# Response to Comments on February 2013 and September 2014 Proposals for Action, “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM

Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess

Emissions During Periods of Startup, Shutdown and Malfunction”

U.S. Environmental Protection Agency

May 2015Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

i 

## Table of Contents

1.0 Introduction ................................................................................................ 1

2.0 Affected State Rules ................................................................................... 2

2.1 Affected State Rules in EPA Region I ............................................................. 2

a. Maine ........................................................................................................... 2 b. New Hampshire ........................................................................................... 2

c. Rhode Island ................................................................................................ 5

2.2 Affected State Rules in EPA Region II ........................................................... 5

a. New Jersey ................................................................................................... 5

2.3 Affected State Rules in EPA Region III .......................................................... 6

a. Delaware ...................................................................................................... 6 b. District of Columbia .................................................................................. 11

c. Virginia ...................................................................................................... 14 d. West Virginia ............................................................................................. 17

2.4 Affected State Rules in EPA Region IV ........................................................ 25

a. Alabama ..................................................................................................... 25 b. Florida ........................................................................................................ 38

c. Georgia ...................................................................................................... 45 d. Kentucky .................................................................................................... 51

e. Mississippi ................................................................................................. 54 f. North Carolina ........................................................................................... 58
g. South Carolina ........................................................................................... 61 h. Tennessee ................................................................................................... 63

2.5 Affected State Rules in EPA Region V .......................................................... 65

a. Illinois ........................................................................................................ 65 b. Indiana ....................................................................................................... 67

c. Michigan .................................................................................................... 68 d. Minnesota .................................................................................................. 68

e. Ohio ........................................................................................................... 68 f. Wisconsin .................................................................................................. 76

2.6 Affected State Rules in EPA Region VI ........................................................ 76

a. Arkansas .................................................................................................... 76 b. Louisiana .................................................................................................... 76

c. New Mexico ............................................................................................... 81 d. Oklahoma ................................................................................................... 81

e. Texas .......................................................................................................... 82Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

ii 2.7 Affected State Rules in EPA Region VII....................................................... 89

a. Iowa ........................................................................................................... 89 b. Kansas ........................................................................................................ 90

c. Missouri ..................................................................................................... 91 d. Nebraska .................................................................................................... 92

2.8 Affected State Rules in EPA Region VIII ..................................................... 93

a. Colorado .................................................................................................... 93 b. Montana ..................................................................................................... 94

c. North Dakota ............................................................................................. 96 d. South Dakota ............................................................................................. 98

e. Wyoming ................................................................................................. 100

2.9 Affected State Rules in EPA Region IX ...................................................... 104

a. Arizona .................................................................................................... 104 b. California ................................................................................................. 108

c. Nevada ..................................................................................................... 108

2.10 Affected State Rules in EPA Region X ........................................................ 111

a. Alaska ...................................................................................................... 111 b. Idaho ........................................................................................................ 117

c. Oregon ..................................................................................................... 118 d. Washington .............................................................................................. 119Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

1 

## 1.0 Introduction

In light of the very large number of comments received as public submissions by the EPA on the proposed rulemaking and the sign ificant overlap among the many comments, this Response to Comments document prepared by the EPA does not respond individually to each comment. Rather, the EPA has in most cases summarized and provided a single response to distinct significant arguments, assertions, an d questions contained within th e totality of comments in the notice of final action issued May 22, 2015 (the “ notice of final action”). All public submissions may be found in the docket for the subject rulemaking (Docket ID No. EPA-HQ-OAR-2012- 0322, at http://www.regulations.gov ).

The summarized comments and responses provided in the notice of final action are not recreated here. Rather, this document is focused on comme nts received on the EPA’s initial proposal (February 2013 proposal) and supplemental propos al of September 2014 (supplemental notice of proposed rulemaking, or SNPR) that are related to the particular affected states. More specifically, this document includes a summary of all comments received from state and local agencies and responses to those comments. The EPA has chosen to individually address each comment made by state and local agencies on the proposed rulemaki ng, in recognition of the fact that the issuance of a SIP call re quires an affected state to take action to revise its SIP. In response to a SIP call, a state retains broad discre tion concerning how to revise its SIP, so long as that revision is consistent with the requirements of the CAA. As explained in deta il in the notice of final action, the EPA is issuing a finding that ce rtain SIP provisions in 36 states (applicable in 45 statewide and local jurisdicti ons) are substantially inadequate to meet CAA requirements and thus is issuing a “SIP call” for each of those 36 states. The EPA is also establishing a deadline of November 22, 2016, by which those states must make SIP submissions to rect ify the specifically identified deficiencies in their respective SIPs.

This document also includes a summary of and responses to comments by any member of the public that raised state-specific issues that the EPA did not believe were adequately addressed in the notice of final action.

In some cases, the responses in this document refer to one or more sections of the notice of final action that contain simila r or related responses.

Although some portions of the notice of final act ion are referenced or paraphrased in this document, to the extent any ambiguity is intr oduced by this referencing or paraphrasing, the notice itself remains the definitive statemen t of the rationale for the final action.

The EPA does not individually identify either in this document or in the notice each and every commenter who made a certain point in all inst ances, particularly in cases where essentially identical arguments were made by multiple commenters.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

2 

## 2.0 Affected State Rules

2.1 Affected State Rules in EPA Region I

a. Maine

We (the EPA) received no comments on the provisi ons of the Maine SIP at issue in this action that were so specific as to be included in this document.


### b. New Hampshire

1. Comment of the Department of Environmental Services, State of New Hampshire (NHDES) (0445)

Comment:

The NHDES noted that almost all of the New Ha mpshire SIP provisions at issue in the EPA’s proposal address opacity, most of which allo w a 6-minute-per-hour ex emption for startups, shutdowns, and boiler maintenance. The NHDES stat ed that the EPA’s reasoning for issuing the SIP call where these provisions are found to be substantially inadequate “is that emissions allowed by such exceptions could cause or cont ribute to violations of the NAAQS and PSD increment.” Comment 0445 at 2–3. The NHDES argued that for areas where air quality is in attainment with the PM 10 and PM 2.5 NAAQS, states should not be required to demonstrate in attainment plans “that visible emissions allowe d by [SSM] exceptions did not cause and will not” contribute to NAAQS violations. Id . at 3. NHDES further argu ed that automatic SSM exemptions “for opacity exceedances that last 6 minutes or less would not hamper the assurance of compliance with PM limits.” Id

. Response:

The EPA emphasizes that automatic exemptions from emission limitations are not consistent with the CAA, as the EPA has stated in its SSM Po licy interpreting the CAA with respect to SIP provisions since at least 1982. The NHDES was mist aken when it stated that the EPA determined that SIP provisions containing automatic exem ptions were substantially inadequate solely because “emissions allowed by [automatic exempti ons] could cause or cont ribute to violations of the NAAQS and PSD increment.” As the EPA explained in the February 2013 proposal, in accordance with the requirements of CAA s ection110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the definition of “e mission limitations” in CAA section 302(k), such emission limitations must be “continuous.” Thus, any excess emissions above the level of the applicab le emission limitation must be considered violations. 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 resp ect to emission limitations in SIPs. The EPA believes that inclusion of such an exemption in a SIP provision is a s ubstantial inadequacy and renders the specific SIP prov ision impermissible.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

3 Regarding NHDES’s comment that the EPA is basing its SIP call on a determination that the identified SIP provisions will allow emissions that could cause or contribute to violations of the NAAQS, the EPA believes this topi c is adequately addressed in th e notice of final action and directs readers to section VIII.D.7, “Comments that the EPA failed to consider how excess emissions resulting from SSM exemptions woul d affect compliance with specific NAAQS, including NAAQS with different averaging pe riods or different statistical forms.

Regarding NHDES’s comment that SIP provisions containing automatic exemptions for opacity standards would not hamper compliance with PM limits, the EPA believes this topic is adequately addressed in the notice of final acti on and directs readers to section VII.A.3.r, “Comments that exemptions in opacity standards should be permi ssible because opacity is not a NAAQS pollutant.”

Comment:

The NHDES commented that two provisions that the EPA proposed to find substantially inadequate, N.H. Code R. Env-A 902.03 and 902.04, are no longer in the New Hampshire SIP. Accordingly, the “NHDES requests that EPA remove the references to Env-A 902.03 and 902.04 in the final SIP call.” Comment 0445 at 3.

Response:

The EPA agrees with the comment. The EPA appro ved revisions to New Hampshire’s SIP on November 5, 2012 (77 FR 66388), that replaced these provisions with a new version of Env-A 900 that does not contain the deficient provisions identified in the Sierra Club’s petition or identified in the EPA’s proposal. C onsequently, Env-A 902.03 and 902.04 and the language contained in those sections (whi ch no longer exist under either state or federal law) have been removed from the final SIP call action, and the EPA denies the petition as moot with respect to these (former) provisions.

Comment:

The NHDES stated that the provision identified in the EPA’s proposal as N.H. Code R. Env-A 1203.05, which the NHDES notes is now Env-A 2103.02 in New Hampshire’s regulations, will be revised before the SIP call is finalized. More specifically, NHDES explains:

The revised and renumbered rule was submitted as a SIP revision in 2000. In 2004, the Env-A 2100 was readopted with amendments and renamed Particulate Matter and Visible Emissions Standards. The revised chapter was submitted as a SIP revision in 2005. Neither SIP submittal has been acted upon by the EPA. Since Env-A 2100 was due to expire last year, NHDES commenced timel y rulemaking proceedings to readopt it. EPA Region I commented on the proposed rules, noting that Env-A 2103.02 (formerly 1203.05) exempted certain sources from the visible emission standard during SSM events. The EPA referred the NHDES to the 1999 SSM Policy for guidance. In response, the NHDES issued a draft final proposal a nd held a public hearing on March 8, 2013. The draft final proposal eliminat ed the exemption and estab lished affirmative defenseResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

4 provisions for SSM.... [A] revised rule wa s adopted, effective April 23, 2013, without the affirmative defense language for [startups and shutdowns].

Comment 0445 at 3–4. The NHDES represented that it would submit this new provision to the EPA as a SIP revision no later than July 1, 2013. Accordingly, NHDES asked that “the EPA review the final rule before deciding to include it in the SIP call, as it addresses every concern expressed about Env-A 1203.05.” Id . at 4.

Response:

Upon closer examination, the EPA has identified that the most recent version of Env-A 1203.05 approved by the EPA into the New Hampshir e SIP no longer contai ns the language the EPA proposed to find substantially inadequate, including no referen ce to automatic exemptions during periods of startups and warm-ups. S ee 77 FR 66921 (November 8, 2012). Accordingly, because the New Hampshire SIP does not contain the language identified in the Sierra Club’s petition or identified in the EPA’s proposal, the EPA has removed Env-A 1203.05 from the SIP call, and the EPA denies Sierra Club's pet ition as moot with respect to Env-A 1203.05.
2. Comment of parties other than the state on the New Hampshire SIP

Comment:

One commenter noted that another provision of the New Hampshire SIP should be added to the present rulemaking action. According to commenter , “the first provision of Env-A 1202.04(a) is an illegal alternative emissions limit, lacking limitations EPA deemed required in response to similar provisions in the rulemaking action, namely, ‘specific, na rrowly-defined source categories using specific contro l strategies’ and six other limiti ng criteria.” Comment 0502 at 3. The commenter further alleged that “the second provision of Env-A 1202.04(a), styled as an alternative emissions limit ... functions as a de facto outright exemption provision, allowing 100 percent opacity for 1 out of every 8 hours for devices with auto matic sootblowers.” Id

. Accordingly, the commenter requested that th e EPA add “the illegal Env-A 1202.04 to the three other New Hampshire provisions found inadequate in the” notice of proposed rulemaking action. Id . The commenter believes that “[t]his would en sure that all changes required by the policy underlying this rulemaking to NH SIP section En v-A 1200 are made at once, removing the need for subsequent duplicative rulemakings and SIP revisions.” Id

. Response:

As noted in the February 2013 proposal, and as the commenter itself acknowledged, the EPA limited the scope of the February 2013 proposal to those state SIP pr ovisions explicitly listed in the Sierra Club’s Petition. The EPA believes this topi c is adequately addressed in the notice of final action and directs readers to section V.D.3, “Comments that the EPA should expand the rulemaking to include additional SIP provisions that the commenters consider deficient with respect to SSM issues.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

5 Even if the EPA were to address the adequacy of Env-A 1202.04(a) in this rulemaking action, as noted in a previous response, certain sections of Env-A 1200 have been revised and renumbered several times over the past decade. Without exp ressing any view regarding the validity of the provisions cited by the commenter, we note that the provisions are no longer present in the New Hampshire regulations at either Env-A 1200 or Env-A 2100. The NHDES submitted its most recent revision of Env-A 2100 to the EPA Region I office on July 23, 2013. The SIP revision was determined to be complete on January 23, 2014.

We are currently reviewing the revised version of Env-A 2100 and in the future (in a separate document) will propose to take action on the proposed SIP revision. While we express no view at this juncture regarding the approvability of Env-A 2100 as submitted, the rule no longer contains the provision th at the comment cites.



### c. Rhode Island

We received no comments on the provisions of the Rhode Island SIP at issue in this action that were so specific as to be included in this document.


### 2.2 Affected State Rules in EPA Region II

a. New Jersey

1. Comment of the New Jersey Department of Environmental Protection (NJDEP) (0127)

Comment:

The New Jersey Department of Environmenta l Protection (NJDEP) commented that the EPA should not make a finding of substantial inadequ acy regarding the New Jersey SIP and finalize a SIP call for the rule provision at N.J.A.C. 7: 27-7.2(k)2. NJDEP asserted that the provision in question “is no longer allowe d or used as part of New Jersey’s air program.” As a result, the state indicated that it intends to remove the provi sion at N.J.A.C. 7:27-7.2( k)2. Comment 0127 at 1. Further, NJDEP explained that “New Jersey is in the process of removing this outdated provision from the one air permit in the stat e that still has it.... The finali zation of this permit revision will address the concern expressed in USEPA’s proposed SIP call.” Id. at 2.

Response:

The EPA disagrees with the comment. The EPA r ecognizes that NJDEP has revised the only permit that still made use of N.J.A.C. 7:27-7.2(k) 2 to eliminate the use of this SSM provision. A revised permit was approved on April 22, 2013, and a copy was forwarded to the EPA to confirm that the only source that had been eligible to use N.J.A.C. 7:27-7.2(k)2 could no longer make use of this provision.

The EPA acknowledges that there are currently no sources making use of N.J.A.C. 7:27-7.2(k)2 in New Jersey and appreciates NJDEP’s action to el iminate the use of this provision. However,Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

6 the rule is still part of the federally approved New Jersey SIP. Unless the EPA issues a final rule approving a SIP revision that e liminates the deficient provisio n in rule N.J.A.C. 7:27-7, the provision remains in effect as a federally r ecognized part of the SIP. 42 U.S.C. § 7410(n)(1). Even if the provision is no longer utilized by the state, or even if the state amends its regulations to remove the provision, until the SIP is revised by the state and the revision is approved by the EPA, the provision remains part of the SIP.

Comment:

The NJDEP “agrees with USEPA’s conclusion that Sierra Club’s claim regarding [their] now expired rule” N.J.A.C. 7:27-19.1 “is moot.” Comment 0127 at 2.

Response:

The EPA acknowledges the supportive comment from the NJDEP. 

### 2.3 Affected State Rules in EPA Region III

a. Delaware

1. Comment of the Delaware Depa rtment of Natural Resources and Environmental Control (D elaware DNREC) (0570)

Comment:

The Delaware Department of Natural Resources and Environmental C ontrol (Delaware DNREC) was among commenters who generally argued that re quiring revision of exis ting state regulations to comply with the CAA will produce no environmental benefits. Delaware DNREC also commented, along with others, that the EPA’s proposed rulemaking action may result in increased air pollution emissions.

Specifically, Delaware DNREC commented that it “b elieves the provisions cited in this proposed rule help enable Delaware to establish require ments that ensure its emission sources are well controlled.” Comment 0570 at 3. De laware DNREC stated that th e Delaware SIP is currently designed to “contain[] tight em ission control requirements, al ong with an environmentally protective and administratively workable means to address startup and shutdown emissions.” Id

. at 4. Delaware DNREC also claimed that some of the emission limits established in its SIP “rely on technologies ... which [are] unable to functio n at peak efficiency during start-up.” Id . at 3–4. Delaware DNREC argued that if Delaware cannot keep the SIP pr ovisions identified as deficient in the EPA’s proposal, the state may not be able to have a program that is as protective of air quality. Id . at 4. Therefore, Delaware DNREC believed, “the EPA approach is not as protective of the NAAQSs as Delaware’s approach.” Id

.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

7 Response:

The EPA disagrees with this comment. The deficient provisions identified in the Delaware SIP, although structured as a permitting program, nonetheless function as unbounded director’s discretion provisions that allow revisions of otherwise applicable SIP em ission limitations. As explained in the February 2013 proposal and the no tice of final action, the EPA interprets the CAA to preclude SIP provisions t hat, in effect, allow revisions of the SIP without meeting the applicable CAA requirements for SIP revisions . Regarding the topic of why the EPA believes unbounded director’s discretion prov isions are not consistent with CAA requirements, the EPA believes this topic is adequately addressed in the notice of fi nal action and directs readers to section VII.A.3, “Substantia l Inadequacy of Director’s Discretion Provisions.”

The EPA appreciates the efforts of Delaware DNREC to ensure that all s ources are subject to appropriate emission limitations at all times. To the extent that it is appr opriate to establish an alternative emission limitation applicable to mode s of source operation at a particular source, such as during startup and shutdown, the EPA inte rprets the CAA to allow such an approach so long as the alternative emission limitation is a part of a co ntinuously applicable emission limitation, meets the requisit e level of stringency for the type of SIP provision at issue, and is legally and practically enforceable. Regarding th e topic of alternativ e emission limitations generally, the EPA believes this topic is adequa tely addressed in the notice of final action and directs readers to section VII.B, “Alternative Emission Limitations During Periods of Startup and Shutdown.”

Comment:

Delaware DNREC commented that the EPA’s proposed SIP call action “will do nothing more than impose an additional strain on State’s reso urces that will increase the complexity of our program but result in no air quali ty benefit.” Comment 0570 at 4.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.26, “Comments that a SIP call directing states to eliminate exemptions for excess emissions during SSM events is a ‘paper exercise’ or ‘exalts form over substance.’”

Comment:

Delaware DNREC disagreed with the EPA’s propos al to find that Section 1.5 of 7 DE Admin. Code 1104, Section 1.7 of 7 DE Admin. Code 1005, Section 1.2 of 7 DE Admin. Code 1108, Section 1.4 of 7 DE Admin. Code 1109, Section 1.3 of 7 DE Admin. Code 1114, Section 1.4 of 7 DE Admin. Code 1124, and Section 2.3.5 of 7 DE Admin. Code 1142 1 are substantially

1 The EPA identified these provisions as 7-1100-1104 De l. 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 in the notice of proposed rulemaking.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

8 inadequate to meet CAA requirements. Delawa re DNREC argued that th e these SIP provisions “do not exempt sources from standards,” but rather “allow for establishment of alternative limits that are very narrow in scope, and can only apply to equipment which operate in a continuous or extended steady state ( i.e. , when startup and shutdown are not normal occurrences).” Comment 0570 at 2. Delaware DNREC stated that these provisions are permissible because “[i]f no alternative limit is established in an operating permit then the SIP limits apply also during startup and shutdown” and therefore “at no time does Delaware’s SIP provide for any unit to be ‘exempted’ from being covered by an emission limitation.” Id

. Delaware DNREC argued that these alternative limits, established in the SIP provisions in question, are established in a way that is consiste nt with the CAA because other provisions in the Delaware SIP ensure that these alternative limits will not lead to any violation of any NAAQS. Id . For example, Section 2.0 of 7 DE Admin. C ode 1103 provides that “[n]o person shall cause the air quality standards specified in this Regulation to be exc eeded.” Similarly, Section 11.6 of 7 DE Admin. Code 1102 provides that “[n]o permit shall be issued by the Department unless the applicant shows to the satisfaction of the Department that the equipment, facility or air contaminant control device is designed to operate or is operating ... without interfering with the attainment or maintenance of Nationa l ... ambient air qual ity standards.”

Further, according to Delaware DNREC, any alte rnative limits must be established in an operation permit issued pursuant to 7 DE Admin. Code 1102 ( i.e. , through Delaware’s minor new source review regulations). The Delaware DNREC stated that “[Section] 1102 is a welldesigned program that ensures that sources of emissions are subject to appropriate emission controls as necessary in orde r to attain and maintain the NAAQS, protect PSD increments, protect visibility, and meet ot her statutory requirements.” Id . at 3. Also, the Delaware DNREC stated that “[a]ll 1102 permits are established through an open and predictable process that provides much constraint, review and oversight.” Id . Accordingly, Delaware DNREC argued that the “director discretion is not ‘unbridled’ relative to any permit requirements,” “[a]ll permit limits are required to be enforceable as a practi cal matter,” and “[a]ll permit terms and conditions ..., if violated, are subject to enforcement by EPA and by citizens in addition to the state agency.” Id

.
Therefore, the Delaware DNREC stated that it “believes that the EPA has incorrectly concluded that the cited Delaware provisi ons are substantially inadequate to meet CAA requirements.” Id

. Response:

The EPA disagrees with Delaware’s arguments in general and believes the SIP is substantially inadequate due to the inclusion of these relevant provisions , identified by the EPA in the February 2013 proposal as 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-Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

9 1114 Del. Code Regs § 1.3, 7-1100-1124 Del. Code Regs § 1.4, and 7-1100-1142 Del. Code Regs § 2.3.5. 2

As discussed in greater detail in the Februar y 2013 proposal, Delaware’s provisions allow for exemptions from otherwise applicable SIP emission limitations, which is inconsistent with the CAA requirements of sections 110( a)(2)(A), 110(a)(C), and 302(k). In each of the provisions, an exemption from the SIP’s emission limitations during periods of startup and shutdown is automatically granted if the source has an ope rating permit issued pursuant to 7-1100-1102 governing the said emissions. The EPA disagrees w ith Delaware DNREC that the Delaware SIP provisions do not allow the creation of exempt ions for emissions during SSM events. There is nothing in 7-1100-1102 limiting Delaware’s discre tionary authority to exempt such emissions completely through an operating permit, so thes e provisions provide the opportunity for an impermissible exemption from continuous emission limits.

These provisions further provide state offici als unbounded discretion to establish alternative limits for emissions, or to create an outright exemption for emissions, in permits. All of the aforementioned SIP provisions sp ecifically state that “...this Re gulation shall not apply to the start-up and shutdown of equipmen t which operates continuously or in an extended steady state when emissions from such equipment duri ng start-up and shutdown are governed by an operation permit issued pursuant to...,” which clearly allows Delaware DNREC to use its unbounded discretion to set emission limits or no emission limits during periods of source startup and shutdown. Were the st ate to exercise its discretion and decide on a case-by-case basis to create an outright exemption from the otherwise applicable SIP emission limitations, the EPA and citizens could be precl uded from enforcement.

While the CAA, as interpreted in the EPA’s SSM Policy, allows states to set source categoryspecific alternative emission limit ations or other forms of enfo rceable control measures or techniques that apply during peri ods of startup and shutdown, such alternative limitations are only permitted in a narrow set of circumstances and must be established through the appropriate SIP revision process. As explained in the Fe bruary 2013 proposal, the provisions of Delaware’s SIP purport to authorize the state unilaterally to establish alternativ e limitations for excess emissions during startup and shutdown on a case-by-case basis through the 7-1100-1102 permitting process, up to and including exemptions for such emissions. This does not comply with the Act, nor does it meet the criteria the EPA recommended in its SSM Policy, which limit alternative emission limits to situations where the alternativ e is narrow in scope and where controls are technically infeasible. The EPA’s SSM Policy includes recommendations to states concerning how to develop appropriate alternative emission limitations applicable to periods of source operation such as startup and shutdow n. The EPA disagrees with Delaware DNREC’s contention that its exemptions or alternative em ission limits are narrow in scope because, for

2 The EPA notes that 7-1100-1142 Del. Code Re gs § 2.3.5 has since been renumbered as 7-1100- 1142 Del. Code Regs § 2.3.1.6. See “Approval and Promulgation of Ai r Quality Implementation Plans; Delaware; Amendments to the Control of Nitrogen Ox ides Emissions From Industrial Boilers and Process Heaters at Petroleum Refiners,” 77 FR 28489 (May 15, 2012). The language in the provision, however, remained identical. In the final action, the EPA is therefore issuing a SIP call with respect to 7-1100- 1142 Del. Code Regs § 2.3.1.6.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

10 example, there are no limitations on category of s ources eligible for an alternative limit in the aforementioned regulations or in 7-1100-1102. Dela ware’s potential exemptions from otherwise applicable SIP emissions limits are open to m any source categories including sources as broad as “fuel burning equipment” or “industrial process operations.” Further, Delaware’s alternative emission limits are not established after consultation with the EPA or approval by the EPA and are not included in the SIP. Dela ware’s DNREC’s reliance on 7-1100-1102 is no remedy for the imperfections identified by th e EPA in the February 2013 proposal as none of the constraints or requirements in 7-1100-1102 suffic iently and completely a ddress the requirements for alternative emission limits of the CAA as interpreted in th e EPA’s SSM Policy. Regarding the topic of permit programs more generally, the EPA believes this topic is adequately addressed in the notice of final action and directs readers to section VII.C.3.e, “Comments opposed to the EPA’s approach on the premise that there is no ‘d irector’s discretion’ concern if the SIP provision creates a permit program through which state officials grant sources variances or exemptions from otherwise applicable SIP provisions.”

The EPA also disagrees with Delaware DNREC that its SIP provisio ns at 7-1100-1102 and 7- 1100-1103, which require permit limits to protect the NAAQS, are relevant to the issue of whether Delaware’s aforementioned regulations are substantially inadequate to meet CAA requirements. The EPA has explained that a provisi on that merely prohibits emissions that result in violations of the NAAQS is not a basis fo r exempting sources from continuous emission limits as required by CAA sections 110(a)(2)(A), 110(a )(2)(C) and 302(k). Such re strictions on causing violations of the NAAQS in permits may be a he lpful feature of the perm it, but they cannot be used to justify exemptions for violations duri ng SSM events. The CAA requirement for continuous emission limitations is a separat e legal requirement for SIP provisions, related not only to protection of the NAAQS and PSD increments, but also to serve other fundamental purposes such as making SIP provisions enforceable.

Regarding Delaware DNREC’s claim that its SIP provisions are consistent with CAA requirements because other provisions in the Delawa re SIP ensure that ther e will be no violation of any NAAQS. The EPA believes this topic is ad equately addressed in th e notice of final action and directs readers to section VIII.D.17, “Comments t hat because areas are in attainment of the NAAQS, SIP provisions such as automatic exemptions for excess emissions during SSM events are rendered valid under the CAA.”

Comment:

Delaware DNREC stated that it “has been permitting emission sources under 7 DE Admin. Code 1102 for more than 40 years,” and yet the EP A has failed to cite “one specific instance where inappropriate alternativ e startup or shutdown limits have been established.” Comment 0570 at 3. Instead of providing examples or a technical anal ysis, Delaware DNREC claimed that “the EPA makes broad statements in the proposal that imply that Delaware may be allowing dramatically higher amounts of emissions during periods of [startup and shutdown] that can swamp the amount of polluta nts emitted at other times.” Id

.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

11 Response:

The EPA disagrees that it was required to ident ify specific permits that contain emission limits allowing an inappropriate alternative emission limit for periods of startup and shutdown or to identify a specific environmenta l harm caused by any such inappropriate emission limits. The EPA has explained in the February 2013 propos al and the notice of final action why the Delaware SIP provisions at issue here are im permissible and are not in accordance with the CAA. Regarding Delaware DNREC’s argument t hat the EPA has to prove causation to have authority to issue a SIP call, the EPA believes this topic is adequat ely addressed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation to have authority to issue a SIP call,” and section VIII.D.2, “Comments that the EPA must make specific fact ual findings to meet the requirements of section 110(a)(2)(H)(ii) to have aut hority to issue a SIP call.”



### b. District of Columbia

1. Comment of the Government of th e District of Columbia, District Department of the Environment (0452)

Comment:

The District of Columbia’s Dist rict Department of the Environm ent (“the District”) commented to express its disagreement “with EPA’s decision to disallow alternativ e limits on stationary sources for visible emissions during SSM pe riods, as included in 20 DCMR Chapter 6, Sections 606.1 and 606.2.” 3 Comment 0452 at 2.

In the February 2013 proposal, th e District alleged, the EPA stat ed that the D.C. Mun. Regs. tit. 20 §§ 606.1 and 606.2 do not appear to comply w ith the CAA’s requirements as interpreted in the EPA’s SSM Policy because, for instance, the provisions were not lim ited to only apply to “specific, narrowly-defined source categories using specific control strategies.” 1999 SSM Guidance Attachment at 4–5. The District comment ed to express its disagreement with this determination. The District argued that because it is a “small jurisdiction that permits few different types of stationary sources—typically boilers and other fuel -combustion equipment,” Comment 0452 at 2, the SIP provisi ons are inherently specific a nd narrowly tailored to only a few source categories. The District further st ated that “it would be overly burdensome and unnecessary to specify s ource categories that are required (o r not required) to comply with a stationary source polic y during SSM periods.” Id . at 2.

Further, the District argued that its emissions limits for sources are already set so “exceptionally low” that “even with exceptions,” “the alternative limits in use do not hinder compliance with the NAAQS.” Id . at 2–3. Therefore, the Dist rict argued, the alternativ e limits for emissions during SSM periods established in D.C. Mun. Regs. tit. 20 (20 DCMR) §§ 606.1 and 606.2 should be allowed.

3 The EPA identified these provisions as D.C. Mun. Regs. tit. 20 §§ 606.1 and 606.2 in the notice of proposed rulemaking.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

12 Response:

The EPA understands that the Distri ct has fewer sources and a more limited number of source categories than do larger states. However, that fact does not excuse the District from meeting the requirements of the CAA for SIP provisions as interpreted in the EPA’s SSM policy. The 20 DCMR 606.1 and 606.2 still include alternative emission limits applicable during startup and shutdown conditions that were not establis hed in accordance with the CAA and the EPA’s interpretation of the Act as reflected in the SSM Policy. The EPA’s SSM Policy enumerates several criteria for establishing alternative emission limits that the EPA believes would be consistent with CAA requirements, including that such alternate limits be narrow in scope and justified by infeasibility of c ontrols during periods of startup and shutdown. The District’s small universe of potential sour ces at the present time does not sufficie ntly limit the alternative limit to a narrow category of sources. The 20 DCMR 606.1 and 606.2 apply in general to all fuelburning equipment.

In addition, the District’s argument that the alternative limits applic able during startup and shutdown do not hinder compliance with the NAAQS is not relevant to whether these regulations provide limits in contravention of fundamenta l requirements of the CAA for SIP provisions. Continuous emission limits are required by CAA sections 110(a )(2)(A), 11 0(a)(2)(C) and 302(k) regardless of compliance with NAAQS. The EPA be lieves this topic is ad equately addressed in the notice of final action and directs readers to section VIII.D.17, “Co mments that because areas are in attainment of the NAAQS, SIP provis ions such as automatic exemptions for excess emissions during SSM events are rendered valid under the CAA.”

As explained in detail in th e February 2013 proposal, the EPA believes that the CAA, as interpreted in the EPA’s SSM Polic y, permits alternativ e emission limitations during periods of startup and shutdown. However, the EPA interprets th e CAA to require that any such alternative emission limitations be properly developed to as sure that they are appr opriately limited. The EPA’s SSM Policy makes recommendations concerni ng factors relevant for developing such alternative emission limitations. As stated in the February 2013 proposal, the CAA “allow[s] states to develop alternative emission limitations or other forms of enforceable control measures or techniques that apply during startup or shutdown. The EPA be lieves that emission limitations in SIPs should generally be developed in the fir st instance to account for the types of normal operation outlined in D.C. Mun. Regs. tit. 20 § 606.1, such as cleaning, soot blowing, and adjustment of combustion controls.” The EPA has de termined that the alternatives provided in the District’s current provisi ons are not appropriately limited.

If the District wants to reeva luate its alternative emission limits and submit to the EPA a SIP revision that is in accordance w ith the CAA, as interpreted in the EPA’s SSM Policy, the District may do so.

Comment:

The District commented that its SIP includes alternative emission limits for excess emissions during startup, cleaning, s oot-blowing, adjustment of combustion controls, or malfunction ofResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

13 equipment, “at least in part be cause the current and longstanding visible emissions standard in the District is zero percent.” Comment 0452 at 2. The District commented that without alternative emission limits, the zero percent visibl e emissions standard “would almost always be exceeded during SSM events and would therefore be unattainable and unenforceable.” Id . at 3. The District argued that its zero percent emissions standard, “eve n with exceptions,” achieves equivalent or lower levels of emissions. Id

. Response:

The District’s argument that compliance with a zero percent limit for visible emissions is difficult is not relevant to whether the alternative lim its set by the District ’s regulation are in contravention of CAA requirements. As discusse d in the EPA’s SSM Policy, state regulators have the option of enforcement discretion for situations (such as, as the District hypothesi zes, due to a zero percent opacity standard) when comp liance is beyond cont rol of a source.

The District may also opt to re vise its opacity standard in acco rdance with CAA requirements or could submit alternative emissi on limits for visible emissions during defined modes of source operation such as startup and shutdown as a SIP revision, in order to address CAA requirements, as interpreted by the EPA in its SSM Policy.

Regarding the District’s argument that its SIP provisions are necessary to make opacity limits attainable and enforceable, the EPA believes this topic is adequat ely addressed in the notice of final action and directs readers to section VII. A.3.h, “Comments that exemptions or affirmative defenses are not only not prohi bited, but are actually require d by the CAA because they are necessary to make an emission limit ation ‘reasonable’ or ‘achiev able’ for sources that cannot comply during SSM events.”

Comment:

The District commented that it wi ll reevaluate D.C. Mun. Regs. tit. 20 § 107.3 to ensure that it meets CAA requirements. The Distri ct agreed that this provision “allows the Mayor to continue or discontinue the opera tion of a stationary source duri ng SSM periods in a discretionary manner” and therefore “is not enforceable or otherwise bounded, and may excuse excess emissions without treatment as a violation.” Comment 0452 at 3.

Response:

The EPA acknowledges the District’s willingne ss to reevaluate and adjust provisions, as necessary, to meet the applicab le requirements of the CAA.

Comment:

The District agreed with the EP A’s proposal to deny the petition w ith respect to D.C. Mun. Regs. tit. 20 § 805.1(c)(2). Emergency standby generators that operate less than 500 hours per year “constitute a source-specific category, the regu lation of which is not necessary in the NOx RACT portion of the SIP to meet RACT requireme nts or other CAA requirements in this area.” Comment 0452 at 3.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

14 Response:

The EPA acknowledges the Dist rict’s supportive comment.


### c. Virginia

1. Comment of the Virginia Department of Environmental Quality (0613)

Comment:

The Virginia Department of Environmental Qual ity (Virginia DEQ) claimed that the EPA’s SIP call is, at least in part, premised on the EPA’s beli ef that SIP provisions are contrary to the Act as interpreted in the EPA’s SSM policy. The Virgin ia DEQ stated that “ it is highly questionable whether a SIP call can be premised on mere gui dance such as the SSM Policy,” which was not subject to notice and comment rulemaking. Comment 0613 at 12.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.14, “Comments that th e EPA inappropriately is ‘using guidance’ as a basis for the SIP call action.”

Comment:

The Virginia DEQ noted that the Virginia provi sion at issue in the EPA’s initial proposal was approved by the EPA into Virginia’s SIP in 2000, which was subsequent to the issuance of the EPA’s SSM policy in 1999. The Virginia DEQ stat ed that presumably the EPA considered the Virginia provision at issue “to be in accord wi th the SSM Policy when it approved that section for incorporation into the Virg inia SIP.” Comment 0613 at 12. If the EPA believes the former approval to be a mistake, the Virginia DE Q commented, the EPA “could have invoked its authority under § 110(k)(6) of the Act to revoke its approval and correct the error.” Id

. Therefore, the Virginia DEQ claimed, the SIP call challenges the adequacy of the Virginia SIP regulation based on a “ post hoc re-interpretation of a previous interpretation of an interpretation of the Clean Air Act.” Id . at 13.

Response:

The EPA disagrees with the commenter. Section 1 10(k)(5) provides that the EPA can issue a SIP call “whenever” it determines that an existing SIP provision is substantia lly inadequate to meet CAA requirements. Thus, the EPA has authority to issue a SIP call for a de ficient SIP provision regardless of when it was initially approved. By definition, the EPA’s autho rity to issue a SIP call includes the authority to require states to re vise SIP provisions that the Agency previously approved into the SIP, whether or not that appro val was consistent with the CAA at the time of the prior action. Thus, Virginia DEQ’s argument that this SIP call is based on a “post hoc” interpretation of the CAA is simply in error. The EPA agrees that it also has authority underResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

15 section 110(k)(6) to issue an error correction to address existing SIP provisions. In this action, however, the EPA has determined that proceedin g under section 110(k)(5) is the preferable course of action for reasons explained in detail in the February 2013 proposal.

The EPA notes that this topic is more fully addr essed in the notice of final action and directs readers to section VIII.D.6, “Comments that the EPA cannot issue a SIP call for an existing SIP provision unless the provision wa s deficient at the time the st ate originally developed and submitted the provision for EPA approval.”

Comment:

The Virginia DEQ was among commenters who gene rally stated that the EPA should review SIP provisions in context and consider the state’s SIP as a whole.

Response:

The EPA disagrees with the basic pr emise of this argument, i.e., that individual SIP provisions do not need to meet fundamental CAA requireme nts for SIP provisions. The thrust of this argument is that emissions limitations in SIP pr ovisions can contain ex plicit exemptions or affirmative defenses applicable to emissions duri ng SSM events, so long as the state’s SIP as a whole imposes other generic obli gations upon the relevant sources.

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.13, “Comments that EPA has to evaluate a SIP ‘as a whole’ to have the authority to issue a SIP call.”

Comment:

The Virginia DEQ was among commenters who gene rally stated that the EPA should respect the federal-state partnership mandate d by the CAA and leave the state regulations at issue in the proposal in place. The Virginia DE Q stated that the regulatory provisions in the Virginia SIP “have all undergone notice and comment rulemaking at the state level, an d then were thoroughly reviewed by EPA in another no tice and comment process before finally being approved by the agency for incorporation into the SIP.” Comm ent 0613 at 13–14. The Virginia DEQ stated that the SIP call disregards the federal-state partnership.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

The Virginia DEQ commented that the EPA “should carefully consider comm ents from affected states” because “[s]tate air pollu tion control programs...are comp licated.” Comment 0613 at A-2.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

16 Response:

The EPA appreciates and agrees with the comme nt from the Virginia DEQ. The EPA has endeavored to review and carefully consider all comments from Virginia and other states received on this proposed action.

Comment:

The Virginia DEQ commented that the “EPA shoul d not impose a ‘one size fits all’ solution on the states affected by this proposal,” but rather “solutions to fix a lleged deficiencies in individual SIPs should be custom-tailored to individua l state air programs.” Comment 0613 at A-2.

Response:

The EPA agrees that a “one size fits all” approa ch is not appropriate for SIP provisions and that states may elect to develop SIP provisions that address emissions from sources in the ways that they think most appropriate, so long as those provisions meet applicable statutory and regulatory requirements for SIP provisions. Since at least 1982, the EPA has provided guidance to states concerning how to address emissions from sources during SSM events. In the final action, the EPA is clarifying, upda ting, and revising its interpretati ons of the CAA in the SSM Policy in order to provide states with updated and comprehensive guidance. The EPA is not imposing any “one size fits all” approach in this action and is mere ly directing states with SIP provisions that fail to meet fundamental C AA requirements to revise those provisions and providing guidance concerning the range of approac hes that the affected states may wish to consider. So long as the SIP submissions in re sponse to this SIP Call meet CAA requirements, the states may adopt whatever approach they deem most fitting.

Comment:

Virginia DEQ stated that the SIP call fails to de monstrate that the Virginia SIP is “substantially inadequate” under § 110(k)(5) of th e CAA. According to the commen ter, the SIP call does not state that the identified Virginia SIP provision violates the CAA directly; rather, the rulemaking action is premised on an argument that the SIP provision is contrary to the EPA’s SSM Policy. The commenter believes that a SIP call ca nnot be premised on mere guidance.

Virginia DEQ stated that, absent clear evid ence that the Virginia SIP is “substantially inadequate” to meet the requirements of the CAA and is not merely at odds with the EPA guidance, the EPA should respect the federal-st ate partnership required by the Act and leave 9 VAC 5-20-180.G in place.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.14, “Comments that th e EPA inappropriately is ‘using guidance’ as a basis for the SIP call action” and section VIII.D .5, “Comments that the EPA’s interpretation of substantial inadequacy would override state di scretion in development of SIP provisions.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

17 

### d. West Virginia

1. Comment of the West Virginia Department of Environmental Protection (DEP) (0614)

Comment:

The West Virginia Department of Environmental Protection (D EP) commented that the EPA’s proposal “is not the sort of c ooperative regulation that Congre ss envisioned when the CAA was enacted.” Comment 0614 at 4.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

The West Virginia DEP comments that through the proposed action, the “EPA is changing its SSM policy,” and “a SIP Call is not a vehicle for EPA to require revisions in light of a change in EPA policy.” Comment 0614 at 7. The West Virginia DEP argues that “[i]f EPA believes that the CAA precludes SSM exclusions, it should withdraw this proposal and adopt rules that reflect its conclusion by amending 40 C.F.R. Part 51.” Id . at 8.

In the alternative, if the EPA is not changing its policy, the West Virginia DEP argues that the “EPA should never have approved the West Virg inia regulations that it alleges provide for automatic exemptions.” Id. Under this alternate scenario, the West Virginia DEP believes that a separate provision of the Act should be used, CAA section 110(k)(6). The West Virginia DEP states that “a SIP Call is not a vehicle for EPA to correct a SIP that should not, based on circumstances known at the time of approva l, been approved in the first place.” Id

. Response:

The EPA disagrees with these comments. With th e exception of affirmative defense provisions, the EPA’s action on the Petition is c onsistent with its interpretati on of the CAA as explained in iterations of the SSM Policy in 1982, 1983, 1999 and 2001. With respect to affirmative defense provisions, the EPA is revising its interpretation of the CAA in accordance with a recent decision in which the U.S. Court of Appeals for the D.C. Circuit conclude that the Agency does not have authority to promulgate regulations that purport to alter or elim inate the jurisdiction of the courts to determine liability and impose remedi es for violations of CAA requirements. By extension of the logic of that decision, states likewise have no such authority. Thus, the EPA’s action is not a “change of policy” as asserted by the commenter.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

18 The EPA agrees that in addition to its authority unde r section 110(k)(5) to issue SIP calls, it also has authority under section 110(k)(6) to i ssue an error correction under appropriate circumstances. In this acti on, however, the EPA has determ ined that proceeding under section 110(k)(5) is the preferable course of action for reasons explain ed in detail in the February 2013 proposal. The EPA believes this topic is addressed in more deta il in the notice of final action and directs readers to section VIII.D.6, “Comments that the EPA cannot issue a SIP call for an existing SIP provision unless the pr ovision was deficient at the time the state originally developed and submitted the provision for EPA approval.”

Regarding West Virginia DEP’s argument that the EPA should not fi nalize this action and instead adopt new regulatory t ext, the EPA believes th is topic is adequately addressed in the notice of final action and directs readers to section V.D.4, “Comments that the EPA should create regulatory text in 40 CFR Part 51 to forb id SSM exemptions in SIP provisions if the CAA precludes them.”

Comment:

The West Virginia DEP stated that the EPA’s proposed rule making action is based on an unreasonable reading of the CAA section 302(k) re quirement that an “emission limitation” apply on a “continuous basis.” Comment 0614 at 4. Th e West Virginia DEP claimed that the “continuous basis” language in C AA section 302(k) “simply requires that emissions standards be maintained continuously within each category of operations, which is contrary to the EPA’s interpretation that “the same standa rd apply to every type of emission.” Id . The commenter further stated that “[e]missions that occur during SSM must be subject to a continuous limitation, and emissions that occur during regular operation s may be subject to a different, but also continuously applied, limitation... [A ]ll of these different standard s together form a ‘continuous’ limitation.” Id

. The West Virginia DEP disagreed with the EPA’s view that the SIP provisi ons at issue in this action do not impose a “continuous” limit on em issions because of other general duty requirements. The West Virginia DEP argued th at its “emissions regulations satisfy this requirement” that an emission lim itation apply on a continuous ba sis because “[t]he regulations obligate sources to minimize their emissions during SSM events to the greatest extent consistent with safety and good air po llution control practices.” Id . at 5.

Response:

The EPA agrees with the West Virginia DEP t hat the CAA does not require that an emission limitation apply the same exact limit (whether expre ssed numerically or otherwise) at all times to all sources in all circumstances in order for th at emission limitation to meet the section 302(k) requirement that it apply on a “continuous basis .” The EPA believes this topic is adequately addressed in the notice of final action and direct s readers to section VII. A.3.j, “Comments that an emission limitation can be ‘continuous’ even if it has different num erical limitations applicable during some modes of source operation or has a combination of numerical emission limitations and specific control t echnologies or work practices applicable during other modes of operation.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

19 However, the EPA disagrees with the second part of West Virginia DEP’s comment. The fact that a state’s regulations requi re sources to minimize emissi ons during SSM “to the greatest extent consistent with safety and good air pollution control practices” is not sufficient to ensure that an emission limitation applies to that sour ce on a continuous basis at all times. The EPA believes this topic is adequately addressed in the notice of fi nal action and directs readers to section VII.A.3.m, “Comments that a ‘gener al duty’ provision—or comparable generic provisions that require sources to ‘exercise good engineering j udgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’ —i noculate or make up for exemptions in specific emission limitations that apply to the source.”

Comment:

The West Virginia DEP was among other commenters generally stati ng that SIPs have been and continue to be actively enforce d, particularly in citizen suits, and disagreed that the EPA and citizen enforcement is hindered by SSM provisi ons. Specifically, the West Virginia DEP commented that the EPA failed to “identify any instance in which EPA or a citizen has been precluded from taking civil action in West Virg inia because of any SSM provision in any state rule.” Comment 0614 at 4.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.22, “Comments that th e EPA’s position that SIP provisions such as automatic exemptions for excess emissions during SSM events hinder effective enforcement for violations is incorrect, bec ause there have been a number of citizen suits brought under the CAA.”

Comment:

The West Virginia DEP was among commenters that generally alleged that the EPA is changing its SSM Policy with inadequate explanation. In pa rticular, the West Virgin ia DEP alleges that the “EPA is most certainly changing its SSM polic y,” but “has offered no rational basis for its change.” Comment 0614 at 10.The We st Virginia DEP believes this is a violation of the APA because that statute requires the EPA “acknowledg e that it actually is changing policy” and “do so based on a rational basis.” Id . at 9.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VII.A.3.n, “Comments that EPA’ s action on the petition is a ‘change of policy’” and section V.D.8, “Comments that the EPA’s action violates procedural requirements of the CAA or the APA, because the EPA is acting on the Petition, updating its SSM Policy and applying its interpretation of the CAA to specific SIP provisions in one action.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

20 Comment:

The West Virginia DEP was am ong commenters who stated that the proposed SSM rulemaking action fails to comply with the Administrative Procedure Act (APA). According to the West Virginia DEP, “[a]ctual factual findings and reco rd-based rational explan ation are required for agency action” under the APA because the APA requi res that “an agency must show that it has examined the relevant data and articulate d a satisfactory explan ation for its action.” Comment 0614 at 9 (internal quota tion deleted). According to the commenter, because the “EPA has made no effort to make any factual fi ndings regarding actual SSM emissions in West Virginia and whether such emissions exceed or co ntribute to an exceedance of the NAAQS,” the proposed rule is “arbitrary, cap ricious, and contrary to law.” Id

. Response:

The EPA disagrees with the commenter with respect to this issue. In the February 2013 proposal and SNPR, the EPA provided a detailed explanation of the basis for this action. In short, the EPA is promulgating a SIP call to address identified legal deficiencies in specific provisions of the West Virginia SIP. As explained in deta il in the February 2013 proposal, the SNPR and the notice of final action, the EPA does not interpre t the CAA to require proof that the SIP provisions at issue caused a sp ecific violation of the NAAQS or interfered with a specific enforcement action in order to establish that the provisions violate CAA requirements. The EPA believes that the fact that these provisions fail to meet fundamental requ irements of the CAA for SIP provisions is sufficient.

The EPA believes these topics are addressed more fully in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP ca ll,” and section VIII.D.2, “Comments that the EPA must make specific factual findings to meet the requirements of section 110(a)(2)(H)(ii) to have authority to issue a SIP call.”

Comment:

The West Virginia DEP was among commenters who generally stated that, to impose a SIP call, the EPA must make its finding based on availabl e information. Specifically, West Virginia DEP commented that “[t]he specific requirement” of section 110(k)(5) of the Act “that EPA ‘find’ substantial inadequacy commands that EPA review evidence and make factual determinations to support a SIP call.” Comment 0614 at 6. The West Virginia DEP states that here the EPA “fail[ed] to make any factual findings whatsoever ,” and accordingly, the “E PA has fallen short of satisfying its prerequisite obligations to issue a SIP call.” Id

. Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.2, “Comments that the EPA must make specific factual findings to meet the requirements of section 110(a)(2)(H)(i i) to have authority to issue a SIP call.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

21 Comment:

The West Virginia DEP commented that the state has a “robust history of air pollution control,” and only two counties in the state “exceeded th e most recent NAAQS.” Comment 0614 at 2. The West Virginia DEP alleges that these facts “d irectly contradict[] EPA’ s allegation that West Virginia’s SSM ‘exemptions’ are compromising West Virginia’s general ability to maintain the NAAQS.” Id . at 3. Similarly, the West Virginia DEP poi nts out that the “EPA has not identified any instance in which a NAAQS was violated as a result of a SSM provision in the West Virginia SIP.” Id . at 3–4.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.17, “Comments that bec ause areas are in attainment of the NAAQS, SIP provisions such as automatic exempti ons for excess emissions during SSM events are rendered valid under the CAA” and section VIII.D .1, “Comments that sec tion 110(k)(5) requires the EPA to ‘prove causation’ to hav e authority to issue a SIP call.”

Comment:

The West Virginia DEP claimed the proposed rule making action is arbitrary and capricious, and in violation of the APA, because it is inconsistent with existing statutes or regulations. The West Virginia DEP asserted that “[a] rule is arbitrar y if it is inconsistent wi th existing statutes or regulation,” and claimed this invalidates the EPA’s proposal because the “EPA’s position that States may not provide for SSM exemptions co ntradicts EPA’s own emissions regulations.” Comment 0614 at 10. In particular , the West Virginia DEP claime d that several EPA regulations for New Source Performance Standards (NSPS) a nd National Emission Standards for Hazardous Air Pollutants (NESHAP) provide that excess emissions from SSM are not violations.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.a, “Comments that the EPA’s proposed action on the Petition is incorrect because some of the Agency’s own regulations contain exemptions for emissions during SSM events.”

Comment:

The West Virginia DEP commented that, particul arly in this case “where the CAA mandates a cooperative regime,” the EPA should not declare th e SIP provisions at issue “insufficient when they are taken out of context.” Comment 0614 at 11. The West Virginia DEP stated that “a variety of mechanisms, beyond those identified by EPA, significantly constrain SSM excess emissions in West Virginia,” including “other pr ovisions within the rules themselves; provisions in other state rules (including fe deral provisions which the state has incorporated by reference); provisions contained in federally enforceable pe rmits; EPA oversight of West Virginia’s AirResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

22 Program, including permitting and enforcement; and the statutory duty applicable to any person [natural or artificial] not to cause statutory air pollution.” Id

. Response:

The EPA disagrees with West Virginia that th e EPA has misunderstood the purpose and effect of the regulations identified in the February 2013 pr oposal as containing exem ptions of emissions during SSM events, unbounded director discretio n, and alternative emission limits for SSM events which do not comply with the CAA and th e EPA’s interpretation of continuous emission limits as interpreted in the SSM Policy. As explained in detail in the February 2013 proposal, these West Virginia provisions are not in a ccord with requirements for continuous emissions limits as required by sections 110(a)(2)(A) , 110(a)(2)(C) and 302(k). The West Virginia regulations identified in the February 2013 proposal clearly on their face provide exemptions for excess emissions during SSM events or provide a lternative emission limits applicable to SSM events which are not in accord with the C AA as interpreted in the EPA’s SSM Policy.

While the West Virginia SIP may contain additio nal emission limits, these additional measures do not cure the deficiencies the EPA has identified with the speci fic West Virginia regulations addressed in this action. Enforcemen t of continuous emission limits is still barred by these West Virginia exemptions regardless of the alleged “ backstops” West Virginia believes its SIP has through NESHAP requirements or through “weight em ission standards.” Additionally, the West Virginia permit requirements in the SIP do not cure any of the deficiencies identified by the EPA in the February 2013 proposal. West Virginia’s permit requirements merely provide for inclusion in a permit of the improper exemptions or alternative emission restrictions in addition to the many other requirements applicable to a gi ven source, but do not restore the EPA’s ability to enforce for violations due to excess emissi ons otherwise exempted or provide any further restrictions on alternative emissi on limits such that those limits would then comport with the CAA as interpreted in the EPA’s SSM Policy. Th e EPA believes the West Virginia requirements identified in the February 2013 pr oposal conflict with fundamental requirements in the Clean Air Act when viewed on their face. For further discussion of this topic, readers may refer to section VIII.D.13, “Comments that EPA has to ev aluate a SIP ‘as a whole’ to have the authority to issue a SIP call.”

Further, the EPA disagrees with West Virginia that the EPA’s action is improper and that our interpretation of West Virginia’s SIP provisions differs from the stat e’s interpretation. The EPA and West Virginia may disagree regarding whether the CAA allows exemptions for excess emissions during SSM events, and we may disagree regarding our interpre tation of requirements of sections 110(a)(2 )(A), 110(a)(2)(C) and 302(k) which the EPA interprets as requiring continuous emissions limits and prohibiting auto matic exemptions of excess emission events. However, the EPA does not believe we are interpre ting the West Virginia regulations in a manner different from how the stat e interprets them. The West Virg inia regulations identified in the February 2013 proposal clearly on their face provide exempti ons for excess emissions during SSM events and preclude them from being treate d as violations or provide inappropriate alternative emission limits applicable to SSM events.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

23 Comment:

The West Virginia DEP stated that the EPA ha s misconstrued West Virginia’s SIP provisions applicable to emissions during SSM events. The West Virginia DEP argued that the SIP provisions identified as deficient in the February 2013 proposal “do not have the effect that EPA claims they do.” Comment 0614 at 11. The West Virginia DEP argued that “the Proposed Rule takes West Virginia’s SSM provisions out of cont ext, both within the specific state rules and when considered within the state’s holistic, inte grated air program.” Id. Further, the commenter claimed that “West Virginia’s SIP rules do not provide unbounded discretion to the Secretary of WVDEP [to] determine whether or not excess emi ssions constitute a violation” because “[i]n many cases, a state official’s discretion to ex ercise his or her enforcement authority is constrained by a variety of factors.” Id. at 12.

Response:

The EPA disagrees that the West Virginia SIP pr ovisions addressed in th is action do not warrant a SIP call. As explained in the February 2013 pr oposal, portions of West Virginia’s regulations are impermissible and not in accordance with the CAA.

The EPA also disagrees that we exa mined the West Virginia regulati ons out of context or that we failed to examine other provisions within the West Virginia SIP. As discus sed in greater detail in the February 2013 proposal, West Virginia’s provis ions allow for automa tic exemptions from emission limitations. W. Va. Code R. s. 45-2-9.1 and W. VA. Code R s. 45-7-10.3 explicitly state that the emission limits do not apply or that certain operations “shall be exempt” during periods of startup, shutdown, malfunction or maintenance. Additionally, W. Va. Code R. s. 45-40-100.8 provides that requirements for monitoring, recordkeeping, and reporting will not apply under certain circumstances. The aforementioned prov isions allow for exemptions from otherwise applicable SIP emission limitati ons, which is inconsistent with the fundamental CAA requirements of sections 110(a )(2)(A), 110(a)(C), and 302(k) for continuous emissions limits making them impermissible and the West Virginia SIP therefore substantially inadequate.

Additionally, the EPA believes the in clusion of the following provis ions, identified by the EPA in the February 2013 proposal as W. Va. Code R. s. 45-2-10.1, W. Va. Code R. s. 45-3-7.1, W Va. Code R. s. 45-5-13.1, W Va. Code R. s. 45-6-8.2, W Va. Code R. s. 45-7-9.1, W Va. Code R. s. 45-10-9.1, 45-21-9.3 are also impermissible an d substantially inadequa te. These provisions create ad hoc exemptions by allowing state of ficials to determine if excess emissions during startup, shutdown, load change, or emergencies ar e violations of the applicable emissions limitations, therefore allowing disc retionary exemptions that could preclude enforcement by the EPA or through a citizen suit for instances of excess emissions during SSM events.

The provisions further provide st ate officials unbounded di scretion to establish alternative limits, or to create an outright exemp tion from the otherwise applicab le SIP emission limitation. The aforementioned SIP provisions all clearly provid e that the Director or Secretary “...may grant an exception...” to otherwise applicable emission limits or that excess emissions “...may be permitted...” when unavoidable malfunctions of equipment occurs. The EPA believes these provisions allow West Virginia officials to us e unbounded discretion to se t emission limits or noResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

24 emission limits during times of startup, shutdow n, and malfunction, because as articulated in the February 2013 proposal, “...these provisions purpor t to make a state official the unilateral arbiter of whether the excess emissions in a given malfunction, maintenan ce, or emergency event constitute a violation.” Were th e 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 without any requirements for further public process at the state or fe deral level, the EPA and citizens could be precluded from enforcement.

The EPA disagrees with West Virgin ia that measures such as re quirements that excess emissions not endanger the public health or safety or that malfunctions be unavoidable are cures for the inappropriate director’s discreti on in West Virginia’s regulati ons identified in the February 2013 proposal. The EPA believes that the provisio ns at issue allow for unbounded director’s discretion, authorizing the state official to judge t hat violations have not occurred even though the emissions exceeded the applicable SIP emi ssion limitations. These director’s discretion provisions therefore vest the st ate official with unilateral powe r to grant exemptions without additional public process at the state or federa l level. Excess emissions above the level of the applicable SIP emission limitation must be considered violations, wh ether or not the state elects to exercise its enforcement discretion.

2. Comment of the West Virginia DEP (1131)

Comment:

The West Virginia DEP was among commenters who generally stated that the EPA failed in the SNPR to establish that the identified SIP provisi ons are “substantially inadequate,” as required by CAA section 110(k)(5).

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.20, “Comments that th e EPA has failed to show state SIPs are substantially inadequate, as is re quired to promulgate a SIP call.”
3. Comment of West Virginia Offi ce of the Attorney General (1090)

Comment:

The Attorney General of West Virginia was am ong commenters who stated that the EPA lacks authority to issue a SIP call as proposed in the EPA’s SNPR.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.20, “Comments that th e EPA has failed to show state SIPs are substantially inadequate, as is requ ired to promulgate a SIP call.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

25 Comment:

The Attorney General of West Virginia was among commenters who stated that the EPA’s SNPR was arbitrary and capricious and fails to comply with the Ad ministrative Procedures Act.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.17, “Comments that the EPA is changing its policy on affirmative defenses, which is arbitrary and capricious and an impermissible basis for a SIP call.” 

### 2.4 Affected State Rules in EPA Region IV

a. Alabama

1. Comment of the Alabama Department of Environmental Management (ADEM) (0381, 0447)

Comment:

ADEM commented that Alabama’s startup a nd shutdown provisions in the SIP are not unbounded. ADEM noted that, in order to take advant age of these provisions, an applicant must meet many requirements, including providing in formation to ADEM that shows why emission standards cannot be met and writing specific cond itions which define startup and shutdown into permits. ADEM also noted that these permits contain a general duty clause requiring the minimization of emissions at all times, includi ng during startup and shutdown, and the permits are subject to comment by the EPA and the public.

ADEM also stated that, under Alabama’s “eme rgency” SIP provision, th e Director of ADEM may only deem an emission exceedance to not be a violation if the permittee follows strict protocols, ADEM reviews extensive information on the incident, and ADEM determines that the exceedance could not have been reasonably avoided.

Response:

The EPA understands that exemptions provided to sources under Ala. Admin Code Rule 335-3- 14-.03(1)(h)(1) are intended for emission standards which a sour ce owner believes cannot be met during startup and shutdown events and that the permits in which such exemptions are included require the minimization of emissions at all times and are subject to comment by the EPA and the public. However, as stated in the proposed action, “the CAA does not allow for exemptions from otherwise applicable emission li mitations, 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 emi ssion 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.” 78 FR 12501.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

26 Ala. Admin Code Rule 335-3-14-.03(1) (h)(2), as also stated in the proposed action, “authorizes a state official unilaterally to decide that a gi ven event was an ‘emergency’ and thus to create an exemption from the otherwise applicable emission limitations. In this case, the provision does contain some general 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 de termination as to whether the event was an emergency. Again, most significantly, this discretion authorizes the creation an exemption on a case-by-case basis that is not permissible in the first instance.

Because the CAA does not allow for exemption fr om emission standards, even during startup and shutdown events, states must utilize other approa ches for addressing excess emission events. For example, states may exercise enforcement discre tion based upon the avail able information on the circumstances of each event. The EPA likewise exercises enforcement discretion and anticipates that citizens would do so as well. The EPA is not aware of any significant issues that have arisen as a result of supposed frivolous citizen suit actions (whether brought by competitors, environmental groups, or individual citizens or ot hers affected by the excess emissions), even in states with SIPs that do not have SSM exemptions or affirmative defense provisions. Another approach a state may choose to ta ke is to develop a lternative emission li mitations to apply during startup and shutdown events as part of a continuous emission limitation. These alternative limits may take th e form of reasonable alternativ e numerical limits, specific technological controls, or wo rk practice standards that in corporate specific practices demonstrated to reduce emissions to the ma ximum extent possible dur ing startup and shutdown periods. So long as the altern ative limits that apply during startup and shutdown are appropriately stringent for the type of SIP em ission limitation at issu e, and are legally and practically enforceable, the stat e has discretion to determine how best to revise a deficient SIP provision.

The commenter’s statements regarding the inclusion of exemptions in permits that are subject to the EPA and public review also do not address th e issue. Writing exemptions into operating permits for excess em issions during startup and shutdow n does not override the CAA requirement that SIP emission lim itations must be continuous. In addition, the general duty clause requiring the minimization of emissions at all times mentione d by ADEM as a justification for providing exemptions in emission limitati ons is not included in the Alabama SIP. Furthermore, even if the general duty clause wa s submitted as a part of an emission limitation in a SIP provision, the EPA would have concerns regarding whether the resulting emission limitation as a whole meets mini mum stringency requirements and is sufficiently enforceable. Regarding the commenter’s assertion that ther e have been no instances where the EPA has disagreed with ADEM’s actions on requests for the emergency exemption by any sources, the EPA notes that in general, the EPA would not id entify as an objectionabl e issue in comments on a permit the state’s case-by-case application of an exemption that is created or authorized by the SIP. Rather, the EPA seeks to remedy this SIP deficiency using a SIP call.

The EPA understands that ADEM receives and reviews the extensive data that monitors generate and is therefore alerted by any unusual data caus ed by startup, shutdown, or any other cause. The EPA also understands the Alabama SIP has had its “emergency” provision in effect for over 20 years and that exemptions may be granted only if ADEM determines that the exceedanceResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

27 could not have been reasonably avoided. Courts have determined, howev er, that the EPA does not have authority to provide in federal rules or to approve in state ru les exemptions from emission limitations. The EPA anticipates that st ates will exercise enforcement discretion as ADEM indicates that it has historically done. In addition, a state may el ect to revise existing state rules in SIP provisions , if necessary, to accommodate ci rcumstances where it is not possible for a source to meet the generally appl icable emissions limit. So long as the revised provisions meet CAA requirement s, a state may elect to repla ce impermissible SSM exemptions or affirmative defenses as it decides is most appropriate.

Comment:

ADEM commented that there is no health or welfare basis for finalizing the EPA’s SIP call because the EPA has not shown that Alabama’s SI P is substantially inadequate to meet the NAAQS.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”

Comment:

ADEM stated that Congress defined “emission li mitation,” “emission standard,” and “standard of performance” in the CAA to preclude the use of intermittent control systems as a way of complying with air quality st andards. According to ADEM, the Congressional record makes clear that these definitions were written to require the contin uous use of control devices. ADEM argued that the EPA has improperly expanded this term in its proposed ac tion to preclude the exemption of any exceedance in situations wher e control of SSM emissions is impossible or impractical.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.k, “Comments that an emission limitation can be ‘continuous’ even if it includes periods of exemptions from the emission limitation.”

Comment:

ADEM commented that the EPA allows for excess emissions in federal regulations, for example in 40 CFR Part 63, Subpart UUUUU, which provides for an exemption to emission limits during startup and shutdown. ADEM noted that this is an inconsistent appl ication of CAA requirements.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VII.A.3.a, “Comments that the EPA’s proposed action on the Petition isResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

28 incorrect because some of the Agency’s own regulations contain exemptions for emissions during SSM events” and section VII.A.3.e, “Comme nts that the EPA’s proposed action on the Petition is incorrect because the Agency’s re cent Mercury and Air Toxics Standards (MATS) rule and Area Source Boiler rule regulations co ntain exemptions for emissions during SSM events.”

Comment:

ADEM alleged that the EPA’s proposed action viol ates the principles of the federal state partnership. Through this action, ADEM believes that the EPA is removing st ates’ ability to use discretion and judgment.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

ADEM commented that the EPA should adopt regul ations describing SIP requirements before issuing a SIP call.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.4, “Comments that the E PA should create regulatory text in 40 CFR Part 51 to forbid SSM exemptions in SI P provisions if the CAA precludes them.”

Comment:

ADEM stated that the EPA should allow states longer than 18 m onths to respond to the SIP call because it is not sufficient time for states to ch ange their rules and submit proposed SIP revisions to the EPA. ADEM also alleged that sources will not have sufficient time to install new controls or change their operating pr ocedures. ADEM believes that 5 years is more appropriate.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.24, “Comments that th e EPA should provide more than 18 months for the SIP call because the stat e law administrative process can take longer than that.”

Comment:

ADEM argued that the EPA failed to calculate the co sts associated with th is action appropriately. ADEM believes that the EPA inappropriately considered only the administrative costs toResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

29 regulatory agencies for this rule making action, instead of also incl uding an estimate of costs to regulated sources.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.7, “Comments that th e EPA was obligated to address and justify the potential costs of the action and failed to do so correctly.”
2. Comment of the Alabama Attorney General (0440)

Comment:

The Alabama Attorney General commented that , without citing to any supporting data or evidence, the EPA concludes that ALA. ADM IN. CODE r. 335-3-14-.03(1)(h)(1) and ALA. ADMIN. CODE r. 335-3-14-.03(1)(h)(2) conflict with the EPA’s allegedly new interpretation of the meaning of “emission limitation,” and are th erefore “inconsistent with the fundamental requirements of the CAA.”

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.2, “Comments that the EPA must make specific factual findings to meet the requirements of section 110(a)(2)(H)(ii) to have authority to issue a SIP call.”

Comment:

The Alabama Attorney General a lleged that the EPA’s rulemaki ng action violates the federalstate partnership Congress chose for implementing the CAA. The commenter asserted that states are given the “primary responsibility” for dete rmining how to achieve the NAAQS and how to regulate sources within their own borders, and th at, through this SIP call, the EPA is substituting its policy preferences for the states’. The Alabam a Attorney General argued that if the EPA is permitted to use changed legal interpretations to ju stify dictating to the states that they revise their SIPs, then the states’ authority to choose the elements of their own SIPs will have been revoked.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism’” and section VIII.D.5, “Comments that the EPA’s interpretation of substantial inadequacy would override state discretion in the development of SIP provisions.”

Comment:

The Alabama Attorney General stated that the EPA’s focus in overseeing SIPs should be limited to whether those plans lead to attainment of the NAA QS. The commenter noted that Alabama isResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

30 attaining and maintainin g the NAAQS and air emissions have been in decline since the 1990s. The Alabama Attorney General a lleged that it is inappropriate for the EPA to issue a SIP call without considering the effect of the SIP to attain and maintain the NAAQS. The Alabama Attorney General further believes that the EPA’ s position that it need no t establish a causal connection between SSM exemptions and an advers e effect on attainment or maintenance of the NAAQS is wrong. The Alabama Attorney General alle ged that in this case, the EPA has failed to make the requisite finding to show that the SIP pr ovisions at issue are so substantially inadequate that the state cannot attain or maintain th e NAAQS or otherwise comply with the CAA.

The commenter further stated that the EPA recently approved several redesignation requests from Alabama, which the commenter alleged mean s that the EPA has admitted that the Alabama SIP is sufficient to achieve the NAAQS a nd is fully approved and enforceable.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call” and section VIII.D.15, “Comments that the EPA’s redesignation and approval of a maintenance plan for an area in a st ate with a SIP that has provisions at issue in the SIP call establishes that all pr ovisions in the SIP meet CAA requirements.”

Comment:

The Alabama Attorney General stat ed that Alabama has determined that sources should not be penalized for unavoidable emissions and thus ad opted SIP provisions to excuse unavoidably higher emission rates during SSM periods, so long as sources employ good air control practices. The Alabama Attorney General believes that th e EPA’s proposed rule ignores this reasonable and practical approach.

Response:

The EPA agrees that states may exercise enforc ement discretion for e xcess emissions during SSM events as they deem appropriate. What is at issue in this action, however, is state SIP provisions that have the effect of imposing st ate enforcement discreti on preferences upon the EPA and other citizen suit parties.

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.h, “Comments that exemptions or affirmative defenses are not only prohibited, but are actually required by the CAA because they are necessary to make an emission limitation ‘reasonable’ or ‘achievable’ for sources that cannot comply during SSM events.”

Comment:

The Alabama Attorney General stated that th e EPA’s proposal fails to account for control measures other than numerical emission limitations that states have included in their SIPs toResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

31 govern emissions during periods of SSM. The Alabam a Attorney General pointed to portions of Alabama’s SIP that require sources generally to minimize emissions and otherwise follow good operating practices during start up, shutdown or load change periods. The Alabama Attorney General also cited ALA. ADMIN. CODE r. 335-3- 14-.03(1)(h)(2)((ii)(III), wh ich requires that a source must show that, “during the period of which the emergency occurred, the permittee took all reasonable steps to minimize levels of emi ssions that exceeded the standards, or other requirements of the permit” in order to qualif y for an exemption for violations during emergencies. Therefore, the Alabama Attorney General believes that changes to the Alabama SIP are unnecessary.

Response:

The EPA has neither stated nor intended to im ply that a numeric emis sion limitation must apply during all periods of operation. On the contrary , and as stated in the general response to comments, the EPA agrees that emission limitations need not be numeric, provided that they are continuous.

While limitations other than numer ic emission limitations may be su fficient to sa tisfy the CAA’s requirement that emission limitations be “contin uous,” the EPA disagrees with the commenter’s contention that permit conditions and regulatory provisions di recting sources to minimize emissions and otherwise follow good operating practices during SSM serve as an alternative “emission limitations” during SSM events, thereby ju stifying explicit exemp tions from otherwise applicable emission limitations. Firs t, to the extent such permit condi tions are framed as criteria for determining whether an exemption from emission limitations applies, rather than as parts of an independently enforceable em ission limitation, these permit condi tions would not themselves qualify as “emission limitations.” Second, with resp ect to the comment that “permits that allow for SSM exemptions also have a duty to minimi ze emissions and otherw ise follow good operating practices during startup, shutdown or load c hange periods,” while the addition of such requirements to a source’s operating permit are us eful, such permit condit ions cannot be relied upon to remedy a SIP deficiency. For a SIP provis ion to satisfy the requ irement that emission limitations be “continuous,” any alternative limi tation applicable to SSM events as part of the SIP emission limitation must be specified in the SIP itself. Further, even if the general requirement to minimize emissions and othe rwise follow good operating practices were a requirement of the state’s approved SIP, th e EPA would have independent concerns about whether such provisions would undermine other CAA objectives and requirem ents if ever relied upon as the sole requirement purpor ting to limit emissions. See, e.g., CAA section 110(a)(2)(A), (C).

Likewise, the EPA disagrees with the commenter’s assertion t hat ALA. ADMIN. CODE r. 335-3- 14-.03(1)(h)(2)(ii)(III), which th e commenter cites and which is al so subject to this SIP call, establishes sufficient work practices to qualify as an alternative “emission limitation” applicable during SSM events. First, a review of this provis ion in context reveals that it is merely a component to an exemption from the emission li mitation, and not a part of an emission limitation itself. The emissions to be “minimize[d]” under this provision are those that “exceeded the emission standard.” Indeed, the provision appli es not as an emission limitation but during “[e]xceedances of emis sion limitations,” id. at 335-14-.03(1)(h)(2)(ii), and is located in aResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

32 broader section of Alabama’s regulations call ed, “Exceptions to violations of emission limitations.” Id. at 335-14-.03(1)(h). Second, th e operating standards set forth in ALA. ADMIN. CODE r. 335-3-14-.03(1 )(h)(2)((ii)(III) do not establish requirements that are directly enforceable against a source. Rath er, this regulation sets forth the criteria to be applied in determining whether “[e]xceedanc es of emission limitations duri ng emergencies ... at a facility may be exempted as being violations.” ALA. ADMIN. CODE r. 335-3-14- .03(1)(h)(2)(ii). That is, it establishes when th e source is exempted from the dire ctly enforceable requirement. Sources that do not comply with the general duty clau se are merely ineligib le for the exemption, and would thus liable for violating the underlying emission limitation. For a work practice to qualify as an enforceable emission limitatio n, it must, at a minimum, be enforceable against the source. Furthermore, for an emission limitation to be “enforceable” as required by CAA section 110(a)(2)(A) it must be legally enforc eable by the state and the EPA as well as by citizens under the CAA’s citizen suit provisi on. Here, even if the standard were framed as a directly enforceable requir ement, the provision in ALA. ADMIN. CODE r. 335-3-14- .03(1)(h)(2)(iii) providing that “[ t]he Director shall be the sole determiner of whether an emergency has occurred” would effectively preve nt enforcement by the EPA or members of the public. The EPA’s SSM Policy interpreting the CAA has long indicated that state SIP provisions cannot operate to bar enforcement by the EPA and citizen suit plaintiffs, based upon such unilateral enforcement discreti on decisions by a state.

For further discussion of this t opic, readers may refer to VII.A .3.m, “Comments that a ‘general duty’ provision—or comparable generic provisions that require sources to ‘exercise good engineering judgment,’ to ‘minim ize emissions’ or to ‘not caus e a violation of the NAAQS’— inoculate or make up for exemptions in specific emission limitations that apply to the source.”

Comment:

The Alabama Attorney General alleged that the EPA’s proposed rulemaking action with an inappropriately short public comment period is a product of inappropria te “sue and settle rulemaking strategy.” The Alabama Attorney General believes that this “closed-door policymaking bypasses the traditional rulemaking c oncepts of transparency and effective public participation in order to forward the age nda of environmental citizen groups.”

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.1, “Comments that the EPA should not have responded to the petition for rulemaking or that the EPA was wrong to do so.”

Comment:

The Alabama Attorney General commented that the EPA failed to assess and justify costs associated with its proposed ru lemaking action appropriately.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

33 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.7, “Comments that th e EPA was obligated to address and justify the potential costs of the action and failed to do so correctly.”

Comment:

The Alabama Attorney General stated that the EPA should either fully withdraw the proposed SIP call for Alabama, or at least delay final rulemaking until the EPA has gathered and analyzed data supporting its action and consulted with Alabama.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.2, “Comments that the EPA must make specific factual findings to meet the requirements of section 110(a)(2)(H)(i i) to have authority to issue a SIP call.”
3. Comment of parties other than the state on the Alabama SIP

Comment:

Some commenters noted that th e ADEM procedures for SSM have been in force for over 20 years and there have been no instances wher e the EPA disagreed with the state’s action on facility SSM events.

Response:

The EPA generally does not scrutinize enforcement discretion decisions by states, particularly where a state elects not to pursue an enfo rcement action. Unless a state’s exercise of enforcement discretion rises to th e level of a failure to implemen t the SIP, the EPA believes that a state’s enforcement discretion decisions are a matter of state discretion. In addition, to the extent that the federally -approved Alabama SIP currently provides an exemption from otherwise applicable emission limits for excess emissions during SSM events, such emissions would not constitute violations of the SIP. Assuming t hat the commenter is correct, and the EPA has not disagreed with any of Alabama’s decisions with respect to enforcement decisions concerning SSM events at facilities in the state, this fact does not overcome the substantial inadequacy of the specific Alabama SIP provisions at issue in th is action. Rather, it highl ights the fundamental enforcement problem created by such automa tic exemptions. Where excess emissions are exempted during certain modes of operation (i.e., SSM events), there is no viable enforcement option for the EPA or the members of the public to address such excess emissions because they are exempted by provisions of the existing SIP, even if those provisions do not meet fundamental legal requirements of the CAA with respect to SIP provisions. As described in the February 2013 proposal, Alabama Admin. Code Rule 335-3-14- .03(1)(h)(1) and .03(1)(h)(2) provide such exemptions from otherwise applicable emission limits. As described in the February 2013 proposal and throughout the notice of final actio n, these types of exempti ons are impermissible under the Act and the EPA’s interpretati on of the CAA in the SSM Policy.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

34 Comment:

Some commenters stated that th e Alabama SIP provisions the EPA identified as deficient in the February 2013 proposal are in fact in complia nce with CAA requirements. These commenters argued that Ala. Admin. Code r. 335-3-14-.03(1)(h)(2) and Ala. Admin. Code r. 335-3-14- .03(1)(h)(1) do not allow sources to operate w ithout application of appropriate “emission limitations” within the m eaning of CAA section 302(k). The co mmenters noted that non-numeric “emission limitations,” such as obligations to minimize excess emissions, maintain equipment properly, take immediate corrective action, and m onitor and report the ci rcumstances of every period of excess emissions, are applicable, en forceable, and enforced during all periods of operation. The premise of these comments is that explicit exemptions fr om emissions limitations are excused by other general duty type obligations that may appear elsewhere in a state’s SIP or permit provisions, regardless of whether those supposed alternative emission limitations are evident on the face of the emission limitation and regardless of whether they meet applicable CAA requirements.

Response:

The EPA has neither stated nor intended to im ply that a numeric emis sion limitation must apply during all periods of operation. On the contra ry, and as discussed in the final ru le, the EPA agrees that limitations other than numeric emis sion limits may satisfy the requirement that emission limitations be “continuous” if they meet th e requirements of the Act. A valid emission limitation may be comprised of numerical limits (t hat do not have to be the same numerical limit during all modes of source operation), specific technological control re quirements, or work practice requirements, so long as the resul ting emission limitation is continuous, meets applicable stringency requirements for the type of SIP provision at issue, and is legally and practically enforceable. In the SSM Policy, the EPA has recommended criteria for developing valid alternative emissions limits that a state may elect to include for specific modes of source operation, such as startup and shutdown.

While limitations other than numer ic emission limitations may be su fficient to sa tisfy the CAA’s requirement that emission limitations be “contin uous,” the EPA disagrees with the commenter’s contention that “Alabama’s SIP package of co ntrols, with the SSM provisions included” qualifies as a section 302(k) “emission limitation” that limits emissions “on a continuous basis.” First, with respect to the commenter’s assertion that ALA. ADMIN. CODE r. 335-3-14- .03(1)(h)(2) establishes an “emission limitation” for SSM events, a review of this provision in context reveals that it is mere ly a component to an exemption fr om the emission limitation during emergencies, and not a part of an emission limitati on itself. The emissions to be “minimize[d]” under this provision are those that “exceeded the emission standard.” Indeed, the provision applies not as an emission limitation but during “[ e]xceedances of emission limitations,” id. at 335-14-.03(1)(h)(2 )(ii), and is located in a broader sect ion of Alabama’s regulations called, “Exceptions to violations of emission limits.” Id. at 335-14-.03(1)(h). Second, the operating standards set forth in ALA. ADMIN. CODE r. 335-3-14-.03(1)(h )(2)(ii)(III) do not establish requirements that are independently enforceable against a source. Rather, this regulation sets forth the criteria to be app lied in determining whether “[e] xceedances of emission limitations during emergencies ... at a facility may be exempt ed as being violations.” ALA. ADMIN. CODEResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

35 r. 335-3-14-.03(1)(h)(2)(ii). That is, the provision establishes when the source is exempted from the independently enforceable requirement. Sour ces that do not comply with the general duty clause are merely ineligible for the exemption, a nd would thus be potentia lly liable for violating the underlying emission limitation. For a work prac tice to qualify as an enforceable emission limitation, it must, at a minimum, be enforc eable against the source. Furthermore, for an emission limitation to be “enforceable” as re quired by CAA section 110( a)(2)(A) it must be legally enforceable by the state and the EPA as well as by citizens under the CAA’s citizen suit provision. Here, even if the standard were framed as an independently enforceable requirement, the provision in ALA. ADMIN. CODE r. 335- 3-14-.03(1)(h)(2)(iii) prov iding that “[t]he Director shall be the sole determiner of whet her an emergency has occurred” would effectively prevent enforcement by the EPA or members of the public. The EPA’s SSM Policy interpreting the CAA has long indicated that state SIP provis ions cannot operate to bar enforcement by the EPA and citizen suit plaintiffs, based upon such unila teral enforcement discretion decisions by a

state.
The EPA also disagrees with the commenter’s sugge stion that the deficienc ies in Alabama’s SIP provisions identified in this SIP call are remedi ed by permit conditions t hat purportedly establish enforceable emission limitations applicable duri ng SSM events for sources that are granted exemptions from SIP emission limits pursuant to ALA. ADMIN. CODE r. 335-3-14-.03(1)(h)(1). First, to the extent such permit conditions are framed as crite ria for determining whether an exemption from emission limita tions applies, rather than as parts of an independently enforceable emission limitation, these provisions would not themselves qualify as “emission limitations.” Second, while the addition of such requirements to a source’s operating permit are useful, such permit conditions c annot be relied upon to remedy a deficiency in a SIP provision. For a SIP provision to satisfy the requirement that emission limitations be “continuous,” any alternative limitation applicable during SSM events must be specifie d in the SIP itself. Further, even if the general requirement to minimize emissions and otherwise follow good operating practices were a requirement of the state’s approved SIP, the EPA would have independent concerns about whether such provisions would undermine other CAA objectives and requirements if ever relied upon as the sole “req uirement” purporting to limit emissions. See, e.g., CAA section 110( a)(2)(A), (C).

An example of the use of work practices in lieu of numeric limits duri ng periods of startup and shutdown as part of a valid con tinuously applicable emission limitation is found in the NESHAP at 40 CFR Part 63, Subpart UUUUU, which provides that facilities must comply with a set of specific work practice standards 4 for minimizing emissions such as following manufacturer’s recommended procedures for minimizing start up and shutdown periods, tuning, maintaining and inspecting burners and associated combustion co ntrols, keeping records of activity and measurements, using either natural gas or dist illate oil for ignition during startup, and operating all control devices necessary to meet th e normal operating standards. Such requirements, designed with consideration of the specific sour ce type, can be an effe ctive method of reducing

4 The work practice standards under these rules are contained in Table 3 of Subpart UUUUU, Table 3 of Subpart DDDDD, and Table 2 of Subpart JJJJJJ.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

36 emissions during SSM periods, while also impos ing clear requirements that are legally and functionally enforceable.

Comment:

Some commenters stated that the historical evidence directly cont radicts the EPA’s claim that its initial approval of many SSM provisions in the 1 970s was “inadvertent” or the product of a lack of resources and experience. One commenter not ed that in Alabama, for example, the SSM provision in Alabama’s SIP, Al a. Admin. Code r. 335-3-14-.03( 1)(h)(1), was approved in 1972 as part of Alabama’s original SIP. The commen ter stated that Alabama’s SIP was modeled after the Colorado’s SIP, which the EPA gave to ADEM to use as a model. The EPA also approved the emergency provision in 1993.

Response:

The EPA did not state in its SIP ca ll proposal notice that its initial approval of SSM provisions in the 1970s was “inadvertent” or “accidental.” Ra ther, the EPA has attempted to describe for readers the extreme circumstances that existed in the early days of the Agency under which some actions were approved. The EPA stated that “In the early 1970s, because the EPA was inundated with proposed SIPs and had limited experience in processing them, not enough attention was given to the ade quacy, enforceability, and consis tency of these provisions. Consequently, many SIPs were approved with broad and loosely defined provisions to control excess emissions.” 78 FR 12459 at 12464, February 22, 2013. These were not new statements by the EPA, as this observation was also made in the 1982 SSM Policy. See Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions, Kathleen M. Bennett, September 28, 1982.

Ala. Admin. Code r. 335-3-14-.03(1)(h)(1) and Ala. Admin. Code r. 335-3-14-.03(1)(h)(2) are the Alabama provisions included in this SSM SIP call. The EPA agrees that the original version of Ala. Admin. Code r. 335-3-14-.03(1)(h)(1) wa s approved by the EPA in 1972. Thus, the timing of the approval of Ala. Admin. Code r. 335-3- 14-.03(1)(h)(1) is consistent with the EPA’s general statement that early SIP submi ssions sometimes lacked adequate review.

On December 20, 1993, Alabama submitted a revision t hat included changes to several chapters of the state’s SIP. As stated in the submittal, the purpose of that state rulemaking was to incorporate new federal permitting requirements in to the existing permitti ng requirements of the state’s SIP, including the addition of a new synthetic minor operating permitting program (chapter 15) compatible with the state’s titl e V operating permit program (chapter 16). In approving the new chapter 15, the EPA also appro ved a changes to the state’s existing chapter 14, “Air Permits.” Among the changes to chapter 14 were a revision to Ala. Admin. Code r. 335-3-14-.03(1)(h) and the addition of Al a. Admin. Code r. 335- 3-14-.03(1)(h)(2) (the “emergency provision”) (again, these are Alabama pr ovisions included in this SSM SIP call). In October 1994, the EPA approved the state’s Dece mber 20, 1993, submittal in its entirety, except for chapter 16 (the major source operating perm its program), into the Alabama SIP. See 59Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

37 FR 52915, October 20, 1994. 5 The EPA notes, however, that while that action did approve changes to some aspects of chapter 14 of the ADEM SIP, the primary purpose of the action was to approve a newly adopted chapter 15, the state’ s synthetic minor operating permitting program (i.e., Ala. Admin. Code r. 335-3-15). The EPA’s October 20, 1994, action does not specifically mention rules 335-3-14-.03( 1)(h)(1) or 335- 3-14-.03(1)(h)(2) in any wa y. Upon review of that action for the purpose of responding to comments on this SIP call, the EPA notes the following:

(1) The revision to the existing subparagr aph 335-3-14-.03(1)(h) mere ly renumbered the subparagraph to 335-3-14-.03(1)(h)( 1) and made minor changes to the wording of the text originally approved in the 1970s.

(2) The new subparagraph 335-3-14- .03(1)(h)(2) resulted in th e addition of provisions to Alabama’s general “Air Permits” chapter that we re very similar to Ala. Admin. Code r. 335-3- 16-.11(2), which is the “Emergency provision” of the state’s title V ope rating permit program for major sources. 6 Thus, at the time that the EPA approved the addition of 335-3-14- .03(1)(h)(2) to the state’s general “Air Permits ” chapter, the EPA understood the provision to be merely reflective of the “emergency provision” of the federal title V operating permit program 7 and failed to identify concerns regarding its use in state SIPs. However, as discussed in the [proposed/final] SIP call, some states have presum ably intended to create affirmative defense provisions applicable for thei r SIPs, but by using the termi nology of the operating permit regulations, they have created pr ovisions that are not permis sible in SIPs. [See 78 FR 12481.]

The commenter also references, in footnote 11, an April 27, 1993, SIP approval action related to Alabama’s visible emissions rule at Ala. Admin. Code r. 335-3-4.01. The rule approved in that action does include a Director’s discretion pr ovision, however, that provision was approved based in part upon an interpretive letter from the state and is subject to different circumstances than the SSM provision, such as opportunity for comment by the EPA in the title V permit issuance process. Therefore, the 1993 approval of revisions to Alabam a’s visible emissions provision should not be interprete d as justification for the Dir ector’s discretion provided under Ala. Admin. Code r. 335-3-14-.03(1)(h)(1) and 335-3-14-.03(1)(h)(2). Furthermore, the EPA notes that this SIP call responds only to remedi es specifically sought by petitioners, which did not include Ala. Admin. Code r. 335-3-4.01. Thus, th e absence from this SIP call of Ala. Admin. Code r. 335-3-4.01, with a Director ’s discretion provision therein, should not be interpreted as affirmation of the legality of that provision.

5 The commenter references 58 FR 45439 (August 30, 1993) as the approval action for the revision to Ala. Admin. Code r. 335-3-14-.03(1)(h)(1) and the addition of Ala. Admin. Code r. 335-3-14- .03(1)(h)(2). However, the Augus t 30, 1993, action did not address these provisions, although it did approve some changes to the permit requirements of Chapter 335-3-14, mostly due to typographical or grammatical errors.

6 Alabama’s title V program was also included with th e December 20, 1993, submittal for approval by the EPA. The State’s title V program, which is not part of the State’s SIP, was approved by the EPA on November 15, 1995. 60 FR 57346, November 15, 1995.

7 40 CFR 70.6(g).Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

38 Finally, the EPA notes that the pr ecise circumstances surrounding the original approval of the deficient provisions are not outcome determinativ e with respect to the legal validity of the deficient provisions of the Alabama SIP at th is point in time. Sec tion 110(k)(5) explicitly provides that “whenever” the EPA determines that an existing SIP pr ovision is deficient, including because it is not consistent with C AA requirements, the Agency may promulgate a SIP call directing the state to revise the deficient provision. Thus, regardless of what the state and the EPA specifically considered at the time of th e initial approval of these provisions in 1972 (or subsequently), the Agency has determined that these provisions are not consistent with CAA requirements.

Comment:

Some commenters alleged that Al abama permits that allow for SSM exemptions also have a duty to minimize emissions and otherwise follow good operating practices du ring startup, shutdown or load change periods.

Response:

With regard to the comment that Alabama and other southeastern states already have requirements to minimize emi ssions during SSM, the EPA disagrees with the commenters that such requirements are sufficient to qualify as an alternative “e mission limitation” applicable to SSM events. First, those operating standards that are framed as criteria for obtaining an exemption from an emission limitat ion, rather than as independently enforceable parts of an emission limitation, and thus do not themselves qualify as “emissi on limitations.” Even if these general requirements were parts of an emissi on limitation, which they are not, the EPA would have independent concerns about whether the re sulting emission limitation would meet minimum stringency requirements and comply with other legal requirements of the act. See, e.g., CAA section 110(a)(2)(A), (C).



### b. Florida

1. Comment of the Florida Depart ment of Environmental Protection (DEP) (0878)

Comment:

Florida DEP alleged that the EPA’s proposed action is counter to the principles of cooperative federalism. Florida DEP believes that the EPA is substituting its own j udgment for Florida’s, which is counter to the system established by th e CAA. According to Florida DEP, the Supreme Court has recognized that the EPA ha s a secondary role under the CAA.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

39 Comment:

Florida DEP argued that the EPA failed to consid er factual data and evidence before proposing its SIP call. According to Florida DEP, actual air quality evidence in Florida shows that the state’s SIP is more than adequate to achieve and maintain the NAAQS, and Florida’s air quality has improved while the SIP ha s included SSM provisions.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.2, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SI P call,” and section VIII.D.17, “Comments that because areas are in attainment of the NAAQS, SI P provisions such as automatic exemptions for excess emissions during SSM events ar e rendered valid under the CAA.”

Comment:

Florida DEP stated that the EPA approved Flor ida’s SSM rule in 1982 a nd has since reapproved it numerous times through infrastructure SIP appr ovals confirming that Florida’s state-specific plan contains the proper rules to implement, maintain, and enforce federal air quality standards.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.18, “Comments that th e EPA’s initial approval of these deficient provisions, or subsequent indi rect approval of them through action on other SIP submissions, establishes that these provisi ons meet CAA requirements.”

Comment:

Florida DEP argued that the EPA’ s conclusions regarding Florida’ s SIP provisions identified as deficient are incorrect. Florida DEP stated that Florida’s SIP provisions establish enforceable, alternative emissions limitations and measures such that an emission limitation applies continuously. According to the Florida DEP, th e EPA recognizes that Florida’s rule not only imposes factual and temporal limits on emissions during SSM periods, but that it also prohibits certain emissions which may reasonably be prev ented during startup, s hutdown, or malfunction

Further, Florida DEP alleged that Florida’s SIP provisions are not a vari ance from “otherwise applicable emissions limitations,” but rather an alte rnative limitation that sources may invoke only under certain circumstances ( i.e. , during startup, shutdown, malfunction, or other nonnormal operations—soot blowing and load ch anging) and only by undertaking specific, enforceable measures ( i.e. , best operational practices, lim iting duration, complying with alternative emission limitations).

Florida DEP also noted its SIP provisions only apply to specific, narrowly defined source categories and activitie s. Florida DEP stated that alt hough subsection (1) applies to “anyResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

40 emissions unit,” each unit must adhere to specific control strategies ( i.e. , best operational practices and limiting the duration of “excess emi ssions,” not to exceed two hours in any 24-hour period); best operational practices are source-category specific. Fu rther, FDEP argued that the EPA’s alleged requirement for “specific, narr owly-defined source cate gories using specific control strategies” is not found in the CAA, but rather is a single re commendation in the EPA guidance.

Florida DEP also stated that the EPA acknowle dged that its SIP pr ovisions are directly enforceable by Florida, the EPA, and citizens. 78 Fed. Reg. at 12,504. Florida DEP believes that this rule is no different than any other state rule or SIP provision, whic h is enforceable through a number of mechanisms.

Finally, Florida DEP noted that its SIP provisions prohibit excess emissions that are preventable. Florida DEP believes that this limitation of the pr ovision to emissions during events that may not be reasonably prevented is appropriate.

Response:

The EPA disagrees with the commenter’s contention that Florida’s SSM rules (which appear in Section 62-210.700, F.A.C.) establish alterna tive “emission limitations” during SSM events sufficient to make other SIP emission limitations “continuou s” in accordance with CAA section 302(k). First, none of these provisions are included as a part of any particular SIP emission limitation; therefore, they cannot serve to make any particular emission limitation “continuous.” Second, none of these provisions ar e independently enforceable against a source. Rather, these provisions establ ish the criteria that apply in determining whether “excess emissions” (i.e., emissions above otherwise app licable emission limits”) are permitted. The criteria themselves are not en forceable. For a work practi ce to qualify as an enforceable emission limitation, it must, at a minimum, be independently enforceabl e against the source. For further discussion on this topic, readers may refer to section VII.A.3.m, “Comments that a ‘general duty’ provision—or comparable generic provisions that require sources to ‘exercise good engineering judgment,’ to ‘min imize emissions’ or to ‘not c ause a violation of the NAAQS’ —inoculate or make up for exemptions in specific emission limitations that apply to the source.”

The EPA agrees with comments noting that portions of Section 62-210.700 are “narrowly tailored to a specific source category” (existi ng fossil fuel steam generators) and refer to specific control strategies. At le ast in these respects , those portions of Section 62-210.700 satisfy some of the recommended criteria for an altern ative emission limitation governing emissions during startup and shutdown specified in the EPA’s 1999 SSM Policy and reiterated in this final action. As explained above, however, these regula tory provisions do not qualify as enforceable emission limitations in their current form.

Regarding the commenter’s reference to a stat ement in the EPA’s proposal explaining that Florida’s SSM provisions are “directly enfor ceable by the state, EPA, and members of the public,” the commenter has taken the statement from the proposal quoted above out of context. This statement addresses the Petitioner’s concer n that the cited provisions of the Florida Administrative Code “do not specify the procedure by which the fact ual premises [giving rise toResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

41 one of the exemptions] are to be proven.” As noted in the February 2013 proposal, there could be a concern that Florida’s rules authorize state officials to make unilateral discretionary decisions as to whether a given event qualified for the (impermissible) exemptions provided in the SIP. See 78 FR 12503. The EPA’s statement that the provisions of the Florida SIP are directly enforceable supports the EPA’s view that these provisions do not appear to raise a director’s discretion concern, i.e ., the provisions do not vest the director with sole discretion to determine whether the source meets the criteri a in the Florida SIP for exempting “excess emissions” from otherwise applicable emission limits. In other words, in an action to enforce the generally applicable emission limitation against the source, me mbers of the public and the EPA would be free to argue that the source did not satisfy the exemption crit eria and is therefore in violation of the generally applic able emission limitation. The fact that the exis ting Florida SIP provisions do not vest the director with sole discretion to determine whether a source meets the criteria for an exemption, however, does not eliminat e the underlying deficiency that the Florida SIP impermissibly exempts source s from otherwise applicable em ission limitations under certain circumstances.
2. Comment of parties other than the state on the Florida SIP

Comment:

Some commenters alleged that Flor ida’s SIP provisions at issue in this action impose operationand maintenance-based contro l requirements, including by pr ohibiting the a pplication of emissions exemptions in cases where excess emi ssions are caused “entirely or in part by poor maintenance, poor operation, or any other equipmen t or process failure which may reasonably be prevented during startup, shutdown, or malfuncti on.” The commenters also noted that the SIP provisions also require that facilities use “bes t operational practices to minimize emissions” and require that “the duration of ex cess emissions be minimized.”

According to commenters, the EPA acknowledged that Section 62-210.700(4), F.A.C. “reduces the potential scope” of the exce ss emissions allowed by sections 62-210.700(1)-(3), F.A.C., and “would serve to prevent sources...from getting the benefits of the exemption.” 78 Fed. Reg. 12503. One commenter alleged that this means the EPA recognizes and admits that these provisions effectively limit the quantity of emissions that a source might otherwise emit, and therefore, because excess emissions provisions ensure that emissions are being reduced and limited on a continuous basis, the EP A’s proposed SIP call is invalid.

Response:

The EPA has neither stated nor intended to im ply that a numeric emis sion limitation must apply during all periods of operation. On the contrary, and as discussed in detail in the notice of final action (see section VII.A.3.j, “Comments that an emission limitation can be ‘continuous’ even if it has different numerical limitations applicable during some modes of source operation or has a combination of numerical emission limitations and specific control te chnologies or work practices applicable during othe r modes of operation”), the EPA agrees that limitations other than numeric emission limits may satisfy the requirement that emission limitations be “continuous” if they meet the requirements of the Act.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

42 While limitations other than numer ic emission limitations may be su fficient to sa tisfy the CAA’s requirement that emission limitations be “contin uous,” the EPA disagrees with the commenter’s contention that F.A.C. section 62-210.700(4) ser ves as a valid alternative “emission limitation” during SSM events. First, this provision is not a part of a particular SIP emission limitation; therefore, it cannot serve to make any particular emission limitation “continuous.” Second, the provision is not independently en forceable against a source. Rather , it establishes the criteria that apply in determining whether “excess em issions” (i.e., emissions above otherwise applicable emission limits) are permitted. The cr iteria themselves are not enforceable. For a work practice to qualify as an enforceable emission limitation, it must, at a minimum, be independently enforceabl e against the source.

Finally, the EPA disagrees that its acknowledgment that the Flor ida SIP provisions at issue impose some restrictions on their scope does not mean that the Agency “admits” that those restrictions are sufficient to make the provisions consistent w ith CAA requirements. Had the EPA believed that the limitations were sufficient, it would not have pr oposed to find the provisions substantially inadequate and to issue a SIP call.

Comment:

Some commenters alleged that the EPA’s proposal notice contai ned directly contradictory statements about the Florida SIP provisions at issue. According to the commenters, in the proposal notice the EPA admits that Flor ida’s excess emissions provisions are “ directly enforceable by the state, the EPA, or members of the public....” Id. at 12503 (emphasis added). One commenter stated that the EPA further char acterized Florida’s excess emission provisions as “establish[ing] factual re quirements that would need to be eval uated in order to prove a violation of the applicable emission limitation.” Id. The commenter argued that Florida’s excess emission provisions cannot constitute an exemption and, simultaneously, an emission limitation subject to enforcement for factually estab lished violations. The commenter alleged that Florida’s excess emission provisions are more prope rly considered enforceable alternative emission limitations applicable during limited periods of startup, shutdown, malfunction, load change, and soot blowing.

The commenter also argued that the EPA’s argument in the propos al notice focuses too narrowly on the phrase “shall be permitted” in the SIP provisions at issue, while ignoring the importance and effect of the substantive emissi on-limiting conditions of the rule.

Response:

The EPA disagrees with the comment. The commenter has taken the statement from the proposal quoted above out of context. This statement addre sses the Petitioner’s concern that the cited provisions of the Florida Admini strative Code “do not specify the procedure by which the factual premises [giving rise to one of the exemptions] are to be proven.” As noted in the February 2013 proposal, there could be a concern that Florid a’s rules authorize st ate officials to make unilateral discretionary decisions as to whether a given event qualified for the (impermissible) exemptions provided in the SIP. See 78 FR 12503. Th e EPA’s statement that the provisions of the Florida SIP are directly enfo rceable pertains to the EPA’ s proposed finding that theseResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

43 provisions do not raise a director’s discreti on concern, i.e., the provisions do not vest the director with sole discretion to determine whethe r the source meets the criteria in the Florida SIP for exempting “excess emissions” from othe rwise applicable emission limits. In other words, in an action to enforce the gene rally applicable emission limitati on against the source, members of the public and the EPA would be free to argue that the source did not satisfy the exemption criteria and is therefore in viol ation of the generally applicable em ission limitation. In this way, the EPA and members of the public can “enforce” the criteria, meaning that they can make the case in an enforcement action that the source did not qualify for an exemption from otherwise applicable requirements because it did not meet th e exemption criteria. The fact that the existing Florida SIP provisions do not vest the director with sole discretion to determine whether a source meets the exemption criter ia, however, does not eliminate th e underlying deficiency that the Florida SIP impermissibly exempts sources from otherwise applicable emission limitations under certain circumstances.

The EPA also disagrees that Florida’s excess emission provisions, pr oviding that excess emissions “shall be permitted” under certain ci rcumstances, constitute alternative emission limitations in any way. Again, a provision provid ing that excess emissions “shall be permitted” under certain circumstances is an exemption from compliance under such circumstances. In this context “permitted” means “legally allowed” an d thus those emissions would be exempt for purposes of the otherwise applicab le emissions limitation. As disc ussed above, a section 302(k)- compliant alternative emission limitation fo r startup and shutdown even ts must, among other things, be independently enforceable and specific ally included as part of the particular SIP emission limitation at issue. Th e Florida SIP provisions in que stion meet neither of these criteria.

Comment:

Some commenters noted that, in the February 2013 proposal, the EPA asserted that Florida’s provisions “do not appear to comply with the Ac t’s requirements as interpreted in the EPA’s SSM Policy, because, for instance, they do not ap ply only to ‘specific narrowly-defined source categories using specific control strategies.’ ” 78 Fed. Reg. at 12503. The co mmenters stated that this merely represents one of the criter ia “recommended” in the EPA’s SSM Policy for evaluating such provisions, and offers no real explanation of why the EPA believes Florida’s provisions are invalid under the CAA. The comm enters further argued that the EPA’s focus on the “appearance” of Florida’s rules, fails to ackno wledge that Florida’s provisions are in fact narrowly tailored. One commenter alleged that Fl orida’s excess emission provisions do establish a special standard that effectively limits and minimizes emissions during startup, shutdown, soot blowing, load change, and malfunction, when compliance with normal-operation, steady-state emission limits is technically impossible or infeasible. The commenter quoted the EPA’s statement when the Agency initially approved th ese provisions in 1982: “[i]n effect, the upset and startup rule revision recognizes the occurr ence of unavoidable malfun ctions and provides a definite control rule to deal with them.” 47 Fed. Reg. 3111 (Jan. 22, 1982).Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

44 Response:

The EPA disagrees with the commenter’s contenti on that Sections 62-210. 700(1), (2), (3) and (4) F.A.C., serve as alternative “emission limita tions” during SSM events. First, none of these provisions are included as a part of any parti cular SIP emission limitation; therefore, they cannot serve to make any particular emission limitation “continuous.” Second, none of these provisions are independently enforceable against a source. Rather, these provisions establish the criteria that apply in determin ing whether “excess emissions” (i.e., emissions above otherwise applicable emission limits”) are permitted. The crit eria themselves are not enforceable. For a work practice to qualify as an enforceable emission limitation, it must, at a minimum, be independently enforceabl e against the source.

The EPA agrees that portions of Section 62-210.700 ar e “narrowly tailored to a specific source category” (existing fossil fuel steam generators) and refer to specific contro l strategies. At least in these respects, those portions of Section 62 -210.700 satisfy some of the recommended criteria for an alternative emission limita tion governing emissions during st artup and shutdown specified in the EPA’s 1999 SSM Policy and reiterated in this final action. As explained above, however, these regulatory provisions do not qualify as enforceable emissi on limitations in their current form.

Comment:

Some commenters argued that the exemption provided in Florida’ s SIP for excess emissions is not automatic. To the contrary, according to th e commenters, Florida’s rules require control measures to be implemented during SSM events a nd for at least three criteria to be met before excess emissions are allowed, including adhe rence to best operational practices.

Response:

Sections 62-210.700(1), (2), (3) and (4), F.A.C., provide exem ptions from SIP emission limitations on the condition that th e source complies with certain practices. Thus, regardless of any other provisions within these or other provis ions of the state’s SIP, these provision do not comply with the requirements of the CAA b ecause they provide for the possibility that noncompliance with applicab le emission limitations “shall be permitted” (i.e., the emissions during such events will be exempted). Furthermore, the work practice provisions in Sections 62- 210.700(1), (2), (3) and (4), F.A.C. are not independently enfor ceable. Rather, these provisions establish the criteria for determining whether a source is exempt from th e otherwise applicable emission limitations. The criteria themselves can not be enforced against a source. The only legal way for the numeric emission limits of the Flor ida SIP not to apply at any time is if the rules provide that some other enfor ceable limitation requiring the mini mization of pollutant emissions applies during those times instead, i. e., the alternative limitation mu st be enforceable in its own right, not simply a criterion for determining wh ether excess emissions constitute a violation of the generally applicable emission limitation. In addition, for such al ternative limitation to make the otherwise applicable emission limitation “continuous,” the alternative limitation must be included as part of that par ticular emission limitation. General work practice standards separately included elsewhere in the SIP cannot be relied upon to make a particular emissionResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

45 limitation with an explicit exempti on for emissions during SSM events “continuous.” For further discussion on this topic, reade rs may refer to section VII.A.3. m, “Comments that a ‘general duty’ provision—or comparable generic provisions that requ ire sources to ‘exercise good engineering judgment,’ to ‘minim ize emissions’ or to ‘not caus e a violation of the NAAQS’ — inoculate or make up for exemptions in specific emission limitations that apply to the source.”


### c. Georgia

1. Comment of the Georgia En vironmental Protection Division (EPD) (0557)

Comment:

Georgia EPD commented that the EPA’s propos ed rulemaking action fails to sufficiently describe and quantify the impacts of the EPA’s ac tion on affected states and sources. If the EPA finalizes its SIP call, Georgia woul d likely be forced to evaluate all of the emission limitations in Georgia Rule 391-3-1-.02 and permit emission limitations to determine how the emission limitations may be modified to comply with the rulemaking action. Georgia EPD further noted that once the state makes the needed changes, it then must submit those to the EPA as a SIP revision.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.7, “Comments that th e EPA was obligated to address and justify the potential costs of the action and failed to do so correctly.”

Comment:

Georgia EPD stated that the EPA failed to adeq uately evaluate the impacts of its rulemaking action on regulated sources. Ge orgia EPD believes that chan ging longstanding SIP provisions alters the basis on which sources determined they could construct and oper ate. Some sources are not capable of meeting emission limitat ions due to technology limitations.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.28, “Comments that dire cting states to correct their existing SIP provisions will require many sources to change terms of their operating permits” and section VII.B.3.a, “Comments that as a tech nical matter sources cannot meet emission limitations (or cannot be a ccurately monitored) dur ing startup and shutdown.”

Comment:

Georgia EPD noted that the EPA failed to anal yze any actual emissions data recorded during periods of SSM in support of the proposal. The Georgia EPD attached to its comments a spreadsheet containing data on excess emissi ons during SSM events for major sources inResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

46 Georgia for 2012. According to the Georgia EPD, this data shows that many sources will be impacted by the EPA’s action, but also many sour ces have low quantities of excess emissions during startup and shutdown.

Response:

The EPA has concluded that exemptions from SI P emission limitations as well as affirmative defenses contravene the CAA, and the presence of such provisions in SIPs renders these SIPs substantially inadequate. The scale of excess emis sions from sources in Georgia does not change this aspect of CAA requirements. The EPA belie ves this topic is adequa tely addressed in the notice of final action and directs readers to section VIII.D.4, “Comments that the EPA lacks authority to issue a SIP call becaus e it is required to ‘quantify’ th e magnitude of any alleged SIP deficiency in order to establish that it is substantial.”

Comment:

Georgia EPD alleged that the EPA’s proposed acti on fails to consider th at emissions during SSM events may not be capable of being accurately measured due to flue gas conditions that are changing or are outside of the typical ranges. According to Ge orgia EPD, the EPA acknowledged this issue in its own NSPS. 40 CFR 60.8(c). Georgi a EPD believes that th is directly conflicts with the EPA’s statement that startup and shutdown periods constitute normal operations.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.B.3.a, “Comme nts that as a technical matter sources cannot meet emission limitations (or cannot be a ccurately monitored) duri ng startup and shutdown.”

Comment:

Georgia EPD alleged that the EPA is exceeding its authority under section 110 of the CAA in this rulemaking action. Georgia EPD stated that the states have the primary responsibility for determining how to meet the NAAQS, and Georgi a has chosen to do so with the numerical emission limits and standards in Georgia Rule 3 91-3-1-.02(2) and the work practice standard in Georgia Rule 391-3-1-.02(2)(a)10.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism’” and section VII.A.3.m, “Comments that a ‘general duty’ provision—or comparable generic provisions that require sources to ‘exercise good engin eering judgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’ —inoculate or make up for exemptions in the specific emission limitati ons that apply to the source.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

47 Comment:

Georgia EPD alleged that the EPA overlooked relevant sections of Georgia’s SIP in determining that it was “substantially inadequate.” Georgia EP D argued that the EPA must review all relevant sections of a state’s SIP before issuing a SIP call and that the EPA has failed to do so here.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.13, “Comments that EPA has to evaluate a SIP ‘as a whole’ to have the authority to issue a SIP call.”

Comment:

The Georgia EPD also stated that the Georgi a SIP limits emissions from sources using a combination of numerical emission limits in Ge orgia Rule 391-3-1-.02(2) and the generic work practice standard in Georgia Rule 391-3-1-.02(2)(a)10, which requires that at all times, including periods of startup, shutdown, a nd malfunction, source owners and operators shall maintain and operate each source, including associated air pollution control equipment, in a manner consistent with good air pollution control prac tice for minimizing emissions.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.m, “Comments that a ‘general duty’ provision—or comparable generic provisions that require sources to ‘exercise good engin eering judgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’ —inoculate or make up for exemptions in specific emission limitations that apply to the source.” The EPA notes that Georgia Rule 391-3- 1-.02(2)(a)10 is not part of Ge orgia’s federally-approved SIP, and thus it could not be considered a valid part of the emission limitation even if it did meet other CAA requirements for SIP provisions concerning st ringency and enforceability.

Comment:

Georgia EPD alleged that the EPA’s inte rpretation of “emission limitation” under CAA section 302(k) is incorrect. The commenter claime d that the EPA fails to account for the part of the definition that refers to “operation, maintenance, design, equipment work practice, and operational standard.” The commenter argued that the EPA failed to follow ordinary rules of statutory construction by rendering this latter part of the statutory definition a nullity.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.g, “Comments that the definition of ‘emission limitation’ in section 302(k) does not require that all forms of emission limitations mu st apply continuously.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

48 Comment:

Georgia EPD alleged that the EPA’s proposed acti on is arbitrary and capricious because it holds SIP provisions to a different st andard than the EPA’s own em ission limitations developed under the NSPS and NESHAP programs. S ee 40 CFR Part 63, Subpart JJJJJJ.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.e, “Comments that the EPA’s proposed action on the Petition is incorrect because the Agency’s recent MATS ru le and Area Source Boiler rule regulations contain exemptions for emi ssions during SSM events.”
2. Comment of the Georgia EPD (0933)

Comment:

The Georgia EPD was among commenters who generally stated that it incorporated by reference its previous comments on the EPA’s February 2013 proposal into its comments on the EPA’s SNPR. The Georgia EPD argued that its commen ts regarding the EPA’s affirmative defense policy filed on the EPA’s February 2013 proposal are not moot.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.42, “Comments that th e EPA should not consider the comments on the February 2013 proposal concerning affirmative defe nse provisions in SIPs to no longer be relevant.”

Comment:

The Georgia EPD was among commenters who genera lly stated that the EPA had failed in the SNPR to consider other portions of Georgia’s SIP, in addition to Ga. Comp. R. & Regs. 391-3-1- .02(2)(a)(7), that apply to emissions during malf unction events, and that therefore the EPA had inappropriately determined that Georgia’s SI P is not in full compliance with the CAA.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.22, “Comme nts that the EPA should clarify that SIPs can include work practice standards or general-duty clauses to apply during malfunction periods in place of affirmative defense provisions.” To the extent th at Georgia EPD is claiming in their comment letter that the Georgia SIP contains provisio ns establishing appropria te alternative emission limits that apply during malfunction events, the Ge orgia EPD failed to identify any particular SIP provisions or explain how those provisions establish a continuous emission limitation in their comment letter.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

49 3. Comment of parties other than the state on the Georgia SIP

Comment:

Some commenters noted that, previous litigati on regarding Georgia Rule 391-3-1-.02(2)(a)(7) was resolved on appeal to the 11th Circuit, wh ich decided that the SIP provision does not create an “automatic exemption,” but rather provide s an “affirmative defense.” The commenters asserted that the appellate c ourt’s ruling resolved any ambigu ity about the meaning of the provision. One commenter further alleged that the EPA’s summary of this case in the February 2013 proposal is incorrect and inconsistent with how the EPA has interpreted the judicial decision previously.

Response:

The EPA disagrees with the commenters on this point. In the February 2013 proposal, the EPA explained in detail its reasons for proposing to grant the Peti tion with respect to this SIP provision. In particular, the EPA noted that the ev ident confusion over the proper interpretation of the provisions was a basis for concern and the 11th Circuit itself observed that the SIP provision may not have been consistent with th e EPA’s interpretation of the CAA. Regardless of whether Georgia Rule 391-3- 1-.02(2)(a)(7) is now interpre ted as an exemption or as an affirmative defense, the EPA has concluded that ne ither type of provision is allowed under the Act. As explained in the SNPR and in the notice of final action, the EPA believes the reasoning of the court in the NRDC v. EPA d ecision indicates that states, like the EPA, have no authority in SIP provisions to alter the jurisd iction of federal courts to asse ss penalties for violations of CAA requirements through affirmative defense provisions . If states lack autho rity under the CAA to alter the jurisdiction of the federal courts throug h affirmative defense provisions in SIPs, then the EPA lacks authority to approve any such provision in a SIP.

Comment:

One commenter noted that the Georgia SIP provisi ons provide an example of how a combination of numeric emission limits and work practice st andards can work together to establish a continuous emission limitation. The commenter sp ecifically stated that the SSM exemption provided in Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is only av ailable to sources if “the best operational practices to minimize emissions are adhered to,” “all associated air pollution control equipment is operated in a manner consistent with good air pollution control practice for minimizing emissions,” and “the duration of ex cess emissions is minimized.” The commenter noted that this SIP provision also may not apply to excess emissions “caused entirely or in part by poor maintenance, poor operation, or any ot her equipment or process failure which may reasonably be prevented during startup, shut down or malfunction are prohibited and are violations.” The commenter also cited to subpa ragraph (a)(10), which imposes a general duty on all sources to minimize emissions at all times. Th e commenter argued that “the combination of numeric emission limits, the general duty to mi nimize emissions, and the conditions imposed by the Georgia SIP ensures that sources are conti nuously subject to an emission limitation at all times.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

50 The commenter alleged that th ese provisions are substantially similar to those recently promulgated by the EPA in the MATS and Boiler MACT regulations.

Response:

The EPA agrees with the principle that a “con tinuous” SIP emission can be comprised of a combination of numerical limits, specific contro l requirements, and work practices, so long as the resulting emission limitation meets applicable CAA requirement s with respect to stringency and enforceability. The EPA disagrees with the commenter’s contention that the Georgia SIP complies with CAA section 302(k) by utilizi ng a “combination of numeric limits and work practice standards can ensure continuous emis sion limitation at a source.” The EPA believes this topic is adequately addressed in the not ice of final action and directs readers to section VII.A.3.m, “Comments that a ‘gener al duty’ provision—or comparable generic provisions that require sources to ‘exercise good engineering j udgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’—i noculate or make up for exemptions in specific emission limitations that apply to the source.”

The EPA also notes that it has not considered Georgia Rule 391-3-1-.02(2)(a)10 for the purposes of this rulemaking action because that rule is not part of Georgia’s federally approved SIP. However, even if it were part of the SIP, Ge orgia Rule 391-3-1-.02(2)(a)10 could not in its current form qualify as an alternative emi ssion limitation for startup, shutdown and malfunction sufficient to make the otherwise applicable emis sion limitations in Georgia’s SIP “continuous” as required by CAA section 302(k). While the EPA acknowledges that Georgia Rule 391-3-1- .02(2)(a)10 may be an appropria te separate requirement to impose upon sources under Georgia’s SIP in addition to the (continuous) emi ssion limitations, the exist ence of this general provision would not legitimize exempting excess em issions during SSM events from the otherwise applicable SIP emi ssion limitations.

Furthermore, the EPA disagrees with the commenter ’s assertion that similarities between the EPA’s recently adopted MATS and Boiler MACT regul ations and Georgia’s SSM provisions are such that the EPA must find Geor gia’s SSM provisions to be adequate. For example, in the MATS rule the EPA has developed emission limitations to address the relevant pollutants using a combination of numerical emission limitati ons and work practices. The work practice requirements specifically apply to sources durin g startup and shutdown and are thus components of the continuously applicable em ission limitations. The EPA believes this topic is adequately addressed in the notice of final action and dire cts readers to section IV.D.15, “Comments that the EPA is being inconsistent because rules pr omulgated by the EPA provide affirmative defense provisions for malfunction events.”

Comment:

One commenter argued that the affirmative defens e provision in Georgia’ s SIP does not assume that excess emissions during SSM periods are viol ations, but rather the provision establishes criteria for determining whether those excess em issions are a violation. The commenter believes that the Georgia SIP allows the “determination of a ‘violation’ to be made on a case-by-caseResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

51 basis.” The commenter alleged that this mean s Georgia’s SIP provisions comply with CAA section 302(k).

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.18, “Comments that em issions during malfunction periods are not ‘excess’ or ‘violations,’ but rather are part of the established SIP emission limitations.”


### d. Kentucky

1. Comment of the Kentucky Division for Air Quality (0473)

Comment:

The Kentucky Division for Air Quality stated th at the EPA acknowledges in the proposal that 401 KAR 50:055, Section 1(1) does not eliminate enforcement author ity of the EPA or citizens; instead, in the EPA's opinion, 401 KAR 50:055, Sec tion 1(1) supposedly “renders them less enforceable by the EPA or through a citizen suit. ” The Kentucky Division for Air Quality argued that instead, as the Division has pr eviously explained to the EPA in an interpretative letter, the provisions of 401 KAR 50:055 do not limit or exclude the authority of the EPA and citizens from taking enforcement action under sect ions 113 and 304 of the CAA.

Response:

As explained in the February 2013 proposal, the EPA acknowledges the Division’s 2011 letter to the EPA clarifying that the Division does not in terpret the provisions of 401 KAR 50:055 as limiting the authority of the EPA and citizens from taking enforcement action under sections 113 and 304 of the CAA when the state does not pursue enforcement. However, the EPA concludes that this provision is suffic iently ambiguous on this point to render the SIP substantially inadequate to satisfy CAA requirements governing SIP emission limitations in sections 110(a)(2)(A), 11 0(a)(2)(C), and 302(k). Sp ecifically, Kentucky’s regulations at 401 KAR 50:055 Section 1(1) provide: “Emissions which, due to shutdown or malfunctions, temporarily exceed the standard set forth by the cabinet shall be deemed in violation of such standards unless the requirements of this section are satisfied and the dete rminations specified in subsection (4) of this section are made.” Subsection (4) states that “[a] source shall be relieved from compliance with the standards set forth by the Cabinet if the director de termines, upon a showing by the owner or operator of the source” that certain conditions are met. The EPA concludes that these provisions are ambiguous regarding whether the di rector’s determination that a source meets the regulatory criteria would bar enforcement by the EPA or th rough a citizen suit and that a revision is necessary to eliminate this significan t ambiguity. As explained in the notice of final action, SIPs may not provide that air pollutant emissions abo ve the applicable limit are not considered violations and may not excuse sour ces from compliance. While the EPA agrees that the state has authority to exercise its own enforc ement discretion, the language of these sections exceeds that authority and could be construed to preclude enforcement by the Agency and others if the state elects not to enforce.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

52 Comment:

The Kentucky Division for Air Quality argued that the EPA's declarations that Kentucky's SIP exemptions are “automatic” fail to recognize the review process during episodes of excess emissions. A source must demonstrate that the criteria of 401 KAR 50: 055 Section 1(4) are satisfied.

Response:

For the reasons explained in the Februar y 2013 proposal, in the background memorandum supporting that proposal, and in the EPA’s responses to comments in the notice of final action, the EPA interprets the CAA to pr ohibit exemptions for excess em issions during SSM events in SIP provisions. This interpretation has long been reflected in the SSM Policy. Even if a source must demonstrate that certain criteria are satisfied before qualifying for an “automatic exemption,” this still exempts emissions from otherwise applicable emission limitations, which is contrary to CAA requirements.

Comment:

The Kentucky Division for Air Quality stated that the EPA has historically had sufficient time to identify and rule upon “impermissible provisions” of SIPs. The implication of the comment is that if these SIP provisions do not meet CAA requirements, then the EPA should have addressed this concern previously.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.18, “Comments that th e EPA’s initial approval of these deficient provisions, or subsequent indi rect approval of them through action on other SIP submissions, establishes that these provisi ons meet CAA requirements.”

Comment:

The Kentucky Division for Air Quality commented th at this SIP call may require the Division to amend many SIP provisions and promulgate un it and source-specific startup and shutdown provisions to address every possible case of ex cess emissions due to shut down and malfunction events. The Division expressed co ncern regarding potential “unint ended consequences” of this action.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for states to develop emission lim itations that apply duri ng startup and shutdown instead of existing exemptions” and section V.D.7, “C omments that the EPA was obli gated to address and justify the potential costs of the action and failed to do so correctly.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

53 Comment:

The Kentucky Division for Air Quality argued that there is no supporting evidence to indicate that Kentucky is not fulfilling its statutory oblig ations established under the Act and therefore that a SIP call is inappropriate.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”
2. Comment of parties other than the state on the Kentucky SIP

Comment:

One commenter alleged that the EPA misinterpreted 401 KAR 50:055 Section 1(1) and that this provision is actually an appropriate enfor cement discretion provision. According to the commenter, Section 1(1) refers to specific standa rds in Section 1(4), which lay out parameters for the exercise of discretion by the Director.

The commenter further argued that the EPA is incorre ct in stating that there is no public process after the Director acts under 401 KAR 50:055 Section 1(1). The public is able to access facilities’ notice of the excess emissions, the show ing made by the source that the criteria for relief from compliance have been met, and the Division’s response to the request because of the Kentucky Open Records Act at KRS Chapter 61.

Response:

The EPA disagrees with the commenter. With re spect to the commenter ’s contention that 401 KAR 50:055 § 1(1) does not establish an exemption but rather, “sets specific boundaries in the exercise of discretion by the Director,” the EPA c oncludes that this prov ision is sufficiently ambiguous on this point to render it insufficient to sa tisfy the fundamental requirements of the CAA with respect to emission limits in SIPs in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). Specifically, Kentucky’s regulat ions at 401 KAR 50:055 Section 1(1) provide: “Emissions which, due to shutdown or malfunctions, temporarily e xceed the standard set forth by the cabinet shall be deemed in violation of such standards unless the requirements of this section are satisfied and the determinations specified in subsection (4) of this section are made.” Subsection (4) states that “[a] source shall be relieved from compliance with the standards set forth by the Cabinet if the director determines, upon a showing by the ow ner or operator of the source” that certain conditions are met. The EPA conc ludes that these provisions are ambiguous regarding whether the director’s determination t hat a source meets the regulatory criteria would bar enforcement by the EPA or through a citizen suit and that a revisi on is necessary to elim inate this significant ambiguity.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

54 With respect to the comment regarding public process, the EPA understands that Kentucky’s rules may have procedures for additional public process at the state le vel. Such procedures, however, would not eliminate the significant ambiguity in Kent ucky’s regulations regarding whether the director’s determination that a source meets the regulat ory criteria would bar enforcement by the EPA or through a citizen suit. Moreover, the fact that the public may be able to learn about the regulatory decisions made by the state agency through a public records law is not the same as providing a role for the pub lic in commenting on thos e decision, e.g., through a notice and comment rulemaking on a SIP revision r evising a SIP emission limitation before it is submitted to the EPA for evaluation.

Comment:

One commenter noted that the EPA issued a SIP call for Louisville Air Pollution Control District’s Regulation 1.07. Accord ing to the commenter, that regulation has been revised and submitted to the EPA for SIP approval. The commenter believes that rather than issue a SIP call, the EPA should address the SIP amendment that was submitted in 2011.

Response:

The EPA has now acted upon the rel evant portions of the 2011 Loui sville Air Pollution Control District SIP submission refe renced by commenter. See 79 FR 33101 (June 10, 2014). In that action, the EPA approved a revision to the Jeff erson County portion of the Kentucky SIP to incorporate revisions to Jefferson County Regulation 1.07, “Emissions During Startups, Shutdowns, Malfunctions and Emergencies.” The revi sion modified all seven sections of the previous version of SIP Rule 1.07 for Jefferson County. These c hanges are consistent with CAA requirements that apply to excess emissions during startup, shutdown and malfunction (SSM) events and have corrected concerns about Rule 1.07 in the Jefferson County portion of the Kentucky SIP. Accordingly, the EPA is not issuing a SIP call in this action with respect to this provision.


### e. Mississippi

1. Comment of the Mississippi Department of Environmental Quality (MDEQ) (0139)

Comment:

The Mississippi Department of Environmental Qu ality (MDEQ) commented that the EPA should be working individually with states to correct any deficiencies in their SIP provisions instead of issuing a SIP call. The MDEQ argued that th e EPA’s proposed SIP call is a violation of cooperative federalism envisioned by the CAA. The CAA gives states broad discretion.

Response:

The EPA will work with states to correct the defic iencies identified in this action. In addition, the EPA is providing comprehensive and up to date guidance to states concerning CAAResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

55 requirements for SIP provisions applicable to emissions from sources during SSM events. The EPA disagrees that this action is a violation of the principles of cooperative federalism. The EPA believes this topic is adequately addressed in the notice of fi nal action and directs readers to section V.D.2, “Comments that EPA’s action on the Petition violates ‘cooperative federalism.’”

Comment:

The MDEQ commented that the 18-month deadline for action is too brief.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.24, “Comments that th e EPA should provide more than 18 months for the SIP call because state la w administrative process can take longer than that.”

Comment:

The MDEQ noted that it is in attainment fo r the NAAQS for all pollutants, which therefore demonstrates that no SSM event in Mississippi has ever caused a violation of the NAAQS. The MDEQ alleged that the EPA is inappropriately using the SIP call mechanism here, which is only meant for the EPA to notify states if SIP pr ovisions are deficient to protect the NAAQS.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.17, “Comments that bec ause areas are in attainment of the NAAQS, SIP provisions such as automatic exempti ons for excess emissions during SSM events are rendered valid under the CAA.”

Comment:

The MDEQ alleged that the EPA failed to cons ider Section APC-S-5, Section 7, which allows MDEQ to take actions to prevent NAAQS violati ons. In issuing this SSM SIP call, the EPA will require the states to devote already stretched resources to develop SIP submissions that will not improve public health and welfare.

Response:

MDEQ’s authority to require emission reducti ons by sources that are found to cause exceedances of the NAAQS does not eliminate the de ficiencies in Mississippi’s SIP that are addressed by this SIP call. Section 110(k)(5) exp licitly authorizes the EPA to make a finding that a SIP provision is substantiall y inadequate to “comply with any requirement of” the CAA, in addition to the authority to do so where a SIP is inadequate to attain and maintain the NAAQS or to address interstate transport. The EPA belie ves this topic is adequa tely addressed in the notice of final action and directs readers to se ction VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

56 The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.26, “Comments that a SIP call directing states to eliminate exemptions for excess emissions during SSM events is a ‘paper exercise’ or ‘exalts form over substance.’”
2. Comment of the MDEQ (0940)

Comment:

The Mississippi Department of Environmenta l Quality (MDEQ) was among commenters who generally stated that the EPA relied on an imprope r interpretation of the D. C. Circuit’s opinion in NRDC v. EPA in the SNPR. MDEQ believes the EPA was wrong to rely on the NRDC decision in the SNPR because the D.C. Circuit did not evaluate the propriety of the inclusion of affirmative defense provisions in SIPs.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.2, “Comments that the EPA is misapplying the decision of the D.C. Circuit in NRDC v. EPA to SIP provisions b ecause the court did not address the legality of affirmative defense provisions in SIPs.”

Comment:

MDEQ was among commenters that argued that a ffirmative defense provisions for malfunctions do not act as a jurisdictional bar to CAA civil penalties because the affirmative defense provisions provide potential relief from SIP penalties.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.34, “Comme nts that affirmative defense provisions do not alter or eliminate federal court jurisdiction and theref ore do not violate CAA sections 113 or 304.”

Comment:

MDEQ was among commenters who stated that the EPA failed to show in the supplemental proposal that SIP provisions cont aining affirmative defenses for malfunctions are “substantially inadequate,” as required by CAA section 110(k)(5).

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.20, “Comments that th e EPA has failed to show state SIPs are substantially inadequate, as is requ ired to promulgate a SIP call.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

57 Comment:

MDEQ was among commenters who stated that SIP provisions that pr ovide affirmative defenses for periods of malfunction are needed to provide operational flexibility so facilities can respond to malfunctions in the best manner to mini mize emissions. Further, MDEQ claimed that affirmative defense provisions for malfunctions ar e needed to protect sour ces from being subject to onerous fines for emissions that are not within the sour ce’s control. MDEQ was among commenters who stated that the EPA failed in the SNPR notice to consider the feasibility of controlling emissions during malf unction periods. MDEQ asserted that the EPA’s position that all malfunction can be controlled is wrong and inc onsistent with four decades of implementation of and compliance with the CAA.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section IV.D.8, “Comme nts that affirmative defense provisions are needed or appropriate because sources cannot control malf unctions or the excess emissions that occur during them” and section IV.D. 35, “Comments that this action may incr ease the chance of catastrophic failure at facilities.”

Comment:

MDEQ was among commenters that claimed finaliz ation of the SIP call proposed in the EPA’s SNPR would result in sources being subject to inconsistent regulation throughout the country. MDEQ asserted that rather than having a brig ht-line rule allowing for affirmative defense provisions in SIPs, there will be inconsistent rule s among states leading to inconsistent regulation of air pollution throughout the country. MDEQ noted that the EPA acknowledged in the SNPR that circumstances surrounding an excess emission event should be presented to a court as a factor impacting the penalty assessed by the cour t, but MDEQ believes th at without the clear regulatory framework provided by affirmative defens e provisions, each court is likely to evaluate malfunction events differently. This, MDEQ clai med, will lead to inconsistent enforcement throughout the country.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.10, “Comment s that the elimination of af firmative defense provisions will result in sources’ facing inconsistent treatm ent by courts or states when excess emissions are emitted during ma lfunction events.”

Comment:

MDEQ was among commenters that stated that if the EPA is going to take the action proposed in its February 2013 proposal and the SNPR, the EPA should act in a comprehensive rule rather than through two separate rulemaking notices. MDEQ claimed that by proposing two separate rules, the EPA has placed states and the regulated i ndustry in a difficult predicament becauseResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

58 states and the regulated indus try do not know the entire pr oposed regulatory action when commenting on the EPA’s proposal regard ing affirmative defense provisions.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.11, “Comments that the EPA should have acted in a single, comprehensive rulemaking rather than issu ing the supplemental notice of proposed rulemaking.”



### f. North Carolina

1. Comment of the North Carolina Department of Environment and Natural Resources Division of Air Quality (NCDAQ) (0619)

Comment:

NCDAQ commented that the SSM provisions identified by the EPA in North Carolina’s SIP as deficient in the February 2013 propos al are part of an effective ove rall strategy in the state to achieve and maintain the NAAQS. NCDAQ belie ves that the EPA’s proposal focuses on only one part of a complex regulatory program, and th is fails to meet the demonstration required under section 110(k)(5).

Response:

The EPA disagrees with the commenter on this is sue. The premise of the comment is that individual SIP provisions do not have to meet fundamental requireme nts of the CAA, so long the deficient provisions are part of a larger “s trategy” for attainment and maintenance of the NAAQS. The specific provisions at issue in this action are director’s disc retion provisions that authorize state officials, in eff ect, to revise the otherwise app licable SIP emission limitations without meeting the statutory requ irements for SIP revisions. This authority in these provisions explicitly extends to granting ad hoc exemptions from the otherwise applicable SIP emission limitations through unilateral decisions of state officials, which w ould preclude the ability of the EPA or other parties to seek to bring an enfor cement action for the excess emissions during those events. For the reasons described more fully in the final notice, the EPA does not interpret the CAA to permit such unbounded director’s discretion provisions in SIPs. To the extent that the commenter is arguing that the EPA should overlook the deficient provisions due to the existence of other provisions in the SIP or arguing t hat the EPA did not prove that these deficient provisions have caused a specific NAAQS violat ion, the EPA believes these topics are adequately addressed in the notice of final action and dire cts readers to section VIII.D.13, “Comments that EPA has to evaluate a SIP ‘as a whole’ to have the authority to issue a SIP call,” and section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

59 Comment:

NCDAQ alleged that the EPA has improperly in terpreted the terms “emission limitation” and “emission standard” under CAA section 302(k). According to NCDAQ, nothing supports the EPA’s “apparent interpretation that an emissions standard is limite d to a numerical standard that applies at all times.” NCDAQ noted that it uses a combination of numerical emission limits and work practice standards, which is permissi ble under the CAA. NCDAQ noted that the EPA recognizes that not all numerical standards are achiev able during all phases of a unit’s operation.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.j, “Comments that an emission limitation can be ‘continuous’ even if it has different numerical limitati ons applicable during some mode s of source operation or has a combination of numerical emission limitations and specific control te chnologies or work practices applicable during other modes of operation.”

Comment:

NCDAQ commented that the EPA is inappropri ately proceeding with a SIP call without going through appropriate rulemaking procedures. NCDAQ be lieves that if the EPA wants to preclude SSM provisions from SIPs, the Agency should ma ke regulatory changes to 40 CFR Part 51 to articulate that interpretation.

Response:

The EPA disagrees with the commenter’s basic premise, as the Agency is following notice and comment procedures as part of this action. To the extent that the comme nter argues that a SIP provision must contravene a sp ecific regulatory provision in or der to violate the statutory provisions of the CAA, the commenter is in error. The EPA believes th is topic is adequately addressed in the notice of final action and direct s readers to section V.D.4, “Comments that the EPA should create regulatory text in 40 CFR Part 51 to forbid SSM exemptions in SIP provisions if the CAA precludes them.”

Comment:

NCDAQ alleged that the EPA was incorrect in proposing that the SSM SIP call will not have significant economic impact on a large number of small entities under the Regulatory Flexibility Act. NCDAQ stated that, at a minimum, the EPA should account for all of North Carolina’s costs for revising its rules and all air quality permits that contain the alleged improper SIP provisions.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.7, “Comments that th e EPA was obligated to address and justify the potential costs of the action and failed to do so correctly.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

60 Comment:

NCDAQ argued that North Carolina’s SIP provi sion identified in the EPA’s February 2013 proposal does not improperly limit enforcement under CAA sections 113 and 304. According to NCDAQ, “[n]othing in the existing SIP provisions prohibits or restri cts in any way the ability of the EPA and/or a citizen to file an action in federal court seeking enforcement of the SIP provisions.”

Response:

For reasons explained fully in the February 2013 proposal, the EPA proposed to grant the Petition with respect to 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g). Consequently, the EPA proposed to fi nd that 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g) are substantia lly inadequate to meet CAA requirements and thus proposed to issue a SIP call with respect to these provisions. The EPA determined that the SIP provisions at issue aut horize state officials to grant discretionary exemptions from compliance with otherwise applicable SIP emissi on limitations, and this aut hority would operate to preclude enforcement by the EPA or others pu rsuant to the citizen su it provision. NCDAQ has provided no arguments in its comments that th e EPA believes provide a basis for altering this action. Therefore, in its final action, the EPA is granting the Petition with respect to 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admi n. Code 2D.0535(g) and finding that these provisions are substantially inadequ ate to meet CAA requirements.

Comment:

NCDAQ commented that the EPA’s proposed action represents a shift in interpretation of the CAA that runs counter to over 30 years of precedent. Accordingly, NCDAQ believes that the EPA is not entitled to any legal or factual deference on this action.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.n, “Comments that EPA’ s action on the petition is a ‘change of policy.’”

Comment:

NCDAQ alleged that the EPA’s pr oposal runs afoul of the federa l/state partnership envisioned by Congress when it enacted the CAA. The EPA s hould give deference to state decisions on how to draft SIP provisions to best ach ieve air quality improvements.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates cooperative federalism.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

61 Comment:

NCDAQ argued that North Carolina’s SIP, as a whol e, is an effective tool to ensure that the NAAQS are attained and maintained in the stat e. NCDAQ believes that the EPA has failed to provide any analysis showing that the North Carolina SIP is substa ntially inadequate to meet the NAAQS or otherwise comply with CAA requirements.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”


### g. South Carolina

1. Comment of the South Carolin a Department of Health and Environmental Control (DHEC) (0533)

Comment:

The South Carolina DHEC commented that 18 m onths is an insufficient amount of time for South Carolina to revise its SIP prov isions in response to the SIP call.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.24, “Comments that th e EPA should provide more than 18 months for the SIP call because state la w administrative process can take longer than that.”

Comment:

The South Carolina DHEC argued that the EPA’ s proposed action contra dicts the EPA’s own actions because the EPA has promulgated many emissions standards under 40 CFR Parts 60 and 63 that exempt SSM events.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.a, “Comments that the EPA’s proposed action on the Petition is incorrect because some of the Agency’s own regulations contain exemptions for emissions during SSM events.”

Comment:

The South Carolina DHEC expressed concern that the EPA’s action is being taken in response to a settlement agreement that did not allow th e participation of th e affected states.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

62 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.1, “Comments that the EPA should not have responded to the petition for rulemaking or that the EPA was wrong to do so.”
2. Comment of the South Carolina DHEC (0925)

Comment:

The South Carolina DHEC was among commenters who generally stated that the EPA should work with each state’s air agency to identify and address SIP deficienci es instead of using the SIP call action proposed in the SNPR. The S outh Carolina DHEC believes that the EPA and states should together work through the normal ru lemaking processes and SI P revision process to correct whatever known deficiencies exist.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.41, “Comments that in stead of acting through a nationwide SIP call action, the EPA should have worked individually with states to correct any deficient SIP provisions.”

Comment:

The South Carolina DHEC noted that in the supp lemental proposal, the EPA cited a version of Regulation 61-62.1, Section II, whic h has since been revised by the Department. According to the South Carolina DHEC, the Department submitte d a revised version of this SIP provision to the EPA for approval in 2007, but that SIP pack age has not yet been approved by the EPA.

Response:

In the SNPR, the EPA proposed to issue a SIP call with respect to S.C. Code Ann. Regs. 62.1, Section II(G)(6). In that proposed action the EPA cited the South Carolina regulation that is in the state’s current federally approved SIP. South Carolina commented that the state has adopted and submitted for the EPA’s approval a regulation streamlining package with revisions to the rule-numbering scheme of thei r SIP. That package, submitted to the EPA on October 1, 2007, includes no substantive revisions to the text of the rules that the EPA has proposed for this SIP call. However, under the 2007 SIP revision, the pr ovision that the EPA proposed for SIP call in the SNPR would be cited as SC Regulation 61-6 2.1, Section II(L). The EPA understands that the processing of South Carolina’s October 1, 2007, SIP r evision is a priority for the state, and the EPA intends to act on it as soon as possible. However, the streamlining package does not address the problematic SSM provis ions in South Carolina’s SIP t hat are addressed by this SIP call. The EPA commits to working closely wi th South Carolina to develop an approvable SIP revision that is consistent with the guidance ar ticulated in the updated SS M Policy in this final action.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

63 

### h. Tennessee

1. Comment of the Tennessee De partment of Environment & Conservation (Tennessee DEC) (0547)

Comment:

The Tennessee Department of Environment & C onservation (Tennessee DEC) stated that it generally disagrees with the EP A’s position that 110(k)(5) does not require a “showing that the effect of a SIP provision that is facially inconsistent with CAA requirements is causally connected to a particular adverse impact.” 78 FR 12459 at 12483–84. Tennessee DEC noted that the state's regulations do not allow an SSM ev ent to cause or signifi cantly contribute to a NAAQS nonattainment event.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”

Comment:

The Tennessee DEC commented that the EPA’s propos al violates the princi ples of cooperative federalism, particularly because the proposal relies on “speculative as opposed to actual demonstrated problems to lead to a finding of ‘substantial inadequacy’ in a” SIP.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

The Tennessee DEC alleged that the EPA’s in terpretation of the de finition of “emission limitation” in section 302 is flawed. The Tenness ee DEC stated that the EPA is applying this term out of context in requiri ng that a single standard apply to limit emissions on a continuous basis regardless of th e mode of operation.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.A.3.j, “Comments that an emission limitation can be ‘continuous’ even if it has different numerical limitati ons applicable during some mode s of source operation or has a combination of numerical emission limitations and specific control te chnologies or work practices applicable during other modes of operation.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

64 Comment:

The Tennessee DEC argued that, because opacity is not itself a “pollutant as defined in the CAA,” the EPA’s determination that emissi on limitations must apply continuously is inapplicable to opacity or visible emissions.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.r, “Comments that exemptions in opacity standards should be permissible because opacity is not a NAAQS pollutant.”

Comment:

The Tennessee DEC disagreed with the EPA’s c onclusion that the stat e’s SSM SIP provisions could be interpreted to limit enforcement ac tions by the EPA or citi zens. The Tennessee DEC stated that the SSM SIP provisions at issue in the EPA’s rulemaking are about enforcement discretion and do not limit the ability of the EPA or citizens to pursue enforcement. The Tennessee DEC claimed that the SIP provisi ons do not allow unfe ttered action by the Department, but rather establish explicit procedur es that the state must follow that are reflective or real world conditions and protect the NAAQS.

Response:

The EPA disagrees with commenter’s assertion t hat the cited Tenn. Comp. R. & Regs. at 1200-3- 20-.07(1) and (3), and 1200-3-5-.02(1), do not crea te ambiguity that could lead to a court interpretation that these rules would block a lawsuit by the E PA or members of the public following an “excusal” by the Technical Secretar y. Beyond this assertion, the commenter offers no support for its view that these provision do not create such an ambiguity. As described in the EPA’s proposal, nothing in the Tenn. Comp. R. & Regs. 1200-3-20-.07(1) and Tenn. Comp. R. & Regs. 1200-3-20-.07(3) limits the ap plicability of the enforcement discretion provisions to only the state’s own enforcement personnel. Nor is there any limitation to applicability of the Technical Secretary’s determination pursuant to Tenn. Comp. R. & Regs. 1200-3-5-.02(1) to excuse excess visible emissions after giving “due allowance” to the fact that they were emitted during startup or shutdown events. Because these three provisions could reasonably be interpreted to preclude the EPA and citizens from enforcing app licable SIP emission limitations, the EPA concludes that Tennessee’s SIP is substantially inadequate to satisfy the requirements governing SIP emission limitations in CAA sect ions 110(a)(2)(A), 110(a )(2)(C), and 302(k). For further discussion on this topic, readers may re fer to VII.C.3.b, “Comme nts that director’s discretion provisions are an exercise of ‘enforcement discretion.’”

Comment:

The Tennessee DEC commented that the EPA is inappropriately review ing rule 1200-3-5-.02(1) in isolation instead of viewing the provision wi thin the context of the whole state SIP. The Tennessee DEC notes that the stat e SIP also includes rule 1200-3- 20-.08(1), which prohibits anResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

65 SSM event from causing or significantly cont ributing to an exceedance of the NAAQS. The Tennessee DEC also cites to rule 1200-03-20-.06(6), which similarly st ates that “[i]rrespective of the startup and shutdown exemptions..., no emissi on shall be allowed which can be proved by the Technical Secretary to cause or contribute to a ny violations of the” NAAQS. According to the Tennessee DEC, this rule is part of Tenness ee state regulations and was submitted to the EPA for incorporation into the Tennessee SIP.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.m, “Comments that a ‘general duty’ provision—or comparable generic provisions that require sources to ‘exercise good engin eering judgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’ —inoculate or make up for exemptions in specific emission limitations t hat apply to the source.” 

### 2.5 Affected State Rules in EPA Region V

a. Illinois

1. Comment of parties other than the state on the Illinois SIP

Comment:

One commenter stated that Illinois’s startup and malfunction/breakdown provisions subject to the EPA’s proposed SIP call, 35 Ill. Admin. Code §§ 201.261, 201.262, and 201.265, were originally promulgated by the Illinois Pollution Control Board in April 1972 and the EPA approved the provisions for incorporation into Illinois’s SIP on May 31, 1972. The commenter stated that the Board’s Opinion discussing the regulatory intent behind the provisions indicates that they were promulgated to provide author ity to Illinois EPA to use its discretion, upon a showing of adequate proof, to allow operati on during startup or malfunction/breakdown on a case-by-case basis. The commenter charged that Sierra Club’s petition mischaracterizes the provisions as providing “advance permission” to exceed emission limits during startup or a malfunction/breakdown. The commenter believes that “Illinois’s provisio ns require that an owner/operator submit substantial information to Illinois EPA for review to determine whether the particular facility has met the rule’s burde n for a specific emission unit to be allowed to operate during startup or during a malfunction/ breakdown in accordance with the EPA approved startup and malfunction/breakdown provisions and makes this de termination on a case-by-case basis.”

Response:

Regardless of how the Sierra Club characteri zes Illinois’s startup and malfunction/breakdown provisions, the EPA believes that the language of the Illinois SIP on its face appears to permit a state official to grant advance permission to continue to operate during a malfunction or breakdown or to violate applicable standards or limitations during st artup. See the EPA’s proposed rule at 78 FR 12459 at 12514. Furthermor e, Il. Admin. Code tit. 35 § 201.261, Ill.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

66 Admin. Code tit. 35 § 201.262, and Ill. Admin. C ode tit. 35 § 201.265 can be read to create exemptions by authorizing a state official to dete rmine in the permitting process that the excess emissions during startup and malfunction will not be considered violations of the applicable emission limitations. For further discussion on this topic, readers may refe r to section VII.C.3.e, “Comments opposed to the EPA’s approach on the premise that there is no ‘director’s discretion’ concern if the SIP provision create s a permit program through which state officials grant sources variances or exemptions fr om otherwise applicable SIP provisions.”

Comment:

One commenter stated that the EPA Administrato r has issued two Orders objecting to the SSM provisions in the title V operating permit for Un ited States Steel Corpor ation’s Granite City Works (“USS-GCW”) facility, a large iron and steel manufacturing plant in Granite City, Illinois, yet, according to the commenter, the permit provisions remain unchanged. The commenter believes that the history of this case underscores the need for Illinois to overhaul its SIP’s SSM provisions. The comme nter stated that when USS- GCW applied for its title V operating permit in 1996, it included a collection of IEPA forms re questing permission to operate various emission units during ma lfunctions and during startup. The commenter argued that although the forms contained almost no informa tion about the future circumstances surrounding the malfunctions and startup events that woul d result in excess emissions/violations, IEPA granted USS-GCW’s applications. The commen ter noted that, although the EPA could not critique the legality of the Illi nois SIP’s SSM provisions in the c ontext of the titl e V review, the Administrator objected to the title V permit because the IEPA’s failed to satisfy the SIP’s SSM Provisions. The commenter stated that in response to the Ad ministrator’s objection, IEPA provided a convoluted explanation of the meaning of its SIP’s SSM provisions that is at odds with the provisions’ plain meani ng and made no changes to the ti tle V permit it reissued in May 2011. The commenter noted that the Administrator again objected to the revised permit. In response to the EPA Administrator’s sec ond objection, USS-GCW submitted additional paperwork that was extremely general in nature, in cluding no case-by-case an alysis of particular SSM events. According to the commenter, IE PA nonetheless again reissued the USS-GCW title V permit in March 2013 without changing its SSM provisions. IEPA conceded that USSGCW’s supplementary SSM information “was nece ssarily general in natu re, addressing ‘typical’ and worst-case malfunction or breakdown events.” The commenter state that, while IEPA offers some reasons why information provided in advan ce of an SSM event, particularly one involving a malfunction or breakdown, is difficult to predic t, that difficulty does not mean that USS-GCW is entitled to advance permission to exceed em ission limits during SSM events. To the contrary, the commenter believes it means that, unless USS- GCW satisfies the express requirements of the regulation, it is not en titled to such advance permission. The commenter argued that IEPA’s approval of USSGCW’s initial, pro forma application, suggests that dozens of facilities across the State of Illinois may have similar advance permissions to exceed/violate limits in their operating permits based on virtually none of the documentation required by the (unlawful) Illinois SIP provisions. The commenter alleged that even th e additional “documentation” that USS-GCW ultimately provided was too general in nature to qualify for the advance permission contemplated by the (unlawful) Illinois SIP. Th e commenter noted that the SIP’s concept of a facility’s submitting adequate documentation to justify a present decision to allow excessive emissions at an unknown future event, the ci rcumstances of which are unknown and likelyResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

67 unknowable, is untenable and ultimately unla wful. The commenter stated that the SIP undermines the express requirements of the CA A for enforceable emissions limitations that apply on a continuous basis, and it authorizes IEPA to, in effect, exempt facilities from meaningful accountability for their future emissions.

The commenter asserted that emissions from the United States Steel Corporation’s Granite City Works facility are frequently sufficiently visible and/or odorous that reside nts take pictures of apparent SSM events. With the Illinois SIP’s scheme granting USSGCW advance permission to exceed/violate its emission limits during periods of malfunction/startup, the commenter added, SIP enforcement is unlawfully compromised and the community bears the brunt. The commenter respectfully urged the EPA to make final its prop osed action with respect to the Illinois SIP.

Response:

The EPA appreciates the case study presented by th e commenter to illustrate the difficulties associated with granting advance permissi on for excess emissions during startup and malfunction through the permitting process. As stat ed in the EPA’s proposed and final rules, the EPA believes that the provisions in the Illinois SIP at Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 201. 262, and Ill. Admin C ode tit. 35 § 201.265 that allow for exemptions from the otherwise applicable emission limitatio ns are inconsistent with the fundamental requirements of the CAA.



### b. Indiana

1. Comment of parties other than the state on the Indiana SIP

Comment:

One commenter asserted that the EPA’s propos ed SIP call regarding 326 Ind. Admin. Code 1-6- 4(a) exceeds the EPA’s statutory authority and is unnecessary, counterproductive, and clearly designed to allow the EPA’s affirmative defe nse approach to be mandated. The commenter alleged that Section 1-6-4(a) is a limited enforcement discretion provision applicable to state personnel, rather than a provision allowing exempti ons from emission limitations, as is stated in the SIP provision and in an interpretative letter Indiana submitted to the EPA in 1984. The commenter further claimed that Indiana has made clear that this provision does not bar enforcement by the EPA or citizens. The commenter argued that Section 1- 6-4(a), as explained by Indiana’s 1984 interpreta tive letter, is a permi ssible limited enforcement discretion provision.

Response:

To the extent that the commenter suggests that 326 IAC 1-6-4(a) es tablishes an acceptable affirmative defense provision, the EPA notes that, as discussed in the SNPR, affirmative defense provisions are not consistent with CAA requi rements. In addition, the EPA disagrees with the commenter that the language in 326 IAC 1-6- 4(a) establishes an enforcement discretion approach that is consistent w ith the CAA. A hallmark of the CAA requirements for SIP provisions is that the release of excess emissions must be treated as violations. Yet, the title ofResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

68 this subsection is “Malfunctions Not Necessarily Violations.” In addition, the SIP provision includes several criteria that are not acceptable, e.g., the source must demonstrate that “Malfunctions have not exceeded five percent (5%) , as a guideline, of the normal operating time of the facility.”


### c. Michigan

We received no comments on the provisions of the Mi chigan SIP at issue in this action that were so specific as to be included in this document.



### d. Minnesota

We received no comments on the provisions of the Minnesota SIP at issue in this action that were so specific as to be included in this document.



### e. Ohio

1. Comment of the Ohio Environm ental Protection Agency (0532)

Comment:

The Ohio Environmental Protection Agency (“Ohio EPA”) was among commenters who argued that CAA section 110 provides st ates with broad discretion in developing their SIPs and that the EPA exceeded its authority in this proposed SIP call.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

The Ohio EPA was among commenters who sup ported the use of interpretive letters.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VI.D.1, “Comments that suppo rted the EPA’s interpretation of the CAA to allow reliance on interpretive letters to clarify ambiguities in state SIP submissions.”

Comment:

The Ohio EPA commented that including the allege d proposed change in po licy in the SIP call is procedurally deficient, as only 36 states are involved in the pro posed SIP call while the changed policy applies nationwide.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

69 Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section V.D.5, “Comments that the E PA did not provide a suff iciently long comment period on the proposal in general or as contemplated in Executive Order 13563” and section V.D.8, “Comments that the EPA’s action violates procedural requirements of the CAA or the APA, because the EPA is acting on the Petition, updating its SSM Policy and applying its interpretation of the CAA to specific SIP provisions in one action.”

Comment:

The Ohio EPA was among commenters who expre ssed concern that the EPA has not involved stakeholders in the process.

Response:

The EPA does not agree with the commenter’s s uggestion that stakehol ders have somehow not been provided opportunity to be involved in th is process. The EPA has pr ovided notice of this SIP call and proposed policy change to the public. The EPA has been open and clear about the Agency’s course of action with respect to finalizing this SI P call and proposed policy change. There has been broad public and stakeholder discu ssion and discourse of th e associated issues. Many stakeholders, including from Ohio, have submitted comments setting forth various positions on the proposed actions.

Comment:

The Ohio EPA was among commenters that genera lly stated that the SIPs taken as a whole— including the SSM provisions—are sufficient to attain and maintain the NAAQS.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call” and section VIII.D.7, “Comments that the EPA failed to consider how excess emissions resulti ng from SSM exemptions would affect compliance with specific NAAQS, including NAAQ S with different averaging peri ods or different statistical forms.”

Comment:

The Ohio EPA asserted that OAC 3745-15-06(A)(3 ) does not exempt emission limit violations. The Ohio EPA believes the EPA and the Petitioner have misinterpreted OAC rule 3745-15- 06(A)(3) and have made overly broad assumptions about the scheduled maintenance events. The Ohio EPA argues that the director ’s discretion associated with this rule is not unbounded because it is subject to public notice and appeal. Furthe r, the Ohio EPA argues that the director’s approval authority is restrained by the measures in the rule th at must be evaluated before authorization is granted.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

70 Response:

The EPA disagrees with this comment. Under OA C 3745-15-06(A)(3), a state official may be the unilateral arbiter of whether excess emissions dur ing certain maintenance events constitute a violation, which is inconsistent with CAA requirements. The pr ovision authorizes the state official to allow continued operation at s ources during scheduled maintenance. The state official’s grant of permission to continue to operate during the period of maintenance could be interpreted to excuse excess emissions during th at period and could thus be read to preclude enforcement by the EPA or citizens. In addition, this provision does not require any additional public process in order for the state official to exercise unilateral power to grant an exemption from otherwise applicable SIP emission limit ations. Although OAC 3745- 15-06(A)(3) has a few limitations, including that a source must submit a report indicating the expected length of the event and estimated quantities of emissions, ultimat ely the state official can grant permission to continue operation “if, in his judgment, the situation justifies continued operation of the sources.” The state official’s discretion is th erefore not sufficiently bounded and extends to granting a complete exemption from applicable em ission limitations. States have great discretion to devise SIP provisions, but they do not have di scretion to create provisions that contradict fundamental legal requirements of the CAA. For further discu ssion on this topic, readers may refer to section VII.C.3.a, “Comments that broad state discretion to develop SIP provisions includes the authority to create provisions that include director’s discretion variances or exemptions for excess emission during SSM events.”

Comment:

The Ohio EPA argued that OAC 3745-17-07(A)(3)(c ) and 3745-17-07(B)(11)(f ) do not preclude the EPA or citizens from undertaking an enforcemen t action against a facil ity for an exceedance of an emission limitation during a malfunction. Si milarly, the Ohio EPA cited to enforcement cases related to OAC 3745-15-06, and argued that this demonstrates the ability of a citizen to file an enforcement case against a potential violator , which Ohio EPA argues contradicts the EPA’s assertion that federal or citizen suit right s are undermined by the cu rrent rule language. According to the Ohio EPA comment, a federa l court found that the language in OAC 3745-15- 06 contains objective standards that are enfo rceable through the citizen suit provisions. Freeman v. Cincinnati Gas & Electric Co., 2005 WL 2837466 (S.D. Ohio 2005).

Response:

As explained in the proposal notice, the EPA determined that OAC 3745-17-07(A)(3)(c), 3745- 17-07(B)(11)(f), and 3745-15-06 ar e impermissible unbounded director ’s discretion provisions that make a state official the unilateral arbite r of whether the excess emissions in a given event constitute a violation. The juri sdiction of fede ral courts to determine liability and to impose statutory remedies for violati ons of SIP emission limitations is a fundamental CAA requirement. As set forth in more detail in the proposal notice, the EPA believes that SIP provisions that function to alter the jurisdicti on of the federal courts under C AA section 113 and section 304 to determine liability and to impose remedies are in consistent with fundamen tal legal requirements of the CAA. The fact that citi zens or the EPA would have the power to bring suit in cases where,Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

71 in their view, the director’s discretion may have been applied contrary to the Act, does not save such provisions. For further discussion on this topic, readers may refer to section VIII.D.22, “Comments that the EPA’s position that SIP provis ions such as automatic exemptions for excess emissions during SSM events hinder effective enfo rcement for violations is incorrect, because there have been a number of citiz en suits brought under the CAA.”

Comment:

The Ohio EPA commented that the “exemption from a reported opacity exceedance, provided that reporting emission limit vi olations are triggered by the interconnected requirements of OAC 3745-15-06(8), 3745-17-07(A)(3)(c) and 3745-17- 07(B)(11)(f), is reasonable and does not contradict the ability of Oh io to assure compliance with PSD and NAAQS requirements under the CAA.” The Ohio EPA argued that because the EPA can only disapprove a SIP if it would interfere with the state’ s ability to attain or maintain th e NAAQS, the EPA does not have a valid basis for issuing this SIP call.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to “prove causation” to have authority to issue a SIP call.”

Comment:

The Ohio EPA commented that OAC 3745-15-06(C) does not exempt emission limit violations, including during malfunction events. The Ohio EPA argued that it has taken the position in correspondence, guidance, and implementation th at all exceedances of emission limits are violations of applicable permitted emission limits unless explicitly exempted by federal regulations.

Response:

Regulatory provisions should be clear and unambi guous on their face. In this rulemaking, the EPA is issuing a SIP call with respect to certai n, identified director’s discretion provisions applicable to emissions during SSM events becaus e SIP provisions cannot contain director’s discretion to alter SIP requireme nts, including those that a llow for variances or outright exemptions for emissions during SSM events. The provision at OAC 3745-15-06(C) relates, at least in part, to the director’s disc retion granted in OAC 3745-15-06(A)(3).

Comment:

The Ohio EPA acknowledged that OAC 3745-15-06(A)(3)(c), 3745-15-06(C), 3745-17- 07(A)(3)(c), and 3745-17-07(B)(11)(f ), lead to, or are impacted by, case-by-case determinations by Agency staff. However, the Ohio EPA argue s that these rules underwent the appropriate process at the state level and again at the federa l level during the SIP approval process. The Ohio EPA argues that it is inaccurate for the EPA to suggest “that the Petitioner or any other citizen was precluded from commenting on or obtai ning a full understanding of the technicalResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

72 evaluations conducted by [the Ohio EPA] under the SIP-approved rule provisions.” The Ohio EPA also states that the EPA di d not identify any problems with the identified provisions during the EPA’s State Review Framework enforcemen t program audit in October of 2012. The Ohio EPA appears to argue that the EPA fails to ta ke into account Ohio EPA’s implementation of these provisions, incl uding the use of enforcement discretion.

Response:

The EPA is not suggesting that the public wa s deprived of public notice and comment opportunities with respect to provis ions at issue in this rulema king, and public notice procedures are not a basis for the Agency’s action here. Rath er, in this rulemaking, the EPA is issuing a SIP call with respect to certain, identified director’s discretion provisions applicable to emissions during SSM events because SIP provisions cannot contain director’s di scretion to alter SIP requirements, including those that allow for va riances or outright exemptions for emissions during SSM events. This interpretation has been clear with respect to emissions during SSM events and has been in the EPA’s SSM Policy since at least 1999. The EPA acknowledges that both states and the Agency have, in some instances, failed to adhe re to the requirements of the CAA with respect to this issue consistently in the past, and thus the need for this SIP call to correct existing deficiencies in SIPs. For furthe r discussion on this topic, readers may refer to section VIII.D.18, “Comments that the EPA’s initial approval of th ese deficient provisions, or subsequent indirect approval of them through action on other SIP submissions, establishes that these provisions meet CAA requirements.”

Comment:

The Ohio EPA commented that the EPA should reevaluate its position regarding continuous compliance with emission limitations for the Portland cement operations affected by OAC 3745- 14-11(0). The Ohio EPA argues that the regula tion at 40 CFR 60.8 precludes the use of the reference methods (listed in 40 CFR Part 60, A ppendix A) during periods of SSM. The Ohio EPA argues that 40 CFR 60.8 indicates that exces s emissions during periods of SSM are not considered violations of an a pplicable emission limitations.

The Ohio EPA argues that the startup exemp tion for the low-NOx burners identified in OAC 3745-14-11(D) is “moot since the burners are either on or off.” The Ohio EPA further argues that the continued operation of a lo w-NOx burner during shutdown and malfunction periods does not reduce NOx emissions. For a mi d-kiln firing system subject to OAC 3745-14- 11(D), the Ohio EPA believes the SSM exemption is reasonable because these firing systems can “utilize solvent derived fuels or tires to achieve the lower kiln combustion temperatures that, in turn, decrease nitrogen oxides emission forma tion.” In a malfunction scenario, all operating systems may need to be off line in order to address the malfunction.

The Ohio EPA also noted that it was the EPA th at suggested that Ohio EPA include the nowdisputed language in these rules.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

73 Response:

The EPA disagrees with the basic premise of the commenter that if a spec ific form of emissions control does not operate, or does not operate as efficiently, du ring certain modes of operation such as startup, this justifies a complete exemption from applic able SIP emission limitations. As explained in the final notice, the EPA does not interpret the CAA to allow exemptions in SIP emission limitations. In situations where one form of emissions control does not work, or does not work as efficiently, states may elect to develop and impose an alte rnative emission limitation during specific modes of source operation, so lo ng as those alternative limits meet applicable stringency requirements for the ty pe of SIP provision at issu e and are legally and practically enforceable. For example, to the extent that the commenter believes that low-NOx burners are not appropriate during startup and shutdown fo r a particular source category, the EPA encourages the development and imposition of a differ ent form of emissions controls during such modes of operation in lieu of the impermissible exemptions that curre ntly exist. In this action, the EPA is not determining what alte rnative emission limita tions may or may not be appropriate, but merely directing states to undert ake revision of specific SIP prov isions to address identified deficiencies. The EPA will work w ith states to develop appropriate substitute provisions and is providing guidance with respect to this process in this action.

In addition, the EPA believes that issues related to this topic are adequately addressed in the notice of final action and directs readers to section VII.A.3.a, “Comments that the EPA’s proposed action on the Petition is incorrect because some of the Agency’s own regulations contain exemptions for emissions during SSM events”; section VII.A.3.h, “Comments that exemptions or affirmative defens es are not only not prohibited, but are actually required by the CAA because they are necessary to make an emission limitation ‘reasonable’ or ‘achievable’ for sources that cannot comply during SSM events”; and section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for stat es to develop emission limitations that apply during startup and shutdown to re place existing exemptions.”
2. Comment of parties other th an the state on the Ohio SIP

Comment:

One commenter argued that OAC 3745-15-06(A)(3) provides that Ohio EPA’s director may authorize a source to operate during scheduled ma intenance only if the source submits a written report showing that “all feasible interim control measures will be taken to reduce emissions from the source during the shutdown period.” OAC 3745-15-06(A)(3)(f). Further, the commenter stated that the director is re quired to “take appropriate acti on upon a determination that the reporting requirements of [the] rule have not been satisfied” or that under OAC 3745-15-06(C), “the emissions [from the source] endanger or tend to endanger the health or safety of the public.” The commenter argued that these same requireme nts apply to the malfunction exemption from visible particulate emission limitations for st ack emissions and fugitive dust in OAC 3745-17- 07(A)(3)(c) and (B)(11)(f). The commenter belie ves that the requirement to implement “all feasible interim control measures,” in OAC 3745 -15-06(A)(3)(f), is a “r equirement relating to the operation or maintenance of a source to a ssure continuous emission reduction” and a “work practice or operational standard.” The commente r argued that therefore these provisions are allResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

74 emission limitations and therefor e there is a continuous emission limitation that applies under the listed Ohio SIP provisions. In other words, the commenter argued that OAC 3745-15-06(A)(3) and 15-06(C) are not impermissible director’s di scretion provisions that exempt sources from otherwise applicable co mpliance requirements.

Response:

As explained in the proposal notice and in response to Ohio EPA’s comment above, OAC 3745- 15-06(A)(3) provides a state officia l with unilateral discretion to determine that excess emissions during certain maintenance events do or do not constitute a violation, which is inconsistent with CAA requirements. Although OA C 3745-15-06(A)(3) has a few lim itations, as the commenter points out, the state official can regardless un ilaterally decide that a source may continue operation “if, in his judgment, the situation ju stifies continued operation of the sources.” The state official’s discretion is therefore not sufficie ntly bounded and extends to granting a complete exemption from applicable emission limitations.

The EPA also notes that many of the provisions the commenter cites are not sufficient to establish a continuous emission li mitation that overcomes the impe rmissible director’s discretion provision. The specific requirement s of a SIP emission limitation mu st be discernible on the face of the provision, must meet the applicable subs tantive and stringency requ irements of the CAA and must be legally and practically enforceable. For further discussion on this topic, readers may refer to VII.A.3.m, “Comme nts that a ‘general duty’ pr ovision—or comparable generic provisions that require sources ‘to exercise good engineering judgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’ —i noculate or make up for exemptions in specific emission limitations that apply to the source.”

Comment:

A commenter argued that the position that the EPA is taking in this action is inconsistent with the EPA’s own prior description of the Ohio re gulations at issue. The commenter cited to a Federal Register notice in which the EPA stated that with regard to the Ohio SIP provisions at issue here, the “EPA will treat the submission of any incomplete or erroneous information by a source as a violation of this regulation, and will not allow an exemption supported by such information. U.S. EPA’s action does not constitu te advance approval of any exemptions which may be claimed or issued under Ohio’s regula tions. Thus, U.S. EPA may take independent enforcement action to the extent allowed by section 113 and any ot her applicable provisions of the CAA, notwithstanding th e issuance of an exemption by the state.” 59 FR 27465–66.

Similarly, another commenter noted that wh en the EPA approved OAC 3745-15-06(A)(3) and (C) in October 1982, the EPA found that these were permissible enforcement discretion provisions. The commenters quote the EPA as stating at that time:

EPA believes this provision [OAC 3745-15-06( C)] is not inconsistent with EPA’s malfunction policy. EPA’s basic criterion in reviewing the malfunction rules is that the rules must not provide for an automatic exemption during a maintenance/malfunction episode. EPA does not interpret paragraph (C ) or any paragraph of rule 3745-15-06 asResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

75 providing a source with an automatic opportunity to violate any mass or visible emission limitation due to a maintenance/malfunction occurrence. ...Rule 3745-15-06 permits the Director to exercise enforcement discre tion on a case-by-case basis depending on the circumstances surrounding the malfunction. ...In all cases, the Dir ector must carefully scrutinize the source’s claim for an exemption. 47 FR 43377.

Response:

In this rulemaking, the EPA is issuing a SIP call with respect to certain, identified director’s discretion provisions applicable to emissions during SSM events because SIP provisions cannot contain director’s discretion to alter SIP requirements, including those that allow for variances or outright exemptions for emissions during SSM events. This interpretation has been clear with respect to emissions during SSM events and has been in the EPA’s SSM Policy since at least 1999. The EPA acknowledges that both states and the Agency have, in some instances, failed to adhere to the requirements of the C AA with respect to this issue c onsistently in the past, and thus the need for this SIP call to correct existing de ficiencies in SIPs. For further discussion on this topic, readers may refer to VIII.D.18, “Comment s that the EPA’s initial approval of these deficient provisions, or subs equent indirect appr oval of them through action on other SIP submission, establishes that these pr ovisions meet CAA requirements.”

Comment:

One commenter argued that the exclusion in OAC 3745-14-11(D) of periods of SSM from the control technology requirements in OAC 3745-14- 11 does not apply to an “emission limitation.” According to the commenter, the re quirement is either or both:

(1) a “design standard” that is an “emission limitation” not subject to the “continuous basis” clause; and/or (2) not an “emission li mitation,” so that requirement need not be applied “on a continuous basis.” Instead, as technology-based control requirements, the provisions in OAC 3745-14-11 are subject to the princi ple that “technology-based standards should account for the practical realities of tec hnology,” as recognized by U.S. EPA in this rulemaking.

Response:

The EPA disagrees with the commenter. The EPA is not excluding OAC 3745-14-11 from the SIP call because it may be thought of as a “desi gn standard,” or a “technology-based standard.” The EPA disagrees with the commenters’ conclusi on that the mere act of labeling certain SIP provisions in ways other than as “emission li mitations” can be a means to circumvent the requirement that emission limitations must re gulate sources continuously. To the extent that there is any ambiguity in the re quirements of section 110(a)(2), it is not reasonable to interpret the statute to allow the explicit requirement that emission limitati ons must be continuous to be negated in this fashion. The premise of the SI P call applies to provisions such as OAC 3745-14- 11, which function as emissions limitations and are undermined by SSM and director’s discretion provisions. For further discussion on this topic, readers may refer to section VII.A.3.f, “Comments that section 110(a)(2)(A) authorizes stat es to have SIP provisions with exemptionsResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

76 for emissions during SSM events because they ar e not ‘emission limitations’ and are not subject to the requirement to be ‘continuous.’”



### f. Wisconsin

1. Comment of parties other than the state on the Wisconsin SIP

Although Wisconsin was not named among the “affect ed states” in the proposed rulemaking, one commenter provided comment regarding the Wisc onsin SIP on the February 2013 proposal.

Comment:

One commenter stated that the Midwest Environm ental Defense Center (M EDC) sent a petition to the EPA on June 7, 2012, notifying the EPA of a faulty provision in Wisconsin’s SIP and requesting a SIP call or a FIP. (MEDC Petiti on to EPA to Find Inadequate and Correct Wisconsin’s State Implementation Plan Under Sec tion 110 of the Clean Air Act Due to Unlawful Startup, Shutdown, and Maintenance Provisions (J une 7, 2012)). The commenter stated that Wisconsin’s SIP is inconsistent with the CAA because it includes automatic exemptions to emissions limits, just like the 36 st ates included in this rulemaking.

Response:

The EPA is not addressing the MEDC Petition in this action. For further discussion on the topic of the scope of the EPA’s action, readers may re fer to section V.D.3, “Comments that the EPA should expand the rulemaking to include additional SIP provisions that the commenters consider deficient with respect to SSM issues.” 

### 2.6 Affected State Rules in EPA Region VI

a. Arkansas

We received no comments on the provisions of the Ar kansas SIP at issue in this action that were so specific as to be included in this document.



### b. Louisiana

1. Comment of the Louisiana Department of Environmental Quality (LDEQ) (0478)

Comment:

The LDEQ asserted that the EPA must find the Louisiana SIP “substantially inadequate” before initiating a SIP call. In particular, LDEQ stated that the EPA should be required to examine the extent to which the SIP deviates from the mi nimum requirements of the CAA and whether the deviation is “substantial.” LDEQ claimed that decades of implementation demonstrate the exemptions in question do not have an adverse imp act on the ability to achieve and maintain the NAAQS. Referencing the EPA’s use of conditional, interim, and partial SIP approvals, LDEQResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

77 asserted that CAA section 110(k)(5 ) does not authorize th e use of a full SIP ca ll to correct a “SIP that has already undergone review and co mplies with the CAA 99% of the time.”

Response:

The EPA interprets the CAA requirements for SIPs to preclude approval of provisions that provide for periods of exempti ons from otherwise app licable emission limitations. As stated in the February 2013 proposal, we are finding that the specific exemptions identified in the Louisiana SIP are substantially inadequate to meet the CAA requirements for SIPs for the reasons stated in the final not ice. The EPA believes this topic is adequately addressed in the notice of final action and directs readers to section VIII.D.4, “Comments that the EPA lacks authority to issue a SIP call becaus e it is required to ‘quantify’ th e magnitude of any alleged SIP deficiency in order to es tablish that it is substantial.” In addition, the fact that the EPA may have erred in prior SIP approvals does not support an ar gument that the Agency cannot correct such mistakes. The EPA believes this topic is adequately addressed in the notice of final action and directs readers to section VIII.D.18, “Comment s that the EPA’s initial approval of these deficient provisions, or subs equent indirect appr oval of them through action on other SIP submissions, establishes that these pr ovisions meet CAA requirements.”

Comment:

The LDEQ was among many commenters who assert ed that the EPA’s interpretation of an “emission standard” in CAA sec tion 302(k) is erroneous. LDEQ noted that while a source is subject to the standard 100 per cent of the time, the source need not reduce emissions 100 percent of the time. LDEQ pointed to some of the N SPS and MACT regulations, as examples of where the EPA has accounted for variability in the st andard itself. The commenter referenced the seasonal nature of the regulation of some crite ria pollutants and pointed to the New Source Review (NSR) program, which may establish “no further control” as appropriate under certain circumstances.

Response:

The EPA disagrees with the commenter on several grounds. As explained in detail in the February 2013 proposal and the final notice, the EPA is interpreting the definition of “emissions data” in accordance with both the statute and relevant case law. With respect to the commenter’s contention that an emission limitation can be “continuous” without requiring that sources reduce emissions to the same degree at all times, the EPA agrees w ith the commenter to the extent the commenter means that it may be appropriate to impose continuous emission limitations that allow for differen t levels or forms of emissions control during certain modes of source operation, so long as those are prope rly developed, meet the applicable level of stringency for the type of SIP provision at issu e, and are legally and practically enforceable. The EPA is providing guidance to states in the final notice concerning how they may elect to develop alternative emission limitations to apply during certain modes of source operation. Obviously, the EPA does not agree with the premise that a SIP emission limitation is “continuous” if it includes periods of operation during which the emission limitation impos es no restrictions on emissions, whether expressed numerically, as a specific control technology, or as a workResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

78 practice requirement. The EPA agrees that its own recent NSPS and NESHAP regulations do illustrate how emission limitations may be m ade continuous through imposition of different levels or forms of emissions c ontrol, so long as they meet applic able requirements with respect to stringency and are legally and pr actically enforceable. With respect to the commenter’s arguments concerning the NSR program, the EPA not es that it is addressing CAA requirements for emission limitations in SIP provisions in this action.

In addition, the EPA believes that these topics are adequately addressed in the notice of final action and directs readers to section VII.A.3.k, “Comments that an emission limitation can be ‘continuous’ even if it includes periods of exem ptions from the emi ssion limitation” and section VII.A.3.g, “Comments that the definition of ‘emission limita tion’ in section 302(k) does not require all forms of emission li mitations must apply continuously.”

Comment:

The LDEQ asserted that the revisions contempl ated by the SIP call will not result in actual reductions or improvement in ambient air quality. The commenter also asserted that adoption of the regulations in question as wr itten, but without an exempti on for startup or shutdown, would have been met with challenges that the re gulations were arbitr ary and capricious.

Response:

The EPA appreciates LDEQ’s concern that the regulations deemed to be substantially inadequate in this rulemaking will likely need revision to take into account that emissions during SSM may not be able to meet emission limitations established for other normal periods of operation. While the EPA believes that demonstrated technical or safety concerns cannot provide a proper basis for the exemptions cont ained in the current SIP regulations, such concerns may provide a basis for the creation of alternative emissions limitations, work practices, or other control measures during cer tain periods of operation. The EPA believes these topics are adequately addressed in the no tice of final action and directs readers to section VII.A.3.h, “Comments that exemptions or affirmative de fenses are not only prohibited, but are actually required by the CAA because th ey are necessary to make an emission limitation ‘reasonable’ or ‘achievable’ for sources that cannot comply during SSM events” and section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for states to develop emission limitations that apply duri ng startup and shutdown instead of existing exemptions.” Furthermore, the EPA believes that promoting implementation of proper maintenance, good housekeeping practices, and correcti ve action measures yields environmental benefits and air quality improvements.

Comment:

The LDEQ asserted that the Louisiana SIP pr ovides appropriate “limits” to emissions during startup and shutdown and that the EPA reviews only the regulations in question while ignoring the Louisiana SIP in its entirety. LDEQ main tained the Louisiana SIP does not provide carte blanche for the regulated industry to em it pollutants at any rate, at any time, even during startup or shutdown. The regulations are carefully tail ored regarding startup and shutdown conditions,Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

79 when experience, engineering, and science have demonstrated that it is impossible for the regulated industry to meet the limitations adopted specifically for “norma l” operating conditions.

Response:

The EPA does not claim that em issions during startup and shutdown will be identical to emissions during other periods of normal operation, and the EPA agrees that under some circumstances it may be appropria te to establish alternative emission limitations for such periods. However, the EPA does not believe that the CAA should be interpreted to allow exemptions from emission limitations, such as thos e in the current Louisiana SIP provisions that are the subject of this rulemaking. The EPA beli eves this topic is adequately addressed in the notice of final action and directs readers to section VIII.D.13, “Comments that EPA has to evaluate a SIP ‘as a whole’ to have the authority to issue a SIP call.”

Comment:

The LDEQ pointed to another provision in it s regulations and claime d that it provides a continuous emissions limit. LDEQ noted that LAC 33:III.929 provides a limit on emissions regarding ambient impacts, as follows:

 No person or group of persons shall allow partic ulate matter or gases to become airborne in amounts which cause the ambient air quality st andards to be exceeded. The limits stated include normal background levels of particulates and gases.

 Nothing in any other part or section of these regulations shall in any manner be construed as authorizing or legalizing emissions in such ma nner as prohibited by these regulations. For example, compliance with ambient air quality standards does not authorize emissions in excess of emission limitations.

Response:

The EPA notes that the referenced regulatory provisions provide some protection that emissions cannot be authorized in amounts that may exceed the NAAQS; however, as stated elsewhere in this rulemaking, the EPA does not believe that the CAA requirements for SIPs may be interpreted to allow exemptions, such as those in the Louisi ana SIP provisions that are the subject of this action. The EPA believes this topi c is adequately addressed in th e notice of final action and directs readers to section VII. A.3.m, “Comments that a ‘general duty’ provision—or comparable generic provisions that require sources to ‘exercise good engin eering judgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’ —inoculate or make up for exemptions in specific emission limitations t hat apply to the source.”

Comment:

The LDEQ was among many commenters who claime d that the EPA’s proposed SIP call was not meeting the principles of “cooperative federali sm.” LDEQ stated that the EPA is without authority to “second-guess” Loui siana on its choices of approp riate air regulations emissionResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

80 reductions necessary to produce th is verifiable reducti on in ambient air le vels of criteria pollutants.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

The LDEQ asserted that the exercise of a direct or’s discretion to grant exemptions from a SIPapproved regulation does not change the underlyi ng emission limitation and does not require the EPA to approve that action.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.C.3.b, “Comment s that director’s discretion pr ovisions are an exercise of ‘enforcement discretion.’”
2. Comment of parties other than the state on the Louisiana SIP

Comment:

One commenter supported the EPA’s proposed rule to correct inadequacies in Louisiana’s SIP that are inconsistent with the CAA and with cu rrent EPA rules and policies concerning treatment of a source’s excess emissions during periods of SSM. The commenter provided information specific to St. Bernard Parish and Orleans Pari sh and the environmental and health effects associated with excess emissions, especially those emissions during permitting variances, planned flaring and hurricanes, and unplanned SSM events. The commenter also submitted its views on measures needed to address excess emissions.

Response:

The EPA acknowledges the commenter’s support fo r the EPA’s proposed action as well as the information submitted, which confirms the EPA’ s concern about the real-world impacts associated with excess emissions and which supports the need to address such emissions in a manner consistent with the CAA requirements for SIPs.

Comment:

One commenter asserted that unlike the unavoi dable breakdown rule (UBR) at issue in US Magnesium, LLC v. EPA , 690 F.3d 1157 (10th Cir. 2012), the exemptions provided by the Louisiana SIP provisions noted in this rule making are narrowly tailored and are far more deliberate and nuanced than Utah’s overly broa d UBR. In support of its position that theResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

81 Louisiana SIP provisions are adequate, the comment er asserted that the EPA requires states to include consideration of rule effectiveness in demonstrating the adequacy of their SIPs.

Response:

The EPA believes that any exemptions to otherw ise applicable emission limitations, whether or not they are narrowly tailored as the comment er suggests, are not consistent with CAA requirements for SIPs. The EPA believes this topic is adequately addressed in the notice of final action and directs readers to section VIII.D.12, “C omments that the EPA is misinterpreting US Magnesium and that the decision provides no precedent for this action.” In addition, the commenter’s reference is to rule effectiven ess provisions that concern compliance with applicable emission limitations an d are quite different than a SIP provision which provides for an exemptions which, if met, would not be consider ed a violation. The EPA believes this topic is adequately addressed in the notice of final ac tion and directs readers to section VIII.D.19, “Comments that exemptions fo r excess emissions during exempt SSM events would not distort emissions inventories, SIP control measure development or modeling, because the EPA’s regulations and guidance concerning ‘rule effectiveness’ adequatel y account for these emissions, and therefore the proposed SIP calls are not needed or justified.”



### c. New Mexico

We received no comments on the provisions of the New Mexico SIP at issue in this action that were so specific as to be included in this document.



### d. Oklahoma

1. Comment of the Oklahoma Attorney General (0544)

Comment:

The Oklahoma AG was one of ma ny commenters who generally stated that CAA section 110 provides states with broad discre tion in developing their SIPs a nd “the Act gives [the EPA] no authority to question the wisdom of a state’s choices of emission lim itations if they are part of a plan that satisfies the standards of CAA sec tion 110(a)(2).” The Oklahom a AG stated that the proposed rulemaking action undermines the federa l-state partnership fostered by the CAA and violates the principles of “coope rative federalism,” and also th at the EPA is overstepping its bounds by eliminating an SSM exemption.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

82 Comment:

The Oklahoma AG was among commenters who st ated that the EPA exceeded its SIP call authority under CAA section 110(k)( 5) by failing to make the finding that the SIPs at issue in the proposed rulemaking are “substantially inadequa te.” To support its position, the Oklahoma AG stated that the “EPA has done no technical analysis of the SIPs at issue and has failed to link existing state SSM provisions to any air quality problems.”

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”



### e. Texas

Although Texas was not named among the “affected states” in the February 2013 proposal, the Texas Commission on Environmental Quality (TCEQ) and another commenter provided comment on the Texas SIP. The TCEQ and othe r commenters also provided comment on the SNPR, which did include an evaluation of affi rmative defense provisions in the Texas SIP.

1. Comment of the Texas Commission on Environmental Quality (TCEQ) (0487)

Comment:

The TCEQ provided initial comments in gene ral support of the policies expressed in the February 2013 proposal regarding the treatment of excess emissions in state rules by sources during periods of SSM.

Response:

The EPA acknowledges TCEQ’s support of th e policies expressed in the February 2013 proposed rulemaking regarding the treatment of excess emissions during SSM periods.

Comment:

The TCEQ was among many commenters who noted th at states have the primary responsibility for determining how to meet CAA air quality goals and that the EPA’s role is limited. Specifically, TCEQ noted that the EPA should resp ect the federal-state pa rtnership created by the CAA and should not substitute its ju dgment for that of a state.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

83 Comment:

The TCEQ wanted to ensure that the EPA does not intend to prohibit all di rector’s discretion in rules adopted to implement the SIP. The TCEQ did not agree that th is definition applies universally where director’s discretion is included in other regulatory contexts, i.e., those beyond the SSM issues that are the subject of this propo sed rule. According to th e commenter, each rule must be individually evaluated for compliance with the CAA.

Response:

The EPA agrees that each SIP provision should be evaluated on an individual bases. The Agency is not taking any position on provisions not sp ecifically addressed in th is rulemaking. However, the EPA emphasizes that “director’s discretion” provisions are only consistent with CAA requirements if they either provid e for EPA approval of the variances granted by the state or are sufficiently bounded so that th e EPA can anticipate in advance how the discretion will be exercised. Such provisions must be evaluated on a case by case basis.

Comment:

The TCEQ was one of the commenters who expre ssed support for use of interpretive letters “to clarify perceived ambiguity in the provisions” of SIP submittals and recognized that this practice is a “permissible and a sometimes necessary” approach under the fede ral CAA. Accordingly, TCEQ agrees with the EPA's decision to deny the petition on this i ssue concerning reliance on interpretive letters in actions on SIP submissi ons based on the EPA's proper documentation of interpretative letters in no tice-and-comment rulemakings.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VI.D.1, “Comments that suppo rted the EPA’s interpretation of the CAA to allow reliance on interpretive letters to clarify ambiguities in state SIP submissions.”

Comment:

The TCEQ provided comment on its permitting procedures for authorizing emissions from planned startup and shutdown activities as well as stating its positi on regarding emissions associated with malfunctions and upsets.

Response:

Although TCEQ’s planned permitting program set fo rth in 30 TAC § 101.222(h) is not part of the approved Texas SIP, the EPA supports TCEQ’s permitting efforts to authorize emissions associated with planned start up, shutdown, and maintenance activiti es, provided such permitting activities do not conf lict with applicable SIP requirements.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

84 2. Comment of the TCEQ (0936)

Comment:

The TCEQ was among commenters who argued that the supplemental proposal inappropriately deviates from the Fift h Circuit’s decision in Luminant v. EPA . TCEQ alleged that whether the EPA’s argument that the NRDC decision applies to affirmative defense provisions in SIPs is adequate is legally irrelevant to Texas because the Fifth Circuit has directly held that a court’s ability to assess penalties is not affected when an affirmative defense has been raised. TCEQ further claimed that the Luminant decision is binding on the EPA through application of the mandate rule. According to TCEQ, the EPA is judicially estopped from adopting the position presented in the supplemental proposal notice re garding Texas’s affirmative defense provision for malfunctions.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.7, “Comment s that the EPA’s proposal is inappropriate because it runs counter to previous court decisions, including the Fifth Circuit’s decision in Luminant v. EPA.”

Comment:

The TCEQ was among commenters w ho stated that the affirmativ e defense provisions cited in the supplemental proposal notice do not limit the au thority of federal courts in enforcement cases. TCEQ argues that the Texas SIP is cons istent with CAA secti on 113(e) and that the affirmative defense provision does not alter the jurisdiction of the fede ral courts. TCEQ noted that this is a position previously supported by TCEQ, the EPA, and the Fifth Circuit.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.34, “Comme nts that affirmative defense provisions do not alter or eliminate federal court jurisdiction and theref ore do not violate CAA sections 113 or 304.”

Comment:

The TCEQ was among commenters who stated that the DC Circuit’s opinion in NRDC v. EPA is a legally insufficient basis to support the EPA’s position outlined in the supplemental proposal notice. The NRDC case concerned an emission standard adopted under CAA § 112 and did not concern SIPs, and TCEQ therefore argued that the NRDC decision does not support action proposed by the EPA in th e supplemental notice.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.2, “Comments that the EPA is misapplying the decision of the D.C.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

85 Circuit in NRDC v. EPA to SIP provisions b ecause the court did not address the legality of affirmative defense provisions in SIPs.”

Comment:

The TCEQ was among commenters who stated that the DC Circuit’s NRDC opinion is inapplicable to SIPs because st ates are afforded wi de discretion in developing SIPs, as opposed to the more narrowly drawn statutory language of CAA § 112. TCEQ alleged that states’ statutory authority to develop SI P limits extends to ameliorati ve provisions, like affirmative defenses.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.5, “Comments that the NRDC decision, which concerned an emission limitation under section 112, does not apply in the context of s ection 110, because section 110 affords states flexibility in how to devel op emission limitations in SIP provisions.”

Comment:

The TCEQ was among commenters who argued that the EPA’s supplementa l proposal violates principles of cooperative federalism. TCEQ stat ed that the EPA’s supplemental proposal is in conflict with well-established judicial precedent th at states have broad discretion in developing SIP controls.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.13, “Comments that the EPA is violating principles of cooperative federalism through this action.”

Comment:

The TCEQ acknowledged that the EPA explicitly did not demonstrate in the supplemental proposal notice whether the use of affirmative defense provisions for malfunctions would be causally connected to a particular impact, su ch as an exceedance of the NAAQS. TCEQ was among commenters who argued that this positio n taken by the EPA ignores the EPA’s proper role in evaluating SIP provisions, which is to ensure that the SIP provides for attainment and maintenance of the NAAQS. TCEQ argued that th e EPA’s proposed approach may actually have an adverse effect on the atta inment and maintenance of the NAAQS because getting rid of affirmative defense provisions reduces the ince ntives for owners and operators to minimize emissions during malfunctions.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.12, “Comments that the EPA has not proven the existence of affirmativeResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

86 defense provisions in SIPs is resulting in sp ecific environmental impacts or interference with attainment and maintena nce of the NAAQS.”

Comment:

The TCEQ was among commenters who claimed that an affirmative defense for malfunctions in SIPs is not an exemption, but rather an enforcem ent discretion tool for the state environmental agency. According to TCEQ, the affirmative de fense provision at issue in the supplemental proposal allows for the prioritization of enfo rcement actions. TCEQ also alleged that the affirmative defense provision prov ides certainty to the regulated community because it outlines a structure to how TCEQ will gr ant enforcement discretion.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.38, “Comment s that affirmative defense prov isions function as structured state “enforcement discretion” and are an important tool for states to pr ioritize enforcement activities.”

Comment:

The TCEQ was among commenters who claimed th at the EPA failed to comply with the requirements of CAA § 307(d)(3) in the supplemen tal proposal notice because the EPA failed to adequately address the requirements for a statem ent of basis and purpose of the rule, a summary of the major legal interpretations and policy cons iderations, and a summary of the factual data on which the proposed rule was based.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.36, “Comme nts that the SNPR did not meet the procedural requirements of section 307(d) because the EPA failed to provide its legal inte rpretations or explain the data relied upon in this rulemaking.”

Comment:

The TCEQ was among commenters who asserted that the EPA failed to meet the requirements of section 110(k)(5) to establish th at affirmative defense SIP pr ovisions for malfunctions are “substantially inadequate.” Acco rding to TCEQ, the EPA failed to provide any technical basis for the requisite finding under C AA § 110(k)(5) that affirmative de fenses for malfunctions lead to violations of the NAAQS, inadequate mitigat ion of transport emissions, or any other issue with meeting a CAA requirement. TCEQ also cl aimed that the EPA failed to explain in the supplemental proposal notice how the EPA defi nes “substantially inadequate” or how the identified SIP provisions meet that standard. TCEQ argued that the EPA should finalize its rulemaking and then determine which states’ SIPs , if any, are inadequate according to the new SSM policy.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

87 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.20, “Comments that th e EPA has failed to show state SIPs are substantially inadequate, as is requ ired to promulgate a SIP call.”

Comment:

The TCEQ was among commenters who alleged that the EPA inappropriately determined that the action proposed in the supplem ental notice is “nationally a pplicable” under CAA § 307(b)(1). TCEQ alleged that the Texas SIP provisions at issue in the supplemental proposal cannot be and are not of “nationwide scope or effect” because the rules apply only in Texas. TCEQ similarly contended that D.C. Circuit was not the prope r venue for any subseque nt legal action with respect to the Texas SIP provisi ons. According to TCEQ, venue for Texas’s affirmative defense provisions is already es tablished in the Fifth Circuit because of the Luminant case.
Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.21, “Comme nts that this action is not national in scope, and therefore the D.C. Circuit is not the sole ve nue for review of this action.”
3. Comment of parties other th an the state on the Texas SIP

Comment:

One commenter asked that the EPA conduct a review of, and issue a notice of deficiencies and a SIP call to, Texas for: (1) Texas implementation of its SSM affirmative defense and resulting failure to take adequate enforcement action fo r illegal excess emissions, and (2) Texas illegal permitting of emissions from planned SSM activities. The commenter specifically asserted that:

 Texas circumvents New Source Review by auth orizing planned SSM act ivities through its MSS Permit by Rule. 30 Tex. Admin. Code§ 106.263; and

 In permitting planned SSM activities, Texas routinely fails to provide any public participation opportunity when determining wh ether to exempt such emissions from the BACT limits applicable to other routine em issions or when determining what limits constitute BACT for emissions for planned ma intenance, startup and shutdown activities.

Response:

Consistent with the position stated in the SN PR, the EPA has determined that a SIP provision providing an affirmative defense for excess emissions is substantially inadequate and inconsistent with CAA requirements for SIPs. How ever, this comment does not seem to be within the scope of this particular rulemaking. The EPA does note the commenter’s concerns with TCEQ’s implementation of its permitting pr ogram related to planned startup, shutdown, and maintenance activities.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

88 Comment:

One commenter remarked that the SIP call is only the first step in a process that will require multiple independent rulemakings followed by SI P submittals. The commenter asserted that absent strict EPA oversight, some industries a nd states will use this process to weaken and eviscerate SIP limits. The commenter then provid ed examples of specific permitting actions in Texas, wherein the commenter claimed the state permitting authority has issued permit amendments authorizing emissions during period s of planned startups and shutdowns that conflict with existing SIP requirements and did so without a meaningful analysis of control technologies and air quality impacts, a nd without adequate public notice.

Response:

While not within the scope of this particular rulemaking, the EPA notes the commenter’s concerns related to TCEQ’s implementati on of its permitting pr ogram. We recognize appropriate oversight and enforcement is an impo rtant component in the administration of air quality regulations by a state or local agency. For further disc ussion on this topic, readers may refer to section IV.D.27, “Comments that the EPA s hould closely monitor stat es’ SIP revisions in response to this SIP call.”

Comment:

A few commenters stated that the EPA’s proposed SIP call to remove the affirmative defense provisions in the Texas SIP would have a di sproportionate impact on Texas. The commenters asserted that this disproportional impact is th e result, in part, of the state’s large number of complex sources and regulatory programs th at impose unique and st ringent reporting and response requirements. The commenters noted the large number of refineries and petrochemical plants located in Texas and provi de a brief history of how excess emissions have been addressed under the Texas SIP. The commenters requested th at the EPA abandon its proposal as to Texas because it lacks a defensible legal basis that undermines the long-running and justified reliance by Texas stakeholders on the current SIP rules.

Response:

The EPA acknowledges that Texas is home to a significant concentra tion of the nation’s refineries and petrochemical plants with whom the EPA has worked closely for more than 40 years to meet federal CAA requirements. We ha ve also worked closely with Texas as it works to address excess emissions that result from malfunctions as well emissions from planned maintenance, startup and shutdown activities, so as to ensure the Texas SIP meets CAA requirements. The EPA commends Texas for its excess emissions reporting program and for making information related to excess emissions events available on TCEQ’s website. However, as explained in the notice of final action, the EPA now beli eves that SIPs which provide affirmative defenses to excess emissions (incl uding excess emissions caused by malfunctions) are inconsistent with CAA requireme nts for SIPs. Furthermore, the EPA believes that the removal of such provisions from the Texas SIP will not si gnificantly affect the data collection, reporting, and investigative requirements contained in the excess emission requirements of the Texas SIP.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

89 Under the current Texas SIP, information submitted by sources related to excess emissions is evaluated by TCEQ to determ ine if the excess emissions were excessive, the result of a malfunction, and whether or not an enforcement ac tion for penalties or injunctive relief is appropriate. The fact that Texas is home to a large number of refiner ies and petrochemical industry should necessitate that this type of analysis and decision-making will continue when the affirmative defense provisions are removed from the Texas SIP. The commenters do not assert otherwise. For further discussion on this topic, readers may refer to section IV.D.14, “Comments that the EPA failed to account adequately for the amount of time and resources that will be required to revise state SIPs.”

Comment:

One commenter contended that there is no support in the record for a finding of substantial inadequacy for the Texas SIP provisions related to an affirmative defense for excess emissions from unplanned startup and shutdow n activities. The commenter cite d to statements made by the EPA in the preamble of the May 13, 2010, Federal Register notice proposing to approve revisions to the Texas SIP related to excess emissions. The commenter pointed to certain language in that Federal Register notice which mentions unplanned maintenance but not unplanned startup and shutdown, a nd concludes that excluding st artup and shutdown in that notice somehow prevents the EPA from finalizin g its proposed SIP call fo r Texas’s affirmative defenses as they apply to startup and shutdown periods.

Response:

While the EPA previously argued th at narrowly defined affirmative defenses for excess emissions caused by malfunctions (including unplanned maintenance, startup, and shutdown activities which are functionally equivalent to malfunction s) could be approved into a SIP, the EPA now believes that any affirmative de fense for excess emissions woul d be inconsistent with CAA requirements for SIPs. Consistent with this position, and as stated in the SNPR, the EPA proposed a finding of substantial inadequacy as it relates to provisions in the Texas SIP that provide for an affirmative defense for excess em issions, including excess emissions resulting from upsets and unplanned maintenan ce, startup, or shutdown activ ities. For further discussion on this topic, readers may refer to section IV.D.37, “Comments that the EPA has recently approved affirmative defense provisions thr ough various SIP actions and therefore, these provisions are proper under the EPA ’s interpretation of the CAA.” 

### 2.7 Affected State Rules in EPA Region VII

a. Iowa

1. Comment of parties other th an the state on the Iowa SIP

Comment:

One commenter stated that the EPA’s denial of the petition on Iowa Admin. Code r.567-.24.1(4) is improper. Iowa Admin. Code r.567-.24.1(4) states that “[d]et ermination of any subsequentResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

90 enforcement action will be made following review of this report.” The commenter believes that this provision is ambiguous and thus could interfere with EPA and citizen enforcement. The commenter argued that “the EPA should require, at minimum, that Iowa should clarify in the plain language of the Iowa Admini strative Code that this provis ion does not limit EPA or citizen enforcement.” Comment 0622 at 26.

Response:

The EPA disagrees with the commenter that Iowa Admin Code r. 567-.24.1(4) is ambiguous. The commenter made the same argument in the orig inal petition to which this action responds. Petition at 38. As explained in the proposal, the provisions that describe the factors to be considered by state personnel onl y require that the state personne l consider such factors. The regulations do not state or impl y that if a source makes an appropr iate showing of meeting the factors, it is exempt from penalties or injunctive relief. The provisi on does not state or imply that any other entity, including the EPA or a member of the public, is precluded from taking an enforcement action if the state exer cises its discretion not to enfo rce violations of the emission limitations during malfunctions. The EPA believes t hat the provision is on its face clearly applicable only to Iowa state enforcement personnel and that th e provision could not reasonably be read by a court to foreclose enforcement by the EPA or through a citizen suit where Iowa state personnel elect to exercise enforcement di scretion. This is consistent with the CAA and the EPA’s SSM Policy and therefore does not render the SIP provision substan tially inadequate. The EPA solicited comments on this issue, in particular fr om 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). Iowa did not comment that the EPA’s interpretation was incorrect.



### b. Kansas

1. Comment of the Kansas Departme nt of Health and Environment (KDHE) (0129)

Comment:

The Kansas Department of Health and Envi ronment (“KDHE”) was among many commenters who generally stated that C AA § 110 provides states with broad discretion in developing their SIPs and that the EPA exceeded its authority in this proposed SIP call. The KDHE commented that the CAA provides states with “the res ponsibility and authority... to develop plans for implementation, maintenance, and enforcement by whatever means the States choose to attain those standards.” Comment 0129 at 3. Commenter believes that the EPA’s proposed action is “contrary to the federal-state pa rtnership intended in the CAA.” Id.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

91 Comment:

The KDHE stated that the EPA has provided no t echnical demonstration “to prove ‘substantial inadequacy’ of the Kansas SIP due to the provis ions of K.A.R. 28-19-11 to justify this SIP call under CAA Section 110(k)(5).” Comment 0129 at 1. According to the commenter, the regulation subject to this action. K.A.R. 28-19-11, “has been in place for almost 40 years” and “Kansas has implemented, maintained, and enforced the NAAQS in accordance with the [CAA] and each EPA-approved [SIP] and SIP revision.” Id

. Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call” and section VIII.D.18, “Comments that the EPA’s initial approval of these de ficient provisions, or subseque nt indirect approval of them through action on other SIP submissions, establ ishes that these provisions meet CAA requirements.”



### c. Missouri

1. Comment of the Missouri Department of Natural Resources (0077)

Comment:

The Missouri Department of Natural Resources commented to confirm the EPA’s interpretation of Missouri’s regulations at 10 CSR 10-6.050(3)(C) (referred to in the proposal as Mo. Code Regs. Ann. tit 10, § 10-6.050(3)(C)) and stated that “[t]his provision does not foreclose enforcement by the EPA or through a citizen su it where the Department elects to exercise enforcement discretion.” Comment 0077 at 1. Th e commenter stated that this position “is explained in Missouri’s air pollution enforcement author ity under section 643.080 or 643.151, RSMo, and in technical guidance available on [the Missouri Department of Natural Resources] website (http://www .dnr.mo.gov/pubs/pub2059.pdf).” Id

. Response:

The EPA acknowledges the confirma tion from the Missouri Departmen t of Natural Resources.
2. Comment of parties other than the state on the Missouri SIP

Comment:

One commenter argued that the EPA should “require Missouri to revi se both of the provisions in the Missouri SIP identified in the Petition re ferenced in the Propos ed Rule” because the commenter “is concerned that the Missouri SIP contains provisions that compromise the enforceability of unlawful excess emissions.” Comment 0579 at 9.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

92 Response:

The EPA disagrees that Mo. Code Regs. Ann. tit 10, § 10-6.050(3)(C) should be revised. As explained in the proposal, the EPA believes that th is regulation is permis sible because it defines parameters for the exercise of enforcement di scretion by state personne l for violations of emissions limitations. The provision only indi cates that state enforcement personnel “shall consider” certain factors in de termining whether to take an en forcement action under the state statutory enforcement provisions . The provision does not state or imply that any other entity, including the EPA or a member of the public, is precluded from taking an enforcement action if the state exercises its discreti on not to pursue enforcement. The Missouri Department of Natural Resources commented to confirm the EPA’s inte rpretation of Mo. Code Regs. Ann. tit 10, § 10- 6.050(3)(C). Comment 0077. Accordingly, the EPA believe s that Mo. Code Regs. Ann. tit 10, § 10-6.050(3)(C) is consistent with the CAA and the EPA’s SSM Policy.



### d. Nebraska

1. Comment of the Nebraska Department of Environmental Quality (0123)

Comment:

The Nebraska Department of Environmental Qu ality (NDEQ) commented “in support of EPA’s proposed decision to deny the petition with respec t to the Nebraska SIP a nd its local program in Lincoln-Lancaster County.” Comment 0123 at 1. The NDEQ noted that Nebraska’s SSM provision was “incorrectly cited in [the] Sierra Club petition and EPA’s response,” and that the provision is in fact “found in Neb. Admi n. Code Title 129, Chapter 35, Section 001. Id . The NDEQ confirmed the EPA’s interpretation that Nebraska’s SSM provision and the parallel provisions related to the Lincoln-Lancaster C ounty Air Pollution Control Program (Art. 2 §35), “do[] not expressly or implicitly place any lim its on the state personnel’ s ability to exercise discretion, and the enforcement discretion provided by the regulation is not an exemption to the SIP emission limitations.” Id

. In addition, the NDEQ agreed with the EPA’s determination that Nebraska Admin. Code Title 129 § 18-004.02 “should not be subject to the Sier ra Club’s petition because it is not a part of the Nebraska SIP.” Id

. Response:

The EPA acknowledges the confirmati on from the NDEQ and notes th e clerical correction to the regulatory citation to Neb. Admin. Code Title 129, Chapter 35, Section 001.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

93 

### 2.8 Affected State Rules in EPA Region VIII

a. Colorado

1. Comment of the Colorado Depa rtment of Public Health and Environment (0525)

Comment:

The Colorado Department of Public Health a nd Environment (CDPHE) a lleged that the EPA had changed its position on startup and shutdown even ts. The CDPHE claimed that this rulemaking is “fundamentally at odds with [the EPA’s] prior, long-standing interpretation.”

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.n, “Comments that EPA’ s action on the petition is a ‘change of policy.’”

Comment:

The CDPHE was among several commenters that expressed concern that the EPA does not address the difficulty of establishing alternativ e emission limitations. The CDPHE claimed that the EPA has failed to consider the difficulty posed to states in establishing alternative emission limitations that could apply duri ng startup and shutdown periods, particularly because startup and shutdown events are not all the same. The CDPHE further noted that it cannot establish meaningful emission limitations without reliable emissions data, and many sources have no data available for startup and shutdow n periods. The CDPHE may rely on emissions factors in such a situation, but it points out that the EPA has not set emissi ons factors for startup and shutdown periods. The CDPHE also believes that these alternative emission limitations “come with no benefit in the form of emissions reduction.”

Response:

The EPA acknowledges that if a state elects to develop and impose alternative emission limitations on sources during st artup and shutdown, doing so may re quire the state to acquire and evaluate appropriate data to determine what is an appropriate emission limitation during such periods. The EPA notes, however, that the commenter appears to assume that any such alternative emission limitation would have to be expressed numerically, rather than through imposition of a specific control technology or wo rk practice requirement applicable during such periods of operation. There may be source categories for which an appropriate emission limitation during startup or shutdo wn should be expressed numerically, but the EPA anticipates that there are also situations in which this may not be necessary. For example, if a specific SIP provision needs to represent a RACM or RACT leve l of control for a specific source category, the EPA believes that states will be able to ga ther information about w hat forms of emissions controls are effective and appr opriate by investigating what emission limitations have beenResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

94 imposed by other states for similar sources or by the EPA through its own NSPS or NESHAP regulations, which may provide useful informatio n concerning potential emissions controls. In any event, the relevant information needed in or der to develop an appropriate SIP provision is a basic requirement of the CAA for all SIP provisions, and this need is not a basis for retaining existing SIP provisions, such as the affirmative defe nse provisions at issue in this state, that do not meet CAA requirements.

In addition, the EPA believes, these topics are al so addressed in the notice of final action and directs readers to section VII. B.3.a, “Comments that as a techni cal matter sources cannot meet emission limitations (or cannot be accurately monitored) during startup and shutdown”; section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for states to develop emission limitations that apply duri ng startup and shutdown to replace existing exemptions”; and section VIII.D.26, “Comments that a SIP call directing states to eliminate exemptions for excess emissions du ring SSM events is a ‘paper exer cise’ or ‘exalts form over substance.’”



### b. Montana

1. Comment of the Montana Depart ment of Environmental Quality (0597)

Comment:

The Montana Department of Environmental Quality (Montana DEQ) was among commenters who expressed concern that the EP A has not involved stakeholders in the process. The Montana DEQ alleged that the EPA should have consulted w ith the state agency about the claims made in Sierra Club’s petition instead of independently de termining that Montana’s SIP was inadequate.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.5, “Comments that the E PA did not provide a suff iciently long comment period on the proposal in general or as contemplated in Executive Order 13563.”
2. Comment of parties other than the state on the Montana SIP

Comment:

One commenter generally supported the EPA’s propos ed rule, but argued th at the proposal does not rectify many important flaws in the Montana SIP. The commenter objected to a malfunction provision in Montana’s SIP, Mont. Admin. Rule 17.8.110. According to the commenter, this state provision allows the Montana DEQ discretion to avoid taking an enforcement action when a malfunction occurs in certain circumstances. The co mmenter asserted that this SIP provision is particularly problematic because there are insuffi cient certified ambient ai r monitors that could be relied on by DEQ in an enforcement action.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

95 Response:

We acknowledge the commenter’s general supp ort for our finding that Montana’s startup and shutdown exemption for alum inum smelters, Mont. Admin. R. 17.8.334, is substantially inadequate. Comments about the adequacy of a stat e’s ambient air monitoring network and the designation process for nonattainme nt areas are outside the scope of our proposed action. The EPA did not propose to find the specific provis ion cited by the commenter substantially inadequate, and the Agency did not take comment on that provision. For further discussion on this topic, readers may refer to section V. D.3, “Comments that the EPA should expand the rulemaking to include additional SIP provisions that the commenters consider deficient with respect to SSM issues.”

Comment:

One commenter did not support the EPA's proposed action regarding Montana Admin. R 17.8.334. The commenter alleged that the EPA’s emission measurement methods ( i.e., Method 14 monitoring manifold) for aluminum production potlines are not appropriate for periods of startup and shutdown, as was acknow ledged by the EPA during the development of the primary aluminum MACT. According to the commenter, Montana Admin. R 17.8.334 is currently correct in stating that operations du ring startup and shutdow n are not representative conditions for determining compliance with existing emission limits.

Response:

The EPA disagrees with this comment. With respec t to the concern identi fied by the commenter regarding the fluoride emission standard, the EP A’s finding of substantial inadequacy does not immediately compel the source to comply w ith the standard during periods of startup and shutdown. As explained in our proposal, Montana may be able to satisfy the requirement for a continuous emission limitation and a ddress the commenter’s concern by providing an alternative emission limitation that applies dur ing startup and shutdown, so l ong as the alternative emission limitation complies with all other CAA requirements.

With respect to test methods, the EPA believes this topic is adequately addr essed in the notice of final action and directs readers to section VII.B.3.a, “Comments that as a technical matter sources cannot meet emission limitations (or cannot be accurately monitored) during startup and shutdown.” The comment did not discuss test methods or other means for determining compliance with alternative emission limitations during st artup and shutdown, and therefore does not give us any reason to think that alternat ive emission limitations are not feasible for this particular scenario.

In any event, as explained in detail in our proposal notice and in our final notice, and not disputed by the comment, an automatic exemption during periods of startup and shutdown from a generally applicable emission limitation is inconsistent with CAA requirements.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

96 

### c. North Dakota

1. Comment of the North Dakota Department of Health (0125)

Comment:

The North Dakota Department of Health noted that sections NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2a(1) have already been dele ted from the North Dakota Air Pollution Control Rules. A SIP revision was submitte d to the Administrator on January 23, 2013, requesting the deletion of these rules from the SIP. A draft of this SIP revision was submitted to EPA Region 8 in February 2012. Therefore, the No rth Dakota Department of Health alleged that the EPA’s SIP call for these rules is unnecessary.

Response:

With respect to sections NDAC 33-15-03- 04.4 and NDAC 33-15-05-01.2a(1), which the EPA proposed to find substantially inad equate, we agree that the state deleted these provisions from the North Dakota Air Pollution Control Rules and submitted the revised SIP to the EPA for approval. We approved the removal of these provisions on October 22, 2014. 79 FR 63045. As a result, the petition is now moot with respect to these provisions and we are not finalizing our proposed grant of the petiti on with respect to them.

Comment:

The North Dakota Department of Health commen ted that the EPA’s interpretation of N.D. Admin. Code 33-15-03-04.3 is unreasonable and wit hout merit. The SIP provision provides that the requirements of N.D. Admin. Code 33-15-03-01, 33-15-03-02, 33-15-03-03 and 33-15-03- 03.1 do not apply when an opacity limit has b een established by a different mechanism, including a BACT Determination, 111(d) Plan, MACT Standard, or permit. The North Dakota Department of Health argued that the EPA’s statement that the state agency would establish an alternative opacity limit without going through the permitting process and without the proper justification is unfounded.

Response:

The EPA disagrees with this comment. First, the re gulation itself does not specify any procedure, permitting or otherwise, to esta blish a different opacity limit. Re gardless, as explained in our proposal notice, provisions t hat give the director unbounded di scretion to change stationary source requirements outside of the SIP revision process violate basic SIP revision procedural and substantive requirements in s ections 110(a)(1), (a)(2 ), (i), and (l) of the Act. Furthermore, provisions that give the director unbounded di scretion to change SI P emission limitations outside of the SIP revision process create enforce ability issues for such limitations and therefore violate sections 110(a)(2)(A), 113, and 304 of the Act. Finally, ther e is the possibility that an unbounded director discretion provision will be used to create exemptions for an otherwise continuous emission limitation, th ereby violating the continuity requirement in 302(k). For further discussion of this topi c, readers may refer to secti on VII.C.3.e, “Comments opposed toResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

97 the EPA’s approach on the premise that there is no ‘director’s discreti on’ concern if the SIP provision creates a permit program through which state officials grant sources variances or exemptions from otherwise applicable SIP provisions.”

Comment:

The North Dakota Department of Health stated that the EPA’s asser tion that NDAC 33-15-03- 04.3 could lead to a source having no opacity lim it is without merit. A ccording to the North Dakota Department of Health, the SIP provision rule clearly states that the other sections of Chapter 33-15-03 do not apply when an applicable standard “is established” for a specific source. The North Dakota Department of Health charged that the plain reading of the rule indicates that an opacity limit must be in pla ce before the exemption applies. The North Dakota Department of Health also noted that this rule has nothing to do with exempting a source during SSM.

Response:

The EPA disagrees with this comment. The EPA di d not say in the February 2013 proposal that the provision at issue may lead to a source hav ing no applicable opacity limit. Instead, we stated that the provision was an in stance of unbounded director discre tion. As we explained in our proposal and summarized in the previous response, such provisions violate several requirements of the Act, not only with respect to enforceab ility but also with resp ect to the SIP revision process. The comment does not dispute this. With respect to relevance to SSM, due to the vague and general nature of the language in the provision, it could be used to establish an alternative opacity limit that has an illegal exemption during periods of st artup, shutdown, and malfunction.

Comment:

The North Dakota Department of Health commented that the SIP call lacks a scientific basis. The North Dakota Department of Health noted that op acity standards are esta blished as a means of determining whether PM air pollu tion control equipment is work ing properly; opacity standards are not an indicator of compliance with a NAAQ S. The North Dakota Department of Health stated that it cannot correl ate opacity and mass emission ra tes unless it know s the specific characteristics of the particles causing visi ble emissions. The North Dakota Department of Health alleged, for example, that it has found th at visible emissions from burning sunflower seed hulls is much larger than the same concentra tion of fly ash from burning coal. For this reason, the North Dakota Department of Health argued th at a system of separate visible limits, as provided in the challenged SI P provision, are necessary.

Response:

The EPA disagrees with this comment. With re spect to opacity limits, PM, and the NAAQS, the EPA believes this topic is adequat ely addressed in the notice of final action and directs readers to section VII.A.3.r, “Comments that exemptions in opacity standards should be permissible because opacity is not a NAAQS po llutant.” With respect to the commenter’s point about visible emissions varying for differing type s of sources, even if that is co rrect, all that can be inferredResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

98 from it is that the state should establish sour ce category-specific opacity limits in the SIP. Assuming all other requirements of the Act, such as section 110(l), are satisfied, the state could submit a SIP revision with different opacity limits for different source categories.



### d. South Dakota

1. Comment of the South Dakota Department of Environment and Natural Resources (South Dakota DENR) (0441)

Comment:

The South Dakota Department of Environmen t and Natural Resources (South Dakota DENR) was among commenters who generally stated that NSPS and MACT standards are inconsistent with the current proposed EPA action. Specifical ly, South Dakota DENR argued that the EPA’s February 2013 proposal is arbitrary and capriciou s because the EPA’s own regulations establish SSM exemptions. The South Dakota DENR cited several specific provis ions from NSPS and MACT standards that it alleged allow fo r such exemptions, including 40 CFR 60.11(c), 40 CFR 60.1205, and 40 CFR 60.48Da. The South Dakota DENR, noting that the EPA asserted in the February 2013 proposal that the Agency has not had time to revise these rules, argued that the EPA has had over 30 year s to revise the rules.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.b, “Comments that the EPA’s proposed action on the Petition is incorrect because the Agency has previously allo wed the inclusion of exemptions for emissions during SSM events through approval of NSPS or NESHAP requirements into SIPs.”

Comment:

South Dakota DENR stated that requiring emission limitations to apply during periods of SSM is unenforceable because there is no compliance me thodology available to determine whether the limitations are met during those periods. South Dakota DENR alleged that the February 2013 proposal failed to account for the lack of an established compliance method for determining whether emissions limitations are met during pe riods of SSM. South Dakota DENR noted that “[f]or all emission limits, how compliance is demonstrated ( i.e. , continuous emission monitors, stack testing, recordkeeping, work practice standards) is a funda mental part of the limit.”

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VII.A.3.s, “Comments that exe mptions from SIP opacity limitations for excess emissions during SSM events should be allowed because such emi ssions are difficult to monitor or to control” and section VII.B.3.a, “Comments t hat as a technical matter sources cannot meet emission limitations (or cannot be accurately monitored) during startup and shutdown.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

99 Comment:

The South Dakota DENR was among many commen ters who generally stated that CAA § 110 provides states with broad discretion in developing their SIPs a nd that the EPA exceeded its authority in this proposed SIP call. The S outh Dakota DENR was also among commenters who stated that the states have primary responsibil ity for determining how to meet CAA air quality goals, and the EPA’s limited role is spelled out in the statute and in decisions by the U.S. Supreme Court and the U.S. Courts of App eals. According to the South Dakota SENR, section 110(a)(2)(A) of the CAA requires th at “Each implementation plan submitted by a State...include enforceable emission limitati ons and other control measures...as may be necessary or appropriate to meet the applicable requirements of this chapter;” “[t]he term ‘necessary or appropriate’ gives the States the fl exibility to design a program that meets both the requirements of the CAA and the needs of the States ” (emphasis in the original).

The South Dakota DENR noted that the EPA is authorized to issue a SIP call only in situations in which the SIP is “substantially inadequate to attain or maintain the relevant national ambient air quality standards... or to otherwise comply with any re quirement of the [CAA].” CAA section 110(k)(5). The South Dakota DENR alleged th at this standard is not met here because the SIP provision at issue has not resulted in any inability to attain or maintain the NAAQS.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism’”; section VII.A.3.f, “Comments that section 110(a)(2)(A) authorizes states to have SIP provisions with exemptions for emissions during SSM events because they are not ‘emission limitations’ and are not subject to the requireme nt to be ‘continuous’”; and section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”

Comment:

The South Dakota DENR was among commenters w ho generally stated that opacity should be excluded from the proposal. The South Dakota DE NR noted that the South Dakota SIP provision at issue in the February 2013 pr oposal is explicitly limited to th e opacity limit established in ARSD 74:36:12:01.

The South Dakota DENR also noted that, though th e length of time of SSM periods may vary by event, the exemption in ARSD 74:36:12:02(3) is re stricted to brief or sh ort durations and a brief exemption from an opacity limit will not preven t maintenance or attainment of the NAAQS. The South Dakota DENR also stated that the challeng ed SIP provision is also limited to malfunction events, which are outside of an operator’s control.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

100 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.r, “Comments that exemptions in opacity standards should be permissible because opacity is not a NAAQS pollutant.” Additional ly, the EPA notes that the fact that an exemption from an emission limitation mi ght apply during a “short” or “brief” period or only in the event of a malfunction does not change the fa ct that it violates the requirement in section 302(k) that emission limitations be continuous.

Comment:

The South Dakota DENR stated th at altering the state’ s current approach to opacity standards will place sources into noncompliance because some existing operations cannot operate their control equipment during startup or shutdown for safety reasons or the unit or control equipment do not operate as efficiently during these peri ods. According to the South Dakota DENR, the EPA’s SIP call will impose costs on companies without helping Sout h Dakota attain the NAAQS.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VII.A.3.s, “Comments that exe mptions from SIP opacity limitations for excess emissions during SSM events should be allowed because such emi ssions are difficult to monitor or to control” and section V.D.7, “Comments t hat the EPA was obligated to address and justify the potential costs of the action and failed to do so correctly.”


### e. Wyoming

1. Comment of the Wyoming Depart ment of Environmental Quality (Wyoming DEQ) (0565)

Comment:

The Wyoming Department of Environmental Quality (Wyoming DEQ) was among commenters who generally disagreed with th e EPA’s definition of continu ous emission limitation because it fails to take into consideration th e averaging times in regulations.

Response:

The EPA disagrees that its interpretation of the terms “emission limita tion” and “continuous” is incorrect. The implication of the comment is that the EPA interprets the C AA to require that all SIP emission limitations must be expressed numerically and that th ey must be set at the same numerical level at all times. As explained in the final notice, th is is not the EPA’s interpretation of the CAA with respect to SIP provisions. To the contrary, an emission limitation may be made “continuous” by imposing a numerical limit with an appropriate averaging time, so long as the resulting emission limitation meets the relevant stringency requirement fo r that type of SIP provision and is legally and prac tically enforceable. Inappropriat ely high numerical limits andResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

101 inappropriately long averaging periods would not be consistent with CAA requirements, e.g., a numerical limit that results in no emission reductions or an averaging period that bears no relationship to the relevant NAAQS.

In addition, the EPA notes that this topic is also addressed in the notice of final action and directs readers to section VII.A.3.g, “Comments that the definition of ‘emission limitation’ in section 302(k) does not require that all forms of emission limitations mu st apply continuously.”

Comment:

The Wyoming DEQ was among many commenters who generally stated that CAA § 110 provides states with broad discretion in develo ping their SIPs and that the EPA exceeded its authority in this proposed SIP call. Specificall y, Wyoming DEQ stated that because the EPA has approved Wyoming's SIP, the state “has primacy to determine how best to meet air quality standards within the state.”

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

The Wyoming DEQ stated that by eliminating Wy oming and other states’ ability to exercise enforcement discretion and judgment for SSM and emergency events, the EPA's SIP call effectively eliminates states’ ability to fully determine how best to meet air quality standards with the state.

Response:

We disagree that our SIP call has the effect of eliminating states’ ability to exercise enforcement discretion. The EPA believes this topic is adequat ely addressed in the notice of final action and directs readers to section VII.D.2, “What is Being Finalized in This Action.”

Comment:

The Wyoming DEQ was among commenters who suppor ted the use of interpretive letters.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VI.D.1, “Comments that suppo rted the EPA’s interpretation of the CAA to allow reliance on interpretive letters to clarify ambiguities in state SIP submissions.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

102 Comment:

The Wyoming DEQ stated that a “special-interes t deadline suit” should not govern the EPA’s action. Rather, the Wyoming DEQ believes that the EPA should require groups to first raise their concerns with the state. Instead, the Wyoming DEQ alleged that the EPA's actions “encourage groups to do an end-run around the states.” The Wyoming DEQ requested that the EPA not finalize the SIP call and instead require the petiti oners to exhaust state remedies and options.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.1, “Comments that the EPA should not have responded to the petition for rulemaking or that the EPA was wrong to do so.”

Regarding the comment’s suggested requireme nt for nongovernmental organizations and other third parties to raise issues with SIPs during th e state rulemaking process, the comment does not identify any authority in the CAA for the EPA to impose such a requirement. We note that where Congress did want a requirement in the CAA that third parties exhaust thei r remedies by raising their objections with the state before raising them with the EPA, Congress said so. See CAA section 505(b)(2) (requiring petitioners to the EP A to object to state ti tle V permits to have raised their objections with re asonable specificity during the st ate public commenting period).

Regarding the suggestion that the EPA “direct th e petitioners to exhaust state remedies and options before seeking federal relief,” the EPA has no authority to direct the petitioners with respect to their involvement in state processes. Section 505(e) of the Administrative Procedure Act specifically grants the right to pe tition a federal agency for a rulemaking.

Comment:

The Wyoming DEQ commented that if the EPA does finalize its proposed SIP call, it should provide states at least 3 year s to revise their state plans. The Wyoming DEQ cited the EPA regulations that allow 3 years for states to revise their plans in response to changes in the EPA's minimum standards for plan approv als as support for its proposition. See 40 CFR 51.166(a)(6).

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.24, “Comments that th e EPA should provide more than 18 months for the SIP call because state law adm inistrative process can take l onger than that.” We disagree with the commenter’s suggestion that the 3 year s provided in 40 CFR 51. 166(a)(6) for revisions to PSD programs should apply. The 3 years there was based on an analogy to the 3 years provided in section 110(a)(1) after promulgatio n of a new or revised NAAQS and in the absence of a specific statutory provision giving dead lines for revisions to PSD programs. See 67 FR 80186 at 80240–41. In contrast, section 110(k)(5) sp ecifically provides that the EPA cannot establish a deadline to respond to a SIP call that is longer than 18 months.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

103 Comment:

The Wyoming DEQ was among many commenters who stated that the EPA’s proposed SIP call and policy will require states, sources, and the EPA to spend significant resources. Specifically, Wyoming DEQ alleged that the “EPA is unreasonab le in calling for the state to undertake such an expensive and time-consuming process to ad dress a single sentence that has been in Wyoming's plan for almost 40 years.”

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section V.D.7, “Comments that th e EPA was obligated to address and justify the potential costs of the action and failed to do so correctly” and section VIII.D.18, “Comments that the EPA’s initial approval of these deficient provisions, or s ubsequent indirect approval of them through action on other SIP submissions, es tablishes that these provisions meet CAA requirements.”

Comment:

The Wyoming DEQ argued that the EPA’s SIP call is inappropriate because there are no scientific, factual, or legal ba ses in the record to support a SI P call. According to the Wyoming DEQ, the EPA stated in the February 2013 propos al notice that Wyoming’s provision “does not appear to comply with the C AA’s requirements for source categor y-specific rules for SU/SD as interpreted in the EPA’s SSM policy.” However, Wyoming DEQ believes that the EPA failed to state which “source category-specif ic rule” is at issue and leav es it to the Division and other commenters to guess.

Response:

The EPA believes that this comment is moot because Wyoming submitted a SIP revision that addresses the deficiency in this provis ion, which we approved on October 21, 2014. 79 FR 62859. We are therefore no t finalizing our proposed grant of th e petition with respect to this provision.

Comment:

The Wyoming DEQ argued that the EPA does not have authority for th is SIP call under CAA § 110(k)(5). According to Wyom ing DEQ, Congress limited the EPA's use of § 110(k)(5) to requirements that were in force when states submitted their implementation plans: “[a]ny finding under [CAA § 110(k)(5)] shall...subject the state to the requirement s of this Act to which the State was subject when it developed and submitte d the plan for which such finding was made.” The Wyoming DEQ believes that the plain languag e of Section 110(k)(5) does not authorize the EPA to use this as “a means for EPA to implement new or modified policies—more—than 30– 40 years after states submitted their original plans.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

104 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.6, “Comments that the EPA cannot issue a SIP call for an existing SIP provision unless the provision was deficient at the time the state originally developed and submitted the provision for EPA approval.”

Comment:

Wyoming DEQ disagreed with the assertion by the EPA in the Febr uary 2013 proposal that this rulemaking is “nationally applicable.” Wyomi ng DEQ argued that a SIP call of a Wyoming SIP provision is solely a local matter. Wyoming DEQ believes that the simple fact that the EPA undertook multiple discrete state-specific actions in one Federal Register notice does not transform those actions into a “nationally applicable” action.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.6, “Comments that this ac tion is not ‘nationally applicable’ for purposes of judicial review.” 

### 2.9 Affected State Rules in EPA Region IX

a. Arizona

1. Comment of the Arizona Depart ment of Environmental Quality (ADEQ) (0489)

Comment:

The Arizona Department of Environmental Quality (ADEQ) argued that it is unreasonable for the EPA to assert that Arizona’s existing SSM rule s are not adequate to pr otect human health and the environment without citing specific evidence showing the substantial inadequacy of the SIP provisions at issue in this rulemaking.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”

Comment:

The ADEQ asserted that, if the EPA finalizes its SIP call as it was proposed, ADEQ would need to develop alternative emission limits for non- steady-state conditions for all 500 facilities permitted by ADEQ because those facilities’ current emission limits are based on steady-state conditions. ADEQ argued that this is unreasonable.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

105 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for states to develop emission lim itations that apply duri ng startup and shutdown instead of existing exemptions.”

2. Comment of the State of Ariz ona’s Pima County Department of Environmental Quality (0574)

Comment:

The State of Arizona’s Pima County Department of Environmental Quality agreed with the EPA’s evaluation that Pima County SIP Rule 706 (D ) does not preclude the EPA or citizens from enforcing that SIP provision.

Response:

The EPA acknowledges the supportive comment fr om Arizona’s Pima County Department of Environmental Quality.
3. Comment of the Arizona Depart ment of Environmental Quality (ADEQ) (0934)

Comment:

The Arizona Department of Environmental Qua lity (ADEQ) was among commenters that stated the EPA failed to cite any evidence that affirm ative defense SIP provisions for malfunctions cause actual harm to the public health or e nvironment. ADEQ allege d that without such evidence, it is unreasonable for the EPA to assert that existing SI P provisions are not adequate to protect human health an d the environment.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.12, “Comments that the EPA has not proven that the existence of affirmative defense provisions in SIPs is re sulting in specific environmental impacts or interference with attainment and maintenance of the NAAQS.”

Comment:

ADEQ was among commenters that stated that SIP provisions providing affi rmative defenses for malfunctions do not interfere with CAA enforcement because they do not prevent plaintiffs from pursuing injunctive relief and do not preclude citizens from filing su it against facilities for excess emissions.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

106 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.16, “Comments that exist ing affirmative defense provisions do not preclude parties from filing enforcement actions or hinder parties from seeking injunctive relief for violations of SIP requirements.”

Comment:

ADEQ was among commenters that claimed that the EPA should not have relied on the D.C. Circuit’s decision in NRDC in the supplemental proposal because the NRDC decision is nonbinding in the SIP realm.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.2, “Comments that the EPA is misapplying the decision of the D.C. Circuit in NRDC v. EPA to SIP provisions b ecause the court did not address the legality of affirmative defense provisions in SIPs.”

Comment:

ADEQ was among commenters that stated th at the EPA should follow the holding of Luminant
, instead of NRDC , in assessing the appropr iateness of affirmative defense provisions for malfunctions. ADEQ asserted that the Luminant decision demonstrates that an affirmative defense provision for malfunc tions is permissible.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.7, “Comment s that the EPA’s proposal is inappropriate because it runs counter to previous court decisions, including the Fifth Circuit’s decision in Luminant v. EPA.”

Comment:

ADEQ was among commenters that claimed that the EPA’s supplemental proposal notice is unreasonable because it punishes a permittee for unavoidable excess emissions that could not have been prevented by careful planning a nd were beyond the fac ility’s control.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.8, “Comme nts that affirmative defense provisions are needed or appropriate because sources cannot control malf unctions or the excess emissions that occur during them.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

107 Comment:

ADEQ was among commenters that stated that if th e EPA finalizes its action requiring states to remove affirmative defense provisions for malfun ctions from SIPs, alternative emission limits would need to be developed because current st andards often do not take into account non-steadystate conditions. ADEQ asserted that this will be a time, resource, and data intensive process. ADEQ claimed that the SIP call is not the most appropriate use of limited time, money, and staffing resources.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section IV.D.14, “Comments that the EPA failed to account adequately for the amount of time and resources that will be re quired to revise state SIPs.”
4. Comment of parties other than the state on the Arizona SIP

Comment:

One commenter stated that the EPA’s proposed de nial of the petition with respect to Pima County’s enforcement discretion rule is imprope r because the commenter believes the provision is ambiguous and could be constr ued to preclude enforcement actions by the EPA or citizens. The commenter argued that, at a minimum, th e EPA should require Arizona to amend the language in the SIP provision to make clear th at it does not limit enforcement by the EPA or citizens.

Response:

As the EPA explained in the proposal notice, it does not believe that Ru le 706 creates ambiguity that could be construed to prec lude enforcement by the EPA or citizens. Rule 706(D) provides: “[t]he control officer may defer prosecu tion ... for an exceedance of a control standard” (emphasis added). This rule does not address enfo rcement by the EPA or citizens in any way. Further, Arizona’s Pima County Department of En vironmental Quality commented in support of the EPA’s proposed interpretation of this rule an d confirmed that the EPA’ s interpretation of the provision is correct.

Comment:

One commenter noted that in 1996, the American Mining Association (AMA ) filed a petition for review in the Ninth Circuit C ourt of Appeals regarding the EP A’s refusal to fully approve Arizona’s title V program because of concerns w ith a prior excess emissions rule. According to the commenter, AMA, ADEQ and the EPA deve loped rule language that resolved the “outstanding issues” and was the basis for the settlement of the litigation. The commenter stated that as part of the settlement agreement, the EPA agreed to act on ADEQ’s SIP submission of the revised rule, and in 2001, the EPA approved ADE Q’s SIP revision, which included the language at issue in this action. According to the commenter, the EPA explained in its final action that itResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

108 had proposed to approve the rules because it ha d determined that the rules complied with the relevant CAA requirements and the EPA’s 1999 SSM policy memo.

Response:

The EPA disagrees with the commenter’s charac terization of the term s of the settlement agreement. As the commenter notes, as part of the settlement agreement, the EPA committed to take final action within a specified period of ti me on submitted SIP provisions that address excess emissions during period of startup, s hutdown, malfunction, and maintenance. Such provisions are now subject to the EPA’s SIP ca ll and revised SSM poli cy. However, nothing in that settlement agreemen t precludes the EPA from later dete rmining based on intervening case law, a change in EPA policy, or a change in the EPA’s interpretation of the Clean Air Act that such SIP provisions are now substantially inad equate and should be removed from the SIP. The settlement agreement itself states that nothi ng in the agreement shall limit the EPA’s discretion under the CAA or its discretion “to alter, amend or revise regulations, guidance or interpretations from time to tim e or to promulgate or issue su perseding regulations, guidance or interpretations.” Settlement Agreement with AMA, ¶12. The EPA’s proposed and supplemental proposed rulemakings on SSM emissions outline the EPA’s revised poli cy and interpretation of the CAA, including that affirmative defense provisions for excess emissions during SSM events are not appropriate in SIPs. The EPA’s action in issuing a SIP call to Arizona are wholly consistent with the 2001 settle ment agreement with AMA.

For more discussion on this topic, readers may re fer to section VIII.D.18, “Comments that the EPA’s initial approval of these de ficient provisions, or subseque nt indirect approval of them through action on other SIP submissions, establ ishes that these provisions meet CAA requirements.”



### b. California

We received no comments on the provisions of the Ca lifornia SIP at issue in this action that were so specific as to be included in this document.



### c. Nevada

Although Nevada was not named among the “affected states” in the proposed rulemaking, the Nevada Division of Environmental Protection ( NDEP) (0451) and the State of Nevada’s Clark County Department of Air Quality (0446) pr ovided general comment on the February 2013 proposal.

1. Comment of the Nevada Divisi on of Environmental Protection (NDEP) (0451)

Comment:

The NDEP stated it is inappropriate for the EPA to issue a SIP call for SSM provisions without establishing that such provisions have actua lly resulted in a violation of the NAAQS.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

109 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call.”

Comment:

The NDEP was among commenters who generally oppos ed the EPA’s interp retation of the CAA with respect to “director’s di scretion” provisions and thus di sagreed with the EPA’s proposal. The NDEP alleged that the EPA’s position with re spect to director’s discretion provision was counter to the spirit of cooperative federalism embodied in the CAA and that states should be “allowed the ability to use discretion in dete rmining whether excess emissions during an SSM event should be cons idered a violation.”

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VII.C.3.a, “Comments that br oad state discretion to develop SIP provisions includes the authority to create provisions that include director’s discretion variances or exemptions for excess emission during SSM events ” and section V.D.2, “Comments that EPA’s action on the Petition violates ‘cooperative federalism.’”

Comment:

The NDEP was among commenters who supported the use of interpretive letters.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VI.D.1, “Comments that suppo rted the EPA’s interpretation of the CAA to allow reliance on interpretive letters to clarify ambiguities in state SIP submissions.”

Comment:

The NDEP was among commenters who generally st ated that the EPA was inappropriately basing the SIP call on guidan ce, which is nonbinding.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.14, “Comments that th e EPA inappropriately is ‘using guidance’ as a basis for the SIP call action.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

110 2. Comment of the State of Nevad a’s Clark County Department of Air Quality (0446)

Comment:

The State of Nevada’s Clark County Department of Air Quality was among many commenters who generally stated that prior EPA actions and interpretations directly contradict the position taken by the EPA in the February 2013 proposal.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.n, “Comments that EPA’ s action on the petition is a ‘change of policy.’”

Comment:

The Clark County Department of Air Quality was among commenters who expressed concern that the EPA does not address the difficulty of establishing alternative emission limitations or suggest other available control measures that would achieve the same result. The Clark County Department of Air Quality argued that establis hing alternative emission limitations for startup and shutdown, while still demonstrating complian ce with applicable CAA requirements, would be a difficult, time-consuming task.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for states to develop emission lim itations that apply duri ng startup and shutdown instead of existing exemptions.”

Comment:

The Clark County Department of Air Quality wa s among commenters who generally stated that the EPA’s proposed rulemaking action may resu lt in increased air pollution emissions.

Response:

The EPA understands the concern of the commenter to be that elimination of existing affirmative defense provisions will necessarily result in additional emissions because sources will lose the incentive to be properly designed, maintained and operated and to respond to malfunctions promptly so as to qualify for a narrowly drawn affirmative defense. First, the EPA notes that the commenter assumes that sources will not be simi larly diligent with respect to complying with applicable SIP emission limitations absent an affirmative defens e. The EPA disagrees that the existing structure of the CAA doe s not already provide a statutory framework that will encourage sources to limit emissions or to proceed res ponsibly in the event of a malfunction. Second, the EPA notes that, regardless of the commenter’s policy preference for relying on an affirmativeResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

111 defense provision to encourage better emissions control from sources, the CAA does not permit the states to create such provisions.

In addition, the EPA believes that this topic is ad equately addressed in the notice of final action and directs readers to section VIII.D.26, “Comments t hat a SIP call directing states to eliminate exemptions for excess emissions du ring SSM events is a ‘paper exer cise’ or ‘exalts form over substance.’” 

### 2.10 Affected State Rules in EPA Region X

a. Alaska

1. Comment of the Alaska Department of Environmental Conservation (Alaska DEC) (0629)

Comment:

The Alaska Department of Environmenta l Conservation (Alaska DEC) was among many commenters who generally stated that CAA § 11 0 provides states with broad discretion in developing their SIPs and that the EPA exceeded its authority in this proposed SIP call. The Alaska DEC was also among commenters who ge nerally stated that the proposed SIP call contravenes the principle of cooperative federa lism or that it underm ines the federal-state partnership intended by the CAA.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.2, “Comments that EPA’ s action on the Petition violates ‘cooperative federalism.’”

Comment:

Alaska DEC noted that Alaska ’s regulatory approach has been successful in achieving compliance with the NAAQS. Alaska DEC stated that CAA section 110(k )(5) requires the EPA to make a finding that Alaska’s SIP is “subs tantially inadequate” to comply with the requirements of the CAA in order to issue a SIP call and that the EPA’s proposed SIP call is not justified by supported factual findings showing th at Alaska’s approach to SSM has not been adequate to meet the state’s CAA obligations to attain or maintain the relevant NAAQS. Alaska DEC commented that Alaska’s SIP has been succe ssful in attaining and maintaining air quality standards during the 15 y ears that Alaska’s excess emissions provision has been in effect.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.17, “Comments that bec ause areas are in attainment of the NAAQS, SIP provisions such as automatic exempti ons for excess emissions during SSM events are rendered valid under the CAA.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

112 Comment:

The Alaska DEC was among many commenters who expressed conc ern that the EPA has not involved stakeholders in the pr ocess. Specifically, the Alaska DEC commented that the EPA failed to properly consult with Alaska on the spec ific issues and findings related to Alaska’s SIP before proposing the SIP call.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section V.D.1, “Comments that the EPA should not have responded to the petition for rulemaking or that the EPA was wrong to do so.”

The EPA additionally notes that in acting on r evisions to the Alaska SIP in 2007, the EPA specifically did not approve what the EPA charac terized as minor changes to Alaska’s excess emission provision (Alaska Admin. Code tit. 18 § 50.240) from what was last approved by the EPA in 1998, 8 due to concerns that approval of ev en minor changes could be interpreted to imply that the EPA still believed Alaska Admin. Code tit. 18 § 50.240 was consistent with the CAA. Instead, the EPA reviewed this provision and concluded that it was not consistent with the EPA’s interpretation of the CAA regarding the ty pes of affirmative defenses then believed appropriate for SIPs, for many of the same re asons identified in the proposed SIP call. 9 72 FR 5232 at 5238 (February 5, 2007) (proposed action); 72 FR 45378 (August 14, 2007) (final

8 63 FR 6398 (November 18, 1998). Note that the EPA’s action on the Alaska SIP became effective on January 19, 1999, and is referred to variously in diffe rent documents as the 1998 action on the Alaska SIP and the 1999 action on the Alaska SIP.

9 The proposed SIP call and EPA’s 2007 action on the Alaska SIP differ in some respects. The EPA’s 2007 action on revisions to the Alaska SIP conclude d that Alaska’s affirmative defense for startup, shutdown and malfunction contained in 18 AAC 50.240 (almost identical to the version of the regulation that is the subject of the SIP call) did not contai n sufficient criteria to ensu re such events were truly unavoidable and limited to the maximum extent possible, and it concluded that providing an affirmative defense for scheduled maintenance was inappropriat e because such events could be scheduled and planned for. 72 FR 5232 at 5238 (proposed action); 72 FR 45378 (August 14, 2007) (final action). After further consideration, as explained in the Fe bruary 2013 proposal and the September 2014 SNPR, the EPA has concluded that providing an affirmative defe nse in the case of startup, shutdown, scheduled maintenance or malfunction is not consistent with the CAA. See 78 FR 12459 at 12469–73; 70 FR 55919 at 55951–52. In addition, a lthough the EPA’s 2007 action on the revisions to the Alaska SIP noted that 18 AAC 50.240 did not make sufficiently clear that th e DEC’s decision that the criteria for obtaining an affirmative defense from penalty are met is not binding on EPA or citizens (72 FR 5232 at 5238), the proposed SIP call additionally noted that the st atement that “[t]his section does not limit the department’s power to enjoin the emission or require corrective action” could be interpreted to exclude the EPA or citizens from seeking inj unctive relief (78 FR 12459 at 12526).Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

113 action). The EPA received no comments from the Alaska DEC on that proposal. 10 72 FR at 45378. Given the EPA’s statements on Alaska’s excess emission provision in 2007, the EPA does not agree with the Alaska DEC’s characteri zation that the EPA has only now changed its policies and interpretations of the CAA and is ig noring past precedent and states’ authorities or with the implication that th e EPA had not made the Alaska DEC aware of the EPA’s concerns with 18 AAC 50.240.

Comment:

The Alaska DEC objected to the EPA’s proposal to issue a SIP call with respect to Alaska’s excess emissions regulation 18 AAC 50.240, noting that Alaska’s regulation was promulgated in 1997 and approved by the EPA in 1998. 11 The Alaska DEC noted that the EPA concluded in 1998 that Alaska’s “statutes rela ting to state policy, procedures, investigatory and enforcement authority are adequate to provide the necessary assurances suffici ent to insure implementation of the SIP as required for federal approv al...,” citing to 63 FR 44208, 44209 (August 18, 1998) (proposed action).

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.18, “Comments that th e EPA’s initial approval of these deficient provisions, or subsequent indi rect approval of them through action on other SIP submissions, establishes that these provisi ons meet CAA requirements.”

Comment:

The Alaska DEC stated that Alaska’s excess emi ssions provision in Alaska Admin. Code tit. 18 § 50.240(d) only provides relief fo r unavoidable events that ca nnot be prevented by careful planning and design. The Alaska DEC further as serted that the caref ul planning and design prerequisites equate to the “spe cial emission limitations or othe r control measures or control techniques” that the EPA concludes are allo wed under the CAA. Thus, the Alaska DEC concluded, Alaska’s careful pla nning and design requirement pr ovides for continuous emissions reductions even during periods of startup and sh utdown, and the fact that these limitations are imposed through Alaska’s excess emissions regula tion rather than permit conditions does not violate the CAA.

10 The Alaska Oil and Gas Association (AOGA), also a commenter on the February 2013 proposal, did send a letter during the public comment period on the EPA’s 2007 proposal on revisions to the Alaska SIP, stating that AOGA had no comments on the EPA’s 2007 proposal not to approve the minor amendments to the Alaska DEC’ s excess emission regulation (18 AAC 50.240) based on its understanding that the EPA’s action did not affect the SIP-approved status of the version of 18 AAC 50.240 adopted by the Alaska DEC in 1997 and approved by the EPA into the SIP effective in 1999. The EPA confirmed that understanding. 72 FR at 45378.

11 The Federal Register notice was signed in 1998 but had a 1999 effective date.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

114 Similarly, with respect to Alaska Admin. Code tit. 18 § 50.240(e), the Alaska DEC stated that Alaska’s provision addressing excess emissions during scheduled maintenance requires the owner, operator, or permittee to prove that th e excess emissions could not have been avoided through reasonable design, better scheduling fo r maintenance, or better operation and maintenance practices. The Alaska DEC went on to note that these prerequisites essentially impose “special emission limitations or other cont rol measures or control techniques” that the EPA concludes are allowed under the CAA and that enforcement relief would otherwise only be available during maintenance if the emissions resulted from an unavoidable unplanned upset or malfunction.

The Alaska DEC also commented that any anal ysis of whether Alaska’s approved SIP is sufficiently robust to satisfy CAA section 110 (a)’s ambient air quality requirements must consider Alaska Admin. Code tit. 18 § 50.201 (Ambie nt Air Quality Investigation). The Alaska DEC went on to note that an excess emissions event qualifying for penalty relief under that provision remains subject to the ambient air qua lity standards protections of Alaska Admin. Code tit. 18 § 50.201(c). Under that regulation, the Alaska DEC stated that it may require an evaluation and reduction or contro l of emissions that have a re asonable likelihood of causing or significantly contributing to ambien t concentrations of one or more air pollutants that exceed an ambient air quality standard, maximum allowabl e increase, or Alaska’s broad “air pollution prohibited regulation” (Alaska Admin. Code tit. 18 § 50.110), which prohibits an emission that is injurious to human health or welfare, animal or plant life, or property, or that would unreasonably interfere with the enjoyment of life or property. This overrid ing ambient air quality protection remedy under Alaska Admin. Code tit. 18 § 50.201, continued the Alaska DEC, ensures that Alaska’s combina tion of SIP provisions is adequate to meet the state’s CAA section 110 obligations.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.A.3.m, “Comments that a ‘general duty’ provision—or comparable generic provisions that require sources to ‘exercise good engin eering judgment,’ to ‘minimize emissions’ or to ‘not cause a violation of the NAAQS’ —inoculate or make up for exemptions in specific emission limitations t hat apply to the source.”

Comment:

The Alaska DEC stated that regulation Alaska Admin. Code tit. 18 § 50.240 does not bar the EPA and citizens from seeking in junctive relief for excess emissi ons or penalties for avoidable excess emissions.

The commenter went on to note that the statemen t in Alaska Admin. Code tit. 18 § 50.240(b) that the regulation does not limit the department’s powe r to enjoin the emissions or require corrective action speaks only to the department’s power and in no way limits a court’s power in an action by EPA or in a citizen’s suit to enjoin the emi ssions. The Alaska DEC stated that it does not interpret its regulation to bar such actions and that the EPA has not interpreted in that way before this proposed SIP call. In the more than 15 years that the regulation has been in effect, Alaska’sResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

115 regulation has never been used to bar the EPA or citizens from seeking injunctive relief or penalties for avoidable excess emissions.

Response:

Because the EPA has concluded that the CAA pr ecludes the EPA from approving SIP provisions that provide any affirmative de fense for violations due to ex cess emissions, it is no longer relevant whether the Alaska DEC’s determina tion that excess emissions are “unavoidable” under Alaska Admin. Code tit. 18 § 50.240 bars onl y the Alaska DEC from seeking penalties or also bars the EPA and citizens from seeki ng penalties and injunctive relief.

In any event, although the EPA continues to believe t hat the use of interpre tive letters to clarify ambiguous provisions in a SIP submission is a permissible and sometimes necessary approach under the CAA (78 FR 12459 at 12475), the EPA belie ves the ambiguity here is sufficiently significant that it could not be addressed by an interpretive letter. The EPA appreciates the Alaska DEC’s position that it does not interp ret Alaska Admin. Code tit. 18 § 50.240 to bar the EPA and citizens from seeking injunctive relief for excess emissions. As the EPA stated in the initial SSM proposal, however, ambiguous provisions that may be read to preclude EPA or citizen enforcement can interfere with the overarching objectives of the CAA. 78 FR 12459 at 12474. The Alaska DEC does not explain in its comments why the specific reference in the regulation to the Alaska DEC not being barred fr om seeking injunctive relie f or corrective action would not be best read as precluding other par ties, namely, the EPA and citizens, from seeking injunctive relief.

With respect to penalties, the Alaska DEC’s le tter states on two occasi ons that Alaska Admin. Code tit. 18 § 50.240(b) “does not bar the EPA and citizens from seeking...penalties for avoidable excess emissions.” (emphasis added). The EPA agrees that the regulation does not preclude the EPA or citizens from seeking pe nalties for avoidable excess emissions—the regulation provides relief only fr om penalties deemed to be “unav oidable,” as that term is used in the regulation. To the extent the Alaska DEC intended to state inste ad that Alaska Admin. Code tit. 18 § 50.240(b) does not bar the EPA and citizens from seeking penalties for “unavoidable” excess emissions (as t hat term is used in the regulation), the Alaska DEC does not explain why the regulation discusses injuncti ve relief with respect to “the department” (second sentence in subsection (b)) but does not di scuss the prohibition on penalties only with respect to “the department.” The EPA therefore continues to believe th at the regulation is sufficiently ambiguous on whether the Alaska DEC’s determination that emissions are “unavoidable” under that regulation is binding on the EPA and citize ns that it cannot simply be clarified with an interpretive letter.

In addition, the EPA disagrees that we have not previously expr essed concern that Alaska Admin. Code tit. 18 § 50.240 could be interpre ted to limit the EPA’s and citizens’ ability to enforce. In the EPA’s 2007 decision not to appro ve minor amendments to Alaska Admin. Code tit. 18 § 50.240 due to concerns that doing so would imply that the EPA believed that the regulation meets CAA requirement s for SIP excess emission prov isions, the EPA specifically stated, “Finally, 18 AAC 50.240 does not make clear t hat [the Alaska DEC’ s] decision that theResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

116 criteria for obtaining the affi rmative defense from penalty is met is not binding on EPA and citizens.” 72 FR 5232 at 5238.

Comment:

The Alaska DEC commented that it does not concur with the EP A’s interpretation of Alaska Admin. Code tit. 18 § 50.240 and that its provi sions apply solely to enforcement actions undertaken by the Alaska DEC, and as such, they do not bar nor limit enforcement actions that might be sought by the EPA or citizens. Theref ore, the Alaska DEC continues to oppose the EPA’s proposed findings that Al aska Admin. Code tit. 18 § 50.240 is “substantially inadequate” and the SIP call.

Response:

The EPA appreciates the Alaska DEC’s position that it does not interpret Alaska Admin. Code tit. 18 § 50.240 to bar the EPA and citizens from s eeking injunctive relief for excess emissions. As the EPA stated in the initial SSM proposal, however, ambiguous provisions that may be read to preclude the EPA or citizen enforcement can in terfere with the overar ching objectives of the CAA. 78 FR 12459 at 12474. The Alaska DEC does not explain in its comments why the specific reference in the regulation to the Alaska DEC no t being barred from seeking injunctive relief or corrective action would not be best read as precluding other parties, namely, the EPA and citizens, from seeking injunctive relief.
2. Comment of the Alaska DEC (1128)

Comment:

The Alaska DEC was among comment ers that stated the EPA misi nterpreted the state’s SIP provision at issue in the supplemental proposal no tice because the affirmative defense provisions apply solely to enforcement actions undertaken by the Department. The Alaska DEC asserted that the affirmative defense does not bar or lim it enforcement actions that might be sought by the EPA or citizens.

Response:

As explained in the immediately preceding re sponse, the EPA disagrees with the commenter concerning the existing SIP provision. The EPA’ s understanding of the provision as it currently is written is that the Agency and other partie s are precluded from bringing an enforcement action for violations under certain circumstances . The EPA is concerned that the court in any enforcement action would likely read the provision in the same way, thereby limiting the ability of the Agency or other parties to enforce for vi olations of SIP emission limitations. As explained in the notice of final action, the EPA interprets the CAA to preclude SIP provisions that, as written, could interfere with the enforcement struct ure of the CAA, including SIP provisions that are sufficiently unclear t hat a court could construe them to op erate in this fashion. As the court concluded in the US Magnesium decision, the E PA’s SIP call authority in cludes the authority to direct states to clarify existi ng SIP provisions and it is “prude nt” to do so in circumstancesResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

117 where courts could misconstrue the provisions to allow outcomes that are inconsistent with CAA requirements.

In addition, the EPA notes that this topic is also addressed in the notice of final action and directs readers to section IV.D.16, “Comments t hat existing affirmative defense provisions do not preclude parties from filing enforcement actions or hinder parties from seeking injunctive relief for violations of SIP requirements.”



### b. Idaho

1. Comment of the Idaho Depart ment of Environmental Quality (0360)

Comment:

The Idaho Department of Environmental Qual ity (Department) concurred with the EPA’s interpretation of Idaho Admin. Code r. 58.01.01.131 12 at 78 FR 12537, where the EPA stated that this Idaho SIP provision appears to be an a ppropriate enforcement discretion provision.

Response:

The EPA acknowledges Idaho’s confirmation that Idaho Admin. Code r. 58.01.01.131 is a statement of enforcement discre tion and that Idaho’s determination to forgo enforcement action does not preclude enforcement action by the EPA or citizens.
2. Comment of parties other th an the state on the Idaho SIP

Comment:

One commenter stated that the EPA’s deni al of the petition on Idaho Admin. Code r. 58.01.01.131 is improper because the SIP provision is ambiguous and could be construed to preclude enforcement by the EPA or citizens. The commenter argued that the EPA should require, at minimum, that Idaho clarify in the pl ain language of its regula tion that this provision does not limit enforcement actions by anyone other than Idaho.

Response:

As discussed in the February 2013 proposal, the EPA believes that the current language in Idaho Admin. Code r. 58.01.01.131 does not in any way suggest that the Department’s determination to forgo state enforcement against a source w ould preclude the EPA or the public from demonstrating that violations occurred or from taking enforcement action. Idaho has since expressly confirmed that the EPA’s interpretati on is correct. The EPA disagrees that the CAA

12 This is also cited to in the Department’s submission as IDAPA (Idaho Administrative Procedures Act) 58.01.01.131.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

118 requires that the Idaho regulation to be revised to state more exp licitly that Idaho’s decision to forgo enforcement action is not binding on the EPA or citizens.


### c. Oregon

1. Comment of the Oregon Department of Environmental Quality (0861)

Comment:

The Oregon Department of Environmental Quality (Oregon DEQ) stated that it agrees with the EPA’s proposal to deny Sierra Club’s petiti on with respect to OAR 340-028-1450. The Oregon DEQ commented that a provision in the Oregon SIP that grants enforcement discretion to the state to pursue violations for excess emissions dur ing certain SSM events was recently recodified and approved by the EPA at OAR 340-214-035 0. The Oregon DEQ argued that OAR 340-214- 0350 is plainly a statement of enforcement disc retion, and it delineates factors that will be considered by DEQ in determining whether to pursue state enforcement for violations of the applicable SIP emission limitations. The Oregon DE Q noted that there is no language in this provision suggesting that DEQ’s de termination to forgo enforcement against a source would in any way preclude the EPA or the public from dem onstrating that violatio ns occurred and taking enforcement action.

Response:

The EPA acknowledges the Oregon DEQ’s confir mation that OAR 340-214-0350 is a statement of enforcement discretion and that the Oregon DE Q’s determination to forgo enforcement action against a source does not in any way preclude th e EPA or citizens from demonstrating that violations occurred and ta king enforcement action for civil penalties or injunctive relief.
2. Comment of parties other th an the state on the Oregon SIP

Comment:

One commenter stated that the EPA’s denial of the petition on OAR 340-214-0350 is improper because although that provision has been change d since Sierra Club’s petition, it remains ambiguous and could be construe d to preclude EPA or citizen enforcement. The commenter added that the EPA should require, at minimum, th at Oregon clarify in th e plain language of the regulations that this pr ovision does not limit EPA or citizen enforcement.

Response:

As discussed in the proposed SIP call, the EPA believes that the cu rrent language of OAR 340- 214-0350 does not in any way suggest that the Department’s determination to forgo state enforcement against a source woul d preclude the EPA or the public from demonstrating that violations occurred or from taking enforcemen t action. Oregon has since concurred in the EPA’s interpretation. The EPA disagrees that the CAA requires that the Oregon regulation to beResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

119 revised to expressly state that Oregon’s decision to forgo enfo rcement action is not binding on the EPA or citizens.


### d. Washington

1. Comment of the Washington De partment of Ec ology (0442)

Comment:

The Washington Department of Ecology commente d that the EPA’s position in the February 2013 proposal fails to address the statistical nature of the NA AQS, technical difficulties in determining if a single event caused a NAAQS exceedance, or the allowance in the PSD regulations that a PSD increment can be exceeded once per year. The Washington Department of Ecology asserted that it addresses this difficulty with the ambien t standards by stating that the excess emissions have to result in a measur ed exceedance of a NAAQS rather than a modeled exceedance. This stated position, the Washingt on Department of Ecology, lends a degree of clarity to the demonstration while addressing the statistical nature of current ambient air quality standards, but it does not elim inate the difficulty in showing noncompliance or compliance with current, statistical ambient ai r quality standards. The Wash ington Department of Ecology requested that the EPA provide clarity as to how to implement the policy provision that an excess emission event cannot cause an exceedance of an ambient standard or PSD increment, especially how to adequately address short-term, BACT, or ambient impact-based emission limits that use the averaging periods of the short-term NAAQS.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VIII.D.1, “Comments that section 110(k)(5) requires the EPA to ‘prove causation’ to have authority to issue a SIP call”; section VIII.D.7, “Comments that the EPA failed to consider how excess emissions resulti ng from SSM exemptions would affect compliance with specific NAAQS, including NAAQ S with different averaging peri ods or different statistical forms”; and section VIII.D.20, “Comments that exemptions for excess emissions during SSM events are not a concern with respect to PSD and protection of PSD increments.”

Comment:

The Washington Department of Ecology was am ong commenters who expressed concern as to whether emission controls can be operated to curtail startup/shut down emissions that occur in all situations. The Washington Department of Ecol ogy contended that du ring the startup of emissions units, such as SCR on a combined cy cle combustion turbine, emission controls are often not turned on until specifi c temperatures or operating rate s are achieved and that it is probable during this time for the emissions from the unit to exceed standards including permit limits for normal operations, emission standards in a SIP, or short-term NAAQS. The Washington Department of Ecology requested that the EPA “provide multiple, clear examples on how to address situations where during unit star tup it is unavoidable to exceed a SIP emission standard or a NAAQS.”Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

120 Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.B.3.a, “Comme nts that as a technical matter sources cannot meet emission limitations (or cannot be a ccurately monitored) duri ng startup and shutdown.”

Comment:

The Washington Department of Ecology was am ong commenters who expressed concern that, although the EPA recognized that planned startup and shutdown events may result in excess emissions, the EPA does not address the difficu lty of establishing al ternative emission limitations (AELs) or suggest other available co ntrol measures that would achieve the same result. The Washington Department of Ecology raised concerns w ith how AELs would be set, stating that reference method stack tests are of ten the only reliable way to determine pollution concentrations for most air pollu tants but that such tests do not provide reliable results when conducted during other than steady-state condi tions (such as startup and shutdown).

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for states to develop emission lim itations that apply duri ng startup and shutdown instead of existing exemptions.”

Comment:

The Washington Department of Ecology was among commenters who generally stated that the EPA should allow states to rely on the work pr actice standards in othe r rules as reasonable substitutes for AELs during startup and s hutdown. The Washington Department of Ecology suggested that such work practice standard could be codified in i ndividual NSR permits, or in the state's SIP, or both.

Response:

The EPA believes these topics are adequately addre ssed in the notice of final action and directs readers to section VII.B.3.c, “Comments that th e EPA should ‘authorize’ st ates to replace SSM exemptions with ‘work practice’ standards d eveloped by the EPA in its own recent NESHAP and NSPS rules” and section VII.A.3.j, “Comments that an emission limitation can be ‘continuous’ even if it has different numerical limitations applicable during some modes of source operation or has a combination of numerical emission limi tations and specific control technologies or work practices applicable during other modes of operation.”

Comment:

The Washington Department of Ecol ogy stated that it is unreasonabl e to expect a state to include in its SIP an AEL for every source during st artup and shutdown and the EPA should insteadResponse to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

121 provide that such AELs could be solely in th e source’s permit. The Washington Department of Ecology noted that these AELs will likely vary fro m source to source so it is unlikely that one AEL will fit all sources, and the commenter believe d that the process of revising the SIP each time a source-specific AEL during st artup or shutdown is establishe d or revised would add to the SIP backlog that already exists . The Washington Department of Ecology thought it unlikely that the EPA could address the number of SIP actions this would require and stated that a simpler system for establishing AELs through means other than a SIP revision is needed to keep the states and the EPA from being overloaded with SIP processing. The Washington Department of Ecology recommended that the EPA permit states to include in a SIP the process the state uses for determining AELs rather than requiring a SIP revision each time an AEL is established or revised, including how the AEL will be set and ho w a state will assess the impact of the AEL on NAAQS, PSD increment, NSPS, NESHAP, and SIP limits. The Washington Department of Ecology stated that the AELs could be includ ed in the source’s construction and operating permits, which in most cases are subject to EPA and public review and comment. The Washington Department of Ecology a sserted that this process coul d be similar to the process by which BACT and LAER determinations are made and that BACT and LAER limits are typically included in a source’s permits but ar e not included in the state SIP.

Response:

The EPA understands the concerns of the commenter, if the state in fact elects to establish source-specific alternative emi ssion limitations for startup and shutdown at each individual source. The EPA notes that many states elect to create emissi ons limitations that apply to categories of sources, rather than source by sour ce. The election to establish source-specific alternative emission limitations is, however, at th e discretion of the state, so long as they are properly established, meet applicabl e stringency requirements for th e type of SIP provision at issue, and are legally and practically enforceable.

With respect to the commenter’s suggestion th at the EPA should encourage states to use a “permitting” process to develop and impose source- specific alternative emission limitations, the Agency notes that states, through a permit proces s, are always able to impose permit limitations on sources that are more stringent than the otherwise applicable SIP emission limitations. However, the EPA understands the commenter’s sugges tion to be that states should be able to relax or eliminate SIP emission limits through a permit process, withou t compliance with CAA requirements applicable to SIP revisions. As expla ined in the final notic e for this action, the EPA believes that such an approach is inconsistent wi th CAA requirements for SIP provisions to the extent that it provides unbounde d director’s discretion to al ter otherwise applicable SIP emission limitations without the EPA’s approval of those revisions. Labeling such a program as a “permitting” program, rather than as a “var iance” program or some other term, does not alter the underlying concept ual problems with such an approach. The EPA agrees that if a permitting program were properly established and bounded such that, at the time of approval of the SIP provision, the Agency could fully evaluat e the potential impacts of the exercise of directors’ discretion, the provision may be consis tent with CAA requirements. In addition, such a program would need to assure that any deviatio ns from the otherwise applicable SIP emission limitations on a source-by-source basis are develope d to include sufficient public process. The EPA will need to evaluate any such SIP provis ion creating such a program on its merits.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

122 In addition, the EPA notes that this topic is also addressed in the notice of final action and directs readers to section VII.B.3.b, “Comment s that it is impossible, unreasonable or impractical for states to devel op emission limitations that appl y during startup and shutdown to replace existing exemptions.”

Comment:

The Washington Department of Ecology was among commenters who generally stated that the EPA should undertake a process to establish regulations on SSM be fore finalizing any SIP call. The Washington Department of Ecology stated that requiring states to implement federal guidance in a state rule is problematic because it is only guidance and because there has not been an opportunity for public discussion of the i ssues surrounding the guidance. The Washington Department of Ecology noted in particular that the EPA’s proposed SIP call expressly stated that the EPA’s SSM Policy is a policy statement, constitutes guidance, and does not bind states, the EPA, or other parties. The Washington Departme nt of Ecology requested that the EPA propose its SSM Policy as a regulation applicable to the EPA and the states that can be publicly reviewed on the merits, so that alternative views can be fu lly considered and the policy can build on actual information regarding excess emissions during SSM events at individual emission units and at whole facilities.

Response:

The EPA believes this topic is adequately addre ssed in the notice of final action and directs readers to section VIII.D.14, “Comments that th e EPA inappropriately is ‘using guidance’ as a basis for the SIP call action.”
2. Comment of parties other than the state on the Washington SIP

Comment:

One commenter stated that the changes to Wa shington’s regulations th at the EPA’s SIP call would demand may be inconsistent w ith Revised Code of Washington § 70.94.431, 13 in which the Washington legislature specifically direct ed the Washington Depart ment of Ecology “to develop rules for excusing excess emissions from enforcement action if such excess emissions are unavoidable.”

Response:

The EPA disagrees that the Washington Departmen t of Ecology would be unable to promulgate a regulation with respect to SSM provisions in SI Ps that is consistent with both the CAA and the Revised Code of Washington § 70.94.431. That statut e leaves to the Washington Department of Ecology the discretion to de termine the “criteria and pro cedures for [the Washington Department of Ecology] and local air authoritie s to determine whethe r a period of excess

13 The commenter cited to Revised Code of Washington § 70.94.4431, which appears to be a typographical error.Response to Comments – SS M SIP Rulemaking – EPA-HQ- OAR-2012-0322 – May 2015

123 emissions is excusable in accordance with the state implementation plan.” The statute does not in any way specify the criteria or the procedur es that the Washington Department of Ecology must consider, and the statute does not appear to prohibit the Washington Department of Ecology from promulgating a regulation that ta kes an enforcement discretion approach rather than an affirmative defense approach to excess emissions.

In any event, that a state must revise a statute in order to promulgate regulations consistent with the CAA does not affect the EPA’s authority and ob ligation to promulgate a SIP call when the SIP provision at issue fails to meet CAA requirements.