UNITED STATES E:NVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

Charles H. Knauss 

Shannon S. Broome 

Sandra P. Franco 

Bingham McCutchen LLP 

2020 K Street, NW 

Washington D.C. 20006 

Leslie A. Hulse 

Assistant General Counsel 

American Chemistry Council 

1300 Wilson Boulevard 

Arlington, VA 22209 

Gregory Scott 

JUL 2 2 2009 

National Petrochemical & Refiners Association 

1667 K Street, NW, Suite 700 

Washington, D.C. 20006 

Jan Poling 

American Forest & Paper Association 

1111 19111 Street, NW, Suite 800 

Washington, D.C. 20036 

HarryM. Ng 

John P. Wagner 

OFFICE OF 

ENFORCEMENT AND 

COMPLIANCE ASSURANCE 

American Petroleum Institute 

1220 L Street, NW 

Washington, D.C. 20005 

Thomas J. Graves 

Alison A Keane 

National Paint & Coatings Association, Inc. 

1500 Rhode Island Avenue, NW 

Washington, D.C. 20005 

William H. Lewis, Jr. 

Morgan, Lewis & Bockius, LLP 

1111 Pennsylvania A venue, NW 

Washington, D.C. 20004 

Susan T. Conti 

Alliance of Automobile Manufacturers 

1401 Eye Street, NW, 9111 Floor 

Washington, D.C. 20005 

Re: Vacatur of Startup, Shutdown, and Malfunction (SSM) Exemption (40 C.F.R. §§ 

63.6(f)(l) and 63.6(h)(l)) 

Dear Counsel: 

In Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the United States Court of 

Appeals for the District of Columbia Circuit vacated two provisions in EPA's Section 112 

regulations governing the emissions of hazardous air poiJutants during periods of startup, 

shutdown, and malfunction ("SSM"). Specifically, the Court vacated 40 C.F.R. §§ 63.6(f)(l) 

and 63.6(h)(1 ), that are part of a regulation, commonly referred to as the "General Provisions 

Rule," that EPA promulgated under Section 112 of the Clean Air Act. When incorporated into 

Clean Air Act Section 112(d) regulatrions for specific source categories, these two provisions 

exempt sources from the requirement: to comply with the otherwise applicable Section 112( d) 

Internet Address (URL) • http://www.apa.gov 

Racyclad!Recyc lable • Printed with Vegetable Oil Based Inks on 100% Postconsumer. Process Chlorine Free Recycled Paper 
emission standard during periods of SSM. Representatives of various industries subject to 

Section 112(d) rules have raised conc:ems to EPA about the impact of the Sierra Club decision 

and the potential enforcement exposUtre a source faces if it fails to comply with a Section 112(d) 

emission standard during an SSM event. The purpose of this letter is to address those concerns. 

Until the Court issues the mandate in Sierra Club v. EPA, 40 C.F.R. §§ 63.6(£)(1) and 

(h)(l) remain in effect Once the mandate issues, 40 C.F.R. §§ 63.6(t)(l) and (h)( I) will become 

null and void. The vacatur will imrne:diately and directly affect only the subset of Section 11 2( d) 

rules that incorporate 40 C.F.R. §§ 63·.6(f)(l) and (h)( I) by reference, and that contain no other 

regulatory text exempting or excusing compliance during SSM events. Table 1, attached, 

contains a list of the source category mles that EPA believes will be immediately affected once 

the mandate issues in Sierra Club, as these rules do nothing more than incorporate 40 C.F.R. §§ 

63.6(1)(1) and (hXl) by reference and contain no other regulatory text exempting or excusing 

compliance during SSM events. EPA's initial analysis of the Section 112(d) source category 

rules indicates that the majority of the: rules include specific regulatory text that exempts or 

excuses compliance during SSM evemts, and such regulatory text is in addition to, or in lieu of, a 

cross-reference to 40 C.F.R. §§ 63.6(fXI) and (h)(lV See Table 2 (attached) (identifies the 

source category rules that EPA believ.es will not be impacted when the mandate issues in Sierra 

Club). The vacatur does not have a direct impact on such source category-specific SSM 

provisions because those provisions were not challenged and were not before the court in Sierra 

1 There is a great deal of variation in the specific regulatory text used in such rules to exempt or 

otherwise excuse a source from compliance with the applicable Section 112(d) standard during 

periods of SSM. The following examples are illustrative ofthe differentfonnulations that EPA 

has identified in its Section 112(d) source category rules, but are by no means exclusive. See, 

e.g., 40 C.F.R. § 63.762(a) ("The provisions set forth in this subpart shall apply at all times 

except during startups or shutdowns, during malfunctions .. ... "); 40 C.F.R. § 63.654(g)(6) 

("periods of excess emissions shall be identified in the Periodic Reports and shall be used to 

detennine compliance with the emission standards . . . . (iii) Periods of startup and shutdown 

that meet the definition of§ 63.641 , and malfunction that meet the definition in§ 63.2 and 

periods of perfonnance testing and monitoring system calibration shall not be considered periods 

of excess emissions .. . ); 40 C.F.R. § 63.1570 (a), (b) and (g) (contains a cross-reference to 

63.6(f)(l) and (hXl) in 63.1570(a) and (b), respectively, but also has regulatory text in 

63.l570(g) excusing deviations that o' cur during SSM. Section 63.1570(g) provides " 

Consistent with §§ 63.6(e) and 63.7(e)(l), deviations that occur during a period of startup, 

shutdown, or malfunction are not violations if you demonstrate to the Administrator's 

satisfaction that you were operating in accordance with § 63.6(e)( I)."); 40 C.F.R. § 

63.695(e)(6)(i) ("An excursion is not a violation nor does it count toward the number of excused 

excursions allowed under paragraph (e)(6)(ii) of this section when the excursion occurs during 

any one of the following periods: (A) During a period of startup. shutdown. or malfunction 

when the affected facility is operated during such period in accordance with§ 63.6(e)(l)"). 

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Sierra Club. EPA recognizes, however, that the legality of such source category-specific SSM 

provisions may now be called into question, and EPA intends to evaluate each of them in light of 

the court's decision. The tables attached to this letter are based on EPA's initial analysis and 

are, therefore, subject to change.

2 

Even if a source is subj ect to a Section 112( d) standard that does no more than 

incorporate by reference 40 C.F.R. §§ 63.6(f)(l) and (h)( I) and contains no other regulatory text 

exempting or excusing compliance during SSM events (see Table 1), the impact of the vacatur 

will vary depending on the source cat·egory, and may not be immediate for sources in many 

categories. EPA's initial evaluation of the subset of Section 112(d) rules that do nothing more 

than cross-reference 40 C.F.R. §§ 63.16(f)(l) and (h)(l) indicates that most of these rules should 

not present compliance issues for sources during SSM events. There are various reasons for this. 

For example, certain Section 11 2( d) standards can be achieved despite SSM events because the 

performance of poll uti on control equipment is not affected by SSM events_ Other Section 

11 2( d) standards are expressed as an average over a relatively long period of time (e.g., a yearly 

rolling average) and expected startup and shutdown events and any malfunctions over that 

period are not likely to result in an exceedance of the standard. Further, certain Section 112(d) 

standards impose only work practice requirements with which a source should be able to comply 

during SSM events. 

Compliance with Section 112(d) standards during SSM periods should also be less 

problematic for those sources that are operating in compliance with 40 C.P.R. § 63.6(e)(l )(I), 

which requires sources to minimize e~n ssions at all times, including periods of SSM. consistent 

with safety and good air pollution control practices. Sources subject to Section J 12( d) standards 

that only cross-reference the exemption in 40 C.F.R. §§ 63.6(f)(l) and (h)( I) of the General 

Provisions Rule should, in many instances, be able to minimize their exposure to violations of 

the applicable Section 112(d) standards by adjusting their operating practices or by adding 

emission controls or measures to reduce or eliminate excess emissions during SSM periods. 

EPA recognizes, however, that some sources subject to Section ll2(d) standards that 

onJy cross-reference the exemption in 40 C.F.R. §§ 63.6(t)(1) and (h)(l) ofthe General 

Provisions Rule may be unable to comply with such standards during SSM events despite their 

best efforts, including adherence to 40 C.F.R § 63.6(e)(l)(i). For a source that fails to comply 

with the applicable Section 112( d) standards during SSM events, EPA will determine an 

appropriate response based on, among other things, the good faith efforts of the source to 

minimize emissions during SSM periods, including preventative and corrective actions, as well 

as root cause analyses to ascertain and rectify excess emissions. and whether the source has 

developed and implemented an SSM plan to minimize such emissions. See 40 C.F.R. § 

63.6(e)(3)(i). We intend to closely scrutinize any claim that a Section 1 'l2(d) standard cannot be 

2 There are some Section 1 J 2( d) source category rules that do not appear in either table because 

the rules do not contain any SSM exemption. The Sierra Club decision has no impact on such 

rules. 

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met during a malfunction to determine whether the event was in fact ''sudden, infrequent, not 

reasonably preventable" and was not instead "caused in part by poor maintenance or careless 

operation." 40 C.F.R. § 63.2 (definition of malfunction). 

We encourage sources that anticipate compliance difficulties to contact EPA or the 

appropriate state regulatory authority. By engaging with regulators early, sources can identify 

their compliance concems and engage in a meaningful dialogue with EPA or the appropriate state 

regulatory authority about the individual circumstances presented by a particular facility, 

including any information on the natme and extent of the excess emissions that occurred or are 

expected to occur during SSM events. In appropriate cases, EPA or the state may be able to take 

action to resolve a source's compliam~e concerns. Such actions may include, for example, 

issuance of an Administrative Order on Consent that includes a schedule for the source to 

achieve compliance during SSM events. 

EPA is currently evaluating, ulllight of the Sierra Club decision, which Section 112( d) 

source category standards should be revised, and of these, which should be revised on an 

expedited basis. As we engage in the process of evaluating and revising rules, we wilt evaluate 

any information that we have, and that we may receive from industry or other sources, on 

emissions during periods of SSM. See, e.g., Clean Air Act Section 112(d)(3)(A) (existing source 

standards are based on the average emission limitation achieved by the best performing 12 

percent of sources ' 'for which the Administrator has emissions information' '). EPA will 

endeavor to promptly address concems raised with respect to specific Section 112( d) source 

category standards where the Agency determines that sources within a source category may have 

a limited abmty to comply with those standards during periods of SSM. EPA intends to give 

highest priority to reviewing and revising those Section 112(d) source category standards that 

may be difficult for sources to meet during an SSM period given the technological limitations of 

the processes involved. 

cc: William Becker, NACAA 

Rich Ossias, OGC 

Steve Page, OAR 

Regional Air Division Directors 

Regional Air Program Managers 

Regional Air Enforcement Managers 

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Sincerely, 

AS- -{. ( .. ( ____ 

Adam M. Kushner, Director 

Office of Civil Enforcement 
Table 1-Section 112(d) Source Category Rules That Will Be Affected Once The 

Mandate Issues in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), Vacating the 

Startup, Shutdown, and Malfunction Exemptions in 40 C.F.R. § 63.6(f)(l) and (b)(lt 

Relevant Sourc€~ Category 

Part 63 Subpart 

R Gasoline Distribution 

s Pulp and Paper 

T Halogenated Solvent Cleaners 

X Secondary Lead Smelting 

y Marine Loading Operations 

GG Aerospace Manufacturing 

n Shipbuilding and Ship repair 

KK Printing and Publishing 

LL Primary Aluminum 

MM Combustion Sources at Pulp Mills 

CCC Steel Pidding 

m Flexible Polyurethane Foam Production 

LLL Portland Cement 

NNN Wool Fiberglass 

RRR Secondary Aluminum 

TIT Primary Lead 

vvv Publicly Owned Treatment Works 

XXX Ferroall(lY Production 

4 This Table presents the Cle:an Air Act Section 112(d) source category rules that EPA 

currently believes will be directly affected once the mandate issues in Sierra Club v. EPA, 551 

F. 3d 1019 (D.C. Cir. 2008). The rules identified in this Table incorporate 40 C.F.R Sections 

63.6(f)(1) and (h)(l) by reference and contain no other regulatory text exempting or excusing 

compliance during startup, shutdown or malfunction events. The information in this Table is 

based on EPA's initial analysis and is) therefore) subject to change. 

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Table 1 (Continued)- Section 112(d) Source Category Rules That Will Be Affected 

Once The Mandate Issues in Siern1 Club v. EPA, 551 F.Jd 1019 (D.C. Cir. 2008), Vacating 

the Startup, Shutdown, and Malfunction Exemptions in 40 C.F.R. § 63.6(f)(l) and (h)(l) 

Relevant SourCf! Category 

Part 63 Subpart 

AAAA Municipal Solid Waste Landfills 

JJJJ Paper and Other Web Coating 

RRRR Metal Furniture 

wvv Boat Manufacturing 

YYYYY Electric Arc Furnaces - area sources 

zzz:zz Iron and Steel Foundries- area sources 

EEEEEE Primary Copper- area sources 

FFFFFF Secondary Copper - area sources 

GGGGGG Primary .Nonferrous metals - area sources 

Paint Stripping and Mjscellaneous Coating- area sources 

LLLLLL Acrylic/M:odacrylic fibers - area sources 

ChromiUI111 Compounds - area sources 

000000 Flexible Polyurethane Foam Production and Fab - area sources 

PPPPPP Lead Actid Batteries - area sources 

RRRRRR Clay ceramics - area sources 

TTmT Secondary Nonferrous metals- area sources 

yyyyyy Ferroal1oys Production - area sources 

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Table 2- Section 112(d) Source Category Rules That Will Not Be Affected When 

the Mandate Issues in Sie.rra Club v. EPA, 551 F.Jd 1019 (D.C. Cir. 2008)5 

Relevant Source:~ Category 

Part 63 Subpart 

F,G,H,I Hazardous Organic NESHAP for Synthetic Orgaojc Chemical Manufactunng 

L Coke Oven Batteries 

N Chromium Electroplating 

0 Etnylen(: Oxide Sterilizers 

s Pulp andl Paper (some errussions standards only) 

u Polymers and Resins J 

w Polymers and Resins ll 

AA Phosphoric Acid Manufacturing 

BB Phosphate Fertilizer Production 

cc Petroleum Refineries 

DD Off-site Waste and Recovery 

HH Oil and Natural Gas Production 

00-YY Generic MACT (8 categories) 

DDD Mineral Wool 

EEE Hazardous Waste Combustors 

GGG Phannac:eutical Manufacturing 

s This Table presents the Clean Air Act Section 112(d) source category rules that will 

not be immediately affected by the v:acatur in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 

2008). These rules contain specific regulatory text that exempts or excuses compliance during 

SSM events, and such regulatory tex1t is in addition to, or in lieu of, a cross-reference to 40 

C.F.R Sections 63.6(1)(1) and (h)(l ). Although these provisions will remain in effect following 

the issuance of the mandate in Sierra Club, EPA recognizes that the legality of such source 

category-specific SSM provisions may now be caJled into question, and EPA intends to evaluate 

them in light ofthe court's decision. 

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Table 2 (Continued)- Section 112(d) Source Category Rules That Will Not Be 

Affected When the Mandate Issues in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) 

Relevant Source Category 

Part 63 Subpart 

HHH Natural Gas Transmission and Storage 

JJJ Polymers and Resins IV 

MMM Pesticide Manufacturing 

000 Polymer~; and Resins Ill 

ppp Polyethe1r Polyols 

QQQ Primary Copper Smelting 

uuu Petroleum Refineries IJ 

ecce Nutritional Yeast 

DODD Plywood and Composite Wood Products 

EEEE Organic !Liquids Distribution 

FFF'F Miscellaneous Organic NESHAP 

GGGG Vegetable Oil Extraction 

HHHH Wet-fom1ed Fiberglass Mat 

Ull Auto and Light Duty Truck Coating 

KKKK Metal Ca.n Coating 

MMMM Miscellaneous Metal Parts Coating 

NNNN Large Appliances Coating 

0000 Fabric Printing, Coating, and Dyeing 

pppp Plastic P;arts Coating 

QQQQ Wood Building Products 

ssss Metal Coil Coating 

uuuu Cellulose Production 
Table 2 (Continued)- S•~ction 112(d) Source Category Rules That Will Not Be 

Affected When the Mandate Issues in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) 

Relevant Sourct! Category 

Part 63 Subpart 

wwww Reinforced Plastics Composites Manufacturing 

xxxx Rubber Tire Manufacturing 

yyyy Gas Turlbines 

ZZZZ' Reciprocating Internal Combustion Engines 

AAAAA Lime Manufacturing 

BBBBB Semiconductor Manufacturing 

ccccc Coke Ovens 

DDDDD Industrial Boilers 

EEEEE Iron and Steel Foundries 

FFFFF lntegrate d Iron and Steel Production 

GGGGG Site Remediation 

HHHHH Miscellaneous Coating 

II III Mercury Cell Chlor-alkali Plants 

JJJ.JJ Brick and Clay Manufacturing 

KKKKK Clay Ceramics 

LLLLLL Asphalt Roofing and Processing 

MMMMM Flexible Polyurethane Foam Fabrication 

NNNNN HCI Production 

ppppp Engine Test Cells/Stands 

QQQQQ Friction Materials Manufacturing 

RRRRR Taconite Ore Production 

sssss Refractory Products 

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Table 2 (Continued)- Section 112(d) Source Category Rules That Will Not Be 

Affected When the Mandate Issues in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) 

Relevant Soun!e Category 

Part 63 Subpart 

m Primary Magnesium Production 

BBBBBB Gasoli.J1e Distribution - area sources 

MMMMMM Carbon Black Production -area sources 

ssssss Glass Manufacturing- area sources 

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