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UNITED STATES**E~~VIRONMENTAL'PROTECTION** AGENCY WASHINGTON, D.C. 20460 

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### DEC 5 lOot OFFIce OF AIR AND RAOIAnON MEMORANDUM

, SUBJECT:

FROM:**TO~** Re-Issuance of Clarification - State Implementation Plans (SIPs): Policy Regarding**E~miSSi~~** Durin . alfunctions, Startup, and Shutdown .Eric

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...........**~­** Director, Officeof Regulaco I)' Office ofEnforcement and Co liance Assurance

# J~hn S. Seitz

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. DIrector,

## O~ee of

## ..~hty**Pl~tandards** Office of Air and diation . .
. Regional Administrators, RegionsI - X This is are-issuance 

### of"Clarificarion

- State Implementation Plans (SlPs):Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,"which was signed on November 8, 2001.'This re-issued form of the Policyexcludes a paragraphthat was erroneouslyincluded in the NovemberB, 2001, version. f On September 20, 1999,EPA issued a guidance memorandum discussingthe types of State Implementation Plan (SIP) provisions addressing excess emissions during malfunctions, startups, and shutdowns that EPA believesmay appropriately be approvedas part of a SIP• State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown ("September2,0, 1999, Guidance")
.. Certain questionshave recentlybeen raised concerning the intended effect of the September 20, 1999, Guidance. The purpose ofthis Memorandum is to provide clarification with regard to these questions, This Memorandum confinnsthat the September 20, 1999, Guidanceprovidesguidanceto States andEPA regarding SIP,provisions related to excess emissionsduring malfunctions, 'startups, and shutdowns. It was not intended to alterthe status of any existing malfunction, startup or 'shutdown provision in a SIP 

## that has been approved by EPA. Similarly, the Guidance was not intendedto affect existingpermit terms or conditions regarding malfunctions, startups . and shutdowns that reflect approved 

## siP provisions, including opacity provisions, or to alterthe emergency defense provisions at 40**C.F.R~** § 70.6(g). Existing SIP rules and 40C.F.R. § 70.6(g) may only be changed through established rulemaking proceduresand existingpermit terms may onlybe changedthrough establishedpermittingprocesses. Thus, EPA did not intendthe

Internet Address CURL). http://wwW.epa.gov RecycledlReeyciabie• pnnl8d wlUlVegetable ()jI Blsed Inks011 Recycl4ld Paper(MInimum 30% Poslconsumel')**~2·** September 20, 1999, Guidance to be legally dispositive with respectto any particular proceedings in which a violation is alleged to have occurred. Rather.it is 

### in the context offuturerulemaking actions. such as the 

### SlP approval**proces~,** that 

### EPA :will consider the Guidanceand the 

### statutory principles on which the Guidance is basd,!i.
. , Questions also have been raised 

### regarding the effect of the 

### .September 20, 1999,Guidance as 

### it relates to enforcementdiscretion and affinnative defenses. The Guidanceconfirmsthat 

### EPA and States may always exercise 

### enforcementdiscretion with respect to excess emissions that occur during malfunctions, 'startups or shutdowns. 

### The Guidance further confirmsthat States may provide in SIPs appropriately; tailored affirmative defenses, consistent 

### with the
. September20, 1999, Guidance that woulp. be available 

### in enforcement. actionsbrought by States, .' EPA, or citizens.
co: 

### Air Directors Regions I - X
. Regional CounselsRegions I

- X

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