Vol. 79 Wednesday, 

No. 180 September 17, 2014 

Part III 

Environmental Protection Agency 

40 CFR Part 52 

State Implementation Plans: Response to Petition for Rulemaking; Findings 

of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to 

Excess Emissions During Periods of Startup, Shutdown and Malfunction; 

Supplemental Proposal To Address Affirmative Defense Provisions in 

States Included in the Petition for Rulemaking and in Additional State; 

Proposed Rule 


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ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2012–0322; FRL–9914–41– 

OAR] 

RIN 2060–AR68 

State Implementation Plans: Response 

to Petition for Rulemaking; Findings of 

Substantial Inadequacy; and SIP Calls 

To Amend Provisions Applying to 

Excess Emissions During Periods of 

Startup, Shutdown and Malfunction; 

Supplemental Proposal To Address 

Affirmative Defense Provisions in 

States Included in the Petition for 

Rulemaking and in Additional States 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: In this supplemental notice of 

proposed rulemaking (SNPR), the 

Environmental Protection Agency (EPA) 

is supplementing and revising what it 

previously proposed as its response to a 

petition for rulemaking filed by the 

Sierra Club (the Petition). By notice 

published on February 22, 2013, the 

EPA proposed its response to the 

Petition’s requests concerning treatment 

of excess emissions in state rules by 

sources during periods of startup, 

shutdown or malfunction (SSM). 

Subsequent to that proposal, a federal 

court ruled that the Clean Air Act (CAA 

or Act) precludes authority of the EPA 

to create affirmative defense provisions 

applicable to private civil suits. As a 

result, in this SNPR the EPA is 

proposing to apply its revised 

interpretation of the CAA, but only with 

respect to affirmative defense provisions 

in state implementation plans (SIPs). 

For specific affirmative defense 

provisions identified in the Petition, we 

are revising the basis for the proposed 

findings of substantial inadequacy and 

SIP calls or proposing new findings of 

substantial inadequacy and SIP calls. 

For specific provisions that the EPA has 

independently identified, including SIP 

provisions in states not included in the 

February 2013 proposal notice, we are 

proposing new findings and SIP calls. 

DATES: Comments. Comments must be 

received on or before November 6, 2014. 

Public Hearing. The EPA will hold a 

public hearing on this SNPR on October 

7, 2014, in Washington, DC. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2012–0322, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• Email: a-and-r-docket@epa.gov. 

• Fax: (202) 566–9744. 

• Mail: Attention Docket ID No. EPA– 

HQ–OAR–2012–0322, U.S. 

Environmental Protection Agency, EPA 

Docket Center, Air Docket, Mail Code 

28221T, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460. Please 

include a total of two copies. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA Docket Center, 

William Jefferson Clinton West 

Building, Room 3334, 1301 Constitution 

Avenue NW., Washington, DC 20004, 

Attention Docket ID No. EPA–HQ– 

OAR–2012–0322. Such deliveries are 

only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2012– 

0322. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http://

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to the EPA without 

going through http://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, the EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

CD you submit. If the EPA cannot read 

your comment due to technical 

difficulties and cannot contact you for 

clarification, the EPA may not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters, avoid any form of encryption 

and be free of any defects or viruses. For 

additional information about the EPA’s 

public docket visit the EPA Docket 

Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to section I.C 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket. All documents in the docket 

are listed in the http://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at http://

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, EPA Docket Center, William 

Jefferson Clinton West Building, Room 

3334, 1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

Public Hearing: A public hearing will 

be held on October 7, 2014, at the 

William Jefferson Clinton West 

Building, Room 1117B, 1301 

Constitution Avenue, Washington, DC 

20460. The public hearing will convene 

at 9 a.m. (Eastern Standard Time) and 

continue until the earlier of 6 p.m. or 1 

hour after the last registered speaker has 

spoken. People interested in presenting 

oral testimony or inquiring as to 

whether a hearing is to be held should 

contact Ms. Pamela Long, Air Quality 

Planning Division, Office of Air Quality 

Planning and Standards (C504–01), U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC 27711, 

telephone (919) 541–0641, fax number 

(919) 541–5509, email address 

long.pam@epa.gov, at least 5 days in 

advance of the public hearing (see 

DATES). People interested in attending 

the public hearing must also call Ms. 

Long to verify the time, date and 

location of the hearing. The public 

hearing will provide interested parties 

the opportunity to present data, views 

or arguments concerning the proposed 

action (i.e., this SNPR specific to 

affirmative defense provisions in SIPs). 

The EPA will make every effort to 

accommodate all speakers who arrive 

and register. A lunch break is scheduled 

from 12:30 p.m. until 2 p.m. Because 

this hearing is being held at U.S. 

government facilities, individuals 

planning to attend the hearing should be 

prepared to show valid picture 

identification to the security staff in 

order to gain access to the meeting 

room. Please note that the REAL ID Act, 

passed by Congress in 2005, established 


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1The EPA respects the unique relationship 

between the U.S. government and tribal authorities 

and acknowledges that tribal concerns are not 

interchangeable with state concerns. Under the 

CAA and the EPA regulations, a tribe may, but is 

not required to, apply for eligibility to have a tribal 

implementation plan (TIP). For convenience, we 

refer to ‘‘air agencies’’ in this rulemaking 

collectively when meaning to refer in general to 

states, the District of Columbia, U.S. territories, 

local air permitting authorities and eligible tribes 

that are currently administering, or may in the 

future administer, EPA-approved implementation 

plans. The EPA notes that the petition under 

evaluation does not identify any specific provisions 

related to tribal implementation plans. We therefore 

refer to ‘‘state’’ or ‘‘states’’ rather than ‘‘air agency’’ 

Continued 

new requirements for entering federal 

facilities. These requirements took effect 

July 21, 2014. If your driver’s license is 

issued by Alaska, American Samoa, 

Arizona, Kentucky, Louisiana, Maine, 

Massachusetts, Minnesota, Montana, 

New York, Oklahoma or the state of 

Washington, you must present an 

additional form of identification to enter 

the federal building where the public 

hearing will be held. Acceptable 

alternative forms of identification 

include: Federal employee badges, 

passports, enhanced driver’s licenses, 

and military identification cards. In 

addition, you will need to obtain a 

property pass for any personal 

belongings you bring with you. Upon 

leaving the building, you will be 

required to return this property pass to 

the security desk. No large signs will be 

allowed in the building, cameras may 

only be used outside of the building and 

demonstrations will not be allowed on 

federal property for security reasons. 

The EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral comments 

and supporting information presented at 

the public hearing. Written comments 

on the proposed rule must be received 

by November 6, 2014. Commenters 

should notify Ms. Long if they will need 

specific equipment, or if there are other 

special needs related to providing 

comments at the hearing. The EPA will 

provide equipment for commenters to 

show overhead slides or make 

computerized slide presentations if we 

receive special requests in advance. Oral 

testimony will be limited to 5 minutes 

for each commenter. The EPA 

encourages commenters to provide the 

EPA with a copy of their oral testimony 

electronically (via email or CD) or in 

hard copy form. The hearing schedule, 

including lists of speakers, will be 

posted on the EPA’s Web site at http:// 

www.epa.gov/air/urbanair/sipstatus/. 

Verbatim transcripts of the hearings and 

written statements will be included in 

the docket for the rulemaking. The EPA 

will make every effort to follow the 

schedule as closely as possible on the 

day of the hearing; however, please plan 

for the hearing to run either ahead of 

schedule or behind schedule. 

FOR FURTHER INFORMATION CONTACT: 

Questions concerning this SNPR should 

be addressed to Ms. Lisa Sutton, U.S. 

EPA, Office of Air Quality Planning and 

Standards, State and Local Programs 

Group (C539–01), Research Triangle 

Park, NC 27711, telephone number (919) 

541–3450, email address: sutton.lisa@

epa.gov. 

If you have questions concerning the 

public hearing, please contact Ms. 

Pamela Long, U.S. Environmental 

Protection Agency, Office of Air Quality 

Planning and Standards, Air Quality 

Planning Division (C504–01), Research 

Triangle Park, NC 27711, telephone 

(919) 541–0641, fax number (919) 541– 

5509, email address: long.pam@epa.gov 

(preferred method for registering). 

SUPPLEMENTARY INFORMATION: For 

questions related to a specific SIP, 

please contact the appropriate EPA 

Regional Office: 

EPA 

Regional 

office 

Contact for regional office 

(person, mailing address, telephone number) State 

I ................. Alison Simcox, Environmental Scientist, EPA Region 1, 5 Post 

Office Square, Suite 100, Boston, MA 02109–3912, (617) 

918–1684.

Connecticut, Massachusetts, Maine, New Hampshire, Rhode Island and Vermont. 

II ................ Paul Truchan, EPA Region 2, 290 Broadway, 25th Floor, New 

York, NY 10007–1866, (212) 637–3711.

New Jersey, New York, Puerto Rico and Virgin Islands. 

III ............... Amy Johansen, EPA Region 3, 1650 Arch Street, Philadelphia, 

PA 19103–2029, (215) 814–2156.

District of Columbia, Delaware, Maryland, Pennsylvania, Virginia and West Virginia. 

IV ............... Joel Huey, EPA Region 4, Atlanta Federal Center, 61 Forsyth 

Street SW., Atlanta, GA 30303–8960, (404) 562–9104.

Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee. 

V ................ Christos Panos, Air and Radiation Division (AR–18J), EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604– 

3507, (312) 353–8328.

Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. 

VI ............... Alan Shar (6PD–L), EPA Region 6, Fountain Place 12th Floor, 

Suite 1200, 1445 Ross Avenue, Dallas, TX 75202–2733, 

(214) 665–6691.

Arkansas, Louisiana, New Mexico, Oklahoma and Texas. 

VII .............. Lachala Kemp, EPA Region 7, Air Planning and Development 

Branch, 11201 Renner Boulevard, Lenexa, KS 66219, (913) 

551–7214. Alternate contact is Ward Burns, (913) 551–7960.

Iowa, Kansas, Missouri and Nebraska. 

VIII ............. Adam Clark, Air Quality Planning Unit (8P–AR) Air Program, Office of Partnership and Regulatory Assistance, EPA Region 8, 

1595 Wynkoop Street, Denver, CO 80202–1129, (303) 312– 

7104.

Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming. 

IX ............... Lisa Tharp, EPA Region 9, Air Division, 75 Hawthorne Street 

(AIR–8), San Francisco, CA 94105, (415) 947–4142.

Arizona, California, Hawaii, Nevada and the Pacific Islands. 

X ................ Donna Deneen, Environmental Engineer, Office of Air, Waste 

and Toxics (AWT–107), EPA Region 10, 1200 Sixth Avenue, 

Suite 900, Seattle, WA 98101, (206) 553–6706.

Alaska, Idaho, Oregon and Washington. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

rule include states, U.S. territories, local 

authorities and eligible tribes that are 

currently administering, or may in the 

future administer, EPA-approved 

implementation plans (‘‘air agencies’’).1


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or ‘‘air agencies’’ when meaning to refer to one, 

some or all of the 39 states identified in the Petition 

or other states identified by the EPA in this SNPR. 

We also use ‘‘state’’ or ‘‘states’’ rather than ‘‘air 

agency’’ or ‘‘air agencies’’ when quoting or 

paraphrasing the CAA or other document that uses 

that term even when the original referenced passage 

may have applicability to tribes as well. 

2The specific SIPs that include affirmative 

defense provisions identified by the EPA 

independently are listed under section II.B of this 

SNPR (see table). Furthermore, in comments 

received on the February 2013 proposal notice, a 

commenter brought to the EPA’s attention one 

affirmative defense provision in a SIP, that of Texas. 

In the rulemaking docket, the comment letter may 

be found at EPA–HQ–OAR–2012–0322–0621. 

The EPA’s action on the Petition is 

potentially of interest to all such entities 

because the EPA is evaluating issues 

related to basic CAA requirements for 

SIPs. Through this rulemaking, the EPA 

is both clarifying and applying its 

interpretation of the CAA with respect 

to SIP provisions applicable to excess 

emissions during SSM events in general. 

In addition, in the final action based on 

this supplemental proposal, the EPA 

may find specific SIP provisions in 

states identified either in the Petition or 

by the EPA independently to be 

substantially inadequate to meet CAA 

requirements, pursuant to CAA section 

110(k)(5), and thus those states will 

potentially be affected by this 

rulemaking directly.2 For example, if a 

state’s existing SIP includes an 

affirmative defense provision that 

would purport to alter the jurisdiction 

of the federal courts to assess monetary 

penalties for violations of CAA 

requirements, then the EPA may 

determine that the SIP provision is 

substantially inadequate because the 

provision is inconsistent with 

fundamental requirements of the CAA. 

This rule may also be of interest to the 

public and to owners and operators of 

industrial facilities that are subject to 

emission limits in SIPs, because it may 

require changes to state rules applicable 

to excess emissions. When finalized, 

this action will embody the EPA’s 

updated SSM Policy for all SIP 

provisions relevant to excess emissions 

during SSM events. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this SNPR 

will be available on the World Wide 

Web. Following signature by the EPA 

Assistant Administrator, a copy of this 

SNPR will be posted on the EPA’s Web 

site, under ‘‘State Implementation Plans 

to Address Emissions During Startup, 

Shutdown and Malfunction,’’ at http:// 

www.epa.gov/air/urbanair/sipstatus. In 

addition to this notice, other relevant 

documents are located in the docket, 

including a copy of the Petition and a 

copy of the February 2013 proposal 

notice. 

C. What should I consider as I prepare 

my comments? 

1. Submitting CBI. Do not submit this 

information to the EPA through http:// 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a CD that you mail to the 

EPA, mark the outside of the CD as CBI 

and then identify electronically within 

the CD the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2012–0322. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

D. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. What should I consider as I prepare my 

comments? 

D. How is the preamble organized? 

E. What is the meaning of key terms used 

in this notice? 

II. Overview of This SNPR 

A. How does this notice supplement or 

revise the EPA’s already proposed 

rulemaking to respond to the Petition? 

B. To which air agencies does this SNPR 

apply and why? 

C. What is the EPA proposing for any state 

that receives a finding of substantial 

inadequacy and a SIP call? 

D. What are potential impacts on affected 

states and sources? 

III. Background for This SNPR 

A. What did the Petitioner request? 

B. What did the EPA previously propose in 

this rulemaking with respect to 

affirmative defense provisions in SIPs? 

C. What events necessitated this SNPR? 

IV. What is the EPA proposing through this 

SNPR in response to the Petitioner’s 

request for rescission of the EPA policy 

on affirmative defense provisions? 

A. Petitioner’s Request 

B. The EPA’s Proposed Revised Response 

V. Revised SSM Policy on Affirmative 

Defense Provisions in SIPs 

VI. Legal Authority, Process and Timing for 

SIP Calls 

VII. What is the EPA proposing through this 

SNPR for each of the specific affirmative 

defense provisions identified in the 

Petition or identified independently by 

the EPA? 

A. Overview of the EPA’s Evaluation of 

Specific Affirmative Defense SIP 

Provisions 

B. Affected States in EPA Region III 

1. District of Columbia 

2. Virginia 

3. West Virginia 

C. Affected States in EPA Region IV 

1. Georgia 

2. Mississippi 

3. South Carolina 

D. Affected States in EPA Region V 

1. Illinois 

2. Indiana 

3. Michigan 

E. Affected States and Local Jurisdictions 

in EPA Region VI 

1. Arkansas 

2. New Mexico 

3. New Mexico: Albuquerque-Bernalillo 

County 

4. Texas 

F. Affected State in EPA Region VIII: 

Colorado 

1. Petitioner’s Analysis 

2. The EPA’s Prior Proposal 

3. The EPA’s Revised Proposal 

G. Affected States and Local Jurisdictions 

in EPA Region IX 

1. Arizona 

2. Arizona: Maricopa County 

3. California: Eastern Kern Air Pollution 

Control District 

4. California: Imperial County Air 

Pollution Control District 

5. California: San Joaquin Valley Air 

Pollution Control District 


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H. Affected States and Local Jurisdictions 

in EPA Region X 

1. Alaska 

2. Washington 

3. Washington: Energy Facility Site 

Evaluation Council 

4. Washington: Southwest Clean Air 

Agency 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

L. Judicial Review 

IX. Statutory Authority 

E. What is the meaning of key terms 

used in this notice? 

For the purpose of this notice, the 

following definitions apply unless the 

context indicates otherwise: 

The terms Act or CAA or the statute 

mean or refer to the Clean Air Act. 

The term affirmative defense means, 

in the context of an enforcement 

proceeding, a response or defense put 

forward by a defendant, regarding 

which the defendant has the burden of 

proof, and the merits of which are 

independently and objectively 

evaluated in a judicial or administrative 

proceeding. The term affirmative 

defense provision means more 

specifically a state law provision in a 

SIP that specifies particular criteria or 

preconditions that, if met, would 

purport to preclude a court from 

imposing monetary penalties or other 

forms of relief for violations of SIP 

requirements in accordance with CAA 

section 113 or CAA section 304. 

The term Agency means or refers to 

the EPA. When not capitalized, this 

term refers to an agency in general and 

not specifically to the EPA. 

The terms air agency and air agencies 

mean or refer to states, the District of 

Columbia, U.S. territories, local air 

permitting authorities with delegated 

authority from the state, and tribal 

authorities with appropriate CAA 

jurisdiction. 

The term automatic exemption means 

a generally applicable provision in a SIP 

that would provide that if certain 

conditions existed during a period of 

excess emissions, then those 

exceedances would not be considered 

violations of the applicable emission 

limitations. 

The term director’s discretion 

provision means, in general, a regulatory 

provision that authorizes a state 

regulatory official unilaterally to grant 

exemptions or variances from applicable 

emission limitations or control 

measures, or to excuse noncompliance 

with applicable emission limitations or 

control measures, which would be 

binding on EPA and the public, in spite 

of SIP provisions that would otherwise 

render such conduct by the source a 

violation. 

The term EPA refers to the United 

States Environmental Protection 

Agency. 

The term excess emissions means the 

emissions of air pollutants from a source 

that exceed any applicable SIP emission 

limitations. 

The term malfunction means a 

sudden and unavoidable breakdown of 

process or control equipment. 

The term NAAQS means national 

ambient air quality standard or 

standards. These are the national 

primary and secondary ambient air 

quality standards that the EPA 

establishes under CAA section 109 for 

criteria pollutants for purposes of 

protecting public health and welfare. 

The term Petition refers to the petition 

for rulemaking titled, ‘‘Petition to Find 

Inadequate and Correct Several State 

Implementation Plans under Section 

110 of the Clean Air Act Due to Startup, 

Shutdown, Malfunction, and/or 

Maintenance Provisions,’’ filed by the 

Sierra Club with the EPA Administrator 

on June 30, 2011. 

The term Petitioner refers to the Sierra 

Club. 

The term shutdown means, generally, 

the cessation of operation of a source for 

any reason. 

The term SIP means or refers to a 

State Implementation Plan. Generally, 

the SIP is the collection of state statutes 

and regulations approved by the EPA 

pursuant to CAA section 110 that 

together provide for implementation, 

maintenance and enforcement of a 

national ambient air quality standard (or 

any revision thereof) promulgated under 

section 109 for any air pollutant in each 

air quality control region (or portion 

thereof) within a state. In some parts of 

this notice, statements about SIPs in 

general would also apply to tribal 

implementation plans in general even 

though not explicitly noted. 

The term SNPR means or refers to this 

supplemental notice of proposed 

rulemaking. 

The term SSM refers to startup, 

shutdown or malfunction at a source. It 

does not include periods of 

maintenance at such a source. An SSM 

event is a period of startup, shutdown 

or malfunction during which there are 

exceedances of the applicable emission 

limitations and thus excess emissions. 

The term SSM Policy refers to the 

cumulative guidance that the EPA has 

issued concerning its interpretation of 

CAA requirements with respect to 

treatment of excess emissions during 

periods of startup, shutdown and 

malfunction at a source. The most 

comprehensive statement of the EPA’s 

SSM Policy prior to this proposed 

rulemaking is embodied in a 1999 

guidance document discussed in more 

detail in this proposal. This specific 

guidance document is referred to as the 

1999 SSM Guidance. When finalized, 

this action will embody the EPA’s 

updated SSM Policy for all SIP 

provisions relevant to excess emissions 

during SSM events. 

The term startup means, generally, 

the setting in operation of a source for 

any reason. 

II. Overview of This SNPR 

A. How does this notice supplement or 

revise the EPA’s already proposed 

rulemaking to respond to the Petition? 

By notice published on February 22, 

2013 (78 FR 12459), we proposed to take 

action on a petition for rulemaking that 

the Sierra Club (the Petitioner) filed 

with the EPA Administrator on June 30, 

2011 (the Petition). In that February 

2013 proposal notice, we described and 

proposed the EPA’s response to each of 

the Petition’s three interrelated requests 

concerning the treatment of excess 

emissions from sources during periods 

of SSM in provisions in SIPs. Among 

other requests, the Petitioner requested 

that the EPA rescind its SSM Policy 

element interpreting the CAA to allow 

SIPs to include affirmative defense 

provisions for violations due to excess 

emissions during any type of SSM 

events because the Petitioner contended 

there is no legal basis for such 

provisions in SIPs. 

In this SNPR, we are supplementing 

and revising what we earlier proposed 

as our response to the Petitioner’s 

requests, but only to the extent the 

requests narrowly concern affirmative 

defense provisions in SIPs. We are not 

revising or seeking further comment on 

any other aspects of the February 2013 

proposed action. 


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3The state has the primary responsibility to 

implement SIP obligations, pursuant to CAA 

section 107(a). However, as CAA section 

110(a)(2)(E) allows, a state may authorize and rely 

First, based on reexamination of 

statutory requirements in light of a 

recent court decision, we are revising 

our interpretation of the CAA 

concerning the issue of affirmative 

defense provisions in SIPs. Accordingly 

we propose to grant the Petitioner’s 

overarching request that the EPA 

rescind its SSM Policy element that 

interpreted the CAA to allow affirmative 

defense provisions in SIPs. Our 

proposal to grant the Petition and to 

rescind our SSM Policy with respect to 

allowing affirmative defenses in SIPs is 

a revision of the position we previously 

proposed in the February 2013 proposal 

notice (i.e., to grant in part and to deny 

in part the Petition on this request). The 

basis for our proposed revision of the 

SSM Policy with respect to affirmative 

defense provisions in SIPs and our 

revised response to the Petition on this 

issue is provided in more detail in 

section IV of this SNPR. 

Second, we propose to grant the 

Petitioner’s request that the EPA apply 

a revised interpretation to, and 

effectuate the removal of, specific 

existing affirmative defense provisions 

in SIPs identified by the Petitioner as 

inconsistent with the CAA. 

Accordingly, we propose to grant the 

Petition with respect to specific existing 

affirmative defense provisions in the 

SIPs of 13 states. For all 13 of these 

states, we have already proposed SIP 

calls for one or more SIP provisions in 

our February 2013 proposal notice, but 

note that we did not at that time 

propose SIP calls for all affirmative 

defense provisions in those states 

because some of the provisions 

appeared to comply with our policy at 

the time of the proposal. What we are 

proposing in this SNPR is to grant the 

Petition with respect to all of the 

identified affirmative defenses in these 

states. 

Third, in addition to the specific 

affirmative defense provisions identified 

by the Petitioner, the EPA has 

independently identified other 

affirmative defense provisions in SIPs 

and is proposing in this SNPR to take 

action with respect to these SIP 

provisions as well. The newly identified 

affirmative defense provisions are found 

in six states’ SIPs. For two of the states 

whose SIPs include newly identified 

affirmative defense provisions, 

California and Texas, we did not 

propose a SIP call in the February 2013 

proposal notice, as those states were not 

identified in the Petition. For the other 

four states (New Mexico, South 

Carolina, Washington and West 

Virginia), we did propose a SIP call in 

the February 2013 proposal notice for 

one or more SIP provisions, but at that 

time we did not propose a SIP call for 

all affirmative defense provisions 

identified in the Petition or for any 

affirmative defense provisions that were 

not identified in the Petition. The EPA 

is now including these six states’ 

affirmative defense provisions in order 

to provide comprehensive guidance to 

all states concerning affirmative defense 

provisions in SIPs and to avoid 

confusion that may arise due to recent 

court decisions relevant to such 

provisions under the CAA. Section VII 

of this SNPR presents the EPA’s analysis 

of each of the affirmative defense SIP 

provisions at issue. 

Fourth, for each of the states where 

the EPA proposes to grant the Petition 

concerning specific affirmative defense 

provisions or to take action on such 

provisions that EPA has independently 

identified, the Agency also proposes to 

find that the existing SIP provision at 

issue is substantially inadequate to meet 

CAA requirements and thus under CAA 

authority proposes to issue a ‘‘SIP call’’ 

with respect to that SIP provision. For 

those states for which the EPA 

promulgates a final finding of 

substantial inadequacy and a SIP call, 

the EPA has in the February 2013 notice 

proposed a schedule allowing the states 

18 months within which to submit a 

corrective SIP revision. In section II.C of 

this SNPR, the EPA accordingly 

proposes that this schedule apply to all 

SIP provisions identified as 

substantially inadequate in this 

supplemental proposal. 

What EPA proposes in this SNPR 

supersedes the February 2013 proposal 

only insofar as the SNPR supplements 

or revises the February 2013 proposal 

notice with respect to the issues related 

to affirmative defense provisions in 

SIPs. After evaluation of public 

comment on this SNPR, the EPA intends 

to complete its action on the Petition in 

one final action, addressing together the 

issues discussed in the February 2013 

proposal notice and in this SNPR. 

This action provides the EPA an 

opportunity to invite public comment 

on our SSM Policy specific to 

affirmative defenses. In this SNPR, the 

EPA is supplementing and revising its 

proposed responses to the issues in the 

Petition only to the extent they concern 

affirmative defenses in SIPs, and the 

EPA solicits comment on its proposed 

responses. We note that an opportunity 

to comment on the EPA’s proposed 

responses to other issues raised in the 

Petition was provided earlier, in the 

comment period initiated by our 

February 2013 proposal notice. 

Therefore, comments received on this 

SNPR will be considered germane only 

to the extent they pertain specifically to 

the subject of affirmative defenses in 

SIPs. The EPA does not intend to 

consider any further comments related 

to other aspects of the prior proposal, as 

those other aspects are not being 

reopened in this supplemental proposal. 

Moreover, because the EPA’s 

interpretation of the CAA with respect 

to the legal basis for affirmative defense 

provisions in SIPs has changed, the EPA 

does not intend to respond to comments 

previously submitted on the February 

2013 proposal notice to the extent they 

apply to issues related to affirmative 

defense provisions in SIPs generally, or 

to issues related to specific affirmative 

defense provisions identified by the 

Petitioner, as those comments will be 

moot if the EPA finalizes its action as 

discussed in this SNPR. 

Through our proposed rulemaking 

action, which includes the February 

2013 proposal notice and this SNPR, the 

EPA is clarifying, restating and revising 

its SSM Policy. When finalized, this 

action will embody the EPA’s updated 

SSM Policy for all SIP provisions 

relevant to excess emissions during 

SSM events. The final action will also 

clarify for the affected states how they 

can resolve the identified deficiencies in 

their SIPs, as well as provide all air 

agencies guidance on SSM issues as 

they further develop their SIPs in the 

future. 

B. To which air agencies does this SNPR 

apply and why? 

In general, the EPA’s action on the 

Petition in this rulemaking may be of 

interest to all air agencies because the 

EPA is significantly clarifying, restating 

and revising its longstanding SSM 

Policy with respect to what the CAA 

requires concerning SIP provisions 

relevant to excess emissions during 

periods of startup, shutdown and 

malfunction. For example, the EPA is 

proposing in this SNPR to grant the 

Petitioner’s request that the EPA rescind 

its interpretation of the CAA that would 

allow affirmative defense provisions in 

SIPs. 

More specifically, this SNPR is 

directly relevant to the states for which 

we are now proposing SIP calls on the 

basis that those SIP provisions are 

inconsistent with CAA requirements 

because they include affirmative 

defenses. The EPA is proposing SIP 

calls with respect to affirmative defense 

SIP provisions in each of the 17 states 

(for provisions applicable in 23 

statewide and local jurisdictions 3 and 


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on a local or regional government, agency or 

instrumentality to carry out the SIP or a portion of 

the SIP within its jurisdiction. As a result, some of 

the SIP provisions at issue in this rulemaking apply 

to specific portions of a state. Thus, in certain 

states, submission of a corrective SIP revision may 

involve rulemaking in more than one jurisdiction. 

4See, Approval and Promulgation of 

Implementation Plans; Kentucky; Approval of 

Revisions to the Jefferson County Portion of the 

Kentucky SIP; Emissions During Startups, 

Shutdowns, and Malfunctions, 79 FR 33101 (June 

10, 2014). 

no tribal areas) that show either ‘‘Grant’’ 

or ‘‘SIP call’’ as the proposed action 

under table 1, ‘‘List of States With 

Affirmative Defense SIP Provisions for 

Which the EPA Proposes to Grant the 

Petition or to Address Such Provisions 

Identified by the EPA.’’ 

TABLE 1—LIST OF STATES WITH SIP AFFIRMATIVE DEFENSE PROVISIONS FOR WHICH THE EPA PROPOSES TO GRANT

THE PETITION OR TO ADDRESS SUCH PROVISIONS IDENTIFIED BY THE EPA 

EPA region State 

Proposed action a with respect to affirmative defenses applicable 

. . . for malfunctions? . . . for startup, shutdown or other modes? 

III ........... District of Columbia ........ Grant ........................................................................ Not applicable. 

Virginia ............................ Grant ........................................................................ Not applicable. 

West Virginia .................. SIP call (new) ........................................................... Not applicable. 

IV ........... Georgia ........................... Grant ........................................................................ Grant. 

Mississippi ...................... Grant ........................................................................ Grant. 

South Carolina ................ SIP call (new) ........................................................... Not applicable. 

V ............ Illinois .............................. Grant ........................................................................ Not applicable. 

Indiana ............................ Grant ........................................................................ Not applicable.

Michigan ......................... Not applicable .......................................................... Grant. 

VI ........... Arkansas ......................... Grant ........................................................................ Not applicable. 

New Mexico .................... Grant (for state) and SIP call (new for Albuquerque-Bernalillo County).Grant (for state) and SIP call (new for Albuquerque-Bernalillo County). 

Texas .............................. SIP call (new) ........................................................... Not applicable. 

VIII ......... Colorado ......................... Grant (change from February 2013 proposal to 

Deny).

Grant. 

IX ........... Arizona ............................ Grant (for state and for Maricopa County; change 

from February 2013 proposal to Deny).

Grant (for state and for Maricopa County). 

California ......................... SIP call (new for Eastern Kern APCD, new for Imperial County APCD and new for San Joaquin 

Valley APCD).

Not applicable. 

X ............ Alaska ............................. Grant ........................................................................ Grant. 

Washington ..................... Grant (for state) and SIP call (new for Energy Facility Site Evaluation Council and new for Southwest Clean Air Agency).Grant (for state) and SIP call (new for Energy Facility Site Evaluation Council and new for Southwest Clean Air Agency). 

aThe proposed action under the SNPR is the same action as proposed in February 2013 unless noted in this table to be either new or a 

change. The entry ‘‘SIP call’’ indicates that the affirmative defense provision was identified by the EPA independently and was not included in the 

Petition. 

For each state for which the proposed 

action in this SNPR is either ‘‘Grant’’ or 

‘‘SIP call,’’ the EPA proposes to find that 

specific affirmative defense provisions 

in the state’s SIP are substantially 

inadequate to meet CAA requirements 

for the reason that these provisions are 

inconsistent with the CAA. 

For each state for which the proposed 

action on the Petition is either ‘‘Grant’’ 

or ‘‘SIP call,’’ the EPA is further 

proposing in this SNPR to call for a SIP 

revision as necessary to remove the 

identified affirmative defense provisions 

from the SIP at issue. The EPA’s revised 

proposal under this SNPR concerning 

affirmative defense provisions in 

specific states’ SIPs is summarized in 

section VII of this SNPR. 

The SIP calls proposed in this SNPR 

apply only to those specific provisions, 

and the scope of each of the SIP calls 

would be limited to those provisions. 

This SNPR proposes SIP calls specific to 

affirmative defense provisions in 17 

states. The 17 states include two states 

for which we are newly proposing SIP 

calls: California and Texas. For the 

remaining 15 states, we already 

proposed SIP calls in the February 2013 

proposal notice for one or more SSMrelated provisions, although in this 

SNPR we are in some cases proposing 

SIP calls for additional affirmative 

defense provisions and in some cases 

proposing SIP calls on a basis that has 

changed from that of our earlier 

proposal. 

For Jefferson County, Kentucky, the 

affirmative defense provisions for which 

we proposed in February 2013 to grant 

the Petition were subsequently removed 

from the SIP.4 Thus, under this SNPR 

we are proposing instead to deny the 

Petition, and we are no longer proposing 

a SIP call with respect to affirmative 

defense provisions for this area because 

the revision has already been made by 

the state and approved into the SIP by 

the EPA. Note, however, that we already 

proposed a SIP call for Kentucky, for 

other provisions (i.e., provisions not 

concerning affirmative defenses in 

Jefferson County), and this SNPR does 

not change what we proposed in the 

February 2013 proposal notice for the 

other Kentucky SIP provisions. 

C. What is the EPA proposing for any 

state that receives a finding of 

substantial inadequacy and a SIP call? 

If the EPA finalizes a finding of 

substantial inadequacy and issues a SIP 

call for any state, the EPA’s final action 

will establish a deadline by which the 

state must make a SIP submission to 

rectify the deficiency. Pursuant to CAA 

section 110(k)(5), the EPA has authority 

to set a SIP submission deadline that 

does not exceed 18 months from the 

date the Agency notifies the state of the 

inadequacy. The EPA intends to 

disseminate notice of any final findings 

of substantial inadequacy and the 

issuance of any SIP call promptly after 

the Administrator signs the final notice. 

The EPA has already proposed to 

provide the full 18-month period 


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permissible by statute to give states 

sufficient time to make appropriate SIP 

revisions following their own SIP 

development process. Such a schedule 

will allow for the necessary SIP 

development process to correct the 

deficiencies yet still achieve the 

necessary SIP improvements as 

expeditiously as practicable. 

Accordingly, the EPA is proposing to 

establish the due date for the state to 

respond to the SIP call to be 18 months 

after the date on which the 

Administrator signs the notice and 

disseminates it to the states. If, for 

example, the EPA’s final findings are 

signed and disseminated in May 2015, 

then the SIP submission deadline for 

each of the states subject to the final SIP 

call would fall 18 months later, in 

November 2016. Thereafter, the EPA 

will review the adequacy of that new 

SIP submission in accordance with the 

CAA requirements of sections 110(a), 

110(k), 110(l) and 193, including the 

EPA’s interpretation of the CAA 

reflected in the SSM Policy as clarified 

and updated through this rulemaking, in 

notice-and-comment rulemaking on the 

individual SIP submissions. 

D. What are potential impacts on 

affected states and sources? 

The EPA’s February 2013 proposal 

notice included an explanation of the 

potential impacts on states and sources 

of the SIP calls proposed in that notice. 

That explanation is repeated here, with 

additions to encompass and highlight 

the potential impacts of the proposed 

further revision of the SSM Policy to 

disallow affirmative defense provisions 

for malfunctions, the proposed revisions 

to the earlier-proposed SIP calls and the 

additional SIP calls proposed in this 

notice. The issuance of a SIP call would 

require an affected state to take one or 

more actions to revise its SIP. These 

actions are described below, followed 

by a description of how those actions by 

the state may, in turn, affect sources. 

The states that would receive a SIP call 

will in general have options as to 

exactly how to revise their SIPs. 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. The EPA’s interpretation of those 

requirements will be embodied in the 

revised SSM Policy, which will be 

stated in the Federal Register notice for 

the final action in this rulemaking. 

If the final SIP call identifies an 

automatic exemption provision in a SIP 

as contrary to the CAA, that provision 

would have to be removed entirely. An 

affected source could no longer depend 

on the automatic exemption to avoid all 

liability for excess emissions. If the final 

SIP call identifies an affirmative defense 

provision in a SIP as contrary to the 

CAA, that provision would have to be 

removed entirely. An affected source 

could no longer depend on the 

affirmative defense to shield it from 

monetary penalties assessed by a court 

for excess emissions; however, even in 

the absence of such affirmative defense 

provision in the SIP, a court may 

nevertheless decide not to assess 

monetary penalties in light of the effort 

by the source to avoid and/or minimize 

the excess emissions. Some other 

provisions, for example a problematic 

enforcement discretion provision, could 

be either removed entirely from the SIP 

or retained if revised appropriately in 

accordance with the EPA’s 

interpretation of the CAA as described 

in the EPA’s SSM Policy restatement in 

the Federal Register notice for the final 

rulemaking. The EPA notes that if a 

state removes a SIP-called provision that 

pertains to the exercise of enforcement 

discretion rather than amending the 

provision to remove any implication 

that the provision limits EPA or citizen 

suits, this removal would not bar the 

ability of the state to apply discretion in 

its own enforcement program but rather 

would make the exercise of such 

discretion case-by-case in nature. 

In addition, affected states may 

choose to consider reassessing 

particular emission limitations, for 

example to determine whether those 

limits can be revised such that wellmanaged emissions during planned 

operations such as startup and 

shutdown would not exceed the revised 

emission limitation, while still 

protecting air quality. Such a revision of 

an emission limitation may need to be 

submitted as a SIP revision for EPA 

approval if the existing limit to be 

changed is already included in the SIP 

or if the existing SIP relies on the 

particular existing emission limit to 

meet a CAA requirement. In such 

instances, the EPA would review the 

SIP revision for consistency with all 

applicable CAA requirements. A state 

that chooses to revise particular 

emission limitations, in addition to 

removing the aspect of the existing 

provision that is inconsistent with CAA 

requirements, could include those 

revisions in the same SIP submission 

that addresses the SSM provisions 

identified in the SIP call, or it could 

submit them separately. 

The implications for a regulated 

source in a given state, in terms of 

decisions it may make to change its 

equipment or practices in order to 

operate with emissions that comply 

with the revised SIP, will depend on the 

nature and frequency of the source’s 

SSM events and how the state has 

chosen to revise the SIP to address 

excess emissions during SSM events. 

The EPA recognizes that after all the 

responsive SIP revisions are in place 

and are being implemented by the 

states, some sources may be required by 

the state to, or may have strong business 

reasons to, modify their physical 

equipment or operating practices. These 

changes could be aimed at improving 

the effectiveness of the emission control 

systems when operating as designed 

during startup and shutdown, 

increasing the durability of components 

to reduce the occurrence of 

malfunctions, and/or improving 

monitoring systems to detect and 

manage malfunctions promptly. If a 

state merely removes an exemption, 

affirmative defense provision, or 

impermissible enforcement discretion 

provision, an affected source may need 

to, or may rationally choose to, make 

changes of these types to better control 

emissions so as to comply with existing 

emission limits continuously and 

thereby reduce the risk of enforcement 

action. If the state establishes alternative 

emission limits for startup and 

shutdown operation, the source will 

need to meet these limits, but the 

required changes by the source, if any, 

could be less extensive and cost less. 

Because of the diversity of the SIP 

provisions identified in our February 

2013 proposal notice and in this 

supplemental proposal, the diversity of 

potentially affected sources, the 

unknown nature of the states’ responses 

to the SIP calls, and the fact that 

because of existing automatic 

exemptions many instances of excess 

emissions have not routinely been 

reported to air agencies or the EPA, the 

EPA is unable to estimate the number, 

nature and overall cost of the changes 

that emission sources may ultimately 

make as an indirect result of the 

proposed SIP calls. To date, the EPA’s 

review of the public comments received 

on the February 2013 proposal indicates 

that the information in those public 

comments is insufficient to allow the 

EPA to make such estimates. 

This supplemental proposal concerns 

only affirmative defense provisions. The 

EPA’s longstanding interpretation of the 

CAA as reflected in the existing SSM 

Policy does not allow a SIP to contain 

a director’s discretion provision for 

excess emissions during SSM events 

including malfunctions, an automatic 

exemption for excess emissions during 

SSM events including malfunctions, or 

an enforcement discretion provision 

that purports to restrict citizen suits or 

federal personnel. The EPA is not 


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5The term ‘‘impermissible provision’’ as used 

throughout this SNPR is generally intended to refer 

to a SIP provision that the EPA believes to be 

inconsistent with requirements of the CAA. As 

described later in this SNPR (see section VII.A), the 

EPA is proposing to find a SIP ‘‘substantially 

inadequate’’ to meet CAA requirements where the 

EPA determines that a specific SIP provision is 

impermissible under the CAA. 

proposing to change those longstanding 

aspects of the SSM Policy. In our 

February 2013 proposal notice, we 

proposed to interpret the CAA to 

disallow affirmative defense provisions 

applicable to startup and shutdown, and 

in this SNPR we are proposing to 

interpret the CAA to further disallow 

affirmative defense provisions 

applicable to malfunctions. However, a 

state that receives a SIP call that 

includes a requirement to remove an 

affirmative defense for excess emissions 

would retain its ability to apply 

discretion in its enforcement program. 

Such enforcement discretion could be 

exercised case-by-case, or the SIP may 

include a provision that directs state 

personnel in the exercise of enforcement 

discretion. The criteria in an 

enforcement discretion provision could 

resemble the criteria previously 

recommended by the EPA for an 

affirmative defense provision for 

malfunctions. The enforcement 

discretion provision cannot apply to 

anyone other than state personnel. For 

example, the enforcement decisions of 

state personnel cannot define what is or 

is not a violation and cannot purport to 

limit or bar the exercise of enforcement 

discretion by the EPA or other parties 

pursuant to the citizen suit provision. 

An affected state could include an 

appropriate enforcement discretion 

provision in the same SIP submission 

that addresses the SSM provisions 

identified in the SIP call, or it could 

submit it separately. 

Similar to the dependent nature of the 

potential impacts of our proposals in the 

aggregate as described above, the 

implications of the specific change 

being proposed in this notice—to 

disallow affirmative defense provisions 

for malfunctions—for a regulated source 

in a given state, in terms of whether and 

how the source would potentially have 

incentives to change its equipment or 

practices, will depend on the nature and 

frequency of the source’s malfunction 

events and on how the state has chosen 

to revise the SIP to address excess 

emissions during malfunction events. 

After responsive SIP revisions are in 

place and are being implemented by the 

states, some sources may have strong 

incentives to take steps to increase the 

durability of components and 

monitoring systems to detect and 

manage malfunctions promptly, as a 

court may take such steps into 

consideration when determining a 

remedy should there be an enforcement 

action against excess emissions that 

have occurred during a malfunction. For 

the same reasons as cited above, the 

EPA is unable to estimate the number, 

nature and overall cost of the changes 

that emission sources may ultimately 

make as an indirect result of the revised 

and additional SIP calls proposed in 

this SNPR. 

The EPA Regional Offices will work 

with states to help them understand 

their options and the potential 

consequences for sources as the states 

prepare their SIP revisions in response 

to the SIP calls. 

The EPA believes that among the 

impacts on states and their residents of 

the SIP calls proposed in the February 

2013 proposal notice and in this SNPR 

will be reduced aggregate emissions 

from industrial sources and improved 

air quality. For the same reasons that we 

are unable to estimate the number, 

nature and overall cost of the changes 

that sources may ultimately make as an 

indirect result of the proposed SIP calls, 

we are unable to estimate the total 

emission reduction that will be 

achieved for any particular pollutant or 

how those reductions will be distributed 

across the affected states and 

communities. The EPA believes that it 

is obligated and authorized to issue the 

proposed SIP calls to remove affirmative 

defense provisions even though the EPA 

is unable to estimate the number, 

nature, cost and resulting emission 

reductions that will indirectly result 

from the removal of such provisions 

from the affected SIPs. 

III. Background for This SNPR 

A. What did the Petitioner request? 

The Petitioner submitted the Petition 

to the EPA on June 30, 2011. In the 

Petition, the Petitioner requested that 

the EPA address various types of alleged 

deficiencies in the Agency’s SSM 

Policy. The SSM Policy provides EPA 

guidance to states with respect to SIP 

provisions that apply to excess 

emissions from sources that occur 

during SSM events. As described in the 

February 2013 proposal notice, the 

Petitioner included three interrelated 

overarching requests concerning the 

treatment in SIPs of excess emissions 

from sources during SSM events. In 

addition, the Petitioner requested that 

the EPA evaluate specifically identified 

existing provisions in the SIPs of 39 

states that the Petitioner alleged are 

inconsistent with CAA requirements 

and with the EPA’s interpretations of 

the CAA in the SSM Policy. The 

Petitioner identified the specific 

provisions and explained the basis for 

its belief that the provisions in question 

violate one or more requirements of the 

CAA. 

First, the Petitioner argued that any 

SIP provision providing an affirmative 

defense for monetary penalties for 

excess emissions applicable in judicial 

proceedings is contrary to the CAA. The 

Petitioner based its overarching 

arguments concerning the legality of 

affirmative defense provisions in SIPs 

upon the explicit statutory provisions of 

CAA sections 113 and 304. Thus, the 

Petitioner advocated that the EPA 

should rescind its interpretation of the 

CAA expressed in the SSM Policy that 

allows appropriately drawn affirmative 

defense provisions in SIPs. The 

Petitioner made no distinction between 

affirmative defenses for excess 

emissions related to malfunction and 

affirmative defenses for excess 

emissions related to startup or 

shutdown. See section IV of our 

February 2013 proposal notice for the 

EPA’s proposed response at that time 

concerning the issue of affirmative 

defense provisions in SIPs. As 

explained in section III.B of this SNPR, 

the EPA did make such distinction in its 

proposed response in the February 2013 

proposal notice, then reasoning that 

affirmative defense provisions were 

appropriate for violations due to 

malfunction events. The issue of 

affirmative defense provisions in SIPs is 

the focus of this SNPR, and the EPA is 

herein proposing to revise its prior 

proposed action on this issue. 

Second, the Petitioner argued that 

many existing SIPs contain 

impermissible provisions,5 including 

automatic exemptions from applicable 

emission limitations during SSM events, 

director’s discretion provisions that 

provide discretionary exemptions from 

applicable emission limitations during 

SSM events, enforcement discretion 

provisions that appear to bar 

enforcement by the EPA or citizens for 

such excess emissions, and 

inappropriate affirmative defense 

provisions that are not consistent with 

the CAA or the recommendations in the 

EPA’s SSM Policy. The Petitioner 

identified specific provisions in SIPs of 

39 states that it considered inconsistent 

with the CAA and explained the basis 

for its objections to the provisions. 

Among the alleged deficient provisions 

were many that function as affirmative 

defense provisions, regardless of 

whether that specific term is used in the 

state law or regulation at issue and 

regardless of whether the EPA 


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6Some commenters on the February 2013 

proposal notice focused great attention on whether 

startup and shutdown are modes of ‘‘normal’’ 

source operation. The EPA assumes that every 

source is designed, maintained and operated with 

the expectation it will at least occasionally start up 

and shut down, and thus these modes of source 

operation are ‘‘normal’’ in the sense that they are 

previously explicitly evaluated the 

provision as an affirmative defense as 

described in the 1999 SSM Guidance. 

See section V and section IX of our 

February 2013 proposal notice for the 

EPA’s prior proposed responses 

concerning the various alleged SIP 

deficiencies; only issues related to 

affirmative defense provisions are 

addressed in this SNPR, and the EPA is 

proposing to revise its prior proposed 

action only with respect to specific 

affirmative defense SIP provisions. 

Third, the Petitioner argued that the 

EPA should not rely on interpretive 

letters from states to resolve any 

ambiguity, or perceived ambiguity, in 

state regulatory provisions in SIP 

submissions. The Petitioner reasoned 

that all regulatory provisions should be 

clear and unambiguous on their face 

and that any reliance on interpretive 

letters to alleviate facial ambiguity in 

SIP provisions can lead to later 

problems with compliance and 

enforcement. Extrapolating from several 

instances in which the basis for the 

original approval of a SIP provision 

related to excess emissions during SSM 

events was arguably not clear, the 

Petitioner contended that the EPA 

should never use interpretive letters to 

resolve such ambiguities. See section VI 

of our February 2013 proposal notice for 

the EPA’s proposed response 

concerning the issue of interpretive 

letters; that issue is not further 

addressed in this SNPR and the EPA is 

seeking no additional comment on this 

issue. 

Among the fundamental concerns 

raised by the Petitioner was the claim 

that the EPA’s SSM Policy is 

inconsistent with statutory requirements 

because the Agency interprets the CAA 

to authorize states to create SIP 

provisions that provide an affirmative 

defense for qualifying sources to assert 

in the event of violations for excess 

emissions that occur during SSM 

events. Even though the EPA interpreted 

the CAA to allow narrowly drawn 

affirmative provisions in SIPs that are 

consistent with recommended criteria 

intended to assure that states include 

appropriate limitations and conditions 

for affirmative defenses, the Petitioner 

objected to any such provisions. The 

Petitioner argued that any affirmative 

defense that purports to eliminate or 

alter the jurisdiction of federal courts to 

assess monetary penalties or any other 

form of relief for violations of SIP 

emission limits is contrary to the 

requirements of the CAA. In other 

words, no matter how narrowly drawn 

and no matter what the limitations or 

conditions for the affirmative defense 

may be, the Petitioner argued that no 

such affirmative defenses are consistent 

with CAA requirements for SIP 

provisions. 

In addition, the Petitioner identified 

specific existing provisions in the SIPs 

of 14 states that were structured or 

characterized as affirmative defenses, 

regardless of whether the provisions in 

question were consistent with the EPA’s 

SSM Policy as explained in the 1999 

SSM Guidance. The Petitioner 

contended that none of these identified 

provisions are consistent with CAA 

requirements because they improperly 

purport to shield sources from liability 

for violations of SIP emission 

limitations through various 

mechanisms. The Petitioner argued that 

such provisions are therefore 

inconsistent with sections 113 and 304 

and the fundamental enforcement 

structure of the CAA created by 

Congress. Even if the provisions were 

not otherwise contrary to CAA 

requirements, the Petitioner argued, 

each of the identified affirmative 

defense provisions is also inconsistent 

in one or more ways with the EPA’s 

own interpretation of the CAA provided 

in the 1999 SSM Guidance. For 

example, some of the identified 

provisions do not apply only to 

monetary penalties and purport to bar 

injunctive relief as well, some of the 

provisions do not require sources to 

qualify for an affirmative defense 

through criteria comparable to those 

recommended by the EPA, and some of 

the provisions appear to make state 

personnel the unilateral final arbiters of 

whether a source qualified for an 

affirmative defense rather than requiring 

that this be determined by a trier of fact 

in a judicial enforcement proceeding, 

thereby purporting to preclude 

enforcement by the EPA under section 

113 or by others pursuant to the citizen 

suit authority of section 304. 

B. What did the EPA previously propose 

in this rulemaking with respect to 

affirmative defense provisions in SIPs? 

The EPA published its proposed 

response to the Petition on February 22, 

2013. In that proposal, the EPA 

explained the claims asserted by the 

Petitioner, articulated its evaluation of 

those claims, and proposed to take 

actions with respect to each of the 

overarching and specific claims. The 

proposal addressed a number of 

interrelated issues concerning the 

proper treatment of excess emissions 

during SSM events in SIP provisions. A 

key component of the proposal, 

however, was the EPA’s evaluation of 

the Petitioner’s claims concerning 

affirmative defense provisions in SIPs. 

With respect to the Petitioner’s 

overarching claim that the EPA’s 

interpretation of the CAA in the SSM 

Policy permitting states to have 

affirmative defenses in SIP provisions is 

in error, the EPA proposed to deny in 

part and to grant in part. The EPA 

proposed to deny the Petitioner’s claim 

with respect to affirmative defenses 

applicable to malfunction events, on the 

theory that the CAA allows such 

provisions so long as they are 

sufficiently narrowly drawn. The EPA 

reasoned that such provisions are 

appropriate for violations due to 

genuine malfunction events, in order to 

resolve the inherent tension between the 

fact that the CAA requires that SIP 

emission limitations must apply 

continuously and the fact that even 

properly designed, maintained and 

operated sources may sometimes have 

difficulty meeting emission limitations 

for reasons beyond their control. By 

contrast, the EPA proposed to grant the 

Petitioner’s claim with respect to 

affirmative defenses applicable to 

planned events such as startup and 

shutdown. This was a change from the 

EPA’s interpretation of the CAA in the 

1999 SSM Guidance, in which the EPA 

previously recommended that states 

could elect to create such affirmative 

defense provisions for startup and 

shutdown events, so long as the 

provisions were narrowly drawn and 

consistent with the recommended 

criteria to assure that they meet CAA 

requirements. The EPA’s evaluation of 

the Petition and the statutory basis for 

affirmative defense provisions caused 

the Agency to reconsider the 

appropriateness of affirmative defense 

provisions applicable during startup 

and shutdown, which are ordinary 

modes of operation that are generally 

predictable and within the control of the 

source. As explained in more detail in 

the February 2013 proposal notice, the 

EPA’s evaluation in light of then recent 

case law indicated that providing 

affirmative defenses applicable during 

planned events such as startup and 

shutdown was not consistent with the 

EPA’s interpretation of the CAA to 

support such provisions for 

malfunctions and was tantamount to 

allowing sources to be shielded from 

monetary penalties for violations due to 

conduct that is predictable and within 

their control.6


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to be expected. The EPA used this term in the 

ordinary sense of the word to distinguish between 

such predictable modes of source operation and 

genuine ‘‘malfunctions,’’ which are by definition 

supposed to be unpredictable and unforeseen 

events and which could not have been precluded 

by proper source design, maintenance and 

operation. 7The EPA notes that the state of Kentucky has 

now revised the SIP provisions applicable to 

Jefferson County (Louisville) and eliminated the SIP 

inadequacies identified in the February 2013 

proposal notice. The EPA has already approved the 

necessary SIP revisions. See 79 FR 33101 (June 10, 

2014). Accordingly, the EPA’s final action on the 

Petition will not need to include a finding of 

substantial inadequacy and SIP call for Jefferson 

County, Kentucky. The recently approved revision 

did not create an affirmative defense provision, so 

there is no need to readdress this issue in this 

jurisdiction. 

8See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 

2014). 

9 Id. 

10The NESHAP promulgated after the 1990 CAA 

Amendments are also referred to as ‘‘maximum 

achievable control technology’’ or ‘‘MACT’’ 

standards. 

11See February 2013 proposal notice, 78 FR 

12459 at 12478–80. 

With respect to the specific 

affirmative defense provisions identified 

by the Petitioner as deficient, the EPA 

evaluated each of the provisions to 

determine whether they were consistent 

with the EPA’s interpretation of the 

CAA concerning such provisions at the 

time. This evaluation included 

examination of the specific provisions 

in light of the EPA’s interpretations of 

the CAA and recommendations in the 

1999 SSM Guidance, as updated in the 

February 2013 proposal notice (e.g., the 

revision to the EPA’s guidance 

concerning affirmative defenses for 

single sources with the potential to 

cause exceedances of the NAAQS). As a 

result, the EPA proposed to deny the 

Petition with respect to the claims 

concerning affirmative defense 

provisions to the extent applicable to 

malfunction events in three 

jurisdictions: (i) Arizona; (ii) Maricopa 

County, Arizona; and (iii) Colorado. The 

EPA proposed to deny the Petition with 

respect to these affirmative defense 

provisions to the extent applicable to 

malfunction events because at that time 

the EPA believed them to be consistent 

with the CAA and EPA guidance in the 

1999 SSM Policy. The EPA proposed to 

grant the Petition with respect to the 

claims concerning affirmative defense 

provisions in the following 

jurisdictions: (i) Alaska; (ii) Arizona 

(affirmative defense for startup and 

shutdown only); (iii) Maricopa County, 

Arizona (affirmative defense for startup 

and shutdown only); (iv) Arkansas; (v) 

Colorado (affirmative defense for startup 

and shutdown only); (vi) District of 

Columbia; (vii) Illinois; (viii) Indiana; 

(ix) Jefferson County, Kentucky; 7 (x) 

Michigan; (xi) Mississippi; (xii) New 

Mexico; (xiii) Virginia; and (xiv) 

Washington. The EPA’s evaluation of 

the specific provisions in these states 

identified a variety of deficiencies as 

explained in more detail in section IX 

of the February 2013 proposal notice. In 

general, the EPA considered these 

provisions deficient because they 

extended not only to monetary penalties 

but also to injunctive relief, because 

they had insufficient criteria to assure 

that they were sufficiently narrowly 

drawn, because they extended to events 

that were not malfunctions, or because 

of some combination of these concerns. 

C. What events necessitated this SNPR? 

Subsequent to EPA’s issuance of the 

February 2013 proposal, a federal court 

ruled that CAA sections 113 and 304 

preclude EPA authority to create 

affirmative defense provisions in the 

Agency’s own regulations imposing 

emission limits on sources, because 

such provisions purport to alter the 

jurisdiction of federal courts to assess 

liability and impose penalties for 

violations of those limits in private civil 

enforcement cases. The U.S. Court of 

Appeals for the District of Columbia 

Circuit issued that decision in NRDC v. 

EPA on April 18, 2014.8 The EPA 

believes that the reasoning of the court 

in that decision indicates that the 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. 

The court’s decision in NRDC v. EPA 9

pertained to a challenge to the EPA’s 

National Emission Standards for 

Hazardous Air Pollutants (NESHAP) 

regulations issued pursuant to CAA 

section 112 to regulate hazardous air 

pollutants from sources that 

manufacture Portland cement.10 In 

addition to imposing specific emission 

limitations for the relevant pollutants 

from the affected sources, the EPA also 

created an affirmative defense that 

sources could assert in judicial 

enforcement proceedings for violations 

due to excess emissions that occur 

during qualifying malfunction events. 

The affirmative defense provision in the 

Portland cement NESHAP required the 

source to prove, by a preponderance of 

the evidence in an enforcement 

proceeding, that the source met specific 

criteria concerning the nature of the 

event and the source’s conduct before, 

during and after the event. The EPA 

notes that these specific criteria 

required to establish the affirmative 

defense in the Portland cement 

NESHAP are functionally the same as 

the criteria that the EPA previously 

recommended to states for SIP 

provisions in the 1999 SSM Guidance 

and that the EPA explicitly repeated 

these same recommended criteria to 

states in the February 2013 proposal 

notice. In addition, the EPA provided 

sample regulatory text in the February 

2013 proposal notice drawn from a 

comparable NESHAP that the EPA 

recently promulgated for another source 

category, to illustrate how states might 

elect to word appropriate affirmative 

defense provisions in SIPs.11 In other 

words, the affirmative defense provision 

at issue in the NRDC v. EPA case was 

essentially equivalent to the type of 

provision, both conceptually and in 

terms of specific regulatory language, 

which the EPA would previously have 

considered consistent with CAA 

requirements for affirmative defense 

provisions for malfunction events in 

SIPs. 

The EPA believes that the opinion of 

the court in NRDC v. EPA has 

significant impacts on the Agency’s 

SSM Policy and on the positions that 

the EPA took in the February 2013 

proposal notice with respect to issues 

related to affirmative defenses. Section 

IV of the February 2013 proposal notice 

describes in detail the EPA’s prior 

evaluation of the Petition with respect 

to the overarching issue of affirmative 

defense provisions in SIPs. In general, 

the EPA proposed: (i) To deny the 

request to rescind the SSM Policy with 

respect to interpreting the CAA to allow 

states to elect to include appropriately 

tailored affirmative defense provisions 

for violations due to excess emissions 

during periods of malfunction; and (ii) 

to grant the request to rescind the SSM 

Policy with respect to affirmative 

defense provisions for violations due to 

excess emissions during periods of 

startup and shutdown. Consistent with 

this interpretation of the CAA, the EPA 

previously proposed to revise its SSM 

Policy to clarify that states could elect 

to create affirmative defenses in SIP 

provisions only for malfunction events, 

and so long as such provisions were 

narrowly drawn, as recommended in the 

EPA’s guidance. Even these more 

narrowly defined affirmative defense 

provisions are no longer consistent with 

CAA requirements under the reasoning 

adopted by the court in NRDC v. EPA. 

In addition, section IX of the February 

2013 proposal notice provided the 

EPA’s evaluation of each of the specific 


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12Petition at 11. 

13 Id. 

14Petition at 12. 

15Petition at 10. 

16Petition at 11. 

17 Id. 

SIP provisions identified by the 

Petitioner and proposed to take action 

on them, in accordance with EPA’s 

interpretation of the CAA for such 

provisions at that time. These SIP 

provisions included affirmative defense 

provisions of various types, including 

some that the Agency had previously 

approved as consistent with its 

interpretation of the CAA in the 1999 

SSM Guidance. The EPA evaluated 

these provisions on a case-by-case basis 

and proposed either to grant or to deny 

the Petition with respect to each 

provision, consistent with the EPA’s 

then current interpretation of the CAA 

for such provisions. 

The recent decision by the U.S. Court 

of Appeals for the District of Columbia 

Circuit in NRDC v. EPA has called into 

question the legal basis for affirmative 

defense provisions applicable to 

violations of CAA requirements. The 

reasoning used by that court, as 

logically extended to SIP provisions, 

indicates that neither states nor the EPA 

have authority to alter either the rights 

of other parties to seek relief or the 

jurisdiction of the federal courts to 

impose relief for violations of CAA 

requirements in SIPs, including the 

courts’ power to restrain violations, to 

require compliance, and to assess 

monetary penalties for any violations in 

accordance with factors provided in 

CAA section 113(e)(1). 

The EPA acknowledges that its SSM 

Policy since the 1999 SSM Guidance 

has interpreted the CAA in such a way 

that states could in effect alter the 

jurisdiction of federal courts to assess 

monetary penalties under certain 

conditions through creation of 

affirmative defenses. In other words, 

even though Congress explicitly 

empowered federal courts to assess 

monetary penalties for a CAA violation, 

an affirmative defense could, contrary to 

the statute, limit the ability of a court to 

do so. The EPA believes that the court’s 

decision in NRDC v. EPA compels the 

Agency to reevaluate its interpretation 

of the CAA and its proposed action on 

the Petition concerning affirmative 

defense provisions in SIPs. As a result, 

in this SNPR we are revising what we 

previously proposed as our response to 

the Petition, but only to the extent 

relevant to the issue of affirmative 

defense provisions in SIPs. In section 

III.C of this SNPR, the EPA explains in 

detail why the court’s interpretation of 

relevant CAA provisions indicates that 

states do not have authority to create, 

and thus the EPA does not have 

authority to approve, SIP provisions that 

include an affirmative defense that 

would operate to alter the jurisdiction of 

federal courts to assess penalties or 

other forms of relief authorized in 

sections 113 and 304. In section VII of 

this SNPR, the EPA explains how the 

decision affects the February 2013 

proposal with respect to specific 

provisions in the SIPs of particular 

states. In section VII of this SNPR, the 

EPA also includes affirmative defense 

provisions found in six states’ SIPs that 

the Agency has identified 

independently, and the EPA explains 

why each of these additional provisions 

fails to meet CAA requirements and 

thus necessitates a finding of substantial 

inadequacy and a SIP call as well. The 

EPA is including the additional 

provisions to assure that it provides 

comprehensive guidance with respect to 

this issue to all states and to alleviate 

confusion that may arise as a result of 

recent regulatory actions and litigation 

concerning affirmative defense 

provisions. 

IV. What is the EPA proposing through 

this SNPR in response to the 

petitioner’s request for rescission of the 

EPA policy on affirmative defense 

provisions? 

A. Petitioner’s Request 

The February 2013 proposal notice 

explained in detail the Petitioner’s 

claims with respect to affirmative 

defense provisions in SIPs, but it is 

helpful to repeat the full argument here 

in order to explain the reasons for the 

EPA’s revised proposal in this SNPR. 

Understanding those specific claims in 

light of the court’s decision in the NRDC 

v. EPA decision serves to illustrate the 

need for the EPA to reexamine the 

statutory basis for any affirmative 

defense in SIP provisions, not merely 

those provisions limited to malfunction 

events or to those for malfunction 

events that are sufficiently narrowly 

drawn to be consistent with the EPA’s 

prior interpretation of the CAA in the 

1999 SSM Guidance. 

The Petitioner’s first request was for 

the EPA to rescind its SSM Policy 

element interpreting the CAA to allow 

affirmative defense provisions in SIPs 

for excess emissions during SSM 

events.12 The Petitioner also asked the 

EPA: (i) To find that SIPs containing an 

affirmative defense to monetary 

penalties for excess emissions during 

SSM events are substantially inadequate 

because they do not comply with the 

CAA; and (ii) to issue a SIP call 

pursuant to CAA section 110(k)(5) to 

require each such state to revise its 

SIP.13 Alternatively, if the EPA denies 

these two related requests, the Petitioner 

requested the EPA: (i) To require states 

with SIPs that contain such affirmative 

defense provisions to revise them so 

that they are consistent with the EPA’s 

1999 SSM Guidance for excess 

emissions during SSM events; and (ii) to 

issue a SIP call pursuant to CAA section 

110(k)(5) to states with provisions 

inconsistent with the EPA’s 

interpretation of the CAA.14 The EPA 

interpreted this latter request to refer to 

the specific SIP provisions that the 

Petitioner identified in a separate 

section of the Petition, titled, ‘‘Analysis 

of Individual States’ SSM Provisions,’’ 

including specific existing affirmative 

defense provisions. 

The Petitioner requested that the EPA 

rescind its SSM Policy element 

interpreting the CAA to allow SIPs to 

include affirmative defenses for 

violations due to excess emissions 

during any type of SSM events because 

the Petitioner contended there is no 

legal basis for the policy. Specifically, 

the Petitioner cited to two statutory 

grounds, CAA sections 113(b) and (e), 

related to the type of judicial relief 

available in an enforcement proceeding 

and to the factors relevant to the scope 

and availability of such relief, that the 

Petitioner claimed would bar the 

approval of any type of affirmative 

defense provision in SIPs. 

In the Petitioner’s view, the CAA 

‘‘unambiguously grants jurisdiction to 

the district courts to determine penalties 

that should be assessed in an 

enforcement action involving the 

violation of an emissions limit.’’ 15 The 

Petitioner first argued that in any 

judicial enforcement action in the 

district court, CAA section 113(b) 

provides that ‘‘such court shall have 

jurisdiction to restrain such violation, to 

require compliance, to assess such 

penalty, . . . and to award any other 

appropriate relief.’’ In addition, the 

Petitioner cited the provisions of CAA 

section 304(a), which specifically 

pertain to citizen suit enforcement and 

which reiterate that the federal courts 

have jurisdiction to assess monetary 

penalties for violations as well as to 

impose other remedies.16 The Petitioner 

reasoned that the EPA’s SSM Policy is 

therefore fundamentally inconsistent 

with the CAA because it purports to 

remove the discretion and authority of 

the federal courts to assess monetary 

penalties for violations if a source is 

shielded from monetary penalties under 

an affirmative defense provision in the 

approved SIP.17 The Petitioner 


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18 Id. 

19 Id. 

20 Id. 

21See Luminant Generation Co. v. EPA, 714 F.3d 

841 (5th Cir. 2012) (upholding the EPA’s approval 

of an affirmative defense applicable during 

malfunctions in a SIP submission as a permissible 

interpretation of the statute under Chevron step 2 

analysis), cert. denied, 134 S.Ct. 387 (2013); Mont. 

Sulphur & Chemical Co. v. EPA, 666 F.3d 1174, 

1191–93 (9th Cir. 2012) (upholding the EPA’s 

creation of an affirmative defense applicable during 

malfunctions in a FIP); Ariz. Public Service Co. v. 

EPA, 562 F.3d 1116, 1130 (9th Cir. 2009) 

(upholding the EPA’s creation of an affirmative 

defense applicable during malfunctions in a FIP). 

22 Luminant Generation Co. v. EPA, 714 F.3d 841 

(5th Cir. 2012), cert. denied, 134 S.Ct. 387 (2013). 

23See Luminant Generation Co. v. EPA, 714 F.3d 

841, at 851 and 856 (5th Cir. 2012). 

24See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 

2014). 

25See, e.g., White Stallion Energy Center, LLC v. 

EPA, 748 F.3d 1222, 1235 (D.C. Cir. 2014) (citing 

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet 

Servs., 545 U.S. 967 (2005) and FCC v. Fox 

Television Stations, Inc., 556 U.S. 502 (2009)). 

concluded that the EPA’s interpretation 

of the CAA in the SSM Policy element 

allowing any affirmative defenses is 

impermissible ‘‘because the inclusion of 

an affirmative defense provision in a SIP 

limits the courts’ discretion—granted by 

Congress—to assess penalties for Clean 

Air Act violations.’’ 18

Second, in reliance on CAA section 

113(e)(1), the Petitioner argued that in a 

judicial enforcement action in a district 

court, the statute explicitly specifies a 

list of factors that the court is to 

consider in assessing penalties.19 That 

section provides that either the 

Administrator or the court: 

. . . shall take into consideration (in 

addition to such other factors as justice may 

require) the size of the business, the 

economic impact of the penalty on the 

business, the violator’s full compliance 

history and good faith efforts to comply, the 

duration of the violation as established by 

any credible evidence (including evidence 

other than the applicable test method), 

payment by the violator of penalties 

previously assessed for the same violation, 

the economic benefit of noncompliance, and 

the seriousness of the violation. 

The Petitioner argued that the EPA’s 

SSM Policy authorizes states to create 

affirmative defense provisions with 

criteria for monetary penalties that are 

inconsistent with the factors that the 

statute specifies and that the statute 

explicitly directs courts to weigh in any 

judicial enforcement action. In 

particular, the Petitioner enumerated 

those factors that it alleges the EPA’s 

SSM Policy totally omits: (i) The size of 

the business; (ii) the economic impact of 

the penalty on the business; (iii) the 

violator’s full compliance history; (iv) 

the economic benefit of noncompliance; 

and (v) the seriousness of the violation. 

By specifying particular factors for 

courts to consider, the Petitioner 

reasoned, Congress has already 

definitively spoken to the question of 

what factors are germane in assessing 

monetary penalties under the CAA for 

violations. The Petitioner concluded 

that the EPA has no authority to allow 

a state to include an affirmative defense 

provision in a SIP with different criteria 

to be considered in awarding monetary 

penalties because ‘‘[p]reventing the 

district courts from considering these 

statutory factors is not a permissible 

interpretation of the Clean Air Act.’’ 20

The Petitioner drew no distinction 

between affirmative defenses for 

unplanned events such as malfunctions 

and planned events such as startup and 

shutdown. 

B. The EPA’s Proposed Revised 

Response 

As a preliminary matter, the EPA 

acknowledges that its interpretation of 

the CAA in its SSM Policy, since 

issuance of the 1999 SSM Guidance, has 

been that states may elect to have 

narrowly drawn affirmative defense 

provisions in SIPs, so long as they meet 

certain requirements (e.g., that they only 

apply to monetary penalties and not to 

injunctive relief). The EPA’s 

longstanding guidance has also 

provided very specific 

recommendations to states concerning 

how to develop affirmative defense 

provisions that would be consistent 

with CAA requirements (e.g., such 

provisions should require sources to 

prove in an enforcement proceeding that 

the violations are not so repetitive as to 

indicate that the source is improperly 

designed, maintained or operated). The 

EPA further acknowledges that it has 

previously approved affirmative defense 

provisions in SIPs or, when appropriate, 

promulgated affirmative defenses in 

federal implementation plans (FIPs). 

Indeed, the EPA’s approval of 

affirmative defense provisions in SIPs or 

promulgation of such provisions in FIPs 

has been upheld by courts in several 

decisions.21

Most significantly, the EPA’s 

November 2010 approval of an 

affirmative defense applicable to 

‘‘unplanned events’’ (i.e., malfunctions) 

and disapproval of an affirmative 

defense applicable to ‘‘planned events’’ 

(e.g., planned startup and shutdown) in 

a Texas SIP submission were challenged 

by numerous parties. In 2012, the U.S. 

Court of Appeals for the 5th Circuit 

upheld EPA’s actions, including both 

the Agency’s approval and disapproval 

of the affirmative defense provisions 

applicable to the respective types of 

events.22 In that litigation, the EPA 

defended its approval and disapproval 

actions, including the filing of an 

opposition to a petition for certiorari 

filed by industry challengers concerning 

the disapproval of the affirmative 

defense for planned events. Throughout 

the litigation over the Texas SIP 

revision, the EPA reiterated what was at 

the time its view that appropriately 

drawn affirmative defense provisions 

applicable to malfunctions can be 

consistent with CAA requirements for 

SIPs. In particular, the EPA argued in 

that litigation that sections 113 and 304 

do not preclude appropriately drawn 

affirmative defense provisions for 

malfunctions in SIPs. The 5th Circuit 

applied the two-step Chevron analysis 

to the EPA’s interpretation of section 

113 in connection with both the 

approval of the affirmative defense 

provision applicable to ‘‘unplanned 

events’’ and the disapproval of the 

affirmative defense provision applicable 

to ‘‘planned events.’’ With respect to 

both the approval and disapproval, the 

court held that the Agency’s 

interpretation of the CAA at that time 

was a ‘‘permissible interpretation of 

section [113], warranting deference.’’ 23

Subsequent events have caused EPA to 

reevaluate this interpretation of the 

CAA requirements. 

The EPA has carefully evaluated the 

more recent April 2014 decision of the 

U.S. Court of Appeals for the District of 

Columbia Circuit in NRDC v. EPA in 

which the court came to a contrary 

conclusion with respect to the legal 

basis for an affirmative defense 

provision in the Agency’s own 

regulations.24 In light of this more 

recent decision, the EPA believes that 

its prior interpretation of the CAA with 

respect to the approvability of 

affirmative defense provisions in SIPs is 

no longer the best reading of the statute. 

The EPA has authority to revise its prior 

interpretation of the CAA when further 

consideration indicates to the Agency 

that its prior interpretation of the statute 

is incorrect.25 In order to explain more 

fully why the EPA believes that the 

court’s decision in NRDC v. EPA 

requires the Agency to change its SSM 

Policy and to revise its February 2013 

proposal notice with respect to 

affirmative defense provisions in SIPs, 

the EPA will first explain why it 

believes that the reasoning of the court’s 

decision is more broadly applicable and 

will then explain why it believes that 

the specific reasons given by the court 

for rejecting the EPA’s prior 

interpretation of the CAA would apply 

with equal weight to SIP provisions. 


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26See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. 

Cir. 2014). 

27See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. 

Cir. 2014). 

The EPA believes that the reasoning 

of the court’s decision in NRDC v. EPA 

applies more broadly than to the 

specific facts of the case for several 

reasons. First, the EPA notes that the 

court’s decision did not turn upon the 

specific provisions of CAA section 112. 

Although the court only evaluated the 

legal validity of an affirmative defense 

provision created by the EPA in 

conjunction with specific standards 

applicable to manufacturers of Portland 

cement, the court based its decision 

upon the provisions of sections 113 and 

304 that pertain to enforcement of CAA 

requirements more broadly, including to 

SIPs. Sections 113 and 304 pertain to 

administrative and judicial enforcement 

generally and are in no way limited to 

enforcement of emission limitations 

promulgated by the EPA under section 

112. Thus, the EPA does not think that 

the mere fact that the court only 

addressed the legality of an affirmative 

defense provision in this particular 

context means that the court’s 

interpretation of sections 113 and 304 

does not also apply more broadly. To 

the contrary, the EPA sees no reason 

why the logic of the court concerning 

sections 113 and 304 would not apply 

to SIP provisions as well. 

Second, the EPA notes that footnote 2 

in the opinion does not signify that the 

court intended to take any position with 

respect to the application of its 

interpretation of the CAA to SIP 

provisions, let alone to suggest that its 

interpretation would not apply more 

broadly. The court was clearly cognizant 

that a similar legal issue had arisen in 

litigation in the U.S. Court of Appeals 

for the 5th Circuit concerning the Texas 

SIP and merely acknowledged that fact 

and clearly stated in this footnote: ‘‘[W]e 

do not here confront the question 

whether an affirmative defense may be 

appropriate in a State Implementation 

Plan.’’ 26 Given that the case before the 

court did not pertain to SIP provisions 

and thus the legal validity of affirmative 

defense provisions in a SIP did not need 

to be decided, the EPA believes that 

footnote 2 simply reflects the court’s 

desire to be clear that it was only 

addressing the question of whether 

sections 113 and 304 preclude any EPA 

authority to create an affirmative 

defense applicable to private civil suits 

in its own regulations. However, the 

EPA believes that the logic of the court’s 

decision in NRDC v. EPA regarding the 

import of sections 113 and 304 does 

extend to SIP provisions. In the 

remainder of this section of the SNPR, 

we explain in greater detail why we 

now think the D.C. Circuit’s reading of 

the statute is the correct one. 

Finally, the EPA notes that the fact 

that the court only addressed the 

legality of affirmative defense 

provisions in the context of citizen suit 

enforcement—which by definition is 

judicial rather than administrative 

enforcement—does not affect the 

relevance of the court’s reasoning with 

respect to the legal basis for affirmative 

defenses in SIP provisions. Under the 

CAA, a state has the initial 

responsibility to develop and submit 

SIP submissions to meet various 

requirements (e.g., to impose reasonably 

available control measures on sources in 

nonattainment areas). The EPA’s 

evaluation and approval of the state’s 

SIP submission in turn makes the 

contents of the submission federally 

enforceable parts of the SIP. Pursuant to 

sections 113 and 304, the state, the EPA 

and citizens then have the ability to 

seek to bring enforcement actions for 

violations of the requirements of the SIP 

in federal court. Thus, the court’s logic 

in NRDC v. EPA would also apply to the 

provisions of the state’s SIP, and the 

jurisdiction of a court to impose 

penalties or other forms of relief for 

violations of SIP requirements under the 

CAA cannot be altered by an affirmative 

defense in a state’s SIP provision in the 

same way that it cannot be altered by 

such a provision in an EPA regulation. 

Just as the court’s decision is not 

limited in ways that would preclude it 

from applying to SIP provisions, the 

EPA also believes that the logic of the 

decision would apply with equal weight 

to affirmative defense provisions in SIPs 

for a number of reasons. Most 

significantly, the court rejected a series 

of arguments that the EPA made to 

support its legal authority under the 

CAA to create an affirmative defense in 

the Portland cement NESHAP. The EPA 

made the same or comparable 

arguments to support its interpretation 

of the CAA to provide authority for 

states to elect to create, and for the EPA 

to approve, affirmative defense 

provisions in SIPs applicable in judicial 

enforcement cases. The EPA has 

carefully evaluated the reasoning of the 

court in the NRDC v. EPA decision and 

now believes that its prior interpretation 

of the CAA with respect to affirmative 

defense provisions in the SSM Policy, as 

first stated in the 1999 SSM Guidance 

and as updated in the February 2013 

proposal notice, was incorrect and 

would not withstand judicial review in 

light of the NRDC v. EPA decision. 

Evaluation of the key points of the 

court’s reasoning in the decision 

indicates that the court’s interpretation 

of the relevant statutory provisions 

applies equally to SIP provisions. 

First, the NRDC v. EPA court 

examined the litigants’ key argument 

that the EPA has no authority to alter 

the jurisdiction of courts to assess 

monetary penalties or to alter the factors 

that courts must consider when 

assessing the amount of such penalties. 

The litigants argued that the EPA’s 

creation of an affirmative defense had 

the effect of altering or eliminating the 

jurisdiction of the federal courts to 

impose penalties in a citizen suit 

enforcement proceeding. The NRDC v. 

EPA court evaluated the litigants’ 

argument with a straightforward reading 

of CAA section 304(a) concerning the 

rights of ‘‘any person’’ to bring an 

enforcement action and the jurisdiction 

of federal courts to assess liability and 

penalties in such an action and of CAA 

section 113(e)(1) concerning the factors 

that courts must consider when 

assessing civil penalties. Citing recent 

U.S. Supreme Court precedent, the court 

reasoned that section 304(a) creates a 

private right of action and that the 

courts alone are vested with authority to 

determine the scope of remedies in 

judicial enforcement, rather than the 

administrative agency. The NRDC v. 

EPA court treated this issue as a 

question that it could answer with a 

Chevron step 1 plain reading of the 

statute and evidently saw no ambiguity 

concerning whether the EPA has 

authority to alter the rights of litigants 

to seek monetary penalties for violations 

or to alter the jurisdiction of the federal 

courts to assess such penalties. In 

retrospect and in light of the court’s 

decision, the EPA believes that this is 

the correct reading of CAA sections 113 

and 304 with respect to this question in 

the SIP context as well. Thus, these 

statutory provisions functionally bar 

affirmative defense provisions in SIPs 

that would have the effect of altering the 

rights of litigants or the authority of the 

courts in the event of enforcement for 

violations of SIP requirements. 

Second, the NRDC v. EPA court 

evaluated the EPA’s argument that an 

affirmative defense ‘‘fleshes out the 

statutory requirement that penalties be 

applied only when ‘appropriate.’ ’’ 27

The EPA had argued that CAA section 

304(a) provides federal district courts 

with jurisdiction to ‘‘apply any 

appropriate civil penalties’’ and that 

such penalties would only be 

‘‘appropriate’’ if the regulation being 

enforced specifically provided for such 

penalties in the first place. In other 

words, the EPA argued, if the regulation 


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28See NRDC v. EPA, 749 F.3d 1055, 1062 (D.C. 

Cir. 2014). 

29See February 2013 proposal notice, 78 FR 

12459 at 12472 (middle column). 

30See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. 

Cir. 2014). 

31 Id. 

32See February 2013 proposal notice, 78 FR 

12459 at 12470 (middle column); 12470 (right 

column); 12472 (right column). 

33See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. 

Cir. 2014). 

34See February 2013 proposal notice, 78 FR 

12459 at 12470 (left column); 12472 (right column); 

12487 (left column). 

35The EPA interprets the court’s opinion to mean 

that a defendant in an enforcement proceeding 

might want to make this argument as part of its 

efforts to seek lower penalties, consistent with the 

factors listed in CAA section 113(e). The court’s 

reference to the EPA’s making such an argument 

relates back to the court’s earlier suggestion that the 

EPA could seek to participate as an intervenor or 

an amicus in a citizen suit enforcement matter if it 

Continued 

contained an affirmative defense that 

precluded monetary penalties under 

certain circumstances, then it would not 

be ‘‘appropriate’’ for a court to assess 

the penalties in those circumstances. 

The NRDC v. EPA court disagreed with 

this argument, stating unequivocally 

that under the CAA ‘‘deciding whether 

penalties are ‘appropriate’ is a job for 

the courts, not EPA.’’ 28 To the extent 

that a defendant in an enforcement case 

has a basis for arguing that monetary 

penalties should be reduced, the court 

stated that CAA section 113(e)(1) 

already provides courts with factors that 

may be taken into consideration. The 

court emphasized that in judicial 

enforcement, the court decides whether 

or not to accept a defendant’s arguments 

concerning the assessment of penalties, 

not the EPA. In the February 2013 

proposal notice, the EPA relied on this 

same argument to support its position 

that affirmative defense provisions in 

SIPs would not contradict CAA sections 

113 and 304 and to justify its proposed 

denial of the Petition with respect to 

affirmative defenses applicable to 

malfunctions events.29 Given that the 

court has rejected this interpretation of 

the CAA for the EPA’s own regulations, 

the EPA believes that the same principle 

applies to states that seek to alter the 

ability of federal courts to assess 

penalties for violations of CAA 

requirements in SIP provisions. If states 

have no authority to alter the 

jurisdiction of federal courts to impose 

remedies for violations explicitly 

provided for in the CAA, then this 

affects the EPA’s authority to approve 

any such SIP provisions as consistent 

with the requirements of the CAA. 

Pursuant to its authority and 

responsibility under sections 110(k), 

110(l) and 193, the EPA can only 

approve SIP provisions that comply 

with the applicable substantive 

requirements of the CAA. Approving an 

affirmative defense provision into a SIP 

that would purport to contravene the 

jurisdiction of federal courts to 

determine liability and to impose 

remedies in accordance with sections 

113 and 304 would thus be 

inappropriate. 

Third, the NRDC v. EPA court 

scrutinized the EPA’s argument that it 

has authority under CAA section 301 to 

create an affirmative defense through 

the general authority of the EPA 

Administrator ‘‘to prescribe such 

regulations as are necessary to carry out 

his functions under’’ the CAA.30 In the 

February 2013 proposal notice, the EPA 

did not make this particular argument 

because it was not proposing EPA 

regulations to implement the CAA, 

rather it was proposing action on a 

petition for rulemaking that entails 

evaluating the EPA’s guidance to states 

in the SSM Policy concerning whether 

specific types of SIP provisions are 

consistent with CAA requirements. 

Nevertheless, the EPA notes, the court 

rejected the notion that the EPA has any 

authority to promulgate regulations that 

would alter or eliminate the jurisdiction 

of federal courts to assess penalties 

when Congress has already directly 

spoken to that issue. As the court 

expressed it, ‘‘EPA cannot rely on its 

gap-filling authority to supplement the 

Clean Air Act’s provisions when 

Congress has not left the agency a gap 

to fill.’’ The EPA believes that the 

court’s reasoning would extend to 

situations where the EPA is required to 

determine whether or not an affirmative 

defense provision is consistent with 

CAA requirements. Following this 

reasoning, the EPA would not have 

authority, through rulemaking on a 

state’s SIP submission or otherwise, to 

approve an affirmative defense 

provision applicable in a judicial 

enforcement action, because to do so 

would be inconsistent with the statutory 

allocation of jurisdiction to the federal 

courts. In other words, just as the EPA’s 

authority to promulgate regulations to 

implement the CAA does not 

encompass the authority to overwrite 

statutory provisions, the EPA likewise 

lacks authority to issue guidance to 

states concerning SIP provisions in the 

SSM Policy, or to approve a SIP 

submission that contains such SIP 

provisions, in a way that would likewise 

overwrite statutory provisions where 

Congress has spoken directly. 

Fourth, the NRDC v. EPA court 

weighed the EPA’s argument that CAA 

section 304 does not ‘‘expressly deny’’ 

EPA authority to create affirmative 

defenses and thus the EPA is not 

precluded from doing so.31 Because the 

statute is silent with respect to whether 

or not such provisions are permissible, 

the EPA inferred that the EPA had 

authority to create them as a component 

of the Portland cement NESHAP. In the 

February 2013 proposal notice, the EPA 

used a comparable argument that 

sections 110(a), 113(b) and 113(e) of the 

CAA do not expressly forbid affirmative 

defense provisions in SIPs, both to 

support its position that states could 

elect to have affirmative defense 

provisions for malfunctions in SIPs and 

in support of its proposed denial of the 

Petition on this point.32 In response to 

this particular argument, the NRDC v. 

EPA court rejected the suggestion that a 

court should ‘‘presume a delegation of 

power absent an express withholding of 

such power’’ as inconsistent with the 

principles of statutory interpretation 

under Chevron. The court thus 

expressly rejected the argument that 

affirmative defense provisions are 

consistent with the CAA by virtue of the 

fact that Congress has not explicitly 

forbidden them, especially in the face of 

conflicting provisions such as those in 

sections 113(b) and 304(a) giving 

jurisdiction to federal courts to assess 

penalties for violations of CAA 

requirements. The EPA now believes 

that this same reasoning applies to 

affirmative defense provisions in SIPs. 

Finally, the NRDC v. EPA court 

evaluated the EPA’s argument that 

affirmative defense provisions are 

‘‘necessary to account for the tension 

between requirements that emission 

limitations be ‘continuous’ and the 

practical reality that control technology 

can fail unavoidably.’’ 33 This tension is 

an important point that the EPA has 

long noted as a basis for its 

interpretation of the CAA to allow 

affirmative defense provisions, not only 

in its own regulations such as the 

Portland cement NESHAP, but also in 

the SSM Policy providing guidance to 

states for SIP provisions. In the February 

2013 proposal notice, the EPA used this 

same argument and the same case law 

support to justify its position that states 

could elect to have affirmative defense 

provisions for malfunctions in SIPs and 

for its proposed denial of the Petition on 

this point.34 The NRDC v. EPA court 

agreed that this would be a ‘‘good 

argument’’ for a source to make in an 

enforcement proceeding but made clear 

that this ‘‘tension’’ does not give the 

EPA legal authority to create an 

affirmative defense.35 The court thus 


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wants to take a position on what monetary penalties 

are ‘‘appropriate’’ for a given violation. 

36The EPA notes that CAA section 113(b) 

expressly gives federal courts jurisdiction ‘‘to 

restrain such violation, to require compliance, to 

assess such civil penalty, to collect any fees owed 

the United States under this chapter (other than 

subchapter II of this chapter) and any 

noncompliance assessment and nonpayment 

penalty owed under section 7420 of this title, and 

to award any other appropriate relief.’’ Similarly, 

CAA section 304 expressly provides that in the 

context of a citizen suit enforcement case, federal 

courts have jurisdiction ‘‘to enforce such an 

emission standard or limitation, or such an order 

. . . and to apply any appropriate civil penalties.’’ 

In the latter section, the term ‘‘emission standard 

or limitation’’ is defined broadly in section 304(f). 

summarily rejected the EPA’s argument 

that the need to ‘‘balance’’ the objectives 

of the CAA and to resolve the ‘‘tension’’ 

in the CAA authorizes creation of 

affirmative defenses that purport to alter 

or eliminate the jurisdiction of the 

courts to assess monetary penalties or 

other forms of relief. Given the result in 

the NRDC v. EPA decision, the EPA 

believes that this argument can no 

longer be a basis for the EPA’s approval 

of affirmative defense provisions in SIPs 

that would apply in judicial 

enforcement actions. The net result 

would be that sources can continue to 

make this practical argument in the 

context of judicial enforcement 

proceedings and that this consideration 

would remain relevant in that forum, 

but without intercession by states or the 

EPA concerning whether the source 

should be liable for penalties in any 

specific circumstance through an 

affirmative defense provision in the SIP. 

In accordance with CAA section 113(e), 

sources retain the ability to seek lower 

monetary penalties through the 

statutory factors provided for 

consideration in administrative or 

judicial enforcement proceedings. In 

this context, for example, a violating 

source could argue that factors such as 

good-faith efforts to comply should 

reduce or eliminate otherwise 

applicable monetary penalties in a 

particular situation. 

In light of the court’s decision in 

NRDC v. EPA, the EPA believes it 

necessary to revise its SSM Policy and 

its February 2013 proposed response to 

the Petition with respect to the issues 

related to affirmative defense provisions 

in SIPs. Given the court’s reasoning that 

sections 113 and 304 preclude the EPA 

from having authority to create an 

affirmative defense applicable in private 

civil suits in federal regulations because 

such a provision would impinge upon 

jurisdiction explicitly provided by 

Congress to the courts, the EPA believes 

that its past guidance to states in the 

SSM Policy is flawed. If the EPA has no 

authority to create affirmative defenses 

because it cannot alter the jurisdiction 

of the courts to assess penalties in 

enforcement proceedings for violations 

of CAA requirements, then it follows 

that states likewise cannot alter the 

jurisdiction of the federal courts in SIP 

provisions and the EPA cannot approve 

any SIP provision that purports to do so. 

The EPA emphasizes that the same logic 

applies to any SIP provision that 

purports to eliminate, restrict or 

otherwise alter the jurisdiction of 

federal courts to impose any of the 

expressly listed forms of relief in section 

113(b), not merely those applicable to 

monetary penalties.36 Pursuant to the 

requirements of sections 110(k), 110(l) 

and 193, the EPA has both the authority 

and the responsibility to evaluate SIP 

submissions to assure that they meet the 

requirements of the CAA. Pursuant to 

section 110(k)(5), the EPA has authority 

and discretion to take action to require 

states to revise previously approved SIP 

provisions if they do not meet CAA 

requirements. 

For the foregoing reasons, in this 

SNPR the EPA is proposing to grant the 

Petition with respect to the Petitioner’s 

request that the EPA rescind its SSM 

Policy element interpreting the CAA to 

allow affirmative defense provisions in 

SIPs for excess emissions during SSM 

events. Unlike the EPA’s view at the 

time of the February 2013 proposal 

notice, the EPA now sees no valid basis 

for interpreting the CAA to permit 

affirmative defense provisions in SIPs 

for violations due to excess emissions 

during any type of event, whether that 

event is a malfunction totally beyond 

the control of the source or a planned 

event within the control of the sources 

such as a startup or shutdown. 

V. Revised SSM Policy on Affirmative 

Defense Provisions in SIPs 

In the February 2013 proposal notice, 

the EPA evaluated the issues raised by 

the Petitioner concerning the treatment 

of excess emissions during SSM events 

in SIP provisions. As part of responding 

to the Petition, the EPA proposed to 

clarify, reiterate and revise its 

longstanding SSM Policy. In this SNPR, 

the EPA is now proposing to revise 

further its interpretation of the CAA 

with respect to affirmative defense 

provisions applicable to excess 

emissions during SSM events. 

Based upon a reevaluation of the CAA 

with respect to SIP provisions, and 

upon careful consideration of the 

implications of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

At this juncture, the EPA believes that 

the reasoning of the U.S. Court of 

Appeals for the District of Columbia 

Circuit in NRDC v. EPA logically 

extends to affirmative defense 

provisions created by states in SIPs, as 

well as to such provisions created by the 

EPA in its own regulations. Given that 

sections 113 and 304 functionally bar 

any affirmative defense that purports to 

alter or to eliminate the jurisdiction of 

federal courts to assess penalties for 

violations of CAA requirements or to 

impose the other remedies listed in 

section 113(b), this principle applies to 

SIP provisions as well. Although the 

NRDC v. EPA decision focused on the 

jurisdiction of the federal courts to 

assess civil penalties for violations of 

EPA regulations promulgated under 

section 112, because that was what was 

specifically at issue in the case before it, 

the EPA sees no reason why the same 

logic would not apply to any SIP 

provision that purported to alter or 

eliminate the jurisdiction of the federal 

courts to exercise their authority in the 

event of violations as provided in CAA 

section 113(b), including the authority 

to restrain violations, to require 

compliance, to assess civil penalties, to 

collect any fees and to award any other 

appropriate relief. In other words, 

affirmative defense provisions in SIPs 

that purport to alter or eliminate the 

broad authority of federal courts to 

award any of these types of relief in the 

event of an enforcement action, whether 

pursuant to section 113 or section 304, 

are likewise contrary to the enforcement 

structure of the CAA. Accordingly, the 

EPA proposes to revise its SSM Policy 

to interpret the CAA to preclude 

affirmative defense provisions in SIPs. 

When finalized, this rulemaking will 

embody the EPA’s revised SSM Policy, 

and it will provide the most up-to-date 

and comprehensive EPA guidance on 


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37See February 2013 proposal notice, FR 12459 

at 12487–88. 

the subject of the proper treatment of 

excess emissions from sources during 

SSM events in SIP provisions. 

VI. Legal Authority, Process and 

Timing for SIP Calls 

In section VIII of the February 2013 

proposal notice, the EPA explained in 

detail its statutory authority under CAA 

section 110(k)(5) to issue a SIP call to 

states to address SIP deficiencies, the 

process for making such a SIP call and 

the timing for such a SIP call. In this 

SNPR, the EPA is not revising its 

interpretations of the CAA with respect 

to those issues and thus is not seeking 

comment on these topics. The EPA is 

revising one aspect of the February 2013 

proposal notice with respect to the basis 

for the proposed SIP calls for affirmative 

defense provisions. In the February 

2013 proposal notice, the EPA 

explained its basis for concluding that 

different types of deficient SIP 

provisions identified in the Petition are 

substantially inadequate to comply with 

requirements of the CAA and thus 

warrant a SIP call for a state to revise 

or to eliminate the impermissible 

provision. With respect to affirmative 

defense provisions, the EPA articulated 

its evaluation of why inadequate 

affirmative defense provisions 

applicable to malfunction events, or any 

affirmative defense provisions 

applicable to planned events like 

startup and shutdown, would be 

inconsistent with fundamental legal 

requirements of CAA sections 110(a) 

and 302(k) and the enforcement 

structure provided in CAA sections 113 

and 304.37 The rationale provided by 

the EPA in the February 2013 proposal 

notice was obviously based upon the 

Agency’s interpretation of the relevant 

requirements of the CAA at the time of 

that proposal. 

In light of the decision of the U.S. 

Court of Appeals for the District of 

Columbia Circuit in NRDC v. EPA, 

however, the EPA has reevaluated 

whether any form of affirmative defense 

provision is consistent with CAA 

requirements for SIP provisions. The 

court concluded that the EPA has no 

authority to alter the rights of litigants 

to seek monetary penalties for violations 

of CAA requirements and no authority 

to alter the broad jurisdiction of federal 

courts to assess such penalties for such 

violations under CAA sections 113 and 

304. The EPA believes that the logic of 

the court’s decision extends to the 

jurisdiction of the federal courts to 

impose other remedies expressly 

provided for in sections 113 and 304 as 

well. These sections of the CAA are thus 

among the fundamental requirements 

with which SIPs must comply in order 

to be consistent with the enforcement 

structure created by Congress in the 

CAA. 

The EPA notes that the NRDC v. EPA 

court did not condition its decision on 

considerations such as whether the use 

of the affirmative defense provision in 

the Portland cement NESHAP would 

have a demonstrated causal connection 

to a given environmental impact (or 

undermine a specific enforcement 

action); the court decided the question 

based solely on the fundamental legal 

requirements of the CAA, which apply 

equally to SIPs. The court viewed the 

statutory requirements for enforcement 

of violations as a legal bar to the EPA’s 

creating an affirmative defense. The 

EPA believes that this decision supports 

the EPA’s view that an affirmative 

defense provision in a SIP that would 

operate to interfere with the rights of 

litigants to seek penalties for violations 

of the SIP or other statutory forms of 

relief, or to interfere with the 

jurisdiction of courts to assess penalties 

or other relief for such violations, is a 

substantial inadequacy because such 

provision would violate fundamental 

legal requirements of the CAA. This 

potential for interference with the 

intended enforcement structure of the 

CAA is sufficient to establish that such 

an affirmative defense provision is 

substantially inadequate to meet CAA 

requirements, and there is no need to 

demonstrate that the use of the 

affirmative defense would be causally 

connected to any particular impact (e.g., 

a specific violation of a NAAQS at a 

particular monitor on a particular day, 

or the undermining of effective 

enforcement for a particular violation by 

a particular source). By specifying that 

parties have the right to seek relief for 

violations and that courts have 

jurisdiction to impose relief for such 

violations, the EPA believes, Congress 

has already made the determination that 

SIP provisions have to be consistent 

with the requirements of CAA sections 

113 and 304 without regard to impact 

on other CAA requirements such as 

demonstrating attainment. Accordingly, 

the EPA has the authority and the 

responsibility to assure that SIP 

provisions meet the requirements of 

CAA sections 113 and 304 and do not 

undermine the enforcement structure 

for SIPs that was created in the CAA. 

VII. What is the EPA proposing through 

this SNPR for each of the specific 

affirmative defense provisions 

identified in the Petition or identified 

independently by the EPA? 

A. Overview of the EPA’s Evaluation of 

Specific Affirmative Defense SIP 

Provisions 

In addition to its overarching request 

that the EPA revise its interpretation of 

the CAA in the SSM Policy with respect 

to any form of affirmative defense 

provisions in SIPs, the Petitioner 

identified specific existing affirmative 

defense provisions that the Petitioner 

contended are not consistent with the 

EPA’s own interpretation of the CAA as 

expressed in the 1999 SSM Guidance. In 

general, the provisions identified by the 

Petitioner are structured as affirmative 

defense provisions, regardless of 

whether they use the term ‘‘affirmative 

defense’’ and regardless of whether the 

EPA ever specifically evaluated the 

provisions with respect to the 

recommendations for such provisions in 

the 1999 SSM Guidance. While not 

agreeing with the EPA’s guidance for 

affirmative defense provisions, the 

Petitioner expressed concern that all of 

the identified provisions fail to address 

some or all of the criteria for affirmative 

defense provisions that the EPA 

recommended in the 1999 SSM 

Guidance. 

In the February 2013 proposal notice, 

the EPA explained that it was reviewing 

each identified affirmative defense 

provision on the merits. At that time, 

the EPA was operating under the belief 

that its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs was correct. Accordingly, the 

EPA evaluated each of the provisions for 

consistency with the EPA’s 

interpretation of the CAA as set forth in 

the 1999 SSM Guidance and as it was 

revising its interpretation in the 

February 2013 proposal notice. The 

February 2013 proposal notice thus 

contained the EPA’s proposal to grant or 

to deny the Petition based on the EPA’s 

evaluation as to whether the provision 

at issue provides adequate criteria to 

provide only a narrow affirmative 

defense for violations due to 

malfunctions for sources under certain 

circumstances consistent with the 

overarching CAA objectives, such as 

attaining and maintaining the NAAQS. 

In addition, the EPA proposed to grant 

the Petition with respect to any 

identified provision that creates an 

affirmative defense applicable during 

planned startup and shutdown events, 

because such provisions are not 

consistent with the requirements of the 

CAA. 


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38Petition at 29–30. 

Now, however, the EPA is 

reevaluating each of the specific 

affirmative defense provisions identified 

by the Petitioner for consistency with 

the CAA in light of the court’s decision 

in NRDC v. EPA. As explained in 

section III.C of this SNPR, the EPA is 

revising its interpretation of the CAA 

concerning the legal basis for affirmative 

defense provisions. Given that the 

reasoning of the court applies equally to 

SIP provisions, the EPA is proposing to 

grant the Petition with respect to each 

of these provisions. Thus, the EPA is 

proposing to find that these provisions 

are substantially inadequate because 

they are not consistent with 

fundamental legal requirements of the 

CAA and the EPA is proposing to issue 

a SIP call to each affected state for these 

specific provisions. 

In addition to provisions identified by 

the Petitioner, the EPA is independently 

identifying other specific existing 

problematic affirmative defense 

provisions in SIPs. As a result, the EPA 

is newly including one or more 

affirmative defense provisions in the 

SIPs of the following four states: (1) 

New Mexico (Albuquerque-Bernalillo 

County); (2) Texas; (3) California 

(Eastern Kern Air Pollution Control 

District, Imperial County Air Pollution 

Control District and San Joaquin Valley 

Air Pollution Control District); and (4) 

Washington (Energy Facility Site 

Evaluation Council and Southwest 

Clean Air Agency). The EPA is 

including these additional affirmative 

defense provisions in this SNPR in 

order to provide comprehensive 

guidance to all states concerning such 

provisions in SIPs and to avoid 

confusion that may arise due to recent 

Agency administrative actions, litigation 

and resulting court decisions relevant to 

such provisions under the CAA. In 

particular, the EPA is concerned that its 

explicit approval of affirmative defense 

provisions in the SIPs of other states as 

being consistent with the requirements 

of the CAA as reflected in the 1999 SSM 

Guidance warrants affirmative action by 

the Agency to ask those states to revise 

their SIPs. Accordingly, the EPA is 

proposing to make a finding of 

substantial inadequacy for these 

additional affirmative defense 

provisions because they are not 

consistent with fundamental legal 

requirements of the CAA and the EPA 

is proposing to issue a SIP call with 

respect to each affected state for these 

specific provisions as well. 

B. Affected States in EPA Region III 

1. District of Columbia 

a. Petitioner’s Analysis 

The Petitioner objected to five 

provisions in the District of Columbia 

(DC) SIP as being inconsistent with the 

CAA and the EPA’s SSM Policy.38

Among the other alleged SIP 

deficiencies, the Petitioner objected to 

the provision in the DC SIP that 

provides an affirmative defense for 

violations of visible emission 

limitations during ‘‘unavoidable 

malfunction’’ (D.C. Mun. Regs. tit. 20 

§ 606.4). The Petitioner objected to this 

provision because the elements of the 

defense are not laid out clearly in the 

SIP, because the term ‘‘affirmative 

defense’’ is not defined in the SIP, and 

finally, the Petitioner argues, because 

affirmative defense provisions for any 

excess emissions are wholly 

inconsistent with the CAA and should 

be removed from the SIP. The 

Petitioner’s overarching claim was that 

CAA section 113 is a bar to affirmative 

defense provisions because EPA does 

not have authority to alter the 

jurisdiction of the courts to assess 

penalties or the factors that Congress 

directed the courts to consider. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to D.C. Mun. Regs. tit. 20 

§ 606.4 because it is not a permissible 

affirmative defense provision consistent 

with the requirements of the CAA and 

the EPA’s recommendations in the 

EPA’s SSM Policy. The EPA previously 

stated its belief that, by purporting to 

create a bar to enforcement that applies 

not only to monetary penalties but also 

to injunctive relief, this provision is 

inconsistent with the requirements of 

CAA sections 113 and 304. By not 

including sufficient criteria to assure 

that sources seeking to raise the 

affirmative defense have in fact been 

properly designed, maintained and 

operated, and to assure that sources 

have taken all appropriate steps to 

minimize excess emissions, the 

provision also fails to be sufficiently 

narrowly drawn to justify shielding 

from monetary penalties for violations. 

Thus, the EPA previously reasoned that 

this provision is not appropriate as an 

affirmative defense provision because it 

is inconsistent with fundamental 

requirements of the CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for D.C. Mun. Regs. tit. 20 § 606.4. The 

EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether the provision met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. The EPA 

interprets the provision of D.C. Mun. 

Regs. tit. 20 § 606.4 to create an 

impermissible affirmative defense for 

violations of visible emission 

limitations during ‘‘unavoidable 

malfunction’’ events. The provision 

operates to limit the jurisdiction of the 

federal court in an enforcement action 

and to preclude both liability and any 

form of judicial relief contemplated in 

CAA sections 113 and 304. Thus, the 

EPA believes that this provision 

interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For this reason, the EPA is proposing 

to find D.C. Mun. Regs. tit. 20 § 606.4 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

proposing to issue a SIP call with 

respect to this provision. The EPA notes 

that in this SNPR it is only addressing 

this provision with respect to its 

deficiency as an affirmative defense 

provision and is not revising its 

February 2013 proposal with respect to 

the proposed action on the other four 

provisions in the DC SIP that are at 

issue in the Petition. 

2. Virginia 

a. Petitioner’s Analysis 

The Petitioner objected to a generally 

applicable provision in the Virginia SIP 

that allows for discretionary exemptions 

during periods of malfunction (9 Va. 


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39Petition at 70–71. 

Admin. Code § 5–20–180(G)).39 The 

Petitioner objected to this provision on 

multiple grounds, including: (i) That it 

provides an exemption from the 

otherwise applicable SIP emission 

limitations; (ii) that it provides a 

discretionary exemption for excess 

emissions during malfunction because 

the provision gives the state the 

authority to determine whether a 

violation ‘‘shall be judged to have taken 

place’’; and (iii) that if intended as an 

affirmative defense provision it fails to 

meet EPA’s interpretation of the CAA 

with respect to such provisions for 

several reasons. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to 9 Va. Admin. Code § 5– 

20–180(G). The EPA explained that the 

provision at issue is deficient for several 

reasons, including the fact that it is not 

sufficient as an affirmative defense 

provision to meet CAA requirements. 

With respect to the deficiency of the 

provision as an affirmative defense, the 

EPA noted that even if it were to 

consider 9 Va. Admin. Code § 5–20– 

180(G) as providing for an affirmative 

defense rather than an automatic or 

discretionary exemption, the provision 

is not a permissible affirmative defense 

provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s recommendations in the 

EPA’s SSM Policy. The EPA previously 

stated its belief that, by purporting to 

create a bar to enforcement that applies 

not only to monetary penalties but also 

to injunctive relief, this provision is 

inconsistent with the requirements of 

CAA sections 113 and 304. The EPA 

also argued that by not including 

sufficient criteria to assure that sources 

seeking to raise the affirmative defense 

have in fact been properly designed, 

maintained and operated, and to assure 

that sources have taken all appropriate 

steps to minimize excess emissions, the 

provision fails to be sufficiently 

narrowly drawn to justify shielding 

from monetary penalties for violations. 

Thus, the EPA previously proposed to 

find that this provision is not 

appropriate as an affirmative defense 

provision because it is inconsistent with 

fundamental requirements of the CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for 9 Va. Admin. Code § 5–20–180(G). 

The EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. The EPA 

interprets the provision of 9 Va. Admin. 

Code § 5–20–180(G) to create an 

impermissible affirmative defense for 

violations of SIP emission limits. The 

provision would operate to limit the 

jurisdiction of the federal court in an 

enforcement action and to preclude both 

liability and any form of judicial relief 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that this 

provision interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find 9 Va. Admin. Code 

§ 5–20–180(G) substantially inadequate 

to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with 

respect to this provision. The EPA notes 

that in this SNPR it is only addressing 

this provision with respect to its 

deficiency as an affirmative defense 

provision and is not revising its 

February 2013 proposal notice with 

respect to the other separate bases for 

the finding of substantial inadequacy of 

this provision. 

3. West Virginia 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified one affirmative defense 

provision in the SIP for the state of West 

Virginia in W.Va. Code Section 45–2– 

9.4. This provision provides an 

affirmative defense available to sources 

for excess emissions that occur during 

malfunctions. The EPA notes that it has 

already proposed to make a finding of 

substantial inadequacy and to issue a 

SIP call for another related provision in 

W.Va. Code Section 45–2–9.1 for 

separate reasons not relevant here and 

the EPA is not reopening its February 

2013 proposal notice with respect to the 

latter SIP provision. 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. The affirmative defense in 

W.Va. Code Section 45–2–9.4 provides 

that if a source establishes certain 

factual criteria ‘‘to the satisfaction of’’ a 

state official, then the occurrence of a 

malfunction is an ‘‘affirmative defense.’’ 

The EPA notes that the affirmative 

defense for malfunctions in W.Va. Code 

Section 45–2–9.4 was not consistent 

with the EPA’s prior interpretation of 

the CAA and with its recommendations 

for such provisions in the 1999 SSM 

Guidance. Regardless of that fact, the 

EPA believes that this provision 

impermissibly purports to alter or 

eliminate the jurisdiction of federal 

courts to assess penalties or to impose 

other forms of relief for violations of SIP 

emission limits. Under this provision, if 

the source is able to establish that it met 

each of the specified criteria to the 

satisfaction of the state official, then the 

provision purports to bar any relief for 

those violations. Accordingly, the EPA 

believes that this affirmative defense 

provision is inconsistent with the 

fundamental enforcement structure of 

the CAA and the EPA thus believes that 


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40Petition at 32. 

the provision is not consistent with 

CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

the affirmative defense provision 

applicable to excess emissions that 

occur during malfunctions in W.Va. 

Code Section 45–2–9.4. The EPA is 

proposing to revise its interpretation of 

the CAA with respect to affirmative 

defense provisions in SIPs. Previously 

the EPA assessed whether such 

provisions met certain requirements, 

such as being limited to monetary 

penalties rather than injunctive relief 

and containing sufficiently robust 

criteria to assure that the defense 

applied only in appropriately narrow 

circumstances. Now, the Agency must 

evaluate such provisions to determine 

whether they are constructed in a way 

that would purport to preclude federal 

court jurisdiction under section 113 to 

assess civil penalties or other forms of 

relief for violations of SIP emission 

limits, to prevent courts from 

considering the statutory factors for the 

assessment of civil penalties under 

section 113 or to interfere with the 

rights of litigants to pursue enforcement 

consistent with their rights under the 

citizen suit provision of section 304. 

The EPA interprets W.Va. Code 

Section 45–2–9.4 to provide an 

affirmative defense that operates to limit 

the jurisdiction of the federal court in an 

enforcement action and to limit the 

authority of the court to impose 

monetary penalties or to impose other 

forms of relief as contemplated in CAA 

sections 113 and 304. Thus, the EPA 

believes that this provision interferes 

with the intended enforcement structure 

of the CAA, through which parties may 

seek to bring enforcement actions for 

violations of SIP emission limits and 

courts may exercise their jurisdiction to 

determine what, if any, relief is 

appropriate. 

For these reasons, the EPA is 

proposing to find W.Va. Code Section 

45–2–9.4 substantially inadequate to 

meet CAA requirements and thus the 

EPA is proposing to issue a SIP call with 

respect to this provision. The EPA notes 

that in this SNPR it is only addressing 

this provision with respect to its 

deficiency as an affirmative defense 

provision and is not revising its 

February 2013 proposal with respect to 

the proposed action on the other 

provisions in the West Virginia SIP that 

are at issue in the Petition. 

C. Affected States in EPA Region IV 

1. Georgia 

a. Petitioner’s Analysis 

The Petitioner objected to a provision 

in the Georgia SIP that provides for 

exemptions for excess emissions during 

startup, shutdown or malfunctions 

under certain circumstances (Ga. Comp. 

R. & Regs. 391–3–1–.02(2)(a)(7)).40 The 

Petitioner objected to this provision on 

multiple grounds, including: (i) That it 

provides an exemption from the 

otherwise applicable SIP emission 

limitations by providing that the excess 

emissions ‘‘shall be allowed’’ subject to 

certain conditions; (ii) that although the 

provision provides some ‘‘substantive 

criteria,’’ the provision does not meet 

the criteria the EPA recommends for an 

affirmative defense provision consistent 

with the requirements of the CAA in the 

EPA’s 1999 SSM Guidance; and (iii) that 

the provision is not a permissible 

‘‘enforcement discretion’’ provision 

applicable only to state personnel, 

because it ‘‘is susceptible to 

interpretation as an enforcement 

exemption, precluding EPA and citizen 

enforcement as well as state 

enforcement.’’ 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to Ga. Comp. R. & Regs. 

391–3–1–.02(2)(a)(7). The EPA 

explained that the provision at issue is 

deficient for several reasons, including 

the fact that it is not sufficient as an 

affirmative defense provision to meet 

CAA requirements. With respect to the 

deficiency of the provision as an 

affirmative defense, the EPA noted that 

Ga. Comp. R. & Regs. 391–3–1– 

.02(2)(a)(7) is not a permissible 

affirmative defense provision consistent 

with the requirements of the CAA as 

interpreted in the EPA’s 

recommendations in the EPA’s SSM 

Policy. By purporting to create a bar to 

enforcement that applies not only to 

monetary penalties but also to 

injunctive relief, the EPA reasoned that 

this provision is inconsistent with the 

requirements of CAA sections 113 and 

304. The EPA also argued that by not 

including sufficient criteria to assure 

that sources seeking to raise the 

affirmative defense have in fact been 

properly designed, maintained and 

operated, and to assure that sources 

have taken all appropriate steps to 

minimize excess emissions, the 

provision also fails to be sufficiently 

narrowly drawn to justify shielding 

from monetary penalties for violations. 

Moreover, the EPA previously reasoned 

that Ga. Comp. R. & Regs. 391–3–1– 

.02(2)(a)(7) was deficient because it 

applies not only to malfunctions but 

also to startup and shutdown events, 

contrary to the EPA’s interpretation of 

the CAA set forth in the February 2013 

proposal notice. Thus, the EPA 

previously proposed to find that Ga. 

Comp. R. & Regs. 391–3–1–.02(2)(a)(7) is 

not appropriate as an affirmative 

defense provision because it is 

inconsistent with fundamental 

requirements of the CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for Ga. Comp. R. & Regs. 391–3–1– 

.02(2)(a)(7). The EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. The EPA 

interprets the provision of Ga. Comp. R. 

& Regs. 391–3–1–.02(2)(a)(7) to create an 

impermissible affirmative defense for 

violations of SIP emission limits. The 

provision operates to limit the 

jurisdiction of the federal court in an 

enforcement action and to preclude both 

liability and any form of judicial relief 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that this 

provision interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Ga. Comp. R. & Regs. 

391–3–1–.02(2)(a)(7) substantially 

inadequate to meet CAA requirements 

and the EPA is thus proposing to issue 

a SIP call with respect to this provision. 


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41Petition at 29–30. 

42Petition at 47–49. 

43Petition at 48. 

44Petition at 47–48. 

The EPA notes that in this SNPR it is 

only addressing this provision with 

respect to its deficiency as an 

affirmative defense provision and is not 

revising its February 2013 proposal with 

respect to the other separate bases for 

the finding of substantial inadequacy of 

this provision. 

2. Mississippi 

a. Petitioner’s Analysis 

The Petitioner objected to three 

provisions in the Mississippi SIP as 

being inconsistent with the CAA and 

the EPA’s SSM Policy.41 Among the 

other alleged SIP deficiencies, the 

Petitioner objected to two generally 

applicable provisions in the Mississippi 

SIP that allow for affirmative defenses 

for violations of otherwise applicable 

SIP emission limitations during periods 

of upset, i.e., malfunctions (11–1–2 

Miss. Code R. § 10.1) and unavoidable 

maintenance (11–1–2 Miss. Code R. 

§ 10.3).42 First, the Petitioner objected to 

both of these provisions based on its 

assertion that the CAA allows no 

affirmative defense provisions in SIPs. 

Second, the Petitioner asserted that even 

if affirmative defense provisions were 

permissible under the CAA, the 

affirmative defenses in these provisions 

‘‘fall far short of the EPA policy.’’ 

Specifically, the Petitioner argued that 

the EPA’s guidance for affirmative 

defenses recommends that they ‘‘are not 

appropriate where a single source or a 

small group of sources has the potential 

to cause an exceedance of the NAAQS 

or PSD increments,’’ 43 and 

Mississippi’s provisions do not contain 

a restriction to address this point. 

Further, the Petitioner argued that the 

affirmative defenses in Mississippi’s SIP 

are not limited to actions seeking civil 

penalties and that they fail to meet other 

criteria ‘‘that EPA requires for 

acceptable defense provisions.’’ 44

Finally, the Petitioner argued that the 

CAA and the EPA’s SSM Policy 

interpreting it do not allow affirmative 

defenses for excess emissions during 

maintenance events under any 

circumstances. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to 11–1–2 Miss. Code R. 

§ 10.1 and 11–1–2 Miss. Code R. § 10.3 

because they are deficient affirmative 

defense provisions. By purporting to 

create a bar to enforcement that applies 

not only to monetary penalties but also 

to injunctive relief, the EPA reasoned 

that these provisions are inconsistent 

with the requirements of CAA sections 

113 and 304. The EPA also argued that 

by not including sufficient criteria to 

assure that sources seeking to raise these 

affirmative defenses have in fact been 

properly designed, maintained and 

operated, and to assure that sources 

have taken all appropriate steps to 

minimize excess emissions, the 

provision also fails to be sufficiently 

narrowly drawn to justify shielding 

from monetary penalties for violations 

during malfunctions. With respect to the 

comparable affirmative defense for 

maintenance in 11–1–2 Miss. Code R. 

§ 10.3, the EPA reiterated its long held 

position that no affirmative defense is 

appropriate for violations that occur 

during maintenance because 

maintenance is a normal mode of source 

operation during which the source 

should be expected to comply with the 

applicable emission limitations. Thus, 

the EPA previously proposed to find 

that 11–1–2 Miss. Code R. § 10.1 and 

11–1–2 Miss. Code R. § 10.3 are not 

appropriate as affirmative defense 

provisions because they are inconsistent 

with fundamental requirements of the 

CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for 11–1–2 Miss. Code R. § 10.1 and 11– 

1–2 Miss. Code R. § 10.3. The EPA is 

proposing to revise its interpretation of 

the CAA with respect to affirmative 

defense provisions in SIPs. Previously 

the EPA assessed whether the provision 

met certain requirements, such as being 

limited to monetary penalties rather 

than injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. The EPA 

interprets the provisions of 11–1–2 

Miss. Code R. § 10.1 and 11–1–2 Miss. 

Code R. § 10.3 to create an 

impermissible affirmative defenses for 

violations of SIP emission limits. These 

provisions operate to limit the 

jurisdiction of the federal court in an 

enforcement action and to preclude both 

liability and any form of judicial relief 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that these 

provisions interfere with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find 11–1–2 Miss. Code R. 

§ 10.1 and 11–1–2 Miss. Code R. § 10.3 

provisions substantially inadequate to 

meet CAA requirements and the EPA is 

thus proposing to issue a SIP call with 

respect to these provisions. The EPA 

notes that in this SNPR it is only 

addressing 11–1–2 Miss. Code R. § 10.1 

and 11–1–2 Miss. Code R. § 10.3 with 

respect to the deficiency as affirmative 

defense provisions and is not revising 

its February 2013 proposal with respect 

to another SIP provision, 11–1–2 Miss. 

Code R. § 10.2, for which the EPA has 

proposed to make a finding of 

substantial inadequacy and to issue a 

SIP call on different grounds. 

3. South Carolina 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified one affirmative defense 

provision in the SIP for the state of 

South Carolina in S.C. Code Ann. Regs. 

62.1, Section II(G)(6). This provision 

provides that permits for certain sources 

may contain an affirmative defense for 

excess emissions that occur during 

emergencies. The permits at issue 

embody federally enforceable emission 

limits that assure the sources will 

remain below the threshold for major 

stationary sources subject to the 

permitting requirements of title V of the 

CAA. By accepting these emission limits 

in permits as authorized by this 

provision of the state’s SIP, these 

sources are treated as minor sources 

rather than major sources for regulatory 

purposes. 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 


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45Petition at 33–36. 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. The affirmative defense in S.C. 

Code Ann. Regs. 62.1, Section II(G)(6) 

provides that if a source meets certain 

factual criteria, then the occurrence of 

an emergency is an ‘‘affirmative 

defense’’ for any technology-based 

emission limitation violations that occur 

during the emergency. The affirmative 

defense is not limited to monetary 

penalties and appears to bar any form of 

relief if the source meets the criteria for 

the defense. The EPA notes that the 

affirmative defense for emergencies in 

S.C. Code Ann. Regs. 62.1, Section 

II(G)(6) was not consistent with the 

EPA’s prior interpretation of the CAA 

and with its recommendations for such 

provisions in the 1999 SSM Guidance. 

Regardless of that fact, the EPA believes 

that this provision impermissibly 

purports to alter or eliminate the 

jurisdiction of federal courts to assess 

penalties or to impose other forms of 

relief for violations of federally 

enforceable SIP or permit emission 

limits. Under this provision, if the 

source is able to establish that it met 

each of the specified criteria, then the 

provision purports to bar any relief for 

those violations. Accordingly, the EPA 

believes that this affirmative defense 

provision is inconsistent with the 

fundamental enforcement structure of 

the CAA and the EPA thus believes that 

the provision is not consistent with 

CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

the affirmative defense provisions 

applicable to excess emissions that 

occur during emergencies in S.C. Code 

Ann. Regs. 62.1, Section II(G)(6). The 

EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets S.C. Code Ann. 

Regs. 62.1, Section II(G)(6) to provide an 

affirmative defense that operates to limit 

the jurisdiction of the federal court in an 

enforcement action and to limit the 

authority of the court to impose 

monetary penalties or to impose other 

forms of relief as contemplated in CAA 

sections 113 and 304. Thus, the EPA 

believes that this provision interferes 

with the intended enforcement structure 

of the CAA, through which parties may 

seek to bring enforcement actions for 

violations of SIP emission limits and 

courts may exercise their jurisdiction to 

determine what, if any, relief is 

appropriate. 

For these reasons, the EPA is 

proposing to find S.C. Code Ann. Regs. 

62.1, Section II(G)(6) substantially 

inadequate to meet CAA requirements 

and the EPA is thus proposing to issue 

a SIP call with respect to this provision. 

The EPA notes that in this SNPR it is 

only addressing this provision with 

respect to its deficiency as an 

affirmative defense provision and is not 

revising its February 2013 proposal with 

respect to the proposed action on the 

other provisions in the South Carolina 

SIP that are at issue in the Petition. 

D. Affected States in EPA Region V 

1. Illinois 

a. Petitioner’s Analysis 

The Petitioner objected to three 

generally applicable provisions in the 

Illinois SIP (Ill. Admin. Code tit. 35 

§ 201.261, Ill. Admin. Code tit. 35 

§ 201.262 and Ill. Admin. Code tit. 35 

§ 201.265) which the Petitioner argued 

have the effect of providing 

discretionary exemptions from 

otherwise applicable SIP emission 

limitations.45 The Petitioner objected to 

these provisions on multiple grounds, 

including: (i) that the provisions invite 

sources to request, during the permitting 

process, advance permission to continue 

to operate during a malfunction or 

breakdown and to request advance 

permission to ‘‘violate’’ otherwise 

applicable emission limitations during 

startup; (ii) that the provisions state 

that, once granted, the advance 

permission to violate the emission 

limitations ‘‘shall be a prima facie 

defense to an enforcement action’’; and 

(iii) that the term ‘ ‘‘prima facie defense’ 

is ambiguous in its operation.’’ The 

Petitioner argued that the latter 

provision is not clear regarding whether 

the defense is to be evaluated ‘‘in a 

judicial or administrative proceeding or 

whether the Agency determines its 

availability.’’ Allowing defenses to be 

raised in these undefined contexts, the 

Petitioner argued, is ‘‘inconsistent with 

the enforcement structure of the Clean 

Air Act.’’ The Petitioner asserted that ‘‘if 

. . . the ‘prima facie defense’ is 

anything short of the ‘affirmative 

defense,’ ’’ as contemplated in the 1999 

SSM Guidance, then ‘‘it clearly has the 

potential to interfere with EPA and 

citizen enforcement.’’ 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to Ill. Admin. Code tit. 35 

§ 201.261, Ill. Admin. Code tit. 35 

§ 201.262 and Ill. Admin. Code tit. 35 

§ 201.265. The EPA proposed to grant 

the Petition for these provisions even 

though the state has asserted that the 

effect of these provisions together only 

provides sources with a prima facie 

defense in an enforcement proceeding. 

Even if interpreted to provide an 

affirmative defense rather than an 

automatic or discretionary exemption, 

however, the EPA previously noted that 

the provisions do not provide a 

permissible affirmative defense 

provision consistent with the 

requirements of the CAA as interpreted 

in the EPA’s recommendations in the 

EPA’s SSM Policy. 

In the February 2013 proposal notice, 

the EPA enumerated various ways in 

which the provisions were not 

consistent with the EPA’s 

recommendations in the EPA’s SSM 

Policy interpreting the CAA: (i) It is not 

clear that the defense applies only to 

monetary penalties, which is 

inconsistent with the requirements of 

CAA sections 113 and 304; (ii) the 

defense applies to violations that 

occurred during startup periods, which 


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46Petition at 36–37. 

is inconsistent with CAA sections 113 

and 304; (iii) the provisions shift the 

burden of proof to the enforcing party; 

and (iv) the provisions do not include 

sufficient criteria to assure that sources 

seeking to raise the affirmative defense 

have in fact been properly designed, 

maintained and operated, and to assure 

that sources have taken all appropriate 

steps to minimize excess emissions. 

Accordingly, even if Ill. Admin. Code 

tit. 35 § 201.261, Ill. Admin. Code tit. 35 

§ 201.262 and Ill. Admin. Code tit. 35 

§ 201.265 are together interpreted to 

provide a prima facie defense to 

enforcement rather than to provide 

exemptions, the EPA already proposed 

to find that these provisions are 

substantially inadequate to meet CAA 

requirements and thus proposed to issue 

a SIP call with respect to these 

provisions. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for Ill. Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262 and Ill. 

Admin. Code tit. 35 § 201.265. The EPA 

is proposing to revise its interpretation 

of the CAA with respect to affirmative 

defense provisions in SIPs. Previously 

the EPA assessed whether such 

provisions met certain requirements, 

such as being limited to monetary 

penalties rather than injunctive relief 

and containing sufficiently robust 

criteria to assure that the defense 

applied only in appropriately narrow 

circumstances. Now, the Agency must 

evaluate such provisions to determine 

whether they are constructed in a way 

that would purport to preclude federal 

court jurisdiction under section 113 to 

assess civil penalties or other forms of 

relief for violations of SIP emission 

limits, to prevent courts from 

considering the statutory factors for the 

assessment of civil penalties under 

section 113 or to interfere with the 

rights of litigants to pursue enforcement 

consistent with their rights under the 

citizen suit provision of section 304. To 

the extent that Ill. Admin. Code tit. 35 

§ 201.261, Ill. Admin. Code tit. 35 

§ 201.262 and Ill. Admin. Code tit. 35 

§ 201.265 together do provide only a 

defense as characterized by the state 

rather than an exemption, the EPA 

believes that they create an 

impermissible affirmative defense for 

violations of SIP emission limits. These 

provisions would operate together to 

limit the jurisdiction of the federal court 

in an enforcement action and to 

preclude both liability and any form of 

judicial relief contemplated in CAA 

sections 113 and 304. Thus, the EPA 

believes that these provisions interfere 

with the intended enforcement structure 

of the CAA, through which parties may 

seek to bring enforcement actions for 

violations of SIP emission limits and 

courts may exercise their jurisdiction to 

determine what, if any, relief is 

appropriate. 

For these reasons, the EPA is 

proposing to find Ill. Admin. Code tit. 

35 § 201.261, Ill. Admin. Code tit. 35 

§ 201.262 and Ill. Admin. Code tit. 35 

§ 201.265 substantially inadequate to 

meet CAA requirements and the EPA is 

thus proposing to issue a SIP call with 

respect to these provisions. The EPA 

notes that in this SNPR it is only 

addressing these provisions with respect 

to their deficiency as an affirmative 

defense and is not revising its February 

2013 proposal notice with respect to the 

other separate bases for the finding of 

substantial inadequacy for these 

provisions. 

2. Indiana 

a. Petitioner’s Analysis 

The Petitioner objected to a generally 

applicable provision in the Indiana SIP 

that allows for discretionary exemptions 

during malfunctions (326 Ind. Admin. 

Code 1–6–4(a)).46 The Petitioner 

objected to this provision on multiple 

grounds, including: (i) That it provides 

an exemption from the otherwise 

applicable SIP emission limitations; (ii) 

that it is ambiguous because it provides 

that excess emissions during 

malfunction periods ‘‘shall not be 

considered a violation’’ if the source 

demonstrates that a number of 

conditions are met, but it does not 

specify to whom or in what forum such 

demonstration must be made; (iii) that 

if the foregoing demonstration need 

only be made to the satisfaction of the 

state, then this would give a state 

official the sole authority to determine 

that the excess emissions were not a 

violation and could thus be read to 

preclude enforcement by the EPA or 

citizens; and (iv) that if the 

demonstration is to be made in an 

enforcement context, then the provision 

could be interpreted as providing an 

affirmative defense, but one that is 

inconsistent with the requirements of 

the CAA as interpreted in the EPA’s 

SSM Policy. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to 326 Ind. Admin. Code 1– 

6–4(a). The EPA noted at that time that 

even if it were to interpret 326 Ind. 

Admin. Code 1–6–4(a) to be an 

affirmative defense applicable in an 

enforcement context, then the provision 

is not consistent with the EPA’s 

recommendations for such affirmative 

defenses in the EPA’s SSM Policy 

interpreting the CAA. By purporting to 

create a bar to enforcement that applies 

not just to monetary penalties but also 

to injunctive relief, and by including 

criteria inconsistent with those 

recommended by the EPA for 

affirmative defense provisions, this 

provision is inconsistent with the 

requirements of CAA sections 113 and 

304. For these reasons, the EPA 

previously proposed to find that 326 

Ind. Admin. Code 1–6–4(a) is 

substantially inadequate to meet CAA 

requirements and proposed to issue a 

SIP call with respect to this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for 326 Ind. Admin. Code 1–6–4(a). The 

EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

To the extent that 326 Ind. Admin. 

Code 1–6–4(a) provides only a defense 

rather than an exemption, the EPA 

believes that it creates an impermissible 

affirmative defense for violations of SIP 

emission limits. The provision would 

operate to limit the jurisdiction of the 

federal court in an enforcement action 

and to preclude both liability and any 

form of judicial relief contemplated in 

CAA sections 113 and 304. Thus, the 

EPA believes that this provision 

interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
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47Petition at 44–46. 

48Petition at 24. The Petitioner cites to 014–01– 

1 Ark. Code R. §§ 19.1004(H) and 19.602. The EPA 

interprets these citations as references to Reg. 

19.1004(H) and Reg. 19.602 of the Arkansas 

Pollution Control & Ecology Commission 

(APC&EC), Regulation No. 19—Regulations of the 

Arkansas Plan of Implementation for Air Pollution 

Control, as approved by the EPA on Apr. 12, 2007 

(72 FR 18394). For ease of description, we refer 

herein to Reg. 19.602. 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find 326 Ind. Admin. Code 

1–6–4(a) substantially inadequate to 

meet CAA requirements and the EPA is 

thus proposing to issue a SIP call with 

respect to this provision. The EPA notes 

that in this SNPR it is only addressing 

this provision with respect to its 

deficiency as an affirmative defense and 

is not revising its February 2013 

proposal notice with respect to the other 

separate bases for the finding of 

substantial inadequacy for the 

provision. 

3. Michigan 

a. Petitioner’s Analysis 

The Petitioner objected to a generally 

applicable provision in Michigan’s SIP 

that provides for an affirmative defense 

to monetary penalties for violations of 

otherwise applicable SIP emission 

limitations during periods of startup 

and shutdown (Mich. Admin. Code r. 

336.1916).47 The Petitioner objected to 

this provision on multiple grounds, 

including: (i) That one of the criteria in 

the affirmative defense provision, Mich. 

Admin. Code r. 336.1916, makes the 

defense available to a single source or 

small group of sources as long as such 

source did not ‘‘cause[] an exceedance 

of the national ambient air quality 

standards or any applicable prevention 

of significant deterioration increment’’ 

thereby applying to sources with the 

‘‘potential’’ to cause violations of the 

NAAQS contrary to the 

recommendations of EPA’s 1999 SSM 

Guidance; and (ii) that the affirmative 

defense provision is available for 

violations of ‘‘an applicable emission 

limitation,’’ which Petitioner argued 

could be construed by a court to include 

‘‘limits derived from federally 

promulgated technology based 

standards, such as NSPSs and 

NESHAPs,’’ contrary to EPA’s 

interpretation of the CAA in the 1999 

SSM Guidance to preclude SIP-based 

affirmative defenses for violations of 

these federal technology-based 

standards. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to Mich. Admin. Code r. 

336.1916, which provides for an 

affirmative defense to violations of 

applicable emission limitations during 

startup and shutdown events. The EPA 

noted at that time that an affirmative 

defense for excess emissions that occur 

during planned events such as startup 

and shutdown was contrary to the EPA’s 

then current interpretation of the CAA 

to allow such affirmative defenses only 

for events beyond the control of the 

source, i.e., during malfunctions. In the 

February 2013 proposal notice, the EPA 

proposed to revise its SSM Policy to 

reflect this interpretation of the CAA, 

and to update the recommendations it 

previously made concerning affirmative 

defense provisions applicable to startup 

and shutdown events in the 1999 SSM 

Guidance. For this reason, the EPA 

previously proposed to find that Mich. 

Admin. Code r. 336.1916 is 

substantially inadequate to meet CAA 

requirements and proposed to issue a 

SIP call with respect to this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for Mich. Admin. Code r. 336.1916. The 

EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets Mich. Admin. 

Code r. 336.1916 to provide an 

affirmative defense that operates to limit 

the jurisdiction of the federal court in an 

enforcement action and to preclude both 

liability and any form of judicial relief 

contemplated in CAA sections 113 and 

304. The fact that this affirmative 

defense applies during planned and 

predictable events exacerbates this 

problem, but even if the provision were 

applicable only to genuine malfunction 

events it is not a permissible SIP 

provision. Thus, the EPA believes that 

this provision interferes with the 

intended enforcement structure of the 

CAA, through which parties may seek to 

bring enforcement actions for violations 

of SIP emission limits and courts may 

exercise their jurisdiction to determine 

what, if any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Mich. Admin. Code r. 

336.1916 substantially inadequate to 

meet CAA requirements and the EPA is 

thus proposing to issue a SIP call with 

respect to this provision. 

E. Affected States and Local 

Jurisdictions in EPA Region VI 

1. Arkansas 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the Arkansas SIP as 

inconsistent with the CAA and the 

EPA’s SSM Policy.48 One of these 

provisions, Reg. 19.602, provides an 

‘‘affirmative defense’’ applicable to 

violations by sources in certain 

circumstances. The Petitioner objected 

to Reg. 19.602 because it provides a 

‘‘complete affirmative defense’’ for 

excess emissions that occur during 

emergency conditions. The Petitioner 

argued that this provision, which the 

state may have modeled after the EPA’s 

title V regulations, is impermissible 

because its application is not clearly 

limited to operating permits. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to Reg. 19.602. The EPA 

explained its view that Reg. 19.602 is an 

impermissible affirmative defense 

provision because it does not explicitly 

limit the defense to monetary penalties, 

it establishes criteria that are 

inconsistent with those recommended 

in the EPA’s SSM Policy, and it can be 

read to create different or additional 

defenses from those that are provided in 

underlying federal technology-based 

emission limitations. As a consequence, 

the EPA reasoned that Reg. 19.602 is 

inconsistent with the requirements for 

SIP provisions in CAA sections 

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

For these reasons, the EPA previously 

proposed to find that Reg. 19.602 is 

substantially inadequate to meet CAA 

requirements and proposed to issue a 

SIP call with respect to this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 


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49Petition at 54–57. The EPA interprets the 

Petitioner’s reference to N.M. Code R. § 20.2.7.111, 

N.M. Code R. § 20.2.7.112 and N.M. Code R. 

§ 20.2.7.113 as citations to 20.2.7.111 NMAC, 

20.2.7.112 NMAC and 20.2.7.113 NMAC, as 

approved by the EPA on Sept. 14, 2009 (74 FR 

46910) (hereinafter referred to as 20.2.7.111 NMAC, 

20.2.7.112 NMAC and 20.2.7.113 NMAC). 

substantial inadequacy and the SIP call 

for Reg. 19.602. The EPA is proposing 

to revise its interpretation of the CAA 

with respect to affirmative defense 

provisions in SIPs. Previously the EPA 

assessed whether such provisions met 

certain requirements, such as being 

limited to monetary penalties rather 

than injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets Reg. 19.602 to 

provide an affirmative defense that 

operates to limit the jurisdiction of the 

federal court in an enforcement action 

and to preclude both liability and any 

form of judicial relief contemplated in 

CAA sections 113 and 304. Thus, the 

EPA believes that this provision 

interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Reg. 19.602 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

proposing to issue a SIP call with 

respect to this provision. The EPA notes 

that in this SNPR it is only addressing 

this provision with respect to its 

deficiency as an affirmative defense 

provision and is not revising its 

February 2013 proposal with respect to 

the proposed action on the other 

provision in the Arkansas SIP that is at 

issue in the Petition. 

2. New Mexico 

a. Petitioner’s Analysis 

The Petitioner objected to three 

provisions in the New Mexico SIP that 

provide affirmative defenses for excess 

emissions that occur during 

malfunctions (20.2.7.111 NMAC), 

during startup and shutdown 

(20.2.7.112 NMAC), and during 

emergencies (20.2.7.113 NMAC).49 The 

Petitioner objected to the inclusion of 

these provisions in the SIP based on its 

view that affirmative defense provisions 

are always inconsistent with CAA 

requirements. The Petitioner also argued 

that each of these affirmative defenses is 

generally available to all sources, which 

is in contravention of the EPA’s 

recommendation in the SSM Policy that 

affirmative defenses should not be 

available to ‘‘a single source or groups 

of sources that has the potential to cause 

an exceedance of the NAAQS.’’ Finally, 

the Petitioner argued that the affirmative 

defense provision applicable to 

emergency events is impermissible 

because it was modeled after the EPA’s 

title V regulations, which are not meant 

to apply to SIP provisions. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to 20.2.7.112 NMAC, 

which includes an affirmative defense 

applicable during startup and shutdown 

events that is contrary to the EPA’s 

interpretation of the CAA. The EPA 

noted at that time that an affirmative 

defense for excess emissions that occur 

during planned events such as startup 

and shutdown was contrary to the EPA’s 

current interpretation of the CAA to 

allow such affirmative defenses only for 

events beyond the control of the source, 

i.e., during malfunctions. In the 

February 2013 proposal notice, the EPA 

proposed to revise its SSM Policy to 

reflect this interpretation of the CAA, 

and to update the recommendations it 

previously made concerning affirmative 

defense provisions applicable to startup 

and shutdown events in the 1999 SSM 

Guidance. The EPA also proposed to 

grant the Petition with respect to 

20.2.7.111 NMAC, which includes an 

affirmative defense applicable during 

malfunction events. The EPA previously 

reasoned that this provision is 

inconsistent with the CAA because it 

neither limits the defense to only those 

sources that do not have the potential to 

cause exceedances of the NAAQS or 

PSD increments nor requires sources to 

make an ‘‘after the fact’’ showing that no 

such exceedances actually occurred as 

an element of the affirmative defense. 

Finally, the EPA proposed to grant the 

Petition with respect to 20.2.7.113 

NMAC. The EPA previously stated its 

belief that this provision is an 

impermissible affirmative defense 

because it does not explicitly limit the 

defense to monetary penalties, it 

establishes criteria that are inconsistent 

with those in the EPA’s SSM Policy, and 

it can be read to create different or 

additional defenses from those that are 

provided in underlying federal 

technology-based emission limitations. 

Thus, the EPA previously proposed to 

find that all three of these provisions are 

inconsistent with CAA sections 

110(a)(2)(A), 110(a)(2)(C) and 302(k), 

and with respect to CAA sections 113 

and 304. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for the affirmative defense provisions 

applicable to excess emissions that 

occur during malfunctions (20.2.7.111 

NMAC), during startup and shutdown 

(20.2.7.112 NMAC), and during 

emergencies 20.2.7.113 NMAC). The 

EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets 20.2.7.111 NMAC 

and 20.2.7.112 NMAC to provide 

affirmative defenses that operate to limit 

the jurisdiction of the federal court in an 

enforcement action and to limit the 

authority of the court to impose 

monetary penalties as contemplated in 

CAA sections 113 and 304. As to 

20.2.7.113 NMAC, the EPA interprets 

this provision to operate to limit the 

jurisdiction of the federal court in an 

enforcement action and to limit the 

authority of the court to impose any 

form of relief contemplated in CAA 

sections 113 and 304. Thus, the EPA 

believes that each of these provisions 

interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 


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55944 Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules 

50See, ‘‘Approval and Promulgation of 

Implementation Plans; Albuquerque-Bernalillo 

County, NM; Excess Emissions,’’ 75 FR 5698 (Feb. 

4, 2010). 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find 20.2.7.111 NMAC, 

20.2.7.112 NMAC and 20.2.7.113 NMAC 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

proposing to issue a SIP call with 

respect to these provisions. 

3. New Mexico: Albuquerque-Bernalillo 

County 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified three affirmative defense 

provisions in the SIP for the state of 

New Mexico that apply in the 

Albuquerque-Bernalillo County area. 

These provisions provide affirmative 

defenses available to sources for excess 

emissions that occur during 

malfunctions (20.11.49.16.A NMAC), 

during startup and shutdown 

(20.11.49.16.B NMAC) and during 

emergencies (20.11.49.16.C NMAC). The 

EPA acknowledges that it explicitly 

approved these affirmative defense 

provisions in 2010, after ascertaining 

that they were consistent with the 

Agency’s interpretation of the CAA and 

its recommendations for such 

provisions in the 1999 SSM Guidance, 

applicable at that point in time.50

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Although the EPA previously 

determined that 20.11.49.16.A NMAC, 

20.11.49.16.B NMAC and 20.11.49.16.C 

NMAC were consistent with CAA 

requirements, the Agency now believes 

that these provisions impermissibly 

purport to alter or eliminate the 

jurisdiction of federal courts to assess 

penalties for violations of SIP emission 

limits. In the case of the affirmative 

defenses applicable to malfunctions and 

to startup and shutdown, the provisions 

set forth the elements of an affirmative 

defense to be asserted by sources in the 

event of violations during such events. 

In the case of the affirmative defense 

applicable to emergencies, the provision 

sets forth the elements of an affirmative 

defense to be asserted in the event of 

violations during emergencies. For each 

of these affirmative defense provisions, 

if the source is able to establish that it 

met each of the specified criteria to a 

trier of fact in an enforcement 

proceeding, then the provision purports 

to bar any civil penalties for those 

violations (and in the case of the 

affirmative defense for emergencies 

could be construed to bar other forms of 

relief as well). Accordingly, the EPA 

believes that each of these affirmative 

defense provisions is inconsistent with 

the fundamental enforcement structure 

of the CAA and the EPA thus believes 

that these provisions are not consistent 

with CAA requirements for SIP 

provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

the affirmative defense provisions 

applicable to excess emissions that 

occur during malfunctions 

(20.11.49.16.A NMAC), during startup 

and shutdown (20.11.49.16.B NMAC) 

and during emergencies (20.11.49.16.C 

NMAC). The EPA is proposing to revise 

its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets 20.11.49.16.A 

NMAC and 20.11.49.16.B NMAC to 

provide affirmative defenses that 

operate to limit the jurisdiction of the 

federal court in an enforcement action 

and to limit the authority of the court to 

impose monetary penalties as 

contemplated in CAA sections 113 and 

304. As to 20.11.49.16.C NMAC, the 

EPA interprets this provision to operate 

to limit the jurisdiction of the federal 

court in an enforcement action and to 

limit the authority of the court to 

impose any form of relief contemplated 

in CAA sections 113 and 304. Thus, the 

EPA believes that each of these 

provisions interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find 20.11.49.16.A NMAC, 

20.11.49.16.B NMAC and 20.11.49.16.C 

NMAC substantially inadequate to meet 

CAA requirements and the EPA is thus 

proposing to issue a SIP call with 

respect to these provisions. The EPA 

notes that removal of 20.11.49.16.A 

NMAC, 20.11.49.16.B NMAC and 

20.11.49.16.C NMAC from the SIP will 

render 20.11.49.16.D NMAC, 

20.11.49.16.E, 20.11.49.15.B (15) 

(concerning reporting by a source of 

intent to assert an affirmative defense 

for a violation), a portion of 20.11.49.6 

NMAC (concerning the objective of 

establishing affirmative defense 

provisions) and 20.11.49.18 NMAC 

(concerning actions where a 

determination has been made under 

20.11.49.16.E NMAC) superfluous and 

no longer operative, and the EPA thus 

recommends that these provisions be 

removed as well. 

4. Texas 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 


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51The EPA notes that ‘‘upsets’’ and ‘‘unplanned 

events’’ in these provisions are what are more 

commonly referred to as malfunctions, as confirmed 

by the state at the time the EPA approved these 

provisions as part of the SIP. See, ‘‘Approval and 

Promulgation of Implementation Plans; Texas; 

Excess Emissions During Startup, Shutdown, 

Maintenance, and Malfunction,’’ 75 FR 68989 (Nov. 

10, 2010). 52Petition at 25–27. 

has identified four affirmative defense 

provisions in the SIP for the state of 

Texas. These provisions provide 

affirmative defenses available to sources 

for excess emissions that occur during 

upsets (30 TAC 101.222(b)), unplanned 

events (30 TAC 101.222(c)), upsets with 

respect to opacity limits (30 TAC 

101.222(d)) and unplanned events with 

respect to opacity limits (30 TAC 

101.222(e)).51 The EPA acknowledges 

that it explicitly approved these 

affirmative defense provisions in 2010, 

after ascertaining that they were 

consistent with the Agency’s 

interpretation of the CAA and its 

recommendations for such provisions in 

the 1999 SSM Guidance, applicable at 

that point in time. Moreover, the EPA 

defended its approval of these specific 

provisions (as well as its disapproval of 

related provisions relevant to 

affirmative defenses for planned events) 

in litigation in the U.S. Court of Appeals 

for the 5th Circuit. 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Although the EPA previously 

determined that 30 TAC 101.222(b), 30 

TAC 101.222(c), 30 TAC 101.222(d) and 

30 TAC 101.222(e) were consistent with 

CAA requirements, the Agency now 

believes that these provisions 

impermissibly purport to alter or 

eliminate the jurisdiction of federal 

courts to assess penalties for violations 

of SIP emission limits. For all of these 

affirmative defenses applicable to upsets 

and unplanned events, the provisions 

set forth the elements of an affirmative 

defense to be asserted by sources in the 

event of violations during such events. 

For each of these affirmative defense 

provisions, if the source is able to 

establish that it met each of the 

specified criteria to a trier of fact in an 

enforcement proceeding, then the 

provision purports to bar any civil 

penalties for those violations. 

Accordingly, the EPA believes that each 

of these affirmative defense provisions 

is inconsistent with the fundamental 

enforcement structure of the CAA and 

the EPA thus believes that these 

provisions are not consistent with CAA 

requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

the affirmative defense provisions 

applicable to excess emissions that 

occur during upsets (30 TAC 

101.222(b)), unplanned events (30 TAC 

101.222(c)), upsets with respect to 

opacity limits (30 TAC 101.222(d)), and 

unplanned events with respect to 

opacity limits (30 TAC 101.222(e)). The 

EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets 30 TAC 

101.222(b), 30 TAC 101.222(c), 30 TAC 

101.222(d), and 30 TAC 101.222(e) to 

provide affirmative defenses that 

operate to limit the jurisdiction of the 

federal court in an enforcement action 

and to limit the authority of the court to 

impose monetary penalties as 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that each of 

these provisions interferes with the 

intended enforcement structure of the 

CAA, through which parties may seek to 

bring enforcement actions for violations 

of SIP emission limits and courts may 

exercise their jurisdiction to determine 

what, if any, relief is appropriate. The 

EPA appreciates the efforts previously 

undertaken by the state to amend its SIP 

to make it consistent with the CAA, as 

interpreted in the Agency’s 1999 SSM 

Guidance, but the EPA must now revise 

its SSM Policy with respect to 

affirmative defense provisions in SIPs. 

For these reasons, the EPA is 

proposing to find 30 TAC 101.222(b), 30 

TAC 101.222(c), 30 TAC 101.222(d) and 

30 TAC 101.222(e) substantially 

inadequate to meet CAA requirements 

and the EPA is thus proposing to issue 

a SIP call with respect to these 

provisions. The EPA notes that removal 

of these four provisions from the SIP 

will render cross-references to these 

provisions in 30 TAC 101.221(e) (as it 

applies to 30 TAC 101.222(b)–(e)), 30 

TAC 101.222(f) and 30 TAC 101.222(g) 

superfluous and no longer operative, 

and the EPA thus recommends that 

these provisions be removed as well. 

F. Affected State in EPA Region VIII: 

Colorado 

1. Petitioner’s Analysis 

The Petitioner objected to two 

affirmative defense provisions in the 

Colorado SIP that provide for 

affirmative defenses to qualifying 

sources during malfunctions (5 Colo. 

Code Regs § 1001–2(II.E)) and during 

periods of startup and shutdown (5 

Colo. Code Regs § 1001–2(II.J)).52 The 

Petitioner acknowledged that this state 

has correctly revised its SIP in 

important ways in order to be consistent 

with CAA requirements, as interpreted 

in the EPA’s SSM Policy, including 

providing affirmative defense provisions 

that are limited to monetary penalties, 

that do not apply in actions to enforce 

federal standards such as NSPS or 

NESHAP approved into the SIP, and 

that meet ‘‘almost word for word’’ the 

recommendations of the 1999 SSM 

Guidance. Nevertheless, the Petitioner 

had two concerns with these SIP 

provisions. 

First, the Petitioner objected to both of 

these provisions based on its assertion 

that the CAA allows no affirmative 

defense provisions in SIPs. Second, the 

Petitioner asserted that even if 

affirmative defense provisions were 

permissible under the CAA, the state 


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53 Id. at 25. 

54See, 5 Colo. Code Regs § 1001–2(II.E.1.j). 55Petition at 20–22. 

had properly followed EPA guidance in 

the affirmative defense provision 

applicable to startup and shutdown 

events but failed to do so in the 

affirmative defense provision applicable 

to malfunctions. Specifically, the 

Petitioner argued that the EPA’s own 

guidance for affirmative defenses 

recommended that they ‘‘are not 

appropriate where a single source or a 

small group of sources has the potential 

to cause an exceedance of the NAAQS 

or PSD increments.’’ 53 Instead, the 

state’s affirmative defense for 

malfunction events is potentially 

available to any source, if it can 

establish that the excess emissions 

during the event did not result in 

exceedances of ambient air quality 

standards that could be attributed to the 

source.54 The Petitioner objected to this 

as not merely inconsistent with the 

EPA’s 1999 SSM Guidance but also as 

an approach ‘‘that does not have the 

same deterrent effect’’ on sources and 

that would not have the same effects on 

sources to assure that they comply at all 

times in order to avoid violations. As a 

practical matter, the Petitioner also 

argued that including this element to 

the affirmative defense could ‘‘mire 

enforcement proceedings in the 

question of whether or not the NAAQS 

or PSD increments were exceeded as a 

matter of fact.’’ 

2. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to 5 Colo. Code Regs 

§ 1001–2(II.J) because it provides an 

affirmative defense for violations due to 

excess emissions applicable during 

startup and shutdown events, contrary 

to the EPA’s interpretation of the CAA. 

The EPA noted at that time that an 

affirmative defense for excess emissions 

that occur during planned events such 

as startup and shutdown was contrary to 

the EPA’s then current interpretation of 

the CAA to allow such affirmative 

defenses only for events beyond the 

control of the source, i.e., during 

malfunctions. In the February 2013 

proposal notice, the EPA proposed to 

revise its SSM Policy to reflect this 

interpretation of the CAA, and to update 

the recommendations it previously 

made concerning affirmative defense 

provisions applicable to startup and 

shutdown events in the 1999 SSM 

Guidance. For these reasons, the EPA 

previously proposed to find that 5 Colo. 

Code Regs § 1001–2(II.J) is substantially 

inadequate to meet CAA requirements 

and proposed to issue a SIP call with 

respect to this provision. 

The EPA previously proposed to deny 

the Petition with respect to 5 Colo. Code 

Regs § 1001–2(II.E), because this 

provision includes an affirmative 

defense applicable to malfunction 

events that is consistent with the 

requirements of the CAA, as interpreted 

by the EPA in the SSM Policy. In 

particular, the EPA proposed to deny 

the Petition with respect to the claim 

that this provision is inconsistent with 

the CAA because it is available to 

sources or groups of sources that might 

have the potential to cause an 

exceedance of the NAAQS or PSD 

increments. The EPA reasoned that an 

acceptable alternative approach is to 

require the source to establish, as an 

element of the affirmative defense, that 

the excess emissions in question did not 

cause such impacts. The EPA noted in 

the February 2013 proposal notice that 

it was updating its previous guidance 

recommendations to states for SIPs in 

the SSM Policy in order to indicate that 

in lieu of restricting the application of 

an affirmative defense provision only to 

sources without the potential to cause 

NAAQS violations, the state could elect 

to require a source to prove that the 

excess emissions did not cause an 

exceedance of the NAAQS or PSD 

increments as an element of the defense 

instead. Accordingly, the EPA 

previously proposed to find that 5 Colo. 

Code Regs § 1001–2(II.E) is consistent 

with CAA requirements and declined to 

make a finding of substantial 

inadequacy with respect to this 

provision. 

3. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to 

revise the basis for the finding of 

substantial inadequacy and the SIP call 

for the affirmative defense provisions 

applicable to excess emissions that 

occur during startup and shutdown in 5 

Colo. Code Regs § 1001–2(II.J). The EPA 

is also reversing its prior denial of the 

Petition with respect to the affirmative 

defense provision applicable to 

malfunctions in 5 Colo. Code Regs 

§ 1001–2(II.E) and is proposing to find 

that provision substantially inadequate 

and to issue a SIP call for that provision 

as well. The EPA is proposing to revise 

its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets 5 Colo. Code Regs 

§ 1001–2(II.J) and 5 Colo. Code Regs 

§ 1001–2(II.E) to provide affirmative 

defenses that operate to limit the 

jurisdiction of the federal court in an 

enforcement action to assess monetary 

penalties under certain circumstances as 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that these 

provisions interfere with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find 5 Colo. Code Regs 

§ 1001–2(II.J) and 5 Colo. Code Regs 

§ 1001–2(II.E) substantially inadequate 

to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with 

respect to these provisions. 

G. Affected States and Local 

Jurisdictions in EPA Region IX 

1. Arizona 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the Arizona Department of 

Environmental Quality’s (ADEQ) Rule 

R18–2–310, which provide affirmative 

defenses for excess emissions during 

malfunctions (AAC Section R18–2– 

310(B)) and for excess emissions during 

startup or shutdown (AAC Section R18– 

2- 310(C)).55 First, the Petitioner 

asserted that all affirmative defenses for 

excess emissions are inconsistent with 

the CAA and should be removed from 

the Arizona SIP. 

Additionally, quoting from the EPA’s 

recommendation in the SSM Policy that 

such affirmative defenses should not be 

available to ‘‘a single source or small 

group of sources [that] has the potential 

to cause an exceedance of the NAAQS 

or PSD increments,’’ the Petitioner 

contended that ‘‘sources with the power 

to cause an exceedance should be 

strictly controlled at all times, not just 

when they actually cause an 


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56Petition at 20. 

57Petition at 23. 

58Petition at 20–22. 

59 Id. 

exceedance.’’ 56 Although 

acknowledging that R18–2–310 contains 

some limitations to address this issue, 

the Petitioner argued that the limitations 

in the SIP provision do not reduce the 

incentive for such sources to emit at 

levels close to those that would violate 

a NAAQS or PSD increment in the way 

that entirely disallowing affirmative 

defenses for these types of sources 

would. Accordingly, the Petitioner 

requested that the EPA require Arizona 

either to remove R18–2–310(B) and (C) 

from the SIP entirely or to revise the 

rule so that affirmative defenses ‘‘are not 

available to a single source or one of a 

small group of sources who have the 

potential to cause an exceedance of the 

NAAQS.’’ 

Second, the Petitioner asserted that 

the provision applicable to startup and 

shutdown periods (R18–2–310(C)) does 

not include an explicit requirement for 

a source seeking to establish an 

affirmative defense to prove that ‘‘the 

excess emissions were not part of a 

recurring pattern indicative of 

inadequate design, operation, or 

maintenance.’’ The Petitioner provided 

a table specifically comparing the 

provisions in R18–2–310(C) against the 

EPA’s recommended criteria for 

affirmative defense provisions in the 

1999 SSM Guidance to show that R18– 

2–310(C) does not contain a specific 

provision to address this recommended 

criterion and stated that the SIP 

provision should be revised to require 

such a demonstration. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to deny the Petition 

with respect to the arguments 

concerning ADEQ’s affirmative defense 

provisions for malfunctions in R18–2– 

310(B) because this provision is 

consistent with the requirements of the 

CAA, as interpreted by the EPA in the 

SSM Policy. In particular, the EPA 

proposed to deny the Petition with 

respect to the claim that this provision 

is inconsistent with the CAA because it 

is available to sources or groups of 

sources that might have the potential to 

cause an exceedance of the NAAQS or 

PSD increments. The EPA reasoned that 

an acceptable alternative approach is to 

require the source to establish, as an 

element of the affirmative defense, that 

the excess emissions in question did not 

cause such impacts. The EPA noted in 

the February 2013 proposal notice that 

it was updating its previous guidance 

recommendations to states for SIPs in 

the SSM Policy in order to indicate that 

in lieu of restricting the application of 

an affirmative defense provision only to 

sources without the potential to cause 

NAAQS violations, the state could elect 

to require a source to prove that the 

excess emissions did not cause a 

violation of the NAAQS as an element 

of the defense instead. Accordingly, the 

EPA previously proposed to find that 

R18–2–310(B) is consistent with CAA 

requirements and declined to make a 

finding of substantial inadequacy with 

respect to this provision. 

With respect to the arguments 

concerning ADEQ’s affirmative defense 

provisions for startup and shutdown 

periods in R18–2- 310(C), the EPA 

proposed to grant the Petition because it 

provides an affirmative defense for 

violations due to excess emissions 

applicable during startup and shutdown 

events, contrary to the EPA’s current 

interpretation of the CAA. The EPA 

noted at that time that an affirmative 

defense for excess emissions that occur 

during planned events such as startup 

and shutdown was contrary to the EPA’s 

then current interpretation of the CAA 

to allow such affirmative defenses only 

for events beyond the control of the 

source, i.e., during malfunctions. In the 

February 2013 proposal notice, the EPA 

proposed to revise its SSM Policy to 

reflect this interpretation of the CAA, 

and to update the recommendations it 

previously made concerning affirmative 

defense provisions applicable to startup 

and shutdown events in the 1999 SSM 

Guidance. For these reasons, the EPA 

previously proposed to find that R18–2– 

310(C) is substantially inadequate to 

meet CAA requirements and proposed 

to issue a SIP call with respect to this 

provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is reversing its 

prior proposed denial of the Petition 

with respect to the affirmative defense 

provision applicable to malfunctions in 

R18–2–310(B) and is proposing to find 

that provision substantially inadequate 

and to issue a SIP call for that provision. 

The EPA is also revising the prior basis 

for the finding of substantial inadequacy 

and the SIP call for the affirmative 

defense provisions applicable to excess 

emissions that occur during startup and 

shutdown in R18–2–310(C). The EPA is 

proposing to revise its interpretation of 

the CAA with respect to affirmative 

defense provisions in SIPs. Previously 

the EPA assessed whether such 

provisions met certain requirements, 

such as being limited to monetary 

penalties rather than injunctive relief 

and containing sufficiently robust 

criteria to assure that the defense 

applied only in appropriately narrow 

circumstances. Now, the Agency must 

evaluate such provisions to determine 

whether they are constructed in a way 

that would purport to preclude federal 

court jurisdiction under section 113 to 

assess civil penalties or other forms of 

relief for violations of SIP emission 

limits, to prevent courts from 

considering the statutory factors for the 

assessment of civil penalties under 

section 113 or to interfere with the 

rights of litigants to pursue enforcement 

consistent with their rights under the 

citizen suit provision of section 304. 

The EPA interprets R18–2–310(B) and 

R18–2–310(C) to provide affirmative 

defenses that operate to limit the 

jurisdiction of the federal court in an 

enforcement action to assess monetary 

penalties under certain circumstances as 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that these 

provisions interfere with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find R18–2–310(B) and 

R18–2–310(C) substantially inadequate 

to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with 

respect to these provisions. 

2. Arizona: Maricopa County 

a. Petitioner’s Analysis 

The Petitioner objected to two 

provisions in the Maricopa County Air 

Pollution Control Regulations that 

provide affirmative defenses for excess 

emissions during malfunctions 

(Maricopa County Air Pollution Control 

Regulation 3, Rule 140, § 401) and for 

excess emissions during startup or 

shutdown (Maricopa County Air 

Pollution Control Regulation 3, Rule 

140, § 402).57 These provisions in 

Maricopa County Air Quality 

Department (MCAQD) Rule 140 are 

similar to the affirmative defense 

provisions in ADEQ R18–2–310.58

First, the Petitioner asserted that the 

affirmative defense provisions in Rule 

140 are problematic for the same 

reasons identified in the Petition with 

respect to ADEQ R18–2–310. 

Specifically, the Petitioner argued that 

affirmative defenses should not be 

allowed in any SIP and, alternatively, 

that to the extent affirmative defenses 

are permissible, the provisions in Rule 

140 addressing exceedances of the 

ambient standards are ‘‘inappropriately 

permissive and do not comply with EPA 

guidance.’’ 59 Accordingly, the 


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Petitioner requested that the EPA 

require Arizona and/or MCAQD either 

to remove these provisions from the SIP 

entirely or to revise them so that they 

are not available to a single source or 

small group of sources that has the 

potential to cause a NAAQS 

exceedance. Second, the Petitioner 

asserted that the provisions for startup 

and shutdown in Rule 140 do not 

include an explicit requirement for a 

source seeking to establish an 

affirmative defense to prove that ‘‘the 

excess emissions in question were not 

part of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance.’’ The Petitioner argued 

that Rule 140 should be revised to 

require such a demonstration. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to deny the Petition 

with respect to the arguments 

concerning MCAQD’s affirmative 

defense provisions for malfunctions in 

Regulation 3, Rule 140, § 401 because 

this provision is consistent with the 

requirements of the CAA, as interpreted 

by the EPA in the SSM Policy. In 

particular, the EPA proposed to deny 

the Petition with respect to the claim 

that this provision is inconsistent with 

the CAA because it is available to 

sources or groups of sources that might 

have the potential to cause an 

exceedance of the NAAQS or PSD 

increments. The EPA reasoned that an 

acceptable alternative approach is to 

require the source to establish, as an 

element of the affirmative defense, that 

the excess emissions in question did not 

cause such impacts. The EPA noted in 

the February 2013 proposal notice that 

it was updating its previous guidance 

recommendations to states for SIPs in 

the SSM Policy in order to indicate that 

in lieu of restricting the application of 

an affirmative defense provision only to 

sources without the potential to cause 

NAAQS violations, the state could elect 

to require a source to prove that the 

excess emissions did not cause a 

violation of the NAAQS as an element 

of the defense instead. Accordingly, the 

EPA previously proposed to find that 

Regulation 3, Rule 140, § 401 is 

consistent with CAA requirements and 

declined to make a finding of 

substantial inadequacy with respect to 

this provision. 

With respect to the arguments 

concerning ADEQ’s affirmative defense 

provisions for startup and shutdown 

periods in Regulation 3, Rule 140, § 402, 

the EPA previously proposed to grant 

the Petition because it provides an 

affirmative defense for violations due to 

excess emissions applicable during 

startup and shutdown events, contrary 

to the EPA’s interpretation of the CAA. 

The EPA noted at that time that an 

affirmative defense for excess emissions 

that occur during planned events such 

as startup and shutdown was contrary to 

the EPA’s then current interpretation of 

the CAA to allow such affirmative 

defenses only for events beyond the 

control of the source, i.e., during 

malfunctions. In the February 2013 

proposal notice, the EPA proposed to 

revise its SSM Policy to reflect this 

interpretation of the CAA, and to update 

the recommendations it previously 

made concerning affirmative defense 

provisions applicable to startup and 

shutdown events in the 1999 SSM 

Guidance. For these reasons, the EPA 

previously proposed to find that 

Maricopa County Air Pollution Control 

Regulation 3, Rule 140, § 402 is 

substantially inadequate to meet CAA 

requirements and proposed to issue a 

SIP call with respect to this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is reversing its 

prior proposed denial of the Petition 

with respect to the affirmative defense 

provision applicable to malfunctions in 

Regulation 3, Rule 140, § 401 and is 

proposing to find that provision 

substantially inadequate and to issue a 

SIP call for that provision. The EPA is 

also revising the prior basis for the 

finding of substantial inadequacy and 

the SIP call for the affirmative defense 

provisions applicable to excess 

emissions that occur during startup and 

shutdown in Regulation 3, Rule 140, 

§ 402. The EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets Regulation 3, Rule 

140, § 401 and Regulation 3, Rule 140, 

§ 402 to provide affirmative defenses 

that operate to limit the jurisdiction of 

the federal court in an enforcement 

action to assess monetary penalties 

under certain circumstances as 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that these 

provisions interfere with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Regulation 3, Rule 

140, § 401 and Regulation 3, Rule 140, 

§ 402 substantially inadequate to meet 

CAA requirements and the EPA is thus 

proposing to issue a SIP call with 

respect to these provisions. 

3. California: Eastern Kern Air Pollution 

Control District 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified an affirmative defense 

provision in the SIP for the state of 

California applicable in the Eastern 

Kern Air Pollution Control District 

(APCD). The affirmative defense is 

included in Kern County ‘‘Rule 111 

Equipment Breakdown.’’ This SIP 

provision provides an affirmative 

defense available to sources for excess 

emissions that occur during a 

breakdown condition (i.e., malfunction). 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 


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60The EPA is proposing in this SNPR to make a 

finding of substantial inadequacy and to issue a SIP 

call for Kern County Rule 111 Equipment 

Breakdown in the California SIP as it applies in 

each the Eastern Kern APCD and the San Joaquin 

Valley APCD. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Kern County Rule 111 includes 

the elements of an affirmative defense to 

be asserted by sources in the event of 

violations during breakdown 

conditions. The provision defines 

‘‘breakdown conditions’’ as any 

unforeseeable failure or malfunction of 

air pollution control equipment or 

monitoring equipment. If the source is 

able to establish that it met each of the 

specified criteria to an ‘‘air pollution 

control officer’’ (i.e., an official of the 

state or the Eastern Kern APCD), then 

the provision purports to bar any 

enforcement action and thus any form of 

remedy for the violations that occur 

during the malfunction. Accordingly, 

the EPA believes that the affirmative 

defense provision created by Kern 

County Rule 111 is inconsistent with 

the fundamental enforcement structure 

of the CAA and the EPA thus believes 

that the provision is not consistent with 

CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

Kern County Rule 111 Equipment 

Breakdown in the California SIP 

applicable in the Eastern Kern APCD.60

The EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

The EPA notes that Kern County Rule 

111 did not meet the Agency’s prior 

interpretation of the CAA with regard to 

affirmative defense provisions in SIPs. 

Regardless of that fact, however, the 

Agency must now evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets Kern County 

‘‘Rule 111 Equipment Breakdown’’ to 

provide an affirmative defense that 

operates to limit the jurisdiction of the 

federal court in an enforcement action 

and to limit the authority of the court to 

impose monetary penalties as 

contemplated in CAA sections 113 and 

304. The provision provides that if a 

violating source meets certain criteria 

set forth in Rule 111, then ‘‘no 

enforcement action may be taken.’’ By 

proscribing any enforcement by any 

party if the source meets certain criteria, 

Rule 111 creates an affirmative defense 

that would preclude enforcement for 

excess emissions that would otherwise 

constitute a violation of the applicable 

SIP emission limitations. Thus, the EPA 

believes that this provision interferes 

with the intended enforcement structure 

of the CAA, through which parties may 

seek to bring enforcement actions for 

violations of SIP emission limits and 

courts may exercise their jurisdiction to 

determine what, if any, relief is 

appropriate. 

For these reasons, the EPA is 

proposing to find Kern County ‘‘Rule 

111 Equipment Breakdown’’ 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

proposing to issue a SIP call with 

respect to this provision. 

4. California: Imperial County Air 

Pollution Control District 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified an affirmative defense 

provision in the SIP for the state of 

California applicable in the Imperial 

Valley APCD. The affirmative defense is 

included in Imperial County ‘‘Rule 111 

Equipment Breakdown.’’ This SIP 

provision provides an affirmative 

defense available to sources for excess 

emissions that occur during a 

breakdown condition (i.e., malfunction). 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Imperial County Rule 111 

includes the elements of an affirmative 

defense to be asserted by sources in the 

event of violations during breakdown 

conditions. The provision defines 

‘‘breakdown conditions’’ as any 

unforeseeable failure or malfunction of 

air pollution control equipment or 

monitoring equipment. If the source is 

able to establish that it met each of the 

specified criteria to an ‘‘air pollution 

control officer’’ (i.e., an official of the 

state or the Imperial Valley APCD), then 

the provision purports to bar any 

enforcement action and thus any form of 

remedy for the violations that occur 

during the malfunction. Accordingly, 

the EPA believes that the affirmative 

defense provision created by Imperial 

County Rule 111 is inconsistent with 

the fundamental enforcement structure 

of the CAA and the EPA thus believes 

that the provision is not consistent with 

CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

Imperial County ‘‘Rule 111 Equipment 

Breakdown’’ in the California SIP 

applicable in the Imperial Valley APCD. 

The EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

The EPA notes that Imperial County 

Rule 111 did not meet the Agency’s 

prior interpretation of the CAA with 

regard to affirmative defense provisions 

in SIPs. Regardless of that fact, however, 

the Agency must now evaluate such 


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61The EPA notes that comparable provisions 

appear in the California SIP for the San Joaquin 

Valley APCD in Merced County (in ‘‘Rule 109 

Equipment Breakdown’’) and in San Joaquin 

County (in ‘‘Rule 110 Equipment Breakdown’’). 

However, the EPA interprets these provisions to be 

enforcement discretion provisions, applicable only 

to the state or air district personnel. In each of these 

counties, the applicable rules provide that if the 

source meets certain criteria, then ‘‘the Air 

Pollution Control Officer may elect to take no 

enforcement action.’’ The EPA believes that these 

provisions unequivocally apply only to the exercise 

of enforcement discretion by the state or air district 

personnel and are not operative in the event of 

enforcement by the EPA or others under the 

authority of the citizen suit provision of CAA 

section 304. For this reason, the EPA is not 

proposing to make a finding of substantial 

inadequacy and a SIP call for these comparable 

provisions in Merced County Rule 109 and San 

Joaquin County Rule 110. If the state of California 

disagrees with this interpretation, the EPA 

anticipates that the state will inform the Agency of 

that fact though comment on this SNPR. 

62The EPA is proposing in this SNPR to make a 

finding of substantial inadequacy and to issue a SIP 

call for Kern County Rule 111 Equipment 

Breakdown in the California SIP as it applies in 

each the Eastern Kern APCD and the San Joaquin 

Valley APCD. 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets Imperial County 

‘‘Rule 111 Equipment Breakdown’’ to 

provide an affirmative defense that 

operates to limit the jurisdiction of the 

federal court in an enforcement action 

and to limit the authority of the court to 

impose monetary penalties as 

contemplated in CAA sections 113 and 

304. The provision provides that if a 

violating source meets certain criteria 

set forth in Rule 111, then ‘‘no 

enforcement action may be taken.’’ By 

proscribing any enforcement by any 

party if the source meets certain criteria, 

Rule 111 creates an affirmative defense 

that would preclude enforcement for 

excess emissions that would otherwise 

constitute a violation of the applicable 

SIP emission limitations. Thus, the EPA 

believes that this provision interferes 

with the intended enforcement structure 

of the CAA, through which parties may 

seek to bring enforcement actions for 

violations of SIP emission limits and 

courts may exercise their jurisdiction to 

determine what, if any, relief is 

appropriate. 

For these reasons, the EPA is 

proposing to find Imperial County ‘‘Rule 

111 Equipment Breakdown’’ 

substantially inadequate to meet CAA 

requirements and the EPA is thus 

proposing to issue a SIP call with 

respect to this provision. 

5. California: San Joaquin Valley Air 

Pollution Control District 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified affirmative defense 

provisions in the SIP for the state of 

California applicable in the San Joaquin 

Valley APCD. The affirmative defenses 

are included in: (i) Fresno County ‘‘Rule 

110 Equipment Breakdown’’; (ii) Kern 

County ‘‘Rule 111 Equipment 

Breakdown’’; (iii) Kings County ‘‘Rule 

111 Equipment Breakdown’’; (iv) 

Madera County ‘‘Rule 113 Equipment 

Breakdown’’; (v) Stanislaus County 

‘‘Rule 110 Equipment Breakdown’’; and 

(vi) Tulare County ‘‘Rule 111 Equipment 

Breakdown.’’ 61 Each of these SIP 

provisions provides an affirmative 

defense available to sources for excess 

emissions that occur during a 

breakdown condition (i.e., malfunction). 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Fresno County Rule 110, Kern 

County Rule 111, Kings County Rule 

111, Madera County Rule 113, 

Stanislaus County Rule 110 and Tulare 

County Rule 111 include the elements 

of an affirmative defense to be asserted 

by sources in the event of violations 

during breakdown conditions. Each of 

these provisions defines ‘‘breakdown 

conditions’’ in comparable ways as any 

unforeseeable failure or malfunction of 

air pollution control equipment or 

monitoring equipment. If the source is 

able to establish that it met each of the 

specified criteria to a ‘‘Control Officer’’ 

(i.e., an official of the state or the San 

Joaquin Valley APCD), then the 

provision purports to bar any 

enforcement action and thus any form of 

remedy for the violations that occur 

during the malfunction. Accordingly, 

the EPA believes that each of the 

affirmative defense provisions created 

by Fresno County Rule 110, Kern 

County Rule 111, Kings County Rule 

111, Madera County Rule 113, 

Stanislaus County Rule 110 and Tulare 

County Rule 111 is inconsistent with 

the fundamental enforcement structure 

of the CAA and the EPA thus believes 

that these provisions are not consistent 

with CAA requirements for SIP 

provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

six provisions in the California SIP 

applicable in the San Joaquin Valley 

APCD: (i) Fresno County ‘‘Rule 110 

Equipment Breakdown’’; (ii) Kern 

County ‘‘Rule 111 Equipment 

Breakdown’’; (iii) Kings County ‘‘Rule 

111 Equipment Breakdown’’; (iv) 

Madera County ‘‘Rule 113 Equipment 

Breakdown’’; (v) Stanislaus County 

‘‘Rule 110 Equipment Breakdown’’; and 

(vi) Tulare County ‘‘Rule 111 Equipment 

Breakdown.’’ 62 The EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

The EPA notes that Fresno County Rule 

110, Kern County Rule 111, Kings 

County Rule 111, Madera County Rule 

113, Stanislaus County Rule 110 and 

Tulare County Rule 111 did not meet 

the Agency’s prior interpretation of the 

CAA with regard to affirmative defense 

provisions in SIPs. Regardless of that 

fact, however, the Agency must now 

evaluate such provisions to determine 

whether they are constructed in a way 

that would purport to preclude federal 

court jurisdiction under section 113 to 


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63Petition at 18–20. 

assess civil penalties or other forms of 

relief for violations of SIP emission 

limits, to prevent courts from 

considering the statutory factors for the 

assessment of civil penalties under 

section 113 or to interfere with the 

rights of litigants to pursue enforcement 

consistent with their rights under the 

citizen suit provision of section 304. 

The EPA interprets Fresno County 

Rule 110, Kern County Rule 111, Kings 

County Rule 111, Madera County Rule 

113, Stanislaus County Rule 110 and 

Tulare County Rule 111 to provide 

affirmative defenses that operate to limit 

the jurisdiction of the federal court in an 

enforcement action and to limit the 

authority of the court to impose 

monetary penalties as contemplated in 

CAA sections 113 and 304. These 

provisions provide that if a violating 

source meets certain criteria set forth in 

each of the Rules, then ‘‘no enforcement 

action may be taken.’’ By proscribing 

any enforcement by any party if the 

source meets certain criteria, each of 

these provisions creates an affirmative 

defense that would preclude 

enforcement for excess emissions that 

would otherwise constitute a violation 

of the applicable SIP emission 

limitations. Thus, the EPA believes that 

these provisions interfere with the 

intended enforcement structure of the 

CAA, through which parties may seek to 

bring enforcement actions for violations 

of SIP emission limits and courts may 

exercise their jurisdiction to determine 

what, if any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Fresno County ‘‘Rule 

110 Equipment Breakdown,’’ Kern 

County ‘‘Rule 111 Equipment 

Breakdown,’’ Kings County ‘‘Rule 111 

Equipment Breakdown,’’ Madera 

County ‘‘Rule 113 Equipment 

Breakdown,’’ Stanislaus County ‘‘Rule 

110 Equipment Breakdown’’ and Tulare 

County ‘‘Rule 111 Equipment 

Breakdown’’ substantially inadequate to 

meet CAA requirements and the EPA is 

thus proposing to issue a SIP call with 

respect to these provisions. 

H. Affected States and Local 

Jurisdictions in EPA Region X 

1. Alaska 

a. Petitioner’s Analysis 

The Petitioner objected to a provision 

in the Alaska SIP that provides an 

excuse for ‘‘unavoidable’’ excess 

emissions that occur during SSM 

events, including startup, shutdown, 

scheduled maintenance and ‘‘upsets’’ 

(Alaska Admin. Code tit. 18 § 50.240).63

The provision provides: ‘‘Excess 

emissions determined to be unavoidable 

under this section will be excused and 

are not subject to penalty. This section 

does not limit the department’s power 

to enjoin the emission or require 

corrective action.’’ The Petitioner 

argued that this provision excuses 

excess emissions in violation of the 

CAA and the EPA’s SSM Policy, which 

require all such emissions to be treated 

as violations of the applicable SIP 

emission limitations. The Petitioner 

further argued that it is unclear whether 

the provision could be interpreted to bar 

enforcement actions brought by the EPA 

or citizens, because it is drafted as if the 

state were the sole enforcement 

authority. Finally, the Petitioner pointed 

out, the provision is worded as if it were 

an affirmative defense, but it uses 

criteria for enforcement discretion. 

Finally, the Petitioner pointed out, the 

provision is worded as if it were an 

affirmative defense, but it uses criteria 

more relevant for enforcement 

discretion. In other words, the Petitioner 

argued that the provision is inconsistent 

with the EPA’s recommendations for 

affirmative defense provisions in SIPs in 

the 1999 SSM Guidance. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to Alaska Admin. Code tit. 

18 § 50.240. To the extent that this 

provision is intended to be an 

affirmative defense, the EPA believed it 

to be deficient to meet the requirements 

of the CAA for such provisions. The 

provision applies to excess emissions 

during startup, shutdown and 

maintenance events, contrary to the 

EPA’s then current interpretation of the 

CAA to allow such affirmative defenses 

only for malfunctions. The EPA noted at 

that time that an affirmative defense for 

excess emissions that occur during 

planned events such as startup and 

shutdown was contrary to the EPA’s 

then current interpretation of the CAA 

to allow such affirmative defenses only 

for events beyond the control of the 

source, i.e., during malfunctions. In the 

February 2013 proposal notice, the EPA 

proposed to revise its SSM Policy to 

reflect this interpretation of the CAA, 

and to update the recommendations it 

previously made concerning affirmative 

defense provisions applicable to startup 

and shutdown events in the 1999 SSM 

Guidance. Additionally, the EPA 

previously reasoned that the section of 

Alaska Admin. Code tit. 18 § 50.240 

applying to ‘‘upsets’’ is inadequate 

because the criteria referenced are not 

sufficiently similar to those 

recommended in the EPA’s SSM Policy 

for affirmative defense provisions 

applicable to malfunctions. Thus, the 

EPA previously considered Alaska 

Admin. Code tit. 18 § 50.240 to be 

inconsistent with the fundamental 

requirements of the CAA and thus 

proposed to find the provision 

substantially inadequate to meet CAA 

requirements and to issue a SIP call 

with respect to the provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is revising the 

prior basis for the finding of substantial 

inadequacy and the SIP call for the 

affirmative defense provisions 

applicable to excess emissions that 

occur during startup, shutdown and 

upsets in Alaska Admin. Code tit. 18 

§ 50.240. The EPA is proposing to revise 

its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets Alaska Admin. 

Code tit. 18 § 50.240 to provide 

affirmative defenses that operate to limit 

the jurisdiction of the federal court in an 

enforcement action to assess monetary 

penalties or impose injunctive relief 

under certain circumstances as 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that this 

provision interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Alaska Admin. Code 

tit. 18 § 50.240 substantially inadequate 

to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with 

respect to this provision. The EPA notes 

that in this SNPR it is only addressing 

this provision with respect to its 

deficiency as an affirmative defense 

provision and is not revising its 


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64Petition at 71–72. 

65The EPA notes that its SSM Policy guidance 

has always stated that affirmative defense 

provisions in SIPs are not appropriate for excess 

emissions that occur during maintenance activities. 

The 1999 SSM Guidance only made 

recommendations with respect to affirmative 

defense provisions applicable to malfunctions and 

to startup and shutdown. The 1983 SSM Guidance 

recommended that ‘‘scheduled maintenance is a 

predictable event which can be scheduled at the 

discretion of the operator’’ and therefore 

recommended even against the exercise of 

enforcement discretion for violations during 

maintenance except under limited circumstances. 

See 1983 SSM Guidance at Attachment, Page 3. 

66This is the state agency that reviews and 

authorizes the construction and operation of major 

energy facilities in Washington for all media in lieu 

of any other individual state or local agency 

permits. Thus these affirmative defense provisions 

can become embodied in the authorizations for 

such sources. 

February 2013 proposal notice with 

respect to the other separate bases for 

the finding of substantial inadequacy of 

this provision. 

2. Washington 

a. Petitioner’s Analysis 

The Petitioner objected to a provision 

in the Washington SIP that provides an 

excuse for ‘‘unavoidable’’ excess 

emissions that occur during certain SSM 

events, including startup, shutdown, 

scheduled maintenance and ‘‘upsets’’ 

(Wash. Admin. Code § 173–400–107).64

The provision provides that ‘‘[e]xcess 

emissions determined to be unavoidable 

under the procedures and criteria under 

this section shall be excused and are not 

subject to penalty.’’ The Petitioner 

argued that this provision excuses 

excess emissions, in violation of the 

CAA and the EPA’s SSM Policy, which 

require all such emissions to be treated 

as violations of the applicable SIP 

emission limitations. The Petitioner 

further argued that it is unclear whether 

the provision could be interpreted to bar 

enforcement actions brought by the EPA 

or citizens, because it is drafted as if the 

state were the sole enforcement 

authority. Finally, the Petitioner pointed 

out, the provision is worded as if it were 

an affirmative defense, but it uses 

criteria more relevant for enforcement 

discretion. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, 

the EPA proposed to grant the Petition 

with respect to Wash. Admin. Code 

§ 173–400–107. The provision applies to 

startup, shutdown and maintenance 

events, contrary to the EPA’s then 

current interpretation of the CAA to 

allow such affirmative defenses only for 

malfunctions. The EPA noted at that 

time that an affirmative defense for 

excess emissions that occur during 

planned events such as startup, 

shutdown and maintenance was 

contrary to the EPA’s then current 

interpretation of the CAA to allow such 

affirmative defenses only for events 

beyond the control of the source, i.e., 

during malfunctions. In the February 

2013 proposal notice, the EPA proposed 

to revise its SSM Policy to reflect this 

interpretation of the CAA, and to update 

the recommendations it previously 

made concerning affirmative defense 

provisions applicable to startup and 

shutdown events in the 1999 SSM 

Guidance.65 Furthermore, the EPA 

previously reasoned that the section of 

Wash. Admin. Code § 173–400–107 

applying to ‘‘upsets’’ is inadequate 

because the criteria referenced are not 

sufficiently similar to those 

recommended in the EPA’s SSM Policy 

for affirmative defense provisions 

applicable to malfunctions. Moreover, 

the provision appears to bar the EPA 

and citizens from seeking penalties and 

injunctive relief. Thus, the EPA 

previously considered Wash. Admin. 

Code § 173–400–107 to be inconsistent 

with the fundamental requirements of 

the CAA and the EPA thus proposed to 

find the provision substantially 

inadequate to meet CAA requirements 

and proposed to issue a SIP call with 

respect to the provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is revising the 

prior basis for the proposed finding of 

substantial inadequacy and the 

proposed SIP call for the affirmative 

defense provisions applicable to excess 

emissions that occur during startup, 

shutdown, maintenance and upsets in 

Wash. Admin. Code § 173–400–107. The 

EPA is proposing to revise its 

interpretation of the CAA with respect 

to affirmative defense provisions in 

SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

Now, the Agency must evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets Wash. Admin. 

Code § 173–400–107 to provide 

affirmative defenses that operate to limit 

the jurisdiction of the federal court in an 

enforcement action to assess monetary 

penalties or impose injunctive relief 

under certain circumstances as 

contemplated in CAA sections 113 and 

304. Thus, the EPA believes that this 

provision interferes with the intended 

enforcement structure of the CAA, 

through which parties may seek to bring 

enforcement actions for violations of SIP 

emission limits and courts may exercise 

their jurisdiction to determine what, if 

any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Wash. Admin. Code 

§ 173–400–107 substantially inadequate 

to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with 

respect to this provision. The EPA notes 

that in this SNPR it is only addressing 

this provision with respect to its 

deficiency as an affirmative defense 

provision and is not revising its 

February 2013 proposal notice with 

respect to the other separate bases for 

the finding of substantial inadequacy of 

this provision. 

3. Washington: Energy Facility Site 

Evaluation Council 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified affirmative defense 

provisions in the SIP for the state of 

Washington that relate to the Energy 

Facility Site Evaluation Council 

(EFSEC).66 The EFSEC portion of the 

SIP includes Wash. Admin. Code § 463– 

39–005, which adopts by reference 

Wash. Admin. Code § 173–400–107, 

thereby incorporating the affirmative 

defenses applicable to startup, 

shutdown, scheduled maintenance and 

‘‘upsets’’ for which, as explained earlier 

in this SNPR, the EPA has proposed to 

find Wash. Admin. Code § 173–400–107 

substantially inadequate to meet CAA 

requirements. 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 


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67The EPA notes that the SWCAA was formerly 

named, and in some places in the SIP still appears, 

as the ‘‘Southwest Air Pollution Control Authority’’ 

or ‘‘SWAPCA.’’ The EPA anticipates that the name 

will be updated in the SIP in due course as the state 

revises the SIP. 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Wash. Admin. Code § 463–39– 

005 incorporates by reference the 

elements of an affirmative defense to be 

asserted by sources in the event of 

violations during startup, shutdown, 

scheduled maintenance and upsets. The 

provision provides criteria for each type 

of event. If the source is able to establish 

that it met each of the specified criteria, 

then the provision purports to bar any 

enforcement action and thus any form of 

remedy for the violations that occur 

during such events. The provision 

explicitly states that if the criteria are 

met, then the violations ‘‘shall be 

excused and not subject to penalty.’’ 

Accordingly, the EPA believes that the 

affirmative defenses created by Wash. 

Admin. Code § 463–39–005 through its 

incorporation by reference of Wash. 

Admin. Code § 173–400–107 are 

inconsistent with the fundamental 

enforcement structure of the CAA and 

the EPA thus believes that the Wash. 

Admin. Code § 463–39–005 provision is 

not consistent with CAA requirements 

for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

Wash. Admin. Code § 463–39–005’s 

incorporation by reference of Wash. 

Admin. Code § 173–400–107 in the 

Washington SIP with respect to the 

EFSEC. The EPA is proposing to revise 

its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. Previously the EPA assessed 

whether such provisions met certain 

requirements, such as being limited to 

monetary penalties rather than 

injunctive relief and containing 

sufficiently robust criteria to assure that 

the defense applied only in 

appropriately narrow circumstances. 

The EPA notes that the affirmative 

defenses created in Wash. Admin. Code 

§ 463–39–005 through its incorporation 

by reference of Wash. Admin. Code 

§ 173–400–107 did not meet the 

Agency’s prior interpretation of the 

CAA with regard to affirmative defense 

provisions in SIPs. Regardless of that 

fact, however, the Agency must now 

evaluate such provisions to determine 

whether they are constructed in a way 

that would purport to preclude federal 

court jurisdiction under section 113 to 

assess civil penalties or other forms of 

relief for violations of SIP emission 

limits, to prevent courts from 

considering the statutory factors for the 

assessment of civil penalties under 

section 113 or to interfere with the 

rights of litigants to pursue enforcement 

consistent with their rights under the 

citizen suit provision of section 304. 

The EPA interprets Wash. Admin. 

Code § 463–39–005’s incorporation by 

reference of Wash. Admin. Code § 173– 

400–107 to provide affirmative defenses 

that would operate to limit the 

jurisdiction of the federal court in an 

enforcement action and to limit the 

authority of the court to impose 

monetary penalties as contemplated in 

CAA sections 113 and 304. The 

provision provides that if a violating 

source meets certain criteria 

incorporated by reference from Wash. 

Admin. Code § 173–400–107, then the 

excess emissions are ‘‘excused and not 

subject to penalty.’’ By proscribing any 

enforcement by any party if the source 

meets certain criteria, Wash. Admin. 

Code § 463–39–005 creates affirmative 

defenses that would preclude 

enforcement for excess emissions that 

would otherwise constitute a violation 

of the applicable SIP emission 

limitations. Thus, the EPA believes that 

this provision interferes with the 

intended enforcement structure of the 

CAA, through which parties may seek to 

bring enforcement actions for violations 

of SIP emission limits and courts may 

exercise their jurisdiction to determine 

what, if any, relief is appropriate. 

For these reasons, the EPA is 

proposing to find Wash. Admin. Code 

§ 463–39–005’s incorporation by 

reference of Wash. Admin. Code § 173– 

400–107 substantially inadequate to 

meet CAA requirements and the EPA is 

thus proposing to issue a SIP call with 

respect to this provision. 

4. Washington: Southwest Clean Air 

Agency 

a. The EPA’s Evaluation 

In addition to evaluating specific 

affirmative defense provisions identified 

by the Petitioner, the EPA is also 

evaluating other affirmative defense 

provisions that may be affected by the 

Agency’s revision of its interpretation of 

CAA requirements for such provisions 

in SIPs. As part of its review, the EPA 

has identified affirmative defense 

provisions in the SIP for the state of 

Washington applicable in the portion of 

the state regulated by the Southwest 

Clean Air Agency (SWCAA).67 The 

affirmative defenses are included in the 

SIP in SWAPCA ‘‘400–107 Excess 

Emissions.’’ This SIP provision provides 

an affirmative defense available to 

sources for excess emissions that occur 

during startup and shutdown, 

maintenance and upsets (i.e., 

malfunctions). It is identical to Wash. 

Admin. Code § 173–400–107 in all 

respects except that SWAPCA 400– 

107(3) contains a more stringent 

requirement for the reporting of excess 

emissions. 

In light of the court’s decision in 

NRDC v. EPA, the EPA is proposing to 

revise its SSM Policy concerning the 

issue of affirmative defense provisions. 

In particular, the EPA is proposing to 

reverse its prior recommendations to 

states on this issue provided in the 1999 

SSM Guidance. In that guidance, the 

EPA had interpreted the CAA to permit 

states to elect to create narrowly drawn 

affirmative defense provisions in SIPs, 

both for malfunction events and for 

startup and shutdown events, so long as 

the provisions were consistent with the 

criteria recommended by the Agency. In 

the February 2013 proposal notice, the 

EPA had already proposed to revise this 

interpretation of the CAA to permit 

states to develop affirmative defense 

provisions only for malfunction events 

and not for startup and shutdown 

events. The decision of the court in 

NRDC v. EPA indicates that the EPA 

needs to revise the SSM Policy yet 

further. 

As discussed in sections IV and V of 

this SNPR, the EPA is proposing to 

revise its interpretation of the CAA with 

respect to affirmative defense provisions 

in SIPs. SWAPCA 400–107 Excess 

Emissions includes the elements of an 

affirmative defense to be asserted by 

sources in the event of violations during 

startup and shutdown, maintenance and 

upsets. The provision provides criteria 

for each type of event. If the source is 

able to establish that it met each of the 

specified criteria to ‘‘the Authority or 

the decision-making entity’’ (i.e., 

officials of the state or the SWCAA), 

then the provision purports to bar any 

enforcement action and thus any form of 


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68Small entities include small businesses, small 

organizations and small governmental jurisdictions. 

For purposes of assessing the impacts of this notice 

on small entities, small entity is defined as: (1) A 

small business that is a small industrial entity as 

defined in the U.S. Small Business Administration 

(SBA) size standards (see 13 CFR 121.201); (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, school district 

or special district with a population of less than 

50,000; or (3) a small organization that is any notfor-profit enterprise that is independently owned 

and operated and is not dominant in its field. 

remedy for the violations that occur 

during such events. The provision 

explicitly states that if the criteria are 

met, then the violations ‘‘shall be 

excused and not subject to penalty.’’ 

Accordingly, the EPA believes that the 

affirmative defenses created by 

SWAPCA 400–107 are inconsistent with 

the fundamental enforcement structure 

of the CAA and the EPA thus believes 

that the provision is not consistent with 

CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to 

make a finding of substantial 

inadequacy and to issue a SIP call for 

SWAPCA ‘‘400–107 Excess Emissions’’ 

in the Washington SIP applicable in the 

area regulated by SWCAA. The EPA is 

proposing to revise its interpretation of 

the CAA with respect to affirmative 

defense provisions in SIPs. Previously 

the EPA assessed whether such 

provisions met certain requirements, 

such as being limited to monetary 

penalties rather than injunctive relief 

and containing sufficiently robust 

criteria to assure that the defense 

applied only in appropriately narrow 

circumstances. The EPA notes that 

SWAPCA 400–107 Excess Emissions 

did not meet the Agency’s prior 

interpretation of the CAA with regard to 

affirmative defense provisions in SIPs. 

Regardless of that fact, however, the 

Agency must now evaluate such 

provisions to determine whether they 

are constructed in a way that would 

purport to preclude federal court 

jurisdiction under section 113 to assess 

civil penalties or other forms of relief for 

violations of SIP emission limits, to 

prevent courts from considering the 

statutory factors for the assessment of 

civil penalties under section 113 or to 

interfere with the rights of litigants to 

pursue enforcement consistent with 

their rights under the citizen suit 

provision of section 304. 

The EPA interprets SWAPCA ‘‘400– 

107 Excess Emissions’’ to provide 

affirmative defenses that operate to limit 

the jurisdiction of the federal court in an 

enforcement action and to limit the 

authority of the court to impose 

monetary penalties as contemplated in 

CAA sections 113 and 304. The 

provision provides that if a violating 

source meets certain criteria set forth in 

SWAPCA 400–107, then the excess 

emissions are ‘‘excused and not subject 

to penalty.’’ By proscribing any 

enforcement by any party if the source 

meets certain criteria, SWAPCA 400– 

107 creates affirmative defenses that 

would preclude enforcement for excess 

emissions that would otherwise 

constitute a violation of the applicable 

SIP emission limitations. Thus, the EPA 

believes that this provision interferes 

with the intended enforcement structure 

of the CAA, through which parties may 

seek to bring enforcement actions for 

violations of SIP emission limits and 

courts may exercise their jurisdiction to 

determine what, if any, relief is 

appropriate. 

For these reasons, the EPA is 

proposing to find SWAPCA ‘‘400–107 

Excess Emissions’’ substantially 

inadequate to meet CAA requirements 

and the EPA is thus proposing to issue 

a SIP call with respect to this provision. 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal or policy issues. 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

EPA’s SPNR, in response to the Petition, 

merely states the EPA’s current 

interpretation of the statutory 

requirements of the CAA and does not 

require states to collect any additional 

information. To the extent that the EPA 

proposes to issue a SIP call to a state 

under CAA section 110(k)(5), the EPA is 

only proposing an action that requires 

the state to revise its SIP to comply with 

existing requirements of the CAA. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities.68

After considering the economic 

impacts of this SNPR on small entities, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Courts have interpreted the RFA to 

require a regulatory flexibility analysis 

only when small entities will be subject 

to the requirements of the rule. See, e.g., 

Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 

2000); Mid-Tex Elec. Co-op, Inc. v. 

FERC, 773 F.2d 327 (D.C. Cir. 1985). 

This proposed rule will not impose any 

requirements on small entities. Instead, 

the proposed action merely states the 

EPA’s current interpretation of the 

statutory requirements of the CAA. To 

the extent that the EPA proposes to 

issue a SIP call to a state under CAA 

section 110(k)(5), the EPA is only 

proposing an action that requires the 

state to revise its SIP to comply with 

existing requirements of the CAA. The 

EPA’s action, therefore, would leave to 

states the choice of how to revise the 

SIP provision in question to make it 

consistent with CAA requirements and 

determining, among other things, which 

of the several lawful approaches to the 

treatment of excess emissions during 

SSM events will be applied to particular 

sources. We continue to be interested in 

the potential impacts of the proposed 

rule on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This rule does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

The action may impose a duty on 

certain state governments to meet their 

existing obligations to revise their SIPs 

to comply with CAA requirements. The 

direct costs of this action on states 

would be those associated with 

preparation and submission of a SIP 

revision by those states for which the 

EPA issues a SIP call. Examples of such 

costs could include development of a 

state rule, conducting notice and public 

hearing and other costs incurred in 

connection with a SIP submission. 

These aggregate costs would be far less 

than the $100-million threshold in any 

one year. Thus, this rule is not subject 

to the requirements of sections 202 or 

205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 


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because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

regulatory requirements of this action 

would apply to the states for which the 

EPA issues a SIP call. To the extent that 

such states allow local air districts or 

planning organizations to implement 

portions of the state’s obligation under 

the CAA, the regulatory requirements of 

this action would not significantly or 

uniquely affect small governments 

because those governments have already 

undertaken the obligation to comply 

with the CAA. 

E. Executive Order 13132—Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it will 

simply maintain the relationship and 

the distribution of power between the 

EPA and the states as established by the 

CAA. The proposed SIP calls are 

required by the CAA because the EPA 

is proposing to find that the current SIPs 

of the affected states are substantially 

inadequate to meet fundamental CAA 

requirements. In addition, the effects on 

the states will not be substantial because 

where a SIP call is finalized for a state, 

the SIP call will require the affected 

state to submit only those revisions 

necessary to address the SIP 

deficiencies and applicable CAA 

requirements. While this action may 

impose direct effects on the states, the 

expenditures would not be substantial 

because they would be far less than $25 

million in the aggregate in any one year. 

Thus, Executive Order 13132 does not 

apply to this action. 

In the spirit of Executive Order 13132, 

and consistent with the EPA’s policy to 

promote communications between the 

EPA and state and local governments, 

the EPA specifically solicits comment 

on this SNPR from state and local 

officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). In this action, the EPA is not 

addressing any tribal implementation 

plans. This action is limited to states. 

Thus, Executive Order 13175 does not 

apply to this action. However, the EPA 

invites comment on this SNPR from 

tribal officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it merely prescribes 

the EPA’s action for states regarding 

their obligations for SIPs under the 

CAA. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution or use of energy. 

This action merely prescribes the EPA’s 

action for states regarding their 

obligations for SIPs under the CAA. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs the 

EPA to provide Congress, through OMB, 

explanations when the EPA decides not 

to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

the EPA is not considering the use of 

any voluntary consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

Feb. 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the U.S. 

The EPA has determined that this 

SNPR will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. The rule is 

intended to ensure that all communities 

and populations across the affected 

states, including minority, low-income 

and indigenous populations 

overburdened by pollution, receive the 

full human health and environmental 

protection provided by the CAA. This 

proposed action concerns states’ 

obligations regarding the treatment they 

give, in rules included in their SIPs 

under the CAA, to excess emissions 

during startup, shutdown and 

malfunctions. This SNPR would require 

17 states to bring their treatment of 

these emissions into line with CAA 

requirements, which would lead to 

sources’ having greater incentives to 

control emissions during such events. 

K. Determination Under Section 307(d) 

Pursuant to CAA section 307(d)(1)(V), 

the Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d) 

establishes procedural requirements 

specific to rulemaking under the CAA. 

Section 307(d)(1)(V) provides that the 

provisions of section 307(d) apply to 

‘‘such other actions as the Administrator 

may determine.’’ 

L. Judicial Review 

Section 307(b)(1) of the CAA indicates 

which Federal Courts of Appeal have 

venue for petitions of review of final 

agency actions by the EPA under the 

CAA. This section provides, in part, that 

petitions for review must be filed in the 

U.S. Court of Appeals for the District of 

Columbia Circuit (i) when the agency 

action consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule responding to the Petition is 

‘‘nationally applicable’’ within the 

meaning of section 307(b)(1). First, the 


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69See, e.g., State of Texas, et al. v. EPA, 2011 U.S. 

App. LEXIS 5654 (5th Cir. 2011) (finding SIP call 

to 13 states to be of nationwide scope and effect and 

thus transferring the case to the U.S. Court of 

Appeals for the D.C. Circuit in accordance with 

CAA section 307(b)(1)). 

rulemaking addresses a Petition that 

raises issues that are applicable in all 

states and territories in the U.S. For 

example, the Petitioner requested that 

the EPA revise its SSM Policy with 

respect to whether affirmative defense 

provisions in SIPs are consistent with 

CAA requirements. The EPA’s response 

is relevant for all states nationwide. 

Second, the rulemaking will address a 

Petition that raises issues relevant to 

specific existing SIP provisions in states 

across the U.S. that are located in each 

of the 10 EPA Regions, 10 different 

federal circuits and multiple time zones. 

Third, the rulemaking addresses a 

common core of knowledge and analysis 

involved in formulating the decision 

and a common interpretation of the 

requirements of the CAA being applied 

to SIPs in states across the country. 

Fourth, the rulemaking, by addressing 

issues relevant to appropriate SIP 

provisions in one state, may have 

precedential impacts upon the SIPs of 

other states nationwide. Courts have 

found similar rulemaking actions to be 

of nationwide scope and effect.69

This determination is appropriate 

because in the 1977 CAA Amendments 

that revised CAA section 307(b)(1), 

Congress noted that the Administrator’s 

determination that an action is of 

‘‘nationwide scope or effect’’ would be 

appropriate for any action that has 

‘‘scope or effect beyond a single judicial 

circuit.’’ H.R. Rep. No. 95–294 at 323– 

324, reprinted in 1977 U.S.C.C.A.N. 

1402–03. Here, the scope and effect of 

this rulemaking extends to numerous 

judicial circuits because the action on 

the Petition extends to states throughout 

the country. In these circumstances, 

section 307(b)(1) and its legislative 

history authorize the Administrator to 

find the rule to be of ‘‘nationwide scope 

or effect’’ and thus to indicate the venue 

for challenges to be in the D.C. Circuit. 

Thus, any petitions for review must be 

filed in the U.S. Court of Appeals for the 

District of Columbia Circuit. 

Accordingly, the EPA is proposing to 

determine that this will be a rulemaking 

of nationwide scope or effect. 

In addition, pursuant to CAA section 

307(d)(1)(V), the EPA is determining 

that this rulemaking action will be 

subject to the requirements of section 

307(d), which establish procedural 

requirements specific to rulemaking 

under the CAA. 

IX. Statutory Authority 

The statutory authority for this action 

is provided by CAA section 101 et seq. 

(42 U.S.C. 7401 et seq.). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Affirmative 

defense, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, 

Carbon monoxide, Excess emissions, 

Greenhouse gases, Hydrofluorocarbons, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Methane, Nitrogen dioxide, Nitrous 

oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and 

recordkeeping requirements, Startup, 

shutdown and malfunction, State 

implementation plan, Sulfur 

hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

Dated: September 5, 2014. 

Janet G. McCabe, 

Acting Assistant Administrator. 

[FR Doc. 2014–21830 Filed 9–16–14; 8:45 am] 

BILLING CODE 6560–50–P 


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