1 State Plans to Address Emissions During

Startup, Shutdown, and Malfunction: Proposed Response to Petition for Rule making , Findings of Inadequacy, and Call for Plan Revisions

Fact Sheet

Action

 On February 12, 2013, the U.S. Environmen tal Protection Agency (EPA) proposed a rule that would ensure states have plan s in place that require industrial facilities across the country to follow air pollution rules during times when the facility is starting up or shutting down, or when a malfunction occurs. Air pollution emitted during these periods may adversely impact th e health of people nearby and contribute to smog and other problems in commun ities that are further downwind.

 This action responds to a petition for ru lemaking filed by the Sierra Club. The Petition includes interrelated requests con cerning the treatment of excess emissions when industrial facilities are starting up, shutting down, and when the plant is malfunctioning--specifically how those emissi ons are treated in state implementation plan (SIP) provisions that the EPA approved in the past. Many of these state plans are outdated and are not consistent with m odern rules or recent court decisions.

 EPA’s proposed actions would addre ss outdated provision, improve national consistency and provide clarity for the tr eatment of emissions that occur during startup, shutdown, and malfunction (SSM). EPA is proposing to:

1. deny the request in the petition that EPA prohibit affirmative defenses in SIPs. Rather, EPA is revising its previous policy to conti nue to allow affirmative defenses in SIPs (for states that choose to provide them) for excess emissions that occur when a facility is experiencing a malfunction (an unplanned event) but not for excess emissions that occur when a fac ility is operating in a planned startup or shutdown mode. An affirmative defense is allowable when well-managed facilities experience malfunctions due to circumstances beyond their control and would shield a facility from monetary pena lties but not from th e responsibility to take action to limit future problems.

2. grant the Petitioner’s claim for 36 of the 39 states identified in the Petition, by proposing to determine that these 36 states have approved SIPs that include one or more SSM provision that is inconsistent with the Clean Air Act. EPA is proposing a “SIP Call” for each of thos e 36 states. Under the SIP Calls EPA would direct the affected states to correct specific SIP provision s related to SSM. A list at the end of this fact sheet sh ows EPA’s proposed response for each of the 39 states identified in the Petition.

3. deny the request in the Petition that EPA discontinue reliance on interpretive letters from states to clarify any potentia l ambiguity in the state's SIP submission. EPA is proposing findings that the SSM provi sions in the SIPs of 36 states do not meet the requirements of the Clean Air Act. EPA must make an “inadequacy” finding before calling upon a state to revise and resubmit its plan.

 EPA is proposing to give the 36 affected stat es 18 months to correct and submit their state plans to the Agency. The 18-month cl ock would start when EPA makes its final findings of inadequacy. Eighteen months is the longest period of time allowed under the Clean Air Act for SIP revision and submittal. For example, if the EPA promulgates a finding of inadequacy a nd a SIP Call on August 27, 2013, then the SIP submission deadline for each of the states subject to the final SIP Calls would fall 18 months later, on February 27, 2015.

 EPA will accept comment on this proposal for 30 days after publication in the Federal Register . If a public hearing is requested, EPA will hold one in Washington, DC on March 12, 2013, and will extend the comment period to 30 days beyond the hearing date.

Background

 The Clean Air Act (section 110(k)(5)) provi des a mechanism comm only called a "SIP Call" for correcting state implementation pl ans that the Administrator finds to be substantially inadequate to meet Clean Air Act requirements.

 Exemptions from emission limits duri ng periods of startup, shutdown, and malfunction ("SSM") exist in a number of st ate rules, some of which were adopted and approved into SIPs by EPA many years ago.

 Recent court decisions have held that under the Clean Air Act, such exemptions are not allowed in SIPs. Other court decisi ons have remanded similar exemptions in National Emissions Standards for Hazardous Air Pollutants (NESHAP), which EPA is also correcting in separate actions.

 EPA's 1999 SSM policy memorandum (available in the docket for this rulemaking) allows states the option to provide in their SIPs fo r an "affirmative defense" to enforcement actions brought for excess emissi ons that arise during certain conditions. In judicial proceedings, an affirmative defens e serves to shield sources from monetary penalties for excess emissions, if specified conditions in the SIP were met. Whether or not a source is allowed an affirmative defense by the state, the source remains subject to the possibility of requirements to take speci fic actions to avoid excess emissions in the future.3 How to Comment

 The EPA will accept comment on the proposal for 30 days after publication in the Federal Register . Comments, identified by Docket ID No. EPA-HQ- OAR-2012- 0322, may be submitted by one of the following methods:

 http:// www.regulations.gov : Follow the online instructions for submitting
comments.  Email: Comments may be sent by electronic mail (e-mail) to a-and-rdocket@epa.gov

.  Fax: Fax your comments to: (202) 566-9744.  Mail: Send your comments to: Atten tion Docket ID No. EPA-HQ-OAR-2012- 0322, Air and Radiation Docket and In formation Center, Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania Ave., NW, Washington, DC 20460.  Hand Delivery or Courier: Deliver your comments to: EPA Docket Center, 1301 Constitution Ave., NW, Room 3334, Washi ngton, DC. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information.

For More Information

 To download a copy of this notice, go to EPA's World Wide Web site at: http://www.epa.gov/airquali ty/urbanair/sipstatus/

 Today's proposed action and other background information are also available electronically at http://www.regulations.gov , EPA’s electronic public docket and comment system. The docket number for this action is Docket ID No. EPA-HQOAR-2012-0322.

 For more information on the proposed rule, contact Lisa Sutton at (919) 541-3450 or sutton.lisa@epa.gov

.List of States with SSM SIP Provisions fo r which EPA Proposes Either to Grant or to Deny the Petition, in Whole or in Part

EPA Region State Proposed action on petition I Maine Grant New Hampshire Partially grant, partially deny Rhode Island Grant II New Jersey Partially grant, partially deny III Delaware Grant District of Columbia Partially grant, partially deny Virginia Grant West Virginia Grant IV Alabama Grant Florida Grant Georgia Grant Kentucky Grant Mississippi Grant North Carolina Grant South Carolina Partially grant, partially deny Tennessee Grant V Illinois Grant Indiana Grant Michigan Grant Minnesota Grant Ohio Partially grant, partially deny VI Arkansas Grant Louisiana Grant New Mexico Grant Oklahoma Grant VII Iowa Partially grant, partially deny Kansas Grant Missouri Partially grant, partially deny Nebraska Deny VIII Colorado Partially grant, partially deny Montana Grant North Dakota Grant South Dakota Grant Wyoming Grant IX Arizona Partially grant, partially deny X Alaska Grant Idaho Deny Oregon Deny Washington Grant