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UNITED STATES E~~VIRONMENTAL'PROTECTION AGENCY

WASHINGTON, D.C. 20460

III 002

DEC 5 lOot

OFFIce OF

AIR AND RAOIAnON

MEMORANDUM

, SUBJECT:

FROM:

TO~

Re-Issuanceof Clarification - State Implementation Plans (SIPs): Policy

Regarding E~miSSi~~ Durin . alfunctions, Startup, and Shutdown

.Eric SChaeff~ xi2...........~­ Director, OfficeofRegulacoI)'

OfficeofEnforcementandCo liance Assurance

J~hn S. Seitz ~. J/ . DIrector, O~ee of ..~htyPl~tandards Office of Air and diation . . .

RegionalAdministrators, RegionsI - X

This is are-issuance of"Clarificarion - StateImplementation Plans (SlPs):Policy

RegardingExcess Emissions DuringMalfunctions, Startup, and Shutdown,"which was signed

on November 8, 2001.'Thisre-issuedform ofthe Policyexcludesa paragraphthat was

erroneouslyincluded in the NovemberB, 2001, version.

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On September20, 1999,EPAissueda guidance memorandum discussingthe typesof

State Implementation Plan (SIP)provisions addressing excess emissions duringmalfunctions,

startups, and shutdowns that EPA believesmayappropriately be approvedas part of a SIP• State

Implementation Plans: PolicyRegardingExcess Emissions DuringMalfunctions, Startup, and

Shutdown ("September2,0, 1999, Guidance").. Certain questionshave recentlybeen raised

concerning the intended effect ofthe September 20, 1999, Guidance. The purposeofthis

Memorandum is to provideclarification with regard to these questions,

ThisMemorandumconfinnsthat the September 20, 1999, Guidanceprovidesguidanceto

States andEPA regarding SIP,provisions related to excess emissionsduringmalfunctions,

'startups, and shutdowns. It was not intendedto alterthe status of any existingmalfunction,

startup or'shutdown provision in a SIP that has been approved by EPA. Similarly, the Guidance

was not intendedto affect existingpermit terms or conditions regardingmalfunctions, 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 SIPrules and 40C.F.R. § 70.6(g)

may only be changed through established rulemaking proceduresand existingpermit termsmay

onlybe changedthrough establishedpermittingprocesses. Thus, EPA did not intendthe

Internet Address CURL). http://wwW.epa.gov

RecycledlReeyciabie• pnnl8dwlUlVegetable ()jI BlsedInks011 Recycl4ld Paper(MInimum 30%Poslconsumel')
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September 20, 1999, Guidance to be legallydispositive with respectto any particularproceedings

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

EPAand States may always exercise enforcementdiscretion with respect to excess emissions

that occur duringmalfunctions,'startups or shutdowns. The Guidancefurther confirmsthat

States may provide in SIPs appropriately;tailoredaffirmative defenses, consistentwiththe .

September20, 1999, Guidance that woulp. be available in enforcement.actionsbroughtby States, .'

EPA, or citizens.

co: AirDirectorsRegionsI -X .

Regional CounselsRegions I - X .

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