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

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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 .......................................................................................................... 82
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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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 .............................................................................................. 119
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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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 significant 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, and questions contained within the 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 comments received on the EPA’s initial proposal 

(February 2013 proposal) and supplemental proposal 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 rulemaking, in recognition of the fact 

that the issuance of a SIP call requires an affected state to take action to revise its SIP. In 

response to a SIP call, a state retains broad discretion concerning how to revise its SIP, so long as 

that revision is consistent with the requirements of the CAA. As explained in detail in the notice 

of final action, the EPA is issuing a finding that certain SIP provisions in 36 states (applicable in 

45 statewide and local jurisdictions) 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 rectify 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 similar or related responses. 

Although some portions of the notice of final action are referenced or paraphrased in this 

document, to the extent any ambiguity is introduced by this referencing or paraphrasing, the 

notice itself remains the definitive statement 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 instances, particularly in cases where essentially 

identical arguments were made by multiple commenters. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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2.0 Affected State Rules 

2.1 Affected State Rules in EPA Region I 

a. Maine 

We (the EPA) received no comments on the provisions 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 Hampshire SIP provisions at issue in the EPA’s 

proposal address opacity, most of which allow a 6-minute-per-hour exemption for startups, 

shutdowns, and boiler maintenance. The NHDES stated 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 contribute 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 PM10 and PM2.5 NAAQS, states should not be required to demonstrate in 

attainment plans “that visible emissions allowed by [SSM] exceptions did not cause and will not” 

contribute to NAAQS violations. Id. at 3. NHDES further argued 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 Policy interpreting the CAA with respect to SIP 

provisions since at least 1982. The NHDES was mistaken when it stated that the EPA determined 

that SIP provisions containing automatic exemptions were substantially inadequate solely 

because “emissions allowed by [automatic exemptions] could cause or contribute to violations 

of the NAAQS and PSD increment.” As the EPA explained in the February 2013 proposal, in 

accordance with the requirements of CAA section110(a)(2)(A), SIPs must contain emission 

limitations and, in accordance with the definition of “emission limitations” in CAA 

section 302(k), such emission limitations must be “continuous.” Thus, any excess emissions 

above the level of the applicable emission limitation must be considered violations. SIP 

provisions that create exemptions such that the excess emissions during startup, shutdown, or 

malfunctions are not violations of the applicable emission limitations are inconsistent with the 

fundamental requirements of the CAA with respect to emission limitations in SIPs. The EPA 

believes that inclusion of such an exemption in a SIP provision is a substantial inadequacy and 

renders the specific SIP provision impermissible. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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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 topic is adequately addressed in the 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 would affect compliance with specific NAAQS, 

including NAAQS with different averaging periods 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 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 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 approved 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. Consequently, Env-A 902.03 and 902.04 and the language 

contained in those sections (which 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 timely 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 and held a public hearing on March 8, 2013. The 

draft final proposal eliminated the exemption and established affirmative defense 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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provisions for SSM.... [A] revised rule was 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 Hampshire SIP no longer contains the language the EPA 

proposed to find substantially inadequate, including no reference to automatic exemptions 

during periods of startups and warm-ups. See 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 petition 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, narrowly-defined source 

categories using specific control strategies’ and six other limiting 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 automatic sootblowers.” Id. 

Accordingly, the commenter requested that the 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 ensure that all changes required by the policy 

underlying this rulemaking to NH SIP section Env-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 provisions explicitly listed in 

the Sierra Club’s Petition. The EPA believes this topic 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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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 expressing 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 that 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 Environmental Protection (NJDEP) commented that the EPA 

should not make a finding of substantial inadequacy 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 allowed or used as part of New Jersey’s air program.” As a result, the state 

indicated that it intends to remove the provision 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 state that still has it.... The finalization 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 recognizes 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 eliminate the use of this provision. However, 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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the rule is still part of the federally approved New Jersey SIP. Unless the EPA issues a final rule 

approving a SIP revision that eliminates the deficient provision in rule N.J.A.C. 7:27-7, the 

provision remains in effect as a federally recognized 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 Department of Natural Resources and 

Environmental Control (Delaware DNREC) (0570) 

Comment: 

The Delaware Department of Natural Resources and Environmental Control (Delaware DNREC) 

was among commenters who generally argued that requiring revision of existing 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 “believes the provisions cited in this proposed 

rule help enable Delaware to establish requirements that ensure its emission sources are well 

controlled.” Comment 0570 at 3. Delaware DNREC stated that the Delaware SIP is currently 

designed to “contain[] tight emission control requirements, along 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 function at peak efficiency during start-up.” Id. at 3–4. 

Delaware DNREC argued that if Delaware cannot keep the SIP provisions 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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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 emission limitations. As 

explained in the February 2013 proposal and the notice of final action, the EPA interprets the 

CAA to preclude SIP provisions that, 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 provisions are not consistent with CAA requirements, the EPA 

believes this topic is adequately addressed in the notice of final action and directs readers to 

section VII.A.3, “Substantial Inadequacy of Director’s Discretion Provisions.” 

The EPA appreciates the efforts of Delaware DNREC to ensure that all sources are subject to 

appropriate emission limitations at all times. To the extent that it is appropriate to establish an 

alternative emission limitation applicable to modes of source operation at a particular source, 

such as during startup and shutdown, the EPA interprets the CAA to allow such an approach so 

long as the alternative emission limitation is a part of a continuously applicable emission 

limitation, meets the requisite level of stringency for the type of SIP provision at issue, and is 

legally and practically enforceable. Regarding the topic of alternative emission limitations 

generally, the EPA believes this topic is adequately 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 resources that will increase the complexity of our 

program but result in no air quality benefit.” Comment 0570 at 4. 

Response: 

The EPA believes this topic is adequately addressed 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 proposal 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 11421

 are substantially 

 

1

 The EPA identified these provisions 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, 7-1100-1114 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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inadequate to meet CAA requirements. Delaware DNREC argued that the 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 consistent 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. Code 1103 provides that “[n]o person shall cause 

the air quality standards specified in this Regulation to be exceeded.” 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 National ... ambient air quality standards.” 

Further, according to Delaware DNREC, any alternative 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 order to attain and maintain the NAAQS, protect PSD increments, 

protect visibility, and meet other 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 practical 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 provisions 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-
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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 February 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 operating permit issued pursuant to 7-1100-1102 

governing the said emissions. The EPA disagrees with Delaware DNREC that the Delaware SIP 

provisions do not allow the creation of exemptions for emissions during SSM events. There is 

nothing in 7-1100-1102 limiting Delaware’s discretionary authority to exempt such emissions 

completely through an operating permit, so these provisions provide the opportunity for an 

impermissible exemption from continuous emission limits. 

These provisions further provide state officials unbounded discretion to establish alternative 

limits for emissions, or to create an outright exemption for emissions, in permits. All of the 

aforementioned SIP provisions specifically state that “...this Regulation shall not apply to the 

start-up and shutdown of equipment which operates continuously or in an extended steady state 

when emissions from such equipment during 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 state 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 precluded from enforcement. 

While the CAA, as interpreted in the EPA’s SSM Policy, allows states to set source categoryspecific alternative emission limitations or other forms of enforceable control measures or 

techniques that apply during periods of startup and shutdown, such alternative limitations are 

only permitted in a narrow set of circumstances and must be established through the appropriate 

SIP revision process. As explained in the February 2013 proposal, the provisions of Delaware’s 

SIP purport to authorize the state unilaterally to establish alternative 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 alternative 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 shutdown. The EPA disagrees with Delaware DNREC’s 

contention that its exemptions or alternative emission limits are narrow in scope because, for 

 

2

 The EPA notes that 7-1100-1142 Del. Code Regs § 2.3.5 has since been renumbered as 7-1100-

1142 Del. Code Regs § 2.3.1.6. See “Approval and Promulgation of Air Quality Implementation Plans; 

Delaware; Amendments to the Control of Nitrogen Oxides 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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example, there are no limitations on category of sources eligible for an alternative limit in the 

aforementioned regulations or in 7-1100-1102. Delaware’s potential exemptions from otherwise 

applicable SIP emissions limits are open to many 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. Delaware’s DNREC’s reliance on 7-1100-1102 is no 

remedy for the imperfections identified by the EPA in the February 2013 proposal as none of the 

constraints or requirements in 7-1100-1102 sufficiently and completely address the requirements 

for alternative emission limits of the CAA as interpreted in the 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 ‘director’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 provisions 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 provision that merely prohibits emissions that result 

in violations of the NAAQS is not a basis for exempting sources from continuous emission limits 

as required by CAA sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). Such restrictions on causing 

violations of the NAAQS in permits may be a helpful feature of the permit, but they cannot be 

used to justify exemptions for violations during SSM events. The CAA requirement for continuous 

emission limitations is a separate 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 Delaware SIP ensure that there will be no violation 

of any NAAQS. The EPA believes this topic is adequately addressed in the notice of final action 

and directs readers to section VIII.D.17, “Comments that 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 EPA has failed to cite “one specific instance 

where inappropriate alternative startup or shutdown limits have been established.” 

Comment 0570 at 3. Instead of providing examples or a technical analysis, 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 pollutants emitted at other times.” Id. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

11 

Response: 

The EPA disagrees that it was required to identify specific permits that contain emission limits 

allowing an inappropriate alternative emission limit for periods of startup and shutdown or to 

identify a specific environmental harm caused by any such inappropriate emission limits. The 

EPA has explained in the February 2013 proposal and the notice of final action why the 

Delaware SIP provisions at issue here are impermissible and are not in accordance with the 

CAA. Regarding Delaware DNREC’s argument that the EPA has to prove causation to have 

authority to issue a SIP call, the EPA believes this topic is adequately 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 factual findings to meet the requirements of 

section 110(a)(2)(H)(ii) to have authority to issue a SIP call.” 

b. District of Columbia 

1. Comment of the Government of the District of Columbia, District 

Department of the Environment (0452) 

Comment: 

The District of Columbia’s District Department of the Environment (“the District”) commented 

to express its disagreement “with EPA’s decision to disallow alternative limits on stationary 

sources for visible emissions during SSM periods, as included in 20 DCMR Chapter 6, 

Sections 606.1 and 606.2.”3 Comment 0452 at 2. 

In the February 2013 proposal, the District alleged, the EPA stated that the D.C. Mun. Regs. 

tit. 20 §§ 606.1 and 606.2 do not appear to comply with the CAA’s requirements as interpreted in 

the EPA’s SSM Policy because, for instance, the provisions were not limited to only apply to 

“specific, narrowly-defined source categories using specific control strategies.” 1999 SSM 

Guidance Attachment at 4–5. The District commented 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 provisions are inherently specific and narrowly tailored to only a 

few source categories. The District further stated that “it would be overly burdensome and 

unnecessary to specify source categories that are required (or not required) to comply with a 

stationary source policy 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 District argued, the alternative 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

12 

Response: 

The EPA understands that the District 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 established 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 controls during periods of startup and shutdown. The District’s small 

universe of potential sources at the present time does not sufficiently 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 applicable during startup and 

shutdown do not hinder compliance with the NAAQS is not relevant to whether these regulations 

provide limits in contravention of fundamental requirements of the CAA for SIP provisions. 

Continuous emission limits are required by CAA sections 110(a)(2)(A), 110(a)(2)(C) and 302(k) 

regardless of compliance with NAAQS. The EPA believes this topic is adequately addressed in 

the notice of final action and directs readers to section VIII.D.17, “Comments that 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.” 

As explained in detail in the February 2013 proposal, the EPA believes that the CAA, as 

interpreted in the EPA’s SSM Policy, permits alternative emission limitations during periods of 

startup and shutdown. However, the EPA interprets the CAA to require that any such alternative 

emission limitations be properly developed to assure that they are appropriately limited. The 

EPA’s SSM Policy makes recommendations concerning 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 believes that emission limitations 

in SIPs should generally be developed in the first 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 determined that the alternatives provided in 

the District’s current provisions are not appropriately limited. 

If the District wants to reevaluate its alternative emission limits and submit to the EPA a SIP 

revision that is in accordance with 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, soot-blowing, adjustment of combustion controls, or malfunction of 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

13 

equipment, “at least in part because 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 visible 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, “even 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 limits set by the District’s regulation are in 

contravention of CAA requirements. As discussed in the EPA’s SSM Policy, state regulators have 

the option of enforcement discretion for situations (such as, as the District hypothesizes, due to a 

zero percent opacity standard) when compliance is beyond control of a source. 

The District may also opt to revise its opacity standard in accordance with CAA requirements or 

could submit alternative emission 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 adequately 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 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 District commented that it will reevaluate D.C. Mun. Regs. tit. 20 § 107.3 to ensure that it 

meets CAA requirements. The District agreed that this provision “allows the Mayor to continue 

or discontinue the operation of a stationary source during 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 willingness to reevaluate and adjust provisions, as 

necessary, to meet the applicable requirements of the CAA. 

Comment: 

The District agreed with the EPA’s proposal to deny the petition with 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 regulation of which is not necessary in the NOx 

RACT portion of the SIP to meet RACT requirements or other CAA requirements in this area.” 

Comment 0452 at 3. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

14 

Response: 

The EPA acknowledges the District’s supportive comment. 

c. Virginia 

1. Comment of the Virginia Department of Environmental Quality 

(0613) 

Comment: 

The Virginia Department of Environmental Quality (Virginia DEQ) claimed that the EPA’s SIP 

call is, at least in part, premised on the EPA’s belief that SIP provisions are contrary to the Act as 

interpreted in the EPA’s SSM policy. The Virginia DEQ stated that “it is highly questionable 

whether a SIP call can be premised on mere guidance 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 addressed in the notice of final action and directs 

readers to section VIII.D.14, “Comments that the EPA inappropriately is ‘using guidance’ as a 

basis for the SIP call action.” 

Comment: 

The Virginia DEQ noted that the Virginia provision 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 stated that presumably the EPA considered the 

Virginia provision at issue “to be in accord with the SSM Policy when it approved that section 

for incorporation into the Virginia SIP.” Comment 0613 at 12. If the EPA believes the former 

approval to be a mistake, the Virginia DEQ 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 110(k)(5) provides that the EPA can issue a SIP 

call “whenever” it determines that an existing SIP provision is substantially inadequate to meet 

CAA requirements. Thus, the EPA has authority to issue a SIP call for a deficient SIP provision 

regardless of when it was initially approved. By definition, the EPA’s authority to issue a SIP 

call includes the authority to require states to revise SIP provisions that the Agency previously 

approved into the SIP, whether or not that approval 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 under 
Response to Comments – SSM 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 proceeding 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 addressed 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: 

The Virginia DEQ was among commenters who generally 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 premise of this argument, i.e., that individual SIP provisions 

do not need to meet fundamental CAA requirements for SIP provisions. The thrust of this 

argument is that emissions limitations in SIP provisions can contain explicit exemptions or 

affirmative defenses applicable to emissions during SSM events, so long as the state’s SIP as a 

whole imposes other generic obligations upon the relevant sources. 

The EPA believes 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 Virginia DEQ was among commenters who generally stated that the EPA should respect the 

federal-state partnership mandated by the CAA and leave the state regulations at issue in the 

proposal in place. The Virginia DEQ stated that the regulatory provisions in the Virginia SIP 

“have all undergone notice and comment rulemaking at the state level, and then were thoroughly 

reviewed by EPA in another notice and comment process before finally being approved by the 

agency for incorporation into the SIP.” Comment 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 addressed 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 comments from affected 

states” because “[s]tate air pollution control programs...are complicated.” Comment 0613 at A-2. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

16 

Response: 

The EPA appreciates and agrees with the comment 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 should not impose a ‘one size fits all’ solution on 

the states affected by this proposal,” but rather “solutions to fix alleged deficiencies in individual 

SIPs should be custom-tailored to individual state air programs.” Comment 0613 at A-2. 

Response: 

The EPA agrees that a “one size fits all” approach 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, updating, and revising its interpretations 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 merely directing states with SIP 

provisions that fail to meet fundamental CAA requirements to revise those provisions and 

providing guidance concerning the range of approaches that the affected states may wish to 

consider. So long as the SIP submissions in response 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 demonstrate that the Virginia SIP is “substantially 

inadequate” under § 110(k)(5) of the CAA. According to the commenter, 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 cannot be premised on mere guidance. 

Virginia DEQ stated that, absent clear evidence 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-state partnership required by the Act and leave 

9 VAC 5-20-180.G in place. 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section VIII.D.14, “Comments that the 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 discretion in development of SIP provisions.”
Response to Comments – SSM 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 (DEP) commented that the EPA’s 

proposal “is not the sort of cooperative regulation that Congress envisioned when the CAA was 

enacted.” Comment 0614 at 4. 

Response: 

The EPA believes this topic is adequately addressed 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 Virginia 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 approval, been approved in the first place.” Id. 

Response: 

The EPA disagrees with these comments. With the exception of affirmative defense provisions, 

the EPA’s action on the Petition is consistent with its interpretation 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 eliminate the jurisdiction of the 

courts to determine liability and impose remedies 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

18 

The EPA agrees that in addition to its authority under section 110(k)(5) to issue SIP calls, it also 

has authority under section 110(k)(6) to issue an error correction under appropriate 

circumstances. In this action, however, the EPA has determined that proceeding under 

section 110(k)(5) is the preferable course of action for reasons explained in detail in the 

February 2013 proposal. The EPA believes this topic is addressed in more detail 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.” 

Regarding West Virginia DEP’s argument that the EPA should not finalize this action and 

instead adopt new regulatory text, the EPA believes this 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 forbid SSM exemptions in SIP provisions if the CAA 

precludes them.” 

Comment: 

The West Virginia DEP stated that the EPA’s proposed rulemaking action is based on an 

unreasonable reading of the CAA section 302(k) requirement that an “emission limitation” apply 

on a “continuous basis.” Comment 0614 at 4. The West Virginia DEP claimed that the 

“continuous basis” language in CAA 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 standard 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 operations may be subject to a different, but also 

continuously applied, limitation... [A]ll of these different standards together form a ‘continuous’ 

limitation.” Id. 

The West Virginia DEP disagreed with the EPA’s view that the SIP provisions at issue in this 

action do not impose a “continuous” limit on emissions because of other general duty 

requirements. The West Virginia DEP argued that its “emissions regulations satisfy this 

requirement” that an emission limitation apply on a continuous basis because “[t]he regulations 

obligate sources to minimize their emissions during SSM events to the greatest extent consistent 

with safety and good air pollution control practices.” Id. at 5. 

Response: 

The EPA agrees with the West Virginia DEP that the CAA does not require that an emission 

limitation apply the same exact limit (whether expressed numerically or otherwise) at all times to 

all sources in all circumstances in order for that 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 directs readers to 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 technologies or work practices applicable during other modes of 

operation.” 
Response to Comments – SSM 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 require sources to minimize emissions 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 source on a continuous basis at all times. The EPA 

believes this topic is adequately addressed 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 engineering 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.” 

Comment: 

The West Virginia DEP was among other commenters generally stating that SIPs have been and 

continue to be actively enforced, particularly in citizen suits, and disagreed that the EPA and 

citizen enforcement is hindered by SSM provisions. 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 Virginia because of any SSM provision in any state 

rule.” Comment 0614 at 4. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.22, “Comments that the EPA’s position that SIP provisions such as 

automatic exemptions for excess emissions during SSM events hinder effective enforcement for 

violations is incorrect, because 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 particular, the West Virginia DEP alleges that the 

“EPA is most certainly changing its SSM policy,” but “has offered no rational basis for its 

change.” Comment 0614 at 10.The West Virginia DEP believes this is a violation of the APA 

because that statute requires the EPA “acknowledge 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 addressed 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

20 

Comment: 

The West Virginia DEP was among 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 record-based rational explanation are required for 

agency action” under the APA because the APA requires that “an agency must show that it has 

examined the relevant data and articulated a satisfactory explanation for its action.” 

Comment 0614 at 9 (internal quotation deleted). According to the commenter, because the “EPA 

has made no effort to make any factual findings regarding actual SSM emissions in West 

Virginia and whether such emissions exceed or contribute to an exceedance of the NAAQS,” the 

proposed rule is “arbitrary, capricious, 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 detail in the February 2013 proposal, the SNPR and the 

notice of final action, the EPA does not interpret the CAA to require proof that the SIP 

provisions at issue caused a specific 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 requirements 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 call,” 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 available 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 “EPA has fallen short of 

satisfying its prerequisite obligations to issue a SIP call.” Id. 

Response: 

The EPA believes this topic is adequately addressed 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.” 
Response to Comments – SSM 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 the most recent NAAQS.” Comment 0614 at 2. The 

West Virginia DEP alleges that these facts “directly 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 points 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 addressed in the notice of final action and directs 

readers to section VIII.D.17, “Comments that 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” 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 West Virginia DEP claimed the proposed rulemaking 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 arbitrary if it is inconsistent with 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 contradicts EPA’s own emissions regulations.” 

Comment 0614 at 10. In particular, the West Virginia DEP claimed that several EPA regulations 

for New Source Performance Standards (NSPS) and 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 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.” 

Comment: 

The West Virginia DEP commented that, particularly in this case “where the CAA mandates a 

cooperative regime,” the EPA should not declare the 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 provisions within the rules themselves; provisions 

in other state rules (including federal provisions which the state has incorporated by reference); 

provisions contained in federally enforceable permits; EPA oversight of West Virginia’s Air 
Response to Comments – SSM 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 the EPA has misunderstood the purpose and effect of 

the regulations identified in the February 2013 proposal as containing exemptions of emissions 

during SSM events, unbounded director discretion, and alternative emission limits for SSM 

events which do not comply with the CAA and the 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 accord 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 alternative emission limits applicable to SSM 

events which are not in accord with the CAA as interpreted in the EPA’s SSM Policy. 

While the West Virginia SIP may contain additional emission limits, these additional measures 

do not cure the deficiencies the EPA has identified with the specific West Virginia regulations 

addressed in this action. Enforcement 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 emission 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 given source, but do not restore the EPA’s ability 

to enforce for violations due to excess emissions otherwise exempted or provide any further 

restrictions on alternative emission limits such that those limits would then comport with the 

CAA as interpreted in the EPA’s SSM Policy. The EPA believes the West Virginia requirements 

identified in the February 2013 proposal 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 evaluate 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 state’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 interpretation 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 automatic exemptions of excess emission events. 

However, the EPA does not believe we are interpreting the West Virginia regulations in a 

manner different from how the state interprets them. The West Virginia regulations identified in 

the February 2013 proposal clearly on their face provide exemptions for excess emissions during 

SSM events and preclude them from being treated as violations or provide inappropriate 

alternative emission limits applicable to SSM events. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

23 

Comment: 

The West Virginia DEP stated that the EPA has 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 context, both within the specific state rules and 

when considered within the state’s holistic, integrated 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 emissions constitute a violation” because “[i]n 

many cases, a state official’s discretion to exercise his or her enforcement authority is 

constrained by a variety of factors.” Id. at 12. 

Response: 

The EPA disagrees that the West Virginia SIP provisions addressed in this action do not warrant 

a SIP call. As explained in the February 2013 proposal, portions of West Virginia’s regulations 

are impermissible and not in accordance with the CAA. 

The EPA also disagrees that we examined the West Virginia regulations out of context or that we 

failed to examine other provisions within the West Virginia SIP. As discussed in greater detail in 

the February 2013 proposal, West Virginia’s provisions allow for automatic 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 provisions allow for exemptions from otherwise 

applicable SIP emission limitations, 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 inclusion of the following provisions, 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 and substantially inadequate. These provisions 

create ad hoc exemptions by allowing state officials to determine if excess emissions during 

startup, shutdown, load change, or emergencies are violations of the applicable emissions 

limitations, therefore allowing discretionary 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 state officials unbounded discretion to establish alternative limits, 

or to create an outright exemption from the otherwise applicable SIP emission limitation. The 

aforementioned SIP provisions all clearly provide 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 use unbounded discretion to set emission limits or no 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

24 

emission limits during times of startup, shutdown, and malfunction, because as articulated in the 

February 2013 proposal, “...these provisions purport to make a state official the unilateral 

arbiter of whether the excess emissions in a given malfunction, maintenance, or emergency event 

constitute a violation.” Were the state to exercise its discretion and decide on a case-by-case 

basis that such an event was not a violation of the emission limitations without any requirements 

for further public process at the state or federal level, the EPA and citizens could be precluded 

from enforcement. 

The EPA disagrees with West Virginia that measures such as requirements that excess emissions 

not endanger the public health or safety or that malfunctions be unavoidable are cures for the 

inappropriate director’s discretion in West Virginia’s regulations identified in the February 

2013 proposal. The EPA believes that the provisions at issue allow for unbounded director’s 

discretion, authorizing the state official to judge that violations have not occurred even though 

the emissions exceeded the applicable SIP emission limitations. These director’s discretion 

provisions therefore vest the state official with unilateral power to grant exemptions without 

additional public process at the state or federal level. Excess emissions above the level of the 

applicable SIP emission limitation must be considered violations, whether 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 provisions are “substantially inadequate,” as required 

by CAA section 110(k)(5). 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.20, “Comments that the EPA has failed to show state SIPs are 

substantially inadequate, as is required to promulgate a SIP call.”

3. Comment of West Virginia Office of the Attorney General (1090) 

Comment: 

The Attorney General of West Virginia was among 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 addressed in the notice of final action and directs 

readers to section IV.D.20, “Comments that the EPA has failed to show state SIPs are 

substantially inadequate, as is required to promulgate a SIP call.” 
Response to Comments – SSM 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 Administrative Procedures Act. 

Response: 

The EPA believes this topic is adequately addressed 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 and shutdown provisions in the SIP are not 

unbounded. ADEM noted that, in order to take advantage of these provisions, an applicant must 

meet many requirements, including providing information to ADEM that shows why emission 

standards cannot be met and writing specific conditions 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, including during startup and shutdown, and the permits 

are subject to comment by the EPA and the public. 

ADEM also stated that, under Alabama’s “emergency” SIP provision, the 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 source 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 limitations, whether automatic or through the 

exercise of a state official’s discretion. In accordance with the requirements of CAA 

section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the 

definition of ‘emission limitations’ in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission limitations 

must be considered violations, whether or not the state elects to exercise its enforcement 

discretion.” 78 FR 12501. 
Response to Comments – SSM 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 given event was an ‘emergency’ and thus to create an 

exemption from the otherwise applicable emission limitations. In this case, the provision does 

contain some 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 determination 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 from emission standards, even during startup and 

shutdown events, states must utilize other approaches for addressing excess emission events. For 

example, states may exercise enforcement discretion based upon the available 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 others 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 take is to develop alternative emission limitations to apply 

during startup and shutdown events as part of a continuous emission limitation. These 

alternative limits may take the form of reasonable alternative numerical limits, specific 

technological controls, or work practice standards that incorporate specific practices 

demonstrated to reduce emissions to the maximum extent possible during startup and shutdown 

periods. So long as the alternative limits that apply during startup and shutdown are 

appropriately stringent for the type of SIP emission limitation at issue, and are legally and 

practically enforceable, the state 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 the issue. Writing exemptions into operating 

permits for excess emissions during startup and shutdown does not override the CAA 

requirement that SIP emission limitations must be continuous. In addition, the general duty 

clause requiring the minimization of emissions at all times mentioned by ADEM as a justification 

for providing exemptions in emission limitations is not included in the Alabama SIP. 

Furthermore, even if the general duty clause was 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 minimum stringency requirements and is sufficiently enforceable. 

Regarding the commenter’s assertion that there 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 identify as an objectionable 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 caused 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 exceedance 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

27 

could not have been reasonably avoided. Courts have determined, however, that the EPA does 

not have authority to provide in federal rules or to approve in state rules exemptions from 

emission limitations. The EPA anticipates that states will exercise enforcement discretion as 

ADEM indicates that it has historically done. In addition, a state may elect to revise existing 

state rules in SIP provisions, if necessary, to accommodate circumstances where it is not 

possible for a source to meet the generally applicable emissions limit. So long as the revised 

provisions meet CAA requirements, a state may elect to replace 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 SIP is substantially inadequate to meet the 

NAAQS. 

Response: 

The EPA believes this topic is adequately 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.” 

Comment: 

ADEM stated that Congress defined “emission limitation,” “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 standards. According to ADEM, the Congressional record makes 

clear that these definitions were written to require the continuous use of control devices. ADEM 

argued that the EPA has improperly expanded this term in its proposed action to preclude the 

exemption of any exceedance in situations where control of SSM emissions is impossible or 

impractical. 

Response: 

The EPA believes this topic is 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 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 application of CAA requirements. 

Response: 

The EPA believes these topics 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 
Response to Comments – SSM 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, “Comments that the EPA’s proposed action on the 

Petition is incorrect because the Agency’s recent Mercury and Air Toxics Standards (MATS) 

rule and Area Source Boiler rule regulations contain exemptions for emissions during SSM 

events.” 

Comment: 

ADEM alleged that the EPA’s proposed action violates the principles of the federal state 

partnership. Through this action, ADEM believes that the EPA is removing states’ ability to use 

discretion and judgment. 

Response: 

The EPA believes this topic is adequately addressed 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 regulations describing SIP requirements before 

issuing a SIP call. 

Response: 

The EPA believes this 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 forbid SSM exemptions in SIP provisions if the CAA precludes them.” 

Comment: 

ADEM stated that the EPA should allow states longer than 18 months to respond to the SIP call 

because it is not sufficient time for states to change 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 procedures. ADEM believes that 5 years is more appropriate. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.24, “Comments that the EPA should provide more than 18 months for 

the SIP call because the state law administrative process can take longer than that.” 

Comment: 

ADEM argued that the EPA failed to calculate the costs associated with this action appropriately. 

ADEM believes that the EPA inappropriately considered only the administrative costs to 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

29 

regulatory agencies for this rulemaking action, instead of also including an estimate of costs to 

regulated sources. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section V.D.7, “Comments that the 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. ADMIN. 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 therefore “inconsistent with the fundamental 

requirements of the CAA.” 

Response: 

The EPA believes this topic is adequately addressed 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 alleged that the EPA’s rulemaking action violates the federalstate partnership Congress chose for implementing the CAA. The commenter asserted that states 

are given the “primary responsibility” for determining how to achieve the NAAQS and how to 

regulate sources within their own borders, and that, through this SIP call, the EPA is substituting 

its policy preferences for the states’. The Alabama Attorney General argued that if the EPA is 

permitted to use changed legal interpretations to justify 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 addressed 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 NAAQS. The commenter noted that Alabama is 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

30 

attaining and maintaining the NAAQS and air emissions have been in decline since the 1990s. 

The Alabama Attorney General alleged 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 not establish a causal 

connection between SSM exemptions and an adverse effect on attainment or maintenance of the 

NAAQS is wrong. The Alabama Attorney General alleged that in this case, the EPA has failed to 

make the requisite finding to show that the SIP provisions at issue are so substantially inadequate 

that the state cannot attain or maintain the 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 means that the EPA has admitted that the Alabama 

SIP is sufficient to achieve the NAAQS and is fully approved and enforceable. 

Response: 

The EPA believes these topics are adequately 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.15, “Comments that the 

EPA’s redesignation and approval of a maintenance plan for an area in a state with a SIP that 

has provisions at issue in the SIP call establishes that all provisions in the SIP meet CAA 

requirements.” 

Comment: 

The Alabama Attorney General stated that Alabama has determined that sources should not be 

penalized for unavoidable emissions and thus adopted 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 the EPA’s proposed rule ignores this reasonable 

and practical approach. 

Response: 

The EPA agrees that states may exercise enforcement discretion for excess 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 state enforcement discretion preferences upon the 

EPA and other citizen suit parties. 

The EPA believes this topic is adequately 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 

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 the EPA’s proposal fails to account for control 

measures other than numerical emission limitations that states have included in their SIPs to 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

31 

govern emissions during periods of SSM. The Alabama Attorney General pointed to portions of 

Alabama’s SIP that require sources generally to minimize emissions and otherwise follow good 

operating practices during startup, shutdown or load change periods. The Alabama Attorney 

General also cited ALA. ADMIN. CODE r. 335-3-14-.03(1)(h)(2)((ii)(III), which 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 emissions that exceeded the standards, or other 

requirements of the permit” in order to qualify 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 imply that a numeric emission 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 numeric emission limitations may be sufficient to satisfy the CAA’s 

requirement that emission limitations be “continuous,” the EPA disagrees with the commenter’s 

contention that permit conditions and regulatory provisions directing sources to minimize 

emissions and otherwise follow good operating practices during SSM serve as an alternative 

“emission limitations” during SSM events, thereby justifying explicit exemptions from otherwise 

applicable emission limitations. First, to the extent such permit conditions are framed as criteria 

for determining whether an exemption from emission limitations applies, rather than as parts of 

an independently enforceable emission limitation, these permit conditions would not themselves 

qualify as “emission limitations.” Second, with respect to the comment that “permits that allow 

for SSM exemptions also have a duty to minimize emissions and otherwise follow good operating 

practices during startup, shutdown or load change periods,” while the addition of such 

requirements to a source’s operating permit are useful, such permit conditions cannot be relied 

upon to remedy a SIP deficiency. For a SIP provision to satisfy the requirement that emission 

limitations be “continuous,” any alternative limitation 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 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 requirement purporting to limit emissions. See, e.g., CAA section 110(a)(2)(A), 

(C). 

Likewise, the EPA disagrees with the commenter’s assertion that ALA. ADMIN. CODE r. 335-3-

14-.03(1)(h)(2)(ii)(III), which the commenter cites and which is also 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 provision in context reveals that it is merely a 

component to an exemption from the emission limitation, 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 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 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

32 

broader section of Alabama’s regulations called, “Exceptions to violations of emission 

limitations.” 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 directly 

enforceable against a source. Rather, this regulation sets forth the criteria to be applied in 

determining whether “[e]xceedances of emission limitations during 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 the source is exempted from the directly enforceable requirement. Sources 

that do not comply with the general duty clause are merely ineligible for the exemption, and 

would thus liable for violating the underlying emission limitation. For a work practice to qualify 

as an enforceable emission limitation, 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 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 a 

directly enforceable requirement, 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 prevent 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 discretion decisions by a state. 

For further discussion of this topic, 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 ‘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.” 

Comment: 

The Alabama Attorney General alleged that the EPA’s proposed rulemaking action with an 

inappropriately short public comment period is a product of inappropriate “sue and settle 

rulemaking strategy.” The Alabama Attorney General believes that this “closed-door 

policymaking bypasses the traditional rulemaking concepts of transparency and effective public 

participation in order to forward the agenda of environmental citizen groups.” 

Response: 

The EPA believes this topic is adequately addressed 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 rulemaking action appropriately. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

33 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section V.D.7, “Comments that the 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 addressed 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.” 

3. Comment of parties other than the state on the Alabama SIP 

Comment: 

Some commenters noted that the ADEM procedures for SSM have been in force for over 

20 years and there have been no instances where 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 enforcement action. Unless a state’s exercise of 

enforcement discretion rises to the level of a failure to implement 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 that 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 this action. Rather, it highlights the fundamental 

enforcement problem created by such automatic 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 action, these types of exemptions are impermissible 

under the Act and the EPA’s interpretation of the CAA in the SSM Policy. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

34 

Comment: 

Some commenters stated that the Alabama SIP provisions the EPA identified as deficient in the 

February 2013 proposal are in fact in compliance 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 without application of appropriate “emission 

limitations” within the meaning of CAA section 302(k). The commenters noted that non-numeric 

“emission limitations,” such as obligations to minimize excess emissions, maintain equipment 

properly, take immediate corrective action, and monitor and report the circumstances of every 

period of excess emissions, are applicable, enforceable, and enforced during all periods of 

operation. The premise of these comments is that explicit exemptions from 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 imply that a numeric emission limitation must apply 

during all periods of operation. On the contrary, and as discussed in the final rule, 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. A valid emission 

limitation may be comprised of numerical limits (that do not have to be the same numerical limit 

during all modes of source operation), specific technological control requirements, or work 

practice requirements, so long as the resulting 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 numeric emission limitations may be sufficient to satisfy the CAA’s 

requirement that emission limitations be “continuous,” the EPA disagrees with the commenter’s 

contention that “Alabama’s SIP package of controls, 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 merely a component to an exemption from the emission limitation during 

emergencies, 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 

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 section 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 applied in determining whether “[e]xceedances of emission limitations 

during emergencies ... at a facility may be exempted as being violations.” ALA. ADMIN. CODE 
Response to Comments – SSM 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. Sources that do not comply with the general duty 

clause are merely ineligible for the exemption, and would thus be potentially liable for violating 

the underlying emission limitation. For a work practice to qualify as an enforceable emission 

limitation, 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 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) providing that “[t]he 

Director shall be the sole determiner of whether 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 provisions cannot operate to bar enforcement by the 

EPA and citizen suit plaintiffs, based upon such unilateral enforcement discretion decisions by a 

state. 

The EPA also disagrees with the commenter’s suggestion that the deficiencies in Alabama’s SIP 

provisions identified in this SIP call are remedied by permit conditions that purportedly establish 

enforceable emission limitations applicable during 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 criteria for determining whether an 

exemption from emission limitations 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 cannot 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 specified 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 “requirement” 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 during periods of startup and 

shutdown as part of a valid continuously 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 standards4

 for minimizing emissions such as following manufacturer’s 

recommended procedures for minimizing startup and shutdown periods, tuning, maintaining and 

inspecting burners and associated combustion controls, keeping records of activity and 

measurements, using either natural gas or distillate oil for ignition during startup, and operating 

all control devices necessary to meet the normal operating standards. Such requirements, 

designed with consideration of the specific source type, can be an effective 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

36 

emissions during SSM periods, while also imposing clear requirements that are legally and 

functionally enforceable. 

Comment: 

Some commenters stated that the historical evidence directly contradicts the EPA’s claim that its 

initial approval of many SSM provisions in the 1970s was “inadvertent” or the product of a lack 

of resources and experience. One commenter noted that in Alabama, for example, the SSM 

provision in Alabama’s SIP, Ala. Admin. Code r. 335-3-14-.03(1)(h)(1), was approved in 1972 

as part of Alabama’s original SIP. The commenter 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 call proposal notice that its initial approval of SSM provisions in 

the 1970s was “inadvertent” or “accidental.” Rather, 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 adequacy, enforceability, and consistency 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) was 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 submissions sometimes lacked adequate review. 

On December 20, 1993, Alabama submitted a revision that 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 into the existing permitting requirements of the 

state’s SIP, including the addition of a new synthetic minor operating permitting program 

(chapter 15) compatible with the state’s title V operating permit program (chapter 16). In 

approving the new chapter 15, the EPA also approved 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 Ala. Admin. Code r. 335-3-14-.03(1)(h)(2) (the 

“emergency provision”) (again, these are Alabama provisions included in this SSM SIP call). In 

October 1994, the EPA approved the state’s December 20, 1993, submittal in its entirety, except 

for chapter 16 (the major source operating permits program), into the Alabama SIP. See 59 
Response to Comments – SSM 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 way. 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 subparagraph 335-3-14-.03(1)(h) merely 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 the addition of provisions to 

Alabama’s general “Air Permits” chapter that were very similar to Ala. Admin. Code r. 335-3-

16-.11(2), which is the “Emergency provision” of the state’s title V operating 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 program7

and failed to identify concerns regarding its use in state SIPs. However, as discussed in the 

[proposed/final] SIP call, some states have presumably intended to create affirmative defense 

provisions applicable for their SIPs, but by using the terminology of the operating permit 

regulations, they have created provisions that are not permissible 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 provision, 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 Alabama’s visible emissions 

provision should not be interpreted as justification for the Director’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 remedies specifically sought by petitioners, which did 

not include Ala. Admin. Code r. 335-3-4.01. Thus, the 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 August 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 the 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

38 

Finally, the EPA notes that the precise circumstances surrounding the original approval of the 

deficient provisions are not outcome determinative with respect to the legal validity of the 

deficient provisions of the Alabama SIP at this point in time. Section 110(k)(5) explicitly 

provides that “whenever” the EPA determines that an existing SIP provision is deficient, 

including because it is not consistent with CAA 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 the 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 Alabama permits that allow for SSM exemptions also have a duty 

to minimize emissions and otherwise follow good operating practices during startup, shutdown 

or load change periods. 

Response: 

With regard to the comment that Alabama and other southeastern states already have 

requirements to minimize emissions during SSM, the EPA disagrees with the commenters that 

such requirements are sufficient to qualify as an alternative “emission limitation” applicable to 

SSM events. First, those operating standards that are framed as criteria for obtaining an 

exemption from an emission limitation, rather than as independently enforceable parts of an 

emission limitation, and thus do not themselves qualify as “emission limitations.” Even if these 

general requirements were parts of an emission limitation, which they are not, the EPA would 

have independent concerns about whether the resulting 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 Department 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 judgment for Florida’s, 

which is counter to the system established by the CAA. According to Florida DEP, the Supreme 

Court has recognized that the EPA has a secondary role under the CAA. 

Response: 

The EPA believes this topic is adequately addressed 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

39 

Comment: 

Florida DEP argued that the EPA failed to consider 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 has included SSM provisions. 

Response: 

The EPA believes these topics are adequately addressed 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 SIP call,” and section VIII.D.17, “Comments that 

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: 

Florida DEP stated that the EPA approved Florida’s SSM rule in 1982 and has since reapproved 

it numerous times through infrastructure SIP approvals 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 addressed in the notice of final action and directs 

readers to section VIII.D.18, “Comments that the EPA’s initial approval of these deficient 

provisions, or subsequent indirect approval of them through action on other SIP submissions, 

establishes that these provisions 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, the 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 prevented during startup, shutdown, or malfunction 

Further, Florida DEP alleged that Florida’s SIP provisions are not a variance from “otherwise 

applicable emissions limitations,” but rather an alternative limitation that sources may invoke 

only under certain circumstances (i.e., during startup, shutdown, malfunction, or other nonnormal operations—soot blowing and load changing) and only by undertaking specific, 

enforceable measures (i.e., best operational practices, limiting duration, complying with 

alternative emission limitations). 

Florida DEP also noted its SIP provisions only apply to specific, narrowly defined source 

categories and activities. Florida DEP stated that although subsection (1) applies to “any 
Response to Comments – SSM 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 emissions,” not to exceed two hours in any 24-hour 

period); best operational practices are source-category specific. Further, FDEP argued that the 

EPA’s alleged requirement for “specific, narrowly-defined source categories using specific 

control strategies” is not found in the CAA, but rather is a single recommendation in the EPA 

guidance. 

Florida DEP also stated that the EPA acknowledged that its SIP provisions 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, which 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 provision 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 alternative “emission limitations” during SSM events 

sufficient to make other SIP emission limitations “continuous” 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 are independently enforceable against a source. 

Rather, these provisions establish the criteria that apply in determining whether “excess 

emissions” (i.e., emissions above otherwise applicable emission limits”) are permitted. The 

criteria themselves are not enforceable. For a work practice to qualify as an enforceable 

emission limitation, it must, at a minimum, be independently enforceable 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 ‘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 agrees with comments noting that portions of Section 62-210.700 are “narrowly 

tailored to a specific source category” (existing fossil fuel steam generators) and refer to 

specific control strategies. At least in these respects, those portions of Section 62-210.700 satisfy 

some of the recommended criteria for an alternative 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 regulatory provisions do not qualify as enforceable 

emission limitations in their current form. 

Regarding the commenter’s reference to a statement in the EPA’s proposal explaining that 

Florida’s SSM provisions are “directly enforceable 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 concern that the cited provisions of the Florida 

Administrative Code “do not specify the procedure by which the factual premises [giving rise to 
Response to Comments – SSM 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 criteria 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, 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 

violation of the generally applicable emission limitation. The fact that the existing 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 eliminate the underlying deficiency that the Florida 

SIP impermissibly exempts sources from otherwise applicable emission limitations under certain 

circumstances. 

2. Comment of parties other than the state on the Florida SIP 

Comment: 

Some commenters alleged that Florida’s SIP provisions at issue in this action impose operationand maintenance-based control requirements, including by prohibiting the application of 

emissions exemptions in cases where excess emissions are caused “entirely or in part by poor 

maintenance, poor operation, or any other equipment or process failure which may reasonably be 

prevented during startup, shutdown, or malfunction.” The commenters also noted that the SIP 

provisions also require that facilities use “best operational practices to minimize emissions” and 

require that “the duration of excess emissions be minimized.” 

According to commenters, the EPA acknowledged that Section 62-210.700(4), F.A.C. “reduces 

the potential scope” of the excess 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 EPA’s proposed SIP call is invalid. 

Response: 

The EPA has neither stated nor intended to imply that a numeric emission 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 technologies or work 

practices applicable during other 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 – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

42 

While limitations other than numeric emission limitations may be sufficient to satisfy the CAA’s 

requirement that emission limitations be “continuous,” the EPA disagrees with the commenter’s 

contention that F.A.C. section 62-210.700(4) serves 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 enforceable against a source. Rather, it establishes the criteria 

that apply in determining whether “excess emissions” (i.e., emissions above otherwise 

applicable emission limits) are permitted. The criteria themselves are not enforceable. For a 

work practice to qualify as an enforceable emission limitation, it must, at a minimum, be 

independently enforceable against the source. 

Finally, the EPA disagrees that its acknowledgment that the Florida 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 with CAA requirements. Had the EPA 

believed that the limitations were sufficient, it would not have proposed to find the provisions 

substantially inadequate and to issue a SIP call. 

Comment: 

Some commenters alleged that the EPA’s proposal notice contained directly contradictory 

statements about the Florida SIP provisions at issue. According to the commenters, in the 

proposal notice the EPA admits that Florida’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 characterized Florida’s excess emission provisions as 

“establish[ing] factual requirements that would need to be evaluated 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 established violations. The commenter alleged that Florida’s excess 

emission provisions are more properly 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 proposal 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 emission-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 addresses the Petitioner’s concern that the cited 

provisions of the Florida Administrative 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 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 pertains to the EPA’s proposed finding that these 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

43 

provisions do not 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 criteria 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, 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 violation of the generally applicable emission 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 the 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 criteria, however, does not eliminate the 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, providing that excess 

emissions “shall be permitted” under certain circumstances, constitute alternative emission 

limitations in any way. Again, a provision providing that excess emissions “shall be permitted” 

under certain circumstances is an exemption from compliance under such circumstances. In this 

context “permitted” means “legally allowed” and thus those emissions would be exempt for 

purposes of the otherwise applicable emissions limitation. As discussed above, a section 302(k)-

compliant alternative emission limitation for startup and shutdown events must, among other 

things, be independently enforceable and specifically included as part of the particular SIP 

emission limitation at issue. The Florida SIP provisions in question 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 Act’s requirements as interpreted in the EPA’s 

SSM Policy, because, for instance, they do not apply only to ‘specific narrowly-defined source 

categories using specific control strategies.’” 78 Fed. Reg. at 12503. The commenters stated that 

this merely represents one of the criteria “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 commenters further argued that the EPA’s focus on 

the “appearance” of Florida’s rules, fails to acknowledge that Florida’s provisions are in fact 

narrowly tailored. One commenter alleged that Florida’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 these provisions in 1982: “[i]n effect, the upset 

and startup rule revision recognizes the occurrence of unavoidable malfunctions and provides a 

definite control rule to deal with them.” 47 Fed. Reg. 3111 (Jan. 22, 1982). 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

44 

Response: 

The EPA disagrees with the commenter’s contention that Sections 62-210.700(1), (2), (3) and (4) 

F.A.C., serve as alternative “emission limitations” during SSM events. 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 are independently enforceable against a source. Rather, these provisions establish the 

criteria that apply in determining whether “excess emissions” (i.e., emissions above otherwise 

applicable emission limits”) are permitted. The criteria themselves are not enforceable. For a 

work practice to qualify as an enforceable emission limitation, it must, at a minimum, be 

independently enforceable against the source. 

The EPA agrees that portions of Section 62-210.700 are “narrowly tailored to a specific source 

category” (existing fossil fuel steam generators) and refer to specific control strategies. At least 

in these respects, those portions of Section 62-210.700 satisfy some of the recommended criteria 

for an alternative 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 regulatory provisions do not qualify as enforceable emission 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 the commenters, Florida’s rules require control 

measures to be implemented during SSM events and for at least three criteria to be met before 

excess emissions are allowed, including adherence to best operational practices. 

Response: 

Sections 62-210.700(1), (2), (3) and (4), F.A.C., provide exemptions from SIP emission 

limitations on the condition that the source complies with certain practices. Thus, regardless of 

any other provisions within these or other provisions of the state’s SIP, these provision do not 

comply with the requirements of the CAA because they provide for the possibility that 

noncompliance with applicable 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 enforceable. Rather, these provisions 

establish the criteria for determining whether a source is exempt from the otherwise applicable 

emission limitations. The criteria themselves cannot be enforced against a source. The only legal 

way for the numeric emission limits of the Florida SIP not to apply at any time is if the rules 

provide that some other enforceable limitation requiring the minimization of pollutant emissions 

applies during those times instead, i.e., the alternative limitation must be enforceable in its own 

right, not simply a criterion for determining whether excess emissions constitute a violation of 

the generally applicable emission limitation. In addition, for such alternative limitation to make 

the otherwise applicable emission limitation “continuous,” the alternative limitation must be 

included as part of that particular emission limitation. General work practice standards 

separately included elsewhere in the SIP cannot be relied upon to make a particular emission 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

45 

limitation with an explicit exemption for emissions during SSM events “continuous.” 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 ‘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.” 

c. Georgia 

1. Comment of the Georgia Environmental Protection Division 

(EPD) (0557) 

Comment: 

Georgia EPD commented that the EPA’s proposed rulemaking action fails to sufficiently 

describe and quantify the impacts of the EPA’s action on affected states and sources. If the EPA 

finalizes its SIP call, Georgia would 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 addressed in the notice of final action and directs 

readers to section V.D.7, “Comments that the 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 adequately evaluate the impacts of its rulemaking 

action on regulated sources. Georgia EPD believes that changing longstanding SIP provisions 

alters the basis on which sources determined they could construct and operate. Some sources are 

not capable of meeting emission limitations due to technology limitations. 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section VIII.D.28, “Comments that directing 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 technical matter sources cannot meet emission 

limitations (or cannot be accurately monitored) during startup and shutdown.” 

Comment: 

Georgia EPD noted that the EPA failed to analyze 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 emissions during SSM events for major sources in 
Response to Comments – SSM 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 sources have low quantities of excess emissions 

during startup and shutdown. 

Response: 

The EPA has concluded that exemptions from SIP 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 emissions from sources in Georgia does not change 

this aspect of CAA requirements. 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 because it is required to ‘quantify’ the magnitude of any alleged SIP 

deficiency in order to establish that it is substantial.” 

Comment: 

Georgia EPD alleged that the EPA’s proposed action fails to consider that 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 Georgia EPD, the EPA acknowledged 

this issue in its own NSPS. 40 CFR 60.8(c). Georgia EPD believes that this directly conflicts 

with the EPA’s statement that startup and shutdown periods constitute normal operations. 

Response: 

The EPA believes this topic is adequately addressed 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.” 

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 Georgia has chosen to do so with the numerical 

emission limits and standards in Georgia Rule 391-3-1-.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 addressed 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 engineering judgment,’ to ‘minimize 

emissions’ or to ‘not cause a violation of the NAAQS’ —inoculate or make up for exemptions in 

the specific emission limitations that apply to the source.” 
Response to Comments – SSM 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 EPD 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 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 Georgia EPD also stated that the Georgia SIP limits emissions from sources using a 

combination of numerical emission limits in Georgia 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, and 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 practice for minimizing emissions. 

Response: 

The EPA believes this topic is adequately addressed 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 engineering 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 Georgia’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 stringency and enforceability. 

Comment: 

Georgia EPD alleged that the EPA’s interpretation of “emission limitation” under CAA 

section 302(k) is incorrect. The commenter claimed 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 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 must apply continuously.” 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

48 

Comment: 

Georgia EPD alleged that the EPA’s proposed action is arbitrary and capricious because it holds 

SIP provisions to a different standard than the EPA’s own emission limitations developed under 

the NSPS and NESHAP programs. See 40 CFR Part 63, Subpart JJJJJJ. 

Response: 

The EPA believes this topic is adequately addressed 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 rule and Area Source Boiler rule regulations 

contain exemptions for emissions 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 comments 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 addressed in the notice of final action and directs 

readers to section IV.D.42, “Comments that the EPA should not consider the comments on the 

February 2013 proposal concerning affirmative defense provisions in SIPs to no longer be 

relevant.” 

Comment: 

The Georgia EPD was among commenters who generally 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 malfunction events, and that therefore the EPA had 

inappropriately determined that Georgia’s SIP is not in full compliance with the CAA. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.22, “Comments 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 that Georgia EPD is claiming in their comment 

letter that the Georgia SIP contains provisions establishing appropriate alternative emission 

limits that apply during malfunction events, the Georgia 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 – SSM 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 litigation regarding Georgia Rule 391-3-1-.02(2)(a)(7) 

was resolved on appeal to the 11th Circuit, which decided that the SIP provision does not create 

an “automatic exemption,” but rather provides an “affirmative defense.” The commenters 

asserted that the appellate court’s ruling resolved any ambiguity 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 Petition with respect to this SIP 

provision. In particular, the EPA noted that the evident 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 the EPA’s interpretation of the CAA. Regardless of 

whether Georgia Rule 391-3-1-.02(2)(a)(7) is now interpreted as an exemption or as an 

affirmative defense, the EPA has concluded that neither 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 decision indicates that states, like the EPA, have no authority in 

SIP provisions to alter the jurisdiction of federal courts to assess penalties for violations of CAA 

requirements through affirmative defense provisions. If states lack authority under the CAA to 

alter the jurisdiction of the federal courts through 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 provisions provide an example of how a combination 

of numeric emission limits and work practice standards can work together to establish a 

continuous emission limitation. The commenter specifically stated that the SSM exemption 

provided in Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is only available 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 excess 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 other equipment or process failure which may 

reasonably be prevented during startup, shutdown or malfunction are prohibited and are 

violations.” The commenter also cited to subparagraph (a)(10), which imposes a general duty on 

all sources to minimize emissions at all times. The commenter argued that “the combination of 

numeric emission limits, the general duty to minimize emissions, and the conditions imposed by 

the Georgia SIP ensures that sources are continuously subject to an emission limitation at all 

times.” 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

50 

The commenter alleged that these 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 “continuous” SIP emission can be comprised of a 

combination of numerical limits, specific control requirements, and work practices, so long as 

the resulting emission limitation meets applicable CAA requirements 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 utilizing a “combination of numeric limits and work 

practice standards can ensure continuous emission limitation at a source.” The EPA believes 

this topic is adequately addressed 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 engineering 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 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, Georgia Rule 391-3-1-.02(2)(a)10 could not in its 

current form qualify as an alternative emission limitation for startup, shutdown and malfunction 

sufficient to make the otherwise applicable emission 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 appropriate separate requirement to impose upon sources under 

Georgia’s SIP in addition to the (continuous) emission limitations, the existence of this general 

provision would not legitimize exempting excess emissions during SSM events from the otherwise 

applicable SIP emission limitations. 

Furthermore, the EPA disagrees with the commenter’s assertion that similarities between the 

EPA’s recently adopted MATS and Boiler MACT regulations and Georgia’s SSM provisions are 

such that the EPA must find Georgia’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 limitations and work practices. The work practice 

requirements specifically apply to sources during startup and shutdown and are thus components 

of the continuously applicable emission limitations. The EPA believes this topic is adequately 

addressed in the notice of final action and directs readers to section IV.D.15, “Comments that 

the EPA is being inconsistent because rules promulgated by the EPA provide affirmative defense 

provisions for malfunction events.” 

Comment: 

One commenter argued that the affirmative defense provision in Georgia’s SIP does not assume 

that excess emissions during SSM periods are violations, but rather the provision establishes 

criteria for determining whether those excess emissions are a violation. The commenter believes 

that the Georgia SIP allows the “determination of a ‘violation’ to be made on a case-by-case 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

51 

basis.” The commenter alleged that this means Georgia’s SIP provisions comply with CAA 

section 302(k). 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.18, “Comments that emissions 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 that the EPA acknowledges in the proposal that 

401 KAR 50:055, Section 1(1) does not eliminate enforcement authority of the EPA or citizens; 

instead, in the EPA's opinion, 401 KAR 50:055, Section 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 previously 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 sections 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 interpret 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 sufficiently ambiguous on this point to render the SIP substantially 

inadequate to satisfy CAA requirements governing SIP emission limitations in 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). Specifically, 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 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 

owner or operator of the source” that certain conditions are met. The EPA concludes that these 

provisions are ambiguous regarding whether the director’s determination that a source meets 

the regulatory criteria would bar enforcement by the EPA or through a citizen suit and that a 

revision is necessary to eliminate this significant ambiguity. As explained in the notice of final 

action, SIPs may not provide that air pollutant emissions above the applicable limit are not 

considered violations and may not excuse sources from compliance. While the EPA agrees that 

the state has authority to exercise its own enforcement 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 – SSM 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 February 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 prohibit exemptions for excess emissions 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 addressed in the notice of final action and directs 

readers to section VIII.D.18, “Comments that the EPA’s initial approval of these deficient 

provisions, or subsequent indirect approval of them through action on other SIP submissions, 

establishes that these provisions meet CAA requirements.” 

Comment: 

The Kentucky Division for Air Quality commented that this SIP call may require the Division to 

amend many SIP provisions and promulgate unit and source-specific startup and shutdown 

provisions to address every possible case of excess emissions due to shut down and malfunction 

events. The Division expressed concern regarding potential “unintended consequences” of this 

action. 

Response: 

The EPA believes these topics are adequately addressed 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 limitations that apply during startup and shutdown instead of existing 

exemptions” and section V.D.7, “Comments that the EPA was obligated to address and justify 

the potential costs of the action and failed to do so correctly.” 
Response to Comments – SSM 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 obligations established under the Act and therefore 

that a SIP call is inappropriate. 

Response: 

The EPA believes this topic is adequately 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.” 

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 enforcement discretion provision. According to the 

commenter, Section 1(1) refers to specific standards in Section 1(4), which lay out parameters 

for the exercise of discretion by the Director. 

The commenter further argued that the EPA is incorrect 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 showing 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 respect 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 concludes that this provision is sufficiently 

ambiguous on this point to render it insufficient to satisfy 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 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 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 owner or operator of the source” that certain 

conditions are met. The EPA concludes that these provisions are ambiguous regarding whether 

the director’s determination that a source meets the regulatory criteria would bar enforcement 

by the EPA or through a citizen suit and that a revision is necessary to eliminate this significant 

ambiguity. 
Response to Comments – SSM 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 level. Such procedures, 

however, would not eliminate the significant ambiguity in Kentucky’s regulations regarding 

whether the director’s determination that a source meets the regulatory 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 public in commenting on those decision, e.g., through a 

notice and comment rulemaking on a SIP revision revising 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. According 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 relevant portions of the 2011 Louisville Air Pollution Control 

District SIP submission referenced by commenter. See 79 FR 33101 (June 10, 2014). In that 

action, the EPA approved a revision to the Jefferson County portion of the Kentucky SIP to 

incorporate revisions to Jefferson County Regulation 1.07, “Emissions During Startups, 

Shutdowns, Malfunctions and Emergencies.” The revision modified all seven sections of the 

previous version of SIP Rule 1.07 for Jefferson County. These changes 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 Quality (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 the 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 deficiencies identified in this action. In addition, the 

EPA is providing comprehensive and up to date guidance to states concerning CAA 
Response to Comments – SSM 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 final 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 addressed in the notice of final action and directs 

readers to section VIII.D.24, “Comments that the EPA should provide more than 18 months for 

the SIP call because state law administrative process can take longer than that.” 

Comment: 

The MDEQ noted that it is in attainment for 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 provisions are deficient to protect the NAAQS. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.17, “Comments that 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: 

The MDEQ alleged that the EPA failed to consider Section APC-S-5, Section 7, which allows 

MDEQ to take actions to prevent NAAQS violations. 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 reductions by sources that are found to cause 

exceedances of the NAAQS does not eliminate the deficiencies in Mississippi’s SIP that are 

addressed by this SIP call. Section 110(k)(5) explicitly authorizes the EPA to make a finding that 

a SIP provision is substantially 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 believes this topic is adequately 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.” 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

56 

The EPA believes this topic is adequately addressed 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 Environmental Quality (MDEQ) was among commenters who 

generally stated that the EPA relied on an improper 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 addressed 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 because the court did not address the legality of 

affirmative defense provisions in SIPs.” 

Comment: 

MDEQ was among commenters that argued that affirmative 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 addressed in the notice of final action and directs 

readers to section IV.D.34, “Comments that affirmative defense provisions do not alter or 

eliminate federal court jurisdiction and therefore 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 containing affirmative defenses for malfunctions are “substantially 

inadequate,” as required by CAA section 110(k)(5). 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.20, “Comments that the EPA has failed to show state SIPs are 

substantially inadequate, as is required to promulgate a SIP call.” 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

57 

Comment: 

MDEQ was among commenters who stated that SIP provisions that provide affirmative defenses 

for periods of malfunction are needed to provide operational flexibility so facilities can respond 

to malfunctions in the best manner to minimize emissions. Further, MDEQ claimed that 

affirmative defense provisions for malfunctions are needed to protect sources from being subject 

to onerous fines for emissions that are not within the source’s control. MDEQ was among 

commenters who stated that the EPA failed in the SNPR notice to consider the feasibility of 

controlling emissions during malfunction periods. MDEQ asserted that the EPA’s position that 

all malfunction can be controlled is wrong and inconsistent with four decades of implementation 

of and compliance with the CAA. 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section IV.D.8, “Comments that affirmative defense provisions are needed or 

appropriate because sources cannot control malfunctions or the excess emissions that occur 

during them” and section IV.D. 35, “Comments that this action may increase the chance of 

catastrophic failure at facilities.” 

Comment: 

MDEQ was among commenters that claimed finalization 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 bright-line rule allowing for affirmative defense 

provisions in SIPs, there will be inconsistent rules 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 court, but MDEQ believes that without the clear 

regulatory framework provided by affirmative defense provisions, each court is likely to evaluate 

malfunction events differently. This, MDEQ claimed, will lead to inconsistent enforcement 

throughout the country. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.10, “Comments that the elimination of affirmative defense provisions 

will result in sources’ facing inconsistent treatment by courts or states when excess emissions 

are emitted during malfunction 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 industry in a difficult predicament because 
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58 

states and the regulated industry do not know the entire proposed regulatory action when 

commenting on the EPA’s proposal regarding affirmative defense provisions. 

Response: 

The EPA believes this topic is adequately addressed 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 issuing 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 proposal are part of an effective overall strategy in the state to 

achieve and maintain the NAAQS. NCDAQ believes that the EPA’s proposal focuses on only 

one part of a complex regulatory program, and this fails to meet the demonstration required 

under section 110(k)(5). 

Response: 

The EPA disagrees with the commenter on this issue. The premise of the comment is that 

individual SIP provisions do not have to meet fundamental requirements of the CAA, so long the 

deficient provisions are part of a larger “strategy” for attainment and maintenance of the 

NAAQS. The specific provisions at issue in this action are director’s discretion provisions that 

authorize state officials, in effect, to revise the otherwise applicable SIP emission limitations 

without meeting the statutory requirements 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 would preclude the ability of the 

EPA or other parties to seek to bring an enforcement 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 that the EPA did not prove that these deficient 

provisions have caused a specific NAAQS violation, the EPA believes these topics are 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,” 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.” 
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Comment: 

NCDAQ alleged that the EPA has improperly interpreted 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 limited 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 permissible under the CAA. NCDAQ noted that the EPA 

recognizes that not all numerical standards are achievable during all phases of a unit’s operation. 

Response: 

The EPA believes this topic is adequately addressed 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 limitations applicable during some modes of source operation or has a 

combination of numerical emission limitations and specific control technologies or work 

practices applicable during other modes of operation.” 

Comment: 

NCDAQ commented that the EPA is inappropriately proceeding with a SIP call without going 

through appropriate rulemaking procedures. NCDAQ believes that if the EPA wants to preclude 

SSM provisions from SIPs, the Agency should make 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 commenter argues that a SIP 

provision must contravene a specific regulatory provision in order to violate the statutory 

provisions of the CAA, the commenter is in error. The EPA believes this 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 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 addressed in the notice of final action and directs 

readers to section V.D.7, “Comments that the EPA was obligated to address and justify the 

potential costs of the action and failed to do so correctly.” 
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Comment: 

NCDAQ argued that North Carolina’s SIP provision 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 restricts 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 find that 15A N.C. Admin. Code 2D.0535(c) and 

15A N.C. Admin. Code 2D.0535(g) are substantially inadequate to meet CAA requirements and 

thus proposed to issue a SIP call with respect to these provisions. The EPA determined that the 

SIP provisions at issue authorize state officials to grant discretionary exemptions from 

compliance with otherwise applicable SIP emission limitations, and this authority would operate 

to preclude enforcement by the EPA or others pursuant to the citizen suit provision. NCDAQ has 

provided no arguments in its comments that the 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. Admin. Code 2D.0535(g) and finding that these 

provisions are substantially inadequate 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 addressed 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 proposal runs afoul of the federal/state partnership envisioned 

by Congress when it enacted the CAA. The EPA should give deference to state decisions on how 

to draft SIP provisions to best achieve air quality improvements. 

Response: 

The EPA believes this topic is adequately addressed 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.” 
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Comment: 

NCDAQ argued that North Carolina’s SIP, as a whole, is an effective tool to ensure that the 

NAAQS are attained and maintained in the state. NCDAQ believes that the EPA has failed to 

provide any analysis showing that the North Carolina SIP is substantially inadequate to meet the 

NAAQS or otherwise comply with CAA requirements. 

Response: 

The EPA believes this topic is adequately 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.” 

g. South Carolina 

1. Comment of the South Carolina Department of Health and 

Environmental Control (DHEC) (0533) 

Comment: 

The South Carolina DHEC commented that 18 months is an insufficient amount of time for 

South Carolina to revise its SIP provisions in response to the SIP call. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.24, “Comments that the EPA should provide more than 18 months for 

the SIP call because state law administrative process can take longer than that.” 

Comment: 

The South Carolina DHEC argued that the EPA’s proposed action contradicts 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 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.” 

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 the participation of the affected states. 
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Response: 

The EPA believes this topic is adequately addressed 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 deficiencies instead of using the 

SIP call action proposed in the SNPR. The South Carolina DHEC believes that the EPA and 

states should together work through the normal rulemaking processes and SIP revision process to 

correct whatever known deficiencies exist. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.41, “Comments that instead 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 supplemental proposal, the EPA cited a version of 

Regulation 61-62.1, Section II, which has since been revised by the Department. According to 

the South Carolina DHEC, the Department submitted a revised version of this SIP provision to 

the EPA for approval in 2007, but that SIP package 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 their 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 provision that the EPA proposed for SIP call in 

the SNPR would be cited as SC Regulation 61-62.1, Section II(L). The EPA understands that the 

processing of South Carolina’s October 1, 2007, SIP revision 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 provisions in South Carolina’s SIP that are addressed by this SIP 

call. The EPA commits to working closely with South Carolina to develop an approvable SIP 

revision that is consistent with the guidance articulated in the updated SSM Policy in this final 

action. 
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63 

h. Tennessee 

1. Comment of the Tennessee Department of Environment 

& Conservation (Tennessee DEC) (0547) 

Comment: 

The Tennessee Department of Environment & Conservation (Tennessee DEC) stated that it 

generally disagrees with the EPA’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 event to cause or significantly contribute to a 

NAAQS nonattainment event. 

Response: 

The EPA believes this topic is adequately 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.” 

Comment: 

The Tennessee DEC commented that the EPA’s proposal violates the principles 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 addressed 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 interpretation of the definition of “emission 

limitation” in section 302 is flawed. The Tennessee DEC stated that the EPA is applying this 

term out of context in requiring that a single standard apply to limit emissions on a continuous 

basis regardless of the mode of operation. 

Response: 

The EPA believes this topic is adequately addressed 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 limitations applicable during some modes of source operation or has a 

combination of numerical emission limitations and specific control technologies or work 

practices applicable during other modes of operation.” 
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Comment: 

The Tennessee DEC argued that, because opacity is not itself a “pollutant as defined in the 

CAA,” the EPA’s determination that emission limitations must apply continuously is 

inapplicable to opacity or visible emissions. 

Response: 

The EPA believes this topic is adequately 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 pollutant.” 

Comment: 

The Tennessee DEC disagreed with the EPA’s conclusion that the state’s SSM SIP provisions 

could be interpreted to limit enforcement actions by the EPA or citizens. 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 provisions do not allow unfettered action by the 

Department, but rather establish explicit procedures that the state must follow that are reflective 

or real world conditions and protect the NAAQS. 

Response: 

The EPA disagrees with commenter’s assertion that the cited Tenn. Comp. R. & Regs. at 1200-3-

20-.07(1) and (3), and 1200-3-5-.02(1), do not create ambiguity that could lead to a court 

interpretation that these rules would block a lawsuit by the EPA or members of the public 

following an “excusal” by the Technical Secretary. 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 applicability 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 applicable SIP emission limitations, 

the EPA concludes that Tennessee’s SIP is substantially inadequate to satisfy the requirements 

governing SIP emission limitations in CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For 

further discussion on this topic, readers may refer to VII.C.3.b, “Comments that director’s 

discretion provisions are an exercise of ‘enforcement discretion.’” 

Comment: 

The Tennessee DEC commented that the EPA is inappropriately reviewing rule 1200-3-5-.02(1) 

in isolation instead of viewing the provision within the context of the whole state SIP. The 

Tennessee DEC notes that the state SIP also includes rule 1200-3-20-.08(1), which prohibits an 
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65 

SSM event from causing or significantly contributing to an exceedance of the NAAQS. The 

Tennessee DEC also cites to rule 1200-03-20-.06(6), which similarly states that “[i]rrespective of 

the startup and shutdown exemptions..., no emission shall be allowed which can be proved by 

the Technical Secretary to cause or contribute to any violations of the” NAAQS. According to 

the Tennessee DEC, this rule is part of Tennessee state regulations and was submitted to the EPA 

for incorporation into the Tennessee SIP. 

Response: 

The EPA believes this topic is adequately addressed 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 engineering 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.” 

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 authority to Illinois EPA to use its discretion, upon a 

showing of adequate proof, to allow operation 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 provisions require that an 

owner/operator submit substantial information to Illinois EPA for review to determine whether 

the particular facility has met the rule’s burden 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 determination on a case-by-case 

basis.” 

Response: 

Regardless of how the Sierra Club characterizes 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 startup. See the EPA’s 

proposed rule at 78 FR 12459 at 12514. Furthermore, Il. Admin. Code tit. 35 § 201.261, Ill. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 can be read to create 

exemptions by authorizing a state official to determine in the permitting process that the excess 

emissions during startup and malfunction will not be considered violations of the applicable 

emission limitations. For further discussion on this topic, readers may refer 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 creates a permit program through which state officials 

grant sources variances or exemptions from otherwise applicable SIP provisions.” 

Comment: 

One commenter stated that the EPA Administrator has issued two Orders objecting to the SSM 

provisions in the title V operating permit for United States Steel Corporation’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 commenter stated that when USS-GCW applied for its title V 

operating permit in 1996, it included a collection of IEPA forms requesting permission to operate 

various emission units during malfunctions and during startup. The commenter argued that 

although the forms contained almost no information about the future circumstances surrounding 

the malfunctions and startup events that would result in excess emissions/violations, IEPA 

granted USS-GCW’s applications. The commenter noted that, although the EPA could not 

critique the legality of the Illinois SIP’s SSM provisions in the context of the title 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 Administrator’s objection, IEPA 

provided a convoluted explanation of the meaning of its SIP’s SSM provisions that is at odds 

with the provisions’ plain meaning and made no changes to the title 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 second objection, USS-GCW submitted additional 

paperwork that was extremely general in nature, including no case-by-case analysis of particular 

SSM events. According to the commenter, IEPA 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 necessarily general in nature, addressing ‘typical’ 

and worst-case malfunction or breakdown events.” The commenter state that, while IEPA offers 

some reasons why information provided in advance of an SSM event, particularly one involving 

a malfunction or breakdown, is difficult to predict, that difficulty does not mean that USS-GCW 

is entitled to advance permission to exceed emission 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 entitled 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 the additional “documentation” that 

USS-GCW ultimately provided was too general in nature to qualify for the advance permission 

contemplated by the (unlawful) Illinois SIP. The 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 circumstances of which are unknown and likely 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

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unknowable, is untenable and ultimately unlawful. The commenter stated that the SIP 

undermines the express requirements of the CAA 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 residents 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 proposed action with respect to the Illinois SIP. 

Response: 

The EPA appreciates the case study presented by the commenter to illustrate the difficulties 

associated with granting advance permission for excess emissions during startup and 

malfunction through the permitting process. As stated 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 Code tit. 35 § 201.265 that allow for exemptions 

from the otherwise applicable emission limitations 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 proposed 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 defense 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 exemptions 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 interpretative letter, is a permissible limited enforcement discretion provision. 

Response: 

To the extent that the commenter suggests that 326 IAC 1-6-4(a) establishes an acceptable 

affirmative defense provision, the EPA notes that, as discussed in the SNPR, affirmative defense 

provisions are not consistent with CAA requirements. 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 with 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 of 
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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 Michigan 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 Environmental Protection Agency (0532) 

Comment: 

The Ohio Environmental Protection Agency (“Ohio EPA”) was among commenters who argued 

that CAA section 110 provides states 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 addressed 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 supported the use of interpretive letters. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VI.D.1, “Comments that supported 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 alleged proposed change in policy in the SIP call is 

procedurally deficient, as only 36 states are involved in the proposed SIP call while the changed 

policy applies nationwide. 
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69 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section V.D.5, “Comments that the EPA did not provide a sufficiently 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 expressed concern that the EPA has not involved 

stakeholders in the process. 

Response: 

The EPA does not agree with the commenter’s suggestion that stakeholders have somehow not 

been provided opportunity to be involved in this process. The EPA has provided 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 SIP call and proposed policy change. 

There has been broad public and stakeholder discussion and discourse of the 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 generally 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 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.7, “Comments that the EPA 

failed to consider how excess emissions resulting from SSM exemptions would affect compliance 

with specific NAAQS, including NAAQS with different averaging periods 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. Further, the Ohio EPA argues that the director’s 

approval authority is restrained by the measures in the rule that must be evaluated before 

authorization is granted. 
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70 

Response: 

The EPA disagrees with this comment. Under OAC 3745-15-06(A)(3), a state official may be the 

unilateral arbiter of whether excess emissions during certain maintenance events constitute a 

violation, which is inconsistent with CAA requirements. The provision authorizes the state 

official to allow continued operation at sources 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 that 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 limitations. 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, ultimately 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 therefore not sufficiently bounded and extends to 

granting a complete exemption from applicable emission limitations. States have great discretion 

to devise SIP provisions, but they do not have discretion to create provisions that contradict 

fundamental legal requirements of the CAA. For further discussion 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 enforcement action against a facility for an exceedance 

of an emission limitation during a malfunction. Similarly, 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 rights are undermined by the current rule language. 

According to the Ohio EPA comment, a federal court found that the language in OAC 3745-15-

06 contains objective standards that are enforceable 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 are impermissible unbounded director’s discretion provisions 

that make a state official the unilateral arbiter of whether the excess emissions in a given event 

constitute a violation. The jurisdiction of federal courts to determine liability and to impose 

statutory remedies for violations 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 jurisdiction of the federal courts under CAA section 113 and section 304 to 

determine liability and to impose remedies are inconsistent with fundamental legal requirements 

of the CAA. The fact that citizens or the EPA would have the power to bring suit in cases where, 
Response to Comments – SSM 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 provisions such as automatic exemptions for excess 

emissions during SSM events hinder effective enforcement for violations is incorrect, because 

there have been a number of citizen suits brought under the CAA.” 

Comment: 

The Ohio EPA commented that the “exemption from a reported opacity exceedance, provided 

that reporting emission limit violations 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 Ohio 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 the NAAQS, the EPA does not have a valid 

basis for issuing this SIP call. 

Response: 

The EPA believes this topic is adequately 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.” 

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 that 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 unambiguous on their face. 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. The provision at OAC 3745-15-06(C) relates, at 

least in part, to the director’s discretion 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 argues that these rules underwent the appropriate 

process at the state level and again at the federal 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 obtaining a full understanding of the technical 
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72 

evaluations conducted by [the Ohio EPA] under the SIP-approved rule provisions.” The Ohio 

EPA also states that the EPA did not identify any problems with the identified provisions during 

the EPA’s State Review Framework enforcement program audit in October of 2012. The Ohio 

EPA appears to argue that the EPA fails to take into account Ohio EPA’s implementation of 

these provisions, including the use of enforcement discretion. 

Response: 

The EPA is not suggesting that the public was deprived of public notice and comment 

opportunities with respect to provisions at issue in this rulemaking, and public notice procedures 

are not a basis for the Agency’s action here. Rather, 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 

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 further discussion on this topic, readers may refer to 

section VIII.D.18, “Comments that the EPA’s initial approval of these 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 regulation at 40 CFR 60.8 precludes the use of the 

reference methods (listed in 40 CFR Part 60, Appendix A) during periods of SSM. The Ohio 

EPA argues that 40 CFR 60.8 indicates that excess emissions during periods of SSM are not 

considered violations of an applicable emission limitations. 

The Ohio EPA argues that the startup exemption 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 low-NOx burner during shutdown and malfunction 

periods does not reduce NOx emissions. For a mid-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 formation.” 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 that suggested that Ohio EPA include the nowdisputed language in these rules. 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

73 

Response: 

The EPA disagrees with the basic premise of the commenter that if a specific form of emissions 

control does not operate, or does not operate as efficiently, during certain modes of operation 

such as startup, this justifies a complete exemption from applicable 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 alternative emission limitation 

during specific modes of source operation, so long as those alternative limits meet applicable 

stringency requirements for the type of SIP provision at issue 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 for a particular source category, the EPA 

encourages the development and imposition of a different form of emissions controls during such 

modes of operation in lieu of the impermissible exemptions that currently exist. In this action, the 

EPA is not determining what alternative emission limitations may or may not be appropriate, but 

merely directing states to undertake revision of specific SIP provisions to address identified 

deficiencies. The EPA will work with 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 defenses 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 states to develop emission limitations that apply 

during startup and shutdown to replace existing exemptions.” 

2. Comment of parties other than 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 maintenance 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 required to “take appropriate action 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 requirements apply to the malfunction exemption from 

visible particulate emission limitations for stack emissions and fugitive dust in OAC 3745-17-

07(A)(3)(c) and (B)(11)(f). The commenter believes that the requirement to implement “all 

feasible interim control measures,” in OAC 3745-15-06(A)(3)(f), is a “requirement relating to 

the operation or maintenance of a source to assure continuous emission reduction” and a “work 

practice or operational standard.” The commenter argued that therefore these provisions are all 
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74 

emission limitations and therefore 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 discretion provisions that exempt sources from 

otherwise applicable compliance 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 official 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 OAC 3745-15-06(A)(3) has a few limitations, as the commenter 

points out, the state official can regardless unilaterally decide that a source may continue 

operation “if, in his judgment, the situation justifies continued operation of the sources.” The 

state official’s discretion is therefore not sufficiently 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 limitation that overcomes the impermissible director’s discretion 

provision. The specific requirements of a SIP emission limitation must be discernible on the face 

of the provision, must meet the applicable substantive and stringency requirements of the CAA 

and must be legally and practically enforceable. For further discussion on this topic, 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 ‘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.” 

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 regulations 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 constitute advance approval of any exemptions which 

may be claimed or issued under Ohio’s regulations. Thus, U.S. EPA may take independent 

enforcement action to the extent allowed by section 113 and any other applicable provisions of 

the CAA, notwithstanding the issuance of an exemption by the state.” 59 FR 27465–66. 

Similarly, another commenter noted that when 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 as 
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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 discretion on a case-by-case basis depending on the 

circumstances surrounding the malfunction. ...In all cases, the Director 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 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 further discussion on this 

topic, readers may refer to VIII.D.18, “Comments that the EPA’s initial approval of these 

deficient provisions, or subsequent indirect approval of them through action on other SIP 

submission, establishes that these provisions 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 requirement 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 limitation,” 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 principle that “technology-based 

standards should account for the practical realities of technology,” 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 “design standard,” or a “technology-based standard.” 

The EPA disagrees with the commenters’ conclusion that the mere act of labeling certain SIP 

provisions in ways other than as “emission limitations” can be a means to circumvent the 

requirement that emission limitations must regulate sources continuously. To the extent that 

there is any ambiguity in the requirements of section 110(a)(2), it is not reasonable to interpret 

the statute to allow the explicit requirement that emission limitations must be continuous to be 

negated in this fashion. The premise of the SIP 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 states to have SIP provisions with exemptions 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

76 

for emissions during SSM events because they are 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 “affected states” in the proposed rulemaking, one 

commenter provided comment regarding the Wisconsin SIP on the February 2013 proposal. 

Comment: 

One commenter stated that the Midwest Environmental Defense Center (MEDC) 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 Petition to EPA to Find Inadequate and Correct 

Wisconsin’s State Implementation Plan Under Section 110 of the Clean Air Act Due to Unlawful 

Startup, Shutdown, and Maintenance Provisions (June 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 states 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 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.” 

2.6 Affected State Rules in EPA Region VI 

a. Arkansas 

We received no comments on the provisions of the Arkansas 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 minimum 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 impact on the ability to achieve and maintain the 

NAAQS. Referencing the EPA’s use of conditional, interim, and partial SIP approvals, LDEQ 
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77 

asserted that CAA section 110(k)(5) does not authorize the use of a full SIP call to correct a “SIP 

that has already undergone review and complies 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 exemptions from otherwise applicable 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 notice. 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 because it is required to ‘quantify’ the magnitude of any alleged SIP 

deficiency in order to establish that it is substantial.” In addition, the fact that the EPA may have 

erred in prior SIP approvals does not support an argument 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, “Comments that the EPA’s initial approval of these 

deficient provisions, or subsequent indirect approval of them through action on other SIP 

submissions, establishes that these provisions meet CAA requirements.” 

Comment: 

The LDEQ was among many commenters who asserted that the EPA’s interpretation of an 

“emission standard” in CAA section 302(k) is erroneous. LDEQ noted that while a source is 

subject to the standard 100 percent of the time, the source need not reduce emissions 100 percent 

of the time. LDEQ pointed to some of the NSPS and MACT regulations, as examples of where 

the EPA has accounted for variability in the standard itself. The commenter referenced the 

seasonal nature of the regulation of some criteria 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 with the commenter to 

the extent the commenter means that it may be appropriate to impose continuous emission 

limitations that allow for different levels or forms of emissions control during certain modes of 

source operation, so long as those are properly developed, meet the applicable level of 

stringency for the type of SIP provision at issue, 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 imposes no restrictions on 

emissions, whether expressed numerically, as a specific control technology, or as a work 
Response to Comments – SSM 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 made continuous through imposition of different 

levels or forms of emissions control, so long as they meet applicable requirements with respect to 

stringency and are legally and practically enforceable. With respect to the commenter’s 

arguments concerning the NSR program, the EPA notes 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 exemptions from the emission limitation” and 

section VII.A.3.g, “Comments that the definition of ‘emission limitation’ in section 302(k) does 

not require all forms of emission limitations must apply continuously.” 

Comment: 

The LDEQ asserted that the revisions contemplated 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 written, but without an exemption for startup or shutdown, would 

have been met with challenges that the regulations were arbitrary 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 contained 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 certain periods of operation. The EPA believes these 

topics are adequately 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 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 states to 

develop emission limitations that apply during startup and shutdown instead of existing 

exemptions.” Furthermore, the EPA believes that promoting implementation of proper 

maintenance, good housekeeping practices, and corrective action measures yields environmental 

benefits and air quality improvements. 

Comment: 

The LDEQ asserted that the Louisiana SIP provides 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 maintained the Louisiana SIP does not provide carte 

blanche for the regulated industry to emit pollutants at any rate, at any time, even during startup 

or shutdown. The regulations are carefully tailored regarding startup and shutdown conditions, 
Response to Comments – SSM 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 “normal” operating conditions. 

Response: 

The EPA does not claim that emissions 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 appropriate 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 those in the current Louisiana SIP provisions that 

are the subject of this rulemaking. The EPA believes 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 its regulations and claimed 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 particulate matter or gases to become airborne in 

amounts which cause the ambient air quality standards 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 manner 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 Louisiana SIP provisions that are the subject of this 

action. The EPA believes this topic is adequately addressed 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 engineering 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.” 

Comment: 

The LDEQ was among many commenters who claimed that the EPA’s proposed SIP call was not 

meeting the principles of “cooperative federalism.” LDEQ stated that the EPA is without 

authority to “second-guess” Louisiana on its choices of appropriate air regulations emission 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

80 

reductions necessary to produce this verifiable reduction in ambient air levels of criteria 

pollutants. 

Response: 

The EPA believes this topic is adequately addressed 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 director’s discretion to grant exemptions from a SIPapproved regulation does not change the underlying emission limitation and does not require the 

EPA to approve that action. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VII.C.3.b, “Comments that director’s discretion provisions 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 current 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 Parish 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 for 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 unavoidable 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 rulemaking are narrowly tailored and are far more 

deliberate and nuanced than Utah’s overly broad UBR. In support of its position that the 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

81 

Louisiana SIP provisions are adequate, the commenter 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 otherwise applicable emission limitations, whether or 

not they are narrowly tailored as the commenter 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, “Comments 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 effectiveness provisions that concern compliance with 

applicable emission limitations and are quite different than a SIP provision which provides for 

an exemptions which, if met, would not be considered a violation. The EPA believes this topic is 

adequately addressed in the notice of final action and directs readers to section VIII.D.19, 

“Comments that exemptions for 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’ adequately 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 many commenters who generally stated that CAA section 110 

provides states with broad discretion in developing their SIPs and “the Act gives [the EPA] no 

authority to question the wisdom of a state’s choices of emission limitations if they are part of a 

plan that satisfies the standards of CAA section 110(a)(2).” The Oklahoma AG stated that the 

proposed rulemaking action undermines the federal-state partnership fostered by the CAA and 

violates the principles of “cooperative federalism,” and also that the EPA is overstepping its 

bounds by eliminating an SSM exemption. 

Response: 

The EPA believes this topic is adequately addressed 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.’” 
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Comment: 

The Oklahoma AG was among commenters who stated 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 inadequate.” 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 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.” 

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 other commenters also provided comment on the 

SNPR, which did include an evaluation of affirmative defense provisions in the Texas SIP. 

1. Comment of the Texas Commission on Environmental Quality 

(TCEQ) (0487) 

Comment: 

The TCEQ provided initial comments in general 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 the 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 that 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 respect the federal-state partnership created by the 

CAA and should not substitute its judgment for that of a state. 

Response: 

The EPA believes this topic is adequately addressed 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.’” 
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Comment: 

The TCEQ wanted to ensure that the EPA does not intend to prohibit all director’s discretion in 

rules adopted to implement the SIP. The TCEQ did not agree that this 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 proposed rule. According to the 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 specifically addressed in this rulemaking. However, 

the EPA emphasizes that “director’s discretion” provisions are only consistent with CAA 

requirements if they either provide for EPA approval of the variances granted by the state or are 

sufficiently bounded so that the 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 expressed 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 federal CAA. Accordingly, 

TCEQ agrees with the EPA's decision to deny the petition on this issue concerning reliance on 

interpretive letters in actions on SIP submissions based on the EPA's proper documentation of 

interpretative letters in notice-and-comment rulemakings. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VI.D.1, “Comments that supported 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 position regarding emissions 

associated with malfunctions and upsets. 

Response: 

Although TCEQ’s planned permitting program set forth 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 startup, shutdown, and maintenance activities, provided such permitting 

activities do not conflict with applicable SIP requirements. 
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2. Comment of the TCEQ (0936) 

Comment: 

The TCEQ was among commenters who argued that the supplemental proposal inappropriately 

deviates from the Fifth 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 regarding Texas’s affirmative defense provision 

for malfunctions. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.7, “Comments 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 who stated that the affirmative defense provisions cited in 

the supplemental proposal notice do not limit the authority of federal courts in enforcement 

cases. TCEQ argues that the Texas SIP is consistent with CAA section 113(e) and that the 

affirmative defense provision does not alter the jurisdiction of the federal 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 addressed in the notice of final action and directs 

readers to section IV.D.34, “Comments that affirmative defense provisions do not alter or 

eliminate federal court jurisdiction and therefore 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 the supplemental notice. 

Response: 

The EPA believes this topic is adequately addressed 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. 
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Circuit in NRDC v. EPA to SIP provisions because 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 states are afforded wide discretion in developing SIPs, as opposed 

to the more narrowly drawn statutory language of CAA § 112. TCEQ alleged that states’ 

statutory authority to develop SIP limits extends to ameliorative provisions, like affirmative 

defenses. 

Response: 

The EPA believes this topic is adequately addressed 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 section 110, because section 110 

affords states flexibility in how to develop emission limitations in SIP provisions.” 

Comment: 

The TCEQ was among commenters who argued that the EPA’s supplemental proposal violates 

principles of cooperative federalism. TCEQ stated that the EPA’s supplemental proposal is in 

conflict with well-established judicial precedent that states have broad discretion in developing 

SIP controls. 

Response: 

The EPA believes this topic is adequately addressed 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, such as an exceedance of the NAAQS. TCEQ was 

among commenters who argued that this position 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 the EPA’s proposed approach may actually have 

an adverse effect on the attainment and maintenance of the NAAQS because getting rid of 

affirmative defense provisions reduces the incentives for owners and operators to minimize 

emissions during malfunctions. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.12, “Comments that the EPA has not proven the existence of affirmative 
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86 

defense provisions in SIPs is resulting in specific environmental impacts or interference with 

attainment and maintenance 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 enforcement discretion tool for the state environmental 

agency. According to TCEQ, the affirmative defense provision at issue in the supplemental 

proposal allows for the prioritization of enforcement actions. TCEQ also alleged that the 

affirmative defense provision provides certainty to the regulated community because it outlines a 

structure to how TCEQ will grant enforcement discretion. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.38, “Comments that affirmative defense provisions function as structured 

state “enforcement discretion” and are an important tool for states to prioritize enforcement 

activities.” 

Comment: 

The TCEQ was among commenters who claimed that the EPA failed to comply with the 

requirements of CAA § 307(d)(3) in the supplemental proposal notice because the EPA failed to 

adequately address the requirements for a statement of basis and purpose of the rule, a summary 

of the major legal interpretations and policy considerations, and a summary of the factual data on 

which the proposed rule was based. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.36, “Comments that the SNPR did not meet the procedural requirements 

of section 307(d) because the EPA failed to provide its legal interpretations 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 that affirmative defense SIP provisions for malfunctions are 

“substantially inadequate.” According to TCEQ, the EPA failed to provide any technical basis 

for the requisite finding under CAA § 110(k)(5) that affirmative defenses for malfunctions lead 

to violations of the NAAQS, inadequate mitigation of transport emissions, or any other issue 

with meeting a CAA requirement. TCEQ also claimed that the EPA failed to explain in the 

supplemental proposal notice how the EPA defines “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. 
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Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.20, “Comments that the EPA has failed to show state SIPs are 

substantially inadequate, as is required to promulgate a SIP call.” 

Comment: 

The TCEQ was among commenters who alleged that the EPA inappropriately determined that 

the action proposed in the supplemental notice is “nationally applicable” 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 proper venue for any subsequent legal action with 

respect to the Texas SIP provisions. According to TCEQ, venue for Texas’s affirmative defense 

provisions is already established in the Fifth Circuit because of the Luminant case. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.21, “Comments that this action is not national in scope, and therefore 

the D.C. Circuit is not the sole venue for review of this action.” 

3. Comment of parties other than 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 for 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 authorizing planned SSM activities 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 whether to exempt such emissions from the 

BACT limits applicable to other routine emissions or when determining what limits 

constitute BACT for emissions for planned maintenance, startup and shutdown activities. 

Response: 

Consistent with the position stated in the SNPR, 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. However, 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 program related to planned startup, shutdown, and 

maintenance activities. 
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Comment: 

One commenter remarked that the SIP call is only the first step in a process that will require 

multiple independent rulemakings followed by SIP submittals. The commenter asserted that 

absent strict EPA oversight, some industries and states will use this process to weaken and 

eviscerate SIP limits. The commenter then provided examples of specific permitting actions in 

Texas, wherein the commenter claimed the state permitting authority has issued permit 

amendments authorizing emissions during periods 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, and 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 implementation of its permitting program. We recognize 

appropriate oversight and enforcement is an important component in the administration of air 

quality regulations by a state or local agency. For further discussion on this topic, readers may 

refer to section IV.D.27, “Comments that the EPA should closely monitor states’ 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 disproportionate impact on Texas. The commenters 

asserted that this disproportional impact is the result, in part, of the state’s large number of 

complex sources and regulatory programs that impose unique and stringent reporting and 

response requirements. The commenters noted the large number of refineries and petrochemical 

plants located in Texas and provide a brief history of how excess emissions have been addressed 

under the Texas SIP. The commenters requested that 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 concentration 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 have 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 believes that SIPs which provide 

affirmative defenses to excess emissions (including excess emissions caused by malfunctions) are 

inconsistent with CAA requirements for SIPs. Furthermore, the EPA believes that the removal of 

such provisions from the Texas SIP will not significantly affect the data collection, reporting, 

and investigative requirements contained in the excess emission requirements of the Texas SIP. 
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Under the current Texas SIP, information submitted by sources related to excess emissions is 

evaluated by TCEQ to determine if the excess emissions were excessive, the result of a 

malfunction, and whether or not an enforcement action for penalties or injunctive relief is 

appropriate. The fact that Texas is home to a large number of refineries 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 shutdown activities. The commenter cited 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, and concludes that excluding startup and shutdown in that 

notice somehow prevents the EPA from finalizing its proposed SIP call for Texas’s affirmative 

defenses as they apply to startup and shutdown periods. 

Response: 

While the EPA previously argued that narrowly defined affirmative defenses for excess emissions 

caused by malfunctions (including unplanned maintenance, startup, and shutdown activities 

which are functionally equivalent to malfunctions) could be approved into a SIP, the EPA now 

believes that any affirmative defense for excess emissions would 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 emissions, including excess emissions resulting 

from upsets and unplanned maintenance, startup, or shutdown activities. For further discussion 

on this topic, readers may refer to section IV.D.37, “Comments that the EPA has recently 

approved affirmative defense provisions through 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 than 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]etermination of any subsequent 
Response to Comments – SSM 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 Administrative Code that this provision 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 original 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 only require that the state personnel consider such factors. The 

regulations do not state or imply that if a source makes an appropriate showing of meeting the 

factors, it is exempt from penalties or injunctive relief. The provision does not state or imply that 

any other entity, including the EPA or a member of the public, is precluded from taking an 

enforcement action if the state exercises its discretion not to enforce violations of the emission 

limitations during malfunctions. The EPA believes that the provision is on its face clearly 

applicable only to Iowa state enforcement personnel and that the 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 discretion. This is consistent with the CAA and the 

EPA’s SSM Policy and therefore does not render the SIP provision substantially inadequate. The 

EPA solicited comments on this issue, in particular from the State of Iowa, to assure that there is 

no misunderstanding with respect to the correct interpretation of Iowa Admin. Code r. 567-

.24.1(4). Iowa did not comment that the EPA’s interpretation was incorrect. 

b. Kansas 

1. Comment of the Kansas Department of Health and Environment 

(KDHE) (0129) 

Comment: 

The Kansas Department of Health and Environment (“KDHE”) was among many commenters 

who generally stated that CAA § 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 responsibility 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 partnership intended in the CAA.” Id. 

Response: 

The EPA believes this topic is adequately addressed 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.’” 
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Comment: 

The KDHE stated that the EPA has provided no technical demonstration “to prove ‘substantial 

inadequacy’ of the Kansas SIP due to the provisions 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 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.18, “Comments that the 

EPA’s initial approval of these deficient provisions, or subsequent indirect approval of them 

through action on other SIP submissions, establishes 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 suit where the Department elects to exercise 

enforcement discretion.” Comment 0077 at 1. The commenter stated that this position “is 

explained in Missouri’s air pollution enforcement authority 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 confirmation from the Missouri Department 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 revise both of the provisions in 

the Missouri SIP identified in the Petition referenced in the Proposed Rule” because the 

commenter “is concerned that the Missouri SIP contains provisions that compromise the 

enforceability of unlawful excess emissions.” Comment 0579 at 9. 
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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 this regulation is permissible because it defines 

parameters for the exercise of enforcement discretion by state personnel for violations of 

emissions limitations. The provision only indicates that state enforcement personnel “shall 

consider” certain factors in determining whether to take an enforcement 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 discretion not to pursue enforcement. The Missouri Department of Natural 

Resources commented to confirm the EPA’s interpretation of Mo. Code Regs. Ann. tit 10, § 10-

6.050(3)(C). Comment 0077. Accordingly, the EPA believes that Mo. Code Regs. Ann. tit 10, 

§ 10-6.050(3)(C) is consistent with the CAA and the EPA’s SSM Policy. 

d. Nebraska 

1. Comment of the Nebraska Department of Environmental Quality 

(0123) 

Comment: 

The Nebraska Department of Environmental Quality (NDEQ) commented “in support of EPA’s 

proposed decision to deny the petition with respect to the Nebraska SIP and 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. Admin. 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 County Air Pollution Control Program (Art. 2 §35), 

“do[] not expressly or implicitly place any limits 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 Sierra Club’s petition because it is not a part 

of the Nebraska SIP.” Id. 

Response: 

The EPA acknowledges the confirmation from the NDEQ and notes the clerical correction to the 

regulatory citation to Neb. Admin. Code Title 129, Chapter 35, Section 001. 
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93 

2.8 Affected State Rules in EPA Region VIII 

a. Colorado 

1. Comment of the Colorado Department of Public Health and 

Environment (0525) 

Comment: 

The Colorado Department of Public Health and Environment (CDPHE) alleged that the EPA had 

changed its position on startup and shutdown events. 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 addressed 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 alternative 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 during 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 shutdown periods. The CDPHE may rely on emissions factors in such a 

situation, but it points out that the EPA has not set emissions 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 startup and shutdown, doing so may require 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 work practice requirement applicable during such 

periods of operation. There may be source categories for which an appropriate emission 

limitation during startup or shutdown 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 level of control for a specific source category, 

the EPA believes that states will be able to gather information about what forms of emissions 

controls are effective and appropriate by investigating what emission limitations have been 
Response to Comments – SSM 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 information concerning potential emissions controls. In 

any event, the relevant information needed in order 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 defense provisions at issue in this state, that do 

not meet CAA requirements. 

In addition, the EPA believes, these topics are also addressed 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”; 

section VII.B.3.b, “Comments that it is impossible, unreasonable or impractical for states to 

develop emission limitations that apply during 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 during SSM events is a ‘paper exercise’ or ‘exalts form over 

substance.’” 

b. Montana 

1. Comment of the Montana Department of Environmental Quality 

(0597) 

Comment: 

The Montana Department of Environmental Quality (Montana DEQ) was among commenters 

who expressed concern that the EPA has not involved stakeholders in the process. The Montana 

DEQ alleged that the EPA should have consulted with the state agency about the claims made in 

Sierra Club’s petition instead of independently determining that Montana’s SIP was inadequate. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section V.D.5, “Comments that the EPA did not provide a sufficiently 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 proposed rule, but argued that 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 commenter asserted that this SIP provision is 

particularly problematic because there are insufficient certified ambient air monitors that could 

be relied on by DEQ in an enforcement action. 
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Response: 

We acknowledge the commenter’s general support for our finding that Montana’s startup and 

shutdown exemption for aluminum smelters, Mont. Admin. R. 17.8.334, is substantially 

inadequate. Comments about the adequacy of a state’s ambient air monitoring network and the 

designation process for nonattainment areas are outside the scope of our proposed action. The 

EPA did not propose to find the specific provision 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 acknowledged 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 during startup and shutdown are not representative 

conditions for determining compliance with existing emission limits. 

Response: 

The EPA disagrees with this comment. With respect to the concern identified by the commenter 

regarding the fluoride emission standard, the EPA’s finding of substantial inadequacy does not 

immediately compel the source to comply with 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 address the commenter’s concern by providing an alternative 

emission limitation that applies during startup and shutdown, so long as the alternative emission 

limitation complies with all other CAA requirements. 

With respect to test methods, the EPA believes this topic is adequately addressed 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 startup and shutdown, and therefore 

does not give us any reason to think that alternative 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. 
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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 deleted from the North Dakota Air Pollution 

Control Rules. A SIP revision was submitted 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 North 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 inadequate, 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 petition with respect to them. 

Comment: 

The North Dakota Department of Health commented that the EPA’s interpretation of N.D. 

Admin. Code 33-15-03-04.3 is unreasonable and without 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 been 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 regulation itself does not specify any procedure, 

permitting or otherwise, to establish a different opacity limit. Regardless, as explained in our 

proposal notice, provisions that give the director unbounded discretion to change stationary 

source requirements outside of the SIP revision process violate basic SIP revision procedural 

and substantive requirements in sections 110(a)(1), (a)(2), (i), and (l) of the Act. Furthermore, 

provisions that give the director unbounded discretion to change SIP emission limitations 

outside of the SIP revision process create enforceability issues for such limitations and therefore 

violate sections 110(a)(2)(A), 113, and 304 of the Act. Finally, there is the possibility that an 

unbounded director discretion provision will be used to create exemptions for an otherwise 

continuous emission limitation, thereby violating the continuity requirement in 302(k). For 

further discussion of this topic, readers may refer to section VII.C.3.e, “Comments opposed to 
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the EPA’s approach on the premise that there is no ‘director’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.” 

Comment: 

The North Dakota Department of Health stated that the EPA’s assertion that NDAC 33-15-03-

04.3 could lead to a source having no opacity limit is without merit. According 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 place 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 did not say in the February 2013 proposal that 

the provision at issue may lead to a source having no applicable opacity limit. Instead, we stated 

that the provision was an instance of unbounded director discretion. 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 enforceability but also with respect 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 startup, 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 opacity standards are established as a means of 

determining whether PM air pollution control equipment is working properly; opacity standards 

are not an indicator of compliance with a NAAQS. The North Dakota Department of Health 

stated that it cannot correlate opacity and mass emission rates unless it knows the specific 

characteristics of the particles causing visible emissions. The North Dakota Department of 

Health alleged, for example, that it has found that visible emissions from burning sunflower seed 

hulls is much larger than the same concentration of fly ash from burning coal. For this reason, 

the North Dakota Department of Health argued that a system of separate visible limits, as 

provided in the challenged SIP provision, are necessary. 

Response: 

The EPA disagrees with this comment. With respect to opacity limits, PM, and the NAAQS, the 

EPA believes this topic is adequately 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 pollutant.” With respect to the commenter’s point about visible 

emissions varying for differing types of sources, even if that is correct, all that can be inferred 
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from it is that the state should establish source 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 Environment 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. Specifically, South Dakota DENR argued that the EPA’s 

February 2013 proposal is arbitrary and capricious because the EPA’s own regulations establish 

SSM exemptions. The South Dakota DENR cited several specific provisions from NSPS and 

MACT standards that it alleged allow for 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 years to revise the rules. 

Response: 

The EPA believes this topic is adequately addressed 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 allowed 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 methodology 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 periods 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 fundamental part of the limit.” 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section VII.A.3.s, “Comments that exemptions from SIP opacity limitations for excess 

emissions during SSM events should be allowed because such emissions are difficult to monitor 

or to control” and 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.” 
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Comment: 

The South Dakota DENR was among many commenters who generally stated that CAA § 110 

provides states with broad discretion in developing their SIPs and that the EPA exceeded its 

authority in this proposed SIP call. The South Dakota DENR was also among commenters who 

stated that the states have primary responsibility 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 Appeals. According to the South Dakota SENR, 

section 110(a)(2)(A) of the CAA requires that “Each implementation plan submitted by a 

State...include enforceable emission limitations 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 flexibility 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 requirement of the [CAA].” CAA 

section 110(k)(5). The South Dakota DENR alleged that 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 addressed 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 requirement 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 who generally stated that opacity should be 

excluded from the proposal. The South Dakota DENR noted that the South Dakota SIP provision 

at issue in the February 2013 proposal is explicitly limited to the opacity limit established in 

ARSD 74:36:12:01. 

The South Dakota DENR also noted that, though the length of time of SSM periods may vary by 

event, the exemption in ARSD 74:36:12:02(3) is restricted to brief or short durations and a brief 

exemption from an opacity limit will not prevent maintenance or attainment of the NAAQS. The 

South Dakota DENR also stated that the challenged SIP provision is also limited to malfunction 

events, which are outside of an operator’s control. 
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100 

Response: 

The EPA believes this topic is adequately 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 pollutant.” Additionally, the EPA notes that the fact 

that an exemption from an emission limitation might apply during a “short” or “brief” period or 

only in the event of a malfunction does not change the fact that it violates the requirement in 

section 302(k) that emission limitations be continuous. 

Comment: 

The South Dakota DENR stated that 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 periods. According to the South Dakota DENR, the 

EPA’s SIP call will impose costs on companies without helping South Dakota attain the 

NAAQS. 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section VII.A.3.s, “Comments that exemptions from SIP opacity limitations for excess 

emissions during SSM events should be allowed because such emissions are difficult to monitor 

or to control” and section V.D.7, “Comments that 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 Department of Environmental Quality 

(Wyoming DEQ) (0565) 

Comment: 

The Wyoming Department of Environmental Quality (Wyoming DEQ) was among commenters 

who generally disagreed with the EPA’s definition of continuous emission limitation because it 

fails to take into consideration the averaging times in regulations. 

Response: 

The EPA disagrees that its interpretation of the terms “emission limitation” and “continuous” is 

incorrect. The implication of the comment is that the EPA interprets the CAA to require that all 

SIP emission limitations must be expressed numerically and that they must be set at the same 

numerical level at all times. As explained in the final notice, this 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 for that type of SIP 

provision and is legally and practically enforceable. Inappropriately high numerical limits and 
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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 must apply continuously.” 

Comment: 

The Wyoming DEQ was among many commenters who generally stated that CAA § 110 

provides states with broad discretion in developing their SIPs and that the EPA exceeded its 

authority in this proposed SIP call. Specifically, 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 addressed 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 Wyoming 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 adequately 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 supported the use of interpretive letters. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VI.D.1, “Comments that supported the EPA’s interpretation of the CAA to 

allow reliance on interpretive letters to clarify ambiguities in state SIP submissions.” 
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Comment: 

The Wyoming DEQ stated that a “special-interest 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 petitioners to exhaust state remedies and options. 

Response: 

The EPA believes this topic is adequately addressed 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 requirement for nongovernmental organizations and other 

third parties to raise issues with SIPs during the 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 their 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 EPA to object to state title V permits to have 

raised their objections with reasonable specificity during the state public commenting period). 

Regarding the suggestion that the EPA “direct the 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 petition 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 years 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 approvals as support for its proposition. See 40 CFR 51.166(a)(6). 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.24, “Comments that the EPA should provide more than 18 months for 

the SIP call because state law administrative process can take longer than that.” We disagree 

with the commenter’s suggestion that the 3 years 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 promulgation of a new or revised NAAQS and in the absence 

of a specific statutory provision giving deadlines for revisions to PSD programs. See 67 

FR 80186 at 80240–41. In contrast, section 110(k)(5) specifically provides that the EPA cannot 

establish a deadline to respond to a SIP call that is longer than 18 months. 
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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 unreasonable in calling for the state to undertake such 

an expensive and time-consuming process to address a single sentence that has been in 

Wyoming's plan for almost 40 years.” 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section V.D.7, “Comments that the 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 subsequent indirect approval of 

them through action on other SIP submissions, establishes 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 bases in the record to support a SIP call. According to the Wyoming 

DEQ, the EPA stated in the February 2013 proposal notice that Wyoming’s provision “does not 

appear to comply with the CAA’s requirements for source category-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-specific rule” is at issue and leaves 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 provision, which we approved on October 21, 2014. 79 

FR 62859. We are therefore not finalizing our proposed grant of the petition with respect to this 

provision. 

Comment: 

The Wyoming DEQ argued that the EPA does not have authority for this SIP call under CAA 

§ 110(k)(5). According to Wyoming 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 requirements of this Act to which the 

State was subject when it developed and submitted the plan for which such finding was made.” 

The Wyoming DEQ believes that the plain language 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.” 
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Response: 

The EPA believes this topic is adequately addressed 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 February 2013 proposal that this 

rulemaking is “nationally applicable.” Wyoming 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 addressed in the notice of final action and directs 

readers to section V.D.6, “Comments that this action 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 Department 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 rules are not adequate to protect 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 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.” 

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. 
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Response: 

The EPA believes this topic is adequately addressed 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 limitations that apply during startup and shutdown instead of existing 

exemptions.” 

2. Comment of the State of Arizona’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 from Arizona’s Pima County Department of 

Environmental Quality. 

3. Comment of the Arizona Department of Environmental Quality 

(ADEQ) (0934) 

Comment: 

The Arizona Department of Environmental Quality (ADEQ) was among commenters that stated 

the EPA failed to cite any evidence that affirmative defense SIP provisions for malfunctions 

cause actual harm to the public health or environment. ADEQ alleged that without such 

evidence, it is unreasonable for the EPA to assert that existing SIP provisions are not adequate to 

protect human health and the environment. 

Response: 

The EPA believes this topic is adequately addressed 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 resulting in specific environmental impacts or 

interference with attainment and maintenance of the NAAQS.” 

Comment: 

ADEQ was among commenters that stated that SIP provisions providing affirmative 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 suit against facilities for excess 

emissions. 
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Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.16, “Comments that existing 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 addressed 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 because the court did not address the legality of 

affirmative defense provisions in SIPs.” 

Comment: 

ADEQ was among commenters that stated that the EPA should follow the holding of Luminant, 

instead of NRDC, in assessing the appropriateness of affirmative defense provisions for 

malfunctions. ADEQ asserted that the Luminant decision demonstrates that an affirmative 

defense provision for malfunctions is permissible. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.7, “Comments 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 and were beyond the facility’s control. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section IV.D.8, “Comments that affirmative defense provisions are needed or 

appropriate because sources cannot control malfunctions or the excess emissions that occur 

during them.” 
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Comment: 

ADEQ was among commenters that stated that if the EPA finalizes its action requiring states to 

remove affirmative defense provisions for malfunctions from SIPs, alternative emission limits 

would need to be developed because current standards 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 addressed 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 required 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 denial of the petition with respect to Pima 

County’s enforcement discretion rule is improper because the commenter believes the provision 

is ambiguous and could be construed to preclude enforcement actions by the EPA or citizens. 

The commenter argued that, at a minimum, the EPA should require Arizona to amend the 

language in the SIP provision to make clear that it does not limit enforcement by the EPA or 

citizens. 

Response: 

As the EPA explained in the proposal notice, it does not believe that Rule 706 creates ambiguity 

that could be construed to preclude enforcement by the EPA or citizens. Rule 706(D) provides: 

“[t]he control officer may defer prosecution ... for an exceedance of a control standard” 

(emphasis added). This rule does not address enforcement by the EPA or citizens in any way. 

Further, Arizona’s Pima County Department of Environmental Quality commented in support of 

the EPA’s proposed interpretation of this rule and 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 Court of Appeals regarding the EPA’s refusal to fully approve 

Arizona’s title V program because of concerns with a prior excess emissions rule. According to 

the commenter, AMA, ADEQ and the EPA developed 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 ADEQ’s SIP revision, which included the language 

at issue in this action. According to the commenter, the EPA explained in its final action that it 
Response to Comments – SSM SIP Rulemaking – EPA-HQ-OAR-2012-0322 – May 2015 

108 

had proposed to approve the rules because it had 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 characterization of the terms 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 time on submitted SIP provisions that address 

excess emissions during period of startup, shutdown, malfunction, and maintenance. Such 

provisions are now subject to the EPA’s SIP call and revised SSM policy. However, nothing in 

that settlement agreement precludes the EPA from later determining 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 inadequate and should be removed from the SIP. The 

settlement agreement itself states that nothing 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 time or to promulgate or issue superseding 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 policy 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 settlement agreement with AMA. 

For more discussion on this topic, readers may refer to section VIII.D.18, “Comments that the 

EPA’s initial approval of these deficient provisions, or subsequent indirect approval of them 

through action on other SIP submissions, establishes that these provisions meet CAA 

requirements.” 

b. California 

We received no comments on the provisions of the California 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) provided general comment on the February 2013 

proposal. 

1. Comment of the Nevada Division 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 actually resulted in a violation of the NAAQS. 
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109 

Response: 

The EPA believes this topic is adequately 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.” 

Comment: 

The NDEP was among commenters who generally opposed the EPA’s interpretation of the CAA 

with respect to “director’s discretion” provisions and thus disagreed with the EPA’s proposal. 

The NDEP alleged that the EPA’s position with respect 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 determining whether excess emissions during an SSM 

event should be considered a violation.” 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers 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” 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 addressed in the notice of final action and directs 

readers to section VI.D.1, “Comments that supported 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 stated that the EPA was inappropriately 

basing the SIP call on guidance, which is nonbinding. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.14, “Comments that the EPA inappropriately is ‘using guidance’ as a 

basis for the SIP call action.” 
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110 

2. Comment of the State of Nevada’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 addressed 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 establishing alternative emission limitations for startup 

and shutdown, while still demonstrating compliance with applicable CAA requirements, would 

be a difficult, time-consuming task. 

Response: 

The EPA believes this topic is adequately addressed 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 limitations that apply during startup and shutdown instead of existing 

exemptions.” 

Comment: 

The Clark County Department of Air Quality was among commenters who generally stated that 

the EPA’s proposed rulemaking action may result 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 similarly diligent with respect to complying with 

applicable SIP emission limitations absent an affirmative defense. The EPA disagrees that the 

existing structure of the CAA does not already provide a statutory framework that will encourage 

sources to limit emissions or to proceed responsibly in the event of a malfunction. Second, the 

EPA notes that, regardless of the commenter’s policy preference for relying on an affirmative 
Response to Comments – SSM 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 adequately addressed 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.’” 

2.10 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 Environmental Conservation (Alaska DEC) was among many 

commenters who generally stated that CAA § 110 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 generally stated that the proposed SIP call 

contravenes the principle of cooperative federalism or that it undermines the federal-state 

partnership intended by the CAA. 

Response: 

The EPA believes this topic is adequately addressed 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 “substantially 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 that 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 successful in attaining and maintaining air quality 

standards during the 15 years that Alaska’s excess emissions provision has been in effect. 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.17, “Comments that 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.” 
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112 

Comment: 

The Alaska DEC was among many commenters who expressed concern that the EPA has not 

involved stakeholders in the process. Specifically, the Alaska DEC commented that the EPA 

failed to properly consult with Alaska on the specific issues and findings related to Alaska’s SIP 

before proposing the SIP call. 

Response: 

The EPA believes this topic is adequately addressed 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 revisions to the Alaska SIP in 2007, the EPA 

specifically did not approve what the EPA characterized 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 even 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 types of affirmative defenses then believed 

appropriate for SIPs, for many of the same reasons 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 different 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 concluded 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 contain sufficient criteria to ensure such events were truly 

unavoidable and limited to the maximum extent possible, and it concluded that providing an affirmative 

defense for scheduled maintenance was inappropriate 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 February 2013 proposal and the September 2014 SNPR, the 

EPA has concluded that providing an affirmative defense 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, although the EPA’s 2007 action on the revisions to the Alaska SIP noted that 

18 AAC 50.240 did not make sufficiently clear that the 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 statement 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 injunctive relief (78 FR 12459 at 12526). 
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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 characterization that the EPA has only now changed its 

policies and interpretations of the CAA and is ignoring past precedent and states’ authorities or 

with the implication that the 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 relating to state policy, procedures, investigatory and enforcement 

authority are adequate to provide the necessary assurances sufficient to insure implementation of 

the SIP as required for federal approval...,” citing to 63 FR 44208, 44209 (August 18, 1998) 

(proposed action). 

Response: 

The EPA believes this topic is adequately addressed in the notice of final action and directs 

readers to section VIII.D.18, “Comments that the EPA’s initial approval of these deficient 

provisions, or subsequent indirect approval of them through action on other SIP submissions, 

establishes that these provisions meet CAA requirements.” 

Comment: 

The Alaska DEC stated that Alaska’s excess emissions provision in Alaska Admin. Code tit. 18 

§ 50.240(d) only provides relief for unavoidable events that cannot be prevented by careful 

planning and design. The Alaska DEC further asserted that the careful planning and design 

prerequisites equate to the “special emission limitations or other control measures or control 

techniques” that the EPA concludes are allowed under the CAA. Thus, the Alaska DEC 

concluded, Alaska’s careful planning and design requirement provides for continuous emissions 

reductions even during periods of startup and shutdown, and the fact that these limitations are 

imposed through Alaska’s excess emissions regulation 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. 
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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 the excess emissions could not have been avoided 

through reasonable design, better scheduling for maintenance, or better operation and 

maintenance practices. The Alaska DEC went on to note that these prerequisites essentially 

impose “special emission limitations or other control 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 analysis 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 (Ambient 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 quality 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 control of emissions that have a reasonable likelihood of causing or 

significantly contributing to ambient concentrations of one or more air pollutants that exceed an 

ambient air quality standard, maximum allowable 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 overriding ambient air quality 

protection remedy under Alaska Admin. Code tit. 18 § 50.201, continued the Alaska DEC, 

ensures that Alaska’s combination of SIP provisions is adequate to meet the state’s CAA 

section 110 obligations. 

Response: 

The EPA believes this topic is adequately addressed 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 engineering 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.” 

Comment: 

The Alaska DEC stated that regulation Alaska Admin. Code tit. 18 § 50.240 does not bar the 

EPA and citizens from seeking injunctive relief for excess emissions or penalties for avoidable 

excess emissions. 

The commenter went on to note that the statement in Alaska Admin. Code tit. 18 § 50.240(b) that 

the regulation does not limit the department’s power 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 emissions. 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’s 
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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 precludes the EPA from approving SIP provisions 

that provide any affirmative defense for violations due to excess emissions, it is no longer 

relevant whether the Alaska DEC’s determination that excess emissions are “unavoidable” 

under Alaska Admin. Code tit. 18 § 50.240 bars only the Alaska DEC from seeking penalties or 

also bars the EPA and citizens from seeking penalties and injunctive relief. 

In any event, although the EPA continues to believe that the use of interpretive 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 believes 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 interpret 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 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. 

With respect to penalties, the Alaska DEC’s letter states on two occasions 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 penalties for avoidable excess emissions—the 

regulation provides relief only from penalties deemed to be “unavoidable,” as that term is used 

in the regulation. To the extent the Alaska DEC intended to state instead that Alaska Admin. 

Code tit. 18 § 50.240(b) does not bar the EPA and citizens from seeking penalties for 

“unavoidable” excess emissions (as that term is used in the regulation), the Alaska DEC does 

not explain why the regulation discusses injunctive relief with respect to “the department” 

(second sentence in subsection (b)) but does not discuss the prohibition on penalties only with 

respect to “the department.” The EPA therefore continues to believe that 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 citizens that it cannot simply be 

clarified with an interpretive letter. 

In addition, the EPA disagrees that we have not previously expressed concern that Alaska 

Admin. Code tit. 18 § 50.240 could be interpreted to limit the EPA’s and citizens’ ability to 

enforce. In the EPA’s 2007 decision not to approve 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 requirements for SIP excess emission provisions, the EPA specifically 

stated, “Finally, 18 AAC 50.240 does not make clear that [the Alaska DEC’s] decision that the 
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116 

criteria for obtaining the affirmative 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 EPA’s interpretation of Alaska 

Admin. Code tit. 18 § 50.240 and that its provisions 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. Therefore, the Alaska DEC continues to oppose the 

EPA’s proposed findings that Alaska 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 seeking 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 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 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 commenters that stated the EPA misinterpreted the state’s SIP 

provision at issue in the supplemental proposal notice 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 limit enforcement actions that might be sought by the 

EPA or citizens. 

Response: 

As explained in the immediately preceding response, 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 parties 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 violations 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 structure of the CAA, including SIP provisions that 

are sufficiently unclear that a court could construe them to operate in this fashion. As the court 

concluded in the US Magnesium decision, the EPA’s SIP call authority includes the authority to 

direct states to clarify existing SIP provisions and it is “prudent” to do so in circumstances 
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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 that 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 Department of Environmental Quality 

(0360) 

Comment: 

The Idaho Department of Environmental Quality (Department) concurred with the EPA’s 

interpretation of Idaho Admin. Code r. 58.01.01.13112 at 78 FR 12537, where the EPA stated that 

this Idaho SIP provision appears to be an appropriate enforcement discretion provision. 

Response: 

The EPA acknowledges Idaho’s confirmation that Idaho Admin. Code r. 58.01.01.131 is a 

statement of enforcement discretion and that Idaho’s determination to forgo enforcement action 

does not preclude enforcement action by the EPA or citizens. 

2. Comment of parties other than the state on the Idaho SIP 

Comment: 

One commenter stated that the EPA’s denial 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 plain language of its regulation 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 would 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 interpretation 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. 
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118 

requires that the Idaho regulation to be revised to state more explicitly 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 petition 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 during certain SSM events was recently recodified 

and approved by the EPA at OAR 340-214-0350. The Oregon DEQ argued that OAR 340-214-

0350 is plainly a statement of enforcement discretion, 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 DEQ noted that there is no language in this 

provision suggesting that DEQ’s determination to forgo enforcement against a source would in 

any way preclude the EPA or the public from demonstrating that violations occurred and taking 

enforcement action. 

Response: 

The EPA acknowledges the Oregon DEQ’s confirmation that OAR 340-214-0350 is a statement 

of enforcement discretion and that the Oregon DEQ’s determination to forgo enforcement action 

against a source does not in any way preclude the EPA or citizens from demonstrating that 

violations occurred and taking enforcement action for civil penalties or injunctive relief. 

2. Comment of parties other than 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 changed since Sierra Club’s petition, it remains 

ambiguous and could be construed to preclude EPA or citizen enforcement. The commenter 

added that the EPA should require, at minimum, that Oregon clarify in the plain language of the 

regulations that this provision does not limit EPA or citizen enforcement. 

Response: 

As discussed in the proposed SIP call, the EPA believes that the current language of OAR 340-

214-0350 does not in any way suggest that the Department’s determination to forgo state 

enforcement against a source would preclude the EPA or the public from demonstrating that 

violations occurred or from taking enforcement action. Oregon has since concurred in the EPA’s 

interpretation. The EPA disagrees that the CAA requires that the Oregon regulation to be 
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119 

revised to expressly state that Oregon’s decision to forgo enforcement action is not binding on 

the EPA or citizens. 

d. Washington 

1. Comment of the Washington Department of Ecology (0442) 

Comment: 

The Washington Department of Ecology commented that the EPA’s position in the February 

2013 proposal fails to address the statistical nature of the NAAQS, 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 ambient standards by stating that the 

excess emissions have to result in a measured exceedance of a NAAQS rather than a modeled 

exceedance. This stated position, the Washington 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 eliminate the difficulty in showing noncompliance or compliance with 

current, statistical ambient air quality standards. The Washington 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 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”; section VIII.D.7, “Comments that the EPA 

failed to consider how excess emissions resulting from SSM exemptions would affect compliance 

with specific NAAQS, including NAAQS with different averaging periods 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 among commenters who expressed concern as to 

whether emission controls can be operated to curtail startup/shutdown emissions that occur in all 

situations. The Washington Department of Ecology contended that during the startup of 

emissions units, such as SCR on a combined cycle combustion turbine, emission controls are 

often not turned on until specific temperatures or operating rates 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 startup it is unavoidable to exceed a SIP emission 

standard or a NAAQS.” 
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Response: 

The EPA believes this topic is adequately addressed 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.” 

Comment: 

The Washington Department of Ecology was among 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 difficulty of establishing alternative emission 

limitations (AELs) or suggest other available control measures that would achieve the same 

result. The Washington Department of Ecology raised concerns with how AELs would be set, 

stating that reference method stack tests are often the only reliable way to determine pollution 

concentrations for most air pollutants but that such tests do not provide reliable results when 

conducted during other than steady-state conditions (such as startup and shutdown). 

Response: 

The EPA believes this topic is adequately addressed 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 limitations that apply during 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 practice standards in other rules as reasonable 

substitutes for AELs during startup and shutdown. The Washington Department of Ecology 

suggested that such work practice standard could be codified in individual NSR permits, or in the 

state's SIP, or both. 

Response: 

The EPA believes these topics are adequately addressed in the notice of final action and directs 

readers to section VII.B.3.c, “Comments that the EPA should ‘authorize’ states to replace SSM 

exemptions with ‘work practice’ standards developed 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 limitations and specific control technologies or 

work practices applicable during other modes of operation.” 

Comment: 

The Washington Department of Ecology stated that it is unreasonable to expect a state to include 

in its SIP an AEL for every source during startup and shutdown and the EPA should instead 
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provide that such AELs could be solely in the source’s permit. The Washington Department of 

Ecology noted that these AELs will likely vary from source to source so it is unlikely that one 

AEL will fit all sources, and the commenter believed that the process of revising the SIP each 

time a source-specific AEL during startup or shutdown is established 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 how 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 included 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 asserted that this process could 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 are 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 emission limitations for startup and shutdown at each individual 

source. The EPA notes that many states elect to create emissions limitations that apply to 

categories of sources, rather than source by source. The election to establish source-specific 

alternative emission limitations is, however, at the discretion of the state, so long as they are 

properly established, meet applicable stringency requirements for the type of SIP provision at 

issue, and are legally and practically enforceable. 

With respect to the commenter’s suggestion that 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 process, 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 suggestion to be that states should be able to 

relax or eliminate SIP emission limits through a permit process, without compliance with CAA 

requirements applicable to SIP revisions. As explained in the final notice for this action, the EPA 

believes that such an approach is inconsistent with CAA requirements for SIP provisions to the 

extent that it provides unbounded director’s discretion to alter 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 “variance” program or some other term, does not 

alter the underlying conceptual 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 evaluate the potential impacts of the exercise of 

directors’ discretion, the provision may be consistent with CAA requirements. In addition, such a 

program would need to assure that any deviations from the otherwise applicable SIP emission 

limitations on a source-by-source basis are developed to include sufficient public process. The 

EPA will need to evaluate any such SIP provision creating such a program on its merits. 
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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, “Comments that it is impossible, unreasonable or 

impractical for states to develop emission limitations that apply 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 before 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 issues 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 Department 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 fully 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 addressed in the notice of final action and directs 

readers to section VIII.D.14, “Comments that the 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 Washington’s regulations that the EPA’s SIP call 

would demand may be inconsistent with Revised Code of Washington § 70.94.431,13 in which 

the Washington legislature specifically directed the Washington Department 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 Department of Ecology would be unable to promulgate 

a regulation with respect to SSM provisions in SIPs that is consistent with both the CAA and the 

Revised Code of Washington § 70.94.431. That statute leaves to the Washington Department of 

Ecology the discretion to determine the “criteria and procedures for [the Washington 

Department of Ecology] and local air authorities to determine whether 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 – SSM 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 procedures 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 takes 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 obligation to promulgate a SIP call when the 

SIP provision at issue fails to meet CAA requirements.