***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 1 of 146 6560-50-P ENVIRONMENTAL PRO TECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2012-0322; FRL- xxxx-x9914-41-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 a nd 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 pe tition for rulemaking filed by the Sierra Club (the Petition). By notice published on Febr uary 22, 2013, the EPA proposed its response to the Petition’s requests c oncerning 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 th at 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 defens e provisions in state implementation plans (SIPs). For specific affirmative defense provi sions 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 inadequ acy and SIP calls. For specific provisions***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 2 of 146 that the EPA has independently identified, incl uding SIP provisions in states not included in the February 2013 proposal notice, we are proposing new findi ngs 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, D.C. ADDRESSES: Submit your comments, identifie d by Docket ID No. EPA-HQ-OAR2012-0322, 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, D. C. 20460. Please include a total of two copies.

• Hand Delivery : U.S. Environmental Protection Agency, EPA Docket Center, William Jefferson Clinton West Buildi ng, Room 3334, 1301 Constitution Avenue, NW, Washington, D.C. 20004, Attention Dock et ID No. EPA-HQ-OAR-2012-0322. Such deliveries are only accepted dur ing the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Instructions . Direct your comments to Dock et ID No. EPA-HQ-OAR-2012-0322. The EPA’s policy is that all comments receiv ed will be included in the public docket without change and may be made available online at http://www.regulations.gov ,***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 3 of 146 including any personal information provide d, unless the comment includes information claimed to be Confidential Business Info rmation (CBI) or other information whose disclosure is restricted by st atute. Do not submit informati on that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov website 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 co mment 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 othe r contact information in th e body of your comment and with any CD you submit. If the EPA cannotread your comment due to technical difficulties and cannot contact you for clarificatio n, the EPA may not be able to consider your comment. Electronic files should avoid th e 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 doc ket 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 restri cted by statute. Certai n other material, such as copyrighted material, will be publicly ava ilable only in hard copy. Publicly available***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 4 of 146 docket materials are availabl e either electronically at http://www.regulations.gov or in hard copy at the U.S. Environmental Prot ection Agency, EPA Docket Center, William Jefferson Clinton West Building, Room 3334, 1301 Constitution Ave., NW, Washington, D.C. 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 fo r the Air Docket is (202) 566-1742. Public Hearing : A public hearing iswill be held on October 7, 2014, at the William Jefferson Clinton West Building, Room ___,1117A, 1301 Constitution Avenue, Washington, D.C. 20460. The public hearing wi ll 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 orinquiring as to whether a hearing is to be held should contact Ms. Pamela Long, Air Quality Planning Division, Office of Air Quality Planning and Standard s (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 th e 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 a rrive 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 id entification to the security staff in order to gain access to***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 5 of 146 the meeting room. Please note that the REAL ID Act, passed by Congress in 2005, established new requirements for entering federal faciliti es. These requirements took effect July 21, 2014. If your dr iver’s license is issued by Alaska, American Samoa, Arizona, Kentucky, Louisiana, Maine, Mass achusetts, 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 publ ic hearing will be held. Acceptable alternative form s of identification include: federal employee badges, passports, enhanced driver’s licenses, and m ilitary identification cards. In addition, you will need to obtain a property pass for a ny personal belongings you bring with you. Upon leaving the building, you will be required to re turn this property pass to the security desk. No large signs will be allowed in the buildi ng, 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 Nove mber 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 hear ing. The EPA will provide equipment for commenters to show overhead slides or make computerized slide presentations if we receive special requests in advance. Oral te stimony will be limited to 5 minutes for each commenter. The EPA encourages commenters to provide th e EPA with a copy of their oral testimony electronically (via email or CD) or in hard copy form. The hearing schedule, including***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 6 of 146 lists of speakers, will be posted on the EPA’s website 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 clos ely as possible on the day of the hearing; however, please plan for the hearing to run e ither ahead of schedule or behind schedule. FOR FURTHER INFORMATION CONTACT: Questions concerning this SNPR should be addressed to Ms. Lisa Sutt on, 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 ataddress: sutton.lisa@epa.gov

. If you have questions concerning the pub lic hearing, please contact Ms. Pamela Long, U.S. Environmental Protection Agen cy, Office of Air Quality Planning and Standards, Air Quality Pla nning Division (C504-01), Rese arch 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 SI P, please contact th e 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 7 of 146 EPA Regional Office Contact for Regional Office (person, mailing address, telephone number) State 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?***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 8 of 146 Entities potentially affected by this rule include states, U.S. territories, local authorities and eligible tribes that are curre ntly administering, or may in the future administer, EPA-approved implemen tation plans (“air agencies”). 1 The EPA’s action on the Petition is potentially of interest to a ll such entities because the EPA is evaluating issues related to basic CAA requirements fo r 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 even ts in general. In addition, in the final action based on this supplemental proposal, the EPA may find specifi c SIP provisions in states identified either in th e Petition or by the EPA indepe ndently to be substantially inadequate to meet CAA requirements, pur suant to CAA section 110(k)(5), and thus those states will potentially be a ffected by this rulemaking directly. 2 For example, if a state’s existing SIP includes an affirmative defense provision that would purport to alter

1 The EPA respects the unique relationship between the U.S. government and tribal authorities and acknowledges that tribal conc erns are not intercha ngeable with state concerns. Under the CAA and the EPA regulatio ns, a tribe may, but is not required to, apply for eligibility to have a tribal impleme ntation plan (TIP). For convenience, we refer to “air agencies” in this rulemaking collectiv ely 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 ma y in the future administer, EPAapproved implementation plans. The EPA not es 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 “ai r agency” or “air agencies” when meaning to refer to one, some or all of the 39 states iden tified 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 ma y have applicability to tribes as well. 2 The specific SIPs that include affirm ative defense provisions identified by the EPA notes that commenters did bri ngindependently are listed under section II.B of this SNPR (see table). Furthermore, in comments receiv ed on the February 2013 proposal notice, a commenter broughtto the EPA’s attention a one affirmative defense provision in the a SIP, that of Texas SIP . In the rulemaking docket, the comment letter may be found at EPA-HQ-OAR-2012-0322-0621.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 9 of 146 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 inconsis tent 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 exce ss emissions. When fina lized, this action will embody the EPA’s updated SSM Policy for a ll SIP provisions relevant to excess emissions during SSM events. B. Where can I get a copy of this do cument and other related information? In addition to being available in the docke t, an electronic copy of this SNPR will be available on the World Wide Web. Fo llowing signature by the EPA Assistant Administrator, a copy of this SNPR will be posted on the EPA’s website, under “State Implementation Plans to Address Em issions 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 identif y electronically within the CD the specific information that is claimed as CBI. In addi tion to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 10 of 146 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 in formation 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 (C FR) 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 burd ens, 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 sugge st alternatives.

• Explain your views as clearly as possibl e, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 11 of 146 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 ke y terms used in this notice? II. Overview of This SNPR A. How does this notice supplementor 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 a ny state that recei ves 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 thr ough 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 Affirma tive 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 identi fied 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 12 of 146 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 Ai r Pollution Control District 4. California: Imperial County Air Pollution Control District 5. California: San Joaquin Valley Air Pollution Control District 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: Regulat ory 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 Minorit y Populations and Low-Income Populations K. Determination Under Section 307(d) L. Judicial Review IX. Statutory Authority E. What is the meaning of key te rms used in this notice?***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 13 of 146 For the purpose of this notice, the foll owing definitions appl y 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 defenda nt, 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 particul ar 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 a nd 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 appropr iate CAA jurisdiction. The term automatic exemption means a generally applic able provision in a SIP that would provide that if cer tain 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 un ilaterally to grant exemptions or variances from applicable emission limitations or cont rol measures, or to excuse noncompliance***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 14 of 146 with applicable emission limitations or control measures, which would be binding on EPA and the public, in spite of SIP provision s 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 am bient air quality standards that the EPA establishes under CAA section 109 for criter ia pollutants for purposes of protecting public health and welfare. The term Petition refers to the petition for ru lemaking titled, “Petition to Find Inadequate and Correct Seve ral State Implementation Plan s under Section 110 of the Clean Air Act Due to Startup, Shutdown, Ma lfunction, 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 cessati on of operation of a source for
any reason. The term SIP means or refers to a State Impl ementation Plan. Generally, the SIP is the collection of state statutes and re gulations approved by the EPA pursuant to CAA section 110 that together provide for impleme ntation, maintenance and enforcement of a national ambient air quality standard (or a ny revision thereof) promulgated under section***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 15 of 146 109 for any air pollutant in each air quality control region (or portion thereof) within a state. In some parts of this notice, statemen ts about SIPs in genera l would also apply to tribal implementation plans in genera l 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 ma lfunction at a source. It does not include periods of maintenance at such a s ource. An SSM event is a period of startup, shutdown or malfunction during which there ar e 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 malfunctio n at a source. The most comprehensive statement of the EPA’s SSM Po licy 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 Po licy 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 16 of 146 action on a petition for rulemaking that the Sie rra Club (the Petitioner) filed with the EPA Administrator on June 30, 2011 (t he Petition). In that Febr uary 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 requ ests, 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 ex cess 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 re vising 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. First, based on reexamination of statutory requirements in light of a recent court decision, we are revising our interpreta tion of the CAA con cerning the issue of affirmative defense provisions in SIPs. Acco rdingly 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 pr oposed in the February 2013 proposal notice ( i.e. , to grant in part and to de ny in part the Petition on this request). The basis for our proposed revision of the SSM Policy with resp ect 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 17 of 146 Second, we propose to grant the Petitioner’ s request that the EPA apply a revised interpretation to, and effectuate the rem oval 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 respec t 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 affi rmative 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 affirma tive defense provisions identified by the Petitioner, the EPA has independently identif ied 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 defe nse provisions are found in six states’ SIPs. For two of the states whose SIPs include ne wly 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 Pe tition. For the other four states (New Mexico, South Carolina, Washington and West Virgin ia), we did propose a SIP call in the February 2013 proposal notice for one or more SIP provisions, but at th at time we did not propose a SIP call for all affirmative defense pr ovisions 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 concerni ng affirmative defense provisions in SIPs***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 18 of 146 and to avoid confusion that may arise due to recent court decisions relevant to such provisions under the CAA. Secti on 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 provisi ons or to take action on such provisions that EPA has independently identified, the Agen cy also proposes to find that the existing SIP provision at issue is s ubstantially inadequate to m eet 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 proposespromulgates a final finding of substantial inadequacy and a SIP call, the EPA has in the Fe bruary 2013 notice proposed a schedule forallowing 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 sc hedule apply to all SIP provisions identified as substantially inadequate in this supplemental proposal. What EPA proposes in this SNPR supe rsedes the February 2013 proposal only insofar as the SNPR supplements or revi ses the February 2013 proposal notice with respect to the issues related to affirmative de fense 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 issu es discussed in the February 2013 proposal notice and in this SNPR. This action provides the EPA an opport unity 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, a nd the EPA solicits comment on its proposed***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 19 of 146 responses. We note that an opportunity to comment on the EPA’s proposed responses to other issues raised in the Pe tition 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. More over, because the EPA’s interpretation of the CAA with respect to the legal basis for affirmative defense pr ovisions 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 i ssues related to affirmative defense provisions in SIPs gene rally, 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 di scussed 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 ex cess 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 gui dance 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 signi ficantly clarifying, rest ating and revising its***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 20 of 146 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 gr ant the Petitioner’s request that the EPA rescind its interpretati on 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 ba sis that those SIP provisions are inconsistent with CAA requirements because they include affirmativ e defenses. The EPA is proposing SIP calls with respect to affirmative defense SIP provisi ons in each of the 17 states (for provisions applicable in 23 statewide and local jurisdictions 3 and no tribal areas) that show either “Grant” or “SIP call” as the proposed ac tion 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 Wi th SIP Affirmative Defense Provisions for Which the EPA Proposes to Grant the Petition or to Add ress Such Provisions Identified by the EPA

EPA Region State Proposed action awith 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

3 The state has the primary re sponsibility 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 on a local or regional government, agency or instrumentality to ca rry out the SIP or a portion of the SIP within its ju risdiction. 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 ru lemaking in more than one jurisdiction.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 21 of 146 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 forAlbuquerqueBernalillo 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)

a The 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 wa s 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 sp ecific affirmative defens e provisions in the state’s SIP are substantially inadequate to meet CAA requirements for the reason that***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 22 of 146 these provisions are inconsistent with the CAA. For each state for which the proposed acti on 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 affirmativ e defense provisions from the SIP at issue. The EPA’s revised proposal under this SNPR concerning affirmative defense provisions in specific states’ SIPs is summari zed in section VII of this SNPR. The SIP calls proposed in this SNPR appl y 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 de fense provisions in 17 states. The 17 states include two states for which we are newly proposing SIP calls: Calif ornia and Texas. For the remaining 15 states, we already proposed SIP calls in the February 2013 proposal notice for one or more SSM-related provision s, 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 cha nged from that of our earlier proposal. For Jefferson County, Kentucky, the affirma tive defense provisions for which we proposed in February 2013 to grant the Peti tion 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 pr oposed a SIP call for Kentucky, for other provisions ( i.e. , provisions not concerning affirmativ e defenses in Jefferson County), and

4 See , Approval and Promulgation of Implemen tation Plans; Kentucky; Approval of Revisions to the Jefferson County Porti on of the Kentucky SIP; Emissions During Startups, Shutdowns, and Malfunc tions, 79 FR 33101 (June 10, 2014).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 23 of 146 this SNPR does not change what we propos ed 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 substant ial inadequacy and issues a SIP call for any state, the EPA’s final action will estab lish a deadline by which the state must make a SIP submission to rectify the deficiency. Purs uant to CAA section 110(k)(5), the EPA has authority to set a SIP submission deadline thatdoes not exceed 18 months from the date the Agency notifies the state of the inadequacy. The EPA inte nds to disseminate notice of any final findings of substantial inadequacy and the issuance of any SIP call promptly after the Administrator si gns the final notice. The EPA has already proposed to provide the full 18-month period permissible by statute to give states sufficient time to make appropriate SIP revisions following their own SIP development process. Such a sc hedule will allow for the necessary SIP development process to correct the deficien cies yet still achieve the necessary SIP improvements as expeditiously as practicable. Accordingly, the EPA is proposing to es tablish the due date for the state to respond to the SIP call to be 18 months afte r the date on which th e 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 woul d 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 24 of 146 EPA’s interpretation of the CAA reflected in the SSM Policy as clarified and updated through this rulemaking, in notice-and-co mment rulemaking on the individual SIP submissions. D. What are potential impacts on affected states and sources? The EPA’s February 2013 proposal noti ce included an explanation of the potential impacts of all parts of th is proposed action on states and sources . This section of the SIP calls proposed in that notice. That expl anation is repeated here, with additions to encompass and highlight the potential im pacts of the proposed further revision of this SNPR addresses only the differential impact of this supplemental proposal to require certain states the SSM Policy to removedisallow affirmative defensesdefense provisions for excess emissions during malfunctions

. 5 , the proposed revisions to the earlier-proposed SIP calls and the additional SIP calls proposed in this notice. The issuance of a SIP call that includes a requirement to remove an a ffirmative defense for excess emissions during malfunctions would require an affected state to take actionone or more actions to revise that aspect of its SIP. That actionThese actions are described below, followed by a description of how those actions by the state may, in turn, affect sources as described below. The states that would receive a SIP cal l 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 revisi on is consistent with the

5 Because most of the affirmative defense provisions that are newly proposed for SIP calls in this SNPR are provisions that would apply to violations due to malfunctions , this section II.D of the SNPR mainly addresses potential impacts resulting from the removal from a SIP of affirmative defense provisi ons applicable to malfunctions. Note that potential impacts could result from removal of affirmative defense provisions applicable to startup and shutdown

.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 25 of 146 requirements of the CAA as those requirements will be interpreted in the Federal Register notice for the final action in this rulemaking

. The EPA’s revised interpretation of the CAA as reflected in the SSM Policy would not allow a SIP to contain a directo r’s discretion provision for excess emissions during malfunctions, an automatic exemption for excess emissions during malfunctionsIf the final SIP call identifies an automatic ex emption provision in a SIP, that provision would have to be removed entirely and an affected source coul d no longer depend on the exemption to avoid all liability for excess em issions. If the final SIP call identifies an affirmative defense provision, that provision would have to be removed entirely and an affected source could no longer depend on th e provision to shield it from monetary penalties assessed by a court for excess emissions; however, a court may nevertheless decide not to assess monetary penalties in light of the effort by the s ource to avoid and/or minimize the excess emissions. Some other provisions, for example a problematic enforcement discretion provision, could be ei ther removed entirely from the SIP or retained if revised appropriat ely 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 disc retion rather than ame nding the provision to remove any implication that the provision limits EPA or citizen suits, this removal would not bar the ability of the st ate to apply discretion in its own enforcement program but rather would make the exercise of su ch discretion case-by -case in nature. In addition, affected states may choose to consider reassessin g particular emission limitations, for example to determine whether those limits can be revised such that well-***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 26 of 146 managed 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 fo r consistency with all applicable CAA requirements. A state that choos es to revise particular emi ssion limitations, in addition to removing the aspect of the existing provision th at 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 whether and how it would potentially have to, or would c hoose to, change its equipment or practices in order to operate with emissions that co mply with the revised SIP, will depend on the nature and frequency of the s ource’s SSM events and how the state has chosen to revise the SIP to address excess emissions during SSM events. The EPA rec ognizes that after all the responsive SIP revisions are in place and are being implemented by the states, some sources may need to, or may have strong business reasons to, modify their physical equipment or operating practices. These ch anges could be aimed at improving the effectiveness of the emission control system s when operating as designed during startup and shutdown, increasing the durability of components to reduce the occurrence of malfunctions, and/or improving monitoring syst ems to detect and manage malfunctions promptly. If a state merely removes an ex emption, affirmative defense provision, or impermissible enforcement discretion provision, an affected source may need to, or may***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 27 of 146 rationally choose to, make changes of these t ypes to better control emissions so as to comply with existing emission limits con tinuously and thereby reduce the risk of enforcement action. If the stat e establishes altern ative emission limits for startup and shutdown operation, the source will need to m eet 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 pr ovisions identified in our February 2013 proposal notice and in this supplemental propos al, the diversity of potentially affected sources, the unknown nature of the states’ res ponses to the SIP calls , and the fact that because of existing automatic exemptions ma ny 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 ch anges 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 will not allow the EPA to make such estimates. This supplemental proposal concerns onl y affirmative defense provisions. The EPA’s interpretation of the CAA as reflected in the existing SSM Policy does not allow a SIP to contain a director’s discretion pr ovision for excess emissions during SSM events including malfunctions, an automatic exemp tion for excess emissions during SSM events including malfunctions, or an enforcement discretion prov ision that purports to restrict citizen suits or federal personnel. 6 In our February 2013 proposal notice, we proposed to interpret the CAA to disallow affirmative de fense provisions appli cable to startup and

6 To be clear, we point out that the EPA’s interpretation of the CAA as reflected in the SSM Policy likewise does not allow a SIP to pr ovide director’s discretion or automatic exemptions for excess emissions that occur during startup and shutdown.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 28 of 146 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 during malfunctions would retain its ability to apply discretion in its enforcement program. Such enforcement discre tion could be exercised case-by-case, or the SIP may include a provision that dire cts 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 di scretion provision cannot apply to anyone other than state personnel. For example, th e 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 ot her parties pursuant to the citizen suit provision. An affected state could include an appropriate enforcement discretion provision in the same SIP submission that ad dresses the SSM provisi ons 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 itthe source would potentially have incentives to change its equipment or practi ces, 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 even ts. After responsive SIP revisions are in place and are being implemented by the states , some sources may have strong incentives***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 29 of 146 to take steps to increase th e durability of components and monitoring systems to detect and manage malfunctions promptly, as a cour t may take such steps into consideration when determining a remedy should there be an enforcement action against excess emissions that have oc curred during a malfunction. For the same reasons as cited above, the EPA is unable to estimate the number, na ture and overall cost of the changes that emission sources may ultimately make as an in direct 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 numbe r, nature and overall cost of the changes that sources may ultimately make as an indi rect 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 oblig ated and authorized to issue the proposed SIP calls to remove affirmative defense pr ovisions even though the EPA is unable to estimate the number, nature, cost and resul ting 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?***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 30 of 146 The Petitioner submitted the Petition to the EPA on June 30, 2011. In the Petition, the Petitioner requested that the EPA address va rious 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 request s concerning the treatment in SIPs of excess emissions from sources during SSM events. In additi on, the Petitioner reque sted that the EPA evaluate specifically identified existing provi sions 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 emissi ons applicable in judi cial proceedings is contrary to the CAA. The Petitioner based its overarch ing arguments concerning the legality of affirmative defense provisions in SIPs upon the explicit st atutory provisions of CAA sections 113 and 304. Thus, the Petitione r advocated that th e 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 rela ted 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 respons e at that time concerning the issue of affirmative defense provisions in SIPs ; this issue. As explained in section III.B of this***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 31 of 146 SNPR, the EPA did make such distinction in its proposed re sponse in the February 2013 proposal notice, then reasoning that affirma tive defense provisions were appropriate for violations due to malfunction events. The issu e 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, 7 including automatic exemptions from applicable emission limitations during SSM events, director’s discretion provisions that provide discretiona ry 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 th at are not consistent with the CAA or the recommendations in the EPA’s SSM Policy. Th e Petitioner identified specific provisions in SIPs of 39 states that it considered inc onsistent with the CAA and explained the basis for its objections to the provisions. Among th e 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 whet her the EPA previously explicitly evaluated the provision as an affi rmative 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 alle ged SIP deficiencies; only issues related to affirmative defense provisi ons are addressed in this SNPR, and the EPA

7 The term “impermissible provision” as used throughout this SNPR is generally intended to refer to a SIP provision that the EPA belie ves 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 32 of 146 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 Petitione r reasoned that all regulatory provisions should be clear and unambiguous on their face a nd that any reliance on interpretive letters to alleviate facial ambiguity in SIP provision s can lead to later problems with compliance and enforcement. Extrapolating from several in stances in which the basis for the original approval of a SIP provision re lated to excess emissions during SSM events was arguably not clear, the Petitioner cont ended that the EPA should neve r 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 st atutory requirements because the Agency interprets the CAA to authorize states to crea te SIP provisions that provide an affirmative defense for qualifying sources to assert in th e 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 in clude appropriate limita tions and conditions for affirmative defenses, the Petitioner objectedto any such provisions. The Petitioner argued that any affirmative defense that purports to eliminate or alter the jurisdiction of***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 33 of 146 federal courts to assess monetary penalties or any other form of relief for violations of SIP emission limits is contrary to the require ments of the CAA. In other words, no matter how narrowly drawn and no matter what the limit ations or conditions for the affirmative defense may be, the Petitioner argued that no such affirmative defe nses are consistent with CAA requirements for SIP provisions. In addition, the Petitioner identified specifi c 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 wi th 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 emissi on limitations through various mechanisms. The Petitioner argued that such pr ovisions are therefore inconsis tent with sections 113 and 304 and the fundamental enforcement structure of the CAA created by Congress. Even if the provisions were not othe rwise contrary to CAA require ments, the Petitioner argued, each of the identified affirmative defense provisi ons is also inconsistent in one or more ways with the EPA’s own interpretati on of the CAA provided in the 1999 SSM Guidance. For example, some of the identifi ed provisions do not apply only to monetary penalties and purport to bar in junctive relief as well, so me 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 34 of 146 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 Fe bruary 22, 2013. In that proposal, the EPA explaine d 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 ad dressed a number of interrelated issues concerning the proper treatment of exce ss 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 affirm ative defense provisions in SIPs. With respect to the Petitioner’s overarchi ng 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 resp ect 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 reas oned that such provisi ons are appropriate for violations due to genuine malfunction even ts, in order to resolv e the inherent tension between the fact that the CAA requires that SIP emission limitations must apply continuously and the fact that even properl y designed, maintained and operated sources may sometimes have difficulty meeting emission limitations for reasons beyond their control. By contrast, the EPA proposed to gr ant the Petitioner’s cl aim with respect to affirmative defenses applicable to planned ev ents such as startup and shutdown. This was a change from the EPA’s interpretation of the CAA in the 1999 SSM Guidance, in which***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 35 of 146 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 recomm ended 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 Ag ency to reconsider the appropriateness of affirmative defense provisions applicable during startup a nd shutdown, which are ordinary modes of operation that are generally predictable an d 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 in dicated that providing affirmative defenses applicable during planned events such as st artup and shutdown was not consistent with the EPA’s interpretation of th e CAA to support such provision s for malfunctions and was tantamount to allowing sources to be shielded from monetary penalties for violations due to conduct that is predictabl e and within their control. 8 With respect to the specific affirmative defense provisions identified by the Petitioner as deficient, the EPA evaluated ea ch 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 include d examination of the specific provisions in light of the EPA’s interpretations of th e CAA and recommendations in the 1999 SSM

8 Some commenters on the February 2013 pr oposal notice focused great attention on whether startup and shutdown are modes of “normal” source operation. The EPA assumes that every source is designed, main tained and operated w ith the expectation it will at least occasionally start up and shutdownshut down , and thus these modes of source operation are “normal” in the sense that they are 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 36 of 146 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 concer ning affirmative defense provisions to the extent applicable to malfunction events in severalthree jurisdictions: (i) Arizona; (ii) Maricopa County, Arizona; and (iii) Colorado. The EPA pr oposed 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 pr ovisions in the following jurisdictions: (i) Alaska; (ii) Arizona (affirma tive defense for startup and s hutdown only); (iii) Maricopa County, Arizona (affirmative defense for star tup and shutdown only); (iv) Arkansas; (v) Colorado (affirmative defense for startup and shutdown only); (vi) District of Columbia; (vii) Illinois; (viii) Indiana; (ix) Je fferson County, Kentucky; 9 (x) Michigan; (xi) Mississippi; (xii) New Mexico ; (xiii) Virginia; and (xiv) Washington. The EPA’s evaluation of the specific provisions in these st ates 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 defi cient because they extended not only to monetary penalties but also to injunctive relief, because they had insufficient criteria to

9 The EPA notes that the stat e 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 ha s already approved the necessary SIP revisions. See 79 FR 33101 (June 10, 2014). Accordi ngly, the EPA’s final action on the Petition will not need to incl ude a finding of substantial inadequacy and SIP call for Jefferson County, Kentucky. The recently approv ed revision did not create an affirmative defense provision, so there is no need to r eaddress this issue in this jurisdiction.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 37 of 146 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 preclud e EPA authority to create affirmative defense provisions in the Agency’s own regul ations imposing emission limits on sources, because such provisions purport to alter the jurisdiction of federal courts to assess liability and impose penalties fo r 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. 10 The EPA believes that the r easoning 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 provi sions. 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. On April 18, 2014, the U.S. Court of Appeals for the District of Columbia Circuit issued itsThe court’s decision in NRDC v. EPA

. 11 This decision 12 pertained to a challenge to the EPA’s National Emission Standard s for Hazardous Air Pollutants (NESHAP) regulations issued pursuant to CAA secti on 112 to regulate hazardous air pollutants from sources that manufact ure Portland cement. 13 In addition to imposing specific emission

10 See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). 11 See 749 F.3d 1055 (D.C. Cir. 2014). 12 Id. 13 The NESHAP promulgated after the 1990 CA A Amendments are also referred to as “maximum achievable control techno logy” or “MACT” standards.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 38 of 146 limitations for the relevant pollutants from the affected sources, the EPA also created an affirmative defense that sources could assertin judicial enforcement proceedings for violations due to excess emissions that o ccur during qualifying ma lfunction events. The affirmative defense provision in the Portla nd cement NESHAP requi red 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 s ource’s conduct before, during and after the event. The EP A notes that these specific cr iteria required to establish the affirmative defense in the Portland cemen t NESHAP are functionally the same as the criteria that the EPA previously recommende d to states for SIP provisions in the 1999 SSM Guidance and that the EPA explicitly repe ated these same recommended criteria to states in the February 2013 proposal noti ce. 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 anothe r source category, to illustrate how states might elect to word appropriate affi rmative defense provisions in SIPs. 14 In other words, the affirmative defense provision at issue in the NRDC v. EPA case was essentially equivalent to the type of provision, both concep tually and in terms of specific regulatory language, which the EPA would previously have considered consistent with CAA requirements for affirmative defense provi sions 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

14 See February 2013 proposal noti ce, 78 FR 12459 at 12478-80.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 39 of 146 evaluation of the Petition with respect to the overarching issue of affirmative defense provisions in SIPs. In general, the EPA propos ed: (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 defens e provisions for violations due to excess emissions during periods of malfunction; and (i i) to grant the request to rescind the SSM Policy with respect to affirmative defens e provisions for violations due to excess emissions during periods of st artup and shutdown. Consistent with this interpretation of the CAA, the EPA previously proposed to revi se 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 na rrowly 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 SIP provisi ons 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 provision s included affirmative defense provisions of various types, including some that the Agen cy had previously approved as consistent with its interpretation of the CAA in th e 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 wi th 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 40 of 146 Circuit in NRDC v. EPA has called into question the legal basis for affirmative defense provisions applicable to viol ations of CAA requirements. The reasoning used by that court, as logically extended to SIP provision s, indicates that neither states nor the EPA have authority to alter either th e rights of other part ies to seek relief or the jurisdiction of the federal courts to impose relief for viol ations 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 Po licy 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 penaltie s under certain conditions through creation of affirmative defenses. In other words, even though Congr ess explicitly em powered federal courts to assess monetary penalties for a C AA 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 Pe tition 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 onl y to the extent relevant to the issue of affirmative defense provisions in SIPs. In s ection III.C of this SNPR, the EPA explains in detail why the court’s interpretation of rele vant CAA provisions indi cates that states do not have authority to create , and thus the EPA does not ha ve authority to approve, SIP provisions that include an affirmative defense that would operate to alter the jurisdiction of federal courts to assess penalties or othe r forms of relief authorized in sections 113 and***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 41 of 146 304. In section VII of this SNPR, the EPA expl ains how the decision affects the February 2013 proposal with respect to sp ecific 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 identi fied 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 comprehensiv e 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 concer ning affirmative defense provisions. IV. What is the EPA proposing through th is 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 provision s, not merely those provisions limited to malfunction events or to those for malfunc tion events that are sufficiently narrowly drawn to be consistent with the EPA’s pr ior 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 defe nse provisions in SIPs for excess emissions***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 42 of 146 during SSM events. 15 The Petitioner also asked the EPA: (i) to find that SIPs containing an affirmative defense to monetary penaltie s 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 secti on 110(k)(5) to require each su ch state to revise its SIP. 16 Alternatively, if the EPA denies these two re lated requests, the Pe titioner requested the EPA: (i) to require states w ith SIPs that contain such a ffirmative 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 pursua nt to CAA section 110(k)(5) to states with provi sions inconsistent with the EPA’s interpretation of the
CAA. 17 The EPA interpreted this latter request to refer to the specifi c SIP provisions that the Petitioner identified in a separate s ection of the Petition, titled, “Analysis of Individual States’ SSM Provi sions,” including specific existing affirmative defense provisions. The Petitioner requested that the EPA re scind its SSM Policy element interpreting the CAA to allow SIPs to include affirma tive defenses for violations due to excess emissions during any type of SSM events beca use 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 sc ope and availability of such relief, that the Petitioner claimed would bar th e approval of any t ype of affirmative defense provision in
SIPs.

15 Petition at 11. 16 Id. 17 Petition at 12.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 43 of 146 In the Petitioner’s view, the CAA “una mbiguously grants jurisdiction to the district courts to determine penalties that should be assessed in an enforcement action involving the violation of an emissions limit.” 18 The Petitioner first argued that in any judicial enforcement action in the district co urt, 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 ap propriate relief.” In addition, the Petitioner cited the provisions of CAA section 304(a), which specifically pert ain to citizen suit enforcement and which reiterate that the fe deral courts have jurisdiction to assess monetary penalties for violations as well as to impose other remedies. 19 The Petitioner reasoned that the EPA’s SSM Policy is theref ore fundamentally inc onsistent with the CAA because it purports to remove the discre tion and authority of the federal courts to assess monetary penalties for vi olations if a source is shie lded from mone tary penalties under an affirmative defense provision in the approved SIP. 20 The Petitioner 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’ discre tion—granted by Congress—to assess penalties for Clean Air Act violations.” 21 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 c onsider in assessing penalties. 22 That section provides that

18 Petition at 10. 19 Petition at 11. 20 Id

. 21 Id

. 22 Id

.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 44 of 146 either the Administrator or the court: ...shall take into consideration (in add ition 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 fu ll 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 pe nalties 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 pe nalties 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 to tally omits: (i) the size of the business; (ii) the economic impact of the penalty on the bus iness; (iii) the violat or’s full compliance history; (iv) the economic benefit of nonc ompliance; and (v) the seriousness of the violation. By specifying particular factors fo r 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 fo r violations. The Petit ioner 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 consider ed in awarding monetary penalties because “[p]reventing the district courts from c onsidering these statutory factors is not a permissible interpretation of the Clean Air Act.” 23 The Petitioner dr ew no distinction between affirmative defenses for unplanned events such as malfunctions and planned events such as startup and shutdown.

23 Id

.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 45 of 146 B. The EPA’s Proposed Revised Response As a preliminary matter, the EPA acknowle dges 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 defens e provisions in SIPs, so long as they meet certain requirements ( e.g. , that they only apply to m onetary penalties and not to injunctive relief). The EPA’s longstanding gui dance has also provided very specific recommendations to states concerning how to develop affirmative de fense 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 desi gned, 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 affi rmative defense provisions in SIPs or promulgation of such provisions in FIPs has been upheld by courts in several decisions. 24 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

24 See 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 inte rpretation 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 creati on of an affirmative defense applicable during malfunctions in a FIP).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 46 of 146 SIP submission were challenged by numerous pa rties. In 2012, the U.S. Court of Appeals for the 5th Circuit upheld EP A’s actions, including both the Agency’s approval and disapproval of the affirmative defense provisi ons applicable to th e respective types of

events. 25 In that litigation, the EPA defende d its approval and disapproval actions, including the filing of an opposition to a petition for certiorari filed by industry challengers concerning the disa pproval of the affirmative defense for planned events. Throughout the litigation over the Texas SIP re vision, the EPA reiterated what was at the time its view that appropriately drawn affi rmative defense provisions applicable to malfunctions can be consistent with CAA re quirements 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 twostep Chevron analysis to the EPA’s interpretation of section 113 in connection with both the approval of the affirmative defense provi sion applicable to “unplanned events” and the disapproval of the affirmative defense pr ovision applicable to “p lanned events.” With respect to both the approval and disappr oval, the court held that the Agency’s interpretation of the CAA at that time was a “permissible interpreta tion of section [113], warranting deference.” 26 Subsequent events have caus ed 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

25 Luminant Generation Co. v. EPA , 714 F.3d 841 (5th Cir. 2012), cert. denied , 134 S.Ct. 387 (2013). 26 See Luminant Generation Co. v. EPA , 714 F.3d 841, at 851 and 856 (5th Cir. 2012).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 47 of 146 came to a contrary conclusion with respect to the legal basis for an affirmative defense provision in the Agency’s own regulations. 27 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 interpre tation of the CAA when further consideration indicates to the Agency that its prior in terpretation of the statute is incorrect. 28 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 Polic y and to revise its February 2013 proposal notice with respect to affirmative defense pr ovisions in SIPs, the EPA will first explain why it believes that the reasoning of the cour t’s decision is more br oadly applicable and will then explain why it believes that the spec ific reasons given by the court for rejecting the EPA’s prior interpretation of the CAA would apply with equal weight to SIP provisions. The EPA believes that the reason ing 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 cour t 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 cour t based its decision upon the provisions of sections 113 and 304 that pertain to enfo rcement of CAA requirements more broadly,

27 See NRDC v. EPA , 749 F.3d 1055 (D.C. Cir. 2014). 28 See, e.g., White Stallion Energy Center, LLC v. EPA, 748 F.3d 1222 , 1235 (D.C. Cir. 2014) (citing Nat’l Cable & Te lecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) and FCC v. Fox Television Stat ions, Inc., 556 U.S. 502 (2009)).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 48 of 146 including to SIPs. Sections 113 and 304 pe rtain 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 sec tions 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 respec t to the application of its interpretation of the CAA to SIP provisions, let alone to sugge st that its interpre tation would not apply more broadly. The court was cl early cognizant that a similar legal issue had arisen in litigation in the U.S. Court of Appeals for the 5th Circuit concer ning the Texas SIP and merely acknowledged that fact and clearly st ated in this footnote: “[w]e do not here confront the question whether an affirmativ e defense may be appropriate in a State Implementation Plan.” 29 Given that the case before th e court did not pertain to SIP provisions and thus the legal validity of affirmative defens e provisions in a SIP did not need to be decided, the EPA be lieves 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 affirm ative 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 sec tions 113 and 304 does extend to SIP provisions. In the remainder of this section of the SNPR, we explain in greater detail

29 See NRDC v. EPA , 749 F.3d 1055, 1063 (D.C. Cir. 2014).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 49 of 146 why we now think the D.C. Circuit’s read ing 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 c ontext of citizen suit enforcement—which by definition is judicial rather than administrative enforcement—does not affect the relevance of the court’s reasoni ng 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 nona ttainment 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. Purs uant 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 fede ral court. Thus, the court’s logic in NRDC v. EPA would also apply to the provisi ons of the state’s SIP, and the jurisdiction of a court to impose penalties or other forms of relief fo r violations of SIP requirements under the CAA cannot be altered by an affirmative defe nse in a state’s SIP provision in the same way that it cannot be altered by su ch a provision in an EPA regulation. Just as the court’s decision is not lim ited in ways that would preclude it from applying to SIP provisions, th e EPA also believes that the logic of the decision would apply with equal weight to affirmative de fense provisions in SI Ps for a number of reasons. Most significan tly, the court rejected a series of arguments that the EPA made to support its legal authority under the CAA to cr eate 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 50 of 146 EPA to approve, affirmative defense provisi ons in SIPs applicable in judicial enforcement cases. The EPA has carefully ev aluated 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 Februa ry 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 cour ts 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 th e 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 act ion 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 th at section 304(a) create s a private right of action and that the courts al one are vested with authority to determine the scope of remedies in judicial enforcement, rath er than the administrative agency. The NRDC v.
EPA court treated this issue as a que stion that it could answer with a Chevron step 1 plain reading of the statute and evidently saw no ambiguity concerning whether the EPA has***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 51 of 146 authority to alter the rights of litigants to seek monetary penalties for violations or to alter the jurisdiction of the federal c ourts to assess such penalties. In retrospect and in light of the court’s decision, the EPA belie ves that this is the correc t 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 defens e provisions in SIPs that would have the effect of altering the ri ghts 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 stat utory requirement that penal ties be applied only when ‘appropriate.’” 30 The EPA had argued that CAA secti on 304(a) provides federal district courts with jurisdiction to “apply any appropria te civil penalties” a nd that such penalties would only be “appropriate” if the regulation being enfor ced specifically provided for such penalties in the first place. In other words, the EPA argued, if the regulation contained an affirmative de fense that precluded moneta ry penalties under certain circumstances, then it would not be “appropria te” 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 whet her penalties are ‘appropriate’ is a job for the courts, not EPA.” 31 To the extent that a defendant in an enforcement case has a basis for arguing that monetary penalties s hould be reduced, the court stated that CAA section 113(e)(1) already provi des courts with factors that may be taken into consideration. The court emphasized that in judicial enforcement, the court decides

30 See NRDC v. EPA , 749 F.3d 1055, 1063 (D.C. Cir. 2014). 31 See NRDC v. EPA , 749 F.3d 1055, 1062 (D.C. Cir. 2014).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 52 of 146 whether or not to accept a defendant’s argumen ts concerning the assessment of penalties, not the EPA. In the February 2013 proposal not ice, the EPA relied on this same argument to support its position that affirmative defens e provisions in SIPs would not contradict CAA sections 113 and 304 and to justify its prop osed denial of the Petition with respect to affirmative defenses applicable to malfunctions events. 32 Given that the court has rejected this interpretation of the CAA fo r the EPA’s own regulations, the EPA believes that the same principle applies to states that seek to alter th e ability of federal courts to assess penalties for violations of CAA require ments in SIP provisions. If states have no authority to alter the jurisdiction of federa l courts to impose remedies for violations explicitly provided for in the CAA, then this affects the EPA’s aut hority 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 substantiv e requirements of the CAA. Approving an affirmative defense provi sion 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 prescr ibe such regulations as are necessary to carry out his functions under” the CAA. 33 In the February 2013 proposal notice, the EPA did not make this particular argument because it was not proposing EPA regulations to

32 See February 2013 proposal notice, 78 FR 12459 at 12472 (middle column). 33 See NRDC v. EPA , 749 F.3d 1055, 1063 (D.C. Cir. 2014).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 53 of 146 implement the CAA, rather it was proposing action on a petition for rulemaking that entails evaluating the EPA’s guidance to st ates in the SSM Policy concerning whether specific types of SIP provisions are consistent with CAA re quirements. Nevertheless, the EPA notes, the court rejected the notion that the EPA has any authority to promulgate regulations that would alter oreliminate the jurisdiction of federal courts to assess penalties when Congress has alr eady directly spoken to that issue. As the court expressed it, “EPA cannot rely on its gap-filling aut hority 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 exte nd to situations where the EPA is required to determine whether or not an affirmative defense provi sion is consistent w ith 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 enfo rcement 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 Po licy, or to approve a SIP submission that contains such SIP provisi ons, in a way that w ould likewise overwrite statutory provisions where C ongress 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. 34 Because the statute is silent with respect to

34 Id

.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 54 of 146 whether or not such provisions are permi ssible, the EPA inferred that the EPA had authority to create them as a componen t 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 suppor t its position that states coul d elect to have affirmative defense provisions for malfunctions in SIPs and in support of its pr oposed denial of the Petition on this point. 35 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 incons istent with the prin ciples 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) gi ving jurisdiction to federal courts to assess penalties for violations of CAA requirement s. The EPA now believes that this same reasoning applies to affirm ative 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 pr actical reality that control technology can fail unavoidably.” 36 This tension is an important point that the EPA has long noted as a basis for its interpretation of the CAA to a llow affirmative defense provisions, not only in its own regulations such as the Portland cement NESHAP, but also in the SSM Policy

35 See February 2013 proposal notice, 78 FR 12459 at 12470 (middle column); 12470 (right column); 12472 (right column). 36 See NRDC v. EPA , 749 F.3d 1055, 1063 (D.C. Cir. 2014).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 55 of 146 providing guidance to states fo r SIP provisions. In the Febr uary 2013 proposal notice, the EPA used this same argument and the same case law support to just ify its position that states could elect to have affirmative defens e provisions for malfunctions in SIPs and for its proposed denial of th e Petition on this point. 37 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 gi ve the EPA legal authority to create an affirmative defense. 38 The court thus summarily rejected the EPA’s argument that the need to “balance” the objectives of the C AA 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 a ssess 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 resu lt would be that sour ces 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 fo r 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 moneta ry penalties through

37 See February 2013 proposal notice, 78 FR 12459 at 12470 (left column); 12472 (right column); 12487 (left column). 38 The EPA interprets the court’s opinion to mean that a defendant in an enforcement proceeding might want to make this argumen t 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 particip ate as an intervenor or an amicus in a citizen suit enforcement matter if it wants to take a position on what monetary penalties are “appropriate” for a given violation.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 56 of 146 the statutory factors provided for considerati on 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 oreliminate 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 SI Ps. Given the court’s reasoning that sections 113 a nd 304 preclude the EPA from havi ng authority to create an affirmative defense applicable in private civ il suits in federal regulations because such a provision would impinge upon jurisdiction explic itly provided by Congress to the courts, the EPA believes that its past guidance to st ates 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 enfor cement proceedings for violations of CAA requirements, then it follows that states likewise cannot alter th e 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 th e same logic applies to any SIP provision that purports to eliminate, restrict or otherw ise alter the jurisdiction of federal courts to impose any of the expressly listed forms of relief in section 113(b), not merely those***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 57 of 146 applicable to monetary penalties. 39 Pursuant to the require ments 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 re quirements 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 th at the EPA rescind its SSM Policy element interpreting the CAA to allow affirmative defe nse 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 s ources such as a startup or shutdown. V. Revised SSM Policy on Affirmat ive Defense Provisions in SIPs In the February 2013 proposal notice, the EPA evaluated the issues raised by the Petitioner concerning the treatment of ex cess emissions during SSM events in SIP provisions. As part of responding to the Pe tition, the EPA proposed to clarify, reiterate and revise its longstanding SSM Policy. In this SNPR, the EPA is now proposing to

39 The EPA notes that CAA section 113(b) expr essly gives federal co urts jurisdiction “to restrain such violati on, 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 appr opriate 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 st andard or limitation, or such an order . . . and to apply any appropriate civil penalties. ” In the latter section, the term “emission standard or limitation” is defi ned broadly in section 304(f).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 58 of 146 revise further its interpretati on of the CAA with respect to affirmative defense provisions applicable to excess emi ssions 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 co ncerning the issue of affirmative defense provisions. In particular, the EPA is proposi ng 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 elec t 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 not ice, 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 fo r startup and shutdown events. More recent events indicateThe 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 th e 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 st ates 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 59 of 146 penalties for violations of EPA regulations promulgated under sec tion 112, because that was what was specifically at issue in the cas e before it, the EPA sees no reason why the same logic would not apply to any SIP provision that purporte d to alter or eliminate the jurisdiction of the federal courts to exercise their authority in the ev ent of violations as provided in CAA section 113(b), including the authority to rest rain violations, to require compliance, to assess civil penalties, to collect any fees a nd to award any other appropriate relief. In other words, affirmativ e defense provisions in SIPs that purport to alter or eliminate the broad au thority of federal courts to award any of these types of relief in the event of an enforcement acti on, whether pursuant to section 113 or section 304, are likewise contrary to the enforcemen t structure of the C AA. Accordingly, the EPA proposes to revise its SSM Policy to interpret the CAA to preclude affirmative defense provisions in SIPs. When fina lized, this rulemaking will embody the EPA’s revised SSM Policy, and it will provide the most up-to-date and comprehensive EPA guidance on 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 C AA 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 comm ent on these topics. The EPA is revising one aspect of the February 2013 proposal notice wi th respect to the basis for the proposed SIP calls for affirmative defense provisions. In the February 2013 proposal notice, the EPA***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 60 of 146 explained its basis for concl uding that different types of deficient SIP provisions identified in the Petition are substantially inad equate to comply with requirements of the CAA and thus warrant a SIP ca ll for a state to revise or to eliminate the impermissible provision. With respect to affirmative defe nse provisions, the EPA articulated its evaluation of why inadequate affirmative de fense 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 enforcemen t structure provided in CAA sections 113 and 304. 40 The rationale provided by the EPA in the February 2013 proposal notice was obviously based upon the Agency’s interpretatio n 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 authorit y to alter the rights of litigants to seek monetary penalties for violations of CAA re quirements and no authority to alter the broad jurisdiction of federal courts to assess su ch penalties for such violations under CAA sections 113 and 304. The EPA believes that th e logic of the court’s decision extends to the jurisdiction of the federal courts to impose other remedi es 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 co nsistent with the enforcement structure created by Congress in the CAA.

40 See February 2013 proposal notice, 78 FR 12459 at 12487-88.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 61 of 146 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 de monstrated causal connection to a given environmental impact (or undermine a specific enforcement action); the court decided the question based solely on the fundamental le gal requirements of the CAA, which apply equally to SIPs. The court viewed the st atutory requirements for enforcement of violations as a legal bar to the EPA’s crea ting an affirmative defense. The EPA believes that this decision supports the EPA’s view that an affirmativ e defense provision in a SIP that would operate to interfere with the rights of litigants to seek pe nalties 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 vi olations, is a substant ial inadequacy because such provision would violate fundamental lega l 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 pr ovision is substantially inadequate to meet CAA requirements, and there is no need to de monstrate 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 particul ar day, or the undermining of effective enforcement for a particular violation by a part icular 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 C AA requirements such as demonstrating attainment. Accordingly, the EPA has the aut hority and the responsibility to assure that***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 62 of 146 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 iden tified independently by the EPA? A. Overview of the EPA’s Eval uation of Specific Affirmati ve 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 c onsistent with the EPA’s own interpretation of the CAA as expressed in the 1999 SSM Guidance. In gene ral, the provisions identified by the Petitioner are structured as affirmative defens e provisions, regardless of whether they use the term “affirmative defense” and regardle ss of whether the EPA ever specifically evaluated the provisions with re spect 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 co ncern that all of th e 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, th e EPA explained thatit 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 inte rpretation of the CAA as set forth in the***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 63 of 146 1999 SSM Guidance and as it was revising its interpretation in the February 2013 proposal notice. The February 2013 proposal no tice thus contained the EPA’s proposal to grant or to deny the Petition based on the EPA’ s evaluation as to whet her the provision at issue provides adequate criteria to pr ovide only a narrow affirmative defense for violations due to malfunctions for sources unde r certain circumstances consistent with the overarching CAA objectives, such as attaini ng 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 consistentwith the requirements of the CAA. 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 r easoning of the court applies equally to SIP provisions, the EPA is proposing to grant the Petition with resp ect to each of these provisions. Thus, the EPA is proposing to find that these provision s are substantially inadequate because they are not consistent with fundamental lega l 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 incl uding one or more affirmativ e defense provisions in the SIPs of the following four states: (1) New Mexico (Albuquerque-Ber nalillo County); (2) Texas; (3) California (Eastern Kern Air Pollu tion Control District , Imperial County Air***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 64 of 146 Pollution Control District and San Joaquin Vall ey Air Pollution Control District); and (4) Washington (Energy Facility Site Evaluati on Council and Southwest Clean Air Agency). The EPA is including these additional affirm ative 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 rele vant 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 be ing 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 revi se 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 fundame ntal legal requirements of the CAA and the EPA is proposing to issue a SIP call with respec t 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 (D.C.) SIP as being inconsistent with the CAA and the EPA’s SSM Policy. 41 Among the other alleged SIP deficiencies, the Petitioner objecte d to the provision in the D.C. SIP that provides an affirmative defe nse for violations of visible emission limitations during “unavoidable malfunction” (D.C. Mun. Regs. tit. 20 § 606.4). The Petitioner objected to

41 Petition at 29-30.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 65 of 146 this provision because the elements of the de fense 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 defe nse 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 becau se 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 ta ken all appropriate steps to minimize excess emissions, the provision also fails to be su fficiently narrowly drawn to justify shielding from monetary penalties for violations. Thus, the EPA prev iously reasoned that this provision is not appropriate as an affirmative defense provision because it is inconsistent with fundamental require ments of the CAA. c. The EPA’s Revised Proposal In this SNPR, the EPA is proposing to revise the basis for the finding of***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 66 of 146 substantial inadequacy and the SIP call for D.C. Mun. Regs. tit. 20 § 606.4. The EPA is proposing to revise its interp retation of the CAA with resp ect 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 a ssure 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e 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 pr ovision operates to li mit the jurisdiction of the federal court in an enforcement action and to preclude both liability and any form of judicial relief contemplat ed in CAA sections 113 and 304. Thus, the EPA believes that this provision interf eres with the intended enforcemen t structure of the CAA, through which parties may seek to bring enforcement act ions for violations of SIP emission limits and courts may exercise their jurisdiction to de termine 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 67 of 146 provision and is not revising its February 2013 proposal with resp ect to the proposed action on the other four provisi ons in the D.C. SIP that ar e at issue in the Petition. 2. Virginia a. Petitioner’s Analysis The Petitioner objected to a generally applic able provision in the Virginia SIP that allows for discretionary exemptions during pe riods of malfunction (9 Va. Admin. Code § 5-20-180(G)). 42 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 disc retionary exemption for exce ss emissions during malfunction because the provision gives the state the author ity to determine whether a violation “shall be judged to have taken place”; and (iii) th at 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, includi ng the fact that it is not sufficient as an affirmative defense provision to meet CAA re quirements. 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 pr ovision is not a permissible affirmative defense provision consistent with the requi rements of the CAA as interpreted in the

42 Petition at 70-71.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 68 of 146 EPA’s recommendations in the EPA’s SSM Poli cy. 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 pr ovision is inconsistentwith the requirements of CAA sections 113 and 304. The EPA also argued that by not including sufficient criteria to assure that sources seeking to ra ise the affirmative defense have in fact been properly designed, maintained and operated, a nd to assure that sources have taken all appropriate steps to minimize excess emissions , the provision fails to be sufficiently narrowly drawn to justify shie lding from monetary penaltie s for violations. Thus, the EPA previously proposed to find that this pr ovision 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 fo r 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 a ssessed whether such provisions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to a ssure 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e citizen suit provision***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 69 of 146 of section 304. The EPA interprets the prov ision of 9 Va. Admin. Code § 5-20-180(G) to create an impermissible affirmative defens e 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 fo rm of judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA believes th at this provision in terferes with the intended enforcement structure of the CAA, through which parties may seek to bring enforcement actions for violations of SIP em ission 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 re spect to the other separate bases for the finding of subs tantial inadequacy of this provision. 3. West Virginia a. The EPA’s Evaluation In addition to evaluating specific affirma tive 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 in terpretation 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 st ate of West Virginia in W. Va. Code Section 45-2-9.4. This provision provides an affirmative defense avai lable to sources for excess emissions that occur during malfunctions. The EPA notes that it has already proposed to make a finding***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 70 of 146 of substantial inadequacy and to issue a SIP call for anothe r 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 w ith 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 affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe 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 th is 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 offici al, 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 reco mmendations for such provisions in the 1999 SSM Guidance. Regardless of that fact, the EPA believes that this provision impermissibly purports to alter or eliminate th e jurisdiction of federal courts to assess***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 71 of 146 penalties or to impose other forms of relief for violations of SIP emission limits. Under this provision, if the source is able to establis h 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 th at this affirmative defense provision is inconsistent with the fundamental enforcem ent structure of the CAA and the EPA thus believes that the provision is not consistentwith CAA requirements for SIP provisions. b. The EPA’s Proposal In this SNPR, the EPA is proposing to ma ke a finding of substantial inadequacy and to issue a SIP call for the affirmativ e 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 interp retation of the CAA with resp ect to affirmative defense provisions in SIPs. Previously the EPA a ssessed whether such provisions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to a ssure 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 72 of 146 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 act ions for violations of SIP emission limits and courts may exercise their jurisdiction to de termine 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 resp ect 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 star tup, shutdown or malfunctions under certain circumstances (Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7)). 43 The Petitioner objected to this provision on multiple grounds, including: (i) that it provides an exemption from the otherwise applicable SIP emission limitati ons by providing that the excess emissions “shall be allowed” subject to certain conditions; (ii) that although the prov ision provides some “substantive criteria,” the provision doe s not meet the criteria the EPA recommends for an affirmative defense provision consistent with the requirements of the CAA in the

43 Petition at 32.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 73 of 146 EPA’s 1999 SSM Guidance; and (iii) that the pr ovision is not a permissible “enforcement discretion” provision applicable only to state personnel, beca use it “is susceptible to interpretation as an enforcement exempti on, 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 fo r several reasons, incl uding 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 nota permissible affirmative defense provision consistent with the requirements of the CAA as interp reted in the EPA’s recommendations in the EPA’s SSM Policy. By purporting to create a ba r to enforcement that applies not only to monetary penalties but also to injunctive relief, the EPA r easoned 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 prope rly designed, maintained and operated, and to assure that sources have taken all appropr iate steps to minimize excess emissions, the provision also fails to be sufficiently narrowl y drawn to justify shie lding from monetary penalties for violations. Moreover, the EPA previously reasoned that Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) was deficient becau se 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. T hus, the EPA previously proposed to find***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 74 of 146 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 fo r Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7). The EPA is proposing to revise its interpreta tion of the CAA with respect to affirmative defense provisions in SIPs. Previously th e 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e citizen suit provision of section 304. The EPA interprets the pr ovision of Ga. Comp. R. & Regs. 391-3-1- .02(2)(a)(7) to create an impermissible affirm ative defense for violations of SIP emission limits. The provision operates to limit the jurisdiction of the fe deral court in an enforcement action and to preclude both liab ility and any form of judicial relief contemplated in CAA sections 113 and 304. T hus, 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 vi olations of SIP emission limits and courts may exercise their jurisdicti on to determine what, if any, relief is appropriate.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 75 of 146 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. 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 Fe bruary 2013 proposal with respect to the other separate bases for the finding of subs tantial inadequacy of this provision. 2. Mississippi a. Petitioner’s Analysis The Petitioner objected to three provisi ons in the Mississippi SIP as being inconsistent with the CAA and the EPA’s SSM Policy. 44 Among the other alleged SIP deficiencies, the Petitioner objected to two generally applicable provisions in the Mississippi SIP that allow for affirmative defens es 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). 45 First, the Petitioner objected to both of these provision s based on its assertion that the CAA allows no affirmative defense provisions in SIPs. S econd, the Petitioner asse rted that even if affirmative defense provisions were permissi ble under the CAA, the affirmative defenses in these provisions “fall far short of the EPA policy.” Speci fically, the Petitioner argued that the EPA’s guidance for affirmative de fenses recommends that they “are not appropriate where a single sour ce or a small group of sources has the poten tial to cause an exceedance of the NAAQS or PSD increments,” 46 and Mississippi’s provisions do not

44 Petition at 29-30. 45 Petition at 47-49. 46 Petition at 48.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 76 of 146 contain a restriction to address this poin t. 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 criteri a “that EPA requires for acceptable defense provisions.” 47 Finally, the Petitioner argued that the CAA and the EPA’s SSM Policy interpreting it do not allow affirmative defens es 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 pur porting 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 th e requirements of CAA sections 113 and 304. The EPA also argued that by not including su fficient criteria to a ssure 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 penaltie s for violations durin g malfunctions. With respect to the comparable affirmative defens e for maintenance in 11-1-2 Miss. Code R. § 10.3, the EPA reiterated its long held position th at 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 expect ed to comply with the applicable emission limitations. Thus, the EP A previously proposed to find that 11-1-2

47 Petition at 47-48.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 77 of 146 Miss. Code R. § 10.1 and 11-1-2 Miss. Code R. § 10.3 are not appropriate as affirmative defense provisions because they are inconsis tent 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 interpreta tion 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 c onstructed in a way th at would purport to preclude federal court jurisdic tion under section 113 to asse ss 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 civ il 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 provisi ons 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 enfo rcement action and to preclude both liability and any form of judicial relief contempl ated in CAA sections 113 and 304. Thus, the EPA believes that these provisi ons interfere with the intended enforcement structure of the CAA, through which parties may seek to br ing enforcement actions for violations of***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 78 of 146 SIP emission limits and courts may exercise th eir jurisdiction to de termine 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 s ubstantially 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 addr essing 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 propos al 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 affirma tive 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 in terpretation 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 st ate of South Carolina in S.C. Code Ann. Regs. 62.1, Section II(G)(6). This provision provides that perm its for certain sources may contain an affirmative defense for excess emissions thatoccur 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 79 of 146 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 affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe 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 th is 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 occurrenc e 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 sour ce 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 pr ior 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 impermi ssibly purports to alter or eliminate the***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 80 of 146 jurisdiction of federal courts to assess penalties or to impose other forms of relief for violations of federally enforceable SIP or pe rmit emission limits. Under this provision, if the source is able to establish that it met each of the specified criter ia, then the provision purports to bar any relief for those violati ons. Accordingly, the EPA believes that this affirmative defense provision is inconsistentwith 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 ma ke a finding of substantial inadequacy and to issue a SIP call for the affirmativ e defense provisions a pplicable 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 interpreta tion of the CAA with respect to affirmative defense provisions in SIPs. Previously th e 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e citizen suit provision of section 304. The EPA interprets S.C

. Code Ann. Regs. 62.1, Section II(G)(6) to provide an***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 81 of 146 affirmative defense that operates to limit th e 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 So uth 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. Admi n. 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. 48 The Petitioner objected to these provisions on multiple grounds, including: (i) that the

48 Petition at 33-36.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 82 of 146 provisions invite sources to request, during the permitting process, advance permission to continue to operate during a malfuncti on or breakdown and to request advance permission to “violate” otherwise applicable emission limitations during startup; (ii) that the provisions state that, on ce granted, the advance permissi on 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 Peti tioner argued that the latter provision is not clear rega rding whether the defense is to be evaluated “in a judicial or administrative proceeding or whether th e Agency determines its availability.” Allowing defenses to be raised in these undefined contexts, the Petitioner argued, is “inconsistent with the enforcement struct ure of the Clean Air Act.” The Petitioner asserted that “if . . . the ‘prima facie de fense’ is anything short of the ‘affirmative defense,” as contemplated in the 1999 SSM Gu idance, 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 provisi ons do not provide a permissible affirmative defense provision cons istent with the requirements of the CAA as interpreted in the EPA’s recommen dations in the EPA’s SSM Policy.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 83 of 146 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 re quirements of CAA sections 113 and 304; (ii) the defense applies to violations that occurred during startup periods, which is inconsistent with CAA sections 113 and 304; ( iii) the provisions shif t the burden of proof to the enforcing party; and (iv) the provisions do not include sufficien t criteria to assure that sources seeking to raise the affirmative de fense 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. Ad min. 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 fi nd 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 re spect to affirmative defense provisions in SIPs. Previously the EPA assessed whether such provisions met cer tain requirements, such as being limited to moneta ry penalties rather than inj unctive relief and containing sufficiently robust criteria to assure that the defense applie d only in appropriately narrow***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 84 of 146 circumstances. Now, the Agency must eval uate such provisions to determine whether they are constructed in a way that would pur port to preclude fede ral court jurisdiction under section 113 to assess civil penalties or ot her forms of relief for violations of SIP emission limits, to prevent courts from c onsidering the statutory factors for the assessment of civil penalties unde r section 113 or to interfere w ith the rights of litigants to pursue enforcement consistent with thei r rights under the citi zen 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 toge ther 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 viola tions of SIP emission limits. These provisions would operate together to limit the jurisdicti on of the federal court in an enforcement action and to preclude both liability and any fo rm of judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA believes th at these provisions interfere with the intended enforcement structure of the CAA, through which parties may seek to bring enforcement actions for violations of SIP em ission 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 th e 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 a ffirmative defense and is not revising its February 2013 proposal notice with respect to the other separate bases for the finding of substantial inadequ acy for these provisions.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 85 of 146 2. Indiana a. Petitioner’s Analysis The Petitioner objected to a generally app licable provision in the Indiana SIP that allows for discretionary exemptions duri ng malfunctions (326 Ind. Admin. Code 1-6- 4(a)). 49 The Petitioner objected to this provision on multiple grounds, including: (i) that it provides an exemption from the otherwise applic able 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 th at a number of conditions are met, but it does not specify to whom or in wh at forum such demonstration must be made; (iii) that if the foregoing dem onstration 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 violati on 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 c ould be interpreted as providing an affirmative defense, but one that is inconsistent with the requiremen ts 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 EP A 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

49 Petition at 36-37.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 86 of 146 CAA. By purporting to create a bar to enfor cement that applies not just to monetary penalties but also to injunc tive relief, and by including crite ria inconsistent with those recommended by the EPA for affirmative defense provisions, this provision is inconsistent with the requirements of C AA sections 113 and 304. For these reasons, the EPA previously proposed to find that 326 I nd. Admin. Code 1-6-4(a) is substantially inadequate to meet CAA requirements and pr oposed 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 fo r 326 Ind. Admin. Code 1-6-4(a). The EPA is proposing to revise its interp retation of the CAA with resp ect to affirmative defense provisions in SIPs. Previously the EPA a ssessed whether such provisions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to a ssure 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e 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 cr eates an impermissible affirmative defense***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 87 of 146 for violations of SIP emission limits. The provi sion 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 contemplat ed in CAA sections 113 and 304. Thus, the EPA believes that this provision interf eres with the intended enforcemen t structure of the CAA, through which parties may seek to bring enforcement act ions for violations of SIP emission limits and courts may exercise their jurisdiction to de termine 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 pr oposal notice with respect to the other separate bases for the finding of substantial in adequacy for the provision. 3. Michigan a. Petitioner’s Analysis The Petitioner objected to a generally app licable provision in Michigan’s SIP that provides for an affirmative defense to moneta ry penalties for violations of otherwise applicable SIP emission limitations during periods of startup and shutdown (Mich. Admin. Code r. 336.1916). 50 The Petitioner objected to this provision on multiple grounds, including: (i) that one of the criteria in the affi rmative defense provision, Mich. Admin. Code r. 336.1916, makes the defense ava ilable 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 a pplicable prevention of significa nt deterioration increment”

50 Petition at 44-46.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 88 of 146 thereby applying to sources with the “poten tial” to cause violations of the NAAQS contrary to the recommendations of EP A’s 1999 SSM Guidance; and (ii) that the affirmative defense provision is available for violations of “an applicable emission limitation,” which Petitioner ar gued could be construed by a court to include “limits derived from federally promulgated technol ogy based standards, such as NSPSs and NESHAPs,” contrary to EPA’s interpretati on 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 limitati ons during startup and shutdown events. The EPA noted at that time that an affirmative de fense for excess emissions that occur during planned events such as startup and shutdow n 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 Fe bruary 2013 proposal notice, the EPA proposed to revise its SSM Policy to refl ect this interpretation of the CAA, and to update the recommendations it previously made concerning affirmative defense provisions applicable to star tup 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 89 of 146 In this SNPR, the EPA is proposing to revise the basis for the finding of substantial inadequacy and the SIP call fo r Mich. Admin. Code r. 336.1916. The EPA is proposing to revise its interp retation of the CAA with resp ect to affirmative defense provisions in SIPs. Previously the EPA a ssessed whether such provisions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to a ssure 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e 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 a ffirmative 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 90 of 146 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 resp ect to this provision. E. Affected States and Local Ju risdictions 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. 51 One of these provisions, Reg. 19.602, provides an “affirmative defense” applicable to violati ons by sources in certain circumstances. The Petitioner objected to Reg. 19.602 because it pr ovides a “complete affirmative defense” for excess emissions that occur during emer gency conditions. The Petitioner argued that this provision, which the state may have mode led 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 vi ew that Reg. 19.602 is an impermissible affirmative defense provision because it does no t 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

51 Petition at 24. The Petitioner cites to 014-01-1 Ark. Code R. §§ 19.1004(H) and 19.602. The EPA interprets these citations as references to Reg. 19.1004(H) and Reg. 19.602 of the Arkansas Pollution Cont rol & Ecology Commission (APC&EC), Regulation No. 19 – Regulations of the Ar kansas 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 91 of 146 those that are provided in unde rlying federal technology-base d 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 issu e 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 fo r 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 prov isions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to assure that the defense applie d only in appropriately narrow circumstances. Now, the Agency must eval uate such provisions to determine whether they are constructed in a way that would pur port to preclude fede ral court jurisdiction under section 113 to assess civil penalties or ot her forms of relief for violations of SIP emission limits, to prevent courts from c onsidering the statutory factors for the assessment of civil penalties unde r section 113 or to interfere w ith the rights of litigants to pursue enforcement consistent with thei r rights under the citi zen 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 judi cial relief contemplated in CAA sections 113 and 304. Thus, the EPA believes that this provision interferes with the intended enforcement structure of***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 92 of 146 the CAA, through which parties may seek to br ing enforcement actions for violations of SIP emission limits and courts may exercise th eir jurisdiction to de termine what, if any, relief is appropriate. For these reasons, the EPA is propos ing to find Reg. 19.602 substantially inadequate to meet CAA requirements and th e EPA is thus proposing to issue a SIP call with respect to this provision. The EPA notes th at 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 pr oposal 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). 52 The Petitioner objected to the incl usion of these provisions in the SIP based on its view that affirmative defe nse provisions are always inconsistent with CAA requirements. The Petitioner also argued th at each of these affirmative defenses is generally available to all sources, whic h is in contravention of the EPA’s recommendation in the SSM Policy that affirm ative defenses should not be available to “a single source or groups of sources that has the potential to cause an exceedance of the

52 Petition at 54-57. The EPA interprets the Pe titioner’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) (hereina fter referred to as 20.2.7.111 NMAC, 20.2.7.112 NMAC and 20.2.7.113 NMAC).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 93 of 146 NAAQS.” Finally, the Petitioner argued that th e affirmative defense provision applicable to emergency events is impermissible becau se 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 de fense for excess emissions that occur during planned events such as startup and shut down 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 Fe bruary 2013 proposal notice, the EPA proposed to revise its SSM Policy to refl ect this interpretation of the CAA, and to update the recommendations it previously made concerning affirmative defense provisions applicable to st artup and shutdown events in the 1999 SSM Guidance. The EPA also proposed to grant the Petiti on with respect to 20.2.7.111 NMAC, which includes an affirmative defense appli cable during malfunctio n events. The EPA previously reasoned that this provision is inconsistent with the CAA because it neither limits the defense to only those sources th at 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 94 of 146 monetary penalties, it establishes criteria th at are inconsistent with those in the EPA’s SSM Policy, and it can be read to create diffe rent or additional defe nses from those that are provided in underlying federal technol ogy-based emission limitations. Thus, the EPA previously proposed to find that all three of thes e provisions are inc onsistent 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 th e affirmative defense provisions applicable to excess emissions that occur during ma lfunctions (20.2.7.111 NMAC), during startup and shutdown (20.2.7.112 NMAC), and dur ing emergencies 20.2.7.113 NMAC). The EPA is proposing to revise its interpretati on of the CAA with re spect to affirmative defense provisions in SIPs. Previously th e 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e citizen suit provision of section 304. The EPA interprets 20.2.7.111 NMAC and 20.2.7.112 NMAC to provide***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 95 of 146 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 jurisdic tion 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 vi olations of SIP emission limits and courts may exercise their jurisdicti on 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 inade quate to meet CA A 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 affirma tive 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 in terpretation of CAA requirements for such provisions in SIPs. As part of its review, th e EPA has identified three affirmative defense provisions in the SIP for the state of Ne w Mexico that apply in the AlbuquerqueBernalillo County area. These provisions pr ovide affirmative defenses available to sources for excess emissions that oc cur 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 96 of 146 affirmative defense provisions in 2010, after as certaining that they we re 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. 53 In light of the court’s decision in NRDC v. EPA , the EPA is proposing to revise its SSM Policy concerning the issue of affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe 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 th is 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 impermi ssibly purport to alter or eliminate the jurisdiction of federal courts to assess penalties for vi olations of SIP emission limits. In the case of the affirmative defenses applic able to malfunctions and to startup and

53 See , “Approval and Promulgation of Implem entation Plans; Albuquerque-Bernalillo County, NM; Excess Emissions,” 75 FR 5698 (Feb. 4, 2010).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 97 of 146 shutdown, the provisions set forth the elements of an affirmative defense to be asserted by sources in the event of viol ations during such events. In the case of the affirmative defense applicable to emergencies, the provisi on sets forth the elements of an affirmative defense to be asserted in the event of viol ations 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 vi olations (and in the case of the affirmative defense for emergencies could be construe d to bar other forms of relief as well). Accordingly, the EPA believes that each of these affirmative defense provisions is inconsistent with the fundamental enforcem ent structure of the CAA and the EPA thus believes that these provisi ons are not consistent with CAA requirements for SIP provisions. b. The EPA’s Proposal In this SNPR, the EPA is proposing to ma ke a finding of substantial inadequacy and to issue a SIP call for the affirmativ e defense provisions a pplicable to excess emissions that occur duri ng malfunctions (20.11.49.16.A NM AC), 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 interpretati on of the CAA with re spect to affirmative defense provisions in SIPs. Previously th e 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 98 of 146 court jurisdiction under section 113 to assess ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e 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. T hus, the EPA believes that each of these provisions interferes with the intended enfo rcement 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 dete rmine what, if any, reli ef 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 substant ially 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 re moval 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, and 20.11.49.15.B (15) (concerning reporti ng by a source of intent to assert an affirmative defense for a viol ation), a portion of 20.11.49.6 NMAC (concerning the objective of establishing affirma tive defense provisi ons) and 20.11.49.18 NMAC***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 99 of 146 (concerning actions where a determin ation has been made under 20.11.49.16

. E NMAC) superfluous and no longer opera tive, and the EPA thus reco mmends that these provisions be removed as well.
4. Texas a. The EPA’s Evaluation In addition to evaluating specific affirma tive 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 in terpretation of CAA requirements for such provisions in SIPs. As part of its review, th e EPA has identified four affirmative defense provisions in the SIP for the state of Te xas. 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 wi th respect to opac ity limits (30 TAC 101.222(e)). 54 The EPA acknowledges that it exp licitly approved these affirmative defense provisions in 2010, afte r ascertaining that they were consistent with the Agency’s interpretation of the CAA and its recomme ndations 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 disa pproval of related pr ovisions relevant to affirmative defenses for planned events) in li tigation in the U.S. Court of Appeals for the 5th Circuit.

54 The EPA notes that “upsets” and “unplanne d 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).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 100 of 146 In light of the court’s decision in NRDC v. EPA , the EPA is proposing to revise its SSM Policy concerning the issue of affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe 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 th is 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 impe rmissibly purport to alter or eliminate the jurisdiction of federal courts to assess penalties for vi olations 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 defens e 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 th e 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 101 of 146 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 ma ke a finding of substantial inadequacy and to issue a SIP call for the affirmativ e defense provisions a pplicable to excess emissions that occur during upsets (30 TAC 101.222(b)), unplanned events (30 TAC 101.222(c)), upsets with respec t to opacity limits (30 TA C 101.222(d)), and unplanned events with respect to op acity limits (30 TAC 101.222(e)). The EPA is proposing to revise its interpretation of the CAA with re spect to affirmative defense provisions in SIPs. Previously the EPA assessed whether such provisions met cer tain requirements, such as being limited to moneta ry penalties rather than inj unctive relief and containing sufficiently robust criteria to assure that the defense applie d only in appropriately narrow circumstances. Now, the Agency must eval uate such provisions to determine whether they are constructed in a way that would pur port to preclude fede ral court jurisdiction under section 113 to assess civil penalties or ot her forms of relief for violations of SIP emission limits, to prevent courts from c onsidering the statutory factors for the assessment of civil penalties unde r section 113 or to interfere w ith the rights of litigants to pursue enforcement consistent with thei r rights under the citi zen 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 enfor cement action and to limit the authority of the***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 102 of 146 court to impose monetary penalties as c ontemplated 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 consis tent 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 propos ing to find 30 TA C 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e) substantiall y 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 th ese 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 s in EPA Region VIII
1. : Colorado
a1 . Petitioner’s Analysis The Petitioner objected to two affirmativ e defense provisions in the Colorado SIP that provide for affirmative de fenses 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)). 55 The Petitioner acknowledged that this state has correctly revised

55 Petition at 25-27.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 103 of 146 its SIP in important ways in or der to be consistent with C AA requirements, as interpreted in the EPA’s SSM Policy, including providi ng affirmative defense provisions that are limited to monetary penalties, that do not a pply in actions to enforce federal standards such as NSPS or NESHAP approved into the SI P, and that meet “almost word for word” the recommendations of the 1999 SSM Guidan ce. 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 provisi ons in SIPs. Second, the Petitioner asserted that even if affirmative defense provisions were permissible under the CAA, the state had properly followed EPA guidance in the affi rmative 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 defens es recommended that they “are not appropriate where a single source or a small group of sources has th e potential to cause an exceedance of the NAAQS or PSD increments.” 56 Instead, the state’s affirm ative defense for malfunction events is potentially available to any source, if it can esta blish that the excess emissions during the event did not result in exceedances of ambient air quality standards that could be attributed to the source. 57 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

56 Id. at 25. 57 See, 5 Colo. Code Regs § 1001-2(II.E.1.j).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 104 of 146 Petitioner also argued that in cluding 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.” b2 . 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) be cause it provides an affirmative defense for violations due to excess emissions appli cable 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 ev ents beyond the control of the source, i.e., during malfunctions. In the February 2013 proposal no tice, the EPA proposed to revise its SSM Policy to reflect this interpretation of th e CAA, and to update the recommendations it previously made concerning affirmative defe nse provisions applicab le 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 SI P 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 incl udes an affirmative defense applicable to malfunction events that is consistent with th e 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 105 of 146 exceedance of the NAAQS or PSD incremen ts. 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 applicat ion of an affirmative defense provision only to sources without the potential to cause NAAQS viola tions, 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. Acco rdingly, the EPA previously proposed to find that 5 Colo. Code Regs § 1001-2(II.E) is cons istent with CAA requirements and declined to make a finding of substantial inadequ acy with respect to this provision.
c3 . 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 th e affirmative defense provisions applicable to excess emissions that occur during start up 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 in adequate 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 provi sions in SIPs. Previously the EPA assessed whether such provisions met cer tain requirements, such as being limited to monetary penalties rather than injunctiv e relief and containing sufficien tly robust criteria to assure that the defense applied only in appropriately narrow circumstances. Now, the Agency***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 106 of 146 must evaluate such provisions to determine whether they are constructed in a way that would purport to preclude federal court ju risdiction under secti on 113 to assess civil penalties or other forms of relief for violati ons of SIP emission limits, to prevent courts from considering the statutory factors for th e assessment of civil penalties under section 113 or to interfere with the righ ts of litigants to pursue enfo rcement 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 th at operate to limit the jurisdiction of the federal court in an enforcement action to assess monetary pe nalties under certain circumstances as contemplated in CAA s ections 113 and 304. Thus, the EPA believes that these provisions interfere with the in tended enforcement structure of the CAA, through which parties may seek to bring en forcement actions for violations of SIP emission limits and courts may exercise their jurisdiction to determine what, if any, relief is appropriate.

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) s ubstantially 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 Ju risdictions in EPA Region IX 1. Arizona***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 107 of 146 a. Petitioner’s Analysis The Petitioner objected to two provisi ons in the Arizona Department of Enviro n menta l 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 shut down (AAC Section R18-2- 310(C)). 58 First, the Petitioner asserted that all affirmative defens es for excess emissions are inconsistent with the CAA and should be removed from the Arizona SIP. Additionally, quoting from the EPA’s r ecommendation in the SSM Policy that such affirmative defenses should not be av ailable to “a single s ource or small group of sources [that] has the potential to caus e an exceedance of the NAAQS or PSD increments,” the Petitioner contended that “sources with the power to cause an exceedance should be strictly controlled at all times, not just when they actually cause an exceedance.” 59 Although acknowledging that R18-2-310 contains some limitations to address this issue, the Petitioner argued th at 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 en tirely disallowing affirmative defenses for these types of sources would. Accordingly, th e Petitioner requested that the EPA require Arizona either to remove R18-2-310(B) and (C) fr om the SIP entirely or to revise the rule so that affirmative defenses “are not availa ble 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

58 Petition at 20-22. 59 Petition at 20.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 108 of 146 shutdown periods (R18-2-310(C)) does not incl ude 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 i ndicative 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 a ffirmative 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, th e EPA proposed to deny the Petition with respect to the arguments concerning ADE Q’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 th is provision is inconsistent with the CAA because it is available to source s 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 a pproach is to require the source to establish, as an element of the affirmative defense, that the exce ss 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 app lication of an affirma tive defense provision only to sources without the potent ial to cause NAAQS violations , the state could elect to require a source to prove that the excess em issions did not cause a violation of the***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 109 of 146 NAAQS as an element of the defense instea d. 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 wi th respect to this provision. With respect to the arguments concerni ng ADEQ’s affirmative defense provisions for startup and shutdown peri ods in R18-2- 310(C), the EPA proposed to grant the Petition because it provides an affirmative de fense 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 interpre tation 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 pr ovisions applicable to star tup and shutdown events in the 1999 SSM Guidance. For these reasons, th e 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 resp ect to this provision. c. The EPA’s Revised Proposal In this SNPR, the EPA is reversing its pr ior 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 substant ially inadequate and to issue a SIP call for that provision. The EPA is also revising th e prior basis for the finding of substantial inadequacy and the SIP call for the affirma tive defense provisions applicable to excess***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 110 of 146 emissions that occur duri ng startup and shutdown in R18-2-310(C). The EPA is proposing to revise its interp retation of the CAA with resp ect to affirmative defense provisions in SIPs. Previously the EPA a ssessed whether such provisions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to a ssure 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e 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 certai n circumstances as contemplated in CAA sections 113 and 304. Thus, the EPA believes th at these provisions interfere with the intended enforcement structure of the CAA, through which parties may seek to bring enforcement actions for violations of SIP em ission 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 111 of 146 a. Petitioner’s Analysis The Petitioner objected to two provisions in the Maricopa County Air Pollution Control Regulations that provide affirma tive defenses for excess emissions during malfunctions (Maricopa County Air Pollution Control Regulation 3, Rule 140, § 401) and for excess emissions during startup or shut down (Maricopa County Air Pollution Control Regulation 3, Rule 140, § 402). 60 These provisions in Maricopa County Air Quality Department (MCAQD) Rule 140 are similar to the affirmative defense provisions in ADEQ R18-2-310. 61 First, the Petitioner asserted that the a ffirmative defense provisions in Rule 140 are problematic for the same reasons identi fied 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 a ddressing exceedances of the ambient standards are “inappropriately permissive and do not comply with EPA guidance.” 62 Accordingly, the Petitioner requested that the EPA require Arizona and/or MCAQD either to remove these provisions from the SIP entirely or to revi se them so that they are not available to a single source or small group of sources that has the potenti al to cause a NAAQS exceedance. Second, the Petitioner asserted th at the provisions for startup and shutdown in Rule 140 do not include an explicit requir ement for a source seeking to establish an affirmative defense to prove that “the exce ss emissions in question were not part of a recurring pattern indicative of inadequa te design, operation, or maintenance.” The

60 Petition at 23. 61 Petition at 20-22. 62 Id

.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 112 of 146 Petitioner argued that Rule 140 should be re vised to require such a demonstration. b. The EPA’s Prior Proposal In the February 2013 proposal notice, th e EPA proposed to deny the Petition with respect to the arguments concerning MCAQ D’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 re spect to the claim that this provision is inconsistent with the CAA because it is ava ilable to sources or groups of sources that might have the potential to cause an exceed ance of the NAAQS or PSD increments. The EPA reasoned that an acceptable alternative approach is to re quire 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 w ithout 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 defens e 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 respec t to this provision. With respect to the arguments concerni ng ADEQ’s affirmative defense provisions for startup and shutdown peri ods in Regulation 3, Rule 140, § 402, the EPA previously proposed to grant the Petition because it provi des an affirmative defense for violations due to excess emissions applicable during st artup and shutdown even ts, contrary to the***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 113 of 146 EPA’s interpretation of the CAA. The EPA noted at that time that an affirmative defense for excess emissions that occur during planne d events such as startup and shutdown was contrary to the EPA’s then current interpre tation 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 pr ovisions applicable to star tup and shutdown events in the 1999 SSM Guidance. For these reasons, th e EPA previously proposed to find that Maricopa County Air Pollution Control Regu lation 3, Rule 140, § 402 is substantially inadequate to meet CAA requirements and pr oposed to issue a SIP call with respect to this provision. c. The EPA’s Revised Proposal In this SNPR, the EPA is reversing its pr ior 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 pr ovision 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 shut down in Regulation 3, Rule 140, § 402. The EPA is proposing to revi se its interpretati on 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 a ssure that the defense applied only in appr opriately narrow circumstances . Now, the Agency must***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 114 of 146 evaluate such provisions to determine whethe r they are constructed in a way that would purport to preclude federal court jurisdiction unde r section 113 to assess civil penalties or other forms of relief for violations of SI P emission limits, to prevent courts from considering the statutory factors for the asse ssment of civil penaltie s under section 113 or to interfere with the rights of litigants to pursue enforcement consiste nt with their rights under the citizen suit prov ision of section 304. The EPA interprets Regulation 3, Rule 140, § 401 and Regulation 3, Rule 140, § 402 to provide affirmative defenses that opera te to limit the jurisdiction of the federal court in an enforcement action to assess mone tary penalties under certain circumstances as contemplated in CAA sections 113 and 304. Thus, the EPA believes that these provisions interfere with the intended enfo rcement 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 dete rmine what, if any, reli ef is appropriate. For these reasons, the EPA is proposing to find Regulation 3, Rule 140, § 401 and Regulation 3, Rule 140, § 402 substantially in adequate to meet CAA requirements and the EPA is thus proposing to issue a SIP call with respect to these provisions. 3. California: Eastern Kern Ai r Pollution Control District a. The EPA’s Evaluation In addition to evaluating specific affirma tive 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 in terpretation 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 Califor nia applicable in the Eastern Kern Air***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 115 of 146 Pollution Control District (APCD). The affirm ative defense is included in Kern County “Rule 111 Equipment Breakdown.” This SIP prov ision 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 affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe 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 th is 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 th e provision purports to bar any enforcement***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 116 of 146 action and thus any form of remedy for the violations that occur during the malfunction. Accordingly, the EPA believes that the a ffirmative defense provision created by Kern County Rule 111 is inconsistent with the f undamental 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 ma ke 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. 63 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 prov isions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to assure that the defense applie d 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 ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e citizen suit provision

63 The EPA is proposing in this SNPR to make a finding of substantia l inadequacy and to issue a SIP call for Kern County Rule 111 E quipment Breakdown in the California SIP as it applies in each the Eastern Kern AP CD and the San Joaquin Valley APCD.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 117 of 146 of section 304. The EPA interprets Kern County “Rule 111 Equipment Breakdown” to provide an affirmative defense that operates to limit th e 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. Th e 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 th at would preclude enforcement for excess emissions that would otherwise constitute a violation of the ap plicable SIP emission limitations. Thus, the EPA believes that this provision interferes with the intended enforcement structure of the CAA, through wh ich parties may seek to bring enforcement actions for violations of SIP emission limits a nd 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 inadequa te 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 affirma tive 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 in terpretation 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 st ate of California applicable in the Imperial Valley APCD.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 118 of 146 The affirmative defense is included in Imperial County “Rule 111 Equipment Breakdown.” This SIP provision provides an a ffirmative 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 affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe 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 th is 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 dur ing 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 th e provision purports to bar any enforcement action and thus any form of remedy for the violations that occur during the malfunction.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 119 of 146 Accordingly, the EPA believes that the affi rmative defense provision created by Imperial County Rule 111 is inconsistent with the f undamental 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 ma ke a finding of substantial inadequacy and to issue a SIP call for Imperial C ounty “Rule 111 Equipment Breakdown” in the California SIP applicable in the Imperial Va lley 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 prov isions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to assure that the defense applie d 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 provisions to determine whether they are constructed in a way that would purport to preclude federal court jurisdiction under section 113 to assess ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e citizen suit provision of section 304. The EPA interprets Imperial Count y “Rule 111 Equipment Breakdown” to provide an affirmative defense that operates to limit the jurisdiction of the federal court in***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 120 of 146 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 Ru le 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 th at 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 wh ich parties may seek to bring enforcement actions for violations of SIP emission limits a nd courts may exercise their jurisdiction to determine what, if any, relief is appropriate. For these reasons, the EPA is proposi ng to find Imperial County “Rule 111 Equipment Breakdown” substantially inadequa te 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 affirma tive 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 in terpretation 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 Calif ornia applicable in the San Joaquin Valley APCD. The affirmative defenses are include d in: (i) Fresno County “Rule 110 Equipment Breakdown”; (ii) Kern County “Rule 111 E quipment Breakdown”; (iii) Kings County “Rule 111 Equipment Breakdown”; (iv) Madera County “Rule 113 Equipment***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 121 of 146 Breakdown”; (v) Stanislaus County “Rule 110 Equipment Breakdown”; and (vi) Tulare County “Rule 111 Equipment Breakdown.” 64 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 affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe decision of the court in
NRDC v. EPA indicates that the EPA needs to revise the SSM Policy yet further.

64 The EPA notes that comparable provisions appear in the California SIP for the San Joaquin Valley APCD in Merced County (i n “Rule 109 Equipment Breakdown”) and in San Joaquin County (in “Rule 110 Equipm ent Breakdown”). However, the EPA interprets these provisions to be enforcement discretion provisions, applicable only to the state or air district personnel. In each of thes e counties, the applicable rules provide that if the source meets certain criteria, then “the Ai r Pollution Control Offi cer may elect to take no enforcement action.” The EPA believes that these provisions une quivocally apply only to the exercise of enforcement discretion by th e 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 C ounty 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 122 of 146 As discussed in sections IV and V of th is 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 a sserted by sources in the event of violations during breakdown conditions. Each of thes e provisions defines “breakdown conditions” in comparable ways as any unforeseeable fa ilure 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 o ccur during the malfun ction. Accordingly, the EPA believes that each of the affirmative defense provisions created by Fresno County Rule 110, Kern County Rule 111, Kings C ounty Rule 111, Madera County Rule 113, Stanislaus County Rule 110 and Tulare C ounty Rule 111 is inconsistent with the fundamental enforcement structure of the C AA 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 ma ke a finding of substantial inadequacy and to issue a SIP call for si x provisions in the Californi a SIP applicable in the San Joaquin Valley APCD: (i) Fresno County “Rul e 110 Equipment Breakdown”; (ii) Kern County “Rule 111 Equipment Breakdown”; (i ii) 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 123 of 146 Breakdown.” 65 The EPA is proposing to revise its in terpretation 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 C ounty 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 assess ci vil penalties or other forms of relief for violations of SIP emission limits, to prevent c ourts from considering the statutory factors for the assessment of civil penalties under se ction 113 or to interfer e with the rights of litigants to pursue enforcement consistent wi th their rights under th e 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 sour ce meets certain criteria set forth in each of the Rules, then

65 The EPA is proposing in this SNPR to make a finding of substantia l inadequacy and to issue a SIP call for Kern County Rule 111 E quipment Breakdown in the California SIP as it applies in each the Eastern Kern AP CD and the San Joaquin Valley APCD.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 124 of 146 “no enforcement action may be taken.” By pr oscribing any enforcement by any party if the source meets certain criteria, each of th ese provisions creates an affirmative defense that would preclude enforcement for excess em issions that would ot herwise constitute a violation of the applicable SIP emission lim itations. Thus, the EPA believes that these provisions interfere with the intended enfo rcement 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 dete rmine what, if any, reli ef is appropriate. For these reasons, the EPA is propos ing to find Fresno County “Rule 110 Equipment Breakdown,” Kern County “Rule 111 Equipment Breakdown,” Kings County “Rule 111 Equipment Breakdown,” Madera Co unty “Rule 113 Equipment Breakdown,” Stanislaus County “Rule 110 Equipment Breakdown” and Tulare County “Rule 111 Equipment Breakdown” substantially inadequa te to meet CAA requirements and the EPA is thus proposing to issue a SIP cal l 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 o ccur during SSM events , including startup, shutdown, scheduled maintenance and “upset s” (Alaska Admin. Code tit. 18 § 50.240). 66 The provision provides: “Ex cess 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

66 Petition at 18-20.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 125 of 146 argued that this provision excuses excess em issions in violation of the CAA and the EPA’s SSM Policy, which require all such emissi ons 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 enfor cement actions brought by the EPA or citizens, because it is drafted as if the state were the sole enforcement authority. Finally, the Petitioner pointed ou t, the provision is worded as if it were an affirmative defense, but it uses criteria fo r 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 othe r 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 even ts, contrary to the EPA’s then current interpretation of the CAA to allow such a ffirmative defenses only for malfunctions. The EPA noted at that time that an affirmative de fense for excess emissions that occur during planned events such as startup and shutdow n 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 Fe bruary 2013 proposal notice, the EPA proposed to revise its SSM Policy to refl ect this interpretation of the CAA, and to***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 126 of 146 update the recommendations it previously made concerning affirmative defense provisions applicable to st artup 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 malfuncti ons. 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 subs tantially 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 pr ior basis for the finding of substantial inadequacy and the SIP call for the affirma tive defense provisions applicable to excess emissions that occur during st artup, shutdown and upsets in Al aska Admin. Code tit. 18 § 50.240. The EPA is proposing to revise its inte rpretation of the C AA 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 c onstructed in a way th at would purport to preclude federal court jurisdic tion under section 113 to asse ss 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 civ il penalties under section 113 or to interfere with the rights of litigants to pursue enforcement consistent with their rights under the***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 127 of 146 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 inju nctive relief under certain circumstances as contemplated in CAA sections 113 and 304. T hus, 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 vi olations of SIP emission limits and courts may exercise their jurisdicti on 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 Fe bruary 2013 proposal notice with respect to the other separate bases for the finding of s ubstantial 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 main tenance and “upsets” (Wash. Admin. Code § 173-400-107). 67 The provision provides that “[e] xcess emissions determined to be unavoidable under the procedures and criteria un der this section shall be excused and are not subject to penalty.” The Petitioner ar gued that this prov ision excuses excess

67 Petition at 71-72.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 128 of 146 emissions, in violation of the CAA and th e 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 provis ion could be interpreted to bar enforcement actions brought by the EPA or ci tizens, 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. Th e 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 malf unctions. 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 th e 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 inte rpretation of the CAA, and to update the recommendations it previously made con cerning affirmative defense provisions***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 129 of 146 applicable to startup and shutdow n events in the 1999 SSM Guidance. 68 Furthermore, the EPA previously reasoned that the section of Wash. Admin. Code § 173-400-107 applying to “upsets” is inadequate because the criter ia referenced are not sufficiently similar to those recommended in the EPA’s SSM Policy for affirmative defense provisions applicable to malfunctions. Mo reover, the provision appears to bar the EPA and citizens from seeking penalties and in junctive 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 pr ovision 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 pr ior basis for the proposed finding of substantial inadequacy and the proposed SIP call for the affirmative defense provisions applicable to excess emissions that occu r 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 prov isions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to assure that the defense applie d only in appropriately narrow

68 The EPA notes that its SSM Policy guidance ha s always stated that affirmative defense provisions in SIPs are not appropriate for ex cess 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 “sch eduled maintenance is a predictable event which can be scheduled at the di scretion of the opera tor” and therefore recommended even against the exercise of en forcement discretion for violations during maintenance except under limited circumstances. See 1983 SSM Guidance at Attachment, Page 3.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 130 of 146 circumstances. Now, the Agency must eval uate such provisions to determine whether they are constructed in a way that would pur port to preclude fede ral court jurisdiction under section 113 to assess civil penalties or ot her forms of relief for violations of SIP emission limits, to prevent courts from c onsidering the statutory factors for the assessment of civil penalties unde r section 113 or to interfere w ith the rights of litigants to pursue enforcement consistent with thei r rights under the citi zen 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 inju nctive relief under certain circumstances as contemplated in CAA sections 113 and 304. T hus, 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 vi olations of SIP emission limits and courts may exercise their jurisdicti on to determine what, if any, relief is appropriate. For these reasons, the EPA is proposi ng to find Wash. Admin. Code § 173-400- 107 substantially inadequate to meet CAA re quirements 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 re spect to the other separate bases for the finding of subs tantial inadequacy of this provision. 3. Washington: Energy Facility Site Evaluation Council a. The EPA’s Evaluation In addition to evaluating specific affirma tive defense provisions identified by the***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 131 of 146 Petitioner, the EPA is also evaluating other affirmative defense provisions that may be affected by the Agency’s revision of its in terpretation 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 Washingt on that relate to the Energy Facility Site Evaluation Council (EFSEC). 69 The EFSEC portion of the SIP includes Wash. Admin. Code § 463-39-005, which adopts by refe rence Wash. Admin. Code § 173-400-107, thereby incorporating the affirmative defenses applicable to star tup, shutdown, scheduled maintenance and “upsets” for which, as expl ained earlier in this SNPR, the EPA has proposed to find Wash. Admi n. 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 affirmativ e defense provisions. In particular, the EPA is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe decision of the court in

69 This is the state agency that reviews and authorizes the construc tion and operation of major energy facilities in Washington for all me dia in lieu of any othe r individual state or local agency permits. Thus these affirmativ e defense provisions can become embodied in the authorizations for such sources.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 132 of 146 NRDC v. EPA indicates that the EPA needs to revise the SSM Policy yet further. As discussed in sections IV and V of th is 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 viol ations during startup, shutdown, scheduled maintenance and upsets. The provision provide s 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 enfo rcement action and thus any form of remedy for the violations that occur dur ing such events. The provision e xplicitly states that if the criteria are met, then the vi olations “shall be excused and not subject to penalty.” Accordingly, the EPA believes that the a ffirmative 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. C ode § 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 ma ke a finding of substantial inadequacy and to issue a SIP call for Wash. Admin. C ode § 463-39-005’s incorporation by reference of Wash. Admin. Code § 173-400-107 in the Wa shington SIP with respect to the EFSEC. The EPA is proposing to revise its interpreta tion of the CAA with respect to affirmative defense provisions in SIPs. Previously th e 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 133 of 146 appropriately narrow circumstances. The EPA no tes that the affirmative defenses created in Wash. Admin. Code § 463-39-005 through it s incorporation by reference of Wash. Admin. Code § 173-400-107 did not meet the Agen cy’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 provision s to determine whether they are constructed in a way that would purport to preclude federal court jurisdic tion under section 113 to assess civil penalties or other forms of relie f 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 th e citizen suit provisi on of section 304. The EPA interprets Wash. Admin. C ode § 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 fe deral court in an enforcement action and to limit the authority of the court to impose m onetary penalties as contemplated in CAA sections 113 and 304. The provi sion provides that if a viol ating source meets certain criteria incorporated by reference from Wash. Admin. Code § 173-400-107, then the excess emissions are “excused and not s ubject to penalty.” By proscribing any enforcement by any party if the source meet s 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 wh ich parties may seek to bring enforcement actions for violations of SIP emission limits a nd courts may exercise their jurisdiction to***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 134 of 146 determine what, if any, relief is appropriate. For these reasons, the EPA is proposi ng to find Wash. Admin. Code § 463-39- 005’s incorporation by reference of Was h. Admin. Code § 173-400-107 substantially inadequate to meet CAA requirements and th e 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 affirma tive 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 in terpretation 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 Washi ngton applicable in the portion of the state regulated by the Southwest Clean Air Agency (SWCAA). 70 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 al l 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 affirmativ e defense provisions. In particular, the EPA

70 The EPA notes that the SWCAA was formerly named, and in some places in the SIP still appears, as the “Southwest Air Po llution 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.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 135 of 146 is proposing to reverse its prio r 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 affirma tive defense provisions in SIPs, both for malfunction events and for startup and shutdow n 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 provisi ons only for malfunction events and not for startup and shutdown events. More recent events indicateThe 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 th is 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 th e 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 t hus any form of remedy for the violations that occur during such events. The provision exp licitly 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 crea ted by SWAPCA 400-107 are inconsistent with the fundamental enforcement structure of th e CAA and the EPA thus believes that the provision is not consistent with C AA requirements for SIP provisions. b. The EPA’s Proposal***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 136 of 146 In this SNPR, the EPA is proposing to ma ke 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 SWC AA. 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 prov isions met certain requirements, such as being limited to monetary penalties rather than injunctive relief and containing sufficiently robust criteria to assure that the defense applie d 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 c onstructed in a way th at would purport to preclude federal court jurisdic tion under section 113 to asse ss 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 civ il 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. Th e 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 an y enforcement by any party if the source meets certain criteria, SWAPCA 400-107 creates affirmative defenses that***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 137 of 146 would preclude enforcement for excess emi ssions that would otherwise constitute a violation of the applicable SIP emission lim itations. Thus, the EPA believes that this provision interferes with the intended enfor cement 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 dete rmine what, if any, reli ef is appropriate. For these reasons, the EPA is proposing to find SWAPCA “400-107 Excess Emissions” substantially inad equate to meet CAA requirements and the EPA is thus proposing to issue a SIP call wi th respect to this provision. VIII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Pl anning 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 Offi ce of Management and Budget (OMB) for review under Executive Orders 12866 a nd 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 in formation collection burden. The EPA’s SPNR, in response to the Petition, merely stat es 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 propos es to issue a SIP ca ll to a state under CAA section 110(k)(5), the EPA is only proposing an action that requires the state to revise its***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 138 of 146 SIP to comply with existing requirements of the CAA. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) gene rally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Proce dure Act or any other statute unless the agency certifies that the rule will not have a significant ec onomic impact on a substantial number of small entities. 71 After considering the economic impacts of this SNPR on small entities, I certify that this action will not have a significan t economic impact on a substantial number of small entities. Courts have interpreted the RF A 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 mere ly 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 s ection 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 stat es the choice of how to revise the SIP

71 Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this notice on small entities, small entity is defined as: (1) a small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards ( see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a popu lation of less than 50,000; or (3) a small organization that is any not-for-profit ente rprise that is independently owned and operated and is not dominant in its field.***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 139 of 146 provision in question to make it consistent with CAA requirements and determining, among other things, which of the several lawf ul approaches to the treatment of excess emissions during SSM events will be applied to particular sources. We continue to be interested in the pot ential impacts of the proposed ru le on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act This rule does not contain a federal ma ndate 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 acti on on states would be t hose 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 incl ude development of a state rule, conducting notice and public hearing and other costs incurred in conne ction 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 subj ect to the requirements of s ections 202 or 205 of UMRA. This rule is also not subject to the re quirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The regulatory requirements of th is 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 impl ement 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***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 140 of 146 comply with the CAA. E. Executive Order 13132 – Federalism This action does not have federalism imp lications. It will not have substantial direct effects on the states, on the relations hip 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 betw een 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 finaliz ed for a state, the SIP call will require the affected state to submit only those revisions ne cessary to address the SIP deficiencies and applicable CAA requirements. While this act ion may impose direct effects on the states, the expenditures would not be substantial b ecause 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 impli cations, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). In this action, the EPA is not addressing any***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 141 of 146 tribal implementation plans. This action is limited to states. Thus, Executive Order 13175 does not apply to this action. However, th e 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 regula tion. This action is not subject to EO 13045 because it merely prescribes the EPA’s action for states regarding their ob ligations 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, di stribution or use of energy. Th is action merely prescribes the EPA’s action for states regarding thei r obligations for SIPs under the CAA. I. National Technology Transfer and Advancement Act Section 12(d) of the Nati onal Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulat ory activities unless to do so would be inconsistent with applicable law or otherw ise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures and business practices) that are developed oradopted by voluntary consensus standards***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 142 of 146 bodies. NTTAA directs the EPA to provide C ongress, through OMB, explanations when the EPA decides not to use available and a pplicable voluntary c onsensus 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 Lo w-Income Populations Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federa l agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, dispr oportionately high and adverse human health or environmental effect s of their programs, policies and activities on minority populations and low-inco me populations in the U.S. The EPA has determined that this SNPR will not have disproportionately high and adverse human health or environmental eff ects on minority or low-income populations because it increases the level of environmen tal protection for all affected populations without having any disproportionately high a nd adverse human health or environmental effects on any population, including any minor ity or low-income population. The rule is intended to ensure that all communities a nd populations across the affected states, including minority, low-income and indige nous populations overburdened by pollution, receive the full human health and environm ental protection provide d by the CAA. This proposed action concerns states ’ obligations regarding the tr eatment they give, in rules included in their SIPs under the CAA, to excess emissions during startup, shutdown and malfunctions. This SNPR would require 17 st ates to bring their treatment of these***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 143 of 146 emissions into line with CAA requirements, wh ich would lead to sources’ having greater incentives to control emissi ons during such events. K. Determination Under Section 307(d) Pursuant to CAA section 307(d)(1)(V), th e Administrator determines that this action is subject to the provisi ons 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 “s uch other actions as the Administrator may determine.” L. Judicial Review Section 307(b)(1) of the CAA indicates wh ich Federal Courts of Appeal have venue for petitions of review of final ag ency 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 Circui t (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator” or (ii) when such action is lo cally 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 publishe s that such action is based on such a determination.” This rule responding to the Petition is “n ationally applicable” within the meaning of section 307(b)(1). First, th e rulemaking addresses a Petition that raises issues that are applicable in all states and territories in th e 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 rulemaki ng will address a Petition that raises issues***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 144 of 146 relevant to specific existing SI P provisions in states across the U.S. that are located in each of the 10 EPA Regions, 10 different federa l circuits and multiple time zones. Third, the rulemaking addresses a common core of knowledge and analysis involved in formulating the decision and a common interp retation of the requirements of the CAA being applied to SIPs in stat es across the country. Fourth, the rulemaking, by addressing issues relevant to appropriat e SIP provisions in one state, may have precedential impacts upon the SIPs of other states nationwide. Cour ts have found similar rulemaking actions to be of nationwide scope and effect. 72 This determination is appropriate beca use 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 e ffect” would be appropria te for any action that has “scope or effect beyond a single judici al 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 thes e circumstances, section 307(b )(1) and its legislative history authorize the Administra tor 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 determ ine that this will be a rulemaking of nationwide scope or effect.

72 See, 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 nati onwide scope and effect and thus transferring the case to the U.S. Court of Appeals fo r the D.C. Circuit in accordance with CAA section 307(b)(1)).***E.O. 12866 Review – Draft – Do not C ite, Quote or Release During Review*** EO12866_SSM Petition_2060-AR68_Suppl emental Proposal_FRN_20140827_1133

Page 145 of 146 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 spec ific 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. ).Page 146 of 146 – State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions Du ring Periods of Startup, Shutdown and Malfunction; Supplemental Proposal to Add ress Affirmative Defense Provisions in States Included in the Petition for Ru lemaking and in Ad ditional States

Page 146 of 146 List of Subjects in 40 CFR Part 52 Environmental protection, Affirmative de fense, Air pollution control, Carbon dioxide, Carbon dioxide equi valents, Carbon monoxide, Excess emissions, Greenhouse gases, Hydrofluorocarbons, Incorporation by reference, Intergovernmental relations, Lead, Methane, Nitrogen dioxide, Nitr ous oxide, Ozone, Particulate matter, Perfluorocarbons, Reporting and recordkeep ing requirements, Startup, shutdown and malfunction, State implementation plan, Sulfur hexafluoride, Sulfur oxides, Volatile organic compounds.

________________________ Dated:

_________________________ Janet G. McCabe, Acting Assistant Administrator.