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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 1#Sf C N 

WASHINGTON, D.C. 20460 ( V ~g;..;

D~ ~i.1 DEC 5 2001 ?~ 1'11'\ 

""1 J I { I 

OFFICE OF if' .' ! 

AIR AND RADIATION 

MEMORANDUM 

SUBJECT:	 Re-Issuance of Clarification - State Implementation Plans (SIPs): Policy
 

Regarding E~missi" Durin alfunctions, Startup, and Shutdown
 

FROM: Eric Schaeff~ /Jd"'""7'I1/'­

Director, Office ofRegulatory
 

Office ofEnforcement and Co
 

John S. Seitz ~. jJ/ ;z-	 RECEIVED 

Director, Office of. uality PI~tandards GE~ , It 20m 

Office ofAir and .ation 

USEFA ll..A"S OFFICE TO:	 Regional Administrators, Regions I - X 

This is are-issuance of "Clarification - State Implementation Plans (SIPs): Policy 

Regarding Excess Emissions During Malfunctions, Startup, and Shutdown," which was signed 

on November 8,2001.' This re-issued fonn ofthe Policy excludes a paragraph that was 

erroneously included in the November 8,2001, version. 

On September 20, 1999, EPA issued a guidance memorandum discussing the types of 

State Implementation Plan (SIP) provisions addressing excess emissions during malfunctions, 

startups, and shutdowns that EPA believes may appropriately be approved as part of a SIP - State 

Implementation Plans; Policy Regarding Excess Emissions During Malfunctions, Startup, and 

Shutdown ("September 20, 1999, Guidance"). Certain questions have recently been raised 

concerning the intended effect ofthe September 20, 1999, Guidance. The purpose ofthis 

Memorandum is to provide clarification with regard to these questions. 

This Memorandum confirms that the September 20, 1999, Guidance provides guidance to 

States and EPA regarding SIP provisions related to excess emissions during malfunctions, 

startups, and shutdowns. It was not intended to alter the status of any existing malfunction, 

startup or shutdown provision in a SIP that has been approved by EPA. Similarly, the Guidance 

was not intended to affect existing permit terms or conditions regarding malfunctions, startups 

and shutdowns that reflect approved SIP provisions, including opacity provisions, or to alter the 

emergency defense provisions at 40 C.F.R. § 70.6(g). Existing SIP rules and 40 C.F.R. § 70.6(g) 

may only be changed through established rulemaking procedures and existing permit terms may 

oilly be changed through established permitting processes. Thus, EPA did not intend the 

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September 20, 1999, Guidance to be legally dispositive with respect to any particular proceedings 

in which a violation is alleged to have occurred. Rather, it is in the context of future rulemaking 

actions, such as the SIP approval process, that EPA will consider the Guidance and the statutory 

principles on which the Guidance is based. 

Questions also have been raised regarding the effect of the September 20, 1999, Guidance 

as it relates to enforcement discretion and affirmative defenses. The Guidance confirms that 

EPA and States may always exe.rcise enforcement discretion with respect to excess emissions 

that occur during malfunctions, startups or shutdowns. The Guidance further confirms that 

States may provide in SIPs appropriately tailored affirmative defenses, consistent with the 

September 20, 1999, Guidance that would be available in enforcement actions brought by States, 

EPA, or citizens. 

cc:	 Air Directors Regions I - X 

Regional Counsels Regions I - X