St ate Plans to Address Emissions D uring Startup, Shutdown and Malfunction:

Final Action on Response to Petition for Rulemaking, Restatement of Policy, Findings of Inadequacy and Call for Revisions

Fact Sheet

Action

● On May 22, 2015

, t he U.S. Environmental Protection Agency (EPA) issued a final

action to ensure states have plans in place tha t are fully consistent with the Clean Air Act and recent court decisions concerning startup, shutdown and malfunction (SSM) operations. Air pollution emitted during these periods may adversely affect the health of people in neighboring and downw in d communities

.

● T his action responds to a petition for rulemaking filed by the Sierra Club by

address ing outdated provisions i n State Implementation Plans ( SIPs ) , improv ing national consistency and provid ing clarity for the treatment of emissions that occur during startup, shutdown and malfunction (SSM).

● This fi nal action specifically:

1. responds to the Sierra Club Petition;

2. clarifies the EPA’s SSM Policy to assure consistency with the Clean Air Act

and recent court decisions ; and

3. finalizes the Administrator’s findings that the S SM provisions in the SIPs of

3 6 states (applicable in 4 5 statewide and local jurisdictions an d no tribal areas ) do not meet the requirements of the Clean Air Act ( CAA ) and accordingly

issues a “SIP call” for each of those states.

● In issuing the SIP call action, the EPA directs the affected states to correct specific

S SM provisions in the ir SIPs

. The Clean Air Act allows a maximum of 18 months

from the issuance of the final action to submit a SIP revision. T he SIP submission

deadli ne for each of the 3 6 states subject to the SIP c all action is November 22, 2016

.

● A list at the end of this fact sheet shows the EPA’s final action for each of the 41 states
whose SIPs were reviewed by the EPA as part of this acti on

— 39 states identified in

the Petition and 2 states identified by the EPA independently.

Background

● The CAA (section 110(k)(5)) provides a mechanism commonly called a "SIP c all" for correcting state implementation plans that the Administrator finds to be substantially inadequate to meet CAA requirements.

● Exemptions from emission limits during periods of startup, shutdown and malfunction exist in a number of state rules, some of which were adopted and approved into SIPs by the EPA many years ago.

1● R ecent court decisions have held that under the CAA , such exemptions are not allowed in SIPs. Other court decisions have remanded similar exemptions in National Emissions Standards for Hazardous Air Pollutants (NESHAP), which the EPA is also correcting in s eparate actions.

● On February 12, 2013, the EPA proposed to:

o deny the request in the Petition that EPA prohibit affirmative defenses in SIPs.

o grant the Petitioner’s claim for 36 of the 39 states identified in the Petition, by proposing to determine that t hese 36 states have approved SIPs that include one or more SSM provision that is inconsistent with the C AA . EPA proposed a “SIP

Call” for each of those 36 states.

o deny the request in the Petition that EPA discontinue reliance on interpretive

letters from s tates to clarify any potential ambiguity in the state's SIP submission.

● Subsequent to the February 2013 proposal, on April 18, 2014, the U.S. Court of Appeals for the D.C. Circuit issued its decision in NRDC v. EPA

, 749 F.3d 1055 (D.C. Cir. 2014). The court evaluated the legal validity of an affirmative defense provision

in the EPA’s NESHAP for the manufacturers of Portland cement . In the court’s opinion, affirmative defense provisions in the EPA’s own regulations cannot be applicable to violations of C AA requirements

. The EPA extended the logic of the court’s decision to SIP provisions and revised its SSM policy on approvability of affirmative defense provisions in SIPs.

● The EPA issued a supplemental proposal in September 2014 to reflect the court’s

o pinion that affirmative defense provisions cannot be applicable to violations of CAA requirements . In the supplemental proposal , the EPA revised what it proposed in February 2013 with respect to affirmative defense provisions and it proposed SIP

calls for affirmative defense provisions in additional states

.

For More Information

● To download a copy of this notice, go to the EPA's website at: http://www.epa.gov/airquality/urbanair/sipstatus/

● Today's final action and other background information are also available either

e lectronically at http://www.regulations.gov

, which is the EPA’s electronic public docket and comment system , or in hardcopy at th e EPA Docket Center’s Public Reading Room.

● The Public Reading Room is located at EPA Headquarters, room number 3334 in the William Jefferson Clinton West Building, 1301 Constitution Avenue, NW, Washington, D.C. Hours of operation are 8:30 a.m. to 4:30 p.m. eastern standard time, Monday through Friday, excluding federal holidays.

● Visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor materials will be processed through

an X

- ra y machine as well. Visitors will be provided a badge that must be visible at all

times.

2● Materials for this final action can be accessed using Docket ID No. EPA

- HQ

- OAR

20 12

- 0322

.

● For more information on the final action , contact either Lisa Sutton at ( 9 19 ) 541

- 3450

or email at sutton.lisa@epa.gov or Geoffrey L. Wilcox at (202) 564

- 5601 or email at wilcox.geoffrey@epa.gov

.

3List of EPA’s Final Actions for All Affected States

State EPA ’s Final Action on Petition, to Grant or Deny , in Whole or in

Part Does EPA’s final action include a SIP call for SSM provisions?

Alabama Grant Yes

Alaska Grant Yes

Arizona Partially grant, partially deny Yes (for State and Maricopa County, not for Pima County)

Arkansas Grant Yes

California Not applicable Yes (for Eastern Kern APCD, Imperial APCD and San Joaquin Valley Unified APCD)

Colorado Grant Yes

Delaware Grant Yes

District of

Columbia Partially grant, partially deny Yes

Florida Grant Yes Georgia Grant Yes

Idaho Deny No

Illinois Grant Yes

Indiana Grant Yes

Iowa Partially grant, partially deny Yes

Kansas Grant Yes

Kentucky Partially grant, partially deny Yes (for State, not for Jefferson County)

Louisiana Grant Yes

Maine Grant Yes Michigan Grant Yes

Minnesota Grant Yes Mississippi Grant Yes

Missouri Partially grant, partially deny Yes

Montana Grant Yes

Nebraska Deny No (for State and Lincoln

Lancaster) New Hampshire Deny No New Jersey Partially grant, partially deny Yes

New Mexico Grant Yes (for State and Albuquerque

Bernalillo County)

North Carolina Grant Yes (for State and Forsyth County)

North Dakota Partially grant, partially deny Yes

Ohio Partially grant, partially deny Yes

Oklahoma Grant Yes Oregon Deny No

Rhode Island Grant Yes

South Carolina Partially grant, partially deny Yes

South Dakota Grant Yes

4State EPA ’s Final Action on Petition, to Grant or Deny , in Whole or in

Part Does EPA’s final action include a SIP call for SSM provisions?

Tennessee Grant Yes (for State, Knox County and Shelby County)

Texas Not applicable Yes Virginia Grant Yes

Washington Grant Yes (for State, Energy Facility Site

Evaluation Council and Southwest Clean Air Agency ) West Virginia Grant Yes Wyoming Deny No

41 s tates Grant or partially grant:

34 states SIP call:

36 states

5