State Plans to Address Emissions During 

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

action to ensure states have plans in place that 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 downwind communities.

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

addressing outdated provisions in State Implementation Plans (SIPs), improving

national consistency and providing clarity for the treatment of emissions that occur

during startup, shutdown and malfunction (SSM). 

● This final 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 SSM provisions in the SIPs of 

36 states (applicable in 45 statewide and local jurisdictions and 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 

SSM provisions in their SIPs. The Clean Air Act allows a maximum of 18 months

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

deadline for each of the 36 states subject to the SIP call 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 action—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 call" 

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. 

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● Recent 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 separate 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 these 36 states have approved SIPs that include one or 

more SSM provision that is inconsistent with the CAA. 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 states 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 CAA 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 

opinion 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 

electronically at http://www.regulations.gov, which is the EPA’s electronic public 

docket and comment system, or in hardcopy at the 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-ray machine as well. Visitors will be provided a badge that must be visible at all 

times.

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● Materials for this final action can be accessed using Docket ID No. EPA-HQ-OAR2012-0322. 

● For more information on the final action, contact either Lisa Sutton at (919) 541-3450 

or email at sutton.lisa@epa.gov or Geoffrey L. Wilcox at (202) 564-5601 or email at 

wilcox.geoffrey@epa.gov. 

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List 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 LincolnLancaster)

New Hampshire Deny No

New Jersey Partially grant, partially deny Yes

New Mexico Grant

Yes (for State and AlbuquerqueBernalillo 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

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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?

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 states

Grant or partially grant: 

34 states

SIP call: 

36 states

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