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02 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

JUL 2 2 2009 

Charles H. Knauss 

Shannon S. Broome 

Sandra P. Franco 

Bingham McCutchen LLP 

2020 K Street, NW 

Washington D.C. 20006 

Leslie A. Hulse 

Assistant General Counsel 

American Chemistry Council 

1300 Wilson Boulevard 

Arlington, VA 22209 

Gregory Scott 

National Petrochemical & Refiners Association 

1667 K Street, NW, Suite 700 

Washington, D.C. 20006 

Jan Poling 

American Forest & Paper Association 

1111 19`" Street, NW, Suite 800 

Washington, D.C. 20036 

OFFICE OF 

ENFORCEMENT AND 

COMPLIANCE ASSURANCE 

Harry M. Ng 

John P. Wagner 

American Petroleum Institute 

1220 L Street, NW 

Washington, D.C. 20005 

Thomas J. Graves 

Alison A. Keane 

National Paint & Coatings Association, Inc. 

1500 Rhode Island Avenue, NW 

Washington, D.C. 20005 

William H. Lewis, Jr. 

Morgan, Lewis & Bockius, LLP 

1 l 11 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

Susan T. Conti 

Alliance of Automobile Manufacturers 

1401 Eye Street, NW, 9`' Floor 

Washington, D.C. 20005 

Re: Vacatur of Startup, Shutdown, and Malfunction (SSM) Exemption (40 C.F.R. §§ 

63.6(f)(1) and 63.6(h)(1)) 

Dear Counsel: 

In Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the United States Court of 

Appeals for the District of Columbia Circuit vacated two provisions in EPA's Section 112 

regulations governing the emissions of hazardous air pollutants during periods of startup, 

shutdown, and malfunction ("SSM"). Specifically, the Court vacated 40 C.F.R. §§ 63.6(f)(1) 

and 63.6(hx 1), that are part of a regulation, commonly referred to as the "General Provisions 

Rule," that EPA promulgated under Section 112 of the Clean Air Act. When incorporated into 

Clean Air Act Section 112(d) regulations for specific source categories, these two provisions 

exempt sources from the requirement to comply with the otherwise applicable Section 112(d) 

Internet Address (URL) • http://www.epa.gov 

Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100%, Postconsumer, Process Chlorine Free Recycled Paper 
emission standard during periods of SSM. Representatives of various industries subject to 

Section 112(d) rules have raised concerns to EPA about the impact of the Sierra Club decision 

and the potential enforcement exposure a source faces if it fails to comply with a Section 112(d) 

emission standard during an SSM event. The purpose of this letter is to address those concerns. 

Until the Court issues the mandate in Sierra Club v. EPA, 40 C.F.R. §§ 63.6(f)(1) and 

(h)(1) remain in effect Once the mandate issues, 40 C.F.R. §§ 63.6(f)(1) and (h)(l) will become 

null and void. The vacatur will immediately and directly affect only the subset of Section 112(d) 

rules that incorporate 40 C.F.R. §§ 63.6(f)(1) and (h)(1) by reference, and that contain no other 

regulatory text exempting or excusing compliance during SSM events. Table 1, attached, 

contains a list of the source category rules that EPA believes will be immediately affected once 

the mandate issues in Sierra Club, as these rules do nothing more than incorporate 40 C.F.R. §§ 

63.6(f)(1) and (hx 1) by reference and contain no other regulatory text exempting or excusing 

compliance during SSM events. EPA's initial analysis of the Section 112(d) source category 

rules indicates that the majority of the rules include specific regulatory text that exempts or 

excuses compliance during SSM events, and such regulatory text is in addition to, or in lieu of, a 

cross-reference to 40 C.F.R. §§ 63.6(f)(1) and (h)(1).' See Table 2(attached) (identifies the 

source category rules that EPA believes will not be impacted when the mandate issues in Sierra 

Club). The vacatur does not have a direct impact on such source category-specific SSM 

provisions because those provisions were not challenged and were not before the court in Sierra 

' There is a great deal of variation in the specific regulatory text used in such rules to exempt or 

otherwise excuse a source from compliance with the applicable Section 112(d) standard during 

periods of SSM. The following examples are illustrative of the different formulations that EPA 

has identified in its Section 112(d) source category rules, but are by no means exclusive. See, 

e.g., 40 C.F.R. § 63.762(a) ("The provisions set forth in this subpart shall apply at all times 

except during startups or shutdowns, during malfunctions. ...."); 40 C.F.R. § 63.654(g)(6) 

("periods of excess emissions shail be identified in the Periodic Reports and shall be used to 

determine compliance with the emission standards. ...(iii) Periods of startup and shutdown 

that meet the definition of § 63.641, and malfunction that meet the definition in § 63.2 and 

periods of performance testing and monitoring system calibration shall not be considered periods 

of excess emissions. ..."); 40 C.F.R. § 63.1570 (a), (b) and (g) (contains a cross-reference to 

63.6(f)(1) and (h)(1) in 63.1570(a) and (b), respectively, but also has regulatory text in 

63.1570(g) excusing deviations that occur during SSM. Section 63.1570(g) provides " 

Consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, 

shutdown, or malfunction are not violations if you demonstrate to the Administrator's 

satisfaction that you were operating in accordance with § 63.6(e)(1)."); 40 C.F.R. § 

63.695(e)(6)(i) ("An excursion is not a violation nor does it count toward the number of excused 

excursions allowed under paragraph (e)(6)(ii) of this section when the excursion occurs during 

any one of the following periods: (A) During a period of startup, shutdown, or malfunction 

when the affected facility is operated during such period in accordance with § 63.6(e)(1)"). 

-2- 
Sierra Club. EPA recognizes, however, that the legality of such source category-specific SSM 

provisions may now be called into question, and EPA intends to evaluate each of them in light of 

the court's decision. The tables attached to this letter are based on EPA's initial analysis and 

are, therefore, subject to change. 2 

Even if a source is subject to a Section 112(d) standard that does no more than 

incorporate by reference 40 C.F.R. §§ 63.6(f)(1) and (h)(1) and contains no other regulatory text 

exempting or excusing compliance during SSM events (see Table 1), the impact of the vacatur 

will vary depending on the source category, and may not be immediate for sources in many 

categories. EPA's initial evaluation of the subset of Section 112(d) rules that do nothing more 

than cross-reference 40 C.F.R. §§ 63.6(f)(1) and (h)(1) indicates that most of these rules should 

not present compliance issues for sources during SSM events. There are various reasons for this. 

For example, certain Section 112(d) standards can be achieved despite SSM events because the 

performance of pollution control equipment is not affected by SSM events. Other Section 

112(d) standards are expressed as an average over a relatively long period of time (e.g., a yearly 

rolling average) and expected startup and shutdown events and any malfunctions over that 

period are not likely to result in an exceedance ofthe standard. Further, certain Section l 12(d) 

standards impose only work practice requirements with which a source should be able to comply 

during SSM events. 

Compliance with Section 112(d) standards during SSM periods should also be less 

problematic for those sources that are operating in compliance with 40 C.F.R. § 63.6(e)(1)(I), 

which requires sources to minimize emissions at all times, including periods of SSM, consistent 

with safety and good air pollution control practices. Sources subject to Section 112(d) standards 

that only cross-reference the exemption in 40 C.F.R. §§ 63.6(f)(1) and (h)(1) of the General 

Provisions Rule should, in many instances, be able to minimize their exposure to violations of 

the applicable Section 112(d) standards by adjusting their operating practices or by adding 

emission controls or measures to reduce or eliminate excess emissions during SSM periods. 

EPA recognizes, however, that some sources subject to Section 112(d) standards that 

only cross-reference the exemption in 40 C.F.R. §§ 63.6(f)(1) and (h)(1) of the General 

Provisions Rule may be unable to comply with such standards during SSM events despite their 

best efforts, including adherence to 40 C.F.R. § 616(e)(1)(1). For a source that fails to comply 

with the applicable Section 112(d) standards during SSM events, EPA will determine an 

appropriate response based on, among other things, the good faith efforts of the source to 

minimize emissions during SSM periods, including preventative and corrective actions, as well 

as root cause analyses to ascertain and rectify excess emissions, and whether the source has 

developed and implemented an SSM plan to minimize such emissions. See 40 C.F.R. § 

63.6(e)(3)(i). We intend to closely scrutinize any claim that a Section 112(d) standard cannot be 

2There are some Section 112(d) source category rules that do not appear in either table because 

the rules do not contain any SSM exemption. The Sierra Club decision has no impact on such 

rules. 

-3- 
met during a malfunction to determine whether the event was in fact "sudden, infrequent, not 

reasonably preventable" and was not instead "caused in part by poor maintenance or careless 

operation." 40 C.F.R. § 63.2 (definition of malfunction). 

We encourage sources that anticipate compliance difficulties to contact EPA or the 

appropriate state regulatory authority. By engaging with regulators early, sources can identify 

their compliance concerns and engage in a meaningful dialogue with EPA or the appropriate 

state regulatory authority about the individual circumstances presented by a particular facility, 

including any information on the nature and extent of the excess emissions that occurred or are 

expected to occur during SSM events. In appropriate cases, EPA or the state may be able to take 

action to resolve a source's compliance concerns. Such actions may include, for example, 

issuance of an Administrative Order on Consent that includes a schedule for the source to 

achieve compliance during SSM events. 

EPA is cunently evaluating, in light of the Sierra Club decision, which Section 112(d) 

source category standards should be revised, and of these, which should be revised on an 

expedited basis. As we engage in the process of evaluating and revising rules, we will evaluate 

any information that we have, and that we may receive from industry or other sources, on 

emissions during periods of SSM. See, e.g., Clean Air Act Section 112(d)(3)(A) (existing source 

standards are based on the average emission limitation achieved by the best performing 12 

percent of sources "for which the Administrator has emissions information"). EPA will 

endeavor to promptly address concerns raised with respect to specific Section 112(d) source 

category standards where the Agency determines that sources within a source category may have 

a limited ability to comply with those standards during periods of SSM. EPA intends to give 

highest priority to reviewing and revising those Section 112(d) source category standards that 

may be difficult for sources to meet during an SSM period given the technological limitations of 

the processes involved. 

Sincerely, 

Adam M. Kushner, Director 

Office of Civil Enforcement 

cc: William Becker, NACAA 

Steve Page, OAR 

Regional Air Division Directors 

Regional Air Enforcement Managers 

-4- 
Table 1— Section 112(d) Source Category Rules That Will Be Affected Once The 

Mandate Issues in Sierra Club v EPA, 551 F.3d 1019 (D.C. Cir. 2008), Vacating the 

Startup, Shutdown, and Malfunction Exemptions in 40 C.F.R. § 63.6(f)(1) and (h)(1) 4 

Relevant Source Category 

Part 63 Subpart 

R Gasoline Distribution 

S Pulp and Paper 

T Halogenated Solvent Cleaners 

X Secondary Lead Smelting 

Y Marine Loading Operations 

GG Aerospace Manufacturing 

II Shipbuilding and Ship repair 

KK Printing and Publishing 

LL Primary Aluminum 

MM Combustion Sources at Pulp Mills 

CCC Steel Pickling 

lII Flexible Polyurethane Foam Production 

LLL Portland Cement 

NNN Wool Fiberglass 

RRR Secondary Aluminum 

TTT Primary Lead 

vW Publicly Owned Treatment Works 

X3QC Ferroalloy Production 

' This Table presents the Clean Air Act Section 112(d) source category rules that EPA 

currently believes will be directly affected once the mandate issues in Sierra Club v. EPA, 551 

F.3d 1019 (D.C. Cir. 2008). The rules identified in this Table incorporate 40 C.F.R. Sections 

63.6(f)(1) and (h)(1) by reference and contain no other regulatory text exempting or excusing 

compliance during startup, shutdown or malfunction events. The information in this Table is 

based on EPA's initial analysis and is, therefore, subject to change. 

-5- 
Table 1(Continued) — Section 112(d) Source Category Rules That Will Be Affected 

Once The Mandate Issues in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), Vacating 

the Startup, Shutdown, and Malfunction Exemptions in 40 C.F.R. § 63.6(f)(1) and (h)(1) 

Relevant Source Category 

Part 63 Subpart 

AAAA Municipal Solid Waste Landfills 

JJJJ Paper and Other Web Coating 

RRRR Metal Furniture 

VWV Boat Manufacturing 

YYYYY Electric Arc Fumaces — area sources 

ZZZZZ Iron and Steel Foundries — area sources 

EEEEEE Primary Copper — area sources 

FFFFFF Secondary Copper — area sources 

GGGGGC' Primary Nonferrous metals — area sources 

HI-IFHII-TH Paint Stripping and Miscellaneous Coating — area sources 

LLLLLL Acrylic/Modacrylic fibers — area sources 

NNNNNN Chromium Compounds — area sources 

000000 Flexible Polyurethane Foam Production and Fab — area sources 

PPPPPP Lead Acid Batteries — area sources 

RRRRRR Clay ceramics — area sources 

TTTTTT Secondary Nonferrous metals — area sources 

YYYYYY Ferroalloys Production — area sources 

on 
Table 2— Section 112(d) Source Category Rules That Will Not Be Affected When 

the Mandate Issues in Sierra Club v EPA, 551 F.3d 1019 (D.C. Cir. 2008)5 

Relevant Source Category 

Part 63 Subpart 

F, G, H, I Hazardous Organic NESHAP for Synthetic Organic Chemical Manufacturing 

L Coke Oven Batteries 

N Chromium Electroplating 

O Ethylene Oxide Sterilizers 

S Pulp and Paper (some emissions standards only) 

U Polymers and Resins I 

W Polymers and Resins II 

AA Phosphoric Acid Manufacturing 

BB Phosphate Fertilizer Production 

CC Petroleum Refineries 

DD Off-site Waste and Recovery 

HH Oil and Natural Gas Production 

00-YY Generic MACT (8 categories) 

DDD Mineral Wool 

EEE Hazardous Waste Combustors 

GGG Pharmaceutical Manufacturing 

5This Table presents the Clean Air Act Section 112(d) source category rules that will 

not be immediately affected by the vacatur in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 

2008). These rules contain specific regulatory text that exempts or excuses compliance during 

SSM events, and such regulatory text is in addition to, or in lieu of, a cross-reference to 40 

C.F.R. Sections 63.6(f)(1) and (h)(1). Although these provisions will remain in effect following 

the issuance of the mandate in Sierra Club, EPA recognizes that the legality of such source 

category-specific SSM provisions may now be called into question, and EPA intends to evaluate 

them in light of the court's decision. 

-7- 
Tabie 2(Continued) — Section 112(d) Source Category Rules That Will Not Be 

Affected When the Mandate Issues in Sderra Club v EPA, 551 F.3d 1019 (D.C. Cir. 2008) 

Relevant Source Category 

Part 63 Subpart 

HIII-I Natural Gas Transmission and Storage 

JJJ Polymers and Resins IV 

MMM Pesticide Manufacturing 

000 Polymers and Resins III 

PPP Polyether Polyols 

QQQ Primary Copper Smelting 

UW Petroleum Refineries 11 

CCCC Nutritional Yeast 

DDDD Plywood and Composite Wood Products 

EEEE Organic Liquids Distribution 

FFFF Miscellaneous Organic NESHAP 

C',GGG Vegetable Oil Extraction 

HIIHH Wet-formed Fiberglass Mat 

IIIl Auto and Light Duty Truck Coating 

KKKK Metal Can Coating 

NA1MM Miscellaneous Metal Parts Coating 

NNNN Large Appliances Coating 

0000 Fabric Printing, Coating, and Dyeing 

PPPP Plastic Parts Coating 

QQQQ Wood Building Products 

RRRR Metal Furniture Coating 

SSSS Metal Coil Coating 

UUUU Cellulose Production 

10 
Table 2(Continued) — Section 112(d) Source Category Rules That Will Not Be 

Affected When the Mandate Issues in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) 

Relevant Source Category 

Part 63 Subpart 

W W W W Reinforced Plastics Composites Manufacturing 

XXXX Rubber Tire Manufacturing 

YYYY Gas Turbines 

ZZZZ Reciprocating Internal Combustion Engines 

AAAAA Lime Manufacturing 

BBBBB Semiconductor Manufacturing 

CCCCC Coke Ovens 

DDDDD Industrial Boilers 

EEEEE Iron and Steel Foundries 

FFFFF Integrated Iron and Steel Production 

GGGGG Site Remediation 

HHHHH Miscellaneous Coating 

IIIII Mercurv Cell Chlor-alkali Plants 

JJJJJ Brick and Clay Manufacturing 

KKKKK Clay Ceramics 

LLLLLL Asphalt Roofing and Processing 

MMMMM Flexible Polyurethane Foam Fabrication 

NNNNN HCl Production 

PPPPP Engine 1'est Cells/Stands 

QQQQQ Friction Materials Manufacturing 

RRRRR Taconite Ore Production 

SSSSS Refractory I'roducts 

ul 
Table 2(Continued) — Section 112(d) Source Category Rules That Will Not Be 

Affected When the Mandate Issues in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) 

Relevant Source Category 

Part 63 Subpart 

TTTTT Primary Magnesium Production 

BBBBBB Gasoline Distribution — area sources 

MMMMMM Carbon Black Production — area sources 

SSSSSS Glass Manufacturing — area sources 

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