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State Plans to Address Emissions During 

Startup, Shutdown, and Malfunction: 

Proposed Response to Petition for Rulemaking , Findings of Inadequacy, and Call 

for Plan Revisions 

Fact Sheet 

Action 

 On February 12, 2013, the U.S. Environmental Protection Agency (EPA) proposed a 

rule that would ensure states have plans 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 the health of people nearby and contribute 

to smog and other problems in communities that are further downwind. 

 This action responds to a petition for rulemaking filed by the Sierra Club. The 

Petition includes interrelated requests concerning the treatment of excess emissions 

when industrial facilities are starting up, shutting down, and when the plant is 

malfunctioning--specifically how those emissions 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are outdated and are not consistent with modern rules or recent court decisions. 

 EPA’s proposed actions would address outdated provision, improve national 

consistency and provide clarity for the treatment 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 continue 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 facility 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 penalties but not from the 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 those 36 states. Under the SIP Calls EPA 

would direct the affected states to correct specific SIP provisions related to SSM. 

A list at the end of this fact sheet shows 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 potential ambiguity in the state's SIP submission. 
 EPA is proposing findings that the SSM provisions 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 states 18 months to correct and submit their 

state plans to the Agency. The 18-month clock 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 and 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)) provides a mechanism commonly called a "SIP 

Call" for correcting state implementation plans that the Administrator finds to be 

substantially inadequate to meet Clean Air Act requirements. 

 Exemptions from emission limits during periods of startup, shutdown, and 

malfunction ("SSM") exist in a number of state 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 decisions 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 for an "affirmative defense" to 

enforcement actions brought for excess emissions that arise during certain conditions. 

In judicial proceedings, an affirmative defense 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 specific actions to avoid excess 

emissions in the future. 
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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: Attention Docket ID No. EPA-HQ-OAR-2012-

0322, Air and Radiation Docket and Information 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, Washington, 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/airquality/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 for 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