***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 1 of 159 

6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-HQ-OAR-2012-0322; FRL-9914-41-OAR] 

RIN 2060-AR68 

State Implementation Plans: Response to Petition for Rulemaking; Findings of 

Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess 

Emissions During Periods of Startup, Shutdown and Malfunction; Supplemental 

Proposal to Address Affirmative Defense Provisions in States Included in the 

Petition for Rulemaking and in Additional States 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Supplemental notice of proposed rulemaking. 

SUMMARY: In this supplemental notice of proposed rulemaking (SNPR), the 

Environmental Protection Agency (EPA) is supplementing and revising what it 

previously proposed as its response to a petition for rulemaking filed by the Sierra Club 

(the Petition). By notice published on February 22, 2013, the EPA proposed its response 

to the Petition’s requests concerning treatment of excess emissions in state rules by 

sources during periods of startup, shutdown or malfunction (SSM). Subsequent to that 

proposal, a federal court ruled that the Clean Air Act (CAA or Act) precludes authority of 

the EPA to create affirmative defense provisions applicable to private civil suits. As a 

result, in this SNPR the EPA is proposing to apply its revised interpretation of the CAA, 

but only with respect to affirmative defense provisions in state implementation plans 

(SIPs). For specific affirmative defense provisions identified in the Petition, we are 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 2 of 159 

revising the basis for the proposed findings of substantial inadequacy and SIP calls or 

proposing new findings of substantial inadequacy and SIP calls. For specific provisions 

that the EPA has independently identified, including SIP provisions in states not included 

in the February 2013 proposal notice, we are proposing new findings and SIP calls. 

DATES: Comments. Comments must be received on or before November 6, 2014. 

Public Hearing. The EPA will hold a public hearing on this SNPR on October 7, 

2014, in Washington, D.C. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR2012-0322, by one of the following methods: 

• http://www.regulations.gov: Follow the online instructions for submitting 

comments. 

• Email: a-and-r-docket@epa.gov. 

• Fax: (202) 566-9744. 

• Mail: Attention Docket ID No. EPA-HQ-OAR-2012-0322, U.S. Environmental 

Protection Agency, EPA Docket Center, Air Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue, NW, Washington, D.C. 20460. Please include a total of two 

copies. 

• Hand Delivery: U.S. Environmental Protection Agency, EPA Docket Center, 

William Jefferson Clinton West Building, Room 3334, 1301 Constitution Avenue, NW, 

Washington, D.C. 20004, Attention Docket ID No. EPA-HQ-OAR-2012-0322. Such 

deliveries are only accepted during the Docket’s normal hours of operation, and special 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 3 of 159 

arrangements should be made for deliveries of boxed information. 

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2012-0322. 

The EPA’s policy is that all comments received will be included in the public docket 

without change and may be made available online at http://www.regulations.gov, 

including any personal information provided, unless the comment includes information 

claimed to be Confidential Business Information (CBI) or other information whose 

disclosure is restricted by statute. Do not submit information that you consider to be CBI 

or otherwise protected through http://www.regulations.gov or email. The 

http://www.regulations.gov website is an “anonymous access” system, which means the 

EPA will not know your identity or contact information unless you provide it in the body 

of your comment. If you send an email comment directly to the EPA without going 

through http://www.regulations.gov, your email address will be automatically captured 

and included as part of the comment that is placed in the public docket and made 

available on the Internet. If you submit an electronic comment, the EPA recommends that 

you include your name and other contact information in the body of your comment and 

with any CD you submit. If the EPA cannot read your comment due to technical 

difficulties and cannot contact you for clarification, the EPA may not be able to consider 

your comment. Electronic files should avoid the use of special characters, avoid any form 

of encryption and be free of any defects or viruses. For additional information about the 

EPA’s public docket visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 4 of 159 

comments, go to section I.C of the SUPPLEMENTARY INFORMATION section of 

this document. 

Docket. All documents in the docket are listed in the http://www.regulations.gov

index. Although listed in the index, some information is not publicly available, e.g., CBI 

or other information whose disclosure is restricted by statute. Certain other material, such 

as copyrighted material, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically at http://www.regulations.gov or in 

hard copy at the U.S. Environmental Protection Agency, EPA Docket Center, William 

Jefferson Clinton West Building, Room 3334, 1301 Constitution Ave., NW, Washington, 

D.C. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The telephone number for the Public Reading Room is 

(202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. 

Public Hearing: A public hearing will be held on October 7, 2014, at the William 

Jefferson Clinton West Building, Room 1117A, 1301 Constitution Avenue, Washington, 

D.C. 20460. The public hearing will convene at 9 a.m. (Eastern Standard Time) and 

continue until the earlier of 6 p.m. or 1 hour after the last registered speaker has spoken. 

People interested in presenting oral testimony or inquiring as to whether a hearing is to be 

held should contact Ms. Pamela Long, Air Quality Planning Division, Office of Air 

Quality Planning and Standards (C504-01), U.S. Environmental Protection Agency, 

Research Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-

5509, email address long.pam@epa.gov, at least 5 days in advance of the public hearing 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 5 of 159 

(see DATES). People interested in attending the public hearing must also call Ms. Long 

to verify the time, date and location of the hearing. The public hearing will provide 

interested parties the opportunity to present data, views or arguments concerning the 

proposed action (i.e., this SNPR specific to affirmative defense provisions in SIPs). The 

EPA will make every effort to accommodate all speakers who arrive and register. A 

lunch break is scheduled from 12:30 p.m. until 2 p.m. Because this hearing is being held 

at U.S. government facilities, individuals planning to attend the hearing should be 

prepared to show valid picture identification to the security staff in order to gain access to 

the meeting room. Please note that the REAL ID Act, passed by Congress in 2005, 

established new requirements for entering federal facilities. These requirements took 

effect July 21, 2014. If your driver’s license is issued by Alaska, American Samoa, 

Arizona, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana, New York, 

Oklahoma or the state of Washington, you must present an additional form of 

identification to enter the federal building where the public hearing will be held. 

Acceptable alternative forms of identification include: federal employee badges, 

passports, enhanced driver’s licenses, and military identification cards. In addition, you 

will need to obtain a property pass for any personal belongings you bring with you. Upon 

leaving the building, you will be required to return this property pass to the security desk. 

No large signs will be allowed in the building, cameras may only be used outside of the 

building and demonstrations will not be allowed on federal property for security reasons. 

The EPA may ask clarifying questions during the oral presentations but will not respond 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 6 of 159 

to the presentations at that time. Written statements and supporting information submitted 

during the comment period will be considered with the same weight as oral comments 

and supporting information presented at the public hearing. Written comments on the 

proposed rule must be received by November 6, 2014. Commenters should notify Ms. 

Long if they will need specific equipment, or if there are other special needs related to 

providing comments at the hearing. The EPA will provide equipment for commenters to 

show overhead slides or make computerized slide presentations if we receive special 

requests in advance. Oral testimony will be limited to 5 minutes for each commenter. The 

EPA encourages commenters to provide the EPA with a copy of their oral testimony 

electronically (via email or CD) or in hard copy form. The hearing schedule, including 

lists of speakers, will be posted on the EPA’s website at 

http://www.epa.gov/air/urbanair/sipstatus/. Verbatim transcripts of the hearings and 

written statements will be included in the docket for the rulemaking. The EPA will make 

every effort to follow the schedule as closely as possible on the day of the hearing; 

however, please plan for the hearing to run either ahead of schedule or behind schedule. 

FOR FURTHER INFORMATION CONTACT: Questions concerning this 

SNPR should be addressed to Ms. Lisa Sutton, U.S. EPA, Office of Air Quality Planning 

and Standards, State and Local Programs Group (C539-01), Research Triangle Park, NC 

27711, telephone number (919) 541-3450, email address: sutton.lisa@epa.gov. 

If you have questions concerning the public hearing, please contact Ms. Pamela 

Long, U.S. Environmental Protection Agency, Office of Air Quality Planning and 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 7 of 159 

Standards, Air Quality Planning Division (C504-01), Research Triangle Park, NC 27711, 

telephone (919) 541-0641, fax number (919) 541-5509, email address: 

long.pam@epa.gov (preferred method for registering). 

SUPPLEMENTARY INFORMATION: 

For questions related to a specific SIP, please contact the appropriate EPA 

Regional Office: 

EPA 

Regional 

Office 

Contact for Regional Office (person, 

mailing address, telephone number) State 

I Alison Simcox, Environmental 

Scientist, EPA Region 1, 5 Post Office 

Square, Suite 100, Boston, MA 02109-

3912, (617) 918-1684. 

Connecticut, Massachusetts, 

Maine, New Hampshire, 

Rhode Island and Vermont. 

II Paul Truchan, EPA Region 2, 290 

Broadway, 25th Floor, New York, NY 

10007-1866, (212) 637-3711. 

New Jersey, New York, Puerto 

Rico and Virgin Islands. 

III Amy Johansen, EPA Region 3, 1650 

Arch Street, Philadelphia, PA 19103-

2029, (215) 814-2156. 

District of Columbia, 

Delaware, Maryland, 

Pennsylvania, Virginia and 

West Virginia. 

IV Joel Huey, EPA Region 4, Atlanta 

Federal Center, 61 Forsyth Street, SW, 

Atlanta, GA 30303-8960, (404) 562-

9104. 

Alabama, Florida, Georgia, 

Kentucky, Mississippi, North 

Carolina, South Carolina and 

Tennessee. 

V Christos Panos, Air and Radiation 

Division (AR-18J), EPA Region 5, 77 

West Jackson Boulevard, Chicago, IL 

60604-3507, (312) 353-8328. 

Illinois, Indiana, Michigan, 

Minnesota, Ohio and 

Wisconsin. 

VI Alan Shar (6PD-L), EPA Region 6, 

Fountain Place 12th Floor, Suite 1200, 

1445 Ross Avenue, Dallas, TX 75202-

2733, (214) 665-6691. 

Arkansas, Louisiana, New 

Mexico, Oklahoma and Texas. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 8 of 159 

EPA 

Regional 

Office 

Contact for Regional Office (person, 

mailing address, telephone number) State 

VII Lachala Kemp, EPA Region 7, Air 

Planning and Development Branch, 

11201 Renner Boulevard, Lenexa, KS 

66219, (913) 551-7214. Alternate 

contact is Ward Burns, (913) 551-7960. 

Iowa, Kansas, Missouri and 

Nebraska. 

VIII Adam Clark, Air Quality Planning Unit 

(8P-AR) Air Program, Office of 

Partnership and Regulatory Assistance, 

EPA Region 8, 1595 Wynkoop Street, 

Denver, CO 80202-1129, (303) 312-

7104. 

Colorado, Montana, North 

Dakota, South Dakota, Utah 

and Wyoming. 

IX Lisa Tharp, EPA Region 9, Air 

Division, 75 Hawthorne Street (AIR-8), 

San Francisco, CA 94105, (415) 947-

4142. 

Arizona, California, Hawaii, 

Nevada and the Pacific 

Islands. 

X Donna Deneen, Environmental 

Engineer, Office of Air, Waste and 

Toxics (AWT-107), EPA Region 10, 

1200 Sixth Avenue, Suite 900, Seattle, 

WA 98101, (206) 553-6706. 

Alaska, Idaho, Oregon and 

Washington. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this rule include states, U.S. territories, local 

authorities and eligible tribes that are currently administering, or may in the future 

administer, EPA-approved implementation plans (“air agencies”).1

 The EPA’s action on 

 

1

 The EPA respects the unique relationship between the U.S. government and tribal 

authorities and acknowledges that tribal concerns are not interchangeable with state 

concerns. Under the CAA and the EPA regulations, a tribe may, but is not required to, 

apply for eligibility to have a tribal implementation plan (TIP). For convenience, we refer 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 9 of 159 

the Petition is potentially of interest to all such entities because the EPA is evaluating 

issues related to basic CAA requirements for SIPs. Through this rulemaking, the EPA is 

both clarifying and applying its interpretation of the CAA with respect to SIP provisions 

applicable to excess emissions during SSM events in general. In addition, in the final 

action based on this supplemental proposal, the EPA may find specific SIP provisions in 

states identified either in the Petition or by the EPA independently to be substantially 

inadequate to meet CAA requirements, pursuant to CAA section 110(k)(5), and thus 

those states will potentially be affected by this rulemaking directly.2

 For example, if a 

state’s existing SIP includes an affirmative defense provision that would purport to alter 

the jurisdiction of the federal courts to assess monetary penalties for violations of CAA 

requirements, then the EPA may determine that the SIP provision is substantially 

inadequate because the provision is inconsistent with fundamental requirements of the 

CAA. This rule may also be of interest to the public and to owners and operators of 

 

to “air agencies” in this rulemaking collectively when meaning to refer in general to 

states, the District of Columbia, U.S. territories, local air permitting authorities and 

eligible tribes that are currently administering, or may in the future administer, EPAapproved implementation plans. The EPA notes that the petition under evaluation does 

not identify any specific provisions related to tribal implementation plans. We therefore 

refer to “state” or “states” rather than “air agency” or “air agencies” when meaning to 

refer to one, some or all of the 39 states identified in the Petition or other states identified 

by the EPA in this SNPR. We also use “state” or “states” rather than “air agency” or “air 

agencies” when quoting or paraphrasing the CAA or other document that uses that term 

even when the original referenced passage may have applicability to tribes as well. 

2

 The specific SIPs that include affirmative defense provisions identified by the EPA 

independently are listed under section II.B of this SNPR (see table). Furthermore, in 

comments received on the February 2013 proposal notice, a commenter brought to the 

EPA’s attention one affirmative defense provision in a SIP, that of Texas. In the 

rulemaking docket, the comment letter may be found at EPA-HQ-OAR-2012-0322-0621. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 10 of 159 

industrial facilities that are subject to emission limits in SIPs, because it may require 

changes to state rules applicable to excess emissions. When finalized, this action will 

embody the EPA’s updated SSM Policy for all SIP provisions relevant to excess 

emissions during SSM events. 

B. Where can I get a copy of this document and other related information? 

In addition to being available in the docket, an electronic copy of this SNPR will 

be available on the World Wide Web. Following signature by the EPA Assistant 

Administrator, a copy of this SNPR will be posted on the EPA’s website, under “State 

Implementation Plans to Address Emissions During Startup, Shutdown and 

Malfunction,” at http://www.epa.gov/air/urbanair/sipstatus. In addition to this notice, 

other relevant documents are located in the docket, including a copy of the Petition and a 

copy of the February 2013 proposal notice. 

C. What should I consider as I prepare my comments? 

1. Submitting CBI. Do not submit this information to the EPA through 

http://www.regulations.gov or email. Clearly mark the part or all of the information that 

you claim to be CBI. For CBI information in a CD that you mail to the EPA, mark the 

outside of the CD as CBI and then identify electronically within the CD the specific 

information that is claimed as CBI. In addition to one complete version of the comment 

that includes information claimed as CBI, a copy of the comment that does not contain 

the information claimed as CBI must be submitted for inclusion in the public docket. 

Information so marked will not be disclosed except in accordance with procedures set 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 11 of 159 

forth in 40 CFR part 2. Send or deliver information identified as CBI only to the 

following address: Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. 

EPA, Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2012-

0322. 

2. Tips for preparing your comments. When submitting comments, 

remember to: 

• Identify the rulemaking by docket number and other identifying information 

(subject heading, Federal Register date and page number). 

• Follow directions - The agency may ask you to respond to specific questions or 

organize comments by referencing a Code of Federal Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree; suggest alternatives and substitute language 

for your requested changes. 

• Describe any assumptions and provide any technical information and/or data that 

you used. 

• If you estimate potential costs or burdens, explain how you arrived at your 

estimate in sufficient detail to allow for it to be reproduced. 

• Provide specific examples to illustrate your concerns, and suggest alternatives. 

• Explain your views as clearly as possible, avoiding the use of profanity or 

personal threats. 

• Make sure to submit your comments by the comment period deadline identified. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 12 of 159 

D. How is the preamble organized? 

The information presented in this preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document and other related 

information? 

C. What should I consider as I prepare my comments? 

D. How is the preamble organized? 

E. What is the meaning of key terms used in this notice? 

II. Overview of This SNPR 

A. How does this notice supplement or revise the EPA’s already 

proposed rulemaking to respond to the Petition? 

B. To which air agencies does this SNPR apply and why? 

C. What is the EPA proposing for any state that receives a finding of 

substantial inadequacy and a SIP call? 

D. What are potential impacts on affected states and sources? 

III. Background for This SNPR 

A. What did the Petitioner request? 

B. What did the EPA previously propose in this rulemaking with 

respect to affirmative defense provisions in SIPs? 

C. What events necessitated this SNPR? 

IV. What is the EPA proposing through this SNPR in response to the 

Petitioner’s request for rescission of the EPA policy on affirmative 

defense provisions? 

A. Petitioner’s Request 

B. The EPA’s Proposed Revised Response 

V. Revised SSM Policy on Affirmative Defense Provisions in SIPs 

VI. Legal Authority, Process and Timing for SIP Calls 

VII. What is the EPA proposing through this SNPR for each of the specific 

affirmative defense provisions identified in the Petition or identified 

independently by the EPA? 

A. Overview of the EPA’s Evaluation of Specific Affirmative 

Defense SIP Provisions 

B. Affected States in EPA Region III 

1. District of Columbia 

2. Virginia 

3. West Virginia 

C. Affected States in EPA Region IV 

1. Georgia 

2. Mississippi 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 13 of 159 

3. South Carolina 

D. Affected States in EPA Region V 

1. Illinois 

2. Indiana 

3. Michigan 

E. Affected States and Local Jurisdictions in EPA Region VI 

1. Arkansas 

2. New Mexico 

3. New Mexico: Albuquerque-Bernalillo County 

4. Texas 

F. Affected State in EPA Region VIII: Colorado 

1. Petitioner’s Analysis 

2. The EPA’s Prior Proposal 

3. The EPA’s Revised Proposal 

G. Affected States and Local Jurisdictions in EPA Region IX 

1. Arizona 

2. Arizona: Maricopa County 

3. California: Eastern Kern Air Pollution Control District 

4. California: Imperial County Air Pollution Control District 

5. California: San Joaquin Valley Air Pollution Control 

District 

H. Affected States and Local Jurisdictions in EPA Region X 

1. Alaska 

2. Washington 

3. Washington: Energy Facility Site Evaluation Council 

4. Washington: Southwest Clean Air Agency 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory 

Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 – Federalism 

F. Executive Order 13175 – Consultation and Coordination with 

Indian Tribal Governments 

G. Executive Order 13045 – Protection of Children from 

Environmental Health Risks and Safety Risks 

H. Executive Order 13211 – Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution or Use 

I. National Technology Transfer and Advancement Act 

J. Executive Order 12898 – Federal Actions to Address 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 14 of 159 

Environmental Justice in Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

L. Judicial Review 

IX. Statutory Authority 

E. What is the meaning of key terms used in this notice? 

For the purpose of this notice, the following definitions apply unless the context 

indicates otherwise: 

The terms Act or CAA or the statute mean or refer to the Clean Air Act. 

The term affirmative defense means, in the context of an enforcement proceeding, 

a response or defense put forward by a defendant, regarding which the defendant has the 

burden of proof, and the merits of which are independently and objectively evaluated in a 

judicial or administrative proceeding. The term affirmative defense provision means more 

specifically a state law provision in a SIP that specifies particular criteria or preconditions 

that, if met, would purport to preclude a court from imposing monetary penalties or other 

forms of relief for violations of SIP requirements in accordance with CAA section 113 or 

CAA section 304. 

The term Agency means or refers to the EPA. When not capitalized, this term 

refers to an agency in general and not specifically to the EPA. 

The terms air agency and air agencies mean or refer to states, the District of 

Columbia, U.S. territories, local air permitting authorities with delegated authority from 

the state, and tribal authorities with appropriate CAA jurisdiction. 

The term automatic exemption means a generally applicable provision in a SIP 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 15 of 159 

that would provide that if certain conditions existed during a period of excess emissions, 

then those exceedances would not be considered violations of the applicable emission 

limitations. 

The term director’s discretion provision means, in general, a regulatory provision 

that authorizes a state regulatory official unilaterally to grant exemptions or variances 

from applicable emission limitations or control measures, or to excuse noncompliance 

with applicable emission limitations or control measures, which would be binding on 

EPA and the public, in spite of SIP provisions that would otherwise render such conduct 

by the source a violation. 

The term EPA refers to the United States Environmental Protection Agency. 

The term excess emissions means the emissions of air pollutants from a source 

that exceed any applicable SIP emission limitations. 

The term malfunction means a sudden and unavoidable breakdown of process or 

control equipment. 

The term NAAQS means national ambient air quality standard or standards. These 

are the national primary and secondary ambient air quality standards that the EPA 

establishes under CAA section 109 for criteria pollutants for purposes of protecting 

public health and welfare. 

The term Petition refers to the petition for rulemaking titled, “Petition to Find 

Inadequate and Correct Several State Implementation Plans under Section 110 of the 

Clean Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance Provisions,” 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 16 of 159 

filed by the Sierra Club with the EPA Administrator on June 30, 2011. 

The term Petitioner refers to the Sierra Club. 

The term shutdown means, generally, the cessation of operation of a source for 

any reason. 

The term SIP means or refers to a State Implementation Plan. Generally, the SIP 

is the collection of state statutes and regulations approved by the EPA pursuant to CAA 

section 110 that together provide for implementation, maintenance and enforcement of a 

national ambient air quality standard (or any revision thereof) promulgated under section 

109 for any air pollutant in each air quality control region (or portion thereof) within a 

state. In some parts of this notice, statements about SIPs in general would also apply to 

tribal implementation plans in general even though not explicitly noted. 

The term SNPR means or refers to this supplemental notice of proposed 

rulemaking. 

The term SSM refers to startup, shutdown or malfunction at a source. It does not 

include periods of maintenance at such a source. An SSM event is a period of startup, 

shutdown or malfunction during which there are exceedances of the applicable emission 

limitations and thus excess emissions. 

The term SSM Policy refers to the cumulative guidance that the EPA has issued 

concerning its interpretation of CAA requirements with respect to treatment of excess 

emissions during periods of startup, shutdown and malfunction at a source. The most 

comprehensive statement of the EPA’s SSM Policy prior to this proposed rulemaking is 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 17 of 159 

embodied in a 1999 guidance document discussed in more detail in this proposal. This 

specific guidance document is referred to as the 1999 SSM Guidance. When finalized, 

this action will embody the EPA’s updated SSM Policy for all SIP provisions relevant to 

excess emissions during SSM events. 

The term startup means, generally, the setting in operation of a source for any 

reason. 

II. Overview of This SNPR 

A. How does this notice supplement or revise the EPA’s already proposed 

rulemaking to respond to the Petition? 

By notice published on February 22, 2013 (78 FR 12459), we proposed to take 

action on a petition for rulemaking that the Sierra Club (the Petitioner) filed with the EPA 

Administrator on June 30, 2011 (the Petition). In that February 2013 proposal notice, we 

described and proposed the EPA’s response to each of the Petition’s three interrelated 

requests concerning the treatment of excess emissions from sources during periods of 

SSM in provisions in SIPs. Among other requests, the Petitioner requested that the EPA 

rescind its SSM Policy element interpreting the CAA to allow SIPs to include affirmative 

defense provisions for violations due to excess emissions during any type of SSM events 

because the Petitioner contended there is no legal basis for such provisions in SIPs. 

In this SNPR, we are supplementing and revising what we earlier proposed as our 

response to the Petitioner’s requests, but only to the extent the requests narrowly concern 

affirmative defense provisions in SIPs. We are not revising or seeking further comment 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 18 of 159 

on any other aspects of the February 2013 proposed action. 

First, based on reexamination of statutory requirements in light of a recent court 

decision, we are revising our interpretation of the CAA concerning the issue of 

affirmative defense provisions in SIPs. Accordingly we propose to grant the Petitioner’s 

overarching request that the EPA rescind its SSM Policy element that interpreted the 

CAA to allow affirmative defense provisions in SIPs. Our proposal to grant the Petition 

and to rescind our SSM Policy with respect to allowing affirmative defenses in SIPs is a 

revision of the position we previously proposed in the February 2013 proposal notice 

(i.e., to grant in part and to deny in part the Petition on this request). The basis for our 

proposed revision of the SSM Policy with respect to affirmative defense provisions in 

SIPs and our revised response to the Petition on this issue is provided in more detail in 

section IV of this SNPR. 

Second, we propose to grant the Petitioner’s request that the EPA apply a revised 

interpretation to, and effectuate the removal of, specific existing affirmative defense 

provisions in SIPs identified by the Petitioner as inconsistent with the CAA. Accordingly, 

we propose to grant the Petition with respect to specific existing affirmative defense 

provisions in the SIPs of 13 states. For all 13 of these states, we have already proposed 

SIP calls for one or more SIP provisions in our February 2013 proposal notice, but note 

that we did not at that time propose SIP calls for all affirmative defense provisions in 

those states because some of the provisions appeared to comply with our policy at the 

time of the proposal. What we are proposing in this SNPR is to grant the Petition with 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 19 of 159 

respect to all of the identified affirmative defenses in these states. 

Third, in addition to the specific affirmative defense provisions identified by the 

Petitioner, the EPA has independently identified other affirmative defense provisions in 

SIPs and is proposing in this SNPR to take action with respect to these SIP provisions as 

well. The newly identified affirmative defense provisions are found in six states’ SIPs. 

For two of the states whose SIPs include newly identified affirmative defense provisions, 

California and Texas, we did not propose a SIP call in the February 2013 proposal notice, 

as those states were not identified in the Petition. For the other four states (New Mexico, 

South Carolina, Washington and West Virginia), we did propose a SIP call in the 

February 2013 proposal notice for one or more SIP provisions, but at that time we did not 

propose a SIP call for all affirmative defense provisions identified in the Petition or for 

any affirmative defense provisions that were not identified in the Petition. The EPA is 

now including these six states’ affirmative defense provisions in order to provide 

comprehensive guidance to all states concerning affirmative defense provisions in SIPs 

and to avoid confusion that may arise due to recent court decisions relevant to such 

provisions under the CAA. Section VII of this SNPR presents the EPA’s analysis of each 

of the affirmative defense SIP provisions at issue. 

Fourth, for each of the states where the EPA proposes to grant the Petition 

concerning specific affirmative defense provisions or to take action on such provisions 

that EPA has independently identified, the Agency also proposes to find that the existing 

SIP provision at issue is substantially inadequate to meet CAA requirements and thus 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 20 of 159 

under CAA authority proposes to issue a “SIP call” with respect to that SIP provision. 

For those states for which the EPA promulgates a final finding of substantial inadequacy 

and a SIP call, the EPA has in the February 2013 notice proposed a schedule allowing the 

states 18 months within which to submit a corrective SIP revision. In section II.C of this 

SNPR, the EPA accordingly proposes that this schedule apply to all SIP provisions 

identified as substantially inadequate in this supplemental proposal. 

What EPA proposes in this SNPR supersedes the February 2013 proposal only 

insofar as the SNPR supplements or revises the February 2013 proposal notice with 

respect to the issues related to affirmative defense provisions in SIPs. After evaluation of 

public comment on this SNPR, the EPA intends to complete its action on the Petition in 

one final action, addressing together the issues discussed in the February 2013 proposal 

notice and in this SNPR. 

This action provides the EPA an opportunity to invite public comment on our 

SSM Policy specific to affirmative defenses. In this SNPR, the EPA is supplementing and 

revising its proposed responses to the issues in the Petition only to the extent they 

concern affirmative defenses in SIPs, and the EPA solicits comment on its proposed 

responses. We note that an opportunity to comment on the EPA’s proposed responses to 

other issues raised in the Petition was provided earlier, in the comment period initiated by 

our February 2013 proposal notice. Therefore, comments received on this SNPR will be 

considered germane only to the extent they pertain specifically to the subject of 

affirmative defenses in SIPs. The EPA does not intend to consider any further comments 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 21 of 159 

related to other aspects of the prior proposal, as those other aspects are not being 

reopened in this supplemental proposal. Moreover, because the EPA’s interpretation of 

the CAA with respect to the legal basis for affirmative defense provisions in SIPs has 

changed, the EPA does not intend to respond to comments previously submitted on the 

February 2013 proposal notice to the extent they apply to issues related to affirmative 

defense provisions in SIPs generally, or to issues related to specific affirmative defense 

provisions identified by the Petitioner, as those comments will be moot if the EPA 

finalizes its action as discussed in this SNPR. 

Through our proposed rulemaking action, which includes the February 2013 

proposal notice and this SNPR, the EPA is clarifying, restating and revising its SSM 

Policy. When finalized, this action will embody the EPA’s updated SSM Policy for all 

SIP provisions relevant to excess emissions during SSM events. The final action will also 

clarify for the affected states how they can resolve the identified deficiencies in their 

SIPs, as well as provide all air agencies guidance on SSM issues as they further develop 

their SIPs in the future. 

B. To which air agencies does this SNPR apply and why? 

In general, the EPA’s action on the Petition in this rulemaking may be of interest 

to all air agencies because the EPA is significantly clarifying, restating and revising its 

longstanding SSM Policy with respect to what the CAA requires concerning SIP 

provisions relevant to excess emissions during periods of startup, shutdown and 

malfunction. For example, the EPA is proposing in this SNPR to grant the Petitioner’s 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 22 of 159 

request that the EPA rescind its interpretation of the CAA that would allow affirmative 

defense provisions in SIPs. 

More specifically, this SNPR is directly relevant to the states for which we are 

now proposing SIP calls on the basis that those SIP provisions are inconsistent with CAA 

requirements because they include affirmative defenses. The EPA is proposing SIP calls 

with respect to affirmative defense SIP provisions in each of the 17 states (for provisions 

applicable in 23 statewide and local jurisdictions3

 and no tribal areas) that show either 

“Grant” or “SIP call” as the proposed action under table 1, “List of States With 

Affirmative Defense SIP Provisions for Which the EPA Proposes to Grant the Petition or 

to Address Such Provisions Identified by the EPA.” 

Table 1. List of States With SIP Affirmative Defense Provisions for Which the EPA 

Proposes to Grant the Petition or to Address Such Provisions Identified by the EPA 

EPA 

Region State 

Proposed actiona

 with respect to affirmative 

defenses applicable 

...for malfunctions? 

...for startup, 

shutdown or other 

modes? 

III District of Columbia Grant Not applicable 

Virginia ..................... Grant Not applicable 

West Virginia ............ SIP call (new) Not applicable 

IV Georgia ...................... Grant Grant 

Mississippi ................. Grant Grant 

 

3

 The state has the primary responsibility to implement SIP obligations, pursuant to CAA 

section 107(a). However, as CAA section 110(a)(2)(E) allows, a state may authorize and 

rely on a local or regional government, agency or instrumentality to carry out the SIP or a 

portion of the SIP within its jurisdiction. As a result, some of the SIP provisions at issue 

in this rulemaking apply to specific portions of a state. Thus, in certain states, submission 

of a corrective SIP revision may involve rulemaking in more than one jurisdiction. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 23 of 159 

South Carolina ........... SIP call (new) Not applicable 

V Illinois ....................... Grant Not applicable 

Indiana ....................... Grant Not applicable 

Michigan ................... Not applicable Grant 

VI Arkansas .................... Grant Not applicable 

New Mexico .............. Grant (for state) and 

SIP call (new for 

Albuquerque-Bernalillo 

County) 

Grant (for state) and 

SIP call (new for 

AlbuquerqueBernalillo County) 

Texas ......................... SIP call (new) Not applicable 

VIII Colorado .................... Grant (change from 

February 2013 proposal 

to Deny) 

Grant 

IX Arizona ...................... Grant (for state and for 

Maricopa County; 

change from February 

2013 proposal to Deny) 

Grant (for state and 

for Maricopa 

County) 

California ................... SIP call (new for 

Eastern Kern APCD, 

new for Imperial 

County APCD and new 

for San Joaquin Valley 

APCD) 

Not applicable 

X Alaska ........................ Grant Grant 

Washington ................ Grant (for state) and 

SIP call (new for 

Energy Facility Site 

Evaluation Council and 

new for Southwest 

Clean Air Agency) 

Grant (for state) and 

SIP call (new for 

Energy Facility Site 

Evaluation Council 

and new for 

Southwest Clean Air 

Agency) 

a The proposed action under the SNPR is the same action as proposed in February 2013 

unless noted in this table to be either new or a change. The entry “SIP call” indicates 

that the affirmative defense provision was identified by the EPA independently and 

was not included in the Petition. 

For each state for which the proposed action in this SNPR is either “Grant” or 

“SIP call,” the EPA proposes to find that specific affirmative defense provisions in the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 24 of 159 

state’s SIP are substantially inadequate to meet CAA requirements for the reason that 

these provisions are inconsistent with the CAA. 

For each state for which the proposed action on the Petition is either “Grant” or 

“SIP call,” the EPA is further proposing in this SNPR to call for a SIP revision as 

necessary to remove the identified affirmative defense provisions from the SIP at issue. 

The EPA’s revised proposal under this SNPR concerning affirmative defense provisions 

in specific states’ SIPs is summarized in section VII of this SNPR. 

The SIP calls proposed in this SNPR apply only to those specific provisions, and 

the scope of each of the SIP calls would be limited to those provisions. This SNPR 

proposes SIP calls specific to affirmative defense provisions in 17 states. The 17 states 

include two states for which we are newly proposing SIP calls: California and Texas. For 

the remaining 15 states, we already proposed SIP calls in the February 2013 proposal 

notice for one or more SSM-related provisions, although in this SNPR we are in some 

cases proposing SIP calls for additional affirmative defense provisions and in some cases 

proposing SIP calls on a basis that has changed from that of our earlier proposal. 

For Jefferson County, Kentucky, the affirmative defense provisions for which we 

proposed in February 2013 to grant the Petition were subsequently removed from the 

SIP.4

 Thus, under this SNPR we are proposing instead to deny the Petition, and we are no 

longer proposing a SIP call with respect to affirmative defense provisions for this area 

 

4 See, Approval and Promulgation of Implementation Plans; Kentucky; Approval of 

Revisions to the Jefferson County Portion of the Kentucky SIP; Emissions During 

Startups, Shutdowns, and Malfunctions, 79 FR 33101 (June 10, 2014). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 25 of 159 

because the revision has already been made by the state and approved into the SIP by the 

EPA. Note, however, that we already proposed a SIP call for Kentucky, for other 

provisions (i.e., provisions not concerning affirmative defenses in Jefferson County), and 

this SNPR does not change what we proposed in the February 2013 proposal notice for 

the other Kentucky SIP provisions. 

C. What is the EPA proposing for any state that receives a finding of substantial 

inadequacy and a SIP call? 

If the EPA finalizes a finding of substantial inadequacy and issues a SIP call for 

any state, the EPA’s final action will establish a deadline by which the state must make a 

SIP submission to rectify the deficiency. Pursuant to CAA section 110(k)(5), the EPA has 

authority to set a SIP submission deadline that does not exceed 18 months from the date 

the Agency notifies the state of the inadequacy. The EPA intends to disseminate notice of 

any final findings of substantial inadequacy and the issuance of any SIP call promptly 

after the Administrator signs the final notice. 

The EPA has already proposed to provide the full 18-month period permissible by 

statute to give states sufficient time to make appropriate SIP revisions following their 

own SIP development process. Such a schedule will allow for the necessary SIP 

development process to correct the deficiencies yet still achieve the necessary SIP 

improvements as expeditiously as practicable. 

Accordingly, the EPA is proposing to establish the due date for the state to 

respond to the SIP call to be 18 months after the date on which the Administrator signs 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 26 of 159 

the notice and disseminates it to the states. If, for example, the EPA’s final findings are 

signed and disseminated in May 2015, then the SIP submission deadline for each of the 

states subject to the final SIP call would fall 18 months later, in November 2016. 

Thereafter, the EPA will review the adequacy of that new SIP submission in accordance 

with the CAA requirements of sections 110(a), 110(k), 110(l) and 193, including the 

EPA’s interpretation of the CAA reflected in the SSM Policy as clarified and updated 

through this rulemaking, in notice-and-comment rulemaking on the individual SIP 

submissions. 

D. What are potential impacts on affected states and sources? 

The EPA’s February 2013 proposal notice included an explanation of the 

potential impacts on states and sources of the SIP calls proposed in that notice. That 

explanation is repeated here, with additions to encompass and highlight the potential 

impacts of the proposed further revision of the SSM Policy to disallow affirmative 

defense provisions for malfunctions, the proposed revisions to the earlier-proposed SIP 

calls and the additional SIP calls proposed in this notice. The issuance of a SIP call would 

require an affected state to take one or more actions to revise its SIP. These actions are 

described below, followed by a description of how those actions by the state may, in turn, 

affect sources. The states that would receive a SIP call will in general have options as to 

exactly how to revise their SIPs. In response to a SIP call, a state retains broad discretion 

concerning how to revise its SIP, so long as that revision is consistent with the 

requirements of the CAA as those requirements will be interpreted in the Federal 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 27 of 159 

Register notice for the final action in this rulemaking. 

If the final SIP call identifies an automatic exemption provision in a SIP, that 

provision would have to be removed entirely and an affected source could no longer 

depend on the exemption to avoid all liability for excess emissions. If the final SIP call 

identifies an affirmative defense provision, that provision would have to be removed 

entirely and an affected source could no longer depend on the provision to shield it from 

monetary penalties assessed by a court for excess emissions; however, a court may 

nevertheless decide not to assess monetary penalties in light of the effort by the source to 

avoid and/or minimize the excess emissions. Some other provisions, for example a 

problematic enforcement discretion provision, could be either removed entirely from the 

SIP or retained if revised appropriately in accordance with the EPA’s interpretation of the 

CAA as described in the EPA’s SSM Policy restatement in the Federal Register notice 

for the final rulemaking. The EPA notes that if a state removes a SIP-called provision that 

pertains to the exercise of enforcement discretion rather than amending the provision to 

remove any implication that the provision limits EPA or citizen suits, this removal would 

not bar the ability of the state to apply discretion in its own enforcement program but 

rather would make the exercise of such discretion case-by-case in nature. 

In addition, affected states may choose to consider reassessing particular emission 

limitations, for example to determine whether those limits can be revised such that wellmanaged emissions during planned operations such as startup and shutdown would not 

exceed the revised emission limitation, while still protecting air quality. Such a revision 

Commented [A1]: Can we please check with EPA OGC 

that this is how we should be wording this? Is it in the 

“Notice” per se, or rather the policy that is described? In the 

past there has been litigation on whether the preamble 

language carries binding legal effect –I’m not sure what EPA 

OGC’s current position is on this, but how we phrase this 

language will matter. 

Commented [A2]: Identifies it as contrary to the CAA 

under the recent DC Circuit opinion? This sentence is a 

little vague, not sure from the language here what the point 

of indentifying a particular provision would be. This whole 

sentence is really long, dense and hard to follow. Consider 

breaking it up for clarity. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 28 of 159 

of an emission limitation may need to be submitted as a SIP revision for EPA approval if 

the existing limit to be changed is already included in the SIP or if the existing SIP relies 

on the particular existing emission limit to meet a CAA requirement. In such instances, 

the EPA would review the SIP revision for consistency with all applicable CAA 

requirements. A state that chooses to revise particular emission limitations, in addition to 

removing the aspect of the existing provision that is inconsistent with CAA requirements, 

could include those revisions in the same SIP submission that addresses the SSM 

provisions identified in the SIP call, or it could submit them separately. 

The implications for a regulated source in a given state, in terms of whether and 

howdecisions it would potentially havemay make to, or would choose to, change its 

equipment or practices in order to operate with emissions that comply with the revised 

SIP, will depend on the nature and frequency of the source’s SSM events and how the 

state has chosen to revise the SIP to address excess emissions during SSM events. The 

EPA recognizes that after all the responsive SIP revisions are in place and are being 

implemented by the states, some sources may need be required by the state to, or may 

have strong business reasons to, modify their physical equipment or operating practices. 

These changes could be aimed at improving the effectiveness of the emission control 

systems when operating as designed during startup and shutdown, increasing the 

durability of components to reduce the occurrence of malfunctions, and/or improving 

monitoring systems to detect and manage malfunctions promptly. If a state merely 

removes an exemption, affirmative defense provision, or impermissible enforcement 

Commented [A3]: Suggested edit for clarity 

Commented [A4]: Suggested edit for clarity 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 29 of 159 

discretion provision, an affected source may need to, or may rationally choose to, make 

changes of these types to better control emissions so as to comply with existing emission 

limits continuously and thereby reduce the risk of enforcement action. If the state 

establishes alternative emission limits for startup and shutdown operation, the source will 

need to meet these limits, but the required changes by the source, if any, could be less 

extensive and cost less. 

Because of the diversity of the SIP provisions identified in our February 2013 

proposal notice and in this supplemental proposal, the diversity of potentially affected 

sources, the unknown nature of the states’ responses to the SIP calls, and the fact that 

because of existing automatic exemptions many instances of excess emissions have not 

routinely been reported to air agencies or the EPA, the EPA is unable to estimate the 

number, nature and overall cost of the changes that emission sources may ultimately 

make as an indirect result of the proposed SIP calls. To date, the EPA’s review of the 

public comments received on the February 2013 proposal indicates that the information 

in those public comments will notis insufficient to allow the EPA to make such estimates. 

This supplemental proposal concerns only affirmative defense provisions. The 

EPA’s interpretation of the CAA as reflected in the existing SSM Policy does not allow a 

SIP to contain a director’s discretion provision for excess emissions during SSM events 

including malfunctions, an automatic exemption for excess emissions during SSM events 

including malfunctions, or an enforcement discretion provision that purports to restrict 

citizen suits or federal personnel. In our February 2013 proposal notice, we proposed to 

Commented [A5]: Edit for precision 

Commented [A6]: Does EPA mean in the proposed Policy 

restatement? Suggest revision to ensure that it does not 

appear as if EPA has already made a decision on other parts 

of the SSM Policy that was proposed in February. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 30 of 159 

interpret the CAA to disallow affirmative defense provisions applicable to startup and 

shutdown, and in this SNPR we are proposing to interpret the CAA to further disallow 

affirmative defense provisions applicable to malfunctions. However, a state that receives 

a SIP call that includes a requirement to remove an affirmative defense for excess 

emissions would retain its ability to apply discretion in its enforcement program. Such 

enforcement discretion could be exercised case-by-case, or the SIP may include a 

provision that directs state personnel in the exercise of enforcement discretion. The 

criteria in an enforcement discretion provision could resemble the criteria previously 

recommended by the EPA for an affirmative defense provision for malfunctions. The 

enforcement discretion provision cannot apply to anyone other than state personnel. For 

example, the enforcement decisions of state personnel cannot define what is or is not a 

violation and cannot purport to limit or bar the exercise of enforcement discretion by the 

EPA or other parties pursuant to the citizen suit provision. An affected state could include 

an appropriate enforcement discretion provision in the same SIP submission that 

addresses the SSM provisions identified in the SIP call, or it could submit it separately. 

Similar to the dependent nature of the potential impacts of our proposals in the 

aggregate as described above, the implications of the specific change being proposed in 

this notice—to disallow affirmative defense provisions for malfunctions—for a regulated 

source in a given state, in terms of whether and how the source would potentially have 

incentives to change its equipment or practices, will depend on the nature and frequency 

of the source’s malfunction events and on how the state has chosen to revise the SIP to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 31 of 159 

address excess emissions during malfunction events. After responsive SIP revisions are in 

place and are being implemented by the states, some sources may have strong incentives 

to take steps to increase the durability of components and monitoring systems to detect 

and manage malfunctions promptly, as a court may take such steps into consideration 

when determining a remedy should there be an enforcement action against excess 

emissions that have occurred during a malfunction. For the same reasons as cited above, 

the EPA is unable to estimate the number, nature and overall cost of the changes that 

emission sources may ultimately make as an indirect result of the revised and additional 

SIP calls proposed in this SNPR. 

The EPA Regional Offices will work with states to help them understand their 

options and the potential consequences for sources as the states prepare their SIP 

revisions in response to the SIP calls. 

The EPA believes that among the impacts on states and their residents of the SIP 

calls proposed in the February 2013 proposal notice and in this SNPR will be reduced 

aggregate emissions from industrial sources and improved air quality. For the same 

reasons that we are unable to estimate the number, nature and overall cost of the changes 

that sources may ultimately make as an indirect result of the proposed SIP calls, we are 

unable to estimate the total emission reduction that will be achieved for any particular 

pollutant or how those reductions will be distributed across the affected states and 

communities. The EPA believes that it is obligated and authorized to issue the proposed 

SIP calls to remove affirmative defense provisions even though the EPA is unable to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 32 of 159 

estimate the number, nature, cost and resulting emission reductions that will indirectly 

result from the removal of such provisions from the affected SIPs. 

III. Background for This SNPR 

A. What did the Petitioner request? 

The Petitioner submitted the Petition to the EPA on June 30, 2011. In the Petition, 

the Petitioner requested that the EPA address various types of alleged deficiencies in the 

Agency’s SSM Policy. The SSM Policy provides EPA guidance to states with respect to 

SIP provisions that apply to excess emissions from sources that occur during SSM events. 

As described in the February 2013 proposal notice, the Petitioner included three 

interrelated overarching requests concerning the treatment in SIPs of excess emissions 

from sources during SSM events. In addition, the Petitioner requested that the EPA 

evaluate specifically identified existing provisions in the SIPs of 39 states that the 

Petitioner alleged are inconsistent with CAA requirements and with the EPA’s 

interpretations of the CAA in the SSM Policy. The Petitioner identified the specific 

provisions and explained the basis for its belief that the provisions in question violate one 

or more requirements of the CAA. 

First, the Petitioner argued that any SIP provision providing an affirmative 

defense for monetary penalties for excess emissions applicable in judicial proceedings is 

contrary to the CAA. The Petitioner based its overarching arguments concerning the 

legality of affirmative defense provisions in SIPs upon the explicit statutory provisions of 

CAA sections 113 and 304. Thus, the Petitioner advocated that the EPA should rescind 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 33 of 159 

its interpretation of the CAA expressed in the SSM Policy that allows appropriately 

drawn affirmative defense provisions in SIPs. The Petitioner made no distinction between 

affirmative defenses for excess emissions related to malfunction and affirmative defenses 

for excess emissions related to startup or shutdown. See section IV of our February 2013 

proposal notice for the EPA’s proposed response at that time concerning the issue of 

affirmative defense provisions in SIPs. As explained in section III.B of this SNPR, the 

EPA did make such distinction in its proposed response in the February 2013 proposal 

notice, then reasoning that affirmative defense provisions were appropriate for violations 

due to malfunction events. The issue of affirmative defense provisions in SIPs is the 

focus of this SNPR, and the EPA is herein proposing to revise its prior proposed action 

on this issue. 

Second, the Petitioner argued that many existing SIPs contain impermissible 

provisions,5

 including automatic exemptions from applicable emission limitations during 

SSM events, director’s discretion provisions that provide discretionary exemptions from 

applicable emission limitations during SSM events, enforcement discretion provisions 

that appear to bar enforcement by the EPA or citizens for such excess emissions, and 

inappropriate affirmative defense provisions that are not consistent with the CAA or the 

recommendations in the EPA’s SSM Policy. The Petitioner identified specific provisions 

 

5

 The term “impermissible provision” as used throughout this SNPR is generally intended 

to refer to a SIP provision that the EPA believes to be inconsistent with requirements of 

the CAA. As described later in this SNPR (see section VII.A), the EPA is proposing to 

find a SIP “substantially inadequate” to meet CAA requirements where the EPA 

determines that a specific SIP provision is impermissible under the CAA. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 34 of 159 

in SIPs of 39 states that it considered inconsistent with the CAA and explained the basis 

for its objections to the provisions. Among the alleged deficient provisions were many 

that function as affirmative defense provisions, regardless of whether that specific term is 

used in the state law or regulation at issue and regardless of whether the EPA previously 

explicitly evaluated the provision as an affirmative defense as described in the 1999 SSM 

Guidance. See section V and section IX of our February 2013 proposal notice for the 

EPA’s prior proposed responses concerning the various alleged SIP deficiencies; only 

issues related to affirmative defense provisions are addressed in this SNPR, and the EPA 

is proposing to revise its prior proposed action only with respect to specific affirmative 

defense SIP provisions. 

Third, the Petitioner argued that the EPA should not rely on interpretive letters 

from states to resolve any ambiguity, or perceived ambiguity, in state regulatory 

provisions in SIP submissions. The Petitioner reasoned that all regulatory provisions 

should be clear and unambiguous on their face and that any reliance on interpretive letters 

to alleviate facial ambiguity in SIP provisions can lead to later problems with compliance 

and enforcement. Extrapolating from several instances in which the basis for the original 

approval of a SIP provision related to excess emissions during SSM events was arguably 

not clear, the Petitioner contended that the EPA should never use interpretive letters to 

resolve such ambiguities. See section VI of our February 2013 proposal notice for the 

EPA’s proposed response concerning the issue of interpretive letters; that issue is not 

further addressed in this SNPR and the EPA is seeking no additional comment on this 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 35 of 159 

issue. 

Among the fundamental concerns raised by the Petitioner was the claim that the 

EPA’s SSM Policy is inconsistent with statutory requirements because the Agency 

interprets the CAA to authorize states to create SIP provisions that provide an affirmative 

defense for qualifying sources to assert in the event of violations for excess emissions 

that occur during SSM events. Even though the EPA interpreted the CAA to allow 

narrowly drawn affirmative provisions in SIPs that are consistent with recommended 

criteria intended to assure that states include appropriate limitations and conditions for 

affirmative defenses, the Petitioner objected to any such provisions. The Petitioner 

argued that any affirmative defense that purports to eliminate or alter the jurisdiction of 

federal courts to assess monetary penalties or any other form of relief for violations of 

SIP emission limits is contrary to the requirements of the CAA. In other words, no matter 

how narrowly drawn and no matter what the limitations or conditions for the affirmative 

defense may be, the Petitioner argued that no such affirmative defenses are consistent 

with CAA requirements for SIP provisions. 

In addition, the Petitioner identified specific existing provisions in the SIPs of 14 

states that were structured or characterized as affirmative defenses, regardless of whether 

the provisions in question were consistent with the EPA’s SSM Policy as explained in the 

1999 SSM Guidance. The Petitioner contended that none of these identified provisions 

are consistent with CAA requirements because they improperly purport to shield sources 

from liability for violations of SIP emission limitations through various mechanisms. The 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 36 of 159 

Petitioner argued that such provisions are therefore inconsistent with sections 113 and 

304 and the fundamental enforcement structure of the CAA created by Congress. Even if 

the provisions were not otherwise contrary to CAA requirements, the Petitioner argued, 

each of the identified affirmative defense provisions is also inconsistent in one or more 

ways with the EPA’s own interpretation of the CAA provided in the 1999 SSM 

Guidance. For example, some of the identified provisions do not apply only to monetary 

penalties and purport to bar injunctive relief as well, some of the provisions do not 

require sources to qualify for an affirmative defense through criteria comparable to those 

recommended by the EPA, and some of the provisions appear to make state personnel the 

unilateral final arbiters of whether a source qualified for an affirmative defense rather 

than requiring that this be determined by a trier of fact in a judicial enforcement 

proceeding, thereby purporting to preclude enforcement by the EPA under section 113 or 

by others pursuant to the citizen suit authority of section 304. 

B. What did the EPA previously propose in this rulemaking with respect to 

affirmative defense provisions in SIPs? 

The EPA published its proposed response to the Petition on February 22, 2013. In 

that proposal, the EPA explained the claims asserted by the Petitioner, articulated its 

evaluation of those claims, and proposed to take actions with respect to each of the 

overarching and specific claims. The proposal addressed a number of interrelated issues 

concerning the proper treatment of excess emissions during SSM events in SIP 

provisions. A key component of the proposal, however, was the EPA’s evaluation of the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 37 of 159 

Petitioner’s claims concerning affirmative defense provisions in SIPs. 

With respect to the Petitioner’s overarching claim that the EPA’s interpretation of 

the CAA in the SSM Policy permitting states to have affirmative defenses in SIP 

provisions is in error, the EPA proposed to deny in part and to grant in part. The EPA 

proposed to deny the Petitioner’s claim with respect to affirmative defenses applicable to 

malfunction events, on the theory that the CAA allows such provisions so long as they 

are sufficiently narrowly drawn. The EPA reasoned that such provisions are appropriate 

for violations due to genuine malfunction events, in order to resolve the inherent tension 

between the fact that the CAA requires that SIP emission limitations must apply 

continuously and the fact that even properly designed, maintained and operated sources 

may sometimes have difficulty meeting emission limitations for reasons beyond their 

control. By contrast, the EPA proposed to grant the Petitioner’s claim with respect to 

affirmative defenses applicable to planned events such as startup and shutdown. This was 

a change from the EPA’s interpretation of the CAA in the 1999 SSM Guidance, in which 

the EPA previously recommended that states could elect to create such affirmative 

defense provisions for startup and shutdown events, so long as the provisions were 

narrowly drawn and consistent with the recommended criteria to assure that they meet 

CAA requirements. The EPA’s evaluation of the Petition and the statutory basis for 

affirmative defense provisions caused the Agency to reconsider the appropriateness of 

affirmative defense provisions applicable during startup and shutdown, which are 

ordinary modes of operation that are generally predictable and within the control of the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 38 of 159 

source. As explained in more detail in the February 2013 proposal notice, the EPA’s 

evaluation in light of then recent case law indicated that providing affirmative defenses 

applicable during planned events such as startup and shutdown was not consistent with 

the EPA’s interpretation of the CAA to support such provisions for malfunctions and was 

tantamount to allowing sources to be shielded from monetary penalties for violations due 

to conduct that is predictable and within their control.6

 

With respect to the specific affirmative defense provisions identified by the 

Petitioner as deficient, the EPA evaluated each of the provisions to determine whether 

they were consistent with the EPA’s interpretation of the CAA concerning such 

provisions at the time. This evaluation included examination of the specific provisions in 

light of the EPA’s interpretations of the CAA and recommendations in the 1999 SSM 

Guidance, as updated in the February 2013 proposal notice (e.g., the revision to the 

EPA’s guidance concerning affirmative defenses for single sources with the potential to 

cause exceedances of the NAAQS). As a result, the EPA proposed to deny the Petition 

with respect to the claims concerning affirmative defense provisions to the extent 

applicable to malfunction events in three jurisdictions: (i) Arizona; (ii) Maricopa County, 

 

6

 Some commenters on the February 2013 proposal notice focused great attention on 

whether startup and shutdown are modes of “normal” source operation. The EPA 

assumes that every source is designed, maintained and operated with the expectation it 

will at least occasionally start up and shut down, and thus these modes of source 

operation are “normal” in the sense that they are to be expected. The EPA used this term 

in the ordinary sense of the word to distinguish between such predictable modes of source 

operation and genuine “malfunctions,” which are by definition supposed to be 

unpredictable and unforeseen events and which could not have been precluded by proper 

source design, maintenance and operation. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 39 of 159 

Arizona; and (iii) Colorado. The EPA proposed to deny the Petition with respect to these 

affirmative defense provisions to the extent applicable to malfunction events because at 

that time the EPA believed them to be consistent with the CAA and EPA guidance in the 

1999 SSM Policy. The EPA proposed to grant the Petition with respect to the claims 

concerning affirmative defense provisions in the following jurisdictions: (i) Alaska; (ii) 

Arizona (affirmative defense for startup and shutdown only); (iii) Maricopa County, 

Arizona (affirmative defense for startup and shutdown only); (iv) Arkansas; (v) Colorado 

(affirmative defense for startup and shutdown only); (vi) District of Columbia; (vii) 

Illinois; (viii) Indiana; (ix) Jefferson County, Kentucky;7

 (x) Michigan; (xi) Mississippi; 

(xii) New Mexico; (xiii) Virginia; and (xiv) Washington. The EPA’s evaluation of the 

specific provisions in these states identified a variety of deficiencies as explained in more 

detail in section IX of the February 2013 proposal notice. In general, the EPA considered 

these provisions deficient because they extended not only to monetary penalties but also 

to injunctive relief, because they had insufficient criteria to assure that they were 

sufficiently narrowly drawn, because they extended to events that were not malfunctions, 

or because of some combination of these concerns. 

C. What events necessitated this SNPR? 

 

7

 The EPA notes that the state of Kentucky has now revised the SIP provisions applicable 

to Jefferson County (Louisville) and eliminated the SIP inadequacies identified in the 

February 2013 proposal notice. The EPA has already approved the necessary SIP 

revisions. See 79 FR 33101 (June 10, 2014). Accordingly, the EPA’s final action on the 

Petition will not need to include a finding of substantial inadequacy and SIP call for 

Jefferson County, Kentucky. The recently approved revision did not create an affirmative 

defense provision, so there is no need to readdress this issue in this jurisdiction. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 40 of 159 

Subsequent to EPA’s issuance of the February 2013 proposal, a federal court 

ruled that CAA sections 113 and 304 preclude EPA authority to create affirmative 

defense provisions in the Agency’s own regulations imposing emission limits on sources, 

because such provisions purport to alter the jurisdiction of federal courts to assess 

liability and impose penalties for violations of those limits in private civil enforcement 

cases. The U.S. Court of Appeals for the District of Columbia Circuit issued that decision 

in NRDC v. EPA on April 18, 2014.8

 The EPA believes that the reasoning of the court in 

that decision indicates that the states, like the EPA, have no authority in SIP provisions to 

alter the jurisdiction of federal courts to assess penalties for violations of CAA 

requirements through affirmative defense provisions. If states lack authority under the 

CAA to alter the jurisdiction of the federal courts through affirmative defense provisions 

in SIPs, then the EPA lacks authority to approve any such provision in a SIP. 

The court’s decision in NRDC v. EPA9

 pertained to a challenge to the EPA’s 

National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations issued 

pursuant to CAA section 112 to regulate hazardous air pollutants from sources that 

manufacture Portland cement.10 In addition to imposing specific emission limitations for 

the relevant pollutants from the affected sources, the EPA also created an affirmative 

defense that sources could assert in judicial enforcement proceedings for violations due to 

 

8 See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). 9 Id. 10 The NESHAP promulgated after the 1990 CAA Amendments are also referred to as 

“maximum achievable control technology” or “MACT” standards. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 41 of 159 

excess emissions that occur during qualifying malfunction events. The affirmative 

defense provision in the Portland cement NESHAP required the source to prove, by a 

preponderance of the evidence in an enforcement proceeding, that the source met specific 

criteria concerning the nature of the event and the source’s conduct before, during and 

after the event. The EPA notes that these specific criteria required to establish the 

affirmative defense in the Portland cement NESHAP are functionally the same as the 

criteria that the EPA previously recommended to states for SIP provisions in the 1999 

SSM Guidance and that the EPA explicitly repeated these same recommended criteria to 

states in the February 2013 proposal notice. In addition, the EPA provided sample 

regulatory text in the February 2013 proposal notice drawn from a comparable NESHAP 

that the EPA recently promulgated for another source category, to illustrate how states 

might elect to word appropriate affirmative defense provisions in SIPs.11 In other words, 

the affirmative defense provision at issue in the NRDC v. EPA case was essentially 

equivalent to the type of provision, both conceptually and in terms of specific regulatory 

language, which the EPA would previously have considered consistent with CAA 

requirements for affirmative defense provisions for malfunction events in SIPs. 

The EPA believes that the opinion of the court in NRDC v. EPA has significant 

impacts on the Agency’s SSM Policy and on the positions that the EPA took in the 

February 2013 proposal notice with respect to issues related to affirmative defenses. 

Section IV of the February 2013 proposal notice describes in detail the EPA’s prior 

 

11 See February 2013 proposal notice, 78 FR 12459 at 12478-80. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 42 of 159 

evaluation of the Petition with respect to the overarching issue of affirmative defense 

provisions in SIPs. In general, the EPA proposed: (i) to deny the request to rescind the 

SSM Policy with respect to interpreting the CAA to allow states to elect to include 

appropriately tailored affirmative defense provisions for violations due to excess 

emissions during periods of malfunction; and (ii) to grant the request to rescind the SSM 

Policy with respect to affirmative defense provisions for violations due to excess 

emissions during periods of startup and shutdown. Consistent with this interpretation of 

the CAA, the EPA previously proposed to revise its SSM Policy to clarify that states 

could elect to create affirmative defenses in SIP provisions only for malfunction events, 

and so long as such provisions were narrowly drawn, as recommended in the EPA’s 

guidance. Even these more narrowly defined affirmative defense provisions are no longer 

consistent with CAA requirements under the reasoning adopted by the court in NRDC v. 

EPA. 

In addition, section IX of the February 2013 proposal notice provided the EPA’s 

evaluation of each of the specific SIP provisions identified by the Petitioner and proposed 

to take action on them, in accordance with EPA’s interpretation of the CAA for such 

provisions at that time. These SIP provisions included affirmative defense provisions of 

various types, including some that the Agency had previously approved as consistent 

with its interpretation of the CAA in the 1999 SSM Guidance. The EPA evaluated these 

provisions on a case-by-case basis and proposed either to grant or to deny the Petition 

with respect to each provision, consistent with the EPA’s then current interpretation of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 43 of 159 

the CAA for such provisions. 

The recent decision by the U.S. Court of Appeals for the District of Columbia 

Circuit in NRDC v. EPA has called into question the legal basis for affirmative defense 

provisions applicable to violations of CAA requirements. The reasoning used by that 

court, as logically extended to SIP provisions, indicates that neither states nor the EPA 

have authority to alter either the rights of other parties to seek relief or the jurisdiction of 

the federal courts to impose relief for violations of CAA requirements in SIPs, including 

the courts’ power to restrain violations, to require compliance, and to assess monetary 

penalties for any violations in accordance with factors provided in CAA section 

113(e)(1). 

The EPA acknowledges that its SSM Policy since the 1999 SSM Guidance has 

interpreted the CAA in such a way that states could in effect alter the jurisdiction of 

federal courts to assess monetary penalties under certain conditions through creation of 

affirmative defenses. In other words, even though Congress explicitly empowered federal 

courts to assess monetary penalties for a CAA violation, an affirmative defense could, 

contrary to the statute, limit the ability of a court to do so. The EPA believes that the 

court’s decision in NRDC v. EPA compels the Agency to reevaluate its interpretation of 

the CAA and its proposed action on the Petition concerning affirmative defense 

provisions in SIPs. As a result, in this SNPR we are revising what we previously 

proposed as our response to the Petition, but only to the extent relevant to the issue of 

affirmative defense provisions in SIPs. In section III.C of this SNPR, the EPA explains in 

Commented [A7]: Very helpful edit, thanks. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 44 of 159 

detail why the court’s interpretation of relevant CAA provisions indicates that states do 

not have authority to create, and thus the EPA does not have authority to approve, SIP 

provisions that include an affirmative defense that would operate to alter the jurisdiction 

of federal courts to assess penalties or other forms of relief authorized in sections 113 and 

304. In section VII of this SNPR, the EPA explains how the decision affects the February 

2013 proposal with respect to specific provisions in the SIPs of particular states. In 

section VII of this SNPR, the EPA also includes affirmative defense provisions found in 

six states’ SIPs that the Agency has identified independently, and the EPA explains why 

each of these additional provisions fails to meet CAA requirements and thus necessitates 

a finding of substantial inadequacy and a SIP call as well. The EPA is including the 

additional provisions to assure that it provides comprehensive guidance with respect to 

this issue to all states and to alleviate confusion that may arise as a result of recent 

regulatory actions and litigation concerning affirmative defense provisions. 

IV. What is the EPA proposing through this SNPR in response to the Petitioner’s 

request for rescission of the EPA policy on affirmative defense provisions? 

A. Petitioner’s Request 

The February 2013 proposal notice explained in detail the Petitioner’s claims with 

respect to affirmative defense provisions in SIPs, but it is helpful to repeat the full 

argument here in order to explain the reasons for the EPA’s revised proposal in this 

SNPR. Understanding those specific claims in light of the court’s decision in the NRDC 

v. EPA decision serves to illustrate the need for the EPA to reexamine the statutory basis 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 45 of 159 

for any affirmative defense in SIP provisions, not merely those provisions limited to 

malfunction events or to those for malfunction events that are sufficiently narrowly 

drawn to be consistent with the EPA’s prior interpretation of the CAA in the 1999 SSM 

Guidance. 

The Petitioner’s first request was for the EPA to rescind its SSM Policy element 

interpreting the CAA to allow affirmative defense provisions in SIPs for excess emissions 

during SSM events.12 The Petitioner also asked the EPA: (i) to find that SIPs containing 

an affirmative defense to monetary penalties for excess emissions during SSM events are 

substantially inadequate because they do not comply with the CAA; and (ii) to issue a 

SIP call pursuant to CAA section 110(k)(5) to require each such state to revise its SIP.13

Alternatively, if the EPA denies these two related requests, the Petitioner requested the 

EPA: (i) to require states with SIPs that contain such affirmative defense provisions to 

revise them so that they are consistent with the EPA’s 1999 SSM Guidance for excess 

emissions during SSM events; and (ii) to issue a SIP call pursuant to CAA section 

110(k)(5) to states with provisions inconsistent with the EPA’s interpretation of the 

CAA.14 The EPA interpreted this latter request to refer to the specific SIP provisions that 

the Petitioner identified in a separate section of the Petition, titled, “Analysis of 

Individual States’ SSM Provisions,” including specific existing affirmative defense 

provisions. 

 

12 Petition at 11. 

13 Id. 14 Petition at 12. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 46 of 159 

The Petitioner requested that the EPA rescind its SSM Policy element interpreting 

the CAA to allow SIPs to include affirmative defenses for violations due to excess 

emissions during any type of SSM events because the Petitioner contended there is no 

legal basis for the policy. Specifically, the Petitioner cited to two statutory grounds, CAA 

sections 113(b) and (e), related to the type of judicial relief available in an enforcement 

proceeding and to the factors relevant to the scope and availability of such relief, that the 

Petitioner claimed would bar the approval of any type of affirmative defense provision in 

SIPs. 

In the Petitioner’s view, the CAA “unambiguously grants jurisdiction to the 

district courts to determine penalties that should be assessed in an enforcement action 

involving the violation of an emissions limit.”15 The Petitioner first argued that in any 

judicial enforcement action in the district court, CAA section 113(b) provides that “such 

court shall have jurisdiction to restrain such violation, to require compliance, to assess 

such penalty, . . . and to award any other appropriate relief.” In addition, the Petitioner 

cited the provisions of CAA section 304(a), which specifically pertain to citizen suit 

enforcement and which reiterate that the federal courts have jurisdiction to assess 

monetary penalties for violations as well as to impose other remedies.16 The Petitioner 

reasoned that the EPA’s SSM Policy is therefore fundamentally inconsistent with the 

 

15 Petition at 10. 

16 Petition at 11. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 47 of 159 

CAA because it purports to remove the discretion and authority of the federal courts to 

assess monetary penalties for violations if a source is shielded from monetary penalties 

under an affirmative defense provision in the approved SIP.17 The Petitioner concluded 

that the EPA’s interpretation of the CAA in the SSM Policy element allowing any 

affirmative defenses is impermissible “because the inclusion of an affirmative defense 

provision in a SIP limits the courts’ discretion—granted by Congress—to assess penalties 

for Clean Air Act violations.”18 

Second, in reliance on CAA section 113(e)(1), the Petitioner argued that in a 

judicial enforcement action in a district court, the statute explicitly specifies a list of 

factors that the court is to consider in assessing penalties.19 That section provides that 

either the Administrator or the court: 

...shall take into consideration (in addition to such other factors as justice 

may require) the size of the business, the economic impact of the penalty 

on the business, the violator’s full compliance history and good faith 

efforts to comply, the duration of the violation as established by any 

credible evidence (including evidence other than the applicable test 

method), payment by the violator of penalties previously assessed for the 

same violation, the economic benefit of noncompliance, and the 

seriousness of the violation. 

The Petitioner argued that the EPA’s SSM Policy authorizes states to create 

affirmative defense provisions with criteria for monetary penalties that are inconsistent 

with the factors that the statute specifies and that the statute explicitly directs courts to 

 

17 Id. 18 Id. 19 Id. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 48 of 159 

weigh in any judicial enforcement action. In particular, the Petitioner enumerated those 

factors that it alleges the EPA’s SSM Policy totally omits: (i) the size of the business; (ii) 

the economic impact of the penalty on the business; (iii) the violator’s full compliance 

history; (iv) the economic benefit of noncompliance; and (v) the seriousness of the 

violation. By specifying particular factors for courts to consider, the Petitioner reasoned, 

Congress has already definitively spoken to the question of what factors are germane in 

assessing monetary penalties under the CAA for violations. The Petitioner concluded that 

the EPA has no authority to allow a state to include an affirmative defense provision in a 

SIP with different criteria to be considered in awarding monetary penalties because 

“[p]reventing the district courts from considering these statutory factors is not a 

permissible interpretation of the Clean Air Act.”20 The Petitioner drew no distinction 

between affirmative defenses for unplanned events such as malfunctions and planned 

events such as startup and shutdown. 

B. The EPA’s Proposed Revised Response 

As a preliminary matter, the EPA acknowledges that its interpretation of the CAA 

in its SSM Policy, since issuance of the 1999 SSM Guidance, has been that states may 

elect to have narrowly drawn affirmative defense provisions in SIPs, so long as they meet 

certain requirements (e.g., that they only apply to monetary penalties and not to 

injunctive relief). The EPA’s longstanding guidance has also provided very specific 

recommendations to states concerning how to develop affirmative defense provisions that 

 

20 Id. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 49 of 159 

would be consistent with CAA requirements (e.g., such provisions should require sources 

to prove in an enforcement proceeding that the violations are not so repetitive as to 

indicate that the source is improperly designed, maintained or operated). The EPA further 

acknowledges that it has previously approved affirmative defense provisions in SIPs or, 

when appropriate, promulgated affirmative defenses in federal implementation plans 

(FIPs). Indeed, the EPA’s approval of affirmative defense provisions in SIPs or 

promulgation of such provisions in FIPs has been upheld by courts in several decisions.21 

Most significantly, the EPA’s November 2010 approval of an affirmative defense 

applicable to “unplanned events” (i.e., malfunctions) and disapproval of an affirmative 

defense applicable to “planned events” (e.g., planned startup and shutdown) in a Texas 

SIP submission were challenged by numerous parties. In 2012, the U.S. Court of Appeals 

for the 5th Circuit upheld EPA’s actions, including both the Agency’s approval and 

disapproval of the affirmative defense provisions applicable to the respective types of 

events.22 In that litigation, the EPA defended its approval and disapproval actions, 

including the filing of an opposition to a petition for certiorari filed by industry 

 

21 See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2012) (upholding the 

EPA’s approval of an affirmative defense applicable during malfunctions in a SIP 

submission as a permissible interpretation of the statute under Chevron step 2 analysis), 

cert. denied, 134 S.Ct. 387 (2013); Mont. Sulphur & Chemical Co. v. EPA, 666 F.3d 

1174, 1191-93 (9th Cir. 2012) (upholding the EPA’s creation of an affirmative defense 

applicable during malfunctions in a FIP); Ariz. Public Service Co. v. EPA, 562 F.3d 1116, 

1130 (9th Cir. 2009) (upholding the EPA’s creation of an affirmative defense applicable 

during malfunctions in a FIP). 

22 Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2012), cert. denied, 134 S.Ct. 

387 (2013). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 50 of 159 

challengers concerning the disapproval of the affirmative defense for planned events. 

Throughout the litigation over the Texas SIP revision, the EPA reiterated what was at the 

time its view that appropriately drawn affirmative defense provisions applicable to 

malfunctions can be consistent with CAA requirements for SIPs. In particular, the EPA 

argued in that litigation that sections 113 and 304 do not preclude appropriately drawn 

affirmative defense provisions for malfunctions in SIPs. The 5th Circuit applied the twostep Chevron analysis to the EPA’s interpretation of section 113 in connection with both 

the approval of the affirmative defense provision applicable to “unplanned events” and 

the disapproval of the affirmative defense provision applicable to “planned events.” With 

respect to both the approval and disapproval, the court held that the Agency’s 

interpretation of the CAA at that time was a “permissible interpretation of section [113], 

warranting deference.”23 Subsequent events have caused EPA to reevaluate this 

interpretation of the CAA requirements. 

The EPA has carefully evaluated the more recent April 2014 decision of the U.S. 

Court of Appeals for the District of Columbia Circuit in NRDC v. EPA in which the court 

came to a contrary conclusion with respect to the legal basis for an affirmative defense 

provision in the Agency’s own regulations.24 In light of this more recent decision, the 

EPA believes that its prior interpretation of the CAA with respect to the approvability of 

 

23 See Luminant Generation Co. v. EPA, 714 F.3d 841, at 851 and 856 (5th Cir. 2012). 24 See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 51 of 159 

affirmative defense provisions in SIPs is no longer the best reading of the statute. The 

EPA has authority to revise its prior interpretation of the CAA when further consideration 

indicates to the Agency that its prior interpretation of the statute is incorrect.25 In order to 

explain more fully why the EPA believes that the court’s decision in NRDC v. EPA

requires the Agency to change its SSM Policy and to revise its February 2013 proposal 

notice with respect to affirmative defense provisions in SIPs, the EPA will first explain 

why it believes that the reasoning of the court’s decision is more broadly applicable and 

will then explain why it believes that the specific reasons given by the court for rejecting 

the EPA’s prior interpretation of the CAA would apply with equal weight to SIP 

provisions. 

The EPA believes that the reasoning of the court’s decision in NRDC v. EPA 

applies more broadly than to the specific facts of the case for several reasons. First, the 

EPA notes that the court’s decision did not turn upon the specific provisions of CAA 

section 112. Although the court only evaluated the legal validity of an affirmative defense 

provision created by the EPA in conjunction with specific standards applicable to 

manufacturers of Portland cement, the court based its decision upon the provisions of 

sections 113 and 304 that pertain to enforcement of CAA requirements more broadly, 

including to SIPs. Sections 113 and 304 pertain to administrative and judicial 

enforcement generally and are in no way limited to enforcement of emission limitations 

 

25 See, e.g., White Stallion Energy Center, LLC v. EPA, 748 F.3d 1222, 1235 (D.C. Cir. 

2014) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 

(2005) and FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 52 of 159 

promulgated by the EPA under section 112. Thus, the EPA does not think that the mere 

fact that the court only addressed the legality of an affirmative defense provision in this 

particular context means that the court’s interpretation of sections 113 and 304 does not 

also apply more broadly. To the contrary, the EPA sees no reason why the logic of the 

court concerning sections 113 and 304 would not apply to SIP provisions as well. 

Second, the EPA notes that footnote 2 in the opinion does not signify that the 

court intended to take any position with respect to the application of its interpretation of 

the CAA to SIP provisions, let alone to suggest that its interpretation would not apply 

more broadly. The court was clearly cognizant that a similar legal issue had arisen in 

litigation in the U.S. Court of Appeals for the 5th Circuit concerning the Texas SIP and 

merely acknowledged that fact and clearly stated in this footnote: “[w]e do not here 

confront the question whether an affirmative defense may be appropriate in a State 

Implementation Plan.”26 Given that the case before the court did not pertain to SIP 

provisions and thus the legal validity of affirmative defense provisions in a SIP did not 

need to be decided, the EPA believes that footnote 2 simply reflects the court’s desire to 

be clear that it was only addressing the question of whether sections 113 and 304 

preclude any EPA authority to create an affirmative defense applicable to private civil 

suits in its own regulations. However, the EPA believes that the logic of the court’s 

decision in NRDC v. EPA regarding the import of sections 113 and 304 does extend to 

SIP provisions. In the remainder of this section of the SNPR, we explain in greater detail 

 

26 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 53 of 159 

why we now think the D.C. Circuit’s reading of the statute is the correct one. 

Finally, the EPA notes that the fact that the court only addressed the legality of 

affirmative defense provisions in the context of citizen suit enforcement—which by 

definition is judicial rather than administrative enforcement—does not affect the 

relevance of the court’s reasoning with respect to the legal basis for affirmative defenses 

in SIP provisions. Under the CAA, a state has the initial responsibility to develop and 

submit SIP submissions to meet various requirements (e.g., to impose reasonably 

available control measures on sources in nonattainment areas). The EPA’s evaluation and 

approval of the state’s SIP submission in turn makes the contents of the submission 

federally enforceable parts of the SIP. Pursuant to sections 113 and 304, the state, the 

EPA and citizens then have the ability to seek to bring enforcement actions for violations 

of the requirements of the SIP in federal court. Thus, the court’s logic in NRDC v. EPA

would also apply to the provisions of the state’s SIP, and the jurisdiction of a court to 

impose penalties or other forms of relief for violations of SIP requirements under the 

CAA cannot be altered by an affirmative defense in a state’s SIP provision in the same 

way that it cannot be altered by such a provision in an EPA regulation. 

Just as the court’s decision is not limited in ways that would preclude it from 

applying to SIP provisions, the EPA also believes that the logic of the decision would 

apply with equal weight to affirmative defense provisions in SIPs for a number of 

reasons. Most significantly, the court rejected a series of arguments that the EPA made to 

support its legal authority under the CAA to create an affirmative defense in the Portland 

Commented [A8]: Helpful, thanks 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 54 of 159 

cement NESHAP. The EPA made the same or comparable arguments to support its 

interpretation of the CAA to provide authority for states to elect to create, and for the 

EPA to approve, affirmative defense provisions in SIPs applicable in judicial 

enforcement cases. The EPA has carefully evaluated the reasoning of the court in the 

NRDC v. EPA decision and now believes that its prior interpretation of the CAA with 

respect to affirmative defense provisions in the SSM Policy, as first stated in the 1999 

SSM Guidance and as updated in the February 2013 proposal notice, was incorrect and 

would not withstand judicial review in light of the NRDC v. EPA decision. Evaluation of 

the key points of the court’s reasoning in the decision indicates that the court’s 

interpretation of the relevant statutory provisions applies equally to SIP provisions. 

First, the NRDC v. EPA court examined the litigants’ key argument that the EPA 

has no authority to alter the jurisdiction of courts to assess monetary penalties or to alter 

the factors that courts must consider when assessing the amount of such penalties. The 

litigants argued that the EPA’s creation of an affirmative defense had the effect of 

altering or eliminating the jurisdiction of the federal courts to impose penalties in a 

citizen suit enforcement proceeding. The NRDC v. EPA court evaluated the litigants’ 

argument with a straightforward reading of CAA section 304(a) concerning the rights of 

“any person” to bring an enforcement action and the jurisdiction of federal courts to 

assess liability and penalties in such an action and of CAA section 113(e)(1) concerning 

the factors that courts must consider when assessing civil penalties. Citing recent U.S. 

Supreme Court precedent, the court reasoned that section 304(a) creates a private right of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 55 of 159 

action and that the courts alone are vested with authority to determine the scope of 

remedies in judicial enforcement, rather than the administrative agency. The NRDC v. 

EPA court treated this issue as a question that it could answer with a Chevron step 1 plain 

reading of the statute and evidently saw no ambiguity concerning whether the EPA has 

authority to alter the rights of litigants to seek monetary penalties for violations or to alter 

the jurisdiction of the federal courts to assess such penalties. In retrospect and in light of 

the court’s decision, the EPA believes that this is the correct reading of CAA sections 113 

and 304 with respect to this question in the SIP context as well. Thus, these statutory 

provisions functionally bar affirmative defense provisions in SIPs that would have the 

effect of altering the rights of litigants or the authority of the courts in the event of 

enforcement for violations of SIP requirements. 

Second, the NRDC v. EPA court evaluated the EPA’s argument that an affirmative 

defense “fleshes out the statutory requirement that penalties be applied only when 

‘appropriate.’”27 The EPA had argued that CAA section 304(a) provides federal district 

courts with jurisdiction to “apply any appropriate civil penalties” and that such penalties 

would only be “appropriate” if the regulation being enforced specifically provided for 

such penalties in the first place. In other words, the EPA argued, if the regulation 

contained an affirmative defense that precluded monetary penalties under certain 

circumstances, then it would not be “appropriate” for a court to assess the penalties in 

those circumstances. The NRDC v. EPA court disagreed with this argument, stating 

 

27 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 56 of 159 

unequivocally that under the CAA “deciding whether penalties are ‘appropriate’ is a job 

for the courts, not EPA.”28 To the extent that a defendant in an enforcement case has a 

basis for arguing that monetary penalties should be reduced, the court stated that CAA 

section 113(e)(1) already provides courts with factors that may be taken into 

consideration. The court emphasized that in judicial enforcement, the court decides 

whether or not to accept a defendant’s arguments concerning the assessment of penalties, 

not the EPA. In the February 2013 proposal notice, the EPA relied on this same argument 

to support its position that affirmative defense provisions in SIPs would not contradict 

CAA sections 113 and 304 and to justify its proposed denial of the Petition with respect 

to affirmative defenses applicable to malfunctions events.29 Given that the court has 

rejected this interpretation of the CAA for the EPA’s own regulations, the EPA believes 

that the same principle applies to states that seek to alter the ability of federal courts to 

assess penalties for violations of CAA requirements in SIP provisions. If states have no 

authority to alter the jurisdiction of federal courts to impose remedies for violations 

explicitly provided for in the CAA, then this affects the EPA’s authority to approve any 

such SIP provisions as consistent with the requirements of the CAA. Pursuant to its 

authority and responsibility under sections 110(k), 110(l) and 193, the EPA can only 

approve SIP provisions that comply with the applicable substantive requirements of the 

CAA. Approving an affirmative defense provision into a SIP that would purport to 

 

28 See NRDC v. EPA, 749 F.3d 1055, 1062 (D.C. Cir. 2014). 29 See February 2013 proposal notice, 78 FR 12459 at 12472 (middle column). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 57 of 159 

contravene the jurisdiction of federal courts to determine liability and to impose remedies 

in accordance with sections 113 and 304 would thus be inappropriate. 

Third, the NRDC v. EPA court scrutinized the EPA’s argument that it has 

authority under CAA section 301 to create an affirmative defense through the general 

authority of the EPA Administrator “to prescribe such regulations as are necessary to 

carry out his functions under” the CAA.30 In the February 2013 proposal notice, the EPA 

did not make this particular argument because it was not proposing EPA regulations to 

implement the CAA, rather it was proposing action on a petition for rulemaking that 

entails evaluating the EPA’s guidance to states in the SSM Policy concerning whether 

specific types of SIP provisions are consistent with CAA requirements. Nevertheless, the 

EPA notes, the court rejected the notion that the EPA has any authority to promulgate 

regulations that would alter or eliminate the jurisdiction of federal courts to assess 

penalties when Congress has already directly spoken to that issue. As the court expressed 

it, “EPA cannot rely on its gap-filling authority to supplement the Clean Air Act’s 

provisions when Congress has not left the agency a gap to fill.” The EPA believes that 

the court’s reasoning would extend to situations where the EPA is required to determine 

whether or not an affirmative defense provision is consistent with CAA requirements. 

Following this reasoning, the EPA would not have authority, through rulemaking on a 

state’s SIP submission or otherwise, to approve an affirmative defense provision 

applicable in a judicial enforcement action, because to do so would be inconsistent with 

 

30 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 58 of 159 

the statutory allocation of jurisdiction to the federal courts. In other words, just as the 

EPA’s authority to promulgate regulations to implement the CAA does not encompass 

the authority to overwrite statutory provisions, the EPA likewise lacks authority to issue 

guidance to states concerning SIP provisions in the SSM Policy, or to approve a SIP 

submission that contains such SIP provisions, in a way that would likewise overwrite 

statutory provisions where Congress has spoken directly. 

Fourth, the NRDC v. EPA court weighed the EPA’s argument that CAA section 

304 does not “expressly deny” EPA authority to create affirmative defenses and thus the 

EPA is not precluded from doing so.31 Because the statute is silent with respect to 

whether or not such provisions are permissible, the EPA inferred that the EPA had 

authority to create them as a component of the Portland cement NESHAP. In the 

February 2013 proposal notice, the EPA used a comparable argument that sections 

110(a), 113(b) and 113(e) of the CAA do not expressly forbid affirmative defense 

provisions in SIPs, both to support its position that states could elect to have affirmative 

defense provisions for malfunctions in SIPs and in support of its proposed denial of the 

Petition on this point.32 In response to this particular argument, the NRDC v. EPA court 

rejected the suggestion that a court should “presume a delegation of power absent an 

express withholding of such power” as inconsistent with the principles of statutory 

interpretation under Chevron. The court thus expressly rejected the argument that 

 

31 Id. 32 See February 2013 proposal notice, 78 FR 12459 at 12470 (middle column); 12470 

(right column); 12472 (right column). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 59 of 159 

affirmative defense provisions are consistent with the CAA by virtue of the fact that 

Congress has not explicitly forbidden them, especially in the face of conflicting 

provisions such as those in sections 113(b) and 304(a) giving jurisdiction to federal 

courts to assess penalties for violations of CAA requirements. The EPA now believes that 

this same reasoning applies to affirmative defense provisions in SIPs. 

Finally, the NRDC v. EPA court evaluated the EPA’s argument that affirmative 

defense provisions are “necessary to account for the tension between requirements that 

emission limitations be ‘continuous’ and the practical reality that control technology can 

fail unavoidably.”33 This tension is an important point that the EPA has long noted as a 

basis for its interpretation of the CAA to allow affirmative defense provisions, not only in 

its own regulations such as the Portland cement NESHAP, but also in the SSM Policy 

providing guidance to states for SIP provisions. In the February 2013 proposal notice, the 

EPA used this same argument and the same case law support to justify its position that 

states could elect to have affirmative defense provisions for malfunctions in SIPs and for 

its proposed denial of the Petition on this point.34 The NRDC v. EPA court agreed that 

this would be a “good argument” for a source to make in an enforcement proceeding but 

made clear that this “tension” does not give the EPA legal authority to create an 

 

33 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014). 34 See February 2013 proposal notice, 78 FR 12459 at 12470 (left column); 12472 (right 

column); 12487 (left column). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 60 of 159 

affirmative defense.35 The court thus summarily rejected the EPA’s argument that the 

need to “balance” the objectives of the CAA and to resolve the “tension” in the CAA 

authorizes creation of affirmative defenses that purport to alter or eliminate the 

jurisdiction of the courts to assess monetary penalties or other forms of relief. Given the 

result in the NRDC v. EPA decision, the EPA believes that this argument can no longer be 

a basis for the EPA’s approval of affirmative defense provisions in SIPs that would apply 

in judicial enforcement actions. The net result would be that sources can continue to 

make this practical argument in the context of judicial enforcement proceedings and that 

this consideration would remain relevant in that forum, but without intercession by states 

or the EPA concerning whether the source should be liable for penalties in any specific 

circumstance through an affirmative defense provision in the SIP. In accordance with 

CAA section 113(e), sources retain the ability to seek lower monetary penalties through 

the statutory factors provided for consideration in administrative or judicial enforcement 

proceedings. In this context, for example, a violating source could argue that factors such 

as good-faith efforts to comply should reduce or eliminate otherwise applicable monetary 

penalties in a particular situation. 

In light of the court’s decision in NRDC v. EPA, the EPA believes it necessary to 

 

35 The EPA interprets the court’s opinion to mean that a defendant in an enforcement 

proceeding might want to make this argument as part of its efforts to seek lower 

penalties, consistent with the factors listed in CAA section 113(e). The court’s reference 

to the EPA’s making such an argument relates back to the court’s earlier suggestion that 

the EPA could seek to participate as an intervenor or an amicus in a citizen suit 

enforcement matter if it wants to take a position on what monetary penalties are 

“appropriate” for a given violation. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 61 of 159 

revise its SSM Policy and its February 2013 proposed response to the Petition with 

respect to the issues related to affirmative defense provisions in SIPs. Given the court’s 

reasoning that sections 113 and 304 preclude the EPA from having authority to create an 

affirmative defense applicable in private civil suits in federal regulations because such a 

provision would impinge upon jurisdiction explicitly provided by Congress to the courts, 

the EPA believes that its past guidance to states in the SSM Policy is flawed. If the EPA 

has no authority to create affirmative defenses because it cannot alter the jurisdiction of 

the courts to assess penalties in enforcement proceedings for violations of CAA 

requirements, then it follows that states likewise cannot alter the jurisdiction of the 

federal courts in SIP provisions and the EPA cannot approve any SIP provision that 

purports to do so. The EPA emphasizes that the same logic applies to any SIP provision 

that purports to eliminate, restrict or otherwise alter the jurisdiction of federal courts to 

impose any of the expressly listed forms of relief in section 113(b), not merely those 

applicable to monetary penalties.36 Pursuant to the requirements of sections 110(k), 

110(l) and 193, the EPA has both the authority and the responsibility to evaluate SIP 

submissions to assure that they meet the requirements of the CAA. Pursuant to section 

 

36 The EPA notes that CAA section 113(b) expressly gives federal courts jurisdiction “to 

restrain such violation, to require compliance, to assess such civil penalty, to collect any 

fees owed the United States under this chapter (other than subchapter II of this chapter) 

and any noncompliance assessment and nonpayment penalty owed under section 7420 of 

this title, and to award any other appropriate relief.” Similarly, CAA section 304 

expressly provides that in the context of a citizen suit enforcement case, federal courts 

have jurisdiction “to enforce such an emission standard or limitation, or such an order . . . 

and to apply any appropriate civil penalties.” In the latter section, the term “emission 

standard or limitation” is defined broadly in section 304(f). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 62 of 159 

110(k)(5), the EPA has authority and discretion to take action to require states to revise 

previously approved SIP provisions if they do not meet CAA requirements. 

For the foregoing reasons, in this SNPR the EPA is proposing to grant the Petition 

with respect to the Petitioner’s request that the EPA rescind its SSM Policy element 

interpreting the CAA to allow affirmative defense provisions in SIPs for excess emissions 

during SSM events. Unlike the EPA’s view at the time of the February 2013 proposal 

notice, the EPA now sees no valid basis for interpreting the CAA to permit affirmative 

defense provisions in SIPs for violations due to excess emissions during any type of 

event, whether that event is a malfunction totally beyond the control of the source or a 

planned event within the control of the sources such as a startup or shutdown. 

V. Revised SSM Policy on Affirmative Defense Provisions in SIPs 

In the February 2013 proposal notice, the EPA evaluated the issues raised by the 

Petitioner concerning the treatment of excess emissions during SSM events in SIP 

provisions. As part of responding to the Petition, the EPA proposed to clarify, reiterate 

and revise its longstanding SSM Policy. In this SNPR, the EPA is now proposing to 

revise further its interpretation of the CAA with respect to affirmative defense provisions 

applicable to excess emissions during SSM events. 

Based upon a reevaluation of the CAA with respect to SIP provisions, and upon 

careful consideration of the implications of the court’s decision in NRDC v. EPA, the 

EPA is proposing to revise its SSM Policy concerning the issue of affirmative defense 

provisions. In particular, the EPA is proposing to reverse its prior recommendations to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 63 of 159 

states on this issue provided in the 1999 SSM Guidance. In that guidance, the EPA had 

interpreted the CAA to permit states to elect to create narrowly drawn affirmative defense 

provisions in SIPs, both for malfunction events and for startup and shutdown events, so 

long as the provisions were consistent with the criteria recommended by the Agency. In 

the February 2013 proposal notice, the EPA had already proposed to revise this 

interpretation of the CAA to permit states to develop affirmative defense provisions only 

for malfunction events and not for startup and shutdown events. The decision of the court 

in NRDC v. EPA indicates that the EPA needs to revise the SSM Policy yet further. 

At this juncture, the EPA believes that the reasoning of the U.S. Court of Appeals 

for the District of Columbia Circuit in NRDC v. EPA logically extends to affirmative 

defense provisions created by states in SIPs, as well as to such provisions created by the 

EPA in its own regulations. Given that sections 113 and 304 functionally bar any 

affirmative defense that purports to alter or to eliminate the jurisdiction of federal courts 

to assess penalties for violations of CAA requirements or to impose the other remedies 

listed in section 113(b), this principle applies to SIP provisions as well. Although the 

NRDC v. EPA decision focused on the jurisdiction of the federal courts to assess civil 

penalties for violations of EPA regulations promulgated under section 112, because that 

was what was specifically at issue in the case before it, the EPA sees no reason why the 

same logic would not apply to any SIP provision that purported to alter or eliminate the 

jurisdiction of the federal courts to exercise their authority in the event of violations as 

provided in CAA section 113(b), including the authority to restrain violations, to require 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 64 of 159 

compliance, to assess civil penalties, to collect any fees and to award any other 

appropriate relief. In other words, affirmative defense provisions in SIPs that purport to 

alter or eliminate the broad authority of federal courts to award any of these types of 

relief in the event of an enforcement action, whether pursuant to section 113 or section 

304, are likewise contrary to the enforcement structure of the CAA. Accordingly, the 

EPA proposes to revise its SSM Policy to interpret the CAA to preclude affirmative 

defense provisions in SIPs. When finalized, this rulemaking will embody the EPA’s 

revised SSM Policy, and it will provide the most up-to-date and comprehensive EPA 

guidance on the subject of the proper treatment of excess emissions from sources during 

SSM events in SIP provisions. 

VI. Legal Authority, Process and Timing for SIP Calls 

In section VIII of the February 2013 proposal notice, the EPA explained in detail 

its statutory authority under CAA section 110(k)(5) to issue a SIP call to states to address 

SIP deficiencies, the process for making such a SIP call and the timing for such a SIP 

call. In this SNPR, the EPA is not revising its interpretations of the CAA with respect to 

those issues and thus is not seeking comment on these topics. The EPA is revising one 

aspect of the February 2013 proposal notice with respect to the basis for the proposed SIP 

calls for affirmative defense provisions. In the February 2013 proposal notice, the EPA 

explained its basis for concluding that different types of deficient SIP provisions 

identified in the Petition are substantially inadequate to comply with requirements of the 

CAA and thus warrant a SIP call for a state to revise or to eliminate the impermissible 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 65 of 159 

provision. With respect to affirmative defense provisions, the EPA articulated its 

evaluation of why inadequate affirmative defense provisions applicable to malfunction 

events, or any affirmative defense provisions applicable to planned events like startup 

and shutdown, would be inconsistent with fundamental legal requirements of CAA 

sections 110(a) and 302(k) and the enforcement structure provided in CAA sections 113 

and 304.37 The rationale provided by the EPA in the February 2013 proposal notice was 

obviously based upon the Agency’s interpretation of the relevant requirements of the 

CAA at the time of that proposal. 

In light of the decision of the U.S. Court of Appeals for the District of Columbia 

Circuit in NRDC v. EPA, however, the EPA has reevaluated whether any form of 

affirmative defense provision is consistent with CAA requirements for SIP provisions. 

The court concluded that the EPA has no authority to alter the rights of litigants to seek 

monetary penalties for violations of CAA requirements and no authority to alter the broad 

jurisdiction of federal courts to assess such penalties for such violations under CAA 

sections 113 and 304. The EPA believes that the logic of the court’s decision extends to 

the jurisdiction of the federal courts to impose other remedies expressly provided for in 

sections 113 and 304 as well. These sections of the CAA are thus among the fundamental 

requirements with which SIPs must comply in order to be consistent with the 

enforcement structure created by Congress in the CAA. 

The EPA notes that the NRDC v. EPA court did not condition its decision on 

 

37 See February 2013 proposal notice, 78 FR 12459 at 12487-88. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 66 of 159 

considerations such as whether the use of the affirmative defense provision in the 

Portland cement NESHAP would have a demonstrated causal connection to a given 

environmental impact (or undermine a specific enforcement action); the court decided the 

question based solely on the fundamental legal requirements of the CAA, which apply 

equally to SIPs. The court viewed the statutory requirements for enforcement of 

violations as a legal bar to the EPA’s creating an affirmative defense. The EPA believes 

that this decision supports the EPA’s view that an affirmative defense provision in a SIP 

that would operate to interfere with the rights of litigants to seek penalties for violations 

of the SIP or other statutory forms of relief, or to interfere with the jurisdiction of courts 

to assess penalties or other relief for such violations, is a substantial inadequacy because 

such provision would violate fundamental legal requirements of the CAA. This potential 

for interference with the intended enforcement structure of the CAA is sufficient to 

establish that such an affirmative defense provision is substantially inadequate to meet 

CAA requirements, and there is no need to demonstrate that the use of the affirmative 

defense would be causally connected to any particular impact (e.g., a specific violation of 

a NAAQS at a particular monitor on a particular day, or the undermining of effective 

enforcement for a particular violation by a particular source). By specifying that parties 

have the right to seek relief for violations and that courts have jurisdiction to impose 

relief for such violations, the EPA believes, Congress has already made the determination 

that SIP provisions have to be consistent with the requirements of CAA sections 113 and 

304 without regard to impact on other CAA requirements such as demonstrating 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 67 of 159 

attainment. Accordingly, the EPA has the authority and the responsibility to assure that 

SIP provisions meet the requirements of CAA sections 113 and 304 and do not 

undermine the enforcement structure for SIPs that was created in the CAA. 

VII. What is the EPA proposing through this SNPR for each of the specific 

affirmative defense provisions identified in the Petition or identified independently 

by the EPA? 

A. Overview of the EPA’s Evaluation of Specific Affirmative Defense SIP Provisions 

In addition to its overarching request that the EPA revise its interpretation of the 

CAA in the SSM Policy with respect to any form of affirmative defense provisions in 

SIPs, the Petitioner identified specific existing affirmative defense provisions that the 

Petitioner contended are not consistent with the EPA’s own interpretation of the CAA as 

expressed in the 1999 SSM Guidance. In general, the provisions identified by the 

Petitioner are structured as affirmative defense provisions, regardless of whether they use 

the term “affirmative defense” and regardless of whether the EPA ever specifically 

evaluated the provisions with respect to the recommendations for such provisions in the 

1999 SSM Guidance. While not agreeing with the EPA’s guidance for affirmative 

defense provisions, the Petitioner expressed concern that all of the identified provisions 

fail to address some or all of the criteria for affirmative defense provisions that the EPA 

recommended in the 1999 SSM Guidance. 

In the February 2013 proposal notice, the EPA explained that it was reviewing 

each identified affirmative defense provision on the merits. At that time, the EPA was 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 68 of 159 

operating under the belief that its interpretation of the CAA with respect to affirmative 

defense provisions in SIPs was correct. Accordingly, the EPA evaluated each of the 

provisions for consistency with the EPA’s interpretation of the CAA as set forth in the 

1999 SSM Guidance and as it was revising its interpretation in the February 2013 

proposal notice. The February 2013 proposal notice thus contained the EPA’s proposal to 

grant or to deny the Petition based on the EPA’s evaluation as to whether the provision at 

issue provides adequate criteria to provide only a narrow affirmative defense for 

violations due to malfunctions for sources under certain circumstances consistent with the 

overarching CAA objectives, such as attaining and maintaining the NAAQS. In addition, 

the EPA proposed to grant the Petition with respect to any identified provision that 

creates an affirmative defense applicable during planned startup and shutdown events, 

because such provisions are not consistent with the requirements of the CAA. 

Now, however, the EPA is reevaluating each of the specific affirmative defense 

provisions identified by the Petitioner for consistency with the CAA in light of the court’s 

decision in NRDC v. EPA. As explained in section III.C of this SNPR, the EPA is 

revising its interpretation of the CAA concerning the legal basis for affirmative defense 

provisions. Given that the reasoning of the court applies equally to SIP provisions, the 

EPA is proposing to grant the Petition with respect to each of these provisions. Thus, the 

EPA is proposing to find that these provisions are substantially inadequate because they 

are not consistent with fundamental legal requirements of the CAA and the EPA is 

proposing to issue a SIP call to each affected state for these specific provisions. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 69 of 159 

In addition to provisions identified by the Petitioner, the EPA is independently 

identifying other specific existing problematic affirmative defense provisions in SIPs. As 

a result, the EPA is newly including one or more affirmative defense provisions in the 

SIPs of the following four states: (1) New Mexico (Albuquerque-Bernalillo County); (2) 

Texas; (3) California (Eastern Kern Air Pollution Control District, Imperial County Air 

Pollution Control District and San Joaquin Valley Air Pollution Control District); and (4) 

Washington (Energy Facility Site Evaluation Council and Southwest Clean Air Agency). 

The EPA is including these additional affirmative defense provisions in this SNPR in 

order to provide comprehensive guidance to all states concerning such provisions in SIPs 

and to avoid confusion that may arise due to recent Agency administrative actions, 

litigation and resulting court decisions relevant to such provisions under the CAA. In 

particular, the EPA is concerned that its explicit approval of affirmative defense 

provisions in the SIPs of other states as being consistent with the requirements of the 

CAA as reflected in the 1999 SSM Guidance warrants affirmative action by the Agency 

to ask those states to revise their SIPs. Accordingly, the EPA is proposing to make a 

finding of substantial inadequacy for these additional affirmative defense provisions 

because they are not consistent with fundamental legal requirements of the CAA and the 

EPA is proposing to issue a SIP call with respect to each affected state for these specific 

provisions as well. 

B. Affected States in EPA Region III 

1. District of Columbia 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 70 of 159 

a. Petitioner’s Analysis 

The Petitioner objected to five provisions in the District of Columbia (D.C.) SIP 

as being inconsistent with the CAA and the EPA’s SSM Policy.38 Among the other 

alleged SIP deficiencies, the Petitioner objected to the provision in the D.C. SIP that 

provides an affirmative defense for violations of visible emission limitations during 

“unavoidable malfunction” (D.C. Mun. Regs. tit. 20 § 606.4). The Petitioner objected to 

this provision because the elements of the defense are not laid out clearly in the SIP, 

because the term “affirmative defense” is not defined in the SIP, and finally, the 

Petitioner argues, because affirmative defense provisions for any excess emissions are 

wholly inconsistent with the CAA and should be removed from the SIP. The Petitioner’s 

overarching claim was that CAA section 113 is a bar to affirmative defense provisions 

because EPA does not have authority to alter the jurisdiction of the courts to assess 

penalties or the factors that Congress directed the courts to consider. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to D.C. Mun. Regs. tit. 20 § 606.4 because it is not a permissible affirmative 

defense provision consistent with the requirements of the CAA and the EPA’s 

recommendations in the EPA’s SSM Policy. The EPA previously stated its belief that, by 

purporting to create a bar to enforcement that applies not only to monetary penalties but 

also to injunctive relief, this provision is inconsistent with the requirements of CAA 

 

38 Petition at 29-30. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 71 of 159 

sections 113 and 304. By not including sufficient criteria to assure that sources seeking to 

raise the affirmative defense have in fact been properly designed, maintained and 

operated, and to assure that sources have taken all appropriate steps to minimize excess 

emissions, the provision also fails to be sufficiently narrowly drawn to justify shielding 

from monetary penalties for violations. Thus, the EPA previously reasoned that this 

provision is not appropriate as an affirmative defense provision because it is inconsistent 

with fundamental requirements of the CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for D.C. Mun. Regs. tit. 20 § 606.4. The EPA is 

proposing to revise its interpretation of the CAA with respect to affirmative defense 

provisions in SIPs. Previously the EPA assessed whether the provision met certain 

requirements, such as being limited to monetary penalties rather than injunctive relief and 

containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. The EPA interprets the provision of D.C. Mun. Regs. tit. 20 § 606.4 to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 72 of 159 

create an impermissible affirmative defense for violations of visible emission limitations 

during “unavoidable malfunction” events. The provision operates to limit the jurisdiction 

of the federal court in an enforcement action and to preclude both liability and any form 

of judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA believes that 

this provision interferes with the intended enforcement structure of the CAA, through 

which parties may seek to bring enforcement actions for violations of SIP emission limits 

and courts may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For this reason, the EPA is proposing to find D.C. Mun. Regs. tit. 20 § 606.4 

substantially inadequate to meet CAA requirements and the EPA is thus proposing to 

issue a SIP call with respect to this provision. The EPA notes that in this SNPR it is only 

addressing this provision with respect to its deficiency as an affirmative defense 

provision and is not revising its February 2013 proposal with respect to the proposed 

action on the other four provisions in the D.C. SIP that are at issue in the Petition. 

2. Virginia 

a. Petitioner’s Analysis 

The Petitioner objected to a generally applicable provision in the Virginia SIP that 

allows for discretionary exemptions during periods of malfunction (9 Va. Admin. Code § 

5-20-180(G)).39 The Petitioner objected to this provision on multiple grounds, including: 

(i) that it provides an exemption from the otherwise applicable SIP emission limitations; 

(ii) that it provides a discretionary exemption for excess emissions during malfunction 

 

39 Petition at 70-71. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 73 of 159 

because the provision gives the state the authority to determine whether a violation “shall 

be judged to have taken place”; and (iii) that if intended as an affirmative defense 

provision it fails to meet EPA’s interpretation of the CAA with respect to such provisions 

for several reasons. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to 9 Va. Admin. Code § 5-20-180(G). The EPA explained that the provision at 

issue is deficient for several reasons, including the fact that it is not sufficient as an 

affirmative defense provision to meet CAA requirements. With respect to the deficiency 

of the provision as an affirmative defense, the EPA noted that even if it were to consider 

9 Va. Admin. Code § 5-20-180(G) as providing for an affirmative defense rather than an 

automatic or discretionary exemption, the provision is not a permissible affirmative 

defense provision consistent with the requirements of the CAA as interpreted in the 

EPA’s recommendations in the EPA’s SSM Policy. The EPA previously stated its belief 

that, by purporting to create a bar to enforcement that applies not only to monetary 

penalties but also to injunctive relief, this provision is inconsistent with the requirements 

of CAA sections 113 and 304. The EPA also argued that by not including sufficient 

criteria to assure that sources seeking to raise the affirmative defense have in fact been 

properly designed, maintained and operated, and to assure that sources have taken all 

appropriate steps to minimize excess emissions, the provision fails to be sufficiently 

narrowly drawn to justify shielding from monetary penalties for violations. Thus, the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 74 of 159 

EPA previously proposed to find that this provision is not appropriate as an affirmative 

defense provision because it is inconsistent with fundamental requirements of the CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for 9 Va. Admin. Code § 5-20-180(G). The EPA 

is proposing to revise its interpretation of the CAA with respect to affirmative defense 

provisions in SIPs. Previously the EPA assessed whether such provisions met certain 

requirements, such as being limited to monetary penalties rather than injunctive relief and 

containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. The EPA interprets the provision of 9 Va. Admin. Code § 5-20-180(G) to 

create an impermissible affirmative defense for violations of SIP emission limits. The 

provision would operate to limit the jurisdiction of the federal court in an enforcement 

action and to preclude both liability and any form of judicial relief contemplated in CAA 

sections 113 and 304. Thus, the EPA believes that this provision interferes with the 

intended enforcement structure of the CAA, through which parties may seek to bring 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 75 of 159 

enforcement actions for violations of SIP emission limits and courts may exercise their 

jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find 9 Va. Admin. Code § 5-20-180(G) 

substantially inadequate to meet CAA requirements and the EPA is thus proposing to 

issue a SIP call with respect to this provision. The EPA notes that in this SNPR it is only 

addressing this provision with respect to its deficiency as an affirmative defense 

provision and is not revising its February 2013 proposal notice with respect to the other 

separate bases for the finding of substantial inadequacy of this provision. 

3. West Virginia 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified one affirmative defense 

provision in the SIP for the state of West Virginia in W.Va. Code Section 45-2-9.4. This 

provision provides an affirmative defense available to sources for excess emissions that 

occur during malfunctions. The EPA notes that it has already proposed to make a finding 

of substantial inadequacy and to issue a SIP call for another related provision in W. Va. 

Code Section 45-2-9.1 for separate reasons not relevant here and the EPA is not 

reopening its February 2013 proposal notice with respect to the latter SIP provision. 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 76 of 159 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. The 

affirmative defense in W.Va. Code Section 45-2-9.4 provides that if a source establishes 

certain factual criteria “to the satisfaction of” a state official, then the occurrence of a 

malfunction is an “affirmative defense.” The EPA notes that the affirmative defense for 

malfunctions in W.Va. Code Section 45-2-9.4 was not consistent with the EPA’s prior 

interpretation of the CAA and with its recommendations for such provisions in the 1999 

SSM Guidance. Regardless of that fact, the EPA believes that this provision 

impermissibly purports to alter or eliminate the jurisdiction of federal courts to assess 

penalties or to impose other forms of relief for violations of SIP emission limits. Under 

this provision, if the source is able to establish that it met each of the specified criteria to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 77 of 159 

the satisfaction of the state official, then the provision purports to bar any relief for those 

violations. Accordingly, the EPA believes that this affirmative defense provision is 

inconsistent with the fundamental enforcement structure of the CAA and the EPA thus 

believes that the provision is not consistent with CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for the affirmative defense provision applicable to excess 

emissions that occur during malfunctions in W.Va. Code Section 45-2-9.4. The EPA is 

proposing to revise its interpretation of the CAA with respect to affirmative defense 

provisions in SIPs. Previously the EPA assessed whether such provisions met certain 

requirements, such as being limited to monetary penalties rather than injunctive relief and 

containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets W.Va. Code Section 45-2-9.4 to provide an affirmative 

defense that operates to limit the jurisdiction of the federal court in an enforcement action 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 78 of 159 

and to limit the authority of the court to impose monetary penalties or to impose other 

forms of relief as contemplated in CAA sections 113 and 304. Thus, the EPA believes 

that this provision interferes with the intended enforcement structure of the CAA, through 

which parties may seek to bring enforcement actions for violations of SIP emission limits 

and courts may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find W.Va. Code Section 45-2-9.4 

substantially inadequate to meet CAA requirements and thus the EPA is proposing to 

issue a SIP call with respect to this provision. The EPA notes that in this SNPR it is only 

addressing this provision with respect to its deficiency as an affirmative defense 

provision and is not revising its February 2013 proposal with respect to the proposed 

action on the other provisions in the West Virginia SIP that are at issue in the Petition. 

C. Affected States in EPA Region IV 

1. Georgia 

a. Petitioner’s Analysis 

The Petitioner objected to a provision in the Georgia SIP that provides for 

exemptions for excess emissions during startup, shutdown or malfunctions under certain 

circumstances (Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7)).40 The Petitioner objected to 

this provision on multiple grounds, including: (i) that it provides an exemption from the 

otherwise applicable SIP emission limitations by providing that the excess emissions 

“shall be allowed” subject to certain conditions; (ii) that although the provision provides 

 

40 Petition at 32. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 79 of 159 

some “substantive criteria,” the provision does not meet the criteria the EPA recommends 

for an affirmative defense provision consistent with the requirements of the CAA in the 

EPA’s 1999 SSM Guidance; and (iii) that the provision is not a permissible “enforcement 

discretion” provision applicable only to state personnel, because it “is susceptible to 

interpretation as an enforcement exemption, precluding EPA and citizen enforcement as 

well as state enforcement.” 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7). The EPA explained that the 

provision at issue is deficient for several reasons, including the fact that it is not sufficient 

as an affirmative defense provision to meet CAA requirements. With respect to the 

deficiency of the provision as an affirmative defense, the EPA noted that Ga. Comp. R. & 

Regs. 391-3-1-.02(2)(a)(7) is not a permissible affirmative defense provision consistent 

with the requirements of the CAA as interpreted in the EPA’s recommendations in the 

EPA’s SSM Policy. By purporting to create a bar to enforcement that applies not only to 

monetary penalties but also to injunctive relief, the EPA reasoned that this provision is 

inconsistent with the requirements of CAA sections 113 and 304. The EPA also argued 

that by not including sufficient criteria to assure that sources seeking to raise the 

affirmative defense have in fact been properly designed, maintained and operated, and to 

assure that sources have taken all appropriate steps to minimize excess emissions, the 

provision also fails to be sufficiently narrowly drawn to justify shielding from monetary 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 80 of 159 

penalties for violations. Moreover, the EPA previously reasoned that Ga. Comp. R. & 

Regs. 391-3-1-.02(2)(a)(7) was deficient because it applies not only to malfunctions but 

also to startup and shutdown events, contrary to the EPA’s interpretation of the CAA set 

forth in the February 2013 proposal notice. Thus, the EPA previously proposed to find 

that Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is not appropriate as an affirmative 

defense provision because it is inconsistent with fundamental requirements of the CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7). 

The EPA is proposing to revise its interpretation of the CAA with respect to affirmative 

defense provisions in SIPs. Previously the EPA assessed whether such provisions met 

certain requirements, such as being limited to monetary penalties rather than injunctive 

relief and containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. The EPA interprets the provision of Ga. Comp. R. & Regs. 391-3-1-

.02(2)(a)(7) to create an impermissible affirmative defense for violations of SIP emission 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 81 of 159 

limits. The provision operates to limit the jurisdiction of the federal court in an 

enforcement action and to preclude both liability and any form of judicial relief 

contemplated in CAA sections 113 and 304. Thus, the EPA believes that this provision 

interferes with the intended enforcement structure of the CAA, through which parties 

may seek to bring enforcement actions for violations of SIP emission limits and courts 

may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Ga. Comp. R. & Regs. 391-3-1-

.02(2)(a)(7) substantially inadequate to meet CAA requirements and the EPA is thus 

proposing to issue a SIP call with respect to this provision. The EPA notes that in this 

SNPR it is only addressing this provision with respect to its deficiency as an affirmative 

defense provision and is not revising its February 2013 proposal with respect to the other 

separate bases for the finding of substantial inadequacy of this provision. 

2. Mississippi 

a. Petitioner’s Analysis 

The Petitioner objected to three provisions in the Mississippi SIP as being 

inconsistent with the CAA and the EPA’s SSM Policy.41 Among the other alleged SIP 

deficiencies, the Petitioner objected to two generally applicable provisions in the 

Mississippi SIP that allow for affirmative defenses for violations of otherwise applicable 

SIP emission limitations during periods of upset, i.e., malfunctions (11-1-2 Miss. Code R. 

 

41 Petition at 29-30. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 82 of 159 

§ 10.1) and unavoidable maintenance (11-1-2 Miss. Code R. § 10.3).42 First, the 

Petitioner objected to both of these provisions based on its assertion that the CAA allows 

no affirmative defense provisions in SIPs. Second, the Petitioner asserted that even if 

affirmative defense provisions were permissible under the CAA, the affirmative defenses 

in these provisions “fall far short of the EPA policy.” Specifically, the Petitioner argued 

that the EPA’s guidance for affirmative defenses recommends that they “are not 

appropriate where a single source or a small group of sources has the potential to cause 

an exceedance of the NAAQS or PSD increments,”43 and Mississippi’s provisions do not 

contain a restriction to address this point. Further, the Petitioner argued that the 

affirmative defenses in Mississippi’s SIP are not limited to actions seeking civil penalties 

and that they fail to meet other criteria “that EPA requires for acceptable defense 

provisions.”44 Finally, the Petitioner argued that the CAA and the EPA’s SSM Policy 

interpreting it do not allow affirmative defenses for excess emissions during maintenance 

events under any circumstances. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to 11-1-2 Miss. Code R. § 10.1 and 11-1-2 Miss. Code R. § 10.3 because they are 

deficient affirmative defense provisions. By purporting to create a bar to enforcement that 

applies not only to monetary penalties but also to injunctive relief, the EPA reasoned that 

 

42 Petition at 47-49. 

43 Petition at 48. 

44 Petition at 47-48. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 83 of 159 

these provisions are inconsistent with the requirements of CAA sections 113 and 304. 

The EPA also argued that by not including sufficient criteria to assure that sources 

seeking to raise these affirmative defenses have in fact been properly designed, 

maintained and operated, and to assure that sources have taken all appropriate steps to 

minimize excess emissions, the provision also fails to be sufficiently narrowly drawn to 

justify shielding from monetary penalties for violations during malfunctions. With 

respect to the comparable affirmative defense for maintenance in 11-1-2 Miss. Code R. § 

10.3, the EPA reiterated its long held position that no affirmative defense is appropriate 

for violations that occur during maintenance because maintenance is a normal mode of 

source operation during which the source should be expected to comply with the 

applicable emission limitations. Thus, the EPA previously proposed to find that 11-1-2 

Miss. Code R. § 10.1 and 11-1-2 Miss. Code R. § 10.3 are not appropriate as affirmative 

defense provisions because they are inconsistent with fundamental requirements of the 

CAA. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for 11-1-2 Miss. Code R. § 10.1 and 11-1-2 Miss. 

Code R. § 10.3. The EPA is proposing to revise its interpretation of the CAA with respect 

to affirmative defense provisions in SIPs. Previously the EPA assessed whether the 

provision met certain requirements, such as being limited to monetary penalties rather 

than injunctive relief and containing sufficiently robust criteria to assure that the defense 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 84 of 159 

applied only in appropriately narrow circumstances. Now, the Agency must evaluate such 

provisions to determine whether they are constructed in a way that would purport to 

preclude federal court jurisdiction under section 113 to assess civil penalties or other 

forms of relief for violations of SIP emission limits, to prevent courts from considering 

the statutory factors for the assessment of civil penalties under section 113 or to interfere 

with the rights of litigants to pursue enforcement consistent with their rights under the 

citizen suit provision of section 304. The EPA interprets the provisions of 11-1-2 Miss. 

Code R. § 10.1 and 11-1-2 Miss. Code R. § 10.3 to create an impermissible affirmative 

defenses for violations of SIP emission limits. These provisions operate to limit the 

jurisdiction of the federal court in an enforcement action and to preclude both liability 

and any form of judicial relief contemplated in CAA sections 113 and 304. Thus, the 

EPA believes that these provisions interfere with the intended enforcement structure of 

the CAA, through which parties may seek to bring enforcement actions for violations of 

SIP emission limits and courts may exercise their jurisdiction to determine what, if any, 

relief is appropriate. 

For these reasons, the EPA is proposing to find 11-1-2 Miss. Code R. § 10.1 and 

11-1-2 Miss. Code R. § 10.3 provisions substantially inadequate to meet CAA 

requirements and the EPA is thus proposing to issue a SIP call with respect to these 

provisions. The EPA notes that in this SNPR it is only addressing 11-1-2 Miss. Code R. § 

10.1 and 11-1-2 Miss. Code R. § 10.3 with respect to the deficiency as affirmative 

defense provisions and is not revising its February 2013 proposal with respect to another 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 85 of 159 

SIP provision, 11-1-2 Miss. Code R. § 10.2, for which the EPA has proposed to make a 

finding of substantial inadequacy and to issue a SIP call on different grounds. 

3. South Carolina 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified one affirmative defense 

provision in the SIP for the state of South Carolina in S.C. Code Ann. Regs. 62.1, Section 

II(G)(6). This provision provides that permits for certain sources may contain an 

affirmative defense for excess emissions that occur during emergencies. The permits at 

issue embody federally enforceable emission limits that assure the sources will remain 

below the threshold for major stationary sources subject to the permitting requirements of 

title V of the CAA. By accepting these emission limits in permits as authorized by this 

provision of the state’s SIP, these sources are treated as minor sources rather than major 

sources for regulatory purposes. 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 86 of 159 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. The 

affirmative defense in S.C. Code Ann. Regs. 62.1, Section II(G)(6) provides that if a 

source meets certain factual criteria, then the occurrence of an emergency is an 

“affirmative defense” for any technology-based emission limitation violations that occur 

during the emergency. The affirmative defense is not limited to monetary penalties and 

appears to bar any form of relief if the source meets the criteria for the defense. The EPA 

notes that the affirmative defense for emergencies in S.C. Code Ann. Regs. 62.1, Section 

II(G)(6) was not consistent with the EPA’s prior interpretation of the CAA and with its 

recommendations for such provisions in the 1999 SSM Guidance. Regardless of that fact, 

the EPA believes that this provision impermissibly purports to alter or eliminate the 

jurisdiction of federal courts to assess penalties or to impose other forms of relief for 

violations of federally enforceable SIP or permit emission limits. Under this provision, if 

the source is able to establish that it met each of the specified criteria, then the provision 

purports to bar any relief for those violations. Accordingly, the EPA believes that this 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 87 of 159 

affirmative defense provision is inconsistent with the fundamental enforcement structure 

of the CAA and the EPA thus believes that the provision is not consistent with CAA 

requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for the affirmative defense provisions applicable to excess 

emissions that occur during emergencies in S.C. Code Ann. Regs. 62.1, Section II(G)(6). 

The EPA is proposing to revise its interpretation of the CAA with respect to affirmative 

defense provisions in SIPs. Previously the EPA assessed whether such provisions met 

certain requirements, such as being limited to monetary penalties rather than injunctive 

relief and containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets S.C. Code Ann. Regs. 62.1, Section II(G)(6) to provide an 

affirmative defense that operates to limit the jurisdiction of the federal court in an 

enforcement action and to limit the authority of the court to impose monetary penalties or 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 88 of 159 

to impose other forms of relief as contemplated in CAA sections 113 and 304. Thus, the 

EPA believes that this provision interferes with the intended enforcement structure of the 

CAA, through which parties may seek to bring enforcement actions for violations of SIP 

emission limits and courts may exercise their jurisdiction to determine what, if any, relief 

is appropriate. 

For these reasons, the EPA is proposing to find S.C. Code Ann. Regs. 62.1, 

Section II(G)(6) substantially inadequate to meet CAA requirements and the EPA is thus 

proposing to issue a SIP call with respect to this provision. The EPA notes that in this 

SNPR it is only addressing this provision with respect to its deficiency as an affirmative 

defense provision and is not revising its February 2013 proposal with respect to the 

proposed action on the other provisions in the South Carolina SIP that are at issue in the 

Petition. 

D. Affected States in EPA Region V 

1. Illinois 

a. Petitioner’s Analysis 

The Petitioner objected to three generally applicable provisions in the Illinois SIP 

(Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 201.262 and Ill. Admin. 

Code tit. 35 § 201.265) which the Petitioner argued have the effect of providing 

discretionary exemptions from otherwise applicable SIP emission limitations.45 The 

Petitioner objected to these provisions on multiple grounds, including: (i) that the 

 

45 Petition at 33-36. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 89 of 159 

provisions invite sources to request, during the permitting process, advance permission to 

continue to operate during a malfunction or breakdown and to request advance 

permission to “violate” otherwise applicable emission limitations during startup; (ii) that 

the provisions state that, once granted, the advance permission to violate the emission 

limitations “shall be a prima facie defense to an enforcement action”; and (iii) that the 

term “‘prima facie defense’ is ambiguous in its operation.” The Petitioner argued that the 

latter provision is not clear regarding whether the defense is to be evaluated “in a judicial 

or administrative proceeding or whether the Agency determines its availability.” 

Allowing defenses to be raised in these undefined contexts, the Petitioner argued, is 

“inconsistent with the enforcement structure of the Clean Air Act.” The Petitioner 

asserted that “if . . . the ‘prima facie defense’ is anything short of the ‘affirmative 

defense,” as contemplated in the 1999 SSM Guidance, then “it clearly has the potential to 

interfere with EPA and citizen enforcement.” 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 201.262 and Ill. 

Admin. Code tit. 35 § 201.265. The EPA proposed to grant the Petition for these 

provisions even though the state has asserted that the effect of these provisions together 

only provides sources with a prima facie defense in an enforcement proceeding. Even if 

interpreted to provide an affirmative defense rather than an automatic or discretionary 

exemption, however, the EPA previously noted that the provisions do not provide a 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 90 of 159 

permissible affirmative defense provision consistent with the requirements of the CAA as 

interpreted in the EPA’s recommendations in the EPA’s SSM Policy. 

In the February 2013 proposal notice, the EPA enumerated various ways in which 

the provisions were not consistent with the EPA’s recommendations in the EPA’s SSM 

Policy interpreting the CAA: (i) it is not clear that the defense applies only to monetary 

penalties, which is inconsistent with the requirements of CAA sections 113 and 304; (ii) 

the defense applies to violations that occurred during startup periods, which is 

inconsistent with CAA sections 113 and 304; (iii) the provisions shift the burden of proof 

to the enforcing party; and (iv) the provisions do not include sufficient criteria to assure 

that sources seeking to raise the affirmative defense have in fact been properly designed, 

maintained and operated, and to assure that sources have taken all appropriate steps to 

minimize excess emissions. Accordingly, even if Ill. Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262 and Ill. Admin. Code tit. 35 § 201.265 are together 

interpreted to provide a prima facie defense to enforcement rather than to provide 

exemptions, the EPA already proposed to find that these provisions are substantially 

inadequate to meet CAA requirements and thus proposed to issue a SIP call with respect 

to these provisions. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. 

Code tit. 35 § 201.262 and Ill. Admin. Code tit. 35 § 201.265. The EPA is proposing to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 91 of 159 

revise its interpretation of the CAA with respect to affirmative defense provisions in 

SIPs. Previously the EPA assessed whether such provisions met certain requirements, 

such as being limited to monetary penalties rather than injunctive relief and containing 

sufficiently robust criteria to assure that the defense applied only in appropriately narrow 

circumstances. Now, the Agency must evaluate such provisions to determine whether 

they are constructed in a way that would purport to preclude federal court jurisdiction 

under section 113 to assess civil penalties or other forms of relief for violations of SIP 

emission limits, to prevent courts from considering the statutory factors for the 

assessment of civil penalties under section 113 or to interfere with the rights of litigants 

to pursue enforcement consistent with their rights under the citizen suit provision of 

section 304. To the extent that Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 

§ 201.262 and Ill. Admin. Code tit. 35 § 201.265 together do provide only a defense as 

characterized by the state rather than an exemption, the EPA believes that they create an 

impermissible affirmative defense for violations of SIP emission limits. These provisions 

would operate together to limit the jurisdiction of the federal court in an enforcement 

action and to preclude both liability and any form of judicial relief contemplated in CAA 

sections 113 and 304. Thus, the EPA believes that these provisions interfere with the 

intended enforcement structure of the CAA, through which parties may seek to bring 

enforcement actions for violations of SIP emission limits and courts may exercise their 

jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Ill. Admin. Code tit. 35 § 201.261, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 92 of 159 

Ill. Admin. Code tit. 35 § 201.262 and Ill. Admin. Code tit. 35 § 201.265 substantially 

inadequate to meet CAA requirements and the EPA is thus proposing to issue a SIP call 

with respect to these provisions. The EPA notes that in this SNPR it is only addressing 

these provisions with respect to their deficiency as an affirmative defense and is not 

revising its February 2013 proposal notice with respect to the other separate bases for the 

finding of substantial inadequacy for these provisions. 

2. Indiana 

a. Petitioner’s Analysis 

The Petitioner objected to a generally applicable provision in the Indiana SIP that 

allows for discretionary exemptions during malfunctions (326 Ind. Admin. Code 1-6-

4(a)).46 The Petitioner objected to this provision on multiple grounds, including: (i) that it 

provides an exemption from the otherwise applicable SIP emission limitations; (ii) that it 

is ambiguous because it provides that excess emissions during malfunction periods “shall 

not be considered a violation” if the source demonstrates that a number of conditions are 

met, but it does not specify to whom or in what forum such demonstration must be made; 

(iii) that if the foregoing demonstration need only be made to the satisfaction of the state, 

then this would give a state official the sole authority to determine that the excess 

emissions were not a violation and could thus be read to preclude enforcement by the 

EPA or citizens; and (iv) that if the demonstration is to be made in an enforcement 

context, then the provision could be interpreted as providing an affirmative defense, but 

 

46 Petition at 36-37. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 93 of 159 

one that is inconsistent with the requirements of the CAA as interpreted in the EPA’s 

SSM Policy. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to 326 Ind. Admin. Code 1-6-4(a). The EPA noted at that time that even if it were 

to interpret 326 Ind. Admin. Code 1-6-4(a) to be an affirmative defense applicable in an 

enforcement context, then the provision is not consistent with the EPA’s 

recommendations for such affirmative defenses in the EPA’s SSM Policy interpreting the 

CAA. By purporting to create a bar to enforcement that applies not just to monetary 

penalties but also to injunctive relief, and by including criteria inconsistent with those 

recommended by the EPA for affirmative defense provisions, this provision is 

inconsistent with the requirements of CAA sections 113 and 304. For these reasons, the 

EPA previously proposed to find that 326 Ind. Admin. Code 1-6-4(a) is substantially 

inadequate to meet CAA requirements and proposed to issue a SIP call with respect to 

this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for 326 Ind. Admin. Code 1-6-4(a). The EPA is 

proposing to revise its interpretation of the CAA with respect to affirmative defense 

provisions in SIPs. Previously the EPA assessed whether such provisions met certain 

requirements, such as being limited to monetary penalties rather than injunctive relief and 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 94 of 159 

containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

To the extent that 326 Ind. Admin. Code 1-6-4(a) provides only a defense rather 

than an exemption, the EPA believes that it creates an impermissible affirmative defense 

for violations of SIP emission limits. The provision would operate to limit the jurisdiction 

of the federal court in an enforcement action and to preclude both liability and any form 

of judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA believes that 

this provision interferes with the intended enforcement structure of the CAA, through 

which parties may seek to bring enforcement actions for violations of SIP emission limits 

and courts may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find 326 Ind. Admin. Code 1-6-4(a) 

substantially inadequate to meet CAA requirements and the EPA is thus proposing to 

issue a SIP call with respect to this provision. The EPA notes that in this SNPR it is only 

addressing this provision with respect to its deficiency as an affirmative defense and is 

not revising its February 2013 proposal notice with respect to the other separate bases for 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 95 of 159 

the finding of substantial inadequacy for the provision. 

3. Michigan 

a. Petitioner’s Analysis 

The Petitioner objected to a generally applicable provision in Michigan’s SIP that 

provides for an affirmative defense to monetary penalties for violations of otherwise 

applicable SIP emission limitations during periods of startup and shutdown (Mich. 

Admin. Code r. 336.1916).47 The Petitioner objected to this provision on multiple 

grounds, including: (i) that one of the criteria in the affirmative defense provision, Mich. 

Admin. Code r. 336.1916, makes the defense available to a single source or small group 

of sources as long as such source did not “cause[] an exceedance of the national ambient 

air quality standards or any applicable prevention of significant deterioration increment” 

thereby applying to sources with the “potential” to cause violations of the NAAQS 

contrary to the recommendations of EPA’s 1999 SSM Guidance; and (ii) that the 

affirmative defense provision is available for violations of “an applicable emission 

limitation,” which Petitioner argued could be construed by a court to include “limits 

derived from federally promulgated technology based standards, such as NSPSs and 

NESHAPs,” contrary to EPA’s interpretation of the CAA in the 1999 SSM Guidance to 

preclude SIP-based affirmative defenses for violations of these federal technology-based 

standards. 

b. The EPA’s Prior Proposal 

 

47 Petition at 44-46. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 96 of 159 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to Mich. Admin. Code r. 336.1916, which provides for an affirmative defense to 

violations of applicable emission limitations during startup and shutdown events. The 

EPA noted at that time that an affirmative defense for excess emissions that occur during 

planned events such as startup and shutdown was contrary to the EPA’s then current 

interpretation of the CAA to allow such affirmative defenses only for events beyond the 

control of the source, i.e., during malfunctions. In the February 2013 proposal notice, the 

EPA proposed to revise its SSM Policy to reflect this interpretation of the CAA, and to 

update the recommendations it previously made concerning affirmative defense 

provisions applicable to startup and shutdown events in the 1999 SSM Guidance. For this 

reason, the EPA previously proposed to find that Mich. Admin. Code r. 336.1916 is 

substantially inadequate to meet CAA requirements and proposed to issue a SIP call with 

respect to this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for Mich. Admin. Code r. 336.1916. The EPA is 

proposing to revise its interpretation of the CAA with respect to affirmative defense 

provisions in SIPs. Previously the EPA assessed whether such provisions met certain 

requirements, such as being limited to monetary penalties rather than injunctive relief and 

containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 97 of 159 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets Mich. Admin. Code r. 336.1916 to provide an affirmative 

defense that operates to limit the jurisdiction of the federal court in an enforcement action 

and to preclude both liability and any form of judicial relief contemplated in CAA 

sections 113 and 304. The fact that this affirmative defense applies during planned and 

predictable events exacerbates this problem, but even if the provision were applicable 

only to genuine malfunction events it is not a permissible SIP provision. Thus, the EPA 

believes that this provision interferes with the intended enforcement structure of the 

CAA, through which parties may seek to bring enforcement actions for violations of SIP 

emission limits and courts may exercise their jurisdiction to determine what, if any, relief 

is appropriate. 

For these reasons, the EPA is proposing to find Mich. Admin. Code r. 336.1916 

substantially inadequate to meet CAA requirements and the EPA is thus proposing to 

issue a SIP call with respect to this provision. 

E. Affected States and Local Jurisdictions in EPA Region VI 

1. Arkansas 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 98 of 159 

a. Petitioner’s Analysis 

The Petitioner objected to two provisions in the Arkansas SIP as inconsistent with 

the CAA and the EPA’s SSM Policy.48 One of these provisions, Reg. 19.602, provides an 

“affirmative defense” applicable to violations by sources in certain circumstances. The 

Petitioner objected to Reg. 19.602 because it provides a “complete affirmative defense” 

for excess emissions that occur during emergency conditions. The Petitioner argued that 

this provision, which the state may have modeled after the EPA’s title V regulations, is 

impermissible because its application is not clearly limited to operating permits. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to Reg. 19.602. The EPA explained its view that Reg. 19.602 is an impermissible 

affirmative defense provision because it does not explicitly limit the defense to monetary 

penalties, it establishes criteria that are inconsistent with those recommended in the 

EPA’s SSM Policy, and it can be read to create different or additional defenses from 

those that are provided in underlying federal technology-based emission limitations. As a 

consequence, the EPA reasoned that Reg. 19.602 is inconsistent with the requirements for 

SIP provisions in CAA sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). For these 

 

48 Petition at 24. The Petitioner cites to 014-01-1 Ark. Code R. §§ 19.1004(H) and 

19.602. The EPA interprets these citations as references to Reg. 19.1004(H) and Reg. 

19.602 of the Arkansas Pollution Control & Ecology Commission (APC&EC), 

Regulation No. 19 – Regulations of the Arkansas Plan of Implementation for Air 

Pollution Control, as approved by the EPA on Apr. 12, 2007 (72 FR 18394). For ease of 

description, we refer herein to Reg. 19.602. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 99 of 159 

reasons, the EPA previously proposed to find that Reg. 19.602 is substantially inadequate 

to meet CAA requirements and proposed to issue a SIP call with respect to this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for Reg. 19.602. The EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Previously the EPA assessed whether such provisions met certain requirements, such as 

being limited to monetary penalties rather than injunctive relief and containing 

sufficiently robust criteria to assure that the defense applied only in appropriately narrow 

circumstances. Now, the Agency must evaluate such provisions to determine whether 

they are constructed in a way that would purport to preclude federal court jurisdiction 

under section 113 to assess civil penalties or other forms of relief for violations of SIP 

emission limits, to prevent courts from considering the statutory factors for the 

assessment of civil penalties under section 113 or to interfere with the rights of litigants 

to pursue enforcement consistent with their rights under the citizen suit provision of 

section 304. 

The EPA interprets Reg. 19.602 to provide an affirmative defense that operates to 

limit the jurisdiction of the federal court in an enforcement action and to preclude both 

liability and any form of judicial relief contemplated in CAA sections 113 and 304. Thus, 

the EPA believes that this provision interferes with the intended enforcement structure of 

the CAA, through which parties may seek to bring enforcement actions for violations of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 100 of 159 

SIP emission limits and courts may exercise their jurisdiction to determine what, if any, 

relief is appropriate. 

For these reasons, the EPA is proposing to find Reg. 19.602 substantially 

inadequate to meet CAA requirements and the EPA is thus proposing to issue a SIP call 

with respect to this provision. The EPA notes that in this SNPR it is only addressing this 

provision with respect to its deficiency as an affirmative defense provision and is not 

revising its February 2013 proposal with respect to the proposed action on the other 

provision in the Arkansas SIP that is at issue in the Petition. 

2. New Mexico 

a. Petitioner’s Analysis 

The Petitioner objected to three provisions in the New Mexico SIP that provide 

affirmative defenses for excess emissions that occur during malfunctions (20.2.7.111 

NMAC), during startup and shutdown (20.2.7.112 NMAC), and during emergencies 

(20.2.7.113 NMAC).49 The Petitioner objected to the inclusion of these provisions in the 

SIP based on its view that affirmative defense provisions are always inconsistent with 

CAA requirements. The Petitioner also argued that each of these affirmative defenses is 

generally available to all sources, which is in contravention of the EPA’s 

recommendation in the SSM Policy that affirmative defenses should not be available to 

 

49 Petition at 54-57. The EPA interprets the Petitioner’s reference to N.M. Code R. § 

20.2.7.111, N.M. Code R. § 20.2.7.112 and N.M. Code R. § 20.2.7.113 as citations to 

20.2.7.111 NMAC, 20.2.7.112 NMAC and 20.2.7.113 NMAC, as approved by the EPA 

on Sept. 14, 2009 (74 FR 46910) (hereinafter referred to as 20.2.7.111 NMAC, 

20.2.7.112 NMAC and 20.2.7.113 NMAC). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 101 of 159 

“a single source or groups of sources that has the potential to cause an exceedance of the 

NAAQS.” Finally, the Petitioner argued that the affirmative defense provision applicable 

to emergency events is impermissible because it was modeled after the EPA’s title V 

regulations, which are not meant to apply to SIP provisions. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to 20.2.7.112 NMAC, which includes an affirmative defense applicable during 

startup and shutdown events that is contrary to the EPA’s interpretation of the CAA. The 

EPA noted at that time that an affirmative defense for excess emissions that occur during 

planned events such as startup and shutdown was contrary to the EPA’s current 

interpretation of the CAA to allow such affirmative defenses only for events beyond the 

control of the source, i.e., during malfunctions. In the February 2013 proposal notice, the 

EPA proposed to revise its SSM Policy to reflect this interpretation of the CAA, and to 

update the recommendations it previously made concerning affirmative defense 

provisions applicable to startup and shutdown events in the 1999 SSM Guidance. The 

EPA also proposed to grant the Petition with respect to 20.2.7.111 NMAC, which 

includes an affirmative defense applicable during malfunction events. The EPA 

previously reasoned that this provision is inconsistent with the CAA because it neither 

limits the defense to only those sources that do not have the potential to cause 

exceedances of the NAAQS or PSD increments nor requires sources to make an “after the 

fact” showing that no such exceedances actually occurred as an element of the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 102 of 159 

affirmative defense. Finally, the EPA proposed to grant the Petition with respect to 

20.2.7.113 NMAC. The EPA previously stated its belief that this provision is an 

impermissible affirmative defense because it does not explicitly limit the defense to 

monetary penalties, it establishes criteria that are inconsistent with those in the EPA’s 

SSM Policy, and it can be read to create different or additional defenses from those that 

are provided in underlying federal technology-based emission limitations. Thus, the EPA 

previously proposed to find that all three of these provisions are inconsistent with CAA 

sections 110(a)(2)(A), 110(a)(2)(C) and 302(k), and with respect to CAA sections 113 

and 304. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for the affirmative defense provisions applicable 

to excess emissions that occur during malfunctions (20.2.7.111 NMAC), during startup 

and shutdown (20.2.7.112 NMAC), and during emergencies 20.2.7.113 NMAC). The 

EPA is proposing to revise its interpretation of the CAA with respect to affirmative 

defense provisions in SIPs. Previously the EPA assessed whether such provisions met 

certain requirements, such as being limited to monetary penalties rather than injunctive 

relief and containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 103 of 159 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets 20.2.7.111 NMAC and 20.2.7.112 NMAC to provide 

affirmative defenses that operate to limit the jurisdiction of the federal court in an 

enforcement action and to limit the authority of the court to impose monetary penalties as 

contemplated in CAA sections 113 and 304. As to 20.2.7.113 NMAC, the EPA interprets 

this provision to operate to limit the jurisdiction of the federal court in an enforcement 

action and to limit the authority of the court to impose any form of relief contemplated in 

CAA sections 113 and 304. Thus, the EPA believes that each of these provisions 

interferes with the intended enforcement structure of the CAA, through which parties 

may seek to bring enforcement actions for violations of SIP emission limits and courts 

may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find 20.2.7.111 NMAC, 20.2.7.112 

NMAC and 20.2.7.113 NMAC substantially inadequate to meet CAA requirements and 

the EPA is thus proposing to issue a SIP call with respect to these provisions. 

3. New Mexico: Albuquerque-Bernalillo County 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 104 of 159 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified three affirmative defense 

provisions in the SIP for the state of New Mexico that apply in the AlbuquerqueBernalillo County area. These provisions provide affirmative defenses available to 

sources for excess emissions that occur during malfunctions (20.11.49.16.A NMAC), 

during startup and shutdown (20.11.49.16.B NMAC) and during emergencies 

(20.11.49.16.C NMAC). The EPA acknowledges that it explicitly approved these 

affirmative defense provisions in 2010, after ascertaining that they were consistent with 

the Agency’s interpretation of the CAA and its recommendations for such provisions in 

the 1999 SSM Guidance, applicable at that point in time.50 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

 

50 See, “Approval and Promulgation of Implementation Plans; Albuquerque-Bernalillo 

County, NM; Excess Emissions,” 75 FR 5698 (Feb. 4, 2010). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 105 of 159 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Although the EPA previously determined that 20.11.49.16.A NMAC, 20.11.49.16.B 

NMAC and 20.11.49.16.C NMAC were consistent with CAA requirements, the Agency 

now believes that these provisions impermissibly purport to alter or eliminate the 

jurisdiction of federal courts to assess penalties for violations of SIP emission limits. In 

the case of the affirmative defenses applicable to malfunctions and to startup and 

shutdown, the provisions set forth the elements of an affirmative defense to be asserted 

by sources in the event of violations during such events. In the case of the affirmative 

defense applicable to emergencies, the provision sets forth the elements of an affirmative 

defense to be asserted in the event of violations during emergencies. For each of these 

affirmative defense provisions, if the source is able to establish that it met each of the 

specified criteria to a trier of fact in an enforcement proceeding, then the provision 

purports to bar any civil penalties for those violations (and in the case of the affirmative 

defense for emergencies could be construed to bar other forms of relief as well). 

Accordingly, the EPA believes that each of these affirmative defense provisions is 

inconsistent with the fundamental enforcement structure of the CAA and the EPA thus 

believes that these provisions are not consistent with CAA requirements for SIP 

provisions. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 106 of 159 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for the affirmative defense provisions applicable to excess 

emissions that occur during malfunctions (20.11.49.16.A NMAC), during startup and 

shutdown (20.11.49.16.B NMAC) and during emergencies (20.11.49.16.C NMAC). The 

EPA is proposing to revise its interpretation of the CAA with respect to affirmative 

defense provisions in SIPs. Previously the EPA assessed whether such provisions met 

certain requirements, such as being limited to monetary penalties rather than injunctive 

relief and containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets 20.11.49.16.A NMAC and 20.11.49.16.B NMAC to provide 

affirmative defenses that operate to limit the jurisdiction of the federal court in an 

enforcement action and to limit the authority of the court to impose monetary penalties as 

contemplated in CAA sections 113 and 304. As to 20.11.49.16.C NMAC, the EPA 

interprets this provision to operate to limit the jurisdiction of the federal court in an 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 107 of 159 

enforcement action and to limit the authority of the court to impose any form of relief 

contemplated in CAA sections 113 and 304. Thus, the EPA believes that each of these 

provisions interferes with the intended enforcement structure of the CAA, through which 

parties may seek to bring enforcement actions for violations of SIP emission limits and 

courts may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find 20.11.49.16.A NMAC, 

20.11.49.16.B NMAC and 20.11.49.16.C NMAC substantially inadequate to meet CAA 

requirements and the EPA is thus proposing to issue a SIP call with respect to these 

provisions. The EPA notes that removal of 20.11.49.16.A NMAC, 20.11.49.16.B NMAC 

and 20.11.49.16.C NMAC from the SIP will render 20.11.49.16.D NMAC, 

20.11.49.16.E, 20.11.49.15.B (15) (concerning reporting by a source of intent to assert an 

affirmative defense for a violation), a portion of 20.11.49.6 NMAC (concerning the 

objective of establishing affirmative defense provisions) and 20.11.49.18 NMAC 

(concerning actions where a determination has been made under 20.11.49.16.E NMAC) 

superfluous and no longer operative, and the EPA thus recommends that these provisions 

be removed as well. 

4. Texas 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 108 of 159 

provisions in SIPs. As part of its review, the EPA has identified four affirmative defense 

provisions in the SIP for the state of Texas. These provisions provide affirmative 

defenses available to sources for excess emissions that occur during upsets (30 TAC 

101.222(b)), unplanned events (30 TAC 101.222(c)), upsets with respect to opacity limits 

(30 TAC 101.222(d)) and unplanned events with respect to opacity limits (30 TAC 

101.222(e)).51 The EPA acknowledges that it explicitly approved these affirmative 

defense provisions in 2010, after ascertaining that they were consistent with the Agency’s 

interpretation of the CAA and its recommendations for such provisions in the 1999 SSM 

Guidance, applicable at that point in time. Moreover, the EPA defended its approval of 

these specific provisions (as well as its disapproval of related provisions relevant to 

affirmative defenses for planned events) in litigation in the U.S. Court of Appeals for the 

5th Circuit. 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

 

51 The EPA notes that “upsets” and “unplanned events” in these provisions are what are 

more commonly referred to as malfunctions, as confirmed by the state at the time the 

EPA approved these provisions as part of the SIP. See, “Approval and Promulgation of 

Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, 

Maintenance, and Malfunction,” 75 FR 68989 (Nov. 10, 2010). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 109 of 159 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Although the EPA previously determined that 30 TAC 101.222(b), 30 TAC 101.222(c), 

30 TAC 101.222(d) and 30 TAC 101.222(e) were consistent with CAA requirements, the 

Agency now believes that these provisions impermissibly purport to alter or eliminate the 

jurisdiction of federal courts to assess penalties for violations of SIP emission limits. For 

all of these affirmative defenses applicable to upsets and unplanned events, the provisions 

set forth the elements of an affirmative defense to be asserted by sources in the event of 

violations during such events. For each of these affirmative defense provisions, if the 

source is able to establish that it met each of the specified criteria to a trier of fact in an 

enforcement proceeding, then the provision purports to bar any civil penalties for those 

violations. Accordingly, the EPA believes that each of these affirmative defense 

provisions is inconsistent with the fundamental enforcement structure of the CAA and the 

EPA thus believes that these provisions are not consistent with CAA requirements for 

SIP provisions. 

b. The EPA’s Proposal 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 110 of 159 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for the affirmative defense provisions applicable to excess 

emissions that occur during upsets (30 TAC 101.222(b)), unplanned events (30 TAC 

101.222(c)), upsets with respect to opacity limits (30 TAC 101.222(d)), and unplanned 

events with respect to opacity limits (30 TAC 101.222(e)). The EPA is proposing to 

revise its interpretation of the CAA with respect to affirmative defense provisions in 

SIPs. Previously the EPA assessed whether such provisions met certain requirements, 

such as being limited to monetary penalties rather than injunctive relief and containing 

sufficiently robust criteria to assure that the defense applied only in appropriately narrow 

circumstances. Now, the Agency must evaluate such provisions to determine whether 

they are constructed in a way that would purport to preclude federal court jurisdiction 

under section 113 to assess civil penalties or other forms of relief for violations of SIP 

emission limits, to prevent courts from considering the statutory factors for the 

assessment of civil penalties under section 113 or to interfere with the rights of litigants 

to pursue enforcement consistent with their rights under the citizen suit provision of 

section 304. 

The EPA interprets 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d), 

and 30 TAC 101.222(e) to provide affirmative defenses that operate to limit the 

jurisdiction of the federal court in an enforcement action and to limit the authority of the 

court to impose monetary penalties as contemplated in CAA sections 113 and 304. Thus, 

the EPA believes that each of these provisions interferes with the intended enforcement 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 111 of 159 

structure of the CAA, through which parties may seek to bring enforcement actions for 

violations of SIP emission limits and courts may exercise their jurisdiction to determine 

what, if any, relief is appropriate. The EPA appreciates the efforts previously undertaken 

by the state to amend its SIP to make it consistent with the CAA, as interpreted in the 

Agency’s 1999 SSM Guidance, but the EPA must now revise its SSM Policy with respect 

to affirmative defense provisions in SIPs. 

For these reasons, the EPA is proposing to find 30 TAC 101.222(b), 30 TAC 

101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e) substantially inadequate to meet 

CAA requirements and the EPA is thus proposing to issue a SIP call with respect to these 

provisions. The EPA notes that removal of these four provisions from the SIP will render 

cross-references to these provisions in 30 TAC 101.221(e) (as it applies to 30 TAC 

101.222(b)–(e)), 30 TAC 101.222(f) and 30 TAC 101.222(g) superfluous and no longer 

operative, and the EPA thus recommends that these provisions be removed as well. 

F. Affected State in EPA Region VIII: Colorado 

1. Petitioner’s Analysis 

The Petitioner objected to two affirmative defense provisions in the Colorado SIP 

that provide for affirmative defenses to qualifying sources during malfunctions (5 Colo. 

Code Regs § 1001-2(II.E)) and during periods of startup and shutdown (5 Colo. Code 

Regs § 1001-2(II.J)).52 The Petitioner acknowledged that this state has correctly revised 

its SIP in important ways in order to be consistent with CAA requirements, as interpreted 

 

52 Petition at 25-27. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 112 of 159 

in the EPA’s SSM Policy, including providing affirmative defense provisions that are 

limited to monetary penalties, that do not apply in actions to enforce federal standards 

such as NSPS or NESHAP approved into the SIP, and that meet “almost word for word” 

the recommendations of the 1999 SSM Guidance. Nevertheless, the Petitioner had two 

concerns with these SIP provisions. 

First, the Petitioner objected to both of these provisions based on its assertion that 

the CAA allows no affirmative defense provisions in SIPs. Second, the Petitioner asserted 

that even if affirmative defense provisions were permissible under the CAA, the state had 

properly followed EPA guidance in the affirmative defense provision applicable to 

startup and shutdown events but failed to do so in the affirmative defense provision 

applicable to malfunctions. Specifically, the Petitioner argued that the EPA’s own 

guidance for affirmative defenses recommended that they “are not appropriate where a 

single source or a small group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments.”53 Instead, the state’s affirmative defense for malfunction 

events is potentially available to any source, if it can establish that the excess emissions 

during the event did not result in exceedances of ambient air quality standards that could 

be attributed to the source.54 The Petitioner objected to this as not merely inconsistent 

with the EPA’s 1999 SSM Guidance but also as an approach “that does not have the same 

deterrent effect” on sources and that would not have the same effects on sources to assure 

 

53 Id. at 25. 54 See, 5 Colo. Code Regs § 1001-2(II.E.1.j). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 113 of 159 

that they comply at all times in order to avoid violations. As a practical matter, the 

Petitioner also argued that including this element to the affirmative defense could “mire 

enforcement proceedings in the question of whether or not the NAAQS or PSD 

increments were exceeded as a matter of fact.” 

2. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to 5 Colo. Code Regs § 1001-2(II.J) because it provides an affirmative defense for 

violations due to excess emissions applicable during startup and shutdown events, 

contrary to the EPA’s interpretation of the CAA. The EPA noted at that time that an 

affirmative defense for excess emissions that occur during planned events such as startup 

and shutdown was contrary to the EPA’s then current interpretation of the CAA to allow 

such affirmative defenses only for events beyond the control of the source, i.e., during 

malfunctions. In the February 2013 proposal notice, the EPA proposed to revise its SSM 

Policy to reflect this interpretation of the CAA, and to update the recommendations it 

previously made concerning affirmative defense provisions applicable to startup and 

shutdown events in the 1999 SSM Guidance. For these reasons, the EPA previously 

proposed to find that 5 Colo. Code Regs § 1001-2(II.J) is substantially inadequate to meet 

CAA requirements and proposed to issue a SIP call with respect to this provision. 

The EPA previously proposed to deny the Petition with respect to 5 Colo. Code 

Regs § 1001-2(II.E), because this provision includes an affirmative defense applicable to 

malfunction events that is consistent with the requirements of the CAA, as interpreted by 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 114 of 159 

the EPA in the SSM Policy. In particular, the EPA proposed to deny the Petition with 

respect to the claim that this provision is inconsistent with the CAA because it is 

available to sources or groups of sources that might have the potential to cause an 

exceedance of the NAAQS or PSD increments. The EPA reasoned that an acceptable 

alternative approach is to require the source to establish, as an element of the affirmative 

defense, that the excess emissions in question did not cause such impacts. The EPA noted 

in the February 2013 proposal notice that it was updating its previous guidance 

recommendations to states for SIPs in the SSM Policy in order to indicate that in lieu of 

restricting the application of an affirmative defense provision only to sources without the 

potential to cause NAAQS violations, the state could elect to require a source to prove 

that the excess emissions did not cause an exceedance of the NAAQS or PSD increments 

as an element of the defense instead. Accordingly, the EPA previously proposed to find 

that 5 Colo. Code Regs § 1001-2(II.E) is consistent with CAA requirements and declined 

to make a finding of substantial inadequacy with respect to this provision. 

3. The EPA’s Revised Proposal 

In this SNPR, the EPA is proposing to revise the basis for the finding of 

substantial inadequacy and the SIP call for the affirmative defense provisions applicable 

to excess emissions that occur during startup and shutdown in 5 Colo. Code Regs § 1001-

2(II.J). The EPA is also reversing its prior denial of the Petition with respect to the 

affirmative defense provision applicable to malfunctions in 5 Colo. Code Regs § 1001-

2(II.E) and is proposing to find that provision substantially inadequate and to issue a SIP 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 115 of 159 

call for that provision as well. The EPA is proposing to revise its interpretation of the 

CAA with respect to affirmative defense provisions in SIPs. Previously the EPA assessed 

whether such provisions met certain requirements, such as being limited to monetary 

penalties rather than injunctive relief and containing sufficiently robust criteria to assure 

that the defense applied only in appropriately narrow circumstances. Now, the Agency 

must evaluate such provisions to determine whether they are constructed in a way that 

would purport to preclude federal court jurisdiction under section 113 to assess civil 

penalties or other forms of relief for violations of SIP emission limits, to prevent courts 

from considering the statutory factors for the assessment of civil penalties under section 

113 or to interfere with the rights of litigants to pursue enforcement consistent with their 

rights under the citizen suit provision of section 304. 

The EPA interprets 5 Colo. Code Regs § 1001-2(II.J) and 5 Colo. Code Regs § 

1001-2(II.E) to provide affirmative defenses that operate to limit the jurisdiction of the 

federal court in an enforcement action to assess monetary penalties under certain 

circumstances as contemplated in CAA sections 113 and 304. Thus, the EPA believes 

that these provisions interfere with the intended enforcement structure of the CAA, 

through which parties may seek to bring enforcement actions for violations of SIP 

emission limits and courts may exercise their jurisdiction to determine what, if any, relief 

is appropriate. 

For these reasons, the EPA is proposing to find 5 Colo. Code Regs § 1001-2(II.J) 

and 5 Colo. Code Regs § 1001-2(II.E) substantially inadequate to meet CAA 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 116 of 159 

requirements and the EPA is thus proposing to issue a SIP call with respect to these 

provisions. 

G. Affected States and Local Jurisdictions in EPA Region IX 

1. Arizona 

a. Petitioner’s Analysis 

The Petitioner objected to two provisions in the Arizona Department of 

Environmental Quality’s (ADEQ) Rule R18-2-310, which provide affirmative defenses 

for excess emissions during malfunctions (AAC Section R18-2-310(B)) and for excess 

emissions during startup or shutdown (AAC Section R18-2- 310(C)).55 First, the 

Petitioner asserted that all affirmative defenses for excess emissions are inconsistent with 

the CAA and should be removed from the Arizona SIP. 

Additionally, quoting from the EPA’s recommendation in the SSM Policy that 

such affirmative defenses should not be available to “a single source or small group of 

sources [that] has the potential to cause an exceedance of the NAAQS or PSD 

increments,” the Petitioner contended that “sources with the power to cause an 

exceedance should be strictly controlled at all times, not just when they actually cause an 

exceedance.”56 Although acknowledging that R18-2-310 contains some limitations to 

address this issue, the Petitioner argued that the limitations in the SIP provision do not 

reduce the incentive for such sources to emit at levels close to those that would violate a 

 

55 Petition at 20-22. 

56 Petition at 20. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 117 of 159 

NAAQS or PSD increment in the way that entirely disallowing affirmative defenses for 

these types of sources would. Accordingly, the Petitioner requested that the EPA require 

Arizona either to remove R18-2-310(B) and (C) from the SIP entirely or to revise the rule 

so that affirmative defenses “are not available to a single source or one of a small group 

of sources who have the potential to cause an exceedance of the NAAQS.” 

Second, the Petitioner asserted that the provision applicable to startup and 

shutdown periods (R18-2-310(C)) does not include an explicit requirement for a source 

seeking to establish an affirmative defense to prove that “the excess emissions were not 

part of a recurring pattern indicative of inadequate design, operation, or maintenance.” 

The Petitioner provided a table specifically comparing the provisions in R18-2-310(C) 

against the EPA’s recommended criteria for affirmative defense provisions in the 1999 

SSM Guidance to show that R18-2-310(C) does not contain a specific provision to 

address this recommended criterion and stated that the SIP provision should be revised to 

require such a demonstration. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to deny the Petition with 

respect to the arguments concerning ADEQ’s affirmative defense provisions for 

malfunctions in R18-2-310(B) because this provision is consistent with the requirements 

of the CAA, as interpreted by the EPA in the SSM Policy. In particular, the EPA 

proposed to deny the Petition with respect to the claim that this provision is inconsistent 

with the CAA because it is available to sources or groups of sources that might have the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 118 of 159 

potential to cause an exceedance of the NAAQS or PSD increments. The EPA reasoned 

that an acceptable alternative approach is to require the source to establish, as an element 

of the affirmative defense, that the excess emissions in question did not cause such 

impacts. The EPA noted in the February 2013 proposal notice that it was updating its 

previous guidance recommendations to states for SIPs in the SSM Policy in order to 

indicate that in lieu of restricting the application of an affirmative defense provision only 

to sources without the potential to cause NAAQS violations, the state could elect to 

require a source to prove that the excess emissions did not cause a violation of the 

NAAQS as an element of the defense instead. Accordingly, the EPA previously proposed 

to find that R18-2-310(B) is consistent with CAA requirements and declined to make a 

finding of substantial inadequacy with respect to this provision. 

With respect to the arguments concerning ADEQ’s affirmative defense provisions 

for startup and shutdown periods in R18-2- 310(C), the EPA proposed to grant the 

Petition because it provides an affirmative defense for violations due to excess emissions 

applicable during startup and shutdown events, contrary to the EPA’s current 

interpretation of the CAA. The EPA noted at that time that an affirmative defense for 

excess emissions that occur during planned events such as startup and shutdown was 

contrary to the EPA’s then current interpretation of the CAA to allow such affirmative 

defenses only for events beyond the control of the source, i.e., during malfunctions. In the 

February 2013 proposal notice, the EPA proposed to revise its SSM Policy to reflect this 

interpretation of the CAA, and to update the recommendations it previously made 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 119 of 159 

concerning affirmative defense provisions applicable to startup and shutdown events in 

the 1999 SSM Guidance. For these reasons, the EPA previously proposed to find that 

R18-2-310(C) is substantially inadequate to meet CAA requirements and proposed to 

issue a SIP call with respect to this provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is reversing its prior proposed denial of the Petition with 

respect to the affirmative defense provision applicable to malfunctions in R18-2-310(B) 

and is proposing to find that provision substantially inadequate and to issue a SIP call for 

that provision. The EPA is also revising the prior basis for the finding of substantial 

inadequacy and the SIP call for the affirmative defense provisions applicable to excess 

emissions that occur during startup and shutdown in R18-2-310(C). The EPA is 

proposing to revise its interpretation of the CAA with respect to affirmative defense 

provisions in SIPs. Previously the EPA assessed whether such provisions met certain 

requirements, such as being limited to monetary penalties rather than injunctive relief and 

containing sufficiently robust criteria to assure that the defense applied only in 

appropriately narrow circumstances. Now, the Agency must evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 120 of 159 

of section 304. 

The EPA interprets R18-2-310(B) and R18-2-310(C) to provide affirmative 

defenses that operate to limit the jurisdiction of the federal court in an enforcement action 

to assess monetary penalties under certain circumstances as contemplated in CAA 

sections 113 and 304. Thus, the EPA believes that these provisions interfere with the 

intended enforcement structure of the CAA, through which parties may seek to bring 

enforcement actions for violations of SIP emission limits and courts may exercise their 

jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find R18-2-310(B) and R18-2-310(C) 

substantially inadequate to meet CAA requirements and the EPA is thus proposing to 

issue a SIP call with respect to these provisions. 

2. Arizona: Maricopa County 

a. Petitioner’s Analysis 

The Petitioner objected to two provisions in the Maricopa County Air Pollution 

Control Regulations that provide affirmative defenses for excess emissions during 

malfunctions (Maricopa County Air Pollution Control Regulation 3, Rule 140, § 401) and 

for excess emissions during startup or shutdown (Maricopa County Air Pollution Control 

Regulation 3, Rule 140, § 402).57 These provisions in Maricopa County Air Quality 

Department (MCAQD) Rule 140 are similar to the affirmative defense provisions in 

 

57 Petition at 23. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 121 of 159 

ADEQ R18-2-310.58 

First, the Petitioner asserted that the affirmative defense provisions in Rule 140 

are problematic for the same reasons identified in the Petition with respect to ADEQ 

R18-2-310. Specifically, the Petitioner argued that affirmative defenses should not be 

allowed in any SIP and, alternatively, that to the extent affirmative defenses are 

permissible, the provisions in Rule 140 addressing exceedances of the ambient standards 

are “inappropriately permissive and do not comply with EPA guidance.” 59 Accordingly, 

the Petitioner requested that the EPA require Arizona and/or MCAQD either to remove 

these provisions from the SIP entirely or to revise them so that they are not available to a 

single source or small group of sources that has the potential to cause a NAAQS 

exceedance. Second, the Petitioner asserted that the provisions for startup and shutdown 

in Rule 140 do not include an explicit requirement for a source seeking to establish an 

affirmative defense to prove that “the excess emissions in question were not part of a 

recurring pattern indicative of inadequate design, operation, or maintenance.” The 

Petitioner argued that Rule 140 should be revised to require such a demonstration. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to deny the Petition with 

respect to the arguments concerning MCAQD’s affirmative defense provisions for 

malfunctions in Regulation 3, Rule 140, § 401 because this provision is consistent with 

 

58 Petition at 20-22. 

59 Id. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 122 of 159 

the requirements of the CAA, as interpreted by the EPA in the SSM Policy. In particular, 

the EPA proposed to deny the Petition with respect to the claim that this provision is 

inconsistent with the CAA because it is available to sources or groups of sources that 

might have the potential to cause an exceedance of the NAAQS or PSD increments. The 

EPA reasoned that an acceptable alternative approach is to require the source to establish, 

as an element of the affirmative defense, that the excess emissions in question did not 

cause such impacts. The EPA noted in the February 2013 proposal notice that it was 

updating its previous guidance recommendations to states for SIPs in the SSM Policy in 

order to indicate that in lieu of restricting the application of an affirmative defense 

provision only to sources without the potential to cause NAAQS violations, the state 

could elect to require a source to prove that the excess emissions did not cause a violation 

of the NAAQS as an element of the defense instead. Accordingly, the EPA previously 

proposed to find that Regulation 3, Rule 140, § 401 is consistent with CAA requirements 

and declined to make a finding of substantial inadequacy with respect to this provision. 

With respect to the arguments concerning ADEQ’s affirmative defense provisions 

for startup and shutdown periods in Regulation 3, Rule 140, § 402, the EPA previously 

proposed to grant the Petition because it provides an affirmative defense for violations 

due to excess emissions applicable during startup and shutdown events, contrary to the 

EPA’s interpretation of the CAA. The EPA noted at that time that an affirmative defense 

for excess emissions that occur during planned events such as startup and shutdown was 

contrary to the EPA’s then current interpretation of the CAA to allow such affirmative 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 123 of 159 

defenses only for events beyond the control of the source, i.e., during malfunctions. In the 

February 2013 proposal notice, the EPA proposed to revise its SSM Policy to reflect this 

interpretation of the CAA, and to update the recommendations it previously made 

concerning affirmative defense provisions applicable to startup and shutdown events in 

the 1999 SSM Guidance. For these reasons, the EPA previously proposed to find that 

Maricopa County Air Pollution Control Regulation 3, Rule 140, § 402 is substantially 

inadequate to meet CAA requirements and proposed to issue a SIP call with respect to 

this provision. 

c. The EPA’s Revised Proposal 

 In this SNPR, the EPA is reversing its prior proposed denial of the Petition with 

respect to the affirmative defense provision applicable to malfunctions in Regulation 3, 

Rule 140, § 401 and is proposing to find that provision substantially inadequate and to 

issue a SIP call for that provision. The EPA is also revising the prior basis for the finding 

of substantial inadequacy and the SIP call for the affirmative defense provisions 

applicable to excess emissions that occur during startup and shutdown in Regulation 3, 

Rule 140, § 402. The EPA is proposing to revise its interpretation of the CAA with 

respect to affirmative defense provisions in SIPs. Previously the EPA assessed whether 

such provisions met certain requirements, such as being limited to monetary penalties 

rather than injunctive relief and containing sufficiently robust criteria to assure that the 

defense applied only in appropriately narrow circumstances. Now, the Agency must 

evaluate such provisions to determine whether they are constructed in a way that would 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 124 of 159 

purport to preclude federal court jurisdiction under section 113 to assess civil penalties or 

other forms of relief for violations of SIP emission limits, to prevent courts from 

considering the statutory factors for the assessment of civil penalties under section 113 or 

to interfere with the rights of litigants to pursue enforcement consistent with their rights 

under the citizen suit provision of section 304. 

The EPA interprets Regulation 3, Rule 140, § 401 and Regulation 3, Rule 140, § 

402 to provide affirmative defenses that operate to limit the jurisdiction of the federal 

court in an enforcement action to assess monetary penalties under certain circumstances 

as contemplated in CAA sections 113 and 304. Thus, the EPA believes that these 

provisions interfere with the intended enforcement structure of the CAA, through which 

parties may seek to bring enforcement actions for violations of SIP emission limits and 

courts may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Regulation 3, Rule 140, § 401 and 

Regulation 3, Rule 140, § 402 substantially inadequate to meet CAA requirements and 

the EPA is thus proposing to issue a SIP call with respect to these provisions. 

3. California: Eastern Kern Air Pollution Control District 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified an affirmative defense 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 125 of 159 

provision in the SIP for the state of California applicable in the Eastern Kern Air 

Pollution Control District (APCD). The affirmative defense is included in Kern County 

“Rule 111 Equipment Breakdown.” This SIP provision provides an affirmative defense 

available to sources for excess emissions that occur during a breakdown condition (i.e., 

malfunction). 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. Kern 

County Rule 111 includes the elements of an affirmative defense to be asserted by 

sources in the event of violations during breakdown conditions. The provision defines 

“breakdown conditions” as any unforeseeable failure or malfunction of air pollution 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 126 of 159 

control equipment or monitoring equipment. If the source is able to establish that it met 

each of the specified criteria to an “air pollution control officer” (i.e., an official of the 

state or the Eastern Kern APCD), then the provision purports to bar any enforcement 

action and thus any form of remedy for the violations that occur during the malfunction. 

Accordingly, the EPA believes that the affirmative defense provision created by Kern 

County Rule 111 is inconsistent with the fundamental enforcement structure of the CAA 

and the EPA thus believes that the provision is not consistent with CAA requirements for 

SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for Kern County Rule 111 Equipment Breakdown in the California 

SIP applicable in the Eastern Kern APCD.60 The EPA is proposing to revise its 

interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Previously the EPA assessed whether such provisions met certain requirements, such as 

being limited to monetary penalties rather than injunctive relief and containing 

sufficiently robust criteria to assure that the defense applied only in appropriately narrow 

circumstances. The EPA notes that Kern County Rule 111 did not meet the Agency’s 

prior interpretation of the CAA with regard to affirmative defense provisions in SIPs. 

Regardless of that fact, however, the Agency must now evaluate such provisions to 

 

60 The EPA is proposing in this SNPR to make a finding of substantial inadequacy and to 

issue a SIP call for Kern County Rule 111 Equipment Breakdown in the California SIP as 

it applies in each the Eastern Kern APCD and the San Joaquin Valley APCD. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 127 of 159 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets Kern County “Rule 111 Equipment Breakdown” to provide an 

affirmative defense that operates to limit the jurisdiction of the federal court in an 

enforcement action and to limit the authority of the court to impose monetary penalties as 

contemplated in CAA sections 113 and 304. The provision provides that if a violating 

source meets certain criteria set forth in Rule 111, then “no enforcement action may be 

taken.” By proscribing any enforcement by any party if the source meets certain criteria, 

Rule 111 creates an affirmative defense that would preclude enforcement for excess 

emissions that would otherwise constitute a violation of the applicable SIP emission 

limitations. Thus, the EPA believes that this provision interferes with the intended 

enforcement structure of the CAA, through which parties may seek to bring enforcement 

actions for violations of SIP emission limits and courts may exercise their jurisdiction to 

determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Kern County “Rule 111 

Equipment Breakdown” substantially inadequate to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with respect to this provision. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 128 of 159 

4. California: Imperial County Air Pollution Control District 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified an affirmative defense 

provision in the SIP for the state of California applicable in the Imperial Valley APCD. 

The affirmative defense is included in Imperial County “Rule 111 Equipment 

Breakdown.” This SIP provision provides an affirmative defense available to sources for 

excess emissions that occur during a breakdown condition (i.e., malfunction). 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 129 of 159 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Imperial County Rule 111 includes the elements of an affirmative defense to be asserted 

by sources in the event of violations during breakdown conditions. The provision defines 

“breakdown conditions” as any unforeseeable failure or malfunction of air pollution 

control equipment or monitoring equipment. If the source is able to establish that it met 

each of the specified criteria to an “air pollution control officer” (i.e., an official of the 

state or the Imperial Valley APCD), then the provision purports to bar any enforcement 

action and thus any form of remedy for the violations that occur during the malfunction. 

Accordingly, the EPA believes that the affirmative defense provision created by Imperial 

County Rule 111 is inconsistent with the fundamental enforcement structure of the CAA 

and the EPA thus believes that the provision is not consistent with CAA requirements for 

SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for Imperial County “Rule 111 Equipment Breakdown” in the 

California SIP applicable in the Imperial Valley APCD. The EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Previously the EPA assessed whether such provisions met certain requirements, such as 

being limited to monetary penalties rather than injunctive relief and containing 

sufficiently robust criteria to assure that the defense applied only in appropriately narrow 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 130 of 159 

circumstances. The EPA notes that Imperial County Rule 111 did not meet the Agency’s 

prior interpretation of the CAA with regard to affirmative defense provisions in SIPs. 

Regardless of that fact, however, the Agency must now evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets Imperial County “Rule 111 Equipment Breakdown” to 

provide an affirmative defense that operates to limit the jurisdiction of the federal court in 

an enforcement action and to limit the authority of the court to impose monetary penalties 

as contemplated in CAA sections 113 and 304. The provision provides that if a violating 

source meets certain criteria set forth in Rule 111, then “no enforcement action may be 

taken.” By proscribing any enforcement by any party if the source meets certain criteria, 

Rule 111 creates an affirmative defense that would preclude enforcement for excess 

emissions that would otherwise constitute a violation of the applicable SIP emission 

limitations. Thus, the EPA believes that this provision interferes with the intended 

enforcement structure of the CAA, through which parties may seek to bring enforcement 

actions for violations of SIP emission limits and courts may exercise their jurisdiction to 

determine what, if any, relief is appropriate. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 131 of 159 

For these reasons, the EPA is proposing to find Imperial County “Rule 111 

Equipment Breakdown” substantially inadequate to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with respect to this provision. 

5. California: San Joaquin Valley Air Pollution Control District 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified affirmative defense 

provisions in the SIP for the state of California applicable in the San Joaquin Valley 

APCD. The affirmative defenses are included in: (i) Fresno County “Rule 110 Equipment 

Breakdown”; (ii) Kern County “Rule 111 Equipment Breakdown”; (iii) Kings County 

“Rule 111 Equipment Breakdown”; (iv) Madera County “Rule 113 Equipment 

Breakdown”; (v) Stanislaus County “Rule 110 Equipment Breakdown”; and (vi) Tulare 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 132 of 159 

County “Rule 111 Equipment Breakdown.”61 Each of these SIP provisions provides an 

affirmative defense available to sources for excess emissions that occur during a 

breakdown condition (i.e., malfunction). 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

 

61 The EPA notes that comparable provisions appear in the California SIP for the San 

Joaquin Valley APCD in Merced County (in “Rule 109 Equipment Breakdown”) and in 

San Joaquin County (in “Rule 110 Equipment Breakdown”). However, the EPA 

interprets these provisions to be enforcement discretion provisions, applicable only to the 

state or air district personnel. In each of these counties, the applicable rules provide that if 

the source meets certain criteria, then “the Air Pollution Control Officer may elect to take 

no enforcement action.” The EPA believes that these provisions unequivocally apply only 

to the exercise of enforcement discretion by the state or air district personnel and are not 

operative in the event of enforcement by the EPA or others under the authority of the 

citizen suit provision of CAA section 304. For this reason, the EPA is not proposing to 

make a finding of substantial inadequacy and a SIP call for these comparable provisions 

in Merced County Rule 109 and San Joaquin County Rule 110. If the state of California 

disagrees with this interpretation, the EPA anticipates that the state will inform the 

Agency of that fact though comment on this SNPR. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 133 of 159 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Fresno County Rule 110, Kern County Rule 111, Kings County Rule 111, Madera 

County Rule 113, Stanislaus County Rule 110 and Tulare County Rule 111 include the 

elements of an affirmative defense to be asserted by sources in the event of violations 

during breakdown conditions. Each of these provisions defines “breakdown conditions” 

in comparable ways as any unforeseeable failure or malfunction of air pollution control 

equipment or monitoring equipment. If the source is able to establish that it met each of 

the specified criteria to a “Control Officer” (i.e., an official of the state or the San Joaquin 

Valley APCD), then the provision purports to bar any enforcement action and thus any 

form of remedy for the violations that occur during the malfunction. Accordingly, the 

EPA believes that each of the affirmative defense provisions created by Fresno County 

Rule 110, Kern County Rule 111, Kings County Rule 111, Madera County Rule 113, 

Stanislaus County Rule 110 and Tulare County Rule 111 is inconsistent with the 

fundamental enforcement structure of the CAA and the EPA thus believes that these 

provisions are not consistent with CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for six provisions in the California SIP applicable in the San 

Joaquin Valley APCD: (i) Fresno County “Rule 110 Equipment Breakdown”; (ii) Kern 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 134 of 159 

County “Rule 111 Equipment Breakdown”; (iii) Kings County “Rule 111 Equipment 

Breakdown”; (iv) Madera County “Rule 113 Equipment Breakdown”; (v) Stanislaus 

County “Rule 110 Equipment Breakdown”; and (vi) Tulare County “Rule 111 Equipment 

Breakdown.”62 The EPA is proposing to revise its interpretation of the CAA with respect 

to affirmative defense provisions in SIPs. Previously the EPA assessed whether such 

provisions met certain requirements, such as being limited to monetary penalties rather 

than injunctive relief and containing sufficiently robust criteria to assure that the defense 

applied only in appropriately narrow circumstances. The EPA notes that Fresno County 

Rule 110, Kern County Rule 111, Kings County Rule 111, Madera County Rule 113, 

Stanislaus County Rule 110 and Tulare County Rule 111 did not meet the Agency’s prior 

interpretation of the CAA with regard to affirmative defense provisions in SIPs. 

Regardless of that fact, however, the Agency must now evaluate such provisions to 

determine whether they are constructed in a way that would purport to preclude federal 

court jurisdiction under section 113 to assess civil penalties or other forms of relief for 

violations of SIP emission limits, to prevent courts from considering the statutory factors 

for the assessment of civil penalties under section 113 or to interfere with the rights of 

litigants to pursue enforcement consistent with their rights under the citizen suit provision 

of section 304. 

The EPA interprets Fresno County Rule 110, Kern County Rule 111, Kings 

 

62 The EPA is proposing in this SNPR to make a finding of substantial inadequacy and to 

issue a SIP call for Kern County Rule 111 Equipment Breakdown in the California SIP as 

it applies in each the Eastern Kern APCD and the San Joaquin Valley APCD. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 135 of 159 

County Rule 111, Madera County Rule 113, Stanislaus County Rule 110 and Tulare 

County Rule 111 to provide affirmative defenses that operate to limit the jurisdiction of 

the federal court in an enforcement action and to limit the authority of the court to impose 

monetary penalties as contemplated in CAA sections 113 and 304. These provisions 

provide that if a violating source meets certain criteria set forth in each of the Rules, then 

“no enforcement action may be taken.” By proscribing any enforcement by any party if 

the source meets certain criteria, each of these provisions creates an affirmative defense 

that would preclude enforcement for excess emissions that would otherwise constitute a 

violation of the applicable SIP emission limitations. Thus, the EPA believes that these 

provisions interfere with the intended enforcement structure of the CAA, through which 

parties may seek to bring enforcement actions for violations of SIP emission limits and 

courts may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Fresno County “Rule 110 

Equipment Breakdown,” Kern County “Rule 111 Equipment Breakdown,” Kings County 

“Rule 111 Equipment Breakdown,” Madera County “Rule 113 Equipment Breakdown,” 

Stanislaus County “Rule 110 Equipment Breakdown” and Tulare County “Rule 111 

Equipment Breakdown” substantially inadequate to meet CAA requirements and the EPA 

is thus proposing to issue a SIP call with respect to these provisions. 

H. Affected States and Local Jurisdictions in EPA Region X 

1. Alaska 

a. Petitioner’s Analysis 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 136 of 159 

The Petitioner objected to a provision in the Alaska SIP that provides an excuse 

for “unavoidable” excess emissions that occur during SSM events, including startup, 

shutdown, scheduled maintenance and “upsets” (Alaska Admin. Code tit. 18 § 50.240).63

The provision provides: “Excess emissions determined to be unavoidable under this 

section will be excused and are not subject to penalty. This section does not limit the 

department’s power to enjoin the emission or require corrective action.” The Petitioner 

argued that this provision excuses excess emissions in violation of the CAA and the 

EPA’s SSM Policy, which require all such emissions to be treated as violations of the 

applicable SIP emission limitations. The Petitioner further argued that it is unclear 

whether the provision could be interpreted to bar enforcement actions brought by the 

EPA or citizens, because it is drafted as if the state were the sole enforcement authority. 

Finally, the Petitioner pointed out, the provision is worded as if it were an affirmative 

defense, but it uses criteria for enforcement discretion. Finally, the Petitioner pointed out, 

the provision is worded as if it were an affirmative defense, but it uses criteria more 

relevant for enforcement discretion. In other words, the Petitioner argued that the 

provision is inconsistent with the EPA’s recommendations for affirmative defense 

provisions in SIPs in the 1999 SSM Guidance. 

b. The EPA’s Prior Proposal 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to Alaska Admin. Code tit. 18 § 50.240. To the extent that this provision is 

 

63 Petition at 18-20. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 137 of 159 

intended to be an affirmative defense, the EPA believed it to be deficient to meet the 

requirements of the CAA for such provisions. The provision applies to excess emissions 

during startup, shutdown and maintenance events, contrary to the EPA’s then current 

interpretation of the CAA to allow such affirmative defenses only for malfunctions. The 

EPA noted at that time that an affirmative defense for excess emissions that occur during 

planned events such as startup and shutdown was contrary to the EPA’s then current 

interpretation of the CAA to allow such affirmative defenses only for events beyond the 

control of the source, i.e., during malfunctions. In the February 2013 proposal notice, the 

EPA proposed to revise its SSM Policy to reflect this interpretation of the CAA, and to 

update the recommendations it previously made concerning affirmative defense 

provisions applicable to startup and shutdown events in the 1999 SSM Guidance. 

Additionally, the EPA previously reasoned that the section of Alaska Admin. Code tit. 18 

§ 50.240 applying to “upsets” is inadequate because the criteria referenced are not 

sufficiently similar to those recommended in the EPA’s SSM Policy for affirmative 

defense provisions applicable to malfunctions. Thus, the EPA previously considered 

Alaska Admin. Code tit. 18 § 50.240 to be inconsistent with the fundamental 

requirements of the CAA and thus proposed to find the provision substantially inadequate 

to meet CAA requirements and to issue a SIP call with respect to the provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is revising the prior basis for the finding of substantial 

inadequacy and the SIP call for the affirmative defense provisions applicable to excess 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 138 of 159 

emissions that occur during startup, shutdown and upsets in Alaska Admin. Code tit. 18 § 

50.240. The EPA is proposing to revise its interpretation of the CAA with respect to 

affirmative defense provisions in SIPs. Previously the EPA assessed whether such 

provisions met certain requirements, such as being limited to monetary penalties rather 

than injunctive relief and containing sufficiently robust criteria to assure that the defense 

applied only in appropriately narrow circumstances. Now, the Agency must evaluate such 

provisions to determine whether they are constructed in a way that would purport to 

preclude federal court jurisdiction under section 113 to assess civil penalties or other 

forms of relief for violations of SIP emission limits, to prevent courts from considering 

the statutory factors for the assessment of civil penalties under section 113 or to interfere 

with the rights of litigants to pursue enforcement consistent with their rights under the 

citizen suit provision of section 304. 

The EPA interprets Alaska Admin. Code tit. 18 § 50.240 to provide affirmative 

defenses that operate to limit the jurisdiction of the federal court in an enforcement action 

to assess monetary penalties or impose injunctive relief under certain circumstances as 

contemplated in CAA sections 113 and 304. Thus, the EPA believes that this provision 

interferes with the intended enforcement structure of the CAA, through which parties 

may seek to bring enforcement actions for violations of SIP emission limits and courts 

may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Alaska Admin. Code tit. 18 § 

50.240 substantially inadequate to meet CAA requirements and the EPA is thus 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 139 of 159 

proposing to issue a SIP call with respect to this provision. The EPA notes that in this 

SNPR it is only addressing this provision with respect to its deficiency as an affirmative 

defense provision and is not revising its February 2013 proposal notice with respect to the 

other separate bases for the finding of substantial inadequacy of this provision. 

2. Washington 

a. Petitioner’s Analysis 

The Petitioner objected to a provision in the Washington SIP that provides an 

excuse for “unavoidable” excess emissions that occur during certain SSM events, 

including startup, shutdown, scheduled maintenance and “upsets” (Wash. Admin. Code § 

173-400-107).64 The provision provides that “[e]xcess emissions determined to be 

unavoidable under the procedures and criteria under this section shall be excused and are 

not subject to penalty.” The Petitioner argued that this provision excuses excess 

emissions, in violation of the CAA and the EPA’s SSM Policy, which require all such 

emissions to be treated as violations of the applicable SIP emission limitations. The 

Petitioner further argued that it is unclear whether the provision could be interpreted to 

bar enforcement actions brought by the EPA or citizens, because it is drafted as if the 

state were the sole enforcement authority. Finally, the Petitioner pointed out, the 

provision is worded as if it were an affirmative defense, but it uses criteria more relevant 

for enforcement discretion. 

b. The EPA’s Prior Proposal 

 

64 Petition at 71-72. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 140 of 159 

In the February 2013 proposal notice, the EPA proposed to grant the Petition with 

respect to Wash. Admin. Code § 173-400-107. The provision applies to startup, shutdown 

and maintenance events, contrary to the EPA’s then current interpretation of the CAA to 

allow such affirmative defenses only for malfunctions. The EPA noted at that time that an 

affirmative defense for excess emissions that occur during planned events such as startup, 

shutdown and maintenance was contrary to the EPA’s then current interpretation of the 

CAA to allow such affirmative defenses only for events beyond the control of the source, 

i.e., during malfunctions. In the February 2013 proposal notice, the EPA proposed to 

revise its SSM Policy to reflect this interpretation of the CAA, and to update the 

recommendations it previously made concerning affirmative defense provisions 

applicable to startup and shutdown events in the 1999 SSM Guidance.65 Furthermore, the 

EPA previously reasoned that the section of Wash. Admin. Code § 173-400-107 applying 

to “upsets” is inadequate because the criteria referenced are not sufficiently similar to 

those recommended in the EPA’s SSM Policy for affirmative defense provisions 

applicable to malfunctions. Moreover, the provision appears to bar the EPA and citizens 

from seeking penalties and injunctive relief. Thus, the EPA previously considered Wash. 

 

65 The EPA notes that its SSM Policy guidance has always stated that affirmative defense 

provisions in SIPs are not appropriate for excess emissions that occur during maintenance 

activities. The 1999 SSM Guidance only made recommendations with respect to 

affirmative defense provisions applicable to malfunctions and to startup and shutdown. 

The 1983 SSM Guidance recommended that “scheduled maintenance is a predictable 

event which can be scheduled at the discretion of the operator” and therefore 

recommended even against the exercise of enforcement discretion for violations during 

maintenance except under limited circumstances. See 1983 SSM Guidance at 

Attachment, Page 3. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 141 of 159 

Admin. Code § 173-400-107 to be inconsistent with the fundamental requirements of the 

CAA and the EPA thus proposed to find the provision substantially inadequate to meet 

CAA requirements and proposed to issue a SIP call with respect to the provision. 

c. The EPA’s Revised Proposal 

In this SNPR, the EPA is revising the prior basis for the proposed finding of 

substantial inadequacy and the proposed SIP call for the affirmative defense provisions 

applicable to excess emissions that occur during startup, shutdown, maintenance and 

upsets in Wash. Admin. Code § 173-400-107. The EPA is proposing to revise its 

interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Previously the EPA assessed whether such provisions met certain requirements, such as 

being limited to monetary penalties rather than injunctive relief and containing 

sufficiently robust criteria to assure that the defense applied only in appropriately narrow 

circumstances. Now, the Agency must evaluate such provisions to determine whether 

they are constructed in a way that would purport to preclude federal court jurisdiction 

under section 113 to assess civil penalties or other forms of relief for violations of SIP 

emission limits, to prevent courts from considering the statutory factors for the 

assessment of civil penalties under section 113 or to interfere with the rights of litigants 

to pursue enforcement consistent with their rights under the citizen suit provision of 

section 304. 

The EPA interprets Wash. Admin. Code § 173-400-107 to provide affirmative 

defenses that operate to limit the jurisdiction of the federal court in an enforcement action 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 142 of 159 

to assess monetary penalties or impose injunctive relief under certain circumstances as 

contemplated in CAA sections 113 and 304. Thus, the EPA believes that this provision 

interferes with the intended enforcement structure of the CAA, through which parties 

may seek to bring enforcement actions for violations of SIP emission limits and courts 

may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Wash. Admin. Code § 173-400-

107 substantially inadequate to meet CAA requirements and the EPA is thus proposing to 

issue a SIP call with respect to this provision. The EPA notes that in this SNPR it is only 

addressing this provision with respect to its deficiency as an affirmative defense 

provision and is not revising its February 2013 proposal notice with respect to the other 

separate bases for the finding of substantial inadequacy of this provision. 

3. Washington: Energy Facility Site Evaluation Council 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified affirmative defense 

provisions in the SIP for the state of Washington that relate to the Energy Facility Site 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 143 of 159 

Evaluation Council (EFSEC).66 The EFSEC portion of the SIP includes Wash. Admin. 

Code § 463-39-005, which adopts by reference Wash. Admin. Code § 173-400-107, 

thereby incorporating the affirmative defenses applicable to startup, shutdown, scheduled 

maintenance and “upsets” for which, as explained earlier in this SNPR, the EPA has 

proposed to find Wash. Admin. Code § 173-400-107 substantially inadequate to meet 

CAA requirements. 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

 

66 This is the state agency that reviews and authorizes the construction and operation of 

major energy facilities in Washington for all media in lieu of any other individual state or 

local agency permits. Thus these affirmative defense provisions can become embodied in 

the authorizations for such sources. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 144 of 159 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Wash. Admin. Code § 463-39-005 incorporates by reference the elements of an 

affirmative defense to be asserted by sources in the event of violations during startup, 

shutdown, scheduled maintenance and upsets. The provision provides criteria for each 

type of event. If the source is able to establish that it met each of the specified criteria, 

then the provision purports to bar any enforcement action and thus any form of remedy 

for the violations that occur during such events. The provision explicitly states that if the 

criteria are met, then the violations “shall be excused and not subject to penalty.” 

Accordingly, the EPA believes that the affirmative defenses created by Wash. Admin. 

Code § 463-39-005 through its incorporation by reference of Wash. Admin. Code § 173-

400-107 are inconsistent with the fundamental enforcement structure of the CAA and the 

EPA thus believes that the Wash. Admin. Code § 463-39-005 provision is not consistent 

with CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for Wash. Admin. Code § 463-39-005’s incorporation by reference 

of Wash. Admin. Code § 173-400-107 in the Washington SIP with respect to the EFSEC. 

The EPA is proposing to revise its interpretation of the CAA with respect to affirmative 

defense provisions in SIPs. Previously the EPA assessed whether such provisions met 

certain requirements, such as being limited to monetary penalties rather than injunctive 

relief and containing sufficiently robust criteria to assure that the defense applied only in 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 145 of 159 

appropriately narrow circumstances. The EPA notes that the affirmative defenses created 

in Wash. Admin. Code § 463-39-005 through its incorporation by reference of Wash. 

Admin. Code § 173-400-107 did not meet the Agency’s prior interpretation of the CAA 

with regard to affirmative defense provisions in SIPs. Regardless of that fact, however, 

the Agency must now evaluate such provisions to determine whether they are constructed 

in a way that would purport to preclude federal court jurisdiction under section 113 to 

assess civil penalties or other forms of relief for violations of SIP emission limits, to 

prevent courts from considering the statutory factors for the assessment of civil penalties 

under section 113 or to interfere with the rights of litigants to pursue enforcement 

consistent with their rights under the citizen suit provision of section 304. 

The EPA interprets Wash. Admin. Code § 463-39-005’s incorporation by 

reference of Wash. Admin. Code § 173-400-107 to provide affirmative defenses that 

would operate to limit the jurisdiction of the federal court in an enforcement action and to 

limit the authority of the court to impose monetary penalties as contemplated in CAA 

sections 113 and 304. The provision provides that if a violating source meets certain 

criteria incorporated by reference from Wash. Admin. Code § 173-400-107, then the 

excess emissions are “excused and not subject to penalty.” By proscribing any 

enforcement by any party if the source meets certain criteria, Wash. Admin. Code § 463-

39-005 creates affirmative defenses that would preclude enforcement for excess 

emissions that would otherwise constitute a violation of the applicable SIP emission 

limitations. Thus, the EPA believes that this provision interferes with the intended 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 146 of 159 

enforcement structure of the CAA, through which parties may seek to bring enforcement 

actions for violations of SIP emission limits and courts may exercise their jurisdiction to 

determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find Wash. Admin. Code § 463-39-

005’s incorporation by reference of Wash. Admin. Code § 173-400-107 substantially 

inadequate to meet CAA requirements and the EPA is thus proposing to issue a SIP call 

with respect to this provision. 

4. Washington: Southwest Clean Air Agency 

a. The EPA’s Evaluation 

In addition to evaluating specific affirmative defense provisions identified by the 

Petitioner, the EPA is also evaluating other affirmative defense provisions that may be 

affected by the Agency’s revision of its interpretation of CAA requirements for such 

provisions in SIPs. As part of its review, the EPA has identified affirmative defense 

provisions in the SIP for the state of Washington applicable in the portion of the state 

regulated by the Southwest Clean Air Agency (SWCAA).67 The affirmative defenses are 

included in the SIP in SWAPCA “400-107 Excess Emissions.” This SIP provision 

provides an affirmative defense available to sources for excess emissions that occur 

during startup and shutdown, maintenance and upsets (i.e., malfunctions). It is identical 

 

67 The EPA notes that the SWCAA was formerly named, and in some places in the SIP 

still appears, as the “Southwest Air Pollution Control Authority” or “SWAPCA.” The 

EPA anticipates that the name will be updated in the SIP in due course as the state revises 

the SIP. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 147 of 159 

to Wash. Admin. Code § 173-400-107 in all respects except that SWAPCA 400-107(3) 

contains a more stringent requirement for the reporting of excess emissions. 

In light of the court’s decision in NRDC v. EPA, the EPA is proposing to revise its 

SSM Policy concerning the issue of affirmative defense provisions. In particular, the EPA 

is proposing to reverse its prior recommendations to states on this issue provided in the 

1999 SSM Guidance. In that guidance, the EPA had interpreted the CAA to permit states 

to elect to create narrowly drawn affirmative defense provisions in SIPs, both for 

malfunction events and for startup and shutdown events, so long as the provisions were 

consistent with the criteria recommended by the Agency. In the February 2013 proposal 

notice, the EPA had already proposed to revise this interpretation of the CAA to permit 

states to develop affirmative defense provisions only for malfunction events and not for 

startup and shutdown events. The decision of the court in NRDC v. EPA indicates that the 

EPA needs to revise the SSM Policy yet further. 

As discussed in sections IV and V of this SNPR, the EPA is proposing to revise 

its interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

SWAPCA 400-107 Excess Emissions includes the elements of an affirmative defense to 

be asserted by sources in the event of violations during startup and shutdown, 

maintenance and upsets. The provision provides criteria for each type of event. If the 

source is able to establish that it met each of the specified criteria to “the Authority or the 

decision-making entity” (i.e., officials of the state or the SWCAA), then the provision 

purports to bar any enforcement action and thus any form of remedy for the violations 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 148 of 159 

that occur during such events. The provision explicitly states that if the criteria are met, 

then the violations “shall be excused and not subject to penalty.” Accordingly, the EPA 

believes that the affirmative defenses created by SWAPCA 400-107 are inconsistent with 

the fundamental enforcement structure of the CAA and the EPA thus believes that the 

provision is not consistent with CAA requirements for SIP provisions. 

b. The EPA’s Proposal 

In this SNPR, the EPA is proposing to make a finding of substantial inadequacy 

and to issue a SIP call for SWAPCA “400-107 Excess Emissions” in the Washington SIP 

applicable in the area regulated by SWCAA. The EPA is proposing to revise its 

interpretation of the CAA with respect to affirmative defense provisions in SIPs. 

Previously the EPA assessed whether such provisions met certain requirements, such as 

being limited to monetary penalties rather than injunctive relief and containing 

sufficiently robust criteria to assure that the defense applied only in appropriately narrow 

circumstances. The EPA notes that SWAPCA 400-107 Excess Emissions did not meet 

the Agency’s prior interpretation of the CAA with regard to affirmative defense 

provisions in SIPs. Regardless of that fact, however, the Agency must now evaluate such 

provisions to determine whether they are constructed in a way that would purport to 

preclude federal court jurisdiction under section 113 to assess civil penalties or other 

forms of relief for violations of SIP emission limits, to prevent courts from considering 

the statutory factors for the assessment of civil penalties under section 113 or to interfere 

with the rights of litigants to pursue enforcement consistent with their rights under the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 149 of 159 

citizen suit provision of section 304. 

The EPA interprets SWAPCA “400-107 Excess Emissions” to provide 

affirmative defenses that operate to limit the jurisdiction of the federal court in an 

enforcement action and to limit the authority of the court to impose monetary penalties as 

contemplated in CAA sections 113 and 304. The provision provides that if a violating 

source meets certain criteria set forth in SWAPCA 400-107, then the excess emissions 

are “excused and not subject to penalty.” By proscribing any enforcement by any party if 

the source meets certain criteria, SWAPCA 400-107 creates affirmative defenses that 

would preclude enforcement for excess emissions that would otherwise constitute a 

violation of the applicable SIP emission limitations. Thus, the EPA believes that this 

provision interferes with the intended enforcement structure of the CAA, through which 

parties may seek to bring enforcement actions for violations of SIP emission limits and 

courts may exercise their jurisdiction to determine what, if any, relief is appropriate. 

For these reasons, the EPA is proposing to find SWAPCA “400-107 Excess 

Emissions” substantially inadequate to meet CAA requirements and the EPA is thus 

proposing to issue a SIP call with respect to this provision. 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review 

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a 

“significant regulatory action” because it raises novel legal or policy issues. Accordingly, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 150 of 159 

the EPA submitted this action to the Office of Management and Budget (OMB) for 

review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and 

any changes made in response to OMB recommendations have been documented in the 

docket for this action. 

B. Paperwork Reduction Act 

This action does not impose any new information collection burden. The EPA’s 

SPNR, in response to the Petition, merely states the EPA’s current interpretation of the 

statutory requirements of the CAA and does not require states to collect any additional 

information. To the extent that the EPA proposes to issue a SIP call to a state under CAA 

section 110(k)(5), the EPA is only proposing an action that requires the state to revise its 

SIP to comply with existing requirements of the CAA. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant economic impact on a substantial 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 151 of 159 

number of small entities.68 

After considering the economic impacts of this SNPR on small entities, I certify 

that this action will not have a significant economic impact on a substantial number of 

small entities. Courts have interpreted the RFA to require a regulatory flexibility analysis 

only when small entities will be subject to the requirements of the rule. See, e.g., 

Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000); Mid-Tex Elec. Co-op, Inc. v. FERC, 

773 F.2d 327 (D.C. Cir. 1985). This proposed rule will not impose any requirements on 

small entities. Instead, the proposed action merely states the EPA’s current interpretation 

of the statutory requirements of the CAA. To the extent that the EPA proposes to issue a 

SIP call to a state under CAA section 110(k)(5), the EPA is only proposing an action that 

requires the state to revise its SIP to comply with existing requirements of the CAA. The 

EPA’s action, therefore, would leave to states the choice of how to revise the SIP 

provision in question to make it consistent with CAA requirements and determining, 

among other things, which of the several lawful approaches to the treatment of excess 

emissions during SSM events will be applied to particular sources. We continue to be 

interested in the potential impacts of the proposed rule on small entities and welcome 

 

68 Small entities include small businesses, small organizations and small governmental 

jurisdictions. For purposes of assessing the impacts of this notice on small entities, small 

entity is defined as: (1) a small business that is a small industrial entity as defined in the 

U.S. Small Business Administration (SBA) size standards (see 13 CFR 121.201); (2) a 

small governmental jurisdiction that is a government of a city, county, town, school 

district or special district with a population of less than 50,000; or (3) a small 

organization that is any not-for-profit enterprise that is independently owned and 

operated and is not dominant in its field. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 152 of 159 

comments on issues related to such impacts. 

D. Unfunded Mandates Reform Act 

This rule does not contain a federal mandate that may result in expenditures of 

$100 million or more for state, local and tribal governments, in the aggregate, or the 

private sector in any one year. The action may impose a duty on certain state 

governments to meet their existing obligations to revise their SIPs to comply with CAA 

requirements. The direct costs of this action on states would be those associated with 

preparation and submission of a SIP revision by those states for which the EPA issues a 

SIP call. Examples of such costs could include development of a state rule, conducting 

notice and public hearing and other costs incurred in connection with a SIP submission. 

These aggregate costs would be far less than the $100-million threshold in any one year. 

Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. 

This rule is also not subject to the requirements of section 203 of UMRA because 

it contains no regulatory requirements that might significantly or uniquely affect small 

governments. The regulatory requirements of this action would apply to the states for 

which the EPA issues a SIP call. To the extent that such states allow local air districts or 

planning organizations to implement portions of the state’s obligation under the CAA, the 

regulatory requirements of this action would not significantly or uniquely affect small 

governments because those governments have already undertaken the obligation to 

comply with the CAA. 

E. Executive Order 13132 – Federalism 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 153 of 159 

This action does not have federalism implications. It will not have substantial 

direct effects on the states, on the relationship between the national government and the 

states, or on the distribution of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132, because it will simply maintain the 

relationship and the distribution of power between the EPA and the states as established 

by the CAA. The proposed SIP calls are required by the CAA because the EPA is 

proposing to find that the current SIPs of the affected states are substantially inadequate 

to meet fundamental CAA requirements. In addition, the effects on the states will not be 

substantial because where a SIP call is finalized for a state, the SIP call will require the 

affected state to submit only those revisions necessary to address the SIP deficiencies and 

applicable CAA requirements. While this action may impose direct effects on the states, 

the expenditures would not be substantial because they would be far less than $25 million 

in the aggregate in any one year. Thus, Executive Order 13132 does not apply to this 

action. 

In the spirit of Executive Order 13132, and consistent with the EPA’s policy to 

promote communications between the EPA and state and local governments, the EPA 

specifically solicits comment on this SNPR from state and local officials. 

F. Executive Order 13175 – Consultation and Coordination with Indian Tribal 

Governments 

This action does not have tribal implications, as specified in Executive Order 

13175 (65 FR 67249, November 9, 2000). In this action, the EPA is not addressing any 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 154 of 159 

tribal implementation plans. This action is limited to states. Thus, Executive Order 13175 

does not apply to this action. However, the EPA invites comment on this SNPR from 

tribal officials. 

G. Executive Order 13045 – Protection of Children from Environmental Health 

Risks and Safety Risks 

The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to 

those regulatory actions that concern health or safety risks, such that the analysis required 

under section 5-501 of the EO has the potential to influence the regulation. This action is 

not subject to EO 13045 because it merely prescribes the EPA’s action for states 

regarding their obligations for SIPs under the CAA. 

H. Executive Order 13211 – Actions Concerning Regulations That Significantly 

Affect Energy Supply, Distribution or Use 

This action is not a “significant energy action” as defined in Executive Order 

13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant 

adverse effect on the supply, distribution or use of energy. This action merely prescribes 

the EPA’s action for states regarding their obligations for SIPs under the CAA. 

I. National Technology Transfer and Advancement Act 

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use 

voluntary consensus standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 155 of 159 

are technical standards (e.g., materials specifications, test methods, sampling procedures 

and business practices) that are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when 

the EPA decides not to use available and applicable voluntary consensus standards. 

This proposed rulemaking does not involve technical standards. Therefore, the 

EPA is not considering the use of any voluntary consensus standards. 

J. Executive Order 12898 – Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations 

Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the 

greatest extent practicable and permitted by law, to make environmental justice part of 

their mission by identifying and addressing, as appropriate, disproportionately high and 

adverse human health or environmental effects of their programs, policies and activities 

on minority populations and low-income populations in the U.S. 

The EPA has determined that this SNPR will not have disproportionately high and 

adverse human health or environmental effects on minority or low-income populations 

because it increases the level of environmental protection for all affected populations 

without having any disproportionately high and adverse human health or environmental 

effects on any population, including any minority or low-income population. The rule is 

intended to ensure that all communities and populations across the affected states, 

including minority, low-income and indigenous populations overburdened by pollution, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 156 of 159 

receive the full human health and environmental protection provided by the CAA. This 

proposed action concerns states’ obligations regarding the treatment they give, in rules 

included in their SIPs under the CAA, to excess emissions during startup, shutdown and 

malfunctions. This SNPR would require 17 states to bring their treatment of these 

emissions into line with CAA requirements, which would lead to sources’ having greater 

incentives to control emissions during such events. 

K. Determination Under Section 307(d) 

Pursuant to CAA section 307(d)(1)(V), the Administrator determines that this 

action is subject to the provisions of section 307(d). Section 307(d) establishes procedural 

requirements specific to rulemaking under the CAA. Section 307(d)(1)(V) provides that 

the provisions of section 307(d) apply to “such other actions as the Administrator may 

determine.” 

L. Judicial Review 

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have 

venue for petitions of review of final agency actions by the EPA under the CAA. This 

section provides, in part, that petitions for review must be filed in the U.S. Court of 

Appeals for the District of Columbia Circuit (i) when the agency action consists of 

“nationally applicable regulations promulgated, or final actions taken, by the 

Administrator” or (ii) when such action is locally or regionally applicable, if “such action 

is based on a determination of nationwide scope or effect and if in taking such action the 

Administrator finds and publishes that such action is based on such a determination.” 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 157 of 159 

This rule responding to the Petition is “nationally applicable” within the meaning 

of section 307(b)(1). First, the rulemaking addresses a Petition that raises issues that are 

applicable in all states and territories in the U.S. For example, the Petitioner requested 

that the EPA revise its SSM Policy with respect to whether affirmative defense 

provisions in SIPs are consistent with CAA requirements. The EPA’s response is relevant 

for all states nationwide. Second, the rulemaking will address a Petition that raises issues 

relevant to specific existing SIP provisions in states across the U.S. that are located in 

each of the 10 EPA Regions, 10 different federal circuits and multiple time zones. Third, 

the rulemaking addresses a common core of knowledge and analysis involved in 

formulating the decision and a common interpretation of the requirements of the CAA 

being applied to SIPs in states across the country. Fourth, the rulemaking, by addressing 

issues relevant to appropriate SIP provisions in one state, may have precedential impacts 

upon the SIPs of other states nationwide. Courts have found similar rulemaking actions to 

be of nationwide scope and effect.69 

This determination is appropriate because in the 1977 CAA Amendments that 

revised CAA section 307(b)(1), Congress noted that the Administrator’s determination 

that an action is of “nationwide scope or effect” would be appropriate for any action that 

has “scope or effect beyond a single judicial circuit.” H.R. Rep. No. 95-294 at 323 - 324, 

 

69 See, e.g., State of Texas, et al. v. EPA, 2011 U.S. App. LEXIS 5654 (5th Cir. 2011) 

(finding SIP call to 13 states to be of nationwide scope and effect and thus transferring 

the case to the U.S. Court of Appeals for the D.C. Circuit in accordance with CAA 

section 307(b)(1)). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review*** 

EO12866_SSM Petition_2060-AR68_Supplemental Proposal_FRN_20140827_1133 

Summary of Interagency Working Comments on Draft Language under

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

Page 158 of 159 

reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking 

extends to numerous judicial circuits because the action on the Petition extends to states 

throughout the country. In these circumstances, section 307(b)(1) and its legislative 

history authorize the Administrator to find the rule to be of “nationwide scope or effect” 

and thus to indicate the venue for challenges to be in the D.C. Circuit. Thus, any petitions 

for review must be filed in the U.S. Court of Appeals for the District of Columbia Circuit. 

Accordingly, the EPA is proposing to determine that this will be a rulemaking of 

nationwide scope or effect. 

In addition, pursuant to CAA section 307(d)(1)(V), the EPA is determining that 

this rulemaking action will be subject to the requirements of section 307(d), which 

establish procedural requirements specific to rulemaking under the CAA. 

IX. Statutory Authority 

The statutory authority for this action is provided by CAA section 101 et seq. (42 

U.S.C. 7401 et seq.). 
Page 159 of 159 – State Implementation Plans: Response to Petition for 

Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and 

Malfunction; Supplemental Proposal to Address Affirmative Defense Provisions in 

States Included in the Petition for Rulemaking and in Additional States 

Page 159 of 159 

List of Subjects in 40 CFR Part 52 

Environmental protection, Affirmative defense, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, Carbon monoxide, Excess emissions, Greenhouse 

gases, Hydrofluorocarbons, Incorporation by reference, Intergovernmental relations, 

Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and recordkeeping requirements, Startup, shutdown and 

malfunction, State implementation plan, Sulfur hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

________________________ 

Dated: 

_________________________ 

Janet G. McCabe, 

Acting Assistant Administrator.