UNITED STATES ENVIRONMENTAL 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 of Regulatory Enforcement 

Office of Enforcement and Compliance Assurance 

John Seitz 

Director, Office of Air Quality Planning and Standards 

Office ofAir and Radiation 

TO: Regional Administrators, Regions I - X 

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

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

shutdowns that EPA believes may appropriately be approved as part of a SIP - State Implementation 

Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown ("September 

20, 1999 Guidance"). Certain questions have recently been raised concerning the intended effect of the 

September 20, 1999 Guidance. The purpose ofthis Memorandum is to provide clarification with regard 

to these questions. 

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

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

shutdowns. It was not intended to alter the status of any existing malfunction, startup or shutdown 

provision in a SIP that has been approved by EPA. Similarly, the Guidance was not intended to affect 

existing permit terms or conditions regarding malfunctions, startups and shutdowns that reflect approved 

SIP provisions, including opacity provisions, or to alter the emergency defense provisions at 40 c.P.R. § 

70.6(g). Existing SIP rules and 40 C.P.R. § 70.6(g) may only be changed through established permitting 

processes. Thus, EPA did not intend the September 20, 1999, Guidance to be legally dispositive with 

respect to any particular proceedings in which a violation is alleged to have occurred. Rather, it is in the 

context of future rulemaking actions, such as SIP approval process, that EPA will consider the Guidance 

and the statutory principles on which the Guidance is based. 

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The September 20, 1999, Guidance provides a list of elements that EPA believes a State 

affirmative defense for malfunctions should incorporate in order for EPA to approve such a provision 

into a SIP. One element provides "that the amount and duration of excess emissions (including any 

bypass) were 'minimized to the maximum extent practicable.''' This Memorandum confirms that this 

element does not contemplate redundant control technology where such controls would be technically 

and economically infeasible. 

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

related to enforcement discretion and affirmative defenses. The Guidance confirms that EPA and States 

may always exercise enforcement discretion with respect to excess emissions that occur during 

malfunctions, startups or shutdowns. The Guidance further confirms that States may provide in SIPs 

appropriately tailored affirmative defenses, consistent with the September 20, 1999, Guidance, that 

would be available in enforcement actions brought by States, EPA, or citizens. 

cc:	 Air Directors Regions I - X 

Regional Counsels Region I - X 

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