Summary	of	Interagency	Working	Comments	on	Draft	Language	under

EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Review.

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 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 Excess Emissions During Periods of Startup, 

Shutdown and Malfunction 

RIN 2060-AR68 

General Comments 

1. Reviewer recommends developing a table of abbreviations and acronyms and a table of 

references (e.g., court cases, federal register notices). 

2. Reviewer recommends moving a significant portion of the comments and responses to 

EPA’s comment response document (CRD) and reorganizing the preamble. As provided, 

many of the comments are nearly identical that 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. 

3. Reviewer recommends clarifying why EPA has expanded the scope beyond the initial 

Petition to other states not identified within 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. 

4. Reviewer recommends clarifying a State’s requirements for adoption of EPA’s NSPS or 

NESHAP regulations that have not yet been revised to remove affirmative defenses by 

EPA and the potential benefits and costs of implementing different strategies. 

Specifically, is a State required to modify their SIP if the State incorporates by reference 

without modification or condition an EPA NSPS or NESHAP regulation that allows for 

affirmative defenses 

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. 

6. Reviewer recommends further elaboration and clarification on how this action does not 

fall under the Paperwork Reduction Act as a SIP call 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 and nonprofit institutions, Federal contractors, 

State, local and tribal governments, and other persons resulting from the collection of 

information by or for the Federal Government.” (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 establish reasonable deadlines (not to exceed 18 months after 

the date of such notice) for the submission of such plan revisions.”(emphasis added). 
Summary	of	Interagency	Working	Comments	on	Draft	Language	under

EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Review.

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Specific Comments 

1. Page 1. Reviewer recommends clarifying the scope of the guidance document and to 

what programs the guidance applies within the 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 reviewer recommends clarifying the application of the SSM 

Policy. 

2. Page 30. Reviewer recommends changing the date “November 22, 2016” to have it set to 

18 months from publication of the federal register notice. 

3. Page 31. For the paragraph beginning with, “The implications for a regulated source. . . 

.” reviewer recommends providing data or references pertaining 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. 

4. Page 34. Reviewer recommends clarifying the first sentence within section III as there 

appears to be a word or words missing within the sentence. 

5. Page 52. Reviewer recommends revising the paragraph in numbered section 2 to be read 

as follows (new language is underlined). The rationale for the recommendation is that as 

written, it suggests that the reasoning of the NRDC case is binding nationwide because 

the D.C. Circuit was reviewing a national rule. In point of fact, what the reviewer views 

as binding nationwide is the result 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 

of later nationwide rules raising the same issues, but that is only because those rules also 

must be reviewed in the D.C. Circuit. Where the same issue comes up later in a regional 

rule, however, unless it is somehow 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 conducting such review is binding nationwide 

with respect to the action under review, and 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 within 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 sections 113 and 304, to determine the 

legality of affirmative defense provisions in this national action. 

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. 
Summary	of	Interagency	Working	Comments	on	Draft	Language	under

EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Review.

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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 reason, the commenter 

should have pursued possible remedy through the judicial system, for example by 

requesting the D.C. Circuit grant rehearing en banc to reconsider the NRDC v. 

EPA decision.” 

7. Page 92. Reviewer recommends removing the sentence starting with, “To the extent the 

commenters are arguing. . . .” as it does not appear to be necessary. 

8. Page 95. Reviewer recommends clarifying the paragraph provided below with the 

provided edits in underline (additions) and strikeout (subtractions). The reason for these 

edits is that the suggestion that the guidance portion of this action is also “final” seems 

inconsistent with the repeated assertions that it is a non-binding policy statement. If the 

guidance portion is truly a policy statement, then it is not “final” as free-standing action; 

instead, it is only “final” to the extent its rationale 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 argument that its action, including the 

issuance of the revised and updated SSM Policy of 2015, is not a final agency 

action. Within this action, the EPA is taking 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 conducting this action through notice-andcomment rulemaking to assure full consideration of the issues. As stated 

elsewhere in this document, the revised 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 issuing 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 applicable 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 judicial review under 

the CAA, the EPA agrees with this assertion. 

9. Page 114. For the response provided, could the agency directly address the comments 

regarding designation as a 307(d) rule and the procedures required in section 307(d)? 

10. Page 120. Reviewer recommends clarifying what actions EPA is referencing in the 

sentence that states, “Since the issuance of the court’s opinion [. . .] EPA has been taking 

actions to address affirmative defense provisions in its own regulations . . . .” 

11. Page 120. Reviewer recommends providing clarifying what other regulations and 

existing actions are necessary to remove affirmative defenses and why that is not being 

done within this rulemaking. 

12. Page 123. Reviewer recommends providing additional information 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 . . . .” 
Summary	of	Interagency	Working	Comments	on	Draft	Language	under

EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Review.

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13. Page 140. Reviewer recommends clarifying whether the 69,000 public comments are 

unique comments and if not, how many unique comments were provided. Also, reviewer 

recommends providing this information earlier in the FRN (e.g., introduction, summary) 

as stakeholders may be interested in this information. 

14. Page 161. Reviewer recommends clarifying the paragraph starting with “The 

commenters are likewise incorrect that the EPA . . .” by more directly responding to the 

comment with the reasons why the analysis was not. 

15. Page 167-168. Reviewer recommends revising the comment response as the statements 

provided within the comment response are incorrect. Specifically, the implication that 

action 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. 

16. Page 178, footnote 121. Reviewer recommends removing the Luminant decision cited in 

the footnote as it was withdrawn and superseded. 

17. Page 267. Reviewer recommends clarifying whether the Credible Evidence Rule will 

need any changes based on the outcome of this rulemaking. 

18. Page 451. Reviewer recommends deleting 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 agreements 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 the EPA has found substantially inadequate 

in this SIP call action.” 

19. Page 542-543. Reviewer recommends removing one of the instances of the sections for 

terms malfunction, startup, and SSM that are repeated. 

Typographical Comments: 

1. Page 9. Remove “_” from between “statute” and “mean”. 

2. Page 51. Change “import” to “importance” in the sentence starting with “However, the 

commenter missed . . . .” 

3. Page 294. Remove “to” before “for” from the sentence starting with, “In its 1999 SSM 

Guidance, the EPA expressly recognized . . . .” 

4. Reviewer recommends using different shorthand for each relevant Luminant Generation 

Co. v. EPA case to avoid confusion. Specifically, 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 the partial approval of 

SSM issues is one of the issues the Court focuses on. 

5. Reviewer recommends removing “or not” after “whether” in all locations (i.e., changing 

“whether or not” to “whether”). 

6. Reviewer recommends removing “obviously,” “clearly,” and other such redundant terms 
Summary	of	Interagency	Working	Comments	on	Draft	Language	under

EO12866/13563	Interagency	Review.		Subject	to	Further	Policy	Review.

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throughout the document, where appropriate. 

7. Reviewer recommends using Oxford/Harvard commas within the document to help 

alleviate potential confusion in series.