Vol. 78 Friday, 

No. 36 February 22, 2013 

Part III 

Environmental Protection Agency 

40 CFR Part 52 

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 


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12460 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2012–0322; FRL–9782–2] 

RIN 2060–AR68 

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 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to take 

action on a petition for rulemaking filed 

by the Sierra Club with the EPA 

Administrator on June 30, 2011 (the 

Petition). The Petition includes 

interrelated requests concerning the 

treatment of excess emissions in state 

rules by sources during periods of 

startup, shutdown, or malfunction 

(SSM). The EPA is proposing to grant in 

part and to deny in part the request in 

the Petition to rescind its policy 

interpreting the Clean Air Act (CAA) to 

allow states to have appropriately 

drawn state implementation plan (SIP) 

provisions that provide affirmative 

defenses to monetary penalties for 

violations during periods of SSM. The 

EPA is also proposing either to grant or 

to deny the Petition with respect to the 

specific existing SIP provisions related 

to SSM in each of 39 states identified by 

the Petitioner as inconsistent with the 

CAA. Further, for each of those states 

where the EPA proposes to grant the 

Petition concerning specific provisions, 

the EPA also proposes to find that the 

existing SIP provision is substantially 

inadequate to meet CAA requirements 

and thus under CAA authority proposes 

a ‘‘SIP call.’’ For those states for which 

the EPA proposes a SIP call, the EPA 

also proposes a schedule for the states 

to submit a corrective SIP revision. 

Finally, the EPA is also proposing to 

deny the request in the Petition that the 

EPA discontinue reliance on 

interpretive letters from states to clarify 

any potential ambiguity in SIP 

submissions, even in circumstances 

where the EPA may determine that this 

approach is appropriate and has 

adequately documented that approach 

in a rulemaking action. This action 

reflects the EPA’s current SSM Policy 

for SIPs. 

DATES: Comments. Comments must be 

received on or before March 25, 2013. 

Public Hearing. If anyone contacts the 

EPA requesting a public hearing by 

March 11, 2013, we will hold a public 

hearing on March 12, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2012–0322, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• Email: a-and-r-docket@epa.gov. 

• Fax: (202) 566–9744. 

• Mail: Attention Docket ID No. EPA– 

HQ–OAR–2012–0322, U.S. 

Environmental Protection Agency, EPA 

West (Air Docket), 1200 Pennsylvania 

Avenue NW., Mail Code: 6102T, 

Washington, DC 20460. Please include a 

total of two copies. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA West (Air 

Docket), 1301 Constitution Avenue 

Northwest, Room 3334, Washington, DC 

20004, Attention Docket ID No. EPA– 

HQ–OAR–2012–0322. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2012– 

0322. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any CD you submit. 

If the EPA cannot read your comment 

due to technical difficulties and cannot 

contact you for clarification, the EPA 

may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, avoid any 

form of encryption, and be free of any 

defects or viruses. For additional 

information about the EPA’s public 

docket visit the EPA Docket Center 

homepage at www.epa.gov/epahome/ 

dockets.htm. For additional instructions 

on submitting comments, go to section 

I.C of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket. All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI 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 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Air Docket, EPA/DC, EPA 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 Air Docket is (202) 566– 

1742. 

Public Hearing: If a public hearing is 

held, it will be held on March 12, 2013, 

at the EPA Ariel Rios East building, 

Room 1153, 1301 Constitution Avenue, 

Washington, DC 20460. The public 

hearing will convene at 9 a.m. (Eastern 

Standard Time) and continue until the 

later of 6 p.m. or 1 hour after the last 

registered speaker has spoken. People 

interested in presenting oral testimony 

or inquiring as to whether a hearing is 

to be held should contact Ms. Pamela 

Long, Air Quality Planning Division, 

Office of Air Quality Planning and 

Standards (C504–01), U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC 27711, 

telephone (919) 541–0641, fax number 

(919) 541–5509, email address 

long.pam@epa.gov, at least 5 days in 

advance of the public hearing (see 

DATES). People interested in attending 

the public hearing must also call Ms. 

Long to verify the time, date, and 

location of the hearing. The public 

hearing will provide interested parties 

the opportunity to present data, views, 

or arguments concerning the proposed 

action. The EPA will make every effort 

to accommodate all speakers who arrive 

and register. A lunch break is scheduled 

from 12:30 p.m. until 2 p.m. Because 

this hearing is being held at U.S. 

government facilities, individuals 

planning to attend the hearing should be 

prepared to show valid picture 

identification to the security staff in 

order to gain access to the meeting 

room. In addition, you will need to 


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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, we 

refer 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. The EPA notes that the petition under 

evaluation does not identify any specific provisions 

related to tribal implementation plans. We therefore 

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

or ‘‘air agencies’’ when meaning to refer to one, 

some, or all of the 39 states identified in the 

Petition. We also use ‘‘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. 

obtain a property pass for any personal 

belongings you bring with you. Upon 

leaving the building, you will be 

required to return this property pass to 

the security desk. No large signs will be 

allowed in the building, cameras may 

only be used outside of the building, 

and demonstrations will not be allowed 

on federal property for security reasons. 

The EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral comments 

and supporting information presented at 

the public hearing. If a hearing is held 

on March 12, 2013, written comments 

on the proposed rule must be 

postmarked by April 11, 2013. 

Commenters should notify Ms. Long if 

they will need specific equipment, or if 

there are other special needs related to 

providing comments at the hearing. The 

EPA will provide equipment for 

commenters to show overhead slides or 

make computerized slide presentations 

if we receive special requests in 

advance. Oral testimony will be limited 

to 5 minutes for each commenter. The 

EPA encourages commenters to provide 

the EPA with a copy of their oral 

testimony electronically (via email or 

CD) or in hard copy form. The hearing 

schedule, including lists of speakers, 

will be posted on the EPA’s Web site at 

www.epa.gov/air/urbanair/sipstatus/. 

Verbatim transcripts of the hearings and 

written statements will be included in 

the docket for the rulemaking. The EPA 

will make every effort to follow the 

schedule as closely as possible on the 

day of the hearing; however, please plan 

for the hearing to run either ahead of 

schedule or behind schedule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning the 

public hearing, please contact Ms. 

Pamela Long, U.S. Environmental 

Protection Agency, Office of Air Quality 

Planning and Standards, Air Quality 

Planning Division, (C504–01), Research 

Triangle Park, NC 27711, telephone 

(919) 541–0641, fax number (919) 541– 

5509, email address: long.pam@epa.gov 

(preferred method for registering). 

Questions concerning this proposed rule 

should be addressed to 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 at 

sutton.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

questions related to a specific SIP, 

please contact the appropriate EPA 

Regional Office: 

EPA 

regional 

office 

Contact for regional office (person, mailing address, telephone 

No.) 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 ................ Paul Truchan, EPA Region 2, 290 Broadway, 25th Floor, New 

York, NY 10007–1866, (212) 637–3711.

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

III ............... Harold Frankford, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103–2029, (215) 814–2108.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 ................ Christos Panos, Air and Radiation Division (AR–18J), EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604– 

3507, (312) 353–8328.

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, (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, Office of Partnership and Regulatory Assistance, EPA Region 8, 

1595 Wynkoop Street, Denver, CO 80202–1129, (303) 312– 

7104.

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

Wyoming. 

IX ............... Lisa Tharp, EPA Region 9, Air Division, 75 Hawthorne Street 

(AIR–8), San Francisco, CA 94105, (415) 947–4142.

Arizona; California; Hawaii and the Pacific Islands; Indian Country within Region 9 and Nevada. 

X ................ Donna Deneen, Environmental Engineer, Office of Air, Waste 

and Toxics (AWT–107), EPA Region 10, 1200 Sixth Avenue, 

Suite 900, Seattle, WA 98101, (206) 553–6706.

Alaska, Idaho, Oregon, and Washington. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

rule include states, U.S. territories, local 

authorities, and eligible tribes that are 

currently administering, or may in the 

future administer, the EPA-approved 

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

The EPA’s action on the Petition is 

potentially of interest to all such entities 

because the EPA is evaluating issues 

related to basic CAA requirements for 

SIPs. 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 

addition, the EPA may find specific SIP 


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provisions in states identified in the 

Petition to be substantially inadequate 

to meet CAA requirements, pursuant to 

CAA section 110(k)(5), and thus those 

states will potentially be affected by this 

rulemaking directly. For example, if a 

state’s existing SIP provision allows an 

automatic exemption for excess 

emissions during periods of startup, 

shutdown, or malfunction, such that 

these excess emissions do not constitute 

a violation of the otherwise applicable 

emission limitations of the SIP, then the 

EPA may determine that the SIP 

provision is substantially inadequate 

because the provision is inconsistent 

with fundamental requirements of the 

CAA. This rule may also be of interest 

to the public and to owners and 

operators of industrial facilities that are 

subject to emission limits in SIPs, 

because it may require changes to state 

rules covering excess emissions. When 

finalized, this action will embody the 

EPA’s updated SSM Policy 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 

proposal notice will also be available on 

the World Wide Web. Following 

signature by the EPA Assistant 

Administrator, a copy of this notice will 

be posted on the EPA’s Web site, under 

SSM SIP Call 2013, at www.epa.gov/air/ 

urbanair/sipstatus. In addition to this 

notice, other relevant documents are 

located in the docket, including a copy 

of the Petition and copies of each of the 

four guidance documents pertaining to 

excess emissions issued by the EPA in 

1982, 1983, 1999, and 2001, which are 

discussed in more detail later in this 

proposal notice. 

C. What should I consider as I prepare 

my comments? 

1. Submitting CBI. Do not submit this 

information to the EPA through 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in CD that you mail to the 

EPA, mark the outside of the CD as CBI 

and then identify electronically within 

the CD the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2012–0322. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date, and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

D. 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. What should I consider as I prepare my 

comments? 

D. How is the preamble organized? 

E. What is the meaning of key terms used 

in this notice? 

II. Overview of Proposed Rule 

A. How is the EPA proposing to respond 

to the Petition? 

B. What did the Petitioner request? 

C. To which air agencies does this 

proposed rulemaking apply and why? 

D. What is the EPA proposing for any state 

that receives 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 happens in an affected state 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. Proposed Action in Response to Request 

To Rescind the EPA Policy Interpreting 

the CAA To Allow Appropriate 

Affirmative Defense Provisions 

A. Petitioner’s Request 

B. The EPA’s Response 

V. Proposed Action in Response to Request 

for the EPA’s Review of Specific Existing 

SIP Provisions for Consistency With 

CAA Requirements 

A. Petitioner’s Request 

B. The EPA’s Response 

VI. Proposed 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. Petitioner’s Request 

B. The EPA’s Response 

VII. Clarifications, Reiterations, and 

Revisions to the EPA’s SSM Policy 

A. Applicability of Emission Limitations 

During Periods of Startup and Shutdown 

B. Affirmative Defense Provisions During 

Periods of Malfunction 

C. Affirmative Defense Provisions During 

Periods of Startup and Shutdown 

D. Relationship Between SIP Provisions 

and Title V Regulations 

E. 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 

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 Deficient 

Affirmative Defense Provisions 

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

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

IX. What is the EPA proposing for each of the 

specific SIP provisions identified in the 

Petition? 

A. Overview of the EPA’s Evaluation of 

Specific SIP Provisions 

1. Automatic Exemption Provisions 

2. Director’s Discretion Exemption 

Provisions 

3. State-Only Enforcement Discretion 

Provisions 

4. Adequacy of Affirmative Defense 

Provisions 

5. Affirmative Defense Provisions 

Applicable to a ‘‘Source or Small Group 

of Sources’’ 

B. Affected States in EPA Region I 

1. Maine 

2. New Hampshire 

3. Rhode Island 

C. Affected States in EPA Region II 

1. New Jersey 

2. [Reserved] 

D. Affected States in EPA Region III 

1. Delaware 

2. District of Columbia 

3. Virginia 

4. West Virginia 

E. Affected States and Local Jurisdictions 

in EPA Region IV 

1. Alabama 


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2. Florida 

3. Georgia 

4. Kentucky 

5. Kentucky: Jefferson County 

6. Mississippi 

7. North Carolina 

8. North Carolina: Forsyth County 

9. South Carolina 

10. Tennessee 

11. Tennessee: Knox County 

12. Tennessee: Shelby County 

F. Affected States in EPA Region V 

1. Illinois 

2. Indiana 

3. Michigan 

4. Minnesota 

5. Ohio 

G. Affected States in EPA Region VI 

1. Arkansas 

2. Louisiana 

3. New Mexico 

4. Oklahoma 

H. Affected States in EPA Region VII 

1. Iowa 

2. Kansas 

3. Missouri 

4. Nebraska 

5. Nebraska: Lincoln-Lancaster 

I. Affected States in EPA Region VIII 

1. Colorado 

2. Montana 

3. North Dakota 

4. South Dakota 

5. Wyoming 

J. Affected States and Local Jurisdictions in 

EPA Region IX 

1. Arizona 

2. Arizona: Maricopa County 

3. Arizona: Pima County 

K. Affected States in EPA Region X 

1. Alaska 

2. Idaho 

3. Oregon 

4. Washington 

X. 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 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

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 

J. Executive Order 12898—Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

L. Judicial Review 

XI. Statutory Authority 

E. What is the meaning of key terms 

used in this notice? 

For the purpose of this notice, the 

following definitions apply unless the 

context indicates otherwise: 

The terms Act or CAA 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. By demonstrating that the 

elements of an affirmative defense have 

been met, a source may avoid a civil 

penalty but cannot avoid injunctive 

relief. 

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. 

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 applicable 

emission limitations or control 

measures, or to excuse noncompliance 

with applicable emission limitations or 

control measures, in spite of SIP 

provisions that would otherwise render 

such conduct by the source a violation. 

The term EPA refers to the United 

States Environmental Protection 

Agency. 

The term excess emissions means the 

emissions of air pollutants from a source 

that exceed any applicable SIP emission 

limitations. 

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 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 shutdown means, generally, 

the cessation of operation of a source for 

any reason. 

The term SIP means or refers to a 

State Implementation Plan. Generally, 

the State Implementation Plan 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) under section 109 

for any air pollutant in each air quality 

control region (or portion thereof) 

within a state. In some parts of this 

notice, statements about SIPs in general 

also apply to tribal implementation 

plans in general even though not 

explicitly noted. 

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 SSM Policy refers to the 

cumulative guidance that EPA has 

issued concerning its interpretation of 

CAA requirements with respect to 

treatment of excess emissions during 

periods of startup, shutdown, and 

malfunction at a source. The most 

comprehensive statement of the EPA’s 

SSM Policy prior to this proposed 

rulemaking is embodied in a 1999 

guidance document discussed in more 

detail in this proposal. When finalized, 

this action will embody the EPA’s 

updated SSM Policy for SIP provisions 

relevant to excess emissions during 

SSM events. 

The term startup means, generally, 

the setting in operation of a source for 

any reason. 

II. Overview of Proposed Rule 

A. How is the EPA proposing to respond 

to the Petition? 

The EPA is proposing to take action 

on a petition for rulemaking that the 

Sierra Club (the Petitioner) filed with 

the EPA Administrator on June 30, 2011 

(the Petition). The Petition concerns 

how air agency rules in EPA-approved 

SIPs treat excess emissions during 

periods of startup, shutdown, or 

malfunction of industrial process or 

emission control equipment. Many of 

these rules were added to SIPs and 


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2The term ‘‘impermissible provision’’ as used 

throughout this notice is generally intended to refer 

to a SIP provision identified by the Petitioner that 

the EPA believes to be inconsistent with 

requirements of the CAA. As described later in this 

notice (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. 

3See, Settlement Agreement executed Nov. 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: Sierra 

Club et al. v. Jackson, No. 3:10-cv-04060–CRB (N.D. 

Cal.). 

4See, Memorandum, ‘‘Statutory, Regulatory, and 

Policy Context for this Rulemaking,’’ Feb. 4, 2013. 

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 normal operation 

could in some cases not be met with the 

same emission control strategies during 

periods of startup, shutdown, 

maintenance, or malfunction. 

Accordingly, it was common for state 

plans to include provisions for special, 

more lenient treatment of excess 

emissions during such periods. Many of 

these provisions took the form of 

absolute or conditional statements that 

excess emissions from a source, when 

they occur outside of the source’s 

normal operations, were not to be 

considered violations of the air agency 

rules, i.e., exemptions. 

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 looselydefined 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. The EPA also realized that 

such provisions allow opportunities for 

sources to repeatedly emit pollutants 

during such periods in quantities that 

could cause unacceptable air pollution 

in nearby communities with no legal 

pathway for air agencies, the EPA, or the 

courts to require the sources to make 

reasonable efforts to reduce these 

emissions. The EPA has been more 

careful after 1977 not to give new 

approval to SIP rules that are 

inconsistent with the CAA and has 

issued several guidance memoranda to 

advise states on how to avoid 

impermissible provisions 2 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 priority work facing 

both air agencies and the EPA, the EPA 

has not to date initiated a broad effort 

to get all states to remove impermissible 

provisions from their SIPs and to adopt 

other, approvable approaches for 

addressing excess emissions when 

appropriate. 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 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.3

As alluded to earlier in this notice, 

there are available CAA-consistent 

approaches that can be incorporated 

into SIPs to address excess 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 and appropriately defined 

affirmative defenses. In this action, the 

EPA is articulating a policy that reflects 

this principle and is reviewing the SIPs 

from 39 states to determine whether 

specific provisions identified in the 

Petition are consistent with the EPA’s 

SSM Policy and the CAA. In some cases, 

this review involves a close reading of 

the provision in the SIP and its context 

to discern whether it is in fact an 

exemption, a statement regarding 

enforcement discretion by the air 

agency, or an affirmative defense. Each 

state will ultimately decide how to 

address any SIP inadequacies identified 

by the EPA once the EPA takes final 

action. Recognizing that for some states, 

the EPA’s response to this Petition 

entails reviewing SIP provisions that 

may date back several decades, the EPA 

will work closely with each of the 

affected states to develop approvable 

SIPs consistent with the guidance 

articulated in the final action. Section 

IX of this notice presents the EPA’s 

analysis of each SIP provision at issue. 

The EPA’s review also hinges on 

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, 

this action provides the EPA an 

opportunity to invite public comment 

on this SSM Policy and its basis in the 

CAA. To that end, this notice contains 

a detailed clarifying explanation of the 

SSM Policy (including proposed 

revisions to it). Also, supplementary to 

this notice, the EPA is providing a 

memorandum to summarize the legal 

and administrative context for the 

proposed action, and the EPA invites 

public comment on the memorandum, 

which is available in the docket for this 

rulemaking.4 This notice, and the final 

notice for this action after considering 

public comment, will also clarify for the 

affected states how they can resolve the 

identified deficiencies in their SIPs, as 

well as provide all air agencies guidance 

and model language as they further 

develop their SIPs in the future. 

In summary, the EPA proposes to 

agree with the Petitioner that many of 

the identified SIP provisions are not 

permissible under the CAA. However, 

in several cases we are proposing to find 

that an identified SIP provision is 

actually one of the permissible 

approaches. Of the 39 states covered by 

the Petition, the EPA is proposing to 

make SIP calls for 36 states. 

The EPA is aware of other SSMrelated SIP provisions that were not 

identified in the Petition but that may 

be inconsistent with the EPA’s 

interpretation of the CAA. The EPA may 

address these other provisions later in a 

separate notice-and-comment action. 

B. What did the Petitioner request? 

The Petition includes three 

interrelated requests concerning the 

treatment in SIPs of excess emissions by 

sources during periods of startup, 

shutdown, or malfunction. 

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, 

startup, or shutdown. Further, the 

Petitioner requested that the EPA issue 

a SIP call requiring states to eliminate 


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5The term ‘‘substantially inadequate’’ is used in 

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

of this notice. 

all such affirmative defense provisions 

in existing SIPs. As explained later in 

this proposal, the EPA is proposing to 

grant in part and to deny in part this 

request. The EPA does not agree with 

the Petitioner that appropriately drawn 

affirmative defense provisions for 

violations due to excess emissions that 

result from malfunctions are contrary to 

the CAA, and thus the EPA is proposing 

to deny the request to revise its 

interpretation of the CAA concerning 

affirmative defenses for malfunctions. 

However, the EPA is proposing to revise 

its SSM Policy with respect to 

affirmative defenses for violations due 

to excess emissions that occur during 

startup and shutdown, in order to 

distinguish between planned events that 

are within the source’s control and 

unplanned events that are not. The EPA 

believes that SIP provisions should 

encourage compliance during events 

that are within the source’s control, and 

thus affirmative defenses for excess 

emissions during planned startup and 

shutdown are inappropriate, unlike 

those for excess emissions during 

malfunctions. 

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 

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 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 proposal, the EPA 

agrees with the Petitioner that some of 

these existing SIP provisions are legally 

impermissible and thus proposes to find 

such provisions ‘‘substantially 

inadequate’’ 5 to meet CAA 

requirements. Among the reasons for 

EPA’s proposed action is to eliminate 

provisions that interfere with 

enforcement in a manner prohibited by 

the CAA. Simultaneously, the EPA 

proposes to issue a SIP call to the states 

in question requesting corrective SIP 

submissions to revise their SIPs 

accordingly. For the remainder of the 

identified provisions, however, the EPA 

disagrees with the contentions of the 

Petitioner and thus proposes to deny the 

Petition with respect to those provisions 

and to take no further action. The EPA’s 

action 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 

startup, shutdown, or malfunction. The 

majority of the SIP calls that EPA is 

proposing in this action implement the 

EPA’s longstanding interpretation of the 

CAA through multiple iterations of its 

SSM Policy. In a few instances, 

however, the EPA is also proposing a 

SIP call to address the issue of 

affirmative defenses during periods of 

planned startup and shutdown, because 

the EPA is revising its prior 

interpretation of the CAA to distinguish 

between violations due to excess 

emissions that occur during 

malfunctions and violations due to 

excess emissions that occur during 

planned startup and shutdown, which 

are modes of normal source operation. 

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. Thus, the EPA is proposing 

to deny 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. 

The EPA solicits comment on its 

proposed response to the overarching 

issues in the Petition, and in particular 

on its proposed action with respect to 

each of the specific existing SIP 

provisions identified in the Petition as 

inconsistent with the requirements of 

the CAA. Through this action on the 

Petition, the EPA is clarifying, restating, 

and revising its SSM Policy. When 

finalized, this action will embody the 

EPA’s updated SSM Policy for SIP 

provisions relevant to excess emissions 

during SSM events. 

C. To which air agencies does this 

proposed rulemaking apply and why? 

In general, the proposal 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 

startup, shutdown, and malfunction. For 

example, the EPA is denying the 

Petitioner’s request that the EPA rescind 

its interpretation of the CAA to allow 

appropriately drawn affirmative defense 

provisions applicable to malfunctions, 

as explained in EPA guidance 

documents on this topic. The EPA is 

clarifying or revising its prior guidance 

with respect to several issues 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 revising its prior guidance 

concerning whether the CAA allows 

affirmative defense provisions that 

apply during periods of planned startup 

and shutdown. This proposal also 

addresses the use of interpretive letters 

for purposes of EPA action on SIPs. 

In addition, the proposal is directly 

relevant to the states with SIP 

provisions identified in the Petition that 

the Petitioner alleges are inconsistent 

with CAA requirements or with the 

EPA’s guidance concerning SIP 

provisions relevant to excess emissions. 

The EPA is proposing either to grant 

or to deny 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 (comprising 46 

state and local authorities and no tribal 

authorities) are listed in table 1, ‘‘List of 

States with SIP Provisions for Which the 

EPA Proposes Either to Grant or to Deny 

the Petition, in Whole or in Part.’’ After 

evaluating the Petition, the EPA is 

proposing to grant the petition with 

respect to one or more provisions in 36 

states of the 39 states listed, and these 

are the states for which the proposed 

action on petition, according to table 1, 

is either ‘‘Grant’’ or ‘‘Partially grant, 

partially deny.’’ Conversely, the EPA is 

proposing to deny the petition with 

respect to all provisions that the 

Petitioner identified in 3 of the 39 

states, and these (Idaho, Nebraska, and 


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12466 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

Oregon) are the states for which the 

proposed action on petition, according 

to table 1, is ‘‘Deny.’’ 

For each of the states for which the 

EPA proposes to grant or partially to 

grant the Petition, the EPA proposes to 

find that one or more particular 

provisions in the state’s existing SIP 

identified by the Petitioner are 

substantially inadequate to meet the 

requirements of the CAA. Thus, the EPA 

also proposes to promulgate a SIP call 

to each of those states, requiring the 

state to correct those particular SIP 

provisions, in accordance with the SIP 

call process of CAA section 110(k)(5). 

The SIP calls apply only to those 

specific provisions, and the scope of 

each of the SIP calls is limited to those 

provisions. 

For each of the states for which the 

EPA proposes to deny or to partially 

deny the Petition, the EPA proposes to 

find that particular provisions in the 

existing SIP identified by the Petitioner 

are consistent with the requirements of 

the CAA and thus not substantially 

inadequate to meet the requirements 

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

Thus, the EPA proposes to take no 

action with respect to those states for 

those particular SIP provisions. 

TABLE 1—LIST OF STATES WITH SIP PROVISIONS FOR WHICH THE EPA PROPOSES EITHER TO GRANT OR TO DENY THE

PETITION, IN WHOLE OR IN PART

EPA region State Proposed action on petition 

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

New Hampshire ......................................................................................................... Partially grant, partially 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 .................................................................................................................... Grant. 

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

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

North Dakota ............................................................................................................. Grant.

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

Wyoming .................................................................................................................... Grant. 

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

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

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

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

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

For each state for which the proposed 

action on the Petition is either ‘‘Grant’’ 

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

EPA proposes to find 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 startup, shutdown, 

and malfunction. The EPA believes that 

certain specific provisions in these SIPs 

fail to meet fundamental statutory 

requirements intended to protect the 

NAAQS, prevention of significant 

deterioration (PSD) increments, and 

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 proposed 

action on the Petition is either ‘‘Grant’’ 

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

EPA is also proposing in this 

rulemaking to call for a SIP revision as 

necessary to correct the identified 

provisions. The SIP revisions that the 

EPA is proposing to require 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 purport to bar 

enforcement by the EPA or through a 

citizen suit, and affirmative defense 

provisions that are inconsistent with 


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CAA requirements. A corrective SIP 

revision addressing automatic or 

impermissible discretionary exemptions 

will ensure that excess emissions during 

periods of startup, shutdown, and 

malfunction 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 rectify deficiencies in 

affirmative defense provisions will 

assure that such defenses are only 

available when sources have met the 

criteria that justify their being shielded 

from monetary penalties in an 

enforcement action. The particular 

provisions for which the EPA is 

requiring SIP revisions are summarized 

in section IX of this notice. 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. 

D. What is the EPA proposing for any 

state that receives a finding of 

substantial inadequacy and a SIP call? 

If the EPA finalizes a finding of 

substantial inadequacy and issues a SIP 

call for any state, the EPA’s final action 

will establish a deadline by which the 

state must make a SIP submission to 

rectify the deficiency. Pursuant to CAA 

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

to set a SIP submission deadline up to 

18 months from the date of the final 

finding of substantial inadequacy. 

Accordingly, the EPA is proposing that 

if it promulgates a final finding of 

substantial inadequacy and a SIP call for 

a state, the EPA will establish a date 18 

months from the date of promulgation of 

the final finding for the state to respond 

to the SIP call. If, for example, the EPA’s 

final findings are signed and 

disseminated in August 2013, then the 

SIP submission deadline for each of the 

states subject to the final SIP call would 

fall in February 2015. 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 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. 

E. What are potential impacts on 

affected states and sources? 

The issuance of a SIP call would 

require an affected state to take action 

to revise its SIP. That action by the state 

may, in turn, affect sources as described 

below. The states that would receive a 

SIP call 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 may be 

identified in a final SIP call, for example 

an automatic exemption provision, 

would have to be removed entirely and 

an affected source could no longer 

depend on the exemption to avoid all 

liability for excess emissions. Some 

other provisions, for example a 

problematic enforcement discretion 

provision or affirmative defense 

provision, could either be removed 

entirely from the SIP or retained if 

revised appropriately, 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 

discretion in its enforcement program. It 

would make the exercise of such 

discretion case-by-case in nature. 

In addition, affected states may 

choose to consider reassessing 

particular emission limitations, for 

example to determine whether those 

limits can be revised such that wellmanaged emissions during planned 

operations such as startup and 

shutdown would not exceed the revised 

emission limitation, while still 

protecting air quality. Such a revision of 

an emission limitation may need to be 

submitted as a SIP revision for EPA 

approval if the existing limit to be 

changed is already included in the SIP 

or if the existing SIP relies on the 

particular existing emission limit 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 the aspect of the existing 

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 

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 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 better 

control emissions so as to comply with 

emission limits continuously, as 

required by the CAA, or to increase 

durability of components and 

monitoring systems to detect and 

manage malfunctions promptly. If a 

state elects to have appropriately drawn 

affirmative defense provisions, however, 

such sources may not be liable for 

monetary penalties for any exceedances. 

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 the SIP calls. 

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 a SIP call has 

failed to submit a complete SIP revision 

as required by the final rule, 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. 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 

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.B of this 

notice. 

G. What happens in an affected state in 

the interim period starting when the 

EPA promulgates the final SIP call and 

ending when the EPA approves the 

required SIP revision? 

If the EPA issues a final SIP call to a 

state, that action alone will not cause 


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12468 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

6See, ‘‘Approval and Promulgation of 

Implementation Plans; Texas; Excess Emissions 

During Startup, Shutdown, Maintenance, and 

Malfunction Activities,’’ 75 FR 68989 (Nov. 10, 

2010). 

7See, ‘‘Approval and Promulgation of State 

Implementation Plans; Michigan,’’ 63 FR 8573 (Feb. 

20, 1998). 

8See, ‘‘Federal Implementation Plan for the 

Billings/Laurel, MT, Sulfur Dioxide Area,’’ 73 FR 

21418 (Apr. 21, 2008). 

9See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 76 FR 21639 (Apr. 

18, 2011). 

10See, generally, Catawba County, North Carolina 

et al. v. EPA, 571 F.3d 20, 33–35 (DC Cir. 2009) 

(upholding the EPA’s process for developing and 

applying its guidance to designations). 11Petition at 2. 12Petition at 12. 13See, Memorandum, ‘‘Statutory, Regulatory, and 

Policy Context for this Rulemaking,’’ Feb. 4, 2013. 

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 

accordance with the SIP call and the 

time that the EPA takes to evaluate and 

act upon the SIP revision 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 impact 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. However, 

given the need to resolve these 

longstanding SIP deficiencies in a 

careful and comprehensive fashion, the 

EPA believes that providing sufficient 

time for these corrections to occur will 

ultimately be the best course to ensure 

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 startup, shutdown, or 

malfunction, and to the correct 

approach to 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 startup, shutdown, and 

malfunction 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, protect 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 

SIPs 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 startup, shutdown, or 

malfunction 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; 6 (ii) 

disapproved SIP submissions that were 

not consistent with this interpretation; 7

(iii) itself promulgated regulations in 

FIPs that were consistent with this 

interpretation; 8 or (iv) issued a SIP call 

requiring a state to revise an 

impermissible SIP provision.9

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 or not a 

given SIP provision is consistent with 

the requirements of the CAA and 

applicable regulations.10

The Petition raised issues related to 

excess emissions from sources during 

periods of startup, shutdown, and 

malfunction, 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.’’ 11 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.’’ 12 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 alleged SIP 

deficiencies 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 SIPs, and of other provisions that 

interfere with effective enforcement of 

SIPs, are real-world consequences that 

adversely affect public health. 

As described earlier in this notice, the 

EPA invites public comment on a 

memorandum that supplements this 

notice and provides a more detailed 

discussion of the statutory, regulatory 

and policy background for the EPA’s 

proposed action. The memorandum can 

be found in the docket for this 

rulemaking.13

IV. Proposed Action in Response To 

Request To Rescind the EPA Policy 

Interpreting the CAA To Allow 

Appropriate Affirmative Defense 

Provisions 

A. Petitioner’s Request 

The Petitioner’s first request was for 

the EPA to rescind its SSM Policy 


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14Petition at 11. 

15 Id. 

16Petition at 12. 

17Petition at 10. 

18 Id. 

19 Id. 

20Petition at 11. 21Petition at 11. 

element interpreting the CAA to allow 

affirmative defense provisions in SIPs 

for excess emissions during SSM 

events.14 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.15 Alternatively, if 

the EPA denies these two related 

requests, the Petitioner requested 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.16

The EPA interprets this latter request to 

refer to the specific SIP provisions that 

the Petitioner identified in a separate 

section of the Petition, titled, ‘‘Analysis 

of Individual States’ SSM Provisions,’’ 

including specific existing affirmative 

defense provisions. 

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 policy. Specifically, 

the Petitioner cited to two statutory 

grounds, CAA sections 113(b) and (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. 

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.’’ 17 The 

Petitioner first argued that in any 

judicial enforcement action in the 

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 federal courts to assess monetary 

penalties for violations if a source is 

shielded from monetary penalties under 

an affirmative defense provision in the 

approved SIP.18 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.’’ 19

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.20 That 

section provides that either the 

Administrator or the court: 

* * * shall take into consideration (in 

addition to such other factors as justice may 

require) the size of the business, the 

economic impact of the penalty on the 

business, the violator’s full compliance 

history and good faith efforts to comply, the 

duration of the violation as established by 

any credible evidence (including evidence 

other than the applicable test method), 

payment by the violator of penalties 

previously assessed for the same violation, 

the economic benefit of noncompliance, and 

the seriousness of the violation. 

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. In 

particular, the Petitioner enumerated 

those factors that it alleges the EPA’s 

SSM Policy totally omits: (i) The size of 

the business; (ii) the economic impact of 

the penalty on the business; (iii) the 

violator’s full compliance history; (iv) 

the economic benefit of noncompliance; 

and (v) the seriousness of the violation. 

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.’’ 21

The Petitioner drew no distinction 

between affirmative defenses for 

unplanned events such as malfunctions 

and planned events such as startup and 

shutdown. 

B. The EPA’s Response 

The EPA has considered the concerns 

raised by the Petitioner regarding the 

legal basis under the CAA for any form 

of affirmative defense for violations due 

to excess emissions as contemplated in 

the EPA’s SSM Policy. The EPA does 

not agree with the Petitioner’s 

overarching argument that CAA section 

113 prohibits any affirmative defense 

provisions in SIPs. However, the EPA 

has evaluated the broader legal basis 

that supports affirmative defense 

provisions in general and the specific 

affirmative defense provisions identified 

in the Petition in particular. Although 

the Petitioner did not distinguish 

between affirmative defense provisions 

for unplanned events such as 

malfunctions and affirmative defense 

provisions for planned events such as 

startup and shutdown, the EPA’s 

evaluation of the legal basis for 

affirmative defense provisions indicates 

that the SSM Policy should differentiate 

between unplanned and planned events. 

Accordingly, the EPA is proposing to 

deny the Petition in part with respect to 

affirmative defenses for malfunction 

events and to grant the Petition in part 

with respect to affirmative defenses for 

planned startup and shutdown events. 

To address this issue fully, it is 

necessary: (i) To explain the legal and 

policy basis for affirmative defenses for 

malfunction events; (ii) to explain why 

that basis would not extend to startup 

and shutdown events; and (iii) to 

explain why the Petitioner’s arguments 

with respect to CAA section 113 do not 

preclude affirmative defense provisions 

for malfunction events but support the 

distinction between unplanned and 

planned events. 

The EPA proposes to deny the 

Petition with respect to affirmative 

defense provisions in SIPs applicable to 

sources during malfunctions. The EPA’s 

SSM Policy has long recognized that 

there may be limited circumstances in 

which excess emissions are entirely 

beyond the control of the owner or 

operator. Thus, the EPA believes that an 

appropriately drawn affirmative defense 

provision recognizes that, despite 

diligent efforts by sources, such 

circumstances may create difficulties in 

meeting a legally required emission 

limitation continuously and that 


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22Court decisions confirm that this requirement 

for continuous compliance prohibits exemptions for 

excess emissions during SSM events. See, e.g., 

Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 

2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 

1170 (10th Cir. 2012). 

23See, 486 F.2d 427, 433 (D.C. Cir. 1973); 

Portland Cement Association v. Ruckelshaus, 486 

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

24See, Luminant Generation Co. v. EPA, 699 F.3d 

427 (5th Cir. 2012) (upholding the EPA’s approval 

of an affirmative defense applicable during 

malfunctions in a SIP submission as a permissible 

interpretation of the statute under Chevron step 2 

analysis); Mont. Sulphur & Chemical Co. v. EPA, 

666 F.3d 1174, 1191–93 (9th Cir. 2012) (upholding 

the EPA’s creation of an affirmative defense 

applicable during malfunctions in a FIP); Ariz. 

Public Service Co. v. EPA, 562 F.3d 1116, 1130 (9th 

Cir. 2009) (upholding the EPA’s creation of an 

affirmative defense applicable during malfunctions 

in a FIP). 

25See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; Texas; Excess Emissions 

During Startup, Shutdown, Maintenance, and 

Malfunction Activities; Notice of proposed 

rulemaking,’’ 75 FR 26892 at 26895 (May 13, 2010). 

In this proposed rule, the EPA explained 12 specific 

considerations that justified the proposed approval 

of the affirmative defense for unplanned events in 

the state’s SIP submission as consistent with the 

requirements of the CAA. 

26See, 1999 SSM Guidance at Attachment p. 4. 

emission standards may be violated 

under limited circumstances beyond the 

control of the source. 

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.’’ 22

While ‘‘continuous’’ standards are 

required, there is also case law 

indicating that technology-based 

standards should account for the 

practical realities of technology. For 

example, in Essex Chemical v. 

Ruckelshaus, the court acknowledged 

that in setting standards under CAA 

section 111, ‘‘variant provisions’’ such 

as provisions allowing for upsets during 

startup, shutdown and equipment 

malfunction ‘‘appear necessary to 

preserve the reasonableness of the 

standards as a whole and that the record 

does not support the ‘never to be 

exceeded’ standard currently in 

force.’’ 23 Though intervening case law 

and amendments to the CAA call into 

question the relevance of this line of 

cases today, they support the EPA’s 

view that a system that incorporates 

some level of flexibility is reasonable 

and consistent with the overall intent of 

the CAA. An appropriately drawn 

affirmative defense provision simply 

provides for a defense to monetary 

penalties for violations that are proven 

to be beyond the control of the source. 

The EPA notes that the affirmative 

defense does not excuse a source from 

injunctive relief, i.e., from being 

required to take further steps to prevent 

future upsets or malfunctions that cause 

harm to the public health. The EPA 

believes that affirmative defense 

provisions can supply flexibility both to 

ensure that emission limitations are 

‘‘continuous’’ as required by CAA 

section 302(k), because any violations 

remain subject to a claim for injunctive 

relief, and to provide limited relief in 

actions for penalties for malfunctions 

that are beyond the control of the owner 

where the owner has taken necessary 

steps to minimize the likelihood and the 

extent of any such violation. This 

approach supports the reasonableness of 

the SIP emission limitations as a whole. 

SIP emission limitations must apply and 

be enforceable at all times. A narrow 

affirmative defense for malfunction 

events helps to meet this requirement by 

ensuring that even where there is a 

malfunction, the emission limitations 

are still applicable and enforceable 

through injunctive relief. Several courts 

have agreed with this approach.24

Because the Petitioner questioned the 

legal basis for affirmative defense 

provisions in SIPs, the EPA wants to 

reiterate the basis for its 

recommendations concerning such 

provisions. Starting with the 1982 SSM 

Guidance, the EPA has made a series of 

recommendations concerning how 

states might address violations of SIP 

provisions consistent with CAA 

requirements in the event of 

malfunctions. In the 1982 SSM 

Guidance, the EPA recommended the 

exercise of enforcement discretion. 

Subsequently, in the 1983 SSM 

Guidance, the EPA expanded on this 

approach by recommending that a state 

could elect to adopt SIP provisions 

providing parameters for the exercise of 

enforcement discretion by the state’s 

personnel. In the 1999 SSM Guidance, 

the EPA recognized the use of an 

affirmative defense as a permissible 

method for addressing excess emissions 

that were beyond the control of the 

owner or operator of the source and 

recommended parameters that should 

be included as part of such an 

affirmative defense in order to ensure 

that it would be available only in certain 

narrow circumstances. 

The EPA interprets the provisions in 

CAA section 110(a) to allow the use of 

narrowly tailored affirmative defense 

provisions in SIP provisions. In 

particular, CAA section 110(a) requires 

each state to have a SIP that provides for 

the attainment, maintenance, and 

enforcement of the NAAQS, protects 

PSD increments, protects visibility, and 

meets the other requirements of the 

CAA. These statutory provisions 

include the explicit requirements that 

SIPs contain emission limitations in 

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

and that these emission limitations must 

apply continuously in accordance with 

CAA section 302(k). The CAA is silent 

as to whether or not states may elect to 

create affirmative defense provisions in 

SIPs. In light of the ambiguity created by 

this silence, the EPA has interpreted the 

CAA to allow affirmative defense 

provisions in certain narrowly 

prescribed circumstances. While 

recognizing that there is some ambiguity 

in the statute, the EPA also recognizes 

that there are some limits imposed by 

the overarching statutory requirements 

such as the obligation that SIPs provide 

for the attainment and maintenance of 

the NAAQS. Thus, the EPA believes that 

in order for an affirmative defense 

provision to be consistent with the 

CAA, it: (i) Has to be narrowly drawn 

to address only those excess emissions 

that are unavoidable; (ii) cannot 

interfere with the requirement that the 

emission limitations apply continuously 

(i.e., cannot provide relief from 

injunctive relief); and (iii) cannot 

interfere with the overarching 

requirements of the CAA, such as 

attaining and maintaining the 

NAAQS.25

The EPA believes this interpretation 

is reasonable because it does not 

interfere with the overarching goals of 

title I of the CAA, such as attainment 

and maintenance of the NAAQS, and at 

the same time recognizes that, despite 

best efforts of sources, technology is 

fallible. The EPA disagrees with the 

suggestion that an affirmative defense 

will encourage lax behavior by sources 

and, in fact, believes the opposite. The 

potential relief from monetary penalties 

for violations in many cases may serve 

as an incentive for sources to be more 

diligent to prevent and to minimize 

excess emissions in order to be able to 

qualify for the affirmative defense. An 

underlying premise of an affirmative 

defense provision for malfunctions is 

that the excess emissions are entirely 

beyond the control of the owner or 

operator of the source. First, a 

malfunction is a sudden and 

unavoidable event that cannot be 

foreseen or planned for. As explained in 

the 1999 SSM Guidance, the EPA 

considers malfunctions to be ‘‘sudden, 

unavoidable, and unpredictable in 

nature.’’ 26 In order to establish an 

affirmative defense for a malfunction, 

the recommended criteria specify that 

the source, among other things, must 

have been appropriately designed, 

operated, and maintained to prevent 

such an event, and the source must have 

taken all practicable steps to prevent 


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27 Id. at 3–4. 

28See, ‘‘Approval and Promulgation of 

Implementation Plans; Texas; Excess Emissions 

During Startup, Shutdown, Maintenance, and 

Malfunction Activities,’’ 75 FR 68989 at 68992 

(Nov. 10, 2010). 

29 In Luminant Generation Co. v. EPA, 699 F.3d 

427 (5th Cir. 2012), the court upheld the EPA’s 

disapproval of an affirmative defense provision in 

a SIP submission that pertained to ‘‘planned 

activities,’’ which included startup, shutdown, and 

maintenance. The EPA disapproved this provision, 

in part because it provided an affirmative defense 

for maintenance. The court rejected challenges to 

the EPA’s disapproval of this provision, holding 

that under Chevron step 2, the EPA’s interpretation 

of the CAA was reasonable. 

30See, 1999 SSM Guidance at Attachment 5–6. 

31States have primary responsibility for 

developing SIPs in accordance with CAA section 

107(a). An air agency’s discretion to develop SIP 

provisions is not unbounded, however, and the 

EPA’s responsibility under CAA section 110(k), 

section 110(l), and section 193, to review SIP 

submissions prospectively, and under CAA section 

110(k)(5) retrospectively, is to determine whether 

the SIP provisions in fact meet all applicable 

statutory and regulatory requirements. Thus, for 

example, the EPA does not believe that an air 

agency has discretion to create an exemption for 

excess emissions during SSM events, because such 

exemption would conflict with fundamental CAA 

requirements for SIPs. 

and to minimize the excess emissions 

that result from the malfunction. 

Through the criteria recommended in 

the 1999 SSM Guidance for approvable 

affirmative defense provisions for 

malfunctions, the EPA reflected its view 

that approvable provisions should be 

narrowly drawn and should be 

restricted to events beyond the control 

of the owner or operator of the source.27

The EPA recommends that states 

consider 10 specific criteria in such 

affirmative defense provisions. 

Unlike the EPA’s proposed response 

to the request to rescind its SSM Policy 

with respect to affirmative defenses for 

malfunctions, the EPA proposes to grant 

the Petition with respect to its 

interpretation of the CAA concerning 

affirmative defense for excess emissions 

during startup and shutdown events. 

Accordingly, the EPA is also proposing 

to issue a SIP call for SIP provisions 

identified in the Petition that provide an 

affirmative defense for excess emissions 

during planned events, such as startup 

and shutdown. The legal and factual 

rationale for an affirmative defense 

provision for malfunctions does not 

translate to planned events such as 

startup and shutdown. By definition, 

the owner or operator of a source can 

foresee and plan for startup and 

shutdown events. Because these events 

are planned and predictable, the EPA 

believes that air agencies should be able 

to establish, and sources should be able 

to comply with, the applicable emission 

limitations or other control measures 

during these periods of time. In 

addition, a source can be designed, 

operated, and maintained to control and 

to minimize emissions during such 

normal expected events. If 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 

requirements that apply during such 

periods, so long as they meet other 

applicable CAA requirements. 

Providing an affirmative defense to 

sources for violations that they could 

reasonably anticipate and prevent is not 

consistent with the theory that supports 

allowing such affirmative defenses for 

malfunctions, i.e., that where excess 

emissions are entirely beyond the 

control of the owner or operator of the 

source it is appropriate to provide 

limited relief to claims for monetary 

penalties. The EPA has previously made 

the distinction that excess emissions 

that occur during maintenance should 

not be accorded special treatment, 

because sources should be expected to 

comply with emission limitations 

during maintenance activities as they 

are planned and within the control of 

the source.28 The EPA believes that 

same rationale applies to periods of 

startup and shutdown.29

The EPA acknowledges that its 1999 

SSM Guidance explicitly recognized 

that states could elect to create 

affirmative defense provisions 

applicable to startup and shutdown 

events. However, the EPA has 

reevaluated the justification that could 

support an affirmative defense during 

these activities and now believes that 

the ability and obligation of sources to 

anticipate and to plan for routine events 

such as startup and shutdown negates 

the justification for relief from monetary 

penalties for violations during those 

events. Moreover, the EPA notes that the 

various criteria recommended for 

affirmative defenses for startup and 

shutdown to a large extent already 

mirrored those relevant for 

malfunctions, such as: (i) The event 

could not have been prevented through 

careful planning and design; (ii) the 

excess emissions were not part of a 

recurring pattern; and (iii) if the excess 

emissions resulted from bypassing a 

control measure, they were unavoidable 

to prevent loss of life, personal injury, 

or severe property damage.30 As a 

practical matter, many startup and 

shutdown events that could have met 

these conditions recommended in the 

1999 SSM Guidance are likely to have 

been associated with malfunctions, and 

the EPA explicitly stated that if the 

excess emissions ‘‘occur during routine 

startup or shutdown periods due to a 

malfunction, then those instances 

should be treated as malfunctions.’’ The 

key distinction remains, however, that 

normal source operations such as 

startup and shutdown are planned and 

predictable events. For this reason, the 

EPA is proposing to revise its SSM 

Policy to reflect its interpretation of the 

CAA that affirmative defense provisions 

applicable during startup and shutdown 

are not appropriate. 

Further support for distinguishing 

between malfunctions and planned 

events such as startup and shutdown is 

to be found in the Petitioner’s argument 

that affirmative defense provisions in 

SIPs usurp the role of courts to decide 

liability and to assess penalties for 

violations under CAA section 113. The 

Petitioner views CAA sections 113(b) 

and 113(e) as statutory bars to any form 

of affirmative defense provision, 

regardless of the nature of the event. 

Rather than supporting the Petitioner’s 

conclusion, however, the EPA believes 

that this argument illustrates why it is 

appropriate to allow affirmative 

defenses for malfunctions but not for 

planned events such as startup and 

shutdown. 

At the outset, the EPA disagrees with 

the Petitioner’s view that CAA section 

113(b) explicitly precludes air agencies 

from adopting, and the EPA from 

approving, SIP emission limitations for 

sources that distinguish between 

conduct such that some violations 

should only be subject to injunctive 

relief rather than injunctive relief and 

monetary penalties. Section 110(a)(2)(A) 

of the CAA requires states to develop 

SIPs that ‘‘include enforceable emission 

limitations * * * as may be necessary 

or appropriate to meet the requirements 

of’’ the CAA. However, CAA section 

302(k) defines ‘‘emission limitation’’ 

very broadly to require limits on ‘‘the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis.’’ Significantly, the 

latter definition does not on its face 

preclude provisions devised by the state 

that may distinguish between violations 

based on the conduct of the source. The 

CAA is silent on whether or not a state 

may include an affirmative defense 

provision in its SIP. The EPA believes 

that the CAA thus provides states with 

discretion in developing plans that meet 

statutory and regulatory requirements, 

such as providing for attainment and 

maintenance of the NAAQS, as long as 

they are consistent with CAA 

requirements.31

The EPA believes that creating a 

narrowly tailored affirmative defense for 

malfunctions is within an air agency’s 


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12472 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

32 551 F.3d 1019, 1021 (D.C. Cir. 2008). 

authority, and that approving such a 

provision to make it part of the SIP is 

within the EPA’s authority. An 

affirmative defense provision can be a 

means of striking a reasonable balance 

between the requirements of the CAA 

and the realities and limits of 

technology. Air agencies and the EPA 

must ensure continuous compliance but 

also recognize that, despite diligent 

efforts by sources, there may be limited 

unforeseen and unavoidable 

circumstances that create difficulties in 

meeting applicable emission limitations 

continuously. 

The EPA’s SSM Policy recognizes an 

approach under which air agencies may, 

if they elect, create two tiers of liability 

for violations due to excess emissions 

during periods of malfunction: (i) A 

lesser level of liability for violations for 

which the source could only be subject 

to injunctive relief (where it could meet 

the requirements for an affirmative 

defense with respect to penalties); and 

(ii) a higher level of liability for 

violations for which the source could be 

subject to both injunctive relief and 

monetary penalties (where it could not 

meet the requirements for an affirmative 

defense with respect to penalties). 

The EPA also disagrees with the 

Petitioner’s argument that the inclusion 

of penalty factors in CAA section 113(e) 

is a statutory bar to all affirmative 

defense provisions in SIPs. The EPA 

believes that these statutory factors 

apply only for violations for which the 

regulations approved into the SIP 

contemplate monetary penalties. A 

court, in determining whether there is a 

violation of the SIP provision, and 

whether the source has met the 

conditions for an affirmative defense, 

cannot change the forms of relief for 

violations provided in the approved SIP. 

Approval of the regulation into the SIP 

by the EPA thus affects the availability 

of monetary penalties for the violation 

in the first instance. The EPA reiterates, 

however, that such a provision would 

not be consistent with the requirements 

of the CAA if it did not preserve the 

availability for injunctive relief in the 

event of violations. Failure to provide in 

a SIP provision for any form of 

enforcement for excess emissions during 

SSM events would be equivalent to the 

type of provision that excused excess 

emissions during malfunction from 

compliance with standards under CAA 

section 112 that the court rejected in 

Sierra Club v. EPA.32 The EPA’s 

longstanding position with regard to 

SIPs is that blanket exemptions from 

compliance are not consistent with the 

requirements such as attainment and 

maintenance of the NAAQS because 

they eliminate much of the incentive 

that sources would otherwise have to 

minimize the likelihood of violations 

and to minimize the extent of a 

violation once it occurs. Elimination of 

potential availability of injunctive relief 

for violations would be fundamentally 

inconsistent with the requirement that 

there may be enforcement to cause the 

installation of control measures, 

changes of operation, or other changes 

necessary at the source in order to bring 

the source into compliance with the 

applicable emission limitations to meet 

CAA requirements. 

The EPA likewise disagrees with the 

Petitioner’s claim that the elements for 

establishing an affirmative defense in a 

SIP provision supplant the mandatory 

factors that Congress provided for 

determining the amount of penalties to 

be assessed in CAA section 113(e). 

Under CAA section 110(a)(2), states 

have the responsibility to devise 

enforceable emission limitations for 

sources and to develop a program for 

their implementation and enforcement. 

The CAA does not require that air 

agencies treat all violations equally. In 

devising its SIP, an air agency has 

authority to determine what constitutes 

a violation and to distinguish between 

different types of violations, within the 

bounds allowed by the CAA and 

applicable regulations. As the EPA has 

long recognized in its SSM Policy, 

circumstances surrounding a given 

violation may justify distinguishing 

between those where injunctive relief is 

appropriate versus those where both 

injunctive relief and monetary penalties 

are appropriate. Providing an 

affirmative defense to monetary 

penalties in certain circumstances does 

not negate the factors that Congress 

provided in CAA section 113(e). In the 

event that a source violates its emission 

limitations and fails to meet the 

requirements of an available defense in 

the SIP, then it is the court that 

determines the level of monetary 

penalties appropriate using the statutory 

factors in CAA section 113(e). 

The EPA notes that the provisions of 

CAA section 304 relevant to citizen 

enforcement provide additional support 

for the view that air agencies can 

determine that certain violations should 

not be subject to monetary penalties. 

Section 304(a) explicitly provides that 

the court in an enforcement proceeding 

has jurisdiction to enforce emission 

limits, to issue orders, ‘‘and to apply 

any appropriate civil penalties.’’ The 

EPA believes that monetary penalties 

that might otherwise be an available 

response to a violation cannot be 

‘‘appropriate’’ if an air agency has 

properly created an affirmative defense 

provision that eliminates such penalties 

for violations under specified 

circumstances in the SIP provision that 

is before the court. The mere fact that 

CAA section 113(b) includes penalties 

as a potential form of relief for 

violations in general does not mean that 

air agencies must construct SIP 

requirements that in all instances 

require monetary penalties. 

As with CAA section 110(a) governing 

SIP provisions in general, neither CAA 

section 113(b) nor CAA 113(e) expressly 

addresses the availability of an 

affirmative defense. Thus, the EPA 

believes it is reasonable to interpret 

these specific provisions in light of the 

need to balance the requirement for 

continuous compliance with emission 

limitations in order to meet overarching 

goals of the statute such as attainment 

and maintenance of the NAAQS with 

the fact that even the most diligent 

source may not be able to meet emission 

limitations 100 percent of the time. The 

EPA has recognized that it is 

permissible for an air agency to provide 

narrowly drawn affirmative defense 

provisions in SIPs that provide relief 

from monetary penalties for violations 

that occur due to circumstances beyond 

the control of the source. When a source 

has been properly designed, operated, 

and maintained, and has taken action to 

prevent and to minimize the excess 

emissions, such relief may be 

warranted. Also, as with CAA section 

110(a), the EPA does not believe that 

CAA section 113’s silence with regard to 

affirmative defense provisions should be 

interpreted to allow broad use of such 

provisions during planned events that 

are within the control of the source. The 

enforcement provisions of the CAA 

must be read in light of the goals and 

purposes of the provisions with which 

they are meant to ensure compliance. As 

provided above, the EPA believes that 

the use of an affirmative defense is 

appropriate only in those narrow 

circumstances where it is necessary to 

harmonize the competing interests of 

the CAA regarding continuous 

compliance and the limits or fallibility 

of technology. 

In summary, the EPA believes that the 

CAA provides air agencies in the first 

instance in their role as the developer of 

SIPs, and then the EPA in its role as 

approver of SIPs, some discretion in 

defining the substantive requirements 

that are necessary to attain and maintain 

the NAAQS, protect PSD increments, 

and protect visibility, or to meet other 

CAA requirements. Until the air agency 

takes action to create a SIP, or the EPA 

takes action to create a FIP, that imposes 

and defines the applicable emission 


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Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 12473 

33Petition at 14. 34 Id. 

35See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision; Notice of proposed 

rulemaking,’’ 75 FR 70888 at 70892–93 (Nov. 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). 

36Petition at 17. 

limitations, there is no standard for a 

source to violate and thus no conduct 

for which a court could assess any 

penalties. The EPA believes that the 

CAA allows air agencies (or the EPA 

when it is promulgating a FIP) in 

defining emission standards to define 

narrowly drawn affirmative defenses 

that provide limited relief from 

monetary penalties but not for 

injunctive relief in specified 

circumstances. The EPA emphasizes 

that affirmative defense provisions for 

malfunctions need to be appropriately 

and narrowly drawn, and thus the SSM 

Policy makes recommendations for the 

types of criteria that would make such 

a provision consistent with the 

requirements of the CAA. 

For the foregoing reasons, the EPA is 

proposing to grant the Petition in part, 

and to deny the Petition in part, with 

respect to the Petitioner’s request that 

the EPA rescind its SSM Policy 

interpreting the CAA to allow 

affirmative defense provisions in SIPs 

for excess emissions during SSM events. 

In addition, the EPA is proposing to 

grant the Petition in part, and to deny 

the Petition in part, with respect to the 

Petitioner’s request that the EPA issue 

SIP calls for those affirmative defense 

provisions in specific SIP provisions 

identified in the Petition. The EPA 

requests comment on this proposed 

action. As discussed in section VII.B of 

this notice, the EPA is also restating its 

recommended criteria for approvable 

affirmative defenses for malfunctions in 

SIP provisions consistent with CAA 

requirements. Further, as discussed in 

section IX of this notice, the EPA is 

proposing to grant or to deny the 

Petition with respect to the specific SIP 

provisions identified by the Petitioner 

as inconsistent with the CAA. 

V. Proposed Action in Response to 

Request for the EPA’s Review of 

Specific Existing SIP Provisions for 

Consistency With CAA Requirements 

A. Petitioner’s Request 

The Petitioner’s second request was 

for the EPA to find 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.’’ 33 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.’’ 34

In support of this request, the 

Petitioner expressed concern that many 

SIPs 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 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 

startup, shutdown, or malfunction. 

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 purport to bar 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 

to by sources. Instead, the Petitioner 

contended, exemptions for excess 

emissions often result in real-world 

emissions that are far higher than the 

level of emissions envisioned and 

planned for in the SIP. Citing the EPA’s 

own guidance and past administrative 

actions, the Petitioner explained that 

exemptions from otherwise applicable 

emission limitations can allow large 

amounts of additional emissions that are 

not accounted for in SIPs and that 

exemptions thus ‘‘create large loopholes 

to the Act’s fundamental requirement 

that a SIP must provide for attainment 

and maintenance of the NAAQS and 

PSD increments.’’ 

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.’’ In support of this 

contention, the Petitioner quoted from 

the EPA’s recent action to rectify such 

a provision in the Utah SIP: 

* * * 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.35

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.’’ 36 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 


srobinson on DSK4SPTVN1PROD with PROPOSALS3
12474 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

37See, e.g., 1982 SSM Guidance at 1. 

38See, e.g., 1983 SSM Guidance at Attachment 

p. 2. 39Petition at 16. 

40Petition at 14. 41Petition at 15. 42See, ‘‘Revision to Oklahoma Regulation 1.5— 

Reports Required, Excess Emissions During Startup, 

Shutdown and Malfunction of Equipment,’’ 49 FR 

3084 (Jan. 25, 1984). At the time of the proposed 

and final action, the operative EPA guidance was 

the 1983 SSM Guidance. 43Petition at 15. 44See, ‘‘Redesignation of the Knoxville 1997 8- 

Hour Ozone Nonattainment Area to Attainment,’’ 

76 FR 12587 (Mar. 8, 2011). 

listed the SIP provisions in each state 

for which it seeks a specific remedy. 

B. The EPA’s Response 

In general, the EPA agrees with key 

statements of the Petitioner. The EPA’s 

longstanding interpretation of the CAA 

is that automatic exemptions from 

emission limitations in SIPs are 

impermissible because they are 

inconsistent with the fundamental 

requirements of the CAA. The EPA has 

reiterated this point in its guidance 

documents and in rulemaking actions 

numerous times. The EPA has also 

acknowledged that it previously 

approved some SIP provisions that 

provide such exemptions in error and 

encouraged states to rectify them.37

The EPA also has a longstanding 

interpretation of the CAA that does not 

allow ‘‘director’s discretion’’ provisions 

in SIPs 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. Moreover, the CAA would not 

allow approval of a SIP provision that 

provided director’s discretion to create 

discretionary exemptions for violations 

when the CAA would not allow such 

exemptions in the first instance. 

In addition, the EPA’s longstanding 

interpretation of the CAA is that SIPs 

may contain provisions concerning 

‘‘enforcement discretion’’ by the air 

agency’s own personnel, but such 

provisions cannot bar enforcement by 

the EPA or through a citizen suit.38 In 

the event such a 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. Although the EPA does 

not agree with the Petitioner concerning 

all affirmative defense provisions in 

SIPs, the EPA does agree that such 

provisions have to meet CAA 

requirements. 

The EPA also agrees that automatic 

exemptions, discretionary exemptions 

via director’s discretion, ambiguous 

enforcement discretion provisions that 

may be read to preclude EPA or citizen 

enforcement, and inappropriate 

affirmative defense provisions can 

interfere with the overarching objectives 

of the CAA, such as attaining and 

maintaining the NAAQS, protection of 

PSD increments, and protection of 

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, contrary to the 

fundamental enforcement structure 

provided in CAA sections 113 and 304. 

The EPA’s agreement on these broad 

principles, however, does not 

necessarily mean that the EPA agrees 

with the Petitioner’s views as to each of 

the specific SIP provisions identified as 

problematic in the Petition. The EPA 

has undertaken a comprehensive review 

of those specific SIP provisions to 

determine whether they are consistent 

with CAA requirements, and if they are 

not consistent, whether the provisions 

are substantially inadequate to meet 

CAA requirements and thus warrant 

action to rectify. 

The EPA has carefully 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. In many instances, the EPA 

tentatively concurs with the Petitioner’s 

analysis of the provision in question 

and accordingly is proposing to grant 

the Petition with respect to that 

provision and simultaneously proposing 

to make a finding of substantial 

inadequacy and to issue a SIP call to 

rectify the SIP inadequacy. In other 

instances, however, the EPA tentatively 

disagrees with the Petitioner’s analysis 

of the provision and thus is proposing 

to deny the Petition with respect to that 

provision and to take no further action. 

The EPA’s evaluation of each of the 

provisions identified in the Petition is 

summarized in section IX of this notice. 

For the reasons discussed in section IX 

of this notice, the EPA is proposing to 

grant the Petition in part, and to deny 

the Petition in part, with respect to the 

specific existing SIP provisions for 

which the Petitioner requested a 

remedy. The EPA requests comment on 

the proposed actions on these specific 

SIP provisions. 

VI. Proposed 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. Petitioner’s Request 

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.’’ 39 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.40 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 

inefficient.’’ 41

In support of this request, the 

Petitioner alleged that past SIP 

approvals related to Oklahoma and 

Tennessee illustrate the practical 

problems that can arise from reliance on 

interpretive letters. With respect to 

Oklahoma, the Petitioner asserted that a 

1984 approval of a SIP submission from 

that state addressing SSM provisions 

required two letters of interpretation 

from the state in order for the EPA to 

determine that the actual regulatory text 

in the SIP submission was sufficiently 

consistent with CAA requirements 

pertaining to SSM provisions.42 The 

Petitioner conceded that the Federal 

Register notices for the proposed and 

final actions to approve the Oklahoma 

SIP submission did quote from the 

state’s letters but expressed concern that 

those letters were not actually 

‘‘promulgated as part of the Oklahoma 

SIP.’’ 

With respect to Tennessee, the 

Petitioner pointed to a more recent 

action concerning the redesignation of 

the Knoxville area to attainment for the 

1997 8-hour ozone NAAQS.43 In this 

action, the EPA evaluated whether the 

SIP for that state met requirements 

necessary for redesignation from 

nonattainment to attainment in 

accordance with CAA section 

107(d)(3).44 Again, the Petitioner noted 

that in order to complete that 

redesignation action, the EPA had to 

request that both the state and the local 

air planning officials confirm officially 

that the existing SIP provisions do not 

in fact provide an exemption for excess 


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45Petition at 15–16. 

46See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision; Notice of proposed 

rulemaking,’’ 75 FR 70888 at 70890 (Nov. 19, 2010). 

47Petition at 16. The Petitioner assumed that the 

original SIP action was one in which the EPA must 

have relied on an interpretive letter from the state 

as a basis for the prior SIP approval. In fact, 

however, the EPA recognized that the EPA 

statement in the prior final action approving the SIP 

revision in 1980 concerning federal law 

superseding incorrect state law embodied in the SIP 

was incorrect. Moreover, subsequent case law has 

illustrated that courts will not decide that CAA 

requirements automatically override existing SIP 

provisions, regardless of whether those SIP 

provisions met CAA requirements at the time of the 

approval or since. See, Sierra Club, et al. v. Georgia 

Power Co., 443 F.3d 1346, 1354 (11th Cir. 2006). 

48See, e.g., ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 76 FR 21639 at 

21648 (Apr. 18, 2011). 

49CAA 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 or not a given SIP provision meets such 

requirements, in reliance on the information that 

the EPA considers relevant for this purpose. 

emissions during SSM events and that 

the provisions should not be interpreted 

to do so. The implication of the 

Petitioner’s observation is that if the SIP 

provisions had been clear and 

unambiguous in the first instance, 

interpretive letters would not have been 

necessary. 

By contrast, the Petitioner pointed to 

the more recent SIP call action for Utah 

in which the EPA itself noted that it was 

unclear why the EPA had originally 

approved a particular SIP provision 

relevant to SSM events.45 Specifically, 

the Petitioner quoted the EPA’s own 

statement that ‘‘thirty years later, it is 

not clear how EPA reached the 

conclusion that exemptions granted by 

Utah would not apply as a matter of 

federal law or whether a court would 

honor EPA’s interpretation * * *’’ 46

The Petitioner argued that this situation 

where the EPA itself was unable to 

ascertain why a SIP provision was 

previously approved as meeting CAA 

requirements illustrates the concern that 

‘‘the state’s interpretation of its 

regulations may (or may not) be known 

by parties attempting to enforce the SIP 

decades after the provisions were 

created.’’ 47

From these examples, the Petitioner 

drew the conclusion that reliance on 

letters of interpretation from the state, 

even if reflected in the Federal Register 

notice as part of the explicit basis for the 

SIP approval, is insufficient. The 

Petitioner argued that such 

interpretations, if they are not plain on 

the face of the state regulations 

themselves, should be set forth in the 

SIP as reflected in the Code of Federal 

Regulations. The Petitioner advocated 

that all parties should be able to rely on 

the terms of the SIP as reflected in the 

Code of Federal Regulations, or 

alternatively on the SIP as shown on an 

EPA Internet Web page, rather than 

having to rely on other interpretive 

letters that may be difficult to locate. 

The Petitioner’s preferred approach, 

however, was that ‘‘all terms, 

conditions, limitations and 

interpretations of the various SSM 

provisions be reflected in the 

unambiguous language of the SIPs 

themselves.’’ 

B. The EPA’s Response 

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 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.48

However, the EPA believes that the 

use of interpretive letters to clarify 

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. 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, 

the interpretive letters necessarily 

establish the correct interpretation of 

any arguably ambiguous SIP provision. 

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.49 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 the area reach 

attainment more expeditiously than 

requiring the air agency to undertake a 

time-consuming administrative process 

to make a minor change in the 

regulatory text. 

Thus, to the extent that the Petitioner 

intended the Petition on this issue to be 

a request for the EPA never to use 

interpretive letters as part of the basis 

for approval of any SIP submission, the 

EPA disagrees with the Petitioner and 

accordingly is proposing to deny the 

request. The EPA notes that it is already 

the EPA’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. 

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 SIP regulations, 

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 toward 


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50The 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. 

51See, e.g., Luminant Generation Co. v. EPA, 699 

F.3d 427 (5th Cir. 2012) (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). 

terminology on the EPA’s part 

appropriate. 

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 

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: 

* * * 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 related to the operation or 

maintenance of a source to assure continuous 

emissions 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.50 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 

they meet CAA and regulatory 

requirements, the EPA’s role is to 

evaluate whether those provisions in 

fact meet those legal requirements.51

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 

understand the SIP requirements. Where 

the EPA perceives ambiguity in draft 

SIP submissions, it endeavors to resolve 

those ambiguities through interactions 

with the air agency in question 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 

regulatory requirements. In some 

instances, the air agency may supply 

that extra explanation in an official 

letter from the appropriate authority to 

resolve any potential ambiguity. 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. 

For example, in the Knoxville 

redesignation action that the Petitioner 

noted, the EPA took careful steps to 

ensure that the perceived ambiguity 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-by-provision 

basis. 

Finally, the EPA notes that while it is 

possible to reflect or incorporate 

interpretive letters in the regulatory text 

of the CFR, 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 notice 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 approval and remain 

available should they be needed 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 


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52See, 1983 SSM Guidance at Attachment p. 3. 

53See, 1999 SSM Guidance at 3. 

54See, 1999 SSM Guidance at Attachment 3–4. 

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 the 

administrative record to shed light on 

and resolve any such ambiguity as 

explained above. 

For the foregoing reasons, the EPA is 

proposing to deny the Petition on this 

issue concerning reliance on 

interpretive letters in actions on SIP 

submissions. The EPA requests 

comment on this proposed action. 

VII. Clarifications, Reiterations, and 

Revisions to the EPA’s SSM Policy 

A. Applicability of Emission Limitations 

During Periods of Startup and 

Shutdown 

The EPA’s evaluation of the Petition 

indicates that there is a need to clarify 

the SSM Policy with respect to excess 

emissions that occur during periods of 

planned startup and shutdown or other 

planned events. The significant number 

of SIP provisions identified in the 

Petition that create automatic or 

discretionary exemptions from emission 

limitations during startup and 

shutdown suggests that there may be a 

misunderstanding concerning whether 

the CAA permits such exemptions. 

Although the EPA’s stated position on 

this issue has been consistent since 

1977, ambiguity in some statements in 

the EPA’s guidance documents may 

have left the misimpression that such 

exemptions are consistent with the 

requirements of the CAA. Recent court 

decisions have indicated that such 

exemptions for excess emissions during 

periods of startup and shutdown are not 

in fact permissible under the CAA. 

Thus, in acting upon the Petition the 

EPA is clarifying its interpretation of the 

requirements of the CAA to forbid 

exemptions from otherwise applicable 

emission limitations for excess 

emissions during planned events such 

as startup and shutdown in SIP 

provisions. 

The EPA believes that any 

misimpression that exemptions for 

excess emissions are permissible during 

planned events such as startup and 

shutdown may have begun with a 

statement in the 1983 SSM Guidance. In 

this guidance, the EPA distinguished 

between excess emissions during 

unforeseeable events like malfunctions 

and foreseeable events like startup and 

shutdown. In drawing distinctions 

between these broad categories of 

events, the EPA stated: 

Startup and shutdown of process 

equipment are part of the normal operation 

of a source and should be accounted for in 

the planning, design and implementation of 

operating procedures for the process and 

control equipment. Accordingly, it is 

reasonable to expect that careful and prudent 

planning and design will eliminate violations 

of emission limitations during such periods. 

However, for a few sources there may exist 

infrequent short periods of excess emissions 

during startup and shutdown which cannot 

be avoided. Excess emissions during these 

infrequent short periods need not be treated 

as violations providing the source adequately 

shows that the excess could not have been 

prevented through careful planning and 

design and that bypassing of control 

equipment was unavoidable to prevent loss 

of life, personal injury, or severe property 

damage (emphasis added).52

The phrase ‘‘need not be treated as 

violations’’ may have been 

misunderstood to be a statement that the 

CAA would allow SIP provisions that 

provide an exemption for the resulting 

excess emissions, thereby defining the 

excess emissions as not a violation of 

the applicable emission limitations. The 

EPA did not intend to suggest that SIP 

provisions that included an actual 

exemption for excess emissions during 

startup and shutdown events would be 

consistent with the CAA; the EPA made 

this statement in the context of whether 

air agencies should exercise 

enforcement discretion and more 

specifically whether air agencies could 

elect to have SIP provisions that 

embodied their own exercise of 

enforcement discretion in such 

circumstances. As with any such SIP 

provisions addressing parameters of the 

air agency’s own exercise of 

enforcement discretion, that exercise of 

discretion cannot purport to bar 

enforcement by the EPA or through a 

citizen suit for excess emissions that 

must be treated as violations to meet 

CAA requirements. Thus, the use of the 

phrase ‘‘need not be treated as 

violations’’ was at a minimum confusing 

because it seemed to go to the definition 

of what could constitute a ‘‘violation’’ in 

a SIP provision rather than to whether 

the air agency might or might not elect 

to exercise enforcement discretion in 

such circumstances. 

The EPA believes that additional 

confusion may have resulted from 

ambiguity in the 1999 SSM Guidance. 

That document contained an entire 

section devoted to ‘‘source category 

specific rules for startup and 

shutdown.’’ In explaining its intentions 

in providing that section of the 

guidance, the EPA stated: 

Finally, EPA is clarifying how excess 

emissions that occur during periods of 

startup and shutdown should be addressed. 

In general, because excess emissions that 

occur during these periods are reasonably 

foreseeable, they should not be excused. 

However, EPA recognizes that, for some 

source categories, even the best available 

emissions control systems might not be 

consistently effective during startup or 

shutdown periods. [For certain sources in 

certain areas] these technological limitations 

may be addressed in the underlying 

standards themselves through narrowlytailored SIP revisions that take into account 

the potential impacts on ambient air quality 

caused by the inclusion of these allowances 

(emphasis added).53

The phrase ‘‘may be addressed * * * 

in narrowly-tailored SIP revisions’’ may 

have been misunderstood to suggest that 

the CAA would allow SIP provisions 

that provide an actual exemption for the 

resulting excess emissions and thus not 

treat the emissions as a violation of the 

applicable emission limitations. The 

EPA did not intend to suggest that an 

exemption would be permissible; the 

EPA intended to suggest that the air 

agency might elect to design special 

emission limitations or other control 

measures that applied to the sources in 

question during startup and shutdown, 

as indicated by the earlier phrase that 

the excess emissions ‘‘should not be 

excused.’’ 

In addition, Section III.A of the 1999 

SSM Guidance recommended very 

specific criteria that air agencies should 

consider including as part of any SIP 

provision that was intended to apply to 

sources during startup and shutdown in 

lieu of the otherwise applicable 

emission limitations.54 In order to revise 

the otherwise applicable emission 

limitation in the SIP, the EPA 

recommended that in order to be 

approvable (i.e., meet CAA 

requirements), the new special 

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. 

However, the 1999 SSM Guidance 

should have been clearer that the SIP 

revisions under discussion could not 

create an exemption for emissions 

during startup and shutdown, but rather 

specific emission limitations or control 

measures that would apply during those 

periods. Also unstated but implicit was 

the requirement that any such SIP 


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55See, 1999 SSM Guidance at Attachment 3–4. 

revision that would alter the existing 

applicable emission limitations for a 

source during startup and shutdown 

would be subject to the same 

requirements as any other SIP 

submission, i.e., compliance with CAA 

sections 110(a), 110(k), 110(l), 193, and 

any other CAA provision substantively 

germane to the SIP revision. 

The EPA concludes that the CAA does 

not allow SIP provisions that include 

exemptions from emission limitations 

during planned events such as startup 

and shutdown. Instead, the CAA would 

allow special emission limitations or 

other control measures or control 

techniques that are designed to 

minimize excess emissions during 

startup and shutdown. 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 apply to startup 

and shutdown. These criteria are: 

(1) The revision must be 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 must be technically 

infeasible during startup or shutdown 

periods; 

(3) The frequency and duration of 

operation in startup or shutdown mode 

must be minimized to the maximum 

extent practicable; 

(4) As part of its justification of the 

SIP revision, the state should analyze 

the potential worst-case emissions that 

could occur during startup and 

shutdown; 

(5) All possible steps must be taken to 

minimize the impact of emissions 

during startup and shutdown on 

ambient air quality; 

(6) At all times, the facility must be 

operated in a manner consistent with 

good practice for minimizing emissions, 

and the source must have used best 

efforts regarding planning, design, and 

operating procedures to meet the 

otherwise applicable emission 

limitation; and 

(7) The owner or operator’s actions 

during startup and shutdown periods 

must be documented by properly 

signed, contemporaneous operating 

logs, or other relevant evidence. 

The EPA’s evaluation of the Petition 

also indicates that there is a need to 

reiterate the SSM Policy with respect to 

excess emissions that occur during other 

periods of normal source operation in 

addition to during periods of startup 

and shutdown. 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,’’ 

‘‘soot blowing,’’ ‘‘on-line operating 

changes,’’ or other similar normal 

modes of operation. Like startup and 

shutdown, the EPA considers all of 

these to be phases 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 a 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 during planned and 

predicted periods should be treated as 

violations of the applicable emission 

limitations. 

B. Affirmative Defense Provisions 

During Periods of Malfunction 

The EPA’s evaluation of the Petition 

indicates that it would be helpful to 

reiterate the SSM Policy with respect to 

affirmative defense provisions that 

would be consistent with CAA 

requirements for malfunctions. Many of 

the specific SIP provisions identified in 

the Petition may have been intended to 

operate as affirmative defenses, but 

nevertheless they have significant 

deficiencies. In particular, many of the 

SIP provisions at issue stipulate that if 

the source meets the conditions 

specified, then the excess emissions 

would not be considered violations for 

any purpose, not merely with respect to 

monetary penalties. This is contrary to 

the EPA’s interpretation of the CAA. In 

addition, many of the SIP provisions 

identified in the Petition that resemble 

affirmative defense provisions do not 

have sufficiently robust criteria to 

assure that the affirmative defense is 

available only for events that are 

entirely beyond the control of the owner 

or operator of the source and events 

where the owner or operator of the 

sources has made all practicable efforts 

to comply. 

After consideration of the issues 

raised by the Petition and the wide 

variety of existing SIP provisions the 

Petitioner alleged are deficient, the EPA 

wants to reiterate the criteria that it 

considers appropriate for approvable 

affirmative defense provisions in SIPs. 

In addition, to provide a clear 

illustration of regulatory text that 

embodies these criteria effectively, the 

EPA also wishes to provide an example 

of the regulatory provisions that the 

EPA employs in its own regulations to 

serve this purpose effectively and 

consistently with CAA requirements. 

The criteria that the EPA recommends 

for approvable affirmative defense 

provisions for excess emissions for 

malfunctions consistent with CAA 

requirements remain essentially the 

same as stated in the 1999 SSM 

Guidance.55 We repeat them here. Most 

importantly, a valid affirmative defense 

for excess emissions due to a 

malfunction can only be effective with 

respect to monetary penalties, not with 

respect to potential injunctive relief. 

Second, the affirmative defense should 

be limited only to malfunctions that are 

sudden, unavoidable, and 

unpredictable. Third, a valid affirmative 

defense provision must provide that the 

defendant has the burden of proof to 

demonstrate all of the elements of the 

defense to qualify. This demonstration 

has to occur in a judicial or 

administrative proceeding where the 

merits of the affirmative defense are 

independently and objectively 

evaluated. The specific criteria that the 

EPA recommends for an affirmative 

defense provision for malfunctions to be 

consistent with CAA requirements are: 

(1) The excess emissions were caused 

by a sudden, unavoidable breakdown of 

technology, beyond the control of the 

owner or operator; 

(2) The excess emissions (a) did not 

stem from any activity or event that 

could have been foreseen and avoided, 

or planned for, and (b) could not have 

been avoided by better operation and 

maintenance practices; 

(3) To the maximum extent 

practicable the air pollution control 

equipment or processes were 

maintained and operated in a matter 

consistent with good practice for 

minimizing emissions; 

(4) 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 must have been utilized, to the 

extent practicable, to ensure that such 

repairs were made as expeditiously as 

practicable; 

(5) The amount and duration of the 

excess emissions (including any bypass) 

were minimized to the maximum extent 

practicable during periods of such 

emissions; 

(6) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality; 

(7) All emission monitoring systems 

were kept in operation if at all possible; 

(8) The owner or operator’s actions in 

response to the excess emissions were 

documented by properly signed, 


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56See, ‘‘National Emission Standards for 

Hazardous Air Pollutants From the Pulp and Paper 

Industry,’’ final rule, 77 FR 55698 (Sept. 11, 2012). 

Parameters for the affirmative defense are provided 

at p. 55712. 57See, 1999 SSM Guidance at attachment p. 6. 

contemporaneous operating logs, or 

other relevant evidence; 

(9) The excess emissions were not 

part of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance; and 

(10) The owner or operator properly 

and promptly notified the appropriate 

regulatory authority. 

One refinement to these 

recommendations from the 1999 SSM 

Guidance that should be highlighted is 

the EPA’s view concerning whether 

affirmative defenses should be provided 

in the SIP in the case of geographic 

areas and pollutants ‘‘where a single 

source or small group of sources has the 

potential to cause an exceedance of the 

NAAQS or PSD increments.’’ The EPA 

believes that such affirmative defenses 

may be permissible if there is no 

‘‘potential’’ for exceedances. Such 

provisions may also be permissible if 

the affirmative defense alternatively 

requires the source to make an 

affirmative after-the-fact showing that 

the excess emissions that resulted from 

the violations did not in fact cause an 

exceedance of the NAAQS or PSD 

increments. The EPA has previously 

approved such provisions as meeting 

CAA requirements on a case-by-case 

basis in specific actions on SIP 

submissions, and in this action proposes 

to continue that approach under proper 

facts and circumstances. 

In addition to the foregoing criteria for 

appropriate affirmative defense 

provisions, the EPA also recommends 

that air agencies consider the following 

regulatory language that the EPA is 

currently using for affirmative defense 

provisions when it issues new National 

Emissions Standards for Hazardous Air 

Pollutants (NESHAP) for purposes of 

CAA section 112.56 Air agencies may 

wish to adapt this sample regulatory 

text for their own affirmative defense 

provisions in SIPs. 

§ 63.456 Affirmative defense for violation of 

emission standards during malfunction. 

In response to an action to enforce the 

standards set forth in §§ 63.443(c) and (d), 

63.444(b) and (c), 63.445(b) and (c), 

63.446(c), (d), and (e), 63.447(b) or 

§ 63.450(d), the owner or operator may assert 

an affirmative defense to a claim for civil 

penalties for violations of such standards that 

are caused by malfunction, as defined at 40 

CFR 63.2. Appropriate penalties may be 

assessed, however, if the owner or operator 

fails to meet the burden of proving all of the 

requirements in the affirmative defense. The 

affirmative defense shall not be available for 

claims for injunctive relief. 

(a) To establish the affirmative defense in 

any action to enforce such a standard, the 

owner or operator must timely meet the 

reporting requirements in paragraph (b) of 

this section, and must prove by a 

preponderance of evidence that: 

(1) The violation: 

(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; and 

(ii) Could not have been prevented through 

careful planning, proper design, or better 

operation and maintenance practices; and 

(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; and 

(2) Repairs were made as expeditiously as 

possible when a violation occurred. Off-shift 

and overtime labor were used, to the extent 

practicable to make these repairs; and 

(3) The frequency, amount and duration of 

the violation (including any bypass) were 

minimized to the maximum extent 

practicable; and 

(4) If the violation resulted from a bypass 

of control equipment or a process, then the 

bypass was unavoidable to prevent loss of 

life, personal injury, or severe property 

damage; and 

(5) All possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment, and 

human health; and 

(6) All emissions monitoring and control 

systems were kept in operation if at all 

possible, consistent with safety and good air 

pollution control practices; and 

(7) All of the actions in response to the 

violation were documented by properly 

signed, contemporaneous operating logs; and 

(8) At all times, the affected source was 

operated in a manner consistent with good 

practices for minimizing emissions; and 

(9) A written root cause analysis has been 

prepared, the purpose of which is to 

determine, correct, and eliminate the primary 

causes of the malfunction and the violation 

resulting from the malfunction event at issue. 

The analysis shall also specify, using best 

monitoring methods and engineering 

judgment, the amount of any emissions that 

were the result of the malfunction. 

(b) Report. The owner or operator seeking 

to assert an affirmative defense shall submit 

a written report to the Administrator with all 

necessary supporting documentation, 

[showing] that it has met the requirements set 

forth in paragraph (a) of this section. This 

affirmative defense report shall be included 

in the first periodic compliance [report], 

deviation report, or excess emission report 

otherwise required after the initial 

occurrence of the violation of the relevant 

standard (which may be the end of any 

applicable averaging period). If such 

compliance [report], deviation report, or 

excess emission report is due less than 45 

days after the initial occurrence of the 

violation, the affirmative defense report may 

be included in the second compliance 

[report], deviation report, or excess emission 

report due after the initial occurrence of the 

violation of the relevant standard. 

(Punctuation adjusted) 

The EPA notes that this example 

regulatory text has some features that 

are not explicitly among the criteria 

recommended for SIP provisions in the 

SSM Policy, such as the requirement for 

a ‘‘root cause analysis’’ in subsection 

(a)(9) and an affirmative requirement to 

report the malfunction to the regulator 

by a set date and in a particular report, 

rather than merely a general duty to 

report the malfunction event to the 

regulator. The EPA considers such 

features useful because they serve 

important purposes related to the 

analysis, documentation, and 

memorialization of the facts concerning 

the malfunction, thereby facilitating 

better evaluation of the events and 

better evaluation of the source’s 

qualification for the affirmative defense. 

The EPA believes that these specific 

features would be very useful and thus 

recommends that they be included in 

SIP provisions for affirmative defenses. 

However, these features need not be 

required, so long as the SIP provision 

otherwise provides that the owner or 

operator of the source will: (i) Bear the 

burden of proof to establish that the 

elements of the affirmative defense have 

been met; and (ii) properly and 

promptly notify the appropriate 

regulatory authority about the 

malfunction. 

The EPA also wants to reiterate its 

views concerning appropriate 

affirmative defense provisions as they 

relate to malfunctions that occur during 

planned startup and shutdown and as 

they relate to startup and shutdown that 

occur as the result of or part of a 

malfunction. With respect to 

malfunctions that happen to occur 

during planned startup or shutdown, as 

the EPA articulated in the 1999 SSM 

Guidance, the excess emissions that 

occur as a result of the malfunction may 

be addressed by an appropriately drawn 

affirmative defense provision consistent 

with the recommended criteria for such 

provisions.57 By definition, the 

malfunction would have been sudden, 

unavoidable, and unpredictable, and the 

source could not have precluded the 

event by better source design, operation 

and maintenance. The EPA interprets 

the CAA to allow narrowly drawn 

affirmative defense provision in SIPs in 

such circumstances. 

Another question is how to treat the 

excess emissions that occur during a 

startup or shutdown that is necessitated 


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by the malfunction and are thus 

potentially components of the 

malfunction event. The EPA believes 

that drawing the distinction between 

what is directly caused by the 

malfunction itself and what is indirectly 

caused by the malfunction as a part of 

non-routine startup and shutdown must 

always be a case-specific enquiry, 

dependent upon the facts and 

circumstances of the specific event. It is 

foreseeable that a shutdown 

necessitated by a malfunction could be 

considered part of the malfunction 

event with the appropriate 

demonstration of the need to shut down 

differently than during a routine 

shutdown, during which a source 

should be expected to comply with 

applicable emission limitations. It is 

possible, however, that a routine 

shutdown may be achievable following 

a malfunction event, and a source 

should be expected to strive for this 

result. With respect to startups after a 

malfunction event, the EPA believes 

that such startups should not be 

considered part of the malfunction, 

because startups are within the control 

of the source. Malfunctions should have 

been resolved prior to startup, and the 

source should be designed, operated, 

and maintained so that it would meet 

emission limitations during startups. As 

a general matter, the EPA does not 

anticipate that there would be startups 

that would follow a malfunction that 

should be considered part of the 

malfunction event, but in this action the 

EPA is requesting that commenters 

address this issue if there could be 

circumstances that would justify such 

treatment. 

Finally, the EPA reiterates that an 

affirmative defense provision in a SIP 

cannot extend to direct federal 

regulations such as New Source 

Performance Standards (NSPS) or 

NESHAP that the air agency may elect 

to adopt into its SIP, or to incorporate 

by reference into its SIP in order to 

receive delegation of federal authority. 

To the extent that any affirmative 

defense is warranted during 

malfunctions for these technology-based 

standards, the federal standards 

contained in the EPA’s regulations 

already specify the appropriate 

affirmative defense. No additional or 

different affirmative defense provision 

applicable through a SIP provision 

would be warranted or appropriate. 

C. Affirmative Defense Provisions 

During Periods of Startup and 

Shutdown 

The EPA’s evaluation of the Petition 

indicates that revisions to the SSM 

Policy are necessary with respect to 

affirmative defense provisions during 

startup and shutdown periods. In the 

1999 SSM Guidance, the EPA explicitly 

discussed the possibility of affirmative 

defenses in the context of startup and 

shutdown, and provided recommended 

criteria to ensure that any such 

affirmative defense provisions in a SIP 

submission would be appropriately 

narrowly drawn to comply with CAA 

requirements. As with affirmative 

defense provisions for malfunctions, the 

EPA then believed that achieving a 

balance between the requirement of the 

statute for emission limitations that 

apply continuously and the possibility 

that not all sources can comply 100 

percent of the time justified such 

affirmative defenses during startup and 

shutdown as a means of providing some 

flexibility while still supporting the 

overall objectives of the CAA. 

Review of the Petition and 

reconsideration of this question in light 

of recent case law concerning emission 

limitations and affirmative defenses has 

caused the EPA to alter its view on the 

appropriateness of affirmative defenses 

applicable to planned events such as 

startup and shutdown. The EPA 

believes that sources should be 

designed, maintained, and operated in 

order to comply with applicable 

emission limitations during normal 

operations. By definition, planned 

events such as startup and shutdown are 

phases of normal source operation. 

Because these events are modes of 

normal operation, the EPA believes that 

sources should be expected to comply 

with applicable emission limitations 

during such events. 

Unlike malfunctions, startup and 

shutdown are not unexpected events 

and are not events that are beyond the 

control of the owner or operator of the 

source. Also unlike malfunctions, it is 

possible for the source to anticipate the 

amount of emissions during startup and 

shutdown, to take appropriate steps to 

limit those emissions as needed, and to 

remain in continuous compliance. In 

the event that a source in fact cannot 

comply with the otherwise applicable 

emission limitations during normal 

modes of source operation due to 

technological limitations, then it may be 

appropriate for the state to provide 

special emission limitations or control 

measures that apply to the source 

during startup and shutdown. 

The EPA acknowledges that the 

availability of an affirmative defense for 

planned startup and shutdown as 

contemplated in the 1999 SSM 

Guidance may have provided extra 

incentive for sources to take extra 

precautions to minimize emissions 

during startup and shutdown in order to 

be eligible for the affirmative defense in 

the event of a violation. However, 

sources should not need extra incentive 

to comply during normal modes of 

operation such as startup and 

shutdown, as they should be designed, 

operated, and maintained in order to 

comply with applicable emission 

limitations at all times, and certainly 

during planned and predictable events. 

By logical extension, the theory that an 

affirmative defense should be available 

during planned startup and shutdown 

could apply to all phases of normal 

source operation, which would not be 

appropriate. 

The EPA believes that providing 

affirmative defenses for violations that 

occur as a result of planned events 

within the control of the owner or 

operator of the source is inconsistent 

with the requirements of CAA sections 

113 and 304, which provide for 

potential civil penalties for violations of 

SIP requirements. The distinction that 

makes affirmative defenses appropriate 

for malfunctions is that by definition 

those events are unforeseen and could 

not have been avoided by the owner or 

operator of the source, and the owner or 

operator of the source will have taken 

steps to prevent the violation and to 

minimize the effects of the violation 

after it occurs. In such circumstances, 

the EPA interprets the CAA to allow 

narrowly drawn affirmative defense 

provisions that may shield owners or 

operators of sources from civil penalties, 

when their conduct justifies this relief. 

Such is not the case with planned and 

predictable events, such as startup and 

shutdown, during which the owners or 

operators of sources should be expected 

to comply with applicable emission 

limitations and should not be accorded 

relief from civil penalties if they fail to 

do so. Providing an affirmative defense 

for monetary penalties for violations 

that result from planned events is 

inconsistent with the basic premise that 

the excess emissions were beyond the 

control of the owner or operator of the 

source and thus is diametrically 

opposed to the intended purpose of 

such an affirmative defense to 

encourage better compliance even by 

sources for which 100-percent 

compliance is not possible. The EPA 

notes that enforcement discretion may 

still be warranted in such 

circumstances, but the elimination of 

potential civil penalties is not 

appropriate. For these reasons, the EPA 

is proposing to rescind its prior 

interpretation of the CAA that would 


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58 In accordance with CAA section 113(e), sources 

retain the ability to seek lower monetary penalties 

through the factors provided for consideration in 

administrative or judicial enforcement proceedings. 

In this context, for example, a violating source 

could argue that factors such as good faith efforts 

to comply should reduce otherwise applicable 

statutory penalties. 

59See, 40 CFR sections 70.1–70.12; 40 CFR 

sections 71.1–71.27. 

60See, 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 (Nov. 1, 

2001). 

61See, 40 CFR 70.6(g)(1); 40 CFR 71.6(g)(1). 

62 1999 SSM Guidance at Attachment p. 1 and 

footnote 6. The term ‘‘malfunction’’ means ‘‘a 

sudden and unavoidable breakdown of process or 

control equipment.’’ The malfunction events that 

may be suitable for an affirmative defense are those 

that are ‘‘caused by circumstances entirely beyond 

the control of the owner or operator.’’ The EPA 

notes that by definition emergencies do not include 

normal source operation such as startup, shutdown, 

or maintenance. 

63 40 CFR 70.6(g)(3); 40 CFR 71.6(g)(3). 

64See, e.g., Petition at 24. The Petitioner 

identified a provision in the Arkansas SIP that 

appears to be closely modeled on 40 CFR 70.6(g). 

65 1999 SSM Guidance at Attachment pp. 3–4. 

66 1999 SSM Guidance at Attachment p. 3. 

allow affirmative defense provisions 

during planned startup and shutdown.58

D. Relationship Between SIP Provisions 

and Title V Regulations 

The EPA’s review of the Petition has 

highlighted an area of potential 

ambiguity or conflict between the SSM 

Policy applicable to SIP provisions and 

the EPA’s regulations applicable to title 

V 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.59 Under each set of 

regulations, the EPA has provided that 

permits may contain, at the permitting 

authority’s discretion, an ‘‘emergency 

provision.’’ 60 The relationship between 

such an ‘‘emergency provision’’ in a 

permit applicable to a source and the 

SIP provisions applicable to the same 

source with respect to excess emissions 

during a malfunction event warrants 

explanation. 

The regulatory parameters applicable 

to such emergency provisions in 

operating permits are the same for both 

state operating permit programs 

regulations and the federal operating 

permit program regulations. The 

definition of emergency is identical in 

the regulations for each program: 

An ‘‘emergency’’ means any situation 

arising from sudden and reasonably 

unforeseeable events beyond the control of 

the source, including acts of God, which 

situation requires immediate corrective 

action to restore normal operation, and that 

causes the source to exceed a technologybased emission limitation under the permit, 

due to unavoidable increases in emissions 

attributable to the emergency. An emergency 

shall not include noncompliance to the 

extent caused by improperly designed 

equipment, lack of preventative maintenance, 

careless or improper operation or operator 

error.61

Thus, the definition of ‘‘emergency’’ in 

these title V regulations is similar to the 

concept of ‘‘malfunctions’’ in the EPA’s 

SSM Policy for SIP provisions, but it 

uses somewhat different terminology 

concerning the nature of the event and 

restricts the qualifying exceedances to 

‘‘technology-based’’ emission 

limitations.62 Some SIP provisions may 

also be ‘‘technology-based’’ emission 

limitations and thus this terminology in 

the operating permit regulations may 

engender some potential inconsistency 

with the SSM Policy. 

If there is an emergency event meeting 

the regulatory definition, then the EPA’s 

regulations for operating permits 

provide that the source can assert an 

‘‘affirmative defense’’ to enforcement for 

noncompliance with technology-based 

standards during the emergency event. 

In order to establish the affirmative 

defense, the regulations place the 

burden of proof on the source to 

demonstrate through specified forms of 

evidence that: 

(i) An emergency occurred and that 

the permittee can identify the cause(s) 

of the emergency; 

(ii) The permitted facility was at the 

time being properly operated; 

(iii) During the period of the 

emergency the permittee took all 

reasonable steps to minimize levels of 

emissions that exceeded the emission 

standards, or other requirements in the 

permit; and 

(iv) The permittee submitted notice of 

the emergency to the permitting 

authority within 2 working days of the 

time when emission limitations were 

exceeded due to the emergency. This 

notice fulfills the requirement of either 

paragraph 40 CFR 70.6(a)(3)(iii)(B) or 40 

CFR 71.6(a)(3)(iii)(B). This notice must 

contain a description of the emergency, 

any steps taken to mitigate emissions, 

and corrective actions taken.63

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. 

However, the Petitioner did identify a 

number of specific SIP provisions that 

indirectly relate to this issue because 

the state may have modeled its SIP 

provision, at least in part, on the EPA’s 

operating permit regulations.64 In those 

instances, the state in question 

presumably intended to create an 

affirmative defense applicable during 

malfunctions appropriate for SIP 

provisions, but by using the terminology 

used in the operating permit 

regulations, the state has created 

provisions that are not permissible in 

SIPs. 

The elements for the affirmative 

defense in the title V permit regulations 

are similar to the criteria recommended 

in the SSM Policy for SIP provisions 

applicable to malfunctions. However, 

the elements for the affirmative defense 

provisions in operating permits do not 

explicitly include some of the criteria 

that the EPA believes are necessary in 

order to make such a provision 

appropriate in a SIP provision. For 

example, the EPA recommends that 

approvable SIP provisions include an 

affirmative duty for the source to 

establish that the malfunction was ‘‘not 

part of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance.’’ 65 In addition, the 

regulations applicable to operating 

permits use somewhat different 

terminology for the elements of the 

defense, such as providing that the 

emergencies were ‘‘sudden and 

reasonably unforeseeable events beyond 

the control of the source,’’ whereas the 

EPA’s SSM Policy describes 

malfunctions as events that ‘‘did not 

stem from any activity or event that 

could have been foreseen and avoided, 

or planned for.’’ 66 Again, the use of 

somewhat different terminology about 

the elements the source must establish 

in order to qualify for an affirmative 

defense may engender some potential 

inconsistency with the EPA’s SSM 

Policy. 

Although the differing regulatory 

terminology with respect to the nature 

of the event or the elements necessary 

to establish an affirmative defense may 

not ultimately be significant in practical 

application in a given enforcement 

action, there are two additional ways in 

which incorporation of the text of the 

regulatory provisions in 40 CFR 70.6(g) 

and 40 CFR 71.6(g) into a SIP is 

potentially more directly in conflict 

with the SSM Policy. First, these 

provisions do not explicitly limit the 

affirmative defense only to civil 

penalties available under the CAA for 

violations of emission limitations. Each 

provision states only that an 


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67 40 CFR 70.6(g)(2); 40 CFR 71.6(g)(2). 

68Because title V requires that a source have a 

permit that ‘‘assure[s] compliance with applicable 

[CAA] requirements,’’ CAA section 504(a), it 

follows that the title V emergency provision itself 

can best be read to provide only an affirmative 

defense against civil penalties and not against 

injunctive relief. See also, ‘‘National Emission 

Standards for Hazardous Air Pollutant Emissions 

for Primary Lead Processing; Final Rule,’’ 76 FR 

70834 at 70838/2 (Nov. 15, 2011) (explaining why 

limiting affirmative defenses to civil penalties 

conforms with the purposes of the CAA and 

existing case law). 

69 40 CFR 70.6(g)(5); 40 CFR 71.6(g)(5). 

70 1999 SSM Guidance at Attachment p. 3, 

footnote 6. The EPA explained that to the extent a 

state elected to include federal technology-based 

standards into its SIP, such as NSPS or NESHAPs, 

the standards should not deviate from those 

standards as promulgated. Because the EPA has 

already taken into account technological limitations 

in setting the standards, additional exemptions or 

affirmative defenses would be inappropriate. 

71See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 (Apr. 

18, 2011) (the EPA issued a SIP call because, inter 

alia, the SIP provision applied to NSPS and 

NESHAP); US Magnesium, LLC v. EPA, 690 F.3d 

1157 (10th Cir. 2012) (upholding the SIP call). 

‘‘emergency constitutes an affirmative 

defense to an action brought for 

noncompliance’’ if the source proves 

that it meets the conditions for the 

affirmative defense.67 Given this lack of 

an explicit limitation, it could be argued 

that SIP provisions that copy the 

wording of 40 CFR 70.6(g) and 40 CFR 

71.6(g) are not limited to civil 

penalties.68 Such a reading would be 

inconsistent with the EPA’s view that 

affirmative defenses in SIP provisions 

are only consistent with the CAA if they 

apply to civil penalties and not to 

injunctive relief. The EPA believes it is 

essential for SIPs to ensure that 

injunctive relief is available should a 

court determine that such relief is 

necessary to prevent excess emissions in 

the future. 

Second, these operating permit 

regulatory provisions state that they are 

‘‘in addition to any emergency or upset 

provision contained in any applicable 

requirement.’’ 69 The EPA’s view is that 

federal technology-based standards 

already include the appropriate 

affirmative defense provisions, if any, 

and that creation of additional 

affirmative defenses via a SIP provision 

is impermissible.70 Thus, SIP provisions 

that add to or alter the terms of any 

federal technology-based standards 

would be substantially inadequate to 

meet CAA requirements.71

In this action, the EPA is taking action 

to evaluate the specific SIP provisions 

identified in the Petition and is 

proposing to make a finding of 

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. First, consistent with its 

longstanding interpretation of the CAA 

with respect to SIP requirements, the 

EPA believes that approvable 

affirmative defenses in a SIP provision 

can only apply to civil penalties, not to 

injunctive relief. Second, approvable 

affirmative defenses in a SIP provision 

should reflect the recommended criteria 

in the EPA’s SSM Policy to assure that 

sources only assert affirmative defenses 

in appropriately narrow circumstances. 

Third, approvable affirmative defenses 

in a SIP provision cannot operate to 

create different or additional defenses 

from those that are provided in 

underlying federal technology-based 

emission limitations, such as NSPS or 

NESHAP. SIPs are comprised of 

emission limitations that are intended to 

provide for attainment and maintenance 

of the NAAQS, protection of PSD 

increments, protection of visibility, and 

other CAA objectives. Thus, the EPA 

believes that only narrowly drawn 

affirmative defense provisions, as 

recommended in its SSM Policy, are 

consistent with these overarching SIP 

requirements of the CAA. 

E. 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 

proposed action on the Petition, of its 

proposed clarifications and revisions to 

the SSM Policy, and ultimately of its 

final action on the Petition. 

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 

disapproval of the Petitioner’s request 

that the EPA disallow all affirmative 

defense provisions for excess emissions 

during malfunctions is intended to 

convey that the EPA has not changed its 

views that such provisions can be 

consistent with CAA requirements for 

SIPs with respect to malfunctions. 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 existing 

permit terms or conditions regarding 

excess emissions during SSM events 

that reflect previously approved SIP 

provisions. In the event that the EPA 

finalizes a proposed finding of 

substantial inadequacy and a SIP call for 

a given state, the state will have 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 that the 

final notice for this action after 

considering public comments will 

embody 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 proposing to add to and clarify 

its prior statements in the 1999 SSM 

Guidance and to make the specific 


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72The 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. 

73See, 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)(20)(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 (Dec. 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 (Apr. 18, 2011) (the EPA issued a SIP 

call to rectify SIP provisions dating back to 1980). 

74See, 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 (Oct. 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 

(Apr. 18, 2011) (the EPA issued a SIP call to one 

state requiring it to rectify several very specific SIP 

provisions). 

changes to that guidance as discussed in 

this action. Thus, the 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: 

(5) Calls for plan revisions 

Whenever 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.’’ 72

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.73 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 

required to constitute a ‘‘reasonably 

available control measure’’ in CAA 

section 172(c)(1), and the other 

applicable requirements of the 

implementation regulations for 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.74 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 


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75See, 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). 

76The 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 fails 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 (Dec. 13, 2010). 

77See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 at 

21641 (Apr. 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). 

78Courts 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 

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. 

79See, 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). 

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.75 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.76

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.77 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.78 If a court could 

construe the ambiguous SIP provision to 

bar enforcement, 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.79

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 

appear to be inconsistent with the CAA 

and the EPA’s SSM Policy. 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 

SIP provision is as the Petitioner 

describes it. 

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 protection of the NAAQS 

and PSD increments and fail to meet 

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 


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80The 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. 

81Section 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 (Jan. 26, 2011); 

‘‘Corrections to the California State Implementation 

Plan,’’ 69 FR 67062 at 67063 (Nov. 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’’). 

82See, 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 

Continued 

limitations must be ‘‘continuous.’’ 

Automatic exemptions from otherwise 

applicable emission limitations thus 

render those limits less than continuous 

as required by CAA sections 

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 basic building 

blocks for SIPs, 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. All of 

these uses typically assume continuous 

source compliance with applicable 

emission limitations. 

Because the NAAQS are not directly 

enforceable against individual sources, 

air agencies rely on the adoption and 

enforcement of these generic and 

specific emission limits in SIPs in order 

to provide for attainment and 

maintenance of the NAAQS, protection 

of PSD increments, protection of 

visibility, and 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 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.80 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 

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 provisions of 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.81 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 is 

acceptable by name, 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.82 A SIP provision that 


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such revisions have been approved by the 

Administrator in accordance with this part.’’). 

83See, e.g., ‘‘Approval and Disapproval and 

Promulgation of Air Quality Implementation Plans; 

Colorado; Revisions to Regulation 1,’’ 76 FR 4540 

(Jan. 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,’’ 74 FR 

57051 (Nov. 3, 2009) (direct final rulemaking to 

remove, pursuant to CAA section 110(k)(6), 

variance provisions from Arizona and Nevada SIPs). 

84See, e.g., ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 75 FR 70888 at 

70892 (Nov. 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. 

85See, 1999 SSM Guidance at 3. 

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. 

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.83 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 

consistent with CAA requirements, then 

the provisions must be structured so 

that any resulting variances or other 

deviations from the 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 

provide sufficient process or sufficient 

bounds on the exercise of director’s 

discretion to be permissible. Most on 

their face would allow potentially 

limitless exemptions 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 from the 

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 mechanism of 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. 

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 

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.84

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.85 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, 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 


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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 operated to eliminate 

the authority of the EPA or the public 

to pursue enforcement actions because 

the air agency elects not to, 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 Deficient 

Affirmative Defense Provisions 

The EPA believes that SIP provisions 

that provide inappropriate affirmative 

defenses for excess emissions during 

SSM events are substantially inadequate 

to meet CAA requirements. A typical 

SIP provision that includes an 

impermissible affirmative defense 

provision could contain several 

deficiencies simultaneously, even 

though it may superficially resemble 

such a defense and actually contain the 

term ‘‘affirmative defense.’’ There are a 

number of ways in which such 

provisions can be deficient, including: 

(i) Extending the affirmative defense to 

injunctive relief; (ii) not including 

sufficient criteria to make the 

affirmative defense appropriately 

narrow; (iii) imposing the affirmative 

defense provision on federal 

technology-based emission limitations 

in the SIP; and (iv) providing an 

affirmative defense to startup, 

shutdown, or other planned and routine 

modes of source operation. 

First, the EPA interprets the CAA to 

allow only those affirmative defense 

provisions that provide a potential for 

relief from civil penalties and not those 

that provide relief from injunctive relief 

as well. As explained in more detail in 

section IV of this notice, the EPA 

interprets the provisions of CAA section 

110(a) to allow affirmative defenses only 

in certain narrow circumstances, as a 

means of balancing the obligations of 

sources to meet emission limitations 

continuously as required by CAA 

section 302(k) with the practical reality 

that despite the most diligent of efforts, 

a source may violate emission standards 

under certain limited circumstances 

beyond the source’s control. For sources 

that meet the conditions for an 

affirmative defense, the EPA believes 

that it is appropriate to provide relief 

only from monetary penalties. This 

limitation assures that the EPA and air 

agencies remain able to meet 

fundamental CAA requirements such as 

attainment and maintenance of the 

NAAQS, protection of PSD increments, 

protection of visibility, and other CAA 

requirements. 

By contrast, because SIP provisions 

are intended to meet fundamental CAA 

objectives including attainment and 

maintenance of the NAAQS, it would be 

inappropriate to eliminate the 

availability of injunctive relief for 

violations, in order to ensure that the 

necessary emissions reductions could be 

obtained through changes at the source 

or in source operation should that be 

necessary. In this way, the EPA believes 

that affirmative defense provisions 

applicable only to monetary penalties 

can meet the requirements of CAA 

sections 110(a) and 302(k) and the 

enforcement structure provided in CAA 

sections 113 and 304. Failure to 

preserve the availability of injunctive 

relief for violations would thus be 

substantially inadequate to meet CAA 

requirements. 

Second, the EPA interprets the CAA 

to allow only those affirmative defense 

provisions that are narrowly drawn to 

provide relief under appropriate 

circumstances where the event was 

entirely beyond the control of the owner 

or operator of the source and for which 

the source must have taken all 

practicable steps to prevent and to 

minimize the excess emissions that 

result from the event. Through the 

criteria in the 1999 SSM Guidance, the 

EPA has recommended the conditions 

that it considers appropriate for an 

approvable SIP provision in order to 

ensure that the affirmative defense is 

available to sources that warrant relief 

from monetary penalties otherwise 

required by the CAA. Affirmative 

defense provisions that are consistent 

with these criteria would be 

appropriately narrowly drawn. 

Affirmative defense provisions that do 

not address these criteria adequately, 

however, would potentially shield a 

source from CAA statutory penalties in 

circumstances that are not warranted. 

For example, an affirmative defense 

provision that did not impose a burden 

upon the source to establish that the 

violation was not the result of an event 

that could have been prevented through 

proper maintenance would not serve to 

encourage better maintenance. 

Similarly, an affirmative defense 

provision that failed to impose a burden 

upon the source to establish that it took 

all possible steps to minimize the effect 

of the violation on ambient air quality, 

the environment, and human health, 

would not serve to encourage diligence 

in rectifying the malfunction as quickly 

and effectively as possible. By 

addressing the recommended criteria 

adequately, a state can develop a narrow 

provision that appropriately balances 

the requirement for continuous 

compliance against the reality that there 

may be limited circumstances beyond 

the source’s control that justify relief 

from monetary penalties. The EPA 

believes that failure to have an 

affirmative defense provision that is 

sufficiently narrowly drawn would fail 

to meet the requirements of CAA 

sections 110(a) and 302(k) and the 

enforcement structure provided in CAA 

sections 113 and 304. Failure to have a 

sufficiently narrow affirmative defense 

would thus be substantially inadequate 

to meet CAA requirements. 

Third, the EPA interprets the CAA to 

preclude SIP provisions that would 

create affirmative defense provisions 

applicable to federal regulations that an 

air agency may have copied into its SIP 

or incorporated by reference in order to 

take credit for resulting emissions 

reductions for SIP planning purposes or 

to receive delegation of federal 

authority, such as NSPS or NESHAP. To 

the extent that any affirmative defense 

appropriate for these technology-based 

standards is warranted, the federal 

standards contained in the EPA’s 

regulations already specify the 

appropriate affirmative defense. 

Creating affirmative defenses that do not 

exist in such federal technology-based 

standards, or providing different 

affirmative defenses in addition to those 

that do exist, would be inappropriate. 

Similarly, reliance on inappropriate 

affirmative defenses in the context of 

PSD permitting or nonattainment New 

Source Review (NSR) permitting 

programs could likewise be problematic. 

Fourth, the EPA interprets the CAA to 

allow only affirmative defense 

provisions that are available for events 

that are entirely beyond the control of 

the owner or operator of the source. 

Thus, an affirmative defense may be 

appropriate for events like 

malfunctions, which are sudden and 

unavoidable events that cannot be 

foreseen or planned for. The underlying 

premise for an affirmative defense 

provision is that the source is properly 

designed, operated, and maintained, 

and could not have taken action to 

prevent the exceedance. Because the 

qualifying source could not have 

foreseen or prevented the event, the 

affirmative defense is available to 

provide relief from monetary penalties 

that could result from an event beyond 

the control of the source. 

The legal and factual basis that 

supports the concept of an affirmative 

defense for malfunctions does not 

support providing and an affirmative 

defense for normal modes of operation 


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12488 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

86CAA section 110(c)(1)(A). 

87The 2-year deadline does not necessarily apply 

to FIPs following disapproval of a tribal 

implementation plan. 

88See, ‘‘Selection of Sequence of Mandatory 

Sanctions for Findings Made Pursuant to Section 

179 of the Clean Air Act,’’ 59 FR 39832 (Aug. 4, 

1994), codified at 40 CFR 52.31. 

like startup and shutdown. Such events 

are planned and predictable. The source 

should be designed, operated, and 

maintained to comply with applicable 

emission limitations. Because startup 

and shutdown periods are part of a 

source’s normal operations, the same 

approach to compliance with, and 

enforcement of, applicable emission 

limitations during those periods should 

apply as otherwise applies during a 

source’s normal operations. If justified, 

the state can develop special emission 

limitations or control measures that 

apply during startup and shutdown if 

the source cannot meet the otherwise 

applicable emission limitations in the 

SIP. 

Even if a source is a suitable 

candidate for distinct SIP emission 

limitations during startup and 

shutdown, however, that does not 

justify the creation of an affirmative 

defense in the case of excess emissions 

during such periods. Because these 

events are planned, the EPA believes 

that sources should be able to comply 

with applicable emission limitations 

during these periods of time. To provide 

an affirmative defense for violations that 

occur during planned and predictable 

events for which the source should have 

been expected to comply is tantamount 

to providing relief from civil penalties 

for a planned violation. The EPA 

believes that affirmative defense 

provisions that include periods of 

normal source operation that are within 

the control of the owner or operator of 

the source, such as planned startup and 

shutdown, would be inconsistent with 

the requirements of CAA sections 110(a) 

and 302(k) and the enforcement 

structure provided in CAA sections 113 

and 304. An affirmative defense 

provision that expands the availability 

of the defense to planned events such as 

startup and shutdown would thus be 

substantially inadequate to meet CAA 

requirements. 

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 the state to submit a 

corrective SIP submission 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 

agency, affected sources, and members 

of the public all are adequately 

informed and afforded the opportunity 

to participate in the process. Through 

this proposal notice and the later final 

notice, the EPA intends to provide a full 

evaluation of the issues raised by the 

Petition and to use this process as a 

means of giving clear guidance 

concerning SIP provisions relevant to 

SSM events that are consistent with 

CAA requirements. 

If the state fails to submit the 

corrective SIP revision by the deadline 

that the EPA finalizes as part of the SIP 

call, CAA section 110(c) authorizes the 

EPA to ‘‘find[] that [the] State has failed 

to make a required submission.’’ 86 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 finalizes a SIP call and then finds 

that the air agency failed to submit a 

complete SIP revision that responds to 

the 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.87

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 final 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 new source review 

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.88 As the EPA has done in 

other SIP calls, the EPA proposes that 

the 2-to-1 emission offset requirement 

will apply for all new sources subject to 

the nonattainment new source review 

program 18 months following such 

finding or disapproval unless the state 

corrects the deficiency before that date. 

The EPA proposes that the highway 

funding restrictions sanction will also 

apply 24 months following such finding 

or disapproval unless the state corrects 

the deficiency before that date. The EPA 

is proposing that the provisions in 40 

CFR 52.31 regarding staying the 

sanctions clock and deferring the 

imposition of sanctions would also 

apply. 

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, typically 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 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 all 

NAAQS within the state. In this case, 

the EPA will evaluate the geographic 

scope of potential sanctions at the time 

it makes a final determination whether 

the state’s SIP is substantially 

inadequate and issues a SIP call, as this 


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89See, Virginia, et al. 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). 

90Notwithstanding 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, et al. 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). 

may vary depending upon the 

provisions at issue. 

C. SIP Call Timing Under Section 

110(k)(5) 

If the EPA finalizes a proposed 

finding of substantial inadequacy and a 

proposed 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 up to 18 

months from the date of the final 

finding of inadequacy. 

The EPA is proposing that if it 

promulgates a final finding of 

inadequacy and a SIP call for a state, the 

EPA will establish a date 18 months 

from the date of promulgation of the 

final finding for the state to respond to 

the SIP call. If, for example, the EPA’s 

final findings are signed and 

disseminated in August 2013, then the 

SIP submission deadline for each of the 

states subject to the final SIP call would 

fall in February 2015. 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 proposing 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 maximum time allowable 

under CAA section 110(k)(5) in order to 

allow states sufficient time to make SIP 

revisions following their own SIP 

development process. The EPA 

considers this a reasonable time period 

for the affected states to revise their 

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. 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. 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 Office as they develop the SIP 

revisions. 

The EPA notes that the SIP calls that 

it is proposing for affected states in this 

action would be narrow and apply 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. 

Finally, the EPA notes 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 in response to the SIP call. Under 

principles of cooperative federalism, the 

CAA vests air agencies with substantial 

discretion to develop SIP provisions, so 

long as the provisions meet the legal 

requirements and objectives of the 

CAA.89 Thus, the issuance of a SIP call 

should not be misconstrued as a 

directive to the state in question to 

adopt a particular control measure. The 

EPA is merely proposing to require that 

affected states make a SIP revision 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.90

IX. What is the EPA proposing for each 

of the specific SIP provisions identified 

in the petition? 

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. As the EPA acknowledges in 

section II.A of this notice, 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 in 

the Petition for multiple states, there are 

some overarching conceptual points that 

merit discussion in general terms before 

delving into the facts and circumstances 

of the specific SIP provisions in each 

state. The EPA solicits comment on all 

aspects of this proposal. 

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 startup, 

shutdown, or malfunction. 

Occasionally, these provisions also 

pertain to exemptions for excess 

emission 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 startup, shutdown, and 

malfunction, so that the excess 

emissions are defined as not violations. 

Often, 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 

proposes to determine that a number of 

states have existing SIP provisions that 

create impermissible automatic 

exemptions for excess emissions during 


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91By definition, an affirmative defense provision 

in a SIP provides a source with a defense to assert 

in an enforcement proceeding. The source has the 

ability to establish whether or not it has met the 

legal and factual parameters for such affirmative 

defense, and that question will be decided by the 

trier of fact in the proceeding. The relevant 

circumstances in such a proceeding would thus 

include issues relevant to the parameters for 

affirmative defense provisions, as enumerated in 

section VII.B of this notice. 

malfunctions or during startup, 

shutdown, or other types of normal 

source operation. In those instances 

where the EPA agrees that a SIP 

provision identified by the Petitioner 

contains such an exemption contrary to 

the requirements of the CAA, the EPA 

is proposing 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 

non-violation, thereby barring 

enforcement by the EPA or others. 

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 discussed in sections VIII.A and 

IX of this notice, 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 (see section IX of 

this notice) are especially inappropriate 

because they purport to allow 

discretionary creation of case-by-case 

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 agrees that 

a SIP provision identified by the 

Petitioner contains such a discretionary 

exemption contrary to the requirements 

of the CAA, the EPA is proposing 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 has 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 agrees 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 is proposing to 

grant the Petition and to take action to 

rectify the problem. By contrast, where 

the EPA’s evaluation indicates 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 is proposing to 

deny the Petition, and the EPA is taking 

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 

should serve 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. 

The EPA notes 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 current view is that they 

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. Adequacy of Affirmative Defense 

Provisions 

In addition to its overarching request 

that the EPA revise its interpretation of 

the CAA and forbid any form of 

affirmative defense, the Petitioner also 

identified specific existing affirmative 

defense provisions in SIPs that the 

Petitioner contended are not consistent 

with the EPA’s SSM Policy. In general, 

these provisions are structured as 

affirmative defense provisions, but the 

Petitioner expressed concern that they 

fail to address some or all of the criteria 

for such provisions that the EPA 

recommended in the 1999 SSM 

Guidance. 

In reviewing the claims of the 

Petitioner with respect to this type of 

alleged SIP inadequacy, the EPA is 

reevaluating each of the challenged 

affirmative defense provisions on the 

merits to determine whether it provides 

the types of assurances that the EPA has 

recommended as necessary to meet CAA 

requirements. As the SSM Policy is 

guidance, it does not require any 

particular approach, but it does reflect 

the EPA’s interpretation of the CAA 

with respect to what could constitute an 

acceptable affirmative defense 

provision. For each of these provisions 

identified by the Petitioner, the EPA 

proposes to grant or to deny the 

Petition, based on the EPA’s evaluation 

as to whether the provision at issue 

provides adequate criteria to provide 

only a narrow affirmative defense for 

sources under certain circumstances 

consistent with the overarching CAA 

objectives, such as attaining and 

maintaining the NAAQS.91 In addition, 

as discussed in section VII.C of this 


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92See, 1999 SSM Guidance at 4, and Attachment 

at 2, 3, and 5. Footnote 2 to that document 

articulates the reasoning behind the EPA’s 

recommendation against such provisions, at least 

for some sources and for some NAAQS. 

93Petition at 43–44. 

94Petition at 44. 

95Petition at 44. 

notice, the EPA is also proposing to 

grant the Petition with respect to any 

identified provision that creates an 

affirmative defense applicable during 

planned startup and shutdown events, 

because such provisions are not 

consistent with the requirements of the 

CAA. 

5. Affirmative Defense Provisions 

Applicable to a ‘‘Source or Small Group 

of Sources’’ 

The Petitioner specifically objected to 

existing provisions in SIPs for a few 

states that allow an affirmative defense 

for certain categories of sources to be 

based on an after-the-fact showing that 

the excess emissions during a particular 

SSM event did not cause a violation of 

the NAAQS or PSD increments. The 

Petitioner argued that these affirmative 

defense provisions are inconsistent with 

the CAA and with the EPA’s own 

recommendations for affirmative 

defenses in the SSM Policy, because the 

provisions provide the possibility for an 

affirmative defense to be used by 

sources that would fall into the category 

of ‘‘a source or small group of sources 

that has the potential to cause an 

exceedance of the NAAQS or PSD 

increments.’’ 92

The EPA acknowledges that its 1999 

SSM Guidance recommended against 

affirmative defense provisions in SIPs 

for sources that have the potential, 

either individually or in small groups, 

to have excess emissions during SSM 

events that could cause a violation of 

the NAAQS or PSD increments. The 

EPA recommended that states utilize an 

enforcement discretion approach, rather 

than create an affirmative defense 

provision, for such sources. However, 

the EPA’s SSM Policy is guidance, and 

the facts and circumstances of a 

particular situation may justify adopting 

a different approach. The EPA has 

evaluated each of the affirmative 

defense provisions identified by the 

Petitioner on the facts and 

circumstances of the particular 

provision. For each of these provisions, 

the EPA proposes to grant or to deny the 

Petition, based on an evaluation of 

whether the specific provision at issue 

in an individual SIP contains adequate 

criteria to achieve the objective of 

providing only a narrow affirmative 

defense for sources under certain 

circumstances consistent with the 

overarching CAA objectives, such as 

attaining and maintaining the NAAQS. 

The criteria that the EPA recommends 

for an affirmative defense provision for 

malfunctions to be consistent with CAA 

requirements are restated in this notice 

at section VII.B, which also highlights 

EPA’s view concerning case-by-case 

approval of affirmative defenses in the 

case of geographic areas and pollutants 

‘‘where a single source or small group 

of sources has the potential to cause an 

exceedance of the NAAQS or PSD 

increments.’’ 

B. Affected States in EPA Region I 

1. Maine 

a. Petitioner’s Analysis 

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).93 The provision exempts violations 

of the otherwise applicable SIP emission 

limitations for boilers over a certain 

rated input capacity ‘‘during the first 4 

hours following the initiation of cold 

startup or planned shutdown.’’ The 

Petitioner recognized that this provision 

might operate as an affirmative defense 

because the exemption is only available 

once the person claiming an 

‘‘exemption’’ establishes that the facility 

was being run to minimize emissions. 

The provision does not make clear who 

is authorized to determine whether the 

visible emission limits apply. The 

Petitioner argued that one plausible 

interpretation of this provision is that 

state officials are ‘‘authorized to decide 

that the exemption applies and therefore 

preclude enforcement by the EPA and 

by citizens.’’ 94 The Petitioner argued 

that such an interpretation of this 

provision precluding enforcement by 

the EPA or citizens, both for civil 

penalties and injunctive relief, is 

forbidden by the EPA’s interpretation of 

the CAA. Accordingly, the Petitioner 

requested that this provision be 

eliminated from the SIP. 

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). The 

Petitioner noted that the provision 

‘‘clearly provides an exemption at the 

discretion of the department.’’ 95 The 

Petitioner argued that such a provision 

provides exemptions from the otherwise 

applicable SIP emission limitations, and 

such exemptions are inconsistent with 

the requirements of the CAA and the 

EPA’s SSM Policy. Further, the 

Petitioner argued that the provision 

precludes enforcement by the EPA or 

citizens, both for civil penalties and 

injunctive relief, and that the EPA’s 

interpretation of the CAA would forbid 

such a provision. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, or malfunctions are not 

violations of the applicable emission 

limitations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. The EPA believes that inclusion of 

such an exemption in 06–096–101 Me. 

Code R. § 3 from the otherwise 

applicable SIP emission limitation for 

violations during the first 4 hours 

following cold startup or planned 

shutdown of boilers with a rated input 

capacity of more than 200 million BTU 

per hour is a substantial inadequacy and 

renders this specific SIP provision 

impermissible. 

With respect to the Petitioner’s 

concern that this exemption could 

preclude enforcement by the EPA or 

citizens, the EPA agrees that this is one 

of the critical reasons why such a 

provision is impermissible under the 

CAA. By having a SIP provision that 

defines what would otherwise be 

violations of the applicable emission 

limitations as non-violations, the state 

has effectively negated the ability of the 

EPA or the public to enforce against 

those violations. 

The EPA also believes that even if 06– 

096–101 Me. Code R. § 3 is interpreted 

to allow the source to make the required 

demonstration only in the context of an 

enforcement proceeding, the conditions 

set forth in the provision do not render 

it an acceptable affirmative defense 

provision. As explained in sections IV 

and VII.C of this notice, the EPA 

believes that affirmative defenses are 

only permissible under the CAA in the 


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96Petition at 52–53. 

97Petition at 52. 

98Petition at 53. 

99Petition at 52–53. 

100Petition at 53. 

case of events that are beyond the 

control of the source, i.e., malfunctions. 

Affirmative defense provisions are not 

appropriate in the case of planned 

source actions, such as cold startup or 

planned shutdown, because sources 

should be expected to comply with 

applicable emission limitations during 

those normal planned and predicted 

modes of source operation. 

Finally, the EPA believes that 06– 

096–101 Me. Code R. § 4 is 

impermissible under the CAA as 

interpreted in the EPA’s SSM Policy as 

an unbounded director’s discretion 

provision. The provision authorizes a 

state official ‘‘to exempt emissions 

occurring during periods of unavoidable 

malfunction or unplanned shutdown 

from civil penalty under section 349, 

subsection 2.’’ Although the reference to 

section 349, subsection 2 is to a Maine 

state penalty provision, the EPA 

believes that the provision is unclear as 

written. This provision could be read to 

mean that once the state official has 

exempted excess emissions during 

malfunctions from otherwise applicable 

SIP limitations, those excess emissions 

are not subject to any penalties, 

including penalties under CAA section 

113. As discussed in section VII.A of 

this notice, such director’s discretion 

provisions are impermissible. Such an 

interpretation would make the state 

official the unilateral arbiter of whether 

the excess emissions in a given event 

constitute a violation, which could 

preclude enforcement by the EPA or the 

public who might disagree about 

whether enforcement action is 

warranted. Most importantly, however, 

the provision may be read to authorize 

the state official to create an exemption 

from the emission limitation, and such 

an exemption is impermissible in the 

first instance. The EPA believes that 

inclusion of an unbounded director’s 

discretion provision in 06–096–101 Me. 

Code R. § 4 is thus a substantial 

inadequacy and renders this specific SIP 

provision impermissible for this reason. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 06–096–101 Me. 

Code R. § 3. The EPA believes that this 

provision allows for exemptions from 

the otherwise applicable SIP emission 

limitations, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, by creating 

these impermissible exemptions, the 

state has defined violations in a way 

that would interfere with effective 

enforcement by the EPA and the public 

for excess emissions during these events 

as provided in CAA sections 113 and 

304. Even if the EPA were to consider 

06–096–101 Me. Code R. § 3 to provide 

an affirmative defense rather than an 

automatic exemption, the provision is 

not a permissible affirmative defense 

provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s recommendations in the 

EPA’s SSM Policy. 

The EPA also proposes to grant the 

Petition with respect to 06–096–101 Me. 

Code R. § 4. The EPA believes that this 

provision, as written, applies only to 

state penalties. However, the EPA is 

concerned that the provision could 

cause confusion among the public, the 

regulated community, and the courts, 

who might interpret the provision as 

applying to both state and federal 

penalties. Of course, such an 

interpretation would seem to allow for 

exemptions from otherwise applicable 

emission limitations through a state 

official’s unilateral exercise of 

unbounded discretionary authority and 

therefore be inconsistent with the 

fundamental requirements of the CAA 

with respect to SIPs and SIP revisions. 

To avoid any such misunderstanding, 

the EPA is proposing to find that these 

provisions are substantially inadequate 

to meet CAA requirements and thus 

proposing to issue a SIP call with 

respect to these provisions. 

2. New Hampshire 

a. Petitioner’s Analysis 

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.’’ 96 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. EnvA 902.04). The Petitioner argued that 

N.H. Code R. Env-A 902.03 is an 

impermissible automatic exemption 

because it ‘‘provides that if certain 

conditions existed during a period of 

excess emissions, then those 

exceedances would not be considered 

violations.’’ 97 The Petitioner argued 

that such exemptions are inconsistent 

with the requirements of the CAA and 

the EPA’s SSM Policy. The Petitioner 

argued that the CAA and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all such excess 

emissions be treated as violations. The 

Petitioner further argued that both N.H. 

Code R. Env-A 902.03 and N.H. Code R. 

Env-A 902.04 appear ‘‘to authorize the 

division to allow [exemptions], which 

could be interpreted to preclude 

enforcement by EPA or citizens’’ 98 for 

the excess emissions that would 

otherwise be violations of applicable 

SIP emission limitations. 

Second, the Petitioner objected to two 

specific provisions in the New 

Hampshire SIP which 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).99 The Petitioner recognized 

that EPA permits source categoryspecific emission limitations for startup 

and shutdown if certain conditions are 

met. The Petitioner argued, however, 

that ‘‘[o]f the seven criteria EPA 

considers adequate to justify a source 

specific emission limit during startup 

and shutdown, section 1207.02 arguably 

meets only one of them and section 

1203.05 meets none at all.’’ 100 The 

Petitioner thus requested that EPA 

require New Hampshire to remove both 

provisions from the SIP. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, or malfunctions are not 

violations are inconsistent with the 


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101See, 77 FR 50561 at 50608. 

102Petition at 63–65. 103The EPA notes that the Petitioner also 

identified several additional provisions, 25–4–13 

R.I. Code R. §§ 13.4.1(a), 27.2.3 and 25–4–39 R.I. 

Code R. §§ 39.5.4, 39.7.5(a), 39.7.6(b), 39.7.7(e), 

39.7.8(f), 39.7.9(e), 39.7.11(c)(2), that it alleged are 

inconsistent with the CAA and the EPA’s SSM 

Policy. However, the Petitioner did not request that 

the EPA address those provisions in its remedy 

request, and thus the EPA is not addressing those 

provisions in this action. The EPA may elect to 

evaluate those provisions in a later action. 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. The first provision identified by 

the Petitioner, N.H. Code R. Env-A 

902.03, explicitly states that ‘‘increased 

emissions shall be allowed’’ during 

‘‘malfunction or breakdown of any 

component part of the air pollution 

control equipment.’’ The third provision 

identified by the Petitioner, N.H. Code 

R. Env-A 1203.05, provides that 

applicable SIP emission limitations 

apply ‘‘for any process, manufacturing 

and service industry’’ ‘‘[e]xcept during 

periods of start-ups and warm-ups.’’ 

Both of these provisions allow 

automatic exemptions during periods of 

startup from otherwise applicable SIP 

emission limitations for excess 

emissions and thus are inconsistent 

with the requirements of the CAA as 

interpreted in the EPA’s SSM Policy. 

The EPA believes that inclusion of such 

exemptions from otherwise applicable 

SIP emission limitations in these 

provisions is a substantial inadequacy 

and renders these SIP provisions 

impermissible. 

Similarly, N.H. Code R. Env-A 

1203.05 does not appear to comply with 

the Act’s requirements for source 

category-specific rules for startup and 

shutdown as interpreted in the EPA’s 

SSM Policy. N.H. Code R. Env-A 

1203.05 establishes a visible emissions 

limit for ‘‘any process, manufacturing 

and service industry’’ but further states 

that this limit does not apply during 

startups. Automatic exemptions from 

otherwise applicable SIP emission 

limitations for excess emissions during 

periods of startup are not permissible 

under the CAA. As discussed in section 

VII.A of this notice, states may elect to 

develop alternative emission limitations 

or other forms of enforceable control 

measures or techniques that apply 

during startup or shutdown, but 

exemptions for excess emissions during 

such periods are inconsistent with the 

fundamental requirements of the CAA. 

Similarly, N.H. Code R. Env-A 

1207.02 provided an alternate opacity 

limit, ‘‘60 percent opacity, No. 3 on the 

Ringelmann Smoke Chart,’’ for pre-June 

1974 asphalt plants during startups. The 

EPA believes that this alternate 

emissions limit does not meet the 

elements of the EPA’s SSM Policy 

interpreting the CAA for establishing 

source-specific startup and shutdown 

alternative limits. However, after the 

Petitioner filed its Petition, the EPA 

acted on a SIP revision from New 

Hampshire correcting N.H. Code R. EnvA 1207.02 and renaming that provision 

as N.H. Code R. Env-A 2703.02. The 

N.H. Code R. Env-A 2703.02, as 

rewritten and submitted by New 

Hampshire, corrected the deficiencies 

identified by the Petitioner and removed 

the alternative limitations applicable 

during startups for pre-June 1974 

asphalt plants. The EPA approved New 

Hampshire’s SIP revision with respect 

to N.H. Code R. Env-A 2703.02 on 

August 22, 2012.101 Thus, the 

Petitioner’s objection to this provision is 

moot. 

Finally, the EPA believes that N.H. 

Code R. Env-A 902.04 is impermissible 

under the CAA as interpreted in the 

EPA’s SSM Policy, because it includes 

an unbounded director’s discretion 

provision. The provision authorizes a 

state official to grant ‘‘an extension of 

time’’ to the time-limited exemption 

provided by N.H. Code R. Env-A 902.03 

or a ‘‘temporary variance’’ to an 

applicable SIP emission limitation 

during malfunctions of air pollution 

control equipment. This provision could 

be read to mean that once the state 

official has granted a time extension or 

temporary variance for excess emissions 

during malfunctions from otherwise 

applicable SIP limitations, those excess 

emissions are not violations. As 

discussed in section VII.A of this notice, 

such director’s discretion provisions are 

impermissible. Such an interpretation 

would make the state official the 

unilateral arbiter of whether the excess 

emissions in a given event constitute a 

violation, which could preclude 

enforcement by the EPA or the public 

who might disagree about whether 

enforcement action is warranted. Most 

importantly, however, the provision 

may be read to authorize the state 

official to create an exemption from the 

emission limitation, and such an 

exemption is impermissible in the first 

instance. The EPA believes that 

inclusion of an unbounded director’s 

discretion provision in N.H. Code R. 

Env-A 902.03 is thus a substantial 

inadequacy and renders this specific SIP 

provision impermissible for this reason. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to N.H. Code R. 

Env-A 902.03 and N.H. Code R. Env-A 

1203.05. The EPA believes that both of 

these provisions allow for automatic 

exemptions from otherwise applicable 

emission limitations and that such 

outright exemptions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs as required by 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). In addition, by creating these 

impermissible exemptions, the state has 

defined violations in a way that would 

interfere with effective enforcement by 

the EPA and citizens for excess 

emissions during these events as 

provided in CAA sections 113 and 304. 

For these reasons, the EPA is proposing 

to find that these provisions are 

substantially inadequate to meet CAA 

requirements and thus is proposing to 

issue a SIP call with respect to these 

provisions. 

The EPA proposes to grant the 

Petition with respect to N.H. Code R. 

Env-A 902.04. The EPA believes that 

this provision allows for exemptions 

from otherwise applicable emission 

limitations through a state official’s 

unilateral exercise of discretionary 

authority that is unbounded. Such 

provisions are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs as required by sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

For these reasons, the EPA is proposing 

to find that this provision is 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

The EPA proposes to deny the 

Petition with respect to N.H. Code R. 

Env-A 1207.02. New Hampshire has 

corrected the inadequacy identified by 

the Petitioner, and the EPA approved 

the SIP revision. Therefore, the 

Petitioner’s objection is moot. 

3. Rhode Island 

a. Petitioner’s Analysis 

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).102 103 The 

Petitioner argued that if the state grants 

the source’s petition and provides a 

variance allowing the source to continue 

to operate, the facility could be excused 

from compliance with otherwise 

applicable SIP emission limitations 


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104Petition at 53–54. 105Petition at 54. 

during malfunction periods. The 

Petitioner argued that this provision 

could be read to preclude enforcement 

by the EPA or citizens in the event that 

the state elects not to treat the event as 

a violation of SIP emission limitations. 

Thus, the Petitioner argued, the 

provision is inconsistent with the CAA 

and the EPA’s SSM Policy because it 

allows the state to make a unilateral 

decision that the excess emissions were 

not a violation and thus purports to bar 

enforcement for the excess emissions by 

the EPA and citizens. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that excess 

emissions during malfunctions are not 

violations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. 

The EPA believes that 25–4–13 R.I. 

Code R. § 16.2 is impermissible under 

the CAA as interpreted in the EPA’s 

SSM Policy, due to an insufficiently 

bounded director’s discretion provision. 

The provision specifies a mechanism for 

a variance to be granted ‘‘[i]n the event 

that the malfunction of an air pollution 

control system is expected or may 

reasonably be expected to continue for 

longer than 24 hours.’’ This provision 

could be read to mean that once a state 

official has exempted excess emissions 

during malfunctions from otherwise 

applicable SIP limitations, those excess 

emissions are not violations. As 

discussed in section VII.A of this notice, 

such director’s discretion provisions are 

impermissible. Such an interpretation 

would make the state official the 

unilateral arbiter of whether the excess 

emissions in a given event constitute a 

violation, which could preclude 

enforcement by the EPA or the public 

who might disagree about whether 

enforcement action is warranted. Most 

importantly, however, the provision 

may be read to authorize the state 

official to create an exemption from the 

emission limitation, and such an 

exemption is impermissible in the first 

instance. The EPA believes that 

inclusion of an insufficiently bounded 

director’s discretion provision in 25–4– 

13 R.I. Code R. § 16.2 is thus a 

substantial inadequacy and renders this 

specific SIP provision impermissible for 

this reason. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 25–4–13 R.I. 

Code R. § 16.2. The EPA believes that 

this provision allows for exemptions 

from otherwise applicable emission 

limitations through a state official’s 

unilateral exercise of discretionary 

authority that is insufficiently bounded. 

Such provisions are inconsistent with 

the fundamental requirements of the 

CAA with respect to emission 

limitations in SIPs as required by 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For these reasons, the EPA is 

proposing to find that this provision is 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

C. Affected States in EPA Region II 

1. New Jersey 

a. Petitioner’s Analysis 

The Petitioner objected to two specific 

provisions in the New Jersey SIP that 

allow for automatic exemptions for 

excess emissions during emergency 

situations.104 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 argued that such an 

exemption is inconsistent with the 

requirements of the CAA and the EPA’s 

SSM Policy. The Petitioner argued that 

the CAA and the EPA’s interpretation of 

the CAA in the SSM Policy require that 

all such excess emissions be treated as 

violations. 

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). The 

Petitioner argued that this sourcespecific exemption from the emission 

limitations ‘‘cannot ensure compliance 

with the NAAQS and PSD increments 

for NOX because ambient air quality is 

nowhere mentioned as a relevant 

consideration.’’ 105

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations of such 

limitations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions that create 

exemptions such that excess emissions 

during emergency conditions, however 

defined, are not violations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. 

The first provision identified by the 

Petitioner explicitly states that emission 

limitations of sulfur compounds ‘‘shall 

not apply’’ to emissions coming from a 

stack or a chimney during ‘‘abnormal 

emergency conditions,’’ when the 

discharges are solely to relieve pressure 

of gas, vapor, or liquid. The EPA 

believes that inclusion of such an 

exemption from emission limitations in 

N.J. Admin. Code 7:27–7.2(k)(2) is a 

substantial inadequacy and renders this 

specific SIP provision impermissible. 

The EPA notes that this exemption is 

impermissible even though the state has 

imposed the limitation that such 

exemption would apply only during 

‘‘abnormal emergency conditions.’’ The 

core problem remains that the provision 

provides an impermissible exemption 

from the sulfur compound emission 

limitations otherwise applicable under 

the SIP. 

With regard to the second provision 

raised by the Petitioner (N.J. Admin. 

Code 7:27–19.1), the EPA disagrees that 

it is a substantial inadequacy in the SIP, 

because the exemption from the NOX

emission limitations ceased to be 

applicable after November 15, 2005. 

Because the statute’s exemption applies 

only to those emergency situations, or 


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106Petition at 28–29. 

‘‘MEG alerts,’’ that occur ‘‘on or before 

November 15, 2005’’ (N.J. Admin. Code 

7:27–19.1), the Petitioner’s claim is 

moot. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to N.J. Admin. 

Code 7:27–7.2(k)(2). The EPA believes 

that this provision allows for an 

exemption from the otherwise 

applicable emission limitations, and 

that such an exemption is inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs as required by CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For this reason, the EPA is 

proposing to find that this provision is 

substantially inadequate to meet CAA 

requirements and thus is proposing to 

issue a SIP call with respect to this 

provision. The EPA proposes to deny 

the Petition with respect to N.J. Admin. 

Code 7:27–19.1, because its 

effectiveness expired on November 15, 

2005, and therefore Petitioner’s claim 

with regard to the impermissibility of 

this provision is moot. 

2. [Reserved] 

D. Affected States in EPA Region III 

1. Delaware 

a. Petitioner’s Analysis 

The Petitioner objected to seven 

provisions in the Delaware SIP that 

provide exemptions during startup and 

shutdown from the otherwise applicable 

SIP emission limitations.106 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). These provisions 

provide exemptions to the emission 

limitations during startup and 

shutdown when ‘‘the emissions * * * 

during start-up and shutdown are 

governed by an operation permit issued 

pursuant to the provisions of 2.0 of 7 DE 

Admin. Code 1102.’’ (E.g., 7–1100–1104 

Del. Code Regs § 1.5.) 

The Petitioner objected to these 

provisions because they provide a state 

official with the discretion, through the 

permitting process, to exempt sources 

from otherwise applicable SIP emission 

limitations or to set alternative 

limitations for periods of startup and 

shutdown. The Petitioner argued that 

such discretion is not permissible 

because the CAA and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all such excess 

emissions be treated as violations. 

Moreover, the Petitioner argued that any 

alternative limits for periods of startup 

and shutdown created by the state 

official through the permitting process 

do not meet the requirements of the Act 

and the EPA’s SSM Policy, because 

there is no requirement in the provision 

that the limits be narrowly tailored, 

source-specific, created in consultation 

with the EPA, and approved into the 

Delaware SIP by the EPA. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup and 

shutdown could be deemed not a 

violation of the applicable emission 

limitations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. 

The EPA believes that the seven 

provisions raised by the Petitioner are 

impermissible because they are 

unbounded director’s discretion 

provisions, created through the state 

permitting program, in which state 

officials are provided unbounded 

discretion to set alternative limits and 

could therefore provide an outright 

exemption from the emission 

limitations. In each of the provisions 

raised by the Petitioner, an exemption 

from the SIP’s emission limitations 

during periods of startup and shutdown 

is automatically granted if the permit to 

which the source is subject has terms or 

conditions governing emissions during 

startup and shutdown. The SIP 

provisions therefore vest state officials 

with the unilateral power to establish 

alternative limits, or to create an 

exemption altogether, in permits by 

deeming such periods of excess 

emissions during startup and shutdown 

permissible. Were the state to exercise 

its discretion and decide on a case-bycase basis that such an event was not a 

violation of the emission limitations, the 

EPA and citizens could be precluded 

from enforcement. More importantly, 

however, an exemption from the 

emission limitations is impermissible in 

the first instance, and these provisions 

purport to authorize state officials in the 

permitting context to grant such 

exemptions. These provisions therefore 

undermine the SIP’s emission 

limitations and the emissions 

reductions they are intended to achieve 

and render them less enforceable by the 

EPA or through a citizen suit. The EPA 

believes that the inclusion of 

insufficiently bounded director’s 

discretion provisions in 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 is 

thus a substantial inadequacy and 

renders these specific SIP provisions 

impermissible for this reason. 

In addition, the EPA agrees with the 

Petitioner that while the CAA, as 

interpreted in the EPA’s SSM Policy, 

allows states to set source categoryspecific alternative emission limitations 

or other forms of enforceable control 

measures or techniques that apply 

during periods of startup and shutdown, 

such alternative limitations are only 

permitted in a narrow set of 

circumstances and must be 

accomplished through the appropriate 

SIP process (see section VII.A of this 

notice.) Those alternative limitations 

must be developed in consultation with 

the EPA and must be approved by the 

EPA into the SIP. The provisions of 

Delaware’s SIP raised by the Petitioner 

purport to authorize the state to 

establish alternative limitations for 

excess emissions during periods of 

startup and shutdown (or to exempt 

those emissions altogether, as discussed 

above) on a case-by-case basis in the 

permitting process, and the provisions 

do not require the state to consult with 

the EPA or have those alternative limits 

approved by the EPA into the SIP. The 

EPA believes that the inclusion of 

processes to establish alternative limits 

for some sources and in regard to some 


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107Petition at 29–30. 

pollutants in a manner that does not 

conform with the requirements of the 

Act as interpreted in the EPA’s SSM 

Policy in 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 is thus 

a substantial inadequacy and renders 

these specific SIP provisions 

impermissible, in addition to the 

creation of unbounded discretion in a 

state official. 

c. The EPA’s Proposal 

The EPA proposes 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. 

The EPA believes that these provisions 

allow for exemptions from otherwise 

applicable SIP emission limitations, and 

that such outright exemptions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs in sections 

110(a)(2)(A), 110(a)(C), and 302(k). In 

addition, the aforementioned provisions 

each allow for such exemptions through 

a state official’s unilateral exercise of 

insufficiently bounded discretionary 

authority in the permitting process, and 

such provisions are inconsistent with 

the fundamental requirements of the 

CAA with respect to SIPs and SIP 

revisions. Moreover, the discretion in 

these provisions also allows state 

officials to establish alternative 

emission limitations during periods of 

startup and shutdown through a process 

that does not conform to the 

requirements of the Act or the EPA’s 

SSM Policy with regard to establishing 

alternative emission limitations. For 

these reasons, the EPA is proposing to 

find that these provisions are 

substantially inadequate to meet CAA 

requirements and thus is proposing to 

issue a SIP call with respect to these 

provisions. 

2. District of Columbia 

a. Petitioner’s Analysis 

The Petitioner objected to five 

provisions in the District of Columbia 

(D.C.) SIP as being inconsistent with the 

CAA and the EPA’s SSM Policy.107 The 

Petitioner first objected to a generally 

applicable provision in the D.C. SIP that 

allows for discretionary exemptions 

during periods of maintenance or 

malfunction (D.C. Mun. Regs. tit. 20 

§ 107.3). The provision provides the 

Mayor with the authority to permit 

continued operation of a stationary 

source when air pollution controls are 

shut down due to maintenance or 

malfunction. The Petitioner argued that 

this provision could provide an 

exemption from the otherwise 

applicable SIP emission limitations, and 

such an exemption is impermissible 

under the CAA because the statute and 

the EPA’s interpretation of the CAA in 

the SSM Policy require that all such 

excess emissions be treated as 

violations. Moreover, the Petitioner 

objected to this discretionary exemption 

because the Mayor’s grant of permission 

to continue to operate during the period 

of malfunction or maintenance could be 

interpreted to excuse excess emissions 

during such time period and could thus 

be read to preclude enforcement by the 

EPA or citizens in the event that the 

Mayor elects not to treat the event as a 

violation. Thus, in addition to creating 

an impermissible exemption for the 

excess emissions, the Petitioner argued, 

the provision is also inconsistent with 

the CAA as interpreted in the EPA’s 

SSM Policy because it allows the Mayor 

to make a unilateral decision that the 

excess emissions were not a violation 

and thus purports to bar enforcement for 

the excess emissions by the EPA and 

citizens. 

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)). The Petitioner 

argued that these provisions could 

provide exemptions or deviations from 

the otherwise applicable SIP emission 

limitations, and such exemptions are 

impermissible under the CAA because 

the statute and the EPA’s interpretation 

of the CAA in the SSM Policy require 

that all such excess emissions be treated 

as violations. Moreover, the Petitioner 

argued that the alternative limits do not 

appear to meet the criteria for a source 

category-specific rule as permitted 

under the EPA’s SSM Policy 

interpreting the Act. 

Finally, the Petitioner objected to the 

provision in the D.C. SIP that provides 

an affirmative defense for violations of 

visible emission limitations during 

‘‘unavoidable malfunction’’ (D.C. Mun. 

Regs. tit. 20 § 606.4). The Petitioner 

objected to this provision because the 

elements of the defense are not laid out 

clearly in the SIP, because the term 

‘‘affirmative defense’’ is not defined in 

the SIP, and finally, the Petitioner 

argues, because affirmative defenses for 

any excess emissions are wholly 

inconsistent with the CAA and should 

be removed from the SIP. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, load change, or emergencies 

are not violations of the applicable 

emission limitations are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs. The EPA believes 

that the inclusion of such an exemption 

from the emission limitations in D.C. 

Mun. Regs. tit. 20 § 107.3 is thus a 

substantial inadequacy and renders this 

specific SIP provision impermissible. 

The EPA believes that D.C. Mun. 

Regs. tit. 20 § 107.3 is also 

impermissible due to an unbounded 

director’s discretion provision that 

purports to make the Mayor the 

unilateral arbiter of whether the excess 

emissions in a given event constitute a 

violation. In the case of D.C. Mun. Regs. 

tit. 20 § 107.3, the provision authorizes 

the Mayor to permit continued 

operation at stationary sources without 

functioning air pollution control 

equipment. The Mayor’s grant of 

permission to continue to operate 

during the period of malfunction or 

maintenance could be interpreted to 

excuse excess emissions from that time 

period, and it could thus be read to 

preclude enforcement by the EPA or 

through a citizen suit in the event that 

the Mayor elects not to treat the event 

as a violation. In addition, the provision 

vests the Mayor with the unilateral 

power to grant an exemption from the 


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108 1999 SSM Guidance Attachment at 4–5. 

otherwise applicable SIP emission 

limitation, without any additional 

public process at the D.C. or federal 

level, and without any bounds or 

parameters to the exercise of this 

discretion. Most importantly, however, 

the provision purports to authorize the 

Mayor to create an exemption from the 

emission limitation, and such an 

exemption is impermissible in the first 

instance. Such a director’s discretion 

provision undermines the emission 

limitations and the emissions 

reductions they are intended to achieve 

and renders them less enforceable by 

the EPA or through a citizen suit. The 

EPA believes that the inclusion of an 

unbounded director’s discretion 

provision in D.C. Mun. Regs. tit. 20 

§ 107.3 is thus a substantial inadequacy 

and renders this specific SIP provision 

impermissible for this reason, in 

addition to the creation of an 

impermissible exemption. 

The EPA notes that while the CAA 

does not allow for exemptions for excess 

emissions, it does, as discussed in 

section VII.A of this notice, allow states 

to develop alternative emission 

limitations or other forms of enforceable 

control measures or techniques that 

apply during startup or shutdown. The 

EPA believes that emission limitations 

in SIPs should generally be developed 

in the first instance to account for the 

types of normal operation outlined in 

D.C. Mun. Regs. tit. 20 § 606.1, such as 

cleaning, soot blowing, and adjustment 

of combustion controls. The D.C. Mun. 

Regs. tit. 20 §§ 606.1 and 606.2 do not 

appear to comply with the CAA’s 

requirements as interpreted in the EPA’s 

SSM Policy. 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) do not 

comply with the Act and the EPA’s 

policy interpreting the Act, because, for 

instance, they do not apply only to 

‘‘specific, narrowly-defined source 

categories using specific control 

strategies.’’ 108 The EPA believes that the 

inclusion of these alternative 

limitations, which do not comply with 

the requirements of the Act, in D.C. 

Mun. Regs. tit. 20 §§ 606.1 and 606.2 is 

thus a substantial inadequacy and 

renders these specific SIP provisions 

impermissible. 

With respect to the Petitioner’s 

objection to the exemption for 

emergency standby engines (D.C. Mun. 

Regs. tit. 20 § 805.1(c)(2)), the EPA 

disagrees that this provision applies to 

an exemption from emission limitations 

during startup, shutdown, or 

malfunction periods. Instead, this 

provision applies to a specific source 

category that is not subject to control 

under the D.C. SIP. At this point in 

time, the SIP reflects that regulation of 

this source category is not necessary in 

the SIP in order to meet the applicable 

reasonably available control technology 

(RACT) requirements or other CAA 

requirements in this area. The EPA 

therefore disagrees with Petitioner that 

D.C. Mun. Regs. tit. 20 § 805.1(c)(2) 

renders the D.C. SIP substantially 

inadequate. 

Finally, the EPA agrees with the 

Petitioner that the affirmative defense 

contained in D.C. Mun. Regs. tit. 20 

§ 606.4 is not an acceptable affirmative 

defense provision under the CAA as 

interpreted the EPA’s SSM Policy. 

Although the EPA believes that 

narrowly drawn affirmative defenses are 

permitted under the CAA for 

malfunction events (see section VII.B of 

this notice), the EPA’s interpretation of 

the CAA is that such affirmative 

defenses can only shield the source 

from monetary penalties and cannot be 

a bar to injunctive relief. An affirmative 

defense provision that purports to bar 

any enforcement action for injunctive 

relief for violations of emission 

limitations is inconsistent with the 

requirements of CAA sections 113 and 

304. Furthermore, the SIP provision is 

deficient because while it appears to 

create an affirmative defense, it does so 

with conditions that are not consistent 

with the criteria that the EPA 

recommends in the SSM Policy. The 

EPA acknowledges that the SSM Policy 

is only guidance concerning what types 

of SIP provisions could be consistent 

with the requirements of the CAA. 

Nonetheless, through this rulemaking, 

the EPA is proposing to determine that 

D.C. Mun. Regs. tit. 20 § 606.4 does not 

include criteria that are sufficiently 

robust to qualify as an acceptable 

affirmative defense provision. The EPA 

believes that the inclusion of the 

complete bar to liability, including 

injunctive relief, and the insufficiently 

robust qualifying criteria in D.C. Mun. 

Regs. tit. 20 § 606.4 are substantial 

inadequacies and render this specific 

SIP provision impermissible. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to D.C. Mun. Regs. 

tit. 20 § 107.3. The EPA believes that 

this provision allows for exemptions 

from the otherwise applicable SIP 

emission limitations, and that such 

exemptions are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs in sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). In addition, 

D.C. Mun. Regs. tit. 20 § 107.3 allows for 

such an exemption through a state 

official’s unilateral exercise of 

discretionary authority that is 

unbounded and includes no additional 

public process at the D.C. or federal 

level, and such provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions. For these 

reasons, the EPA is proposing to find 

that D.C. Mun. Regs. tit. 20 § 107.3 is 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

The EPA also proposes to grant the 

Petition with respect to D.C. Mun. Regs. 

tit. 20 §§ 606.1 and 606.2. The EPA 

believes that section 606.1 

impermissibly provides an alternative 

visible emission limitation to stationary 

sources during periods of malfunction 

and during planned maintenance 

events. Furthermore, while sections 

606.1 and 606.2 appropriately provide 

alternative visible emission limitations 

only during periods of startup and 

shutdown, both sections apply to a 

broad category of sources and are not 

narrowly limited to a source category 

employing a specific control strategy, as 

required by the CAA as interpreted in 

the EPA’s SSM Policy. For these 

reasons, the EPA is proposing to find 

that D.C. Mun. Regs. tit. 20 §§ 606.1 and 

606.2 are substantially inadequate to 

meet CAA requirements and is thus 

proposing to issue a SIP call with 

respect to these provisions. 

The EPA proposes to deny the 

Petition with respect to D.C. Mun. Regs. 

tit. 20 § 805.1(c)(2). The EPA disagrees 

that this provision applies to an 

exemption from emission limitations 

during startup, shutdown, or 

malfunction periods. Rather, this 

provision applies to a specific source 

category that is not subject to control 

under the D.C. SIP. At this point in 

time, the SIP reflects that regulation of 

this source category is not necessary in 

the SIP in order to meet the applicable 

RACT requirements or other CAA 

requirements in this area. 

Finally, the EPA proposes to grant the 

petition with respect to D.C. Mun. Regs. 

tit. 20 § 606.4 because it is not a 

permissible affirmative defense 

provision consistent with the 

requirements of the CAA and the EPA’s 

recommendations in the EPA’s SSM 

Policy. By purporting to create a bar to 

enforcement that applies not just to 

monetary penalties but also to 

injunctive relief, this provision is 

inconsistent with the requirements of 


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109Petition at 70–71. 

CAA sections 113 and 304. By not 

including sufficient criteria to assure 

that sources seeking to raise the 

affirmative defense have in fact been 

properly designed, maintained, and 

operated, and to assure that sources 

have taken all appropriate steps to 

minimize excess emissions, the 

provision also fails to be sufficiently 

narrowly drawn to justify shielding 

from monetary penalties for violations. 

Thus, this provision is not appropriate 

as an affirmative defense provision 

because it is inconsistent with 

fundamental requirements of the CAA. 

For these reasons, the EPA is proposing 

to find that this provision is 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

3. Virginia 

a. Petitioner’s Analysis 

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)).109 First, 

the Petitioner objected because this 

provision provides an exemption from 

the otherwise applicable SIP emission 

limitations, and such an exemption is 

impermissible under the CAA because 

the statute and the EPA’s interpretation 

of the CAA in the SSM Policy require 

that all such excess emissions be treated 

as violations. The Petitioner argued that 

the CAA and the EPA’s interpretation of 

the CAA in the SSM Policy require that 

all such excess emissions be treated as 

violations. 

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’’ (9 Va. Admin. Code § 5–20– 

180(G)). The Petitioner argued that this 

provision could be read to preclude 

enforcement by the EPA or citizens in 

the event that the state elects not to treat 

the event as a violation. Thus, in 

addition to creating an impermissible 

exemption for the excess emissions, the 

Petitioner argued, the provision is also 

inconsistent with the CAA and the 

EPA’s SSM Policy because it allows the 

state to make a unilateral decision that 

the excess emissions were not a 

violation and thus purports to bar 

enforcement for the excess emissions by 

the EPA and citizens. 

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’’ 

and the provision ‘‘fails to establish any 

procedure through which the criteria are 

to be evaluated.’’ 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

such as 9 Va. Admin. Code § 5–20– 

180(G) that create exemptions by 

authorizing the state to determine that 

the excess emissions during startup, 

shutdown, load change, or emergencies 

are not violations of the applicable 

emission limitations are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs. The EPA believes 

that the inclusion of such an exemption 

in 9 Va. Admin. Code § 5–20–180(G) is 

thus a substantial inadequacy and 

renders this specific SIP provision 

impermissible. 

The EPA believes that 9 Va. Admin. 

Code § 5–20–180(G) is also 

impermissible due to the inclusion of a 

director’s discretion provision that 

purports to make the state official the 

unilateral arbiter of whether the excess 

emissions in a given malfunction event 

constitute a violation. In the case of 9 

Va. Admin. Code § 5–20–180(G), the 

provision authorizes the state official to 

judge that ‘‘no violation’’ has taken 

place. The provision therefore vests the 

state official with the unilateral power 

to grant an exemption from the 

otherwise applicable SIP emission 

limitation, without any additional 

public process at the state or federal 

level. By deciding that an exceedance of 

the emission limitation was not a 

‘‘violation,’’ exercise of this discretion 

could preclude enforcement by the EPA 

or the public who may not agree with 

that conclusion. Most importantly, 

however, the provision purports to 

authorize the state official to create an 

exemption from the otherwise 

applicable SIP emission limitation, and 

such an exemption is impermissible in 

the first instance. Such a director’s 

discretion provision undermines the 

emission limitations in the SIP and the 

emissions reductions that they are 

intended to achieve and renders them 

less enforceable by the EPA or through 

a citizen suit. The EPA believes that the 

inclusion of a director’s discretion 

provision in 9 Va. Admin. Code § 5–20– 

180(G) is thus a substantial inadequacy 

and renders this specific SIP provision 

impermissible for this reason, in 

addition to the creation of an 

impermissible exemption. 

Finally, the EPA agrees with 

Petitioner that although the exemption 

requires that certain conditions must be 

met by the source, the conditions set 

forth in the provision do not render it 

an acceptable affirmative defense 

provision. The Petitioner is correct that 

9 Va. Admin. Code § 5–20–180(G) is not 

an acceptable affirmative defense 

provision under the CAA as interpreted 

in the EPA’s SSM Policy. Although the 

EPA believes that narrowly drawn 

affirmative defenses are permitted under 

the CAA for malfunction events (see 

section VII.B of this notice), the EPA’s 

interpretation of the CAA is that such 

affirmative defenses can only shield the 

source from monetary penalties and 

cannot be a bar to injunctive relief. An 

affirmative defense provision that 

purports to bar any enforcement action 

for injunctive relief for violations of 

emission limitations is inconsistent 

with the requirements of CAA sections 

113 and 304. Furthermore, Virginia’s 

SIP provision is deficient because even 

if it attempts to create an affirmative 

defense rather than an automatic 

exemption from the emission 

limitations, it does so with conditions 

that are not consistent with the criteria 

that the EPA recommends in the SSM 

Policy. The EPA acknowledges that the 

SSM Policy is only guidance concerning 

what types of SIP provisions could be 

consistent with the requirements of the 

CAA. Nonetheless, through this 

rulemaking, the EPA is proposing to 

determine that 9 Va. Admin. Code § 5– 

20–180(G) does not include criteria that 

are sufficiently robust to qualify as an 

acceptable affirmative defense provision 

under the CAA. The EPA believes that 

the inclusion of the complete bar to 

liability, including injunctive relief, and 

the insufficiently robust qualifying 

criteria in 9 Va. Admin. Code § 5–20– 

180(G) are substantial inadequacies and 

render this specific SIP provision 

impermissible. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 9 Va. Admin. 

Code § 5–20–180(G). The EPA believes 


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110Petition at 72–74. 

that this provision allows for an 

exemption from the otherwise 

applicable SIP emission limitations, and 

that such exemptions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs in sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In 

addition, 9 Va. Admin. Code § 5–20– 

180(G) allows for such an exemption 

through a state official’s unilateral 

exercise of discretionary authority that 

includes no additional public process at 

the state or federal level, and such 

provisions are inconsistent with the 

fundamental requirements of the CAA 

with respect to SIPs and SIP revisions. 

Moreover, even if the EPA were to 

consider 9 Va. Admin. Code § 5–20– 

180(G) as providing for an affirmative 

defense rather than an automatic 

exemption, the provision is not a 

permissible affirmative defense 

provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s recommendations in the 

EPA’s SSM Policy. By purporting to 

create a bar to enforcement that applies 

not just to monetary penalties but also 

to injunctive relief, this provision is 

inconsistent with the requirements of 

CAA sections 113 and 304. By not 

including sufficient criteria to assure 

that sources seeking to raise the 

affirmative defense have in fact been 

properly designed, maintained, and 

operated, and to ensure that sources 

have taken all appropriate steps to 

minimize excess emissions, the 

provision also fails to be sufficiently 

narrowly drawn to justify shielding 

from monetary penalties for violations. 

Thus, this provision is not appropriate 

as an affirmative defense provision 

because it is inconsistent with 

fundamental requirements of the CAA. 

For these reasons, the EPA is 

proposing to find that this provision is 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

4. West Virginia 

a. Petitioner’s Analysis 

The Petitioner made four types of 

objections identifying inadequacies 

regarding startup, shutdown, and 

malfunction provisions in West 

Virginia’s SIP.110 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). The Petitioner objected because 

all three of these provisions provide 

exemptions from the otherwise 

applicable SIP emission limitations, and 

such exemptions are inconsistent with 

the requirements of the CAA as 

interpreted in the EPA’s SSM Policy. 

The Petitioner argued that the CAA and 

the EPA’s interpretation of the CAA in 

the SSM Policy require that all such 

excess emissions be treated as 

violations. The Petitioner also objected 

to all three of these provisions because, 

by providing an outright exemption 

from otherwise applicable requirements, 

the state has defined these excess 

emissions as not violations, thereby 

precluding enforcement by the EPA or 

citizens for the excess emissions that 

would otherwise be violations. 

Second, the Petitioner objected to 

seven discretionary exemption 

provisions because these provisions 

provide exemptions from the otherwise 

applicable SIP emission limitations, and 

such exemptions are impermissible 

under the CAA because the statute and 

the EPA’s interpretation of the CAA in 

the SSM Policy require that all such 

excess emissions be treated as 

violations. 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). The Petitioner 

argued that these provisions could be 

read to preclude enforcement by the 

EPA or citizens in the event that the 

state official elects not to treat the event 

as a violation. Thus, in addition to 

creating an impermissible exemption for 

the excess emissions, the Petitioner 

argued, the SIP’s provisions are also 

inconsistent with the CAA as 

interpreted in the EPA’s SSM Policy 

because they allow the state official to 

make a unilateral decision that the 

excess emissions were not a violation 

and thus purport to bar enforcement for 

the excess emissions by the EPA and 

citizens. 

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 requirements of 

source category-specific rules. The 

Petitioner argued that this provision 

could provide an unacceptable 

deviation during periods of startup and 

shutdown from the otherwise applicable 

SIP emission limitations, and such 

deviations are impermissible under the 

CAA because the statute and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all such excess 

emissions be treated as violations. 

Moreover, the Petitioner argued that the 

alternative limits do not appear to meet 

the criteria for a source category-specific 

rule as permitted under the Act as 

interpreted in the EPA’s SSM Policy. 

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.’’ 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for automatic exemptions from 

otherwise applicable SIP emission 

limitations. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations of such limitations, whether 

or not the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, or malfunction are not 

violations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. Two of the automatic exemption 

provisions identified by the Petitioner 

explicitly state that the standards shall 

not apply or that certain operations 

‘‘shall be exempt’’ during periods of 

startup, shutdown, malfunction, or 

maintenance (W. Va. Code R. § 45–2– 

9.1, W. Va. Code R. § 45–7–10.3). The 

third automatic exemption states that 

requirements for monitoring, 

recordkeeping, and reporting will not 

apply under certain circumstances (W. 

Va. Code R. § 45–40–100.8). Such an 


srobinson on DSK4SPTVN1PROD with PROPOSALS3
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111The EPA notes that 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. 

112 1999 SSM Guidance Attachment at 4–5. 

exemption would affect the 

enforceability of the emission 

limitations and thus adversely affects 

the approvability of the emission 

limitations themselves. Moreover, 

failure to account accurately for excess 

emissions at sources during SSM events 

has a broader impact on NAAQS 

implementation and SIP planning, 

because such accounting directly 

informs the development of emissions 

inventories and emissions modeling. 

The exemptions therefore provide that 

the resulting excess emissions will not 

be violations, which is contrary to the 

requirements of the CAA. The EPA 

believes that the inclusion of such 

automatic exemptions from emission 

limitations in 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, is thus a 

substantial inadequacy and renders 

these specific SIP provisions 

impermissible. 

With respect to the Petitioner’s 

concern that these exemptions preclude 

enforcement by the EPA or citizens, the 

EPA agrees that this is one of the critical 

reasons why such provisions are 

impermissible under the CAA. By 

having SIP provisions that define what 

would otherwise be violations of the 

applicable emission limitations as nonviolations, the state has effectively 

negated the ability of the EPA or the 

public to enforce against those 

violations. 

The EPA also agrees that the CAA 

does not allow for discretionary 

exemptions from otherwise applicable 

SIP emission limitations. As noted 

above, in accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions such as 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 that 

create exemptions by permitting the 

state to determine that the excess 

emissions during startup, shutdown, 

load change, or emergencies are not 

violations of the applicable emission 

limitations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. The EPA believes that the 

inclusion of these discretionary 

exemptions in the SIP is thus a 

substantial inadequacy and renders 

these specific SIP provisions 

impermissible. 

The EPA believes that 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 are also 

impermissible because these provisions 

purport to make a state official the 

unilateral arbiter of whether the excess 

emissions in a given malfunction, 

maintenance, or emergency event 

constitute a violation. In the case of W. 

Va. Code R. § 45–2–10.1, the provision 

allows the 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. § 45–3–7.1, 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 permit 

excess emissions ‘‘due to unavoidable 

malfunctions of equipment.’’ The 

provision at W. Va. Code R. § 45–21–9.3 

permits exceedances where the limit 

cannot be ‘‘satisfied’’ because of 

‘‘routine maintenance’’ or ‘‘unavoidable 

malfunction.’’ 

These provisions authorize the state 

official to judge that violations have not 

occurred even though the emissions 

exceeded the applicable SIP emission 

limitations. The SIP’s provisions 

therefore vest the state official with the 

unilateral power to grant exemptions 

from otherwise applicable SIP emission 

limitations, without any additional 

public process at the state or federal 

level. By deciding that an exceedance of 

the emission limitation was not a 

‘‘violation,’’ exercise of this discretion 

could preclude enforcement by the EPA 

or through a citizen suit. Most 

importantly, however, the provision 

purports to authorize the state official to 

create an exemption from the otherwise 

applicable SIP emission limitation, and 

such an exemption is impermissible in 

the first instance. Such a director’s 

discretion provision undermines the 

emission limitations and the emissions 

reductions they are intended to achieve 

and renders them less enforceable by 

the EPA or through a citizen suit. The 

EPA believes that the inclusion of 

director’s discretion provisions in 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 is 

thus a substantial inadequacy and 

renders these specific SIP provisions 

impermissible for this reason, in 

addition to the creation of an 

impermissible exemption. 

The EPA notes that while the CAA 

does not allow for exemptions for excess 

emissions, it does, as discussed in 

section VII.A of this notice, permit 

states to develop alternative emission 

limitations or other forms of enforceable 

control measures or techniques that 

apply during startup or shutdown. W. 

Va. Code R. § 45–3–3.2 and W. Va. Code 

R. § 45–2–10.2 111 do not appear to 

comply with the Act’s requirements as 

interpreted in the EPA’s SSM Policy. 

The alternative smoke and/or 

particulate matter limitation on hot mix 

asphalt plants that applies during 

periods of startup and shutdown (W. Va. 

Code R. § 45–3–3.2) does not comply 

with the CAA as interpreted in the 

EPA’s policy because, for instance, it 

does not apply only to ‘‘specific, 

narrowly-defined source categories 

using specific control strategies.’’ 112 W. 

Va. Code R. § 45–2–10.2, which allows 

fuel-burning units employing flue gas 

desulphurization systems to bypass 

such systems during ‘‘necessary 

planned or unplanned maintenance’’ 

and provides an alternative limit of 20- 

percent opacity during such periods, 

also does not comply with the CAA as 

interpreted in the EPA’s SSM Policy. 

The EPA believes that such special 

emission limitations or emissions 

controls may be appropriate during 

startup or shutdown, but other modes of 

normal source operation, including 

maintenance, should be accounted for 

in the development of the emission 

limitations themselves. The EPA 

believes that the inclusion of alternative 

limits that do not meet the requirements 

of the CAA as interpreted in the EPA’s 

SSM Policy in W. Va. Code R. § 45–3– 

3.2 and W. Va. Code R. § 45–2–10.2 is 

thus a substantial inadequacy and 

renders these specific SIP provisions 

impermissible for this reason. 

The EPA also agrees that the 

discretionary provision allowing a state 

official 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) does not comply with 

the CAA or the EPA’s SSM Policy 

interpreting the CAA. These provisions 

purport to authorize the state official to 

establish alternative limits for excess 

emissions during periods of startup and 

shutdown (or, potentially, to exempt 


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113Petition at 17–18. 

114The EPA notes that the Petitioner also 

identified several additional pollutant-specific and 

source category-specific provisions in the Alabama 

SIP that it alleged are inconsistent with the CAA 

and the EPA’s SSM Policy. However, the Petitioner 

did not request that the EPA address those SIP 

provisions in its remedy request, and thus the EPA 

is not addressing those provisions in this action. 

The EPA may elect to evaluate those provisions in 

a later action. 

those emissions altogether) on a case-bycase basis, and these provisions do not 

require the state official to consult with 

the EPA or to have those alternative 

limits approved by the EPA into the SIP, 

contrary to the EPA’s SSM Policy 

interpreting the requirements of the 

CAA. The EPA believes that the 

inclusion of these alternative 

limitations, which do not comply with 

the EPA’s interpretations of the 

requirements of the CAA, in W. Va. 

Code R. § 45–3–3.2 and W. Va. Code R. 

§ 45–7–10.4, is thus a substantial 

inadequacy and renders these specific 

SIP provisions impermissible. 

c. The EPA’s Proposal 

The EPA proposes 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. The 

EPA believes that each of these 

provisions allows for automatic 

exemptions from the otherwise 

applicable SIP emission limitations, and 

that such exemptions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs as required by 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). In addition, by creating these 

impermissible exemptions, the state has 

defined violations in way that would 

interfere with effective enforcement by 

the EPA and citizens for excess 

emissions during these events as 

provided in CAA sections 113 and 304. 

For these reasons, the EPA is proposing 

to find that these provisions are 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to these 

provisions. 

The EPA proposes 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. The 

EPA believes that these provisions allow 

for discretionary exemptions from 

otherwise applicable SIP emission 

limitations, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, these provisions 

allow for exemptions through a state 

official’s unilateral exercise of 

discretionary authority that includes no 

additional public process at the state or 

federal level, and such provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions. 

The EPA also proposes 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 applies during periods of 

maintenance, and such alternative 

limits are only permissible during 

periods of startup and shutdown. The 

W. Va. Code R. § 45–7–10.4 allows state 

officials the discretion to establish 

alternative visible emissions standards 

during startup and shutdown upon 

application. This provision is 

inconsistent with the EPA’s SSM Policy 

and requirements under the Act 

because, for example, the emission 

limitations are required to be developed 

in consultation with the EPA and must 

be included in the SIP itself. For these 

reasons, the EPA is proposing to find 

that 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 are substantially 

inadequate to meet CAA requirements 

and is thus proposing to issue a SIP call 

with respect to these provisions. 

E. Affected States and Local 

Jurisdictions in EPA Region IV 

1. Alabama 

a. Petitioner’s Analysis 

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)).113 114 First, the 

Petitioner objected because both of these 

provisions provide exemptions from the 

otherwise applicable emission 

limitations, and such exemptions are 

inconsistent with the requirements of 

the CAA and the EPA’s SSM Policy. The 

Petitioner argued that the CAA and the 

EPA’s interpretation of the CAA in the 

SSM Policy require that all such excess 

emissions be treated as violations. 

Second, the Petitioner objected to the 

discretionary exemptions for excess 

emissions during startup, shutdown, or 

load change that are also present in Ala 

Admin Code Rule 335–3–14–.03(1)(h)(1) 

because the emissions during such 

events can be reasonably avoided. The 

Petitioner noted that such events are 

part of normal source operation and that 

any special treatment of excess 

emissions during such events must be 

justified with a showing that the excess 

emissions could not be avoided through 

careful planning and design, and that 

bypassing controls in such events is 

necessary to prevent loss of life, 

personal injury, or severe property 

damage. 

Third, the Petitioner objected to the 

discretionary emergency exemption 

provision that also is present in Ala 

Admin Code Rule 335–3–14– 

.03(1)(h)(2), because the provision gives 

the state ‘‘sole authority to determine 

whether or not a violation has 

occurred.’’ The Petitioner argued that 

this provision could be read to preclude 

enforcement by the EPA or citizens in 

the event that the state elects not to treat 

the event as a violation. Thus, in 

addition to creating an impermissible 

exemption for the excess emissions, the 

Petitioner argued that the provision is 

also inconsistent with the CAA and the 

EPA’s SSM Policy because it allows the 

state to make a unilateral decision that 

the excess emissions were not a 

violation and thus purports to bar 

enforcement for the excess emissions by 

the EPA and citizens. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitations must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, load change, or emergencies 

are not violations of the applicable 

emission limitations are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs. The EPA believes 


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115Petition at 30–31. 

116The EPA notes that the Petitioner also 

identified several additional pollutant-specific and 

source category-specific provisions in the Florida 

SIP that it alleged are inconsistent with the CAA 

and the EPA’s SSM Policy. However, the Petitioner 

did not request that the EPA address those SIP 

provisions in its remedy request, and thus the EPA 

is not addressing those provisions in this action. 

The EPA may elect to evaluate those provisions in 

a later action. 

that the inclusion of such exemptions 

from the emission limitations in Ala 

Admin Code Rule 335–3–14–.03(1)(h)(1) 

and Ala Admin Code Rule 335–3–14– 

.03(1)(h)(2) is thus a substantial 

inadequacy and renders these specific 

SIP provisions impermissible. 

In addition, the EPA agrees that 

startup, shutdown, and load change are 

all part of normal source operation and 

that such events are usually planned for 

and predictable, and thus emissions 

during such events are more 

controllable than those that might occur 

during an ‘‘emergency’’ or other form of 

malfunction. Unlike excess emissions in 

malfunctions, which are by definition 

presumed to be beyond the reasonable 

control of the source through proper 

design, operation, and maintenance, 

excess emissions that occur during 

startup, shutdown, or load change can 

be anticipated and steps can be taken to 

minimize them. The Petitioner, citing 

the 1983 SSM Guidance, argued that the 

EPA’s SSM Policy indicates that there 

should be ‘‘a higher showing to escape 

enforcement’’ during such planned 

events. While such a higher showing 

may be relevant in the context of 

whether a state elects to exercise its 

enforcement discretion, it should not be 

germane to whether or not the excess 

emissions constitute a violation of the 

applicable emission limitations. The 

EPA notes that the CAA does not allow 

exemptions for excess emissions during 

startup, shutdown, or load change, just 

as it does not allow such exemptions 

during malfunctions. As discussed in 

section VII.A of this notice, states may 

elect to develop alternative emission 

limitations or other forms of enforceable 

control measures or techniques that 

apply during startup and shutdown, but 

exemptions for excess emissions during 

such periods are inconsistent with the 

fundamental requirements of the CAA. 

Finally, the EPA believes that both 

Ala Admin Code Rule 335–3–14– 

.03(1)(h)(1) and Ala Admin Code Rule 

335–3–14–.03(1)(h)(2) are also 

impermissible as unbounded director’s 

discretion provisions that make a state 

official the unilateral arbiter of whether 

the excess emissions in a given event 

constitute a violation. In the case of Ala 

Admin Code Rule 335–3–14– 

.03(1)(h)(1), the provision authorizes a 

state official unilaterally to ‘‘[], in the 

Air Permit, exempt on a case by case 

basis any exceedances of emission 

limits which cannot reasonably be 

avoided, such as during periods of startup, shut-down or load change.’’ This 

provision vests the state official with the 

unilateral power to grant in a state air 

permit, which may not provide any 

additional public process at the state or 

federal level, an exemption from the 

otherwise applicable emission 

limitations without any bounds or 

parameters to the exercise of this 

discretion. By deciding that an 

exceedance of the emission limitation 

will not be a ‘‘violation,’’ exercise of this 

discretion could preclude enforcement 

by the EPA or the public who may not 

agree that the emissions in question 

could not ‘‘reasonably be avoided.’’ 

Most importantly, however, the 

provision authorizes the state official to 

create an exemption from the emission 

limitations, and such an exemption is 

impermissible in the first instance. Such 

a director’s discretion provision 

undermines the SIP emission 

limitations and the emissions 

reductions they are intended to achieve 

and renders them less enforceable by 

the EPA or through a citizen suit. As 

discussed in section VII.A of this notice, 

such provisions are substantially 

inadequate to meet CAA requirements. 

Similarly, the EPA believes that Ala 

Admin Code Rule 335–3–14–.03(1)(h)(2) 

authorizes a state official unilaterally to 

decide that a given event was an 

‘‘emergency’’ and thus to create an 

exemption from the otherwise 

applicable emission limitations. In this 

case, the provision does contain some 

general parameters for the source to 

establish that there was an emergency 

(e.g., the source has to ‘‘identify’’ the 

cause of the emergency) but 

nevertheless empowers the state official 

to make a unilateral determination as to 

whether the event was an emergency. 

The provision thus vests the official 

with the power to grant an exemption 

from the otherwise applicable SIP 

emission limitations without any 

additional public process at the state or 

federal level, and with insufficient 

bounds or parameters applicable to the 

exercise of this discretion. Again, most 

significantly, this discretion authorizes 

the creation of an exemption on a caseby-case basis that is not permissible in 

the first instance. Thus, this provision 

also may undermine the SIP emission 

limitations, and the emissions 

reductions they are intended to achieve, 

and renders them less enforceable by 

the EPA or through a citizen suit. The 

EPA believes that the inclusion of an 

insufficiently bounded director’s 

discretion provision in Ala Admin Code 

Rule 335–3–14–.03(1)(h)(1) and Ala 

Admin Code Rule 335–3–14–.03(1)(h)(2) 

is thus a substantial inadequacy and 

renders these specific SIP provisions 

impermissible for this reason, in 

addition to the creation of 

impermissible exemptions. 

c. The EPA’s Proposal 

The EPA proposes 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). The EPA believes that both 

of these provisions allow for exemptions 

from the otherwise applicable emission 

limitations, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, Ala Admin 

Code Rule 335–3–14–.03(1)(h)(1) and 

Ala Admin Code Rule 335–3–14– 

.03(1)(h)(2) both allow for such 

exemptions 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, and 

such provisions are inconsistent with 

the fundamental requirements of the 

CAA with respect to SIPs and SIP 

revisions. Moreover, the discretion 

created by these provisions allows caseby-case exemptions from emission 

limitations, when such exemptions are 

not permissible in the first instance. For 

these reasons, the EPA is proposing 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 proposing to 

issue a SIP call with respect to these 

provisions. 

2. Florida 

a. Petitioner’s Analysis 

The Petitioner objected to three 

specific provisions in the Florida SIP 

that allow for generally applicable 

automatic exemptions for excess 

emissions during startup, shutdown, or 

malfunction (Fla. Admin. Code Ann 

Rule 62–201.700(1)), for fossil fuel 

steam generators during startup and 

shutdown (Fla. Admin. Code Ann Rule 

62–201.700(2)), and for such sources 

during boiler cleaning and load change 

(Fla. Admin. Code Ann Rule 62– 

201.700(3)).115 116 The Petitioner 

objected because all three of these 

provisions provide exemptions from the 

otherwise applicable SIP emission 

limitations, and such exemptions are 


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117 1999 SSM Guidance Attachment at 4–5. 

inconsistent with the requirements of 

the CAA and the EPA’s SSM Policy. The 

Petitioner argued that the CAA and the 

EPA’s interpretation of the CAA in the 

SSM Policy require that all excess 

emissions be treated as violations. 

The Petitioner objected to all three of 

these provisions because, by stating that 

the excess emissions during the relevant 

events and time periods ‘‘are 

permitted,’’ the state has defined these 

excess emissions as not violations, 

thereby precluding enforcement by the 

EPA or citizens for the excess emissions 

that would otherwise be violations. The 

Petitioner also argued that the provision 

creating exemptions for excess 

emissions during boiler cleaning and 

load change in Fla. Admin. Code Ann 

Rule 62–201.700(3) is impermissible 

specifically because it creates an 

exemption for excess emissions during 

normal source operation that ‘‘are not 

eligible for any relief under EPA 

guidance.’’ 

After objecting to the three provisions 

that create the exemptions, the 

Petitioner noted that the related 

provision in Fla. Admin. Code Ann Rule 

62–201.700(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. Moreover, 

the Petitioner asserted that none of the 

four provisions provides any 

‘‘procedure by which the factual 

premises of any of these subsections are 

to be proven.’’ 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable emission limitations. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable SIP emission limitations 

must be considered violations of such 

limitations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions that create 

exemptions such that the excess 

emissions during startup, shutdown, 

malfunction, boiler cleaning, or load 

change are not violations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. The three 

provisions identified by the Petitioner 

explicitly state that the excess emissions 

‘‘shall be permitted’’ under certain 

circumstances and thus provide that the 

resulting excess emissions will not be 

violations contrary to the CAA, as 

required by sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). The EPA 

believes that the inclusion of such 

exemptions from emission limitations in 

Fla. Admin. Code Ann Rule 62– 

201.700(1), Fla. Admin. Code Ann Rule 

62–201.700(2) and Fla. Admin. Code 

Ann Rule 62–201.700(3), is thus a 

substantial inadequacy and renders 

these specific SIP provisions 

impermissible. 

The EPA notes that these exemptions 

are impermissible even though the state 

has imposed some factual and temporal 

limitations on their potential scope. For 

example, in Fla. Admin. Code Ann Rule 

62–201.700(1), the state has specified 

that the excess emissions from startup, 

shutdown, and malfunction events 

‘‘shall be permitted’’ (i.e., allowed and 

thus not treated as violations) provided: 

‘‘(1) best operational practices to 

minimize emissions are adhered to and 

(2) the duration of excess emissions 

shall be minimized but in no case 

exceed two hours in any 24 hour period 

unless specifically authorized by the 

Department for longer duration.’’ 

Similarly, in Fla. Admin. Code Ann 

Rule 62–201.700(2) with respect to 

startup and shutdown from certain 

sources, the state has conditioned the 

exemption ‘‘provided that best 

operational practices to minimize 

emissions are adhered to and the 

duration of excess emissions shall be 

minimized.’’ In Fla. Admin. Code Ann 

Rule 62–201.700(3), the state has 

imposed much more specific limits on 

the duration of the events and some 

additional limitations on the excess 

emissions in the form of specified 

opacity limits that apply during such 

events. Although these extra limitations 

on the scope of the exemptions are 

helpful features, they nevertheless 

constitute a variance at a state official’s 

discretion from the otherwise applicable 

emissions limitations, and the core 

problem remains that each of the three 

provisions provides impermissible 

exemptions from the emission 

limitations by defining the excess 

emissions as ‘‘permitted’’ and thus not 

violations. The CAA does, as discussed 

in section VII.A of this notice, allow 

states to develop alternative emission 

limitations or other forms of enforceable 

control measures or techniques that 

apply during startup or shutdown. 

However, the Florida SIP provisions do 

not appear to comply with the Act’s 

requirements as interpreted in the EPA’s 

SSM Policy because, for instance, they 

do not apply only to ‘‘specific, 

narrowly-defined source categories 

using specific control strategies.’’ 117

With respect to the Petitioner’s 

concern that these exemptions preclude 

enforcement by the EPA or citizens, the 

EPA agrees that this is one of the critical 

reasons why such provisions are 

impermissible under the CAA. By 

having SIP provisions that define what 

would otherwise be violations of the 

applicable emission limitations as nonviolations, the state has effectively 

negated the ability of the EPA or the 

public to enforce against those 

violations. 

In addition, the EPA agrees that the 

limiting provision of Fla. Admin. Code 

Ann Rule 62–201.700(4) that curtails the 

exemptions in the prior provisions if the 

excess emissions are caused ‘‘entirely or 

in part’’ by factors within the source’s 

control such as ‘‘poor maintenance’’ 

does not negate the underlying problem 

of providing exemptions for the excess 

emissions in the first instance. The EPA 

acknowledges that this provision would 

serve to prevent sources that fail to 

maintain or operate correctly or 

otherwise to take action reasonably to 

prevent excess emissions during SSM 

events from getting the benefits of the 

exemption. However, the EPA 

recommends that these are the types of 

considerations that should be relevant 

either in the state’s exercise of 

enforcement discretion for violations, in 

the state’s adoption of a SIP provision 

concerning that exercise of enforcement 

discretion by the state, or by an 

appropriately drawn affirmative defense 

SIP provision for excess emissions in 

the case of malfunctions. 

Finally, the Petitioner expressed 

concern that the four SIP provisions at 

issue ‘‘do not specify the procedure by 

which the factual premises are to be 

proven.’’ Were these provisions 

authorizing a state official to make 

discretionary decisions as to whether or 

not a given event qualified for the 

(impermissible) exemption, there could 

be an additional concern that these 

provisions included a director’s 

discretion problem as well. However, 

the EPA believes that these regulations 

are directly enforceable by the state, the 

EPA, or members of the public in the 

appropriate forums, and thus the 

‘‘procedure’’ for proving the violation 

would be the normal process in such 

forums. The fact that the state has 

established factual requirements that 

would need to be evaluated in order to 

prove a violation of the applicable 

emission limitations is not itself 

inconsistent with CAA requirements. 

The EPA believes that providing 


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118Petition at 32. 

119See, Sierra Club, et al. v. Georgia Power Co., 

365 F. Supp 1297 (N.D. Ga. 2004). 

120 Id. at 1304. The court also made a series of 

findings to illustrate that the permit provision was 

not consistent with the EPA’s interpretation of the 

CAA requirements concerning excess emissions 

during SSM events embodied in the 1999 SSM 

Guidance. 

121See, Sierra Club, et al. v. Georgia Power Co., 

443 F.3d 1346 (11th Cir. 2006). 

122The petition was filed by Richard M. Watson 

of the Georgia Center for Law in the Public Interest 

on behalf of the Georgia Chapter of the Sierra Club. 

123See, Letter from Stephen E. Johnson, 

Administrator, to Georgia Chapter of the Sierra 

Club, dated July 18, 2007. A copy of this letter is 

in the docket for this action. 

requisite factual evidence to establish a 

violation in an enforcement proceeding 

is entirely appropriate. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Fla. Admin. 

Code Ann Rule 62–201.700(1), Fla. 

Admin. Code Ann Rule 62–201.700(2), 

Fla. Admin. Code Ann Rule 62– 

201.700(3), and Fla. Admin. Code Ann 

Rule 62–201.700(4). The EPA believes 

that each of these provisions allows for 

exemptions from the otherwise 

applicable emission limitations, and 

that such exemptions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs as required by 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). In addition, by creating these 

impermissible exemptions, the state has 

defined violations in way that would 

interfere with effective enforcement by 

the EPA and citizens for excess 

emissions during these events as 

provided in CAA sections 113 and 304. 

For these reasons, the EPA is proposing 

to find that these provisions are 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to Fla. 

Admin. Code Ann Rule 62–201.700(1), 

Fla. Admin. Code Ann Rule 62– 

201.700(2), Fla. Admin. Code Ann Rule 

62–201.700(3), and Fla. Admin. Code 

Ann Rule 62–201.700(4). 

3. Georgia 

a. Petitioner’s Analysis 

The Petitioner objected to a provision 

in the Georgia SIP that provides for 

exemptions for excess emissions during 

startup, shutdown, or malfunctions 

under certain circumstances (Ga. Comp. 

R. & Regs. 391–3–1–.02(2)(a)(7)).118 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 

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, whereas the CAA and the 

EPA’s interpretation of the CAA in the 

SSM Policy prohibit any such 

exemptions. The Petitioner noted that 

all excess emissions are required to be 

treated as violations of the applicable 

emission limitations, even if they would 

qualify for some other special 

consideration through other means such 

as enforcement discretion. 

Second, the Petitioner argued that 

although the provision provides some 

‘‘substantive criteria,’’ the provision 

does not meet the criteria the EPA 

recommends 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.’’ 

b. The EPA’s Evaluation 

At the outset, the EPA notes that the 

Petitioner failed to include any 

discussion of the extensive prior 

litigation and administrative 

proceedings concerning this specific 

provision of the Georgia SIP. Nearly 10 

years ago, citizen suit plaintiffs 

including the Petitioner sought to bring 

an enforcement action against a source 

for self-reported exceedances of 

emission limitations in the source’s 

operating permit, and the source 

asserted that those exceedances were 

not ‘‘violations’’ through application of 

a permit provision that mirrored the 

underlying SIP provision in Ga. Comp. 

R. & Regs. 391–3–1–.02(2)(a)(7).119 In 

that case, the plaintiffs argued that the 

provision at issue was an ‘‘enforcement 

discretion’’ provision applicable to state 

personnel only and thus that it was not 

relevant in the event of enforcement 

actions by other parties. The District 

Court agreed and held that the provision 

was merely an enforcement discretion 

provision applicable to the state and 

that it provided no affirmative defense 

in the enforcement action, and thus the 

court ruled in favor of the plaintiffs on 

this issue.120

On appeal, the Court of Appeals 

examined the same operating permit 

language and underlying SIP provision 

and came to a different conclusion.121

The Court of Appeals concluded that 

the provision does provide an 

affirmative defense and is not an 

enforcement discretion provision. 

Moreover, the Court noted that even if 

the provision is not consistent with the 

EPA’s guidance on permissible 

affirmative defense provisions in SIPs 

(e.g., because it creates exemptions for 

exceedances and purports to allow a 

complete bar to any liability, not just 

relief from monetary penalties), the EPA 

had not taken action through 

rulemaking to rectify that discrepancy. 

Because the EPA had not called upon 

the state to revise the SIP to bring it into 

compliance with the EPA’s current 

interpretation of the CAA embodied in 

the 1999 SSM Guidance, the Court held 

that the exceedances of the applicable 

emission limitations were not violations 

and thus ruled against the plaintiffs. 

Contemporaneously with this 

litigation, the Petitioner had also filed a 

May 23, 2005 petition for rulemaking, 

requesting that the EPA require the state 

to revise its SIP ‘‘to correct a significant 

ambiguity’’ concerning the excess 

emissions from SSM events.122 On July 

18, 2007, the EPA denied that 

petition.123 As a basis for this denial, 

the EPA reasoned that the opinion of the 

Court of Appeals had rendered the 

petition moot as to the issues raised 

therein. Specifically, the EPA stated that 

the Court’s decision that the existing 

provision did not create an ‘‘automatic 

exemption’’ and did constitute an 

‘‘affirmative defense’’ resolved any 

‘‘ambiguity’’ about the meaning and 

application of Ga. Comp. R. & Regs. 

391–3–1–.02(2)(a)(7). 

At this juncture, the EPA believes that 

the extensive proceedings concerning 

Ga. Comp. R. & Regs. 391–3–1– 

.02(2)(a)(7) in which plaintiffs, 

defendants, courts, and both state and 

federal agencies examined the same 

provision and came to different 

conclusions concerning its meaning 

illustrates the need to examine this SIP 

provision again. In particular, the EPA 

concludes that the provision warrants 

further evaluation on the merits, 

because the Petition requests that the 

EPA consider more specific allegations 

about deficiencies in the provision than 

did the 2005 petition. As the 11th 

Circuit Court of Appeals suggested, the 

EPA agrees that a formal notice-andcomment rulemaking though CAA 

section 110(k)(5) is a good mechanism 

through which to evaluate whether or 

not Ga. Comp. R. & Regs. 391–3–1– 

.02(2)(a)(7) meets the substantive 

requirements of the CAA. Accordingly, 


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124The EPA notes that it is not bound to follow 

a prior incorrect interpretation of its own policy, 

nor is it precluded from changing its policy 

interpretations. See, e.g., Luminant Generation Co. 

v. EPA, 699 F.3d 427 (5th Cir. 2012), and U.S. 

Supreme Court precedent cited therein for these 

propositions. 

125Petition at 39–40. 

126The EPA notes that the Petitioner also 

identified several additional pollutant-specific and 

source category-specific provisions in Kentucky’s 

SIP that it alleged are inconsistent with the CAA 

and the EPA’s SSM Policy. However, the Petitioner 

did not request that the EPA address those SIP 

provisions in its remedy request, and thus the EPA 

is not addressing those provisions in this action. 

The EPA may elect to evaluate those provisions in 

a later action. 

the EPA is reevaluating the provision on 

the merits.124

The first concern with this provision 

is that it does create exemptions from 

the applicable emission limitations. The 

provision explicitly states that the 

‘‘excess emissions resulting from 

startup, shutdown, malfunction of any 

source which occur though ordinary 

diligence is employed shall be 

allowed,’’ i.e., are exempt and not 

subject to enforcement for either 

monetary penalties or injunctive relief. 

The exemption for these excess 

emissions is conditioned upon several 

criteria relevant to minimizing 

emissions during the startup, shutdown, 

or malfunction event, which criteria are 

helpful and are structured as a form of 

affirmative defense. Even if Ga. Comp. 

R. & Regs. 391–3–1–.02(2)(a)(7) could 

otherwise qualify as an affirmative 

defense provision, however, the EPA’s 

interpretation of the CAA is that such 

affirmative defenses can only shield the 

source from monetary penalties and 

cannot be a bar to injunctive relief. An 

affirmative defense provision that 

purports to bar any enforcement action 

for violations of emission limitations is 

inconsistent with the requirements of 

CAA sections 113 and 304. 

The EPA’s second concern with Ga. 

Comp. R. & Regs. 391–3–1–.02(2)(a)(7) is 

that while the provision appears to 

create an affirmative defense, it does so 

with conditions that are not consistent 

with the full range of criteria that the 

EPA recommends in the SSM Policy. 

The EPA acknowledges that the SSM 

Policy is only guidance concerning what 

types of SIP provisions could be 

consistent with the requirements of the 

CAA. Nonetheless, through this 

rulemaking, the EPA is proposing to 

determine that Ga. Comp. R. & Regs. 

391–3–1–.02(2)(a)(7) does not include 

criteria that are sufficiently robust to 

qualify as an acceptable affirmative 

defense provision. In particular, the 

provision does not limit the type of 

event that qualifies as a malfunction to 

those that are entirely beyond the 

control of the source, that were not 

reasonably foreseeable and avoidable, 

and that were not part of a recurring 

pattern indicative of inadequate design, 

operation, or maintenance. While the 

EPA continues to believe that 

affirmative defense provisions applying 

to malfunctions can be consistent with 

the CAA as long as the criteria set forth 

in the SSM Policy are carefully adhered 

to, as explained in more detail in 

sections IV.B and VII.B of this notice, 

the EPA believes that the criteria in Ga. 

Comp. R. & Regs. 391–3–1–.02(2)(a)(7) 

should be augmented to assure that the 

affirmative defense is available only in 

appropriately narrow circumstances. 

The EPA’s third concern with Ga. 

Comp. R. & Regs. 391–3–1–.02(2)(a)(7) is 

that even if the provision were 

otherwise construed as an affirmative 

defense, it extends not just to 

malfunctions but also to startup and 

shutdown events. As explained in 

sections IV.B and VII.C of this notice, 

the EPA interprets the CAA to allow 

affirmative defense provisions 

applicable to malfunctions but not to 

other normal modes of source operation, 

including startup and shutdown. Thus, 

the provision is not drawn to assure that 

the affirmative defense is available only 

in appropriately narrow circumstances, 

as required by the EPA’s interpretation 

of CAA requirements. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Ga. Comp. R. & 

Regs. 391–3–1–.02(2)(a)(7). The EPA 

believes that this provision allows for 

exemptions from the otherwise 

applicable emission limitations, and 

that such outright exemptions for excess 

emissions are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. Such a provision is inconsistent 

with the requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

In addition, Ga. Comp. R. & Regs. 

391–3–1–.02(2)(a)(7) is not a permissible 

affirmative defense provision consistent 

with the requirements of the CAA and 

the EPA’s recommendations for such 

provisions in the EPA’s SSM Policy. By 

creating a bar to enforcement that 

applies not just to monetary penalties 

but also to injunctive relief, this 

provision is inconsistent with the 

requirements of CAA sections 113 and 

304. By not including sufficient criteria 

to assure that sources seeking to raise 

the affirmative defense have in fact been 

properly designed, maintained, and 

operated, and to assure that sources 

have taken all appropriate steps to 

minimize excess emissions, the 

provision also fails to be sufficiently 

narrowly drawn to justify shielding 

from monetary penalties for violations. 

Moreover, Ga. Comp. R. & Regs. 391–3– 

1–.02(2)(a)(7) currently applies not only 

to malfunctions but also to startup and 

shutdown events, contrary to the EPA’s 

interpretation of the CAA. Thus, this 

provision is not appropriate as an 

affirmative defense provision because it 

is inconsistent with fundamental 

requirements of the CAA as interpreted 

in the EPA’s SSM Policy. For these 

reasons, the EPA is proposing to find 

that Ga. Comp. R. & Regs. 391–3–1– 

.02(2)(a)(7) is substantially inadequate 

to meet CAA requirements and thus 

proposing to issue a SIP call with 

respect to this provision. 

4. Kentucky 

a. Petitioner’s Analysis 

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)).125 126 The provision 

provides that ‘‘[e]missions which, due 

to shutdown or malfunctions, 

temporarily exceed the standard * * * 

shall be deemed in violation of such 

standards unless the requirements of 

this section are satisfied and the 

determinations specified in subsection 

(4) * * * are made.’’ The provision 

requires sources to notify the director 

that such violations are going to or have 

occurred. The provision then provides 

that ‘‘[a] source shall be relieved from 

compliance with the standards * * * if 

the director determines’’ that the source 

has met a number of enumerated 

criteria. 

The Petitioner argued that this 

provision could provide an exemption 

from the otherwise applicable SIP 

emission limitations, and such an 

exemption is impermissible under the 

CAA because the statute and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all such excess 

emissions be treated as violations. 

Moreover, the Petitioner objected to this 

discretionary exemption because the 

director’s determination that the source 

has met the specified criteria could be 

interpreted to excuse excess emissions 

during such time period and could thus 

be read to preclude enforcement by the 

EPA or citizens in the event that the 

director elects not to treat the event as 

a violation. Thus, in addition to creating 

an impermissible exemption for the 

excess emissions, the Petitioner argued, 

the provision is also inconsistent with 

the CAA as interpreted in the EPA’s 

SSM Policy because it allows the 


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12506 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

127See, ‘‘Approval and Promulgation of 

Implementation Plans and Designations of Areas for 

Air Quality Planning Purposes; Kentucky; 

Redesignation of the Kentucky Portion of the 

Cincinnati-Hamilton, OH–KY–IN 1997 Annual Fine 

Particulate Matter Nonattainment Area to 

Attainment,’’ 76 FR 77903 (Dec. 15, 2011). 

128A copy of this letter can be found in the 

docket for this rulemaking. 

director to make a unilateral decision 

that the excess emissions were not a 

violation and thus could bar 

enforcement for the excess emissions by 

the EPA and citizens. 

The Petitioner noted that the criteria 

that sources must demonstrate to the 

director in order to qualify for the 

exemption ‘‘resemble the criteria that 

are supposed to guide a state’s 

enforcement discretion for 

malfunctions,’’ but that if the provision 

is not removed from the SIP, it ‘‘must 

stipulate that all excess emissions are 

violations and preserve the authority of 

EPA and citizens to enforce the SIP 

standards and limitations.’’ Thus, the 

Petitioner viewed this provision as 

either an impermissible discretionary 

exemption mechanism or an 

impermissible enforcement discretion 

provision. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, or malfunctions are not 

violations of the applicable emission 

limitations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. The EPA believes that the 

inclusion of such an exemption from the 

emission limitations in 401 KAR 50:055 

§ 1(1) is thus a substantial inadequacy 

and renders this specific SIP provision 

impermissible. 

The EPA believes that 401 KAR 

50:055 § 1(1) is impermissible as an 

unbounded director’s discretion 

provision that makes a state official the 

unilateral arbiter of whether the excess 

emissions in a given event constitute a 

violation. In the case of 401 KAR 50:055 

§ 1(1), the provision authorizes the state 

official to make a determination that the 

source has met the specified criteria, 

and such a determination could be 

interpreted to excuse excess emissions 

during the event and could thus be read 

to preclude enforcement by the EPA or 

through a citizen suit. In addition, the 

provision vests a state official with the 

unilateral power to grant an exemption 

from the otherwise applicable SIP 

emission limitation, without any 

additional public process at the state or 

federal level. Most importantly, 

however, the provision authorizes a 

state official to create an exemption 

from the emission limitation, and such 

an exemption is impermissible in the 

first instance. Such a director’s 

discretion provision undermines the SIP 

emission limitations, and the emissions 

reductions they are intended to achieve, 

and renders them less enforceable by 

the EPA or through a citizen suit. The 

EPA believes that the inclusion of an 

insufficiently bounded director’s 

discretion provision in 401 KAR 50:055 

§ 1(1) is thus a substantial inadequacy 

and renders this specific SIP provision 

impermissible for this reason, in 

addition to the creation of an 

impermissible exemption. 

The EPA also notes that after the 

submission of the Petition, there has 

been a subsequent regulatory action that 

touched upon this SIP provision 

tangentially. In connection with a 

redesignation of the Kentucky portion of 

the tri-state Cincinnati-Hamilton area 

for the 1997 PM2.5 NAAQS, the state 

submitted an interpretive letter to the 

EPA explaining the state’s reading of 

401 KAR 50:055 § 1(1).127 In this 

November 4, 2011 letter, the Kentucky 

Division of Air Quality (KDAQ) stated 

that it has ‘‘never formally taken the 

position that excess emissions under the 

regulations are not violations’’ and that 

a determination by KDAQ ‘‘does not 

limit’’ the authority of the EPA and 

citizens to take enforcement action.128

Based on the state’s interpretation of 

401 KAR 50:055 § 1(1), the EPA at that 

time concluded that the provision could 

be construed not to bar enforcement by 

the EPA or through a citizen suit if the 

state elects not to pursue enforcement; 

i.e., it could be construed as an 

enforcement discretion provision 

applicable to state personnel. In the 

context of acting upon the redesignation 

request under CAA section 107(d)(3), 

this clarification from the state was 

sufficient to address the concern raised 

in comments on that action. 

Nevertheless, the EPA noted in the 

redesignation action that it would 

evaluate 401 KAR 50:055 § 1(1) as part 

of its consideration of issues raised by 

the Petition. 

At this juncture, the EPA believes that 

the difference of views about the correct 

reading of 401 KAR 50:055 § 1(1) 

illustrates the need to examine this SIP 

provision again. The EPA appreciates 

KDAQ’s clarification of its reading of 

the provision in the November 4, 2011, 

letter and the EPA considers that 

interpretation sufficient for purposes of 

the redesignation action. However, in 

the course of reevaluating this provision 

in light of the issues raised in the 

Petition, the EPA believes that the 

provision contains regulatory language 

that is potentially contradictory and 

requires formal revision to eliminate 

significant ambiguities. For example, 

subsection 1 of the provision states that: 

‘‘[e]missions which, due to shutdown or 

malfunctions, temporarily exceed the 

standard * * * shall be deemed in 

violation of such standards unless the 

requirements of this section are 

satisfied.’’ In subsection 4, the provision 

states that ‘‘a source shall be relieved 

from compliance with the standards 

* * * if the director determines, upon 

a showing by the owner or operator of 

the source, that’’ certain conditions are 

met. KDAQ has indicated that it reads 

these provisions not to bar enforcement 

by the EPA or through a citizen suit in 

the event that the state does not pursue 

enforcement, but the EPA believes that 

the provision is sufficiently ambiguous 

on this point that a revision is necessary 

to ensure that outcome in the event of 

an enforcement action. 

As discussed in section VI.B of this 

notice, the EPA believes that in some 

instances it is appropriate to clarify 

provisions of a SIP through the use of 

interpretive letters. However, in some 

cases, there may be areas of regulatory 

ambiguity in a SIP’s provisions that are 

sufficiently significant for which 

resolution is both appropriate and 

necessary. Because the text of 

Kentucky’s SIP provision is not clearly 

phrased in terms of the state’s exercise 

of enforcement discretion and could be 

interpreted to allow discretionary 

exemptions from the otherwise 

applicable SIP emission limitations or 

as an affirmative defense provision 

inconsistent with the criteria 

recommended in the EPA’s SSM Policy, 

the EPA believes that the provision is 

substantially inadequate to meet CAA 

requirements. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 401 KAR 50:055 

§ 1(1). The EPA believes that this 

provision requires clarification to 

ensure that it meets CAA requirements. 


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129The Petitioner noted that this regulation was 

approved into Kentucky’s SIP in ‘‘Approval and 

Promulgation of Air Quality Implementation Plans; 

Kentucky; Approval of Revisions to State 

Implementation Plan; Revised Format for Materials 

Being Incorporated by Reference for Jefferson 

County, Kentucky,’’ 66 FR 53503 at 53660 (Oct. 23, 

2001). 

130Petition at 40–42. 

The current provision could be read to 

allow for exemptions from the otherwise 

applicable SIP emission limitations, and 

such exemptions are inconsistent with 

the fundamental requirements of the 

CAA with respect to emission 

limitations in SIPs in sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In 

addition, 401 KAR 50:055 § 1(1) could 

be read to allow exemptions 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, and such provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions. Moreover, the 

provision could be read to create 

discretion to allow case-by-case 

exemptions from emission limitations 

when such exemptions are not 

permissible in the first instance. In light 

of the potential conflicts between the 

provision and the differing 

interpretations that parties or a court 

might give the provision in an 

enforcement action, the EPA is 

proposing to find that 401 KAR 50:055 

§ 1(1) is substantially inadequate to 

meet CAA requirements and thus 

proposing to issue a SIP call with 

respect to this provision. 

5. Kentucky: Jefferson County 

a. Petitioner’s Analysis 

First, the Petitioner objected to a 

generally applicable provision in the 

Jefferson County Air Regulations 1.07 

because it provides for discretionary 

exemptions from compliance with 

emission limitations during startup, 

shutdown, and malfunction.129 130 The 

provision states that ‘‘[e]missions due to 

startup, shutdown, malfunction, or 

emergency, that temporarily exceed the 

standards * * * shall be deemed in 

violation of those standards unless, 

based upon a showing by the owner or 

operator of the source and an affirmative 

determination by the District, the 

applicable requirements of this 

regulation are satisfied.’’ The provision 

requires 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). 

The Petitioner argued that this 

provision could provide exemptions 

from the otherwise applicable SIP 

emission limitations, and that such 

exemptions are impermissible under the 

CAA because the statute and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all excess emissions 

be treated as violations. The Petitioner 

objected to this provision as allowing 

discretionary exemptions, because a 

local official’s determination that the 

source has met the specified criteria 

could be interpreted to excuse excess 

emissions during such events and could 

thus be read to preclude enforcement by 

the EPA or citizens if the district elects 

not to treat the event as a violation. 

Second, the Petitioner objected to the 

affirmative defense for emergencies in 

Jefferson County Air Regulations 1.07. 

The Petitioner noted that the SIP 

provision ‘‘mirrors the language in 40 

C.F.R. § 70.6(g)’’ in the EPA’s own title 

V regulations. Thus, the Petitioner 

argued that the provision should not be 

included in the SIP because it is 

modeled on the EPA’s own title V 

regulations, and such regulations do not 

belong in the SIP. The Petitioner also 

argued that even if the provision were 

appropriate as a SIP provision, it is 

deficient because it is not a ‘‘true 

affirmative defense.’’ On the latter point 

the Petitioner argued that a ‘‘true 

affirmative defense’’ is a defense to be 

asserted by the source in the context of 

a judicial or administrative enforcement 

proceeding. The Petitioner opined that 

the emergency affirmative defense in 

Jefferson County Air Regulations 1.07 

‘‘appears to allow the District to decide 

whether the defense applies.’’ 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a government official’s 

discretion. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions that create 

exemptions such that the excess 

emissions during startup, shutdown, 

load change, or emergencies are not 

violations of the applicable emission 

limitations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. The EPA believes that the 

inclusion of such an exemption from the 

emission limitations in Jefferson County 

Air Regulations 1.07 is thus a 

substantial inadequacy and renders this 

specific SIP provision impermissible. 

The EPA believes that Regulation 1.07 

is also impermissible as an 

insufficiently bounded director’s 

discretion provision that makes a local 

official the unilateral arbiter of whether 

the excess emissions in a given event 

constitute a violation. In the case of 

Regulation 1.07, the provision 

authorizes local officials to make a 

determination that the source has met 

the specified criteria for each type of 

event—startup and shutdown 

(Regulation 1.07 § 3), malfunction 

(Regulation 1.07 § 4), emergency 

(Regulation 1.07 § 5), and extended 

malfunction or emergency (Regulation 

1.07 § 7). The local official’s 

‘‘affirmative determination’’ that such 

requirements have been met has the 

effect of excusing the excess emissions 

(Regulation 1.07 § 2.1). This 

determination could be interpreted to 

preclude enforcement by the EPA or 

through a citizen suit. In addition, the 

provision vests the local official with 

the unilateral power to grant an 

exemption from the otherwise 

applicable SIP emission limitations, 

without any additional public process at 

the state or federal level. Most 

importantly, however, the provision 

authorizes the local official to create an 

exemption from the emission limitation, 

and such an exemption is impermissible 

in the first instance. Such a director’s 

discretion provision undermines the 

emission limitations, and the emissions 

reductions they are intended to achieve, 

and renders them less enforceable by 

the EPA or through a citizen suit. The 

EPA believes that the inclusion of an 

insufficiently bounded director’s 

discretion provision in Regulation 1.07 

is thus a substantial inadequacy and 

renders this specific SIP provision 

impermissible for this reason, in 

addition to the creation of an 

impermissible exemption. 

The EPA also agrees that Regulation 

1.07 provides an impermissible 

exemption for excess emissions that 

occur during ‘‘emergencies.’’ The 

provision uses language that is 

borrowed from the EPA’s title V 

regulations (Regulation 1.07 § 5) but that 

is not appropriate for a SIP provision 

(see section VII.D of this notice). In 

addition, because Regulation 1.07 § 2.1 

provides that the district may make a 

determination of whether ‘‘applicable 

requirements’’ of the regulation are 

‘‘satisfied,’’ and the affirmative defense 


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12508 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

131The EPA notes that Kentucky has recently 

made a SIP submission that includes revisions to 

the portion of the SIP applicable to Jefferson County 

that would amend Regulation 1.07. In this action, 

the EPA is only evaluating Regulation 1.07 as 

currently approved into the SIP. The EPA is not 

evaluating the more recent SIP submission as part 

of this action. The EPA will address the SIP 

submission in a later action. 132Petition at 47–49. 

133Petition at 48. 

134Petition at 47–48. 

135Petition at 47–49. 

for emergencies is defined as one such 

‘‘applicable requirement,’’ the structure 

of Regulation 1.07 could be read as 

providing the district with the unilateral 

discretion to decide that the source has 

met the conditions for the affirmative 

defense. The EPA agrees with the 

Petitioner that affirmative defenses are 

only permitted in the context of an 

enforcement proceeding and cannot be 

granted unilaterally by a state agency, 

because this would have the effect of 

precluding the EPA or the public from 

taking enforcement action. 

Regulation 1.07 also does not 

explicitly limit the affirmative defense 

for emergency events to civil penalties. 

Although the EPA believes that 

narrowly drawn affirmative defenses are 

permitted under the CAA for 

malfunction events (see sections IV.B 

and VII.B of this notice), the EPA’s 

interpretation of the CAA is that 

affirmative defenses can only shield the 

source from monetary penalties and 

cannot be a bar to injunctive relief. An 

affirmative defense provision that 

purports to bar any enforcement action 

for injunctive relief for violations of 

emission limitations is inconsistent 

with the requirements of CAA sections 

113 and 304. In addition, the provision 

does not contain elements for 

establishing the affirmative defense 

consistent with all of the recommended 

criteria in the EPA’s SSM Policy. The 

EPA acknowledges that the SSM Policy 

is only guidance concerning what types 

of SIP provisions could be consistent 

with the requirements of the CAA. 

Nonetheless, through this rulemaking, 

the EPA is proposing to determine that 

Regulation 1.07 does not include criteria 

that are sufficiently robust to qualify as 

an acceptable affirmative defense 

provision for purposes of SIP 

requirements. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Jefferson County 

Air Regulation 1.07.131 The EPA 

believes that this provision allows for 

exemptions from the otherwise 

applicable SIP emission limitations, and 

that such exemptions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs in sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In 

addition, Regulation 1.07 allows for 

such exemptions through a local 

official’s unilateral exercise of 

discretionary authority that is 

insufficiently bounded and includes no 

additional public process at the state or 

federal level, and such provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions. Moreover, the 

discretion created by these provisions 

allows case-by-case exemptions from 

emission limitations, when such 

exemptions are not permissible in the 

first instance. For these reasons, the 

EPA is proposing to find that Regulation 

1.07 is substantially inadequate to meet 

CAA requirements and thus proposing 

to issue a SIP call with respect to this 

provision. 

The EPA also proposes to grant the 

Petition because Regulation 1.07 

contains an impermissible exemption 

for excess emissions during emergency 

events, conditioned upon an affirmative 

defense provision that is inconsistent 

with the criteria recommended in the 

EPA’s SSM Policy. Regulation 1.07 can 

be read to authorize the district to grant 

an exemption under § 2.1 and § 5, and 

such an interpretation could preclude 

the EPA and the public from bringing an 

enforcement action. Furthermore, the 

affirmative defense provision is 

impermissible because it does not 

explicitly limit the defense to monetary 

penalties, and it does not include 

sufficient criteria to assure that sources 

seeking to raise the affirmative defense 

have in fact been properly designed, 

maintained, and operated, and to assure 

that sources have taken all appropriate 

steps to minimize excess emissions. The 

provision therefore also fails to be 

sufficiently narrowly drawn to justify 

shielding from monetary penalties for 

violations. For these reasons, the EPA is 

proposing to find that Regulation 1.07 is 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to this provision. 

6. Mississippi 

a. Petitioner’s Analysis 

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).132 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.’’ 

Specifically, the Petitioner argued that 

the EPA’s guidance for affirmative 

defenses recommends that they ‘‘are not 

appropriate where a single source or a 

small group of sources has the potential 

to cause an exceedance of the NAAQS 

or PSD increments,’’ 133 and 

Mississippi’s provisions do not contain 

a restriction to address this point. 

Further, the Petitioner argued that the 

affirmative defenses in Mississippi’s SIP 

are not limited to actions seeking civil 

penalties and that they fail to meet other 

criteria ‘‘that EPA requires for 

acceptable defense provisions.’’ 134

Finally, the Petitioner argued that the 

CAA and the EPA’s SSM Policy 

interpreting it do not allow affirmative 

defenses for excess emissions during 

maintenance events under any 

circumstances. 

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).135 Within that 

provision, 11–1–2 Miss. Code R. 

§ 10.2(a)(2) specifies that emission 

limitations apply during startup and 

shutdown except ‘‘when a startup or 

shutdown is infrequent, the duration of 

the excess emissions is brief in each 

event, and the design of the source is 

such that the period of excess emissions 

cannot be avoided without causing 

damage to the equipment or persons.’’ 

The Petitioner argued that such an 

exemption is inconsistent with the 

requirements of the CAA and the EPA’s 

SSM Policy. The Petitioner argued that 

the CAA and the EPA’s interpretation of 

the CAA in the SSM Policy require that 

all such excess emissions be treated as 

violations. 

b. The EPA’s Evaluation 

The EPA disagrees with the 

Petitioner’s contention that no 

affirmative defense provisions are 

permissible in SIPs under the CAA. As 

explained in more detail in section IV 

of this notice, the EPA interprets the 

CAA to allow affirmative defense 

provisions for malfunctions. So long as 

these provisions are narrowly drawn 

and consistent with the CAA, as 

recommended in the EPA’s guidance for 

affirmative defense provisions in SIPs, 


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the EPA believes that states may elect to 

have affirmative defense provisions for 

malfunctions. 

The EPA agrees, however, that the 

affirmative defense contained in 11–1– 

2 Miss. Code R. § 10.1 for upsets is not 

an acceptable affirmative defense 

provision under the CAA as interpreted 

in the EPA’s SSM Policy. Section 10.1 

provides that ‘‘[t]he occurrence of an 

upset * * * constitutes an affirmative 

defense to an enforcement action 

brought for noncompliance with 

emission standards,’’ conditioned upon 

the source meeting a series of criteria. 

Although the EPA believes that 

narrowly drawn affirmative defenses are 

permitted under the Act for malfunction 

events (i.e., upsets) (see section VII.B of 

this notice), the EPA’s interpretation of 

the CAA is that an affirmative defense 

can only shield the source from 

monetary penalties and cannot be a bar 

to injunctive relief. The provisions of 

11–1–2 Miss. Code R. § 10.1 applicable 

to upsets appears to create a bar not just 

to monetary penalties but also to 

injunctive relief. An affirmative defense 

provision that purports to bar any 

enforcement action for injunctive relief 

for violations of emission limitations is 

inconsistent with the requirements of 

CAA sections 113 and 204. 

In addition, the EPA agrees that 11– 

1–2 Miss. Code R. § 10.1 creates an 

affirmative defense for upsets with 

conditions that are not fully consistent 

with the criteria that the EPA 

recommends in the SSM Policy. The 

EPA acknowledges that the SSM Policy 

is only guidance concerning what types 

of SIP provisions could be consistent 

with the requirements of the CAA. 

Nonetheless, through this rulemaking, 

the EPA is proposing to determine that 

11–1–2 Miss. Code R. § 10.1 does not 

include criteria that are sufficiently 

robust to qualify as an acceptable 

affirmative defense provision. Although 

this provision does contain many 

criteria that are comparable to those the 

EPA recommends, it does not address 

several that the EPA believes to be 

necessary to assure that the affirmative 

defense is available only in appropriate 

circumstances. For example, 11–1–2 

Miss. Code R. § 10.1 does not contain 

criteria requiring the source to show 

that the malfunction event was not part 

of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance. In addition, as discussed 

in section VII.B of this notice, the EPA 

believes that affirmative defense 

provisions should address the issue of 

single sources or groups of sources that 

have the potential to have adverse 

impacts on the NAAQS or PSD 

increments in one of two recommended 

ways. On its face, 11–1–2 Miss. Code R. 

§ 10.1 does not appear to address this 

issue in either way. The EPA believes 

that the inclusion of the bar to 

enforcement for injunctive relief and the 

insufficiently robust qualifying criteria 

render 11–1–2 Miss. Code R. § 10.1 

substantially inadequate to meet CAA 

requirements. 

The EPA also agrees with the 

Petitioner that the affirmative defense 

for excess emissions during 

maintenance provided in 11–1–2 Miss. 

Code R. § 10.3 is not consistent with 

CAA requirements. As explained in 

sections IV and VII.C of this notice, the 

EPA believes that affirmative defenses 

are only permissible under the CAA in 

the case of events that are beyond the 

control of the source, i.e., malfunctions. 

Affirmative defense provisions are not 

appropriate in the case of planned 

source actions, such as maintenance, 

because sources should be expected to 

comply with applicable emission 

limitations during those normal planned 

and predicted modes of source 

operation. Although this provision does 

contain parameters to limit its 

availability, it still provides an 

affirmative defense that is inconsistent 

with CAA requirements. The EPA 

believes that the inclusion of the 

affirmative defense for excess emissions 

during maintenance in 11–1–2 Miss. 

Code R. § 10.3 renders that provision 

substantially inadequate to meet CAA 

requirements. 

The EPA also agrees that 11–1–2 Miss. 

Code R. § 10.2(a)(2) contains an 

exemption for excess emissions during 

startup and shutdown events that is 

inconsistent with CAA requirements. 

The EPA acknowledges that the state 

has imposed some parameters on the 

scope of the exemption by requiring that 

the events be infrequent, of short 

duration, and required to avoid damage 

to equipment or people. However, the 

EPA does not interpret the CAA to allow 

for exemptions for excess emissions 

during startup and shutdown. As 

discussed in section VII.A of this notice, 

the EPA believes that sources should be 

designed, operated, and maintained so 

that they can comply with applicable 

SIP emission limitations during normal 

modes of source operation. If 

appropriate, the state may elect to 

develop special emission limitations or 

other control measures that apply 

during startup and shutdown. The EPA 

believes that the inclusion of an 

exemption for excess emissions during 

startup and shutdown in 11–1–2 Miss. 

Code R. § 10.2 is substantially 

inadequate to meet CAA requirements. 

c. The EPA’s Proposal 

The EPA proposes to grant 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. 

None of these provisions is consistent 

with the requirements of the CAA as 

interpreted in the EPA’s 

recommendations in the EPA’s SSM 

Policy. The EPA believes that 11–1–2 

Miss. Code R. § 10.1 and 11–1–2 Miss. 

Code R. § 10.3 create affirmative 

defenses that are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs as required by sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In 

addition, by purporting to create a bar 

to enforcement that applies not just to 

monetary penalties but also to 

injunctive relief, these provisions are 

inconsistent with the requirements of 

CAA sections 113 and 304. By not 

including sufficient criteria to assure 

that sources seeking to raise these 

affirmative defenses have in fact been 

properly designed, maintained, and 

operated, and to assure that sources 

have taken all appropriate steps to 

minimize excess emissions, 11–1–2 

Miss. Code R. § 10.1 also fails to be 

sufficiently narrowly drawn to justify 

shielding from monetary penalties for 

violations. The comparable affirmative 

defense for maintenance in 11–1–2 

Miss. Code R. § 10.3 is not consistent 

with CAA requirements because 

maintenance is a normal mode of source 

operation during which the source 

should be expected to comply with the 

applicable emission limitations. Thus, 

these provisions are not appropriate as 

affirmative defense provisions because 

they are inconsistent with fundamental 

requirements of the CAA. 

The EPA is proposing to find that 11– 

1–2 Miss. Code R. § 10.2 is substantially 

inadequate to meet CAA requirements 

because it provides an exemption for 

excess emissions that occur during 

startup and shutdown, which are 

normal modes of source operation 

during which sources should comply 

with applicable emission limitations. 

Such an exemption provision is 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). 

For these reasons, the EPA is 

proposing to find that these provisions 

are substantially inadequate to meet 

CAA requirements and thus proposing 

to issue a SIP call with respect to these 

provisions. 


srobinson on DSK4SPTVN1PROD with PROPOSALS3
12510 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

136Petition at 57–58. 

137Petition at 58. 

138Petition at 58. 

139Petition at 58. 

7. North Carolina 

a. Petitioner’s Analysis 

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)).136 The Petitioner 

argued that both provisions allow a state 

official to exempt sources from 

compliance with otherwise applicable 

SIP emission limitations, and therefore 

both provisions allow a state official to 

decide whether a violation has 

occurred. This decision would preclude 

enforcement action by the EPA and 

citizens for both civil penalties and 

injunctive relief, and such an 

interpretation is inconsistent with the 

CAA and the EPA’s SSM policy 

interpreting the CAA. The Petitioner 

noted that the director’s discretion 

provision for malfunctions provided by 

15A N.C. Admin. Code 2D.0535(c) is 

limited to 15 percent of operating time 

during each calendar year. According to 

the Petitioner, this temporal limit does 

not render the provision permissible 

under the CAA and the EPA’s SSM 

policy interpreting the CAA, because 

the limit ‘‘does nothing to ensure that 

ambient air quality standards are 

met.’’ 137

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitations must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. 

The EPA believes that 15A N.C. 

Admin. Code 2D.0535(c) and 15A N.C. 

Admin. Code 2D.0535(g) are 

impermissible as insufficiently bounded 

director’s discretion provisions. The 

explicit text of 15A N.C. Admin. Code 

2D.0535(c) states that ‘‘[a]ny excess 

emissions * * * are considered a 

violation * * * unless the owner or 

operator of the source of excess 

emissions demonstrates to the Director, 

that the excess emissions are the result 

of a malfunction.’’ Similarly, 15A N.C. 

Admin. Code 2D.0535(g) provides that a 

state official may determine that excess 

emissions during startup and shutdown 

are unavoidable, in which case 

emissions exceeding the otherwise 

applicable SIP limitations are not 

considered violations. These provisions 

vest the state official with unilateral 

power to grant an exemption from the 

otherwise applicable SIP emission 

limitation, without any public process 

at the state or federal level. Such a 

determination that the excess emissions 

in a given event do not constitute a 

violation could preclude enforcement 

by the EPA or through a citizen suit. 

While both provisions contain a list of 

factors that the state official ‘‘shall 

consider’’ in making the discretionary 

determination, they nevertheless 

empower the state official to create an 

exemption from the emission 

limitations, and such an exemption is 

impermissible in the first instance. Such 

a director’s discretion provision 

undermines the emission limitations in 

the SIP, and the emissions reductions 

they are intended to achieve, and 

renders them less enforceable by the 

EPA or through a citizen suit. The EPA 

believes that the inclusion of an 

insufficiently bounded director’s 

discretion provision in 15A N.C. 

Admin. Code 2D.0535(c) and 15A N.C. 

Admin. Code 2D.0535(g) is thus a 

substantial inadequacy and renders 

these specific SIP provisions 

impermissible for this reason. 

Finally, the EPA notes that 15A N.C. 

Admin. Code 2D.0535(c) and 15A N.C. 

Admin. Code 2D.0535(g) contain a 

number of criteria for consideration by 

the state official when deciding whether 

the excess emissions should be treated 

as exempt and thus not as a violation. 

Superficially, these criteria are similar 

to those recommended by the EPA for 

affirmative defense provisions for 

malfunctions to meet CAA 

requirements, but they are not presented 

as criteria for an affirmative defense. 

Instead, each provision is structured so 

that if the source has met these criteria, 

the state official will deem the excess 

emissions not a violation. Moreover, 

instead of requiring that the source 

establish these facts in an administrative 

or judicial process, the provision 

appears to authorize the state official to 

make a unilateral determination 

whether the emissions are a violation 

and thus appears to bar enforcement by 

the EPA or through a citizen suit. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 15A N.C. 

Admin. Code 2D.0535(c) and 15A N.C. 

Admin. Code 2D.0535(g). The EPA 

believes that both of these provisions 

could be read to allow for exemptions 

from 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. 

Moreover, the discretion created by this 

provision could be read to allow caseby-case exemptions from emission 

limitations when such exemptions are 

not permissible in the first instance. 

Such exemption provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, by creating 

these impermissible exemptions, the 

state has defined violations in a way 

that would interfere with effective 

enforcement by the EPA and citizens for 

excess emissions during these events as 

provided in CAA sections 113 and 304. 

For these reasons, the EPA is proposing 

to find 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 is 

proposing to issue a SIP call with 

respect to these provisions. 

8. North Carolina: Forsyth County 

a. Petitioner’s Analysis 

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)).138 The 

Petitioner argued that these ‘‘local 

regulations have the same problems as 

the [North Carolina] state-wide 

regulations’’ addressed in the previous 

section.139 The Petitioner argued that 

both provisions allow the local official 

to exempt sources from compliance 

with otherwise applicable SIP emission 

limitations, and therefore both 

provisions allow the local official to 

decide whether a violation has 

occurred. This decision would preclude 

action by the EPA and citizens for both 

civil penalties and injunctive relief, and 

such a provision is inconsistent with the 


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140Petition at 65–66. 

CAA and the EPA’s SSM policy 

interpreting the CAA. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a government official’s 

discretion. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitations must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. 

The EPA believes that Forsyth County 

Code, ch. 3, 3D.0535(c) and Forsyth 

County Code, ch. 3, 3D.0535(g) are 

impermissible as insufficiently bounded 

director’s discretion provisions. Forsyth 

County Code, ch. 3, 3D.0535(c) states 

that ‘‘[a]ny excess emissions * * * are 

considered a violation * * * unless the 

owner or operator of the source of 

excess emissions demonstrates to the 

Director, that the excess emissions are 

the result of a malfunction.’’ Similarly, 

Forsyth County Code, ch. 3, 3D.0535(g) 

provides that a local official may 

determine that excess emissions during 

startup and shutdown are unavoidable, 

in which case emissions exceeding the 

otherwise applicable SIP limitations are 

not considered violations. These 

provisions vest the local official with 

unilateral power to grant an exemption 

from the otherwise applicable SIP 

emission limitation, without any public 

process at the local, state, or federal 

level. Such a determination that the 

excess emissions in a given event do not 

constitute a violation could preclude 

enforcement by the EPA or through a 

citizen suit. While both provisions 

contain a list of factors that the local 

official ‘‘shall consider’’ in making the 

discretionary determination, they 

nevertheless empower the local official 

to create an exemption from the 

emission limitation, and such an 

exemption is impermissible in the first 

instance. Such a director’s discretion 

provision undermines the emission 

limitations in the SIP, and the emissions 

reductions they are intended to achieve, 

and renders them less enforceable by 

the EPA or through a citizen suit. The 

EPA believes that the inclusion of an 

insufficiently bounded director’s 

discretion provision in Forsyth County 

Code, ch. 3, 3D.0535(c) and Forsyth 

County Code, ch. 3, 3D.0535(g) is thus 

a substantial inadequacy and renders 

these specific SIP provisions 

impermissible for this reason. 

As with the comparable statewide SIP 

provisions, the EPA notes that Forsyth 

County Code, ch. 3, 3D.0535(c) and 

Forsyth County Code, ch. 3, 3D.0535(g) 

also would not qualify as affirmative 

defense provisions consistent with CAA 

requirements. The provisions authorize 

the local official to deem excess 

emissions exempt and thus not subject 

to enforcement for injunctive relief. The 

provisions also appear to authorize the 

local official to make a unilateral 

determination that the emissions are not 

a violation and thus to bar enforcement 

by the EPA or through a citizen suit. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Forsyth County 

Code, ch. 3, 3D.0535(c) and Forsyth 

County Code, ch. 3, 3D.0535(g). The 

EPA believes that both of these 

provisions could be read to allow for 

exemptions from otherwise applicable 

SIP emission limitations through a local 

official’s unilateral exercise of 

discretionary authority that is 

insufficiently bounded and includes no 

additional public process at the local, 

state, or federal level. Moreover, the 

discretion created by this provision 

could be read to allow case-by-case 

exemptions from emission limitations 

when such exemptions are not 

permissible in the first instance. Such 

exemption provisions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs as required by 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). In addition, by creating these 

impermissible exemptions, the air 

agency has defined violations in a way 

that would interfere with effective 

enforcement by the EPA and citizens for 

excess emissions during these events as 

provided in CAA sections 113 and 304. 

For these reasons, the EPA is proposing 

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 is proposing to issue a SIP call 

with respect to these provisions. 

9. South Carolina 

a. Petitioner’s Analysis 

The Petitioner objected to three 

provisions in the South Carolina SIP, 

arguing that they contained 

impermissible source category- and 

pollutant-specific exemptions.140 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 specialuse 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 startup, shutdown, or 

malfunction events (S.C. Code Ann. 

Regs. St 4(XI)(D)(4)). The Petitioner 

argued that such exemptions violate the 

fundamental CAA requirement that all 

excess emissions be considered 

violations and that they interfere with 

enforcement by the EPA and citizens. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations. In 

accordance with CAA sections 

110(a)(2)(A) and 302(k), SIPs must 

contain ‘‘emission limitations’’ and 

those limitations must be continuous. 

Thus, any excess emissions above the 

level of the applicable SIP emission 

limitation must be considered a 

violation of such limitation, regardless 

of whether the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, maintenance, or 

malfunctions are not violations of the 

applicable SIP emission limitations are 

inconsistent with the fundamental 

requirements of the CAA. 

The first provision identified by the 

Petitioner states that ‘‘[t]he opacity 

standards set forth above do not apply 

during startup or shutdown.’’ The EPA 

agrees with the Petitioner that the effect 

of this language is to exempt excess 

emissions that occur during startup or 

shutdown from otherwise applicable 

opacity standards, essentially treating 

such emissions as non-violations. The 

EPA believes that such automatic 

exemptions are impermissible under the 

CAA. By having SIP provisions that 

define what would otherwise be 

violations of the applicable SIP 

emission limitations as non-violations, 

the state has effectively negated the 

ability of the EPA or the public to 

enforce against those violations. 

Therefore, the EPA believes that the 

inclusion of such an automatic 

exemption in S.C. Code Ann. Regs. 61– 

62.5 St 1(C) is impermissible and 

renders the provision a substantial 

inadequacy under the CAA. 

With respect to the Petitioner’s 

second objection relating to the 

exemption for special-use burners, 

however, the EPA disagrees with the 


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141Petition at 67–69. 

Petitioner’s characterization of the 

provision. S.C. Code Ann. Regs. 61–62.5 

St 5.2(I)(b)(14) provides: ‘‘The following 

sources are exempt from all 

requirements of this regulation unless 

otherwise specified: * * * (14) Special 

use burners, such as start-up/shut-down 

burners, that are operated less than 500 

hours a year.’’ The Petitioner argued 

that this provision provides an 

exemption from otherwise applicable 

NOx limitations for excess emissions 

that occur during startup or shutdown. 

Although this provision superficially 

resembles an exemption for emissions 

during startup and shutdown, the EPA 

interprets this provision merely to 

define a specific source category— 

special-use burners—that is not subject 

to control under S.C. Code Ann. Regs. 

61–62.5 St 5.2, Control of Oxides of 

Nitrogen (NOX). In other words, the 

provision reflects that regulation of 

special-use burners is not necessary in 

order to meet the applicable RACT 

requirements or any other CAA 

requirements for NOX emissions in this 

area. Rather than an exemption for NOX

emissions during startup and shutdown 

for a source category that is regulated for 

NOX, this provision merely reflects that 

this category of source is not subject to 

regulation under S.C. Code Ann. Regs. 

61–62.5 St 5.2. Therefore, the EPA 

disagrees with the Petitioner that S.C. 

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

renders the South Carolina SIP 

substantially inadequate. 

Finally, the EPA agrees that S.C. Code 

Ann. Regs. St 4(XI)(D)(4) implicitly 

includes impermissible exemptions for 

excess emissions during startup, 

shutdown, and malfunction events for 

the affected sources. The provision 

states that ‘‘[t]he Department will 

consider periods of excess emissions 

reported under Subpart D(3) of this 

section to be indicative of a violation if’’ 

the emissions from the specified source 

categories exceed certain limits over 

certain time periods. For example, for 

recovery furnaces, S.C. Code Ann. Regs. 

St 4(XI)(D)(4)(b) specifies that excess 

emissions will be ‘‘indicative of a 

violation’’ if ‘‘(a) the number of 12 hour 

exceedances from recovery furnaces is 

greater than 1% of the total number of 

contiguous 12 hour periods in a quarter 

(excluding periods of startup, 

shutdown, or malfunction * * *).’’ The 

parenthetical explicitly excludes the 

excess emissions that occur during 

startup, shutdown, and malfunction, 

automatically treating those emissions 

as non-violations. The other two source 

category-specific provisions to be 

considered in determining whether 

excess emissions are indicative of a 

violation contain similar parenthetical 

exclusions. Therefore, these provisions 

could reasonably be construed to 

preclude the EPA and the public from 

enforcing against violations that occur 

during these SSM events at these 

sources. The EPA believes that S.C. 

Code Ann. Regs. St 4(XI)(D)(4) includes 

automatic exemptions for excess 

emissions during SSM events for the 

three categories of sources and is thus 

substantially inadequate to satisfy CAA 

requirements. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to S.C. Code Ann. 

Regs. 61–62.5 St 1(C). The EPA believes 

that S.C. Code Ann. Regs. 61–62.5 St 

1(C) allows for an exemption from 

otherwise applicable SIP emission 

limitations and that such exemptions 

are inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

The EPA also proposes to grant the 

Petition with respect to S.C. Code Ann. 

Regs. St 4(XI)(D)(4). This provision 

appears to define violations at three 

source categories in a way that excludes 

excess emissions that occur during SSM 

events. It is unclear whether this 

provision is intended only to apply to 

the exercise of enforcement discretion 

by state personnel, but the EPA believes 

that it could reasonably be interpreted 

to preclude the EPA and citizen 

enforcement as well. Because S.C. Code 

Ann. Regs. St 4(XI)(D)(4) appears to 

define violations of the applicable 

emission limitations in a way that 

excludes excess emissions during SSM 

events, it is inconsistent with the 

fundamental requirements of CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For these reasons, the EPA is 

proposing to find that S.C. Code Ann. 

Regs. 61–62.5 St 1(C) and S.C. Code 

Ann. Regs. St 4(XI)(D)(4) are 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to these provisions. 

However, the EPA proposes to deny 

the Petition with respect to S.C. Code 

Ann. Regs. 61–62.5 St 5.2(I)(b)(14), 

which does not exempt excess 

emissions from an otherwise applicable 

SIP emission limitation during startup 

and shutdown but rather excludes a 

specific source category from regulation 

under the South Carolina SIP, because 

such regulation was deemed 

unnecessary to meet other applicable 

CAA requirements. As a consequence, 

this provision does not constitute a 

substantial inadequacy in the SIP. 

10. Tennessee 

a. Petitioner’s Analysis 

The Petitioner objected to three 

provisions in the Tennessee SIP.141

First, the Petitioner objected to two 

provisions that authorize a state official 

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)). The Petitioner 

argued that together, these provisions 

constitute a ‘‘blanket exemption from 

enforcement at the unfettered discretion 

of’’ a state official. Further, the 

Petitioner contended that once a 

violation has been ‘‘excused’’ by the 

state official, that decision could 

preclude enforcement by the EPA or 

citizens in violation of the CAA. 

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.’’ The Petitioner argued that 

Tenn. Comp. R. & Regs. 1200–3–5–.02(1) 

is inconsistent with EPA’s interpretation 

of the CAA because it operates as a 

blanket exemption for opacity 

violations. 

b. The EPA’s Evaluation 

While the Petitioner suggested that 

Tenn. Comp. R. & Regs. 1200–3–20– 

.07(1) and Tenn. Comp. R. & Regs. 

1200–3–20–.07(3) combine to operate as 

an impermissible discretionary 

exemption, the EPA believes that these 

provisions are better understood as 

attempting to provide the state agency 

with the discretion to decide whether to 

pursue an enforcement action. As 

discussed more fully in section IX.A of 

this notice, the EPA’s SSM Policy has 

consistently encouraged states to utilize 

traditional enforcement discretion 

within appropriate bounds for 

violations relating to excess emissions 

that occur during SSM events. 

Moreover, 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. However, such enforcement 

discretion provisions in a SIP must be 

‘‘state-only,’’ meaning that the 


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142Petition at 69. 

143 51 CFR 31.212(c); see also ‘‘Credible Evidence 

Revisions,’’ 62 FR 8155 at 8314 (Feb. 24, 1997). 144Petition at 69–70. 

provisions apply only to the state’s own 

enforcement personnel and not to the 

EPA or to others. Here, the Tennessee 

SIP goes too far because a court could 

reasonably conclude that the provisions 

in question preclude the EPA and the 

public from enforcing against violations 

that occur during SSM events if the state 

official chooses to ‘‘excuse’’ such 

violations. Therefore, the EPA 

ultimately agrees with the Petitioner 

that Tenn. Comp. R. & Regs. 1200–3–20– 

.07(1) and Tenn. Comp. R. & Regs. 

1200–3–20–.07(3) are substantially 

inadequate to satisfy CAA requirements. 

In regard to Tenn. Comp. R. & Regs. 

1200–3–5–.02(1), the EPA agrees with 

the Petitioner that this provision 

operates as an impermissible 

discretionary exemption because it 

allows a state official to excuse excess 

visible emissions after giving ‘‘due 

allowance’’ to the fact that they were 

emitted during startup or shutdown 

events. The EPA believes that this 

provision is impermissible because it 

creates unbounded discretion that 

purports to make a state official the 

unilateral arbiter of whether the excess 

emissions in a given event constitute a 

violation of otherwise applicable SIP 

emission limitations. More importantly, 

the provision purports to authorize the 

state official to create exemptions from 

applicable SIP emission limitations 

when such exemptions are 

impermissible in the first instance. As 

discussed in more detail in section 

VII.A of this notice, these types of 

director’s discretion provisions 

undermine the purpose of emission 

limitations and the reductions they are 

intended to achieve, thereby rendering 

them less enforceable by the EPA or 

through a citizen suit. The EPA believes 

that the inclusion of such a director’s 

discretion provision in Tenn. Comp. R. 

& Regs. 1200–3–5–.02(1) is therefore a 

substantial inadequacy that renders the 

provision impermissible under the 

CAA. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Tenn. Comp. R. 

& Regs. 1200–3–20–.07(1) and Tenn. 

Comp. R. & Regs. 1200–3–20–.07(3). 

These enforcement discretion 

provisions could reasonably be 

interpreted to preclude EPA and citizen 

enforcement of applicable SIP emission 

limitations, in violation of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

The EPA also proposes to grant the 

Petition with respect to Tenn. Comp. R. 

& Regs. 1200–3–5–.02(1). The discretion 

created by this provision allows for 

revisions of the applicable SIP emission 

limitations without meeting the 

applicable SIP revision requirements of 

the CAA, and it allows case-by-case 

exemptions from emission limitations 

when such exemptions are not 

permissible in the first instance. Thus, 

this provision is also inconsistent with 

CAA sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). For these reasons, the EPA 

is proposing to find that these 

provisions are substantially inadequate 

to meet CAA requirements and proposes 

to issue a SIP call with respect to these 

provisions. 

11. Tennessee: Knox County 

a. Petitioner’s Analysis 

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)).142 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.’’ The 

Petitioner argued that this provision 

would prevent reports of SSM 

conditions, which owners and operators 

are required to submit per Knox County 

Regulation 34.1(A), from being used as 

evidence in citizen suits, thereby 

undermining the express authorization 

of citizen enforcement actions under the 

CAA. 

b. The EPA’s Evaluation 

The EPA agrees with the Petitioner 

that Knox County Regulation 32.1(C) is 

inconsistent with the fundamental 

requirements of the CAA. Section 

113(e)(1) of the CAA requires a court to 

take into consideration ‘‘the duration of 

the violation as established by any 

credible evidence’’ in determining 

penalties in citizen enforcement actions. 

Moreover, section 114(c) of the CAA 

states that ‘‘[a]ny records, reports or 

information’’ obtained from sources 

‘‘shall be available to the public * * * 

.’’ In accordance with these statutory 

mandates, the EPA promulgated its 

‘‘credible evidence rule’’ in 1997. That 

rule states: ‘‘[f]or purpose of * * * 

establishing whether or not a person has 

violated or is in violation of any 

standard * * *, the [SIP] must not 

preclude the use, including the 

exclusive use, of any credible evidence 

or information, relevant to whether a 

source would have been in compliance 

with applicable requirements * * *’’ 143

The EPA believes that the Knox 

County Regulation 32.1(C) runs afoul of 

these statutory and regulatory 

provisions. Knox County Regulation 

32.1(c) explicitly bars a state official’s 

determination that there has been a 

violation of a SIP emission limitation 

from being used as evidence in a citizen 

enforcement action, even though SIPs 

are prohibited from precluding the use 

of such evidence. The provision could 

also be interpreted to bar citizens from 

using evidence of a violation used by 

the state official in making such a 

determination, including reports of SSM 

conditions. Consequently, Knox County 

Regulation 32.1(C) is inconsistent with 

the fundamental requirements of CAA 

sections 113(e)(1) and 114(c) and the 

credible evidence rule. Moreover, by 

seeking to restrain the ability of private 

citizens to pursue enforcement actions, 

the provision is inconsistent with the 

fundamental enforcement structure 

created by Congress in CAA section 304. 

As such, the EPA believes that the Knox 

County Regulation 32.1(C) constitutes a 

substantial inadequacy in the Tennessee 

SIP. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Knox County 

Regulation 32.1(C). This provision 

precludes the use of a state 

determination that a violation has 

occurred from being used as evidence in 

a citizen enforcement action, in 

violation of CAA sections 113(e)(1), 

114(c), and 304, and the credible 

evidence rule. Therefore, the EPA is 

proposing to find that this provision is 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to this provision in 

the Knox County portion of the state’s 

SIP. 

12. Tennessee: Shelby County 

a. Petitioner’s Analysis 

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. 1200–3–20.144 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. The Petitioner argued that 

once Tennessee changes its regulations, 

those revised provisions will be 


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145The EPA notes that the Petitioner also 

identified several additional pollutant-specific and 

source category-specific provisions in the Illinois 

SIP that it alleged are inconsistent with the CAA 

and the EPA’s SSM Policy. However, the Petitioner 

did not request that the EPA address those SIP 

provisions in its remedy request, and thus the EPA 

is not addressing those provisions in this action. 

The EPA may elect to evaluate those provisions in 

a later action. 

146Petition at 33–36. 

147Petition at 35 (citing Ill. Envtl. Prot. Agency, 

Statement of Basis for a Planned Revision of the 

CAAPP Permit for U.S. Steel Corp. Granite City 

Works (Mar. 15, 2011), at 26–27). The EPA notes 

that the Petitioner appears to have cited the 

incorrect portion of this document and that the 

correct citation is to pages 36–37. 

148The EPA notes that there are a number of other 

provisions in the same portion of the Illinois SIP 

that are integral to the regulation of startups, 

shutdowns, and malfunctions. Those provisions 

include Ill. Admin. Code tit. 35 § 201.149, Ill. 

Admin. Code tit. 35 § 201.263, and Ill. Admin. Code 

tit. 35 § 201.264. The Petitioner did not object to 

these provisions in its Petition, but because they are 

part of a functional scheme in the SIP, the state may 

elect to revise these provisions in accordance with 

the EPA’s proposal. 

effective in the Shelby County Code but 

will not be effective as part of the SIP 

until they are submitted to the EPA and 

approved. 

b. The EPA’s Evaluation 

The EPA agrees that because Shelby 

County Code § 16–87 incorporates by 

reference provisions in the Tennessee 

SIP that are substantially inadequate, 

the Shelby County portion of the 

Tennessee SIP is likewise substantially 

inadequate to satisfy the fundamental 

requirements of the CAA for the same 

reasons. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Shelby County 

Code § 16–87. For the same reasons that 

the EPA has determined that the 

Tennessee SIP is substantially 

inadequate to meet CAA requirements, 

the EPA believes that the Shelby County 

portion of the Tennessee SIP is 

substantially inadequate as well. 

Therefore, the EPA proposes to issue a 

SIP call with respect to this provision in 

the Shelby County portion of the state’s 

SIP. 

F. Affected States in EPA Region V 

1. Illinois 

a. Petitioner’s Analysis 

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, and such 

exemptions are impermissible under the 

CAA because the statute and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all such excess 

emissions be treated as violations.145 146

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). 

The Petitioner noted that Illinois has 

claimed that its SIP provisions do not 

provide for advance permission to 

violate emission limitations but that its 

SIP provisions instead authorize ‘‘caseby-case claims of exemption.’’ 147 The 

Petitioner argued that despite this 

explanation, the language in the SIP is 

not clear and appears to grant advance 

permission for violations during 

malfunction and startup events. 

Furthermore, the Petitioner objected 

because the effect of granting that 

permission would be to provide the 

source with an absolute defense to any 

later enforcement action, that is, ‘‘a 

defense [would] attach[] at the state’s 

discretion.’’ The Petitioner argued that 

this approach would violate the 

fundamental requirement that all excess 

emissions be considered violations. 

Finally, 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.’’ The 

Petitioner asserted that ‘‘if * * * the 

‘‘prima facie defense’’ is anything short 

of the ‘‘affirmative defense’’ as 

contemplated in the 1999 SSM 

Guidance, then ‘‘it clearly has the 

potential to interfere with EPA and 

citizen enforcement.’’ 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for discretionary exemptions from 

otherwise applicable SIP emission 

limitations. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. The EPA agrees that together 

Ill. Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262, and Ill. 

Admin. Code tit. 35 § 201.265 148 can be 

read to create exemptions by 

authorizing a state official to determine 

in the permitting process that the excess 

emissions during startup and 

malfunction will not be considered 

violations of the applicable emission 

limitations. The language of the SIP on 

its face appears to permit the state 

official to grant advance permission to 

‘‘continue to operate during a 

malfunction or breakdown’’ or ‘‘to 

violate the standards or limitations 

* * * during startup’’ (Ill. Admin. Code 

tit. 35 § 201.261(a)). 

The EPA notes that the Petitioner’s 

characterization of Illinois’s 

interpretation of its SIP is not accurate. 

While the Petitioner alleged that Illinois 

believed its SIP provisions to authorize 

‘‘case-by-case exemptions,’’ Illinois in 

fact described the effect of the 

permission granted under these 

provisions as providing the source with 

the: 

* * * opportunity to make a claim of 

malfunction/breakdown or startup, with the 

viability of such claim subject to specific 

review against the requisite requirements. 

Indeed, 35 IAC 201.265 clearly states that 

violating an applicable state standard even if 

consistent with any expression of authority 

regarding malfunction/breakdown or startup 

set forth in a permit shall only constitute a 

prima facie defense to an enforcement action 

for violation of said regulation. 

(Ill. Envtl. Prot. Agency, Statement of 

Basis for a Planned Revision of the 

CAAPP Permit for U.S. Steel Corp. 

Granite City Works (March 15, 2011), at 

37.) Thus, the state claimed that under 

its SIP provisions, any excess emissions 

during periods of startup or malfunction 

would still constitute a ‘‘violation’’ and 

that the only effect of the permission 

granted by the state official in the 

permit would be to allow a source to 

assert a ‘‘prima facie defense’’ in an 

enforcement action. Even in light of this 

explanation, the EPA agrees that the 

plain language of the SIP provisions do 

not make explicit this limitation on the 


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149The EPA notes that the Petitioner also 

identified several additional pollutant-specific and 

source category-specific provisions in the Indiana 

SIP that it alleged are inconsistent with the CAA 

and the EPA’s SSM Policy. However, the Petitioner 

did not request that the EPA address those SIP 

provisions in its remedy request, and thus the EPA 

is not addressing those provisions in this action. 

Continued 

state official’s authorization to grant 

exemptions. Indeed, by expressly 

granting ‘‘permission,’’ the provisions 

are ambiguous and could be read as 

allowing the state official to be the 

unilateral arbiter of whether the excess 

emissions in a given malfunction, 

breakdown, or startup event constitute a 

violation. By deciding that an 

exceedance of the emission limitation 

was not a ‘‘violation,’’ exercise of this 

discretion could preclude enforcement 

by the EPA or through a citizen suit. 

Most importantly, however, the grant of 

permission would authorize the state 

official to create an exemption from the 

otherwise applicable SIP emission 

limitation, and such an exemption is 

impermissible in the first instance. Such 

a director’s discretion provision 

undermines the emission limitations 

and the emission reductions they are 

intended to achieve and renders them 

less enforceable by the EPA or through 

a citizen suit. The EPA believes that the 

inclusion of director’s discretion 

provisions in Ill. Admin. Code tit. 35 

§ 201.261, Ill. Admin. Code tit. 35 

§ 201.262, and Ill. Admin. Code tit. 35 

§ 201.265 is thus a substantial 

inadequacy and renders these specific 

SIP provisions impermissible for this 

reason. 

Furthermore, even if the Illinois SIP 

provisions cited by the Petitioner are 

intended to provide only an affirmative 

defense to enforcement, rather than as 

advance permission to violate the 

otherwise applicable SIP emission 

limitations, the EPA agrees that the 

‘‘prima facie defense’’ mechanism in Ill. 

Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262, and Ill. 

Admin. Code tit. 35 § 201.265 is not an 

acceptable affirmative defense provision 

under the CAA as interpreted in the 

EPA’s SSM Policy. Although the EPA 

believes that narrowly drawn 

affirmative defenses are permitted for 

malfunction events (see section VII.B of 

this notice), the EPA’s interpretation of 

the CAA is that such affirmative 

defenses can only shield the source 

from monetary penalties and cannot be 

a bar to injunctive relief. An affirmative 

defense provision that purports to bar 

any enforcement action for injunctive 

relief for violations of emission 

limitations is inconsistent with the 

requirements of CAA sections 113 and 

304. In addition, Illinois’s SIP 

provisions allow sources to obtain a 

prima facie defense for violations that 

occurred during startup periods, and, as 

discussed in section VII.C of this notice, 

the EPA does not believe affirmative 

defenses for violations of the otherwise 

applicable SIP emission limitations that 

occur during startup or shutdown 

periods is permissible under the CAA. 

Significantly, these Illinois SIP 

provisions are also deficient because, 

although not defined in the Illinois SIP, 

a prima facie defense typically would 

shift the burden of proof to the opposing 

party, in this case the party bringing the 

enforcement action against the source. 

The EPA’s longstanding interpretation 

of the CAA is that an affirmative defense 

provision must be narrowly drawn and 

must require the source to establish that 

it has met the conditions to justify relief 

from monetary penalties for excess 

emissions in a given event. Thus, an 

acceptable affirmative defense under 

EPA’s interpretation of the CAA places 

the burden on the source to demonstrate 

that it has met all the appropriate 

criteria before it is entitled to the 

defense. 

Lastly, the criteria that the Illinois SIP 

provisions require be met before 

advance permission and the prima facie 

defense may be granted are not 

consistent with the criteria that the EPA 

recommends in the SSM Policy. The 

EPA acknowledges that the SSM Policy 

is only guidance concerning what types 

of SIP provisions could be consistent 

with the requirements of the CAA. 

Nonetheless, through this rulemaking, 

the EPA is proposing to determine that 

Ill. Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262, and Ill. 

Admin. Code tit. 35 § 201.265 do not 

include criteria that are sufficiently 

robust to qualify as an acceptable 

affirmative defense provision. The EPA 

believes that the inclusion of the 

complete bar to liability, including 

injunctive relief, the availability of the 

defense for violations during startup 

and shutdown, the burden-shifting 

effect, and the insufficiently robust 

qualifying criteria in Ill. Admin. Code 

tit. 35 § 201.261, Ill. Admin. Code tit. 35 

§ 201.262, and Ill. Admin. Code tit. 35 

§ 201.265, are substantial inadequacies 

and render these specific SIP provisions 

impermissible. 

c. The EPA’s Proposal 

The EPA proposes 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. The EPA believes that these 

provisions allow for exemptions from 

the otherwise applicable emission 

limitations, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. In 

addition, Ill. Admin. Code tit. 35 

§ 201.261, Ill. Admin. Code tit. 35 

§ 201.262, and Ill. Admin. Code tit. 35 

§ 201.265 potentially allow for such an 

exemption through a state official’s 

unilateral exercise of discretionary 

authority, and such provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions in sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

For these reasons, the EPA is proposing 

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 

proposing to issue a SIP call with 

respect to these provisions. 

The EPA is proposing to grant the 

Petition with respect to these provisions 

even though the state has stated that the 

effect of these provisions only provides 

sources with a prima facie defense in an 

enforcement proceeding. Illinois’s SIP 

provisions do not constitute an 

affirmative defense provision consistent 

with the EPA’s recommendations in the 

EPA’s SSM Policy interpreting the CAA, 

for a number of reasons: it is not clear 

that the defense applies only to 

monetary penalties, which is 

inconsistent with the requirements of 

CAA sections 113 and 304; the defense 

applies to violations that occurred 

during startup periods, which is 

inconsistent with CAA sections 113 and 

304; the provisions shift the burden of 

proof to the enforcing party; and finally, 

the provisions do not include sufficient 

criteria to assure that sources seeking to 

raise the affirmative defense have in fact 

been properly designed, maintained, 

and operated, and to assure that sources 

have taken all appropriate steps to 

minimize excess emissions. 

Accordingly, even if Ill. Admin. Code 

tit. 35 § 201.261, Ill. Admin. Code tit. 35 

§ 201.262, and Ill. Admin. Code tit. 35 

§ 201.265 are interpreted to provide a 

defense to enforcement rather than an 

exemption, the EPA is proposing to find 

that the provisions are substantially 

inadequate to meet CAA requirements 

and thus proposing to issue a SIP call 

with respect to these provisions. 

2. Indiana 

a. Petitioner’s Analysis 

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)).149 150 The Petitioner 


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The EPA may elect to evaluate those provisions in 

a later action. 

150Petition at 36–37. 

objected to the provision because it 

provides an exemption from the 

otherwise applicable SIP emission 

limitations, and such exemptions are 

impermissible under the CAA because 

the statute and the EPA’s interpretation 

of the CAA in the SSM Policy require 

that all such excess emissions be treated 

as violations. 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 

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. Thus, in 

addition to creating an impermissible 

exemption for the excess emissions, the 

Petitioner argued that the SIP’s 

provision is also inconsistent with the 

CAA as interpreted in the EPA’s SSM 

Policy because it allows the state official 

to make a unilateral decision that the 

excess emissions were not a violation 

and thus bar enforcement for the excess 

emissions by the EPA and citizens. 

Alternatively, the Petitioner noted, if 

the demonstration was required to have 

been made in an enforcement context, 

the provision could be interpreted as 

providing an affirmative defense. The 

Petitioner argued that even if 

interpreted in this way, the provision is 

not permissible because it ‘‘appears to 

confuse an enforcement discretion 

approach with the affirmative defense 

approach.’’ Furthermore, the Petitioner 

argued that 326 Ind. Admin. Code 1–6– 

4(a) is not an acceptable affirmative 

defense provision because it ‘‘could be 

interpreted to preclude EPA and citizen 

enforcement and shield sources from 

injunctive relief.’’ 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for discretionary exemptions from 

otherwise applicable SIP emission 

limitations. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions such as 326 

Ind. Admin. Code 1–6–4(a) that can be 

interpreted to authorize a state official 

to determine unilaterally that the excess 

emissions during malfunctions are not 

violations of the applicable emission 

limitations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. The EPA believes that the 

inclusion of a provision that allows 

discretionary exemptions in the SIP is 

thus a substantial inadequacy and 

renders 326 Ind. Admin. Code 1–6–4(a) 

impermissible. 

The EPA believes that 326 Ind. 

Admin. Code 1–6–4(a) is also 

impermissible because the provision 

can be interpreted to make a state 

official the unilateral arbiter of whether 

the excess emissions in a given 

malfunction event constitute a violation. 

The 326 Ind. Admin. Code 1–6–4(a) 

provides that if a source demonstrates 

that four criteria are met, the excess 

emissions ‘‘shall not be considered a 

violation.’’ Because the provision does 

not establish who is to evaluate whether 

the source has made an adequate 

demonstration, the provision could be 

read to authorize a state official to judge 

that violations have not occurred even 

though the emissions exceeded the 

applicable SIP emission limitations. 

These provisions therefore appear to 

vest the state official with the unilateral 

power to grant exemptions from 

otherwise applicable SIP emission 

limitations, without any additional 

public process at the state or federal 

level. By deciding that an exceedance of 

the emission limitation was not a 

‘‘violation,’’ exercise of this discretion 

could preclude enforcement by the EPA 

or through a citizen suit. Most 

importantly, however, the provision 

could be read to authorize the state 

official to create an exemption from the 

otherwise applicable SIP emission 

limitation, and such an exemption is 

impermissible in the first instance. Such 

a director’s discretion provision 

undermines the emission limitations 

and the emissions reductions they are 

intended to achieve and renders them 

less enforceable by the EPA or through 

a citizen suit. The EPA believes that the 

inclusion of a director’s discretion 

provision in 326 Ind. Admin. Code 1– 

6–4(a) is thus a substantial inadequacy 

and renders these specific SIP 

provisions impermissible for this 

reason. 

The EPA believes that even if 326 Ind. 

Admin. Code 1–6–4(a) is interpreted to 

allow the source to make the required 

demonstration only in the context of an 

enforcement proceeding, the conditions 

set forth in the provision do not render 

it an acceptable affirmative defense 

provision. Although the EPA believes 

that narrowly drawn affirmative 

defenses are permitted under the CAA 

for malfunction events (see section VII.B 

of this notice), the EPA’s interpretation 

of the CAA is that such affirmative 

defenses can only shield the source 

from monetary penalties and cannot be 

a bar to injunctive relief. An affirmative 

defense provision that purports to bar 

any enforcement action for injunctive 

relief for violations of emission 

limitations is inconsistent with the 

requirements of CAA sections 113 and 

304. 

Furthermore, Indiana’s SIP provision 

is deficient because even if it were 

interpreted to create an affirmative 

defense rather than an exemption from 

the applicable emission limitations, it 

does so with conditions that are not 

consistent with the criteria that the EPA 

recommends in the SSM Policy. The 

EPA acknowledges that the SSM Policy 

is only guidance concerning what types 

of SIP provisions could be consistent 

with the requirements of the CAA. 

Nonetheless, through this rulemaking, 

the EPA is proposing to determine that 

326 Ind. Admin. Code 1–6–4(a) does not 

include criteria that are sufficiently 

robust to qualify as an acceptable 

affirmative defense provision under the 

CAA. The conditions in the provision 

are helpful but are not consistent with 

all of the criteria recommended in the 

EPA’s SSM Policy. For example, this 

provision does not contain criteria 

requiring the source to establish that the 

malfunction event was not foreseeable 

and not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance. Indeed, the 

explicit limitation that the 

‘‘malfunctions have not exceeded five 

percent (5%), as a guideline, of the 

normal operational time of the facility’’ 

suggests that a source could be granted 

exemptions for excess emissions even 

though it was habitually violating the 

applicable emission limitations over 

some extended period of time. 

The EPA believes that the inclusion of 

the complete bar to liability, including 

injunctive relief, and the insufficiently 

robust qualifying criteria render 326 

Ind. Admin. Code 1–6–4(a) substantially 

inadequate to meet CAA requirements. 

Significantly, the EPA notes that the 

correct meaning of 326 Ind. Admin. 


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151Petition at 44–46. 

Code 1–6–4(a) has been addressed in the 

past in conjunction with an interpretive 

letter from the state in 1984, which 

characterized the provision as an 

enforcement discretion provision 

applicable to state personnel rather than 

as a provision allowing exemptions 

from the emission limitations. The EPA 

appreciates Indiana’s clarification of its 

reading of the provision in the 1984 

letter, but at this juncture, in the course 

of reevaluating this provision in light of 

the issues raised in the Petition, the EPA 

believes that 326 Ind. Admin. Code 1– 

6–4(a) contains regulatory language that 

requires formal revision to eliminate 

significant ambiguities. For example, 

the provision states that: ‘‘[e]missions 

temporarily exceeding the standards 

which are due to malfunctions * * * 

shall not be considered a violation of 

the rules provided the source 

demonstrates’’ four criteria. Indiana has 

acknowledged that it reads these 

provisions not to bar enforcement by the 

EPA or citizens in the event that the 

state does not pursue enforcement, but 

the EPA believes that the provision is 

sufficiently ambiguous on this point 

that a revision is necessary to ensure 

that outcome in the event of an 

enforcement action. 

As discussed in section VI of this 

notice, the EPA believes that in some 

instances it is appropriate to clarify 

provisions of a SIP submission through 

the use of interpretive letters. However, 

in some cases, there may be areas of 

regulatory ambiguity in a SIP provision 

that are significant and for which 

resolution is both appropriate and 

necessary. Because the text of 326 Ind. 

Admin. Code 1–6–4(a) provision is not 

clear on its face that it is limited to the 

exercise of enforcement discretion by 

state personnel but rather could be 

interpreted as a discretionary exemption 

from the otherwise applicable SIP 

emission limitations or as an inadequate 

affirmative defense provision, the EPA 

believes this SIP provision is 

substantially inadequate to meet CAA 

requirements. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 326 Ind. Admin. 

Code 1–6–4(a). The EPA believes that 

this provision appears on its face to 

allow for discretionary exemptions from 

otherwise applicable SIP emission 

limitations, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs in sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

This provision allows for exemptions 

through a state official’s unilateral 

exercise of discretionary authority that 

includes no additional public process at 

the state or federal level, and such 

provisions are inconsistent with the 

fundamental requirements of the CAA 

with respect to SIPs and SIP revisions. 

Moreover, the discretion created by this 

provision allows case-by-case 

exemptions from emission limitations 

when such exemptions are not 

permissible in the first instance. 

Even if the EPA were to interpret 326 

Ind. Admin. Code 1–6–4(a) to be an 

affirmative defense applicable in an 

enforcement context, the provision is 

not consistent with the EPA’s 

recommendations in the EPA’s SSM 

Policy interpreting the CAA. By 

purporting to create a bar to 

enforcement that applies not just to 

monetary penalties but also to 

injunctive relief, and by including 

criteria inconsistent with those 

recommended by the EPA for 

affirmative defense provisions, this 

provision is inconsistent with the 

requirements of CAA sections 113 and 

304. For these reasons, the EPA is 

proposing to find that 326 Ind. Admin. 

Code 1–6–4(a) is substantially 

inadequate to meet CAA requirements 

and thus proposing to issue a SIP call 

with respect to this provision. 

3. Michigan 

a. Petitioner’s Analysis 

The Petitioner objected to a generally 

applicable provision in Michigan’s SIP 

that provides for an affirmative defense 

to monetary penalties for violations of 

otherwise applicable SIP emission 

limitations during periods of startup 

and shutdown.151 The Petitioner argued 

that affirmative defenses for excess 

emissions are inconsistent with the 

CAA and requested that the provision 

be removed from Michigan’s SIP. 

Alternatively, if such a provision were 

to remain in the SIP, the Petitioner 

asked that the SIP be amended to 

address two deficiencies. 

First, the Petitioner objected to one of 

the criteria in the affirmative defense 

provision, Mich. Admin. Code r. 

336.1916, which makes the defense 

available to a single source or small 

group of sources as long as such source 

did not ‘‘cause[] an exceedance of the 

national ambient air quality standards 

or any applicable prevention of 

significant deterioration increment.’’ 

The Petitioner argued that this criterion 

of Michigan’s affirmative defense 

provision is contrary to the EPA’s SSM 

Policy because ‘‘[s]ources with the 

potential to cause an exceedance should 

be more strictly controlled at all times 

and should not be able to mire 

enforcement proceedings in the difficult 

empirical questions of whether or not 

the NAAQS or PSD increments were 

exceeded as a matter of fact’’ (emphasis 

in original). 

Second, the Petitioner objected to the 

availability of Michigan’s affirmative 

defense provision, Mich. Admin. Code 

r. 336.1916, for violations of ‘‘an 

applicable emission limitation,’’ which 

Petitioner pointed out would include 

‘‘limits derived from federally 

promulgated technology based 

standards, such as NSPSs and 

NESHAPs.’’ The Petitioner argued that 

according to the EPA’s SSM Policy, 

sources should not be able to seek an 

affirmative defense for violations of 

these federal technology-based 

standards. 

b. The EPA’s Evaluation 

As discussed in more detail in section 

IV.B of this notice, the EPA does not 

agree with the Petitioner that affirmative 

defenses should never be permissible in 

SIPs. The EPA believes that narrowly 

drawn affirmative defenses can be 

permitted under the CAA for 

malfunction events, because where 

excess emissions are entirely beyond the 

control of the owner or operator of the 

source, it can be appropriate to provide 

limited relief to claims for monetary 

penalties (see section VII.B of this 

notice). However, as discussed in 

section IV.B of this notice, this basis for 

permitting affirmative defenses for 

malfunctions does not translate to 

planned events such as startup and 

shutdown. By definition, the owner or 

operator of a source can foresee and 

plan for startup and shutdown events, 

and therefore the EPA believes that 

states should be able to establish, and 

sources should be able to comply with, 

the applicable emission limitations or 

other controls measures during these 

periods of time. A source can be 

designed, operated, and maintained to 

control and to minimize emissions 

during such normal expected events. If 

sources in fact cannot meet the 

otherwise applicable emission 

limitations during planned events such 

as startup and shutdown, then a state 

may elect to develop specific alternative 

requirements that apply during such 

periods, so long as they meet other 

applicable CAA requirements. The EPA 

believes that the inclusion of an 

affirmative defense that applies only to 

violations that occurred during periods 

of startup and shutdown in Mich. 

Admin. Code r. 336.1916 is thus a 

substantial inadequacy and renders this 

specific SIP provision impermissible. 


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152Petition at 46–47. 153Petition at 60–61. 

The EPA does not agree with the 

Petitioner that affirmative defense 

provisions are, per se, impermissible for 

a ‘‘single source or small group of 

sources.’’ The EPA believes that a SIP 

provision may meet the overarching 

statutory requirements through a 

demonstration by the source that the 

excess emissions during the SSM event 

did not in fact cause a violation of the 

NAAQS. As discussed in section VII B 

of this notice, the EPA considers this 

another means by which to assure that 

affirmative defense provisions are 

narrowly drawn to justify relief from 

monetary penalties for excess emissions 

during malfunction events. Through this 

alternative approach, sources also have 

an incentive to comply with applicable 

emission limitations and thereby to 

support the larger objective of attaining 

and maintaining the NAAQS. 

The EPA does agree that an 

approvable affirmative defense 

provision, consistent with CAA 

requirements, cannot apply to any 

federal emission limitations approved 

into a SIP. Thus, if the state has elected 

to incorporate NSPS or NESHAP into its 

SIP for any purpose, such as to obtain 

credit for the resulting emissions 

reductions as part of an attainment plan, 

the SIP cannot have a provision that 

would extend any affirmative defense to 

sources beyond what is otherwise 

provided in the underlying federal 

regulation. To the extent that any 

affirmative defense is warranted during 

malfunctions for these technology-based 

standards, the federal standards 

contained in the EPA’s regulations 

already specify the appropriate 

affirmative defense. No additional or 

different affirmative defense provision 

applicable through a SIP provision is 

warranted or appropriate. On its face, 

Mich. Admin. Code r. 336.1916 does not 

explicitly limit its scope to exclude 

federal emission limitations approved 

into the SIP. Thus, this would be an 

additional way in which the provision 

is substantially inadequate to meet CAA 

requirements. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Mich. Admin. 

Code r. 336.1916, which provides for an 

affirmative defense to violations of 

applicable emission limitations during 

startup and shutdown events. The 

availability of an affirmative defense for 

excess emissions that occur during 

planned events is contrary to the EPA’s 

interpretation of the CAA to allow such 

affirmative defenses only for events 

beyond the control of the source, i.e., 

during malfunctions. For this reason, 

the EPA is proposing to find that Mich. 

Admin. Code r. 336.1916 is 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

4. Minnesota 

a. Petitioner’s Analysis 

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 startup, shutdown, or 

malfunction (Minn. R. 7011.1415).152

The provision states that: ‘‘The 

combustion of process upset gas in a 

flare, or the combustion in a flare of 

process gas or fuel gas which is released 

to the flare as a result of relief valve 

leakage is exempt from the standards of 

performance set forth in this 

regulation.’’ The Petitioner noted that 

‘‘process upset gas’’ is defined in the 

regulation as ‘‘any gas generated by a 

petroleum refinery process unit as a 

result of start-up, shutdown, upset, or 

malfunction’’ (Minn. R. 7011.1400(12)). 

The Petitioner argued that such an 

automatic exemption for emissions 

during startup, shutdown, or 

malfunction in a SIP provision is a 

violation of the fundamental 

requirements of the CAA and the EPA’s 

SSM Policy that all excess emissions be 

considered violations, and that such an 

exemption interferes with enforcement 

by the EPA and citizens. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for automatic exemptions from 

otherwise applicable SIP emission 

limitations and requirements. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations of such 

limitations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions that create 

exemptions such that the excess 

emissions during startup, shutdown, or 

malfunction are not violations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. 

The automatic exemption provision 

identified by the Petitioner explicitly 

states that ‘‘process upset gas,’’ which is 

defined as gas generated by the affected 

sources as a result of start-up, 

shutdown, upset, or malfunction, ‘‘is 

exempt from the standards’’ (Minn. R. 

7011.1415). Any exceedances of the 

standards during those periods would 

therefore not be considered a violation 

under this provision. With respect to the 

Petitioner’s concern that these 

exemptions could interfere with 

enforcement by the EPA or citizens, the 

EPA agrees that this is one of the critical 

reasons why such provisions are 

impermissible under the CAA. By 

having SIP provisions that define what 

would otherwise be violations of the 

applicable emission limitations as nonviolations, the state has effectively 

negated the ability of the EPA or the 

public to enforce against those 

violations. The EPA believes that the 

inclusion of such automatic exemptions 

from SIP requirements in Minn. R. 

7011.1415 is thus a substantial 

inadequacy and renders this specific SIP 

provision impermissible. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Minn. R. 

7011.1415. The EPA believes that this 

provision allows for automatic 

exemptions from the otherwise 

applicable SIP emission limitations and 

requirements, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, by creating 

these impermissible exemptions, the 

state has defined violations in a way 

that would interfere with effective 

enforcement by the EPA and citizens for 

excess emissions during these events as 

provided in CAA sections 113 and 304. 

For these reasons, the EPA is proposing 

to find that Minn. R. 7011.1415 is 

substantially inadequate to meet CAA 

requirements and thus is proposing to 

issue a SIP call with respect to this 

provision. 

5. Ohio 

a. Petitioner’s Analysis 

The Petitioner first 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)).153 The provision provides 

the state official with the authority to 

permit continued operation of a source 

during scheduled maintenance ‘‘where a 

complete source shutdown may result 

in damage to the air pollution sources 

or is otherwise impossible or 


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154The EPA notes that Petitioner did not 

categorize these provisions as discretionary 

exemptions, but both Ohio Admin. Code 3745–17– 

07(A)(3)(c) and Ohio Admin. Code 3745–17– 

07(B)(11)(f) provide for exemptions during 

malfunctions if sources have complied with Ohio 

Admin. Code 3745–15–06(C), which allows the 

director to ‘‘evaluate’’ malfunction reports required 

by the rule and to ‘‘take appropriate action upon a 

determination.’’ The EPA therefore believes that the 

mechanism by which exemptions are granted under 

Ohio Admin. Code 3745–17–07(A)(3)(c) and Ohio 

Admin. Code 3745–17–07(B)(11)(f) is by exercise of 

the state director’s discretion. 

impractical.’’ Upon application, the 

state official ‘‘shall authorize the 

shutdown of the air pollution control 

equipment if, in his judgment, the 

situation justifies continued operation 

of the sources.’’ 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)).154

The Petitioner argued that these 

provisions could provide exemptions 

from the otherwise applicable SIP 

emission limitations, and such 

exemptions are impermissible under the 

CAA because the statute and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all such excess 

emissions be treated as violations. 

Moreover, the Petitioner objected to 

these discretionary exemptions because 

the state official’s grant of permission to 

continue to operate during the period of 

maintenance, or to exempt sources from 

otherwise applicable SIP emission 

limitations during malfunctions, could 

be interpreted to excuse excess 

emissions during such time periods 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 events as violations. Thus, 

in addition to creating an impermissible 

exemption for the excess emissions, the 

Petitioner argued, the provisions are 

also inconsistent with the CAA as 

interpreted in the EPA’s SSM Policy 

because they allow the state official to 

make a unilateral decision that the 

excess emissions were not a violation 

and thus bar enforcement for the excess 

emissions by the EPA and citizens. 

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)). The Petitioner 

objected because this provision provides 

an exemption from the otherwise 

applicable SIP requirements, and such 

exemptions are inconsistent with the 

requirements of the CAA as interpreted 

in the EPA’s SSM Policy. The Petitioner 

argued that the CAA and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all excess emissions 

be treated as violations. The Petitioner 

also objected to this provision because, 

by providing an outright exemption 

from otherwise applicable requirements, 

the state has defined these excess 

emissions as not violations, thereby 

precluding enforcement by the EPA or 

citizens for the excess emissions that 

would otherwise be violations. 

Finally, the Petitioner objected to 

provisions that contain exemptions for 

Hospital/Medical/Infectious Waste 

Incinerator (HMIWI) sources during 

startup, shutdown, and malfunction 

(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), Ohio 

Admin. Code 3745–75–04(L)). The 

Petitioner requested that these 

exemptions be removed entirely from 

Ohio’s SIP. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations 

through the exercise of a state official’s 

discretion. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions that create 

exemptions such that excess emissions 

during startup, shutdown, malfunctions, 

or maintenance are not violations of the 

applicable emission limitations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. The EPA 

believes that the inclusion of such 

exemptions from the emission 

limitations 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), and Ohio Admin. 

Code 3745–15–06(C) is thus a 

substantial inadequacy and renders 

these specific SIP provisions 

impermissible. 

The EPA believes that 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 3745–15–06(C) are also 

impermissible as unbounded director’s 

discretion provisions that make a state 

official the unilateral arbiter of whether 

the excess emissions in a given event 

constitute a violation. In the case of 

Ohio Admin. Code 3745–15–06(A)(3), 

the provision authorizes the state 

official to allow continued operation at 

sources ‘‘during scheduled maintenance 

of air pollution control equipment.’’ The 

state official’s grant of permission to 

continue to operate during the period of 

maintenance could be interpreted to 

excuse excess emissions during that 

period and could thus be read to 

preclude enforcement by the EPA or 

through a citizen suit in the event that 

the state official elects not to treat the 

excess emissions as a violation. In 

addition, the provision vests the state 

official with the unilateral power to 

grant an exemption from the otherwise 

applicable SIP emission limitations, 

without any additional public process at 

the state or federal level. Although the 

provision does require sources to submit 

a report indicating the expected length 

of the event and estimated quantities of 

emissions, among other things, 

ultimately the state official makes his 

determination ‘‘if, in his judgment, the 

situation justifies continued operation 

of the sources.’’ The state official’s 

discretion is therefore not sufficiently 

bounded and extends to granting a 

complete exemption from applicable 

emission limitations that would be 

impermissible in the first instance. 

The EPA believes that Ohio Admin. 

Code 3745–17–07(A)(3)(c), which 

exempts sources from visible particulate 

matter limitations during malfunctions, 

and Ohio Admin. Code 3745–17– 

07(B)(11)(f), which exempts sources 

from fugitive dust limitations during 

malfunctions, also impermissibly 

provide exemptions through exercise of 

a state official’s discretion because the 

provisions authorize exemptions if the 

source has complied with Ohio Admin. 

Code 3745–15–06(C). The Ohio Admin. 

Code 3745–15–06(C) provides the state 

official with the discretion to ‘‘evaluate’’ 

reports of malfunctions submitted by 

sources and to ‘‘take appropriate action 

upon a determination’’ that sources 

have not adequately met the 

requirements of the provision. Although 

the Petitioner did not request that the 

EPA evaluate Ohio Admin. Code 3745– 

15–06(C), it is the regulatory mechanism 

by which exemptions are granted in the 

two provisions to which the Petitioner 

did object. Similar to Ohio Admin. Code 

3745–15–06(A)(3), which is the 

director’s discretion provision discussed 

earlier in this section of the notice, the 

EPA finds that Ohio Admin. Code 3745– 


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17–07(A)(3)(c) and Ohio Admin. Code 

3745–17–07(B)(11)(f) could be 

interpreted to excuse excess emissions 

during malfunction events and could 

thus be read to preclude enforcement by 

the EPA or through a citizen suit in the 

event that the state official elects not to 

treat the excess emissions as a violation. 

In addition, the provision vests the state 

official with the unilateral power to 

grant an exemption from otherwise 

applicable SIP emission limitations, 

without any additional public process at 

the state or federal level. Although the 

provision does require the state official 

to consider the reports filed by sources 

before making a determination, the 

provision remains insufficiently 

bounded. 

Most importantly, however, these 

provisions all purport to authorize the 

state official to create exemptions from 

the emission limitations, and such 

exemptions are impermissible in the 

first instance. Such director’s discretion 

provisions undermine the emission 

limitations and the emissions 

reductions they are intended to achieve 

and render them less enforceable by the 

EPA or through a citizen suit. The EPA 

believes that the inclusion of an 

unbounded director’s discretion 

provision 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), and Ohio Admin. 

Code 3745–15–06(C) is thus a 

substantial inadequacy and renders 

these specific SIP provisions 

impermissible for this reason, in 

addition to the creation of 

impermissible exemptions. 

With regard to the Petitioner’s 

objection to the exemption for portland 

cement kilns from otherwise applicable 

requirements at Ohio Admin. Code 

3745–14–11(D), the EPA agrees that the 

CAA does not allow for automatic 

exemptions from otherwise applicable 

SIP emission limitations and 

requirements. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations of such limitations, whether 

or not the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, malfunction, or maintenance 

are not violations are inconsistent with 

the fundamental requirements of the 

CAA with respect to emission 

limitations in SIPs. 

The automatic exemption provision in 

Ohio Admin. Code 3745–14–11(D) 

explicitly states that the regulation’s 

requirement that the use of control 

measures such as low-NOx burners 

during the ozone season and 

monitoring, reporting, and 

recordkeeping of ozone season NOx 

emissions ‘‘shall not apply’’ during 

periods of startup, shutdown, 

malfunction, and maintenance. The 

exemptions therefore provide that the 

excess emissions resulting from failure 

to run required control measures will 

not be violations, contrary to the 

requirements of the CAA. In addition, 

exemption from monitoring, 

recordkeeping, and reporting 

requirements during these events affects 

the enforceability of the emission 

limitation in the SIP provision. 

Moreover, failure to account accurately 

for excess emissions at sources during 

SSM events has a broader impact on 

NAAQS implementation and SIP 

planning, because such accounting 

directly informs the development of 

emissions inventories and emissions 

modeling. With respect to the 

Petitioner’s concern that these 

exemptions preclude enforcement by 

the EPA or citizens, the EPA agrees that 

this is one of the critical reasons why 

such provisions are impermissible 

under the CAA. By having SIP 

provisions that define what would 

otherwise be violations of the applicable 

emission limitations as non-violations, 

the state has effectively negated the 

ability of the EPA or the public to 

enforce against those violations. The 

EPA believes that the inclusion of such 

automatic exemptions from SIP 

requirements in Ohio Admin. Code 

3745–14–11(D) is thus substantially 

inadequate to meet CAA requirements. 

Finally, the EPA disagrees that the 

provisions providing exemptions for 

HMIWI must be removed from the SIP. 

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) are not 

approved into Ohio’s SIP, but rather 

those rules were approved as part of the 

separate state plan to meet the 

applicable emissions guidelines under 

CAA § 111(d) and 40 CFR part 60. 

Because those rules are not in the Ohio 

SIP and are not related to any provisions 

in the SIP, they do not represent a 

substantial inadequacy in the SIP. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Ohio Admin. 

Code 3745–15–06(A)(3), Ohio Admin. 

Code 3745–17–07(A)(3)(c), and Ohio 

Admin. Code 3745–17–07(B)(11)(f). The 

EPA believes that these provisions allow 

for exemptions from the otherwise 

applicable SIP emission limitations, and 

that such exemptions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs. In addition, 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 

by extension, Ohio Admin. Code 3745– 

15–06(C), allow for such exemptions 

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, and such provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions. Moreover, the 

discretion created by these provisions 

allows case-by-case exemptions from 

emission limitations when such 

exemptions are not permissible in the 

first instance. As described in section 

VII.A of this notice, such provisions are 

inconsistent with fundamental CAA 

requirements for SIP revisions. For these 

reasons, the EPA is proposing to find 

that 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 

3745–15–06(C) are substantially 

inadequate to meet CAA requirements 

and thus is proposing to issue a SIP call 

with respect to these provisions. 

The EPA also proposes to grant the 

Petition with respect to Ohio Admin. 

Code 3745–14–11(D). The EPA believes 

that this provision allows for automatic 

exemptions from the otherwise 

applicable SIP emission limitations and 

requirements, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by CAA sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). In addition, by 

creating these impermissible 

exemptions, the state has defined 

violations in a way that would interfere 

with effective enforcement by the EPA 

and citizens for excess emissions during 

these events as provided in CAA 

sections 113 and 304. For these reasons, 

the EPA is proposing to find that this 

provision is substantially inadequate to 

meet CAA requirements and thus is 

proposing to issue a SIP call with 

respect to this provision. 

The EPA proposes 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 


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155Petition at 24. The Petitioner cites to 014–01– 

1 Ark. Code R. §§ 19.1004(H) and 19.602. The EPA 

interprets these citations as references to Reg. 

19.1004(H) and Reg. 19.602 of the Arkansas 

Pollution Control & Ecology Commission 

(APC&EC), Regulation No. 19—Regulations of the 

Arkansas Plan of Implementation for Air Pollution 

Control, as approved by the EPA on Apr. 12, 2007 

(72 FR 18394) (hereinafter referred to as Reg. 

19.1004(H) and Reg. 19.602). 

156Petition at 42–43. 

157The EPA interprets the Petitioner’s reference 

to La. Adm. Code tit. 33, § III:2153(B)(1)(i) as a 

Continued 

3745–75–04(K), and Ohio Admin. Code 

3745–75–04(L). These provisions are not 

part of the Ohio SIP and thus cannot 

represent a substantial inadequacy in 

the SIP. 

G. Affected States in EPA Region VI 

1. Arkansas 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the Arkansas SIP.155 First, 

the Petitioner objected to a provision 

that provides an automatic exemption 

for excess emissions of volatile organic 

compounds (VOC) for sources located in 

Pulaski County that occur due to 

malfunctions (Reg. 19.1004(H)). The 

provision states that excess emissions 

‘‘which are temporary and result solely 

from a sudden and unavoidable 

breakdown, malfunction or upset of 

process or emission control equipment, 

or sudden and unavoidable upset or 

operation will not be considered a 

violation * * *.’’ The Petitioner argued 

that this language is impermissible 

because the CAA and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all excess emissions 

be treated as violations. 

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. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations. In 

accordance with CAA sections 

110(a)(2)(A) and 302(k), SIPs must 

contain ‘‘emission limitations’’ and 

those limitations must be continuous. 

Thus, any excess emissions above the 

level of the applicable SIP emission 

limitation must be considered a 

violation of such limitation, regardless 

of whether the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions from applicable 

emission limitations during 

malfunctions or emergency conditions, 

however defined, are inconsistent with 

the fundamental requirements of the 

CAA. 

The first provision identified by the 

Petitioner explicitly states that excess 

emissions of VOC ‘‘will not be 

considered a violation’’ of the 

applicable emission limitation if they 

occur due to an ‘‘unavoidable 

breakdown’’ or ‘‘malfunction.’’ This 

exemption in Reg. 19.1004(H) is 

impermissible even though the state has 

limited the exemption to unavoidable 

breakdowns and malfunctions. The core 

problem remains that the provision 

provides an impermissible exemption 

from the otherwise applicable VOC 

emission limitations. In addition, by 

having a SIP provision that defines what 

would otherwise be violations of the 

applicable emission limitations as nonviolations, the state has effectively 

negated the ability of the EPA or the 

public to enforce against those 

violations. The EPA believes that the 

inclusion of such an automatic 

exemption in Reg. 19.1004(H) is thus a 

substantial inadequacy and renders this 

SIP provision impermissible under the 

CAA. 

The second provision identified by 

the Petitioner defines ‘‘emergency’’ 

conditions that may cause a source to 

exceed a technology-based emission 

limitation under a permit and provides 

a ‘‘complete affirmative defense’’ to an 

action brought for non-compliance with 

such limitations if certain criteria are 

met. The EPA believes that Reg. 19.602 

is substantially inadequate for three 

reasons. First, the provision does not 

explicitly limit the affirmative defense 

to civil penalties. Although the EPA 

believes that narrowly drawn 

affirmative defenses are permitted under 

the CAA for malfunction events (see 

sections IV.B and VII.B of this notice), 

the EPA’s interpretation of the CAA is 

that such affirmative defenses can only 

shield the source from monetary 

penalties and cannot be a bar to 

injunctive relief. An affirmative defense 

provision that purports to bar any 

enforcement action for injunctive relief 

for violations of emission limitations is 

inconsistent with the requirements of 

CAA sections 113 and 304. Second, the 

provision does not contain elements for 

establishing the affirmative defense 

consistent with all of the recommended 

criteria in the EPA’s SSM Policy for SIP 

provisions. The EPA acknowledges that 

the SSM Policy is only guidance 

concerning what types of SIP provisions 

could be consistent with the 

requirements of the CAA. Nonetheless, 

through this rulemaking, the EPA is 

proposing to determine that Reg. 19.602 

does not include criteria that are 

sufficiently robust to qualify as an 

acceptable affirmative defense 

provision. Finally, the provision can be 

read to provide additional defenses 

beyond those already provided in 

federal technology-based standards. The 

EPA believes that approvable 

affirmative defenses in a SIP provision 

cannot operate to create different or 

additional defenses from those that are 

provided in underlying federal 

technology-based emission limitations, 

such as NSPS or NESHAP. For these 

reasons, the EPA believes that Reg. 

19.602 is substantially inadequate to 

meet the fundamental requirements of 

the CAA. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Reg. 19.1004(H) 

and Reg. 19.602. The EPA believes that 

Reg. 19.1004(H) allows for an exemption 

from otherwise applicable SIP emission 

limitations and that such exemptions 

are inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

Additionally, the EPA believes that Reg. 

19.602 is an impermissible affirmative 

defense provision because it does not 

explicitly limit the defense to monetary 

penalties, establishes criteria that are 

inconsistent with those in the EPA’s 

SSM Policy, and can be read to create 

different or additional defenses from 

those that are provided in underlying 

federal technology-based emission 

limitations. As a consequence, Reg. 

19.602 is also inconsistent with CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For these reasons, the EPA is 

proposing to find that these provisions 

are substantially inadequate to meet 

CAA requirements and proposes to 

issue a SIP call with respect to these 

provisions. 

2. Louisiana 

a. Petitioner’s Analysis 

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.156

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)).157 The 


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citation to LAC 33:III.2153(B)(1)(i), as approved by 

the EPA on June 20, 2002 (67 FR 41840) (hereinafter 

referred to as LAC 33:III.2153(B)(1)(i)). Similarly, 

the EPA interprets the Petitioner’s reference to La. 

Adm. Code tit. 33, § III:2201(C)(8) as a citation to 

LAC 33:III.2201(C)(8), as approved by the EPA on 

July 5, 2011 (76 FR 38977) (hereinafter referred to 

as LAC 33:III.2201(C)(8)). 

158The EPA interprets the Petitioner’s reference 

to La. Adm. Code tit. 33, § III:1107 as a citation to 

LAC 33:III.1107(A), as approved by the EPA on July 

5, 2011 (76 FR 38977 (hereinafter referred to as LAC 

33:III.1107(A)). Similarly, the EPA interprets the 

Petitioner’s reference to La. Adm. Code tit. 33, 

§ III:1507(A)(1) and (B)(1) as citations to LAC 

33:III.1507(A)(1) and (B)(1), as approved by the EPA 

on July 15, 1993 (58 FR 38060) (hereinafter referred 

to as LAC 33:III.1507(A)(1) and (B)(1)). Also, the 

EPA interprets the Petitioner’s reference to La. 

Adm. Code tit. 33, § III:2307(C)(1)(a) and (C)(2)(a) as 

a citation to LAC 33:III.2307(C)(1)(a) and (C)(2)(a), 

as approved by the EPA on July 5, 2011 (76 FR 

38977) (hereinafter referred to as LAC 

33:III.2307(C)(1)(a) and (C)(2)(a)). 

159Petition at 54–57. The EPA interprets the 

Petitioner’s reference to N.M. Code R. § 20.2.7.111, 

N.M. Code R. § 20.2.7.112, and N.M. Code R. 

§ 20.2.7.113, as citations to 20.2.7.111 NMAC, 

20.2.7.112 NMAC, and 20.2.7.113 NMAC, as 

approved by the EPA on Sept. 14, 2009 (74 FR 

46910) (hereinafter referred to as 20.2.7.111 NMAC, 

20.2.7.112 NMAC, and 20.2.7.113 NMAC). 

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.’’ The Petitioners argued 

that these provisions are impermissible 

because the CAA and the EPA’s 

interpretation of the CAA in the SSM 

Policy require that all excess emissions 

be treated as violations. 

Second, the Petitioner objected to 

provisions that provide discretionary 

exemptions to various emission 

limitations.158 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), 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 example, 

LAC 33:III.1107, which deals with the 

control of emissions from flares, states 

that exemptions ‘‘may be granted by the 

administrative authority during startup 

and shutdown periods if the flaring was 

not the result of failure to maintain and 

repair equipment.’’ The Petitioner 

argued that this language effectively 

allows a discretionary decision by a 

state official to exempt excess emissions 

during such events and thereby 

precludes enforcement by the EPA and 

citizens for what would otherwise be 

violations of the applicable SIP 

emission limitations, contrary to the 

requirements of the CAA. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions for excess 

emissions from otherwise applicable SIP 

emission limitations, whether automatic 

or through the exercise of a state 

official’s discretion. In accordance with 

sections 110(a)(2)(A) and 302(k), SIPs 

must contain ‘‘emission limitations’’ 

and those limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable SIP 

emission limitation must be considered 

a violation of such limitation, regardless 

of whether the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during startup, 

shutdown, maintenance, or 

malfunctions are not violations of the 

applicable SIP emission limitations are 

inconsistent with the fundamental 

requirements of the CAA. 

The first two SIP provisions identified 

by the Petitioner explicitly state that 

emission limitations for VOC and NOx 

are either ‘‘not required’’ or ‘‘exempted’’ 

during specified types of SSM events. 

The EPA believes that such automatic 

exemptions are impermissible under the 

CAA. By having SIP provisions that 

define what would otherwise be 

violations of the applicable SIP 

emission limitations as non-violations, 

the state has effectively negated the 

ability of the EPA or the public to 

enforce against those violations. 

Therefore, the EPA believes that the 

inclusion of such automatic exemptions 

in LAC 33:III.2153(B)(1)(i) and LAC 

33:III.2201(C)(8) is a substantial 

inadequacy that renders these SIP 

provisions impermissible under the 

CAA. 

The other five provisions identified 

by the Petitioner all provide the state 

with the discretion to ‘‘grant,’’ 

‘‘authorize,’’ or ‘‘extend’’ exemptions 

from the otherwise applicable SIP 

emission limitations during various 

SSM events. The EPA believes that 

these provisions are impermissible as 

unbounded director’s discretion 

provisions that make a state official the 

unilateral arbiter of whether the excess 

emissions in a given event constitute a 

violation of otherwise applicable SIP 

emission limitations. More importantly, 

the provisions purport to authorize the 

state official to create exemptions from 

applicable SIP emission limitations 

when such exemptions are 

impermissible in the first instance. As 

discussed in more detail in section 

VII.A of this notice, these types of 

director’s discretion provisions 

undermine the purpose of emission 

limitations and the reductions they are 

intended to achieve, thereby rendering 

them less enforceable by the EPA or 

through a citizen suit. The EPA believes 

that the inclusion of such a director’s 

discretion provision in 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) is therefore a 

substantial inadequacy that renders 

these specific SIP provisions 

impermissible under the CAA. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to LAC 

33:III.2153(B)(1)(i) and LAC 

33:III.2201(C)(8). The EPA believes that 

these provisions allow for exemptions 

from otherwise applicable emission 

limitations and that such exemptions 

are inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

The EPA also proposes to grant the 

Petition with respect to LAC 

33:III.1107(A), LAC 33:III.1507(A)(1) & 

(B)(1), and LAC 33:III.2307(C)(1)(a) & 

(C)(2)(a). The discretion created by these 

provisions allows for revisions of the 

applicable SIP emission limitations 

without meeting the applicable SIP 

revision requirements of the CAA, and 

it allows case-by-case exemptions from 

emission limitations when such 

exemptions are not permissible in the 

first instance. Thus, these provisions are 

also inconsistent with CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

For these reasons, the EPA is proposing 

to find that each of these provisions is 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to these specific 

provisions. 

3. New Mexico 

a. Petitioner’s Analysis 

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).159 The 

Petitioner objected to the inclusion of 

these provisions in the SIP based on its 

view that affirmative defense provisions 


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are always inconsistent with CAA 

requirements. The Petitioner also argued 

that each of these affirmative defenses is 

generally available to all sources, which 

is in contravention of the EPA’s 

recommendation in the SSM Policy that 

affirmative defenses should not be 

available to ‘‘a single source or groups 

of sources that has the potential to cause 

an exceedance of the NAAQS.’’ Finally, 

the Petitioner argued that the affirmative 

defense provision applicable to 

emergency events is impermissible 

because it was modeled after the EPA’s 

title V regulations, which are not meant 

to apply to SIP provisions. 

b. The EPA’s Evaluation 

The EPA disagrees with the 

Petitioner’s contention that no 

affirmative defense provisions are 

permissible in SIPs under the CAA. As 

explained in more detail in sections 

IV.B and VII.B of this notice, the EPA 

interprets the CAA to allow affirmative 

defense provisions for malfunctions. As 

long as these provisions are narrowly 

drawn and consistent with the CAA, as 

recommended in the EPA’s guidance for 

affirmative defense provisions in SIPs, 

the EPA believes that states may elect to 

have affirmative defense provisions for 

malfunctions. By contrast, however, 

based on evaluation of the legal and 

factual basis for affirmative defenses in 

SIPs, the EPA now believes that 

affirmative defense provisions are not 

appropriate in the case of planned 

source actions, such as startup and 

shutdown, because sources should be 

expected to comply with applicable 

emission limitations during those 

normal planned and predicted modes of 

source operation. Again, as explained in 

sections IV.B and VII.C of this notice, 

the EPA is changing its interpretation of 

the CAA with respect to affirmative 

defenses applicable during startup and 

shutdown events. As a result, 20.2.7.112 

NMAC, which provides an affirmative 

defense to excess emissions that occur 

during startup or shutdown, is 

substantially inadequate to meet the 

requirements of the CAA. 

With respect to the Petitioner’s 

second concern, the EPA agrees that the 

state’s inclusion of an affirmative 

defense for malfunctions that is 

available to all sources, including single 

sources or groups of sources with the 

potential to cause exceedances of the 

NAAQS or PSD increments, renders the 

provision inconsistent with the CAA. As 

explained more fully in section VII.B of 

this notice, the EPA believes that such 

affirmative defenses may be permissible 

if either there is no ‘‘potential’’ for 

exceedances, or alternatively, if the 

provision requires that the source make 

an affirmative showing that any excess 

emissions did not in fact cause an 

exceedance of the NAAQS or PSD 

increments. The EPA has previously 

approved such provisions as meeting 

CAA requirements on a case-by-case 

basis in specific actions on SIP 

submissions. Here, however, 20.2.7.111 

NMAC is not restricted in application to 

only those sources that do not have the 

potential to cause an exceedance, nor 

does it contain any criteria requiring an 

‘‘after the fact’’ showing that excess 

emissions from a single source or group 

of sources did not cause an exceedance. 

Therefore, the provision is substantially 

inadequate to satisfy the CAA and EPA’s 

interpretation of CAA requirements. 

Finally, 20.2.7.113 NMAC provides an 

affirmative defense for excess emissions 

that occur during emergencies, a 

concept borrowed from the EPA’s title V 

regulations. This provision defines 

‘‘emergency’’ conditions that may cause 

a source to exceed a technology-based 

emission limitation and provides a 

‘‘complete affirmative defense’’ to an 

action brought for non-compliance with 

such limitations if certain criteria are 

met. The 20.2.7.113 NMAC is 

substantially inadequate for three 

reasons. First, the provision does not 

explicitly limit the affirmative defense 

to civil penalties. Although the EPA 

believes that narrowly drawn 

affirmative defenses are permitted under 

the CAA for malfunction events (see 

sections IV.B and VII.B of this notice), 

the EPA’s interpretation of the CAA is 

that such affirmative defenses can only 

shield the source from monetary 

penalties and cannot be a bar to 

injunctive relief. An affirmative defense 

provision that purports to bar any 

enforcement action for injunctive relief 

for violations of emission limitations is 

inconsistent with the requirements of 

CAA sections 113 and 304. Second, the 

provision does not contain elements for 

establishing the affirmative defense 

consistent with all of the recommended 

criteria in the EPA’s SSM Policy for SIP 

provisions. The EPA acknowledges that 

the SSM Policy is only guidance 

concerning what types of SIP provisions 

could be consistent with the 

requirements of the CAA. Nonetheless, 

through this rulemaking, the EPA is 

proposing to determine that 20.2.7.113 

NMAC does not include criteria that are 

sufficiently robust to qualify as an 

acceptable affirmative defense 

provision. Finally, the provision can be 

read to provide additional defenses 

beyond those already provided in 

federal technology-based standards. The 

EPA believes that approvable 

affirmative defenses in a SIP provision 

cannot operate to create different or 

additional defenses from those that are 

provided in underlying federal 

technology-based emission limitations, 

such as NSPS or NESHAP. For these 

reasons, the EPA believes that 

20.2.7.113 NMAC is impermissible 

under the CAA. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 20.2.7.112 

NMAC, which includes an affirmative 

defense applicable during startup and 

shutdown events that is contrary to the 

EPA’s interpretation of the CAA. The 

EPA believes that this provision is 

inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In 

addition, this provision is inconsistent 

with the requirements of CAA sections 

113 and 304. The EPA also proposes to 

grant the Petition with respect to 

20.2.7.111 NMAC, which includes an 

affirmative defense applicable during 

malfunction events. This provision is 

inconsistent with the CAA because it 

neither limits the defense to only those 

sources that do not have the potential to 

cause exceedances of the NAAQS or 

PSD increments nor does it require 

sources to make an ‘‘after the fact’’ 

showing that no such exceedances 

actually occurred. Therefore, the EPA 

believes that this provision is similarly 

inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k), 

and with respect to CAA sections 113 

and 304. Finally, the EPA proposes to 

grant the Petition with respect to 

20.2.7.113 NMAC. The EPA believes 

that this provision is an impermissible 

affirmative defense because it does not 

explicitly limit the defense to monetary 

penalties, it establishes criteria that are 

inconsistent with those in EPA’s SSM 

Policy, and it can be read to create 

different or additional defenses from 

those that are provided in underlying 

federal technology-based emission 

limitations. Thus, this provision too is 

inconsistent with CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k), 

and with respect to CAA sections 113 

and 304. For these reasons, the EPA is 

proposing to find that these provisions 

are substantially inadequate to meet 

CAA requirements and proposes to 

issue a SIP call with respect to these 

provisions. 

4. Oklahoma 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the Oklahoma SIP that 

together allow for discretionary 


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160Petition at 61–63. The EPA interprets the 

Petitioner’s reference to Okla. Admin. Code 

§ 252:100–9–3(a) and Okla. Admin. Code § 252:100– 

9–3(b) as citations to OAC 252:100–9–3(a) and OAC 

252:100–9–3(b), as approved by the EPA on Nov. 3, 

1999 (64 FR 59629) (hereinafter referred to as OAC 

252:100–9–3(a) and (3)(b)). 

161The EPA notes that on July 16, 2010, 

Oklahoma submitted a SIP revision that would 

remove OAC 252:100–9–3(a) and OAC 252:100–9– 

3(b) and replace them with affirmative defense 

provisions. In this action, the EPA is only 

evaluating these provisions as they are currently 

found in the EPA-approved Oklahoma SIP. The 

EPA is not evaluating the July 16, 2010 SIP revision 

as part of this action. The EPA will address the July 

16, 2010 SIP revision in a later action. 

162Petition at 37–38. 

163Petition at 37–38. 

164Petition at 38. 

exemptions from emission limitations 

during startup, shutdown, maintenance, 

and malfunctions (OAC 252:100–9–3(a) 

and OAC 252:100–9–3(b)).160 These 

provisions state that excess emissions 

during each of these types of events 

constitute violations of the applicable 

SIP emission limitations ‘‘unless the 

owner or operator of the facility has 

complied with the notification 

requirements,’’ which consist of a 

demonstration to the Director of the Air 

Quality Division that at least one of 

several criteria have been met. One 

example of the criteria includes a 

demonstration that the excess emissions 

resulted from ‘‘either malfunction or 

damage to the air pollution control or 

process equipment’’ or ‘‘scheduled 

maintenance.’’ The Petitioner argued 

that these provisions empower the 

director to excuse violations entirely 

and thereby preclude enforcement by 

the EPA or citizens. Specifically, if an 

owner or operator satisfies the director 

that the regulatory criteria under section 

3(b) have been met, then the language of 

section 3(a) creates an exemption for the 

source and strongly implies that the 

excess emissions are not a violation of 

the applicable SIP emission limitations. 

Therefore, the Petitioner argued that 

these provisions are inconsistent with 

the requirements of the CAA. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

even where the exemption is only 

available at the exercise of a state 

official’s discretion. In accordance with 

sections 110(a)(2)(A) and 302(k), SIPs 

must contain ‘‘emission limitations’’ 

and those limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable SIP 

emission limitations must be considered 

a violation of such limitations, 

regardless of whether the state elects to 

exercise its enforcement discretion. SIP 

provisions that create exemptions such 

that the excess emissions during startup, 

shutdown, malfunctions, or 

maintenance are not violations of the 

applicable emission limitations are 

inconsistent with the fundamental 

requirements of the CAA. 

The provisions identified by the 

Petitioner state that excess emissions 

during SSM events constitute violations 

‘‘unless’’ the Director of the Air Quality 

Division provides an exemption. The 

EPA believes that OAC 252:100–9–3(a) 

and OAC 252:100–9–3(b) are 

impermissible, because they are 

unbounded director’s discretion 

provisions that purport to make a state 

official the unilateral arbiter of whether 

the excess emissions in a given event 

constitute a violation. The provisions 

authorize the state official to create 

exemptions from applicable SIP 

emission limitations on a case-by-case 

basis when such exemptions are 

impermissible in the first instance. 

These types of director’s discretion 

provisions undermine the purpose of 

emission limitations, and the reductions 

they are intended to achieve, thereby 

rendering them less enforceable by the 

EPA or through a citizen suit. The EPA 

believes that the inclusion of such a 

director’s discretion provision in OAC 

252:100–9–3(a) and OAC 252:100–9– 

3(b) is therefore a substantial 

inadequacy and renders these SIP 

provisions impermissible. 

The EPA further notes that the 

provision allowing exemptions for 

excess emissions that occur during 

scheduled maintenance is inconsistent 

with CAA requirements for the reason 

that maintenance is a normal mode of 

source operation, during which sources 

should be expected to meet applicable 

SIP emission limitations. Since the 1983 

SSM Guidance, the EPA has indicated 

its view that excess emissions that occur 

during maintenance should not be 

excused. Similarly, in the 1999 SSM 

Guidance, the EPA did not recommend 

any affirmative defense for excess 

emissions that occur during 

maintenance. In this action, the EPA is 

reiterating its view that the CAA does 

not permit exemptions or affirmative 

defenses for excess emissions that occur 

during such planned events. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to OAC 252:100– 

9–3(a) and OAC 252:100–9–3(b).161 The 

discretion created by these provisions 

allows for revisions of the applicable 

SIP emission limitations without 

meeting the applicable SIP revision 

requirements of the CAA, and it allows 

case-by-case exemptions from emission 

limitations when such exemptions are 

not permissible in the first instance. As 

a result, these provisions are 

inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

Therefore, the EPA is proposing to find 

that these provisions are substantially 

inadequate to meet CAA requirements 

and proposes to issue a SIP call with 

respect to these provisions. 

H. Affected States in EPA Region VII 

1. Iowa 

a. Petitioner’s Analysis 

The Petitioner first 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)).162 The Petitioner noted that 

Iowa Admin. Code r. 567–24.1(1) 

provides that excess emissions from 

these periods are not violations of the 

emissions standard ‘‘if the startup, 

shutdown or cleaning is accomplished 

expeditiously and in a manner 

consistent with good practice for 

minimizing emissions.’’ The Petitioner 

argued that such exemptions are 

inconsistent with the requirements of 

the CAA and the EPA’s SSM Policy. The 

Petitioner argued that the CAA and the 

EPA’s interpretation of the CAA in the 

SSM Policy require that all such excess 

emissions be treated as violations. 

Second, 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)).163 The Petitioner noted 

that this provision—which states that 

‘‘[d]etermination of any subsequent 

enforcement action will be made 

following review of [a] report’’ 

(emphasis added by Petitioner) 

submitted by the owner or operator of 

the source demonstrating certain 

conditions—could be interpreted to 

mean that ‘‘no enforcement is warranted 

at all, by anyone.’’ 164 The Petitioner 

argued that such an interpretation of 

this provision could preclude 

enforcement by the EPA or citizens, 

both for civil penalties and injunctive 

relief, and that the EPA’s interpretation 

of the CAA would forbid such a 

provision. The Petitioner thus requested 

that Iowa revise this provision to 

eliminate any confusion that a decision 

by Iowa state personnel not to enforce 

against a violation would in any way 


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165Petition at 38–39. 166Petition at 39. 

foreclose enforcement by the EPA or 

citizens. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that excess 

emissions during startup, shutdown, or 

control equipment cleaning are not 

violations are inconsistent with the 

fundamental requirements of the CAA 

with respect to emission limitations in 

SIPs. The first provision identified by 

the Petitioner explicitly states that 

excess emission during periods of 

startup, shutdown, and cleaning of 

control equipment ‘‘is not a violation,’’ 

contrary to the requirements of the 

CAA. The EPA believes that the 

inclusion of such an exemption from 

otherwise applicable SIP emission 

limitations in Iowa Admin. Code r. 567– 

24.1(1) is thus a substantial inadequacy 

and renders this specific SIP provision 

impermissible. 

The EPA notes that these exemptions 

are impermissible even though the state 

has imposed some factual limitations on 

their potential scope. In Iowa Admin. 

Code r. 567–24.1(1), the state has 

conditioned the exemption for excess 

emissions during periods of startup, 

shutdown, or cleaning of control 

equipment, requiring that such activities 

be ‘‘accomplished expeditiously and in 

a manner consistent with good practice 

for minimizing emissions.’’ Although 

this limitation on the scope of the 

exemptions is a helpful feature, the core 

problem remains that the provision 

provides impermissible exemptions 

from the otherwise applicable SIP 

emission limitations by defining the 

excess emission as ‘‘not a violation.’’ 

Such provisions are impermissible 

under the CAA because the state has 

effectively negated the ability of the 

EPA or through a citizen suit to enforce 

against those violations. 

However, the EPA disagrees with 

Petitioner that Iowa Admin. Code r. 

567–24.1(4) is impermissible under the 

CAA. The EPA believes that this 

provision is permissible because it 

defines parameters for the exercise of 

enforcement discretion by state 

personnel for violations of emission 

limitations during malfunctions. 

According to the EPA’s SSM Policy 

interpreting the CAA, as discussed in 

section IX.A of this notice, a state has 

authority to have a SIP provision that 

pertains to the exercise of enforcement 

discretion concerning actions taken by 

state personnel. The provision at issue 

clearly states that any excess emission 

during malfunction ‘‘is a violation.’’ The 

rule also delineates factors that will be 

considered by state personnel in 

determining whether to pursue 

enforcement for those regulatory 

violations that are due to excess 

emissions during malfunctions. The 

listing of these factors does not alter the 

statement that excess emissions are 

violations under the Iowa regulations. 

The provisions that describe the factors 

to be considered by state personnel only 

require that the state personnel consider 

such factors. The regulations do not 

state or imply that if a source makes an 

appropriate showing of meeting the 

factors, it is exempt from penalties or 

injunctive relief. The provision does not 

state or imply that any other entity, 

including the EPA or a member of the 

public, is precluded from taking an 

enforcement action if the state exercises 

its discretion not to enforce violations of 

the emission limitations during 

malfunctions. Iowa Admin. Code r. 567– 

24.1(4) expressly identifies excess 

emissions described in the rule as 

violations and allows for the exercise of 

enforcement discretion in addressing 

malfunctions. This is consistent with 

the CAA and the EPA’s SSM Policy and 

therefore does not render the SIP 

provision substantially inadequate. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Iowa Admin. 

Code. R. 567–24.1(1). The EPA believes 

that this provision allows for 

exemptions from the otherwise 

applicable SIP emission limitations, and 

that such exemptions are inconsistent 

with the fundamental requirements of 

the CAA with respect to emission 

limitations in SIPs as required by 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For this reason, the EPA is 

proposing to find that Iowa Admin. 

Code. R. 567–24.1(1) is substantially 

inadequate to meet CAA requirements 

and thus proposing to issue a SIP call 

with respect to this provision. 

The EPA proposes to deny the 

Petition with respect to Iowa Admin. 

Code r. 567–24.1(4). The EPA believes 

that the provision is on its face clearly 

applicable only to Iowa state 

enforcement personnel and that the 

provision 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. The EPA 

solicits comments on this issue, in 

particular from the State of Iowa, to 

assure that there is no misunderstanding 

with respect to the correct interpretation 

of Iowa Admin. Code r. 567–24.1(4). 

2. Kansas 

a. Petitioner’s Analysis 

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)).165

The Petitioner objected because all three 

of these provisions ‘‘state that excess 

emissions are not violations (or are 

permitted),’’ 166 contrary to the 

fundamental requirement of the CAA 

that all excess emissions be considered 

violations. The Petitioner argued that all 

three of these provisions would thus 

appear impermissibly to preclude 

enforcement by the EPA or citizens for 

the excess emissions that would 

otherwise be violations. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitation must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. SIP provisions 

that create exemptions such that the 

excess emissions during malfunctions, 

necessary repairs, and routine modes of 

operation are not violations of the 

applicable emission limitations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. Two of the 

provisions identified by the Petitioner 

explicitly state that excess emissions 

under certain circumstances will ‘‘not 

be deemed violations,’’ which is 

contrary to the requirements of the 

CAA. The EPA believes that the 

inclusion of such exemptions from the 


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emission limitations in K.A.R. § 28–19– 

11(A) and the first part of K.A.R. § 28– 

19–11(C) is thus a substantial 

inadequacy and renders these specific 

SIP provisions impermissible. 

The EPA notes that these exemptions 

are impermissible even though the state 

has imposed some factual and temporal 

limitations on their potential scope. For 

example, in K.A.R. § 28–19–11(A), the 

state has specified that excess emissions 

during malfunctions or necessary 

repairs ‘‘shall not be deemed violations 

provided that: (1) The person 

responsible * * * notifies the 

department of the occurrence and 

nature of such malfunctions, 

breakdowns, or repairs, in writing, 

within ten (10) days of noted 

occurrence.’’ Similarly, in the first part 

of K.A.R. § 28–19–11(C) with respect to 

‘‘[e]xcessive contaminant emission from 

fuel burning equipment used for 

indirect heating purposes resulting from 

fuel or load changes, start up, soot 

blowing, cleaning of fires, and rapping 

of precipitators,’’ the state has made the 

exemption available only in such events 

that ‘‘do not exceed a period or periods 

aggregating more than five (5) minutes 

during any consecutive one (1) hour 

period.’’ Although these extra 

limitations on the scope of the 

exemptions are helpful features, the 

core problem remains that both of the 

provisions provide impermissible 

exemptions from the emission 

limitations by defining the excess 

emissions as non-violations. 

The EPA believes that both K.A.R. 

§ 28–19–11(B) and the second part of 

K.A.R. § 28–19–11(C) are impermissible 

as unbounded director’s discretion 

provisions that purport to make a state 

official the unilateral arbiter of whether 

the excess emissions in a given event 

constitute a violation. In the case of 

K.A.R. § 28–19–11(B), the provision 

authorizes a state official unilaterally to 

grant ‘‘prior approval’’ to permit 

‘‘[e]missions in excess of the limitations 

specified in these emission control 

regulations resulting from scheduled 

maintenance of control equipment and 

appurtenances.’’ The provision vests the 

state official with unilateral power to 

grant an exemption from the otherwise 

applicable emission limitation, without 

any public process at the state or federal 

level. By deciding that an exceedance of 

the emission limitation is ‘‘permitted,’’ 

exercise of this discretion could 

preclude enforcement by the EPA or 

through a citizen suit. K.A.R. § 28–19– 

11(B) does contain a requirement that 

the source establish that it was not 

possible for the scheduled maintenance 

to occur during periods of shutdown but 

nevertheless empowers the state official 

to create an exemption from the 

emission limitation, and such an 

exemption is impermissible in the first 

instance. Such a director’s discretion 

provision undermines the emission 

limitations in the SIP, and the emissions 

reductions they are intended to achieve, 

and renders them less enforceable by 

the EPA or through a citizen suit. 

Similarly, the EPA believes that the 

second part of K.A.R. § 28–19–11(C) is 

impermissible because it allows a state 

official unilaterally to ‘‘authorize, upon 

request of the operator, an adjusted time 

schedule for permitting * * * excessive 

emissions’’ if the source can 

demonstrate that the period of ‘‘fuel or 

load changes, start up, soot blowing, 

cleaning of fires, and rapping of 

precipitators’’ is required to extend 

longer than the five minutes during a 

consecutive one-hour period allowed by 

the first part of K.A.R. § 28–19–11(C). 

Because the K.A.R. § 28–19–11(C) grant 

of an automatic exemption of excess 

emissions during these events is 

impermissible in the first instance, the 

provision’s authorization of the state 

official to extend the period of 

exemption for an even longer period 

upon request from a source is also 

impermissible. Moreover, the provision 

permits the state official to extend the 

time period of exemption without any 

additional public process at the state or 

federal level. This discretion authorizes 

the creation of an extended exemption 

on a case-by-case basis, where the 

exemption is not permissible in the first 

instance. Thus, this provision 

undermines the SIP emission 

limitations, and the emissions 

reductions they are intended to achieve, 

and renders them less enforceable by 

the EPA or through a citizen suit. The 

EPA believes that the inclusion of 

director’s discretion provisions in 

K.A.R. § 28–19–11(B) and K.A.R. § 28– 

19–11(C) is thus a substantial 

inadequacy and renders these specific 

SIP provisions impermissible for this 

reason. 

The EPA notes that K.A.R. § 28–19– 

11(C) does condition the state official’s 

authorization of an extended time 

period in which excess emissions are 

not considered violations upon a source 

limiting ‘‘visible emissions’’ to not 

exceed 60 percent opacity. The CAA 

does, as discussed in section VII.A of 

this notice, permit states to develop 

alternative emission limitations or other 

forms of enforceable control measures or 

techniques that apply during startup or 

shutdown. The EPA believes that 

emission limitations in SIPs should 

generally be developed in the first 

instance to account for the types of 

normal operation outlined in K.A.R. 

§ 28–19–11(C), such as cleaning and 

soot blowing. K.A.R. § 28–19–11(C) does 

not appear to comply with the Act’s 

requirements as interpreted in the EPA’s 

SSM Policy in a number of respects. The 

provision’s exemptions apply to all SIP 

emission limitations, and the alternative 

limitation in K.A.R. § 28–19–11(C) 

restricts only visible emissions and 

thus, at best, is an alternative emission 

limitation only for particulate matter. In 

addition, such alternative emission 

limitations must be developed in 

consultation with the EPA and must be 

narrowly drawn to apply to small 

groups of sources using specific types of 

control strategy. To the extent that the 

requirement limiting the opacity of 

visible emissions during periods of fuel 

or load changes, start up, soot blowing, 

cleaning of fires, and rapping of 

precipitators in K.A.R. § 28–19–11(C) 

was intended to function as an 

alternative emission limitation rather 

than as an exemption granted at the 

state official’s discretion from the 

otherwise applicable SIP emission 

limitations, the terms of the alternative 

limitation are substantially inadequate 

and do not render this specific SIP 

provision permissible under the CAA. 

With respect to the Petitioner’s 

concern that the challenged exemptions 

preclude enforcement by the EPA or 

citizens, the EPA agrees that this is one 

of the critical reasons why such 

provisions are impermissible under the 

CAA. By having SIP provisions that 

automatically exempt or allow state 

officials to define what would otherwise 

be violations of the applicable SIP 

emission limitations as non-violations, 

the state has effectively negated the 

ability of the EPA or the public to 

enforce against those violations. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to K.A.R. § 28–19– 

11(A) and the first part of K.A.R. § 28– 

19–11(C). The EPA believes that both of 

these provisions allow for automatic 

exemptions from the otherwise 

applicable emission limitations, and 

that such outright exemptions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, by creating 

these impermissible exemptions, the 

state has defined violations in a way 

that would interfere with effective 

enforcement by the EPA and citizens for 

excess emissions during these events as 

provided in CAA sections 113 and 304. 

The EPA also proposes to grant the 

Petition with respect to K.A.R. § 28–19– 

11(B) and the second part of K.A.R. 


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167Petition at 49–50. 

168The EPA notes that the Petitioner also 

identified additional provisions Mo. Code Regs. 

Ann. tit 10, § 10–6.200(3)(E)(1), Mo. Code Regs. 

Ann. tit 10, § 10–6.200(3)(E)(3)(C)(I), Mo. Code 

Regs. Ann. tit 10, § 10–6.200(3)(E)(4)(B), Mo. Code 

Regs. Ann. tit 10, § 10–6.200(3)(E)(5)(E), Mo. Code 

Regs. Ann. tit 10, § 10–6.200(3)(E)(6)(F), Mo. Code 

Regs. Ann. tit 10, § 10–6.200(3)(E)(7)(E), Mo. Code 

Regs. Ann. tit 10, § 10–6.200(3)(E)(11)(C), which 

provide for exemptions to HMIWIs, that it alleged 

are inconsistent with the CAA and the EPA’s SSM 

Policy. However, the Petitioner did not request that 

the EPA address these provisions in its remedy 

request, and thus the EPA is not addressing these 

provisions in this action. (This is in contrast to the 

case of a similar HMIWI provision in Nebraska for 

which the Petition did specifically make such a 

request.) The EPA further notes that the provisions 

enumerated above are not part of Missouri’s SIP but 

were approved as part of the separate state plan to 

meet the applicable emissions guidelines under 

CAA § 111(d) and 40 CFR Part 60. Therefore, a SIP 

call is not appropriate. The EPA may elect to 

evaluate these provisions in a later action. 169Petition at 50. 

§ 28–19–11(C). The EPA believes both 

allow for exemptions from otherwise 

applicable 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. Such provisions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions. Moreover, the 

requirement that visible emissions not 

exceed 60-percent opacity during the 

periods of operation specified in K.A.R. 

§ 28–19–11(C) is not a permissible 

alternative emission limitation under 

the EPA’s SSM Policy interpreting the 

CAA. 

For these reasons, the EPA is 

proposing 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 is proposing to issue a SIP call 

with respect to these provisions. 

3. Missouri 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the Missouri SIP that 

could be interpreted to provide 

discretionary exemptions.167 168 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)). The Petitioner 

argued that Mo. Code Regs. Ann. tit 10, 

§ 10–6.050(3)(C) ‘‘clearly gives the 

director the authority to decide whether 

excess emissions occurred during a 

malfunction, start-up, or shutdown, and 

whether they ‘warrant enforcement 

action.’ ’’ 169 According to the Petitioner, 

the provision could be interpreted to 

decide that enforcement is not 

warranted by anybody, which could 

preclude action by the EPA and citizens 

for both civil penalties and injunctive 

relief, and such an interpretation is 

inconsistent with the CAA and the 

EPA’s SSM policy interpreting the CAA. 

Similarly, the Petitioner argued that Mo. 

Code Regs. Ann. tit 10, § 10–6.220(3)(C) 

could be construed to empower the 

director to preclude enforcement by the 

EPA and citizens. The Petitioner noted 

that the CAA and the EPA’s SSM policy 

forbid such provisions if they would 

purport to preclude enforcement by the 

EPA or citizens. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

section 110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitations must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. 

The EPA believes that Mo. Code Regs. 

Ann. tit 10, § 10–6.220(3)(C) is 

impermissible as an insufficiently 

bounded director’s discretion provision. 

The provision states that ‘‘[v]isible 

emissions over the limitations * * * of 

this rule are in violation of this rule 

unless the director determines that the 

excess emissions do not warrant 

enforcement action based on data 

submitted’’ by sources regarding startup, 

shutdown, and malfunction events. This 

provision could be read to mean that 

once the state official has determined 

that excess visible emissions do not 

warrant enforcement action, those 

excess emissions are not violations. 

Such an interpretation would make the 

state official the unilateral arbiter of 

whether the excess emissions in a given 

event constitute a violation, which 

could preclude enforcement by the EPA 

or the public who might disagree about 

whether enforcement action is 

warranted. Most importantly, however, 

the provision may be read to authorize 

the state official to create an exemption 

from the emission limitation, and such 

an exemption is impermissible in the 

first instance. The EPA believes that the 

inclusion of an insufficiently bounded 

director’s discretion provision in Mo. 

Code Regs. Ann. tit 10, § 10–6.220(3)(C) 

is thus a substantial inadequacy and 

renders this specific SIP provision 

impermissible for this reason. 

The EPA believes that Mo. Code Regs. 

Ann. tit 10, § 10–6.050(3)(C) is 

permissible because it defines 

parameters for the exercise of 

enforcement discretion by state 

personnel for violations of emission 

limitations. According to the EPA’s SSM 

Policy, as discussed in section IX.A of 

this notice, a state has authority to have 

a SIP provision that pertains to the 

exercise of enforcement discretion 

concerning actions taken by state 

personnel. The provision only 

maintains that state enforcement 

personnel ‘‘shall consider’’ certain 

factors in determining whether to take 

an enforcement action under the state 

statutory enforcement provisions. The 

regulations do not state or imply that if 

a source makes an appropriate showing 

it is exempt from penalties or injunctive 

relief. The provisions that describe the 

factors to be considered by a state 

official only state that the official will 

consider such factors. The provision 

does not state or imply that any other 

entity, including the EPA or a member 

of the public, is precluded from taking 

an enforcement action if the state 

exercises its discretion not to pursue 

enforcement. The EPA believes that Mo. 

Code Regs. Ann. tit 10, § 10–6.050(3)(C) 

is consistent with the CAA and the 

EPA’s SSM Policy and therefore does 

not render the SIP provision 

substantially inadequate. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Mo. Code Regs. 

Ann. tit 10, § 10–6.220(3)(C). The EPA 

believes 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. 

Such a provision is inconsistent with 

the fundamental requirements of the 

CAA with respect to SIPs as required by 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For these reasons, the EPA is 

proposing to find Mo. Code Regs. Ann. 

tit 10, § 10–6.220(3)(C) is substantially 

inadequate to meet CAA requirements 

and thus is proposing to issue a SIP call 

with respect to this provision. 


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12528 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

170Petition at 51. 

171Petition at 51. 

172Petition at 51–52. 

173Petition at 52. 

The EPA proposes to deny the 

Petition with respect to Mo. Code Regs. 

Ann. tit 10, § 10–6.050(3)(C). The EPA 

believes that the provision is on its face 

clearly applicable only to Missouri state 

enforcement personnel and that the 

provision 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. The 

EPA solicits comments on this issue, in 

particular from the State of Missouri, to 

assure that there is no misunderstanding 

with respect to the correct interpretation 

of Mo. Code Regs. Ann. tit 10, § 10– 

6.050(3)(C). 

4. Nebraska 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the Nebraska SIP.170 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). The Petitioner argued that 

this provision ‘‘clearly gives the Director 

the authority to decide whether excess 

emission occurred during a 

malfunction, startup or shutdown, and 

whether they ‘warrant enforcement 

action.’ ’’ 171 According to the Petitioner, 

the provision could be interpreted to 

give a state official the authority to 

decide that enforcement is not 

warranted by anybody, which could 

preclude action by the EPA and citizens 

for both civil penalties and injunctive 

relief, and such an interpretation is 

inconsistent with the CAA and the 

EPA’s SSM policy interpreting the CAA. 

The Petitioner thus requested that 

Nebraska revise the provision to 

eliminate any confusion that a decision 

by state personnel not to enforce against 

a violation would in any way foreclose 

enforcement by the EPA or citizens. 

Second, the Petitioner objected to a 

specific provision in Nebraska state law 

that contains exemptions for excess 

emissions at HMIWI during startup, 

shutdown, and malfunction (Neb. 

Admin. Code Title 129 § 18–004.02). 

The Petitioner requested that these 

exemptions be removed entirely from 

Nebraska’s SIP. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitations must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. 

The EPA believes that Neb. Admin. 

Code Title 129 § 11–35.001 is 

permissible because it defines 

parameters for the exercise of 

enforcement discretion by state 

personnel for violations of emission 

limitations. According to the EPA’s SSM 

Policy, as discussed in section IX.A of 

this notice, a state has authority to have 

a SIP provision that pertains to the 

exercise enforcement discretion 

concerning actions taken by state 

personnel. The provision in question 

maintains that state enforcement 

personnel ‘‘shall consider’’ certain 

factors in determining whether to take 

an enforcement action under the state 

statutory enforcement provisions. The 

regulation does not expressly or 

implicitly place any limits on the state 

personnel’s ability to exercise 

discretion, and the enforcement 

discretion provided by this regulation is 

not an exemption to the SIP emission 

limitations. The provision does not state 

or imply that any other entity, including 

the EPA or a member of the public, is 

precluded from taking enforcement 

action if the state exercises its discretion 

not to pursue enforcement. The EPA 

believes that Neb. Admin. Code Title 

129 § 11–35.001 is consistent with the 

CAA and the EPA’s SSM Policy and 

therefore does not render the SIP 

substantially inadequate. 

The EPA disagrees that the provisions 

providing exemptions for HMIWI must 

be removed from the SIP. Nebraska 

Admin. Code Title 129 § 18–004.02 was 

not approved into Nebraska’s SIP, but 

rather it was approved as part of the 

separate state plan to meet the 

applicable emissions guidelines under 

CAA § 111(d) and 40 CFR Part 60. 

Because that rule is not in the Nebraska 

SIP is not related to any provisions in 

the SIP, it does not represent an 

inadequacy in the SIP. 

c. The EPA’s Proposal 

The EPA proposes to deny the 

Petition with respect to Neb. Admin. 

Code Title 129 § 11–35.001. The EPA 

believes that this provision is on its face 

clearly applicable only to Nebraska state 

enforcement personnel and that the 

provision could not reasonably be read 

by a court to foreclose enforcement by 

the EPA or through a citizen suit where 

personnel from Nebraska elect to 

exercise enforcement discretion. The 

EPA solicits comments on this issue, in 

particular from the State of Nebraska, to 

assure that there is no misunderstanding 

with respect to the correct interpretation 

of this provision. 

The EPA proposes to deny the 

Petition with respect to Neb. Admin. 

Code Title 129 § 18–004.02. This 

regulation is not part of the Nebraska 

SIP and thus cannot represent an 

inadequacy in the SIP. 

5. Nebraska: Lincoln-Lancaster 

a. Petitioner’s Analysis 

The Petitioner objected to a generally 

applicable provision in the LincolnLancaster County Air Pollution Control 

Program (Art. 2 § 35), which governs the 

Lincoln-Lancaster County Air Pollution 

Control District of Nebraska, that is 

parallel ‘‘in all aspects pertinent to this 

analysis’’ to Neb. Admin. Code Title 129 

§ 11–35.001.172 The Lincoln-Lancaster 

County provision provides 

authorization to local personnel to 

decide whether excess emissions 

‘warrant enforcement action’’ where a 

source submits information to the 

county showing that such emissions 

were ‘‘the result of a malfunction, startup or shutdown.’’ The Petitioner argued 

that this provision ‘‘clearly gives the 

Director the authority to decide whether 

excess emission occurred during a 

malfunction, startup or shutdown, and 

whether they ’warrant enforcement 

action.’ ’’ 173 According to the Petitioner, 

the provision could be interpreted to 

decide that enforcement is not 

warranted by anybody, which could 

preclude action by the EPA and citizens 

for both civil penalties and injunctive 

relief, and such an interpretation is 

inconsistent with the CAA and the 

EPA’s SSM Policy interpreting the CAA. 

The Petitioner thus requested that 

Nebraska or Lincoln-Lancaster County 

revise the provision to eliminate any 

confusion that a decision by local 

personnel not to enforce against a 

violation would in any way foreclose 

enforcement by the EPA or citizens. 

b. The EPA’s Evaluation 

The EPA agrees that the CAA does not 

allow for exemptions from otherwise 

applicable SIP emission limitations, 

whether automatic or through the 

exercise of a state official’s discretion. In 


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174Petition at 25–27. 175 Id. at 25. 176See, 5 Colo. Code Regs § 1001–2(II.E.1.j). 

177See, ‘‘Approval and Disapproval and 

Promulgation of Colorado Affirmative Defense 

Provisions for Startup and Shutdown,’’ 71 FR 8958 

(Feb. 22, 2006). 

accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. Thus, any excess 

emissions above the level of the 

applicable emission limitations must be 

considered violations, whether or not 

the state elects to exercise its 

enforcement discretion. 

The EPA believes that LincolnLancaster County Air Pollution Control 

Program, Art. 2 § 35 is permissible 

because it defines parameters for the 

exercise of enforcement discretion by 

local personnel for violations of 

emission limitations. According to the 

EPA’s SSM Policy, as discussed in 

section IX.A of this notice, a state has 

authority to have a SIP provision that 

pertains to the exercise enforcement 

discretion concerning actions taken by 

state personnel. The provision in 

question maintains that local 

enforcement personnel ‘‘shall consider’’ 

certain factors in determining whether 

to take an enforcement action under the 

local statutory enforcement provisions. 

The regulation does not expressly or 

implicitly place any limits on the local 

personnel’s ability to exercise 

discretion, and the enforcement 

discretion provided by the regulation is 

not an exemption to the SIP emission 

limitations. The provision does not state 

or imply that any other entity, including 

the EPA or a member of the public, is 

precluded from taking enforcement 

action if the county exercises its 

discretion not to pursue enforcement. 

The EPA believes that Lincoln-Lancaster 

County Air Pollution Control Program, 

Art. 2 § 35 is consistent with the CAA 

and EPA’s SSM Policy and therefore 

does not render the SIP substantially 

inadequate. 

c. The EPA’s Proposal 

The EPA proposes to deny the 

Petition with respect to LincolnLancaster County Air Pollution Control 

Program, Art. 2 § 35. The EPA believes 

that this provision is on its face clearly 

applicable only to Lincoln-Lancaster 

County enforcement personnel and that 

the provision 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 to exercise enforcement 

discretion. The EPA solicits comments 

on this issue, in particular from the 

State of Nebraska and from the LincolnLancaster County Air Pollution Control 

Program, to assure that there is no 

misunderstanding with respect to the 

correct interpretation of this provision. 

I. Affected States in EPA Region VIII 

1. Colorado 

a. Petitioner’s Analysis 

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)).174 The 

Petitioner acknowledged that this state 

has correctly revised its SIP in 

important ways in order to be consistent 

with CAA requirements, as interpreted 

in the EPA’s SSM Policy, including 

providing affirmative defense provisions 

that are limited to monetary penalties, 

that do not apply in actions to enforce 

federal standards such as NSPS or 

NESHAP approved into the SIP, and 

that meet ‘‘almost word for word’’ the 

recommendations of the 1999 SSM 

Guidance. Nevertheless, the Petitioner 

had two concerns with these SIP 

provisions. 

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 state 

had properly followed EPA guidance in 

the affirmative defense provision 

applicable to startup and shutdown 

events but failed to do so in the 

affirmative defense provision applicable 

to malfunctions. Specifically, the 

Petitioner argued that the EPA’s own 

guidance for affirmative defenses 

recommended that they ‘‘are not 

appropriate where a single source or a 

small group of sources has the potential 

to cause an exceedance of the NAAQS 

or PSD increments.’’ 175 Instead, the 

state’s affirmative defense for 

malfunction events is potentially 

available to any source, if it can 

establish that the excess emissions 

during the event did not result in 

exceedances of ambient air quality 

standards that could be attributed to the 

source.176 The Petitioner objected to this 

as not merely inconsistent with the 

EPA’s 1999 SSM Guidance but an 

approach ‘‘that does not have the same 

deterrent effect’’ on sources and that 

would not have the same effects on 

sources to assure that they comply at all 

times in order to avoid violations. As a 

practical matter, the Petitioner also 

argued that including this element to 

the affirmative defense could ‘‘mire 

enforcement proceedings in the 

question of whether or not the NAAQS 

or PSD increments were exceeded as a 

matter of fact.’’ 

b. The EPA’s Evaluation 

The EPA disagrees with the 

Petitioner’s contention that no 

affirmative defense provisions are 

permissible in SIPs under the CAA. As 

explained in more detail in section IV.B 

of this notice, the EPA interprets the 

CAA to allow affirmative defense 

provisions for malfunctions. So long as 

these provisions are narrowly drawn 

and consistent with the CAA, as 

recommended in the EPA’s guidance for 

affirmative defense provisions in SIPs, 

the EPA believes that states may elect to 

have affirmative defense provisions for 

malfunctions. However, based on 

evaluation of the legal and factual basis 

for affirmative defenses in SIPs, the EPA 

now believes that affirmative defense 

provisions are not appropriate in the 

case of planned source actions, such as 

startup and shutdown, because sources 

should be expected to comply with 

applicable emission limitations during 

those normal planned and predicted 

modes of source operation. Again, as 

explained in section IV.B of this notice, 

the EPA is changing its interpretation 

with respect to affirmative defenses for 

startup and shutdown. The EPA 

acknowledges that at the time of its 

approval of 5 Colo. Code Regs § 1001– 

2(II.J) into the SIP in 2006, the state had 

complied with the EPA’s thenapplicable interpretation of the CAA 

and had worked with the EPA to 

develop that provision.177 However, 

based on further consideration of this 

issue prompted by the Petition, the EPA 

is revising its SSM Policy to interpret 

the CAA to allow affirmative defenses 

only in the case of events that are 

beyond the control of the source, i.e., 

malfunctions. 

With respect to the Petitioner’s 

second concern, the EPA disagrees that 

the state’s inclusion of an affirmative 

defense available to all sources, 

including single sources or groups of 

sources with the ‘‘potential’’ to cause 

exceedances of the NAAQS or PSD 

increments, renders the provision 

inconsistent with the CAA. The EPA’s 

recommendations for appropriate 

criteria for affirmative defenses in the 

SSM Policy are guidance, and as 

guidance, the EPA believes that there 

can be facts and circumstances in which 

a state may elect to develop a SIP 


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178Petition at 50–51. 

179 Id. at 51. 

180See, Montana Admin. R 17.8.334(1). 

181The EPA notes that the state has elected to 

control fluoride emissions as a means of addressing 

particulate matter from the affected sources. 

provision with somewhat different 

criteria, so long as they still meet the 

same statutory objectives. Conditioning 

the affirmative defense on a factual 

showing that there was no actual 

violation of air standards attributable to 

the excess emissions during the 

malfunction is an acceptable alternative 

means to the same end. For example, 

instead of providing no affirmative 

defense to sources with this ‘‘potential’’ 

for these impacts on air quality, the state 

could provide the affirmative defense to 

sources on the condition that the source 

must be able to demonstrate that the 

excess emissions did not have these 

impacts. The EPA considers this an 

appropriate means to the same end of 

providing the affirmative defense to 

sources in a way that provides relief 

from monetary penalties for events that 

were beyond their control, at the same 

time providing incentive to the source 

to prevent the violation and to take all 

practicable steps to minimize the 

impacts of the violation in order to 

qualify for the relief from penalties. As 

described in more detail in section VII.B 

of this notice, the EPA is revising its 

recommendations for affirmative 

defense provisions for malfunctions 

with respect to this specific point in this 

proposal. 

Finally, the EPA understands the 

Petitioner’s concern about enforcement 

proceedings becoming ‘‘mired’’ in 

various questions of fact that must be 

established in an enforcement action. 

However, the EPA notes that all 

enforcement proceedings turn upon 

important questions of fact that must be 

proven, including facts necessary to 

establish whether there was a violation, 

the extent of the violation, and whether 

there are extenuating circumstances that 

should be taken into consideration in 

the assessment of monetary penalties or 

injunctive relief for the violation. 

Indeed, the statutory factors that 

Congress provided for the assessment of 

penalties in CAA section 113(e) 

explicitly include ‘‘the seriousness of 

the violation,’’ which would encompass 

the extent and severity of the 

environmental impact of the violation. 

Thus, the EPA does not agree that it is 

unreasonable to include an affirmative 

defense element that pertains to 

whether or not the excess emissions in 

question caused a violation of the 

NAAQS or PSD increments. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to 5 Colo. Code 

Regs § 1001–2(II.J) because it provides 

an affirmative defense for violations due 

to excess emissions applicable during 

startup and shutdown events, contrary 

to the EPA’s current interpretation of 

the CAA. The EPA believes that this 

provision allows for an affirmative 

defense that is inconsistent with the 

fundamental requirements of CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). In addition, this provision is 

inconsistent with the requirements of 

CAA sections 113 and 304. For these 

reasons, the EPA is proposing to find 

that this provision is substantially 

inadequate to meet CAA requirements 

and proposes to issue a SIP call with 

respect to this provision. 

The EPA proposes to deny the 

Petition with respect to 5 Colo. Code 

Regs § 1001–2(II.E), because this 

provision includes an affirmative 

defense applicable to malfunction 

events that is consistent with the 

requirements of the CAA, as interpreted 

by the EPA in the SSM Policy. In 

particular, the EPA denies the Petition 

with respect to the claim that this 

provision is inconsistent with the CAA 

because it is available to sources or 

groups of sources that might have the 

potential to cause violations of the 

NAAQS or PSD increments. The EPA 

believes that an acceptable alternative 

approach is to require the source to 

establish, as an element of the 

affirmative defense, that the excess 

emissions in question did not cause 

such impacts. Accordingly, the EPA is 

proposing to find that this provision is 

consistent with CAA requirements and 

thus declining to make a finding of 

substantial inadequacy with respect to 

this provision. 

2. Montana 

a. Petitioner’s Analysis 

The Petitioner objected to an 

exemption from otherwise applicable 

emission limitations for aluminum 

plants during startup and shutdown 

(Montana Admin. R 17.8.334).178 The 

Petitioner argued that an automatic 

exemption for emissions during startup 

and shutdown events is inconsistent 

with the CAA and the EPA’s 

interpretation of the CAA in the SSM 

Policy. In addition, the Petitioner 

argued that these exemptions also could 

not qualify as source-specific alternative 

limits applicable during startup and 

shutdown because there ‘‘is nothing to 

indicate that the State addressed the 

feasibility of control strategies, 

minimization of the frequency and 

duration of startup and shutdown 

modes, worst-case emissions, and 

impacts on air quality.’’ 179 The 

Petitioner further objected that this 

provision would be in contravention of 

the EPA’s recommendation that sourcespecific emission limitations for startup 

and shutdown would not be appropriate 

when a single source or small group of 

sources has the potential to cause an 

exceedance of the NAAQS or PSD 

increments. 

b. The EPA’s Evaluation 

The EPA agrees that ARM 17.8.334 (in 

Administrative Rule of Montana) is 

inconsistent with the requirements of 

the CAA. This provision explicitly 

provides that affected sources are 

exempted from otherwise applicable SIP 

emission limitations during startup and 

shutdown. The relevant part of this SIP 

provision specifies that ‘‘[o]perations 

during startup and shutdown shall not 

constitute representative conditions for 

the purposes of determining compliance 

with this rule’’ and further specifies 

‘‘nor shall emission in excess of the 

levels required in ARM 17.8.331 and 

17.8.332 during periods of startup and 

shutdown be considered a violation of 

ARM 17.8.331 and 17.8.332.’’ 180 The 

latter regulatory cross-references are to 

emission limits for fluorides and opacity 

at the source, both of which relate to the 

attainment and maintenance of the 

NAAQS and PSD increments.181

Moreover, the provision in question also 

contains ambiguous regulatory text that 

suggests the exemption extends to other 

emission limitations applicable to this 

source category. By stating that 

operations during startup and shutdown 

are not representative conditions for 

determining compliance with ‘‘this 

rule,’’ the provision appears to provide 

the same exemptions from other 

emission limitations that may apply to 

aluminum plants with respect to other 

air emissions as well. The EPA’s 

longstanding interpretation of the CAA 

is that SIP provisions containing 

exemptions during startup and 

shutdown are not permissible. 

The EPA also agrees that ARM 

17.8.334 does not qualify as a sourcespecific emission limitation applicable 

during startup and shutdown, as 

recommended in the 1999 SSM 

Guidance. As explained in section VII.A 

of this notice, the EPA is clarifying that 

guidance to eliminate any 

misperception that exemptions from 

otherwise applicable emission 

limitations are permissible during 

startup and shutdown. States can elect 

to develop appropriate source-specific 

alternative emission limitations that 


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182Petition at 59. 

183The EPA interprets the Petitioner’s reference 

to N.D. Admin. Code § 33–15–03–04(4) as a citation 

to N.D. Admin. Code 33–15–03–04.4. The EPA 

notes also that the Petitioner specifically focused on 

concern with N.D. Admin. Code 33–15–04.4, but 

N.D. Admin. Code 33–15–03–04.3 also includes a 

related problem. 

apply during startup and shutdown 

events. The EPA recommended that in 

order to be approvable (i.e., meet CAA 

requirements), any new special 

emission limitations 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. Any such SIP 

revision that would alter the existing 

applicable emission limitations for a 

source during startup and shutdown 

must meet the same requirements as any 

other SIP submission, i.e., compliance 

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

and 193, and any other CAA provision 

substantively germane to the SIP 

revision. Given the text of ARM 

17.8.334, however, the EPA believes the 

state intended not to create a sourcespecific emission limitation applicable 

during startup and shutdown but 

instead merely an exemption for such 

emissions. Likewise, the EPA does not 

believe that the issue of special 

emission limitations during startup or 

shutdown for a single source or group 

of sources was contemplated at the time 

the state created this SIP provision. 

Nevertheless, the EPA notes that its 

current SSM Policy does not interpret 

the CAA to be a bar to special emission 

limitations in these circumstances, if the 

state addresses the concern about 

impacts on NAAQS and PSD increments 

in some other comparable way. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to ARM 17.8.334. 

The EPA believes that this provision 

allows for exemptions from otherwise 

applicable SIP emission limitations 

during startup and shutdown and that 

such exemptions are inconsistent with 

the fundamental requirements of CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). It is not necessary to reach the 

Petitioner’s argument that this provision 

is not an appropriate source-specific 

emission limitation, because the 

provision at issue instead provides an 

impermissible exemption for emissions 

during startup and shutdown. Similarly, 

it is not necessary to reach the 

Petitioner’s concern with respect to the 

issue of a single source or group of 

sources with the potential to cause an 

exceedance of the NAAQS or PSD 

increment, because the provision at 

issue provides an impermissible 

exemption. For these reasons, the EPA 

is proposing to find that this provision 

is substantially inadequate to meet CAA 

requirements and thus proposes to issue 

a SIP call with respect to this provision. 

3. North Dakota 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the North Dakota SIP that 

create exemptions from otherwise 

applicable emission limitations.182 The 

first provision creates exemptions from 

a number of cross-referenced 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)). The Petitioner claimed that 

both provisions violate the CAA and the 

EPA’s interpretation of the CAA in the 

SSM Policy because they create 

exemptions from otherwise applicable 

emission limitations for excess 

emissions during these events rather 

than treating the excess emissions as 

violations, and because the provisions 

could be construed to preclude 

enforcement of the emission limitations 

for these violations by the EPA and 

citizens. 

b. The EPA’s Evaluation 

The EPA believes that N.D. Admin. 

Code 33–15–03–04.4 and N.D. Admin. 

Code 33–15–03–04.3 183 are inconsistent 

with the requirements of the CAA. 

These provisions explicitly allow 

exemptions from the otherwise 

applicable emission limitations for 

opacity in several other regulations: 

N.D. Admin. Code 33–15–03–01, N.D. 

Admin. Code 33–15–03–02, N.D. 

Admin. Code 33–15–03–03, and N.D. 

Admin. Code 33–15–03–03.1. The 

exemption created by N.D. Admin. Code 

33–15–03–04.4 is indefinite in scope 

and has unclear limits, because it is 

available whenever a source cannot 

meet the emission limitations ‘‘because 

of operations or 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 [emission limitations]’’. It is 

unclear whether the provision is 

intended to apply only to special 

circumstances, such as malfunctions, or 

to a broader range of normal source 

operations. It is also unclear who 

determines what operations or processes 

make compliance impossible or who 

determines when it again becomes 

technically feasible to meet the limits. 

Whatever the parameters of this 

imprecise provision, however, it is clear 

that it contemplates outright exemptions 

from the applicable emission limitations 

under certain circumstances and at 

certain times. 

The EPA believes that N.D. Admin. 

Code 33–15–03–04.3 is impermissible 

under the CAA as interpreted in the 

EPA’s SSM Policy as an unbounded 

director’s discretion provision. The 

provision states that the otherwise 

applicable emission limitations for 

opacity in the several other listed 

regulations do not apply ‘‘where an 

applicable opacity standard is 

established for a specific source.’’ In 

accordance with this provision, a state 

official could modify the opacity limits 

in a permit or other document to allow 

emissions in excess of the otherwise 

applicable SIP limitations. As discussed 

in section VII.A of this notice, such 

director’s discretion provisions are 

impermissible. Such an interpretation 

would make the state official the 

unilateral arbiter of whether the excess 

emissions in a given event constitute a 

violation, which could preclude 

enforcement by the EPA or the public 

who might disagree about whether 

enforcement action is warranted. Most 

importantly, however, the provision 

may be read to authorize the state 

official to create an exemption from the 

emission limitation, and such an 

exemption is impermissible in the first 

instance. The EPA believes that the 

inclusion of an unbounded director’s 

discretion provision in N.D. Admin. 

Code 33–15–03–04.3 is thus a 

substantial inadequacy and renders this 

specific SIP provision impermissible for 

this reason. 

In accordance with the requirements 

of CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. SIP provisions that 

create exemptions such that the excess 

emissions during startup, shutdown, or 

malfunctions are not violations of the 

applicable emission limitations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. The 

exemptions provided in N.D. Admin. 

Code 33–15–03–04.4 are not consistent 

with CAA requirements, because they 

would exempt excess emissions that 


srobinson on DSK4SPTVN1PROD with PROPOSALS3
12532 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

184The EPA interprets the Petitioner’s reference 

to N.D. Admin. Code § 33–15–05–01(2)(a)(1) as a 

citation to N.D. Admin. Code 33–15–05–01.2a(1). 185Petition at 66. 

occur during the periods in question. In 

addition, the provision does not operate 

to create a source-specific emission 

limitation that applies during the 

periods in question, nor does it meet the 

recommended criteria and parameters 

for an affirmative defense for violations 

that occur as a result of a qualifying 

malfunction. Moreover, the amorphous 

nature of the provision, in which it is 

unclear who makes the determination 

whether the source should be excused 

from the emission limitations and what 

the precise parameters are for these 

exemptions, exacerbates the problem. 

Thus, the EPA also agrees with the 

Petitioner’s concern that this provision 

could be interpreted to bar enforcement 

by the EPA or through a citizen suit, not 

only because it creates impermissible 

exemptions but also because of the 

inherent ambiguities about: (i) Who 

makes the determination whether the 

excess emissions are to be considered a 

violation; and (ii) what constitutes an 

event during which the excess 

emissions are to be excused. In its 

current form, the EPA has concerns not 

only about the impermissible 

exemptions created by the provision but 

also about its practical enforceability as 

a SIP provision meeting basic CAA 

requirements for implementation, 

maintenance, and enforcement of the 

NAAQS as contemplated in CAA 

section 110. 

The EPA agrees that N.D. Admin. 

Code 33–15–05–01.2a(1) 184 is also 

inconsistent with CAA requirements for 

SIP provisions. This 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 in general imposes 

emission limitations for particulate 

matter from industrial processes, with 

the limitations stated in terms of the 

maximum amount of particulate matter 

allowed in any one hour. 

Notwithstanding these emission 

limitations, however, N.D. Admin. Code 

33–15–05–01.2a(1) provides that: 

[t]emporary operational breakdowns or 

cleaning of air equipment for any process are 

permitted provided that the owner or 

operator immediately advises the department 

of the circumstances and outlines an 

acceptable corrective program and provided 

such operations do not cause an immediate 

public health hazard (emphasis added). 

Although N.D. Admin. Code 33–15– 

05–01.2a(1) does not explicitly state that 

the exceedances of the emission 

limitations are not violations, the EPA 

believes that this is the most reasonable 

reading of the provision. Moreover, the 

title for this subsection is ‘‘exceptions,’’ 

and the immediately preceding 

provisions impose the emission 

limitations on sources. Thus, the 

provision creates an impermissible 

exemption from the otherwise 

applicable SIP emission limitations. 

The EPA notes that although the state 

has imposed some conditions on the 

exemptions, e.g., the requirement to 

notify state officials of occurrence of the 

event, this provision would not qualify 

as an affirmative defense consistent 

with CAA requirements. First, the 

exemptions would negate the 

availability of monetary penalties or 

injunctive relief in any enforcement 

proceeding. Second, the conditions for 

qualifying for the exemption are not 

consistent with the criteria that EPA 

recommends for elements of an 

affirmative defense for which the source 

bears the burden of proof in order to 

assure that they are narrowly drawn and 

available only in suitable circumstances. 

Third, the provision extends not just to 

‘‘breakdowns,’’ which presumably 

equates to malfunctions, but also 

extends to ‘‘cleaning of air equipment,’’ 

which clearly encompasses excess 

emissions during normal source 

maintenance—events for which sources 

should be designed, operated, and 

maintained to comply with emission 

limitations, and during which sources 

should be expected to comply. 

c. The EPA’s Proposal 

The EPA proposes 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)). The EPA believes that this 

provision allows for exemptions from 

otherwise applicable SIP emission 

limitations during startup and 

shutdown and that such exemptions are 

inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In 

addition, the EPA believes that this 

provision is sufficiently ambiguous that 

it would be difficult for the state, the 

EPA, or the public to enforce the 

provision effectively in its current form, 

and that this provision is thus 

inconsistent with the requirements of 

CAA section 110(a) on this basis as well. 

For these reasons, the EPA is proposing 

to find that this provision is 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to this provision. 

The EPA also proposes to grant the 

Petition with respect to N.D. Admin. 

Code 33–15–03–04.3 (cited in the 

Petition as N.D. Admin. Code § 33–15– 

03–04(3)). The EPA believes that this 

provision allows for discretionary 

exemptions from otherwise applicable 

emission limitations through a state 

official’s unilateral exercise of 

discretionary authority that is 

insufficiently bounded. Such provisions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

SIPs and SIP revisions. Moreover, the 

discretion created by these provisions 

allows case-by-case exemptions from 

emission limitations, when such 

exemptions are not permissible in the 

first instance. Such exemptions are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). For these reasons, the EPA 

is proposing to find that this provision 

is substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

The EPA also proposes 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)). The EPA believes that 

this provision allows for exemptions 

from otherwise applicable SIP emission 

limitations during operational 

breakdowns (i.e., malfunctions) or 

cleaning of air equipment (i.e., 

maintenance) and that such exemptions 

are inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

For these reasons, the EPA is also 

proposing to find that this provision is 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to this provision. 

4. South Dakota 

a. Petitioner’s Analysis 

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)).185 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.’’ The 

Petitioner argued that such automatic 

exemptions for excess emissions is 

contrary to the requirements of the CAA 

for SIP provisions, as well as contrary to 

the EPA’s 1982 SSM Guidance and 1999 

SSM Guidance. 


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186Petition at 74. The EPA notes that the 

Petitioner appears to have provided an incorrect 

citation to this provision; accordingly, in this 

notice, the EPA replaces that citation with the 

following: ‘‘Wyoming Air Quality Standards and 

Regulations (WAQSR) Chapter 3, section 2(d).’’ 

187 Id. 188Petition at 20–22. 

b. The EPA’s Evaluation 

The EPA agrees that S.D. Admin. R. 

74:36:12:02(3) is inconsistent with CAA 

requirements for SIP provisions. This 

provision creates an exemption from 

applicable visible emission limitations 

from the generally applicable SIP 

requirements. The S.D. Admin. R. 

74:36:12:01 imposes a generally 

applicable opacity limit on all sources, 

measured using the EPA’s Method 9. 

However, S.D. Admin. R. 74:36:12:02 

provides exceptions to these limits and, 

in particular, in S.D. Admin. R. 

74:36:12:02(3) includes an explicit 

exemption for emissions for ‘‘brief 

periods during such operations as soot 

blowing, start-up, shut-down, and 

malfunctions.’’ 

In accordance with the requirements 

of CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in 

accordance with the definition of 

‘‘emission limitations’’ in CAA section 

302(k), such emission limitations must 

be continuous. SIP provisions that 

create exemptions such that the excess 

emissions during startup, shutdown, or 

malfunctions are not violations of the 

applicable emission limitations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. In 

addition, the EPA’s SSM Policy has long 

interpreted the CAA not to permit 

exemptions for excess emissions during 

other modes of normal source operation, 

such as ‘‘soot blowing.’’ The EPA notes 

that by its terms, S.D. Admin. R. 

74:36:12:02(3) implies that it also would 

exempt excess emissions during other 

modes of normal source operation 

because it explicitly applies to events 

‘‘such as’’ the four listed types, therefore 

implying it is not an exclusive list and 

could extend to other types of events as 

well. The exemptions provided in S.D. 

Admin. R. 74:36:12:02(3) are not 

consistent with CAA requirements, 

because they would exempt excess 

emissions that occur during the periods 

in question. Excess emissions must be 

treated as violations of the applicable 

emission limitations. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to S.D. Admin. R. 

74:36:12:02(3). The EPA believes that 

this provision allows for exemptions 

from otherwise applicable SIP emission 

limitations during startup, shutdown, 

and malfunction, as well as during other 

modes of normal source operations such 

as ‘‘soot blowing.’’ Automatic 

exemptions from otherwise applicable 

SIP emission limitations are 

inconsistent with the fundamental 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

For these reasons, the EPA is also 

proposing to find that this provision is 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to this provision. 

5. Wyoming 

a. Petitioner’s Analysis 

The Petitioner objected to a specific 

provision in the Wyoming SIP that 

provides an exemption for excess 

particulate matter emissions from diesel 

engines during startup, malfunction, 

and maintenance (ENV–AQ–1 Wyo. 

Code R. § 2(d)).186 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.’’ 

The Petitioner argued that this 

exemption ‘‘is contrary to EPA policy 

for source category-specific rules for 

startup and shutdown.’’ 187 Accordingly, 

the Petitioner requested that this 

provision be eliminated from the SIP. 

b. The EPA’s Evaluation 

The EPA believes that the CAA does 

not allow for exemptions from 

otherwise applicable SIP emission 

limitations. In accordance with the 

requirements of CAA section 

110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance 

with the definition of ‘‘emission 

limitations’’ in CAA section 302(k), 

such emission limitations must be 

continuous. Thus, any excess emissions 

above the level of the applicable 

emission limitation must be considered 

violations, whether or not the state 

elects to exercise its enforcement 

discretion. SIP provisions that create 

exemptions such that the excess 

emissions during startup, shutdown, or 

malfunctions are not violations of the 

applicable emission limitations are 

inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs. The EPA 

believes that the inclusion of such an 

exemption in WAQSR Chapter 3, 

section 2(d) from otherwise applicable 

SIP emission limitations for violations 

during cold startup or following 

malfunction of diesel engines is a 

substantial inadequacy and renders this 

specific SIP provision impermissible. 

The EPA notes that WAQSR Chapter 

3, section 2(d) does not appear to 

comply with the CAA’s requirements for 

source category-specific rules for startup 

and shutdown as interpreted in the 

EPA’s SSM Policy. The provision 

provides that the otherwise applicable 

emission ‘‘limitation shall not apply 

during a reasonable period of warmup 

following a cold start.’’ Recent court 

decisions have made clear that 

automatic exemptions from otherwise 

applicable SIP emission limitations for 

excess emissions during periods of 

startup are not in fact permissible under 

the CAA. As discussed in section VII.A 

of this notice, states may elect to 

develop alternative emission limitations 

or other forms of enforceable control 

measures or techniques that apply 

during startup or shutdown, but 

exemptions for excess emissions during 

such periods are inconsistent with the 

fundamental requirements of the CAA. 

c. The EPA’s Proposal 

The EPA proposes 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). The EPA believes that this 

provision allows for exemptions from 

otherwise applicable SIP emission 

limitations, and that such exemptions 

are inconsistent with the fundamental 

requirements of the CAA with respect to 

emission limitations in SIPs as required 

by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, by creating 

these impermissible exemptions, the 

state has defined violations in a way 

that would interfere with effective 

enforcement by the EPA and citizens for 

excess emissions during these events as 

provided in CAA sections 113 and 304. 

For these reasons, the EPA is proposing 

to find that this provision is 

substantially inadequate to meet CAA 

requirements and thus proposing to 

issue a SIP call with respect to this 

provision. 

J. Affected States and Local Jurisdictions 

in EPA Region IX 

1. Arizona 

a. Petitioner’s Analysis 

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)).188 First, the Petitioner asserted 


srobinson on DSK4SPTVN1PROD with PROPOSALS3
12534 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

189Petition at 20. 

190See, 66 FR 48085 at 48087 (Sept. 18, 2001) 

(final rule approving R18–2–310 into Arizona SIP). 

that all affirmative defenses for excess 

emissions are inconsistent with the 

CAA and should be removed from the 

Arizona SIP. 

Additionally, quoting from the EPA’s 

statement in the SSM Policy that such 

affirmative defenses should not be 

available to ‘‘a single source or small 

group of sources [that] has the potential 

to cause an exceedance of the NAAQS 

or PSD increments,’’ the Petitioner 

contended that ‘‘sources with the power 

to cause an exceedance should be 

strictly controlled at all times, not just 

when they actually cause an 

exceedance.’’ 189 Although 

acknowledging that R18–2–310 contains 

some limitations to address this issue, 

the Petitioner argued that the limitation 

in the SIP provision is not the same as 

entirely disallowing affirmative 

defenses for these types of sources, 

which removes the ‘‘incentive’’ for such 

sources to emit at levels close to those 

that would violate a NAAQS or PSD 

increment. Accordingly, the Petitioner 

requested that the EPA require Arizona 

either to entirely remove R18–2–310(B) 

and (C) from the SIP or to revise the rule 

so that affirmative defenses are not 

available to a single source or any small 

group of sources that has the potential 

to cause an exceedance of the NAAQS. 

Second, the Petitioner asserted that 

the provision applicable to startup and 

shutdown periods (R18–2–310(C)) does 

not include an explicit requirement for 

a source seeking to establish an 

affirmative defense to prove that ‘‘the 

excess emissions were not part of a 

recurring pattern indicative of 

inadequate design, operation, or 

maintenance.’’ The Petitioner provided 

a table specifically comparing the 

provisions in R18–2–310(C) against the 

EPA’s recommended criteria in the 1999 

SSM Guidance to show that R18–2– 

310(C) does not contain a specific 

provision to address this recommended 

criterion and stated that the rule should 

be revised to require such a 

demonstration. 

b. The EPA’s Evaluation 

The EPA disagrees with the 

Petitioner’s contention that no 

affirmative defense provisions are 

permissible in SIPs under the CAA. As 

explained in more detail in section IV 

of this notice, the EPA interprets the 

CAA to allow affirmative defense 

provisions for malfunctions. So long as 

these provisions are narrowly drawn 

and consistent with the CAA, as 

recommended in the EPA’s guidance for 

affirmative defense provisions in SIPs, 

the EPA believes that states may elect to 

have affirmative defense provisions for 

malfunctions. 

With respect to the potential air 

quality impacts of a ‘‘single source or 

small group of sources,’’ the EPA 

believes that R18–2–310 satisfies the 

statutory requirements as interpreted in 

the EPA guidance. Rule R18–2–310 

specifies five types of standards or 

limitations for which affirmative 

defenses are not available under the rule 

and includes among those five types: 

standards or limitations contained in 

any PSD or NSR permit issued by the 

EPA; standards or limitations included 

in a PSD permit issued by the ADEQ to 

meet the requirements of R18–2– 

406(A)(5) (Permit Requirements for 

Sources Located in Attainment and 

Unclassifiable Areas); and standards or 

limitations contained in R18–2–715(F) 

(‘‘Standards of Performance for Existing 

Primary Copper Smelters; Site-specific 

Requirements’’) (R18–2–310(A)). Thus, 

no existing primary copper smelter 

subject to emission standards or 

limitations under R18–2–715(F) may 

seek an affirmative defense for any 

emissions in excess of those provisions, 

and likewise no major stationary source 

subject to permit conditions designed to 

protect the PSD increments in a PSD 

permit issued by ADEQ or the EPA may 

seek an affirmative defense for any 

emissions in excess of those permit 

conditions. Existing copper smelters are, 

to the EPA’s knowledge, the only 

sources under ADEQ jurisdiction that 

have the potential to cause an 

exceedance of the NAAQS, and 

requirements to protect the PSD 

increments are implemented entirely 

through PSD permits issued by states 

and the EPA. Accordingly, the clear 

exclusion of these standards and 

limitations from the affirmative defense 

provisions in R18–2–310 adequately 

addresses the EPA’s concerns with 

respect to potential violations of the 

NAAQS or PSD increments. 

With respect to other emission 

standards or limitations (i.e., those not 

specifically excluded from coverage 

under the rule), R18–2–310 requires 

each source seeking to establish an 

affirmative defense to demonstrate, 

among other things, that ‘‘[d]uring the 

period of excess emissions there were 

no exceedances of the relevant ambient 

air quality standards * * * that could 

be attributed to the emitting source’’ 

(R18–2–310(B)(7), (C)(1)(f)). The state’s 

election to provide such an affirmative 

defense contingent upon a 

demonstration by the source that there 

were no exceedances of the relevant 

ambient air quality standards during the 

relevant period that could be attributed 

to the emitting source reasonably 

assures that these affirmative defense 

provisions will not create incentives to 

emit at higher levels or interfere with 

attainment and maintenance of the 

NAAQS. As described in section VII.B 

of this notice, the EPA considers this 

type of requirement an acceptable 

alternative approach to address the 

concern of sources or small groups of 

sources that could adversely impact the 

NAAQS or PSD increments through 

excess emissions. 

Second, with respect to the 

Petitioner’s assertion that R18–2–310 

should be revised to require a 

demonstration that excess emissions 

during startup or shutdown are not part 

of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance, it is not necessary to reach 

this issue. Instead, the EPA is proposing 

to modify its interpretation of the CAA 

with respect to affirmative defenses for 

startup and shutdown to eliminate the 

recommended criteria for such 

provisions as articulated in the 1999 

SSM Guidance and to find, instead, that 

all affirmative defense provisions for 

planned startup and shutdown periods 

are not appropriate for SIP provisions 

under the CAA. As discussed in 

sections IV and VII.C of this notice, the 

EPA believes that affirmative defense 

provisions are appropriate in SIPs for 

malfunctions but not for startup and 

shutdown. 

c. The EPA’s Proposal 

The EPA proposes to deny the 

Petition with respect to the arguments 

concerning ADEQ’s affirmative defense 

provisions for malfunctions in R18–2– 

310(B). For the reasons provided above 

and in our previous approval of R18–2– 

310 into the Arizona SIP,190 the EPA 

believes that these affirmative defense 

provisions are consistent with the 

requirements of the CAA. 

With respect to the arguments 

concerning ADEQ’s affirmative defense 

provisions for startup and shutdown 

periods in R18–2–310(C), however, the 

EPA proposes to grant the Petition, 

because R18–2–310(C) is inconsistent 

with the requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k), as 

well as CAA sections 113 and 304. The 

EPA believes that a SIP provision 

establishing an affirmative defense for 

planned startup and shutdown periods 

is substantially inadequate to comply 

with CAA requirements. For these 

reasons, the EPA is proposing to issue 

a SIP call with respect to R18–2–310(C). 


srobinson on DSK4SPTVN1PROD with PROPOSALS3
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191Petition at 23. 

192Petition at 23. 

193See, 67 FR 54957 (Aug. 27, 2002) (final rule 

approving Rule 140 into Arizona SIP). 

194Petition at 23–24. 

2. Arizona: Maricopa County 

a. Petitioner’s Analysis 

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).191 These provisions in 

Maricopa County Air Quality 

Department (MCAQD) Rule 140 are 

similar to the affirmative defense 

provisions in ADEQ R18–2–310. 

First, the Petitioner asserted that the 

affirmative defense provisions in Rule 

140 are problematic for the same 

reasons identified in the Petition with 

respect to ADEQ R18–2–310. 

Specifically, the Petitioner argued that 

affirmative defenses should not be 

allowed in any SIP and, alternatively, 

that to the extent affirmative defenses 

are permissible, the provisions in Rule 

140 addressing exceedances of the 

ambient standards are ‘‘inappropriately 

permissive and do not comply with EPA 

guidance.’’ 192 Accordingly, the 

Petitioner requested that the EPA 

require Arizona and/or MCAQD either 

to entirely remove these provisions from 

the SIP or to revise them so that they are 

not available to a single source or small 

group of sources that has the potential 

to cause a NAAQS exceedance. Second, 

the Petitioner asserted that the 

provisions for startup and shutdown in 

Rule 140 do not include an explicit 

requirement for a source seeking to 

establish an affirmative defense to prove 

that ‘‘the excess emissions in question 

were not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance.’’ The 

Petitioner argued that Rule 140 should 

be revised to require such a 

demonstration. 

b. The EPA’s Evaluation 

First, with respect to the potential air 

quality impacts of a ‘‘single source or 

small group of sources,’’ the EPA 

believes that MCAQD Rule 140 satisfies 

the statutory requirements as 

interpreted in the EPA’s guidance. Rule 

140 specifies four types of standards or 

limitations for which affirmative 

defenses are not available under the 

rule, including standards and 

limitations contained in any Prevention 

of Significant Deterioration (PSD) or 

New Source Review (NSR) permit 

issued by the EPA, and standards and 

limitations included in a PSD permit 

issued by MCAQD to meet the 

requirements of subsection 308.1(e) of 

Rule 240 (Permit Requirements For New 

Major Sources And Major Modifications 

To Existing Major Sources) (Rule 140, 

sections 103.3, 103.4). Thus, no major 

stationary source subject to permit 

conditions designed to protect the PSD 

increments in a PSD permit issued by 

MCAQD or the EPA may seek an 

affirmative defense for any emissions in 

excess of those permit conditions. These 

provisions adequately address the EPA’s 

concerns regarding potential violations 

of the PSD increments. 

Rule 140 also requires each source 

seeking to establish an affirmative 

defense to demonstrate, among other 

things, that ‘‘[d]uring the period of 

excess emissions there were no 

exceedances of the relevant ambient air 

quality standards * * * that could be 

attributed to the emitting source’’ (Rule 

140, sections 401.7, 402.1(f)). The state’s 

election to provide such an affirmative 

defense contingent upon a 

demonstration by the source that there 

were no exceedances of the relevant 

ambient air quality standards during the 

relevant period that could be attributed 

to the emitting source reasonably 

assures that these affirmative defenses 

provisions will not create incentives to 

emit at higher levels or interfere with 

attainment and maintenance of the 

NAAQS. As described in section VII.B 

of this notice, the EPA considers this 

type of requirement an acceptable 

alternative approach to address the 

concern of sources or small groups of 

sources that could adversely impact the 

NAAQS or PSD increments through 

excess emissions. 

Second, with respect to the 

Petitioner’s assertion that MCAQD Rule 

140 should be revised to require a 

demonstration that excess emissions 

during startup or shutdown are not part 

of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance, it is not necessary to reach 

this issue. Instead, the EPA is proposing 

to modify its interpretation of the CAA 

with respect to affirmative defenses for 

startup and shutdown to eliminate the 

recommended criteria for such 

provisions as articulated in the 1999 

SSM Guidance and to find, instead, that 

all affirmative defense provisions for 

planned startup and shutdown periods 

are not appropriate for SIP provisions 

under the CAA. As discussed in 

sections IV and VII.C of this notice, the 

EPA believes that affirmative defense 

provisions are appropriate in SIPs for 

malfunctions but not for startup and 

shutdown. 

c. The EPA’s Proposal 

The EPA proposes to deny the 

Petition with respect to the arguments 

concerning MCAQD’s affirmative 

defense provisions for malfunctions in 

Rule 140, section 401. For the reasons 

provided above and in our previous 

approval of Rule 140 into the Arizona 

SIP,193 the EPA believes that these 

affirmative defense provisions are 

consistent with the requirements of the 

CAA. 

With respect to the arguments 

concerning ADEQ’s affirmative defense 

provisions for startup and shutdown 

periods in Rule 140, section 402, 

however, the EPA proposes to grant the 

Petition, because it is inconsistent with 

the requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k), as 

well as CAA sections 113 and 304. The 

EPA believes that a SIP provision 

establishing an affirmative defense for 

planned startup and shutdown periods 

is substantially inadequate to comply 

with CAA requirements. For these 

reasons, the EPA is proposing to issue 

a SIP call with respect to Maricopa 

County Air Pollution Control Regulation 

3, Rule 140, § 402. 

3. Arizona: Pima County 

a. Petitioner’s Analysis 

The Petitioner objected to a provision 

in the Pima County Department of 

Environmental Quality’s (PCDEQ) Rule 

706 that pertains to enforcement 

discretion.194 Quoting from paragraph 

(D) of Rule 706, which provides that 

‘‘[t]he Control Officer may defer 

prosecution of a Notice of Violation 

issued for an exceedance of a control 

standard if * * *’’ certain conditions 

are met, the Petitioner argued that 

ambiguity in this provision could be 

construed to preclude enforcement by 

the EPA or citizens. The Petitioner 

requested that the EPA require the 

PCDEQ and/or Arizona to revise this 

provision to make clear that a decision 

by the Pima County Control Officer not 

to enforce under the rule would in no 

way affect enforcement by the EPA or 

citizens. 

b. The EPA’s Evaluation 

The EPA disagrees with the 

Petitioner’s assertion that Rule 706 

creates ambiguity that could be 

construed to preclude enforcement by 

the EPA or through a citizen suit. 

Paragraph (D) of Rule 706 states that 

‘‘[t]he control officer may defer 

prosecution of a Notice of Violation 


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195Petition at 18–20. 196Petition at 33. 

issued for an exceedance of a control 

standard if’’ four specific conditions are 

met (PCDEQ Rule 706, paragraph (D), 

emphasis added). Rule 706 does not 

address the EPA or citizen enforcement 

in any way and on its face does nothing 

to preclude enforcement by the EPA or 

through a citizen suit. Even with respect 

to the PCDEQ’s authorities, the rule 

authorizes but does not require the 

Control Officer to defer prosecution 

where the identified criteria are met. 

c. The EPA’s Proposal 

The EPA proposes to deny the 

Petition with respect to PCDEQ Rule 

706. The EPA believes that the 

provision regarding enforcement in 

paragraph (D) of this rule clearly applies 

only to the PCDEQ Control Officer and 

could not reasonably be read by a court 

to foreclose enforcement by the EPA or 

through a citizen suit where the PCDEQ 

Control Officer elects to exercise 

enforcement discretion. The EPA 

solicits comment on this issue, in 

particular from the State of Arizona and 

from the PCDEQ, to assure that there is 

no misunderstanding with respect to the 

correct interpretation of Rule 706. 

K. Affected States in EPA Region X 

1. Alaska 

a. Petitioner’s Analysis 

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).195 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 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 

further argued that it is unclear whether 

the provision could be interpreted to bar 

enforcement actions brought by the EPA 

or citizens, because it is drafted as if the 

state were the sole enforcement 

authority. Finally, the Petitioner pointed 

out, the provision is worded as if it were 

an affirmative defense, but it uses 

criteria for enforcement discretion. 

b. The EPA’s Evaluation 

The EPA interprets Alaska Admin. 

Code tit. 18 § 50.240 as providing an 

affirmative defense under which excess 

emissions that occur during certain SSM 

events may be ‘‘excused’’ if the requisite 

showing is made by the source. This 

provision is substantially inadequate for 

three reasons. First, provisions that 

allow a state official’s decision to bar 

EPA or citizen enforcement are 

impermissible under the CAA. Although 

Alaska Admin. Code tit. 18 § 50.240 

states that it ‘‘does not limit the 

department’s power to enjoin the 

emission nor require corrective action’’ 

(emphasis added), it also states that 

‘‘[e]xcess emissions determined to be 

unavoidable under this section will be 

excused and are not subject to penalty.’’ 

The net effect of this language appears 

to bar the EPA and the public from 

seeking injunctive relief. Moreover, the 

provision is ambiguous as to whether 

the EPA or the public could pursue an 

action for civil penalties if they 

disagreed with the state official’s 

determination that excess emissions 

were unavoidable. 

Second, as explained more fully in 

sections IV.B and VII.C of this notice, 

the EPA believes that affirmative 

defense provisions that apply to startup, 

shutdown, or maintenance events are 

inconsistent with the requirements of 

the CAA. Consequently, Alaska Admin. 

Code tit. 18 § 50.240, which applies to 

excess emissions that occur during 

startup, shutdown, and scheduled 

maintenance, is impermissible for this 

reason as well. 

Finally, while the EPA continues to 

believe that affirmative defense 

provisions applying to malfunctions can 

be consistent with the CAA, as long as 

the criteria set forth in the SSM Policy 

are carefully adhered to (as explained in 

more detail in sections IV.B and VII.B of 

this notice), the criteria in Alaska 

Admin. Code tit. 18 § 50.240 are not 

sufficiently similar to those 

recommended in the EPA’s SSM Policy 

to assure that the affirmative defense is 

available only in appropriately narrow 

circumstances. The EPA acknowledges 

that the SSM Policy is only guidance 

concerning what types of SIP provisions 

could be consistent with the 

requirements of the CAA. Nonetheless, 

through this rulemaking, the EPA is 

proposing to determine that Alaska 

Admin. Code tit. 18 § 50.240 does not 

include criteria that are sufficiently 

robust to qualify as an acceptable 

affirmative defense provision for 

malfunctions (i.e., upsets). For example, 

the defense available in Alaska Admin. 

Code tit. 18 § 50.240 is not limited to 

excess emissions caused by sudden, 

unavoidable, breakdown of technology 

beyond the control of the owner or 

operator. Similarly, the provision 

contains neither a statement that the 

defense does not apply in situations 

where a single source or small group of 

sources has the potential to cause an 

exceedance of the NAAQS or PSD 

increments nor a requirement that 

sources make an after-the-fact showing 

that no such exceedance occurred. 

Accordingly, the EPA agrees with the 

Petitioner’s contention that the 

provision is substantially inadequate to 

satisfy the requirements of the CAA. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Alaska Admin. 

Code tit. 18 § 50.240. The provision 

applies to startup, shutdown, and 

maintenance events, contrary to the 

EPA’s interpretation of the CAA to 

allow such affirmative defenses only for 

malfunctions. Additionally, the section 

of Alaska Admin. Code tit. 18 § 50.240 

applying to ‘‘upsets’’ is inadequate 

because the criteria referenced are not 

sufficiently similar to those 

recommended in the EPA’s SSM Policy 

for affirmative defense provisions 

applicable to malfunctions. Thus, the 

provision is inconsistent with the 

requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). 

Moreover, the provision appears to bar 

the EPA and citizens from seeking 

penalties and injunctive relief. As a 

result, Alaska Admin. Code tit. 18 

§ 50.240 is inconsistent with the 

fundamental requirements of CAA 

sections 113 and 304. For these reasons, 

the EPA is proposing to find that the 

provision is substantially inadequate to 

meet CAA requirements and proposes to 

issue a SIP call with respect to the 

provision. 

2. Idaho 

a. Petitioner’s Analysis 

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).196

The provision provides that ‘‘[t]he 

Department shall consider the 

sufficiency of the information submitted 

and the following criteria to determine 

if an enforcement action to impose 

penalties is warranted * * *.’’ The 

Petitioner argued that this provision 

could be interpreted to give the 

Department authority to decide that 


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197Petition at 63. 198 76 FR 80725 at 80747. 199Petition at 71–72. 

enforcement is not warranted by 

anyone, thereby precluding action by 

the EPA and citizens for civil penalties 

or injunctive relief. 

b. The EPA’s Evaluation 

The EPA’s SSM Policy interprets the 

CAA to allow states to elect to have 

appropriately drawn SIP provisions 

addressing the exercise of enforcement 

discretion by state personnel. As the 

Petitioner recognized, Idaho Admin. 

Code r. 58.01.01.131 appears to be a 

statement of enforcement discretion, 

and it delineates factors that will be 

considered by the Department in 

determining whether to pursue 

enforcement for violations due to excess 

emissions. Subsection 101.03 of the 

provision clearly states that ‘‘[a]ny 

decision by the Department * * * shall 

not excuse the owner or operator from 

compliance with the relevant emission 

standard.’’ There is no language 

suggesting that the Department’s 

determination to forgo state enforcement 

against a source would in any way 

preclude the EPA or the public from 

demonstrating that violations occurred 

or from taking enforcement action. 

Consequently, the EPA believes the 

provision is consistent with the 

requirements of the CAA. 

c. The EPA’s Proposal 

The EPA proposes to deny the 

Petition with respect to Idaho Admin. 

Code r. 58.01.01.131. The EPA 

interprets this provision to allow both 

the EPA and the public to seek civil 

penalties or injunctive relief, regardless 

of how the state chooses to exercise its 

enforcement discretion. The EPA 

solicits comments on this issue, in 

particular from the State of Idaho, to 

assure that there is no misunderstanding 

with respect to the correct interpretation 

of Idaho Admin. Code r. 58.01.01.131. 

3. Oregon 

a. Petitioner’s Analysis 

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).197 The provision 

provides that ‘‘[i]n determining if a 

period of excess emissions is avoidable, 

and whether enforcement action is 

warranted, the Department, based upon 

information submitted by the owner and 

or operator, shall consider whether the 

following criteria are met * * *.’’ The 

Petitioner argued that this provision 

could be interpreted to give the 

Department authority to decide that 

enforcement is not warranted by 

anyone, thereby precluding action by 

the EPA and citizens for civil penalties 

or injunctive relief. 

b. The EPA’s Evaluation 

After the Petition was filed, the 

provision of the Oregon SIP cited by the 

Petitioner was recodified and revised by 

the state and was submitted to the EPA 

as part of a SIP revision. The EPA 

approved the SIP revision on December 

27, 2011.198 The provision has been 

recodified and revised at Or. Admin. R. 

340–214–0350. The provision as 

recodified provides that ‘‘[i]n 

determining whether to take 

enforcement action for excess 

emissions, the Department considers, 

based upon information submitted by 

the owner or operator,’’ a list of factors. 

The EPA’s SSM Policy interprets the 

CAA to allow states to elect to have SIP 

provisions that pertain to the exercise of 

enforcement discretion by state 

personnel. As revised by Oregon and 

approved by the EPA into the SIP, Or. 

Admin. R. 340–214–0350 is plainly a 

statement of enforcement discretion, 

and it delineates factors that will be 

considered by the Department in 

determining whether to pursue state 

enforcement for violations of the 

applicable SIP emission limitations due 

to excess emissions. There is no 

language in this provision suggesting 

that the Department’s determination to 

forgo enforcement against a source 

would in any way preclude the EPA or 

the public from demonstrating that 

violations occurred and taking 

enforcement action. Consequently, the 

EPA believes the current SIP provision 

is consistent with the requirements of 

the CAA. 

c. The EPA’s Proposal 

The EPA proposes to deny the 

Petition with respect to Or. Admin. R. 

340–028–1450. This provision has since 

been recodified and approved by the 

EPA at Or. Admin. R. 340–214–0350. 

The EPA interprets the recodified 

provision to allow both the EPA and the 

public to seek civil penalties or 

injunctive relief, regardless of how the 

state chooses to exercise its enforcement 

discretion. The EPA solicits comments 

on this issue, in particular from the 

State of Oregon, to assure that there is 

no misunderstanding with respect to the 

correct interpretation of Or. Admin. R. 

340–214–0350. 

4. Washington 

a. Petitioner’s Analysis 

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).199

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 

further argued that it is unclear whether 

the provision could be interpreted to bar 

enforcement actions brought by the EPA 

or citizens, because it is drafted as if the 

state were the sole enforcement 

authority. Finally, the Petitioner pointed 

out, the provision is worded as if it were 

an affirmative defense, but it uses 

criteria for enforcement discretion. 

b. The EPA’s Evaluation 

The EPA interprets Wash. Admin. 

Code § 173–400–107 as an affirmative 

defense under which excess emissions 

that occur during certain SSM events 

can be ‘‘excused’’ if the requisite 

showing is made by the source. This 

provision is substantially inadequate for 

four reasons. First, provisions that allow 

a state official’s decision to bar the EPA 

or citizen enforcement are 

impermissible under the CAA. The 

Wash. Admin. Code § 173–400–107 

provides that ‘‘[t]he owner or operator of 

a source shall have the burden of 

proving to Ecology or the authority or 

the decision-maker in an enforcement 

action that excess emissions were 

unavoidable.’’ This language makes 

clear that the state’s determination is 

not binding on the EPA or the public, 

because it refers to other authorities and 

decision-makers besides the state 

agency. However, the provision also 

states that ‘‘[e]xcess emissions 

determined to be unavoidable * * * 

shall be excused and not subject to 

penalty.’’ This language could be 

interpreted to preclude those excess 

emissions deemed ‘‘unavoidable’’ from 

being considered violations of the 

applicable SIP emission limitations, and 

thus it could preclude enforcement by 

the EPA or through a citizen suit. 

Second, it is unclear whether the 

affirmative defense applies only to 


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12538 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

200Small entities include small businesses, small 

organizations, and small governmental 

jurisdictions. For purposes of assessing the impacts 

of this notice on small entities, small entity is 

defined as: (1) A small business that is a small 

industrial entity as defined in the U.S. Small 

Business Administration (SBA) size standards (see 

13 CFR 121.201); (2) a small governmental 

jurisdiction that is a government of a city, county, 

town, school district, or special district with a 

population of less than 50,000; or (3) a small 

organization that is any not-for-profit enterprise that 

is independently owned and operated and is not 

dominant in its field. 

actions for monetary penalties or could 

also be used to bar actions seeking 

injunctive relief. Although the EPA 

believes that narrowly drawn 

affirmative defenses are permitted under 

the CAA for malfunction events, as 

discussed in sections IV.B and VII.B of 

this notice, the EPA’s interpretation is 

that such affirmative defenses can only 

shield the source from monetary 

penalties and cannot be a bar to 

injunctive relief. 

Third, as explained more fully in 

sections IV.B and VII.C of this notice, 

the EPA believes that affirmative 

defense provisions that apply to startup, 

shutdown, or maintenance events are 

inconsistent with the requirements of 

the CAA on their face. Consequently, 

Wash. Admin. Code § 173–400–107, 

which applies to excess emissions that 

occur during startup, shutdown, and 

scheduled maintenance, is 

impermissible for this reason as well. 

Finally, while the EPA continues to 

believe that affirmative defense 

provisions applying to malfunctions can 

be consistent with the CAA as long as 

the criteria set forth in the SSM Policy 

are carefully adhered to, as discussed in 

sections IV.B and VII.B of this notice, 

the criteria in Wash. Admin. Code 

§ 173–400–107 are not sufficiently 

similar to those recommended in the 

EPA’s SSM Policy to assure that the 

affirmative defense is available only in 

appropriately narrow circumstances. 

The EPA acknowledges that the SSM 

Policy is only guidance concerning what 

types of SIP provisions could be 

consistent with the requirements of the 

CAA. Nonetheless, through this 

rulemaking, the EPA is proposing to 

determine that Wash. Admin. Code 

§ 173–400–107 does not include criteria 

that are sufficiently robust to qualify as 

an acceptable affirmative defense 

provision for malfunctions (i.e., 

‘‘upsets’’). For example, the defense 

available in Wash. Admin. Code § 173– 

400–107 is not limited to excess 

emissions caused by sudden, 

unavoidable, breakdown of technology 

beyond the control of the owner or 

operator. Similarly, the provision 

contains neither a statement that the 

defense does not apply in situations 

where a single source or small group of 

sources has the potential to cause an 

exceedance of the NAAQS or PSD 

increments nor a requirement that 

sources make an after-the-fact showing 

that no such exceedance occurred. As a 

result, the EPA believes that the 

provision is substantially inadequate to 

satisfy the requirements of the CAA. 

c. The EPA’s Proposal 

The EPA proposes to grant the 

Petition with respect to Wash. Admin. 

Code § 173–400–107. The provision 

applies to startup, shutdown, and 

maintenance events, contrary to the 

EPA’s interpretation of the CAA to 

allow such affirmative defenses only for 

malfunctions. Furthermore, the section 

of Wash. Admin. Code § 173–400–107 

applying to ‘‘upsets’’ is inadequate 

because the criteria referenced are not 

sufficiently similar to those 

recommended in the EPA’s SSM Policy 

for affirmative defenses for excess 

emissions due to malfunctions. Finally, 

the provision is unclear as to whether 

the EPA and the public could still seek 

injunctive relief if a state official made 

a determination that excess emissions 

were unavoidable. As a result, the EPA 

believes that Wash. Admin. Code § 173– 

400–107 is inconsistent with the 

fundamental requirements of CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For these reasons, the EPA is 

proposing to find that the provision is 

substantially inadequate to meet CAA 

requirements and proposes to issue a 

SIP call with respect to the provision. 

X. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal or policy issues. 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

EPA’s proposed action in response to 

the Petition merely reiterates the EPA’s 

interpretation of the statutory 

requirements of the CAA and does not 

require states to collect any additional 

information. To the extent that the EPA 

proposes to grant the Petition and thus 

proposes to issue a SIP call to a state 

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

only proposing an action that requires 

the state to revise its SIP to comply with 

existing requirements of the CAA. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities.200

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Courts have interpreted the RFA to 

require a regulatory flexibility analysis 

only when small entities will be subject 

to the requirements of the rule. See, e.g., 

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

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

FERC, 773 F.2d 327 (D.C. Cir. 1985). 

This proposed rule will not impose any 

requirements on small entities. Instead, 

the proposed action merely reiterates 

the EPA’s interpretation of the statutory 

requirements of the CAA. To the extent 

that the EPA proposes to grant the 

Petition and thus proposes to issue a SIP 

call to a state under CAA section 

110(k)(5), the EPA is only proposing an 

action that requires the state to revise its 

SIP to comply with existing 

requirements of the CAA. The EPA’s 

action, therefore, would leave to states 

the choice of how to revise the SIP 

provision in question to make it 

consistent with CAA requirements and 

determining, among other things, which 

of the several lawful approaches to the 

treatment of excess emissions during 

SSM events will be applied to particular 

sources. We continue to be interested in 

the potential impacts of the proposed 

rule on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This rule does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

The action may impose a duty on 


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201 ‘‘EPA’s Action Development Process-Guidance 

on Executive Order 13132: Federalism,’’ dated 

November 2008. 

certain state governments to meet their 

existing obligations to revise their SIPs 

to comply with CAA requirements. The 

direct costs of this action on states 

would be those associated with 

preparation and submission of a SIP 

revision by those states for which the 

EPA issues a SIP call. Examples of such 

costs could include development of a 

state rule, conducting notice and public 

hearing, and other costs incurred in 

connection with a SIP submission. 

These aggregate costs would be far less 

than the $100-million threshold in any 

one year. Thus, this rule is not subject 

to the requirements of sections 202 or 

205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

regulatory requirements of this action 

would apply to the states for which the 

EPA issues a SIP call. To the extent that 

such states allow local air districts or 

planning organizations to implement 

portions of the state’s obligation under 

the CAA, the regulatory requirements of 

this action would not significantly or 

uniquely affect small governments 

because those governments have already 

undertaken the obligation to comply 

with the CAA. 

E. Executive Order 13132—Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 because it will 

simply maintain the relationship and 

the distribution of power between the 

EPA and the states as established by the 

CAA. The proposed SIP calls are 

required by the CAA because the EPA 

is proposing to find that the current SIPs 

of the affected states are substantially 

inadequate to meet fundamental CAA 

requirements. In addition, the effects on 

the states will not be substantial because 

where a SIP call is finalized for a state, 

the SIP call will require the affected 

state to submit only those revisions 

necessary to address the SIP 

deficiencies and applicable CAA 

requirements. While this action may 

impose direct effects on the states, the 

expenditures would not be substantial 

because they would be far less than $25 

million in the aggregate in any one 

year.201 Thus, Executive Order 13132 

does not apply to this action. 

In the spirit of Executive Order 13132, 

and consistent with the EPA policy to 

promote communications between the 

EPA and state and local governments, 

the EPA specifically solicits comment 

on this proposed rule from state and 

local officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). In this action, the EPA is not 

addressing any tribal implementation 

plans. This action is limited to states. 

Thus, Executive Order 13175 does not 

apply to this action. However, the EPA 

invites comment on this proposed 

action from tribal officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it merely prescribes 

the EPA’s action for states regarding 

their obligations for SIPs under the 

CAA. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355(May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action merely prescribes the EPA’s 

action for states regarding their 

obligations for SIPs under the CAA. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs the 

EPA to provide Congress, through OMB, 

explanations when the EPA decides not 

to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

the EPA is not considering the use of 

any voluntary consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

Feb. 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

The EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. The 

rule is intended to ensure that all 

communities and populations across the 

affected states, including minority, lowincome and indigenous populations 

overburdened by pollution, receive the 

full human health and environmental 

protection provided by the CAA. This 

proposed action concerns states’ 

obligations regarding the treatment they 

give, in rules included in their SIPs 

under the CAA, to excess emissions 

during startup, shutdown, and 

malfunctions. This proposed action 

would require 36 states to bring their 

treatment of these emissions into line 

with CAA requirements, which would 

lead to sources’ having greater 

incentives to control emissions during 

such events. 

K. Determination Under Section 307(d) 

Pursuant to CAA section 307(d)(1)(U), 

the Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(U) 

provides that the provisions of section 


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

U.S. App. LEXIS 5654 (5th Cir. 2011) (finding SIP 

call to 13 states to be of nationwide scope and effect 

and thus transferring the case to the U.S. Court of 

Appeals for the D.C. Circuit in accordance with 

CAA section 307(b)(1)). 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

L. Judicial Review 

Section 307(b)(1) of the CAA indicates 

which Federal Courts of Appeal have 

venue for petitions of review of final 

agency actions by the EPA under the 

CAA. This section provides, in part, that 

petitions for review must be filed in the 

Court of Appeals for the District of 

Columbia Circuit (i) when the agency 

action consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator,’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule responding to the Petition is 

‘‘nationally applicable’’ within the 

meaning of section 307(b)(1). First, the 

rulemaking addresses a Petition that 

raises issues that are applicable in all 

states and territories in the U.S. For 

example, the Petitioner requested that 

the EPA revise its SSM Policy with 

respect to whether affirmative defense 

provisions in SIPs are consistent with 

CAA requirements. The EPA’s response 

is relevant for all states nationwide. 

Second, the rulemaking will address a 

Petition that raises issues relevant to 

specific existing SIP provisions in 39 

states across the U.S. that are located in 

each of the 10 EPA Regions, 10 different 

federal circuits, and multiple time 

zones. Third, the rulemaking addresses 

a common core of knowledge and 

analysis involved in formulating the 

decision and a common interpretation 

of the requirements of the CAA being 

applied to SIPs in states across the 

country. Fourth, the rulemaking, by 

addressing issues relevant to 

appropriate SIP provisions in one state, 

may have precedential impacts upon the 

SIPs of other states nationwide. Courts 

have found similar rulemaking actions 

to be of nationwide scope and effect.202

This determination is appropriate 

because in the 1977 CAA Amendments 

that revised CAA section 307(b)(1), 

Congress noted that the Administrator’s 

determination that an action is of 

‘‘nationwide scope or effect’’ would be 

appropriate for any action that has 

‘‘scope or effect beyond a single judicial 

circuit.’’ H.R. Rep. No. 95–294 at 323— 

324, reprinted in 1977 U.S.C.C.A.N. 

1402–03. Here, the scope and effect of 

this rulemaking extends to numerous 

judicial circuits because the action on 

the petition extends to states throughout 

the country. In these circumstances, 

section 307(b)(1) and its legislative 

history authorize the Administrator to 

find the rule to be of ‘‘nationwide scope 

or effect’’ and thus to indicate that 

venue for challenges to be in the D.C. 

Circuit. Thus, any petitions for review 

must be filed in the Court of Appeals for 

the District of Columbia Circuit. 

Accordingly, the EPA is proposing to 

determine that this will be a rulemaking 

of nationwide scope or effect. 

In addition, pursuant to CAA section 

307(d)(1)(V), the EPA is determining 

that this rulemaking action will be 

subject to the requirements of section 

307(d). 

XI. Statutory Authority 

The statutory authority for this action 

is provided by CAA section 101 et seq. 

(42 U.S.C. 7401 et seq.). 

List of Subjects in 40 CFR Part 52 

Affirmative defense, Air pollution 

control, Carbon dioxide, Carbon dioxide 

equivalents, Carbon monoxide, 

Environmental protection, Excess 

emissions, Greenhouse gases, 

Hydrofluorocarbons, Intergovernmental 

relations, Lead, Methane, Nitrogen 

dioxide, Nitrous oxide, Ozone, 

Particulate matter, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Startup, shutdown, and 

malfunction, State implementation plan, 

Sulfur hexafluoride, Sulfur oxides, 

Volatile organic compounds. 

Dated: February 12, 2013. 

Gina McCarthy, 

Assistant Administrator. 

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

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