June 30, 2011

Hon. Lisa P. Jackson, Administrator 

United States Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

Via Certified Mail (return receipt requested) and via e-mail: Jackson.lisa@epa.gov and 

Jackson.lisa@epamail.epa.gov

Petition to Find Inadequate and Correct Several State 

Implementation Plans under Section 110 of the Clean Air Act

Due to Startup, Shutdown, Malfunction, and/or Maintenance 

Provisions

Pursuant to the Clean Air Act (“CAA” or “the Act”),1 the Administrative Procedure Act2

1) Pursuant to CAA § 110(k)(5), 42 U.S.C. § 7410(k)(5), notify the states listed below of the 

substantial inadequacies in their state implementation plans and finalize a rule requiring 

the states to revise their plans as described below;

and the 

First Amendment of the Constitution of the United States of America, Sierra Club files this 

petition with the Administrator of the United States Environmental Protection Agency (“EPA”) 

and requests her to take the following actions:

2) Or, alternatively, pursuant to CAA § 110(k)(6), 42 U.S.C. § 7410(k)(6), determine that 

the Administrator’s action approving the implementation plan provisions listed below 

was in error and revise those approvals so that the SIPs are brought into compliance with 

the requirements of the CAA, or promulgate a Federal Implementation Plan (FIP) to do 

the same, as described below.

INTRODUCTION

State Implementation Plans (“SIPs”) are required under the Act to ensure attainment and 

maintenance of the health- and welfare-based National Ambient Air Quality Standards 

(“NAAQS”). But in some states, emissions in excess of SIP limitations during periods of 

startup, shutdown, malfunction3 and/or scheduled maintenance (“SSM”)

4

 1 42 U.S.C. §§ 7401 et seq.

are exempt from 

2 5 U.S.C. §§ 500 et seq.

3 As used by EPA, the term “malfunction” refers to “sudden and unavoidable breakdown of process or control 

equipment.” Memorandum from Steven A. Herman, Assistant Administrator for Enforcement and Compliance 

Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, U.S. EPA on State 

Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown to 

Regional Administrators, Regions I – X (Sep. 20, 1999) [hereinafter 1999 Memorandum], Attachment at 1 n.1. 

Some states use terms such as “upset” and “breakdown” to denote substantially similar occurrences. See, e.g., 

Alaska Admin. Code tit. 18 § 50.240(f) and 401 Ky. Admin. Regs. 50:055 § 1(4)(e). 4 The acronym “SSM” is most commonly used to denote startup, shutdown and malfunction but not scheduled 

maintenance. However, several states have included provisions that allow special treatment for excess emissions 

during scheduled maintenance and those provisions are included in this petition.
Sierra Club SSM Petition to EPA Page 2 of 80

compliance. These SSM exemptions undermine the emission limits in SIPs and threaten states’ 

abilities to achieve and maintain compliance with NAAQS, thereby threatening public health and 

public welfare, which includes agriculture, historic properties and natural areas. Despite the 

Act’s requirements and EPA’s view that SSM exemptions have no place in SIPs, many of these 

provisions remain effective and enforceable as a matter of federal law due to prior EPA SIP 

approvals. EPA has encouraged the Regional Administrators to work with the states in their 

regions to remove or fix the SSM provisions in their SIPs.5 EPA recently required Utah to revise 

the excess emissions provisions in its SIP in order to comply with the Clean Air Act and 

longstanding EPA guidance.6

 5 1999 Memorandum at 4.

 Nevertheless, many states still have SSM provisions that are 

inconsistent with the Act. SSM exemptions continue to undermine the NAAQS, Prevention of 

Significant Deterioration (“PSD”) increments, and visibility requirements of the Act. EPA 

should act now to close these loopholes, some of which have shielded sources from compliance 

for decades.

6 Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision, 76 

Fed. Reg. 21,639 (Apr. 18, 2011).
Sierra Club SSM Petition to EPA Page 3 of 80

Table of Contents

Introduction..................................................................................................................................... 1

Legal Background........................................................................................................................... 5

I. Clean Air Act Requirements for State Implementation Plans............................................. 5

II. Prior EPA Guidance ......................................................................................................... 5

A. Bennett Memoranda in 1982 and 1983......................................................................... 6

B. Hermann & Perciasepe Memorandum in 1999 ............................................................ 7

Argument ...................................................................................................................................... 10

I. Affirmative defenses for excess emissions in judicial proceedings are contrary to the 

Clean Air Act. EPA should revise its policy to disallow them in SIPs, and issue a SIP call 

requiring states to eliminate them............................................................................................. 10

II. SSM exemptions undermine the ability of states, EPA, and citizens to protect the 

NAAQS, PSD increments, and visibility. They must be removed from all SIPs..................... 12

III. Interpretations of regulations that form the basis of EPA’s SIP approval should be 

included in the text of state regulations rather than, or in addition to, being memorialized in 

correspondence. ........................................................................................................................ 14

Analysis of Individual States’ SSM Provisions............................................................................ 17

Alabama ................................................................................................................................ 17

Alaska ................................................................................................................................... 18

Arizona.................................................................................................................................. 20

Arkansas................................................................................................................................ 24

Colorado................................................................................................................................ 25

Delaware ............................................................................................................................... 28

District of Columbia ............................................................................................................. 29

Florida ................................................................................................................................... 30

Georgia.................................................................................................................................. 32

Idaho ..................................................................................................................................... 33

Illinois................................................................................................................................... 33

Indiana................................................................................................................................... 36

Iowa....................................................................................................................................... 37

Kansas................................................................................................................................... 38

Kentucky............................................................................................................................... 39

Louisiana............................................................................................................................... 42

Maine .................................................................................................................................... 43

Michigan ............................................................................................................................... 44

Minnesota.............................................................................................................................. 46

Mississippi ............................................................................................................................ 47

Missouri ................................................................................................................................ 49

Montana ................................................................................................................................ 50

Nebraska ............................................................................................................................... 51

New Hampshire .................................................................................................................... 52

New Jersey............................................................................................................................ 53

New Mexico.......................................................................................................................... 54

North Carolina ...................................................................................................................... 57

North Dakota......................................................................................................................... 59

Ohio....................................................................................................................................... 60
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Oklahoma.............................................................................................................................. 61

Oregon................................................................................................................................... 63

Rhode Island ......................................................................................................................... 63

South Carolina ...................................................................................................................... 65

South Dakota......................................................................................................................... 66

Tennessee.............................................................................................................................. 67

Virginia ................................................................................................................................. 70

Washington ........................................................................................................................... 71

West Virginia ........................................................................................................................ 72

Wyoming............................................................................................................................... 74

Conclusion .................................................................................................................................... 75
Sierra Club SSM Petition to EPA Page 5 of 80

LEGAL BACKGROUND

I. Clean Air Act Requirements for State Implementation Plans

Section 110 of the Clean Air Act requires states to submit SIPs to ensure that each state attains 

and maintains compliance with each of the NAAQS promulgated by EPA.7 The plans must 

include “enforceable emission limitations” sufficient to meet the Act’s requirements.8

 The plans 

must also prohibit the emission of air pollution that contributes to nonattainment or interference 

with maintenance of the NAAQS in any other state.9 The states must have adequate authority to 

carry out their implementation plans.10 In areas that have not attained the NAAQS, the plan 

must provide for attainment and include enforceable emissions limitations to that end.11

In addition to the states’ authority to enforce their SIPs, sections 113 and 304 of the Act create 

enforcement mechanisms for EPA and citizens.12 The Administrator is empowered to determine 

whether a person has violated or is violating any SIP provision and issue an order to comply or 

assess civil penalties.13 The district courts, upon complaint by the Administrator or by a citizen, 

have jurisdiction to assess relief whenever a person has violated or is violating a SIP or permit.14

II. Prior EPA Guidance

EPA has long held that exemptions for excess emissions15 due to SSM are inconsistent with the 

Act and should not be included in SIPs. In the late 1970s, EPA first publically noted 

unacceptable SSM exemptions and explained that these exemptions should not be allowed in 

SIPs.16

The longstanding policy makes clear that excess emissions resulting from 

malfunctions are violations of the Clean Air Act, for such emissions can interfere 

with attainment of the national air standards. ... We defer to the EPA’s 

 At least two circuit courts of appeals have upheld EPA’s interpretation of the Clean Air 

Act.

 7 42 U.S.C. § 7410(a)(1). 8 Id. § 7410(a)(2)(A). 9 Id. § 7410(a)(2)(D)(i). 10 Id. § 7410(a)(2)(E). 11 Id. § 7502(c)(1), (c)(2). 12 Id. §§ 7413; 7604. 13 Id. § 7413(a)(1), (d)(1). 14 Id. §§ 7413(b), 7604(a). 15 According to EPA’s 1982 policy statement, “ ‘excess emission’ means an air emission rate which exceeds any 

applicable emission limitation.” Memorandum from Kathleen M. Bennett, Assistant Administrator for Air, Noise 

and Radiation, U.S. EPA on Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions 

to Regional Administrators, Regions I – X, U.S. EPA (Sep. 28, 1982) [1982 Memorandum], Attachment at 1. 16 Approval and Promulgation of Utah SO2 Control Strategy, 42 Fed. Reg. 21,472 (Apr. 27, 1977); Approval and 

Promulgation of Idaho SO2 Control Strategy, 42 Fed. Reg. 58,171 (Nov. 8 1977). The Administrator believed that 

“the issuance of an administrative order or the initiation of judicial action following a period of excess emissions 

caused by circumstances beyond the control of the operator may not be appropriate.” But “the automatic granting of 

a regulatory exemption for these periods of excess emissions is not a suitable remedy.” Approval and Promulgation 

of Utah SO2 Control Strategy, 42 Fed. Reg. at 21,472.
Sierra Club SSM Petition to EPA Page 6 of 80

longstanding policy, for the policy is a reasonable interpretation of the Clean Air 

Act.

Ariz. Pub. Serv. Co. v. U.S. EPA, 562 F.3d 1116, 1129 (10th Cir. 2009); see also Mich. Dep’t of 

Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000).

A. Bennett Memoranda in 1982 and 1983

EPA further explained its policy on SSM provisions in SIPs in two memoranda, issued by then 

Assistant Administrator for Air, Noise and Radiation, Kathleen M. Bennett in 1982 and 1983.17 

The foundation of EPA’s policy was – and continues to be – that all excess emissions must be 

considered violations of the applicable standards.18 All excess emissions should be treated as 

violations because any excess emission may “cause or contribute to violations of the 

[NAAQS].”19

States usually have the inherent authority to decide whether or not they will proceed to enforce 

limitations. Thus, a state need not adopt any SSM provision at all in its SIP.20 EPA 

distinguishes excess emissions during malfunctions from excess emissions during startup, 

shutdown and scheduled maintenance. If the state decides to codify its approach to excess 

emissions during malfunctions, EPA policy allows an “enforcement discretion approach.”21

Such an approach can require the source to demonstrate to the appropriate State 

agency that the excess emissions, though constituting a violation, were due to an 

unavoidable malfunction. Any malfunction provision must provide for the 

commencement of a proceeding to notify the source of its violation and to 

determine whether enforcement action should be undertaken for any period of 

excess emissions.22

 17 1982 Memorandum; Memorandum from Kathleen M. Bennett, Assistant Administrator for Air, Noise and 

Radiation, U.S. EPA on Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions to 

Regional Administrators, Regions I – X, U.S. EPA (Feb. 15, 1983) [1983 Memorandum]. 18 1982 Memorandum at 1.

19 Id. EPA stated:

Without clear definition and limitations, these automatic exemption provisions could effectively 

shield excess emissions arising from poor operation and maintenance or design, thus precluding 

attainment. Additionally, by establishing an enforcement discretion approach and by requiring the 

source to demonstrate the existence of an unavoidable malfunction on the source, good 

maintenance procedures are indirectly encouraged.

Id.

20 Id., Attachment at 1. 21 Id. 22 Id. The state should consider five criteria in deciding whether or not to pursue enforcement action for excess 

emissions allegedly due to a malfunction:

1. To the maximum extent practicable the air pollution control equipment, process equipment, or 

processes were maintained and operated in a manner consistent with good practice for minimizing 

emissions;

2. Repairs were made in an expeditious fashion when the operator knew or should have known that 

applicable emission limitations were being exceeded. Off-shift labor and overtime must have been 
Sierra Club SSM Petition to EPA Page 7 of 80

In no case, however, should excess emissions during predictable events be eligible for nonenforcement under this policy. According to the policy in the 1982 and 1983 Memoranda, 

“[a]ny activity or event which can be foreseen and avoided or planned, falls outside of the 

definition of sudden and unavoidable breakdown of equipment.”23 Startup and shutdown of the 

source and scheduled maintenance are all predictable events that either occur during normal 

operation or can be planned.24

EPA noted that scheduled maintenance can generally be planned to coincide with shutdown of 

the source. “Consequently, excess emissions during periods of scheduled maintenance should be 

treated as a violation unless a source can demonstrate that such emissions could [not] have been 

avoided through better scheduling for maintenance or through better operation and maintenance 

practices.”25

B. Hermann & Perciasepe Memorandum in 1999

In 1999, EPA reaffirmed and clarified the approaches to SSM SIP provisions it had endorsed in 

the 1982 and 1983 memoranda.26 EPA also outlined another approach – an affirmative defense –

that at that time EPA believed states could include in their SIPs to address excess emissions 

caused by SSM.27

EPA reiterated that, in its view, enforcement discretion is the best approach to excess emissions 

caused by SSM conditions.28 In the 1999 memorandum, EPA clarified that SIP provisions –

whether they codify a state’s inherent enforcement discretion or implement an affirmative 

defense – must not impede the ability of EPA or citizens independently to bring enforcement 

actions.29

 

utilized, to the extent practicable, to ensure that such repairs were made as expeditiously as 

practicable;

3. The amount and duration of the excess emissions (including any bypass) were minimized to the 

maximum extent practicable during periods of such emissions;

4. All possible steps were taken to minimize the impact of the excess emissions on ambient air 

quality; and

5. The excess emissions are not part of a recurring pattern indicative of inadequate design, operation, 

or maintenance.

Id., Attachment at 1-2. 23 Id., Attachment at 2; 1983 Memorandum, Attachment at 2. 24 1983 Memorandum. Attachment at 3. 25 Id. The original text omitted the word “not,” however the context clearly indicates that it was intended. 26 1999 Memorandum. 27 Id. at 2. 28 Id. (“The best assurance that excess emissions will not interfere with NAAQS attainment, maintenance, or 

increments is to address excess emissions through enforcement discretion.”).

29 Id. at 3 (“[EPA] does not intend to approve SIP revisions that would enable a State director’s decision to bar 

EPA’s or citizens’ ability to enforce applicable requirements. Such an approach would be inconsistent with the 

regulatory scheme established in Title I of the Clean Air Act.”); see also id., Attachment at 2 (“[A] determination by 

the state not to take enforcement action would not bar EPA or citizen action.”); Approval and Disapproval and 

Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 

(Feb. 22, 2006) (disapproving section II.J.5 because it could be interpreted to preclude EPA and citizen 

enforcement).
Sierra Club SSM Petition to EPA Page 8 of 80

EPA allowed states, in consultation with EPA, to address certain excess emissions during startup 

and shutdown with “narrowly-tailored SIP revisions that take ... technological limitations into 

account ... .”30 These narrow provisions may not apply “where a single source or small group of 

sources has the potential to cause an exceedance of the NAAQS or PSD increments.”31

In any event, EPA’s past policy provided that these types of revisions were only appropriate 

when several criteria were met:

 What 

has the potential to cause an exceedance of a NAAQS or PSD increment has changed over time 

as revised NAAQS have become more protective, e.g. ozone, lead, SO2, NOx, or new standards 

have been added, e.g. PM2.5 NAAQS and PM2.5 increments. This is especially true in the context 

of the revised SO2 and NOx NAAQS which are now based on a one-hour averaging time,

making them very susceptible to violation during SSM events. Thus, SIP provisions that in the 

past did not risk violating NAAQS and increments may now do so and thus, even according to 

EPA’s past policy, no longer be acceptable. 

1. The revision must be limited to specific, narrowly defined source categories 

using specific control strategies (e.g., cogeneration facilities burning natural 

gas and using selective catalytic reduction);

2. Use of the control strategy for this source category must be technically 

infeasible during startup or shutdown periods;

3. The frequency and duration of operation in startup or shutdown mode must be 

minimized to the maximum extent practicable;

4. As part of its justification of the SIP revision, the state should analyze the 

potential worst-case emissions that could occur during startup and shutdown;

5. All possible steps must be taken to minimize the impact of emissions during 

startup and shutdown on ambient air quality;

6. At all times, the facility must be operated in a manner consistent with good 

practice for minimizing emissions, and the source must have used best efforts 

regarding planning, design, and operating procedures to meet the otherwise 

applicable emission limitation; and

7. The owner or operator's actions during startup and shutdown periods must be 

documented by properly signed, contemporaneous operating logs, or other 

relevant evidence.32

In addition to the enforcement discretion approach and “narrowly-tailored” alternative 

limitations, the 1999 memorandum specified the situations in which, in EPA’s view at that time, 

a state can provide an affirmative defense for excess emissions due to SSM.33 Many states have 

SIP provisions, resembling affirmative defenses, that offer relief to sources which have exceeded 

emissions limitations based upon a certain showing but without specifying the procedure by 

which the showing is made and judged.

34

 30 1999 Memorandum, Attachment at 4-5.

 A true affirmative defense, though, is “raised in the 

31 Id., Attachment at 5. 32 Id. 33 Id. at 2. 34 See, e.g., Alaska Admin. Code tit. 18 § 50.240; 326 Ind. Admin. Code 1-6-4; Utah Admin. Code r. R307-107.
Sierra Club SSM Petition to EPA Page 9 of 80

context of an enforcement proceeding before an independent trier of fact,” and is not determined 

by the state.35

EPA guidance set forth several limitations to the potential use of such affirmative defenses. 

They may never apply to requests for injunctive relief, but must be limited to requests for civil 

penalties.36 This is because “EPA has a fundamental responsibility under the Clean Air Act to 

ensure that SIPs provide for attainment and maintenance of the [NAAQS] and protection of the 

[PSD] increments.”37 Further, affirmative defenses may not be available “[w]here a single 

source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD 

increments ... .”38 In these situations, “an affirmative defense approach will not be adequate to 

protect public health and the environment...,” and enforcement discretion is the only appropriate 

approach to excess emissions.39 And finally, affirmative defenses should not apply to any 

limitations “that derive from federally promulgated performance standards or emission limits, 

such as new source performance standards (NSPS) and national emissions standards for 

hazardous air pollutants (NESHAPS).”40

EPA has enumerated additional elements that should be included if a state chooses to adopt an 

affirmative defense for excess emissions due to malfunctions or startup and shutdown. EPA’s 

guidance states that an affirmative defense to excess emissions during malfunctions must consist 

of the following elements, on which the defendant must have the burden of proof:

1. The excess emissions were caused by a sudden, unavoidable breakdown of 

technology, beyond the control of the owner or operator;

2. The excess emissions (a) did not stem from any activity or event that could 

have been foreseen and avoided, or planned for, and (b) could not have been 

avoided by better operation and maintenance practices;

3. To the maximum extent practicable the air pollution control equipment or 

processes were maintained and operated in a manner consistent with good 

practice for minimizing emissions;

4. Repairs were made in an expeditious fashion when the operator knew or 

should have known that applicable emission limitations were being exceeded. 

Off-shift labor and overtime must have been utilized, to the extent practicable, 

to ensure that such repairs were made as expeditiously as practicable;

5. The amount and duration of the excess emissions (including any bypass) were 

minimized to the maximum extent practicable during periods of such 

emissions;

6. All possible steps were taken to minimize the impact of the excess emissions 

on ambient air quality;

 35 1999 Memorandum, Attachment at 2 n.4; Approval and Disapproval and Promulgation of Colorado Affirmative 

Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8960 n.3; Envtl. Prot. Agency, Excess Emissions 

during SSM Meeting: EPA Presentation, 6 (presented Jan. 19, 2005), Document ID EPA-R08-OAR-2010-0909-

0031.

36 1999 Memorandum at 2; id., Attachment at 3 (malfunction), 6 (startup and shutdown). 37 Id. at 2 (citing 42 U.S.C. § 7410(a), (l)). 38 Id. at 3 (emphasis added).

39 Id. 40 Id., Attachment at 3.
Sierra Club SSM Petition to EPA Page 10 of 80

7. All emission monitoring systems were kept in operation if at all possible;

8. The owner or operator’s actions in response to the excess emissions were 

documented by properly signed, contemporaneous operating logs, or other 

relevant evidence;

9. The excess emissions were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and

10. The owner or operator properly and promptly notified the appropriate 

regulatory authority.41

EPA guidance likewise states that an affirmative defense for excess emissions for startup and 

shutdown must have similar, but distinct, elements:

1. The periods of excess emissions that occurred during startup and shutdown 

were short and infrequent and could not have been prevented through careful 

planning and design;

2. The excess emissions were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance;

3. If the excess emissions were caused by a bypass (an intentional diversion of 

control equipment), then the bypass was unavoidable to prevent loss of life, 

personal injury, or severe property damage;

4. At all times, the facility was operated in a manner consistent with good 

practice for minimizing emissions;

5. The frequency and duration of operation in startup or shutdown mode was 

minimized to the maximum extent practicable;

6. All possible steps were taken to minimize the impact of the excess emissions 

on ambient air quality;

7. All emission monitoring systems were kept in operation if at all possible;

8. The owner or operator’s actions during the period of excess emissions were 

documented by properly signed, contemporaneous operating logs, or other 

relevant evidence; and

9. The owner or operator properly and promptly notified the appropriate 

regulatory authority.42

ARGUMENT

I. Affirmative defenses for excess emissions in judicial proceedings are contrary to the 

Clean Air Act. EPA should revise its policy to disallow them in SIPs, and issue a SIP 

call requiring states to eliminate them.

The Clean Air Act unambiguously grants jurisdiction to the district courts to determine the 

penalties that should be assessed in an enforcement action involving the violation of an emission 

limit. The Act states that, in civil actions brought by EPA in the district courts, “such court shall 

have jurisdiction to restrain such violation, to require compliance, to assess such civil penalty, ... 

 41 Id., Attachment at 3-4. 42 Id., Attachment at 6.
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and to award any other appropriate relief.”43 In actions brought by citizens, “[t]he district court 

shall have jurisdiction, ... to enforce such emission standard or limitation, or such an order, ... 

and to apply any appropriate civil penalties ... .”44

Congress also specified in the Act the list of factors that the district courts are to consider in 

assessing penalties:

the Administrator or the court, as appropriate, shall take into consideration (in 

addition to such other factors as justice may require) the size of the business, the 

economic impact of the penalty on the business, the violator’s full compliance

history and good faith efforts to comply, the duration of the violation as 

established by any credible evidence (including evidence other than the applicable 

test method), payment by the violator of penalties previously assessed for the 

same violation, the economic benefit of noncompliance, and the seriousness of the 

violation.45

EPA’s policy on affirmative defenses is inconsistent with these provisions of the Clean Air Act

because the inclusion of an affirmative defense provision in a SIP limits the courts’ discretion –

granted by Congress – to assess penalties for Clean Air Act violations. In the CAA Congress 

imposed strict liability for violations,46 and specified how the size of the penalty should be 

determined.

47 However, the inclusion of an affirmative defense in a SIP could enable a 

defendant to avoid any penalty. The elements of the affirmative defenses that EPA allows ignore 

some of the penalty criteria that the Act instructs the district courts to weigh when assessing 

penalties for violations. The affirmative defenses omit assessment of “the size of the business,”

“the economic impact of the penalty on the business,” “the violator’s full compliance history

...,” the economic benefit of noncompliance,” and “the seriousness of the violation.”48 The 

affirmative defense also prevents courts from considering “other factors as justice may 

require.”49

Petitioner requests, first, that EPA rescind its policy allowing states to include in their SIPs 

affirmative defenses to excess emissions. Second, petitioner requests EPA to find that all SIPs 

containing an affirmative defense to penalties for excess emissions are substantially inadequate 

 Preventing the district courts from considering these statutory factors is not a 

permissible interpretation of the Clean Air Act. Congress has spoken to the precise issue of what 

factors are relevant for assessing penalties and EPA therefore has no authority to supplant that 

Congressional intent.

 43 42 U.S.C. § 7413(b). 44 Id. § 7604(a). 45 Id. § 7413(e)(1). 46 See, e.g., United States v. Dell’Aquilla, 150 F.3d 329, 332 (3d Cir.1998); United States v. B & W Inv. Props., 38 

F.3d 362, 367 (7th Cir.1994).

47 For example, in no case should polluters be able to “obtain an economic benefit vis-à-vis their competitors due to 

their non-compliance with environmental laws.” Pub. Interest Research Group of New Jersey, Inc. v. Powell 

Duffryn Terminals, Inc., 913 F.2d 64, 79 (3d Cir.1990); see also United States v. Mun. Auth. of Union Twp., 150 

F.3d 259, 265 (3d Cir.1998).

48 42 U.S.C. § 7413(e)(1).

49 Id.
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to comply with the requirements of the Clean Air Act, and issue a call for each of the states with 

such a SIP to revise it in conformity with the requirements of the Act.

Alternatively, in the event that EPA denies this request, petitioner requests that EPA require 

states with affirmative defenses to revise them so that they are consistent with EPA’s policy by 

finding that noncompliant affirmative defenses are substantially inadequate to comply with the 

requirements of the Clean Air Act, as EPA has interpreted it, and issue a call for each of the 

states with such a SIP to revise it in conformity with the requirements of the Act.

II. SSM exemptions undermine the ability of states, EPA, and citizens to protect the 

NAAQS, PSD increments, and visibility. They must be removed from all SIPs.

Beyond affirmative defenses discussed above, SIPs have two basic types of impermissible SSM 

exemptions. Automatic exemptions are those that create categories of excess emissions that are 

not violations of the SIP. Florida’s SIP, for example, provides that “[e]xcess emissions resulting 

from startup, shutdown or malfunction of any source shall be permitted providing ...” that 

certain criteria are met.50

Discretionary exemptions, on the other hand, create categories of excess emissions that may be 

excused by the state enforcement authority. North Carolina’s SIP, for instance, provides that 

“[a]ny excess emissions that do not occur during start-up or shut down shall be considered a 

violation of the appropriate rule unless the owner or operator of the source of the excess 

emissions demonstrates to the director, that the excess emissions are the result of a 

malfunction.”

 Such automatic exemptions cannot ensure that the SIP meets the 

requirements of CAA § 110.

51

SIPs must include emission limitations designed to ensure attainment and maintenance of the 

NAAQS and PSD increments. Because the Act does not directly prohibit a source from causing 

or contributing to exceedances of the NAAQS or PSD increments, these emission limitations in 

SIPs are a crucial mechanism by which these ambient standards are met and maintained. SSM 

regulations that provide exemptions to these limitations interfere with this mechanism and 

thereby undermine attainment and maintenance of the NAAQS, protection of PSD increments 

and other CAA requirements.

 Exemptions that may be granted by the state do not comply with the 

enforcement scheme of Title I of the Act because they undermine enforcement by EPA under 

section 113 of the Act or by citizens under section 304.

52 The amount of excess emissions during SSM can be 

exceptionally large – many times above the limits. In fact, excess emissions can swamp the 

amount of pollutants emitted at other times.53

 50 Fla. Admin. Code Ann. r. 62-210.700(1) (emphasis added).

 SSM exemptions create large loopholes to the 

51 15A N.C. Admin. Code 2D.0535(c) (emphasis added). 52 Finding of Substantial Inadequacy and Call for Utah State Implementation Plan Revision, 75 Fed. Reg. 70,888, 

70,891 (proposed Nov. 19, 2010) [Proposed Utah SIP Call].

53 See, e.g., Envtl. Integrity Project, Gaming the System 7, 8 (2004) , available at

http://www.environmentalintegrity.org/news_reports/Report_Gaming_System.php. The Environmental Integrity 

Project (“EIP”) defines upsets as “non-routine events, such as equipment breakdowns, startup, shutdown and 

maintenance, at industrial facilities that cause them to emit more pollution than allowed by their permits and 

applicable rules.” Id. at 1. EIP found that upset emissions at several natural gas plants were between 35 and 163 

times other reported annual emissions and that upset emissions at some refineries are two and a half to three times 

other reported annual emissions. Id. at 7, 8.
Sierra Club SSM Petition to EPA Page 13 of 80

Act’s fundamental requirement that a SIP must provide for attainment and maintenance of the 

NAAQs and PSD increments.

SIP provisions that automatically exempt emissions during SSM conditions prevent the SIP’s

emission limits from serving as “enforceable emission limitations” that meet section 110 

requirements. This undermines the Clean Air Act’s requirement that each SIP must include 

“enforceable emission limitations and other control measures ... to meet the applicable 

requirements of [the Act].”54 The Act defines “the terms ‘emission limitation’ and ‘emission 

standard’ [to] mean a requirement established by the State or the Administrator which limits the 

quantity, rate, or concentration of emissions of air pollutants on a continuous basis ... .”55

Since the 1970s, EPA has held the view that automatic exemptions for SSM interfere with the 

requirements of the Clean Air Act. According to EPA, “[i]t is our interpretation that the 

fundamental integrity of the CAA’s SIP process and structure are undermined if emission limits 

relied on to meet CAA requirements related to protection of public health and the environment 

can be violated without potential recourse.”

 SSM 

exemptions preclude anyone, including the states, from enforcing limitations that can ensure 

ambient air standards are met. Further, emission limits subject to such exemptions do not 

constrain emissions “on a continuous basis,” as the Act requires.

56

In addition, any SIP provision that purports to vest the determination of whether or not a 

violation of the SIP has occurred with the state enforcement authority is inconsistent with the 

enforcement provisions of the Act. Section 113 allows EPA to ensure compliance by three 

methods: the Agency may issue an order of compliance, assess civil penalties in an 

administrative proceeding, or file a civil judicial action.57 These options are available when “the 

Administrator finds that any person has violated or is in violation of any requirement or 

prohibition of an applicable plan or permit ... .”58 The Act therefore reserves the power of the 

Administrator to use her own judgment in deciding whether a violation has occurred. The Act 

also vests jurisdiction in the courts to grant relief in civil actions, whether brought by EPA or by 

citizens.59 Thus citizens must also retain the ability to independently decide whether 

enforcement is warranted. Citizen enforcement is not merely a peripheral or interstitial measure, 

according to the Supreme Court, but an important aspect of enforcement.60 The Court found that 

“Congress enacted § 304 specifically to encourage citizen participation in the enforcement of 

standards and regulations established under this Act, and intended the section to afford citizens 

very broad opportunities to participate in the effort to prevent and abate air pollution.”61

 54 42 U.S.C. § 7410(a)(2)(A).

 The 

power of the courts to adjudicate these cases, under the CAA, requires that they be able to 

determine whether or not violations have occurred. The Act does not allow decisions by state 

authorities to cut off any of these statutory enforcement mechanisms.

55 Id. § 7602(k) (emphasis added). 56 Proposed Utah SIP Call, 75 Fed. Reg. at 70,892. 57 42 U.S.C. § 7413(a)(1). The Act also authorizes criminal enforcement. 42 U.S.C. § 7413(c). 58 Id.

59 Id. §§ 7413(b), 7604(a). 60 Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560 (1986). 61 Id. (citations omitted).
Sierra Club SSM Petition to EPA Page 14 of 80

In 1999, EPA clarified that this was also its interpretation of the Act:

SIP provisions that give exclusive authority to a state to determine whether an 

enforcement action can be pursued for an exceedance of an emission limit are 

inconsistent with the CAA’s regulatory scheme. EPA and citizens, and any court 

in which they seek to file an enforcement claim, must retain the authority to 

independently evaluate whether a source’s exceedance of an emission limit 

warrants enforcement action.62

Exemptions that excuse violations or otherwise interfere with injunctive relief directly prevent 

EPA and citizens (and sometimes the states) from ensuring compliance with the Act.63 

Indirectly, these exemptions reduce the incentive of sources to operate in accordance with best 

practices and to invest in controls and equipment that protect health and the environment.64

Petitioner requests that EPA find that all SIPs containing an SSM exemption or a provision that 

could be interpreted to affect EPA or citizen enforcement are substantially inadequate to comply 

with the requirements of the Clean Air Act and issue a call for each of the states with such a SIP 

to revise it in conformity with the requirements of the Act or otherwise remedy these defective 

SIPs.

The analysis below of individual states’ SSM provisions that follows includes generallyapplicable provisions, those that apply to all pollutants and all source categories. Many states 

also have SIP-approved SSM provisions that pertain to specific pollutants and/or source 

categories. The same arguments that apply to the general SSM provisions also apply to those 

narrower provisions. Some pollutant and source category specific provisions have been 

identified, but this is not intended to be an exhaustive list as we did not read every line of every 

SIP provision in the country.

The analysis below of individual states’ SSM provisions addresses state regulations that EPA has 

approved for inclusion in the states’ federally-enforceable SIPs. Several states have submitted to 

EPA revisions to their SSM regulations; this petition generally does not address revised state 

regulations that are pending before EPA but have not been approved for SIP inclusion.

III. Interpretations of regulations that form the basis of EPA’s SIP approval should be 

included in the text of state regulations rather than, or in addition to, being

memorialized in correspondence.

In some cases, EPA has approved SIP provisions that, by their plain terms, do not comply with 

the requirements of the Clean Air Act, or even meet the various EPA policies on SSM 

provisions. EPA has sometimes rationalized these approvals by first obtaining letters of 

interpretation from the state authorities that construe the state’s SSM provisions in a manner that 

complies with EPA guidance. However, such constructions are not necessarily apparent from 

 62 Proposed Utah SIP Call, 75 Fed. Reg. at 70,893. 63 Id. at 70,891. 64 Id.; see, also, Approval and Promulgation of Utah SO2 Control Strategy, 42 Fed. Reg. 21,472, 21,472-73 (Apr. 27, 

1977); Approval and Promulgation of Idaho SO2 Control Strategy, 42 Fed. Reg. 58,171 (Nov. 8 1977).
Sierra Club SSM Petition to EPA Page 15 of 80

the text of the provisions and their enforceability may be difficult and unnecessary complex and 

inefficient.

When EPA approved Oklahoma’s SSM provisions in 1984, for instance, it compared them, 

factor-by-factor, with its recently issued SSM guidance.65 At first, EPA was unable to determine 

whether the regulations on their face complied with EPA’s guidance.

66 EPA therefore requested 

clarification from Oklahoma about how the State intended to interpret and administer its 

regulations. After receiving two letters of clarification from Oklahoma, EPA concluded that the 

SSM provisions, as Oklahoma intended to execute them, did comply with EPA guidance.

67 

Thus, EPA and Oklahoma purported to resolve several ambiguities in the existing SSM 

provisions through correspondence that was never promulgated as part of the Oklahoma SIP. 

Oklahoma’s letters of clarification are quoted, but not reproduced, in the Federal Register notice 

of EPA’s SIP approval.

68

EPA recently took a similar approach to ambiguous SSM provisions in the Tennessee SIP. In an 

action redesignating to attainment the Knoxville 1997 8-hour ozone nonattainment area, EPA 

was faced with SIP provisions whose ambiguities arguably undermine the enforceability of the 

applicable requirements.69 To address these ambiguities, “EPA contacted Tennessee and Knox 

County, requesting their interpretations of their respective rules ... .”70 In response, both 

Tennessee and Knox County stated that they interpret their regulations in a manner that does not 

preclude enforcement of emissions limitations and standards.71

Although EPA interprets the SIP in the same manner as indicated by the State and 

the County, EPA recognizes that the cited language is not as clear as would be 

ideal. EPA would encourage the State and County to clarify the language in any 

future revisions to these provisions of the SIP.

 EPA accepted these 

interpretations for the purpose of the redesignation, but stated:

72

In another context, EPA has recognized that statements made during the SIP approval process 

are not a substitute for clearly worded provisions in the SIP itself. When EPA proposed a call 

for Utah to revise its SSM provisions, it reviewed the original approval in which EPA had 

purported to limit its approval of the unacceptable SSM provision.

73

 65 Revision to Oklahoma Regulation 1.5 – Reports Required; Excess Emissions During Startup, Shutdown and 

Malfunction of Equipment, 49 Fed. Reg. 3084, 3084 (Jan. 24, 1984).

 EPA now recognizes that 

this was not appropriate:

66 Id. 67 Id. at 3084-85. 68 Id. 69 Redesignation of the Knoxville 1997 8-Hour Ozone Nonattainment Area to Attainment, 76 Fed. Reg. 12,587, 

12,589-90 (Mar. 8, 2011). 70 Id. at 12,590. 71 Id. at 12,590-91. 72 Id. at 12,591 n.2. 73 Proposed Utah SIP Call, 75 Fed. Reg. 70,888, 70,890 (stating that “any exemptions granted by the Utah Executive 

Secretary ‘are not applicable as a matter of federal law.’ ”) (citing Approval and Promulgation of Nonattainment 

Area Plan for Utah, 44 Fed. Reg. 28,688, 28,691 (May 16, 1979)).
Sierra Club SSM Petition to EPA Page 16 of 80

However, thirty years later, it is not clear how EPA reached the conclusion that 

exemptions granted by Utah would not apply as a matter of federal law or whether 

a court would honor EPA’s interpretation; the Utah rule itself makes no reference

to a reservation of federal authority. Instead, the rule merely states that 

information submitted by a source regarding a breakdown event would be “used 

by the executive secretary in determining whether a violation has occurred and/or 

the need of further enforcement action.”74

Difficult to find interpretations of SIP language should not form the basis of EPA approval. The 

problem with this approach is that the state’s interpretation of its regulations may (or may not) be 

known by parties attempting to enforce the SIP decades after the provisions were created. State 

agency opinions not explicitly set forth in the SIP itself (i.e., in the Code of Federal Regulations), 

even when published in the Federal Register, are insufficient to correct shortcomings in the plain 

language of the SIP. The regulations themselves should always reflect and ensure their intended 

operation. In order to ensure swift and accurate resolution of these actions, parties need to be 

able to rely on the accessible SIP language in the C.F.R. or at least on EPA’s web page rather 

than a letter that may or may not be in a file somewhere.

Petitioner requests that, when it considers SIP revisions, EPA require all terms, conditions, 

limitations and interpretations of the various SSM provisions be reflected in the unambiguous 

language of the SIPs themselves.

 74 Id.
Sierra Club SSM Petition to EPA Page 17 of 80

ANALYSIS OF INDIVIDUAL STATES’ SSM PROVISIONS

Alabama

SIP Provisions

The Alabama SIP has two generally applicable SSM provisions. The SIP authorizes the Director 

to “exempt on a case by case basis any exceedances of emission limits which cannot be 

reasonably avoided, such as during periods of start-up, shut-down or load charge” in a source’s 

permit. Ala. Admin. Code r. 335-3-14-.03(1)(h)(1), available at

http://www.epa.gov/region4/air/sips/al/335-3-14.pdf. The SIP also authorizes an exemption for 

emergencies. Id. 335-3-14-.03(1)(h)(2). Emergency is defined as:

any situation arising form [sic] sudden and reasonably unforeseeable events 

beyond the control of the facility, including acts of God, which situation require 

immediate corrective action to restore normal operation, and that causes the 

facility to exceed a technology based emission limitation under the permit, due to 

unavoidable increases in emissions attributable to the emergency. An emergency 

shall not include noncompliance to the extent caused by improperly designed 

equipment, lack of preventative maintenance, careless or improper operation, or 

operator error.

Id. 335-3-14-.03(1)(h)(2)(i). Such emergencies “may be exempted as being violations” if five 

conditions are met. Id. 335-3-14-.03(1)(h)(2)(ii). The Director has the sole authority to 

determine whether an emergency has occurred. Id. 335-3-14-.03(1)(h)(2)(iii). Although the case 

by case exemption of subsection (1)(h)(1) must be included in the permit itself, the regulations 

do not make clear whether the emergency provision must be included or whether it is generally 

applicable.

The Alabama SIP contains several pollutant and source category specific SSM provisions. Id.

335-3-4-.01(1)(c) (discretionary exemption from visible emission limits during SSM); id. 335-3-

5-.04(13) (SSM exemption for kraft pulp mills); id. 335-3-12-.03(2) (discretionary exemption 

from monitoring requirement during malfunction).

Analysis

Both of the generally applicable Alabama SSM provisions are inconsistent with the Clean Air 

Act and EPA policy. Both of the provisions provide exemptions, which is inconsistent with 

EPA’s policy that all excess emissions are violations. 1982 Memorandum at 1; 1999 

Memorandum at 1-2.

The start-up/shut-down/load change exemption is further inconsistent with EPA policy because 

the exemption is available for emissions that can be reasonably avoided. Each of the three 

situations is part of normal operation of a source. For these situations, EPA policy requires a 

higher showing to escape enforcement—the source must “adequately show[] that the excess 

could not have been prevented through careful planning and design and that bypassing of control 
Sierra Club SSM Petition to EPA Page 18 of 80

equipment was unavoidable to prevent loss of life, personal injury, or sever property damage.” 

1983 Memorandum, Attachment at 3.

The emergency provision appears to grant the Director sole authority to determine whether or not 

a violation has occurred. This type of provision may affect enforcement by EPA and citizens 

and is therefore not allowed. 1999 Memorandum at 3; Approval and Disapproval and 

Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. 

Reg. 8958, 8959-60 (Feb. 22, 2006) (disapproving section II.J.5 because it could be interpreted 

to preclude EPA and citizen enforcement).

Remedy

Both the start-up/shut-down/load change and the emergency provisions of Ala. Admin. Code r. 

335-3-14-.03(1)(h) are inconsistent with the Act and EPA policy and should be removed from 

the Alabama SIP. Alternatively, if the provisions are to be retained, they must be revised to 

clearly comply with the CAA and EPA guidance. The provisions must stipulate that all excess 

emissions are violations and preserve the authority of EPA and citizens to enforce the SIP 

standards and limitations.

Alaska

SIP Provisions

The Alaska SIP provides an excuse for “unavoidable” excess emissions. Alaska Admin. Code 

tit. 18 § 50.240, available at

http://yosemite.epa.gov/r10/airpage.nsf/283d45bd5bb068e68825650f0064cdc2/17d7254768b935

db88256516006de456?OpenDocument. Unavoidable excess emissions may occur during startup 

or shutdown, id. § 50.240(d), scheduled maintenance, id. § 50.240(e), or upsets, id. § 50.240(f). 

Section 50.240 states:

Excess emissions determined to be unavoidable under this section will be excused

and are not subject to penalty. This section does not limit the department’s power 

to enjoin the emission or require corrective action.

Id. § 50.240(b) (emphasis added). Relief under any of the three subsections (d), (e), or (f) 

requires that the source follow the reporting procedures of subsection (c), id. § 50.240(d), (e), (f), 

and the source must document any incident with “records made at the time the excess emissions 

occurred.” Id. § 50.240(g).

The showings required to obtain relief for excess emissions during startup or shutdown and 

scheduled maintenance reflect the EPA guidance on enforcement discretion almost verbatim. 

During startup or shutdown, excess emissions:

will be considered unavoidable if the owner, operator, or permittee ...

demonstrates that (1) the excess emissions could not have been prevented through 

careful planning and design; and (2) if a bypass of control equipment occurred, 
Sierra Club SSM Petition to EPA Page 19 of 80

the bypass was necessary to prevent loss of life, personal injury, or severe 

property damage.

Id. § 50.240(d); c.f. 1983 Memorandum, Attachment at 3.

During scheduled maintenance, excess emissions “will be considered unavoidable if the owner, 

operator, or permittee ... demonstrates that the excess emissions could not have been avoided

through reasonable design, better scheduling for maintenance, or better operation and 

maintenance practices.” Alaska Admin. Code tit. 18 § 50.240(e) (emphasis added); c.f. 1983 

Memorandum, Attachment at 3. The emphasized phrase indicates an additional element of the 

showing that is in addition to the EPA criteria.

The showing required to obtain relief for excess emissions during upsets, on the other hand, are 

much less stringent that EPA criteria. The owner, operator, or permittee must demonstrate that:

(1) the event was not caused by poor or inadequate design, operation, or 

maintenance or by any other reasonably preventable condition; (2) the event was 

not of a recurring pattern indicative of inadequate design, operation, or 

maintenance; and (3) when the operator knew or should have known that an 

emission standard or permit condition was being exceeded, the operator took 

immediate and appropriate corrective action in a manner consistent with good air 

pollution control practice for minimizing emissions during the event, taking into 

account the total emissions impact of the corrective action, including slowing or 

shutting down the source as necessary to minimize emissions.

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

Analysis

The Alaska SSM provision is contrary to the Act and inconsistent with EPA policy because it 

provides an excuse for excess emissions rather than considering all emissions violations of the 

applicable standard. 1982 Memorandum at 1; 1999 Memorandum at 1-2. The Alaska approach 

to SSM is unclear in its application to enforcement actions brought by EPA or citizens. Section 

50.240 is drafted as if the department were the sole enforcement authority. The Alaska provision 

is worded as if it were an affirmative defense to penalties yet uses the criteria for enforcement 

discretion and is ambiguous about what decision-making authority is empowered to determine 

whether an owner, operator, or permittee has met its burden of proof for relief. One plausible 

interpretation of subsection (b) is that the department itself determines what excess emissions 

“will be excused and are not subject to penalty.” Alaska Admin. Code tit. 18 § 50.240(b). 

Because the regulation could be interpreted to bar EPA and citizen enforcement, it violates the 

Clean Air Act and is contrary to EPA policy.

Remedy

Alaska should remove Alaska Admin. Code tit. 18 § 50.240 from its SIP, or revise it to clearly 

comply with the CAA and EPA guidance. The provision must stipulate that all excess emissions 
Sierra Club SSM Petition to EPA Page 20 of 80

are violations and preserve the authority of EPA and citizens to enforce the SIP standards and 

limitations.

Arizona

SIP Provisions

The Arizona SSM provision was approved not long after EPA issued the 1999 Memorandum, 

Revisions to the Arizona State Implementation Plan, 66 Fed. Reg. 48,087 (Sep. 18, 2001), and 

contains affirmative defenses for excess emissions caused by malfunctions, Ariz. Admin. Code § 

18-2-310(B) and startup or shutdown, id. § 18-2-310(C), available at

http://yosemite.epa.gov/R9/r9sips.nsf/AgencyProvision/87B02615BA87C78888256D160080CB

E8?OpenDocument. The two affirmative defenses are almost identical to the EPA guidance 

from the 1999 memorandum. One additional element in the Arizona defenses that does not 

appear in the 1999 memorandum is that “[d]uring the period of excess emissions there were no 

exceedances of the relevant ambient air quality standards established in Article 2 of this Chapter 

that could be attributed to the emitting source.” Id. § 18-2-310(B)(7), (C)(1)(f). Neither of the 

affirmative defenses applies to judicial actions for injunctive relief. Id. § 18-2-310(B), (C)(1).

Analysis

Affirmative defenses for excess emissions are inconsistent with the Clean Air Act, as explained 

above in section I of the Argument, and should be removed from the Arizona SIP.

EPA policy states that “affirmative defenses are not appropriate for areas and pollutants where a 

single source or small group of sources has the potential to cause an exceedance of the NAAQS 

or PSD increments.” 1999 Memorandum, Attachment at 3. The Arizona SIP makes a related 

demonstration one of the elements of its defenses: to prevail on either of the affirmative 

defenses, the source must prove that the ambient standards were, in fact, not exceeded. Ariz. 

Admin. Code §18-2-310(B)(7), (C)(1)(f). When EPA proposed to approve the affirmative 

defenses into the Arizona SIP, it stated “[w]e believe these rules are consistent with the Clean 

Air Act and the relevant policy and guidance regarding excess emissions,” referring to the 1999

Memorandum. Revisions to the Arizona State Implementation Plan, 66 Fed. Reg. 24,074, 

24,074 (proposed May 11, 2001). EPA noted that the proposed regulation disallowed the 

defenses “if during the period of excess emissions, there was an exceedance of the relevant 

ambient air quality standard that could be attributed to the emitting source.” Id. at 24,075. But 

including this element in the defense is not the same as disallowing affirmative defenses entirely 

where a single source or small group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments. EPA policy represents a judgment that sources with the power to 

cause an exceedance should be strictly controlled at all times, not just when they actually cause 

an exceedance. The incentive of such a source to emit pollutants at levels close to the threshold 

at which it causes an exceedance is thereby reduced. In these situations, “ the only appropriate 

means of dealing with excess emissions during malfunction, startup, and shutdown episodes is 

through an enforcement discretion approach.” 1999 Memorandum at 3.
Sierra Club SSM Petition to EPA Page 21 of 80

Table comparing elements of the EPA policy on affirmative defenses for malfunctions to 

the Arizona defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Malfunction as Discussed in 

1999 Memorandum

Elements of Arizona Affirmative Defense for 

Malfunctions

1. The excess emissions were caused by a sudden, 

unavoidable breakdown of technology, beyond the 

control of the owner or operator;

“The excess emissions resulted from a sudden and 

unavoidable breakdown of process equipment or air 

pollution control equipment beyond the reasonable 

control of the operator;” Ariz. Admin. Code § 18-2-

310(B)(1).

2. The excess emissions (a) did not stem from any 

activity or event that could have been foreseen and 

avoided, or planned for, and (b) could not have been 

avoided by better operation and maintenance practices;

“The excess emissions did not stem from any activity 

or event that could have been foreseen and avoided, or 

planned, and could not have been avoided by better 

operations and maintenance practices;” Id. § 18-2-

310(B)(8).

3. To the maximum extent practicable the air pollution 

control equipment or processes were maintained and 

operated in a manner consistent with good practice for 

minimizing emissions;

“The air pollution control equipment, process 

equipment, or processes were at all times maintained 

and operated in a manner consistent with good practice 

for minimizing emissions;” Id. § 18-2-310(B)(2).

4. Repairs were made in an expeditious fashion when 

the operator knew or should have known that 

applicable emission limitations were being exceeded. 

Off-shift labor and overtime must have been utilized, 

to the extent practicable, to ensure that such repairs 

were made as expeditiously as practicable;

“If repairs were required, the repairs were made in an 

expeditious fashion when the applicable emission 

limitations were being exceeded. Off-shift labor and 

overtime were utilized where practicable to ensure that 

the repairs were made as expeditiously as possible. If 

off-shift labor and overtime were not utilized, the 

owner or operator satisfactorily demonstrated that the 

measures were impracticable;” Id. § 18-2-310(B)(3).

5. The amount and duration of the excess emissions 

(including any bypass) were minimized to the 

maximum extent practicable during periods of such 

emissions;

“The amount and duration of the excess emissions 

(including any bypass operation) were minimized to 

the maximum extent practicable during periods of such 

emissions;” Id. § 18-2-310(B)(4).

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

“All reasonable steps were taken to minimize the 

impact of the excess emissions on ambient air quality;” 

Id. § 18-2-310(B)(5).

7. All emission monitoring systems were kept in 

operation if at all possible;

“All emissions monitoring systems were kept in 

operation if at all practicable;” Id. § 18-2-310(B)(9).

8. The owner or operator’s actions in response to the 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence;

“The owner or operator’s actions in response to the 

excess emissions were documented by 

contemporaneous records.” Id. § 18-2-310(B)(10).

9. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance; and

“The excess emissions were not part of a recurring

pattern indicative of inadequate design, operation, or 

maintenance;” Id. § 18-2-310(B)(6).

10. The owner or operator properly and promptly 

notified the appropriate regulatory authority.

“[T]he owner or operator of the source has complied 

with the reporting requirements of R18-2-310.01 ...” 

Id. § 18-2-310(B).
Sierra Club SSM Petition to EPA Page 22 of 80

Table comparing elements of the EPA policy on affirmative defenses for startup and 

shutdown to the Arizona defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Startup or Shutdown as 

Discussed in 1999 Memorandum

Elements of Arizona Affirmative Defense for Startup 

and Shutdown

1. The periods of excess emissions that occurred during 

startup and shutdown were short and infrequent and 

could not have been prevented through careful planning 

and design;

“The excess emissions could not have been prevented 

through careful and prudent planning and design;” Ariz. 

Admin. Code § 18-2-310(C)(1)(a).

2. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance;

[no corresponding element]

3. If the excess emissions were caused by a bypass (an 

intentional diversion of control equipment), then the 

bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage;

“If the excess emissions were the result of a bypass of 

control equipment, the bypass was unavoidable to 

prevent loss of life, personal injury, or severe damage to 

air pollution control equipment, production equipment, 

or other property;” Id. § 18-2-310(C)(1)(b).

4. At all times, the facility was operated in a manner 

consistent with good practice for minimizing emissions;

“The source's air pollution control equipment, process 

equipment, or processes were at all times maintained and 

operated in a manner consistent with good practice for 

minimizing emissions;” Id. § 18-2-310(C)(1)(c).

5. The frequency and duration of operation in startup or 

shutdown mode was minimized to the maximum extent 

practicable;

“The amount and duration of the excess emissions 

(including any bypass operation) were minimized to the 

maximum extent practicable during periods of such 

emissions;” Id. § 18-2-310(C)(1)(d).

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

“All reasonable steps were taken to minimize the impact 

of the excess emissions on ambient air quality;” Id. § 

18-2-310(C)(1)(e).

7. All emission monitoring systems were kept in 

operation if at all possible;

“All emissions monitoring systems were kept in 

operation if at all practicable;” Id. § 18-2-310(C)(1)(g).

8. The owner or operator’s actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence; and

“The owner or operator's actions in response to the 

excess emissions were documented by contemporaneous 

records.” Id. § 18-2-310(C)(1)(h).

9. The owner or operator properly and promptly notified 

the appropriate regulatory authority.

“[T]he owner or operator of the source has complied 

with the reporting requirements of R18-2-310.01 ...” Id.

§ 18-2-310(C)(1).

Remedy

Petitioner requests EPA to require Arizona to remove the affirmative defenses from its SIP as 

inconsistent with the Clean Air Act. In the alternative, EPA should require revision of the 

affirmative defenses so that they are not available to a single source or one of a small group of 

sources who have the potential to cause an exceedance of the NAAQS. The Arizona affirmative 

defense for excess emissions during startup and shutdown should also include the second 

element from the 1999 Memorandum, Attachment at 6: that “[t]he excess emissions were not 

part of a recurring pattern indicative of inadequate design, operation, or maintenance.”
Sierra Club SSM Petition to EPA Page 23 of 80

Maricopa County

SIP Provisions

The Maricopa County Air Pollution Control Regulations contain an SSM provision that is 

identical to the Arizona state provision. Maricopa County Air Pollution Control Regulation 3, 

Rule 140, §§ 401 (affirmative defense for malfunctions), 402 (affirmative defense for startup and 

shutdown), approved by EPA at Revision to the Arizona State Implementation Plan, Maricopa 

County Environmental Services Department, 67 Fed. Reg. 54,957 (Aug. 27, 2002), and available 

at

http://yosemite.epa.gov/R9/r9sips.nsf/AgencyProvision/0514F87920A9CD0185256FD6005AE5

88/$file/Maricopa+140.pdf?OpenElement.

Analysis

The provisions of the Maricopa County regulations have the same problems as the Arizona state 

regulations. Affirmative defenses should not be allowed in any SIP, as discussed above in 

section I of the Argument. Alternatively, if the affirmative defenses are to remain in the SIP, the 

elements related to exceedances of the ambient standards are inappropriately permissive and do 

not comply with EPA guidance. See Rule 140, §§ 401.7, 402.1(f). The affirmative defense for 

startup and shutdown omits the second element from the 1999 Memorandum, Attachment at 6,

that “[t]he excess emissions were not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance.”

Remedy

Petitioner requests EPA to require Arizona and/or Maricopa County to remove the affirmative 

defenses from the SIP as inconsistent with the Clean Air Act. In the alternative, EPA should 

require revision of the affirmative defenses so that they are not available to a single source or one 

of a small group of sources who have the potential to cause an exceedance of the NAAQS. The 

Maricopa County affirmative defense for excess emissions during startup and shutdown should 

also include the second element from the 1999 Memorandum, Attachment at 6: that “[t]he excess 

emissions were not part of a recurring pattern indicative of inadequate design, operation, or 

maintenance.”

Pima County

SIP Provisions

The Rules and Regulations of the Pima County Air Pollution Control District contain an 

enforcement discretion approach to excess emissions during SSM conditions. Rule 706, 

approved by EPA at Arizona State Implementation Plan Revision, 47 Fed. Reg. 16,326 (Apr. 16, 

1982), and available at

http://yosemite.epa.gov/R9/r9sips.nsf/AgencyProvision/D66F2373B11DEF2C882569DF008049

FF/$file/az-pi+706.pdf?OpenElement. First, any source must “notify the Control Officer of any 

occurrence during malfunction, startup, or shutdown in which a control standards is violated.” 

Rule 706(A). Subsection D then provides that: “[t]he Control Officer may defer prosecution of a 
Sierra Club SSM Petition to EPA Page 24 of 80

Notice of Violation issued for an exceedance of a control standard if ...” certain conditions are 

met. Rule 706(D).

Analysis

Although the rule properly classifies all excess emissions as violations, the power of the Control 

Officer to “defer prosecution” in Rule 706 is ambiguous. That power could be construed to 

preclude enforcement by EPA or citizens, contrary to the enforcement structure of the CAA. 

1999 Memorandum at 3; Approval and Disapproval and Promulgation of Colorado Affirmative 

Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

EPA should require Arizona and/or Pima County to revise Rule 706 of the Rules and 

Regulations of the Pima County Air Pollution Control District so that is it clear that a decision by 

the Control Officer does not affect EPA or citizen enforcement.

Arkansas

SIP Provisions

The Arkansas SIP contains a pollutant specific SSM exemption for the excess emission of 

volatile organic compounds (“VOCs”) in Pulaski County:

Emissions in excess of these Regulations which are temporary and result solely 

from a sudden and unavoidable breakdown, malfunction or upset of process or 

emission control equipment, or sudden and unavoidable upset of operation will 

not be considered a violation of these Regulations ...

014-01-1 Ark. Code R. § 19.1004(H) (emphasis added). Arkansas also appears to have copied 

the affirmative defense of 40 C.F.R. § 70.6(g) into its SIP without clearly limiting its application 

to operating permits. Id. § 19.602. See 

http://yosemite.epa.gov/r6/Sip0304.nsf/home?Openview&Start=1&Count=30&Expand=2. 

Analysis

The pollutant-specific SSM exemption for the excess emission of VOCs in Pulaski County is 

contrary to the fundamental requirement that all excess emissions be considered violations. 1982 

Memorandum at 1; 1999 Memorandum at 1 & Attachment at 1-2. The emergency defense in 

014-01-1 Ark. Code R. § 19.602 is a Title V regulation that should not be a part of the Arkansas 

SIP.

Remedy

Arkansas should remove 014-01-1 Ark. Code R. §§ 19.1004(H) and 19.602 from its SIP.
Sierra Club SSM Petition to EPA Page 25 of 80

Colorado

SIP Provisions

The Colorado SIP provides affirmative defenses “to owners and operators for civil penalty 

actions for excess emissions during periods of malfunction,” 5 Colo. Code Regs. § 1001-2(II.E), 

and “during periods of startup and shutdown,” id. § 1001-2(II.J). These provisions were recently 

approved by EPA. Approval and Disapproval and Promulgation of Colorado Affirmative 

Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958 (Feb. 22, 2006); Approval and 

Promulgation of Colorado Affirmative Defense Provisions for Malfunctions, 73 Fed. Reg.

45,879 (Aug. 7, 2008); available at

https://yosemite.epa.gov/R8/R8Sips.nsf/e5e850cc767bc8b3872573a9004cad73/a6a06f7b851673

e987256b7200510e78?OpenDocument.

As shown below, the Colorado affirmative defenses reflect the EPA policy on affirmative 

defenses from the 1999 Memorandum almost word for word. Both defenses are limited to 

actions for civil penalties, 5 Colo. Code Regs. § 1001-2(II.E.1), (II.J.1), and are unavailable in 

actions seeking injunctive relief, id. § 1001-2(II.E.3), (II.J.3). Neither defense is available in 

actions seeking to enforce NSPS, NESHAP or other “federally promulgated performance 

standards or emission limits.” Id. § 1001-2(II.E.4), (II.J.4).

The affirmative defense for startup and shutdown “cannot be used by a single source or small 

group of sources where the excess emissions have the potential to cause an exceedance of the 

ambient air quality standards or [PSD] increments,” id. § 1001-2 (II.J.4), which reflects another 

of the EPA policy requirements. The affirmative defense for malfunctions, in contrast, takes a 

different approach to this requirement of the EPA policy. The affirmative defense for 

malfunctions is not explicitly limited to situations where no single source or small group of 

sources have the potential to cause an exceedance of the NAAQS or PSD increments. Instead, 

the defense includes an additional element: that “[d]uring the period of excess emissions, there 

were no exceedances of the relevant ambient air quality standards established in the 

Commissions’ Regulations that could be attributed to the emitting source.” Id. § 1001-

2(II.E.1.j).

Analysis

Affirmative defenses for excess emissions are inconsistent with the Clean Air Act, as explained 

above in section I of the Argument, and should be removed from the Colorado SIP. 

Alternatively, if the affirmative defenses are to remain in the SIP, the affirmative defense for 

malfunctions should be revised. According to EPA policy, affirmative defenses are not 

appropriate where a single source or a small group of sources has the potential to cause an 

exceedance of the NAAQS or PSD increments. 1999 Memorandum, at 2-3 & Attachment at 1-2, 

3. The Colorado SIP allows an affirmative defense for malfunctions in such situations. 

Although the source must prove that there were, in fact, “no exceedances of the relevant ambient 

air quality standards ... that could be attributed to the emitting source,” 5 Colo. Code Regs. § 

1001-2(II.E.1.j), this showing does not have the same deterrent effect. Precluding affirmative 

defense in areas where the ambient air quality is only precariously below the NAAQS or PSD 

increments encourages owners and operators to more scrupulously plan their operations and 
Sierra Club SSM Petition to EPA Page 26 of 80

design their facilities. Sources with the potential to cause an exceedance should be more strictly 

controlled at all times and should not be able to mire enforcement proceedings in the questions of 

whether or not the NAAQS or PSD increments were exceeded as a matter of fact.

Table comparing elements of the EPA policy on affirmative defenses for malfunctions to 

the Colorado defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Malfunctions as Discussed in 

1999 Memorandum

Elements of Colorado’s Affirmative Defense for 

Malfunctions

1. The excess emissions were caused by a sudden, 

unavoidable breakdown of technology, beyond the 

control of the owner or operator;

“The excess emissions were caused by a sudden, 

unavoidable breakdown of equipment, or a sudden, 

unavoidable failure of a process to operate in the normal 

or usual manner, beyond the reasonable control of the 

owner or operator;” 5 Colo. Code Regs. § 1001-

2(II.E.1.a).

2. The excess emissions (a) did not stem from any 

activity or event that could have been foreseen and 

avoided, or planned for, and (b) could not have been 

avoided by better operation and maintenance practices;

“The excess emissions did not stem from any activity or 

event that could have reasonably been foreseen and 

avoided, or planned for, and could not have been 

avoided by better operation and maintenance practices;” 

Id. § 1001-2(II.E.1.b).

3. To the maximum extent practicable the air pollution 

control equipment or processes were maintained and 

operated in a manner consistent with good practice for 

minimizing emissions;

“At all times, the facility was operated in a manner 

consistent with good practices for minimizing emissions. 

This Section II.E.1.i is intended solely to be a factor in 

determining whether an affirmative defense is available 

to an owner or operator, and shall not constitute an 

additional applicable requirement;” Id. § 1001-

2(II.E.1.i).

4. Repairs were made in an expeditious fashion when the 

operator knew or should have known that applicable 

emission limitations were being exceeded. Off-shift 

labor and overtime must have been utilized, to the extent 

practicable, to ensure that such repairs were made as 

expeditiously as practicable;

“Repairs were made as expeditiously as possible when 

the applicable emission limitations were being 

exceeded;” Id. § 1001-2(II.E.1.c).

5. The amount and duration of the excess emissions 

(including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions;

“The amount and duration of the excess emissions 

(including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions;” Id.

§ 1001-2(II.E.1.d).

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

“All reasonably possible steps were taken to minimize 

the impact of the excess emissions on ambient air 

quality;” Id. § 1001-2(II.E.1.e).

7. All emission monitoring systems were kept in 

operation if at all possible;

“All emissions monitoring systems were kept in 

operation (if at all possible);” Id. § 1001-2(II.E.1.f).

8. The owner or operator’s actions in response to the 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence;

“The owner or operator's actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs or other relevant 

evidence;” Id. § 1001-2(II.E.1.g).

9. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance; and

“The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance;” Id. § 1001-2(II.E.1.h).

10. The owner or operator properly and promptly 

notified the appropriate regulatory authority.

“[T]he owner or operator of the facility must meet the 

notification requirements of Section II.E.2. in a timely 

manner ...” Id. § 1001-2(II.E.1).
Sierra Club SSM Petition to EPA Page 27 of 80

Table comparing elements of the EPA policy on affirmative defenses for startup and 

shutdown to the Colorado defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Startup or Shutdown as 

Discussed in 1999 Memorandum

Elements of Colorado Affirmative Defense for 

Startup and Shutdown

1. The periods of excess emissions that occurred during 

startup and shutdown were short and infrequent and 

could not have been prevented through careful planning 

and design;

“The periods of excess emissions that occurred during 

startup and shutdown were short and infrequent and 

could not have been prevented through careful planning 

and design;” 5 Colo. Code Regs. § 1001-2(II.J.1.a).

2. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or

maintenance;

“The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation or 

maintenance;” Id. § 1001-2(II.J.1.b).

3. If the excess emissions were caused by a bypass (an 

intentional diversion of control equipment), then the 

bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage;

“If the excess emissions were caused by a bypass (an 

intentional diversion of control equipment), then the 

bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage;” Id. § 1001-

2(II.J.1.c).

4. At all times, the facility was operated in a manner 

consistent with good practice for minimizing emissions;

“At all times, the facility was operated in a manner 

consistent with good practices for minimizing emissions. 

This subparagraph H is intended solely to be a factor in 

determining whether an affirmative defense is available 

to an owner or operator, and shall not constitute an 

additional applicable requirement.” Id. § 1001-

2(II.J.1.h).

5. The frequency and duration of operation in startup or 

shutdown mode was minimized to the maximum extent 

practicable;

“The frequency and duration of operation in startup and 

shutdown periods were minimized to the maximum 

extent practicable;” Id. § 1001-2(II.J.1.d).

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

“All possible steps were taken to minimize the impact of 

excess emissions on ambient air quality;” Id. § 1001-

2(II.J.1.e).

7. All emission monitoring systems were kept in 

operation if at all possible;

“All emissions monitoring systems were kept in 

operation (if at all possible);” Id. § 1001-2(II.J.1.f).

8. The owner or operator’s actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence; and

“The owner or operator's actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs or other relevant 

evidence;” Id. § 1001-2(II.J.1.g).

9. The owner or operator properly and promptly notified 

the appropriate regulatory authority.

“[T]he owner or operator of the facility must meet the 

notification requirements of Paragraph 2 in a timely 

manner ...” Id. § 1001-2(II.J.1).

Remedy

The affirmative defense provisions of 5 Colo. Code Regs. § 1001-2(II.E) and (II.J) should be 

removed as inconsistent with the Clean Air Act. Alternatively, the affirmative defense for 

malfunctions in subsection (II.E) should not be available where a single source or a small group 

of sources has the potential to cause an exceedance of the NAAQS or PSD increments.
Sierra Club SSM Petition to EPA Page 28 of 80

Delaware

SIP Provisions

The Delaware SIP contains no generally applicable SSM regulations. However, there are several 

exemptions for excess emissions during startup and shutdown when those periods are controlled 

by an operating permit. Delaware SIP regulations available at

http://yosemite.epa.gov/r3/r3sips.nsf/SIPIndex!OpenForm&Start=1&Count=1000&Expand=1.2

&Seq=2. 

For example, in the section governing “Particulate Emissions from Fuel Burning Equipment,” 

the startup/shutdown provision reads:

The provisions of this Regulation shall not apply to the start-up and shutdown of 

equipment which operates continuously or in an extended steadystate when 

emissions from such equipment during start-up and shutdown are governed by an 

operation permit issued pursuant to the provisions of 2.0 of 7 DE Admin. Code 

1102.

7-1100-1104 Del. Code Regs. § 1.5. There are several identical (and nearly identical) provisions 

to the same effect. 7-1100-1105 Del. Code Regs. § 1.7 (Particulate Emissions from Industrial 

Process Operations); 7-1100-1108 Del. Code Regs. § 1.2 (Sulfur Dioxide Emissions from Fuel 

Burning Equipment); 7-1100-1109 Del. Code Regs. § 1.4 (Emissions of Sulfur Compounds 

From Industrial Operations); 7-1100-1114 Del. Code Regs. § 1.3 (Visible Emissions); 7-1100-

1124 Del. Code Regs. § 1.4 (Control of Volatile Organic Compound Emissions); 7-1100-1142 

Del. Code Regs. § 2.3.5 (Control of NOX Emissions from Industrial Boilers and Process Heaters 

at Petroleum Refineries).

Analysis

The exemptions in each of these provisions are dependent on alternative provisions in an 

operating permit under 7-1100-1102 Del. Code Regs. § 2.0. However, there seems to be no 

mechanism that constrains those alternative provisions. See id. It appears that the State may 

allow sources to circumvent otherwise applicable limits during startup and shutdown by creating 

exemptions in the federally enforceable state operating permit program. See Approval and 

Promulgation of Delaware Minor New Source Review and federally Enforceable State Operating 

Permit Program, 63 Fed. Reg. 16,751 (Apr. 6, 1998) (explaining the program). This process 

does not comply with EPA’s requirements that all excess emissions be considered violations of 

the applicable standards. 1982 Memorandum at 1; 1983 Memorandum, Attachment at 2-3.

If the intent of these SIP provisions is to provide source category specific rules for startup and 

shutdown, this process fails to meet the requirements of the Act and EPA policy. Narrowlytailored source-specific rules are permissible when set in consultation with EPA, under 

conditions that are wholly lacking from the Delaware approach. But the underlying problem is 

that such alternative limits must be approved by EPA to be part of the SIP. 1999 Memorandum, 

Attachment at 4-5. It appears that the State has discretion as to what alternative limitations for 

startup and shutdown are included in the operating permits under 7-1100-1102 Del. Code Regs. § 
Sierra Club SSM Petition to EPA Page 29 of 80

2.0. Thus, each of these provisions authorizes Delaware to create exemptions for excess 

emissions in the operating permits.

Remedy

The following provisions should be removed from the Delaware SIP: 7-1100-1104 Del. Code 

Regs. § 1.5; 7-1100-1105 Del. Code Regs. § 1.7; 7-1100-1108 Del. Code Regs. § 1.2; 7-1100-

1109 Del. Code Regs. § 1.4; 7-1100-1114 Del. Code Regs. § 1.3; 7-1100-1124 Del. Code Regs. 

§ 1.4; 7-1100-1142 Del. Code Regs. § 2.3.5.

District of Columbia

SIP Provisions

The SIP for the District of Columbia has no generally applicable SSM provision. Generally, air 

pollution control equipment must be kept in operation whenever the source is operating. D.C. 

Mun. Regs. tit. 20, § 107.1, available at

http://yosemite.epa.gov/r3/r3sips.nsf/9eeb842c677f8f5d85256cfd004c3498/047a019ea373e76f8

5256d25006023ef!OpenDocument. However, the Mayor has the power to authorize continued 

operation when air pollution controls are shut down:

The Mayor shall by notice to the owner or operator permit the continued 

operation of the stationary source for the time period proposed, or for the lesser 

time as the Mayor finds reasonable, or the Mayor may order the owner or operator 

to discontinue operation of the stationary source until the maintenance is 

completed, or the malfunctioning equipment is repaired.

Id. § 107.3.

The SIP also contains several source category and pollutant specific SSM provisions. The SIP 

contains alternative limits for visible emissions during startup and shutdown, id. §§ 606.1, 606.2, 

and an exemption from NOX limits for “[e]mergency standby engines operated less than five 

hundred (500) hours during any consecutive twelve (12) month period,” id. § 805(c)(2). For 

visible emissions during malfunctions the SIP mentions an affirmative defense:

Violation of standards set forth in this section, as a result of unavoidable 

malfunction, despite the conscientious employment of control practices, shall 

constitute an affirmative defense on which the discharger shall bear the burden of 

proof. Periods of malfunction shall cease to be unavoidable malfunctions if 

reasonable steps are not taken to eliminate the malfunction within a reasonable 

time.

Id. § 606.4. The elements of this “affirmative defense” are not clearly laid out, and the term 

affirmative defense is not defined in chapter 600, nor in section 199 of chapter 1, the generally 

applicable definitions section. See id. §§ 600.1-699.2; id. § 199.1.
Sierra Club SSM Petition to EPA Page 30 of 80

Analysis

The effect of the Mayor’s authorization of scheduled maintenance under section § 107.3 is not 

clear. One plausible interpretation of the section would excuse any excess emissions during the 

time that the Mayor had authorized operation without air pollution control equipment. This 

interpretation is contrary to the enforcement scheme of the Act because it allows a decision by 

the state to preclude EPA and citizen enforcement. 1999 Memorandum at 3; Approval and 

Disapproval and Promulgation of Colorado Affirmative Defense Provisions for Startup and 

Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

The source category and pollutant specific exemptions violate the fundamental requirement that 

all excess emissions be considered violations and interfere with EPA and citizen enforcement. 

1999 Memorandum at 3; Approval and Disapproval and Promulgation of Colorado Affirmative 

Defense Provisions for Startup and Shutdown, 71 Fed. Reg. at 8959-60. None of the exemptions 

appear to meet the criteria for a source category specific rule from EPA’s policy. 1999 

Memorandum, Attachment 4-5.

The “affirmative defense” of section 606.4 is too ambiguous to be considered an affirmative 

defense as EPA intends that term to be used. In any case, affirmative defenses for excess 

emissions are inconsistent with the Clean Air Act and should be removed from the SIP.

Remedy

The District of Columbia should clarify that the authorization to shut down air pollution control 

equipment in D.C. Mun. Regs. tit. 20, § 107.3 does not exempt the source from compliance with 

emission limits and standards. The District of Columbia should remove the pollutant specific 

provisions in D.C. Mun. Regs. tit. 20, §§ 606.1, 606.2, 606.4 and 805(c)(2) from the SIP.

Florida

SIP Provisions

The Florida SIP provides an automatic exemption for excess emissions due to SSM, Fla. Admin. 

Code Ann. r. 62-210.700(1), available at http://www.epa.gov/region4/air/sips/fl/Chapter-62-

210.pdf, as well as exemptions specifically for fossil fuel steam generators during startup and 

shutdown, id. 62-210.700 (2), and boiler cleaning and load change, id. 62-210.700 (3). Key 

portions of the SIP provision read as follows:

(1) Excess emissions resulting from startup, shutdown or malfunction of any 

source shall be permitted providing (1) best operational practices to minimize 

emissions are adhered to and (2) the duration of excess emissions shall be 

minimized but in no case exceed two hours in any 24 hour period unless 

specifically authorized by the Department for longer duration.

(2) Excess emissions from existing fossil fuel steam generators resulting from 

startup or shutdown shall be permitted provided that best operational practices 

to minimize emissions are adhered to and the duration of excess emissions 

shall be minimized.
Sierra Club SSM Petition to EPA Page 31 of 80

(3) Excess emissions from existing fossil fuel steam generators resulting from 

boiler cleaning (soot blowing) and load change shall be permitted provided 

the duration of such excess emissions shall not exceed 3 hours in any 24-hour 

period and visible emissions shall not exceed Number 3 of the Ringelmann 

Chart (60 percent opacity), and providing (1) best operational practices to 

minimize emissions are adhered to and (2) the duration of excess emissions 

shall be minimized.

(4) Excess emissions which are caused entirely or in part by poor maintenance, 

poor operation, or any other equipment or process failure which may 

reasonably be prevented during startup, shutdown, or malfunction shall be 

prohibited.

Id. r. 62-210.700 (1)-(4) (emphasis added).

The Florida SIP contains several other pollutant and source category specific SSM provisions. 

Id. r. 62-296.401(7)(b)(1) (alternative limit for visible emissions from air curtain incinerators 

during startup); id. r. 62-296.404(1)(a)(2) (SSM exemption for visible emissions from kraft pulp 

mills); id. r. 62-296.404(3)(a)(3) (exemption to prohibition of venting sulfur for emergency and 

essential maintenance); id. r. 62-296.404(6)(c) (exempting periods of SSM from consideration of 

excess sulfur emissions for kraft recovery furnaces, lime kilns and calciners and other regulated 

non-NSPS total reduced sulfur emissions units); id. r. 62-296.570(4)(b)(c) (SSM exemption to 

RACT limits for NOX).

Analysis

The Florida SIP is inconsistent with the CAA and EPA policy. Subsections (1) to (3) state that 

excess emissions “shall be permitted,” contrary to the fundamental requirement that all excess 

emissions be considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1 & 

Attachment at 1-2. This permission appears impermissibly to preclude enforcement of the 

limitations not only by the state, but also by EPA and citizens. 1999 Memorandum at 3; 

Approval and Disapproval and Promulgation of Colorado Affirmative Defense Provisions for 

Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006). Further, the conditions 

specified in subsection (3) are normal condition of operation, and as such are not eligible for any 

relief under EPA guidance. 1983 Memorandum, Attachment at 2.

Subsection (4) contains substantive provisions that appear to carve away parts of the exemptions 

in subsections (1) to (3). But the regulations do not specify the procedure by which the factual 

premises of any of these subsections are to be proven.

Remedy

Florida should remove Fla. Admin. Code Ann. r. 62-210.700 from the SIP in its entirety. 

Alternatively, if the provision is to be retained, it must be revised to clearly comply with the 

CAA and EPA guidance. The provision must stipulate that all excess emissions are violations 

and preserve the authority of EPA and citizens to enforce the SIP standards and limitations.
Sierra Club SSM Petition to EPA Page 32 of 80

Georgia

SIP Provisions

The Georgia SIP provides exemptions for excess emissions during startup, shutdown and 

malfunction. Ga. Comp. R. & Regs. 391-3-1.02(2)(a)(7), available at

http://www.epa.gov/region4/air/sips/ga/391-3-1.02.pdf. The provision reads:

(i) Excess emissions resulting from startup, shutdown, malfunction of any source 

which occur through ordinary diligence is employed shall be allowed

provided that (I) the best operational practices to minimize emissions are 

adhered to, and (II) all associated air pollution control equipment is operated 

in a manner consistent with good air pollution control practice for minimizing 

emissions, and (III) the duration of excess emissions is minimized.

(ii) Excess emissions which are caused entirely or in part by poor maintenance, 

poor operation, or any other equipment or process failure which may 

reasonably be prevented during startup, shutdown or malfunction are 

prohibited and are violations of this Chapter (391-3-1).

(iii)The provisions of this paragraph 7. shall apply only to those sources which are 

not subject to any requirement under section (8) of this Rule, (i.e. Rule 391-3-

1-.02) or any requirement of 40 CFR, Part 60, as amended, concerning New 

Source Performance Standards.

Id. (emphasis added).

Analysis

The Georgia SSM provision is inconsistent with the Act and EPA policy. The provision states 

that excess emissions “shall be allowed,” contrary to the fundamental requirement that all excess 

emissions be considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1 & 

Attachment at 1-2. Although the regulation provides substantive criteria (that fall far short of 

EPA policy), it is neither an affirmative defense nor enforcement discretion. The regulations are 

susceptible to interpretation as an enforcement exemption, precluding EPA and citizen 

enforcement as well as state enforcement. 1999 Memorandum at 3; Approval and Disapproval 

and Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 

Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

Georgia should remove Ga. Comp. R. & Regs. 391-3-1.02(2)(a)(7) from its SIP. Alternatively, 

if the provision is to be retained, it must be revised to clearly comply with the CAA and EPA 

guidance. The provision must stipulate that all excess emissions are violations and preserve the 

authority of EPA and citizens to enforce the SIP standards and limitations.
Sierra Club SSM Petition to EPA Page 33 of 80

Idaho

SIP Provisions

Idaho’s SIP contains what appears intended to be an enforcement discretion approach to excess 

emissions during SSM. Idaho Admin. Code r. 58.01.01.131; see Approval and Promulgation of 

Implementation Plan for Idaho and Designation of Areas for Air Quality Planning Purposes, 67 

Fed. Reg. 52,666, 52,668 (proposed Aug. 13, 2002); available at

http://yosemite1.epa.gov/r10/airpage.nsf/283d45bd5bb068e68825650f0064cdc2/def38ce51d3fb9

c488256c8a00651d94?OpenDocument. The provision provides that “... the Department shall 

consider the sufficiency of the information submitted and the following criteria to determine if an 

enforcement action to impose penalties is warranted ... .” Idaho Admin. Code r. 

58.01.01.131.02.

The next section clarifies the effect of the decision:

Any decision by the Department under Subsection 131.02 shall not excuse the 

owner or operator from compliance with the relevant emission standard and shall 

not preclude the Department from taking an enforcement action to enjoin the 

activity causing the excess emissions. Any decision made by the Department 

under Subsection 131.02 shall not preclude the Department from taking an 

enforcement action for future or other excess emission events.

Id. r. 58.01.01.131.03.

Analysis

Idaho’s SIP very clearly spells out the effect of the Department’s decision upon the Department 

itself, but is says nothing about what effect the decision has on EPA or citizens. This omission 

could possibly be interpreted contrary to the Act and to EPA policy. The regulation clearly gives 

the Department the authority to decide whether excess emissions “warrant enforcement action.” 

Id. r. 58.01.01.131.02. This phrase could simply mean that the Department decides that the State 

will not proceed to enforce. But it could also be interpreted to give the Department authority to 

decide that enforcement is not warranted at all, by anyone, which would preclude action by EPA 

and by citizens both for civil penalties and for injunctive relief. This interpretation is 

inconsistent with the Act and EPA policy. 1999 Memorandum at 3.

Remedy

Idaho should clarify, in Idaho Admin. Code r. 58.01.01.131.03, that the Department’s decision 

that enforcement is not warranted has no effect on EPA or citizen enforcement.

Illinois

SIP Provisions

Illinois’ generally applicable SSM regulations appear at Ill. Admin. Code tit. 35, §§ 201.261, 

201.262 and 201.265, available at
Sierra Club SSM Petition to EPA Page 34 of 80

http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By%20State%20Main%20View!OpenVi

ew&Start=1&Count=30&Expand=1#1. Section 201.261(1) invites sources to request advance

permission to continue operation during malfunctions or to violate standards or limitations 

during startup:

A request for permission to continue to operate during a malfunction or 

breakdown, if desired, shall be included as an integral part of the application for 

an Operating Permit pursuant to Rule 103 ... . When the standards or limitations 

of Part 2 [Subchapter c] of this Chapter will be violated during startup, a request 

for permission to violate such standards or limitations shall be an integral part of 

the application for an Operating Permit pursuant to Rule 103 [Subpart D] ... .

Ill. Admin. Code tit. 35, § 201.261(1) (emphasis added).

Section 201.262 specifies the conditions on which the Illinois Environmental Protection Agency 

will such grant advance permission:

Permission shall not be granted to allow continued operation during a malfunction 

or breakdown unless the applicant submits proof to the Agency that: such 

continued operation is necessary to prevent injury to persons or severe damage to 

equipment; or that such continued operation is required to provide essential 

services; provided, however, that continued operation solely for the economic 

benefit of the owner or operator shall not be a sufficient reason for granting of 

permission. Permission shall not be granted to allow violation of the standards or 

limitations of Part 2 [Subchapter c] of this Chapter during startup unless the 

applicant has affirmatively demonstrated that all reasonable efforts have been 

made to minimize startup emissions, duration of individual startups and frequency 

of startups.

Id. § 201.262.

Section 201.265 specifies the effect of permission granted under section 201.262:

The granting of permission to operate during a malfunction or breakdown, or to 

violate the standards or limitations of Part 2 [Subchapter c] of this Chapter during 

startup, and full compliance with any terms and conditions connected therewith, 

shall be a prima facie defense to an enforcement action alleging a violation of 

paragraph (a) of this Rule 105 [Section 201.149], of the emission and air quality 

standards of this Chapter, and of the prohibition of air pollution during the time of 

such malfunction, breakdown or startup.

Id. § 201.265.

The Illinois SIP contains several other pollutant and source category specific SSM provisions. 

Id. § 201.404 (exemption to monitoring requirements for malfunction); id. § 205.225 (exemption 

of SSM emissions from emissions reduction market system, whose purpose is to “attain the 

[NAAQS] for ozone and to meet the requirements of the Clean Air Act”); id. § 205.750(c)(1) 
Sierra Club SSM Petition to EPA Page 35 of 80

(exemption for emissions during emergency from reduction market system, whose purpose is to 

“attain the [NAAQS] for ozone and to meet the requirements of the Clean Air Act”); id. § 

218.432(a)(3) (exemption for emergency relief discharge); id. § 218.501(e) (exemption for 

emergency relief discharge); id. § 219.581(a)(3) (exemption for emergency relief discharge).

Analysis

The Illinois regulations unambiguously authorize the Agency to grant advance exemptions for 

violations of emission limits during startup, and potentially during malfunctions as well. See

Order Granting in Part and Denying in Part Petition for Objection to Permit, In the Matter of 

United States Steel Corporation - Granite City Works, CAAPP No. 96030056, 39 (Jan. 1, 2011)

(interpreting permit conditions based on Illinois SSM SIP provisions) [Granite City Steel 

CAAPP Order]. The Agency may authorize continued operation during malfunctions, even 

though the source may be violating its emission limits. Ill. Admin. Code tit. 35, §§ 201.261, 

201.262. That permission is a defense in any later enforcement action. Id. § 201.265. This 

regulatory structure – where a defense attaches at the state’s discretion – can be interpreted to 

violate the fundamental requirement that all excess emissions must be considered violations and 

the enforcement scheme of Title I of the CAA.

Illinois’s approach to excess emissions during malfunction and startup appears selfcontradictory. On one hand, the source is to request permission at the permitting stage – before a 

malfunction or excess emissions have occurred. But under EPA policy, the exercise of 

enforcement discretion (or potential availability of an affirmative defense) depends on the 

circumstances of each individual instance of malfunction or excess emissions – facts and 

circumstances that cannot be known in advance. See In the Matter of United States Steel 

Corporation – Granite City Works, EPA Order Granting in Part and Denying in Part Petition for

Objection to Permit (Jan. 31, 2011)(“EPA Title V Order re U.S. Steel”), available at

http://www.epa.gov/region7/air/title5/petitiondb/petitions/uss_response2009.pdf, at 39 (Advance 

permission to operate during these periods is inconsistent with the SIP because “[t]he specific 

proof required in each instance usually will depend on the nature and the cause of the 

malfunction or breakdown.”),.

Illinois has argued that its SIP provisions do not provide for advance permission to violate

emission limits, but rather authorize case-by-case claims of exemption. Ill. Envtl. Prot. Agency, 

Statement of Basis for a Planned Revision of the CAAPP Permit for U.S. Steel Corp. Granite 

City Works (Mar. 15, 2011), at 26-27 (interpreting sections 201.261, 201.262 and 201.265). 

EPA disagreed. EPA Title V Order re U.S. Steel at 39. These divergent interpretations by U.S. 

EPA and Illinois demonstrate that, at the least, the SIP terms are not clear on this critical issue. 

Moreover, the state’s argument is undercut by the language in the SIP, purporting to grant 

advance permission to operate during malfunctions and to violate emission standards during 

startup.

The “prima facie defense” is ambiguous in its operation. A true affirmative defense is “in the 

context of an enforcement proceeding, a response or defense put forward by a defendant, 

regarding which the defendant has the burden of proof, and the merits of which are 

independently and objectively evaluated in a judicial or administrative proceeding.” 1999 

Memorandum, Attachment at 2 n.4. It is not clear whether the “prima facie defense” is to be 
Sierra Club SSM Petition to EPA Page 36 of 80

evaluated independently and objectively in a judicial or administrative proceeding or whether the 

Agency determines its availability. In either case, section 201.265 should be removed from the 

SIP. If the “prima facie defense” is supposed to be an “affirmative defense,” as EPA defines that 

term, the provision should be removed from the SIP as inconsistent with the enforcement 

structure of the Clean Air Act. If, on the other hand, the “prima facie defense” is anything short 

of the “affirmative defense,” it clearly has the potential to interfere with EPA and citizen 

enforcement.

Remedy

Illinois should remove Ill. Admin. Code tit. 35, §§ 201.261, 201.262 and 201.265 from its SIP. 

Alternatively, if the provisions are to be retained, they must be revised to clearly comply with the 

CAA and EPA guidance. The provisions must stipulate that all excess emissions are violations 

and preserve the authority of EPA and citizens to enforce the SIP standards and limitations.

Indiana

SIP Provisions

The Indiana SIP provides an exemption for malfunctions:

Emissions temporarily exceeding the standards which are due to malfunctions of 

facilities or emission control equipment shall not be considered a violation of the 

rules provided the source demonstrates that:

(1) All reasonable measures were taken to correct, as expeditiously as 

practicable, the conditions causing the emissions to exceed the allowable 

limits, including the use of off-shift and over-time labor, if necessary.

(2) All possible steps were taken to minimize the impact of the excessive 

emissions on ambient air quality which may include but not be limited to 

curtailment of operation and/or shutdown of the facility.

(3) Malfunctions have not exceeded five percent (5%), as a guideline, of the 

normal operational time of the facility.

(4) The malfunction is not due to the negligence of the operator.

326 Ind. Admin. Code 1-6-4(a) (emphasis added), available at

http://yosemite.epa.gov/r5/r5ard.nsf/977585e33633852b862575750057311a/beee251aa8d85adc8

625756e007ae14f!OpenDocument. 

The Indiana SIP contains several other pollutant and source category specific SSM provisions. 

Id. 5-1-3 (alternative opacity limits during startup, shutdown, when removing ashes or blowing 

tubes); id. 10-3-1 (exempting specific boilers from compliance during SSM). Available at

http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By%20State%20Main%20View!OpenVi

ew&Start=1&Count=30&Expand=2#2. 
Sierra Club SSM Petition to EPA Page 37 of 80

Analysis

The Indiana SSM provision is inconsistent with the CAA and EPA policy because the provision 

states that excess emissions are not violations, contrary to the fundamental requirement that all 

excess emissions be considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1 & 

Attachment at 1-2. In any case, the regulation is ambiguous because it lacks any procedural 

specifications. Depending on to whom the demonstration is made, the regulation could be 

interpreted as either a qualified exemption or an affirmative defense. One interpretation of this 

section is that the source must make a showing to the State, which would then decide to consider 

the excess emissions not a violation.

Indiana’s SSM provision seems to confuse an enforcement discretion approach with the 

affirmative defense approach. See, e.g., Approval and Disapproval and Promulgation of 

Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8960 

n.3 (Feb. 22, 2006). The provision is framed in terms susceptible to interpretation as an 

affirmative defense, but uses the criteria similar to those that are supposed to guide a state’s 

enforcement discretion. Compare 326 Ind. Admin. Code 1-6-4(a) with 1982 Memorandum, 

Attachment at 2. Regardless of the original intent, the Indiana SSM provision is fatally 

ambiguous. It could be interpreted to preclude EPA and citizen enforcement and shield sources 

from injunctive relief.

Remedy

Indiana should remove 326 Ind. Admin. Code 1-6-4 from its SIP. Alternatively, if the provision 

is to be retained, it must be revised to clearly comply with the CAA and EPA guidance. The 

provision must stipulate that all excess emissions are violations and preserve the authority of 

EPA and citizens to enforce the SIP standards and limitations.

Iowa

SIP Provisions

Iowa provides an automatic exemption for excess emissions during startup, shutdown and 

cleaning:

Excess emission during a period of startup, shutdown, or cleaning of control 

equipment is not a violation of the emission standard if the startup, shutdown or 

cleaning is accomplished expeditiously and in a manner consistent with good 

practice for minimizing emissions.

Iowa Admin. Code r. 567-24.1(1) (emphasis added), available at

http://www.epa.gov/region07/air/rules/iowa/567-2401.pdf. For malfunctions the SIP provides an 

enforcement discretion approach:

An incident of excess emission (other than an incident during startup, shutdown 

or cleaning of control equipment) is a violation. If the owner or operator of a 

source maintains that the incident of excess emission was due to a malfunction, 
Sierra Club SSM Petition to EPA Page 38 of 80

the owner or operator must show that the conditions which caused the incident of 

excess emission were not preventable by reasonable maintenance and control 

measures. Determination of any subsequent enforcement action will be made 

following review of this report.

Id. r. 567-24.1(4).

Analysis

The automatic exemption of subsection (1) is inconsistent with the fundamental requirement that 

all excess emissions be considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1-

2 & Attachment at 1. Subsection (4) correctly considers all excess emissions violations, but 

empowers the state to make a “determination of any subsequent enforcement action.” Iowa 

Admin. Code r. 567-24.1(4) (emphasis added). One possible interpretation of this regulation is 

that the state can determine no enforcement is warranted at all, by anyone, which would preclude 

action by EPA and by citizens both for civil penalties and for injunctive relief. This 

interpretation is inconsistent with the Act and EPA policy. Memorandum at 3; Approval and 

Disapproval and Promulgation of Colorado Affirmative Defense Provisions for Startup and 

Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

Iowa should remove Iowa Admin. Code r. 567-24.1(1) from its SIP entirely. Alternatively, if the 

provision is to be retained, it must be revised to stipulate that all excess emissions are violations.

Iowa Admin. Code r. 567-24.1(4) should be revised to ensure that the state’s decision not to 

enforce has no effect on enforcement by EPA or by citizens.

Kansas

SIP Provisions

The Kansas SIP provides exemptions for excess emissions due to malfunction and necessary 

repairs, Kan. Admin. Regs. § 28-19-11(A), scheduled maintenance, id. § 28-19-11(B), and for

certain routine modes of operation, id. § 28-19-11(C), available at 

http://www.epa.gov/region07/air/rules/kansas/2819-011.pdf. The exemption for malfunctions 

and necessary repairs reads “[a]bnormal operating conditions resulting from malfunction 

breakdown, and or necessary repairs to control or processing equipment and appurtenances 

which cause emissions in excess of the limitations specified in the emission control regulations 

shall not be deemed violations provided that ...” certain criteria are met. Id. § 28-19-11(A)

(emphasis added). The exemption for scheduled maintenance provides:

Emissions in excess of the limitations specified in these emission control 

regulations resulting from scheduled maintenance of control equipment and 

appurtenances will be permitted only on the basis of prior approval by the 

department and upon demonstration that such maintenance cannot be 

accomplished by maximum reasonable effort, including off-shift labor where 

required, during periods of shutdown of any related equipment.
Sierra Club SSM Petition to EPA Page 39 of 80

Id. § 28-19-11(B) (emphasis added). The third exemption in section 28-19-11 reads “[e]xcessive 

contaminant emission from fuel burning equipment used for indirect heating purposes resulting 

from fuel or load changes, start up, soot blowing, cleaning of fires, and rapping of precipitators 

will not be deemed violations ... .” Id. § 28-19-11(C) (emphasis added).

Analysis

Each of these provisions in the Kansas SIP is inconsistent with the CAA and EPA policy. The 

provisions state that excess emissions are not violations (or are permitted), contrary to the 

fundamental requirement that all excess emissions be considered violations. 1982 Memorandum 

at 1; 1999 Memorandum at 1-2 & Attachment at 1. These provisions appear to preclude 

enforcement of the limitations by EPA and citizens. 1999 Memorandum at 3; Approval and 

Disapproval and Promulgation of Colorado Affirmative Defense Provisions for Startup and 

Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

Kansas should remove Kan. Admin. Regs. § 28-19-11 from the SIP in its entirety. Alternatively, 

if the provision is to be retained, it must be revised to clearly comply with the CAA and EPA 

guidance. The provision must stipulate that all excess emissions are violations and preserve the 

authority of EPA and citizens to enforce the SIP standards and limitations.

Kentucky

SIP Provisions

The Kentucky SIP provides an exemption for excess emissions due to malfunction and shutdown 

in the discretion of the director:

Emissions which, due to shutdown or malfunctions, temporarily exceed the 

standard set forth by the cabinet shall be deemed in violation of such standards 

unless the requirements of this section are satisfied and the determinations 

specified in subsection (4) of this section are made.

401 Ky. Admin. Regs. 50:055 § 1(1) (emphasis added), available at

http://www.epa.gov/region4/air/sips/ky/KY-Ch-50.pdf. The factors that guide the director’s 

determination resemble the criteria that are supposed to guide a state’s enforcement discretion 

for malfunctions:

A source shall be relieved from compliance with the standards set forth by the 

cabinet if the director determines, upon a showing by the owner or operator of the 

source, that:

(a) The malfunction or shutdown and ensuing startup did not result from the 

failure by the owner or operator of the source to operate and maintain 

properly the equipment;
Sierra Club SSM Petition to EPA Page 40 of 80

(b) All reasonable steps were taken to correct, as expeditiously as practicable, 

the conditions causing the emissions to exceed the standards, including the 

use of off shift labor and overtime if necessary;

(c) All reasonable steps were taken to minimize the emissions and their effect 

on air quality resulting from the occurrence.

(d) The excess emissions are not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and

(e) The malfunction or shutdown and ensuing startup was not caused entirely 

or in part by poor maintenance, careless operation or any other preventable 

upset conditions or equipment breakdown.

401 Ky. Admin. Regs. 50:055 § 1(4); c.f. 1982 Memorandum, Attachment at 2.

The Kentucky SIP contains several other pollutant and source category specific SSM provisions. 

Id. 50:055, § 2(4) (automatic exemption for opacity during SSM); id. 51:170 s 2 (exemption for 

NOX from cement kilns during SSM); id. 59:105 §1 (exemption for any gas generated during 

SSM); id. 61:005 § 3(4) (monitoring exception for malfunction); id. 61:010 § 3(2)(a) 

(exemptions for particulate matter from existing incinerators during startup and shutdown); id.

61:035 § 1 (exemption for any gas generated during SSM); id. 61:145 § 3(1) (exemption for

sulfur dioxide emissions from existing petroleum refineries during SSM).

Analysis

The Kentucky SIP authorizes the director to decide whether excess emissions are violations and 

thereby preclude enforcement by EPA and citizens. This regulatory structure is inconsistent with 

the fundamental requirement that all excess emissions be considered violations, 1982 

Memorandum at 1; 1999 Memorandum at 1-2 & Attachment at 1, and the enforcement structure 

of Title I of the Clean Air Act. See 1999 Memorandum at 3, Approval and Disapproval and 

Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. 

Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

Kentucky should remove 401 Ky. Admin. Regs. 50:055 § 1 from its SIP. Alternatively, if the 

provision is to be retained, it must be revised to clearly comply with the CAA and EPA 

guidance. The provision must stipulate that all excess emissions are violations and preserve the 

authority of EPA and citizens to enforce the SIP standards and limitations.

Jefferson County

SIP Provisions

Jefferson County Air Quality Regulations contain discretionary exemptions from compliance 

during startup and shutdown, and during malfunction, and an affirmative defense for 

emergencies, modeled on 40 C.F.R. § 70.6(g). Jefferson County Air Quality Regulations 1.07, 

approved by EPA at Approval and Promulgation of Air Quality Implementation Plans; 

Kentucky; Approval of Revisions to State Implementation Plan; Revised Format for Materials 
Sierra Club SSM Petition to EPA Page 41 of 80

Being Incorporated by Reference for Jefferson County, Kentucky, 66 Fed. Reg. 53,660 (Oct. 23, 

2001).

The general regulation provides that:

Emissions due to startup, shutdown, malfunction, or emergency, that temporarily 

exceed the standards set forth by the District, shall be deemed in violation of 

those standards unless, based upon a showing by the owner or operator of the 

source and an affirmative determination by the District, the applicable 

requirements of this regulation are satisfied.

Regulation 1.07 § 2.1 (emphasis added).

The requirements for relief under difference circumstances appear in sections 3 (startup and 

shutdown), 4 (malfunctions) and 5 (emergency). Section 5 of Regulation 1.07 calls the relief 

available for “emergency” an “affirmative defense.” Id. § 5.1. However, this “affirmative 

defense is included in the general regulation, which implies the defense is determined by the 

District. See id. § 2.1. Section 7 allows the Air Pollution Control Officer to “authorize 

continued operation” during malfunctions and emergencies despite unlawful emissions. Id. § 

7.1.

Analysis

Regulation 1.07 violates the fundamental requirement that all excess emissions be considered 

violations. 1999 Memorandum at 3; Approval and Disapproval and Promulgation of Colorado 

Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 

2006). Furthermore, a determination by the District to exempt sources from compliance would 

appear to preclude EPA or citizen enforcement, contrary to the enforcement structure of the 

CAA. 1999 Memorandum at 3; Approval and Disapproval and Promulgation of Colorado 

Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. at 8959-60.

There are two problems with the affirmative defense for emergency, modeled on 40 C.F.R. § 

70.6(g). First, the affirmative defense for emergency is part of the Title V regulations, which 

should not be incorporated into SIPs. Even if the emergency provision were to remain in the 

SIP, it must be revised so that it is a true affirmative defense. The Code of Federal Regulations 

defines affirmative defense as “in the context of an enforcement proceeding, a response or 

defense put forward by a defendant, regarding which the defendant has the burden of proof, and 

the merits of which are independently and objectively evaluated in a judicial or administrative 

proceeding.” 40 C.F.R. § 60.2265. The emergency provision in the Jefferson County Air 

Quality Regulations appears to allow the District to decide whether the defense applies.

Remedy

Kentucky and/or Jefferson County should remove the discretionary SSM exemptions that appear 

in Jefferson County Air Quality Regulation 1.07, §§ 2, 3, 4 and 7 from the SIP. The emergency 

provision of Jefferson County Air Quality Regulation 1.07, § 5 should also be removed. 
Sierra Club SSM Petition to EPA Page 42 of 80

Alternatively, if section 5 is to remain in the SIP it must be revised so that it is a true affirmative 

defense as EPA and the Code of Federal Regulations define that term.

Louisiana

SIP Provisions

The Louisiana SIP contains no general SSM regulation, but has many specific exemptions.

Table summarizing source and pollutant specific SSM provisions in the Louisiana SIP.

Chapter 11. Control of Emissions from Smoke

La. Admin. Code tit. 33, § III:1107 Discretionary Exemption: “Exemptions from the provisions of LAC 

33:III.1105 may be granted by the administrative authority during startup and 

shutdown periods if the flaring was not the result of failure to maintain or 

repair equipment.”

Chapter 15. Emission Standards for Sulfur Dioxide

La. Admin. Code tit. 33, § 

III:1507(A)(1)

Discretionary Exemption: “A four-hour (continuous) start-up exemption from 

the emission limitations of LAC 33:III.1503.A may be authorized by the 

administrative authority for plants not subject to LAC 33:III.3232 and 3233 

which have been shut down.”

La. Admin. Code tit. 33, § 

III:1507(B)(1)

Discretionary Exemption: “A four-hour (continuous) exemption from 

emission limitations of LAC 33:III.1503.A may be extended by the 

administrative authority to plants not subject to LAC 33:III.3232 and 3233 

where upsets have caused excessive emissions and on-line operating changes 

will eliminate a temporary condition.”

Chapter 21. Control of Emissions of Organic Compounds; Subchapter M—Limiting Volatile Organic Compound 

Emissions From Industrial Wastewater

La. Admin. Code tit. 33, § 

III:2153(B)(1)(i)

Automatic Exemption: “for wastewater tanks that would normally be required 

to have a control device or recovery device, these devices shall not be required 

to meet the 90 percent removal efficiency or 50 ppmv concentration during 

periods of malfunction or maintenance on the devices for periods not to 

exceed 336 hours per year.”

Chapter 22. Control of Emissions of Nitrogen Oxides (NOx)

La. Admin. Code tit. 33, § 

III:2201(C)(8)

Automatic Exemption: “The following categories of equipment or processes 

located at an affected facility within the Baton Rouge Nonattainment Area or 

the Region of Influence are exempted from the provisions of this Chapter: ...

8. any point source during start-up and shutdown as defined in LAC 33:III.111 

or during a malfunction as defined in 40 CFR section 60.2.”

Chapter 23. Control of Emissions for Specific Industries; Subchapter D—Emission Standards for the Nitric Acid 

Industry

La. Admin. Code tit. 33, § 

III:2307(C)(1)(a)

Discretionary Exemption: “A four hour start up exemption from emission 

regulations may be authorized by the administrative authority for plants not 

subject to LAC 33:III.3191 to 3199 which have been shut down.”

La. Admin. Code tit. 33, § 

III:2307(C)(2)(a)

Discretionary Exemption: “A four hour exemption from emission regulations 

may be extended by the administrative authority to plants not subject to LAC 

33:III.3191 to 3199 where upsets have caused excessive emissions and on-line 

operating changes will eliminate a temporary condition.”

Above regulations available at

http://yosemite.epa.gov/r6/Sip0304.nsf/home?Openview&Start=1&Count=30&Expand=3.
Sierra Club SSM Petition to EPA Page 43 of 80

Analysis

The automatic exemptions of La. Admin. Code tit. 33, §§ III:2153(B)(1)(i) and III:2201(C)(8) 

contravene the fundamental requirement that all excess emissions be considered violations. 1982 

Memorandum at 1; 1999 Memorandum at 1-2 & Attachment at 1. The discretionary exemption 

provisions of La. Admin. Code tit. 33, §§ III:1107, III:1507(A) & (B) and III:2307(C)(1) & (2) 

allow a decision by the state to preclude enforcement by EPA and citizens, contrary to the 

enforcement provisions of the CAA. 1999 Memorandum at 3; Approval and Disapproval and 

Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. 

Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

Louisiana should remove the following regulations from its SIP: La. Admin. Code tit. 33, §§ 

III:1107, III:1507(A) & (B), III:2153(B)(1)(i), III:2201(C)(8) and III:2307(C)(1) & (2).

Maine

SIP Provisions

The Maine SIP has no generally applicable SSM regulations. However, the SIP exempts certain 

boilers from the visible emission limits of 06-096-101 Me. Code R. § 2 during startup and 

shutdown:

This section does not apply to: ... E. For boilers whose rated input capacity is 

greater than 200,000,000 B.T.U. per hour, violations of the applicable provision 

of subsection 2 during the first 4 hours following the initiation of cold startup or 

planned shutdown, provided that operating records are available to demonstrate 

that the facility was being operated to minimize emissions. Any person claiming 

an exemption under this paragraph shall have the burden of proving that any 

excess emissions were not caused entirely, or in part, by poor maintenance, 

careless operation, poor design or any other reasonably preventable condition.

06-096-101 Me. Code R. § 3. The SIP also contains a discretionary exemption for visible 

emissions during malfunctions:

The department is authorized to exempt emissions occurring during periods of 

unavoidable malfunction or unplanned shutdown from civil penalty under section 

349, subsection 2, if the malfunction was not caused, entirely or in part, by poor 

maintenance, careless operation, poor design or any other reasonably preventable 

condition. In such a case, the burden of proof shall be on the person seeking the 

exemption.

Id. § 4.

Above provisions available at

http://www.epa.gov/region1/topics/air/sips/me/2003_ME_ch101.pdf. 
Sierra Club SSM Petition to EPA Page 44 of 80

Analysis

Neither of these provisions complies with the Clean Air Act because both fail to consider all 

excess emissions violations of the applicable limitations or standards. 1982 Memorandum at 1; 

1999 Memorandum at 1-2. The Maine provisions may also be interpreted to interfere with EPA 

and citizen enforcement.

Section 3 seems to operate like a defense in that the exemption is only available after a case by 

case demonstration. But the section does not specify which decision-maker is authorized to 

determine whether the visible emission limits apply. One plausible interpretation of this 

regulation is that the department is authorized to decide that the exemption applies and therefore 

preclude enforcement by EPA and by citizens. Provisions that may be so interpreted should be 

eliminated from the SIP. 1999 Memorandum at 3; Approval and Disapproval and Promulgation 

of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 

8959-60 (Feb. 22, 2006).

Section 4 is less ambiguous in its operation—it clearly provides an exemption at the discretion of 

the department. Such a provision is contrary to the basic requirement of EPA policy that all 

excess emissions be considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1-2. 

This discretionary exemption seems clearly intended to preclude enforcement by any authority, 

not just enforcement by the State and is therefore inconsistent with the enforcement structure of 

the Clean Air Act and EPA policy. 1999 Memorandum at 3.

Remedy

Maine should remove both exemptions to the visible emission limits, 06-096-101 Me. Code R. 

§§ 3(E), (4), from its SIP.

Michigan

SIP Provisions

The Michigan SIP contains both an enforcement discretion approach to “excess emissions 

resulting from malfunction, start-up, or shutdown,” Mich. Admin. Code r. 336.1915, and an 

affirmative defense for “excess emissions during start-up or shutdown,” id. r. 336.1916; 

available at

http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By%20State%20Main%20View!OpenVi

ew&Start=1&Count=30&Expand=3.12#3.12. See Approval and Promulgation Michigan 

Provisions for Excess Emissions During Startup, Shutdown or Malfunction, 68 Fed. Reg. 8550 

(Feb. 24, 2003). 

The elements of the affirmative defense are almost identical to the elements of the 1999 

Memorandum, as shown in the table below. The affirmative defense is not available in “a 

judicial action seeking injunctive relief,” Mich. Admin. Code r. 336.1916(1), and “does not 

apply when a single emission unit, or multiple emission units at a stationary source, causes an 

exceedance of the national ambient air quality standards or any applicable prevention of 

significant deterioration increment,” id. r. 336.1916(2) (emphasis added).
Sierra Club SSM Petition to EPA Page 45 of 80

In addition to the elements of the defense duplicated from the 1999 Memorandum, Michigan has 

added another element:

Excess emissions presenting an imminent threat to human health, safety, or the 

environment were reported to the department as soon as possible. Unless 

otherwise specified in the facility's permit, other excess emissions were reported 

as provided in R 336.1912. If requested by the department, a person shall submit a 

full written report that includes the known causes, the corrective actions taken, 

and the preventive measures to be taken to minimize or eliminate the chance of 

recurrence.

Id. r. 336.1916(1)(i).

Analysis

Affirmative defenses for excess emissions are inconsistent with the Clean Air Act, as explained 

above in section I of the Argument, and should be removed from the Michigan SIP. Even if the 

affirmative defense is to remain in the SIP, it suffers from two problems. First, the Michigan 

defense is available in situations where a single source or a small group of sources has the 

potential to cause an exceedance of the NAAQS or PSD increments, contrary to EPA policy. 

1999 Memorandum at 2-3 & Attachment at 1-2, 3. The Michigan defense is not available when 

sources actually case an exceedance. Mich. Admin. Code r. 336-1916(2). Sources with the 

potential to cause an exceedance should be more strictly controlled at all times and should not be 

able to mire enforcement proceedings in the difficult empirical questions of whether or not the 

NAAQS or PSD increments were exceeded as a matter of fact.

According to EPA policy affirmative defenses should not be available for limits derived from 

federally promulgated technology based standards, such as NSPSs and NESHAPs. 1999 

Memorandum, Attachment at 3. Michigan’s defense applies to any “applicable limitation,” 

which appears to include such standards and is therefore contrary to EPA policy. See Proposed 

Utah SIP Call, 75 Fed. Reg. 70,888, 70,892 (Nov. 19, 2010).

Table comparing elements of the EPA policy on affirmative defenses for startup and 

shutdown to the Michigan defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Startup or Shutdown as 

Discussed in 1999 Memorandum

Elements of Michigan Affirmative Defense for 

Startup and Shutdown

1. The periods of excess emissions that occurred during 

startup and shutdown were short and infrequent and 

could not have been prevented through careful planning 

and design;

“The periods of excess emissions that occurred during 

start-up or shutdown were short and infrequent and 

could not have been prevented through careful planning 

and design.” Mich. Admin. Code r. 336.1916(1)(a).

2. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance;

“The excess emissions that occurred during start-up or 

shutdown were not part of a recurring pattern indicative 

of inadequate design, operation, or maintenance.” Id. r. 

336.1916(1)(b).
Sierra Club SSM Petition to EPA Page 46 of 80

Elements of Affirmative Defense for Excess 

Emissions caused by Startup or Shutdown as 

Discussed in 1999 Memorandum

Elements of Michigan Affirmative Defense for 

Startup and Shutdown

3. If the excess emissions were caused by a bypass (an 

intentional diversion of control equipment), then the 

bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage;

“The excess emissions caused by a bypass (an 

intentional diversion of control equipment) were 

unavoidable to prevent loss of life, personal injury, or 

severe property damage.” Id. r. 336.1916(1)(c).

4. At all times, the facility was operated in a manner 

consistent with good practice for minimizing emissions;

“The facility was operated at all times in a manner 

consistent with good practice for minimizing emissions.” 

Id. r. 336.1916(1)(d).

5. The frequency and duration of operation in startup or 

shutdown mode was minimized to the maximum extent 

practicable;

“The frequency and duration of operating in start-up or 

shutdown mode were minimized to the maximum extent 

practicable.” Id. r. 336.1916(1)(e).

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

“All reasonably possible steps were taken to minimize 

the impact of the excess emissions on ambient air 

quality.” Id. r. 336.1916(1)(f).

7. All emission monitoring systems were kept in 

operation if at all possible;

“All emission monitoring systems were kept in operation 

if at all possible.” Id. r. 336.1916(1)(g).

8. The owner or operator’s actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence; and

“The actions during the period of excess emissions were 

documented by contemporaneous operating logs or other 

relevant evidence as provided by R 336.1912.” Id. r. 

336.1916(1)(h).

“Any information submitted to the department under this 

subrule shall be properly certified in accordance with the 

provisions of R 336.1912.” Id. r. 336.1916(1)(j).

9. The owner or operator properly and promptly notified 

the appropriate regulatory authority.

“[T]he person has complied with the reporting 

requirements of R 336.1912 ...” Id. r. 336.1916(1).

Remedy

The affirmative defense provision of Mich. Admin. Code r. 336.1916 should be removed as 

inconsistent with the Clean Air Act. Alternatively, the affirmative defense should not be 

available where a single source or a small group of sources has the potential to cause an 

exceedance of the NAAQS or PSD increments. The affirmative defense also should not apply to 

federally-promulgated technology-based standards.

Minnesota

SIP Provisions

The Minnesota SIP has no generally applicable SSM provision. However, the SIP contains an 

exemption for flared gas at petroleum refineries when those flares are caused by startup, 

shutdown or malfunction: “The combustion of process upset gas in a flare, or the combustion in 

a flare of process gas or fuel gas which is released to the flare as a result of relief valve leakage, 

is exempt from the standards of performance set forth in this regulation.” Minn. R. 7011.1415, 

available at

http://yosemite.epa.gov/r5/r5ard.nsf/977585e33633852b862575750057311a/e4b5e9ee1a7bedba8

625756f004c4269!OpenDocument. Process upset gas is defined as “any gas generated by a 

petroleum refinery process unit as a result of start-up, shutdown, upset, or malfunction.” Id.

7011.1400(12). 
Sierra Club SSM Petition to EPA Page 47 of 80

Analysis

The unconditional source category specific exemption in rule 7011.1415 violates the 

fundamental requirement that all excess emissions be considered violations and interfere with 

EPA and citizen enforcement. 1982 Memorandum at 1; 1999 Memorandum at 1-2, 3.

Remedy

Minnesota should remove from its SIP the unconditional SSM exemption for flares at petroleum 

refineries in Minn. R. 7011.1415.

Mississippi

SIP Provisions

The Mississippi SIP provides affirmative defenses for violations during upsets, 11-1-2 Miss. 

Code R. § 10.1, and for violations during unavoidable maintenance, id. § 10.3, as well as an 

exemption for violations during startup and shutdown, id. § 10.2. Available at

http://www.epa.gov/region4/air/sips/ms/APC-S-1.pdf. The affirmative defenses are not limited 

to civil penalties, but appear to extend to actions seeking any type of relief. See id. §§ 10.1, 10.3. 

As shown in the table below, the elements of the affirmative defense for malfunctions fall far

short of the EPA policy below.

The exemption for startup and shutdown provides, in pertinent part:

Startups and shutdowns are part of normal source operation. Emissions limitations 

applicable to normal operation apply during startups and shutdowns except as 

follows: ... (2) when a startup or shutdown is infrequent, the duration of excess 

emissions is brief in each event, and the design of the source is such that the 

period of excess emissions cannot be avoided without causing damage to 

equipment or persons ... .

Id. § 10.2.

The affirmative defense for maintenance in section 10.3 states as follows:

Unavoidable maintenance that results in brief periods of excess emissions and that 

is necessary to prevent or minimize emergency conditions or equipment 

malfunctions constitutes an affirmative defense to an enforecement [sic] action 

brought for noncompliance with emission standards, or other regulatory 

requirements if the source can demonstrate [certain criteria].

Id. § 10.3.

Analysis

Affirmative defenses for excess emissions are inconsistent with the Clean Air Act, as explained 

above in section I of the Argument, and should be removed from the Mississippi SIP. 
Sierra Club SSM Petition to EPA Page 48 of 80

Alternatively, if the affirmative defense for upsets is to remain in the SIP, it should be revised to 

comply with EPA policy. According to EPA policy, affirmative defenses are not appropriate 

where a single source or a small group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments. 1999 Memorandum at 2-3 & Attachment at 1-2, 3. The 

Mississippi provision has no corresponding limitation. Affirmative defenses should only be 

available in actions seeking civil penalties, and not for actions seeking injunctive relief. Id. at 2. 

Section 10.1 makes no distinction about the relief against which the defense may be asserted. In 

addition, the elements of the defense omit many of the elements that EPA requires for acceptable 

defense provisions, as shown in the table below.

Table comparing elements of the EPA policy on affirmative defenses for malfunctions to 

the Mississippi defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Malfunction as Discussed in 

1999 Memorandum

Elements of Mississippi Affirmative Defense for 

Upsets

1. The excess emissions were caused by a sudden,

unavoidable breakdown of technology, beyond the 

control of the owner or operator;

“[A]n upset occurred and that the source can identify 

the cause(s) of the upset.” 11-1-2 Miss. Code R. § 

10.1(a)(1).

2. The excess emissions (a) did not stem from any 

activity or event that could have been foreseen and 

avoided, or planned for, and (b) could not have been 

avoided by better operation and maintenance practices;

Upset is defined as “[a]n unexpected and unplanned 

condition of operation of the facility in which 

equipment operates outside of the normal and planned 

parameters. An upset shall not include a condition of 

operation caused by improperly designed equipment, 

lack of preventive maintenance, careless or improper 

operation, operator error, or an intentional startup or 

shutdown of equipment.” Id. § 2(34).

3. To the maximum extent practicable the air pollution 

control equipment or processes were maintained and 

operated in a manner consistent with good practice for 

minimizing emissions;

“[T]he source was at the time being properly 

operated.” Id. § 10.1(a)(2).

4. Repairs were made in an expeditious fashion when 

the operator knew or should have known that 

applicable emission limitations were being exceeded. 

Off-shift labor and overtime must have been utilized, 

to the extent practicable, to ensure that such repairs 

were made as expeditiously as practicable;

[no corresponding element]

5. The amount and duration of the excess emissions 

(including any bypass) were minimized to the 

maximum extent practicable during periods of such 

emissions;

“[D]uring the upset the source took all reasonable steps 

to minimize levels of emissions that exceed the 

emission standards, or other requirements of 

Applicable Rules and Regulations or any applicable 

permit.” Id. § 10.1(a)(3).

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

[no corresponding element]

7. All emission monitoring systems were kept in 

operation if at all possible;

[no corresponding element]

8. The owner or operator’s actions in response to the 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence;

[no corresponding element]
Sierra Club SSM Petition to EPA Page 49 of 80

Elements of Affirmative Defense for Excess 

Emissions caused by Malfunction as Discussed in 

1999 Memorandum

Elements of Mississippi Affirmative Defense for 

Upsets

9. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance; and

[no corresponding element]

10. The owner or operator properly and promptly 

notified the appropriate regulatory authority.

“[T]he source submitted notice of the upset to the DEQ 

within 5 working days of the time the upset began; and

the notice of the upset shall contain a description of the 

upset, any steps taken to mitigate emissions, and 

corrective actions taken.” Id. § 10.1(a)(4), (5).

The exception of section 10.2 violates the fundamental requirement that all excess emissions be 

considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1-2 & Attachment at 1. 

Although section 10.2 resembles an affirmative defense, it operates to nullify the violation. If 

the exception applies, injunctive relief will be unavailable.

The affirmative defense for unavoidable maintenance has no basis in the CAA or in EPA policy. 

If maintenance is due to unavoidable malfunction, then any excess emissions should be 

considered under the malfunction provision. Otherwise, maintenance should be scheduled to 

coincide with shutdown of the source. 1983 Memorandum, Attachment at 3.

Remedy

The affirmative defense provisions of 11-1-2 Miss. Code R. §§ 10.1 and 10.3 should be removed 

as inconsistent with the Clean Air Act. Even if affirmative defenses are to remain in the SIP, 

there is no basis for an affirmative defense for maintenance—Mississippi should remove 11-1-2 

Miss. Code R. § 10.3 in any event. If section 10.1 is to remain in the SIP, it should be revised to 

adhere to EPA’s policy on affirmative defenses, by limiting it to actions for civil penalties, 

making it unavailable where a single source or a small group of sources has the potential to cause 

an exceedance of the NAAQS or PSD increments, and adding the fourth, sixth, seventh, eighth 

and ninth elements from the 1999 Memorandum. The exemption of 11-1-2 Miss. Code R. § 10.2 

should be removed from the SIP.

Missouri

SIP Provisions

Missouri’s SIP contains what appears intended to be an enforcement discretion approach to 

excess emissions during SSM. Under section 10-6.050, “... the director or the commission shall 

make a determination whether the excess emissions constitute a malfunction, start-up or 

shutdown and whether the nature, extent and duration of the excess emissions warrant 

enforcement action ... .” Mo. Code Regs. Ann. tit 10, § 10-6.050(C), available at

http://www.epa.gov/region07/air/rules/missouri/10-6050.pdf.

The SIP also contains an exemption for visible emissions, id. § 10-6.220(3)(c), and an exemption 

for Hospital/Medical/Infectious Waste Incinerators (“HMIWI”) during startup, shutdown and 
Sierra Club SSM Petition to EPA Page 50 of 80

malfunction, id. § 10-6.200(3)(E)(1), (3)(E)(3)(C)(I), (3)(E)(4)(B), (3)(E)(5)(E), (3)(E)(6)(F), 

(3)(E)(7)(E), (3)(E)(11)(C).

The exemption for visible emissions could be construed to be at the director’s discretion:

Visible emissions over the limitations shown in subsection (3)(B) of this rule are 

in violation of this rule unless the director determines that the excess emissions do 

not warrant enforcement action based on data submitted under 10 CSR 10-6.050 

Start-Up, Shutdown and Malfunction Conditions.

Id. § 10-6.220(3)(c).

Analysis

Missouri’s general SSM approach is ambiguous and could possibly be interpreted contrary to the 

Act and to EPA policy. The regulation clearly gives the director the authority to decide whether 

excess emissions occurred during a malfunction, start-up or shutdown, and whether they 

“warrant enforcement action.” Id. § 10-6.050(C). This could simply mean that the director 

decides that the State will not proceed to enforce in these cases. But it could also be interpreted 

to give the director authority to decide that enforcement is not warranted at all, by anyone, which 

would preclude action by EPA and by citizens both for civil penalties and for injunctive relief. 

This interpretation is inconsistent with the Act and EPA policy. 1999 Memorandum at 3.

The visible emission exemption is contrary to the enforcement provisions of the Act because it 

could be construed to empower the director to preclude enforcement by EPA and citizens. 1999 

Memorandum at 3.

Remedy

Missouri should clarify the approach of Mo. Code Regs. Ann. tit 10 § 10-6.050 so that it is 

unambiguously connected to the State’s enforcement discretion. Mo. Code Regs. Ann. tit 10, § 

10-6.220(3)(c) should be removed from the SIP completely.

Montana

SIP Provisions

Montana takes an enforcement discretion approach to excess emissions during malfunctions. 

Mont. Admin. R. 17.8.110(4). The SIP also contains an exception to limits for aluminum plants 

during startup and shutdown. Id. 17.8.334 (“nor shall emissions in excess of the levels required 

in ARM 17.8.331 and 17.8.332 during periods of startup and shutdown be considered a violation 

of the limits in ARM 17.8.331 and 17.8.332.”), available at

https://yosemite.epa.gov/R8/R8Sips.nsf?OpenDatabase&Start=1&Count=30&Expand=1.

Analysis

The exemption for aluminum plants during startup and shutdown is contrary to EPA policy for 

source category specific rules for startup and shutdown. 1999 Memorandum, Attachment at 4-5. 
Sierra Club SSM Petition to EPA Page 51 of 80

First, source-specific must be limited to cases where no single source or small group of sources 

has the potential to cause an exceedance of the NAAQS or PSD increments. Id., Attachment at 

5. In addition, there is nothing to indicate that the State addressed the feasibility of control 

strategies, minimization of the frequency and duration of startup and shutdown modes, worstcase emissions, and impacts on ambient air quality. Id.

Remedy

Montana should remove Mont. Admin. R. 17.8.334 from its SIP or revise it in accordance with 

EPA’s policy on source category specific rules for startup

Nebraska

SIP Provisions

Nebraska’s SIP contains what appears intended to be an enforcement discretion approach to 

excess emissions during SSM. The SIP states that “... the Director shall make a determination 

whether the excess emissions constitute a malfunction, start-up, or shutdown, and whether the 

nature, extent and duration of the excess emissions warrant enforcement action ... .” 129 Neb. 

Admin. Code § 11-35(001), available at

http://www.epa.gov/region07/air/rules/nebraska/t129ch35.pdf. The SIP also contains 

exemptions for HMIWI during startup, shutdown and malfunction. Id. § 18-004.2.

Analysis

Nebraska’s general SSM approach is ambiguous and could possibly be interpreted contrary to 

the Act and to EPA policy. The regulation clearly gives the Director the authority to decide 

whether excess emissions “warrant enforcement action.” Id. § 11-35(001). This phrase could 

simply mean that the Director decides that the State will not proceed to enforce. But it could 

also be interpreted to give the Director authority to decide that enforcement is not warranted at 

all, by anyone, which would preclude action by EPA and by citizens both for civil penalties and 

for injunctive relief. This interpretation is inconsistent with the Act and EPA policy. 1999 

Memorandum at 3.

Remedy

Nebraska should clarify the approach of 129 Neb. Admin. Code § 11-35(001) so that it is 

unambiguously connected to the State’s enforcement discretion. The SSM exemptions for 

HMIWI of 129 Neb. Admin. Code § 18-004.2 should be removed entirely.

Lincoln/Lancaster County

SIP Provisions

The Lincoln-Lancaster County Health Department (“LLCHD”) has adopted an SSM regulation 

that parallels the Nebraska Administrative Code. Lincoln-Lancaster County Air Pollution 

Control Program, art. 2, § 35, approved by EPA at Approval and Promulgation of 

Implementation Plans and Approval of 112(l) Authority; Lincoln-Lancaster County Health 
Sierra Club SSM Petition to EPA Page 52 of 80

Department (LLCHD) and City of Omaha (Nebraska), 61 Fed. Reg. 5699 (Feb. 14, 1996). 

Section 35 is identical to 129 Neb. Admin. Code § 11-35 in all aspects pertinent to this analysis.

Analysis

LLCHD’s general SSM approach is ambiguous and could possibly be interpreted contrary to the 

Act and to EPA policy. The regulation clearly gives the Director the authority to decide whether 

excess emissions “warrant enforcement action.” Id. § 35(A). This phrase could be interpreted to 

give the Director authority to decide that enforcement is not warranted at all, by anyone, which 

would preclude action by EPA and by citizens both for civil penalties and for injunctive relief. 

This interpretation is inconsistent with the Act and EPA policy. 1999 Memorandum at 3.

Remedy

Nebraska and/or LLCHD should clarify the approach of Lincoln-Lancaster County Air Pollution 

Control Program, art. 2, § 35 so that it unambiguously implements enforcement discretion.

New Hampshire

SIP Provisions

The New Hampshire SIP requires the division to allow excess emissions when air pollution 

control equipment breaks:

In the event of a malfunction or breakdown of any component part of the air 

pollution control equipment, increased emissions shall be allowed by the division 

for a period not to exceed 48 hours provided that there is no immediate danger to 

public health.

N.H. Code R. Env-A 902.03 (emphasis added), available at

http://www.epa.gov/region1/topics/air/sips/nh/2003_Env_A_900_NH.pdf. This mandatory 

exemption may be extended:

The director may, upon request of an owner or operator of a stationary source or 

device, grant an extension of time or a temporary variance for a period longer 

than 48 hours.

Id. 902.04.

In addition to these generally applicable provisions, the New Hampshire SIP contains an 

exemption for visible emissions during startup for service industries, id. 1203.05, and an 

exemption for visible emissions during startup at asphalt plants, id. 1207.02.

Analysis

Because section 902.03 is a generally applicable regulation that provides that if certain 

conditions existed during a period of excess emissions, then those exceedances would not be 

considered violations, it is an automatic exemption. 1999 Memorandum, Attachment at 1 n.2. 
Sierra Club SSM Petition to EPA Page 53 of 80

Automatic exemptions are not allowed. Both N.H. Code R. Env-A 902.03 and 902.04 should be 

removed from the SIP. The regulation also appears to authorize the division to allow emissions, 

which could be interpreted to preclude enforcement by EPA and citizens, contrary to the 

enforcement structure of Title I of the CAA. 1999 Memorandum at 3; Approval and Disapproval 

and Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 

Fed. Reg. 8958, 8959-60 (Feb. 22, 2006) (disapproving section II.J.5).

The source specific exemptions of N.H. Code R. Env-A 1203.05 and 1207.02 also fail to comply 

with EPA policy. EPA allows source category specific rules for startup and shutdown, but only 

under certain conditions, none of which are met in this case. 1999 Memorandum, Attachment at 

4-5. First, source-specific must be limited to cases where no single source or small group of 

sources has the potential to cause an exceedance of the NAAQS or PSD increments. Id., 

Attachment at 5. New Hampshire’s exemptions are not limited in this way. Of the seven criteria 

EPA considers adequate to justify a source specific emission limit during startup and shutdown, 

section 1207.02 arguably meets only one of them and section 1203.05 meets none at all. 

Compare 1999 Memorandum, Attachment at 5 with N.H. Code R. Env-A 1203.05 and 1207.02. 

The source category of section 1207.05 is somewhat narrowly defined (asphalt plants existing 

prior to 1974) but there is nothing to indicate that the State addressed the feasibility of control 

strategies, minimization of the frequency and duration of startup and shutdown modes, worstcase emissions, impacts on ambient air quality, planning, design and operating processes, and 

documentation at the source.

Remedy

New Hampshire should remove N.H. Code R. Env-A 902.03 and 902.04 from its SIP. 

Alternatively, if the provisions are to be retained, they must be revised to clearly comply with the 

CAA and EPA guidance. The provisions must stipulate that all excess emissions are violations 

and preserve the authority of EPA and citizens to enforce the SIP standards and limitations. The 

state should remove the source specific exemptions for startup and shutdown in N.H. Code R. 

Env-A 1203.05 and 1207.02.

New Jersey

SIP Provisions

New Jersey does not have a general approach to SSM in its SIP. However there are several 

pollutant specific exemptions that are inconsistent with the Act and EPA policy. The New Jersey 

SIP exempts “[t]he discharge from any stack or chimney having the sole function of relieving 

pressure of gas, vapor, or liquid under abnormal emergency conditions” from compliance with 

any sulfur limitation. N.J. Admin. Code § 7:27-7.2(k)(2), available at

http://www.epa.gov/region02/air/sip/7_27-Sub7.pdf. This exemption applies to sulfur emissions 

from industrial sources. Id. Emergency conditions are not defined in that subchapter or in the 

general definitions of subchapter 1. The SIP also exempts electric generating units from 

compliance with NOX emissions limits when it is operating at “emergency capacity,” at the 

direction of a load dispatcher during a MEG alert. Id. § 7:27-19.24, available at

http://www.epa.gov/region02/air/sip/pdf/7_27-sub19_09.pdf.
Sierra Club SSM Petition to EPA Page 54 of 80

“MEG alert” means a period in which one or more electric generating units are 

operated at emergency capacity at the direction of the load dispatcher, in order to 

prevent or mitigate voltage reductions or interruptions in electric service, or both. 

A MEG alert begins and ends as follows: 1. An alert begins when one or more 

electric generating units are operated at emergency capacity after receiving notice 

from the load dispatcher, directing the electric generating unit to do so; and 2. An 

alert ends when the electric generating unit ceases operating its electric generating 

units at emergency capacity.

Id. § 7:27-19.1.

Analysis

The exemption for discharges during abnormal emergency conditions is inconsistent with EPA 

policy. The fact that these discharges occur through stacks or chimneys that are used only in 

emergency conditions does not change the nature of the emissions themselves. Under EPA 

policy, section 7:27-7.2(k)(2) is either an automatic exemption, see 1999 Memorandum, 

Attachment 1 n.2, or a source specific exemption, see id., Attachment at 4-5. In either case, it 

should be removed.

The MEG alert exemption for electric generating units cannot ensure compliance with the 

NAAQS and PSD increments for NOX because ambient air quality is nowhere mentioned as a 

relevant consideration.

Remedy

New Jersey should remove the two source-specific exemptions in N.J. Admin. Code §§ 7:27-

7.2(k)(2) and 7:27-19.24 from its SIP.

New Mexico

SIP Provisions

The New Mexico SIP contains affirmative defenses for excess emissions due to malfunction, 

N.M. Code R. § 20.2.7.111, due to startup and shutdown, id. § 20.2.7.112, and due to 

emergencies, id. § 20.2.7.113, that EPA approved in 2009. Approval and Promulgation of

Revision to New Mexico Implementation Plan for Excess Emissions, 74 Fed. Reg. 46,910 (Sep. 

14, 2009). The regulations state that the department’s determination with respect to any of the 

defenses “shall not preclude an enforcement action by the federal government or a citizen 

pursuant to the federal Clean Air Act.” Id. § 20.2.7.115. As shown in the tables below, the 

elements of the affirmative defenses for excess emissions during malfunction and startup and 

shutdown have criteria that closely mirror EPA’s policy. The emergency defense reflects the 

defense in the Title V regulations at 40 C.F.R. § 70.6(g). None of the defenses mention 

situations where a single source or a small group of sources has the potential to cause an 

exceedance of the NAAQS. See N.M. Code R. §§ 20.2.7.111, 20.2.7.112, 20.2.7.113.
Sierra Club SSM Petition to EPA Page 55 of 80

Analysis

Affirmative defenses for excess emissions are inconsistent with the Clean Air Act, as explained 

above in section I of the Argument, and should be removed from the New Mexico SIP. 

Alternatively, the affirmative defense provisions should be revised to ensure that they are not 

available when a single source or small group of sources has the potential to cause exceedances 

of the NAAQS or PSD increments. 1999 Memorandum at 2-3, 4 & Attachment at 1.

The emergency defense of 40 C.F.R. § 70.6(g) is a Title V regulation and should not appear in 

the SIP. When EPA approved these provisions, it expressly delayed consideration of the Title V 

program. Approval and Promulgation of New Mexico Implementation Plan, Excess Emissions, 

74 Fed. Reg. at 46,911. At that time, EPA believed the approach of the emergency affirmative 

defense “is consistent with our guidance documents,” despite the fact that none of the cited 

guidance documents say anything about the Title V emergency defense. Id. at 46,911-12.

Table comparing elements of the EPA policy on affirmative defenses for malfunctions to 

the New Mexico defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Malfunctions as Discussed in 

1999 Memorandum

Elements of New Mexico’s Affirmative Defense for 

Malfunctions

1. The excess emissions were caused by a sudden, 

unavoidable breakdown of technology, beyond the 

control of the owner or operator;

“The excess emission was caused by a malfunction.” 

N.M. Code R. § 20.2.7.111(A)(1).

“ ‘Malfunction’ means any sudden and unavoidable 

failure of air pollution control equipment or process 

equipment beyond the control of the owner or operator, 

including malfunction during startup or shutdown. A 

failure that is caused entirely or in part by poor 

maintenance, careless operation, or any other 

preventable equipment breakdown shall not be 

considered a malfunction.” Id. § 20.2.7.7(E)

2. The excess emissions (a) did not stem from any 

activity or event that could have been foreseen and 

avoided, or planned for, and (b) could not have been 

avoided by better operation and maintenance practices;

“The excess emission: (a) did not stem from any activity 

or event that could have been foreseen and avoided, or 

planned for; and (b) could not have been avoided by 

better operation and maintenance practices.” Id. § 

20.2.7.111(A)(2).

3. To the maximum extent practicable the air pollution 

control equipment or processes were maintained and 

operated in a manner consistent with good practice for 

minimizing emissions;

“To the maximum extent practicable the air pollution 

control equipment or processes were maintained and 

operated in a manner consistent with good practice for 

minimizing emissions.” Id. § 20.2.7.111(A)(3).

4. Repairs were made in an expeditious fashion when the 

operator knew or should have known that applicable 

emission limitations were being exceeded. Off-shift 

labor and overtime must have been utilized, to the extent 

practicable, to ensure that such repairs were made as 

expeditiously as practicable;

“Repairs were made in an expeditious fashion when the 

operator knew or should have known that applicable 

emission limitations were being exceeded. Off-shift 

labor and overtime must have been utilized, to the extent 

practicable, to ensure that such repairs were made as 

expeditiously as practicable.” Id. § 20.2.7.111(A)(4).

5. The amount and duration of the excess emissions 

(including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions;

“The amount and duration of the excess emission 

(including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions.” Id.

§ 20.2.7.111(A)(5).
Sierra Club SSM Petition to EPA Page 56 of 80

Elements of Affirmative Defense for Excess 

Emissions caused by Malfunctions as Discussed in 

1999 Memorandum

Elements of New Mexico’s Affirmative Defense for 

Malfunctions

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

“All possible steps were taken to minimize the impact of 

the excess emission on ambient air quality.” Id. § 

20.2.7.111(A)(6).

7. All emission monitoring systems were kept in 

operation if at all possible;

“All emission monitoring systems were kept in operation 

if at all possible.” Id. § 20.2.7.111(A)(7).

8. The owner or operator’s actions in response to the 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence;

“The owner or operator's actions in response to the 

excess emission were documented by properly signed, 

contemporaneous operating logs, or other relevant 

evidence.” Id. § 20.2.7.111(a)(10).

9. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance; and

“The excess emission was not part of a recurring pattern 

indicative of inadequate design, operation, or 

maintenance.” Id. § 20.2.7.111(A)(8).

10. The owner or operator properly and promptly 

notified the appropriate regulatory authority.

“The owner or operator complied with the notification 

requirements in Section 110 of 20.2.7 NMAC.” Id. § 

20.2.7.111(a)(9).

Table comparing elements of the EPA policy on affirmative defenses for startup and 

shutdown to the New Mexico defense.

Elements of Affirmative Defense for Excess 

Emissions caused by Startup or Shutdown as 

Discussed in 1999 Memorandum

Elements of New Mexico Affirmative Defense for 

Startup and Shutdown

1. The periods of excess emissions that occurred during 

startup and shutdown were short and infrequent and 

could not have been prevented through careful planning 

and design;

“The excess emission occurred during a startup or 

shutdown.” N.M. Code R. § 20.2.7.112(A)(1).

“The duration of the excess emission that occurred 

during startup and shutdown was short and could not 

have been prevented through careful planning and 

design.” Id. § 20.2.7.112(A)(2).

2. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance;

“The excess emission was not part of a recurring pattern 

indicative of inadequate design, operation, or 

maintenance.” Id. § 20.2.7.112(A)(3).

3. If the excess emissions were caused by a bypass (an 

intentional diversion of control equipment), then the 

bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage;

“If the excess emission was caused by a bypass (an 

intentional diversion of control equipment), then the 

bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage.” Id. § 

20.2.7.112(A)(4).

4. At all times, the facility was operated in a manner 

consistent with good practice for minimizing emissions;

“At all times, the source was operated in a manner 

consistent with good practices for minimizing 

emissions.” Id. § 20.2.7.112(A)(5).

5. The frequency and duration of operation in startup or 

shutdown mode was minimized to the maximum extent 

practicable;

“The frequency and duration of operation in startup or 

shutdown mode was minimized to the maximum extent 

practicable.” Id. § 20.2.7.112(A)(6).

6. All possible steps were taken to minimize the impact 

of the excess emissions on ambient air quality;

“All possible steps were taken to minimize the impact of 

the excess emission on ambient air quality.” Id. § 

20.2.7.112(A)(7).

7. All emission monitoring systems were kept in 

operation if at all possible;

“All emissions monitoring systems were kept in 

operation if at all possible.” Id. § 20.2.7.112(A)(8).

8. The owner or operator’s actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant 

“The owner or operator's actions during the period of the 

excess emission were documented by properly signed, 

contemporaneous operating logs, or other relevant 
Sierra Club SSM Petition to EPA Page 57 of 80

evidence; and evidence.” Id. § 20.2.7.112(A)(10).

9. The owner or operator properly and promptly notified 

the appropriate regulatory authority.

“The owner or operator complied with the notification 

requirements in Section 110 of 20.2.7 NMAC.” Id. § 

20.2.7.112(A)(9).

Remedy

The affirmative defense provisions of N.M. Code R. §§ 20.2.7.111 and 20.2.7.112 should be 

removed as inconsistent with the Clean Air Act, as explained above in section I of the Argument. 

Alternatively, if the affirmative defenses in sections 20.2.7.111 and 20.2.7.112 are to remain in 

the SIP, they should not be available where a single source or a small group of sources has the 

potential to cause an exceedance of the NAAQS or PSD increments. The emergency affirmative 

defense of N.M. Code R. § 20.2.7.113 should be removed from the SIP.

North Carolina

SIP Provisions

The North Carolina SIP contains an exemption for excess emissions during malfunctions in the 

discretion of the director:

Any excess emissions that do not occur during start-up or shut down shall be 

considered a violation of the appropriate rule unless the owner or operator of the 

source of the excess emissions demonstrates to the director, that the excess 

emissions are the result of a malfunction. 

15A N.C. Admin. Code 2D.0535(c) (emphasis added), available at

http://www.epa.gov/region4/air/sips/nc/2D%20.0501-.0542%20updated%20101105.pdf. The

regulation does not allow excuses “for more than 15 percent of the operating time during each 

calendar year.” Id. 2D.0535(c)(7). Excess emissions during startup and shutdown are treated in 

a similar fashion:

Excess emissions during start-up and shut-down shall be considered a violation

of the appropriate rule if the owner or operator cannot demonstrate that the 

excess emissions are unavoidable when requested to do so by the Director.

Id. 2D.0535(g) (emphasis added). In addition, “[t]he Director may specify for a particular source 

the amount, time, and duration of emissions that are allowed during start-up or shutdown.” Id.

Analysis

The North Carolina SIP is inconsistent with the Act and EPA policy because a decision of the 

director can exempt sources from compliance. Both provisions allow the director to decide 

whether a violation has occurred, contrary to the fundamental requirement that all excess 

emissions be considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1 & 

Attachment at 1-2. This decision appears to preclude enforcement of the limitations by EPA and 

citizens. 1999 Memorandum at 3; Approval and Disapproval and Promulgation of Colorado 
Sierra Club SSM Petition to EPA Page 58 of 80

Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 

2006) (disapproving section II.J.5).

The limitation of excuses for malfunctions to 15 percent of the operating time during each 

calendar year does nothing to ensure that ambient air quality standards are met. The amount of 

excess emissions released during malfunctions may far exceed the allowable emissions at other 

times. Envtl. Integrity Project, Gaming the System 5-9 (2004), available at

http://www.environmentalintegrity.org/pdf/publications/EIP_upsets_report_appendixA.pdf.

Remedy

North Carolina should remove 15A N.C. Admin. Code 2D.0535(c) and (g) from its SIP. 

Alternatively, if the provisions are to be retained, they must be revised to clearly comply with the 

CAA and EPA guidance. The provisions must stipulate that all excess emissions are violations 

and preserve the authority of EPA and citizens to enforce the SIP standards and limitations.

Forsyth County

SIP Provisions

The Forsyth County Code has a SIP-approved SSM provision that is substantially similar to 

North Carolina’s state-wide provision. Forsyth County Code ch. 3, 3D.0535, approved by EPA 

at Approval and Promulgation of Air Quality Implementation Plans; North Carolina; 

Miscellaneous Revisions to the Forsyth County Local Implementation Plan, 65 Fed. Reg. 8081 

(Feb. 17, 2000). The code contains discretionary exemptions for excess emissions during SSM 

that are almost identical to the state provisions. Compare Forsyth County Code, ch. 3, 

3D.0535(c) with 15A N.C. Admin. Code 2D.0535(c) and Forsyth County Code, ch. 3, 

3D.0535(g) with 15A N.C. Admin. Code 2D.0535(g).

Analysis

The local regulations have the same problems as the state-wide regulations. The Director is 

empowered to excuse violations and preclude enforcement by EPA and citizens, contrary to the 

fundamental requirements and structure of the Act. 1982 Memorandum at 1; 1999 Memorandum 

at 1 & Attachment at 1-2; Approval and Disapproval and Promulgation of Colorado Affirmative 

Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

North Carolina and/or Forsyth County should remove Forsyth County Code ch. 3, 3D.0535 from 

the SIP. Alternatively, if the provision is to be retained, it must be revised to clearly comply 

with the CAA and EPA guidance. The provision must stipulate that all excess emissions are 

violations and preserve the authority of EPA and citizens to enforce the SIP standards and 

limitations.
Sierra Club SSM Petition to EPA Page 59 of 80

North Dakota

SIP Provisions

EPA recently proposed to approve North Dakota’s revised SSM provision, N.D. Admin. Code § 

33-15-01-13. Approval and Promulgation of Revisions to the North Dakota Air Pollution 

Control Rules, 76 Fed. Reg. 25,652 (proposed May 5, 2011). There are other rules, though, that 

create pollutant- and source category specific-exemptions. The SIP creates an exemption from 

the opacity limit when it is not technically feasible to meet it:

The provisions of sections 33-15-03-01, 33-15-03-02, 33-15-03-03, and 33-15-03-

03.1 shall not apply in the following circumstances: ... (4) Where the limits 

specified in this article cannot be met because of operations or processes such as, 

but not limited to, oil field service and drilling operations, but only so long as it is 

not technically feasible to meet said specifications.

N.D. Admin. Code § 33-15-03-04(4), available at

https://yosemite.epa.gov/R8/R8Sips.nsf/9880b8bc95f12ee787256b5f00549f2e/3a5b0936f386f41

0872578a4006b90c3?OpenDocument.

The SIP also exempts industrial processes from particulate matter limits during breakdown and 

maintenance:

Temporary operational breakdowns or cleaning of air pollution equipment for any 

process are permitted provided the owner or operator immediately advises the 

department of the circumstances and outlines an acceptable corrective program 

and provided such operations do not cause an immediate public health hazard.

Id. § 33-15-05-01(2)(a)(1), available at

https://yosemite.epa.gov/R8/R8Sips.nsf/9880b8bc95f12ee787256b5f00549f2e/e7f35b4d7da51d9

c872578a400717611?OpenDocument.

Analysis

Both pollutant and source category specific exemptions are contrary to the Act and EPA policy 

because they do not consider each instance of excess emissions a violation of the applicable 

standard, and because they could be construed to preclude EPA and citizen enforcement. 1982 

Memorandum 1 & Attachment at 1; 1999 Memorandum at 1-2.

Remedy

North Dakota should remove the pollutant and source category specific exemptions in N.D. 

Admin. Code §§ 33-15-03-04(4) and 33-15-05-01(2)(a)(1) from its SIP.
Sierra Club SSM Petition to EPA Page 60 of 80

Ohio

SIP Provisions

The Ohio SIP contains general provisions governing malfunctions and scheduled maintenance. 

Ohio Admin. Code 3745-15-06, available at

http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By%20State%20Main%20View!OpenVi

ew&Start=1&Count=30&Expand=5.5.6#5.5.6. Generally, air pollution control equipment must 

be kept in operation whenever the source is operating. Id. 3745-15-06(A)(2). However, “[t]he 

director shall authorize the shutdown of air pollution control equipment if, in his judgment, the 

situation justifies continued operation of the sources.” Id. 3745-15-06(A)(3). The malfunction 

provision contains an express enforcement discretion approach to excess emissions, stating that 

“[t]he director shall take appropriate action ...” under certain listed circumstances. Id. 3745-15-

06(C)

The SIP also contains several source category and pollutant specific exemptions. The 

regulations limiting emissions from portland cement kilns contain an automatic exemption 

during periods of SSM. Id. 3745-14-11(D). There are also exemptions from the visible 

particulate matter limits during malfunctions. Id. 3745-17-07(A)(3)(c); see also id. 3745-17-

07(B)(11)(f) (similar exemption for fugitive dust). The SIP contains exemptions for HMIWI 

during startup, shutdown and malfunction. Id. 3745-75-02(E), (J), 3745-75-03(I), 3745-75-

04(K), (L). Foregoing provisions available at

http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By%20State%20Main%20View!OpenVi

ew&Start=1&Count=30&Collapse=5.5#5.5. 

Analysis

The effect of the director’s authorization of scheduled maintenance under rule 3745-15-06(A)(3) 

is not clear. One plausible interpretation of the rule would excuse any excess emissions during 

the time that the director had authorized operation without air pollution control equipment. This 

interpretation is contrary to the enforcement scheme of the Act because it allows a decision by 

the state to preclude EPA and citizen enforcement. 1999 Memorandum at 3; Approval and 

Disapproval and Promulgation of Colorado Affirmative Defense Provisions for Startup and 

Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

In addition, the director’s decision to authorize shutdown of air pollution control equipment 

during scheduled maintenance is inconsistent with EPA policy, which considers excess 

emissions during scheduled maintenance violations unless “a source can demonstrate that such 

emissions could [not] have been avoided through better scheduling for maintenance or through 

better operation and maintenance practices.” 1983 Memorandum, Attachment at 3. The Ohio 

regulation does not have similar considerations.

The exemptions of Ohio Admin. Code 3745-14-11(D), 3745-17-07(A)(3)(c), 3745-17-

07(B)(11)(f), 3745-75-02(E), (J), 3745-75-03(I) and 3745-75-04(K), (L) violate the fundamental 

requirement that all excess emissions be considered violations and interfere with EPA and citizen 

enforcement.
Sierra Club SSM Petition to EPA Page 61 of 80

Remedy

Ohio should clarify that the authorization to shut down air pollution control equipment in Ohio 

Admin. Code 3745-15-06(A)(3) does not exempt the source from compliance with emission 

limits and standards and further amend the rule to include the conditions on excess emissions 

during scheduled maintenance in the 1983 Memorandum at 3. The exemptions of Ohio Admin. 

Code 3745-14-11(D), 3745-17-07(A)(3)(c), 3745-17-07(B)(11)(f), 3745-75-02(E), (J), 3745-75-

03(I) and 3745-75-04(K), (L) should be removed entirely.

Oklahoma

SIP Provisions

The Oklahoma SIP creates an exemption from air quality standards and emissions limits during 

periods of SSM. Okla. Admin. Code §§ 252:100-9-1 to -8, available at

http://yosemite.epa.gov/r6/Sip0304.nsf/dc994a1edbcf32c08625651c00552ed8/b9c9ff285b7172a

5862575b5006d5a52!OpenDocument. Section 252:100-9-3 provides:

(a) Reporting. All excess emissions shall be reported as provided in this Chapter. 

The operation of any air pollution source which results in excess emissions 

caused by malfunction, shutdown, startup or regularly scheduled maintenance 

is in violation of the applicable air pollution control rule unless the owner or 

operator of the facility has complied with the notification requirements 

prescribed in this Subchapter.

(b) Demonstration of cause. The owner or operator of the facility must 

demonstrate to the satisfaction of the Director of the Air Quality Division, in 

a timely manner prescribed by 252:100-9-4 and 252:100-9-5, that:

(1) the excess emissions resulted from either malfunction or damage to the 

air pollution control or process equipment, sudden and unavoidable 

abnormal operating conditions during startup or shutdown, or 

scheduled maintenance;

(2) measures, such as the use of off-shift and overtime labor, have been 

utilized to effect repairs and minimize emissions; and,

(3) excess emissions do not occur with such frequency that negligent, 

marginal or unsafe operation is indicated.

Okla. Admin. Code § 252:100-9-3.

Section 4 requires that maintenance be performed when process equipment is shutdown, “when 

practicable.” Id. § 252:100-9-4(a). When maintenance is scheduled for a time when process 

equipment is running, the regulation requires the owner or operator to give advance notice to the 

Director. Id. § 252:100-9-4(b). The required notice includes a justification of the decision to 

perform maintenance without shutting down the process equipment. Id. § 252:100-9-4(b)(4).
Sierra Club SSM Petition to EPA Page 62 of 80

Analysis

Oklahoma’s SIP currently contains provisions that implement an exemption from air standards 

and emission limits during SSM conditions. The approved SSM provisions in SIP are not 

consistent with the CAA and EPA policy on exemptions from enforcement during SSM.

Oklahoma’s existing SSM SIP regulations do not clearly implement either an enforcement 

discretion approach or an affirmative defense approach. The plain meaning of the SSM 

provisions, in fact, seems to empower the Director to excuse violations entirely and thereby 

preclude enforcement by EPA or citizens. Specifically, if an owner or operator satisfies the 

Director of the regulatory criteria under section 3(b), then the language of section 3(a) creates an 

exemption for the source and strongly implies that the excess emission is not a violation at all. 

Okla. Admin. Code § 252-100-9-3(a) should be rephrased to clarify that the Director’s decision 

not to enforce an excess emission does not excuse the violation and does not preclude 

enforcement by EPA or citizens. 

Oklahoma’s SIP seems to exempt excess emissions during scheduled maintenance from 

enforcement entirely. Okla. Admin. Code § 252:100-9-3(b)(1). Under the Oklahoma SIP 

provision, the first required showing that an owner or operator must make to avoid enforcement 

of an emission limitation is that the excess emission resulted from one of three causes. Those 

three causes are “[1] either malfunction or damage to the air pollution control or process 

equipment, [2] sudden and unavoidable abnormal operating conditions during startup or 

shutdown, or [3] scheduled maintenance.” Id. (emphasis and numbering added).75

Although section 4 places some constraints on when maintenance should be performed, the reach 

of the exemption for scheduled maintenance remains impermissibly broad. EPA recognizes an 

excuse for excess emissions during scheduled maintenance only when a violation is unavoidable. 

1983 Policy Statement, supra note 6, Attachment at 3. The Oklahoma regulations, on the other 

hand, allow scheduled maintenance as an excuse whenever concurrent shutdown of process 

equipment would not be practicable. Okla. Admin. Code § 252:100-9-4(a).

 The second 

category of causes is basically a malfunction during startup or shutdown, which is properly 

treated like any other malfunction. EPA has been consistently clear, though, that the third 

category of causes in Oklahoma’s list, scheduled maintenance, is not a general excuse for excess 

emissions. 1983 Memorandum, Attachment at 3; see also Approval and Promulgation of 

Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, Maintenance, and 

Malfunction Activities, 75 Fed. Reg. 26,892, 26,896 (June 1, 2010). In EPA’s judgment, 

scheduled maintenance, like any other planned phase of operation, is subject to the normal 

emission limits. 1983 Memorandum, Attachment at 3.

 75 It is clear that there are three distinct conditions here rather than two. First, the comma after “startup or 

shutdown,” and the lack of any comma after “startup” indicate that scheduled maintenance is its own category of 

exception. Oklahoma’s response to EPA’s request for clarification also indicates that the intent of this regulation is 

not just to excuse scheduled maintenance itself rather than abnormal conditions during scheduled maintenance. 

Revision to Oklahoma Regulation 1.5, 49 Fed. Reg. at 3,084 (stating that “the intent of this regulation [is] to allow 

the [Department] not to pursue enforcement of violations due to removing control equipment from operation to 

perform maintenance . . . .”).
Sierra Club SSM Petition to EPA Page 63 of 80

Remedy

EPA should require Oklahoma to amend Okla. Admin. Code § 252:100-9-3(a) so that it is clear 

that the Director’s decision not to enforce in the case of excess emissions does not excuse the 

violation and has no effect on EPA or citizen enforcement actions. “Scheduled maintenance” 

should be removed from Okla. Admin. Code § 252:100-9-3(b)(1) as a permissible excuse for 

excess emissions.

Oregon

SIP Provisions

Oregon’s SIP contains what appears intended to be an enforcement discretion approach to excess

emissions during SSM. Or. Admin. R. 340-028-1400 and 340-028-1450, available at

http://yosemite.epa.gov/r10/AIRPAGE.NSF/283d45bd5bb068e68825650f0064cdc2/e4e37b053f

78d12f88256cde008071c3?OpenDocument. According to the SIP, “[e]missions of air 

contaminants in excess of applicable standards or permit conditions are considered unauthorized 

and subject to enforcement action ... .” Id. 340-028-1400. “In determining if a period of excess 

emissions is avoidable, and whether enforcement action is warranted, the Department, based 

upon information submitted by the owner or operator, shall consider whether the following 

criteria are met ... .” Id. 340-028-1450

Analysis

Oregon’s general SSM approach is ambiguous and could possibly be interpreted contrary to the 

Act and to EPA policy. The regulation clearly gives the Department the authority to decide 

whether “enforcement action is warranted.” Id. 340-028-1450. This phrase could simply mean 

that the Department decides that the State will not proceed to enforce. But it could also be 

interpreted to give the Department authority to decide that enforcement is not warranted at all, by 

anyone, which would preclude action by EPA and by citizens both for civil penalties and for 

injunctive relief. This interpretation is inconsistent with the Act and EPA policy. 1999 

Memorandum at 3.

Remedy

Oregon should clarify the approach of Or. Admin. R. 340-028-1450 so that it is unambiguously 

connected to the State’s enforcement discretion.

Rhode Island

SIP Provisions

The Rhode Island SIP contains a case by case petition procedure whereby a source can continue 

to operate during a malfunction of its control equipment:

In the event that the malfunction of an air pollution control system is expected or 

may reasonably be expected to continue for longer than 24 hours and if the owner 

or operator wishes to operate the source on which it is installed at any time 
Sierra Club SSM Petition to EPA Page 64 of 80

beyond that period, the Director shall be petitioned for a variance under Section 

23-25-15 of the General Laws of Rhode Island, as amended.

25-4-13 R.I. Code R. 16.2, available at

http://www.epa.gov/region1/topics/air/sips/ri/2003_RI_reg_16.pdf.

The statutory provision that authorizes this variance reads:

(a) Upon application and after a hearing, the director may suspend the 

enforcement of the whole or any part of this chapter or of any rule or regulation 

promulgated under this chapter in the case of any person who shall show that the 

enforcement of this chapter would constitute undue hardship on that person 

without a corresponding benefit or advantage obtained by it; provided, that no 

suspension shall be entered deferring compliance with a requirement of this 

chapter or the rules and regulations promulgated under this chapter, unless that 

deferral is consistent with the provisions and procedures of the federal Clean Air 

Act, 42 U.S.C. § 7401 et seq.

...

(d) Notwithstanding the limitations of this section, the director may, upon 

application, defer compliance with the whole or any part of this chapter or of any 

rule or regulation promulgated under this chapter where compliance is not

possible because of breakdowns or malfunctions of equipment, acts of God, or 

other unavoidable casualties; provided, that this order shall not defer compliance 

for more than three (3) months.

R.I. Gen. Laws § 23-25-15 (formerly codified at R.I. Gen. Laws § 23-23-15).

In addition to the petition procedure for continued operation, the Rhode Island SIP contains 

exemptions for boilers and internal combustion engines that are used on a stand-by or emergency 

basis. 25-4-13 R.I. Code R. §§ 13.4.1(a) (exempts boilers used on a stand-by or emergency basis 

from particulate matter limitations), 27.2.3 (exempts emergency stand-by internal combustion 

engines from NOX limits). HMIWI seem to be exempt from all limits during startup, shutdown 

and malfunction. 25-4-39 R.I. Code R. §§ 39.5.4, 39.7.5(a), 39.7.6(b), 39.7.7(e), 39.7.8(f), 

39.7.9(e), 39.7.11(c)(2). Foregoing provisions available at

http://www.epa.gov/region1/topics/air/sips/sips_ri.html. 

Analysis

The statutory variance provision of R.I. Gen. Laws § 23-25-15 does not appear to be SIP 

approved. See 40 C.F.R. §§ 52.2070-52.2089. However, it clearly authorizes the director to 

suspend enforcement and defer compliance. The effect of the permission to continue operation 

during periods of excess emissions, granted under section 23-25-15, is not clear. Arguably, a 

variance from the director could excuse compliance and thereby prevent EPA and citizen 

enforcement. This type of provision is fundamentally at odds with the enforcement structure of 

Title I of the Clean Air Act and EPA policy. 1999 Memorandum at 3; Approval and Disapproval 
Sierra Club SSM Petition to EPA Page 65 of 80

and Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 

Fed. Reg. 8958, 8959-60 (Feb. 22, 2006).

Remedy

Rhode Island should remove that portion of 25-4-13 R.I. Code R. 16.2 that authorizes variances 

arguably permitting excess emissions during the malfunction of air pollution control equipment.

South Carolina

SIP Provisions

The South Carolina SIP contains no generally applicable SSM provision. There are, however, 

several source category and pollutant specific exemptions. Federally approved SIP available at 

http://www.epa.gov/region4/air/sips/sc/content.htm. There are exemptions to opacity limits for 

fuel burning operations, S.C. Code Ann. Regs. 61-62.5 St 1(C) (“The opacity standards set forth 

above do not apply during startup or shutdown.”), exemptions to NOX limits for startup and 

shutdown burners operated less than 500 hours per year, id. 61-62.5 St 5.2(I)(b)(14), and 

exemptions from sulfur limits for kraft pulp mills during startup, shutdown and malfunction, id.

61-62.5 St 4(XI)(D)(4).

The exemption for special purpose burners provides:

The following sources are exempt from all requirements of this regulation unless 

otherwise specified: ... (14) Special use burners, such as start-up/shut-down 

burners, that are operated less than 500 hours a year.

S.C. Code Ann. Regs. 61-62.5 St 5.2(I)(b)(14).

The exemptions from sulfur limits for kraft pulp mills provides:

The Department will consider periods of excess emissions reported under Subpart 

D(3) of this section to be indicative of a violation if:

a. the number of 12 hour exceedances from recovery furnaces is greater than 

1% of the total number of contiguous 12 hour periods in a quarter 

(excluding periods of startup, shutdown, or malfunction and periods when 

the recovery furnace is not operating).

b. the number of excess emissions from lime kiln exceeds 2% of the total 

number of possible contiguous periods of excess emissions in a quarter 

(excluding periods of startup, shutdown, or malfunction and periods when 

the lime kiln is not operating).

c. the number of 12 hour exceedances from incinerators is greater than 2% of 

the total number of contiguous periods in a quarter (excluding periods of 

startup, shutdown, or malfunction and periods when the incinerator is not 

operating).

d. the Department determines that the affected equipment, including air 

pollution control equipment, is not maintained and operated in a manner 
Sierra Club SSM Petition to EPA Page 66 of 80

which is consistent with good air pollution control practice for minimizing 

emissions during periods of excess emissions.

S.C. Code Ann. Regs. 61-62.5 St 4(XI)(D)(4).

Analysis

The source and pollutant specific exemptions violate the fundamental requirement that all excess 

emissions be considered violations and interfere with EPA and citizen enforcement. 1999 

Memorandum at 3; Approval and Disapproval and Promulgation of Colorado Affirmative 

Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006). 

None of the exemptions appear to meet the criteria for a source category specific rule from 

EPA’s policy. 1999 Memorandum, Attachment 4-5.

Remedy

South Carolina should remove S.C. Code Ann. Regs. 61-62.5 St 1(C) and 61-62.5 St 

5.2(I)(b)(14) from its SIP and revise S.C. Code Ann. Regs. 61-62.5 St 4(XI)(D)(4) to remove the 

language excluding periods of startup, shutdown and malfunction.

South Dakota

SIP Provisions

Although the South Dakota SIP has no general SSM provision, it does contain an exemption 

from the opacity limit during periods of startup, shutdown and malfunction. Section 74:36:12:01 

contains the generally applicable “[r]estrictions on visible emissions,” but the next section states 

that “[t]he provisions of § 74:36:12:01 do not apply in the following circumstances: ... (3) For 

brief periods during such operations as soot blowing, start-up, shut-down, and malfunctions.” 

S.D. Admin. R. 74:36:12:02(3), available at

https://yosemite.epa.gov/R8/R8Sips.nsf/c91f89cd1d5ab37387256b5f0054c4ef/56671c7c4c4b562

a87256b3c005d58dd?OpenDocument.

Analysis

The exemption from visible emission limits for soot blowing start-up, shut-down, and 

malfunctions is inconsistent with EPA policy. By carving out situation in which the opacity 

limitation does not apply, this provision fails to consider all excess emissions violations, the 

fundamental requirement of any SSM provision. 1982 Memorandum at 1; 1999 Memorandum at 

1.

Remedy

South Dakota should remove S.D. Admin. R. 74:36:12:02(3) from the SIP.
Sierra Club SSM Petition to EPA Page 67 of 80

Tennessee

SIP Provisions

The Tennessee SIP explicitly grants the Technical Secretary the option to “excuse or proceed 

upon” violations. Tenn. Comp. R. & Regs. 1200-3-20-.07(1), available at

http://www.epa.gov/region4/air/sips/tn/CHAPT-20.pdf. The regulations contemplate excuses not 

only for malfunctions, but also for startup and shutdown. Id. 1200-3-20-.07(3) (referring to “an 

excuse for malfunctions, startups, and shutdowns in causing the excessive emissions”). During 

startup and shutdown the regulations require “[a]ir contaminant sources” to “take all reasonable 

measures to keep emissions to a minimum,” but this duty is not tied to the excuse provision. 

Id.1200-3-20-.02(1). There is no corresponding duty to minimize emissions during 

malfunctions. Id.

Analysis

Tenn. Comp. R. & Regs. 1200-3-20-.07(1) and (3) should be changed to clarify that all excess 

emissions are violations regardless of cause and notwithstanding “excuse” by the Technical 

Secretary, and that “excuse” by the Technical Secretary has no effect on the ability of EPA or 

citizens to bring enforcement actions for the “excused” excess emissions. The Tennessee SSM 

provisions can be (and have been) construed as a blanket exemption from enforcement at the 

unfettered discretion of the Technical Secretary. The Tennessee SIP empowers the Technical 

Secretary to “excuse” emission violations associated with startup, shutdown, or malfunction, but 

does not define the nature of that excuse. Specifically, the SIP presents the Technical Secretary 

with the option either to “excuse or proceed upon the violation.” Tenn. Comp. R. & Regs. 1200-

3-20-.07(1). If excuse means only the opposite of proceed upon, then the regulatory scheme 

simply makes explicit the type of enforcement discretion that any enforcement authority 

inherently possesses.

When approving the Tennessee Title V permitting program, EPA construed the Tennessee SSM 

provisions in this manner. EPA stated that “the regulation stipulates that all excess emissions be

viewed as violations ... .” Clean Air Act Final Full Approval of Tennessee and Memphis-Shelby 

County Operating Permit Programs, 66 Fed. Reg. 56,996, 56,997 (Nov. 14, 2001). “EPA [did] 

not believe that Tennessee can use [this language] ... to excuse violations ... .” Approval of 

Tennessee and Memphis-Shelby County Operating Permit Programs, 66 Fed. Reg. at 56,997. 

The language in the permit was identical to the language of rule 1200-3-20-.06, the revised, nonSIP-approved SSM provision.

However, at least one court has construed the “excuse” to be essentially an exemption. In 

National Parks Conservation Ass’n v. Tennessee Valley Authority, 175 F. Supp. 2d 1071 (E.D. 

Tenn. 2001), the federal district court construed permit provisions containing similar “excuse”

language as exemptions:

[T]he . . . permits . . . allow more exceedances for “de minimis” exceedances for 

up to 2% of the time each calendar year with no explanation necessary for the 

exceedance and other excused periods for permitted start-up and shut-down and 

certain excused malfunctions.
Sierra Club SSM Petition to EPA Page 68 of 80

Id. at 1078.

EPA has subsequently noted the danger that such permit provisions or the underlying regulations 

could be applied as blanket exemptions. In response to two Title V petitions involving 

Tennessee permits, EPA reiterated its intent to monitor the state’s application of the “excuse” 

provision to make sure that violations are not “excused.” EPA stated that it did not believe that 

Tennessee could use the permit condition or the underlying regulation to excuse violations. In 

the Matter of TVA John Sevier Fossil Plant Rogersville, Tennessee and TVA Kingston Fossil 

Plant Harriman, Tennessee Electric Power Generation Petition IV-2002-6 5 (Jul. 2, 2003) 

[hereinafter TVA John Sevier/Kingston Order], available at

http://www.epa.gov/region07/air/title5/petitiondb/petitions/tva_decision2002.pdf; In the Matter 

of TVA Gallatin Power Plant Gallatin, Tennessee and TVA Johnsonville Power Plant New 

Johnsonville, Tennessee Electric Power Generation Petition IV-2003-4 6 (Jul. 29, 2004) 

[hereinafter TVA Gallatin/Johnsonville Order], available at 

http://www.epa.gov/region07/air/title5/petitiondb/petitions/tva_decision2003.pdf. However, 

EPA noted that it would continue to monitor the State’s use of rule 1200-3-20-.06 in permits to 

ensure that violations are not excused. TVA John Sevier/Kingston Order at 5; TVA 

Gallatin/Johnsonville Order at 6 n.2.

The existing “excuse” language is sufficiently ambiguous that it should be revised. Otherwise, 

courts may continue to construe the language as providing a blanket exemption, and in any event 

EPA will be required to monitor the State’s case by case implementation of the excuse provision.

Tennessee’s SIP also creates an exception for visible emissions levels. The SSM provisions 

exclude excess visible emissions from the general requirement that the state “automatically” 

issue a notice of violation for all excess emissions, Tenn. Comp. R. & Regs. 1200-3-20-.07(1),

referencing a rule that “due allowance may be made for visible emissions in excess of that 

permitted in this chapter which are necessary or unavoidable due to routine startup and shutdown 

conditions,” id. 1200-3-5-.02(1).

When incorporated into a permit, this rule operates as a blanket exemption for opacity violations. 

The SIP lacks any standard by which such emissions are to be measured. The chapter on visible 

emissions refers to “the requirements of Chapter 1200-3-20,” on malfunctions, startup and 

shutdown. Id. 1200-3-5-.02(1). But Chapter 1200-3-20 creates an unqualified exception for 

“Chapter 1200-3-5-.02(1).” Id. 1200-3-20-.07(1). This circular reference does not appear to 

constrain the Technical Secretary’s decision to exempt a facility’s excess emissions during SSM 

conditions. EPA’s interpretation of the Act prohibits automatic exemptions for both malfunction 

conditions and startup and shutdown conditions. 

Remedy

Tenn. Comp. R. & Regs. 1200-3-20-.07 should be revised to make clear that it does not offer an 

enforcement exemption for excess emissions associated with SSM. In addition, the language 

should be amended to clarify that decisions by the Technical Secretary or other State authorities 

do not limit the ability of citizens or EPA to bring or prevail in enforcement proceedings 

regarding SSM-related excess emissions. The exemption for excess visible emissions due to 
Sierra Club SSM Petition to EPA Page 69 of 80

startup and shutdown should be removed. Tenn. Comp. R & Regs. 1200-3-5-.02(1) should be 

eliminated entirely.

Knox County

SIP Provisions

The Knox County Air Pollution Control Board has promulgated regulations that are also part of 

the EPA-approved SIP. Approval and Promulgation of Implementation Plans, 37 Fed. Reg. 

23,085 (Oct. 28, 1972); Approval and Promulgation of Knox County Portion of the Tennessee 

SIP, 54 Fed. Reg. 31,953 (Aug. 3, 1989).

The Knox County Air Pollution Control Regulations (“Knox County Regulations”) require 

owners and operators to report SSM conditions. Knox County Regulation 34.1(A), (C). Knox 

County Regulation 34.1(A) requires an owner or operator to report its intent to shutdown air 

pollution control equipment for “necessary or scheduled maintenance” at least 24 hours in 

advance. Knox County Regulation 32.1(C) specifies that “[a] determination that there has been a 

violation of these regulations or orders issued pursuant thereto shall not be used in any law suit 

brought by any private citizen.”

Analysis

Knox County Regulation 32.1(C) should clarify the effect of an administrative determination on 

citizen suits. Knox County Regulation 32.1(C) goes beyond, and arguably undermines, the 

express authorization of citizen enforcement suits under the CAA. Knox County should remove 

that provision from its regulations. In addition, the Regulations should be amended to state 

affirmatively that a County decision not to pursue enforcement of excess emissions has no effect 

on the ability of EPA or citizens to bring enforcement actions regarding such excess emissions.

Remedy

Tennessee and/or Knox County should remove Knox County Regulation 32.1(C) from the SIP or 

revise it to state that a County decision not to pursue enforcement has not effect on enforcement

by EPA or citizens.

Memphis/Shelby County

SIP Provisions

The Shelby County Code incorporates by reference the Tennessee SSM provisions, including 

“all such additions, deletions, changes and amendments as may subsequently be made ... .” 

Shelby County Code § 16-87, available at

http://www.epa.gov/region4/air/sips/tn/memph/16.4.pdf.
Sierra Club SSM Petition to EPA Page 70 of 80

Analysis

Once the State of Tennessee changes its regulations, those provisions will be effective in the 

Shelby County Code. However, as technical point, those regulations will not be effective as part 

of the SIP until they are proposed to EPA for approval.

Remedy

Once the Tennessee state regulations have been amended to address the issues identified above, 

Tennessee and/or Memphis and Shelby County should propose that the amended regulations be 

approved into the SIP.

Virginia

SIP Provisions

The Virginia SIP provides exemptions for excess emissions during malfunctions. 9 Va. Admin. 

Code § 5-20-180(G), available at

http://yosemite.epa.gov/r3/r3sips.nsf/9eeb842c677f8f5d85256cfd004c3498/2caa1d36e5ca17da8

5256d20006f4518/$FILE/ATTRBGK8/va_9_vac_5_chapter_20.pdf. The provision reads:

No violation of applicable emission standards or monitoring requirements shall 

be judged to have taken place if the excess emissions or cessation of monitoring 

activities is due to a malfunction, provided that:

1. The procedural requirements of this section are met or the owner has 

submitted an acceptable application for a variance, which is subsequently 

granted;

2. The owner has taken expedient and reasonable measures to minimize 

emissions during the breakdown period;

3. The owner has taken expedient and reasonable measures to correct the 

malfunction and return the facility to a normal operation; and

4. The source is in compliance at least 90% of the operating time over the 

most recent 12-month period.

Id. (emphasis added).

Analysis

The Virginia SSM provision is inconsistent with the Act and EPA policy. The provision states 

that “[n]o violation ... shall be judged to have taken place ...,” contrary to the fundamental 

requirement that all excess emissions be considered violations. 1982 Memorandum at 1; 1999 

Memorandum at 1 & Attachment at 1-2. Although the regulation provides substantive criteria, 

which fall far short of EPA policy, it fails to establish any procedure through which the criteria 

are to be evaluated. The regulations are therefore susceptible to interpretation as an exemption to 

be determined or granted by the State authority, which could preclude EPA and citizen 

enforcement. 1999 Memorandum at 3; Approval and Disapproval and Promulgation of Colorado 
Sierra Club SSM Petition to EPA Page 71 of 80

Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 

2006).

Remedy

Virginia should remove 9 Va. Admin. Code § 5-20-180(G) from its SIP or revise it so that all 

excess emissions are considered violations and that the authority of EPA and citizens to enforce 

the SIP standards and limitations is clearly secured.

Washington

SIP Provisions

The Washington SIP provides an excuse for “unavoidable” excess emissions. Wash. Admin. 

Code § 173-400-107, available at

http://yosemite.epa.gov/r10/airpage.nsf/f3f22921988a261b882569e5005ee8bb/c901b85ca16841

b588256a3e005c1369?OpenDocument. Unavoidable excess emissions may occur during startup 

or shutdown, id. § 173-400-107(4), scheduled maintenance, id. § 173-400-107(5), or upsets, id. § 

173-400-107(6). “Excess emissions determined to be unavoidable under the procedures and 

criteria in this section shall be excused and not subject to penalty.” 173-400-107(2) (emphasis 

added). Relief under any of the three subsections (4), (5), of (6) requires that the source follow 

the reporting procedures of subsection (3), id. § 173-400-107(4), (5), (6).

The showings required to obtain relief for excess emissions during startup or shutdown and 

scheduled maintenance reflect the EPA guidance on enforcement discretion almost verbatim. 

During startup or shutdown, excess emissions:

shall be considered unavoidable provided the source ... adequately demonstrates 

that the excess emissions could not have been prevented through careful planning 

and design and if a bypass of control equipment occurs, that such a bypass is 

necessary to prevent loss of life, personal injury, or severe property damage.

Id. § 173-400-107(4); c.f. 1983 Memorandum, Attachment at 3.

During scheduled maintenance, excess emissions “shall be considered unavoidable if the source 

... adequately demonstrates that the excess emissions could not have been avoided through 

reasonable design, better scheduling for maintenance or through better operation and 

maintenance practices.” Wash. Admin. Code § 173-400-107(5) (emphasis added); c.f. 1983 

Memorandum, Attachment at 3. The emphasized phrase indicates an additional element of the 

showing that is in addition to the EPA criteria.

The showing required to obtain relief for excess emissions during upsets, on the other hand, are 

much less stringent that EPA criteria. The source must demonstrate that:

(a) The event was not caused by poor or inadequate design, operation, 

maintenance, or any other reasonably preventable condition; (b) The event was 

not of a recurring pattern indicative of inadequate design, operation, or 
Sierra Club SSM Petition to EPA Page 72 of 80

maintenance; and (c) The operator took immediate and appropriate corrective 

action in a manner consistent with good air pollution control practice for 

minimizing emissions during the event, taking into account the total emissions 

impact of the corrective action, including slowing or shutting down the emission 

unit as necessary to minimize emissions, when the operator knew or should have 

known that an emission standard or permit condition was being exceeded.

Wash. Admin. Code § 173-400-107(6).

Analysis

The Washington SSM provision is inconsistent with EPA policy because it provides an excuse 

for excess emissions rather than considering all emissions violations of the applicable standard. 

The Washington approach to SSM is unclear in its application to enforcement actions brought by 

EPA or by citizens. Section 173-400-107 is drafted as if the State were the sole enforcement 

authority. The Washington provision is worded as if it were an affirmative defense to penalties 

yet uses the criteria for enforcement discretion and is ambiguous about what decision-making 

authority is empowered to determine whether source has met its burden of proof for relief. One 

plausible interpretation of subsection (2) is that the Department of Ecology itself determines 

what excess emissions are “excused and are not subject to penalty.” Because the regulation 

could be interpreted to bar EPA and citizen enforcement, it violates the Clean Air Act and is 

contrary to EPA policy.

Remedy

Washington should remove Wash. Admin. Code § 173-400-107 from its SIP. Alternatively, if 

the provision is to be retained, it must be revised to clearly comply with the CAA and EPA 

guidance. The provision must stipulate that all excess emissions are violations and preserve the 

authority of EPA and citizens to enforce the SIP standards and limitations.

West Virginia

SIP Provisions

The West Virginia SIP contains no generally applicable SSM regulation. There are, however, 

many source category and pollutant specific exemptions, as summarized in the following table.

West Virginia’s SIP is available at

http://yosemite.epa.gov/r3/r3sips.nsf/SIPIndex!OpenForm&Start=1&Count=1000&Expand=6&

Seq=1. 

Table summarizing source and pollutant specific SSM provisions in the West Virginia SIP.

To Prevent and Control Particulate Air Pollution from Combustion of Fuel in Indirect Heat Exchangers

W. Va. Code R. § 45-2-9.1 Automatic Exemption: “The visible emission standards set forth in section 3 shall 

apply at all times except in periods of start-ups, shut-downs, and malfunctions.”

W. Va. Code R. § 45-2-10.1 Discretionary Exemption: “In the event of an unavoidable shortage of fuel ... the 

Director may grant an exception to the otherwise applicable visible emission 

standards for a period not to exceed fifteen (15) days ...”
Sierra Club SSM Petition to EPA Page 73 of 80

To Prevent and Control Air Pollution from the Operation of Hot Mix Asphalt Plants

W. Va. Code R. § 45-3-3.2 Alternative Limit: “The provisions of subsection 3.1 shall not apply to smoke 

and/or particulate matter emitted during the start-up or shutdown of an operation 

...”

W. Va. Code R. § 45-3-7.1 Discretionary Exemption: “Due to unavoidable malfunctions of equipment, 

emissions exceeding those provided for in this rule may be permitted by the 

Director for periods not to exceed two (2) days upon specific application to the 

Director.”

To Prevent and Control Air Pollution from the Operation of Coal Preparation Plants and Coal Handling Operations

W. Va. Code R. § 45-5-13.1 Discretionary Exemption: “Due to unavoidable malfunctions of equipment, 

emissions exceeding those set forth in this rule may be permitted by the Director, 

upon specific application to the Director, for periods not to exceed ten (10) days.”

Control of Air Pollution From Combustion of Refuse

W. Va. Code R. § 45-6-8.2 Discretionary Exemption: “Due to an unavoidable malfunction of equipment, 

emissions exceeding any limitation in this rule may be permitted by the Secretary 

for periods not to exceed five (5) days upon specific application to the Secretary.”

To Prevent and Control Particulate Matter Air Pollution from Manufacturing Processes and Associated Operations

W. Va. Code R. § 45-7-9.1 Discretionary Exemption: “Due to unavoidable malfunction of equipment, 

emissions exceeding those set forth in this rule may be permitted by the Director 

for periods not to exceed ten (10) days upon specific application to the Director.”

W. Va. Code R. § 45-7-10.3 Automatic Exemption: “Maintenance operations shall be exempt from the 

provisions of section 4 provided that at all times the owner or operator shall 

conduct maintenance operations in a manner consistent with good air pollution 

control practice for minimizing emissions.”

W. Va. Code R. § 45-7-10.4 Alternative Limit: “An owner or operator may apply for an alternative visible 

emission standard for start-up and shutdown periods, on a case-by-case basis, by 

filing a written petition with the Director”

To Prevent and Control Air Pollution from the Emission of Sulfur Oxides

W. Va. Code R. § 45-10-9.1 Discretionary Exemption: “Due to unavoidable malfunction of equipment or 

inadvertent fuel shortages, emissions exceeding those provided for in this rule may 

be permitted by the Director for periods not to exceed ten (10) days upon specific 

application to the Director.”

Regulation to Prevent and Control Air Pollution from the Emission of Volatile Organic Compounds

W. Va. Code R. § 45-21-9.3 Discretionary Exemption: “If the provisions of this regulation cannot be satisfied 

due to repairs made as the result of routine maintenance or in response to the 

unavoidable malfunction of equipment, the Chief may permit the owner or 

operator of a source subject to this regulation to continue to operate said source for 

periods not to exceed 10 days upon specific application to the Chief.”

Control of Ozone Season Nitrogen Oxides Emissions

W. Va. Code R. § 45-40-100.8 Automatic Exemption: “The requirements of subsections 100.3, through 100.7 will 

not apply to the following periods of operation: 100.8.a. Start-up and shut-down 

periods and periods of malfunction, not to exceed 36 consecutive hours; and 

100.8.b. Regularly scheduled maintenance activities.”

Analysis

The SSM provisions in the West Virginia SIP come in four basic patterns. The automatic 

exemptions of W. Va. Code R. §§ 45-2-9.1, 45-7-10.3 and 45-40-100.8 contravene the 

fundamental requirement that all excess emissions be considered violations. 1982 Memorandum 

at 1; 1999 Memorandum at 1 & Attachment at 1-2. The discretionary exemption provisions of 

W. Va. Code R. § 45-2-10.1, 45-3-7.1, 45-5-13.1, 45-6-8.2, 45-7-9.1, 45-10-9.1 and 45-21-9.3 

allow a decision by the state to preclude enforcement by EPA and citizens, contrary to the 
Sierra Club SSM Petition to EPA Page 74 of 80

enforcement structure of the CAA. 1999 Memorandum at 3; Approval and Disapproval and 

Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. 

Reg. 8958, 8959-60 (Feb. 22, 2006). The automatic alternative limit in W. Va. Code R. § 45-3-

3.2 is not sufficiently justified under the criteria for source category specific rules. 1999 

Memorandum, Attachment at 4-5. The discretionary alternative limit in W. Va. Code R. § 45-7-

10.4 allows a decision of the state to preclude enforcement by EPA and citizens.

Remedy

West Virginia should remove the following regulations from its SIP: W. Va. Code R. §§ 45-2-

9.1, 45-2-10.1, 45-3-3.2, 45-3-7.1, 45-5-13.1, 45-6-8.2, 45-7-9.1, 45-7-10.3, 45-7-10.4, 45-10-

9.1, 45-21-9.3, and 45-40-100.8.

Wyoming

SIP Provisions

Wyoming recently revised is SSM regulation and adopted an enforcement discretion approach, 

Env-AQ-1 Wyo. Code R. § 5, which EPA then approved. Approval and Promulgation of 

Revisions to the Wyoming Air Quality Standards and Regulations, 75 Fed. Reg. 19,886 (Apr. 16, 

2010). The Wyoming SIP also contains an exemption for excess particulate matter emissions

from diesel engines during startup, malfunction and maintenance. ENV-AQ-1 Wyo. Code R. § 

2(d) (providing that “[the] limitation shall not apply during a reasonable period of warmup 

following a cold start or where undergoing repairs and adjustment following malfunction.”).

Analysis

The exemption for diesel engines is contrary to EPA policy for source category specific rules for 

startup and shutdown. 1999 Memorandum, Attachment at 4-5. First, source-specific must be 

limited to cases where no single source or small group of sources has the potential to cause an 

exceedance of the NAAQS or PSD increments. Id., Attachment at 5. In addition, there is 

nothing to indicate that the State addressed the feasibility of control strategies, minimization of 

the frequency and duration of startup and shutdown modes, worst-case emissions, impacts on 

ambient air quality, planning, design and operating processes, and documentation at the source. 

Id.

Remedy

Wyoming should remove ENV-AQ-1 Wyo. Code R. § 2(d) from its SIP or revise it in

accordance with EPA’s policy on source category specific rules for startup.
Sierra Club SSM Petition to EPA Page 75 of 80

CONCLUSION

WHEREFORE, petitioner requests that the Administrator:

I. rescind EPA’s policy allowing states to adopt affirmative defenses to excess emissions;

II. find that all SIPs containing an affirmative defense to penalties for excess emissions are 

substantially inadequate to comply with the requirements of the Clean Air Act and issue a 

call for each of the states with such a SIP, listed immediately below, to revise it in 

conformity with the requirements of the Act, pursuant to CAA § 110(k)(5):

Arizona................................. Ariz. Admin. Code § 18-2-310 and Maricopa County

Air Pollution Control Regulation 3,Rule 140, §§ 401, 402

Colorado..............................................5 Colo. Code Regs. § 1001-2(II.E) and (II.J)

District of Columbia ..............................................D.C. Mun. Regs. tit. 20, § 606.4

Illinois................................Ill. Admin. Code tit. 35, §§ 201.261, 201.262, 201.265

Kentucky....................................Jefferson County Air Quality Regulation 1.07 § 5

Michigan ................................................................ Mich. Admin. Code r. 336.1916

Mississippi .................................................. 11-1-2 Miss. Code R. §§ 10.1 and 10.3

New Mexico............. N.M. Code R. §§ 20.2.7.111, 20.2.7.112 and 20.2.7.113; and

III. find the following SIP provisions substantially inadequate to attain or maintain the 

NAAQS and to otherwise comply with the requirements of the CAA, pursuant to CAA § 

110(k)(5), and require the states to revise and propose to EPA for SIP approval 

provisions that comply with the Act. Specifically, petitioner requests:

1. that EPA require Alabama to remove both Ala. Admin. Code r. 335-3-14-

.03(1)(h)(1) and (1)(h)(2) from its SIP or else revise them so that all excess 

emissions are violations and no state decision may affect EPA or citizen 

enforcement;

2. that EPA require Alaska to remove Alaska Admin. Code tit. 18 § 50.240 from its 

SIP, or revised it to stipulate that all excess emissions are violations and preserve 

the authority of EPA and citizens to enforce the SIP standards and limitations;

3. that EPA require Arizona to revise Ariz. Admin. Code § 18-2-310: first, to 

stipulate that the affirmative defenses are not available where a single source or 

one of a small group of sources have the potential to cause an exceedance of the 

NAAQS or PSD increments; and, second, to include the second element from the 

EPA policy on affirmative defenses for startup and shutdown at 1999 

Memorandum, Attachment at 6;

i. that EPA require Arizona and/or Maricopa County to revise Maricopa 

County Air Pollution Control Regulation 3, Rule 140, §§ 401 and 402: 

first, so that the affirmative defenses are not available where a single 

source or one of a small group of sources have the potential to cause an 

exceedance of the NAAQS or PSD increments; and, second, to add the 
Sierra Club SSM Petition to EPA Page 76 of 80

second element from the EPA policy on affirmative defenses for startup 

and shutdown at 1999 Memorandum, Attachment at 6;

ii. that EPA require Arizona and/or Pima County to revise Rule 706 of the 

Rules and Regulations of the Pima County Air Pollution Control District 

so that is it clear that a decision by the Control Officer does not affect 

EPA or citizen enforcement;

4. that EPA require Arkansas to remove 014-01-1 Ark. Code R. §§ 19.1004(H) and 

19.602 from its SIP;

5. that EPA require Colorado to revise 5 Colo. Code Regs. § 1001-2(II.E) so that the 

affirmative defense for malfunctions is not available where a single source or one 

of a small group of sources who have the potential to cause an exceedance of the 

NAAQS or PSD increments;

6. that EPA require Delaware to remove the following provisions from its SIP: 7-

1100-1104 Del. Code Regs. § 1.5, 7-1100-1105 Del. Code Regs. § 1.7, 7-1100-

1108 Del. Code Regs. § 1.2, 7-1100-1109 Del. Code Regs. § 1.4, 7-1100-1114 

Del. Code Regs. § 1.3, 7-1100-1124 Del. Code Regs. § 1.4 and 7-1100-1142 Del. 

Code Regs. § 2.3.5;

7. that EPA require the District of Columbia: first, to revise D.C. Mun. Regs. tit. 20, 

§ 107.3 to clarify that the authorization to shut down air pollution control 

equipment does not exempt the source from compliance with emission limits and 

standards; and, second, remove the pollutant specific provisions in D.C. Mun. 

Regs. tit. 20, §§ 606.1, 606.2, 606.4 and 805(c)(2) from its SIP;

8. that EPA require Florida to remove Fla. Admin. Code Ann. r. 62-210.700 from 

the SIP in its entirety, or revise it so that all excess emissions are considered 

violations and no decision by the State can affect EPA and citizen enforcement;

9. that EPA require Georgia to remove Ga. Comp. R. & Regs. 391-3-1.02(2)(a)(7) 

from its SIP, or revise it so that all excess emissions are considered violations and 

so that no decision by the State can affect EPA and citizen enforcement;

10. that EPA require Idaho to clarify, in Idaho Admin. Code r. 58.01.01.131.03, that 

the Department’s decision that enforcement is not warranted has no effect on EPA 

or citizen enforcement;

11. that EPA require Illinois to remove Ill. Admin. Code tit. 35, §§ 201.261, 201.262 

and 201.265 from its SIP, or revise them so that all excess emissions are 

considered violations and no decision by the State can affect EPA and citizen 

enforcement;
Sierra Club SSM Petition to EPA Page 77 of 80

12. that EPA require Indiana to remove 326 Ind. Admin. Code 1-6-4 from its SIP, or 

revise it so that all excess emissions are considered violations and no decision by 

the State can affect EPA and citizen enforcement;

13. that EPA require Iowa: first, to remove Iowa Admin. Code r. 567-24.1(1) from its 

SIP entirely, or revise it so that all excess emissions are considered violations;

and, second, to revise Iowa Admin. Code r. 567-24.1(4) to clarify that the state’s 

decision not to enforce has no effect on enforcement by EPA or by citizens;

14. that EPA require Kansas to remove Kan. Admin. Regs. § 28-19-11 from its SIP, 

or revise it so that all excess emissions are considered violations and no decision 

by the State can affect EPA and citizen enforcement;

15. that EPA require Kentucky to remove 401 Ky. Admin. Regs. 50:055 § 1 from its 

SIP, or revise it so that all excess emissions are considered violations and no 

decision by the State can affect EPA and citizen enforcement;

i. that EPA require Kentucky and/or Jefferson County: first, to remove the 

Jefferson County Air Quality Regulation 1.07, §§ 2, 3, 4 and 7 from the 

SIP; and, second, if the emergency provision in Jefferson County Air 

Quality Regulation 1.07, § 5 is to remain in the SIP, revise it so that it is a 

true affirmative defense as EPA and the Code of Federal Regulations 

define that term;

16. that EPA require Louisiana to remove La. Admin. Code tit. 33, §§ III:1107, 

III:1507(A) & (B), III:2153(B)(1)(i), III:2201(C)(8) and III:2307(C)(1) & (2) 

from its SIP;

17. that EPA require Maine to remove both of the exemptions from its visible 

emission limits in 06-096-101 Me. Code R. §§ 3(E) and (4) from its SIP;

18. that EPA require Michigan to revise Mich. Admin. Code r. 336.1916: first, so that 

the affirmative defense is not available where a single source or one of a small 

group of sources have the potential to cause an exceedance of the NAAQS or PSD 

increments; and, second, so that the affirmative defense is not available for 

federally-promulgated technology-based standards;

19. that EPA require Minnesota to remove from its SIP the unconditional SSM 

exemption for flares at petroleum refineries in Minn. R. 7011.1415;

20. that EPA require Mississippi: first, to revise the affirmative defense provisions of 

11-1-2 Miss. Code R. § 10.1 to adhere to EPA’s policy on affirmative defenses by 

limiting it to actions for civil penalties, making it unavailable where a single 

source or a small group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments, and adding the fourth, sixth, seventh, eighth and 

ninth elements from the 1999 Memorandum; second, to remove from its SIP the 
Sierra Club SSM Petition to EPA Page 78 of 80

exemption of 11-1-2 Miss. Code R. § 10.2; and, third, to remove from its SIP the 

affirmative defense for maintenance in 11-1-2 Miss. Code R. § 10.3;

21. that EPA require Missouri: first, to remove Mo. Code Regs. Ann. tit 10 § 10-

6.050 from its SIP, or clarify the provision so that it cannot be construed to limit 

EPA or citizen enforcement; and, second, to remove the visible emission 

exemption in Mo. Code Regs. Ann. tit 10, § 10-6.220(3)(c) from its SIP;

22. that EPA require Montana to remove Mont. Admin. R. 17.8.334 from its SIP or 

revise it in accordance with EPA’s policy on source category specific rules for 

startup;

23. that EPA require Nebraska: first, to remove 129 Neb. Admin. Code § 11-35(001) 

from its SIP, or clarify the provision so that it cannot be construed to limit EPA or 

citizen enforcement; and, second, to remove 128 Neb. Admin. Code § 18-004.2 

from the SIP entirely;

i. that EPA require Nebraska and/or Lincoln and Lancaster County to 

clarify the approach of Lincoln-Lancaster County Air Pollution Control 

Program, art. 2, § 35 so that it unambiguously implements enforcement 

discretion and cannot be construed to limit EPA or citizen enforcement;

24. that EPA require New Hampshire: first, to remove N.H. Code R. Env-A 902.03 

and 902.04 from its SIP, or revise them to stipulate that all excess emissions are 

violations and to preserve the authority of EPA and citizens to enforce the SIP 

standards and limitations; and, second, to remove the source specific exemptions 

for startup and shutdown in N.H. Code R. Env-A 1203.05 and 1207.02 from its 

SIP;

25. that EPA require New Jersey to remove from its SIP the two pollutant specific 

exemptions in N.J. Admin. Code §§ 7:27-7.2(k)(2) and 7:27-19.24;

26. that EPA require New Mexico: first, to revise the affirmative defenses in N.M. 

Admin. R. §§ 20.2.7.111 and 20.2.7.112 so that they are not available where a 

single source or a small group of sources has the potential to cause an exceedance 

of the NAAQS or PSD increments; and, second, to remove the emergency defense 

of N.M. Admin. R. § 20.2.7.113;

27. that EPA require North Carolina to remove 15A N.C. Admin. Code 2D.0535(c) 

and (g) from its SIP, or revise them so that all excess emissions are considered 

violations and no decision by the State can affect EPA and citizen enforcement;

i. that EPA require North Carolina and/or Forsyth County to remove 

Forsyth County Code ch. 3, 3D.0535(c) and (g) from the SIP, or revise 

them so that all excess emissions are considered violations and no decision 

by the State can affect EPA and citizen enforcement;
Sierra Club SSM Petition to EPA Page 79 of 80

28. that EPA require North Dakota to remove the pollutant and source category 

specific exemptions in N.D. Admin. Code §§ 33-15-03-04(4) and 33-15-05-

01(2)(a)(1) from its SIP;

29. that EPA require Ohio: first, to revise Ohio Admin. Code 3745-15-06(A)(3) so 

that it is clear that the authorization to shut down air pollution control equipment 

does not exempt the source from compliance with emission limits and standards;

second, to revise Ohio Admin. Code 3745-15-06(A)(3) to include the conditions 

on excess emissions during scheduled maintenance in the 1983 Memorandum at 

3; and, third, to remove the exemptions of Ohio Admin. Code 3745-14-11(D), 

3745-17-07(A)(3)(c), 3745-17-07(B)(11)(f), 3745-75-02(E), (J), 3745-75-03(I) 

and 3745-75-04(K), (L) from its SIP;

30. that EPA require Oklahoma: first, to revise Okla. Admin. Code § 252:100-9-3(a)

so that it is clear that the Director’s decision not to enforce in cases of excess 

emissions does not excuse the violation and has no effect on EPA or citizen 

enforcement actions; and, second, to revise Okla. Admin. Code § 252:100-9-

3(b)(1) so that scheduled maintenance is no longer an excuse for excess 

emissions;

31. that EPA require Oregon to clarify Or. Admin. R. 340-028-1450 so that it cannot 

be construed to limit EPA or citizen enforcement;

32. that EPA require Rhode Island to remove that portion of 25-4-13 R.I. Code R. 

16.2 that authorizes variances from its SIP;

33. that EPA require South Carolina: first, to remove S.C. Code Ann. Regs. 61-62.5 

St 1(C) and 61-62.5 St 5.2(I)(b)(14) from its SIP; and, second, revise S.C. Code 

Ann. Regs. 61-62.5 St 4(XI)(D)(4) to remove the language that excludes periods 

of startup, shutdown and malfunction;

34. that EPA require South Dakota to remove S.D. Admin. R. 74:36:12:02(3) from 

its SIP;

35. that EPA require Tennessee: first, to revise Tenn. Comp. R. & Regs. 1200-3-20-

.07 to make clear that it does not offer an enforcement exemption for excess 

emissions associated with SSM and does not limit the ability of citizens or EPA to 

bring or prevail in enforcement proceedings regarding SSM-related excess 

emissions; second, to remove the exemption for excess visible emissions due to 

startup and shutdown from Tenn. Comp. R & Regs. 1200-3-20-.07; and, third, to

remove Tenn. Comp. R & Regs. 1200-3-5-.02(1) from the SIP entirely;

i. to require Tennessee and/or Knox County to remove Knox County Air 

Pollution Control Regulation 32.1(C) from the SIP or revise it to state that 

a County decision not to pursue enforcement has no effect on enforcement 

by EPA or citizens;
Sierra Club SSM Petition to EPA Page 80 of 80

ii. that EPA require Tennessee and/or Memphis and Shelby County to 

propose the state regulations, as amended above, for incorporation by 

reference into its portion of the SIP;

36. that EPA require Virginia to remove 9 Va. Admin. Code § 5-20-180(G) from its 

SIP, or revise it so that all excess emissions are considered violations and no 

decision by the State can affect EPA and citizen enforcement;

37. that EPA require Washington to remove Wash. Admin. Code § 173-400-107 

from its SIP or revise the provision to stipulate that all excess emissions are 

violations and to preserve the authority of EPA and citizens to enforce the SIP 

standards and limitations;

38. that EPA require West Virginia to remove W. Va. Code R. §§ 45-2-9.1, 45-2-

10.1, 45-3-3.2, 45-3-7.1, 45-5-13.1, 45-6-8.2, 45-7-9.1, 45-7-10.3, 45-7-10.4, 45-

10-9.1, 45-21-9.3, and 45-40-100.8 from its SIP; and

39. that EPA require Wyoming to remove ENV-AQ-1 Wyo. Code R. § 2(d) from its 

SIP or revise it in accordance with EPA’s policy on source category specific rules 

for startup.

Respectfully submitted,

Maxine I. Lipeles, Co-Director

Aaron S. Oakley. Law Clerk

Interdisciplinary Environmental Clinic

Washington University School of Law

One Brookings Drive – Campus Box 1120

St. Louis, MO 63130-4899

314-935-7238 (phone); 314-935-5171 (fax)

milipele@wulaw.wustl.edu

Attorneys for Sierra Club