### Summary	of	Interagency	Working	Com ments	on	Draft	Language	under EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Re view.

1 Environmental Protection Agency (EPA): Final Rule State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and

SIP Calls to Amend Provisions Applying to Ex cess Emissions During Periods of Startup, Shutdown and Malfunction
RIN 2060-AR68
General Comments

1. Reviewer recommends developi ng a table of abbreviations and acronyms and a table of references (e.g., court cases, federal register notices). EPA Response : Edits shown on or near page 536.
2. Reviewer recommends moving a significant po rtion of the comments and responses to EPA’s comment response document (CRD) and re organizing the preamble. As provided, many of the comments are nearly identical th at leads to confusion, unnecessary length, and to significant cross-referencing between sections. By moving comments to the CRD, it will enhance stakeholder understanding of the major issues, how EPA responded to them, and how the final rule will affect them. EPA Response : No change made.
3. Reviewer recommends clarifying why EPA ha s expanded the scope beyond the initial Petition to other states not identified with in the Petition and into other issues not identified within the Petition and decided to not expand the scope in other areas. An example of the discussion can be found on page 150. EPA Response : Edits shown on or near pages 149–152.
4. Reviewer recommends clarifying a State’s re quirements for adoption of EPA’s NSPS or NESHAP regulations that have not yet been revised to re move affirmative defenses by EPA and the potential benefits and costs of implementing different strategies. Specifically, is a State required to modify thei r SIP if the State incorporates by reference without modification or cond ition an EPA NSPS or NESHAP regulation that allows for affirmative defenses EPA Response : Edits shown on or near pages 19 4–197, also on or near pages 285–286.
5. Reviewer recommends providing the benefits and costs from EPA’s interpretation of NRDC v. EPA (749 F.3d 1055 (2014)) with respect to affirmative defenses relative to other potential interpretations of the case, including the costs of SIP calls to amend provisions applying to affirmative defenses. EPA Response : No change made.

### Summary	of	Interagency	Working	Com ments	on	Draft	Language	under EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Re view.

2 6. Reviewer recommends further elaboration and clarification on how this action does not fall under the Paperwork Reduction Act as a SIP ca ll requires more than nine (9) states to submit information to the EPA for EPA’s review. The Paperwork Reduction Act states that “The purposes of this chapter are to – (1) minimize the paperwork burden for individuals, small businesses, educational a nd nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons resulting from the collection of information by or for the Federal Govern ment.” (35 USC 3501; emphasis added). Section 110(k)(5) of the Clean Air Act states “The Administrator shall notify the State of the inadequacies, and may estab lish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions.”(emphasis added). EPA Response : No change made. Specific Comments

1. Page 1. Reviewer recommends clarifying the scope of the guidance document and to what programs the guidance applies within th e summary. Also, a related issue can be found on page 318 in the sentence starting with “Finally, the EPA does intend in this final action . . . .” where the revi ewer recommends clarifying the application of the SSM Policy. EPA Response : Edits shown on or near pages 4–5, also respondi ng in part to General Comment #3.
2. Page 30. Reviewer recommends changing the da te “November 22, 2016” to have it set to 18 months from publication of th e federal register notice. EPA Response : No change made.
3. Page 31. For the paragraph beginning with, “T he implications for a regulated source. . . .” reviewer recommends providi ng data or references pertaini ng to the frequency of SSM events and any analysis with respect to how many sources would be anticipated to need to take steps to better control emissions. EPA Response : Edits shown on or near pages 31–32.
4. Page 34. Reviewer recommends clarifying the first sentence within section III as there appears to be a word or word s missing within the sentence. EPA Response : Edits shown on or near page 34.
5. Page 52. Reviewer recommends revising the para graph in numbered section 2 to be read as follows (new language is underlined). The rationale for the recomm endation is that as written, it suggests that the reasoning of th e NRDC case is binding nationwide because the D.C. Circuit was reviewing a national rule. In point of fact, wh at the reviewer views as binding nationwide is the resu lt reached by the D.C. Circuit as to the particular rule before it. The reasoning of the D.C. Circuit is usually also binding as to judicial review

### Summary	of	Interagency	Working	Com ments	on	Draft	Language	under EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Re view.

3 of later nationwide rules raising the same issues, but that is only because those rules also must be reviewed in the D.C. Circuit. Wher e the same issue comes up later in a regional rule, however, unless it is some how controlled by the regulations that were at issue in the D.C. Circuit, the reviewer would take the position that the regional circuit is not bound to follow the D.C. Circuit’s reasoning, although it would be persuasive precedent.
a. The EPA also disagrees with commenters who suggested that a decision of the D.C. Circuit should have no bearing on actions that affect states in other Circuits. The CAA vests exclusive authority with the D.C. Circuit to review nationally applicable regulations and any action of nationwide scope or effect. Accordingly, any decision of the D.C. Circuit in co nducting such review is binding nationwide with respect to the action under review, a nd the D.C. Circuit’s reasoning is also binding with respect to review of future EPA actions raising the same issues that will be subject to review with in that Circuit. Given that EPA has determined that this action has nationwide scope and effect, it is subject to exclusive review in the D.C. Circuit, so the EPA believes it is appropriate to apply the reasoning of the NRDC court, which interprets CAA s ections 113 and 304, to determine the legality of affirmative defense pr ovisions in this national action. EPA Response : Edits shown on or near pages 50–51.
6. Page 54. Reviewer recommends clarifying the party referenced in the following sentence was a party from the NRDC case and if the party referenced was not from the NRDC case, the reviewer recommends revising or removing the sentence.
a. “The EPA also does not believe that this rulemaking is the appropriate forum in which to challenge the court’ s decision. If the commenter believes that the D.C. Circuit’s holding in NRDC v. EPA was in error for this re ason, the commenter should have pursued possible remedy thr ough the judicial system, for example by requesting the D.C. Circuit grant rehearing en banc to reconsider the NRDC v. EPA decision.” EPA Response : Edits shown on or near page 53.
7. Page 92. Reviewer recommends removing the se ntence starting with, “To the extent the commenters are arguing. . . .” as it does not appear to be necessary. EPA Response : See EPA Response to Specific Comment #8.
8. Page 95. Reviewer recommends clarifying the paragraph provided below with the provided edits in underline (additions) and stri keout (subtractions). The reason for these edits is that the suggestion th at the guidance porti on of this action is also “final” seems inconsistent with the repeated assertions that it is a non-bind ing policy statement. If the guidance portion is truly a policy statement, th en it is not “final” as free-standing action; instead, it is only “final” to the extent its rati onale is incorporated into the specific actions at issue here. Also the final two sentences , especially the final sentence, is vague.
a. The EPA likewise disagrees with the ar gument that its ac tion, including the issuance of the revised and updated SSM Policy of 2015, is not a final agency

### Summary	of	Interagency	Working	Com ments	on	Draft	Language	under EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Re view.

4 action. Within this action, the EPA is taki ng final agency action to respond to the Petition, updating its interpretations of the CAA in the SSM Policy and applying its interpretations of the CAA in the SSM Policy to specific SIP provisions in the SIPs of many states. The EPA is c onducting this action through notice-andcomment rulemaking to assure full cons ideration of the issues. As stated elsewhere in this document, the revi sed SSM Policy is a non-binding policy statement that does not, in and of itself, constitute “final” action. However, EPA has taken “final” action by responding to the Petition and issui ng the resulting SIP Call. To the extent that interpretations expressed in the revised SSM Policy are also relied on to support this “final” action, then EPA’s interpretations of the CAA requirements for SIP provisions appli cable to emissions during SSM events are part of the final agency action and are subject to judicial review. To the extent the commenters are otherwise arguing that the issuance of the updated SSM Policy in and of itself is not final agency action subject to ju dicial review under the CAA, the EPA agrees with this assertion. EPA Response : Edits shown on or near pages 91–92, also addressing Specific Comment #7.
9. Page 114. For the response provided, could th e agency directly address the comments regarding designation as a 307(d) rule and th e procedures required in section 307(d)? EPA Response : No change made.
10. Page 120. Reviewer recomme nds clarifying what actions EPA is referencing in the sentence that states, “Since the issuance of th e court’s opinion [. . .] EPA has been taking actions to address affirmative defense provi sions in its own regulations . . . .” EPA Response : See EPA Response to Specific Comment #11.
11. Page 120. Reviewer recomm ends providing clarifying wh at other regulations and existing actions are necessary to remove affirmative defenses and why that is not being done within this rulemaking. EPA Response : Edits shown on or near page s 116–117, also addressing Specific Comment #10.
12. Page 123. Reviewer recomme nds providing additional info rmation on how many of the comments provided on the proposed rule are no longer relevant for the sentence starting with “Because the EPA’s interpretation of the CAA with respect . . . .” EPA Response : No change made.
13. Page 140. Reviewer recomm ends clarifying whether the 69,000 public comments are unique comments and if not, how many unique comments were provide d. Also, reviewer recommends providing this information earlie r in the FRN (e.g., introduction, summary) as stakeholders may be intere sted in this information.

### Summary	of	Interagency	Working	Com ments	on	Draft	Language	under EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Re view.

5 EPA Response : Edits shown on or near pages 15–16.
14. Page 161. Reviewer recomm ends clarifying the paragr aph starting with “The commenters are likewise incorr ect that the EPA . . .” by mo re directly re sponding to the comment with the reasons w hy the analysis was not. EPA Response : Edits shown on or near pages 163–164.
15. Page 167-168. Reviewer recommends revisi ng the comment response as the statements provided within the comment response are inco rrect. Specifically, the implication that action [sic] the EPA does not need to evaluate or quantify costs, or that costs such as reissuing permits are not direct costs because states have a choice in how to comply with an EPA is incorrect. EPA Response : No change made.
16. Page 178, footnote 121. Reviewer recommends removing the Luminant decision cited in the footnote as it was wit hdrawn and superseded. EPA Response : Edits shown on or near page 172.
17. Page 267. Reviewer recomme nds clarifying whether the Cr edible Evidence Rule will need any changes based on the outcome of this rulemaking. EPA Response : Edits shown on or near page 254.
18. Page 451. Reviewer recommends dele ting or modifying the sentence below (modifications in strikeout) because some of the New Source Review consent decrees include affirmative defenses to penalties that mirror the old SSM policy which may be okay in the enforcement context.
a. “Consent decrees or settlement agreemen ts negotiated by the EPA to resolve enforcement actions do not raise the same concerns as contain automatic exemptions for excess emissions during SSM periods or any other provisions that are similar to the SIP provisions that th e EPA has found substantially inadequate in this SIP call action.” EPA Response : Edits shown on or near page 426.
19. Page 542-543. Reviewer recommends removing one of the instances of the sections for terms malfunction , startup , and SSM that are repeated. EPA Response : Edits shown on or near pages 516–517. Typographical Comments:

1. Page 9. Remove “_” from between “statute” and “mean”. EPA Response : Edit shown on or near page 9.

### Summary	of	Interagency	Working	Com ments	on	Draft	Language	under EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Re view.

6 2. Page 51. Change “import” to “importance” in the sentence starting with “However, the commenter missed . . . .” EPA Response : Edit shown on or near page 49.
3. Page 294. Remove “to” before “for” from the sentence starting with, “In its 1999 SSM Guidance, the EPA expressly recognized . . . .” EPA Response : Edit shown on or near page 279.
4. Reviewer recommends using differe nt shorthand for each relevant Luminant Generation Co. v. EPA case to avoid confusion. Specificall y, the references on pages 315-318 refer to a Luminant case where the State of Texas was the Petitioner and the case itself did not deal with SSM issues. On pages 118-119, 61-65, and 86-87, the Luminant case references is where the State of Texas is not the Petitioner, and th e partial approval of SSM issues is one of the i ssues the Court focuses on. EPA Response : Edits shown on or near page 299–303.
5. Reviewer recommends removing “or not” after “whether” in all locations (i.e., changing “whether or not” to “whether”). EPA Response : This change has been made in most or all instances that do not involve direct quotes from other sources.
6. Reviewer recommends removing “obviously,” “clear ly,” and other such redundant terms throughout the document, where appropriate. EPA Response : This change has been made in some cases.
7. Reviewer recommends using Oxford/Harvard commas within the document to help alleviate potential confusion in series. EPA Response: No change made.