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SEP 201999

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MEMORANDUM IT". 0 " .'; (""") I

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SUBJECT: State Implementation Plans: Policy Regarding ER¢esGf' i

Emissions During Malfunctions, Startup, and Shrrrdo~ I I c......... ::= j.

FROM: Steven' A. Herma 11 i ~: . Cf.1 ,

j~istant Admi' ,~ for Enforcement and CO~li~C~

&Assurance .

Robert Perciasepe

Assistant Administrator for Air and Radiation

Regional Administrators, Regions I - X

EPA's policy for state implementation plans (SIPs) regarding

excess emissions during malfunctiorts, startup, shutdown, and

maintenance is contained in memorartda from Kathleen Bennett,

formerly Assistant Administrator f6r Air, Noise and Radiation I

dated September 28, 1982 and FebruJry 15, 1983. A recent revie~

of. SIPs' suggests that several contJin provisions that appear to '

be inconsistent with this policy, ~ither because they were

inadvertently approved after EPA i~sued the.1982-1983 guidance or

because they were part of the ~IP at that time and have never.

been remo~ed. In order to address Ithese provipions in a

consistent manner, today we are reaffirming and supplementing the

1982~83 policy. In so doing, we aJe taking this opportunity to

clarify several issues of interpretation that have arisen since I

that time. The attached updated p61icy will clarify the types of

excess emissions provisions states.lmay incorporate into SIPs so t

that they can in turn provide greater certainty to the regulated

conununi ty. . I ' . I

As EPA stated in its 1982 ,memorandum, because excess

emissions might aggravate air quality so as to prevent attainment

or interfere with maintenance of the ambient air quality .1

standards. EPA views all excess emissions as violations of the

applicabie emission limitation.N~vertheless, EPA recognizes

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that imposition of a penalty for sudden and unavoidable

malftinctions cauied by circumstances entirely beyond the control

of" the own'er' or operator may not' be 'a:pptopriate. Accordingly,' astate or EPA can exercise its "enforce~ent_discretiori" to refrain

from taking an enforcement action in these,circumstances.

The main question of interpretation that has arisen

regarding the old policy is whether a state may go beyond this

"enforcement discretion" approach and include in its SIP a

provision that would, in the context of an enforcement action for

exces's emissions,:: excuse a sourc'e from penal ties if the source

can demonstrate that it meets certain objective criteria (an

"affirmative defense"). This policy clarifies that itates have

'the discretion to provide 'such a defense to actions for,penalties

brought for excess emissions that arise during certain

malfunction, startup, and shutdown episodes, ,

In the coh1:;'ext of malfunctions,_ EPA recognizes that even

equipment that is properly designed and maintained can sometimes

fail. At the same time, EPA has a fundamental responsibility

under the Clean Air Act to ensure that SIPs provide for

attainment and maintenance of ' the national ambient air quality

·standards ("NAAQS")and protection of PSD increments. Thus, EPA

cannot approve an affirmative defense provision. that would

undermine the fundamental requirement of attainment and

maintenance of the NAAQS, or any other requirement of the Clean

Air Act, See sections 110(a) and (1) of the Clean Air Act, 42

U.S.C.S 7410(a) and (1).' Accordingly, an acceptable

affirmative, defense provision,may only appl~ to actions for

penalties, out not to actions for injunctive relief. This

restriction insures that both state and federal authorities

rema~n able to 'protect air -quality standards and PSD increments,

Furthermore,' this approach is appropriate only when the

respective, contributions of individual sources to pollutant

concentrations in ambient' air' are such that .no single source or

small 'group· of 'sources has the potential to cause an exceedance

of the NAAQS 'or PSD increments.' Where a single source or small

'Pursuant to, Section 110 (1), EPA may not approve a SI'P

revision if "the'icevision would interfere with any applicable'

requirement concerning attainment and reasonable further

progress, or any other applicable requirement of this chapter."

See also CAA',§ 193, 42 U.-S:C. § 7515, and the definitions of

"emis'si'on',l,imitation" and "emission standard" contained in CAA

§ 302(k), 42· d.s.c. § 7602(k!.

" In the case' of lead and sulfur dioxide, attainment

problems usually are caused by one or a few sources and an
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group of sources has the potential to cause an exceedance of the

NAAQS or PSD increments, EPA believes an affirmative defense I -apptba~h will not be adequat~ to p~otect public~health and the

environment, and the only appropri~te means of dealing with

excess. emissions during malfunctiob, s~artup, and shutdown

episodes is through an enforcement I discretion approach.)

EPA is also taking this opportunity to clarify that it does

not intend to approve SIP revision~ that would recognize a state

director's decision to bar EPA's o~ citizens' ability to enforce

applicable requirements. Such an ~pproach would be inconsistent

with the regulatory scheme establi~hed in Title I of the Clean i

Air Act. EPA is also adding conte~poraneous record keeping and:

notification criteria to make its ~olicy regarding these types of

events consisteht with its enforcement approach.

Finally, EPA is clarifying hol excess emissions that occur

during periods of startup and shut~own should be addressed. In!

general, because excess emissions that occur during these periods I '

are reasonably foreseeable, they should not be excused. However,

EPA recognizes that, for some soud:e categories, even the best !

available emissions control system~ might not be consistently I

effective during startup or shutdo*n periods. In areas where trye

respective contributions of individual sources to pollutant I

concentrations •• in ambient air are ~uch that no single source or I

small group of sources has the potential to cause an exceedance

of the NAAQS or PSD increments, th~se technological limitations

may be addressed in the underlying I standards themselves thLough

narrowly-tailored SIP revisions that take into account the

potential impacts on ambient air q0ality caused by the inclusion

of these allowances. In thes. ins~ances, as part of its I

justification of the SIP revision, the state should analyze the

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affirmative defense is not approprtate. This situation can be

particularly aggravated where a sh0rt-term standard (e.g., where

exceedances or violations are based on a few hour period) is also

in place. Although this policy islgenerally applicable for other

NAAQS, enforcement discretion is .the only appropriate approach. I

for dealing with excess emissions during startup, shutdown, and

malfunction in a specific area where a single source or a small

group of sources has the potential to cause nonattainment of a

short-term NAAQS.

) In'American Trucking Association v. EPA, 175 F. 3d 1027

(D.C. eirc., 1999), the court remartded the PM2.5 NAAQS to the

EPA. The Agency has not determined whether this policy is

appropriate for PM2.5 NAAQS.
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impact of' the po.tential worst-'case emissions that could, OCCUI'

during startup and shutdown.~

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In addition to this approach,states may address this problem

through the use of enforcement 'discretIon or they may include a

general affirmative defense provision in their SIPs for short and

infrequent startup and shutdown periods along the lines outlined

in theattachmept',:, As mentioned above, however, in those areas

where:'a ,single source or small group of sources has the potential

to cause' am e?(ceedance of the NAAQS or PSD increments, issues

relating to excess emissions arisi'ng -during startup and shutdown

may only,: be addresse'dthrough an enforcement discretion approij-ch',

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All Regions should review the,SIPs for their· states in light

of this clarification and take -steps to 'insure that excess

emissions provisions in these SIPs are consistent with the

attached guidance.,

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'States may account for such emissions by including them in

their routine rule effectiveness estimates. Rule effectiveness

estimates may be prepared in accordance with an EPA policy

document entitled "Guidelines for Estimating and Applying 'Rule

Effectiveness for Ozone/Carbon Monoxide State Implementation Plan

Base Year Inventories." (EPA-452/R-92-010). November 1992.
POLICY ON EXCESS

, Introduct·ion

Attachment

I

EMISSIONS DURING MALFUNCTIONS, I

SHUTDOWN .

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STARTUP, AND

This policy specifies when and·in what manner state

implementation plans (SIPs) may prbvide for defenses to

vioLations caused by periods of extess emissions due to

malfunctions,! startup, or shutdowri. Generally, since SIPs must

provide for attainment and mainten~nce of the national ambient !

air quality standards and the aChibvement of PSD increments, ali

periods of excesS emissions mu~t bb considered violations. ,

Accordingly, any provision that al~ows for an automatic

exemptionZ for· ex~ess emissions islprohibited.

However, the imposition of a penalty for. excess emissions

during malfunctions caused by circ~mstances entirely beyond the:

control of the owner or operator may not be appropriate. States I '

may, therefore r as an exercise of their inherent enforcement

discretion, choose not to penalizej a source that has produced

excess emissions under such circumstances.

This policy provides an alte~lative approach to enforcemen~ discretion for areas and pollutant~ where the respective I

contributions of individual source~ to pollutant concentrations I

in ambient air are such that no sihgle source or small group of:

sources has the potential to cause I an exceedance of the NAAQS of

PSD increments. Where a single source or small group of sources

has the potential to cause an exce~dance of the NAAQS or PSD . I

increments, as is often the case fbr sulfur dioxide and lead,J I

EPA believes approaches other thanlenforcement discret~on are n~t

appropriate. In such cases; any excess emissions may have a It

significant chance of causing an ekceedance or violation of the . I, I

applicable standard or PSD increment. '

'The term excess emission means an air emission level which

exceeds any applicable: emission li~itation. Malfunction means a

sudden ,and unavoidable breakdown of process or controlequipmen~.

2The term automatic exemption!means a generally applicable i

provision in a SIP that would provide that if certain conditions

existed during a period of excess ~missions, then those

exceedances would not be considered violations.

'This policy also does not apJ1Y for purposes of PM2.5

NAAQS. In American Trucking Association v; EPA, 175 F. 3d 1027

(D.C. eirc., 1999), the court remartded the PM2.5 NAAQS to the

EPA. The Agency has not determined whether this policy is ~propriate for PM2.5 NAAQS.
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Except where a single'source or small group of sources ,has

the potential to cause an exceedance of the NAAQS or PSD

.. increments,sta,tes may include in, their, SIPs affirmative ""','

defenses' for excess emissions, as long as the SIP establishes

limitations consistent with those set out below. If approved

into a SIP, an affirmative defense would be available to sources

in an enfoL'cement action seeki~g penalties brought by the state,

EPA, or citizens,However, a determination by the state not to

take an enforcement'actiQn would not'~ar EPA or~itizen action. 5

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In addition, in certain limited circumstances, "ft may be'

appropriate for the state to build into a source-specific"or '

source-category-specific emission standard a provision s~ating,

that the otherwise applicable emission limitations do not apply

during narro~ly defined startup and shutdown periods.

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I. ',AUTOMATIC EXEMPTIONS AND ENFORCEMENT DISCRETION

If a SIP con~ains a, provision addre~sing exce~s emissions;

it cannot be the type that providesfor'automatic exemptions.

Automatic exemptions might aggravate ambient air quality by

excus:j.!1gexcess, emiss,ions that cause or contribute to a ,violation

of an ambie!1t'air quality standard. Additional'grounds'for

disapproving, a SIP, thar., includes the automatic exemption approach

are discuscsed'in more detaJl at 42 Fed. Reg. 58171 (November 8,

1977) 'and,42·Fed. Reg.?1372 (April 27, 1977). As a,result, EPA

will not approve any ~IP Fevision~ that provide automatic

exemptions: for, periods of excess, emissions. . ,

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The best assurance that excess emission~ will,not interfere

with NAAQS attainment, maintenance, or increments is to address

excessemissi~ns through e~forcement discretion. This policy;,,"

provides alternative means for addressing excess emissions of '

criteria pollutants. However, 'this policy does not appi y where a

single source or small group of sources has the potential to

cause an exceedance of the NAAQS or PSD increments. Moreover,

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'The term affi~mative defense means, in the. context of an

enforcement proceeding, a response or defense put forward by a

defendant, regarding which the defendant has the bu~den of proof,

and the merits of which are· independently and objectively'

evaluated in a judicial or administrative proceeding. • - •• • • 1.

5Because all periods of excess emissions are violations and

because affirmative de~ense provisions may not apply in actions

for injunctive relief, under no circumstances would EPA consider

periods of excess emissions, even if covered by an affirmative

defense, to be ." fed~rally permi.tted, releases" under EPCRA or ' CERCLA,
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nothing in this guidance should be construed as requiring states

to include affirmative defense provisions in their SIPs. < " " - - - - • - -. I' "

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II. AFFIRMATIVE DEFENSES FOR MALFUNCTIONS

EPA can approve a SIP revisiol that creates an affirmative

defense to claims for penalties in!enforcement actions regarding

excess emissions caused by malfunctions as long as the defense I

does not apply to SIP provisions that derive from federally I

promulgated performance standards 6r emission limits, such as new

source performance standards (NSPS) and national emissions I

standards for hazardous air pollutants (NESHAPS).' In addition,

affirmative defenses are not appropriate for areas and pollutants

where a single source or small group of sources has the potenti~l

• to cause an exceedance of .the NAAQS or PSD increments. I

Furthermore, affirmative defenses to claims for injunctive reli~f

are not allowed. To be approved, ~n affirmative defense I

provision must provide that the defendant has the burden of proof

of demonstrating that:

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 activit1

or event that could have been foreseen and avoided, or planned i

for, and (b) could not have been avoided by better operation and

maintenance practices; " I

3. To the maximum extent pratticable the air pollution I

control equipment or processe5 wer~ 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 such1emissions; .

'To the extent a state -includes NSPS or NESHAPS in its SIP,

the standards should not deviate from those that were federally

promulgated. Because EPA set thes~ standards taking into account

technological limitations, additiortal exemptions would be

inappropriate. I
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6 .. A:ll' possible steps were taken to minimize the impact. of

the excess emissions on ambient air quality; ,:

7. All emission monitoring syste~s 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. ~heexcess emissions were not part of a ~ecurring

pattern ihdicativeof inadequate ·design,. operation, or

maintenance; and

10. The owner or operator properly and promptly notified

the.appropriate regulatory authority.

EPA interprets these criteria narrowly. Only those

malfunctions that are sudden, unayoidable, and unpredictable in

nature qualify for the defense. For example, a single instance

of a burst pipe that meets the above criteria may qualify under

an affirmative defense. The defense would not be available,

however, if the facility had a history of similar failures

because of improper design, improper maintenance, or poor

operating practices. Furthermore,.a source must have taken all

available measur.esto compensate for and. resolve the malfunction.

If a ~acility has a baghousefire that leads to excess emissions,

the affirmative defense would be appropriate only for the period

of time necessary to modify or curtail operations to come into

compliance. The ·fire should-not be used to excuse excess

emissions generated during an extended period of time while the

operator orders and installs new bags, and relevant SIP language

must limit applicability of the affirmative defense accordingly.

III. EXCESS .EMISSIONS DURING STA~TU? AND SHUTDOWN

In general, startup -and shutdown of process equipment .are

part of the normal operation of a source and should be accounted

for in the planning, design,_ and implementation of operating

procedures for the process and control equipment. Accordingly,

it is reasonable to expect,that careful and prudent planning ,and

design will elimina~e violations of emission limitations durin~

such periods.

A. SOURCE CATEGORY SPECI FIC RULES -FOR STARTUP AND SHUTDOWN

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For some source categories, given the types of control

technologies available, there may exist short periods of . \

emissions during startup and shutdown when, despite best efforts

~egarding planning, design, and operating procedures, the .
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o therW1se ' app11ca 'ble em1SS10n .. 1"1m1taIt'10n cannot b' e met.

Accordingly, except, in the case wh~re'a single source or ,small

group of sources has the potential Ito" cause 'an exceedan'ce' 'ofthe

NAAQS or PSD increments, it may be:appzopriate, in consultation

with EPA, to create narrowly-tailored SIP revisions that take

these technological limitations into account and state that the

otherwise applicable emissions limitations do not apply during

narrowly defined startup and shutd6wn periods. To be approved,

these revisions should meet the following requirements: , .

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1. The'revision muit be limited to specific, .narrowlydefined source categories using specific control strategies

(e.g., cogeneration facilities burning natural gas and using

,selective catalytic reduction);

operation in startup or

maximum extent

2. Use of, the control strat~~y for this source category

must be technically infeasible during startup or shutdown

periods; I

3. The frequency and duratio~ of

shutdown mode must be minimized to1the

practicable; I

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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;

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7. The owner or operator's actions durin~ startup and

shutdown periods must be documented by properly signed,

contemporaneous operating logs, orl other relevant evidence.

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 operat~d in a mannek

consistent with good practice for minimizing emissions, and,the

source must have used best efforts' regarding planning, design,

and operating procedures to meet tpe otherwise applicable

emission limitation; and

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, B. GENERAL AFFIRMATIVE DEFENSE PROVISIONS RELATING TO

STARTUP AND SHUTDOWN :

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In' addition to the approach Jutlined in Section IlIA) above,

states may address the problem of ~xcess emissions occurring

during startup and shutdown periodb through an enforcement

discretion approach. Further, except in the case where a single

source or small group of sources h~as the potential to cause an I

exceedance of the, NAAQS or PSD increments, ,states may also adoPjt

for their SIPs an affirmative def~nse approach. Using this , I ".
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approach, all ~efiods of ek~eis emissions. arising during startup

and shutdown must be treated as violations,- and the' affirmative

"""""''''-'''Oefensei'prbvision'mu'st 'nOt' be available for claims 'for injunci:::Lve'

relief. Furthermore, to be approved, such a provision must

provide that'~he·defetidant has-~heburden of proof of.

demonstrating that: . , . ,

... . 1., The periods·of excess emissions ·that occurred during.

startup an~;shdtdo~n·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

patterti indicative 'of in'adequate .de·sign, 'operation, or

maintenance;

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

intentional divetsion ·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;· " j

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 signe,d,

contemporaneous operating logs, or other relevant evidence; and

9. The owner, or operator properly and promptl'y notifie9 the

appropriate regulatory authority.

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If excess emissions occur during routine startup or shutdown

periods due to a malfunction, then those instances should be

treated as other malfunctions that ~re subject to the ma~function

provisions of this policy. (Reference Part I above) ..

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benneI1899•.wpdlAuguSI 1.1, 1999

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