) 

and other sections relevant to SIPs in fact contain 

numerous procedural and substantive requirements 

that air agencies must meet. Section 110(a) is not 

composed of a single sentence that directs states 

merely to attain the NAAQS; it is replete with legal 

requirements applicable to SIPs that help to assure 

that a SIP will successfully meet that objective. 

86See id. 

87As a related point, the EPA notes that 

commenters claiming that the proposed SIP call 

was a violation of cooperative federalism likewise 

typically did not address the existence or 

significance of sections 110(k), 110(l) and 193. All 

of these provisions indicate that the EPA has 

statutory authority and responsibility to approve or 

disapprove SIP submissions, based upon whether 

they meet applicable requirements of the CAA. The 

EPA fully explained its views concerning its 

authority and responsibility under these provisions 

in the February 2013 proposal. See 78 FR 12459 at 

12471, 12477–78, 12483–89; Background 

Memorandum at 2–3. 

88 696 F.3d 7, 29 (D.C. Cir. 2012) rev’d, 134 S. Ct. 

1584 (2014). 

89 Id. at 28. 

90 Id. at 38 (Rogers, J., dissenting). 

91See EPA v. EME Homer City Generation, L.P., 

134 S. Ct. 1584 (2014). 

92 Id. at 1600–01. 

93 Id. at 1601 (citing, inter alia, section 110(a)(2)). 

94See id. at 1593 (citing Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837 

(1984)). See, e.g., Oklahoma v. EPA, 723 F.3d 1201, 

1208 (10th Cir. 2013), cert. denied, 134 S. Ct. 2662 

(2014) (applying Chevron to uphold EPA’s 

disapproval of a SIP for noncompliance with 

regional haze requirements in section 110(a)(2)(J)); 

North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013), 

cert. denied, 134 S. Ct. 2662 (2014) (applying 

Chevron to uphold EPA’s disapproval of a SIP for 

noncompliance with interstate visibility 

requirements in section 110(a)(2)(D)(i)(II)); 

Luminant Generation v. EPA, 714 F.3d 841, 856 

(5th Cir. 2013), cert. denied, 134 S. Ct. 387 (2013); 

Mont. Sulphur & Chem. Co. v. United States EPA, 

666 F.3d 1174, 1180, 1189 (9th Cir. 2012), cert. 

denied, 133 S. Ct. 409 (2012) (‘‘The Clean Air Act 

gives the EPA significant national oversight over air 

quality standards, to be exercised pursuant to 

statutory specifications, and provides EPA with 

regulatory discretion in key respects relevant to SIP 

calls and determinations about the attainment of the 

NAAQS’’); Mich. Dep’t of Envtl. Quality v. Browner, 

230 F.3d 181, 184–85 (6th Cir. 2000) (‘‘Although 

states are given broad authority to design programs, 

the EPA has the final authority to determine 

whether a SIP meets the requirements of the 

CAA.’’). 

95 78 FR 12459 at 12489 & nn.89–90. 

96See EME Homer City Generation, L.P. v. EPA, 

696 F.3d at 29 (citing Michigan, 213 F.3d at 687; 

Virginia, 108 F.3d at 1410) (emphasis added). 

When read in its entirety, without 

omitting the portions italicized above, 

Train clearly does not stand for the 

proposition that SIPs must be judged 

exclusively on the basis of whether they 

will ensure attainment and maintenance 

of the NAAQS. To the contrary, the 

Court made clear that approvable SIP 

submissions must not only provide for 

attainment and maintenance of the 

NAAQS but must also satisfy section 

110(a)(2)’s ‘‘other general requirements 

. . . .’’ 84 Furthermore, while states 

have great latitude to select emission 

limitations, Train explained that those 

emission limitations must nevertheless 

be ‘‘part of a plan which satisfies the 

standards of § 110(a)(2) . . . .’’ 85

Finally, the EPA notes that many 

commenters quoting the final sentence 

excerpted above typically excluded the 

word ‘‘Thus,’’ which references the 

preceding sentence stating that SIPs 

must ‘‘satisfy [section 110(a)(2)]’s other 

general requirements.’’ 86 By omitting 

the word ‘‘thus,’’ and the passages 

concerning the obligation of states to 

comply with section 110(a)(2) and other 

obligations of the CAA, the commenters 

disregard the critical point that the EPA 

has the statutory responsibility to assure 

that state SIPs meet the specific 

requirements of the CAA, not merely 

that they provide for attainment of the 

NAAQS regardless of whether they meet 

other mandatory legal requirements.87

In short, the Train Court did not hold 

that SIPs must merely provide for 

attainment of the NAAQS even under 

the 1970 Act, much less the text of the 

CAA applicable today. To the contrary, 

the U.S. Supreme Court indicated that 

approvable state plans were also 

required to meet other legal 

specifications of the CAA for SIPs such 

as those in section 110(a)(2) and that the 

EPA’s responsibility is to determine 

whether they do so. The EPA’s own 

obligations with respect to evaluating 

SIPs under sections 110(k)(3), 110(l) and 

193 continue to provide this authority 

and responsibility today. 

After Train, one of the cases most 

frequently cited by commenters for its 

discussion of cooperative federalism 

was the D.C. Circuit’s decision in EME 

Homer City Generation, L.P. v. EPA, a 

case since overturned by the U.S. 

Supreme Court.88 In that case arising 

under section 110(a)(2), the D.C. Circuit 

vacated the EPA’s Cross-State Air 

Pollution Rule for two reasons, one 

being related to statutory interpretation 

of section 110(a)(2)(D)(i), the other being 

‘‘a second, entirely independent 

problem’’ based on the EPA’s purported 

overstep of the federalism bar identified 

in the Train-Virginia line of cases.89

After recounting a list of decisions that 

recognize the cooperative-federalism 

structure of the CAA, the D.C. Circuit 

concluded that even though states have 

the ‘‘primary responsibility’’ for 

implementing the NAAQS, in this case 

the states had no responsibility to 

address interstate transport until the 

EPA first quantified the obligations of 

the states. The dissent described the 

majority’s application of the TrainVirginia cases as ‘‘a redesign of 

Congress’s vision of cooperative 

federalism in implementing the CAA 

. . . .’’ 90 The commenters approvingly 

cited to the D.C. Circuit’s EME Homer 

City decision, evidently to illustrate the 

importance of states’ role under section 

110. That states are given the first 

opportunity to develop a SIP that 

complies with section 110 is not in 

dispute. What is in dispute are the 

authority and the responsibility of the 

EPA to take action when states fail to 

comply with all of the requirements for 

SIP provisions under the CAA, whether 

that requirement is to address interstate 

transport or to meet other specific legal 

requirements of the Act applicable to 

SIP provisions. 

The U.S. Supreme Court reversed the 

EME Homer City decision in June 

2014,91 rendering suspect the D.C. 

Circuit’s interpretation of the TrainVirginia line of cases, as well as 

rendering suspect the commenters’ even 

broader characterization of that 

interpretation as per se authorizing the 

states to create provisions such as the 

SSM exemptions and affirmative 

defenses at issue in this SIP call. The 

U.S. Supreme Court held that the 

touchstone for identifying the division 

of responsibility between the EPA and 

the states is the text of section 110(a)(2) 

itself.92 Although this SIP call involves 

different requirements of section 

110(a)(2) than the one at issue in EME 

Homer City—there, the interstate 

transport obligations of 

110(a)(2)(D)(i)(I)—the Court expressly 

held that ‘‘[n]othing in the Act 

differentiates the Good Neighbor 

Provision from the several other matters 

a State must address in its SIP.’’ 93 After 

the U.S. Supreme Court’s ruling, the 

EPA’s role under section 110’s 

cooperative-federalism framework—as 

the agency charged with reasonably 

interpreting the fundamental 

requirements of section 110(a)(2), and 

applying those reasonably interpreted 

requirements to state SIPs—cannot 

reasonably be in doubt.94

The touchstone of the cooperativefederalism concept outlined in the 

Train-Virginia line of cases is that, 

under the authority of section 110, the 

EPA may not legally or functionally 

require a state to adopt a specific control 

measure in its SIP in response to a SIP 

call.95 On this point, the DC Circuit’s 

opinion in EME Homer City was largely 

in line with Train, Virginia, and other 

DC Circuit cases. In that decision, the 

court described the Train-Virginia 

federalism bar as prohibiting the EPA 

‘‘from using the SIP process to adopt 

specific control measures.’’ 96 The EME 

Homer City court did not more broadly 

hold that section 110(a)(2) imposes no 

independent limits on state discretion 

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97 421 U.S. at 79 (emphasis added). 

98 Virginia v. EPA, 108 F.3d 1397, 1415 (D.C. Cir. 

1997) (holding that functionally, in that case, 

‘‘EPA’s alternative is no alternative at all’’); see also 

Appalachian Power Co. v. EPA, 249 F.3d 1032, 

1047 (D.C. Cir. 2001) (citing Virginia, 108 F.3d at 

1406, 1410) (‘‘We did not suggest [in Virginia] that 

under § 110 states may develop their plans free of 

extrinsic legal constraints. Indeed, SIP development 

. . . commonly involves decisionmaking subject to 

various legal constraints.’’). 

99 213 F.3d 663 (D.C. Cir. 2000). 

100 Id. at 687 (emphasis added). 

101 249 F.3d 1032, 1047 (D.C. Cir. 2001) (citing 

Virginia, 108 F.3d at 1410) (emphasis added). 

102See id. 

103 78 FR 12459 at 12489. 

104See, e.g., Michigan, 213 F.3d at 687. 

105 Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. 

2000) (quoting Union Elec. Co. v. EPA, 427 U.S. 

246, 256–57 (1976)); see Mont. Sulphur & Chem. 

Co. v. United States EPA, 666 F.3d 1174, 1181 (9th 

Cir. 2012), cert. denied, 133 S. Ct. 409 (2012) (‘‘The 

Clean Air Act gives the EPA significant national 

oversight power over air quality standards, to be 

exercised pursuant to statutory specifications, and 

provides the EPA with regulatory discretion in key 

respects relevant to SIP calls and determinations 

about the attainment of NAAQS.’’). 

by requiring the states to meet legal 

requirements for SIP provisions, or that 

the EPA is prohibited from either 

interpreting 110(a)(2)’s basic 

requirements or reviewing state SIPs for 

compliance with those requirements. 

Accordingly, the EPA believes that to 

the extent that the DC Circuit’s EME 

Homer City decision is relevant to this 

action, the decision in fact supports the 

basic principle that the EPA has 

authority and responsibility to assure 

that states comply with legal 

requirements of the CAA applicable to 

SIP provisions. 

This view of what cooperative 

federalism prohibits is consistent with 

Train, where the U.S. Supreme Court 

stated that the EPA ‘‘is relegated by the 

[1970] Act to a secondary role in the 

process of determining and enforcing 

the specific, source-by-source emission 

limitations which are necessary if the 

national standards it has set are to be 

met.’’ 97 It is also consistent with the 

Virginia decision, where the DC Circuit 

held that the EPA cannot under section 

110 functionally require states to 

‘‘adopt[] particular control measures’’ in 

a SIP but must rather ensure that states 

have a meaningful choice among 

alternatives.98 Moreover, it is consistent 

with the court’s view in Michigan v. 

EPA,99 a case involving a SIP call, in 

which the DC Circuit interpreted and 

applied those precedents: 

Given the Train and Virginia precedent, 

the validity of the NOx budget program 

underlying the SIP call depends in part on 

whether the program in effect constitutes an 

EPA-imposed control measure or emission 

limitation triggering the Train-Virginia 

federalism bar: In other words, on whether 

the program constitutes an impermissible 

source-specific means rather than a 

permissible end goal. However, the program’s 

validity also depends on whether EPA’s 

budgets allow the covered states real choice 

with regard to the control measure options 

available to them to meet the budget 

requirements.100

Clearly, in this SIP call the EPA is 

leaving the states the freedom to correct 

the inappropriate provisions in any 

manner they wish as long as they 

comply with the constraints of section 

110(a)(2). 

Finally, this view is consistent with 

Appalachian Power Co. v. EPA, where 

the DC Circuit reiterated that Virginia 

‘‘disapproved the EPA’s plan to reject 

SIPs that did not incorporate particular 

limits upon emissions from new 

cars.’’ 101 The specific controls 

discussed in these cases are quite 

different, both as a legal matter and 

functionally, from the statutory 

constraints on the states’ exercise of 

discretion that the EPA is interpreting 

and applying in this action.102

As explained in the February 2013 

proposal, in this action the EPA is not 

requiring states to adopt any particular 

emission limitation or to impose a 

specific control measure in a SIP 

provision; the EPA is merely directing 

the states to address the fundamental 

statutory requirements that all SIP 

provisions must meet.103 This SIP call 

outlines the principles and framework 

for how states can revise the existing 

deficient SIP provisions to meet a 

permissible end goal 104—compliance 

with the Act. In so doing, the EPA is 

merely acting pursuant to its 

supervisory role under the CAA’s 

cooperative-federalism framework, to 

ensure that SIPs satisfy those broad 

requirements that section 110(a)(2) 

mandates SIPs ‘‘shall’’ satisfy. With 

respect to section 110(a)(2)(A), this 

means that a SIP must at least contain 

legitimate, enforceable emission 

limitations to the extent they are 

necessary or appropriate ‘‘to meet the 

applicable requirements’’ of the Act. 

SIPs cannot contain unbounded 

director’s discretion provisions that 

functionally subvert the requirements of 

the CAA for approval and revision of 

SIP provisions. Likewise, SIPs cannot 

have enforcement discretion provisions 

or affirmative defense provisions that 

contravene the fundamental 

requirements concerning the 

enforcement of SIP provisions. 

Accordingly, the EPA believes that this 

SIP call fully accords with the federalstate partnership outlined in section 

110, by providing the states meaningful 

latitude when developing SIP 

submissions, while ‘‘‘nonetheless 

subject[ing] the States to strict minimum 

compliances requirements’ and giv[ing] 

EPA the authority to determine a state’s 

compliance with those 

requirements.’’ 105

The EPA emphasizes that this action 

also allows states ‘‘real choice’’ 

concerning their SIP provisions, so long 

as the provisions are consistent with 

applicable requirements. For example, 

this SIP call does not establish any 

specific, source-by-source limitations. 

To the contrary, as described in section 

VII.A of this document, emission 

limitations meeting the requirements of 

section 110(a)(2)(A) may take a variety 

of forms. Under section 110(a)(2)(A), 

states are free to include in their SIPs 

whatever emission limitations they 

wish, provided the states comply with 

applicable legal requirements. Among 

those requirements are that an emission 

limitation in a SIP must be an ‘‘emission 

limitation’’ as defined in section 302(k) 

and that all controls—emission 

limitations and otherwise—must be 

sufficiently ‘‘enforceable’’ to ensure 

compliance with applicable CAA 

requirements. The SSM provisions at 

issue in this SIP call subvert both of 

these legal requirements. 

3. Comments that the EPA should 

expand the rulemaking to include 

additional SIP provisions that the 

commenters consider deficient with 

respect to SSM issues. 

Comment: Some commenters 

requested that the EPA expand its 

February 2013 proposed action to 

include additional SIP provisions that 

the commenters consider deficient with 

respect to SSM issues. Specifically, 

commenters identified additional SIP 

provisions in Wisconsin (a state not 

identified by the Petitioner) and New 

Hampshire (a state for which the 

Petitioner did specifically identify other 

SIP provisions). 

One commenter argued that ‘‘[i]t 

would substantially ease the 

administrative burden on EPA as well 

on public commenters’’ and ‘‘ensure 

that companies in all states are treated 

equally’’ if the EPA were to include ‘‘all 

SIPs with faulty SSM provisions in [a] 

consolidated SIP call.’’ Another 

commenter noted that ‘‘the interests of 

regulatory efficiency will be served’’ by 

adding additional SIP provisions to the 

SIP call because ‘‘all changes required 

by the policy underlying this 

rulemaking’’ to state SIPs would then be 

made at once. 

Response: The EPA acknowledges the 

requests made by the commenters 

concerning additional SIP provisions 

that may be inconsistent with CAA 

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106February 2013 proposal, 78 FR 12459 

(February 22, 2013). 107The SIP provisions for which the EPA 

proposed SIP calls in its February 2013 proposal 

were further limited to those for which the 

Petitioner specifically requested action, with three 

exceptions; the EPA proposed SIP calls for 

additional SIP provisions in Ohio, North Dakota 

and West Virginia (one each), for reasons explained 

in section IX of the February 2013 proposal. 108The EPA notes that it has received a separate 

petition for rulemaking requesting it to evaluate SIP 

provisions in the State of Wisconsin. The EPA is 

not taking action on that separate petition as part 

of this action but will take action on that petition 

in a future rulemaking. 

109Of these six states in which the EPA 

independently identified affirmative defense 

provisions, two states (California and Texas) were 

not identified in the Petition. For another two of 

these states (New Mexico and Washington), the EPA 

had already reviewed other affirmative defense 

provisions specifically identified in the Petition and 

had already proposed SIP calls in the February 2013 

proposal. For the other two states (South Carolina 

and West Virginia), the EPA had already reviewed 

and proposed SIP calls for provisions that were 

identified by the Petitioner but that did not include 

affirmative defenses. 

110Petition at 14. 

111See, generally, 40 CFR part 51 (including 

regulations applicable to many aspects of SIPs. 

requirements. The EPA also agrees with 

the points made by the commenters 

concerning the potential benefits of 

expanding the rulemaking to include 

evaluation of additional provisions. 

However, in the February 2013 proposal 

the EPA elected to review the specific 

SIP provisions identified by the 

Petitioner in the SIPs of only the 39 

states (and jurisdictions) identified by 

the Petitioner to determine whether they 

were consistent with the CAA as 

interpreted in the EPA’s SSM Policy as 

requested in the Petition.106 Although 

there may be additional SIP provisions 

that are deficient, the EPA determined 

that it would first focus its review on 

the SIP provisions for which possible 

deficiencies had already been identified 

by the Petitioner.107 Accordingly, the 

February 2013 proposal addressed only 

those states identified in the Petition, in 

order to use EPA and state resources 

most efficiently. 

With respect to the specific additional 

SIP provisions identified by the 

commenters on the February 2013 

proposal, the EPA also notes that it 

cannot take final action on any 

additional SSM-related SIP provisions 

without first providing an opportunity 

for public notice and comment with 

respect to those additional SIP 

provisions. The EPA agrees that an 

important objective of its action on the 

Petition is to provide complete, 

comprehensive and up-to-date guidance 

to all air agencies concerning SIP 

provisions that apply to emissions 

during SSM events. The EPA is 

endeavoring to do this by responding to 

the Petition fully and by updating its 

interpretation of the CAA in the SSM 

Policy to reflect the relevant statutory 

requirements and recent court 

decisions. All states should feel free to 

apply this revised guidance in 

reviewing their own SIP provisions and 

revising them as appropriate. The EPA 

may address other SSM-related 

provisions that may be inconsistent 

with EPA’s SSM Policy and the CAA in 

a later separate notice-and-comment 

action(s). The EPA has authority to 

address those provisions separately.108

The EPA notes that with respect to the 

issue of affirmative defenses in SIP 

provisions, the Agency determined that 

it was necessary to amend its February 

2013 proposal to take into consideration 

a subsequent court decision concerning 

the legal basis for such provisions. As 

explained in the SNPR and also in 

section IV of this document, the DC 

Circuit in the NRDC case decided that 

the CAA precludes any affirmative 

defense provisions that would operate 

to limit a court’s jurisdiction or 

discretion to determine the appropriate 

remedy in an enforcement action. Thus, 

the EPA issued the SNPR to address this 

development in the law. Because of 

recent EPA actions and court decisions 

on this subject, the Agency determined 

that it was important to address not only 

the affirmative defense provisions 

identified in the Petition but also 

affirmative defense provisions that the 

EPA independently identified in six 

states’ SIPs.109 The SNPR was explicitly 

limited to the narrow concern of 

affirmative defense provisions, which 

was one of the types of issued 

specifically identified by the Petitioner. 

The EPA issued the SNPR with the same 

intention as that with which it issued 

the February 2013 proposal—so that the 

final action would provide guidance 

that reflects the EPA’s updated 

interpretation of the CAA and would 

respond to the Petitioner’s request that 

‘‘EPA find that all SIPs containing an 

SSM exemption or a provision that 

could be interpreted to affect EPA or 

citizen enforcement are substantially 

inadequate to comply with the 

requirements of the Clean Air Act and 

issue a call for each of the states with 

such a SIP to revise it in conformity 

with the requirements of the Act or 

otherwise remedy these defective 

SIPs.’’ 110 The EPA included these six 

states’ affirmative defense provisions in 

order to provide comprehensive 

guidance to all states concerning 

affirmative defense provisions in SIPs 

and to avoid confusion that may arise 

due to recent rulemakings and court 

decisions relevant to such provisions 

under the CAA. 

The SIP call promulgated by the EPA 

in this action applies only to the 

particular SIP provisions identified in 

this document, and the scope of the SIP 

call for each state is limited to those 

provisions. However, if states of their 

own accord wish to revise SIP 

provisions, beyond those identified in 

this SIP call, that they believe are 

inconsistent with the SSM Policy and 

the CAA, the EPA will review and act 

on those SIP revisions in accordance 

with CAA sections 110(k), 110(l) and 

193. 

4. Comments that the EPA should 

create regulatory text in 40 CFR part 51 

to forbid SSM exemptions in SIP 

provisions if the CAA precludes them. 

Comment: Commenters argued that 

the EPA, before issuing a SIP call 

requiring states to revise SIP provisions 

containing exemptions for emissions 

during SSM events, should first have 

promulgated specific regulations 

articulating that such exemptions are 

precluded by the CAA. According to 

commenters, taking this approach 

would have given states more certainty 

and clarity and provided states with 

more time to develop SIP revisions 

consistent with those regulatory 

requirements. Commenters also asserted 

that it is not appropriate for the EPA to 

proceed with a SIP call to states without 

prior rulemaking to create regulatory 

provisions explicitly prohibiting SSM 

exemptions in SIPs, given that the 

Agency has previously approved the SIP 

provisions at issue. 

Response: The EPA disagrees with the 

commenters’ argument that the Agency 

must first promulgate regulations to 

make clear that exemptions for 

emissions during SSM events are not 

permissible in SIPs, prior to issuing this 

SIP call. The EPA likewise disagrees 

with the implication that its authority to 

promulgate a SIP call is restricted only 

to those issues for which there is 

specifically applicable regulatory text, 

as opposed to requirements related to 

statutory provisions, court decisions or 

other legal or factual bases for a 

determination that an existing SIP 

provision is substantially inadequate to 

meet CAA requirements. The EPA 

disagrees with the commenters for 

several reasons. 

First, the CAA does not impose a 

general obligation upon the Agency to 

promulgate regulations applicable to all 

SIP requirements. Although the EPA has 

elected to promulgate regulations to 

address a broad variety of issues 

relevant to SIPs,111 the Agency is not 

obligated to promulgate regulations 

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112See, e.g., CAA section 169A(a)(4) (requiring 

the EPA to promulgate regulations governing the 

requirements relevant to SIP requirements for 

purposes of regional haze reduction). 

113See, e.g., ‘‘State Implementation Plans; 

General Preamble for the Implementation of Title I 

of the Clean Air Act Amendments of 1990,’’ 57 FR 

13498 (April 16, 1992) (the ‘‘General Preamble’’ that 

continues to provide guidance recommendations to 

states for certain attainment plan requirements for 

various NAAQS); 40 CFR part 51, subpart Z 

(imposing regulatory requirements for certain 

attainment plan requirements for the 1997 PM2.5

NAAQS). 

114See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. 

Cir. 2000) (upholding the ‘‘NOX SIP Call’’ to states 

requiring revisions to previously approved SIPs 

with respect to ozone transport and section 

110(a)(2)(D)(i)(I)); ‘‘Finding of Substantial 

Inadequacy of Implementation Plan; Call for Utah 

State Implementation Plan Revision,’’ 74 FR 21639 

(April 18, 2011) (the EPA issued a SIP call to rectify 

SIP provisions dating back to 1980). 

115See E.O. 13563 section 2(c). 

116See ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls To Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown, and Malfunction; Notice of 

extension of public comment period,’’ 78 FR 20855 

(April 8, 2013), in the rulemaking docket at EPA– 

HQ–OAR–2012–0322–0126. 

unless there is a specific statutory 

mandate that it do so.112 In addition, the 

EPA has authority under section 301 to 

promulgate such regulations as it deems 

necessary to implement the CAA (e.g., 

to fill statutory gaps left by Congress for 

the EPA to fill or to clarify ambiguous 

statutory language). With respect to SIP 

requirements, however, the EPA has 

elected to promulgate regulations or to 

issue guidance to states to address 

different requirements, as 

appropriate.113 In short, there is no 

specific statutory requirement that the 

EPA promulgate regulations with 

respect to the types of deficiencies in 

SIP provisions at issue in this action 

prior to issuing a SIP call. 

Second, the EPA has historically 

elected to address the key issues 

relevant to this SIP call action in 

guidance. Through a series of guidance 

documents, issued in 1982, 1983, 1999 

and 2001, the EPA has previously 

explained its interpretations of the CAA 

with respect to SIP provisions that 

contain automatic SSM exemptions, 

discretionary SSM exemptions, the 

exercise of enforcement discretion for 

SSM events and affirmative defenses for 

SSM events. Starting in the 1982 SSM 

Guidance, the EPA explicitly 

acknowledged that it had previously 

approved some SIP provisions related to 

emissions during SSM events that it 

should not have, because the provisions 

were inconsistent with requirements for 

SIPs. In addition, the EPA has in 

rulemakings applied its interpretation of 

the CAA with respect to issues such as 

exemptions for emissions during SSM 

events, and these actions have been 

approved by courts.114 Under these 

circumstances, the EPA does not agree 

that promulgation of generally 

applicable regulations was necessary to 

put states on notice of the Agency’s 

interpretation of the CAA with respect 

to these issues, prior to issuance of a SIP 

call. 

Finally, the EPA’s authority under 

section 110(k)(5) is not limited, 

expressly or otherwise, solely to 

inadequacies related to regulatory 

requirements. To the contrary, section 

110(k)(5) refers broadly to attainment 

and maintenance of the NAAQS, 

adequate mitigation of interstate 

transport and compliance with ‘‘any 

requirement of’’ the CAA. In addition, 

section 110(k)(5) specifically 

contemplates situations such as this 

one, ‘‘whenever’’ the EPA finds 

previously approved SIP provisions to 

be deficient. Nothing in the CAA 

requires the EPA to conduct a separate 

rulemaking clarifying its interpretation 

of the CAA prior to issuance of this SIP 

call. For the types of deficiencies at 

issue in this action, the EPA believes 

that the statutory requirements of the 

CAA itself and recent court decisions 

concerning those statutory provisions 

provide sufficient basis for this SIP call. 

For the foregoing reasons, the EPA 

disagrees that before requiring states to 

revise SIPs that contain provisions with 

SSM exemptions, the EPA first must 

promulgate regulations explicitly stating 

that such exemptions are impermissible 

under the CAA. In addition, the EPA 

notes that although it is not 

promulgating generally applicable 

regulations in this action, it is 

nonetheless revising its guidance in the 

SSM Policy through rulemaking and has 

thereby provided states and other 

parties the opportunity to comment on 

the Agency’s interpretation of the CAA 

with respect to this issue. 

5. Comments that the EPA did not 

provide a sufficiently long comment 

period on the proposal in general or as 

contemplated in Executive Order 13563. 

Comment: A number of commenters 

argued that the comment period 

provided by the EPA for the February 

2013 proposal was ‘‘at odds with’’ 

Executive Order 13563. The 

commenters alleged that the comment 

period was ‘‘unconscionably short,’’ 

even so short as to be ‘‘arbitrary and 

capricious’’ because, in order to provide 

comments, ‘‘impacted States and 

industries must perform the data 

collection and analysis necessary to 

evaluate the need for the proposed rule 

and its impacts.’’ Further, the 

commenters alleged, the ‘‘EPA’s failure 

and refusal to perform any technical 

analyses of the feasibility of source 

operations after the elimination of SSM 

provisions or the likely capital and 

operating costs of additional control 

equipment required to meet numeric 

standards during all operational periods 

has denied the States, the affected 

parties, and the public a meaningful 

opportunity to evaluate and comment 

upon the proposed rule.’’ Finally, one 

commenter asserted that Executive 

Order 13563 requires that ‘‘[b]efore 

issuing a notice of proposed rulemaking, 

each agency, where feasible and 

appropriate, shall seek the views of 

those who are likely to be affected.’’ 115

The commenter claimed that because 

the EPA allegedly ‘‘failed to seek the 

views of those who are likely to be 

affected and those who are potentially 

subject to such rulemaking, EPA’s 

actions ignore the requirements of the 

Executive Order.’’ 

Response: The EPA disagrees that it 

has not provided sufficiently long 

comment periods to address the specific 

issues relevant to this action. As 

described in section IV.D.1 of this 

document, the EPA has followed all 

steps of a notice-and-comment 

rulemaking, as governed by applicable 

statutes, regulations and executive 

orders, including a robust process for 

public participation. When the EPA 

initially proposed to take action on the 

Petition, in February 2013, it 

simultaneously solicited public 

comment on all aspects of its proposed 

response to the issues in the Petition 

and in particular on its proposed action 

with respect to each of the specific 

existing SIP provisions identified by the 

Petitioner as inconsistent with the 

requirements of the CAA. In response to 

requests, the EPA extended the public 

comment period for this proposal to 

May 13, 2013, which is 80 days from the 

date the proposed rulemaking was 

published in the Federal Register and 

89 days from the date the proposed 

rulemaking was posted on the EPA’s 

Web site.116 The EPA deemed this 

extension appropriate because of the 

issues raised in the February 2013 

proposal. The EPA also held a public 

hearing on March 12, 2013. In response 

to this proposed action, the EPA 

received approximately 69,000 public 

comments, including over 50 comment 

letters from state and local governments, 

over 150 comment letters from industry 

commenters, over 25 comment letters 

from public interest groups and many 

thousands of comments from individual 

commenters. Many of these comment 

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117See E.O. 13563 section 2(b) (emphasis added). 

118See, e.g., Omnipoint Corp. v. Fed. Commc’ns 

Comm’n, 78 F.3d 620, 629 (D.C. Cir. 1996) 

(approving a 7-day comment period); Florida Power 

& Light Co. v. United States, 846 F.2d 765, 772 (D.C. 

Cir. 1988) (holding a 15-day comment period to not 

be unreasonable under the governing 

circumstances); Conn. Light & Power Co. v. NRC, 

673 F.2d 525, 534 (D.C. Cir. 1982) (holding 30 days 

not unreasonable in the particular situation); Am. 

Farm Bureau Fedn v. United States EPA, 984 

F.Supp.2d 289, 333 (M.D. Pa. 2013) (holding that 

a 45-day comment period was adequate despite 

‘‘technical complexities of the regulations and 

issues raised’’). 

119This issue is addressed in more detail in 

section VIII.A.1 of this document. 

letters were substantial and covered 

numerous issues. 

Similarly, when the EPA ascertained 

that it was necessary to revise its 

proposed action on the Petition with 

respect to affirmative defenses in SIP 

provisions, the Agency issued the 

SNPR. In that supplemental proposal, in 

September 2014, the EPA fully 

explained the issues and took comment 

on the questions related to whether 

affirmative defense provisions are 

consistent with CAA requirements 

concerning the jurisdiction of courts in 

enforcement actions, and thus whether 

such provisions are consistent with 

fundamental CAA requirements for SIP 

provisions. The EPA provided a public 

comment period ending November 6, 

2014, which is 50 days from the date the 

SNPR was published in the Federal 

Register and 62 days from the date the 

SNPR was posted on the EPA’s Web 

site. The EPA believes that the comment 

period was sufficient given that the 

subject of the SNPR was limited to the 

narrow issue of whether affirmative 

defense provisions are consistent with 

CAA requirements. The EPA also held 

a public hearing on the SNPR on 

October 7, 2014 on the specific topic of 

the legitimacy of affirmative defense 

provisions in SIPs. In response to the 

SNPR, the EPA received over 20,000 

public comments, including at least 9 

comment letters from states and local 

governments, over 40 comment letters 

from industry commenters, at least 6 

comment letters from public interest 

groups, and many thousands of 

comments from individual commenters. 

Executive Order 13563 provides that 

each agency should ‘‘afford the public a 

meaningful opportunity to comment 

through the Internet on any proposed 

regulation, with a comment period that 

should generally be at least 60 days.’’ 117

The length of the Agency’s comment 

period for the original proposed 

rulemaking well-exceeded this standard. 

The EPA also facilitated comment on 

the action by providing a full and 

detailed evaluation of the relevant 

issues in the February 2013 proposal, 

the background memorandum 

supporting the proposal and the SNPR. 

When considering whether an agency 

has provided for adequate public input, 

reviewing courts are generally most 

concerned with the overall adequacy of 

the opportunity to comment. This, in 

turn, typically depends on steps the 

agency took to notify the public of 

information that is important to this 

action. Comment period length is only 

one factor that courts consider in this 

analysis, and courts have regularly 

found that comment periods of 

significantly shorter length than the 80 

days provided here on the February 

2013 proposal were reasonable in 

various circumstances.118 Given the 

nature of the issues raised by the 

Petition, the EPA believes that the 

comment period was appropriate and 

sufficient to allow for full analysis of the 

issues and preparation of comments. 

The number of comments received on 

the February 2013 proposal, and the 

breadth of issues and level of detail 

provided by the commenters, both 

supportive and adverse, serve to support 

the EPA’s view on this point. 

The EPA also disagrees with respect 

to the claims of commenters that the 

comment period was insufficient 

because the EPA should provide time 

for commenters to evaluate and analyze 

fully the possible ultimate impacts of 

the SIP call upon particular sources, to 

determine what type of SIP revision by 

a state is appropriate in response to a 

SIP call, or to ascertain what specific 

new emission limitation or control 

measure requirement states should 

impose upon sources in such a future 

SIP revision. The EPA’s action on the 

Petition concerning specific existing SIP 

provisions is focused upon whether 

those existing provisions meet 

fundamental legal requirements of the 

CAA for SIP provisions. The EPA is not 

required to provide a comment period 

for this action that allows states actually 

to determine which of the potential 

forms of SIP revision they may wish to 

undertake, or to complete those SIP 

revisions, as part of this rulemaking. 

The subsequent state and EPA 

rulemaking processes on the SIP 

revisions in response to this SIP call 

action will provide time for further 

evaluation of the issues raised by 

commenters. 

As explained in the February 2013 

proposal, the EPA does not interpret 

section 110(k)(5) to require it to ‘‘prove 

causation’’ concerning what precise 

impacts illegal SIP provisions are 

having on CAA requirements, such as 

attainment and maintenance of the 

NAAQS and enforcement of SIP 

requirements.119 Nor is the EPA 

directing states to adopt a specific 

control measure in response to the SIP 

call; the decision as to how to revise the 

affected SIP provisions in response to 

the SIP call is left to the states. The 

state’s response to the SIP call will be 

developed in future rulemaking actions 

at both the state and federal level which 

will similarly be subject to full noticeand-comment proceedings. In electing 

to proceed by SIP call under section 

110(k)(5), rather than by error correction 

under section 110(k)(6), the EPA is 

providing affected states with the 

maximum time permitted by statute to 

determine how best to revise their SIP 

provisions, consistent with CAA 

requirements. During this process, the 

commenters and other stakeholders will 

have the opportunity to participate in 

the development of the SIP revision, 

including decisions such as how the 

state elects to revise the deficient SIP 

provisions (e.g., merely to eliminate an 

exemption for SSM events or to impose 

an alternative emission limitation 

applicable to startup and shutdown). 

The questions posed by the 

commenters about what specific 

emission limitations should apply 

during startup and shutdown events, 

what control measures will meet 

applicable CAA legal requirements, 

what control measures will be effective 

and cost-effective to meet applicable 

legal standards and other similar 

questions are exactly the sorts of issues 

that states will evaluate in the process 

of revising affected SIP provisions. 

Moreover, these are the same sorts of 

questions that the EPA will be 

evaluating when it reviews state SIP 

submissions made in response to the 

SIP call. The EPA is not required, by 

Executive Order 13563 or otherwise, to 

provide a comment period that would 

allow for all future actions in response 

to the SIP call to occur before issuing 

the SIP call. The EPA anticipates that 

the commenters will be able to 

participate actively in the actions that 

will happen in due course in response 

to this SIP call. 

Finally, the EPA disagrees that it did 

not adequately seek the views of 

potentially affected entities prior to 

issuance of the February 2013 proposal. 

The EPA alerted the public to the 

existence of the Petition by soliciting 

comment on the settlement agreement 

that obligated the Agency to act upon it, 

in accordance with CAA section 113(g). 

Subsequently, EPA personnel 

communicated about the Petition and 

the issues it raised in various standing 

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120See ATK Launch Systems, Inc. v. EPA, 651 

F.3d 1194 (10th Cir. 2011). 

121 Id., 651 F.3d at 1197. 

122 Id., 651 F.3d at 1199. 

123See Memorandum, ‘‘Estimate of Potential 

Direct Costs of SSM SIP Calls to Air Agencies,’’ 

April 28, 2015, in the rulemaking docket. 

meetings and conference calls with 

states and organizations that represent 

state and local air regulators. 

6. Comments that this action is not 

‘‘nationally applicable’’ for purposes of 

judicial review. 

Comment: Commenters alleged that 

the SSM SIP call is not ‘‘nationally 

applicable’’ for purposes of judicial 

review. One state commenter cited ATK 

Launch Systems for the proposition that 

the specific language of the regulation 

being challenged indicates whether an 

action is nationally or locally/regionally 

applicable. Because a SIP provision 

subject to this SIP call is state-specific, 

the commenter argued, it is of concern 

only for that state and thus the SIP call 

is a locally applicable action.120

Response: The EPA disagrees with the 

commenter that the SIP call is not a 

nationally applicable action. In this 

action, the EPA is responding to a 

Petition that requires the Agency to 

reevaluate its interpretations of the CAA 

in the SSM Policy that apply to SIP 

provisions for all states across the 

nation. In so doing, the EPA is 

reiterating its interpretations with 

respect to some issues (e.g., that SIP 

provisions cannot include exemptions 

for emissions during SSM events) and 

revising its interpretations with respect 

to others (e.g., so that SIP provisions 

cannot include affirmative defenses for 

emissions during SSM events). In 

addition to reiterating and updating its 

interpretations with respect to SIP 

provisions in general, the EPA is also 

applying its interpretations to specific 

existing provisions in the SIPs of 41 

states. Through this action the EPA is 

establishing a national policy that it is 

applying to states across the nation. As 

with many nationally applicable 

rulemakings, it is true that this action 

also has local or regional effects in the 

sense that EPA is requiring 36 

individual states to submit revisions to 

their SIPs. However, through this action 

the EPA is applying the same legal and 

policy interpretation to each of these 

states. Thus, the underlying basis for the 

SIP call has ‘‘nationwide scope and 

effect’’ within the meaning of section 

307(b)(1) as explained by the EPA in the 

February 2013 proposal. A key purpose 

of the CAA in channeling to the D.C. 

Circuit challenges to EPA rulemakings 

that have nationwide scope and effect is 

to minimize instances where the same 

legal and policy basis for decisions may 

be challenged in multiple courts of 

appeals, which instances would 

potentially lead to inconsistent judicial 

holdings and a patchwork application of 

the CAA across the country. We note 

that in the ATK Launch case cited by 

commenters, the U.S. Court of Appeals 

for the Tenth Circuit (Tenth Circuit) in 

fact transferred to the D.C. Circuit 

challenges to the designation of two 

areas in Utah that were part of a 

national rulemaking designating areas 

across the U.S. for the PM2.5 NAAQS. In 

transferring the challenges to the D.C. 

Circuit, the Tenth Circuit noted that the 

designations rulemaking ‘‘reached areas 

coast to coast and beyond’’ and that the 

EPA had applied a uniform process and 

standard.121 Significantly, in support of 

its decision to transfer the challenges to 

the D.C. Circuit, the Tenth Circuit 

stated: ‘‘The challenge here is more akin 

to challenges to so-called ‘SIP Calls,’ 

which the Fourth and Fifth Circuits 

have transferred to the D.C. Circuit . . . 

Although each of the SIP Call petitions 

challenged the revision requirement as 

to a particular state, the SIP Call on its 

face applied the same standard to every 

state and mandated revisions based on 

that standard to states with nonconforming SIPs in multiple regions of 

the country.’’ 122

7. Comments that the EPA was 

obligated to address and justify the 

potential costs of the action and failed 

to do so correctly. 

Comment: Several commenters 

alleged that the EPA has failed to 

address the costs associated with this 

rulemaking action appropriately and 

consistent with legal requirements. In 

particular, commenters alleged that the 

EPA is required to address costs of 

various impacts of this SIP call, 

including the costs that may be involved 

in changes to emissions controls or 

operation at sources and the costs to 

states to revise permits and revise SIPs 

in response to the SIP call. 

Commenters also alleged that the EPA 

has failed to comply with Executive 

Order 12291, Executive Order 12866, 

Executive Order 13211, the Regulatory 

Flexibility Act and the Unfunded 

Mandates Reform Act. 

One commenter supported the EPA’s 

approach with respect to cost. 

Response: The EPA disagrees with 

commenters concerning its compliance 

with the Executive Orders and statutes 

applicable to agency rulemaking in 

general. The EPA maintains that it did 

properly consider the costs imposed by 

this SIP call action, as required by law. 

As explained in the February 2013 

proposal, to the extent that the EPA is 

issuing a SIP call to a state under 

section 110(k)(5), the Agency is only 

requiring a state to revise its SIP to 

comply with existing requirements of 

the CAA. The EPA’s action, therefore, 

would leave to states the choice of how 

to revise the SIP provision in question 

to make it consistent with CAA 

requirements and of determining, 

among other things, which of several 

lawful approaches to the treatment of 

excess emissions during SSM events 

will be applied to particular sources. 

Therefore, the EPA considers the only 

direct costs of this rulemaking action to 

be those to states associated with 

preparation and submission of a SIP 

revision by those states for which the 

EPA issues a SIP call.123 Examples of 

such costs could include development 

of a state rule, conducting notice and 

public hearing and other costs incurred 

in connection with a SIP submission. 

The EPA notes that it did not consider 

the costs of potential revisions to 

operating permits for sources to be a 

direct cost imposed by this action, 

because, as stated elsewhere in this 

document, the Agency anticipates that 

states will elect to delay any necessary 

revision of permits until the permits 

need to be reissued in the ordinary 

course after revision of the underlying 

SIP provisions. 

The commenters also incorrectly 

claim that the EPA failed to comply 

with Executive Order 12291. That 

Executive Order was explicitly revoked 

by Executive Order 12866, which was 

signed by President Clinton on 

September 30, 1993. 

The commenters are likewise 

incorrect that the EPA did not comply 

with Executive Order 12866. This action 

was not deemed ‘‘significant’’ on a basis 

of the cost it will impose as the 

commenters claimed. The EPA has 

already concluded that this action will 

not result in a rule that may have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, of state, local or tribal 

governments or communities. The EPA 

instead determined that, as noted in 

both the February 2013 proposal 

(section X.A) and the SNPR (section 

VIII.A), this action is a ‘‘significant 

regulatory action’’ as that term is 

defined in Executive Order 12866 

because it raises novel legal or policy 

issues. Accordingly, it was on that basis 

that the EPA submitted the February 

2013 proposal, the SNPR and the final 

action to the Office of Management and 

Budget (OMB) for review. Changes made 

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124See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. 

Cir. 2000); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 

F.2d 327 (D.C. Cir. 1985). 

125Petition at 16. 

126Petition at 14. 

in response to OMB review are 

documented in the docket for this 

action. The EPA believes it has fully 

complied with Executive Order 12866. 

As stated in the February 2013 

proposal, the EPA does not believe this 

is a ‘‘significant energy action’’ as 

defined in Executive Order 13211, 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution or use of energy. As 

described earlier, this action merely 

requires that states revise their SIPs to 

comply with existing requirements of 

the CAA. States have the choice of how 

to revise the deficient SIP provisions 

that are the subject of this action; there 

are a variety of different ways that states 

may treat the issue of excess emissions 

during SSM events consistent with CAA 

requirements for SIPs. This action 

merely prescribes the EPA’s action for 

states regarding their obligations for 

SIPs under the CAA, and therefore it is 

not a ‘‘significant energy action’’ under 

Executive Order 13211. 

With respect to the Regulatory 

Flexibility Act (RFA), as the EPA 

explained in the February 2013 

proposal, courts have interpreted the 

RFA to require a regulatory flexibility 

analysis only when small entities will 

be subject to the requirements of the 

rule.124 This action will not impose any 

requirements on small entities. Instead, 

it merely reiterates the EPA’s 

interpretation of the statutory 

requirements of the CAA. To the extent 

that the EPA is issuing a SIP call to a 

state under section 110(k)(5), the EPA is 

only requiring the state to revise its SIP 

to comply with existing requirements of 

the CAA. In turn, the state will 

determine whether and how to regulate 

specific sources, including any small 

entities, through the process of deciding 

how to revise a deficient SIP provision. 

The EPA’s action itself will not have a 

significant economic impact on a 

substantial number of small entities. 

As the EPA explained in the February 

2013 proposal, this action is not subject 

to the requirements of the Unfunded 

Mandates Reform Act (UMRA) because 

it does not contain a federal mandate 

that may result in expenditures of $100 

million or more for state, local and tribal 

governments, in the aggregate, or the 

private sector in any one year. With 

respect to the impacts on sources, the 

EPA’s action in this rulemaking is not 

directly imposing costs on any sources. 

The EPA’s action is merely directing 

states to revise their SIPs in order to 

bring them into compliance with the 

legal requirements of the CAA for SIP 

provisions. In response to the SIP call, 

the states will determine how best to 

revise their deficient SIP provisions in 

order to meet CAA requirements. It is 

thus the states that will make the 

decisions concerning how best to revise 

their SIP provisions and will determine 

what impacts will ultimately apply to 

sources as a result of those revisions. 

8. Comments that the EPA’s action 

violates procedural requirements of the 

CAA or the APA, because the EPA is 

acting on the Petition, updating its SSM 

Policy and applying its interpretation of 

the CAA to specific SIP provisions in 

one action. 

Comment: Commenters argued that 

the EPA’s proposed action on the 

Petition, which includes simultaneous 

updating of its interpretations of the 

CAA in the SSM Policy and application 

of those revised interpretations to 

existing SIP provisions, is in violation of 

procedural requirements of the CAA 

and the APA. According to the 

commenters, the EPA’s combination of 

actions is a ‘‘subterfuge’’ to avoid notice 

and comment on the proposed actions 

in the February 2013 proposal. The 

commenters claimed that the EPA could 

only take these actions through two or 

more separate rulemaking actions. By 

proposing to update its interpretation of 

the CAA in the SSM Policy through 

notice-and-comment rulemaking and 

proposing to apply its interpretation of 

the CAA through notice-and-comment 

rulemaking to existing SIP provisions, 

the commenters claimed, the EPA has 

prejudged the outcome of this action. 

Response: The EPA does not agree 

that it was required to take this action 

in multiple separate rulemakings as 

claimed by the commenters. First, the 

EPA notes, the fact that the commenters’ 

allegation—that the Agency failed to 

proceed by notice and comment—was 

raised in a comment letter submitted on 

the February 2013 proposal belies the 

commenters’ overarching procedural 

argument that the EPA is failing to 

subject its interpretations of the CAA to 

notice-and-comment rulemaking. 

Second, although the EPA could elect to 

undertake two or more separate noticeand-comment rulemakings in order to 

answer the Petition, to revise its 

interpretations of the CAA in the SSM 

Policy and to evaluate existing 

provisions in state SIPs against the 

requirements of the CAA, there is no 

requirement for the Agency to do so. To 

the contrary, the EPA believes that it is 

preferable to take these interrelated 

actions in a combined rulemaking 

process. This combined approach 

allows the EPA to explain its actions 

comprehensively and in their larger 

context. The combined approach allows 

commenters to participate more 

meaningfully by considering together 

the proposed action on the Petition, the 

proposed interpretations of the CAA in 

the SSM Policy and the proposed 

application of the EPA’s interpretation 

to specific SIP provisions. By addressing 

the interrelated actions together and 

comprehensively, the EPA is striving to 

be efficient with the resources of both 

regulators and regulated parties. Most 

importantly, by combining these actions 

the EPA is being responsive to the need 

for prompt evaluation of the SIP 

provisions at issue and for correction of 

those found to be legally deficient in a 

timely fashion. Far from ‘‘prejudging’’ 

the issues, the EPA explicitly sought 

comment on all aspects of the February 

2013 proposal and sought additional 

comment on issues related to affirmative 

defense provisions in the SNPR. 

Naturally, the EPA’s proposal and 

supplemental proposal reflected its best 

judgments on the proper interpretations 

of the CAA and application of those 

interpretations to the issues raised by 

the Petition, as of the time of the 

February 2013 proposal and the SNPR. 

VI. Final Action in Response To 

Request That the EPA Limit SIP 

Approval to the Text of State 

Regulations and Not Rely Upon 

Additional Interpretive Letters From 

the State 

A. What the Petitioner Requested 

The Petitioner’s third request was that 

when the EPA evaluates SIP revisions 

submitted by a state, the EPA should 

require ‘‘all terms, conditions, 

limitations and interpretations of the 

various SSM provisions to be reflected 

in the unambiguous language of the SIPs 

themselves.’’ 125 The Petitioner 

expressed concern that the EPA has 

previously approved SIP submissions 

with provisions that ‘‘by their plain 

terms’’ do not appear to comply with 

the EPA’s interpretation of CAA 

requirements embodied in the SSM 

Policy and has approved those SIP 

submissions in reliance on separate 

‘‘letters of interpretation’’ from the state 

that construe the provisions of the SIP 

submission itself to be consistent with 

the SSM Policy.126 Because of this 

reliance on interpretive letters, the 

Petitioner argued that ‘‘such 

constructions are not necessarily 

apparent from the text of the provisions 

and their enforceability may be difficult 

and unnecessarily complex and 

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127Petition at 15. 

128See February 2013 proposal, 78 FR 12459 at 

12474 (February 22, 2013). 

129See, e.g., ‘‘Finding of Substantial Inadequacy 

of Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 76 FR 21639 at 

21648 (April 18, 2011). 

130CAA section 110(k) directs the EPA to act on 

SIP submissions and to approve those that meet 

statutory and regulatory requirements. Implicit in 

this authority is the discretion, through appropriate 

notice-and-comment rulemaking, to determine 

whether a given SIP provision meets such 

requirements, in reliance on the information that 

the EPA considers relevant for this purpose. 

inefficient.’’ 127 The Petitioner cited 

various past rulemaking actions to 

illustrate how EPA approval of 

ambiguous SIP provisions can inject 

unintended confusion for regulated 

entities, regulators, and the public in the 

future, especially in the context of 

future enforcement actions. 

Accordingly, the Petitioner requested 

that the EPA discontinue reliance upon 

interpretive letters when approving state 

SIP submissions, regardless of the 

circumstances. A more detailed 

explanation of the Petitioner’s 

arguments appears in the 2013 February 

proposal.128

B. What the EPA Proposed 

In the February 2013 proposal, the 

EPA proposed to deny the Petition with 

respect to this issue. The EPA explained 

the basis for this proposed disapproval 

in detail, including a discussion of the 

statutory provisions that the Agency 

interprets to permit this approach, an 

explanation of why this approach makes 

sense from both a practical and an 

efficiency perspective under some 

circumstances, and a careful 

explanation of the process by which 

EPA intends to rely on interpretive 

letters in order to assure that the 

concerns of the Petitioner with respect 

to potential future disputes about the 

meaning of SIP provisions should be 

alleviated. 

C. What is being finalized in this action? 

The EPA is taking final action to deny 

the Petition on this request. The EPA 

believes that it has statutory authority to 

rely on interpretive letters to resolve 

ambiguity in a SIP submission under 

appropriate circumstances and so long 

as the state and the EPA follow an 

appropriate process to assure that the 

rulemaking record properly reflects this 

reliance. To avoid any 

misunderstanding about the reasons for 

this denial or any misunderstandings 

about the circumstances under which, 

or the proper process by which, the EPA 

intends to rely interpretive letters, the 

Agency is repeating its views in this 

final action in detail. 

As stated in the February 2013 

proposal, the EPA agrees with the core 

principle advocated by the Petitioner, 

i.e., that the language of regulations in 

SIPs that pertain to SSM events should 

be clear and unambiguous. This is 

necessary as a legal matter but also as 

a matter of fairness to all parties, 

including the regulated entities, the 

regulators, and the public. In some 

cases, the lack of clarity may be so 

significant that amending the state’s 

regulation may be warranted to 

eliminate the potential for confusion or 

misunderstanding about applicable legal 

requirements that could interfere with 

compliance or enforcement. Indeed, as 

noted by the Petitioner, the EPA has 

requested that states clarify ambiguous 

SIP provisions when the EPA has 

subsequently determined that to be 

necessary.129

However, the EPA believes that the 

use of interpretive letters to clarify 

ambiguity or perceived ambiguity in the 

provisions in a SIP submission is a 

permissible, and sometimes necessary, 

approach under the CAA. Used 

correctly, and with adequate 

documentation in the Federal Register 

and the docket for the underlying 

rulemaking action, reliance on 

interpretive letters can serve a useful 

purpose and still meet the enforceability 

concerns of the Petitioner. So long as 

the interpretive letters and the EPA’s 

reliance on them is properly explained 

and documented, regulated entities, 

regulators, and the public can readily 

ascertain the existence of interpretive 

letters relied upon in the EPA’s 

approval that would be useful to resolve 

any perceived ambiguity. By virtue of 

being part of the stated basis for the 

EPA’s approval of that provision in a 

SIP submission, the interpretive letters 

necessarily establish the correct 

interpretation of any arguably 

ambiguous SIP provision. In other 

words, the rulemaking record should 

reflect the shared state and EPA 

understanding of the meaning of a 

provision at issue at the time of the 

approval, which can then be referenced 

should any question about the provision 

arise in a future enforcement action. 

In addition, reliance on interpretive 

letters to address concerns about 

perceived ambiguity can often be the 

most efficient and timely way to resolve 

concerns about the correct meaning of 

regulatory provisions. Both air agencies 

and the EPA are required to follow timeand resource-intensive administrative 

processes in order to develop and 

evaluate SIP submissions. It is 

reasonable for the EPA to exercise its 

discretion to use interpretive letters to 

clarify concerns about the meaning of 

regulatory provisions, rather than to 

require air agencies to reinitiate a 

complete administrative process merely 

to resolve perceived ambiguity in a 

provision in a SIP submission.130 In 

particular, the EPA considers this an 

appropriate approach where reliance on 

such an interpretive letter allows the air 

agency and the EPA to put into place 

SIP provisions that are necessary to 

meet important CAA objectives and for 

which unnecessary delay would be 

counterproductive. For example, where 

an air agency is adopting emission 

limitations for purposes of attaining the 

NAAQS in an area, a timely letter from 

the air agency clarifying that an 

enforcement discretion provision is 

applicable only to air agency 

enforcement personnel and has no 

bearing on enforcement by the EPA or 

the public could help to assure that the 

provision is approved into the SIP 

promptly and thus allow the area to 

reach attainment more expeditiously 

than requiring the air agency to 

undertake a time-consuming 

administrative process to make a minor 

clarifying change in the regulatory text. 

There are multiple reasons why the 

EPA does not agree with the Petitioner 

with respect to the alleged inadequacy 

of using interpretive letters to clarify 

specific ambiguities in a SIP submission 

and the SIP provisions that may 

ultimately result from approval of such 

a submission, provided this process is 

done correctly. First, under section 

107(a), the CAA gives air agencies both 

the authority and the primary 

responsibility to develop SIPs that meet 

applicable statutory and regulatory 

requirements. However, the CAA 

generally does not specify exactly how 

air agencies are to meet the 

requirements substantively, nor does the 

CAA specify that air agencies must use 

specific regulatory terminology, 

phraseology, or format, in provisions 

submitted in a SIP submission. Air 

agencies each have their own 

requirements and practices with respect 

to rulemaking, making flexibility 

respecting terminology on the EPA’s 

part appropriate, so long as CAA 

requirements are met. 

As a prime example relevant to the 

SSM issue, CAA section 110(a)(2)(A) 

requires that a state’s SIP shall include 

‘‘enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights) as well as schedules and 

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131The EPA notes that notwithstanding discretion 

in wording in regulatory provisions, many words 

have specific recognized legal meaning whether by 

statute, regulation, case law, dictionary definition, 

or common usage. For example, the term 

‘‘continuous’’ has a specific meaning that must be 

complied with substantively, however the state may 

elect to word its regulatory provisions. 

132See, e.g., Luminant Generation v. EPA, 714 

F.3d 841 (5th Cir. 2013) (upholding the EPA’s 

disapproval in part of affirmative defense provision 

with unclear regulatory text); US Magnesium, LLC 

v. EPA, 690 F.3d 1157, 1170 (10th Cir. 2012) 

(upholding the EPA’s issuance of a SIP call to 

clarify a provision that could be interpreted in a 

way inconsistent with CAA requirements). 

timetables for compliance as may be 

necessary or appropriate to meet the 

applicable requirements of’’ the CAA. 

Section 302(k) of the CAA further 

defines the term ‘‘emission limitation’’ 

in important respects but nevertheless 

leaves room for variations of approach, 

stating that it is ‘‘a requirement 

established by the State or 

Administrator which limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis, including any 

requirement relating to the operation or 

maintenance of a source to assure 

continuous emission reduction, and any 

design, equipment, work practice or 

operational standard promulgated under 

[the CAA].’’ 

Even this most basic requirement of 

SIPs, the inclusion of enforceable 

‘‘emission limitations,’’ allows air 

agencies discretion in how to structure 

or word the emission limitations, so 

long as the provisions meet fundamental 

legal requirements of the CAA.131 Thus, 

by the explicit terms of the statute and 

by design, air agencies generally have 

considerable discretion in how they 

elect to structure or word their state 

regulations submitted to meet CAA 

requirements in a SIP. 

Second, under CAA section 110(k), 

the EPA has both the authority and the 

responsibility to assess whether a SIP 

submission meets applicable CAA and 

regulatory requirements. Given that air 

agencies have authority and discretion 

to structure or word SIP provisions as 

they think most appropriate, so long as 

the SIP provisions meet CAA and 

regulatory requirements, the EPA’s role 

is to evaluate whether those provisions 

in fact meet those legal requirements.132

Necessarily, this process entails the 

exercise of judgment concerning the 

specific text of regulations, with regard 

both to content and to clarity. Because 

actions on SIP submissions are subject 

to notice-and-comment rulemaking, 

there is also the opportunity for other 

parties to identify SIP provisions that 

they consider problematic and to bring 

to the EPA’s attention any concerns 

about ambiguity in the meaning of the 

SIP provisions under evaluation. 

Third, careful review of regulatory 

provisions in a SIP submission can 

reveal areas of potential ambiguity. It is 

essential, however, that regulations are 

sufficiently clear that regulated entities, 

regulators and the public can all 

understand the SIP requirements. Where 

the EPA perceives ambiguity in draft 

SIP submissions, it endeavors to resolve 

those ambiguities through interactions 

with the relevant air agency even in 

advance of the SIP submission. On 

occasion, however, there may still 

remain areas of regulatory ambiguity in 

a SIP submission’s provisions that the 

EPA identifies, either independently or 

as a result of public comments on a 

proposed action, for which resolution is 

both appropriate and necessary as part 

of the rulemaking action. 

In such circumstances, the ambiguity 

may be so significant as to require the 

air agency to revise the regulatory text 

in its SIP submission in order to resolve 

the concern. At other times, however, 

the EPA may determine that with 

adequate explanation from the state, the 

provision is sufficiently clear and 

complies with applicable CAA and 

associated regulatory requirements. In 

some instances, the air agency may 

supply the explanation necessary to 

resolve any potential ambiguity in a SIP 

submission by sending an official letter 

from the appropriate authority. When 

the EPA bases its approval of a SIP 

submission in reliance on the air 

agency’s official interpretation of the 

provision, that reading is explicitly 

incorporated into the EPA’s action and 

is memorialized as the proper intended 

reading of the provision. In other words, 

the state and the EPA will have a shared 

understanding of the proper 

interpretation of the provision, and that 

interpretation will provide the basis for 

the approval of that provision into the 

SIP. The interpretation will also be 

clearly identified and presented for the 

public and regulated entities in the 

Federal Register document approving 

the SIP submission. 

For example, in the Knoxville 

redesignation action that the Petitioner 

noted in the Petition, the EPA took 

careful steps to ensure that the 

perceived ambiguity raised by 

commenters was substantively resolved 

and fully reflected in the rulemaking 

record, i.e., through inclusion of the 

interpretive letters in the rulemaking 

docket, quoting relevant passages from 

the letters in the Federal Register, and 

carefully evaluating the areas of 

potential ambiguity in response to 

public comments on a provision-byprovision basis. By discussing the 

resolution of the perceived ambiguity 

explicitly in the rulemaking record, the 

EPA assured that the correct meaning of 

that provision should be evident from 

the record, should any question 

concerning its meaning arise in a future 

dispute. 

Finally, the EPA notes that while it is 

possible to reflect interpretive letters in 

the Code of Federal Regulations (CFR) 

or incorporate them into the regulatory 

text of the CFR in appropriate 

circumstances, there is no requirement 

to do so in all actions, and there are 

other ways for the public to have a clear 

understanding of the content of the SIP. 

First, for each SIP, the CFR contains a 

list or table of actions that reflects the 

various components of the approved 

SIP, including information concerning 

the submission of, and the EPA’s action 

approving, each component. With this 

information, interested parties can 

readily locate the actual Federal 

Register document in which the EPA 

will have explained the basis for its 

approval in detail, including any 

interpretive letters that may have been 

relied upon to resolve any potential 

ambiguity in the SIP provisions. With 

this information, the interested party 

can also locate the docket for the 

underlying rulemaking and obtain a 

copy of the interpretive letter itself. 

Thus, if there is any debate about the 

correct reading of the SIP provision, 

either at the time of the EPA’s approval 

or in the future, it will be possible to 

ascertain the mutual understanding of 

the air agency and the EPA of the 

correct reading of the provision in 

question at the time the EPA approved 

it into the SIP. Most importantly, 

regardless of whether the content of the 

interpretive letter is reflected in the CFR 

or simply described in the Federal 

Register preamble accompanying the 

EPA’s approval of the SIP submission, 

this mutual understanding of the correct 

reading of that provision upon which 

the EPA relied will be the reading that 

governs, should that later become an 

issue. 

The EPA notes that the existence of, 

or content of, an interpretive letter that 

is part of the basis for the EPA’s 

approval of a SIP submission is in 

reality analogous to many other things 

related to that approval. Not everything 

that may be part of the basis for the SIP 

approval in the docket—including the 

proposal or final preambles, the 

technical support documents, responses 

to comments, technical analyses, 

modeling results, or docket 

memoranda—will be restated verbatim, 

incorporated into, or referenced in the 

CFR. These background materials 

remain part of the basis for the SIP 

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approval and remain available should 

they be needed in the future for any 

purpose. To the extent that there is any 

question about the correct interpretation 

of an ambiguous provision in the future, 

an interested party will be able to access 

the docket to verify the correct meaning 

of SIP provisions. 

With regard to the Petitioner’s 

concern that either actual or alleged 

ambiguity in a SIP provision could 

impede an effective enforcement action, 

the EPA believes that its current process 

for evaluating SIP submissions and 

resolving potential ambiguities, 

including the reliance on interpretive 

letters in appropriate circumstances 

with correct documentation in the 

rulemaking action, minimizes the 

possibility for any such ambiguity in the 

first instance. To the extent that there 

remains any perceived ambiguity, the 

EPA concludes that regulated entities, 

regulators, the public, and ultimately 

the courts, have recourse to use the 

administrative record to shed light on 

and resolve any such ambiguity as 

explained earlier in this document. 

The EPA emphasizes that it is already 

the Agency’s practice to assure that any 

interpretive letters are correctly and 

adequately reflected in the Federal 

Register and are included in the 

rulemaking docket for a SIP approval. 

Should the Petitioner or any other party 

have concerns about any ambiguity in a 

provision in a SIP submission, the EPA 

strongly encourages that they bring this 

ambiguity to the Agency’s attention 

during the rulemaking action on the SIP 

submission so that it can be addressed 

in the rulemaking process and properly 

reflected in the administrative record. 

Should an ambiguity come to light later, 

the EPA encourages the Petitioner or 

any other party to bring that ambiguity 

to the attention of the relevant EPA 

Regional Office. If the Agency agrees 

that there is ambiguity in a SIP 

provision that requires clarification 

subsequent to final action on the SIP 

submission, then the EPA can work 

with the relevant air agency to resolve 

that ambiguity by various means. 

D. Response to Comments Concerning 

Reliance on Interpretive Letters in SIP 

Revisions 

The EPA received relatively few 

comments, both supportive and adverse, 

concerning the Agency’s overarching 

decision to deny the Petition with 

respect to this issue. For clarity and ease 

of discussion, the EPA is responding to 

these comments, grouped by whether 

they were supportive or adverse, in this 

section of this document. 

1. Comments that supported the 

EPA’s interpretation of the CAA to 

allow reliance on interpretive letters to 

clarify ambiguities in state SIP 

submissions. 

Comment: A number of state and 

industry commenters agreed with the 

EPA that the use of interpretive letters 

to clarify perceived ambiguity in the 

provisions in a SIP is a permissible, and 

sometimes necessary, approach to 

approving SIP submissions under the 

CAA when done correctly. Those 

commenters who supported the EPA’s 

proposed action on the Petition did not 

elaborate upon their reasoning, but 

generally supported it as an efficient 

and reasonable approach to resolve 

ambiguities. 

Response: The EPA agrees with the 

commenters who expressed support of 

the proposal based on practical 

considerations such as efficiency. These 

commenters did not, however, base 

their support for the proposed action on 

the EPA’s interpretation of the CAA in 

the February 2013 proposal, nor did 

they acknowledge the parameters that 

the EPA itself articulated concerning the 

appropriate situations for such reliance 

and the process by which such reliance 

is appropriate. Thus, the EPA reiterates 

that reliance on interpretive letters to 

resolve ambiguities or perceived 

ambiguities in SIP submissions must be 

weighed by the Agency on a case-bycase basis, and such evaluation is 

dependent upon the specific facts and 

circumstances present in a specific SIP 

action and would follow the process 

described in the proposal. 

2. Comments that opposed the EPA’s 

interpretation of the CAA to allow 

reliance on interpretive letters to clarify 

ambiguities in state SIP submissions. 

Comment: Other commenters 

disagreed with the EPA’s proposed 

response to the Petition on this issue. 

One commenter opposed the Agency’s 

reliance on interpretive letters under 

any circumstances and did not draw any 

factual or procedural distinctions 

between situations in which this 

approach might or might not be 

appropriate or correctly processed. This 

commenter argued that citizens should 

not be required ‘‘to sift through a large 

and complex rulemaking docket in 

order to figure out the meaning and 

operation of state regulations.’’ The 

commenter asserted that simply as a 

matter of ‘‘good government,’’ all state 

regulations approved as SIP provisions 

should be clear and unambiguous on 

their face. This commenter also 

expressed concern that courts could not 

or would not accord legal weight to 

interpretive letters created after state 

regulations were adopted and submitted 

to the EPA, or after the EPA’s approval 

of the SIP submission occurred, and 

would view such letters as post hoc 

interpretations of no probative value. 

Another commenter added its view that 

reliance on interpretive letters is 

appropriate only when affected parties 

have the right to comment on the 

interpretive letters and the EPA’s 

proposed use of them during the 

rulemaking in which the EPA relies on 

such letters to resolve ambiguities and 

before the Agency finally approves the 

SIP revision. 

Response: As a general matter, the 

commenter opposing the EPA’s reliance 

on interpretive letters in any 

circumstances because citizens would 

be required ‘‘to sift through’’ the docket 

did not provide specific arguments 

regarding the EPA’s interpretation of the 

statute as stated in the February 2013 

proposal. Consistent with the EPA’s 

interpretation of the CAA, and as 

explained earlier in this document, the 

EPA agrees with the core principle that 

the language of regulations in SIPs that 

pertain to SSM events should be clear 

and unambiguous. A commenter argued 

that ‘‘a fundamental principle of good 

government is making sure that all 

people know what the applicable law is. 

Having the applicable law manifest in a 

letter sitting in a filing cabinet in one 

office clearly does not qualify as good 

government.’’ The EPA generally agrees 

on this point as well. As explained 

earlier in this document, the EPA allows 

the use of interpretive letters to clarify 

perceived ambiguity in the provisions of 

a SIP submission only when used 

correctly, with adequate documentation 

in both the Federal Register and the 

docket for the underlying rulemaking 

action. Section VI.B of this document 

explains how interested parties can use 

the list or table of actions that appears 

in the CFR and that reflects the various 

components of the approved SIP, to 

identify the Federal Register document 

wherein the EPA has explained the 

basis for its decision on any individual 

SIP provision. As such, the EPA does 

not envision a scenario whereby a 

citizen or a court would be unable to 

determine how the air agency and the 

EPA interpreted a specific SIP provision 

at the time of its approval into the SIP. 

Assuming there is any ambiguity in the 

provision, the mutual understanding of 

the state and the EPA as to the proper 

interpretation of that provision would 

be clear at the time of the approval of 

the SIP revision, as reflected in the 

Federal Register document for the final 

rule and the docket supporting that rule, 

which should answer any question 

about the correct interpretation of the 

term. 

The same commenter also questioned 

whether ‘‘courts can or will give any 

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133See, e.g., Howmet Corp. v. EPA, 614 F.3d 544, 

552 (D.C. Cir. 2010) (using preamble guidance to 

interpret an ambiguous regulatory provision); Wyo. 

Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 

53 (D.C. Cir. 1999) (‘‘Although the preamble does 

not ‘control’ the meaning of the regulation, it may 

serve as a source of evidence concerning 

contemporaneous agency intent.’’). 

134Howmet at 549 (quoting Gen Elec. Co. v. EPA, 

53 F.3d 1324, 1327 (D.C. Cir. 1990)). 

135Auer v. Robbins, 519 U.S. 452, 461 (1997) 

(quoting Robertson v. Methow Valley Citizens 

Council, 490 U.S. 332, 359 (1989)). 

136 Indeed, the APA requires agencies to 

‘‘incorporate in the rules adopted a concise general 

statement of their basis and purpose,’’ 5 U.S.C. 

553(c), often referred to as the regulatory preamble. 

It would not make sense for a court to attempt to 

interpret the text of a regulation independently 

from its statutorily mandated statement of basis and 

purpose. 

137See, e.g., Shell Oil Co., 950 F.2d 741; NRDC 

v. Thomas, 838 F.2d 1224 (D.C. Cir. 1988); South 

Terminal Corp. v. EPA, 504 F.2d 646. 

legal weight to interpretative letters 

created after state regulations are 

adopted or SIP approvals occurred, in 

the face of industry defendant 

arguments that the SIP provisions do 

not accord with those post hoc 

interpretive letters.’’ This commenter 

asserted that by not requiring all 

interpretations of the SSM provisions in 

the ‘‘unambiguous language of the 

SIPs,’’ the EPA is accepting ‘‘great legal 

uncertainty’’ as to whether judges will 

consider interpretive letters in 

enforcement actions. As a preliminary 

matter, as explained earlier in this 

document, this action does not apply to 

‘‘post hoc’’ interpretive letters, i.e., to 

situations where a state would submit 

an interpretive letter after the EPA’s 

approval of the SIP. Through this action 

the EPA is confirming its view that it 

may use interpretive letters to clarify 

ambiguous SIP provisions only when 

those letters were submitted to the EPA 

during the evaluation of the SIP 

submission and before final approval of 

the SIP revision and were included in 

the final rulemaking docket and 

explicitly discussed in the Federal 

Register document announcing such 

final action. 

In addition, as explained earlier in 

this document, once the EPA approves 

a SIP revision, it becomes part of the 

state’s SIP identified in the CFR and 

thus becomes a federally enforceable 

regulation. In cases where the substance 

of the interpretive letter is provided in 

the CFR itself, either by copying the 

interpretation verbatim into the 

regulatory text or by incorporating the 

letter by reference, courts need not look 

further for the state and the Agency’s 

agreed upon interpretation. The EPA’s 

interpretation will be clearly reflected in 

the CFR. The EPA recognizes that actual 

or perceived regulatory ambiguity may 

become an issue in instances where the 

interpretive letter is reflected in the 

preamble to the final rulemaking but is 

not copied or incorporated by reference 

in the CFR text itself. It is important to 

note, however, that once included in the 

preamble to the final rule, the air 

agency’s interpretation of the SIP 

provision, as reflected in the 

interpretive letter, becomes the EPA’s 

promulgated interpretation as well. 

While the EPA recognizes that an 

agency’s preamble guidance generally 

does not have the binding force of an 

agency’s regulations, courts do view it 

as informative in understanding an 

agency’s interpretation of its own 

regulation,133 and courts accord an 

agency’s interpretation of its own 

regulations a ‘‘ ‘high level of deference,’ 

accepting it ‘unless it is plainly 

wrong.’ ’’ 134 When reviewing a 

purportedly ambiguous agency 

regulation, courts have found that the 

agency’s interpretation of its own 

regulation is ‘‘controlling unless ‘plainly 

erroneous or inconsistent with the 

regulation.’ ’’ 135 Based on these settled 

legal principles, the EPA would expect 

a court in an enforcement action to look 

not only to the text of the regulation at 

issue but also to the preamble to the 

final rule. The preamble would contain 

an explanation of any interpretive letter 

from the state upon which the EPA 

relied in order to interpret any 

ambiguous SIP provisions.136 As such, 

the EPA disagrees that it is ‘‘accepting 

an unreasonable amount of legal 

uncertainty’’ in future enforcement 

actions by allowing the use of 

interpretive letters to clarify SIP 

provisions where such letters are 

specifically discussed in the final 

rulemaking. The EPA reiterates that 

reliance on such interpretive letters is 

not appropriate in all circumstances, 

such as instances in which the state’s 

SIP submission is so significantly 

ambiguous that it is necessary to request 

that the state revise the regulatory text 

before the EPA can approve it into the 

SIP. 

Finally, a commenter stated its view 

that reliance on interpretive letters may 

be appropriate, but only when affected 

parties have the right to comment on the 

letter and the EPA’s reliance on it 

during the rulemaking in which the 

letter is relied upon. The EPA has 

explained earlier in this document the 

proper circumstances under which such 

reliance may be appropriate and the 

proper process to be followed when 

reliance upon such letters is 

appropriate, but the EPA also notes that 

the process does not require that the 

letters always be made available for 

public comment. As explained earlier in 

this document, the EPA makes every 

attempt to identify ambiguities in statesubmitted SIPs and requests states to 

submit interpretive letters to explain 

any ambiguities, before putting the 

proposed action on the SIP submission 

out for public notice and comment. On 

occasion, however, ambiguous 

provisions may inadvertently remain 

and are not identified until the noticeand-comment period has begun. As 

explained earlier in this document, 

sometimes these ambiguities are so 

significant that the EPA requires the 

state to resubmit its SIP submission 

altogether, which would entail another 

notice-and-comment period. When the 

EPA does not deem the ambiguity to be 

so significant as to warrant a revision to 

the state’s regulatory text in the SIP 

submission, the Agency believes that 

resolution of the ambiguity through the 

submission of an interpretive letter, 

which then is incorporated into the 

EPA’s action, reflected in the 

administrative record and memorialized 

as the proper intended reading of the 

provision, is appropriate. 

This approach comports with wellestablished principles applicable to 

notice-and-comment rulemaking 

generally. One purpose of giving 

interested parties the opportunity to 

comment is to provide these parties the 

opportunity to bring areas of potential 

ambiguity in the proposal to an agency’s 

attention so that the concerns may be 

addressed before the agency takes final 

action. If the APA did not allow the 

agency to consider comments and 

provide clarification when issuing its 

final action as necessary, this purpose 

would be defeated. Courts have held 

that so long as a final rule is a ‘‘logical 

outgrowth’’ of the proposed rule, 

adequate notice has been provided.137 It 

is the EPA’s practice to neither require 

a state to resubmit a SIP submission nor 

repropose action on the submission, so 

long as the clarification provided in the 

interpretive letter is a logical outgrowth 

of the proposed SIP provision. If an 

interested party believes that the EPA is 

incorrect in not requiring the state to 

revise its SIP submission or that the 

EPA should repropose action on a 

submission, including the clarification 

provided by the interpretive letter in the 

plain language of the SIP submission 

itself, that party does have recourse. The 

APA gives that party the opportunity to 

petition the EPA for rulemaking to 

reconsider the decision under 5 U.S.C. 

553(e). For these reasons, the EPA 

believes that its process for using 

interpretive letters to clarify SIP 

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138See, e.g., Sierra Club v. Johnson, 551 F.3d 

1019, 1021 (D.C. Cir. 2008) (interpreting the 

definition of emission limitation in section 302(k) 

and section 112); Mich. Dep’t of Envtl. Quality v. 

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

disapproval of SIP provisions because they 

contained exemptions applicable to SSM events); 

US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 

(10th Cir. 2012) (upholding the EPA’s issuance of 

a SIP call to a state to correct SSM-related 

deficiencies). 

139See, e.g., CAA section 112(h)(1) (authorizing 

design, equipment, work practice, or other 

operational emission limitations under certain 

conditions); 40 CFR 51.308(e)(1)(iii) (regulations 

applicable to regional haze plans). 

140See February 2013 proposal, 78 FR 12459 at 

12478 (February 22, 2013) (the recommended 

criteria for consideration in creation of SIP 

provisions that apply during startup and 

shutdown). 

141 551 F.3d 1019 (D.C. Cir. 2008). 142The EPA notes that CAA section 123 explicitly 

prohibits certain intermittent or supplemental 

controls on sources. In a situation where an 

emission limitation is continuous, by virtue of the 

fact that it has components applicable during all 

modes of source operation, the EPA would not 

interpret the components that applied only during 

certain modes of operation, e.g., startup and 

shutdown, to be prohibited intermittent or 

supplemental controls. 

provisions, as articulated in this 

rulemaking, is appropriate. 

VII. Clarifications, Reiterations and 

Revisions to the EPA’s SSM Policy 

A. Applicability of Emission Limitations 

During Periods of SSM 

1. What the EPA Proposed 

In the February 2013 proposal, the 

EPA reiterated its longstanding 

interpretation of the CAA that SIP 

provisions cannot include exemptions 

from emission limitations for excess 

emissions during SSM events. This has 

been the EPA’s explicitly stated 

interpretation of the CAA with respect 

to SIP provisions since the 1982 SSM 

Guidance, and the Agency has reiterated 

this important point in the 1983 SSM 

Guidance, the 1999 SSM Guidance and 

the 2001 SSM Guidance. In accordance 

with CAA section 302(k), SIPs must 

contain emission limitations that ‘‘limit 

the quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis.’’ Court decisions 

confirm that this requirement for 

continuous compliance prohibits 

exemptions for excess emissions during 

SSM events.138

2. What Is Being Finalized in This 

Action 

For the reasons explained in the 

February 2013 proposal, in the 

background memorandum supporting 

that proposal and in the EPA’s 

responses to comments in this 

document, the EPA interprets the CAA 

to prohibit exemptions for excess 

emissions during SSM events in SIP 

provisions. This interpretation has long 

been reflected in the SSM Policy. The 

EPA acknowledges, however, that both 

states and the Agency have failed to 

adhere to the CAA consistently with 

respect to this issue in some instances 

in the past, and thus the need for this 

SIP call action to correct the existing 

deficiencies in SIPs. In order to be clear 

about this important point on a goingforward basis, the EPA is reiterating that 

emission limitations in SIP provisions 

cannot contain exemptions for 

emissions during SSM events. 

Many commenters wrongly asserted 

that the EPA declared in the February 

2013 proposal that all emission 

limitations in SIPs must be established 

as numerical limitations, or must be set 

at the same numerical level at all times. 

The EPA did not take this position. In 

the case of section 110(a)(2)(A), the 

statute does not include an explicit 

requirement that all SIP emission 

limitations must be expressed 

numerically. In practice, it may be that 

numerical emission limitations are the 

most appropriate from a regulatory 

perspective (e.g., to be legally and 

practically enforceable) and thus the 

limitation would need to be established 

in this form to meet CAA requirements. 

The EPA did not, however, adopt the 

position ascribed to it by commenters, 

i.e., that SIP emission limitations must 

always be expressed only numerically 

and must always be set at the same 

numerical level during all modes of 

source operation. 

The EPA notes that some provisions 

of the CAA that govern standard-setting 

limit the EPA’s own ability to set nonnumerical standards.139 Section 

110(a)(2)(A) does not contain 

comparable explicit limits on nonnumerical forms of emission limitation. 

Presumably, however, some 

commenters misunderstood the explicit 

statutory requirement for emission 

limitations to be ‘‘continuous’’ as a 

requirement that states must literally 

establish SIP emission limitations that 

would apply the same precise numerical 

level at all times. Evidently these 

commenters did not consider the 

explicit recommendations that the EPA 

made in the February 2013 proposal 

concerning creation of alternative 

emission limitations in SIP provisions 

that states may elect to apply to sources 

during startup, shutdown or other 

specifically defined modes of source 

operation.140 As many of the 

commenters acknowledged, the EPA 

itself has recently promulgated emission 

limitations in NSPS and NESHAP 

regulations that impose different 

numerical levels during different modes 

of source operation or impose emission 

limitations that are composed of a 

combination of a numerical limitation 

during some modes of operation and a 

specific technological control 

requirement or work practice 

requirement during other modes of 

operation. In light of the court’s 

decision in Sierra Club v. Johnson, the 

EPA has been taking steps to assure that 

its own regulations impose emission 

limitations that apply continuously, 

including during startup and shutdown, 

as required.141

Regardless of the reason for the 

commenters’ apparent 

misunderstanding on this point, many 

of the commenters used this incorrect 

premise as a basis to argue that 

‘‘continuous’’ SIP emission limitations 

may contain total exemptions for all 

emissions during SSM events. 

Therefore, in this final action the EPA 

wishes to be very clear on this 

important point, which is that SIP 

emission limitations: (i) Do not need to 

be numerical in format; (ii) do not have 

to apply the same limitation (e.g., 

numerical level) at all times; and (iii) 

may be composed of a combination of 

numerical limitations, specific 

technological control requirements and/ 

or work practice requirements, with 

each component of the emission 

limitation applicable during a defined 

mode of source operation. It is 

important to emphasize, however, that 

regardless of how the air agency 

structures or expresses a SIP emission 

limitation—whether solely as one 

numerical limitation, as a combination 

of different numerical limitations or as 

a combination of numerical limitations, 

specific technological control 

requirements and/or work practice 

requirements that apply during certain 

modes of operation such as startup and 

shutdown—the emission limitation as a 

whole must be continuous, must meet 

applicable CAA stringency requirements 

and must be legally and practically 

enforceable.142

Another apparent common 

misconception of commenters was that 

SIP provisions may contain exemptions 

for emissions during SSM events, so 

long as there is some other generic 

regulatory requirement of some kind 

somewhere else in the SIP that 

coincidentally applies during those 

exempt periods. The other generic 

regulatory requirements most frequently 

referred to by commenters are ‘‘general 

duty’’ type requirements, such as a 

general duty to minimize emissions at 

all times, a general duty to use good 

engineering judgment at all times, or a 

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143See, e.g., ‘‘Oil and Natural Gas Sector: New 

Source Performance Standards and National 

Emission Standards for Hazardous Air Pollutants 

Reviews; Final rule,’’ 77 FR 49489 at 49570, 49586 

(August 16, 2012) (added general standards to apply 

at all times). 

144See, e.g., ‘‘New Source Performance Standards 

Review for Nitric Acid Plants; Final rule,’’ 77 FR 

48433 (August 14, 2012) (example of NSPS 

emission limitation that no longer includes 

exemption for periods of startup or shutdown). 

145See, e.g., ‘‘Oil and Natural Gas Sector: New 

Source Performance Standards and National 

Emission Standards for Hazardous Air Pollutants 

Reviews; Final rule,’’ 77 FR 49489 (August 16, 

2012) (consistent with Sierra Club v. Johnson, the 

EPA has established standards in both rules that 

apply at all times). 

general duty not to cause a violation of 

the NAAQS at any time. To the extent 

that such other general-duty 

requirement is properly established and 

legally and practically enforceable, the 

EPA would agree that it may be an 

appropriate separate requirement to 

impose upon sources in addition to the 

(continuous) emission limitation. The 

EPA itself imposes separate general 

duties of this type in appropriate 

circumstances.143 The existence of these 

generic provisions does not, however, 

legitimize exemptions for emissions 

during SSM events in a SIP provision 

that imposes an emission limitation. 

In accordance with the definition of 

section 302(k), SIP emission limitations 

must be continuous and apply at all 

times. SIP provisions may be composed 

of a combination of numerical 

limitations, specific technological 

control requirements and/or work 

practice requirements, but those must be 

components of a continuously 

applicable SIP emission limitation. In 

addition, the SIP emission limitation 

must meet applicable stringency 

requirements during all modes of source 

operation (e.g., be RACT for stationary 

sources located in a nonattainment area) 

and be legally and practically 

enforceable. General-duty requirements 

that are not clearly part of or explicitly 

cross-referenced in a SIP emission 

limitation cannot be viewed as a 

component of a continuous emission 

limitation. Even if clearly part of or 

explicitly cross-referenced in the SIP 

emission limitation, however, a given 

general-duty requirement may not be 

consistent with the applicable 

stringency requirements for that type of 

SIP provision during startup and 

shutdown. The EPA’s recommendations 

for developing appropriate alternative 

emission limitations applicable during 

certain modes of source operation are 

discussed in section VII.B.2 of this 

document. In general, the EPA believes 

that a legally and practically enforceable 

alternative emission limitation 

applicable during startup and shutdown 

should be expressed as a numerical 

limitation, a specific technological 

control requirement or a specific work 

practice requirement applicable to 

affected sources during specifically 

defined periods or modes of operation. 

3. Response to Comments 

The EPA received a substantial 

number of comments, both supportive 

and adverse, concerning the issue of 

exemptions in SIP provisions for excess 

emissions during SSM events. Many of 

these comments raised the same core 

issues, albeit using slight variations on 

the arguments or variations on the 

combination and sequence of 

arguments. For clarity and ease of 

discussion, the EPA is responding to 

these comments, grouped by issue, in 

this section of this document. 

a. Comments that the EPA’s proposed 

action on the Petition is incorrect 

because some of the Agency’s own 

regulations contain exemptions for 

emissions during SSM events. 

Comment: Many commenters argued 

that the EPA is misinterpreting the CAA 

to preclude SIP provisions with 

exemptions for emissions during SSM 

events because some of the Agency’s 

own existing NSPS and NESHAP rules 

contain such exemptions. Some 

commenters provided a list of existing 

NSPS or NESHAP standards that they 

claimed currently contain exemptions 

for emissions during SSM events. 

Commenters also noted that the NSPS 

general provisions at 40 CFR 60.11(d) 

excuse noncompliance with many NSPS 

during periods of startup and shutdown. 

Other commenters asserted that the 

EPA’s interpretations in the February 

2013 proposal are inconsistent with its 

longstanding interpretation of the Act 

because the EPA itself has a long history 

of adopting exceptions to numerical 

emission limitations for emissions 

during SSM events, citing to the NSPS 

general provisions at 40 CFR 60.8, the 

NSPS for Fossil-Fuel-Fired Steam 

Generators and for Electric Utility Steam 

Generating Units (40 CFR part 60, 

respectively subparts D and Da) and the 

NSPS for Industrial-CommercialInstitutional Steam Generating Units 

and for Small Industrial-CommercialInstitutional Steam Generating Units (40 

CFR part 60, respectively subparts Db 

and Dc). Commenters claimed that 

recent revisions to 40 CFR part 60, 

subpart Da excluded periods of startup 

and shutdown from new PM standards. 

The commenters pointed to these facts 

or alleged facts as evidence that the EPA 

is interpreting the term ‘‘emission 

limitation’’ or other provisions of the 

statute inconsistently to preclude SSM 

exemptions in SIP provisions. 

Response: Commenters are correct 

that many of the EPA’s existing NSPS 

and NESHAP standards still contain 

exemptions from emission limitations 

during periods of SSM. The exemptions 

in these EPA regulations, however, 

predated the 2008 issuance of the D.C. 

Circuit decision in Sierra Club v. 

Johnson, in which the court held that 

emission limitations must be 

continuous and thus cannot contain 

exemptions for emissions during SSM 

events. Likewise, the NSPS general 

provisions in 40 CFR 60.8 that 

commenters identified as inconsistent 

also predate that 2008 court decision. 

Although these other EPA regulations 

that include exemptions for emissions 

during SSM events were not before the 

court in the Sierra Club case, the EPA’s 

view is that the legal reasoning of the 

Sierra Club decision applies equally to 

these exemptions and that the 

exemptions are thus inconsistent with 

the CAA. 

Consequently, since the Sierra Club 

decision, the EPA has eliminated 

exemptions in many existing federal 

emission limitations as these standards 

are revised or reviewed pursuant to 

CAA requirements, such as CAA 

sections 111(b)(1)(B), 112(d)(6) and 

112(f)(2).144 Similarly, the EPA has 

established emission standards that 

apply at all times, including during 

SSM events, when promulgating new 

NSPS and NESHAP standards to be 

consistent with the Sierra Club 

decision.145 The EPA recognizes that the 

NSPS general provisions regulations 

also include exemptions for emissions 

during SSM events, but in promulgating 

new NSPS since the Sierra Club 

decision, the EPA has established 

emission limitations in the new NSPS 

that apply at all times thereby 

superseding those general provisions. 

Therefore, the EPA’s action in this 

rulemaking is consistent with other 

actions that the EPA has taken since the 

Sierra Club decision concerning the 

issue of SSM exemptions. 

The fact that the EPA has not 

completed the process of updating its 

own regulations to bring them into 

compliance with respect to CAA 

requirements concerning proper 

treatment of emissions during SSM 

events does not render this SIP call 

action arbitrary or capricious. The 

existence of a deficiency in an existing 

EPA regulation that has not yet been 

corrected does not alter the legal 

requirements imposed by the CAA upon 

states with respect to SIP provisions. 

Thus, for example, the EPA does not 

agree with commenters that the 

continued existence of SSM exemptions 

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146See 40 CFR 60.48Da(a). For affected facilities 

for which construction, modification, or 

reconstruction commenced after May 3, 2011, the 

applicable SO2 emissions limit under § 60.43Da, 

NOX emissions limit under § 60.44Da, and NOX

plus CO emissions limit under § 60.45Da apply at 

all times. 

147The EPA notes that the emission standards for 

SO2 in 40 CFR 60.43Da and for NOX in 40 CFR 

60.44Da, applicable to sources on which 

construction, modification or reconstruction 

commenced after May 3, 2011, also apply 

continuously and contain no exemptions for 

emissions during SSM events. 

148For example, for NSPS regulations under 

subparts D, Da, Db and Dc of 40 CFR part 60, the 

EPA has deemed 0.030 lb/MMBtu to be a 

sufficiently stringent PM limitation for certain 

sources operating PM CEMS to conclude that an 

opacity emission limitation is not needed, on the 

basis that the contribution of filterable PM to 

opacity at PM levels of 0.030 lb/MMBtu or less is 

generally negligible, and sources with mass limits 

at this level or less will operate with little or no 

visible emissions (i.e., less than 5 percent opacity). 

See 74 FR 5072 at 5073 (January 28, 2009). 

in the general provisions applicable to 

the emission limitations in the Agency’s 

own NSPS for Fossil-Fuel-Fired Steam 

Generators in 40 CFR part 60, subpart D, 

is evidence that exemptions for 

emissions during SSM events are 

permitted by the CAA. 

The EPA acknowledges that 

correction of longstanding regulatory 

deficiencies by proper rulemaking 

procedures requires time and resources, 

not only for the EPA but also for states 

and affected sources. Hence, the EPA 

has elected to proceed via its authority 

under section 110(k)(5) and to provide 

states with the full 18 months allowed 

by statute for compliance with this 

action. This SIP call is intended to help 

assure that state SIP provisions are 

brought into line with CAA 

requirements for emission limitations, 

just as the EPA is undertaking a process 

to update its own regulations. 

The EPA also specifically disagrees 

with the commenters’ implication that 

40 CFR 60.11(d) completely excuses 

noncompliance during periods of 

startup and shutdown. Rather, that 

provision imposes a separate affirmative 

obligation to maintain and operate the 

affected facility, including associated air 

pollution control equipment, in a 

manner consistent with good air 

pollution control practices at all times. 

The existence of this separate duty to 

minimize emissions, however, does not 

justify or excuse the existence of an 

exemption for emissions during SSM 

events from the emission limitations of 

an EPA NSPS. It is a separate obligation 

that sources must also meet at all times. 

The EPA also disagrees with the 

commenters who argued that the 

Agency has recently created new 

exemptions for PM emissions during 

startup and shutdown events in the 

NSPS for Electric Utility Steam 

Generating Units in 40 CFR part 60, 

subpart Da. The EPA has not created 

new exemptions for emissions during 

startup and shutdown. To the contrary, 

the EPA has taken steps to assure that 

these regulations are consistent with the 

statutory definition of emission 

limitation and with the logic of the 

Sierra Club decision on a going-forward 

basis. In accordance with that decision, 

the revised emission limitations in 

subpart Da NSPS apply continuously. In 

revising subpart Da to establish 

requirements for sources on which 

construction, modification or 

reconstruction commenced after May 3, 

2011, the EPA determined that it was 

appropriate to provide that the 

exemptions for emissions during SSM 

events in the General Provisions do not 

apply.146 Although the Sierra Club v. 

Johnson decision specifically addressed 

the validity of SSM exemptions in 

NESHAP regulations, the EPA 

concluded that the court’s focus on the 

definition of ‘‘emission limitation’’ in 

section 302(k) applied equally to any 

such SSM exemptions in NSPS 

regulations. Thus, for affected sources 

on which construction, modification or 

reconstruction starts after May 3, 2011, 

the General Provisions do not provide 

an exemption to compliance with the 

applicable emission limitations during 

SSM events. 

For such sources, the emission 

limitation for PM in 40 CFR 60.42Da(a) 

imposes a numerical level of 0.03 lb/

MMBtu that applies at all times except 

during startup and shutdown and 

specific work practices that apply 

during startup and shutdown.147 The 

related emission limitation for opacity 

from such sources in 40 CFR 60.42Da(b) 

is 20 percent opacity at all times, except 

for one 6-minute period per hour of not 

more than 27 percent, and it applies at 

all times except during periods of 

startup and shutdown when the work 

practices for PM limit opacity. 

Commenters alleged that the EPA 

created an ‘‘exemption’’ from the PM 

emission limitations in subpart Da 

applicable to post-May 3, 2011, affected 

sources. That is simply incorrect. The 

revised regulations in subpart Da 

impose a numerical emission limitation 

that applies at all times except during 

startup and shutdown and impose 

specific work practice requirements that 

apply during startup and shutdown as a 

component of the emission limitation. 

Specifically, 40 CFR 60.42Da(e)(2) 

explicitly requires post-May 3, 2011, 

affected sources to comply with specific 

work practice standards in part 63, 

subpart UUUUU. The numerical 

emission limitation and the work 

practice requirement together comprise 

a continuous emission limitation and 

there is no exemption for emissions 

during startup and shutdown. The fact 

that the EPA has established different 

requirements for different periods of 

operation does not constitute creation of 

an exemption. These emission 

limitations have numerical limitations 

that apply during most periods and 

specific technological control 

requirements or work practice 

requirements that apply during startup 

and shutdown, but all periods of 

operation are subject to controls and no 

periods of operation are exempt from 

regulation. States are similarly able to 

alter their regulations, in response to 

this SIP call, to provide for emission 

limitations with different types of 

controls applicable during different 

modes of source operation, so long as 

those controls apply at all times and no 

periods are exempt from controls. As 

explained in section VII.A of this 

document, the EPA interprets section 

110(a)(2)(A) to permit SIP provisions 

that are composed of a combination of 

numerical limitations, specific 

technological control requirements and/ 

or work practice requirements, so long 

as the resulting emission limitations are 

continuous, meet applicable stringency 

requirements (e.g., are RACT for sources 

in nonattainment areas) and are legally 

and practically enforceable. 

The EPA also notes that the 

provisions of 40 CFR 60.42Da(b)(1) do 

not provide an ‘‘exemption’’ from the 

opacity standard. That section merely 

provides that the affected sources do not 

need to meet the opacity standard of the 

NSPS (at any time), if they have 

installed a PM continuous emission 

monitoring system (PM CEMS) to 

measure PM emissions continuously 

instead of relying on periodic stack tests 

to assure compliance with the PM 

emission limitation. One reason for the 

imposition of opacity standards on 

sources is to provide an effective means 

of monitoring for purposes of assuring 

source compliance with PM emission 

limitations and proper operation of PM 

emission controls on a continuous basis. 

If a source is subject to a sufficiently 

stringent PM limitation and has opted to 

install, calibrate, maintain and operate a 

PM CEMS to measure PM emissions, 

then it is reasonable for the EPA to 

conclude that an opacity emission 

limitation is not needed for that 

particular source for those purposes.148

The direct measurement of PM, in 

conjunction with an appropriately 

stringent PM emission limitation that 

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149See 1999 SSM Guidance at Attachment p. 3. 

150Under CAA section 116, states have the 

explicit general authority to regulate more 

stringently than the EPA. Indeed, under section 116 

states can regulate sources subject to EPA 

regulations promulgated under section 111 or 

section 112 so long as they do not regulate them 

less stringently. Accordingly, the EPA believes that 

states may elect to adopt EPA regulations under 

section 111 or section 112 as SIP provisions and 

expressly eliminate the exemptions for emissions 

during SSM events. 

applies continuously, is an appropriate 

means to assure adequate control of PM 

emissions on a continuous basis. States 

evaluating how best to replace 

impermissible SSM exemptions from 

opacity standards may wish to consider 

a similar approach, conditioned upon 

the use of PM CEMS and a sufficiently 

stringent PM emission limitation. 

Finally, the EPA emphasizes that 

what is at issue in this action is the 

question of whether emission 

limitations in SIP provisions can 

include exemptions for emissions 

during SSM events. The EPA is 

reiterating its longstanding 

interpretation of the CAA with respect 

to this question, in the process of 

responding to the Petition, updating its 

SSM Policy and applying its current 

interpretations of the CAA to the 

specific SIP provisions at issue in this 

SIP call action. To the extent that 

commenters intend to point out that the 

EPA needs to address exemptions for 

emissions during SSM events in its own 

existing regulations, the Agency is 

already aware of that need due to recent 

judicial decisions and is proceeding to 

correct those regulations in due course. 

b. Comments that the EPA’s proposed 

action on the Petition is incorrect 

because the Agency has previously 

allowed the inclusion of exemptions for 

emissions during SSM events through 

approval of NSPS or NESHAP 

requirements into SIPs. 

Comment: Commenters asserted that 

the EPA is being inconsistent because it 

has previously approved SIP 

submissions that rely on NSPS rules, 

including the SSM exemptions in those 

existing rules. The commenters argued 

that the EPA’s current interpretation of 

the CAA to preclude SSM exemptions 

in SIP provisions is thus at odds with 

past guidance and practice. 

Response: The EPA disagrees with the 

argument that past approval of SIP 

submissions that relied upon an NSPS 

or NESHAP with an SSM exemption is 

evidence that such exemptions should 

be permissible in SIP provisions in the 

future. In the 1999 SSM Guidance, the 

EPA addressed the related issue of 

whether states could create affirmative 

defenses in SIP provisions that would 

alter or add to the requirements of an 

existing EPA NSPS or NESHAP.149 At 

that time, the EPA clearly stated that it 

would be inappropriate for a state to 

seek to ‘‘deviate’’ from the specific 

requirements of an NSPS or NESHAP 

when adopting that standard as a SIP 

provision, stating that ‘‘[b]ecause EPA 

set these standards taking into account 

technological limitations, additional 

exemptions would be inappropriate.’’ 

Thus, so long as a state did not alter the 

requirements of the existing NSPS or 

NESHAP by including additional 

affirmative defenses or exemptions, the 

EPA indicated that it would approve a 

SIP submission that included an NSPS 

or NESHAP. 

The commenters’ argument has 

brought to the EPA’s attention that past 

guidance on this issue is in fact 

inconsistent with more recent legal 

developments. At the time of the 1999 

SSM Guidance, the EPA was still of the 

belief that its own NSPS and NESHAP 

regulations could legitimately include 

exemptions for emissions during SSM 

events. In that light, recommending to 

states that they could rely on an EPA 

NSPS or NESHAP as an emission 

limitation in a SIP provision so long as 

they did not alter the NSPS or NESHAP 

in any fashion was logical. At that time, 

the reasoning was that NSPS and 

NESHAP standards were technologybased standards that, although neither 

designed nor intended to meet the 

separate legal requirements for SIP 

provisions, could be used to provide 

emission reductions creditable in SIPs. 

Since the 2008 D.C. Circuit decision in 

Sierra Club v. Johnson, however, it has 

been clear that NSPS and NESHAP 

standards themselves cannot contain 

such exemptions. The reasoning of the 

court was that exemptions for SSM 

events are impermissible because they 

contradict the requirement that 

emission limitations be ‘‘continuous’’ in 

accordance with the definition of that 

term in section 302(k). Although the 

court evaluated this issue in the context 

of EPA regulations under section 112, 

the EPA believes that this same logic 

extends to SIP provisions under section 

110, which similarly must contain 

emission limitations as defined in the 

CAA. Section 110(a)(2)(A) requires 

states to have emission limitations in 

their SIPs to meet other CAA 

requirements, and any such emission 

limitations would similarly be subject to 

the definition of that term in section 

302(k). 

Accordingly, the EPA concludes that, 

prospectively, a state should not submit 

an NSPS or NESHAP for inclusion into 

its SIP as an emission limitation 

(whether through incorporation by 

reference or otherwise), unless that 

NSPS or NESHAP does not include an 

exemption for SSM events or unless the 

state otherwise takes action to exclude 

the SSM exemption from the standard 

as part of the SIP submission. Because 

SIP provisions must apply 

continuously, including during SSM 

events, the EPA can no longer approve 

SIP submissions that include any 

emission limitations with such 

exemptions, even if those emission 

limitations are NSPS or NESHAP 

regulations that the EPA has not yet 

revised to make consistent with CAA 

requirements. Alternatively, states may 

elect to adopt an existing NSPS or 

NESHAP as a SIP provision, so long as 

the state provision excludes the SSM 

exemption.150 States may also wish to 

replace the SSM exemption with 

appropriately developed alternative 

emission limitations that apply during 

startup and shutdown in lieu of the 

SSM exemption. Otherwise, the EPA’s 

approval of the deficient SSM 

exemption provisions into the SIP 

would contravene CAA requirements for 

SIP provisions and would potentially 

result in misinterpretation or 

misapplication of the standards by 

regulators, regulated entities, courts and 

members of the public. The EPA 

emphasizes that the inclusion of an 

NSPS or NESHAP as an emission 

limitation in a state’s SIP (which 

approach, as noted in section VII.B.3 of 

this document, would be at the state’s 

option) is different and distinct from 

reliance on such standards indirectly, 

such as sources of emission reductions 

that may be taken into account for SIP 

planning purposes in emissions 

inventories or attainment 

demonstrations. For these uses (i.e., 

other than as direct emission 

limitations), states may continue to rely 

on EPA NSPS and NESHAP regulations, 

even those that have not yet been 

revised to remove inappropriate 

exemptions, in accordance with the 

requirements applicable to those SIP 

planning functions. 

c. Comments that the EPA is 

misinterpreting the Sierra Club case 

because it applies only to MACT 

regulations and not to SIP provisions. 

Comment: Many commenters claimed 

that the EPA incorrectly applies the 

holding in the Sierra Club decision to 

preclude exemptions for emissions 

during SSM events in SIP provisions 

and that the Sierra Club decision does 

not apply in this context. The 

commenters argued that the Sierra Club 

decision was directly dependent on the 

structure of CAA section 112 and cannot 

be extended to the different regulatory 

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151 752 F.2d 1444 (9th Cir. 1985). 

152See 551 F.3d 1019, 1026 (D.C. Cir. 2008). 

153See 1999 SSM Guidance at 2, footnote 1 (citing 

the section 302(k) definition of emission limitations 

and emission standards). 

154Sections 171–193 of CAA title I comprise part 

D. 

155See CAA section 172(c)(2) (generally 

applicable attainment plan requirements including 

RACM and RACT); CAA section 189(a)(1) 

(requirements for areas classified Moderate); section 

189(b) (requirements for areas classified Serious). 

156See CAA section 169A(b)(2)(A). 

structure that governs SIPs under CAA 

section 110. 

The commenters further contended 

that in the SIP context, the underlying 

air quality pollution control 

requirement for SIPs is to attain NAAQS 

and no specific level of stringency is 

required, unlike section 112, and 

Congress gave states broad discretion in 

the design of their SIPs. Commenters 

asserted that the Sierra Club decision 

held only that the general-duty 

requirement in the section 112 

regulations did not meet the stringency 

requirements of CAA section 112 and 

that this holding does not apply in the 

SIP context because in the SIP context 

no specific level of stringency is 

required. 

Commenters also asserted that a 

general-duty requirement is an 

appropriate alternative standard for 

SSM events in the SIP context because 

CAA sections 302(k) and 110(a)(2)(A) 

give states broad authority to develop 

the mix of controls necessary and 

appropriate to implement the NAAQS. 

Other commenters contended that the 

Sierra Club decision does not preclude 

states from constructing a compliance 

regime that uses multiple methods to 

limit emissions as long as the overall 

compliance regime to minimize 

emissions is enforceable. 

Commenters also suggested that the 

decision in Kamp v. Hernandez relied 

upon in the Sierra Club case affirmed 

EPA’s approval of a state emission 

limitation in a SIP that specifically 

allowed and even expected a certain 

number of annual exceedances of the 

emission limit.151 Some commenters 

argued that the Sierra Club decision 

should not be read to impose a 

‘‘continuous emissions limitation’’ 

requirement and that to the extent it 

does, it was incorrectly decided. 

Response: The EPA disagrees that the 

court’s decision in Sierra Club v. 

Johnson has no relevance to this action. 

Of course that decision specifically 

addressed the validity of exemptions for 

emissions during SSM events in the 

Agency’s own regulations promulgated 

under section 112. Naturally, that 

decision turned, in part, on the specific 

provisions of section 112 and the 

specific arguments that each of the 

litigants raised in that case. However, 

the decision also turned in large part on 

the explicit statutory definition of the 

term ‘‘emission limitation’’ in section 

302(k), which requires such limitations 

to be ‘‘continuous.’’ 

In that litigation, the EPA itself had 

argued that the exemptions from the 

otherwise applicable MACT standards 

during SSM events were consistent with 

CAA requirements because the MACT 

standards and the separate ‘‘general 

duty’’ requirements ‘‘together form an 

uninterrupted, i.e., continuous’’ 

emission limitation, because either the 

numerical limitation or the general duty 

applied at all times.152 The Sierra Club 

court rejected this argument, in part 

because the general duty that EPA 

required sources to meet during SSM 

events was not itself consistent with 

section 112(d) and the EPA did not 

purport to act under section 112(h). 

Thus, the EPA agrees that the court in 

Sierra Club explicitly found that the 

SSM exemption in EPA’s NESHAP 

general provision rules violated the 

CAA because the general duty to 

minimize emissions was not a section 

112(d)-compliant standard and had not 

been justified by the EPA as a 112(h)- 

compliant standard. The court reasoned 

that when sections 112 and 302(k) are 

read together, there must be a 

continuous section 112-compliant 

standard. It is important to note that if 

the otherwise applicable numerical 

MACT standards had themselves 

applied at all times consistent with 

section 302(k), then there would have 

been no question that they were in fact 

continuous. 

The EPA has concluded that the 

reasoning of the Sierra Club decision is 

correct and further supports the 

Agency’s interpretations of the CAA 

with respect to SIP provisions. As 

explained in the February 2013 

proposal, the EPA’s longstanding SSM 

guidance has interpreted the CAA to 

prohibit exemptions for emissions 

during SSM events since at least 1982. 

The EPA has long explained that 

exemptions for emissions during SSM 

events are not permissible in SIP 

provisions, because they interfere with 

attainment and maintenance of the 

NAAQS, protection of PSD increments 

and improvement of visibility, and 

because they are inconsistent with the 

enforcement structure of the CAA. The 

EPA also noted that the definition of 

emission limitation in section 302(k) 

was part of the basis for its 

interpretation concerning SIP 

provisions.153 In the February 2013 

proposal, the EPA explained that the 

Sierra Club court’s emphasis on the 

definition of the term emission 

limitation in section 302(k) further 

bolsters the Agency’s basis for 

interpreting the CAA to preclude such 

exemptions in SIP provisions. In other 

words, under the CAA and the court’s 

decision, emission limitations in SIP 

provisions as well as in NSPS and 

NESHAP regulations must be 

continuous, although they can impose 

different levels or forms of control 

during different modes of source 

operation. 

The EPA also disagrees with the 

argument that the Sierra Club decision 

does not apply because section 110, 

unlike section 112, does not impose any 

specific level of ‘‘stringency’’ for SIP 

provisions. In accordance with section 

110(a)(1), states are required to have 

SIPs that provide for attainment, 

maintenance and enforcement of the 

NAAQS in general. Pursuant to section 

110(a)(2), states are required to have SIP 

provisions that meet many specific 

procedural and substantive 

requirements, including but not limited 

to, the explicit requirements of section 

110(a)(2)(A) for emission limitations 

necessary to meet other substantive 

CAA requirements. In addition, 

however, states must have SIP 

provisions that collectively meet a host 

of other statutory requirements that also 

impose more specific stringency 

requirements. Merely by way of 

example, section 110(a)(2)(I) requires 

states with nonattainment areas to have 

SIP provisions that collectively meet 

part D requirements.154 In turn, the 

different subparts of part D applicable to 

each NAAQS impose many 

requirements that require emission 

limitations in SIPs that meet various 

levels of stringency. Again, merely by 

way of example, states with 

nonattainment areas for PM under part 

D subpart 4 must have SIPs that include 

emission limitations that meet either the 

RACM and RACT level of stringency (if 

the nonattainment area is classified 

Moderate) or meet the BACM and BACT 

level of stringency (if the area is 

classified Serious).155 There are similar 

requirements for states to impose 

emission limitations that must meet 

various levels of stringency for each of 

the NAAQS. Likewise, states must 

impose SIP emission limitations that 

meet BART and reasonable progress 

levels of stringency for regional haze 

program purposes 156 and must ensure 

that emission limitations meet BACT or 

LAER levels of stringency for PSD or 

nonattainment NSR permitting program 

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157See CAA section 165(a)(4) and CAA section 

173(a)(2). 

158 753 F.3d 1444, 1452–53 (9th Cir. 1985). 

159See, e.g., 40 CFR 50.18 (24-hour PM2.5 NAAQS 

met when 98th-percentile monitored value is less 

than or equal to 35 ug/m3). 160See, e.g., Mich. Dep’t of Envtl. Quality v. 

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

disapproval of SIP provisions because they 

contained exemptions applicable to SSM events); 

US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 

(10th Cir. 2012) (upholding the EPA’s issuance of 

a SIP call to a state to correct SSM-related 

deficiencies). 

161See Letter from A. Kushner, Director, Office of 

Civil Enforcement, EPA/OECA, regarding ‘‘Vacatur 

of Startup, Shutdown, and Malfunction (SSM) 

Exemption (40 CFR 63.6(f)(1) and 63.6(h)(1)),’’ July 

22, 2009, in the rulemaking docket. 162See 1999 SSM Guidance at 2, footnote 1. 

purposes.157 The EPA agrees that states 

have broad discretion in how to devise 

SIP provisions under section 110, but 

states nevertheless are required to 

devise SIP provisions that meet 

applicable statutory stringency 

requirements. In short, the argument 

that the Sierra Club decision is not 

germane because there are no 

comparable ‘‘stringency’’ requirements 

applicable to SIP provisions is simply in 

error. While it is true that SIP provisions 

do not need to meet section 112 levels 

of stringency, they must still be 

continuous under section 302(k) and 

meet applicable NAAQS, PSD and 

visibility requirements and stringency 

levels. In short, they cannot contain 

exemptions for emissions during SSM 

events. 

Finally, the EPA does not agree with 

the commenters’ view of the 

significance of the reference to the 

Kamp v. Hernandez decision by the 

court in the Sierra Club decision. The 

Kamp decision upheld the EPA’s 

approval of a SIP provision that 

imposed an SO2 emission limitation on 

a specific stationary source.158 To the 

extent that the commenters believe that 

the Kamp decision stands for the 

principle that SIP emission limitations 

can be ‘‘continuous’’ even if they do not 

restrict emissions to the same numerical 

limitation at all times, this point is not 

in dispute. As explained in section 

VII.A of this document, the EPA agrees 

with this principle. If, however, the 

commenters believe that the Kamp 

decision instead indicates that SIP 

emission limitations may contain 

exemptions, such that no emission 

standard applies during some mode of 

source operation, then that is simply 

incorrect. The EPA-approved SIP 

provision at issue in Kamp did not itself 

allow for a certain number of 

‘‘exceedances’’ of the emission 

limitation each year. The state emission 

limitation rule in that case was 

developed to ensure attainment and 

maintenance of the then applicable SO2

NAAQS and the approved emission 

limitation for the source fluctuated but 

was continuous. It was the 

specifications of the SO2 NAAQS 

standard that allowed for a certain 

number of ‘‘exceedances’’ each year. 

The NAAQS themselves are not 

‘‘emission limitations’’ governed by 

section 302(k) and commonly have a 

statistical ‘‘form’’ that authorizes a set 

number of ‘‘exceedances’’ of the 

numerical level of the NAAQS before 

there is a ‘‘violation’’ of the NAAQS.159

Thus, the EPA believes that the court in 

the Sierra Club decision properly cited 

the Kamp case as support for the 

fundamental proposition that emission 

limitations must be ‘‘continuous.’’ 

Moreover, the EPA notes that 

commenters did not address other 

reported decisions in which courts have 

upheld the Agency’s disapproval of SIP 

submissions containing SSM 

exemptions.160

d. Comments that the EPA’s proposed 

action contradicts a 2009 guidance 

document concerning the effect of the 

Sierra Club decision on SSM 

exemptions in existing standards. 

Comment: A number of commenters 

suggested that the EPA’s February 2013 

proposal is inconsistent with a 

memorandum (in fact a public letter) 

issued by the Agency following the 

Sierra Club decision in which the D.C. 

Circuit vacated two EPA provisions that 

exempt sources from section 112(d) 

emission standards during periods of 

SSM (Kushner letter).161 The 

commenters noted that the Kushner 

letter explained that many MACT 

standards have SSM exemptions that 

were not affected by the Sierra Club 

decision. They argued that the Kushner 

letter should be read to mean that no 

emission limitations other than the ones 

explicitly discussed within that letter 

would be affected by the court’s holding 

that emission limitations under the CAA 

must be continuous. 

Response: The EPA disagrees with 

these comments for several reasons. 

First, the commenters misinterpret the 

Kushner letter. The purpose of the 

Kushner letter was to explain the direct 

and immediate impact of the Sierra Club 

decision, which vacated the SSM 

exemption in EPA’s NESHAP general 

provisions regulations. The Kushner 

letter explained that the vacatur would 

‘‘immediately and directly’’ affect only 

the subset of NESHAP source category 

standards that incorporated the general 

provisions’ exemption by reference, and 

that contain no other regulatory text 

exempting or excusing, in any way, 

compliance during SSM events, because 

only the general provisions’ exemption 

was challenged and before the court in 

the Sierra Club case. However, the 

Kushner letter clearly stated that the 

legality of all NESHAP SSM exemption 

provisions was in question and that EPA 

would examine such provisions in light 

of the court’s decision. Therefore, the 

commenters’ suggestion that the 

Kushner letter supports a limited 

reading of the legal reasoning of the 

Sierra Club case is incorrect. 

Second, the Kushner letter did not 

explicitly or implicitly address the issue 

of whether the CAA allows exemptions 

for emissions during SSM events in SIP 

provisions. That fact is unsurprising, in 

that at the time of the Kushner letter the 

EPA already had guidance in the SSM 

Policy (issued and reiterated in 1982, 

1983, 1999 and 2001) that clearly stated 

the Agency’s view that such exemptions 

are not permissible in SIP provisions, 

consistent with CAA requirements. It 

would also have been unnecessary for 

the Kushner letter discussing the impact 

of the Sierra Club decision on NESHAP 

standards to have mentioned that the 

statutory definition of emission 

limitation also precludes exemptions for 

SSM provisions in SIPs. The EPA had 

already made this point explicitly in the 

1999 SSM Guidance, when it explained 

the reasons why such provisions would 

be contrary to CAA requirements for 

SIPs.162 Thus, the EPA’s guidance for 

SIP provisions concerning emissions 

during SSM events had already 

explicitly articulated that provisions 

with exemptions for SSM events could 

not be approved pursuant to CAA 

section 110(l), because that would 

interfere with a fundamental 

requirement of the CAA, i.e., the 

definition of ‘‘emission limitation’’ in 

section 302(k). 

Finally, the EPA disagrees that the 

Kushner letter could override the 

applicability of the logic of the Sierra 

Club decision to SIP provisions, even if 

the Agency had any such intentions. 

The D.C. Circuit’s evaluation of the 

issue with respect to the EPA’s own 

regulations was premised not solely 

upon the particular requirements of 

section 112 but also more broadly on the 

meaning and specific definition of the 

term ‘‘emission limitation’’ under the 

CAA. That definition applies to SIP 

provisions as well as to the EPA’s own 

regulations. Because the SSM Policy in 

effect at the time of the Sierra Club 

decision and the time of the Kushner 

letter already stated that EPA 

interpreted the CAA to prohibit SIP 

provisions that exempt emissions 

during SSM events, there would have 

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163See, e.g., 1999 SSM Guidance, Attachment at 

1 (‘‘any provision that allows for an automatic 

exemption for excess emissions is prohibited’’). 164The mercury and air toxics standards (MATS) 

rule for power plants regulates emissions from new 

and existing coal- and oil-fired electric utility steam 

generating units (EGUs) under 40 CFR part 63, 

subpart UUUUU. 

165The Area Source Boiler rule regulates 

industrial, commercial and institutional boilers at 

area sources under 40 CFR part 63, subpart JJJJJJ. 

166See MATS rule, requirements during startup, 

shutdown and malfunction, 77 FR 9304 at 9370 

(February 16, 2012). 

167See Area Source Boiler rule, notice of final 

action on reconsideration, periods of startup and 

shutdown, 78 FR 7487 at 7496 (February 1, 2013). 

168See February 2013 proposal, 78 FR 12459 at 

12488 (February 22, 2013). 

169The EPA took final action on a petition for 

reconsideration concerning the MATS rule and the 

Utility NSPS that made certain revisions related to 

the emission limitations and work practices 

applicable during startup and shutdown. Those 

revisions did not, however, alter the basic structure 

of the emission limitations as numerical limitations, 

or numerical limitations with work practice 

components during startup and shutdown, 

depending upon the source category and the 

pollutants at issue. See 79 FR 68777 (November 19, 

2014). 

170 78 FR 7487 (February 1, 2013). 

been no need for the Kushner letter to 

speak to this issue.163

e. Comments that the EPA’s proposed 

action on the Petition is incorrect 

because the Agency’s recent MATS rule 

and Area Source Boiler rule regulations 

contain exemptions for emissions 

during SSM events. 

Comment: Many commenters asserted 

that the EPA’s February 2013 proposed 

action to find SIP provisions with 

exemptions for emissions during SSM 

events to be substantially inadequate is 

arbitrary and capricious because recent 

Agency NESHAP regulations under 

section 112 contain similar exemptions. 

Commenters pointed to recently 

promulgated rules such as the MATS 

rule 164 and the Area Source Boiler 

rule 165 as examples of NESHAP 

regulations that they claim contain 

similar exemptions. According to 

commenters, the emission limitations in 

EPA’s own MATS rule ‘‘allow excess 

emissions during SSM events,’’ 

suggesting that the Agency created 

exemptions for such emissions.166 Other 

commenters similarly argued that the 

EPA created emission limitations in the 

Area Source Boiler rule that do not 

apply ‘‘continuously’’ because the 

numerical limitations do not apply 

during startup and shutdown.167 In 

short, these commenters argued that the 

EPA is being arbitrary and capricious 

because it is holding emission 

limitations in SIPs to a different and 

higher standard than emission 

limitations under its own NSPS and 

NESHAP regulations. 

Response: The EPA disagrees with 

these commenters. The recent EPA 

rulemaking efforts that commenters 

claim are at odds with EPA’s SIP call are 

completely consistent with the Agency’s 

action today. First, as explained in the 

February 2013 proposal, the EPA has 

not taken the position that sources must 

be subject to SIP emission limitations 

that are set at the same numerical level 

at all times, or that are expressed as 

numerical limitations at all times. As 

the EPA stated, ‘‘[i]f justified, the state 

can develop special emission 

limitations or control measures that 

apply during startup or shutdown if the 

source cannot meet the otherwise 

applicable emission limitation in the 

SIP.’’ 168 The EPA’s 1999 SSM Guidance 

articulated that SIP provisions may 

include alternative emission limitations 

applicable during startup and shutdown 

as part of a continuously applicable 

emission limitation when properly 

developed and otherwise consistent 

with CAA requirements. Moreover, the 

EPA recommended specific criteria 

relevant to the creation of such 

alternative emission limitations. The 

EPA reiterated that guidance in the 

February 2013 proposal and is 

providing a clarified version of the 

guidance in this final action. This issue 

is addressed in more detail in section 

VII.B.2 of this document. 

The EPA also disagrees with the 

assertion that it is holding state SIP 

provisions to a different standard than 

its own NSPS and NESHAP regulations. 

The EPA notes that SIP emission 

limitations and NSPS and NESHAP 

emission limitations are, of course, 

designed for different purposes (e.g., to 

meet the NAAQS versus to reduce 

emissions of HAPs) and have to meet 

some different statutory requirements 

(e.g., to be RACM versus be standards 

that are compliant with section 112). 

However, the EPA understands the 

commenters’ claim to be more 

specifically that the Agency is applying 

a different interpretation of the term 

‘‘emission limitation’’ and taking a 

different approach to the treatment of 

emissions during SSM events in its own 

regulations, even in recent regulations 

developed subsequent to the Sierra Club 

decision. The EPA believes that this 

argument reflects a misunderstanding of 

both the February 2013 proposal and 

what the Agency’s own new regulations 

contain. 

The MATS rule and the Area Source 

Boiler rule in fact illustrate how the 

EPA is creating emission limitations 

that apply continuously, with numerical 

limitations or combinations of 

numerical limitations and other specific 

technological control requirements or 

work practice requirements applicable 

during startup and shutdown, 

depending upon what is appropriate for 

the source category and the pollutants at 

issue. For example, in the MATS rule 

the EPA has promulgated regulations 

that impose emission limitations on 

various subcategories of sources to 

address HAP emissions. To do so, the 

EPA developed emission limitations to 

address the relevant pollutants using a 

combination of numerical emission 

limitations and work practices. The 

work practice requirements specifically 

apply to sources during startup and 

shutdown and are thus components of 

the continuously applicable emission 

limitations.169

Similarly, in the Area Source Boiler 

rule 170 the EPA has imposed emission 

limitations on affected sources for PM, 

mercury and CO. The specific emission 

limitations that apply vary depending 

upon the subcategory of boiler. The 

emission limitations include a 

combination of numerical emission 

limitations and work practice 

requirements that together apply during 

all modes of source operation. For some 

subcategories, the standards that apply 

during startup and shutdown differ from 

the standards that apply during other 

periods of operation. This illustrates 

what the EPA considers the correct 

approach to creating emission 

limitations: (i) The emission limitation 

contains no exemption for emissions 

during SSM events; (ii) the component 

of the emission limitation that applies 

during startup and shutdown is clearly 

stated and obviously is an emission 

limitation that applies to the source; (iii) 

the component of the emission 

limitation that applies during startup 

and shutdown meets the applicable 

stringency level for this type of emission 

limitation (in this case section 112); and 

(iv) the emission limitation contains 

requirements to make it legally and 

practically enforceable. In short, the 

Area Source Boiler rule established 

emission limitations that apply 

continuously, in accordance with the 

requirements of the CAA, and consistent 

with the court’s decision in the Sierra 

Club decision. States with SIP 

provisions that are deficient because 

they contain automatic or discretionary 

exemptions for emissions during SSM 

events may wish to consider the 

Agency’s own approach when they 

develop SIP revisions in response to this 

SIP call. 

f. Comments that section 110(a)(2)(A) 

authorizes states to have SIP provisions 

with exemptions for emissions during 

SSM events because they are not 

‘‘emission limitations’’ and are not 

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171See, e.g., 40 CFR 51.100. 

172See, e.g., 40 CFR 51.100(n). 

173See 40 CFR 51.100(z). 

174See Sierra Club v. Johnson, 551 F.3d 1019, 

1027–28 (citing CAA sections 112(d)(2), 302(k)). 

subject to the requirement to be 

‘‘continuous.’’ 

Comment: Section 110(a)(2)(A) 

requires states to have SIPs that include 

emission limitations for purposes of 

imposing restrictions on sources of 

emissions in order to attain and 

maintain the NAAQS and to meet other 

CAA requirements. Some commenters 

noted that, in addition to ‘‘emission 

limitations,’’ section 110(a)(2)(A) also 

explicitly refers to ‘‘other control 

measures, means, or techniques.’’ 

Unlike the term ‘‘emission limitation,’’ 

which is defined in section 302(k), 

commenters contended that these ‘‘other 

control[s]’’ need not be continuous. 

Accordingly, these commenters argued 

that emission controls in SIP provisions 

that either contain, or are subject to, 

SSM exemptions can be viewed merely 

as examples of these ‘‘other control 

measures, means, or techniques’’ that 

are validly included in SIPs and that do 

not have to limit emissions from sources 

on a continuous basis. Specifically, 

these commenters asserted that the 

plain text of section 110(a)(2)(A) does 

not require SIPs to include only 

emission limitations but rather requires 

that SIPs include ‘‘emission 

limitations,’’ ‘‘other control measures, 

means, or techniques,’’ or a mixture 

thereof. Furthermore, according to some 

of these commenters, an interpretation 

of section 110(a)(2)(A) that requires all 

SIP provisions to be ‘‘emission 

limitations,’’ and thus subject to the 

requirement that they be continuous, 

would render the ‘‘other control’’ 

language in the statute superfluous. 

Response: The EPA agrees with the 

commenters that SIPs do not have to be 

composed solely of numerical emission 

limitations, that SIPs can contain other 

forms of controls in addition to 

emission limitations and that certain 

forms of controls other than emission 

limitations may not need to apply to 

sources continuously. However, the 

EPA disagrees with the commenters’ 

conclusion that the mere act of labeling 

certain SIP provisions as ‘‘control 

measures, means, or techniques’’ rather 

than as ‘‘emission limitations’’ can be a 

means to circumvent the requirement 

that emission limitations must regulate 

sources continuously. To the extent that 

there is any ambiguity in the 

requirements of section 110(a)(2), it is 

not reasonable to interpret the statute to 

allow the explicit requirement that 

emission limitations must be 

continuous to be negated in this fashion. 

As an initial matter, the SIP 

provisions that contain automatic or 

discretionary exemptions during SSM 

events at issue in this SIP call excuse 

compliance with requirements that 

presumably were submitted to the EPA 

as emission limitations, were intended 

to limit emissions on a continuous basis 

or were otherwise included to ensure 

that the SIP contained continuous 

emission limitations. All of the SIP 

provisions at issue in this action 

provide automatic or discretionary 

exemptions from emission limitations 

that are formulated as restrictions on the 

‘‘quantity, rate, or concentration’’ of 

emissions from affected sources, just as 

section 302(k) describes the purpose of 

an emission limitation. Longstanding 

EPA regulations applicable to SIPs 

require that states have a control 

strategy to provide for attainment and 

maintenance of the NAAQS.171 The 

required ‘‘control strategy’’ is defined to 

be the combination of measures 

including, but not limited to, ‘‘emission 

limitations,’’ ‘‘emission control 

measures applicable to in use motor 

vehicles’’ and ‘‘transportation control 

measures’’ listed in section 108(f).172

The regulatory definition of ‘‘emission 

limitation’’ applicable to SIP provisions 

tracks the statutory definition of section 

302(k) and notably also does not define 

the term to allow exemptions for 

emissions during SSM events.173 To the 

EPA’s knowledge, none of the specific 

SIP provisions that contain or that are 

subject to the automatic or discretionary 

exemptions at issue in this SIP call 

action were developed by the states 

with the intention or expectation that 

absent the exemption they would not 

apply at all times when the source is in 

operation; i.e., they impose restrictions 

on emissions that were intended to 

apply continuously when the source is 

emitting pollutants. Logically, the states 

intended the emission limitations to 

impose limits that apply continuously at 

all times when the affected sources are 

emitting pollutants or else there would 

have been no impetus to include any 

exemptions for emissions during SSM 

events. 

However, even if the EPA were to 

accept the commenters’ premise 

arguendo—that inclusion of an SSM 

exemption in a given SIP provision 

turns ‘‘emission limitations’’ into ‘‘other 

control measures, means, or 

techniques,’’ this would not be a 

reasonable reading of the requirements 

of section 110(a)(2)(A) and section 

302(k) for several reasons. To the extent 

that either section 110(a)(2)(A) or 

section 302(k) is ambiguous with 

respect to this point, the EPA does not 

interpret the CAA to allow exemptions 

for emissions during SSM events in SIP 

provisions in the way advocated by the 

commenters. 

First, section 110(a)(2)(A) explicitly 

requires that SIPs must contain 

emission limitations as necessary to 

meet various CAA requirements. 

Section 302(k) requires that such 

emission limitations must limit ‘‘the 

quantity, rate, or concentrations of 

emissions of air pollutants on a 

continuous basis.’’ Moreover, section 

302(k) reiterates that the term 

‘‘continuous emission limitation’’ also 

specifically includes ‘‘any requirement 

relating to the operation or maintenance 

of a source to assure continuous 

emission reduction.’’ Lest there be 

doubt, section 302(m) provides a 

definition for the related term ‘‘means of 

emission limitation’’ as ‘‘a system of 

continuous emissions reduction 

(including the use of specific technology 

or fuels with specified pollution 

characteristics).’’ In the Sierra Club v. 

Johnson decision, the D.C. Circuit 

concluded that the statutory definition 

of ‘‘emission limitation’’ in section 

302(k) precludes exemptions for 

emissions during SSM events because 

such exemptions are inconsistent with 

the requirement for continuous 

controls.174 Given the emphasis that the 

statute places on the requirement that 

sources be subject to continuous 

emission controls, and given the 

emphasis that courts have placed on the 

requirement that sources be subject to 

continuous controls on their emissions, 

the EPA believes that it is illogical that 

the statutory requirement for continuous 

controls on sources could be subverted 

merely by the act of labeling a given SIP 

provision a ‘‘control measure’’ rather 

than an ‘‘emission limitation.’’ The 

commenters’ argument that if a given 

SIP provision contains an SSM 

exemption, it is merely a ‘‘control 

measure[ ], mean[ ], or technique[ ]’’ 

reduces the explicit requirement for 

continuous controls on emissions to a 

semantic exercise. 

Second, the EPA believes that the 

commenters’ reading of the statute to 

permit SIP provisions to contain an 

SSM exemption by virtue of what it is 

labeled is incorrect if taken to its logical 

extreme. The commenters’ 

interpretation of section 110(a)(2)(A) 

would theoretically allow a SIP to 

contain no emission limitations 

whatsoever, merely a collection of 

requirements labeled ‘‘control 

measures’’ so that sources can be 

excused from having to limit emissions 

on a continuous basis. This result is 

contrary to judicially approved EPA 

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175See, e.g., Kennecott Copper Corp. v. Train, 526 

F.2d 1149, 1153 (9th Cir. 1975). The current version 

of section 110(a)(2)(A) is admittedly worded 

differently than the 1970 version. However, for 

purposes of these commenters the critical 

distinction is not that Congress changed the 

location of the word ‘‘necessary’’ but rather that 

Congress changed the subject that ‘‘necessary’’ 

modifies—and thus the entire scope of 

110(a)(2)(A)—from satisfying the NAAQS to 

meeting ‘‘applicable requirements’’ of the entire 

CAA. 

176See, e.g., S. Rept. 101–228, at 20 (noting that 

the structure of section 110(a)(2)(A) as it appears 

today reflects congressional intent to ‘‘combine and 

streamline’’ previously existing SIP requirements 

into a single provision). 

177See 40 CFR 51.100(n). 

178See, e.g., 71 FR 7683 (February 14, 2006) 

(approving as BACM the use of ‘‘conservation 

management practices’’ to control fugitive dust 

emissions from agricultural sources, including 

techniques that limit emissions only during certain 

activities or times); 68 FR 56181 (September 30, 

2003) (approving as BACM an ‘‘episodic wood 

burning curtailment’’ program that restricts the use 

of wood-burning stoves based on predicted 

particulate matter concentrations). 179CAA section 302(k). 

interpretations of prior versions of the 

CAA as requiring all SIPs to include 

continuously applicable emission 

limitations and only requiring ‘‘other’’ 

additional controls ‘‘as may be 

necessary’’ to satisfy the NAAQS.175

Additionally, this result is contrary to 

legislative history of the 1990 Clean Air 

Act Amendments, which indicates that 

in slightly revising this portion of 

section 110(a)(2)(A), Congress intended 

to merely ‘‘combine and streamline’’ 

previously existing SIP requirements 

into a single provision, not to vitiate 

statutory requirements concerning 

emission limitations.176

Finally, the EPA’s interpretation of 

the requirements of section 110(a)(2) 

does not render the ‘‘other control’’ 

language in the statute superfluous as 

claimed by the commenters. In addition 

to emission limitations, the EPA 

interprets that section to allow other 

‘‘control measures, means or 

techniques’’ as contemplated by the 

statute. For example, the EPA’s 

regulations implementing SIP 

requirements explicitly enumerate nine 

separate types of measures that states 

may include in SIPs.177 This list of nine 

different forms of potential SIP 

provisions to reduce emissions varies 

broadly, from measures that ‘‘impose 

emission charges or taxes or other 

economic incentives or disincentives’’ 

to ‘‘changes in schedules or methods of 

operation of commercial or industrial 

facilities’’ to ‘‘any transportation control 

measure including those transportation 

measures listed in section 108(f).’’ The 

EPA made clear that this list is not allinclusive. In addition, the EPA has, 

when appropriate, approved SIP 

provisions that impose various forms of 

emissions controls that are not, by 

definition, emission limitations.178

Thus, the commenters are in error in 

their belief that the EPA’s reading of the 

statute to require that SIPs contain 

emission limitations that apply 

continuously ignores the other forms of 

potential measures that section 

110(a)(2)(A) authorizes. 

Section 110(a)(2) requires SIPs to 

include enforceable emission 

limitations and other controls ‘‘as 

necessary or appropriate to meet the 

applicable requirements’’ of the CAA. 

Regardless of whether commenters’ 

semantic labeling arguments are valid in 

the abstract, they are not correct with 

respect to the fundamental CAA 

requirements for SIPs relating to 

continuous emission limitations. The 

automatic or discretionary exemptions 

for emissions during SSM events in the 

SIP provisions at issue in this SIP call 

authorize exemptions from statutorily 

required emission limitations. To the 

extent that such a SIP provision would 

functionally or legally exempt sources 

from regulation during SSM events, the 

SIP provision fails to be a continuously 

applicable enforceable emission 

limitation as required by the CAA. The 

fact that a SIP may also contain ‘‘other 

control[s]’’ as advocated by the 

commenters does not negate the 

statutory requirement that emission 

limitations must apply continuously. 

g. Comments that the definition of 

‘‘emission limitation’’ in section 302(k) 

does not require that all forms of 

emission limitations must apply 

continuously. 

Comment: Section 110(a)(2)(A) 

requires that SIPs must contain 

emission limitations, and section 302(k) 

defines the term ‘‘emission limitation’’ 

to mean a limit on emissions from a 

source that applies continuously. A 

number of commenters disagreed that 

section 302(k) requires that all 

‘‘emission limitations’’ have to be 

‘‘continuous.’’ The commenters argued 

that section 302(k) establishes two 

distinct categories of emission 

limitations: (1) Requirements that 

‘‘limit[ ] the quantity, rate, or 

concentration of emissions of air 

pollutants on a continuous basis, 

including any requirement relating to 

the operation or maintenance of a 

source to assure continuous emission 

reduction,’’ and (2) requirements 

constituting a ‘‘design, equipment, work 

practice or operational standard 

promulgated under this chapter.’’ These 

commenters claimed that only the first 

purported category is emission 

limitations that must be continuous and 

that the second purported category is 

emission limitations that do not need to 

apply continuously. Accordingly, these 

commenters asserted that SIP provisions 

that are rendered noncontinuous by 

inclusion of exemptions for emissions 

during SSM events are still legally valid 

‘‘emission limitations’’ because they fall 

within the second category. Other 

commenters separately contended that 

under section 302(k), SIP provisions 

imposing requirements ‘‘relating to the 

operation or maintenance of sources’’ do 

not need to be continuous, unlike those 

imposing requirements that limit ‘‘the 

quantity, rate, or concentration of 

emissions or air pollutants.’’ 

Response: The EPA disagrees with the 

commenters’ view that section 302(k) 

establishes two discrete categories of 

emission limitations, only one of which 

must reduce continuous emissions on a 

continuous basis. The EPA 

acknowledges that the text of section 

302(k) is ambiguous with respect to this 

point, but the Agency does not agree 

with the commenters’ interpretation of 

the statute. The statutory text of section 

302(k) begins with a catch-all definition 

of the term ‘‘emission limitation’’ as ‘‘a 

requirement established by the State or 

the Administrator which limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis . . . .’’ 179 The EPA 

believes that the rest of the first 

sentence in section 302(k), beginning 

with the word ‘‘including,’’ is best read 

as a list of examples of types of 

measures that satisfy this general 

definition. In other words, the 

remainder of the sentence provide 

examples of types of SIP provisions that 

could be used to limit emissions on a 

continuous basis, including any design 

standard, equipment standard, work 

practice standard or operational 

standard promulgated under the CAA, 

as well as ‘‘any requirement relating to 

the operation or maintenance of a 

source to assure continuous emission 

reduction.’’ However, each of these 

forms of emission limitation would be 

required to apply at all times, or be 

required to apply in combination at all 

times, in order to meet the fundamental 

requirement that the emission limitation 

serves to limit emissions from the 

affected sources continuously. Thus, the 

EPA interprets the term ‘‘emission 

limitation’’ to permit emission 

limitations that are composed of a 

combination of numerical limitations, 

technological control requirements and/ 

or work practice requirements, so long 

as they are components of an emission 

limitation that applies continuously. 

This interpretation accords with 

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180See, e.g., CAA section 302(m) (defining 

‘‘means of emission limitation’’ as a ‘‘system of 

continuous emission reduction’’). 

181See e.g., H.R. Rep. 95–294, at 92 (1977) 

(explaining that the definition of ‘‘emission 

limitation,’’ like the definition of ‘‘standard of 

performance,’’ was intended to ‘‘ma[ke] clear that 

constant or continuous means of reducing 

emissions must be used to meet th[ose] 

requirements’’); S. Rep. 95–127, at 94 (explaining 

that the definition of ‘‘emission limitation’’ was 

intended to ‘‘clarify the committee’s view that the 

only acceptable basic strategy is one based on 

continuous emission control,’’ rather than 

‘‘unacceptable’’ ‘‘[i]ntermittent controls or 

dispersion techniques . . . .’’). 

182See, e.g., Sierra Club v. Johnson, 551 F.3d 

1019, 1027–28 (D.C. Cir. 2008). 

183See 40 CFR 51.100(n) (defining ‘‘emission 

limitation’’ as a requirement that limits emissions 

on a continuous basis). 

184See CAA section 302(k). 

185 486 F.2d 375 (D.C. Cir. 1973). 

186 486 F.2d 427 (D.C. Cir. 1973). 

187See Sierra Club v. Johnson, 551 F.3d 1019 

(D.C. Cir. 2008); NRDC v. EPA, 749 F.3d 1055 (D.C. 

Cir. 2014). 

188Portland Cement Ass’n, 486 F.2d at 398. 

189 Id. at 399. 

statutory context,180 the legislative 

history regarding the definition of 

‘‘emission limitation,’’ 181 judicial 

interpretations of section 302(k) 182 and 

the EPA’s definition of ‘‘emission 

limitation’’ in its SIP regulations.183

Accordingly, the EPA’s interpretation of 

section 302(k) is reasonable. 

The EPA also disagrees with the 

commenters who contended that the 

third clause of section 302(k) authorizes 

exemptions for emissions during SSM 

events in emission limitations. The 

commenters argued that requirements 

‘‘relating to the operation or 

maintenance of sources’’ do not have to 

be continuous. The EPA believes that 

this reading of the statute is simply in 

error, because section 302(k) on its face 

provides that these requirements must 

‘‘assure continuous emission 

reduction.’’ 184

h. Comments that exemptions or 

affirmative defenses are not only not 

prohibited, but are actually required by 

the CAA because they are necessary to 

make an emission limitation 

‘‘reasonable’’ or ‘‘achievable’’ for 

sources that cannot comply during SSM 

events. 

Comment: Commenters argued that 

some emission limitations currently in 

SIPs are only ‘‘reasonable’’ or 

technologically ‘‘achievable’’ because 

they include exemptions or affirmative 

defenses applicable to emissions during 

SSM events. According to these 

commenters, without exemptions or 

affirmative defenses to excuse sources 

from compliance with the limits during 

SSM events, these emission limitations 

would not be reasonable or achievable 

as required by law. To support these 

contentions, commenters cited case law 

from the early 1970s to argue that the 

CAA requires emission limitations in 

SIP provisions to include exemptions or 

affirmative defenses for SSM events. 

Response: The EPA agrees that SIP 

provisions should impose emission 

limitations that are reasonable and 

achievable by sources, so long as they 

are also consistent with the applicable 

legal requirements for that type of 

provision. The EPA acknowledges that 

in some cases, emission limitations may 

need to include alternative numerical 

limitations, technological controls or 

work practices during some modes of 

operation, such as startup and 

shutdown. As explained in detail in the 

February 2013 proposal and in this 

action, the EPA interprets the CAA to 

allow SIP provisions to include different 

numerical limitations or other control 

requirements as components of a 

continuously applicable emission 

limitation, so long as the SIP provision 

meets all other applicable requirements. 

However, the EPA disagrees with these 

commenters’ conclusions that the need 

for ‘‘reasonable’’ and ‘‘achievable’’ 

emission limitations provides a legal 

justification for exemptions or 

affirmative defenses for excess 

emissions during SSM events. 

First, many of the commenters 

erroneously presupposed that an 

emission limitation must continuously 

control emissions at the same rate, 

quantity, or concentration at all times. 

For sources or source categories that 

cannot comply with otherwise 

applicable emission limitations during 

certain modes of operation, such as 

startup and shutdown, the state may 

elect to develop alternative emission 

limitations applicable during those 

events as a component of the SIP 

provision. The EPA has provided 

recommended criteria for states to use 

in developing appropriate alternative 

emission limitations. Appropriate 

alternative emission limitations would 

ensure the existence of requirements 

that limit the quantity, rate or 

concentration of pollutants from the 

affected sources on a continuous basis, 

while also providing differing 

limitations tailored specifically to limit 

emissions during specified modes of 

source operation. As long as those 

differing limitations are components of 

a continuously applicable emission 

limitation that meets other applicable 

substantive requirements (e.g., is RACT 

for stationary sources in nonattainment 

areas) and that is legally and practically 

enforceable, then such alternative 

emission limitations are valid. States are 

not required to create such alternative 

emission limitations, but to do so is an 

acceptable approach. 

Second, these commenters pointed to 

no provision of the CAA requiring or 

allowing exemptions or affirmative 

defenses for SSM events. Instead, they 

contend that D.C. Circuit opinions in 

Portland Cement Association v. 

Ruckelshaus 185 and Essex Chemical 

Corp. v. Ruckelshaus 186 require SIPs to 

include exemptions for emissions 

during SSM events. As an initial matter, 

these cases predate amendments to the 

CAA that expressly defined ‘‘emission 

limitation’’ as a requirement that 

continuously limits emissions. 

Furthermore, even accepting these 

commenters’ interpretations of those 

cases (which as explained below, EPA 

does not), any purported holdings to 

that effect have been further eroded by 

more recent case law from the D.C. 

Circuit and other courts. Most 

importantly, the Sierra Club v. Johnson 

decision has reiterated that emission 

limitations must apply continuously in 

order to comply with section 302(k), 

and the logic of NRDC v. EPA decision 

indicates that affirmative defense 

provisions are not appropriate because 

they purport to alter the jurisdiction of 

the courts.187

In addition to these more recent legal 

developments, however, the two earlier 

D.C. Circuit cases highlighted by 

commenters simply did not hold what 

commenters claim that they held. With 

respect to the Portland Cement 

Association decision, commenters 

selectively quoted from the case for the 

proposition that the D.C. Circuit had 

‘‘acknowledged’’ that malfunctions are 

an inescapable aspect of industrial life 

and that EPA must make allowances for 

malfunctions when promulgating 

standards. The full sentence from the 

opinion, however, makes clear that the 

D.C. Circuit was merely summarizing 

the ‘‘concern of manufacturers,’’ not 

stating the court’s own position.188 To 

the contrary, the EPA believes that 

Portland Cement stands for the broader 

proposition that a system incorporating 

flexibility is reasonable and consistent 

with the overall intent of the CAA, and 

the EPA merely ‘‘may’’ take such 

flexibility into account.189 As relevant 

to this action, the flexibility provided 

states to ensure continuous controls by 

developing alternative emission 

limitations is fully consistent with that 

view of the CAA. SIP provisions that 

include alternative emission limitations 

provide the sort of ‘‘limited safety 

valve’’ contemplated by the courts that 

can serve to make SIP emission 

limitations more achievable without 

authorizing complete exemptions for 

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190 Id. (citing International Harvester, 478 F.2d 

615, 641 (D.C. Cir. 1973)). 

191Essex Chem. Corp v. Ruckelshaus, 486 F.2d at 

433 (emphasis added). 

192See id. 

193 Id. (‘‘the record does not support the ‘never to 

be exceeded’ standard currently in force’’). 

194Essex Chem. Corp v. Ruckelshaus, 486 F.2d 

427, 433 (D.C. Cir. 1973). 

195Numerical requirements or preferences for 

some emission limitations flow from substantive 

requirements of specific CAA programs, which are 

incorporated into section 110(a)(2)(A) by the 

requirement that SIPs ‘‘include enforceable 

emission limitations . . . as may be necessary or 

appropriate to meet the applicable requirements of’’ 

the CAA. CAA section 110(a)(2)(A). 

196See, e.g., id., section 112(h)(4). 

197For example, emission limitations must meet 

the requirements of various substantive provisions 

of the CAA and must be legally and practically 

enforceable. 

emissions during SSM events in 

violation of statutory requirements.190

Commenters also cited Essex 

Chemical Corp. for the proposition that 

SSM exemptions are necessary to ensure 

that standards are reasonable. This court 

decision, however, also did not hold 

that emission limitations must provide 

exemptions or affirmative defenses for 

excess emissions during SSM events. To 

the contrary, the petitioners’ complaint 

in Essex Chemical Corp. was that EPA 

had ‘‘fail[ed] to provide that lesser 

standards, or no standards at all, should 

apply when the stationary source is 

experiencing startup, shutdown, or 

mechanical malfunctions through no 

fault of the manufacturer.’’ 191 It was 

these variant provisions that, in the 

court’s opinion, ‘‘appear[ed] necessary’’ 

to ensure that the standards before it 

were reasonable.192 Again, the EPA 

believes that emission limitations in SIP 

provisions may include alternative 

emission limitations that can provide 

those ‘‘lesser standards’’ that apply 

during startup and shutdown events 

consistent with the court’s opinion but 

also ensure that emissions are 

continuously limited as required by the 

1977 CAA Amendments defining 

‘‘emission limitation.’’ 

As a legal matter, the court in Essex 

Chemical was reviewing a specific 

‘‘never to be exceeded’’ standard for 

new and modified sources and 

addressed only whether the EPA’s 

failure to provide some form of 

flexibility during SSM events was 

supported by the record; 193 the court 

was not interpreting whether the CAA 

inherently required such exemptions 

(rather than alternative limits) 

regardless of future developments in 

technology. Accordingly, the D.C. 

Circuit ultimately remanded the 

challenged standards to the EPA for 

reconsideration, not because SSM 

exemptions are mandatory but rather 

because of comments made by the EPA 

Acting Administrator and deficiencies 

identified in the administrative record 

with respect to ‘‘never to be exceeded’’ 

limits for those specific standards. In 

short, the Essex Chemical court did not 

hold that the CAA ‘‘requires’’ emission 

limitations to include exemptions for 

emissions during SSM events as 

suggested by commenters. 

Furthermore, the EPA notes that the 

most salient legal holding of Essex 

Chemical with respect to achievability 

is not what the court said about the 

circumstances peculiar to the EPA’s 

development of those specific standards 

but rather is the court’s holding that 

standards of performance can be 

‘‘achievable’’ even if there is no facility 

‘‘currently in operation which can at all 

times and under all circumstances meet 

the standards . . . .’’ 194 Thus, the 

decision supports the EPA’s conclusion 

that the CAA requires appropriately 

drawn emission limitations that apply 

on a continuous basis. As explained in 

section IV of this document, SIP 

provisions also cannot include the 

affirmative defenses advocated by 

commenters, because those are 

inconsistent with CAA provisions 

concerning the jurisdiction of the 

courts. 

i. Comments that the EPA is requiring 

that all SIP emission limitations must be 

‘‘numerical’’ at all times and set at the 

same numerical level at all times. 

Comment: Many commenters on the 

February 2013 proposal evidently 

believed that the EPA was proposing an 

interpretation of the term ‘‘emission 

limitation’’ under section 302(k) that 

would requires all SIP provisions to 

impose numerical emission limits, and 

that such limits must be set at the same 

numerical level at all times. These 

commenters argued that numerical 

emission limitations are not required by 

the text of section 302(k). For example, 

commenters pointed to section 302(k)’s 

use of ‘‘work practice or operational 

standard[s]’’ as evidence that an 

emission limitation may be composed of 

more than merely numerical criteria. 

These commenters also reiterated their 

view that section 302(k) allows for or 

requires alternative limits during 

periods of SSM, including nonnumerical alternative limits such as 

work practice or operational standards. 

Response: At the outset, the EPA 

notes that it did not intend to imply that 

all emission limitations in SIP 

provisions must be expressed 

numerically, or that they must be set at 

the same numerical level for all modes 

of source operation. To the contrary, the 

EPA intended to indicate that states may 

elect to create emission limitations that 

include alternative emission limitations 

that apply during certain modes of 

source operation, such as startup and 

shutdown. This was the reason for 

inclusion of the recommended criteria 

for states to develop appropriate 

alternative emission limitations 

applicable during startup and shutdown 

in section VII.A of the February 2013 

proposal. The EPA has provided similar 

recommended criteria in this final 

action (see section VII.B.2 of this 

document). The EPA agrees that neither 

section 110(a)(2)(A) nor section 302(k) 

inherently requires that SIP emission 

limitations must be expressed 

numerically. Furthermore, section 

302(k) does not itself require imposition 

of numerical limitations or foreclose the 

use of higher numerical levels, specific 

technological controls or work practices 

during certain modes of operation. 

Although some CAA programs may 

require or impose a presumption that 

emission limitations be expressed 

numerically, the text of section 

110(a)(2)(A) and section 302(k) does not 

expressly state a preference for emission 

limitations that are in all cases 

numerical in form.195 Rather, as many 

commenters pointed out, the critical 

aspect of an emission limitation in 

general is that it be a ‘‘requirement 

. . . which limits the quantity, rate, or 

concentration of emissions of air 

pollutants on a continuous basis 

. . . .’’ 196 Accordingly, although other 

regulatory requirements may also apply, 

a non-numerical design standard, 

equipment standard, work practice 

standard or operational standard could 

theoretically meet the definition of 

‘‘emission limitation’’ for purposes of 

section 302(k) if it continuously limited 

the quantity, rate or concentration of air 

pollutants.197 By contrast, if a nonnumerical requirement does not itself 

(or in combination with other 

components of the emission limitation) 

limit the quantity, rate or concentration 

of air pollutants on a continuous basis, 

then the non-numerical standard (or 

overarching requirement) does not meet 

the statutory definition of an emission 

limitation under section 302(k). 

Finally, the EPA does not believe that 

section 110(a)(2)(A) or section 302(k) 

mandates that an emission limitation be 

composed of a single, uniformly 

applicable numerical emission 

limitation. As the EPA stated in the 

February 2013 proposal, ‘‘[i]f sources in 

fact cannot meet the otherwise 

applicable emission limitations during 

planned events such as startup and 

shutdown, then an air agency can 

develop specific alternative 

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198 78 FR 12459 at 12471. 

199See CAA section 110(a)(2)(A). 

200Kamp v. Hernandez, 752 F.2d 1444, 1452–53 

(9th Cir. 1985) (citing Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, 467 U.S. 837 (1984)) 

(upholding EPA’s ‘‘broader definition of 

‘continuous’ ’’ under section 302(k)). 

201Sierra Club v. Johnson, 551 F.3d 1019, 

1027–28 (D.C. Cir. 2008) (quoting Kamp, 752 F.2d 

at 1452). 

202See, e.g., H.R. Rep. 95–294, at 92 (1977) 

(explaining that the definition of ‘‘emission 

limitation,’’ like the definition of ‘‘standard of 

performance,’’ was intended to ‘‘ma[ke] clear that 

constant or continuous means of reducing 

emissions must be used to meet th[ose] 

requirements’’); S. Rep. 95–127, at 94 (explaining 

that the definition of ‘‘emission limitation’’ was 

intended to ‘‘clarify the committee’s view that the 

only acceptable basic strategy is one based on 

continuous emission control,’’ rather than 

‘‘unacceptable’’ ‘‘[i]ntermittent controls or 

dispersion techniques . . . .’’). 

203H.R. Rep. 95–294, at 92 (1977), as reprinted in 

1977 U.S.C.C.A.N. 1077, 1170); Sierra Club v. 

Johnson, 551 F.3d at 1027 (quoting the same); Kamp 

v. Hernandez, 752 F.2d at 1453–54 (quoting the 

same). 

204As discussed above and elsewhere in this 

document, those requirements include satisfying 

the definition of ‘‘emission limitation’’ under CAA 

section 302(k), and being ‘‘enforceable’’ in 

accordance with section 110(a)(2)(A). 

requirements that apply during such 

periods, so long as they meet other 

applicable CAA requirements.’’ 198 As 

explained in the EPA’s response in 

section VII.A.3 of this document 

regarding the meaning of the statutory 

term ‘‘continuous,’’ the critical aspect 

for purposes of section 302(k) is not 

whether the emission limitation is 

expressed as a static versus variable 

numerical limitation but rather whether 

as a whole it constitutes a requirement 

that limits emissions on a continuous 

basis. Furthermore, any emission 

limitation must also meet all other 

applicable CAA requirements 

concerning stringency and 

enforceability. 

j. Comments that an emission 

limitation can be ‘‘continuous’’ even if 

it has different numerical limitations 

applicable during some modes of source 

operation or has a combination of 

numerical emission limitations and 

specific control technologies or work 

practices applicable during other modes 

of operation. 

Comment: Several commenters argued 

that an emission limitation can be 

‘‘continuous’’ under section 302(k) even 

if it provides different substantive 

requirements applicable during SSM 

events. One commenter illustrated this 

position with a hypothetical: 

[W]hile Section 302 requires ‘‘emission 

limits’’ to be ‘‘continuous,’’ it does not 

specify . . . that the same ‘‘emission limit’’ 

must apply at all times. That is, if a state 

chooses to require sources to comply with a 

40% opacity limit during steady-state 

operations, the Act does not then require the 

state to apply that 40% limit at all times, 

including startup, shutdown and malfunction 

events. 

Commenters pointed to a number of 

sources as justification for this position, 

including the text of section 302(k), 

relevant case law, legislative history of 

the 1977 CAA Amendments, prior EPA 

interpretations, and practical concerns. 

Response: The EPA agrees with these 

commenters’ conclusion that an 

‘‘emission limitation’’ under section 

302(k) does not need to be expressed as 

a static, inflexible limit on emissions. 

Rather, a SIP provision qualifying as an 

‘‘emission limitation’’ consistent with 

section 302(k) must merely limit ‘‘the 

quantity, rate, or concentration’’ of 

emissions, and must do so ‘‘on a 

continuous basis.’’ The critical aspect 

for purposes of section 302(k) is that the 

SIP provision impose limits on 

emissions on a continuous basis, 

regardless of whether the emission 

limitation as a whole is expressed 

numerically or as a combination of 

numerical limitations, specific control 

technology requirements and/or work 

practice requirements, and regardless of 

whether the emission limitation is static 

or variable. For example, so long as the 

SIP provision meets other applicable 

requirements, it may impose different 

numerical limitations for startup and 

shutdown. 

The EPA also agrees that the text of 

section 302(k) does not require states to 

impose emission limitations that 

include a static, inflexible standard. 

Rather, the term ‘‘emission limitation’’ 

is merely defined as a ‘‘requirement 

established by the State or the 

Administrator which limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis. . . .’’ The continuous 

limits imposed by emission limitations 

are a fundamental distinction between 

emission limitations and the other 

control measures, means or techniques 

that may also limit emissions.199 The 

text of section 302(k), however, does not 

distinguish between a variable or static 

‘‘requirement’’ that continuously limits 

emissions—all that is required is that 

the emissions are limited on a 

continuous basis. 

This interpretation is consistent with 

prior EPA interpretations of section 

302(k), as well as relevant case law. In 

Kamp v. Hernandez, the U.S. Court of 

Appeals for the Ninth Circuit (Ninth 

Circuit) upheld the EPA’s interpretation 

of ‘‘continuous’’ in section 302(k), as 

requiring that ‘‘some limitation on 

emissions, although not necessarily the 

same limitation, is always imposed’’ on 

the source.200 More recently, the D.C. 

Circuit favorably cited Kamp when 

holding that section 302(k) requires 

emission standards to limit emissions 

on a continuous basis and precludes 

exemptions for emissions during SSM 

events.201

Legislative history confirms that 

Congress was primarily concerned that 

there be constant or continuous means 

of reducing emissions—not that the 

nature of those controls could not be 

different during different modes of 

operation.202 For example, legislative 

history from the 1977 CAA 

Amendments states that Congress added 

section 302(k)’s definition of ‘‘emission 

limitation’’ to: 

. . . ma[ke] clear that constant or continuous 

means of reducing emissions must be used to 

meet these requirements. By the same token, 

intermittent or supplemental controls or 

other temporary, periodic, or limited systems 

of control would not be permitted as a final 

means of compliance.203

Although this legislative history 

demonstrates congressional intent that 

any ‘‘emission limitation’’ would 

require limits on emissions at all times, 

this history does not necessarily 

indicate that the emission limitation 

must consist of a single static numerical 

limitation. Accordingly, this legislative 

history is consistent with the EPA’s 

view that section 302(k) requires 

continuous limits on emissions and that 

variable (albeit still continuous) limits 

on emissions can qualify as an emission 

limitation for purposes of section 

302(k). 

Finally, although the EPA agrees with 

these commenters’ conclusion, the EPA 

does not agree with these commenters’ 

view that practical concerns require 

states in all cases to establish alternative 

emission limitations for modes of 

operation such as startup and shutdown 

within any continuously applicable 

emission limitation. Principles of 

cooperative federalism incorporated 

into section 110 allow states great 

leeway in developing SIP emission 

limitations, provided those limitations 

comply with applicable legal 

requirements.204 States are thus not 

required to establish alternative 

emission limitations for any sources 

during startup and shutdown, but they 

may elect to do so. Neither the 

definition of ‘‘emission limitation’’ in 

section 302(k) nor the requirements of 

section 110(a)(2)(A) explicitly require 

states to develop emission limitations 

that include alternative emission 

limitations for periods of SSM, just as 

they do not explicitly preclude states 

from doing so. 

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205 551 F.3d 1019 (D.C. Cir. 2008). 

206CAA section 302(k). 

207See Webster’s Third New International 

Dictionary 493–94 (Phillip Babcock Gove ed., 

Merriam-Webster 1993) (defining ‘‘continuous’’). 

208Sierra Club, 551 F.3d at 1027. 

209See id. (quoting H.R. Rep. 95–294, at 92 

(1977), as reprinted in 1977 U.S.C.C.A.N. 1077, 

1170); see also Kamp v. Hernandez, 752 F.2d at 

1453–54 (quoting the same and coming to the same 

conclusion). 

210See H.R. 95–294, at 92 (1977); see also section 

302 (stating that the definitions appearing therein 

apply ‘‘[w]hen used in this chapter’’). 

211The fact that CAA section 110 incorporates 

principles of cooperative federalism does not 

inevitably mean that the definition of ‘‘emission 

limitation’’ under section 302(k) changes depending 

on whether it is applied in the context of section 

110 versus section 112. Accordingly, in the context 

of judicial interpretation of a statute, the U.S. 

Supreme Court has held that judges cannot ‘‘give 

the same statutory text different meanings in 

different cases.’’ Clark v. Martinez, 543 U.S. 371, 

386 (2005). The EPA believes that the text and 

legislative history of section 302(k) evince 

congressional intent to consistently apply the 

definition of ‘‘emission limitation’’ under section 

302(k) rather than to develop an inconsistent 

interpretation peculiar to section 110. 

212H.R. 95–294, at 92 (emphasis added). 

213 Id. (emphasis added). The Senate Report 

expressed a similar sentiment. See S. Rep. No. 95– 

127, at 94–95 (1977) (explaining that the definition 

of ‘‘emission limitation’’ was intended ‘‘to clarify 

the committee’s view that the only acceptable basic 

strategy [for emission limitations in SIPs] is one 

based on continuous emission control’’). 

214See H.R. 95–294, at 92. 

215See id. 

216See, e.g., NRDC v. EPA, 749 F.3d 1055, 1064 

(D.C. Cir. 2014) (holding that an affirmative defense 

for excess emissions during malfunctions 

contradicts the requirement that an emission 

limitation be ‘‘continuous’’). 

k. Comments that an emission 

limitation can be ‘‘continuous’’ even if 

it includes periods of exemptions from 

the emission limitation. 

Comment: Commenters asserted that a 

requirement limiting emissions can be 

‘‘continuous’’ even if a SIP provision 

includes periods of exemption from that 

limit. For example, some commenters 

contended that SSM exemptions only 

excuse compliance with emission 

limitations for a ‘‘short duration,’’ or 

‘‘brief’’ period of time, and that these 

purportedly ephemeral interruptions 

should not be viewed as rendering the 

requirement noncontinuous. Other 

commenters contended that the EPA 

misinterpreted portions of the D.C. 

Circuit’s opinion in Sierra Club v. 

Johnson,205 interpreting section 302(k). 

Specifically, this group of commenters 

claimed that because the holding of that 

case was based on a combined reading 

of sections 112 and 302(k), the court’s 

interpretation of the word ‘‘continuous’’ 

in section 302(k) does not extend 

outside the context of section 112. This 

included one commenter who 

suggested, in a one-sentence footnote, 

that ‘‘[i]n the cooperative-federalism 

context’’—presumably of section 110— 

‘‘the standard of flexibility that Congress 

gave the States with respect to selecting 

the elements of their SIPs is not 

necessarily the same standard Congress 

set to govern EPA’s responsibility to 

establish the NAAQS or section 112 

standards.’’ Still other commenters 

further argued that the EPA 

mischaracterized legislative history 

discussing ‘‘continuous’’ in section 

302(k). According to these commenters, 

the context of legislative history on 

section 302(k) indicates that Congress 

did not intend for the word 

‘‘continuous’’ to be given its plain 

meaning but rather intended to use 

‘‘continuous’’ in relation only to specific 

types of intermittent controls. 

Response: The EPA disagrees with 

these commenters. First, commenters’ 

interpretation would contravene the 

plain meaning of ‘‘continuous.’’ Section 

302(k) defines ‘‘emission limitation’’ as 

a requirement that ‘‘limits the quantity, 

rate, or concentration of emissions of air 

pollutants on a continuous 

basis. . . .’’ 206 Although the word 

‘‘continuous’’ is not separately defined 

in the Act, its plain and unambiguous 

meaning is ‘‘uninterrupted.’’ 207

Accordingly, to the extent that a SIP 

provision provides for any period of 

time when a source is not subject to any 

requirement that limits emissions, the 

requirements limiting the source’s 

emissions by definition cannot do so 

‘‘on a continuous basis.’’ Such a source 

would not be subject to an ‘‘emission 

limitation,’’ as that term is defined 

under section 302(k). The same 

principle applies even for ‘‘brief’’ 

exemptions from limits on emissions, 

because such exemptions nevertheless 

render the emission limitation 

noncontinuous. 

Second, the EPA disagrees with 

commenters’ interpretation of the D.C. 

Circuit’s opinion in Sierra Club. While 

the court’s ultimate decision was based 

on ‘‘sections 112 and 302(k) . . . read 

together,’’ 208 the court’s analysis of 

what makes a standard ‘‘continuous’’ 

was based on section 302(k) alone.209

Although the precise components of an 

emission limitation or standard may 

expand depending on which other 

provisions of the CAA are applicable, 

the bedrock definition for what it means 

to be an ‘‘emission limitation’’ under 

section 302(k) does not. Congress 

appeared to share the EPA’s view that 

section 302(k) provides a bedrock 

definition of ‘‘emission limitation’’ 

applicable ‘‘to all emission limitations 

under the act, not just to limitations 

under sections 110, 111, or 112 of the 

act.’’ 210 Accordingly, the D.C. Circuit’s 

interpretation of section 302(k) applies 

equally in the context of SIP provisions 

developed by states as in the context of 

MACT standards developed by the EPA, 

even if additional requirements may be 

different.211

Finally, the EPA rejects commenters’ 

contention that section 302(k)’s 

legislative history indicates that use of 

the word ‘‘continuous’’ in the definition 

of ‘‘emission limitation’’ was merely 

intended to prevent the use of 

intermittent controls or, even more 

narrowly, only dispersion techniques. 

While legislative history of the 1977 

Amendments discusses at length the 

concerns associated with these types of 

controls, section 302(k) was not 

intended to merely prevent the narrow 

problem of intermittent controls. To the 

contrary, the House Report states that 

under section 302(k)’s definition of 

emission limitation, ‘‘intermittent or 

supplemental controls or other 

temporary, periodic, or limited systems 

of control would not be permitted as a 

final means of compliance.’’ 212

In explaining congressional intent 

behind adopting a statutory definition of 

‘‘emission limitation,’’ the House Report 

articulated a rationale broader than 

would apply if Congress had merely 

intended to prohibit the tall stacks and 

dispersion techniques that commenters 

claim were targeted: ‘‘Each source’s 

prescribed emission limitation is the 

fundamental tool for assuring that 

ambient standards are attained and 

maintained. Without an enforceable 

emission limitation which will be 

complied with at all times, there can be 

no assurance that ambient standards 

will be attained and maintained.’’ 213 By 

contrast, Congress criticized limitations 

structured in ways that could not 

‘‘provide assurances that the emission 

limitation will be met at all times,’’ or 

that would sometimes allow the 

‘‘emission limitation [to] be exceeded, 

perhaps by a wide margin . . . .’’ 214

Such flaws ‘‘would defeat the remedy 

provision provided by section 304 of the 

act which allows citizens to assure 

compliance with emission limitations 

and other requirements of the act.’’ 215

Exemptions for emissions during SSM 

events have the same effects.216

In adopting section 302(k)’s definition 

of ‘‘emission limitation,’’ Congress did 

not merely intend to prohibit the use of 

intermittent controls as final 

compliance strategies—much less 

intermittent controls as narrowly 

defined by commenters to mean only 

dispersion techniques and certain ‘‘tall 

stacks.’’ Rather, Congress intended to 

eliminate the fundamental problems 

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217See, e.g., H.R. 95–294, at 94 (noting that the 

provision was intended to overcome ‘‘objections’’ to 

such measures, not merely the measures 

themselves); id. at 92 (indicating that the problems 

arise from ‘‘temporary, periodic, or limited systems 

of control’’ generally, not merely dispersion 

techniques or tall stacks). 

218See 78 FR 12459 at 12512 (citing S.C. Code 

Ann. Regs. 61–62.5 St 5.2(I)(b)(14)). 

219See, e.g., Clean Air Act of 1970, Public Law 

91–604, section 4(a), 84 Stat. 1676, 1680 (December 

31, 1970). 

220Section 110(a)(2)(A). 

221See 78 FR 12459 at 12512 (citing S.C. Code 

Ann. Regs. 61–62.5 St 5.2(I)(b)(14)). 

that were illustrated by use of those 

controls.217 SSM exemptions and 

affirmative defenses raise many of the 

same problems, and addressing those 

problems through this action fully 

accords with section 302(k)’s legislative 

history. 

l. Comments that the ‘‘as may be 

necessary or appropriate’’ language in 

section 110(a)(2)(A) per se authorizes 

states to create exemptions in SIP 

emission limitations. 

Comment: Some commenters 

contended that section 110(a)(2)(A) 

merely requires states to include 

emission limitations and other control 

measures in their SIPs ‘‘as may be 

necessary or appropriate.’’ These 

commenters interpreted that language as 

a broad delegation of discretion to states 

to develop SIP provisions that are 

necessary or appropriate to satisfy the 

particular needs of a state, as judged 

solely by that state. Some of the 

commenters argued that the EPA’s 

interpretation of ‘‘as may be necessary 

or appropriate’’ would, in all 

circumstances, improperly substitute 

the EPA’s judgment for that of the state 

concerning what emission limitations 

are necessary or appropriate. One 

commenter highlighted the EPA’s 

proposal to deny the Petition with 

respect to a specific SIP provision of the 

South Carolina SIP that entirely 

exempts a source category from 

regulation.218 According to this 

commenter, if the ‘‘as may be necessary 

or appropriate’’ language grants states 

the authority to exempt a source 

category from regulation entirely, then it 

must allow states to exempt sources 

selectively during SSM events. 

Some commenters further argued that 

regardless of what the terms ‘‘emission 

limitations’’ or ‘‘other control measures, 

means, or techniques’’ mean, section 

110(a)(2)(A) only requires states to 

include such emission controls in SIPs 

‘‘as may be necessary or appropriate’’ to 

meet the NAAQS, or some requirement 

germane to attainment of the NAAQS, 

such as various technology-based 

standards or general principles of 

enforceability. Commenters also 

disagreed with the EPA’s purported 

interpretation that the statutory phrase 

‘‘as may be necessary’’ only qualifies 

what ‘‘other control[s]’’ are required, 

rather than also qualifying what 

emission limitations are required. 

According to these commenters, that 

interpretation is a vestige of the 1970 

CAA and was foreclosed by textual 

changes in the 1977 CAA Amendments 

or, alternatively, the 1990 CAA 

Amendments. 

Response: The EPA disagrees with the 

commenters’ interpretation of the ‘‘as 

may be necessary or appropriate’’ 

language of section 110(a)(2)(A). As an 

initial matter, those commenters 

contending that section 110(a)(2)(A) is 

only concerned with what is ‘‘necessary 

or appropriate’’ to attain and maintain 

the NAAQS (or some requirement 

germane to the NAAQS) ignore the plain 

language of section 110(a)(2)(A). While 

the predecessor provisions to section 

110(a)(2)(A) prior to the 1990 CAA 

Amendments did indeed speak in terms 

of emissions controls ‘‘necessary to 

insure attainment and maintenance of 

[the NAAQS],’’ 219 the statute in effect 

today requires controls ‘‘necessary or 

appropriate to meet the applicable 

requirements of this chapter,’’ 220—i.e., 

to meet the requirements of the CAA as 

a whole. Thus, at a minimum, the EPA 

interprets the phrase ‘‘as may be 

necessary or appropriate’’ to include 

what is necessary or appropriate to meet 

legal requirements of the CAA, 

including the requirement that emission 

limitations must apply on a continuous 

basis. 

Regardless of whether all SIPs must 

always contain emission limitations, the 

text of the CAA is clear that the EPA is 

at a minimum tasked with determining 

whether SIPs include all emission 

limitations that are ‘‘necessary’’ (i.e., 

required) ‘‘to meet the applicable 

requirements of’’ that CAA. Broadly 

speaking, this requires that the EPA 

determine whether the SIP meets the 

basic legal requirements applicable to 

all SIPs (e.g., the requirements of section 

110(a)(2)(A) through (M)), whether the 

SIP contains emission limitations 

necessary to meet substantive 

requirements of the Act (e.g., RACTlevel controls in nonattainment areas) 

and whether all emission limitations 

and other controls, as well as the 

schedules and timetables for 

compliance, are legally and functionally 

enforceable. 

In every state subject to this SIP call, 

the EPA has previously concluded in 

approving the existing SIP provisions 

that the emission limitations are 

necessary to comply with legal 

requirements of the CAA. The states in 

question would not have developed and 

submitted them, and the EPA would not 

have approved them, unless the state 

and the EPA considered those emission 

limitations fulfilled a CAA requirement 

in the first instance. However, the 

automatic and discretionary exemptions 

for emissions during SSM events in the 

SIP provisions at issue in this action 

render those necessary emission 

limitations noncontinuous, and thus not 

meeting the statutory definition of 

‘‘emission limitations’’ as defined in 

section 302(k). Accordingly, regardless 

of whether all SIPs must always include 

emission limitations, these specific SIP 

provisions fail to meet a fundamental 

requirement of the CAA because they do 

not impose the continuous emission 

limitations required by the Act. 

The EPA also disagrees with the 

argument raised by commenters that its 

denial of the Petition with respect to a 

South Carolina SIP provision supports 

the validity of SSM exemptions in SIP 

emission limitations.221 In that 

situation, the state determined that 

regulating the source category at issue 

was not a necessary or appropriate 

means of meeting the requirements of 

the CAA. The EPA’s approval of that 

provision indicates that the Agency 

agreed with that determination. This 

factual scenario is not the same as one 

in which the state has determined that 

regulation of the source category is 

necessary or appropriate to meet CAA 

requirements. Once the determination is 

made that the source category must or 

should be regulated, then the SIP 

provisions developed by the state to 

regulate the source must meet 

applicable requirements. These include 

that any limits on emissions must be 

consistent with CAA requirements, 

including the requirement that any 

emission limitation limit emissions on a 

continuous basis. The EPA agrees that a 

state can validly determine that 

regulation of a source category is not 

necessary, so long as this is consistent 

with CAA requirements. This is not the 

same as allowing impermissible 

exemptions for emissions from a source 

category that must be regulated. 

Finally, the EPA does not agree with 

commenters’ allegations that that the 

EPA’s interpretation of section 

110(a)(2)(A) eliminates the states’ 

discretion to take local concerns into 

account when developing their SIP 

provisions. Rather, for reasons 

discussed in more detail in the EPA’s 

response in section V.D.2 of this 

document regarding cooperative 

federalism, the EPA’s interpretation is 

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222 Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. 

2000) (quoting Union Elec. Co. v. EPA, 427 U.S. 

246, 256–57 (1976)). 

223With respect to section 110(a)(2)(A), this 

means that a SIP must at least contain legitimate, 

enforceable emission limitations to the extent they 

are necessary or appropriate ‘‘to meet the applicable 

requirements’’ of the Act. Likewise, SIPs cannot 

have enforcement discretion provisions or 

affirmative defense provisions that contravene the 

fundamental requirements concerning the 

enforcement of SIP provisions. 

224See, e.g., 40 CFR 63.6(e)(3). 

225 551 F.3d 1019, 1027–28 (D.C. Cir. 2008). 

226CAA section 302(k). 

227Ala. Admin. Code Rule 335–3–14– 

.03(h)(2)(ii)(III) (emphasis added). 

228 Id. at 335–3–14–.03(h)(2)(ii) (emphasis added). 

fully consistent with the principles of 

cooperative federalism codified in the 

CAA. As courts have concluded, 

although Congress provided states with 

‘‘considerable latitude in fashioning 

SIPs, the CAA ‘nonetheless subjects the 

States to strict minimum compliance 

requirements’ and gives EPA the 

authority to determine a state’s 

compliance with the requirements.’’ 222

This interpretation is also consistent 

with congressional intent that the EPA 

exercise supervisory responsibility to 

ensure that, inter alia, SIPs satisfy the 

broad requirements that section 

110(a)(2) mandates that SIPs ‘‘shall’’ 

satisfy.223 Where the EPA determines 

that a SIP provision does not satisfy 

legal requirements, the EPA is not 

substituting its judgment for that of the 

state but rather is determining whether 

the state’s judgment falls within the 

wide boundaries of the CAA. 

m. Comments that a ‘‘general duty’’ 

provision—or comparable generic 

provisions that require sources to 

‘‘exercise good engineering judgment,’’ 

to ‘‘minimize emissions’’ or to ‘‘not 

cause a violation of the NAAQS’’— 

inoculate or make up for exemptions in 

specific emission limitations that apply 

to the source. 

Comment: Numerous commenters 

argued that even if some of the SIP 

provisions with SSM exemptions 

identified in this SIP call are not 

themselves emission limitations, they 

are nevertheless components of valid 

emission limitations. According to these 

commenters, some SIPs contain separate 

‘‘general duty’’ provisions that are not 

affected by SSM exemptions and thus 

have the effect of limiting emissions 

from sources during SSM events that are 

explicitly exempted from the emission 

limitations in the SIP. These generalduty provisions vary, but most of them: 

(1) Instruct sources to ‘‘minimize 

emissions’’ consistent with good air 

pollution control practices, (2) prohibit 

sources from emitting pollutants that 

cause a violation of the NAAQS, or (3) 

prohibit source operators from 

‘‘improperly operating or maintaining’’ 

their facilities. 

Commenters contended that these 

general-duty provisions are 

requirements that—either alone or in 

combination with other requirements— 

have the effect of limiting emissions on 

a continuous basis. In other words, the 

commenter asserted that these generalduty provisions impose limits on 

emissions during SSM events, when the 

otherwise applicable controls no longer 

apply. According to these commenters, 

SSM exemptions that excuse 

noncompliance with typical controls do 

not interrupt the continuous application 

of an ‘‘emission limitation,’’ because 

these general-duty provisions elsewhere 

in the SIP or in a separate permit are 

part of the emission limitation and 

apply even during SSM events. 

Some commenters further argued that 

some SSM exemptions themselves 

demonstrate that sources remain subject 

to general-duty provisions during SSM 

events. These SSM exemptions require 

sources seeking to qualify for the 

exemption to demonstrate that, inter 

alia, they were at the time complying 

with certain general duties. 

Accordingly, these commenters 

contended that the SSM exemption 

itself demonstrates that sources remain 

subject to requirements that limit their 

emissions during SSM events, even 

when the source is excused from 

complying with other components of 

the overarching emission limitation. 

Finally, as evidence that these 

general-duty clauses must be 

permissible under the CAA, some 

commenters pointed to similar federal 

requirements established by the EPA 

under the NSPS and NESHAP 

programs.224 These commenters argued 

that the D.C. Circuit’s decision in Sierra 

Club v. Johnson 225 was limited to 

circumstances unique to section 112 

and does not support a per se 

prohibition on general-duty clauses 

operating as ‘‘emission limitations.’’ 

Response: The EPA disagrees with 

these comments. As described 

elsewhere in this response to comments, 

all ‘‘emission limitations’’ must limit 

emissions of air pollutants on a 

continuous basis.226 The specific 

requirements of a SIP emission 

limitation must be discernible on the 

face of the provision, must meet the 

applicable substantive and stringency 

requirements of the CAA and must be 

legally and practically enforceable. The 

general-duty clauses identified by these 

commenters are not part of the putative 

emission limitations contained in these 

SIP provisions. To the contrary, these 

general-duty clauses are often located in 

different parts of the SIP and are often 

not cross-referenced or otherwise 

identified as part of the putative 

continuously applicable emission 

limitation. 

Furthermore, the fact that a SIP 

provision includes prerequisites to 

qualifying for an SSM exemption does 

not mean those prerequisites are 

themselves an ‘‘alternative emission 

limitation’’ applicable during SSM 

events. The text and context of the SIP 

provisions at issue in this SIP call action 

make clear that the conditions under 

which sources qualify for an SSM 

exemption are not themselves 

components of an overarching emission 

limitation—i.e., a requirement that 

limits emissions of air pollutants from 

the affected source on a continuous 

basis. Rather, these provisions merely 

identify the circumstances when 

sources are exempt from emission 

limitations. 

Reviewing an example of the SIP 

provisions cited by commenters is 

illustrative of this point. For example, 

several commenters pointed to 

provisions in Alabama’s SIP that excuse 

a source from complying with an 

otherwise applicable emission 

limitation only when the permittee 

‘‘took all reasonable steps to minimize 

emissions’’ and the ‘‘permitted facility 

was at the time being properly 

operated.’’ According to commenters, 

the general duties in this provision—to 

take reasonable steps to minimize 

emissions, and to properly operate the 

facility—ensure that even during SSM 

events, the permittee remains subject to 

requirements limiting emissions. 

However, a review of the provisions 

themselves in context—not selectively 

quoted—reveals that these general-duty 

provisions were included in the SIP not 

as components of an emission limitation 

but rather as components of an 

exception to that emission limitation. In 

order to qualify, the SIP requires the 

permittee to have taken ‘‘all reasonable 

steps to minimize levels of emissions 

that exceeded the emission 

standard’’ 227—an acknowledgement 

that the emissions to be ‘‘minimize[d]’’ 

are those that ‘‘exceed[]’’ (i.e., go 

beyond) the required limits of ‘‘the 

emission standard.’’ In case there were 

any doubt that the general-duty 

provisions identified are elements of an 

exemption from an emission limitation, 

rather than components of the emission 

limitation itself, the provisions apply 

during what the Alabama SIP calls 

‘‘[e]xceedances of emission 

limitations’’ 228 and are found within a 

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33904 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

229 Id. at 335–3–14–.03(h) (emphasis added). 

230See CAA section 302(k) (defining ‘‘emission 

limitation’’ and ‘‘emission standard’’). 

231See Sierra Club, 551 F.3d at 1026 (discussing 

the EPA’s prior determinations that ‘‘compliance 

with the general duty on its own was insufficient 

to prevent the SSM exemption from becoming a 

‘blanket’ exemption’’). 

232See, e.g., Sierra Club v. Johnson, 551 F.3d at 

1027–28 (so holding with respect to section 112). 

233For example, the EPA has concerns the some 

of these general-duty provisions, if at any point 

relied upon as the sole requirement purportedly 

limiting emissions, could undermine the ability to 

ensure compliance with SIP emission limitations 

relied on to achieve the NAAQS and other relevant 

CAA requirements at all times. See section 

110(a)(2)(A), (C); US Magnesium, LLC v. EPA, 690 

F.3d 1157, 1161–62 (10th Cir. 2012). 

broader section addressing ‘‘Exceptions 

to violations of emission 

limitations.’’ 229 By exempting sources 

from compliance with ‘‘the emission 

standard,’’ these exemptions render the 

SIP emission limitation noncontinuous, 

contrary to section 302(k).230

The consequences for failing to satisfy 

the preconditions for an exemption 

further bolster the conclusion that these 

preconditions are not themselves part of 

an emission limitation. Failure to meet 

the ‘‘general duty’’ preconditions for an 

SSM exemption means that the source 

remains subject to the otherwise 

applicable emission limitation during 

the SSM event and is thus liable for 

violating the emission limitation. If 

those general duties were independent 

parts of an emission limitation (rather 

than merely preconditions for an 

exemption), then one would expect that 

periods of time could exist when the 

source was liable for violating those 

general duties rather than the default 

emission limitation. 

The general-duty provisions that 

apply as part of the SSM exemption are 

not alternative emission limitations; 

they merely define an unlawful 

exemption to an emission limitation. 

States have discretion to fix this issue in 

a number of ways, including by 

removing the exceptions entirely, by 

replacing these exceptions with 

alternative emission limitations 

including specific control technologies 

or work practices that do ensure 

continuous limits on emissions or by 

reformulating the entire emission 

limitation. 

In addition to the EPA’s fundamental 

disagreement with commenters that 

these general-duty provisions are 

actually components of emission 

limitations, the EPA has additional 

concerns about whether many of these 

provisions could operate as stand-alone 

emission limitations even if they were 

properly identified as portions of the 

overall emissions limitations in the 

SIP.231 Furthermore, some of these 

general-duty provisions do not meet the 

level of stringency required to be an 

‘‘emission limitation’’ compliant with 

specific substantive provisions of the 

CAA applicable to SIP provisions.232

Accordingly, while states are free to 

include general-duty provisions in their 

SIPs as separate additional 

requirements, for example, to ensure 

that owners and operators act consistent 

with reasonable standards of care, the 

EPA does not recommend using these 

background standards to bridge 

unlawful interruptions in an emission 

limitation.233

The NSPS and NESHAP emission 

standards and limitations that the EPA 

has issued since Sierra Club 

demonstrate the distinct roles played by 

emission limitations and general-duty 

provisions. The emission limitations 

themselves are clear and legally and 

functionally enforceable, and they are 

composed of obviously integrated 

requirements that limit emissions on a 

continuous basis during all modes of 

source operation. Crucially, the generalduty provisions in these post-Sierra 

Club regulations merely supplement the 

integrated emission limitation; they do 

not supplant the emission limitation, 

which independently requires 

continuous limits on emissions. As 

discussed elsewhere in this document, 

the fact that the EPA is in the process 

of updating its own regulations to 

comply with CAA requirements does 

not alter the legal requirements 

applicable to SIPs. 

n. Comments that EPA’s action on the 

petition is a ‘‘change of policy.’’ 

Comment: A number of commenters 

claimed that the EPA’s action on the 

Petition is illegitimate because it is 

based upon a ‘‘change of policy.’’ Some 

commenters claimed that the EPA’s 

reliance on the definition of ‘‘emission 

limitation’’ in section 302(k) and the 

requirements for SIP provisions in 

section 110(a)(2) as barring automatic 

exemptions are ‘‘new.’’ These 

commenters claimed that the EPA has 

historically relied on the fact that 

NAAQS are ambient-standard-based and 

that the EPA has relied also on the fact 

that SSM exemptions had potential 

adverse air quality impacts as the basis 

for interpreting the CAA to preclude 

exemptions. The commenters argued 

that this basis for the SSM Policy is 

evidenced by the fact that EPA itself 

historically included SSM exemptions 

in NSPS and NESHAP rules, which 

establish emission limitations that 

should be governed by section 302(k) as 

well. 

Other commenters claimed that the 

EPA is changing its SSM Policy by 

seeking to revoke ‘‘enforcement 

discretion’’ exercised on the part of 

states, which the EPA specifically 

recognized as an acceptable approach in 

the 1983 SSM Guidance. A commenter 

asserted that ‘‘fairness principles’’ mean 

that the EPA cannot require a state to 

modify its SIP without substantial 

justification. The commenter further 

contended that the EPA’s claim that it 

has a longstanding interpretation of the 

CAA that automatic exemptions are not 

allowed in SIP provisions is false; 

otherwise, the commenter argued, the 

EPA would not have approved some of 

the provisions at issue in the SIP call 

long after 1982. As evidence for this 

argument, the commenter pointed to the 

West Virginia regulations that provide 

an automatic exemption. 

Finally, other commenters argued that 

the EPA’s changed interpretation of the 

CAA requires an acknowledgement that 

the SSM Policy is being changed and a 

rational explanation for such change. 

These commenters noted that the EPA 

previously argued in a brief for the type 

of exemption provisions that it is now 

claiming are deficient, citing Sierra Club 

v. Johnson, No. 02–1135 (D.C. Cir. 

March 14, 2008). The commenters 

claimed that the EPA has provided no 

rational basis for its change in 

interpretation of the CAA concerning 

exemptions for emissions during SSM 

events. 

Response: The EPA’s longstanding 

position, at least since issuance of the 

1982 SSM Guidance, is that SIP 

provisions providing an exemption from 

emission limitations for emissions 

during SSM events are prohibited by the 

CAA. The EPA’s guidance documents 

issued in 1982 and 1983 expressly 

recognized that in place of exemptions, 

states should exercise enforcement 

discretion in determining whether to 

pursue a violation of an emission 

limitation. In the 1983 SSM Guidance, 

the EPA made recommendations for 

states that elected to adopt specific SIP 

provisions affecting their own exercise 

of enforcement discretion, so long as 

those provisions do not apply to 

enforcement discretion of the EPA or 

other parties under the citizen suit 

provision of the CAA. More than 15 

years ago, in the 1999 SSM Guidance, 

the EPA reiterated its longstanding 

position that it is inappropriate for SIPs 

to exempt SSM emissions from 

compliance with emission limitations 

and repeated that instead of 

incorporating exemptions, enforcement 

discretion could be an appropriate tool. 

In addition, EPA clarified at that time 

that a narrowly tailored affirmative 

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234See 1999 SSM Guidance at 2, footnote 1. The 

EPA included section 302(k) among the statutory 

provisions that formed the basis for its 

interpretations of the CAA in that document. 

235Sierra Club, 551 F.3d 1019 (D.C. Cir. 2008). 

236The EPA emphasized this important point in 

the SNPR. See 79 FR 55919 at 55931. 

defense might also be an appropriate 

tool for addressing excess emissions in 

a SIP provision. However, in response to 

recent court decisions, and as discussed 

in detail in section IV of this document, 

the EPA no longer interprets the CAA to 

permit affirmative defense provisions in 

SIPs. 

Although the EPA did not expressly 

rely on the definition of ‘‘emission 

limitation’’ in section 302(k) as the basis 

for its SSM Policy in each of these 

guidance documents, it did rely on the 

purpose of the NAAQS program and the 

underlying statutory provisions 

(including section 110) governing that 

program. In the 1999 SSM Guidance, 

however, the EPA indicated that the 

definition of emission limitation in 

section 302(k) was part of the basis for 

its position concerning SIP 

provisions.234 After the EPA issued the 

1999 SSM Guidance, the D.C. Circuit 

issued a decision holding that the 

definition of emission limitation in 

section 302(k) does not allow for 

periods when sources are not subject to 

emissions standards.235 While the 

court’s decision concerned the section 

112 program addressing hazardous air 

pollutants, the EPA believes that the 

court’s ruling concerning section 302(k) 

applies equally in the context of SIP 

provisions because the definition of 

emission limitation also applies to SIP 

requirements. That court’s decision is 

consistent with and provides support 

for the EPA’s longstanding position in 

the SSM Policy that exemptions from 

compliance with SIP emission 

limitations are not appropriate under 

the CAA. 

Commenters claimed that by 

interpreting the CAA to prohibit 

exemptions for emissions during SSM 

events the EPA is revoking 

‘‘enforcement discretion’’ exercised by 

the state. This is not true. As part of 

state programs governing enforcement, 

states can include regulatory provisions 

or may adopt policies setting forth 

criteria for how they plan to exercise 

their own enforcement authority. Under 

section 110(a)(2), states must have 

adequate authority to enforce provisions 

adopted into the SIP, but states can 

establish criteria for how they plan to 

exercise that authority. Such 

enforcement discretion provisions 

cannot, however, impinge upon the 

enforcement authority of the EPA or of 

others pursuant to the citizen suit 

provision of the CAA. The EPA notes 

that the requirement for adequate 

enforcement authority to enforce CAA 

requirements is likewise a bar to 

automatic exemptions from compliance 

during SSM events. 

Commenters confused the EPA’s 

evolution in describing the basis for its 

longstanding SSM Policy as a change in 

the SSM Policy itself. The EPA’s 

interpretation of the CAA in the SSM 

Policy has not changed with respect to 

exemptions for emissions during SSM 

events. The EPA’s discussion of the 

basis for its longstanding interpretation 

has evolved and become more robust 

over time as the EPA has responded to 

comments in rulemakings and in 

response to court decisions. In support 

of its interpretation of the CAA that 

exemptions for periods of SSM are not 

acceptable in SIPs, the EPA has long 

relied on its view that NAAQS are 

health-based standards and that 

exemptions undermine the ability of 

SIPs to attain and maintain the NAAQS, 

to protect PSD increments, to improve 

visibility and to meet other CAA 

requirements. By contrast, the EPA 

historically took the position that SSM 

exemptions were acceptable for certain 

technology-based standards, such as 

NSPS and NESHAP standards, and 

argued that position in the Sierra Club 

case cited by commenters. However, in 

that case, the court explicitly ruled 

against the EPA’s interpretation, holding 

that exemptions for emissions during 

SSM events are precluded by the 

definition of ‘‘emission limitation’’ in 

CAA section 302(k). The Sierra Club 

court’s rationale thus provided 

additional support for the EPA’s 

longstanding position with respect to 

SSM exemptions in SIP provisions, and 

in more recent actions the EPA has 

relied on the reasoning from the court’s 

decision as further support for its 

current SSM Policy. Thus, even if the 

EPA were proceeding under a ‘‘change 

of policy’’ here as the commenters 

claimed, the EPA has adequately 

explained the basis for its current SSM 

Policy, including the basis for any 

actual ‘‘change’’ in that guidance (e.g., 

the actual change in the SSM Policy 

with respect to affirmative defense 

provisions in SIPs). Courts have upheld 

an agency’s authority to revise its 

interpretation of a statute, so long as 

that change of interpretation is 

explained.236

o. Comments that the EPA’s proposed 

action on the petition is based on a 

‘‘changed interpretation’’ of the 

definition of ‘‘emission limitation.’’ 

Comment: Commenters claimed that 

the EPA’s action on the Petition is based 

on a changed interpretation of the term 

‘‘emission limitation’’ and that the 

Agency cannot apply that changed 

interpretation ‘‘retroactively.’’ One 

commenter cited several cases for the 

proposition that retroactivity is 

disfavored and that the EPA is applying 

this new interpretation retroactively to 

existing SIP provisions. The commenter 

claimed that the EPA approved the 

existing SIP provisions with full 

knowledge of what those provisions 

were and ‘‘consistent with the 

provisions EPA itself adopted and 

courts required.’’ The commenter 

characterized the SIP provisions for 

which the EPA is issuing a SIP call as 

‘‘enforcement discretion’’ provisions 

and ‘‘affirmative defense’’ provisions for 

startup and shutdown. The commenter 

contended that the EPA does not have 

authority to issue a SIP call on the 

premise that the CAA is less flexible 

than the Agency previously thought. 

The commenter concluded that ‘‘[t]he 

factors of repose, reasonable reliance, 

and settled expectations favor not 

imposing EPA’s new interpretations.’’ 

Response: The EPA disagrees that this 

SIP call action has ‘‘retroactive’’ effect. 

As recognized by the commenter, this 

SIP call action does not automatically 

change the terms of the existing SIP or 

of any existing SIP provision, nor does 

it mean that affected sources could be 

held liable in an enforcement case for 

past emissions that occurred when the 

deficient SIP provisions still applied. 

Rather, the EPA is exercising its clear 

statutory authority to call for the 

affected states to revise specific 

deficient SIP provisions so that the SIP 

provisions will comply with the 

requirements of the CAA prospectively 

and so that affected sources will be 

required to comply with the revised SIP 

provisions prospectively. 

To the extent that a SIP provision 

complied with previous EPA 

interpretations of the CAA that the 

Agency has since determined are 

flawed, or to the extent that the EPA 

erroneously approved a SIP provision 

that was inconsistent with the terms of 

the CAA, the EPA disagrees that it is 

precluded from requiring the state to 

modify its SIP now so that it is 

consistent with the Act. In fact, that is 

precisely the type of situation that the 

SIP call provision of the CAA is 

designed to address. Specifically, 

section 110(k)(5) begins, ‘‘[w]henever’’ 

the EPA determines that an applicable 

implementation plan is inadequate to 

attain or maintain the NAAQS, to 

mitigate adequately interstate pollutant 

transport, or ‘‘to otherwise comply with 

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237 486 F.2d at 399 n.91. 

238 Marathon Oil Co. v. Environmental Protection 

Agency, 564 F.2d 1253 (9th Cir. 1977). 239 551 F.3d 1019 (D.C. Cir. 2008). 

240See Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 

1997) (SIP call remanded and vacated because, inter 

alia, the EPA had issued a SIP call that required 

states to adopt a particular control measure for 

mobile sources). 

any requirement’’ of the Act, the EPA 

must call for the SIP to be revised. The 

commenter does not question that 

sections 110(a)(2) and 302(k) are 

requirements of the Act. Thus, the EPA 

has authority under section 110(k)(5) to 

call on states to revise their SIP 

provisions to be consistent with those 

requirements. 

The EPA disagrees that the doctrines 

of ‘‘repose,’’ ‘‘reasonable reliance’’ and 

‘‘settled expectations’’ preclude such an 

action. The CAA is clear that 

‘‘whenever’’ the EPA determines that a 

SIP provision is inconsistent with the 

statute, ‘‘the Administrator shall’’ notify 

the state of the inadequacies and 

establish a schedule for correction. This 

language does not provide the Agency 

with discretion to consider the factors 

cited by the commenter in deciding 

whether to call for a SIP revision once 

it is determined to be flawed. Here, the 

EPA has determined that the SIP 

provisions at issue are flawed and thus 

the Agency was required to notify the 

states to correct the inadequacies. 

p. Comments that the EPA should not 

encourage states to rely on enforcement 

discretion because this will inevitably 

lead to states’ creating emission 

limitations that some sources cannot 

meet. 

Comment: Commenters claimed that 

it is not appropriate for the EPA to 

encourage states to exercise enforcement 

discretion rather than to encourage them 

either to define periods when numerical 

emission limitations do not apply or to 

develop alternative emission limitations 

or other control measures. The 

commenters contended that inclusion of 

an enforcement discretion provision in 

a SIP is superfluous. The commenter 

cited to Portland Cement, where the 

D.C. Circuit court stated that ‘‘an 

excessively broad theory of enforcement 

discretion might endanger securing 

compliance with promulgated 

standards.’’ 237 The commenter also 

cited the Marathon Oil case in the Ninth 

Circuit in which the court rejected an 

approach that relied heavily on 

enforcement discretion. The commenter 

then asserted that sources are liable for 

violations and that ‘‘[s]ources should 

not be required to litigate remedy for 

violations they cannot avoid.’’ 238 The 

commenter concluded that it is 

‘‘unreasonable for EPA to subject itself 

to claims that it must exercise its federal 

enforcement authority in the event a 

state refuses to enforce unachievable 

standards, or for states to put source 

owners and operators in jeopardy of 

criminal prosecution for starting up a 

source with knowledge that a numerical 

emission limitation might be exceeded. 

In summary, the commenter appeared to 

argue that the EPA should require states 

to establish alternative numerical 

emission limitations or other control 

requirements during SSM events, rather 

than merely eliminating SSM 

exemptions and relying on enforcement 

discretion to address SSM emissions. 

Response: The EPA disagrees with the 

commenter’s suggestion that the EPA 

should discourage states from relying on 

enforcement discretion. Enforcement 

discretion is a valid state prerogative, 

long recognized by courts. However, the 

EPA agrees with the commenter that 

states should not adopt overly broad 

enforcement discretion provisions for 

inclusion in their SIPs. Section 110(a)(2) 

requires states to have adequate 

enforcement authority, and overly broad 

enforcement discretion provisions 

would run afoul of this requirement if 

they have the effect of precluding 

adequate state authority to enforce SIP 

requirements. The EPA also agrees that 

states may elect to include alternative 

emission limitations, whether expressed 

numerically or otherwise, for certain 

periods of normal operations, including 

startup and shutdown. 

It is unclear precisely what the 

commenters are advocating when they 

suggest that sources should not be 

subject to litigating a remedy for 

violations they cannot avoid. The likely 

interpretation is that the commenters 

believe that excess emissions during 

unavoidable events should be 

automatically exempted (i.e., not 

considered a violation). This approach 

was rejected by the court in Sierra Club 

v. Johnson, because it was not 

consistent with the definition of 

emission limitation in section 302(k).239

As previously explained in the February 

2013 proposal and in this document, the 

EPA believes that definition, and thus 

the court’s holding in Sierra Club, is 

equally relevant for the SIP program. 

With respect to a commenter’s 

concerns about criminal enforcement, 

the EPA disagrees that sources will be 

unable to start operations because they 

will automatically be subject to criminal 

prosecution if an emission limitation is 

exceeded during a malfunction. Under 

CAA section 113(c), criminal 

enforcement for violation of a SIP can 

occur when a person knowingly violates 

a requirement or prohibition of an 

implementation plan ‘‘during any 

period of federally assumed 

enforcement or more than 30 days after 

having been notified’’ under the 

provisions governing notification that 

the person is violating that specific 

requirement of the SIP. The EPA is 

unaware of any jurisdictions where 

federally assumed enforcement is in 

force, and the EPA does not anticipate 

that this situation would arise often. 

Thus, in almost every case, criminal 

enforcement would not occur in the 

absence of a pending notification of a 

civil enforcement case and could then 

apply only for repeated violation of the 

activity at issue in that civil action. 

Moreover, the concern raised by the 

commenter is one that would exist if 

there is any requirement that applies 

during a period of malfunction beyond 

the owner’s control. The commenter’s 

preferred way to address this concern 

would be to exempt these periods from 

compliance with any requirements, an 

approach rejected by the Sierra Club 

court as inconsistent with the definition 

of ‘‘emission limitation’’ and an 

approach that the EPA’s longstanding 

SSM Policy has explained is 

inconsistent with the purpose of the 

NAAQS program, which is to ensure 

public health is protected through 

attainment and maintenance of the 

NAAQS, protection of PSD increments, 

improvement of visibility and 

compliance with other requirements of 

the CAA. 

Finally, to the extent that the 

commenter was advocating that the EPA 

should require states to develop SIP 

provisions that impose alternative 

emission limitations during certain 

modes of source operation such as 

startup and shutdown to replace SSM 

exemptions, the EPA notes that to 

require states to do so would not be 

consistent with the principles of 

cooperative federalism and could be 

misconstrued as the Agency’s imposing 

a specific control requirement in 

contravention of the Virginia 

decision.240 As the commenter 

elsewhere itself argued, states have 

broad discretion in how to develop SIP 

provisions to meet the objectives of the 

CAA, so long as those provisions also 

meet the legal requirements of the CAA. 

To the extent that a state would prefer 

to have emission limitations that apply 

continuously, without higher numerical 

levels or specific technological controls 

or work practice standards applicable 

during modes of operation such as 

startup and shutdown, that is the 

prerogative of the state, so long as the 

revised SIP provision otherwise meets 

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241See ‘‘Credible Evidence Revisions; Final rule,’’ 

62 FR 8314 (February 24, 1997). 

242For example, the degree to which data from 

continuous opacity monitoring systems (COMS) is 

evidence of violations of SIP opacity or PM mass 

emission limitations is a factual question that must 

be resolved on the facts and circumstances in the 

context of an enforcement action. See, e.g., Sierra 

Club v. Pub. Ser v. Co. of Colorado, Inc., 894 

F.Supp. 1455 (D. Colo. 1995) (allowing use of 

COMS data to prove opacity limit violations). 243 Id., 62 FR 8314, 8323–24. 

CAA requirements. If a state determines 

that it is reasonable to require a source 

to meet a specific emission limitation on 

a continuous basis and also decides to 

rely on its own enforcement discretion 

to determine whether a violation of that 

emission limit should be subject to 

enforcement, then the EPA believes that 

to do so is within the discretion of the 

state. 

q. Comments that the EPA’s action on 

the Petition is inconsistent with the 

Credible Evidence Rule. 

Comment: A number of commenters 

raised concerns based upon how the 

EPA’s statements in the February 2013 

proposal relate to the Credible Evidence 

Rule issued in 1997.241 For example, 

one commenter argued that throughout 

the February 2013 proposal, when the 

EPA stated that excess emissions during 

SSM events should be treated as 

‘‘violations’’ of the applicable SIP 

emission limitations, the Agency was 

contradicting the Credible Evidence 

Rule and other provisions of law. The 

commenter emphasized that the 

determination of whether excess 

emissions during an SSM event are in 

fact a ‘‘violation’’ of the applicable SIP 

provisions must be made using the 

appropriate reference test method. In 

addition, the commenter asserted that 

whether any other form of information 

may be used as ‘‘credible evidence’’ of 

a violation must be evaluated by the 

trier of fact in a specific enforcement 

action. Another commenter raised a 

different argument based on the 

Credible Evidence Rule, claiming that 

the EPA’s statements in the preamble to 

that rulemaking contradict the EPA’s 

statements in the February 2013 

proposal and support the need for 

exemptions for emissions during SSM 

events. The implication of the 

commenter is that any such EPA 

statements in connection with the 

Credible Evidence Rule would negate 

the Agency’s interpretation of the 

statutory requirements for SIP 

provisions as interpreted in the SSM 

Policy since at least 1982, the decision 

of the court in the Sierra Club case or 

any other actions such as the recent 

issuance of EPA regulations with no 

such SSM exemptions. 

Response: The EPA agrees, in part, 

with the commenters who expressed 

concern that the Agency’s statements in 

the February 2013 proposal could be 

misconstrued as a definitive 

determination that the excess emissions 

during any and all SSM events are 

automatically a violation of the 

applicable emission limitation, without 

factual proof of that violation, and 

without the existence and scope of that 

violation being decided by the 

appropriate trier of fact. The EPA agrees 

that the alleged violation of the 

applicable SIP emission limitation, if 

not conceded by the source, must be 

established by the party bearing the 

burden of proof in a legal proceeding. 

The degree to which evidence of an 

alleged violation may derive from a 

specific reference method or any other 

credible evidence must be determined 

based upon the facts and circumstances 

of the exceedance of the emission 

limitations at issue.242 This is a basic 

principle of enforcement actions under 

the CAA, but the EPA wishes to make 

this point clearly in this final action to 

avoid any unintended confusion 

between the legal standard creating the 

enforceable obligation and the 

evidentiary standard for proving a 

violation of that obligation. 

The EPA’s general statements in the 

February 2013 proposal, the SNPR and 

this final action about treatment of SSM 

emissions as a violation pertain to 

another basic principle, i.e., that SIP 

provisions cannot treat emissions 

during SSM events as exempt, because 

this is inconsistent with CAA 

requirements. Thus, when the EPA 

explains that these emissions must be 

treated as ‘‘violations’’ in SIP 

provisions, this is meant in the sense 

that states with SSM exemptions need 

to remove them, replace them with 

alternative emission limitations that 

apply during startup and shutdown or 

eliminate them by revising the emission 

limitation as a whole. Once 

impermissible SSM exemptions are 

removed from the SIP, then any excess 

emissions during such events may be 

the subject of an enforcement action, in 

which the parties may use any 

appropriate evidence to prove or 

disprove the existence and scope of the 

alleged violation and the appropriate 

remedy for an established violation. To 

be clear, the fact that these emissions 

are currently exempt through 

inappropriate SIP provisions is a 

deficiency that the EPA is addressing in 

this action. Thus, the EPA disagrees 

with the commenters’ suggestion that 

these emissions are never to be treated 

as violations simply because a deficient 

SIP provision currently includes an 

SSM exemption. Once the SIP 

provisions are corrected, the excess 

emissions may be addressed through the 

legal structure for establishing an 

enforceable violation, which then may 

be proven using appropriate evidence, 

including test method evidence or other 

credible evidence. This means that 

excess emissions that occur during an 

SSM event will be treated for 

enforcement purposes in exactly the 

same manner as excess emissions that 

occur outside of SSM events. The EPA 

acknowledges that the limitation that 

applies during a startup or shutdown 

event might ultimately be different 

(whether higher or lower) than the 

limitation that applies at other times, if 

the state elects to replace the SSM 

exemption with an appropriate 

alternative emission limitation in 

response to this SIP call action. 

The EPA also disagrees with 

commenters who claimed that 

statements by the Agency in the 

Credible Evidence Rule final rule 

preamble support the inclusion of 

exemptions for SSM events in SIP 

provisions. The commenter is correct 

that at that time, the EPA held the view 

that emission limitations in its own 

NSPS could be considered 

‘‘continuous,’’ notwithstanding the fact 

that they contained ‘‘specifically 

excused periods of noncompliance’’ 

(i.e., exemptions from emission 

limitations during SSM events).243

Similarly, at that time the EPA relied on 

a number of reported court decisions 

discussed in the preamble for the 

Credible Evidence Rule for determining 

at that time that NSPS could contain 

such exemptions in order to make the 

emission limitations ‘‘reasonable.’’ 

However, after the court’s decision in 

the Sierra Club case interpreting the 

definition of emission limitation in 

section 302(k), these EPA statements in 

the preamble for the Credible Evidence 

Rule are no longer correct and thus do 

not apply to the EPA’s action in this 

document. 

First, the EPA notes that these prior 

statements related to the Credible 

Evidence Rule specifically addressed 

not SIP provisions but rather the 

provisions of the Agency’s own 

technologically based NSPS. The 

statements in the document make no 

reference to SIP provisions, which is 

unsurprising given that EPA’s SSM 

Policy at the time indicated that no such 

SSM exemptions are appropriate in SIP 

provisions. Second, the EPA’s 

justification for exemptions from 

emission limitations during SSM events 

in NSPS was made prior to the 2008 

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244See, e.g., 40 CFR 60.42Da, where paragraph 

(e)(1) applies a numerical PM emission limitation 

at all times except during periods of startup and 

shutdown, and paragraph (e)(2) applies work 

practice standards during periods of startup and 

shutdown. 

245See, e.g., 40 CFR 60.42Da(b). The EPA’s 

revised NSPS for this category imposes an opacity 

limit of 20 percent at all times, except for one 6- 

minute period per hour when the opacity may rise 

to 27 percent. Notably, as an option, sources may 

elect to install PM CEMS and be subject only to the 

revised particulate matter emission limitation. 

246See 40 CFR 51.100(z) (defining the term 

‘‘emission limitation’’ as limits on ‘‘the quantity, 

rate, or concentration of emissions of air pollutants 

on a continuous basis, including any requirements 

which limit the level of opacity’’). 

decision of the court in the Sierra Club 

case. The EPA’s interpretation of the 

statute and the case law to justify 

exemptions for emissions during SSM 

events in that 1997 document is no 

longer correct. Finally, the EPA in its 

own new NESHAP and NSPS 

regulations is now providing no 

exemptions for emissions during SSM 

events and is imposing specific 

numerical limitations or other control 

requirements on sources that apply to 

affected sources at all times, including 

during SSM events.244 Thus, the 

statements in the 1997 Credible 

Evidence Rule preamble relied upon by 

commenters do not render the EPA’s 

interpretation of the CAA with respect 

to SSM exemptions in SIP provisions in 

this action incorrect. 

For clarity, the EPA emphasizes that 

it is in no way reopening, revising or 

otherwise amending the Credible 

Evidence Rule in this action. The EPA 

is merely responding to commenters 

who characterized the relationship 

between Agency statements in that 

rulemaking action and this SIP call 

action. The EPA also emphasizes that no 

changes to the Credible Evidence Rule 

should be necessary as a result of this 

rulemaking. 

r. Comments that exemptions in 

opacity standards should be permissible 

because opacity is not a NAAQS 

pollutant. 

Comment: Many state and industry 

commenters argued that the EPA should 

interpret the CAA to allow SIP 

provisions that impose opacity emission 

limitations to contain exemptions for 

SSM events or for other modes of source 

operation. The reasons given by 

commenters ranged broadly, but they 

included assertions that opacity is not a 

criteria pollutant, that opacity 

limitations serve no purpose other than 

as a tool to monitor PM control device 

performance, that there is no reliable 

correlation between opacity and PM 

mass, that there are circumstances 

during which sources may not be 

capable of meeting the otherwise 

applicable SIP opacity standards and 

that opacity is not an ‘‘air pollutant.’’ 

Commenters also argued that because 

SIP opacity standards were originally 

established when the NAAQS applied to 

‘‘total suspended particles’’ (TSP), 

rather than the current PM10 and PM2.5,

this alone should be a reason to allow 

SSM exemptions now that the NAAQS 

have been revised and the indicator 

species changed. Some of the 

commenters acknowledged that their 

underlying concern is that requirements 

for COMS on certain sources have 

rendered it much easier to monitor 

exceedances of SIP opacity limits and to 

bring enforcement actions for alleged 

violations. 

Response: The EPA agrees with many 

of the points made by commenters but 

not with the conclusion that the 

commenters drew from these points, 

i.e., that exemptions for SSM events are 

appropriate in SIP provisions that 

impose opacity emission limitations. 

First, although the EPA agrees that 

opacity itself is not a criteria pollutant 

and that there is thus no NAAQS for 

opacity, this does not mean that SIP 

opacity limitations are not ‘‘emission 

limitations’’ subject to the requirements 

of section 110(a)(2)(A) and do not need 

to be continuous. As the commenters 

often conceded, opacity is a surrogate 

for PM emissions for which there are 

NAAQS, and opacity has served this 

purpose since the beginning of the SIP 

program in the 1970s. SIP provisions 

that impose opacity emission 

limitations often date back to the 

earliest phases of the SIP program. From 

the outset, such opacity limitations have 

provided an important regulatory tool 

for implementing the PM NAAQS and 

for limiting PM emissions from sources. 

To this day, states continue to use 

opacity limitations in SIP provisions 

and the EPA continues to use opacity 

limitations in its own NSPS and 

NESHAP regulations, as necessary, for 

specific source categories.245 EPA 

regulations applicable to SIPs explicitly 

define the term ‘‘emission limitation’’ to 

include opacity limits.246 It is also 

important to note that these SIP 

provisions impose opacity emission 

limitations that sources must meet 

independently; i.e., opacity limitations 

are independent ‘‘emission limitations’’ 

under section 110(a)(2)(A) that must, 

consistent with section 302(k), ‘‘limit[ ] 

the quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis.’’ These opacity 

emission limitations in SIP provisions 

are not stated conditionally as opacity 

limits that sources do not need to meet 

if they are otherwise in compliance with 

PM mass emission limitations or with 

any other CAA requirements. Thus, the 

fact that opacity is not itself a criteria 

pollutant is irrelevant. 

Second, although the EPA agrees that 

SIP opacity limitations also provide an 

important means of monitoring control 

device performance and thus indirectly 

provide a means to monitor compliance 

with PM emission limitations as well, 

this does not mean that opacity limits 

do not need to meet the statutory 

requirements for SIP emission 

limitations. Historically, opacity limits 

have been an important tool for 

implementation of the PM NAAQS, and 

in particular for the implementation and 

enforcement of PM mass limitations on 

sources to help attain and maintain the 

PM NAAQS. The EPA agrees that 

opacity is a useful tool to indicate 

overall operation and maintenance of a 

source and its emission control devices, 

such as electrostatic precipitators or 

baghouses. SIP opacity limitations 

provided this tool even before modern 

instruments that measure PM emissions 

on a direct, continuous basis existed. At 

a minimum, elevated opacity indicates 

potential problems with source design, 

operation or maintenance, or potential 

problems with incorrect operation of 

pollution control devices, especially at 

the elevated levels of many existing 

opacity standards. Well-run sources 

should be in compliance with typical 

SIP opacity limits. Opacity exceeding 

the applicable limitations can be 

indicative of problems that justify 

further investigation by sources and 

regulators, such as conducting a stack 

test to determine compliance with PM 

mass emission limitations. Not all 

sources have or will have PM CEMS, or 

have PM CEMS at all emission points, 

to monitor PM emissions directly, nor 

do PM CEMS necessarily obviate the 

need for opacity standards to regulate 

condensables, and thus there is a 

continued need for opacity emission 

limitations in SIPs. The continued need 

for SIP opacity limitations for this and 

other purposes contradicts the 

commenters’ arguments concerning the 

validity of SSM exemptions. 

Third, the EPA agrees that the precise 

correlation between opacity and PM 

mass emissions is not always known for 

a specific source under all operating 

conditions, unless there is parallel 

testing and measurement of the opacity 

and the PM emissions to determine the 

correlation at that particular source. 

Similarly, parametric monitoring can be 

used to establish such a correlation. 

Nevertheless, there is commonly a 

positive correlation between PM and 

opacity and thus elevated opacity is 

often indicative of additional PM 

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247See Sierra Club v. TVA, 430 F.3d 1337, 1340 

(11th Cir. 2005). 

248See 40 CFR 51.100(z). 

emissions from a source. Even in those 

instances where a precise correlation is 

not available, however, the use of 

opacity as a means to assure the 

reduction of PM emissions and to 

monitor source compliance remains a 

valid approach to regulation of PM from 

sources. In any event, the absence of a 

precise correlation between opacity and 

PM does not justify the complete 

exemptions from SIP opacity limitations 

during SSM events that the commenters 

advocate and instead suggests that it 

may be appropriate to replace such 

exemptions with valid and enforceable 

alternative numerical limitations or 

other control requirements as a 

component of the SIP opacity emission 

limitation that applies during startup 

and shutdown. Opacity emission 

limitations in SIPs must meet the 

statutory requirements for emission 

limitations. 

Fourth, the EPA agrees with 

commenters that for some sources some 

PM controls cannot operate, or operate 

at full effectiveness and ideal efficiency, 

during startup and shutdown. 

Accordingly, as the commenters 

implicitly recognized, the resulting 

increases in PM emissions can result in 

elevated opacity and thus exceedances 

of the applicable SIP opacity emission 

limitations. In those situations where it 

is true that no additional emissions 

controls are available or would function 

more effectively to reduce PM 

emissions, and hence to reduce opacity, 

it may be appropriate for states to 

consider imposing an alternative 

opacity emission limitation applicable 

during startup and shutdown. As 

discussed in section VII.B.2 of this 

document, the EPA provides 

recommendations to states concerning 

how to develop such alternative 

emission limitations. To the extent that 

sources believe that a SIP provision 

with a higher opacity level for startup 

and shutdown may be justified, they 

may seek these alternative limitations 

from the state and they can presumably 

advocate for opacity standards that are 

tailored to reflect the correlation 

between PM mass and opacity at a 

specific source. Significantly, however, 

even if it is appropriate to impose a 

somewhat higher opacity limitation for 

some sources during specifically 

defined modes of operation such as 

startup and shutdown, that does not 

justify the total exemptions from SIP 

opacity emission limitations during 

SSM events that the commenters 

advocated. To provide total exemptions 

from SIP opacity emission limitations 

during SSM events does not provide any 

incentive for sources to be better 

designed, operated, maintained and 

controlled to reduce emissions, nor does 

it comply with the most basic 

requirement that SIP emission 

limitations be continuous in accordance 

with section 302(k). As explained in 

section X.B of this document, the SIP 

revisions in response to this SIP call 

action will need to be consistent with 

the requirements of sections 110(k)(3), 

110(l) and 193 as well as any other 

applicable requirements. 

Fifth, the EPA notes that few 

commenters seriously argued that SIP 

provisions for opacity do not fit within 

the plain language of section 

110(a)(2)(A) or the definition of 

‘‘emission limitation’’ in section 302(k) 

or in EPA regulations applicable to SIP 

provisions. Section 110(a)(2)(A) requires 

SIPs to contain such enforceable 

emission limitations ‘‘as may be 

necessary and appropriate to meet the 

applicable requirements of’’ the CAA. 

Opacity limitations in SIP provisions 

are necessary and appropriate for a 

variety of reasons already described, 

including as a means to reduce PM 

emissions, as a means to monitor source 

compliance and to provide for more 

effective enforcement. Opacity 

limitations in SIP provisions also easily 

fit within the concept of a limit on the 

‘‘quantity, rate or concentration of air 

pollutants’’ that relates to the ‘‘operation 

or maintenance of a source to assure 

continuous emission reduction and any 

design, equipment, work practice or 

operational standard’’ under the CAA, 

as provided in section 302(k). The term 

‘‘air pollutant’’ is defined broadly in 

section 302(g) to mean ‘‘any air 

pollution agent or combination of such 

agents, including any physical, 

chemical, biological, radioactive . . . 

substance or matter which is emitted 

into or otherwise enters the ambient 

air.’’ Even if opacity is not itself an air 

pollutant, it is clearly a means of 

monitoring and limiting emissions of 

PM from sources and is thus 

encompassed within the definition of 

‘‘emission limitation’’ in section 

302(k).247 Significantly, existing EPA 

regulations applicable to SIP provisions 

already explicitly define the term 

‘‘emission limitation’’ to include opacity 

limitations.248

Finally, the EPA does not agree with 

commenters who argued that because 

SIP opacity limitations were often 

originally imposed when the PM 

NAAQS was for TSP, it is legally 

acceptable to have exemptions for 

emissions during SSM events now that 

the PM NAAQS use PM10 and PM2.5 as 

the indicator species. On a factual level, 

it is obvious that SIP provisions for 

opacity limitations are expressed in 

terms of percentage ‘‘opacity’’ unrelated 

to the size of the particles. Opacity 

represents the degree to which 

emissions reduce the transmission of 

light and obscures the view of an object 

in the background. In general, the more 

particles which scatter or absorb light 

that passes through an emissions point, 

the more light will be blocked, thus 

increasing the opacity percentage of the 

emissions plume. The EPA agrees that 

variables such as the size, number and 

composition of the particles in the 

emissions can result in variations in the 

percentage of opacity. Notwithstanding 

the changes in the NAAQS, however, 

both states and the EPA have continued 

to rely on opacity limitations because 

they serve the same purposes for the 

current PM10 and PM2.5 NAAQS (and 

other purposes such as the regulation of 

HAPs under section 112) that they 

previously did for the TSP NAAQS. 

Indeed, as the PM NAAQS have been 

revised to provide better protection of 

public health, the need for such opacity 

limitations continues unless there is a 

better means to monitor source 

compliance, such as PM CEMS. As with 

other SIP emission limitations, the EPA 

interprets the CAA to preclude SSM 

exemptions in opacity standards. 

s. Comments that exemptions from 

SIP opacity limitations for excess 

emissions during SSM events should be 

allowed because such emissions are 

difficult to monitor or to control. 

Comment: Several commenters argued 

that the EPA’s proposal of a SIP call for 

SIP opacity emission limitations that 

include an SSM exemption is arbitrary 

and capricious because it is difficult or 

impossible to monitor or measure 

opacity during SSM events. According 

to commenters, there is no compliance 

methodology to determine whether 

opacity limitations are met during SSM 

events and this is the reason that the 

EPA’s own general provisions for NSPS 

and NESHAP exclude emissions during 

SSM events as ‘‘not representative’’ of 

source operation. In the absence of a 

specific methodology to demonstrate 

compliance, the commenters argued that 

expecting sources to comply with any 

opacity emission limitations during 

SSM events is arbitrary and capricious. 

The commenters asserted that in light of 

this, the EPA must interpret the CAA to 

allow exemptions for SSM events in SIP 

opacity provisions. 

A number of commenters also argued 

that because emission controls for PM 

do not function, or do not function as 

effectively or efficiently, during certain 

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33910 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

249The EPA notes that one commenter 

characterized SIP opacity limits as ‘‘archaic’’ and 

suggested that the Agency should issue a SIP call 

requiring their removal from SIPs entirely. Unless 

and until regulators and sources have a better 

means of monitoring compliance with PM emission 

limitations on a continuous basis, such as through 

installation of PM CEMS, the EPA believes that 

opacity limits will continue to be a necessary part 

of emission limitations. There will continue to be 

sources of emissions for which it will not be costeffective or technologically viable to require the 

installation of PM CEMS or for which opacity 

standards will be needed as a means of regulating 

condensables. 

modes of source operation, the EPA 

should interpret the CAA to permit 

exemptions for SSM events in opacity 

emission limitations. Many commenters 

explained that certain types of emission 

controls at certain types of sources only 

operate at specific temperatures or 

under specific conditions. For example, 

many commenters stated that existing 

pollution control devices on certain 

categories of stationary sources do not 

operate, or do not operate as effectively 

or efficiently, during startup and 

shutdown. Based upon this assertion, 

the commenters argued that the EPA 

should interpret the CAA to allow total 

exemptions from SIP opacity emission 

limitations during such periods. 

Commenters also characterized the 

EPA’s February 2013 proposal as 

‘‘particularly unreasonable’’ with 

respect to SSM exemptions in SIP 

opacity limitations, because those 

limitations should be allowed to 

exclude elevated opacity during periods 

when PM emissions controls devices are 

‘‘not expected to operate correctly.’’ 

According to commenters, treating the 

higher opacity during SSM events ‘‘as a 

violation simply because it is indicating 

something that is expected is 

ridiculous.’’ As an example, the 

commenters specifically mentioned 

occurrences such as when a source’s 

electrostatic precipitator (ESP) is not 

functioning or is not functioning 

properly as periods during which there 

should be an exemption from SIP 

opacity emission limitations. 

Response: The EPA agrees with some 

of the points made by commenters but 

does not agree with the conclusions that 

the commenters drew from these points, 

i.e., that alleged difficulties in 

monitoring, measuring or controlling 

opacity during some modes of source 

operation in general justify complete 

exemptions from opacity emission 

limitations during SSM events. 

First, the EPA does not agree with the 

argument that there is no ‘‘compliance 

methodology’’ available for purposes of 

verifying compliance with SIP opacity 

limitations. Since the earliest phases of 

the SIP program, Reference Method 9 

has been available as a means of 

verifying a source’s compliance with 

applicable SIP opacity emission 

limitations. Whatever concerns the 

commenters may have with this test 

method, it is a valid method and it 

continues to be used as a means of 

verifying source compliance with 

opacity limitations and a source of 

evidence for determining whether there 

are violations of such emission 

limitations.249 Sources routinely 

monitor and certify to their compliance 

with SIP opacity limitations based upon 

Method 9. In addition, COMS have been 

available, and in some cases are 

required, as another means of 

monitoring emissions and verifying 

compliance with opacity emission 

limitations. With respect to COMS, 

commenters expressed concerns that 

they are not always accurate, are not 

always properly calibrated or are not 

always the reference test method for SIP 

opacity emission limitations, and other 

similar arguments. In this rulemaking, 

the EPA is not addressing these 

allegations concerning COMS but 

merely noting that COMS are an 

available means of monitoring opacity 

from sources and in appropriate 

circumstances can provide data meeting 

the EPA’s criteria as credible evidence 

to be used to determine compliance 

with emission limitations. 

Second, the EPA does not agree that 

the fact that its regulations concerning 

performance tests in 40 CFR 63.7(e) for 

NESHAP and in 40 CFR 60.8(c) for 

NSPS exclude SSM emissions for 

purposes of evaluation of emissions 

under normal operating conditions 

provides a justification for SSM 

exemptions from opacity emission 

limitations in SIP provisions. The D.C. 

Circuit decision in Sierra Club has 

already indicated that such exemptions 

are not permissible in emission 

limitations and vacated the general 

provisions applicable to NESHAP. In 

the case of the exemption language in 40 

CFR 60.8(c) relevant to NSPS, the EPA 

acknowledges that it has not yet taken 

action to revise the language to 

eliminate that exemption. However, in 

promulgating new NSPS regulations 

subsequent to the Sierra Club decision, 

the EPA is including emission 

limitations for newly constructed, 

reconstructed and modified sources that 

apply continuously and including 

provisions expressly stating that the 

SSM exemptions in the General 

Provisions do not apply. The EPA notes 

that the commenter is also in error 

because the performance tests are 

intended to be a means of evaluating 

emissions from sources during periods 

that are representative of source 

operation. 

Third, the EPA does not agree with 

the premise that because certain forms 

or types of emission controls do not 

work, or do not work as effectively or 

efficiently, during certain modes of 

operation at some sources, it necessarily 

follows that sources should be totally 

exempt from emission limitations 

during such periods. The EPA interprets 

the CAA to require that SIP emission 

limitations be continuous. As explained 

in section VII.A of this document, 

emission limitations do not necessarily 

need to be expressed numerically, can 

have higher numerical levels during 

certain modes of operation, and may be 

composed of a combination of 

numerical limitations, specific 

technological control requirements and/ 

or work practice requirements during 

certain modes of operation, so long as 

these emission limitations meet 

applicable CAA stringency requirements 

and are legally and practically 

enforceable. If it is factually accurate 

that a given source category requires a 

higher opacity limit during periods such 

as startup and shutdown, then the state 

may elect to develop one consistent 

with other CAA requirements. The EPA 

has provided guidance to states with 

criteria to consider in revising their SIP 

provisions to replace exemptions with 

an appropriate alternative emission 

limitation for such purposes. The EPA 

emphasizes that even if it is the case 

that existing control measures cannot 

operate, or cannot operate as effectively 

or efficiently, during startup and 

shutdown at a particular source, this 

does not legally justify a complete 

exemption from SIP emission 

limitations and may merely indicate 

that additional emission controls or 

work practices are necessary when the 

existing control measures are 

insufficient to meet the applicable SIP 

emission limitation. The EPA is taking 

this approach with its own recent NSPS 

and NESHAP regulations, when 

appropriate, in order to ensure that its 

own emission limitations are consistent 

with CAA requirements. 

Finally, the EPA also disagrees with 

the logic of commenters that argued in 

favor of exemptions from SIP opacity 

limitations during periods when a 

source is most likely to violate them, 

e.g., when the source’s control devices 

are not functioning. Even if exemptions 

from SIP opacity emission limitations 

were legally permissible under the CAA, 

which they are not, it would be illogical 

to excuse compliance with the 

standards during the precise periods 

when opacity standards are most 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33911 

250See 1982 SSM Guidance at Attachment p. 2; 

1983 SSM Guidance at Attachment p. 3. The EPA 

notes that it also did not interpret the CAA to 

permit affirmative defense provisions for planned 

events under its prior 1999 SSM Guidance on the 

grounds that sources should be expected to operate 

in accordance with applicable SIP emission 

limitations during maintenance. This interpretation 

was upheld in Luminant Generation v. EPA, 714 

F.3d 841 (5th Cir. 2013). 

needed to monitor source compliance 

with SIP emission limitations and 

provide incentives to avoid and 

promptly correct malfunctions; i.e., it 

would be illogical to require no legal 

restriction on emissions when the 

sources are most likely to be emitting 

the most air pollutants. Inclusion of 

exemptions for exceedances of SIP 

opacity limitations during such periods 

would remove incentives to design, 

maintain and operate the source 

correctly, and to promptly correct 

malfunctions, in order to assure that it 

meets the applicable SIP emission 

limitations. By exempting excess 

emissions during such events, the 

provision would undermine the 

enforcement structure of the CAA in 

section 113 and section 304, through 

which the air agency, the EPA and 

citizens are authorized to assure that 

sources meet their obligations. The EPA 

emphasizes that while exemptions from 

SIP limitations are not permissible in 

SIP provisions, states may elect to 

impose appropriate alternative emission 

limitations. They may include 

alternative numerical limitations, 

control technologies or work practices 

that apply during modes of operation 

such as startup and shutdown, so long 

as all components of the SIP emission 

limitation meet all applicable CAA 

requirements. 

t. Comments that exemptions in SIP 

opacity limitations should be 

permissible for ‘‘maintenance,’’ ‘‘sootblowing’’ or other normal modes of 

source operation. 

Comment: A number of industry 

commenters argued that the EPA should 

interpret the CAA to allow exemptions 

from SIP opacity limitations for 

‘‘maintenance.’’ The commenters stated 

that during maintenance, sources must 

shut down operations and control 

devices while the source is cleaned or 

repaired. During such periods, the 

commenters explained, a ventilation 

system operated to protect workers at 

the source could result in monitored 

exceedances of a SIP opacity limitation. 

Commenters specifically argued that 

although COMS data may suggest 

violations of opacity standards during 

such periods, the fact that the source is 

not combusting fuel during maintenance 

should mean that the opacity emission 

limitation does not apply at such times. 

According to commenters, opacity 

limitations are only intended to reflect 

the performance of pollution control 

equipment while the source is operating 

and thus have no relevance during 

periods of maintenance. Other 

commenters made comparable 

arguments with respect to soot-blowing, 

asserting that the high opacity levels 

during this activity are ‘‘indicative of 

normal ESP operation, not poor 

performance.’’ In other words, the 

commenters argued that opacity 

limitations should contain complete 

exemptions for opacity emitted during 

soot-blowing on the theory that the 

elevated emissions during this mode of 

operation show that the control measure 

on a source is functioning properly. The 

commenters further argued that 

considering emissions during sootblowing for purposes of PM limitations 

is appropriate, but not for purposes of 

opacity limitations, because of the way 

in which regulators developed the 

respective emission limitations. 

Response: The EPA does not agree 

that exemptions from SIP opacity 

limitations are appropriate for any mode 

of source operation, whether during 

SSM events or during other normal, 

predictable modes of source operation. 

To the extent that there are legitimate 

technological reasons why sources are 

able to meet only a higher opacity 

limitation during certain modes of 

operation, it does not follow that this 

constraint justifies complete exemption 

from any standard or any alternative 

technological control or work practice 

in order to reduce opacity during such 

periods. Providing a complete 

exemption for opacity during these 

modes of source operation, and no 

specific alternative emission limitation 

during such periods, removes incentives 

for sources to be properly designed, 

maintained and operated to reduce 

emissions during such periods. 

With respect to maintenance, the EPA 

does not agree with commenters that 

total exemptions from opacity emission 

limitations during such activities are 

consistent with CAA requirements for 

SIP provisions. As the EPA has stated 

repeatedly in its interpretation of the 

CAA in the SSM Policy, maintenance 

activities are predictable and planned 

activities during which sources should 

be expected to comply with applicable 

emission limitations.250 The premise of 

the commenters advocating for such 

exemptions for all emissions during 

maintenance is evidently that nothing 

can be done to limit PM emissions and 

thus limit opacity during maintenance 

activities, and the EPA disagrees with 

that general premise. To the extent 

appropriate, however, states may elect 

to create alternative emission 

limitations applicable to opacity during 

maintenance periods, so long as they are 

consistent with CAA requirements. The 

EPA provides recommendations for 

alternative emission limitations in 

section VII.B.2 of this document. 

With respect to soot-blowing, the EPA 

likewise does not agree that total 

exemptions from opacity limitations 

during such periods are consistent with 

CAA requirements. As with 

maintenance in general, soot-blowing is 

an intentional, predictable event within 

the control of the source. The 

commenters’ implication is that nothing 

whatsoever could be done to limit 

opacity during such activities, and the 

EPA believes that this is both inaccurate 

and not a justification for sources’ being 

subject to no standards whatsoever 

during soot-blowing. In addition, the 

EPA disagrees with the commenters’ 

claim that exemptions from opacity 

emission limitations during sootblowing are legally permissible because 

this allegedly shows that the control 

devices for opacity and PM are in fact 

performing correctly. This argument 

incorrectly presupposes that the sole 

reason for SIP opacity emission 

limitations is as a means of better 

evaluating control measure 

performance. This is but one reason for 

SIP opacity limitations. Moreover, the 

EPA notes, excusing opacity during 

soot-blowing has the diametrically 

opposite effect of the actual purpose of 

the control devices and can result in 

much higher emissions as opposed to 

encouraging limiting these emission 

with other forms of controls. 

Finally, the EPA notes, the 

commenters’ argument that whether 

opacity limitations should apply during 

soot-blowing depends upon whether the 

emissions were or were not accounted 

for in the applicable PM emissions is 

also based upon an incorrect premise. 

Even if the PM emission limitation 

applicable to a source was developed to 

include the emissions during sootblowing specifically, it does not follow 

that sources should be completely 

exempted from opacity limitations 

during such periods. As the commenters 

themselves frequently acknowledged, 

when compared to other enforcement 

tools, SIP opacity provisions often 

provide a much more effective and 

continuous means of determining 

source compliance with SIP PM 

limitations and control measure 

performance. A typical SIP opacity 

provision imposes an emission 

limitation such as 20 percent opacity at 

all times, except for 6 minutes per hour 

when those emissions may rise to 40 

percent opacity. Well-maintained and 

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33912 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

251Some commenters on the February 2013 

proposal focused great attention on whether startup 

and shutdown are modes of ‘‘normal’’ source 

operation. The EPA assumes that every source is 

designed, maintained and operated with the 

expectation that the source will at least occasionally 

start up and shut down, and thus these modes of 

operation are ‘‘normal’’ in the sense that they are 

to be expected. The EPA used this term in the 

ordinary sense of the word to distinguish between 

such predictable modes of source operation and 

genuine ‘‘malfunctions,’’ which are by definition 

supposed to be unpredictable and unforeseen 

events that could not have been precluded by 

proper source design, maintenance and operation. 

well-operated sources should be able to 

meet such SIP opacity limitations. 

Given that properly designed, 

maintained and operated sources should 

typically have opacity substantially 

below these levels, elevated opacity at a 

source is a good indication that the 

source may not be in compliance with 

its applicable PM limitations. 

u. Comments that elimination of 

exemptions from SIP opacity emission 

limitations during SSM events will 

compel states to alter the averaging 

period of opacity limitations so as to 

allow sources to have elevated 

emissions during SSM events. 

Comment: Commenters argued that if 

exemptions for excess emissions during 

SSM events are not legally permissible 

in SIP opacity emission limitations, 

then states will have no option but to 

alter the existing opacity limitations. 

The commenters argued that if the SSM 

exemptions are removed, then the 

averaging time should be ‘‘greatly 

extended’’ and the numerical limits 

‘‘should be significantly increased.’’ 

Response: The EPA agrees that SIP 

provisions for opacity that contain 

exemptions for SSM events at issue in 

this action must be revised to eliminate 

the exemptions. States may elect to do 

this by merely removing the 

exemptions, by replacing the 

exemptions with appropriate alternative 

emission limitations that apply in place 

of the exemptions or, as the commenters 

evidently advocate, by a total overhaul 

of the emission limitation. The EPA 

disagrees, however, with the 

commenters’ contentions that removal 

of the SSM exemptions would 

necessarily result in extensions of the 

averaging time or increases of the 

numerical levels in the existing SIP 

opacity emission limitations. In some 

cases, extension of the averaging period 

and elevation of the numerical 

limitations may in fact be appropriate. 

In other cases, however, it may instead 

be appropriate to reduce the existing 

numerical opacity limitations, given 

improvements in control technology 

since the original imposition of the 

limits and the need for additional PM 

emission reductions from the affected 

sources due to more recent revisions to 

the PM NAAQS. Thus, the EPA notes, 

a total revision of some of the SIP 

opacity limitations at issue in this 

action may indeed be the proper course 

for states to consider. The implications 

of the commenters’ argument, however, 

are that existing opacity limitations will 

automatically need to be revised in 

order to allow sources to continue to 

emit as usual and that states and sources 

may ignore improvements that have 

been made in source design, operation, 

maintenance or controls to reduce 

emissions. The EPA emphasizes that the 

removal of impermissible SSM 

exemptions should not be perceived as 

an opportunity to provide new de facto 

exemptions for these emissions by 

manipulation of the averaging time and 

the numerical level of existing opacity 

emission limitations. 

In any event, the EPA is not in this 

final action deciding how states must 

revise SIP opacity emission limitations 

but is merely issuing a SIP call directing 

the affected states to eliminate existing 

automatic and discretionary exemptions 

for excess emissions during SSM events. 

The affected states will elect how best 

to respond to this SIP call, whether by 

simply removing the exemptions, by 

replacing the exemptions with 

appropriate alternative emission 

limitations applicable to startup and 

shutdown or other normal modes of 

operation or by a complete overhaul of 

the SIP provision in question. In 

particular, where the affected sources 

are located in designated nonattainment 

areas, there may be a need to evaluate 

additional controls that are needed for 

attainment planning purposes that were 

not necessary when the emission 

limitation was first adopted. Whichever 

approach a state determines to be most 

appropriate, the resulting SIP 

submission to revise the existing 

deficient provisions will be subject to 

review by the EPA pursuant to sections 

110(k)(3), 110(l) and 193. 

Considerations relevant to this issue are 

discussed in section X.B of this 

document. 

B. Alternative Emission Limitations 

During Periods of Startup and 

Shutdown 

1. What the EPA Proposed 

In the February 2013 proposal, the 

EPA reiterated its longstanding 

interpretation of the CAA that SIP 

provisions cannot include exemptions 

from emission limitations for emissions 

during SSM events but may include 

different requirements that apply to 

affected sources during startup and 

shutdown. Since the 1982 SSM 

Guidance, the EPA has clearly stated 

that startup and shutdown are part of 

the normal operation of a source and 

should be accounted for in the design 

and operation of the source. Thus, the 

EPA has long concluded that sources 

should be required to meet the 

applicable SIP emission limitations 

during normal modes of operation 

including startup and shutdown.251 In 

the 1983 SSM Guidance, the EPA 

explained that it may be appropriate to 

exercise enforcement discretion for 

violations that occur during startup and 

shutdown under proper circumstances. 

In the 1999 SSM Guidance, the EPA 

further explained that it interprets the 

CAA to permit SIP emission limitations 

that include alternative emission 

limitations specifically applicable 

during startup and shutdown. In the 

context of making recommendations to 

states for how to address emissions 

during startup and shutdown, the EPA 

provided seven criteria for states to 

evaluate in establishing appropriate 

alternative emission limitations. The 

specific purpose for these 

recommendations was to take into 

account technological limitations that 

might prevent compliance with the 

otherwise applicable emission 

limitations. As explained in detail in the 

February 2013 proposal, the EPA did 

not intend these criteria to be the basis 

for the creation of exemptions from SIP 

emission limitations during startup and 

shutdown, because the Agency 

interprets the CAA to prohibit such 

exemptions. 

In the February 2013 proposal, the 

EPA also repeated its guidance 

concerning establishment of alternative 

emission limitations that apply to 

sources during startup and shutdown, in 

those situations where the sources 

cannot meet the otherwise applicable 

SIP emission limitations. As explained 

in section VII.A of the February 2013 

proposal, the EPA interprets the CAA to 

require that SIP emission limitations 

must be continuous and thus to prohibit 

exemptions for emissions during startup 

and shutdown. This does not, however, 

mean that every SIP emission limitation 

must be expressed as a numerical 

limitation or that it must impose the 

same limitations during all modes of 

source operation. The EPA’s 

interpretation of the CAA with respect 

to SIP provisions is that SIP emission 

limitations: (i) Do not need to be 

numerical in format; (ii) do not have to 

apply the same limitation (e.g., 

numerical level) at all times; and (iii) 

may be composed of a combination of 

numerical limitations, specific 

technological control requirements and/ 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33913 

or work practice requirements, with 

each component of the emission 

limitation applicable during a defined 

mode of source operation. Regardless of 

how an air agency elects to express the 

emission limitation, however, the 

emission limitation must limit 

emissions from the affected sources on 

a continuous basis. Thus, if there are 

different numerical limitations or other 

control requirements that apply during 

startup and shutdown, those must be 

clearly stated components of the 

emission limitation, must meet the 

applicable level of control required for 

the type of SIP provision (e.g., be RACT 

for sources located in nonattainment 

areas) and must be legally and 

practicably enforceable. 

2. What Is Being Finalized in This 

Action 

The EPA is reiterating its 

interpretation of the CAA to allow SIP 

emission limitations to include 

components that apply during specific 

modes of source operation, such as 

startup and shutdown, so long as those 

components together create a 

continuously applicable emission 

limitation that meets the relevant 

substantive requirements and requisite 

level of stringency for the type of SIP 

provision at issue and is legally and 

practically enforceable. In addition, the 

EPA is updating the specific 

recommendations to states for 

developing such alternative emission 

limitations described in the February 

2013 proposal, by providing in this 

document some additional explanation 

and revisions to the text of its 

recommended criteria regarding 

alternative emission limitations. 

The EPA’s longstanding position is 

that the CAA does not allow SIP 

provisions that include exemptions 

from emission limitations for excess 

emissions that occur during startup and 

shutdown. The EPA reiterates that 

exemptions from SIP emission 

limitations are also not permissible for 

excess emissions that occur during other 

periods of normal source operation. A 

number of SIP provisions identified in 

the Petition create automatic or 

discretionary exemptions from 

otherwise applicable emission 

limitations during periods such as 

‘‘maintenance,’’ ‘‘load change,’’ ‘‘sootblowing,’’ ‘‘on-line operating changes’’ 

or other similar normal modes of 

operation. Like startup and shutdown, 

the EPA considers all of these to be 

modes of normal operation at a source, 

for which the source can be designed, 

operated and maintained in order to 

meet the applicable emission limitations 

and during which the source should be 

expected to control and minimize 

emissions. Accordingly, exemptions for 

emissions during these periods of 

normal source operation are not 

consistent with CAA requirements. 

Excess emissions that occur during 

planned and predicted periods should 

be treated as violations of any 

applicable emission limitations. 

However, the EPA interprets the CAA 

to allow SIPs to include alternative 

emission limitations for modes of 

operation during which an otherwise 

applicable emission limitation cannot 

be met, such as may be the case during 

startup or shutdown. The alternative 

emission limitation, whether a 

numerical limitation, technological 

control requirement or work practice 

requirement, would apply during a 

specific mode of operation as a 

component of the continuously 

applicable emission limitation. For 

example, an air agency might elect to 

create an emission limitation with 

different levels of control applicable 

during specifically defined periods of 

startup and shutdown than during other 

normal modes of operation. All 

components of the resulting emission 

limitation must meet the substantive 

requirements applicable to the type of 

SIP provision at issue, must meet the 

applicable level of stringency for that 

type of emission limitation and must be 

legally and practically enforceable. The 

EPA will evaluate a SIP submission that 

establishes a SIP emission limitation 

that includes alternative emission 

limitations applicable to sources during 

startup and shutdown consistent with 

its authority and responsibility pursuant 

to sections 110(k)(3), 110(l) and 193 and 

any other CAA provision substantively 

germane to the SIP revision. Absent a 

properly established alternative 

emission limitation for these modes of 

operation, a source should be required 

to comply with the otherwise applicable 

emission limitation. 

In addition, the EPA is providing in 

this document some additional 

explanation and clarifications to its 

recommended criteria for developing 

alternative emission limitations 

applicable during startup and 

shutdown. The EPA continues to 

recommend that, in order to be 

approvable (i.e., meet CAA 

requirements), alternative requirements 

applicable to the source during startup 

and shutdown should be narrowly 

tailored and take into account 

considerations such as the technological 

limitations of the specific source 

category and the control technology that 

is feasible during startup and shutdown. 

Accordingly, the EPA continues to 

recommend the seven specific criteria 

enumerated in section III.A of the 

Attachment to the 1999 SSM Guidance 

as appropriate considerations for SIP 

provisions that establish alternative 

emission limitations that apply to 

startup and shutdown. The EPA 

repeated those criteria in the February 

2013 proposal as guidance to states for 

developing components of emission 

limitations that apply to sources during 

startup, shutdown or other specific 

modes of source operation to meet CAA 

requirements for SIP provisions. 

Comments received on the February 

2013 proposal suggested that the 

purpose of the recommended criteria 

may have been misunderstood by some 

commenters. The criteria were phrased 

in such a way that commenters may 

have misinterpreted them to be criteria 

to be applied by a state retrospectively 

(i.e., after the fact) to an individual 

instance of emissions from a source 

during an SSM period, in order to 

establish whether the source had 

exceeded the applicable emission 

limitation. This was not the intended 

purpose of the recommended criteria at 

the time of the 1999 SSM Guidance, nor 

is it the intended purpose now. 

The EPA seeks to make clear in this 

document that the recommended 

criteria are intended as guidance to 

states developing SIP provisions that 

include emission limitations with 

alternative emission limitations 

applicable to specifically defined modes 

of source operation such as startup and 

shutdown. A state may choose to 

consider these criteria in developing 

such a SIP provision. The EPA will use 

these criteria when evaluating whether 

a particular alternative emission 

limitation component of an emission 

limitation meets CAA requirements for 

SIP provisions. Any SIP revision 

establishing an alternative emission 

limitation that applies during startup 

and shutdown would be subject to the 

same procedural and substantive review 

requirements as any other SIP 

submission. 

Based on comment on the February 

2013 proposal, the EPA is updating the 

criteria to make clear that they are 

recommendations relevant for 

development of appropriate alternative 

emission limitations in SIP provisions. 

Thus, in this document, the EPA is 

providing a restatement of its 

recommended criteria that reflects 

clarifying but not substantive changes to 

the text of those criteria. One clarifying 

change is removal of the word ‘‘must’’ 

from the criteria, to better convey that 

these are recommendations to states 

concerning how to develop an 

approvable SIP provision with 

alternative requirements applicable to 

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33914 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

startup and shutdown and to make clear 

that other approaches might also be 

consistent with the CAA in particular 

circumstances. 

The clarified criteria for developing 

and evaluating alternative emission 

limitations applicable during startup 

and shutdown are as follows: 

(1) The revision is limited to specific, 

narrowly defined source categories 

using specific control strategies (e.g., 

cogeneration facilities burning natural 

gas and using selective catalytic 

reduction); 

(2) Use of the control strategy for this 

source category is technically infeasible 

during startup or shutdown periods; 

(3) The alternative emission limitation 

requires that the frequency and duration 

of operation in startup or shutdown 

mode are minimized to the greatest 

extent practicable; 

(4) As part of its justification of the 

SIP revision, the state analyzes the 

potential worst-case emissions that 

could occur during startup and 

shutdown based on the applicable 

alternative emission limitation; 

(5) The alternative emission limitation 

requires that all possible steps are taken 

to minimize the impact of emissions 

during startup and shutdown on 

ambient air quality; 

(6) The alternative emission limitation 

requires that, at all times, the facility is 

operated in a manner consistent with 

good practice for minimizing emissions 

and the source uses best efforts 

regarding planning, design, and 

operating procedures; and 

(7) The alternative emission limitation 

requires that the owner or operator’s 

actions during startup and shutdown 

periods are documented by properly 

signed, contemporaneous operating logs 

or other relevant evidence. 

It may be appropriate for an air 

agency to establish alternative emission 

limitations that apply during modes of 

source operation other than during 

startup and shutdown, but any such 

alternative emission limitations should 

be developed using the same criteria 

that the EPA recommends for those 

applicable during startup and 

shutdown. 

3. Response to Comments 

The EPA received a number of 

comments, both supportive and adverse, 

concerning the issue of how air agencies 

may replace existing exemptions for 

emissions during SSM events with 

alternative emission limitations that 

apply during startup, shutdown or other 

normal modes of source operation. The 

majority of these comments were critical 

of the EPA’s position but did not base 

this criticism on an interpretation of 

specific CAA provisions. For clarity and 

ease of discussion, the EPA is 

responding to these comments, grouped 

by issue, in this section of this 

document. 

a. Comments that as a technical 

matter sources cannot meet emission 

limitations (or cannot be accurately 

monitored) during startup and 

shutdown. 

Comment: Several commenters 

claimed that as a technical matter, SIP 

emission limitations cannot be met or 

that monitoring to ensure compliance 

with emission limitations cannot occur 

during startup and shutdown. 

Commenters raised ‘‘practical concerns’’ 

with the EPA’s proposal as it applies to 

emissions during SSM at electric 

generating units (EGUs). The 

commenters claimed that it is incorrect 

to treat periods of startup and shutdown 

as part of ‘‘normal source operation’’ 

and claimed that it is fundamentally 

incorrect to characterize all periods of 

startup and shutdown as planned 

events. The commenters claimed that 

many air pollution control devices 

(APCDs) are subject to technical, 

operational or safety constraints that 

prevent use or optimization during 

startup and shutdown periods. The 

commenters requested the EPA to 

continue the practice of allowing states 

to provide ‘‘protection’’ from 

enforcement for excess emissions during 

startup and shutdown. The commenters 

claimed that the EPA’s premise for this 

action is that startup and shutdown 

events are planned and sources should 

be able to meet limits applicable during 

these normal operations. The 

commenters asserted that the proposal 

does not recognize technical and 

operational limits and that it conflicts 

with the EPA’s own acknowledgement 

in the proposal that there are sometimes 

technical, operational and safety limits 

that may prevent compliance with 

emission limitations during startup and 

shutdown. The commenters also noted 

that the type of equipment that a control 

device is attached to may affect the time 

it takes for a control device to reach 

optimization. Further, the commenters 

identified control technologies that 

cannot achieve reductions until specific 

temperatures are reached and other 

technologies that cannot be used during 

startup and/or shutdown because of 

technical limitations or safety concerns. 

Finally, the commenters noted that the 

geographical location and/or weather 

can have an effect on the operation of 

a source and control devices during 

startup and shutdown. 

Commenters raised specific concerns 

regarding pollution controls for EGUs. 

The commenters claimed that startup 

and shutdown events are unavoidable at 

EGUs even though they may be planned. 

The commenters also attached 

appendices providing an explanation of 

why emissions are higher for startup 

and shutdown for certain types of EGUs. 

The commenters claimed that the 

‘‘EPA’s proposal to eliminate the States’ 

SSM provisions, and prohibit them from 

adopting any provisions for startups and 

shutdowns, could force sources to 

comply with emission limitations 

during periods when they were never 

meant to apply, thus rendering those 

emissions limitations unachievable.’’ 

The commenters also noted that the 

permits for their sources all require that 

the sources minimize the magnitude 

and duration of emissions during SSM. 

The implication of this latter comment 

is that a general duty to minimize 

emissions is sufficient to justify the 

exemption of all emissions during SSM 

events in the underlying SIP provisions. 

Response: Although intended as 

criticism of the EPA’s proposed action, 

these comments in fact support the 

Agency’s position that states should 

consider startup and shutdown events 

as they promulgate standards for 

specific industries or even for specific 

sources. The commenters seem to 

suggest that because some equipment or 

sources cannot during startup and 

shutdown meet the emission limits that 

apply during ‘‘regular’’ operation, no 

limit or standards should apply during 

startup and shutdown. The EPA 

disagrees. As the court in Sierra Club 

held, emission limitations must apply at 

‘‘all times.’’ That is not to say that the 

emission limitation must impose the 

same numerical limitation or impose the 

same other control requirement at all 

times. As explained at length in section 

VII.A of this document, the EPA 

interprets the CAA to allow SIP 

emission limitations that may be a 

combination of numerical limitations, 

technological control measures and/or 

work practice requirements, so long as 

the resulting emission limitations are 

properly developed to meet CAA 

requirements and are legally and 

practically enforceable. As the 

commenters noted, the EPA does 

recognize that some control equipment 

cannot be operated at all or in the same 

manner during every mode of normal 

operations. 

In its 1999 SSM Guidance, the EPA 

expressly recognized that an appropriate 

way for a state to address such 

technological limitations is to set 

alternative emission limitations that 

apply during periods of startup and 

shutdown as part of the SIP emission 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33915 

252See 1999 SSM Guidance, Attachment at 4–5. 253The EPA notes that it has taken this approach 

in its own recent actions establishing emission 

limitations for sources. See, e.g., ‘‘National 

Emission Standards for Hazardous Air Pollutants 

for Major Sources: Industrial, Commercial, and 

Institutional Boilers and Process Heaters; Final rule; 

notice of final action on reconsideration,’’ 78 FR 

7137 (January 31, 2013) (example of work practice 

requirement for startup as a component of a 

continuous emission limitation). 

254The EPA notes that it has taken this approach 

in its own recent actions establishing emission 

limitations for sources. See, e.g., ‘‘National 

Emission Standards for Hazardous Air Pollutants 

Residual Risk and Technology Review for Flexible 

Polyurethane Foam Production; Final rule,’’ 79 FR 

48073 (August 15, 2014) (example of NESHAP 

emission limitation that is continuous and does not 

include a different component for periods of startup 

or shutdown). 

limitation.252 In these cases the state 

should consider how the control 

equipment works in determining what 

standards should apply during startup 

and shutdown. In addition, as noted by 

commenters, such standards may vary 

based on location (e.g., standards in a 

hot and humid area may differ from 

those adopted for a cool and dry area). 

Some equipment during startup and 

shutdown may be unable to meet the 

same emission limitation that applies 

during steady-state operations and so 

alternative limitations for startup and 

shutdown may be appropriate.253

However, for many sources, it should be 

feasible to meet the same emission 

limitation that applies during steadystate operations also during startup and 

shutdown.254 These are issues for the 

state to consider in developing specific 

regulations as they revise the deficient 

SIP provisions identified in this action. 

The EPA emphasizes that the state has 

discretion to determine the best means 

by which to revise a deficient provision 

to eliminate an automatic or 

discretionary SSM exemption, so long 

as that revision is consistent with CAA 

requirements. The EPA will work with 

the states as they consider possible 

revisions to deficient provisions. 

The EPA recognizes that a 

malfunction may cause a source to shut 

down in a manner different than in a 

planned shutdown, and in that case, 

such a shutdown would typically be 

considered part of the malfunction 

event. However, as part of the normal 

operation of a facility, sources typically 

will also have periodic or otherwise 

scheduled startup and shutdown of 

equipment, and steps to limit emissions 

during this type of event are or can be 

planned for. The EPA disagrees with the 

suggestion of commenters that because 

some startup or shutdown events may 

be unplanned, all startup and shutdown 

events should be exempt from 

compliance with any requirements. For 

those events that are planned, the state 

should be able to establish requirements 

to regulate emissions, such as a 

numerical limitation, technological 

control measure or work practice 

standard that will apply as a part of the 

revised emission limitation. When 

unplanned startup or shutdown events 

are part of a malfunction, they should be 

treated the same as a malfunction; 

however, as with malfunctions, startup 

and shutdown events cannot be 

exempted from compliance with SIP 

requirements. Questions of liability and 

remedy for violations that result from 

malfunctions are to be resolved in the 

context of an enforcement action, if 

such an action occurs. 

b. Comments that it is impossible, 

unreasonable or impractical for states to 

develop emission limitations that apply 

during startup and shutdown to replace 

existing exemptions. 

Comment: A number of commenters 

suggested that it will be difficult for 

states to develop emission limits that 

apply during startup and shutdown. 

One state commenter reasoned that 

alternative emission limits are applied 

to facilities in that state through 

individual permits on a case-by-case 

basis and claimed that there are 500 

permitted facilities in the state. The 

commenter contended that ‘‘non-steadystate’’ limits would need to be set for 

startup and shutdown for all 500 

permitted facilities and that such an 

effort would be ‘‘time, resource, and 

data intensive.’’ The state commenter 

further contended that it would be 

unreasonable to require the state to 

include such limits ‘‘for every source’’ 

in the SIP because ‘‘permit 

modifications would need to occur 

every time there is a new emission 

source, a source ceases to operate, or an 

emission-related regulation is changed.’’ 

A local government commenter stated 

that to establish limits for startup and 

shutdown that also demonstrate 

compliance with the NSR regulations 

(including protection of the NAAQS and 

PSD increments and maintenance of 

BACT or LAER) would be a difficult, 

time-consuming task that was mostly 

impractical. 

An industry commenter claimed that 

the EPA is encouraging states to adopt 

numerical alternative emission 

limitations in their SIP provisions that 

would apply during startup and 

shutdown. The commenter claimed that 

adequate and accurate emissions data 

are necessary to do so and that such 

information is not generally available 

for existing equipment or, in many 

cases, for new equipment. Furthermore, 

the commenter asserted, even if an 

emission limit could be established for 

startup and shutdown, there are no 

current approved test measures to verify 

compliance during such modes of 

operation. Even where data are 

available, the commenter alleged, the 

data may not be representative of actual 

conditions because of limitations related 

to low-load conditions. If a state lacks 

information to conclude that a limit can 

be met, the commenter argued, the state 

should not be required to establish 

numerical limits but should instead be 

allowed ‘‘to specify that numerical 

standards do not apply to those 

conditions or that those conditions are 

exempt, or should be allowed to 

establish work practice standards.’’ 

Response: The comments of the state 

commenter seem to be based on the 

premise that all sources will be unable 

to meet otherwise applicable SIP 

emission limitations during periods of 

startup and shutdown. The EPA 

anticipates that many types of sources 

should be able during startup and 

shutdown to meet the same emission 

limitation that applies during full 

operation. Additionally, even where a 

specific type of operation may not 

during startup and/or shutdown be able 

to meet an emission limitation that 

applies during full operation, the state 

should be able to develop appropriate 

limitations that would apply to those 

types of operations at all similar types 

of facilities. The EPA believes that there 

will be limited, if any, cases where it 

may be necessary to develop sourcespecific emission requirements for 

startup and/or shutdown. In any event, 

this is a question that is best addressed 

by each state in the context of the 

revisions to the SIP provisions at issue 

in this action. To the extent that there 

are appropriate reasons to establish an 

emission limitation with alternative 

numerical, technological control and/or 

work practice requirements during 

startup or shutdown for certain 

categories of sources, this SIP call action 

provides the state with the opportunity 

to do so. 

As to the commenter’s concern that 

such alternative emission limitations 

should not be included in a state’s SIP, 

the EPA disagrees. The SIP needs to 

reflect the control obligations of sources, 

and any revision or modification of 

those obligations should not be 

occurring through a separate process, 

such as a permit process, which would 

not ensure that ‘‘alternative’’ 

compliance options do not weaken the 

SIP. The SIP is a combination of state 

statutes, regulations and other 

requirements that the EPA approves for 

demonstrating attainment and 

maintenance of the NAAQS, protection 

of PSD increments, improvement of 

visibility and compliance with other 

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33916 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

255See Memorandum from John B. Rasnic, EPA/ 

OAQPS, January 28, 1993, in the rulemaking docket 

at EPA–HQ–OAR–2012–0322–0022. 

256The Industrial Boiler MACT rule regulates 

industrial, commercial and institutional boilers and 

process heaters at major sources under 40 CFR part 

63, subpart DDDDD. 

257While some HAPs are also VOCs or particulate 

matter, many HAPs are not. Moreover, there are 

many VOCs and types of particulate matter that are 

not HAPs and thus are not regulated under the 

MACT standards. The MACT standards also do not 

address other criteria pollutants or pollutant 

precursors from sources that may be relevant for SIP 

purposes. 

CAA requirements. As discussed in 

section X.B of this document, any 

revisions to obligations in the SIP need 

to occur through the SIP revision 

process and must comply with sections 

110(k)(3), 110(l) and 193 and any other 

applicable substantive requirements of 

the CAA. 

As to concerns that a SIP revision will 

be necessary every time a new source 

comes into existence, an existing source 

is permanently retired or a new 

regulation is promulgated, the EPA does 

not see these as significant concerns. 

Unless the startup or shutdown process 

for an individual source is truly unique 

to that source, then existing SIP 

provisions for sources within the same 

industrial category should be able to 

apply to any new source. Moreover, 

assuming any new source is subject to 

permitting obligations, then any 

applicable startup and shutdown issues 

should already be resolved in 

developing the permit for such source. 

The state could choose to incorporate 

that permit by reference into the SIP at 

the time it next modifies its SIP. 

Further, assuming that there is a sourcespecific regulation for a source in the 

SIP (a circumstance that the EPA 

believes would occur only rarely), the 

state is not obligated to remove such 

provision when the source is retired. 

Rather, the state could leave the 

provision in its rules or remove such a 

provision the next time it submits 

another SIP revision or when it chooses 

to do a ‘‘cleanup’’ of the SIP, an activity 

that numerous states have taken from 

time to time. Finally, whenever a new 

regulation is promulgated is precisely 

the time that a state should be 

considering the appropriate provisions 

that would apply during startup and 

shutdown, as that is the time when the 

state is considering what is necessary to 

comply with the CAA and what is 

necessary to meet attainment, 

maintenance or other requirements of 

the CAA. 

The local government commenter 

contended that establishing limits for 

startup and shutdown that also 

demonstrate compliance with the NSR 

regulations (including protection of the 

NAAQS and PSD increments and 

imposition of BACT- or LAER-level 

controls) would be a difficult, timeconsuming task that was impractical. 

The commenter did not provide an 

explanation of how this would be 

difficult. The implication of the 

comment is that a SIP provision that 

provides an exemption or an affirmative 

defense for emissions during startup 

and shutdown would be compliant with 

the statutory requirements and NSR 

regulations (including attainment of the 

NAAQS and protecting PSD 

increments). That is incorrect because 

the EPA does not interpret the CAA to 

allow such exemptions or affirmative 

defenses for purposes of NSR 

regulations. The suggestion that a SIP 

provision that does not regulate 

emissions during startup and shutdown 

would be more likely to address 

NAAQS attainment and to protect PSD 

increments than would a SIP provision 

that does regulate such emissions is 

illogical. The EPA further notes that the 

Agency’s interpretation of the CAA, 

explicitly set forth in a 1993 guidance 

document, has been that periods of 

startup and shutdown must be 

addressed in any new source permit.255

Moreover, the EPA explained in the 

February 2013 proposal, in the SNPR 

and in the background memorandum 

accompanying the February 2013 

proposal concerning the legal basis for 

this action why exemptions and 

affirmative defenses applicable to 

emissions during SSM events are not 

consistent with CAA requirements for 

SIP provisions. 

c. Comments that the EPA should 

‘‘authorize’’ states to replace SSM 

exemptions with ‘‘work practice’’ 

standards developed by the EPA in its 

own recent NESHAP and NSPS rules. 

Comment: Commenters suggested that 

the EPA should allow states to use work 

practice standards to address emissions 

during startup and shutdown. The 

NESHAP rules cited by commenters 

included the Industrial Boiler MACT 

rule 256 and the MATS rule, and the 

NSPS rules cited by the commenters 

included the NSPS for Electric Utility 

Steam Generating Units (40 CFR part 60, 

subpart Da) and the gas turbine NSPS as 

examples of where the EPA itself has 

established work practice standards 

rather than numerical emission 

limitations for periods of startup and 

shutdown. The commenters suggested 

that where these work practice 

standards are already in place, states 

should be able to rely on the work 

practice standards rather than having to 

create new SIP provisions. 

Response: The EPA agrees that states 

may adopt work practice standards to 

address periods of startup and 

shutdown as a component of a SIP 

emission limitation that applies 

continuously. Adoption of work 

practice standards from a NESHAP or 

NSPS as a component of an emission 

limitation to satisfy SIP requirements is 

addressed in this document not as a 

requirement or even as a 

recommendation but rather as an 

approach that a state may use at its 

option. The EPA cannot foretell the 

extent to which this optional approach 

of adopting other existing standards to 

satisfy SIP requirements may benefit an 

individual state. For a state choosing to 

use this approach, such work practice 

standards must meet the otherwise 

applicable CAA requirements (e.g., be a 

RACT-level control for the source as 

part of an attainment plan requirement) 

and the necessary parameters to make it 

legally and practically enforceable (e.g., 

have adequate recordkeeping, reporting 

and/or monitoring requirements to 

assure compliance). However, it cannot 

automatically be assumed that emission 

limitation requirements in recent 

NESHAP and NSPS are appropriate for 

all sources regulated by SIPs. The 

universe of sources regulated under the 

federal NSPS and NESHAP programs is 

not identical to the universe of sources 

regulated by states for purposes of the 

NAAQS. Moreover, the pollutants 

regulated under the NESHAP (i.e., 

HAPs) are in many cases different than 

those that would be regulated for 

purposes of attaining and maintaining 

the NAAQS, protecting PSD increments, 

improving visibility and meeting other 

CAA requirements.257 Thus, the EPA 

cannot say as a matter of law that those 

federal regulations establish emission 

limitation requirements appropriate for 

all of the sources that states are 

regulating in their SIPs or for the 

purpose for which they are being 

regulated. The EPA believes, however, 

that those federal regulations and the 

technical materials in the public record 

for those rules may provide assistance 

for states as they develop and consider 

regulations for sources in their states 

and may be appropriate for adoption by 

the state in certain circumstances. In 

particular, the NSPS regulations should 

provide very relevant information for 

sources of the same type, size and 

control equipment type, even if the 

sources were not constructed or 

modified within a date range that would 

make them subject to the NSPS. The 

EPA therefore encourages states to 

explore these approaches, as well as any 

other relevant information available, in 

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258See February 2013 proposal, 78 FR 12459 at 

12485–86. 

259See 1999 SSM Guidance at 3. 

260 In this action, the EPA is addressing the 

specific SIP provisions with director’s discretion 

provisions that the Petitioner listed in the Petition. 

In the event that there are other such impermissible 

director’s discretion provisions in existing SIPs, the 

EPA will address those provisions in a later action. 

261For example, commenters on the February 

2013 proposal cited two decisions of the Fifth 

Circuit within which the court cited a prior EPA 

approval of a SIP revision in Georgia that contained 

director’s discretion provisions supposedly 

comparable to those at issue in the Fifth Circuit 

cases. These provisions were not included in the 

Petition and the EPA is not reexamining those 

provisions as part of this action. 

determining what is appropriate for 

revised SIP provisions. 

d. Comments that if states remove 

existing SSM exemptions and replace 

them with alternative emission 

limitations that apply during startup 

and shutdown events, this would 

automatically be consistent with the 

requirements of CAA section 193. 

Comment: Commenters stated that 

section 193 was included in the CAA to 

prohibit states from modifying 

regulations in place prior to November 

15, 1990, unless the modification 

ensures equivalent or greater reductions 

of the pollutant. The commenters 

asserted that to the extent a state 

replaces ‘‘general excess emissions 

exclusions and/or affirmative defense 

provisions’’ such amendments would 

per se be more stringent than the 

provisions they replace. The 

commenters also contended that any 

replacement SIP provision that spells 

out more clearly how a source will 

operate ensures equivalent or greater 

emission reductions. The commenters 

urged the EPA to clarify that any 

revisions pursuant to a final SIP call 

would not be considered ‘‘backsliding.’’ 

Response: The EPA agrees with the 

commenters that any SIP submission 

made by a state in response to this SIP 

call action will need to comply with the 

requirements of section 193 of the CAA, 

if that section applies to the SIP 

provision at issue. In addition, such SIP 

provision will also need to comply with 

section 110(l), which requires that SIP 

revisions do not interfere with 

attainment, reasonable progress or any 

other applicable requirement of the 

CAA. However, it is premature to draw 

the conclusion that any SIP revision 

made by a state in response to this SIP 

call will automatically meet the 

requirements of section 110(l) and 

section 193. Such a conclusion could 

only be made in the context of 

reviewing the actual SIP revision. The 

EPA will address this issue, for each SIP 

revision in response to this SIP call 

action, at the time that it proposes and 

finalizes action on the SIP revision, and 

any comments on this issue can be 

raised during those individual 

rulemaking actions. The EPA provides 

additional guidance to states on the 

analysis needed to comply with section 

110(l) and section 193 in section X.B of 

this document. 

C. Director’s Discretion Provisions 

Pertaining to SSM Events 

1. What the EPA Proposed 

In the February 2013 proposal, the 

EPA stated and explained in detail the 

reasons for its belief that the CAA 

prohibits unbounded director’s 

discretion provisions in SIPs, including 

those provisions that purport to 

authorize unilateral revisions to, or 

exemptions from, SIP emission 

limitations for emissions during SSM 

events.258

2. What Is Being Finalized in This 

Action 

The EPA is reiterating its 

interpretation of the CAA with respect 

to unbounded director’s discretion 

provisions applicable to emissions 

during SSM events, which is that SIP 

provisions cannot contain director’s 

discretion to alter SIP requirements, 

including those that allow for variances 

or outright exemptions for emissions 

during SSM events. This interpretation 

has been clear with respect to emissions 

during SSM events in the SSM Policy 

since at least 1999. In the 1999 SSM 

Guidance, the EPA stated that it would 

not approve SIP revisions ‘‘that would 

enable a State director’s decision to bar 

EPA’s or citizens’ ability to enforce 

applicable requirements.’’ 259 Director’s 

discretion provisions operate to allow 

air agency personnel to make just such 

unilateral decisions on an ad hoc basis, 

up to and including the granting of 

complete exemptions for emissions 

during SSM events, thereby negating 

any possibility of enforcement for what 

would be violations of the otherwise 

applicable emission limitation. Given 

that the EPA interprets the CAA to bar 

exemptions from SIP emission 

limitations for emissions during SSM 

events in the first instance, the fact that 

director’s discretion provisions operate 

to authorize these exemptions on an ad 

hoc basis compounds the problem. The 

EPA acknowledges, however, that both 

states and the Agency have, in some 

instances, failed to adhere to the 

requirements of the CAA with respect to 

this issue consistently in the past, and 

thus the need for this SIP call to correct 

existing deficiencies in SIPs.260 In order 

to be clear about its interpretation of the 

CAA with respect to this point on a 

going-forward basis, the EPA is 

reiterating in this action that SIP 

provisions cannot contain unbounded 

director’s discretion provisions, 

including those that operate to allow for 

variances or outright exemptions from 

SIP emission limitations for excess 

emissions during SSM events. 

Many commenters on the February 

2013 proposal opposed the EPA’s 

interpretation of the CAA with respect 

to director’s discretion provisions 

simply on the grounds that states are per 

se entitled to have unfettered discretion 

with respect to the content of their SIP 

provisions. Other commenters argued 

that any director’s discretion provision 

is merely a manifestation of an air 

agency’s general ‘‘enforcement 

discretion.’’ Some commenters simply 

asserted that recent court decisions by 

the Fifth Circuit definitively establish 

that the CAA does not prohibit SIP 

provisions that include director’s 

discretion, regardless of whether those 

provisions contain any limitations 

whatsoever on the exercise of that 

discretion.261 The commenters did not, 

however, address the specific statutory 

interpretations that the EPA set forth in 

the February 2013 proposal to explain 

why SIP provisions that authorize 

unlimited director’s discretion are 

prohibited by CAA provisions 

applicable to SIP revisions. 

As explained in detail in the February 

2013 proposal and in section VII.C of 

this document, the EPA interprets the 

CAA to prohibit SIP provisions that 

include unlimited director’s discretion 

to alter the SIP emission limitations 

applicable to sources, including those 

that operate to allow exemptions for 

emissions from sources during SSM 

events. The EPA believes that such 

provisions that operate to authorize total 

exemptions from emission limitations 

on an ad hoc basis are especially 

problematic. Given that the EPA 

interprets section 110(a)(2)(A) and 

section 302(k) to preclude exemptions 

for emissions during SSM events in 

emission limitations in the first 

instance, it is also impermissible for 

states to have SIP provisions that 

authorize such exemptions on an ad hoc 

basis. These provisions functionally 

allow the air agency to impose its own 

enforcement discretion decisions on the 

EPA and other parties by granting 

exemptions for emissions that should be 

treated as violations of the applicable 

SIP emission limitations. Provisions that 

functionally allow such exemptions are 

also inconsistent with requirements of 

the CAA related to enforcement 

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33918 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

262See, e.g., 40 CFR 51.104(d) and 40 CFR 51.105. 

263See, e.g., Sierra Club v. TVA, 430 F.3d 1337, 

1346 (11th Cir. 2005) (‘‘If a state wants to add, 

delete, or otherwise modify a SIP provision, it must 

submit the proposed change to EPA for approval’’); 

Duquesne Light Co. v. EPA, 698 F.2d 456, 468 n.12 

(D.C. Cir. 1983) (‘‘with certain enumerated 

exceptions, states do not have the power to take any 

action modifying any requirement of their SIPs, 

without approval from EPA’’); Train v. NRDC, 421 

U.S. 60, 92 (1975) (‘‘[A] polluter is subject to 

existing requirements until such time as he obtains 

a variance, and variances are not available under 

the revision authority until they have been 

approved by both the State and the Agency’’). 

including: (i) The general requirements 

of section 110(a)(1) that SIPs provide for 

enforcement; (ii) the section 110(a)(2)(A) 

requirement that the specific emission 

limitations and other contents of SIPs be 

enforceable; and (iii) the section 

110(a)(2)(C) requirement that SIPs 

contain a program to provide for 

enforcement. Moreover, these 

provisions operate to interfere with the 

enforcement structure of the CAA 

provided in section 113 and section 304, 

through which the EPA and other 

parties have authority to seek 

enforcement for violations of CAA 

requirements, including SIP emission 

limitations. 

There are two ways in which such a 

provision can be consistent with CAA 

requirements: (1) When the exercise of 

director’s discretion by the state agency 

to alter or eliminate the SIP emission 

limitation can have no effect for 

purposes of federal law unless and until 

the EPA ratifies that state action with a 

SIP revision; or (2) when the director’s 

discretion authority is adequately 

bounded such that the EPA can 

ascertain in advance, at the time of 

approving the SIP provision, how the 

exercise of that discretion to alter the 

SIP emission limitations for a source 

could affect compliance with other CAA 

requirements. If the provision includes 

director’s discretion that could result in 

violation of any other CAA requirement 

for SIPs, then the EPA cannot approve 

the provision consistent with the 

requirements of section 110(k)(3) and 

section 110(l). For example, a director’s 

discretion provision that authorizes 

state personnel to excuse source 

compliance with SIP emission 

limitations during SSM events could not 

be approved because the provision 

would run afoul of the requirement that 

sources be subject to emission 

limitations that apply continuously, 

consistent with section 302(k). 

3. Response to Comments 

The EPA received a number of 

comments, both supportive and adverse, 

concerning the issue of director’s 

discretion provisions in SIPs. The 

majority of these comments were critical 

of the EPA’s position but did not base 

this criticism on an interpretation of 

specific CAA provisions. For clarity and 

ease of discussion, the EPA is 

responding to these comments, grouped 

by issue, in this section of this 

document. 

a. Comments that broad state 

discretion in how to develop SIP 

provisions includes the authority to 

create provisions that include director’s 

discretion variances or exemptions for 

excess emission during SSM events. 

Comment: A number of state and 

industry commenters argued that 

because states have great discretion 

when developing SIP provisions in 

general, this necessarily includes the 

ability to create director’s discretion 

provisions in SIPs that authorize state 

personnel to grant unilateral variances 

or exemptions for emissions during 

SSM events. According to commenters, 

the overarching principle of 

‘‘cooperative federalism’’ and court 

decisions concerning the division of 

regulatory responsibilities between the 

states and the EPA support their view 

that states can create SIP provisions that 

provide authority to alter the SIP 

emission limitations or other 

requirements via director’s discretion 

provisions without restriction. 

Response: The EPA disagrees with the 

commenters’ view that director’s 

discretion provisions in SIPs are per se 

permissible because of the principles of 

cooperative federalism. As explained in 

more detail in section V.D.2 of this 

document, states and the EPA each have 

authorities and responsibilities under 

the CAA. With respect to SIPs, under 

section 107(a) the states have primary 

responsibility for assuring attainment of 

the NAAQS within their borders. Under 

section 110(a) the states have a statutory 

duty to develop and submit a SIP that 

provides for the attainment, 

maintenance and enforcement of the 

NAAQS, as well as meeting many other 

CAA requirements and objectives. The 

specific procedural and substantive 

requirements that states must meet for 

SIPs are set forth in section 110(a)(1) 

and section 110(a)(2) and in other more 

specific requirements throughout the 

CAA (e.g., the attainment plan 

requirements for each of the NAAQS as 

specified in part D). By contrast, the 

EPA has its own statutory authorities 

and responsibilities, including the 

obligation to review new SIP 

submissions for compliance with CAA 

procedural and substantive 

requirements pursuant to sections 

110(k)(3), 110(l) and 193. In addition, 

the EPA has authority to assure that 

previously approved SIP provisions 

continue to meet CAA requirements, 

whether through the SIP call authority 

of section 110(k)(5) or the error 

correction authority of section 110(k)(6). 

As the EPA explained in detail in the 

February 2013 proposal, SIP provisions 

that include unbounded director’s 

discretion to alter the otherwise 

applicable emission limitations are 

inconsistent with CAA requirements. 

Such provisions purport to authorize air 

agency personnel unilaterally to change 

or to eliminate the applicable SIP 

emission limitations for a source 

without meeting the requirements for a 

SIP revision. Pursuant to the EPA’s own 

responsibilities under sections 

110(k)(3), 110(l) and 193 and any other 

CAA provision substantively germane to 

the specific SIP provision at issue, it 

would be inappropriate for the Agency 

to approve a SIP provision that 

automatically preauthorized the state 

unilaterally to revise the SIP emission 

limitation without meeting the 

applicable procedural and substantive 

statutory requirements for a SIP 

revision. Section 110(i) prohibits 

modification of SIP requirements for 

stationary sources by either the state or 

the EPA, except through specified 

processes. The EPA’s implementing 

regulations applicable to SIP provisions 

likewise impose requirements for a 

specific process for the approval of SIP 

revisions.262 In addition, section 116 

explicitly prohibits a state from 

adopting or enforcing regulations for 

sources that are less stringent than what 

is required by the emission limitations 

in its SIP, i.e., the emission limitation 

previously approved by the EPA as 

meeting the requirements of the CAA 

applicable to that specific SIP provision. 

It is a fundamental tenet of the CAA that 

states cannot unilaterally change SIP 

provisions, including the emission 

limitations within SIP provisions, 

without the EPA’s approval of the 

change through the appropriate process. 

This core principle has been recognized 

by multiple courts.263

b. Comments that director’s discretion 

provisions are an exercise of 

‘‘enforcement discretion.’’ 

Comment: Several state and industry 

commenters asserted that the EPA was 

wrong to interpret the CAA to preclude 

director’s discretion provisions, because 

such provisions are merely an exercise 

of a state’s traditional ‘‘enforcement 

discretion.’’ 

Response: The EPA disagrees that a 

director’s discretion provision in a SIP 

is a valid exercise of enforcement 

discretion. Normally, the concept of 

enforcement discretion is understood to 

mean that a regulator has discretion to 

determine whether a specific violation 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33919 

264 1999 SSM Guidance at 3. 

of the law by a source warrants 

enforcement and to determine the 

nature of the remedy to seek for any 

such violation. The EPA of course 

agrees that states have enforcement 

discretion of this type and that the states 

may exercise such enforcement 

discretion as they see fit, as does the 

Agency itself. However, the EPA does 

not agree that air agencies may create 

SIP provisions that operate to eliminate 

the ability of the EPA or citizens to 

enforce the emission limitations of the 

SIP. The EPA stated clearly in the 1999 

SSM Guidance that it would not 

approve SIP provisions that ‘‘would 

enable a State director’s decision to bar 

EPA’s or citizens’ ability to enforce 

applicable requirements.’’ 264 The 

Agency explained at that time that such 

an approach is inconsistent with the 

requirements of the CAA applicable to 

the enforcement of SIPs. 

The commenters’ argument was that 

states may create SIP provisions through 

which they may unilaterally decide that 

the emissions from a source during an 

SSM event should be exempted, such 

that the emissions cannot be treated as 

a violation by anyone. A common 

formulation of such a provision 

provides only that the source needs to 

notify the state regulatory agency that an 

exceedance of the emission limitations 

occurred and to report that the 

emissions were the result of an SSM 

event. If those minimal steps occur, then 

such provisions commonly authorize 

state personnel to make an 

administrative decision that the 

emissions in question were not a 

‘‘violation’’ of the applicable emission 

limitation. It may be entirely 

appropriate for the state agency to elect 

not to bring an enforcement action 

based on the facts and circumstances of 

a given SSM event, as a legitimate 

exercise of its own enforcement 

discretion. However, by creating a SIP 

provision that in effect authorizes the 

state agency to alter or suspend the 

otherwise applicable SIP emission 

limitations unilaterally through the 

granting of exemptions, the state agency 

would functionally be revising the SIP 

with respect to the emission limitations 

on the source. This revision of the 

applicable emission limitation would 

have occurred without satisfying the 

requirements of the CAA for a SIP 

revision. As a result of this ad hoc 

revision of the SIP emission limitation, 

the EPA and other parties would be 

denied the ability to exercise their own 

enforcement discretion. This is contrary 

to the fundamental enforcement 

structure of the CAA, as provided in 

section 113 and section 304, through 

which the EPA and other parties are 

authorized to bring enforcement actions 

for violations of SIP emission 

limitations. The state’s decision not to 

exercise its own enforcement discretion 

cannot be a basis on which to eliminate 

the legal rights of the EPA and other 

parties to seek to enforce. 

The commenters also suggested that 

the director’s discretion provisions 

authorizing exemptions for SSM events 

are nonsegregable parts of the emission 

limitations, i.e., that states have 

established the numerical limitations at 

overly stringent levels specifically in 

reliance on the existence of exemptions 

for any emissions during SSM events. 

Although commenters did not provide 

facts to support the claims that states set 

more stringent emission limitations in 

reliance on SSM exemptions, in general 

or with respect to any specific emission 

limitation, the EPA acknowledges that 

this could possibly have been the case 

in some instances. Even if a state had 

taken this approach, however, it does 

not follow that SIP provisions 

containing exemptions for SSM events 

are legally permissible. Emission 

limitations in SIPs must be continuous. 

When a state takes action in response to 

this SIP call to eliminate the director’s 

discretion provisions or otherwise to 

revise them, the state may elect to 

overhaul the emission limitation 

entirely in order to address this concern. 

So long as the resulting revised SIP 

emission limitation is continuous and 

meets the requirements of sections 

110(k)(3), 110(l) and 193 and any other 

sections that are germane to the type of 

SIP provision at issue, the state has 

discretion to revise the provision as it 

determines best. 

c. Comments that the EPA’s having 

previously approved a SIP provision 

that authorizes the granting of variances 

or exemptions for SSM events through 

the exercise of director’s discretion 

renders the provision consistent with 

CAA requirements. 

Comment: Several state and industry 

commenters argued that the EPA’s past 

approval of a SIP provision with a 

director’s discretion feature 

automatically means that the exercise of 

that authority (whether to revise the 

applicable SIP emission limitations 

unilaterally or to grant ad hoc 

exemptions from SIP emission 

limitations) is valid under the CAA. One 

commenter asserted that because the 

EPA has previously approved such a 

provision, ‘‘that discretion is itself part 

of the SIP, and the exercise of discretion 

in no way modifies SIP requirements.’’ 

Another commenter argued that 

director’s discretion provisions in SIPs 

are per se valid because ‘‘[a]ll of the SIP 

provisions went through a public 

procedure at the time of their initial SIP 

approval.’’ 

Response: First, the EPA disagrees 

with the theory that a SIP provision that 

includes director’s discretion authority 

for state personnel to modify or grant 

exemptions from SIP emission 

limitations unilaterally is valid merely 

by virtue of the fact that the Agency 

previously approved it. By definition, 

when the EPA makes a finding of 

substantial inadequacy and issues a SIP 

call, that signifies that the Agency 

previously approved a SIP provision 

that does not meet CAA requirements, 

whether that deficiency existed at the 

time of the original approval or arose 

later. The EPA has explicit authority 

under section 110(k)(5) to require that a 

state eliminate or revise a SIP provision 

that the Agency previously approved, 

whenever the EPA finds an existing SIP 

provision to be substantially inadequate 

to meet CAA requirements. The fact that 

the EPA previously approved it does not 

mean that a deficient provision may 

remain in the SIP forever once the 

Agency determines that it is deficient. 

Second, the EPA disagrees that the 

fact that a SIP provision underwent 

public process at the time of its original 

creation by the state, or at the time of 

its approval by EPA as part of the SIP, 

means per se that the provision is 

consistent with CAA requirements. If an 

existing SIP provision is deficient 

because it in effect allows a state to 

revise existing SIP emission limitations 

without meeting the many explicit 

statutory requirements for a SIP 

revision, the fact that the revision that 

created the impermissible provision 

itself met the proper procedural 

requirements for a SIP revision is 

irrelevant. Even perfect compliance 

with the procedural requirements for a 

SIP revision at the time of its 

development by the state or its approval 

by the EPA does not override a 

substantive deficiency in the provision, 

nor does it preclude the later issuance 

of a SIP call to correct a substantive 

deficiency. 

Third, the EPA disagrees with the 

circular logic that because a deficient 

provision with director’s discretion 

currently exists in a SIP, it means that 

exercise of the director’s discretion to 

grant variances or outright exemptions 

to sources for emissions during SSM 

events is therefore consistent with CAA 

requirements for SIPs. An unbounded 

director’s discretion provision that 

authorizes an air agency to alter or 

eliminate the otherwise applicable SIP 

emission limitation functionally allows 

the state to revise the SIP emission 

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33920 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

265 690 F.3d 670 (5th Cir. 2012). 

266 Luminant Generation Co. v. EPA, 675 F.3d 917 

(5th Cir. 2012). Throughout this document, the EPA 

refers to this as the Luminant director’s discretion 

case, to distinguish it from another Luminant case 

cited in this document, Luminant Generation v. 

EPA, 714 F.3d 841 (5th Cir. 2013). 

267The EPA notes that the court in the Luminant 

director’s discretion case focused on the fact that 

the director’s discretion provision included the 

discretion to require more of sources, if there ‘‘are 

health effects concerns or the potential to exceed 

the [NAAQS],’’ and the court expressed that it did 

not understand why that requirement was not alone 

adequate to allay the Agency’s concerns. Luminant 

Generation Co. v. EPA, 675 F.3d 917, 929 n.11. The 

EPA’s primary concern, although not clearly 

articulated in the rulemaking record, was that at the 

time of acting on the SIP submission, there was no 

way for the Agency to know in advance what the 

state would require of any source in the first 

instance, let alone what additional things the state 

might require in situations where it unilaterally 

decided that more might be necessary in any given 

permit. 

268See ‘‘Approval and Promulgation of 

Implementation Plans; Texas; Revisions to the New 

Source Review (NSR) State Implementation Plan 

(SIP); Prevention of Significant Deterioration (PSD), 

Nonattainment NSR (NNSR) for the 1997 8-Hour 

Ozone Standard, NSR Reform, and a Standard 

Permit; Proposed rule,’’ 74 FR 48467 at 48476 

(September 23, 2009). 

269The term ‘‘replicable’’ was taken from EPA 

guidance concerning SIP provisions for attainment 

plans. As a ‘‘fundamental principle’’ for SIP 

provisions and permits, the EPA explained that the 

requirements imposed upon sources should be 

‘‘replicable’’; i.e., if they contain ‘‘procedures for 

changing the rule, interpreting the rule, or 

determining compliance with the rule, the 

procedures are sufficiently specific and 

nonsubjective so that two independent entities 

applying the same procedures would obtain the 

same result.’’ See General Preamble, 57 FR 13498 

at 13568 (April 16, 1992). The EPA’s intent in using 

this term, although not clearly expressed in the 

rulemaking record, has been to indicate that a 

properly constructed SIP provision with an 

appropriate degree of discretion and flexibility 

would contain sufficient specifications and limits 

on the exercise of that discretion such that the 

Agency could adequately evaluate the provision at 

the time of its submission. Absent sufficient limits 

on the discretion, the EPA could not properly 

evaluate how exercise of the discretion could affect 

compliance with CAA requirements. 

270 675 F.3d 917, 924 (5th Cir. 2012). 

limitation without meeting the 

requirements for a SIP revision. In 

particular, when such provisions 

authorize state personnel to grant 

outright exemptions from the SIP 

emission limitations, this is tantamount 

to a revision of the SIP emission 

limitation without complying with the 

procedural and substantive 

requirements of the CAA applicable to 

SIP revisions, including section 110(l), 

section 193 and any other substantive 

requirements applicable to the 

particular SIP emission limitation in 

question. 

d. Comments that director’s discretion 

provisions in SIPs are not prohibited by 

the CAA, based on recent judicial 

decisions. 

Comment: A number of state and 

industry commenters argued that 

nothing in the CAA explicitly prohibits 

states from having SIP provisions that 

include director’s discretion 

authorization for state personnel to 

modify or eliminate existing SIP 

provisions unilaterally, with or without 

any process or within any limiting 

parameters. In support of this 

proposition, the commenters cited 

recent decisions of the Fifth Circuit in 

two cases concerning the EPA’s 

disapproval of SIP submissions from the 

state of Texas. Commenters argued that 

the EPA’s interpretation of the CAA to 

prohibit director’s discretion provisions 

in SIPs is incorrect in light of the 

decision of the court in Texas v. EPA.265

According to commenters, the court’s 

decision establishes that no provision of 

the CAA bars such provisions. To 

support this contention, one commenter 

quoted the court’s decision extensively, 

highlighting the statement, ‘‘. . . the 

EPA has invoked the term ‘director 

discretion’ as if that term were an 

independent and authoritative standard, 

and has not linked the term to the 

language of the CAA.’’ Similarly, the 

commenters cited another decision of 

that court in the Luminant director’s 

discretion case.266 From that decision, 

commenters quoted the court’s 

statement that the ‘‘EPA had no legal 

basis to demand ‘replicable’ limitations 

on the Director’s discretion’’ and the 

succeeding sentence, ‘‘[n]ot once in its 

proposed or final disapproval, or in its 

argument before this court, has the EPA 

pointed to any applicable provision of 

the Act or its regulations that includes 

a ‘replicability’ standard.’’ These 

commenters did not, however, address 

the specific statutory provisions 

identified by the EPA in the February 

2013 proposal and the explanation that 

the Agency provided with respect to 

this issue. 

Response: The EPA disagrees that 

either decision cited by commenters 

stands for the definitive proposition 

they assert, i.e., that director’s discretion 

provisions in SIPs are not precluded by 

the CAA. In Luminant Generation Co. v. 

EPA (the Luminant director’s discretion 

case), the court evaluated the EPA’s 

disapproval of a SIP submission from 

the state of Texas that created SIP 

provisions to implement minor source 

permitting requirements. The EPA 

disapproved the SIP submission for 

several reasons, one of which was based 

on the director’s discretion provision 

prohibiting use of the standard permit 

for a pollution control project that the 

director determines raises health 

concerns or threatens the NAAQS. The 

EPA was concerned that this provision 

gave the director of the state agency 

discretion to make case-by-case 

decisions about what the specific permit 

terms would be for each source, without 

sufficient parameters or limitations on 

the exercise of that authority. Thus, the 

EPA reasoned that without any 

boundaries on the exercise of this 

authority for director’s discretion, it 

would be impossible for the Agency to 

know in advance (i.e., at the time of 

acting on the SIP submission) whether 

the state agency would only use that 

discretion in a way that would result in 

permits with terms consistent with 

meeting CAA requirements.267 As the 

EPA explained in the rulemaking at 

issue in the Luminant director’s 

discretion case, ‘‘[t]here are no 

replicable conditions in the PCP 

Standard Permit that specify how the 

[TCEQ] Director’s discretion is to be 

implemented’’ for the individual caseby-case determinations.268 In other 

words, the EPA was being asked to 

approve a SIP provision without 

knowing how the SIP provision would 

actually be implemented and thus 

without knowing whether the results 

would be consistent with applicable 

CAA requirements. 

As the commenters stated, the court 

in the Luminant director’s discretion 

case vacated the EPA’s disapproval of 

the SIP submission for several reasons, 

including the rejection of the Agency’s 

argument that it could not approve the 

SIP submission due to the director’s 

discretion feature of the SIP provisions 

and the resulting lack of 

‘‘replicability.’’ 269 The court found that 

the EPA ‘‘failed to identify a single 

provision of the Act that Texas’s 

program violated, let alone explain its 

reasons for reaching its conclusion.’’ 270

With respect to the director’s discretion 

issue, phrased in terms of 

‘‘replicability,’’ the court found that 

‘‘[n]ot once in its proposed or final 

disapproval, or in its argument before 

this court, has the EPA pointed to any 

applicable provision of the Act or its 

regulations that include a ‘replicability’ 

standard.’’ 

The EPA believes that the court’s 

decision in the Luminant director’s 

discretion case is distinguishable on 

several important grounds. Most 

importantly, the court rejected the 

EPA’s disapproval of the SIP submission 

because the Agency had not provided an 

adequate explanation of why the 

director’s discretion provision at issue 

was inconsistent with the requirements 

of the CAA for SIP provisions. The court 

emphasized the absence of any 

explanation in the administrative record 

for the proposed or final actions that 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33921 

271 Luminant Generation Co. v. EPA, 675 F.3d 

917, 929 n.11 (‘‘The provision at issues states: ‘‘This 

standard permit must not be used [if] the executive 

director determines there are health effects 

concerns or the potential to exceed a [NAAQS] . . . 

until those concerns are addressed to the 

satisfaction of the executive director.’’). 

272 Id., 690 F.3d 670, 680. 

273 Id., 690 F.3d 670, 682. 

274 Id., 690 F.3d 670, 681. 

275 Id. 

276 Id., 690 F.3d 670, 682. 

277 Id., 690 F.3d 670, 682. 

278 Id., 690 F.3d 670, 681. 

explained which specific provisions of 

the CAA preclude such a provision and 

why. In the February 2013 proposal and 

in this document, the EPA has 

identified and explained the specific 

CAA provisions that operate to preclude 

unbounded director’s discretion 

provisions in SIPs. 

Second, the court in the Luminant 

director’s discretion case based its 

decision in part on the view that the 

specific director’s discretion provision 

at issue in that case would always result 

in more stringent regulation of affected 

sources and always entail exercise of the 

discretion in a way that would protect 

the NAAQS.271 Although its view was 

not articulated clearly in the record, the 

EPA did not agree with that assessment 

because it was not possible to evaluate 

in advance how the director’s discretion 

authority would in fact be exercised. By 

contrast, the SIP provisions at issue in 

this action are not structured in such a 

way as to allow the exercise of 

discretion only to make the emission 

limitations more stringent. To the 

contrary, the director’s discretion 

provisions at issue in this action 

authorize the state agencies to excuse 

sources from compliance with the 

otherwise applicable SIP emission 

limitation during SSM events. Were the 

sources seeking these discretionary 

exemptions meeting the applicable SIP 

emission limitations, they would not 

need an exemption. It logically follows 

that sources are seeking these 

exemptions because their emissions 

during such events are higher than the 

otherwise applicable emission 

limitation allows. Unlike the specific 

director’s discretion provision at issue 

in the Luminant director’s discretion 

case, which the court said ‘‘can only 

serve to protect the NAAQS,’’ the 

exercise of the director’s discretion 

authority in the SIP provisions at issue 

in this action can operate to make the 

emission limitations less stringent and 

can thereby undermine attainment and 

maintenance of the NAAQS, protection 

of PSD increments, improvement of 

visibility and achievement of other CAA 

objectives. 

In the Texas decision, the court 

evaluated the EPA’s disapproval of 

another SIP submission from the state of 

Texas that pertained to requirements for 

the permitting program for minor 

sources. The EPA had disapproved the 

submission for several different reasons, 

including that the Agency believed the 

specific provisions at issue provided the 

state agency with too much director’s 

discretion authority to decide what, if 

any, monitoring, recordkeeping and 

reporting requirements should be 

imposed on any individual affected 

source in its permit. The EPA concluded 

that if at the time it was evaluating the 

SIP provision for approval it could not 

reasonably anticipate how the state 

agency would exercise the discretion 

authorized in the provision, this made 

the submission unapprovable ‘‘for being 

too vague and not replicable.’’ 272 The 

Texas court disagreed. The court 

concluded that the ‘‘degree of discretion 

conferred on the TCEQ director cannot 

sustain the EPA’s rejection of the MRR 

requirements’’ and that the EPA insisted 

on ‘‘some undefined limit on a 

director’s discretion . . . based on a 

standard that the CAA does not 

empower the EPA to enforce.’’ 273

The EPA believes that the decision of 

the court in Texas v. EPA is also 

distinguishable with respect to the issue 

of whether director’s discretion 

provisions are consistent with CAA 

requirements. First, the Texas court 

based its decision primarily on the 

conclusion that the EPA had failed to 

identify and explain the provisions of 

the CAA that (i) preclude approval of 

SIP provisions that include unbounded 

director’s discretion or (ii) impose a 

requirement for ‘‘replicability’’ in the 

exercise of director’s discretion. The 

Texas court emphasized that although 

the EPA disapproved the SIP 

submission for failure to meet CAA 

requirements, the court found that the 

EPA ‘‘is yet to explain why.’’ 274 The 

court further reasoned that ‘‘the EPA has 

invoked the term ‘director discretion’ as 

if that term were an independent and 

authoritative standard, and has not 

linked the term to language of the 

CAA.’’ 275 Later in the opinion the court 

explicitly emphasized that because it 

was reviewing the EPA’s 

decisionmaking process in the 

disapproval action, the court could not 

consider any basis for the disapproval 

that was not articulated by the EPA in 

the rulemaking record.276 The EPA is 

explaining its interpretation of the 

relevant CAA provisions in this action. 

Second, the Texas court also asserted 

its own conclusion that there is nothing 

in the CAA that pertains to director’s 

discretion in SIP provisions or to any 

limitations on the exercise of such 

discretion. As the court stated it: 

There is, in fact, no independent and 

authoritative standard in the CAA or its 

implementing regulations requiring that a 

state director’s discretion be cabined in the 

way that the EPA suggests. Therefore, the 

EPA’s insistence on some undefined limit on 

a director’s discretion is . . . based on a 

standard that the CAA does not empower the 

EPA to enforce. 

However, the court reached this 

conclusion based upon the 

administrative record before it and 

reiterated that it could not consider any 

basis for the disapproval not articulated 

by the EPA in the rulemaking record: 

‘‘We are reviewing an agency’s 

decisionmaking process, so the agency’s 

action must be upheld, if at all, on the 

basis articulated by the agency 

itself.’’ 277 Given the court’s conclusion 

that the EPA had failed to provide any 

explanation as to why the CAA 

precludes director’s discretion 

provisions in the challenged 

rulemaking, the EPA believes that the 

court did not have the opportunity to 

consider the Agency’s rationale that is 

provided in this action. In the February 

2013 proposal and in this document, the 

EPA is heeding the court’s 

admonishment to explain in the 

rulemaking record the statutory basis for 

the Agency’s interpretation of the CAA 

to prohibit director’s discretion 

provisions that are inadequately 

bounded. As explained in this action, 

SIP provisions that functionally 

authorize a state agency to amend 

existing SIP emission limitations 

applicable to a source unilaterally 

without a SIP revision are contrary to 

multiple specific provisions of the CAA 

that pertain to SIP revisions. 

Third, the Texas court emphasized 

that, notwithstanding the apparent 

flexibility that the director’s discretion 

provision provided to the state agency 

with respect to deciding on the level of 

monitoring, recordkeeping and 

reporting to be imposed on each source 

by permit, the state’s regulations 

explicitly prohibited relaxations of the 

level of control. The court gave weight 

to the explicit wording of the specific 

provision at issue in the case which 

provided that ‘‘[t]he existing level of 

control may not be lessened for any 

facility.’’ 278 The EPA does not agree 

that the specific requirements for 

monitoring, recordkeeping and 

reporting for a given source are 

unrelated to the level of control. In any 

event, the director’s discretion 

provisions of the type at issue in this 

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33922 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

action are not limited to those that 

would not ‘‘lessen’’ the level of control. 

To the contrary, the provisions at issue 

in this SIP call action authorize state 

agency personnel to grant outright 

exemptions from otherwise applicable 

SIP emission limitations during SSM 

events. Thus, the EPA concludes that 

this portion of the reasoning of the 

Texas decision would not apply to the 

current action. 

Finally, the Texas court viewed the 

fact that the EPA had previously 

approved similar director’s discretion 

provisions in Texas and in Georgia as 

evidence that such provisions must be 

consistent with CAA requirements. The 

EPA acknowledges that it has, from time 

to time, approved SIP submissions that 

it should not have, whether through 

failure to recognize an issue, through a 

misunderstanding of the facts, through a 

mistaken interpretation of the law or as 

a result of other such circumstances. 

Congress itself clearly recognized that 

the EPA may occasionally take incorrect 

action on SIP submissions, whether 

incorrect at the time of the action or as 

a result of later events. Section 110(k)(5) 

and section 110(k)(6) both provide the 

EPA with explicit authority to address 

past approvals of SIP submissions that 

turn out to have been mistakes, whether 

at the time of the original approval or as 

a result of later developments. The fact 

that the EPA has explicit authority to 

issue a SIP call establishes that Congress 

anticipated that the Agency may at some 

point approve a SIP provision that it 

should not have approved because the 

provision is substantially inadequate to 

meet CAA requirements. The EPA does 

not agree, however, that its approval of 

a comparable SIP provision at some 

time in the past negates the Agency’s 

authority to disapprove a current SIP 

submission that fails to meet applicable 

procedural or substantive requirements. 

A challenger of the disapproval can 

always argue that the inconsistency 

between the prior approval and the later 

disapproval is evidence that the EPA is 

being arbitrary and capricious in its 

interpretation of the statute—but at 

bottom the correct question is whether 

the Agency is correctly interpreting the 

CAA in the disapproval action currently 

being challenged. The fact that the EPA 

may have approved another SIP 

submission with a comparable defect in 

the past does not override the 

requirements of the CAA. 

Significantly, the commenters 

apparently make the same mistake as 

the EPA did in the rulemakings at issue 

in the cited court decisions, by not 

adequately addressing the relevant 

statutory provisions that apply to SIP 

provisions in general and apply to 

revisions of existing EPA-approved SIP 

provisions in particular. The 

commenters failed to consider the core 

problem with unbounded director’s 

discretion provisions (i.e., that such 

provisions allow for unilateral revision, 

relaxation or exemption from SIP 

emission limitations, without adequate 

evaluation by the EPA and the public). 

As a result, the commenters do not 

address the proper application of CAA 

provisions that govern SIP revisions and 

the rationale for requiring that such SIP 

revisions be reviewed by the EPA in 

accordance with the explicit 

requirements of sections 110(k)(3), 

110(l) and 193 and the other 

requirements germane to the SIP 

provision at issue (e.g., RACT-level 

controls for sources located in 

nonattainment areas). Indeed, the 

commenters did not acknowledge the 

inherent problem with director’s 

discretion provisions, which is that 

such provisions have the potential to 

undermine SIP emission limitations 

dramatically through ad hoc exemptions 

for excess emissions during SSM events. 

By allowing for exemptions for 

emissions during SSM events, these 

provisions also remove the incentives 

for sources to be properly designed, 

maintained and operated so that they 

will comply continuously with SIP 

emission limitations during all modes of 

source operation. 

The EPA notes that the commenters 

did not acknowledge or address the 

specific explanation that the Agency 

provided in the February 2013 proposal, 

including the EPA’s identification of the 

specific statutory provisions applicable 

to the revision of SIP provisions. 

Because these commenters did not 

address the EPA’s explanation of the 

CAA provisions that it interprets to 

preclude director’s discretion provisions 

in SIPs, the commenters have not 

provided substantive comment 

concerning the EPA’s interpretation of 

the CAA on this issue. The commenters 

did not dispute the EPA’s interpretation 

of the CAA on this particular point on 

statutory grounds. Rather, the 

commenters argued based on their own 

policy preferences for an approach to 

director’s discretion provisions that 

would allow sources to receive ad hoc 

exemptions for excess emissions during 

SSM events without the need for 

imposition of an appropriate alternative 

SIP emission limitation, for adequate 

public process for development of such 

an alternative SIP emission limitation or 

for oversight by the EPA of any revision 

to the applicable SIP emission 

limitations as required by the CAA. 

e. Comments opposed to the EPA’s 

approach on the premise that there is no 

‘‘director’s discretion’’ concern if the 

SIP provision creates a permit program 

through which state officials grant 

sources variances or exemptions from 

otherwise applicable SIP provisions. 

Comment: State commenters argued 

that they have imposed sufficient 

boundaries on the exercise of director’s 

discretion provisions in their SIPs, by 

virtue of the fact that they grant sources 

variances or exemptions from SIP 

emission limitations through a 

permitting program. Commenters stated 

that their permitting program provides a 

more structured process and an 

opportunity for public input into the 

decisions concerning variances or 

exemptions. Moreover, they argued that 

state law does provide preconditions to 

the granting of variances or exemptions 

and thus these are not granted 

automatically. Based upon these 

procedural requirements, the 

commenters contended that their 

exercise of director’s discretion is not 

‘‘unbounded’’ as the EPA suggested in 

the February 2013 proposal. 

Response: The EPA acknowledges 

that a permitting program can provide a 

more structured and consistent process 

than may be provided in a SIP for 

granting variances and exemptions from 

SIP emission limitations and related 

requirements and may provide more 

opportunity for public participation in 

those decisions. However, to the extent 

that the end result of this permitting 

process is that a given source is given 

a less stringent emission limitation than 

the otherwise applicable SIP emission 

limitation or is given an outright 

exemption from the SIP emission 

limitation, this result still functionally 

constitutes a revision of the SIP 

emission limitation without meeting the 

statutory requirements for a SIP 

revision. The EPA is not authorized to 

approve a program that in essence 

allows a SIP revision without 

compliance with the applicable 

statutory requirements in sections 

110(k)(3), 110(l) and 193 and any other 

provision that is germane to the 

particular SIP emission limitation at 

issue. 

The EPA emphasizes that air agencies 

always retain the ability to regulate 

sources more stringently than required 

by the provisions in its SIP. Section 116 

explicitly provides, with certain limited 

exceptions, that states retain the 

authority to regulate emissions from 

sources. Unless preempted from 

controlling a particular source, nothing 

precludes states from regulating sources 

more stringently than otherwise 

required to meet CAA requirements, so 

long as they meet CAA requirements. 

However, if there is an applicable 

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279See 1999 SSM Guidance at 3. 

280See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 75 FR 70888 at 

70892–93 (November 19, 2010) (proposed SIP call, 

inter alia, to rectify an enforcement discretion 

provision that in fact appeared to bar enforcement 

by the EPA or citizens if the state decided not to 

enforce). 

281See id. 

emission limitation in a SIP provision 

(or an EPA regulation promulgated 

pursuant to sections 111 or 112), section 

116 explicitly stipulates, ‘‘such State or 

political subdivision may not adopt or 

enforce any emission standard or 

emission limitation which is less 

stringent than the standard or limitation 

under such plan or limitation.’’ Thus, a 

state could elect to regulate a source 

more stringently than required by a 

specific SIP emission limitation (e.g., by 

imposing a more stringent numerical 

emission limitation on a particular 

source or by imposing additional 

recordkeeping, reporting and 

monitoring requirements in addition to 

those of the SIP provision), but the state 

cannot weaken or eliminate the SIP 

emission limitation (e.g., by granting 

exemptions from applicable SIP 

emission limitations for emissions 

during SSM events). If a state elects to 

alter an emission limitation in a SIP 

provision, the state must do so in 

accordance with the statutory 

provisions applicable to SIP revisions. 

Finally, the EPA notes, if a state elects 

to use a permitting process as a sourceby-source means of imposing more 

stringent emission limitations or 

additional requirements on sources, 

doing so can be an acceptable approach. 

So long as the underlying SIP provisions 

are adequate to provide the requisite 

level of control or requirements to 

assure enforceability, a state is free to 

use a permitting program to impose 

additional requirements above and 

beyond those provided in the SIP. 

D. Enforcement Discretion Provisions 

Pertaining to SSM Events 

1. What the EPA Proposed 

In the February 2013 proposal, the 

EPA explained in detail that it believes 

that the CAA allows states to adopt SIP 

provisions that impose reasonable limits 

upon the exercise of enforcement 

discretion by air agency personnel, so 

long as those provisions do not apply to 

the EPA or other parties. The EPA 

believes that its interpretation of the 

CAA with respect to enforcement 

discretion provisions applicable to 

emissions during SSM events has been 

clear in the SSM Policy. In the 1982 

SSM Guidance and the 1983 SSM 

Guidance, the EPA indicated that states 

could elect to adopt SIP provisions that 

include criteria that apply to the 

exercise of enforcement discretion by 

state personnel. In the 1999 SSM 

Guidance, the EPA emphasized that it 

would not approve such provisions if 

they would operate to impose the state’s 

enforcement discretion decisions upon 

the EPA or other parties because this 

would be inconsistent with 

requirements of title I of the CAA.279

The EPA acknowledged, however, that 

both the states and the Agency have 

failed to adhere to the CAA with respect 

to this issue in the past, and thus the 

need for this SIP call action to correct 

the existing deficiencies in SIPs. 

2. What Is Being Finalized in This 

Action 

In order to be clear about this 

important point on a going-forward 

basis, the EPA is reiterating that SIP 

provisions cannot contain enforcement 

discretion provisions that would bar 

enforcement by the EPA or citizens for 

any violation of SIP requirements if the 

state elects not to enforce. 

The EPA has previously issued a SIP 

call to a state specifically for purposes 

of clarifying an existing SIP provision to 

assure that regulated entities, regulators 

and courts will not misunderstand the 

correct interpretation of the 

provision.280 As the EPA stated in that 

action: 

. . . SIP provisions that give exclusive 

authority to a state to determine whether an 

enforcement action can be pursued for an 

exceedance of an emission limit are 

inconsistent with the CAA’s regulatory 

scheme. EPA and citizens, and any court in 

which they seek to file an enforcement claim, 

must retain the authority to independently 

evaluate whether a source’s exceedance of an 

emission limit warrants enforcement 

action.281

The EPA has explained in previous 

iterations of its SSM Policy that a 

fundamental principle of the CAA with 

respect to SIP provisions is that the 

provisions must be enforceable not only 

by the state but also by the EPA and 

others pursuant to the citizen suit 

authority of section 304. Accordingly, 

the EPA has long stated that SIP 

provisions cannot be structured such 

that a decision by the state not to 

enforce may bar enforcement by the 

EPA or other parties. 

3. Response to Comments 

The EPA received a small number of 

comments concerning the issue of 

ambiguous enforcement discretion 

provisions in SIPs. For clarity and ease 

of discussion, the EPA is responding to 

these comments, grouped by issue, in 

this section of this document. 

a. Comments that supported the 

clarification of ambiguous enforcement 

discretion provisions in general but 

opposed the EPA’s views with respect to 

specific SIP provisions. 

Comment: Environmental group 

commenters disagreed with the EPA’s 

proposed denial of the Petition with 

respect to specific enforcement 

discretion provisions in the SIPs of 

several states. The commenters 

contended that the SIP provisions are 

too ambiguous for courts to recognize 

that the exercise of enforcement 

discretion by state personnel did not 

preclude enforcement by the EPA or 

others. 

Response: The EPA disagrees with 

these comments. In the February 2013 

proposal, the EPA explained how it 

reads the specific enforcement 

discretion provisions in the SIPs of each 

of these states. The EPA explained its 

evaluation of these provisions in detail. 

In comments submitted on the February 

2013 proposal, the states in question 

agreed with the EPA’s reading of the 

provisions. Each state agreed that these 

provisions only applied to air agency 

personnel and not to the EPA or any 

other party. Thus, the EPA believes that 

there should be no dispute about the 

proper interpretation of these SIP 

provisions in any potential future 

enforcement action. 

b. Comments that opposed the EPA’s 

issuing SIP calls to obtain state agency 

clarification of ambiguous enforcement 

discretion provisions in SIPs. 

Comment: One commenter asserted 

that requiring states to correct an 

ambiguous ‘‘enforcement discretion’’ 

provision in its SIP in order to eliminate 

‘‘perceived ambiguity’’ is a ‘‘waste of 

resources.’’ Although agreeing that a 

state’s exercise of enforcement 

discretion cannot affect enforcement by 

the EPA or other parties under the 

citizen suit provision, the commenter 

believed that the existence of ambiguous 

provisions that could be misconstrued 

by a court to bar enforcement by the 

EPA or others if the state elects not to 

enforce is not a significant concern. 

Response: The EPA agrees with the 

commenter that a state’s legitimate 

exercise of enforcement discretion not 

to enforce in the event of violations of 

SIP provisions should have no bearing 

whatsoever on whether the EPA or 

others may seek to enforce for the same 

violations. However, the Agency 

disagrees with the commenter 

concerning whether some SIP 

provisions need to be clarified in order 

to assure that this principle is adhered 

to in practice in enforcement actions. 

For example, if on the face of an 

approved SIP provision the state 

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282See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision; Proposed rule,’’ 76 

FR 21639 (April 18, 2011). 

283See 40 CFR 70.1–70.12; 40 CFR 71.1–71.27. 

284See 40 CFR 70.6(g); 40 CFR 71.6(g). The EPA 

also notes that states are not required to adopt the 

‘‘emergency provision’’ contained in 40 CFR 70.6(g) 

into their state operating permit programs, and 

many states have chosen not to do so. See, e.g., 

‘‘Clean Air Act Full Approval of Partial Operating 

Permit Program; Allegheny County; Pennsylvania; 

Direct final rule,’’ 66 FR 55112 at 55113 (November 

1, 2001). 

285See 40 CFR 70.6(g)(1); 40 CFR 71.6(g)(1). 

286 40 CFR 70.6(g)(3); 40 CFR 71.6(g)(3). 

287See February 2013 proposal, 78 FR 12459 at 

12481–82. 288See SNPR, 79 FR 55919 at 55929–30. 

appears to have the unilateral authority 

to decide that a specific event is not a 

‘‘violation’’ or if it otherwise appears 

that if the state elects not to pursue 

enforcement for such violation then no 

other party may do so, then that SIP 

provision fails to meet fundamental 

legal requirements for enforcement 

under the CAA. If the SIP provision 

appears to provide that the decision of 

the state not to enforce for an 

exceedance of the SIP emission limit 

bars the EPA or others from bringing an 

enforcement action, then that is an 

impermissible imposition of the state’s 

enforcement discretion decisions on 

other parties. The EPA has previously 

issued a SIP call to resolve just such an 

ambiguity, and its authority to do so has 

been upheld.282 Given that the 

commenter agrees with the underlying 

principle that a state’s exercise of 

enforcement discretion should have no 

bearing on the exercise of enforcement 

authority of the EPA or citizens, the 

Agency presumes that the commenter 

would not in fact oppose a SIP revision 

to clarify that point. Moreover, the 

commenter would not be harmed by 

such a SIP revision and would have no 

basis upon which to challenge it. As the 

clarification of the ambiguous SIP 

provision should be in the interest of all 

involved, including the regulated 

entities, the regulators and the public, 

the EPA does not believe that resources 

used to eliminate such ambiguities 

would be wasted. 

E. Affirmative Defense Provisions in 

SIPs During Any Period of Operation 

As explained in detail in the SNPR, 

the EPA believes that the CAA prohibits 

affirmative defense provisions in SIPs. 

The EPA acknowledges that since the 

1999 SSM Guidance, the Agency had 

interpreted the CAA to allow narrowly 

tailored affirmative defense provisions. 

However, the EPA’s interpretation of the 

statute was based on arguments that 

have since been rejected by the DC 

Circuit in the NRDC v. EPA decision. 

The EPA received a substantial number 

of comments, both supportive and 

adverse, concerning the issue of 

affirmative defense provisions in SIPs. 

These comments and the EPA’s 

responses to them are discussed in 

section IV.D of this document. 

F. Relationship Between SIP Provisions 

and Title V Regulations 

As the EPA explained in the February 

2013 proposal, the SIP provisions 

identified in the Petition highlighted an 

area of potential ambiguity or conflict 

between the SSM Policy applicable to 

SIP provisions and the EPA’s 

regulations applicable to CAA title V 

operating permit provisions. The EPA 

has promulgated regulations in 40 CFR 

part 70 applicable to state operating 

permit programs and in 40 CFR part 71 

applicable to federal operating permit 

programs.283 Under each set of 

regulations, the EPA has provided that 

permits may contain, at the permitting 

authority’s discretion, an ‘‘emergency 

provision.’’ 284

The regulatory parameters applicable 

to such emergency provisions in 

operating permits are the same for state 

operating permit program regulations 

and the federal operating permit 

program regulations. The definition of 

emergency is identical in the regulations 

for each program.285

Thus, if there is an emergency event 

meeting the regulatory definition, then 

the EPA’s regulations for operating 

permit programs provide for an 

‘‘affirmative defense’’ to enforcement for 

noncompliance with technology-based 

standards during the emergency event, 

provided the source can demonstrate 

through specified forms of evidence that 

the event and the permittee’s actions 

during and after the event met a number 

of specific requirements.286

The Petitioner did not directly request 

that the EPA evaluate the existing 

regulatory provisions applicable to 

operating permits in 40 CFR part 70 and 

40 CFR part 71, and the EPA is not 

revising those provisions in this action. 

In its February 2013 proposal, the EPA 

explained that while it was proposing to 

allow narrowly drawn affirmative 

defense provisions for malfunctions in 

SIPs, SIP provisions that were modeled 

after the regulations in 40 CFR part 70 

and 40 CFR part 71 were still in conflict 

with the EPA’s interpretation of the 

CAA for SIP provisions and thus could 

not be allowed.287 However, as 

explained in the SNPR, the reasoning in 

the subsequent NRDC v. EPA court 

decision is that even narrowly defined 

affirmative defense provisions in SIPs 

are no longer consistent with the 

CAA.288 Accordingly, regardless of 

whether affirmative defense provisions 

in SIPs were defined more narrowly 

than were the provisions applicable to 

operating permits under 40 CFR part 70 

and 40 CFR part 71, they cannot be 

included in SIPs. For these reasons, the 

EPA has evaluated the specific SIP 

provisions identified in the Petition and 

is taking final action to find substantial 

inadequacy and to issue a SIP call for 

those SIP provisions that include 

features that are inappropriate for SIPs, 

regardless of whether those provisions 

contain terms found in other 

regulations. 

Additionally, we are not taking action 

in this rulemaking to alter the 

emergency provisions found in 40 CFR 

part 70 and 40 CFR part 71. Those 

regulations, which are applicable to title 

V operating permits, may only be 

changed through appropriate 

rulemaking to revise parts 70 and 71. 

Further, any existing permits that 

contain such emergency provisions may 

only be changed through established 

permitting procedures. The EPA is 

considering whether to make changes to 

40 CFR part 70 and 40 CFR part 71, and 

if so, how best to make those changes. 

In any such action, EPA would also 

intend to address the timing of any 

changes to existing title V operating 

permits. Until that time, as part of 

normal permitting process, the EPA 

encourages permitting authorities to 

consider the discretionary nature of the 

emergency provisions when 

determining whether to continue to 

include permit terms modeled on those 

provisions in operating permits that the 

permitting authorities are issuing in the 

first instance or renewing. 

G. Intended Effect of the EPA’s Action 

on the Petition 

As in the 2001 SSM Guidance, the 

EPA is endeavoring to be particularly 

clear about the intended effect of its 

final action on the Petition, of its 

clarifications and revisions to the SSM 

Policy and of its application of the 

updated SSM Policy to the specific 

existing SIP provisions discussed in 

section IX of this document. 

First, the EPA only intends its actions 

on the larger policy or legal issues 

raised by the Petitioner to inform the 

public of the EPA’s current views on the 

requirements of the CAA with respect to 

SIP provisions related to SSM events. 

Thus, for example, the EPA’s proposed 

grant of the Petitioner’s request that the 

EPA interpret the CAA to disallow all 

affirmative defense provisions is 

intended to convey that the EPA has 

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289The EPA also has other discretionary authority 

to address incorrect SIP provisions, such as the 

authority in CAA section 110(k)(6) for the EPA to 

correct errors in prior SIP approvals. The authority 

in CAA section 110(k)(5) and CAA section 110(k)(6) 

can sometimes overlap and offer alternative 

mechanisms to address problematic SIP provisions. 

In this instance, the EPA believes that the 

mechanism provided by CAA section 110(k)(5) is 

the better approach, because using the mechanism 

of the CAA section 110(k)(6) error correction would 

eliminate the affected emission limitations from the 

SIP potentially leaving no emission limitation in 

place, whereas the mechanism of the CAA section 

110(k)(5) SIP call will keep the provisions in place 

during the pendency of the state’s revision of the 

SIP and the EPA’s action on that revision. In the 

case of provisions that include impermissible 

automatic exemptions or discretionary exemptions, 

the EPA believes that retention of the existing SIP 

provision is preferable to the absence of the 

provision in the interim. 

290See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. 

Cir. 2000) (upholding the ‘‘NOX SIP Call’’ to states 

requiring revisions to previously approved SIPs 

with respect to ozone transport and section 

110(a)(2)(D)(i)(I)); ‘‘Action to Ensure Authority To 

Issue Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Finding of Substantial Inadequacy 

and SIP Call; Final rule,’’ 75 FR 77698 (December 

13, 2010) (the EPA issued a SIP call to 13 states 

because the endangerment finding for GHGs meant 

that these previously approved SIPs were 

substantially inadequate because they did not 

provide for the regulation of GHGs in the PSD 

permitting programs of these states as required by 

CAA section 110(a)(2)(C) and section 110(a)(2)(J)); 

‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 (April 

18, 2011) (the EPA issued a SIP call to rectify SIP 

provisions dating back to 1980). 

changed its views about such provisions 

and that its prior views expressed in the 

1999 SSM Guidance and related 

rulemakings on SIP submissions were 

incorrect. In this fashion, the EPA’s 

action on the Petition provides updated 

guidance relevant to future SIP actions. 

Second, the EPA only intends its 

actions on the specific existing SIP 

provisions identified in the Petition to 

be applicable to those provisions. The 

EPA does not intend its action on those 

specific provisions to alter the current 

status of any other existing SIP 

provisions relating to SSM events. The 

EPA must take later rulemaking actions, 

if necessary, in order to evaluate any 

comparable deficiencies in other 

existing SIP provisions that may be 

inconsistent with the requirements of 

the CAA. Again, however, the EPA’s 

actions on the Petition provide updated 

guidance on the types of SIP provisions 

that it believes would be consistent with 

CAA requirements in future rulemaking 

actions. 

Third, the EPA does not intend its 

action on the Petition to affect 

immediately any existing permit terms 

or conditions regarding excess 

emissions during SSM events that 

reflect previously approved SIP 

provisions. The EPA’s finding of 

substantial inadequacy and a SIP call for 

a given state provides the state time to 

revise its SIP in response to the SIP call 

through the necessary state and federal 

administrative process. Thereafter, any 

needed revisions to existing permits 

will be accomplished in the ordinary 

course as the state issues new permits 

or reviews and revises existing permits. 

The EPA does not intend the issuance 

of a SIP call to have automatic impacts 

on the terms of any existing permit. 

Fourth, the EPA does not intend its 

action on the Petition to alter the 

emergency defense provisions at 40 CFR 

70.6(g) and 40 CFR 71.6(g), i.e., the title 

V regulations pertaining to ‘‘emergency 

provisions’’ permissible in title V 

operating permits. The EPA’s 

regulations applicable to title V 

operating permits may only be changed 

through appropriate rulemaking 

procedures and existing permit terms 

may only be changed through 

established permitting processes. 

Fifth, the EPA does not intend its 

interpretations of the requirements of 

the CAA in this action on the Petition 

to be legally dispositive with respect to 

any particular current enforcement 

proceedings in which a violation of SIP 

emission limitations is alleged to have 

occurred. The EPA handles enforcement 

matters by assessing each situation, on 

a case-by-case basis, to determine the 

appropriate response and resolution. 

For purposes of alleged violations of SIP 

provisions, however, the terms of the 

applicable SIP provision will continue 

to govern until that provision is revised 

following the appropriate process for 

SIP revisions, as required by the CAA. 

Finally, the EPA does intend this final 

action, developed through notice and 

comment, to be the statement of its most 

current SSM Policy, reflecting the EPA’s 

interpretation of CAA requirements 

applicable to SIP provisions related to 

excess emissions during SSM events. In 

this regard, the EPA is adding to and 

clarifying its prior statements in the 

1999 SSM Guidance and making the 

specific changes to that guidance as 

discussed in this action. Thus, this final 

notice for this action will constitute the 

EPA’s SSM Policy on a going-forward 

basis. 

VIII. Legal Authority, Process and 

Timing for SIP Calls 

A. SIP Call Authority Under Section 

110(k)(5) 

1. General Statutory Authority 

The CAA provides a mechanism for 

the correction of flawed SIPs, under 

CAA section 110(k)(5), which provides 

that ‘‘[w]henever the Administrator 

finds that the applicable 

implementation plan for any area is 

substantially inadequate to attain or 

maintain the relevant national ambient 

air quality standards, to mitigate 

adequately the interstate pollutant 

transport described in section [176A] of 

this title or section [184] of this title, or 

to otherwise comply with any 

requirement of [the Act], the 

Administrator shall require the State to 

revise the plan as necessary to correct 

such inadequacies. The Administrator 

shall notify the State of the inadequacies 

and may establish reasonable deadlines 

(not to exceed 18 months after the date 

of such notice) for the submission of 

such plan revisions.’’ 

By its explicit terms, this provision 

authorizes the EPA to find that a state’s 

existing SIP is ‘‘substantially 

inadequate’’ to meet CAA requirements 

and, based on that finding, to ‘‘require 

the State to revise the [SIP] as necessary 

to correct such inadequacies.’’ This type 

of action is commonly referred to as a 

‘‘SIP call.’’ 289

Significantly, CAA section 110(k)(5) 

explicitly authorizes the EPA to issue a 

SIP call ‘‘whenever’’ the EPA makes a 

finding that the existing SIP is 

substantially inadequate, thus providing 

authority for the EPA to take action to 

correct existing inadequate SIP 

provisions even long after their initial 

approval, or even if the provisions only 

become inadequate due to subsequent 

events.290 The statutory provision is 

worded in the present tense, giving the 

EPA authority to rectify any deficiency 

in a SIP that currently exists, regardless 

of the fact that the EPA previously 

approved that particular provision in 

the SIP and regardless of when that 

approval occurred. 

It is also important to emphasize that 

CAA section 110(k)(5) expressly directs 

the EPA to take action if the SIP 

provision is substantially inadequate, 

not just for purposes of attainment or 

maintenance of the NAAQS but also for 

purposes of ‘‘any requirement’’ of the 

CAA. The EPA interprets this reference 

to ‘‘any requirement’’ of the CAA on its 

face to authorize reevaluation of an 

existing SIP provision for compliance 

with those statutory and regulatory 

requirements that are germane to the SIP 

provision at issue. Thus, for example, a 

SIP provision that is intended to be an 

‘‘emission limitation’’ for purposes of a 

nonattainment plan for purposes of the 

1997 PM2.5 NAAQS must meet various 

applicable statutory and regulatory 

requirements, including requirements of 

CAA section 110(a)(2)(A) such as 

enforceability, the definition of the term 

‘‘emission limitation’’ in CAA section 

302(k), the level of emissions control 

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291See, e.g., ‘‘Finding of Significant Contribution 

and Rulemaking for Certain States in the Ozone 

Transport Assessment Group Region for Purposes of 

Reducing Regional Transport of Ozone,’’ 63 FR 

57356 (October 27, 1998) (the EPA issued a SIP call 

to 23 states requiring them to rectify the failure to 

address interstate transport of pollutants as required 

by section 110(a)(2)(D); ‘‘Finding of Substantial 

Inadequacy of Implementation Plan; Call for Utah 

State Implementation Plan Revision,’’ 74 FR 21639 

(April 18, 2011) (the EPA issued a SIP call to one 

state requiring it to rectify several very specific SIP 

provisions). 

292See US Magnesium, LLC v. EPA, 690 F.3d 

1157 (10th Cir. 2012) (upholding the EPA’s 

interpretation of section 110(k)(5) to authorize a SIP 

call when the SIP provisions are inconsistent with 

CAA requirements). 

293The EPA notes that the GHG SIP call did not 

require ‘‘proof’’ that the failure of a state to address 

GHGs in a given PSD permit ‘‘caused’’ 

particularized environmental impacts; it was 

sufficient that the state’s SIP failed to meet the 

current fundamental legal requirements for 

regulation of GHGs in accordance with the CAA. 

See ‘‘Action to Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call; 

Final rule,’’ 75 FR 77698 (December 13, 2010). 

294See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 at 

21641 (April 18, 2011); see also US Magnesium, 

LLC v. EPA, 690 F.3d 1157, 1168 (10th Cir. 2012) 

(upholding the EPA’s interpretation of section 

110(k)(5) to authorize a SIP call when the state’s SIP 

provision worded so that state decisions whether a 

given excess emissions event constituted a violation 

interfered with enforcement by the EPA or citizens 

for such event). 

295Courts have on occasion interpreted SIP 

provisions to limit the EPA’s enforcement authority 

as a result of ambiguous SIP provisions. See, e.g., 

U.S. v. Ford Motor Co., 736 F.Supp. 1539 (W.D. Mo. 

1990) and U.S. v. General Motors Corp., 702 

F.Supp. 133 (N.D. Texas 1988) (the EPA could not 

pursue enforcement of SIP emission limitations 

required to constitute a ‘‘reasonably 

available control measure’’ in CAA 

section 172(c)(1) and the other 

applicable statutory requirements for 

the implementation of the 1997 PM2.5

NAAQS. Failure to meet any of those 

applicable requirements could 

constitute a substantial inadequacy 

suitable for a SIP call, depending upon 

the facts and circumstances. By contrast, 

that same SIP provision should not be 

expected to meet specifications of the 

CAA that are completely irrelevant for 

its intended purpose, such as the 

unrelated requirement of CAA section 

110(a)(2)(G) that the state have general 

legal authority comparable to CAA 

section 303 for emergencies. 

Use of the term ‘‘any requirement’’ in 

CAA section 110(k)(5) also reflects the 

fact that SIP provisions could be 

substantially inadequate for widely 

differing reasons. One provision might 

be substantially inadequate because it 

fails to prohibit emissions that 

contribute to violations of the NAAQS 

in downwind areas many states away. 

Another provision, or even the same 

provision, could be substantially 

inadequate because it also infringes on 

the legal right of members of the public 

who live adjacent to the source to 

enforce the SIP. Thus, the EPA has 

previously interpreted CAA section 

110(k)(5) to authorize a SIP call to 

rectify SIP inadequacies of various 

kinds, both broad and narrow in terms 

of the scope of the SIP revisions 

required.291 On its face, CAA section 

110(k)(5) authorizes the EPA to take 

action with respect to SIP provisions 

that are substantially inadequate to meet 

any CAA requirements, including 

requirements relevant to the proper 

treatment of excess emissions during 

SSM events. 

An important baseline question is 

whether a given deficiency renders the 

SIP provision ‘‘substantially 

inadequate.’’ The EPA notes that the 

term ‘‘substantially inadequate’’ is not 

defined in the CAA. Moreover, CAA 

section 110(k)(5) does not specify a 

particular form of analysis or 

methodology that the EPA must use to 

evaluate SIP provisions for substantial 

inadequacy. Thus, under Chevron step 

2, the EPA is authorized to interpret this 

provision reasonably, consistent with 

the provisions of the CAA. In addition, 

the EPA is authorized to exercise its 

discretion in applying this provision to 

determine whether a given SIP 

provision is substantially inadequate. 

To the extent that the term 

‘‘substantially inadequate’’ is 

ambiguous, the EPA believes that it is 

reasonable to interpret the term in light 

of the specific purposes for which the 

SIP provision at issue is required, and 

thus whether the provision meets the 

fundamental CAA requirements 

applicable to such a provision. 

The EPA does not interpret CAA 

section 110(k)(5) to require a showing 

that the effect of a SIP provision that is 

facially inconsistent with CAA 

requirements is causally connected to a 

particular adverse impact. For example, 

the plain language of CAA section 

110(k)(5) does not require direct causal 

evidence that excess emissions have 

occurred during a specific malfunction 

at a specific source and have literally 

caused a violation of the NAAQS in 

order to conclude that the SIP provision 

is substantially inadequate.292 A SIP 

provision that purports to exempt a 

source from compliance with applicable 

emission limitations during SSM events, 

contrary to the requirements of the CAA 

for continuous emission limitations, 

does not become legally permissible 

merely because there is not definitive 

evidence that any excess emissions have 

resulted from the exemption and have 

literally caused a specific NAAQS 

violation.293

Similarly, the EPA does not interpret 

CAA section 110(k)(5) to require direct 

causal evidence that a SIP provision that 

improperly undermines enforceability 

of the SIP has resulted in a specific 

failed enforcement attempt by any party. 

A SIP provision that has the practical 

effect of barring enforcement by the EPA 

or through a citizen suit, either because 

it would bar enforcement if an air 

agency elects to grant a discretionary 

exemption or to exercise its own 

enforcement discretion, is inconsistent 

with fundamental requirements of the 

CAA.294 Such a provision also does not 

become legally permissible merely 

because there is not definitive evidence 

that the state’s action literally 

undermined a specific attempted 

enforcement action by other parties. 

Indeed, the EPA notes that these 

impediments to effective enforcement 

likely have a chilling effect on potential 

enforcement in general. The possibility 

for effective enforcement of emission 

limitations in SIPs is itself an important 

principle of the CAA, as embodied in 

CAA sections 113 and 304. 

The EPA’s interpretation of CAA 

section 110(k)(5) is that the fundamental 

integrity of the CAA’s SIP process and 

structure are undermined if emission 

limitations relied upon to meet CAA 

requirements related to protection of 

public health and the environment can 

be violated without potential recourse. 

For example, the EPA does not believe 

that it is authorized to issue a SIP call 

to rectify an impermissible automatic 

exemption provision only after a 

violation of the NAAQS has occurred, or 

only if that NAAQS violation can be 

directly linked to the excess emissions 

that resulted from the impermissible 

automatic exemption by a particular 

source on a particular day. If the SIP 

contains a provision that is inconsistent 

with fundamental requirements of the 

CAA, that renders the SIP provision 

substantially inadequate. 

The EPA notes that CAA section 

110(k)(5) can also be an appropriate tool 

to address ambiguous SIP provisions 

that could be read by a court in a way 

that would violate the requirements of 

the CAA. For example, if an existing SIP 

provision concerning the state’s exercise 

of enforcement discretion is sufficiently 

ambiguous that it could be construed to 

preclude enforcement by the EPA or 

through a citizen suit if the state elects 

to deem a given SSM event not a 

violation, then that could render the 

provision substantially inadequate by 

interfering with the enforcement 

structure of the CAA.295 If a court could 

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where states had approved alternative emission 

limitations under procedures the EPA had approved 

in the SIP); Florida Power & Light Co. v. Costle, 650 

F.2d 579, 588 (5th Cir. 1981) (the EPA to be 

accorded no discretion in interpreting state law). 

The EPA does not agree with the holdings of these 

cases, but they illustrate why it is reasonable to 

eliminate any uncertainty about enforcement 

authority by requiring a state to remove or revise 

a SIP provision that could be read in a way 

inconsistent with the requirements of the CAA. 

296See US Magnesium, LLC v. EPA, 690 F.3d 

1157, 1170 (10th Cir. 2012) (upholding the EPA’s 

use of SIP call authority in order to clarify language 

in the SIP that could be read to violate the CAA, 

even if a court has not yet interpreted the language 

in that way). 

297The EPA notes that problematic ‘‘director’s 

discretion’’ provisions are not limited only to those 

that purport to authorize alternative emission 

limitations from those required in a SIP. Other 

problematic director’s discretion provisions could 

include those that purport to provide for 

discretionary changes to other substantive 

requirements of the SIP, such as applicability, 

operating requirements, recordkeeping 

requirements, monitoring requirements, test 

methods, and alternative compliance methods. 

construe the ambiguous SIP provision to 

bar enforcement, then the EPA believes 

that it may be appropriate to take action 

to eliminate that uncertainty by 

requiring the state to revise the 

ambiguous SIP provision. Under such 

circumstances, it may be appropriate for 

the EPA to issue a SIP call to assure that 

the SIP provisions are sufficiently clear 

and consistent with CAA requirements 

on their face.296

In this instance, the Petition raised 

questions concerning the adequacy of 

existing SIP provisions that pertain to 

the treatment of excess emissions during 

SSM events. The SIP provisions 

identified by the Petitioner generally fall 

into four major categories: (i) Automatic 

exemptions; (ii) exemptions as a result 

of director’s discretion; (iii) provisions 

that appear to bar enforcement by the 

EPA or through a citizen suit if the state 

decides not to enforce through exercise 

of enforcement discretion; and (iv) 

affirmative defense provisions that 

purport to limit or eliminate a court’s 

jurisdiction to assess liability and 

impose remedies for exceedances of SIP 

emission limitations. The EPA believes 

that each of these types of SIP 

deficiency potentially justifies a SIP call 

pursuant to CAA section 110(k)(5), if the 

Agency determines that a SIP call is the 

proper means to rectify an existing 

deficiency in a SIP. 

2. Substantial Inadequacy of Automatic 

Exemptions 

The EPA believes that SIP provisions 

that provide an automatic exemption 

from otherwise applicable emission 

limitations are substantially inadequate 

to meet CAA requirements. A typical 

SIP provision that includes an 

impermissible automatic exemption 

would provide that a source has to meet 

a specific emission limitation, except 

during startup, shutdown and 

malfunction, and by definition any 

excess emissions during such events 

would not be violations and thus there 

could be no enforcement based on those 

excess emissions. The EPA’s 

interpretation of CAA requirements for 

SIP provisions has been reiterated 

multiple times through the SSM Policy 

and actions on SIP submissions that 

pertain to this issue. The EPA’s 

longstanding view is that SIP provisions 

that include automatic exemptions for 

excess emissions during SSM events, 

such that the excess emissions during 

those events are not considered 

violations of the applicable emission 

limitations, do not meet CAA 

requirements. Such exemptions 

undermine the attainment and 

maintenance of the NAAQS, protection 

of PSD increments and improvement of 

visibility, and SIP provisions that 

include such exemptions fail to meet 

these and other fundamental 

requirements of the CAA. 

The EPA interprets CAA sections 

110(a)(2)(A) and 110(a)(2)(C) to require 

that SIPs contain ‘‘emission limitations’’ 

to meet CAA requirements. Pursuant to 

CAA section 302(k), those emission 

limitations must be ‘‘continuous.’’ 

Automatic exemptions from otherwise 

applicable emission limitations thus 

render those limits less than continuous 

as required by CAA sections 302(k), 

110(a)(2)(A) and 110(a)(2)(C), thereby 

inconsistent with a fundamental 

requirement of the CAA and thus 

substantially inadequate as 

contemplated in CAA section 110(k)(5). 

This inadequacy has far-reaching 

impacts. For example, air agencies rely 

on emission limitations in SIPs in order 

to provide for attainment and 

maintenance of the NAAQS. These 

emission limitations are often used by 

air agencies to meet various 

requirements including: (i) In the 

estimates of emissions for emissions 

inventories; (ii) in the determination of 

what level of emissions meets various 

statutory requirements such as 

‘‘reasonably available control measures’’ 

in nonattainment SIPs or ‘‘best available 

retrofit technology’’ in regional haze 

SIPs; and (iii) in critical modeling 

exercises such as attainment 

demonstration modeling for 

nonattainment areas or increment use 

for PSD permitting purposes. 

Because the NAAQS are not directly 

enforceable against individual sources, 

air agencies rely on the adoption and 

enforcement of these generic and 

specific emission limitations in SIPs in 

order to provide for attainment and 

maintenance of the NAAQS, protection 

of PSD increments and improvement of 

visibility, and to meet other CAA 

requirements. Automatic exemption 

provisions for excess emissions 

eliminate the possibility of enforcement 

for what would otherwise be clear 

violations of the relied-upon emission 

limitations and thus eliminate any 

opportunity to obtain injunctive relief 

that may be needed to protect the 

NAAQS or meet other CAA 

requirements. Likewise, the elimination 

of any possibility for penalties for what 

would otherwise be clear violations of 

the emission limitations, regardless of 

the conduct of the source, eliminates 

any opportunity for penalties to 

encourage appropriate design, operation 

and maintenance of sources and to 

encourage efforts by source operators to 

prevent and to minimize excess 

emissions in order to protect the 

NAAQS or to meet other CAA 

requirements. Removal of this monetary 

incentive to comply with the SIP 

reduces a source’s incentive to design, 

operate, and maintain its facility to meet 

emission limitations at all times. 

3. Substantial Inadequacy of Director’s 

Discretion Exemptions 

The EPA believes that SIP provisions 

that allow discretionary exemptions 

from otherwise applicable emission 

limitations are substantially inadequate 

to meet CAA requirements for the same 

reasons as automatic exemptions, but 

for additional reasons as well. A typical 

SIP provision that includes an 

impermissible ‘‘director’s discretion’’ 

component would purport to authorize 

air agency personnel to modify existing 

SIP requirements under certain 

conditions, e.g., to grant a variance from 

an otherwise applicable emission 

limitation if the source could not meet 

the requirement in certain 

circumstances.297 If such provisions are 

sufficiently specific, provide for 

sufficient public process and are 

sufficiently bounded, so that it is 

possible to anticipate at the time of the 

EPA’s approval of the SIP provision 

how that provision will actually be 

applied and the potential adverse 

impacts thereof, then such a provision 

might meet basic CAA requirements. In 

essence, if it is possible to anticipate 

and evaluate in advance how the 

exercise of enforcement discretion could 

impact compliance with other CAA 

requirements, then it may be possible to 

determine in advance that the 

preauthorized exercise of director’s 

discretion will not interfere with other 

CAA requirements, such as providing 

for attainment and maintenance of the 

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298Section 110(i) of the Act states that ‘‘no order, 

suspension, plan revision or other action modifying 

any requirement of an applicable implementation 

plan may be taken with respect to any stationary 

source by the State or by the Administrator’’ except 

in compliance with the CAA’s requirements for 

promulgation or revision of a plan, with limited 

exceptions. See, e.g., ‘‘Approval and Disapproval 

and Promulgation of Air Quality Implementation 

Plans; Colorado; Revisions to Regulation 1; Notice 

of proposed rulemaking,’’ 75 FR 42342 at 42344 

(July 21, 2010) (proposing to disapprove ‘‘director 

discretion’’ provisions as inconsistent with CAA 

requirements and noting that ‘‘[s]ection 110(i) 

specifically prohibits States, except in certain 

limited circumstances, from taking any action to 

modify any requirement of a SIP with respect to any 

stationary source, except through a SIP revision’’), 

finalized as proposed at 76 FR 4540 (January 26, 

2011); ‘‘Corrections to the California State 

Implementation Plan,’’ 69 FR 67062 at 67063 

(November 16, 2004) (noting that ‘‘a state-issued 

variance, though binding as a matter of State law, 

does not prevent EPA from enforcing the 

underlying SIP provisions unless and until EPA 

approves that variance as a SIP revision’’); 

Industrial Environmental Association v. Browner, 

No. 97–71117 at n.2 (9th Cir. May 26, 2000) (noting 

that the EPA has consistently treated individual 

variances granted under state variance provisions as 

‘‘modifications of the SIP requiring independent 

EPA approval’’). 

299See, e.g., EPA’s implementing regulations at 

40 CFR 51.104(d) (‘‘In order for a variance to be 

considered for approval as a revision to the [SIP], 

the State must submit it in accordance with the 

requirements of this section’’) and 51.105 

(‘‘Revisions of a plan, or any portion thereof, will 

not be considered part of an applicable plan until 

such revisions have been approved by the 

Administrator in accordance with this part.’’). 

300See, e.g., ‘‘Approval and Disapproval and 

Promulgation of Air Quality Implementation Plans; 

Colorado; Revisions to Regulation 1,’’ 76 FR 4540 

(January 26, 2011) (partial disapproval of SIP 

submission based on inclusion of impermissible 

director’s discretion provisions); ‘‘Correction of 

Implementation Plans; American Samoa, Arizona, 

California, Hawaii, and Nevada State 

Implementation Plans; Notice of proposed 

rulemaking,’’ 61 FR 38664 (July 25, 1996) (proposed 

SIP correction to remove, pursuant to CAA section 

110(k)(6), several variance provisions from 

American Samoa, Arizona, California, Hawaii, and 

Nevada SIPs), finalized at 62 FR 34641 (June 27, 

1997); ‘‘Approval and Promulgation of 

Implementation Plans; Corrections to the Arizona 

and Nevada State Implementation Plans; Direct 

final rule,’’ 74 FR 57051 (November 3, 2009) 

(rulemaking to remove, pursuant to CAA section 

110(k)(6), variance provisions from Arizona and 

Nevada SIPs). 

NAAQS. Most director’s discretion-type 

provisions cannot meet this basic test. 

Unless it is possible at the time of the 

approval of the SIP provision to 

anticipate and analyze the impacts of 

the potential exercise of the director’s 

discretion, such provisions functionally 

could allow de facto revisions of the 

approved emission limitations required 

by the SIP without complying with the 

process for SIP revisions required by the 

CAA. Sections 110(a)(1) and (2) of the 

CAA impose procedural requirements 

on states that seek to amend SIP 

provisions. The elements of CAA 

section 110(a)(2) and other sections of 

the CAA, depending upon the subject of 

the SIP provision at issue, impose 

substantive requirements that states 

must meet in a SIP revision. Section 

110(i) of the CAA prohibits modification 

of SIP requirements for stationary 

sources by either the state or the EPA, 

except through specified processes.298

Section 110(k) of the CAA imposes 

procedural and substantive 

requirements on the EPA for action 

upon any SIP revision. Sections 110(l) 

and 193 of the CAA both impose 

additional procedural and substantive 

requirements on the state and the EPA 

in the event of a SIP revision. Chief 

among these many requirements for a 

SIP revision would be the necessary 

demonstration that the SIP revision in 

question would not interfere with any 

requirement concerning attainment and 

reasonable further progress or ‘‘any 

other applicable requirement of’’ the 

CAA to meet the requirements of CAA 

section 110(l). 

Congress presumably imposed these 

many explicit requirements in order to 

assure that there is adequate public 

process at both the air agency and 

federal level for any SIP revision and to 

assure that any SIP revision meets the 

applicable substantive requirements of 

the CAA. Although no provision of the 

CAA explicitly addresses whether a 

‘‘director’s discretion’’ provision by that 

term is acceptable, the EPA interprets 

the statute to prohibit such provisions 

unless they would be consistent with 

the statutory and regulatory 

requirements that apply to SIP 

revisions.299 A SIP provision that 

purports to give broad and unbounded 

director’s discretion to alter the existing 

legal requirements of the SIP with 

respect to meeting emission limitations 

would be tantamount to allowing a 

revision of the SIP without meeting the 

applicable procedural and substantive 

requirements for such a SIP revision. 

The EPA’s approval of a SIP provision 

that purported to allow unilateral 

revisions of the emission limitations in 

the SIP by the state, without complying 

with the statutory requirements for a SIP 

revision, would itself be contrary to 

fundamental procedural and substantive 

requirements of the CAA. 

For this reason, the EPA has long 

discouraged the creation of new SIP 

provisions containing an impermissible 

director’s discretion feature and has also 

taken actions to remove existing SIP 

provisions that it had previously 

approved in error.300 In recent years, the 

EPA has also recommended that if an air 

agency elects to have SIP provisions that 

contain a director’s discretion feature, 

then to be consistent with CAA 

requirements the provisions must be 

structured so that any resulting 

variances or other deviations from the 

emission limitation or other SIP 

requirements have no federal law 

validity, unless and until the EPA 

specifically approves that exercise of the 

director’s discretion as a SIP revision. 

Barring such a later ratification by the 

EPA through a SIP revision, the exercise 

of director’s discretion is only valid for 

state (or tribal) law purposes and would 

have no bearing in the event of an action 

to enforce the provision of the SIP as it 

was originally approved by the EPA. 

The EPA’s evaluation of the specific 

SIP provisions of this type identified in 

the Petition indicates that none of them 

provides sufficient process or sufficient 

bounds on the exercise of director’s 

discretion to be permissible. Most on 

their face would allow potentially 

limitless exemptions from SIP 

requirements with potentially dramatic 

adverse impacts inconsistent with the 

objectives of the CAA. More 

importantly, however, each of the 

identified SIP provisions goes far 

beyond the limits of what might 

theoretically be a permissible director’s 

discretion provision, by authorizing 

state personnel to create case-by-case 

exemptions from the applicable 

emission limitations or other 

requirements of the SIP for excess 

emissions during SSM events. Given 

that the EPA interprets the CAA not to 

allow exemptions from SIP emission 

limitations for excess emissions during 

SSM events in the first instance, it 

follows that providing such exemptions 

through the ad hoc mechanism of a 

director’s discretion provision is also 

not permissible and compounds the 

problem. 

As with automatic exemptions for 

excess emissions during SSM events, a 

provision that allows discretionary 

exemptions would not meet the 

statutory requirements of CAA sections 

110(a)(2)(A) and 110(a)(2)(C) that 

require SIPs to contain ‘‘emission 

limitations’’ to meet CAA requirements. 

Pursuant to CAA section 302(k), those 

emission limitations must be 

‘‘continuous.’’ Discretionary exemptions 

from otherwise applicable emission 

limitations render those limits less than 

continuous, as is required by CAA 

sections 110(a)(2)(A) and 110(a)(2)(C), 

and thereby inconsistent with a 

fundamental requirement of the CAA 

and thus substantially inadequate as 

contemplated in section CAA 110(k)(5). 

Such exemptions undermine the 

objectives of the CAA such as protection 

of the NAAQS and PSD increments, and 

they fail to meet other fundamental 

requirements of the CAA. 

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301See, e.g., ‘‘Finding of Substantial Inadequacy 

of Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 75 FR 70888 at 

70892 (November 19, 2010). The SIP provision at 

issue provided that information concerning a 

malfunction ‘‘shall be used by the executive 

secretary in determining whether a violation has 

occurred and/or the need of further enforcement 

action.’’ This SIP language appeared to give the 

state official exclusive authority to determine 

whether excess emissions constitute a violation. 

302See 1999 SSM Guidance at 3. 

In addition, discretionary exemptions 

undermine effective enforcement of the 

SIP by the EPA or through a citizen suit, 

because often there may have been little 

or no public process concerning the 

exercise of director’s discretion to grant 

the exemptions, or easily accessible 

documentation of those exemptions, 

and thus even ascertaining the possible 

existence of such ad hoc exemptions 

will further burden parties who seek to 

evaluate whether a given source is in 

compliance or to pursue enforcement if 

it appears that the source is not. Where 

there is little or no public process 

concerning such ad hoc exemptions, or 

there is inadequate access to relevant 

documentation of those exemptions, 

enforcement by the EPA or through a 

citizen suit may be severely 

compromised. As explained in the 1999 

SSM Guidance, the EPA does not 

interpret the CAA to allow SIP 

provisions that would allow the exercise 

of director’s discretion concerning 

violations to bar enforcement by the 

EPA or through a citizen suit. The 

exercise of director’s discretion to 

exempt conduct that would otherwise 

constitute a violation of the SIP would 

interfere with effective enforcement of 

the SIP. Such provisions are 

inconsistent with and undermine the 

enforcement structure of the CAA 

provided in CAA sections 113 and 304, 

which provide independent authority to 

the EPA and citizens to enforce SIP 

provisions, including emission 

limitations. Thus, SIP provisions that 

allow discretionary exemptions from 

applicable SIP emission limitations 

through the exercise of director’s 

discretion are substantially inadequate 

to comply with CAA requirements as 

contemplated in CAA section 110(k)(5). 

4. Substantial Inadequacy of Improper 

Enforcement Discretion Provisions 

The EPA believes that SIP provisions 

that pertain to enforcement discretion 

but could be construed to bar 

enforcement by the EPA or through a 

citizen suit if the air agency declines to 

enforce are substantially inadequate to 

meet CAA requirements. A typical SIP 

provision that includes an 

impermissible enforcement discretion 

provision specifies certain parameters 

for when air agency personnel should 

pursue enforcement action, but is 

worded in such a way that the air 

director’s decision defines what 

constitutes a ‘‘violation’’ of the emission 

limitation for purposes of the SIP, i.e., 

by defining what constitutes a violation, 

the air agency’s own enforcement 

discretion decisions are imposed on the 

EPA or citizens.301

The EPA’s longstanding view is that 

SIP provisions cannot enable an air 

agency’s decision concerning whether 

or not to pursue enforcement to bar the 

ability of the EPA or the public to 

enforce applicable requirements.302

Such enforcement discretion provisions 

in a SIP would be inconsistent with the 

enforcement structure provided in the 

CAA. Specifically, the statute provides 

explicit independent enforcement 

authority to the EPA under CAA section 

113 and to citizens under CAA section 

304. Thus, the CAA contemplates that 

the EPA and citizens have authority to 

pursue enforcement for a violation even 

if the air agency elects not to do so. The 

EPA and citizens, and any court in 

which they seek to pursue an 

enforcement claim for violation of SIP 

requirements, must retain the authority 

to evaluate independently whether a 

source’s violation of an emission 

limitation warrants enforcement action. 

Potential for enforcement by the EPA or 

through a citizen suit provides an 

important safeguard in the event that 

the air agency lacks resources or ability 

to enforce violations and provides 

additional deterrence. Accordingly, a 

SIP provision that operates at the air 

agency’s election to eliminate the 

authority of the EPA or the public to 

pursue enforcement actions would 

undermine the enforcement structure of 

the CAA and would thus be 

substantially inadequate to meet 

fundamental requirements in CAA 

sections 113 and 304. 

5. Substantial Inadequacy of Affirmative 

Defense Provisions 

The EPA believes that SIP provisions 

that provide an affirmative defense for 

excess emissions during SSM events are 

substantially inadequate to meet CAA 

requirements. A typical SIP provision 

that includes an impermissible 

affirmative defense operates to limit or 

eliminate the jurisdiction of federal 

courts to assess liability or to impose 

remedies in an enforcement proceeding 

for exceedances of SIP emission 

limitations. Some affirmative defense 

provisions apply broadly, whereas 

others are components of specific 

emission limitations. Some provisions 

use the explicit term ‘‘affirmative 

defense,’’ whereas others are structured 

as such provisions but do not use this 

specific terminology. All of these 

provisions, however, share the same 

legal deficiency in that they purport to 

alter the statutory jurisdiction of federal 

courts under section 113 and section 

304 to determine liability and to impose 

remedies for violations of CAA 

requirements, including SIP emission 

limitations. Accordingly, an affirmative 

defense provision that operates to limit 

or to eliminate the jurisdiction of the 

federal courts would undermine the 

enforcement structure of the CAA and 

would thus be substantially inadequate 

to meet fundamental requirements in 

CAA sections 113 and 304. By 

undermining enforcement, such 

provisions also are inconsistent with 

fundamental CAA requirements such as 

attainment and maintenance of the 

NAAQS, protection of PSD increments 

and improvement of visibility. 

B. SIP Call Process Under Section 

110(k)(5) 

Section 110(k)(5) of the CAA provides 

the EPA with authority to determine 

whether a SIP is substantially 

inadequate to attain or maintain the 

NAAQS or otherwise comply with any 

requirement of the CAA. Where the EPA 

makes such a determination, the EPA 

then has a duty to issue a SIP call. 

In addition to providing general 

authority for a SIP call, CAA section 

110(k)(5) sets forth the process and 

timing for such an action. First, the 

statute requires the EPA to notify the 

state of the final finding of substantial 

inadequacy. The EPA typically provides 

notice to states by a letter from the 

Assistant Administrator for the Office of 

Air and Radiation to the appropriate 

state officials in addition to publication 

of the final action in the Federal 

Register. 

Second, the statute requires the EPA 

to establish ‘‘reasonable deadlines (not 

to exceed 18 months after the date of 

such notice)’’ for states to submit 

corrective SIP submissions to eliminate 

the inadequacy in response to the SIP 

call. The EPA proposes and takes 

comment on the schedule for the 

submission of corrective SIP revisions 

in order to ascertain the appropriate 

timeframe, depending on the nature of 

the SIP inadequacy. 

Third, the statute requires that any 

finding of substantial inadequacy and 

notice to the state be made public. By 

undertaking a notice-and-comment 

rulemaking, the EPA assures that the air 

agencies, affected sources and members 

of the public all are adequately 

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33930 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

303CAA section 110(c)(1)(A). 

304The 2-year deadline does not necessarily 

apply to FIPs following disapproval of a tribal 

implementation plan. 

305See ‘‘Selection of Sequence of Mandatory 

Sanctions for Findings Made Pursuant to Section 

179 of the Clean Air Act,’’ 59 FR 39832 (August 4, 

1994), codified at 40 CFR 52.31. 

informed and afforded the opportunity 

to participate in the process. Through 

the February 2013 proposal, the SNPR 

and this final notice, the EPA is 

providing a full evaluation of the issues 

raised by the Petition and has used this 

process as a means of giving clear and 

up-to-date guidance concerning SIP 

provisions relevant to the treatment of 

excess emissions during SSM events 

that is consistent with CAA 

requirements. 

If the state fails to submit the 

corrective SIP revision by the deadline 

established in this final notice, CAA 

section 110(c) authorizes the EPA to 

‘‘find[ ] that [the] State has failed to 

make a required submission.’’ 303 Once 

the EPA makes such a finding of failure 

to submit, CAA section 110(c)(1) 

requires the EPA to ‘‘promulgate a 

Federal implementation plan at any 

time within 2 years after the [finding] 

. . . unless the State corrects the 

deficiency, and [the EPA] approves the 

plan or plan revision, before [the EPA] 

promulgates such [FIP].’’ Thus, if the 

EPA finds that the air agency failed to 

submit a complete SIP revision that 

responds to this SIP call, or if the EPA 

disapproves such SIP revision, then the 

EPA will have an obligation under CAA 

section 110(c)(1) to promulgate a FIP no 

later than 2 years from the date of the 

finding or the disapproval, if the 

deficiency has not been corrected before 

that time.304

The finding of failure to submit a 

revision in response to a SIP call or the 

EPA’s disapproval of that corrective SIP 

revision can also trigger sanctions under 

CAA section 179. If a state fails to 

submit a complete SIP revision that 

responds to a SIP call, CAA section 

179(a) provides for the EPA to issue a 

finding of state failure. Such a finding 

starts mandatory 18-month and 24- 

month sanctions clocks. The two 

sanctions that apply under CAA section 

179(b) are the 2-to-1 emission offset 

requirement for all new and modified 

major sources subject to the 

nonattainment NSR program and 

restrictions on highway funding. 

However, section 179 leaves it to the 

EPA to decide the order in which these 

sanctions apply. The EPA issued an 

order of sanctions rule in 1994 but did 

not specify the order of sanctions where 

a state fails to submit or submits a 

deficient SIP revision in response to a 

SIP call.305 In the February 2013 

proposal, as the EPA has done in other 

SIP calls, the EPA proposed that the 2- 

to-1 emission offset requirement will 

apply for all new sources subject to the 

nonattainment NSR program beginning 

18 months following such finding or 

disapproval unless the state corrects the 

deficiency before that date. The EPA 

proposed that the highway funding 

restrictions sanction will also apply 

beginning 24 months following such 

finding or disapproval unless the state 

corrects the deficiency before that date. 

Finally, the EPA proposed that the 

provisions in 40 CFR 52.31 regarding 

staying the sanctions clock and 

deferring the imposition of sanctions 

would also apply. In this action, the 

EPA is finalizing the order of sanctions 

as proposed in the February 2013 

proposal and finalizing its decision 

concerning the application of 40 CFR 

52.31. 

Mandatory sanctions under CAA 

section 179 generally apply only in 

nonattainment areas. By its definition, 

the emission offset sanction applies 

only in areas required to have a part D 

NSR program, i.e., areas designated 

nonattainment. Section 179(b)(1) 

expressly limits the highway funding 

restriction to nonattainment areas. 

Additionally, the EPA interprets the 

section 179 sanctions to apply only in 

the area or areas of the state that are 

subject to or required to have in place 

the deficient SIP and for the pollutant 

or pollutants that the specific SIP 

element addresses. For example, if the 

deficient provision applies statewide 

and applies for all NAAQS pollutants, 

then the mandatory sanctions would 

apply in all areas designated 

nonattainment for any NAAQS within 

the state. In this case, the EPA will 

evaluate the geographic scope of 

potential sanctions at the time it makes 

a determination that the air agency has 

failed to make a complete SIP 

submission in response to this SIP call, 

or at the time it disapproves such a SIP 

submission. The appropriate geographic 

scope for sanctions may vary depending 

upon the SIP provisions at issue. 

C. SIP Call Timing Under Section 

110(k)(5) 

When the EPA finalizes a finding of 

substantial inadequacy and a SIP call for 

any state, CAA section 110(k)(5) 

requires the EPA to establish a SIP 

submission deadline by which the state 

must make a SIP submission to rectify 

the identified deficiency. Pursuant to 

CAA section 110(k)(5), the EPA has 

authority to set a SIP submission 

deadline that is up to 18 months from 

the date of the final finding of 

inadequacy. 

The EPA proposed to establish a date 

18 months from the date of 

promulgation of the final finding for the 

state to respond to the SIP call. After 

further evaluation of this issue and 

consideration of comments on the 

proposed SIP call, the EPA has decided 

to finalize the proposed schedule. Thus, 

the SIP submission deadline for each of 

the states subject to this SIP call will be 

November 22, 2016. Thereafter, the EPA 

will review the adequacy of that new 

SIP submission in accordance with the 

CAA requirements of sections 110(a), 

110(k), 110(l) and 193, including the 

EPA’s interpretation of the CAA 

reflected in the SSM Policy as clarified 

and updated through this rulemaking. 

The EPA is providing the maximum 

time permissible under the CAA for a 

state to respond to a SIP call. The EPA 

believes that it is appropriate to provide 

states with the full 18 months 

authorized under CAA section 110(k)(5) 

in order to allow states sufficient time 

to make SIP revisions following their 

own SIP development process. During 

this time, the EPA recognizes, an 

affected state will need to revise its state 

regulations, provide for public input, 

process the SIP revision through the 

state’s own procedures and submit the 

SIP revision to the EPA. Such a 

schedule will allow for the necessary 

SIP development process to correct the 

deficiencies, yet still achieve the 

necessary SIP improvements as 

expeditiously as practicable. There may 

be exceptions, particularly in states that 

have adopted especially timeconsuming procedures for adoption and 

submission of SIP revisions. The EPA 

acknowledges that the longstanding 

existence of many of the provisions at 

issue, such as automatic exemptions for 

SSM events, may have resulted in 

undue reliance on them as a compliance 

mechanism by some sources. As a 

result, development of appropriate SIP 

revisions may entail reexamination of 

the applicable emission limitations 

themselves, and this process may 

require the maximum time allowed by 

the CAA. For example, if circumstances 

do not allow the state to develop 

alternative emission limitations within 

that time, the state may find it necessary 

to remove the automatic exemptions in 

an initial responsive SIP revision and 

establish alternative emission 

limitations in a later SIP revision. 

Nevertheless, the EPA encourages the 

affected states to make the necessary 

revisions in as timely a fashion as 

possible and encourages the states to 

work with the respective EPA Regional 

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306See Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 

1997) (SIP call remanded and vacated because, inter 

alia, the EPA had issued a SIP call that required 

states to adopt a particular control measure for 

mobile sources). 

307Notwithstanding the latitude states have in 

developing SIP provisions, the EPA is required to 

assure that states meet the basic legal criteria for 

SIPs. See Michigan v. EPA, 213 F.3d 663, 686 (D.C. 

Cir. 2000) (upholding NOx SIP call because, inter 

alia, the EPA was requiring states to meet basic 

legal requirement that SIPs comply with section 

110(a)(2)(D), not dictating the adoption of a 

particular control measure). 

Office as they develop the SIP revisions. 

The EPA intends to review and act upon 

the SIP submissions as promptly as 

resources will allow, in order to correct 

these deficiencies in as timely a manner 

as possible. Recent experience with 

several states that elected to correct the 

deficiencies identified in the February 

2013 proposal in advance of this final 

action suggests that these SIP revisions 

can be addressed efficiently through 

cooperation between the air agencies 

and the EPA. 

The EPA notes that the SIP call for 

affected states finalized in this action is 

narrow and applies only to the specific 

SIP provisions determined to be 

inconsistent with the requirements of 

the CAA. To the extent that a state is 

concerned that elimination of a 

particular aspect of an existing emission 

limitation, such as an impermissible 

exemption, will render that emission 

limitation more stringent than the state 

originally intended and more stringent 

than needed to meet the CAA 

requirements it was intended to address, 

the EPA anticipates that the state will 

revise the emission limitation 

accordingly, but without the 

impermissible exemption or other 

feature that necessitated the SIP call. 

With adequate justification, this SIP 

revision might, e.g., replace a numerical 

emission limitation with an alternative 

control method (design, equipment, 

work practice or operational standard) 

as a component of the emission 

limitation applicable during startup 

and/or shutdown periods. 

The EPA emphasizes that its authority 

under CAA section 110(k)(5) does not 

extend to requiring a state to adopt a 

particular control measure in its SIP 

revision in response to the SIP call. 

Under principles of cooperative 

federalism, the CAA vests air agencies 

with substantial discretion in how to 

develop SIP provisions, so long as the 

provisions meet the legal requirements 

and objectives of the CAA.306 Thus, the 

inclusion of a SIP call to a state in this 

action should not be misconstrued as a 

directive to the state to adopt a 

particular control measure. The EPA is 

merely requiring that affected states 

make SIP revisions to remove or revise 

existing SIP provisions that fail to 

comply with fundamental requirements 

of the CAA. The states retain discretion 

to remove or revise those provisions as 

they determine best, so long as they 

bring their SIPs into compliance with 

the requirements of the CAA.307

Through this rulemaking action, the 

EPA is reiterating, clarifying and 

updating its interpretations of the CAA 

with respect to SIP provisions that 

apply to emissions from sources during 

SSM events in order to provide states 

with comprehensive guidance 

concerning such provisions. 

Finally, the EPA notes that under 

section 553 of the Administrative 

Procedure Act, 5 U.S.C. 553(d), an 

agency rule should not be ‘‘effective’’ 

less than 30 days after its publication, 

unless certain exceptions apply 

including an exception for ‘‘good 

cause.’’ In this action, the EPA is 

simultaneously taking final action on 

the Petition, issuing its revised SSM 

Policy guidance to states for SIP 

provisions applicable to emissions 

during SSM events and issuing a SIP 

call to 36 states for specific existing SIP 

provisions that it has determined to be 

substantially inadequate to meet CAA 

requirements. Section 110(k)(5) 

provides that the EPA must notify states 

affected by a SIP call and must establish 

a deadline for SIP submissions by 

affected states in response to a SIP call 

not to exceed 18 months after the date 

of such notification. The EPA is 

notifying affected states of this final SIP 

call action on May 22, 2015. Thus, 

regardless of the effective date of this 

action, the deadline for submission of 

SIP revisions to address the specific SIP 

provisions that the EPA has identified 

as substantially inadequate will be 

November 22, 2016. In addition, the 

EPA concludes that there is good cause 

for this final action to be effective on 

May 22, 2015, the day upon which the 

EPA provided notice to the states, 

because any delayed effective date 

would be unnecessary given that CAA 

section 110(k)(5) explicitly provides that 

the deadline for submission of the 

required SIP revisions runs from the 

date of notification to the affected states, 

not from some other date, and shall not 

exceed 18 months. 

D. Response to Comments Concerning 

SIP Call Authority, Process and Timing 

The EPA received a wide range of 

comments on the February 2013 

proposal and the SNPR questioning the 

scope of the Agency’s authority to issue 

this SIP call action under section 

110(k)(5), the process followed by EPA 

for this SIP call action, or the timing 

that the EPA provided for response to 

this SIP call action. Although there were 

numerous comments on these general 

topics, the majority of the comments 

raised the same questions and made 

similar arguments (e.g., that the EPA has 

an obligation under section 110(k)(5) to 

‘‘prove’’ not only that an exemption for 

SSM events in a SIP emission limitation 

is contrary to the explicit legal 

requirements of the CAA but also that 

this illegal exemption ‘‘caused’’ a 

specific violation of the NAAQS at a 

particular monitor on a particular day). 

For clarity and ease of discussion, the 

EPA is responding to these overarching 

comments, grouped by topic, in this 

section of this document. 

1. Comments that section 110(k)(5) 

requires the EPA to ‘‘prove causation’’ 

to have authority to issue a SIP call. 

Comment: Numerous state and 

industry commenters argued that the 

EPA has no authority to issue a SIP call 

with respect to a given SIP provision 

unless and until the Agency first proves 

definitively that the provision has 

caused a specific harm, such as a 

specific violation of the NAAQS in a 

specific area. These commenters 

generally focused upon the ‘‘attainment 

and maintenance’’ clause of section 

110(k)(5) and did not address the 

‘‘comply with any requirement of’’ the 

CAA clause. 

For example, many industry 

commenters opposed the EPA’s 

interpretation of section 110(k)(5) on the 

grounds that the Agency had failed to 

provide a specific technical analysis 

‘‘proving’’ how the SIP provisions failed 

to provide for attainment or 

maintenance of the NAAQS. For areas 

attaining the NAAQS, commenters 

asserted that there should be a 

presumption that existing SIP 

provisions are adequate if they have 

resulted in attainment of the NAAQS. 

For areas violating the NAAQS, 

commenters claimed that the EPA is 

required to conduct a technical analysis 

to determine if there is a ‘‘nexus 

between the provisions that are the 

subject of its SSM SIP Call Proposal and 

the specific pollutants for which 

attainment has not been achieved.’’ 

Other industry commenters argued that 

in order to have authority to issue a SIP 

call, the EPA must prove through a 

technical analysis that a given SIP 

provision ‘‘is’’ substantially inadequate, 

not that it ‘‘may be.’’ These commenters 

claimed that the EPA has not shown 

how any of the SIP provisions at issue 

in this action ‘‘threatens the NAAQS, 

fails to sufficiently mitigate interstate 

transport, or comply with any other 

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308See February 2013 proposal, 78 FR 12459 at 

12483–89 (February 22, 2013); SNPR, 79 FR 55919 

at 55935. 

309See ‘‘Finding of Significant Contribution and 

Rulemaking for Certain States in the Ozone 

Transport Assessment Group Region for Purposes of 

Reducing Regional Transport of Ozone,’’ 63 FR 

57356 (October 27, 1998). 

310See, e.g., ‘‘Finding of Substantial Inadequacy 

of Implementation Plan; Call for Iowa State 

Implementation Plan Revision,’’ 76 FR 41424 (July 

14, 2011) (SIP call to Iowa due to PM2.5 NAAQS 

violations in Muscatine area); ‘‘Approval and 

Promulgation of State Implementation Plans; Call 

for Sulfur Dioxide SIP Revisions for Billings/Laurel, 

MT [Montana],’’ 58 FR 41430 (August 4, 1993) (SIP 

call to Montana due to modeled violations of the 

SO2 NAAQS). 

311See ‘‘Action to Ensure Authority to Issue 

Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions; Finding of Substantial Inadequacy 

and SIP Call,’’ 75 FR 77698 (December 13, 2010). 

The EPA notes that a number of petitioners 

challenged this SIP call on various grounds, but the 

court ultimately determined that they did not have 

standing. Texas v. EPA, 726 F.3d 180 (D.C. Cir. 

2013). 

CAA requirement.’’ Many industry 

commenters questioned whether exempt 

emissions during SSM events pose any 

attainment-related concerns, making 

assertions such as: ‘‘[i]nfrequent 

malfunction, startup and shutdown 

events at a limited number of stationary 

sources are likely to have no effect on 

attainment.’’ 

Many state commenters made similar 

arguments, based on the specific 

attainment or nonattainment status of 

areas in their respective states. For 

example, one state commenter claimed 

that the EPA failed to make required 

technical findings that the specific 

provisions the Agency identified as 

legally deficient ‘‘are so substantially 

inadequate that the State cannot attain 

or maintain the NAAQS or otherwise 

comply with the CAA.’’ The commenter 

claimed that the EPA should have 

evaluated all of the state’s emission 

limitations, emission inventories and 

attainment and maintenance 

demonstrations for the NAAQS, rather 

than focusing on these individual SIP 

provisions. In order to demonstrate 

substantial inadequacy under section 

110(k)(5), the state claimed, the EPA 

‘‘must point to facts’’ that show ‘‘the 

State cannot attain or maintain the 

NAAQS or comply with the CAA’’ if the 

provisions remain in the SIP. Other 

states made comparable arguments with 

respect to the SIP provisions at issue in 

their SIPs and claimed that the EPA is 

required to establish how the provisions 

caused or contributed to a specific 

violation of a NAAQS in those states. 

By contrast, many environmental 

group commenters and individual 

commenters took the opposite position 

concerning what is necessary to support 

a finding of substantial inadequacy 

under section 110(k)(5). These 

commenters argued that that the EPA 

may issue a SIP call not only where it 

determines that a SIP is substantially 

inadequate to attain or maintain a 

NAAQS with a technical analysis but 

also where the Agency determines that 

the SIP is substantially inadequate ‘‘to 

comply with any requirement of the 

Act.’’ The commenters noted that the 

EPA identified specific statutory 

provisions of the CAA with which the 

SIP provisions at issue in this action do 

not comply. For example, these 

commenters agreed with the EPA’s view 

that SIP provisions with automatic or 

discretionary exemptions for emissions 

during SSM events do not meet the 

fundamental requirements that SIP 

emission limitations must apply to limit 

emissions from sources on a continuous 

basis, in accordance with sections 

110(a)(2)(A), 110(a)(2)(C) and 302(k). In 

addition to arguing that failure to meet 

legal requirements of the CAA is a 

sufficient basis for a SIP call, some 

commenters provided additional 

support to illustrate how SIP provisions 

with deficiencies such as automatic or 

discretionary exemptions for emissions 

during SSM events result in large 

amounts of excess emissions that would 

otherwise be violations of the applicable 

emission limitations. 

Response: The EPA disagrees with the 

argument that it has no authority to 

issue a SIP call under section 110(k)(5) 

unless the Agency provides a factual or 

technical analysis to demonstrate that 

the SIP provision at issue caused a 

specific environmental harm or 

undermined a specific enforcement 

case. As explained in the February 2013 

proposal, in the SNPR and in this final 

action, the EPA interprets its authority 

under section 110(k)(5) to authorize a 

SIP call for not only provisions that are 

substantially inadequate for purposes of 

attainment or maintenance of the 

NAAQS but also those provisions that 

are substantially inadequate for 

purposes of ‘‘any requirement’’ of the 

CAA.308 To be clear, the EPA can also 

issue a SIP call whenever it determines 

that a SIP as a whole, or a specific SIP 

provision, is deficient because the SIP 

did not prevent specific violations of a 

NAAQS, at a specific monitor, on a 

specific date. However, that is not the 

extent of the EPA’s authority under 

section 110(k)(5). 

On its face, section 110(k)(5) does not 

impose any explicit requirements with 

respect to what specific form of factual 

or analytical basis is necessary for 

issuance of a SIP call. Because the 

statute does not prescribe the basis on 

which the EPA is to make a finding of 

substantial inadequacy, the Agency 

interprets section 110(k)(5) to provide 

discretion concerning what is necessary 

to support such a finding. The Agency 

believes that the nature of the factual or 

analytical basis necessary to make a 

finding is dependent upon the specific 

nature of the substantial inadequacy in 

a given SIP provision. 

For example, when the EPA issued 

the NOX SIP Call to multiple states 

because their SIPs failed to address 

interstate transport adequately in 

accordance with section 

110(a)(2)(D)(i)(I), the Agency did base 

that SIP call on a detailed factual 

analysis including ambient air 

impacts.309 In that situation, the specific 

requirement of the CAA at issue was the 

statutory obligation of each state to have 

a SIP that contains adequate provisions 

to prohibit emissions from sources ‘‘in 

amounts’’ that ‘‘contribute significantly 

to nonattainment in, or interfere with 

maintenance by, any other State’’ with 

respect to the NAAQS. Because of the 

phrase ‘‘in amounts,’’ the EPA 

considered it appropriate to evaluate 

whether each state’s SIP was 

substantially inadequate to comply with 

section 110(a)(2)(D)(i)(I) through a 

detailed analysis of the emissions from 

the state and their impacts on other 

states. Moreover, given the use of 

ambiguous terms in section 

110(a)(2)(D)(i)(I) such as ‘‘contribute 

significantly,’’ the EPA concluded that it 

was appropriate to conduct a detailed 

analysis to quantify the amount of 

emissions that each of the affected states 

needed to eliminate in order to comply 

with section 110(a)(2)(D)(i)(I) for the 

specific NAAQS in question. However, 

the EPA’s decision to determine these 

facts and to conduct these analyses as a 

basis for that particular SIP call action 

was due to the nature of the SIP 

deficiency at issue and the wording of 

section 110(a)(2)(D)(i)(I). The EPA has 

similarly issued other SIP calls for 

which the Agency determined that a 

specific factual or technical analysis 

was appropriate to support the finding 

of substantial inadequacy.310

Not all situations, however, require 

the same type of detailed factual 

analysis to support the finding of 

substantial inadequacy. For example, 

when the EPA issued the PSD GHG SIP 

call to 13 states for failure to have a PSD 

permitting program that properly 

addresses GHG emissions, the Agency 

did not need to base that SIP call action 

on a detailed factual analysis of ambient 

air impacts.311 In that situation, the 

statutory requirement of the CAA in 

question was the obligation of each state 

SIP under section 110(a)(2)(C) to 

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312 Id., 75 FR 77698 at 77705–07. 

313See, e.g., ‘‘Finding of Substantial Inadequacy 

of Implementation Plan; Call for California State 

Implementation Plan Revision,’’ 68 FR 37746 (June 

25, 2003) (SIP call to California for failure to meet 

legal requirements of section 110(a)(2)(C), section 

110(a)(2)(I), and section 110(a)(2)(E) because of 

exemptions for agricultural sources from NNSR and 

PSD permitting requirements); ‘‘Credible Evidence 

Revisions,’’ 62 FR 8314 at 8327 (February 24, 1997) 

(discussing SIP calls requiring states to revise their 

SIPs to meet CAA requirements with respect to the 

use of any credible evidence in enforcement actions 

for SIP violations). 

314See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision; Proposed rule,’’ 76 

FR 21639 (April 18, 2011). 

315 Id., 76 FR 21639 at 21641. The EPA also found 

the first provision substantially inadequate because 

it operated to create an additional exemption for 

emissions during malfunctions that modified the 

existing emission limitations in some federal NSPS 

and NESHAP that the state had incorporated by 

reference into its SIP. The EPA’s 1999 SSM 

Guidance had indicated that state SIP provisions 

could not validly alter NSPS or NESHAP. 

316 Id. 

317 Id., 76 FR 21639 at 21643. 

318 690 F.3d 1157 (10th Cir. 2012). 

319 Id. 690 F.3d at 1168. 

include a PSD permitting program that 

addresses all federally regulated air 

pollutants, including GHGs. In that 

action, the EPA made a finding that the 

SIPs of 13 states were substantially 

inadequate to ‘‘comply with any 

requirement’’ of the CAA because the 

PSD permitting programs in their EPAapproved SIPs did not apply to GHG 

emissions from new and modified 

sources. Accordingly, the EPA issued a 

SIP call to the 13 states because their 

SIPs failed to comply with specific legal 

requirements of the CAA. This failure to 

meet an explicit CAA legal requirement 

to address GHG emissions in permits for 

sources as required by statute did not 

require the EPA to provide a technical 

analysis of the specific environmental 

impacts that this substantial inadequacy 

would cause. For this type of SIP 

deficiency, it was sufficient for the EPA 

to make a factual finding that the 

affected states had SIPs that failed to 

meet this fundamental legal 

requirement.312 The EPA has issued 

other SIP calls for which the Agency 

made a finding that a state’s failure to 

meet specific legal requirement of the 

CAA for SIPs was a substantial 

inadequacy without the need to provide 

a technical air quality analysis relating 

to NAAQS violations.313

The EPA believes that the most 

relevant precedent for what is necessary 

to support a finding of substantial 

inadequacy in this action is the SIP call 

that the Agency previously issued to the 

state of Utah for deficient SIP provisions 

related to the treatment of excess 

emissions during SSM events.314 In that 

SIP call action, the EPA made a finding 

that two specific provisions in the 

state’s SIP were substantially inadequate 

because they were inconsistent with 

legal requirements of the CAA. For one 

of the provisions that included an 

exemption for emissions during 

‘‘upsets’’ (i.e., malfunctions), the EPA 

explained: 

Contrary to CAA section 302(k)’s definition 

of emission limitation, the exemption [in the 

provision] renders emission limitations in 

the Utah SIP less than continuous and, 

contrary to the requirements of CAA sections 

110(a)(2)(A) and (C), undermines the ability 

to ensure compliance with SIP emissions 

limitations relied on to achieve the NAAQS 

and other relevant CAA requirements at all 

times. Therefore, the [provision] renders the 

Utah SIP substantially inadequate to attain or 

maintain the NAAQS or to comply with other 

CAA requirements such as CAA sections 

110(a)(2)(A) and (C) and 302(k), CAA 

provisions related to prevention of significant 

deterioration (PSD) and nonattainment NSR 

permits (sections 165 and 173), and 

provisions related to protection of visibility 

(section 169A).315

For a second provision, the EPA made 

a finding of substantial inadequacy 

because the provision interfered with 

the enforcement structure of the CAA. 

The EPA explained: 

This provision appears to give the executive 

secretary exclusive authority to determine 

whether excess emissions constitute a 

violation and thus to preclude independent 

enforcement action by EPA and citizens 

when the executive secretary makes a nonviolation determination. This is inconsistent 

with the enforcement structure under the 

CAA, which provides enforcement authority 

not only to the States, but also to EPA and 

citizens. . . . Because it undermines the 

envisioned enforcement structure, it also 

undermines the ability of the State to attain 

and maintain the NAAQS and to comply 

with other CAA requirements related to PSD, 

visibility, NSPS, and NESHAPS.316

In the Utah SIP call rulemaking, the 

EPA received similar adverse comments 

arguing that the Agency has no 

authority under section 110(k)(5) to 

issue a SIP call without a factual 

analysis that proves that the deficient 

SIP provisions caused a specific 

environmental harm, such as a NAAQS 

violation. Commenters in that 

rulemaking likewise argued that the 

EPA was required to prove a causal 

connection between the excess 

emissions that occurred during a 

specific exempt malfunction and a 

specific violation of the NAAQS. In 

response to those comments, the EPA 

explained: 

[W]e need not show a direct causal link 

between any specific unavoidable breakdown 

excess emissions and violations of the 

NAAQS to conclude that the SIP is 

substantially inadequate. It is our 

interpretation that the fundamental integrity 

of the CAA’s SIP process and structure is 

undermined if emission limits relied on to 

meet CAA requirements can be exceeded 

without potential recourse by any entity 

granted enforcement authority by the CAA. 

We are not restricted to issuing SIP calls only 

after a violation of the NAAQS has occurred 

or only where a specific violation can be 

linked to a specific excess emissions 

event.317

The EPA’s interpretation of section 

110(k)(5) in the Utah action was directly 

challenged in US Magnesium, LLC v. 

EPA.318 Among other claims, the 

petitioners argued that the EPA did not 

have authority for the SIP call because 

the Agency had not ‘‘set out facts 

showing that the [SIP provision] has 

prevented Utah from attaining or 

maintaining the NAAQS or otherwise 

complying with the CAA.’’ Thus, the 

same arguments raised by commenters 

in this action have previously been 

advanced and rejected by the EPA and 

the courts. The court expressly upheld 

the EPA’s interpretation of section 

110(k)(5), concluding: 

Certainly, a SIP could be deemed 

substantially inadequate because air-quality 

records showed that actions permitted under 

the SIP resulted in NAAQS violations, but 

the statute can likewise apply to a situation 

like this, where the EPA determines that a 

SIP is no longer consistent with the EPA’s 

understanding of the CAA. In such a case, the 

CAA permits the EPA to find that a SIP is 

substantially inadequate to comply with the 

CAA, which would allow the EPA to issue 

a SIP call under CAA section 110(k)(5).319

Finally, the EPA disagrees with the 

commenters on this specific point 

because it is not a logical construction 

of section 110(k)(5). The implication of 

the commenters’ argument is that if a 

given area is in attainment, then the 

question of whether the SIP provisions 

meet applicable legal requirements is 

irrelevant. If a given area is not in 

attainment, then the implication of the 

commenter’s argument is that the EPA 

must prove that the legally deficient SIP 

provision factually caused the violation 

of the NAAQS or else the legal 

deficiency is irrelevant. In the latter 

case, the logical extension of the 

commenter’s argument is that no matter 

how deficient a SIP provision is to meet 

applicable legal requirements, the EPA 

is foreclosed from directing the state to 

correct that deficiency unless and until 

there is proof of a specific 

environmental harm caused, or specific 

enforcement case thwarted, by that 

deficiency. Such a reading is 

inconsistent with both the letter and the 

intent of section 110(k)(5). 

2. Comments that the EPA must make 

specific factual findings to meet the 

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320See S. Rep No. 91–1196 at 55–56 (1970). 

321See, e.g., ‘‘Finding of Significant Contribution 

and Rulemaking for Certain States in the Ozone 

Transport Assessment Group Region for Purposes of 

Reducing Regional Transport of Ozone; Final rule,’’ 

63 FR 57355 (October 27, 1998) (EPA found that the 

SIPs of multiple states did not adequately control 

emissions that resulted in significant contribution 

to nonattainment in other states); ‘‘Action To 

Ensure Authority To Issue Permits Under the 

Prevention of Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: Finding of 

Substantial Inadequacy and SIP Call; Final rule,’’ 75 

FR 77697 (December 13, 2010) (EPA found that the 

SIPs of multiple states did not meet the legal 

requirements for PSD permitting for GHG 

emissions). 

requirements of section 110(a)(2)(H)(ii) 

to have authority to issue a SIP call. 

Comment: A number of commenters 

argued that even if section 110(k)(5) 

does not require the EPA to provide a 

technical analysis to support a finding 

of substantial inadequacy, section 

110(a)(2)(H)(ii) does impose this 

obligation. The commenters noted that 

section 110(a)(2)(H)(ii) requires states to 

revise their SIPs ‘‘whenever the 

Administrator finds on the basis of 

information available to the 

Administrator that the plan is 

substantially inadequate.’’ The 

commenters claimed that this statutory 

language imposes a requirement for the 

EPA to ‘‘find’’ the SIP inadequate and 

‘‘clearly indicates that a SIP Call must 

be justified by factual findings 

supported by record evidence.’’ 

One commenter argued that the use of 

the word ‘‘finds’’ should be read in light 

of the dictionary definition of ‘‘find’’— 

‘‘to discover by study or experiment.’’ 

The commenter noted that courts 

commonly hold that agencies must draw 

a link between the facts and a 

challenged agency decision. To support 

this basic principle of administrative 

law, the commenter cited a litany of 

cases including: Motor Vehicle Mfrs 

Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29, 43 (1983); Appalachian 

Power Co. v. EPA, 251 F.3d 1026, 1034 

(D.C. Cir. 2001); Tex Tin Corp. v. EPA, 

992 F.2d 353, 356 (D.C. Cir. 1993); Nat’l 

Gypsum v. EPA, 968 F.2d 40, 43–44 

(D.C. Cir. 1992); Michigan v. EPA, 213 

F.3d 663, 681 (D.C. Cir. 2000). Thus, the 

commenter suggested that the statutory 

language of section 110(a)(2)(H)(ii) 

requires a specific factual or technical 

demonstration concerning the ambient 

air impacts of an inadequate SIP 

provision, even if the language of 

section 110(k)(5) does not. 

Another commenter argued that the 

phrase ‘‘on the basis of information 

available to the Administrator’’ in 

section 110(a)(2)(H)(ii) means that the 

EPA must not only consider the specific 

terms of the SIP provisions relative to 

the legal requirements of the statute but 

must also consider other information 

that is ‘‘available,’’ including how the 

provisions have been affecting air 

quality or enforcement since approval. 

In support of this proposition, the 

commenter cited 1970 legislative history 

for section 110(a)(2)(H): 

Whenever the Secretary or his 

representative finds from new information 

developed after the plan is approved that the 

plan is not or will not be adequate to achieve 

promulgated ambient air quality standards he 

must notify the appropriate States and give 

them an opportunity to respond to the new 

information.320

Thus, the commenter concluded that 

the EPA must not only find that the SIP 

is facially inconsistent with the legal 

requirements of the CAA but also find 

it ‘‘substantially inadequate’’ to achieve 

the goals of the requirements as a factual 

matter before issuing a SIP call. The 

implication of the commenter’s 

argument is that section 110(a)(2)(H)(ii) 

imposes additional limitations upon the 

EPA’s authority to issue a SIP call. 

Response: The EPA disagrees that it 

has not made the findings necessary to 

support the present SIP call action. The 

thrust of the commenters’ argument is 

that the facts that the EPA ‘‘finds’’ or the 

‘‘information’’ upon which the EPA 

bases such a finding can only be 

technical or scientific facts proving that 

a given SIP provision resulted in 

emissions that caused a specific 

violation of the NAAQS. As with 

section 110(k)(5), however, nothing in 

section 110(a)(2)(H)(ii) compels such a 

narrow reading. The plain language of 

section 110(a)(2)(H)(ii) does not support 

the commenters’ arguments. To the 

extent that section 110(a)(2)(H)(ii) is 

ambiguous, however, the EPA does not 

interpret it to require the types of 

technical findings claimed by the 

commenters in the case of SIP 

provisions that do not meet legal 

requirements of the CAA. To the 

contrary, the EPA interprets the 

statutory language to leave to the 

Agency’s discretion what facts or 

information are necessary to find that a 

given SIP provision is substantially 

inadequate. In short, the EPA’s 

‘‘finding’’ may be a finding that a SIP 

provision does not meet applicable legal 

requirements without definitive proof 

that this legal deficiency caused a 

specific outcome, such as a specific 

impact on the NAAQS or a specific 

enforcement action. 

First, section 110(a)(2)(H)(ii) does not 

on its face directly address the scope of 

the EPA’s authority, unlike section 

110(k)(5). Section 110(a)(2)(H)(ii) 

appears in section 110(a)(2), which 

contains a listing of specific structural 

or program requirements that each 

state’s SIP must include. In the case of 

section 110(a)(2)(H)(ii), the CAA 

requires each state to have provisions in 

its SIP that ‘‘provide for revision of such 

plan’’ in the event that the EPA issues 

a SIP call. Given that section 110(k)(5) 

is the provision that directly addresses 

the EPA’s authority to issue a SIP call, 

section 110(a)(2)(H)(ii) should not be 

interpreted in a way that contradicts or 

curtails the broad authority provided in 

section 110(k)(5). The EPA does not 

interpret section 110(k)(5) to require 

proof that a given SIP provision caused 

a specific environmental harm or 

undermined a specific enforcement 

action in order to find the provision 

substantially inadequate. If the 

provision fails to meet fundamental 

legal requirements of the CAA for SIP 

provisions, that alone is sufficient. 

Second, even if read in isolation, 

section 110(a)(2)(H)(ii) does not specify 

what type of finding the EPA is required 

to make or specify the way in which the 

Agency should make such a finding. 

The EPA agrees that this section of the 

CAA describes findings that the EPA 

makes ‘‘on the basis of information 

available to the Administrator that the 

plan is substantially inadequate to 

attain’’ the NAAQS. This section does 

not, however, expressly state that the 

‘‘information’’ in question must be a 

particular form of information, nor does 

it expressly require any specified form 

of technical analysis such as modeling 

that demonstrates that a particular SIP 

deficiency caused a violation of the 

NAAQS. Because the term 

‘‘information’’ is not limited in this way, 

the EPA interprets it to mean whatever 

form of information is relevant to the 

finding in question. For certain types of 

deficiencies, the EPA may determine 

that such a technical analysis is 

appropriate, but that does not mean that 

it is required as a basis for all findings 

of substantial inadequacy.321

Third, section 110(a)(2)(H)(ii), like 

section 110(k)(5), is not limited to 

findings related exclusively to 

attainment of the NAAQS. Section 

110(a)(2)(H)(ii) also expressly refers to 

findings by the EPA that a SIP is 

substantially inadequate ‘‘to otherwise 

comply with any additional 

requirements established under’’ the 

CAA. The EPA interprets this explicit 

reference to ‘‘any additional 

requirements’’ to include any legal 

requirements applicable to SIP 

provisions, such as the requirement that 

emission limitations must apply 

continuously. The commenters 

misconstrue section 110(a)(2)(H)(ii) to 

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322The EPA notes that the significance of this 

1970 legislative history was raised in US 

Magnesium, LLC v. EPA, 690 F.3d 1157, 1166 (10th 

Cir. 2012). That court found the legislative history 

‘‘inapposite’’ simply because it did not pertain to 

section 110(k)(5) which Congress added to the CAA 

in 1990. This legislative history passage is of 

limited significance in this action as well. 323 Id., 690 F.3d 1157, 1166. 

324See February 2013 proposal, 78 FR 12459 at 

12483–88. 

refer exclusively to provisions that are 

literally found to cause a specific 

violation of the NAAQS. The EPA 

acknowledges that the legislative history 

quoted by the commenters discusses 

findings related to a failure of a SIP to 

attain the NAAQS, but the passage 

quoted does not explain the meaning of 

‘‘new information’’ any more 

specifically than the statute, nor does 

the passage explain why the actual 

statutory text of section 110(a)(2)(H)(ii) 

now refers to findings related to failures 

to meet ‘‘any additional requirements’’ 

of the CAA.322 Moreover, the 

commenters did not address the changes 

to the CAA in 1977 that added to the 

statutory language to refer to other 

requirements, nor did they address the 

changes to the CAA in 1990 that added 

section 110(k)(5), which refers to all 

other requirements of the CAA. The 

EPA believes that the more recent 

changes to the statute in fact support its 

view that section 110(a)(2)(H)(ii) entails 

compliance with the legal requirements 

of the CAA, not the narrow reading 

advocated by the commenters. 

Fourth, the EPA disagrees with the 

commenters’ arguments that it did not 

make factual ‘‘findings’’ to support this 

SIP call. To the contrary, the EPA has 

made numerous factual determinations 

with regard to the specific SIP 

provisions at issue. For example, for 

those SIP provisions that include 

automatic exemptions for emissions 

during SSM events, the EPA has found 

that the provisions are inconsistent with 

the definition of ‘‘emission limitation’’ 

in section 302(k) and that SIP provisions 

that allow sources to exceed otherwise 

applicable emission limitations during 

SSM events may interfere with 

attainment and maintenance of the 

NAAQS. The EPA has also made the 

factual determination that other SIP 

provisions that authorize director’s 

discretion exemptions during SSM 

events are inconsistent with the 

statutory provisions applicable to the 

approval and revision of SIP provisions. 

The EPA has found that overbroad 

enforcement discretion provisions are 

inconsistent with the enforcement 

structure of the CAA in that they could 

be interpreted to allow the state to make 

the final decision whether such 

emissions are violations, thus impeding 

the ability of the EPA and citizens to 

enforce the emission limitations of the 

SIP. Similarly, the EPA has found, 

consistent with the court’s decision in 

NRDC v. EPA, that affirmative defenses 

in SIP provisions are inconsistent with 

CAA requirements because they operate 

to alter or eliminate the jurisdiction of 

the courts to determine liability and 

impose penalties. In short, the EPA has 

made the factual findings that specific 

provisions are substantially inadequate 

to meet requirements of the CAA, as 

contemplated in both section 

110(a)(2)(H)(ii) and section 110(k)(5). 

Finally, the EPA notes that the cases 

cited by the commenters to support 

their contentions concerning the factual 

basis for agency decisions are not 

relevant to the specific question at hand. 

The correct question is whether section 

110(a)(2)(H)(ii) requires the type of 

factual or technical analysis that they 

claim. None of the cases they cited 

address this specific issue. By contrast, 

the decision of the Tenth Circuit in US 

Magnesium, LLC v. EPA is much more 

relevant. In that decision, the court 

concluded that the EPA’s authority 

under section 110(k)(5) is not restricted 

to situations where a deficient SIP 

provision caused a specific violation of 

the NAAQS and the exercise of that 

authority does not require specific 

factual findings that the provision 

caused such impacts.323

3. Comments that the EPA lacks 

authority to issue a SIP call because it 

is interpreting the term ‘‘substantial 

inadequacy’’ incorrectly. 

Comment: Some commenters claimed 

that although the term ‘‘substantially 

inadequate’’ is not defined in the 

statute, the EPA made no effort to 

interpret the term. Citing Qwest Corp. v. 

FCC, 258 F.3d 1191, 1201–02 (10th Cir. 

2001), the commenters argued that the 

EPA is not entitled to any deference to 

its interpretation of the term 

‘‘substantial inadequacy.’’ 

Other commenters acknowledged that 

the EPA took the position that the term 

‘‘substantially inadequate’’ is not 

defined in the CAA and that the Agency 

can establish an interpretation of that 

provision under Chevron step 2. 

However, these commenters disagreed 

that the EPA’s interpretation of the term 

in the February 2013 proposal was 

reasonable. In particular, the 

commenters disagreed with the EPA’s 

view that once a SIP provision is found 

to be ‘‘facially inconsistent’’ with a 

specific legal requirement of the CAA, 

nothing more is required to find the 

provision ‘‘substantially inadequate’’ to 

‘‘comply with’’ that requirement. 

Commenters claimed that the EPA’s 

interpretation conflicts with the statute 

because it ignores the statutory 

requirement that a SIP call be based on 

inadequacies that are ‘‘substantial’’ and 

that the interpretation does not meet the 

‘‘high bar’’ Congress established before 

states could be required to undertake 

the difficult task of revising a SIP. 

State commenters claimed that the 

requirement that the EPA must 

determine that the SIP is ‘‘substantially’’ 

inadequate establishes a heavy burden 

for the EPA. The commenters relied on 

a dictionary definition of 

‘‘substantially’’ as meaning 

‘‘considerable in importance, value, 

degree, amount, or extent.’’ The 

commenters argued that when 

modifying the word ‘‘inadequate,’’ the 

use of the modifier ‘‘substantially’’ in 

section 110(k)(5) enhances the degree of 

proof required. Thus, the commenters 

argued that the EPA cannot just assume 

that the provisions may prevent 

attainment of the NAAQS. 

Other industry commenters disagreed 

that the term ‘‘substantially inadequate’’ 

is ambiguous but claimed that even if it 

were, the EPA’s own interpretation is 

vague and ambiguous. The commenters 

asserted that the EPA’s statement that it 

must evaluate the adequacy of specific 

SIP provision ‘‘in light of the specific 

purposes for which the SIP provision at 

issue is required’’ and with respect to 

whether the provision meets 

‘‘fundamental legal requirements 

applicable to such a provision’’ is not a 

reasonable interpretation of the 

statutory language. Furthermore, the 

commenters argued, the EPA’s 

interpretation of section 110(k)(5) to 

authorize a SIP call in the absence of 

any causal evidence that the SIP 

provision at issue causes a particular 

environmental impact reads out of the 

statute ‘‘the explicit requirement that a 

SIP call related to NAAQS be made only 

where the state plan is substantially 

inadequate to attain or maintain the 

relevant standard.’’ 

Response: The EPA disagrees with 

commenters who claimed that the 

Agency did not explain its 

interpretation of section 110(k)(5) in 

general, or the term ‘‘substantially 

inadequate’’ in particular, in the 

February 2013 proposal. To the 

contrary, the EPA provided an 

explanation of why it considers section 

110(k)(5) to be ambiguous and provided 

a detailed explanation of how the 

Agency is interpreting and applying that 

statutory language to the specific SIP 

provisions at issue in this action.324

Moreover, the EPA explained why it 

believes that the four major types of 

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325See, e.g., H.R. 95–294, at 92 (1977) (referring 

to emission limitations as a fundamental tool for 

assuring attainment and maintenance of the 

NAAQS and stating that unless they are ‘‘complied 

with at all times, there can be no assurance that 

ambient standards will be attainment and 

maintained.’’ 

326 696 F.3d 7, 29 (D.C. Cir. 2012) rev’d, 134 S. 

Ct. 1584 (2014). 

provisions at issue are inconsistent with 

applicable legal requirements of the 

CAA and thus substantially inadequate. 

In the SNPR, the EPA reiterated its 

interpretation of section 110(k)(5) with 

respect to affirmative defense provisions 

in SIPs but updated that interpretation 

in response to the logic of the more 

recent court decision in NRDC v. EPA. 

Thus, the commenters’ reliance on the 

Qwest decision is not appropriate, 

because the EPA did explain its 

interpretation of the statute and it is not 

one that is contrary to the statute. A 

more appropriate precedent is the 

decision in US Magnesium, LLC v. EPA, 

in which the same court upheld the 

EPA’s interpretation of its authority 

under section 110(k)(5). In short, the 

EPA believes that section 110(k)(5) 

provides the EPA with discretion to 

determine what constitutes a substantial 

inadequacy and to determine the 

appropriate basis for such a finding in 

light of the relevant CAA requirements 

at issue. Thus, the commenters are in 

error that the EPA did not articulate its 

interpretation of section 110(k)(5). 

The EPA also disagrees with those 

commenters who argued that the 

Agency has ignored or misinterpreted 

the term ‘‘substantial’’ in this action. As 

many commenters acknowledged, this 

term is not defined in the statute. Their 

reliance on a dictionary definition, 

however, is based on the incorrect 

premise that a failure to comply with 

the legal requirements of the CAA for 

SIP provisions is not ‘‘considerable in 

importance, value, degree, amount, or 

extent.’’ 

First, the commenters’ argument 

ignores the full statutory language of 

section 110(k)(5) in which the EPA is 

authorized to issue a SIP call whenever 

it determines that a given SIP provision 

is inadequate, not only because of 

impacts on attainment of the NAAQS 

but also upon a failure to meet ‘‘any 

other requirement’’ of the CAA. As 

explained in the February 2013 proposal 

and in the SNPR, the EPA interprets its 

authority under section 110(k)(5) to 

encompass any type of deficiency, 

including failure to meet specific legal 

requirements of the CAA for SIP 

provisions. Failure to comply with these 

legal requirements can have the effect of 

interfering with attainment and 

maintenance of the NAAQS (e.g., by 

allowing unlimited emissions from 

sources during SSM events), but the 

failure to comply with the legal 

requirements is in and of itself a basis 

for a SIP call. 

Second, the commenters’ argument 

implies that failure of a SIP provision to 

meet a legal requirement of the CAA is 

not a ‘‘substantial’’ inadequacy. The 

EPA strongly disagrees with the view 

that complying with applicable legal 

requirements is not an important 

consideration in general, and not 

important with respect to the specific 

legal defects at issue here. For example, 

the EPA considers a SIP provision that 

does not apply continuously because it 

contains SSM exemptions to be 

substantially inadequate because it fails 

to meet legal requirements of sections 

110(a)(2)(A), 110(a)(2)(C) and 302(k). In 

particular, failure to meet the legal 

requirements for an emission limitation 

as contemplated in section 302(k) is a 

‘‘substantial’’ inadequacy. The EPA is 

not alone in this view; the D.C. Circuit 

in the Sierra Club v. Johnson case held 

that emission limitations must be 

continuous and cannot contain SSM 

exemptions. If inclusion of SSM 

exemptions in emission limitations 

were not a ‘‘substantial’’ deficiency from 

the court’s perspective, presumably the 

court would have ruled differently. As 

another example, the EPA considers the 

inclusion of affirmative defenses in SIP 

provisions that operate to alter the 

jurisdiction of the courts to be a 

substantial inadequacy. Again, the 

EPA’s view that SIP provisions cannot 

interfere with the enforcement structure 

of the CAA set forth in section 113 and 

section 304 is not unreasonable. The 

court’s decision in NRDC v. EPA held 

that EPA regulations cannot alter or 

eliminate the jurisdiction of courts to 

determine liability and impose remedies 

in judicial enforcement cases and this 

same logic extends to the states in SIP 

provisions. Contrary to the arguments of 

the commenters, the EPA reasonably 

interprets the term ‘‘substantial’’ in 

section 110(k)(5) to include compliance 

with the legal requirements of the CAA 

applicable to SIP provisions. 

Third, the EPA notes that its reading 

of section 110(k)(5) does not ‘‘read out 

of the statute’’ the statutory language 

that SIP provisions can be substantially 

inadequate ‘‘to attain or maintain the 

relevant NAAQS’’ as claimed by the 

commenters. The EPA agrees that SIP 

provisions can be found substantially 

inadequate for this specific reason, but 

it is the commenters who read words 

out of section 110(k)(5) by disregarding 

the portion of the statute that also 

authorizes a SIP call whenever a SIP 

provision does not ‘‘comply with any 

requirement of’’ the CAA. Indeed, the 

EPA believes that SIP provisions that 

fail to meet the specific legal 

requirements of the CAA are very likely 

to have these impacts as well; e.g., the 

unlimited emissions authorized by SSM 

exemptions can interfere with 

attainment and maintenance of the 

NAAQS. The EPA believes that 

Congress consciously included these 

fundamental legal requirements in order 

to assure that SIP provisions will 

achieve the objectives of the CAA, such 

as attainment and maintenance of the 

NAAQS. For example, legislative 

history for section 302(k) indicates that 

Congress intentionally required that 

emission limitations apply continuously 

in order to assure that they would 

achieve these goals as well as be 

consistent with the enforcement 

structure of the CAA.325

4. Comments that the EPA lacks 

authority to issue a SIP call because it 

is required to ‘‘quantify’’ the magnitude 

of any alleged SIP deficiency in order to 

establish that it is substantial. 

Comment: A number of commenters 

argued that, in addition to failing to 

provide a required technical analysis to 

support a SIP call, the EPA was also 

failing to quantify in advance the degree 

of inadequacy that is necessary for a 

given SIP provision to be substantially 

inadequate. The commenters asserted 

that the EPA has a burden to define in 

advance what amount of inadequacy is 

‘‘substantial,’’ before the Agency can 

require states to comply with a SIP call. 

Some commenters made this argument 

based upon their experience with prior 

SIP call rulemakings, such as the NOX

SIP call in which the Agency performed 

such an analysis. Other commenters, 

however, evidently based this argument 

upon their reading of the D.C. Circuit’s 

decision in EME Homer City Generation, 

L.P. v. EPA.326 Some commenters also 

argued that ‘‘all’’ past EPA SIP calls 

have been based upon a specific 

technical analysis concerning the 

sufficiency of a SIP to provide for 

attainment and maintenance of a 

NAAQS and that this establishes that 

such an analysis is always required. 

Response: The EPA disagrees that 

section 110(k)(5) requires the Agency to 

‘‘quantify’’ the degree of inadequacy in 

a given SIP provision before issuing a 

SIP call. As explained in detail in the 

February 2013 proposal and this 

document, the EPA interprets section 

110(k)(5) to authorize the Agency to 

determine the nature of the analysis 

necessary to make a finding that a SIP 

provision is substantially inadequate. 

The EPA agrees that for certain SIP call 

actions, such as the NOX SIP call, the 

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327Chevron, U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837, 843–44 (1984). 

328See, e.g., US Magnesium, LLC v. EPA, 690 F.3d 

1157, 1168 (10th Cir. 2012) (citing 42 U.S.C. 

7410(k)(5)) (holding that the EPA may issue a SIP 

call not only based on NAAQS violations, but also 

whenever ‘‘EPA determines that a SIP is no longer 

consistent with the EPA’s understanding of the 

CAA’’); id. at 1170 (upholding the EPA’s authority 

‘‘to call a SIP in order to clarify language in the SIP 

that could be read to violate the CAA,’’ even absent 

a pertinent judicial finding). 

specific nature of the SIP call in 

question for section 110(a)(2)(D)(i) did 

warrant a technical evaluation of 

whether the emissions from sources in 

particular states were significantly 

contributing to violations of a NAAQS 

in other states. Thus, the EPA elected to 

perform a specific form of analysis to 

determine whether emissions from 

sources in certain states significantly 

contributed to violations of the NAAQS 

in other states, and if so, what degree of 

reductions were necessary to remedy 

that interstate transport. 

The nature of the SIP deficiencies at 

issue in this action does not require that 

type of technical analysis and does not 

require a ‘‘quantification’’ of the extent 

of the deficiency. In this action, the EPA 

is promulgating a SIP call action that 

directs the affected states to revise 

existing SIP provisions with specific 

legal deficiencies that make the 

provisions inconsistent with 

fundamental legal requirements of the 

CAA for SIPs, e.g., automatic 

exemptions for emissions during SSM 

events or affirmative defense provisions 

that limit or eliminate the jurisdiction of 

courts to determine liability and impose 

remedies for violations. Accordingly, 

the EPA has determined that it is not 

necessary to establish that these 

deficiencies literally caused a specific 

violation of the NAAQS on a particular 

day or undermined a specific 

enforcement case. It is sufficient that the 

provisions fail to meet a legal 

requirement of the CAA and thus are 

substantially inadequate as provided in 

section 110(k)(5). 

5. Comments that the EPA’s 

interpretation of substantial inadequacy 

would override state discretion in 

development of SIP provisions. 

Comment: Some state and industry 

commenters argued that the EPA’s 

interpretation of its authority under 

section 110(k)(5) is wrong because it is 

inconsistent with the principle of 

cooperative federalism. These 

commenters asserted that the EPA’s 

interpretation of the term ‘‘substantially 

inadequate,’’ as explained in the 

February 2013 proposal, would allow 

the Agency to dictate that states revise 

their SIPs without any consideration of 

whether the states’ preferred control 

measures affect attainment of the 

NAAQS, thereby expanding the EPA’s 

role in CAA implementation. 

Consequently, these commenters 

concluded, the EPA’s interpretation of 

section 110(k)(5) is neither ‘‘reasonable’’ 

nor ‘‘a permissible construction of the 

statute’’ under the principles of Chevron 

deference.327

Response: The EPA disagrees with the 

commenters’ view of the cooperativefederalism relationship established in 

the CAA, as explained in detail in 

section V.D.2 of this document. Because 

the commenters are misconstruing the 

respective responsibility and authorities 

of the states and the EPA under 

cooperative federalism, the Agency does 

not agree that its interpretation of 

section 110(k)(5) is ‘‘unreasonable’’ for 

this reason under the principles of 

Chevron. As explained in detail in the 

February 2013 proposal, the EPA 

interprets its authority under section 

110(k)(5) to include the ability to 

require states to revise their SIP 

provisions to correct the types of 

deficiencies at issue in this action. 

Section 110(k)(5) explicitly authorizes 

the EPA to issue a SIP call for a broad 

range of reasons, including to address 

any SIP provisions that relate to 

attainment and maintenance of the 

NAAQS, to interstate transport, or to 

any other requirement of the CAA.328

The EPA’s authority and responsibility 

to review SIP submissions in the first 

instance is to assure that they meet all 

applicable procedural and substantive 

requirements of the CAA, in accordance 

with the requirements of sections 

110(k)(3), 110(l) and 193. The EPA’s 

authority and responsibility under the 

CAA includes assuring that SIP 

provisions comply with specific 

statutory requirements, such as the 

requirement that emission limitations 

apply to sources continuously. The CAA 

imposes these statutory requirements in 

order to assure that the larger objectives 

of SIPs are achieved, such as the 

attainment and maintenance of the 

NAAQS, protection of PSD increments, 

improvement of visibility and providing 

for effective enforcement. The CAA 

imposes this authority and 

responsibility upon the EPA when it 

first evaluates a SIP submission for 

approval. Likewise, after the initial 

approval, section 110(k)(5) authorizes 

the EPA to require states to revise their 

SIPs whenever the Agency later 

determines that to be necessary to meet 

CAA requirements. This does not in any 

way allow the EPA to interfere in the 

states’ selection of the control measures 

they elect to impose to satisfy CAA 

requirements relating to NAAQS 

attainment and maintenance, provided 

that those selected measures comply 

with all CAA requirements such as the 

need for continuous emissions 

limitations. Accordingly, the EPA 

believes that its interpretation of section 

110(k)(5) is fully consistent with the 

letter and the purpose of the principles 

of cooperative federalism. 

6. Comments that the EPA cannot 

issue a SIP call for an existing SIP 

provision unless the provision was 

deficient at the time the state originally 

developed and submitted the provision 

for EPA approval. 

Comment: Commenters argued that 

the EPA is using the SIP call to require 

states to change SIP provisions that 

were acceptable at the time they were 

originally approved and argued that 

section 110(k)(5) cannot be used for that 

purpose. Specifically, one commenter 

asserted that section 110(k)(5) provides 

that findings of substantial inadequacy 

shall ‘‘subject the State to the 

requirements of this chapter to which 

the State was subject when it developed 

and submitted the plan for which such 

finding was made.’’ (Emphasis added by 

commenter.) The implication of the 

commenters’ argument is that a SIP 

provision only needs to meet the 

requirements of the CAA that were 

applicable at the time the state 

originally developed and submitted the 

provision for EPA approval. Because the 

EPA has no authority to issue a SIP call 

under their preferred reading of section 

110(k)(5), the commenters claimed, the 

EPA would have to use its authority 

under section 110(k)(6) and would have 

to establish that the original approval of 

each of the provisions at issue in this 

action was in error. 

Response: The EPA disagrees with 

this reading of section 110(k)(5). As an 

initial matter, the commenter takes the 

quoted excerpt of the statute out of 

context. The quoted language follows 

‘‘to the extent the Administrator deems 

appropriate.’’ Thus, it is clear when the 

statutory provision is read in full that 

the EPA has discretion in specifying the 

requirements to which the state is 

subject and is not limited to specifying 

only those requirements that applied at 

the time the SIP was originally 

‘‘developed and submitted.’’ Moreover, 

this cramped reading of section 

110(k)(5) is not a reasonable 

interpretation of the statute because by 

this logic, the EPA could never require 

states to update grossly out-of-date SIP 

provisions so long as the provisions 

originally met CAA requirements. Given 

that the CAA creates a process by which 

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329See February 2013 proposal, 78 FR 12459 at 

12483, n.72. 

the EPA is required to establish and to 

update the NAAQS on a continuing 

basis, and states are required to update 

and revise their SIPs on a continuing 

basis, the Agency believes that Congress 

would not have intended that SIP 

provisions remain static for all time 

simply because they were adequate 

when first developed and approved. 

Such an interpretation would mean that 

subsequent legally significant events 

such as amendments of the CAA, court 

decisions interpreting the CAA and new 

or revised EPA regulations are not 

relevant to the continuing adequacy of 

existing SIP provisions. Similarly, such 

an interpretation would mean that facts 

arising later could never provide a basis 

for a SIP call, e.g., to address interstate 

transport that was not evident at the 

time of the original development and 

approval of the SIP provisions or that 

needs to be addressed further because of 

a revised NAAQS. 

The commenters also argued that if a 

state’s SIP provision was flawed at the 

time the EPA approved it, then the 

Agency’s only alternative for addressing 

the deficient provision is through the 

error correction authority of section 

110(k)(6). The EPA disagrees. The CAA 

provides a number of tools to address 

flawed SIPs and the EPA does not 

interpret these provisions to be 

mutually exclusive. While the EPA 

could potentially have relied on section 

110(k)(6) to remove the deficient 

provisions at issue in this action, the 

Agency believes that section 110(k)(5) 

authority also provides a means to 

address flawed SIP provisions. As 

explained in the February 2013 

proposal, the EPA specifically 

considered the relative merits of 

reliance on section 110(k)(5) and section 

110(k)(6) and determined that the 

former was a better approach for this 

action.329 In the present circumstances, 

the EPA is not addressing a single 

targeted flaw, i.e., a specific SIP revision 

that was flawed. Moreover, the EPA is 

not only dealing with a multitude of 

states in this action, but also in many 

cases with numerous SIP provisions 

developed over the years by a specific 

state. The provisions at issue often are 

included in several different places in a 

complex SIP and can affect multiple 

emission limitations in the SIP that 

apply to sources for purposes of 

multiple NAAQS. 

Comparing the SIP call and error 

correction approaches, the EPA 

concluded that the SIP call authority 

under section 110(k)(5) provides the 

better approach for this action, in that 

it allows the states to evaluate the 

overall structure of their existing SIPs 

and determine how best to modify the 

affected SIP provisions in order to 

address the identified deficiencies. By 

contrast, use of the error correction 

authority under section 110(k)(6) would 

result in immediate disapproval and 

removal of existing SIP provisions from 

the SIP, which could cause confusion in 

terms of what requirements apply to 

sources. Moreover, the EPA’s 

disapproval of a SIP submission through 

an error correction that reverses a prior 

SIP approval of a required SIP provision 

starts a ‘‘sanctions clock,’’ and sanctions 

would apply if the state has not 

submitted a revised SIP within 18 

months. Similarly, the EPA would be 

required to promulgate a FIP if the 

Agency has not approved a revised SIP 

submission from the state within 24 

months. In comparison, the sanctions 

and federal plan ‘‘clocks’’ would not 

start under the SIP call approach unless 

and until the state fails to submit a SIP 

revision in response to this SIP call, or 

unless and until the EPA disapproves 

that SIP submission. As explained in the 

February 2013 proposal, the EPA 

determined that the SIP call process was 

a better procedure through which to 

address the deficient SIP provisions at 

issue in this action. 

7. Comments that the EPA failed to 

consider how excess emissions resulting 

from SSM exemptions would affect 

compliance with specific NAAQS, 

including NAAQS with different 

averaging periods or different statistical 

forms. 

Comment: In addition to general 

claims that the EPA failed to provide 

required technical analysis to support 

the proposed SIP call to states for 

automatic and discretionary SSM 

exemptions, commenters specifically 

argued that the EPA is required to 

establish that these exemptions have 

caused violations in light of the 

considerations such as the averaging 

time or statistical form of specific 

NAAQS. The implication of the 

commenters’ argument is that in order 

to demonstrate that a given SIP 

provision with an SSM exemption is 

substantially inadequate under section 

110(k)(5), the EPA has to establish 

definitively that the emissions during 

SSM events would cause a violation of 

a particular NAAQS. This would 

potentially include an evaluation of the 

impacts of the exempted emissions on 

NAAQS with different averaging 

periods, e.g., impacts on an annual 

NAAQS, a 24-hour NAAQS, or a 1-hour 

NAAQS, and impacts on NAAQS with 

different statistical forms, e.g., a NAAQS 

that measures attainment by an annual 

arithmetical mean versus one that is 

measured by a 98th-percentile value. 

Moreover, commenters alluded to the 

difficulty of ascertaining definitively 

how emissions of specific precursor 

pollutants during a given exempted 

SSM event would affect attainment of 

one or more NAAQS. 

To support the argument that the 

validity of SSM exemptions must be 

evaluated with respect to specific 

NAAQS, the commenters relied upon 

recent modeling guidance for the 1-hour 

NO2 NAAQS in which, the commenters 

claimed, the EPA directed states to 

disregard emissions during SSM events 

for purposes of demonstrating 

compliance with that NAAQS. The 

commenters claimed that the cited EPA 

guidance supports their argument that 

emissions from a source during any 

specific SSM event are unlikely to cause 

a violation of the 1-hour NO2 NAAQS. 

Accordingly, the commenters argued 

that the EPA has no authority to 

interpret the CAA to preclude 

exemptions for emissions during SSM 

events without first demonstrating that 

the exempt emissions cause NAAQS 

violations. 

Response: As explained in the 

February 2013 proposal, and in 

response to other comments in this 

action, the EPA does not interpret 

section 110(k)(5) to require a specific 

technical analysis to support a SIP call 

related to legal deficiencies in SIP 

provisions. In section 110(k)(5), 

Congress left it to the Agency’s 

discretion to determine what type and 

level of analysis is necessary to establish 

that a SIP provision is substantially 

inadequate. As explained in the 

February 2013 proposal, the EPA does 

not need to define the precise contours 

of its authority under section 110(k)(5) 

for all potential types of SIP deficiencies 

in this action. For purposes of this 

action, it is sufficient that the SIP 

provisions at issue are inconsistent with 

applicable requirements. While an 

ambient air quality impact analysis may 

be appropriate to support a SIP call with 

respect to certain requirements of the 

CAA, e.g., a SIP call for failure to have 

SIP provisions to prevent significant 

contribution to nonattainment in 

another state in accordance with section 

110(a)(2)(D)(i)(I), the EPA does not 

interpret the CAA to require such an 

analysis in all instances. In particular, 

where the substantial inadequacy is 

related to a failure to meet a 

fundamental legal requirement for SIP 

provisions, such as the requirement in 

section 302(k) that emission limitations 

apply continuously, the EPA does not 

believe that such a technical analysis is 

required. 

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330See Memorandum, ‘‘Additional Clarification 

Regarding Application of Appendix W Modeling 

Guidance for the 1-hour NO2 National Ambient Air 

Quality Standard,’’ from T. Fox, EPA/OAQPS, to 

Regional Air Division Directors, March 1, 2011. 331 Id. at 2. 

For example, section 302(k) does not 

differentiate between the legal 

requirements applicable to SIP emission 

limitations for an annual NAAQS versus 

for a 1-hour NAAQS, nor between any 

NAAQS based upon the statistical form 

of the respective standards. In addition 

to being supported by the text of section 

302(k), the EPA’s interpretation of the 

requirement for sources to be subject to 

continuous emission limitations is also 

the most logical given the consequences 

of the commenters’ theory. The 

commenters’ argument provides 

additional practical reasons to support 

the EPA’s interpretation of the CAA to 

preclude exemptions for emissions 

during SSM events from SIP emission 

limitations as a basic legal requirement 

for all emission limitations. 

The EPA agrees that to ascertain the 

specific ambient impacts of emissions 

during a given SSM event can 

sometimes be difficult. This difficulty 

can be exacerbated by factors such as 

exemptions in SIP provisions that not 

only excuse compliance with emission 

limitations but also affect reporting or 

recordkeeping related to emissions 

during SSM events. Determining 

specific impacts of emissions during 

SSM events can be further complicated 

by the fact that the limited monitoring 

network for the NAAQS in many states 

may make it more difficult to establish 

that a given SSM event at a given source 

caused a specific violation of the 

NAAQS. Even if a NAAQS violation is 

monitored, it may be the result of 

emissions from multiple sources, 

including multiple sources having an 

SSM event simultaneously. The 

different averaging periods and 

statistical forms of the NAAQS may 

make it yet more difficult to determine 

the impacts of specific SSM events at 

specific sources, perhaps until years 

after the event occurred. By the 

commenters’ own logic, there could be 

situations in which it is functionally 

impossible to demonstrate definitively 

that emissions during a given SSM 

event at a single source caused a 

specific violation of a specific NAAQS. 

The commenters’ argument, taken to 

its logical extension, could result in 

situations where a SIP emission 

limitation is only required to be 

continuous for purposes of one NAAQS 

but not for another, based on 

considerations such as averaging time or 

statistical form of the NAAQS. Such 

situations could include illogical 

outcomes such as the same emission 

limitation applicable to the same source 

simultaneously being allowed to contain 

exemptions for emissions during SSM 

events for one NAAQS but not for 

another. For example, purely 

hypothetically under the commenters’ 

premise, a given source could 

simultaneously be required to comply 

with a rate-based NOX emission 

limitation continuously for purposes of 

a 1-hour NO2 NAAQS but not be 

required to do so for purposes of an 

annual NO2 NAAQS, or the source 

could be required to comply 

continuously with the same NOx 

limitation for purposes of the 8-hour 

ozone NAAQS and the 24-hour PM2.5

NAAQS but not be required to do so for 

purposes of the annual PM2.5 NAAQS. 

Add to this the further complication 

that the source may be located in an 

area that is designated nonattainment 

for some NAAQS and attainment for 

other NAAQS, and thus subject to 

emission limitations for attainment and 

maintenance requirements 

simultaneously. 

Under the commenters’ premise, the 

same SIP emission limitation, subject to 

the same statutory definition in section 

302(k), could validly include SSM 

exemptions for purposes of some 

NAAQS but not others. Such a system 

of regulation would make it 

unnecessarily hard for regulated 

entities, regulators and other parties to 

determine whether a source is in 

compliance. The EPA does not believe 

that this is a reasonable interpretation of 

the requirements of the CAA, nor of its 

authority under section 110(k)(5). This 

unnecessary confusion is easily resolved 

simply by interpreting the CAA to 

require that a source subject to a SIP 

emission limitation for NOX must meet 

the emission limitation continuously, in 

accordance with the express 

requirement of section 302(k), thus 

making SSM exemptions impermissible. 

The EPA does not agree that the term 

‘‘emission limitation’’ can reasonably be 

interpreted to allow noncontinuous 

emission limitations for some NAAQS 

and not others. The D.C. Circuit has 

already made clear that the term 

‘‘emission limitation’’ means limits that 

apply to sources continuously, without 

exemptions for SSM events. 

Finally, the EPA disagrees with the 

specific arguments raised by 

commenters concerning the modeling 

guidance for the 1-hour NO2 NAAQS.330

As relevant here, that guidance provides 

recommendations about specific issues 

that arise in modeling that is used in the 

PSD program for purposes of 

demonstrating that proposed 

construction will not cause or 

contribute to a violation of the 1-hour 

NO2 NAAQS. Thus, as an initial matter, 

the EPA notes that the context of that 

guidance relates to determining the 

extent of emission reductions that a 

source needs to achieve in order to 

obtain a permit under the PSD program, 

which is distinct from the question of 

whether an emission limitation in a 

permit must assure continuous emission 

reductions. 

The commenters argued that this EPA 

guidance ‘‘allows sources to completely 

exclude all emissions during startup 

and shutdown scenarios.’’ This 

characterization is inaccurate for a 

number of reasons. First, the guidance 

in question is only intended to address 

certain modeling issues related to 

predictive modeling to demonstrate that 

proposed construction will not cause or 

contribute to violation of the 1-hour 

NO2 NAAQS, for purposes of 

determining whether a PSD permit may 

be issued and whether the emission 

limitations in the permit will require 

sufficient emission reductions to avoid 

a violation of this standard. 

Second, to the extent that the 

guidance indicates that air quality 

considerations might in certain 

circumstances and for certain purposes 

be relevant to determining what 

emission limitations should apply to a 

source, that does not mean a source may 

legally have an exemption from 

compliance with existing emissions 

limitations during SSM events. In the 

guidance cited by the commenter, the 

EPA did recommend that under certain 

circumstances, it may be appropriate to 

model the projected impact of the 

source on the NAAQS without taking 

into account ‘‘intermittent’’ emissions 

from sources such as emergency 

generators or emissions from particular 

kinds of ‘‘startup/shutdown’’ 

operations.331 However, the EPA did not 

intend this to suggest that emissions 

from sources during SSM events may 

validly be treated as exempt in SIP 

emission limitations. Within the same 

guidance document, the EPA stated 

unequivocally that the guidance ‘‘has no 

effect on or relevance to existing 

policies and guidance regarding excess 

emissions that may occur during startup 

and shutdown.’’ The EPA explained 

further that ‘‘all emissions from a new 

or modified source are subject to the 

applicable permitted emission limits 

and may be subject to enforcement 

concerning such excess emissions, 

regardless of whether a portion of those 

emissions are not included in the 

modeling demonstration based on the 

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332 Id. at 11. 

333 Id. at 9. 

334See Memorandum, ‘‘Guidance on 

Infrastructure State Implementation Plan (SIP) 

Elements under Clean Air Act Section 110(a)(1) and 

110(a)(2),’’ from Stephen D. Page, Director, OAQPS, 

to Regional Air Directors, Regions 1–10, September 

13, 2013, at page 51 (explaining that a state meets 

section 110(a)(2)(H) by having authority to revise its 

SIP in response to a SIP call). 

335 Id. at 10–11. 

guidance provided here.’’ 332 In other 

words, even if a state elects not to 

include intermittent emissions from 

some types of startup and shutdown 

events in certain modeling exercises, 

this does not mean that sources can be 

excused from compliance with the 

emission limitation during startup and 

shutdown, via an exemption for such 

emissions. 

Third, the guidance does not say that 

all SSM emissions may be considered 

intermittent and excluded from the 

modeling demonstration. The guidance 

explicitly recommends that the 

modeling be based on ‘‘emission 

scenarios that can logically be assumed 

to be relatively continuous or which 

occur frequently enough to contribute 

significantly to the annual distribution 

of daily maximum 1-hour 

concentrations’’ and gives the example 

that it may be appropriate to include 

startup and shutdown emissions from a 

peaking unit at a power plant in the 

modeling demonstration because those 

units go through frequent startup/

shutdown cycles.333 Thus, the guidance 

does not support commenters’ premise 

that the EPA must evaluate the air 

quality impacts from SSM events in SIP 

actions to determine that SSM 

exemptions in SIP provisions are 

substantially inadequate to meet 

fundamental requirements of the CAA. 

8. Comments that this SIP call action 

is inconsistent with 1976 EPA guidance 

for such actions. 

Comment: One commenter argued 

that the EPA misinterpreted the term 

‘‘substantially inadequate’’ in the 

February 2013 proposal because the 

Agency is reading this term differently 

than in the past. In support of this 

contention, the commenter pointed to a 

1976 guidance document from the EPA 

concerning the question of when a SIP 

may be substantially inadequate. The 

commenter argued that the EPA is 

wrong to interpret that term to mean 

anything other than a demonstrated 

failure to provide for factual attainment 

of the NAAQS. According to the 

commenter, the content of the 1976 

guidance indicates that the EPA is 

obligated to conduct a specific analysis 

to determine the air quality impact of an 

alleged inadequacy in a SIP provision 

and to establish and document the 

specific air quality impacts of the 

inadequacy. 

Response: The EPA disagrees with the 

commenter for multiple reasons. First, 

the 1976 document referred to by the 

commenter was the EPA’s guidance on 

the requirements of the CAA as it was 

embodied in 1970, not as Congress 

substantially amended it in 1990. The 

1976 guidance pertained not to the 

current SIP call provision at section 

110(k)(5) but rather to the requirements 

of section 110(a)(2)(H). This is 

particularly significant because the 1990 

CAA Amendments added section 

110(k)(5) to the statute. Although 

section 110(a)(2)(H) remains in the 

statute, it is primarily a requirement 

applicable to state ‘‘infrastructure’’ SIP 

obligations through which states are 

required to have state law authority to 

meet the structural SIP elements 

required in section 110(a)(2).334 In 

reviewing SIPs for compliance with 

section 110(a)(2)(H), the EPA verifies 

that state SIPs include the legal 

authority to respond to any SIP call. By 

contrast, the EPA’s authority to issue a 

SIP call under section 110(k)(5) is 

worded broadly, explicitly including the 

authority to make a finding of 

substantial inadequacy not only for 

failure to attain or maintain the NAAQS 

but also for failures related to interstate 

transport or ‘‘otherwise to comply with 

any requirement of’’ the CAA. 

Second, even setting aside that the 

guidance is not relevant to the EPA’s 

authority under section 110(k)(5), the 

1976 guidance on its face did not 

purport to define the full contours of the 

term ‘‘substantially inadequate’’ in 

section 110(a)(2)(H). The 1976 guidance 

stated explicitly that ‘‘it is difficult to 

develop comprehensive guidelines for 

all cases’’ and only listed ‘‘[s]ome 

factors that could be considered’’ in 

evaluating whether a state’s SIP is 

substantially inadequate.335 While the 

EPA acknowledges that these factors 

were primarily focused upon ambient 

air considerations as suggested by the 

commenter, they were not limited to 

that topic. Moreover, the EPA stated that 

factors ‘‘other than air quality and 

emission data must be considered’’ and 

provided several examples, including 

potential amendments to the CAA under 

consideration at that point in time that 

might change state SIP obligations and 

thus create the need for a SIP call. More 

significantly, nothing in the 1976 

guidance indicated that the EPA should 

or would ignore legal deficiencies in 

existing SIP provisions or that legal 

deficiencies are not relevant to the 

question of whether a SIP would 

provide for attainment of the NAAQS. 

Third, the EPA notes that the 

commenter did not advocate that the 

Agency follow the 1976 guidance with 

respect to other issues, e.g., that the EPA 

would initiate the obligations of states 

to revise their SIPs simply by making an 

announcement of substantial 

inadequacy ‘‘without proposal’’; that 

states would be required to make the 

necessary SIP revision within 12 

months; or that states should make 

those revisions by no later than July 1, 

1977. 

The EPA has fully articulated its 

interpretation of the term ‘‘substantial 

inadequacy’’ in section 110(k)(5) in the 

February 2013 proposal. As explained 

in the proposal, the EPA interprets its 

current authority to include the 

issuance of a SIP call for the types of 

legal deficiencies identified in this 

action. In order to establish that these 

legal deficiencies are substantial 

inadequacies, the EPA does not 

interpret section 110(k)(5) to require the 

Agency to document precisely how each 

deficiency factually undermines the 

objectives of the CAA, such as 

attainment and maintenance of the 

NAAQS in a particular location on a 

particular date. It is sufficient that these 

provisions are inconsistent with the 

legal requirements for SIP provisions set 

forth in the CAA that are intended to 

assure that SIPs in fact do achieve the 

intended objectives. 

10. Comments that because the EPA 

has misinterpreted the statutory terms 

‘‘emission limitation’’ and 

‘‘continuous,’’ the EPA has not 

established a substantial inadequacy. 

Comment: Many state and industry 

commenters disagreed with the EPA’s 

interpretation of the CAA to prohibit 

SSM exemptions in SIP provisions. 

These arguments took many tacks, based 

on the interpretation of various statutory 

provisions, the applicability of the court 

decision in Sierra Club v. Johnson, 

alleged inconsistencies related to this 

requirement in the EPA’s own NSPS 

and NESHAP regulations and a variety 

of other arguments. In particular, many 

commenters argued that the EPA was 

misinterpreting the statutory terms 

‘‘emission limitation’’ and ‘‘continuous’’ 

in section 302(k) to preclude automatic 

or discretionary exemptions for 

emissions during SSM events in SIP 

provisions. As an extension of these 

arguments, commenters also argued that 

the EPA lacks authority under section 

110(k)(5) to issue a SIP call when it has 

incorrectly interpreted a relevant 

statutory term as the basis for finding a 

SIP provision to be substantially 

inadequate. 

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336CAA section 110(k)(5) states that ‘‘[w]henever 

the [EPA] finds that the applicable implementation 

plan for any area is substantially inadequate to 

attain or maintain the relevant [NAAQS], to 

mitigate adequately [ ] interstate pollutant transport 

. . ., or to otherwise comply with any requirement 

of [the CAA], the [EPA] shall require the State to 

revise the plan as necessary to correct such 

inadequacies.’’ Section 110(l) states that, in the 

event a state submits a SIP revision, the EPA ‘‘shall 

not approve a revision of a plan if the revision 

would interfere with any applicable requirement 

concerning attainment and reasonable further 

progress . . . or any other applicable requirement 

of [the CAA].’’ Section 110(k)(3) states that the EPA 

‘‘shall approve such submittal . . . if it meets all 

the requirements of [the CAA].’’ 

337See February 2013 proposal, 78 FR 12459 at 

12483–88. 

Response: The EPA disagrees that it 

lacks authority to issue this SIP call on 

the grounds claimed by the commenters. 

As explained in detail in the February 

2013 proposal and in this final action, 

the EPA has long interpreted the CAA 

to preclude SSM exemptions in SIP 

provisions. This interpretation has been 

stated by the EPA since at least 1982, 

reiterated in subsequent SSM Policy 

guidance documents, applied in a 

number of notice and comment 

rulemakings and upheld by courts. 

With respect to the arguments that the 

EPA has incorrectly interpreted the 

terms ‘‘emission limitation’’ and 

‘‘continuous’’ in this action, the EPA 

has responded in detail in section 

VII.A.3 of this document and need not 

repeat those responses here. In short, 

the EPA is interpreting those terms 

consistent with the relevant statutory 

language and consistent with the 

decision of the court in Sierra Club v. 

Johnson. Because the specific SIP 

provisions identified in this action with 

automatic or discretionary exemptions 

for emissions during SSM events do not 

limit emissions from the affected 

sources continuously, the EPA has 

found these provisions substantially 

inadequate to meet CAA requirements 

in accordance with section 110(k)(5). 

11. Comments that section 110(k)(5) 

imposes a ‘‘higher burden of proof’’ 

upon the EPA than section 110(l) and 

that section 110(l) requires the EPA to 

conduct a specific technical analysis of 

the impacts of a SIP revision. 

Comment: Commenters argued that 

the EPA is misinterpreting section 

110(k)(5) to authorize a SIP call using a 

lower ‘‘standard’’ than the section 110(l) 

‘‘standard’’ that requires disapproval of 

a new SIP provision in the first instance. 

The commenters stated that section 

110(k)(5) requires a determination by 

the EPA that a SIP provision is 

‘‘substantially inadequate’’ to meet CAA 

requirements in order to authorize a SIP 

call, whereas section 110(l) provides 

that the EPA must disapprove a SIP 

revision provision only if it ‘‘would 

interfere with’’ CAA requirements. 

Thus, the commenters asserted that ‘‘the 

SIP call standard is higher than the SIP 

revision standard.’’ The commenters 

further argued that it would be ‘‘illogical 

and contrary to the CAA to interpret 

section 110 to establish a lower standard 

for calling a previously approved SIP 

and demanding revisions to it than for 

disapproving that SIP in the first place.’’ 

For purposes of section 110(l), the 

commenters claimed, the EPA ‘‘is 

required’’ to rely on specific ‘‘data and 

evidence’’ that a given SIP revision 

would interfere with CAA requirements 

and this requirement is thus imposed by 

section 110(k)(5) as well. In support of 

this reasoning, the commenters relied 

on prior court decisions pertaining to 

the requirements of section 110(l). 

Response: The EPA disagrees with the 

commenters’ interpretations of the 

relative ‘‘standards’’ of section 110(k)(5) 

and section 110(l) and with the 

commenters’ views on the court 

decisions pertaining to section 110(l). In 

addition, the EPA notes that the 

commenters did not fully address the 

related requirements of section 110(k)(3) 

concerning approval and disapproval of 

SIP provisions, of section 302(k) 

concerning requirements for emission 

limitations or of any other sections of 

the CAA that are substantively germane 

to specific SIP provisions and to 

enforcement of SIP provisions in 

general.336

The commenters argued that, by the 

‘‘plain language’’ of the CAA and 

because of ‘‘common sense,’’ Congress 

intended the section 110(k)(5) SIP call 

standard to be ‘‘higher’’ than the section 

110(l) SIP revision. The EPA disagrees 

that this is a question resolved by the 

‘‘plain language.’’ To the contrary, the 

three most relevant statutory provisions, 

section 110(k)(3), section 110(l), and 

section 110(k)(5), are each to some 

degree ambiguous and are likewise 

ambiguous with respect to how they 

operate together to apply to newly 

submitted SIP provisions versus existing 

SIP provisions. Section 110(k)(3) 

requires the EPA to approve a newly 

submitted SIP provision ‘‘if it meets all 

of the applicable requirements of [the 

CAA].’’ Implicitly, the EPA is required 

to disapprove a SIP provision if it does 

not meet all applicable CAA 

requirements. Section 110(l) provides 

that the EPA may not approve any SIP 

revision that ‘‘would interfere with . . . 

any other applicable requirement of [the 

CAA].’’ Section 110(k)(5) provides that 

the EPA shall issue a SIP call 

‘‘whenever’’ the Agency finds an 

existing SIP provision ‘‘substantially 

inadequate . . . to otherwise comply 

with [the CAA].’’ None of the core terms 

in each of the three provisions is 

defined in the CAA. Thus, whether the 

‘‘would interfere with’’ standard of 

section 110(l) is per se a ‘‘lower’’ 

standard than the ‘‘substantially 

inadequate’’ standard of section 

110(k)(5) as advocated by the 

commenters is not clear on the face of 

the statute, and thus the EPA considers 

these terms ambiguous. 

As explained in detail in the February 

2013 proposal, the EPA interprets its 

authority under section 110(k)(5) 

broadly to include authority to require 

a state to revise an existing SIP 

provision that fails to meet fundamental 

legal requirements of the CAA.337 The 

commenters raise a valid point that 

section 110(l) and section 110(k)(5), as 

well as section 110(k)(3), facially appear 

to impose somewhat different standards. 

However, the EPA does not agree that 

the proper comparison is necessarily 

between section 110(k)(5) and section 

110(l) but instead would compare 

section 110(k)(5) and section 110(k)(3). 

Section 110(l) is primarily an ‘‘antibacksliding’’ provision, meant to assure 

that if a state seeks to revise its SIP to 

change existing SIP provisions that the 

EPA has previously determined did 

meet CAA requirements, then there 

must be a showing that the revision of 

the existing SIP provisions (e.g., a 

relaxation of an emission limitation) 

would not interfere with attainment of 

the NAAQS, reasonable further progress 

or any other requirement of the CAA. By 

contrast, section 110(k)(3) is a more 

appropriate point of comparison 

because it directs the EPA to approve a 

SIP provision ‘‘that meets all applicable 

requirements’’ of the CAA and section 

110(k)(5) authorizes the EPA to issue a 

SIP call for previously approved SIP 

provisions that it later determines do 

not ‘‘comply with any requirement’’ of 

the CAA. 

Notwithstanding that each of these 

three statutory provisions applies to 

different stages of the SIP process, all 

three of them explicitly make 

compliance with the legal requirements 

of the CAA a part of the analysis. At a 

minimum, the EPA believes that 

Congress intended these three sections, 

working together, to ensure that SIP 

provisions must meet all applicable 

legal CAA requirements when they are 

initially approved and to ensure that SIP 

provisions continue to meet CAA 

requirements over time, allowing for 

potential amendments to the CAA, 

changes in interpretation of the CAA by 

the EPA or courts or simply changed 

facts. With respect to compliance with 

the applicable legal requirements of the 

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338See 467 F.3d 986 (6th Cir. 2006). 

339See 467 F.3d at 995 (rejecting claim that 

section 110(l) required a modeled attainment 

demonstration to prove that the SIP revision would 

meet applicable CAA requirements). 

340The EPA notes that the one exception to this, 

of course, is the Agency’s recent approval of new 

SIP provisions in Texas that created an affirmative 

defense for malfunctions. As discussed elsewhere 

in this document, however, the EPA has determined 

that such provisions do not meet CAA requirements 

and is thus issuing a SIP call for those provisions. 

341See 690 F.3d 1157 (10th Cir. 2012). 

342 Id., 690 F.3d 1167, n.3. 

343 Id., 690 F.3d at 1159–63. 

CAA, the EPA does not interpret section 

110(k)(5) as setting a per se ‘‘higher’’ 

standard. Under section 110(l), the EPA 

is likewise directed not to approve a SIP 

revision that is not consistent with legal 

requirements imposed by the CAA, 

including those relevant to SIP 

provisions such as section 302(k). 

Pursuant to section 110(l), the EPA 

would not be authorized to approve a 

SIP revision that contradicts 

requirements of the CAA; pursuant to 

section 110(k)(5) the EPA is authorized 

to direct states to correct a SIP provision 

that it later determines does not meet 

the requirements of the CAA. 

The EPA also disagrees with the 

commenters’ characterization of the 

requirements of section 110(l) and their 

arguments based on court decisions 

concerning section 110(l). Commenters 

rely on the decision in Ky. Res Council 

v. EPA to support their argument that 

section 110(l) requires the EPA to 

disapprove a SIP revision only if it 

‘‘would interfere’’ with a requirement of 

the CAA, not if it ‘‘could interfere’’ with 

such requirements.338 From this 

decision, the commenters argue that the 

EPA is required to conduct a specific 

technical analysis under section 110(l) 

to determine the specific impacts of the 

revision on attainment and maintenance 

of the NAAQS and argue that by 

inference this must therefore also be 

required by section 110(k)(5). To the 

extent that court decisions concerning 

section 110(l) are relevant, these court 

decisions do not support the 

commenters’ position. 

First, the EPA notes that the 

commenters mischaracterize section 

110(l) as requiring a particular form or 

method of analysis to support approval 

or disapproval of a SIP revision. Section 

110(l) does not contain any such 

explicit requirement or specifications. 

The EPA interprets section 110(l) only 

to require an analysis that is appropriate 

for the particular SIP revision at issue, 

and that analysis can take different 

forms or different levels of complexity 

depending on the facts and 

circumstances relevant to the SIP 

revision. Like section 110(l), the EPA 

believes that section 110(k)(5) does not 

specify a particular form of analysis 

necessary to find a SIP provision 

substantially inadequate. 

Second, the commenters 

mischaracterize the primary decision 

that they rely upon. The court in Ky. Res 

Council v. EPA expressly discussed the 

fact that section 110(l) does not specify 

precisely how any such analysis should 

be conducted and deferred to the EPA’s 

reasonable interpretation of what form 

of analysis is appropriate for a given SIP 

revision.339 Indeed, the decision stands 

for the proposition that the EPA does 

not necessarily have to develop an 

attainment demonstration in order to 

evaluate the impacts of a SIP revision, 

i.e. ‘‘prove’’ whether the revision will 

interfere with attainment, maintenance, 

reasonable further progress or any other 

requirements of the CAA. Thus, the 

commenters’ argument that section 

110(k)(5) has to require a specific 

technical analysis of impacts on 

attainment and maintenance because 

section 110(l) does so is simply in error. 

Third, the section 110(1) cases cited 

by the commenters did not involve SIP 

revisions in which states sought to 

change existing SIP provisions so that 

they would fail to meet the specific 

CAA requirements at issue in this 

action. For example, none of the cases 

involved the EPA’s approval of a new 

automatic exemption for emissions 

during SSM events. Had the state 

submitted a SIP revision that failed to 

meet applicable requirements of the 

CAA for SIP provisions, such as 

changing existing SIP emission 

limitations so that they would thereafter 

include SSM exemptions, then the EPA 

would have had to disapprove them.340

The challenged rulemaking actions at 

issue in the cases relied upon by the 

commenters involved SIP revision 

changes unrelated to the specific legal 

requirements at issue in this action. 

Accordingly, the EPA’s evaluation of 

those SIP revisions focused upon other 

issues, such as whether the revision 

would factually result in emissions that 

would interfere with attainment and 

maintenance of the NAAQS, that were 

relevant to the particular provisions at 

issue in those cases. 

12. Comments that the EPA is 

misinterpreting US Magnesium and that 

the decision provides no precedent for 

this action. 

Comment: A number of industry 

commenters argued that the EPA’s 

reliance on the decision of the Tenth 

Circuit in US Magnesium, LLP v. EPA is 

misplaced.341 According to the 

commenters, the EPA did not correctly 

interpret the decision and is 

misapplying it in acting upon the 

Petition. The commenters asserted that 

the decision provides no precedent for 

this action because it was decided upon 

issues different from those at issue here. 

Commenters also argued that the court 

did not reach an important issue 

because the petitioner had failed to 

comment on it, i.e., the argument that 

the EPA had not defined the term 

‘‘substantially inadequate’’ in the 

rulemaking.342

Response: The EPA disagrees with the 

commenters on this point. The EPA of 

course acknowledges that the court in 

US Magnesium did not address the full 

range of issues related to the correct 

treatment of emissions during SSM 

events in SIP provisions that were 

raised in the Petition, e.g., the court did 

not need to address the legal basis for 

affirmative defense provisions in SIPs 

because of the nature of the SIP 

provisions at issue in that case. 

However, the US Magnesium court 

evaluated many of the same key 

questions raised in this rulemaking and 

reached decisions that are very relevant 

to this action. 

First, the US Magnesium court 

specifically upheld the EPA’s SIP call 

action requiring the state to remove or 

revise a SIP provision that included an 

automatic exemption for emissions from 

sources during ‘‘upsets,’’ i.e., 

malfunctions. In doing so, the court was 

fully aware of the reasons why the EPA 

interprets the CAA to prohibit such 

exemptions, because they violate 

statutory requirements including section 

302(k), section 110(a)(2)(A) and (C), and 

other requirements related to attainment 

and maintenance of the NAAQS. The 

court explained at length the EPA’s 

reasoning about why the SIP provisions 

were inconsistent with CAA 

requirements for SIP provisions.343

Second, the court specifically upheld 

the EPA’s SIP call action requiring the 

state to revise its SIP to remove or revise 

another SIP provision that could be 

interpreted to give state personnel the 

authority to determine unilaterally 

whether excess emissions from sources 

are a violation of the applicable 

emission limitation and thereby 

preclude any enforcement action by the 

EPA or citizens. 

Third, the court also upheld the EPA’s 

authority to issue a SIP call requiring a 

state ‘‘to clarify language in the SIP that 

could be read to violate the CAA, when 

a court has not yet interpreted the 

language in that way.’’ Indeed, the court 

opined that ‘‘in light of the potential 

conflicts’’ between competing 

interpretations of the SIP provision, 

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344 Id., 690 F.3d at 1170. 

345 Id., 690 F.3d at 1168. 

346 Id., 690 F.3d at 1168. 

347 Id., 690 F.3d at 1169. 

348 Id., 690 F.3d at 1170. 

349The EPA notes that other commenters on the 

February 2013 proposal made similar arguments 

with respect to affirmative defense provisions in 

their SIPs, asserting that other SIP provisions or 

terms in permits provided additional criteria that 

would have made the affirmative defense 

provisions at issue consistent with the EPA’s 

interpretation of the CAA in the 1999 SSM 

Guidance. See, e.g., Comment from Virginia 

Department of Environmental Quality at 1–2, in the 

rulemaking docket at EPA–HQ–OAR–2012–0322– 

0613. Because the EPA no longer interprets the 

CAA to allow any affirmative defense provisions, 

these comments are not germane. 

350See US Magnesium, LLC v. EPA, 690 F.3d 

1157, 1169 (10th Cir. 2012). 

‘‘seeking revision of the SIP was 

prudent, not arbitrary or capricious.’’ 344

Fourth, the court explicitly upheld 

the EPA’s reasonable interpretation of 

section 110(k)(5) to authorize a SIP call 

when a state’s SIP provision is 

substantially inadequate to meet 

applicable legal requirements, without 

making ‘‘specific factual findings’’ that 

the deficient provision resulted in a 

NAAQS violation. The EPA interpreted 

the CAA to allow a SIP call if the 

Agency ‘‘determined that aspects of the 

SIP undermine the fundamental 

integrity of the CAA’s SIP process and 

structure, regardless of whether or not 

the EPA could point to specific 

instances where the SIP allowed 

violations of the NAAQS.’’ The US 

Magnesium court explicitly agreed that 

section 110(k)(5) authorizes issuance of 

a SIP call ‘‘where the EPA determines 

that a SIP is no longer consistent with 

the EPA’s understanding of the 

CAA.’’ 345

Fifth, the court rejected claims that 

the EPA was requiring states to comply 

with the SSM Policy guidance rather 

than the CAA requirements, and the 

court noted that the Agency had 

undertaken notice-and-comment 

rulemaking to evaluate whether the SIP 

provisions at issue were consistent with 

CAA requirements.346

Sixth, the court rejected the claim that 

the EPA was interpreting the 

requirements of the CAA incorrectly 

because the EPA is in the process of 

bringing its own NSPS and NESHAP 

regulations into line with CAA 

requirements for emission limitations, 

in accordance with the Sierra Club v. 

Johnson decision.347 The court noted 

that the EPA is now correcting SSM 

exemptions in its own regulations, and 

thus its prior interpretation of the CAA, 

rejected by the court in Sierra Club v. 

Johnson, did not make the SIP call to 

Utah arbitrary and capricious.348

On these and many other issues, the 

EPA believes that the court’s decision in 

US Magnesium provides an important 

and correct precedent for the Agency’s 

interpretation of the CAA in this action. 

The commenters’ apparent disagreement 

with the court does not mean that the 

decision is not relevant to this action. 

The commenters specifically argued that 

the US Magnesium court did not reach 

the issue of whether the EPA had 

‘‘defined’’ the term ‘‘substantial 

inadequacy’’ in the challenged 

rulemaking because the petitioner had 

not raised this point in comments. The 

EPA does not necessarily agree that 

‘‘defining’’ the full contours of the term 

is a necessary step for a SIP call, but 

regardless of that fact the Agency did 

explain its interpretation of the term 

‘‘substantial inadequacy’’ with respect 

to the SIP provisions at issue in the 

February 2013 proposal, the SNPR and 

this final action. 

13. Comments that EPA has to 

evaluate a SIP ‘‘as a whole’’ to have the 

authority to issue a SIP call. 

Comment: Many state and industry 

commenters argued that the EPA cannot 

evaluate individual SIP provisions in 

isolation and that the Agency is 

required to evaluate the entire SIP and 

any related permit requirements in 

order to determine if a specific SIP 

provision is substantially inadequate. In 

particular, some commenters argued 

that the EPA was wrong to focus upon 

the exemptions in SIP emission 

limitations for emissions during SSM 

events without considering whether 

some other requirement of the SIP or of 

a permit might operate to override or 

otherwise modify the exemptions. Many 

of the commenters asserted that other 

‘‘general duty’’ clause requirements, 

elsewhere in other SIP provisions or in 

permits for individual sources, make the 

SSM exemptions in SIP emission 

limitations valid under the CAA.349

These other requirements were often 

general duty-type standards that require 

sources to minimize emissions, to 

exercise good engineering judgment or 

not to cause a violation of the NAAQS. 

The implication of the commenters’ 

arguments is that such general-duty 

requirements legitimize an SSM 

exemption in a SIP emission 

limitation—even if they are not 

explicitly a component of the SIP 

provision, if they are not incorporated 

by reference in the SIP provision and if 

they are not adequate to meet the 

applicable substantive requirements for 

that type of SIP provision. 

Response: The EPA disagrees with the 

basic premise of the commenters that 

the EPA cannot issue a SIP call directing 

a state to correct a facially deficient SIP 

provision without first determining 

whether an unrelated and not crossreferenced provision of the SIP or of a 

permit might potentially apply in such 

a way as to correct the deficiency. As 

explained in section VII.A.3 of this 

document, the EPA believes that all SIP 

provisions must meet applicable 

requirements of the CAA, including the 

requirement that they apply 

continuously to affected sources. In 

reviewing the specific SIP provisions 

identified in the Petition, the EPA 

determined that many of the provisions 

include explicit automatic or 

discretionary exemptions for emissions 

during SSM events, whether as a 

component of an emission limitation or 

as a provision that operates to override 

the otherwise applicable emission 

limitation. Based on the EPA’s review of 

these provisions, neither did they apply 

‘‘continuously’’ as required by section 

302(k) nor did they include crossreferences to any other limitations that 

applied during such exempt periods to 

potentially provide continuous 

limitations. To the extent that the SIP of 

a state contained any other requirements 

that applied during such periods, that 

fact was not plain on the face of the SIP 

provision. If the EPA was unable to 

ascertain what, if anything, applied 

during these explicitly exempt periods, 

then the Agency concludes that 

regulated entities, members of and the 

public, and the courts will have the 

same problem. The EPA has authority 

under section 110(k)(5) to issue a SIP 

call requiring a state to clarify a SIP 

provision that is ambiguous or unclear 

such that the provision can lead to 

misunderstanding and thereby interfere 

with effective enforcement.350

To the extent that an affected state 

believes that the EPA has overlooked 

another valid provision of the SIP that 

would cure the substantial inadequacy 

that the Agency has identified in this 

action, the state may seek to correct the 

deficient SIP provision by properly 

revising it to remove the impermissible 

exemption or affirmative defense and 

replacing it with the requirements of the 

other SIP provision or by including a 

clear cross-reference that clarifies the 

applicability of such provision as a 

component of the specific emission 

limitation at issue. The state should 

make this revision in such a way that 

the SIP emission limitation is clear on 

its face as to what the affected sources 

are required to do during all modes of 

operation. The emission limitation 

should apply continuously, and what is 

required by the emission limitation 

under any mode of operation should be 

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351The EPA’s reliance on interpretations of the 

CAA in the SSM Policy through notice-andcomment rulemakings has previously been upheld 

by several courts. See, e.g., US Magnesium, LLC v. 

EPA, 690 F.3d 1157, 1168 (10th Cir. 2012) 

(upholding the EPA’s SIP call to Utah for existing 

SIP provisions); Mich. Dep’t of Envtl. Quality v. 

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

the EPA’s disapproval of a SIP submission). 

352See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans and Designation of Areas for 

Air Quality Planning Purposes; State of Arizona; 

readily ascertainable by the regulated 

entities, the regulators and the public. 

The EPA emphasizes, however, that 

each revised SIP emission limitation 

must meet the substantive requirements 

applicable to that type of provision (e.g., 

impose RACM/RACT-level controls on 

sources located in nonattainment areas) 

and must be legally and practically 

enforceable (e.g., have sufficient 

recordkeeping, reporting and 

monitoring requirements). The revised 

SIP emission limitation must be 

consistent with all applicable CAA 

requirements. 

14. Comments that the EPA 

inappropriately is ‘‘using guidance’’ as a 

basis for the SIP call action. 

Comment: State and industry 

commenters asserted that the EPA is 

relying on guidance as the basis for 

issuing this SIP call action and argued 

that the EPA cannot issue a SIP call 

based on guidance. The commenters 

argued that the EPA guidance provided 

in the SSM Policy is not binding and 

that states thus have the flexibility to 

develop SIP provisions that are not in 

conformance with EPA guidance. Some 

commenters claimed that if the EPA 

wishes to make the interpretations of 

the CAA in its SSM Policy binding upon 

states, then it must do so through a 

notice-and-comment rulemaking and 

must codify those requirements in 

binding regulations in the CFR. The 

commenters argued that states should 

not be subject to a SIP call for existing 

provisions in their SIPs on the basis that 

they do not conform to guidance in the 

SSM Policy. Some commenters 

acknowledged that the EPA is providing 

notice and comment on its SSM Policy 

through this action, but still they 

contended that the EPA’s interpretation 

of the CAA is not binding upon states 

unless the Agency codifies its updated 

SSM Policy in regulations in the CFR. 

Response: The EPA disagrees with 

arguments that the Agency has acted 

inappropriately by relying on its 

interpretations of the CAA set forth in 

the SSM Policy in issuing this SIP call. 

As explained in the February 2013 

proposal, the SSM Policy is merely 

guidance. It is correct that guidance 

documents are nonbinding. However, 

the guidance provides the EPA’s 

recommendations concerning how best 

to interpret the statutory requirements 

of the CAA that are binding. Moreover, 

the EPA’s interpretation of the CAA in 

the SSM Policy can become binding 

once the Agency adopts and applies that 

interpretation through notice-andcomment rulemaking. The EPA is 

issuing this SIP call action through 

notice-and-comment rulemaking and 

has specifically taken comment on its 

interpretations of the CAA as they apply 

to the specific SIP provisions at issue in 

this action. Thus, the EPA is requiring 

the affected states to comply with the 

requirements of the CAA, not with the 

SSM Policy guidance itself.351

The EPA also disagrees with 

commenters that in order to rely on its 

interpretation of the CAA in the SSM 

Policy, the EPA must first issue 

regulatory provisions applicable to SIP 

provisions. There is no such general 

obligation for the EPA to codify its 

interpretations of the CAA in regulatory 

text. Unless Congress has specifically 

directed the EPA to promulgate 

regulations for a particular purpose, the 

EPA has authority and discretion to 

promulgate such regulations as it deems 

necessary or helpful in accordance with 

its authority under section 301. With 

respect to issues concerning proper 

treatment of excess emissions during 

SSM events in SIP provisions, the EPA 

has historically proceeded by issuance 

of guidance documents. In this action, 

the EPA is undergoing notice-andcomment rulemaking to update and 

revise its guidance and to apply that 

guidance to specific existing SIP 

provisions. Thus, the EPA is not 

required to promulgate specific 

implementing regulations as a 

precondition to making a finding of 

substantial inadequacy to address 

existing deficient SIP provisions. 

15. Comments that the EPA’s 

redesignation and approval of a 

maintenance plan for an area in a state 

with a SIP that has provisions at issue 

in the SIP call establishes that all 

provisions in the SIP meet CAA 

requirements. 

Comment: Commenters argued that 

the ‘‘EPA’s allegations that SSM 

provisions could threaten the NAAQS is 

contradicted by’’ the fact that the ‘‘EPA 

has consistently approved redesignation requests and attainment and 

maintenance plans, notwithstanding 

SSM provisions.’’ According to these 

commenters, ‘‘[t]he fact that EPA has 

already approved numerous redesignation requests . . . indicates that 

EPA has already (and in many cases, 

very recently) admitted that the [State 

SIPs are] fully approved, sufficient to 

achieve the NAAQS, and fully 

enforceable.’’ The commenters argued 

that the appropriate time for the EPA to 

have addressed any issues concerning 

deficient SIP provisions applicable to 

emissions during SSM events was ‘‘in 

the context of its review and approval 

of [maintenance] plans.’’ Because the 

EPA has been approving maintenance 

plans for areas in states subject to this 

SIP call action, the commenters 

believed, this ‘‘is evidence that the 

Agency has not viewed SSM-related 

emissions as a threat to attainment or 

maintenance of the NAAQS.’’ In 

essence, these commenters argued that 

the EPA’s redesignation of any area in 

any of the states at issue in this 

rulemaking indicates that the SIPs of 

these states fully meet all CAA 

requirements and that there are no 

deficiencies whatsoever in the SIPs of 

these states. 

Response: The EPA disagrees with the 

commenters’ premise that the Agency’s 

approval of redesignation requests and 

maintenance plans for certain 

nonattainment areas, notwithstanding 

the presence of impermissible 

provisions related to emissions during 

SSM events that may have been present 

in the SIP for those areas, is evidence 

that the EPA does not view SSM-related 

emissions as a threat to attainment or 

maintenance of the NAAQS. Contrary to 

the theory of the commenters, the EPA’s 

redesignation of an area to attainment 

does not mean that the SIP for the state 

in question fully meets each and every 

requirement of the CAA. 

The CAA sets forth the general criteria 

for redesignation of an area from 

nonattainment to attainment in section 

107(d)(3)(E). These criteria include a 

determination by the EPA that the area 

has attained the relevant standard 

(section 107(d)(3)(E)(i)) and that the 

EPA has fully approved the applicable 

implementation plan for the area for 

purposes of redesignation (section 

107(d)(3)(E)(ii) and (v)). The EPA must 

also determine that the improvement in 

air quality in the area is due to 

reductions that are permanent and 

enforceable (section 107(d)(3)(E)(iii)) 

and that the EPA has fully approved a 

maintenance plan for the area under 

section 175A (section 107(d)(3)(E)(iv)). 

For purposes of redesignation, the 

EPA has long held that SIP requirements 

that are not linked with a particular 

nonattainment area’s designation and 

classification, including certain section 

110 requirements, are not ‘‘applicable’’ 

for purposes of evaluating compliance 

with the specific redesignation criteria 

in CAA sections 107(d)(3)(E)(ii) and 

(v).352 The EPA maintains this 

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Redesignation of the Phoenix-Mesa Nonattainment 

Area to Attainment for the 1997 8-Hour Ozone 

Standard; Proposed rule,’’ 79 FR 16734 at 16739 

n.22 (March 26, 2014). 

353See, e.g., 73 FR 22307 at 22312–13 (April 25, 

2008) (proposed redesignation of San Joaquin 

Valley; the EPA concluded that section 110(a)(2)(D) 

transport requirements are not applicable under 

section 110(d)(3)(E)(v) because they ‘‘continue to 

apply to a state regardless of the designation of any 

one particular area in the state’’); 62 FR 24826 at 

24829–30 (May 7, 1997) (redesignation of Reading, 

Pennsylvania, Area; the EPA concluded that the 

additional controls required by section 184 were 

not ‘‘applicable’’ for purposes of section 

107(d)(3)(E) because ‘‘they remain in force 

regardless of the area’s redesignation status’’). 

354See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 

2004); Wall v. EPA, 265 F.3d 426, 438 (6th Cir. 

2001). But see Sierra Club v. EPA, Nos. 12–3169, 

12–3182, 12–3420 (6th Cir. Mar. 18, 2015), petition 

for reh’g en banc filed. 

355 79 FR 55645 (September 17, 2014). 

356 Id. at 55648. The EPA notes that it has 

included the deficient SIP provisions that include 

the affirmative defenses in this action, thereby 

illustrating that it can take action to address a SIP 

deficiency separately from the redesignation action, 

where appropriate. 

357See Southwestern Pennsylvania Growth 

Alliance v. EPA, 114 F.3d 984 (6th Cir. 1998) 

(Redesignation of Cleveland-Akron-Lorain area 

determined valid even though the Agency 

subsequently proposed a SIP call to require Ohio 

and other states to revise their SIPs to mitigate 

ozone transport to other states). 

358See 77 FR 76883 (December 31, 2012). 

359 Id. at 76891–92. 

360The EPA notes that the provisions at issue in 

the redesignation action are included in this SIP 

call, thus illustrating that the Agency can address 

these deficient provisions in a context other than 

a redesignation request. 

361 74 FR 62717 (December 1, 2009). 

interpretation because these 

requirements remain applicable after an 

area is redesignated to attainment. For at 

least the past 15 years, the EPA has 

applied this interpretation with respect 

to requirements to which a state will 

continue to be subject after the area is 

redesignated.353 Courts reviewing the 

EPA’s interpretation of the term 

‘‘applicable’’ in section 107(d)(3) in the 

context of requirements applicable for 

redesignation have generally agreed 

with the Agency.354

The EPA therefore approves 

redesignation requests in many 

instances without passing judgment on 

every part of a state’s existing SIP, if it 

finds those parts of the SIP are not 

‘‘applicable’’ for purposes of section 

107(d)(3). For example, the EPA 

recently approved Arizona’s request to 

redesignate the Phoenix-Mesa 1997 8- 

hour ozone nonattainment area and its 

accompanying maintenance plan, while 

recognizing that Arizona’s SIP may 

contain affirmative defense provisions 

that are not consistent with CAA 

requirements.355 In that case, the EPA 

explicitly noted that approval of the 

redesignation of the Phoenix-Mesa 

nonattainment area did not relieve 

Arizona or Maricopa County of its 

obligation to remove the affirmative 

defense provisions from the SIP, if the 

EPA was to take later action to require 

correction of the Arizona SIP with 

respect to those provisions.356

The EPA also disagrees with 

commenters to the extent they suggest 

that the Agency must use the 

redesignation process to evaluate 

whether any existing SIP provisions are 

legally deficient. The EPA has other 

statutory mechanisms through which to 

address existing deficiencies in a state’s 

SIP, and courts have agreed that the 

EPA retains the authority to issue a SIP 

call to a state pursuant to CAA section 

110(k)(5) even after redesignation of a 

nonattainment area in that state.357 The 

EPA recently addressed this issue in the 

context of redesignating the Ohio 

portion of the Huntington-Ashland 

(OH–WV–KY) nonattainment area to 

attainment for the PM2.5 NAAQS.358 In 

response to comments challenging the 

proposed redesignation due to the 

presence of certain SSM provisions in 

the Ohio SIP, the EPA concluded that 

the provisions at issue did not provide 

a basis for disapproving the 

redesignation request.359 In so 

concluding, the EPA noted that the SSM 

provisions and related SIP limitations at 

issue in that state were already 

approved into the SIP and thus 

‘‘permanent and enforceable’’ for the 

purposes of meeting section 

107(d)(3)(E)(iii) and that the Agency has 

other statutory mechanisms for 

addressing any problems associated 

with the SSM provisions.360 The EPA 

emphasizes that the redesignation of 

areas to attainment does not relieve 

states of the responsibility to remove 

legally deficient SIP provisions either 

independently or pursuant to a SIP call. 

To the contrary, the EPA maintains that 

it may determine that deficient 

provisions such as exemptions or 

affirmative defense provisions 

applicable to SSM events are contrary to 

CAA requirements and take action to 

require correction of those provisions 

even after an area is redesignated to 

attainment for a specific NAAQS. This 

interpretation is consistent with prior 

redesignation actions. 

In some cases, the EPA has stated that 

the presence of illegal SSM provisions 

does constitute grounds for denying a 

redesignation request. For example, the 

EPA issued a proposed disapproval of 

Utah’s redesignation requests for Salt 

Lake County, Utah County and Ogden 

City PM10 nonattainment areas.361

However, the specific basis for the 

proposed disapproval in that action, 

which was one of many SIP deficiencies 

identified by EPA, was the state’s 

inclusion in the submission of new 

provisions not previously in the SIP that 

would have provided blanket 

exemptions from compliance with 

emission standards during SSM events. 

Those SSM exemptions were not in the 

previously approved SIP, and the EPA 

declined to approve them in connection 

with the redesignation request because 

such provisions are inconsistent with 

CAA requirements. In most 

redesignation actions, states have not 

sought to create new SIP provisions that 

are inconsistent with CAA requirements 

as part of their redesignation requests or 

maintenance plans. 

Finally, the EPA disagrees with 

commenters that approval of a 

maintenance plan for any area has the 

result of precluding the Agency from 

later finding that certain SIP provisions 

are substantially inadequate under the 

CAA on the basis that those provisions 

may interfere with attainment or 

maintenance of the NAAQS or fail to 

meet any other legal requirement of the 

CAA. The approval of a state’s 

redesignation request and maintenance 

plan for a particular NAAQS is not the 

conclusion of the state’s and the EPA’s 

responsibilities under the CAA but 

rather is one step in the process 

Congress established for identifying and 

addressing the nation’s air quality 

problems on a continuing basis. The 

redesignation process allows states with 

nonattainment areas that have attained 

the relevant NAAQS to provide the EPA 

with a demonstration of the control 

measures that will keep the area in 

attainment for 10 years, with the caveat 

that the suite of measures may be 

revisited if necessary and must be 

revisited with a second maintenance 

plan for the 10 years following the 

initial 10-year maintenance period. 

Moreover, it is clear from the 

structure of section 175A maintenance 

plans that Congress understood that the 

EPA’s approval of a maintenance plan is 

not a guarantee of future attainment air 

quality in a nonattainment area. Rather, 

Congress foresaw that violations of the 

NAAQS could occur following a 

redesignation of an area to attainment 

and therefore required section 175A 

maintenance plans to include 

contingency measures that a state could 

implement quickly in response to a 

violation of a standard. The notion that 

the EPA’s approval of a maintenance 

plan must be the last word with regard 

to the contents of a state’s SIP simply 

does not comport with the framework 

Congress established in the CAA for 

redesignations. The EPA has continuing 

authority and responsibility to assure 

that a state’s SIP meets CAA 

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362 108 F.3d at 1410. 

363 421 U.S. 60, 79 (1975). 

requirements, even after approving a 

redesignation request for a particular 

NAAQS. 

In conclusion, the EPA is not required 

to reevaluate the validity of all 

previously approved SIP provisions as 

part of a redesignation. The existence of 

provisions such as impermissible 

exemptions and affirmative defenses 

applicable during SSM events in an 

approved SIP does not preclude the 

EPA’s determination that emission 

reductions that have provided for 

attainment and that will provide for 

maintenance of a NAAQS in a 

nonattainment area are ‘‘permanent and 

enforceable,’’ as those terms are meant 

in section 107(d)(3), or that the state has 

met all applicable requirements under 

section 110 and part D relevant for the 

purposes of redesignation. Finally, if the 

EPA separately determines that the 

state’s SIP is deficient after the 

redesignation of the area to attainment, 

the Agency can issue a SIP call 

requiring a corrective SIP revision. 

Redesignation of areas to attainment in 

no way relieves states of their 

continuing responsibilities to remove 

deficient SIP provisions from their SIPs 

in the event of a SIP call. 

16. Comments that in issuing a SIP 

call the EPA is ‘‘dictating’’ to states how 

to regulate their sources and taking 

away their discretion to adopt 

appropriate control measures of their 

own choosing in developing a SIP. 

Comment: Several commenters 

claimed that the EPA’s SIP call action 

removes discretion that states would 

otherwise have under the CAA. 

Commenters claimed that the action has 

the effect of unlawfully directing states 

to impose a particular control measure 

by requiring the state to regulate all 

periods of operation for any source it 

chooses to regulate. Because the 

alternative emission limitations and 

work practice standards that the EPA 

asserts are necessary under the statutory 

definition of ‘‘emissions limitation’’ are 

not real options in some cases, the 

commenters claimed, the EPA’s 

proposal is the type of mandate that the 

court in the Virginia decision found to 

have violated the CAA.362 Other 

commenters also cited to the Virginia 

decision, as well as citing to the U.S. 

Supreme Court’s decision in Train v. 

NRDC, in which the Court held that ‘‘so 

long as the ultimate effect of a State’s 

choice of emissions limitations is 

compliance with the national standards, 

the State is at liberty to adopt whatever 

mix of emissions limitations it deems 

best suited to its particular situation.363

The commenters concluded that the 

EPA cannot prescribe the specific terms 

of SIP provisions applicable to SSM 

events absent evidence that the 

provisions undermine the NAAQS or 

are otherwise inconsistent with the Act. 

Commenters claimed that states are 

provided substantial discretion under 

the Act in how to develop SIPs and that 

the EPA’s SIP call action is inconsistent 

with this long-recognized discretion 

because it limits the states to one 

option: ‘‘Eliminate any consideration of 

unavoidable emissions during planned 

startups and shutdowns and adopt only 

an extremely limited affirmative defense 

for unavoidable emissions during a 

malfunction.’’ The commenters claimed 

that other options available to states 

include ‘‘justifying existing provisions, 

adopting alternative numeric emission 

limitations, work practice standards, 

additional operational limitations, or 

revising existing numeric emission 

limitations and/or their associated 

averaging times to create a sufficient 

compliance margin for unavoidable 

SSM emissions.’’ 

The commenters further asserted that 

the EPA’s February 2013 proposal 

contained inconsistent statements about 

how the Agency expects states to 

respond to the SIP call. For example, 

according to one commenter, the EPA 

states in one place that startup and 

shutdown emissions above otherwise 

applicable limits must be considered a 

violation yet elsewhere discusses the 

fact that states can adopt alternative 

emission limitations for startup and 

shutdown. The commenter also asserted 

that the EPA recommended that states 

could elect to adopt the an approach to 

emissions during startup and shutdown 

like that of the EPA’s recent MATS rule 

but that the EPA then failed to explain 

that the MATS rule contains 

‘‘exemptions’’ for emissions during 

startup and shutdown that apply so long 

as the source meets the general work 

practice standards in the rule. This 

commenter claimed that the EPA’s own 

approach is inconsistent with 

statements in the February 2013 

proposal that states should treat all 

startups and shutdowns as ‘‘normal 

operations.’’ 

Response: The EPA disagrees with the 

commenter’s claims that the SIP call 

violates the structure of ‘‘cooperative 

federalism’’ that Congress enacted for 

the SIP program in the CAA. Under this 

structure, the EPA establishes NAAQS 

and reviews state plans to ensure that 

they meet the requirements of the CAA. 

States take primary responsibility for 

developing plans to attain and maintain 

the NAAQS, but the EPA is required to 

step in if states fail to adopt plans that 

meet the statutory requirements. As the 

court in Virginia recognized, Congress 

gave states discretion in choosing the 

‘‘mix of controls’’ necessary to attain 

and maintain the NAAQS. See also 

Train v. NRDC, 421 U.S. 60, 79, 95 

(1975). The U.S. Supreme Court first 

recognized this program of cooperative 

federalism in Train, and the Court 

stated: 

The Act gives the Agency no authority to 

question the wisdom of a State’s choices of 

emissions limitations if they are part of a 

plan which satisfies the standards of 

§ 110(a)(2) . . . [S]o long as the ultimate 

effect of a State’s choice of emissions 

limitations is compliance with the national 

standards, the State is at liberty to adopt 

whatever mix of emissions limitations it 

deems best suited to its particular situation. 

The issue in that case concerned 

whether changes to requirements that 

would occur before the area was 

required to attain the NAAQS were 

variances that should be addressed 

pursuant to the provision governing SIP 

revisions or were ‘‘postponements’’ that 

must be addressed under section 110(f) 

of the CAA of 1970, which contained 

prescriptive criteria. The court 

concluded that the EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). While the 

court recognized that states had 

discretion in determining the 

appropriate emissions limitations, it 

also recognized that the SIP must meet 

the standards of section 110(a)(2). In 

Virginia, the issue was whether at the 

request of the Ozone Transport 

Commission the EPA could mandate 

that states adopt specific motor vehicle 

emission standards more stringent than 

those mandated by CAA sections 177 

and 202 for regulating emissions from 

motor vehicles. 

As the EPA has consistently 

explained in its SSM Policy, the Agency 

does not believe that exemptions from 

compliance with any applicable SIP 

emission limitation requirements during 

periods of SSM are consistent with the 

obligation of states in SIPs, including 

the requirements to demonstrate that 

plans will attain and maintain the 

NAAQS, protect PSD increments and 

improve visibility. If a source is free 

from any obligation during periods of 

SSM, there is nothing restraining those 

emissions and such emissions could 

cause or contribute to an exceedance or 

violation of the NAAQS. Moreover, 

neither the state nor citizens would 

have authority to take enforcement 

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action regarding such emissions. Also, 

even if historically such excess 

emissions have not caused or 

contributed to an exceedance or 

violation, this would not mean that they 

could not do so at some time in the 

future. Finally, given that there are 

many locations where air quality is not 

monitored such that a NAAQS 

exceedance or violation could be 

observed, the inability to demonstrate 

that such excess emissions have not 

caused or contributed to an exceedance 

or violation would not be proof that 

they have not. Thus, the EPA has long 

held that exemptions from emission 

limitations for emissions during SSM 

events are not consistent with CAA 

requirements, including the obligation 

to attain and maintain the NAAQS and 

the requirement to ensure adequate 

enforcement authority. 

Despite claims by the commenter to 

the contrary, the EPA has not mandated 

the specific means by which states 

should regulate emissions from sources 

during startup and shutdown events. 

Requiring states to ensure that periods 

of startup and shutdown are regulated 

consistent with CAA requirements is 

not tantamount to prescribing the 

specific means of control that the state 

must adopt. By the SIP call, the EPA has 

simply explained the statutory 

boundaries to the states for SIP 

provisions, and the next step is for the 

states to revise their SIPs consistent 

with those boundaries. States remain 

free to choose the ‘‘mix of controls,’’ so 

long as the resulting SIP revisions meet 

CAA requirements. The EPA agrees with 

the commenter who notes several 

options available to the states in 

responding to the SIP call. The 

commenter stated that there are various 

options available to states, such as 

‘‘adopting alternative numeric emission 

limitations, work practice standards, 

additional operational limitations, or 

revising existing numeric emission 

limitations and/or their associated 

averaging times to create a sufficient 

compliance margin for unavoidable 

SSM emissions.’’ However, the state 

must demonstrate how that mix of 

controls for all periods of operation will 

ensure attainment and maintenance of 

the NAAQS or meet other required goals 

of the CAA relevant to the SIP 

provision, such as visibility protection. 

For example, if a state chooses to 

modify averaging times in an emission 

limitation to account for higher 

emissions during startup and shutdown, 

the state would need to consider and 

demonstrate to the EPA how the 

variability of emissions over that 

averaging period might affect attainment 

and maintenance of a NAAQS with a 

short averaging period (e.g., how a 30- 

day averaging period for emissions can 

ensure attainment of an 8-hour 

NAAQS). One option noted by the 

commenter, ‘‘justifying existing 

provisions,’’ does not seem promising, 

based on the evaluation that the EPA 

has performed as a basis for this SIP call 

action. If by justification, the commenter 

simply means that the state may seek to 

justify continuing to have an exemption 

for emissions during SSM events, the 

EPA has already determined that this is 

impermissible under CAA requirements. 

The EPA regrets any confusion that 

may have resulted from its discussion in 

the preamble to the February 2013 

proposal. The EPA’s statement that 

startup and shutdown emissions above 

otherwise applicable limitations must 

be considered a violation is simply 

another way of stating that states cannot 

exempt sources from complying with 

emissions standards during periods of 

startup and shutdown. This is not 

inconsistent with the EPA’s statement 

that states can develop alternative 

requirements for periods of startup and 

shutdown where emission limitations 

that apply during steady-state 

operations could not be feasibly met. In 

such a case, startup and shutdown 

emissions would not be exempt from 

compliance but rather would be subject 

to a different, but enforceable, standard. 

Then, only emissions that exceed such 

alternative emission limitations would 

constitute violations. 

17. Comments that because areas are 

in attainment of the NAAQS, SIP 

provisions such as automatic 

exemptions for excess emissions during 

SSM events are rendered valid under 

the CAA. 

Comment: Commenters argued that 

SSM exemptions should be permissible 

in SIP provisions applicable to areas 

designated attainment because, they 

asserted, there is evidence that the 

exemptions do not result in emissions 

that cause violations of the NAAQS. To 

support this contention, the commenters 

observed that a number of states with 

SSM exemptions in SIP provisions at 

issue in this SIP call are currently 

designated attainment in all areas for 

one or all NAAQS and also that some 

of these states had areas that previously 

were designated nonattainment for a 

NAAQS but subsequently have come 

into attainment. Thus, the commenters 

asserted, the SIP provisions that the 

EPA identified as deficient due to SSM 

exemptions must instead be consistent 

with CAA requirements because these 

states are in attainment. The 

commenters claimed that because these 

areas have shown they are able to attain 

and maintain the NAAQS or to achieve 

emission reductions, despite SSM 

exemptions in their SIP provisions, the 

EPA’s concerns with respect to SSM 

exemptions are unsupported and 

unwarranted. Based on the premise that 

SSM exemptions are not inconsistent 

with CAA requirements applicable to 

areas that are attaining the NAAQS, the 

commenters claimed that such 

provisions cannot be substantially 

inadequate to meet CAA requirements. 

Response: The EPA disagrees with the 

commenters’ view that, so long as the 

provisions apply in areas designated 

attainment, the CAA allows SIP 

provisions with exemptions for 

emissions during SSM events. The 

commenters based their argument on 

the incorrect premise that SIP 

provisions applicable to sources located 

in attainment areas do not also have to 

meet fundamental CAA requirements 

such as sections 110(a)(2)(A), 

110(a)(2)(C) and 302(k). Evidently, the 

commenters were only thinking 

narrowly of the statutory requirements 

applicable to SIP provisions in SIPs for 

purposes of part D attainment plans, 

which are by design intended to address 

emissions from sources located in 

nonattainment areas and to achieve 

attainment of the NAAQS in such areas. 

The EPA does not interpret the 

fundamental statutory requirements 

applicable to SIP provisions (e.g., that 

they impose continuous emission 

limitations) to apply exclusively in 

nonattainment areas; these requirements 

are relevant to SIP provisions in general. 

The statutory requirements applicable 

to SIPs are not limited to areas 

designated nonattainment. To the 

contrary, section 107(a) imposes the 

responsibility on each state to attain and 

maintain the NAAQS ‘‘within the entire 

geographic areas comprising such 

State.’’ The requirement to maintain the 

NAAQS in section 107(a) clearly applies 

to areas that are designated attainment, 

including those that may previously 

have been designated nonattainment. 

Similarly, section 110(a)(1) explicitly 

requires states to have SIPs with 

provisions that provide for the 

implementation, maintenance and 

enforcement of the NAAQS. By 

inclusion of ‘‘maintenance,’’ section 

110(a)(1) clearly encompasses areas 

designated attainment as well as 

nonattainment. The SIPs that states 

develop must also meet a number of 

more specific requirements set forth in 

section 110(a)(2) and other sections of 

the CAA relevant to particular air 

quality issues (e.g., the requirements for 

attainment plans for the different 

NAAQS set out in more detail in part 

D). Among those basic requirements that 

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33948 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

364See 1982 SSM Guidance, Attachment at 1. 

365See 1999 SSM Guidance at 2. 

366See Memorandum, ‘‘Statutory, Regulatory, and 

Policy Context for this Rulemaking,’’ February 4, 

2013, in the rulemaking docket at EPA–HQ–OAR– 

2012–0322–0029. 

states must meet in SIPS are section 

110(a)(2)(C), requiring a permitting 

program applicable to sources in areas 

designated attainment, and section 

110(a)(2)(D)(i)(II), requiring SIP 

provisions to prevent interference with 

protection of air quality in areas 

designated attainment in other states. 

Part C, in turn, imposes additional 

requirements on states with respect to 

prevention of significant deterioration of 

air quality in areas designated 

attainment. Although the EPA agrees 

that the CAA distinguishes between, 

and imposes different requirements 

upon, areas designated attainment 

versus nonattainment, there is no 

indication that the statute distinguishes 

between the basic requirements for 

emission limitations in these areas, 

including that they be continuous. 

Section 110(a)(2)(A) requires states to 

include ‘‘emission limitations’’ in their 

SIPs ‘‘as may be necessary or 

appropriate to meet applicable 

requirements of’’ the CAA. The EPA 

notes that the commenters have raised 

other arguments concerning the precise 

meeting of ‘‘necessary or appropriate’’ 

(see section VII.A.3 of this document), 

but in this context the Agency believes 

that because states are required to have 

SIPs that provide for ‘‘maintenance’’ of 

the NAAQS it is clear that the general 

requirements for emission limitations in 

SIPs are not limited to areas designated 

nonattainment. Section 110(a)(2)(A) 

contains no language distinguishing 

between emission limitations applicable 

in attainment areas and emission 

limitations applicable in nonattainment 

areas. Significantly, the definition of the 

term ‘‘emission limitation’’ in section 

302(k) likewise makes no distinction 

between requirements applicable to 

sources in attainment areas versus 

nonattainment areas. The EPA sees no 

basis for interpreting the term ‘‘emission 

limitation’’ differently for attainment 

areas and nonattainment areas, with 

respect to whether such emission 

limitations must impose continuous 

controls on the affected sources. Most 

importantly, section 110(a)(2)(A) does 

explicitly require that any such 

emission limitations must ‘‘meet the 

applicable requirements’’ of the CAA, 

and the EPA interprets this to include 

the requirement that emission 

limitations apply continuously, i.e., 

contain no exemptions for emissions 

during SSM events. This requirement 

applies equally in all areas, including 

attainment and nonattainment areas. 

The EPA’s interpretation of the CAA 

in the SSM Policy has long extended to 

SIP provisions applicable to attainment 

areas as well as to nonattainment areas. 

Since at least 1982, the SSM Policy has 

stated that SIP provisions with SSM 

exemptions are inconsistent with 

requirements of the CAA to provide 

both for attainment and maintenance of 

the NAAQS, i.e., inconsistent with 

requirements applicable to both 

nonattainment and attainment areas.364

Since at least 1999, the EPA’s SSM 

Policy has clearly stated that SIP 

provisions with SSM exemptions are 

inconsistent with protection of PSD 

increments in attainment areas.365 The 

EPA provided its full statutory analysis 

with respect to SSM exemptions and 

CAA requirements applicable to areas 

designated attainment in the 

background memorandum 

accompanying the February 2013 

proposal.366

Finally, the EPA disagrees with the 

commenters’ theory that, absent proof 

that the SIP deficiency has caused or 

will cause a specific violation of the 

NAAQS, the Agency lacks authority to 

issue a SIP call for SIP provisions that 

apply only in areas attaining the 

NAAQS. This argument is inconsistent 

with the plain language of section 

110(k)(5). Section 110(k)(5) authorizes 

the EPA to issue a SIP call whenever the 

SIP is substantially inadequate to attain 

or maintain the NAAQS, to mitigate 

interstate transport or to comply with 

any other CAA requirement. The 

explicit reference to a SIP’s being 

inadequate to maintain the NAAQS 

clearly indicates that the EPA has 

authority to make a finding of 

substantial inadequacy for a SIP 

provision applicable to attainment 

areas, not only for a SIP provision 

applicable to nonattainment areas. In 

addition, section 110(k)(5) explicitly 

authorizes the EPA to issue a SIP call 

not only in instances related to a 

specific violation of the NAAQS but 

rather whenever the Agency determines 

that a SIP provision is inadequate to 

meet requirements related to attainment 

and maintenance of the NAAQS or any 

other applicable requirement of the Act, 

including when the provision is 

inadequate to meet the fundamental 

legal requirements applicable to SIP 

provisions. Were the EPA’s authority 

limited to issuing a SIP call only in the 

event an area was violating the NAAQS, 

section 110(k)(5) would not explicitly 

include requirements related to 

‘‘maintenance’’ and would not explicitly 

include the statement ‘‘otherwise 

comply with any requirement of [the 

CAA].’’ 

18. Comments that the EPA’s initial 

approval of these deficient provisions, 

or subsequent indirect approval of them 

through action on other SIP 

submissions, establishes that these 

provisions meet CAA requirements. 

Comment: A number of commenters 

argued that because the EPA initially 

approved the SIP provisions at issue in 

this rulemaking, this establishes that 

these provisions meet CAA 

requirements. Other commenters argued 

that subsequent actions on other SIP 

submissions in effect override the fact 

that the SIP provisions at issue are 

legally deficient. For example, an 

industry commenter asserted that there 

have been ‘‘dozens of instances where 

EPA has reviewed Alabama SIP revision 

submittals’’ and the EPA has never 

indicated ‘‘that it believed these rules to 

be inconsistent with the CAA.’’ Other 

state commenters made similar 

arguments suggesting that the EPA’s 

original approval of these provisions, 

and the fact that the EPA has not 

previously taken action to require states 

to revise them, indicates that they are 

not deficient. 

Response: The EPA disagrees with 

these commenters. The fact that the EPA 

once approved a SIP provision does not 

mean that the SIP provision is per se 

consistent with the CAA, or consistent 

with the CAA notwithstanding any later 

legal or factual developments. This is 

demonstrated by the very existence of 

the SIP call provision in section 

110(k)(5), whereby the EPA may find 

that an ‘‘applicable implementation 

plan for any area is substantially 

inadequate to attain or maintain the 

relevant [NAAQS] . . . or to otherwise 

comply with any requirement of’’ the 

CAA. This SIP call authority expressly 

authorizes the EPA to direct a state to 

revise its SIP to remedy any substantial 

inadequacy, including failures to 

comply with legal requirements of the 

CAA. By definition, when the EPA 

promulgates a SIP call, this means that 

the Agency has previously approved the 

provision into the SIP, rightly or 

wrongly. The SIP call provision would 

be meaningless if a SIP provision were 

considered perpetually consistent with 

CAA requirements after it was originally 

approved, and merely because of that 

prior approval as commenters suggest. 

In the February 2013 proposal, the EPA 

acknowledged its own responsibility in 

approving provisions that were 

inconsistent with CAA requirements. 

The EPA also disagrees with the 

argument that the Agency’s action on 

other intervening SIP submissions from 

a state over the years since the approval 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33949 

367The commenter appears to have been meaning 

to cite to the draft EPA guidance document ‘‘Draft 

Guidance for Demonstrating Attainment of Air 

Quality Goals for PM2.5 and Regional Haze,’’ 

January 2, 2001. This draft guidance on PM2.5 and 

Regional Haze was combined with similar guidance 

on ozone in the final guidance document 

‘‘Guidance on the Use of Models and Other 

Analyses for Demonstrating Attainment of Air 

Quality Goals for Ozone, PM2.5, and Regional 

Haze,’’ April 2007, EPA–454/B–07–002. 

368 ‘‘Guidelines for Estimating and Applying Rule 

Effectiveness for Ozone/CO State Implementation 

Plan Base Year Inventories,’’ November 1992, EPA– 

4S2JR–92.010. 

369 ‘‘Emissions Inventory Guidance for 

Implementation of Ozone and Particulate Matter 

National Ambient Air Quality Standards (NAAQS) 

and Regional Haze Regulations,’’ Appendix B, 

August 2005, EPA–454/R–05–001. 

370 ‘‘Draft Emissions Inventory Guidance for 

Implementation of Ozone [and Particulate Matter]* 

National Ambient Air Quality Standards (NAAQS) 

and Regional Haze Regulations,’’ April 11, 2014, 

page 62. 

371February 2013 proposal, 78 FR 12459 at 

12485. 

of the original deficient SIP provision in 

some way negates the original 

deficiency. The industry commenter 

pointed to ‘‘dozens of instances where 

EPA reviewed Alabama SIP revision 

submittals’’ as times when the EPA 

should have addressed any SSM-related 

deficient SIP provisions. However, the 

EPA’s approval of other SIP revisions 

does not necessarily entail 

reexamination and reapproval of every 

provision in the SIP. The EPA often 

only examines the specific provision the 

state seeks to revise in the SIP 

submission without reexamining all 

other provisions in the SIP. The EPA 

sometimes broadens its review if 

commenters bring other concerns to the 

Agency’s attention during the 

rulemaking process that are relevant to 

the SIP submission under evaluation. 

19. Comments that exemptions for 

excess emissions during exempt SSM 

events would not distort emissions 

inventories, SIP control measure 

development or modeling, because the 

EPA’s regulations and guidance 

concerning ‘‘rule effectiveness’’ 

adequately account for these emissions, 

and therefore the proposed SIP calls are 

not needed or justified. 

Comment: One commenter argued 

that provisions allowing exemptions or 

affirmative defenses for excess 

emissions during startup and shutdown 

are consistent with a state’s authority 

under CAA section 110 and that this is 

evidenced by the fact that the EPA has 

issued guidance on ‘‘rule effectiveness’’ 

that plainly takes into account a 

‘‘discount’’ factor in a state’s 

demonstration of attainment when it 

chooses to adopt startup/shutdown 

provisions. This commenter cited the 

EPA’s definition of ‘‘rule effectiveness’’ 

at 40 CFR 51.50 and EPA guidance on 

demonstrating attainment of PM2.5 and 

regional haze air quality goals.367

Response: The EPA disagrees with the 

characterization in this comment of past 

EPA guidance and with the conclusion 

that the fact of the existence of EPA 

guidance on ‘‘rule effectiveness’’ would 

support the claim that the CAA provides 

authority for exemptions or affirmative 

defenses for excess emissions during 

startup and shutdown. The EPA’s 

definition of ‘‘rule effectiveness’’ at 40 

CFR 51.50 does not refer to startup and 

shutdown; it refers only to ‘‘downtime, 

upsets, decreases in control efficiencies, 

and other deficiencies in emission 

estimates,’’ and once defined the term 

‘‘rule effectiveness’’ is not subsequently 

used within 40 CFR part 51 in any way 

that would indicate that it is meant to 

capture the effect of exemptions during 

startup and shutdown. The EPA 

guidance on demonstrating attainment 

of PM2.5 and regional haze goals cited by 

the commenter also does not address 

rule effectiveness or excess emissions 

during startup and shutdown. The terms 

‘‘startup’’ and ‘‘shutdown’’ do not 

appear in the attainment demonstration 

guidance. The EPA did issue a different 

guidance document in 1992 on rule 

effectiveness,368 but that document 

focused only on the preparation of 

emissions inventories for 1990, not on 

demonstrating attainment of NAAQS or 

regional haze goals. Moreover, the 1992 

guidance document addressed ways of 

estimating actual 1990 emissions in 

light of the likelihood of a degree of 

source noncompliance with applicable 

emission limitations, not on the 

emissions that would be permissible in 

light of the absence of a continuous 

emission limitation applicable during 

startup and shutdown. The terms 

‘‘startup’’ and ‘‘shutdown’’ do not 

appear in the 1992 guidance. In 2005, 

the EPA replaced the 1992 guidance 

document on rule effectiveness as part 

of providing guidance for the 

implementation of the 1997 ozone and 

PM2.5 NAAQS.369 Like the 1992 

guidance, the 2005 guidance associated 

‘‘rule effectiveness’’ with the issue of 

noncompliance and did not provide any 

specific advice on quantifying emissions 

that could be legally emitted because of 

SSM exemptions in SIPs. To avoid 

misunderstanding, the 2005 guidance 

included a question and answer on 

startup and shutdown emissions to the 

effect that emissions during startup and 

shutdown should be included in ‘‘actual 

emissions.’’ This question and answer 

included the statement, ‘‘[L]ess 

preferably, [emissions during startup, 

shutdown, upsets and malfunctions] can 

be accounted for using the rule 

effectiveness adjustment procedures 

outlined in this guidance.’’ However, 

other than in this question and answer, 

the 2005 guidance does not mention 

emissions during startup and shutdown 

events; it focuses on issues of 

noncompliance with applicable 

emission limitations. The fact that the 

1992 guidance document did not intend 

for ‘‘rule effectiveness’’ to encompass 

SIP-exempted emissions during startup 

and shutdown, and that the 2005 

guidance also did not, is confirmed by 

a statement in a more recent draft EPA 

guidance document: 

In addition to estimating the actual 

emissions during startup/shutdown periods, 

another approach to estimate startup/

shutdown emissions is to adjust control 

parameters via the emissions calculation 

parameters of rule effectiveness or primary 

capture efficiency. Using these parameters 

for startup/shutdown adjustments is not their 

original purpose, but can be a simple way to 

increase the emissions and still have a record 

of the routine versus startup/shutdown 

portions of the emissions. (Emphasis 

added.) 370

Furthermore, as explained in the 

proposals for this action and in this 

document, the EPA believes that it is a 

fundamental requirement of the CAA 

that SIP emission limitations be 

continuous, which therefore precludes 

exemptions for excess emissions during 

startup and shutdown. At bottom, 

although it is true that these guidance 

documents indicated that one less 

preferable way to account for startup 

and shutdown emissions could be 

through the rule effectiveness analysis, 

this does not in any way indicate that 

exemptions from emissions limitations 

would be appropriate for such periods. 

Comment: A commenter argued that 

the EPA has not shown any substantial 

inadequacy with respect to CAA 

requirements but that the closest the 

EPA comes to identifying a substantial 

inadequacy is in the EPA’s discussion of 

its concern regarding the impacts of 

SSM exemptions on the development of 

accurate emissions inventories for air 

quality modeling and other SIP 

planning. This commenter and another 

commenter in particular noted a passage 

in the February 2013 proposal that 

stated that emission limitations in SIPs 

are used to meet various requirements 

for attainment and maintenance of the 

NAAQS and that all of these uses 

typically assume continuous source 

compliance with emission 

limitations.371 These commenters 

disagreed with the EPA’s statement that 

all of these uses typically assume 

continuous source compliance with 

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33950 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

372The EPA interprets the citation ‘‘See supra pp. 

21–24’’ as being intended to refer to those pages of 

‘‘Guidelines for Estimating and Applying Rule 

Effectiveness for Ozone/CO State Implementation 

Plan Base Year Inventories,’’ November 1992, EPA– 

4S2JR–92.010, which this commenter did not refer 

to by title. 

373New source permitting under the PSD program 

is an exception to the principle that the effects of 

noncompliance should be included in estimates of 

source emissions. The air quality impact analysis 

for a proposed PSD permit is based on an 

assumption that the source will operate without 

malfunctions. However, it may be necessary in this 

type of analysis to consider excess emissions that 

are the result of poor maintenance, careless 

operation or other preventable conditions. See 40 

CFR part 51, appendix W, section 8.1.2, footnote a. 

374For example, see ‘‘Emissions Inventory 

Guidance for Implementation of Ozone and 

Particulate Matter National Ambient Air Quality 

Standards (NAAQS) and Regional Haze 

Regulations,’’ Appendix B, August 2005, EPA–454/ 

R–05–001. A recent draft EPA guidance on the 

preparation of emissions inventories for attainment 

demonstrations recognizes that, in contrast to 

startup and shutdown emissions, emissions during 

malfunctions are not predictable and do not need 

to be included in projected inventories for the 

future year of attainment. See ‘‘Draft Emissions 

Inventory Guidance for Implementation of Ozone 

[and Particulate Matter]* National Ambient Air 

Quality Standards (NAAQS) and Regional Haze 

Regulations,’’ April 11, 2014, page 62. 

applicable emission limitations, and the 

commenters cited several EPA guidance 

documents and statements that, they 

believe, address SSM and ensure that 

states do not simply assume continuous 

compliance. These commenters in 

addition cited to footnote 4 of the EPA’s 

1999 SSM Guidance.372 The 

commenters argued that as long as states 

are complying with the EPA’s inventory 

and modeling rules and guidance, SSM 

exemptions and similar applicability 

provisions have no negative impact on 

SIP planning. 

Response: The EPA acknowledges 

that the cited statement in the February 

2013 proposal, that various types of 

required analysis used to develop SIPs 

or permits ‘‘typically assume 

continuous source compliance with 

emission limitations,’’ was an 

oversimplification of a complex 

situation. However, the EPA disagrees 

with the commenters’ assertion that the 

EPA’s inventory rules and other 

guidance are sufficient to ensure that 

SSM exemptions, where they still exist 

in SIPs, have no negative impact on SIP 

planning. Also, if the EPA were to allow 

them, such exemptions could become 

more prevalent and have a larger 

negative effect. More importantly, 

regardless of how SSM exemptions may 

or may not negatively impact things like 

emissions inventories, as explained 

elsewhere in this document, the EPA 

believes that it is a fundamental 

requirement of the CAA that SIP 

emission limitations be continuous, 

which therefore precludes exemptions 

for excess emissions during SSM events. 

Generally, the EPA’s guidance and 

rules do not say that it is correct for 

estimates of source emissions used in 

SIP development to be based on an 

assumption of continuous compliance 

with the SIP emission limitations even 

if the SIP contains exemptions for SSM 

periods. Rather, the EPA has generally 

emphasized that SIPs and permits 

should be based on the best available 

information on actual emissions, 

including in most cases the effects of 

known or reasonably anticipatable 

noncompliance with emission 

limitations that do apply.373 Because the 

EPA’s longstanding SSM Policy has 

interpreted the Act to prohibit 

exemptions during SSM events, it has 

not been a focus of EPA guidance to 

explain to states how to take account of 

such exemptions. As the commenters 

have pointed out, some aspects of some 

EPA guidance documents have some 

relationship to the issue of accounting 

for SSM exemptions. Nevertheless, 

taken together, the EPA’s guidance does 

not and cannot ensure that emission 

estimates used in developing SIPs and 

permits correctly reflect actual 

emissions in all cases in which SSM 

exemptions still exist in SIPs, 

particularly for sources that, unlike all 

or most of the sources represented by 

these two commenters, are not subject to 

continuous emissions monitoring. For a 

source not subject to continuous 

emissions monitoring, when excess 

emissions during SSM events are 

exempted by a SIP—whether 

automatically, on a special showing or 

through director’s discretion—it is 

much more likely that those emissions 

would not be quantified and reported to 

the air agency such that they could be 

accounted for in SIP and permit 

development. For example, when the 

SIP includes exemptions for excess 

emissions during SSM events, there may 

be no motive for a source to perform a 

special stack test during a SSM period 

in which there is no applicable emission 

limitation and possibly no legal basis for 

an air agency to require such a stack 

test. It would also be unusual to find 

well-documented emission factors for 

such transient operation that could be 

used in place of source-specific testing. 

As explained in a response provided 

earlier in this document, the EPA 

guidance documents also cited by these 

commenters in fact do not address how 

the effect of exemptions in SIPs for 

excess emissions during startup and 

shutdown can be accounted for in an 

attainment or maintenance 

demonstration. The cited 1992 ‘‘rule 

effectiveness’’ guidance in regard to 

issues such as noncompliance in the 

form of non-operation of control 

equipment, malfunctions, poor 

maintenance and deterioration of 

control equipment was meant to address 

how the issues affected emissions in 

1990, not in a future year when the 

NAAQS must be attained. The 2005 

guidance also did not provide any 

particular advice on how ‘‘rule 

effectiveness’’ concepts could be used to 

estimate emissions during exempt SSM 

periods. Given that the EPA’s 

longstanding SSM Policy has been that 

exemptions for excess emissions during 

SSM events are not permissible, the 

EPA had no reason to provide guidance 

on how attainment demonstrations 

should account for such exemptions. 

The commenters are right to infer that 

the EPA does believe that where 

exemptions for excess emissions during 

anticipatable events still remain in 

current SIPs, attainment demonstrations 

ideally should account for them. Indeed, 

the EPA’s guidance has recommended 

that all emissions during startup and 

shutdown events be included in both 

historical and projected emissions 

inventories.374 However, as long as 

exemptions for excess emissions during 

SSM events have the effect of making 

such excess emissions not be violations 

and thus not reportable as violations, it 

will be difficult for air agencies to have 

confidence that they have sufficient 

knowledge of the magnitude, location 

and timing of such emissions as would 

be needed to accurately account for 

those emissions in attainment 

demonstrations, especially for NAAQS 

with averaging periods of one day or 

less. The EPA has promulgated 

emissions inventory reporting rules, but 

these rules apply requirements to air 

agencies rather than to the sources that 

would have actual knowledge of startup 

and shutdown events and emissions. To 

make a complying inventory data 

submission to the EPA, an air agency 

does not have to obtain from sources 

information on the magnitude and 

timing of emissions during SSM events 

for which an exemption applies, and to 

the EPA’s knowledge most air agencies 

do not obtain this information. The 

EPA’s emissions inventory rules require 

the reporting of historical annual-total 

emissions only (and in some areas 

‘‘typical’’ seasonal and/or daily 

emissions for certain pollutants), not 

day-to-day emissions. Actual emissions 

during SSM events should be included 

in these annual emissions. While data 

formats are available from the EPA to 

allow a state to segregate the total 

annual emissions during SSM events 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33951 

375 In light of the NRDC v. EPA decision, 

affirmative defense provisions are not allowed in 

SIPs any longer, so this aspect of the 1999 SSM 

Guidance is no longer relevant. 

376See Memorandum, ‘‘Statutory, Regulatory, and 

Policy Context for this Rulemaking,’’ February 4, in 

the rulemaking docket at EPA–HQ–OAR–2012– 

0322–0029. 

377 ‘‘Each implementation plan . . . shall . .ensp;. 

include a program to provide for . . . regulation of 

the modification and construction of any stationary 

source within the areas covered by the plan as 

necessary to assure that [NAAQS] are achieved, 

including a permit program as required in . . . part 

C.’’ CAA section 110(a)(2)(C). 

378CAA section 163. 

379See 40 CFR 51.166(c). 

from annual emissions during other 

type of operation, to segregate the 

emissions is not a requirement and few 

states do so. Moreover, the EPA’s 

emissions inventory rules require 

reporting on most sources only on an 

‘‘every third year’’ basis, which means 

that unless an air agency has authority 

to and does require more information 

from sources than is needed to meet the 

air agency’s reporting obligation to the 

EPA, the air agency will not be in a 

position to know whether and how, 

between the triennial inventory reports, 

excess emissions during startup and 

shutdown may be changing due to 

variations in source operation and 

possibly affecting attainment or 

maintenance. Thus, the EPA’s emissions 

inventory rules provide air agencies 

only limited leverage in terms of ability 

to obtain detailed information from 

sources regarding the extent to which 

actual emissions during SSM events 

may be unreported in emissions 

inventories, due to SIP exemptions. The 

EPA believes that when exemptions for 

excess emissions during SSM events are 

removed from SIPs, thereby making 

high emissions during SSM events 

specifically reportable deviations from 

emission limitations for more sources 

than now report them as such, it will be 

easier for air agencies to understand the 

timing and magnitude of event-related 

emissions that can affect attainment and 

maintenance. However, this belief is not 

the basis for this SIP call action, only an 

expected useful outcome of it. 

Footnote 4 of the EPA’s 1999 SSM 

Guidance suggested that ‘‘[s]tates may 

account for [potential worst-case 

emissions that could occur during 

startup and shutdown] by including 

them in their routine rule effectiveness 

estimates.’’ This statement in the 1999 

document’s footnote may seem at odds 

with the statement in this response that 

the ‘‘rule effectiveness’’ concept was not 

meant to embrace excess emissions 

during startup and shutdown that were 

allowed because of SIP exemptions. 

However, the footnote is attached to text 

that addresses ‘‘worst-case’’ emissions 

that are higher than allowed by the 

applicable SIP, because that text speaks 

about the required demonstration to 

support a SIP revision containing an 

affirmative defense for violations of 

applicable SIP emission limitations. 

Thus, estimates of such worst-case 

emissions would reflect the effects of 

noncompliance, which is within the 

intended scope of the EPA’s ‘‘rule 

effectiveness’’ guidance. Footnote 4 was 

not referring to the issue of how to 

account for the effect of SSM 

exemptions.375

Comment: A number of commenters 

stated their understanding that the EPA 

has proposed SIP calls as a way of 

improving air agencies’ implementation 

of EPA-specified requirements in 

emissions inventory or modeling, and 

they stated that if this is the EPA’s 

concern then the EPA should address 

the issue in that context. 

Response: To clarify its position, the 

EPA explains here that while it believes 

that approvable SIP revisions in 

response to the proposed SIP calls will 

have the benefit of providing 

information on actual emissions during 

SSM events that can improve emissions 

inventories and modeling, the 

availability of this additional 

information is not the basis for the SIP 

calls that are being finalized. The EPA 

believes that it is a fundamental 

requirement of the CAA that SIP 

emission limitations be continuous, 

which therefore precludes exemptions 

for excess emissions during startup and 

shutdown. 

Comment: An air agency commenter 

stated that facilities in its state are 

required to submit data on all annual 

emissions, including emissions from 

startup and shutdown operation (and 

malfunctions), as part of its annual 

emissions inventory, and that it takes 

these emissions into consideration as 

part of SIP development. 

Response: The EPA appreciates the 

efforts of this commenter to develop 

SIPs that account for all emissions. 

However, these efforts and whatever 

degree of success the commenter enjoys 

do not change the fundamental 

requirement of the CAA that SIP 

emission limitations be continuous, 

which therefore precludes exemptions 

for excess emissions during startup and 

shutdown. 

Comment: A commenter argued that 

even to the extent SSM emissions 

present some level of uncertainty in 

model-based air quality projections, that 

uncertainty is small compared to other 

sources of uncertainty in modeling 

analyses, and so SSM emissions will not 

have any significant impact on 

attainment demonstrations or any 

underlying air quality modeling 

analysis. 

Response: In support of this very 

general statement, the commenter 

provided only its own assessment of its 

own experience and the similar opinion 

of unnamed permitting agencies. In any 

case, this SIP call action is not based on 

any EPA determination about how 

modeling uncertainties due to SSM 

exemptions in SIPs compare to other 

modeling uncertainties. 

20. Comments that exemptions for 

excess emissions during SSM events are 

not a concern with respect to PSD and 

protection of PSD increments. 

Comment: Commenters asserted that 

the EPA has not adequately explained 

the basis for its concerns about the 

impact of emissions during SSM events 

on PSD increments. 

Response: The EPA disagrees. As 

explained in detail in the background 

memorandum included in the docket for 

this rulemaking,376 CAA section 

110(a)(2)(C) requires that a state’s SIP 

must include a PSD program to meet 

CAA requirements for attainment 

areas.377 In addition, section 161 

explains that ‘‘[e]ach [SIP] shall contain 

emission limitations and such other 

measures as may be necessary . . . to 

prevent significant deterioration of air 

quality for such region . . . designated 

. . . as attainment or unclassifiable.’’ 

Specifically, each SIP is required to 

contain measures assuring that certain 

pollutants do not exceed designated 

maximum allowable increases over 

baseline concentrations.378 These 

maximum allowable increases are 

known as PSD increments. Applicable 

EPA regulations require states to 

include in their SIPs emission 

limitations and such other measures as 

may be necessary in attainment areas to 

assure protection of PSD increments.379

Authorizing sources in attainment areas 

to exceed SIP emission limitations 

during SSM events compromises the 

protection of these increments. 

The commenters’ concerns seem to be 

focused on PSD permitting for 

individual sources rather than on 

emission limitations in SIPs. The 

commenters asserted that the EPA 

already adequately accounts for all 

emissions during SSM events when 

calculating the baseline and increment 

consumption and expressed concern 

about the potential for ‘‘double 

counting’’ of emissions by counting 

them both toward the baseline and 

against increment. The EPA agrees that 

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380See 40 CFR 51.166 and 52.21. 

381See CAA section 169(4) (defining baseline 

concentration); 40 CFR 51.166(b)(13)(i) (setting 

forth what is included in baseline concentration; 40 

CFR 52.21(b)(13)(i) (same). The Federal Register 

document promulgating the revised PSD regulations 

also explained this point. In that document, the 

EPA explained, ‘‘[B]aseline concentrations reflect 

actual air quality in an area. Increment 

consumption or expansion is directly related to 

baseline concentration. Any emissions not included 

in the baseline are counted against the increment. 

The complementary relationship between the 

concepts supports using the same approach for 

calculating emissions contributions to each.’’ 45 FR 

52676, 52718 (August 7, 1980). ‘‘Actual emissions’’ 

is defined in 40 CFR 51.166(b)(21)(i) and 

52.21(b)(21)(i). 

382See 45 FR 52717 (‘‘increment consumption 

and expansion should be based primarily on actual 

emissions increases and decreases, which can be 

presumed to be allowable emissions for sources 

subject to source-specific emissions limitations.’’). 

emissions should not be double-counted 

and has regulatory requirements in 

place to ensure that emissions are either 

attributed to the baseline or counted 

against increment but not both.380

Nevertheless, permitting agencies base 

their calculations of both the baseline 

and increment consumption on air 

quality data representing actual 

emissions from sources.381 As explained 

more fully in the background 

memorandum accompanying the 

February 2013 proposal, the EPA is 

concerned that as a result of SSM 

exemptions in SIPs, inventories of 

actual emissions often do not include an 

accurate accounting of excess emissions 

that occur during SSM events. 

Moreover, the models used to calculate 

increment consumption typically 

assume continuous source compliance 

with applicable emission limitations.382

Authorizing exceedances of emission 

limitations during SSM events would 

compromise the accuracy of the 

projections made by these models. 

Accurate calculations of the baseline 

and increment consumption rely on the 

correct accounting of all emissions, 

including those occurring during SSM 

events. Without accurate data, the EPA 

cannot be certain that state agencies are 

calculating baseline or increment 

consumption correctly or that 

increments in attainment areas are not 

being exceeded. For the foregoing 

reasons, the EPA is concerned that SSM 

exemptions in SIPs compromise the 

ability of the PSD program to protect air 

quality increments. 

21. Comments that because ambient 

air quality has improved over the 

duration of the CAA through various 

regulatory programs such as the Acid 

Rain Program, this disproves that SIP 

provisions including exemptions for 

excess emissions during SSM events 

pose any concerns with respect to 

protection of public health and the 

environment. 

Comment: Industry commenters 

claimed that because ambient air quality 

data show that air quality has been 

consistently improving over a period of 

years, this proves that exemptions for 

emissions during SSM events do not 

impede the ability of areas to attain and 

maintain the NAAQS. The commenters 

provided a chart showing percentage 

reduction in emissions of the various 

NAAQS pollutants ranging from 52 

percent reduction in NOX between 1980 

and 2010 to 83 percent reduction in 

direct PM10 emissions for that same time 

period. The commenters further claimed 

that a significant portion of the recent 

emissions reductions have been 

achieved by electric utilities. The 

commenters also provided charts and 

graphs showing reductions in pollutants 

under the CAA Acid Rain Program. The 

commenters further claimed that the 

states in which they operate—Alabama, 

Florida, Georgia, Mississippi and North 

Carolina—are meeting the NAAQS, with 

isolated exceptions. The commenters 

further stated that, although the EPA 

recently has promulgated several new 

NAAQS, the attainment plans for those 

standards are not yet due, and thus the 

new standards cannot justify the SIP 

call. The commenters concluded by 

noting that the states’ success in 

achieving the various NAAQS, even as 

the NAAQS have been strengthened, 

demonstrates that the existing SSM 

exemptions in SIP provisions identified 

by the EPA do not ‘‘place the NAAQS 

at risk.’’ Regarding visibility, the 

commenters noted that plans to show 

progress in meeting the regional haze 

goal were due in 2013 and that evidence 

shows that visibility is also improving 

notwithstanding the existing SSM 

exemptions. 

Response: The EPA agrees that many 

areas in the U.S. have made great strides 

in improving ambient air quality under 

the CAA. However, excess emissions 

from sources during SSM events have 

the potential to undermine that progress 

and are also inconsistent with the 

requirements of the CAA, as discussed 

elsewhere in the February 2013 

proposal and in this final action. The 

EPA notes that the fact that an area has 

attained the NAAQS does not 

demonstrate that emissions during SSM 

events do not have the potential to 

undermine attainment or maintenance 

of the NAAQS, interfere with protection 

of PSD increments or interfere with 

visibility. For certain pollutants, such as 

lead or SO2, a single source could have 

a single SSM event that could cause an 

exceedance of the NAAQS that would 

otherwise not have occurred. It is 

through its SIP that a state demonstrates 

that it has in place an air quality 

management program that will attain 

and maintain the NAAQS on an ongoing 

basis, and so it is critical that the state, 

through its SIP provisions, can ensure 

that emissions during normal source 

operation including startup and 

shutdown events do not exceed levels 

relied on for purposes of developing 

attainment and maintenance plans. 

Similarly, SIP provisions designed to 

protect visibility must also meet 

requirements of the CAA, and 

exemptions for emissions during SSM 

events would likewise have the 

potential to undermine visibility 

objectives of the CAA. Thus, it is not 

appropriate to exempt emissions during 

these SSM events from compliance with 

emission limitations in SIPs. As 

explained in this final action, the state 

has flexibility in choosing how to 

regulate source during these periods of 

operation, and sources do not 

necessarily have to be subject to the 

same numerical emissions limitations or 

the same other control requirements 

during startup and shutdown that apply 

during other modes of operation. 

However, SIP emission limitations must 

be continuous, and thus sources must be 

subject to requirements that apply at all 

times including during startup and 

shutdown. 

22. Comments that the EPA’s position 

that SIP provisions such as automatic 

exemptions for excess emissions during 

SSM events hinder effective 

enforcement for violations is incorrect, 

because there have been a number of 

citizen suits brought under the CAA. 

Comment: According to industry 

commenters, the EPA’s argument that 

deficient SIP provisions concerning 

emissions during SSM events limit 

enforcement of violations of emissions 

limitations under sections 113 and 304 

is inaccurate, because ‘‘the facts show 

that SSM provisions do not preclude or 

hinder enforcement of any CAA 

requirements.’’ The commenters 

provided a list of ‘‘recent’’ enforcement 

actions and asserted that ‘‘[t]he sheer 

number of cases demonstrates that the 

existing regulations provide ample 

opportunity for enforcement.’’ The 

commenters cited to litigation brought 

by citizen groups that the commenters 

asserted has resulted in settlements 

including ‘‘injunctive relief and 

supplemental environmental projects 

(‘‘SEPs’’) worth tens of millions, if not 

hundreds of millions, of dollars.’’ The 

commenters also cited to one example 

to suggest that ‘‘whereas EPA and/or 

States may use enforcement discretion’’ 

in certain types of cases, ‘‘citizen groups 

do not.’’ 

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383See February 2013 proposal, 78 FR 12459 at 

12504–05. 

384See Sierra Club v. Georgia Power Co., 443 F.3d 

1346 (11th Cir. 2006). 

385Even if these cases did all involve SIP 

provisions relevant to SSM events, the sampling of 

cases cited by the commenter still do not prove the 

commenter’s point. The commenter indicated that 

11 of the 15 cited cases resulted in settlement. The 

EPA presumes that neither party admitted any fault 

in these settlements and it remains unknown 

whether the court would have found the existence 

of a violation. In addition, because these cases were 

settled, it is unknown whether exemption or 

affirmative defense provisions would have 

prevented the court from finding liability for 

violation of a CAA emissions limitation that would 

otherwise have applied. In one additional case cited 

by the commenter, the court determined that the 

defendant successfully asserted an affirmative 

defense to alleged violations of a 6-minute 40- 

percent opacity limit. The outcome of this case 

evidently supports the EPA’s concerns about the 

impacts of such provisions. 

Response: The EPA disagrees with the 

commenters’ logic that the mere 

existence of enforcement actions negates 

the concern that deficient SIP 

provisions interfere with effective 

enforcement of SIP emission limitations. 

The EPA believes that deficient SIP 

provisions can interfere with effective 

enforcement by air agencies, the EPA 

and the public to assure that sources 

comply with CAA requirements, 

contrary to the fundamental 

enforcement structure provided in CAA 

sections 113 and 304. For example, 

automatic or discretionary exemption 

provisions for excess emissions during 

SSM events by definition completely 

eliminate the possibility of enforcement 

for what may otherwise be clear 

violations of emissions limitations 

during those times. Affirmative defense 

provisions purport to alter or eliminate 

the statutory jurisdiction of courts to 

determine liability or to impose 

remedies for violations. These types of 

provisions eliminate the opportunity to 

obtain injunctive relief or penalties that 

may be needed to ensure appropriate 

efforts to design, operate and maintain 

sources so as to prevent and to 

minimize excess emissions, protect the 

NAAQS and PSD increments and meet 

other CAA requirements. Similarly, the 

exemption of sources from liability for 

excess emissions during SSM events 

eliminates incentives to minimize 

emissions during those times. These 

exemptions thus reduce deterrence of 

future violations from the same sources 

or other sources during these periods. 

In the February 2013 proposal, the 

EPA discussed in detail an enforcement 

case that illustrates and supports the 

Agency’s position.383 In that case, 

citizen suit plaintiffs sought to bring an 

enforcement action against a source for 

thousands of self-reported exceedances 

of emission limitations in the source’s 

operating permit. The source asserted 

that those exceedances were not 

‘‘violations,’’ through application of a 

permit provision that mirrored an 

underlying Georgia SIP provision. The 

U.S. Court of Appeals for the Eleventh 

Circuit (Eleventh Circuit) ultimately 

determined that the provision created 

an ‘‘affirmative defense’’ for SSM 

emissions that shielded the source from 

liability for numerous violations. The 

court noted that even if the approved 

provision in Georgia’s SIP was 

inconsistent with the EPA’s guidance on 

the proper treatment of excess emissions 

during SSM events, the defendant could 

rely on the provision because the EPA 

had not taken action through 

rulemaking to rectify any 

discrepancy.384 In this final action on 

the Petition, the EPA has determined 

that the specific SIP provision at issue 

in that case is deficient for several 

reasons. Had that deficient SIP 

provision not been in the SIP at the time 

of the enforcement action, then the 

provision would not have had any effect 

on the outcome of the case. Instead, the 

courts would have evaluated the alleged 

violations and imposed any appropriate 

remedies consistent with the applicable 

CAA provisions, rather than in 

accordance with the SIP provision that 

imposed the state’s enforcement 

discretion preferences on other parties 

contrary to their rights under the CAA. 

As the outcome of this case 

demonstrates, the mere fact that a 

number of enforcement actions have 

been filed does not mean that the 

deficient SIP provisions identified by 

the EPA in this SIP call action do not 

hinder effective enforcement under 

sections 113 and 304. To the contrary, 

that case illustrates exactly how conduct 

that might otherwise be a clear violation 

of the applicable SIP emission 

limitations by a source was rendered 

immune from enforcement through the 

application of a provision that operated 

to excuse liability for violations and 

potentially allowed unlimited excess 

emissions during SSM events. 

The commenters cited 15 other 

enforcement cases brought by 

government and citizen groups over a 

span of 17 years, but the commenters do 

not indicate whether any SIP provisions 

relevant to emissions during SSM 

events were involved, nor do the 

commenters indicate whether any 

provisions at issue in this SIP call action 

were involved in any of the enforcement 

cases it cited.385 Even if an enforcement 

action has been initiated, the EPA’s 

fundamental point remains: SIP 

provisions that exempt what would 

otherwise be a violation of SIP 

emissions limitations can undermine 

effective enforcement during times 

when the CAA requires continuous 

compliance with such emissions 

limitations. By interfering with 

enforcement, such provisions 

undermine the integrity of the SIP 

process and the rights of parties to seek 

enforcement for violation of SIP 

emission limitations. 

A number of commenters on the 

February 2013 proposal indicated that, 

from their perspective, a primary benefit 

of automatic or discretionary 

exemptions in SIP provisions applicable 

to emissions during SSM events is to 

shield sources from liability. Similarly, 

commenters on the SNPR indicated that, 

from their perspective, a key benefit of 

affirmative defense provisions is to 

prevent what is in their opinion 

inappropriate enforcement action for 

violations of SIP emission limitations 

during SSM events. The EPA does not 

agree that the purpose of SIP provisions 

should be to preclude or impede 

effective enforcement of SIP emission 

limitations. To the contrary, the 

potential for enforcement for violations 

of CAA requirements is a key 

component of the enforcement structure 

of the CAA. To the extent that 

commenters are concerned about 

inappropriate enforcement actions for 

conduct that is not in violation of CAA 

requirements, the EPA believes that the 

sources already have the ability to 

defend against any such invalid claims 

in court. 

23. Comments that the EPA’s alleged 

inclusion of ‘‘exemptions’’ or 

‘‘affirmative defenses’’ in enforcement 

consent decrees negates the Agency’s 

interpretation of the CAA to prohibit 

them in SIP provisions. 

Comment: One industry commenter 

claimed that the EPA has itself recently 

promulgated an exemption for 

emissions during SSM events. The 

commenter cited an April 1, 2013, 

settlement agreement in a CAA 

enforcement case against Dominion 

Energy as an example. According to the 

commenter, this settlement agreement 

‘‘provides allowances for excess 

emissions during startup and 

shutdown’’ and ‘‘allows an EGU to 

operate without the ESP when it is not 

practicable.’’ The commenter 

characterized this as the creation of an 

exemption from the applicable emission 

limitations during startup and 

shutdown. The commenter further 

alleged that the settlement agreement 

‘‘provides for an affirmative defense to 

stipulated penalties for excess emissions 

occurring during start up and 

shutdown.’’ The commenter intended 

the fact that the EPA agrees to this type 

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33954 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

of provision in an enforcement 

settlement agreement to establish that 

affirmative defense provisions must also 

be valid in SIP provisions so that 

sources can assert them in the event of 

any violation of SIP emission 

limitations. 

Response: The EPA disagrees with the 

commenter concerning the EPA’s 

purported creation of exemptions for 

SSM events in enforcement consent 

decrees or settlement agreements. 

Consent decrees or settlement 

agreements negotiated by the EPA to 

resolve enforcement actions do not raise 

the same concerns as automatic 

exemptions for excess emissions during 

SSM periods or any other provisions 

that the EPA has found substantially 

inadequate in this SIP call action. 

The EPA has the authority to enter 

consent decrees and settlement 

agreements in its enforcement cases and 

uses this discretion to resolve these 

cases. Settlements aim to achieve the 

best possible result for a given case, 

taking into account its specific 

circumstances and risks, but are still 

compromises between the parties to the 

litigation. 

The EPA also disagrees with 

comments that attempt to equate 

affirmative defense provisions in SIPs 

with affirmative defense clauses that the 

EPA and defendants agree to 

contractually in a consent decree or 

settlement agreement to resolve an 

enforcement case. Some consent decrees 

and settlement agreements that the EPA 

enters into contain provisions referred 

to as ‘‘affirmative defenses’’ that apply 

only with respect to whether a source 

must pay stipulated penalties specified 

in the consent decree or settlement 

agreement. However, the EPA does not 

believe these agreements are counter to 

CAA requirements. The provisions in 

these contractual agreements are 

distinguishable from affirmative defense 

provisions in SIPs for excess emissions 

during SSM events. Affirmative 

defenses to stipulated penalties apply 

only in the limited context of violations 

of the contract terms of the consent 

decree or settlement agreement. 

Significantly, these affirmative 

defense provisions apply only to the 

stipulated penalties of the consent 

decree or settlement agreement and do 

not carry over for incorporation into the 

source’s permit. Most importantly, these 

affirmative defense provisions do not 

affect the penalty for violations of CAA 

requirements in general or of SIP 

emission limitation violations in 

particular. Further, a consent decree is 

itself a court order, and where these 

provisions have been used in a consent 

decree they are sanctioned by the court 

and cannot be seen as a compromise of 

the court’s own jurisdiction or 

authority. Indeed, the specific consent 

decree cited by the commenter contains 

exactly these types of ‘‘affirmative 

defense’’ provisions that are applicable 

only to the stipulated penalties imposed 

contractually by the consent decree and 

that do not operate to create any other 

form of affirmative defense applicable 

more broadly. 

The EPA’s use of these provisions in 

enforcement consent decrees or 

settlement agreements is not 

inconsistent with the EPA’s 

interpretation of the CAA to preclude 

such provisions in SIPs. The EPA 

interprets the CAA to preclude such 

affirmative defenses in SIP provisions 

because they purport to alter or 

eliminate the jurisdiction of courts to 

find liability or to impose remedies for 

CAA violations in the event of judicial 

enforcement. No such concern is 

presented by the types of provisions in 

consent decrees or settlement 

agreements raised by the commenters, 

because the terms of such agreements 

must be approved and sanctioned by a 

court. 

24. Comments that the EPA should 

provide more than 18 months for the 

SIP call because state law administrative 

process can take longer than that. 

Comment: Several state and industry 

commenters claimed that states will 

need longer than 18 months to submit 

SIPs in response to a SIP call. One state 

commenter argued generally that more 

time is needed for the state to ‘‘change 

rules and submit a proposed SIP 

revision’’ but did not provide any detail 

on how much more time is needed. The 

commenter concluded that a ‘‘total of 

five years’’ is needed for both the state 

to complete its actions and for facilities 

‘‘to change operating procedures or add 

hardware.’’ Another state commenter 

claimed states would need at least 3 

years to submit revised plans and cited 

to 40 CFR 51.166(a)(6) as providing a 3- 

year window for submission of SIP 

revisions. 

An industry commenter asserted that 

it has taken EPA numerous years to 

address the startup and shutdown 

provisions in its own MACT standards 

and that states will need a similar 

amount of time to ‘‘unspin’’ the SSM 

provisions from SIP emission 

limitations and replace them with new 

requirements. The commenter pointed 

to the difficulty of modifying multiple 

permits and source-specific or sourcecategory specific regulations. The 

commenter urged the EPA to provide 

much more time that the 18 months 

allowed by statute for a SIP call through 

‘‘a transition period of a reasonable 

length far exceeding 48 months.’’ 

Another industry commenter stated 

that more time is necessary but 

recognized that the maximum statutory 

period is 18 months. The commenter 

supported the EPA’s providing states 

with the full 18 months to submit SIP 

revisions, because that time is needed in 

order for the states to undertake the 

necessary technical analyses to support 

the SIP revisions and in order to allow 

for the state rulemaking processes. 

Response: The EPA recognizes that 

rule development and the associated 

administrative processes can be 

complex and time-consuming for states 

and for the Agency. Thus, the EPA is 

providing the maximum period allowed 

under CAA section 110(k)(5)—18 

months—for states to submit SIP 

revisions in response to the SIP call. 

The EPA does not have authority under 

the statute to provide states with a 

longer period of time to submit these 

SIP submissions. To assist states in 

responding to this SIP call, the EPA is 

providing updated and comprehensive 

guidance concerning CAA requirements 

applicable to SIP provisions with 

respect to emissions during SSM events. 

Ideally, this guidance will allow states 

and the EPA to address the existing 

deficiencies as efficiently as possible, 

given the statutory schedules applicable 

to both states and the Agency. 

The commenter who cited to 40 CFR 

51.166(a)(6) is incorrect that it provides 

authority for the EPA to grant states 3 

years to correct SIPs in response to a SIP 

call. The regulatory provision cited by 

the commenter is part of the EPA’s 

regulations for the PSD program and 

simply provides that if the EPA amends 

that section of the PSD regulations, then 

a state will have 3 years to make a SIP 

submission to revise its SIP to meet the 

new PSD requirements in response to 

such amendments. This final action 

does not amend the PSD regulations and 

40 CFR 51.166(a)(6) is not implicated. 

Under CAA section 110(k)(5), the EPA 

is only authorized to provide a 

maximum period of 18 months for states 

to submit SIP revisions to rectify the SIP 

deficiencies. 

25. Comments that EPA should issue 

an interim enforcement policy, with 

respect to enforcement between the time 

that states revise SIP requirements and 

source permits are revised to reflect 

those changes. 

Comment: One commenter argued 

that if the EPA finalizes the proposed 

SIP call for provisions applicable to 

emissions during SSM events, it will 

take state regulators a significant period 

of time to ‘‘disaggregate’’ the effect of 

those deficient provisions on various 

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386See February 2013 proposal, 78 FR 12459 at 

12482. 

other SIP provisions and the 

requirements of source operating 

permits. Because these corrections to 

SIP provisions and permit requirements 

will take time to occur, the commenter 

asserted that ‘‘a transition period of 

reasonable length far exceeding 48 

months will be needed to shield 

industry from enforcement.’’ The 

commenter thus requested that the EPA 

impose such a transition period. In 

addition, the commenter suggested that 

the EPA should create ‘‘an interim 

enforcement policy’’ to shield sources 

and allow reliance on affirmative 

defense provisions ‘‘even after SIPs are 

corrected until permits reflect those 

changes.’’ The commenter posed this 

request based upon concern that there 

will be industry confusion concerning 

what requirements apply to individual 

sources until permits are revised to 

reflect the correction of the deficient SIP 

provisions. 

Response: The EPA agrees with the 

commenter that it will take time for 

states to make the necessary SIP 

revisions in response to this SIP call, for 

the EPA to evaluate and act upon those 

SIP submissions and subsequently for 

states or the Agency to revise operating 

permits in the ordinary course to reflect 

the corrected state SIPs. As explained in 

the February 2013 proposal, the EPA 

consciously elected to proceed via its 

SIP call authority under section 

110(k)(5) and to provide the statutory 

maximum of 18 months for the 

submission of corrective SIP revisions. 

The EPA chose this path specifically in 

order to provide states with time to 

revise their deficient SIP provisions 

correctly and in the manner that they 

think most appropriate, consistent with 

CAA requirements. The EPA also 

explicitly acknowledged that during the 

pendency of the SIP revision process, 

and during the time that it will take for 

permit terms to be revised in the 

ordinary course, sources will remain 

legally authorized to emit in accordance 

with current permit terms.386

The EPA is in this final action 

reiterating that the issuance of the SIP 

call action does not automatically alter 

any provisions in existing operating 

permits. By design, sources for which 

emission limitations are incorporated in 

permits will thus have a de facto 

transition period during which they can 

take steps to assure that they will 

ultimately meet the revised SIP 

provisions (e.g., by changing their 

equipment or mode of operation to meet 

an appropriate emission limitation that 

applies during startup and shutdown 

instead of relying on exemptions). 

Sources subject to permit requirements 

will thus have yet more time (beyond 

the 18 months allowed for the SIP 

revision in response to this SIP call 

action) over the permit review cycle to 

take steps to meet revised permit terms 

reflecting the revised SIP provisions. 

However, the EPA does not agree with 

the commenter that there is a need for 

a ‘‘transition period’’ to ‘‘shield’’ 

sources from enforcement. The EPA’s 

objective in this action is to eliminate 

impermissible SIP provisions that 

exempt emissions during SSM events or 

otherwise interfere with effective 

enforcement for violations that occur 

during such events. Further delaying the 

time by which sources will be expected 

to comply with SIP provisions that are 

consistent with CAA requirements is 

inappropriate. Moreover, the primary 

purpose of SIP provisions is not to 

shield sources from liability for 

violations of CAA requirements but 

rather to assure that sources are required 

to meet CAA requirements. 

The EPA shares the commenter’s 

concern that there is the potential for 

confusion on the part of sources or other 

parties in the interim period between 

the correction of deficient SIP 

provisions and the revision of source 

operating permits in the ordinary 

course. However, the EPA presumes that 

most sources required to have a permit, 

especially a title V operating permit, are 

sufficiently sophisticated and aware of 

their legal rights and responsibilities 

that the possibility for confusion on the 

part of sources should be very limited. 

Likewise, by making clear in this final 

action that sources will continue to be 

authorized to operate in accordance 

with existing permit terms until such 

time as the permits are revised after the 

necessary SIP revision, the EPA 

anticipates that other parties should be 

on notice of this fact as well. Regardless 

of the potential for confusion by any 

party, the EPA believes that the legal 

principle of the ‘‘permit shield’’ is well 

known by regulated entities, regulators, 

courts and other interested parties. 

Accordingly, the EPA is not issuing any 

‘‘enforcement policy’’ in connection 

with this SIP call action. 

26. Comments that a SIP call directing 

states to eliminate exemptions for 

excess emissions during SSM events is 

a ‘‘paper exercise’’ or ‘‘exalts form over 

substance.’’ 

Comment: A number of commenters 

argued that by requiring states to correct 

deficient SIP provisions, such as by 

requiring removal of exemptions for 

emissions during SSM events, this SIP 

call action will not result in any 

environmental benefits. For example, 

state commenters claimed that they will 

not be able simply to revise regulations 

to eliminate startup and shutdown 

exemptions. Instead, the commenters 

claimed, the states will need to revise 

the emissions limitations completely in 

order to take into account the EPA’s 

interpretation of the CAA that such 

exemptions are impermissible. The 

commenters asserted that rewriting the 

state regulations will produce no 

reduction in emissions or improvement 

in air quality and will merely impose 

burdens upon states to change existing 

regulations. The implication of the 

commenters’ argument is that states will 

merely revise SIP emission limitations 

to allow the same amount of emissions 

during SSM events by some other 

means, rather than by establishing 

emission limitations that would 

encourage sources to be designed, 

operated and maintained in a fashion 

that would better control those 

emissions. 

Response: The EPA does not agree 

with the commenters’ assertion that 

revisions to the affected SIP provisions 

in response to this SIP call action will 

produce no emissions reductions or 

improvements in air quality. The EPA 

recognizes that some states may elect to 

develop revised emission limitations 

that provide for alternative numerical 

limitations, control technologies or 

work practices applicable during startup 

and shutdown that differ from 

requirements applicable during other 

modes of source operation. Other states 

may elect to develop completely revised 

emission limitations and elevate the 

level of the numerical emission 

limitation that applies at all times to 

account for greater emissions during 

startup and shutdown. However, any 

such revised emission limitations must 

comply with applicable substantive 

CAA requirements relevant to the type 

of SIP provision at issue, e.g. be RACM 

and RACT for sources located in 

nonattainment areas, and must meet 

other requirements for SIP revisions 

such as in sections 110(k)(3), 110(l) and 

193. 

The EPA believes that revision of the 

existing deficient SIP provisions has the 

potential to decrease emissions 

significantly in comparison to existing 

provisions, such as those that authorize 

unlimited emissions during startup and 

shutdown. Elimination of automatic and 

director’s discretion exemptions for 

emissions during SSM events should 

encourage sources to reduce emissions 

during startup and shutdown and to 

take steps to avoid malfunctions. 

Elimination of inappropriate 

enforcement discretion provisions and 

affirmative defense provisions should 

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387The EPA notes, however, that many of the 

affirmative defense type provisions at issue in this 

action were also not consistent with the Agency’s 

interpretation of the CAA in the 1999 SSM 

Guidance. Thus, even in the absence of the NRDC 

v. EPA decision, these provisions were not 

consistent with the EPA’s prior interpretation of the 

CAA for such provisions. 

provide increased incentive for sources 

to be properly designed, operated and 

maintained in order to reduce emissions 

at all times. The EPA also anticipates 

that revision of older SIP emission 

limitations in light of more recent 

technological advances in control 

technology, and in light of more recent 

NAAQS, has the potential to result in 

significant emission control and air 

quality improvements. In any event, by 

bringing these provisions into 

compliance with CAA requirements, the 

EPA believes that the resulting SIP 

provisions will support the fundamental 

integrity of the SIP process and 

structure, both substantively and with 

respect to enforceability. 

27. Comments that the EPA should 

make its interpretation of the CAA with 

respect to SSM exemptions applicable 

only ‘‘prospectively’’ and not require 

states to correct existing deficient 

provisions. 

Comment: Commenters argued that 

the EPA should not issue a SIP call to 

states for existing SIP provisions and 

should only require states to comply 

with its interpretations of the CAA 

‘‘prospectively.’’ One commenter argued 

that the SIP provisions at issue in this 

SIP call action were approved by the 

EPA in the past and have largely been 

‘‘upheld through several EPA 

refinements and guidance on SSM since 

then.’’ The commenter estimated that 

the proposed SIP call would require 

states to reestablish emission limits for 

thousands of existing sources or could 

require existing sources to comply with 

emission limitations that did not 

originally take into account emissions 

during SSM events. The commenter 

characterized the EPA’s action on the 

Petition as a change of policy with 

which the EPA should only require 

states to meet prospectively, putting 

states ‘‘on notice’’ that the EPA will 

evaluate future SIP submissions under a 

different test applicable only to new 

sources going forward. 

Other commenters argued that the 

EPA cannot require states to revise their 

SIP provisions if this would have the 

effect of making existing sources have to 

comply with the revised SIP. According 

to the commenters, existing sources 

should be ‘‘grandfathered’’ and should 

not have to change their control 

strategies or modes of operation to meet 

the revised SIP requirements. The 

commenters asserted that issuance of a 

SIP call without grandfathering existing 

sources would ‘‘retroactively’’ require 

sources to comply with the new SIP 

provisions and ‘‘suddenly’’ render 

sources noncompliant, even though they 

were in compliance with the SIP when 

they were originally designed, financed 

and built. The commenter claimed that 

the SIP call would ‘‘change the legal 

structure for commercial transactions 

that have already taken place.’’ The 

thrust of the commenters’ argument is 

that sources, once built, should never be 

subjected to any additional pollution 

control requirements once they are in 

existence. 

Response: The EPA disagrees with the 

commenters’ suggestions for multiple 

reasons. At the outset, the EPA notes 

that the only significant actual ‘‘change’’ 

in the Agency’s SSM Policy in this 

action is the determination that 

affirmative defense provisions are not 

permissible in SIP provisions. Since the 

1999 SSM Guidance, the EPA had 

interpreted the CAA to allow such 

affirmative defense provisions, so long 

as they were limited only to civil 

penalties and very narrowly drawn 

consistent with criteria recommended 

by the Agency. As fully explained in 

section IV of this document, however, 

the EPA has determined in light of the 

court’s decision in NRDC v. EPA that 

the CAA does not permit SIP provisions 

that operate to alter or eliminate the 

jurisdiction of the courts to determine 

liability and impose remedies in judicial 

enforcement actions.387 In other 

respects, this action primarily consists 

of the EPA’s taking action to assure that 

SIP provisions are consistent with the 

CAA as the Agency has interpreted it in 

the SSM Policy for many years. 

In addition, it is not appropriate for 

the EPA to allow states to retain 

deficient SIP provisions that would 

continue to excuse existing sources from 

complying with the revised SIP 

provisions in perpetuity or that would 

only require that future sources comply 

with such revised SIP provisions. The 

commenters advocate for 

‘‘grandfathering’’ that would authorize 

current sources to continue to operate 

under existing deficient SIP provisions 

(e.g., with exemptions for SSM 

emissions or with affirmative defense 

provisions) while requiring only new 

sources to comply with revised SIP 

provisions that meet CAA requirements. 

The EPA understands the practical 

reasons why the commenters make this 

suggestion, but such an approach would 

be grossly unfair both to new sources 

and to the communities affected by 

emissions from the old sources, as well 

as flatly inconsistent with the 

requirements of the CAA for SIP 

provisions. Existing sources will not be 

required to comply with the revised SIP 

emission limitations until the SIPs are 

updated, and if they are subject to 

permit requirements the sources may 

continue to operate consistent with 

those permits until the operating 

permits are revised to reflect the revised 

SIP requirements, but after that time 

current sources will be required to 

comply. Thus, sources will not 

immediately be in noncompliance with 

any requirements. The EPA has 

authority to issue a SIP call at any time 

that it determines a SIP provision is 

substantially inadequate, even if it 

mistakenly thought that the SIP 

provision was adequate at some time in 

the past. Sources will be on notice of the 

SIP call and the state’s administrative 

process to respond to it long before they 

will be required to comply with a 

revised SIP provision, and those sources 

will have ample opportunity to 

participate in the rulemakings 

establishing new requirements at both 

the state and federal level. 

Finally, the EPA notes, the need for 

states to establish new emission 

limitations and change permit terms for 

many sources should not be viewed as 

an unusual occurrence. The need to 

reexamine existing SIP provisions and 

permit terms applicable to sources in 

response to this SIP call action is 

comparable to the process that states 

would undertake to update their SIPs as 

necessary to meet new and evolving 

CAA requirements, including future 

revised NAAQS. For example, under 

section 110(a)(1) and section 110(a)(2) 

states are already required to reexamine 

and potentially to revise their SIP 

provisions whenever the EPA 

promulgates a new or revised NAAQS. 

States already need to reexamine 

emission limitations required by section 

110(a)(2)(A) and other relevant sections 

of the CAA in their SIPs on a regular 

basis as the NAAQS are revised (e.g., the 

potential need to revisit what is RACT 

for a specific source category with 

respect to a new NAAQS), as new legal 

requirements are created (e.g. the 

potential need to address interstate 

transport including compliance with 

any applicable FIP addressing a SIP 

deficiency with respect to this issue), or 

as new emissions control technologies 

are developed (e.g., what is RACT for a 

pollutant may evolve with technological 

developments). Thus, as a general 

matter, states already engage in periodic 

review of their SIP provisions on a 

regular basis, and the potential need to 

update the emissions limitations 

applicable to sources and thereafter the 

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388See 40 CFR 70.7(f)(1)(i). 

need to update the permits applicable to 

those sources is part of that process. 

This SIP call action simply directs the 

affected states to address specific 

deficiencies in their SIP provisions as 

part of this normal evolutionary process. 

28. Comments that directing states to 

correct their existing SIP provisions will 

require many sources to change terms of 

their operating permits. 

Comment: A number of commenters 

opposed the February 2013 proposal 

because of the administrative burden 

the action would impose on air agencies 

and sources. Commenters asserted that 

requiring states to remove affirmative 

defense provisions for startup and 

shutdown from SIPs and to develop 

alternative emission limitations for such 

periods of operation instead is 

unreasonable. Other commenters argued 

that requiring removal of the deficient 

SIP provisions would impose enormous 

and time-consuming burdens on 

permitting authorities and the regulated 

community associated with the 

development of new or revised 

emissions limitations for startup and 

shutdown, the revision of SIPs and the 

revision of permits to incorporate such 

revised emision limitations. Another 

commenter asserted that sources only 

accepted numerical limits in permits 

with the understanding that they also 

had the benefit of affirmative defenses 

in the event of exceedances of those 

numerical emission limits during 

periods of SSM. The commenter thus 

argued that sources would seek to revise 

the permit limits in order to account for 

the absence of such affirmative 

defenses. 

Response: The EPA acknowledges the 

concerns raised by commenters 

concerning the need for air agencies to 

revise the deficient SIP provisions at 

issue in this action, as well as the need 

for the EPA to review the resulting SIP 

revisions. The EPA does not agree, 

however, with the commenters’ 

argument that the need for these 

administrative actions is a justification 

for leaving the deficient provisions 

unaddressed. 

The EPA also acknowledges that the 

SIP revisions initiated by this SIP call 

action will result in the removal of 

deficient provisions such as automatic 

and discretionary SSM exemptions, 

overly broad enforcement discretion 

provisions and affirmative defense 

provisions. These SIP revisions will 

ultimately need to be reflected in 

revised operating permit terms for 

sources. This SIP call action will not, 

however, have an automatic impact on 

any permit terms and conditions, and 

the resource burden to revise permits 

will be spread over many years. After a 

state makes the necessary revisions to 

its SIP provisions, any needed revisions 

to operating permits to reflect the 

revised SIP provisions will occur in the 

ordinary course as the state issues new 

permits or reviews and revises existing 

permits. For example, in the case of title 

V operating permits, permits with more 

than 3 years remaining will be reopened 

to add new applicable requirements 

within 18 months of the promulgation 

of the requirements. If a permit has less 

than 3 years remaining, the new 

applicable requirement will be added at 

renewal.388

IX. What is the EPA’s final action for 

each of the specific SIP provisions 

identified in the Petition or by the EPA? 

A. Overview of the EPA’s Evaluation of 

Specific SIP Provisions 

In reviewing the Petitioner’s concerns 

with respect to the specific SIP 

provisions identified in the Petition, the 

EPA notes that most of the provisions 

relate to a small number of common 

issues. Many of these provisions are as 

old as the original SIPs that the EPA 

approved in the early 1970s, when the 

states and the EPA had limited 

experience in evaluating the provisions’ 

adequacy, enforceability and 

consistency with CAA requirements. 

In some instances the EPA does not 

agree with the Petitioner’s reading of the 

provision in question, or with the 

Petitioner’s conclusion that the 

provision is inconsistent with the 

requirements of the CAA. However, 

given the common issues that arise for 

multiple states in the Petition as well as 

in the EPA’s independent evaluation, 

there are some overarching conceptual 

points that merit discussion in general 

terms. Thus, this section IX.A of the 

document provides a general discussion 

of each of the overarching points, 

including a summary of what the EPA 

proposed to determine with respect to 

the relevant SIP provisions collectively. 

The EPA received comments on the 

proposed determinations from affected 

states, the Petitioner and other 

commenters. A detailed discussion of 

the comments received with the EPA’s 

responses is provided in the Response 

to Comment document available in the 

docket for this rulemaking. 

Sections IX.B through IX.K of this 

document name the specific SIP 

provisions identified in the Petition or 

by the EPA, including a summary of 

what the EPA proposed and followed by 

the EPA’s stated final action with 

respect to each SIP provision. 

1. Automatic Exemption Provisions 

A significant number of provisions 

identified by the Petitioner pertain to 

existing SIP provisions that create 

automatic exemptions for excess 

emissions during periods of SSM. Some 

of these provisions also pertain to 

exemptions for excess emissions that 

occur during maintenance, load change 

or other types of normal source 

operation. These provisions typically 

provide that a source subject to a 

specific SIP emission limitation is 

exempted from compliance during SSM, 

so that the excess emissions are defined 

as not violations. Most of these 

provisions are artifacts of the early 

phases of the SIP program, approved 

before state and EPA regulators 

recognized the implications of such 

exemptions. Whatever the genesis of 

these existing SIP provisions, however, 

these automatic exemptions from 

emission limitations are not consistent 

with the CAA, as the EPA has stated in 

its SSM Policy since at least 1982. 

After evaluating the Petition, the EPA 

proposed to determine that a number of 

states have existing SIP provisions that 

create impermissible automatic 

exemptions for excess emissions during 

malfunctions or during startup, 

shutdown or other types of normal 

source operation. In those instances 

where the EPA agreed that a SIP 

provision identified by the Petitioner 

contained such an exemption contrary 

to the requirements of the CAA, the EPA 

proposed to grant the Petition and 

accordingly to issue a SIP call to the 

appropriate state. 

2. Director’s Discretion Exemption 

Provisions 

Another category of problematic SIP 

provision identified by the Petitioner is 

exemptions for excess emissions that, 

while not automatic, are exemptions for 

such emissions granted at the discretion 

of state regulatory personnel. In some 

cases, the SIP provision in question may 

provide some minimal degree of process 

and some parameters for the granting of 

such discretionary exemptions, but the 

typical provision at issue allows state 

personnel to decide unilaterally and 

without meaningful limitations that 

what would otherwise be a violation of 

the applicable emission limitation is 

instead exempt. Because the state 

personnel have the authority to decide 

that the excess emissions at issue are 

not a violation of the applicable 

emission limitation, such a decision 

would transform the violation into a 

nonviolation, thereby barring 

enforcement by the EPA or others. 

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389NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). 

The EPA refers to this type of 

provision as a ‘‘director’s discretion’’ 

provision, and the EPA interprets the 

CAA generally to forbid such provisions 

in SIPs because they have the potential 

to undermine fundamental statutory 

objectives such as the attainment and 

maintenance of the NAAQS and to 

undermine effective enforcement of the 

SIP. As described in sections VII.C and 

VIII.A.3 of this document, unbounded 

director’s discretion provisions purport 

to allow unilateral revisions of approved 

SIP provisions without meeting the 

applicable statutory substantive and 

procedural requirements for SIP 

revisions. The specific SIP provisions at 

issue in the Petition are especially 

inappropriate because they purport to 

allow discretionary creation of case-bycase exemptions from the applicable 

emission limitations, when the CAA 

does not permit any such exemptions in 

the first instance. The practical impact 

of such provisions is that in effect they 

transform an enforcement discretion 

decision by the state (e.g., that the 

excess emission from a given SSM event 

should be excused for some reason) into 

an exemption from compliance that also 

prevents enforcement by the EPA or 

through a citizen suit. The EPA’s 

longstanding SSM Policy has 

interpreted the CAA to preclude SIP 

provisions in which a state’s exercise of 

its own enforcement discretion bars 

enforcement by the EPA or through a 

citizen suit. Where the EPA agreed that 

a SIP provision identified by the 

Petitioner contained such a 

discretionary exemption contrary to the 

requirements of the CAA, the EPA 

proposed to grant the Petition and to 

call for the state to rectify the problem. 

3. State-Only Enforcement Discretion 

Provisions 

The Petitioner identified existing SIP 

provisions in many states that 

ostensibly pertain to parameters for the 

exercise of enforcement discretion by 

state personnel for violations due to 

excess emissions during SSM events. 

The EPA’s SSM Policy has consistently 

encouraged states to utilize traditional 

enforcement discretion within 

appropriate bounds for such violations 

and, in the 1982 SSM Guidance, 

explicitly recommended criteria that 

states might consider in the event that 

they elected to formalize their 

enforcement discretion with provisions 

in the SIP. The intent has been that such 

enforcement discretion provisions in a 

SIP would be ‘‘state-only,’’ meaning that 

the provisions apply only to the state’s 

own enforcement personnel and not to 

the EPA or to others. 

The EPA determined that a number of 

states have SIP provisions that, when 

evaluated carefully, could reasonably be 

construed to allow the state to make 

enforcement discretion decisions that 

would purport to foreclose enforcement 

by the EPA under CAA section 113 or 

by citizens under section 304. In those 

instances where the EPA agreed that a 

specific provision could have the effect 

of impeding adequate enforcement of 

the requirements of the SIP by parties 

other than the state, the EPA proposed 

to grant the Petition and to take action 

to rectify the problem. By contrast, 

where the EPA’s evaluation indicated 

that the existing provision on its face or 

as reasonably construed could not be 

read to preclude enforcement by parties 

other than the state, the EPA proposed 

to deny the Petition, and the EPA 

invited comment on this issue in 

particular to assure that the state and 

the EPA have a common understanding 

that the provision does not have any 

impact on potential enforcement by the 

EPA or through a citizen suit. This 

process was intended to ensure that 

there is no misunderstanding in the 

future that the correct reading of the SIP 

provision would not bar enforcement by 

the EPA or through a citizen suit when 

the state elected to exercise its own 

enforcement discretion. 

In the February 2013 proposal, the 

EPA noted that another method by 

which to eliminate any potential 

ambiguity about the meaning of these 

enforcement discretion provisions 

would be for the state to revise its SIP 

to remove the provisions. Because these 

provisions are only applicable to the 

state, the EPA’s view was, and still is, 

that the provisions need not be included 

within the SIP. Thus, the EPA supports 

states that elect to revise their SIPs to 

remove these provisions to avoid any 

unnecessary confusion. 

4. Affirmative Defense Provisions 

The Petitioner asked the EPA to 

rescind its SSM Policy element that 

interpreted the CAA to allow SIPs to 

include affirmative defenses for 

violations due to excess emissions 

during any type of SSM events. Related 

to this request, the Petitioner asked the 

EPA to find that states with SIPs 

containing an affirmative defense to 

monetary penalties for excess emissions 

during SSM events are substantially 

inadequate because they do not comply 

with the CAA. If the EPA were to deny 

the Petitioner’s request that the EPA 

revise its interpretation of the CAA, the 

Petitioner asked that the EPA in the 

alternative require states with SIPs that 

contain such affirmative defense 

provisions to revise them so that they 

are consistent with the EPA’s 1999 SSM 

Guidance for excess emissions during 

SSM events and to issue a SIP call to 

states with provisions inconsistent with 

the EPA’s interpretation of the CAA. 

The Petitioner drew no distinction 

between affirmative defense provisions 

for malfunctions versus affirmative 

defense provisions for startup and 

shutdown or other normal modes of 

operation. As explained in section IV.B 

of the February 2013 proposal, the EPA 

did make such distinction in its 

proposed response to the Petition, at 

that time proposing to revise its SSM 

Policy to reflect an interpretation of the 

CAA that affirmative defense provisions 

applicable during startup and shutdown 

were not appropriate but reasoning that 

affirmative defense provisions remained 

appropriate for violations when due to 

malfunction events. Thus, in the 

February 2013 proposal, the EPA 

proposed to issue a SIP call to a state to 

rectify a problem with an affirmative 

defense provision only if the provision 

included an affirmative defense that was 

applicable to excess emissions during 

startup and shutdown or included an 

affirmative defense that was applicable 

to excess emissions during malfunctions 

but was inconsistent with the criteria 

recommended in the EPA’s SSM Policy. 

Subsequent to that February 2013 

proposal, a federal court ruled that the 

CAA precludes authority of the EPA to 

create affirmative defense provisions 

applicable to private civil suits. The 

NRDC v. EPA decision pertained to a 

challenge to the EPA’s NESHAP 

regulations issued pursuant to CAA 

section 112 to regulate hazardous air 

pollutants from sources that 

manufacture Portland cement.389 As 

explained in detail in section V of the 

SNPR, the court’s decision in NRDC v. 

EPA compelled the Agency to revise its 

interpretation of the CAA concerning 

the legal basis for affirmative defense 

provisions. As a result, the EPA 

proposed in the SNPR to further revise 

its SSM Policy with respect to 

affirmative defense provisions 

applicable to excess emissions during 

SSM events (as described in section V 

of the SNPR) and to apply its revised 

interpretation of the CAA to specific 

provisions in the SIPs of particular 

states (as described in section VII of the 

SNPR). 

For some of the affirmative defense 

provisions identified by the Petitioner, 

the EPA in the SNPR reproposed 

granting of the Petition but proposed a 

revised basis for its proposed findings of 

inadequacy and SIP calls. For other 

affirmative defense provisions identified 

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390See ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Hampshire; 

Reasonably Available Control Technology for the 

1997 8-Hour Ozone Standard; Direct final rule,’’ 77 

FR 66388 (November 5, 2012). 

391See ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Hampshire; 

Reasonably Available Control Technology Update 

To Address Control Techniques Guidelines Issued 

in 2006, 2007, and 2008; Direct final rule,’’ 77 FR 

66921 (November 8, 2012). 

by the Petitioner, the EPA in the SNPR 

reversed its prior proposed denial of the 

Petition, and it newly proposed findings 

of inadequacy and SIP calls. Further, for 

some affirmative defense provisions that 

were not explicitly identified by the 

Petitioner, the EPA in the SNPR 

proposed findings of inadequacy and 

SIP calls for additional affirmative 

defense provisions that were not 

explicitly identified by the Petitioner. 

B. Affected States in EPA Region I 

1. Maine 

As described in section IX.B.1 of the 

February 2013 proposal, the Petitioner 

first objected to a specific provision in 

the Maine SIP that provides an 

exemption for certain boilers from 

otherwise applicable SIP visible 

emission limits during startup and 

shutdown (06–096–101 Me. Code R. 

§ 3). Second, the Petitioner objected to 

a provision that empowers the state to 

‘‘exempt emissions occurring during 

periods of unavoidable malfunction or 

unplanned shutdown from civil penalty 

under section 349, subsection 2’’ (06– 

096–101 Me. Code R. § 4). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to 06–096–101 Me. Code R. § 3 

and 06–096–101 Me. Code R. § 4. 

Consequently, the EPA proposed to 

find that 06–096–101 Me. Code R. § 3 

and 06–096–101 Me. Code R. § 4 are 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to these 

provisions. 

In this final action, the EPA is 

granting the Petition with respect to 06– 

096–101 Me. Code R. § 3 and 06–096– 

101 Me. Code R. § 4. Accordingly, the 

EPA is finding that these provisions are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call to Maine to correct its 

SIP with respect to these provisions. 

This action is fully consistent with what 

the EPA proposed in February 2013. 

Please refer to the Response to Comment 

document available in the docket for 

this rulemaking concerning any 

comments specific to the Maine SIP that 

the EPA received and considered during 

the development of this rulemaking. 

2. New Hampshire 

As described in section IX.B.2 of the 

February 2013 proposal, the Petitioner 

objected to two generally applicable 

provisions in the New Hampshire SIP 

that allow emissions in excess of 

otherwise applicable SIP emission 

limitations during ‘‘malfunction or 

breakdown of any component part of the 

air pollution control equipment.’’ The 

Petitioner argued that the challenged 

provisions provide an automatic 

exemption for excess emissions during 

the first 48 hours when any component 

part of air pollution control equipment 

malfunctions (N.H. Code R. Env-A 

902.03) and further provide that ‘‘[t]he 

director may . . . grant an extension of 

time or a temporary variance’’ for excess 

emissions outside of the initial 48-hour 

time period (N.H. Code R. Env-A 

902.04). Second, the Petitioner objected 

to two specific provisions in the New 

Hampshire SIP that provide sourcespecific exemptions for periods of 

startup for ‘‘any process, manufacturing 

and service industry’’ (N.H. Code R. 

Env-A 1203.05) and for pre-June 1974 

asphalt plants during startup, provided 

they are at 60-percent opacity for no 

more than 3 minutes (N.H. Code R. EnvA 1207.02). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to N.H. Code R. Env-A 902.03, 

N.H. Code R. Env-A 1203.05 and N.H. 

Code R. Env-A 902.04. Also for reasons 

explained fully in the February 2013 

proposal, the EPA proposed to deny the 

Petition with respect to N.H. Code R. 

Env-A 1207.02. 

Consequently, the EPA proposed to 

find that N.H. Code R. Env-A 902.03, 

N.H. Code R. Env-A 1203.05 and N.H. 

Code R. Env-A 902.04 were 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to these 

provisions. Through comments 

submitted on the February 2013 

proposal, however, the EPA has 

ascertained that the versions of N.H. 

Code R. Env-A 902.03 and N.H. Code R. 

Env-A 902.04 identified in the Petition 

and evaluated in the February 2013 

proposal are no longer in the state’s SIP. 

In November 2012, the EPA approved a 

SIP revision that replaced N.H. Code R. 

Env-A 902.03 and N.H. Code R. Env-A 

902.04 with a new version of Env-A 900 

that does not contain the deficient 

provisions identified in the February 

2013 proposal.390 These provisions no 

longer exist for purposes of state or 

federal law. In addition, the EPA has 

determined that the version of N.H. 

Code R. Env-A 1203.05 identified in the 

Petition and the February 2013 proposal 

is no longer in the state’s SIP as a result 

of another SIP revision.391 Because 

these three provisions are no longer 

components of the EPA-approved SIP 

for the state of New Hampshire, the 

Petition is moot with respect to these 

provisions and there is no need for a SIP 

call with respect to these no longer 

extant provisions. 

In this final action, the EPA is 

denying the Petition with respect to 

N.H. Code R. Env-A 902.03, N.H. Code 

R. Env-A 902.04, N.H. Code R. Env-A 

1203.05 and N.H. Code R. Env-A 

1207.02. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the New 

Hampshire SIP that the EPA received 

and considered during the development 

of this rulemaking. 

3. Rhode Island 

As described in section IX.B.3 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision in the Rhode Island SIP that 

allows for a case-by-case petition 

procedure whereby a source can obtain 

a variance from state personnel under 

R.I. Gen. Laws § 23–23–15 to continue 

to operate during a malfunction of its 

control equipment that lasts more than 

24 hours, if the source demonstrates that 

enforcement would constitute undue 

hardship without a corresponding 

benefit (25–4–13 R.I. Code R. § 16.2). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to 25–4–13 R.I. Code R. § 16.2. 

Consequently, the EPA proposed to 

find that 25–4–13 R.I. Code R. § 16.2 is 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 25– 

4–13 R.I. Code R. § 16.2. Accordingly, 

the EPA is finding that this provision is 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Rhode Island SIP that the 

EPA received and considered during the 

development of this rulemaking. 

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C. Affected State in EPA Region II 

New Jersey 

As described in section IX.C.1 of the 

February 2013 proposal, the Petitioner 

objected to two specific provisions in 

the New Jersey SIP that allow for 

automatic exemptions for excess 

emissions during emergency situations. 

The Petitioner objected to the first 

provision because it provides industrial 

process units that have the potential to 

emit sulfur compounds an exemption 

from the otherwise applicable sulfur 

emission limitations where ‘‘[t]he 

discharge from any stack or chimney 

[has] the sole function of relieving 

pressure of gas, vapor or liquid under 

abnormal emergency conditions’’ (N.J. 

Admin. Code 7:27–7.2(k)(2)). The 

Petitioner objected to the second 

provision because it provides electric 

generating units (EGUs) an exemption 

from the otherwise applicable NOX

emission limitations when the unit is 

operating at ‘‘emergency capacity,’’ also 

known as a ‘‘MEG alert,’’ which is 

statutorily defined as a period in which 

one or more EGUs is operating at 

emergency capacity at the direction of 

the load dispatcher in order to prevent 

or mitigate voltage reductions or 

interruptions in electric service, or both 

(N.J. Admin. Code 7:27–19.1). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to N.J. Admin. Code 7:27– 

7.2(k)(2). Also for reasons explained 

fully in the February 2013 proposal, the 

EPA proposed to deny the Petition with 

respect to N.J. Admin. Code 7:27–19.1. 

Consequently, the EPA proposed to 

find that N.J. Admin. Code 7:27– 

7.2(k)(2) is substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to this provision. 

In this final action, the EPA is 

granting the Petition with respect to N.J. 

Admin. Code 7:27–7.2(k)(2) and 

denying the Petition with respect to N.J. 

Admin. Code 7:27–19.1. Accordingly, 

the EPA is finding that the provision in 

N.J. Admin. Code 7:27–7.2(k)(2) is 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the New Jersey SIP that the 

EPA received and considered during the 

development of this rulemaking. 

D. Affected States in EPA Region III 

1. Delaware 

As described in section IX.D.1 of the 

February 2013 proposal, the Petitioner 

objected to seven provisions in the 

Delaware SIP that provide exemptions 

during startup and shutdown from the 

otherwise applicable SIP emission 

limitations. The seven source-specific 

and pollutant-specific provisions that 

provide exemptions during periods of 

startup and shutdown are: 7–1100–1104 

Del. Code Regs § 1.5 (Particulate 

Emissions from Fuel Burning 

Equipment); 7–1100–1105 Del. Code 

Regs § 1.7 (Particulate Emissions from 

Industrial Process Operations); 7–1100– 

1108 Del. Code Regs § 1.2 (Sulfur 

Dioxide Emissions from Fuel Burning 

Equipment); 7–1100–1109 Del. Code 

Regs § 1.4 (Emissions of Sulfur 

Compounds From Industrial 

Operations); 7–1100–1114 Del. Code 

Regs § 1.3 (Visible Emissions); 7–1100– 

1124 Del. Code Regs § 1.4 (Control of 

Volatile Organic Compound Emissions); 

and 7–1100–1142 Del. Code Regs § 2.3.5 

(Specific Emission Control 

Requirements). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to 7–1100–1104 Del. Code Regs 

§ 1.5, 7–1100–1105 Del. Code Regs § 1.7, 

7–1100–1108 Del. Code Regs § 1.2, 7– 

1100–1109 Del. Code Regs § 1.4, 7– 

1100–1114 Del. Code Regs § 1.3, 7– 

1100–1124 Del. Code Regs § 1.4 and 7– 

1100–1142 Del. Code Regs § 2.3.5. 

Consequently, the EPA proposed to 

find that 7–1100–1104 Del. Code Regs 

§ 1.5, 7–1100–1105 Del. Code Regs § 1.7, 

7–1100–1108 Del. Code Regs § 1.2, 7– 

1100–1109 Del. Code Regs § 1.4, 7– 

1100–1114 Del. Code Regs § 1.3, 7– 

1100–1124 Del. Code Regs § 1.4 and 7– 

1100–1142 Del. Code Regs § 2.3.5 are 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to these 

provisions. 

In this final action, the EPA is 

granting the Petition with respect to 7– 

1100–1104 Del. Code Regs § 1.5, 7– 

1100–1105 Del. Code Regs § 1.7, 7– 

1100–1108 Del. Code Regs § 1.2, 7– 

1100–1109 Del. Code Regs § 1.4, 7– 

1100–1114 Del. Code Regs § 1.3, 7– 

1100–1124 Del. Code Regs § 1.4 and 7– 

1100–1142 Del. Code Regs § 2.3.1.6 

(updated to § 2.3.1.6 from earlier 

identification as § 2.3.5). Accordingly, 

the EPA is finding that these provisions 

are substantially inadequate to meet 

CAA requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. 

2. District of Columbia 

As described in section IX.D.2 of the 

February 2013 proposal, the Petitioner 

objected to five provisions in the 

District of Columbia (DC) SIP as being 

inconsistent with the CAA and the 

EPA’s SSM Policy. The Petitioner first 

objected to a generally applicable 

provision in the DC SIP that allows for 

discretionary exemptions during 

periods of maintenance or malfunction 

(D.C. Mun. Regs. tit. 20 § 107.3). 

Secondly, the Petitioner objected to the 

alternative limitations on stationary 

sources for visible emissions during 

periods of ‘‘start-up, cleaning, soot 

blowing, adjustment of combustion 

controls, or malfunction,’’ (D.C. Mun. 

Regs. tit. 20 § 606.1) and, for fuelburning equipment placed in initial 

operation before January 1977, 

alternative limits for visible emissions 

during startup and shutdown (D.C. 

Mun. Regs. tit. 20 § 606.2). The 

Petitioner also objected to the 

exemption from emission limitations for 

emergency standby engines (D.C. Mun. 

Regs. tit. 20 § 805.1(c)(2)). Finally, the 

Petitioner objected to the provision in 

the DC SIP that provides an affirmative 

defense for violations of visible 

emission limitations during 

‘‘unavoidable malfunction’’ (D.C. Mun. 

Regs. tit. 20 § 606.4). 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to D.C. 

Mun. Regs. tit. 20 § 107.3 and D.C. Mun. 

Regs. tit. 20 §§ 606.1 and 606.2. Also for 

reasons explained in the February 2013 

proposal, the EPA proposed to deny the 

Petition with respect to D.C. Mun. Regs. 

tit. 20 § 805.1(c)(2). Also for reasons 

explained in the February 2013 

proposal, the EPA proposed to grant the 

petition with respect to D.C. Mun. Regs. 

tit. 20 § 606.4 on the basis that it was 

not a permissible affirmative defense 

provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s SSM Policy at the time. 

Subsequently, for reasons explained 

in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

the affirmative defense provision in D.C. 

Mun. Regs. tit. 20 § 606.4, but it 

proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. 

Consequently, the EPA proposed to 

find that D.C. Mun. Regs. tit. 20 § 107.3, 

D.C. Mun. Regs. tit. 20 §§ 606.1 and 

606.2 and D.C. Mun. Regs. tit. 20 § 606.4 

are substantially inadequate to meet 

CAA requirements and thus proposed to 

issue a SIP call with respect to these 

provisions. 

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392As explained in the February 2013 proposal, 

the Petitioner specifically focused on concern with 

W. Va. Code R. § 45–2–10.1, but the same issue 

affects W. Va. Code R. § 45–2–10.2, and so the EPA 

similarly proposed to issue a SIP call with respect 

to the latter provision. See 78 FR 12459 at 12500, 

n.111. W. Va. Code R. § 45–2–10.2 is an alternative 

limit that applies during periods of maintenance. In 

the February 2013 proposal, the EPA noted that this 

provision was inconsistent with the EPA’s SSM 

Policy interpreting the CAA because it was an 

alternative limit that specifically applied during 

periods of maintenance. Although the EPA 

originally contemplated that an alternative emission 

limitation could appropriately apply only during 

startup or shutdown, the EPA recognizes in section 

VII.B of this document that it may be appropriate 

for an air agency to establish alternative emission 

limitations that apply during modes of source 

operation other than during startup and shutdown, 

but any such alternative emission limitations 

should be developed using the same criteria that the 

EPA recommends for those applicable during 

startup and shutdown. The alternative emission 

limitation applicable during maintenance does not 

appear to have been developed using the 

Continued 

In this final action, the EPA is 

granting the Petition with respect to 

D.C. Mun. Regs. tit. 20 § 107.3, D.C. 

Mun. Regs. tit. 20 §§ 606.1 and 606.2 

and D.C. Mun. Regs. tit. 20 § 606.4 and 

is denying the Petition with respect to 

D.C. Mun. Regs. tit. 20 § 805.1(c)(2). 

Accordingly, the EPA is finding that the 

provisions in D.C. Mun. Regs. tit. 20 

§ 107.3, D.C. Mun. Regs. tit. 20 §§ 606.1 

and 606.2 and D.C. Mun. Regs. tit. 20 

§ 606.4 are substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call to the District of 

Columbia to correct its SIP with respect 

to these provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the DC SIP 

that the EPA received and considered 

during the development of this 

rulemaking. 

3. Virginia 

As described in section IX.D.3 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision in the Virginia SIP that allows 

for discretionary exemptions during 

periods of malfunction (9 Va. Admin. 

Code § 5–20–180(G)). First, the 

Petitioner objected because this 

provision provides an exemption from 

the otherwise applicable SIP emission 

limitations. Second, the Petitioner 

objected to the discretionary exemption 

for excess emissions during malfunction 

because the provision gives the state the 

authority to determine whether a 

violation ‘‘shall be judged to have taken 

place.’’ Third, the Petitioner argued that 

while the regulation provides criteria, 

akin to an affirmative defense, by which 

the state must make such a judgment 

that the event is not a violation, the 

criteria ‘‘fall far short of EPA policy at 

the time’’ and the provision ‘‘fails to 

establish any procedure through which 

the criteria are to be evaluated.’’ 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to 9 Va. Admin. Code § 5–20– 

180(G). Also for reasons explained in 

the February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to this provision on the basis 

that it was not a permissible affirmative 

defense provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s SSM Policy. 

Subsequently, for reasons explained 

in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

9 Va. Admin. Code § 5–20–180(G), but 

it proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. 

Consequently, the EPA proposed to 

find that 9 Va. Admin. Code § 5–20– 

180(G) is substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 9 

Va. Admin. Code § 5–20–180(G) and the 

EPA is thus issuing a SIP call with 

respect to this provision. This action is 

fully consistent with what the EPA 

proposed in February 2013 as revised in 

the SNPR. Please refer to the Response 

to Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the Virginia 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

4. West Virginia 

As described in section IX.D.4 of the 

February 2013 proposal, the Petitioner 

made four types of objections 

identifying inadequacies regarding SSM 

provisions in West Virginia’s SIP. First, 

the Petitioner objected to three specific 

provisions in the West Virginia SIP that 

allow for automatic exemptions from 

emission limitations, standards, and 

monitoring and recordkeeping 

requirements for excess emission during 

startup, shutdown, or malfunction (W. 

Va. Code R. § 45–2–9.1, W. Va. Code R. 

§ 45–7–10.3 and W. Va. Code R. § 45– 

40–100.8). Second, the Petitioner 

objected to seven discretionary 

exemption provisions because these 

provisions provide exemptions from the 

otherwise applicable SIP emission 

limitations. The Petitioner noted that 

the provisions allow a state official to 

‘‘grant an exception to the otherwise 

applicable visible emissions standards’’ 

due to ‘‘unavoidable shortage of fuel’’ or 

‘‘any emergency situation or condition 

creating a threat to public safety or 

welfare’’ (W. Va. Code R. § 45–2–10.1), 

to permit excess emissions ‘‘due to 

unavoidable malfunctions of 

equipment’’ (W. Va. Code R. § 45–3–7.1, 

W. Va. Code R. § 45–5–13.1, W. Va. 

Code R. § 45–6–8.2, W. Va. Code R. 

§ 45–7–9.1 and W. Va. Code R. § 45–10– 

9.1) and to permit exceedances where 

the limit cannot be ‘‘satisfied’’ because 

of ‘‘routine maintenance’’ or 

‘‘unavoidable malfunction’’ (W. Va. 

Code R. § 45–21–9.3). Third, the 

Petitioner objected to the alternative 

limit imposed on hot mix asphalt plants 

during periods of startup and shutdown 

in W. Va. Code R. § 45–3–3.2 because it 

was ‘‘not sufficiently justified’’ under 

the EPA’s SSM Policy regarding source 

category-specific rules. Fourth, the 

Petitioner objected to a discretionary 

provision allowing the state to approve 

an alternative visible emission standard 

during startups and shutdowns for 

manufacturing processes and associated 

operations (W. Va. Code R. § 45–7–10.4). 

The Petitioner argued that such a 

provision ‘‘allows a decision of the state 

to preclude enforcement by EPA and 

citizens.’’ 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to W. Va. 

Code R. § 45–2–9.1, W. Va. Code R. 

§ 45–7–10.3 and W. Va. Code R. § 45– 

40–100.8 on the basis that each of these 

provisions allows for automatic 

exemptions. Also for reasons explained 

in the February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to W. Va. Code R. § 45–2–10.1, 

W. Va. Code R. § 45–3–7.1, W. Va. Code 

R. § 45–5–13.1, W. Va. Code R. § 45–6– 

8.2, W. Va. Code R. § 45–7–9.1, W. Va. 

Code R. § 45–10–9.1 and W. Va. Code R. 

§ 45–21–9.3 on the basis that these 

provisions allow for discretionary 

exemptions from otherwise applicable 

SIP emission limitations. Further, for 

reasons explained in the February 2013 

proposal, the EPA proposed to grant the 

Petition with respect to W. Va. Code R. 

§ 45–3–3.2, W. Va. Code R. § 45–2–10.2 

and W. Va. Code R. § 45–7–10.4. The W. 

Va. Code R. § 45–3–3.2 applies to a 

broad category of sources and is not 

narrowly limited to a source category 

that uses a specific control strategy, as 

required by the EPA’s SSM Policy 

interpreting the CAA. Similarly, W. Va. 

Code R. § 45–2–10.2 is inconsistent with 

the EPA’s SSM Policy interpreting the 

CAA because it is an alternative limit 

that allows for discretionary exemptions 

from otherwise applicable SIP emission 

limitations.392 The W. Va. Code R. § 45– 

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recommended criteria for such alternative emission 

limitations. In addition, the EPA finds that this 

provision, like W. Va. Code R. § 45–2–10.1, is also 

deficient because it allows for discretionary 

exemptions from otherwise applicable SIP emission 

limitations. As noted in the proposal, such 

provisions that authorize director’s discretion 

exemptions are impermissible in SIPs. 

393The EPA notes that in the February 2013 

proposal, it incorrectly cited Fla. Admin. Code Ann 

Rule 52.201.700 when it intended to cite Rule 

52.210.700. The transposition of numbers was a 

typographical error. Commenters on the proposal 

correctly recognized that the EPA intended to 

instead refer to Fla. Admin. Code Ann Rule 

52.210.700. See, e.g., comment letter received from 

the Florida Department of Environmental 

Protection, May 13, 2013, in the rulemaking docket 

at EPA–HQ–OAR–2012–0322–0878. 

7–10.4 allows state officials the 

discretion to establish alternative visible 

emissions standards during startup and 

shutdown upon application. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified 

one affirmative defense provision in the 

West Virginia SIP in W. Va. Code R. 

§ 45–2–9.4 that was not identified by the 

Petitioner, and the EPA proposed to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

this provision. 

Consequently, the EPA proposed to 

find that W. Va. Code R. § 45–2–9.1, W. 

Va. Code R. § 45–7–10.3, W. Va. Code R. 

§ 45–40–100.8, W. Va. Code R. § 45–2– 

10.1, W. Va. Code R. § 45–3–7.1, W. Va. 

Code R. § 45–5–13.1, W. Va. Code R. 

§ 45–6–8.2, W. Va. Code R. § 45–7–9.1, 

W. Va. Code R. § 45–10–9.1, W. Va. 

Code R. § 45–21–9.3, W. Va. Code R. 

§ 45–3–3.2 and W. Va. Code R. § 45–7– 

10.4, which are provisions identified by 

the Petitioner, and W. Va. Code R. § 45– 

2–10.2 and W. Va. Code R. § 45–2–9.4, 

which are provisions identified by the 

EPA, are substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to the 

West Virginia SIP provisions identified 

by the Petitioner. Accordingly, the EPA 

is finding that the provisions in W. Va. 

Code R. § 45–2–9.1, W. Va. Code R. 

§ 45–7–10.3, W. Va. Code R. § 45–40– 

100.8, W. Va. Code R. § 45–2–10.1, W. 

Va. Code R. § 45–3–7.1, W. Va. Code R. 

§ 45–5–13.1, W. Va. Code R. § 45–6–8.2, 

W. Va. Code R. § 45–7–9.1, W. Va. Code 

R. § 45–10–9.1, W. Va. Code R. § 45–21– 

9.3, W. Va. Code R. § 45–3–3.2 and W. 

Va. Code R. § 45–7–10.4, which are 

provisions identified by the Petitioner, 

and W. Va. Code R. § 45–2–10.2 and W. 

Va. Code R. § 45–2–9.4, which are 

provisions identified by the EPA, are 

substantially inadequate to meet CAA 

requirements. The EPA is thus issuing a 

SIP call to West Virginia to correct its 

SIP with respect to these provisions. 

This action is fully consistent with what 

the EPA proposed in February 2013 as 

revised in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the West Virginia SIP that the 

EPA received and considered during the 

development of this rulemaking. 

E. Affected States and Local 

Jurisdictions in EPA Region IV 

1. Alabama 

As described in section IX.E.1 of the 

February 2013 proposal, the Petitioner 

objected to two generally applicable 

provisions in the Alabama SIP that 

allow for discretionary exemptions 

during startup, shutdown or load 

change (Ala Admin Code Rule 335–3– 

14–.03(1)(h)(1)), and during emergencies 

(Ala Admin Code Rule 335–3–14– 

.03(1)(h)(2)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Ala Admin Code Rule 335–3– 

14–.03(1)(h)(1) and Ala Admin Code 

Rule 335–3–14–.03(1)(h)(2). 

Consequently, the EPA proposed to 

find that Ala Admin Code Rule 335–3– 

14–.03(1)(h)(1) and Ala Admin Code 

Rule 335–3–14–.03(1)(h)(2) are 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to these 

provisions. 

In this final action, the EPA is 

granting the Petition with respect to Ala 

Admin Code Rule 335–3–14–.03(1)(h)(1) 

and Ala Admin Code Rule 335–3–14– 

.03(1)(h)(2). Accordingly, the EPA is 

finding that these provisions are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provision. This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Alabama SIP that the EPA 

received and considered during the 

development of this rulemaking. 

2. Florida 

As described in section IX.E.2 of the 

February 2013 proposal, the Petitioner 

objected to three specific provisions in 

the Florida SIP that allow for generally 

applicable automatic exemptions for 

excess emissions during SSM (Fla. 

Admin. Code Ann Rule 62–210.700(1)), 

for fossil fuel steam generators during 

startup and shutdown (Fla. Admin. 

Code Ann Rule 62–210.700(2)), and for 

such sources during boiler cleaning and 

load change (Fla. Admin. Code Ann 

Rule 62–210.700(3)).393 After objecting 

to the three provisions that create the 

exemptions, the Petitioner noted that 

the related provision in Fla. Admin. 

Code Ann Rule 62–210.700(4) reduces 

the potential scope of the exemptions in 

the other three provisions if the excess 

emissions at issue are caused entirely or 

in part by things such as poor 

maintenance but that it does not 

eliminate the impermissible 

exemptions. 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Fla. Admin. Code Ann Rule 

62–210.700(1), Fla. Admin. Code Ann 

Rule 62–210.700(2), Fla. Admin. Code 

Ann Rule 62–210.700(3) and Fla. 

Admin. Code Ann Rule 62–210.700(4). 

Consequently, the EPA proposed to 

find that Fla. Admin. Code Ann Rule 

62–210.700(1), Fla. Admin. Code Ann 

Rule 62–210.700(2), Fla. Admin. Code 

Ann Rule 62–210.700(3) and Fla. 

Admin. Code Ann Rule 62–210.700(4) 

are substantially inadequate to meet 

CAA requirements and thus proposed to 

issue a SIP call with respect to these 

provisions. 

In this final action, the EPA is 

granting the Petition with respect to Fla. 

Admin. Code Ann Rule 62–210.700(1), 

Fla. Admin. Code Ann Rule 62– 

210.700(2), Fla. Admin. Code Ann Rule 

62–210.700(3) and Fla. Admin. Code 

Ann Rule 62–210.700(4). Accordingly, 

the EPA is finding that these provisions 

are substantially inadequate to meet 

CAA requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Florida SIP that the EPA 

received and considered during the 

development of this rulemaking. 

3. Georgia 

As described in section IX.E.3 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Georgia 

SIP that provides for exemptions for 

excess emissions during SSM under 

certain circumstances (Ga. Comp. R. & 

Regs. 391–3–1–.02(2)(a)(7)). The 

Petitioner acknowledged that this 

provision of the Georgia SIP includes 

some conditions for when sources may 

be entitled to seek the exemption under 

state law, such as when the source has 

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394See SNPR, 79 FR 55919 at 55925. 

395See Approval and Promulgation of 

Implementation Plans; Kentucky; Approval of 

Revisions to the Jefferson County Portion of the 

Kentucky SIP; Emissions During Startups, 

Shutdowns, and Malfunctions, 79 FR 33101 (June 

10, 2014). 

used ‘‘best operational practices’’ to 

minimize emissions during the SSM 

event. 

First, the Petitioner objected because 

the provision creates an exemption from 

the applicable emission limitations by 

providing that the excess emissions 

‘‘shall be allowed’’ subject to certain 

conditions. Second, the Petitioner 

argued that although the provision 

provides some ‘‘substantive criteria,’’ 

the provision does not meet the criteria 

the EPA recommended at the time for an 

affirmative defense provision consistent 

with the requirements of the CAA in the 

EPA’s SSM Policy. Third, the Petitioner 

asserted that the provision is not a 

permissible ‘‘enforcement discretion’’ 

provision applicable only to state 

personnel, because it ‘‘is susceptible to 

interpretation as an enforcement 

exemption, precluding EPA and citizen 

enforcement as well as state 

enforcement.’’ 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to Ga. 

Comp. R. & Regs. 391–3–1–.02(2)(a)(7). 

Also for reasons explained in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to this provision on the basis 

that it was not a permissible affirmative 

defense provision consistent with the 

requirements of the CAA and the EPA’s 

recommendations in the EPA’s SSM 

Policy at the time. 

Subsequently, for reasons explained 

in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

Ga. Comp. R. & Regs. 391–3–1– 

.02(2)(a)(7), but it proposed to revise the 

basis for the finding of substantial 

inadequacy and the SIP call for this 

provision. 

Consequently, the EPA proposed to 

find that Ga. Comp. R. & Regs. 391–3– 

1–.02(2)(a)(7) is substantially inadequate 

to meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to this provision. 

In this final action, the EPA is 

granting the Petition with respect to Ga. 

Comp. R. & Regs. 391–3–1–.02(2)(a)(7). 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the Georgia 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

4. Kentucky 

As described in section IX.E.4 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision that allows discretionary 

exemptions from otherwise applicable 

SIP emission limitations in Kentucky’s 

SIP (401 KAR 50:055 § 1(1)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to 401 KAR 50:055 § 1(1). 

Consequently, the EPA proposed to 

find that 401 KAR 50:055 § 1(1) is 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 401 

KAR 50:055 § 1(1). Accordingly, the 

EPA is finding that this provision is 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Kentucky SIP that the 

EPA received and considered during the 

development of this rulemaking. 

5. Kentucky: Jefferson County 

As described in section IX.E.5 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision in the Jefferson County Air 

Regulations 1.07 because it provided for 

discretionary exemptions from 

compliance with emission limitations 

during SSM. The provision required 

different demonstrations for exemptions 

for excess emissions during startup and 

shutdown (Regulation 1.07 § 3), 

malfunction (Regulation 1.07 § 4 and 

§ 7) and emergency (Regulation 1.07 § 5 

and § 7). Second, the Petitioner objected 

to the affirmative defense for 

emergencies in Jefferson County Air 

Regulations 1.07. 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to 

provisions in the Jefferson County Air 

Regulations 1.07. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reversed its 

prior proposed granting of the Petition 

with respect to Jefferson County Air 

Regulations 1.07. For Jefferson County, 

Kentucky, the provisions for which the 

EPA proposed in February 2013 to grant 

the Petition were subsequently removed 

from the SIP. Thus, in the SNPR, the 

EPA proposed instead to deny the 

Petition.394 As explained in the SNPR, 

the state of Kentucky has revised the SIP 

provisions applicable to Jefferson 

County and eliminated the SIP 

inadequacies identified in the February 

2013 proposal document. The EPA has 

already approved the necessary SIP 

revisions.395 Accordingly, the EPA’s 

final action on the Petition does not 

include a finding of substantial 

inadequacy and SIP call for Jefferson 

County, Kentucky. 

In this final action, the EPA is 

denying the Petition with respect to 

Jefferson County Air Regulations 1.07. 

This action is fully consistent with what 

the EPA proposed in February 2013 as 

revised in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Kentucky SIP that the 

EPA received and considered during the 

development of this rulemaking. 

6. Mississippi 

As described in section IX.E.6 of the 

February 2013 proposal, the Petitioner 

objected to two generally applicable 

provisions in the Mississippi SIP that 

allow for affirmative defenses for 

violations of otherwise applicable SIP 

emission limitations during periods of 

upset, i.e., malfunctions (11–1–2 Miss. 

Code R. § 10.1) and unavoidable 

maintenance (11–1–2 Miss. Code R. 

§ 10.3). First, the Petitioner objected to 

both of these provisions based on its 

assertion that the CAA allows no 

affirmative defense provisions in SIPs. 

Second, the Petitioner asserted that even 

if affirmative defense provisions were 

permissible under the CAA, the 

affirmative defenses in these provisions 

‘‘fall far short of the EPA policy at the 

time.’’ The Petitioner also objected to a 

generally applicable provision that 

provides an exemption from otherwise 

applicable SIP emission limitations 

during startup and shutdown (11–1–2 

Miss. Code R. § 10.2). 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to 11–1– 

2 Miss. Code R. § 10.1 and 11–1–2 Miss. 

Code R. § 10.3. Also for reasons 

explained in the February 2013 

proposal, the EPA proposed to grant the 

petition with respect to these provisions 

on the basis that they were not 

appropriate as an affirmative defense 

provisions because they were 

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33964 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

inconsistent with fundamental 

requirements of the CAA. Also for 

reasons explained fully in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to 11–1– 

2 Miss. Code R. § 10.2. 

Subsequently, for reasons explained 

in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

the affirmative defense provisions in 

11–1–2 Miss. Code R. § 10.1 and 11–1– 

2 Miss. Code R. § 10.3, but it proposed 

to revise the basis for the finding of 

substantial inadequacy and the SIP call 

for these provisions. 

Consequently, the EPA proposed to 

find that 11–1–2 Miss. Code R. § 10.1, 

11–1–2 Miss. Code R. § 10.2 and 11–1– 

2 Miss. Code R. § 10.3 are substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 11– 

1–2 Miss. Code R. § 10.1, 11–1–2 Miss. 

Code R. § 10.2 and 11–1–2 Miss. Code 

R. § 10.3. Accordingly, the EPA is 

finding that these provisions are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the 

Mississippi SIP that the EPA received 

and considered during the development 

of this rulemaking. 

7. North Carolina 

As described in section IX.E.7 of the 

February 2013 proposal, the Petitioner 

objected to two generally applicable 

provisions in the North Carolina SIP 

that provide exemptions for emissions 

exceeding otherwise applicable SIP 

emission limitations at the discretion of 

the state agency during malfunctions 

(15A N.C. Admin. Code 2D.0535(c)) and 

during startup and shutdown (15A N.C. 

Admin. Code 2D.0535(g)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to 15A N.C. Admin. Code 

2D.0535(c) and 15A N.C. Admin. Code 

2D.0535(g). 

Consequently, the EPA proposed to 

find that 15A N.C. Admin. Code 

2D.0535(c) and 15A N.C. Admin. Code 

2D.0535(g) are substantially inadequate 

to meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 15A 

N.C. Admin. Code 2D.0535(c) and 15A 

N.C. Admin. Code 2D.0535(g). 

Accordingly, the EPA is finding that 

these provisions are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. This 

action is fully consistent with what the 

EPA proposed in February 2013. Please 

refer to the Response to Comment 

document available in the docket for 

this rulemaking concerning any 

comments specific to the North Carolina 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

8. North Carolina: Forsyth County 

As described in section IX.E.8 of the 

February 2013 proposal, the Petitioner 

objected to two generally applicable 

provisions in the Forsyth County Code 

that provide exemptions for emissions 

exceeding otherwise applicable SIP 

emission limitations at the discretion of 

a local official during malfunctions 

(Forsyth County Code, ch. 3, 3D.0535(c)) 

and startup and shutdown (Forsyth 

County Code, ch. 3, 3D.0535(g)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Forsyth County Code, ch. 3, 

3D.0535(c) and Forsyth County Code, 

ch. 3, 3D.0535(g). 

Consequently, the EPA proposed to 

find that Forsyth County Code, ch. 3, 

3D.0535(c) and Forsyth County Code, 

ch. 3, 3D.0535(g) are substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

Forsyth County Code, ch. 3, 3D.0535(c) 

and Forsyth County Code, ch. 3, 

3D.0535(g). Accordingly, the EPA is 

finding that these provisions are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the North Carolina SIP that 

the EPA received and considered during 

the development of this rulemaking. 

9. South Carolina 

As described in section IX.E.9 of the 

February 2013 proposal, the Petitioner 

objected to three provisions in the South 

Carolina SIP, arguing that they 

contained impermissible source 

category- and pollutant-specific 

exemptions. The Petitioner 

characterized these provisions as 

providing exemptions from opacity 

limits for fuel-burning operations for 

excess emissions that occur during 

startup or shutdown (S.C. Code Ann. 

Regs. 61–62.5 St 1(C)), exemptions from 

NOX limits for special-use burners that 

are operated less than 500 hours per 

year (S.C. Code Ann. Regs. 61–62.5 St 

5.2(I)(b)(14)) and exemptions from 

sulfur limits for kraft pulp mills for 

excess emissions that occur during SSM 

events (S.C. Code Ann. Regs. St 

4(XI)(D)(4)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to S.C. Code Ann. Regs. 61–62.5 

St 1(C) and S.C. Code Ann. Regs. St 

4(XI)(D)(4). Also for reasons explained 

fully in the February 2013 proposal, the 

EPA proposed to deny the Petition with 

respect to S.C. Code Ann. Regs. 61–62.5 

St 5.2(I)(b)(14). 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified 

one affirmative defense provision in the 

South Carolina SIP in S.C. Code Ann. 

Regs. 62.1, Section II(G)(6) that was not 

identified by the Petitioner, and the EPA 

proposed to make a finding of 

substantial inadequacy and to issue a 

SIP call for this provision. 

Consequently, the EPA proposed to 

find that the provisions in S.C. Code 

Ann. Regs. 61–62.5 St 1(C), S.C. Code 

Ann. Regs. St 4(XI)(D)(4) and S.C. Code 

Ann. Regs. 62.1, Section II(G)(6) are 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to these 

provisions. 

In this final action, the EPA is 

granting the Petition with respect to S.C. 

Code Ann. Regs. 61–62.5 St 1(C), S.C. 

Code Ann. Regs. St 4(XI)(D)(4) and S.C. 

Code Ann. Regs. 62.1, Section II(G)(6) 

and denying the Petition with respect to 

S.C. Code Ann. Regs. 61–62.5 St 

5.2(I)(b)(14). Accordingly, the EPA is 

finding that the provisions in S.C. Code 

Ann. Regs. 61–62.5 St 1(C), S.C. Code 

Ann. Regs. St 4(XI)(D)(4) and S.C. Code 

Ann. Regs. 62.1, Section II(G)(6) are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the South 

Carolina SIP that the EPA received and 

considered during the development of 

this rulemaking. 

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10. Tennessee 

As described in section IX.E.10 of the 

February 2013 proposal, the Petitioner 

objected to three provisions in the 

Tennessee SIP. First, the Petitioner 

objected to two provisions that 

authorize a state official to decide 

whether to ‘‘excuse or proceed upon’’ 

(Tenn. Comp. R. & Regs. 1200–3–20– 

.07(1)) violations of otherwise 

applicable SIP emission limitations that 

occur during ‘‘malfunctions, startups, 

and shutdowns’’ (Tenn. Comp. R. & 

Regs. 1200–3–20–.07(3)). Second, the 

Petitioner objected to a provision that 

excludes excess visible emissions from 

the requirement that the state 

automatically issue a notice of violation 

for all excess emissions (Tenn. Comp. R. 

& Regs. 1200–3–5–.02(1)). This 

provision states that ‘‘due allowance 

may be made for visible emissions in 

excess of that permitted in this chapter 

which are necessary or unavoidable due 

to routine startup and shutdown 

conditions.’’ 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Tenn. Comp. R. & Regs. 1200– 

3–20–.07(1), Tenn. Comp. R. & Regs. 

1200–3–20–.07(3) and Tenn. Comp. R. & 

Regs. 1200–3–5–.02(1). 

Consequently, the EPA proposed to 

find that Tenn. Comp. R. & Regs. 1200– 

3–20–.07(1), Tenn. Comp. R. & Regs. 

1200–3–20–.07(3) and Tenn. Comp. R. & 

Regs. 1200–3–5–.02(1) are substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

Tenn. Comp. R. & Regs. 1200–3–20– 

.07(1), Tenn. Comp. R. & Regs. 1200–3– 

20–.07(3) and Tenn. Comp. R. & Regs. 

1200–3–5–.02(1). Accordingly, the EPA 

is finding that these provisions are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Tennessee SIP that the 

EPA received and considered during the 

development of this rulemaking. 

11. Tennessee: Knox County 

As described in section IX.E.11 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Knox 

County portion of the Tennessee SIP 

that bars evidence of a violation of SIP 

emission limitations from being used in 

a citizen enforcement action (Knox 

County Regulation 32.1(C)). The 

provision specifies that ‘‘[a] 

determination that there has been a 

violation of these regulations or orders 

issued pursuant thereto shall not be 

used in any law suit brought by any 

private citizen.’’ 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Knox County Regulation 

32.1(C). For instance, the regulation was 

inconsistent with requirements related 

to credible evidence. 

Consequently, the EPA proposed to 

find that Knox County Regulation 

32.1(C) is substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 

Knox County Regulation 32.1(C). 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Tennessee SIP that the 

EPA received and considered during the 

development of this rulemaking. 

12. Tennessee: Shelby County 

As described in section IX.E.12 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Shelby 

County Code (Shelby County Code § 16– 

87) that addresses enforcement for 

excess emissions that occur during 

‘‘malfunctions, startups, and 

shutdowns’’ by incorporating by 

reference the state’s provisions in Tenn. 

Comp. R. & Regs. 1200–3–20. Shelby 

County Code § 16–87 provides that ‘‘all 

such additions, deletions, changes and 

amendments as may subsequently be 

made’’ to Tennessee’s regulations will 

automatically become part of the Shelby 

County Code. 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Shelby County Code § 16–87. 

Consequently, the EPA proposed to 

find that Shelby County Code § 16–87 is 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 

Shelby County Code § 16–87. 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Tennessee SIP that the 

EPA received and considered during the 

development of this rulemaking. 

F. Affected States in EPA Region V 

1. Illinois 

As described in section IX.F.1 of the 

February 2013 proposal, the Petitioner 

objected to three generally applicable 

provisions in the Illinois SIP which 

together have the effect of providing 

discretionary exemptions from 

otherwise applicable SIP emission 

limitations. The Petitioner noted that 

the provisions invite sources to request, 

during the permitting process, advance 

permission to continue to operate 

during a malfunction or breakdown, 

and, similarly to request advance 

permission to ‘‘violate’’ otherwise 

applicable emission limitations during 

startup (Ill. Admin. Code tit. 35 

§ 201.261). The Illinois SIP provisions 

establish criteria that a state official 

must consider before granting the 

advance permission to violate the 

emission limitations (Ill. Admin. Code 

tit. 35 § 201.262). However, the 

Petitioner asserted, the provisions state 

that, once granted, the advance 

permission to violate the emission 

limitations ‘‘shall be a prima facie 

defense to an enforcement action’’ (Ill. 

Admin. Code tit. 35 § 201.265). 

Further, the Petitioner objected to the 

use of the term ‘‘prima facie defense’’ in 

Ill. Admin. Code tit. 35 § 201.265, 

arguing that the term is ‘‘ambiguous in 

its operation.’’ The Petitioner argued 

that the provision is not clear regarding 

whether the defense is to be evaluated 

‘‘in a judicial or administrative 

proceeding or whether the Agency 

determines its availability.’’ Allowing 

defenses to be raised in these undefined 

contexts, the Petitioner argued, is 

‘‘inconsistent with the enforcement 

structure of the Clean Air Act.’’ 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to Ill. 

Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262 and Ill. 

Admin. Code tit. 35 § 201.265. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

the affirmative defense provisions in Ill. 

Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262 and Ill. 

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Admin. Code tit. 35 § 201.265, but it 

proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for these provisions. 

Consequently, the EPA proposed to 

find that Ill. Admin. Code tit. 35 

§ 201.261, Ill. Admin. Code tit. 35 

§ 201.262 and Ill. Admin. Code tit. 35 

§ 201.265 are substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to Ill. 

Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262 and Ill. 

Admin. Code tit. 35 § 201.265. 

Accordingly, the EPA is finding that 

these provisions are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. This 

action is fully consistent with what the 

EPA proposed in February 2013 as 

revised in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Illinois SIP that the EPA 

received and considered during the 

development of this rulemaking. 

2. Indiana 

As described in section IX.F.2 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision in the Indiana SIP that allows 

for discretionary exemptions during 

malfunctions (326 Ind. Admin. Code 

1–6–4(a)). The Petitioner noted that the 

provision is ambiguous because it states 

that excess emissions during 

malfunction periods ‘‘shall not be 

considered a violation’’ if the source 

demonstrates that a number of 

conditions are met (326 Ind. Admin. 

Code 1–6–4(a)), but the provision does 

not specify to whom or in what forum 

such demonstration must be made. 

If the demonstration was required to 

have been made in a showing to the 

state, the Petitioner argued, the 

provision would give a state official the 

sole authority to determine that the 

excess emissions were not a violation 

and could thus be read to preclude 

enforcement by the EPA or citizens in 

the event that the state official elects not 

to treat the excess emissions as a 

violation. If instead, as the Petitioner 

noted, the demonstration was required 

to have been made in an enforcement 

context, the provision could be 

interpreted as providing an affirmative 

defense. 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to 326 

Ind. Admin. Code 1–6–4(a). 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

326 Ind. Admin. Code 1–6–4(a), but it 

proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. 

Consequently, the EPA proposed to 

find that 326 Ind. Admin. Code 1–6–4(a) 

is substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 326 

Ind. Admin. Code 1–6–4(a). 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the Indiana 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

3. Michigan 

As described in section IX.F.3 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision in Michigan’s SIP, Mich. 

Admin. Code r. 336.1916, that provides 

for an affirmative defense to monetary 

penalties for violations of otherwise 

applicable SIP emission limitations 

during periods of startup and shutdown. 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to Mich. 

Admin. Code r. 336.1916. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

the affirmative defense provision in 

Mich. Admin. Code r. 336.1916, but it 

proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. 

Consequently, the EPA proposed to 

find that Mich. Admin. Code r. 336.1916 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 

Mich. Admin. Code r. 336.1916. 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the Michigan 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

4. Minnesota 

As described in section IX.F.4 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Minnesota 

SIP that provides automatic exemptions 

for excess emissions resulting from 

flared gas at petroleum refineries when 

those flares are caused by SSM (Minn. 

R. 7011.1415). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Minn. R. 7011.1415. 

Consequently, the EPA proposed to 

find that Minn. R. 7011.1415 is 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 

Minn. R. 7011.1415. Accordingly, the 

EPA is finding that this provision is 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Minnesota SIP that the 

EPA received and considered during the 

development of this rulemaking. 

5. Ohio 

As described in section IX.F.5 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision in the Ohio SIP that allows for 

discretionary exemptions during 

periods of scheduled maintenance (Ohio 

Admin. Code 3745–15–06(A)(3)). The 

Petitioner also objected to two source 

category-specific and pollutant-specific 

provisions that provide for discretionary 

exemptions during malfunctions (Ohio 

Admin. Code 3745–17–07(A)(3)(c) and 

Ohio Admin. Code 3745–17– 

07(B)(11)(f)). The Petitioner also 

objected to a source category-specific 

provision in the Ohio SIP that allows for 

an automatic exemption from applicable 

emission limitations and requirements 

during periods of startup, shutdown, 

malfunction, or regularly scheduled 

maintenance activities (Ohio Admin. 

Code 3745–14–11(D)). Finally, the 

Petitioner objected to five provisions 

that contain exemptions for Hospital/

Medical/Infectious Waste Incinerator 

(HMIWI) sources during startup, 

shutdown, and malfunction—Ohio 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33967 

396 In a final action published March 4, 2015 (80 

FR 11573), the EPA approved revisions of the 

Arkansas SIP pertaining to the regulation and 

permitting of PM2.5. Among the approved revisions 

was a change to Reg. 19.602, to capitalize the letter 

‘‘C’’ in that regulation’s title, ‘‘Emergency 

Conditions’’). To the extent the EPA’s recent action 

affected Reg. 19.602, that action was only a 

ministerial matter and should not be construed as 

reapproval of the provision on its merits. That 

action does not affect the basis on which the EPA 

proposed to find Reg. 19.602 substantially 

inadequate in the February 2013 proposal. 

Admin. Code 3745–75–02(E), Ohio 

Admin. Code 3745–75–02(J), Ohio 

Admin. Code 3745–75–03(I), Ohio 

Admin. Code 3745–75–04(K) and Ohio 

Admin. Code 3745–75–04(L). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Ohio Admin. Code 3745–15– 

06(A)(3), Ohio Admin. Code 3745–17– 

07(A)(3)(c), Ohio Admin. Code 3745– 

17–07(B)(11)(f) and Ohio Admin. Code 

3745–14–11(D). Also for reasons 

explained fully in the February 2013 

proposal, the EPA proposed to deny the 

Petition with respect to Ohio Admin. 

Code 3745–75–02(E), Ohio Admin. Code 

3745–75–02(J), Ohio Admin. Code 

3745–75–03(I), Ohio Admin. Code 

3745–75–04(K) and Ohio Admin. Code 

3745–75–04(L), on the basis that they 

are not part of the Ohio SIP and thus 

cannot represent a substantial 

inadequacy in the SIP. In addition, for 

reasons explained fully in the February 

2013 proposal, the EPA proposed to find 

that another provision, Ohio Admin. 

Code 3745–15–06(C), is substantially 

inadequate to meet CAA requirements 

and proposed to issue a SIP call with 

respect to this provision, even though 

the Petitioner did not request that the 

EPA evaluate this provision. As 

explained in the February 2013 

proposal, the EPA determined that Ohio 

Admin. Code 3745–15–06(C) was the 

regulatory mechanism in the SIP by 

which exemptions are granted in the 

two provisions to which the Petitioner 

did object. 

Consequently, the EPA proposed to 

find that the provisions in Ohio Admin. 

Code 3745–15–06(A)(3), Ohio Admin. 

Code 3745–17–07(A)(3)(c), Ohio Admin. 

Code 3745–17–07(B)(11)(f), Ohio 

Admin. Code 3745–14–11(D) and Ohio 

Admin. Code 3745–15–06(C) are 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to these 

provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

Ohio Admin. Code 3745–15–06(A)(3), 

Ohio Admin. Code 3745–17–07(A)(3)(c), 

Ohio Admin. Code 3745–17– 

07(B)(11)(f), Ohio Admin. Code 3745– 

14–11(D) and Ohio Admin. Code 3745– 

15–06(C) are substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

these provisions. Also in this final 

action, the EPA is denying the Petition 

with respect to Ohio Admin. Code 

3745–75–02(E), Ohio Admin. Code 

3745–75–02(J), Ohio Admin. Code 

3745–75–03(I), Ohio Admin. Code 

3745–75–04(K) and Ohio Admin. Code 

3745–75–04(L). This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Ohio SIP that the EPA 

received and considered during the 

development of this rulemaking. 

G. Affected States in EPA Region VI 

1. Arkansas 

As described in section IX.G.1 of the 

February 2013 proposal, the Petitioner 

objected to two provisions in the 

Arkansas SIP. First, the Petitioner 

objected to a provision that provides an 

automatic exemption for excess 

emissions of VOC for sources located in 

Pulaski County that occur due to 

malfunctions (Reg. 19.1004(H)). Second, 

the Petitioner objected to a separate 

provision that provides a ‘‘complete 

affirmative defense’’ for excess 

emissions that occur during emergency 

conditions (Reg. 19.602). The Petitioner 

argued that this provision, which the 

state may have modeled after the EPA’s 

title V regulations, is impermissible 

because its application is not clearly 

limited to operating permits. 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to Reg. 

19.1004(H) and Reg. 19.602. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

the affirmative defense provision in Reg. 

19.602, but it proposed to revise the 

basis for the finding of substantial 

inadequacy and the SIP call for this 

provision. 

Consequently, the EPA proposed to 

find that Reg. 19.1004(H) and Reg. 

19.602 396 are substantially inadequate 

to meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

Reg. 19.1004(H) and Reg. 19.602. 

Accordingly, the EPA is finding that 

these provisions are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. This 

action is fully consistent with what the 

EPA proposed in February 2013 as 

revised in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Arkansas SIP that the 

EPA received and considered during the 

development of this rulemaking. 

2. Louisiana 

As described in section IX.G.2 of the 

February 2013 proposal, the Petitioner 

objected to several provisions in the 

Louisiana SIP that allow for automatic 

and discretionary exemptions from SIP 

emission limitations during various 

situations, including startup, shutdown, 

maintenance and malfunctions. First, 

the Petitioner objected to provisions that 

provide automatic exemptions for 

excess emissions of VOC from 

wastewater tanks (LAC 

33:III.2153(B)(1)(i)) and excess 

emissions of NOX from certain sources 

within the Baton Rouge Nonattainment 

Area (LAC 33:III.2201(C)(8)). The LAC 

33:III.2153(B)(1)(i) provides that control 

devices ‘‘shall not be required’’ to meet 

emission limitations ‘‘during periods of 

malfunction and maintenance on the 

devices for periods not to exceed 336 

hours per year.’’ Similarly, LAC 

33:III.2201(C)(8) provides that certain 

sources ‘‘are exempted’’ from emission 

limitations ‘‘during start-up and 

shutdown . . . or during a 

malfunction.’’ Second, the Petitioner 

objected to provisions that provide 

discretionary exemptions to various 

emission limitations. Three of these 

provisions provide discretionary 

exemptions from otherwise applicable 

SO2 and visible emission limitations in 

the Louisiana SIP for excess emissions 

that occur during certain startup and 

shutdown events (LAC 33:III.1107, LAC 

33:III.1507(A)(1) and LAC 

33:III.1507(B)(1)), while the other two 

provide such exemptions for excess 

emissions from nitric acid plants during 

startups and ‘‘upsets’’ (LAC 

33:III.2307(C)(1)(a) and LAC 

33:III.2307(C)(2)(a)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to LAC 33:III.2153(B)(1)(i) and 

LAC 33:III.2201(C)(8) on the basis that 

these provisions allow for automatic 

exemptions for excess emissions from 

otherwise applicable SIP emission 

limitations. Also for reasons explained 

fully in the February 2013 proposal, the 

EPA proposed to grant the Petition with 

respect to LAC 33:III.1107(A), LAC 

33:III.1507(A)(1), LAC 33:III.1507(B)(1), 

LAC 33:III.2307(C)(1)(a) and LAC 

33:III.2307(C)(2)(a) on the basis that 

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these provisions allow impermissible 

discretionary exemptions. 

Consequently, the EPA proposed to 

find that LAC 33:III.2153(B)(1)(i), LAC 

33:III.2201(C)(8), LAC 33:III.1107(A), 

LAC 33:III.1507(A)(1), LAC 

33:III.1507(B)(1), LAC 

33:III.2307(C)(1)(a) and LAC 

33:III.2307(C)(2)(a) are substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

LAC 33:III.2153(B)(1)(i), LAC 

33:III.2201(C)(8), LAC 33:III.1107(A), 

LAC 33:III.1507(A)(1), LAC 

33:III.1507(B)(1), LAC 

33:III.2307(C)(1)(a) and LAC 

33:III.2307(C)(2)(a). Accordingly, the 

EPA is finding that these provisions are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Louisiana SIP that the 

EPA received and considered during the 

development of this rulemaking. 

3. New Mexico 

As described in section IX.G.3 of the 

February 2013 proposal, the Petitioner 

objected to three provisions in the New 

Mexico SIP that provide affirmative 

defenses for excess emissions that occur 

during malfunctions (20.2.7.111 

NMAC), during startup and shutdown 

(20.2.7.112 NMAC) and during 

emergencies (20.2.7.113 NMAC). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to 20.2.7.111 NMAC, 20.2.7.112 

NMAC and 20.2.7.113 NMAC. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

the affirmative defense provisions in 

20.2.7.111 NMAC, 20.2.7.112 NMAC 

and 20.2.7.113 NMAC, but it proposed 

to revise the basis for the finding of 

substantial inadequacy and the SIP call 

for these provisions. 

Consequently, the EPA proposed to 

find that the provisions in 20.2.7.111 

NMAC, 20.2.7.112 NMAC and 

20.2.7.113 NMAC are substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

20.2.7.111 NMAC, 20.2.7.112 NMAC 

and 20.2.7.113 NMAC. Accordingly, the 

EPA is finding that these provisions are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the New 

Mexico SIP that the EPA received and 

considered during the development of 

this rulemaking. 

4. New Mexico: Albuquerque-Bernalillo 

County 

The Petitioner did not identify any 

provisions in the SIP for the state of 

New Mexico that specifically apply in 

the Albuquerque-Bernalillo County area, 

which is why this area was not 

explicitly addressed in the February 

2013 proposal. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified 

three affirmative defense provisions in 

the SIP for the state of New Mexico that 

apply in the Albuquerque-Bernalillo 

County area, and the EPA proposed to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

these provisions. These provisions 

provide affirmative defenses available to 

sources for excess emissions that occur 

during malfunctions (20.11.49.16.A 

NMAC), during startup and shutdown 

(20.11.49.16.B NMAC) and during 

emergencies (20.11.49.16.C NMAC). 

In this final action, the EPA is finding 

that the provisions in 20.11.49.16.A 

NMAC, 20.11.49.16.B NMAC and 

20.11.49.16.C NMAC are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. The 

EPA notes that removal of 20.11.49.16.A 

NMAC, 20.11.49.16.B NMAC and 

20.11.49.16.C NMAC from the SIP will 

render 20.11.49.16.D NMAC, 

20.11.49.16.E, 20.11.49.15.B (15) 

(concerning reporting by a source of 

intent to assert an affirmative defense 

for a violation), a portion of 20.11.49.6 

NMAC (concerning the objective of 

establishing affirmative defense 

provisions) and 20.11.49.18 NMAC 

(concerning actions where a 

determination has been made under 

20.11.49.16.E NMAC) superfluous and 

no longer operative, and the EPA thus 

recommends that these provisions be 

removed as well. This action is fully 

consistent with what the EPA proposed 

in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the New Mexico SIP that the 

EPA received and considered during the 

development of this rulemaking. 

5. Oklahoma 

As described in section IX.G.4 of the 

February 2013 proposal, the Petitioner 

objected to two provisions in the 

Oklahoma SIP that together allow for 

discretionary exemptions from emission 

limitations during startup, shutdown, 

maintenance and malfunctions (OAC 

252:100–9–3(a) and OAC 252:100–9– 

3(b)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to OAC 252:100–9–3(a) and 

OAC 252:100–9–3(b). 

Consequently, the EPA proposed to 

find that OAC 252:100–9–3(a) and OAC 

252:100–9–3(b) are substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

OAC 252:100–9–3(a) and OAC 252:100– 

9–3(b). Accordingly, the EPA is finding 

that these provisions are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. This 

action is fully consistent with what the 

EPA proposed in February 2013. Please 

refer to the Response to Comment 

document available in the docket for 

this rulemaking concerning any 

comments specific to the Oklahoma SIP 

that the EPA received and considered 

during the development of this 

rulemaking. 

6. Texas 

The Petitioner did not identify in the 

June 2011 petition any provisions in the 

SIP for the state of Texas, which is why 

this state was not explicitly addressed 

in the February 2013 proposal. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified 

four affirmative defense provisions in 

the SIP for the state of Texas, and the 

EPA proposed to make a finding of 

substantial inadequacy and to issue a 

SIP call for these provisions. These 

provisions provide affirmative defenses 

available to sources for excess emissions 

that occur during upsets (30 TAC 

101.222(b)), unplanned events (30 TAC 

101.222(c)), upsets with respect to 

opacity limits (30 TAC 101.222(d)) and 

unplanned events with respect to 

opacity limits (30 TAC 101.222(e)). 

In this final action, the EPA is finding 

that the provisions in 30 TAC 

101.222(b), 30 TAC 101.222(c), 30 TAC 

101.222(d) and 30 TAC 101.222(e) are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

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issuing a SIP call with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Texas SIP that the EPA 

received and considered during the 

development of this rulemaking. 

H. Affected States in EPA Region VII 

1. Iowa 

As described in section IX.H.1 of the 

February 2013 proposal, the Petitioner 

objected to a specific provision in the 

Iowa SIP that allows for automatic 

exemptions from otherwise applicable 

SIP emission limitations during periods 

of startup, shutdown or cleaning of 

control equipment (Iowa Admin. Code r. 

567–24.1(1)). Also, the Petitioner 

objected to a provision that empowers 

the state to exercise enforcement 

discretion for violations of the otherwise 

applicable SIP emission limitations 

during malfunction periods (Iowa 

Admin. Code r. 567–24.1(4)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Iowa Admin. Code r. 567– 

24.1(1) on the basis that this provision 

allows for exemptions from the 

otherwise applicable SIP emission 

limitations. Also for reasons explained 

fully in the February 2013 proposal, the 

EPA proposed to deny the Petition with 

respect to Iowa Admin. Code r. 567– 

24.1(4) on the basis that the provision is 

on its face clearly applicable only to 

Iowa state enforcement personnel and 

that the provision thus could not 

reasonably be read by a court to 

foreclose enforcement by the EPA or 

through a citizen suit where Iowa state 

personnel elect to exercise enforcement 

discretion. 

Consequently, the EPA proposed to 

find that Iowa Admin. Code r. 567– 

24.1(1) is substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 

Iowa Admin. Code r. 567–24.1(1). 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. Also in this final action, 

the EPA is denying the Petition with 

respect to Iowa Admin. Code r. 567– 

24.1(4). This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Iowa SIP that the EPA 

received and considered during the 

development of this rulemaking. 

2. Kansas 

As described in section IX.H.2 of the 

February 2013 proposal, the Petitioner 

objected to three provisions in the 

Kansas SIP that allow for exemptions for 

excess emissions during malfunctions 

and necessary repairs (K.A.R. § 28–19– 

11(A)), scheduled maintenance (K.A.R. 

§ 28–19–11(B)), and certain routine 

modes of operation (K.A.R. § 28–19– 

11(C)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to K.A.R. § 28–19–11(A), K.A.R. 

§ 28–19–11(B) and K.A.R. § 28–19– 

11(C). 

Consequently, the EPA proposed to 

find that K.A.R. § 28–19–11(A), K.A.R. 

§ 28–19–11(B) and K.A.R. § 28–19–11(C) 

are substantially inadequate to meet 

CAA requirements and thus proposed to 

issue a SIP call with respect to these 

provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

K.A.R. § 28–19–11(A), K.A.R. § 28–19– 

11(B) and K.A.R. § 28–19–11(C). 

Accordingly, the EPA is finding that 

these provisions are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. This 

action is fully consistent with what the 

EPA proposed in February 2013. Please 

refer to the Response to Comment 

document available in the docket for 

this rulemaking concerning any 

comments specific to the Kansas SIP 

that the EPA received and considered 

during the development of this 

rulemaking. 

3. Missouri 

As described in section IX.H.3 of the 

February 2013 proposal, the Petitioner 

objected to two provisions in the 

Missouri SIP that could be interpreted 

to provide discretionary exemptions. 

The first provides exemptions for visible 

emissions exceeding otherwise 

applicable SIP opacity limitations (Mo. 

Code Regs. Ann. tit 10, § 10– 

6.220(3)(C)). The second provides 

authorization to state personnel to 

decide whether excess emissions 

‘‘warrant enforcement action’’ where a 

source submits information to the state 

showing that such emissions were ‘‘the 

consequence of a malfunction, start-up 

or shutdown.’’ (Mo. Code Regs. Ann. tit 

10, § 10–6.050(3)(C)). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Mo. Code Regs. Ann. tit 10, 

§ 10–6.220(3)(C) on the basis that this 

provision could be read to allow for 

exemptions from the otherwise 

applicable SIP emission limitations 

through a state official’s unilateral 

exercise of discretionary authority that 

is insufficiently bounded and includes 

no additional public process at the state 

or federal level. Also for reasons 

explained fully in the February 2013 

proposal, the EPA proposed to deny the 

Petition with respect to Mo. Code Regs. 

Ann. tit 10, § 10–6.050(3)(C) on the basis 

that the provision is on its face clearly 

applicable only to Missouri state 

enforcement personnel and that the 

provision thus could not reasonably be 

read by a court to foreclose enforcement 

by the EPA or through a citizen suit 

where Missouri state personnel elect to 

exercise enforcement discretion. 

Consequently, the EPA proposed to 

find that the provision in Mo. Code 

Regs. Ann. tit 10, § 10–6.220(3)(C) is 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to Mo. 

Code Regs. Ann. tit 10, § 10–6.220(3)(C). 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. Also in this final action, 

the EPA is denying the Petition with 

respect to Mo. Code Regs. Ann. tit 10, 

§ 10–6.050(3)(C). This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Missouri SIP that the EPA 

received and considered during the 

development of this rulemaking. 

4. Nebraska 

As described in section IX.H.4 of the 

February 2013 proposal, the Petitioner 

objected to two provisions in the 

Nebraska SIP. First, the Petitioner 

objected to a generally applicable 

provision that provides authorization to 

state personnel to decide whether 

excess emissions ‘‘warrant enforcement 

action’’ where a source submits 

information to the state showing that 

such emissions were ‘‘the result of a 

malfunction, start-up or shutdown’’ 

(Neb. Admin. Code Title 129 § 11– 

35.001). Second, the Petitioner objected 

to a specific provision in Nebraska state 

law that contains exemptions for excess 

emissions at hospital/medical/infectious 

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waste incinerators (HMIWI) during SSM 

(Neb. Admin. Code Title 129 § 18– 

004.02). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to deny the Petition with 

respect to Neb. Admin. Code Title 129 

§ 11–35.001. Also for reasons explained 

fully in the February 2013 proposal, the 

EPA proposed to deny the Petition with 

respect to Neb. Admin. Code Title 129 

§ 18–004.02 on the basis that this 

regulation is not part of the Nebraska 

SIP and thus cannot represent an 

inadequacy in the SIP. 

In this final action, the EPA is 

denying the Petition with respect to 

Neb. Admin. Code Title 129, Chapter 

35, Section 001 (correction to citation, 

as per comment received from Nebraska 

DEQ, from earlier identification as Neb. 

Admin. Code Title 129 § 11–35.001) and 

Neb. Admin. Code Title 129 § 18– 

004.02. 

This action is fully consistent with 

what the EPA proposed in February 

2013. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any other comments specific to the 

Nebraska SIP that the EPA received and 

considered during the development of 

this rulemaking. 

5. Nebraska: Lincoln-Lancaster 

As described in section IX.H.5 of the 

February 2013 proposal, the Petitioner 

objected to a generally applicable 

provision in the Lincoln-Lancaster 

County Air Pollution Control Program 

(Art. 2 § 35), which governs the LincolnLancaster County Air Pollution Control 

District of Nebraska, that is parallel ‘‘in 

all aspects pertinent to this analysis’’ to 

Neb. Admin. Code Title 129 § 11– 

35.001. (Note that as per comment 

subsequently received from Nebraska 

DEQ, the correct citation is Neb. Admin. 

Code Title 129, Chapter 35, Section 

001.) 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to deny the Petition with 

respect to Art. 2 § 35, on the basis that 

this provision is on its face clearly 

applicable only to Lincoln-Lancaster 

County enforcement personnel and that 

the provision thus could not reasonably 

be read by a court to foreclose 

enforcement by the EPA or through a 

citizen suit where personnel from 

Lincoln-Lancaster County elect not to 

bring an enforcement action. 

In this final action, the EPA is 

denying the Petition with respect to Art. 

2 § 35. This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any other 

comments specific to the Nebraska SIP 

that the EPA received and considered 

during the development of this 

rulemaking. 

I. Affected States in EPA Region VIII 

1. Colorado 

As described in section IX.I.1 of the 

February 2013 proposal, the Petitioner 

objected to two affirmative defense 

provisions in the Colorado SIP that 

provide for affirmative defenses to 

qualifying sources during malfunctions 

(5 Colo. Code Regs § 1001–2(II.E)) and 

during periods of startup and shutdown 

(5 Colo. Code Regs § 1001–2(II.J)). 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to 5 Colo. 

Code Regs § 1001–2(II.J). Also for 

reasons explained in the February 2013 

proposal, the EPA proposed to deny the 

Petition with respect to 5 Colo. Code 

Regs § 1001–2(II.E) on the basis that it 

included an affirmative defense 

applicable to malfunction events that 

was consistent with the requirements of 

the CAA as interpreted by the EPA in 

the 1999 SSM Guidance. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

the affirmative defense provision in 5 

Colo. Code Regs § 1001–2(II.J) 

applicable to startup and shutdown, but 

it proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. Also for 

reasons explained in the SNPR, the EPA 

reversed its prior proposed denial of the 

Petition with respect to the affirmative 

defense provision 5 Colo. Code Regs 

§ 1001–2(II.E) applicable to 

malfunctions. 

Consequently, the EPA proposed to 

find that the provisions in 5 Colo. Code 

Regs § 1001–2(II.J) and 5 Colo. Code 

Regs § 1001–2(II.E) are substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 5 

Colo. Code Regs § 1001–2(II.J) and 5 

Colo. Code Regs § 1001–2(II.E). 

Accordingly, the EPA is finding that the 

provisions in 5 Colo. Code Regs § 1001– 

2(II.J) and 5 Colo. Code Regs § 1001– 

2(II.E) are substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call to Colorado to 

correct its SIP with respect to these 

provisions. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the Colorado 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

2. Montana 

As described in section IX.I.2 of the 

February 2013 proposal, the Petitioner 

objected to an exemption from 

otherwise applicable emission 

limitations for aluminum plants during 

startup and shutdown (Montana Admin. 

R 17.8.334). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to ARM 17.8.334. 

Consequently, the EPA proposed to 

find that ARM 17.8.334 is substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 

ARM 17.8.334. Accordingly, the EPA is 

finding that ARM 17.8.334 is 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in 

February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Montana SIP that the EPA 

received and considered during the 

development of this rulemaking. 

3. North Dakota 

As described in section IX.I.3 of the 

February 2013 proposal, the Petitioner 

objected to two provisions in the North 

Dakota SIP that create exemptions from 

otherwise applicable emission 

limitations. The first provision creates 

exemptions from a number of crossreferenced opacity limits ‘‘where the 

limits specified in this article cannot be 

met because of operations and processes 

such as, but not limited to, oil field 

service and drilling operations, but only 

so long as it is not technically feasible 

to meet said specifications’’ (N.D. 

Admin. Code § 33–15–03–04(4)). The 

second provision creates an implicit 

exemption for ‘‘temporary operational 

breakdowns or cleaning of air pollution 

equipment’’ if the source meets certain 

conditions (N.D. Admin. Code § 33–15– 

05–01(2)(a)(1)). 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

grant the Petition with respect to N.D. 

Admin. Code 33–15–03–04.4 (cited in 

the Petition as N.D. Admin. Code § 33– 

15–03–04(4)) and also with respect to a 

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397See ‘‘Approval and Promulgation of 

Implementation Plans; North Dakota; Revisions to 

the Air Pollution Control Rules,’’ 79 FR 63045 

(October 22, 2014). 

398See ‘‘Approval and Promulgation of 

Implementation Plans; Wyoming; Revisions to the 

Air Quality Standards and Regulations,’’ 79 FR 

62859 (October 21, 2014). 

provision to which the Petitioner cited 

but did not explicitly object, N.D. 

Admin. Code 33–15–03–04.3 (cited in 

the Petition as N.D. Admin. Code § 33– 

15–03–04(3)). Also for reasons 

explained in the February 2013 

proposal, the EPA proposed to grant the 

Petition with respect to N.D. Admin. 

Code 33–15–05–01.2a(1) (cited in the 

Petition as N.D. Admin. Code § 33–15– 

05–01(2)(a)(1)). 

Subsequently, the state of North 

Dakota removed N.D. Admin. Code 33– 

15–03–04.4 and N.D. Admin. Code 33– 

15–05–01.2.a(1) and eliminated the SIP 

inadequacies with respect to those two 

of the three provisions identified in the 

February 2013 proposal notice. The EPA 

has already approved the necessary SIP 

revisions for those two provisions.397

Thus, the EPA’s final action on the 

Petition does not need to include a 

finding of substantial inadequacy and 

SIP call for those two provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

N.D. Admin. Code 33–15–03–04.3 and 

denying the Petition with respect to 

N.D. Admin. Code 33–15–03–04.4 and 

N.D. Admin. Code 33–15–05–01.2.a(1). 

Accordingly, the EPA is finding that the 

provision in N.D. Admin. Code 33–15– 

03–04.3 is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call to North Dakota 

to correct its SIP with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in 

February 2013 with respect to this 

provision. Please refer to the Response 

to Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the North 

Dakota SIP that the EPA received and 

considered during the development of 

this rulemaking. 

4. South Dakota 

As described in section IX.I.4 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the South 

Dakota SIP that creates exemptions from 

otherwise applicable SIP emission 

limitations (S.D. Admin, R. 

74:36:12:02(3)). The Petitioner asserted 

that the provision imposes visible 

emission limitations on sources but 

explicitly excludes emissions that occur 

‘‘for brief periods during such 

operations as soot blowing, start-up, 

shut-down, and malfunctions.’’ 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to S.D. Admin, R. 74:36:12:02(3). 

Consequently, the EPA proposed to 

find that S.D. Admin, R. 74:36:12:02(3) 

is substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to this provision. 

In this final action, the EPA is 

granting the Petition with respect to S.D. 

Admin, R. 74:36:12:02(3). Accordingly, 

the EPA is finding that S.D. Admin, R. 

74:36:12:02(3) is substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to this provision. This 

action is fully consistent with what the 

EPA proposed in February 2013. Please 

refer to the Response to Comment 

document available in the docket for 

this rulemaking concerning any 

comments specific to the South Dakota 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

5. Wyoming 

As described in section IX.I.5 of the 

February 2013 proposal, the Petitioner 

objected to a specific provision in the 

Wyoming SIP that provides an 

exemption for excess PM emissions 

from diesel engines during startup, 

malfunction and maintenance (WAQSR 

Chapter 3, section 2(d), cited as ENV– 

AQ–1 Wyo. Code R. § 2(d) in the 

Petition). The provision exempts 

emission of visible air pollutants from 

diesel engines from applicable SIP 

limitations ‘‘during a reasonable period 

of warmup following a cold start or 

where undergoing repairs and 

adjustment following malfunction.’’ 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to WAQSR Chapter 3, section 

2(d) (cited as ENV–AQ–1 Wyo. Code R. 

§ 2(d) in the Petition). 

Subsequently, the state of Wyoming 

revised WAQSR Chapter 3, section 2(d) 

and eliminated the SIP inadequacies 

identified in the February 2013 proposal 

document with respect to this provision. 

The EPA has already approved the 

necessary SIP revision for this 

provision.398 Thus, the EPA’s final 

action on the Petition does not need to 

include a finding of substantial 

inadequacy and SIP call for this 

provision. 

In this final action, the EPA is 

denying the Petition with respect to 

WAQSR Chapter 3, section 2(d). Please 

refer to the Response to Comment 

document available in the docket for 

this rulemaking concerning any 

comments specific to the Wyoming SIP 

that the EPA received and considered 

during the development of this 

rulemaking. 

J. Affected States and Local Jurisdictions 

in EPA Region IX 

1. Arizona 

As described in section IX.J.1 of the 

February 2013 proposal, the Petitioner 

objected to two provisions in the 

Arizona Department of Air Quality’s 

(ADEQ) Rule R18–2–310, which provide 

affirmative defenses for excess 

emissions during malfunctions (AAC 

Section R18–2–310(B)) and for excess 

emissions during startup or shutdown 

(AAC Section R18–2–310(C)). 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

deny the Petition with respect to AAC 

Section R18–2–310(B) on the basis that 

it included an affirmative defense 

applicable to malfunction events that 

was consistent with the CAA as 

interpreted by the EPA in the 1999 SSM 

Guidance. 

Also for reasons explained in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to AAC Section R18–2–310(C). 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reversed its 

prior proposed denial of the Petition 

with respect to the affirmative defense 

provision AAC Section R18–2–310(B) 

applicable to malfunctions. Also for 

reasons explained in the SNPR, the EPA 

reproposed granting of the Petition with 

respect to the affirmative defense 

provision in AAC Section R18–2–310(C) 

applicable to startup and shutdown, but 

it proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. 

Consequently, the EPA proposed to 

find that the provisions in AAC Section 

R18–2–310(B) and AAC Section R18–2– 

310(C) are substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

AAC Section R18–2–310(B) and AAC 

Section R18–2–310(C). Accordingly, the 

EPA is finding that the provisions in 

AAC Section R18–2–310(B) and AAC 

Section R18–2–310(C) are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. This 

action is fully consistent with what the 

EPA proposed in February 2013 as 

revised in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

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33972 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

399The EPA is in this final action making a 

finding of substantial inadequacy and issuing a SIP 

call for Kern County Rule 111 Equipment 

Breakdown in the California SIP as it applies in 

each the Eastern Kern APCD and the San Joaquin 

Valley Unified APCD. 

specific to the Arizona SIP that the EPA 

received and considered during the 

development of this rulemaking. 

2. Arizona: Maricopa County 

As described in section IX.J.2 of the 

February 2013 proposal, the Petitioner 

objected to two provisions in the 

Maricopa County Air Pollution Control 

Regulations that provide affirmative 

defenses for excess emissions during 

malfunctions (Maricopa County Air 

Pollution Control Regulation 3, Rule 

140, § 401) and for excess emissions 

during startup or shutdown (Maricopa 

County Air Pollution Control Regulation 

3, Rule 140, § 402). These provisions in 

Maricopa County Air Quality 

Department (MCAQD) Rule 140 are 

similar to the affirmative defense 

provisions in ADEQ R18–2–310. 

For reasons explained in the February 

2013 proposal, the EPA proposed to 

deny the Petition with respect to 

Maricopa County Air Pollution Control 

Regulation 3, Rule 140, § 401 on the 

basis that it included an affirmative 

defense applicable to malfunction 

events that was consistent with the CAA 

as interpreted by the EPA in the 1999 

SSM Guidance. Also for reasons 

explained in the February 2013 

proposal, the EPA proposed to grant the 

Petition with respect to Maricopa 

County Air Pollution Control Regulation 

3, Rule 140, § 402. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA reversed its 

prior proposed denial of the Petition 

with respect to the affirmative defense 

provision Maricopa County Air 

Pollution Control Regulation 3, Rule 

140, § 401 applicable to malfunctions. 

Also for reasons explained in the SNPR, 

the EPA reproposed granting of the 

Petition with respect to the affirmative 

defense provision in Maricopa County 

Air Pollution Control Regulation 3, Rule 

140, § 402 applicable to startup and 

shutdown, but it proposed to revise the 

basis for the finding of substantial 

inadequacy and the SIP call for this 

provision. 

Consequently, the EPA proposed to 

find that the provisions in Maricopa 

County Air Pollution Control Regulation 

3, Rule 140, § 401 and Maricopa County 

Air Pollution Control Regulation 3, Rule 

140, § 402 are substantially inadequate 

to meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to these provisions. 

In this final action, the EPA is 

granting the Petition with respect to 

Maricopa County Air Pollution Control 

Regulation 3, Rule 140, § 401 and 

Maricopa County Air Pollution Control 

Regulation 3, Rule 140, § 402. 

Accordingly, the EPA is finding that 

these provisions are substantially 

inadequate to meet CAA requirements 

and the EPA is thus issuing a SIP call 

with respect to these provisions. This 

action is fully consistent with what the 

EPA proposed in February 2013 as 

revised in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Arizona SIP that the EPA 

received and considered during the 

development of this rulemaking. 

3. Arizona: Pima County 

As described in section IX.J.3 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Pima 

County Department of Environmental 

Quality’s (PCDEQ) Rule 706 that 

pertains to enforcement discretion. 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to deny the Petition with 

respect to PCDEQ Rule 706. 

In this final action, the EPA is 

denying the Petition with respect to 

PCDEQ Rule 706. This action is fully 

consistent with what the EPA proposed 

in February 2013. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Arizona SIP that the EPA 

received and considered during the 

development of this rulemaking. 

4. California: Eastern Kern Air Pollution 

Control District 

The Petitioner did not identify any 

provisions in the SIP for the state of 

California, which is why this state was 

not explicitly addressed in the February 

2013 proposal. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified an 

affirmative defense provision in the SIP 

for the state of California applicable in 

the Eastern Kern Air Pollution Control 

District (APCD), and the EPA proposed 

to make a finding of substantial 

inadequacy and to issue a SIP call for 

this provision. The affirmative defense 

is included in Kern County ‘‘Rule 111 

Equipment Breakdown.’’ This SIP 

provision provides an affirmative 

defense available to sources for excess 

emissions that occur during a 

breakdown condition (i.e., malfunction). 

In this final action, the EPA is finding 

that Kern County Rule 111 Equipment 

Breakdown in the California SIP 

applicable in the Eastern Kern APCD 399

is substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the California 

SIP that the EPA received and 

considered during the development of 

this rulemaking. 

5. California: Imperial County Air 

Pollution Control District 

The Petitioner did not identify any 

provisions in the SIP for the state of 

California, which is why this state was 

not explicitly addressed in the February 

2013 proposal. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified an 

affirmative defense provision in the SIP 

for the state of California applicable in 

the Imperial Valley APCD, and the EPA 

proposed to make a finding of 

substantial inadequacy and to issue a 

SIP call for this provision. The 

affirmative defense is included in 

Imperial County ‘‘Rule 111 Equipment 

Breakdown.’’ This SIP provision 

provides an affirmative defense 

available to sources for excess emissions 

that occur during a breakdown 

condition (i.e., malfunction). 

In this final action, the EPA is finding 

that Imperial County ‘‘Rule 111 

Equipment Breakdown’’ in the 

California SIP applicable in the Imperial 

Valley APCD is substantially inadequate 

to meet CAA requirements and the EPA 

is thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the California SIP that the 

EPA received and considered during the 

development of this rulemaking. 

6. California: San Joaquin Valley 

Unified Air Pollution Control District 

The Petitioner did not identify any 

provisions in the SIP for the state of 

California, which is why this state was 

not explicitly addressed in the February 

2013 proposal. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified 

affirmative defense provisions in the SIP 

for the state of California applicable in 

the San Joaquin Valley Unified APCD, 

and the EPA proposed to make a finding 

of substantial inadequacy and to issue a 

SIP call for these provisions. The 

affirmative defenses are included in: (i) 

Fresno County ‘‘Rule 110 Equipment 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33973 

400The EPA is in this final action making a 

finding of substantial inadequacy and issuing a SIP 

call for Kern County Rule 111 Equipment 

Breakdown in the California SIP as it applies in 

each the Eastern Kern APCD and the San Joaquin 

Valley Unified APCD. 

Breakdown’’; (ii) Kern County ‘‘Rule 111 

Equipment Breakdown’’; (iii) Kings 

County ‘‘Rule 111 Equipment 

Breakdown’’; (iv) Madera County ‘‘Rule 

113 Equipment Breakdown’’; (v) 

Stanislaus County ‘‘Rule 110 Equipment 

Breakdown’’; and (vi) Tulare County 

‘‘Rule 111 Equipment Breakdown.’’ 

Each of these SIP provisions provides an 

affirmative defense available to sources 

for excess emissions that occur during a 

breakdown condition (i.e., malfunction). 

In this final action, the EPA is finding 

that the following six provisions in the 

California SIP applicable in the San 

Joaquin Valley Unified APCD are 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to these 

provisions: (i) Fresno County ‘‘Rule 110 

Equipment Breakdown’’; (ii) Kern 

County ‘‘Rule 111 Equipment 

Breakdown’’; (iii) Kings County ‘‘Rule 

111 Equipment Breakdown’’; (iv) 

Madera County ‘‘Rule 113 Equipment 

Breakdown’’; (v) Stanislaus County 

‘‘Rule 110 Equipment Breakdown’’; and 

(vi) Tulare County ‘‘Rule 111 Equipment 

Breakdown.’’ 400 This action is fully 

consistent with what the EPA proposed 

in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the California SIP that the 

EPA received and considered during the 

development of this rulemaking. 

K. Affected States in EPA Region X 

1. Alaska 

As described in section IX.K.1 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Alaska SIP 

that provides an excuse for 

‘‘unavoidable’’ excess emissions that 

occur during SSM events, including 

startup, shutdown, scheduled 

maintenance and ‘‘upsets’’ (Alaska 

Admin. Code tit. 18 § 50.240). The 

provision provides: ‘‘Excess emissions 

determined to be unavoidable under 

this section will be excused and are not 

subject to penalty. This section does not 

limit the department’s power to enjoin 

the emission or require corrective 

action.’’ The Petitioner also stated that 

the provision is worded as if it were an 

affirmative defense but it uses criteria 

for enforcement discretion. 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Alaska Admin. Code tit. 18 

§ 50.240 on the basis that, to the extent 

the provision was intended to be an 

affirmative defense, it was not a 

permissible affirmative defense 

provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s 1999 SSM Guidance. 

Subsequently, for reasons explained 

in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

Alaska Admin. Code tit. 18 § 50.240, but 

it proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. 

Consequently, the EPA proposed to 

find that Alaska Admin. Code tit. 18 

§ 50.240 is substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to this provision. 

In this final action, the EPA is 

granting the Petition with respect to 

Alaska Admin. Code tit. 18 § 50.240. 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the Alaska SIP 

that the EPA received and considered 

during the development of this 

rulemaking. 

2. Idaho 

As described in section IX.K.2 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Idaho SIP 

that appears to grant enforcement 

discretion to the state as to whether to 

impose penalties for excess emissions 

during certain SSM events (Idaho 

Admin. Code r. 58.01.01.131). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to deny the Petition with 

respect to Idaho Admin. Code r. 

58.01.01.131. 

In this final action, the EPA is 

denying the Petition with respect to 

Idaho Admin. Code r. 58.01.01.131. This 

action is fully consistent with what the 

EPA proposed in February 2013. Please 

refer to the Response to Comment 

document available in the docket for 

this rulemaking concerning any 

comments specific to the Idaho SIP that 

the EPA received and considered during 

the development of this rulemaking. 

3. Oregon 

As described in section IX.K.3 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the Oregon 

SIP that grants enforcement discretion 

to the state to pursue violations for 

excess emissions during certain SSM 

events (Or. Admin. R. 340–028–1450). 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to deny the Petition with 

respect to Or. Admin. R. 340–028–1450. 

In this final action, the EPA is 

denying the Petition with respect to Or. 

Admin. R. 340–028–1450. This action is 

fully consistent with what the EPA 

proposed in February 2013. Please refer 

to the Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Oregon SIP that the EPA 

received and considered during the 

development of this rulemaking. 

4. Washington 

As described in section IX.K.4 of the 

February 2013 proposal, the Petitioner 

objected to a provision in the 

Washington SIP that provides an excuse 

for ‘‘unavoidable’’ excess emissions that 

occur during certain SSM events, 

including startup, shutdown, scheduled 

maintenance and ‘‘upsets’’ (Wash. 

Admin. Code § 173–400–107). The 

provision provides that ‘‘[e]xcess 

emissions determined to be unavoidable 

under the procedures and criteria under 

this section shall be excused and are not 

subject to penalty.’’ The Petitioner 

argued that this provision excuses 

excess emissions in violation of the 

CAA and the EPA’s SSM Policy, which 

require all such emissions to be treated 

as violations of the applicable SIP 

emission limitations. The Petitioner also 

stated that the provision is worded as if 

it were an affirmative defense but it uses 

criteria for enforcement discretion. 

For reasons explained fully in the 

February 2013 proposal, the EPA 

proposed to grant the Petition with 

respect to Wash. Admin. Code § 173– 

400–107 on the basis that, to the extent 

the provision was intended to be an 

affirmative defense, it was not a 

permissible affirmative defense 

provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s 1999 SSM Guidance. 

Subsequently, for reasons explained 

in the SNPR, the EPA reproposed 

granting of the Petition with respect to 

Wash. Admin. Code § 173–400–107, but 

it proposed to revise the basis for the 

finding of substantial inadequacy and 

the SIP call for this provision. 

Consequently, the EPA proposed to 

find that Wash. Admin. Code § 173– 

400–107 is substantially inadequate to 

meet CAA requirements and thus 

proposed to issue a SIP call with respect 

to this provision. 

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33974 Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 

401The EPA notes that the SWCAA was formerly 

named, and in some places in the SIP still appears, 

as the ‘‘Southwest Air Pollution Control Authority’’ 

or ‘‘SWAPCA.’’ The EPA anticipates that the name 

will be updated in the SIP in due course as the state 

revises the SIP. 

In this final action, the EPA is 

granting the Petition with respect to 

Wash. Admin. Code § 173–400–107. 

Accordingly, the EPA is finding that this 

provision is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in February 2013 as revised in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the 

Washington SIP that the EPA received 

and considered during the development 

of this rulemaking. 

5. Washington: Energy Facility Site 

Evaluation Council 

The Petitioner did not identify any 

provisions in the SIP for the state of 

Washington that specifically apply to 

the Energy Facility Site Evaluation 

Council (EFSEC) area, which is why this 

area was not explicitly addressed in the 

February 2013 proposal. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified 

affirmative defense provisions in the SIP 

for the state of Washington that relate to 

the EFSEC, and the EPA proposed to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

these provisions in Wash. Admin. Code 

§ 463–39–005. In the EFSEC portion of 

the SIP, Wash. Admin. Code § 463–39– 

005 adopts by reference Wash. Admin. 

Code § 173–400–107, thereby 

incorporating the affirmative defenses 

applicable to startup, shutdown, 

scheduled maintenance and ‘‘upsets’’ 

that the EPA is also finding 

substantially inadequate in Wash. 

Admin. Code § 173–400–107 (see 

section IX.K.4 of this document). 

In this final action, the EPA is finding 

that Wash. Admin. Code § 463–39–005 

is substantially inadequate to meet CAA 

requirements and the EPA is thus 

issuing a SIP call with respect to this 

provision. This action is fully consistent 

with what the EPA proposed in the 

SNPR. Please refer to the Response to 

Comment document available in the 

docket for this rulemaking concerning 

any comments specific to the 

Washington SIP that the EPA received 

and considered during the development 

of this rulemaking. 

6. Washington: Southwest Clean Air 

Agency 

The Petitioner did not identify any 

provisions in the SIP for the state of 

Washington that specifically apply in 

the portion of the state regulated by the 

Southwest Clean Air Agency 

(SWCAA),401 which is why this area 

was not explicitly addressed in the 

February 2013 proposal. 

Subsequently, for reasons explained 

fully in the SNPR, the EPA identified 

affirmative defense provisions in the SIP 

for the state of Washington that apply in 

the portion of the state regulated by 

SWCAA, and the EPA proposed to make 

a finding of substantial inadequacy and 

to issue a SIP call for these provisions. 

The affirmative defenses are included in 

the SIP in SWAPCA ‘‘400–107 Excess 

Emissions.’’ This SIP section provides 

an affirmative defense available to 

sources for excess emissions that occur 

during startup and shutdown, 

maintenance and ‘‘upsets’’ (i.e., 

malfunctions). It is identical to Wash. 

Admin. Code § 173–400–107 in all 

respects except that SWAPCA 400– 

107(3) contains a more stringent 

requirement for the reporting of excess 

emissions. 

In this final action, the EPA is finding 

that SWAPCA ‘‘400–107 Excess 

Emissions’’ in the Washington SIP 

applicable in the area regulated by 

SWCAA is substantially inadequate to 

meet CAA requirements and the EPA is 

thus issuing a SIP call with respect to 

this provision. This action is fully 

consistent with what the EPA proposed 

in the SNPR. Please refer to the 

Response to Comment document 

available in the docket for this 

rulemaking concerning any comments 

specific to the Washington SIP that the 

EPA received and considered during the 

development of this rulemaking. 

X. Implementation Aspects of EPA’s 

SSM SIP Policy 

A. Recommendations Concerning 

Alternative Emission Limitations for 

Startup and Shutdown 

In response to a SIP call concerning 

an existing automatic or discretionary 

exemption for excess emissions during 

SSM events, the EPA anticipates that a 

state may elect to create an alternative 

emission limitation that applies during 

startup and shutdown events (or during 

any other normal mode of operation 

during which the exemption may have 

applied) as a revised element or 

component of the existing emission 

limitation. The EPA emphasizes that 

states have discretion to revise the 

identified deficient provisions by any 

means they choose, so long as the 

revised provision is consistent with 

CAA requirements for SIP provisions. If 

a state elects to create an alternative 

emission limitation to replace an 

existing exemption, there are several 

issues that the state should consider. 

First, as explained in sections VII.B 

and XI of this document, the EPA has 

longstanding guidance that provides 

recommendations to states concerning 

the development of alternative emission 

limitations applicable during startup 

and shutdown to replace exemptions in 

existing SIP provisions. The EPA first 

provided this guidance in the 1999 SSM 

Guidance but has reiterated and 

clarified its guidance in this action. The 

EPA recommends that states consider 

the seven clarified criteria described in 

sections VII.B and XI of this document 

when developing new alternative 

emission limitations to replace 

automatic or discretionary exemptions, 

in order to assure that the revised 

provisions submitted to the EPA for 

approval meet basic CAA requirements 

for SIP emission limitations. 

Second, the EPA reiterates that SIP 

emission limitations that are expressed 

as numerical limitations do not 

necessarily have to require the same 

numerical level of emissions during all 

modes of normal source operation. 

Under appropriate circumstances 

consistent with the criteria that the EPA 

recommends for alternative emission 

limitations, it may be appropriate to 

have a numerical emission limitation 

that has a higher numerical level 

applicable during specific modes of 

source operation, such as during startup 

and shutdown. For example, if a ratebased NOX emission limitation in the 

SIP applies to a specific source category, 

then it may be appropriate for that 

emission limitation to have a higher 

numerical standard applicable during 

defined periods of startup or shutdown. 

Such an approach can be consistent 

with SIP requirements, so long as that 

higher numerical level for startup or 

shutdown is properly established and is 

legally and practically enforceable, and 

so long as other overarching CAA 

requirements are also met. However, 

alternative emission limitations 

applicable during startup and shutdown 

cannot be inappropriately high or an 

effectively unlimited or uncontrolled 

level of emissions, as those would 

constitute impermissible de facto 

exemptions for emissions during certain 

modes of operation. 

Third, the EPA reiterates that SIP 

emission limitations do not necessarily 

have to be expressed in terms of a 

numerical level of emissions. There are 

many sources for which a numerically 

expressed emission limitation will be 

the most appropriate and will result in 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33975 

402The EPA notes that in the CAA there is a 

presumption in favor of numerical emission 

limitations for purposes of section 112 and section 

169, but section 110(a) does not include such an 

explicit presumption. However, there may be 

sources for which a numerically expressed emission 

limitation is the one that is most legally and 

practically enforceable, even during startup and 

shutdown, and for which a numerically expressed 

emission limitation is thus most appropriate. 

403The EPA notes that the ‘‘general duty’’ 

imposed under CAA section 112(r) is a separate 

standard, in addition to the otherwise applicable 

emission limitations and is not in lieu of those 

requirements. 

404See ‘‘Approval and Promulgation of 

Implementation Plans; Kentucky; Approval of 

Revisions to the Jefferson County Portion of the 

Kentucky SIP; Emissions During Startups, 

Shutdowns, and Malfunctions,’’ proposed at 78 FR 

29683 (May 21, 2013), finalized at 79 FR 33101 

(June 10, 2014). 

the most legally and practically 

enforceable SIP requirements.402

However, the EPA recognizes that for 

some source categories, under some 

circumstances, it may be appropriate for 

the SIP emission limitation to include a 

specific technological control 

requirement or specific work practice 

requirement that applies during 

specified modes of source operation 

such as startup and shutdown. For 

example, if the otherwise applicable 

numerical SO2 emission limitation in 

the SIP is not achievable, and the 

otherwise required SO2 control measure 

is not effective during startup and 

shutdown and/or measurement of 

emissions during startup and shutdown 

is not reasonably feasible, then it may be 

appropriate for that emission limitation 

to impose a different control measure, 

such as use of low sulfur coal, 

applicable during defined periods of 

startup and shutdown in lieu of a 

numerically expressed emission 

limitation. Such an approach can be 

consistent with SIP requirements, so 

long as that alternative control measure 

applicable during startup and shutdown 

is properly established and is legally 

and practically enforceable as a 

component of the emission limitation, 

and so long as other overarching CAA 

requirements are also met. 

Fourth, the EPA notes that revisions 

to replace existing automatic or 

discretionary exemptions for SSM 

events with alternative emission 

limitations applicable during startup 

and shutdown also need to meet the 

applicable overarching CAA 

requirements with respect to the SIP 

emission limitation at issue. For 

example, if the emission limitation is in 

the SIP to meet the requirement that the 

source category be subject to RACT level 

controls for NOX for purposes of the 

ozone NAAQS, then the state should 

assure that the higher numerical level or 

other control measure that will apply to 

NOX emissions during startup and 

shutdown does constitute a RACT level 

of control for such sources for such 

pollutant during such modes of 

operation. 

Finally, the EPA notes that states 

should not replace automatic or 

discretionary exemptions for excess 

emissions during SSM events with 

alternative emission limitations that are 

a generic requirement such as a ‘‘general 

duty to minimize emissions’’ provision 

or an ‘‘exercise good engineering 

judgment’’ provision.403 While such 

provisions may serve an overarching 

purpose of encouraging sources to 

design, maintain and operate their 

sources correctly, such generic clauses 

are not a valid substitute for more 

specific emission limitations that apply 

during normal modes of operation such 

as startup and shutdown. 

B. Recommendations for Compliance 

With Section 110(l) and Section 193 for 

SIP Revisions 

In response to a SIP call for any type 

of deficient provision, the EPA 

anticipates that each state will 

determine the best way to revise its SIP 

provisions to bring them into 

compliance with CAA requirements. In 

this action the EPA is only identifying 

the provisions that need to be revised 

because they violate fundamental 

requirements of the CAA and providing 

guidance to states in the SSM Policy 

concerning the types of provisions that 

are and are not permissible with respect 

to the treatment of excess emissions 

during SSM events. The EPA recognizes 

that one important consideration for air 

agencies as they evaluate how best to 

revise their SIP provisions in response 

to this SIP call is the nature of the 

analysis that will be necessary for the 

resulting SIP revisions under section 

110(l) and section 193. The EPA is 

therefore providing in this document 

general guidance on this important issue 

in order to assist states with SIP 

revisions in response to the SIP call. 

Section 110(k)(3) directs the EPA to 

approve SIP submissions that comply 

with applicable CAA requirements and 

to disapprove those that do not. Under 

section 110(l), the EPA is prohibited 

from approving any SIP revision that 

would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

requirements of the CAA. To illustrate 

different ways in which section 110(l) 

and section 193 may apply in the 

evaluation of future SIP submissions in 

response to the SIP call, the EPA 

anticipates that there are several 

common scenarios that states may wish 

to consider when revising their SIPs: 

Example 1: A state elects to revise an 

existing SIP provision by removing an 

existing automatic exemption provision, 

director’s discretion provision, 

enforcement discretion provision or 

affirmative defense provision, without 

altering any other aspects of the SIP 

provision at issue (e.g., elects to retain 

the emission limitation for the source 

category but eliminate the exemption for 

emissions during SSM events). 

Although the EPA must review each SIP 

submission for compliance with section 

110(l) and section 193 on the facts and 

circumstances of the revision, the 

Agency believes in general that this type 

of SIP revision should not entail a 

complicated analysis to meet these 

statutory requirements. Presumably, 

removal of the impermissible 

components of preexisting SIP 

provisions would not constitute 

backsliding, would in fact strengthen 

the SIP and would be consistent with 

the overarching requirement that the SIP 

revision be consistent with the 

requirements of the CAA. Accordingly, 

the EPA believes that this type of SIP 

revision should not entail a complicated 

analysis for purposes of section 110(l). 

If the SIP revision is also governed by 

section 193, then elimination of the 

deficiency will likewise presumably 

result in equal or greater emission 

reductions and thus comply with 

section 193 without the need for a more 

complicated analysis. The EPA has 

recently evaluated a SIP revision to 

remove specific SSM deficiencies in this 

manner.404

Example 2: A state elects to revise its 

SIP provision by replacing an automatic 

exemption for excess emissions during 

startup and shutdown events with an 

appropriate alternative emission 

limitation (e.g., a different numerical 

limitation or different other control 

requirement) that is explicitly 

applicable during startup and shutdown 

as a component of the revised emission 

limitation. Although the EPA must 

review each SIP revision for compliance 

with section 110(l) and section 193 on 

the facts and circumstances of the 

revision, the Agency believes in general 

that this type of SIP revision should not 

entail a complicated analysis to meet 

these statutory requirements. 

Presumably, the replacement of an 

automatic exemption applicable to 

startup and shutdown with an 

appropriate alternative emission 

limitation would not constitute 

backsliding, would strengthen the SIP 

and would be consistent with the 

overarching requirement that the SIP 

revision be consistent with the 

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405These recommendations are discussed in 

detail in section VII.B.2 of this document. 

requirements of the CAA. The state 

should develop that alternative 

emission limitation in accordance with 

the EPA’s guidance recommendations 

for such provisions to assure that it 

would meet CAA requirements.405 In 

addition, that alternative emission 

limitation would both need to meet the 

overarching CAA applicable 

requirements that the emission 

limitation is designed and intended to 

meet (e.g., RACT-level controls for the 

source category in an attainment area for 

a NAAQS) and need to be legally and 

practically enforceable (e.g., have 

adequate recordkeeping, reporting, 

monitoring or other features requisite 

for enforcement). If a state has 

developed the alternative emission 

limitation consistent with these criteria, 

then the EPA anticipates that the 

revision of the emission limitation to 

replace the exemption with an 

alternative emission limitation 

applicable to startup and shutdown 

would not be backsliding, would be a 

strengthening of the SIP and would be 

consistent with the requirement of 

section 110(l) that a SIP revision be 

consistent with the requirements of the 

CAA. Similarly, if section 193 applies to 

the emission limitation that the state is 

revising, then the replacement of an 

exemption applicable to emissions 

during startup and shutdown with an 

appropriately developed alternative 

emission limitation that explicitly 

applies during startup and shutdown 

would presumably result in equal or 

greater emission reductions and thus 

should meet the requirements of section 

193 without the need for a more 

complicated analysis. 

Example 3: A state elects to revise an 

existing SIP provision not merely by 

removal of an existing automatic 

exemption provision, director’s 

discretion provision, enforcement 

discretion provision or affirmative 

defense provision, but by the removal of 

the deficiency combined with a total 

revision of the emission limitation. The 

EPA anticipates that there may be 

emission limitations for which a state 

may elect to do such a wholesale 

revision of the SIP provision as part of 

eliminating an impermissible 

component of the existing provision 

(e.g., removal of an automatic 

exemption applicable to emissions 

during SSM events through a complete 

revision of the emission limitation to 

create a different emission limitation 

that applies at all times, including 

during SSM events). In developing a 

completely revised SIP provision, the 

state should assure that the replacement 

provision meets the applicable 

overarching CAA requirements that the 

provision is designed and intended to 

meet, is legally and practically 

enforceable and is not less stringent 

than the prior SIP provision. The EPA 

believes in general that this type of SIP 

revision may require a more in-depth 

analysis to meet these statutory 

requirements of section 110(l) and 

section 193. To the extent that there is 

any concern that the revised SIP 

provision is less stringent than the 

provision it replaces, then there will 

need to be a careful evaluation as to 

whether the revised provision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress and with 

any other applicable requirement of the 

CAA. Presumably, however, so long as 

the state has properly developed the 

revised emission limitation to assure 

that it meets the overarching CAA 

requirements and to assure that it will 

not result in a less stringent emission 

limitation, then the complete revision of 

the emission limitation would not 

constitute backsliding, would be a 

strengthening of the SIP and thereby 

would comply with section 110(l). If the 

SIP revision is also governed by section 

193, then there will also need to be an 

analysis to assure that the revision will 

result in equal or greater emission 

reductions and thus comply with 

section 193. To the extent that there is 

concern that the revision would result 

in a less stringent emission limitation 

than the preexisting emission limitation, 

then a more complex analysis would 

likely be required. 

The EPA emphasizes that each SIP 

revision must be evaluated for 

compliance with section 110(l) and 

section 193 on the facts and 

circumstances of the specific revision, 

but these examples are intended to 

provide general guidance on the 

considerations and the nature of the 

analysis that may be appropriate for 

different types of SIP revisions. States 

should contact their respective EPA 

Regional Offices (see the 

SUPPLEMENTARY INFORMATION section of 

this document) for further 

recommendations and assistance 

concerning the analysis appropriate for 

specific SIP revisions in response to this 

SIP call. 

XI. Statement of the EPA’s SSM SIP 

Policy as of 2015 

The EPA’s longstanding interpretation 

of the CAA is that SIP provisions cannot 

include exemptions from emission 

limitations for emissions during SSM 

events. In order to be permissible in a 

SIP, an emission limitation must be 

applicable to the source continuously, 

i.e., cannot include periods during 

which emissions from the source are 

legally or functionally exempt from 

regulation. Regardless of its form, a fully 

approvable SIP emission limitation 

must also meet all substantive 

requirements of the CAA applicable to 

such a SIP provision, e.g., the statutory 

requirement of section 172(c)(1) for 

imposition of RACM and RACT on 

sources located in designated 

nonattainment areas. 

This section of the document provides 

more specific guidance on the 

appropriate treatment of emissions 

during SSM events in SIP provisions, 

replacing the EPA’s prior guidance 

issued in memoranda of 1982, 1983, 

1999 and 2001. The more extended 

explanations and interpretations 

provided in other sections of this 

document are also applicable, should a 

situation arise that is not sufficiently 

covered by this section’s more concise 

policy statement. This SSM Policy as of 

2015 is a policy statement and thus 

constitutes guidance. As guidance, this 

SSM Policy as of 2015 does not bind 

states, the EPA or other parties, but it 

does reflect the EPA’s interpretation of 

the statutory requirements of the CAA. 

The EPA’s evaluation of any SIP 

provision, whether prospectively in the 

case of a new provision in a SIP 

submission or retrospectively in the 

case of a previously approved SIP 

submission, must be conducted through 

a notice-and-comment rulemaking in 

which the EPA will determine whether 

a given SIP provision is consistent with 

the requirements of the CAA and 

applicable regulations. 

A. Definitions 

The term alternative emission 

limitation means, in this document, an 

emission limitation in a SIP that applies 

to a source during some but not all 

periods of normal operation (e.g., 

applies only during a specifically 

defined mode of operation such as 

startup or shutdown). An alternative 

emission limitation is a component of a 

continuously applicable SIP emission 

limitation, and it may take the form of 

a control measure such as a design, 

equipment, work practice or operational 

standard (whether or not numerical). 

This definition of the term is 

independent of the statutory use of the 

term ‘‘alternative means of emission 

limitation’’ in sections 111(h)(3) and 

112(h)(3), which pertain to the 

conditions under which the EPA may 

pursuant to sections 111 and 112 

promulgate emission limitations, or 

components of emission limitations, 

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406The EPA notes that problematic ‘‘director’s 

discretion’’ provisions are not limited only to those 

that purport to authorize alternative emission 

limitations from those required in a SIP. Other 

problematic director’s discretion provisions include 

those that purport to provide for discretionary 

changes to other substantive requirements of the 

SIP, such as applicability, operating requirements, 

recordkeeping requirements, monitoring 

requirements, test methods or alternative 

compliance methods. 

that are not necessarily in numeric 

format. 

The term automatic exemption means 

a generally applicable provision in a SIP 

that would provide that if certain 

conditions existed during a period of 

excess emissions, then those 

exceedances would not be considered 

violations of the applicable emission 

limitations. 

The term director’s discretion 

provision means, in general, a regulatory 

provision that authorizes a state 

regulatory official unilaterally to grant 

exemptions or variances from otherwise 

applicable emission limitations or 

control measures, or to excuse 

noncompliance with otherwise 

applicable emission limitations or 

control measures, which would be 

binding on the EPA and the public. 

The term emission limitation means, 

in the context of a SIP, a legally binding 

restriction on emissions from a source 

or source category, such as a numerical 

emission limitation, a numerical 

emission limitation with higher or lower 

levels applicable during specific modes 

of source operation, a specific 

technological control measure 

requirement, a work practice standard, 

or a combination of these things as 

components of a comprehensive and 

continuous emission limitation in a SIP 

provision. In this respect, the term 

emission limitation is defined as in 

section 302(k) of the CAA. By 

definition, an emission limitation can 

take various forms or a combination of 

forms, but in order to be permissible in 

a SIP it must be applicable to the source 

continuously, i.e., cannot include 

periods during which emissions from 

the source are legally or functionally 

exempt from regulation. Regardless of 

its form, a fully approvable SIP emission 

limitation must also meet all substantive 

requirements of the CAA applicable to 

such a SIP provision, e.g., the statutory 

requirement of section 172(c)(1) for 

imposition of reasonably available 

control measures and reasonably 

available control technology (RACM and 

RACT) on sources located in designated 

nonattainment areas. 

The term excess emissions means the 

emissions of air pollutants from a source 

that exceed any applicable SIP emission 

limitation. In particular, this term 

includes those emissions above the 

otherwise applicable SIP emission 

limitation that occur during startup, 

shutdown, malfunction or other modes 

of source operation, i.e., emissions that 

would be considered violations of the 

applicable emission limitation but for 

an impermissible automatic or 

discretionary exemption from such 

emission limitation. 

The term malfunction means a 

sudden and unavoidable breakdown of 

process or control equipment. 

The term shutdown means, generally, 

the cessation of operation of a source for 

any reason. In this document, the EPA 

uses this term in the generic sense. In 

individual SIP provisions it may be 

appropriate to include a specifically 

tailored definition of this term to 

address a particular source category for 

a particular purpose. 

The term SSM refers to startup, 

shutdown or malfunction at a source. It 

does not include periods of 

maintenance at such a source. An SSM 

event is a period of startup, shutdown 

or malfunction during which there are 

exceedances of the applicable emission 

limitations and thus excess emissions. 

The term startup means, generally, 

the setting in operation of a source for 

any reason. In this document, the EPA 

uses this term in the generic sense. In 

an individual SIP provision it may be 

appropriate to include a specifically 

tailored definition of this term to 

address a particular source category for 

a particular purpose. 

B. Emission Limitations in SIPs Must 

Apply Continuously During All Modes 

of Operation, Without Automatic or 

Discretionary Exemptions or Overly 

Broad Enforcement Discretion 

Provisions That Would Bar Enforcement 

by the EPA or by Other Parties in 

Federal Court Through a Citizen Suit 

In accordance with CAA section 

302(k), SIPs must contain emission 

limitations that ‘‘limit the quantity, rate, 

or concentration of emissions of air 

pollutants on a continuous basis.’’ All of 

the specific requirements of a SIP 

emission limitation must be discernible 

in the SIP, for clarity preferably within 

a single section or provision; must meet 

the applicable substantive and 

stringency requirements of the CAA; 

and must be legally and practically 

enforceable. 

To the extent that a SIP provision 

allows any period of time when a source 

is not subject to any requirement that 

limits emissions, the requirements 

limiting the source’s emissions by 

definition cannot do so ‘‘on a 

continuous basis.’’ Such a source would 

not be subject to an ‘‘emission 

limitation,’’ as required by the 

definition of that term under section 

302(k). However, the CAA allows SIP 

provisions that include numerical 

limitations, specific technological 

control requirements and/or work 

practice requirements that limit 

emissions during startup and shutdown 

as components of a continuously 

applicable emission limitation, as 

discussed in section XI.C of this 

document. 

Accordingly, automatic or 

discretionary exemption provisions 

applicable during SSM events are 

impermissible in SIPs. This 

impermissibility applies even for 

‘‘brief’’ exemptions from limits on 

emissions, because such exemptions 

nevertheless render the limitation 

noncontinuous. Furthermore, the fact 

that a SIP provision includes 

prerequisites to qualifying for an SSM 

exemption does not mean those 

prerequisites are themselves an 

‘‘alternative emission limitation’’ 

applicable during SSM events. 

Automatic exemptions. A typical SIP 

provision that includes an 

impermissible automatic exemption 

would provide that a source has to meet 

a specific emission limitation during all 

modes of operation except startup, 

shutdown and malfunction; by 

definition any excess emissions during 

such events would not be violations and 

thus there could be no enforcement 

based on those excess emissions. With 

respect to automatic exemptions from 

emission limitations in SIPs, the EPA’s 

longstanding interpretation of the CAA 

is that such exemptions are 

impermissible because they are 

inconsistent with the fundamental 

requirements of the CAA. Automatic 

exemptions from otherwise applicable 

emission limitations render those 

emission limitations less than 

continuous as required by CAA sections 

302(k), 110(a)(2)(A) and 110(a)(2)(C), 

thereby inconsistent with a fundamental 

requirement of the CAA and thus 

substantially inadequate as 

contemplated in CAA section 110(k)(5). 

Discretionary exemptions. A typical 

SIP provision that includes an 

impermissible ‘‘director’s discretion’’ 

component would purport to authorize 

air agency personnel to modify existing 

SIP requirements under certain 

conditions, e.g., to grant a variance from 

an otherwise applicable emission 

limitation if the source could not meet 

the requirement in certain 

circumstances.406 Director’s discretion 

provisions operate to allow air agency 

personnel to make unilateral decisions 

on an ad hoc basis, up to and including 

the granting of complete exemptions for 

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407Under CAA section 116, states have the 

explicit general authority to regulate more 

stringently than the EPA. Indeed, under section 116 

states can regulate sources subject to EPA 

regulations promulgated under section 111 or 

section 112 so long as they do not regulate them 

less stringently. According, the EPA believes that 

states may elect to adopt EPA regulations under 

section 111 or section 112 as SIP provisions and 

expressly eliminate the exemptions for emissions 

during SSM events. 

emissions during SSM events, thereby 

negating any possibility of enforcement 

for what would be violations of the 

otherwise applicable emission 

limitation. With respect to such 

director’s discretion provisions in SIPs, 

the EPA interprets the CAA to prohibit 

these if they provide unbounded 

discretion to allow what would amount 

to a case-specific revision of the SIP 

without meeting the statutory 

requirements of the CAA for SIP 

revisions. In particular, the EPA 

interprets the CAA to preclude SIP 

provisions that provide director’s 

discretion authority to create 

discretionary exemptions for violations 

when the CAA would not allow such 

exemptions in the first instance. 

If an air agency elects to have SIP 

provisions that contain a director’s 

discretion feature, then to be consistent 

with CAA requirements the provisions 

must be structured so that any resulting 

variances or other deviations from the 

emission limitation or other SIP 

requirements have no federal law 

validity, unless and until the EPA 

specifically approves that exercise of the 

director’s discretion as a SIP revision. 

Barring such a later ratification by the 

EPA through a SIP revision, the exercise 

of director’s discretion is only valid for 

state (or tribal) law purposes and would 

have no bearing in the event of an action 

to enforce the provision of the SIP as it 

was originally approved by the EPA. 

Adoption of the EPA’s NSPS or 

NESHAP that have not yet been revised. 

The EPA has recently begun revising 

and will continue to revise NSPS and 

NESHAP as needed, to make the EPA’s 

regulations consistent with CAA 

requirements by removing exemptions 

and affirmative defense provisions 

applicable to SSM events, and generally 

on the same legal basis as for this action. 

A state should not submit an NSPS or 

NESHAP for inclusion into its SIP as an 

emission limitation (whether through 

incorporation by reference or otherwise) 

unless either: (i) That NSPS or NESHAP 

does not include an exemption or 

affirmative defense for SSM events; or 

(ii) the state takes action as part of the 

SIP submission to render such 

exemption or affirmative defense 

inapplicable to the SIP emission 

limitation. Because SIP provisions must 

apply continuously, including during 

SSM events, the EPA can no longer 

approve SIP submissions that include 

any emission limitations with such 

exemptions, even if those emission 

limitations are NSPS or NESHAP 

regulations that the EPA has not yet 

revised to make consistent with CAA 

requirements. Alternatively, states may 

elect to adopt an existing NSPS or 

NESHAP as a SIP provision, so long as 

the SIP provision excludes the 

exemption or affirmative defense 

applicable to SSM events.407 States may 

also wish to replace the SSM exemption 

in NSPS or NESHAP regulations with 

appropriately developed alternative 

emission limitations that apply during 

startup and shutdown in lieu of the 

SSM exemption. Otherwise, the EPA’s 

approval of the deficient SSM 

exemption provisions into the SIP 

would contravene CAA requirements for 

SIP provisions and would potentially 

result in misinterpretation or 

misapplication of the standards by 

regulators, regulated entities, courts and 

members of the public. The EPA 

emphasizes that the inclusion of an 

NSPS or NESHAP as an emission 

limitation in a state’s SIP is different 

and distinct from reliance on such 

standards indirectly, such as reliance on 

the NSPS or NESHAP as a source of 

emission reductions that may be taken 

into account for SIP planning purposes 

in emissions inventories or attainment 

demonstrations. For those uses, states 

may continue to rely on the EPA’s NSPS 

and NESHAP regulations, even those 

that have not yet been revised to remove 

inappropriate exemptions, in 

accordance with the requirements 

applicable to those SIP planning 

functions. 

Other modes of normal operation. 

SIPs also may not create automatic or 

discretionary exemptions from 

otherwise applicable emission 

limitations during periods such as 

‘‘maintenance,’’ ‘‘load change,’’ ‘‘sootblowing,’’ ‘‘on-line operating changes’’ 

or other similar normal modes of 

operation. Like startup and shutdown, 

the EPA considers all of these to be 

modes of normal operation at a source, 

for which the source can be designed, 

operated and maintained in order to 

meet an applicable emission limitations 

and during which the source should be 

expected to control and minimize 

emissions. Excess emissions that occur 

during planned and predicted periods 

should be treated as violations of 

applicable emission limitations. 

Accordingly, exemptions for emissions 

during these periods of normal source 

operation are not consistent with CAA 

requirements. 

It may be appropriate for an air 

agency to establish an alternative 

numerical limitation or other form of 

control measure that applies during 

these modes of source operation, as for 

startup and shutdown events, but any 

such alternative emission limitation 

should be developed using the same 

criteria that the EPA recommends for 

alternative emission limitations 

applicable during startup and 

shutdown. Similarly, any SIP provision 

that includes an emission limitation for 

sources that includes alternative 

emission limitations applicable to 

modes of operation such as 

‘‘maintenance,’’ ‘‘load change,’’ ‘‘sootblowing’’ or ‘‘on-line operating 

changes’’ must also meet the applicable 

level of stringency for that type of 

emission limitation and be practically 

and legally enforceable. 

C. Emission Limitations in SIPs May 

Contain Components Applicable to 

Different Modes of Operation That Take 

Different Forms, and Numerical 

Emission Limitations May Have 

Differing Levels and Forms for Different 

Modes of Operation 

There are approaches other than 

exemptions that would be consistent 

with CAA requirements for SIP 

provisions that states can use to address 

excess emissions during certain events. 

While automatic exemptions and 

director’s discretion exemptions from 

otherwise applicable emission 

limitations for SSM events are not 

consistent with the CAA, SIPs may 

include criteria and procedures for the 

use of enforcement discretion by air 

agency personnel, as described in 

section XI.E of this document. Similarly, 

SIPs may, rather than exempt excess 

emissions, include emission limitations 

that subject those emissions to 

alternative numerical limitations or 

other control requirements during 

startup and shutdown events or other 

normal modes of operation, so long as 

those components of the emission 

limitations meet applicable CAA 

requirements and are legally and 

practically enforceable. 

The EPA does not interpret section 

110(a)(2) or section 302(k) to require 

that an emission limitation in a SIP 

provision be composed of a single, 

uniformly applicable numerical 

emission limitation. The text of section 

110(a)(2) and section 302(k) does not 

require states to impose emission 

limitations that include a static, 

inflexible standard. The critical aspect 

for purposes of section 302(k) is that the 

SIP provision impose limits on 

emissions on a continuous basis, 

regardless of whether the emission 

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408The EPA notes that CAA section 123 explicitly 

prohibits certain intermittent or supplemental 

controls on sources. In a situation where an 

emission limitation is continuous, by virtue of the 

fact that it has components applicable during all 

modes of source operation, the EPA would not 

interpret the components that applied only during 

certain modes of operation, e.g., startup and 

shutdown, to be prohibited intermittent or 

supplemental controls. 

409Every source is designed, maintained and 

operated with the expectation that the source will 

at least occasionally start up and shut down, and 

thus these modes of operation are ‘‘normal’’ in the 

sense that they are to be expected. The EPA uses 

this term in the ordinary sense of the word to 

distinguish between such predictable modes of 

source operation and genuine ‘‘malfunctions,’’ 

which are by definition supposed to be 

unpredictable and unforeseen events that could not 

have been precluded by proper source design, 

maintenance and operation. 

limitation as a whole is expressed 

numerically or as a combination of 

numerical limitations, specific control 

technology requirements and/or work 

practice requirements applicable during 

specific modes of operation, and 

regardless of whether the emission 

limitation is static or variable. Thus, 

emission limitations in SIP provisions 

do not have to be composed solely of 

numerical emission limitations 

applicable at all times. For example, so 

long as the SIP provision meets other 

applicable requirements, it may impose 

different numerical limitations for 

startup and shutdown. Also, for 

example, SIPs can contain numerical 

emission limitations applicable only to 

some periods and other forms of 

controls applicable only to some 

periods, with certain periods perhaps 

subject to both types of limitation. Thus, 

SIP emission limitations: (i) Do not need 

to be numerical in format; (ii) do not 

have to apply the same limitation (e.g., 

numerical level) at all times; and (iii) 

may be composed of a combination of 

numerical limitations, specific 

technological control requirements and/ 

or work practice requirements, with 

each component of the emission 

limitation applicable during a defined 

mode of source operation. In practice, it 

may be that numerical emission 

limitations are the most appropriate 

from a regulatory perspective (e.g., to be 

legally and practically enforceable) and 

thus the emission limitation would need 

to be established in this form to meet 

CAA requirements. It is important to 

emphasize, however, that regardless of 

how the state structures or expresses a 

SIP emission limitation—whether solely 

as one numerical limitation, as a 

combination of different numerical 

limitations or as a combination of 

numerical limitations, specific 

technological control requirements and/ 

or work practice requirements that 

apply during certain modes of operation 

such as startup and shutdown—the 

emission limitation as a whole must be 

continuous, must meet applicable CAA 

stringency requirements and must be 

legally and practically enforceable.408

Startup and shutdown are part of the 

normal operation of a source and should 

be accounted for in the design and 

operation of the source.409 It should be 

possible to determine an appropriate 

form and degree of emission control 

during startup and shutdown and to 

achieve that control on a regular basis. 

Thus, sources should be required to 

meet defined SIP emission limitations 

during startup and shutdown. However, 

the EPA interprets the CAA to permit 

SIP emission limitations that include 

alternative emission limitations 

specifically applicable during startup 

and shutdown. Regarding startup and 

shutdown periods, the EPA considers 

the following to be the correct approach 

to creating an emission limitation: (i) 

The emission limitation contains no 

exemption for emissions during SSM 

events; (ii) the component of any 

alternative emission limitation that 

applies during startup and shutdown is 

clearly stated and obviously is an 

emission limitation that applies to the 

source; (iii) the component of any 

alternative emission limitation that 

applies during startup and shutdown 

meets the applicable stringency level for 

this type of emission limitation; and (iv) 

the emission limitation contains 

requirements to make it legally and 

practically enforceable. Section XI.D of 

this document contains more specific 

recommendations to states for 

developing alternative emission 

limitations. 

In contrast to startup and shutdown, 

a malfunction is unpredictable as to the 

timing of the start of the malfunction 

event, its duration and its exact nature. 

The effect of a malfunction on emissions 

is therefore unpredictable and variable, 

making the development of an 

alternative emission limitation for 

malfunctions problematic. There may be 

rare instances in which certain types of 

malfunctions at certain types of sources 

are foreseeable and foreseen and thus 

are an expected mode of source 

operation. In such circumstances, the 

EPA believes that sources should be 

expected to meet the otherwise 

applicable emission limitation in order 

to encourage sources to be properly 

designed, maintained and operated in 

order to prevent or minimize any such 

malfunctions. To the extent that a given 

type of malfunction is so foreseeable 

and foreseen that a state considers it a 

normal mode of operation that is 

appropriate for a specifically designed 

alternative emission limitation, then 

such alternative should be developed in 

accordance with the recommended 

criteria for alternative emission 

limitations. The EPA does not believe 

that generic general-duty provisions, 

such as a general duty to minimize 

emissions, is sufficient as an alternative 

emission limitation for any type of event 

including malfunctions. 

States developing SIP revisions to 

remove impermissible exemption 

provisions from emissions limitations 

may choose to consider reassessing 

particular emission limitations, for 

example to determine whether limits 

originally applicable only during nonSSM periods can be revised such that 

well-managed emissions during planned 

operations such as startup and 

shutdown would not exceed the revised 

emission limitation, while still 

protecting air quality and meeting other 

applicable CAA requirements. Such a 

revision of an emission limitation will 

need to be submitted as a SIP revision 

for EPA approval if the existing 

limitation to be changed is already 

included in the SIP or if the existing SIP 

relies on the particular existing 

emission limitation to meet a CAA 

requirement. 

Some SIPs contain other generic 

regulatory requirements frequently 

referred to as ‘‘general duty’’ type 

requirements, such as a general duty to 

minimize emissions at all times, a 

general duty to use good engineering 

judgment at all times or a general duty 

not to cause a violation of the NAAQS 

at any time. To the extent that such 

other general-duty requirement is 

properly established and legally and 

practically enforceable, the EPA would 

agree that it may be an appropriate 

separate requirement to impose upon 

sources in addition to the (continuous) 

emission limitation. The EPA itself 

imposes separate general duties of this 

type in appropriate circumstances. The 

existence of these generic provisions 

does not, however, legitimize 

exemptions for emissions during SSM 

events in a SIP provision that imposes 

an emission limitation. 

General-duty requirements that are 

not clearly part of or explicitly crossreferenced in a SIP emission limitation 

cannot be viewed as a component of a 

continuous emission limitation. Even if 

clearly part of or explicitly crossreferenced in the SIP emission 

limitation, however, a given generalduty requirement may not be consistent 

with the applicable stringency 

requirements for SIP provisions that 

should apply during startup and 

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410For example, the EPA has concerns the some 

general-duty provisions, if at any point relied upon 

as the sole requirement purportedly limiting 

emissions, could undermine the ability to ensure 

compliance with SIP emission limitations relied on 

to achieve the NAAQS and other relevant CAA 

requirements at all times. See section 110(a)(2)(A), 

(C); US Magnesium, LLC v. EPA, 690 F.3d 1157, 

1161–62 (10th Cir. 2012). 

411The EPA notes that only the state and the 

Agency have authority to seek criminal penalties for 

knowing and intentional violation of CAA 

requirements. The EPA has this explicit authority 

under CAA section 113(c). 

shutdown. In general, the EPA believes 

that a legally and practically enforceable 

alternative emission limitation 

applicable during startup and shutdown 

should be expressed as a numerical 

limitation, a specific technological 

control requirement or a specific work 

practice applicable to affected sources 

during specifically defined periods or 

modes of operation. Accordingly, while 

states are free to include general-duty 

provisions in their SIPs as separate 

additional requirements, for example, to 

ensure that owners and operators act 

consistent with reasonable standards of 

care, the EPA does not recommend 

using these background standards to 

bridge unlawful interruptions in an 

emission limitation.410

D. Recommendations for Development 

of Alternative Emission Limitations 

Applicable During Startup and 

Shutdown 

A state can develop special, 

alternative emission limitations that 

apply during startup or shutdown if the 

source cannot meet the otherwise 

applicable emission limitation in the 

SIP. SIP provisions may include 

alternative emission limitations for 

startup and shutdown as part of a 

continuously applicable emission 

limitation when properly developed and 

otherwise consistent with CAA 

requirements. However, if a nonnumerical requirement does not itself 

(or in combination with other 

components of the emission limitation) 

limit the quantity, rate or concentration 

of air pollutants on a continuous basis, 

then the non-numerical standard (or 

overarching requirement) does not meet 

the statutory definition of an emission 

limitation under section 302(k). 

In cases in which measurement of 

emissions during startup and/or 

shutdown is not reasonably feasible, it 

may be appropriate for an emission 

limitation to include as a component a 

control for startup and/or shutdown 

periods other than a numerically 

expressed emission limitation. 

The federal NESHAP and NSPS 

regulations and the technical materials 

in the public record for those rules may 

provide assistance for states as they 

develop and consider emission 

limitations and alternative emission 

limitations for sources in their states, 

and definitions of startup and shutdown 

events and work practices for them 

found in these regulations may be 

appropriate for adoption by the state in 

certain circumstances. In particular, the 

NSPS regulations should provide very 

relevant information for sources of the 

same type, size and control equipment 

type, even if the sources were not 

constructed or modified within a date 

range that would make them subject to 

the NSPS. The EPA therefore 

encourages states to explore these 

approaches. 

The EPA recommends that, in order to 

be approvable (i.e., meet CAA 

requirements), alternative requirements 

applicable to the source during startup 

and shutdown should be narrowly 

tailored and take into account 

considerations such as the technological 

limitations of the specific source 

category and the control technology that 

is feasible during startup and shutdown. 

The EPA recommends the following 

seven specific criteria as appropriate 

considerations for developing emission 

limitations in SIP provisions that apply 

during startup and shutdown: 

(1) The revision is limited to specific, 

narrowly defined source categories 

using specific control strategies (e.g., 

cogeneration facilities burning natural 

gas and using selective catalytic 

reduction); 

(2) Use of the control strategy for this 

source category is technically infeasible 

during startup or shutdown periods; 

(3) The alternative emission limitation 

requires that the frequency and duration 

of operation in startup or shutdown 

mode are minimized to the greatest 

extent practicable; 

(4) As part of its justification of the 

SIP revision, the state analyzes the 

potential worst-case emissions that 

could occur during startup and 

shutdown based on the applicable 

alternative emission limitation; 

(5) The alternative emission limitation 

requires that all possible steps are taken 

to minimize the impact of emissions 

during startup and shutdown on 

ambient air quality; 

(6) The alternative emission limitation 

requires that, at all times, the facility is 

operated in a manner consistent with 

good practice for minimizing emissions 

and the source uses best efforts 

regarding planning, design, and 

operating procedures; and 

(7) The alternative emission limitation 

requires that the owner or operator’s 

actions during startup and shutdown 

periods are documented by properly 

signed, contemporaneous operating logs 

or other relevant evidence. 

If a state elects to create an emission 

limitation with different levels of 

control applicable during specifically 

defined periods of startup and 

shutdown than during other normal 

modes of operation, then the resulting 

emission limitation must meet the 

substantive requirements applicable to 

the type of SIP provision at issue, meet 

the applicable level of stringency for 

that type of emission limitation and be 

legally and practically enforceable. 

Alternative emission limitations 

applicable during startup and shutdown 

cannot allow an inappropriately high 

level of emissions or an effectively 

unlimited or uncontrolled level of 

emissions, as those would constitute 

impermissible de facto exemptions for 

emissions during certain modes of 

operation. 

E. Enforcement Discretion Provisions 

One approach other than exemptions 

that would be consistent with CAA 

requirements for SIP provisions that 

states can use to address excess 

emissions during SSM events is to 

include in the SIP criteria and 

procedures for the use of enforcement 

discretion by air agency personnel. SIPs 

may contain such provisions concerning 

the exercise of discretion by the air 

agency’s own personnel, but such 

provisions cannot bar enforcement by 

the EPA or by other parties through a 

citizen suit. 

Pursuant to the CAA, all parties with 

authority to bring an enforcement action 

to enforce SIP provisions (i.e., the state, 

the EPA or any parties who qualify 

under the citizen suit provision of 

section 304) have enforcement 

discretion that they may exercise as they 

deem appropriate in any given 

circumstances. For example, if the event 

that causes excess emissions is an actual 

malfunction that occurred despite 

reasonable care by the source operator 

to avoid malfunctions, then each of 

these parties may decide that no 

enforcement action is warranted. In the 

event that any party decides that an 

enforcement action is warranted, then it 

has enforcement discretion with respect 

to what remedies to seek from the court 

for the violation (e.g., injunctive relief, 

compliance order, monetary penalties or 

all of the above), as well as the type of 

injunctive relief and/or amount of 

monetary penalties sought.411

As part of state programs governing 

enforcement, states can include 

regulatory provisions or may adopt 

policies setting forth criteria for how 

they plan to exercise their own 

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412 551 F.3d 1019 (D.C. Cir. 2008). 

enforcement authority. Under section 

110(a)(2), states must have adequate 

authority to enforce provisions adopted 

into the SIP, but states can establish 

criteria for how they plan to exercise 

that authority. Such enforcement 

discretion provisions cannot, however, 

impinge upon the enforcement authority 

of the EPA or of others pursuant to the 

citizen suit provision of the CAA. Such 

enforcement discretion provisions in a 

SIP would be inconsistent with the 

enforcement structure provided in the 

CAA. Specifically, the statute provides 

explicit independent enforcement 

authority to the EPA under CAA section 

113 and to citizens under CAA section 

304. Thus, the CAA contemplates that 

the EPA and citizens have authority to 

pursue enforcement for a violation even 

if the state elects not to do so. The EPA 

and citizens, and any federal court in 

which they seek to pursue an 

enforcement claim for violation of SIP 

requirements, must retain the authority 

to evaluate independently whether a 

source’s violation of an emission 

limitation warrants enforcement action. 

Potential for enforcement by the EPA or 

through a citizen suit provides an 

important safeguard in the event that 

the state lacks resources or ability to 

enforce violations and provides 

additional deterrence. Accordingly, a 

SIP provision that operates at the state’s 

election to eliminate the authority of the 

EPA or the public to pursue 

enforcement actions in federal court 

would undermine the enforcement 

structure of the CAA and would thus be 

substantially inadequate to meet 

fundamental requirements of the CAA. 

Also, states should not adopt overly 

broad enforcement discretion provisions 

for inclusion in their SIPs, even for their 

own personnel. Section 110(a)(2) 

requires states to have adequate 

enforcement authority, and overly broad 

enforcement discretion provisions 

would run afoul of this requirement if 

they have the effect of precluding 

adequate state authority to enforce SIP 

requirements. If such provisions are 

sufficiently specific, provide for 

sufficient public process and are 

sufficiently bounded, so that it is 

possible to anticipate at the time of the 

EPA’s approval of the SIP provision 

how that provision will actually be 

applied and the potential adverse 

impacts thereof, then such a provision 

might meet basic CAA requirements. In 

essence, if it is possible to anticipate 

and evaluate in advance how the 

exercise of enforcement discretion could 

affect compliance with other CAA 

requirements, then it may be possible to 

determine in advance that the 

preauthorized exercise of director’s 

discretion will not interfere with other 

CAA requirements, such as providing 

for attainment and maintenance of the 

NAAQS. 

When using enforcement discretion in 

determining whether an enforcement 

action is appropriate in the case of 

excess emissions during a malfunction, 

satisfaction of the following criteria 

should be considered: 

(1) To the maximum extent 

practicable the air pollution control 

equipment, process equipment or 

processes were maintained and operated 

in a manner consistent with good 

practice for minimizing emissions; 

(2) Repairs were made in an 

expeditious fashion when the operator 

knew or should have known that 

applicable emission limitations were 

being exceeded. Off-shift labor and 

overtime were utilized, to the extent 

practicable, to ensure that such repairs 

were made as expeditiously as 

practicable; 

(3) The amount and duration of the 

excess emissions (including any bypass) 

were minimized to the maximum extent 

practicable during periods of such 

emissions; 

(4) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality; and 

(5) The excess emissions are not part 

of a recurring pattern indicative of 

inadequate design, operation or 

maintenance. 

F. Affirmative Defense Provisions in 

SIPs 

The EPA believes that SIP provisions 

that function to alter the jurisdiction or 

discretion of the federal courts under 

CAA section 113 and section 304 to 

determine liability and to impose 

remedies are inconsistent with 

fundamental legal requirements of the 

CAA, especially with respect to the 

enforcement regime explicitly created 

by statute. Affirmative defense 

provisions by their nature purport to 

limit or eliminate the authority of 

federal courts to find liability or to 

impose remedies through factual 

considerations that differ from, or are 

contrary to, the explicit grants of 

authority in section 113(b) and section 

113(e). These provisions are not 

appropriate under the CAA, no matter 

what type of event they apply to, what 

criteria they contain or what forms of 

remedy they purport to limit or 

eliminate. 

Section 113(b) provides courts with 

explicit jurisdiction to determine 

liability and to impose remedies of 

various kinds, including injunctive 

relief, compliance orders and monetary 

penalties, in judicial enforcement 

proceedings. This grant of jurisdiction 

comes directly from Congress, and the 

EPA is not authorized to alter or 

eliminate this jurisdiction under the 

CAA or any other law. With respect to 

monetary penalties, CAA section 113(e) 

explicitly includes the factors that 

federal courts and the EPA are required 

to consider in the event of judicial or 

administrative enforcement for 

violations of CAA requirements, 

including SIP provisions. Because 

Congress has already given federal 

courts the jurisdiction to determine 

what monetary penalties are appropriate 

in the event of judicial enforcement for 

a violation of a SIP provision, neither 

the EPA nor states can alter or eliminate 

that jurisdiction by superimposing 

restrictions on that jurisdiction and 

discretion granted by Congress to the 

courts. Accordingly, pursuant to section 

110(k) and section 110(l), the EPA 

cannot approve any such affirmative 

defense provision in a SIP. If such an 

affirmative defense provision is 

included in an existing SIP, the EPA has 

authority under section 110(k)(5) to 

require a state to remove that provision. 

Couching an affirmative defense 

provision in terms of merely defining 

whether the emission limitation applies 

and thus whether there is a ‘‘violation,’’ 

as suggested by some commenters, is 

also problematic. If there is no 

‘‘violation’’ when certain criteria or 

conditions for an ‘‘affirmative defense’’ 

are met, then there is in effect no 

emission limitation that applies when 

the criteria or conditions are met; the 

affirmative defense thus operates to 

create an exemption from the emission 

limitation. As explained in the February 

2013 proposal, the CAA requires that 

emission limitations must apply 

continuously and cannot contain 

exemptions, conditional or otherwise. 

This interpretation is consistent with 

the decision in Sierra Club v. Johnson 

concerning the term ‘‘emission 

limitation’’ in section 302(k).412

Characterizing the exemptions as an 

‘‘affirmative defense’’ runs afoul of the 

requirement that emission limitations 

must apply continuously. 

The EPA wishes to be clear that the 

absence of affirmative defense 

provisions in SIPs does not alter the 

legal rights of sources under the CAA. 

In the event of an enforcement action for 

an exceedance of a SIP emission 

limitation, a source can elect to assert 

any common law or statutory defenses 

that it determines are supported, based 

upon the facts and circumstances 

surrounding the alleged violation. 

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413For example, the degree to which data from 

continuous opacity monitoring systems (COMS) is 

evidence of violations of SIP opacity or PM mass 

emission limitations is a factual question that must 

be resolved on the facts and circumstances in the 

context of an enforcement action. See, e.g., Sierra 

Club v. Pub. Serv. Co. of Colorado, Inc., 894 F.Supp. 

1455 (D. Colo. 1995) (allowing use of COMS data 

to prove opacity limit violations). 

Under section 113(b), courts have 

explicit authority to impose injunctive 

relief, issue compliance orders, assess 

monetary penalties or fees and impose 

any other appropriate relief. Under 

section 113(e), federal courts are 

required to consider the enumerated 

statutory factors when assessing 

monetary penalties, including ‘‘such 

other factors as justice may require.’’ For 

example, if the exceedance of the SIP 

emission limitation occurs due to a 

malfunction, that exceedance is a 

violation of the applicable emission 

limitation but the source retains the 

ability to defend itself in an 

enforcement action and to oppose the 

imposition of particular remedies or to 

seek the reduction or elimination of 

monetary penalties, based on the 

specific facts and circumstances of the 

event. Thus, elimination of a SIP 

affirmative defense provision that 

purported to take away the statutory 

jurisdiction of the federal court to 

exercise its authority to impose 

remedies does not disarm sources in 

potential enforcement actions. Sources 

retain all of the equitable arguments 

they could have made under an 

affirmative defense provision; they must 

simply make such arguments to the 

reviewing court as envisioned by 

Congress in section 113(b) and section 

113(e). 

Once impermissible SSM exemptions 

are removed from the SIP, then any 

excess emissions during such events 

may be the subject of an enforcement 

action, in which the parties may use any 

appropriate evidence to prove or 

disprove the existence and scope of the 

alleged violation and the appropriate 

remedy for an established violation. 

Any alleged violation of an applicable 

SIP emission limitation, if not conceded 

by the source, must be established by 

the party bearing the burden of proof in 

a legal proceeding. The degree to which 

evidence of an alleged violation may 

derive from a specific reference method 

or any other credible evidence must be 

determined based upon the facts and 

circumstances of the exceedance of the 

emission limitation at issue.413 Congress 

vested the federal courts with the 

authority to judge how best to weigh the 

evidence in an enforcement action. 

G. Anti-Backsliding Considerations 

The EPA recognizes that one 

important consideration for air agencies 

as they evaluate how best to revise their 

SIP provisions in response to this SIP 

call is the nature of the analysis that 

will be necessary for the resulting SIP 

revisions under section 110(k)(3), 

section 110(l) and section 193. Under 

section 110(l), the EPA is prohibited 

from approving any SIP revision that 

would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

requirements of the CAA. Section 193 

prohibits states from modifying 

regulations in place prior to November 

15, 1990, unless the modification 

ensures equivalent or greater reductions 

of the pollutant. SIP revision must be 

evaluated for compliance with section 

110(l) and section 193 on the facts and 

circumstances of the specific revision. 

Section X of this document provides 

three example scenarios in which a state 

might remove an impermissible SSM 

provision from its SIP, including how 

sections 110(l) and 193 considerations 

might apply. These examples are 

intended to provide general guidance on 

the considerations and the nature of the 

analysis that may be appropriate for 

different types of SIP revisions. Air 

agencies should contact their respective 

EPA Regional Offices (see the 

SUPPLEMENTARY INFORMATION section of 

this document) for further 

recommendations and assistance 

concerning the analysis appropriate for 

specific SIP revisions involving changes 

in SSM provisions. 

XII. Environmental Justice 

Consideration 

The final action restates the EPA’s 

interpretation of the statutory 

requirements of the CAA. Through the 

SIP calls issued to certain states as part 

of this SIP call action under CAA 

section 110(k)(5), the EPA is only 

requiring each affected state to revise its 

SIP to comply with existing 

requirements of the CAA. The EPA’s 

action therefore leaves to each affected 

state the choice as to how to revise the 

SIP provision in question to make it 

consistent with CAA requirements and 

to determine, among other things, which 

of the several lawful approaches to the 

treatment of excess emissions during 

SSM events will be applied to particular 

sources. The EPA has not performed an 

environmental justice analysis for 

purposes of this action, because it 

cannot geographically locate or quantify 

the resulting source-specific emission 

reductions. Nevertheless, the EPA 

believes this action will provide 

environmental protection for all areas of 

the country. 

XIII. References 

The following is a list of documents 

that are specifically referenced in this 

document. Some listed documents also 

include a document ID number 

associated with the docket for this 

rulemaking. 

1. 1982 SSM Guidance (Memorandum to 

Regional Administrators, Region I–X 

from Kathleen M. Bennett, Assistant 

Administrator for Air, Noise and 

Radiation, Subject: Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions, dated 

September 28, 1982), EPA–HQ–OAR– 

2012–0322–0005. 

2. 1983 SSM Guidance (Memorandum to 

Regional Administrators, Region I–X 

from Kathleen M. Bennett, Assistant 

Administrator for Air, Noise and 

Radiation, Subject: Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions, dated 

February 15, 1983), EPA–HQ–OAR– 

2012–0322–0006. 

3. 1999 SSM Guidance (Memorandum to EPA 

Regional Administrators, Regions I–X 

from Steven A. Herman and Robert 

Perciasepe, USEPA, Subject: State 

Implementation Plans: Policy Regarding 

Excess Emissions During Malfunctions, 

Startup, and Shutdown, dated September 

20, 1999), EPA–HQ–OAR–2012–0322– 

0007. 

4. 2001 SSM Guidance (Memorandum to EPA 

Regional Administrators, Regions I–X 

from Eric Schaeffer, Director, Office of 

Regulatory Enforcement, Office of 

Enforcement and Compliance Assurance, 

and John S. Seitz, Director, Office of Air 

Quality Planning and Standards, Office 

of Air and Radiation, dated December 5, 

2001), EPA–HQ–OAR–2012–0322–0038. 

5. ‘‘Action to Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and 

SIP Call; Final rule,’’ 75 FR 77698 

(December 13, 2010), EPA–HQ–OAR– 

2012–0322–0014. 

6. Am. Farm Bureau Fedn v. United States 

EPA, 984 F.Supp.2d 289 (M.D. Pa. 2013). 

7. Appalachian Power Co. v. EPA, 249 F.3d 

1032 (D.C. Cir. 2001). 

8. Appalachian Power Co. v. EPA, 251 F.3d 

1026 (D.C. Cir. 2001). 

9. ‘‘Approval and Disapproval and 

Promulgation of Air Quality 

Implementation Plans; Colorado; 

Revisions to Regulation 1; Notice of 

proposed rulemaking,’’ 75 FR 42342 

(July 21, 2010), EPA–HQ–OAR–2012– 

0322–0015, finalized as proposed at 76 

FR 4540 (January 26, 2011), EPA–HQ– 

OAR–2012–0322–0016. 

10. ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New 

Hampshire; Reasonably Available 

Control Technology for the 1997 8-Hour 

Ozone Standard; Direct final rule,’’ 77 FR 

66388 (November 5, 2012). 

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11. ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New 

Hampshire; Reasonably Available 

Control Technology Update To Address 

Control Techniques Guidelines Issued in 

2006, 2007, and 2008; Direct final rule,’’ 

77 FR 66921 (November 8, 2012). 

12. ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Redesignation, 

Maintenance Plan, and Emissions 

Inventories for Reading; Ozone 

Redesignations Policy Change; Final 

rule,’’ 62 FR 24826 (May 7, 1997). 

13. ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; Utah; 

Redesignation Request and Maintenance 

Plan for Salt Lake County; Utah County; 

Ogden City PM10 Nonattainment Area; 

Proposed rule,’’ 74 FR 62717 (December 

1, 2009). 

14. ‘‘Approval and Promulgation of 

Implementation Plans and Designation of 

Areas for Air Quality Planning Purposes; 

State of Arizona; Redesignation of 

Phoenix-Mesa Area to Attainment for the 

1997 8-Hour Ozone Standard; Final 

rule,’’ 79 FR 55645 (September 17, 2014). 

15. ‘‘Approval and Promulgation of 

Implementation Plans and Designation of 

Areas for Air Quality Planning Purposes; 

Ohio; Redesignation of the Ohio Portion 

of the Huntington-Ashland 1997 Annual 

Fine Particulate Matter Nonattainment 

Area to Attainment; Final rule,’’ 77 FR 

76883 (December 31, 2012). 

16. ‘‘Approval and Promulgation of 

Implementation Plans and Designation of 

Areas for Air Quality Planning Purposes; 

State of Arizona; Redesignation of the 

Phoenix-Mesa Nonattainment Area to 

Attainment for the 1997 8-Hour Ozone 

Standard; Proposed rule,’’ 79 FR 16734 

(March 26, 2014). 

17. ‘‘Approval and Promulgation of 

Implementation Plans; Arkansas; 

Revisions for the Regulation and 

Permitting of Fine Particulate Matter; 

Final rule,’’ 80 FR 11573 (March 4, 

2015). 

18. ‘‘Approval and Promulgation of 

Implementation Plans; Corrections to the 

Arizona and Nevada State 

Implementation Plans; Direct final rule,’’ 

74 FR 57051 (November 3, 2009), EPA– 

HQ–OAR–2012–0322–0018. 

19. ‘‘Approval and Promulgation of 

Implementation Plans; Designation of 

Areas for Air Quality Planning Purposes; 

State of California; PM–10; Revision of 

Designation; Redesignation of the San 

Joaquin Valley Air Basin PM–10 

Nonattainment Area to Attainment; 

Approval of PM–10 Maintenance Plan 

for the San Joaquin Valley Air Basin; 

Approval of Commitments for the East 

Kern PM–10 Nonattainment Area; 

Proposed rule,’’ 73 FR 22307 (April 25, 

2008). 

20. ‘‘Approval and Promulgation of 

Implementation Plans; Kentucky; 

Approval of Revisions to the Jefferson 

County Portion of the Kentucky SIP; 

Emissions During Startups, Shutdowns, 

and Malfunctions,’’ proposed at 78 FR 

29683 (May 21, 2013) and finalized at 79 

FR 33101 (June 10, 2014), EPA–HQ– 

OAR–2012–0322–0890. 

21. ‘‘Approval and Promulgation of 

Implementation Plans; North Dakota; 

Revisions to the Air Pollution Control 

Rules; Final rule,’’ 79 FR 63045 (October 

22, 2014). 

22. ‘‘Approval and Promulgation of 

Implementation Plans; Texas; Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunction 

Activities,’’ 75 FR 68989 (November 10, 

2010), EPA–HQ–OAR–2012–0322–0892. 

23. ‘‘Approval and Promulgation of 

Implementation Plans; Texas; Revisions 

to the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD), 

Nonattainment NSR (NNSR) for the 1997 

8-Hour Ozone Standard, NSR Reform, 

and a Standard Permit; Proposed rule,’’ 

74 FR 48467 (September 23, 2009). 

24. ‘‘Approval and Promulgation of 

Implementation Plans; Wyoming; 

Revisions to the Air Quality Standards 

and Regulations,’’ 79 FR 62859 (October 

21, 2014). 

25. ‘‘Approval and Promulgation of State 

Implementation Plans; Call for Sulfur 

Dioxide SIP Revisions for Billings/

Laurel, MT [Montana],’’ 58 FR 41430 

(August 4, 1993). 

26. ‘‘Approval and Promulgation of State 

Implementation Plans; Michigan,’’ 63 FR 

8573 (February 20, 1998), EPA–HQ– 

OAR–2012–0322–0023. 

27. Arizona Public Service Co. v. EPA, 562 

F.3d 1116 (10th Cir. 2009). 

28. ATK Launch Systems, Inc. v. EPA, 651 

F.3d 1194 (10th Cir. 2011). 

29. Auer v. Robbins, 519 U.S. 452 (1997). 

30. CAA of 1970, Pub. L. 91–604, section 

4(a), 84 Stat. 1676 (December 31, 1970). 

31. Catawba County, North Carolina v. EPA, 

571 F.3d 20 (D.C. Cir. 2009). 

32. Chevron, U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837 (1984). 

33. ‘‘Clean Air Act Full Approval of Partial 

Operating Permit Program; Allegheny 

County; Pennsylvania; Direct final rule,’’ 

66 FR 55112 (November 1, 2001), EPA– 

HQ–OAR–2012–0322–0020. 

34. Conn. Light & Power Co. v. NRC, 673 F.2d 

525 (D.C. Cir. 1982). 

35. ‘‘Correction of Implementation Plans; 

American Samoa, Arizona, California, 

Hawaii, and Nevada State 

Implementation Plans; Notice of 

proposed rulemaking,’’ 61 FR 38664 

(July 25, 1996), EPA–HQ–OAR–2012– 

0322–0034, finalized at 62 FR 34641 

(June 27, 1997), EPA–HQ–OAR–2012– 

0322–0035. 

36. ‘‘Corrections to the California State 

Implementation Plan,’’ 69 FR 67062 

(November 16, 2004), EPA–HQ–OAR– 

2012–0322–0017. 

37. ‘‘Credible Evidence Revisions; Final 

rule,’’ 62 FR 8314 (February 24, 1997). 

38. ‘‘Draft Emissions Inventory Guidance for 

Implementation of Ozone [and 

Particulate Matter]* National Ambient 

Air Quality Standards (NAAQS) and 

Regional Haze Regulations,’’ April 11, 

2014. 

39. EME Homer City Generation, L.P. v. EPA, 

696 F.3d 7 (D.C. Cir. 2012) rev’d, 134 S. 

Ct. 1584 (2014). 

40. ‘‘Emissions Inventory Guidance for 

Implementation of Ozone and Particulate 

Matter National Ambient Air Quality 

Standards (NAAQS) and Regional Haze 

Regulations,’’ Appendix B, August 2005, 

EPA–454/R–05–001. 

41. ‘‘Federal Implementation Plan for the 

Billings/Laurel, MT [Montana], Sulfur 

Dioxide Area,’’ 73 FR 21418 (April 21, 

2008), EPA–HQ–OAR–2012–0322–0009. 

42. FCC v. Fox Television Stations, Inc., 556 

U.S. 502 (2009). 

43. February 2013 proposal (‘‘State 

Implementation Plans: Response to 

Petition for Rulemaking; Findings of 

Substantial Inadequacy; and SIP Calls To 

Amend Provisions Applying to Excess 

Emissions During Periods of Startup, 

Shutdown, and Malfunction; Proposed 

rule,’’ 78 FR 12459, February 22, 2013), 

EPA–HQ–OAR–2012–0322–0055. 

44. ‘‘Finding of Significant Contribution and 

Rulemaking for Certain States in the 

Ozone Transport Assessment Group 

Region for Purposes of Reducing 

Regional Transport of Ozone,’’ 63 FR 

57356 (October 27, 1998), EPA–HQ– 

OAR–2012–0322–0037. 

45. ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 76 FR 

21639 (April 18, 2011), EPA–HQ–OAR– 

2012–0322–0010. 

46. ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 75 FR 

70888 (November 19, 2010), EPA–HQ– 

OAR–2012–0322–0012. 

47. ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Iowa State 

Implementation Plan Revision,’’ 76 FR 

41424 (July 14, 2011). 

48. ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for California 

State Implementation Plan Revision,’’ 68 

FR 37746 (June 25, 2003). 

49. Florida Power & Light Co. v. Costle, 650 

F.2d 579 (5th Cir. 1981). 

50. Florida Power & Light Co. v. United 

States, 846 F.2d 765 (D.C. Cir. 1988). 

51. ‘‘Guidance on the Use of Models and 

Other Analyses for Demonstrating 

Attainment of Air Quality Goals for 

Ozone, PM2.5, and Regional Haze,’’ April 

2007, EPA–454/B–07–002. 

52. ‘‘Guidelines for Estimating and Applying 

Rule Effectiveness for Ozone/CO State 

Implementation Plan Base Year 

Inventories,’’ November 1992, EPA– 

4S2JR–92.010. 

53. H. Rept. 101–490. 

54. H.R. 95–294 (1977). 

55. Howmet Corp. v. EPA, 614 F.3d 544 (D.C. 

Cir. 2010). 

56. Industrial Environmental Association v. 

Browner, No. 97–71117 (9th Cir. May 26, 

2000). 

57. Ky. Res Council v. EPA, 467 F.3d 986 (6th 

Cir. 2006). 

58. Luminant Generation v. EPA, 714 F.3d 

841 (5th Cir. 2013) [EPA–HQ–OAR– 

2012–0322–0881], cert. denied, 134 S. 

Ct. 387 (2013). 

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59. Memorandum, ‘‘Additional Clarification 

Regarding Application of Appendix W 

Modeling Guidance for the 1-hour NO2

National Ambient Air Quality Standard,’’ 

from T. Fox, EPA/OAQPS, to Regional 

Air Division Directors, March 1, 2011. 

60. Memorandum, ‘‘Estimate of Potential 

Direct Costs of SSM SIP Calls to Air 

Agencies,’’ April 28, 2015. 

61. Memorandum, ‘‘Guidance on 

Infrastructure State Implementation Plan 

(SIP) Elements under Clean Air Act 

Section 110(a)(1) and 110(a)(2),’’ from 

Stephen D. Page, Director, OAQPS, to 

Regional Air Directors, Regions 1–10, 

September 13, 2013. 

62. Memorandum, ‘‘Statutory, Regulatory, 

and Policy Context for this Rulemaking,’’ 

February 4, 2013, EPA–HQ–OAR–2012– 

0322–0029 (Background Memorandum). 

63. Mich. Dep’t of Envtl. Quality v. Browner, 

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

64. Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 

2000). 

65. Mid-Tex Elec. Co-op, Inc. v. FERC, 773 

F.2d 327 (D.C. Cir. 1985). 

66. Montana Sulphur & Chemical Co. v. EPA, 

666 F.3d 1174 (9th Cir. 2012) [EPA–HQ– 

OAR–2012–0322–0032], cert. denied, 

133 S. Ct. 409 (2012). 

67. Motor Vehicle Mfrs Ass’n v. State Farm 

Mut. Auto Ins. Co., 463 U.S. 29 (1983). 

68. ‘‘National Emission Standards for 

Hazardous Air Pollutants for Major 

Sources: Industrial, Commercial, and 

Institutional Boilers and Process Heaters; 

Proposed rule,’’ 80 FR 3089 (January 21, 

2015). 

69. ‘‘National Emission Standards for 

Hazardous Air Pollutants Residual Risk 

and Technology Review for Flexible 

Polyurethane Foam Production; Final 

rule,’’ 79 FR 48073 (August 15, 2014). 

70. ‘‘National Emission Standards for 

Hazardous Air Pollutants: Generic 

Maximum Achievable Control 

Technology Standards; and Manufacture 

of Amino/Phenolic Resins; Final rule,’’ 

79 FR 60897 (October 8, 2014). 

71. Nat’l Cable & Telecomms. Ass’n v. Brand 

X Internet Servs., 545 U.S. 967 (2005). 

72. Nat’l Gypsum v. EPA, 968 F.2d 40 (D.C. 

Cir. 1992). 

73. New Hampshire v. Maine, 532 U.S. 742 

(2011). 

74. North Dakota v. EPA, 730 F.3d 750 (8th 

Cir. 2013), cert. denied, 134 S. Ct. 2662 

(2014). 

75. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 

2014), EPA–HQ–OAR–2012–0322–0885. 

76. Oklahoma v. EPA, 723 F.3d 1201 (10th 

Cir. 2013), cert. denied, 134 S. Ct. 2662 

(2014). 

77. ‘‘Oil and Natural Gas Sector: 

Reconsideration of Additional Provisions 

of New Source Performance Standards; 

Final rule,’’ 79 FR 79017 (December 31, 

2014). 

78. ‘‘Oil and Natural Gas Sector: 

Reconsideration of Additional Provisions 

of New Source Performance Standards; 

Proposed rule,’’ 79 FR 41752 (July 17, 

2014). 

79. Omnipoint Corp. v. Fed. Commc’ns 

Comm’n, 78 F.3d 620 (D.C. Cir. 1996). 

80. Petition (‘‘Petition to Find Inadequate and 

Correct Several State Implementation 

Plans under Section 110 of the Clean Air 

Act Due to Startup, Shutdown, 

Malfunction, and/or Maintenance 

Provisions,’’ on behalf of Sierra Club, 

dated June 30, 2011), EPA–HQ–OAR– 

2012–0322–0003. 

81. ‘‘Proposed Settlement Agreement, Clean 

Air Act Citizen Suit,’’ 76 FR 54465 

(September 1, 2011). 

82. ‘‘Requirements for Preparation, Adoption, 

and Submittal of Implementation Plans; 

Approval and Promulgation of 

Implementation Plans; Final rules,’’ 45 

FR 52676 (August 7, 1980). 

83. ‘‘Standards of Performance for FossilFuel-Fired Steam Generators for Which 

Construction Is Commenced After 

August 17, 1971; Standards of 

Performance for Electric Utility Steam 

Generating Units for Which Construction 

Is Commenced After September 18, 1978; 

Standards of Performance for IndustrialCommercial-Institutional Steam 

Generating Units; and Standards of 

Performance for Small IndustrialCommercial-Institutional Steam 

Generating Units; Final rule,’’ 74 FR 

5072 (January 28, 2009). 

84. S. Rep No. 91–1196 (1970). 

85. ‘‘Selection of Sequence of Mandatory 

Sanctions for Findings Made Pursuant to 

Section 179 of the Clean Air Act,’’ 59 FR 

39832 (August 4, 1994), EPA–HQ–OAR– 

2012–0322–0033, codified at 40 CFR 

52.31. 

86. Settlement Agreement executed 

November 30, 2011, to address a lawsuit 

filed by Sierra Club and WildEarth 

Guardians in the United States District 

Court for the Northern District of 

California, in Sierra Club et al. v. 

Jackson, No. 3:10–cv–04060–CRB (N.D. 

Cal.), EPA–HQ–OAR–2012–0322–0039. 

87. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 

2004). 

88. Sierra Club v. Georgia Power Co., 443 

F.3d 1346 (11th Cir. 2006). 

89. Sierra Club v. Johnson, 551 F.3d 1019 

(D.C. Cir. 2008), EPA–HQ–OAR–2012– 

0322–0048. 

90. Sierra Club v. Pub. Serv. Co. of Colorado, 

Inc., 894 F.Supp. 1455 (D. Colo. 1995). 

91. SNPR (‘‘State Implementation Plans: 

Response to Petition for Rulemaking; 

Findings of Substantial Inadequacy; and 

SIP Calls To Amend Provisions Applying 

to Excess Emissions During Periods of 

Startup, Shutdown and Malfunction; 

Supplemental Proposal To Address 

Affirmative Defense Provisions in States 

Included in the Petition for Rulemaking 

and in Additional States; Supplemental 

notice of proposed rulemaking,’’ 79 FR 

55919, September 17, 2014), EPA–HQ– 

OAR–2012–0322–0909. 

92. Southwestern Pennsylvania Growth 

Alliance v. EPA, 114 F.3d 984 (6th Cir. 

1998). 

93. State Farm Mut. Auto Ins. Co. v. 

Campbell, 538 U.S. 408 (2003). 

94. ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Findings of 

Substantial Inadequacy; and SIP Calls To 

Amend Provisions Applying to Excess 

Emissions During Periods of Startup, 

Shutdown, and Malfunction; Notice of 

extension of public comment period,’’ 78 

FR 20855 (April 8, 2013), EPA–HQ– 

OAR–2012–0322–0126. 

95. ‘‘State Implementation Plans; General 

Preamble for the Implementation of Title 

I of the Clean Air Act Amendments of 

1990,’’ 57 FR 13498 (April 16, 1992). 

96. Tex Tin Corp. v. EPA, 992 F.2d 353 (D.C. 

Cir. 1993). 

97. Texas v. EPA, No. 10–60961, 2011 WL 

710498 (5th Cir. Feb. 24, 2011). 

98. Train v. NRDC, 421 U.S. 60 (1975). 

99. U.S. v. Ford Motor Co., 736 F.Supp. 1539 

(W.D. Mo. 1990). 

100. U.S. v. General Motors Corp., 702 

F.Supp. 133 (N.D. Texas 1988). 

101. Union Elec. Co. v. EPA, 427 U.S. 246 

(1976). 

102. US Magnesium, LLC v. EPA, 690 F.3d 

1157 (10th Cir. 2012), EPA–HQ–OAR– 

2012–0322–0031. 

103. Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 

1997). 

104. Wall v. EPA, 265 F.3d 426 (6th Cir. 

2001). 

105. Wyo. Outdoor Council v. U.S. Forest 

Serv., 165 F.3d 43 (D.C. Cir. 1999). 

XIV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a ‘‘significant regulatory 

action’’ that was submitted to the Office 

of Management and Budget (OMB) for 

review because it raises novel legal or 

policy issues. Any changes made in 

response to OMB recommendations 

have been documented in the docket. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. This action merely reiterates the 

EPA’s interpretation of the statutory 

requirements of the CAA and does not 

require states to collect any additional 

information. Through the SIP calls 

issued to certain states as part of this 

action under CAA section 110(k)(5), the 

EPA is only requiring each affected state 

to revise its SIP to comply with existing 

requirements of the CAA. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. Any agency 

may certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden or otherwise has a 

positive economic effect on the small 

entities subject to this rule. This action 

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / Rules and Regulations 33985 

will not impose any requirements on 

small entities. Instead, the action merely 

reiterates the EPA’s interpretation of the 

statutory requirements of the CAA. 

Through the SIP calls issued to certain 

states as part of this SIP call action 

under CAA section 110(k)(5), the EPA is 

only requiring each affected state to 

revise its SIP to comply with existing 

requirements of the CAA. The EPA’s 

action therefore leaves to each affected 

state the choice as to how to revise the 

SIP provision in question to make it 

consistent with CAA requirements and 

to determine, among other things, which 

of the several lawful approaches to the 

treatment of excess emissions during 

SSM events will be applied to particular 

sources. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

federal mandate as described in UMRA, 

2 U.S.C. 1531–1538, and does not 

significantly or uniquely affect small 

governments. The action imposes no 

new enforceable duty on any state, local 

or tribal governments or the private 

sector. The regulatory requirements of 

this action apply to certain states for 

which the EPA is issuing a SIP call. To 

the extent that such affected states allow 

local air districts or planning 

organizations to implement portions of 

the state’s obligation under the CAA, the 

regulatory requirements of this action 

do not significantly or uniquely affect 

small governments because those 

governments have already undertaken 

the obligation to comply with the CAA. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. In this action, the EPA is 

not addressing any tribal 

implementation plans. This action is 

limited to states. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because, in prescribing the EPA’s action 

for states regarding their obligations for 

SIPs under the CAA, it implements 

specific standards established by 

Congress in statutes. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution or use of energy. 

This action merely prescribes the EPA’s 

action for states regarding their 

obligations for SIPs under the CAA. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. The action is intended to 

ensure that all communities and 

populations across the affected states, 

including minority, low-income and 

indigenous populations overburdened 

by pollution, receive the full human 

health and environmental protection 

provided by the CAA. This action 

concerns states’ obligations regarding 

the treatment they give, in rules 

included in their SIPs under the CAA, 

to excess emissions during startup, 

shutdown and malfunctions. This action 

requires that certain states bring their 

treatment of these emissions into line 

with CAA requirements, which will 

lead to certain sources’ having greater 

incentives to control emissions during 

such events. 

K. Determination Under Section 307(d) 

Pursuant to CAA section 307(d)(1)(V), 

the Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d) 

establishes procedural requirements 

specific to rulemaking under the CAA. 

Section 307(d)(1)(V) provides that the 

provisions of section 307(d) apply to 

‘‘such other actions as the Administrator 

may determine.’’ 

L. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

XV. Judicial Review 

The Administrator determines that 

this action is ‘‘nationally applicable’’ 

within the meaning of section 307(b)(1) 

of the CAA. This action in scope and 

effect extends to numerous judicial 

circuits because the action on the 

Petition extends to states throughout the 

country. In these circumstances, section 

307(b)(1) and its legislative history 

authorize the Administrator to find the 

action to be of ‘‘nationwide scope or 

effect’’ and thus to indicate the venue 

for challenges to be in the D.C Circuit. 

Thus, any petitions for review must be 

filed in the U.S. Court of Appeals for the 

District of Columbia Circuit. 

In addition, pursuant to CAA section 

307(d)(1)(V), the EPA is determining 

that this rulemaking action is subject to 

the requirements of section 307(d), 

which establish procedural 

requirements specific to rulemaking 

under the CAA. In the event there is a 

judicial challenge to this action and a 

court determines that the EPA has erred 

with respect to any portion of this 

action, the EPA intends the components 

of this action to be severable. 

XVI. Statutory Authority 

The statutory authority for this action 

is provided by CAA section 101 et seq. 

(42 U.S.C. 7401 et seq.). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Affirmative 

defense, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, 

Carbon monoxide, Excess emissions, 

Greenhouse gases, Hydrofluorocarbons, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Methane, Nitrogen dioxide, Nitrous 

oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and 

recordkeeping requirements, Startup, 

shutdown and malfunction, State 

implementation plan, Sulfur 

hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

Dated: May 22, 2015. 

Gina McCarthy, 

Administrator. 

[FR Doc. 2015–12905 Filed 6–11–15; 8:45 am] 

BILLING CODE 6560–50–P 

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