### UNITED STATESENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

NOV 8,2001

MEMORANDUM SUBJECT: Clarification

- State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown PROM: Eric Schaeffer Director, Office ofRegulatory Enforcement Office ofEnforcement and Compliance Assurance John Seitz Director, Office ofAir QualityPlanning and Standards Office ofAir and Radiation TO: Regional Administrators, Regions I - X On September 20, 1999, EPA issued a guidance memorandum discussing the types ofState Implementation Plan (SIP) provisions addressing excess emissions during malfunctions, startups, and shutdowns that EPA believes may appropriately be approved as part ofa SIP

- State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown ("September 20, 1999 Guidance"). Certain questions have recently been raised concerning the intended effect ofthe September 20, 1999 Guidance. The purpose ofthis Memorandum is to provide clarification with regard to these questions. This Memorandum confirms thatthe September20, 1999, Guidance provides guidance to States and EPA regarding SIP provisions related to excess emissions during malfunctions, startups, and shutdowns. Itwas not intended to alterthe status ofany existing malfunction, startup or shutdown provision in a SIP that has been approved by EPA. Similarly, the Guidance was not intendedto affect existing permitterms orconditions regarding malfunctions, startups and shutdowns thatreflect approved SIP provisions, including opacity provisions, orto alterthe emergency defense provisions at40 c.P.R. § 70.6(g). Existing SIP rules and 40 C.P.R. § 70.6(g) may only be changedthrough established permitting processes. Thus, EPA did not intend the September 20, 1999, Guidance to be legally dispositive with respect to any particularproceedings in which a violation is alleged to have occurred. Rather, it is in the context offuture rulemaking actions, such as SIP approval process, thatEPAwill considerthe Guidance andthe statutory principles on which the Guidance is based.

{.JWS 11-8-01 SEITZ (EPA) MEMO ON MALFUNCTIONS, ETC. (80165).DOC:l}-2 The September 20, 1999, Guidance provides a list ofelements thatEPA believes a State affirmative defense for malfunctions should incorporate in order for EPAto approve such a provision into a SIP. One elementprovides "thatthe amount and duration ofexcess emissions (including any bypass) were 'minimized tothe maximum extent practicable.''' This Memorandum confirms thatthis element does not contemplate redundant control technology where such controls would be technically and economically infeasible. Questions also have been raisedregarding the effect ofthe September 20, 1999, Guidance as it related to enforcement discretion and affirmative defenses. The Guidance confirms thatEPA and States may always exercise enforcement discretion with respectto excess emissions thatoccur during malfunctions, startups or shutdowns. The Guidance further confirms that States mayprovide in SIPs appropriatelytailored affirmative defenses, consistent with the September 20, 1999, Guidance, that would be available in enforcement actions brought by States, EPA, orcitizens.
cc: Air Directors Regions I - X Regional Counsels Region I - 

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(Jws 11-8-01 SEITZ (EPA) MEMO ON MALFUNCTIONS, ETC. (80165).DOC:I}