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Page 1 of 339 **6560 -**  **50 -**  **P ENVIRONMENTAL PROTECTION AGENCY** 

**40 CFR Part 52 [EPA**  **- HQ**  **- OAR** **- 20**  **12 -**  **0322 ; FRL**  **- xxxx**  **- x]** 

**RIN 2060**  **- A**  **R68 State Implementation Plans: Response to Petition for Rulemaking; Findings**  **of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess**  **Emissions During Periods of Startup, Shutdown, and Malfunction AGENCY:**  Environmental Protection Agency (EPA). **ACTION:** P roposed rule. **SUMMARY:** Th e EPA is proposing to take action on a petition for rulemaking filed b y the Sierra Club with the EPA Administrator on June 30, 2011 (the Petition). The Petition includes interrelated requests concerning the treatment of excess emissions in state rules by sources during periods of st artup, shutdown, or malfunction (SSM). The EPA is proposing to grant in part and to deny in part the request in the Petition to rescind its policy interpreting the Clean Air Act (CAA) to allow states to have appropriately drawn state implementation plan (S IP ) provisions that provide affirmative defenses to monetary penalties for violations during periods of SSM. The EPA is also proposing either to grant or to den y the Petition with respect to the specific existing SIP provisions related to SSM in each of 39 states identified by the Petitioner as inconsistent with the CAA. Further, for each of those states where the EPA proposes to grant the Petition concerning specific provisions, the EPA also proposes to find that the existing SIP provision is substantially inadequate to meet CAA requirements and thus under CAA authorit y proposes a "SIP

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Page 2 of 339 call." For those states for which the EPA proposes a SI P call, the EPA also proposes a schedule for the states to submit a corrective SIP revision. Finally , the EPA is also p roposing to den y the request in the Petition that the EPA discontinue reliance on interpretive letters from states to clarify an y potential ambiguit y in SIP submissions, even in circumstances where the EPA may determine that this approach is appropriate an d has adequatel y documented that approach in a rulemaking action. This action reflects the EPA's current SSM Policy for SIPs. **DATES:** Comments . C omments must be received on or before **[INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].**  Public Hearing . If an yone contacts the EPA requesting a public hearing b y **[ INSERT DATE 15 DAYS AFTER PUBLICATION IN THE FEDERAL**  **REGISTER]** , we will hold a public hearin g on January 29, 2013. **ADDRESSES:** Submit y our comments, identified by Docket ID No. EPA - HQ - OAR 201 2 - 0322 , by one of the following methods:

 http://www.regulations.gov : Follow the online instructions for submitting comments.

 E mail: a - and

- r- docket@epa.gov .  Fax : (202) 566 - 9744.

 Mail : Attention Docket ID No. EPA - HQ - OAR - 2012 - 0322, U.S. Environmental Protection Agency , EPA West (Air Docket), 1200 Pennsylvania Avenue, NW, Mail Code: 6102T, Washington, DC 20460. Please include a total of two copies.

 Hand Delivery : U.S. Environmental Protection Agency , EPA West (Air Docket),

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Page 3 of 339 1301 Constitut ion Avenue, Northwest, Room 3334, Washington, DC 20004, Attention Docket ID No. EPA - HQ - OAR - 201 2 - 0322. Such deliveries are onl y accepted during the Docket ' s normal hours of operation, and special arrangements should be made for deliveries of boxed informati on . Instructions . D irect your comments to Docket ID No. EPA - HQ - OAR - 201 2 - 0322. The EPA ' s policy

is that all comments received will be included in the public docket without change and may

be made available online at www.regulations.gov , including an y personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted b y statute . Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e mail . The www.regulations.gov website is an

" anon ym ous access " sy stem, which means the EP A will not know y our identity or contact information unless you provide it in the body of your comment . If you send an e mail comment directl y t o the EPA without going through www.regulations.gov , y our e mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet . If you submit an electronic comment, the EPA recommends that you include your name and other contact informat ion in the body

of y our comment and with any CD y ou submit . If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment . Electronic files should avoid the use of special characters, avoid an y form of encry ption, and be free of any defects or viruses . For additional information about the EPA ' s public docket visit the

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Page 4 of 339 EPA Docket Center homepage at www.epa.gov/ epahome/dockets.htm . For additional instructions on submitting comments, go to section I .C of the **SUPPLEMENTARY INFORMATION**  section of this document . Docket . All documents in the docket are listed in the www.regulations.gov index . Although listed in the index, some information is not publicly available, e.g. , CBI or other information whose disclosure is restricted b y statute . Certain other material, such as copy righted material, will be publicly available only

in hard cop y . Publicly

available docket materials are available either electronically at www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency , Air Docket, EPA/DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC . The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holiday s . The telephone number for the Public Reading Room is (202) 566 - 1744, and the telephone number for the Air Docket is (202) 566 - 1742. Public Hearing : If a public hearing is held, it will be held on January 29, 2013, at the EPA Ariel Rios East building, Room 1153, 1301 Constitution Avenue, Washington, DC 20460. The public hearing will convene at 9 a.m. (Eastern S tandard T ime) and continue until the later of 6 p.m. or 1 hour after the last registered speaker has spoken. People interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Pamela L ong, Air Quality Planning Division, Office of Air Quality Planning and Standards (C504 - 01), U.S. Environmental Protection Agency , Research Triangle Park, NC 27711, telephone (919) 541 - 0641, fax number (919) 541 - 5509, email address long.pam@epa.gov , at least 2 day s in advance of the public hearing

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Page 5 of 339 (see **DATES** ). People interested in attending the public hearing must also call Ms. L ong to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed action. The EPA will make every ef fort to accommodate all speakers who arrive and register. A lunch break is scheduled from 12:30 p.m. until 2 p.m. Because this hearing is being held at U.S. government facilities, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. In addition, you will need to obtain a propert y pass for an y personal belongings you bring with you. Upon leaving the building, you will be required to return this pr opert y pass to the security desk. No large signs will be allowed in the building, cameras may onl y be used outside of the building, and demonstrations will not be allowed on federal property for securit y reasons. The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. If a hearing is held on January 29, 2013, w ritten comments on the proposed rule must be postmarked by February 28, 2013 . Commenters should notify Ms. L ong if they

will need specific equipment, or if there are other special needs related to providing comments at the hearing. The EPA will provide equipment for commenters to show overhead slides or make computerized slide presentations if we receive special requests in advance. Oral testimony will be limited to 5 minutes for each comment er. The EPA encourages

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Page 6 of 339 commenters to provide the EPA with a cop y of their oral testimony electronically (via email or CD) or in hard copy form. The hearing schedule, including lists of speakers, will be posted on the EPA ' s webs ite at www.epa.gov/air/urbana ir/sipstatus/ . Verbatim transcripts of the hearings and written statements will be included in the docket for the rulemaking. The EPA will make every effort to follow the schedule as closely as possible on the day

of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. **FOR FURTHER INFORMATION CONTACT:** If you have questions concerning the public hearing, please contact Ms. Pamela L ong, U.S. Environmental Protection Agency , Office of Air Quality Planning and S tandards, Air Quality Planning Division, (C504 - 01), Research Triangle Park, NC 27711, telephone (919) 541 - 0641, fax number (919) 541 - 5509, email address: long.pam@epa.gov (preferred method for registering). Questions concerning th is proposed rule should be addressed to Ms. L isa Sutton, U.S. EPA, Office of Air Qualit y Planning and Standards, State and Local Programs Group, (C539 - 01), Research Triangle Park, NC 27711, telephone number (919) 541 - 3450, email at sutton.lisa@epa.gov . **SUPPLEMENTARY INFORMATION:** For questions related to a specific SIP, please contact the appropriate EPA R egional O ffice: **EPA R**  **egional O**  **ffice Contact for**  **R egional**  **O ffice (person,** 

**mailing address, telephone number) State** 

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Page 7 of 339 **EPA R**  **egional O**  **ffice Contact for**  **R egional**  **O ffice (person,** 

**mailing address, telephone number) State**  I Alison Simcox, Environmental Scientist,

EPA Region 1, 5 Post Office Square, Suite 100, Boston, MA 02109 - 3912, (617) 918 - 1684. Connecticut, Massachusetts, Maine, New Hampshire, Rhode Island, and Vermont. II Paul Truchan , EPA Region 2, 290

Broadway , 25th Floor, New York, NY 10007 - 1866, (212) 637 - 3706. New Jersey , New York, Puerto Rico, and Virgin Islands. III Harold Frankford, EPA Region 3, 1650

Arch Street, Philadelphia, PA 19103 - 2029, (215) 814 - 2173. District of Columbia, Delaware, Maryland, Pennsylvania, Virginia, and West Virginia. IV Joel Huey , EPA Region 4, Atlanta

Federal Center, 61 Fors yth Street, SW, Atlanta, GA 30303 - 3104, (404) 562 - 9104. Alabama, Florida, Georgia, Kentuck y, Mississippi, North Carolina, South Carolina, and Tennessee. V Chris Panos, Air and Radiation Division

(AR - 18J), EPA Region 5, 77 We st Jackson Boulevard, Chicago, IL 60604 - 3507, (312) 353 - 8328. Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. VI Alan Shar (6PD - L) , EPA Region 6,

Fountain Place 12th Floor, Suite 1200, 1445 Ross Avenue, Dallas, TX 75202 - 2733, (214) 665 - 6691. Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. VII Jan Simpson, EP A Region 7, 901 North

5th Street, Kansas City , KS 66101, (913) 551 - 7876. Io wa, Kansas, Missouri, and Nebraska. VIII Kathy

Ay ala, Environmental Protection Specialist, Air Quality

Planning Unit (8P - AR) Air Program, Office of Partnership and Regulatory Assistance, EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202 - 1129, (303) 312 - 6142. Colorado, Montana, North Dakota, South Dakota, Utah, and Wy oming.

IX Lisa Tharp, EPA Region 9, 75

Hawthorne Street, San Francisco, CA 94105, (415) 972 - 3974. Arizona; California; Hawaii and the Pacific Is lands; Indian Country within Region 9 and Navajo Nation; and Nevada.

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Page 8 of 339 **EPA R**  **egional O**  **ffice Contact for**  **R egional**  **O ffice (person,** 

**mailing address, telephone number) State**  X Donna Deneen, Environmental Engineer,

Office of Air, Waste and Toxics (AWT 107), EPA Region 10, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101, (206) 553 - 6706. Alaska, Idaho, Oregon, and Washington.

**I. General Information**  A. Does this action apply to me? Entities potentially

affected by

this rule include states, U.S. territories, local authorities, and eligible tribes that are currently administering, or may

in the future

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Page 9 of 339 administer, the EPA - approved implementation plans ("air agencies") . 1 The EPA's action on the Petition is potentially of interest to all such entities because th e EPA is evaluating issues related to basic CAA requirements for SIPs. Through this rulemaking, the EPA is both clarifying and appl ying its interpretation of the CAA with respect to SIP provisions applicable to excess emissions during SSM events. In additi on, the EPA may find specific SIP provisions in states identified in the Petition to be substantially inadequate to meet CAA requirements, pursuant to CAA section 110(k)(5), and thus th os e state s will potentially

be affected b y this rule making directly . Fo r example, if a state ' s existing SIP provision allows an automatic exemption for excess emissions during periods of startup, shutdown, or malfunction, such that these excess emissions do not constitute a violation of the otherwise applicable emission limit ations of the SIP, then the EPA may determine that the SIP provision is substantially inadequate because the provision is inconsistent with fundamental requirements of the CAA . This rule may also be of interest to the public and to owners and op erators of industrial facilities that are subject to emission limits in SIPs, because it may require changes to state rules covering excess emissions.

1 The EPA respects the unique relationship between the U.S. government and tribal authorities and acknowledges that tribal concerns are not interchangeable with state concerns. For convenience, we refer to "air agencies" in this rulemaking to co llectively mean states, the District of Columbia, U.S. territories, local air permitting authorities, and eligible tribes that are currently administering, or may

in the future administer, EPA approved implementation plans. Under the CAA and EPA regulation s, tribes may , but are not required to, appl y for eligibility to have a tribal implementation plan (TIP). The EPA notes that the petition under evaluation does not identify any specific provisions related to tribal implementation plans. We refer to "state" or "states" to mean one, some, or all of the 39 states identified in the Petition, and when quoting or paraphrasing the CAA or other document that uses that term.

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Page 10 of 339 When finalized, this action will embody the EPA's updated SSM Policy for SIP provisions relevant to exces s emissio ns during SSM events. B. Wh ere can I get a copy of this document and other related information? In addition to being available in the docket, an electronic cop y of this proposal notice will also be available on the World Wide Web . Following sign ature by the EPA Assistant Administrator, a cop y of this notice will be posted on the EPA ' s webs ite, under SSM SIP Call 2012 , at www.epa.gov/air/urbanair/sipstatus . Inaddition to this notice, other relevant documents are located in the docket, including a cop y of the Petition, a technical support document providing more details on the proposed action, and copies of each of the four guidance documents pertaining to excess emissions issued by the EPA in 1982, 1983, 1999, and 2001, which are discussed in more detail later in this proposal notice. C. What should I consider as I prepare my comments? 1. Submitting CBI

. Do not submit this information to the EPA through www.regulations.gov or e mail . Clearly mark the part or all of the information that y ou claim to be CBI . For CBI information in CD that you mail to the EPA, mark the outside of the CD as CBI and then identify electronically

within the CD the specific information that is claimed as CBI . Inaddition to one co mplete version of the comment that includes information claimed as CBI, a cop y of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket . Information so marked will not be disclosed except in a ccordance with procedures set forth in 40 CFR part 2 . Send or deliver information identified as CBI onl y to the following address:

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Page 11 of 339 Roberto Morales, OAQPS Document Control Officer (C404 - 02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No . EPA - HQ - OAR - 201 2 - 0322. 2. Tips for preparing your comments . When submitting comments, remember to:

 Id entify

the rulemaking by

docket number and other identifying information (subject heading, Federal Register date , and page number) .  Follow directions - The agency may ask you to respond to specific questions or organize comments by

referencing a Code of Federal Regulations (CFR) part or section number .  Explain why

y ou agree or disagree; suggest alternatives and substitute language for your requested changes .  Describe an y assumptions and provide an y technical information and/or data that yo u used .  If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced .  Provide specific examples to illustrate y our concerns, and suggest alternatives .  Explain your views as clearl y as possible, avoiding the use of profanity or personal threats .  Make sure to submit y our comments by the comment period deadline identified . D. How is the prea mble organized? The information presented in this preamble is organized as follows: I. General Information

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Page 12 of 339 A. Does this action appl y to me? B. Where can I get a cop y of this document and other related information? C. What should Iconsider as Iprepar e m y comments? D. How is the preamble organized? E . What is the meaning of key terms used in this notice? II. Overview of Proposed Rule A. How is the EPA proposing to respond to the Petition? B. What did the Petitioner request? C. To which air agencies does this proposed rulemaking appl y and why ? D. What is the EPA proposing for an y state that receives a finding of substantial inadequacy

and a SIP call? E. What happens if an affected state fails to meet the SIP submission deadline ? F. What happens in an affected state in the interim period starting when the EPA promulgates the final SIP call and ending when the EPA approves the required SIP revision? III. Statutory , Regulatory , and Policy Background IV . Proposed Action in Respon se to Request to Rescind the EPA Policy Interpreting the CAA to Allow Appropriate Affirmative Defense Provisions A. Petitioner's Request B. The EPA's Response V. Proposed Action in Response to Request for the EPA's Review of Specific Existing SIP Provis ions for Consistency with CAA Requirements A. Petitioner's Request B. The EPA's Response VI . Proposed Action in Response to Request that the EPA L imit SIP Approval to the Text of State Regulations and Not Rely upon Additional Interpretive Letters from the State A. Petitioner's Request B. The EPA's Response VII. Clarifications, Reiterations, and Revisions to the EPA's SSM Policy A. Applicability

of Emission L imitations During Periods of Startup and Shutdown B. Affirmative Defense Provisions During Pe riods of Malfunction C. Affirmative Defense Provisions During Periods of Startup and Shutdown D. Relationship Between SIP Provisions and Title V Regulations E. Intended Effect of the EPA's Action on the Petition VIII. Legal Authorit y, Process, and Timi ng for SIP Calls A. SIP Call Authority Under Section 110(k)(5)

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Page 13 of 339 1. General Statutory

Authority 2. Substantial Inadequacy of Automatic Exemptions 3. Substantial Inadequacy of Director's Discretion Exemptions 4. Substantial Inadequacy of Improper Enforcement Discretion Provisions 5. Substantial Inadequacy of Deficient Affirmative Defense Provisions B. SIP Call Process Under Section 110(k)(5) C. SIP Call Timing Under Section 110(k)(5) IX . What is the EPA propos ing for each of the specific SIP provisions identified in the Petition? A. Overview of the EPA's Evaluation of Specific SIP Provisions 1. Automatic Exemption Provisions 2. Director's Discretion Exemption Provisions 3. State - only

Enforcement Discretion Provisions 4. Adequacy

of Affirmative Defense Provisions 5. Affirmative Defense Provisions Applicable to a "Source or Small Group of Sources" B. Affected States in EPA Region I 1. Maine 2. New Hampshire 3. Rhode I sland C. Affected States in EPA Regi on II 1. New Jersey 2. [Reserved] D. Affected States in EPA Region III 1. Delaware 2. District of Columbia 3. Virginia 4. West Virginia E. Affected States and Local Jurisdictions in EPA Region IV 1. Alabama 2. Florida 3. Georgia 4. Kentuck y 5. Kentuck y: Jefferson County 6. Mississippi 7. North Carolina 8. North Carolina: Fors yth County 9. South Carolina 10. Tennessee 11. Tennessee: Knox County 12. Tennessee: Shelb y County

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Page 14 of 339 F. Affected States in EPA Region V 1. Illinois 2. Indiana 3. Mic higan 4. Minnesota 5. Ohio G. Affected States in EPA Region VI 1. Arkansas 2. Louisiana 3. New Mexico 4. Oklahoma H. Affected States in EPA Region VII 1. Io wa 2. Kansas 3. Missouri 4. Nebraska 5. Nebraska: Li ncoln - Lancaster I. Affected States in EPA Region VIII 1. Colorado 2. Montana 3. North Dakota 4. South Dakota 5. Wyoming J. Affected States and Local Jurisdictions in EPA Region IX 1. Arizona 2. Arizona: Maricopa County 3. Arizona: Pima County K. Affected States in E PA Region X 1. Alaska 2. Id aho 3. Oregon 4. Washington X. Statutory

and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory

Flexibility

Act D. Unfunded Mandates Reform Act E. Executive Order 13132

– Federalism F. Executive Order 13175

– Consultation and Coordination with Indian Tribal Governments

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Page 15 of 339 G. Executive Order 13045

– Pr otection of Children from Environmental Health Risks and Safet y Risks H. Executive Order 13211

– Actions Concerning Regulations That Significantl y Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executiv e Order 12898

– Federal Actions to Address Environmental Justice in Minority Populations and L ow - Income Populations K. Determination Under Section 307(d) L. Judicial Review XI . Statutory

Authorit y E. What is the meaning of key terms used in this notice ? For th e purpose of this notice , the following definitions apply unless the context indicates otherwise : The terms Act or CAA mean or refer to the Clean Air Act. The term affirmative defense means, in the context of an enforcement proceeding, a r esponse or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectivel y evaluated in a judicial or administrative proceeding. By demonstrating that the elements of an a ffirmative defense have been met, a source may avoid a civil penalty

but cannot avoid injunctive relief. The terms air agenc

y and air agencies mean or refer to states, the District of Columbia, U.S. territories, local air permitting authorities with deleg ated authority from the state, and tribal authorities. The term automatic exemption means a generall y applicable provision in a SIP that would provide that if certain conditions existed during a period of excess emissions, then those exceedances would not be considered violations of the applicable emission

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Page 16 of 339 limitations. The term director '

s discretion provision means, in general, a regulatory provision that authorizes a state regulatory official unilaterally

to grant exemptions or variances from applicable emission limitations or control measures, or to excuse noncompliance with applicable emission limitations or control measures, in spite of SIP provisions that would otherwise render such conduct b y the source a violation. The term EPA r efer s to the United States Environmental Protection Agency . The term excess emissions means the emissions of air pollutants from a source that exceed an y applicable SIP emission limitations. The term malfunction means a sudden and unavoidable breakdown of process or contro l equipment. The term NAAQS mean s national ambient air quality standard or standard s . These are the national primary

and secondary

ambient air quality

standards that the EPA establishes under CAA section 109 for criteria pollutants for purposes of protect ing public health and welfare. The term Petition refers to the petition for rulemaking titled, "Petition to Find In adequate and Correct Several State Implementation Plans under Section 110 of the Clean Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance Provisions," filed by the Sierra Club with the EPA Administrator on June 30, 2011. The term Petitioner refers to the Sierra Club. The term shutdown means, generall y, the cessation of operation of a source for any reason.

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Page 17 of 339 The term SIP mean s or refer s to a State Implementation Plan. Generall y, the State Implementation Plan is the collection of state statutes and regulations approved by the EPA pursuant to CAA section 110 that together provide for implementation, maintenance, and enforcement o f a national ambient air quality standard (or any

revision thereof) under section 109 for an y air pollutant in each air quality control region (or portion thereof) within a state . In some parts of this notice, statements about SIPs in general also appl y to tribal implementation plans in general even though not explicitly noted. The term SSM refers to startup, shutdown, or malfunction at a source. It does not include periods of maintenance at such a source. An SSM event is a period of startup, shutdown, or malfunction during which there are exceedances of the applicable emission limitations and thus excess emissions. The term SSM Policy refers to the cumulative guidance that EPA has issued concerning its interpretation of CAA requirements with respect to tr eatment of excess emissions during periods of startup, shutdown, and malfunction at a source. The most comprehensive statement of the EPA's SSM Policy prior to this proposed rulemaking is embodied in a 1999 guidance document discussed in more detail in thi s proposal. When finalized, this action will embody the EPA's updated SSM Policy for SIP provisions relevant to excess emissions during SSM events. The term startup means, generall y, the setting in operation of a source for any reason. **II. Overview of Pr**  **oposed Rule**

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Page 18 of 339 A. How is the EPA proposing to respond to the Petition? The EPA is proposing to take action on a petition for rulemaking that the Sierra Club (the Petitioner) filed with the EPA Administrator on June 30, 2011 ( the Petition ). The Petition c oncerns how air agency rules in EPA - approved SIPs treat excess emissions during periods of startup, shutdown, or malfunction of industrial process or emission control equipment. Man y of these rules were added to SIPs and approved by the EPA in the y ears sh ortl y after the 1970 amendments to the CAA, which for the first time provided for the s ys tem of clean air plans that were to be prepared by air agencies and approved b y the EPA. At that time, it was widely believ ed that emission limit ation s set at levels r epresenting good control of emissions during periods of normal operation could in some cases not be met with the same emission control strategies during periods of startup, shutdown, maintenance, or malfunction. Accordingl y, it was common for state plans t o include provisions for special, more lenient treatment of excess emissions during such periods. Man y of thes e provisions took the form of absolute or conditional statement s that excess emissions from a source, when they occur outside of the source's norm al operations, were not to be considered violations of the air agency rules, i.e. , exemptions. E xcess emission provisions for startup, shutdown, maintenance, and malfunctions were often inclu ded as part of the original SIPs that the EPA approved in 1971 and 1972. In the early

1970s, b ecause the EPA was inundated with proposed SIPs and had limited experience in processing them, not enough attention was given to the adequacy , enforceability , and consistency of these pro visions. Consequently , man y S IPs were

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Page 19 of 339 approved with broad and loosely - defined provisions to control excess emissions. Starting in 1977, however, the EPA discerned and articulated to air agencies that exemptions for excess emissions during such periods were inconsis tent with certain requirements of the CAA. The EPA also realized that such provisions allow opportunities for sources to repeatedly

emit pollutants during such periods in quantities that could cause unacceptable air pollution in nearb y communities with no legal pathway for air agencies, the EPA, or the courts to require the sources to make reasonable efforts to reduce these emissions. The EPA has been more careful after 1977 not to give new approval to SIP rules that are inconsistent with the CAA and has is sued several guidance memoranda to advise states on how to avoid impermissible provisions as they expand and revise their SIPs. The EPA has also found several SIPs to be deficient because of problematic SSM provisions and called upon the affected states to amend their SIPs. However, in light of the other priority work facing both air agencies and the EPA, the EPA has not to date initiated a broad effort to get all states to remove impermissible provisions from their SIPs and to adopt other, approvable appro aches for addressing excess emissions when appropriate. Public interest groups, including the Petitioner, have been urging the EPA to give greater priority to addressing the issue of SSM provisions in SIPs and have sued EPA in several state - specific cases. For reasons explained in section III of this notice and a background memo randum cited therein, the EPA has recently entered into a settlement agreement requiring it to respond to the Petition from the Sierra Club. As alluded to earlier in this notice , there are available CAA - consistent approaches that can be incorporated into SIPs to address excess emissions during SSM events. While

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Page 20 of 339 automatic exemptions and director’s discretion exemptions from otherwise applicable emission limit ation s are not consiste nt with the C AA , SIPs may include criteria and procedures for the use of enforcement discretion by air agency personnel and appropriatel y defined affirmative defenses . In this action, the EPA is reviewing the SIPs from 39 states to determine whether spe cific provisions identified in the Petition are permissible or impermissible under the C AA . In some cases, this review involves a close reading of the provision in the SI P and its context to discern whether it is in fact an exemption, a statement regarding enforcement discretion by the air agency , or an affirmative defense. Section IX of this notice presents the EPA’s anal ys is of each SIP provision at issue. T he EPA's review also hinges on interpretation of several relevant sections of the C AA . While the EP A has alread y developed and has been implementing the SSM Policy

that is based on its interpretation of the CAA, this action provides the EPA an opportunity

to invite public comment on this SSM Policy and its basis in the Clean Air Act. To that end, this n otice contains a detailed clarifying explanation of the SSM Policy

(including proposed revisions to it). This notice , and the notice of EPA’s final action after considering public comment, will also clarify for the affected states how they can resolve the identified deficiencies in their SIPs, as well as provide all air agencies guidance and model language as they further develop their SIPs in the future. In summary , the EPA proposes to agree with the Petitioner that many of the identified SIP provisio ns are not permissible under the CAA. However, in several cases we are proposing to find that an identified SIP provision is actually one of the permissible

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Page 21 of 339 approaches. Of the 39 states covered by the Petition, the EPA is proposing to make SIP calls for 36 states. The EPA is aware of other SSM - related SIP provisions that were not identified in the Petition but that may

be inconsistent with the EPA's interpretation of the CAA . The EPA may address these other provisions later in a separate notice - and - comment action. B. What did the Petitioner request? The Petition includes three interrelated request s concerning the treatment in SIPs of excess emissions by

sources during periods of startup, shutdown, or malfunction. First, the Petitioner argued that SIP pro visions providing an affirmative defense for monetary

penalties for excess emissions in judicial proceedings are contrary to the CAA. Thus, the Petitioner advocated that the EPA should rescind its interpretation of the CAA expressed in the SSM Policy that allows appropriatel y drawn affirmative defense provisions in SIPs. The Petitioner made no distinction between affirmative defenses for excess emissions related to malfunction, startup, or shutdown. Further, the Petitioner requested that the EPA issue a SI P call requiring states to eliminate all such affirmative defense provisions in existing SIPs. As explained later in this proposal, the EPA is proposing to grant in part and to deny in part this request. The EPA does not agree with the Petitioner that appro priately drawn affirmative defense provisions for violations due to excess emissions that result from malfunctions are contrary to the CAA, and thus the EPA is proposing to deny the request to revise its interpretation of the CAA concerning affirmative def

enses for malfunctions. However, the EPA is proposing to revise its SSM Policy with respect to affirmative defenses for violations due to excess emissions that

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Page 22 of 339 occur during startup and shutdown, in order to distinguish between planned events that are withi n the source's control and unplanned events that are not. The EPA believes that SIP provisions should encourage compliance during events that are within the source's control, and thus affirmative defenses for excess emissions during planned startup and shutdown are inappropriate, unlike those for excess emissions during malfunctions. Second, the Petitioner argued that man y existing SIPs contain impermissible provisions, including automatic exemptions from applicable emission limitations during SSM events, director's discretion provisions that provide discretionary exemptions from applicable emission limitations during SSM events, enforcement discretion provisions that appear to bar enforcement by the EPA or citizens for such excess emissions, and inappropri ate affirmative defense provisions that are not consistent with the recommendations in the EPA's SSM Policy . The Petitioner identified specific provisions in SIPs of 39 states that it considered inconsistent with the CAA and explained the basis for its obj ections to the provisions. As explained later in this proposal, the EPA agrees with the Petitioner that some of these existing SIP provisions are legall y impermissible and thus proposes to find such provisions "substantially inadequate" 2 to meet CAA requirements. Among the reasons for EPA's proposed action is to eliminate provisions that impermissibly interfere with enforcement. Simultaneously , the EPA proposes to issue a SIP call to the states in question requesting corrective SIP sub missions to revise their SIPs accordingl y. For the remainder of the identified provisions, however, the EPA 2 The term "substantially

inadequate" is used in the CAA and is discussed in detail in section VIII.A of this notice.

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Page 23 of 339 disagrees with the contentions of the Petitioner and thus proposes to deny the Petition with respect to those provisions and to take no further acti on. The EPA's action on this portion of the Petition will assure that these SIPs comply with the fundamental requirements of the CAA with respect to the treatment of excess emissions during periods of startup, shutdown, or malfunction. The majority of the SI P calls that EPA is proposing in this action implement the EPA's longstanding interpretation of the CAA through multiple iterations of its SSM Policy . In a few instances, however, the EPA is also proposing a SIP call to address the issue of affirmative d efenses during periods of planned startup and shutdown, because the EPA is revising its prior interpretation of the CAA to distinguish between violations due to excess emissions that occur during malfunctions and violations due to excess emissions that occ ur during planned startup and shutdown, which are modes of normal source operation. Third, the Petitioner argued that the EPA should not rely on interpretive letters from states to resolve any ambiguit y, or perceived ambiguit y, in state regulatory provisi ons in SIP submissions. The Petitioner reasoned that all regulatory provisions should be clear and unambiguous on their face and that any reliance on interpretive letters to alleviate facial ambiguity in SIP provisions can lead to later problems with compl iance and enforcement. Extrapolating from several instances in which the basis for the original approval of a SIP provision related to excess emissions during SSM events was arguably not clear, the Petitioner contended that the EPA should never use interpr etive letters to resolve such ambiguities. As explained later in this proposal, the EPA acknowledges the concern of the Petitioner that provisions in SIPs should be clear and unambiguous.

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Page 24 of 339 However, the EPA does not agree with the Petitioner that reliance on interpretive letters in a rulemaking context is never appropriate. Thus, the EPA is proposing to deny the request that actions on SIP submissions never rely on interpretive letters. In stead, the EPA explains how proper documentation of reliance on interpr etive letters in notice - and comment rulemaking nevertheless addresses the practical concerns of the Petitioner. The EPA solicits comment on its proposed response to the overarching issues in the Petition, and in particular on its proposed action with resp ect to each of the specific existing SIP provisions identified in the Petition as inconsistent with the requirements of the CAA. Through this action on the Petition, the EPA is clarifying, restating, and revising its SSM Policy . When finalized, this action will embody the EPA's updated SSM Policy for SIP provisions relevant to excess emissions during SSM events. C. To which air agencies does this proposed rulemaking apply and why? In general, the proposal may be of interest to all air agencies because the EPA is clarifying, restating, and revising its longstanding SSM Policy with respect to what the CAA requires concerning SIP provisions relevant to excess emissions during periods of startup, shutdown, and malfunction. For example, the EPA is denying the P etitioner's request that the EPA rescind its interpretation of the CAA to allow appropriately drawn affirmative defense provisions applicable to malfunctions, as explained in EPA guidance documents on this topic. The EPA is clarifying or revising its prior guidance with respect to several issues in order to ensure that future SI P submissions, not limited to those that affected states make in response to this action, are fully consistent with the CAA. For example, the EPA is revising its prior guidance conce rning whether the CAA allows

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Page 25 of 339 affirmative defense provisions that apply during periods of planned startup and shutdown. This proposal also addresses the use of interpretive letters for purposes of EPA action on SIPs. In addition, the proposal is directly r elevant to the states with SIP provisions identified in the Petition that the Petitioner alleges are inconsistent with CAA requirements or with the EPA's guidance concerning SIP provisions relevant to excess emissions. The EPA is proposing either to grant or to den y the Petition with respect to the specific existing SIP provisions in each of 39 states identified by the Petitioner as allegedl y inconsistent with the CAA. The 39 states (comprising 46 state and local authorities and no tribal authorities) are listed in table 1, "List of States with SIP Provisions for Which the EPA Proposes Either to Grant or to Den y the Petition, in Whole or in Part." After evaluating the Petition, the EPA is proposing to grant the petition with respect to one or more provision s in 36 states of the 3 9 states listed, and these are the states for which the proposed action on petition, according to table 1, is either "Grant" or "Partiall y grant, partially

deny ." Conversel y, the EPA is proposing to den y the petition with respect to all provisions that the Petitioner identifi ed in 3 of the 39 states, and these (Idaho, Nebraska, and Oregon) are the states for which the proposed action on petition, according to table 1, is "Den y." For each of the states for which the EPA proposes to gr ant or partiall y to grant the Petition, the EPA proposes to find that one or more particular provisions in the state's existing SIP identified by the Petitioner are substantially inadequate to meet the

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Page 26 of 339 requirements of the CAA. Thus, the EPA also proposes t o promulgate a SIP call to each of those states, requiring the state to correct those particular SIP provisions, in accordance with the SIP call process of CAA section 110(k)(5). The SI P calls apply only to those specific provisions, and the scope of each of the SIP calls is limited to those provisions. For each of the states for which the EPA proposes to deny or to partiall y deny the Petition, the EPA proposes to find that particular provisions in the existing SIP identified by the Petitioner are consi stent with the requirements of the CAA and thus not substantially

inadequate to meet the requirements pursuant to CAA section 110(k)(5). Thus, the EPA proposes to take no action with respect to those states for those particular SIP provisions. **Table 1. L ist of States with SIP Provisions for Which the EPA Proposes Either to** 

**Grant or to Deny the Petition, in Whole or in Part** EPA Region State Proposed action on petition I Maine ................................ ............... ............. Grant New Hampshire ................................ ............. Partially grant, partiall y deny Rhode I sland ................................ .................. Grant II New Jersey ................................ .................... Partially grant, partiall y deny III Delaware ................................ ........................ Grant District of Columbia ................................ ...... Partially grant, partiall y deny Virginia ................................ .......................... Grant West Virginia ................................ ................ Grant IV Alabama ................................ ......................... Grant Florida ................................ ........................... Grant Georgia ................................ .......................... Grant Kentuck y ................................ ....................... Grant Mississippi ................................ ..................... Grant North Carolina ................................ ............... Grant

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Page 27 of 339 South Carolina ................................ ............... Partially grant , partiall y deny Tennessee ................................ ...................... Grant V Illinois ................................ ............................ Grant Indiana ................................ ........................... Grant Michigan ................................ ........................ Grant Minnesota ................................ ...................... Grant Ohio ................................ ............................... Partially grant , partiall y deny VI Arkansas ................................ ........................ Grant Louisiana ................................ ....................... Grant New Mexico ................................ .................. Grant Oklahoma ................................ ...................... Grant VII Io wa ................................ ............................... Partially grant, partiall y deny Kansas ................................ ........................... Grant Missouri ................................ ......................... Partially grant, partiall y deny Nebraska ................................ ........................ Den y VIII Colorado ................................ ........................ Partially grant, partiall y deny Montana ................................ ......................... Grant North Dakota ................................ ................. Grant South Dakota ................................ ................. Grant Wyoming ................................ ....................... Grant IX Arizona ................................ .......................... Partially grant, partiall y deny X Alaska ................................ ............................ Grant Id aho ................................ .............................. Den y Oregon ................................ ........................... Den y Washington ................................ .................... Grant For each state for which the proposed action on the Petition is either " Grant " or

" Partiall y grant, partially deny , " the EPA proposes to find that certain specific provisions in each state's SI P are substantially inadequate to meet C AA requirements for the reason that these provisions are inconsistent with the CAA with regard to how the state treats excess emissio ns from sources during periods of startup, shutdown, and malfunction. The EPA believes that certain specific provisions in these SI Ps fail to meet fundamental statutory requirements intended to protect the NAAQS, prevention of significant deterioration (PS D) increments, and visibility . Equally importantl y, the EPA believes that

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Page 28 of 339 the same provisions may

undermine the ability

of states, the EPA, and the public to enforce emission limitations in the SIP that have been relied upon to ensure attainment or mainten ance of the NAAQS or to meet other C AA requirement s. For each state for which the proposed action on the Petition is either "Grant" or "Partiall y grant, partially

deny ," the EPA is also propos ing in this rulemaking to call for a SIP revision as necessary to correct the identified provisions . The SIP revisions that the EPA is proposing to require will rectify a number of different ty

pes of defects in existing SIPs, including automatic exemptions from emission limitations, impermissible director's discretion provisions, enforcement discretion provisions that purport to bar enforcement by the EPA or through a citizen suit , and affirmative defense provisions that are inconsistent with CAA requirements. A corrective SIP revision addressing automatic or impermiss ible discretionary exemptions will ensure that excess emissions during periods of startup, shutdown, and malfunction are treated in accordance with CAA requirements. Similarly , a corrective SIP revision addressing ambiguity in who may

enforce against violations of these emission limitations will also ensure that CAA requirements to provide for enforcement are met. A SIP revision to rectify deficiencies in affirmative defense provisions will assure that such defenses are onl y available when sources have met the criteria that justify their being shielded from monetary penalties in an enforcement action. The particular provisions for which the EPA is requiring SIP revisions are summarize d in section IX of this not ice. Man y of these provisions were added to the respective SIPs many y ears ago and have not been the subject of action by the state or the EPA since.

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Page 29 of 339 D. What is the EPA proposing for any state that receives a finding of substantial inadequacy and a SIP call? If the EPA finalizes a finding of substanti al inadequacy and issues a SIP call for any state, the EPA's final action will establish a deadlin e by which the state must make a SIP submission to rectify the deficiency . Pursuant to CAA section 110(k)(5), the EPA has authority to set a SIP submission de adline up to 18 months from the date of the final finding of substantial inadequacy . Accordingl y, the EPA is proposing that if it promulgates a final finding of substantial inadequacy and a SIP call for a state, the EPA will establish a date 18 months from the date of promulgation of the final finding for the state to respond to the SIP call . If, for example, the EPA's final findings are signed and disseminated in June 2013, then the SI P submission deadline for each of the states subject to the final SIP ca ll would fall in December 2014. Thereafter, the EPA will review the adequacy of that new SIP submission in accordance with the CAA requirements of sections 110(a), 110(k), 110(l), and 193, including the EPA's interpretation of the CAA reflected in the SSM Policy as clarified and updated through this rulemaking. The EPA believes that states should be provided the maximum time allowable under CAA section 110(k)(5) in order to have sufficient time to make appropriate SIP revisions following their own SIP development process. Such a schedule will allow for the necessary SIP development process to correct the deficiencies ye t still achieve the necessary SIP improvements as expeditiously as practicable. E. What happens if an affected state fails to meet the SIP submission deadline? If , in the future, the EPA finds that a state that is subject to a SIP call has failed to

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Page 30 of 339 submit a complete SIP revision as required b y the final rule, or the EPA disapproves such a SIP revision, then the finding or disapproval would trigger an obligation for the EP A to impose a f

ederal i mplementation p lan (FIP) within 24 months after that date. In addition, if a state fails to make the required SIP revision, or if the EPA disapproves the required SIP revision, then either event can also trigger mandatory 18 - month an d 24 - m onth sanctions clocks under CAA section 179. The two sanctions that apply under CAA section 179(b) are the 2 - to - 1 emission offset requirement for all new and modified major sources subject to the nonattainment new source review program and restrictio ns on highway funding. More details concerning the timing and process of the SIP call, and potential consequences of the SIP call, are provide d in section VIII.B of this n otice. F. What happens in an affected state in the interim period starting when the EPA promulgates the final SIP call and ending when the EPA approves the required SIP revision? If the EPA issues a final SI P call to a state, that action alone will not cause any automatic change in the legal status of the existing affected provision(s) i n the SIP. During the time that the state takes to develop a SIP revision in accordance with the SIP call and the time that the EPA takes to evaluate and act upon the SIP revision pursuant to CAA section 110(k), the existing affected SI P provision(s) will remain in place. The EPA notes, however, that the state regulatory revisions that the state has adopted and submitted for SIP approval will most likely be already

in effect at the state level during the pendency

of the EPA's evaluation of and action upon the new SIP submission. The EPA recognizes that in the interim period, there may continue to be instances

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Page 31 of 339 of excess emissions that adversel y impact attainment and maintenance of the NAAQS, interfere with PSD increments, interfere with visibility , and cause other adverse consequences as a result of the impermissible provisions. However, given the need to resolve these longstanding SIP deficiencies in a careful and comprehensive fashion, the EPA believes that providing sufficient time for these corrections to occur will ultimately be the best course to ensure the ultimate goal of eliminating the inappropriate SIP provisions and replacing them with provisions consistent with CAA requirements. **II I.**  **Statutory, Regulatory, and Policy Background**  The Petition rais ed issues related to excess emissions from sources during p eriods of startup, shutdown, or malfunction, and to the correct approach to these excess emissions in SIPs. In this context, "excess emissions" are air emissions that exceed the otherwise applicabl e emission limitations in a SIP, i.e. , emissions that would be violations of such emission limitations. The question of how to address excess emissions correctly during startup, shutdown, and malfunction events has posed a challenge since the inception of the SIP program in the 1970s. The primary objective of state and federal regulators is to ensure that sources of emissions are subject to appropriate emission controls as necessary

in order to attain and maintain the NAAQS, protect PSD increments, protect visibility , and meet other statutory requirements. Generally , this is achieved through enforceable emission limitations on sources that appl y, as required b y the CAA, continuously . Several key

statutory provisions of the CAA are relevant to the EPA's eval uation of the Petition. These provisions relate generall y to the basic legal requirements for the

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Page 32 of 339 content of SIPs, the authority and responsibility

of air agencies to develop such SIPs, and the EPA's authority

and responsibility

to review and approve SIP s ubmissions in the first instance, as well as the EPA's authorit y to require improvements to SIPs if the EPA later determines that to be necessary for a SIP to meet CAA requirements. In addition, the Petition raised issues that pertain to enforcement of pro visions in a SIP. The enforcement issues relate generall y to what constitutes a violation of an emission limitation in a SIP, who may seek to enforce against a source for that violation, and whether the violator should be subject to monetary penalties as w ell as other forms of judicial relief for that violation. The EPA has a longstanding interpretation of the CAA with respect to the treatment of excess emissions during periods of startup, shutdown, or malfunction in SIPs. This statutory

interpretation has been expressed, reiterated, and elaborated upon in a series of guidance documents issued in 1982, 1983, 1999, and 2001. In addition, the EPA has applied this interpretation in individual rulemaking actions in which the EPA: (i) approved SIP submissions th at were consistent with the EPA's interpretation; 3 (ii) disapproved SIP submissions that were not consistent with this interpretation; 4 (iii) itself promulgated regulations in FIPs that were consistent with this interpretation; 5 or (iv)

3 See " Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction A ctivities, " 75 FR 68989 (Nov. 10, 2010 ) . 4 See "Approval and Promulgation of State Implementation Plans; Michigan," 63 FR 8573 (Feb. 29, 1998).

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Page 33 of 339 issued a SIP call r equiring a state to revise an impermissible SIP provision. 6 The EPA's SSM Policy

is a policy

statement and thus constitutes guidance. As guidance, the SSM Policy does not bind states, the EPA, or other parties, but it does reflect the EPA's interpretation of the statutory requirements of the CAA. The EPA's evaluation of an y S IP provision, whether prospectively in the case of a new provision in a SIP submission or retrospectivel y in the case of a previously approved SIP submission, must be conducted through a notice - and - comment rulemaking in which the EPA will determine whether or not a given SI P provision is consistent with the requirements of the CAA and applicable regulations. 7 The Petition raised issues related to excess emissions from sources during periods of startup, shutdown, and malfunction, and the consequences of failing to address these emissions correctl y in SIPs. In broad terms, the Petitioner expressed concerns that the exemptions for excess emissions and the other types of alleged deficienc ies in existing SIP provisions "undermine the emission limits in SIPs and threaten states' abilities to achieve and maintain the NAAQS, thereb y threatening public health and public welfare, which includes agriculture, historic properties and natural areas. " 8 The Petitioner asserted

5 See "Federal Implementation Plan for the Billings/L aurel, MT, Sulfur Dioxide Area," 73 FR 21418 (Apr. 21, 20 08). 6 See "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 76 FR 21639 (Apr. 18, 2011). 7 See, generally , Catawba County, North Carolina et al. v. EPA , 571 F.3d 20, 33 - 35 (D.C. Cir. 2009) (u

pholding the EPA's process for developing and appl yi ng its guidance to designations). 8 Petition at 2.

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Page 34 of 339 that such exemptions for SSM events are "loopholes" that can allow dramatically higher amounts of emissions and that these emissions "can swamp the amount of pollutants emitted at other times." 9 In addition, the Petitioner argued that these automatic and discretionary

exemptions, as well as other SIP provisions that interfere with the enforcement structure of the CAA, undermine the objectives of the CAA. The EPA notes that the alleged SIP deficiencies are not legal technicalities . Compliance with the applicable requirements is intended to achieve the air quality protection and improvement purposes and objectives of the CAA. The EPA believes that the results of automatic and discretionary exemptions in SIPs, and of other provisions that interfere with effective enforcement of SIPs, are real - world consequences that adversely affect public health. A more detailed discussion of the statutory , regulatory and policy

background for this action is provided in the docket for this rulemakin g. 10 **IV. Proposed Action in Response to Request to Rescind**  **the EPA Policy**  **Interpreting the**  **CAA to Allow Appropriate Affirmative Defense Provisions** A. Petitioner '

s Request The Petitioner's first request was for the EPA to rescind its SSM Policy element interpreting the CAA to allow affirmative defense provisions in SIPs for excess emissions

9 Petition at 12. 10 See memorandum, "Statutory , Regulatory , and Policy Context for this Rulemaking," December 2012.

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Page 35 of 339 during SSM events. 11 Related to this request, the Petitioner also asked the EPA: (i) to find that SIPs containing an affirmative defense to monetary penalties for excess emissions during SSM events are substantially inadequate because they

do not comply

with the CAA; and (ii) to issue a SIP call pursuant to CAA section 110(k)(5) to require each such state to revise its SIP. 12 Alternativel y, if the EPA denies these two related requests, the Petitioner requested the EPA: (i) to require states with SIPs that contain such affirmati ve defense provisions to revise them so that they are consistent with the EPA's 1999 SSM Guidance for excess emissions during SSM events; and (ii) to issue a SI P call pursuant to CAA section 110(k)(5) to states with provisions inconsistent with the EPA's i nterpretation of the CAA. 13 The EPA interprets this latter request to refer to the specific SIP provisions that the Petitioner identified in a separate section of the Petition, titled, "Anal ys is of Individual States' SSM Provisions," including specific exis ting affirmative defense provisions. The Petitioner requested that the EPA rescind its SSM Policy element interpreting the CAA to allow SIPs to include affirmative defenses for violations due to excess emissions during an y t yp e of SSM events because the P etitioner contended there is no legal basis for the policy . Specificall y, the Petitioner cited to two statutory grounds, CAA sections 113(b) and (e), related to the t ype of judicial relief available in an enforcement proceeding and to the factors relevant to the scope and availability of such relief, that the 11 Petition at 11. 12 Id. 13 Petit ion at 12.

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Page 36 of 339 Petitioner claimed would bar the approval of an y typ e of affirmative defense provision in SIPs. In the Petitioner's view, the CAA "unambiguousl y grants jurisdiction to the district courts to determine penalties that should be assessed in an enforcement action involving the violation of an emissions limit." 14 The Petitioner first argued that in any judicial enforcement action in the district court, CAA section 113(b) provides that "such court shall have jurisdiction to restrain such violation, to require compliance, to assess such penalt y, . . . and to award an y other appropriate relief." The Petitioner reasoned that the EPA's SSM Policy

is therefore fundamentall y inconsistent with the CAA because it purp orts to remove the discretion and authorit y of the federal courts to assess monetary penalties for violations if a source is shielded from monetary penalties under an affirmative defense provision in the approved SIP. 15 The Petitioner concluded that the EPA 's interpretation of the CAA in the SSM Policy element allowing an y affirmative defenses is impermissible "because the inclusion of an affirmative defense provision in a SIP limits the courts' discretion

— granted b y Congress

—to assess penalties for Clean Ai r Act violations." 16 Second, in reliance on CAA section 113(e)(1), the Petitioner argued that in a judicial enforcement action in a district court, the statute explicitly specifies a list of

14 Petition at 10. 15 Id . 16 Id .

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Page 37 of 339 factors that the court is to consider in assessing penalties. 17 Th at section provides that either the Administrator or the court: ...shall take into consideration (in addition to such other factors as justice may require) the size of the business, the economic impact of the penalty on the business, the violator's full c ompliance history and good faith efforts to compl y, the duration of the violation as established by an y credible evidence (including evidence other than the applicable test method), pay

ment by the violator of penalties previously assessed for the same viol ation, the economic benefit of noncompliance, and the seriousness of the violation. The Petitioner argued that the EPA's SSM Policy authorizes states to create affirmative defense provisions with criteria for monetary penalties that are inconsistent with the factors that the statute specifies and that the statute explicitly directs courts to weigh in an y judicial enforcement action. In particular, the Petitioner enumerated those factors that it alleges the EPA's SSM Policy totally omits: (i) the size of th e business; (ii) the economic impact of the penalt y on the business; (iii) the violator's full compliance history ; (iv) the economic benefit of noncompliance; and (v) the seriousness of the violation. By

specifying particular factors for courts to consider , the Petitioner reasoned, Congress has alread y definitively spoken to the question of what factors are germane in assessing monetary

penalties under the CAA for violations. The Petitioner concluded that the EPA has no authority to allow a state to include an affirmative defense provision in a SIP with different criteria to be considered in awarding monetary penalties because "[p]reventing the district courts from considering these statutory factors is not a

17 Petition at 11.

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Page 38 of 339 permissible interpretation of the Clean Air Act." 18 The Petitioner drew no distinction between affirmative defenses for unplanned events such as malfunctions and planned events such as startup and shutdown. B. The EPA's Response The EPA has considered the concerns raised b y the Petitioner regarding the legal basis under the CAA for any form of affirmative defense for violations due to excess emissions as contemplated in the EPA's SSM Policy . The EPA does not agree with the Petitioner's overarching argument that CAA section 113 prohibits any affirmative d efense provisions in SIPs. However, the EPA has evaluated the broader legal basis that supports affirmative defense provisions in general and the specific affirmative defense provisions identified in the Petition in particular. Although the Petitioner did not distinguish between affirmative defense provisions for unplanned events such as malfunctions and affirmative defense provisions for planned events such as startup and shutdown, the EPA's evaluation of the legal basis for affirmative defense provisions indicates that the SSM Policy should differentiate between unplanned and planned events. Accordingl y, the EPA is proposing to deny the Petition in part with respect to affirmative defenses for malfunction events and to grant the Petition in part with respe ct to affirmative defenses for planned startup and shutdown events. To address this issue fully , it is necessary : (i) to explain the legal and policy

basis for affirmative defenses for malfunction events; (ii) to explain why that basis would not extend to startup and shutdown events; and (iii) to explain why the

18 Petition at 11.

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Page 39 of 339 Petitioner's arguments with respect to CAA section 113 do not preclude affirmative defense provisions for malfunction events but support the distinction between unplanned and planned events. The EP A proposes to deny the Petition with respect to affirmative defense provisions in SIPs applicable to sources during malfunctions. The EPA's SSM Policy has long recognized that there may be limited circumstances in which excess emissions are entirely bey ond the control of the owner or operator. Thus, the EPA believes that an appropriatel y drawn affirmative defense provision recognizes that, despite diligent efforts, practical realities may create difficulties in meeting a legall y required emission limitation continuously

and that emission standards may be violated under limited circumstances bey ond the control of the source. In accordance with CAA section 302(k), SIPs must contain emission limitations that "limit the quantity , rate, or concentration of emis sions of air pollutants on a continuous basis." 19 While "continuous" standards are required, there is also case law indicating that technology - based standards should account for the practical realities of technology . For example, in Essex Chemical v. Ruckel shaus , the court acknowledged that in setting standards under CAA section 111, "variant provisions" such as provisions allowing for upsets during startup, shutdown and equipment malfunction "appear necessary to preserve the reasonableness of the standards as a whole and that the record 19 Court decisions confirm that this requirement for continuous compliance prohibits exemptions for excess emissions during SSM events. See, e.g., Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA , 690 F.3d 1157, 1170 (10th Cir. 2012).

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Page 40 of 339 does not support the 'never to be exceeded' standard currently in force." 20 Though intervening case law and amendments to the CAA call into question the relevance of this line of cases today , they

support the EPA's view that a sy stem that incorporates some level of flexibility

is reasonable and consistent with the overall intent of the CAA. An appropriatel y drawn affirmative defense provision simply provides for a defense to monetary penalties for violations that are proven to be bey ond the control of the source. The EPA notes that the affirmative defense does not excuse a source from injunctive relief, i.e. , from being required to take further steps to prevent future upsets or malfunctions that cause harm to the public health. The EPA believes that affirmative defense provisions can supply flexibility

both to ensure that emission limitations are "continuous" as required by CAA section 302(k), because any violations remain subject to a claim for injunctive relief, and to provide limited relief in actions for penalties for malfunctions that are beyond the control of the owner where the owner has taken necessary steps to minimize the likelihood and the extent of any such violation. This approach supports the reasonableness of the SI P emission limitations as a whole. SIP emission limitations must apply and be enforceable at all times. A narrow affirmative defense for malfunction events helps to meet this requirement b y ensuring that even where there is a malfunction, the emission limi tations are still applicable and enforceable

20 See , 486 F.2d 427, 433 (D.C. Cir. 1973); Portland Cement Association v. Ruckelshaus , 486 F.2d 375 (D.C. Cir. 1973).

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Page 41 of 339 through injunctive relief. Several courts have agreed with this approach. 21 Because the Petitioner questioned the legal basis for affirmative defense provisions in SIPs, the EPA wants to reiterate the basis for its recommendations concerning such provisions. Starting with the 1982 SSM Guidance, the EPA has made a series of recommendations concerning how states might address violations of SI P provisions consistent with CAA requirements in the event of malfunctions . In the 1982 SSM Guidance, the EPA recommended the exercise of enforcement discretion. Subsequently , in the 1983 SSM Guidance, the EPA expanded on this approach by recommending that a state could elect to adopt SIP provisions providing parameters for the exercise of enforcement discretion by the state's personnel. In the 1999 SSM Guidance, the EPA recognized the use of an affirmative defense as a permissible method for addressing excess emissions that were bey ond the control of the owner or operator of the source and recommended parameters that should be included as part of such an affirmative defense in order to ensure that it would be available onl y in certain narrow circumstances. The EPA interprets the provisions in CAA section 110(a) to allow the use of narrowl y tailored affirmative defense provisions in SIP provisions. In particular, CAA 21 See , Luminant Generation Co . v . EPA , No. 10 - 60934, 2012 WL4841615 (5th Cir. Oct. 12, 2012) (upholding the EPA's approval of an affirmative defense applicable during malfunctions in a SIP submission as a permissible interpretation of the statute under Chevron step 2 anal ys is); Mont. Su lphur &Chemical Co. v. EPA , 666 F.3d 1174, 1191 - 93 (9th Cir. 2012) (upholding the EPA's creation of an affirmative defense applicable during malfunctions in a FIP); Ariz. Public Service Co. v. EPA , 562 F.3d 1116, 1130 (9th Cir. 2009) (upholding the EPA's creation of an affirmative defense applicable during malfunctions in a FIP).

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Page 42 of 339 section 110(a) requires each state to have a SIP that provides for the attainment, maintenance, and enforcement of the NAAQS, protects PSD increments, protects visibi lity , and meets the other requirements of the CAA. These statutory provisions include the explicit requirements that SIPs contain emission limitations in accordance with section 110(a)(2)(A) and that these emission limitations must apply continuously

in ac cordance with CAA section 302(k). The CAA is silent as to whether or not states may elect to create affirmative defense provisions in SIPs. In light of the ambiguity created b y this silence, the EPA has interpreted the CAA to allow affirmative defense prov isions in certain narrowl y prescribed circumstances. While recognizing that there is some ambiguit y in the statute, the EPA also recognizes that there are some limits imposed by the overarching statutory requirements such as the obligation that SIPs provid e for the attainment and maintenance of the NAAQS. Thus, the EPA believes that in order for an affirmative defense provision to be consistent with the CAA, it: (i) has to be narrowl y drawn to address only

those excess emissions that are unavoidable; (ii) c annot interfere with the requirement that the emission limitations apply continuously

( i.e. , cannot provide relief from injunctive relief); and (iii) cannot interfere with the overarching requirements of the CAA, such as attaining and maintaining the NAAQS . 22 The EPA believes this interpretation is reasonable because it does not interfere 22 See, e.g. , "Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities," 75 FR 26892 at 26895 (May

13, 2010). In this proposed rule, the EPA explained 12 specific considerations that justified the proposed approval of the affirmative defense for unplanned events in the state's SIP submission as consistent with the requirements of the CAA.

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Page 43 of 339 with the overarching goals of title Iof the CAA, such as attainment and maintenance of the NAAQS, and at the same time recognizes that, despite best efforts of sources, t echnology

is fallible. The EPA disagrees with the suggestion that an affirmative defense will encourage lax behavior by sources and, in fact, believes the opposite. The potential relief from monetary

penalties for violations in many cases may

serve as an i ncentive for sources to be more diligent to prevent and to minimize excess emissions in order to be able to qualify

for the affirmative defense. An underlying premise of an affirmative defense provision for malfunctions is that the excess emissions are ent irel y bey ond the control of the owner or operator of the source. First, a malfunction is a sudden and unavoidable event that cannot be foreseen or planned for. As explained in the 1999 SSM Guidance, the EPA considers malfunctions to be "sudden, unavoidable , and unpredictable in nature." 23 In order to establish an affirmative defense for a malfunction, the recommended criteria specify that the source, among other things, must have been appropriatel y designed, operated, and maintained to prevent such an event, and the source must have taken all practicable steps to prevent and to minimize the excess emissions that result from the malfunction. Through the criteria recommended in the 1999 SSM Guidance for approvable affirmative defense provisions for malfunctions , the EPA reflected its view that approvable provisions should be narrowl y drawn and should be restricted to events bey ond the control of the owner or operator of the source. 24 The EPA

23 See , 1 999 SSM Guidance at Attachment p. 4. 24 Id . at 3 - 4.

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Page 44 of 339 recommends that states consider 10 specific criteria in such affirmative defense provisions. Unlike the EPA's proposed response to the request to rescind its SSM Policy with respect to affirmative defenses for malfunctions, the EPA proposes to grant the Petition with respect to its interpretation of the CAA concerning affirmative defense for excess emissions during startup and shutdown events. Accordingl y, the EPA is also proposing to issue a SIP call for SIP provisions indentified in the Petition that provide an affirmative defense for excess emissions during planned events, such as startup and shutdown. The legal and factual rationale for an affirmative defense provision for malfunctions does not translate to planned events such as startup and shutdown. By definition, the owner or operator of a source can foresee and plan for startup and shutdown events. Because these events are planned and predictable, the EPA believes that air agencies should be able to establish, and sources should be able to compl y with, the applicable emission limitations or other control measures during these periods of time. In addition, a source can be designed, operated, and maintained to control and to minimize emissions during such normal expected events. If sources in fact cannot meet the otherwise applicable emission limitations during planned events such as startup and shutdown, then an air agency can develop specific alternative requirements that apply during such periods, so long as they meet other applicable CAA requirements. Providing an affirmative defense to sources for violations that they could reasonabl y anticipate and prevent is not consistent with the theory that supports allowing such affirmative defenses for malfunctions, i.e. , that where excess emissions are entirely

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Page 45 of 339 bey ond the control of the owner or operator of the source it is appr opriate to provide limited relief to claims for monetary penalties. The EPA has previously made the distinction that excess emissions that occur during maintenance should not be accorded special treatment, because sources should be expected to comply with emission limitations during maintenance activities as they are planned and within the control of the source. 25 The EPA believes that same rationale applies to periods of startup and shutdown. 26 The EPA acknowledges that its 1999 SSM Guidance explicitly reco gnized that states could elect to create affirmative defense provisions applicable to startup and shutdown events. However, the EPA has reevaluated the justification that could support an affirmative defense during these activities and now believes that th e ability and obligation of sources to anticipate and to plan for routine events such as startup and shutdown negates the justification for relief from monetary penalties for violations during those events. Moreover, the EPA notes that the various criteria recommended for affirmative defenses for startup and shutdown to a large extent alread y mirrored those

25 See "Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities," 75 FR 68989 at 68992 (Nov. 10, 2010). 26 In Luminant Generation Co. v. EPA, No. 10 - 60934, 2012 W L 4841615 (5th Cir. Oct. 12, 2012), the court upheld the EPA's disapproval of an affirmative defense provision in a SIP submission that pertained to "planned activities," which included startup, shutdown, and maintenance . The EPA disapproved this provision, in part because it provided an affirmative defense for maintenance. The court rejected challenges to the EPA's disapproval of this provision, holding that under Chevron step 2, the EPA's interpretation of the C AA was reasonable.

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Page 46 of 339 relevant for malfunctions, such as: (i) the event could not have been prevented through careful planning and design; (ii) the excess emissions were not part of a recurring pattern; and (iii) if the excess emissions resulted from by passing a control measure, they were unavoidable to prevent loss of life, personal injury , or severe propert y damage. 27 As a practical matter, man y startup and shutdown events th at could have met these conditions recommended in the 1999 SSM Guidance are likely to have been associated with malfunctions, and the EPA explicitly stated that if the excess emissions "occur during routine startup or shutdown periods due to a malfunction, then those instances should be treated as malfunctions." The key distinction remains, however, that normal source operations such as startup and shutdown are planned and predictable events. For this reason, the EPA is proposing to revise its SSM Policy to reflect its interpretation of the CAA that affirmative defense provisions applicable during startup and shutdown are not appropriate. Further support for distinguishing between malfunctions and planned events such as startup and shutdown is to be found i n the Petitioner's argument that affirmative defense provisions in SI Ps usurp the role of courts to decide liability and to assess penalties for violations under CAA section 113. The Petitioner views CAA sections 113(b) and 113(e) as statutory bars to any form of affirmative defense provision, regardless of the nature of the event. Rather than supporting the Petitioner's conclusion, however, the EPA believes that this argument illustrates why it is appropriate to allow

27 See 1999 SSM Guidance at Attachment 5 - 6.

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Page 47 of 339 affirmative defenses for malfunctions but not for planned events such as startup and shutdown. At the outset, the EPA disagrees with the Petitioner's view that CAA section 113(b) explicitly

precludes air agencies from adopting, and the EPA from approving, SIP emission limitations for sources that distinguish between conduct such that some violations should only

be subject to injunctive relief rather than injunctive relief and monetary penalties. Section 110(a)(2)(A) of the CAA requires states to develop SI Ps that "include enforceable emission limitations . . . as may be necessary

or appropriate to meet the requirements of" the CAA. However, CAA section 302(k) defines "emission limitation" very

broadl y t o require limits on "the quantity , rate, or concentration of emissions of air pollutants on a continuous basis." Significantl y, the latter definition does not on its face preclude provisions devised by the state that may

distinguish between violations based on the conduct of the source. The CAA is silent on whether or not a state may include an af

firmative defense provision in its SIP. The EPA believes that the CAA thus provides states with discretion in developing plans that meet statutory and regulatory requirements, such as providing for attainment and maintenance of the NAAQS, as long

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Page 48 of 339 as they are consistent with CAA requirements. 28 The EPA believes that creating a narrowl y tailored affirmative defense for malfunctions is within an air agency 's authorit y, and that approving such a provision to make it part of the SIP is within the EPA's authority . An affirmative defense provision can be a means of striking a reasonable balance between the requirements of the CAA and the realities and limits of technology . Air agencies and the EPA must ensure continu ous compliance, but must also recognize that, des pite diligent efforts by sources, practical realities may

create difficulties in meeting applicable emission limitations continuously . The EPA's SSM Policy

recognizes an approach under which air agencies may , if they elect, create two tiers of liability f or violations due to excess emissions during periods of malfunction: (i) a lesser level of liability for violations for which the source could only

be subject to injunctive relief (where it could meet the requirements for an affirmative defense with respec t to penalties); and (ii) a higher level of liability for violations for which the source could be subject to both injunctive relief and monetary penalties (where it could not meet the requirements for an affirmative defense with

28 States have primary

responsibility

for developing SIPs in accordance with CAA section 107(a). An air agency 's discretion to develop SIP provisions is not unbounded, however, and the EPA's responsibility under CAA section 110(k), section 110(l), and sectio n 193, to review SIP submissions prospectivel y, and under CAA section 110(k)(5) retrospectivel y, is to determine whether the SIP provisions in fact meet all applicable statutory and regulatory

requirements. Thus, for example, the EPA does not believe that an air agency

has discretion to create an exemption for excess emissions during SSM events, because such exemption would conflict with fundamental CAA requirements for SIPs.

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Page 49 of 339 respect to penalties). Th e EPA also disagrees with the Petitioner's argument that the inclusion of penalty factors in CAA section 113(e) is a statutory bar to all affirmative defense provisions in SIPs. The EPA believes that these statutory factors appl y onl y for violations for wh ich the regulations approved into the SIP contemplate monetary penalties. A court, in determining whether there is a violation of the SIP provision, and whether the source has met the conditions for an affirmative defense, cannot change the forms of relief for violations provided in the approved SIP. Approval of the regulation into the SIP by the EPA thus affects the availability of monetary

penalties for the violation in the first instance. The EPA reiterates, however, that such a provision would not be co nsistent with the requirements of the CAA if it did not preserve the availability for injunctive relief in the event of violations. Failure to provide in a SIP provision for an y form of enforcement for excess emissions during SSM events would be equivalent to the ty pe of provision that excused excess emissions during malfunction from compliance with standards under CAA section 112 that the court rejected in Sierra Club v. EPA . 29 The EPA's longstanding position with regard to SIPs is that blanket exemptions f rom compliance are not consistent with the requirements such as attainment and maintenance of the NAAQS because they

eliminate much of the incentive that sources would otherwise have to minimize the likelihood of violations and to minimize the extent of a violation once it occurs. Elimination of potential availability of injunctive relief for violations would be

29 551 F.3d 1019, 1021 (D.C. Cir. 2008).

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Page 50 of 339 fundamentall y inconsistent with the requirement that there may be enforcement to cause the installation of control measures, changes of operation, or other changes necessary at the source in order to bring the source into compliance with the applicable emission limitations to meet CAA requirements. The EPA likewise disagrees with the Petitioner's claim that the elements for establishing an affirmative defense in a SIP provision supplant the mandatory factors that Congress provided for determining the amount of penalties to be assessed in CAA section 113(e). Under CAA section 110(a)(2), states have the responsibility to devise enforceable emission limitations for sources and to develop a program for their implementation and enforcement. The CAA does not require that air agencies treat all violations eq ually . In devising its SIP, an air agency has authority

to determine what constitutes a violation and to distinguish between different ty pes of violations, within the bounds allowed by the CAA and applicable regulations. As the EPA has long recognized in i ts SSM Policy , circumstances surrounding a given violation may justify distinguishing between those where injunctive relief is appropriate versus those where both injunctive relief and monetary penalties are appropriate. Providing an affirmative defense to monetary penalties in certain circumstances does not negate the factors that Congress provided in CAA section 113(e). In the event that a source violates its emission limitations and fails to meet the requirements of an available defense in the SIP, then it is the court that determines the level of monetary penalties appropriate using the statutory factors in CAA section 113(e). The EPA notes that the provisions of CAA section 304 relevant to citizen

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Page 5 1 of 339 enforcement provide additional support for the view that air agencies can determine that certain violations should not be subject to monetary penalties. Section 304(a) explicitly provides that the court in an enforcement proceeding has jurisdiction to enforce emission limits, to issue orders, "and to apply an y appropriate civil penalties." The EPA believes that monetary

penalties that might otherwise be an available response to a violation cannot be "appropriate" if an air agency has properly

created an affirmative defense provision that eliminates such penalti es for violations under specified circumstances in the SIP provision that is before the court. The mere fact that CAA section 113(b) includes penalties as a potential form of relief for violations in general does not mean that air agencies must construct S IP requirements that in all instances require monetary penalties. As with CAA section 110(a) governing SI P provisions in general, neither CAA section 113(b) nor CAA 113(e) expressl y addresses the availability of an affirmative defense. Thus, the EPA belie ves it is reasonable to interpret these specific provisions in light of the need to balance the requirement for continuous compliance with emission limitations in order to meet overarching goals of the statute such as attainment and maintenance of the NAAQ S with the fact that even the most diligent source may not be able to meet emission limitations 100 percent of the time. The EPA has recognized that it is permissible for an air agency to provide narrowly

drawn affirmative defense provisions in SIPs that p rovide relief from monetary penalties for violations that occur due to circumstances bey ond the control of the source. When a source has been properl y designed, operated, and maintained, and has taken action to prevent and to minimize the excess emissions, such relief may be warranted. Also, as with CAA section 110(a), the

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Page 52 of 339 EPA does not believe that CAA section 113's silence with regard to affirmative defense provisions should be interpreted to allow broad use of such provisions during planned events that ar e within the control of the source. The enforcement provisions of the CAA must be read in light of the goals and purposes of the provisions with which they are meant to ensure compliance. As provided above, the EPA believes that the use of an affirmative d efense is appropriate onl y in those narrow circumstances where it is necessary to harmonize the competing interests of the CAA regarding continuous compliance and the limits or fallibility of technology . In summary , the EPA believes that the CAA provides air agencies in the first instance in their role as the developer of SIPs, and then the EPA in its role as approver of SIPs, some discretion in defining the substantive requirements that are necessary to attain and maintain the NAAQS, protect PSD increment s, and protect visibility , or to meet other CAA requirements. Until the air agency takes action to create a SIP, or the EPA takes action to create a FIP, that imposes and defines the applicable emission limitations, there is no standard for a source to vio late and thus no conduct for which a court could assess any penalties. The EPA believes that the CAA allows air agencies (or the EPA when it is promulgating a FIP) in defining emission standards to define narrowl y drawn affirmative defenses that provide li mited relief from monetary penalties but not for injunctive relief in specified circumstances. The EPA emphasizes that affirmative defense provisions for malfunctions need to be appropriatel y and narrowly drawn, and thus the SSM Policy makes recommendation s for the t ypes of criteria that would make such a provision consistent with the requirements of the CAA.

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Page 53 of 339 For the foregoing reasons, the EPA is proposing to grant the Petition in part, and to deny the Petition in part, with respect to the Petitioner's req uest that the EPA rescind its SSM Policy

interpreting the CAA to allow affirmative defense provisions in SIPs for excess emissions during SSM events. In addition, the EPA is proposing to grant the Petition in part, and to deny the Petition in part, with re spect to the Petitioner's request that the EPA issue SI P calls for those affirmative defense provisions in specific SIP provisions identified in the Petition. The EPA requests comment on this proposed action. As discus sed in section VII.B of this no tice, the EPA is also restating its recommended criteria for approvable affirmative defenses for malfunctions in SIP provisions consistent with CAA requirements. Further, as discusse d in section IX of this notice, the EPA is proposing to grant or to deny the Pet ition with respect to the specific SIP provisions identified by

the Petitioner as inconsistent with the CAA. **V. Proposed Action in Response to Request for the EPA's Review of Specific**  **Existing SIP Provisions for Consistency with CAA Requirements** A. Petit ioner's Request The Petitioner's second request was for the EPA to find that SIPs "containing an SSM exemption or a provision that could be interpreted to affect EPA or citizen enforcement are substantially inadequate to comply

with the requirements of th e Clean Air Act." 30 Inaddition, the Petitioner requested that if the EPA finds such defects in existing SIPs, the EPA "issue a call for each of the states with such a SI P to revise it in

30 Petition at 14.

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Page 54 of 339 conformity

with the requirements or otherwise remedy these defective SI Ps." 31 In support of this request, the Petitioner expressed concern that man y S IP s contain provisions that are inconsistent with the requirements of the CAA. According to the Petitioner, these provisions fall into two general categories: (1) exemptions f or excess emissions by

which such emissions are not treated as violations; and (2) enforcement discretion provisions that may be worded in such a way that a decision by

the state not to enforce against a violation could be construed b y a court to bar enfor cement by the EPA under CAA section 113, or by citizens under CAA section 304. First, the Petitioner expressed concern that man y SIPs have either automatic or discretionary

exemptions for excess emissions that occur during periods of startup, shutdown, or malfunction. Automatic exemptions are those that, on the face of the SIP provision, provide that any excess emissions during such events are not violations even though the source exceeds the otherwise applicable emission limitations. These provisions prec lude enforcement by the state, the EPA, or citizens , because by definition these excess emissions are defined as not violations. Discretionary exemptions or, more correctly , exemptions that may arise as a result of the exercise of "director's discretion" b y state officials, are exemptions from an otherwise applicable emission limitation that a state may grant on a case - by - case basis with or without any public process or approval by the EPA, but that do purport to bar enforcement by the EPA or citizens . The Petitioner argued that "[e]xemptions that may be granted b y the state do not comply with the

31 Id.

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Page 55 of 339 enforcement scheme of title Iof the Act because they undermine enforcement by the EPA under section 113 of the Act or b y citizens under section 304." The Petitio ner explained that all such exemptions are fundamentall y at odds with the requirements of the CAA and with the EPA's longstanding interpretation of the CAA with respect to excess emissions in SIPs. SIPs are required to include emission limitations designed to provide for the attainment and maintenance of the NAAQS and for protection of PSD increments. The Petitioner emphasized that the CAA requires that such emission limitations be "continuous" and that they be established at levels that achieve sufficient emissions control to meet the required CAA objectives when adhered to b y sources. Instead, the Petitioner contended, exemptions for excess emissions often result in real world emissions that are far higher than the level of emissions envisioned and planned for in the SIP. Citing the EPA's own guidance and past administrative actions, the Petitioner explained that exemptions from otherwise applicable emission limitations can allow large amounts of additional emissions that are not accounted for in SIPs and that exemptions thus "create large loopholes to the Act's fundamental requirement that a SIP must provide for attainment and maintenance of the NAAQS and PSD increments." Second, the Petitioner expressed concern that many SI Ps have provisions that may have been intended to govern only the exercise of enforcement discretion by the state's own personnel but are worded in a way that could be construed to preclude enforcement by the EPA or citizen s if the state elects not to enforce against the violation. The P etitioner contended that "an y S IP provision that purports to vest the determination of whether or not a violation of the SI P has occurred with the state enforcement authority is

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Page 56 of 339 inconsistent with the enforcement provisions of the Act." In support of this c ontention, the Petitioner quoted from the EPA's recent action to rectify such a provision in the Utah SIP: SIP provisions that give exclusive authority to a state to determine whether an enforcement action can be pursued for an exceedance of an emission l imit are inconsistent with the CAA's regulatory scheme. EPA and citizens, and an y court in which they seek to file an enforcement claim, must retain the authority to independently

evaluate whether a source's exceedance of an emission limit warrants enforce ment action. 32 After articulating these overarching concerns with existing SIP provisions, the Petitioner requested that the EPA evaluate specific SI P provisions identified in the separate section of the Petition titled, "Anal ys is of Individual States' SSM Provisions." 33 In that section, the Petitioner identified specific provisions in the SIPs of 39 states that the Petitioner believed to be inconsistent with the requirements of the CAA and explained in detail the basis for that belief. In the conclusion sec tion of the Petition, the Petitioner listed the SIP provisions in each state for which it seeks a specific remedy . B. The EPA's Response In general, the EPA agrees with key statements of the Petitioner. The EPA's longstanding interpretation of the CAA is that automatic exemptions from emission limitations in SIPs are impermissible because they are inconsistent with the fundamental

32 See , "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 75 FR 70888 at 70893 (Nov. 19, 2010) (proposed SIP call, inter alia , to rectify

an enforcement discretion provision that in fact appeared to bar enforcement b y the EPA or citizens if the state decided not to enforce). 33 Petition at 17.

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Page 57 of 339 requirements of the CAA. The EPA has reiterated this point in its guidance documents and in rulemaking actions numerous times. The EPA has also acknowledged that it previously

approved some SIP provisions that provide such exemptions in error and encouraged states to rectify them. 34 The EPA also has a longstanding interpretation of the CAA that does not allow "director's discreti on" provisions in SI Ps if they provide unbounded discretion to allow what would amount to a case - specific revision of the SI P without meeting the statutory requirements of the CAA for SI P revisions. Moreover, the CAA would not allow approval of a SIP provi sion that provided director's discretion to create discretionary exemptions for violations when the CAA would not allow such exemptions in the first instance. In addition, the EPA's longstanding interpretation of the CAA is that SI Ps may contain provision s concerning "enforcement discretion" b y the air agency 's own personnel, but such provisions cannot bar enforcement by the EPA or through a citizen s uit . 35 In the event such a provision could be construed by a court to preclude EPA or citizen enforcement, that provision would be at odds with fundamental requirements of the CAA pertaining to enforcement. Although the EPA does not agree with the Petitioner concerning all affirmative defense provisions in SIPs, the EPA does agree that such provisions have to me et CAA requirements.

34 See, e.g. , 1982 SSM Guidance at 1. 35 See, e.g. , 1983 SSM Guidance at Attachment p. 2.

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Page 58 of 339 The EPA also agrees that automatic exemptions, discretionary exemptions via director's discretion, ambiguous enforcement discretion provisions that may be read to preclude EPA or citizen enforcement, and inappropriate affirmative defe nse provisions can interfere with the overarching objectives of the CAA, such as attaining and maintaining the NAAQS, protection of PSD increments, and protection of visibility . Such provisions in SIPs can interfere with effective enforcement by air agenci es, the EPA, and the public to assure that sources compl y with CAA requirements, contrary to the fundamental enforcement structure provided in CAA sections 113 and 304. The EPA's agreement on these broad principles, however, does not necessarily mean that the EPA agrees with the Petitioner's views as to each of the specific SIP provisions identified as problematic in the Petition. The EPA has undertaken a comprehensive review of those specific SIP provisions to determine whether they are consistent with CAA requirements, and if they are not consistent, whether the provisions are substantiall y inadequate to meet CAA requirements and thus warrant action to rectify. The EPA has carefully

evaluated the concerns expressed by the Petitioner with respect to ea ch of the identified SIP provisions and has considered the specific remedy sought b y the Petitioner. In man y instances, the EPA tentatively concurs with the Petitioner's analy sis of the provision in question and accordingl y is proposing to grant the Petiti on with respect to that provision and simultaneously proposing to make a finding of substantial inadequacy

and to issue a SI P call to rectify the SIP inadequacy . In other instances, however, the EPA tentatively disagrees with the Petitioner's analy sis of the provision and thus is proposing to den y the Petition with respect to that provision and to

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Page 59 of 339 take no further action. The EPA's evaluation of each of the provisions identified in the Petition is summarized in section IX o f this notice , and more detailed e xplanation of the EPA's evaluation of each provisions is provided in the technical support document accompan yi ng this proposal. For the reasons discuss ed in section IX of th is notice , the EPA is proposing to grant the Petition in part, and to deny the Peti tion in part, with respect to the specific existing SIP provisions for which the Petitioner requested a remed y. The EPA requests comment on the proposed actions on these specific SIP provisions. **VI. Proposed Action in Response to Request that the EPA Limi**  **t SIP Approval to the Text of State Regulations and Not Rely upon Additional Interpretive Letters**  **from the State** A. Petitioner's Request The Petitioner's third request was that when the EPA evaluates SI P revisions submitted by

a state, the EPA should require "all terms, conditions, limitations and interpretations of the various SSM provisions to be reflected in the unambiguous language of the SIPs themselves." 36 The Petitioner expressed concern that the EPA has previously

approved SIP submissions with prov isions that "b y their plain terms" do not appear to comply

with the EPA's interpretation of CAA requirements embodied in the SSM Policy

and has approved those SIP submissions in reliance on separate "letters of

36 Petition at 16.

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Page 60 of 339 interpretation" from the state that construe the provisions of the SI P submission itself to be consistent with the SSM Policy . 37 Because of this reliance on interpretive letters, the Petitioner argued that "such constructions are not necessarily apparent from the text of the provisions and their enfor ceability may be difficult and unnecessarily complex and inefficient." 38 In support of this request, the Petitioner alleged that past SIP approvals related to Oklahoma and Tennessee illustrate the practical problems that can arise from reliance on interpretive letters. With respect to Oklahoma, the Petitioner asserted that a 1984 approval of a SIP submission from that state addressing SSM provisions required two letters of interpretation from the state in order for the EPA to determine that the actu al regulatory

text in the SIP submission was sufficiently consistent with CAA requirements pertaining to SSM provisions. 39 The Petitioner conceded that the Federal Register notices for the proposed and final actions to approve the Oklahoma SIP submission di d quote from the state's letters but expressed concern that those letters were not actually "promulgated as part of the Oklahoma SIP." With respect to Tennessee, the Petitioner pointed to a more recent action concerning the redesignation of the Knoxville area to attainment for the 1997 8 - hour

37 Petition at 14. 38 Petition at 15. 39 See "Revision to Oklahoma Regulation 1.5

– Reports Required, Excess Emissions During Startup, Shutdown and Malfunction of Equipment," 49 FR 3084 (Jan. 25, 1984). At the time of the proposed and final action, the operative EPA guidance was the 1983 SSM Guidance.

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Page 61 of 339 ozone NAAQS. 40 In this action, the EPA evaluated whether the SIP for that state met requirements necessary

for redesignation from nonattainment to attainment in accordance with CAA section 107(d)(3). 41 Again, the Petitioner noted that in order to complete that redesignation action, the EPA had to request that both the state and the local air planning officials confirm officially that the existing SIP provisions do not in fact provide an exemption for excess emissio ns during SSM events and that the provisions should not be interpreted to do so. The implication of the Petitioner's observation is that if the SIP provisions had been clear and unambiguous in the first instance, interpretive letters would not have been ne cessary . By contrast, the Petitioner pointed to the more recent SI P call action for Utah in which the EPA itself noted that it was unclear why the EPA had originally approved a particular SIP provision relevant to SSM events. 42 Specificall y, the Petitioner quoted the EPA's own statement that "thirty y ears later, it is not clear how EPA reached the conclusion that exemptions granted b y Utah would not apply as a matter of federal law or whether a court would honor EPA's interpretation . . . " 43 The Petitioner argued that this situation where the EPA itself was unable to ascertain why a SIP provision was previously

approved as meeting CAA requirements illustrates the concern that "the state's 40 Peti tion at 15. 41 See , "Redesignation of the Knoxville 1997 8 - Hour Ozone Nonattainment Area to Attainment," 76 FR 12587 (Mar. 8, 2001). 42 Petition at 15 - 16. 43 See , "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 75 FR 70888 at 70890 (Nov. 19, 2010).

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Page 62 of 339 interpretation of its regulations may (or may not) be known by

parties attempting to enforce the SIP decades after the provisions were created." 44 From these examples, the Petitioner drew the conclusion that reliance on letters of interpretation from the state, even if reflected in the Federal Register notice as part of the explicit basis for the SIP approval, is insufficient. The Petitioner argued that such interpretations, if they

are not plain on the face of the state regulations themselves, should be set forth in the SIP as reflected in the Code of Federal Regulations. Th e Petitioner advocated that all parties should be able to rel y on the terms of the SIP as reflected in the Code of Federal Regulations, or alternativel y on the SIP as shown on an EPA Internet webpage, rather than having to rel y on other interpretive letter s that may be difficult to locate. The Petitioner's preferred approach, however, was that "all terms, conditions, limitations and interpretations of the various SSM provisions be reflected in the unambiguous language of the SIPs themselves." B. The EPA's Response The EPA agrees with the core principle advocated by the Petitioner, i.e. , that the language of regulations in SIPs that pertain to SSM events should be clear and

44 Petition at 16. The Petitioner assumed that the original SIP action was one in which the EPA must have relied on an interpretive letter from the state as a basis for the prior SIP approval. In fact, however, the EPA recognized that the EPA statement in the prior final action approving the SIP revision in 1980 concerning federal law superseding incorrect state law embodied in the SIP was incorrect. Moreover, subsequent case law has illustrated that co urts will not decide that CAA requirements automaticall y override existing SIP provisions, regardless of whether those SI P provisions met CAA requirements at the time of the approval or since. See , Sierra Club, et al. v. Georgia Power Co. , 443 F.3d 1346, 1 354 (11th Cir. 2006).

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Page 63 of 339 unambiguous. This is necessary as a legal matter but also as a matter of fairness to all parties, including the regulated entities, the regulators, and the public. In some cases, the lack of clarity

may be so significant that amending the regulation may be warranted to eliminate the potential for confusion or misunderstanding about applic able legal requirements that could interfere with compliance or enforcement. Indeed, as noted by the Petitioner, the EPA has requested that states clarify ambiguous SIP provisions when the EPA has subsequently determined that to be necessary . 45 However, th e EPA believes that the use of interpretive letters to clarify perceived ambiguit y in the provisions in a SIP submission is a permissible, and sometimes necessary , approach under the CAA. Used correctly , and with adequate documentation in the Federal Regis ter and the docket for the underlyingrulemaking action, reliance on interpretive letters can serve a useful purpose and still meet the enforceability concerns of the Petitioner. Regulated entities, regulators, and the public can readil y ascertain the exis tence of interpretive letters relied upon in the EPA's approval that would be useful to resolve an y perceived ambiguity. By virtue of being part of the stated basis for the EPA's approval of that provision, the interpretive letters necessarily establish th e correct interpretation of an y arguably ambiguous SIP provision. In addition, reliance on interpretive letters to address concerns about perceived ambiguit y can often be the most efficient and timely way to resolve concerns about the correct meaning of r egulatory provisions. Both air agencies and the EPA are required to 45 See, e . g. , "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 76 FR 21639 at 21648 (Apr. 18, 2011).

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Page 64 of 339 follow time - and resource - intensive administrative processes in order to develop and evaluate SIP submissions. It is reasonable for the EPA to exercise its discretion to use interpretive l etters to clarify concerns about the meaning of regulatory provisions, rather than to require air agencies to reinitiate a complete administrative process merel y to resolve perceived ambiguity in a provision in a SIP submission. 46 Inparticular, the EPA con siders this an appropriate approach where reliance on such an interpretive letter allows the air agency

and the EPA to put into place SI P provisions that are necessary to meet important CAA objectives and for which unnecessary delay would be counterproduct ive. For example , where an air agency is adopting emission limitations for purposes of attaining the NAAQS in an area, a timely letter from the air agency clarifying that an enforcement discretion provision is applicable only to air agency

enforcement pers onnel and has no bearing on enforcement b y the EPA or the public could help the area reach attainment more expeditiously than requiring the air agency to undertake a time - consuming administrative process to make a minor change in the regulatory text. Thus , to the extent that the Petitioner intended the Petition on this issue to be a request for the EPA never to use interpretive letters as part of the basis for approval of any SIP submission, the EPA disagrees with the Petitioner and accordingl y is proposin g to deny the request. The EPA notes that it is already the EPA's practice to assure that an y 46 CAA section 110(k) directs the EPA to act on SI P submissions and to a pprove those that meet statutory

and regulatory

requirements. Implicit in this authority is the discretion, through appropriate notice - and - comment rulemaking, to determine whether or not a given SIP provision meets such requirements, in reliance on the inf ormation that the EPA considers relevant for this purpose.

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Page 65 of 339 interpretive letters are correctl y and adequately reflected in the Federal Register and are included in the rulemaking docket for a SIP approval. There are multi ple reasons why the EPA does not agree with the Petitioner with respect to the alleged inadequacy of using interpretive letters to clarify specific ambiguities SIP regulations, provided this process is done correctly . First, under section 107(a), the CAA g ives air agencies both the authority and the primary

responsibility

to develop SIPs that meet applicable statutory and regulatory

requirements. However, the CAA generally

does not specify

exactl y how air agencies are to meet the requirements substantively , nor does the CAA specify that air agencies must use specific regulatory terminology , phraseology , or format, in provisions submitted in a SI P submission. Air agencies each have their own requirements and practices with respect to rulemaking, making flexib ility

toward terminology

on the EPA's part appropriate. As a prime example relevant to the SSM issue, CAA section 110(a)(2)(A) requires that a state's SIP shall include "enforceable emission limitations and other control measures, means, or techniques (in cluding economic incentives such as fees, marketable permits, and auctions of emissions rights) as well as schedules and timetables for compliance as may

be necessary

or appropriate to meet the applicable requirements of" the CAA. Section 302(k) of the CAA further defines the term "emission limitation" in important respects but nevertheless leaves room for variations of approach: ...a requirement established by the State or Administrator which limits the quantity , rate, or concentration of emissions of air pollutants on a continuous basis, including an y requirement related to the operation or maintenance of a source to assure continuous emissions reduction, and an y design, equipment, work practice or operational standard promulgated

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Page 66 of 339 under [the CAA]. Even this most basic requirement of SIPs, the inclusion of enforceable "emission limitations," allows air agencies discretion in how to structure or word the emission limitations, so long as the provisions meet fundamental legal requirements. 47 Thus, by the expli cit terms of the statute and b y design, air agencies generall y have considerable discretion in how they

elect to structure or word their state regulations submitted to meet CAA requirements in a SIP. Second, under CAA section 110(k), the EPA has both the authority and the responsibility

to assess whether a SIP submission meets applicable CAA and regulatory requirements. Given that air agencies have authority and discretion to structure or word SIP provisions as they

think most appropriate so long as they m eet CAA and regulatory requirements, the EPA's role is to evaluate whether those provisions in fact meet those legal requirements. 48 Necessarily , this process entails the exercise of judgment concerning the specific text of regulations, with regard both to content and to clarity . Because actions on SIP submissions are subject to notice - and - comment rulemaking, there

47 The EPA notes that notwithstanding discretion in wording in regulatory provisions, many words have specific recognized legal meaning whether by statute, regulation, case law, dictionary

definiti on, or common usage. For example, the term "continuous" has a specific meaning that must be complied with substantively , however the state may elect to word its regulatory

provisions. 48 See, e.g. , Luminant Generation Co. v. EPA , No. 10 - 60934, 2012 WL4841 615 (5th Cir. Oct. 12, 2012) (upholding the EPA's disapproval in part of affirmative defense provision with unclear regulatory

text); US Magnesium, LLC v. EPA , 690 F.3d 1157, 1170 (10th Cir. 2012) (upholding the EPA's issuance of a SIP call to clarify a pr ovision that could be interpreted in a way

inconsistent with CAA requirements).

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Page 67 of 339 is also the opportunity

for other parties to identify SIP provisions that they

consider problematic and to bring to the EPA's attention any conce rns about ambiguity in the meaning of the SIP provisions under evaluation. Third, careful review of regulatory provisions in a SI P submission can reveal areas of potential ambiguity . It is essential, however, that regulations are sufficientl y clear that r egulated entities, regulators, and the public can understand the SIP requirements. Where the EPA perceives ambiguit y in draft SIP submissions, it endeavors to resolve those ambiguities through interactions with the air agency in question even in advance of the SIP submission. On occasion, however, there may still remain areas of regulatory

ambiguit y in a SIP submission's provisions that the EPA identifies, either independentl y or as a result of public comments on a proposed action, for which resolution is b oth appropriate and necessary as part of the rulemaking ac tion. In such circumstances, the ambiguit y ma y be so significant as to require the air agency to revise the regulatory

text in its SIP submission in order to resolve the concern. At other times, ho wever, the EPA may determine that with adequate explanation from the state, the provision is sufficiently clear and complies with applicable CAA and regulatory requirements. In some instances, the air agency may suppl y that extra explanation in an official letter from the appropriate authorit y to resolve an y potential ambiguity. When the EPA bases its approval of a SIP submission in reliance on the air agency 's official interpretation of the provision, that reading is explicitly incorporated into the EPA's action and is memorialized as the proper intended reading of the provision. For example, in the Knoxville redesignation action that the Petitioner noted, the

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Page 68 of 339 EPA took careful steps to ensure that the perceived ambiguit y was substantively resolved and full y reflected in the rulemaking record, i.e. , through inclusion of the interpretive letters in the rulemaking docket, quoting relevant passages from the letters in the Federal Register , and carefull y evaluating the areas of potential ambiguit y in response to public comments on a provision - by - provision basis. Finally , the EPA notes that while it is possible to reflect or incorporate interpretive letters in the regulatory text of the CFR, there is no requirement to do so in all actions and there are other way s for the public to have a clear understanding of the content of the SIP. First, for each SI P, the CFR contains a list or table of actions that reflects the various components of the approved SIP, including information concerning the submission of, and the EPA's action approving, each component. With this information, interested parties can readil y locate the actual Federal Register notice in which the EPA will have explained the basis for its approval in detail, including an y interpretive letters that may h ave been relied upon to resolve an y potential ambiguit y in the SIP provisions. With this information, the interested part y can also locate the docket for the underl yi ng rulemaking and obtain a cop y of the interpretive letter itself. Thus, if there is an y d ebate about the correct reading of the SIP provision, either at the time of the EPA's approval or in the future, it will be possible to ascertain the mutual understanding of the air agency

and the EPA of the correct reading of the provision in question at the time the EPA approved it into the SIP. Most importantly , regardless of whether the content of the interpretive letter is reflected in the CFR or simply described in the Federal Register preamble accompanying the EPA's approval of the SI P submission, this

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Page 69 of 339 mutual understanding of the correct reading of that provision upon which the EPA relied will be the reading that governs, should that later become an issue. The EPA notes that the exist ence of, or content of, an interpretive letter that is part of the basis for the EPA's approval of a SIP submission is in reality analogous to many other things related to that approval. Not every thing that may

be part of the basis for the SIP approval in the docket, including the proposal or final preambles, the technical support documents, responses to comments, technical anal ys es, modeling results, or docket memoranda, will be restated verbatim , incorporated into, or referenced in the CFR. These background materials remain part of the basis for the SIP approval and remain available should they be needed for any

purpose. To the extent that there is any question about the correct interpretation of an ambiguous provision in the future, an interested part y wi ll be able to access the docket to verify the correct meaning of SIP provisions. With regard to the Petitioner's concern that either actual or alleged ambiguity in a SIP provision could impede an effective enforcement action, the EPA believes that its cur rent process for evaluating SIP submissions and resolving potential ambiguities, including the reliance on interpretive letters in appropriate circumstances with correct documentation in the rulemaking action, minimizes the possibility for any such ambigui ty in the first instance. To the extent that there remains any perceived ambiguity , the EPA concludes that regulated entities, regulators, the public , and ultimately the courts, have recourse to the administrative record to shed light on and resolve an y su ch ambiguit y as explained above.

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Page 70 of 339 For the foregoing reasons, the EPA is proposing to deny the Petition on this issue concerning reliance on interpretive letters in actions on SI P submissions. The EPA requests comment on this proposed action. **VII. Clarific**  **ations, Reiterations, and Revisions to the EPA's SSM Policy** A. Applicability of Emission Limitations During Periods of Startup and Shutdown The EPA's evaluation of the Petition indicates that there is a need to clarify the SSM Policy

with respect to exce ss emissions that occur during periods of planned startup and shutdown or other planned events. The significant number of SIP provisions identified in the Petition that create automatic or discretionary exemptions from emission limitations during startup and shutdown suggests that there may be a misunderstanding concerning whether the CAA permits such exemptions. Although the EPA's stated position on this issue has been consistent since 1977, ambiguit y in some statements in the EPA's guidance documents may have left the misimpression that such exemptions are consistent with the requirements of the CAA. Recent court decisions have indicated that such exemptions for excess emissions during periods of startup and shutdown are not in fact permissible under the C AA. Thus, in acting upon the Petition the EPA is clarifying its interpretation of the requirements of the CAA to forbid exemptions from otherwise applicable emission limitations for excess emissions during planned events such as startup and shutdown in SIP provisions. The EPA believes that any misimpression that exemptions for excess emissions are permissible during planned events such as startup and shutdown may have begun with a statement in the 1983 SSM Guidance. In this guidance, the EPA distinguished between

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Page 71 of 339 excess emissions during unforeseeable events like malfunctions and foreseeable events like startup and shutdown. In drawing distinctions between these broad categories of events, the EPA stated: Startup and shutdown of process equipment are part o f the normal operation of a source and should be accounted for in the planning, design and implementation of operating procedures for the process and control equipment. Accordingl y, it is reasonable to expect that careful and prudent planning and design wi ll eliminate violations of emission limitations during such periods. However, for a few sources there may exist infrequent short periods of excess emissions during startup and shutdown which cannot be avoided. Excess emissions during these infrequent short periods need not be treated as violations providing the source adequately shows that the excess could not have been prevented through careful planning and design and that by passing of control equipment was unavoidable to prevent loss of life, personal inj ury , or severe propert y damage (emphasis added). 49 The phrase "need not be treated as violations" may have been misunderstood to be a statement that the CAA would allow SIP provisions that provide an exemption for the resulting excess emissions, thereb y defining the excess emissions as not a violation of the applicable emission limitations. The EPA did not intend to suggest that SIP provisions that included an actual exemption for excess emissions during startup and shutdown events would be consistent with the CAA; the EPA made this statement in the context of whether air agencies should exercise enforcement discretion and more specifically whether air agencies could elect to have SIP provisions that embodied their own exercise of enforcement discretion in such circumstances. As with any such SIP provisions addressing parameters of the air agency 's own exercise of enforcement discretion, that

49 See , 1983 SSM Guidance at Attachment p. 3.

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Page 72 of 339 exercise of discretion cannot purport to bar enforcement by the EPA or through a citizen s uit for excess emissions that must be treated as violations to meet CAA require ments. Thus, the use of the phrase "need not be treated as violations" was at a minimum confusing because it seemed to go to the definition of what could constitute a "violation" in a SIP provision rather than to whether the air agency might or might not e lect to exercise enforcement discretion in such circumstances. The EPA believes that additional confusion may have resulted from ambiguity in the 1999 SSM Guidance. That document contained an entire section devoted to "source category specific rules for s tartup and shutdown." In explaining its intentions in providing that section of the guidance, the EPA stated: Finally , EPA is clarifying how excess emissions that occur during periods of startup and shutdown should be addressed. In general, because excess emissions that occur during these periods are reasonably foreseeable, they should not be excused . However, EPA recognizes that, for some source categories, even the best available emissions control sy stems might not be consistently

effective during startu

p or shutdown periods. [For certain sources in certain areas] these technological limitations may be addressed in the underlying standards themselves through narrowly - tailored SIP revisions that take into account the potential impacts on ambient air quality caused b y the inclusion of these allowances (emphasis added). 50 The phrase "may

be addressed ... in narrowly - tailored SIP revisions" may have been misunderstood to suggest that the CAA would allow SIP provisions that provide an actual exemption for the res ulting excess emissions and thus not treat the emissions as a violation of the applicable emission limitations. The EPA did not intend to suggest that an exemption would be permissible; the EPA intended to suggest that the air agency 50 See , 1999 SSM Guidance at 3.

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Page 73 of 339 might elect to design special emission limitations or other control measures that applied to the sources in question during startup and shutdown, as indicated b y the earlier phrase that the excess emissions "should not be excused." In addition, Section III.A of the 1999 SSM Gu idance recommended very specific criteria that air agencies should consider including as part of an y S IP provision that was intended to apply

to sources during startup and shutdown in lieu of the otherwise applicable emission limitations. 51 Inorder to revi se the otherwise applicable emission limitation in the SIP, the EPA recommended that in order to be approvable ( i.e. , meet CAA requirements), the new special requirements applicable to the source during startup and shutdown should be narrowl y tailored and take into account considerations such as the technological limitations of the specific source category and the control technology that is feasible during startup and shutdown. However, the 1999 SSM Guidance should have been clearer that the SIP revisions under discussion could not create an exemption for emissions during startup and shutdown, but rather specific emission limitations or control measures that would apply during those periods. Also unstated but implicit was the requirement that an y such SIP re vision that would alter the existing applicable emission limitations for a source during startup and shutdown would be subject to the same requirements as any other SIP submission, i.e. , compliance with CAA sections 110(a), 110(k), 110(l), 193, and an y oth er CAA provision substantively germane to the SIP revision.

51 See , 1999 SSM Guidance at Attachment 3 - 4.

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Page 74 of 339 The EPA concludes that the CAA does not allow SIP provisions that include exemptions from emission limitations during planned events such as startup and shutdown. Instead, the CAA would allow spe cial emission limitations or other control measures or control techniques that are designed to minimize excess emissions during startup and shutdown. The EPA continues to recommend the seven specific criteria enumerated in Section III.A of the Attachment t o the 1999 SSM Guidance as appropriate considerations for SIP provisions that apply to startup and shutdown. These criteria are: (1) The revision must be limited to specific, narrowly defined source categories using specific control strategies ( e.g. , coge neration facilities burning natural gas and using selective cataly

tic reduction); (2) Use of the control strategy for this source category must be technicall y infeasible during startup or shutdown periods; (3) The frequency

and duration of operation in s tartup or shutdown mode must be minimized to the maximum extent practicable; (4) As part of its justification of the SI P revision, the state should anal yz e the potential worst - case emissions that could occur during startup and shutdown; (5) All possible steps must be taken to minimize the impact of emissions during startup and shutdown on ambient air quality ; (6) At all times, the facility must be operated in a manner consistent with good practice for minimizing emissions, and the source must have used b est efforts regarding planning, design, and operating procedures to meet the otherwise applicable emission limitation; and

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Page 75 of 339 (7) The owner or operator ' s actions during startup and shutdown periods must be documented b y properl y signed, contemporaneous operating logs, or other relevant evidence. The EPA's evaluation of the Petition also indicates that there is a need to reiterate the SSM Policy

with respect to excess emissions that occur during other periods of normal source operation in addition to during p eriods of startup and shutdown. A number of SIP provisions identified in the Petition create automatic or discretionary exemptions from otherwise applicable emission limitations during periods such as "maintenance," "load change," "soot blowing," " on - line operating changes, " or other similar normal modes of operation. L ike startup and shutdown, the EPA considers all of these to be phases of normal operation at a source, for which the source can be designed, operated, and maintained in order to meet the appl icable emission limitations and during which a source should be expected to control and minimize emissions. Accordingl y, exemptions for emissions during these periods of normal source operation are not consistent with CAA requirements. Excess emissions dur ing planned and predicted periods should be treated as violations of the applicable emission limitations. B. Affirmative Defense Provisions During Periods of Malfunction The EPA's evaluation of the Petition indicates that it would be helpful to reiterate the SSM Policy

with respect to affirmative defense provisions that would be consistent with CAA requirements for malfunctions. Man y of the specific SIP provisions identified in the Petition may

have been intended to operate as affirmative defenses, but ne vertheless they

have significant deficiencies. In particular, many of the SIP provisions

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Page 76 of 339 at issue stipulate that if the source meets the conditions specified, then the excess emissions would not be considered violations for any purpose, not merel y with res pect to monetary penalties. This is contrary to the EPA's interpretation of the CAA. In addition, many of the SIP provisions identified in the Petition that resemble affirmative defense provisions do not have sufficientl y robust criteria to assure that the affirmative defense is available onl y for events that are entirely bey ond the control of the owner or operator of the source and events where the owner or operator of the sources has made all practicable efforts to compl y. After consideration of the issu es raised b y the Petition and the wide variet y of existing SIP provisions the Petitioner alleged are deficient, the EPA wants to reiterate the criteria that it considers appropriate for approvable affirmative defense provisions in SIPs. In addition, to pro vide a clear illustration of regulatory text that embodies these criteria effectivel y, the EPA also wishes to provide an example of the regulatory provisions that the EPA employ s in its own regulations to serve this purpose effectivel y and consistently

with CAA requirements. The criteria that the EPA recommends for approvable affirmative defense provisions for excess emissions for malfunctions consistent with CAA requirements remain essentiall y the same as stated in the 1999 SSM Guidance. 52 We repeat them h ere. Most importantly , a valid affirmative defense for excess emissions due to a malfunction can onl y be effective with respect to monetary penalties, not with respect to potential

52 See 1999 SSM Guidance at Attachment 3 - 4.

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Page 77 of 339 injunctive relief. Second, the affirmat ive defense should be limited only t o malfunctions that are sudden, unavoidable, and unpredictable. Third, a valid affirmative defense provision must provide that the defen dant has the burden of proof to demonstrate all of the elements of the defense to qualify . This demonstration has to occ ur in a judicial or administrative proceeding where the merits of the affirmative defense are independentl y and objectivel y evaluated. The specific criteria that the EPA recommends for an affirmative defense provision for malfunctions to be consistent with CAA requirements are: (1) The excess emissions were caused b y a sudden, unavoidable breakdown of technology , bey ond the control of the owner or operator; (2) The excess emissions (a) did not stem from any activity or event that could have been foreseen and avoided, or planned for, and (b) could not have been avoided b y better operation and maintenance practices; (3) To the maximum extent practicable the air pollution control equipment or processes were maintained and operated in a matter consistent with good practice for minimizing emissions; (4) Repairs were made in an expeditious fashion when the operator knew or should have known that applicable emission limitations were being exceeded. Off - shift labor and overtime must have been utilized, to the ext ent practicable, to ensure that such repairs were made as expeditiously as practicable; (5) The amount and duration of the excess emissions (including an y b yp ass) were minimized to the maximum extent practicable during periods of such emissions;

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Page 78 of 339 (6) All possible steps were taken to minimize the impact of the excess emissions on ambient air quality ; (7) All emission monitoring s ys tems were kept in operation if at all possible; (8) The owner or operator's actions in response to the excess emissions were d ocumented b y properl y signed, contemporaneous operating logs, or other relevant evidence; (9) The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and (10) The owner or operator properl y and promptly notified the appropriate regulatory

authorit y. One refinement to these recommendations from the 1999 SSM Guidance that should be highlighted is the EPA's view concerning whether affirmative defenses should be provided in the SIP in the case of geographic areas and pollutants "where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments." The EPA believes that such affirmative defenses may be permissi ble if there is no "potential" for exceedances. Such provisions may also be permissible if the affirmative defense alternatively requires the source to make an affirmative after - the - fact showing that the excess emissions that resulted from the violations d id not in fact cause an exceedance of the NAAQS or PSD increments. The EPA has previousl y approved such provisions as meeting CAA requirements on a case - by - case basis in specific actions on SIP submissions, and in this action proposes to continue that appr oach under proper facts and circumstances.

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Page 79 of 339 In addition to the foregoing criteria for appropriate affirmative defense provisions, the EPA also recommends that air agencies consider the following regulatory language that the EPA is currentl y using for affir mative defense provisions when it issues new National Emissions Standards for Hazardous Air Pollutants (NESHAP) for purposes of CAA section 112. 53 Air agencies may wish to adapt this sample regulatory text for their own affirmative defense provisions in SIP s. **§63.456 Affirmative defense for violation of emission standards**  **during malfunction.** In response to an action to enforce the standards set forth in §§63.443(c) and (d), 63.444(b) and (c), 63.445(b) and (c), 63.446(c), (d), and (e), 63.447(b) or §63.45 0(d), the owner or operator may assert an affirmative defense to a claim for civil penalties for violations of such standards that are caused by malfunction, as defined at 40 CFR 63.2. Appropriate penalties may be assessed, however, if the owner or operato r fails to meet the burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief. (a) To establish the affirmative defense in an y action to enforce such a standard, the owner or operator must timely meet the reporting requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that: (1) The violation: (i) Was caused b y a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner; and (ii) Could not have been prevented through careful planning, proper design , or better operation and maintenance practices; and (iii) Did not stem from any ac tivity or event that could have been foreseen and avoided, or planned for; and (iv) Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and (2) Repairs were made as expeditiously as possible when a 53 See , " National Emission Standards for Hazardous Air Pollutants From the Pulp and Paper Industry ," final rule, 77 FR 55698 (Sept. 11, 2012). Parameters for the affirmative defense are provided at p. 55712.

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Page 80 of 339 violation occurred. Off

- shift and overtime labor were used, to the extent practicable to make these repairs; and (3) The frequency , amount and duration of the violation (including any by pass) were minimized to the maximum extent practicable; and (4) If the violation resulted from a b yp ass of control equipment or a process, then the b ypass was unavoidable to prevent loss of life, personal injury , or severe property damage; and (5) All possible steps were taken to minimize the impact of the violation on ambient a ir quality , the environment , and human health; and (6) All emissions monitoring and control s ys tems were kept in operation if at all possible, consistent with safet y and good air pollution control practices; and (7) All of the actions in response to th e violation were documented by properl y signed, contemporaneous operating logs; and (8) At all times, the affected source was operated in a manner consistent with good practices for minimizing emissions; and (9) A written root cause anal ys is has been p repared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the violation resulting from the malfunction event at issue. The anal ys is shall also specify , using best monitoring methods and engineering judgment, the amount of an y emissions that were the result of the malfunction. (b) Report . The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all necessary supporting documentation, [showing ] that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance [report] , deviation report , or excess emission report otherwise required after the initial occ urrence of the violation of the relevant standard (which may be the end of an y applicable averaging period). If such compliance [report] , deviation report , or excess emission report is due less than 45 day s after the initial occurrence of the violation, th e affirmative defense report may be included in the second compliance [report] , deviation report , or excess emission report due after the initial occurrence of the violation of the relevant standard . (Punctuation adjusted) The EPA notes that this example regulatory text has some features that are not explicitly among the criteria recommended for SIP provisions in the SSM Policy , such as the requirement for a "root cause analy sis" in subsection (a)(9) and an affirmative requirement to report the malfunction to the regulator by a set date and in a particular

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Page 81 of 339 report, rather than merel y a general duty to report the malfunction event to the regulator. The EPA considers such features useful because they serve important purposes related to the anal ys is, documentat ion, and memorialization of the facts concerning the malfunction, thereb y facilitating better evaluation of the events and better evaluation of the source's qualification for the affirmative defense. The EPA believes that these specific features would be v ery

useful and thus recommends that they be included in SIP provisions for affirmative defenses. However, these features need not be required, so long as the SIP provision otherwise provides that the owner or operator of the source will: (i) bear the burde n of proof to establish that the elements of the affirmative defense have been met; and (ii) properly and promptly

notify the appropriate regulatory authority about the malfunction. The EPA also wants to reiterate its views concerning appropriate affirmat ive defense provisions as they relate to malfunctions that occur during planned startup and shutdown and as they

relate to startup and shutdown that occur as the result of or part of a malfunction. With respect to malfunctions that happen to occur during p lanned startup or shutdown, as the EPA articulated in the 1999 SSM Guidance, the excess emissions that occur as a result of the malfunction may be addressed by

an appropriatel y drawn affirmative defense provision consistent with the recommended criteria fo r such provisions. 54 By

definition, the malfunction would have been sudden, unavoidable, and unpredictable, and the source could not have precluded the event b y better source design,

54 See , 1999 SSM Guidance at attachment p. 6.

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Page 82 of 339 operation and maintenance. The EPA interprets the CAA to allow narrowl y dr awn affirmative defense provision in SIPs in such circumstances. Another question is how to treat the excess emissions that occur during a startup or shutdown that is necessitated by the malfunction and are thus potentiall y components of the malfunction e vent. The EPA believes that drawing the distinction between what is directly caused by

the malfunction itself and what is indirectly caused b y the malfunction as a part of non - routine startup and shutdown must alway s be a case - specific enquiry , dependent u

pon the facts and circumstances of the specific event. It is foreseeable that a shutdown necessitated b y a malfunction could be considered part of the malfunction event with the appropriate demonstration of the need to shut down differently than during a r outine shutdown, during which a source should be expected to compl y with applicable emission limitations. It is possible, however, that a routine shutdown may be achievable following a malfunction event, and a source should be expected to strive for this r esult. With respect to startups after a malfunction event, the EPA believes that such startups should not be considered part of the malfunction, because startups are within the control of the source. Malfunctions should have been resolved prior to startup, and the source should be designed, operated, and maintained so that it would meet emission limitations during startups. As a general matter, the EPA does not anticipate that there would be startups that would follow a malfunction that should be considered part of the malfunction event, but in this action the EPA is requesting that commenters address this issue if there could be circumstances that would justify such treatment. Finally , the EPA reiterates that an affirmative defense provision in a SIP canno t

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Page 83 of 339 extend to direct federal regulations such as New Source Performance Standards (NSPS) or NESHAP that the air agency may elect to adopt into its SIP, or to incorporate by reference into its SIP in order to receive delegation of federal authorit y. To the ex tent that any affirmative defense is warranted during malfunctions for these technology - based standards, the federal standards contained in the EPA's regulations alread y specify the appropriate affirmative defense. No additional or different affirmative de fense provision applicable through a SIP provision would be warranted or appropriate. C. Affirmative Defense Provisions During Periods of Startup and Shutdown The EPA's evaluation of the Petition indicates that revisions to the SSM Policy are necessary

w ith respect to affirmative defense provisions during startup and shutdown periods. In the 1999 SSM Guidance, the EPA explicitly discussed the possibility

of affirmative defenses in the context of startup and shutdown, and provided recommended criteria to e nsure that any such affirmative defense provisions in a SI P submission would be appropriatel y narrowly drawn to compl y with CAA requirements. As with affirmative defense provisions for malfunctions, the EPA then believed that achieving a balance between th e requirement of the statute for emission limitations that apply continuously and the possibility

that not all sources can comply 100 percent of the time justified such affirmative defenses during startup and shutdown as a means of providing some flexibili ty while still supporting the overall objectives of the CAA. Review of the Petition and reconsideration of this question in light of recent case law concerning emission limitations and affirmative defenses has caused the EPA to alter its view on the appropriateness of affirmative defenses applicable to planned event s such

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Page 84 of 339 as startup and shutdown. The EPA believes that sources should be designed, maintained, and operated in order to comply with applicable emission limitations during normal operations. By

definition, planned events such as startup and shutdown are phas es of normal source operation. Because these events are modes of normal operation, the EPA believes that sources should be expected to comply with applicable emission limitations during such events. Unlike malfunctions, startup and shutdown are not unexpe cted events and are not events that are bey ond the control of the owner or operator of the source. Also unlike malfunctions, it is possible for the source to anticipate the amount of emissions during startup and shutdown, to take appropriate steps to limit those emissions as needed, and to remain in continuous compliance. In the event that a source in fact cannot comply with the otherwise applicable emission limitations during normal modes of source operation due to technological limitations, then it may be appropriate for the state to provide special emission limitations or control measures that apply to the source during startup and shutdown. The EPA acknowledges that the availability of an affirmative defense for planned startup and shutdown as contemplated in the 1999 SSM Guidance may have provided extra incentive for sources to take extra precautions to minimize emissions during startup and shutdown in order to be eligible for the affirmative defense in the event of a violation. However, sources should not need extra incentive to comply during normal modes of operation such as startup and shutdown, as they should be designed, operated, and maintained in order to comply with applicable emission limitations at all times, and

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Page 85 of 339 certainl y during planned and pr edictable events. By logical extension, the theory that an affirmative defense should be available during planned startup and shutdown could appl y to all phases of normal source operation, which would not be appropriate. The EPA believes that providing af firmative defenses for violations that occur as a result of planned events within the control of the owner or operator of the source is inconsistent with the requirements of CAA sections 113 and 304, which provide for potential civil penalties for violatio ns of SIP requirements. The distinction that makes affirmative defenses appropriate for malfunctions is that by definition those events are unforeseen and could not have been avoided b y the owner or operator of the source, and the owner or operator of the source will have taken steps to prevent the violation and to minimize the effects of the violation after it occurs. In such circumstances, the EPA interprets the CAA to allow narrowl y drawn affirmative defense provisions that may shield owners or operators of sources from civil penalties, when their conduct justifies this relief. Such is not the case with planned and predictable events, such as startup and shutdown, during which the owners or operators of sources should be expected to comply with applicabl e emission limitations and should not be accorded relief from civil penalties if they

fail to do so. Providing an affirmative defense for monetary penalties for violations that result from planned events is inconsistent with the basic premise that the exce ss emissions were beyond the control of the owner or operator of the source and thus is diametrically

opposed to the intended purpose of such an affirmative defense to encourage better compliance even b y sources for which 100 - percent compliance is not

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Page 86 of 339 poss ible. The EPA notes that enforcement discretion may still be warranted in such circumstances, but the elimination of potential civil penalties is not appropriate. For these reasons, the EPA is proposing to rescind its prior interpretation of the CAA that w ould allow affirmative defense provisions during planned startup and shutdown. 55 D. Relationship Between SIP Provisions and Title V Regulations The EPA's review of the Petition has highlighted an area of potential ambiguity or conflict between the SSM Pol icy applicable to SIP provisions and the EPA's regulations applicable to title V permit provisions. The EPA has promulgated regulations in 40 CFR part 70 applicable to state operating permit programs and in 40 CFR part 71 applicable to federal operating pe rmit programs. 56 Under each set of regulations, the EPA has provided that permits may

contain, at the permitting authority's discretion, an "emergency provision." 57 The relationship between such an "emergency provision" in a permit applicable to a source and the SIP provisions applicable to the same source with respect to excess emissions during a malfunction event warrants explanation .

55 Inaccor dance with CAA section 113(e), sources retain the ability to seek lower monetary penalties through the factors provided for consideration in administrative or judicial enforcement proceedings. In this context, for example, a violating source could argue th at factors such as good faith efforts to comply should reduce otherwise applicable statutory penalties. 56 See 40 CFR sections 70.1

– 70.12; 40 CFR sections 71.1

– 71.27. 57 See 40 CFR 70.6(g); 40 CFR 71.6(g). The EPA also notes that states are not required to adopt the "emergency

provision" contained in 40 CFR 70.6(g) into their state operating permit programs, and many states have chosen not to do so. See, e.g., 66 FR 55112 at 5 5113 (Nov. 1, 2001).

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Page 87 of 339 The regulatory

parameters applicable to such emergency provisions in operating permits are the same for both state operatin g permit programs regulations and the federal operating permit program regulations. The definition of emergency is identical in the regulations for each program: An "emergency " means any situation arising from sudden and reasonabl y unforeseeable events be yond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology - based emission limitation under the permit, due to unavoidable increa ses in emissions attributable to the emergency . An emergency shall not include noncompliance to the extent caused b y improperl y designed equipment, lack of preventative maintenance, careless or improper operation or operator error. 58 Thus, the definition o f "emergency " in these title V regulations is similar to the concept of "malfunctions" in the EPA's SSM Policy for SIP provisions, but it uses somewhat different terminology

concerning the nature of the event and restricts the qualifying exceedances to "te chnology - based" emission limitations. 59 Some SIP provisions may also be "technology - based" emission limitations and thus this terminology in the operating permit regulations may

engender some potential inconsistency with the SSM Policy . If there is an emer gency

event meeting the regulatory definition, then the EPA's regulations for operating permits provide that the source can assert an "affirmative 58 See 40 CFR 70.6(g)(1); 40 CFR 71.6(g)(1). 59 1999 SSM Guidance at Attachment p. 1 and footnote 6. The term "malfunction" means "a sudden and unavoidable breakdown of process or control equipment." The malfunction events that may

be suitable for an affirmative defense are those that are "caused by circumstances entirel y beyond the control of the owner or operator." The EPA notes that by definition emergencies do not include normal source operation such as startup, shutdown, or mainten ance.

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Page 88 of 339 defense" to enforcement for noncompliance with technology - based standards during the emergency

event. In orde r to establish the affirmative defense, the regulations place the burden of proof on the source to demonstrate through specified forms of evidence that: (i) An emergency

occurred and that the permittee can identify the cause(s) of the emergency ; (ii) The permitted facility was at the time being properly operated; (iii) During the period of the emergency the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards, or other requirements in the permit; and ( iv) The permittee submitted notice of the emergency to the permitting authority within 2 working day s of the time when emission limitations were exceeded due to the emergency . This notice fulfills the requirement of either paragraph 40 CFR 70.6(a)(3)(iii)( B) or 40 CFR 71.6(a)(3)(iii)(B). This notice must contain a description of the emergency , an y steps taken to mitigate emissions, and corrective actions taken. 60 The Petitioner did not directly request that the EPA evaluate the existing regulatory

provision s applicable to operating permits in 40 CFR part 70 and 40 CFR part 71, and the EPA is not revising those provisions in this action. However, the Petitioner did identify

a number of specific SIP provisions that indirectly relate to this issue because the s tate may

have modeled its SIP provision, at least in part, on the EPA's operating

60 40 CFR 70.6(g)(3); 40 CFR 71.6(g)(3).

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Page 89 of 339 permit regulations. 61 In those instances, the state in question presumably intended to create an affirmative defense applicable during malfunctions appropriate for SIP provisi ons, but by

using the terminology

used in the operating permit regulations, the state has created provisions that are not permissible in SI Ps. The elements for the affirmative defense in the title V permit regulations are similar to the criteria recommend ed in the SSM Policy for SIP provisions applicable to malfunctions. However, the elements for the affirmative defense provisions in operating permits do not explicitly

include some of the criteria that the EPA believes are necessary in order to make such a provision appropriate in a SI P provision. For example, the EPA recommends that approvable SIP provisions include an affirmative dut y for the source to establish that the malfunction was "not part of a recurring pattern indicative of inadequate design, ope ration, or maintenance." 62 Inaddition, the regulations applicable to operating permits use somewhat different terminology for the elements of the defense, such as providing that the emergencies were "sudden and reasonabl y unforeseeable events bey ond the co ntrol of the source," whereas the EPA's SSM Policy describes malfunctions as events that "did not stem from an y activit y or event that could have been foreseen and avoided, or planned for." 63 Again, the use of somewhat different terminology about the

61 See, e.g. , Petition at 24. The Petitioner identified a provision in the Arkansas SIP that appears to be closel y modeled on 40 CFR 70.6(g). 62 1999 SSM Guidance at Attachment pp. 3 - 4. 63 1999 SSM Guidance at Attachment p. 3.

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Page 90 of 339 elements the source must establish in order to qualify for an affirmative defense may engender some potential inconsistency with the EPA's SSM Policy . Although the differing regulatory terminology

with respect to the nature of the event or the elements ne cessary to establish an affirmative defense may not ultimately

be significant in practical application in a given enforcement action, there are two additional way s in which incorporation of the text of the regulatory provisions in 40 CFR 70.6(g) and 40 CFR 71.6(g) into a SIP is potentially more directly

in conflict with the SSM Policy . First, these provisions do not explicitly limit the affirmative defense only to civil penalties available under the CAA for violations of emission limitations. Each provision states only

that an "emergency

constitutes an affirmative defense to an action brought for noncompliance" if the source proves that it meets the conditions for the affirmative defense. 64 Given this lack of an explicit limitation, it could be argued that SI P provisions that copy the wording of 40 CFR 70.6(g) and 40 CFR 71.6(g) are not limited to civil penalties. 65 Such a reading would be inconsistent with the EPA's view that affirmative defenses in SIP provisions are onl y consistent with the CAA if they appl y to civil penalties and not to injunctive relief. The EPA believes it is essential for SIPs to ensure

64 40 CFR 70.6(g)(2); 40 CFR 71.6(g)(2). 65 Because title V requires that a source have a permit that "assure[s] compliance with applicable [CAA] requirements," CAA section 504(a), it follows that the title V emergency

provision itself can best be read to provide only an affirmative defense against civil penalties and not against injunctive relief. See also 76 FR70 834 at 70 838/2 (Nov. 15, 2011) (explaining why limiting affirmative defenses to civil penalties conforms with the purposes of the CAA and existing case law).

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Page 91 of 339 that injunctive relief is available should a court determine that such relief is necessary to prevent excess emissions in the future. Second, these operating permit regulatory provisions state that they are "in addition to any

emergency

or upset provision contained in any applicable requirement." 66 The EPA's view is that federal technology - based standards alread y include the appropriate affirmative defense provisions, if any , and that creation of additional affirmative defenses via a SIP provision is impermissible. 67 Thus, SIP provisions that add to or alter the terms of any federal technology - based standards would be substantially inadequate to meet CAA requ irements. 68 In this action, the EPA is taking action to evaluate the specific SIP provisions identified in the Petition and is proposing to make a finding of substantial inadequacy and to issue a SIP call for those SIP provisions that include features that are inappropriate for SIPs, regardless of whether those provisions contain terms found in other regulations. First, consistent with its longstanding interpretation of the CAA with respect to SI P requirements, the EPA believes that approvable affirmative d efenses in a SIP provision 66 40 CFR 70.6(g)(5); 40 CFR 71.6(g)(5). 67 1999 SSM Guidance at Attachment p. 3, footnote 6. The EPA explained that to the extent a state elected to include federal technology - based standards into its SIP, such as NSPS or NE SHAPs, the standards should not deviate from those standards as promulgated. Because the EPA has alread y taken into account technological limitations in setting the standards, additional exemptions or affirmative defenses would be inappropriate. 68 See , "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 74 FR 21639 (Apr. 18, 2011) (the EPA issued a SIP call because, inter alia , the SIP provision applied to NSPS and NESHAP); US Magnesium, LLC v. EPA , 690 F.3d 1157 (10th Cir. 2012) (upholding the SIP call).

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Page 92 of 339 can onl y appl y to civil penalties, not to injunctive relief. Second, approvable affirmative defenses in a SIP provision should reflect the recommended criteria in the EPA's SSM Policy to assure that sources only assert affirmativ e defenses in appropriately narrow circumstances. Third, approvable affirmative defenses in a SIP provision cannot operate to create different or additional defenses from those that are provided in underlying federal technology - based emission limitations, such as NSPS or NESHAP. SI Ps are comprised of emission limitations that are intended to provide for attainment and maintenance of the NAAQS, protection of PSD increments, protection of visibility , and other CAA objectives. Thus, the EPA believes that only narrowl y drawn affirmative defense provisions, as recommended in its SSM Policy , are consistent with these overarching SIP requirements of the CAA. E. Intended Effect of the EPA's Action on the Petition As in the 2001 SSM Guidance, the EPA is endeavoring to be particularl y clear about the intended effect of its proposed action on the Petition, of its proposed clarifications and revisions to the SSM Policy , and ultimately of its final action on the Petition. First, the EPA only

intends its actions on the larger policy or legal issues raised by the Petitioner to inform the public of the EPA's current views on the requirements of the CAA with respect to SI P provisions related to SSM events. Thus, for example, the EPA's proposed disapproval of the Petitioner' s request that the EPA disallow all affirmative defense provisions for excess emissions during malfunctions is intended to convey that the EPA has not changed its views that such provisions can be consistent with CAA

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Page 93 of 339 requirements for SI Ps with respect to m alfunctions. Inthis fashion, the EPA's action on the Petition provides updated guidance relevant to future SIP actions. Second, the EPA only

intends its actions on the specific existing SIP provisions identified in the Petition to be applicable to those provisions. The EPA does not intend its action on those specific provisions to alter the current status of an y other existing SIP provisions relating to SSM events. The EPA must take later rulemaking actions, if necessary , in order to evaluate any comparab le deficiencies in other existing SIP provisions that may

be inconsistent with the requirements of the CAA. Again, however, the EPA's actions on the Petition provide updated guidance on the t ypes of SIP provisions that it believes would be consistent with CAA requirements in future rulemaking actions. Third, the EPA does not intend its action on the Petition to affect existing permit terms or conditions regarding excess emissions during SSM events that reflect previousl y approved SIP provisions. In the eve nt that the EPA finalizes a proposed finding of substantial inadequacy

and a SIP call for a given state, the state will have time to revise its SIP in response to the SI P call through the necessary state and federal administrative process. Thereafter, an y needed revisions to existing permits will be accomplished in the ordinary course as the state issues new permits or reviews and revises existing permits. The EPA does not intend the issuance of a SI P call to have automatic impacts on the terms of an y exist ing permit. Fourth, the EPA does not intend its action on the Petition to alter the emergency defense provisions at 40 CFR 70.6(g) and 40 CFR 71.6(g), i.e. , the title V regulations pertaining to "emergency provisions" permissible in title V operating perm its. The EPA's

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Page 94 of 339 regulations applicable to title V operating permits may onl y be changed through appropriate rulemaking procedures and existing permit terms may onl y be changed through established permitting processes. Fifth, the EPA does not intend its interpretations of the requirements of the CAA in this action on the Petition to be legally dispositive with respect to any particular current enforcement proceedings in which a violation of SIP emission limitations is al leged to have occurred. The EPA handles enforcement matters b y assessing each situation, on a case - by - case basis, to determine the appropriate response and resolution. For purposes of alleged violations of SI P provisions, however, the terms of the applicab le SIP provision will continue to govern until that provision is revised following the appropriate process for SIP revisions, as required by the CAA. Finally , the EPA does intend that the final notice for this action will embody its most current SSM Polic y, reflecting the EPA's interpretation of CAA requirements applicable to SIP provisions related to excess emissions during SSM events . In this regard, the EPA is proposing to add to and clarify its prior statement s in the 1999 SSM Guidance and to make the specific changes to that guidance as discussed in this action. Thus, the final notice for this action will constitute the EPA's SSM Policy on a going forward basis. **VIII. Legal Authority, Process, and Timing for SIP Calls**  A. SIP Call Authority U nder S ection 110(k)(5) 1. General Statutory

Authority The CAA provides a mechanism for the correction of flawed SIPs, under CAA

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Page 95 of 339 section 110(k)(5), which provides: (5) Calls for plan revisions Whenever the Administrator finds that the applicable implementati on plan for any area is substantially inadequate to attain or maintain the relevant national ambient air qualit y standards, to mitigate adequatel y the interstate pollutant transport described in section [176A] of this title or section [184 ] of this title, or to otherwise comply with any requirement of [the Act], the Administrator shall require the State to revise the plan as necessary

to correct such inadequacies. The Administrator shall notify

the State of the inadequacies and may establish reasonable dead lines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions . By its explicit terms, this provision authorizes the EPA to find that a state ' s existing SIP is " substantially inadequate " to meet CAA requirements an d, based on that finding, to " require the State to revise the [SIP] as necessary to correct such inadequacies. " This t ype of action is commonly referred to as a "S IP call . " 69 Significantl y, CAA section 110(k)(5) explicitly authorizes the EPA to issue a SIP call " whenever " the EPA makes a finding that the existing SIP is substantially inadequate, thus providing authorit y for the EPA to take action to correct existing 69 The EPA also has other discretionary authority to address incorrect SIP provisions, such as the authorit y in CAA Section 110(k)(6) for the EPA to correct errors in prior SIP approvals. The authority

in CAA section 110(k)(5) and CAA section 110(k)(6) can sometimes overlap and offer alternative mechanisms to address problematic SIP provisions. In this instance, the EPA believes that the mechanism provided by CAA section 110(k)(5) is the better a pproach, because using the mechanism of the CAA section 110(k)(6) error correction would eliminate the affected emission limitations from the SIP potentially

leaving no emission limitation in place, whereas the mechanism of the CAA section 110(k)(5) SIP ca ll will keep the provisions in place during the pendency of the state's revision of the SIP and the EPA's action on that revision. In the case of provisions that include impermissible automatic exemptions or discretionary exemptions, the EPA believes that retention of the existing SIP provision is preferable to the absence of the provision in the interim.

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Page 96 of 339 inadequate SIP provisions even long after their initial approval, or even if the provisions only become inadequate due to subsequent events. 70 The statutory provision is worded in the present tense, giving the EPA authority to rectify an y deficiency

in a SIP that currentl y exists, regardless of the fact that the EPA previously approved that partic ular provision in the SI P and regardless of when that approval occurred. It is also important to emphasize that CAA section 110(k)(5) expressly directs the EPA to take action if the SIP provision is substantially inadequate not just for purposes of attainment or maintenance of the NAAQS, but also for purposes of " an y requirement " of the CAA. The EPA interprets this reference to " any requirement " of the CAA on its face to authorize reevaluation of an existing SI P provision for compliance with those statutory and regulatory

requirements that are germane to the SIP provision at issue . Thus, for example, a SIP provision that is intended to be an " emission limitation " for purposes of a nonattainment plan for purposes of the 1997 PM 2.5 NAAQS must meet various app licable statutory and regulatory

requirements, including requirements of CAA section 110(a)(2)(A) such as enforceabilit y, the definition of the term " emission limitation " in 70 See, e.g. , Michigan v. EPA , 213 F.3d 663 (D.C. Cir. 2000) (upholding the "NOx SI P Call" to states requiring revisions to previously approved SIPs with respect to ozone transport and section 110(a)(20(D)(i)(I)); "Action to Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call; Final Rule," 75 FR 77698 (Dec. 13, 2010) (the EPA issued a SI P call to 13 states because the endangerment finding for GHGs meant that these previousl y approved SIPs were substantiall y inadequate because they

did not provide for the regulation of GHGs in the PSD permitting programs of these states as required by CAA section 110(a)(2)(C) and section 110(a)(2)(J)); "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 74 FR 21639 (Apr. 18, 2011) (the EPA issue d a SIP call to rectify SIP provisions dating back to 1980).

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Page 97 of 339 CAA section 302(k), the level of emissions control required to constitute a " reaso nabl y available control measure " in CAA section 172(c)(1), and the other applicable requirements of the implementation regulations for the 1997 PM 2.5 NAAQS. Failure to meet an y of those applicable requirements could constitute a substantial inadequacy suit able for a SIP call, depending upon the facts and circumstances. By contrast, that same SIP provision should not be expected to meet specifications of the CAA that are completely

irrelevant for its intended purpose, such as the unrelated requirement of CAA section 110(a)(2)(G) that the state have general legal authority comparable to CAA section 303 for emergencies. Use of the term " an y requirement " in CAA section 110(k)(5) also reflects the fact that SIP provisions could be substantially inadequate for wi dely

differing reasons. One provision might be substantially inadequate because it fails to prohibit emissions that contribute to violations of the NAAQS in downwind areas many states away . Another provision, or even the same provision, could be substantia lly inadequate because it also infringes on the legal right of members of the public who live adjacent to the source to enforce the SIP. Thus, the EPA has previousl y interpreted CAA section 110(k)(5) to authorize a SIP call to rectify SIP inadequacies of various kinds, both broad and narrow

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Page 98 of 339 in terms of the scope of the SIP revisions required. 71 On its face, CAA section 110(k)(5) authorizes the EPA to take action with respect to SIP provisions that are substantially inadequate to meet any

CAA requirements, including requirements relevant to the proper treatment of excess emissions during SSM events. An important baseline question is whether a given deficiency renders the SIP provision " substantially

inadequate. " The EPA notes that the term " substantially inadequate " is not defined in the CAA. Moreover, CAA section 110(k)(5) does not specify a particular form of anal ys is or methodology that the EPA must use to evaluate SIP provisions for substantial inadequacy . Thus, under Chevron step 2, the EPA is authorized to interpret this provision reasonabl y, consistent with the provisions of the CAA. In addition, the EPA is authorized to exercise its discretion in applying this provision to determine whether a given SIP provision is subst antially inadequate. To the extent that the term " substantially inadequate " is ambiguous, the EPA believes that it is reasonable to interpret the term in light of the specific purposes for which the SIP provision at issue is required, and thus whether the provision meets the fundamental CAA requirements applicable to such a provision. The EPA does not interpret CAA section 110(k)(5) to require a showing that the 71 See, e.g. , "Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone," 63 FR 57 356 (Oct. 27, 1998) (the EPA issued a SIP call to 23 states requiring them to rectify

the failure to address interstate transport of pollutants as required b y section 110(a)(2)(D); "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah St ate Implementation Plan Revision," 74 FR 21639 (Apr. 18, 2011) (the EPA issued a SI P call to one state requiring it to rectify several very

specific SIP provisions).

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Page 99 of 339 effect of a SI P provision that is facially inconsistent with CAA requirements is causally conne cted to a particular adverse impact. For example, the plain language of CAA section 110(k)(5) does not require direct causal evidence that excess emissions have occurred during a specific malfunction at a specific source and have literally caused a violati on of the NAAQS in order to conclude that the SI P provision is substantially inadequate. 72 A SIP provision that purports to exempt a source from compliance with applicable emission limitations during SSM events, contrary to the requirements of the CAA for c ontinuous emission limitations, does not become legall y permissible merel y because there is not definitive evidence that an y excess emissions have resulted from the exemption and have literally caused a specific NAAQS violation. 73 Similarly , the EPA does n ot interpret CAA section 110(k)(5) to require direct causal evidence that a SIP provision that improperly undermines enforceability of the SIP has resulted in a specific failed enforcement attempt by an y part y. A SIP provision that has the practical effect of barring enforcement by the EPA or through a citizen s uit , either because it would bar enforcement if an air agency elects to grant a discretionary

72 See , US Magnesium, LLC v. EPA , 690 F.3d 1157 (10th Cir. 2012) (upholding the EPA's inte rpretation of section 110(k)(5) to authorize a SI P call when the SIP provisions are inconsistent with CAA requirements). 73 The EPA notes that the GHG SI P call did not require "proof" that the failure of a state to address GHGs in a given PSD permit "cause d" particularized environmental impacts; it was sufficient that the state's SIP fails to meet the current fundamental legal requirements for regulation of GHGs in accordance with the CAA. See " Action to Ensure Authorit y To Issue Permits Under the Preventio n of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call; Final Rule, " 75 FR 77698 (Dec. 13, 2010) .

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Page 100 of 339 exemption or to exercise its own enforcement discretion, is inconsistent with fundamental requirements of the CAA. 74 Such a provision also does not become legally permissible merel y because there is not definitive evidence that the state's action literally undermined a specific attempted enforcement action by other parties . Indeed, the EPA notes that these imp ediments to effective enforcement likel y have a chilling effect on potential enforcement in general . The possibility for effective enforcement of emission limitations in SIPs is itself an important principle of the CAA, as embodied in CAA section s 113 and 304. The EPA ' s interpretation of CAA section 110(k)(5) is that the fundamental integrit y of the CAA ' s SIP process and structure are undermined if emission limitations relied upon to meet CAA requirements related to protection of public health and the envi ronment can be violated without potential recourse. For example, the EPA does not believe that it is authorized to issue a SIP call to rectify an impermissible automatic exemption provision only after a violation of the NAAQS has occurred, or only if that NAAQS violation can be directly linked to the excess emissions that resulted from the impermissible automatic exemption by a particular source on a particular day . I f the SIP contains a provision that is inconsistent with fundamental requirements of the CAA, that renders the SIP provision substantially inadequate . 74 See , "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 74 FR 21639 at 21641 (Apr. 18, 2011); see also , US Magnesium, LLC v. EPA , 690 F.3d 115 7, 1168 (10th Cir. 2012) (upholding the EPA's interpretation of section 110(k)(5) to authorize a SIP call when the state's SI P provision wo rded so that state decisions whether a given excess emissions event constituted a violation interfered with enforcement b y the EPA or citizens for such event).

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Page 101 of 339 The EPA notes that CAA section 110(k)(5) can also be an appropriate tool to address ambiguous SI P provisions that could be read by a court in a way

that would violate the requirements of the CAA. For example, if an existing SIP provision concerning the state's exercise of enforcement discretion is sufficiently ambiguous that it could be construed to preclude enforcement by the EPA or through a citizen s uit if the state elects to deem a given SSM e vent not a violation, then that could render the provision substantially

inadequate b y interfering with the enforcement structure of the CAA. 75 If a court could construe the ambiguous SIP provision to bar enforcement, the EPA believes that it may

be appropr iate to take action to eliminate that uncertainty by requiring the state to revise the ambiguous SIP provision. Under such circumstances, it may be appropriate for the EPA to issue a SIP call to assure that the SIP provisions are sufficiently

clear and con sistent with CAA requirements on their face. 76 In this instance, the Petition raise d questions concerning the adequacy of existing SIP provisions that pertain to the treatment of excess emissions during SSM events. The 75 Courts have on occasion interpreted SIP provisions to limit the EPA's enforcement authority a s a result of ambiguous SIP provisions. See, e.g. , U.S. v. Ford Motor Co. , 736 F.Supp. 1539 (W.D. Mo. 1990) and U.S. v. General Motors Corp. , 702 F. Supp. 133 (N.D. Texas 1988) (the EPA could not pursue enforcement of SIP emission limitations where states had approved alternative emission limitations under procedures the EPA had approved in the SIP); Florida Power &Light Co. v. Costle , 650 F.2d 579, 588 (5th Cir. 1981) (the EPA to be accorded no discretion in interpreting state law). The EPA does not agree with the holdings of these cases, but they illustrate wh y it is reasonable to eliminate any uncertainty

about enforcement authority by requiring a state to remove or revise a SIP provision that could be read in a way inconsistent with the requirements of the CAA. 76 See , US Magnesium, LLC v. EPA , 690 F.3d 1 157, 1170 (10th Cir. 2012) (upholding the EPA's use of SIP call authority in order to clarify

language in the SIP that could be read to violate the CAA, even if a court has not yet interpreted the langua ge in that way).

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Page 102 of 339 SIP provisions identified by the Peti tioner generally

fall into four major categories: (i) automatic exemptions; (ii) exemptions as a result of director 's discretion; (iii) provisions that appear to bar enforcement by the EPA or through a citizen suit if the state decides not to enforce throu gh exercise of enforcement discretion ; and (iv) affirmative defense provisions that appear to be inconsistent with the CAA as interpreted in the EPA's SSM Policy . The EPA believes that each of these t ypes of SIP deficiency potentially

justifies a SIP call pursuant to CAA section 110(k)(5), if the SIP provision is as the Petitioner describes it . 2. Substantial Inadequacy of Automatic Exemptions The EPA believes that SIP provisions that provide an automatic exemption from otherwise applicable emission limitations are substantially inadequate to meet CAA requirements. A t ypical SIP provision that includes an impermissible automatic exemption would provide that a source has to meet a specific emission limitation, except during startup, shutdown, and malfunction, and b y definition any excess emissions during such events would not be violations and thus there could be no enforcement based on those excess emissions. The EPA ' s interpretation of CAA requirements for SI P provisions has been reiterated multiple t imes through the SSM Policy and actions on SIP submissions that pertain to this issue. The EPA ' s longstanding view is that SIP provisions that include automatic exemptions for excess emissions during SSM events, such that the excess emissions during those events are not considered violations of the applicable emission limitations, do not meet CAA requirements. Such exemptions undermine the protection of the NAAQS and PSD increments and fail to meet other fundamental

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Page 103 of 339 requirements of the CAA. The EPA interpr ets CAA section s 110(a)(2)(A) and 110(a)(2)(C) to require that SIPs contain " emission limitations " to meet CAA requirements. Pursuant to CAA section 302(k), those emission limitations must be " continuous. " Automatic exemptions from otherwise applicable emi ssion limitations thus render those limits less than continuous as required b y CAA section s 110(a)(2)(A) and 110(a)(2)(C), thereb y inconsistent with a fundamental requirement of the CAA and thus substantially inadequate as contemplated in CAA section 110(k)(5). This inadequacy

has far - reaching impacts. For example, air agencies rel y on emission limitations in SIPs in order to provide for attainment and maintenance of the NAAQS. These emission limitations are basic building blocks for SIPs, often used by ai r agencies to meet various requirements including: (i) in the estimates of emissions for emissions inventories; (ii) in the determination of what level of emissions meets various statutory requirements such as " reasonabl y available control measures " in non attainment SIPs or " best available retrofit controls " in regional haze SIPs ; and (iii) in critical modeling exercises such as attainment demonstration modeling for nonattainment areas or increment use for PSD permitting purposes. All of these uses ty pic all y assume continuous source compliance with applicable emission limitations. Because the NAAQ S are not directly enforceable against individual sources, air agencies rel y on the adoption and enforcement of these generic and specific emission limits in SIPs in order to provide for attainment and maintenance of the NAAQS , protection of PSD increments, protection of visibility , and other CAA requirements .

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Page 104 of 339 Automatic exemption provisions for excess emissions eliminate the possibility of enforcement for what would otherwise be clear violations of the relied - upon emission limit ations and thus eliminate an y opportunit y to obtain injunctive relief that may be needed to protect the NAAQS or meet other CAA requirements . Likewise, the elimination of any

possibility for penalties for what would otherwise be clear violations of the emission limit ation s, regardless of the conduct of the source, eliminates any opportunity

for penalties to encourage appropriate design, operation, and maintenance of sources and efforts by source operators to prevent and to minimize excess emissions in order to protect the NAAQS or to meet other CAA requirements . Removal of this monetary incentive to comply with the SIP reduces a source ' s incentive to design, operate, and maintain its facili ty to meet emission limit ation s at all times. 3. Substantial Inadequacy of Director ' s Discretion Exemptions The EPA believes that SIP provisions that allow discretionary exemption s from otherwise applicable emission limitations are substantially inadequate to meet CAA requirements for the same reasons as automatic exemptions, but for additional reasons as well. A ty pical SIP provision that includes an impermissible "director's discr etion" component would purport to authorize air agency personnel to modify

existing SIP requirements under certain conditions, e.g. , to grant a variance from an otherwise applicable emission limitation if the source could not meet the requirement in certai n

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Page 105 of 339 circumstances. 77 If such provisions are sufficientl y specific, provide for sufficient public process, and are sufficiently bounded, so that it is possible to anticipate at the time of the EPA's approval of the SIP provision how that provision will actuall y be applied and the potential adverse impacts thereof, then such a provision might meet basic CAA requirements. In essence, if it is possible to anticipate and evaluate in advance how the exercise of enforcement discretion could impact compliance with oth er CAA requirements, then it may be possible to determine in advance that the pre - authorized exercise of director's discretion will not interfere with other CAA requirements, such as providing for attainment and maintenance of the NAAQS. Most director's di scretion - ty pe provisions cannot meet this basic test. Unless it is possible at the time of the approval of the SIP provision to anticipate and anal yz e the impacts of the potential exercise of the director's discretion, such provisions functionally

could a llow de facto revisions of the approved provisions of the SIP without complying with the process for SI P revisions required by the CAA. Sections 110(a)(1) and (2) of the CAA impose procedural requirements on states that seek to amend SIP provisions. The el ements of CAA section 110(a)(2) and other sections of the CAA, depending upon the subject of the SIP provision at issue, impose substantive requirements that states must meet in a SIP revision. Section 110(i) of the CAA prohibits 77 The EPA notes that problematic "director's discretion" provisions are not limited only to those that purport to authorize alternative emission limitations from those required in a SIP. Other problematic director's discretion provisions could include those that purport to provide for discretionary

changes to other substantive requirements of the SIP, such as applicability , operating requirements, recordkeeping requirements, monitoring requirements, test methods, and alternative compliance methods.

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Page 106 of 339 modification of SIP requir ements for stationary sources b y either the state or the EPA, except through specified processes. 78 Section 110(k) of the CAA imposes procedural and substantive requirements on the EPA for action upon any SIP revision. Sections 110(l) and 193 of the CAA both impose additional procedural and substantive requirements on the state and the EPA in the event of a SIP revision. Chief among these many requirements for a SIP revision would be the necessary demonstration that the SIP revision in question would not int erfere with an y requirement concerning attainment and reasonable further progress or "an y other applicable requirement of" the CAA to meet the requirements of CAA section 110(l). Congress presumabl y imposed these man y explicit requirements in order to ass ure that there is adequate public process at both the air agency and federal level for an y S IP revision, and to assure that an y S IP revision meets the applicable substantive requirements of the CAA. Although no provision of the CAA explicitly addresses 78 Section 110(i) of the Act states that "no order, suspension, plan revision or other action modifying an y requirement of an applicable implementation plan may be taken with respect to an y stationary

source by

the State or b y the Administrator" except in compliance with the CAA's requirements for promulgation or revision of a plan, with limited exceptions. See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposing to disapprove "director discretion" provisions as inconsistent with CAA requirement s and noting that "[s]ection 110(i) specifically prohibits States, except in certain limited circumstances, from taking an y action to modify any requirement of a SIP with respect to any stationary

source, except through a SIP revision"), finalized as propo sed at 76 FR 4540 (Jan. 26, 2011); 69 FR 67062 at 67063 (Nov. 16, 2004) (noting that "a state - issued variance, though binding as a matter of State law, does not prevent EPA from enforcing the underl yi ng SIP provisions unless and until EPA approves that var iance as a SIP revision"); Industrial Environmental Association v. Browner , No. 97 - 71117 at n. 2 (9 th Cir. May 26, 2000) ( noting that the EPA has consistently treated individual variances granted under state variance provisions as "modifications of the SIP requiring independent EPA approval") .

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Page 107 of 339 whe ther a "director's discretion" provision is acceptable by name, the EPA interprets the statute to prohibit such provisions unless they would be consistent with the statutory and regulatory

requirements that apply

to SIP revisions. 79 A SIP provision that pur ports to give broad and unbounded director's discretion to alter the existing legal requirements of the SIP with respect to meeting emission limitations would be tantamount to allowing a revision of the SIP without meeting the applicable procedural and sub stantive requirements for such a SIP revision. For this reason, the EPA has long discouraged the creation of new SIP provisions containing an impermissible director's discretion feature and has also taken actions to remove existing SIP provisions that it had previously approved in error. 80 Inrecent ye ars, the EPA has also recommended that if an air agency elects to have SIP provisions that contain a director's discretion feature consistent with CAA requirements, then the

79 See, e.g., EPA's implementing regulations at 40 CFR 51.104(d) ("In order for a variance to be considered for approval as a revision to the [SIP], the State must submit it in accordance with the requirements of this section") and 51.105 ("Revisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved b y the Administrator in accordance with this part."). 80 See, e.g. , "Approval and Disapproval and Promulgation of Air Qualit y Implementation Plans; Colorado; Revisions to Regulation 1," 76 FR 4540 (Jan. 26, 2011) (partial disapproval of SI P submission based on inclusion of impermissible director's discretion provisions); "Correction of Implementation Plans; American Samoa, Arizona, California, Hawaii, and Nevada State Implementation Plans," 61 FR 38664 (July 25, 1996) (proposed SIP correction to remove, pursuant to CAA section 110(k)(6), several variance provisions from American Samoa, Arizona, Califor nia, Hawaii, and Nevada SI Ps), finalized at 62 FR 34641 (June 27, 1997); "Approval and Promulgation of Implementation Plans; Corrections to the Arizona and Nevada State Implementation Plans," 74 FR 57051 (Nov. 3, 2009) (direct final rulemaking to remove, p ursuant to CAA section 110(k)(6), variance provisions from Arizona and Nevada SIPs).

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Page 108 of 339 provisions must be structured so th at an y resulting variances or other deviations from the SIP requirements have no federal law validit y, unless and until the EPA specificall y approves that exercise of the director's discretion as a SIP revision. Barring such a later ratification b y the EPA through a SIP revision, the exercise of director's discretion is only valid for state (or tribal) law purposes and would have no bearing in the event of an action to enforce the provision of the SIP as it was originall y approved b y the EPA. The EPA's eva luation of the specific SIP provisions of this ty pe identified in the Petition indicates that none of them provide sufficient process or sufficient bounds on the exercise of director's discretion to be permissible. Most on their face would allow potentiall y limitless exemptions with potentially dramatic adverse impacts inconsistent with the objectives of the CAA. More importantly , however, each of the identified SIP provisions goes far bey ond the limits of what might theoreticall y be a permissible director' s discretion provision by authorizing state personnel to create case - by - case exemptions from the applicable emission limitations from the requirements of the SIP for excess emissions during SSM events. Given that the EPA interprets the CAA not to allow exe mptions from SIP emission limitations for excess emissions during SSM events in the first instance, it follows that providing such exemptions through the mechanism of director's discretion provision is also not permissible and compounds the problem. As wi th automatic exemptions for excess emissions during SSM events, a provision that allows discretionary exemptions would not meet the statutory requirements of CAA section s 110(a)(2)(A) and 110(a)(2)(C) that require SIPs to contain " emission limitations " to meet CAA requirements. Pursuant to CAA section 302(k), those emission

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Page 109 of 339 limitations must be " continuous. " Discretionary exemptions from otherwise applicable emission limitations render those limits less than continuou s, as is required by CAA sections 110(a)( 2)(A) and 110(a)(2)(C), and thereby inconsistent with a fundamental requirement of the CAA and thus substantially inadequate as contemplated in section CAA 110(k)(5). Such exemptions undermine the objectives of the CAA such as protection of the NAAQS and P SD increments, and they fail to meet other fundamental requirements of the CAA. In addition, discretionary exemptions undermine effective enforcement of the SIP by the EPA or through a citizen suit , because often there may have been little or no public process concerning the exercise of director's discretion to grant the exemptions, or easily accessible documentation of those exemptions, and thus even ascertaining the possible existence of such ad h oc exemptions will further burden parties who seek to evaluate whether a given source is in compliance or to pursue enforcement if it appears that the source is not. Where there is little or no public process concerning such ad hoc exemptions, or inadequat e access to relevant documentation of those exemptions, enforcement b y the EPA or through a citizen suit may be severel y compromised. As explained in the 1999 SSM Guidance, the EPA does not interpret the CAA to allow SI P provisions that would allow the exe rcise of director's discretion concerning violations to bar enforcement by

the EPA or through a citizen suit . The exercise of director's discretion to exempt conduct that would otherwise constitute a violation of the SIP would interfere with effective enfo rcement of the SIP. Such provisions are inconsistent with and undermine the enforcement structure of the CAA provided in CAA sections 113 and 304,

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Page 110 of 339 which provide independent authority to the EPA and citizens to enforce SIP provisions, including emission lim itations. Thus, SIP provisions that allow discretionary exemptions from applicable SIP emission limitations through the exercise of director's discretion are substantially

inadequate to comply

with CAA requirements as contemplated in CAA section 110(k)(5). 4. Substantial Inadequacy of Improper Enforcement Discretion Provisions The EPA believes that SIP provisions that pertain to enforcement discretion but could be construed to bar enforcement b y the EPA or through a citizen suit if the air agency declines to enforce are substantiall y inadequate to meet CAA requirements . A ty pical SIP provision that includes an impermissible enforcement discretion provision specifies certain parameters for when air agency personnel should pursue enforcement action, but is w orded in such a way that the air director's decision defines what constitutes a "violation" of the emission limitation for purposes of the SI P, i.e. , by defining what constitutes a violation, the air agency's own enforcement discretion decisions are impose d on the EPA or citizens. 81 The EPA ' s longstanding view is that SIP provisions cannot enable an air agency 's decision concerning whether or not to pursue enforcement to bar th e ability of the EPA or

81 See, e.g. , "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision," 75 FR 70888 at 70892 (Nov. 19, 2012). The SIP p rovision at issue provided that information concerning a malfunction "shall be used b y the executive secretary

in determining whether a violation has occurred and/or the need of further enforcement action." This SIP language appeared to give the state offi cial exclusive authority

to determine whether excess emissions constitute a violation.

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Page 111 of 339 the public to enforce applicable requirements. 82 Such enfo rcement discretion provisions in a SIP would be inconsistent with the enforcement structure provided in the CAA. Specificall y, the statute provides explicit independent enforcement authority to the EPA under CAA section 113 and to citizens under CAA sectio n 304. Thus, the CAA contemplates that the EPA and citizens have authority to pursue enforcement for a violation even if the air agency elects not to do so. The EPA, citizens, and any court in which they

seek to pursue an enforcement claim for violation of SIP requirements must retain the authorit y to evaluate independently whether a source's violation of an emission limitation warrants enforcement action. Potential for enforcement b y the EPA or through a citizen suit provides an important safeguard in the event that the air agency lacks resources or ability

to enforce violations and provides additional deterrence. Accordingl y, a SIP provision that operated to eliminate the authority of the EPA or the public to pursue enforcement actions because the air agen cy elects not to, would undermine the enforcement structure of the CAA and would thus be substantially inadequate to meet fundamental requirements in CAA sections 113 and 304. 5. Substantial Inadequacy of Deficient Affirmative Defense Provisions The EPA believes that SIP provisions that provide inappropriate affirmative defenses for excess emissions during SSM events are substantiall y inadequate to meet CAA requirements . A typical SIP provision that includes an impermissible affirmative defense provision could contain several deficiencies simultaneously , even though it may

82 See 1999 SSM Guidance at 3.

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Page 112 of 339 superficiall y resemble such a defense and actually contain the term "affirmative defense." There are a number of way s in which such provisions can be deficient, including: (i) extending the affirmative defense to injunctive relief; (ii) not including sufficient criteria to make the affirmative defense appropriatel y narrow; (iii) imposing the affirmative defense provision on federal technology - based emission limitations in the SIP; and (iv ) providing an affirmative defense to startup, shutdown, or other planned and routine modes of source operation. First, the EPA interprets the CAA to allow only those affirmative defense provisions that provide a potential for relief from civil penalties and not those that provide relief from injunctive relief as well. As explained in more deta il in section IV of this n otice, the EPA interprets the provisions of CAA section 110(a) to allow affirmative defenses onl y in certain narrow circumstances, as a mea ns of balancing the obligations of sources to meet emission limitations continuously as required b y CAA section 302(k) with the practical realit y that despite the most diligent of efforts, a source may violate emission standards under certain limited circumstances bey ond the source's control. For sources that meet the conditions for an affirmative defense, the EPA believes that it is appropriate to provide relief only from monetary

penalties. This limitation assures that the EPA and air agencies remain able to meet fundamental CAA requirements such as attainment and maintenance of the NAAQS, protection of PSD increments, protection of visibility , and other CAA requirements. By contrast, because SIP provisions are intended to meet fundamental CAA object ives including attainment and maintenance of the NAAQS, it would be

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Page 113 of 339 inappropriate to eliminate the availability of injunctive relief for violations, in order to ensure that the necessary

emissions reductions could be obtained through changes at the source or in source operation should that be necessary . In this way , the EPA believes that affirmative defense provisions applicable only to monetary

penalties can meet the requirements of CAA sections 110(a) and 302(k) and the enforcement structure provided in C AA sections 113 and 304. Failure to preserve the availability of injunctive relief for violations would thus be substantially inadequate to meet CAA requirements. Second, the EPA interprets the CAA to allow only those affirmative defense provisions that are narrowly drawn to provide relief under appropriate circumstances where the event was entirely bey ond the control of the owner or operator of the source and for which the source must have taken all practicable steps to prevent and to minimize the excess emissions that result from the event. Through the criteria in the 1999 SSM Guidance, the EPA has recommended the conditions that it considers appropriate for an approvable SIP provision in order to ensure that the affirmative defense is available to source s that warrant relief from monetary penalties otherwise required by the CAA. Affirmative defense provisions that are consistent with these criteria would be appropriatel y narrowl y drawn. Affirmative defense provisions that do not address these criteria ade quatel y, however, would potentially shield a source from CAA statutory penalties in circumstances that are not warranted. For example, an affirmative defense provision that did not impose a burden upon the source to establish that the violation was not th e result of an event that could have been prevented through proper maintenance would not serve to encourage better

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Page 114 of 339 maintenance. Similarl y, an affirmative defense provision that failed to impose a burden upon the source to establish that it took all possibl e steps to minimize the effect of the violation on ambient air quality , the environment, and human health, would not serve to encourage diligence in rectifying the malfunction as quickly and effectively

as possible. By addressing the recommended criteria a dequately , a state can develop a narrow provision that appropriately balances the requirement for continuous compliance against the realit y that there may be limited circumstances bey ond the source's control that justify relief from monetary

penalties. The EPA believes that failure to have an affirmative defense provision that is sufficiently narrowly drawn would fail to meet the requirements of CAA sections 110(a) and 302(k) and the enforcement structure provided in CAA sections 113 and 304. Failure to hav e a sufficientl y narrow affirmative defense would thus be substantially

inadequate to meet CAA requirements. Third, the EPA interprets the CAA to preclude SIP provisions that would create affirmative defense provisions applicable to federal regulations th at an air agency may have copied into its SIP or incorporated by reference in order to take credit for resulting emissions reductions for SI P planning purposes or to receive delegation of federal authority , such as NSPS or NESHAP. To the extent that any af firmative defense appropriate for these technology - based standards is warranted, the federal standards contained in the EPA's regulations alread y specify the appropriate affirmative defense. Creating affirmative defenses that do not exist in such federal t echnology - based standards, or providing different affirmative defenses in addition to those that do exist, would be inappropriate. Similarly , reliance on inappropriate affirmative defenses in the

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Page 115 of 339 context of PSD permitting or nonattainment NSR permitting pr ograms could likewise be problematic. Fourth, the EPA interprets the CAA to allow only affirmative defense provisions that are available for events that are entirel y bey ond the control of the owner or operator of the source. Thus, an affirmative defense m ay be appropriate for events like malfunctions, which are sudden and unavoidable events that cannot be foreseen or planned for. The underl yi ng premise for an affirmative defense provision is that the source is properl y designed, operated, and maintained, and could not have taken action to prevent the exceedance. Because the qualifying source could not have foreseen or prevented the event, the affirmative defense is available to provide relief from monetary penalties that could result from an event beyond th e control of the source. The legal and factual basis that supports the concept of an affirmative defense for malfunctions does not support providing and an affirmative defense for normal modes of operation like startup and shutdown. Such events are planne d and predictable. The source should be designed, operated, and maintained to comply with applicable emission limitations. Because startup and shutdown periods are part of a source's normal operations, the same approach to compliance with, and enforcement of, applicable emission limitations during those periods should apply as otherwise applies during a source's normal operations. If justified, the state can develop special emission limitations or control measures that apply during startup and shutdown if the source cannot meet the otherwise applicable emission limitations in the SIP. Even if a source is a suitable candidate for distinct SIP emission limitations

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Page 116 of 339 during startup and shutdown, however, that does not justify the creation of an affirmative defen se in the case of excess emissions during such periods. Because these events are planned, the EPA believes that sources should be able to comply with applicable emission limitations during these periods of time. To provide an affirmative defense for violat ions that occur during planned and predictable events for which the source should have been expected to comply is tantamount to providing relief from civil penalties for a planned violation. The EPA believes that affirmative defense provisions that include periods of normal source operation that are within the control of the owner or operator of the source, such as planned startup and shutdown, would be inconsistent with the requirements of CAA sections 110(a) and 302(k) and the enforcement structure provid ed in CAA sections 113 and 304. An affirmative defense provision that expands the availability

of the defense to planned events such as startup and shutdown would thus be substantially

inadequate to meet CAA requirements. B. SIP Call Process U nder Section 110(k)(5) S ection 110(k)(5) of the CAA provides the EPA with authority to determine whether a SIP is substantially inadequate to attain or maintain the NAAQS or otherwise comply with an y requirement of the CAA. Where the EPA makes such a determination, the EPA then has a dut y t o issue a SIP call . In addition to providing general authority for a SIP call , CAA section 110(k)(5) sets forth the process and timing for such an action. First, the statute requires the EPA to notify the state of the final finding of substantial inadequacy . The EPA t yp ically provides notice to states by

a letter from the Assistant Administrator for the Office of Air and

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Page 117 of 339 Radiation to the appropriate state officials in addition to publication of the final action in the Federal Register . Second, the statute requires the EPA to establish " reasonable deadlines (not to exceed 18 months after the date of such notice) " for the state to submit a corrective SIP submission to eliminate the inadequacy in response to the SIP call . The EPA propo ses and takes comment on the schedule for the submission of corrective SIP revisions in order to ascertain the appropriate timeframe, depending on the nature of the SIP inadequacy . Third, the statute requires that any finding of substantial inadequacy and notice to the state be made public. By undertaking a notice - and - comment rulemaking, the EPA assures that the air agency , affected sources, and members of the public all are adequate ly informed and afforded the opportunity to participate in the process. Through this proposal notice and the later final notice, the EPA intends to provide a full evaluation of the issues raised b y the Petition and to use this process as a means of giving clear guidance concerning SIP provisions relevant to SSM events that are consistent with CAA requirements. If the state fails to submit the corrective SIP revision by the deadline that the EPA finalizes as part of the SIP call , CAA section 110(c) authoriz es the EPA to " find[] that [the] State has failed to make a required submission. " 83 Once the EPA makes such a finding of failure to submit, CAA section 110(c)(1) requires the EPA to " promulgate a

83 CAA section 110(c)(1)(A) .

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Page 118 of 339 Federal implementation plan at an y time with in 2 years after the [finding] . . . unless the State corrects the deficiency , and [ the EPA] approves the plan or plan revision, before [ the EPA] promulgates such [FIP]. " Thus, if the EPA finalizes a SIP call and then finds that the air agency failed to submit a complete S IP revision that responds to the SIP call, or if the EPA disapproves such SIP revision, then the EPA will have an obligation under CAA section 110(c)(1) to promulgate a FIP no later than 2 ye ars from the date of the finding or the disapproval , if the defic iency has not been corrected before that time . 84 The finding of failure to submit a revision in response to a SIP call, or the EPA ' s disapproval of that corrective SIP revision , can also trigger sanctions under CAA section 179. If a state fails to submit a complete SIP revision that responds to a final SIP call , CAA section 179(a) provides for the EPA to issue a finding of s tate failure. Such a finding starts mandatory

18 - month and 24 - m onth sanctions clocks. The two sanctions that apply under CAA section 17 9(b) are the 2 - to - 1 emission offset requirement for all new and modified major sources subject to the nonattainment new source review program and restrictions on highway funding. However, section 179 leaves it to the EPA to decide the order in which these sanctions apply . The EPA issued an order of sanctions rule in 1994 but did not specify

the order of sanctions where a state fails to submit or submits a deficient SIP revision in response to a SI P call . 85 As the EPA has done in other SI P calls,

84 The 2 - ye ar deadline does not necessaril y appl y to FIPs following disapproval of a tribal implementation plan. 85 See "Selection of Sequence of Mandatory Sanctions for Findings Made Pursuant to Section 179 of the Clean Air Act," 59 FR 39832 (Aug. 4, 1994), codified at 40 CFR 52.31.

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Page 119 of 339 the EPA proposes that the 2 - to - 1 emission offset requirement will appl y for all new sources subject to the nonattainment new source review program 18 months following such fin ding or disapproval unless the s tate corrects the deficiency before that date. The EPA proposes that the highway funding restrictions sanction will also apply 24 months following such finding or disa pproval unless the s tate corrects the deficiency before that date. The EPA is proposing that the provisions in 40 CFR 52.31 regarding staying the sanctions clock and deferring the imposition of sanctions would also apply . Mandatory

sanctions under CAA section 179 generally apply onl y in nonattainment areas. By

its definition, the emission offset sanction applies only in areas required to have a part D NSR program, ty pically areas designated nonattainment. Section 179(b)(1) expressly limits the highway

f unding restriction to nonattainment areas. Additionally , the EPA interprets the section 179 sanctions to apply on ly in the area or areas of the s tate that are subject to or required to have in place the deficient SIP and for the pollutant or pollutants the specific SIP element addresses. For example, if the deficient provision applies statewide and applies for all NAAQS pollutants, then the mandatory

sanctions would apply

in all areas designated nonattainment for all NAAQS within the state. In this case, th e EPA will evaluate the geographic scope of potential sanctions at the time it makes a final determination whether the state's SIP is substantially inadequate and issues a SIP call, as this may vary depending upon the provisions at issue. C. SIP Call Timi ng U nder Section 110(k)(5) If the EPA finalizes a proposed finding of substantial inadequacy and a proposed SIP call for any

state, CAA section 110(k)(5) requires the EPA to establish a SIP

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Page 120 of 339 submission deadline by

which the state must make a SIP submission to rectify the identified deficiency . Pursuant to CAA section 110(k)(5), the EPA has authority to set a SIP submission deadline up to 18 months from the date of the final finding of inadequacy . The EPA is proposing that if it promulgates a final finding of inadequacy and a SIP call for a state, the EPA will establish a date 18 months from the date of promulgation of the final finding for the state to respond to the SIP call . If, for example, the EPA's final findings are signed and disseminate d in June 201 3, th en the SIP submission deadline for each of the states subject to the final SIP call would fall in December 2014. Thereafter, the EPA will review the adequacy of that new SIP submission in accordance with the CAA requirements of sections 110(a), 110(k) , 110(l), and 193, including the EPA's interpretation of the CAA reflected in the SSM Policy as clarified and updated through this rulemaking. The EPA is proposing the maximum time permissible under the CAA for a state to respond to a SIP call. The EPA be lieves that it is appropriate to provide states with the maximum time allowable under CAA section 110(k)(5) in order to allow states sufficient time to make SIP revisions following their own SIP development process. The EPA considers this a reasonable time period for the affected states to revise their state regulations, provide for public input, process the SIP revision through the state's own procedures, and submit the SI P revision to the EPA. Such a schedule will allow for the necessary SIP development p rocess to correct the deficiencies, yet still achieve the necessary SIP improvements as expeditiously as practicable. The EPA acknowledges that

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Page 121 of 339 the longstanding existence of man y of the provisions at issue, such as automatic exemptions for SSM events, may have resulted in undue reliance on them as a compliance mechanism by some sources. As a result, development of appropriate SIP revisions may

entail reexamination of the applicable emission limitations themselves, and thi s process may

require the maximum ti me allowed by the CAA. Nevertheless, the EPA encourages the affected states to make the necessary revisions in as timely

a fashion as possible and encourages the states to work with the respective EPA Regional Office as they develop the SIP revisions. The EPA notes that the SIP calls that it is proposing for affected states in this action would be narrow and apply onl y to the specific SIP provisions determined to be inconsistent with the requirements of the CAA. To the extent that a state is concerned that elimination of a particular aspect of an existing emission limitation , such as an impermissible exemption, will render that emission limitation more stringent than the state originally intended and more stringent than needed to meet the CAA requirements i t was intended to address , the EPA anticipates that the state will revise the emission limitation accordingl y , but without the impermissible exemption or other feature that necessitated the SI P call . Finally , the EPA notes that its authority under CAA sec tion 110(k)(5) does not extend to requiring a state to adopt a particular control measure in its SIP in response to the SIP call . Under principles of cooperative federalism, the CAA vests air agencies with substantial discretion to develop SIP provisions, so long as the provisions meet the legal

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Page 122 of 339 requirements and objectives of the CAA. 86 Thus, the issuance of a SIP call should not be misconstrued as a directive to the state in question to adopt a particu lar control measure. The EPA is merel y proposing to require that affected states make a SIP revision to remove or revise existing SI P provisions that fail to comply with fundamental requirements of the CAA. The states retain discretion to remove or revise those provisions as they

determine best, so long as they bring the ir SI Ps into compliance with the requirements of the CAA. 87 **IX. What is the EPA proposing for each of the specific SIP provisions identified**  **in the Petition?** A. Overview of the EPA ' s Evalua tion of Specific SIP Provisions In reviewing the Petitioner's concerns with respect to the specific SI P provisions identified in the Petition, the EPA notes that most of the provisions relate to a small number of common issues. As the EPA acknowledge s in section II.A of this notice, many of these provisions are as old as the original SIPs that the EPA approved in the earl y 1970s, when the states and the EPA had limited experience in evaluating the provisions' adequacy , enforceability , and consistency with CAA requirements.

86 See , Virginia, et al. v. EPA , 108 F.3d 1397 (D.C. Cir. 1997) (SI P call remanded and vacated because, inter alia , the EPA had issued a SIP call that required states to adopt a particular control measure for mobile sources). 87 Notwithstanding the latitude states have in developing SIP provisions, the EPA is required to assure that states meet the basic legal criteria for SIPs. See , Michigan, et al. v. EPA , 213 F.3d 663, 686 (D.C. Cir. 2000) (upholding NOx SI P call because, inter alia , the EPA was requiring states to meet basic legal requirement that SI Ps comply with section 110(a)(2)(D), not dictating the adoption of a particular control measure).

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Page 123 of 339 In some instances the EPA does not agree with the Petitioner's reading of the provision in question , or with the Petitioner's conclusion that the provision is inconsistent with the requirements of the CAA. However, given the common is sues that arise in the Petition for multiple states, there are some overarching conceptual points that merit discussion in general terms before delving into the facts and circumstances of the specific SIP provisions in each state. The EPA solicits comment on all aspects of this proposal. 1. Automatic Exemption Provisions A significant number of provisions identified by the Petitioner pertain to existing SIP provisions that create automatic exemptions for excess emissions during periods of startup, shutdown, or malfunction. Occasionally , these provisions also pertain to exemptions for excess emission that occur during maintenance , load change, or other ty pes of normal source operation . These provisions ty picall y provide that a source subject to a specific S IP emission limitation is exempted from compliance during startup, shutdown, and malfunction, so that the excess emissions are defined as not violations. Often, these provisions are artifacts of the earl y phases of the SIP program, before state and EPA regulators recognized the implications of such exemptions. Whatever the genesis of these existing SI P provisions, however, these automatic exemptions from emission limitations are not consistent with the CAA, as the EPA has stated in its SSM Policy through many

iterations . After evaluating the Petition, the EPA proposes to determine that a number of states have existing SIP provisions that create impermissible automatic exemptions for excess emissions during malfunctions or during startup, shutdown, or oth er ty pes of

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Page 124 of 339 normal source operation. In those instances where the EPA agrees that a SIP provision identified by

the Petitioner contains such an exemption contrary to the requirements of the CAA, the EPA is proposing to grant the Petition and to take action to rectify this concern . 2. Director ' s Discretion Exemption Provisions Another category

of problematic SIP provision identified by the Petitioner is exemptions for excess emissions that, while not automatic, are exemptions for such emissions granted at the discretion of state regulatory personnel. In some cases, the SI P provision in question may provide some minimal degree of process and some parameters for the granting of such discretionary exemptions, but the ty

pical provision at issue allows state personnel to decide unilaterally and without meaningful limitation s that what would otherwise be a violation of the applicable emission limitation is instead exempt . Because the state personnel have the authority to decide that the excess emis sions at issue are not a violation of the applicable emission limitation, such a decision would transform the violation into a non - violation, thereby barring enforcement by

the EPA or others. The EPA refers to this type of provision as a "director's discr etion" provision, and the EPA interprets the CAA generally to forbid such provisions in SIPs because they have the potential to undermine fundamental statutory objectives such as the attainment and maintenance of the NAAQS and to undermine effective enforc ement of the SIP. As discussed in section VII.D of this notice , unbounded director's discretion provisions purport to allow unilateral revisions of approved SIP provisions without meeting the applicable statutory

substantive and procedural requirements for SI P revisions. The

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Page 125 of 339 specific SIP provisions at issue in the Petition are especiall y inappropriate because they purport to allow discretionary creation of case - by - case exemptions from the applicable emission limitations, when the CAA does not permit any such exemptions in the first instance. The practical impact of such provisions is that in effect they transform an enforcement discretion decision by the state ( e.g. , that the excess emission from a given SSM event should be excused for some reason) into an exemption from compliance that also prevents enforcement by the EPA or through a citizen suit . The EPA's longstanding SSM Policy

has interpreted the CAA to preclude SIP provisions in which a state's exercise of its own enforcement discretion bars en force ment by the EPA or through a citizen suit . W here the EPA agrees that a SIP provision identified by the Petitioner contains such a discretionary exemption contrary to the requirements of the CAA , the EPA is proposing to grant the Petition and to call for the state to rectify the problem . 3. State - only

Enforcement Discretion Provisions The Petitioner identified existing SIP provisions in many states that ostensibly pertain to parameters for the exercise of enforcement discretion by state personnel for vi olations due to excess emissions during SSM events. The EPA's SSM Policy has consistently

encouraged states to utilize traditional enforcement discretion within appropriate bounds for such violations and, in the 1982 SSM Guidance, explicitly recommended criteria that states might consider in the event that they elected to formalize their enforcement discretion with provisions in the SI P. Ithas been understood from the outset , however, that such enforcement discretion provisions in a SI P would be "state - onl y, " meaning that the provisions apply only to the state's own enforcement

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Page 126 of 339 personnel and not to the EPA or to others. The EPA has determined that a number of states have SIP provisions that , when evaluated carefully , could reasonabl y be construed to allow the state to make enforcement discretion decisions that would purport to foreclose enforcement by the EPA under CAA section 113 or by citizens under section 304 . Inthose instances where the EPA agrees that a specific provision could have the effect of impeding adequate enforcement of the requirements of the SIP by parties other than the state, the EPA is proposing to grant the Petition and to take action to rectify the problem. By contrast, where the EPA ' s eva luation indicates that the existing provision on its face or as reasonabl y construed could not be read to preclude enforcement b y parties other than the state, the EPA is proposing to den y the Petition , and the EPA is taking comment on this issue in partic ular to assure that the state and the EPA have a common understanding that the provision does not have an y impact on potential enforcement b y the EPA or through a citizen s uit . This process should serve to ensure that there is no misunderstanding in the future that the correct reading of the SIP provision would not bar enforcement by the EPA or through a citizen s uit when the state elected to exercise its own enforcement discretion. The EPA notes that another method by which to eliminate any

potential ambi guity about the meaning of these enforcement discretion provisions would be for the state to revise its SIP to remove the provisions . Because these provisions are only applicable to the state, the EPA ' s current view is that they need not be included within the SIP. Thus, the EPA supports states that elect to revise their SIPs to remove these provisions t o avoid

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Page 127 of 339 any unnecessary

confusion. 4. Adequacy

of Affirmative Defense Provisions In addition to its overarching request that the EPA revise its interpretation of the CAA and forbid an y form of affirmative defense, the Petitioner also identified specific existing affirmative defense provisions in SIPs that the Petitioner contended are not consistent with the EPA's SSM Policy . In general, these provisions are structured as affirmative defense provisions, but the Petitioner expressed concern that they fail to address some or all of the criteria for such provisions that the EPA recommended in the 1999 SSM Guidance. In reviewing the claims of the Petitioner with respect to this ty pe of alleged SIP inadequacy , the EPA is reevaluating each of the challenged affirmative defense provisions on the merits to determine whether it provides the ty pes of assurances that the EPA has recommended as necessary to meet CAA requ irements. As the SSM Policy is guidance, it does not require an y particular approach, but it does reflect the EPA's interpretation of the CAA with respect to what could constitute an acceptable affirmative defense provision. For each of these provisions id entified by the petitioners , the EPA proposes to grant or to deny the Petition, based on the EPA's evaluation as to whether the provision at issue provides adequate criteria to provide only a narrow affirmative defense for sources under certain circumstanc es consistent with the overarching CAA objectives, such as attaining and maintaining the NAAQS. In addition, as discussed in section VII.B of th is notice , the EPA is also proposing to grant the Petition with respect to any identified provision that creates an affirmative defense applicable during planned startup

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Page 128 of 339 and shutdown events, because such provisions are not consistent with the requirements of the CAA. 5. Affirmative Defense Provisions Applicable to a " Source or Small Group of Sources " The Petitioner specifically objected to existing provisions in SI Ps for a few states that allow an affirmative defense for certain categories of sources to be based on an after the - fact showing that the excess emissions during a particular SSM event did not cause a violation of the NAAQS or PSD increments. The Petitioner argued that these affirmative defense provisions are inconsistent with the CAA and with the EPA's own recommendations for affirmative defenses in the SSM Policy , because the provisions provide the possibility

for an affirmative defense to be used by sources that would fall into the category

of "a source or small group of sources that has the potential to cause an exceedance of the NAAQS or PSD increments." 88 The EPA acknowledges that its 1999 SSM Guidance recommended against affirmative defense provisions in SIPs for sources that have the potential , either individually

or in small groups, to have excess emissions during SSM events that could cause a violation of the NAAQS or PSD increments. The EPA recommended that states utilize an enforcement discretion approach, rather than create an affirmative defense provision, for such sources. However **,** the EPA's SSM Policy is guidance, and the facts

88 See , 1999 SSM Guidance at 4, and Attachment at 2, 3, and 5. Footnote 2 to that d ocument articulates the reasoning behind the EPA's recommendation against such provisions, at least for some sources and for some NAAQS.

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Page 129 of 339 and circumstances of a particular situation may justify adopting a different approach. The EPA has evaluated each of the affirmative defense provisions identified by the Petitioner on the facts and circumstances of the particular provision. For each of these provisions, the EPA proposes to grant or to deny the Petition, based on an evaluation of whether the specific provision at issue in an individual SIP contains adequate criteria to achieve the objective of providi ng a narrow affirmative defense for sources under certain circumstances consistent with the overarching CAA objectives , such as attaining and maintaining the NAAQS. B. Affected States in EPA Region I 1. Maine a. Petitioner ' s Anal ys is The Petition er first objected to a specific provision in the Maine SIP that provides an exemption for certain boilers from otherwise applicable SI P visible emission limits during startup and shutdown (06 - 096 - 101 Me. Code R. § 3). 89 The provision exempts violations of the otherwise applicable SIP emission limitations for boilers over a certain rated input capacit y "during the first 4 hours following the initiation of cold startup or planned shutdown." The Petitioner recognized that this provision might operate as an affi rmative defense because the exemption is only available once the person claiming an "exemption" establishes that the facilit y was being run to minimize emissions. The provision does not make clear who is authorized to determine whether the visible

89 Petition at 43 - 44.

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Page 130 of 339 emission limits apply . The Petitioner argued that one plausible interpretation of this provision is that state officials are "authorized to decide that the exemption applies and therefore preclude enforcement by the EPA and by

citizens." 90 The Petitioner argued that such an interpretation of this provision precluding enforcement b y the EPA or citizens, both for civil penalties and injunctive relief, is forbidden by the EPA ' s interpretation of the CAA. Accordingl y, the Petitioner requested that this provision be eliminated from the SIP. Second, the Petitioner objected to a provision that empowers the state to "exempt emissions occurring during periods of unavoidable malfunction or unplanned shutdown fro m civil penalt y under section 349, subsection 2" (06 - 096 - 101 Me. Code R. § 4) . The Petitioner noted that the provision "clearl y provides an exemption at the discretion of the department." 91 The Petitioner argued that such a provision provides exemptions fro m the otherwise applicable SIP emission limitations, and such exemptions are inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy . Further, the Petitioner argued that the provision preclude s enforcement by the EPA or citizen s, both for civil penalties and injunctive relief, and that the EPA ' s interpretation of the CAA would forbid such a provision. b. The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise

90 Petition at 44. 91 Petition at 44.

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Page 131 of 339 applicable SIP emission limit ations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP pr ovisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that inclusion of such an exemption in 06 - 096 - 101 Me. Code R. § 3 from the otherwise applicable SIP emission limitation for violations during the first 4 hours following cold startup or planned shutdown of boilers with a rat ed input capacit y of more than 200 million BTU per hour is a substantial inadequacy

and renders this specific SIP provision impermissible. With respect to the Petitioner's concern that this exemption could preclude enforcement b y the EPA or citizens , the EPA agrees that this is one of the critical reasons why such a provision is impermissible under the CAA. By having a SIP provision that defines what would otherwise be violations of the applicable emission limitations as non violations, the state has effec tivel y negated the ability of the EPA or the public to enforce against those violations. The EPA also believes that even if 06 - 096 - 101 Me. Code R. § 3 is interpreted to allow the source to make the required demonstration only in the context of an

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Page 132 of 339 enforcem ent proceeding, the conditions set forth in the provision do not render it an acceptable affirmative defense provision. As explained in sections IV and VII.C of this notice, the EPA believes that affirmative defenses are onl y permissible under the CAA in the case of events that are bey ond the control of the source, i.e. , malfunctions. A ffirmative defense provisions are not appropriate in the case of planned source actions, such as cold startup or planned shutdown , because sources should be expected to compl y with applicable emission limitations during those normal planned and predicted modes of source operation. Finally , the EPA believes that 06 - 096 - 101 Me. Code R. § 4 is impermissible under the CAA as intertpreted in the EPA's SSM Policy as an unbounded di rector's discretion provision. The provision authorizes a state official "to exempt emissions occurring during periods of unavoidable malfunction or unplanned shutdown from civil penalty under section 349, subsection 2." Although the reference to section 3 49, subsection 2 is to a Maine state penalt y provision, the EPA believes that the provision is unclear as written. This provision could be read to mean that once the state official has exempted excess emissions during malfunctions from otherwise applicable SIP limitations, those excess emissions are not subject to any penalties, including penalties under CAA section 113 . As disc ussed in section VII.A of this not ic e, such director ' s discretion provisions are impermissible. Such an interpretation would make the state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation, which could preclude enforcement b y the EPA or the public who might disagree about whether enforcement action i s warranted. Most importantly , however, the

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Page 133 of 339 provision may

be read to authorize the state official to create an exemption from the emission limitation, and such an exemption is impermissible in the first instance . The EPA believes that i nclusion of an unbounded director ' s discretion provision in 06 - 096 - 101 Me. Code R. § 4 is thus a substantial inadequacy and renders this specific SIP provision impermissible for this reason. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to 06 - 096 - 101 Me. Code R. § 3. The EPA believes that this provision allows for exemptions from the otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitat ions in SIPs as required b y sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the state has defined violations in a way that would interfere with effective enforcement by the EPA and the public for ex cess emissions during these events as provided in CAA section s 113 and 304. E ven if the EPA were to consider 06 - 096 - 101 Me. Code R. § 3 to provide an affirmative defense rather than an automatic exemption, the provision is not a permissible affirmative def ense provision consistent with the requirements of the CAA as interpreted in the EPA's recommendations in the EPA's SSM Policy . The EPA also proposes to grant the Petition with respect to 06 - 096 - 101 Me. Code R. § 4. The EPA believes that this provision, as written, applies only to state penalties. However, the EPA is concerned that the provision could cause confusion among the public, the regulated community , and the courts, who might interpret the provision as

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Page 134 of 339 applyi ng to both state and federal penalties. Of course, such an interpretation would seem to allow for exemptions from otherwise applicable emission limitations through a state official's unilateral exercise of unbounded discretionary authorit y and therefore be inconsistent with the fundamental requirements of the CAA with respect to SIPs and SI P revisions. To avoid an y s uch misunderstanding, the EPA is proposing to find that these provisions are substantially inadequate to meet CAA requirements and thus proposi ng to issue a SIP call with respect to these provisions. 2. New Hampshire a. Petitioner's Anal ys is The Petitioner objected to two generall y applicable provisions in the New Hampshire SIP that allow emissions in excess of otherwise applicable SI P emissi on limitations during "malfunction or breakdown of any component part of the air pollution control equipment." 92 The Petitioner argued that the challenged provisions provide an automatic exemption for excess emissions during the first 48 hours when any comp onent part of air pollution control equipment malfunctions (N.H. Code R. Env - A 902.03) and further provide that "[t]he director may ... grant an extension of time or a temporary variance" for excess emissions outside of the initial 48 - hour time period (N.H. Code R. Env - A 902.04). The Petitioner argued that N.H. Code R. Env - A 902.03 is an impermissible automatic exemption because it "provides that if certain conditions existed during a period of excess emissions, then those exceedances would not be considered

92 Petition at 52 - 53.

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Page 135 of 339 violations." 93 The Petitioner argued that such exemptions are inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. The Petitioner further argued that both N.H. Code R. Env - A 902.03 and N.H. Code R. Env - A 902.04 appear "to authorize the division to allow [exemptions], which could be interpreted to preclude enforcement b y EPA or citizens" 94 for the excess emissions that would otherwise be violations of applicable SIP emission limitations. Second, the Petitioner objected to two specific provisions in the New Hampshire SIP which provide source - specific exemptions for periods of startup for "any process, manufacturing and service industry " (N.H. Code R. Env - A 1203.05) and for pre - June 1974 asphalt plants during startup, provided they are at 60 - percent opacit y for no more than 3 minutes (N.H. Code R. Env - A 1207.02). 95 The Petitio ner recognized that EPA permits source category - specific emission limitations for startup and shutdown if certain conditions are met. The Petitioner argued, however, that "[o]f the seven criteria EPA considers adequate to justify a source specific emission limit during startup and shutdown, section 1207.02 arguabl y meets onl y one of them and section 1203.05 meets none at all." 96 The Petitioner thus requested that EPA require New Hampshire to remove

93 Petition at 52. 94 Petition at 53. 95 Petition at 52 - 53. 96 Petition at 53.

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Page 136 of 339 both provisions from the SIP. b. The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs mus t contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitation must be co nsidered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundame ntal requirements of the CAA with respect to emission limitations in SIPs. The first provision identified by the Petitioner, N.H. Code R. Env - A 902.03, explicitly states that "increased emissions shall be allowed" during "malfunction or breakdown of an y co mponent part of the air pollution control equipment." The third provision identified by

the Petitioner, N.H. Code R. Env - A 1203.05, provides that applicable SIP emission limitations apply "for any process, manufacturing and service industry " "[e]xcept duri ng periods of start - ups and warm - ups." Both of these provisions allow automatic exemptions during periods of startup from otherwise applicable SIP emission limitations for excess emissions and thus are inconsistent with the requirements of the CAA as inter

preted in the EPA's SSM Policy . The EPA believes that inclusion of such exemptions from otherwise applicable SIP emission limitations in these provisions

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Page 137 of 339 is a substantial inadequacy and renders these SIP provisions impermissible. Similarly , N.H. Code R. E nv - A 1203.05 does not appear to comply with the Act's requirements as interpreted in the EPA's SSM Policy for source category - specific rules for startup and shutdown. N.H. Code R. Env - A 1203.05 establishes a visible emissions limit for "an y process, manufa cturing and service industry " but further states that this limit does not apply

during startups. Automatic exemptions from otherwise applicable SIP emission limitations for excess emissions during periods of startup are not permissible under the CAA. As di scuss ed in section VII.A of this notice, states may elect to develop alternati ve emission limitations or other forms of enforceable control measures or techniques that apply during startup or shutdown, but exemptions for excess emissions during such periods are inconsistent with the fundamental requirements of the CAA. Similarly , N .H. Code R. Env - A 1207.02 provided an alternate opacit y limit, "60 percent opacit y, No. 3 on the Ringelmann Smoke Chart," for pre - June 1974 asphalt plants during startups. The EPA believes that this alternate emissions limit does not meet the elements of the EPA's SSM Policy interpreting the CAA for establishing source - specific startup and shutdown alternative limits. However, after the Petitioner filed its Petition, the EPA acted on a SIP revision from New Hampshire correcting N.H. Code R. Env - A 1207.02 an d renaming that provision as N.H. Code R. Env - A 2703.02. The N.H. Code R. Env - A 2703.02, as rewritten and submitted by New Hampshire, corrected the deficiencies identified by

the Petitioner and removed the alternative limitations applicable during startups for pre - June 1974 asphalt plants. The EPA approved New Hampshire's SIP

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Page 138 of 339 revision with respect to N.H. Code R. Env - A 2703.02 on August 22, 2012. 97 Thus, the Petitioner's objection to this provision is moot. Finally , the EPA believes that N.H. Code R. Env - A 902.04 is impermissible under the CAA as interpreted in the EPA's SSM Policy , because it includes an unbounded director's discretion provision. The provision authorizes a state official to grant "an extension of time" to the time - limited exemption provided by N.H. Code R. Env - A 902.03 or a "temporary

variance" to an applicable SIP emission limitation during malfunctions of air pollution control equipment. This provision could be read to mean that once the state official has granted a time extension or tempo rary variance for excess emissions during malfunctions from otherwise applicable SIP limitations, those excess emissions are not violations. A s discusse d in section VII.A of this not ic e , such director's discretion provisions are impermissible. Such an inte rpretation would make the state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation, which could preclude enforcement b y the EPA or the public who might disagree about whether enforcement action is warranted. Most importantly , however, the provision may

be read to authorize the state official to create an exemption from the emission limitation, and such an exemption is impermissible in the first instance . The EPA believes that i nclusion of an unbounded dir ector ' s discretion provision in N.H. Code R. Env - A 902.03 is thus a substantial inadequacy and renders this specific SIP provision impermissible for this reason.

97 See 77 FR 50561 at 50 608.

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Page 139 of 339 c. The EPA's Proposal The EPA proposes to grant the Petition with respect to N.H. Code R. E nv - A 902.03 and N.H. Code R. Env - A 1203.05. The EPA believes that both of these provisions allow for automatic exemptions from otherwise applicable emission limitations and that such outright exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the state has defined violations in a way that would interfere with effective enf orcement b y the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find that these provisions are substantially inadequate to meet CAA requirements and thus is propo sing to issue a SIP call with respect to these provisions. The EPA proposes to grant the Petition with respect to N.H. Code R. Env - A 902.04. The EPA believes that this provision allows for exemptions from otherwise applicable emission limitations through a state official's unilateral exercise of discretionary

authority that is unbounded. Such provisions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required b y sections 110(a)(2)(A), 110(a)(2)( C), and 302(k). For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to this provision. The EPA proposes to deny the Petition with resp ect to N.H. Code R. Env - A 1207.02. New Hampshire has corrected the inadequacy identified b y the Petitioner, and

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Page 140 of 339 the EPA approved the SIP revision. Therefore, the Petitioner's objection is moot. 3. Rhode I sland a. Petitioner's Anal ys is The Petitioner obj ected to a generally applicable provision in the Rhode I sland SIP that allows for a case - by - case petition procedure whereb y a source can obtain a variance from state personnel under R.I. Gen. Laws § 23 - 23 - 15 to continue to operate during a malfunction of i ts control equipment that lasts more than 24 hours, if the source demonstrates that enforcement would constitute undue hardship without a corresponding benefit (25 - 4 - 13 R.I. Code R. § 16.2). 98 , 99 The Petitioner argued that if the state grants the source's pe tition and provides a variance allowing the source to continue to operate, the facility could be excused from compliance with otherwise applicable SI P emission limitations during malfunction periods. The Petitioner argued that this provision could be read to preclude enforcement by the EPA or citizens in the event that the state elects not to treat the event as a violation of SIP emission limitations. Thus, the Petitioner argued, the provision is inconsistent with the CAA as interpreted in the EPA's SSM Pol icy because it allows the state to make a unilateral decision that the excess emissions were

98 Petition at 63 - 65. 99 The EPA notes that the Petitioner also identified several additional provision s , 25 - 4 - 13 R.I . Code R. §§ 13.4.1(a), 27.2.3 and 25 - 4 - 39 R.I. Code R. §§ 39.5.4, 3 9.7.5(a), 39.7.6(b), 39.7.7(e), 39.7.8(f), 39.7.9(e), 39.7.11(c)(2) , that it alleged are inconsistent with the CAA and the EPA ' s SSM Policy . However, the Petitioner did not request that the EPA address th ose provision s in its remedy request, and thus the EPA is not addressing th ose provision s in this action. The EPA may elect to evaluate those provisions in a later action.

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Page 141 of 339 not a violation and thus purports to bar enforcement for the excess emissions by the EPA and citizens. b. The EPA's Evaluation The EPA agrees that the CAA does n ot allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that excess emissions during malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission lim itations in SIPs. The EPA believes that 25 - 4 - 13 R.I. Code R. § 16.2 is impermissible under the CAA as interpreted in the EPA's SSM Policy , due to an insufficiently bounded director's discretion provision. The provision specifies a mechanism for a variance to be granted "[i]n the event that the malfunction of an air pollution control sy stem is expected or may reasonabl y be expected to continue for longer than 24 hours." This provision could be read to mean that once a state official has exempted excess emis sions during malfunctions from otherwise applicable SIP limitations, those excess emissions are not violations. A s discusse d in section VII.A of this n otic e , such director's discretion provisions are impermissible. Such an interpretation would make the state official the

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Page 142 of 339 unilateral arbiter of whether the excess emissions in a given event constitute a violation, which could preclude enforcement b y the EPA or the public who might disagree about whether enforcement act ion is warranted. Most importantly , however, the provision may be read to authorize the state official to create an exemption from the emission limitation, and such an exemption is impermissible in the first instance . The EPA believes that i nclusion of an insufficiently bounded director ' s discretion provision in 25 - 4 - 13 R.I . Code R. § 16.2 is thus a substantial inadequacy and renders this specific SIP provision impermissible for this reason. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to 25 - 4 - 13 R.I. Code R. § 16.2. The EPA believes that this provision allows for exemptions from otherwise applicable emission limitations through a state official's unilateral exercise of discretionary

authority that is insufficiently

bounded. Su ch provisions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to this provision. C. Affected States in EPA Region II 1. New Jersey a. Petitioner's Anal ys is The Petitioner objected to two specific provisions in the New Jersey SIP that

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Page 143 of 339 allow for automatic exemptions for excess emissions during emergency situations. 100 The Petitioner objected to the first provision because it provides industrial process units that have the potential to emit sulfur compounds an exempt ion from the otherwise applicable sulfur emission limitations where "[t]he discharge from an y stack or chimney [has] the sole function of relieving pressure of gas, vapor or liquid under abnormal emergency conditions" (N.J. Admin. Code 7:27 - 7.2(k)(2)). Suc h an exemption is inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violat ions. The Petitioner objected to the second provision because it provides electric generating units (EGUs) an exemption from the otherwise applicable NOx emission limitations when the unit is operating at "emergency capacity ," also known as a "MEG alert," which is statutorily defined as a period in which one or more EGUs is operating at emergency

capacit y at the direction of the load dispatcher in order to prevent or mitigate voltage reductions or interruptions in electric service, or both (N.J. Admin. Cod e 7:27 - 19.1). The Petitioner argued that this source - specific exemption from the emission limitations "cannot ensure compliance with the NAAQS and PSD increments for NOx because ambient air quality is nowhere mentioned as a relevant consideration." 101 b. Th e EPA's Evaluation

100 Petition at 53 - 54. 101 Petition at 54.

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Page 144 of 339 The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations of such limitations, whether or n ot the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that excess emissions during emergency conditions, however defined, are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The first provision identified by the Petitioner explicitly

states that emission limitations of sulfur compounds "shall not appl y" to emissions coming from a stack or a chimney during "abnormal emergency condition s," when the discharges are solely to relieve pressure of gas, vapor, or liquid. The EPA believes that inclusion of such an exemption from emission limitations in N.J. Admin. Code 7:27 - 7.2(k)(2) is a substantial inadequacy

and renders this specific SIP pro vision impermissible. The EPA notes that this exemption is impermissible even though the state has imposed the limitation that such exemption would apply onl y during "abnormal emergency conditions." The core problem remains that the provision provides an i mpermissible exemption from the sulfur compound emission limitations otherwise applicable under the SIP. With regard to the second provision raised b y the Petitioner (N.J. Admin. Code 7:27 - 19.1), the EPA disagrees that it is a substantial inadequacy in th e SIP, because the

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Page 145 of 339 exemption from the NOx emission limitations ceased to be applicable after November 15, 2005. Because the statute's exemption applies only to those emergency situations, or "MEG alerts," that occur "on or before November 15, 2005" (N.J. A dmin. Code 7:27 - 19.1), the Petitioner's claim is moot. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to N.J. Admin. Code 7:27 - 7.2(k)(2). The EPA believes that this provision allows for an exemption from the otherwise applicabl e emission limitations, and that such an exemption is inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required b y CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For this reason, the EPA is pro posing to find that this provision is substantially inadequate to meet CAA requirements and thus is proposing to issue a SIP call with respect to this provision. The EPA proposes to den y the Petition with respect to N.J. Admin. Code 7:27 - 19.1, because its effectiveness expired on November 15, 2005, and therefore Petitioner's claim with regard to the impermissibility of this provision is moot. 2. [Reserved] D. Affected States in EPA Region III 1. Delaware a. Petitioner's Anal ys is The Petitioner objected to seven provisions in the Delaware SIP that provide exemptions during startup and shutdown from the otherwise applicable SI P emission

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Page 146 of 339 limitations. 102 The seven source - specific and pollutant - specific provisions that provide exemptions during periods of startup and shutdown are: 7 - 1100 - 1104 Del. Code Regs § 1.5 (Particulate Emissions from Fuel Burning Equipment) ; 7 - 1100 - 1105 Del. Code Regs § 1.7 (Particulate Emissions from Industrial Process Operations); 7 - 1100 - 1108 Del. Code Regs § 1.2 (Sulfur Dioxide Emissi o ns from Fuel Burning Equipment); 7 - 1100 - 1109 Del. Code Regs § 1.4 (Emissions of Sulfur Compound s From Industrial Operations); 7 - 1100 - 1114 Del. Code Regs § 1.3 (Visible Emissions); 7 - 1100 - 1124 Del. Code Regs § 1.4 (Control of Volatile Organic Compound Emis sions) ; and 7 - 1100 - 1142 Del. Code Regs § 2.3.5 (Specific Emission Control Requirements) . These provisions provide exemptions to the emission limitations during startup and shutdown when "the emissions . . . during start - up and shutdown are governed b y an operation permit issued pursuant to the provisions of 2.0 of 7 DE Admin. Code 1102." ( E.g. , 7 - 1100 - 1104 Del. Code Regs § 1.5 .) The Petitioner objected to these provisions because they provide a state official with the discretion, through the permitting pr ocess, to exempt sources from otherwise applicable SIP emission limitations or to set alternative limitations for periods of startup and shutdown. The Petitioner argued that such discretion is not permissible because the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. Moreover, the Petitioner argued that any alternative limits for periods of startup and shutdown created by the state official through the permitting process do not meet the requirements of the Act as interpreted in the EPA's

102 Petition at 28 - 29.

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Page 14 7 of 339 SSM Policy , because there is no requirement in the provision that the limits be narrowly tailored, source - specific, created in consultation with the EPA, and approved into the Delaware SIP b y the EPA. b. The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applic able emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup and shutdown could be deemed not a violation of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the seven provisions raised by the Petitioner are impermissible because they are unbo unded director's discretion provisions, created through the state permitting program, in which state officials are provided unbounded discretion to set alternative limits and could therefore provide an outright exemption from the emission limitations. In e ach of the provisions raised by the Petitioner, an exemption from the SIP' s emission limitations during periods of startup and shutdown is automatically

granted if the permit to which the source is subject has terms or conditions

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Page 148 of 339 governing emissions during startup and shutdown. The SI P provisions therefore vest state officials with the unilateral power to establish alternative limits, or to create an exemption altogether, in permits b y deeming such periods of excess emissions during startup and shutdown per

missible. Were the state to exercise its discretion and decide on a case - by case basis that such an event was not a violation of the emission limitations, the EPA and citizens could be precluded from enforcement. More importantly , however, an exemption fro m the emission limitations is impermissible in the first instance, and these provisions purport to authorize state officials in the permitting context to grant such exemptions. These provisions therefore undermine the SIP's emission limitations and the emi ssions reductions they

are intended to achieve and render them less enforceable by the EPA or through a citizen suit . The EPA believes that the inclusion of insufficiently bounded director's discretion provisions in 7 - 1100 - 1104 D el. Code Regs § 1.5, 7 - 1100 - 1105 Del. Code Regs § 1.7, 7 - 1100 - 1108 Del. Code Regs § 1.2, 7 - 1100 - 1109 Del. Code Regs § 1.4, 7 - 1100 - 1114 Del. Code Regs § 1.3, 7 - 1100 - 1124 Del. Code Reg s § 1.4, and 7 - 1100 - 1142 Del. Code Regs § 2.3.5 is thus a substantial inadequacy and renders these sp ecific SIP provisions impermissible for this reason. In addition, the EPA agrees with the Petitioner that while the CAA, as interpreted in the EPA's SSM Policy, allows states to set source category - specific alternative emission limitations or other forms of enforceable control measures or techniques that apply during periods of startup and shutdown, such alternative limitations are only permitted in a narrow set of circumstances and must be accomplished through the appropriate SIP pro cess (see section VII. A of this notice.) Those alter native limitations

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Page 149 of 339 must be developed in consultation with the EPA and must be approved b y the EPA into the SIP. The provisions of Delaware's SIP raised by the Petitioner purport to authorize the state to establish alternative limitations for excess emissions during periods of startup and shutdown (or to exempt those emissions altogether, as discussed above) on a case - by case basis in the permitting process, and the provisions do not require the state to consult with the EPA or have those alternative limits approved by the EPA into the SIP. The EPA believes that the inclusion of processes to establish alternative limits for some sources and in regard to some pollutants in a manner that does not conform with the requirements of th e Act as interpreted in the EPA's SSM Policy in 7 - 1100 - 1104 D el. Code Regs § 1.5, 7 - 1100 - 1105 Del. Code Regs § 1.7, 7 - 1100 - 1108 Del. Code Regs § 1.2, 7 - 1100 - 1109 Del. Code Regs § 1.4, 7 - 1100 - 1114 Del. Code Regs § 1.3, 7 - 1100 - 11 24 Del. Code Regs § 1.4, and 7 - 1100 - 1142 Del. Code Regs § 2.3.5 is thus a substantial inadequacy and renders these specific SIP provisions impermissible, in addition to the creation of unbounded discretion in a state official. c. The EPA ' s Proposal The EPA proposes to grant the Peti tion with respect to 7 - 1100 - 1104 Del. Code Regs § 1.5, 7 - 1100 - 1105 Del. Code Regs § 1.7, 7 - 1100 - 1108 Del. Code Regs § 1.2, 7 - 1100 - 1109 Del. Code Regs § 1.4, 7 - 1100 - 1114 Del. Code Regs § 1 .3, 7 - 1100 - 1124 Del. Code Regs § 1.4, and 7 - 1100 - 1142 Del. Code Regs § 2.3.5 . The EPA believes that these provisions allow for exemptions from otherwise applicable SIP emission limitations, and that such outright exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs in sections 110(a)(2)(A), 110(a)(C), and

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Page 150 of 339 302(k). In addition, the aforementioned provisions each allow for such exemptions through a state official's unilateral exercise of insufficientl y bounded discretionary authority in the permitting process, and such provisions are inconsistent with the fundamental requirements of the CAA with respect to SI Ps and SI P revisions. Moreover, the discretion in these provisions also allows state officials to establish alternative emission limitations during periods of startup and shutdown through a process that does not conform to the requirements of the Act or the EPA's SSM Policy with regard to establishing alternative emission limitations. For these reasons, the EPA is proposing to find that these provisions are subs tantiall y inadequate to meet CAA requirements and thus is proposing to issue a SIP call with respect to these provisions. 2. District of Columbia a. Petitioner ' s Anal ys is The Petitioner objected to five provisions in the District of Columbia (D.C.) SI P as being inconsistent with the CAA as interpreted in the EPA's SSM Policy . 103 The Petitioner first objected to a generally applicable provision in the D.C. SIP that allows for discretionary

exemptions during periods of maintenance or malfunction (D.C. Mun. R egs. tit. 20 § 107.3). The provision provides the May or with the authorit y to permit continued operation of a stationary source when air pollution controls are shut down due to maintenance or malfunction. The Petitioner argued that this provision could pro vide an exemption from the otherwise applicable SIP emission limitations, and such an

103 Petition at 29 - 30.

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Page 151 of 339 exemption is impermissible under the CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated a s violations. Moreover, the Petitioner objected to this discretionary exemption because the May or's grant of permission to continue to operate during the period of malfunction or maintenance could be interpreted to excuse excess emissions during such time period and could thus be read to preclude enforcement by the EPA or citizens in the event that the May or elects not to treat the event as a violation. Thus, in addition to creating an impermissible exemption for the excess emissions, the Petitioner argued, the provision is also inconsistent with the CAA as interpreted in the EPA's SSM Policy because it allows the May or to make a unilateral decision that the excess emissions were not a violation and thus purports to bar enforcement for the excess emissions b y the EPA and citizens. Secondly , the Petitioner objected to the alternative limitations on stationary sources for visible emissions during periods of "start - up, cleaning, soot blowing, adjustment of combustion controls, or malfunction," (D.C. Mun. Regs. tit. 20 § 606.1) and, for fuel - burning equipment placed in initial operation before January 1977, alternative limits for visible emissions during startup and shutdown (D.C. Mun. Regs. tit. 20 § 606.2). The Petitioner also objected to the exemption from emission limitations for eme rgency

standb y engines (D.C. Mun. Regs. tit. 20 § 805.1(c)(2)). The Petitioner argued that these provisions could provide exemptions or deviations from the otherwise applicable SIP emission limitations, and such exemptions are impermissible under the CAA b ecause the statute and the EPA's interpretation of the CAA in the SSM Policy

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Page 152 of 339 require that all such excess emissions be treated as violations. Moreover, the Petitioner argued that the alternative limits do not appear to meet the criteria for a source catego ry specific rule as permitted under the EPA's SSM Policy interpreting the Act. Finally , the Petitioner objected to the provision in the D.C. SIP that provides an affirmative defense for violations of visible emission limitations during "unavoidable malfun ction" (D.C. Mun. Regs. tit. 20 § 606.4). The Petitioner objected to this provision because the elements of the defense are not laid out clearl y in the SIP, because the term "affirmative defense" is not defined in the SIP, and finally , the Petitioner argue s, because affirmative defenses for any excess emissions are wholly inconsistent with the CAA and should be removed from the SI P. b. The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, load change, or emergencies are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of

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Page 153 of 339 such an exemption from the emission limitations in D.C. Mun. Regs. tit. 20 § 107.3 is thus a substantial inadequacy and renders this specific SIP provision impermissible. The EPA believes that D.C. Mun. Regs. tit. 20 § 107.3 is also impermissible due to an unbounded director's discretion provision that purports to make the Mayor the unilater al arbiter of whether the excess emissions in a given event constitute a violation. In the case of D.C. Mun. Regs. tit. 20 § 107.3 , the provision authorizes the May or to permit continued operation at stationary sources without functioning air pollution control equipment. T he May or ' s grant of permission to continue to operate during the period of malfunction or maintenance could be interpreted to excuse excess emissions from that time period, and it could thus be read to preclude enforcement b y the EPA or through a citizen suit in the event that the May or elects not to treat the event as a violation . In addition, the provision vests the May or with the unilateral power to grant an exemption from the otherwise applicable SIP emission limitation, without any add itional public process at the D.C. or federal level, and without any bounds or parameters to the exercise of this discretion. Most importantly , however, the provision purports to authorize the May or to create an exemption from the emission limitation, and such an exemption is impermissible in the first instance. Such a director's discretion provision undermines the emission limitations and the emissions reductions they are intended to achieve and renders them less enforceable b y the EPA or through a citizen suit . The EPA believes that the inclusion of an unbounded director's discretion provision in D.C. Mun. Regs. tit. 20 § 107.3 is thus a substantial inadequacy and renders this specific SIP provision impermissible for this reason, in addition to the creatio n of an impermissible exemption.

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Page 154 of 339 The EPA notes that while the CAA does not allow for exemptions for excess emissions , it does, a s discussed in section VII.A of this notice, allow states to develop alternative emission limitations or other forms of enforce able control measures or techniques that appl y during startup or shutdown . The EPA believes that emission limitations in SIPs should generall y be developed in the first instance to account for the ty pes of normal operation outlined in D.C. Mun. Regs. tit. 20 § 606.1, such as cleaning, soot blowing, and adjustment of combustion controls. The D.C. Mun. Regs. tit. 20 §§ 606.1 and 606.2 do not appear to compl y with the CAA's requirements as interpreted in the EPA's SSM Policy . The alternative limitations on stationary sources for visible emissions during periods of "start - up, cleaning, soot blowing, adjustment of combustion controls, or malfunction," (D.C. Mun. Regs. tit. 20 § 606.1) do not comply with the Act and the EPA's policy

interpreting the Act, because, for instance, they do not apply

onl y to "specific, narrowl y - defined source categories using specific control strategies." 104 The EPA believes that the inclusion of these alternative limitations, which do not comply with the requirements of the Act, in D.C. M un. Regs. tit. 20 §§ 606.1 and 606.2 is thus a substantial inadequacy

and renders these specific SIP provisions impermissible . With respect to the Petitioner's objection to the exemption for emergency standby engines (D.C. Mun. Regs. tit. 20 § 805.1(c)(2) ), the EPA disagrees that this provision applies to an exemption from emission limitations during startup, shutdown, or malfunction periods. Instead, this provision applies to a specific source category that is

104 1999 SSM Gu idance Attachment at 4 - 5.

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Page 155 of 339 not subject to control under the D.C. SIP. At this point in time, the SIP reflects that regulation of this source category is not necessary in the SIP in order to meet the applicable reasonabl y available control technology (RACT) requirements or other CAA requirements in this area. The EPA therefore disagrees with Petitioner that D.C. Mun. Regs. tit. 20 § 805.1(c)(2) renders the D.C. SI P substantially inadequate. Finally , the EPA agrees with the Petitioner that the affirmative defense contained in D.C. Mun. Regs. tit. 20 § 606.4 is not an acceptable affirmative defense provision under the CAA as interpreted the EPA's SSM Policy . Although the EPA believes that narrowl y drawn affirmative defenses are permitted under the CAA for malfunction events (see section VII.B of this notice), the EP A's interpretat ion of the CAA is that such affirmative defenses can only shield the source from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar any enforcement action for injunctive relief for violations of emission limitations is inconsistent with the requirements of CAA sections 113 and 304. Furthermore, the SI P provision is deficient because while it appears to create an affirmative defense, it does so with conditions that are not consistent with the criteria that the EPA recommends in the SSM Policy . The EPA acknowledges that the SSM Policy is only guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is propo sing to determine that D.C. Mun. Regs. tit. 20 § 606.4 does not include criteria that are sufficientl y robust to qualify as an acceptable affirmative defense provision. The EPA believes that the inclusion of the complete bar to liability , including injunct ive relief, and the insufficiently robust

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Page 156 of 339 qualifying criteria in D.C. Mun. Regs. tit. 20 § 606.4 are substantial inadequacies and render this specific SIP provision impermissible. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to D.C. Mun. Regs. tit. 20 § 107.3 . The EPA believes that this provision allows for exemptions from the otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to em ission limitations in SIPs in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) . In addition, D.C. Mun. Regs. tit. 20 § 107.3 allows for such an exemption through a state official's unilateral exercise of discretionary

authority that is unbounded and includes no additional public process at the D.C. or federal level, and such provisions are inconsistent with the fundamental requi rements of the CAA with respect to SI Ps and SI P revisions. For these reasons, the EPA is proposing to find that D.C. Mun. Regs. tit. 20 § 107.3 is substantially inadequate to meet CAA requirements and thus proposing to issue a SI P call with respect to this provision. The EPA also proposes to grant the Petition with respect to D.C. Mun. Regs. tit. 20 §§ 606.1 and 606.2. The EPA believes that section 606.1 impermissibly provides an alternative visible emission limitation to stationary sources during periods of malfunction and during planned maintenance events. Furthermore, while sections 606.1 and 606.2 appropriatel y provide alternative visible emission limitations only during periods of startup and shutdown, both sections apply to a broad category

of sources and are not narrowl y limited to a source category employing a specific control strategy , as required

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Page 157 of 339 by the CAA as interpreted in the EPA's SSM Policy . For these reasons, the EPA is proposing to find that D.C. Mun. Regs. tit. 20 §§ 606.1 and 606.2 are sub stantially inadequate to meet CAA requirements and is thus proposing to issue a SIP call with respect to these provisions. The EPA proposes to deny the Petition with respect to D.C. Mun. Regs. tit. 20 § 805.1(c)(2). The EPA disagrees that this provision a pplies to an exemption from emission limitations during startup, shutdown, or malfunction periods. Rather, this provision applies to a specific source category that is not subject to control under the D.C. SI P. At this point in time, the SIP reflects that regulation of this source category is not necessary in the SIP in order to meet the applicable reasonably available control technology (RACT) requirements or other CAA requirements in this area. Finally , the EPA proposes to grant the petition with respect to D.C. Mun. Regs. tit. 20 § 606.4 because it is not a permissible affirmative defense provision consistent with the requirements of the CAA and the EPA's recommendations in the EPA's SSM Policy . By

purporting to create a bar to enforcement that applies n ot just to monetary penalties but also to injunctive relief, this provision is inconsistent with the requirements of CAA sections 113 and 304. By not including sufficient criteria to assure that sources seeking to raise the affirmative defense have in fact been properl y designed, maintained, and operated, and to assure that sources have taken all appropriate steps to minimize excess emissions, the provision also fails to be sufficiently narrowl y drawn to justify shielding from monetary

penalties for violati ons. Thus, this provision is not appropriate as an affirmative defense provision because it is inconsistent with fundamental

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Page 158 of 339 requirements of the CAA. For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to this provision. 3. Virginia a. Petitioner's Anal ys is The Petitioner objected to a generally applicable provision in the Virginia SIP that allows for discretionary

exemptions during pe riods of malfunction (9 Va. Admin. Code § 5 - 20 - 180(G)). 105 First, the Petitioner objected because this provision provides an exemption from the otherwise applicable SIP emission limitations, and such an exemption is impermissible under the CAA because the st atute and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emiss ions be treated as violations. Second, the Petitioner objected to the discretionary exemption for excess emissions during malfunction because the provision gives the state the authority to determine whether a violation "shall be judged to have taken place " (9 Va. Admin. Code § 5 - 20 - 180(G)). The Petitioner argued that this provision could be read to preclude enforcement b y the EPA or citizens in the event that the state elects not to treat the event as a violation. Thus, in addition to creating an impermiss ible exemption for the excess

105 Petition at 70 - 71.

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Page 159 of 339 emissions, the Petitioner argued, the provision is also inconsistent with the CAA as interpreted in the EPA's SSM Policy because it allows the state to make a unilateral decision that the excess emissions were not a violation and thus purports to bar enforcement for the excess emissions by the EPA and citizens. Third, the Petitioner argued that while the regulation provides criteria, akin to an affirmative defense, b y which the state must make such a judgment that the event is not a violation, the criteria "fall far short of EPA policy" and the provision "fails to establish any procedure through which the criteria are to be evaluated." b. The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions from othe rwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the defin ition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions such as 9 Va. Admin. Code § 5 - 20 - 180(G) that create exemptions by

authorizing the state to determine that the excess emissions during startup, shutdown, load change, or emergencies are not violations of the appli cable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of such an exemption in 9 Va. Admin. Code § 5 - 20 - 180(G) is thus a substantial inadequ acy and

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Page 160 of 339 renders this specific SIP provision impermissible. The EPA believes that 9 Va. Admin. Code § 5 - 20 - 180(G) is also impermissible due to the inclusion of a director's discretion provision that purports to make the state official the unilateral arbite r of whether the excess emissions in a given malfunction event constitute a violation. In the case of 9 Va. Admin. Code § 5 - 20 - 180(G) , the provision authorizes the state official to judge that "no violation" has taken place. The provision therefore vests the state official with the unilateral power to grant an exemption from the otherwise applicable SIP emission limitation, without any additional public process at the state or federal level. By deciding that an exceedance of the emission limitation was not a "violation," exercise of this discretion could preclude enforcement by the EPA or the public who may not agree with that conclusion. Most importantly , however, the provision purports to authorize the state official to create an exemption from the otherwi se applicable SIP emission limitation, and such an exemption is impermissible in the first instance. Such a director's discretion provision undermines the emission limitations in the SIP and the emissions reductions that they are intended to achieve and re nders them less enforceable by the EPA or through a citizen suit . The EPA believes that the inclusion of a director's discretion provision in 9 Va. Admin. Code § 5 - 20 - 180(G) is thus a substantial inadequacy and renders this specific SIP provision impermiss ible for this reason, in addition to the creation of an impermissible exemption. Finally , the EPA agrees with Petitioner that although the exemption requires that certain conditions must be met by the source, the conditions set forth in the provision do n ot render it an acceptable affirmative defense provision. The Petitioner is correct that 9

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Page 161 of 339 Va. Admin. Code § 5 - 20 - 180(G) is not an acceptable affirmative defense provision under the CAA as interpreted in the EPA's SSM Policy . Although the EPA believes that narrowl y drawn affirmative de fenses are permitted under the CAA for malfunction events (see section VII.B of this notice), the EP A's interpretation of the CAA is that such affirmative defenses can only shield the source from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar any enforcement action for injunctive relief for violations of emission limitations is inconsistent with the requirements of CAA sections 113 and 304. Furthermore, Virgini a's SIP provision is deficient because even if it attempts to create an affirmative defense rather than an automatic exemption from the emission limitations, it does so with conditions that are not consistent with the criteria that the EPA recommends in th e SSM Policy . The EPA acknowledges that the SSM Policy is onl y guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is proposing to determine that 9 Va. Admin. Code § 5 - 20 - 180(G) does not include criteria that are sufficientl y robust to qualify as an acceptable affirmative defense provision under the CAA. The EPA believes that the inclusion of the complete bar to liability , including injunctive relief, and the in sufficiently

robust qualifying criteria in 9 Va. Admin. Code § 5 - 20 - 180(G) are substantial inadequacies and render this specific SIP provision impermissible. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to 9 Va. Admin. Code § 5 - 20 - 180(G) . The EPA believes that this provision allows for an exemption from the

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Page 162 of 339 otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations i n SIPs in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) . In addition, 9 Va. Admin. Code § 5 - 20 - 180(G) allows for such an exemption through a state official's unilateral exercise of discretionary

authority that includes no additional public process at the state or federal level, and such provisions are inconsistent with the fundamental requirements of the CAA with respect to SI Ps and SI P revisions. Moreover, even if the EPA were to consider 9 Va. Admin. Code § 5 - 20 - 180(G) as providing for an affirmative d efense rather than an automatic exemption, the provision is not a permissible affirmative defense provision consistent with the requirements of the CAA as interpreted in the EPA's recommendations in the EPA's SSM Policy. By purporting to create a bar to en forcement that applies not just to monetary penalties but also to injunctive relief, this provision is inconsistent with the requirements of CAA sections 113 and 304. By not including sufficient criteria to assure that sources seeking to raise the affirmat ive defense have in fact been properly designed, maintained, and operated, and to ensure that sources have taken all appropriate steps to minimize excess emissions, the provision also fails to be sufficiently narrowl y drawn to justify shielding from monetary

penalties for violations. Thus, this provision is not appropriate as an affirmative defense provision because it is inconsistent with fundamental requirements of the CAA. For these reasons, the EPA is proposing to find that this provision is substantia lly inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect

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Page 163 of 339 to this provision. 4. West Virginia a. Petitioner's Anal ys is The Petitioner made four ty pes of objections identifying inadequacies regarding startup, shutdown, and malfunction provisions in West Virginia's SI P. 106 First, the Petitioner objected to three specific provisions in the West Virginia SIP that allow for automatic exemptions from emission limitations, standards, and monitoring and recordkeeping requirements for excess em ission during startup, shutdown, or malfunction (W. Va. Code R. § 45 - 2 - 9.1, W. Va. Code R. §45 - 7 - 10.3, and W. Va. Code R. §45 - 40 - 100.8). The Petitioner objected because all three of these provisions provide exemptions from the otherwise applic able SIP emission limitations, and such exemptions are inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. The Petitioner also objected to all three of these provisions because, by providing an outright exemption from otherwise applicable requirements, the state has defined these excess emissions as not violations, the reby

precluding enforcement b y the EPA or citizen s for the excess emissions that would otherwise be violations. Second, the Petitioner objected to seven discretionary exemption provisions because these provisions provide exemptions from the otherwise applicable SIP emission

106 Petition at 72 - 74.

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Page 164 of 339 limitations, and such exemptions are impermissible under the CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. The Petitioner noted that the provisions allow a state official to "grant an exception to the otherwise applicable visible emissions standards" due to "unavoidable shortage of fuel" or "an y emergency situation or condition creating a threat to public safet y or welfare" (W. Va. Co de R. § 45 - 2 - 10.1), to permit excess emissions "due to unavoidable malfunctions of equipment" (W. Va. Code R. § 45 - 3 - 7.1, W. Va. Code R. § 45 - 5 - 13.1, W. Va. Code R. § 45 - 6 - 8.2, W. Va. Code R. § 45 - 7 - 9.1, and W. Va. Code R. § 45 - 10 - 9.1), and to permit exceedances where the limit cannot be "satisfied" because of "routine maintenance" or "unavoidable malfunction" (W. Va. Code R. §45 - 21 - 9.3). The Petitioner argued that these provisions could be read to preclude enforcement b y the EPA or citizens in the event that the state official elects not to treat the event as a violation. Thus, in addition to creating an impermissible exemption for the excess emissions, the Petitioner argued, the SIP's provisions are also inconsistent with th e CAA as interpreted in the EPA's SSM Policy because they

allow the state official to make a unilateral decision that the excess emissions were not a violation and thus purport to bar enforcement for the excess emissions by the EPA and citizens. Third, th e Petitioner objected to the alternative limit imposed on hot mix asphalt plants during periods of startup and shutdown in W. Va. Code R. § 45 - 3 - 3.2 because it was "not sufficientl y justified" under the requirements of source category - specific rules. The P etitioner argued that this provision could provide an unacceptable deviation during periods of startup and shutdown from the otherwise applicable SIP emission limitations,

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Page 165 of 339 and such deviations are impermissible under the CAA because the statute and the EPA' s interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. Moreover, the Petitioner argued that the alternative limits do not appear to meet the criteria for a source category - specific rule as permitted under the Act as interpreted in the EPA's SSM Policy . Fourth, the Petitioner objected to a discretionary provision allowing the state to approve an alternative visible emission standard during startups and shutdowns for manufacturing processes and associat ed operations (W. Va. Code R. § 45 - 7 - 10.4). The Petitioner argued that such a provision "allows a decision of the state to preclude enforcement b y EPA and citizens." b. The EPA's Evaluation The EPA agrees that the CAA does not allow for automatic exempti ons from otherwise applicable SIP emission limitations. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emi ssion limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations of such limitations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunction are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. Two of the automatic exemption pr ovisions identified by

the Petitioner explicitly

state that the standards shall not appl y or that certain

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Page 166 of 339 operations "shall be exempt" during periods of startup, shutdown, malfunction, or maintenance (W. Va. Code R. § 45 - 2 - 9.1, W. Va. Code R. § 45 - 7 - 10.3). The third automatic exemption states that requirements for monitoring, recordkeeping, and reporting will not apply

under certain circumstances (W. Va. Code R. § 45 - 40 - 100.8). Such an exemption would affect the enforceability of the emission limitations an d thus adversel y affects the approvability of the emission limitations themselves. Moreover, failure to account accurately for excess emissions at sources during SSM events has a broader impact on NAAQS implementation and SIP planning, because such account ing directly informs the development of emissions inventories and emissions modeling. The exemptions therefore provide that the resulting excess emissions will not be violations, which is contrary

to the requirements of the CAA. The EPA believes that the i nclusion of such automatic exemptions from emission limitations in W. Va. Code R. § 45 - 2 - 9.1, W. Va. Code R. § 45 - 7 - 10.3, and W. Va. Code R. § 45 - 40 - 100.8, is thus a substantial inadequacy

and renders these specific SIP provisions impermissible. With resp ect to the Petitioner's concern that these exemptions preclude enforcement b y the EPA or citizens, the EPA agrees that this is one of the critical reasons why such provisions are impermissible under the CAA. By having SIP provisions that define what would otherwise be violations of the applicable emission limitations as non violations, the state has effectivel y negated the ability of the EPA or the public to enforce against those violations. The EPA also agrees that the CAA does not allow for discretionary exemptions from otherwise applicable SIP emission limitations. As noted above, in accordance with

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Page 167 of 339 the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discreti on. SIP provis ions such as W. Va. Code R. § 45 - 2 - 10.1, W. Va. Code R. §45 - 3 - 7.1, W. Va. Code R. §45 - 5 - 13.1, W. Va. Code R. §45 - 6 - 8.2, W. Va. Code R. §45 - 7 - 9.1, W. Va. Code R. §45 - 10 - 9.1, and W. Va. Code R. §45 - 21 - 9.3 that create exemptions by permitting the state to det ermine that the excess emissions during startup, shutdown, load change, or emergencies are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of these discretionary

exemptions in the SIP is thus a substantial inadequacy and renders these specific SIP provisions impermissible. The EPA believes that W. Va. Code R. § 45 - 2 - 10.1, W. Va. Code R. § 45 - 3 - 7.1, W. Va. Cod e R. § 45 - 5 - 13.1, W. Va. Code R. § 45 - 6 - 8.2, W. Va. Code R. § 45 - 7 - 9.1, W. Va. Code R. § 45 - 10 - 9.1, and W. Va. Code R. § 45 - 21 - 9.3 are also impermissible because these provisions purport to make a state official the unilateral arbiter of whether the excess emissions in a given malfunction, maintenance, or emergency event constitute a violation. In the case of W. Va. Code R. § 45 - 2 - 10.1, the provision allows the state official to "grant an exception to the otherwise applicable visible emissions standards" du e to "unavoidable shortage of fuel" or "an y emergency situation or condition creating a threat to public safet y or we lfare." W. Va. Code R. § 45 - 3 - 7.1, W. Va. Code R. § 45 - 5 -

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Page 168 of 339 13.1, W. Va. Code R. § 45 - 6 - 8.2, W. Va. Code R. § 45 - 7 - 9.1, and W. Va. Cod e R. § 4 5 - 10 - 9.1 permit excess emissions "due to unavoidable malfunctions of equipment." The provision at W. Va. Code R. §45 - 21 - 9.3 permits exceedances where the limit cannot be "satisfied" because of "routine maintenance" or "unavoidable malfunction." T hese prov isions authorize the state official to judge that violations have not occurred even though the emissions exceeded the applicable SIP emission limitations. The SIP' s provisions therefore vest the state official with the unilateral power to grant exemptions from otherwise applicable SIP emission limitations, without any additional public process at the state or federal level. By deciding that an exceedance of the emission limitation was not a "violation," exercise of this discretion could preclude enforcement by

the EPA or through a citizen suit . Most importantly , however, the provision purports to authorize the state official to create an exemption from the otherwise applicable SIP emission limitation, and such an exemption is impermissible in the first instance. Such a director's discretion provision undermines the emission limitations and the emissions reductions they are intended to achieve and renders them less enforceable b y the EPA or through a citizen suit . The EPA believes that the inclusion of directo r's discr etion provisions in W. Va. Code R. § 45 - 2 - 10.1, W. Va. Code R. § 45 - 3 - 7.1, W. Va. Code R. § 45 - 5 - 13.1, W. Va. Code R. § 45 - 6 - 8.2, W. Va. Code R. § 45 - 7 - 9.1, W. Va. Code R. § 45 - 10 - 9.1, and W. Va. Code R. § 45 - 21 - 9.3 is thus a substantial inadequac y and rende rs these specific SI P provisions impermissible for this reason, in addition to the creation of an impermissible exemption. The EPA notes that while the CAA does not allow for exemptions for excess

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Page 169 of 339 emissions , it does, a s disc ussed in section VII .A of this notic e, permit states to develop alternative emission limitations or other forms of enforceable control measures or techniques that appl y during startup or shutdown. W. Va. Code R. § 45 - 3 - 3.2 and W. Va. Code R. § 45 - 2 - 10.2 107 do not appear to comp ly with the Act's requirements as interpreted in the EPA's SSM Policy . The alternative smoke and/or particulate matter limitation on hot mix asphalt plants that applies during periods of startup and shutdown (W. Va. Code R. § 45 - 3 - 3.2) does not comply with the CAA and the EPA's policy interpreting the CAA because, for instance, it does not apply onl y to "specific, narrowl y defined source categories using specific control strategies." 108 W. Va. Code R. § 45 - 2 - 10.2, which allows fuel - burning units employing flu e gas desulphurization systems to by pass such sy stems during "necessary planned or unplanned maintenance" and provides an alternative limit of 20 - percent opacit y during such periods, also does not comply with the CAA as interpreted in the EPA's SSM Policy . The EPA believes that such special emission limitations or emissions controls may be appropriate during startup or shutdown, but other modes of normal source operation, including maintenance, should be accounted for in the development of the emission limi tations themselves. The EPA believes that the inclusion of alternative limits that do not meet the requirements of the CAA as interpreted in the EPA's SSM Policy in W. Va. Code R. § 45 - 3 - 3.2 and W. Va. Code R. § 45 - 2 - 10.2 is thus a substantial inadequacy and renders these specific SIP 107 The EPA notes that the Petitioner specificall y focused on concern with W. Va. Code R. § 45 - 2 - 10.1, but the same issue affects W. Va. Code R. § 45 - 2 - 10.2. 108 1999 SSM Guidan ce Attachme nt at 4 - 5.

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Page 170 of 339 provisions impermissible for this reason. The EPA also agrees that the discretionary provision allowing a state official to approve an alternative visible emission standard during startups and shutdowns for manufacturing pro cesses and associated operations (W. Va. Code R. § 45 - 7 - 10.4) does not comply

with the CAA or the EPA's SSM Policy interpreting the CAA. These provisions purport to authorize the state official to establish alternative limits for excess emissions during pe riods of startup and shutdown (or, potentially , to exempt those emissions altogether) on a case - by - case basis, and these provisions do not require the state official to consult with the EPA or to have those alternative limits approved b y the EPA into the S IP , contrary to the EPA's SSM Policy interpreting the requirements of the CAA. The EPA believes that the inclusion of these alternative limitations, which do not comply with the EPA's interpretations of the requirements of the CAA, in W. Va. Code R. § 45 - 3 - 3.2 and W. Va. Code R. § 45 - 7 - 10.4, is thus a substantial inadequacy and renders these specific SIP provision s impermissible . c. The EPA's Proposal The EPA proposes to grant the Petition with respe ct to W. Va. Code R. § 45 - 2 - 9.1, W. Va. Code R. § 45 - 7 - 1 0.3, and W. Va. Code R. § 45 - 40 - 100 .8. The EPA believes that each of these provisions allows for automatic exemptions from the otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required b y sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the state has defined violations in way that would

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Page 171 of 339 interfere with effective enforceme nt by the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find that these provisions are substantially inadequate to meet CAA requirements and thus proposing to i ssue a SIP call with respect to these provisions. The EPA proposes to grant the Petition with respect to W. Va. Code R. § 45 - 2 - 10.1, W. Va. Code R. § 45 - 3 - 7.1, W. Va. Code R. § 45 - 5 - 13.1, W. Va. Code R. § 45 - 6 - 8.2, W. Va. Code R. § 45 - 7 - 9.1, W. Va. Code R . § 45 - 10 - 9.1, and W. Va. Code R. § 45 - 21 - 9.3 . The EPA believes that these provisions allow for discretionary exemptions from otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, these provisions allow for exemptions through a state official's unilateral exercise of discretionary

authority that includes no a dditional public process at the state or federal level, and such provisions are inconsistent with the fundamental requirements of the CAA with respect to SI Ps and SI P revisions. The EPA also proposes to grant the Petition with resp ect to W. Va. Code R. § 45 - 3 - 3.2, W. Va. Code R. § 45 - 2 - 10.2, and W. Va. Code R. § 45 - 7 - 10.4. The W. Va. Code R. § 45 - 3 - 3.2 applies to a broad category of sources and is not narrowl y l imited to a source category

that uses a specific control strategy , as required by the EPA's SSM Policy interpreting the CAA. Similarly , W. Va. Code R. § 45 - 2 - 10.2 is inconsistent with the EPA's SSM Policy

interpreting the CAA because it is an alternative limit that applies during periods of maintenance, and such alternative limits are only permissibl e during

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Page 172 of 339 periods of startup and shutdown. The W. Va. Code R. § 45 - 7 - 10.4 allows state officials the discretion to establish alternative visible emissions standards during startup and shutdown upon application. This provision is inconsistent with the EPA's SSM Policy and requirements under the Act because, for example, the emission limitations are required to be developed in consultation with the EPA and must be included in the SI P itself. For these reasons, the EPA is proposing to find that W. Va. Code R. § 45 - 3 - 3.2, W. Va. Code R. § 45 - 2 - 10.2, and W. Va. Code R. § 45 - 7 - 10.4 are substantially inadequate to meet CAA requirements and is thus proposing to issue a SI P call with respect to these provisions. E. Affected States and Local Jurisdictions in EPA Regio n IV 1. Alabama a. Petitioner ' s Anal ys is The Petitioner objected to two generall y applicable provisions in the Alabama SIP that allow for discretionary exemptions during startup, shutdown, or load change (Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1)), and during emergencies (Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2)). 109 , 110 First, the Petitioner objected because both of these provisions provide exemptions from the otherwise applicable emission limitations, and 109 Petition at 17 - 18. 110 The EPA notes that the Petitioner also identified several additional pollutant - specific and source category - specific provisions in the Alabama SIP that it alleged are inconsistent with the CAA and the EPA's SSM Policy . However, the Petitioner did not requ est that the EPA address those SI P provisions in its remedy request, and thus the EPA is not addressing those provisions in this action. The EPA may elect to evaluate those provisions in a later action.

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Page 173 of 339 such exemptions are inconsistent with the requirem ents of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA , as interpreted in the EPA's SSM Policy , require that all such excess emissions be treated as violations. Second, the Petitioner objected to the discretionary exemp tions for excess emissions during startup, shutdown, or load change that are also present in Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1) because the emissions during such events can be reasonabl y avoided. The Petitioner noted that such events are part of nor mal source operation and that an y special treatment of excess emissions during such events must be justified with a showing that the excess emissions could not be avoided through careful planning and design, and that by passing controls in such events is ne cessary to prevent loss of life, personal injury , or severe propert y damage. Third, the Petitioner objected to the discretionary emergency

exemption provision that also is present in Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2), because the provision gives the state "sole authority to determine whether or not a violation has occurred." The Petitioner argued that this provision could be read to preclude enforcement by the EPA or citizens in the event that the state elects not to treat the event as a violation. Thus, in addition to creating an impermissible exemption for the excess emissions, the Petitioner argued that the provision is also inconsistent with the CAA and the EPA's SSM Policy because it allows the state to make a unilateral decision that the exces s emissions were not a violation and thus purports to bar enforcement for the excess emissions by the EPA and citizens. b. The EPA ' s Evaluation

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Page 174 of 339 The EPA agrees that the CAA does not allow for exemptions from otherwise applicable emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitations must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions th at create exemptions such that the excess emissions during startup, shutdown, load change, or emergencies are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limit ations in SIPs. The EPA believes that the inclusion of such exemptions from the emission limitations in Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1) and Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2) is thus a substantial inadequacy

and renders these specific SIP provisions impermissible. In addition, the EPA agrees that startup, shutdown, and load change are all part of normal source operation and that such events are usually planned for and predictable, and thus emissions during such events are more controllable than those that might occur during an "emergency " or other form of malfunction. Unlike excess emissions in malfunctions, which are by definition presumed to be bey ond the reasonable control of the source through proper design, operation, and maintenance, excess emissions that occur during startup, shutdown, or load change can be anticipated and steps can be taken to minimize them. The Petitioner, citing the 1983 SSM Guidance, argued that the EPA's

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Page 175 of 339 SSM Policy

indicates that there should be "a higher showing to escape enforcement" during such planned events. While such a higher showing may be relevant in the context of whether a state elects to exercise its enforcement discretion, it should not be germane to whether or not the excess emissions constitute a vi olation of the applicable emission limitations. The EPA notes that the CAA does not allow exemptions for excess emissions during startup, shutdown, or load change, just as it does not allow such exemptions during malfunctions. As discusse d in section VII.A of this notic e, states may elect to develop alternative emission limitations or other forms of enforceable control measures or techniques that appl y during startup and shutdown, but exemptions for excess emissions during such periods are inconsistent with the fundamental requirements of the CAA. Finally , the EPA believes that both Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1) and Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2) are also impermissible as unbounded director's discretion provisions that make a state of ficial the unilateral arbiter of whether the excess emissions in a given event constitute a violation. In the case of Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1), the provision authorizes a state official unilaterally to

" [], in the Air Permit, exempt on a case b y case basis any exceedances of emission limits which cannot reasonabl y be avoided, such as during periods of start - up, shut - down or load change." This provision vests the state official with the unilateral power to grant in a state air p ermit, which may not provide any

additional public process at the state or federal level, an exemption from the otherwise applicable emission limitations without any bounds or parameters to the exercise of this discretion. By deciding that an

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Page 176 of 339 exceedance of the emission limitation will not be a "violation ," exercise of this discretion could preclude enforcement by the EPA or the public who may not agree that the emissions in question could not "reasonabl y be avoided." Most importantly, however, the provision authorizes the state official to create an exemption from the emission limitations, and such an exemption is impermissible in the first instance. Such a director's discretion provision undermines the SI P emission limitations and the emissions reductions they

are intended to achieve and renders them less enforceable by EPA or through a citizen suit . As discuss ed in section VII.A of this notice, such provisions are substantially

inadequate to meet CAA requirements. Similarly , the EPA believes that Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2) authorizes a state official unilaterally to decide that a given event was an "emergency " and thus to create an exemption from the otherwise applicable emission limitations. In this case, the provision does contain some gene ral parameters for the source to establish that there was an emergency ( e.g. , the source has to "identify " the cause of the emergency) but nevertheless empowers the state official to make a unilateral determination as to whether the event was an emergency . The provision thus vests the official with the power to grant an exemption from the otherwise applicable SIP emission limitations without any

additional public process at the state or federal level, and with insufficient bounds or parameters applicable to the exercise of this discretion. Again, most significantly , this discretion authorizes the creation of an exemption on a case - by case basis that is not permissible in the first instance. Thus, this provision also may undermine the SIP emission limitations , and the emissions reductions they are intended to

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Page 177 of 339 achieve, and renders them less enforceable b y the EPA or through a citizen suit . The EPA believes that the inclusion of an insufficientl y bounded director's discretion provision in Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1) and Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2) is thus a substantial inadequacy and renders these specific SIP provisions impermissible for this reason, in addition to the creation of impermissible exemptions. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1) and Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2). The EPA believes that both of these provisions allow for exemptions from the otherwise applicable emission limitatio ns, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) . In addition, Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1) and Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2) both allow for such exemptions through a state official's unilateral exercise of discretionary authority that is insufficiently

bounded and includes no additional public process at the state or federal level, an d such provisions are inconsistent with the fundamental requirements of the CAA with respect to SI Ps and SI P revisions. Moreover, the discretion created by these provisions allows case - by - case exemptions from emission limitations, when such exemptions are not permissible in the first instance. For these reasons, the EPA is proposing to find that Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(1) and Ala Admin Code Rule 335 - 3 - 14 - .03(1)(h)(2) are substantiall y inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to these provisions.

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Page 178 of 339 2. Florida a. Petitioner ' s Anal ys is The Petitioner objected to three specific provisions in the Florida SIP that allow for generall y applicable automatic exemptions for excess emissions during startup, shutdown, or malfunction (Fla. Admin. Code Ann Rule 62 - 201.700(1)), for fossil fuel steam generators during startup and shutdown (Fla. Admin. Code Ann Rule 62 - 201.700(2)), and for such sources during boiler cleaning and load change (Fla. Admin. Code Ann Ru le 62 - 201.700(3)). 111 , 112 The Petitioner objected because all three of these provisions provide exemptions from the otherwise applicable SIP emission limitations, and such exemptions are inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all excess emissions be treated as violations. The Petitioner objected to all three of these provisions because, b y stating that the exc ess emissions during the relevant events and time periods "are permitted," the state has defined these excess emissions as not violations, thereb y precluding enforcement by the EPA or citizens for the excess emissions that would otherwise be violations. Th e Petitioner also argued that the provision creating exemptions for excess emissions during 111 Petition at 30 - 31. 112 The EPA notes that the Petit ioner also identified several additional pollutant - specific and source category - specific provisions in the Florida SIP that it alleged are inconsistent with the CAA and the EPA's SSM Policy . However, the Petitioner did not request that the EPA address thos e SIP provisions in its remedy request, and thus the EPA is not addressing those provisions in this action. The EPA may elect to evaluate those provisions in a later action.

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Page 179 of 339 boiler cleaning and load change in Fla. Admin. Code Ann Rule 62 - 201.700(3) is impermissible specifically because it creates an exemption for excess emissions during normal source operation that "are not eligible for any relief under EPA guidance." After objecting to the three provisions that create the exemptions, the Petitioner noted that the related provision in Fla. Admin. Code Ann Rule 62 - 201.700(4) reduces the potential scope of the exemptions in the other three provisions if the excess emissions at issue are caused entirel y or in part b y things such as poor maintenance but that it does not eliminate the impermissible exemptions. Moreover, the Petitioner asserte d that none of the four provisions provides an y "procedure b y which the factual premises of any of these subsections are to be proven." b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable emission l imitations. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable SIP emission limitations must be considered violations of such limitations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the e xcess emissions during startup, shutdown, malfunction, boiler cleaning, or load change are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The three provisions identified by the Pet itioner explicitly

state that the excess emissions "shall be permitted" under certain

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Page 180 of 339 circumstances and thus provide that the resulting excess emissions will not be violations contrary to the CAA, as required b y sections 110(a)(2)(A), 110(a)(2)(C), and 302 (k) . The EPA believes that the inclusion of such exemptions from emission limitations in Fla. Admin. Code Ann Rule 62 - 201.700(1), Fla. Admin. Code Ann Rule 62 - 201.700(2) and Fla. Admin. Code Ann Rule 62 - 201.700(3), is thus a substantial inadequacy and rend ers these specific SIP provisions impermissible. The EPA notes that these exemptions are impermissible even though the state has imposed some factual and temporal limitations on their potential scope. For example, in Fla. Admin. Code Ann Rule 62 - 201.700(1 ), the state has specified that the excess emissions from startup, shutdown, and malfunction events "shall be permitted" ( i.e. , allowed and thus not treated as violations) provided: "(1) best operational practices to minimize emissions are adhered to and (2) the duration of excess emissions shall be minimized but in no case exceed two hours in an y 24 hour period unless specificall y authorized by

the Department for longer duration." Similarly , in Fla. Admin. Code Ann Rule 62 - 201.700(2) with respect to start up and shutdown from certain sources, the state has conditioned the exemption "provided that best operational practices to minimize emissions are adhered to and the duration of excess emissions shall be minimized." In Fla. Admin. Code Ann Rule 62 - 201.700(3 ), the state has imposed much more specific limits on the duration of the events and some additional limitations on the excess emissions in the form of specified opacity limits that apply

during such events. Although these extra limitations on the scope of the exemptions are helpful features, they nevertheless constitute a variance at a state official's discretion from the otherwise

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Page 181 of 339 applicable emissions limitations, and the core problem remains that each of the three provisions provides impermissible exempt ions from the emission limitations by defining the excess emissions as "permitted" and thus not violations. The CAA does, as discussed i n section VII.A of thi s notice, allow states to develop alternative emission limitations or other forms of enforceable c ontrol measures or techniques that apply during startup or shutdown. However, the Florida SIP provisions do not appear to compl y with the Act's requirements as interpreted in the EPA's SSM Policy , because, for instance, they do not apply onl y to "specific, narrowl y - defined source categories using specific control strategies." 113 With respect to the Petitioner's concern that these exemptions preclude enforcement b y the EPA or citizens, the EPA agrees that this is one of the critical reasons why such provision s are impermissible under the CAA. By having SIP provisions that define what would otherwise be violations of the applicable emission limitations as non violations, the state has effectivel y negated the ability of the EPA or the public to enforce against those violations. In addition, the EPA agrees that the limiting provision of Fla. Admin. Code Ann Rule 62 - 201.700(4) that curtails the exemptions in the prior provisions if the excess emissions are caused "entirely or in part" b y factors within the source' s control such as "poor maintenance" does not negate the underlying problem of providing exemptions for the excess emissions in the first instance. The EPA acknowledges that this provision

113 1999 SSM Guidance Attachment at 4 - 5.

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Page 182 of 339 would serve to prevent sources that fail to maintain or operate cor rectl y or otherwise to take action reasonabl y to prevent excess emissions during SSM events from getting the benefits of the exemption. However, the EPA recommends that these are the ty pes of considerations that should be relevant either in the state's exe rcise of enforcement discretion for violations, in the state's adoption of a SIP provision concerning that exercise of enforcement discretion by the state, or by

an appropriatel y drawn affirmative defense SIP provision for excess emissions in the case of m alfunctions. Finally , the Petitioner expressed concern that the four SI P provisions at issue "do not specify

the procedure by

which the factual premises are to be proven." Were these provisions authorizing a state official to make discretionary decisions as to whether or not a given event qualified for the (impermissible) exemption, there could be an additional concern that these provisions included a director's discretion problem as well. However, the EPA believes that these regulations are directly enfor ceable b y the state, the EPA, or members of the public in the appropriate forums, and thus the "procedure" for proving the violation would be the normal process in such forums. The fact that the state has established factual requirements that would need to be evaluated in order to prove a violation of the applicable emission limitations is not itself inconsistent with CAA requirements. The EPA believes that providing requisite factual evidence to establish a violation in an enforcement proceeding is entirel y appropriate. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to Fla. Admin. Code Ann Rule 62 - 201.700(1), Fla. Admin. Code Ann Rule 62 - 201.700(2), Fla. Admin. Code Ann

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Page 183 of 339 Rule 62 - 201.700(3), and Fla. Admin. Code Ann Rule 62 - 201.70 0(4). The EPA believes that each of these provisions allows for exemptions from the otherwise applicable emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the state has defined violations in way that would interfere with effective enforcement by the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find that these provisions are substantiall y inadequate to meet CAA requirements and thus proposing to issue a SI P call with respect to Fla. Admin. Cod e Ann Rule 62 - 201.700(1), Fla. Admin. Code Ann Rule 62 - 201.700(2), Fla. Admin. Code Ann Rule 62 - 201.700(3), and Fla. Admin. Code Ann Rule 62 - 201.700(4). 3. Georgia a. Petitioner ' s Anal ys is The Petitioner objected to a provision in the Georgia SIP that p rovides for exemptions for excess emissions during startup, shutdown, or malfunctions under certain circumstances (Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7)). 114 The Petitioner acknowledged that this provision of the Georgia SIP includes some conditions for when sources may

be entitled to seek the exemption under state law, such as when the source has used "best operational practices" to minimize emissions during the SSM event.

114 Petition at 32.

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Page 184 of 339 First, the Petitioner objected because the provision creates an exemption from th e applicable emission limitations by providing that the excess emissions "shall be allowed" subject to certain conditions, whereas the CAA and the EPA's interpretation of the CAA in the SSM Policy

prohibit any

such exemptions. The Petitioner noted that all excess emissions are required to be treated as violations of the applicable emission limitations, even if they

would qualify

for some other special consideration through other means such as enforcement discretion. Second, the Petitioner argued that altho ugh the provision provides some "substantive criteria," the provision does not meet the criteria the EPA recommends for an affirmative defense provision consistent with the requirements of the CAA in the EPA's SSM Policy . Third, the Petitioner asserted that the provision is not a permissible "enforcement discretion" provision applicable only to state personnel, because it "is susceptible to interpretation as an enforcement exemption, precluding EPA and citizen enforcement as well as state enforcement." b. The EPA ' s Evaluation At the outset, the EPA notes that the Petitioner failed to include an y discussion of the extensive prior litigation and administrative proceedings concerning this specific provision of the Georgia SI P. Nearl y 10 years ago, citizen sui t plaintiffs including the Petitioner sought to bring an enforcement action against a source for self - reported exceedances of emission limitations in the source's operating permit, and the source asserted that those exceedances were not "violations" through application of a permit provision that mirrored the underl yi ng SIP provision in Ga. Comp. R. & Regs. 391 - 3 - 1 -

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Page 185 of 339 .02(2)(a)(7). 115 In that case, the plaintiffs argued that the provision at issue was an "enforcement discretion" provision applicable to state pers onnel onl y and thus that it was not relevant in the event of enforcement actions by other parties. The District Court agreed and held that the provision was merel y an enforcement discretion provision applicable to the state and that it provided no affirmat ive defense in the enforcement action, and thus the court ruled in favor of the plaintiffs on this issue. 116 On appeal, the Court of Appeals examined the same operating permit language and underl yi ng SIP provision and came to a different conclusion. 117 The Co urt of Appeals concluded that the provision does provide an affirmative defense and is not an enforcement discretion provision. Moreover, the Court noted that even if the provision is not consistent with the EPA's guidance on permissible affirmative defens e provisions in SIPs ( e.g. , because it creates exemptions for exceedances and purports to allow a complete bar to an y liability , not just relief from monetary penalties), the EPA had not taken action through rulemaking to rectify that discrepancy . Because the EPA had not called upon the state to revise the SIP to bring it into compliance with the EPA's current interpretation of the CAA embodied in the 1999 SSM Guidance, the Court held that the exceedances of the applicable emission limitations were not viol ations and thus ruled against the plaintiffs. 115 See, Sierra Club, et al. v Georgia Power Co. , 365 F. Supp 1297 (N.D. Ga. 2004). 116 Id. at 1304. The court also made a series of findings to illustrate that the permit provision was not consistent with the EPA's interpretation of the CAA requirements concerning excess emission s during SSM events embodied in the 1999 SSM Guidance. 117 See , Sierra Club, et al. v. Georgia Power Co. , 443 F.3d 1346 (11th Cir. 2006).

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Page 186 of 339 Contemporaneously

with this litigation, the Petitioner had also filed a May 23, 2005 petition for rulemaking, requesting that the EPA require the state to revise its SIP "to correct a significant ambiguity " co ncerning the excess emissions from SSM events. 118 On July 18, 2007, the EPA denied that petition. 119 As a basis for this denial, the EPA reasoned that the opinion of the Court of Appeals had rendered the petition moot as to the issues raised therein. Specifica lly , the EPA stated that the Court's decision that the existing provision did not create an "automatic exemption" and did constitute an "affirmative defense" resolved an y "ambiguit y" about the meaning and application of Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)( a)(7). At this juncture, the EPA believes that the extensive proceedings concerning Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) in which plaintiffs, defendants, courts, and both state and federal agencies examined the same provision and came to different co nclusions concerning its meaning illustrates the need to examine this SI P provision again. In particular, the EPA concludes that the provision warrants further evaluation on the merits, because the Petition requests that the EPA consider more specific alle gations about deficiencies in the provision than did the 2005 petition. As the 11th Circuit Court of Appeals suggested, the EPA agrees that a formal notice - and - comment rulemaking though CAA section 110(k)(5) is a good mechanism through which to evaluate wh ether or not

118 The petition was filed by Richard M. Watson of the Georgia Center for Law in the Public Interest on behalf of the Georgia Chapter of the Sierra Club. 119 See Letter from Stephen E. Johnson, Administrator, to Georgia Chapter of the Sierra Club, dated July

1 8, 2007. A copy

of this letter is in the docket for this action.

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Page 187 of 339 Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) meets the substantive requirements of the CAA. Accordingl y, the EPA is reevaluating the provision on the merits. 120 The first concern with this provision is that it does create exemptions from the appli cable emission limitations. The provision explicitly states that the "excess emissions resulting from startup, shutdown, malfunction of any source which occur though ordinary diligence is employ ed shall be allowed," i.e. , are exempt and not subject to enfo rcement for either monetary

penalties or injunctive relief. The exemption for these excess emissions is conditioned upon several criteria relevant to minimizing emissions during the startup, shutdown, or malfunction event, which criteria are helpful and ar e structured as a form of affirmative defense. Even if Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) could otherwise qualify

as an affirmative defense provision, however, the EPA's interpretation of the CAA is that such affirmative defenses can onl y shield the source from monetary

penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar an y enforcement action for violations of emission limitations is inconsistent with the requirements of CAA sections 113 and 304. The EPA's second concern with Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) is that while the provision appears to create an affirmative defense, it does so with conditions that are not consistent with the full range of criteria that the EPA recommends in the SSM Policy . The EPA acknowledges that the SS M Policy is onl y guidance 120 The EPA notes that it is not bound to follow a prior incorrect interpretation of its own policy , nor is it precluded from changing its policy interpretations. See, e.g. , Luminant Generatio n Co. LLC et al. v. EPA , No. 10 - 60934, 2012 WL 4841615 (5th Cir. Oct. 12, 2012), and U.S. Supreme Court precedent cited therein for these propositions.

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Page 188 of 339 concerning what ty

pes of SIP provisions could be consistent with the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is proposing to determine that Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) does not include criteria that are sufficientl y robust to qualify

as an acceptable affirmative defense provision. In particular, the provision does not limit the ty pe of event that qualifies as a malfunction to those that are entirely bey ond the control of the source, that were not reasonably foreseeable and avoidable, and that were not part of a recurring pattern indicative of inadequate design, operation, or maintenance. While the EPA continues to believe that affirmative defense provisions applying to malfunctions can be consistent with the CAA as long as the criteria set forth in the SSM Policy are carefull y adhered to, as explained in more detail in sections IV .B and VII.B of this notice, the EPA believes that the criteria in Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) sh ould be augmented to assure that the affirmative defense is available only

in appropriately

narrow circumstances. The EPA's third concern with Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) is that even if the provision were otherwise construed as an affirmati ve defense, it extends not just to malfunctions but also to startup and shutdown events. As explai ned in section s IV .B and VII.C of this notice, the EPA int erprets the CAA to allow affirmative defense provisions applicable to malfunctions but not to other normal modes of source operation, including startup and shutdown. Thus, the provision is not drawn to assure that the affirmative defense is available only in appropriately

narrow circumstances, as required by the EPA's interpretation of CAA requirements. c. The EPA ' s Proposal

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Page 189 of 339 The EPA proposes to grant the Petition with respect to Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7). The EPA believes that this provision allows for exemptions from the otherwise applicable emission limitations, and that such outright exemptions for excess emissions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. Such a provision is inconsistent with the requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In a ddition, Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) is not a permissible affirmative defense provision consistent with the requirements of the CAA and the EPA's recommendations for such provisions in the EPA's SSM Policy . By creating a bar to enforcement th at applies not just to monetary penalties but also to injunctive relief, this provision is inconsistent with the requirements of CAA sections 113 and 304. By not including sufficient criteria to assure that sources seeking to raise the affirmative defense have in fact been properly designed, maintained, and operated, and to assure that sources have taken all appropriate steps to minimize excess emissions, the provision also fails to be sufficientl y narrowl y drawn to justify shielding from monetary penalties for violations. Moreover, Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) currentl y applies not only to malfunctions but also to startup and shutdown events, contrary to the EPA's interpretation of the CAA. Thus, this provision is not appropriate as an affirmat ive defense provision because it is inconsistent with fundamental requirements of the CAA as interpreted in the EPA's SSM Policy . For these reasons, the EPA is proposing to find that Ga. Comp. R. & Regs. 391 - 3 - 1 - .02(2)(a)(7) is substantially inadequate to meet CAA requirements and thus proposing to issue a SI P call with respect to this provision.

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Page 190 of 339 4. Kentuck y a. Petitioner ' s Anal ys is The Petitioner objected to a generally applicable provision that allows discretionary

exemptions from otherwise applicable SIP emission limitations in Kentuck y's SIP (401 KAR 50:055 §1(1)). 121 , 122 The provision provides that "[e]missions which, due to shutdown or malfunctions, temporarily exceed the standard . . . shall be deemed in violation of such standards unless the requireme nts of this section are satisfied and the determinations specified in subsection (4) . . . are made." The provision requires sources to notify

the director that such violations are going to or have occurred. The provision then provides that "[a] source sha ll be relieved from compliance with the standards . . . if the director determines" that the source has met a number of enumerated criteria. The Petitioner argued that this provision could provide an exemption from the otherwise applicable SIP emission li mitations, and such an exemption is impermissible under the CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. Moreover, the Petitioner objected to this discret ionary exemption because the director's determination 121 Petition at 39 - 40. 122 The EPA notes that the Petitioner also identified several additional pollutant - specific and source category - specific provisions in Kentucky 's SIP that it alleged are inconsistent with the CAA and the EPA's SSM Policy . However, the Petitioner did not request that the EPA address those SIP provisions in its remedy request, and thus the EPA is not addressing those provisions in this action. The EPA may elect to evaluate those provisions in a later action.

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Page 191 of 339 that the source has met the specified criteria could be interpreted to excuse excess emissions during such time period and could thus be read to preclude enforcement b y the EPA or citizens in the event that the director elects not to treat the event as a violation. Thus, in addition to creating an impermissible exemption for the excess emissions, the Petitioner argued, the provision is also inconsistent with the CAA as interpreted in the EPA's SSM Policy because it allows the director to make a unilateral decision that the excess emissions were not a violation and thus could bar enforcement for the excess emissions by

the EPA and citizens. The Petitioner noted that the criteria that sources must demonstr ate to the director in order to qualify

for the exemption "resemble the criteria that are supposed to guide a state's enforcement discretion for malfunctions," but that if the provision is not removed from the SIP, it "must stipulate that all excess emissi ons are violations and preserve the authority of EPA and citizens to enforce the SIP standards and limitations." Thus, the Petitioner viewed this provision as either an impermissible discretionary exemption mechanism or an impermissible enforcement discret ion provision. b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requir ements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission

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Page 192 of 339 limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of such an exemption from the emission limitations in 401 KAR 50:055 §1(1) is thus a substantial inadequacy

and renders this specific SIP provision impermissible. The EPA believes that 401 KAR 50:055 §1(1) is impermissible as an unbounded director's discretion provision that makes a state official the unilateral arb iter of whether the excess emissions in a given event constitute a violation. In the case of 401 KAR 50:055 §1(1) , the provision authorizes the state official to make a determination that the source has met the specified criteria, and such a determination could be interpreted to excuse excess emissions during the event and could thus be read to preclude enforcement by the EPA or through a citizen suit . In addition, the provision vests a state official with the unilateral power to grant an exemption from the otherwise applicable SIP emission limitation, without any

additional public process at the state or federal level. Most importantly , however, the provision authorizes a state official to create an exemption from the emission limitation, and such an exempt ion is impermissible in the first instance. Such a director's discretion provision undermines the SIP emission limitations, and the emissions reductions they are intended to achieve, and renders them less enforceable b y the EPA or through a citizen suit . T he EPA believes that the inclusion of an insufficientl y bounded director's discretion provision in 401 KAR 50:055 §1(1) is thus

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Page 193 of 339 a substantial inadequacy

and renders this specific SIP provision impermissible for this reason, in addition to the creation of an impermissible exemption. The EPA also notes that after the submission of the Petition, there has been a subsequent regulatory

action that touched upon this SIP provision tangentially . In connection with a redesignation of the Kentucky portion of the tri - state Cincinnati Hamilton area for the 1997 PM 2.5 NAAQS, the state submitted an interpretive letter to the EPA explaining the state's reading of 401 KAR 50:055 §1(1). 123 In this November 4, 2011 letter, the Kentucky Division of Air Quality (KDAQ) stated that it has "never formally taken the position that excess emissions under the regulations are not violations" and that a determination by KDAQ "does not limit" the authorit y of the EPA and citizens to take enforcement action. 124 Based on the state's interpretation of 401 KAR 50:055 §1(1), the EPA at that time concluded that the provision could be construed not t o bar enforcement b y the EPA or through a citizen suit if the state elects not to pursue enforcement; i.e. , it could be construed as an enforcement disc retion provision applicable to state personnel. In the context of acting upon the redesignation request under CAA section 107(d)(3), this clarification from the state was sufficient to address the concern raised in comments on that action. Nevertheless, th e EPA noted in the redesignation

123 See "Approval and Promulgation of Implementation Plans and Designations of Areas for Air Quality

Planning Purposes; Kentuck y; Redes ignation of the Kentucky Portion of the Cincinnati - Hamilton, OH - KY - IN 1997 Annual Fine Particulate Matter Nonattainment Area to Attainment," 76 FR 77903 (Dec. 15, 2011). 124 This letter is in the docket for this action.

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Page 194 of 339 action that it would evaluate 401 KAR 50:055 §1(1) as part of its consideration of issues raised b y the Petition. At this juncture, the EPA believes that the difference of views about the correct reading of 401 KAR 50:055 §1(1) illustrates the need to examine this SIP provision again. The EPA appreciates KDAQ's clarification of its reading of the provision in the November 4, 2011, letter and the EPA considers that interpretation sufficient for purposes of the redesignation action. However, in the course of reevaluating this provision in light of the issues raised in the Petition, the EPA believes that the provision contains regulatory

language that is potentially contradictory

and requires formal revision to eliminate signif

icant ambiguities. For example, subsection 1 of the provision states that: "[e]missions which, due to shutdown or malfunctions, temporarily exceed the standard . . . shall be deemed in violation of such standards unless the requirements of this section are satisfied." In subsection 4, the provision states that "a source shall be relieved from compliance with the standards . . . if the director determines, upon a showing b y the owner or operator of the source, that" certain conditions are met. KDAQ has indic ated that it reads these provisions not to bar enforcement by the EPA or through a citizen suit in the event that the state does not pursue enforcement, but the EPA believes that the provision is sufficiently

ambiguous on this point that a revision is nece ssary to ensure that outcome in the event of an enforcement action. As discussed in section VI .B of this notice, the EPA believes that in some instances it is appropriate to clarify provisions of a SIP through the use of interpretive letters. However, in some cases, there may be areas of regulatory ambiguity

in a SIP's

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Page 195 of 339 provisions that are sufficiently significant for which resolution is both appropriate and necessary . Because the text of Kentucky 's SIP provision is not clearly phrased in terms of the state's exercise of enforcement discretion and could be interpreted to allow discretionary

exemptions from the otherwise appli cable SIP emission limitations or as an affirmative defense provision inconsistent with the criteria recommended in the EPA's SSM Policy , the EPA believes that the provision is substantially inadequate to meet CAA requirements. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to 401 KAR 50:055 §1(1) . The EPA believes that this provision requires clarification to ensure that it meets CAA requirements. The current provision could be read to allow for exemptions from the otherwise ap plicable SIP emission limitations, and such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs in section s 110(a)(2)(A), 110(a) (2) (C), and 302(k). In addition, 401 KAR 50:055 §1(1) could be read to allow exemption s through a state official' s unilateral exercise of discretion ary authority

that is insufficiently bounded and includes no additional public process at the state or federal level, and such provisions are inconsistent with the fundam ental requirements of the CAA with respect to SI Ps and SI P revisions. Moreover, the provision could be read to create discretion to allow case - by - case exemptions from emission limitations when such exemptions are not permissible in the first instance. In l ight of the potential conflicts between the provision and the differing interpretations that parties or a court might give the provision in an enforcement action, the EPA is proposing

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Page 196 of 339 to find that 401 KAR 50:055 §1(1) is substantially inadequate to meet CAA requirements and thus proposing to issue a SI P c all with respect to this provision . 5. Kentuck y: Jefferson County a. Petitioner ' s Anal ys is First, the Petitioner objected to a generally applicable provision in the Jefferson County Air Regulations 1.07 because it provides for discretionary exemptions from compliance with emission limitations during startup, shutdown, and malfunction. 125 , 126 The provision states that " [e]missions due to startup, shutdown, malfunction, or emergency , that temporarily exceed the standards . . . shall be deemed in violation of those standards unless, based upon a showing b y the owner or operator of the source and an affirmative determination by the District, the applicable requirements of this regulation are satisfied. " The provis ion requires different demonstrations for exemptions for excess emissions during startup and shutdown (Regulation 1.07 § 3) , malfunction (Regulation 1.07 § 4 and § 7) , and emergency (Regulatio n 1.07 § 5 and § 7). The Petitioner argued that this provision could provide exemptions from the otherwise applicable SIP emission limitations, and that such exemptions are impermissible under the CAA because the statute and the EPA ' s interpretation of the

125 The Petitioner noted that this regulation was approved into Kentucky 's SIP in "Approval and Promulgation of Air Quality I mplementation Plans; Kentucky ; Approval of Revisions to State Implementation Plan; Revised Format for Materials Being In corporated b y Reference for Jefferson County , Kentuck y," 66 FR 53503 at 53660 (Oct. 23, 2001). 126 Petition at 40 - 42.

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Page 197 of 339 CAA in the SSM Polic y require that all excess emissions be treated as violations. T he Petitioner objected to this provision as allowing discretionary exemption s, because a local official' s determination that the source has met the specified criteria could be interpreted to ex cuse excess emissions during such events and could thus be read to preclude enforcement b y the EPA or citizens if the district elects not to treat the event as a violation. Second, the Petitioner objected to the affirmative defense for emergencies in Jeff erson County

Air Regulations 1.07 . The Petitioner noted that the SIP provision

" mirrors the language in 40 C.F.R. § 70.6(g) " in the EPA's own title V regulations. Thus, the Petitioner argued that the provision should not be included in the SIP because it i s modeled on the EPA's own title V regulations, and such regulations do not belong in the SIP. The Petitioner also argued that even if the provision were appropriate as a SIP provision, it is deficient because it is not a "true affirmative defense." On the latter point the Petitioner argued that a "true affirmative defense" is a defense to be asserted b y the source in the context of a judicial or administrative enforcement proceeding. The Petitioner opined that the emergency affirmative defense in Jefferson County Air Regulations 1.07 "appears to allow the District to decide whether the defense applies." b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a government official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the

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Page 198 of 339 definition of "emission limitations" in CAA section 302(k), suc h emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create ex emptions such that the excess emissions during startup, shutdown, load change, or emergencies are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of such an exemption from the emission limitations in Jefferson County Air Regulations 1.07 is thus a substantial inadequacy and renders this specific SIP provision impermissible. The EPA believes that Regulation 1. 07 is also impermissible as an insufficiently bounded director's discretion provision that makes a local official the unilateral arbiter of whether the excess emissions in a given event constitute a violation. In the case of Regulation 1.07 , the provision authorizes local officials to make a determination that the source has met the specified criteria for each t ype of event

— startup and shutdown (Regulation 1.07 § 3), malfunction (Regulation 1.07 § 4), emergency (Regulation 1.07 § 5), and extended malfunctio n or emergency (Regulation 1.07 § 7). The local official's "affirmative determination" that such requirements have been met has the effect of excusing the excess emissions (Regulation 1.07 § 2.1). This determination could be interpreted to preclude enforce ment by the EPA or through a citizen suit . In addition, the provision vests the local official with the unilateral power to grant an exemption from the otherwise applicable SIP emission limitations, without any additional public process at

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Page 199 of 339 the state or fed eral level. Most importantly , however, the provision authorizes the local official to create an exemption from the emission limitation, and such an exemption is impermissible in the first instance. Such a director's discretion provision undermines the emis sion limitations, and the emissions reductions they are intended to achieve, and renders them less enforceable b y the EPA or through a citizen suit . The EPA believes that the inclusion of an insufficiently bounded director's discretion provision in Regulat ion 1.07 is thus a substantial inadequacy and renders this specific SIP provision impermissible for this reason, in addition to the creation of an impermissible exemption. The EPA also agrees that Regulation 1.07 provides an impermissible exemption for ex cess emissions that occur during "emergencies." The provision uses language that is borrowed from the EPA ' s title V regulations (Regulation 1.07 § 5) but that is not appropriate for a SIP provision ( s ee sec tion VII.D of this notice). In addition, because R egulation 1.07 § 2.1 provides that the district may make a determination of whether "applicable requirements" of the regulation are "satisfied," and the affirmative defense for emergencies is defined as one such "applicable requirement," the structure of R egulation 1.07 could be read as providing the district with the unilateral discretion to decide that the source has met the conditions for the affirmative defense. The EPA agrees with the Petitioner that affirmative defenses are onl y permitted in the conte xt of an enforcement proceeding and cannot be granted unilaterall y b y a state agency , because this would have the effect o f precluding the EPA or the public from taking enforcement action. Regulation 1.07 also does not explicitly limit the affirmative defense for emergency

events to civil penalties. Although the EPA believes that narrowly drawn

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Page 200 of 339 affirmative defenses are permitted under the CAA for malfunction events ( see s ection s IV .B and VII.B of this notice), the EPA ' s interpretation of the CAA is that affirmative defenses can onl y shield the source from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar an y enforcement action for injunctive relief for violations of emission limitations is inconsistent with the requirements of CAA sections 113 and 304. Inaddition, the provision does not contain elements for establishing the affirmative defense consistent with all of the recommended criteria in the EPA ' s SSM Policy . The EPA acknowledges that the SSM Policy is only guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA . Nonetheless , through this rulemaking , the EPA is proposing to determine that Regulatio n 1.07 does not include criteria that are sufficiently robust to qualify as an acceptable affirmative defense provision for purposes of SIP requirements. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to Jefferson County Air Re gulation 1.07 . 127 The EPA believes that this provision allows for exemptions from the otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations i n SIPs in section s 110(a)(2)(A), 110(a) (2) (C), and 302(k). In addition, Regulation 1.07

127 The EPA notes that Kentucky has recentl y made a SIP submission that includes revisions to the portion of the SIP applicable to Jefferson Count y that would amend Regulation 1.07. In this action, the EPA is only evaluating Regulation 1.07 as currently approved into the SIP. The EPA is not evaluating the more recent SI P submission as part of this action. The EPA will address the SIP submission in a later action.

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Page 201 of 339 allows for such exemption s through a local official' s unilateral exercise of discretion ary authority that is insufficiently bounded and includes no additional public pr ocess at the state or federal level, and such provisions are inconsistent with the fundamental requirements of the CAA with respect to SI Ps and SI P revisions. Moreover, the discretion created b y these provisions allows case - by - case exemptions from emission limitations , when such exemptions are not permissible in the first instance. For these reasons, the EPA is proposing to find that Regulation 1.07 is substantially inadequate to meet CAA requirements and thus propo sing to issue a SIP call with respect to this provision . The EPA also proposes to grant the Petition because Regulation 1.07 contains an impermissible exemption for excess emissions during emergency events, conditioned upon an affirmative defense provision that is inconsistent with the criteria r ecommended in the EPA's SSM Policy. Regulation 1.07 can be read to authorize the district to grant an exemption under § 2.1 and § 5, and such an interpretation could preclude the EPA and the public from bringing an enforcement action. Furthermore, the affi rmative defense provision is impermissible because it does not explicitly limit the defense to monetary penalties, and it does not include sufficient criteria to assure that sources seeking to raise the affirmative defense have in fact been properl y design ed, maintained, and operated, and to assure that sources have taken all appropriate steps to minimize excess emissions. The provision therefore also fails to be sufficientl y narrowl y drawn to justify shielding from monetary

penalties for violations. For th ese reason s , the EPA is proposing to find that Regulation 1.07 is substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to th is provision .

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Page 202 of 339 6. Mississippi a. Petitioner ' s Anal ys is The Petitioner objected to two generall y applicable provisions in the Mississippi SIP that allow for affirmative defenses for violations of otherwise applicable SI P emission limitations during periods of upset, i.e. , malfunctions (11 - 1 - 2 Miss. Code R. § 10 .1) and unavoidable maintenance (11 - 1 - 2 Miss. Code R. § 10.3). 128 First, the Petitioner objected to both of these provisions based on its assertion that the CAA allows no affirmative defense provisions in SIPs. Second, the Petitioner asserted that even if af firmative defense provisions were permissible under the CAA , the affirmative defenses in these provisions "fall far short of the EPA policy." Specifically , the Petitioner argued that the EPA ' s guidance for affirmative defenses recommend s that they " are not appropriate where a single source or a small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments ," 129 and Mississippi's provisions do not contain a restriction to address this point. Further, the Petitioner argued that the affirmative defenses in Mississippi's SI P are not limited to actions seeking civil penalties and that they

fail to meet other criteria "that EPA requires for acceptable defense provisions." 130 Finally , the Petitioner argued that the CAA , as interpreted in EPA's SSM Policy , do es not allow affirmative defenses for excess emissions during maintenance events under an y circumstances. 128 Petition at 47 - 49. 129 Pet ition at 48. 130 Petition at 47 - 48.

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Page 203 of 339 The Petitioner also objected to a generally applicable provision that provides an exemption from otherwise applicable SIP emissi on limitations during startup and shutdown (11 - 1 - 2 Miss. Code R. § 10.2). 131 Within that provision, 11 - 1 - 2 Miss. Code R. § 10.2(a)(2) specifies that emission limitations apply during startup and shutdown except "when a startup or shutdown is infrequent, the duration of the excess emissions is brief in each event, and the design of the source is such that the period of excess emissions cannot be avoided without causing damage to the equipment or persons." The Petitioner argued that such an exemption is inconsi stent with the requirements of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA , as interpreted in the EPA's SSM Policy , require that all such excess emissions be treated as violations. b. The EPA ' s Evaluation The EPA di sagrees with the Petitioner ' s contention that no affirmative defense provisions are permissible in SI Ps under the CAA. As explained in more detail in section IV of this notice, the EPA interprets the CAA to allow affirmative defense provisions for malfunct ions. So long as these provisions are narrowly drawn and consistent with the CAA, as recommended in the EPA ' s guidance for affirmative defense provisions in SI Ps, the EPA believes that states may elect to have affirmative defens e provisions for malfunction s. The EPA agrees, however, that the affirmative defense contained in 11 - 1 - 2 Miss. Code R. § 10.1 for upsets is not an acceptable affirmative defense provision under the

131 Petition at 47 - 49.

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Page 204 of 339 CAA as interpreted in the EPA's SSM Policy . Section 10.1 provides that "[t]he occurre nce of an upset ... constitutes an affirmative defense to an enforcement action brought for noncompliance with emission standards," conditioned upon the source meeting a series of criteria. Although the EPA believes that narrowl y drawn affirmative defenses are permitted under the Act for malfunction events ( i.e. , ups ets) (see section VII.B of this notice), the EPA ' s interpretation of the CAA is that an affirmative defense can onl y shield the source from monetary penalties and cannot be a bar to injunctive relief. The provisions of 11 - 1 - 2 Miss. Code R. § 10.1 applicable to upsets appears to create a bar not just to monetary penalties but also to injunctive relief. An affirmative defense provision that purports to bar an y enforcement action for injunctive relief for violations of emission limitations is inconsistent with the requirements of CAA sections 113 and 204. In addition, the E PA agrees that 11 - 1 - 2 Miss. Code R. § 10.1 creates an affirmative defense for upsets with conditions that are not full y consistent with the criteria that the EPA recommends in the SSM Policy . The EPA acknowledges that the SSM Policy

is only guidance concer

ning what ty

pes of SIP provisions could be consistent with the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is proposing to determine that 11 - 1 - 2 Miss. Code R. § 10.1 does not include criteria that are sufficiently

robust to quali fy

as an acceptable affirmative defense provision. Although this provision does contain many criteria that are comparable to those the EPA recommends, it does not address several that the EPA believes to be necessary to assure that the affirmative defense is available onl y in appropriate circumstances. For example,

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Page 205 of 339 11 - 1 - 2 Miss. Code R. § 10.1 does not contain criteria requiring the source to show that the malfunction event was not part of a recurring pattern indicative of inadequate design, operation, or ma intenance. In additi on, as discussed in section VII.B of this notice, the EPA believes that affirmative defens e provisions should address the issue of single sources or groups of sources that have the potential to have adverse impacts on the NAAQS or PSD i ncrements in one of two recommended way s. On its face, 11 - 1 - 2 Miss. Code R. § 10.1 does not appear to address this issue in either way . The EPA believes that the inclusion of the bar to enforcement for injunctive relief and the insufficiently robust qualif yi ng criteria render 11 - 1 - 2 Miss. Code R. § 10.1 substantially inadequate to meet CAA requirements. The EPA also agrees with the Petitioner that the affirmative defense for excess emissions during maintenance provided in 11 - 1 - 2 Miss. Code R. § 10.3 is not consistent with CAA requirements. As explained in sections IV and VII.C of this notice, the EPA believes that affirmative defenses are onl y permissible under the CAA in the case of events that are bey ond the control of the source, i.e. , malfunctions. A ffi rmative defense provisions are not appropriate in the case of planned source actions, such as maintenance , because sources should be expected to compl y with applicable emission limitations during those normal planned and predicted modes of source operation . Although this provision does contain parameters to limit its availability , it still provides an affirmative defense that is inconsistent with CAA requirements. The EPA believes that the inclusion of the affirmative defense for excess emissions during mai ntenance in 11 - 1 - 2 Miss. Code R. § 10.3 renders that provision substantially inadequate to meet CAA requirements.

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Page 206 of 339 The EPA also agrees that 11 - 1 - 2 Miss. Code R. § 10.2(a)(2) contains an exemption for excess emissions during startup and shutdown events that is inconsistent with CAA requirements. The EPA acknowledges that the state has imposed some parameters on the scope of the exemption by requiring that the events be infrequent, of short duration, and required to avoid damage to equipment or people. Howeve r, the EPA does not interpret the CAA to allow for exemptions for excess emissions during startup and shutdown. As discus sed in section VII.A of this notice, the E PA believes that sources should be designed, operated, and maintained so that they can comply with applicable SIP emission limitations during normal modes of source operation. If appropriate, the state may elect to develop special emission limitations or other control measures that apply during startup and shutdown. The EPA believes that the inclu sion of an exemption for excess emissions during startup and shutdown in 11 - 1 - 2 Miss. Code R. § 10.2 is substantially

inadequate to meet CAA requirements. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to 11 - 1 - 2 Miss. Code R. § 10.1, 11 - 1 - 2 Miss. Code R. § 10.2, and 11 - 1 - 2 Miss. Code R. § 10.3. None of these provisions is consistent with the requirements of the CAA as interpreted in the EPA's recommendations in the EPA's SSM Policy . The EPA believes that 11 - 1 - 2 Miss. Code R. § 1 0.1 and 11 - 1 - 2 Miss. Code R. § 10.3 create affirmative defense s that are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by purporting to create a bar to enforcement that applies not just to monetary penalties but

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Page 207 of 339 also to injunctive relief, these provisions are inconsistent with the requirements of CAA sections 113 and 304. By not including sufficient criteria to assure that so urces seeking to raise these affirmative defenses have in fact been properl y designed, maintained, and operated, and to assure that sources have taken all appropriate steps to minimize excess emissions, 11 - 1 - 2 Miss. Code R. § 10.1 also fails to be sufficie ntl y narrowly drawn to justify shielding from monetary penalties for violations. The comparable affirmative defense for maintenance in 11 - 1 - 2 Miss. Code R. § 10.3 is not consistent with CAA requirements because maintenance is a normal mode of source operat ion during which the source should be expected to compl y with the applicable emission limitations. Thus, these provisions are not appropriate as affirmative defense provisions because they are inconsistent with fundamental requirements of the CAA. The EPA is proposing to find that 11 - 1 - 2 Miss. Code R. § 10.2 is substantially inadequate to meet CAA requirements because it provides an exemption for excess emissions that occur during startup and shutdown, which are normal modes of source operation during whic h sources should compl y with applicable emission limitations. Such an exemption provision is inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302( k). For these reasons, the EPA is proposing to find that these provisions are substantially

inadequate to meet CAA requirements and thus proposing to issue a SI P call with respect to these provisions. 7. North Carolina

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Page 208 of 339 a. Petitioner ' s Anal ys is The Peti tioner objected to two generall y applicable provisions in the North Carolina SIP that provide exemptions for emissions exceeding otherwise applicable SI P emission limitations at the discretion of the state agency during malfunctions (15A N.C. Admin. Code 2 D.0535(c)) and during startup and shutdown (15A N.C. Admin. Code 2D.0535(g)). 132 The Petitioner argued that both provisions allow a state official to exempt sources from compliance with otherwise applicable SIP emission limitations, and therefore both provis ions allow a state official to decide whether a violation has occurred. This decision would preclude enforcement action by the EPA and citizens for both civil penalties and injunctive relief, and such an interpretation is inconsistent with the CAA and the EPA's SSM policy interpreting the CAA. The Petitioner noted that the director's discretion provision for malfunctions provided by 15A N.C. Admin. Code 2D.0535(c) is limited to 15 percent of operating time during each calendar y ear. According to the Petitio ner, this temporal limit does not render the provision permissible under the CAA , as interpreted in the EPA's SSM policy , because the limit "does nothing to ensure that ambient air quality

standards are met." 133 b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state

132 Petition at 57 - 58. 133 Petition at 58.

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Page 209 of 339 official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitations must be considered violatio ns, whether or not the state elects to exercise its enforcement discretion. The EPA believes that 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g) are impermissible as insufficiently bounded director's discretion provisions. The explici t text of 15A N.C. Admin. Code 2D.0535(c) states that "[a]ny excess emissions ... are considered a violation ... unless the owner or operator of the source of excess emissions demonstrates to the Director, that the excess emissions are the result of a malfunct ion." Similarly , 15A N.C. Admin. Code 2D.0535(g) provides that a state official may

determine that excess emissions during startup and shutdown are unavoidable, in which case emissions exceeding the otherwise applicable SI P limitations are not considered v iolations. These provisions vest the state official with unilateral power to grant an exemption from the otherwise applicable SI P emission limitation, without any

public process at the state or federal level. Such a determination that the excess emissions in a given event do not constitute a violation could preclude enforcement b y the EPA or through a citizen suit . While both provisions contain a list of factors that the state official "shall consider" in making the discretionary determination, they nevertheless empower the state official to create an exemption from the emission limitations, and such an exemption i s impermissible in the first instance. Such a director's

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Page 210 of 339 discretion provision undermines the emission limitations in the SIP, and the emissions reductions they

are intended to achieve, and renders them less enforceable by the EPA or through a citizen suit . The EPA believes that the inclusion of an insufficiently bounded director's discretion provision in 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g) is thus a substantial inadequacy and renders these specific SIP provisions impermissibl e for this reason. Finally , the EPA notes that 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g) contain a number of criteria for consideration by the state official when deciding whether the excess emissions should be treated as exempt and thus not as a violation. Superficially , these criteria are similar to those recommended by the EPA for affirmative defense provisions for malfunctions to meet CAA requirements, but they are not presented as criteria for an affirmative defense. Instead, each provision is structured so that if the source has met these criteria, the state official will deem the excess emissions not a violation. Moreover, instead of requiring that the source establish these facts in an administrative or judicial process, th e provision appears to authorize the state official to make a unilateral determination whether the emissions are a violation and thus appears to bar enforcement b y the EPA or through a citizen suit . c. The EPA ' s Proposal The EPA proposes to grant the Pet ition with respect to 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g). The EPA believes that both of these provisions could be read to allow for exemptions from otherwise applicable SIP emission limitations through a state official's un ilateral exercise of discretionary authority that is

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Page 211 of 339 insufficiently

bounded and includes no additional public process at the state or federal level. Moreover, the discretion created b y this provision could be read to allow case - by case exemptions from emis sion limitations when such exemptions are not permissible in the first instance. Such exemption provisions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110( a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the state has defined violations in a way that would interfere with effective enforcement by the EPA and citizens for excess emissions during these events as provided in CAA sec tions 113 and 304. For these reasons, the EPA is proposing to find 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g) are substantially

inadequate to meet CAA requirements and thus is proposing to issue a SIP call with respect to these pro visions. 8. North Carolina: Fors yth County a. Petitioner ' s Anal ys is The Petitioner objected to two generall y applicable provisions in the Fors yth County Code that provide exemptions for emissions exceeding otherwise applicable SI P emission limitations at the discretion of a local official during malfunctions (Fors yth County Code, ch. 3, 3D.0535(c)) and startup and shutdown (Fors yth County Code, ch. 3, 3D.0535(g)). 134 The Petitioner argued that these "local regulations have the same problems as the [North Carolina] state - wide regulations" addressed in the previous

134 Petition at 58.

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Page 212 of 339 section. 135 The Petitioner argued that both provisions allow the local official to exempt sources from compliance with otherwise applicable SIP emission limitations, and therefore both provisions al low the local official to decide whether a violation has occurred. This decision would preclude action b y the EPA and citizens for both civil penalties and injunctive relief, and such a provision is inconsistent with the CAA and the EPA's SSM policy

interp reting the CAA. b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a government official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the leve l of the applicable emission limitations must be considered violations, whether or not the state elects to exercise its enforcement discretion. The EPA believes that Forsy th Count y Code, ch. 3, 3D.0535(c) and Forsyth County Code, ch. 3, 3D.0535(g) are imp ermissible as insufficientl y bounded director's discretion provisions. Forsy th Count y Code, ch. 3, 3D.0535(c) states that "[a]ny excess emissions ... are considered a violation ... unless the owner or operator of the source of excess emissions demonstrates to the Director, that the excess emissions are the result of

135 Petition at 58.

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Page 213 of 339 a malfunction." Similarl y, Fors yth County Code, ch. 3, 3D.0535(g) provides that a local official may

determine that excess emissions during startup and shutdown are unavoidable, in which case emissi ons exceeding the otherwise applicable SIP limitations are not considered violations. These provisions vest the local official with unilateral power to grant an exemption from the otherwise applicable SI P emission limitation, without any

public process at the local, state, or federal level. Such a determination that the excess emissions in a given event do not constitute a violation could preclude enforcement b y the EPA or through a citizen suit . While both provisions contain a list of factors that the loca l official "shall consider" in making the discretionary determination, they nevertheless empower the local official to create an exemption from the emission limitation, and such an exemption is impermissible in the first instance. Such a director's discret ion provision undermines the emission limitations in the SIP, and the emissions reductions they

are intended to achieve, and renders them less enforceable by the EPA or through a citizen suit . The EPA believes that the inclusion of an insufficiently bounde d director's discretion provision in Forsy th Count y Code, ch. 3, 3D.0535(c) and Fors yth County Code, ch. 3, 3D.0535(g) is thus a substantial inadequacy and renders these specific SIP provisions impermissible for this reason. As with the comparable statewi de SIP provisions, the EPA notes that Fors yth County Code, ch. 3, 3D.0535(c) and Fors yth County Code, ch. 3, 3D.0535(g) also would not qualify

as affirmative defense provisions consistent with CAA requirements. The provisions authorize the local official t o deem excess emissions exempt and thus not subject to enforcement for injunctive relief. The provisions also appear to authorize the

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Page 214 of 339 local official to make a unilateral determination that the emissions are not a violation and thus to bar enforcement by th e EPA or through a citizen suit . c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to Fors yth County Code, ch. 3, 3D.0535(c) and Forsy

th County Code, ch. 3, 3D.0535(g). The EPA believes that both of these provisions could be read to allow for exemptions from otherwise applicable SIP emission limitations through a local official's unilateral exercise of discretionary authority that is insufficiently

bounded and includes no additional public process at the local, state, or federal le vel. Moreover, the discretion created by this provision could be read to allow case - by - case exemptions from emission limitations when such exemptions are not permissible in the first instance. Such exemption provisions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required b y sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the air agency has defined violations in a way that would interfe re with effective enforcement by the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find that Fors yth County Code, ch. 3, 3D.0535(c) and Forsy th County Code, ch. 3, 3D.0535(g) are substantiall y inadequate to meet CAA requirements and thus is proposing to issue a SIP call with respect to these provisions. 9. South Carolina a. Petitioner ' s Anal ys is

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Page 215 of 339 The Petitioner objected to three provisions in the South Carolina SIP, arguing that they contained impermissible source category - and pollutant - specific exemptions. 136 The Petitioner characterized these provisions as providing exemptions from opacity limits for fuel - burning operations for excess emissions that occur durin g startup or shutdown (S.C. Code Ann. Regs. 61 - 62.5 St 1(C)), exemptions from NO x limits for special - use burners that are operated less than 500 hours per ye ar (S.C. Code Ann. Regs. 61 - 62.5 St 5.2(I)(b)(14)), and exemptions from sulfur limits for kraft pulp mills for excess emissions that occur during startup, shutdown, or malfunction events (S.C. Code Ann. Regs. St 4( XI )(D)(4) ) . The Petitioner argued that such exemptions violate the fundamental CAA requirement that all excess emissions be considered violations and that they interfere with enforcement b y the EPA and citizen s. b. The EP A ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations. In accordance with CAA sections 110(a)(2)(A) and 302(k), SIPs must contain " emission limitations " and those limitations must be co ntinuous. Thus, any

excess emissions above the level of the applicable SIP emission limitation must be considered a violation of such limitation, regardless of whether the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, maintenance, or malfunctions

136 Petition at 65 - 66.

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Page 216 of 339 are not violations of the applicable SIP emission limitations are inconsistent with the fundamental requirements of the CAA. The first provision identified by the Petitioner states that " [t]he opacity standards set forth above do not apply during startup or shutdown. " The EPA agrees with the Petitioner that the effect of this language is to exempt excess emissions that occur during startup or shutdown from otherwis e applicable opacity standards, essentially

treating such emissions as non - violations. The EPA believes that such automatic exemptions are impermissible under the CAA. By having SIP provisions that define what would otherwise be violations of the applicabl e SIP emission limitations as non - violations, the state has effectivel y negated the ability of the EPA or the public to enforce against those violations. Therefore, the EPA believes that the inclusion of such an automatic exemption in S.C. Code Ann. Regs. 61 - 62.5 St 1(C) is impermissible and renders the provision a substantial inadequacy

under the CAA. With respect to the Petitioner ' s second objection relating to the exemption for special - use burners, however, the EPA disagrees with the Petitioner's charac terization of the provision. S.C. Code Ann. Regs. 61 - 62.5 St 5.2(I)(b)(14) provides: " The following sources are exempt from all requirements of this regulatio n unless otherwise specified: . .

. (14) Special use burners, such as start - up/shut - down burners, that are operated less than 500 hours a year. " T he Petitioner argued that this provision provides an exemption from otherwise applicable NO x limitations for excess emissions that occur during startup or shutdown. Although this provision superficiall y resembles an exemption for emissions during startup and shutdown, the EPA interprets this provision merely to define a specific

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Page 217 of 339 source category

— special - use burners

—that is not s ubject to control under S.C. Code Ann. Regs. 61 - 62.5 St 5.2, Control of Oxides of Nitrogen (NOx) . In other words , the provision reflects that regulation of special - use burners is not necessary in order to meet the applicable reasonably available control technology (RACT) requirements or an y other C AA requirements for NOx emissions in th is area. Rather than an exemption for NOx emissions during startup and shutdown for a source category that is regulated for NOx, this provision merely

reflects that this category of source is not subject to regulation under S.C. Code Ann. Regs. 61 - 62.5 St 5.2. Therefore , the EPA disagrees with the Petitioner that S.C. Code Ann. Regs. 61 - 62.5 St 5.2(I)(b)(14) renders the South Carolina SIP substantially

inadequate . Finally , the EPA agrees that S.C. Code Ann. Regs. St 4( XI )(D)(4) implicitly includes impermis sible exemptions for excess emissions during startup, shutdown, and malfunction events for the affected sources. The provision states that " [t]he Department will consider periods of excess emissions reported under Subpart D(3) of this section to be indicat ive of a violation if " the emissions from the specified source categories exceed certain limits over certain time periods. For example, for recovery furnaces, S.C. Code Ann. Regs. St 4( XI )(D)(4) (b) specifies that excess emissions will be "indicative of a v iolation" if "(a) the number of 12 hour exceedances from recovery furnaces is greater than 1% of the total number of contiguous 12 hour periods in a quarter (excluding periods of startup, shutdown, or malfunction . . . )." The parenthetical explicitly excl udes the excess emissions that occur during startup, shutdown, and malfunction, automatically treating those emissions as non - violations. The other two source category - specific

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Page 218 of 3 39 provisions to be considered in determining whether excess emissions are indicat ive of a violation contain similar parenthetical exclusions. Therefore , the se provision s could reasonabl y be construed to preclude the EPA and the public from enforcing against violations that occur during these SSM events at these sources . The EPA believes that S.C. Code Ann. Regs. St 4(XI)(D)(4) includes automatic exemptions for excess emissions during SSM events for the three categories of sources and is thus substantially inadequate to satisfy

CAA requirements. c. The EPA ' s Proposal Th e EPA proposes to grant the Petition with respect to S.C. Code Ann. Regs. 61 - 62.5 St 1(C) . The EPA believes that S.C. Code Ann. Regs. 61 - 62.5 St 1(C) allows for an exemption from otherwise applicable SIP emission limitations and that such exemptions are in consistent with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). The EPA also proposes to grant the Petition with respect to S.C. Code Ann. Regs. St 4( XI )(D)(4) . This provision appears to define violations at three sourc e categories in a way that excludes excess emissions that occur during SSM events. It is unclear whether this provision is intended only to appl y to the exercise of enforcement discretion by state personnel, but the EPA believes that it could reasonabl y be interpreted to preclude the EPA and citizen enforcement as well. Because S.C. Code Ann. Regs. St 4( XI )(D)(4) appears to define violations of the applicable emission limitations in a way

that excludes excess emissions during SSM events, it is inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that S.C. Code Ann. Regs. 61 -

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Page 219 of 339 62.5 St 1(C) and S.C. Code Ann. Regs. St 4( XI )(D)(4) are substantiall y inadequate to meet CAA requirements and proposes to issue a SIP c all wi th respect to these provisions. However, the EPA proposes to deny the Petition with respect to S.C. Code Ann. Regs. 61 - 62.5 St 5.2(I)(b)(14), which does not exempt excess emissions from an otherwise app licable SIP emission limitation during startup and shutdown but rather excludes a specific source category from regulation under the South Carolina SIP, because such regulation was deemed unnecessary to meet other applicable CAA requirements. As a conseque nce, this provision does not constitute a substantial inadequacy

in the SIP. 10. Tennessee a. Petitioner ' s Anal ys is The Petitioner objected to three provisions in the Tennessee SIP. 137 First, the Petitioner objected to two provisions that authorize a stat e official to "excuse or proceed upon" ( Tenn. Comp. R. & Regs. 1200 - 3 - 20 - .07(1) ) violations of otherwise applicable SIP emission limitations that occur during "malfunctions, startups, and shutdowns" ( Tenn. C omp. R. & Regs. 1200 - 3 - 20 - .07(3)). The Petitioner argued that together, these provisions constitute a "blanket exemption from enforcement at the unfettered discretion of" a state official. Further, the Petitioner contended that once a violation has been "excused" b y the state official, that decision coul d preclude enforcement by the EPA or citizens in violation of the CAA.

137 Petition at 67 - 69.

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Page 220 of 339 Second, the Petitioner objected to a provision that excludes excess visible emissions from the requirement that the state automatically issue a notice of violation for all excess emiss ions ( Tenn. C omp. R. & Regs. 1200 - 3 - 5 - .02(1)). This provision states that " due allowance may

be made for visible emissions in excess of that permitted in this chapter which are necessary or unavoidable due to routine st artup and shutdown conditions." The P etitioner argued that Tenn. C omp. R. & Regs. 1200 - 3 - 5 - .02(1) is inconsistent with EPA's interpretation of the CAA because it operates as a blanket exemption for opacity

violations. b. The EPA ' s Evaluation While the Petitioner suggested that Tenn. Comp. R. & Regs. 1200 - 3 - 20 - .07(1) and Tenn. C omp. R. & Regs. 1200 - 3 - 20 - .07(3) combine to operate as an impermissible discretionary

exemption, the EPA believes that these provisions are better understood as attempting to provide the state agency with the discreti on to decide whether to pursue an enforcement action. A s discussed more full y in section IX.A of this notice, the EPA ' s SSM Policy

has consistently

encouraged states to utilize traditional enforcement discretion within appropriate bounds for violations rel ating to excess emissions that occur during SSM events. Moreover, the 1982 SSM Guidance explicitly recommended criteria that states might consider in the event that they elected to formalize their enforcement discretion with provisions in the SIP. However, such enforcement discretion provisions in a SIP must be " state - onl y, " meaning that the provisions apply onl y to the state ' s own enforcement personnel and not to the EPA or to others. Here, the Tennessee SIP goes too far because a court could reasonabl y co nclude that the provision s in question preclude the

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Page 221 of 339 EPA and the public from enforcing against violations that occur during SSM events if the state official chooses to "excuse" such violations . Therefore, the EPA ultimately agrees with the Petitioner that T enn. Comp. R. & Regs. 1200 - 3 - 20 - .07(1) and Tenn. C omp. R. & Regs. 1200 - 3 - 20 - .07(3) are substantially inadequate to satisfy

CAA requirements. In regard to Tenn. C omp. R. & Regs. 1200 - 3 - 5 - .02(1), the EPA agrees with the Petitioner that this provision operat es as an impermissible discretionary exemption because it allows a state official to excuse excess visible emissions after giving "due allowance" to the fact that they were emitted during startup or shutdown events. The EPA believes that this provision is impermissible because it creates unbounded discretion that purports to make a state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation of otherwise applicable SIP emission limitations . More importantly , the provision purport s to authorize the state official to create exempt ions from applicable SIP emission limitations when such exemptions are impermissible in the first instance. As discussed in more detail in s ection VII . A of this notice , these ty pes of director ' s discretion provisions undermine the purpose of emission limitations and the reductions they

are intended to achieve, thereb y rendering them less enforceable b y the EPA or through a citizen suit . The EPA believes that the inclusion of such a dire ctor's discretion provision in Tenn. C omp. R. & Regs. 1200 - 3 - 5 - .02(1) is therefore a substantial inadequacy

that renders the provision impermissible under the CAA. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to Tenn. Comp. R. & Regs. 1200 - 3 - 20 - .07(1) and Tenn. C omp. R. & Regs. 1200 - 3 - 20 - .07(3) . These enforcement

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Page 222 of 339 discretion provision s could reasonabl y be interpreted to preclud e EPA and citizen enforcement of applicable SIP emission limitations, in violation of CAA sections 11 0(a)(2)(A), 110(a)(2)(C), and 302(k). The EPA also proposes to grant the Petition with respect to Tenn. C omp. R. & Regs. 1200 - 3 - 5 - .02(1). T he discretion created by this provision allow s for revisions of the applicable SIP emission limitations without meeti ng the applicable SIP revision requirements of the CAA, and it allows case - b y - case exemptions from emission limitations when such exemptions are not permissible in the first instance. Thus, this provision is also inconsistent with CAA sections 110(a)(2)(A) , 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that these provisions are substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to these provisions . 11. Tennessee: Knox County a. Petitioner ' s Anal ys is The Petitioner objected to a provision in the Knox County portion of the Tennessee SIP that bars evidence of a violation of SIP emission limitations from being used in a citizen enforcement action ( Knox County Regulation 32.1(C)). 138 T he provision specifies that " [a] determination that there has been a violation of these regulations or orders issued pursuant thereto shall not be used in any law suit brought by

any private citizen. " The Petitioner argued that this provision would prevent reports of SSM conditions, which owners and operators are required to submit per Knox County

138 Petition at 69.

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Page 223 of 339 Regulation 34.1(A), from being used as evidence in citizen suits, thereby undermining the express authorization of citizen enforcement actions under the CAA . b. The EPA ' s Evaluation The EPA agrees with the Petitioner that Knox County Regulation 32.1(C) is inconsistent with the fundamental requirements of the CAA. Section 113(e)(1) of the CAA requires a court to take into consideration "the duration of the violati on as established by

any credible evidence" in determining penalties in citizen enforcement actions. Moreover, section 114(c) of the CAA states that "[a]ny records, reports or information" obtained from sources "shall be available to the public . . . ." In accordance with these statutory

mandates, the EPA promulgated its "credible evidence rule" in 1997. That rule states: "[f]or purpose of . . . establishing whether or not a person has violated or is in violation of any

standard . . . , the [SI P] must not p reclude the use, including the exclusive use, of an y credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements . . ." 139 The EPA believes that the Knox County Regulation 32.1(C) runs afoul of these statutory and regulatory

provisions. Knox County Regulation 32.1(c) explicitly bar s a state official' s determination that there has been a violation of a SIP emission limitation from being used as evidence in a citizen enforcement action , even though SI Ps are prohibited from precluding the use of such evidence. The provision could also be interpreted to bar citizens from using evidence of a violation used by the state official in 139 51 CFR 31.212(c); see also " Credible Evidence Revisions, " 62 FR 8155 at 8314 (Feb. 24, 1997).

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Page 224 of 339 making such a determination, including reports of SSM conditions. Consequ ently , Knox County Regulation 32.1(C) is inconsistent with the fundamental requirements of CAA sections 113(e)(1) and 114(c) and the credible evidence rule. Moreover, b y s eeking to restrain the abilit y of private citizens to pursue enforcement actions, the provision is inconsistent with the fundamental enforcement structure created b y Congress in CAA section 304 . As such, the EPA believes that the Knox County Regulation 32.1(C) constitutes a substantial inadequacy in the Tennessee SIP. c. The EPA ' s Proposa l The EPA proposes to grant the Petition with respect to Knox County Regulation 32.1(C). This provision precludes the use of a state determination that a violation has occurred from being used as evidence in a citizen enforcement action, in violation of C AA sections 113(e)(1), 114(c), and 304, and the credible evidence rule. Therefore , the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to this provision in the Knox County portion of the state's SIP. 12. Tennessee: Shelb y County a. Petitioner ' s Anal ys is The Petitioner objected to a provision in the Shelby Count y Code ( Shelby

County Code § 16 - 87 ) that addresses enforcement for excess emissions that occur during "malfunctions, startups, and shutdowns" b y incorporating b y reference the state's

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Page 225 of 339 provisions in Tenn. Comp. R. & Regs. 1200 - 3 - 20 . 140 Shelby County Code § 16 - 87 provides that " all such additions, deletions, changes and amendments as may subsequently

be made" to Tennessee's regulations will automatically become part of the Shelby County Code. The Petitioner argued that once Tennessee changes its regulations, those revised provisions will be effective in the Shelby Count y Code but wi ll not be effective as part of the SIP until they are submitted to the EPA and approv ed. b. The EPA ' s Evaluation The EPA agrees that because Shelby County Code § 16 - 87 incorporates b y reference provisions in the Tennessee SIP that are substantially inade quate, the Shelby County portion of the Tennessee SIP is likewise substantially inadequate to satisfy

the fundamental requirements of the CAA for the same reasons. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to Shelby County Code § 16 - 87 . For the same reasons that the EPA has determined that the Tennessee SIP is substantially inadequate to meet CAA requirements , the EPA believes that the Shelby County portion of the Tennessee SIP is substantially inadequate as well. Therefore , the EPA proposes to issue a SI P c all with respect to this provision in the Shelby Count y portion of the state's SIP. F. Affected States in EPA Region V 1. Illinois

140 Petition at 69 - 70.

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Page 226 of 339 a. Petitioner's Anal ys is The Petitioner objected to three generall y applicable provisi ons in the I llinois SIP which together have the effect of providing discretionary exemptions from otherwise applicable SIP emission limitations, and such exemptions are impermissible under the CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. 141 , 142 The Petitioner noted that the provisions invite sources to request, during the permitting process, advance permission to continue to operate during a malfunction or breakdown, and, similarly to request advance permission to "violate" otherwise applicable emission limitations during startup (Ill. Admin. Code tit. 35 § 201.261). The I llinois SIP provisions establish criteria that a state official must consider before granti ng the advance permission to violate the emission limitations (I ll. Admin. Code tit. 35 § 201.262). However, the Petitioner asserted, the provisions state that, once granted, the advance permission to violate the emission limitations "shall be a prima faci e defense to an enforcement action" (Ill. Admin. Code tit. 35 § 201.265). The Petitioner noted that Illinois has claimed that its SIP provisions do not provide for advance permission to violate emission limitations but that its SIP provisions 141 The EPA notes that the Petitioner also identified several additional pollutant - specific and source category - specific provisions in the I llinois SIP that it alleged are inconsistent wi th the CAA and the EPA's SSM Policy . However, the Petitioner did not request that the EPA address those SIP provisions in its remedy request, and thus the EPA is not addressing those provisions in this action. The EPA may elect to evaluate those provisions in a later action. 142 Petition at 33 - 36.

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Page 227 of 339 instead auth orize "case - by - case claims of exemption." 143 The Petitioner argued that despite this explanation, the language in the SIP is not clear and appears to grant advance permission for violations during malfunction and startup events. Furthermore, the Petitioner o bjected because the effect of granting that permission would be to provide the source with an absolute defense to an y later enforcement action, that is, "a defense [would] attach[] at the state's discretion." The Petitioner argued that this approach would violate the fundamental requirement that all excess emissions be considered violations. Finally , the Petitioner objected to the use of the term "prima facie defense" in I ll. Admin. Code tit. 35 § 201.265, arguing that the term is "ambiguous in its operati on." The Petitioner argued that the provision is not clear regarding whether the defense is to be evaluated "in a judicial or administrative proceeding or whether the Agency determines its availability ." Allowing defenses to be raised in these undefined co ntexts, the Petitioner argued, is "inconsistent with the enforcement structure of the Clean Air Act." The Petitioner asserted that "if . . . the "prima facie defense" is any thing short of the "affirmative defense" as contemplated in the 1999 SSM Guidance, then "it clearl y has the potential to interfere with EPA and citizen enforcement." b. The EPA's Evaluation The EPA agrees that the CAA does not allow for discretionary exemptions from otherwise applicable SIP emission limitations. In accordance with the requirements of 143 Petition at 35 (citing I ll. Envtl. Prot. Agency , Statement of Basis for a Planned Revision of the CAAPP Permit for U.S. Steel Corp. Granite City Works (Mar. 15, 2011), at 26 - 27). The EPA notes that the Petitione r appears to have cited the incorrect portion of this document and that the correct citation is to pages 36 - 37.

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Page 228 of 339 CAA section 110(a)(2)(A), SI Ps must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exe rcise its enforcement discretion. The EPA agrees that together Ill. Admin. Code tit. 35 § 201.261, I ll. Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 144 can be read to create exemptions by authorizing a state official to determine in the permitting process that the excess emissions during startup and malfunction will not be considered violations of the applicable emission limitations. The language of the SIP on its face appears to permit the state official to grant advance permission t o "continue to operate during a malfunction or breakdown" or "to violate the standards or limitations . . . during startup" ( Ill. Admin. Code tit. 35 § 201.261(a)). The EPA notes that the Petitioner's characterization of I llinois's interpretation of its S IP is not accurate. While the Petitioner alleged that I llinois believed its SIP provisions to authorize "case - by - case exemptions," Illinois in fact described the effect of the permission granted under these provisions as providing the source with the:

... opportunity

to make a claim of malfunction/breakdown or startup, with the viability

of such claim subject to specific review against the requisite requirements. Indeed, 35 IAC 201.265 clearly states that violating an 144 The EPA notes that there are a number of other provisions in the same portion of the Illinois SIP that are integral to the regulation of star tups, shutdowns, and malfunctions. Those provisions include I ll. Admin. Code tit. 35 § 201.149, I ll. Admin. Code tit. 35 § 201.263, and Ill. Admin. Code tit. 35 § 201.264. The Petitioner did not object to these provisions in its P etition, but because they are part of a functional scheme in the SIP, the state may elect to revise these provisions in accordance with the EPA ' s proposal.

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Page 229 of 339 applicable state standard even if consi stent with any expression of authority regarding malfunction/breakdown or startup set forth in a permit shall only constitute a prima facie defense to an enforcement action for violation of said regulation. (I ll. Envtl. Prot. Agency , Statement of Basis fo r a Planned Revision of the CAAPP Permit for U.S. Steel Corp. Granite City Works (March 15, 2011), at 37.) Thus, the state claimed that under its SIP provisions, any excess emissions during periods of startup or malfunction would still constitute a "violat ion" and that the only effect of the permission granted b y the state official in the permit would be to allow a source to assert a "prima facie defense" in an enforcement action. Even in light of this explanation, the EPA agrees that the plain language of the SIP provisions do not make explicit this limitation on the state official's authorization to grant exemptions. Indeed, by expressl y granting "permission," the provisions are ambiguous and could be read as allowing the state official to be the unilatera l arbiter of whether the excess emissions in a given malfunction, breakdown, or startup event constitute a violation. By deciding that an exceedance of the emission limitation was not a "violation," exercise of this discretion could preclude enforcement by the EPA or through a citizen suit . Most importantly , however, the grant of permission would authorize the state official to create an exemption from the otherwise applicable SIP emission limitation, and such an exemption is impermissible in the first inst ance. Such a director's discretion provision undermines the emission limitations and the emission reductions they are intended to achieve and renders them less enforceable b y EPA or through a citizen suit . The EPA believes that the inclusion of director's discretion provisions in Il l. Admin. Code tit. 35 § 201.261, I ll.

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Page 230 of 339 Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 is thus a substantial inadequacy

and renders these specific SIP prov isions impermissible for this reason. Furthermore, even if the Illinois SI P provisions cited by the Petitioner are intended to provide only

an affirmative defense to enforcement, rather than as advance permission to violate the otherwise applicable SIP em ission limitations, the EPA agrees that the " prima facie defense " mechanism in I ll. Admin. Code tit. 35 § 201.261, I ll. Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 is not an acceptable affirmative defense provision under the CAA a s interpreted in the EPA's SSM Policy . Although the EPA believes that narrowl y drawn affirmative defenses are permitted for malfunction events (see section VII. B of this notice ) , the EPA ' s interpretation of the CAA is that such affirmative defenses can onl y shield the source from monetary

penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar an y enforcement action for injunctive relief for violations of emission limitations is inconsistent with the require ments of CAA sections 113 and 304. Inaddition, I llinois's SIP provisions allow sources to obtain a prima facie defense for violations that occurred during startup periods, and, as discussed in section VII.C of this notice, th e EPA does not believe affirmative defenses for violations of the otherwise applicable SIP emission limitations that occur during startup or shutdown periods is permissible under the CAA. Significantl y , the se Illinois SIP provision s are also deficient because, although not defined in the Illinois SIP, a prima facie defense typically would shift the burden of proof

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Page 231 of 339 to the opposing part y, in this case the part y bringing the enforcement action against the source. The EPA's longstanding interpretation of the CAA is that an affirmative defe nse provision must be narrowly drawn and must require the source to establish that it has met the conditions to justify

relief from monetary

penalties for excess emissions in a given event. Thus, an acceptable affirmative defense under EPA's interpretation of the CAA places the burden on the source to demonstrate that it has met all the appropriate criteria before it is entitled to the defense. Lastl y, the criteria that the I llinois SIP provisions require be met before advance permission and the prima faci e defense may be granted are not consistent with the criteria that the EPA recommends in the SSM Policy . The EPA acknowledges that the SSM Policy is only guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA . Nonetheless , through this rulemaking , the EPA is proposing to determine that Il l. Admin. Code tit. 35 § 201.261, I ll. Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 do not include criteria that are sufficiently

robust to qualify

as an acceptable affirmative defense provision. The EPA believes that the i nclusion of the complete bar to liability , including injunctive relief, the availability

of the defense for violations during startup and shutdown, the burden - shifting effect, and the insufficiently robust qualifying criteria in I ll. Admin. Code tit. 35 § 201.261, I ll. Admin. Code tit. 35 § 201.262, and I ll. Admin. Code tit. 35 § 201.265 , are substantial inadequacies and render these specific SIP provision s impermissible. c. The EPA's Proposal The EPA proposes to grant the Petition with respec t to I ll. Admin. Code tit. 35 §

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Page 232 of 339 201.261, I ll. Admin. Code tit. 35 § 201.262, and I ll. Admin . Code tit. 35 § 201.265 . The EPA believes that these provisions allow for exemptions from the otherwise applicable emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. In additi on, Il l. Admin. Code tit. 35 § 201.261, I ll. Admin. Code tit. 35 § 201.262, and I ll. Admin. Code tit. 35 § 201.265 potentially allow for such an exemption through a state official's unilateral exercise of discretionary authority , and such provisions are in consistent with the fundamental requirements of the CAA with respect to SIPs and SI P revisions in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that Il l. Admin. Code tit. 35 § 201.261, I ll. Admin. Code tit . 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 are substantiall y inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to these provisions. The EPA is proposing to grant the Petition with respect to these provisio ns even though the state has stated that the effect of these provisions only provides sources with a prima facie defense in an enforcement proceeding. I llinois's SIP provisions do not constitute an affirmative defense provision consistent with the EPA's re commendations in the EPA's SSM Policy

interpreting the CAA, for a number of reasons: it is not clear that the defense applies onl y to monetary penalties, which is inconsistent with the requirements of CAA sections 113 and 304; the defense applies to violat ions that occurred during startup periods, which is inconsistent with CAA sections 113 and 304; the provisions shift the burden of proof to the enforcing part y ; and finally , the provisions do not include sufficient criteria to assure that sources seeking t o raise the affirmative

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Page 233 of 339 defense have in fact been properl y designed, maintained, and operated, and to assure that sources have taken all appropriate steps to minimize excess emissions. Accordingl y, even if Il l. Admin. Code tit. 35 § 201.261, I ll. Admin. Co de tit. 35 § 201.262, and I ll. Admin. Code tit. 35 § 201.265 are interpreted to provide a defense to enforcement rather than an exemption, the EPA is proposing to find that the provisions are substantially inadequate to meet CAA requirements and thus propo sing to issue a SIP call with respect to these provisions. 2. Indiana a. Petitioner's Anal ys is The Petitioner objected to a generally applicable provision in the Indiana SIP that allows for discretionary

exemptions during malfunctions (326 Ind. Admin. C ode 1 - 6 - 4(a)). 145 , 146 The Petitioner objected to the provision because it provides an exemption from the otherwise applicable SIP emission limitations, and such exemptions are impermissible under the CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy

require that all such excess emissions be treated as violations. The Petitioner noted that the provision is ambiguous because it states that excess emissions during malfunction periods "shall not be considered a violation" if the sour ce 145 The EPA notes that the Petitioner also identified several additional pollutant - specific and source category - specific provis ions in the Indiana SIP that it alleged are inconsistent with the CAA and the EPA's SSM Policy . However, the Petitioner did not request that the EPA address those SIP provisions in its remedy request, and thus the EPA is not addressing those provisions in this action. The EPA may elect to evaluate those provisions in a later action. 146 Petition at 36 - 37.

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Page 234 of 339 demonstrates that a number of conditions are met (326 Ind. Admin. Code 1 - 6 - 4(a)), but the provision does not specify to whom or in what forum such demonstration must be made. If made in a showing to the state, the Petitioner argued, the provision would give a state official the sole authority to determine that the excess emissions were not a violation and could thus be read to preclude enforcement b y the EPA or citizens in the event that the state official elects not to treat the excess emissions as a vi olation. Thus, in addition to creating an impermissible exemption for the excess emissions, the Petitioner argued that the SIP' s provision is also inconsistent with the CAA as interpreted in the EPA's SSM Policy because it allows the state official to make a unilateral decision that the excess emissions were not a violation and thus bar enforcement for the excess emissions by the EPA and citizens. Alternativel y, the Petitioner noted, if the demonstration was required to have been made in an enforcement context, the provision could be interpreted as providing an affirmative defense. The Petitioner argued that even if interpreted in this way, the provision is not permissible because it "appears to confuse an enforcement discretion approach with the affirmativ e defense approach." Furthermore, the Petitioner argued that 326 Ind. Admin. Code 1 - 6 - 4(a) is not an acceptable affirmative defense provision because it "could be interpreted to preclude EPA and citizen enforcement and shield sources from injunctive relief ." b. The EPA's Evaluation The EPA agrees that the CAA does not allow for discretionary exemptions from otherwise applicable SIP emission limitations. In accordance with the requirements of

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Page 235 of 339 CAA section 110(a)(2)(A), SI Ps must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether o r not the state elects to exercise its enforcement discretion. SIP provisions such as 326 Ind. Admin. Code 1 - 6 - 4(a) that can be interpreted to authorize a state official to determine unilaterall y that the excess emissions during malfunctions are not violat ions of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of a provision that allows discretionary

exemptions in the SIP is thus a substantial inadequacy and renders 326 Ind. Admin. Code 1 - 6 - 4(a) impermissible. The EPA believes that 326 Ind. Admin. Code 1 - 6 - 4(a) is also impermissible because the provision can be interpreted to make a state official the unilateral arbiter of whether the excess emissions in a given malfunction event constitute a violation. The 326 Ind. Admin. Code 1 - 6 - 4(a) provides that if a source demonstrates that four criteria are met, the excess emissions "shall not be considered a violation." Because the provi sion does not establish who is to evaluate whether the source has made an adequate demonstration, the provision could be read to authorize a state official to judge that violations have not occurred even though the emissions exceeded the applicable SIP emi ssion limitations. These provisions therefore appear to vest the state official with the unilateral power to grant exemptions from otherwise applicable SIP emission limitations, without any

additional public process at the state or federal level. By decidi ng that an

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Page 236 of 339 exceedance of the emission limitation was not a "violation," exercise of this discretion could preclude enforcement by the EPA or through a citizen suit . Most importantly , however, the provision could be read to authorize the state official to c reate an exemption from the otherwise applicable SIP emission limitation, and such an exemption is impermissible in the first instance. Such a director's discretion provision undermines the emission limitations and the emissions reductions they are intende d to achieve and renders them less enforceable b y EPA or through a citizen suit . The EPA believes that the inclusion of a director's discretion provision in 326 Ind. Admin. Code 1 - 6 - 4(a) is thus a substantial inadequacy

and renders these specific SIP provi sions impermissible for this reason. The EPA believes that even if 326 Ind. Admin. Code 1 - 6 - 4(a) is interpreted to allow the source to make the required demonstration only in the context of an enforcement proceeding, the conditions set forth in the provis ion do not render it an acceptable affirmative defense provision. Although the EPA believes that narrowl y drawn affirmative defenses are permitted under the CAA f or malfunction events (see section VII.B of this notice), the EPA ' s i nterpretation of the CAA is that such affirmative defenses can onl y shield the source from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar an y enforcement action for injunctive relief for violations of emission lim itations is inconsistent with the requirements of CAA sections 113 and 304. Furthermore, Indiana's SIP provision is deficient because even if it were interpreted to create an affirmative defense rather than an exemption from the applicable

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Page 237 of 339 emission limitations, it does so with conditions that are not consistent with the criteria that the EPA recommends in the SSM Policy . The EPA acknowledges that the SSM Policy is only guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is proposing to determine that 326 Ind. Admin. Code 1 - 6 - 4(a) does not include criteria that are sufficientl y robust to qualify as an acceptable affirmative defense provision under the CAA. The co nditions in the provision are helpful but are not consistent with all of the criteria recommended in the EPA's SSM Policy . For example, this provision does not contain criteria requiring the source to establish that the malfunction event was not foreseeabl e and not part of a recurring pattern indicative of inadequate design, operation, or maintenance. Indeed, the explicit limitation that the "malfunctions have not exceeded five percent (5%), as a guideline, of the normal operational time of the facility " su ggests that a source could be granted exemptions for excess emissions even though it was habitually violating the applicable emission limitations over some extended period of time. The EPA believes that the inclusion of the complete bar to liability , incl uding injunctive relief, and the insufficiently robust qualifying criteria render 326 Ind. Admin. Code 1 - 6 - 4(a) substantially inadequate to meet CAA requirements. Significantl y, the EPA notes that the correct meaning of 326 Ind. Admin. Code 1 - 6 - 4(a) has b een addressed in the past in conjunction with an interpretive letter from the state in 1984, which characterized the provision as an enforcement discretion provision applicable to state personnel rather than as a provision allowing exemptions from the

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Page 238 of 339 emis sion limitations. The EPA appreciates Indiana's clarification of its reading of the provision in the 1984 letter, but at this juncture, in the course of reevaluating this provision in light of the issues raised in the Petition, the EPA believes that 326 In d. Admin. Code 1 - 6 - 4(a) contains regulatory language that requires formal revision to eliminate significant ambiguities. For example, the provision states that: "[e]missions temporaril y exceeding the standards which are due to malfunctions . . . shall not be considered a violation of the rules provided the source demonstrates" four criteria. Indiana has acknowledged that it reads these provisions not to bar enforcement by the EPA or citizens in the event that the state does not pursue enforcement, but the E PA believes that the provision is sufficiently ambiguous on this point that a revision is necessary to ensure that outcome in the event of an enforcement action. As discusse d in section VI of this notice, th e EPA believes that in some instances it is appr opriate to clarify provisions of a SIP submission through the use of interpretive letters. However, in some cases, there may be areas of regulatory ambiguity

in a SIP provision that are significant and for which resolution is both appropriate and necessary . Because the text of 326 Ind. Admin. Code 1 - 6 - 4(a) provision is not clear on its face that it is limited to the exercise of enforcement discretion by state personnel but rather could be interpreted as a discretionary exemption from the otherwise applicable SI P emission limitations or as an inadequate affirmative defense provision, the EPA believes this SIP provision is substant ially inadequate to meet CAA requirements. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to 326 Ind. Admin. Code 1 - 6 -

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Page 239 of 339 4(a) . The EPA believes that this provision appears on its face to allow for discretionary exemptions from oth erwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). This provision allows for ex emptions through a state official's unilateral exercise of discretionary authority that includes no additional public process at the state or federal level, and such provisions are inconsistent with the fundamental requirements of the CAA with respect to S IP s and SIP revisions. Moreover, the discretion created by this provision allows case by - case exemptions from emission limitations when such exemptions are not permissible in the first instance. E ven if the EPA were to interpret 326 Ind. Admin. Code 1 - 6 - 4 (a) to be an affirmative defense applicable in an enforcement context, the provision is not consistent with the EPA's recommendations in the EPA's SSM Policy interpreting the CAA. By purporting to create a bar to enforcement that applies not just to monetary penalties but also to injunctive relief, and by including criteria inconsistent with those recommended by the EPA for affirmative defense provisions, this provision is inconsistent with the requirements of CAA sections 113 and 304. For these reasons, th e EPA is proposing to find that 326 Ind. Admin. Code 1 - 6 - 4(a) is substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to this provision. 3. Michigan a. Petitioner's Anal ys is The Petitioner objected to a generally applicable provision in Michigan's SI P that

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Page 240 of 339 provides for an affirmative defense to monetary penalties for violations of otherwise applicable SIP emission limitations during periods of startup and shutdown. 147 The Petitioner argued that affirmative defenses for excess emissions are inconsistent with the CAA and requested that the provision be removed from Michigan's SIP. Alternativel y, if such a provision were to remain in the SIP, the Petitioner asked that the SI P be amended to address two deficienc ies. First, the Petitioner objected to one of the criteria in the affirmative defense provision, Mich. Admin. Code r. 336.1916, which makes the defense available to a single source or small group of sources as long as such source did not "cause[] an excee dance of the national ambient air quality standards or an y applicable prevention of significant deterioration increment." The Petitioner argued that this criterion of Michigan's affirmative defense provision is contrary to the EPA's SSM Policy because "[s] ources with the potential to cause an exceedance should be more strictl y controlled at all times and should not be able to mire enforcement proceedings in the difficult empirical questions of whether or not the NAAQS or PSD increments were exceeded as a matter of fact" (emphasis in original). Second, the Petitioner objected to the availabilit y of Michigan's affirmative defense provision, Mich. Admin. Code r. 336.1916, for violations of "an applicable emission limitation," which Petitioner pointed out would include "limits derived from federally promulgated technology based standards, such as NSPSs and NESHAPs." The

147 Petition at 44 - 46.

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Page 241 of 339 Petitioner argued that according to the EPA's SSM Policy , sources should not be able to seek an affirmative defense for violations of these fede ral technology - based standards. b. The EPA's Evaluation As discussed in more d etail in section IV.B of this notice, the EPA doe s not agree with the Petitioner that affirmative defenses should never be permissible in SI Ps. The EPA believes that narrowly drawn affirmative defenses can be permitted under the CAA for malfunction events, because where excess emissions are entirel y be yond the control of the owner or operator of the source, it can be appropriate to provide limited relief to claims for monetary p enalties (see section VII.B of this notice). However, as discussed in section IV.B of this notice, this basis fo r permitting affirmative defenses for malfunctions does not translate to planned events such as startup and shutdown. By definition, the owner o r operator of a source can foresee and plan for startup and shutdown events, and therefore the EPA believes that states should be able to establish, and sources should be able to comply

with, the applicable emission limitations or other controls measures d uring these periods of time. A source can be designed, operated, and maintained to control and to minimize emissions during such normal expected events. If sources in fact cannot meet the otherwise applicable emission limitations during planned events such as startup and shutdown, then a state may elect to develop specific alternative requirements that apply during such periods, so long as they meet other applicable CAA requirements. The EPA believes that the inclusion of an affirmative defense that applies only to violations that occurred during periods of startup and shutdown in Mich. Admin. Code r. 336.1916 is thus a substantial inadequacy and renders this specific SIP provision

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Page 242 of 339 impermissible. The EPA does not agree with the Petitioner that affirmative d efense provisions are, per se , impermissible for a "single source or small group of sources." The EPA believes that a SIP provision may meet the overarching statutory requirements through a demonstration by

the source that the excess emissions during the S SM event did not in fact cause a violation of the NAAQS. As discu ssed in section VII B of this notice, the EPA considers this another means b y which to assure that affirmative defense provisions are narrowl y drawn to justify relief from monetary

penalties for excess emissions during malfunction events. Through this alternative approach, sources also have an incentive to comply with applicable emission limitations and thereb y to support the larger objective of attaining and maintaining the NAAQS. The EPA do es agree that an approvable affirmative defense provision, consistent with CAA requirements, cannot appl y to an y federal emission limitations approved into a SIP. Thus, if the state has elected to incorporate NSPS or NESHAP into its SI P for any purpose, su ch as to obtain credit for the resulting emissions reductions as part of an attainment plan, the SIP cannot have a provision that would extend any affirmative defense to sources bey ond what is otherwise provided in the underl yi ng federal regulation. To the extent that any affirmative defense is warranted during malfunctions for these technology - based standards, the federal standards contained in the EPA's regulations alread y specify the appropriate affirmative defense. No additional or different affirmative defense provision applicable through a SIP provision is warranted or appropriate. On its face, Mich. Admin. Code r. 336.1916 does not explicitly limit its

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Page 243 of 339 scope to exclude federal emission limitations approved into the SIP. Thus, this would be an addition al way

in which the provision is substantially inadequate to meet CAA requirements. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to Mich. Admin. Code r. 336.1916, which provides for an affirmative defense to violations of applicable emission limitations during startup and shutdown events. The availability of an affirmative defense for excess emissions that occur during planned events is contrary to the EPA ' s interpretation of the CAA to allow such affirmative defenses onl y for events bey ond the control of the source, i.e. , during malfunctions. For this reason , the EPA is proposing to find that Mich. Admin. Code r. 336.1916 is substantially inad equate to meet CAA requirements and thus proposing to issue a SI P c all with respec t to this provision. 4. Minnesota a. Petitioner's Anal ys is The Petitioner objected to a provision in the Minnesota SIP that provides automatic exemptions for excess emissions resulting from flared gas at petroleum refineries when those flares are caused by startup, shutdown, or malfunction (Minn. R. 7011.1415). 148 The provision states that: "The combustion of process upset gas in a flare, or the combustion in a flare of process gas or fuel gas which is released to the flare as a result of relief valve leak age is exempt from the standards of performance set forth in this

148 Petition at 46 - 47.

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Page 244 of 339 regulation." The Petitioner noted that "process upset gas" is defined in the regulation as "an y gas generated b y a petroleum refinery process unit as a result of start - up, shutdown, upset, o r malfunction" (Minn. R. 7011.1400(12)). The Petitioner argued that such an automatic exemption for emissions during startup, shutdown, or malfunction in a SIP provision is a violation of the fundamental requirements of the CAA as interpreted in the EPA's SSM Policy

that all excess emissions be considered violations, and that such an exemption interferes with enforcement b y the EPA and citizens. b. The EPA's Evaluation The EPA agrees that the CAA does not allow for automatic exemptions from otherwise appl icable SIP emission limitations and requirements. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations of such limitations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunction are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The automatic exemption provision identified by the Petitioner explicitly

states that "process upset gas," which is defined as gas generated by the affected sources as a result of start - up, shutdown, upset, or malfunction, "is exempt from the standards" (Minn. R. 7011.1415). Any

exceedances of the standards during those periods would therefore

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Page 245 of 339 not be considered a violation under this provision. With respect to the Petitioner's concern that these exemptions could interfere with enforcement b y the EPA or citizens, the EPA agrees that this is one of the critical reasons why such provisions are impermissible under the CAA. By having SIP provisions that define what would otherwise be violations of the applicable emission limitations as non - violations, the state has effectivel y negated the ability of the EPA or the public to enforce against those violations. The EPA believes that the inclusion of such automatic exemptions from SIP requirements in Minn. R. 7011.1415 is thus a substantial inadequacy and renders this specific SIP provision impermissible. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to Minn. R. 7011.1415. The EPA believes that this provision allows for automatic exemptions from the otherwise applicable SIP emission limitations and requirements, and that such e xemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by

creating these impermissible exemptions, the state has defi ned violations in a way that would interfere with effective enforcement by the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find that Minn. R. 7011.1415 is sub stantially inadequate to meet CAA requirements and thus is proposing to issue a SIP call with respect to this provision. 5. Ohio

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Page 246 of 339 a. Petitioner's Anal ys is The Petitioner first objected to a generally applicable provision in the Ohio SIP that allows for d iscretionary exemptions during periods of scheduled maintenance (Ohio Admin. Code 3745 - 15 - 06(A)(3)). 149 The provision provides the state official with the authority to permit continued operation of a source during scheduled maintenance "where a complete sour ce shutdown may result in damage to the air pollution sources or is otherwise impossible or impractical." Upon application, the state official "shall authorize the shutdown of the air pollution control equipment if, in his judgment, the situation justifies continued operation of the sources." The Petitioner also objected to two source category - specific and pollutant - specific provisions that provide for discretionary exemptions during malfunctions ( Ohio Admin. Code 3745 - 17 - 07(A)(3)(c) and Ohio Admin. Code 37 45 - 17 - 07(B)(11)(f)). 150 The Petitioner argued that these provisions could provide exemptions from the otherwise applicable SIP emission limitations, and such exemptions are impermissible under the CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy require that all such excess emissions be treated as violations. Moreover, the 149 Petition at 60 - 61. 150 The EPA notes that Petitioner did not categorize these provisions as discretionary exe mptions, but both Ohio Admin. Code 3745 - 17 - 07(A)(3)(c) and Ohio Admin. Code 3745 - 17 - 07(B)(11)(f) provide for exemptions during malfunctions if sources have complied with Ohio Admin. Code 3745 - 15 - 06(C), which allows the director to " evaluate " malfunction reports required b y the rule and to " take appropriate action upon a determination. " The EPA therefore believes that the mechanism by which exemptions are granted under Ohio Admin. Code 3745 - 17 - 07(A)(3)(c) and Ohio Admin. Code 3745 - 17 - 07(B)(11) (f) is by

exercise of the state director ' s discretion.

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Page 247 of 339 Petitioner objected to these discretionary exemptions because the state official's grant of permission to continue to operate during the period of maintena nce, or to exempt sources from otherwise applicable SIP emission limitations during malfunctions, could be interpreted to excuse excess emissions during such time periods and could thus be read to preclude enforcement b y the EPA or citizens in the event th at the state official elects not to treat the events as violations. Thus, in addition to creating an impermissible exemption for the excess emissions, the Petitioner argued, the provisions are also inconsistent with the CAA as interpreted in the EPA's SSM Policy because they

allow the state official to make a unilateral decision that the excess emissions were not a violation and thus bar enforcement for the excess emissions by the EPA and citizens. The Petitioner also objected to a source category - specific provision in the Ohio SIP that allows for an automatic exemption from applicable emission limitations and requirements during periods of startup, shutdown, malfunction, or regularly scheduled maintenance activities ( Ohio Admin. Code 3745 - 14 - 11(D)) . The Pe titioner objected because this provision provides an exemption from the otherwise applicable SIP requirements, and such exemptions are inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all excess emissions be treated as violations. The Petitioner also objected to this provision because, b y providing an outright exemption from otherwise applicable requirements, the state has defined these excess emissions as not violations, thereby precluding enforcement by the EPA or citizens for the excess emissions that would otherwise be violations.

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Page 248 of 339 Finally , the Petitioner objected to provision s that contain exemptions for H ospital /M edical/ Infectious W aste Incinerator (HMIWI ) sources during startup, shutdown, and malfunction ( Ohio Admin. Code 3745 - 75 - 02(E), Ohio Admin. Code 3745 - 75 - 02(J), Ohio Admin. Code 3745 - 75 - 03(I), Ohio Admin. Code 3745 - 75 - 04(K), Ohio Admin. Code 3745 - 75 - 04(L) ). The Petitioner requested that these exemptions be removed entirely

from Ohio' s SIP. b. The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations through the exercise of a state of ficial's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuou s. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that excess emissions duri ng startup, shutdown, malfunctions, or maintenance are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of such exemptions from the emission limitations in Ohio Admin. Code 3745 - 15 - 06(A)(3), Ohio Admin. Code 3745 - 17 - 07(A)(3)(c), Ohio Admin. Code 3745 - 17 - 07(B)(11)(f), and Ohio Admin. Code 3745 - 15 - 06(C) is thus a substantial inadequacy and renders these specific SI P provisions impermissible.

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Page 249 of 339 The EPA believes that Ohio Admin. Code 3745 - 15 - 06(A)(3), Ohio Admin. Code 3745 - 17 - 07(A)(3)(c), Ohio Admin. Code 3745 - 17 - 07(B)(11)(f), and Ohio Admin. Code 3745 - 15 - 06(C) are also impermissible as unbounded director's discretion provisions that make a state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation. In the case of Ohio Admin. Code 3745 - 15 - 06(A)(3) , the provision authorizes the state official to allow continued operation at sources "during scheduled maintenance of air pollution control equipment." T he state official's grant of permission to continue to operate during the period of maintenance could be interpreted t o excuse excess emissions during that period and could thus be read to preclude enforcement b y the EPA or through a citizen suit in the event that the state official elects not to treat the excess emissions as a violation . In addition, the provision vests the state official with the unilateral power to grant an exemption from the otherwise applicable SIP emission limitations, without any additional public process at the state or federal level. Although the provision does require sources to submit a report i ndicating the expected length of the event and estimated quantities of emissions, among other things, ultimately

the state official makes his determination "if, in his judgment, the situation justifies continued operation of the sources." The state officia l' s discretion is therefore not sufficiently

bounded and extends to granting a complete exemption from applicable emission limitations that would be impermissible in the first instance. The EPA believes that Ohio Admin. Code 3745 - 17 - 07(A)(3)(c), which exe mpts sources from visible particulate matter limitations during malfunctions, and Ohio Admin. Code 3745 - 17 - 07(B)(11)(f), which exempts sources from fugitive dust limitations during

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Page 250 of 339 malfunctions, also impermissibly provide exemptions through exercise of a s tate official's discretion because the provisions authorize exemptions if the source has complied with Ohio Admin. Code 3745 - 15 - 06 (C). The Ohio Admin. Code 3745 - 15 - 06 (C) provides the state official with the discretion to "evaluate" reports of malfunctions submitted by sources and to "take appropriate action upon a determination" that sources have not adequatel y met the requirements of the provision. Although the Petitioner did not request that the EPA evaluate Ohio Admin. Code 3745 - 15 - 06 (C), it is the regul atory mechanism by which exemptions are granted in the two provisions to which the Petitioner did object. Similar to Ohio Admin. Code 3745 - 15 - 06(A)(3), which is the director's discretion provision discussed earlier in this section of the notice, the EPA fi nds that Ohio Admin. Code 3745 - 17 - 07(A)(3)(c) and Ohio Admin. Code 3745 - 17 - 07(B)(11)(f) could be interpreted to excuse excess emissions during malfunction events and could thus be read to preclude enforcement by the EPA or through a citizen suit in the eve nt that the state official elects not to treat the excess emissions as a violation . In addition, the provision vests the state official with the unilateral power to grant an exemption from otherwise applicable SIP emission limitations, without any addition al public process at the state or federal level. Although the provision does require the state official to consider the reports filed by sources before making a determination, the provision remains insufficiently bounded. Most importantly , however, these provisions all purport to authorize the state official to create exemptions from the emission limitations, and such exemptions are impermissible in the first instance. Such director's discretion provisions undermine the

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Page 251 of 339 emission limitations and the emissio ns reductions they are intended to achieve and render them less enforceable b y EPA or through a citizen suit . The EPA believes that the inclusion of an unbounded director's discretion provision in Ohio Admin. Code 3745 - 15 - 06(A)(3), Ohio Admin. Code 3745 - 17 - 07(A)(3)(c), Ohio Admin. Code 3745 - 17 - 07(B)(11)(f), and Ohio Admin. Code 3745 - 15 - 06(C) is thus a substantial inadequacy and renders these specific SIP provisions impermissible for this reason, in addition to the creation of impermissible exemptions. With regard to the Petitioner's objection to the exemption for portland cement kilns from otherwise applicable requirements at Ohio Admin. Code 3745 - 14 - 11(D), the EPA agrees that the CAA does not allow for automatic exemptions from otherwise applicable SIP emi ssion limitations and requirements. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations mu st be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations of such limitations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exempti ons such that the excess emissions during startup, shutdown, malfunction, or maintenance are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The automatic exemption provision in Oh io Admin. Code 3745 - 14 - 11(D) explicitly states that the regulation's requirement that the use of control measures such as low - NOx burners during the ozone season and monitoring, reporting, and recordkeeping

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Page 252 of 339 of ozone season NOx emissions "shall not apply " d uring periods of startup, shutdown, malfunction, and maintenance. The exemptions therefore provide that the excess emissions resulting from failure to run required control measures will not be violations, contrary to the requirements of the CAA. In additio n, exemption from monitoring, recordkeeping, and reporting requirements during these events affects the enforceability of the emission limitation in the SIP provision. Moreover, failure to account accuratel y for excess emissions at sources during SSM event s has a broader impact on NAAQS implementation and SIP planning, because such accounting directl y informs the development of emissions inventories and emissions modeling. With respect to the Petitioner's concern that these exemptions preclude enforcement b y the EPA or citizens, the EPA agrees that this is one of the critical reasons why such provisions are impermissible under the CAA. By having SIP provisions that define what would otherwise be violations of the applicable emission limitations as non - violat ions, the state has effectivel y negated the ability of the EPA or the public to enforce against those violations. The EPA believes that the inclusion of such automatic exemptions from SIP requirements in Ohio Admin. Code 3745 - 14 - 11(D) is thus substantially inadequate to meet CAA requirements. Finally , the EPA disagrees that the provisions providing exemptions for HMIWI must be removed from the SIP. Ohio Admin. Code 3745 - 75 - 02(E), Ohio Admin. Code 3745 - 75 - 02(J), Ohio Admin. Code 3745 - 75 - 03(I), Ohio Admin. Code 3745 - 75 - 04(K), and Ohio Admin. Code 3745 - 75 - 04(L) are not approved into Ohio's SIP, but rather those rules were approved as part of the separate state plan to meet the applicable emissions

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Page 253 of 339 guidelines under CAA § 111(d) and 40 CFR Part 60. Because th o s e rules are not in the Ohio SIP and are not related to any provisions in the SIP, they do not represent a substantial inadequacy

in the SIP. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to Ohio Admin. Code 3745 - 15 - 06(A)(3), O hio Admin. Code 3745 - 17 - 07(A)(3)(c), and Ohio Admin. Code 3745 - 17 - 07(B)(11)(f) . The EPA believes that these provisions allow for exemptions from the otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundament al requirements of the CAA with respect to emission limitations in SIPs. In addition, Ohio Admin. Code 3745 - 15 - 06(A)(3), Ohio Admin. Code 3745 - 17 - 07(A)(3)(c), Ohio Admin. Code 3745 - 17 - 07(B)(11)(f), and b y extension, Ohio Admin. Code 3745 - 15 - 06 (C), allow fo r such exemptions through a state official's unilateral exercise of discretionary

authority that is insufficiently

bounded and includes no additional public process at the state or federal level, and such provisions are inconsistent with the fundamental re quirements of the CAA with respect to SIPs and SIP revisions. Moreover, the discretion created b y these provisions allows case - by - case exemptions from emission limitations when such exemptions are not permissible in the first instance. As describe d in sect ion VII.A of this notice, suc h provisions are inconsistent with fundamental CAA requirements for SI P revisions. For these reasons, the EPA is proposing to find that Ohio Admin. Code 3745 - 15 - 06(A)(3), Ohio Admin. Code 3745 - 17 - 07(A)(3)(c), Ohio Admin. Code 3 745 - 17 - 07(B)(11)(f), and Ohio Admin. Code 3745 - 15 - 06 (C) are substantially inadequate to meet CAA requirements and thus is proposing to

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Page 254 of 339 issue a SIP call with respect to these provisions. The EPA also proposes to grant the Petition with respect to Ohio Admi n. Code 3745 - 14 - 11(D) . The EPA believes that this provision allows for automatic exemptions from the otherwise applicable SIP emission limitations and requirements, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the state has defined violations in a way

that would interfere with effective enforcement by the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and thus is proposing to issu e a SIP call with respect to this provision. The EPA proposes to deny the Petition with respect to Ohio Admin. Code 3745 - 75 - 02(E), Ohio Admin. Code 3745 - 75 - 02(J), Ohio Admin. Code 3745 - 75 - 03(I), Ohio Admin. Code 3745 - 75 - 04(K), and Ohio Admin. Code 3745 - 75 - 04(L) . These provisions are not part of the Ohio SIP and thus cannot represent a substantial inadequacy in the SIP. G. Affected States in EPA Region VI 1. Arkansas a. Petitioner ' s Anal ys is

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Page 255 of 339 The Petitioner objected to two provisions in the Arkansas SI P. 151 First, the Petitioner objected to a provision that provides an automatic exemption for excess emissions of volatile organic compounds ("VOC") for sources located in Pulaski County that occur due to malfunctions ( Reg. 19.1004(H) ) . The provision states that excess emissions "which are temporary and result solely from a sudden and unavoidable breakdown, malfunction or upset of process or emission control equipment, or sudden and unavoidable upset or operation will not be considered a violation . . . ." The P etitioner argued that this language is impermissible because the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all excess emissions be treated as violations. Second, the Petitioner objected to a separate provision that provide s a "complete affirmative defense" for excess emissions that occur during emergency conditions ( Reg. 19.602 ) . The Petitioner argued that this provision, which the state may have modeled after the EPA's title V regulations, is impermissible because its appl ication is not clearl y limited to operating permits. b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations. In accordance with CAA sections 110(a)(2)(A) and 151 Petition at 24. The Petitioner cites to 014 - 01 - 1 Ark. Code R. §§ 19.1004(H) and 19.602. The EPA interprets these citations as references to Reg. 19.1004(H) and Reg. 19.602 of the Arkansas Pollution Control & Ecology Commission (APC&EC), Regulation No. 19

– Regulations of the Arkansas Plan of Implementation for Air Pollution Control, as approved b y EPA on Apr. 12, 2007 (72 FR 18394) (hereinafter referred to as Reg. 19.1004(H) and Reg. 19.602).

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Page 256 of 339 302(k), SIPs must contain "emission limitations" and those limitations must be continuous. Thus, any

excess emissions above the level of the applicable SIP emission limitation must be considered a violation of such limitation, regardless of whether the state elects to exercise its enforcement discretion. SIP provisions that create exemptions from appl icable emission limitations during malfunctions or emergency conditions, however defined, are inconsistent with the fundamental requirements of the CAA. The first provision identified by the Petitioner explicitly

states that excess emissions of VOC "will not be considered a violation" of the applicable emission limitation if they

occur due to an "unavoidable breakdown" or "malfunction." This exemption in Reg. 19.1004(H) is impermissible even though the state has limited the exemption to unavoidable breakdo wns and malfunctions. The core problem remains that the provision provides an impermissible exemption from the otherwise applicable VOC emission limitations. Inaddition, by having a SIP provision that defines what would otherwise be violations of the appl icable emission limitations as non - violations, the state has effectivel y negated the ability of the EPA or the public to enforce against those violations. The EPA believes that the inclusion of such an automatic exemption in Reg. 19.1004(H) is thus a subst antial inadequacy and renders this SI P provision impermissible under the CAA. The second provision identified by the Petitioner defines " emergency " conditions that may cause a source to exceed a technology - based emission limit ation under a permit and prov ides a "complete affirmative defense " to an action brought for non - compliance with such limitations if certain criteria are met. The EPA believes that Reg. 19.602 is

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Page 257 of 339 substantially

inadequate for three reasons. First, the provision does not explicitly limit the affirmative defense to civil penalties. Although the EPA believes that narrowly drawn affirmative defenses are permitted under the CAA for malfunction events ( see s ection s IV .B and VII.B of this notice) , the EPA ' s interpretation of the CAA is that suc h affirmative defenses can only shield the source from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar any enforcement action for injunctive relief for violations of emission limitations is inconsistent with the requirements of CAA sections 113 and 304. Second, the provision does not contain elements for establishing the affirmative defense consistent with all of the recommended criteria in the EPA's SSM Policy for SIP provisions. The EPA ac knowledges that the SSM Policy is onl y guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA . Nonetheless , through this rulemaking , the EPA is proposing to determine that Reg. 19.602 does not include criteria that are sufficiently robust to qualify

as an acceptable affirmative defense provision. Finally , the provision can be read to provide additional defenses bey ond those alread y provided in federal technology - based standards. The EPA believes that approvable affirmative defenses in a SIP provision cannot operate to create different or additional defenses from those that are provided in underlying federal technology - based emission limitations, such as NSPS or NESHAP. For these reasons, the EPA believes that Re g. 19.602 is substantially inadequate to meet the fundamental requirements of the CAA. c. The EPA's Proposal

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Page 258 of 339 The EPA proposes to grant the Petition with respect to Reg. 19.1004(H) and Reg. 19.60 2 . The EPA believes that Reg. 19.1004(H) allows for an exemption from otherwise applicable SIP emission limitations and that such exemptions are inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). Additionally , the EPA believes that Reg. 19.60 2 is an impermissible affirmative defense provision because it does not explicitly limit the defense to monetary penalties, establishes criteria that are inconsistent with those in the EPA's SSM Policy, and can be read to create different or additional defen ses from those that are provided in underlying federal technology - based emission limitations. As a consequence, Reg. 19.60 2 is also inconsistent with CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reason s , the EPA is proposing to find that these provisions are substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to these provisions. 2. Louisiana a. Petitioner's Anal ys is The Petitioner objected to several provisions in the L ouisiana SIP that allow for automatic and discretionary exemptions from SI P emission limitations during various situations, including startup, shutdown, maintenance, and malfunctions. 152 First, the Petitioner objected to provisions that provide automatic exemptions for excess emis sions of VOC from wastewater tanks ( L AC 33 : III . 2153(B)(1)(i ) ) and excess emissions of NO x from certain sources within the Baton Rouge Nonattainment Area ( LAC

152 Peti tion at 42 - 43.

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Page 259 of 339 33:III. 2201(C)(8) ). 153 The LAC 33:III. 2153(B)(1)(i) provides that control devices "shall not be requ ired" to meet emission limitations "during periods of malfunction and maintenance on the devices for periods not to exceed 336 hours per ye ar." Similarly , LAC 33:III. 2201(C)(8) provides that certain sources "are exempted" from emission limitations "during start - up and shutdown . . . or during a malfunction." The Petitioners argued that these provisions are impermissible because the CAA and the EPA's interpretation of the CAA in the SSM Policy require that all excess emissions be treated as violations. Second, the Petitioner objected to provisions that provide discretionary exemptions to various emission limitations. 154 Three of these provisions provide discretionary

exemptions from otherwise applicable SO 2 and visible emission limitations in the L ouisiana SI P for excess emissions that occur during certain startup and shutdown

153 The EPA interprets the Petitioner’s reference to La. Adm. Code tit. 33, § III:2153(B)(1)(i) as a citation to LAC 33:III.2153(B)(1)(i), as approved b y the EPA on June 20, 2002 (67 FR 41840) (hereinafter referred to as LAC 33:III.2153(B)(1) (i)). Similarly , the EPA interprets the Petitioner’s reference to La. Adm. Code tit. 33, § III:2201(C)(8) as a citation to LAC 33:III.2201(C)(8), as approved by the EPA on July

5, 2011 (76 FR 38977) (hereinafter referred to as LAC 33:III.2201(C)(8)). 154 Th e EPA interprets the Petitioner’s reference to La. Adm. Code tit. 33, § III:1107 as a citation to LAC 33:III.1107(A), as approved b y the EPA on July 5, 2011 (76 FR 38977 (hereinafter referred to as LAC 33:III.1107(A)). Similarly , the EPA interprets the Pet itioner’s reference to La. Adm. Code tit. 33, § III:1507(A)(1) and (B)(1) as citations to LAC 33:III.1507(A)(1) and (B)(1), as approved by the EPA on July

15, 1993 (58 FR 38060) (hereinafter referred to as LAC 33:III.1507(A)(1) and (B)(1)). Also, the EPA i nterprets the Petitioner’s reference to La. Adm. Code tit. 33, § III:2307(C)(1)(a) and (C)(2)(a) as a citation to LAC 33:III.2307(C)(1)(a) and (C)(2)(a), as approved by the EPA on July

5, 2011 (76 FR 38977) (hereinafter referred to as LAC 33:III. 2307(C)(1) (a) and (C)(2)(a)).

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Page 260 of 339 events ( LAC 33:III. 1107, LAC 33:III. 1507(A)(1), LAC 33:III. 1507(B)(1)), while the other two provide such exemptions for excess emissions from nitric acid plants during startups and "upsets" ( L AC 33:III. 2307(C)(1)(a) and LAC 33:III. 2307(C)(2)(a)). For example, LAC 33:III. 1107 , which deals with the control of emissions from flares, states that exemptions "may

be granted b y the administrative authority during startup and shutdown period s if the flaring was not the result of failure to maintain and repair equipment." The Petitioner argued that this language effectivel y allows a discretionary decision by

a state official to exempt excess emissions during such events and thereby precludes e nforcement by the EPA and citizens for what would otherwise be violations of the applicable SIP emission limitations, contrary to the requirements of the CAA. b. The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions for excess em issions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official' s discretion. Inaccordance with sections 110(a)(2)(A ) and 302(k), SIPs must contain " emission limitations " and those limitations must be continuous. Thus, any

excess emissions above the level of the applicable SIP emission limitation must be considered a violation of such limitation , regardless of whether the state elects to exercise its enforcement discretion. SIP provisions that creat e exemptions such that the excess emissions during startup, shutdown, maintenance, or malfunctions are not violations of the applicable SIP emission limitations are inconsistent with the fundamental requirements of the CAA.

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Page 261 of 339 The first two SIP provision s id entified by the Petitioner explicitly state that emission limitations for VOC and NOx are either "not required" or "exempted" during specified t ypes of SSM events. The EPA believes that such automatic exemptions are impermissible under the CAA. By having S IP provisions that define what would otherwise be violations of the applicable SIP emission limitations as non - violations, the state has effectivel y negated the ability of the EPA or the public to enforce against those violations. Therefore, the EPA believ es that the inclusion of such automatic exemptions in LAC 33:III. 2153(B)(1)(i) and LAC 33:III. 2201(C)(8) is a substantial inadequacy that renders these SI P provisions impermissible under the CAA. The other five provisions identified by the Petitioner all provide the state with the discretion to "grant," "authorize," or "extend" exemptions from the otherwise applicable SIP emission limitations during various SSM events. The EPA believes that these provisions are impermissible as unboun ded director's discretion provisions that make a state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation of otherwise applicable SIP emission limitations . More importantly, the provisions purport to authorize the state official to create exempt ions from applicable SIP emission limitations when such exemptions are impermissible in the first instance. As discussed in mor e detail in section VII.A of this notice, th ese t ypes of director ' s discretion provisio ns undermine the purpose of emission limitations and the reductions they are intended to achieve, thereby rendering them less enforceable by the EPA or through a citizen suit . The EPA believes that the inclusion of such a director's discretion provision in LAC 33:III. 1107 (A) , LAC 33:III. 1507(A)(1), LAC 33:III. 1507(B)(1), LAC

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Page 262 of 339 33:III. 2307(C)(1)(a), and LAC 33:III. 2307(C)(2)(a) is therefor e a substantial inadequacy that renders these specific SI P provisions impermissible under the CAA. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to LAC 33:III. 2153(B)(1)(i) and LAC 33:III. 2201(C)(8). The EPA believes that these provisions allow for exemptions from otherwise applicable emission limitations and that such exemptions are inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A) , 110(a)(2)(C), and 302(k). The EPA also proposes to grant the Petition with respect to LAC 33:III. 1107 (A) , LAC 33:III. 1507(A)(1) & (B)(1), and LAC 33:III. 2307(C)(1)(a) & (C) (2)(a). T he discretion created b y these provisions allow s for revisions of the applicable SIP emission limitations without meeting the applicable SIP revision requirements of the CAA, and it allows case - b y - case exemptions from emission limitations when such exemptions are not permissible in the first instance. Thus, these provisions are also inconsistent with CAA sections 110(a)(2)(A) , 110(a)(2)(C), and 302(k). For these reason s , the EPA is proposing to find that each of these provisions is substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to these specific provisions. 3. New Mexico a. Petitioner's Anal ys is T he Petitioner objected to three provisions in the New Mexico SIP that provide affirmative defense s for excess emiss ions that occur during malfunctions ( 20.2.7.111 NMAC ), during startup and shutdown ( 20.2.7.112 NMAC ), and during emergencies

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Page 263 of 339 20.2.7.113 NMAC ). 155 The Petitioner objected to the inclusion of these provisions in the SIP based on its view that affirmative defen se provisions are alway s inconsistent with CAA requirements. T he Petitioner also argued that each of these affirmative defenses is gene rall y available to all sources, which is in contravention of the EPA ' s recommendation in the SSM Policy

that affirmative defenses should not be available to " a single source or groups of sources that has the potential to cause an exceedance of the NAAQS. " Finally , the Petitioner argued that the affirmative defense provision applicable to emergency events is impermissible bec ause it was modeled after the EPA ' s t itle V regulat ions, which are not meant to appl y to SIP provisions. b. The EPA's Evaluation The EPA disagrees with the Petitioner ' s contention that no affirmative defense provisions are perm issible in S IP s under the CAA. As explained in more detail in sections IV.B and VII.B of th is notice , the EPA interprets the CAA to allow affirmative defens e provisions for malfunctions. As long as these provisions are narrowly drawn and consistent with the CAA, as recommended in the EPA ' s guidance for affirmative defense provisions in SIPs, the EPA believes that states may elect to have affirmative defense provisions for malfunctions. By contrast , however, based on evaluation of the legal and factual basis for affirmative defenses in SIPs, the EPA now believes that affirmative

155 Petition at 54 - 57. The EPA interprets the Petitioner’s reference to N.M. Code R. § 20.2.7.111 , N.M. Code R. § 20.2.7.112 , and N.M. Code R. § 20.2.7.113, as citations to 20.2.7.111 NMAC, 20.2.7.112 NMAC, and 20.2.7.113 NMAC, as approv ed by the EPA on Sept. 14, 2009 (74 FR 46910) (hereinafter referred to as 20.2.7.111 NMAC, 20.2.7.112 NMAC, and 20.2.7.113 NMAC).

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Page 264 of 339 defense provisions are not appropriate in the case of planned source actions, such as startup and shutdown, because sources should be expected to comply with applicable emission limitations during those normal planned and predic ted modes of source operation. Again, as explained in s ection s IV .B and VII.C of this notice , the EPA is changing its interpretation of the CAA with respect to affirmative defe nses applicable during startup and shutdown events. As a resu lt, 20.2.7.112 NMAC , which provides an affirmative defense to excess emissions that occur during startup or shutdown, is substantially

inadequate to meet the requirements of the CAA. With respect to the Petitioner ' s second concern, the EPA agrees that the state ' s inclusion of an affirmative defense for malfunctions that is available to all sources, including single sources or groups of sources with the potential to cause exceedances of the NAAQS or PSD increments, renders the provis ion inconsistent with th e CAA. As explained more fully

in section VII.B of this notice, the EPA believes that such affirmative defenses may be permissible if either there is no "potential" for exceedances, or alternativel y, if the provision requires that the source make an affirm ative showing that any excess emissions did not in fact cause an exceedance of the NAAQS or PSD increments. The EPA has previously approved such provisions as meetin g CAA requirements on a case - by - case basis in specific actions on SIP submissions . Here, ho wever, 20.2.7.111 NMAC is not restricted in application to only those sources that do not have the potential to cause an exceedance, nor does it contain an y criteria requiring an "after the fact" showing that excess emissions from a single source or group of sources

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Page 265 of 339 did not cause an exceedance. Therefore, the provision is substantially inadequate to satisfy the CAA and EPA's interpretation of CAA requirements. Finally , 20.2.7.113 NMAC provides an affirmative defense for excess emissions that occur during e mergencies, a concept borrowed from the EPA ' s title V regulations. This provision defines " emergency " conditions that may cause a source to exceed a technology - based emission limitation and provides a " complete affirmative defense " to an action brought for non - compliance with such limitations if certain criteria are met. The 20.2.7.113 NMAC is substantially inadequate for three reasons. First, the provision does not explicitly

limit the affirmative defense to civil penalties. Although the EPA believes that narrowl y drawn affirmative defenses are permitted under the CAA for malfunction events (see s ection s IV.B and VII.B of this notice) , the EPA ' s interpretation of the CAA is that such affirmative defenses can onl y shield the source from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar any enforcement action for injunctive relief for violations of emission limitations is inconsistent with the requirements of CAA sections 113 and 304. Second, the provision does not contain elements for establishing the affirmative defense consistent with all of the recommended criteria in the EPA ' s SSM Policy for SIP provisions. The EPA acknowledges that the SSM Policy is onl y guidance concerning what ty pes of S IP provisions could be consistent with the requirements of the CAA . Nonetheless , through this rulemaking , the EPA is proposing to determine that 20.2.7.113 NMAC does not include criteria that are sufficientl y robust to qualify as an acceptable affirmative defense provision. Finally , the provision can be read to provide additional defenses bey ond those

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Page 266 of 339 alread y provided in federal technology - based standards. The EPA believes that approvable affirmative defenses in a SIP provision cannot operate to create diff erent or additional defenses from those that are provided in underlying federal technology - based emission limitations, such as NSPS or NESHAP. For these reasons, the EPA believes that 20.2.7.113 NMAC is impermissible under the CAA. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to 20.2.7.11 2 NMAC , which includes an affirmative defense applicable during startup and shutdown events that is contrary to the EPA ' s interpretation of the CAA . The EPA believes that this provision is inc onsistent with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, this provision is inconsistent with the requirements of CAA sections 113 and 304. The EPA also proposes to grant the Petition with respect to 2 0.2.7.11 1 NMAC , which includes an affirmative defense applicable during malfunction events. This provision is inconsistent with the CAA because it neither limits the defense to only

those sources that do not have the potential to cause exceedances of the N AAQS or PSD increments nor does it require sources to make an "after the fact" showing that no such exceedances actually occurred. Therefore, the EPA believes that this provision is similarly inconsistent with the fundamental requirements of CAA sections 1 10(a)(2)(A), 110(a)(2)(C), and 302(k), and with respect to CAA sections 113 and 304. Finall y, the EPA proposes to grant the Petition with respect to 20.2.7.113 NMAC . The EPA believes that this provision is an impermissible affirmative defense because it do es not explicitly limit the defense to monetary penalties, it establishes

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Page 267 of 339 criteria that are inconsistent with those in EPA's SSM Policy , and it can be read to create different or additional defenses from those that are provided in underl yi ng federal techno logy - based emission limitations. Thus, this provision too is inconsistent with CAA sections 110(a)(2)(A) , 110(a)(2)(C), and 302(k) , and with respect to CAA sections 113 and 304. For these reason s , the EPA is proposing to find that these provisions are substantially

inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to these provisions. 4. Oklahoma a. Petitioner's Anal ys is The Petitioner objected to two provisions in the Oklahoma SIP that together allow for discretionary exemptions from emission limitations during startup, shutdown, maintenance, and malfunctions (O AC 252:100 - 9 - 3(a) and OAC 252:100 - 9 - 3(b)) . 156 These provisions state that excess emissions during each of these t ypes of events constitute violations of the appli cable SIP emission limitations "unless the owner or operator of the facility

has complied with the notification requirements," which consist of a demonstration to the Director of the Air Quality Division that at least one of several criteria have been met. One example of the criteria includes a demonstration that the excess emissions resulted from "either malfunction or damage to the air pollution control or process equipment" or "scheduled maintenance." The Petitioner argued that these 156 Petition at 61 - 63. The EPA interprets the Petitioner’s reference to Okla. Admin. Code § 252:100 - 9 - 3(a) and Okla. Admin. Cod e § 252:100 - 9 - 3(b) as citations to OAC 252:100 - 9 - 3(a) and OAC 252:100 - 9 - 3(b), as approved by the EPA on Nov. 3, 1999 (64 FR 59629) (hereinafter referred to as OAC 252:100 - 9 - 3(a) and (3)(b)) .

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Page 268 of 339 provisions empower the director to excuse violations entirely and thereby

preclude enforcement b y the EPA or citizens. Specifically , if an owner or operator satisfies the director that the regulatory criteria under section 3(b) have been met , then the language of section 3(a) creates an exemption for the source and strongl y implies that the excess emission s are not a violation of the applicable SIP emission limitations. Therefore, the Petitioner argued that these provisions are inconsistent with the requirements of the CAA. b . The EPA's Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission lim itations, even where the exemption is only available at the exercise of a state official' s discretion. In accordance with sections 1 10(a)(2)(A) and 302(k), SIPs must contain " emission limitations " and those limitations must be continuous. Thus, any

excess emissions above the level of the applicable SIP emission limitation s must be considered a violation of such limitation s, regardless of whether the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, malfunctions, or maintenance are not violations of the applicable emission limitations are in consistent with the fundamental requirements of the CAA. The provisions identified by the Petitioner state that excess emissions during SSM events constitute violations "unless" the Director of the Air Qualit y Division provides an exemption. The EPA belie ves that OAC 252:100 - 9 - 3(a) and OAC 252:100 - 9 - 3(b) are impermissible , because they are unbounded director ' s discretion provisions that purport to make a state official the unilateral arbiter of whether the excess emissions in a given

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Page 269 of 339 event constitute a violation. T he provisions authorize the state official to create exempt ions from applicable SIP emission limitations on a case - by - case basis when such exemptions are impe rmissible in the first instance. These t ypes of director ' s discretion provisions undermine the purpose of emission limitations , and the reductions they are intended to achieve, thereby rendering them less enforceable by the EPA or through a citizen suit . T he EPA believes that the inclusion of such a director's discretion provision in OAC 252:100 - 9 - 3(a) and OAC 252:100 - 9 - 3(b) is therefore a substantial inadequacy and renders these SIP provisions impermissible. The EPA further notes that the provision allowi ng exemptions for excess emissions that occur during scheduled maintenance is inconsistent with CAA requirements for the reason that maintenance is a normal mode of source operation, during which sources should be expected to meet applicable SIP emission l imitations. Since the 1983 SSM Guidance, the EPA has indicated its view that excess emissions that occur during maintenance should not be excused. Similarly , in the 1999 SSM Guidance, the EPA did not recommend an y affirmative defense for excess emissions that occur during maintenance. In this action, the EPA is reiterating its view that the CAA does not permit exemptions or affirmative defenses for excess emissions that occur during such planned events. c. The EPA's Proposal

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Page 270 of 339 The EPA proposes to grant the Petition with respect to OAC 252:100 - 9 - 3(a) and OAC 252:100 - 9 - 3(b). 157 T he discretion created b y these provisions allow s for revisions of the applicable SIP emission limitations without meeting the applicable SIP revision requir ements of the CAA, and it allows case - b y - case exemptions from emission limitations when such exemptions are not permissible in the first instance. As a result, these provisions are inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A) , 110(a)(2)(C), and 302(k). Therefore , the EPA is proposing to find that these provisions are substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to these provisions. H. Affected States in EPA Region VII 1. Io wa a. Petitioner ' s Anal ys is The Petitioner first objected to a specific provision in the I owa SIP that allows for automatic exemptions from otherwise applicable SIP emission limitations during periods of startup, shutdown, or cleaning of control equipm ent (Iowa Admin. Code r. 567 - 24.1(1)). 158 The Petitioner noted that I owa Admin. Code r. 567 - 24.1(1) provides that excess emissions from these periods are not violations of the emissions standard "if the 157 The EPA notes that on July 16, 2010, Oklahoma submitted a SIP revision that would remove OAC 252:100 - 9 - 3(a) and OAC 252:100 - 9 - 3(b) and replace them with affirmative defense provisions. In this action, the EPA is only evaluating these provisions as they are currentl y found in the EPA - approved Oklahoma SIP. The EPA is not evaluating the July 16, 2010 SIP revision as part of this action. The EPA will address the July 16, 2010 SI P revision in a later action. 158 Petition at 37 - 38.

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Page 271 of 339 startup, shutdown or cleaning is accomplished expeditio usly and in a manner consistent with good practice for minimizing emissions." The Petitioner argued that such exemptions are inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy . The Petitioner argued that the CAA and the EP A's interpretation of the CAA in the SSM Policy

require that all such excess emissions be treated as violations. Second, the Petitioner objected to a provision that empowers the state to exercise enforcement discretion for violations of the otherwise appl icable SIP emission limitations during malfunction periods (Iowa Admin. Code r. 567 - 24.1(4)). 159 The Petitioner noted that this provision

— which states that "[d]etermination of any subsequent enforcement action will be made following review of [a] report" (em phasis added b y Petitioner) submitted by

the owner or operator of the source demonstrating certain conditions

— could be interpreted to mean that "no enforcement is warranted at all, b y anyone." 160 The Petitioner argued that such an interpretation of this prov ision could preclude enforcement by the EPA or citizens, both for civil penalties and injunctive relief, and that the EPA's interpretation of the CAA would forbid such a provision. The Petitioner thus requested that I owa revise this provision to eliminate any confusion that a decision by I owa state personnel not to enforce against a violation would in any way foreclose enforcement b y the EPA or citizens. b. The EPA ' s Evaluation

159 Petition at 37 - 38. 160 Petition at 38.

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Page 272 of 339 The EPA agrees that the CAA does not allow for exemptions from otherwise appli cable SIP emission limitations. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must b e continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that excess emi ssions during startup, shutdown, or control equipment cleaning are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The first provision identified by the Petitioner explicitly states that excess emission during periods of startup, shutdown, and cleaning of control equipment "is not a violation," contrary to the requirements of the CAA. The EPA believes that the inclusion of such an exemption from otherwise applicable SIP emission limi tations in I owa Admin. Code r. 567 - 24.1(1) is thus a substantial inadequacy and renders this specific SIP provision impermissible. The EPA notes that these exemptions are impermissible even though the state has imposed some factual limitations on their po tential scope. In Iowa Admin. Code r. 567 - 24.1(1), the state has conditioned the exemption for excess emissions during periods of startup, shutdown, or cleaning of control equipment, requiring that such activities be "accomplished expeditiously and in a manner consistent with good practice for minimizing emissions." Although this limitation on the scope of the exemptions is a helpful feature, the core problem remains that the provision provides impermissible

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Page 273 of 339 exemptions from the otherwise applicable SIP emis sion limitations by defining the excess emission as "not a violation." Such provisions are impermissible under the CAA because the state has effectively

negated the ability

of the EPA or through a citizen suit to enforce against those violations. However, the EPA disagrees with Petitioner that Iowa Admin. Code r. 567 - 24.1(4) is impermissible under the CAA. The EPA believes that this provision is permissible because it defines parameters for the exercise of enforcement discretion by state personnel for viol ations of emission limitations during malfunctions. According to the EPA's SSM Policy

interpreting the CAA, as discus sed in section IX.A of this n otice, a state has authorit y to have a SIP provision that pertains to the exercise of enforcement discretion c oncerning actions taken by state personnel. The provision at issue clearly states that an y excess emission during malfunction "is a violation." The rule also delineates factors that will be considered b y state personnel in determining whether to pursue enf

orcement for those regulatory violations that are due to excess emissions during malfunctions. The listing of these factors does not alter the statement that excess emissions are violations under the Iowa regulations. The provisions that describe the facto rs to be considered by state personnel onl y require that the state personnel consider such factors. The regulations do not state or imply that if a source makes an appropriate showing of meeting the factors, it is exempt from penalties or injunctive relief . The provision does not state or imply that an y other entity , including the EPA or a member of the public , is precluded from taking an enforcement action if the state exercises its discretion not to enforce violations of the emission limitations during ma lfunctions. I owa

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Page 274 of 339 Admin. Code r. 567 - 24.1(4) expressly identifies excess emissions described in the rule as violations and allows for the exercise of enforcement discretion in addressing malfunctions. This is consistent with the CAA and the EPA's SSM Policy and therefore does not render the SIP provision substantially inadequate. c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to I owa Admin. Code. R. 567 - 24.1(1). The EPA believes that this provision allows for exemptions from the otherwise applicable SIP emission limitations, and that such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For this reas on, the EPA is proposing to find that I owa Admin. Code. R. 567 - 24.1(1) is substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to this provision. The EPA proposes to deny the Petition with respect to I owa A dmin. Code r. 567 - 24.1(4). The EPA believes that the provision is on its face clearl y applicable only to Iowa state enforcement personnel and that the provision could not reasonabl y be read b y a court to foreclose enforcement by the EPA or through a citize n suit where I owa state personnel elect to exercise enforcement discretion. The EPA solicits comments on this issue, in particular from the State of Iowa, to assure that there is no misunderstanding with respect to the correct interpretation of Iowa Admin. Code r. 567 - 24.1(4). 2. Kansas a. Petitioner ' s Anal ys is

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Page 27 5 of 339 The Petitioner objected to three provisions in the Kansas SIP that allow for exemptions for excess emissions during malfunctions and necessary repairs (K.A.R. § 28 - 19 - 11(A)), scheduled maintenance (K.A.R. § 28 - 19 - 11(B)), and certain routine modes of operation (K.A.R. § 28 - 19 - 11(C)). 161 The Petitioner objected because all three of these provisions "state that excess emissions are not violations (or are permitted)," 162 contrary to the fundamental require ment of the CAA that all excess emissions be considered violations. The Petitioner argued that all three of these provisions would thus appear impermissibly

to preclude enforcement by the EPA or citizens for the excess emissions that would otherwise be vio lations. b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the app licable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during malfunctions, necessary repairs, and routine mode s of operation are not

161 Petition at 38 - 39. 162 Petition at 39.

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Page 276 of 339 violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. Two of the provisions identified by

the Petitioner explicitly

state that ex cess emissions under certain circumstances will "not be deemed violations," which is contrary to the requirements of the CAA. The EPA believes that the inclusion of such exemptions from the emission limitations in K.A.R. § 28 - 19 - 11(A) and the first part of K.A.R. § 28 - 19 - 11(C) is thus a substantial inadequacy

and renders these specific SIP provisions impermissible. The EPA notes that these exemptions are impermissible even though the state has imposed some factual and temporal limitations on their potentia l scope. For example, in K.A.R. § 28 - 19 - 11(A), the state has specified that excess emissions during malfunctions or necessary

repairs "shall not be deemed violations provided that: (1) The person responsible ... notifies the department of the occurrence and nature of such malfunctions, breakdowns, or repairs, in writing, within ten (10) days of noted occurrence." Similarly, in the first part of K.A.R. § 28 - 19 - 11(C) with respect to "[e]xcessive contaminant emission from fuel burning equipment used for indirect heating purposes resulting from fuel or load changes, start up, soot blowing, cleaning of fires, and rapping of precipitators," the state has made the exemption available only in such events that "do not exceed a period or periods aggregating more than fi ve (5) minutes during any consecutive one (1) hour period." Although these extra limitations on the scope of the exemptions are helpful features, the core problem remains that both of the provisions provide impermissible exemptions from the emission limitations by defining the excess emissions as non - violations.

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Page 277 of 339 The EPA believes that both K.A.R. § 28 - 19 - 11(B) and the second part of K.A.R. § 28 - 19 - 11(C) are impermissible as unbounded director's discretion provisions that purport to make a state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation. In the case of K.A.R. § 28 - 19 - 11(B), the provision authorizes a state official unilaterally to grant "prior approval" to permit "[e]missions in excess of the limit ations specified in these emission control regulations resulting from scheduled maintenance of control equipment and appurtenances." The provision vests the state official with unilateral power to grant an exemption from the otherwise applicable emission l imitation, without any public process at the state or federal level. By deciding that an exceedance of the emission limitation is "permitted," exercise of this discretion could preclude enforcement by the EPA or through a citizen suit . K.A.R. § 28 - 19 - 11(B) does contain a requirement that the source establish that it was not possible for the scheduled maintenance to occur during periods of shutdown but nevertheless empowers the state official to create an exemption from the emission limitation, and such an e xemption is impermissible in the first instance. Such a director's discretion provision undermines the emission limitations in the SIP, and the emissions reductions they are intended to achieve, and renders them less enforceable b y the EPA or through a cit izen suit . Similarly , the EPA believes that the second part of K.A.R. § 28 - 19 - 11(C) is impermissible because it allows a state official unilaterall y to "authorize, upon request of the operator, an adjusted time schedule for permitting ... excessive emission s" if the source can demonstrate that the period of "fuel or load changes, start up, soot blowing,

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Page 278 of 339 cleaning of fires, and rapping of precipitators" is required to extend longer than the five m inutes during a consecutive one - hour period allowed b y the first part of K.A.R. § 28 - 19 - 11(C). Because the K.A.R. § 28 - 19 - 11(C) grant of an automatic exemption of excess emissions during these events is impermissible in the first instance, the provision's authorization of the state official to extend the period of exemption for an even longer period upon request from a source is also impermissible. Moreover, the provision permits the state official to extend the time period of exemption without any additional public process at the state or federal level. This discretion authorizes the creation of an extended exemption on a case - by - case basis, where the exemption is not permissible in the first instance. Thus, this provision undermines the SI P emission limitations, and the emissions reductions they

are intended to achieve , and renders them less enforceable by the EPA or through a citizen suit . The EPA believes that the inclusion of director's discretion provisions in K.A.R. § 28 - 19 - 11(B) and K.A.R. § 28 - 19 - 11(C) is thus a substantial inadequacy

and renders these specific S IP provisions impermissible for this reason. The EPA notes that K.A.R. § 28 - 19 - 11(C) does condition the state official's authorization of an extended time period in which excess emissions are not considered violations upon a source limiting "visible emiss ions" to not exceed 60 percent opacit y. The CAA does, as discusse d in section VII.A of this notice, permit states to develop alternative emission limitations or other forms of enforceable control measures or techniques that appl y during startup or shutdown . The EPA believes that emission limitations in SIPs should generall y be developed in the first instance to account for the ty pes of normal operation outlined in K.A.R. § 28 - 19 - 11(C), such as cleaning and soot

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Page 279 of 339 blowing. K.A.R. § 28 - 19 - 11(C) does not appear to comply with the Act's requirements as interpreted in the EPA's SSM Policy in a number of respects. The provision's exemptions apply to all SIP emission limitations, and the alternative limitation in K.A.R. § 28 - 19 - 11(C) res tricts onl y visible emissions and thus, at best, is an alternative emission limitation only

for particulate matter. In addition, such alternative emission limitations must be developed in consultation with the EPA and must be narrowl y drawn to apply to sma ll groups of sources using specific ty pes of control strategy . To the extent that the requirement limiting the opacity of visible emissions during periods of fuel or load changes, start up, soot blowing, cleaning of fires, and rapping of precipitators in K .A.R. § 28 - 19 - 11(C) was intended to function as an alternative emission limitation rather than as an exemption granted at the state official's discretion from the otherwise applicable SIP emission limitations, the terms of the alternative limitation are su bstantially inadequate and do not render this specific SIP provision permissible under the CAA. With respect to the Petitioner ' s concern that the challenged exemptions preclude enforcement b y the EPA or citizens, the EPA agrees that this is one of the cri tical reasons why such provisions are impermissible under the CAA. By having SIP provisions that automatically

exempt or allow state officials to define what would otherwise be violations of the applicable SIP emission limitations as non - violations, the st ate has effectivel y negated the ability of the EPA or the public to enforce against those violations . c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to K.A.R. § 28 - 19 - 11(A) and

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Page 280 of 339 the first part of K.A.R. § 28 - 19 - 11(C). The EPA believes that both of these provisions allow for automatic exemptions from the otherwise applicable emission limitations, and th at such outright exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required b y s ections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the state has defined violations in a way that would interfere with effective enforcement b y the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304 . The EPA also proposes to grant the Petition with respect to K.A.R. § 28 - 19 - 11(B) and the second part of K.A.R. § 28 - 19 - 11(C). The EPA believes both allow for exemptions from otherwise applicable emission limitations through a state official's unilateral exercise of discretionary authority that is insufficiently

bo unded and includes no additional public process at the state or federal level. Such provisions are inconsistent with the fundamental requirements of the CAA with respect to SIPs and SIP revisions. Moreover, the requirement that visible emissions not exceed 60 - percent opacity during the periods of operation specified in K.A.R. § 28 - 19 - 11(C) is not a permissible alternative emission limitation under the EPA's SSM Policy interpreting the CAA. For these reasons, the EPA is proposing to find that K.A.R. § 28 - 19 - 11(A), K.A.R. § 28 - 19 - 11(B), and K.A.R. § 28 - 19 - 11(C) are substantiall y inadequate to meet CAA requirements and thus is proposing to issue a SI P call with respect to these provisions. 3. Missouri

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Page 281 of 339 a. Petitioner ' s Anal ys is The Petitioner objected to two provisions in the Missouri SI P that could be interpreted to provide discretionary exemptions. 163 , 164 The first provides exemptions for visible emissions exceeding otherwise applicable SIP opacit y limitations (Mo. Code Regs. Ann. tit 10, § 10 - 6.220(3)(C)). The second provides authorization to state personnel to decide whether excess emissions "warrant enforcement action" where a source submits information to the state showing that such emissions were "the consequence of a malfunction, start - up or shutdown." (Mo . Code Regs. Ann. tit 10, § 10 - 6.050(3)(C)). The Petitioner argued that Mo. Code Regs. Ann. tit 10, § 10 - 6.050(3)(C) "clearl y gives the director the authorit y to decide whether excess emissions occurred during a malfunction, start - up, or shutdown, and whether they 'warrant enforcement

163 Petition at 49 - 50. 164 The EPA notes that the Petitioner also identified additional provisions Mo. Code Regs. Ann. tit 10, § 10 - 6.200(3)(E)(1), Mo. Code Regs. Ann. tit 10, § 10 - 6.200(3)(E)(3)(C)(I), Mo. Code Regs. Ann. tit 10, § 10 - 6.200(3)(E)(4)(B), Mo. Code Regs. Ann. tit 10, § 10 - 6.200(3)(E)(5)(E), Mo. Code Regs. Ann. tit 10, § 10 - 6.200(3)(E)(6)(F), Mo. Code Regs. Ann. tit 10, § 10 - 6.200(3)(E)(7)(E), Mo. Code Regs. Ann. tit 10, § 10 - 6.200(3)(E)(11)(C), whi ch provide for exemptions to HMIWIs, that it all eged are inconsistent with the CAA and the EPA ' s SSM Policy . However, the Petitioner did not request that the EPA address th ese provision s in its remedy request, and thus the EPA is not addressing these provisions in this action. (This is in contrast to th e case of a similar HMIWI provision in Nebraska for which the Petition did specificall y make such a request.) The EPA further notes that the provisions enumerated above are not part of Missouri ' s SIP but were approved as part of the separate state plan to meet the applicable emissions guidelines under CAA § 111(d) and 40 CFR Part 60. Therefore, a SIP call is not appropriate. The EPA may elect to evaluate these provisions in a later action.

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Page 282 of 339 action.'" 165 According to the Petitioner, the provision could be interpreted to decide that enforcement is not warranted by any body , which could preclude action b y the EPA and citizens for both civil penalties and injunctive rel ief, and such an interpretation is inconsistent with the CAA as interpreted in the EPA's SSM policy . Similarly , the Petitioner argued that Mo. Code Regs. Ann. tit 10, § 10 - 6.220(3)(C) could be construed to empower the director to preclude enforcement by th e EPA and citizens. The Petitioner noted that the CAA as interpreted in the EPA's SSM policy forbid s such provisions if they would purport to preclude enforcement by the EPA or citizens. b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of section 110(a)(2)(A), SIPs must contain emission limitations and, in accor dance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitations must be considered violations, whether or not the state elects to exercise its enforcement discretion. The EPA believes that Mo. Code Regs. Ann. tit 10, § 10 - 6.220(3)(C) is impermissible as an insufficiently bounded director's discretion provision. The provision states that "[v]isible emissions over the lim itations . . . of this rule are in violation of this

165 Petition at 50.

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Page 283 of 339 rule unless the director determines that the excess emissions do not warrant enforcement action based on data submitted" by sources regarding startup, shutdown, and malfunction events. This provision cou ld be read to mean that once the state official has determined that excess visible emissions do not warrant enforcement action, those excess emissions are not violations. Such an interpretation would make the state official the unilateral arbiter of whethe r the excess emissions in a given event constitute a violation, which could preclude enforcement by the EPA or the public who might disagree about whether enforcement action is warranted. Most importantly, however, the provision may be read to authorize th e state official to create an exemption from the emission limitation, and such an exemption is impermissible in the first instance. The EPA believes that the inclusion of an insufficiently bounded director's discretion provision in Mo. Code Regs. Ann. tit 10, § 10 - 6.220(3)(C) is thus a substantial inadequacy and renders this specific SIP provision impermissible for this reason. The EPA believes that Mo. Code Regs. Ann. tit 10, § 10 - 6.050(3)(C) is permissible because it defines parameters for the exercise o f enforcement discretion b y state personnel for violations of emission limitations. According to the EPA's SSM Policy , as discusse d in section IX.A of this notice, a state has authorit y to have a SIP provision that pertains to the exercise of enforcement discretion concerning actions taken by state personnel. The provision only maintains that state enforcement personnel "shall consider" certain factors in determining whether to take an enforcement action under the state statutory

enforcement provisions. The regulations do not state or imply that if a source makes an appropriate showing it is exempt from penalties or injunctive relief. The

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Page 284 of 339 provisions that describe the factors to be considered by a state official only

state that the official will consider such factors. The provision does not state or imply that an y other entity , including the EPA or a member of the public , is precluded from taking an enforcement action i f the state exercises its discretion not to pursue enforcement. The EPA believes that Mo. Code Regs. Ann. tit 10, § 10 - 6.050(3)(C) is consistent with the CAA and the EPA's SSM Policy and therefore does not render the SIP provision substantially

inadequate. c. The EPA ' s Proposal The EPA proposes to grant the Petition with res pect to Mo. Code Regs. Ann. tit 10, § 10 - 6.220(3)(C). The EPA believes that this provision could be read to allow for exemptions from the otherwise applicable SIP emission limitations through a state official's unilateral exercise of discretionary authority that is insufficiently

bounded and includes no additional public process at the state or federal level. Such a provision is inconsistent with the fundamental requirements of the CAA with respect to SIPs as required b y sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find Mo. Code Regs. Ann. tit 10, § 10 - 6.220(3)(C) is substantially inadequate to meet CAA requirements and thus is proposing to issue a SIP call with respect to this provision. The EPA proposes to deny the Petition with respect to Mo. Code Regs. Ann. tit 10, § 10 - 6.050(3)(C). The EPA believes that the provision is on its face clearly applicable only to Missouri state enforcement p ersonnel and that the provision could not reasonabl y be read b y a court to foreclose enforcement b y the EPA or through a citizen suit where

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Page 285 of 339 Missouri state personnel elect to exercise enforcement discretion. The EPA solicits comments on this issue, in parti cular from the State of Missouri, to assure that there is no misunderstanding with respect to the correct interpretation of Mo. Code Regs. Ann. tit 10, § 10 - 6.050(3)(C). 4. Nebraska a. Petitioner ' s Anal ys is The Petitioner objected to two provisions in the Nebraska SIP. 166 First, the Petitioner objected to a generall y applicable provision that provides authorization to state personnel to decide whether excess emissions "warrant enforcement action" where a source submits information to the state showing that such emissions were "the result of a malfunction, start - up or shutdown" (Neb. Admin. Code Title 129 § 11 - 35.001). The Petitioner argued that this provision "clearl y gives the Director the authority to decide whether excess emission occurred during a malfunction, startup or shutdown, and whether they

'warrant enforcement action.'" 167 According to the Petitioner, the provision could be interpreted to give a state official the authority to decide that enforcement is not warranted b y an ybod y, which could preclud e action by the EPA and citizens for both civil penalties and injunctive relief, and such an interpretation is inconsistent with the CAA and the EPA's SSM policy interpreting the CAA. The Petitioner thus requested that Nebraska revise the provision to elim inate any confusion that a decision by state

166 Petition at 51. 167 Petition at 51 .

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Page 286 of 339 personnel not to enforce against a violation would in any way foreclose enforcement b y the EPA or citizens. Second, the Petitioner objected to a specific provision in Nebraska state law that contains exemptions for excess emissions at HMIWIduring startup, shutdown, and malfunction (Neb. Admin. Code Title 129 § 18 - 004.02). The Petitioner requested that these exemptions be removed entirel y from Nebraska's SIP. b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limit ations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitations must be considered violations, wh ether or not the state elects to exercise its enforcement discretion. The EPA believes that Neb. Admin. Code Title 129 § 11 - 35.001 is permissible because it defines parameters for the exercise of enforcement discretion by state personnel for violations of emission limitations. According to the EPA's SSM Policy , as dis cussed in section IX.A of this notice, a state ha s authority to have a SIP provision that pertains to the exercise enforcement discretion concerning actions taken by state personnel. The provision in question maintains that state enforcement personnel "shall consider" certain factors in determining wheth er to take an enforcement action under the

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Page 287 of 339 state statutory

enforcement provisions. The regulation does not expressly or implicitly place an y limits on the state personnel's ability to exercise discretion, and the enforcement discretion provided b y this regulation is not an exemption to the SIP emission limitations. The provision does not state or imply that an y other entity , including the EPA or a member of the public , is precluded from taking enforcement action if the state exercises its discretion not to pursue enforcement. The EPA believes that Neb. Admin. Code Title 129 § 11 - 35.001 is consistent with the CAA and the EPA's SSM Policy

and therefore does not render the SIP substantially inadequate. The EPA disagrees that the provisions providing exemptions for HMIWImust be removed from the SIP. Nebraska Admin. Code Title 129 § 18 - 004.02 was not approved into Nebraska's SIP, but rather it was approved as part of the separate state plan to meet the applicable emissions guidelines under CAA § 111(d) and 40 CF R Part 60. Because that rule is not in the Nebraska SIP is not related to any provisions in the SIP, it does not represent an inadequacy

in the SIP. c. The EPA ' s Proposal The EPA proposes to deny the Petition with respect to Neb. Admin. Code Title 129 § 11 - 35.001. The EPA believes that this provision is on its face clearly applicable only to Nebraska state enforcement personnel and that the provision could not reasonabl y be read b y a court to foreclose enforcement b y the EPA or through a citizen suit wher e personnel from Nebraska elect to exercise enforcement discretion. The EPA solicits comments on this issue, in particular from the State of Nebraska, to assure that there is no misunderstanding with respect to the correct interpretation of this provision.

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Page 288 of 339 The EPA proposes to deny the Petition with respect to Neb. Admin. Code Title 129 § 18 - 004.02. This regulation is not part of the Nebraska SI P and thus cannot represent an inadequacy

in the SIP. 5. Nebraska: L incoln - Lancaster a. Petitioner ' s Anal ys is T he Petitioner objected to a generally applicable provision in the L incoln Lancaster County

Air Pollution Control Program (Art. 2 § 35), which governs the Lincoln - Lancaster County Air Pollution Control District of Nebraska, that is parallel "in all aspects pertinent to this analy sis" to Neb. Admin. Code Title 129 § 11 - 35.001. 168 The Lincoln - Lancaster County provision provides authorization to local personnel to decide whether excess emissions "warrant enforcement action" where a source submits information to the county showing that such emissions were "the result of a malfunction, start - up or shutdown." The Petitioner argued that this provision "clearl y gi ves the Director the authority

to decide whether excess emission occurred during a malfunction, startup or shutdown, and whether they 'warrant enforcement action.'" 169 According to the Petitioner, the provision could be interpreted to decide that enforcement is not warranted by an ybod y, which could preclude action b y the EPA and citizens for both civil penalties and injunctive relief, and such an interpretation is inconsistent with the CAA and the EPA's SSM Policy

interpreting the CAA. The Petitioner thus requested that Nebraska or

168 Petition at 51 - 52. 169 Petition at 52 .

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Page 289 of 339 Lincoln - Lancaster County revise the provision to eliminate any confusion that a dec ision by local personnel not to enforce against a violation would in any way foreclose enforcement b y the EPA or citizens. b. The EPA ' s Evaluation The EPA agrees that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any

excess emissions above the level of the applicable emission limitations must b e considered violations, whether or not the state elects to exercise its enforcement discretion. The EPA believes that Lincoln - Lancaster Count y Air Pollution Control Program, Art. 2 § 35 is permissible because it defines parameters for the exercise of enf orcement discretion by

local personnel for violations of emission limitations. According to the EPA's SSM Policy , as discus sed in section IX.A of this notice , a state has authority to have a SIP provision that pertains to the exercise enforcement discretio n concerning actions taken b y state personnel. The provision in question maintains that local enforcement personnel "shall consider" certain factors in determining whether to take an enforcement action under the local statutory enforcement provisions. The regulation does not expressly

or implicitly

place any

limits on the local personnel's abilit y to exercise discretion, and the enforcement discretion provided by the regulation is not an exemption

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Page 290 of 339 to the SIP emission limitations. The provision does not stat e or imply that any other entity , including the EPA or a member of the public , is precluded from taking enforcement action if the county exercises its discretion not to pursue enforcement. The EPA believes that L incoln - Lancaster County Air Pollution Contro l Program, Art. 2 § 35 is consistent with the CAA and EPA's SSM Policy and therefore does not render the SIP substantially

inadequate. c. The EPA ' s Proposal The EPA proposes to deny the Petition with respect to L incoln - Lancaster County Air Pollution Control Program, Art. 2 § 35. The EPA believes that this provision is on its face clearl y applicable only to L incoln - Lancaster County enforcement personnel and that the provision could not reasonabl y be read b y a court to foreclose enforcement by the EPA or through a citizen suit where personnel from L incoln - Lancaster County elect to exercise enforcement discretion. The EPA solicits comments on this issue, in particular from the State of Nebraska and from the Lincoln - Lancaster County Air Pollution Control Program, to assure that there is no misunderstanding with respect to the correct interpretation of this provision. I. Affected States in EPA Region VIII 1. Colorado a. Petitioner's Anal ys is The Petitioner objected to two affirmative defense provisions in the Colorado SI P that provide for affirmative defenses to qualifying sources during malfunctions (5 Colo. Code Regs § 1001 - 2(II.E)) and during periods of startup and shutdown (5 Colo. Code

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Page 291 of 339 Regs § 1001 - 2(II.J)). 170 The Petitioner acknowledged that this state has correctly revised its SIP in important way s in order to be consistent with CAA requirements, as interpreted the EPA ' s SSM Policy , including providing affirmative defense provisions that are limited to monetary

penalties, that do not apply in actions to enforce federal stand ards such NSPS or NESHAP approved into the SI P, and that meet " almost word for word " the recommendations of the 1999 SSM Guidance . Nevertheless, the Petitioner had two concerns with these SIP provisions . First, the Petitioner objected to both of these pro visions based on its assertion that the CAA allows no affirmative defense provisions in SIPs . Second, the Petitioner asserted that even if affirmative defense provisions were permissible under the CAA, the state had properl y followed EPA guidance in the af firmative defense provision applicable to startup and shutdown events but failed to do so in the affirmative defense provision applicable to malfunctions . Specificall y, the Petitioner argued that the EPA ' s own guidance for affirmative defenses recommended that they " are not appropriate where a single source or a small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments. " 171 In stead, the state ' s affirmative defense for malfunction events is potentially

available to an y sour ce, if it can establish that the excess emissions during the event did not result in exceedances of ambient air quality standards that could

170 Petition at 25 - 27. 171 Id. at 25.

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Page 292 of 339 be attributed to the source. 172 The Petitioner objected to this as not merely inconsistent with the EPA ' s 1999 SSM Gu idance but an approach " that does not have the same deterrent effect " on sources and that would not have the same effects on sources to assure that they comply at all times in order to avoid violations . As practical matter, the Petitioner also argued that including this element to the affirmative defense could " mire enforcement proceedings in the question of whether or not the NAAQS or PSD increments were exceeded as a matter of fact. " b. The EPA's Evaluation The EPA disagrees with the Petitioner ' s contention that no affirmative defense provisions are permissible in SI Ps under the CAA . As explained in more detail in section IV .B of this notice, the EPA interprets the CAA to allow affirmative defense provisions for malfunctions . So long as these provisions are narrowl y drawn and consistent with the CAA, as recommended in the EPA ' s guidance for affirmative defense provisions in SI Ps, the EPA believes that states may elect to have affirmative defense provisions for malfunctions . H owever, based on evaluation of the legal and factual basis for affirmative defenses in SIPs, the EPA now believes that affirmative defense provisions are not appropriate in the case of planned source actions, such as startup and shutdown, because sources should be expected to comply wi th applicable emission limitations during those normal planned and predicted modes of source operation . Again, as explained in section IV .B of this notice, the EPA is changing its interpretation with respect to affirmative

172 See 5 Colo. Code Regs § 1001 - 2(II.E. 1.j).

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Page 293 of 339 defenses for startup and shutdown . The EPA acknowledges that at the time of its approval of 5 Colo. Code Regs § 1001 - 2(II.J) into the SI P in 2006, the state had complied with the EPA 's then - applicable interpretation of the CAA and had worked with the EPA to develop that provision. 173 Howeve r, based on further consideration of this issue prompted by

the Petition, the EPA is revising its SSM Policy to interpret the CAA to allow affirmative defenses only in the case of events that are bey ond the control of the source, i.e. , malfunctions . With respect to the Petitioner ' s second concern, the EPA disagrees that the state ' s inclusion of an affirmative defense available to all sources, including single sources or groups of sources with the " potential " to cause exceedances of the NAAQS or PSD increments, renders the provision inconsistent with the CAA . The EPA ' s recommendations for appropriate criteria for affirmative defenses in the SSM Policy are guidance, and as guidance, the EPA believes that there can be facts and circumstances in which a state may

elect to develop a SIP provision with somewhat different criteria, so long as they

still meet the same statutory objectives . Conditioning the affirmative defense on a factual showing that there was no act ual violation of air standards attributable to the excess emissions during the malfunction is an acceptable alternative means to the same end . For example, instead of providing no affirmative defense to sources with this

" potential " for these impacts on ai r qualit y, the state could provide the affirmative defense to sources on the condition that the source must be able to demonstrate that the 173 See "Approval and Disapproval and Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown," 71 FR 8921 at 895 8 (Feb. 22, 2006).

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Page 294 of 339 excess emissions did not have these impacts . The EPA considers this an appropriate means to the same end of providin g the affirmative defense to sources in a way that provides relief from monetary penalties for events that were bey ond their control, at the same time providing incentive to the source to prevent the violation and to take all practicable steps to minimize the impacts of the violation in order to qualify for the relief from penalties . As described in more detail in section VII.B of this notice, the EPA is revising its recommendations for affirmative defense provisions for malfunctions with respect to this sp ecific point in this proposal . Finally , the EPA understands the Petitioner's concern about enforcement proceedings becoming "mired" in various questions of fact that must be established in an enforcement action. However, the EPA notes that all enforcement proceedings turn upon important questions of fact that must be proven, including facts necessary to establish whether there was a violation, the extent of the violation, and whether there are extenuating circumstances that should be taken into considerati on in the assessment of monetary penalties or injunctive relief for the violation. Indeed, the statutory factors that Congress provided for the assessment of penalties in CAA section 113(e) explicitly include "the seriousness of the violation," which would encompass the extent and severit y of the environmental impact of the violation. Thus, the EPA does not agree that it is unreasonable to include an affirmative defense element that pertains to whether or not the excess emissions in question caused a violat ion of the NAAQS or PSD increments. c. The EPA's Proposal

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Page 295 of 339 The EPA proposes to grant the Petition with respect to 5 Colo. Code Regs § 1001 - 2(II.J) because it provides an affirmative defense for violations due to excess emissions applicable during startup and shutdown events, contrary to the EPA ' s current interpretation of the CAA. The EPA believes that this provision allows for an affirmative defense that is inconsistent with the fundamental requirements of CAA sectio ns 110(a)(2)(A), 110(a)(2)(C), and 302( k). In addition, this provision is inconsistent with the requirements of CAA section s 113 and 304. For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requiremen ts and proposes to issue a SI P c all with respect to this provision . The EPA proposes to deny the Petition with respect to 5 Colo. Code Regs § 1001 - 2(II.E) , because this provision includes an affirmative defense applicable to malfunction events that is consistent with the requirements of the CAA, as interpreted by the EPA in the SSM Policy . In particular, the EPA denies the Petition with respect to the claim that this provision is inconsistent with the CAA because it is available to sources or groups of sources that might have the potential to c ause violations of the NAAQS or PSD increments . The EPA believes that an acceptable alternative approach is to require the source to establish, as an element of the affirmative defense, that the excess emissions in question did not cause such impacts . Acco rdingly , the EPA is proposing to find that this provision is consistent with CAA requirements and thus declining to make a finding of substantial inadequacy

with respect to this provision . 2. Montana a. Petitioner's Anal ys is

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Page 296 of 339 The Petitioner objected to an exemption from otherwise applicable emission limitations for aluminum plants during startup and shutdown (Montana Admin. R 17.8.334). 174 The Petitioner argued that an automatic exemption for emissions during startup and shutdown events is inconsistent with the CAA and the EPA ' s interpretation of the CAA in the SSM Policy . In addition, the Petitioner argued that these exemptions a lso could not qualify

as source - specific alternative limits applicable during startup and shutdown because there " is nothing to in dicate that the State addres sed the feasibility of control strategies, minimization of the frequency and duration of startup and shutdown modes, worst - case emissions, and impacts on air quality . " 175 The Petitioner further objected that this provision would b e in contravention of the EPA ' s recommendation that source - specific emission limitations for startup and shutdown would not be appropriate when a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments . b. The EPA's Evaluation The EPA agrees that ARM 17.8.334 (in Administrative Rule of Montana) is inconsistent with the requirements of the CAA . This provision explicitly provides that affected sources are exempted from otherwise applicable SIP emission limitations during startup and shutdown . The relevant part of this SIP provision specifies that " [o]perations during startup and shutdown shall not constitute representative conditions for the

174 Petition at 50 - 51. 175 Id. at 51.

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Page 297 of 339 purposes of determining compliance with this rule " an d further specifies " nor shall emission in excess of the levels required in ARM 17.8.331 and 17.8.332 during periods of startup and shutdown be considered a violation of ARM 17.8.331 and 17.8.332. " 176 The latter regulatory

cross - references are to emission li mits for fluorides and opacity at the source, both of which relate to the attainment and maintenance of the NAAQS and PSD increments . 177 Moreover, the provision in question also contains ambiguous regulatory

text that suggests the exemption extends to other emission limitations applicable to this source category . By stating that operations during startup and shutdown are not representative conditions for determining compliance with " this rule, " the provision appears to provide the same exemptions from other e mission limitations that may apply to aluminum plants with respect to other air emissions as well . The EPA ' s longstanding interpretation of the CAA is that SIP provisions containing exemptions during startup and shutdown are not permissible . The EPA also agrees that ARM 17.8.3 34 does not qualify as a source - specific emission limitation applicable during startup and shutdown, as recommended in the 1999 SSM Guidance. As explained in section VII.A of this notice, the EPA is clarifying that guidance to eliminate any misperception that exemptions from otherwise applicable emission limitations are permissible during startup and shutdown . States can elec t to develop appropriate source - specific alternative emission limitations that apply during 176 See Montana Admin. R 17.8.334(1). 177 The EPA notes that the state has elected to control fluoride emissions as a means of addressing particulate matter from the affected sources.

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Page 298 of 339 startup and shutdown events . The EPA recommended that in order to be approvable ( i.e. , meet CAA requirements), any new special emission limitations applicable to the source during startup and shutdown should be narrowly tailored and take into account consideration s such as th e technological limitations of the specific source category and the control technology

that is feasible during startup and shutdown . An y such SIP revision that would alter the existing applicable emission limitations for a source during startup and shutdown must meet the same requirements as an y other SIP submission, i.e. , compliance with CAA section s 110(a), 110(k), 110(l), and 193, and any other CAA provision substantively

germane to the SIP revision . Given the text of ARM 17.8.334 , however, the EPA belie ves the state intended not to create a source - specific emission limitation applicable during startup and shutdown but instead merel y an exemption for such emissions. L ikewise, the EPA does not believe that the issue of special emission limitations during s tartup or shutdown for a single source or group of sources was contemplated at the time the state created this SIP provision. Nevertheless, the EPA notes that its current SSM Policy does not interpret the CAA to be a bar to special emission limitations in these circumstances, if the state addresses the concern about impacts on NAAQS and PSD increments in some other comparable way . c. The EPA ' s Proposal The EPA proposes to grant the Petition with respect to ARM 17.8.334. The EPA believes that this provision allows for exemptions from otherwise applicable SI P emission limitations during startup and shutdown and that such exemptions are inconsistent with the fundamental requirements of CAA sectio ns 110(a)(2)(A),

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Page 299 of 339 110(a)(2)(C), and 302(k) . Itis not nec essary to reach the Petitioner ' s argument that this provisi on is not an appropriate source - specific emis sion limitation, because the provision at issue instead provides an impermissible exemption for emissions during startup and shutdown . Similarly , it is not necessary to reach the Petitioner ' s concern with respect to the issue of a single source or group of sources with the potential to cause an exceedance of the NAAQS or PSD increment , because the provision at issue provides an impermissible exemption . Fo r these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and thus proposes to issue a SIP c all with respect to this provision . 3. North Dakota a. Petitioner's Anal ys is The Petitioner objected to two provisions in the North Dakota SIP that create exemptions from otherwise applicable emission limitations. 178 The first provision creates exemptions from a number of cross - referenced opacity limits "where the limits specified in this article cannot be met because of operations and processes such as, but not limited to, oil field service and drilling operations, but only so long as it is not technically feasible to meet said specifications" (N.D. Admin. Code § 33 - 15 - 01 - 13 - 04.4). The second provision cre ates an implicit exemption for "temporary operational breakdowns or cleaning of air pollution equipment" if the source meets certain conditions (N.D. Admin. Code § 33 - 15 - 05 - 01.2a(1)). The Petitioner claimed that both provisions violate the CAA

178 Petition at 59.

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Page 300 of 339 and the EPA' s interpretation of the CAA in the SSM Policy because they

create exemptions from otherwise applicable emission limitations for excess emissions during these events rather than treating the excess emissions as violations, and because the provisions could b e construed to preclude enforcement of the emission limitations for these violations by

the EPA and citizens. b. The EPA's Evaluation The EPA believes that N.D. Admin. Code 33 - 15 - 01 - 13 - 04.4 and N.D. Admin. Code 33 - 15 - 01 - 13 - 04.3 179 are inconsistent with the requirements of the CAA . These provisions explicitly

allow exemptions from the otherwise applicable emission limitations for opacity

in several other regulations: N. D. Admin. Code 33 - 15 - 03 - 01, N.D. Admin. Code 33 - 15 - 03 - 02, N.D. Admin. Code 33 - 15 - 15 - 03 - 03, and N.D. Admin. Cod e 33 - 15 - 03 - 03.1. The exemption created b y N.D. Admin. Code 33 - 15 - 01 - 13 - 04.4 is indefinite in scope and has unclear limits, because it is available whenever a source cannot meet the emission limitations "because of operations or processe s such as, but not limited to, oil field service and drilling operations," but "onl y so long as it is not technicall y feasible to meet said [emission limitations]". It is unclear whether the provision is intended to apply onl y to special circumstances, suc h as malfunctions, or to a broader range of normal source operations. It is also unclear who determines what operations or processes make compliance impossible or who determines when it again

179 The EPA notes that the Petitioner specificall y focused on concern with N.D. Admin. Code 33 - 15 - 01 - 13 - 04.4 , but N.D. Admin. Code 33 - 15 - 01 - 13 - 04.3 also includes a related problem .

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Page 301 of 339 becomes technicall y feasible to meet the limits. Whatever the pa rameters of this imprecise provision, however, it is clear that it contemplates outright exemptions from the applicable emission limitations under certain circumstances and at certain times. The EPA believes that N.D. Admin. Code 33 - 15 - 01 - 13 - 04.3 is imper missible under the CAA as interpreted in the EPA's SSM Policy as an unbounded director's discretion provision. The provision states that the otherwise applicable emission limitations for opacity

in the several other listed regulations do not appl y "where an applicable opacity

standard is established for a specific source." In accordance with this provision, a state official could modify the opacit y limits in a permit or other document to allow emissions in excess of the otherwise applicable SI P limitations . As discussed in sect ion VII.A of this notice, such director's discretion provisions are impermissible. Such an interpretation would make the state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation, wh ich could preclude enforcement b y the EPA or the public who might disagree about whether enforcement action is warranted. Most importantly , however, the provision may be read to authorize the state official to create an exemption from the emission limitati on, and such an exemption is impermissible in the first instance. The EPA believes that the inclusion of an unbounded director's discretion provision in N.D. Admin. Code 33 - 15 - 01 - 13 - 04.3 is thus a substantial inadequacy

and renders this specific SIP provis ion impermissible for this reason. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission

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Page 302 of 339 limitations" in CAA section 302(k), such emission limitations mu st be continuous. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations of the applicable emission limitations are inconsistent with the fundamental requirements of the CAA with re spect to emission limitations in SIPs. The exemptions provided in N.D. Admin. Code 33 - 03 - 01 - 13 - 04.4 are not consistent with CAA requirements, because they would exempt excess emissions that occur during the periods in question. In addition, the provision d oes not operate to create a source - specific emission limitation that applies during the periods in question, nor does it meet the recommended criteria and parameters for an affirmative defense for violations that occur as a result of a qualifying malfuncti on. Moreover, the amorphous nature of the provision, in which it is unclear who makes the determination whether the source should be excused from the emission limitations and what the precise parameters are for these exemptions, exacerbates the problem. Thus, the EPA also agrees with the Petitioner's concern that this provision could be interpreted to bar enforcement by the EPA or through a citizen suit , not only

because it creates impermissible exemptions but also because of the inherent ambiguities about: (i) who makes the determination whether the excess emissions are to be considered a violation; and (ii) what constitutes an event during which the excess emissions are to be excused. In its current form, the EPA has concerns not only about the impermissib le exemptions created by the provision but also about its practical enforceabilit y as a SIP provision meeting basic CAA requirements for implementation, maintenance, and enforcement of the NAAQS as contemplated in CAA section 110 .

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Page 303 of 339 The EPA agrees that N.D. Admin. Code 33 - 15 - 05 - 01.2a(1) is also inconsistent with CAA requirements for SI P provisions. This provision creates an implicit exemption for " temporary

operational breakdowns or cleaning of air pollution equipment " if the source meets certain conditions. N.D. Admin. Code 33 - 15 - 05 - 01 in general imposes emission limitations for particulate matter from industrial processes, with the limitations stated in terms of the maximum amount of particulate matter allowed in any one hour. Notwithstanding these emission limitations, however, N.D. Admin. Code 33 - 15 - 05 - 01.2a(1) provides that: [t]emporary

operational breakdowns or cleaning of air equipment for an y process are permitted provided that the owner or operator immediately advises the department of the circumstan ces and outlines an acceptable corrective program and provided such operations do not cause an immediate public health hazard (emphasis added). Although N.D. Admin. Code 33 - 15 - 05 - 01.2a(1) does not explicitly state that the exceedances of the emission lim itations are not violations, the EPA believes that this is the most reasonable reading of the provision. Moreover, the title for this subsection is "exceptions," and the immediately preceding provisions impose the emission limitations on sources. Thus, the provision creates an impermissible exemption from the otherwise applicable SIP emission limitations. The EPA notes that although the state has imposed some conditions on the exemptions, e.g. , the requirement to notify state officials of occurrence of the event, this provision would not qualify as an affirmative defense consistent with CAA requirements. First, the exemptions would negate the availability of monetary

penalties or injunctive relief in an y enforcement proceeding. Second, the conditions for qu alifying for the

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Page 304 of 339 exemption are not consistent with the criteria that EPA recommends for elements of an affirmative defense for which the source bears the burden of proof in order to assure that they are narrowl y drawn and available onl y in suitable circums tances. Third, the provision extends not just to "breakdowns," which presumabl y equates to malfunctions, but also extends to "cleaning of air equipment," which clearly encompasses excess emissions during normal source maintenance

— events for which sources s hould be designed, operated, and maintained to comply with emission limitations, and during which sources should be expected to comply . c. The EPA's Proposal The EPA proposes to grant the Petition with respect to N.D. Admin. Code 33 - 15 - 01 - 13 - 04.4. The EP A believes that this provision allows for exemptions from otherwise applicable SIP emission limitations during startup and shutdown and that such exemptions are inconsistent with the fundamental requirements of CAA sectio ns 110(a)(2)(A), 110(a)(2)(C), and 302(k) . In addition, the EPA believes that this provision is sufficiently

ambiguous that it would be difficult for the state, the EPA, or the public to enforce the provision effectivel y in its current form, and that this provision is thus inconsistent with the requirements of CAA section 110(a) on this basis as well. For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to this provision . The EP A also proposes to grant the Petition with respect to N.D. Admin. Code 33 - 15 - 01 - 13 - 04.3 . The EPA believes that this provision allows for discretionary exemptions from otherwise applicable emission limitations through a state official' s

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Page 305 of 339 unilateral exercise of discretion ary authority that is insufficiently

bounded . Such provisions are inconsistent with the fundamental requirements of the CAA with respect to SIPs and SI P revisions. Moreover, the discretion created by these provisions allows case by - case exempt ions from emission limitations , when such exemptions are not permissible in the first instance . Such exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and thus proposing to issue a SIP c all with respect to this provision . The EPA also proposes to grant the P etition with respect to N.D. Admin. Code 33 - 15 - 05 - 01.2a(1). The EPA believes that this provision allows for exemptions from otherwise applicable SIP emission limitations during operational breakdowns ( i.e. , malfunctions) or cleaning of air equipment ( i.e ., maintenance) and that such exemptions are inconsistent with the fundamental requirements of CAA sectio ns 110(a)(2)(A), 110(a)(2)(C), and 302(k) . For th ese reasons, the EPA is also proposing to find that this provision is substantially inadequate to meet C AA requirements and proposes to issue a SIP c all with respect to this provision . 4. South Dakota a. Petitioner's Anal ys is The Petitioner objected to a provision in the South Dakota SIP that create s exemptions from otherwise applicable SI P emission limit ations (S.D. Admin, R.

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Page 306 of 339 74:36:12:02(3)) . 180 The Petitioner asserted that the provision imposes visible emission limitations on sources but explicitly excludes emissions that occur "for brief periods during such operations as soot blowing, start - up, shut - down, and malfunctions." The Petitioner argued that such automatic exemptions for excess emissions is contrary to the requirements of the CAA for SI P provisions, as well as contrary to the EPA's 1982 SSM Guidance and 1999 SSM Guidance. b. The EPA's Evaluation The EPA agrees that S.D. Admin. R. 74:36:12:02(3) is inconsistent with CAA requirements for SI P provisions. This provision creates an exemption from applicable visible emission limitations from the generall y applicable SIP requirements. The S.D. Admin. R. 74:36:12:01 imposes a generally applicable opacity

limit on all sources, measured using the EPA's Method 9. However, S.D. Admin. R. 74:36:12:02 provides exceptions to these limits and, in particular, in S.D. Admin. R. 74:36:12:02(3) includes an explicit e xemption for emissions for "brief periods during such operations as soot blowing, start - up, shut - down, and malfunctions." In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the d efinition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. SI P provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations of the applicable emi ssion limitations are

180 Petition at 66.

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Page 307 of 339 inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. In addition, the EPA's SSM Policy has long interpreted the CAA not to permit exemptions for excess emissions during other modes of normal source operation, such as "soot blowing." The EPA notes that by its terms, S.D. Admin. R. 74:36:12:02(3) implies that it also would exempt excess emissions during other modes of normal source operation because it explicitly applies to events "such as" the four listed ty pes, therefore implying it is not an exclusive list and could extend to other ty pes of events as well. The exemptions provided in S.D. Admin. R. 74:36:12:02(3) are not consistent with CAA requirements, because they would exempt excess emissions that occur during the periods in question. Excess emissions must be treated as violations of the applicable emission limitations. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to S.D. Admin. R. 74:36:12:02(3). The EPA believes that this provision allows for exemptions from otherwise applicable SIP emission limitations during startup , shutdown, and malfunction, as well as during other modes of normal source operations such as "soot blowing." Automatic e xemptions from otherwise applicable SIP emission limitations are inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) . For th ese reasons, the EPA is also proposing to find that this provision is substantially inadequate to meet CAA requirements and proposes to issue a SIP c all with respect to this provision . 5. Wyoming

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Page 308 of 339 a. Petitioner's Anal ys is The Petitioner objected to a specific provision in the Wy oming SIP that provides an exemption for excess particulate matter emi ssions from diesel engines during startup, malfunction, and maintenance (ENV - AQ - 1 Wy o. Code R. § 2(d)). 181 The provision exempts emission of visible air pollutants from diesel engines from applicable SI P limitations "during a reasonable period of warmup foll owing a cold start or where undergoing repairs and adjustment following malfunction." The Petitioner argued that this exemption "is contrary to EPA policy

for source category - specific rules for startup and shutdown." 182 Accordingl y, the Petitioner requested that this provision be eliminated from the SIP. b. The EPA's Evaluation The EPA believes that the CAA does not allow for exemptions from otherwise applicable SIP emission limitations. In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of "emission limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations of the

181 Petition at 74. 182 Id .

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Page 309 of 339 applicable emission lim itations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of such an exemption in ENV - AQ - 1 W yo. Code R. § 2(d) from otherwise applicable SIP emission limitation for violations during cold startup or following malfunction of diesel engines is a substantial inadequacy and renders this specific SIP provision impermissible. The EPA notes that ENV - AQ - 1 Wy o. Code R. § 2(d) does not appear to comply with the CAA' s requi rements as interpreted in the EPA ' s SSM Policy for source category specific rules for startup and shutdown. The provision provides that the otherwise applicable emission "limitation shall not apply during a reasonable period of warmup following a cold star

t." Recent court decisions have made clear that automatic exemptions from otherwise applicable SIP emission limitations for excess emissions during periods of startup are not in fact permissible under the CAA. As discus sed in section VII.A of this notice, states may elect to develop alternative emission limitations or other forms of enforceable control measures or techniques that appl y during startup or shutdown, but exemptions for excess emissions during such periods are inconsistent with the fundamental r equirements of the CAA . c. The EPA's Proposal The EPA proposes to grant the Petition with respect to ENV - AQ - 1 Wy o. Code R. § 2(d) . The EPA believes that this provision allows for exemptions from otherwise applicable SIP emission limitations, and that suc h exemptions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required b y sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating

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Page 310 of 339 these impermissible exemptions, the state has d efined violations in a way that would interfere with effective enforcement by the EPA and citizens for excess emissions during these events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find that this provision is subs tantially inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to this provision. J. Affected States and Local Jurisdictions in EPA Region IX 1. Arizona a. Petitioner ' s Anal ys is The Petitioner objected to two provisio ns in the Arizona Department of Air Quality 's (ADEQ) Rule R18 - 2 - 310, which provide affirmative defenses for excess emissions during malfunctions (AAC Section R18 - 2 - 310(B)) and for excess emissions during startup or shutdown (AAC Section R18 - 2 - 310(C)). 183 Fi rst, the Petitioner asserted that all affirmative defenses for excess emissions are inconsistent with the CAA and should be removed from the Arizona SI P. Additionally , quoting from the EPA's statement in the SSM Policy that such affirmative defenses shoul d not be available to "a single source or small group of sources [that] has the potential to cause an exceedance of the NAAQS or PSD increments," the Petitioner contended that "sources with the power to cause an exceedance should be strictly controlled at all times, not just when they actually cause an exceedance." 184

183 Petition at 20 - 22. 184 Petition at 20.

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Page 311 of 339 Although acknowledging that R18 - 2 - 310 contains some limitations to address this issue, the Petitioner argued that the limitation in the SIP provision is not the same as entirel y disallowing affi rmative defenses for these t yp es of sources, which removes the "incentive" for such sources to emit at levels close to those that would violate a NAAQS or PSD increment. Accordingl y, the Petitioner requested that the EPA require Arizona either to entirel y remove R18 - 2 - 310(B) and (C) from the SI P or to revise the rule so that affirmative defenses are not available to a single source or any small group of sources that has the potential to cause an exceedance of the NAAQS. Second, the Petitioner asserted that the provision applicable to startup and shutdown periods (R18 - 2 - 310(C)) does not include an explicit requirement for a source seeking to establish an affirmative defense to prove that "the excess emissions were not part of a recurring pattern indicative o f inadequate design, operation, or maintenance." The Petitioner provided a table specifically comparing the provisions in R18 - 2 - 310(C) against the EPA's recommended criteria in the 1999 SSM Guidance to show that R18 - 2 - 310(C) does not contain a specific pro vision to address this recommended criterion and stated that the rule should be revised to require such a demonstration. b. The EPA ' s Evaluation The EPA disagrees with the Petitioner ' s contention that no affirmative defense provisions are permissible in SIPs under the CAA. As explained in more d etail in section IV of this notice, the EPA interprets the CAA to allow affirmative defense provisions for malfunctions. So long as these provisions are narrowly drawn and consistent with the CAA, as recommended in the EPA ' s guidance for affirmative defense provisions in SI Ps,

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Page 312 of 339 the EPA believes that states may elect to have affirmative defens e provisions for malfunctions. With respect to the potential air quality impacts of a "single source or small group of sources ," the EPA believes that R18 - 2 - 310 satisfies the statutory requirements as interpreted in the EPA guidance. Rule R18 - 2 - 310 specifies five t yp es of standards or limitations for which affirmative defenses are not available under the rule and includes among those five t ypes: standards or limitations contained in an y Prevention of Significant Deterioration (PSD) or New Source Review (NSR) permit issued by the EPA ; standards or limitations included in a PSD permit issued by the Arizona Department of Air Quality ( ADEQ ) to meet the requirements of R18 - 2 - 406(A)(5) ( Permit Requirements for Sources Located in Attainment and Unclassifiable Areas) ; and standards or limitations contained in R18 - 2 - 715(F) ( " Standards of Performance for Existing Primary Copper Smelters; Sit e - specific Requirements") (R18 - 2 - 310(A)). Thus, no existing primary copper smelter subject to emission standards or limitations under R18 - 2 - 715(F) may seek an affirmative defense for any emissions in excess of those provisions, and likewise no major statio nary source subject to permit conditions designed to protect the PSD increments in a PSD permit issued by ADEQ or the EPA may

seek an affirmative defense for an y emissions in excess of those permit conditions. Existing copper smelters are, to the EPA's kno wledge, the only sources under ADEQ jurisdiction that have the potential to cause an exceedance of the NAAQS, and requirements to protect the PSD increments are implemented entirel y through PSD permits issued by states and the EPA. Accordingl y, the clear e xclusion of these standards and limitations from the affirmative

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Page 313 of 339 defense provisions in R18 - 2 - 310 adequatel y addresses the EPA's concerns with respect to potential violations of the NAAQS or PSD increments. With respect to other emission standards or limit ations ( i.e., those not specifically excluded from coverage under the rule), R18 - 2 - 310 requires each source seeking to establish an affirmative defense to demonstrate, among other things, that "[d]uring the period of excess emissions there were no exceedan ces of the relevant ambient air quality standards . . . that could be attributed to the emitting source" (R18 - 2 - 310(B)(7), (C)(1)(f)). The state's election to provide such an affirmative defense contingent upon a demonstration by

the source that there were no exceedances of the relevant ambient air quality standards during the relevant period that could be attributed to the emitting source reasonabl y assures that these affirmative defense provisions will not create incentives to emit at higher levels or int erfere with attainment and maintenance of the NAAQS. As described in section VII.B of this notice, the EPA considers this ty pe of requirement an acceptable alternative approach to address the concern of sources or small groups of sources that could adverse ly impact the NAAQS or PSD increments through excess emissions. Second, with respect to the Petitioner's assertion that R18 - 2 - 310 should be revised to require a demonstration that excess emissions during startup or shutdown are not part of a recurring pattern indicative of inadequate design, operation, or maintenance, it is not necessary to reach this issue. Instead, the EPA is proposing to modify its interpretation of the CAA with respect to affirmative defenses for startup and shutdown to eliminate the r ecommended criteria for such provisions as articulated in the 1999 SSM Guidance and

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Page 314 of 339 to find, instead, that all affirmative defense provisions for planned startup and shutdown periods are not appropriate for SI P provisions under the CAA. As discussed in sec tions IV and VII.C of this notice, the EPA believes that affirmative defense provisions are appropriate in SIPs for malfunctions but not for startup and shutdown. c. The EPA ' s Proposal The EPA proposes to deny the Petition with respect to the arguments c oncerning ADEQ's affirmative defense provisions for malfunctions in R18 - 2 - 310(B). For the reasons provided above and in our previous approval of R18 - 2 - 310 into the Arizona SIP, 185 the EPA believes that these affirmative defense provisions are consistent with the requirements of the CAA. With respect to the arguments concerning ADEQ's affirmative defense provisions for startup and shutdown periods in R18 - 2 - 310(C), however, the EPA proposes to grant the Petition, because R18 - 2 - 310(C) is inconsistent with the requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k), as well as CAA sections 113 and 304. The EPA believes that a SIP provision establishing an affirmative defense for planned startup and shutdown periods is substantially inadequate to compl y with CAA requirements. For these reasons, the EPA is proposing to issue a SI P call with respect to R18 - 2 - 310(C). 2. Arizona: Maricopa County a. Petitioner ' s Anal ys is 185 See 66 FR 48085 at 48087 (September 18, 2001) (final rule approving R18 - 2 - 310 into Arizona SIP).

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Page 315 of 339 The Petitioner objected to two provisions in the Maricopa Count y Air Pollution Control Regulations that provide affirmative defenses for excess emissions during malfunctions (Maricopa County Air Pollution Control Regulation 3, Rule 140, § 401) and for exces s emissions during startup or shutdown (Maricopa Count y Air Pollution Control Regulation 3, Rule 140, § 402). 186 These provisions in Maricopa Count y Air Quality Department (MCAQD) Rule 140 are similar to the affirmative defense provisions in ADEQ R18 - 2 - 310. First, the Petitioner asserted that the affirmative defense provisions in Rule 140 are problematic for the same reasons identified in the Petition with respect to ADEQ R18 - 2 - 310. Specificall y, the Petitioner argued that affirmative defenses should not be a llowed in an y S IP and, alternatively , that to the extent affirmative defenses are permissible, the provisions in Rule 140 addressing exceedances of the ambient standards are "inappropriatel y permissive and do not comply with EPA guidance." 187 Accordingl y, the Petitioner requested that the EPA require Arizona and/or MCAQD either to entirel y remove these provisions from the SI P or to revise them so that they are not available to a single source or small group of sources that has the potential to cause a NAAQS exceedance. Second, the Petitioner asserted that the provisions for startup and shutdown in Rule 140 do not include an explicit requirement for a source seeking to establish an affirmative defense to prove that "the excess emissions in question were not part of a

186 Petition at 23. 187 Petition at 23.

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Page 316 of 339 recurring pattern indicative of inadequate design, operation, or maintenance." The Petitioner argued that Rule 140 should be revised to require such a demonstration. b. The EPA ' s Evaluation First, with respect to the potential air quality impacts of a "single source or small group of sources," the EPA believes that MCAQD Rule 140 satisfies the statutory requirements as interpreted in the EPA's guidance. Rule 140 specifies four ty pes of standards or limitations for which affirmative defenses are no t available under the rule, including standards and limitations contained in any Prevention of Significant Deterioration (PSD) or New Source Review (NSR) permit issued by the EPA , and standards and limitations included in a PSD permit issued by MCAQD to me et the requirements of subsection 308.1(e) of Rule 240 (Permit Requirements For New Major Sources And Major Modifications To Existing Major Sources) (Rule 140, sections 103.3, 103.4). Thus, no major stationary source subject to permit conditions designed t o protect the PSD increments in a PSD permit issued by MCAQD or the EPA may seek an affirmative defense for any emissions in excess of those permit conditions. These provisions adequatel y address the EPA's concerns regarding potential violations of the PSD increments. Rule 140 also requires each source seeking to establish an affirmative defense to demonstrate, among other things, that "[d]uring the period of excess emissions there were no exceedances of the relevant ambient air quality standards . . . that could be attributed to the emitting source" (Rule 140, sections 401.7, 402.1(f)). The state's election to provide such an affirmative defense contingent upon a demonstration b y the source that

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Page 317 of 339 there were no exceedances of the relevant ambient air quality standards during the relevant period that could be attributed to the emitting source reasonabl y assures that these affirmative defenses provisions will not create incentives to emit at higher levels or interfere with attainment and maintenance of the NAAQ S. As described in section VII.B of this notice, the EPA considers this ty pe of requirement an acceptable alternative approach to address the concern of sources or small groups of sources that could adversel y impact the NAAQS or PSD increments through exce ss emissions. Second, with respect to the Petitioner's assertion that MCAQD Rule 140 should be revised to require a demonstration that excess emissions during startup or shutdown are not part of a recurring pattern indicative of inadequate design, operati on, or maintenance, it is not necessary to reach this issue. Instead, the EPA is proposing to modify its interpretation of the CAA with respect to affirmative defenses for startup and shutdown to eliminate the recommended criteria for such provisions as ar ticulated in the 1999 SSM Guidance and to find, instead, that all affirmative defense provisions for planned startup and shutdown periods are not appropriate for SIP provisions under the CAA. As discussed in sections IV and VII.C of this notice, the EPA be lieves that affirmative defense provisions are appropriate in SIPs for malfunctions but not for startup and shutdown. c. The EPA ' s Proposal The EPA proposes to deny the Petition with respect to the arguments concerning MCAQD's affirmative defense provisi ons for malfunctions in Rule 140, section 401. For the reasons provided above and in our previous approval of Rule 140 into the Arizona

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Page 318 of 339 SIP, 188 the EPA believes that these affirmative defense provisions are consistent with the requirements of the CAA. With respect to the arguments concerning ADEQ's affirmative defense provisions for startup and shutdown periods in Rule 140, section 402, however, the EPA proposes to grant the Petition, because it is inconsistent with the requirements of CAA sections 110(a)(2) (A), 110(a)(2)(C), and 302(k), as well as CAA sections 113 and 304. The EPA believes that a SI P provision establishing an affirmative defense for planned startup and shutdown periods is substantially inadequate to comply

with CAA requirements. For these re asons, the EPA is proposing to issue a SIP call with respect to Maricopa County Air Pollution Control Regulation 3, Rule 140, § 402. 3. Arizona: Pima County a. Petitioner 's Anal ys is The Petitioner objected to a provision in the Pima County Department of Environmental Quality 's (PCDEQ) Rule 706 that pertains to enforcement discretion. 189 Quoting from paragraph (D) of Rule 706, which provides that "[t]he Control Officer may defer prosecution of a Notice of Violation issued for an exceedance of a control stand ard if . . ." certain conditions are met, the Petitioner argued that ambiguit y in this provision could be construed to preclude enforcement by the EPA or citizens. The Petitioner requested that the EPA require the PCDEQ and/or Arizona to revise this provis ion to

188 See 67 FR 54957 (Aug. 27, 2002) (final rule approving Rule 140 into Arizona SI P). 189 Petition at 2 3 - 24.

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Page 319 of 339 make clear that a decision by the Pima County

Control Officer not to enforce under the rule would in no way affect enforcement by the EPA or citizens. b. The EPA ' s Evaluation The EPA disagrees with the Petitioner's assertion that Rule 706 creates ambiguity that could be construed to preclude enforcement by the EPA or through a citizen suit . Paragraph (D) of Rule 706 states that "[ t ] he control officer may defer prosecution of a Notice of Violation issued for an exceedance of a control stand ard if" four specific conditions are met (PCDEQ Rule 706, paragraph (D), emphasis added). Rule 706 does not address the EPA or citizen enforcement in an y way and on its face does nothing to preclude enforcement b y the EP A or through a citizen suit . Even wi th respect to the PCDEQ's authorities, the rule authorizes but does not require the Control Officer to defer prosecution where the identified criteria are met. c. The EPA ' s Proposal The EPA proposes to deny the Petition with respect to PCDEQ Rule 706. Th e EPA believes that the provision regarding enforcement in paragraph (D) of this rule clearl y applies onl y to the PCDEQ Control Officer and could not reasonably be read b y a court to foreclose enforcement by the EPA or through a citizen suit where the PCDE Q Control Officer elects to exercise enforcement discretion. The EPA solicits comment on this issue, in particular from the State of Arizona and from the P CDEQ, to assure that there is no misunderstanding with respect to the correct interpretation of Rule 706. K. Affected States in EPA Region X 1. Alaska

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Page 320 of 339 a. Petitioner's Anal ys is The Petitioner objected to a provision in the Alaska SIP that provides an excuse for "unavoidable" excess emissions that occur during SSM events, including startup, shutdown, sc heduled maintenance, and "upsets" ( Alaska Admin. Code tit. 18 § 50.240 ). 190 The provision provides: "Excess emissions determined to be unavoidable under this section will be excused and are not subject to penalt y. This section does not limit the department's power to enjoin the emission or require corrective action." The Petitioner argued that this provision excuses excess emissions in violation of the CAA as interpreted in the EPA's SSM Policy , which require s all such emissions to be treated as violations of the applicable SIP emission limitations. The Petitioner further argued that it is unclear whether the provision could be interpreted to bar enforcement actions brought by the EPA or citizens, because it is drafted as if the state were the sole enforcement authority . Finally , the Petitioner pointed out, the provision is worded as if it were an affirmative defense, but it uses criteria for enforcement discretion. b. The EPA's Evaluation The EPA interprets Alaska Admin. Code tit. 18 § 50.240 as providing an affirmative defense under which excess emissions that occur during certain SSM events may be "excused" if the requisite showing is made by the source. This provision is substantially

inadequate for three reasons. First, provisions that allow a state offic ial's decision to bar EPA or citizen enforcement are impermissible under the CAA. Although

190 Petition at 18 - 20.

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Page 321 of 339 Alaska Admin. Code tit. 18 § 50.240 states that it "does not limit the department ' s power to enjoin the emission nor require corrective action" (emphasis added), it also states that "[e]xcess emissions determined to be unavoidable under this section will be excused and are not subject to penalty." The net effect of this language appears to bar the EPA and the public from seeking injunctive relief. Moreover, the provision is ambiguous as to whether the EPA or the public could pursue an action for civil penalties if they disagreed with the state official's determination that excess emission s were unavoidable. Second, as explained more full y in sections IV.B and VII.C of this notice, the EPA believes that affirmative defense provisions that apply to startup, shutdown, or maintenance events are inconsistent with the requirements of the CAA. C onsequently , Alaska Admin. Code tit. 18 § 50.240 , which applies to excess emissions that occur during startup, shutdown, and scheduled maintenance, is impermissible for this reason as well. Finally , while the EPA continues to believe that affirmative defe nse provisions applying to malfunctions can be consistent with the CAA, as long as the criteria set forth in the SSM Policy

are carefull y adhered to (as explained in more detail in sections IV.B and VII.B of this notice), the criteria in Alaska Admin. Code tit. 18 § 50.240 are not sufficiently

similar to those recommended in the EPA's SSM Policy to assure that the affirmative defense is available only in appropriately

narrow circumstances. The EPA acknowledges that the SSM Policy is onl y guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA . Nonetheless, through this rulemaking , the EPA is proposing to determine that Alaska Admin. Code tit. 18 § 50.240 does not include criteria that are sufficiently robust to qualify

as an acceptable

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Page 322 of 339 affirmative defense provision for malfunctions ( i.e. , upsets) . For example, the defense available in Alaska Admin. Code tit. 18 § 50.240 is not limited to excess emissions caused b y sudden, unavoidable, breakdown of technology bey on d the control of the owner or operator. Similarly , the provision contains neither a statement that the defense does not apply

in situations where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increme nts nor a requirement that sources make an after - the - fact showing that no such exceedance occurred. Accordingl y, the EPA agrees with the Petitioner's contention that the provision is substantially

inadequate to satisfy

the requirements of the CAA. c. The EPA's Proposal The EPA proposes to grant the Petition with respect to Alaska Admin. Code tit. 18 § 50.240 . The provision applies to startup, shutdown , and maintenance events, contrary to the EPA ' s interpretation of the CAA to allow such affirmative defenses onl y for malfunctions. Additionally , the section of Alaska Admin. Code tit. 18 § 50.240 applying to "upsets" is inadequate because the criteria referenced are not sufficientl y similar to those recommended in the EPA's SSM Policy for affirmative de fense provisions applicable to malfunctions. Thus, the provision is inconsistent with the requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). Moreover, the provision appears to bar the EPA and citizens from seeking penalties and injunctive relief. As a result, Alaska Admin. Code tit. 18 § 50.240 is inconsistent with the fundamental requirements of CAA sections 113 and 304. For these reasons, the EPA is proposing to find that the provision is substantially inadequate to meet CAA requirements

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Page 323 of 339 and proposes to issue a SIP c all wi th respect to the provision. 2. Id aho a. Petitioner's Anal ys is The Petitioner objected to a provision in the I daho SIP that appears to grant enforcement discretion to the state as to whether to impose penalties for ex cess emissions during certain SSM events (I daho Admin. Code r . 58.01.01.131 ). 191 The provision provides that "[t]he Department shall consider the sufficiency of the information submitted and the following criteria to determine if an enforcement action to impose penalties is warranted . . . ." The Petitioner argued that this provision c ould be interpreted to give the Department authority to decide that enforcement is not warranted by any one, thereb y precluding action by the EPA and citizens for civil penalties or injunctive relief. b. The EPA's Evaluation The EPA's SSM Policy

interpret s the CAA to allow states to elect to have appropriatel y drawn SIP provisions addressing the exercise of enforcement discretion by state personnel. As the Petitioner recognized, Idaho Admin. Code r . 58.01.01.131 appears to be a statement of enforcement dis cretion, and it delineates factors that will be considered b y the Department in determining whether to pursue enforcement for violations due to excess emissions. Subsection 101.03 of the provision clearly states that "[a]ny decision by

the Department . . . shall not excuse the owner or operator from compliance with the relevant emission standard." There is no language suggesting that

191 Petition at 33.

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Page 324 of 339 the Department's determination to forgo state enforcement against a source would in any way preclude the EPA or the public fr om demonstrating that violations occurred or from taking enforcement action. Consequently , the EPA believes the provision is consistent with the requirements of the CAA. c. The EPA's Proposal The EPA proposes to deny the Petition with respect to Id aho Admin. Code r . 58.01.01.131 . The EPA interprets this provision to allow both the EPA and the public to seek civil penalties or injunctive relief, regardless of how the state chooses to exercise its enforcement discretion. The EPA solicits comments on this is sue, in particular from the State of Idaho, to assure that there is no misunderstanding with respect to the correct interpretation of Idaho Admin. Code r . 58.01.01.131 . 3. Oregon a. Petitioner's Anal ys is The Petitioner objected to a provision in the Ore gon SIP that grants enforcement discretion to the state to pursue violations for excess emissions during certain SSM events ( Or. Admin. R. 340 - 028 - 1450 ) . 192 The provision provides that "[i]n determining if a period of excess emissions is avoidable, and wheth er enforcement action is warranted, the Department, based upon information submitted by the owner and or operator, shall consider whether the following criteria are met . . . ." The Petitioner argued that this provision could be interpreted to give the Dep artment authority to decide that

192 Petition at 63.

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Page 325 of 339 enforcement is not warranted by any one, thereb y precluding action b y the EPA and citizens for civil penalties or injunctive relief . b. The EPA's Evaluation After the Petition was filed, the provision of the Oregon SI P cit ed b y the Petitioner was recodified and revised b y the state and was submitted to the EPA as part of a SIP revision. The EPA approved the SIP revision on December 27, 2011. 193 The provision has been recodified and revised at Or. Admin. R. 340 - 214 - 0350. The p rovision as recodified provides that "[i]n determining whether to take enforcement action for excess emissions, the Department considers, based upon information submitted by the owner or operator," a list of factors. The EPA's SSM Policy

interprets the CAA to allow states to elect to have SIP provisions that pertain to the exercise of enforcement discretion by state personnel. As revised b y Oregon and approved b y the EPA into the SIP, Or. Admin. R. 340 - 214 - 0350 is plainly a statement of enforcement discret ion, and it delineates factors that will be considered b y the Department in determining whether to pursue state enforcement for violations of the applicable SIP emission limitations due to excess emissions. There is no language in this provision suggesting that the Department's determination to forgo enforcement against a source would in an y way preclude the EPA or the public from demonstrating that violations occurred and taking enforcement action. Consequently , the EPA believes the current SI P provision i s consistent with the requirements of the CAA.

193 76 FR 80725 at 80747 .

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Page 326 of 339 c. The EPA's Proposal The EPA proposes to deny the Petition with respect to Or. Admin. R. 340 - 028 - 1450 . This provision has since been recodified and approved b y the EPA at Or. Admin. R. 340 - 214 - 0350. The EPA interprets the recodified provision to allow both the EPA and the public to seek civil penalties or injunctive relief, regardless of how the state chooses to exercise its enforcement discretion. The EPA solicits comments on this issue, in particular from the State of Oregon, to assure that there is no misunderstanding with respect to the correct interpretation of Or. Admin. R. 340 - 214 - 0350. 4. Washington a. Petitioner's Anal ys is The Petitioner objected to a provision in the Washington SIP that provides an excuse for " unavoidable " excess emissions that occur during certain SSM events , including startup, shutdown, scheduled maintenance, and "upsets" ( Wash. Admin. Code § 173 - 400 - 107 ) . 194 The provision provides that "[e] xc ess emissions determined to be unavoidable under the procedures and criteria under this section shall be excused and are not subject to penalty . " The Petitioner argued that this provision excuses excess emissions in violation of the CAA as interpreted in the EPA's SSM Policy , which require s all such emissions to be treated as violations of the applicable SIP emission limitations. The Petitioner further argued that it is unclear whether the provision could be interpreted to bar enforcement actions brought by the EPA or citizens , because it is

194 Petition at 71 - 72.

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Page 327 of 339 drafted as if the state were the sole enforcement authority . Finall y, the Petitioner pointed out , the provision is worded as if it were an affirmative defense, but it uses criteria for enforcement discretion . b. The E PA's Evaluation The EPA interprets Wash. Admin. Code § 173 - 400 - 107 as an affirmative defense under which excess emissions that occur during certain SSM events can be " excused " if the requisite showing is made b y the source. This provision is substantially inadequate for four reasons. First, provisions that allow a state official' s decision to bar the EPA or citizen enforcement are impermissible under the CAA. The Wash. Admin. Code § 173 - 400 - 107 provides that "[t]he owner or operator of a source shall have the burden of proving to Ecology

or the authority

or the decision - maker in an enforcement action that excess emissions were unavoidable." This language makes clear that the state's determination is not binding on the EPA or the public , because it refers to other authorities and decision - makers besides the state agency . However, the provision also states that "[e]xcess emissions determined to be unavoidable . . . shall be excused and not subject to penalty ." This language could be interpreted to preclude tho se excess emissions deemed "unavoidable" from being considered violations of the applicable SIP emission limitations, and thus it could preclude enforcement by the EPA or through a citizen suit . Second , it is unclear whether the affirmative defense applie s only to actions for monetary penalties or could also be used to bar actions seeking injunctive relief. Although the EPA believes that narrowl y drawn affirmative defenses are permitted under the CAA for malfunction events , as discussed in sections IV.B an d VII.B of this notice ,

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Page 328 of 339 the EPA ' s interpretation is that such affirmative defenses can onl y shield the source from monetary penalties and cannot be a bar to injunctive relief . Third , as explained more fully in sections IV.B and VII.C of this notice, the EPA believes that affirmative defense provisions that apply to startup, shutdown, or maintenance events are inconsistent with the requirements of the CAA on their face. Consequently , Wash. Admin. Code § 173 - 400 - 107, which applies to excess emissions that o ccur during startup, shutdown, and scheduled maintenance, is impermissible for this reason as well . Finally , while the EPA continues to believe that affirmative defense provisions applying to malfunctions can be consistent with the CAA as long as the crit eria set forth in the SSM Policy

are carefull y adhered to, as discussed in sections IV.B and VII.B of this notice, the criteria in Wash. Admin. Code § 173 - 400 - 107 are not sufficiently similar to those recommended in the EPA's SSM Policy to assure that the affirmative defense is available onl y in appropriately narrow circumstances. The EPA acknowledges that the SSM Policy

is only guidance concerning what ty pes of SIP provisions could be consistent with the requirements of the CAA . Nonetheless, through this r ulemaking , the EPA is proposing to determine that Wash. Admin. Code § 173 - 400 - 107 does not include criteria that are sufficientl y robust to qualify as an acceptable affirmative defense provision for malfunctions ( i.e. , "upsets") . For example, the defense available in Wash. Admin. Code § 173 - 400 - 107 is not limited to excess emissions caused by sudden, unavoidable, breakdown of technology bey ond the control of the owner or operator. Similarly , the provision contains neither a statement that the defense does n ot appl y in situations where

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Page 329 of 339 a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments nor a requirement that sources make an after - the - fact showing that no such exceedance occurred. As a result, the EPA believes that the provision is substantially inadequate to satisfy

the requirements of the CAA . c. The EPA's Proposal The EPA proposes to grant the Petition with respect to Wash. Admin. Code § 173 - 400 - 107 . The provision applies to startup, shutdown , and maintenance events, contrary to the EPA ' s interpretation of the CAA to allow such affirmative defenses onl y for malfunctions. Furthermore, the section of Wash. Admin. Code § 173 - 400 - 107 applying to "upsets" is inadequate because the criteria referenced are not sufficientl y similar to those recommended in the EPA's SSM Policy for affirmative defenses for excess emissions due to malfunctions . Finall y, the provision is unclear as to whether the EPA and the public could still seek injunctive relief if a state official made a determination that excess emissions were unavoidable. As a result, the EPA believes that Wash. Admin. Code § 173 - 400 - 107 is inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that the provision is substantially inadequate to meet CAA requirements and prop oses to issue a SIP c all wi th respect to the provision. **X. Statutory and Executive Order Reviews**  A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a

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Page 330 of 339 " significant regulatory

action " because it raises novel legal or policy issues . Accordin gl y, the EPA submitted this action to the Office of Management and Budget (OMB) for review under E xecutive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action . B. Paperwork Reduction Act This action does not impose an y new information collection burden. The EPA's proposed action in response to the Petition merely reiterates the EPA's interpretation of the statutory

requirements of the CAA and does not require states to collect any additional information. To the extent that the EPA proposes to grant the Petition and thus proposes to issue a SI P call to a state under CAA section 110(k)(5), the EPA is only proposing an action that requires the state to revise its SIP to compl y with existing requirements of the CAA. C. Regulatory Flexibility Act The Regulatory

Flexibility

Act (RFA) generall y requires an agency to prepare a regulatory

flexibility

analy sis of any

rule subject to notice - and - comment rulemaking requirements under the Administrative Procedure Act or an y other statute unless the

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Page 331 of 339 agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. 195 After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Courts have interpreted the RFA to require a regulatory flexibility anal ys is only

when small entities will be subject to the requirements of the rule. See, e.g. , Michigan v. EPA , 213 F.3d 663 (D.C. Cir. 2000); Mid - Tex Elec. Co - op, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985). This proposed rule will not impose any requirements on small entities. Instead, the propo sed action merely reiterates the EPA's interpretation of the statutory requirements of the CAA. To the extent that the EPA proposes to grant the Petition and thus proposes to issue a SI P call to a state under CAA section 110(k)(5), the EPA is only proposin g an action that requires the state to revise its SIP to comply

with existing requirements of the CAA. The EPA's action, therefore, would leave to states the choice of how to revise the SIP provision in question to make it consistent with CAA requirements and determining, among other things, which of the several lawful approaches to the treatment of excess emissions during SSM events will be

195 Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this notice on small entities, small entity is defined as: (1) a small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards (see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a cit y, count y, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any

not - for - profit enterprise that is independently owned and operated and is not dominant in its field.

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Page 332 of 339 applied to particular sources . We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act This rule does not contain a f ederal mandate that may

result in expenditur es of $100 million or more for s tate, local, and tribal governments, in the aggreg ate, or the private sector in an y one year . The action may impose a dut y on certain state governments to meet their existing obligation s to revise their SIPs to comply with CAA requirements, but with lesser expenditures. T he only costs of this action would be those associated with preparation and submission of a SIP revision by those states for which the EPA issues a SI P call. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA . This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory

requirements that might significantl y or uniquely affect small governments. The regulatory requirements of this action would appl y only to the states for which the EPA issues a SIP call. To the extent that such states allow local air districts or planning organizations to implement portions of the state's obligation under the CAA, the regulatory

requirements of this action would not significantl y or uniquely affect small governments becau se those governments have already undertaken the obligation to comply with the CAA. E. Executive Order 13132

– Federalism This action does not have federalism implications . It will not have substantial direct effects on the states, on the relationship be tween the national government and the

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Page 333 of 339 states , or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 because it will simply maintain the relationship and the distribution of power between the EPA and the states as established by the CAA. The proposed SI P calls are required by the CAA because the EPA is proposing to find that the current SIPs of the affected states are substantially inadequate to meet fundamental CAA requirements . In addition, the effects on the states will not be substantial because where a SIP call is finalized for a state , the SI P call will require the affected state to submit only those revisions necessary to address the SIP deficiencies and applicable CAA require ments. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specificall y solicits comment on this proposed rule from state and local officials . F. Executive Order 13175

– Consultation and Coordination with Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 20 00) . In this action, the EPA is not addressing an y tribal implementation plans . This action is limited to states . Thus, Executive Order 13175 does not apply

to this action . However, the EPA invites comment on this proposed action from tribal officials . G. Executive Order 13045

– Protection of Children from Environmental Health Risks and Safety Risks

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Page 334 of 339 The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as appl yi ng only to those regulatory

actions that concern health or safety risks, such that the analy sis required under section 5 - 501 of the EO has the potential to influence the regulation . This action is not subject to EO 13045 because it merel y prescribes the EPA ' s action for states regarding their obligation s for SIPs under the CAA. H. Executive Order 13211

– Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not a " significant energy action " as defined in Executive Order 13211 (66 FR 28355(May 22, 2001)), because it is not likely to have a significant adverse effect on the supply , distribution, or use of energy . This action merel y prescribes the EPA ' s action for states regarding their obligat ion s for SIPs under the CAA. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 ( " NTTAA " ), Public Law No. 104 - 113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical . Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary

consensus standards bodies . NTTAA directs the EPA to provide Congress, through OMB, explanations when the EPA decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards . Therefore, the EPA is not considering the use of an y voluntary consensus standards .

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Page 335 of 339 J. Executive Order 12898

– Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations Executive O rder 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice . It s main provision directs federal agencies, to the greatest extent practicable and permitted b y law, to make environme ntal justice part of their mission by

identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority

populations and low - income populations in th e U.S . The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low - income populations because it increases the level of environmental protection for all affected populations without having an y disproportionately high and adverse human health or environmental effects on any population, including any minorit y or low - income population. The rule is intended to ensure that a ll communities and populations across the aff ected s tate s , including minority , low - income and indigenous populations overburdened by pollution, receive the full human health and environmental protection provided by the C AA . This proposed action concerns states ’ obligations regarding the treatment the y give, in rules included in their SIPs under the CAA, to excess emissions during startup, shutdown, and malfunctions. This proposed action would require 36 states to bring their treatment of these emissions into line with CAA requirements, which w ould lea d to sources ' having greater incentives to control emissions during such events. K. Determination Under Section 307(d)

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Page 336 of 339 Pursuant to CAA section 307(d)(1)(U), the Administrator determines that this action is subject to the provisions of section 307(d). Sect ion 307(d)(1)(U) provides that the provisions of section 307(d) appl y to "such other actions as the Administrator may determine." L. Judicial Review Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final agency actions by

the EPA under the CAA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit (i) when the agency action consists of "nationall y applicable regulations promulgated, or final actions taken, by the Administrator," or (ii) when such action is locally or regionall y applicable, if "such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination." This rule responding to the Petition is "nationally applicable" within the meaning of sect ion 307(b)(1). First, the rulemaking address es a Petition that raises issues that are applicable in all states and territories in the U.S. For example, the Petitioner request ed that the EPA revise its SSM Policy with respect to whether affirmative defense provisions in SIPs are consistent with CAA requirements. The EPA's response is relevant for all states nationwide. Second, the rulemaking will address a Petition that raises issues relevant to specific existing SIP provisions in 39 states across the U.S. that are located in each of the 10 EPA Regions , 10 different federal circuits, and multiple time zones . Third, the rulemaking addresses a common core of knowledge and anal ys is involved in

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Page 337 of 339 formulating the decision and a common interpretation of the requireme nts of the CAA being applied to SIPs in states across the country . Fourth, the rulemaking, by addressing issues relevant to appropriate SIP provisions in one state, may have precedential impacts upon the SIPs of other states nationwide. Courts have found s imilar rulemaking actions to be of nationwide scope and effect. 196 This determination is appropriate because in the 1977 CAA Amendments that revised CAA section 307(b)(1), Congress noted that the Administrator's determination that an action is of "nationwid e scope or effect" would be appropriate for any action that has "scope or effect bey ond a single judicial circuit." H.R. Rep. No. 95 - 294 at 323 - 324, reprinted in 1977 U.S.C.C.A.N. 1402 - 03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits because the action on the petition extends to states throughout the country . In these circumstances, section 307(b)(1) and its legislative history authorize the Administrator to find the rule to be of "nationwide scope or effect" and thu s to indicate that venue for challenges to be in the D.C Circuit. Thus, any petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit . Accordingl y, the EPA is proposing to determine that this will be a rulemaking of nationwide scope or effect. In addition, pursuant to CAA section 307(d)(V), the EPA is determining that this rulemaking action will be subject to the requirements of section 307(d). 196 See, e.g. , State of Texas, et al. v. EPA , 2011 U.S. App. L EXI S 5654 (5th Cir. 2011) (finding SIP call to 13 states to be of nationwide scope and effect and thus transferring the case to the U.S. Court of Appeals for the D.C. Circuit in accordance with CAA section 307(b)(1)).

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Page 338 of 339 **XI. Statutory Authority**  The statutory

authorit y for this action is provid ed by CAA section 101 et seq. (42 U.S.C. 7401 et seq. ) .**Page 339**  **of 339**  **– State Implementation Plans: Response to Petition for** 

**Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to Amend**  **Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction**  **List of Subjects in 40 CFR Part 52** Affirmative defense, Air pollution control, Carbon dioxide, Carbon dioxide equivalents, Carbon monoxide, Environmental protection, Excess emissions, Greenhouse gases, Hy drofluorocarbons, Intergovernmental relations, L ead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone, Partic ulate matter, Perfluorocarbons, Reporting and recordkeeping requirements, Startup, shutdown, and malfunction, State implementation plan, Sulfur hexafluoride, Sulfur oxides, Volatile organic compounds .

________________________ Dated:

_________

________________ Gina McCarth y , Assistant Administrator .