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ENVIRONMENTAL PROTECTION that occur during periods of SSM. The information is not publicly available, AGENCY EPA evaluated existing SIP provisions e.g., Confidential Business Information in a number of states for consistency or other information whose disclosure is 40 CFR Part 52 with the EPA’s interpretation of the restricted by statute. Certain other [EPA–HQ–OAR–2012–0322; FRL–9924–05– CAA and in light of recent court material, such as copyrighted material, OAR] decisions addressing this issue. The will be publicly available only in hard EPA is issuing a finding that certain SIP copy. Publicly available docket RIN 2060–AR68 provisions in 36 states (applicable in 45 materials are available either State Implementation Plans: Response statewide and local jurisdictions) are electronically at http:// to Petition for Rulemaking; substantially inadequate to meet CAA www.regulations.gov or in hard copy at Restatement and Update of EPA’s SSM requirements and thus is issuing a ‘‘SIP the U.S. Environmental Protection Policy Applicable to SIPs; Findings of call’’ for each of those 36 states. Further, Agency, EPA Docket Center, William Substantial Inadequacy; and SIP Calls the EPA is establishing a due date for Jefferson Clinton West Building, Room To Amend Provisions Applying to states subject to this SIP call action to 3334, 1301 Constitution Ave. NW., Excess Emissions During Periods of submit corrective SIP revisions. Finally, Washington, DC The Public Reading Startup, Shutdown and Malfunction this final action embodies the EPA’s Room is open from 8:30 a.m. to 4:30 updated SSM Policy as it applies to SIP p.m., Monday through Friday, excluding AGENCY: Environmental Protection provisions. The SSM Policy provides legal holidays. The telephone number Agency (EPA). guidance to states for compliance with for the Public Reading Room is (202) ACTION: Final action. CAA requirements for SIP provisions 566–1744, and the telephone number for applicable to excess emissions during the Office of Air and Radiation Docket SUMMARY: The Environmental Protection SSM events. is (202) 566–1742. Agency (EPA) is taking final action on a petition for rulemaking filed by the DATES: This final action shall become FOR FURTHER INFORMATION CONTACT: Ms. Sierra Club (Petitioner) that concerns applicable on May 22, 2015. The Lisa Sutton, U.S. EPA, Office of Air how provisions in EPA-approved state deadline for each affected state to Quality Planning and Standards, State implementation plans (SIPs) treat excess submit its corrective SIP revision is and Local Programs Group (C539–01), emissions during periods of startup, November 22, 2016. Research Triangle Park, NC 27711, shutdown or malfunction (SSM). ADDRESSES: The EPA has established a telephone number (919) 541–3450, Further, the EPA is clarifying, restating docket for this rulemaking under Docket email address: [email protected]. and revising its guidance concerning its ID No. EPA–HQ–OAR–2012–0322. All SUPPLEMENTARY INFORMATION: For interpretation of the Clean Air Act (CAA documents in the docket are listed in information related to a specific SIP, or Act) requirements with respect to the http://www.regulations.gov index. please contact the appropriate EPA treatment in SIPs of excess emissions Although listed in the index, some Regional Office:

EPA Regional Contact for Regional Office Office (person, mailing address, telephone number) State

I ...... Alison Simcox, Environmental Scientist, EPA Region 1, 5 Connecticut, Massachusetts, Maine, New Hampshire, Rhode Post Office Square, Suite 100, Boston, MA 02109–3912, Island and Vermont. (617) 918–1684. II ...... Karl Mangels, Chief, Air Planning Section, EPA Region 2, New Jersey, New York, Puerto Rico and Virgin Islands. 290 Broadway, 25th Floor, New York, NY 10007–1866, (212) 637–4078. III ...... Amy Johansen, EPA Region 3, 1650 Arch Street, Philadel- District of Columbia, Delaware, Maryland, Pennsylvania, Vir- phia, PA 19103–2029, (215) 814–2156. ginia and West Virginia. IV ...... Joel Huey, EPA Region 4, Atlanta Federal Center, 61 Alabama, Florida, Georgia, Kentucky, Mississippi, North Forsyth Street SW., Atlanta, GA 30303–8960, (404) 562– Carolina, South Carolina and Tennessee. 9104. V ...... Mary Portanova, Air and Radiation Division (AR–18J), EPA Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. Region 5, 77 West Jackson Boulevard, Chicago, IL 60604–3507, (312) 353–5954. VI ...... Alan Shar (6PD–L), EPA Region 6, Fountain Place 12th Arkansas, Louisiana, New Mexico, Oklahoma and Texas. Floor, Suite 1200, 1445 Ross Avenue, Dallas, TX 75202– 2733, (214) 665–6691. VII ...... Lachala Kemp, EPA Region 7, Air Planning and Develop- Iowa, Kansas, Missouri and Nebraska. ment Branch, 11201 Renner Boulevard, Lenexa, KS 66219–9601, (913) 551–7214. Alternate contact is Ward Burns, (913) 551–7960. VIII ...... Adam Clark, Air Quality Planning Unit (8P–AR) Air Program, Colorado, Montana, North Dakota, South Dakota, Utah and EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202– Wyoming. 1129, (303) 312–7104. IX ...... Andrew Steckel, EPA Region 9, Air Division, 75 Hawthorne Arizona, California, Hawaii, Nevada and the Pacific Islands. Street (AIR–4), San Francisco, CA 94105–3901, (415) 947–4115. X ...... Dave Bray, Office of Air, Waste and Toxics (AWT–150), EPA Alaska, Idaho, Oregon, and Washington. Region 10, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101–3140, (206) 553–4253.

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I. General Information inadequate to meet CAA requirements, E. What are potential impacts on affected pursuant to CAA section 110(k)(5), and states and sources? A. Does this action apply to me? thus those states (named in section II.C F. What happens if an affected state fails Entities potentially affected by this of this document) are directly affected to meet the SIP submission deadline? action include states, U.S. territories, G. What is the status of SIP provisions by this rulemaking. For example, where affected by this SIP call action in the local authorities and eligible tribes that a state’s existing SIP includes an interim period starting when the EPA are currently administering, or may in affirmative defense provision that promulgates the final SIP call and ending the future administer, EPA-approved would purport to alter the jurisdiction when the EPA approves the required SIP implementation plans (‘‘air agencies’’).1 of the federal courts to assess monetary revision? The EPA’s action on the petition for penalties for violations of CAA III. Statutory, Regulatory and Policy rulemaking filed by the Sierra Club with requirements, then the EPA is Background the EPA Administrator on June 30, 2011 determining that the SIP provision is IV. Final Action in Response to Request To (the Petition), is potentially of interest to Rescind the EPA Policy Interpreting the substantially inadequate because the CAA To Allow Affirmative Defense all such entities because the EPA is provision is inconsistent with Provisions addressing issues related to basic CAA fundamental requirements of the CAA. A. What the Petitioner Requested requirements for SIPs. The particular This action may also be of interest to the B. What the EPA Proposed issues addressed in this rulemaking are public and to owners and operators of C. What Is Being Finalized in This Action the same issues that the Petition industrial facilities that are subject to D. Response to Comments Concerning identified, which relate specifically to emission limitations in SIPs, because it Affirmative Defense Provisions in SIPs section 110 of the CAA. Pursuant to will require changes to certain state V. Generally Applicable Aspects of the Final section 110, through what is generally Action in Response to Request for the rules applicable to excess emissions EPA’s Review of Specific Existing SIP referred to as the ‘‘SIP program,’’ the during SSM events. This action Provisions for Consistency With CAA states and the EPA together provide for embodies the EPA’s updated SSM Requirements implementation, maintenance and Policy concerning CAA requirements for A. What the Petitioner Requested enforcement of the national ambient air SIP provisions relevant to excess B. What the EPA Proposed quality standards (NAAQS). While emissions during SSM events. C. What Is Being Finalized in This Action recognizing similarity to (and in some D. Response to Comments Concerning the instances overlap with) issues B. Where can I get a copy of this CAA Requirements for SIP Provisions concerning other air programs, e.g., document and other related Applicable to SSM Events concerning SSM provisions in the EPA’s information? VI. Final Action in Response to Request That the EPA Limit SIP Approval to the Text regulatory programs for New Source In addition to being available in the of State Regulations and Not Rely Upon Performance Standards (NSPS) pursuant docket, an electronic copy of this Additional Interpretive Letters From the to section 111 and National Emission document will also be available on the State Standards for Hazardous Air Pollutants World Wide Web. Following signature A. What the Petitioner Requested (NESHAP) pursuant to section 112, the by the EPA Administrator, a copy of this B. What the EPA Proposed EPA notes that the issues addressed in document will be posted on the EPA’s C. What Is Being Finalized In This Action this rulemaking are specific to SSM D. Response to Comments Concerning Web site, under ‘‘State Implementation Reliance on Interpretive Letters in SIP provisions in the SIP program. Through Plans to Address Emissions During this rulemaking, the EPA is both Revisions Startup, Shutdown and Malfunction,’’ at VII. Clarifications, Reiterations and Revisions clarifying and applying its http://www.epa.gov/air/urbanair/ to the EPA’s SSM Policy interpretation of the CAA with respect sipstatus. The EPA’s initial proposed A. Applicability of Emission Limitations to SIP provisions applicable to excess response to the Petition in the February During Periods of SSM emissions during SSM events in general. 2013 proposal, the EPA’s revised 1. What the EPA Proposed In addition, the EPA is issuing findings proposed response to the Petition in the 2. What Is Being Finalized in This Action that some of the specific SIP provisions September 2014 supplemental notice of 3. Response to Comments in some of the states identified in the B. Alternative Emission Limitations During proposed rulemaking (SNPR) and the Periods of Startup and Shutdown Petition and some SIP provisions in EPA’s Response to Comments document additional states are substantially 1. What the EPA Proposed may be found in the docket for this 2. What Is Being Finalized in This Action action. 3. Response to Comments 1 The EPA respects the unique relationship C. Director’s Discretion Provisions between the U.S. government and tribal authorities C. How is the preamble organized? and acknowledges that tribal concerns are not Pertaining to SSM Events interchangeable with state concerns. Under the The information presented in this 1. What the EPA Proposed 2. What Is Being Finalized in This Action CAA and EPA regulations, a tribe may, but is not preamble is organized as follows: required to, apply for eligibility to have a tribal 3. Response to Comments implementation plan (TIP). For convenience, the I. General Information D. Enforcement Discretion Provisions EPA refers to ‘‘air agencies’’ in this rulemaking A. Does this action apply to me? Pertaining to SSM Events collectively when meaning to refer in general to B. Where can I get a copy of this document 1. What the EPA Proposed states, the District of Columbia, U.S. territories, and other related information? 2. What Is Being Finalized in This Action local air permitting authorities and eligible tribes that are currently administering, or may in the C. How is the preamble organized? 3. Response to Comments future administer, EPA-approved implementation D. What is the meaning of key terms used E. Affirmative Defense Provisions in SIPs plans. This final action does not include action on in this document? During Any Period of Operation any provisions in any TIP. The EPA therefore refers II. Overview of Final Action and Its F. Relationship Between SIP Provisions to ‘‘state’’ or ‘‘states’’ rather than ‘‘air agency’’ or Consequences and Title V Regulations ‘‘air agencies’’ when meaning to refer to the District A. Summary G. Intended Effect of the EPA’s Action on of Columbia and/or one, some, or all of the states B. What the Petitioner Requested the Petition at issue in this rulemaking. The EPA also uses C. To which air agencies does this VIII. Legal Authority, Process and Timing for ‘‘state’’ or ‘‘states’’ rather than ‘‘air agency’’ or ‘‘air agencies’’ when quoting or paraphrasing the CAA rulemaking apply and why? SIP Calls or other document that uses that term even when D. What are the next steps for states that A. SIP Call Authority Under Section the original referenced passage may have are receiving a finding of substantial 110(k)(5) applicability to tribes as well. inadequacy and a SIP call? 1. General Statutory Authority

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2. Substantial Inadequacy of Automatic G. Executive Order 13045: Protection of existed during a period of excess emissions, Exemptions Children From Environmental Health then those exceedances would not be 3. Substantial Inadequacy of Director’s Risks and Safety Risks considered violations of the applicable Discretion Exemptions H. Executive Order 13211: Actions emission limitations. 4. Substantial Inadequacy of Improper Concerning Regulations That The term director’s discretion provision Enforcement Discretion Provisions Significantly Affect Energy Supply, means, in general, a regulatory provision that 5. Substantial Inadequacy of Affirmative Distribution or Use authorizes a state regulatory official Defense Provisions I. National Technology Transfer and unilaterally to grant exemptions or variances B. SIP Call Process Under Section 110(k)(5) Advancement Act (NTTAA) from otherwise applicable emission C. SIP Call Timing Under Section 110(k)(5) J. Executive Order 12898: Federal Actions limitations or control measures, or to excuse D. Response to Comments Concerning SIP To Address Environmental Justice in noncompliance with otherwise applicable Call Authority, Process and Timing Minority Populations and Low-Income emission limitations or control measures, IX. What is the EPA’s final action for each Populations which would be binding on the EPA and the of the specific SIP provisions identified K. Determination Under Section 307(d) public. in the Petition or by the EPA? L. Congressional Review Act (CRA) The term EPA refers to the United States A. Overview of the EPA’s Evaluation of XV. Judicial Review Environmental Protection Agency. Specific SIP Provisions XVI. Statutory Authority The term emission limitation means, in the B. Affected States in EPA Region I context of a SIP, a legally binding restriction C. Affected State in EPA Region II D. What is the meaning of key terms on emissions from a source or source D. Affected States in EPA Region III used in this document? category, such as a numerical emission E. Affected States and Local Jurisdictions limitation, a numerical emission limitation in EPA Region IV For the purpose of this document, the following definitions apply unless the with higher or lower levels applicable during F. Affected States in EPA Region V specific modes of source operation, a specific G. Affected States in EPA Region VI context indicates otherwise: technological control measure requirement, a H. Affected States in EPA Region VII The terms Act or CAA or the statute mean work practice standard, or a combination of I. Affected States in EPA Region VIII or refer to the Clean Air Act. these things as components of a J. Affected States and Local Jurisdictions in The term affirmative defense means, in the comprehensive and continuous emission EPA Region IX context of an enforcement proceeding, a limitation in a SIP provision. In this respect, K. Affected States in EPA Region X response or defense put forward by a the term emission limitation is defined as in X. Implementation Aspects of EPA’s SSM SIP defendant, regarding which the defendant section 302(k) of the CAA. By definition, an Policy has the burden of proof, and the merits of emission limitation can take various forms or A. Recommendations Concerning which are independently and objectively a combination of forms, but in order to be Alternative Emission Limitations for evaluated in a judicial or administrative permissible in a SIP it must be applicable to Startup and Shutdown proceeding. The term affirmative defense the source continuously, i.e., cannot include B. Recommendations for Compliance With provision means more specifically a state law periods during which emissions from the Section 110(l) and Section 193 for SIP source are legally or functionally exempt Revisions provision in a SIP that specifies particular XI. Statement of the EPA’s SSM SIP Policy criteria or preconditions that, if met, would from regulation. Regardless of its form, a as of 2015 purport to preclude a court from imposing fully approvable SIP emission limitation A. Definitions monetary penalties or other forms of relief for must also meet all substantive requirements B. Emission Limitations in SIPs Must violations of SIP requirements in accordance of the CAA applicable to such a SIP Apply Continuously During All Modes with CAA section 113 or CAA section 304. provision, e.g., the statutory requirement of of Operation, Without Automatic or The term Agency means or refers to the section 172(c)(1) for imposition of reasonably Discretionary Exemptions or Overly EPA. When not capitalized, this term refers available control measures and reasonably Broad Enforcement Discretion Provisions to an agency in general and not specifically available control technology (RACM and That Would Bar Enforcement by the EPA to the EPA. RACT) on sources located in designated or by Other Parties in Federal Court The terms air agency and air agencies nonattainment areas. Through a Citizen Suit mean or refer to states, the District of The term excess emissions means the C. Emission Limitations in SIPs May Columbia, U.S. territories, local air emissions of air pollutants from a source that Contain Components Applicable to permitting authorities with delegated exceed any applicable SIP emission Different Modes of Operation That Take authority from the state and tribal authorities limitation. In particular, this term includes Different Forms, and Numerical with appropriate CAA jurisdiction. those emissions above the otherwise Emission Limitations May Have Differing The term alternative emission limitation applicable SIP emission limitation that occur Levels and Forms for Different Modes of means, in this document, an emission during startup, shutdown, malfunction or Operation limitation in a SIP that applies to a source other modes of source operation, i.e., D. Recommendations for Development of during some but not all periods of normal emissions that would be considered Alternative Emission Limitations operation (e.g., applies only during a violations of the applicable emission Applicable During Startup and specifically defined mode of operation such limitation but for an impermissible automatic Shutdown as startup or shutdown). An alternative or discretionary exemption from such E. Enforcement Discretion Provisions emission limitation is a component of a emission limitation. F. Affirmative Defense Provisions in SIPs continuously applicable SIP emission The term February 2013 proposal means G. Anti-Backsliding Considerations limitation, and it may take the form of a the notice of proposed rulemaking that the XII. Environmental Justice Consideration control measure such as a design, equipment, EPA signed on February 12, 2013, and XIII. References work practice or operational standard published in the Federal Register on XIV. Statutory and Executive Order Reviews (whether or not numerical). This definition of February 22, 2013. The February 2013 A. Executive Order 12866: Regulatory the term is independent of the statutory use proposal comprises the EPA’s initial Planning and Review and Executive of the term ‘‘alternative means of emission proposed response to the Petition. The EPA Order 13563: Improving Regulation and limitation’’ in sections 111(h)(3) and subsequently issued the September 2014 Regulatory Review 112(h)(3), which pertain to the conditions SNPR that updated and revised the EPA’s B. Paperwork Reduction Act (PRA) under which the EPA may pursuant to February 2013 proposal with respect to C. Regulatory Flexibility Act (RFA) sections 111 and 112 promulgate emission affirmative defense provisions in SIPs. D. Unfunded Mandates Reform Act limitations, or components of emission The term malfunction means a sudden and (UMRA) limitations, that are not necessarily in unavoidable breakdown of process or control E. Executive Order 13132: Federalism numeric format. equipment. F. Executive Order 13175: Consultation The term automatic exemption means a The term NAAQS means national ambient and Coordination With Indian Tribal generally applicable provision in a SIP that air quality standard or standards. These are Governments would provide that if certain conditions the national primary and secondary ambient

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air quality standards that the EPA establishes is embodied in a 1999 guidance document malfunction. Many of these provisions under CAA section 109 for criteria pollutants discussed in more detail in this final action. took the form of absolute or conditional for purposes of protecting public health and That specific guidance document is referred statements that excess emissions from a welfare. to as the 1999 SSM Guidance. The final source, when they occur during startup, The term Petition refers to the petition for action described in this document embodies rulemaking titled, ‘‘Petition to Find the EPA’s updated SSM Policy for SIP shutdown, malfunction or otherwise Inadequate and Correct Several State provisions relevant to excess emissions outside of the source’s so-called Implementation Plans under Section 110 of during SSM events. In section XI of this ‘‘normal’’ operations, were not to be the Clean Air Act Due to Startup, Shutdown, document, the EPA provides a statement of considered violations of the air agency Malfunction, and/or Maintenance the Agency’s SSM SIP Policy as of 2015. rules; i.e., these emissions were Provisions,’’ filed by the Sierra Club with the The term startup means, generally, the considered exempt from legal control. EPA Administrator on June 30, 2011. setting in operation of a source for any Excess emission provisions for The term Petitioner refers to the Sierra reason. In this document, the EPA uses this startup, shutdown, maintenance and Club. term in the generic sense. In an individual malfunctions were often included as The term practically enforceable means, in SIP provision it may be appropriate to part of the original SIPs that the EPA the context of a SIP emission limitation, that include a specifically tailored definition of approved in 1971 and 1972. In the early the limitation is enforceable as a practical this term to address a particular source matter (e.g., contains appropriate averaging category for a particular purpose. 1970s, because the EPA was inundated times, compliance verification procedures with proposed SIPs and had limited and recordkeeping requirements). The term II. Overview of Final Action and Its experience in processing them, not uses ‘‘practically’’ as it means ‘‘in a practical Consequences enough attention was given to the manner’’ and not as it means ‘‘almost’’ or A. Summary adequacy, enforceability and ‘‘nearly.’’ In this document, the EPA uses the consistency of these provisions. term ‘‘practically enforceable’’ as The EPA is in this document taking Consequently, many SIPs were interchangeable with the term ‘‘practicably final action on a petition for rulemaking approved with broad and loosely enforceable.’’ that the Sierra Club filed with the EPA The term shutdown means, generally, the defined provisions to control excess Administrator on June 30, 2011. The emissions. Starting in 1977, however, cessation of operation of a source for any Petition concerns how air agency rules reason. In this document, the EPA uses this the EPA discerned and articulated to air term in the generic sense. In individual SIP in EPA-approved SIPs treat excess agencies that exemptions for excess provisions it may be appropriate to include emissions during periods of SSM of emissions during such periods were a specifically tailored definition of this term industrial source process or emission inconsistent with certain requirements to address a particular source category for a control equipment. Many of these rules of the CAA.3 The EPA also realized that particular purpose. were added to SIPs and approved by the such provisions allow opportunities for The term SIP means or refers to a State EPA in the years shortly after the 1970 sources to emit pollutants during such Implementation Plan. Generally, the SIP is amendments to the CAA, which for the periods repeatedly and in quantities that the collection of state statutes and regulations first time provided for the system of could cause unacceptable air pollution approved by the EPA pursuant to CAA clean air plans that were to be prepared section 110 that together provide for in nearby communities with no legal implementation, maintenance and by air agencies and approved by the pathway within the existing EPA- enforcement of a national ambient air quality EPA. At that time, it was widely approved SIP for air agencies, the EPA, standard (or any revision thereof) believed that emission limitations set at the public or the courts to require the promulgated under section 109 for any air levels representing good control of sources to make reasonable efforts to pollutant in each air quality control region emissions during periods of so-called reduce these emissions. The EPA has (or portion thereof) within a state. In some ‘‘normal’’ operation (which, until no attempted to be more careful after 1977 parts of this document, statements about SIPs later than 1982, was meant by the EPA not to approve SIP submissions that in general would also apply to tribal to refer to periods of operation other contain illegal SSM provisions and has implementation plans in general even though than during startup, shutdown, not explicitly noted. issued several guidance memoranda to The term SNPR means the supplemental maintenance or malfunction) could in advise states on how to avoid notice of proposed rulemaking that the EPA some cases not be met with the same impermissible provisions 4 as they signed and posted on the Agency Web site on emission control strategies during expand and revise their SIPs. The EPA September 5, 2014, and published in the periods of startup, shutdown, has also found several SIPs to be Federal Register on September 17, 2014. maintenance or malfunction.2 deficient because of problematic SSM Supplementing the February 2013 proposal, Accordingly, it was common for state provisions and called upon the affected the SNPR comprises the EPA’s revised plans to include provisions for special, states to amend their SIPs. However, in proposed response to the Petition with more lenient treatment of excess light of the other high-priority work respect to affirmative defense provisions in emissions during such periods of SIPs. facing both air agencies and the EPA, The term SSM refers to startup, shutdown startup, shutdown, maintenance or or malfunction at a source. It does not 3 In 1977, the EPA took actions related to specific include periods of maintenance at such a 2 Since at least 1982, however, the EPA has used sources located in Utah and Idaho in which the source. An SSM event is a period of startup, the term ‘‘normal’’ in the SSM Policy in the EPA expressed its views regarding issues such as automatic exemptions from applicable emission shutdown or malfunction during which there ordinary sense of the word to distinguish between predictable modes of source operation such as limitations. See Memorandum, ‘‘Statutory, may be exceedances of the applicable startup and shutdown and genuine ‘‘malfunctions,’’ Regulatory, and Policy Context for this emission limitations and thus excess which are by definition supposed to be Rulemaking,’’ at n.2, February 4, 2013, in the emissions. unpredictable and unforeseen events and which rulemaking docket at EPA–HQ–OAR–2012–0322– The term SSM Policy refers to the could not have been precluded by proper source 0029. cumulative guidance that the EPA has issued design, maintenance and operation. See, e.g., 1982 4 The term ‘‘impermissible provision’’ as used as of any given date concerning its SSM Guidance, Attachment at 2, in which the EPA throughout this document is generally intended to interpretation of CAA requirements with states, ‘‘[s]tart-up and shutdown of process refer to a SIP provision that the EPA now believes respect to treatment of excess emissions equipment are part of the normal operation of a to be inconsistent with requirements of the CAA. source and should be accounted for in the design As described later in this document (see section during periods of startup, shutdown and and implementation of the operating procedure for VIII.A), the EPA is proposing to find a SIP malfunction at a source in SIP provisions. the process and control equipment.’’ The 1982 SSM ‘‘substantially inadequate’’ to meet CAA The most comprehensive statement of the Guidance is in the rulemaking docket at EPA–HQ– requirements where the EPA determines that the EPA’s SSM Policy prior to this final action OAR–2012–0322–0005. SIP includes an impermissible provision.

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the EPA had not until the February 2013 its interpretation of the CAA in the SSM a final finding of substantial inadequacy proposal initiated a broader effort to Policy that reflects these principles and and SIP call for specific SIP provisions require a larger number of states to is applying this interpretation to issue a included in the February 2013 proposal remove impermissible provisions from SIP call for specific existing provisions for several air agencies, because of SIP their SIPs and to adopt other, in the SIPs of 36 states. In some cases, revisions made subsequent to that approvable approaches for addressing the EPA’s review involved a close proposal. The state of Kentucky has excess emissions when appropriate. reading of the provision in the SIP and already submitted, and the EPA has Public interest in the issue of SSM its context to discern whether it was in approved, SIP revisions that corrected provisions in SIPs is evidently high, on fact an exemption, a statement regarding the problematic provisions applicable in the basis of the large number of public exercise of enforcement discretion by the Jefferson County (Louisville, submissions made to the rulemaking the air agency or an affirmative defense. Kentucky) area.7 The state of Wyoming docket in response to the February 2013 Each state will ultimately decide how to has already submitted, and the EPA has proposal (representing approximately address the SIP inadequacies identified approved, SIP revisions that corrected 69,000 unique commenters) and the by the EPA in this final action. The EPA the problematic provisions applicable SNPR (over 20,000 commenters, some of acknowledges that for some states, this statewide.8 The state of North Dakota whom had also made submissions in rulemaking entailed the EPA’s has likewise already submitted, and the response to the earlier proposal). The evaluation of SIP provisions that may EPA has approved, SIP revisions that EPA has attempted to further count date back several decades. Aware of that corrected a portion of the problematic commenters according to general fact, the EPA is committed to working provisions applicable statewide.9 categories (state and local governments, closely with each of the affected states Of the 41 states for which SIP industry commenters, public interest to develop approvable SIP submissions provisions were identified by the groups and individual commenters), as consistent with the guidance articulated Petition or identified independently by described in section V.D.1 of this in the updated SSM Policy in this final the Agency in the SNPR, the EPA is document. Public interest groups, action. Section IX of this document issuing a SIP call for 36 states. The EPA including the Petitioner, have sued the presents the EPA’s analysis of each is aware of other SSM-related SIP EPA in several state-specific cases specific SIP provision at issue in this provisions that were not identified in concerning SIP issues, and they have action. The EPA’s review also involved the Petition but that may be inconsistent been urging the EPA to give greater interpretation of several relevant with the EPA’s interpretation of the priority generally to addressing the sections of the CAA. While the EPA has CAA. For SIP provisions that have issue of SSM provisions in SIPs. In one already developed and has been potential defects other than an of these SIP cases, the EPA entered into implementing the SSM Policy that is impermissible affirmative defense, the a settlement agreement requiring it to based on its interpretation of the CAA EPA elected to focus on the provisions respond to the Petition from the Sierra for SIP provisions, this action provides specifically raised in the Petition. The Club. A copy of the settlement the EPA an opportunity to update the EPA may address these other provisions agreement is provided in the docket for SSM Policy and its basis in the CAA later in a separate notice-and-comment this rulemaking.5 through notice and comment. To that action. States are encouraged to The EPA emphasizes that there are end, section XI of this document consider the updated SSM Policy laid other approaches that would be contains a restatement of the EPA’s SSM out in this final action in reviewing consistent with CAA requirements for Policy for SIP provisions as revised and their own SIP provisions. With respect SIP provisions that states can use to updated for 2015. Also, supplementary to affirmative defense provisions, address emissions during SSM events. to the February 2013 proposal, the EPA however, the EPA elected to identify While automatic exemptions and provided a background memorandum to some additional provisions not included director’s discretion exemptions from summarize the legal and administrative in the Petition. This is necessary to otherwise applicable emission context for this action which is available minimize potential confusion relating to limitations are not consistent with the in the docket for this rulemaking.6 This other recent rulemakings and court CAA, SIPs may include criteria and final document is intended to clarify decisions that pertain generally to procedures for the use of enforcement how states can resolve the identified affirmative defense provisions. discretion by air agency personnel. deficiencies in their SIPs as well as to Therefore, in order to give updated and Similarly, SIPs may, rather than exempt provide all air agencies guidance as they comprehensive guidance with respect to emissions during SSM events, include develop SIPs in the future. affirmative defense provisions, the EPA emission limitations that subject those In summary, the EPA is agreeing with has also addressed additional emissions to alternative numerical the Petitioner that many of the affirmative defense provisions in 17 limitations or other technological identified SIP provisions are not states in the SNPR and in this final control requirements or work practice permissible under the CAA. However, action. See section V.D.3 of this requirements during startup and in some cases the EPA is instead document for further explanation as to shutdown events, so long as those concluding that an identified SIP which SSM-related SIP provisions the components of the emission limitations provision is actually consistent with 7 See ‘‘Approval and Promulgation of meet applicable CAA requirements. In CAA requirements. In addition, the EPA Implementation Plans; Kentucky; Approval of this action, the EPA is again articulating notes, this final action does not include Revisions to the Jefferson County Portion of the Kentucky SIP; Emissions During Startups, 5 See Settlement Agreement executed November 6 See Memorandum, ‘‘Statutory, Regulatory, and Shutdowns, and Malfunctions,’’ 79 FR 33101 (June 30, 2011, in the rulemaking docket at EPA–HQ– Policy Context for this Rulemaking,’’ February 4, 10, 2014). OAR–2012–0322–0039, to address a lawsuit filed by 2013, in the rulemaking docket at EPA–HQ–OAR– 8 See ‘‘Approval and Promulgation of Sierra Club and WildEarth Guardians in the United 2012–0322–0029. The EPA notes that with respect Implementation Plans; Wyoming; Revisions to the States District Court for the Northern District of to the legal basis for affirmative defense provisions Air Quality Standards and Regulations,’’ 79 FR California: Sierra Club et al. v. Jackson, No. 3:10– in SIPs, the Agency has revised its views as a result 62859 (October 21, 2014). cv–04060–CRB (N.D. Cal.). A subsequent of a court decision, as explained in more detail in 9 See ‘‘Approval and Promulgation of Modification to the Settlement Agreement specifies the SNPR. Thus, the portions of that background Implementation Plans; North Dakota; Revisions to a deadline of May 22, 2015, for signature on the memorandum that concern affirmative defense the Air Pollution Control Rules,’’ 79 FR 63045 final action to respond to the Petition. provisions are no longer germane to this action. (October 22, 2014).

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EPA reviewed for consistency with CAA provisions that are not consistent with problems with compliance and requirements as part of this rulemaking. the CAA or with the recommendations enforcement. Extrapolating from several in the EPA’s SSM Policy. The Petitioner instances in which the basis for the B. What the Petitioner Requested identified specific provisions in SIPs of original approval of a SIP provision The Petition includes three 39 states that it considered inconsistent related to excess emissions during SSM interrelated requests concerning the with the CAA and explained the basis events was arguably not clear, the treatment in SIPs of excess emissions by for its objections to the provisions. As Petitioner contended that the EPA sources during periods of SSM. explained later in this final document, should never use interpretive letters to First, the Petitioner argued that SIP the EPA agrees with the Petitioner that resolve such ambiguities. As explained provisions providing an affirmative some of these existing SIP provisions later in this proposal, the EPA defense for monetary penalties for are legally impermissible and thus finds acknowledges the concern of the excess emissions in judicial proceedings such provisions ‘‘substantially Petitioner that provisions in SIPs should are contrary to the CAA. Thus, the inadequate’’ 10 to meet CAA be clear and unambiguous. However, Petitioner advocated that the EPA requirements. Among the reasons for the the EPA does not agree with the should rescind its interpretation of the EPA’s action is to eliminate SIP Petitioner that reliance on interpretive CAA expressed in the SSM Policy that provisions that interfere with letters in a rulemaking context is never allows appropriately drawn affirmative enforcement in a manner prohibited by appropriate. Without the ability to rely defense provisions in SIPs. The the CAA. Simultaneously, where the on a state’s interpretive letter that can in Petitioner made no distinction between EPA agrees with the Petitioner, the EPA a timely way clarify perceived affirmative defenses for excess is issuing a SIP call that directs the ambiguity in a provision in a SIP emissions related to malfunction and affected state to revise its SIP submission, however small that those related to startup or shutdown. accordingly. For the remainder of the ambiguity may be, the EPA may have no Further, the Petitioner requested that identified provisions, however, the EPA recourse other than to disapprove the the EPA issue a SIP call requiring states disagrees with the contentions of the state’s SIP submission. Thus, the EPA is to eliminate all such affirmative defense Petitioner and is thus denying the denying the request that actions on SIP provisions in existing SIPs. As Petition with respect to those provisions submissions never rely on interpretive explained later in this final document, and taking no further action. The EPA’s letters. Instead, the EPA explains how the EPA has decided to fully grant this action issuing the SIP calls on this proper documentation of reliance on request. Although the EPA initially portion of the Petition will assure that interpretive letters in notice-and- proposed to grant in part and to deny in these SIPs comply with the fundamental comment rulemaking nevertheless part this request in the February 2013 requirements of the CAA with respect to addresses the practical concerns of the proposal, a subsequent court decision the treatment of excess emissions during Petitioner. concerning the legal basis for affirmative periods of SSM. The majority of the defense provisions under the CAA C. To which air agencies does this state-specific provisions affected by this rulemaking apply and why? caused the Agency to reexamine this SIP call action are inconsistent with the question. As a result, the EPA issued the EPA’s longstanding interpretation of the In general, the final action may be of SNPR to present its revised CAA through multiple iterations of its interest to all air agencies because the interpretation of the CAA with respect SSM Policy. With respect to SIP EPA is clarifying, restating and revising to this issue and to propose action on provisions that include an affirmative its longstanding SSM Policy with the Petition and on specific existing defense for violations of SIP respect to what the CAA requires affirmative defense provisions in the requirements, however, the EPA has concerning SIP provisions relevant to SIPs of 17 states consistent with the revised its prior interpretation of the excess emissions during periods of reasoning of that court decision. In this statute that would have allowed such SSM. For example, the EPA is granting final action, the EPA is revising its SSM provisions under certain very limited the Petitioner’s request that the EPA Policy with respect to affirmative conditions. Based upon an evaluation of rescind its prior interpretation of the defenses for violations of SIP the relevant statutory provisions in light CAA that, as stated in prior guidance in requirements. The EPA believes that SIP of more recent court decisions, the EPA the SSM Policy, allowed appropriately provisions that function to alter the is issuing a SIP call to address existing drawn affirmative defense provisions jurisdiction of the federal courts under affirmative defense provisions that applicable to malfunctions. The EPA is CAA section 113 and section 304 to would operate to alter or eliminate the also reiterating, clarifying or revising its determine liability and to impose jurisdiction of courts to assess liability prior guidance with respect to several remedies are inconsistent with and impose remedies and that would other issues related to SIP provisions fundamental legal requirements of the thereby contradict explicit provisions of applicable to SSM events in order to CAA, especially with respect to the the CAA relating to judicial authority. ensure that future SIP submissions, not enforcement regime explicitly created Third, the Petitioner argued that the limited to those that affected states by statute. EPA should not rely on interpretive make in response to this action, are fully Second, the Petitioner argued that letters from states to resolve any consistent with the CAA. For example, many existing SIPs contain ambiguity, or perceived ambiguity, in the EPA is reiterating and clarifying its impermissible provisions, including state regulatory provisions in SIP prior guidance concerning how states automatic exemptions from applicable submissions. The Petitioner reasoned may elect to replace existing exemptions emission limitations during SSM events, that all regulatory provisions should be for excess emissions during SSM events director’s discretion provisions that in clear and unambiguous on their face with properly developed alternative particular provide discretionary and that any reliance on interpretive emission limitations that apply to the exemptions from applicable emission letters to alleviate facial ambiguity in affected sources during startup, limitations during SSM events, SIP provisions can lead to later shutdown or other normal modes of enforcement discretion provisions that source operation (i.e., that apply to appear to bar enforcement by the EPA 10 The term ‘‘substantially inadequate’’ is used in excess emissions during those normal or citizens for such excess emissions the CAA and is discussed in detail in section VIII.A modes of operation as opposed to and inappropriate affirmative defense of this document. during malfunctions). This action also

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addresses the use of interpretive letters or denying the Petition with respect to respect to one or more provisions in 34 for purposes of resolving an actual or the specific existing SIP provisions in of the 39 states listed, and these are the perceived ambiguity in a SIP each of 39 states identified by the states for which the action on the submission during the EPA’s evaluation Petitioner as allegedly inconsistent with Petition, according to table 1, is either of the SIP revision at issue. the CAA. The 39 states (for which the ‘‘Grant’’ or ‘‘Partially grant, partially In addition, this final action is Petitioner identified SIP provisions deny.’’ Conversely, the EPA is denying directly relevant to the states with SIP applicable in 46 statewide and local the petition with respect to all provisions relevant to excess emissions jurisdictions and no tribal areas) 11 are provisions that the Petitioner identified that the EPA has determined are listed in table 1, ‘‘List of States with SIP in 5 of the 39 states, and these (Idaho, inconsistent with CAA requirements or Provisions for Which the EPA Either Nebraska, New Hampshire, Oregon and with the EPA’s interpretation of those Grants or Denies the Petition, in Whole Wyoming) are the states for which the requirements in the SSM Policy. In this or in Part.’’ After evaluating the Petition, final action on the Petition, according to final action, the EPA is either granting the EPA is granting the Petition with table 1, is ‘‘Deny.’’

TABLE 1—LIST OF STATES WITH SIP PROVISIONS FOR WHICH THE EPA EITHER GRANTS OR DENIES THE PETITION, IN WHOLE OR IN PART

EPA region State Final action on petition

I ...... Maine ...... Grant. New Hampshire ...... Deny. Rhode Island ...... Grant. II ...... New Jersey ...... Partially grant, partially deny. III ...... Delaware ...... Grant. District of Columbia ...... Partially grant, partially deny. Virginia ...... Grant. West Virginia ...... Grant. IV ...... Alabama ...... Grant. Florida ...... Grant. Georgia ...... Grant. Kentucky ...... Partially grant, partially deny. Mississippi ...... Grant. North Carolina ...... Grant. South Carolina ...... Partially grant, partially deny. Tennessee ...... Grant. V ...... Illinois ...... Grant. Indiana ...... Grant. Michigan ...... Grant. Minnesota ...... Grant. Ohio ...... Partially grant, partially deny. VI ...... Arkansas ...... Grant. Louisiana ...... Grant. New Mexico ...... Grant. Oklahoma ...... Grant. VII ...... Iowa ...... Partially grant, partially deny. Kansas ...... Grant. Missouri ...... Partially grant, partially deny. Nebraska ...... Deny. VIII ...... Colorado ...... Grant. Montana ...... Grant. North Dakota ...... Partially grant, partially deny. South Dakota ...... Grant. Wyoming ...... Deny. IX ...... Arizona ...... Partially grant, partially deny. X ...... Alaska ...... Grant. Idaho ...... Deny. Oregon ...... Deny. Washington ...... Grant.

For each state for which the final provisions are inconsistent with the jurisdiction of the courts to determine action on the Petition is either ‘‘Grant’’ CAA with regard to how the state treats liability and impose remedies for or ‘‘Partially grant, partially deny,’’ the excess emissions from sources during violations of SIP emission limitations. EPA finds that certain specific periods of SSM. With respect to the The EPA believes that certain specific provisions in each state’s SIP are affirmative defense provisions identified provisions in these SIPs fail to meet substantially inadequate to meet CAA in the Petition, the EPA finds that they fundamental statutory requirements requirements for the reason that these improperly impinge upon the statutory intended to attain and maintain the

11 The state has the primary responsibility to on a local or regional government, agency or to specific portions of a state. Thus, in certain implement SIP obligations, pursuant to CAA instrumentality to carry out the SIP or a portion of states, submission of a corrective SIP revision may section 107(a). However, as CAA section the SIP within its jurisdiction. As a result, some of involve rulemaking in more than one jurisdiction. 110(a)(2)(E) allows, a state may authorize and rely the SIP provisions at issue in this rulemaking apply

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NAAQS, protect prevention of jurisdiction of federal courts to assess decisions concerning affirmative significant deterioration (PSD) liability or to impose remedies defense provisions and CAA increments and improve visibility. consistent with the statutory authority requirements. As the result of this Equally importantly, the EPA believes provided in CAA section 113 and evaluation, the EPA finds that specific that the same provisions may section 304. The particular provisions affirmative defense provisions in 17 undermine the ability of states, the EPA for which the EPA is requiring SIP states (applicable in 23 statewide and and the public to enforce emission revisions are summarized in section IX local jurisdictions) are substantially limitations in the SIP that have been of this document. Many of these inadequate to meet CAA requirements relied upon to ensure attainment or provisions were added to the respective for the reason that these provisions maintenance of the NAAQS or to meet SIPs many years ago and have not been impinge upon the statutory jurisdiction other CAA requirements. the subject of action by the state or the of the federal courts to determine For each state for which the final EPA since. liability and impose remedies for action on the Petition is either ‘‘Grant’’ For each of the states for which the violations of SIP emission limitations.13 or ‘‘Partially grant, partially deny,’’ the EPA is denying or is partially denying By improperly impinging upon the EPA is also in this final action calling the Petition, the EPA finds that the jurisdiction of the federal courts, the for a SIP revision as necessary to correct particular provisions identified by the EPA believes, these provisions fail to the identified deficient provisions. The Petitioner are not substantially meet fundamental statutory SIP revisions that the states are directed inadequate to meet the requirements requirements intended to attain and to make will rectify a number of pursuant to CAA section 110(k)(5), maintain the NAAQS, protect PSD different types of defects in existing because the provisions: (i) Are, as they increments and improve visibility. As SIPs, including automatic exemptions were described in the Petition and as with the affirmative defense provisions from emission limitations, they appear in the existing SIP, identified in the Petition, the EPA impermissible director’s discretion consistent with the requirements of the believes that these provisions may provisions, enforcement discretion CAA; or (ii) are, as they appear in the undermine the ability of states, the EPA provisions that have the effect of barring existing SIP after having been revised and the public to enforce emission enforcement by the EPA or through a subsequent to the date of the Petition, limitations in the SIP that have been citizen suit and affirmative defense consistent with the requirements of the relied upon to ensure attainment or provisions that are inconsistent with CAA; or (iii) have, subsequent to the maintenance of the NAAQS or to meet CAA requirements. A corrective SIP date of the Petition, been removed from other CAA requirements. revision addressing automatic or the SIP. Thus, in this final action, the In this final action, the EPA is issuing impermissible discretionary exemptions EPA is taking no action to issue a SIP a SIP call to each of 36 states (for will ensure that excess emissions during call with respect to those states for those provisions applicable in 45 statewide periods of SSM are treated in particular SIP provisions. and local jurisdictions) with respect to accordance with CAA requirements. In addition to evaluating specific SIP these provisions. The 36 states are listed Similarly, a corrective SIP revision provisions identified in the Petition, the in table 2, ‘‘List of All States With SIP addressing ambiguity in who may EPA has independently evaluated Provisions Subject to SIP Call.’’ The enforce against violations of these additional affirmative defense EPA emphasizes that this SIP call action emission limitations will also ensure provisions in the SIPs of six states pertains to the specific SIP provisions that CAA requirements to provide for (applicable in nine statewide and local identified and discussed in section IX of enforcement are met. A SIP revision to jurisdictions).12 As explained in the this document. The actions required of remove affirmative defense provisions SNPR, the EPA determined that this individual states in response to this SIP will assure that the SIP provision does approach was necessary in order to take call action are discussed in more detail not purport to alter or eliminate the into consideration recent judicial in section IX of this action.

TABLE 2—LIST OF ALL STATES WITH SIP PROVISIONS SUBJECT TO SIP CALL

EPA region State Area

I ...... Maine ...... State. Rhode Island ...... State. II ...... New Jersey ...... State. III ...... Delaware ...... State. District of Columbia ...... State. Virginia ...... State. West Virginia ...... State. IV ...... Alabama ...... State. Florida ...... State. Georgia ...... State. Kentucky ...... State.

12 The six states in which the EPA independently 13 The 17 states for which the EPA finds that West Virginia. Further, the EPA independently evaluated affirmative defense provisions are: specific affirmative defense provisions are identified and evaluated affirmative defense California; South Carolina, New Mexico, Texas, substantially inadequate to meet CAA requirements provisions in two states that were not included in Washington and West Virginia. The EPA evaluated are counted as follows: The EPA evaluated the Petition: California; and Texas. In the final affirmative defense provisions identified by the the New Mexico SIP with respect to provisions action, the EPA is finding one or more affirmative Petitioner for 14 states: Alaska; Arizona; Arkansas; defense provisions to be substantially inadequate in applicable to the state and Albuquerque-Bernalillo Colorado; District of Columbia; Georgia; Illinois; County. The EPA evaluated the Washington SIP Indiana; Kentucky; Michigan; Mississippi; New all but one of the 18 states for which the EPA with respect to provisions applicable to the state, Mexico; Virginia; and Washington. The EPA evaluated affirmative defense provisions; for one the Energy Facility Site Evaluation Council and the evaluated affirmative defense provisions that it state, Kentucky, the affirmative defense provision, Southwest Clean Air Agency. independently identified among two states which was applicable in Jefferson County, was identified by the Petitioner: South Carolina; and corrected prior to the EPA’s issuing its SNPR.

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TABLE 2—LIST OF ALL STATES WITH SIP PROVISIONS SUBJECT TO SIP CALL—Continued

EPA region State Area

Mississippi ...... State. North Carolina ...... State and Forsyth County. South Carolina ...... State. Tennessee ...... State, Knox County and Shelby County. V ...... Illinois ...... State. Indiana ...... State. Michigan ...... State. Minnesota ...... State. Ohio ...... State. VI ...... Arkansas ...... State. Louisiana ...... State. New Mexico ...... State and Albuquerque-Bernalillo County. Oklahoma ...... State. Texas ...... State. VII ...... Iowa ...... State. Kansas ...... State. Missouri ...... State. VIII ...... Colorado ...... State. Montana ...... State. North Dakota ...... State. South Dakota ...... State. IX ...... Arizona ...... State and Maricopa County. California ...... Eastern Kern APCD, Imperial County APCD and San Joaquin Valley Unified APCD. X ...... Alaska ...... State. Washington ...... State, Energy Facility Site Evaluation Council and Southwest Clean Air Agency.

D. What are the next steps for states that the necessary SIP development process enforcement discretion, this removal are receiving a finding of substantial to correct the deficiencies yet still would not affect the ability of the state inadequacy and a SIP call? achieve the necessary SIP improvements to apply its traditional enforcement as expeditiously as practicable discretion in its enforcement program. It The EPA is finalizing a finding of consistent with the maximum time would merely make the exercise of such substantial inadequacy and issuing a allowed by statute. discretion case-by-case in nature, as is SIP call for the states listed in table 2 the normal form of such discretion. (see section II.C of this document). The E. What are potential impacts on In addition, affected states may EPA is also establishing a deadline by affected states and sources? choose to consider reassessing which these states must make a SIP The issuance of a SIP call requires an particular emission limitations, for submission to rectify the specifically affected state to take action to revise its example to determine whether those identified deficiencies in their SIP. That action by the state may, in emission limitations can be revised such respective SIPs. Pursuant to CAA turn, affect sources as described later in that well-managed emissions during section 110(k)(5), the EPA has authority this document. The states that are planned operations such as startup and to set a SIP submission deadline that is receiving a SIP call in this final action shutdown would not exceed the revised up to 18 months from the date of the will in general have options as to emission limitation, while still final finding of substantial inadequacy. exactly how to revise their SIPs. In protecting air quality and meeting other After considering comment on this response to a SIP call, a state retains applicable CAA requirements. Such a issue, the EPA is in this final action broad discretion concerning how to revision of an emission limitation will establishing a deadline of November 22, revise its SIP, so long as that revision is need to be submitted as a SIP revision 2016, by which each affected state is to consistent with the requirements of the for the EPA’s approval if the existing respond to the SIP call. The deadline CAA. Some provisions that are affected limitation to be changed is already falls 18 months from the date of by this SIP call, for example an included in the SIP or if the existing SIP signature and dissemination of this final automatic exemption provision, have to relies on the particular existing finding of substantial inadequacy. be removed entirely and an affected emission limitation to meet a CAA Thereafter, the EPA will review the source could no longer depend on the requirement. In such instances, the EPA adequacy of that new SIP submission in exemption to avoid all liability for would review the SIP revision for accordance with the CAA requirements excess emissions during SSM events. consistency with all applicable CAA of sections 110(a), 110(k)(3), 110(l) and Some other provisions, for example a requirements. A state that chooses to 193, including the EPA’s interpretation problematic enforcement discretion revise particular emission limitations, in of the CAA reflected in the SSM Policy provision, could either be removed addition to removing or revising the as clarified and updated through this entirely from the SIP or retained if aspect of the existing SIP provision that rulemaking. The EPA believes that revised appropriately to apply only to is inconsistent with CAA requirements, states should be provided the maximum state enforcement personnel, in could include those revisions in the time allowable under CAA section accordance with the EPA’s same SIP submission that addresses the 110(k)(5) in order to have sufficient time interpretation of the CAA as described SSM provisions identified in the SIP to make appropriate SIP revisions in the EPA’s SSM Policy. The EPA notes call, or it could submit them separately. following their own SIP development that if a state removes a SIP provision The implications for a regulated process. Such a schedule will allow for that pertains to the state’s exercise of source in a given state, in terms of

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whether and how it would potentially (NSR) program and restrictions on otherwise applicable emission have to change its equipment or highway funding. More details limitations in a SIP, i.e., emissions that practices in order to operate with concerning the timing and process of would be violations of such emission emissions that comply with the revised the SIP call, and potential consequences limitations. The question of how to SIP, will depend on the nature and of the SIP call, are provided in section address excess emissions correctly frequency of the source’s SSM events VIII of this document. during SSM events has posed a and how the state has chosen to revise G. What is the status of SIP provisions challenge since the inception of the SIP the SIP to address excess emissions affected by this SIP call action in the program in the 1970s. The primary during SSM events. The EPA did not interim period starting when the EPA objective of state and federal regulators conduct an analysis that would indicate, promulgates the final SIP call and is to ensure that sources of emissions e.g., how many owners or operators of ending when the EPA approves the are subject to appropriate emission sources in each affected state would required SIP revision? controls as necessary in order to attain likely change any procedures or and maintain the NAAQS, protect PSD processes for control of emissions from When the EPA issues a final SIP call increments, improve visibility and meet those sources during periods of SSM. to a state, that action alone does not other statutory requirements. Generally, The impacts of revised SIP provisions cause any automatic change in the legal this is achieved through enforceable will be unique to each affected state and status of the existing affected emission limitations on sources that its particular mix of affected sources, provision(s) in the SIP. During the time apply, as required by the CAA, and thus the EPA cannot predict what that the state takes to develop a SIP continuously. revision in response to the SIP call and those impacts might be. Furthermore, Several key statutory provisions of the the EPA does not believe the results of the time that the EPA takes to evaluate and act upon the resulting SIP CAA are relevant to the EPA’s such analysis, had one been conducted, evaluation of the Petition. These would significantly affect this submission from the state pursuant to CAA section 110(k), the existing provisions relate generally to the basic rulemaking that pertains to whether SIP legal requirements for the content of provisions comply with CAA affected SIP provision(s) will remain in place. The EPA notes, however, that the SIPs, the authority and responsibility of requirements. The EPA recognizes that air agencies to develop such SIPs and after all the responsive SIP revisions are state regulatory revisions that the state the EPA’s authority and responsibility in place and are being implemented by has adopted and submitted for SIP to review and approve SIP submissions the states, some sources may need to approval will most likely be already in in the first instance, as well as the EPA’s take steps to control emissions better so effect at the state level during the authority to require improvements to a as to comply with emission limitations pendency of the EPA’s evaluation of and previously approved SIP if the EPA later continuously, as required by the CAA, action upon the new SIP submission. determines that to be necessary for a SIP or to increase durability of components The EPA recognizes that in the to meet CAA requirements. In addition, and monitoring systems to detect and interim period, there may continue to be the Petition raised issues that pertain to manage malfunctions promptly. instances of excess emissions that The EPA Regional Offices will work adversely affect attainment and enforcement of provisions in a SIP. The with states to help them understand maintenance of the NAAQS, interfere enforcement issues relate generally to their options and the potential with PSD increments, interfere with what constitutes a violation of an consequences for sources as the states visibility and cause other adverse emission limitation in a SIP, who may prepare their SIP revisions in response consequences as a result of the seek to enforce against a source for that to this SIP call. impermissible provisions. The EPA is violation, and whether the violator particularly concerned about the should be subject to monetary penalties F. What happens if an affected state potential for serious adverse as well as other forms of judicial relief fails to meet the SIP submission consequences for public health in this for that violation. deadline? interim period during which states, the The EPA has a longstanding If, in the future, the EPA finds that a EPA and sources make necessary interpretation of the CAA with respect state that is subject to this SIP call adjustments to rectify deficient SIP to the treatment of excess emissions action has failed to submit a complete provisions and take steps to improve during periods of SSM in SIPs. This SIP revision as required, or the EPA source compliance. However, given the statutory interpretation has been disapproves such a SIP revision, then need to resolve these longstanding SIP expressed, reiterated and elaborated the finding or disapproval would trigger deficiencies in a careful and upon in a series of guidance documents an obligation for the EPA to impose a comprehensive fashion, the EPA issued in 1982, 1983, 1999 and 2001. In federal implementation plan (FIP) believes that providing sufficient time addition, the EPA has applied this within 24 months after that date. That consistent with statutory constraints for interpretation in individual rulemaking FIP obligation would be discharged these corrections to occur will actions in which the EPA: (i) Approved without promulgation of a FIP only if ultimately be the best course to meet the SIP submissions that were consistent the state makes and the EPA approves ultimate goal of eliminating the with the EPA’s interpretation; 14 (ii) the called-for SIP submission. In inappropriate SIP provisions and disapproved SIP submissions that were addition, if a state fails to make the replacing them with provisions not consistent with this required SIP revision, or if the EPA consistent with CAA requirements. interpretation; 15 (iii) itself promulgated disapproves the required SIP revision, regulations in FIPs that were consistent then either event can also trigger III. Statutory, Regulatory and Policy Background mandatory 18-month and 24-month 14 See ‘‘Approval and Promulgation of sanctions clocks under CAA section The Petition raised issues related to Implementation Plans; Texas; Excess Emissions 179. The two sanctions that apply under excess emissions from sources during During Startup, Shutdown, Maintenance, and CAA section 179(b) are the 2-to-1 periods of SSM and the correct Malfunction Activities,’’ 75 FR 68989 (November 10, 2010). emission offset requirement for all new treatment of these excess emissions in 15 See ‘‘Approval and Promulgation of State and modified major sources subject to SIPs. In this context, ‘‘excess emissions’’ Implementation Plans; Michigan,’’ 63 FR 8573 the nonattainment new source review are air emissions that exceed the (February 20, 1998).

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with this interpretation; 16 or (iv) issued interfere with effective enforcement of provisions to revise them so that they a SIP call requiring a state to revise an SIPs, are real-world consequences that are consistent with the EPA’s 1999 SSM impermissible SIP provision.17 adversely affect public health. Guidance for excess emissions during The EPA’s SSM Policy is a policy Commenters on the February 2013 SSM events; and (ii) to issue a SIP call statement and thus constitutes proposal provided illustrative examples pursuant to CAA section 110(k)(5) to guidance. As guidance, the SSM Policy of impacts that these types of SIP states with provisions inconsistent with does not bind states, the EPA or other provisions have on the communities the EPA’s interpretation of the CAA.25 parties, but it does reflect the EPA’s located near sources that rely on The Petitioner requested that the EPA interpretation of the statutory automatic or discretionary exemptions rescind its SSM Policy element requirements of the CAA. The EPA’s for excess emissions during SSM events, interpreting the CAA to allow SIPs to evaluation of any SIP provision, rather than by designing, operating and include affirmative defenses for whether prospectively in the case of a maintaining their sources to meet the violations due to excess emissions new provision in a SIP submission or applicable emission limitations.21 These during any type of SSM events because retrospectively in the case of a comments also illustrated the ways in the Petitioner contended there is no previously approved SIP submission, which such exemptions, incorrect legal basis for the Agency’s must be conducted through a notice- enforcement discretion provisions and interpretation. Specifically, the and-comment rulemaking in which the affirmative defense provisions have Petitioner cited to two statutory EPA will determine whether a given SIP interfered with the enforcement grounds, CAA sections 113(b) and provision is consistent with the structure of the CAA by raising 113(e), related to the type of judicial requirements of the CAA and applicable inappropriate impediments to relief available in an enforcement regulations.18 enforcement by states, the EPA or proceeding and to the factors relevant to The Petition raised issues related to citizens. the scope and availability of such relief, excess emissions from sources during The EPA’s memorandum providing a periods of SSM, and the consequences that the Petitioner claimed would bar detailed discussion of the statutory, the approval of any type of affirmative of failing to address these emissions regulatory and policy background for correctly in SIPs. In broad terms, the defense provision in SIPs. The this action can be found in the docket Petitioner drew no distinction between Petitioner expressed concerns that the for this rulemaking.22 exemptions for excess emissions and the affirmative defense provisions for other types of alleged deficiencies in IV. Final Action in Response To malfunctions versus affirmative defense existing SIP provisions ‘‘undermine the Request To Rescind the EPA Policy provisions for startup and shutdown or emission limits in SIPs and threaten Interpreting the CAA To Allow other normal modes of operation; in the states’ abilities to achieve and maintain Affirmative Defense Provisions Petitioner’s view all are equally the NAAQS, thereby threatening public inconsistent with CAA requirements. A. What the Petitioner Requested health and public welfare, which In the Petitioner’s view, the CAA includes agriculture, historic properties The Petitioner’s first request was for ‘‘unambiguously grants jurisdiction to and natural areas.’’ 19 The Petitioner the EPA to rescind its SSM Policy the district courts to determine penalties asserted that such exemptions for SSM element interpreting the CAA to allow that should be assessed in an events are ‘‘loopholes’’ that can allow affirmative defense provisions in SIPs enforcement action involving the dramatically higher amounts of for excess emissions during SSM violation of an emissions limit.’’ 26 The emissions and that these emissions ‘‘can events.23 Related to this request, the Petitioner first argued that in any swamp the amount of pollutants emitted Petitioner also asked the EPA: (i) To judicial enforcement action in a district at other times.’’ 20 In addition, the find that SIPs containing an affirmative court, CAA section 113(b) provides that Petitioner argued that these automatic defense to monetary penalties for excess ‘‘such court shall have jurisdiction to and discretionary exemptions, as well as emissions during SSM events are restrain such violation, to require other SIP provisions that interfere with substantially inadequate because they compliance, to assess such penalty, . . . the enforcement structure of the CAA, do not comply with the CAA; and (ii) and to award any other appropriate undermine the objectives of the CAA. to issue a SIP call pursuant to CAA relief.’’ The Petitioner reasoned that the The EPA notes that the types of SIP section 110(k)(5) to require each such EPA’s SSM Policy is therefore deficiencies identified in the Petition state to revise its SIP.24 Alternatively, if fundamentally inconsistent with the are not legal technicalities. Compliance the EPA denies these two related CAA because it purports to remove the with the applicable requirements is requests, the Petitioner asked the EPA: discretion and authority of the district intended to achieve the air quality (i) To require states with SIPs that courts to assess monetary penalties for protection and improvement purposes contain such affirmative defense violations if a source is shielded from and objectives of the CAA. The EPA monetary penalties under an affirmative believes that the results of automatic 21 The EPA notes that a number of commenters defense provision in the approved SIP.27 and discretionary exemptions in SIP described the impacts of SIP provisions of these The Petitioner concluded that the EPA’s provisions, and of other provisions that types. See, e.g., comments of Sierra Club, et al., EPA–HQ–OAR–2012–0322–0622, pp. 28–35 interpretation of the CAA in the SSM (describing impacts on several specific Policy element allowing any affirmative 16 See ‘‘Federal Implementation Plan for the communities); comments of American Bottom defenses is impermissible ‘‘because the Billings/Laurel, MT [Montana], Sulfur Dioxide Conservancy, EPA–HQ–OAR–2012–0322–0579 inclusion of an affirmative defense Area,’’ 73 FR 21418 (April 21, 2008). (describing impacts on one specific community); 17 See ‘‘Finding of Substantial Inadequacy of and comments of Citizen for Envt’l Justice and Env’l provision in a SIP limits the courts’ Implementation Plan; Call for Utah State Integrity Project, EPA–HQ–OAR–2012–0322–0621, discretion—granted by Congress—to Implementation Plan Revision,’’ 76 FR 21639 (April pp. 8–17 (discussing impacts of such provisions on assess penalties for Clean Air Act 18, 2011). enforcement more generally). violations.’’ 28 18 See generally Catawba County, North Carolina 22 See Memorandum, ‘‘Statutory, Regulatory, and v. EPA, 571 F.3d 20, 33–35 (D.C. Cir. 2009) Policy Context for this Rulemaking,’’ February 4, (upholding the EPA’s process for developing and 2013, in the rulemaking docket at EPA–HQ–OAR– 25 Petition at 12. applying its guidance for designations). 2012–0322–0029. 26 Petition at 10. 19 Petition at 2. 23 Petition at 11. 27 Id. 20 Petition at 12. 24 Id. 28 Id.

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Second, in reliance on CAA section that were consistent with the Agency’s why it now believes that the logic of the 113(e)(1), the Petitioner argued that in a interpretation of the CAA as set forth in court in the NRDC v. EPA decision judicial enforcement action in a district 1999 SSM Guidance and were limited to vacating the affirmative defense in an court, the statute explicitly specifies a malfunction events and other Agency emission limitation under CAA list of factors that the court is to affirmative defense provisions that were section 112 likewise extends to consider in assessing penalties.29 The not limited to malfunctions or otherwise affirmative defense provisions in SIPs. Petitioner argued that the EPA’s SSM not consistent with the Agency’s C. What Is Being Finalized in This Policy authorizes states to create interpretation of the CAA and included Action affirmative defense provisions with one or more deficiencies. criteria for monetary penalties that are Subsequent to the February 2013 The EPA is taking final action to grant inconsistent with the factors that the proposal, however, a judicial decision the Petition on the request to rescind its statute specifies and that the statute by the U.S. Court of Appeals for the SSM Policy element that interpreted the explicitly directs courts to weigh in any District of Columbia Circuit (D.C. CAA to allow states to elect to create judicial enforcement action. By Circuit) in NRDC v. EPA concerning the affirmative defense provisions in SIPs. specifying particular factors for courts to legal basis for affirmative defense The EPA is also taking final action to consider, the Petitioner reasoned, provisions in the EPA’s own regulations grant the Petition on the request to make Congress has already definitively caused the Agency to reconsider the a finding of substantial inadequacy and spoken to the question of what factors legal basis for any affirmative defense to issue SIP calls for specific existing are germane in assessing monetary provisions in SIPs, regardless of the type SIP provisions that include an penalties under the CAA for violations. of events to which they apply, the affirmative defense as identified in the The Petitioner concluded that the EPA criteria they may contain or the types of SNPR. The specific SIP provisions at has no authority to allow a state to judicial remedies they purport to limit issue are discussed in section IX of this include an affirmative defense provision or eliminate.32 Thus, the EPA issued an document. These existing affirmative in a SIP with different criteria to be SNPR to revise its proposed response to defense provisions include some considered in awarding monetary the Petition with respect to whether provisions that the EPA had previously penalties because ‘‘[p]reventing the affirmative defense provisions in SIPs determined were consistent with the district courts from considering these are consistent with fundamental legal CAA as interpreted in the 1999 SSM statutory factors is not a permissible requirements of the CAA.33 In the Guidance and other provisions that interpretation of the Clean Air Act.’’ 30 SNPR, the EPA also revised its proposed were not consistent even with that A more detailed explanation of the response related to each of the specific interpretation of the CAA. As explained Petitioner’s arguments appears in the affirmative defense provisions identified in the SNPR, the EPA has now 2013 February proposal.31 in the Petition. Changes to the proposed concluded that the enforcement response included revision of the basis structure of the CAA, embodied in B. What the EPA Proposed for the proposed finding of substantial section 113 and section 304, precludes In the February 2013 proposal, inadequacy for many of the provisions any affirmative defense provisions that consistent with its interpretation of the (to incorporate the EPA’s revised would operate to limit a court’s Act at that time, the EPA proposed to interpretation of the CAA into that jurisdiction or discretion to determine deny in part and to grant in part the basis). Other changes to the proposed the appropriate remedy in an Petition with respect to this overarching response included reversal of the enforcement action. These provisions issue. As a revision to the SSM Policy proposed denial of the Petition for some are not appropriate under the CAA, no as embodied in the 1999 SSM Guidance, provisions that the Agency previously matter what type of event they apply to, the EPA proposed a distinction between believed to be consistent with CAA what criteria they contain or what forms affirmative defenses for unplanned requirements but subsequently of remedy they purport to limit or events such as malfunctions and determined were not authorized by the eliminate. planned events such as startup and Act under the analysis prompted by the The EPA is revising its interpretation shutdown. The EPA explained the basis NRDC v. EPA decision. In order to of the CAA with respect to affirmative for its initial proposed action in detail, provide comprehensive guidance to all defenses based upon a reevaluation of including why the Agency then believed states concerning affirmative defense the statutory provisions that pertain to that there was a statutory basis for provisions in SIPs and to avoid enforcement of SIP provisions in light of narrowly drawn affirmative defense confusion that may arise due to recent recent court opinions. Section 113(b) provisions that met certain criteria court decisions relevant to such provides courts with explicit applicable to malfunction events but no provisions under the CAA, the EPA also jurisdiction to determine liability and to such statutory basis for affirmative addressed additional existing SIP impose remedies of various kinds, defense provisions applicable to startup affirmative defense provisions of which including injunctive relief, compliance and shutdown events. In the February it was aware although the provisions orders and monetary penalties, in 2013 proposal, the EPA also proposed to were not specifically identified in the judicial enforcement proceedings. This grant of jurisdiction comes directly from deny in part and to grant in part the Petition. The EPA initially examined the Congress, and the EPA is not authorized Petition with respect to specific specific affirmative defense provisions to alter or eliminate this jurisdiction affirmative defense provisions in the identified by the Petitioner in 14 states under the CAA or any other law. With SIPs of various states identified in the but subsequently broadened its review respect to monetary penalties, CAA Petition consistent with that to include additional provisions in four section 113(e) explicitly includes the interpretation. With respect to these states, including two states that were factors that courts and the EPA are specific existing SIP provisions, the EPA not included in the Petition. Most required to consider in the event of distinguished between those provisions importantly, the EPA provided a detailed explanation in the SNPR as to judicial or administrative enforcement 29 Petition at 11. for violations of CAA requirements, 30 Petition at 11. 32 See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. including SIP provisions. Because 31 See February 2013 proposal, 78 FR 12459 at 2014). Congress has already given federal 12468 (February 22, 2013). 33 See SNPR, 79 FR 55919 (September 17, 2014). courts the jurisdiction to determine

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what monetary penalties are appropriate exemptions, conditional or otherwise. Similarly, the absence of an in the event of judicial enforcement for This interpretation is consistent with affirmative defense provision in a SIP a violation of a SIP provision, neither the decision in Sierra Club v. Johnson does not alter the legal rights of sources the EPA nor states can alter or eliminate concerning the term ‘‘emission under the CAA. In the event of an that jurisdiction by superimposing limitation’’ in section 302(k).35 enforcement action for an exceedance of restrictions on that jurisdiction and Characterizing the exemptions as an a SIP emission limit, a source can elect discretion granted by Congress to the ‘‘affirmative defense’’ runs afoul of the to assert any common law or statutory courts. Affirmative defense provisions requirement that emission limitations defenses that it determines is supported, by their nature purport to limit or must apply continuously. based upon the facts and circumstances eliminate the authority of federal courts The EPA recognizes that the original surrounding the alleged violation. to determine liability or to impose policy objectives behind states’ Under section 113(b), courts have remedies through factual considerations affirmative defense provisions were explicit authority to impose injunctive that differ from, or are contrary to, the likely well-intentioned, e.g., to relief, issue compliance orders, assess explicit grants of authority in section encourage better source design, monetary penalties or fees and impose 113(b) and section 113(e). Accordingly, maintenance and operation through the any other appropriate relief. Under pursuant to section 110(k) and section incentive of being shielded from certain section 113(e), courts are required to 110(l), the EPA cannot approve any statutory remedies for violations under consider the enumerated statutory such affirmative defense provision in a certain specified conditions. factors when assessing monetary SIP. If such an affirmative defense Nevertheless, creation of SIP provisions penalties, including ‘‘such other factors provision is included in an existing SIP, that would operate to limit or eliminate as justice may require.’’ For example, if the EPA has authority under section the jurisdiction of courts to determine the exceedance of the SIP emission 110(k)(5) to require a state to remove liability or to impose remedies provided limitation occurs due to a malfunction, that provision. for by statute is inconsistent with the that exceedance is a violation of the States have great discretion in how to enforcement structure of the CAA. The applicable emission limitation, but the devise SIP provisions, but they do not EPA emphasizes that the absence of an source retains the ability to defend itself have discretion to create provisions that affirmative defense provision in a SIP, in an enforcement action and to oppose contradict fundamental legal whether as a freestanding generally the imposition of particular remedies or requirements of the CAA. The applicable provision or as a specific to seek the reduction or elimination of jurisdiction of federal courts to component of a particular emission monetary penalties, based on the determine liability and to impose limitation, does not mean that all specific facts and circumstances of the statutory remedies for violations of SIP exceedances of SIP emission limitations event. Thus, elimination of a SIP emission limitations is one such will automatically be subject to affirmative defense provision that fundamental requirement. The court in enforcement or automatically be subject purported to take away the statutory the recent NRDC v. EPA decision did to imposition of particular remedies. jurisdiction of the court to exercise its not remand the regulation to the EPA for Pursuant to the CAA, all parties with authority to impose remedies does not better explanation of the legal basis for authority to bring an enforcement action disarm sources in potential enforcement an affirmative defense; the court instead to enforce SIP provisions (i.e., the state, actions. Sources retain all of the vacated the affirmative defense and the EPA or any parties who qualify equitable arguments they could indicated that there could be no valid under the citizen suit provision of previously have made under an legal basis for such a provision because section 304) have enforcement affirmative defense provision; they must it contradicted fundamental discretion that they may exercise as they simply make such arguments to the requirements of the CAA concerning the deem appropriate in any given reviewing court as envisioned by jurisdiction of courts in judicial circumstances. For example, if the event Congress in section 113(b) and section enforcement of CAA requirements. A that causes excess emissions is an actual 113(e). Congress vested the courts with more detailed explanation of the EPA’s malfunction that occurred despite the authority to judge how best to weigh basis for determining that affirmative reasonable care by the source operator the evidence in an enforcement action defense provisions in SIPs are similarly to avoid malfunctions, then each of and determine appropriate remedies. contrary to the requirements of the CAA these parties may decide that no appears in the SNPR.34 Removal of such impermissible SIP enforcement action is warranted. In the Couching an affirmative defense affirmative defense provisions is event that any party decides that an provision in terms of merely defining necessary to preserve the enforcement enforcement action is warranted, then it whether the emission limitation applies structure of the CAA, to preserve the has enforcement discretion with respect and thus whether there is a ‘‘violation,’’ jurisdiction of courts to adjudicate to what remedies to seek from the court as suggested by some commenters, is questions of liability and remedies in for the violation (e.g., injunctive relief, also problematic. If there is no judicial enforcement actions and to compliance order, monetary penalties or ‘‘violation’’ when certain criteria or preserve the potential for enforcement all of the above), as well as the type of conditions for an ‘‘affirmative defense’’ by states, the EPA and other parties injunctive relief and/or amount of are met, then there is in effect no under the citizen suit provision as an monetary penalties sought.36 emission limitation that applies when Further, effective deterrent to violations. In turn, the criteria or conditions are met; the courts have the discretion under section this deterrent encourages sources to be affirmative defense thus operates to 113 to decline to impose penalties or properly designed, maintained and create an exemption from the emission injunctive relief in appropriate cases as operated and, in the event of violation limitation. As explained in the February explained below. of SIP emission limitations, to take 2013 proposal, the CAA requires that appropriate action to mitigate the emission limitations must apply 35 551 F.3d 1019 (D.C. Cir. 2008). impacts of the violation. In this way, as 36 The EPA notes that only the state and the intended by the existing enforcement continuously and cannot contain Agency have authority to seek criminal penalties for knowing and intentional violation of CAA structure of the CAA, sources can 34 See 79 FR 55919 at 12931–34 (September 17, requirements. The EPA has this explicit authority mitigate the potential for enforcement 2014). under section 113(c). actions against them and the remedies

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that courts may impose upon them in that the NRDC v. EPA decision did not legal validity of an affirmative defense such enforcement actions, based upon address the issue of affirmative defense provision created by the EPA in the facts and circumstances of the event. provisions in SIPs. The commenters conjunction with a specific NESHAP, argued that the D.C. Circuit’s opinion the court based its decision upon the D. Response to Comments Concerning only stands for the narrow proposition provisions of sections 113 and 304. Affirmative Defense Provisions in SIPs that the EPA may not include an Sections 113 and 304 pertain to The EPA received numerous affirmative defense to civil penalties in enforcement of the CAA requirements comments concerning the portion of the a NESHAP 37 under CAA section 112. more broadly, including to enforcement Agency’s proposed response to the One commenter noted that the EPA, of SIP requirements. The court Petition in the February 2013 proposal in the SNPR, stated that the NRDC v. addressed section 112 and not sections that addressed the question of whether EPA decision did not turn on any factors germane specifically to SIPs, as only affirmative defense provisions are specific to CAA section 112 as support that section was before it. The EPA has consistent with CAA requirements for for the EPA applying the decision to applied the NRDC court’s analysis to SIPs. As explained in the SNPR, those SIPs. However, the commenter argued sections 113 and 304 with respect to particular comments submitted on the that this fact is not probative because SIPs and has concluded that the NRDC original February 2013 proposal are no neither party raised any argument court’s analysis is the better reading of longer germane, given that the EPA has specific to CAA section 112 and it is the statutory provisions. substantially revised its initial proposed reasonable for a court to limit its The affirmative defense provision in action on the Petition and its basis, both analysis to the arguments presented the Portland Cement NESHAP required with respect to the overarching issue of before it. the source to prove, by a preponderance whether such provisions are valid in One commenter also noted that the of the evidence in an enforcement SIPs under the CAA and with respect to EPA is not bound to apply D.C. Circuit proceeding, that the source met specific specific affirmative defense provisions law to actions reviewable in other criteria concerning the nature of the in existing SIPs of particular states. circuits. event. These specific criteria required to Accordingly, as the EPA indicated in Response: As explained in the SNPR, establish the affirmative defense in the the SNPR, it considers those particular the EPA believes the reasoning of the Portland Cement NESHAP are comments on the February 2013 court in the NRDC v. EPA decision functionally the same as the criteria that proposal no longer relevant and has indicates that states, like the EPA, have the EPA previously recommended to determined that it is not necessary to no authority in SIP provisions to alter states for SIP provisions in the 1999 respond to them. Concerning affirmative the jurisdiction of federal courts to SSM Guidance and that the EPA defense provisions, the appropriate assess penalties for violations of CAA repeated in the February 2013 proposal focus of this rulemaking is on the requirements through affirmative document. Accordingly, the EPA comments that addressed the EPA’s defense provisions.38 If states lack believes that the opinion of the court in revised proposal in the SNPR. authority under the CAA to alter the NRDC v. EPA has significant impacts on With respect to the revised proposal jurisdiction of the federal courts through the Agency’s SSM Policy with respect to concerning affirmative defense affirmative defense provisions in SIPs, affirmative defense provisions. The provisions in the SNPR, the EPA then the EPA lacks authority to approve reasoning by the NRDC court, as received numerous comments, some any such provision in a SIP. logically extended to SIP provisions, supportive and some critical of the The EPA agrees with the commenters’ indicates that neither states nor the EPA Agency’s proposed action on the statement that the NRDC v. EPA have authority to alter either the rights Petition as revised in the SNPR. Many decision pertained to a challenge to the of other parties to seek relief or the of these comments raised conceptual EPA’s NESHAP regulations issued jurisdiction of federal courts to impose issues and arguments concerning the pursuant to CAA section 112 to regulate relief for violations of CAA EPA’s revised interpretation of the CAA hazardous air pollutants (HAPs) from requirements in SIPs. The EPA believes with respect to affirmative defense sources that manufacture Portland that the court’s decision in NRDC v. provisions in SIPs in light of the NRDC cement. However, the EPA disagrees EPA compelled the Agency to v. EPA decision and concerning the with the commenters’ contention that, reevaluate its interpretation of the CAA EPA’s application of that interpretation because the NRDC v. EPA decision was as described in the SNPR. to specific affirmative defense The EPA also disagrees with based on a NESHAP, it is somehow provisions discussed in the SNPR. For commenters who suggested that a inappropriate for the EPA to rely on the clarity and ease of discussion, the EPA decision of the D.C. Circuit should have reasoning of the D.C. Circuit’s decision is responding to these overarching no bearing on actions that affect states as a basis for this action. comments, grouped by issue, in this in other circuit courts. The CAA vests As acknowledged by a commenter, section of this document. authority with the D.C. Circuit to review the EPA explained in the SNPR that the 1. Comments that the EPA is nationally applicable regulations and NRDC v. EPA decision did not turn on misapplying the decision of the D.C. any action of nationwide scope or effect. the specific provisions of CAA section Circuit in NRDC v. EPA to SIP 39 Accordingly, any decision of the D.C. provisions because the decision only 112. However, the commenter missed Circuit in conducting such review is applies to the Agency’s own regulations the importance of this point. Although binding nationwide with respect to the pursuant to CAA section 112. the NRDC v. EPA decision analyzed the action under review, and the D.C. Comment: Many commenters stated Circuit’s reasoning is also binding with 37 The NESHAPs are found in 40 CFR part 61 and that the EPA’s reliance on the D.C. 40 CFR part 63. The NESHAPs promulgated after respect to review of future EPA actions Circuit’s decision in NRDC v. EPA is the 1990 CAA Amendments are found in 40 CFR raising the same issues that will be misplaced in the SNPR because the part 63. These standards require application of subject to review within that Circuit. opinion is limited to disapproval of a technology-based emissions standards referred to as Given that the EPA has determined that Maximum Achievable Control Technology (MACT). Maximum Achievable Control Consequently, these post-1990 NESHAPs are also this action has nationwide scope and Technology (MACT) standard’s referred to as MACT standards. effect, it is subject to exclusive review affirmative defense for unavoidable 38 See 79 FR 55929–30; 55931–34. in the D.C. Circuit, so the EPA believes malfunctions. The commenters noted 39 SNPR, 79 FR 55919 at 55932. it is appropriate to apply the reasoning

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of the NRDC court, which interprets State has commenced and is diligently instance, whether a violation has CAA sections 113 and 304, to determine prosecuting a civil action in a court of occurred. the legality of affirmative defense the United States.’’ Response: The EPA disagrees with the provisions in this national action.40 Response: The EPA does not agree commenters’ arguments that affirmative 2. Comments that the EPA is with the commenter’s premise that the defense provisions are appropriate in misapplying the decision of the D.C. NRDC court erred by not considering SIPs if they merely define what Circuit in NRDC v. EPA to SIP section 304(b) as well as section 304(a). constitutes a violation. As explained in provisions because the court did not As the court correctly reasoned, section detail in the SNPR, the EPA believes address the legality of affirmative 304(a) authorizes any person to bring an that SIP provisions with affirmative defense provisions in SIPs. enforcement action for violations of defenses that operate to limit or Comment: Many commenters alleged emission limitations. Section 304(f) eliminate the jurisdiction of the courts that the EPA inappropriately relied on defines the term ‘‘emission limitation’’ to determine liability and to impose the D.C. Circuit’s decision in NRDC v. for this purpose very broadly. Section remedies are not consistent with CAA EPA in the SNPR because the court 304(b) does not alter the rights of any requirements. Under the commenters’ specifically stated that its decision did person who has given proper notice to theory, such provisions would not not address whether affirmative defense bring such an action under section improperly impinge on the jurisdiction provisions in SIPs were appropriate. 304(a), unless the EPA or the state is of the courts to impose remedies for The commenters pointed to the second diligently prosecuting a civil action to violations by redefining what footnote in the decision, in which the require compliance. The fact that constitutes a ‘‘violation.’’ court explicitly stated: ‘‘We do not here section 304(b) limits the ability of any First, the EPA does not agree that all confront the question whether an person to bring an enforcement action affirmative defense provisions in the affirmative defense may be appropriate (as opposed to intervening in such SIPs at issue in this action are in a State Implementation Plan.’’ 41 action) if the EPA or the state is constructed in this way. Some, Accordingly, the commenters argued pursuing enforcement has no bearing including those that the EPA previously that the NRDC v. EPA decision is ‘‘non- upon whether the EPA or a state could approved as consistent with the binding’’ with respect to SIP provisions. seek to alter or eliminate the jurisdiction Agency’s 1999 SSM Guidance, Response: The EPA disagrees that the of the courts to determine liability or to explicitly provide that the excess footnote relied upon by commenters impose remedies for violations of SIP emissions that occur are still violations, renders application of the legal emission limitations in judicial but a source could be excused from interpretation of the NRDC court to SIP enforcement. The EPA also does not monetary penalties if the source met the provisions improper. The EPA believe that this rulemaking is the criteria for the affirmative defense. specifically acknowledged and appropriate forum in which to challenge Under the EPA’s prior interpretation of discussed the footnote in the NRDC v. the court’s decision. the CAA, the legal basis for any EPA decision in the SNPR. The EPA 4. Comments that the court’s affirmative defense started with the fact explained its view of the significance of reasoning in the NRDC v. EPA decision that the excess emissions still the footnote: ‘‘footnote 2 in the opinion does not apply to affirmative defenses in constituted a violation and injunctive does not signify that the court intended SIP provisions because if a source relief would still be available as to take any position with respect to the qualifies for an affirmative defense, then appropriate. As explained in the SNPR application of its interpretation of the there has been no violation. and this document, the EPA no longer CAA to SIP provisions, let alone to Comment: Several commenters stated interprets the CAA to allow even suggest that its interpretation would not that the D.C. Circuit’s analysis in the narrowly drawn affirmative defense apply more broadly.’’ As discussed in NRDC v. EPA opinion is based on provisions in SIPs, let alone those the SNPR in detail, the EPA believes the statutory language that indicates advocated by the commenters that logic of the court’s decision in NRDC v. Congress intended the courts, not the would provide a complete bar to any EPA regarding the interpretation of EPA, to decide what constitutes an type of judicial remedy provided for in sections 113 and 304 concerning appropriate penalty once a violation has section 113(b). affirmative defenses does extend to SIP occurred. The commenters argued that if Second, even if a specific affirmative provisions. a SIP provision contains an affirmative defense provision were worded in the 3. Comment that the EPA is defense, and if a source meets the way that the commenters’ claim, then inappropriately relying on the NRDC v. requirements to qualify for that that provision would be deficient for EPA decision because the DC Circuit’s affirmative defense, then there is no other reasons. Under the commenters’ decision was decided in error. violation of the SIP requirements. One premise, if certain criteria are met then Comment: One commenter alleged commenter contended that if there is no there is no ‘‘violation’’ for excess that the EPA’s reliance on the NRDC v. violation, then the courts have no emissions during SSM events. The EPA decision is misplaced because the jurisdiction to award any remedies and EPA’s view is that this formulation of an court in that decision mistakenly relied thus there can be no concern that the affirmative defense in effect means that on section 304(a) when holding that the affirmative defense provision alters or there is no emission limitation that EPA cannot restrict the jurisdiction of eliminates the jurisdiction of the courts. applies when the criteria are met, i.e., the courts with affirmative defense Another commenter argued that the affirmative defense operates to provisions. The commenter alleged that affirmative defense provisions in the create a conditional exemption for Congress did not intend to give the context of a SIP can be described as emissions from the source during SSM judiciary ‘‘fully-unfettered discretion’’ limitations on the application of an events. Such an approach would be in section 304(a) because such a reading emission limitation to the conditions inconsistent with the decision in Sierra cannot be squared with section 304(b), under which the emission reduction Club v. Johnson concerning the term which provides that ‘‘[n]o action can be technology can be effectively operated. ‘‘emission limitation’’ in section commenced . . . if the Administrator or The commenters stated that the NRDC 302(k).42 Exemptions for emissions court did not address the EPA’s or during SSM events, whether automatic 40 CAA section 307(b)(1). states’ authority to establish 41 749 F.3d 1055, 1064, n.2. requirements that determine, in the first 42 551 F.3d 1019 (D.C. Cir. 2008).

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or conditional based upon the criteria of obligated to develop SIP provisions that citizen suit under federal regulations an affirmative defense, are inconsistent meet fundamental CAA requirements. does not dictate the appropriateness of with the requirement for continuous The EPA has the responsibility to similar provisions in the context of state controls on sources. review SIP provisions developed by administrative or civil actions. Finally, the EPA believes that the states to ensure that they in fact meet According to the commenters, a SIP commenters’ premise that an affirmative fundamental CAA requirements. As represents an air quality management defense provision merely defines what a explained in the SNPR and this system and the state administrative violation is also runs afoul of other document, the EPA no longer believes process is distinct from federal citizen fundamental requirements for SIP that affirmative defense provisions meet suits. Similarly, the commenters provisions. To the extent any such CAA requirements. Based on the logic of believed that SIP emission limitations provision would allow state personnel the court in the NRDC v. EPA decision, are enforceable via state regulation to decide, unilaterally, whether excess the better reading of the statute is that penalty provisions that are separate emissions during an SSM event such provisions have the effect of from the CAA civil penalty provisions. constitute a violation (e.g., through limiting or eliminating the statutory Because the NRDC court spoke only to application of an ‘‘affirmative defense’’), jurisdiction of the courts to determine the appropriateness of affirmative this would interfere with the ability of liability or impose remedies. defense provisions in the context of the EPA or other parties to enforce for The EPA also disagrees with the federal citizen suits, the commenters violations of SIP requirements. The EPA commenters’ arguments that ‘‘emission asserted, the decision is inapplicable in interprets the CAA to prohibit SIP limitations’’ under section 112 and the EPA’s SIP call action. provisions that impose the enforcement section 110 are not comparable with Response: The EPA agrees that the discretion decisions of a state on other respect to meeting fundamental CAA court in the NRDC v. EPA decision did parties. This includes provisions that requirements. As an initial matter, both not speak directly to the issue of are structured or styled as an affirmative section 112 MACT standards and whether states can establish affirmative defense but in effect allow ad hoc section 110 SIP emission limitations can defenses to be used by sources conditional exemptions from emission be composed of various elements that exclusively in state administrative limitations and preclude enforcement include, among other things, numerical enforcement actions or in judicial for excess emission during SSM events. emission limitations, work practice enforcement in state courts. The 5. Comments that the NRDC v. EPA standards and monitoring and reasoning of the NRDC court indicates decision, which concerned an emission recordkeeping requirements. However, only that such provisions would be limitation under section 112, does not whether there are other components that inconsistent with the CAA in the apply in the context of section 110, are part of the emission limitation to context of judicial enforcement of SIP because section 110 affords states make it apply continuously is not requirements in federal court. Indeed, flexibility in how to develop emission relevant for purposes of determining the NRDC court suggested that if the limitations in SIP provisions. whether an affirmative defense EPA elected to consider factors Comment: Commenters argued that provision that provides relief from comparable to the affirmative defense the EPA’s extension of the logic of the penalties for a violation of either a criteria in its own administrative NRDC v. EPA decision to affirmative MACT standard under section 112 or a enforcement proceedings, it may be able defenses in SIP provisions is incorrect SIP provision under section 110 is to do so. The implication of the because the EPA’s NESHAP standards consistent with the CAA. commenters, however, is that the EPA are governed by section 112, whereas As explained in the SNPR, the EPA should interpret the CAA to allow SIP provisions are governed by section has revised its interpretation of the CAA affirmative defenses in SIP provisions, 110. Under the latter, commenters with respect to affirmative defense so long as it is unequivocally clear that asserted, states are afforded wide provisions in SIPs, based upon the logic sources cannot assert the affirmative discretion in how to develop emission of the court in the NRDC v. EPA defenses in federal court enforcement limitations.43 The commenters stated decision. Section 304(a) sets forth the actions and cannot assert the affirmative that section 110 governs the basis for a civil enforcement action and defenses in enforcement actions brought development of state SIPs to satisfy the section 113(a)(1) does the same for by any party other than the state. NAAQS, which may address many administrative or judicial enforcement The EPA of course agrees that states different types of sources, major and actions brought by the EPA. Sections can exercise their own enforcement minor, industrial and non-industrial, 113(b) and 304(a) provide the federal discretion and elect not to bring an small and large, and old and new. The district courts with jurisdiction to hear enforcement action or seek certain commenters alleged that states have civil enforcement cases. Furthermore, remedies, using criteria analogous to an independent authority to include section 113(e) confers jurisdiction on affirmative defense. It does not follow, affirmative defenses in SIP provisions, the district court in a civil enforcement however, that states can impose this so long as the provisions are otherwise case to determine the amount of penalty enforcement discretion on other parties approvable, because the state has met its to be assessed where a violation has by adopting SIP provisions that would section 110 planning responsibilities been established. apply in federal judicial enforcement, or and the SIP is enforceable. 6. Comments that the NRDC v. EPA in enforcement brought by the EPA or Response: The EPA agrees with the decision does not pertain to the other parties. To the extent that the state commenters that section 110 governs appropriateness of affirmative defense developed an ‘‘enforcement discretion’’ the development of state SIPs and that provisions in the context of state type provision that applied only in its states are accorded great discretion in administrative or civil enforcement. own administrative enforcement actions determining how to meet CAA Comment: Some commenters noted or only with respect to enforcement requirements in SIPs. However, as that the NRDC court only reviewed actions brought by the state in state explained in the February 2013 whether affirmative defense provisions courts, such a provision may be proposal, the SNPR and sections IV.D.13 could be used to limit CAA citizen suit appropriate. This authority is not and V.D.2 of this document, states are remedies in judicial enforcement unlimited because the state could not actions. The commenters alleged that create affirmative defense provision that 43 See, e.g., Train v. NRDC, 421 U.S. 60, 79 (1975). the use of an affirmative defense in a in effect undermines its legal authority

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to enforce SIP requirements. Section with the Fifth Circuit’s holding. One defense provisions for malfunctions.47 110(a)(2)(C) requires states to have a commenter noted that if the NRDC court The commenters alleged that other than program that provides for enforcement believed that the issue it was deciding calling the NRDC v. EPA decision a of the state’s SIP, and enforcement was the same as the issue decided in newer decision, the EPA did not explain discretion provisions that unreasonably Luminant Generation v. EPA, the D.C. its justification for relying on the NRDC limit the state’s own authority to enforce Circuit would have explicitly stated that v. EPA opinion instead of following the the requirements of the SIP would be it was declining to follow the Fifth three circuit court decisions that are inconsistent with section 110(a)(2)(C). Circuit on the issue instead of directly on point. The EPA’s obligations with respect to acknowledging that the issue upon Response: The EPA disagrees with the SIPs include determining whether states which the Fifth Circuit ruled was not commenters’ arguments concerning the application of the court’s decision in have adequate enforcement authority. before the D.C. Circuit. 7. Comments that the EPA’s proposal Luminant Generation v. EPA to this SIP is inappropriate because it runs counter Several commenters also argued that, call action. As explained in the SNPR, to previous court decisions, including because the Fifth Circuit previously the EPA acknowledges that it has the decision of the U.S. Court of determined in Luminant Generation v. previously approved affirmative Appeals for the Fifth Circuit (Fifth EPA that the Texas SIP affirmative defenses in SIP provisions or, when Circuit) in Luminant Generation v. EPA. defense provision at issue in this SIP appropriate, promulgated affirmative Comment: Many commenters on the call action is consistent with CAA defenses in FIPs. The EPA also SNPR argued that the decision of the sections 113 and 304, the EPA does not acknowledged that its approval of an Fifth Circuit in Luminant Generation v. have any legal authority under the CAA affirmative defense provision applicable EPA precludes the EPA’s proposed to finalize the action proposed in SNPR. to ‘‘unplanned events’’ (i.e., action concerning affirmative defenses Some commenters further stated that the malfunctions) in a Texas SIP submission in SIP provisions, in general and with EPA lacks authority to disagree with the was upheld in 2012 by the U.S. Court respect to the provisions in the Texas Fifth Circuit’s determination of the law of Appeals for the Fifth Circuit. In that SIP in particular. The commenters noted as applied to a state within the Fifth litigation, the EPA argued that sections that the court upheld the EPA’s Circuit’s jurisdiction. These commenters 113 and 304 do not preclude approval of an affirmative defense believed that if the EPA were to finalize appropriately drawn affirmative defense provision for unavoidable excess the action discussed in the SNPR with provisions for malfunctions in SIPs. emissions during unplanned SSM respect to the affirmative defense for Importantly, in upholding the EPA’s events in the Texas SIP.44 The malfunctions in the Texas SIP, this approval of the affirmative defense, the commenters argued that the Fifth action would violate the mandate rule. Fifth Circuit determined that Chevron Circuit ruled that in approving the Some commenters also alleged that step 1 was not applicable to this case and ‘‘turn[ed] to step two of Chevron’’ 48 Texas SIP affirmative defense provision, courts outside the Fifth Circuit, in holding that the Agency’s the EPA ‘‘acted neither contrary to law including the D.C. Circuit, will apply interpretation of the CAA at that time nor in excess of its statutory principles of claim preclusion, or res 45 was a ‘‘permissible interpretation of authority.’’ According to the judicata, to give effect to the Fifth 49 commenters, the court specifically section [113], warranting deference.’’ Circuit’s prior adjudication on the legal The Fifth Circuit did not determine that considered and rejected arguments by basis for the affirmative defense in the litigants concerning sections 113 and the EPA’s interpretation at the time of Texas SIP. One commenter claimed that the Luminant Generation v. EPA 304. Some commenters argued that the the EPA’s ‘‘failure’’ to address how the decision was the only or even the best court also considered and ‘‘decisively holdings in Luminant Generation v. permissible interpretation. It is clearly rejected’’ the legal arguments articulated EPA will no longer apply and how the within the EPA’s legal authority to now by the EPA in the SNPR. The EPA is exempt from the court’s mandate revise its interpretation to a different, commenters alleged that the Luminant render the theories presented in the but still permissible, interpretation of Generation v. EPA decision SNPR unsupported as a basis for the SIP the statute.50 The EPA has explained at demonstrates that affirmative defenses call action. length in the SNPR, and elsewhere in for malfunctions are permissible in SIP this final rulemaking, its reasons for provisions. The commenters contended Some commenters alleged that the changing its previous interpretation of that, because the Fifth Circuit in EPA is bound by its own prior Luminant Generation v. EPA representations before the Fifth Circuit, in which it asserted and defended its 47 See Montana Sulphur & Chemical Co. v. EPA, specifically considered whether an 666 F.3d 1174 (9th Cir. 2012); Arizona Public affirmative defense provision applicable approval of the affirmative defense Service Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009). to malfunctions included in a SIP provision for malfunctions in the Texas 48 714 F.3d at 852. violates the CAA, unlike the D.C. Circuit SIP, under the doctrine of judicial 49 Id. at 853. in NRDC v. EPA, the EPA should follow estoppel.46 Similarly, the commenters 50 See, e.g., Nat’l Cable & Telecomms. Ass’n v. alleged that under the doctrine of issue Brand X Internet Servs., 545 U.S. 967 (2005) and the Luminant Generation v. EPA FCC v. Fox Television Stations, Inc., 556 U.S. 502 decision rather than the D.C. Circuit preclusion, or collateral estoppel, the (2009). The Agency also notes that commenters’ decision in NRDC v. EPA. EPA is precluded from re-litigating the position, that the EPA cannot now change its issues previously considered and interpretation of the CAA, is at odds with the SIP Some commenters also pointed out call provision established by Congress in section that the D.C. Circuit, in the recent NRDC determined by the Fifth Circuit, 110(k)(5). That provision provides the EPA with v. EPA decision, mentioned and cited regardless of where any subsequent authority to issue a SIP call ‘‘whenever’’ it the Luminant Generation v. EPA challenge to this final action is brought. determines that an existing SIP is substantially inadequate to meet CAA requirements. In other opinion and did not expressly disagree Some commenters also cited to other words, section 110(k)(5) expressly envisions cases circuit court decisions that have upheld where the EPA has previously approved a SIP 44 714 F.3d 841 (5th Cir. 2013). the EPA’s approvals of affirmative provision as meeting CAA requirements, and one 45 Id. at 853. The EPA notes that the Fifth Circuit that the EPA may have even defended in court, but also upheld the Agency’s disapproval of the later determines that the provision no longer meets affirmative defense provisions that the state sought 46 See, e.g., New Hampshire v. Maine, 532 U.S. CAA requirements, and section 110(k)(5) gives the to create for ‘‘planned’’ events. 742, 749 (2001). EPA authority to issue a SIP call in these situations.

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the CAA to permit narrowly drawn the EPA may elect to address these liability and to impose appropriate affirmative defenses applicable only to provisions in a separate rulemaking. remedies, based on the facts and penalties and has explained why it now The EPA also disagrees with circumstances surrounding the believes that the reasoning of the court commenters’ allegations that this final violation. To the extent that there are in the NRDC v. EPA decision is the SIP call action violates the mandate extenuating circumstances that justify better reading of the CAA. rule. The mandate rule generally not holding a source responsible for a Some commenters allege that the Fifth governs how a lower court handles a violation or not imposing particular Circuit considered and rejected the legal higher court’s decision on remand. The remedies as a result of a violation, arguments articulated by the EPA in the Agency believes that the mandate rule is sources retain the ability to raise these SNPR to support the Agency’s new inapplicable here. Similarly, the Agency facts to the court. In addition, the interpretation that affirmative defenses believes that the principles of res absence of an affirmative defense in SIP provisions are inconsistent with judicata, judicial estoppel and collateral provision in the SIP does not impede a the Act. The EPA disagrees with estoppel (issue preclusion) raised by violating source from taking appropriate commenters’ assertions. As explained commenters are all inapplicable in this actions to minimize emissions during a above, in the Luminant Generation v. situation. For reasons the EPA has fully malfunction, so as to mitigate the EPA decision the Fifth Circuit analyzed explained in this rulemaking, the potential remedies that a court may the EPA’s former interpretation of the Agency is adopting a revised impose as a result of the violation. CAA under step 2 of Chevron and found interpretation of the CAA. This Furthermore, the EPA disagrees with that the Agency’s position was necessarily changes the issues or claims the commenters’ premise that states reasonable. The Fifth Circuit held that that may be raised in any future have authority to create affirmative the CAA did not dictate the outcome litigation concerning the Agency’s defense provisions in SIPs because some put forth by environmental petitioners action here or subsequent Agency sources may otherwise be subject to in the Luminant Generation v. EPA case; actions taken pursuant to this changed enforcement actions for emissions the court did not hold that the Agency interpretation. As noted previously, the during malfunctions. As explained in could not reasonably interpret the CAA Agency’s ability to change its the SNPR in detail, the EPA has provisions at issue to come to the new interpretation of the statute is well concluded that there is no legal basis for position articulated in the SNPR and established, even if courts have affirmative defenses in SIP provisions, other sections of this document. In fact, previously upheld the Agency’s former including affirmative defenses the Fifth Circuit upheld the EPA’s interpretation as reasonable under step applicable to malfunction events. reading of the statute to preclude 2 of the Chevron analysis. Because such affirmative defense 8. Comments that affirmative defense affirmative defense provisions for provisions purport to alter or eliminate provisions are needed or appropriate planned events in the same decision as the statutory jurisdiction of courts to because sources cannot control a reasonable interpretation of the CAA. determine liability and to assess malfunctions or the excess emissions In the SNPR, the EPA also addressed appropriate remedies for violations of that occur during them. the discussion in the NRDC v. EPA SIP requirements, these provisions are decision that referred to the earlier Comment: Several commenters claimed that by requiring states to not permissible. Luminant Generation v. EPA decision 9. Comments that there will not be and explained its view that the court in remove affirmative defense provisions, the EPA will create a situation where any reduction in overall emissions from NRDC v. EPA did not suggest that its the EPA’s SIP call action because states interpretation of the CAA would not sources have no potential relief from liability for exceedances resulting from will need to revise emission limitations apply more broadly to SIP provisions. to allow more emissions if affirmative Rather, the court simply declined to excess emissions during malfunctions. The commenters argued that this will defense provisions are removed from address that issue. As to commenters’ the SIPs. allegation that the EPA should follow effectively expose sources to penalties Comment: Commenters on the SNPR the Luminant court’s reasoning because for emissions that are not within the questioned whether the elimination of that court addressed the specific issue of sources’ control. The commenters affirmative defenses in SIP provisions affirmative defenses in SIP provisions, alleged that the EPA’s proposal is would result in any reductions of the EPA has explained in detail in the unreasonable because it fails to consider emissions from sources. Several SNPR and section IV.D.1 of this the infeasibility of controlling emissions commenters asserted that affirmative document why it now believes that the during malfunction periods. The defense provisions allow states to lower NRDC court’s reasoning is applicable commenters believe that because emission limitations overall. Thus, the here and why it believes this is the malfunction events are uncontrollable commenters claimed that elimination of better interpretation of sections 113 and by definition, removing affirmative the affirmative defense provisions 304. defense provisions applicable to would obligate states to raise affected The EPA acknowledges that other malfunctions will not reduce emissions emission limitations so that sources circuit courts have also upheld but instead will only expose facilities to could comply with them continuously. affirmative defense provisions potential enforcement for uncontrollable Another commenter criticized the EPA’s promulgated by the Agency in FIPs.51 exceedances. Response: The EPA disagrees that approach as requiring each state to Those decisions were also based upon without affirmative defense provisions, reframe the existing episodic emissions an interpretation of the CAA that the sources will have no ‘‘relief’’ from provisions of its SIP as alternative Agency no longer holds. The EPA liability for violations during actual emission limitations rather than as more further notes that the affirmative malfunctions. To the extent that sources limited and conditional affirmative defense provisions at issue in the other have an actual malfunction, sources defenses. This commenter asserted that court decisions cited by the commenters retain the ability to raise this fact in the structuring the provisions as an are not at issue in this action. However, event of an enforcement action related affirmative defense allows a state to 51 See Montana Sulphur & Chemical Co. v. EPA, to the malfunction. Congress has already impose more stringent numerical 666 F.3d 1174 (9th Cir. 2012); Arizona Public provided courts with explicit limitations without penalizing sources Service Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009). jurisdiction and authority to determined for unavoidable emissions when those

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emissions do not compromise the or eliminate the statutory jurisdiction of different states. The commenters noted underlying air quality objectives. the courts. The EPA has reached this that the EPA recognized in the February Several commenters also disagreed conclusion in light of the court’s 2013 proposal and SNPR that states may with the EPA’s belief that removal of decision in NRDC v. EPA. Because elect to revise their deficient SIP affirmative defense provisions would affirmative defense provisions are provisions differently in response to the reduce emissions. One commenter inconsistent with the enforcement SIP call and thus the commenters noted that some affirmative defense structure of the CAA, the EPA is making expressed concern that the potential provisions require a source to evaluate the finding that such provisions are difference in treatment among states impacts on NAAQS compliance as part substantially inadequate to meet legal will lead to ‘‘inconsistent regulation of of asserting the affirmative defense; the requirements of the CAA. In order to air pollution across the country.’’ commenter contended that forgoing make the finding that these provisions Commenters further argued that these provisions would thus reduce the fail to meet legal requirements of the without the consistent regulatory incentive for owners and operators to CAA, the EPA is not required to framework provided by an affirmative minimize emissions during determine or estimate emission defense provision, each court is likely to malfunctions so that they could qualify reductions that will or will not result evaluate SSM events differently in the for the affirmative defense. Several from the removal of such provisions context of enforcement actions. The commenters noted that many sources from the affected SIPs. The EPA believes commenters suggested that allowing immediately investigate excess this action is necessary to provide each court to consider the facts and emissions events and implement environmental protection. However, the circumstances of the emission event in measures intended to prevent EPA’s obligation as a legal matter would its penalty evaluation without a recurrence. Nevertheless, those not change even if commenters were governing framework could lead to commenters asserted that because correct in their view that emissions inconsistent enforcement throughout malfunction events are uncontrollable reductions will not result from the the country. by definition, removing an affirmative removal of the impermissible Response: The EPA disagrees that it is defense applicable to malfunctions will affirmative defense provisions. The inappropriate to allow states to not reduce emissions. Commenters also EPA’s interpretation of its authority determine how best to revise their SIPs argued that an assumption that under section 110(k)(5) is discussed in in response to this SIP call, consistent elimination of the affirmative defense detail in section VIII.A of this with CAA requirements. As discussed provisions will reduce emissions is document. in this document, and as many flawed because, given the stringent The EPA agrees that in response to commenters have also noted, the applicability criteria for a ‘‘narrowly this SIP call directing the removal of structure of the CAA is based upon drawn’’ affirmative defense, a facility affirmative defense provisions, the cooperative federalism. Under this has no assurance that an affirmative affected states may elect to revise structure, Congress gave states broad defense will apply to any particular affected SIP emission limitation. In so discretion to develop SIP provisions as malfunction event and that even if the doing, the states may determine that it necessary to attain and maintain the affirmative defense was available, it is appropriate to revise the emission NAAQS and meet other CAA objectives, would not shield the facility from limitations in other respects, so long as so long as the SIPs also meet statutory compliance orders or other injunctive they do so consistent with CAA requirements. The very nature of the SIP relief (or from criminal prosecution). requirements. For example, affected program is that similar sources can be Response: The commenters’ states may elect to create alternative treated differently in different states, arguments concerning whether emission limitations that apply to because the states have discretion with elimination of affirmative defense sources during startup and shutdown. respect to developing their SIP provisions will or will not reduce The EPA’s guidance for this approach is provisions consistent with CAA emissions during SSM events and will discussed in detail in VII.B.2 of this requirements. Thus, whether the or will not reduce incentives for sources document. Alternatively, states may affirmative defense provisions at issue to minimize emissions during SSM elect to overhaul an affected SIP in this action added some level of events do not address the legal basis for emission limitation entirely to account ‘‘consistent’’ treatment of sources across any such affirmative defense provisions. for the removal of the affirmative the nation (a statement with which the As the commenters correctly observed, defense in some other way. However, EPA does not agree) is not relevant for the EPA’s 1999 SSM Guidance reflected states will need to comply with the purposes of this SIP call.52 Rather, for the Agency’s prior interpretation of the applicable substantive requirements for the reasons explained in the SNPR and CAA to permit such affirmative defense the type of SIP provision at issue and in this document, the EPA has provisions, so long as they were the EPA will review those SIP revisions determined that affirmative defense sufficiently narrowly drawn, applied in accordance with the requirements of provisions are inconsistent with the only to monetary penalties and required the CAA, including sections 110(k)(3), fundamental legal requirements of the the source to prove that it met the 110(l) and 193. CAA. For that reason, the EPA is applicable criteria to the trier of fact in 10. Comments that the elimination of an enforcement proceeding. The EPA’s affirmative defense provisions will requiring the affected states to revise arguments for why appropriate result in sources’ facing inconsistent their SIPs to remove the affirmative affirmative defense provisions could be treatment by courts or states when defense provisions identified in this consistent with CAA requirements excess emissions are emitted during action. States have discretion in how included that they could provide an malfunction events. 52 The EPA notes that the actual affirmative incentive for sources to be properly Comment: Commenters claimed that defense provisions at issue in this action are very designed, maintained and operated to the concept and framework for dissimilar; some are based on the EPA’s minimize emissions at all times. affirmative defense provisions are interpretation of the CAA in the 1999 SSM As explained in the SNPR, however, consistent from state to state and that by Guidance, but the majority of the provisions are relatively unique from state to state. Accordingly, the EPA has determined that affirmative removing these provisions, sources will the EPA disagrees with the commenters’ basic defenses are impermissible in SIP be subject to inconsistent treatment of premise that the affirmative defense provisions are provisions because they operate to alter excess emissions during SSM in consistent from state to state.

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they revise their SIPs in this context as proposal was intended to cover a broad noted that some states have experienced in all other contexts. range of issues related to the correct improved ambient air quality As to the concern that different courts treatment of emissions during SSM conditions, despite having SIPs in place might evaluate liability for violations events in SIP provisions with affirmative defense provisions at during SSM events differently in the comprehensively. Because of an issue in this action. absence of affirmative defense intervening court decision that affected The commenters alleged that without provisions, the EPA notes that this is the substance of the EPA’s initial providing specific record-based not the relevant question. The potential proposed action, it was necessary to evidence of the impacts caused by for inconsistent treatment by the courts issue a supplemental proposal. The EPA affirmative defense provisions, it is is not a basis for allowing states to retain disagrees that the issuance of the SNPR unreasonable for the EPA to determine SIP provisions that are inconsistent with adversely affected the ability of that existing provisions are substantially the legal requirements of the CAA. In interested parties to understand the inadequate or otherwise not in any event, the EPA disagrees that Agency’s proposed action, because the compliance with the CAA. Some elimination of affirmative defenses in SNPR only affected one aspect of the commenters further alleged that the EPA SIP provisions make it more likely that original proposed action. As the EPA has no authority to issue a SIP call there would be ‘‘inconsistent explained in the SNPR: ‘‘In this SNPR, without ‘‘find[ing] that the applicable enforcement’’ because of a lack of a we are supplementing and revising what implementation plan . . . is ‘‘regulatory framework.’’ The we earlier proposed as a response to the substantially inadequate to attain or enforcement structure of the CAA Petitioner’s requests but only to the maintain the relevant [NAAQS].’’ embodied in section 113 and section extent the requests narrowly concern Response: As explained in the 304 already provides a structure for affirmative defense provisions in the February 2013 proposal, the SNPR and enforcement of CAA requirements in SIPs. We are not revising or seeking this document, the EPA does not federal courts. For example, the CAA further comment on any other aspects of interpret its authority under section already provides uniform criteria for the February 2013 proposed action.’’ 53 110(k)(5) to require proof that a courts to apply, based upon the facts As to the commenters’ concern that deficient SIP provision caused a specific and circumstances of individual the EPA should take action in a single violation of the NAAQS at a particular enforcement actions. Similar to an comprehensive rulemaking, the Agency monitor on a particular date, or that a affirmative defense provision, section is doing so. This SIP call action deficient SIP provision undermined a 113(e) already enumerates the factors addresses all aspects of the Petition and specific enforcement action. Section that courts are required to consider in it is based upon both the February 2013 110(k)(5) explicitly authorizes the EPA determining appropriate penalties for proposal and the SNPR. As advocated to make a finding that a SIP provision violations and thus there is a consistent by the commenters, the EPA’s objective is substantially inadequate to ‘‘comply statutory framework. In essence the in this SIP call action is to provide with any requirement of’’ the CAA, in commenters object to the fact that in any states with comprehensive and up-to- addition to the authority to do so where judicial enforcement case, the court will date guidance concerning the correct a SIP is inadequate to attain and determine liability and remedies based treatment of emissions during SSM maintain the NAAQS or to address on the facts and circumstances of the events in SIP provisions, consistent interstate transport. In light of the case. However, this is an inherent with CAA requirements as interpreted court’s decision in NRDC v. EPA, the feature of the enforcement structure of by recent court decisions. The EPA EPA has reexamined the question of the CAA, regardless of whether there is agrees with the commenters that whether affirmative defenses are an affirmative defense provision at providing states comprehensive consistent with CAA requirements for issue. guidance in this rulemaking is SIP provisions. As explained in this 11. Comments that the EPA should important to assist states in revising action, the EPA has concluded that such have acted in a single, comprehensive their SIP provisions consistent with provisions are inconsistent with the rulemaking rather than issuing the CAA requirements. Any necessary requirements of section 113 and section supplemental notice of proposed changes to permits to reflect the removal 304. Accordingly, the EPA has the rulemaking. of affirmative defense provisions from authority to issue SIP calls to states, Comment: Commenters asserted that the underlying SIP will occur later, after requiring that they revise their SIPs to the EPA’s issuance of two separate the SIP provisions have been revised. eliminate the specific affirmative proposals instead of one proposal has 12. Comments that the EPA has not defense provisions identified in this prevented states and industry from proven that the existence of affirmative action. Issues related to the EPA’s knowing the entire proposed regulatory defense provisions in SIPs is resulting authority under section 110(k)(5) are action. The commenters claimed that if in specific environmental impacts or discussed in more detail in section the EPA is going to issue a SIP call to interference with attainment and VIII.A of this document. states concerning the treatment of maintenance of the NAAQS. 13. Comments that the EPA is emissions during SSM events, then it Comment: Several commenters argued violating the principles of cooperative should do so in a single comprehensive that the EPA has failed to demonstrate federalism through this action. rulemaking. The commenters argued that the affirmative defense provisions Comment: Several commenters stated this is necessary because states consider at issue in this action have contributed that the EPA’s action with respect to different options when revising SIP to a specific NAAQS violation or affirmative defenses in SIP provisions is provisions and that thereafter states will otherwise caused harm to public health inconsistent with the system of have to work with affected sources to or the environment. The commenters cooperative federalism contemplated by revise permits. contend that, because of the narrow the CAA. The commenters alleged that Response: The EPA disagrees with the scope of affirmative defense provisions, this action is at odds with established argument that states, industry, it is unlikely that their existence would CAA and judicial precedents indicating individuals and other interested parties cause or contribute to any violations of that states have broad discretion in have not had an opportunity to know the NAAQS. Some commenters further developing SIP provisions, with the and comment upon the Agency’s entire EPA’s role being limited. Some action. The EPA’s February 2013 53 79 FR 55919 at 55923. commenters further alleged that the

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EPA’s action has the effect of unlawfully SIPs have been incorporated into discussed these issues in the both the directing states to impose a particular thousands of title V operating permits February 2013 proposal and in the control measure. The commenters and that those title V permits would, in SNPR. A summary of comments argued that the EPA must defer to a turn, need to be modified if the concerning revisions to operating state’s choices on how to meet the affirmative defense provisions are permits to reflect the revised SIP relevant NAAQS, through whatever SIP removed from the approved SIPs. provisions appears, with the EPA’s provisions the state elects to develop. Commenters indicated that states might response to comments, in section One commenter argued that states have also need to amend an even larger VIII.D.28 of this document. independent authority to include number of minor source permits. Despite the potential burden on states, affirmative defense policies in their Commenters also indicated that in as the EPA explained in the February SIPs, even if the DC Circuit has held conjunction with removal of affirmative 2013 proposal and the SNPR, the that the EPA may not include defenses, states will also have to Agency believes that it is obligated and affirmative defense provisions in federal reevaluate the emission limitations authorized to issue this SIP call action regulations. currently contained in their SIPs to to affected states to require the removal Response: The EPA agrees that the determine if those limitations are still of affirmative defense provisions. The CAA is based upon the principle of are consistent with federal and state law EPA is not in this action evaluating or cooperative federalism but disagrees (e.g., represent reasonably available determining whether SIP emission with the commenters’ characterization control technology). Some commenters limitations should or should not be of the respective authorities and expressed the view that the EPA must revised in light of the removal of responsibilities of states and the indicate that states will not be required affirmative defenses and is not required Agency. As explained in the February to remove the identified affirmative to do so. The states have discretion to 2013 proposal, and in section V.D.2 of defense provisions from their SIPs until determine how best to revise the this document, the EPA has the the state has had time to consider deficient SIP provisions identified in authority and the obligation to ensure whether emission limitations in state this action, so long as they do so that SIP provisions meet fundamental regulations and in construction and consistent with the CAA requirements. CAA requirements, when initially operating permits need to be modified Further, the EPA does not agree that submitted and later. In the case of and to obtain any necessary EPA enforcement discretion cannot affirmative defenses in SIP provisions, approval for the modified requirements. substitute for an affirmative defense for the EPA has determined that such Commenters also argued that the EPA’s malfunctions. For example, the EPA has provisions do not comply with CAA suggestion that states subject to a SIP taken the position that the CAA does requirements because they operate to call could simply remove an existing not require malfunction emissions to be alter or eliminate the statutory affirmative defense provision and rely factored into development of section jurisdiction of the courts, contrary to on enforcement discretion to address 112 or section 111 standards and that section 113 and section 304. The states ‘‘unavoidable’’ exceedances is wrong case-by-case enforcement discretion have broad discretion in how to create and that states adopt emission provides sufficient flexibility.54 SIP provisions but must do so consistent limitations under state administrative Moreover, the EPA believes that with CAA requirements. By issuing this rules that require the agency to provide Congress has already provided for such SIP call, the EPA is not in any way a record to support the level of the flexibility in section 113, by providing compelling states to impose any specific emission limitation. the courts with jurisdiction to determine SIP control measure on any specific Response: The EPA has acknowledged liability and to impose remedies. For source but merely requiring states to that correction of the deficient SIP example, in section 113(e), Congress revise their SIP provisions to make them provisions at issue in this action will provided specific criteria for courts to consistent with CAA requirements. take time and resources. For this reason, consider in imposing monetary 14. Comments that the EPA failed to the EPA is providing states with the penalties, including consideration of account adequately for the amount of maximum time (18 months) permitted such factors as justice may require. time and resources that will be required by section 110(k)(5) to respond to this With respect to the potential need to to revise state SIPs. SIP call. In addition, the EPA is amend permits, as explained in the Comment: Many commenters asserted endeavoring to provide states with clear February 2013 proposal, ‘‘the EPA does that the SNPR did not recognize that and comprehensive guidance not intend its action on the Petition to removal of affirmative defense concerning the proper treatment of affect existing permit terms or provisions from SIPs will impose excess emissions during SSM events in conditions regarding excess emissions enormous burdens on states because SIP provisions in order to make this during SSM events that reflect they will need to revise SIPs to create process more efficient. previously approved SIP provisions. alternative emission limitations in lieu The EPA acknowledges that some . . . [A]ny needed revisions to existing of the affirmative defenses. Commenters states, in conjunction with removal of permits will be accomplished in the contended that removal of the affirmative defense provisions, may ordinary course as the state issues new affirmative defense provisions will elect to undertake a more permits or reviews and revises existing necessarily require state air agencies to comprehensive revision of affected SIP permits. The EPA does not intend the make extensive revisions to SIPs and emission limitations. In so doing, the issuance of a SIP call to have automatic that in many states, such changes will states may need to undertake a more impacts on the terms of any existing have to be reviewed by the state resource intensive approach than those permit.’’ 55 Thus, these permit revisions legislature. Commenters explained that states that merely elect to eliminate the that commenters expressed concern such an effort could not reasonably be affirmative defense provisions. In about need not occur during the 18- completed in many states within the 18 addition, the EPA also recognizes that months the EPA proposed to provide for states may eventually need to revise 54 See, e.g., ‘‘Oil and Natural Gas Sector: SIP revisions in response to the final SIP permits to reflect the elimination of Reconsideration of Additional Provisions of New Source Performance Standards; Proposed rule,’’ 79 call. Commenters also stated that the affirmative defense provisions from FR 41752 at 41762–63 (July 17, 2014). SSM provisions that the EPA proposed underlying SIP provisions that may 55 See February 2013 proposal, 78 FR 12459 at to require states to remove from their have been reflected in permits. The EPA 12482 (February 22, 2013).

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month SIP development timeframe but SSM events.56 In light of those of environmental impacts in the event of may proceed thereafter according to decisions, as explained in detail in the violations. Thus, the commenter normal permit revision requirements. February 2013 proposal, the SNPR and supported the EPA’s prior interpretation Finally, the EPA notes, the burdens this document, the EPA has concluded of the CAA to allow affirmative defense associated with SIP revisions and that certain aspects of its prior provisions, so long as courts can still permit revisions are burdens imposed interpretation of the CAA, as set forth in award injunctive relief for violations. by the CAA. The states have both the the SSM Policy, were not the best The commenter did not articulate how authority and the responsibility under interpretation of the CAA. As a result, this prior statutory interpretation is the CAA to have SIPs and permit certain SIP provisions that the EPA consistent with the reasoning of the programs that meet CAA requirements. previously approved are also not court in NRDC v. EPA concerning the It is inherent in the structure of the CAA consistent with the requirements of the same statutory provisions. that states thus have the burden to CAA. In particular, this includes the By contrast, an environmental group revise their SIPs and permits when that EPA’s prior interpretation of the CAA to commenter cited a citizen suit is necessary, whether because of allow affirmative defense provisions in enforcement case in Texas in which the changes in the CAA, changes in judicial SIPs in the 1999 SSM Guidance. commenter claimed that the affirmative interpretations of the CAA, changes in The EPA has also acknowledged that defense provision in that state’s SIP the NAAQS, or a host of other potential it has in the past taken a similar operated as a de facto shield against any events that necessitate such revisions. approach regarding affirmative defense enforcement. The commenter stated that Among those is the obligation to provisions in federal regulations the EPA’s approval of the affirmative respond to a SIP call that identifies legal addressing hazardous air pollution and defense was premised upon its only deficiencies in specific provisions in a in new source performance standards. applying to civil penalties and not to state’s SIP. Indeed, the EPA’s inclusion of an injunctive relief and that the Agency’s 15. Comments that the EPA is being affirmative defense provision in a approval of the SIP provision was inconsistent because rules promulgated federal regulation resulted in the court explicitly upheld on this basis by the by the EPA provide affirmative defense decision in NRDC v. EPA, in which the Fifth Circuit. Nevertheless, the provisions for malfunction events. court rejected the Agency’s commenter asserted, the state agency Comment: A number of commenters interpretation of the CAA to allow has implemented this provision such claimed that the EPA cannot interpret affirmative defenses that limit or that if the affirmative defense criteria the CAA to prohibit affirmative defenses eliminate the jurisdiction of the courts. are met, there is ‘‘no violation’’ and thus in SIP provisions because the Agency Just as the EPA is calling on states to no potential for injunctive relief. itself has issued regulations that include revise their SIPs to remove affirmative Response: The EPA agrees that some affirmative defenses for excess defense provisions, the Agency is also of the affirmative defense provisions at emissions during malfunction events. taking action to correct such provisions issue in this action are expressly limited The commenters claim that the EPA is in federal regulations.57 The continued to monetary penalties and not to being inconsistent on this point and existence of such provisions in the EPA injunctive relief. This approach was thus cannot require states to remove regulations that have not yet been consistent with the EPA’s prior affirmative defenses from SIPs. corrected does not mean that such interpretation of the CAA concerning Other commenters alleged that the provisions are authorized either in state affirmative defense provisions in SIPs EPA is being inconsistent because it has or federal regulations. but also consistent with the arguments not adequately explained the reversal of As to the claim that the EPA has not that the D.C. Circuit rejected in the its ‘‘decades-old’’ policy interpreting the adequately explained the basis for NRDC v. EPA decision. Thus, the fact CAA to allow affirmative defenses in changing its interpretation of the CAA that some of the affirmative defense SIP provision. The commenters cited to regarding affirmative defenses in SIP provisions addressed in this action SIP provisions that the EPA previously provisions, the Agency disagrees. The preserve the possibility for injunctive approved in eight states between 2001 SNPR set forth in detail the basis for the relief, even if the court could award no and 2010 that they believed would be EPA’s revised interpretation of the CAA, monetary penalties, is no longer a affected by this SIP call. The in light of the court’s decision in NRDC deciding factor. commenters claimed that these prior v. EPA.58 The commenters failed to The EPA also agrees that some actions were consistent with the EPA’s specify why this explanation was agencies or courts may not apply the SSM policy memoranda. Additionally, ‘‘inadequate.’’ affirmative defense provisions in the the commenters cited to federal 16. Comments that existing manner intended at the time the EPA regulations that the EPA has previously affirmative defense provisions do not approved them into the SIP. Incorrect promulgated that include affirmative preclude parties from filing enforcement application of SIP affirmative defense defense provisions. The commenters actions or hinder parties from seeking provisions by sources, regulators or claimed that these prior actions are injunctive relief for violations of SIP courts is a matter of concern. However, ‘‘inconsistent with EPA’s proposed requirements. even perfect implementation of a SIP disallowance of affirmative defenses.’’ Comment: One state commenter affirmative defense provision does not Response: The EPA has acknowledged asserted that the existing affirmative cure the underlying and now evident that it has previously approved some defense provisions in the state’s SIP do absence of a legal basis for such SIP provisions with affirmative defenses not prevent the state or the EPA from provisions. Again, the fact that a given that were consistent with its pursuing injunctive relief or mitigation affirmative defense provision is being interpretation of the CAA in the 1999 implemented correctly or incorrectly is SSM Guidance at the time it acted on 56 See Sierra Club v. Johnson, 551 F.3d 1019 (D.C. no longer a deciding factor for purposes those SIP submissions. However, since Cir. 2008), in the rulemaking docket at EPA–HQ– of this SIP call action. that time, two decisions from the D.C. OAR–2012–0322–0048; see also NRDC v. EPA, 749 These issues are not pertinent to the F.3d 1055 (D.C. Cir. 2014), in the rulemaking docket Circuit have addressed fundamental at EPA–HQ–OAR–2012–0322–0885. EPA’s decision in this action to require interpretations of the CAA related to the 57 See, e.g., 79 FR 60897 (October 8, 2014); 79 FR states to remove the affirmative defense legally permissible approaches for 72914 (December 8, 2014). provisions from the previously addressing excess emissions during 58 79 FR 55919 at 55929–30. approved SIPs. Rather, as explained in

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detail in the SNPR and this final action, support of an argument that states are affirmative defenses for planned events the EPA is requiring the affected states not required to attach a penalty or any on the same basis that it was a to remove these SIP provisions because certain amount of penalty to a violation reasonable interpretation of the CAA. they are inconsistent with CAA of a SIP emission limitation. The However, the EPA has reevaluated this requirements. As explained in the commenters noted that in the brief, the interpretation of the CAA requirements SNPR, the EPA has concluded that such EPA stated that under section 110 of the in light of the more recent NRDC v. EPA affirmative defenses in SIP provisions CAA, states are authorized ‘‘to decision, and the Agency now believes are inconsistent with section 113 and determine what constitutes a violation, that its prior interpretation of the CAA section 304, in light of the reasoning of and to distinguish both quantitatively with respect to the approvability of the court in NRDC v. EPA. and qualitatively between different affirmative defense provisions in SIPs is 17. Comments that the EPA is types of violations.’’ Further, the no longer the best reading of the statute. changing its policy on affirmative commenter noted, the EPA argued in the Thus, the Agency’s view now is that a defenses, and this change is arbitrary brief that because the violation is ‘‘violation’’ cannot be defined in a and capricious and thus an defined by the state, an affirmative manner that interferes with the court’s impermissible basis for a SIP call. defense does not impinge on the court’s role in assessing remedies. It is Comment: Several commenters stated jurisdiction. The commenters contended irrelevant that the EPA had argued for that the EPA’s action with respect to that nothing has changed since the brief a different interpretation in the past as affirmative defense provisions marks a was filed to justify a change in the Agency now believes that the court’s change in the EPA’s approach to these interpretation of the CAA and that the analysis in NRDC v. EPA is the better provisions. The commenters alleged that EPA failed to explain why its prior reading of the provisions of the statute this SIP call action is not mandated by interpretation is no longer correct. concerning affirmative defenses. The judicial precedent, and therefore the Other commenters claimed that the EPA has authority to revise its prior SNPR simply reflected a ‘‘policy EPA takes the position that affirmative interpretation of the CAA when further change’’ by the EPA. The commenters defenses in SIP provisions conflict with consideration indicates to the Agency argued that, while the EPA is permitted the court’s jurisdiction over that its prior interpretation of the statute to change its policy or interpretation of enforcement actions and stated that this is incorrect. The EPA fully explained the law, this specific change is arbitrary position is flawed because enforcement the basis for this change in its and capricious and forces unreasonably is limited to violations as defined in the interpretation of the CAA in the SNPR. difficult and burdensome requirements context of the SIP. The commenters The EPA agrees that in some cases, on states and sources. The commenters asserted that section 304 does not apply affirmative defense provisions at issue asserted that the EPA failed to explain when there is no SIP requirement being in this SIP call action are structured as adequately this change in policy or to violated and that the state has the a complete defense to any liability, not document reasons for the change in the authority to define what constitutes merely a defense to monetary penalties. administrative record. Some such a violation. Similarly, commenters The EPA has also determined that commenters further alleged that the EPA argued that an affirmative defense affirmative defense provisions of this does not have authority to impose its provision may provide that emissions type are substantially inadequate to policy preferences on states. will not be ‘‘violations’’ if criteria are meet CAA requirements. Although such Response: The EPA disagrees that the met and that it therefore does not affirmative defenses may not present the basis for this SIP call action is a change interfere with a court’s ability to same concerns as affirmative defenses of ‘‘policy’’ as alleged by the determine appropriate penalty amounts applicable only to penalties, such commenters. The EPA’s guidance to under section 113. The commenters affirmative defenses may create a states concerning the proper treatment contended that, because the state has different concern because they in effect of excess emissions during SSM events the authority to define what constitutes provide a conditional exemption from in SIP provisions is provided in the a violation, SIP provisions that include otherwise applicable emission SSM Policy, but this guidance reflects an affirmative defense do not infringe limitations. If there is no ‘‘violation’’ the Agency’s interpretation of statutory on a court’s authority to penalize a when the criteria of such an ‘‘affirmative requirements. As explained in detail in source because the CAA does not defense’’ are met and no legitimate the SNPR and in this document, the provide a court with jurisdiction to alternative emission limitation applies EPA is changing its interpretation of the impose remedies in the absence of during that event, then such an CAA with respect to affirmative liability. affirmative defense in effect operates to defenses in SIP provisions based on the Response: The EPA explained in create a conditional exemption from logic of the court in NRDC v. EPA. detail the rationale for its change in applicable emission limitations. This Further, as acknowledged by interpretation of the CAA regarding form of ‘‘affirmative defense’’ provision commenters, the EPA is permitted to affirmative defenses in the SNPR. The therefore runs afoul of different CAA change its interpretation of the statute EPA acknowledges that in the Luminant requirements for SIP provisions. Under provided that it clearly explains the Generation v. EPA case, the Agency section 302(k) of the CAA, emissions basis for the change. The EPA clearly argued that states are authorized to standards or limitations must be explained the basis for the changed determine what constitutes a violation continuous and cannot include SSM interpretation in the SNPR based on its and to distinguish between different exemptions, automatic or otherwise. analysis of the legal rationale respecting types of violations. As the EPA Regardless of whether the commenters sections 113 and 304 in the NRDC v. explained in the SNPR, the court in believe that this form of ‘‘affirmative EPA decision. Luminant Generation v. EPA held that defense’’ should be allowed, the EPA 18. Comments that emissions during the Agency’s interpretation of the CAA believes that provisions of this form are malfunction periods are not ‘‘excess’’ or to permit affirmative defenses inconsistent with the decision of the ‘‘violations’’ but rather are part of the applicable to malfunctions at that time court in Sierra Club v. Johnson.59 In that established SIP emission limitations. was a ‘‘permissible interpretation of case, the court held that emission Comment: Commenters cited the section [113], warranting deference.’’ limitations under the CAA must impose EPA’s brief filed in the Fifth Circuit The same court also upheld the EPA’s Luminant Generation v. EPA case in interpretation of the CAA to preclude 59 551 F.3d 1019 (D.C. Cir. 2008).

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continuous controls and cannot include not be ‘‘emissions standards.’’ 60 Thus, those affirmative defense provisions that exemptions for emissions during SSM according to the commenter, the NRDC commenters claim are merely a means events. The EPA concludes that making v. EPA decision does not apply to SIP to define what constitutes a ‘‘violation’’ the exemptions from emission rules. of an applicable SIP emission limitation. limitations conditional does not alter Response: The commenters alleged As previously explained, the EPA the fact that once exercised they are that the EPA’s interpretation of the CAA believes that an ‘‘affirmative defense’’ illegal exemptions. section 302(k) definition of ‘‘emission structured in such a fashion is deficient 19. Comments that the definition of limitation’’ in this action was because it in effect creates a conditional ‘‘emission limitation’’ in CAA section inappropriate and that section 302(k) exemption from the SIP emission 302(k) does not support this SIP call does not support this SIP call action. limitations. By creating such action. The EPA notes that it is not the exemptions, conditional or otherwise, Agency’s position that all emission an affirmative defense of this type Comment: Several commenters noted limitations in SIP provisions must be set would render the emission limitations that while the EPA depends on the at the same numerical level for all less than continuous. definition of ‘‘emission limitation’’ in modes of source operation or even that The EPA disagrees with commenters’ the CAA section 302(k) for this action, they must be expressed numerically at remaining points because the EPA’s that CAA provision does not support all. To the contrary, the EPA intended position on what appropriately qualifies this SIP call action, including that the in the February 2013 proposal and the as an emission limitation is consistent CAA does not require that SIPs contain SNPR to indicate that states may elect with the CAA, relevant legislative continuous emissions standards in the to create emission limitations that history and case law. These issues are form asserted by the EPA. The include alternative emission limitations, addressed in more detail in sections commenters alleged that the definition including specific technological VII.A.3.i through 3.j of this document. in the CAA and supporting materials controls or work practices, that apply 20. Comments that the EPA has failed interpreting that definition do not during certain modes of source to show that state SIPs are substantially support the EPA’s requiring one operation such as startup and inadequate, as is required to promulgate emission limitation to apply in all shutdown. However, this comment is a SIP call. circumstances at all times. Some not relevant to the issue of affirmative Comment: Several commenters noted commenters further alleged that states defense provisions in SIPs. It is not for that before the EPA can issue a SIP call subject to the EPA’s SIP call action have the reason that affirmative defense under section 110(k)(5) with respect to implementation plans that provide provisions do not meet the definition of affirmative defense provisions, the EPA emission limitations that apply an ‘‘emission limitation’’ in section must determine that a SIP provision is continuously through a combination of 302(k) that the EPA is promulgating this ‘‘substantially inadequate to attain or numerical emission limitations, the SIP call action for affirmative defense maintain the relevant [NAAQS], to general duty to minimize emissions and provisions. The EPA has concluded that mitigate adequately the interstate the affirmative defense criteria for affirmative defense provisions are pollutant transport described in section excess emissions during malfunctions. substantially inadequate to meet CAA 7506a of this title or section 7511c of Several commenters questioned why, requirements concerning enforcement, this title, or to otherwise comply with even if the challenged affirmative in particular the requirements of section any requirement of this chapter.’’ The defense provisions do not qualify as 113 and section 304. commenters further stated that Congress ‘‘emission limitations’’ or ‘‘emissions As to commenters’ argument that employed a high bar in the language of standards’’ under the first part of the affirmative defense provisions can be CAA section 110(k)(5) in requiring the definition, they are not approvable as appropriately considered to be ‘‘design, EPA to find ‘‘substantial’’ inadequacies, ‘‘design, equipment, work practice or equipment, work practice or operational as opposed to other CAA provisions that operational standards’’ promulgated standards’’ under CAA section 302(k), permit the Agency to act based on under the second part of the definition. the critical aspect of an emission ‘‘discretion’’ or when it ‘‘may be Some commenters argued that, to the limitation in general is that it be a appropriate.’’ The commenters alleged extent that affirmative defense ‘‘requirement . . . which limits the that the EPA has not demonstrated a provisions in SIPs do not satisfy the quantity, rate, or concentration of ‘‘substantial inadequacy’’ with respect definition of ‘‘emission limitation,’’ they emissions of air pollutants on a to the affirmative defense provisions at would still be approvable elements of a continuous basis . . . .’’ These issue in the SNPR, as required to issue SIP as ‘‘other control measures, means, provisions operate to excuse sources a SIP call. Some commenters also argued that or techniques’’ allowed under CAA from liability for emissions under the EPA has failed in its SNPR to define section 110(a)(2). Further, some certain conditions, not to limit the or interpret ‘‘substantially inadequate’’ commenters believe that the legislative emissions in question. The affirmative or provide any standards for assessing history cited in the SNPR does not defense provisions at issue in this final the adequacy of a SIP with respect to support the EPA’s position but rather is action do not themselves, or in affirmative defense provisions. The only intended to preclude the use of combination with other components of commenters also alleged that, if the EPA dispersion techniques, such as the emission limitation, limit the is required to rely on data and evidence intermittent controls. quantity, rate or concentration of air pollutants on a continuous basis. These in evaluating SIP revisions, it follows One commenter stated that the affirmative defense provisions, that the EPA should produce at least the Portland Cement NESHAP, at issue in therefore, do not themselves meet the same level of data and evidence, if not the NRDC v. EPA decision, was statutory definition of an emission more, to support a SIP call that is based classified by statute as an ‘‘emissions limitation under section 302(k). on the more stringent substantial standard,’’ a term defined by the CAA The EPA notes that the definition of inadequacy standard of section and defined as applying ‘‘on a ‘‘emission limitation’’ in section 302(k) 110(k)(5). continuous basis.’’ The commenter is relevant, however, with respect to Response: The EPA disagrees with the stated that SIP provisions involve more commenters’ arguments that the Agency than ‘‘emissions standards’’ and need 60 See CAA section 110(a)(2)(A). has failed to establish that the

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affirmative defense provisions identified impact on each individual state’s SIP. EPA rulemaking concerning the in the SNPR are ‘‘substantially One commenter also claimed that the affirmative defense provisions occurred inadequate’’ as required by section EPA has failed to provide authority or in the Fifth Circuit, it necessarily 110(k)(5). As explained in the SNPR and a legal basis to support its determination follows that any other rulemaking this action, the EPA has determined that that this rulemaking is of ‘‘nationwide related to such provisions can only affirmative defense provisions at issue scope or effect.’’ Such failure, according occur in the Fifth Circuit. The EPA in this action are substantially to the commenter, violated the believes that this interpretation of its inadequate because they are requirements of section 307(d)(3) and authority under section 307(b)(1) is inconsistent with applicable legal did not allow for full and meaningful simply incorrect. Under section requirements of the CAA. The comment on this issue. 307(b)(1), the EPA is explicitly commenters raised similar arguments One commenter alleged that the EPA authorized to make a determination that with respect to the EPA’s authority to has waived its challenge to venue for a specific rulemaking action is of issue a SIP call to address other forms those circuits that have already weighed ‘‘nationwide scope and effect.’’ The of deficient SIP provisions, such as in regarding individual state SIP statute does not specify the automatic or discretionary exemptions provisions at issue in this action, considerations that the EPA is to take from emission limitations. The EPA including Texas’s affirmative defense into account when making such a responds to these broader arguments in provisions. Another commenter claimed determination, let alone provide that the sections VIII.D.46 through D.48 of this that the discussion over appropriate Agency cannot invoke this because document. venue in the February 2013 proposal some aspect of the rulemaking at issue 21. Comments that this action is not and SNPR presupposes that the EPA’s might previously have been addressed national in scope, and therefore the D.C. issuance of a revised SSM Policy is a in one or more other circuit courts. To Circuit is not the sole venue for review ‘‘final agency action’’ subject to judicial the contrary, the EPA believes that of this action. review under section 307(b)(1) but section 307(b)(1) explicitly provides Comment: Several commenters argued that the EPA has failed to authority for the Agency to determine claimed that the EPA is incorrect in determine that its issuance of the SSM that a given rulemaking should be stating that this SIP call action is a Policy, in and of itself, constitutes ‘‘final reviewed in the D.C. Circuit in single nationally applicable action and agency action.’’ situations such as those presented in of nationwide scope or effect. The Response: The EPA disagrees with the this action that affects important commenters alleged that review of all commenters’ theories concerning the questions of statutory interpretation that affected SIP provisions in a single action scope of the Agency’s action. These affect states nationwide. in the D.C. Circuit would comments on the SNPR questioning the inappropriately limit the scope of EPA’s determination of ‘‘nationwide The EPA likewise disagrees with the review by obscuring distinctions scope and effect’’ for this action largely argument that its action is not a final between the various states’ regulatory repeat similar comments on the agency action. Within this action, the programs and practical concerns. The February 2013 proposal. As with those EPA is taking final agency action to commenters asserted that none of the prior comments, commenters on the respond to the Petition, updating its various state SIP provisions addressed SNPR made the basic argument that this interpretations of the CAA in the SSM in the SNPR were the same, and the action is not of nationwide scope and Policy and applying its interpretations EPA analyzed each separately and effect because the EPA is reviewing of the CAA in the SSM Policy to specific provided case-by-case justification for individual SIP provisions and directing SIP provisions in the SIPs of many its proposed action as to each. Further, states to correct their respective states. The EPA is conducting this the commenters argued that although deficient SIP provisions. The EPA action through notice-and-comment the EPA has packaged the SIP calls in disagrees with commenters because, as rulemaking to assure full consideration one Federal Register document, any explained in more detail in its response of the issues. As stated elsewhere in this final action that the EPA takes with in section V.D.6 of this document, this document, the revised SSM Policy is a respect to a single state’s affirmative rulemaking action applies the same nonbinding policy statement that does defense provision is only locally ‘‘process and standard’’ to numerous not, in and of itself, constitute ‘‘final’’ applicable and therefore should be areas across the country. While it is action. However, the EPA is taking reviewed in the individual circuits with correct that the SIP submissions that ‘‘final’’ action by responding to the jurisdiction over the affected state. One states make in response to this SIP call Petition and issuing the resulting SIP commenter further contended that, will be reviewed separately by the EPA call action. To the extent that while the EPA’s revised SSM Policy and subsequently subject to potential interpretations expressed in the revised may be of interest to states to which the judicial review in various circuits, the SSM Policy are also relied on to support SIP call does not directly apply, that EPA’s legal interpretation of the CAA this ‘‘final’’ action, then the EPA’s does not make the action ‘‘nationally concerning permissible SIP provisions interpretations of the CAA requirements applicable.’’ to address emissions during SSM events for SIP provisions applicable to The commenters acknowledged that in this action is nationally applicable to emissions during SSM events are part of the EPA cited Texas v. EPA in support all states subject to the SIP call. The the final agency action and are subject of its assertion, but the commenters EPA provided a full explanation of its to judicial review. To the extent the allege that the Fifth Circuit in that case basis for this determination of commenters are otherwise arguing that never reached the issue of nationwide nationwide scope and effect in the the issuance of the updated SSM Policy scope and effect.61 The commenters February 2013 proposal and the SNPR. in and of itself is not final agency action claimed that this SIP call action is The EPA also disagrees with the subject to judicial review under the distinct from the rule at issue in Texas argument that the Agency has waived CAA, the EPA agrees with this assertion. v. EPA because this final action turns on venue regarding challenges to this SIP The EPA notes that the commenters are the particulars of the SIP call action’s call action concerning the affirmative at liberty to adopt this position and defense provisions in the Texas SIP. waive their opportunity to challenge the 61 See No. 10–60961, 2011 WL 710598 (5th Cir. Evidently, the commenter believes that SSM Policy because they do not Feb. 24, 2011). because a prior challenge to another consider it final agency action.

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22. Comments that the EPA should addressing here the comments developed in the context of establishing clarify that SIPs can include work requesting that EPA ‘‘redefine’’ the an enforceable alternative emission practice standards or general-duty definition of malfunction. limitation under the Act. The EPA clauses to apply during malfunction Regarding the more general concern of would need to consider this approach in periods in place of affirmative defense the commenters, that states be allowed the context of a specific SIP regulation provisions. to establish an alternative emission for a specific type of source and Comment: Several commenters stated limitation in the form of a work practice emission control system. that the EPA should announce in this standard that applies during Finally, the EPA notes that any final action that in lieu of affirmative malfunctions, the EPA notes two points. emission limitation, including an defenses, states may elect to revise their First, the CAA does not preclude that alternative emission limitation, that SIP provisions to include work practice emissions during malfunctions could be applies during a malfunction must meet standards or general-duty clauses that addressed by an alternative emission the applicable stringency requirements are modeled on existing affirmative limitation. The EPA’s general position for that type of SIP provision (e.g., defense provisions and that would in the context of standards under would need to meet RACT for sources apply during malfunctions. Most of sections 111, 112 and 129 is that: (i) The subject to the RACT requirement) and these commenters advocated that the applicable emission limitation applies must be legally and practically EPA’s previously recommended criteria at all times including during enforceable. Thus, the SIP provision for an ‘‘affirmative defense’’ for malfunctions; (ii) the CAA does not would need to: (i) Clearly define when malfunctions should simply be changed require the EPA to take into account the alternative emission limitation into criteria for a ‘‘work practice’’ emissions that occur during periods of applied and the otherwise applicable provision instead. One commenter made malfunction when setting such emission limitation did not; (ii) clearly the same suggestion but also advocated standards; and (iii) accounting for spell out the requirements of that that the EPA eliminate six of the nine malfunctions would be difficult, if not standard; and (iii) include adequate criteria and rephrase the remaining impossible, given the myriad types of monitoring, recordkeeping and criteria, in order to ‘‘improve the malfunctions that can occur across all reporting requirements in order to make standards, reduce uncertainty, and sources in a source category and given it enforceable. In addition, the state reduce wasteful litigation.’’ This the difficulties associated with would need to account for emissions commenter advocated that the EPA also predicting or accounting for the attributable to these foreseen events in redefine the term ‘‘malfunction’’ to frequency, degree and duration of emissions inventories, modeling much more broadly mean any ‘‘sudden various malfunctions that might occur. demonstrations and other regulatory and unavoidable breakdown of process Although the EPA has not, to date, contexts as appropriate. or control equipment.’’ Specifically, the found it practicable to develop emission 23. Comments that the EPA has failed commenter advocated, the EPA should standards that apply during periods of to account adequately for the cost of this no longer recommend that a malfunction in place of an otherwise SIP call action and is therefore in malfunction be defined as an event that: applicable emission limitation, this does violation of the Regulatory Flexibility (i) Was caused by a sudden, infrequent not preclude the possibility that a state Act, the Unfunded Mandates Reform and unavoidable failure of air pollution may determine that it can do so for all Act and Administration policy. control equipment, process equipment or some set of malfunctions. Second, Comment: Two commenters argued or a process to operate in a normal or states are not bound to establish any that the SNPR lacks sufficient analysis usual manner; (ii) could not have been specific definition of ‘‘malfunction’’ in of what this action will cost states, prevented through careful planning, their SIPs. Thus, it is difficult to judge stationary sources and the public. The proper design or better operation and at this time whether any particular commenters allege that this absence of maintenance practices; (iii) did not stem alternative emission limitation in a SIP economic impact analysis is contrary to from any activity or event that could for malfunctions, including any specific the Regulatory Flexibility Act, the have been foreseen and avoided or work practice requirements in place of Unfunded Mandates Reform Act and planned for; and (iv) was not part of a an otherwise applicable emission Administration policy. One of the recurring pattern indicative of limitation, would be approvable. commenters also noted that imposing inadequate design, operation or With regard to the specific comment substantial ‘‘unfunded mandates’’ on maintenance. By changing the that the affirmative defense criteria state regulatory agencies and forcing ‘‘affirmative defense’’ provisions for could be converted into a work practice stationary sources to absorb additional malfunctions into ‘‘work practice’’ or requirement to apply during costs should be evaluated carefully. ‘‘general duty’’ provisions for malfunctions in place of an otherwise Response: The EPA disagrees with the malfunctions, the commenters argued, applicable emission limitation, the EPA commenters’ allegation that the EPA has the revised provisions would be is unsure at this time whether the failed to comply with relevant statutes consistent with CAA requirements. criteria previously recommended for an and Administration policy in Under this approach, the commenters affirmative defense provision would accounting for the cost of the actions asserted that compliance with these new serve to meet the obligation to develop proposed in the SNPR. The EPA did in requirements would mean that any an appropriate alternative emission fact properly consider the costs imposed emissions during a malfunction event limitation. Existing affirmative defense by this action. These issues are could not be considered ‘‘excess’’ or criteria (which include, among other addressed in more detail in section result in any violation if the source had things, making repairs expeditiously, V.D.7 of this document. complied with the ‘‘work practice’’ taking all possible steps to minimize 24. Comments that states should not criteria. emissions and operating in a manner be required to eliminate affirmative Response: As an initial matter, the consistent with good practices for defense provisions but rather should be EPA has not established a regulatory minimizing emissions) were developed allowed to revise them to be appropriate definition of ‘‘malfunction’’ that is in the context of helping to determine under CAA requirements. binding on states when developing SIPs. whether a source should be excused Comment: One state commenter States have the flexibility in their SIPs from monetary penalties for violations claimed that it should be allowed to to define that term. Thus, the EPA is not of CAA requirements and were not revise its existing affirmative defense

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provisions rather than remove them. such revised provisions in evaluating such an approach is inconsistent with The commenter asserted that the state whether the state has adequate the CAA as interpreted by the court in should be allowed to revise the enforcement authority to meet the NRDC, as explained in the SNPR. provision to make clear that it does not requirements of section 110(a)(2)(C) and The EPA also disagrees that apply to private enforcement actions also whether application of such a affirmative defense provisions would under CAA section 304(a), which was provision in a state administrative have been appropriate to address the the only issue specifically before the proceeding could interfere with the ‘‘repeated noncompliance’’ concerns of court in NRDC v. EPA. Relying on the ability of a citizen or the EPA to bring the commenters. The EPA’s prior court’s decision, the commenter claimed a federal enforcement action. interpretation of the CAA was that states that the state should be allowed to 25. Comments that states’ ability to could create narrowly tailored revise the affirmative defense provisions use enforcement discretion is not an affirmative defense provisions to apply only in administrative adequate replacement for affirmative applicable to malfunctions. However, to enforcement proceedings. The defense provisions. the extent that there are malfunctions commenter also argued that there may Comment: Several commenters argued that put a source in the position of be other options for appropriately that exercise of enforcement discretion ‘‘repeated noncompliance,’’ the form of tailoring the state’s existing affirmative is not an adequate substitute for an affirmative defense that the EPA defense provisions rather than removing affirmative defense, particularly where previously believed was consistent with them from the SIP. the emissions at issue resulted from an the CAA would not have provided relief Response: The EPA agrees that the inevitable and unavoidable malfunction. because several of the criteria could not court in NRDC v. EPA did not directly In any individual case, the commenters be met. Specifically, the EPA believes address whether states have authority to were concerned that even if a state repeated noncompliance is typically a create affirmative defense provisions elects not to enforce against a violation, result of inadequate design, is part of a that apply exclusively to state personnel the EPA or others might elect to bring ‘‘recurring pattern,’’ and thus likely in the context of state administrative an enforcement action. One commenter could have been ‘‘foreseen and enforcement actions. Statements by the contended that it is inappropriate for avoided.’’ In short, an affirmative court concerning the EPA’s own the EPA to encourage states to use defense would not have been authority in the context of enforcement discretion instead of appropriate for such a source. administrative enforcement, however, encouraging them to create alternative 26. Comments that the EPA should indicate that the court did not intend to emission limitations to replace establish specific rules to govern how foreclose the Agency from exercising its affirmative defenses in SIP provisions. states set alternative limitations that own enforcement discretion with The commenters also alleged that apply in lieu of affirmative defense respect to remedies in federal reliance on judicial discretion to provisions. administrative enforcement actions. determine the appropriateness of Comment: Commenters urged the EPA However, the EPA has reevaluated its penalties is similarly inadequate. to clarify in this final action that states interpretation of CAA requirements in The commenters contended that, may establish alternative emission light of the court’s decision in NRDC v. although it is reasonable for a state to limitations applicable to startup and EPA and the EPA now interprets the exercise enforcement discretion under shutdown only if the source meets all CAA to preclude state SIP provisions circumstances when an emission applicable CAA requirements, including creating affirmative defenses that limitation cannot be met, it is not but not limited to BACT/LAER, and the sources could assert in the context of reasonable to adopt SIP provisions with state also demonstrates through judicial enforcement in federal court, emission limitations that put some modeling that potential worst-case whether initiated by states, the EPA, or sources in the position of ‘‘repeated emissions from startup and shutdown other parties pursuant to section 304. noncompliance.’’ would not interfere with attainment and The EPA agrees that states may elect Response: These comments reasonable further progress. Other to revise their existing deficient addressing whether an enforcement commenters stated that any changes to affirmative defense provisions to make discretion approach is sufficient are SIP emission limitations must be made them ‘‘enforcement discretion’’-type similar to comments received on the as part of a SIP revision process, which provisions that apply only in the February 2013 proposal to which the would include a demonstration that context of administrative enforcement EPA responds in section VII.A.3.p of higher levels of emissions during by the state. Such revised provisions this document. Through this SIP call, startup and/or shutdown would not lead would need to be unequivocally clear the EPA is not requiring states to rely on to violations of the NAAQS or PSD that they do not provide an affirmative enforcement discretion in place of increments. defense that sources can raise in a achievable SIP emission limitations. Commenters also argued that any judicial enforcement context or against Rather, the EPA is requiring states to such alternative emission limitation any party other than the state. Moreover, ensure that emission limitations are should ‘‘sunset’’ each time the EPA such provisions would have to make consistent with the definition of that promulgates a new NAAQS and that the clear that the assertion of an affirmative term in section 302(k), and specifically Agency should require the state to defense by the source in a state that emission standards provide for demonstrate again that an alternative administrative enforcement context has continuous compliance. If emission emission limitation applicable during no bearing on the additional remedies limitations that apply during routine startup and/or shutdown does not that the EPA or other parties may seek operations cannot be met by a source interfere with attainment or other for the same violation in federal during periods of startup or shutdown, applicable requirements of the CAA for administrative enforcement proceedings states have authority to establish the revised NAAQS. In support of their or judicial proceedings. alternative emission standards. The EPA arguments that the EPA should impose In this action, the EPA is not disagrees that an affirmative defense for specific requirements of this type, the determining whether any such revisions penalties for excess emissions for commenters indicated that a state has would meet applicable CAA periods of malfunctions is an adequate issued permits for sources that establish requirements. The EPA would need to substitute for an enforceable continuous particulate matter (PM) emission consider the precise wording of any emission limitation and concludes that limitations less stringent than existing

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permit terms and without requiring a concerning issues related to the proper that could lead to backsliding. When the BACT/LAER/ambient impacts analysis treatment of emissions during SSM EPA promulgates new or revised and has done so without public notice events in SIP provisions. For example, NAAQS, it has historically issued rules and comment. Commenters urged the the EPA is addressing the concern or guidance to states concerning how to EPA to require states to follow public raised by commenters that states will address the transition to the new notice-and-comment processes before need to ensure that any SIP revisions in NAAQS. In this process, the EPA issuing any permits for sources with response to this SIP call will meet typically addresses how states should alternative limitations less stringent applicable CAA requirements. Under reexamine existing SIP emission than those imposed by the SIP and section 110(k)(3), the EPA has authority limitations to determine whether they claimed such process is required under to approve SIP revisions only if they should be revised. With respect to the CAA. comply with CAA requirements. technology-based rules, the EPA has In addition, some commenters stated Moreover, under section 110(l), the EPA typically taken the position that states that if the EPA allows states to set ‘‘new, cannot approve SIP revisions if they need not adopt new SIP emission higher, or alternate limits’’ applicable would ‘‘interfere with any applicable limitations for sources where the state during startup and shutdown, the EPA requirement concerning attainment and can demonstrate that existing SIP should set clear parameters. According reasonable further progress . . . or any provisions still meet the relevant to commenters, the EPA at a minimum other applicable requirement’’ of the statutory obligations. For example, the should require, for emissions that have CAA. The EPA believes that both states EPA believes that states can establish not previously been authorized or and the Agency can address these issues that existing SIP provisions still considered part of a source’s potential to in SIP rulemakings without the need for represent RACT for a specific source or emit, that: (i) Limitations must meet any additional federal regulations as source category for a revised NAAQS. In BACT/LAER; (ii) there should be clear, suggested by the commenters. making this determination, states would enforceable rules for when alternate The EPA agrees with the concerns need to review the entire emission limitations apply; (iii) there should be a raised by the commenters regarding limitation, including any alternative demonstration that worst-case emissions instances where a state has issued numerical limitations, control will not cause or contribute to a source permits that impose less technologies or work practices that violation of the NAAQS or PSD stringent emission limitations than apply during modes of operation such increments; and (iv) proposed otherwise established in the SIP. Using as startup and shutdown, and ensure limitations should be subject to public a permitting process to create that all components of the SIP emission notice and comment and judicial exemptions from emission limitations in limitation meet all applicable CAA review. The commenter pointed to a SIP emission limitations applicable to requirements. letter from the EPA to Texas in which, the source is tantamount to revising the 27. Comments that the EPA should the commenter claims, the Agency SIP without meeting the procedural and closely monitor states’ SIP revisions in indicated that these parameters must be substantive requirements for a SIP response to this SIP call. met. revision. The Agency’s views on this Comment: Commenters urged the EPA A commenter stated that the EPA issue are described in more detail in to monitor states’ efforts to revise SIPs should unequivocally state in this final section VII.C.3.e of this document. in response to the SIP call closely in action that: (i) All potential to emit The EPA does not agree with the order to assure that the revisions meet emissions, including quantifiable comment that suggests ‘‘worst-case all applicable requirements. The emissions associated with startup and modeling’’ would always be needed to commenters indicated concern that shutdown, must be included in federal show that a SIP revision establishing states and industry may weaken applicability determinations and air alternative emission limitations for emission limitations through this quality permit reviews; (ii) startup and shutdown would not process. The commenter alleged that authorization of these emissions must interfere with attainment or reasonable one state has issued permits for sources include technology reviews and impacts further progress. The nature of the with emission limitations applicable analyses; and (iii) the above technical demonstration needed under during SSM events that are less requirements must be included in the section 110(l) to support approval of a stringent than the emission limitations permit that authorizes routine emissions SIP revision depends on the facts and approved in the SIP. Furthermore, the from the applicable units and must be circumstances of the SIP revision at commenter alleged, the state issued subject to public notice, comment and issue. The EPA will evaluate SIP these permits without public notice and judicial review. submissions that create alternative comment. As support for this A commenter recognized that there emission limitations applicable to contention, the commenter detailed the may be a variety of ways in which states certain modes of operation such as differences between the requirements of can authorize different limits to apply startup and shutdown carefully and will a permit issued for a source and the during startup and shutdown but argued work with the states to assure that any requirements in the SIP. The commenter that, no matter the method chosen, the such limitations are consistent with also claimed that the state has issued emissions need to be fully accounted for applicable CAA requirements. Under permits for other facilities similar to the by the state in the relevant SIP, certain circumstances, there may be one it described in detail in the including a demonstration that the alternative emission limitations that comments. additional emissions authorized during necessitate a modeling of worst-case Response: The EPA understands the startup and shutdown will not violate scenarios, but those will be determined concerns expressed by the commenter any NAAQS. on a case-by-case basis. that SIP revisions made in response to Response: The EPA understands the The EPA also does not agree that this SIP call need to be consistent with concerns raised by the commenters but existing SIP provisions with alternative CAA requirements. As explained in this does not agree that further regulatory emission limitations should document, the states and the EPA will action such as issuance of regulatory automatically ‘‘sunset’’ upon work to assure that the SIP revisions text is necessary at this time. Through promulgation of a new or revised will meet applicable legal requirements. this action, the EPA is providing NAAQS. Such a process could result in The EPA will evaluate these SIP comprehensive guidance to states gaps in the state’s regulatory structure submissions consistent with its

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obligations under sections 110(k)(3), deprivation of property.’’ 62 Other claimed as unconstitutional ‘‘as 110(l) and 193 and under any other commenters claimed that excessive applied.’’ substantive provisions of the CAA penalties constitute an arbitrary 30. Comments that the EPA’s action applicable to specific SIP submissions. deprivation of property. The eliminating affirmative defense To the extent that the commenters are commenters asserted that a penalty is provisions from SIPs violates the Eighth concerned about whether the SIP excessive where it applies severe Amendment of the Constitution. revisions meet applicable requirements, punishment to an act that is Comment: Several commenters they will have the opportunity to unavoidable. asserted that relying on judicial participate in the development of those Response: The commenters’ due discretion to determine the revisions. States must submit SIP process concerns suggest that without appropriateness of penalties is arguably revisions following an opportunity for an affirmative defense provision, any unconstitutional under the Eighth comment at the state level. penalty assessed for violation of a SIP Amendment’s prohibition on excessive Additionally, the EPA acts on SIP would be per se ‘‘excessive’’ or fines and punishments by allowing submissions through its own notice- ‘‘arbitrary.’’ Though not expressly potentially significant penalties that are and-comment process. As part of these stated, some of these comments appear disproportionate to the offense. The administrative processes, both the state to suggest that the existing CAA commenter stated that an affirmative and the EPA will need to evaluate enforcement provisions are facially defense provision ‘‘helps guard against whether the proposed revision to the unconstitutional. The EPA disagrees. infringement of the Eighth SIP meets applicable CAA requirements. The CAA does not mandate that any Amendment’s protections.’’ Other In the context of those future penalty is automatically assessed for a commenters argued that the U.S. rulemaking actions, the public will have violation. Rather the CAA establishes a Supreme Court has held that Eighth a chance to review the substance of the maximum civil penalty in section 113(b) Amendment protections apply to specific SIP revisions in response to this but then expressly provides in section government action in a civil context as SIP call, as well as the state’s and the 113(e) the criteria that the EPA or the well as in a criminal context. The EPA’s analysis of the SIP submissions courts (as appropriate in administrative commenters claimed that significant for compliance with the CAA. or judicial enforcement) ‘‘shall take into penalties are not proportional to an 28. Comments that the EPA does not consideration (in addition to other offense caused by unavoidable events, have authority to take this action factors as justice may require).’’ These such as excess emissions during without Congressional authorization. criteria explicitly include consideration malfunction events. The commenters Comment: A commenter contended of ‘‘good faith efforts to comply.’’ Thus, concluded that unless the EPA allows that the EPA does not have the authority the CAA on its face does not mandate states to accommodate unavoidable to write law and that the EPA should be the imposition of any penalty emissions through changes to applicable required to seek changes to the automatically, much less one that is per emission limitations before affirmative applicable law through Congress, before se excessive. Notably, the commenters defenses are removed, the EPA’s eliminating affirmative defense and due do not elaborate on how or why they proposal would ‘‘run afoul of process provisions from SIPs. believe the statutory penalty provisions Constitutional limitations.’’ Response: Through this action the of the CAA are facially unconstitutional, One commenter stated that an EPA is not attempting to rewrite the instead making generalized claims. affirmative defense is the ‘‘minimum CAA. Rather, the EPA is requiring states To the extent that the commenters are protection EPA or the state must to revise specific SIP provisions to raising an ‘‘as applied’’ claim of provide to avoid infringing comply with the existing requirements unconstitutionality, any such claim can constitutional rights.’’ The commenter of the CAA, as interpreted by the courts. be raised in the future in the context of also argued that the EPA itself has relied As explained in detail in the SNPR and a specific application of the statute in an on the existence of an affirmative this document, the EPA has determined enforcement action. Such was the case defense to defend against a challenge to that affirmative defense provisions at in the State Farm case cited by the the achievability of an emission issue in this action are inconsistent with commenters. In that case, a court had limitation in a FIP. To support this the existing requirements of the CAA. awarded punitive damages of $145 argument, the commenter quoted from 29. Comments that affirmative defense million in addition to $1 million the court’s opinion in Montana provisions are needed to ensure sources’ compensatory damages in an Sulphur.63 Constitutional right to due process in automobile liability case. A statutory Response: For the reasons provided the event of violations. penalty provision was not at issue in above regarding commenters’ due Comment: A number of commenters that case and thus there were no process claims, the EPA also disagrees argued that by requiring the removal of statutory criteria for the lower court to with their claims that eliminating affirmative defense provisions from consider in determining the appropriate affirmative defense provisions in SIPs SIPs, the EPA is impinging on the penalty amount. Rather, in its review of would result in the penalty provisions Constitutional rights of sources that may whether the punitive damage award was of the CAA being facially in violation of have wanted to assert such affirmative excessive, and thus violated due the Eighth Amendment. Similarly, if a defenses in an enforcement action. A process, the Court looked at three party believes that the penalties commenter claimed that affirmative factors it has instructed lower courts to assessed in any civil enforcement action defense provisions are not ‘‘loop holes,’’ consider in assessing punitive damages. do violate the Eighth Amendment, they as alleged by the EPA, but instead are Such would be the case with any claim can raise a challenge that the specific fundamental due process provisions that a CAA penalty violated due SIP provision at issue ‘‘as applied’’ in which should be retained at all levels process, where a reviewing court would that instance violates the U.S. for the protection of the public. Another consider whether the court Constitution. As with the commenters’ commenter cited State Farm Mut. Auto appropriately considered the relevant Ins. Co. v. Campbell, for the proposition penalty factors in assessing a penalty 63 See 666 F.3d at 1192–93 (‘‘EPA acknowledges that violations are likely inevitable, but relies on the that a monetary penalty that is ‘‘grossly provision of an affirmative defense to compensate excessive . . . constitutes an arbitrary 62 See 538 U.S. 408, 417 (2003). for infeasibility problems.’’).

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due process arguments, the EPA particularly true where states might burden on government agencies by believes that Congress has already elect to consider more substantial placing the burden on the entity that is adequately addressed their concerns revision of a SIP emission limitation, in the best position to calculate the level about potential unfair punishment for rather than merely removal of the of excess emissions and also provide violations by authorizing courts to impermissible automatic or other relevant information regarding consider a range of factors in discretionary exemption or the such events. In addition, to make this determining what remedies to impose impermissible affirmative defense information available to the public for a particular violation, including the provision. In addition, the EPA believes quickly allows for a timely response if explicit factors for consideration in that providing states with the full 18 there is any health concern. An imposition of civil penalties as well as months will be more likely to result in increased level of communication other factors as justice may require. timely SIP submissions that will meet between industry and residents also The EPA acknowledges that is has CAA requirements and provide the serves to build a better community previously relied on affirmative defense ultimate outcome that the commenters relationship and partnership. The EPA provisions as a mechanism to mitigate seek. Some states subject to the SIP call also supports such requirements as penalties where a violation was beyond may be able to revise their deficient SIP components of SIP emission limitations the control of the owner or operator. provisions more quickly, and the EPA is because they facilitate effective These actions, however, predated the committed to working with states to compliance assurance. However, the court’s decision in NRDC v. EPA and the revise these provisions consistent with EPA does not believe that the Agency EPA has since revised its approach to CAA requirements in a timely fashion. should create a separate federal affirmative defense provisions in its For these reasons, the EPA does not requirement addressing this issue own rulemaking actions. In addition, agree that it would be reasonable to beyond general CAA requirements at the EPA believes that the penalty provide less than the 18-month this time. criteria in section 113(e) provide a maximum period allowed under the 33. Comments that this SIP call action similar function and the commenters do CAA for states to submit SIP revisions concerning affirmative defense not explain why they believe these in response to the SIP call. provisions is being taken pursuant to explicit statutory factors do not provide 32. Comments that the EPA should sue-and-settle tactics. sufficient relief from the imposition of encourage states to add reporting and Comment: One commenter alleged an allegedly unconstitutionally notification provisions into their SIPs. that the action proposed in the EPA’s excessive penalty. Comment: A commenter urged the SNPR has an ‘‘impermissible sue-and- 31. Comments that the EPA should EPA to encourage states to make settle genesis’’ and that the EPA is impose a deadline of 12 months for information about excess emissions attempting to grant as much of Sierra states to respond to this SIP call with events easily and quickly accessible to Club’s petition as it can ‘‘regardless of respect to affirmative defense the public. The commenter claimed that the wisdom or permissibility of doing provisions. it is unacceptable to make it difficult for so.’’ Comment: An environmental members of the public to obtain Response: The EPA disagrees with the organization commented that the EPA information about potential harmful commenter’s allegation that the EPA’s should require affected states to make exposure to pollutants and that state proposed action in the SNPR is the required SIP revisions within 12 ‘‘open-record’’ request laws are inappropriate because it is the result of months, rather than the 18 months inadequate, particularly when the ‘‘sue-and-settle’’ actions. This is a proposed in the February 2013 proposal public is not informed that an event rulemaking in which the EPA is taking and the SNPR. The commenter claimed occurred. The commenter also asserted action to respond to a petition for that communities near large sources that reporting provisions enhance rulemaking, and it has undergone a full have been suffering for decades and compliance and cited to the Toxic notice-and-comment rulemaking individuals are suffering adverse health Release Inventory program’s success in process as provided for in the CAA. effects because of the emissions from driving pollution reduction. The This issue is addressed in more detail in sources that are currently allowed by commenter argued that section V.D.1 of this document. deficient SIP provisions. The contemporaneous reporting of the 34. Comments that affirmative defense commenter also stated that the EPA has conditions surrounding a violation, the provisions do not alter or eliminate recognized that excess emissions cause and the measures taken to limit or federal court jurisdiction and therefore allowed by the SIP provisions subject to prevent emissions ensure that do not violate CAA sections 113 or 304. the SIP call are continuing to interfere stakeholders can respond in real time Comment: Two commenters argued with attainment and maintenance of the and also target enforcement efforts to that SIP affirmative defense provisions NAAQS and that this justifies imposing violations where further action is do not in fact interfere with the rights a shorter schedule for states to respond warranted. As support for this approach, of litigants to pursue enforcement to the SIP call. the commenter pointed to Jefferson consistent with their rights under the Response: The EPA acknowledges the County, Kentucky, as a local air quality citizen suit provision of CAA section concerns expressed by the commenters control area that has already corrected 304, because plaintiffs have the right to and the importance of providing problematic regulations in advance of bring a citizen suit despite the existence environmental protection. However, as this SIP call and also noted that the of affirmative defense provisions. One explained in the February 2013 proposal County included notification and commenter cited at least four instances and in section IV.D.14 of this document, reporting requirements, recognizing that in the last few years in which the EPA believes that providing states they would reduce the burden on the environmental groups filed enforcement with the full 18 months authorized by government in trying to calculate the actions against sources in federal section 110(k)(5) is appropriate in this level of excess emissions and also help district court based on alleged emissions action. The EPA is taking into in responding to citizen inquiries about events for which the companies asserted consideration that state rule such events. affirmative defenses. The commenters development and the associated Response: The EPA agrees with the stated that courts applied the affirmative administrative processes can be commenter that reporting and defense provision criteria and the complex and time-consuming. This is notification provisions can ease the criteria of section 113(e) to determine

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whether penalties were appropriate for cloud plant operators’ thinking when lack authority under the CAA to alter alleged violations and did not dismiss they make safety decisions. The the jurisdiction of the federal courts plaintiffs’ claims for lack of jurisdiction. commenter contended that allowing through affirmative defense provisions According to the commenters, rare, safely controlled releases of in SIPs, then the EPA lacks authority to affirmative defense provisions place emissions would invariably be better for approve any such provision in a SIP. additional burden on the sources, not both the natural and human The EPA notes that the court in NRDC plaintiffs, to demonstrate that the environment than the damage from a v. EPA did not indicate that the criteria of an affirmative defense are catastrophic explosion. statutory provisions should be met. Response: Although the comment interpreted differently based on Response: The commenters argued refers to SSM events generally, the only speculation that a given source operator that affirmative defense provisions are specific concern raised by the might allow a catastrophic explosion not inconsistent with the statutory commenter concerning affirmative because of the absence of an affirmative requirements of section 304, because defense provisions is that if they are not defense. citizen groups still bring enforcement allowed in SIPs, this may lead to an 36. Comments that the SNPR did not actions for events where companies may increase in malfunction-related meet the procedural requirements of raise an affirmative defense. Even if this catastrophic events. The EPA does not section 307(d) because the EPA failed to were so, the EPA disagrees with the agree with the commenter’s view that provide its legal interpretations or commenters that this establishes that removal of affirmative defense explain the data relied upon in this affirmative defense provisions are provisions may increase environmental rulemaking. consistent with CAA requirements. The harm related to catastrophic events. The Comment: Commenters claimed that mere existence of enforcement actions EPA believes that it is unlikely the the EPA violated the procedural does not negate the fact that affirmative availability or unavailability of an requirements of the CAA in the SNPR. defense provisions interfere with affirmative defense will affect a The commenters asserted that the EPA effective enforcement of SIP emission responsible and competent source designated this rulemaking a section limitations according to CAA section operator’s response to a risk of 307(d) action, and the commenters 304. More to the point, affirmative explosion. First, an explosion presents claimed that the EPA did not follow the defense provisions purport to alter or much more serious and more certain procedures required in section 307(d). eliminate the statutory jurisdiction of adverse economic consequences for the The commenters claimed that the EPA courts to determine liability or to source than does the specter of a failed to provide a statement of basis impose remedies for violations, which potential enforcement action for a CAA and purpose that includes ‘‘the major makes the provisions inconsistent with violation, especially because legal interpretations and policy the grant of authority in sections 113 enforcement agencies and courts are consideration underlying the proposed and 304. The court’s decision in NRDC likely to exercise leniency if the rule.’’ v. EPA was not based on the question violation was the result of an In particular, the commenters argued of whether plaintiffs could still try to unpreventable malfunction. Second, that the EPA did not provide required bring an enforcement case for violations even if an affirmative defense were information with regard to its proposed of the EPA regulation at issue; the case available, it is only used after initiation SIP call concerning the affirmative was decided on the grounds that the of an enforcement proceeding, and defense provisions in the Texas SIP. EPA when creating regulations has no successful assertion of such a defense in Commenters claimed that the SNPR is authority to limit or eliminate the an enforcement proceeding depends on deficient because it does not address: (i) jurisdiction of the courts. As explained meeting all affirmative defense criteria Why the Fifth Circuit decision in in the SNPR and this document, the and is not guaranteed. The EPA does not Luminant Generation v. EPA does not EPA believes that the same principle believe that a responsible and control the present action; (ii) on what applies to states when creating SIP competent source operator’s actions in basis the EPA believes it may disregard provisions. an emergency situation would be the judgment in Luminant Generation v. 35. Comments that this action may influenced by speculation that if the EPA; (iii) why the DC Circuit decision, increase the chance of catastrophic source is subject to an enforcement which does not address the Texas SIP, failure at facilities. action in the future, there may be a should take precedence over the Comment: One commenter expressed defense to penalties available. Luminant Generation v. EPA decision; a concern that eliminating affirmative Moreover, as explained in detail in (iv) on what basis the EPA believes that defense provisions applicable to the SNPR and this document, the court’s the DC Circuit may reach a different emissions during SSM events could decision in NRDC v. EPA held that result than the Fifth Circuit as to the increase the potential for environmental section 113 and section 304 preclude affirmative defenses in the Texas SIP; harm caused by catastrophic failure by EPA authority to create affirmative and (v) the grounds for ‘‘acquiescing’’ to outlawing and penalizing the emissions defense provisions in the Agency’s own the DC Circuit decision in NRDC v. EPA, during SSM events that have previously regulations imposing emission which specifically states that it does not been allowed or shielded from liability limitations on sources, because such apply to SIP revisions, and ignoring the through affirmative defense provisions. provisions purport to alter the relevant holding in the Fifth Circuit. As an example, the commenter argued jurisdiction of federal courts to assess Commenters cited several cases that refineries and gas plants must be liability and impose penalties for claiming that the DC Circuit has held allowed to vent VOCs to the atmosphere violations of those limits in private civil that, unlike under the Administrative on the rare occasion that there is an enforcement cases. The EPA believes Procedure Act (APA), under CAA equipment malfunction that could that the reasoning of the court in that section 307(d) the EPA is required to otherwise cause an explosion that might decision indicates that the states, like give a detailed explanation of its destroy the plant and surrounding the EPA, have no authority in SIP reasoning and that commenters should neighborhood. The commenter provisions to alter the jurisdiction of not be required to ‘‘divine the agency’s speculated that the threat of costly new federal courts to assess penalties for unspoken thoughts.’’ fines inherent with the removal of violations of CAA requirements through Response: The EPA disagrees with the affirmative defense provisions could affirmative defense provisions. If states commenters’ premise. The EPA did

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discuss the Luminant Generation v. EPA this document, when the EPA takes regulated community by providing decision in the SNPR and also final action on a state’s SIP submission, structure to how the state will exercise explained in detail why it believes that this does not necessarily entail its enforcement discretion. The state the logic of the DC Circuit’s decision in reexamination and reapproval of every expressed concern that without the NRDC v. EPA supports this SIP call provision in the existing SIP. The EPA affirmative defense, there will be action for affirmative defense often only examines the specific SIP uncertainty for the regulated community provisions. Specifically, the EPA provision the state seeks to revise in the and less incentive for sources to make recognized that both the Fifth Circuit SIP submission, which may not include repairs and submit excess emissions and the DC Circuit were evaluating the any affirmative defense provisions. To reports promptly. The commenter same fundamental question—whether the extent the EPA did review and explained that state law requires section 113 and section 304 preclude approve any affirmative defense reporting of emission events that exceed the creation of affirmative defense provision consistent with its prior an established ‘‘reportable’’ quantity provisions that alter or eliminate the interpretation of the CAA that narrowly and that this prompt reporting allows jurisdiction of federal courts to tailored affirmative defenses were the state agency to evaluate each event determine liability and impose remedies appropriate, the EPA has fully reported quickly. In investigating for violations of CAA requirements in explained why it is now revising that reports of emission events, the state judicial enforcement actions. The EPA interpretation such that past action claimed, it ‘‘exercises enforcement explained that, after reviewing the based on the earlier interpretation discretion only in cases in which it NRDC v. EPA decision and the would no longer provide precedent for determines that each affirmative defense Luminant Generation v. EPA decision, the EPA’s actions. As part of this final criteria is met,’’ and the state claimed the Agency determined that its prior action, applying its revised SSM Policy, that elimination of the affirmative interpretation of the CAA, as advanced the EPA is taking action to address defense provision would result in an in both courts, is not the best reading of affirmative defense provisions in SIPs. increase of unavoidable emissions being the statute. Indeed, it is significant that Since the issuance of the court’s opinion treated as violations. In general, the the Luminant court upheld the EPA’s in NRDC v. EPA, the EPA has similarly state objected to the elimination of the approval of affirmative defense taken steps in its own ongoing NSPS affirmative defense provision because it provisions for unplanned events (i.e., and NESHAP rulemakings to ensure that would strain the state agency’s malfunctions) and the disapproval of any existing affirmative defense enforcement resources. affirmative defenses for planned events provisions are removed and that no Response: These comments (i.e., startup, shutdown and affirmative defenses are proposed or concerning the state’s use of affirmative maintenance) specifically because the finalized.64 defense criteria in structuring the court deferred to the Agency’s 38. Comments that affirmative defense exercise of its enforcement discretion reasonable interpretation of ambiguous provisions function as structured state (e.g., determining whether to bring an statutory provisions in the case at hand. ‘‘enforcement discretion’’ and are an enforcement action or to further In the SNPR, the EPA explained point important tool for states to prioritize investigate an emissions events) appear by point why it now believes that the enforcement activities. to be based on a misunderstanding of decision of the DC Circuit in NRDC v. Comment: A state commenter the SNPR. This SIP call action directing EPA reflected the better reading of characterized the affirmative defense states to remove affirmative defense section 113 and section 304 and thus contained in the state’s SIP as an provisions from SIPs would not prevent that the Agency no longer interprets the ‘‘enforcement discretion’’ tool that the state from applying such criteria in CAA to permit affirmative defenses in supports the state’s regulation of excess the exercise of its own enforcement SIP provisions. Therefore, the EPA emissions during malfunction events discretion. For example, the state is free believes the Fifth Circuit could also take and promotes preventive measures, to consider factors such as a facility’s a different view of the reasonableness of proper monitoring and reporting by efforts to comply and the facility’s the EPA’s resolution of ambiguous sources. The state asserted that removal compliance history in determining provisions after reviewing the EPA’s of the affirmative defense provision whether to investigate an excess current interpretation of the statute. from the SIP would require the state to emissions event or whether to issue a 37. Comments that the EPA has address and track violations that are not notice of violation or otherwise pursue recently approved affirmative defense a high priority to the state agency. The enforcement. Application of such provisions through various SIP actions state argued that the affirmative defense criteria may well be useful and and, therefore, these provisions are provision provides certainty to the appropriate to the state in determining proper under the EPA’s interpretation of the best way to allocate its own the CAA. 64 See, e.g., ‘‘National Emission Standards for enforcement resources. So long as a Comment: One commenter noted that Hazardous Air Pollutants Residual Risk and state does not use the criteria in such a Technology Review for Flexible Polyurethane Foam the EPA has never taken issue with the Production; Final rule,’’ 79 FR 48073 (August 15, way that the state fails to have a valid affirmative defense provisions in states’ 2014) (announcing decision not to finalize the enforcement program as required by SIPs across the many instances where proposed affirmative defense); ‘‘National Emission section 110(a)(2)(C), the state is free to the EPA has reviewed the states’ later Standards for Hazardous Air Pollutants: Generic use criteria like those of an affirmative Maximum Achievable Control Technology SIP submissions. The implication of the Standards; and Manufacture of Amino/Phenolic defense as a way to ‘‘structure’’ its commenters’ argument is that if the EPA Resins; Final rule,’’ 79 FR 60897 (October 8, 2014) exercise of its own enforcement has previously approved a SIP (announcing decision not to finalize the proposed discretion. submission and directly or indirectly affirmative defense); ‘‘Oil and Natural Gas Sector: However, as explained in the SNPR, Reconsideration of Additional Provisions of New reapproved an affirmative defense Source Performance Standards; Final rule,’’ 79 FR the EPA’s view is that SIPs cannot provision in the past, this means that 79017 (December 31, 2014) (removing affirmative include affirmative defense provisions the affirmative defense provision still defense from regulations); and ‘‘National Emission that alter the jurisdiction of the federal meets CAA requirements. Standards for Hazardous Air Pollutants for Major court to assess penalties in judicial Sources: Industrial, Commercial, and Institutional Response: The EPA disagrees with Boilers and Process Heaters; Proposed rule,’’ 80 FR enforcement proceeding for violation of this comment. As explained in the 3089 (January 21, 2015) (proposing to remove CAA requirements. The EPA has EPA’s response in section VIII.D.18 of affirmative defense from regulations). determined that the specific affirmative

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defense provisions at issue in the SIP of punishment should not be imposed, party can challenge such standards at the state commenter are inconsistent conflicts with the CAA’s requirements the time of adoption. with CAA requirements for SIP for pre-enforcement review. The 40. Comments that the EPA should provisions. In addition, the EPA commenters stated that emission announce that it no longer recognizes interprets the CAA to bar ‘‘enforcement limitations that could have been existing affirmative defense provisions, discretion’’ provisions in SIPs that challenged at the time of promulgation effective immediately. operate to impose the enforcement are not subject to judicial review in an Comment: Commenters claimed that discretion decisions of the state upon enforcement proceeding. Thus, the because the court held in NRDC v. EPA the EPA or any other parties who may commenters claimed that any challenges that the EPA was without authority to seek to enforce pursuant to section 304. to the achievability of a SIP emission interpret the CAA to allow affirmative Pursuant to the requirements of sections limitation must be made at the time the defenses, the EPA should explicitly 110(k), 110(l) and 193, the EPA has both emission limitation is promulgated and state that it no longer recognizes such the authority and the responsibility to that judges will not consider such provisions immediately. The evaluate SIP submissions to assure that arguments in the context of an commenters argued that by proceeding they meet the requirements of the CAA. enforcement action. The commenters under its authority under section Pursuant to section 110(k)(5), the EPA argued that forcing states to adopt 110(k)(5), the EPA is providing states 18 has authority and discretion to take unachievable standards and then months to remove the affirmative action to require states to revise prohibiting them from including an defense provisions and that thereafter previously approved SIP provisions if affirmative defense for penalties for the EPA will take additional time to act they do not meet CAA requirements. unavoidable exceedances creates a upon those SIP revisions under section 39. Comments that requiring states to dilemma Congress sought to avoid. 110(k). The commenters argued that this in effect allows sources to continue adopt emissions standards that are not Response: A number of the arguments relying on affirmative defense achievable at all times and then that the commenters are raising appear provisions that are not consistent with expecting courts to render those to go beyond the scope of the affirmative CAA requirements for a period of years standards lawful by employing defense issues in the SNPR. In the into the future. Because the EPA did not discretion in the assessment of penalties SNPR, the EPA revised its prior have authority to approve the is contradictory to CAA section proposal with respect to issues related affirmative defense provisions in the 307(b)(2), which mandates pre- exclusively to affirmative defense first instance, the commenters enforcement review. provisions in SIPs. These comments are Comment: Commenters claimed that contended that the Agency should similar to an argument that any period courts have consistently held that simply declare that the affirmative during which an emission limitation regulators cannot rely on enforcement defense provisions are now null and discretion to establish the achievability cannot be met must be deemed not to void. of emission limitations. The be a violation of the standard. The EPA Response: The EPA understands the commenters referred to a 1973 case is addressing these types of issues, to concerns raised by the commenters but addressing NSPS regulations in which the extent that they were raised in does not agree that it is inappropriate they claimed the court remanded the comments on the February 2013 for the Agency to proceed under section standard to the EPA to support an ‘‘at proposal. The EPA does note, however, 110(k)(5). The affirmative defense all times’’ standard. that the Agency is not requiring states provisions at issue in this action are part Commenters further asserted that to adopt standards that cannot be met of the EPA-approved SIPs for the reliance on the discretion of judges to and then providing that states rely only affected states. The EPA, as well as decide whether and to what extent on enforcement discretion to address states, cannot unilaterally change penalties are appropriate is also not periods of noncompliance. As the EPA provisions of the approved SIP without lawful. The commenters claimed that if has already noted, states may choose to following appropriate notice-and- a state establishes an emission adopt standards that are different from comment procedures. To the extent that limitation on the basis that it is the underlying standards for periods the commenters were advocating that achievable, then the standard must be where the underlying standards cannot the EPA should have proceeded under achievable under all circumstances to otherwise be met. its authority to do error corrections which it applies. The commenters The EPA also disagrees with the under section 110(k)(6) rather than a SIP argued that if a state adopts an emission comments that the holding in NRDC v. call under section 110(k)(5), the Agency limitation that is not achievable under EPA is inconsistent with section has explained in detail in the February all conditions, then the state must 307(b)(2) that provides that regulations 2013 proposal and this document why explain how the standard can be that could have been challenged at it is more appropriate to proceed via SIP reasonably enforced. The commenters promulgation cannot later be challenged call instead. Under the SIP call process, concluded that a numerical emission in an enforcement action. Nothing in the EPA cannot declare approved SIP limitation that cannot be achieved by section 307(b) limits the ability of the provisions null and void prior to state sources at all times is not enforceable court to consider the criteria of section submission and Agency approval of because no amount of penalty can deter 113(e), such as good faith efforts of a revised SIP provisions. the violating conduct. The commenters source to comply in assessing penalties. 41. Comments that instead of acting recognized that it is reasonable for states Neither the decision in NRDC v. EPA through a nationwide SIP call action, to exercise enforcement discretion nor this SIP call action requires states to the EPA should have worked under circumstances when an emission adopt standards that cannot be met. individually with states to correct any limitation cannot be met but argued that Moreover, the public, including deficient SIP provisions. it is not reasonable to adopt a SIP that regulated sources, will be able to Comment: One commenter stated that puts sources in a state of repeated comment on the revised emission rather than using a SIP call to address noncompliance. limitations developed by states in SSM issues in existing SIPs, the EPA Commenters further claimed that the response to this SIP call. If an interested should work with each state’s air agency decision in NRDC v. EPA, while party believes that the state has adopted individually to identify and address SIP allowing sources to argue unjust unachievable emission limitations, that deficiencies and work through the

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normal rulemaking and SIP revision revised interpretation of the CAA to SIPs, the EPA ‘‘issue a call for each of processes to correct any identified affirmative defense provisions in SIPs the states with such a SIP to revise it in problems. consistent with the reasoning of court’s conformity with the requirements or Response: The CAA provides a decision in NRDC v. EPA. The EPA otherwise remedy these defective mechanism specifically for the supplemented and revised its proposed SIPs.’’ 66 correction of flawed SIPs. Section response to the issues raised in the The Petitioner argued that many SIPs 110(k)(5) provides: ‘‘Whenever the Petition to the extent they concern currently contain provisions that are Administrator finds that the applicable affirmative defenses in SIPs, and the inconsistent with the requirements of implementation plan for any area is EPA solicited comment on its revised the CAA. According to the Petitioner, substantially inadequate to . . . comply proposed response. Because the EPA’s these provisions fall into two general with any requirement of [the Act], the interpretation of the CAA with respect categories: (1) Exemptions for excess Administrator shall require the State to to the legal basis for affirmative defense emissions by which such emissions are revise the plan as necessary to correct provisions in SIPs changed from the not treated as violations; and (2) such inadequacies.’’ This type of action time of the February 2013 proposal to enforcement discretion provisions that is commonly referred to as a ‘‘SIP call.’’ the SNPR, comments on the February may be worded in such a way that a The EPA, in this action, is using a SIP 2013 proposal, to the extent they decision by the state not to enforce call to notify states of flawed provisions concern affirmative defenses in SIPs, are against a violation could be construed in SIPs and initiate a process for not relevant to the EPA’s revised by a federal court to bar enforcement by correction of those provisions. proposed action. For example, the EPA under CAA section 113, or by The EPA, largely through its Regional comments on the February 2013 citizens under CAA section 304. Offices, has individually reviewed each proposal that argue that the EPA was First, the Petitioner expressed concern state provision subject to the SIP call. wrong to interpret the CAA to allow that many SIPs have either automatic or The EPA will work closely with each affirmative defense provisions for discretionary exemptions for excess state, during future rulemaking actions malfunction events but not for startup or emissions that occur during periods of taken by states to adopt SIP revisions shutdown events are not relevant when SSM. Automatic exemptions are those and then subsequent actions by the the Agency’s interpretation of the CAA that, on the face of the SIP provision, EPA, to determine whether these is now that no such affirmative defense provide that any excess emissions adopted SIP revisions meet the mandate provisions are valid. Similarly, during such events are not violations of the SIP call and are consistent with comments that the criteria that the EPA even though the source exceeds the CAA requirements. As part of these previously recommended for valid otherwise applicable emission actions, each individual state will work affirmative defense provisions were too limitations. These provisions preclude closely with the EPA to address the SIP many, too few, too stringent or too lax enforcement by the state, the EPA or deficiencies identified in this action. simply have no relevance when the EPA citizens, because by definition these 42. Comments that the EPA should does not interpret the CAA to allow any excess emissions are defined as not not consider those comments on the such affirmative defense provisions violations. Discretionary exemptions or, February 2013 proposal that concern more correctly, exemptions that may regardless of the number, nature or affirmative defense provisions in SIPs to arise as a result of the exercise of stringency of the criteria for qualifying no longer be relevant. ‘‘director’s discretion’’ by state officials, for the affirmative defense. The EPA Comment: One commenter disagreed are exemptions from an otherwise believes that it is reasonable for the with the EPA’s decision not to respond applicable emission limitation that a Agency to determine that comments that to certain comments submitted on the state may grant on a case-by-case basis have no bearing on the proposed action February 2013 proposal, to the extent with or without any public process or concerning affirmative defense the comments applied to issues related approval by the EPA, but that do have provisions in the SNPR are not relevant. to affirmative defense provisions in SIPs the effect of barring enforcement by the Because the EPA is finalizing the action generally or to issues related to specific EPA or citizens. The Petitioner argued affirmative defense provisions identified on the Petition as proposed in the SNPR that ‘‘[e]xemptions that may be granted by the Petitioner, on a basis that those concerning affirmative defense by the state do not comply with the comments are no longer relevant if the provisions in SIPs, it is doing so based enforcement scheme of title I of the Act EPA finalizes its action as proposed in on evaluation of the comments that are because they undermine enforcement by the SNPR. According to the commenter, relevant to the SNPR. the EPA under section 113 of the Act or the EPA’s interpretation of the CAA has V. Generally Applicable Aspects of the by citizens under section 304.’’ not changed so as to exclude the other Final Action in Response to Request for The Petitioner explained that all such SSM provisions in the proposed action, the EPA’s Review of Specific Existing exemptions are fundamentally at odds and this alone shows that the comments SIP Provisions for Consistency With with the requirements of the CAA and submitted on the February 2013 CAA Requirements with the EPA’s longstanding proposal are still relevant. interpretation of the CAA with respect Response: The EPA’s proposed action A. What the Petitioner Requested to excess emissions in SIPs. SIPs are on the Petition in the SNPR superseded The Petitioner’s second request was required to include emission limitations the February 2013 proposal with respect for the EPA to find as a general matter designed to provide for the attainment to the issues related to affirmative that SIPs ‘‘containing an SSM and maintenance of the NAAQS and for defense provisions in SIPs. As exemption or a provision that could be protection of PSD increments. The explained in detail in the SNPR, after interpreted to affect EPA or citizen Petitioner emphasized that the CAA the February 2013 proposal, a federal enforcement are substantially requires that such emission limitations court ruled that the CAA precludes inadequate to comply with the be ‘‘continuous’’ and that they be authority of the EPA to create requirements of the Clean Air Act.’’ 65 In established at levels that achieve affirmative defense provisions addition, the Petitioner requested that if sufficient emissions control to meet the applicable to private civil suits in its the EPA finds such defects in existing required CAA objectives when adhered own regulations. As a result, the EPA issued the SNPR to propose applying a 65 Petition at 14. 66 Id.

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to by sources. Instead, the Petitioner assure that sources comply with CAA certain that it provides comprehensive contended, exemptions for excess requirements, and such interference is and up-to-date guidance to air agencies emissions through ‘‘loopholes’’ in SIP contrary to the fundamental concerning SIP provisions to address provisions often result in real-world enforcement structure provided in CAA emissions during SSM events, emissions that are far higher than the sections 113 and 304. consistent with CAA requirements. level of emissions envisioned and Accordingly, the EPA evaluated each With respect to automatic exemptions planned for in the SIP. of the specific SIP provisions that the from emission limitations in SIPs, the Second, the Petitioner expressed Petitioner identified to determine EPA’s longstanding interpretation of the concern that many SIPs have provisions whether it is consistent with CAA CAA is that such exemptions are that may have been intended to govern requirements for SIP provisions. The impermissible because they are only the exercise of enforcement EPA conducted this evaluation in light inconsistent with the fundamental discretion by the state’s own personnel of its interpretations of the CAA requirements of the CAA. The EPA has but are worded in a way that could be reflected in the SSM Policy and recent reiterated this point in numerous construed to preclude enforcement by court decisions pertaining to relevant guidance documents and rulemaking the EPA or citizens if the state elects not issues. In section IX of the February actions and is reaffirming that to enforce against the violation. The 2013 proposal, the EPA provided its interpretation in this final action. By Petitioner contended that ‘‘any SIP proposed view with respect to each of exempting emissions that would provision that purports to vest the these SIP provisions. The EPA solicited otherwise constitute violations of the determination of whether or not a comment on its proposed grant or denial applicable emission limitations, such violation of the SIP has occurred with of the Petition for each of the specific exemptions interfere with the primary the state enforcement authority is SIP provisions and its rationale for the air quality objectives of the CAA (e.g., inconsistent with the enforcement proposed action. Through consideration attainment and maintenance of the provisions of the Act.’’ of the overarching issues raised by the NAAQS), undermine the enforcement After articulating these overarching Petition, and informed by the evaluation structure of the CAA (e.g., the concerns with existing SIP provisions, of the specific SIP provisions identified requirement that all SIP provisions be the Petitioner requested that the EPA in the Petition as a group, the EPA also legally and practically enforceable by evaluate specific SIP provisions determined that it was necessary to states, the EPA and parties with identified in the separate section of the reiterate, clarify and amend its SSM standing under the citizen suit Petition titled, ‘‘Analysis of Individual Policy. The EPA thus took comment on provision), and eliminate the incentive States’ SSM Provisions.’’ 67 In that its interpretations of the CAA set forth for emission sources to comply at all section, the Petitioner identified specific in the SSM Policy in order to assure that times, not solely during normal provisions in the SIPs of 39 states that it provides comprehensive and up-to- operation (e.g., incentives to be properly the Petitioner believed to be date guidance to states concerning SIP designed, maintained and operated so as inconsistent with the requirements of provisions applicable to emissions from to minimize emissions of air pollutants the CAA and explained in detail the sources during SSM events. during startup and shutdown or to take basis for that belief. In the conclusion C. What Is Being Finalized in This prompt steps to rectify malfunctions). The court’s decision in Sierra Club v. section of the Petition, the Petitioner Action listed the SIP provisions in each state Johnson concerning exemptions for for which it seeks a specific remedy. A The EPA is taking final action to deny SSM events in the EPA’s own more detailed explanation of the in part and to grant in part the Petition regulations has reemphasized the fact Petitioner’s arguments appears in the with respect to the request to find that emission limitations under the CAA 2013 February proposal.68 specific SIP provisions inconsistent are required to be continuous. The court with the CAA as interpreted by the held that this statutory requirement B. What the EPA Proposed Agency in the SSM Policy. The EPA is precludes emission limitations that In its February 2013 proposal, the also taking final action to grant the would allow periods during which EPA proposed to deny in part and to Petition on the request to make a finding emissions are exempt. Moreover, from a grant in part the Petition with respect to of substantial inadequacy and to issue a policy perspective, the EPA notes that this two-part request. The EPA SIP call for specific existing SIP the existence of impermissible explained its longstanding provisions. The basis for the SIP call is exemptions in SIP provisions has the interpretations of the CAA with respect that these provisions include an potential to lessen the incentive for to SIP provisions that apply to excess automatic exemption, a discretionary development of control strategies that emissions during SSM events. The EPA exemption, an inappropriate are effective at reducing emissions also agreed that automatic exemptions, enforcement discretion provision, an during certain modes of source discretionary exemptions via director’s affirmative defense provision, or other operation such as startup and discretion, ambiguous enforcement form of provision that is inconsistent shutdown, even while such strategies discretion provisions that may be read with CAA requirements for SIP could become increasingly helpful for to preclude EPA or citizen enforcement provisions. For those SIP provisions that various purposes, including attaining and affirmative defense provisions can the EPA has determined to be consistent and maintaining the NAAQS. The issue interfere with the overarching objectives with CAA requirements, however, the of automatic exemptions for SSM events of the CAA, such as attaining and Agency is taking final action to deny the in SIP provisions is discussed in more maintaining the NAAQS, protecting Petition and taking no further action detail in section VII.A of this document. PSD increments and improving with respect to those provisions. The With respect to discretionary visibility. Such provisions in SIPs can specific SIP provisions at issue are exemptions from emission limitations in interfere with effective enforcement by discussed in detail in section IX of this SIPs, the EPA also has a longstanding air agencies, the EPA and the public to document. interpretation of the CAA that prohibits As a result of its review of the issues ‘‘director’s discretion’’ provisions in 67 Petition at 17. raised by the Petition, the EPA is also SIPs if they provide unbounded 68 See February 2013 proposal, 78 FR 12459 at through this action clarifying, reiterating discretion to allow what would amount 12473–74 (February 22, 2013). and updating its SSM Policy to make to a case-specific revision of the SIP

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without meeting the statutory specific SIP provisions identified in the aggressive deadline schedule stem requirements of the CAA for SIP Petition. In many instances, the EPA has from’’ a settlement of litigation brought revisions. In particular, the EPA concluded that the Petitioner’s analysis by Sierra Club to respond to the interprets the CAA to preclude SIP is correct and that the provision in Petition. provisions that provide director’s question is inconsistent with CAA Some commenters expressed concern discretion authority to create requirements for SIPs. For those SIP that the EPA’s proposed action was discretionary exemptions for violations provisions, the EPA is granting the made in response to a settlement when the CAA would not allow such Petition and is simultaneously making a agreement, through a process that, the exemptions in the first instance. As with finding of substantial inadequacy and commenters alleged, did not permit any automatic exemptions for excess issuing a SIP call to the affected state to opportunity for participation by affected emissions during SSM events, rectify the specific SIP inadequacy. In parties. Other commenters, believing discretionary exemptions for such other instances, however, the EPA that the EPA’s proposed action was emissions interfere with the primary air disagrees with the Petitioner’s analysis taken to fulfill a consent decree quality objectives of the CAA, of the provision, in some instances obligation, argued that consent decree undermine the enforcement structure of because the analysis applied to deadlines ‘‘often do not allow EPA the CAA and eliminate the incentive for provisions that have since been enough time to write quality emission sources to minimize emissions corrected in the SIP. For those regulations’’ or would not allow of air pollutants at all times, not solely provisions, the EPA is therefore denying ‘‘opportunity to properly research and during normal operations. Through this the Petition and taking no further investigate the effect of State SSM action, the EPA is reiterating its action. In summary, the EPA is granting provisions or the State’s ability to meet interpretation of the provisions of the the Petition in part, and denying the the NAAQS, or to determine whether CAA that preclude unbounded Petition in part, with respect to all of the the SSM provisions are somehow director’s discretion provisions in SIPs. specific existing SIP provisions for inconsistent with the CAA.’’ The The EPA is also explaining two ways in which the Petitioner requested a commenters alleged that the process which air agencies may elect to correct remedy. The EPA’s evaluation of each of ‘‘bypasses the traditional rulemaking a director’s discretion type of the provisions identified in the Petition concepts of transparency and effective deficiency. The issue of director’s and the basis for the final action with public participation’’ and ‘‘sidesteps the discretion in SIP provisions applicable respect to each provision is explained in proper rulemaking channels and to SSM events is discussed in more detail in section IX of this document. undercuts meaningful opportunities for detail in section VII.C of this document. those affected by the proposed rule to With respect to enforcement D. Response to Comments Concerning develop and present evidence that discretion provisions in SIPs, the EPA the CAA Requirements for SIP would support a competing and fully also has a longstanding interpretation of Provisions Applicable to SSM Events informed viewpoint on the substantive the CAA that SIPs may contain such The EPA received numerous issues during the rulemaking process.’’ provisions concerning the exercise of comments, both supportive and adverse, Response: The EPA believes that these discretion by the air agency’s own concerning the Agency’s decision to comments reflect fundamental personnel, but such provisions cannot propose action on the Petition with misunderstandings about this action. bar enforcement by the EPA or by other respect to the overarching issues raised This is a rulemaking in which the EPA parties through a citizen suit.69 In the by the Petitioner. A number of these is taking action to respond to a petition event such a SIP provision could be comments also raised important issues for rulemaking, and it has undergone a construed by a court to preclude EPA or concerning the rights of citizens to full notice-and-comment rulemaking citizen enforcement, that provision petition their government, the process process as provided for in the CAA. In would be at odds with fundamental by which the EPA evaluated the issues the February 2013 proposal, the EPA requirements of the CAA pertaining to raised in the Petition and the relative proposed to take action on the Petition. enforcement. Such provisions in SIPs authorities and responsibilities of states Under the CAA, the APA and the U.S. can interfere with effective enforcement and the EPA under the CAA. Many Constitution, citizens have the right to by the EPA and the public to assure that commenters raised the same conceptual petition the government for redress. For sources comply with CAA requirements, issues and arguments. For clarity and example, the APA provides that ‘‘[e]ach and this interference is contrary to the ease of discussion, the EPA is agency shall give an interested person fundamental enforcement structure responding to these overarching the right to petition for the issuance, provided in CAA sections 113 and 304. comments, grouped by topic, in this amendment, or repeal of a rule.’’ 70 The issue of enforcement discretion in section of this document. The responses When citizens file a petition for SIP provisions applicable to SSM events to more specific substantive issues rulemaking, they are entitled to a is discussed in more detail in section raised by commenters on the EPA’s response to such petition—whether that VII.D of this document. interpretation of the CAA in the SSM response is to grant the petition, to deny The EPA has evaluated the concerns Policy appear in other sections of this the petition, or to partially grant and expressed by the Petitioner with respect document that focus on particular partially deny the petition as has to each of the identified SIP provisions aspects of this action. occurred in this rulemaking action. and has considered the specific remedy 1. Comments that the EPA should not Some of these commenters expressed sought by the Petitioner. Through have responded to the petition for concern that the EPA’s action on the evaluation of comments on the February rulemaking or that the EPA was wrong Petition was the result of the Agency’s 2013 proposal and the SNPR, the EPA to do so. obligations under a consent decree or has taken into account the perspective Comment: Some commenters opposed settlement agreement and that this fact of other stakeholders concerning the the EPA’s proposed action on the in some way invalidates the substantive proper application of the CAA and the Petition in the February 2013 proposal action. First, the EPA notes that the Agency’s preliminary evaluation of the entirely and alleged that it is ‘‘sue-and- action was undertaken not in response settle rulemaking’’ or ‘‘regulation by to a consent decree but rather in 69 See, e.g., 1983 SSM Guidance at Attachment litigation.’’ Commenters stated that the p. 2. ‘‘proposed rule and corresponding 70 5 U.S.C. 553(e).

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response to a settlement agreement. requirements of the CAA. In response to groups, and many thousands of Second, the EPA notes that this requests, the EPA extended the public comments from individual commenters. settlement agreement was entered into comment period for this proposal to 2. Comments that EPA’s action on the by the Agency and the Sierra Club in May 13, 2013, which is 80 days from the Petition violates ‘‘cooperative order to resolve allegations that the EPA date the proposed rulemaking was federalism.’’ was not correctly evaluating and acting published in the Federal Register and upon SIP submissions from states. In 89 days from the date the proposed Comment: Many commenters asserted particular, the Sierra Club claimed that rulemaking was posted on the EPA’s that the EPA’s proposed action on the the EPA was illegally ignoring existing Web site.73 The EPA deemed this Petition and the issuance of this SIP call deficiencies in the SIPs of many states, extension appropriate because of the violate principles of cooperative including existing allegedly deficient issues raised in the February 2013 federalism because they impermissibly provisions concerning the treatment of proposal. The EPA also held a public substitute the EPA’s judgment for that of excess emissions during SSM events, hearing on March 12, 2013. In response the states in the development of SIPs. when acting on certain SIP submissions. to this proposed action, the EPA This argument was raised by both air As a result, the Sierra Club alleged, the received approximately 69,000 public agency and industry commenters. EPA was acting in contravention of its comments, including over 50 comment These commenters described the obligations under the CAA and various letters from state and local governments, relationship between states and the EPA consent decrees and thus should be held over 150 comment letters from industry with respect to SIPs in general. The in contempt for failure to address these commenters, over 25 comment letters commenters stated that Congress issues. In order to resolve these from public interest groups and many designed the CAA as a regulatory allegations, the EPA agreed only to take thousands of comments from individual partnership between the EPA and the action on a petition for rulemaking and commenters. Many of these comment states, i.e., a relationship based on to take the action that it deemed letters were substantial and covered ‘‘cooperative federalism.’’ Under appropriate after evaluation of the numerous issues. cooperative federalism, the commenters allegations in the petition. The terms of Similarly, when the EPA ascertained noted, the EPA has the primary the settlement agreement underwent that it was necessary to revise its responsibility to identify air pollutants public comment and are a matter of proposed action on the Petition with that endanger the public health and public record and are in the docket for respect to affirmative defenses in SIP welfare and to set national standards for this rulemaking.71 provisions, the Agency issued the those pollutants. By contrast, the states The EPA does not enter into SNPR. In that supplemental proposal, in have primary responsibility to settlement agreements lightly, nor does September 2014, the EPA fully determine how to achieve those national the EPA enter into settlement explained the issues and took comment standards by developing federally agreements without following the full on the questions related to whether enforceable measures through SIPs. public process required by CAA section affirmative defense provisions are According to these commenters, 113(g), which the Agency followed in consistent with CAA requirements however, once a state has made a SIP 72 this case. The EPA solicited comment concerning the jurisdiction of courts in submission, the EPA’s role is relegated on the draft settlement agreement as enforcement actions, and thus whether exclusively to the ministerial function required by section 113(g). In no case such provisions are consistent with of reviewing whether the SIP does the EPA enter into a settlement fundamental CAA requirements for SIP submission will result in compliance agreement that has not been officially provisions. The EPA provided a public with the NAAQS. Similarly, the reviewed not only by the Agency but comment period ending November 6, commenters claim that when EPA is also by the Department of Justice. Thus, 2014, which is 50 days from the date the evaluating in the context of a SIP call contrary to the commenters’ SNPR was published in the Federal whether a state’s existing SIP continues implications, this rulemaking is the Register and 62 days from the date the to meet applicable CAA requirements, result of an appropriate settlement SNPR was posted on the EPA’s Web the only relevant question is whether agreement that did undergo public site. The EPA believes that the comment the existing SIP will result in comment and is legitimate. period was sufficient given that the compliance with the NAAQS. Thus, the In acting on the Petition the EPA has subject of the SNPR was limited to the commenters claimed that by finding followed all steps of a notice-and- narrow issue of whether affirmative certain existing SIP provisions comment rulemaking, as governed by defense provisions are consistent with substantially inadequate because they applicable statutes, regulations and CAA requirements. The EPA also held are legally deficient to meet CAA executive orders, including a robust a public hearing on the SNPR on requirements for SIP provisions, the process for public participation. When October 7, 2014 on the specific topic of EPA is usurping state authority under the EPA initially proposed to take action the legitimacy of affirmative defense the cooperative-federalism structure of on the Petition, in February 2013, it provisions in SIPs. In response to the the CAA. simultaneously solicited public SNPR, the EPA received over 20,000 To support this view, many comment on all aspects of its proposed public comments, including at least 9 commenters cited to the ‘‘Train-Virginia response to the issues in the Petition comment letters from states and local line of cases,’’ named for the U.S. and in particular on its proposed action governments, over 40 comment letters Supreme Court case Train v. Natural with respect to each of the specific from industry commenters, at least 6 Resources Defense Council, Inc.,74 existing SIP provisions identified by the comment letters from public interest and Petitioner as inconsistent with the to the D.C. Circuit case Virginia v. 75 73 See ‘‘State Implementation Plans: Response to EPA. The D.C. Circuit has described 71 See Settlement Agreement executed November Petition for Rulemaking; Findings of Substantial these cases as defining a ‘‘federalism 30, 2011, in the rulemaking docket at EPA–HQ– Inadequacy; and SIP Calls To Amend Provisions bar’’ that constrains the EPA’s authority OAR–2012–0322–0039. Applying to Excess Emissions During Periods of with respect to evaluation of state SIPs 72 See ‘‘Proposed Settlement Agreement, Clean Startup, Shutdown, and Malfunction; Notice of Air Act Citizen Suit’’ (notice of proposed settlement extension of public comment period,’’ 78 FR 20855 agreement; request for public comment), 76 FR (April 8, 2013), in the rulemaking docket at EPA– 74 421 U.S. 60 (1975). 54465 (September 1, 2011). HQ–OAR–2012–0322–0126. 75 108 F.3d 1397 (D.C. Cir. 1997).

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under section 110.76 Many commenters mandatory ‘‘shall’’ in section 110(a)(2), The Train-Virginia line of cases asserted that this federalism bar limits Congress established a framework of affirms the plain language of the Act— the EPA’s oversight of state SIPs mandatory requirements within which that in addition to providing generally exclusively to whether a SIP will result states may exercise their otherwise for attainment and maintenance of the in compliance with the NAAQS. The considerable discretion to design SIPs to NAAQS, all state SIPs must satisfy the commenters evidently construe provide for attainment and maintenance specific elements outlined in section ‘‘compliance with the NAAQS’’ very of the NAAQS and to meet other CAA 110(a)(2). Even setting aside that Train narrowly to mean the SIP will factually requirements. In other sections of the predated substantive revisions to the result in attainment of the NAAQS, Act, Congress also imposed additional, CAA that strengthened section regardless of whether the SIP provisions more specific SIP requirements (e.g., the 110(a)(2)(A) in ways relevant here,82 the in fact meet all applicable CAA requirement in section 189 that states Train Court clearly stated that section requirements (e.g., the requirement that impose RACM-level emission 110(a)(2) imposes additional the SIP emission limitations be limitations on sources located in PM2.5 requirements for state submissions to be continuous and enforceable). nonattainment areas). accepted, independent of the general Accordingly, most of these commenters In particular, this SIP call action obligation to meet the NAAQS. Many selectively quoted or cited a passage in commenters on the February 2013 77 concerns whether SIP provisions satisfy Train, and similar passages in circuit section 110(a)(2)(A), which requires that proposal selectively quoted or cited court opinions following Train, for the each SIP ‘‘[shall] include enforceable only portions of the following excerpt proposition that the EPA cannot issue a emission limitations and other control from Train, omitting or ignoring the SIP call addressing the SIP provisions at measures, means, or techniques portions emphasized here: issue in this SIP call action. Some of (including economic incentives such as these commenters asserted that if the The Agency is plainly charged by the Act fees, marketable permits, and auctions with the responsibility for setting the EPA were to finalize this action, the of emissions rights), as well as national ambient air standards. Just as states would have ‘‘nothing left’’ of their schedules and timetables for plainly, however, it is relegated by the Act discretion in SIP development and compliance, as may be necessary or to a secondary role in the process of implementation in the future. determining and enforcing the specific, Response: The EPA agrees that the appropriate to meet the applicable requirements of this chapter.’’ source-by-source emission limitations which CAA establishes a framework for state- are necessary if the national standards it has federal partnership based on As explained in the February 2013 set are to be met. Under § 110(a)(2), the cooperative federalism. The EPA does proposal, the automatic and Agency is required to approve a state plan not, however, agree with the discretionary exemptions for emissions which provides for the timely attainment and commenters’ characterization of that from sources during SSM events at issue subsequent maintenance of ambient air relationship. The EPA explained its in this action fail to meet this most basic standards, and which also satisfies that view of the cooperative-federalism SIP requirement and are also section’s other general requirements. The Act structure in the February 2013 proposal, inconsistent with the enforcement gives the Agency no authority to question the especially the fact that under this requirements of the CAA. Similarly, the wisdom of a State’s choices of emission enforcement discretion provisions at limitations if they are part of a plan which principle both states and the EPA have satisfies the standards of § 110(a)(2) .... authorities and responsibilities with issue in this action that have the effect Thus [i.e., provided the state plan satisfies respect to implementing the of barring enforcement by EPA or the basic requirements of § 110(a)(2)], so long requirements of the CAA.78 The EPA citizens fail to meet this requirement for as the ultimate effect of a State’s choice of believes that the commenters enforceable emission limitations by emission limitations is compliance with the fundamentally misunderstand or interfering with the enforcement national standards for ambient air, the State inaccurately describe this action, as well structure of the CAA as established by is at liberty to adopt whatever mix of as the ‘‘‘division of responsibilities’ Congress. The affirmative defense emission limitations it deems best suited to between the states and the federal provisions at issue are similarly its particular situation.83 government’’ in section 110 that is inconsistent with the requirement that described in the Train-Virginia line of SIPs provide for enforcement of the the NAAQS, as well as to meet other objectives cases.79 NAAQS and also contravene the such as protection of PSD increments and visibility. In CAA section 110(a)(1), Congress 82 For example, to the extent the Train Court was statutory jurisdiction of courts to construing section 110(a)(2)’s emission limitation imposed the duty upon all states to have determine liability and to impose provision, it is important to note that while that a SIP that provides for ‘‘the remedies for violations of SIP statutory section before the Train Court required implementation, maintenance, and requirements. Each of these types of approvable SIPs to include certain controls enforcement’’ of the NAAQS. In section ‘‘necessary to insure compliance with [the] primary deficient SIP provisions is thus or secondary standards’’ (i.e., the NAAQS), see CAA 110(a)(2), Congress clearly set forth the inconsistent with legal requirements of of 1970, Pub. L. 91–604, section 4(a), 84 Stat. 1676, basic SIP requirements that ‘‘[e]ach such the CAA for SIP provisions. Contrary to 1680 (December 31, 1970), that section now more plan shall’’ satisfy.80 By using the the claims of many commenters, the broadly speaks of controls ‘‘necessary or appropriate to meet the applicable requirements of EPA has authority and responsibility to this chapter’’ (i.e., the CAA). Section 110(a)(2)(A) 76 See, e.g., Michigan v. EPA, 213 F.3d 663, 687 assure that a state’s SIP provisions in (emphasis added). Among the other relevant textual (D.C. Cir. 2000). fact comply with fundamental legal changes are the qualification that emission 77 See 421 U.S. at 79. requirements of the CAA as part of the limitations and other controls be ‘‘enforceable,’’ id.; 78 See 78 FR 12459 at 12468; Background a statutory definition of ‘‘emission limitation’’ that Memorandum at 1–3. obligation to ensure that SIPs protect the adds requirements not contemplated by Train, 81 79 See Virginia v. EPA, 108 F.3d 1397, 1407 (D.C. NAAQS. compare Section 302(k), with Train, 421 U.S. at 78; Cir. 1997) (quoting Train, 421 U.S. at 79). as well as a recharacterization of section 110(a)(2)’s 80 Section 110(a)(2) (emphasis added); see EPA v. 81 The EPA notes that many of the specific SIP emission limitation requirement from one bearing EME Homer City Generation, L.P., 134 S. Ct. 1584, elements required in section 110(a)(2) are not on whether ‘‘[t]he Administrator shall approve such 1600 (2014) (holding that section 110(a)(2) ‘‘speaks themselves stated in terms of attainment and plan,’’ see Pub. L. 91–604, section 4(a), 84 Stat. at without reservation’’ regarding what ‘‘components’’ maintenance of the NAAQS. Instead, these 1680, to a requirement expressly directed at what a SIP ‘‘ ‘shall’ include’’); H. Rept. 101–490, at 217 requirements are part of the SIP structure that ‘‘[e]ach plan shall’’ include. (calling the provisions of section 110(a)(2)(A) Congress deemed necessary to support 83 421 U.S. at 79 (emphasis added) (footnotes through (M) ‘‘the basic requirements of SIPs’’). implementation, maintenance and enforcement of omitted).

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When read in its entirety, without obligations with respect to evaluating touchstone for identifying the division omitting the portions italicized above, SIPs under sections 110(k)(3), 110(l) and of responsibility between the EPA and Train clearly does not stand for the 193 continue to provide this authority the states is the text of section 110(a)(2) proposition that SIPs must be judged and responsibility today. itself.92 Although this SIP call involves exclusively on the basis of whether they After Train, one of the cases most different requirements of section will ensure attainment and maintenance frequently cited by commenters for its 110(a)(2) than the one at issue in EME of the NAAQS. To the contrary, the discussion of cooperative federalism Homer City—there, the interstate Court made clear that approvable SIP was the D.C. Circuit’s decision in EME transport obligations of submissions must not only provide for Homer City Generation, L.P. v. EPA, a 110(a)(2)(D)(i)(I)—the Court expressly attainment and maintenance of the case since overturned by the U.S. held that ‘‘[n]othing in the Act NAAQS but must also satisfy section Supreme Court.88 In that case arising differentiates the Good Neighbor 110(a)(2)’s ‘‘other general requirements under section 110(a)(2), the D.C. Circuit Provision from the several other matters ....’’84 Furthermore, while states vacated the EPA’s Cross-State Air a State must address in its SIP.’’ 93 After have great latitude to select emission Pollution Rule for two reasons, one the U.S. Supreme Court’s ruling, the limitations, Train explained that those being related to statutory interpretation EPA’s role under section 110’s emission limitations must nevertheless of section 110(a)(2)(D)(i), the other being cooperative-federalism framework—as be ‘‘part of a plan which satisfies the ‘‘a second, entirely independent the agency charged with reasonably standards of § 110(a)(2) ....’’85 problem’’ based on the EPA’s purported interpreting the fundamental Finally, the EPA notes that many overstep of the federalism bar identified requirements of section 110(a)(2), and commenters quoting the final sentence in the Train-Virginia line of cases.89 applying those reasonably interpreted excerpted above typically excluded the After recounting a list of decisions that requirements to state SIPs—cannot word ‘‘Thus,’’ which references the recognize the cooperative-federalism reasonably be in doubt.94 preceding sentence stating that SIPs structure of the CAA, the D.C. Circuit The touchstone of the cooperative- must ‘‘satisfy [section 110(a)(2)]’s other concluded that even though states have federalism concept outlined in the general requirements.’’ 86 By omitting the ‘‘primary responsibility’’ for Train-Virginia line of cases is that, the word ‘‘thus,’’ and the passages implementing the NAAQS, in this case under the authority of section 110, the concerning the obligation of states to the states had no responsibility to EPA may not legally or functionally comply with section 110(a)(2) and other address interstate transport until the require a state to adopt a specific control obligations of the CAA, the commenters EPA first quantified the obligations of measure in its SIP in response to a SIP 95 disregard the critical point that the EPA the states. The dissent described the call. On this point, the DC Circuit’s has the statutory responsibility to assure majority’s application of the Train- opinion in EME Homer City was largely that state SIPs meet the specific Virginia cases as ‘‘a redesign of in line with Train, Virginia, and other requirements of the CAA, not merely Congress’s vision of cooperative DC Circuit cases. In that decision, the that they provide for attainment of the federalism in implementing the CAA court described the Train-Virginia NAAQS regardless of whether they meet ....’’90 The commenters approvingly federalism bar as prohibiting the EPA other mandatory legal requirements.87 ‘‘from using the SIP process to adopt cited to the D.C. Circuit’s EME Homer 96 In short, the Train Court did not hold City decision, evidently to illustrate the specific control measures.’’ The EME that SIPs must merely provide for importance of states’ role under section Homer City court did not more broadly attainment of the NAAQS even under 110. That states are given the first hold that section 110(a)(2) imposes no independent limits on state discretion the 1970 Act, much less the text of the opportunity to develop a SIP that CAA applicable today. To the contrary, complies with section 110 is not in 92 Id. at 1600–01. the U.S. Supreme Court indicated that dispute. What is in dispute are the approvable state plans were also 93 Id. at 1601 (citing, inter alia, section 110(a)(2)). authority and the responsibility of the 94 required to meet other legal See id. at 1593 (citing Chevron, U.S.A., Inc. v. EPA to take action when states fail to Natural Res. Def. Council, Inc., 467 U.S. 837 specifications of the CAA for SIPs such comply with all of the requirements for (1984)). See, e.g., Oklahoma v. EPA, 723 F.3d 1201, as those in section 110(a)(2) and that the SIP provisions under the CAA, whether 1208 (10th Cir. 2013), cert. denied, 134 S. Ct. 2662 (2014) (applying Chevron to uphold EPA’s EPA’s responsibility is to determine that requirement is to address interstate whether they do so. The EPA’s own disapproval of a SIP for noncompliance with transport or to meet other specific legal regional haze requirements in section 110(a)(2)(J)); requirements of the Act applicable to North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013), 84 See id. (emphasis added). cert. denied, 134 S. Ct. 2662 (2014) (applying 85 See id. The EPA notes that section 110(a)(2) SIP provisions. Chevron to uphold EPA’s disapproval of a SIP for and other sections relevant to SIPs in fact contain The U.S. Supreme Court reversed the noncompliance with interstate visibility numerous procedural and substantive requirements EME Homer City decision in June requirements in section 110(a)(2)(D)(i)(II)); that air agencies must meet. Section 110(a) is not 2014,91 rendering suspect the D.C. Luminant Generation v. EPA, 714 F.3d 841, 856 composed of a single sentence that directs states (5th Cir. 2013), cert. denied, 134 S. Ct. 387 (2013); merely to attain the NAAQS; it is replete with legal Circuit’s interpretation of the Train- Mont. Sulphur & Chem. Co. v. United States EPA, requirements applicable to SIPs that help to assure Virginia line of cases, as well as 666 F.3d 1174, 1180, 1189 (9th Cir. 2012), cert. that a SIP will successfully meet that objective. rendering suspect the commenters’ even denied, 133 S. Ct. 409 (2012) (‘‘The Clean Air Act 86 See id. broader characterization of that gives the EPA significant national oversight over air 87 As a related point, the EPA notes that interpretation as per se authorizing the quality standards, to be exercised pursuant to commenters claiming that the proposed SIP call statutory specifications, and provides EPA with was a violation of cooperative federalism likewise states to create provisions such as the regulatory discretion in key respects relevant to SIP typically did not address the existence or SSM exemptions and affirmative calls and determinations about the attainment of the significance of sections 110(k), 110(l) and 193. All defenses at issue in this SIP call. The NAAQS’’); Mich. Dep’t of Envtl. Quality v. Browner, of these provisions indicate that the EPA has U.S. Supreme Court held that the 230 F.3d 181, 184–85 (6th Cir. 2000) (‘‘Although statutory authority and responsibility to approve or states are given broad authority to design programs, disapprove SIP submissions, based upon whether the EPA has the final authority to determine 88 they meet applicable requirements of the CAA. The 696 F.3d 7, 29 (D.C. Cir. 2012) rev’d, 134 S. Ct. whether a SIP meets the requirements of the EPA fully explained its views concerning its 1584 (2014). CAA.’’). authority and responsibility under these provisions 89 Id. at 28. 95 78 FR 12459 at 12489 & nn.89–90. in the February 2013 proposal. See 78 FR 12459 at 90 Id. at 38 (Rogers, J., dissenting). 96 See EME Homer City Generation, L.P. v. EPA, 12471, 12477–78, 12483–89; Background 91 See EPA v. EME Homer City Generation, L.P., 696 F.3d at 29 (citing Michigan, 213 F.3d at 687; Memorandum at 2–3. 134 S. Ct. 1584 (2014). Virginia, 108 F.3d at 1410) (emphasis added).

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by requiring the states to meet legal Finally, this view is consistent with The EPA emphasizes that this action requirements for SIP provisions, or that Appalachian Power Co. v. EPA, where also allows states ‘‘real choice’’ the EPA is prohibited from either the DC Circuit reiterated that Virginia concerning their SIP provisions, so long interpreting 110(a)(2)’s basic ‘‘disapproved the EPA’s plan to reject as the provisions are consistent with requirements or reviewing state SIPs for SIPs that did not incorporate particular applicable requirements. For example, compliance with those requirements. limits upon emissions from new this SIP call does not establish any Accordingly, the EPA believes that to cars.’’ 101 The specific controls specific, source-by-source limitations. the extent that the DC Circuit’s EME discussed in these cases are quite To the contrary, as described in section Homer City decision is relevant to this different, both as a legal matter and VII.A of this document, emission action, the decision in fact supports the functionally, from the statutory limitations meeting the requirements of basic principle that the EPA has constraints on the states’ exercise of section 110(a)(2)(A) may take a variety authority and responsibility to assure discretion that the EPA is interpreting of forms. Under section 110(a)(2)(A), that states comply with legal and applying in this action.102 states are free to include in their SIPs requirements of the CAA applicable to As explained in the February 2013 whatever emission limitations they SIP provisions. proposal, in this action the EPA is not wish, provided the states comply with This view of what cooperative requiring states to adopt any particular applicable legal requirements. Among federalism prohibits is consistent with emission limitation or to impose a those requirements are that an emission Train, where the U.S. Supreme Court specific control measure in a SIP limitation in a SIP must be an ‘‘emission stated that the EPA ‘‘is relegated by the provision; the EPA is merely directing limitation’’ as defined in section 302(k) [1970] Act to a secondary role in the the states to address the fundamental and that all controls—emission process of determining and enforcing statutory requirements that all SIP limitations and otherwise—must be the specific, source-by-source emission provisions must meet.103 This SIP call sufficiently ‘‘enforceable’’ to ensure limitations which are necessary if the outlines the principles and framework compliance with applicable CAA national standards it has set are to be for how states can revise the existing requirements. The SSM provisions at met.’’ 97 It is also consistent with the deficient SIP provisions to meet a issue in this SIP call subvert both of 104 Virginia decision, where the DC Circuit permissible end goal —compliance these legal requirements. held that the EPA cannot under section with the Act. In so doing, the EPA is 3. Comments that the EPA should 110 functionally require states to merely acting pursuant to its expand the rulemaking to include ‘‘adopt[] particular control measures’’ in supervisory role under the CAA’s additional SIP provisions that the a SIP but must rather ensure that states cooperative-federalism framework, to commenters consider deficient with have a meaningful choice among ensure that SIPs satisfy those broad respect to SSM issues. alternatives.98 Moreover, it is consistent requirements that section 110(a)(2) Comment: Some commenters with the court’s view in Michigan v. mandates SIPs ‘‘shall’’ satisfy. With requested that the EPA expand its EPA,99 a case involving a SIP call, in respect to section 110(a)(2)(A), this February 2013 proposed action to which the DC Circuit interpreted and means that a SIP must at least contain include additional SIP provisions that applied those precedents: legitimate, enforceable emission the commenters consider deficient with limitations to the extent they are respect to SSM issues. Specifically, Given the Train and Virginia precedent, necessary or appropriate ‘‘to meet the commenters identified additional SIP the validity of the NOx budget program applicable requirements’’ of the Act. provisions in Wisconsin (a state not underlying the SIP call depends in part on SIPs cannot contain unbounded whether the program in effect constitutes an identified by the Petitioner) and New EPA-imposed control measure or emission director’s discretion provisions that Hampshire (a state for which the limitation triggering the Train-Virginia functionally subvert the requirements of Petitioner did specifically identify other federalism bar: In other words, on whether the CAA for approval and revision of SIP provisions). the program constitutes an impermissible SIP provisions. Likewise, SIPs cannot One commenter argued that ‘‘[i]t source-specific means rather than a have enforcement discretion provisions would substantially ease the permissible end goal. However, the program’s or affirmative defense provisions that administrative burden on EPA as well validity also depends on whether EPA’s contravene the fundamental on public commenters’’ and ‘‘ensure budgets allow the covered states real choice requirements concerning the that companies in all states are treated with regard to the control measure options enforcement of SIP provisions. equally’’ if the EPA were to include ‘‘all available to them to meet the budget requirements.100 Accordingly, the EPA believes that this SIPs with faulty SSM provisions in [a] SIP call fully accords with the federal- consolidated SIP call.’’ Another Clearly, in this SIP call the EPA is state partnership outlined in section commenter noted that ‘‘the interests of leaving the states the freedom to correct 110, by providing the states meaningful regulatory efficiency will be served’’ by the inappropriate provisions in any latitude when developing SIP adding additional SIP provisions to the manner they wish as long as they submissions, while ‘‘‘nonetheless SIP call because ‘‘all changes required comply with the constraints of section subject[ing] the States to strict minimum by the policy underlying this 110(a)(2). compliances requirements’ and giv[ing] rulemaking’’ to state SIPs would then be EPA the authority to determine a state’s made at once. 97 421 U.S. at 79 (emphasis added). compliance with those Response: The EPA acknowledges the 98 Virginia v. EPA, 108 F.3d 1397, 1415 (D.C. Cir. requirements.’’ 105 requests made by the commenters 1997) (holding that functionally, in that case, ‘‘EPA’s alternative is no alternative at all’’); see also concerning additional SIP provisions Appalachian Power Co. v. EPA, 249 F.3d 1032, 101 249 F.3d 1032, 1047 (D.C. Cir. 2001) (citing that may be inconsistent with CAA 1047 (D.C. Cir. 2001) (citing Virginia, 108 F.3d at Virginia, 108 F.3d at 1410) (emphasis added). 102 1406, 1410) (‘‘We did not suggest [in Virginia] that See id. Cir. 2012), cert. denied, 133 S. Ct. 409 (2012) (‘‘The under § 110 states may develop their plans free of 103 78 FR 12459 at 12489. Clean Air Act gives the EPA significant national extrinsic legal constraints. Indeed, SIP development 104 See, e.g., Michigan, 213 F.3d at 687. oversight power over air quality standards, to be . . . commonly involves decisionmaking subject to 105 Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. exercised pursuant to statutory specifications, and various legal constraints.’’). 2000) (quoting Union Elec. Co. v. EPA, 427 U.S. provides the EPA with regulatory discretion in key 99 213 F.3d 663 (D.C. Cir. 2000). 246, 256–57 (1976)); see Mont. Sulphur & Chem. respects relevant to SIP calls and determinations 100 Id. at 687 (emphasis added). Co. v. United States EPA, 666 F.3d 1174, 1181 (9th about the attainment of NAAQS.’’).

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requirements. The EPA also agrees with The EPA notes that with respect to the The SIP call promulgated by the EPA the points made by the commenters issue of affirmative defenses in SIP in this action applies only to the concerning the potential benefits of provisions, the Agency determined that particular SIP provisions identified in expanding the rulemaking to include it was necessary to amend its February this document, and the scope of the SIP evaluation of additional provisions. 2013 proposal to take into consideration call for each state is limited to those However, in the February 2013 proposal a subsequent court decision concerning provisions. However, if states of their the EPA elected to review the specific the legal basis for such provisions. As own accord wish to revise SIP SIP provisions identified by the explained in the SNPR and also in provisions, beyond those identified in Petitioner in the SIPs of only the 39 section IV of this document, the DC this SIP call, that they believe are states (and jurisdictions) identified by Circuit in the NRDC case decided that inconsistent with the SSM Policy and the Petitioner to determine whether they the CAA precludes any affirmative the CAA, the EPA will review and act were consistent with the CAA as defense provisions that would operate on those SIP revisions in accordance interpreted in the EPA’s SSM Policy as to limit a court’s jurisdiction or with CAA sections 110(k), 110(l) and 106 requested in the Petition. Although discretion to determine the appropriate 193. there may be additional SIP provisions remedy in an enforcement action. Thus, 4. Comments that the EPA should that are deficient, the EPA determined the EPA issued the SNPR to address this create regulatory text in 40 CFR part 51 that it would first focus its review on development in the law. Because of to forbid SSM exemptions in SIP provisions if the CAA precludes them. the SIP provisions for which possible recent EPA actions and court decisions Comment: Commenters argued that deficiencies had already been identified on this subject, the Agency determined 107 the EPA, before issuing a SIP call by the Petitioner. Accordingly, the that it was important to address not only February 2013 proposal addressed only requiring states to revise SIP provisions the affirmative defense provisions those states identified in the Petition, in containing exemptions for emissions identified in the Petition but also order to use EPA and state resources during SSM events, should first have affirmative defense provisions that the most efficiently. promulgated specific regulations With respect to the specific additional EPA independently identified in six articulating that such exemptions are 109 SIP provisions identified by the states’ SIPs. The SNPR was explicitly precluded by the CAA. According to commenters on the February 2013 limited to the narrow concern of commenters, taking this approach proposal, the EPA also notes that it affirmative defense provisions, which would have given states more certainty cannot take final action on any was one of the types of issued and clarity and provided states with additional SSM-related SIP provisions specifically identified by the Petitioner. more time to develop SIP revisions without first providing an opportunity The EPA issued the SNPR with the same consistent with those regulatory for public notice and comment with intention as that with which it issued requirements. Commenters also asserted respect to those additional SIP the February 2013 proposal—so that the that it is not appropriate for the EPA to provisions. The EPA agrees that an final action would provide guidance proceed with a SIP call to states without important objective of its action on the that reflects the EPA’s updated prior rulemaking to create regulatory Petition is to provide complete, interpretation of the CAA and would provisions explicitly prohibiting SSM comprehensive and up-to-date guidance respond to the Petitioner’s request that exemptions in SIPs, given that the to all air agencies concerning SIP ‘‘EPA find that all SIPs containing an Agency has previously approved the SIP provisions that apply to emissions SSM exemption or a provision that provisions at issue. during SSM events. The EPA is could be interpreted to affect EPA or Response: The EPA disagrees with the endeavoring to do this by responding to citizen enforcement are substantially commenters’ argument that the Agency the Petition fully and by updating its inadequate to comply with the must first promulgate regulations to interpretation of the CAA in the SSM requirements of the Clean Air Act and make clear that exemptions for Policy to reflect the relevant statutory issue a call for each of the states with emissions during SSM events are not requirements and recent court such a SIP to revise it in conformity permissible in SIPs, prior to issuing this decisions. All states should feel free to with the requirements of the Act or SIP call. The EPA likewise disagrees apply this revised guidance in otherwise remedy these defective with the implication that its authority to reviewing their own SIP provisions and SIPs.’’ 110 The EPA included these six promulgate a SIP call is restricted only revising them as appropriate. The EPA states’ affirmative defense provisions in to those issues for which there is may address other SSM-related order to provide comprehensive specifically applicable regulatory text, provisions that may be inconsistent guidance to all states concerning as opposed to requirements related to with EPA’s SSM Policy and the CAA in affirmative defense provisions in SIPs statutory provisions, court decisions or a later separate notice-and-comment and to avoid confusion that may arise other legal or factual bases for a action(s). The EPA has authority to due to recent rulemakings and court determination that an existing SIP address those provisions separately.108 decisions relevant to such provisions provision is substantially inadequate to under the CAA. meet CAA requirements. The EPA 106 February 2013 proposal, 78 FR 12459 disagrees with the commenters for (February 22, 2013). 109 several reasons. 107 The SIP provisions for which the EPA Of these six states in which the EPA proposed SIP calls in its February 2013 proposal independently identified affirmative defense First, the CAA does not impose a were further limited to those for which the provisions, two states (California and Texas) were general obligation upon the Agency to Petitioner specifically requested action, with three not identified in the Petition. For another two of promulgate regulations applicable to all these states (New Mexico and Washington), the EPA exceptions; the EPA proposed SIP calls for SIP requirements. Although the EPA has additional SIP provisions in Ohio, North Dakota had already reviewed other affirmative defense and West Virginia (one each), for reasons explained provisions specifically identified in the Petition and elected to promulgate regulations to in section IX of the February 2013 proposal. had already proposed SIP calls in the February 2013 address a broad variety of issues 108 The EPA notes that it has received a separate proposal. For the other two states (South Carolina relevant to SIPs,111 the Agency is not petition for rulemaking requesting it to evaluate SIP and West Virginia), the EPA had already reviewed provisions in the State of Wisconsin. The EPA is and proposed SIP calls for provisions that were obligated to promulgate regulations not taking action on that separate petition as part identified by the Petitioner but that did not include of this action but will take action on that petition affirmative defenses. 111 See, generally, 40 CFR part 51 (including in a future rulemaking. 110 Petition at 14. regulations applicable to many aspects of SIPs.

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unless there is a specific statutory to these issues, prior to issuance of a SIP parties, and the public a meaningful mandate that it do so.112 In addition, the call. opportunity to evaluate and comment EPA has authority under section 301 to Finally, the EPA’s authority under upon the proposed rule.’’ Finally, one promulgate such regulations as it deems section 110(k)(5) is not limited, commenter asserted that Executive necessary to implement the CAA (e.g., expressly or otherwise, solely to Order 13563 requires that ‘‘[b]efore to fill statutory gaps left by Congress for inadequacies related to regulatory issuing a notice of proposed rulemaking, the EPA to fill or to clarify ambiguous requirements. To the contrary, section each agency, where feasible and statutory language). With respect to SIP 110(k)(5) refers broadly to attainment appropriate, shall seek the views of requirements, however, the EPA has and maintenance of the NAAQS, those who are likely to be affected.’’ 115 elected to promulgate regulations or to adequate mitigation of interstate The commenter claimed that because transport and compliance with ‘‘any issue guidance to states to address the EPA allegedly ‘‘failed to seek the requirement of’’ the CAA. In addition, different requirements, as views of those who are likely to be appropriate.113 In short, there is no section 110(k)(5) specifically contemplates situations such as this affected and those who are potentially specific statutory requirement that the subject to such rulemaking, EPA’s EPA promulgate regulations with one, ‘‘whenever’’ the EPA finds previously approved SIP provisions to actions ignore the requirements of the respect to the types of deficiencies in Executive Order.’’ SIP provisions at issue in this action be deficient. Nothing in the CAA prior to issuing a SIP call. requires the EPA to conduct a separate Response: The EPA disagrees that it rulemaking clarifying its interpretation has not provided sufficiently long Second, the EPA has historically of the CAA prior to issuance of this SIP comment periods to address the specific elected to address the key issues call. For the types of deficiencies at issues relevant to this action. As relevant to this SIP call action in issue in this action, the EPA believes described in section IV.D.1 of this guidance. Through a series of guidance that the statutory requirements of the documents, issued in 1982, 1983, 1999 document, the EPA has followed all CAA itself and recent court decisions steps of a notice-and-comment and 2001, the EPA has previously concerning those statutory provisions explained its interpretations of the CAA rulemaking, as governed by applicable provide sufficient basis for this SIP call. statutes, regulations and executive with respect to SIP provisions that For the foregoing reasons, the EPA contain automatic SSM exemptions, orders, including a robust process for disagrees that before requiring states to public participation. When the EPA discretionary SSM exemptions, the revise SIPs that contain provisions with exercise of enforcement discretion for initially proposed to take action on the SSM exemptions, the EPA first must Petition, in February 2013, it SSM events and affirmative defenses for promulgate regulations explicitly stating simultaneously solicited public SSM events. Starting in the 1982 SSM that such exemptions are impermissible comment on all aspects of its proposed Guidance, the EPA explicitly under the CAA. In addition, the EPA response to the issues in the Petition acknowledged that it had previously notes that although it is not approved some SIP provisions related to promulgating generally applicable and in particular on its proposed action emissions during SSM events that it regulations in this action, it is with respect to each of the specific should not have, because the provisions nonetheless revising its guidance in the existing SIP provisions identified by the were inconsistent with requirements for SSM Policy through rulemaking and has Petitioner as inconsistent with the SIPs. In addition, the EPA has in thereby provided states and other requirements of the CAA. In response to rulemakings applied its interpretation of parties the opportunity to comment on requests, the EPA extended the public the CAA with respect to issues such as the Agency’s interpretation of the CAA comment period for this proposal to exemptions for emissions during SSM with respect to this issue. May 13, 2013, which is 80 days from the events, and these actions have been 5. Comments that the EPA did not date the proposed rulemaking was approved by courts.114 Under these provide a sufficiently long comment published in the Federal Register and circumstances, the EPA does not agree period on the proposal in general or as 89 days from the date the proposed that promulgation of generally contemplated in Executive Order 13563. rulemaking was posted on the EPA’s applicable regulations was necessary to Comment: A number of commenters Web site.116 The EPA deemed this put states on notice of the Agency’s argued that the comment period extension appropriate because of the interpretation of the CAA with respect provided by the EPA for the February issues raised in the February 2013 2013 proposal was ‘‘at odds with’’ proposal. The EPA also held a public 112 See, e.g., CAA section 169A(a)(4) (requiring Executive Order 13563. The hearing on March 12, 2013. In response the EPA to promulgate regulations governing the commenters alleged that the comment to this proposed action, the EPA requirements relevant to SIP requirements for period was ‘‘unconscionably short,’’ received approximately 69,000 public purposes of regional haze reduction). even so short as to be ‘‘arbitrary and 113 See, e.g., ‘‘State Implementation Plans; comments, including over 50 comment General Preamble for the Implementation of Title I capricious’’ because, in order to provide letters from state and local governments, of the Clean Air Act Amendments of 1990,’’ 57 FR comments, ‘‘impacted States and over 150 comment letters from industry 13498 (April 16, 1992) (the ‘‘General Preamble’’ that industries must perform the data commenters, over 25 comment letters continues to provide guidance recommendations to collection and analysis necessary to states for certain attainment plan requirements for from public interest groups and many various NAAQS); 40 CFR part 51, subpart Z evaluate the need for the proposed rule thousands of comments from individual (imposing regulatory requirements for certain and its impacts.’’ Further, the commenters. Many of these comment attainment plan requirements for the 1997 PM2.5 commenters alleged, the ‘‘EPA’s failure NAAQS). and refusal to perform any technical 114 See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. 115 See E.O. 13563 section 2(c). analyses of the feasibility of source 116 Cir. 2000) (upholding the ‘‘NOX SIP Call’’ to states See ‘‘State Implementation Plans: Response to requiring revisions to previously approved SIPs operations after the elimination of SSM Petition for Rulemaking; Findings of Substantial with respect to ozone transport and section provisions or the likely capital and Inadequacy; and SIP Calls To Amend Provisions 110(a)(2)(D)(i)(I)); ‘‘Finding of Substantial operating costs of additional control Applying to Excess Emissions During Periods of Inadequacy of Implementation Plan; Call for Utah Startup, Shutdown, and Malfunction; Notice of State Implementation Plan Revision,’’ 74 FR 21639 equipment required to meet numeric extension of public comment period,’’ 78 FR 20855 (April 18, 2011) (the EPA issued a SIP call to rectify standards during all operational periods (April 8, 2013), in the rulemaking docket at EPA– SIP provisions dating back to 1980). has denied the States, the affected HQ–OAR–2012–0322–0126.

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letters were substantial and covered found that comment periods of requirements.119 Nor is the EPA numerous issues. significantly shorter length than the 80 directing states to adopt a specific Similarly, when the EPA ascertained days provided here on the February control measure in response to the SIP that it was necessary to revise its 2013 proposal were reasonable in call; the decision as to how to revise the proposed action on the Petition with various circumstances.118 Given the affected SIP provisions in response to respect to affirmative defenses in SIP nature of the issues raised by the the SIP call is left to the states. The provisions, the Agency issued the Petition, the EPA believes that the state’s response to the SIP call will be SNPR. In that supplemental proposal, in comment period was appropriate and developed in future rulemaking actions September 2014, the EPA fully sufficient to allow for full analysis of the at both the state and federal level which explained the issues and took comment issues and preparation of comments. will similarly be subject to full notice- on the questions related to whether The number of comments received on and-comment proceedings. In electing affirmative defense provisions are the February 2013 proposal, and the to proceed by SIP call under section consistent with CAA requirements breadth of issues and level of detail 110(k)(5), rather than by error correction concerning the jurisdiction of courts in provided by the commenters, both under section 110(k)(6), the EPA is enforcement actions, and thus whether supportive and adverse, serve to support providing affected states with the such provisions are consistent with the EPA’s view on this point. maximum time permitted by statute to fundamental CAA requirements for SIP determine how best to revise their SIP The EPA also disagrees with respect provisions. The EPA provided a public provisions, consistent with CAA comment period ending November 6, to the claims of commenters that the requirements. During this process, the 2014, which is 50 days from the date the comment period was insufficient commenters and other stakeholders will SNPR was published in the Federal because the EPA should provide time have the opportunity to participate in Register and 62 days from the date the for commenters to evaluate and analyze the development of the SIP revision, SNPR was posted on the EPA’s Web fully the possible ultimate impacts of including decisions such as how the site. The EPA believes that the comment the SIP call upon particular sources, to state elects to revise the deficient SIP period was sufficient given that the determine what type of SIP revision by provisions (e.g., merely to eliminate an subject of the SNPR was limited to the a state is appropriate in response to a exemption for SSM events or to impose narrow issue of whether affirmative SIP call, or to ascertain what specific an alternative emission limitation defense provisions are consistent with new emission limitation or control applicable to startup and shutdown). CAA requirements. The EPA also held measure requirement states should The questions posed by the a public hearing on the SNPR on impose upon sources in such a future commenters about what specific October 7, 2014 on the specific topic of SIP revision. The EPA’s action on the emission limitations should apply the legitimacy of affirmative defense Petition concerning specific existing SIP during startup and shutdown events, provisions in SIPs. In response to the provisions is focused upon whether what control measures will meet SNPR, the EPA received over 20,000 those existing provisions meet applicable CAA legal requirements, public comments, including at least 9 fundamental legal requirements of the what control measures will be effective comment letters from states and local CAA for SIP provisions. The EPA is not and cost-effective to meet applicable governments, over 40 comment letters required to provide a comment period legal standards and other similar from industry commenters, at least 6 for this action that allows states actually questions are exactly the sorts of issues comment letters from public interest to determine which of the potential that states will evaluate in the process groups, and many thousands of forms of SIP revision they may wish to of revising affected SIP provisions. comments from individual commenters. undertake, or to complete those SIP Moreover, these are the same sorts of Executive Order 13563 provides that revisions, as part of this rulemaking. questions that the EPA will be each agency should ‘‘afford the public a The subsequent state and EPA evaluating when it reviews state SIP meaningful opportunity to comment rulemaking processes on the SIP submissions made in response to the through the Internet on any proposed revisions in response to this SIP call SIP call. The EPA is not required, by regulation, with a comment period that action will provide time for further Executive Order 13563 or otherwise, to should generally be at least 60 days.’’ 117 evaluation of the issues raised by provide a comment period that would The length of the Agency’s comment commenters. allow for all future actions in response period for the original proposed As explained in the February 2013 to the SIP call to occur before issuing rulemaking well-exceeded this standard. proposal, the EPA does not interpret the SIP call. The EPA anticipates that The EPA also facilitated comment on section 110(k)(5) to require it to ‘‘prove the commenters will be able to the action by providing a full and causation’’ concerning what precise participate actively in the actions that detailed evaluation of the relevant impacts illegal SIP provisions are will happen in due course in response issues in the February 2013 proposal, having on CAA requirements, such as to this SIP call. the background memorandum attainment and maintenance of the Finally, the EPA disagrees that it did supporting the proposal and the SNPR. NAAQS and enforcement of SIP not adequately seek the views of When considering whether an agency potentially affected entities prior to has provided for adequate public input, 118 See, e.g., Omnipoint Corp. v. Fed. Commc’ns issuance of the February 2013 proposal. reviewing courts are generally most Comm’n, 78 F.3d 620, 629 (D.C. Cir. 1996) The EPA alerted the public to the concerned with the overall adequacy of (approving a 7-day comment period); Florida Power existence of the Petition by soliciting the opportunity to comment. This, in & Light Co. v. United States, 846 F.2d 765, 772 (D.C. comment on the settlement agreement turn, typically depends on steps the Cir. 1988) (holding a 15-day comment period to not be unreasonable under the governing that obligated the Agency to act upon it, agency took to notify the public of circumstances); Conn. Light & Power Co. v. NRC, in accordance with CAA section 113(g). information that is important to this 673 F.2d 525, 534 (D.C. Cir. 1982) (holding 30 days Subsequently, EPA personnel action. Comment period length is only not unreasonable in the particular situation); Am. communicated about the Petition and one factor that courts consider in this Farm Bureau Fedn v. United States EPA, 984 F.Supp.2d 289, 333 (M.D. Pa. 2013) (holding that the issues it raised in various standing analysis, and courts have regularly a 45-day comment period was adequate despite ‘‘technical complexities of the regulations and 119 This issue is addressed in more detail in 117 See E.O. 13563 section 2(b) (emphasis added). issues raised’’). section VIII.A.1 of this document.

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meetings and conference calls with the CAA across the country. We note comply with existing requirements of states and organizations that represent that in the ATK Launch case cited by the CAA. The EPA’s action, therefore, state and local air regulators. commenters, the U.S. Court of Appeals would leave to states the choice of how 6. Comments that this action is not for the Tenth Circuit (Tenth Circuit) in to revise the SIP provision in question ‘‘nationally applicable’’ for purposes of fact transferred to the D.C. Circuit to make it consistent with CAA judicial review. challenges to the designation of two requirements and of determining, Comment: Commenters alleged that areas in Utah that were part of a among other things, which of several the SSM SIP call is not ‘‘nationally national rulemaking designating areas lawful approaches to the treatment of applicable’’ for purposes of judicial across the U.S. for the PM2.5 NAAQS. In excess emissions during SSM events review. One state commenter cited ATK transferring the challenges to the D.C. will be applied to particular sources. Launch Systems for the proposition that Circuit, the Tenth Circuit noted that the Therefore, the EPA considers the only the specific language of the regulation designations rulemaking ‘‘reached areas direct costs of this rulemaking action to being challenged indicates whether an coast to coast and beyond’’ and that the be those to states associated with action is nationally or locally/regionally EPA had applied a uniform process and preparation and submission of a SIP applicable. Because a SIP provision standard.121 Significantly, in support of revision by those states for which the subject to this SIP call is state-specific, its decision to transfer the challenges to EPA issues a SIP call.123 Examples of the commenter argued, it is of concern the D.C. Circuit, the Tenth Circuit such costs could include development only for that state and thus the SIP call stated: ‘‘The challenge here is more akin of a state rule, conducting notice and is a locally applicable action.120 to challenges to so-called ‘SIP Calls,’ public hearing and other costs incurred Response: The EPA disagrees with the which the Fourth and Fifth Circuits in connection with a SIP submission. commenter that the SIP call is not a have transferred to the D.C. Circuit . . . The EPA notes that it did not consider nationally applicable action. In this Although each of the SIP Call petitions the costs of potential revisions to action, the EPA is responding to a challenged the revision requirement as operating permits for sources to be a Petition that requires the Agency to to a particular state, the SIP Call on its direct cost imposed by this action, reevaluate its interpretations of the CAA face applied the same standard to every because, as stated elsewhere in this in the SSM Policy that apply to SIP state and mandated revisions based on document, the Agency anticipates that provisions for all states across the that standard to states with non- states will elect to delay any necessary nation. In so doing, the EPA is conforming SIPs in multiple regions of revision of permits until the permits reiterating its interpretations with the country.’’ 122 need to be reissued in the ordinary respect to some issues (e.g., that SIP 7. Comments that the EPA was course after revision of the underlying provisions cannot include exemptions obligated to address and justify the SIP provisions. for emissions during SSM events) and potential costs of the action and failed The commenters also incorrectly revising its interpretations with respect to do so correctly. claim that the EPA failed to comply to others (e.g., so that SIP provisions Comment: Several commenters with Executive Order 12291. That cannot include affirmative defenses for alleged that the EPA has failed to Executive Order was explicitly revoked emissions during SSM events). In address the costs associated with this by Executive Order 12866, which was addition to reiterating and updating its rulemaking action appropriately and signed by President Clinton on interpretations with respect to SIP consistent with legal requirements. In September 30, 1993. provisions in general, the EPA is also particular, commenters alleged that the The commenters are likewise applying its interpretations to specific EPA is required to address costs of incorrect that the EPA did not comply existing provisions in the SIPs of 41 various impacts of this SIP call, with Executive Order 12866. This action states. Through this action the EPA is including the costs that may be involved was not deemed ‘‘significant’’ on a basis establishing a national policy that it is in changes to emissions controls or of the cost it will impose as the applying to states across the nation. As operation at sources and the costs to commenters claimed. The EPA has with many nationally applicable states to revise permits and revise SIPs already concluded that this action will rulemakings, it is true that this action in response to the SIP call. not result in a rule that may have an also has local or regional effects in the Commenters also alleged that the EPA annual effect on the economy of $100 sense that EPA is requiring 36 has failed to comply with Executive million or more or adversely affect in a individual states to submit revisions to Order 12291, Executive Order 12866, material way the economy, a sector of their SIPs. However, through this action Executive Order 13211, the Regulatory the economy, productivity, competition, the EPA is applying the same legal and Flexibility Act and the Unfunded jobs, the environment, public health or policy interpretation to each of these Mandates Reform Act. safety, of state, local or tribal states. Thus, the underlying basis for the One commenter supported the EPA’s governments or communities. The EPA SIP call has ‘‘nationwide scope and approach with respect to cost. instead determined that, as noted in effect’’ within the meaning of section Response: The EPA disagrees with both the February 2013 proposal 307(b)(1) as explained by the EPA in the commenters concerning its compliance (section X.A) and the SNPR (section February 2013 proposal. A key purpose with the Executive Orders and statutes VIII.A), this action is a ‘‘significant of the CAA in channeling to the D.C. applicable to agency rulemaking in regulatory action’’ as that term is Circuit challenges to EPA rulemakings general. The EPA maintains that it did defined in Executive Order 12866 that have nationwide scope and effect is properly consider the costs imposed by because it raises novel legal or policy to minimize instances where the same this SIP call action, as required by law. issues. Accordingly, it was on that basis legal and policy basis for decisions may As explained in the February 2013 that the EPA submitted the February be challenged in multiple courts of proposal, to the extent that the EPA is 2013 proposal, the SNPR and the final appeals, which instances would issuing a SIP call to a state under action to the Office of Management and potentially lead to inconsistent judicial section 110(k)(5), the Agency is only Budget (OMB) for review. Changes made holdings and a patchwork application of requiring a state to revise its SIP to 123 See Memorandum, ‘‘Estimate of Potential 120 See ATK Launch Systems, Inc. v. EPA, 651 121 Id., 651 F.3d at 1197. Direct Costs of SSM SIP Calls to Air Agencies,’’ F.3d 1194 (10th Cir. 2011). 122 Id., 651 F.3d at 1199. April 28, 2015, in the rulemaking docket.

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in response to OMB review are legal requirements of the CAA for SIP context. The combined approach allows documented in the docket for this provisions. In response to the SIP call, commenters to participate more action. The EPA believes it has fully the states will determine how best to meaningfully by considering together complied with Executive Order 12866. revise their deficient SIP provisions in the proposed action on the Petition, the As stated in the February 2013 order to meet CAA requirements. It is proposed interpretations of the CAA in proposal, the EPA does not believe this thus the states that will make the the SSM Policy and the proposed is a ‘‘significant energy action’’ as decisions concerning how best to revise application of the EPA’s interpretation defined in Executive Order 13211, their SIP provisions and will determine to specific SIP provisions. By addressing because it is not likely to have a what impacts will ultimately apply to the interrelated actions together and significant adverse effect on the supply, sources as a result of those revisions. comprehensively, the EPA is striving to distribution or use of energy. As 8. Comments that the EPA’s action be efficient with the resources of both described earlier, this action merely violates procedural requirements of the regulators and regulated parties. Most requires that states revise their SIPs to CAA or the APA, because the EPA is importantly, by combining these actions comply with existing requirements of acting on the Petition, updating its SSM the EPA is being responsive to the need the CAA. States have the choice of how Policy and applying its interpretation of for prompt evaluation of the SIP to revise the deficient SIP provisions the CAA to specific SIP provisions in provisions at issue and for correction of that are the subject of this action; there one action. those found to be legally deficient in a Comment: Commenters argued that are a variety of different ways that states timely fashion. Far from ‘‘prejudging’’ the EPA’s proposed action on the may treat the issue of excess emissions the issues, the EPA explicitly sought Petition, which includes simultaneous during SSM events consistent with CAA comment on all aspects of the February updating of its interpretations of the requirements for SIPs. This action 2013 proposal and sought additional CAA in the SSM Policy and application merely prescribes the EPA’s action for comment on issues related to affirmative states regarding their obligations for of those revised interpretations to existing SIP provisions, is in violation of defense provisions in the SNPR. SIPs under the CAA, and therefore it is Naturally, the EPA’s proposal and not a ‘‘significant energy action’’ under procedural requirements of the CAA and the APA. According to the supplemental proposal reflected its best Executive Order 13211. judgments on the proper interpretations With respect to the Regulatory commenters, the EPA’s combination of of the CAA and application of those Flexibility Act (RFA), as the EPA actions is a ‘‘subterfuge’’ to avoid notice interpretations to the issues raised by explained in the February 2013 and comment on the proposed actions the Petition, as of the time of the proposal, courts have interpreted the in the February 2013 proposal. The RFA to require a regulatory flexibility commenters claimed that the EPA could February 2013 proposal and the SNPR. analysis only when small entities will only take these actions through two or VI. Final Action in Response To be subject to the requirements of the more separate rulemaking actions. By Request That the EPA Limit SIP rule.124 This action will not impose any proposing to update its interpretation of Approval to the Text of State requirements on small entities. Instead, the CAA in the SSM Policy through Regulations and Not Rely Upon it merely reiterates the EPA’s notice-and-comment rulemaking and Additional Interpretive Letters From interpretation of the statutory proposing to apply its interpretation of the State requirements of the CAA. To the extent the CAA through notice-and-comment that the EPA is issuing a SIP call to a rulemaking to existing SIP provisions, A. What the Petitioner Requested state under section 110(k)(5), the EPA is the commenters claimed, the EPA has The Petitioner’s third request was that only requiring the state to revise its SIP prejudged the outcome of this action. when the EPA evaluates SIP revisions to comply with existing requirements of Response: The EPA does not agree submitted by a state, the EPA should the CAA. In turn, the state will that it was required to take this action require ‘‘all terms, conditions, determine whether and how to regulate in multiple separate rulemakings as limitations and interpretations of the specific sources, including any small claimed by the commenters. First, the various SSM provisions to be reflected entities, through the process of deciding EPA notes, the fact that the commenters’ in the unambiguous language of the SIPs how to revise a deficient SIP provision. allegation—that the Agency failed to themselves.’’ 125 The Petitioner The EPA’s action itself will not have a proceed by notice and comment—was expressed concern that the EPA has significant economic impact on a raised in a comment letter submitted on previously approved SIP submissions substantial number of small entities. the February 2013 proposal belies the As the EPA explained in the February commenters’ overarching procedural with provisions that ‘‘by their plain 2013 proposal, this action is not subject argument that the EPA is failing to terms’’ do not appear to comply with to the requirements of the Unfunded subject its interpretations of the CAA to the EPA’s interpretation of CAA Mandates Reform Act (UMRA) because notice-and-comment rulemaking. requirements embodied in the SSM it does not contain a federal mandate Second, although the EPA could elect to Policy and has approved those SIP that may result in expenditures of $100 undertake two or more separate notice- submissions in reliance on separate million or more for state, local and tribal and-comment rulemakings in order to ‘‘letters of interpretation’’ from the state governments, in the aggregate, or the answer the Petition, to revise its that construe the provisions of the SIP private sector in any one year. With interpretations of the CAA in the SSM submission itself to be consistent with Policy and to evaluate existing 126 respect to the impacts on sources, the the SSM Policy. Because of this provisions in state SIPs against the EPA’s action in this rulemaking is not reliance on interpretive letters, the requirements of the CAA, there is no directly imposing costs on any sources. Petitioner argued that ‘‘such requirement for the Agency to do so. To The EPA’s action is merely directing constructions are not necessarily the contrary, the EPA believes that it is states to revise their SIPs in order to apparent from the text of the provisions preferable to take these interrelated bring them into compliance with the and their enforceability may be difficult actions in a combined rulemaking and unnecessarily complex and 124 See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. process. This combined approach Cir. 2000); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 allows the EPA to explain its actions 125 Petition at 16. F.2d 327 (D.C. Cir. 1985). comprehensively and in their larger 126 Petition at 14.

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inefficient.’’ 127 The Petitioner cited cases, the lack of clarity may be so provision in a SIP submission.130 In various past rulemaking actions to significant that amending the state’s particular, the EPA considers this an illustrate how EPA approval of regulation may be warranted to appropriate approach where reliance on ambiguous SIP provisions can inject eliminate the potential for confusion or such an interpretive letter allows the air unintended confusion for regulated misunderstanding about applicable legal agency and the EPA to put into place entities, regulators, and the public in the requirements that could interfere with SIP provisions that are necessary to future, especially in the context of compliance or enforcement. Indeed, as meet important CAA objectives and for future enforcement actions. noted by the Petitioner, the EPA has which unnecessary delay would be Accordingly, the Petitioner requested requested that states clarify ambiguous counterproductive. For example, where that the EPA discontinue reliance upon SIP provisions when the EPA has an air agency is adopting emission interpretive letters when approving state subsequently determined that to be limitations for purposes of attaining the SIP submissions, regardless of the necessary.129 NAAQS in an area, a timely letter from the air agency clarifying that an circumstances. A more detailed However, the EPA believes that the enforcement discretion provision is explanation of the Petitioner’s use of interpretive letters to clarify applicable only to air agency arguments appears in the 2013 February ambiguity or perceived ambiguity in the 128 enforcement personnel and has no proposal. provisions in a SIP submission is a bearing on enforcement by the EPA or permissible, and sometimes necessary, B. What the EPA Proposed the public could help to assure that the In the February 2013 proposal, the approach under the CAA. Used provision is approved into the SIP EPA proposed to deny the Petition with correctly, and with adequate promptly and thus allow the area to respect to this issue. The EPA explained documentation in the Federal Register reach attainment more expeditiously the basis for this proposed disapproval and the docket for the underlying than requiring the air agency to in detail, including a discussion of the rulemaking action, reliance on undertake a time-consuming statutory provisions that the Agency interpretive letters can serve a useful administrative process to make a minor interprets to permit this approach, an purpose and still meet the enforceability clarifying change in the regulatory text. explanation of why this approach makes concerns of the Petitioner. So long as There are multiple reasons why the sense from both a practical and an the interpretive letters and the EPA’s EPA does not agree with the Petitioner efficiency perspective under some reliance on them is properly explained with respect to the alleged inadequacy circumstances, and a careful and documented, regulated entities, of using interpretive letters to clarify explanation of the process by which regulators, and the public can readily specific ambiguities in a SIP submission EPA intends to rely on interpretive ascertain the existence of interpretive and the SIP provisions that may letters in order to assure that the letters relied upon in the EPA’s ultimately result from approval of such concerns of the Petitioner with respect approval that would be useful to resolve a submission, provided this process is to potential future disputes about the any perceived ambiguity. By virtue of done correctly. First, under section meaning of SIP provisions should be being part of the stated basis for the 107(a), the CAA gives air agencies both alleviated. EPA’s approval of that provision in a the authority and the primary SIP submission, the interpretive letters responsibility to develop SIPs that meet C. What is being finalized in this action? necessarily establish the correct applicable statutory and regulatory The EPA is taking final action to deny interpretation of any arguably requirements. However, the CAA the Petition on this request. The EPA ambiguous SIP provision. In other generally does not specify exactly how believes that it has statutory authority to words, the rulemaking record should air agencies are to meet the rely on interpretive letters to resolve reflect the shared state and EPA requirements substantively, nor does the ambiguity in a SIP submission under understanding of the meaning of a CAA specify that air agencies must use appropriate circumstances and so long provision at issue at the time of the specific regulatory terminology, as the state and the EPA follow an approval, which can then be referenced phraseology, or format, in provisions appropriate process to assure that the should any question about the provision submitted in a SIP submission. Air rulemaking record properly reflects this arise in a future enforcement action. agencies each have their own reliance. To avoid any In addition, reliance on interpretive requirements and practices with respect misunderstanding about the reasons for letters to address concerns about to rulemaking, making flexibility this denial or any misunderstandings perceived ambiguity can often be the respecting terminology on the EPA’s about the circumstances under which, most efficient and timely way to resolve part appropriate, so long as CAA or the proper process by which, the EPA concerns about the correct meaning of requirements are met. intends to rely interpretive letters, the regulatory provisions. Both air agencies As a prime example relevant to the Agency is repeating its views in this and the EPA are required to follow time- SSM issue, CAA section 110(a)(2)(A) final action in detail. and resource-intensive administrative requires that a state’s SIP shall include As stated in the February 2013 processes in order to develop and ‘‘enforceable emission limitations and proposal, the EPA agrees with the core evaluate SIP submissions. It is other control measures, means, or principle advocated by the Petitioner, reasonable for the EPA to exercise its techniques (including economic i.e., that the language of regulations in discretion to use interpretive letters to incentives such as fees, marketable SIPs that pertain to SSM events should clarify concerns about the meaning of permits, and auctions of emissions be clear and unambiguous. This is regulatory provisions, rather than to rights) as well as schedules and necessary as a legal matter but also as require air agencies to reinitiate a a matter of fairness to all parties, complete administrative process merely 130 CAA section 110(k) directs the EPA to act on including the regulated entities, the to resolve perceived ambiguity in a SIP submissions and to approve those that meet regulators, and the public. In some statutory and regulatory requirements. Implicit in this authority is the discretion, through appropriate 129 See, e.g., ‘‘Finding of Substantial Inadequacy notice-and-comment rulemaking, to determine 127 Petition at 15. of Implementation Plan; Call for Utah State whether a given SIP provision meets such 128 See February 2013 proposal, 78 FR 12459 at Implementation Plan Revision,’’ 76 FR 21639 at requirements, in reliance on the information that 12474 (February 22, 2013). 21648 (April 18, 2011). the EPA considers relevant for this purpose.

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timetables for compliance as may be about ambiguity in the meaning of the resolution of the perceived ambiguity necessary or appropriate to meet the SIP provisions under evaluation. explicitly in the rulemaking record, the applicable requirements of’’ the CAA. Third, careful review of regulatory EPA assured that the correct meaning of Section 302(k) of the CAA further provisions in a SIP submission can that provision should be evident from defines the term ‘‘emission limitation’’ reveal areas of potential ambiguity. It is the record, should any question in important respects but nevertheless essential, however, that regulations are concerning its meaning arise in a future leaves room for variations of approach, sufficiently clear that regulated entities, dispute. stating that it is ‘‘a requirement regulators and the public can all Finally, the EPA notes that while it is established by the State or understand the SIP requirements. Where possible to reflect interpretive letters in Administrator which limits the the EPA perceives ambiguity in draft the Code of Federal Regulations (CFR) quantity, rate, or concentration of SIP submissions, it endeavors to resolve or incorporate them into the regulatory emissions of air pollutants on a those ambiguities through interactions text of the CFR in appropriate continuous basis, including any with the relevant air agency even in circumstances, there is no requirement requirement relating to the operation or advance of the SIP submission. On to do so in all actions, and there are maintenance of a source to assure occasion, however, there may still other ways for the public to have a clear continuous emission reduction, and any remain areas of regulatory ambiguity in understanding of the content of the SIP. design, equipment, work practice or a SIP submission’s provisions that the First, for each SIP, the CFR contains a operational standard promulgated under EPA identifies, either independently or list or table of actions that reflects the [the CAA].’’ as a result of public comments on a various components of the approved Even this most basic requirement of proposed action, for which resolution is SIP, including information concerning SIPs, the inclusion of enforceable both appropriate and necessary as part the submission of, and the EPA’s action ‘‘emission limitations,’’ allows air of the rulemaking action. approving, each component. With this agencies discretion in how to structure In such circumstances, the ambiguity information, interested parties can or word the emission limitations, so may be so significant as to require the readily locate the actual Federal long as the provisions meet fundamental air agency to revise the regulatory text Register document in which the EPA legal requirements of the CAA.131 Thus, in its SIP submission in order to resolve will have explained the basis for its by the explicit terms of the statute and the concern. At other times, however, approval in detail, including any by design, air agencies generally have the EPA may determine that with interpretive letters that may have been considerable discretion in how they adequate explanation from the state, the relied upon to resolve any potential elect to structure or word their state provision is sufficiently clear and ambiguity in the SIP provisions. With regulations submitted to meet CAA complies with applicable CAA and this information, the interested party associated regulatory requirements. In requirements in a SIP. can also locate the docket for the some instances, the air agency may Second, under CAA section 110(k), underlying rulemaking and obtain a supply the explanation necessary to the EPA has both the authority and the copy of the interpretive letter itself. resolve any potential ambiguity in a SIP responsibility to assess whether a SIP Thus, if there is any debate about the submission by sending an official letter submission meets applicable CAA and correct reading of the SIP provision, from the appropriate authority. When regulatory requirements. Given that air either at the time of the EPA’s approval the EPA bases its approval of a SIP agencies have authority and discretion or in the future, it will be possible to submission in reliance on the air ascertain the mutual understanding of to structure or word SIP provisions as agency’s official interpretation of the the air agency and the EPA of the they think most appropriate, so long as provision, that reading is explicitly correct reading of the provision in the SIP provisions meet CAA and incorporated into the EPA’s action and question at the time the EPA approved regulatory requirements, the EPA’s role is memorialized as the proper intended it into the SIP. Most importantly, is to evaluate whether those provisions reading of the provision. In other words, regardless of whether the content of the in fact meet those legal requirements.132 the state and the EPA will have a shared interpretive letter is reflected in the CFR Necessarily, this process entails the understanding of the proper or simply described in the Federal exercise of judgment concerning the interpretation of the provision, and that Register preamble accompanying the specific text of regulations, with regard interpretation will provide the basis for EPA’s approval of the SIP submission, both to content and to clarity. Because the approval of that provision into the this mutual understanding of the correct actions on SIP submissions are subject SIP. The interpretation will also be reading of that provision upon which to notice-and-comment rulemaking, clearly identified and presented for the the EPA relied will be the reading that there is also the opportunity for other public and regulated entities in the governs, should that later become an parties to identify SIP provisions that Federal Register document approving issue. they consider problematic and to bring the SIP submission. The EPA notes that the existence of, to the EPA’s attention any concerns For example, in the Knoxville or content of, an interpretive letter that redesignation action that the Petitioner is part of the basis for the EPA’s 131 The EPA notes that notwithstanding discretion noted in the Petition, the EPA took approval of a SIP submission is in in wording in regulatory provisions, many words careful steps to ensure that the reality analogous to many other things have specific recognized legal meaning whether by statute, regulation, case law, dictionary definition, perceived ambiguity raised by related to that approval. Not everything or common usage. For example, the term commenters was substantively resolved that may be part of the basis for the SIP ‘‘continuous’’ has a specific meaning that must be and fully reflected in the rulemaking approval in the docket—including the complied with substantively, however the state may record, i.e., through inclusion of the proposal or final preambles, the elect to word its regulatory provisions. 132 See, e.g., Luminant Generation v. EPA, 714 interpretive letters in the rulemaking technical support documents, responses F.3d 841 (5th Cir. 2013) (upholding the EPA’s docket, quoting relevant passages from to comments, technical analyses, disapproval in part of affirmative defense provision the letters in the Federal Register, and modeling results, or docket with unclear regulatory text); US Magnesium, LLC carefully evaluating the areas of memoranda—will be restated verbatim, v. EPA, 690 F.3d 1157, 1170 (10th Cir. 2012) (upholding the EPA’s issuance of a SIP call to potential ambiguity in response to incorporated into, or referenced in the clarify a provision that could be interpreted in a public comments on a provision-by- CFR. These background materials way inconsistent with CAA requirements). provision basis. By discussing the remain part of the basis for the SIP

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approval and remain available should allow reliance on interpretive letters to would view such letters as post hoc they be needed in the future for any clarify ambiguities in state SIP interpretations of no probative value. purpose. To the extent that there is any submissions. Another commenter added its view that question about the correct interpretation Comment: A number of state and reliance on interpretive letters is of an ambiguous provision in the future, industry commenters agreed with the appropriate only when affected parties an interested party will be able to access EPA that the use of interpretive letters have the right to comment on the the docket to verify the correct meaning to clarify perceived ambiguity in the interpretive letters and the EPA’s of SIP provisions. provisions in a SIP is a permissible, and proposed use of them during the With regard to the Petitioner’s sometimes necessary, approach to rulemaking in which the EPA relies on concern that either actual or alleged approving SIP submissions under the such letters to resolve ambiguities and ambiguity in a SIP provision could CAA when done correctly. Those before the Agency finally approves the impede an effective enforcement action, commenters who supported the EPA’s SIP revision. the EPA believes that its current process proposed action on the Petition did not Response: As a general matter, the for evaluating SIP submissions and elaborate upon their reasoning, but commenter opposing the EPA’s reliance resolving potential ambiguities, generally supported it as an efficient on interpretive letters in any including the reliance on interpretive and reasonable approach to resolve circumstances because citizens would letters in appropriate circumstances ambiguities. be required ‘‘to sift through’’ the docket with correct documentation in the Response: The EPA agrees with the did not provide specific arguments rulemaking action, minimizes the commenters who expressed support of regarding the EPA’s interpretation of the possibility for any such ambiguity in the the proposal based on practical statute as stated in the February 2013 first instance. To the extent that there considerations such as efficiency. These proposal. Consistent with the EPA’s remains any perceived ambiguity, the commenters did not, however, base interpretation of the CAA, and as EPA concludes that regulated entities, their support for the proposed action on explained earlier in this document, the regulators, the public, and ultimately the EPA’s interpretation of the CAA in EPA agrees with the core principle that the courts, have recourse to use the the February 2013 proposal, nor did the language of regulations in SIPs that administrative record to shed light on they acknowledge the parameters that pertain to SSM events should be clear and resolve any such ambiguity as the EPA itself articulated concerning the and unambiguous. A commenter argued explained earlier in this document. appropriate situations for such reliance that ‘‘a fundamental principle of good The EPA emphasizes that it is already and the process by which such reliance government is making sure that all the Agency’s practice to assure that any is appropriate. Thus, the EPA reiterates people know what the applicable law is. interpretive letters are correctly and that reliance on interpretive letters to Having the applicable law manifest in a adequately reflected in the Federal resolve ambiguities or perceived letter sitting in a filing cabinet in one Register and are included in the ambiguities in SIP submissions must be office clearly does not qualify as good rulemaking docket for a SIP approval. weighed by the Agency on a case-by- government.’’ The EPA generally agrees Should the Petitioner or any other party case basis, and such evaluation is on this point as well. As explained have concerns about any ambiguity in a dependent upon the specific facts and earlier in this document, the EPA allows provision in a SIP submission, the EPA circumstances present in a specific SIP the use of interpretive letters to clarify strongly encourages that they bring this action and would follow the process perceived ambiguity in the provisions of ambiguity to the Agency’s attention described in the proposal. a SIP submission only when used during the rulemaking action on the SIP 2. Comments that opposed the EPA’s correctly, with adequate documentation submission so that it can be addressed interpretation of the CAA to allow in both the Federal Register and the in the rulemaking process and properly reliance on interpretive letters to clarify docket for the underlying rulemaking reflected in the administrative record. ambiguities in state SIP submissions. action. Section VI.B of this document Should an ambiguity come to light later, Comment: Other commenters explains how interested parties can use the EPA encourages the Petitioner or disagreed with the EPA’s proposed the list or table of actions that appears any other party to bring that ambiguity response to the Petition on this issue. in the CFR and that reflects the various to the attention of the relevant EPA One commenter opposed the Agency’s components of the approved SIP, to Regional Office. If the Agency agrees reliance on interpretive letters under identify the Federal Register document that there is ambiguity in a SIP any circumstances and did not draw any wherein the EPA has explained the provision that requires clarification factual or procedural distinctions basis for its decision on any individual subsequent to final action on the SIP between situations in which this SIP provision. As such, the EPA does submission, then the EPA can work approach might or might not be not envision a scenario whereby a with the relevant air agency to resolve appropriate or correctly processed. This citizen or a court would be unable to that ambiguity by various means. commenter argued that citizens should determine how the air agency and the not be required ‘‘to sift through a large EPA interpreted a specific SIP provision D. Response to Comments Concerning and complex rulemaking docket in at the time of its approval into the SIP. Reliance on Interpretive Letters in SIP order to figure out the meaning and Assuming there is any ambiguity in the Revisions operation of state regulations.’’ The provision, the mutual understanding of The EPA received relatively few commenter asserted that simply as a the state and the EPA as to the proper comments, both supportive and adverse, matter of ‘‘good government,’’ all state interpretation of that provision would concerning the Agency’s overarching regulations approved as SIP provisions be clear at the time of the approval of decision to deny the Petition with should be clear and unambiguous on the SIP revision, as reflected in the respect to this issue. For clarity and ease their face. This commenter also Federal Register document for the final of discussion, the EPA is responding to expressed concern that courts could not rule and the docket supporting that rule, these comments, grouped by whether or would not accord legal weight to which should answer any question they were supportive or adverse, in this interpretive letters created after state about the correct interpretation of the section of this document. regulations were adopted and submitted term. 1. Comments that supported the to the EPA, or after the EPA’s approval The same commenter also questioned EPA’s interpretation of the CAA to of the SIP submission occurred, and whether ‘‘courts can or will give any

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legal weight to interpretative letters agency’s interpretation of its own submitted SIPs and requests states to created after state regulations are regulations a ‘‘ ‘high level of deference,’ submit interpretive letters to explain adopted or SIP approvals occurred, in accepting it ‘unless it is plainly any ambiguities, before putting the the face of industry defendant wrong.’ ’’ 134 When reviewing a proposed action on the SIP submission arguments that the SIP provisions do purportedly ambiguous agency out for public notice and comment. On not accord with those post hoc regulation, courts have found that the occasion, however, ambiguous interpretive letters.’’ This commenter agency’s interpretation of its own provisions may inadvertently remain asserted that by not requiring all regulation is ‘‘controlling unless ‘plainly and are not identified until the notice- interpretations of the SSM provisions in erroneous or inconsistent with the and-comment period has begun. As the ‘‘unambiguous language of the regulation.’ ’’ 135 Based on these settled explained earlier in this document, SIPs,’’ the EPA is accepting ‘‘great legal legal principles, the EPA would expect sometimes these ambiguities are so uncertainty’’ as to whether judges will a court in an enforcement action to look significant that the EPA requires the consider interpretive letters in not only to the text of the regulation at state to resubmit its SIP submission enforcement actions. As a preliminary issue but also to the preamble to the altogether, which would entail another matter, as explained earlier in this final rule. The preamble would contain notice-and-comment period. When the document, this action does not apply to an explanation of any interpretive letter EPA does not deem the ambiguity to be ‘‘post hoc’’ interpretive letters, i.e., to from the state upon which the EPA so significant as to warrant a revision to situations where a state would submit relied in order to interpret any the state’s regulatory text in the SIP 136 an interpretive letter after the EPA’s ambiguous SIP provisions. As such, submission, the Agency believes that approval of the SIP. Through this action the EPA disagrees that it is ‘‘accepting resolution of the ambiguity through the the EPA is confirming its view that it an unreasonable amount of legal submission of an interpretive letter, may use interpretive letters to clarify uncertainty’’ in future enforcement which then is incorporated into the ambiguous SIP provisions only when actions by allowing the use of EPA’s action, reflected in the those letters were submitted to the EPA interpretive letters to clarify SIP administrative record and memorialized during the evaluation of the SIP provisions where such letters are as the proper intended reading of the submission and before final approval of specifically discussed in the final provision, is appropriate. the SIP revision and were included in rulemaking. The EPA reiterates that the final rulemaking docket and reliance on such interpretive letters is This approach comports with well- explicitly discussed in the Federal not appropriate in all circumstances, established principles applicable to Register document announcing such such as instances in which the state’s notice-and-comment rulemaking final action. SIP submission is so significantly generally. One purpose of giving In addition, as explained earlier in ambiguous that it is necessary to request interested parties the opportunity to this document, once the EPA approves that the state revise the regulatory text comment is to provide these parties the a SIP revision, it becomes part of the before the EPA can approve it into the opportunity to bring areas of potential state’s SIP identified in the CFR and SIP. ambiguity in the proposal to an agency’s thus becomes a federally enforceable Finally, a commenter stated its view attention so that the concerns may be regulation. In cases where the substance that reliance on interpretive letters may addressed before the agency takes final of the interpretive letter is provided in be appropriate, but only when affected action. If the APA did not allow the the CFR itself, either by copying the parties have the right to comment on the agency to consider comments and interpretation verbatim into the letter and the EPA’s reliance on it provide clarification when issuing its regulatory text or by incorporating the during the rulemaking in which the final action as necessary, this purpose letter by reference, courts need not look letter is relied upon. The EPA has would be defeated. Courts have held further for the state and the Agency’s explained earlier in this document the that so long as a final rule is a ‘‘logical agreed upon interpretation. The EPA’s proper circumstances under which such outgrowth’’ of the proposed rule, interpretation will be clearly reflected in reliance may be appropriate and the adequate notice has been provided.137 It the CFR. The EPA recognizes that actual proper process to be followed when is the EPA’s practice to neither require or perceived regulatory ambiguity may reliance upon such letters is a state to resubmit a SIP submission nor become an issue in instances where the appropriate, but the EPA also notes that repropose action on the submission, so interpretive letter is reflected in the the process does not require that the long as the clarification provided in the preamble to the final rulemaking but is letters always be made available for interpretive letter is a logical outgrowth not copied or incorporated by reference public comment. As explained earlier in of the proposed SIP provision. If an in the CFR text itself. It is important to this document, the EPA makes every interested party believes that the EPA is note, however, that once included in the attempt to identify ambiguities in state- incorrect in not requiring the state to preamble to the final rule, the air revise its SIP submission or that the agency’s interpretation of the SIP Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, EPA should repropose action on a 53 (D.C. Cir. 1999) (‘‘Although the preamble does submission, including the clarification provision, as reflected in the not ‘control’ the meaning of the regulation, it may interpretive letter, becomes the EPA’s serve as a source of evidence concerning provided by the interpretive letter in the promulgated interpretation as well. contemporaneous agency intent.’’). plain language of the SIP submission While the EPA recognizes that an 134 Howmet at 549 (quoting Gen Elec. Co. v. EPA, itself, that party does have recourse. The 53 F.3d 1324, 1327 (D.C. Cir. 1990)). APA gives that party the opportunity to agency’s preamble guidance generally 135 Auer v. Robbins, 519 U.S. 452, 461 (1997) does not have the binding force of an (quoting Robertson v. Methow Valley Citizens petition the EPA for rulemaking to agency’s regulations, courts do view it Council, 490 U.S. 332, 359 (1989)). reconsider the decision under 5 U.S.C. as informative in understanding an 136 Indeed, the APA requires agencies to 553(e). For these reasons, the EPA agency’s interpretation of its own ‘‘incorporate in the rules adopted a concise general believes that its process for using statement of their basis and purpose,’’ 5 U.S.C. 133 interpretive letters to clarify SIP regulation, and courts accord an 553(c), often referred to as the regulatory preamble. It would not make sense for a court to attempt to 133 See, e.g., Howmet Corp. v. EPA, 614 F.3d 544, interpret the text of a regulation independently 137 See, e.g., Shell Oil Co., 950 F.2d 741; NRDC 552 (D.C. Cir. 2010) (using preamble guidance to from its statutorily mandated statement of basis and v. Thomas, 838 F.2d 1224 (D.C. Cir. 1988); South interpret an ambiguous regulatory provision); Wyo. purpose. Terminal Corp. v. EPA, 504 F.2d 646.

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provisions, as articulated in this limitations in SIPs must be established decision in Sierra Club v. Johnson, the rulemaking, is appropriate. as numerical limitations, or must be set EPA has been taking steps to assure that at the same numerical level at all times. its own regulations impose emission VII. Clarifications, Reiterations and The EPA did not take this position. In limitations that apply continuously, Revisions to the EPA’s SSM Policy the case of section 110(a)(2)(A), the including during startup and shutdown, A. Applicability of Emission Limitations statute does not include an explicit as required.141 During Periods of SSM requirement that all SIP emission Regardless of the reason for the commenters’ apparent 1. What the EPA Proposed limitations must be expressed numerically. In practice, it may be that misunderstanding on this point, many In the February 2013 proposal, the numerical emission limitations are the of the commenters used this incorrect EPA reiterated its longstanding most appropriate from a regulatory premise as a basis to argue that interpretation of the CAA that SIP perspective (e.g., to be legally and ‘‘continuous’’ SIP emission limitations provisions cannot include exemptions practically enforceable) and thus the may contain total exemptions for all from emission limitations for excess limitation would need to be established emissions during SSM events. emissions during SSM events. This has in this form to meet CAA requirements. Therefore, in this final action the EPA been the EPA’s explicitly stated The EPA did not, however, adopt the wishes to be very clear on this interpretation of the CAA with respect position ascribed to it by commenters, important point, which is that SIP to SIP provisions since the 1982 SSM i.e., that SIP emission limitations must emission limitations: (i) Do not need to Guidance, and the Agency has reiterated always be expressed only numerically be numerical in format; (ii) do not have this important point in the 1983 SSM and must always be set at the same to apply the same limitation (e.g., Guidance, the 1999 SSM Guidance and numerical level during all modes of numerical level) at all times; and (iii) the 2001 SSM Guidance. In accordance source operation. may be composed of a combination of with CAA section 302(k), SIPs must The EPA notes that some provisions numerical limitations, specific contain emission limitations that ‘‘limit of the CAA that govern standard-setting technological control requirements and/ the quantity, rate, or concentration of limit the EPA’s own ability to set non- or work practice requirements, with emissions of air pollutants on a numerical standards.139 Section each component of the emission continuous basis.’’ Court decisions 110(a)(2)(A) does not contain limitation applicable during a defined confirm that this requirement for comparable explicit limits on non- mode of source operation. It is continuous compliance prohibits numerical forms of emission limitation. important to emphasize, however, that exemptions for excess emissions during Presumably, however, some regardless of how the air agency SSM events.138 commenters misunderstood the explicit structures or expresses a SIP emission 2. What Is Being Finalized in This statutory requirement for emission limitation—whether solely as one Action limitations to be ‘‘continuous’’ as a numerical limitation, as a combination of different numerical limitations or as For the reasons explained in the requirement that states must literally establish SIP emission limitations that a combination of numerical limitations, February 2013 proposal, in the specific technological control background memorandum supporting would apply the same precise numerical level at all times. Evidently these requirements and/or work practice that proposal and in the EPA’s requirements that apply during certain responses to comments in this commenters did not consider the explicit recommendations that the EPA modes of operation such as startup and document, the EPA interprets the CAA shutdown—the emission limitation as a made in the February 2013 proposal to prohibit exemptions for excess whole must be continuous, must meet concerning creation of alternative emissions during SSM events in SIP applicable CAA stringency requirements emission limitations in SIP provisions provisions. This interpretation has long and must be legally and practically that states may elect to apply to sources been reflected in the SSM Policy. The enforceable.142 EPA acknowledges, however, that both during startup, shutdown or other Another apparent common states and the Agency have failed to specifically defined modes of source 140 misconception of commenters was that adhere to the CAA consistently with operation. As many of the SIP provisions may contain exemptions respect to this issue in some instances commenters acknowledged, the EPA for emissions during SSM events, so in the past, and thus the need for this itself has recently promulgated emission long as there is some other generic SIP call action to correct the existing limitations in NSPS and NESHAP regulatory requirement of some kind deficiencies in SIPs. In order to be clear regulations that impose different somewhere else in the SIP that about this important point on a going- numerical levels during different modes coincidentally applies during those forward basis, the EPA is reiterating that of source operation or impose emission exempt periods. The other generic emission limitations in SIP provisions limitations that are composed of a regulatory requirements most frequently cannot contain exemptions for combination of a numerical limitation referred to by commenters are ‘‘general emissions during SSM events. during some modes of operation and a duty’’ type requirements, such as a Many commenters wrongly asserted specific technological control general duty to minimize emissions at that the EPA declared in the February requirement or work practice all times, a general duty to use good 2013 proposal that all emission requirement during other modes of engineering judgment at all times, or a operation. In light of the court’s 138 See, e.g., Sierra Club v. Johnson, 551 F.3d 141 551 F.3d 1019 (D.C. Cir. 2008). 1019, 1021 (D.C. Cir. 2008) (interpreting the 139 See, e.g., CAA section 112(h)(1) (authorizing 142 The EPA notes that CAA section 123 explicitly definition of emission limitation in section 302(k) design, equipment, work practice, or other prohibits certain intermittent or supplemental and section 112); Mich. Dep’t of Envtl. Quality v. operational emission limitations under certain controls on sources. In a situation where an Browner, 230 F.3d 181 (6th Cir. 2000) (upholding conditions); 40 CFR 51.308(e)(1)(iii) (regulations emission limitation is continuous, by virtue of the disapproval of SIP provisions because they applicable to regional haze plans). fact that it has components applicable during all contained exemptions applicable to SSM events); 140 See February 2013 proposal, 78 FR 12459 at modes of source operation, the EPA would not US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 12478 (February 22, 2013) (the recommended interpret the components that applied only during (10th Cir. 2012) (upholding the EPA’s issuance of criteria for consideration in creation of SIP certain modes of operation, e.g., startup and a SIP call to a state to correct SSM-related provisions that apply during startup and shutdown, to be prohibited intermittent or deficiencies). shutdown). supplemental controls.

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general duty not to cause a violation of and adverse, concerning the issue of continuous and thus cannot contain the NAAQS at any time. To the extent exemptions in SIP provisions for excess exemptions for emissions during SSM that such other general-duty emissions during SSM events. Many of events. Likewise, the NSPS general requirement is properly established and these comments raised the same core provisions in 40 CFR 60.8 that legally and practically enforceable, the issues, albeit using slight variations on commenters identified as inconsistent EPA would agree that it may be an the arguments or variations on the also predate that 2008 court decision. appropriate separate requirement to combination and sequence of Although these other EPA regulations impose upon sources in addition to the arguments. For clarity and ease of that include exemptions for emissions (continuous) emission limitation. The discussion, the EPA is responding to during SSM events were not before the EPA itself imposes separate general these comments, grouped by issue, in court in the Sierra Club case, the EPA’s duties of this type in appropriate this section of this document. view is that the legal reasoning of the circumstances.143 The existence of these a. Comments that the EPA’s proposed Sierra Club decision applies equally to generic provisions does not, however, action on the Petition is incorrect these exemptions and that the legitimize exemptions for emissions because some of the Agency’s own exemptions are thus inconsistent with during SSM events in a SIP provision regulations contain exemptions for the CAA. that imposes an emission limitation. emissions during SSM events. Consequently, since the Sierra Club In accordance with the definition of Comment: Many commenters argued decision, the EPA has eliminated section 302(k), SIP emission limitations that the EPA is misinterpreting the CAA exemptions in many existing federal must be continuous and apply at all to preclude SIP provisions with emission limitations as these standards times. SIP provisions may be composed exemptions for emissions during SSM are revised or reviewed pursuant to of a combination of numerical events because some of the Agency’s CAA requirements, such as CAA limitations, specific technological own existing NSPS and NESHAP rules sections 111(b)(1)(B), 112(d)(6) and control requirements and/or work contain such exemptions. Some 112(f)(2).144 Similarly, the EPA has practice requirements, but those must be commenters provided a list of existing established emission standards that components of a continuously NSPS or NESHAP standards that they apply at all times, including during applicable SIP emission limitation. In claimed currently contain exemptions SSM events, when promulgating new addition, the SIP emission limitation for emissions during SSM events. NSPS and NESHAP standards to be must meet applicable stringency Commenters also noted that the NSPS consistent with the Sierra Club requirements during all modes of source general provisions at 40 CFR 60.11(d) decision.145 The EPA recognizes that the operation (e.g., be RACT for stationary excuse noncompliance with many NSPS NSPS general provisions regulations sources located in a nonattainment area) during periods of startup and shutdown. also include exemptions for emissions and be legally and practically Other commenters asserted that the during SSM events, but in promulgating enforceable. General-duty requirements EPA’s interpretations in the February new NSPS since the Sierra Club that are not clearly part of or explicitly 2013 proposal are inconsistent with its decision, the EPA has established cross-referenced in a SIP emission longstanding interpretation of the Act emission limitations in the new NSPS limitation cannot be viewed as a because the EPA itself has a long history that apply at all times thereby component of a continuous emission of adopting exceptions to numerical superseding those general provisions. limitation. Even if clearly part of or emission limitations for emissions Therefore, the EPA’s action in this explicitly cross-referenced in the SIP during SSM events, citing to the NSPS rulemaking is consistent with other emission limitation, however, a given general provisions at 40 CFR 60.8, the actions that the EPA has taken since the general-duty requirement may not be NSPS for Fossil-Fuel-Fired Steam Sierra Club decision concerning the consistent with the applicable Generators and for Electric Utility Steam issue of SSM exemptions. stringency requirements for that type of Generating Units (40 CFR part 60, The fact that the EPA has not SIP provision during startup and respectively subparts D and Da) and the completed the process of updating its shutdown. The EPA’s recommendations NSPS for Industrial-Commercial- own regulations to bring them into for developing appropriate alternative Institutional Steam Generating Units compliance with respect to CAA emission limitations applicable during and for Small Industrial-Commercial- requirements concerning proper certain modes of source operation are Institutional Steam Generating Units (40 treatment of emissions during SSM discussed in section VII.B.2 of this CFR part 60, respectively subparts Db events does not render this SIP call document. In general, the EPA believes and Dc). Commenters claimed that action arbitrary or capricious. The that a legally and practically enforceable recent revisions to 40 CFR part 60, existence of a deficiency in an existing alternative emission limitation subpart Da excluded periods of startup EPA regulation that has not yet been applicable during startup and shutdown and shutdown from new PM standards. corrected does not alter the legal should be expressed as a numerical The commenters pointed to these facts requirements imposed by the CAA upon limitation, a specific technological or alleged facts as evidence that the EPA states with respect to SIP provisions. control requirement or a specific work is interpreting the term ‘‘emission Thus, for example, the EPA does not practice requirement applicable to limitation’’ or other provisions of the agree with commenters that the affected sources during specifically statute inconsistently to preclude SSM continued existence of SSM exemptions defined periods or modes of operation. exemptions in SIP provisions. Response: Commenters are correct 144 See, e.g., ‘‘New Source Performance Standards 3. Response to Comments that many of the EPA’s existing NSPS Review for Nitric Acid Plants; Final rule,’’ 77 FR The EPA received a substantial and NESHAP standards still contain 48433 (August 14, 2012) (example of NSPS emission limitation that no longer includes number of comments, both supportive exemptions from emission limitations exemption for periods of startup or shutdown). during periods of SSM. The exemptions 145 See, e.g., ‘‘Oil and Natural Gas Sector: New 143 See, e.g., ‘‘Oil and Natural Gas Sector: New in these EPA regulations, however, Source Performance Standards and National Source Performance Standards and National predated the 2008 issuance of the D.C. Emission Standards for Hazardous Air Pollutants Emission Standards for Hazardous Air Pollutants Reviews; Final rule,’’ 77 FR 49489 (August 16, Reviews; Final rule,’’ 77 FR 49489 at 49570, 49586 Circuit decision in Sierra Club v. 2012) (consistent with Sierra Club v. Johnson, the (August 16, 2012) (added general standards to apply Johnson, in which the court held that EPA has established standards in both rules that at all times). emission limitations must be apply at all times).

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in the general provisions applicable to apply.146 Although the Sierra Club v. limitations have numerical limitations the emission limitations in the Agency’s Johnson decision specifically addressed that apply during most periods and own NSPS for Fossil-Fuel-Fired Steam the validity of SSM exemptions in specific technological control Generators in 40 CFR part 60, subpart D, NESHAP regulations, the EPA requirements or work practice is evidence that exemptions for concluded that the court’s focus on the requirements that apply during startup emissions during SSM events are definition of ‘‘emission limitation’’ in and shutdown, but all periods of permitted by the CAA. section 302(k) applied equally to any operation are subject to controls and no The EPA acknowledges that such SSM exemptions in NSPS periods of operation are exempt from correction of longstanding regulatory regulations. Thus, for affected sources regulation. States are similarly able to alter their regulations, in response to deficiencies by proper rulemaking on which construction, modification or reconstruction starts after May 3, 2011, this SIP call, to provide for emission procedures requires time and resources, the General Provisions do not provide limitations with different types of not only for the EPA but also for states an exemption to compliance with the controls applicable during different and affected sources. Hence, the EPA applicable emission limitations during modes of source operation, so long as has elected to proceed via its authority SSM events. those controls apply at all times and no under section 110(k)(5) and to provide For such sources, the emission periods are exempt from controls. As states with the full 18 months allowed limitation for PM in 40 CFR 60.42Da(a) explained in section VII.A of this by statute for compliance with this imposes a numerical level of 0.03 lb/ document, the EPA interprets section action. This SIP call is intended to help MMBtu that applies at all times except 110(a)(2)(A) to permit SIP provisions assure that state SIP provisions are during startup and shutdown and that are composed of a combination of brought into line with CAA specific work practices that apply numerical limitations, specific requirements for emission limitations, during startup and shutdown.147 The technological control requirements and/ just as the EPA is undertaking a process related emission limitation for opacity or work practice requirements, so long to update its own regulations. from such sources in 40 CFR 60.42Da(b) as the resulting emission limitations are The EPA also specifically disagrees is 20 percent opacity at all times, except continuous, meet applicable stringency with the commenters’ implication that for one 6-minute period per hour of not requirements (e.g., are RACT for sources 40 CFR 60.11(d) completely excuses more than 27 percent, and it applies at in nonattainment areas) and are legally noncompliance during periods of all times except during periods of and practically enforceable. startup and shutdown. Rather, that startup and shutdown when the work The EPA also notes that the provision imposes a separate affirmative practices for PM limit opacity. provisions of 40 CFR 60.42Da(b)(1) do obligation to maintain and operate the Commenters alleged that the EPA not provide an ‘‘exemption’’ from the affected facility, including associated air created an ‘‘exemption’’ from the PM opacity standard. That section merely pollution control equipment, in a emission limitations in subpart Da provides that the affected sources do not manner consistent with good air applicable to post-May 3, 2011, affected need to meet the opacity standard of the pollution control practices at all times. sources. That is simply incorrect. The NSPS (at any time), if they have The existence of this separate duty to revised regulations in subpart Da installed a PM continuous emission minimize emissions, however, does not impose a numerical emission limitation monitoring system (PM CEMS) to justify or excuse the existence of an that applies at all times except during measure PM emissions continuously exemption for emissions during SSM startup and shutdown and impose instead of relying on periodic stack tests events from the emission limitations of specific work practice requirements that to assure compliance with the PM an EPA NSPS. It is a separate obligation apply during startup and shutdown as a emission limitation. One reason for the that sources must also meet at all times. component of the emission limitation. imposition of opacity standards on sources is to provide an effective means The EPA also disagrees with the Specifically, 40 CFR 60.42Da(e)(2) of monitoring for purposes of assuring commenters who argued that the explicitly requires post-May 3, 2011, source compliance with PM emission Agency has recently created new affected sources to comply with specific limitations and proper operation of PM exemptions for PM emissions during work practice standards in part 63, emission controls on a continuous basis. startup and shutdown events in the subpart UUUUU. The numerical If a source is subject to a sufficiently NSPS for Electric Utility Steam emission limitation and the work stringent PM limitation and has opted to Generating Units in 40 CFR part 60, practice requirement together comprise install, calibrate, maintain and operate a subpart Da. The EPA has not created a continuous emission limitation and PM CEMS to measure PM emissions, new exemptions for emissions during there is no exemption for emissions then it is reasonable for the EPA to startup and shutdown. To the contrary, during startup and shutdown. The fact conclude that an opacity emission the EPA has taken steps to assure that that the EPA has established different limitation is not needed for that these regulations are consistent with the requirements for different periods of particular source for those purposes.148 statutory definition of emission operation does not constitute creation of The direct measurement of PM, in limitation and with the logic of the an exemption. These emission conjunction with an appropriately Sierra Club decision on a going-forward 146 stringent PM emission limitation that basis. In accordance with that decision, See 40 CFR 60.48Da(a). For affected facilities for which construction, modification, or the revised emission limitations in reconstruction commenced after May 3, 2011, the 148 For example, for NSPS regulations under subpart Da NSPS apply continuously. In applicable SO2 emissions limit under § 60.43Da, subparts D, Da, Db and Dc of 40 CFR part 60, the revising subpart Da to establish NOX emissions limit under § 60.44Da, and NOX EPA has deemed 0.030 lb/MMBtu to be a requirements for sources on which plus CO emissions limit under § 60.45Da apply at sufficiently stringent PM limitation for certain all times. sources operating PM CEMS to conclude that an construction, modification or 147 The EPA notes that the emission standards for opacity emission limitation is not needed, on the reconstruction commenced after May 3, SO2 in 40 CFR 60.43Da and for NOX in 40 CFR basis that the contribution of filterable PM to 2011, the EPA determined that it was 60.44Da, applicable to sources on which opacity at PM levels of 0.030 lb/MMBtu or less is appropriate to provide that the construction, modification or reconstruction generally negligible, and sources with mass limits commenced after May 3, 2011, also apply at this level or less will operate with little or no exemptions for emissions during SSM continuously and contain no exemptions for visible emissions (i.e., less than 5 percent opacity). events in the General Provisions do not emissions during SSM events. See 74 FR 5072 at 5073 (January 28, 2009).

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applies continuously, is an appropriate exemptions would be inappropriate.’’ emission limitations with such means to assure adequate control of PM Thus, so long as a state did not alter the exemptions, even if those emission emissions on a continuous basis. States requirements of the existing NSPS or limitations are NSPS or NESHAP evaluating how best to replace NESHAP by including additional regulations that the EPA has not yet impermissible SSM exemptions from affirmative defenses or exemptions, the revised to make consistent with CAA opacity standards may wish to consider EPA indicated that it would approve a requirements. Alternatively, states may a similar approach, conditioned upon SIP submission that included an NSPS elect to adopt an existing NSPS or the use of PM CEMS and a sufficiently or NESHAP. NESHAP as a SIP provision, so long as stringent PM emission limitation. The commenters’ argument has the state provision excludes the SSM Finally, the EPA emphasizes that brought to the EPA’s attention that past exemption.150 States may also wish to what is at issue in this action is the guidance on this issue is in fact replace the SSM exemption with question of whether emission inconsistent with more recent legal appropriately developed alternative limitations in SIP provisions can developments. At the time of the 1999 emission limitations that apply during include exemptions for emissions SSM Guidance, the EPA was still of the startup and shutdown in lieu of the during SSM events. The EPA is belief that its own NSPS and NESHAP SSM exemption. Otherwise, the EPA’s reiterating its longstanding regulations could legitimately include approval of the deficient SSM interpretation of the CAA with respect exemptions for emissions during SSM exemption provisions into the SIP to this question, in the process of events. In that light, recommending to would contravene CAA requirements for responding to the Petition, updating its states that they could rely on an EPA SIP provisions and would potentially SSM Policy and applying its current NSPS or NESHAP as an emission result in misinterpretation or interpretations of the CAA to the limitation in a SIP provision so long as misapplication of the standards by specific SIP provisions at issue in this they did not alter the NSPS or NESHAP regulators, regulated entities, courts and SIP call action. To the extent that in any fashion was logical. At that time, members of the public. The EPA commenters intend to point out that the the reasoning was that NSPS and emphasizes that the inclusion of an EPA needs to address exemptions for NESHAP standards were technology- NSPS or NESHAP as an emission emissions during SSM events in its own based standards that, although neither limitation in a state’s SIP (which existing regulations, the Agency is designed nor intended to meet the approach, as noted in section VII.B.3 of already aware of that need due to recent separate legal requirements for SIP this document, would be at the state’s judicial decisions and is proceeding to provisions, could be used to provide option) is different and distinct from correct those regulations in due course. emission reductions creditable in SIPs. reliance on such standards indirectly, b. Comments that the EPA’s proposed Since the 2008 D.C. Circuit decision in such as sources of emission reductions action on the Petition is incorrect Sierra Club v. Johnson, however, it has that may be taken into account for SIP because the Agency has previously been clear that NSPS and NESHAP planning purposes in emissions allowed the inclusion of exemptions for standards themselves cannot contain inventories or attainment emissions during SSM events through such exemptions. The reasoning of the demonstrations. For these uses (i.e., approval of NSPS or NESHAP court was that exemptions for SSM other than as direct emission requirements into SIPs. events are impermissible because they limitations), states may continue to rely Comment: Commenters asserted that contradict the requirement that the EPA is being inconsistent because it on EPA NSPS and NESHAP regulations, emission limitations be ‘‘continuous’’ in even those that have not yet been has previously approved SIP accordance with the definition of that revised to remove inappropriate submissions that rely on NSPS rules, term in section 302(k). Although the exemptions, in accordance with the including the SSM exemptions in those court evaluated this issue in the context requirements applicable to those SIP existing rules. The commenters argued of EPA regulations under section 112, planning functions. that the EPA’s current interpretation of the EPA believes that this same logic the CAA to preclude SSM exemptions extends to SIP provisions under section c. Comments that the EPA is in SIP provisions is thus at odds with 110, which similarly must contain misinterpreting the Sierra Club case past guidance and practice. emission limitations as defined in the because it applies only to MACT Response: The EPA disagrees with the CAA. Section 110(a)(2)(A) requires regulations and not to SIP provisions. argument that past approval of SIP states to have emission limitations in Comment: Many commenters claimed submissions that relied upon an NSPS their SIPs to meet other CAA that the EPA incorrectly applies the or NESHAP with an SSM exemption is requirements, and any such emission holding in the Sierra Club decision to evidence that such exemptions should limitations would similarly be subject to preclude exemptions for emissions be permissible in SIP provisions in the the definition of that term in section during SSM events in SIP provisions future. In the 1999 SSM Guidance, the 302(k). and that the Sierra Club decision does EPA addressed the related issue of Accordingly, the EPA concludes that, not apply in this context. The whether states could create affirmative prospectively, a state should not submit commenters argued that the Sierra Club defenses in SIP provisions that would an NSPS or NESHAP for inclusion into decision was directly dependent on the alter or add to the requirements of an its SIP as an emission limitation structure of CAA section 112 and cannot existing EPA NSPS or NESHAP.149 At (whether through incorporation by be extended to the different regulatory that time, the EPA clearly stated that it reference or otherwise), unless that would be inappropriate for a state to NSPS or NESHAP does not include an 150 Under CAA section 116, states have the seek to ‘‘deviate’’ from the specific exemption for SSM events or unless the explicit general authority to regulate more stringently than the EPA. Indeed, under section 116 requirements of an NSPS or NESHAP state otherwise takes action to exclude states can regulate sources subject to EPA when adopting that standard as a SIP the SSM exemption from the standard regulations promulgated under section 111 or provision, stating that ‘‘[b]ecause EPA as part of the SIP submission. Because section 112 so long as they do not regulate them set these standards taking into account SIP provisions must apply less stringently. Accordingly, the EPA believes that states may elect to adopt EPA regulations under technological limitations, additional continuously, including during SSM section 111 or section 112 as SIP provisions and events, the EPA can no longer approve expressly eliminate the exemptions for emissions 149 See 1999 SSM Guidance at Attachment p. 3. SIP submissions that include any during SSM events.

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structure that governs SIPs under CAA during SSM events were consistent with words, under the CAA and the court’s section 110. CAA requirements because the MACT decision, emission limitations in SIP The commenters further contended standards and the separate ‘‘general provisions as well as in NSPS and that in the SIP context, the underlying duty’’ requirements ‘‘together form an NESHAP regulations must be air quality pollution control uninterrupted, i.e., continuous’’ continuous, although they can impose requirement for SIPs is to attain NAAQS emission limitation, because either the different levels or forms of control and no specific level of stringency is numerical limitation or the general duty during different modes of source required, unlike section 112, and applied at all times.152 The Sierra Club operation. Congress gave states broad discretion in court rejected this argument, in part The EPA also disagrees with the the design of their SIPs. Commenters because the general duty that EPA argument that the Sierra Club decision asserted that the Sierra Club decision required sources to meet during SSM does not apply because section 110, held only that the general-duty events was not itself consistent with unlike section 112, does not impose any requirement in the section 112 section 112(d) and the EPA did not specific level of ‘‘stringency’’ for SIP regulations did not meet the stringency purport to act under section 112(h). provisions. In accordance with section requirements of CAA section 112 and Thus, the EPA agrees that the court in 110(a)(1), states are required to have that this holding does not apply in the Sierra Club explicitly found that the SIPs that provide for attainment, SIP context because in the SIP context SSM exemption in EPA’s NESHAP maintenance and enforcement of the no specific level of stringency is general provision rules violated the NAAQS in general. Pursuant to section required. CAA because the general duty to 110(a)(2), states are required to have SIP Commenters also asserted that a minimize emissions was not a section provisions that meet many specific general-duty requirement is an 112(d)-compliant standard and had not procedural and substantive appropriate alternative standard for been justified by the EPA as a 112(h)- requirements, including but not limited SSM events in the SIP context because compliant standard. The court reasoned to, the explicit requirements of section CAA sections 302(k) and 110(a)(2)(A) that when sections 112 and 302(k) are 110(a)(2)(A) for emission limitations give states broad authority to develop read together, there must be a necessary to meet other substantive the mix of controls necessary and continuous section 112-compliant CAA requirements. In addition, appropriate to implement the NAAQS. standard. It is important to note that if however, states must have SIP Other commenters contended that the the otherwise applicable numerical provisions that collectively meet a host Sierra Club decision does not preclude MACT standards had themselves of other statutory requirements that also states from constructing a compliance applied at all times consistent with impose more specific stringency regime that uses multiple methods to section 302(k), then there would have requirements. Merely by way of limit emissions as long as the overall been no question that they were in fact example, section 110(a)(2)(I) requires compliance regime to minimize continuous. states with nonattainment areas to have emissions is enforceable. The EPA has concluded that the SIP provisions that collectively meet Commenters also suggested that the reasoning of the Sierra Club decision is part D requirements.154 decision in Kamp v. Hernandez relied correct and further supports the In turn, the upon in the Sierra Club case affirmed Agency’s interpretations of the CAA different subparts of part D applicable to EPA’s approval of a state emission with respect to SIP provisions. As each NAAQS impose many limitation in a SIP that specifically explained in the February 2013 requirements that require emission allowed and even expected a certain proposal, the EPA’s longstanding SSM limitations in SIPs that meet various number of annual exceedances of the guidance has interpreted the CAA to levels of stringency. Again, merely by 151 emission limit. Some commenters prohibit exemptions for emissions way of example, states with argued that the Sierra Club decision during SSM events since at least 1982. nonattainment areas for PM under part should not be read to impose a The EPA has long explained that D subpart 4 must have SIPs that include ‘‘continuous emissions limitation’’ exemptions for emissions during SSM emission limitations that meet either the requirement and that to the extent it events are not permissible in SIP RACM and RACT level of stringency (if does, it was incorrectly decided. provisions, because they interfere with the nonattainment area is classified Response: The EPA disagrees that the attainment and maintenance of the Moderate) or meet the BACM and BACT court’s decision in Sierra Club v. level of stringency (if the area is NAAQS, protection of PSD increments 155 Johnson has no relevance to this action. and improvement of visibility, and classified Serious). There are similar Of course that decision specifically because they are inconsistent with the requirements for states to impose addressed the validity of exemptions for enforcement structure of the CAA. The emission limitations that must meet emissions during SSM events in the EPA also noted that the definition of various levels of stringency for each of Agency’s own regulations promulgated emission limitation in section 302(k) the NAAQS. Likewise, states must under section 112. Naturally, that was part of the basis for its impose SIP emission limitations that decision turned, in part, on the specific interpretation concerning SIP meet BART and reasonable progress levels of stringency for regional haze provisions of section 112 and the provisions.153 In the February 2013 program purposes 156 specific arguments that each of the proposal, the EPA explained that the and must ensure litigants raised in that case. However, Sierra Club court’s emphasis on the that emission limitations meet BACT or the decision also turned in large part on definition of the term emission LAER levels of stringency for PSD or the explicit statutory definition of the limitation in section 302(k) further nonattainment NSR permitting program term ‘‘emission limitation’’ in section bolsters the Agency’s basis for 302(k), which requires such limitations interpreting the CAA to preclude such 154 Sections 171–193 of CAA title I comprise part D. to be ‘‘continuous.’’ exemptions in SIP provisions. In other In that litigation, the EPA itself had 155 See CAA section 172(c)(2) (generally argued that the exemptions from the applicable attainment plan requirements including 152 See 551 F.3d 1019, 1026 (D.C. Cir. 2008). RACM and RACT); CAA section 189(a)(1) otherwise applicable MACT standards 153 See 1999 SSM Guidance at 2, footnote 1 (citing (requirements for areas classified Moderate); section the section 302(k) definition of emission limitations 189(b) (requirements for areas classified Serious). 151 752 F.2d 1444 (9th Cir. 1985). and emission standards). 156 See CAA section 169A(b)(2)(A).

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purposes.157 The EPA agrees that states there is a ‘‘violation’’ of the NAAQS.159 only the general provisions’ exemption have broad discretion in how to devise Thus, the EPA believes that the court in was challenged and before the court in SIP provisions under section 110, but the Sierra Club decision properly cited the Sierra Club case. However, the states nevertheless are required to the Kamp case as support for the Kushner letter clearly stated that the devise SIP provisions that meet fundamental proposition that emission legality of all NESHAP SSM exemption applicable statutory stringency limitations must be ‘‘continuous.’’ provisions was in question and that EPA requirements. In short, the argument Moreover, the EPA notes that would examine such provisions in light that the Sierra Club decision is not commenters did not address other of the court’s decision. Therefore, the germane because there are no reported decisions in which courts have commenters’ suggestion that the comparable ‘‘stringency’’ requirements upheld the Agency’s disapproval of SIP Kushner letter supports a limited applicable to SIP provisions is simply in submissions containing SSM reading of the legal reasoning of the error. While it is true that SIP provisions exemptions.160 Sierra Club case is incorrect. do not need to meet section 112 levels d. Comments that the EPA’s proposed Second, the Kushner letter did not of stringency, they must still be action contradicts a 2009 guidance explicitly or implicitly address the issue continuous under section 302(k) and document concerning the effect of the of whether the CAA allows exemptions meet applicable NAAQS, PSD and Sierra Club decision on SSM for emissions during SSM events in SIP visibility requirements and stringency exemptions in existing standards. provisions. That fact is unsurprising, in levels. In short, they cannot contain Comment: A number of commenters that at the time of the Kushner letter the exemptions for emissions during SSM suggested that the EPA’s February 2013 EPA already had guidance in the SSM events. proposal is inconsistent with a Policy (issued and reiterated in 1982, memorandum (in fact a public letter) 1983, 1999 and 2001) that clearly stated Finally, the EPA does not agree with issued by the Agency following the the Agency’s view that such exemptions the commenters’ view of the Sierra Club decision in which the D.C. are not permissible in SIP provisions, significance of the reference to the Circuit vacated two EPA provisions that consistent with CAA requirements. It Kamp v. Hernandez decision by the exempt sources from section 112(d) would also have been unnecessary for court in the Sierra Club decision. The emission standards during periods of the Kushner letter discussing the impact Kamp decision upheld the EPA’s SSM (Kushner letter).161 The of the Sierra Club decision on NESHAP approval of a SIP provision that commenters noted that the Kushner standards to have mentioned that the imposed an SO2 emission limitation on letter explained that many MACT statutory definition of emission a specific stationary source.158 To the standards have SSM exemptions that limitation also precludes exemptions for extent that the commenters believe that were not affected by the Sierra Club SSM provisions in SIPs. The EPA had the Kamp decision stands for the decision. They argued that the Kushner already made this point explicitly in the principle that SIP emission limitations letter should be read to mean that no 1999 SSM Guidance, when it explained can be ‘‘continuous’’ even if they do not emission limitations other than the ones the reasons why such provisions would restrict emissions to the same numerical explicitly discussed within that letter be contrary to CAA requirements for limitation at all times, this point is not would be affected by the court’s holding SIPs.162 Thus, the EPA’s guidance for in dispute. As explained in section that emission limitations under the CAA SIP provisions concerning emissions VII.A of this document, the EPA agrees must be continuous. during SSM events had already with this principle. If, however, the Response: The EPA disagrees with explicitly articulated that provisions commenters believe that the Kamp these comments for several reasons. with exemptions for SSM events could decision instead indicates that SIP First, the commenters misinterpret the not be approved pursuant to CAA emission limitations may contain Kushner letter. The purpose of the section 110(l), because that would exemptions, such that no emission Kushner letter was to explain the direct interfere with a fundamental standard applies during some mode of and immediate impact of the Sierra Club requirement of the CAA, i.e., the source operation, then that is simply decision, which vacated the SSM definition of ‘‘emission limitation’’ in incorrect. The EPA-approved SIP exemption in EPA’s NESHAP general section 302(k). provision at issue in Kamp did not itself provisions regulations. The Kushner Finally, the EPA disagrees that the allow for a certain number of letter explained that the vacatur would Kushner letter could override the ‘‘exceedances’’ of the emission ‘‘immediately and directly’’ affect only applicability of the logic of the Sierra limitation each year. The state emission the subset of NESHAP source category Club decision to SIP provisions, even if limitation rule in that case was standards that incorporated the general the Agency had any such intentions. developed to ensure attainment and provisions’ exemption by reference, and The D.C. Circuit’s evaluation of the maintenance of the then applicable SO2 that contain no other regulatory text issue with respect to the EPA’s own NAAQS and the approved emission exempting or excusing, in any way, regulations was premised not solely limitation for the source fluctuated but compliance during SSM events, because upon the particular requirements of was continuous. It was the section 112 but also more broadly on the 159 specifications of the SO2 NAAQS See, e.g., 40 CFR 50.18 (24-hour PM2.5 NAAQS meaning and specific definition of the met when 98th-percentile monitored value is less term ‘‘emission limitation’’ under the standard that allowed for a certain than or equal to 35 ug/m3). number of ‘‘exceedances’’ each year. 160 See, e.g., Mich. Dep’t of Envtl. Quality v. CAA. That definition applies to SIP The NAAQS themselves are not Browner, 230 F.3d 181 (6th Cir. 2000) (upholding provisions as well as to the EPA’s own ‘‘emission limitations’’ governed by disapproval of SIP provisions because they regulations. Because the SSM Policy in contained exemptions applicable to SSM events); effect at the time of the Sierra Club section 302(k) and commonly have a US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 statistical ‘‘form’’ that authorizes a set (10th Cir. 2012) (upholding the EPA’s issuance of decision and the time of the Kushner number of ‘‘exceedances’’ of the a SIP call to a state to correct SSM-related letter already stated that EPA numerical level of the NAAQS before deficiencies). interpreted the CAA to prohibit SIP 161 See Letter from A. Kushner, Director, Office of provisions that exempt emissions Civil Enforcement, EPA/OECA, regarding ‘‘Vacatur 157 See CAA section 165(a)(4) and CAA section of Startup, Shutdown, and Malfunction (SSM) during SSM events, there would have 173(a)(2). Exemption (40 CFR 63.6(f)(1) and 63.6(h)(1)),’’ July 158 753 F.3d 1444, 1452–53 (9th Cir. 1985). 22, 2009, in the rulemaking docket. 162 See 1999 SSM Guidance at 2, footnote 1.

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been no need for the Kushner letter to limitations or control measures that combination of numerical emission speak to this issue.163 apply during startup or shutdown if the limitations and work practices. The e. Comments that the EPA’s proposed source cannot meet the otherwise work practice requirements specifically action on the Petition is incorrect applicable emission limitation in the apply to sources during startup and because the Agency’s recent MATS rule SIP.’’ 168 The EPA’s 1999 SSM Guidance shutdown and are thus components of and Area Source Boiler rule regulations articulated that SIP provisions may the continuously applicable emission contain exemptions for emissions include alternative emission limitations limitations.169 during SSM events. applicable during startup and shutdown Similarly, in the Area Source Boiler Comment: Many commenters asserted as part of a continuously applicable rule 170 the EPA has imposed emission that the EPA’s February 2013 proposed emission limitation when properly limitations on affected sources for PM, action to find SIP provisions with developed and otherwise consistent mercury and CO. The specific emission exemptions for emissions during SSM with CAA requirements. Moreover, the limitations that apply vary depending events to be substantially inadequate is EPA recommended specific criteria upon the subcategory of boiler. The arbitrary and capricious because recent relevant to the creation of such emission limitations include a Agency NESHAP regulations under alternative emission limitations. The combination of numerical emission section 112 contain similar exemptions. EPA reiterated that guidance in the limitations and work practice Commenters pointed to recently February 2013 proposal and is requirements that together apply during promulgated rules such as the MATS providing a clarified version of the all modes of source operation. For some rule 164 and the Area Source Boiler guidance in this final action. This issue subcategories, the standards that apply rule 165 as examples of NESHAP is addressed in more detail in section during startup and shutdown differ from regulations that they claim contain VII.B.2 of this document. the standards that apply during other similar exemptions. According to The EPA also disagrees with the periods of operation. This illustrates commenters, the emission limitations in assertion that it is holding state SIP what the EPA considers the correct EPA’s own MATS rule ‘‘allow excess provisions to a different standard than approach to creating emission emissions during SSM events,’’ its own NSPS and NESHAP regulations. limitations: (i) The emission limitation suggesting that the Agency created The EPA notes that SIP emission contains no exemption for emissions exemptions for such emissions.166 Other limitations and NSPS and NESHAP during SSM events; (ii) the component commenters similarly argued that the emission limitations are, of course, of the emission limitation that applies EPA created emission limitations in the designed for different purposes (e.g., to during startup and shutdown is clearly Area Source Boiler rule that do not meet the NAAQS versus to reduce stated and obviously is an emission apply ‘‘continuously’’ because the emissions of HAPs) and have to meet limitation that applies to the source; (iii) numerical limitations do not apply some different statutory requirements the component of the emission during startup and shutdown.167 In (e.g., to be RACM versus be standards limitation that applies during startup short, these commenters argued that the that are compliant with section 112). and shutdown meets the applicable EPA is being arbitrary and capricious However, the EPA understands the stringency level for this type of emission because it is holding emission commenters’ claim to be more limitation (in this case section 112); and limitations in SIPs to a different and specifically that the Agency is applying (iv) the emission limitation contains higher standard than emission a different interpretation of the term requirements to make it legally and limitations under its own NSPS and ‘‘emission limitation’’ and taking a practically enforceable. In short, the NESHAP regulations. different approach to the treatment of Area Source Boiler rule established Response: The EPA disagrees with emissions during SSM events in its own emission limitations that apply these commenters. The recent EPA regulations, even in recent regulations continuously, in accordance with the rulemaking efforts that commenters developed subsequent to the Sierra Club requirements of the CAA, and consistent claim are at odds with EPA’s SIP call are decision. The EPA believes that this with the court’s decision in the Sierra completely consistent with the Agency’s argument reflects a misunderstanding of Club decision. States with SIP action today. First, as explained in the both the February 2013 proposal and provisions that are deficient because February 2013 proposal, the EPA has what the Agency’s own new regulations they contain automatic or discretionary not taken the position that sources must contain. exemptions for emissions during SSM be subject to SIP emission limitations The MATS rule and the Area Source events may wish to consider the that are set at the same numerical level Boiler rule in fact illustrate how the Agency’s own approach when they at all times, or that are expressed as EPA is creating emission limitations develop SIP revisions in response to this numerical limitations at all times. As that apply continuously, with numerical SIP call. the EPA stated, ‘‘[i]f justified, the state limitations or combinations of f. Comments that section 110(a)(2)(A) can develop special emission numerical limitations and other specific authorizes states to have SIP provisions technological control requirements or with exemptions for emissions during 163 See, e.g., 1999 SSM Guidance, Attachment at work practice requirements applicable SSM events because they are not 1 (‘‘any provision that allows for an automatic exemption for excess emissions is prohibited’’). during startup and shutdown, ‘‘emission limitations’’ and are not 164 The mercury and air toxics standards (MATS) depending upon what is appropriate for rule for power plants regulates emissions from new the source category and the pollutants at 169 The EPA took final action on a petition for and existing coal- and oil-fired electric utility steam issue. For example, in the MATS rule reconsideration concerning the MATS rule and the generating units (EGUs) under 40 CFR part 63, the EPA has promulgated regulations Utility NSPS that made certain revisions related to subpart UUUUU. the emission limitations and work practices 165 The Area Source Boiler rule regulates that impose emission limitations on applicable during startup and shutdown. Those industrial, commercial and institutional boilers at various subcategories of sources to revisions did not, however, alter the basic structure area sources under 40 CFR part 63, subpart JJJJJJ. address HAP emissions. To do so, the of the emission limitations as numerical limitations, 166 See MATS rule, requirements during startup, EPA developed emission limitations to or numerical limitations with work practice shutdown and malfunction, 77 FR 9304 at 9370 components during startup and shutdown, (February 16, 2012). address the relevant pollutants using a depending upon the source category and the 167 See Area Source Boiler rule, notice of final pollutants at issue. See 79 FR 68777 (November 19, action on reconsideration, periods of startup and 168 See February 2013 proposal, 78 FR 12459 at 2014). shutdown, 78 FR 7487 at 7496 (February 1, 2013). 12488 (February 22, 2013). 170 78 FR 7487 (February 1, 2013).

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subject to the requirement to be presumably were submitted to the EPA provisions in the way advocated by the ‘‘continuous.’’ as emission limitations, were intended commenters. Comment: Section 110(a)(2)(A) to limit emissions on a continuous basis First, section 110(a)(2)(A) explicitly requires states to have SIPs that include or were otherwise included to ensure requires that SIPs must contain emission limitations for purposes of that the SIP contained continuous emission limitations as necessary to imposing restrictions on sources of emission limitations. All of the SIP meet various CAA requirements. emissions in order to attain and provisions at issue in this action Section 302(k) requires that such maintain the NAAQS and to meet other provide automatic or discretionary emission limitations must limit ‘‘the CAA requirements. Some commenters exemptions from emission limitations quantity, rate, or concentrations of noted that, in addition to ‘‘emission that are formulated as restrictions on the emissions of air pollutants on a limitations,’’ section 110(a)(2)(A) also ‘‘quantity, rate, or concentration’’ of continuous basis.’’ Moreover, section explicitly refers to ‘‘other control emissions from affected sources, just as 302(k) reiterates that the term measures, means, or techniques.’’ section 302(k) describes the purpose of ‘‘continuous emission limitation’’ also Unlike the term ‘‘emission limitation,’’ an emission limitation. Longstanding specifically includes ‘‘any requirement which is defined in section 302(k), EPA regulations applicable to SIPs relating to the operation or maintenance commenters contended that these ‘‘other require that states have a control of a source to assure continuous control[s]’’ need not be continuous. strategy to provide for attainment and emission reduction.’’ Lest there be Accordingly, these commenters argued maintenance of the NAAQS.171 The doubt, section 302(m) provides a that emission controls in SIP provisions required ‘‘control strategy’’ is defined to definition for the related term ‘‘means of that either contain, or are subject to, be the combination of measures emission limitation’’ as ‘‘a system of SSM exemptions can be viewed merely including, but not limited to, ‘‘emission continuous emissions reduction as examples of these ‘‘other control limitations,’’ ‘‘emission control (including the use of specific technology measures, means, or techniques’’ that measures applicable to in use motor or fuels with specified pollution are validly included in SIPs and that do vehicles’’ and ‘‘transportation control characteristics).’’ In the Sierra Club v. not have to limit emissions from sources measures’’ listed in section 108(f).172 Johnson decision, the D.C. Circuit on a continuous basis. Specifically, The regulatory definition of ‘‘emission concluded that the statutory definition these commenters asserted that the limitation’’ applicable to SIP provisions of ‘‘emission limitation’’ in section plain text of section 110(a)(2)(A) does tracks the statutory definition of section 302(k) precludes exemptions for not require SIPs to include only 302(k) and notably also does not define emissions during SSM events because emission limitations but rather requires the term to allow exemptions for such exemptions are inconsistent with that SIPs include ‘‘emission emissions during SSM events.173 To the the requirement for continuous limitations,’’ ‘‘other control measures, EPA’s knowledge, none of the specific controls.174 Given the emphasis that the means, or techniques,’’ or a mixture SIP provisions that contain or that are statute places on the requirement that thereof. Furthermore, according to some subject to the automatic or discretionary sources be subject to continuous of these commenters, an interpretation exemptions at issue in this SIP call emission controls, and given the of section 110(a)(2)(A) that requires all action were developed by the states emphasis that courts have placed on the SIP provisions to be ‘‘emission with the intention or expectation that requirement that sources be subject to limitations,’’ and thus subject to the absent the exemption they would not continuous controls on their emissions, requirement that they be continuous, apply at all times when the source is in the EPA believes that it is illogical that would render the ‘‘other control’’ operation; i.e., they impose restrictions the statutory requirement for continuous language in the statute superfluous. on emissions that were intended to controls on sources could be subverted Response: The EPA agrees with the apply continuously when the source is merely by the act of labeling a given SIP commenters that SIPs do not have to be emitting pollutants. Logically, the states provision a ‘‘control measure’’ rather composed solely of numerical emission intended the emission limitations to than an ‘‘emission limitation.’’ The limitations, that SIPs can contain other impose limits that apply continuously at commenters’ argument that if a given forms of controls in addition to all times when the affected sources are SIP provision contains an SSM emission limitations and that certain emitting pollutants or else there would exemption, it is merely a ‘‘control forms of controls other than emission have been no impetus to include any measure[ ], mean[ ], or technique[ ]’’ limitations may not need to apply to exemptions for emissions during SSM reduces the explicit requirement for sources continuously. However, the events. continuous controls on emissions to a EPA disagrees with the commenters’ However, even if the EPA were to semantic exercise. conclusion that the mere act of labeling accept the commenters’ premise Second, the EPA believes that the certain SIP provisions as ‘‘control arguendo—that inclusion of an SSM commenters’ reading of the statute to measures, means, or techniques’’ rather exemption in a given SIP provision permit SIP provisions to contain an than as ‘‘emission limitations’’ can be a turns ‘‘emission limitations’’ into ‘‘other SSM exemption by virtue of what it is means to circumvent the requirement control measures, means, or labeled is incorrect if taken to its logical that emission limitations must regulate techniques,’’ this would not be a extreme. The commenters’ sources continuously. To the extent that reasonable reading of the requirements interpretation of section 110(a)(2)(A) there is any ambiguity in the of section 110(a)(2)(A) and section would theoretically allow a SIP to requirements of section 110(a)(2), it is 302(k) for several reasons. To the extent contain no emission limitations not reasonable to interpret the statute to that either section 110(a)(2)(A) or whatsoever, merely a collection of allow the explicit requirement that section 302(k) is ambiguous with requirements labeled ‘‘control emission limitations must be respect to this point, the EPA does not measures’’ so that sources can be continuous to be negated in this fashion. interpret the CAA to allow exemptions excused from having to limit emissions As an initial matter, the SIP for emissions during SSM events in SIP on a continuous basis. This result is provisions that contain automatic or contrary to judicially approved EPA discretionary exemptions during SSM 171 See, e.g., 40 CFR 51.100. events at issue in this SIP call excuse 172 See, e.g., 40 CFR 51.100(n). 174 See Sierra Club v. Johnson, 551 F.3d 1019, compliance with requirements that 173 See 40 CFR 51.100(z). 1027–28 (citing CAA sections 112(d)(2), 302(k)).

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interpretations of prior versions of the Thus, the commenters are in error in emission limitations that do not need to CAA as requiring all SIPs to include their belief that the EPA’s reading of the apply continuously. Accordingly, these continuously applicable emission statute to require that SIPs contain commenters asserted that SIP provisions limitations and only requiring ‘‘other’’ emission limitations that apply that are rendered noncontinuous by additional controls ‘‘as may be continuously ignores the other forms of inclusion of exemptions for emissions necessary’’ to satisfy the NAAQS.175 potential measures that section during SSM events are still legally valid Additionally, this result is contrary to 110(a)(2)(A) authorizes. ‘‘emission limitations’’ because they fall legislative history of the 1990 Clean Air Section 110(a)(2) requires SIPs to within the second category. Other Act Amendments, which indicates that include enforceable emission commenters separately contended that in slightly revising this portion of limitations and other controls ‘‘as under section 302(k), SIP provisions section 110(a)(2)(A), Congress intended necessary or appropriate to meet the imposing requirements ‘‘relating to the to merely ‘‘combine and streamline’’ applicable requirements’’ of the CAA. operation or maintenance of sources’’ do previously existing SIP requirements Regardless of whether commenters’ not need to be continuous, unlike those into a single provision, not to vitiate semantic labeling arguments are valid in imposing requirements that limit ‘‘the statutory requirements concerning the abstract, they are not correct with quantity, rate, or concentration of emission limitations.176 respect to the fundamental CAA emissions or air pollutants.’’ Finally, the EPA’s interpretation of requirements for SIPs relating to Response: The EPA disagrees with the the requirements of section 110(a)(2) continuous emission limitations. The commenters’ view that section 302(k) does not render the ‘‘other control’’ automatic or discretionary exemptions establishes two discrete categories of language in the statute superfluous as for emissions during SSM events in the emission limitations, only one of which claimed by the commenters. In addition SIP provisions at issue in this SIP call must reduce continuous emissions on a to emission limitations, the EPA authorize exemptions from statutorily continuous basis. The EPA interprets that section to allow other required emission limitations. To the acknowledges that the text of section ‘‘control measures, means or extent that such a SIP provision would 302(k) is ambiguous with respect to this techniques’’ as contemplated by the functionally or legally exempt sources point, but the Agency does not agree statute. For example, the EPA’s from regulation during SSM events, the with the commenters’ interpretation of regulations implementing SIP SIP provision fails to be a continuously the statute. The statutory text of section requirements explicitly enumerate nine applicable enforceable emission 302(k) begins with a catch-all definition separate types of measures that states limitation as required by the CAA. The of the term ‘‘emission limitation’’ as ‘‘a may include in SIPs.177 This list of nine fact that a SIP may also contain ‘‘other requirement established by the State or different forms of potential SIP control[s]’’ as advocated by the the Administrator which limits the provisions to reduce emissions varies commenters does not negate the quantity, rate, or concentration of statutory requirement that emission emissions of air pollutants on a broadly, from measures that ‘‘impose 179 emission charges or taxes or other limitations must apply continuously. continuous basis ....’’ The EPA g. Comments that the definition of economic incentives or disincentives’’ believes that the rest of the first ‘‘emission limitation’’ in section 302(k) to ‘‘changes in schedules or methods of sentence in section 302(k), beginning does not require that all forms of operation of commercial or industrial with the word ‘‘including,’’ is best read emission limitations must apply facilities’’ to ‘‘any transportation control as a list of examples of types of continuously. measure including those transportation measures that satisfy this general Comment: Section 110(a)(2)(A) definition. In other words, the measures listed in section 108(f).’’ The requires that SIPs must contain remainder of the sentence provide EPA made clear that this list is not all- emission limitations, and section 302(k) examples of types of SIP provisions that inclusive. In addition, the EPA has, defines the term ‘‘emission limitation’’ could be used to limit emissions on a when appropriate, approved SIP to mean a limit on emissions from a continuous basis, including any design provisions that impose various forms of source that applies continuously. A standard, equipment standard, work emissions controls that are not, by number of commenters disagreed that practice standard or operational definition, emission limitations.178 section 302(k) requires that all standard promulgated under the CAA, ‘‘emission limitations’’ have to be as well as ‘‘any requirement relating to 175 See, e.g., Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1153 (9th Cir. 1975). The current version ‘‘continuous.’’ The commenters argued the operation or maintenance of a of section 110(a)(2)(A) is admittedly worded that section 302(k) establishes two source to assure continuous emission differently than the 1970 version. However, for distinct categories of emission reduction.’’ However, each of these purposes of these commenters the critical limitations: (1) Requirements that forms of emission limitation would be distinction is not that Congress changed the location of the word ‘‘necessary’’ but rather that ‘‘limit[ ] the quantity, rate, or required to apply at all times, or be Congress changed the subject that ‘‘necessary’’ concentration of emissions of air required to apply in combination at all modifies—and thus the entire scope of pollutants on a continuous basis, times, in order to meet the fundamental 110(a)(2)(A)—from satisfying the NAAQS to including any requirement relating to requirement that the emission limitation meeting ‘‘applicable requirements’’ of the entire CAA. the operation or maintenance of a serves to limit emissions from the 176 See, e.g., S. Rept. 101–228, at 20 (noting that source to assure continuous emission affected sources continuously. Thus, the the structure of section 110(a)(2)(A) as it appears reduction,’’ and (2) requirements EPA interprets the term ‘‘emission today reflects congressional intent to ‘‘combine and constituting a ‘‘design, equipment, work limitation’’ to permit emission streamline’’ previously existing SIP requirements limitations that are composed of a into a single provision). practice or operational standard 177 See 40 CFR 51.100(n). promulgated under this chapter.’’ These combination of numerical limitations, 178 See, e.g., 71 FR 7683 (February 14, 2006) commenters claimed that only the first technological control requirements and/ (approving as BACM the use of ‘‘conservation purported category is emission or work practice requirements, so long management practices’’ to control fugitive dust limitations that must be continuous and as they are components of an emission emissions from agricultural sources, including limitation that applies continuously. techniques that limit emissions only during certain that the second purported category is activities or times); 68 FR 56181 (September 30, This interpretation accords with 2003) (approving as BACM an ‘‘episodic wood of wood-burning stoves based on predicted burning curtailment’’ program that restricts the use particulate matter concentrations). 179 CAA section 302(k).

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statutory context,180 the legislative limitations that are reasonable and Ruckelshaus 185 and Essex Chemical history regarding the definition of achievable by sources, so long as they Corp. v. Ruckelshaus 186 require SIPs to ‘‘emission limitation,’’ 181 judicial are also consistent with the applicable include exemptions for emissions interpretations of section 302(k) 182 and legal requirements for that type of during SSM events. As an initial matter, the EPA’s definition of ‘‘emission provision. The EPA acknowledges that these cases predate amendments to the limitation’’ in its SIP regulations.183 in some cases, emission limitations may CAA that expressly defined ‘‘emission Accordingly, the EPA’s interpretation of need to include alternative numerical limitation’’ as a requirement that section 302(k) is reasonable. limitations, technological controls or continuously limits emissions. The EPA also disagrees with the work practices during some modes of Furthermore, even accepting these commenters who contended that the operation, such as startup and commenters’ interpretations of those third clause of section 302(k) authorizes shutdown. As explained in detail in the cases (which as explained below, EPA exemptions for emissions during SSM February 2013 proposal and in this does not), any purported holdings to events in emission limitations. The action, the EPA interprets the CAA to that effect have been further eroded by commenters argued that requirements allow SIP provisions to include different more recent case law from the D.C. ‘‘relating to the operation or numerical limitations or other control Circuit and other courts. Most maintenance of sources’’ do not have to requirements as components of a importantly, the Sierra Club v. Johnson be continuous. The EPA believes that continuously applicable emission decision has reiterated that emission this reading of the statute is simply in limitation, so long as the SIP provision limitations must apply continuously in error, because section 302(k) on its face meets all other applicable requirements. order to comply with section 302(k), provides that these requirements must However, the EPA disagrees with these and the logic of NRDC v. EPA decision ‘‘assure continuous emission commenters’ conclusions that the need indicates that affirmative defense reduction.’’ 184 for ‘‘reasonable’’ and ‘‘achievable’’ h. Comments that exemptions or provisions are not appropriate because emission limitations provides a legal they purport to alter the jurisdiction of affirmative defenses are not only not justification for exemptions or the courts.187 prohibited, but are actually required by affirmative defenses for excess the CAA because they are necessary to emissions during SSM events. In addition to these more recent legal make an emission limitation First, many of the commenters developments, however, the two earlier ‘‘reasonable’’ or ‘‘achievable’’ for erroneously presupposed that an D.C. Circuit cases highlighted by sources that cannot comply during SSM emission limitation must continuously commenters simply did not hold what events. control emissions at the same rate, commenters claim that they held. With Comment: Commenters argued that quantity, or concentration at all times. respect to the Portland Cement some emission limitations currently in For sources or source categories that Association decision, commenters SIPs are only ‘‘reasonable’’ or cannot comply with otherwise selectively quoted from the case for the technologically ‘‘achievable’’ because applicable emission limitations during proposition that the D.C. Circuit had they include exemptions or affirmative certain modes of operation, such as ‘‘acknowledged’’ that malfunctions are defenses applicable to emissions during startup and shutdown, the state may an inescapable aspect of industrial life SSM events. According to these elect to develop alternative emission and that EPA must make allowances for commenters, without exemptions or limitations applicable during those malfunctions when promulgating affirmative defenses to excuse sources events as a component of the SIP standards. The full sentence from the from compliance with the limits during provision. The EPA has provided opinion, however, makes clear that the SSM events, these emission limitations recommended criteria for states to use D.C. Circuit was merely summarizing would not be reasonable or achievable in developing appropriate alternative the ‘‘concern of manufacturers,’’ not as required by law. To support these emission limitations. Appropriate stating the court’s own position.188 To contentions, commenters cited case law alternative emission limitations would the contrary, the EPA believes that from the early 1970s to argue that the ensure the existence of requirements Portland Cement stands for the broader CAA requires emission limitations in that limit the quantity, rate or proposition that a system incorporating SIP provisions to include exemptions or concentration of pollutants from the flexibility is reasonable and consistent affirmative defenses for SSM events. affected sources on a continuous basis, with the overall intent of the CAA, and Response: The EPA agrees that SIP while also providing differing the EPA merely ‘‘may’’ take such provisions should impose emission limitations tailored specifically to limit flexibility into account.189 As relevant emissions during specified modes of 180 See, e.g., CAA section 302(m) (defining to this action, the flexibility provided source operation. As long as those states to ensure continuous controls by ‘‘means of emission limitation’’ as a ‘‘system of differing limitations are components of continuous emission reduction’’). developing alternative emission 181 See e.g., H.R. Rep. 95–294, at 92 (1977) a continuously applicable emission limitations is fully consistent with that (explaining that the definition of ‘‘emission limitation that meets other applicable view of the CAA. SIP provisions that limitation,’’ like the definition of ‘‘standard of substantive requirements (e.g., is RACT include alternative emission limitations performance,’’ was intended to ‘‘ma[ke] clear that for stationary sources in nonattainment constant or continuous means of reducing provide the sort of ‘‘limited safety areas) and that is legally and practically emissions must be used to meet th[ose] valve’’ contemplated by the courts that requirements’’); S. Rep. 95–127, at 94 (explaining enforceable, then such alternative can serve to make SIP emission that the definition of ‘‘emission limitation’’ was emission limitations are valid. States are intended to ‘‘clarify the committee’s view that the not required to create such alternative limitations more achievable without only acceptable basic strategy is one based on authorizing complete exemptions for continuous emission control,’’ rather than emission limitations, but to do so is an ‘‘unacceptable’’ ‘‘[i]ntermittent controls or acceptable approach. dispersion techniques . . . .’’). Second, these commenters pointed to 185 486 F.2d 375 (D.C. Cir. 1973). 182 See, e.g., Sierra Club v. Johnson, 551 F.3d no provision of the CAA requiring or 186 486 F.2d 427 (D.C. Cir. 1973). 187 1019, 1027–28 (D.C. Cir. 2008). allowing exemptions or affirmative See Sierra Club v. Johnson, 551 F.3d 1019 183 See 40 CFR 51.100(n) (defining ‘‘emission (D.C. Cir. 2008); NRDC v. EPA, 749 F.3d 1055 (D.C. limitation’’ as a requirement that limits emissions defenses for SSM events. Instead, they Cir. 2014). on a continuous basis). contend that D.C. Circuit opinions in 188 Portland Cement Ass’n, 486 F.2d at 398. 184 See CAA section 302(k). Portland Cement Association v. 189 Id. at 399.

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emissions during SSM events in is not what the court said about the recommended criteria in this final violation of statutory requirements.190 circumstances peculiar to the EPA’s action (see section VII.B.2 of this Commenters also cited Essex development of those specific standards document). The EPA agrees that neither Chemical Corp. for the proposition that but rather is the court’s holding that section 110(a)(2)(A) nor section 302(k) SSM exemptions are necessary to ensure standards of performance can be inherently requires that SIP emission that standards are reasonable. This court ‘‘achievable’’ even if there is no facility limitations must be expressed decision, however, also did not hold ‘‘currently in operation which can at all numerically. Furthermore, section that emission limitations must provide times and under all circumstances meet 302(k) does not itself require imposition exemptions or affirmative defenses for the standards . . . .’’ 194 Thus, the of numerical limitations or foreclose the excess emissions during SSM events. To decision supports the EPA’s conclusion use of higher numerical levels, specific the contrary, the petitioners’ complaint that the CAA requires appropriately technological controls or work practices in Essex Chemical Corp. was that EPA drawn emission limitations that apply during certain modes of operation. had ‘‘fail[ed] to provide that lesser on a continuous basis. As explained in Although some CAA programs may standards, or no standards at all, should section IV of this document, SIP require or impose a presumption that apply when the stationary source is provisions also cannot include the emission limitations be expressed experiencing startup, shutdown, or affirmative defenses advocated by numerically, the text of section mechanical malfunctions through no commenters, because those are 110(a)(2)(A) and section 302(k) does not fault of the manufacturer.’’ 191 It was inconsistent with CAA provisions expressly state a preference for emission these variant provisions that, in the concerning the jurisdiction of the limitations that are in all cases court’s opinion, ‘‘appear[ed] necessary’’ courts. numerical in form.195 Rather, as many to ensure that the standards before it i. Comments that the EPA is requiring commenters pointed out, the critical were reasonable.192 Again, the EPA that all SIP emission limitations must be aspect of an emission limitation in believes that emission limitations in SIP ‘‘numerical’’ at all times and set at the general is that it be a ‘‘requirement provisions may include alternative same numerical level at all times. . . . which limits the quantity, rate, or emission limitations that can provide Comment: Many commenters on the concentration of emissions of air those ‘‘lesser standards’’ that apply February 2013 proposal evidently pollutants on a continuous basis during startup and shutdown events believed that the EPA was proposing an ... .’’196 Accordingly, although other consistent with the court’s opinion but interpretation of the term ‘‘emission regulatory requirements may also apply, also ensure that emissions are limitation’’ under section 302(k) that a non-numerical design standard, continuously limited as required by the would requires all SIP provisions to equipment standard, work practice 1977 CAA Amendments defining impose numerical emission limits, and standard or operational standard could ‘‘emission limitation.’’ that such limits must be set at the same theoretically meet the definition of As a legal matter, the court in Essex numerical level at all times. These ‘‘emission limitation’’ for purposes of Chemical was reviewing a specific commenters argued that numerical section 302(k) if it continuously limited ‘‘never to be exceeded’’ standard for emission limitations are not required by the quantity, rate or concentration of air new and modified sources and the text of section 302(k). For example, pollutants.197 By contrast, if a non- addressed only whether the EPA’s commenters pointed to section 302(k)’s numerical requirement does not itself failure to provide some form of use of ‘‘work practice or operational (or in combination with other flexibility during SSM events was standard[s]’’ as evidence that an components of the emission limitation) supported by the record; 193 the court emission limitation may be composed of limit the quantity, rate or concentration was not interpreting whether the CAA more than merely numerical criteria. of air pollutants on a continuous basis, inherently required such exemptions These commenters also reiterated their then the non-numerical standard (or (rather than alternative limits) view that section 302(k) allows for or overarching requirement) does not meet regardless of future developments in requires alternative limits during the statutory definition of an emission technology. Accordingly, the D.C. periods of SSM, including non- limitation under section 302(k). Circuit ultimately remanded the numerical alternative limits such as Finally, the EPA does not believe that challenged standards to the EPA for work practice or operational standards. section 110(a)(2)(A) or section 302(k) reconsideration, not because SSM Response: At the outset, the EPA mandates that an emission limitation be exemptions are mandatory but rather notes that it did not intend to imply that composed of a single, uniformly because of comments made by the EPA all emission limitations in SIP applicable numerical emission Acting Administrator and deficiencies provisions must be expressed limitation. As the EPA stated in the identified in the administrative record numerically, or that they must be set at February 2013 proposal, ‘‘[i]f sources in with respect to ‘‘never to be exceeded’’ the same numerical level for all modes fact cannot meet the otherwise limits for those specific standards. In of source operation. To the contrary, the applicable emission limitations during short, the Essex Chemical court did not EPA intended to indicate that states may planned events such as startup and hold that the CAA ‘‘requires’’ emission elect to create emission limitations that shutdown, then an air agency can limitations to include exemptions for include alternative emission limitations develop specific alternative emissions during SSM events as that apply during certain modes of suggested by commenters. source operation, such as startup and 195 Numerical requirements or preferences for Furthermore, the EPA notes that the shutdown. This was the reason for some emission limitations flow from substantive most salient legal holding of Essex inclusion of the recommended criteria requirements of specific CAA programs, which are Chemical with respect to achievability incorporated into section 110(a)(2)(A) by the for states to develop appropriate requirement that SIPs ‘‘include enforceable alternative emission limitations emission limitations . . . as may be necessary or 190 Id. (citing International Harvester, 478 F.2d applicable during startup and shutdown appropriate to meet the applicable requirements of’’ 615, 641 (D.C. Cir. 1973)). in section VII.A of the February 2013 the CAA. CAA section 110(a)(2)(A). 191 Essex Chem. Corp v. Ruckelshaus, 486 F.2d at 196 See, e.g., id., section 112(h)(4). 433 (emphasis added). proposal. The EPA has provided similar 197 For example, emission limitations must meet 192 See id. the requirements of various substantive provisions 193 Id. (‘‘the record does not support the ‘never to 194 Essex Chem. Corp v. Ruckelshaus, 486 F.2d of the CAA and must be legally and practically be exceeded’ standard currently in force’’). 427, 433 (D.C. Cir. 1973). enforceable.

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requirements that apply during such numerical limitations, specific control history from the 1977 CAA periods, so long as they meet other technology requirements and/or work Amendments states that Congress added applicable CAA requirements.’’ 198 As practice requirements, and regardless of section 302(k)’s definition of ‘‘emission explained in the EPA’s response in whether the emission limitation is static limitation’’ to: section VII.A.3 of this document or variable. For example, so long as the . . . ma[ke] clear that constant or continuous regarding the meaning of the statutory SIP provision meets other applicable means of reducing emissions must be used to term ‘‘continuous,’’ the critical aspect requirements, it may impose different meet these requirements. By the same token, for purposes of section 302(k) is not numerical limitations for startup and intermittent or supplemental controls or whether the emission limitation is shutdown. other temporary, periodic, or limited systems expressed as a static versus variable The EPA also agrees that the text of of control would not be permitted as a final numerical limitation but rather whether section 302(k) does not require states to means of compliance.203 as a whole it constitutes a requirement impose emission limitations that Although this legislative history that limits emissions on a continuous include a static, inflexible standard. demonstrates congressional intent that basis. Furthermore, any emission Rather, the term ‘‘emission limitation’’ any ‘‘emission limitation’’ would limitation must also meet all other is merely defined as a ‘‘requirement require limits on emissions at all times, applicable CAA requirements established by the State or the this history does not necessarily concerning stringency and Administrator which limits the indicate that the emission limitation enforceability. quantity, rate, or concentration of must consist of a single static numerical j. Comments that an emission emissions of air pollutants on a limitation. Accordingly, this legislative limitation can be ‘‘continuous’’ even if continuous basis. . . .’’ The continuous history is consistent with the EPA’s it has different numerical limitations limits imposed by emission limitations view that section 302(k) requires applicable during some modes of source are a fundamental distinction between continuous limits on emissions and that operation or has a combination of emission limitations and the other variable (albeit still continuous) limits numerical emission limitations and control measures, means or techniques on emissions can qualify as an emission specific control technologies or work that may also limit emissions.199 The limitation for purposes of section practices applicable during other modes text of section 302(k), however, does not 302(k). of operation. distinguish between a variable or static Finally, although the EPA agrees with Comment: Several commenters argued ‘‘requirement’’ that continuously limits these commenters’ conclusion, the EPA that an emission limitation can be emissions—all that is required is that does not agree with these commenters’ ‘‘continuous’’ under section 302(k) even the emissions are limited on a view that practical concerns require if it provides different substantive continuous basis. states in all cases to establish alternative requirements applicable during SSM This interpretation is consistent with emission limitations for modes of events. One commenter illustrated this prior EPA interpretations of section operation such as startup and shutdown position with a hypothetical: 302(k), as well as relevant case law. In within any continuously applicable [W]hile Section 302 requires ‘‘emission Kamp v. Hernandez, the U.S. Court of emission limitation. Principles of limits’’ to be ‘‘continuous,’’ it does not Appeals for the Ninth Circuit (Ninth cooperative federalism incorporated specify . . . that the same ‘‘emission limit’’ Circuit) upheld the EPA’s interpretation into section 110 allow states great must apply at all times. That is, if a state of ‘‘continuous’’ in section 302(k), as leeway in developing SIP emission chooses to require sources to comply with a requiring that ‘‘some limitation on limitations, provided those limitations 40% opacity limit during steady-state emissions, although not necessarily the operations, the Act does not then require the comply with applicable legal state to apply that 40% limit at all times, same limitation, is always imposed’’ on requirements.204 States are thus not 200 including startup, shutdown and malfunction the source. More recently, the D.C. required to establish alternative events. Circuit favorably cited Kamp when emission limitations for any sources holding that section 302(k) requires Commenters pointed to a number of during startup and shutdown, but they emission standards to limit emissions sources as justification for this position, may elect to do so. Neither the on a continuous basis and precludes including the text of section 302(k), definition of ‘‘emission limitation’’ in exemptions for emissions during SSM relevant case law, legislative history of section 302(k) nor the requirements of events.201 the 1977 CAA Amendments, prior EPA section 110(a)(2)(A) explicitly require Legislative history confirms that interpretations, and practical concerns. states to develop emission limitations Response: The EPA agrees with these Congress was primarily concerned that that include alternative emission commenters’ conclusion that an there be constant or continuous means limitations for periods of SSM, just as ‘‘emission limitation’’ under section of reducing emissions—not that the they do not explicitly preclude states 302(k) does not need to be expressed as nature of those controls could not be from doing so. a static, inflexible limit on emissions. different during different modes of operation.202 For example, legislative Rather, a SIP provision qualifying as an requirements’’); S. Rep. 95–127, at 94 (explaining ‘‘emission limitation’’ consistent with that the definition of ‘‘emission limitation’’ was 199 See CAA section 110(a)(2)(A). intended to ‘‘clarify the committee’s view that the section 302(k) must merely limit ‘‘the 200 Kamp v. Hernandez, 752 F.2d 1444, 1452–53 only acceptable basic strategy is one based on quantity, rate, or concentration’’ of (9th Cir. 1985) (citing Chevron, U.S.A., Inc. v. continuous emission control,’’ rather than emissions, and must do so ‘‘on a Natural Res. Def. Council, 467 U.S. 837 (1984)) ‘‘unacceptable’’ ‘‘[i]ntermittent controls or continuous basis.’’ The critical aspect (upholding EPA’s ‘‘broader definition of dispersion techniques . . . .’’). for purposes of section 302(k) is that the ‘continuous’ ’’ under section 302(k)). 203 H.R. Rep. 95–294, at 92 (1977), as reprinted in 201 Sierra Club v. Johnson, 551 F.3d 1019, 1977 U.S.C.C.A.N. 1077, 1170); Sierra Club v. SIP provision impose limits on 1027–28 (D.C. Cir. 2008) (quoting Kamp, 752 F.2d Johnson, 551 F.3d at 1027 (quoting the same); Kamp emissions on a continuous basis, at 1452). v. Hernandez, 752 F.2d at 1453–54 (quoting the regardless of whether the emission 202 See, e.g., H.R. Rep. 95–294, at 92 (1977) same). limitation as a whole is expressed (explaining that the definition of ‘‘emission 204 As discussed above and elsewhere in this limitation,’’ like the definition of ‘‘standard of document, those requirements include satisfying numerically or as a combination of performance,’’ was intended to ‘‘ma[ke] clear that the definition of ‘‘emission limitation’’ under CAA constant or continuous means of reducing section 302(k), and being ‘‘enforceable’’ in 198 78 FR 12459 at 12471. emissions must be used to meet th[ose] accordance with section 110(a)(2)(A).

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k. Comments that an emission time when a source is not subject to any intermittent controls or, even more limitation can be ‘‘continuous’’ even if requirement that limits emissions, the narrowly, only dispersion techniques. it includes periods of exemptions from requirements limiting the source’s While legislative history of the 1977 the emission limitation. emissions by definition cannot do so Amendments discusses at length the Comment: Commenters asserted that a ‘‘on a continuous basis.’’ Such a source concerns associated with these types of requirement limiting emissions can be would not be subject to an ‘‘emission controls, section 302(k) was not ‘‘continuous’’ even if a SIP provision limitation,’’ as that term is defined intended to merely prevent the narrow includes periods of exemption from that under section 302(k). The same problem of intermittent controls. To the limit. For example, some commenters principle applies even for ‘‘brief’’ contrary, the House Report states that contended that SSM exemptions only exemptions from limits on emissions, under section 302(k)’s definition of excuse compliance with emission because such exemptions nevertheless emission limitation, ‘‘intermittent or limitations for a ‘‘short duration,’’ or render the emission limitation supplemental controls or other ‘‘brief’’ period of time, and that these noncontinuous. temporary, periodic, or limited systems purportedly ephemeral interruptions Second, the EPA disagrees with of control would not be permitted as a should not be viewed as rendering the commenters’ interpretation of the D.C. final means of compliance.’’ 212 requirement noncontinuous. Other Circuit’s opinion in Sierra Club. While In explaining congressional intent commenters contended that the EPA the court’s ultimate decision was based behind adopting a statutory definition of misinterpreted portions of the D.C. on ‘‘sections 112 and 302(k) . . . read ‘‘emission limitation,’’ the House Report Circuit’s opinion in Sierra Club v. together,’’ 208 the court’s analysis of articulated a rationale broader than Johnson,205 interpreting section 302(k). what makes a standard ‘‘continuous’’ would apply if Congress had merely Specifically, this group of commenters was based on section 302(k) alone.209 intended to prohibit the tall stacks and claimed that because the holding of that Although the precise components of an dispersion techniques that commenters case was based on a combined reading emission limitation or standard may claim were targeted: ‘‘Each source’s of sections 112 and 302(k), the court’s expand depending on which other prescribed emission limitation is the interpretation of the word ‘‘continuous’’ provisions of the CAA are applicable, fundamental tool for assuring that in section 302(k) does not extend the bedrock definition for what it means ambient standards are attained and outside the context of section 112. This to be an ‘‘emission limitation’’ under maintained. Without an enforceable included one commenter who section 302(k) does not. Congress emission limitation which will be suggested, in a one-sentence footnote, appeared to share the EPA’s view that complied with at all times, there can be that ‘‘[i]n the cooperative-federalism section 302(k) provides a bedrock no assurance that ambient standards context’’—presumably of section 110— definition of ‘‘emission limitation’’ will be attained and maintained.’’ 213 By ‘‘the standard of flexibility that Congress applicable ‘‘to all emission limitations contrast, Congress criticized limitations gave the States with respect to selecting under the act, not just to limitations structured in ways that could not the elements of their SIPs is not under sections 110, 111, or 112 of the ‘‘provide assurances that the emission necessarily the same standard Congress act.’’ 210 Accordingly, the D.C. Circuit’s limitation will be met at all times,’’ or set to govern EPA’s responsibility to interpretation of section 302(k) applies that would sometimes allow the establish the NAAQS or section 112 equally in the context of SIP provisions ‘‘emission limitation [to] be exceeded, standards.’’ Still other commenters developed by states as in the context of perhaps by a wide margin ....’’214 further argued that the EPA MACT standards developed by the EPA, Such flaws ‘‘would defeat the remedy mischaracterized legislative history even if additional requirements may be provision provided by section 304 of the discussing ‘‘continuous’’ in section different.211 act which allows citizens to assure 302(k). According to these commenters, Finally, the EPA rejects commenters’ compliance with emission limitations the context of legislative history on contention that section 302(k)’s and other requirements of the act.’’ 215 section 302(k) indicates that Congress legislative history indicates that use of Exemptions for emissions during SSM did not intend for the word the word ‘‘continuous’’ in the definition events have the same effects.216 ‘‘continuous’’ to be given its plain of ‘‘emission limitation’’ was merely In adopting section 302(k)’s definition meaning but rather intended to use intended to prevent the use of of ‘‘emission limitation,’’ Congress did ‘‘continuous’’ in relation only to specific not merely intend to prohibit the use of types of intermittent controls. 208 Sierra Club, 551 F.3d at 1027. intermittent controls as final Response: The EPA disagrees with 209 See id. (quoting H.R. Rep. 95–294, at 92 compliance strategies—much less (1977), as reprinted in 1977 U.S.C.C.A.N. 1077, intermittent controls as narrowly these commenters. First, commenters’ 1170); see also Kamp v. Hernandez, 752 F.2d at interpretation would contravene the 1453–54 (quoting the same and coming to the same defined by commenters to mean only plain meaning of ‘‘continuous.’’ Section conclusion). dispersion techniques and certain ‘‘tall 302(k) defines ‘‘emission limitation’’ as 210 See H.R. 95–294, at 92 (1977); see also section stacks.’’ Rather, Congress intended to a requirement that ‘‘limits the quantity, 302 (stating that the definitions appearing therein eliminate the fundamental problems apply ‘‘[w]hen used in this chapter’’). rate, or concentration of emissions of air 211 The fact that CAA section 110 incorporates 212 H.R. 95–294, at 92 (emphasis added). pollutants on a continuous principles of cooperative federalism does not 213 basis....’’206 Although the word inevitably mean that the definition of ‘‘emission Id. (emphasis added). The Senate Report expressed a similar sentiment. See S. Rep. No. 95– ‘‘continuous’’ is not separately defined limitation’’ under section 302(k) changes depending on whether it is applied in the context of section 127, at 94–95 (1977) (explaining that the definition in the Act, its plain and unambiguous 110 versus section 112. Accordingly, in the context of ‘‘emission limitation’’ was intended ‘‘to clarify meaning is ‘‘uninterrupted.’’ 207 of judicial interpretation of a statute, the U.S. the committee’s view that the only acceptable basic Accordingly, to the extent that a SIP Supreme Court has held that judges cannot ‘‘give strategy [for emission limitations in SIPs] is one based on continuous emission control’’). provision provides for any period of the same statutory text different meanings in different cases.’’ Clark v. Martinez, 543 U.S. 371, 214 See H.R. 95–294, at 92. 386 (2005). The EPA believes that the text and 215 See id. 205 551 F.3d 1019 (D.C. Cir. 2008). legislative history of section 302(k) evince 216 See, e.g., NRDC v. EPA, 749 F.3d 1055, 1064 206 CAA section 302(k). congressional intent to consistently apply the (D.C. Cir. 2014) (holding that an affirmative defense 207 See Webster’s Third New International definition of ‘‘emission limitation’’ under section for excess emissions during malfunctions Dictionary 493–94 (Phillip Babcock Gove ed., 302(k) rather than to develop an inconsistent contradicts the requirement that an emission Merriam-Webster 1993) (defining ‘‘continuous’’). interpretation peculiar to section 110. limitation be ‘‘continuous’’).

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that were illustrated by use of those emission limitations are required. question would not have developed and controls.217 SSM exemptions and According to these commenters, that submitted them, and the EPA would not affirmative defenses raise many of the interpretation is a vestige of the 1970 have approved them, unless the state same problems, and addressing those CAA and was foreclosed by textual and the EPA considered those emission problems through this action fully changes in the 1977 CAA Amendments limitations fulfilled a CAA requirement accords with section 302(k)’s legislative or, alternatively, the 1990 CAA in the first instance. However, the history. Amendments. automatic and discretionary exemptions l. Comments that the ‘‘as may be Response: The EPA disagrees with the for emissions during SSM events in the necessary or appropriate’’ language in commenters’ interpretation of the ‘‘as SIP provisions at issue in this action section 110(a)(2)(A) per se authorizes may be necessary or appropriate’’ render those necessary emission states to create exemptions in SIP language of section 110(a)(2)(A). As an limitations noncontinuous, and thus not emission limitations. initial matter, those commenters meeting the statutory definition of Comment: Some commenters contending that section 110(a)(2)(A) is ‘‘emission limitations’’ as defined in contended that section 110(a)(2)(A) only concerned with what is ‘‘necessary section 302(k). Accordingly, regardless merely requires states to include or appropriate’’ to attain and maintain of whether all SIPs must always include emission limitations and other control the NAAQS (or some requirement emission limitations, these specific SIP measures in their SIPs ‘‘as may be germane to the NAAQS) ignore the plain provisions fail to meet a fundamental necessary or appropriate.’’ These language of section 110(a)(2)(A). While requirement of the CAA because they do commenters interpreted that language as the predecessor provisions to section not impose the continuous emission a broad delegation of discretion to states 110(a)(2)(A) prior to the 1990 CAA limitations required by the Act. to develop SIP provisions that are Amendments did indeed speak in terms The EPA also disagrees with the necessary or appropriate to satisfy the of emissions controls ‘‘necessary to argument raised by commenters that its particular needs of a state, as judged insure attainment and maintenance of denial of the Petition with respect to a solely by that state. Some of the [the NAAQS],’’ 219 the statute in effect South Carolina SIP provision supports commenters argued that the EPA’s today requires controls ‘‘necessary or the validity of SSM exemptions in SIP interpretation of ‘‘as may be necessary appropriate to meet the applicable emission limitations.221 In that or appropriate’’ would, in all requirements of this chapter,’’ 220—i.e., situation, the state determined that circumstances, improperly substitute to meet the requirements of the CAA as regulating the source category at issue the EPA’s judgment for that of the state a whole. Thus, at a minimum, the EPA was not a necessary or appropriate concerning what emission limitations interprets the phrase ‘‘as may be means of meeting the requirements of are necessary or appropriate. One necessary or appropriate’’ to include the CAA. The EPA’s approval of that commenter highlighted the EPA’s what is necessary or appropriate to meet provision indicates that the Agency proposal to deny the Petition with legal requirements of the CAA, agreed with that determination. This respect to a specific SIP provision of the including the requirement that emission factual scenario is not the same as one South Carolina SIP that entirely limitations must apply on a continuous in which the state has determined that exempts a source category from basis. regulation of the source category is regulation.218 According to this Regardless of whether all SIPs must necessary or appropriate to meet CAA commenter, if the ‘‘as may be necessary always contain emission limitations, the requirements. Once the determination is or appropriate’’ language grants states text of the CAA is clear that the EPA is made that the source category must or the authority to exempt a source at a minimum tasked with determining should be regulated, then the SIP category from regulation entirely, then it whether SIPs include all emission provisions developed by the state to must allow states to exempt sources limitations that are ‘‘necessary’’ (i.e., regulate the source must meet selectively during SSM events. required) ‘‘to meet the applicable applicable requirements. These include Some commenters further argued that requirements of’’ that CAA. Broadly that any limits on emissions must be regardless of what the terms ‘‘emission speaking, this requires that the EPA consistent with CAA requirements, limitations’’ or ‘‘other control measures, determine whether the SIP meets the including the requirement that any means, or techniques’’ mean, section basic legal requirements applicable to emission limitation limit emissions on a 110(a)(2)(A) only requires states to all SIPs (e.g., the requirements of section continuous basis. The EPA agrees that a include such emission controls in SIPs 110(a)(2)(A) through (M)), whether the state can validly determine that ‘‘as may be necessary or appropriate’’ to SIP contains emission limitations regulation of a source category is not meet the NAAQS, or some requirement necessary to meet substantive necessary, so long as this is consistent germane to attainment of the NAAQS, requirements of the Act (e.g., RACT- with CAA requirements. This is not the such as various technology-based level controls in nonattainment areas) same as allowing impermissible standards or general principles of and whether all emission limitations exemptions for emissions from a source enforceability. Commenters also and other controls, as well as the category that must be regulated. disagreed with the EPA’s purported schedules and timetables for Finally, the EPA does not agree with interpretation that the statutory phrase compliance, are legally and functionally commenters’ allegations that that the ‘‘as may be necessary’’ only qualifies enforceable. EPA’s interpretation of section what ‘‘other control[s]’’ are required, In every state subject to this SIP call, 110(a)(2)(A) eliminates the states’ rather than also qualifying what the EPA has previously concluded in discretion to take local concerns into approving the existing SIP provisions account when developing their SIP 217 See, e.g., H.R. 95–294, at 94 (noting that the that the emission limitations are provisions. Rather, for reasons provision was intended to overcome ‘‘objections’’ to necessary to comply with legal discussed in more detail in the EPA’s such measures, not merely the measures requirements of the CAA. The states in response in section V.D.2 of this themselves); id. at 92 (indicating that the problems document regarding cooperative arise from ‘‘temporary, periodic, or limited systems of control’’ generally, not merely dispersion 219 See, e.g., Clean Air Act of 1970, Public Law federalism, the EPA’s interpretation is techniques or tall stacks). 91–604, section 4(a), 84 Stat. 1676, 1680 (December 218 See 78 FR 12459 at 12512 (citing S.C. Code 31, 1970). 221 See 78 FR 12459 at 12512 (citing S.C. Code Ann. Regs. 61–62.5 St 5.2(I)(b)(14)). 220 Section 110(a)(2)(A). Ann. Regs. 61–62.5 St 5.2(I)(b)(14)).

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fully consistent with the principles of combination with other requirements— identified as part of the putative cooperative federalism codified in the have the effect of limiting emissions on continuously applicable emission CAA. As courts have concluded, a continuous basis. In other words, the limitation. although Congress provided states with commenter asserted that these general- Furthermore, the fact that a SIP ‘‘considerable latitude in fashioning duty provisions impose limits on provision includes prerequisites to SIPs, the CAA ‘nonetheless subjects the emissions during SSM events, when the qualifying for an SSM exemption does States to strict minimum compliance otherwise applicable controls no longer not mean those prerequisites are requirements’ and gives EPA the apply. According to these commenters, themselves an ‘‘alternative emission authority to determine a state’s SSM exemptions that excuse limitation’’ applicable during SSM compliance with the requirements.’’ 222 noncompliance with typical controls do events. The text and context of the SIP This interpretation is also consistent not interrupt the continuous application provisions at issue in this SIP call action with congressional intent that the EPA of an ‘‘emission limitation,’’ because make clear that the conditions under exercise supervisory responsibility to these general-duty provisions elsewhere which sources qualify for an SSM ensure that, inter alia, SIPs satisfy the in the SIP or in a separate permit are exemption are not themselves broad requirements that section part of the emission limitation and components of an overarching emission 110(a)(2) mandates that SIPs ‘‘shall’’ apply even during SSM events. limitation—i.e., a requirement that 223 satisfy. Where the EPA determines Some commenters further argued that limits emissions of air pollutants from that a SIP provision does not satisfy some SSM exemptions themselves the affected source on a continuous legal requirements, the EPA is not demonstrate that sources remain subject basis. Rather, these provisions merely substituting its judgment for that of the to general-duty provisions during SSM identify the circumstances when state but rather is determining whether events. These SSM exemptions require sources are exempt from emission the state’s judgment falls within the sources seeking to qualify for the limitations. wide boundaries of the CAA. exemption to demonstrate that, inter m. Comments that a ‘‘general duty’’ alia, they were at the time complying Reviewing an example of the SIP provision—or comparable generic with certain general duties. provisions cited by commenters is provisions that require sources to Accordingly, these commenters illustrative of this point. For example, ‘‘exercise good engineering judgment,’’ contended that the SSM exemption several commenters pointed to to ‘‘minimize emissions’’ or to ‘‘not itself demonstrates that sources remain provisions in Alabama’s SIP that excuse cause a violation of the NAAQS’’— subject to requirements that limit their a source from complying with an inoculate or make up for exemptions in emissions during SSM events, even otherwise applicable emission specific emission limitations that apply when the source is excused from limitation only when the permittee to the source. complying with other components of ‘‘took all reasonable steps to minimize Comment: Numerous commenters the overarching emission limitation. emissions’’ and the ‘‘permitted facility argued that even if some of the SIP Finally, as evidence that these was at the time being properly provisions with SSM exemptions general-duty clauses must be operated.’’ According to commenters, identified in this SIP call are not permissible under the CAA, some the general duties in this provision—to themselves emission limitations, they commenters pointed to similar federal take reasonable steps to minimize are nevertheless components of valid requirements established by the EPA emissions, and to properly operate the emission limitations. According to these under the NSPS and NESHAP facility—ensure that even during SSM commenters, some SIPs contain separate programs.224 These commenters argued events, the permittee remains subject to ‘‘general duty’’ provisions that are not that the D.C. Circuit’s decision in Sierra requirements limiting emissions. affected by SSM exemptions and thus Club v. Johnson 225 was limited to However, a review of the provisions have the effect of limiting emissions circumstances unique to section 112 themselves in context—not selectively from sources during SSM events that are and does not support a per se quoted—reveals that these general-duty explicitly exempted from the emission prohibition on general-duty clauses provisions were included in the SIP not limitations in the SIP. These general- operating as ‘‘emission limitations.’’ as components of an emission limitation duty provisions vary, but most of them: Response: The EPA disagrees with but rather as components of an (1) Instruct sources to ‘‘minimize these comments. As described exception to that emission limitation. In emissions’’ consistent with good air elsewhere in this response to comments, order to qualify, the SIP requires the pollution control practices, (2) prohibit all ‘‘emission limitations’’ must limit permittee to have taken ‘‘all reasonable sources from emitting pollutants that emissions of air pollutants on a steps to minimize levels of emissions cause a violation of the NAAQS, or (3) continuous basis.226 The specific that exceeded the emission prohibit source operators from requirements of a SIP emission standard’’ 227—an acknowledgement ‘‘improperly operating or maintaining’’ limitation must be discernible on the that the emissions to be ‘‘minimize[d]’’ their facilities. face of the provision, must meet the are those that ‘‘exceed[]’’ (i.e., go Commenters contended that these applicable substantive and stringency beyond) the required limits of ‘‘the general-duty provisions are requirements of the CAA and must be emission standard.’’ In case there were requirements that—either alone or in legally and practically enforceable. The any doubt that the general-duty general-duty clauses identified by these provisions identified are elements of an 222 Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. commenters are not part of the putative exemption from an emission limitation, 2000) (quoting Union Elec. Co. v. EPA, 427 U.S. emission limitations contained in these rather than components of the emission 246, 256–57 (1976)). 223 With respect to section 110(a)(2)(A), this SIP provisions. To the contrary, these limitation itself, the provisions apply means that a SIP must at least contain legitimate, general-duty clauses are often located in during what the Alabama SIP calls enforceable emission limitations to the extent they different parts of the SIP and are often ‘‘[e]xceedances of emission are necessary or appropriate ‘‘to meet the applicable not cross-referenced or otherwise limitations’’ 228 and are found within a requirements’’ of the Act. Likewise, SIPs cannot have enforcement discretion provisions or affirmative defense provisions that contravene the 224 See, e.g., 40 CFR 63.6(e)(3). 227 Ala. Admin. Code Rule 335–3–14– fundamental requirements concerning the 225 551 F.3d 1019, 1027–28 (D.C. Cir. 2008). .03(h)(2)(ii)(III) (emphasis added). enforcement of SIP provisions. 226 CAA section 302(k). 228 Id. at 335–3–14–.03(h)(2)(ii) (emphasis added).

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broader section addressing ‘‘Exceptions SIPs as separate additional Other commenters claimed that the to violations of emission requirements, for example, to ensure EPA is changing its SSM Policy by limitations.’’ 229 By exempting sources that owners and operators act consistent seeking to revoke ‘‘enforcement from compliance with ‘‘the emission with reasonable standards of care, the discretion’’ exercised on the part of standard,’’ these exemptions render the EPA does not recommend using these states, which the EPA specifically SIP emission limitation noncontinuous, background standards to bridge recognized as an acceptable approach in contrary to section 302(k).230 unlawful interruptions in an emission the 1983 SSM Guidance. A commenter The consequences for failing to satisfy limitation.233 asserted that ‘‘fairness principles’’ mean the preconditions for an exemption The NSPS and NESHAP emission that the EPA cannot require a state to further bolster the conclusion that these standards and limitations that the EPA modify its SIP without substantial preconditions are not themselves part of has issued since Sierra Club justification. The commenter further an emission limitation. Failure to meet demonstrate the distinct roles played by contended that the EPA’s claim that it the ‘‘general duty’’ preconditions for an emission limitations and general-duty has a longstanding interpretation of the SSM exemption means that the source provisions. The emission limitations CAA that automatic exemptions are not remains subject to the otherwise themselves are clear and legally and allowed in SIP provisions is false; applicable emission limitation during functionally enforceable, and they are otherwise, the commenter argued, the the SSM event and is thus liable for composed of obviously integrated EPA would not have approved some of violating the emission limitation. If requirements that limit emissions on a the provisions at issue in the SIP call those general duties were independent continuous basis during all modes of long after 1982. As evidence for this parts of an emission limitation (rather source operation. Crucially, the general- argument, the commenter pointed to the than merely preconditions for an duty provisions in these post-Sierra West Virginia regulations that provide an automatic exemption. exemption), then one would expect that Club regulations merely supplement the Finally, other commenters argued that periods of time could exist when the integrated emission limitation; they do the EPA’s changed interpretation of the source was liable for violating those not supplant the emission limitation, general duties rather than the default CAA requires an acknowledgement that which independently requires the SSM Policy is being changed and a emission limitation. continuous limits on emissions. As The general-duty provisions that rational explanation for such change. discussed elsewhere in this document, These commenters noted that the EPA apply as part of the SSM exemption are the fact that the EPA is in the process not alternative emission limitations; previously argued in a brief for the type of updating its own regulations to of exemption provisions that it is now they merely define an unlawful comply with CAA requirements does exemption to an emission limitation. claiming are deficient, citing Sierra Club not alter the legal requirements v. Johnson, No. 02–1135 (D.C. Cir. States have discretion to fix this issue in applicable to SIPs. a number of ways, including by March 14, 2008). The commenters removing the exceptions entirely, by n. Comments that EPA’s action on the claimed that the EPA has provided no replacing these exceptions with petition is a ‘‘change of policy.’’ rational basis for its change in alternative emission limitations Comment: A number of commenters interpretation of the CAA concerning including specific control technologies claimed that the EPA’s action on the exemptions for emissions during SSM or work practices that do ensure Petition is illegitimate because it is events. continuous limits on emissions or by based upon a ‘‘change of policy.’’ Some Response: The EPA’s longstanding reformulating the entire emission commenters claimed that the EPA’s position, at least since issuance of the limitation. reliance on the definition of ‘‘emission 1982 SSM Guidance, is that SIP In addition to the EPA’s fundamental limitation’’ in section 302(k) and the provisions providing an exemption from disagreement with commenters that requirements for SIP provisions in emission limitations for emissions these general-duty provisions are section 110(a)(2) as barring automatic during SSM events are prohibited by the actually components of emission exemptions are ‘‘new.’’ These CAA. The EPA’s guidance documents limitations, the EPA has additional commenters claimed that the EPA has issued in 1982 and 1983 expressly concerns about whether many of these historically relied on the fact that recognized that in place of exemptions, provisions could operate as stand-alone NAAQS are ambient-standard-based and states should exercise enforcement emission limitations even if they were that the EPA has relied also on the fact discretion in determining whether to properly identified as portions of the that SSM exemptions had potential pursue a violation of an emission overall emissions limitations in the adverse air quality impacts as the basis limitation. In the 1983 SSM Guidance, SIP.231 Furthermore, some of these for interpreting the CAA to preclude the EPA made recommendations for general-duty provisions do not meet the exemptions. The commenters argued states that elected to adopt specific SIP level of stringency required to be an that this basis for the SSM Policy is provisions affecting their own exercise ‘‘emission limitation’’ compliant with evidenced by the fact that EPA itself of enforcement discretion, so long as specific substantive provisions of the historically included SSM exemptions those provisions do not apply to enforcement discretion of the EPA or CAA applicable to SIP provisions.232 in NSPS and NESHAP rules, which other parties under the citizen suit Accordingly, while states are free to establish emission limitations that provision of the CAA. More than 15 include general-duty provisions in their should be governed by section 302(k) as well. years ago, in the 1999 SSM Guidance, the EPA reiterated its longstanding 229 Id. at 335–3–14–.03(h) (emphasis added). position that it is inappropriate for SIPs 230 See CAA section 302(k) (defining ‘‘emission 233 For example, the EPA has concerns the some limitation’’ and ‘‘emission standard’’). of these general-duty provisions, if at any point to exempt SSM emissions from 231 See Sierra Club, 551 F.3d at 1026 (discussing relied upon as the sole requirement purportedly compliance with emission limitations the EPA’s prior determinations that ‘‘compliance limiting emissions, could undermine the ability to and repeated that instead of with the general duty on its own was insufficient ensure compliance with SIP emission limitations incorporating exemptions, enforcement to prevent the SSM exemption from becoming a relied on to achieve the NAAQS and other relevant ‘blanket’ exemption’’). CAA requirements at all times. See section discretion could be an appropriate tool. 232 See, e.g., Sierra Club v. Johnson, 551 F.3d at 110(a)(2)(A), (C); US Magnesium, LLC v. EPA, 690 In addition, EPA clarified at that time 1027–28 (so holding with respect to section 112). F.3d 1157, 1161–62 (10th Cir. 2012). that a narrowly tailored affirmative

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defense might also be an appropriate that the requirement for adequate Comment: Commenters claimed that tool for addressing excess emissions in enforcement authority to enforce CAA the EPA’s action on the Petition is based a SIP provision. However, in response to requirements is likewise a bar to on a changed interpretation of the term recent court decisions, and as discussed automatic exemptions from compliance ‘‘emission limitation’’ and that the in detail in section IV of this document, during SSM events. Agency cannot apply that changed the EPA no longer interprets the CAA to Commenters confused the EPA’s interpretation ‘‘retroactively.’’ One permit affirmative defense provisions in evolution in describing the basis for its commenter cited several cases for the SIPs. longstanding SSM Policy as a change in proposition that retroactivity is Although the EPA did not expressly the SSM Policy itself. The EPA’s disfavored and that the EPA is applying rely on the definition of ‘‘emission interpretation of the CAA in the SSM this new interpretation retroactively to limitation’’ in section 302(k) as the basis Policy has not changed with respect to existing SIP provisions. The commenter for its SSM Policy in each of these exemptions for emissions during SSM claimed that the EPA approved the guidance documents, it did rely on the events. The EPA’s discussion of the existing SIP provisions with full purpose of the NAAQS program and the basis for its longstanding interpretation knowledge of what those provisions underlying statutory provisions has evolved and become more robust were and ‘‘consistent with the (including section 110) governing that over time as the EPA has responded to provisions EPA itself adopted and program. In the 1999 SSM Guidance, comments in rulemakings and in courts required.’’ The commenter however, the EPA indicated that the response to court decisions. In support characterized the SIP provisions for definition of emission limitation in of its interpretation of the CAA that which the EPA is issuing a SIP call as section 302(k) was part of the basis for exemptions for periods of SSM are not ‘‘enforcement discretion’’ provisions its position concerning SIP acceptable in SIPs, the EPA has long and ‘‘affirmative defense’’ provisions for provisions.234 After the EPA issued the relied on its view that NAAQS are startup and shutdown. The commenter 1999 SSM Guidance, the D.C. Circuit health-based standards and that contended that the EPA does not have issued a decision holding that the exemptions undermine the ability of authority to issue a SIP call on the definition of emission limitation in SIPs to attain and maintain the NAAQS, premise that the CAA is less flexible section 302(k) does not allow for to protect PSD increments, to improve than the Agency previously thought. periods when sources are not subject to visibility and to meet other CAA The commenter concluded that ‘‘[t]he emissions standards.235 While the requirements. By contrast, the EPA factors of repose, reasonable reliance, court’s decision concerned the section historically took the position that SSM and settled expectations favor not 112 program addressing hazardous air exemptions were acceptable for certain imposing EPA’s new interpretations.’’ Response: The EPA disagrees that this pollutants, the EPA believes that the technology-based standards, such as SIP call action has ‘‘retroactive’’ effect. court’s ruling concerning section 302(k) NSPS and NESHAP standards, and As recognized by the commenter, this applies equally in the context of SIP argued that position in the Sierra Club SIP call action does not automatically provisions because the definition of case cited by commenters. However, in emission limitation also applies to SIP change the terms of the existing SIP or that case, the court explicitly ruled of any existing SIP provision, nor does requirements. That court’s decision is against the EPA’s interpretation, holding consistent with and provides support it mean that affected sources could be that exemptions for emissions during held liable in an enforcement case for for the EPA’s longstanding position in SSM events are precluded by the the SSM Policy that exemptions from past emissions that occurred when the definition of ‘‘emission limitation’’ in deficient SIP provisions still applied. compliance with SIP emission CAA section 302(k). The Sierra Club Rather, the EPA is exercising its clear limitations are not appropriate under court’s rationale thus provided statutory authority to call for the the CAA. additional support for the EPA’s affected states to revise specific Commenters claimed that by longstanding position with respect to deficient SIP provisions so that the SIP interpreting the CAA to prohibit SSM exemptions in SIP provisions, and provisions will comply with the exemptions for emissions during SSM in more recent actions the EPA has requirements of the CAA prospectively events the EPA is revoking relied on the reasoning from the court’s and so that affected sources will be ‘‘enforcement discretion’’ exercised by decision as further support for its required to comply with the revised SIP the state. This is not true. As part of current SSM Policy. Thus, even if the provisions prospectively. state programs governing enforcement, EPA were proceeding under a ‘‘change To the extent that a SIP provision states can include regulatory provisions of policy’’ here as the commenters complied with previous EPA or may adopt policies setting forth claimed, the EPA has adequately interpretations of the CAA that the criteria for how they plan to exercise explained the basis for its current SSM Agency has since determined are their own enforcement authority. Under Policy, including the basis for any flawed, or to the extent that the EPA section 110(a)(2), states must have actual ‘‘change’’ in that guidance (e.g., erroneously approved a SIP provision adequate authority to enforce provisions the actual change in the SSM Policy that was inconsistent with the terms of adopted into the SIP, but states can with respect to affirmative defense the CAA, the EPA disagrees that it is establish criteria for how they plan to provisions in SIPs). Courts have upheld precluded from requiring the state to exercise that authority. Such an agency’s authority to revise its modify its SIP now so that it is enforcement discretion provisions interpretation of a statute, so long as consistent with the Act. In fact, that is cannot, however, impinge upon the that change of interpretation is precisely the type of situation that the enforcement authority of the EPA or of explained.236 SIP call provision of the CAA is others pursuant to the citizen suit o. Comments that the EPA’s proposed designed to address. Specifically, provision of the CAA. The EPA notes action on the petition is based on a section 110(k)(5) begins, ‘‘[w]henever’’ ‘‘changed interpretation’’ of the the EPA determines that an applicable 234 See 1999 SSM Guidance at 2, footnote 1. The implementation plan is inadequate to EPA included section 302(k) among the statutory definition of ‘‘emission limitation.’’ provisions that formed the basis for its attain or maintain the NAAQS, to interpretations of the CAA in that document. 236 The EPA emphasized this important point in mitigate adequately interstate pollutant 235 Sierra Club, 551 F.3d 1019 (D.C. Cir. 2008). the SNPR. See 79 FR 55919 at 55931. transport, or ‘‘to otherwise comply with

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any requirement’’ of the Act, the EPA criminal prosecution for starting up a provisions governing notification that must call for the SIP to be revised. The source with knowledge that a numerical the person is violating that specific commenter does not question that emission limitation might be exceeded. requirement of the SIP. The EPA is sections 110(a)(2) and 302(k) are In summary, the commenter appeared to unaware of any jurisdictions where requirements of the Act. Thus, the EPA argue that the EPA should require states federally assumed enforcement is in has authority under section 110(k)(5) to to establish alternative numerical force, and the EPA does not anticipate call on states to revise their SIP emission limitations or other control that this situation would arise often. provisions to be consistent with those requirements during SSM events, rather Thus, in almost every case, criminal requirements. than merely eliminating SSM enforcement would not occur in the The EPA disagrees that the doctrines exemptions and relying on enforcement absence of a pending notification of a of ‘‘repose,’’ ‘‘reasonable reliance’’ and discretion to address SSM emissions. civil enforcement case and could then ‘‘settled expectations’’ preclude such an Response: The EPA disagrees with the apply only for repeated violation of the action. The CAA is clear that commenter’s suggestion that the EPA activity at issue in that civil action. ‘‘whenever’’ the EPA determines that a should discourage states from relying on Moreover, the concern raised by the SIP provision is inconsistent with the enforcement discretion. Enforcement commenter is one that would exist if statute, ‘‘the Administrator shall’’ notify discretion is a valid state prerogative, there is any requirement that applies the state of the inadequacies and long recognized by courts. However, the during a period of malfunction beyond establish a schedule for correction. This EPA agrees with the commenter that the owner’s control. The commenter’s language does not provide the Agency states should not adopt overly broad preferred way to address this concern with discretion to consider the factors enforcement discretion provisions for would be to exempt these periods from cited by the commenter in deciding inclusion in their SIPs. Section 110(a)(2) compliance with any requirements, an whether to call for a SIP revision once requires states to have adequate approach rejected by the Sierra Club it is determined to be flawed. Here, the enforcement authority, and overly broad court as inconsistent with the definition EPA has determined that the SIP enforcement discretion provisions of ‘‘emission limitation’’ and an provisions at issue are flawed and thus would run afoul of this requirement if approach that the EPA’s longstanding the Agency was required to notify the they have the effect of precluding SSM Policy has explained is states to correct the inadequacies. adequate state authority to enforce SIP inconsistent with the purpose of the p. Comments that the EPA should not requirements. The EPA also agrees that NAAQS program, which is to ensure encourage states to rely on enforcement states may elect to include alternative public health is protected through discretion because this will inevitably emission limitations, whether expressed attainment and maintenance of the lead to states’ creating emission numerically or otherwise, for certain NAAQS, protection of PSD increments, limitations that some sources cannot periods of normal operations, including improvement of visibility and meet. startup and shutdown. compliance with other requirements of It is unclear precisely what the Comment: Commenters claimed that the CAA. commenters are advocating when they it is not appropriate for the EPA to Finally, to the extent that the suggest that sources should not be encourage states to exercise enforcement commenter was advocating that the EPA subject to litigating a remedy for discretion rather than to encourage them should require states to develop SIP violations they cannot avoid. The likely either to define periods when numerical provisions that impose alternative interpretation is that the commenters emission limitations do not apply or to emission limitations during certain believe that excess emissions during develop alternative emission limitations modes of source operation such as unavoidable events should be or other control measures. The startup and shutdown to replace SSM automatically exempted (i.e., not commenters contended that inclusion of exemptions, the EPA notes that to an enforcement discretion provision in considered a violation). This approach was rejected by the court in Sierra Club require states to do so would not be a SIP is superfluous. The commenter consistent with the principles of cited to Portland Cement, where the v. Johnson, because it was not consistent with the definition of cooperative federalism and could be D.C. Circuit court stated that ‘‘an misconstrued as the Agency’s imposing excessively broad theory of enforcement emission limitation in section 302(k).239 As previously explained in the February a specific control requirement in discretion might endanger securing contravention of the Virginia compliance with promulgated 2013 proposal and in this document, the decision.240 As the commenter standards.’’ 237 The commenter also EPA believes that definition, and thus the court’s holding in Sierra Club, is elsewhere itself argued, states have cited the Marathon Oil case in the Ninth broad discretion in how to develop SIP Circuit in which the court rejected an equally relevant for the SIP program. With respect to a commenter’s provisions to meet the objectives of the approach that relied heavily on CAA, so long as those provisions also enforcement discretion. The commenter concerns about criminal enforcement, the EPA disagrees that sources will be meet the legal requirements of the CAA. then asserted that sources are liable for To the extent that a state would prefer violations and that ‘‘[s]ources should unable to start operations because they will automatically be subject to criminal to have emission limitations that apply not be required to litigate remedy for continuously, without higher numerical violations they cannot avoid.’’ 238 The prosecution if an emission limitation is exceeded during a malfunction. Under levels or specific technological controls commenter concluded that it is or work practice standards applicable ‘‘unreasonable for EPA to subject itself CAA section 113(c), criminal enforcement for violation of a SIP can during modes of operation such as to claims that it must exercise its federal startup and shutdown, that is the enforcement authority in the event a occur when a person knowingly violates a requirement or prohibition of an prerogative of the state, so long as the state refuses to enforce unachievable revised SIP provision otherwise meets standards, or for states to put source implementation plan ‘‘during any owners and operators in jeopardy of period of federally assumed enforcement or more than 30 days after 240 See Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) (SIP call remanded and vacated because, inter 237 486 F.2d at 399 n.91. having been notified’’ under the alia, the EPA had issued a SIP call that required 238 Marathon Oil Co. v. Environmental Protection states to adopt a particular control measure for Agency, 564 F.2d 1253 (9th Cir. 1977). 239 551 F.3d 1019 (D.C. Cir. 2008). mobile sources).

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CAA requirements. If a state determines factual proof of that violation, and SSM exemption. Once the SIP that it is reasonable to require a source without the existence and scope of that provisions are corrected, the excess to meet a specific emission limitation on violation being decided by the emissions may be addressed through the a continuous basis and also decides to appropriate trier of fact. The EPA agrees legal structure for establishing an rely on its own enforcement discretion that the alleged violation of the enforceable violation, which then may to determine whether a violation of that applicable SIP emission limitation, if be proven using appropriate evidence, emission limit should be subject to not conceded by the source, must be including test method evidence or other enforcement, then the EPA believes that established by the party bearing the credible evidence. This means that to do so is within the discretion of the burden of proof in a legal proceeding. excess emissions that occur during an state. The degree to which evidence of an SSM event will be treated for q. Comments that the EPA’s action on alleged violation may derive from a enforcement purposes in exactly the the Petition is inconsistent with the specific reference method or any other same manner as excess emissions that Credible Evidence Rule. credible evidence must be determined occur outside of SSM events. The EPA Comment: A number of commenters based upon the facts and circumstances acknowledges that the limitation that raised concerns based upon how the of the exceedance of the emission applies during a startup or shutdown EPA’s statements in the February 2013 limitations at issue.242 This is a basic event might ultimately be different proposal relate to the Credible Evidence principle of enforcement actions under (whether higher or lower) than the Rule issued in 1997.241 For example, the CAA, but the EPA wishes to make limitation that applies at other times, if one commenter argued that throughout this point clearly in this final action to the state elects to replace the SSM the February 2013 proposal, when the avoid any unintended confusion exemption with an appropriate EPA stated that excess emissions during between the legal standard creating the alternative emission limitation in SSM events should be treated as enforceable obligation and the response to this SIP call action. ‘‘violations’’ of the applicable SIP evidentiary standard for proving a The EPA also disagrees with emission limitations, the Agency was violation of that obligation. commenters who claimed that contradicting the Credible Evidence The EPA’s general statements in the statements by the Agency in the Rule and other provisions of law. The February 2013 proposal, the SNPR and Credible Evidence Rule final rule commenter emphasized that the this final action about treatment of SSM preamble support the inclusion of determination of whether excess emissions as a violation pertain to exemptions for SSM events in SIP emissions during an SSM event are in another basic principle, i.e., that SIP provisions. The commenter is correct fact a ‘‘violation’’ of the applicable SIP provisions cannot treat emissions that at that time, the EPA held the view provisions must be made using the during SSM events as exempt, because that emission limitations in its own appropriate reference test method. In this is inconsistent with CAA NSPS could be considered addition, the commenter asserted that requirements. Thus, when the EPA ‘‘continuous,’’ notwithstanding the fact whether any other form of information explains that these emissions must be that they contained ‘‘specifically may be used as ‘‘credible evidence’’ of treated as ‘‘violations’’ in SIP excused periods of noncompliance’’ a violation must be evaluated by the provisions, this is meant in the sense (i.e., exemptions from emission trier of fact in a specific enforcement that states with SSM exemptions need limitations during SSM events).243 action. Another commenter raised a to remove them, replace them with Similarly, at that time the EPA relied on different argument based on the alternative emission limitations that a number of reported court decisions Credible Evidence Rule, claiming that apply during startup and shutdown or discussed in the preamble for the the EPA’s statements in the preamble to eliminate them by revising the emission Credible Evidence Rule for determining that rulemaking contradict the EPA’s limitation as a whole. Once at that time that NSPS could contain statements in the February 2013 impermissible SSM exemptions are such exemptions in order to make the proposal and support the need for removed from the SIP, then any excess emission limitations ‘‘reasonable.’’ exemptions for emissions during SSM emissions during such events may be However, after the court’s decision in events. The implication of the the subject of an enforcement action, in the Sierra Club case interpreting the commenter is that any such EPA which the parties may use any definition of emission limitation in statements in connection with the appropriate evidence to prove or section 302(k), these EPA statements in Credible Evidence Rule would negate disprove the existence and scope of the the preamble for the Credible Evidence the Agency’s interpretation of the alleged violation and the appropriate Rule are no longer correct and thus do statutory requirements for SIP remedy for an established violation. To not apply to the EPA’s action in this provisions as interpreted in the SSM be clear, the fact that these emissions document. First, the EPA notes that these prior Policy since at least 1982, the decision are currently exempt through statements related to the Credible of the court in the Sierra Club case or inappropriate SIP provisions is a Evidence Rule specifically addressed any other actions such as the recent deficiency that the EPA is addressing in not SIP provisions but rather the issuance of EPA regulations with no this action. Thus, the EPA disagrees such SSM exemptions. provisions of the Agency’s own with the commenters’ suggestion that technologically based NSPS. The Response: The EPA agrees, in part, these emissions are never to be treated with the commenters who expressed statements in the document make no as violations simply because a deficient reference to SIP provisions, which is concern that the Agency’s statements in SIP provision currently includes an the February 2013 proposal could be unsurprising given that EPA’s SSM Policy at the time indicated that no such misconstrued as a definitive 242 For example, the degree to which data from determination that the excess emissions continuous opacity monitoring systems (COMS) is SSM exemptions are appropriate in SIP during any and all SSM events are evidence of violations of SIP opacity or PM mass provisions. Second, the EPA’s automatically a violation of the emission limitations is a factual question that must justification for exemptions from be resolved on the facts and circumstances in the emission limitations during SSM events applicable emission limitation, without context of an enforcement action. See, e.g., Sierra Club v. Pub. Ser v. Co. of Colorado, Inc., 894 in NSPS was made prior to the 2008 241 See ‘‘Credible Evidence Revisions; Final rule,’’ F.Supp. 1455 (D. Colo. 1995) (allowing use of 62 FR 8314 (February 24, 1997). COMS data to prove opacity limit violations). 243 Id., 62 FR 8314, 8323–24.

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decision of the court in the Sierra Club species changed. Some of the PM mass emission limitations or with case. The EPA’s interpretation of the commenters acknowledged that their any other CAA requirements. Thus, the statute and the case law to justify underlying concern is that requirements fact that opacity is not itself a criteria exemptions for emissions during SSM for COMS on certain sources have pollutant is irrelevant. events in that 1997 document is no rendered it much easier to monitor Second, although the EPA agrees that longer correct. Finally, the EPA in its exceedances of SIP opacity limits and to SIP opacity limitations also provide an own new NESHAP and NSPS bring enforcement actions for alleged important means of monitoring control regulations is now providing no violations. device performance and thus indirectly exemptions for emissions during SSM Response: The EPA agrees with many provide a means to monitor compliance events and is imposing specific of the points made by commenters but with PM emission limitations as well, numerical limitations or other control not with the conclusion that the this does not mean that opacity limits requirements on sources that apply to commenters drew from these points, do not need to meet the statutory affected sources at all times, including i.e., that exemptions for SSM events are requirements for SIP emission during SSM events.244 Thus, the appropriate in SIP provisions that limitations. Historically, opacity limits statements in the 1997 Credible impose opacity emission limitations. have been an important tool for Evidence Rule preamble relied upon by First, although the EPA agrees that implementation of the PM NAAQS, and commenters do not render the EPA’s opacity itself is not a criteria pollutant in particular for the implementation and interpretation of the CAA with respect and that there is thus no NAAQS for enforcement of PM mass limitations on to SSM exemptions in SIP provisions in opacity, this does not mean that SIP sources to help attain and maintain the this action incorrect. opacity limitations are not ‘‘emission PM NAAQS. The EPA agrees that For clarity, the EPA emphasizes that limitations’’ subject to the requirements opacity is a useful tool to indicate it is in no way reopening, revising or of section 110(a)(2)(A) and do not need overall operation and maintenance of a otherwise amending the Credible to be continuous. As the commenters source and its emission control devices, Evidence Rule in this action. The EPA often conceded, opacity is a surrogate such as electrostatic precipitators or is merely responding to commenters for PM emissions for which there are baghouses. SIP opacity limitations who characterized the relationship NAAQS, and opacity has served this provided this tool even before modern between Agency statements in that purpose since the beginning of the SIP instruments that measure PM emissions rulemaking action and this SIP call program in the 1970s. SIP provisions on a direct, continuous basis existed. At action. The EPA also emphasizes that no that impose opacity emission a minimum, elevated opacity indicates changes to the Credible Evidence Rule limitations often date back to the potential problems with source design, should be necessary as a result of this earliest phases of the SIP program. From operation or maintenance, or potential rulemaking. the outset, such opacity limitations have problems with incorrect operation of r. Comments that exemptions in provided an important regulatory tool pollution control devices, especially at opacity standards should be permissible for implementing the PM NAAQS and the elevated levels of many existing because opacity is not a NAAQS for limiting PM emissions from sources. opacity standards. Well-run sources pollutant. To this day, states continue to use should be in compliance with typical Comment: Many state and industry opacity limitations in SIP provisions SIP opacity limits. Opacity exceeding commenters argued that the EPA should and the EPA continues to use opacity the applicable limitations can be interpret the CAA to allow SIP limitations in its own NSPS and indicative of problems that justify provisions that impose opacity emission NESHAP regulations, as necessary, for further investigation by sources and limitations to contain exemptions for specific source categories.245 EPA regulators, such as conducting a stack SSM events or for other modes of source regulations applicable to SIPs explicitly test to determine compliance with PM operation. The reasons given by define the term ‘‘emission limitation’’ to mass emission limitations. Not all commenters ranged broadly, but they include opacity limits.246 It is also sources have or will have PM CEMS, or included assertions that opacity is not a important to note that these SIP have PM CEMS at all emission points, criteria pollutant, that opacity provisions impose opacity emission to monitor PM emissions directly, nor limitations serve no purpose other than limitations that sources must meet do PM CEMS necessarily obviate the as a tool to monitor PM control device independently; i.e., opacity limitations need for opacity standards to regulate performance, that there is no reliable are independent ‘‘emission limitations’’ condensables, and thus there is a correlation between opacity and PM under section 110(a)(2)(A) that must, continued need for opacity emission mass, that there are circumstances consistent with section 302(k), ‘‘limit[ ] limitations in SIPs. The continued need during which sources may not be the quantity, rate, or concentration of for SIP opacity limitations for this and capable of meeting the otherwise emissions of air pollutants on a other purposes contradicts the applicable SIP opacity standards and continuous basis.’’ These opacity commenters’ arguments concerning the that opacity is not an ‘‘air pollutant.’’ emission limitations in SIP provisions validity of SSM exemptions. Commenters also argued that because are not stated conditionally as opacity Third, the EPA agrees that the precise SIP opacity standards were originally limits that sources do not need to meet correlation between opacity and PM established when the NAAQS applied to if they are otherwise in compliance with mass emissions is not always known for ‘‘total suspended particles’’ (TSP), a specific source under all operating rather than the current PM10 and PM2.5, 245 See, e.g., 40 CFR 60.42Da(b). The EPA’s conditions, unless there is parallel this alone should be a reason to allow revised NSPS for this category imposes an opacity testing and measurement of the opacity SSM exemptions now that the NAAQS limit of 20 percent at all times, except for one 6- and the PM emissions to determine the minute period per hour when the opacity may rise have been revised and the indicator to 27 percent. Notably, as an option, sources may correlation at that particular source. elect to install PM CEMS and be subject only to the Similarly, parametric monitoring can be 244 See, e.g., 40 CFR 60.42Da, where paragraph revised particulate matter emission limitation. used to establish such a correlation. (e)(1) applies a numerical PM emission limitation 246 See 40 CFR 51.100(z) (defining the term Nevertheless, there is commonly a at all times except during periods of startup and ‘‘emission limitation’’ as limits on ‘‘the quantity, shutdown, and paragraph (e)(2) applies work rate, or concentration of emissions of air pollutants positive correlation between PM and practice standards during periods of startup and on a continuous basis, including any requirements opacity and thus elevated opacity is shutdown. which limit the level of opacity’’). often indicative of additional PM

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emissions from a source. Even in those designed, operated, maintained and the PM NAAQS use PM10 and PM2.5 as instances where a precise correlation is controlled to reduce emissions, nor does the indicator species. On a factual level, not available, however, the use of it comply with the most basic it is obvious that SIP provisions for opacity as a means to assure the requirement that SIP emission opacity limitations are expressed in reduction of PM emissions and to limitations be continuous in accordance terms of percentage ‘‘opacity’’ unrelated monitor source compliance remains a with section 302(k). As explained in to the size of the particles. Opacity valid approach to regulation of PM from section X.B of this document, the SIP represents the degree to which sources. In any event, the absence of a revisions in response to this SIP call emissions reduce the transmission of precise correlation between opacity and action will need to be consistent with light and obscures the view of an object PM does not justify the complete the requirements of sections 110(k)(3), in the background. In general, the more exemptions from SIP opacity limitations 110(l) and 193 as well as any other particles which scatter or absorb light during SSM events that the commenters applicable requirements. that passes through an emissions point, advocate and instead suggests that it Fifth, the EPA notes that few the more light will be blocked, thus may be appropriate to replace such commenters seriously argued that SIP increasing the opacity percentage of the exemptions with valid and enforceable provisions for opacity do not fit within emissions plume. The EPA agrees that alternative numerical limitations or the plain language of section variables such as the size, number and other control requirements as a 110(a)(2)(A) or the definition of composition of the particles in the component of the SIP opacity emission ‘‘emission limitation’’ in section 302(k) emissions can result in variations in the limitation that applies during startup or in EPA regulations applicable to SIP percentage of opacity. Notwithstanding and shutdown. Opacity emission provisions. Section 110(a)(2)(A) requires the changes in the NAAQS, however, limitations in SIPs must meet the SIPs to contain such enforceable both states and the EPA have continued statutory requirements for emission emission limitations ‘‘as may be to rely on opacity limitations because limitations. necessary and appropriate to meet the they serve the same purposes for the applicable requirements of’’ the CAA. Fourth, the EPA agrees with current PM10 and PM2.5 NAAQS (and Opacity limitations in SIP provisions commenters that for some sources some other purposes such as the regulation of are necessary and appropriate for a PM controls cannot operate, or operate HAPs under section 112) that they variety of reasons already described, previously did for the TSP NAAQS. at full effectiveness and ideal efficiency, including as a means to reduce PM Indeed, as the PM NAAQS have been during startup and shutdown. emissions, as a means to monitor source revised to provide better protection of Accordingly, as the commenters compliance and to provide for more public health, the need for such opacity implicitly recognized, the resulting effective enforcement. Opacity limitations continues unless there is a increases in PM emissions can result in limitations in SIP provisions also easily better means to monitor source elevated opacity and thus exceedances fit within the concept of a limit on the compliance, such as PM CEMS. As with of the applicable SIP opacity emission ‘‘quantity, rate or concentration of air other SIP emission limitations, the EPA limitations. In those situations where it pollutants’’ that relates to the ‘‘operation interprets the CAA to preclude SSM is true that no additional emissions or maintenance of a source to assure exemptions in opacity standards. controls are available or would function continuous emission reduction and any s. Comments that exemptions from more effectively to reduce PM design, equipment, work practice or SIP opacity limitations for excess emissions, and hence to reduce opacity, operational standard’’ under the CAA, emissions during SSM events should be it may be appropriate for states to as provided in section 302(k). The term allowed because such emissions are consider imposing an alternative ‘‘air pollutant’’ is defined broadly in difficult to monitor or to control. opacity emission limitation applicable section 302(g) to mean ‘‘any air Comment: Several commenters argued during startup and shutdown. As pollution agent or combination of such that the EPA’s proposal of a SIP call for discussed in section VII.B.2 of this agents, including any physical, SIP opacity emission limitations that document, the EPA provides chemical, biological, radioactive . . . include an SSM exemption is arbitrary recommendations to states concerning substance or matter which is emitted and capricious because it is difficult or how to develop such alternative into or otherwise enters the ambient impossible to monitor or measure emission limitations. To the extent that air.’’ Even if opacity is not itself an air opacity during SSM events. According sources believe that a SIP provision pollutant, it is clearly a means of to commenters, there is no compliance with a higher opacity level for startup monitoring and limiting emissions of methodology to determine whether and shutdown may be justified, they PM from sources and is thus opacity limitations are met during SSM may seek these alternative limitations encompassed within the definition of events and this is the reason that the from the state and they can presumably ‘‘emission limitation’’ in section EPA’s own general provisions for NSPS advocate for opacity standards that are 302(k).247 Significantly, existing EPA and NESHAP exclude emissions during tailored to reflect the correlation regulations applicable to SIP provisions SSM events as ‘‘not representative’’ of between PM mass and opacity at a already explicitly define the term source operation. In the absence of a specific source. Significantly, however, ‘‘emission limitation’’ to include opacity specific methodology to demonstrate even if it is appropriate to impose a limitations.248 compliance, the commenters argued that somewhat higher opacity limitation for Finally, the EPA does not agree with expecting sources to comply with any some sources during specifically commenters who argued that because opacity emission limitations during defined modes of operation such as SIP opacity limitations were often SSM events is arbitrary and capricious. startup and shutdown, that does not originally imposed when the PM The commenters asserted that in light of justify the total exemptions from SIP NAAQS was for TSP, it is legally this, the EPA must interpret the CAA to opacity emission limitations during acceptable to have exemptions for allow exemptions for SSM events in SIP SSM events that the commenters emissions during SSM events now that opacity provisions. advocated. To provide total exemptions A number of commenters also argued from SIP opacity emission limitations 247 See Sierra Club v. TVA, 430 F.3d 1337, 1340 that because emission controls for PM during SSM events does not provide any (11th Cir. 2005). do not function, or do not function as incentive for sources to be better 248 See 40 CFR 51.100(z). effectively or efficiently, during certain

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modes of source operation, the EPA limitations.249 Sources routinely emissions from sources during periods should interpret the CAA to permit monitor and certify to their compliance that are representative of source exemptions for SSM events in opacity with SIP opacity limitations based upon operation. emission limitations. Many commenters Method 9. In addition, COMS have been Third, the EPA does not agree with explained that certain types of emission available, and in some cases are the premise that because certain forms controls at certain types of sources only required, as another means of or types of emission controls do not operate at specific temperatures or monitoring emissions and verifying work, or do not work as effectively or under specific conditions. For example, compliance with opacity emission efficiently, during certain modes of many commenters stated that existing limitations. With respect to COMS, operation at some sources, it necessarily pollution control devices on certain commenters expressed concerns that follows that sources should be totally categories of stationary sources do not they are not always accurate, are not exempt from emission limitations operate, or do not operate as effectively always properly calibrated or are not during such periods. The EPA interprets or efficiently, during startup and always the reference test method for SIP the CAA to require that SIP emission limitations be continuous. As explained shutdown. Based upon this assertion, opacity emission limitations, and other in section VII.A of this document, the commenters argued that the EPA similar arguments. In this rulemaking, emission limitations do not necessarily should interpret the CAA to allow total the EPA is not addressing these allegations concerning COMS but need to be expressed numerically, can exemptions from SIP opacity emission merely noting that COMS are an have higher numerical levels during limitations during such periods. available means of monitoring opacity certain modes of operation, and may be Commenters also characterized the from sources and in appropriate composed of a combination of EPA’s February 2013 proposal as circumstances can provide data meeting numerical limitations, specific ‘‘particularly unreasonable’’ with the EPA’s criteria as credible evidence technological control requirements and/ respect to SSM exemptions in SIP to be used to determine compliance or work practice requirements during opacity limitations, because those with emission limitations. certain modes of operation, so long as limitations should be allowed to Second, the EPA does not agree that these emission limitations meet exclude elevated opacity during periods the fact that its regulations concerning applicable CAA stringency requirements when PM emissions controls devices are performance tests in 40 CFR 63.7(e) for and are legally and practically ‘‘not expected to operate correctly.’’ NESHAP and in 40 CFR 60.8(c) for enforceable. If it is factually accurate According to commenters, treating the NSPS exclude SSM emissions for that a given source category requires a higher opacity during SSM events ‘‘as a purposes of evaluation of emissions higher opacity limit during periods such violation simply because it is indicating under normal operating conditions as startup and shutdown, then the state something that is expected is provides a justification for SSM may elect to develop one consistent ridiculous.’’ As an example, the exemptions from opacity emission with other CAA requirements. The EPA commenters specifically mentioned limitations in SIP provisions. The D.C. has provided guidance to states with occurrences such as when a source’s Circuit decision in Sierra Club has criteria to consider in revising their SIP electrostatic precipitator (ESP) is not already indicated that such exemptions provisions to replace exemptions with functioning or is not functioning are not permissible in emission an appropriate alternative emission properly as periods during which there limitations and vacated the general limitation for such purposes. The EPA provisions applicable to NESHAP. In emphasizes that even if it is the case should be an exemption from SIP the case of the exemption language in 40 that existing control measures cannot opacity emission limitations. CFR 60.8(c) relevant to NSPS, the EPA operate, or cannot operate as effectively Response: The EPA agrees with some acknowledges that it has not yet taken or efficiently, during startup and of the points made by commenters but action to revise the language to shutdown at a particular source, this does not agree with the conclusions that eliminate that exemption. However, in does not legally justify a complete the commenters drew from these points, promulgating new NSPS regulations exemption from SIP emission i.e., that alleged difficulties in subsequent to the Sierra Club decision, limitations and may merely indicate monitoring, measuring or controlling the EPA is including emission that additional emission controls or opacity during some modes of source limitations for newly constructed, work practices are necessary when the operation in general justify complete reconstructed and modified sources that existing control measures are exemptions from opacity emission apply continuously and including insufficient to meet the applicable SIP limitations during SSM events. provisions expressly stating that the emission limitation. The EPA is taking First, the EPA does not agree with the SSM exemptions in the General this approach with its own recent NSPS argument that there is no ‘‘compliance Provisions do not apply. The EPA notes and NESHAP regulations, when methodology’’ available for purposes of that the commenter is also in error appropriate, in order to ensure that its because the performance tests are own emission limitations are consistent verifying compliance with SIP opacity intended to be a means of evaluating with CAA requirements. limitations. Since the earliest phases of Finally, the EPA also disagrees with the SIP program, Reference Method 9 249 The EPA notes that one commenter the logic of commenters that argued in has been available as a means of characterized SIP opacity limits as ‘‘archaic’’ and favor of exemptions from SIP opacity verifying a source’s compliance with suggested that the Agency should issue a SIP call limitations during periods when a applicable SIP opacity emission requiring their removal from SIPs entirely. Unless and until regulators and sources have a better source is most likely to violate them, limitations. Whatever concerns the means of monitoring compliance with PM emission e.g., when the source’s control devices commenters may have with this test limitations on a continuous basis, such as through are not functioning. Even if exemptions method, it is a valid method and it installation of PM CEMS, the EPA believes that opacity limits will continue to be a necessary part from SIP opacity emission limitations continues to be used as a means of of emission limitations. There will continue to be were legally permissible under the CAA, verifying source compliance with sources of emissions for which it will not be cost- which they are not, it would be illogical opacity limitations and a source of effective or technologically viable to require the to excuse compliance with the evidence for determining whether there installation of PM CEMS or for which opacity standards will be needed as a means of regulating standards during the precise periods are violations of such emission condensables. when opacity standards are most

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needed to monitor source compliance during this activity are ‘‘indicative of to create alternative emission with SIP emission limitations and normal ESP operation, not poor limitations applicable to opacity during provide incentives to avoid and performance.’’ In other words, the maintenance periods, so long as they are promptly correct malfunctions; i.e., it commenters argued that opacity consistent with CAA requirements. The would be illogical to require no legal limitations should contain complete EPA provides recommendations for restriction on emissions when the exemptions for opacity emitted during alternative emission limitations in sources are most likely to be emitting soot-blowing on the theory that the section VII.B.2 of this document. the most air pollutants. Inclusion of elevated emissions during this mode of With respect to soot-blowing, the EPA exemptions for exceedances of SIP operation show that the control measure likewise does not agree that total opacity limitations during such periods on a source is functioning properly. The exemptions from opacity limitations would remove incentives to design, commenters further argued that during such periods are consistent with maintain and operate the source considering emissions during soot- CAA requirements. As with correctly, and to promptly correct blowing for purposes of PM limitations maintenance in general, soot-blowing is malfunctions, in order to assure that it is appropriate, but not for purposes of an intentional, predictable event within meets the applicable SIP emission opacity limitations, because of the way the control of the source. The limitations. By exempting excess in which regulators developed the commenters’ implication is that nothing emissions during such events, the respective emission limitations. whatsoever could be done to limit provision would undermine the Response: The EPA does not agree opacity during such activities, and the enforcement structure of the CAA in that exemptions from SIP opacity EPA believes that this is both inaccurate section 113 and section 304, through limitations are appropriate for any mode and not a justification for sources’ being which the air agency, the EPA and of source operation, whether during subject to no standards whatsoever citizens are authorized to assure that SSM events or during other normal, during soot-blowing. In addition, the sources meet their obligations. The EPA predictable modes of source operation. EPA disagrees with the commenters’ emphasizes that while exemptions from To the extent that there are legitimate claim that exemptions from opacity SIP limitations are not permissible in technological reasons why sources are emission limitations during soot- SIP provisions, states may elect to able to meet only a higher opacity blowing are legally permissible because impose appropriate alternative emission limitation during certain modes of this allegedly shows that the control limitations. They may include operation, it does not follow that this devices for opacity and PM are in fact alternative numerical limitations, constraint justifies complete exemption performing correctly. This argument control technologies or work practices from any standard or any alternative incorrectly presupposes that the sole that apply during modes of operation technological control or work practice reason for SIP opacity emission such as startup and shutdown, so long in order to reduce opacity during such limitations is as a means of better as all components of the SIP emission periods. Providing a complete evaluating control measure limitation meet all applicable CAA exemption for opacity during these performance. This is but one reason for requirements. modes of source operation, and no SIP opacity limitations. Moreover, the t. Comments that exemptions in SIP specific alternative emission limitation EPA notes, excusing opacity during opacity limitations should be during such periods, removes incentives soot-blowing has the diametrically permissible for ‘‘maintenance,’’ ‘‘soot- for sources to be properly designed, opposite effect of the actual purpose of blowing’’ or other normal modes of maintained and operated to reduce the control devices and can result in source operation. emissions during such periods. much higher emissions as opposed to Comment: A number of industry With respect to maintenance, the EPA encouraging limiting these emission commenters argued that the EPA should does not agree with commenters that with other forms of controls. interpret the CAA to allow exemptions total exemptions from opacity emission Finally, the EPA notes, the from SIP opacity limitations for limitations during such activities are commenters’ argument that whether ‘‘maintenance.’’ The commenters stated consistent with CAA requirements for opacity limitations should apply during that during maintenance, sources must SIP provisions. As the EPA has stated soot-blowing depends upon whether the shut down operations and control repeatedly in its interpretation of the emissions were or were not accounted devices while the source is cleaned or CAA in the SSM Policy, maintenance for in the applicable PM emissions is repaired. During such periods, the activities are predictable and planned also based upon an incorrect premise. commenters explained, a ventilation activities during which sources should Even if the PM emission limitation system operated to protect workers at be expected to comply with applicable applicable to a source was developed to the source could result in monitored emission limitations.250 The premise of include the emissions during soot- exceedances of a SIP opacity limitation. the commenters advocating for such blowing specifically, it does not follow Commenters specifically argued that exemptions for all emissions during that sources should be completely although COMS data may suggest maintenance is evidently that nothing exempted from opacity limitations violations of opacity standards during can be done to limit PM emissions and during such periods. As the commenters such periods, the fact that the source is thus limit opacity during maintenance themselves frequently acknowledged, not combusting fuel during maintenance activities, and the EPA disagrees with when compared to other enforcement should mean that the opacity emission that general premise. To the extent tools, SIP opacity provisions often limitation does not apply at such times. appropriate, however, states may elect provide a much more effective and According to commenters, opacity continuous means of determining limitations are only intended to reflect 250 See 1982 SSM Guidance at Attachment p. 2; source compliance with SIP PM the performance of pollution control 1983 SSM Guidance at Attachment p. 3. The EPA limitations and control measure notes that it also did not interpret the CAA to equipment while the source is operating permit affirmative defense provisions for planned performance. A typical SIP opacity and thus have no relevance during events under its prior 1999 SSM Guidance on the provision imposes an emission periods of maintenance. Other grounds that sources should be expected to operate limitation such as 20 percent opacity at commenters made comparable in accordance with applicable SIP emission all times, except for 6 minutes per hour limitations during maintenance. This interpretation arguments with respect to soot-blowing, was upheld in Luminant Generation v. EPA, 714 when those emissions may rise to 40 asserting that the high opacity levels F.3d 841 (5th Cir. 2013). percent opacity. Well-maintained and

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well-operated sources should be able to maintenance or controls to reduce the 1983 SSM Guidance, the EPA meet such SIP opacity limitations. emissions. The EPA emphasizes that the explained that it may be appropriate to Given that properly designed, removal of impermissible SSM exercise enforcement discretion for maintained and operated sources should exemptions should not be perceived as violations that occur during startup and typically have opacity substantially an opportunity to provide new de facto shutdown under proper circumstances. below these levels, elevated opacity at a exemptions for these emissions by In the 1999 SSM Guidance, the EPA source is a good indication that the manipulation of the averaging time and further explained that it interprets the source may not be in compliance with the numerical level of existing opacity CAA to permit SIP emission limitations its applicable PM limitations. emission limitations. that include alternative emission u. Comments that elimination of In any event, the EPA is not in this limitations specifically applicable exemptions from SIP opacity emission final action deciding how states must during startup and shutdown. In the limitations during SSM events will revise SIP opacity emission limitations context of making recommendations to compel states to alter the averaging but is merely issuing a SIP call directing states for how to address emissions period of opacity limitations so as to the affected states to eliminate existing during startup and shutdown, the EPA allow sources to have elevated automatic and discretionary exemptions provided seven criteria for states to emissions during SSM events. for excess emissions during SSM events. evaluate in establishing appropriate Comment: Commenters argued that if The affected states will elect how best alternative emission limitations. The exemptions for excess emissions during to respond to this SIP call, whether by specific purpose for these SSM events are not legally permissible simply removing the exemptions, by recommendations was to take into in SIP opacity emission limitations, replacing the exemptions with account technological limitations that then states will have no option but to appropriate alternative emission might prevent compliance with the alter the existing opacity limitations. limitations applicable to startup and otherwise applicable emission The commenters argued that if the SSM shutdown or other normal modes of limitations. As explained in detail in the exemptions are removed, then the operation or by a complete overhaul of February 2013 proposal, the EPA did averaging time should be ‘‘greatly the SIP provision in question. In not intend these criteria to be the basis extended’’ and the numerical limits particular, where the affected sources for the creation of exemptions from SIP ‘‘should be significantly increased.’’ are located in designated nonattainment emission limitations during startup and Response: The EPA agrees that SIP areas, there may be a need to evaluate shutdown, because the Agency provisions for opacity that contain additional controls that are needed for interprets the CAA to prohibit such exemptions for SSM events at issue in attainment planning purposes that were exemptions. this action must be revised to eliminate not necessary when the emission In the February 2013 proposal, the the exemptions. States may elect to do limitation was first adopted. Whichever EPA also repeated its guidance this by merely removing the approach a state determines to be most concerning establishment of alternative exemptions, by replacing the appropriate, the resulting SIP emission limitations that apply to exemptions with appropriate alternative submission to revise the existing sources during startup and shutdown, in emission limitations that apply in place deficient provisions will be subject to those situations where the sources of the exemptions or, as the commenters review by the EPA pursuant to sections cannot meet the otherwise applicable evidently advocate, by a total overhaul 110(k)(3), 110(l) and 193. SIP emission limitations. As explained of the emission limitation. The EPA Considerations relevant to this issue are in section VII.A of the February 2013 disagrees, however, with the discussed in section X.B of this proposal, the EPA interprets the CAA to commenters’ contentions that removal document. require that SIP emission limitations of the SSM exemptions would must be continuous and thus to prohibit B. Alternative Emission Limitations necessarily result in extensions of the exemptions for emissions during startup During Periods of Startup and averaging time or increases of the and shutdown. This does not, however, Shutdown numerical levels in the existing SIP mean that every SIP emission limitation opacity emission limitations. In some 1. What the EPA Proposed must be expressed as a numerical cases, extension of the averaging period In the February 2013 proposal, the limitation or that it must impose the and elevation of the numerical EPA reiterated its longstanding same limitations during all modes of limitations may in fact be appropriate. interpretation of the CAA that SIP source operation. The EPA’s In other cases, however, it may instead provisions cannot include exemptions interpretation of the CAA with respect be appropriate to reduce the existing from emission limitations for emissions to SIP provisions is that SIP emission numerical opacity limitations, given during SSM events but may include limitations: (i) Do not need to be improvements in control technology different requirements that apply to numerical in format; (ii) do not have to since the original imposition of the affected sources during startup and apply the same limitation (e.g., limits and the need for additional PM shutdown. Since the 1982 SSM numerical level) at all times; and (iii) emission reductions from the affected Guidance, the EPA has clearly stated may be composed of a combination of sources due to more recent revisions to that startup and shutdown are part of numerical limitations, specific the PM NAAQS. Thus, the EPA notes, the normal operation of a source and technological control requirements and/ a total revision of some of the SIP should be accounted for in the design opacity limitations at issue in this and operation of the source. Thus, the operation. The EPA assumes that every source is action may indeed be the proper course designed, maintained and operated with the EPA has long concluded that sources for states to consider. The implications expectation that the source will at least occasionally should be required to meet the of the commenters’ argument, however, start up and shut down, and thus these modes of applicable SIP emission limitations operation are ‘‘normal’’ in the sense that they are are that existing opacity limitations will during normal modes of operation to be expected. The EPA used this term in the automatically need to be revised in ordinary sense of the word to distinguish between including startup and shutdown.251 In order to allow sources to continue to such predictable modes of source operation and genuine ‘‘malfunctions,’’ which are by definition emit as usual and that states and sources 251 Some commenters on the February 2013 supposed to be unpredictable and unforeseen may ignore improvements that have proposal focused great attention on whether startup events that could not have been precluded by been made in source design, operation, and shutdown are modes of ‘‘normal’’ source proper source design, maintenance and operation.

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or work practice requirements, with expected to control and minimize enumerated in section III.A of the each component of the emission emissions. Accordingly, exemptions for Attachment to the 1999 SSM Guidance limitation applicable during a defined emissions during these periods of as appropriate considerations for SIP mode of source operation. Regardless of normal source operation are not provisions that establish alternative how an air agency elects to express the consistent with CAA requirements. emission limitations that apply to emission limitation, however, the Excess emissions that occur during startup and shutdown. The EPA emission limitation must limit planned and predicted periods should repeated those criteria in the February emissions from the affected sources on be treated as violations of any 2013 proposal as guidance to states for a continuous basis. Thus, if there are applicable emission limitations. developing components of emission different numerical limitations or other However, the EPA interprets the CAA limitations that apply to sources during control requirements that apply during to allow SIPs to include alternative startup, shutdown or other specific startup and shutdown, those must be emission limitations for modes of modes of source operation to meet CAA clearly stated components of the operation during which an otherwise requirements for SIP provisions. emission limitation, must meet the applicable emission limitation cannot Comments received on the February applicable level of control required for be met, such as may be the case during 2013 proposal suggested that the the type of SIP provision (e.g., be RACT startup or shutdown. The alternative purpose of the recommended criteria for sources located in nonattainment emission limitation, whether a may have been misunderstood by some areas) and must be legally and numerical limitation, technological commenters. The criteria were phrased practicably enforceable. control requirement or work practice in such a way that commenters may requirement, would apply during a have misinterpreted them to be criteria 2. What Is Being Finalized in This specific mode of operation as a to be applied by a state retrospectively Action component of the continuously (i.e., after the fact) to an individual The EPA is reiterating its applicable emission limitation. For instance of emissions from a source interpretation of the CAA to allow SIP example, an air agency might elect to during an SSM period, in order to emission limitations to include create an emission limitation with establish whether the source had components that apply during specific different levels of control applicable exceeded the applicable emission modes of source operation, such as during specifically defined periods of limitation. This was not the intended startup and shutdown, so long as those startup and shutdown than during other purpose of the recommended criteria at components together create a normal modes of operation. All the time of the 1999 SSM Guidance, nor continuously applicable emission components of the resulting emission is it the intended purpose now. limitation that meets the relevant limitation must meet the substantive The EPA seeks to make clear in this substantive requirements and requisite requirements applicable to the type of document that the recommended level of stringency for the type of SIP SIP provision at issue, must meet the criteria are intended as guidance to provision at issue and is legally and applicable level of stringency for that states developing SIP provisions that practically enforceable. In addition, the type of emission limitation and must be include emission limitations with EPA is updating the specific legally and practically enforceable. The alternative emission limitations recommendations to states for EPA will evaluate a SIP submission that applicable to specifically defined modes developing such alternative emission establishes a SIP emission limitation of source operation such as startup and limitations described in the February that includes alternative emission shutdown. A state may choose to 2013 proposal, by providing in this limitations applicable to sources during consider these criteria in developing document some additional explanation startup and shutdown consistent with such a SIP provision. The EPA will use and revisions to the text of its its authority and responsibility pursuant these criteria when evaluating whether recommended criteria regarding to sections 110(k)(3), 110(l) and 193 and a particular alternative emission alternative emission limitations. any other CAA provision substantively limitation component of an emission The EPA’s longstanding position is germane to the SIP revision. Absent a limitation meets CAA requirements for that the CAA does not allow SIP properly established alternative SIP provisions. Any SIP revision provisions that include exemptions emission limitation for these modes of establishing an alternative emission from emission limitations for excess operation, a source should be required limitation that applies during startup emissions that occur during startup and to comply with the otherwise applicable and shutdown would be subject to the shutdown. The EPA reiterates that emission limitation. same procedural and substantive review exemptions from SIP emission In addition, the EPA is providing in requirements as any other SIP limitations are also not permissible for this document some additional submission. excess emissions that occur during other explanation and clarifications to its Based on comment on the February periods of normal source operation. A recommended criteria for developing 2013 proposal, the EPA is updating the number of SIP provisions identified in alternative emission limitations criteria to make clear that they are the Petition create automatic or applicable during startup and recommendations relevant for discretionary exemptions from shutdown. The EPA continues to development of appropriate alternative otherwise applicable emission recommend that, in order to be emission limitations in SIP provisions. limitations during periods such as approvable (i.e., meet CAA Thus, in this document, the EPA is ‘‘maintenance,’’ ‘‘load change,’’ ‘‘soot- requirements), alternative requirements providing a restatement of its blowing,’’ ‘‘on-line operating changes’’ applicable to the source during startup recommended criteria that reflects or other similar normal modes of and shutdown should be narrowly clarifying but not substantive changes to operation. Like startup and shutdown, tailored and take into account the text of those criteria. One clarifying the EPA considers all of these to be considerations such as the technological change is removal of the word ‘‘must’’ modes of normal operation at a source, limitations of the specific source from the criteria, to better convey that for which the source can be designed, category and the control technology that these are recommendations to states operated and maintained in order to is feasible during startup and shutdown. concerning how to develop an meet the applicable emission limitations Accordingly, the EPA continues to approvable SIP provision with and during which the source should be recommend the seven specific criteria alternative requirements applicable to

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startup and shutdown and to make clear specific CAA provisions. For clarity and and shutdown events are unavoidable at that other approaches might also be ease of discussion, the EPA is EGUs even though they may be planned. consistent with the CAA in particular responding to these comments, grouped The commenters also attached circumstances. by issue, in this section of this appendices providing an explanation of The clarified criteria for developing document. why emissions are higher for startup and evaluating alternative emission a. Comments that as a technical and shutdown for certain types of EGUs. limitations applicable during startup matter sources cannot meet emission The commenters claimed that the and shutdown are as follows: limitations (or cannot be accurately ‘‘EPA’s proposal to eliminate the States’ (1) The revision is limited to specific, monitored) during startup and SSM provisions, and prohibit them from narrowly defined source categories shutdown. adopting any provisions for startups and using specific control strategies (e.g., Comment: Several commenters shutdowns, could force sources to cogeneration facilities burning natural claimed that as a technical matter, SIP comply with emission limitations gas and using selective catalytic emission limitations cannot be met or during periods when they were never reduction); that monitoring to ensure compliance meant to apply, thus rendering those (2) Use of the control strategy for this with emission limitations cannot occur emissions limitations unachievable.’’ source category is technically infeasible during startup and shutdown. The commenters also noted that the Commenters raised ‘‘practical concerns’’ during startup or shutdown periods; permits for their sources all require that with the EPA’s proposal as it applies to (3) The alternative emission limitation the sources minimize the magnitude emissions during SSM at electric requires that the frequency and duration and duration of emissions during SSM. of operation in startup or shutdown generating units (EGUs). The The implication of this latter comment mode are minimized to the greatest commenters claimed that it is incorrect is that a general duty to minimize extent practicable; to treat periods of startup and shutdown emissions is sufficient to justify the (4) As part of its justification of the as part of ‘‘normal source operation’’ SIP revision, the state analyzes the and claimed that it is fundamentally exemption of all emissions during SSM potential worst-case emissions that incorrect to characterize all periods of events in the underlying SIP provisions. could occur during startup and startup and shutdown as planned Response: Although intended as shutdown based on the applicable events. The commenters claimed that criticism of the EPA’s proposed action, alternative emission limitation; many air pollution control devices these comments in fact support the (5) The alternative emission limitation (APCDs) are subject to technical, Agency’s position that states should requires that all possible steps are taken operational or safety constraints that consider startup and shutdown events to minimize the impact of emissions prevent use or optimization during as they promulgate standards for during startup and shutdown on startup and shutdown periods. The specific industries or even for specific ambient air quality; commenters requested the EPA to sources. The commenters seem to (6) The alternative emission limitation continue the practice of allowing states suggest that because some equipment or requires that, at all times, the facility is to provide ‘‘protection’’ from sources cannot during startup and operated in a manner consistent with enforcement for excess emissions during shutdown meet the emission limits that good practice for minimizing emissions startup and shutdown. The commenters apply during ‘‘regular’’ operation, no and the source uses best efforts claimed that the EPA’s premise for this limit or standards should apply during regarding planning, design, and action is that startup and shutdown startup and shutdown. The EPA operating procedures; and events are planned and sources should disagrees. As the court in Sierra Club (7) The alternative emission limitation be able to meet limits applicable during held, emission limitations must apply at requires that the owner or operator’s these normal operations. The ‘‘all times.’’ That is not to say that the actions during startup and shutdown commenters asserted that the proposal emission limitation must impose the periods are documented by properly does not recognize technical and same numerical limitation or impose the signed, contemporaneous operating logs operational limits and that it conflicts same other control requirement at all or other relevant evidence. with the EPA’s own acknowledgement times. As explained at length in section It may be appropriate for an air in the proposal that there are sometimes VII.A of this document, the EPA agency to establish alternative emission technical, operational and safety limits interprets the CAA to allow SIP limitations that apply during modes of that may prevent compliance with emission limitations that may be a source operation other than during emission limitations during startup and combination of numerical limitations, startup and shutdown, but any such shutdown. The commenters also noted technological control measures and/or alternative emission limitations should that the type of equipment that a control work practice requirements, so long as be developed using the same criteria device is attached to may affect the time the resulting emission limitations are that the EPA recommends for those it takes for a control device to reach properly developed to meet CAA applicable during startup and optimization. Further, the commenters requirements and are legally and shutdown. identified control technologies that practically enforceable. As the cannot achieve reductions until specific 3. Response to Comments commenters noted, the EPA does temperatures are reached and other recognize that some control equipment The EPA received a number of technologies that cannot be used during cannot be operated at all or in the same comments, both supportive and adverse, startup and/or shutdown because of manner during every mode of normal concerning the issue of how air agencies technical limitations or safety concerns. operations. may replace existing exemptions for Finally, the commenters noted that the emissions during SSM events with geographical location and/or weather In its 1999 SSM Guidance, the EPA alternative emission limitations that can have an effect on the operation of expressly recognized that an appropriate apply during startup, shutdown or other a source and control devices during way for a state to address such normal modes of source operation. The startup and shutdown. technological limitations is to set majority of these comments were critical Commenters raised specific concerns alternative emission limitations that of the EPA’s position but did not base regarding pollution controls for EGUs. apply during periods of startup and this criticism on an interpretation of The commenters claimed that startup shutdown as part of the SIP emission

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limitation.252 In these cases the state should be able to establish requirements current approved test measures to verify should consider how the control to regulate emissions, such as a compliance during such modes of equipment works in determining what numerical limitation, technological operation. Even where data are standards should apply during startup control measure or work practice available, the commenter alleged, the and shutdown. In addition, as noted by standard that will apply as a part of the data may not be representative of actual commenters, such standards may vary revised emission limitation. When conditions because of limitations related based on location (e.g., standards in a unplanned startup or shutdown events to low-load conditions. If a state lacks hot and humid area may differ from are part of a malfunction, they should be information to conclude that a limit can those adopted for a cool and dry area). treated the same as a malfunction; be met, the commenter argued, the state Some equipment during startup and however, as with malfunctions, startup should not be required to establish shutdown may be unable to meet the and shutdown events cannot be numerical limits but should instead be same emission limitation that applies exempted from compliance with SIP allowed ‘‘to specify that numerical during steady-state operations and so requirements. Questions of liability and standards do not apply to those alternative limitations for startup and remedy for violations that result from conditions or that those conditions are shutdown may be appropriate.253 malfunctions are to be resolved in the exempt, or should be allowed to However, for many sources, it should be context of an enforcement action, if establish work practice standards.’’ feasible to meet the same emission such an action occurs. Response: The comments of the state limitation that applies during steady- b. Comments that it is impossible, commenter seem to be based on the state operations also during startup and unreasonable or impractical for states to premise that all sources will be unable shutdown.254 These are issues for the develop emission limitations that apply to meet otherwise applicable SIP state to consider in developing specific during startup and shutdown to replace emission limitations during periods of regulations as they revise the deficient existing exemptions. startup and shutdown. The EPA SIP provisions identified in this action. Comment: A number of commenters anticipates that many types of sources The EPA emphasizes that the state has suggested that it will be difficult for should be able during startup and discretion to determine the best means states to develop emission limits that shutdown to meet the same emission by which to revise a deficient provision apply during startup and shutdown. limitation that applies during full to eliminate an automatic or One state commenter reasoned that operation. Additionally, even where a discretionary SSM exemption, so long alternative emission limits are applied specific type of operation may not as that revision is consistent with CAA to facilities in that state through during startup and/or shutdown be able requirements. The EPA will work with individual permits on a case-by-case to meet an emission limitation that the states as they consider possible basis and claimed that there are 500 applies during full operation, the state revisions to deficient provisions. permitted facilities in the state. The should be able to develop appropriate The EPA recognizes that a commenter contended that ‘‘non-steady- limitations that would apply to those malfunction may cause a source to shut state’’ limits would need to be set for types of operations at all similar types down in a manner different than in a startup and shutdown for all 500 of facilities. The EPA believes that there planned shutdown, and in that case, permitted facilities and that such an will be limited, if any, cases where it such a shutdown would typically be effort would be ‘‘time, resource, and may be necessary to develop source- considered part of the malfunction data intensive.’’ The state commenter specific emission requirements for event. However, as part of the normal further contended that it would be startup and/or shutdown. In any event, operation of a facility, sources typically unreasonable to require the state to this is a question that is best addressed will also have periodic or otherwise include such limits ‘‘for every source’’ by each state in the context of the scheduled startup and shutdown of in the SIP because ‘‘permit revisions to the SIP provisions at issue equipment, and steps to limit emissions modifications would need to occur in this action. To the extent that there during this type of event are or can be every time there is a new emission are appropriate reasons to establish an planned for. The EPA disagrees with the source, a source ceases to operate, or an emission limitation with alternative suggestion of commenters that because emission-related regulation is changed.’’ numerical, technological control and/or some startup or shutdown events may A local government commenter stated work practice requirements during be unplanned, all startup and shutdown that to establish limits for startup and startup or shutdown for certain events should be exempt from shutdown that also demonstrate categories of sources, this SIP call action compliance with any requirements. For compliance with the NSR regulations provides the state with the opportunity those events that are planned, the state (including protection of the NAAQS and to do so. PSD increments and maintenance of As to the commenter’s concern that 252 See 1999 SSM Guidance, Attachment at 4–5. BACT or LAER) would be a difficult, such alternative emission limitations 253 The EPA notes that it has taken this approach time-consuming task that was mostly should not be included in a state’s SIP, in its own recent actions establishing emission impractical. the EPA disagrees. The SIP needs to limitations for sources. See, e.g., ‘‘National Emission Standards for Hazardous Air Pollutants An industry commenter claimed that reflect the control obligations of sources, for Major Sources: Industrial, Commercial, and the EPA is encouraging states to adopt and any revision or modification of Institutional Boilers and Process Heaters; Final rule; numerical alternative emission those obligations should not be notice of final action on reconsideration,’’ 78 FR limitations in their SIP provisions that occurring through a separate process, 7137 (January 31, 2013) (example of work practice requirement for startup as a component of a would apply during startup and such as a permit process, which would continuous emission limitation). shutdown. The commenter claimed that not ensure that ‘‘alternative’’ 254 The EPA notes that it has taken this approach adequate and accurate emissions data compliance options do not weaken the in its own recent actions establishing emission are necessary to do so and that such SIP. The SIP is a combination of state limitations for sources. See, e.g., ‘‘National Emission Standards for Hazardous Air Pollutants information is not generally available statutes, regulations and other Residual Risk and Technology Review for Flexible for existing equipment or, in many requirements that the EPA approves for Polyurethane Foam Production; Final rule,’’ 79 FR cases, for new equipment. Furthermore, demonstrating attainment and 48073 (August 15, 2014) (example of NESHAP the commenter asserted, even if an maintenance of the NAAQS, protection emission limitation that is continuous and does not include a different component for periods of startup emission limit could be established for of PSD increments, improvement of or shutdown). startup and shutdown, there are no visibility and compliance with other

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CAA requirements. As discussed in NAAQS and protecting PSD limitation to satisfy SIP requirements is section X.B of this document, any increments). That is incorrect because addressed in this document not as a revisions to obligations in the SIP need the EPA does not interpret the CAA to requirement or even as a to occur through the SIP revision allow such exemptions or affirmative recommendation but rather as an process and must comply with sections defenses for purposes of NSR approach that a state may use at its 110(k)(3), 110(l) and 193 and any other regulations. The suggestion that a SIP option. The EPA cannot foretell the applicable substantive requirements of provision that does not regulate extent to which this optional approach the CAA. emissions during startup and shutdown of adopting other existing standards to As to concerns that a SIP revision will would be more likely to address satisfy SIP requirements may benefit an be necessary every time a new source NAAQS attainment and to protect PSD individual state. For a state choosing to comes into existence, an existing source increments than would a SIP provision use this approach, such work practice is permanently retired or a new that does regulate such emissions is standards must meet the otherwise regulation is promulgated, the EPA does illogical. The EPA further notes that the applicable CAA requirements (e.g., be a not see these as significant concerns. Agency’s interpretation of the CAA, RACT-level control for the source as Unless the startup or shutdown process explicitly set forth in a 1993 guidance part of an attainment plan requirement) for an individual source is truly unique document, has been that periods of and the necessary parameters to make it to that source, then existing SIP startup and shutdown must be legally and practically enforceable (e.g., 255 provisions for sources within the same addressed in any new source permit. have adequate recordkeeping, reporting industrial category should be able to Moreover, the EPA explained in the and/or monitoring requirements to apply to any new source. Moreover, February 2013 proposal, in the SNPR assure compliance). However, it cannot assuming any new source is subject to and in the background memorandum automatically be assumed that emission permitting obligations, then any accompanying the February 2013 limitation requirements in recent applicable startup and shutdown issues proposal concerning the legal basis for NESHAP and NSPS are appropriate for should already be resolved in this action why exemptions and all sources regulated by SIPs. The developing the permit for such source. affirmative defenses applicable to universe of sources regulated under the The state could choose to incorporate emissions during SSM events are not federal NSPS and NESHAP programs is that permit by reference into the SIP at consistent with CAA requirements for not identical to the universe of sources the time it next modifies its SIP. SIP provisions. Further, assuming that there is a source- c. Comments that the EPA should regulated by states for purposes of the specific regulation for a source in the ‘‘authorize’’ states to replace SSM NAAQS. Moreover, the pollutants SIP (a circumstance that the EPA exemptions with ‘‘work practice’’ regulated under the NESHAP (i.e., believes would occur only rarely), the standards developed by the EPA in its HAPs) are in many cases different than state is not obligated to remove such own recent NESHAP and NSPS rules. those that would be regulated for provision when the source is retired. Comment: Commenters suggested that purposes of attaining and maintaining Rather, the state could leave the the EPA should allow states to use work the NAAQS, protecting PSD increments, provision in its rules or remove such a practice standards to address emissions improving visibility and meeting other provision the next time it submits during startup and shutdown. The CAA requirements.257 Thus, the EPA another SIP revision or when it chooses NESHAP rules cited by commenters cannot say as a matter of law that those to do a ‘‘cleanup’’ of the SIP, an activity included the Industrial Boiler MACT federal regulations establish emission that numerous states have taken from rule 256 and the MATS rule, and the limitation requirements appropriate for time to time. Finally, whenever a new NSPS rules cited by the commenters all of the sources that states are regulation is promulgated is precisely included the NSPS for Electric Utility regulating in their SIPs or for the the time that a state should be Steam Generating Units (40 CFR part 60, purpose for which they are being considering the appropriate provisions subpart Da) and the gas turbine NSPS as regulated. The EPA believes, however, that would apply during startup and examples of where the EPA itself has that those federal regulations and the shutdown, as that is the time when the established work practice standards technical materials in the public record state is considering what is necessary to rather than numerical emission for those rules may provide assistance comply with the CAA and what is limitations for periods of startup and for states as they develop and consider necessary to meet attainment, shutdown. The commenters suggested regulations for sources in their states maintenance or other requirements of that where these work practice and may be appropriate for adoption by the CAA. standards are already in place, states the state in certain circumstances. In The local government commenter should be able to rely on the work particular, the NSPS regulations should contended that establishing limits for practice standards rather than having to provide very relevant information for startup and shutdown that also create new SIP provisions. sources of the same type, size and demonstrate compliance with the NSR Response: The EPA agrees that states control equipment type, even if the regulations (including protection of the may adopt work practice standards to sources were not constructed or NAAQS and PSD increments and address periods of startup and modified within a date range that would imposition of BACT- or LAER-level shutdown as a component of a SIP make them subject to the NSPS. The controls) would be a difficult, time- emission limitation that applies EPA therefore encourages states to consuming task that was impractical. continuously. Adoption of work explore these approaches, as well as any The commenter did not provide an practice standards from a NESHAP or other relevant information available, in explanation of how this would be NSPS as a component of an emission difficult. The implication of the 257 While some HAPs are also VOCs or particulate comment is that a SIP provision that 255 See Memorandum from John B. Rasnic, EPA/ matter, many HAPs are not. Moreover, there are provides an exemption or an affirmative OAQPS, January 28, 1993, in the rulemaking docket many VOCs and types of particulate matter that are defense for emissions during startup at EPA–HQ–OAR–2012–0322–0022. not HAPs and thus are not regulated under the 256 The Industrial Boiler MACT rule regulates MACT standards. The MACT standards also do not and shutdown would be compliant with industrial, commercial and institutional boilers and address other criteria pollutants or pollutant the statutory requirements and NSR process heaters at major sources under 40 CFR part precursors from sources that may be relevant for SIP regulations (including attainment of the 63, subpart DDDDD. purposes.

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determining what is appropriate for prohibits unbounded director’s SIP emission limitations for excess revised SIP provisions. discretion provisions in SIPs, including emissions during SSM events. d. Comments that if states remove those provisions that purport to Many commenters on the February existing SSM exemptions and replace authorize unilateral revisions to, or 2013 proposal opposed the EPA’s them with alternative emission exemptions from, SIP emission interpretation of the CAA with respect limitations that apply during startup limitations for emissions during SSM to director’s discretion provisions and shutdown events, this would events.258 simply on the grounds that states are per automatically be consistent with the se entitled to have unfettered discretion requirements of CAA section 193. 2. What Is Being Finalized in This with respect to the content of their SIP Comment: Commenters stated that Action provisions. Other commenters argued section 193 was included in the CAA to that any director’s discretion provision The EPA is reiterating its prohibit states from modifying is merely a manifestation of an air interpretation of the CAA with respect regulations in place prior to November agency’s general ‘‘enforcement to unbounded director’s discretion 15, 1990, unless the modification discretion.’’ Some commenters simply provisions applicable to emissions ensures equivalent or greater reductions asserted that recent court decisions by during SSM events, which is that SIP of the pollutant. The commenters the Fifth Circuit definitively establish provisions cannot contain director’s asserted that to the extent a state that the CAA does not prohibit SIP discretion to alter SIP requirements, replaces ‘‘general excess emissions provisions that include director’s including those that allow for variances exclusions and/or affirmative defense discretion, regardless of whether those or outright exemptions for emissions provisions’’ such amendments would provisions contain any limitations during SSM events. This interpretation per se be more stringent than the whatsoever on the exercise of that has been clear with respect to emissions provisions they replace. The discretion.261 The commenters did not, commenters also contended that any during SSM events in the SSM Policy however, address the specific statutory replacement SIP provision that spells since at least 1999. In the 1999 SSM interpretations that the EPA set forth in out more clearly how a source will Guidance, the EPA stated that it would the February 2013 proposal to explain operate ensures equivalent or greater not approve SIP revisions ‘‘that would why SIP provisions that authorize emission reductions. The commenters enable a State director’s decision to bar unlimited director’s discretion are EPA’s or citizens’ ability to enforce urged the EPA to clarify that any 259 prohibited by CAA provisions revisions pursuant to a final SIP call applicable requirements.’’ Director’s applicable to SIP revisions. would not be considered ‘‘backsliding.’’ discretion provisions operate to allow As explained in detail in the February Response: The EPA agrees with the air agency personnel to make just such 2013 proposal and in section VII.C of commenters that any SIP submission unilateral decisions on an ad hoc basis, this document, the EPA interprets the made by a state in response to this SIP up to and including the granting of CAA to prohibit SIP provisions that call action will need to comply with the complete exemptions for emissions include unlimited director’s discretion requirements of section 193 of the CAA, during SSM events, thereby negating to alter the SIP emission limitations if that section applies to the SIP any possibility of enforcement for what applicable to sources, including those provision at issue. In addition, such SIP would be violations of the otherwise that operate to allow exemptions for provision will also need to comply with applicable emission limitation. Given emissions from sources during SSM section 110(l), which requires that SIP that the EPA interprets the CAA to bar events. The EPA believes that such revisions do not interfere with exemptions from SIP emission provisions that operate to authorize total attainment, reasonable progress or any limitations for emissions during SSM exemptions from emission limitations other applicable requirement of the events in the first instance, the fact that on an ad hoc basis are especially CAA. However, it is premature to draw director’s discretion provisions operate problematic. Given that the EPA the conclusion that any SIP revision to authorize these exemptions on an ad interprets section 110(a)(2)(A) and made by a state in response to this SIP hoc basis compounds the problem. The section 302(k) to preclude exemptions call will automatically meet the EPA acknowledges, however, that both for emissions during SSM events in requirements of section 110(l) and states and the Agency have, in some emission limitations in the first section 193. Such a conclusion could instances, failed to adhere to the instance, it is also impermissible for only be made in the context of requirements of the CAA with respect to states to have SIP provisions that reviewing the actual SIP revision. The this issue consistently in the past, and authorize such exemptions on an ad hoc EPA will address this issue, for each SIP thus the need for this SIP call to correct basis. These provisions functionally 260 revision in response to this SIP call existing deficiencies in SIPs. In order allow the air agency to impose its own action, at the time that it proposes and to be clear about its interpretation of the enforcement discretion decisions on the finalizes action on the SIP revision, and CAA with respect to this point on a EPA and other parties by granting any comments on this issue can be going-forward basis, the EPA is exemptions for emissions that should be raised during those individual reiterating in this action that SIP treated as violations of the applicable rulemaking actions. The EPA provides provisions cannot contain unbounded SIP emission limitations. Provisions that additional guidance to states on the director’s discretion provisions, functionally allow such exemptions are analysis needed to comply with section including those that operate to allow for also inconsistent with requirements of 110(l) and section 193 in section X.B of variances or outright exemptions from the CAA related to enforcement this document. 258 See February 2013 proposal, 78 FR 12459 at 261 For example, commenters on the February C. Director’s Discretion Provisions 12485–86. 2013 proposal cited two decisions of the Fifth Pertaining to SSM Events 259 See 1999 SSM Guidance at 3. Circuit within which the court cited a prior EPA 260 In this action, the EPA is addressing the approval of a SIP revision in Georgia that contained 1. What the EPA Proposed specific SIP provisions with director’s discretion director’s discretion provisions supposedly provisions that the Petitioner listed in the Petition. comparable to those at issue in the Fifth Circuit In the February 2013 proposal, the In the event that there are other such impermissible cases. These provisions were not included in the EPA stated and explained in detail the director’s discretion provisions in existing SIPs, the Petition and the EPA is not reexamining those reasons for its belief that the CAA EPA will address those provisions in a later action. provisions as part of this action.

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including: (i) The general requirements Comment: A number of state and without meeting the requirements for a of section 110(a)(1) that SIPs provide for industry commenters argued that SIP revision. Pursuant to the EPA’s own enforcement; (ii) the section 110(a)(2)(A) because states have great discretion responsibilities under sections requirement that the specific emission when developing SIP provisions in 110(k)(3), 110(l) and 193 and any other limitations and other contents of SIPs be general, this necessarily includes the CAA provision substantively germane to enforceable; and (iii) the section ability to create director’s discretion the specific SIP provision at issue, it 110(a)(2)(C) requirement that SIPs provisions in SIPs that authorize state would be inappropriate for the Agency contain a program to provide for personnel to grant unilateral variances to approve a SIP provision that enforcement. Moreover, these or exemptions for emissions during automatically preauthorized the state provisions operate to interfere with the SSM events. According to commenters, unilaterally to revise the SIP emission enforcement structure of the CAA the overarching principle of limitation without meeting the provided in section 113 and section 304, ‘‘cooperative federalism’’ and court applicable procedural and substantive through which the EPA and other decisions concerning the division of statutory requirements for a SIP parties have authority to seek regulatory responsibilities between the revision. Section 110(i) prohibits enforcement for violations of CAA states and the EPA support their view modification of SIP requirements for requirements, including SIP emission that states can create SIP provisions that stationary sources by either the state or limitations. provide authority to alter the SIP the EPA, except through specified There are two ways in which such a emission limitations or other processes. The EPA’s implementing provision can be consistent with CAA requirements via director’s discretion regulations applicable to SIP provisions requirements: (1) When the exercise of provisions without restriction. likewise impose requirements for a director’s discretion by the state agency Response: The EPA disagrees with the specific process for the approval of SIP to alter or eliminate the SIP emission commenters’ view that director’s revisions.262 In addition, section 116 limitation can have no effect for discretion provisions in SIPs are per se explicitly prohibits a state from purposes of federal law unless and until permissible because of the principles of adopting or enforcing regulations for the EPA ratifies that state action with a cooperative federalism. As explained in sources that are less stringent than what SIP revision; or (2) when the director’s more detail in section V.D.2 of this is required by the emission limitations discretion authority is adequately document, states and the EPA each have in its SIP, i.e., the emission limitation bounded such that the EPA can authorities and responsibilities under previously approved by the EPA as ascertain in advance, at the time of the CAA. With respect to SIPs, under meeting the requirements of the CAA approving the SIP provision, how the section 107(a) the states have primary applicable to that specific SIP provision. exercise of that discretion to alter the responsibility for assuring attainment of It is a fundamental tenet of the CAA that SIP emission limitations for a source the NAAQS within their borders. Under states cannot unilaterally change SIP could affect compliance with other CAA section 110(a) the states have a statutory provisions, including the emission requirements. If the provision includes duty to develop and submit a SIP that limitations within SIP provisions, director’s discretion that could result in provides for the attainment, without the EPA’s approval of the violation of any other CAA requirement maintenance and enforcement of the change through the appropriate process. for SIPs, then the EPA cannot approve NAAQS, as well as meeting many other This core principle has been recognized the provision consistent with the CAA requirements and objectives. The by multiple courts.263 requirements of section 110(k)(3) and specific procedural and substantive b. Comments that director’s discretion section 110(l). For example, a director’s requirements that states must meet for provisions are an exercise of discretion provision that authorizes SIPs are set forth in section 110(a)(1) ‘‘enforcement discretion.’’ state personnel to excuse source and section 110(a)(2) and in other more Comment: Several state and industry compliance with SIP emission specific requirements throughout the commenters asserted that the EPA was limitations during SSM events could not CAA (e.g., the attainment plan wrong to interpret the CAA to preclude be approved because the provision requirements for each of the NAAQS as director’s discretion provisions, because would run afoul of the requirement that specified in part D). By contrast, the such provisions are merely an exercise sources be subject to emission EPA has its own statutory authorities of a state’s traditional ‘‘enforcement limitations that apply continuously, and responsibilities, including the discretion.’’ consistent with section 302(k). obligation to review new SIP submissions for compliance with CAA Response: The EPA disagrees that a 3. Response to Comments procedural and substantive director’s discretion provision in a SIP The EPA received a number of requirements pursuant to sections is a valid exercise of enforcement comments, both supportive and adverse, 110(k)(3), 110(l) and 193. In addition, discretion. Normally, the concept of concerning the issue of director’s the EPA has authority to assure that enforcement discretion is understood to discretion provisions in SIPs. The previously approved SIP provisions mean that a regulator has discretion to majority of these comments were critical continue to meet CAA requirements, determine whether a specific violation of the EPA’s position but did not base whether through the SIP call authority 262 this criticism on an interpretation of of section 110(k)(5) or the error See, e.g., 40 CFR 51.104(d) and 40 CFR 51.105. 263 See, e.g., Sierra Club v. TVA, 430 F.3d 1337, specific CAA provisions. For clarity and correction authority of section 110(k)(6). 1346 (11th Cir. 2005) (‘‘If a state wants to add, ease of discussion, the EPA is As the EPA explained in detail in the delete, or otherwise modify a SIP provision, it must responding to these comments, grouped February 2013 proposal, SIP provisions submit the proposed change to EPA for approval’’); by issue, in this section of this that include unbounded director’s Duquesne Light Co. v. EPA, 698 F.2d 456, 468 n.12 (D.C. Cir. 1983) (‘‘with certain enumerated document. discretion to alter the otherwise exceptions, states do not have the power to take any a. Comments that broad state applicable emission limitations are action modifying any requirement of their SIPs, discretion in how to develop SIP inconsistent with CAA requirements. without approval from EPA’’); Train v. NRDC, 421 provisions includes the authority to Such provisions purport to authorize air U.S. 60, 92 (1975) (‘‘[A] polluter is subject to existing requirements until such time as he obtains create provisions that include director’s agency personnel unilaterally to change a variance, and variances are not available under discretion variances or exemptions for or to eliminate the applicable SIP the revision authority until they have been excess emission during SSM events. emission limitations for a source approved by both the State and the Agency’’).

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of the law by a source warrants section 113 and section 304, through are per se valid because ‘‘[a]ll of the SIP enforcement and to determine the which the EPA and other parties are provisions went through a public nature of the remedy to seek for any authorized to bring enforcement actions procedure at the time of their initial SIP such violation. The EPA of course for violations of SIP emission approval.’’ agrees that states have enforcement limitations. The state’s decision not to Response: First, the EPA disagrees discretion of this type and that the states exercise its own enforcement discretion with the theory that a SIP provision that may exercise such enforcement cannot be a basis on which to eliminate includes director’s discretion authority discretion as they see fit, as does the the legal rights of the EPA and other for state personnel to modify or grant Agency itself. However, the EPA does parties to seek to enforce. exemptions from SIP emission not agree that air agencies may create The commenters also suggested that limitations unilaterally is valid merely SIP provisions that operate to eliminate the director’s discretion provisions by virtue of the fact that the Agency the ability of the EPA or citizens to authorizing exemptions for SSM events previously approved it. By definition, enforce the emission limitations of the are nonsegregable parts of the emission when the EPA makes a finding of SIP. The EPA stated clearly in the 1999 limitations, i.e., that states have substantial inadequacy and issues a SIP SSM Guidance that it would not established the numerical limitations at call, that signifies that the Agency approve SIP provisions that ‘‘would overly stringent levels specifically in previously approved a SIP provision enable a State director’s decision to bar reliance on the existence of exemptions that does not meet CAA requirements, EPA’s or citizens’ ability to enforce for any emissions during SSM events. whether that deficiency existed at the applicable requirements.’’ 264 The Although commenters did not provide time of the original approval or arose Agency explained at that time that such facts to support the claims that states set later. The EPA has explicit authority an approach is inconsistent with the more stringent emission limitations in under section 110(k)(5) to require that a requirements of the CAA applicable to reliance on SSM exemptions, in general state eliminate or revise a SIP provision the enforcement of SIPs. or with respect to any specific emission that the Agency previously approved, The commenters’ argument was that limitation, the EPA acknowledges that whenever the EPA finds an existing SIP states may create SIP provisions through this could possibly have been the case provision to be substantially inadequate which they may unilaterally decide that in some instances. Even if a state had to meet CAA requirements. The fact that the emissions from a source during an taken this approach, however, it does the EPA previously approved it does not SSM event should be exempted, such not follow that SIP provisions mean that a deficient provision may that the emissions cannot be treated as containing exemptions for SSM events remain in the SIP forever once the a violation by anyone. A common are legally permissible. Emission Agency determines that it is deficient. formulation of such a provision limitations in SIPs must be continuous. Second, the EPA disagrees that the provides only that the source needs to When a state takes action in response to fact that a SIP provision underwent notify the state regulatory agency that an this SIP call to eliminate the director’s public process at the time of its original exceedance of the emission limitations discretion provisions or otherwise to creation by the state, or at the time of occurred and to report that the revise them, the state may elect to its approval by EPA as part of the SIP, emissions were the result of an SSM overhaul the emission limitation means per se that the provision is event. If those minimal steps occur, then entirely in order to address this concern. consistent with CAA requirements. If an such provisions commonly authorize So long as the resulting revised SIP existing SIP provision is deficient state personnel to make an emission limitation is continuous and because it in effect allows a state to administrative decision that the meets the requirements of sections revise existing SIP emission limitations emissions in question were not a 110(k)(3), 110(l) and 193 and any other without meeting the many explicit ‘‘violation’’ of the applicable emission sections that are germane to the type of statutory requirements for a SIP limitation. It may be entirely SIP provision at issue, the state has revision, the fact that the revision that appropriate for the state agency to elect discretion to revise the provision as it created the impermissible provision not to bring an enforcement action determines best. itself met the proper procedural based on the facts and circumstances of c. Comments that the EPA’s having requirements for a SIP revision is a given SSM event, as a legitimate previously approved a SIP provision irrelevant. Even perfect compliance exercise of its own enforcement that authorizes the granting of variances with the procedural requirements for a discretion. However, by creating a SIP or exemptions for SSM events through SIP revision at the time of its provision that in effect authorizes the the exercise of director’s discretion development by the state or its approval state agency to alter or suspend the renders the provision consistent with by the EPA does not override a otherwise applicable SIP emission CAA requirements. substantive deficiency in the provision, limitations unilaterally through the Comment: Several state and industry nor does it preclude the later issuance granting of exemptions, the state agency commenters argued that the EPA’s past of a SIP call to correct a substantive would functionally be revising the SIP approval of a SIP provision with a deficiency. with respect to the emission limitations director’s discretion feature Third, the EPA disagrees with the on the source. This revision of the automatically means that the exercise of circular logic that because a deficient applicable emission limitation would that authority (whether to revise the provision with director’s discretion have occurred without satisfying the applicable SIP emission limitations currently exists in a SIP, it means that requirements of the CAA for a SIP unilaterally or to grant ad hoc exercise of the director’s discretion to revision. As a result of this ad hoc exemptions from SIP emission grant variances or outright exemptions revision of the SIP emission limitation, limitations) is valid under the CAA. One to sources for emissions during SSM the EPA and other parties would be commenter asserted that because the events is therefore consistent with CAA denied the ability to exercise their own EPA has previously approved such a requirements for SIPs. An unbounded enforcement discretion. This is contrary provision, ‘‘that discretion is itself part director’s discretion provision that to the fundamental enforcement of the SIP, and the exercise of discretion authorizes an air agency to alter or structure of the CAA, as provided in in no way modifies SIP requirements.’’ eliminate the otherwise applicable SIP Another commenter argued that emission limitation functionally allows 264 1999 SSM Guidance at 3. director’s discretion provisions in SIPs the state to revise the SIP emission

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limitation without meeting the commenters did not, however, address words, the EPA was being asked to requirements for a SIP revision. In the specific statutory provisions approve a SIP provision without particular, when such provisions identified by the EPA in the February knowing how the SIP provision would authorize state personnel to grant 2013 proposal and the explanation that actually be implemented and thus outright exemptions from the SIP the Agency provided with respect to without knowing whether the results emission limitations, this is tantamount this issue. would be consistent with applicable to a revision of the SIP emission Response: The EPA disagrees that CAA requirements. limitation without complying with the either decision cited by commenters As the commenters stated, the court procedural and substantive stands for the definitive proposition in the Luminant director’s discretion requirements of the CAA applicable to they assert, i.e., that director’s discretion case vacated the EPA’s disapproval of SIP revisions, including section 110(l), provisions in SIPs are not precluded by the SIP submission for several reasons, section 193 and any other substantive the CAA. In Luminant Generation Co. v. including the rejection of the Agency’s requirements applicable to the EPA (the Luminant director’s discretion argument that it could not approve the particular SIP emission limitation in case), the court evaluated the EPA’s SIP submission due to the director’s question. disapproval of a SIP submission from discretion feature of the SIP provisions d. Comments that director’s discretion the state of Texas that created SIP and the resulting lack of provisions in SIPs are not prohibited by provisions to implement minor source ‘‘replicability.’’ 269 The court found that the CAA, based on recent judicial permitting requirements. The EPA the EPA ‘‘failed to identify a single decisions. disapproved the SIP submission for provision of the Act that Texas’s Comment: A number of state and several reasons, one of which was based program violated, let alone explain its industry commenters argued that on the director’s discretion provision reasons for reaching its conclusion.’’ 270 nothing in the CAA explicitly prohibits prohibiting use of the standard permit With respect to the director’s discretion states from having SIP provisions that for a pollution control project that the issue, phrased in terms of include director’s discretion director determines raises health ‘‘replicability,’’ the court found that authorization for state personnel to concerns or threatens the NAAQS. The ‘‘[n]ot once in its proposed or final modify or eliminate existing SIP EPA was concerned that this provision disapproval, or in its argument before provisions unilaterally, with or without gave the director of the state agency this court, has the EPA pointed to any any process or within any limiting discretion to make case-by-case applicable provision of the Act or its parameters. In support of this decisions about what the specific permit regulations that include a ‘replicability’ proposition, the commenters cited terms would be for each source, without standard.’’ recent decisions of the Fifth Circuit in sufficient parameters or limitations on The EPA believes that the court’s two cases concerning the EPA’s the exercise of that authority. Thus, the decision in the Luminant director’s disapproval of SIP submissions from the EPA reasoned that without any discretion case is distinguishable on state of Texas. Commenters argued that boundaries on the exercise of this several important grounds. Most the EPA’s interpretation of the CAA to authority for director’s discretion, it importantly, the court rejected the prohibit director’s discretion provisions would be impossible for the Agency to EPA’s disapproval of the SIP submission in SIPs is incorrect in light of the know in advance (i.e., at the time of because the Agency had not provided an decision of the court in Texas v. EPA.265 acting on the SIP submission) whether adequate explanation of why the According to commenters, the court’s the state agency would only use that director’s discretion provision at issue decision establishes that no provision of discretion in a way that would result in was inconsistent with the requirements the CAA bars such provisions. To permits with terms consistent with of the CAA for SIP provisions. The court support this contention, one commenter meeting CAA requirements.267 As the emphasized the absence of any quoted the court’s decision extensively, EPA explained in the rulemaking at explanation in the administrative record highlighting the statement, ‘‘. . . the issue in the Luminant director’s for the proposed or final actions that EPA has invoked the term ‘director discretion case, ‘‘[t]here are no discretion’ as if that term were an replicable conditions in the PCP Nonattainment NSR (NNSR) for the 1997 8-Hour independent and authoritative standard, Standard Permit that specify how the Ozone Standard, NSR Reform, and a Standard and has not linked the term to the [TCEQ] Director’s discretion is to be Permit; Proposed rule,’’ 74 FR 48467 at 48476 (September 23, 2009). language of the CAA.’’ Similarly, the implemented’’ for the individual case- 269 268 The term ‘‘replicable’’ was taken from EPA commenters cited another decision of by-case determinations. In other guidance concerning SIP provisions for attainment that court in the Luminant director’s plans. As a ‘‘fundamental principle’’ for SIP discretion case.266 From that decision, 267 The EPA notes that the court in the Luminant provisions and permits, the EPA explained that the commenters quoted the court’s director’s discretion case focused on the fact that requirements imposed upon sources should be statement that the ‘‘EPA had no legal the director’s discretion provision included the ‘‘replicable’’; i.e., if they contain ‘‘procedures for discretion to require more of sources, if there ‘‘are changing the rule, interpreting the rule, or basis to demand ‘replicable’ limitations health effects concerns or the potential to exceed determining compliance with the rule, the on the Director’s discretion’’ and the the [NAAQS],’’ and the court expressed that it did procedures are sufficiently specific and succeeding sentence, ‘‘[n]ot once in its not understand why that requirement was not alone nonsubjective so that two independent entities adequate to allay the Agency’s concerns. Luminant applying the same procedures would obtain the proposed or final disapproval, or in its Generation Co. v. EPA, 675 F.3d 917, 929 n.11. The same result.’’ See General Preamble, 57 FR 13498 argument before this court, has the EPA EPA’s primary concern, although not clearly at 13568 (April 16, 1992). The EPA’s intent in using pointed to any applicable provision of articulated in the rulemaking record, was that at the this term, although not clearly expressed in the the Act or its regulations that includes time of acting on the SIP submission, there was no rulemaking record, has been to indicate that a way for the Agency to know in advance what the properly constructed SIP provision with an a ‘replicability’ standard.’’ These state would require of any source in the first appropriate degree of discretion and flexibility instance, let alone what additional things the state would contain sufficient specifications and limits 265 690 F.3d 670 (5th Cir. 2012). might require in situations where it unilaterally on the exercise of that discretion such that the 266 Luminant Generation Co. v. EPA, 675 F.3d 917 decided that more might be necessary in any given Agency could adequately evaluate the provision at (5th Cir. 2012). Throughout this document, the EPA permit. the time of its submission. Absent sufficient limits refers to this as the Luminant director’s discretion 268 See ‘‘Approval and Promulgation of on the discretion, the EPA could not properly case, to distinguish it from another Luminant case Implementation Plans; Texas; Revisions to the New evaluate how exercise of the discretion could affect cited in this document, Luminant Generation v. Source Review (NSR) State Implementation Plan compliance with CAA requirements. EPA, 714 F.3d 841 (5th Cir. 2013). (SIP); Prevention of Significant Deterioration (PSD), 270 675 F.3d 917, 924 (5th Cir. 2012).

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explained which specific provisions of including that the Agency believed the limitations on the exercise of such the CAA preclude such a provision and specific provisions at issue provided the discretion. As the court stated it: why. In the February 2013 proposal and state agency with too much director’s There is, in fact, no independent and in this document, the EPA has discretion authority to decide what, if authoritative standard in the CAA or its identified and explained the specific any, monitoring, recordkeeping and implementing regulations requiring that a CAA provisions that operate to preclude reporting requirements should be state director’s discretion be cabined in the unbounded director’s discretion imposed on any individual affected way that the EPA suggests. Therefore, the provisions in SIPs. source in its permit. The EPA concluded EPA’s insistence on some undefined limit on Second, the court in the Luminant that if at the time it was evaluating the a director’s discretion is . . . based on a director’s discretion case based its standard that the CAA does not empower the SIP provision for approval it could not EPA to enforce. decision in part on the view that the reasonably anticipate how the state specific director’s discretion provision agency would exercise the discretion However, the court reached this at issue in that case would always result authorized in the provision, this made conclusion based upon the in more stringent regulation of affected the submission unapprovable ‘‘for being administrative record before it and sources and always entail exercise of the too vague and not replicable.’’ 272 The reiterated that it could not consider any discretion in a way that would protect Texas court disagreed. The court basis for the disapproval not articulated the NAAQS.271 Although its view was concluded that the ‘‘degree of discretion by the EPA in the rulemaking record: not articulated clearly in the record, the conferred on the TCEQ director cannot ‘‘We are reviewing an agency’s EPA did not agree with that assessment sustain the EPA’s rejection of the MRR decisionmaking process, so the agency’s because it was not possible to evaluate requirements’’ and that the EPA insisted action must be upheld, if at all, on the basis articulated by the agency in advance how the director’s discretion on ‘‘some undefined limit on a itself.’’ 277 Given the court’s conclusion authority would in fact be exercised. By director’s discretion . . . based on a that the EPA had failed to provide any contrast, the SIP provisions at issue in standard that the CAA does not explanation as to why the CAA this action are not structured in such a empower the EPA to enforce.’’ 273 way as to allow the exercise of precludes director’s discretion discretion only to make the emission The EPA believes that the decision of provisions in the challenged limitations more stringent. To the the court in Texas v. EPA is also rulemaking, the EPA believes that the contrary, the director’s discretion distinguishable with respect to the issue court did not have the opportunity to provisions at issue in this action of whether director’s discretion consider the Agency’s rationale that is authorize the state agencies to excuse provisions are consistent with CAA provided in this action. In the February sources from compliance with the requirements. First, the Texas court 2013 proposal and in this document, the otherwise applicable SIP emission based its decision primarily on the EPA is heeding the court’s limitation during SSM events. Were the conclusion that the EPA had failed to admonishment to explain in the sources seeking these discretionary identify and explain the provisions of rulemaking record the statutory basis for exemptions meeting the applicable SIP the CAA that (i) preclude approval of the Agency’s interpretation of the CAA emission limitations, they would not SIP provisions that include unbounded to prohibit director’s discretion need an exemption. It logically follows director’s discretion or (ii) impose a provisions that are inadequately that sources are seeking these requirement for ‘‘replicability’’ in the bounded. As explained in this action, exemptions because their emissions exercise of director’s discretion. The SIP provisions that functionally during such events are higher than the Texas court emphasized that although authorize a state agency to amend otherwise applicable emission the EPA disapproved the SIP existing SIP emission limitations limitation allows. Unlike the specific submission for failure to meet CAA applicable to a source unilaterally director’s discretion provision at issue requirements, the court found that the without a SIP revision are contrary to in the Luminant director’s discretion EPA ‘‘is yet to explain why.’’ 274 The multiple specific provisions of the CAA case, which the court said ‘‘can only court further reasoned that ‘‘the EPA has that pertain to SIP revisions. serve to protect the NAAQS,’’ the invoked the term ‘director discretion’ as Third, the Texas court emphasized exercise of the director’s discretion if that term were an independent and that, notwithstanding the apparent authority in the SIP provisions at issue authoritative standard, and has not flexibility that the director’s discretion in this action can operate to make the linked the term to language of the provision provided to the state agency emission limitations less stringent and CAA.’’ 275 Later in the opinion the court with respect to deciding on the level of can thereby undermine attainment and explicitly emphasized that because it monitoring, recordkeeping and maintenance of the NAAQS, protection was reviewing the EPA’s reporting to be imposed on each source of PSD increments, improvement of decisionmaking process in the by permit, the state’s regulations visibility and achievement of other CAA disapproval action, the court could not explicitly prohibited relaxations of the objectives. consider any basis for the disapproval level of control. The court gave weight In the Texas decision, the court that was not articulated by the EPA in to the explicit wording of the specific evaluated the EPA’s disapproval of the rulemaking record.276 The EPA is provision at issue in the case which another SIP submission from the state of explaining its interpretation of the provided that ‘‘[t]he existing level of Texas that pertained to requirements for relevant CAA provisions in this action. control may not be lessened for any the permitting program for minor Second, the Texas court also asserted facility.’’ 278 The EPA does not agree sources. The EPA had disapproved the its own conclusion that there is nothing that the specific requirements for submission for several different reasons, in the CAA that pertains to director’s monitoring, recordkeeping and discretion in SIP provisions or to any reporting for a given source are 271 Luminant Generation Co. v. EPA, 675 F.3d unrelated to the level of control. In any 917, 929 n.11 (‘‘The provision at issues states: ‘‘This 272 Id., 690 F.3d 670, 680. event, the director’s discretion standard permit must not be used [if] the executive 273 provisions of the type at issue in this director determines there are health effects Id., 690 F.3d 670, 682. concerns or the potential to exceed a [NAAQS] . . . 274 Id., 690 F.3d 670, 681. until those concerns are addressed to the 275 Id. 277 Id., 690 F.3d 670, 682. satisfaction of the executive director.’’). 276 Id., 690 F.3d 670, 682. 278 Id., 690 F.3d 670, 681.

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action are not limited to those that revisions of existing EPA-approved SIP ‘‘director’s discretion’’ concern if the would not ‘‘lessen’’ the level of control. provisions in particular. The SIP provision creates a permit program To the contrary, the provisions at issue commenters failed to consider the core through which state officials grant in this SIP call action authorize state problem with unbounded director’s sources variances or exemptions from agency personnel to grant outright discretion provisions (i.e., that such otherwise applicable SIP provisions. exemptions from otherwise applicable provisions allow for unilateral revision, Comment: State commenters argued SIP emission limitations during SSM relaxation or exemption from SIP that they have imposed sufficient events. Thus, the EPA concludes that emission limitations, without adequate boundaries on the exercise of director’s this portion of the reasoning of the evaluation by the EPA and the public). discretion provisions in their SIPs, by Texas decision would not apply to the As a result, the commenters do not virtue of the fact that they grant sources current action. address the proper application of CAA variances or exemptions from SIP Finally, the Texas court viewed the provisions that govern SIP revisions and emission limitations through a fact that the EPA had previously the rationale for requiring that such SIP permitting program. Commenters stated approved similar director’s discretion revisions be reviewed by the EPA in that their permitting program provides a provisions in Texas and in Georgia as accordance with the explicit more structured process and an evidence that such provisions must be requirements of sections 110(k)(3), opportunity for public input into the consistent with CAA requirements. The 110(l) and 193 and the other decisions concerning variances or EPA acknowledges that it has, from time requirements germane to the SIP exemptions. Moreover, they argued that to time, approved SIP submissions that provision at issue (e.g., RACT-level state law does provide preconditions to it should not have, whether through controls for sources located in the granting of variances or exemptions failure to recognize an issue, through a nonattainment areas). Indeed, the and thus these are not granted misunderstanding of the facts, through a commenters did not acknowledge the automatically. Based upon these mistaken interpretation of the law or as inherent problem with director’s procedural requirements, the a result of other such circumstances. discretion provisions, which is that commenters contended that their Congress itself clearly recognized that such provisions have the potential to exercise of director’s discretion is not the EPA may occasionally take incorrect undermine SIP emission limitations ‘‘unbounded’’ as the EPA suggested in action on SIP submissions, whether dramatically through ad hoc exemptions the February 2013 proposal. incorrect at the time of the action or as for excess emissions during SSM events. Response: The EPA acknowledges a result of later events. Section 110(k)(5) By allowing for exemptions for that a permitting program can provide a and section 110(k)(6) both provide the emissions during SSM events, these more structured and consistent process EPA with explicit authority to address provisions also remove the incentives than may be provided in a SIP for past approvals of SIP submissions that for sources to be properly designed, granting variances and exemptions from turn out to have been mistakes, whether maintained and operated so that they SIP emission limitations and related at the time of the original approval or as will comply continuously with SIP requirements and may provide more a result of later developments. The fact emission limitations during all modes of opportunity for public participation in that the EPA has explicit authority to source operation. those decisions. However, to the extent issue a SIP call establishes that Congress The EPA notes that the commenters that the end result of this permitting anticipated that the Agency may at some did not acknowledge or address the process is that a given source is given point approve a SIP provision that it specific explanation that the Agency a less stringent emission limitation than should not have approved because the provided in the February 2013 proposal, the otherwise applicable SIP emission provision is substantially inadequate to including the EPA’s identification of the limitation or is given an outright meet CAA requirements. The EPA does specific statutory provisions applicable exemption from the SIP emission not agree, however, that its approval of to the revision of SIP provisions. limitation, this result still functionally a comparable SIP provision at some Because these commenters did not constitutes a revision of the SIP time in the past negates the Agency’s address the EPA’s explanation of the emission limitation without meeting the authority to disapprove a current SIP CAA provisions that it interprets to statutory requirements for a SIP submission that fails to meet applicable preclude director’s discretion provisions revision. The EPA is not authorized to procedural or substantive requirements. in SIPs, the commenters have not approve a program that in essence A challenger of the disapproval can provided substantive comment allows a SIP revision without always argue that the inconsistency concerning the EPA’s interpretation of compliance with the applicable between the prior approval and the later the CAA on this issue. The commenters statutory requirements in sections disapproval is evidence that the EPA is did not dispute the EPA’s interpretation 110(k)(3), 110(l) and 193 and any other being arbitrary and capricious in its of the CAA on this particular point on provision that is germane to the interpretation of the statute—but at statutory grounds. Rather, the particular SIP emission limitation at bottom the correct question is whether commenters argued based on their own issue. the Agency is correctly interpreting the policy preferences for an approach to The EPA emphasizes that air agencies CAA in the disapproval action currently director’s discretion provisions that always retain the ability to regulate being challenged. The fact that the EPA would allow sources to receive ad hoc sources more stringently than required may have approved another SIP exemptions for excess emissions during by the provisions in its SIP. Section 116 submission with a comparable defect in SSM events without the need for explicitly provides, with certain limited the past does not override the imposition of an appropriate alternative exceptions, that states retain the requirements of the CAA. SIP emission limitation, for adequate authority to regulate emissions from Significantly, the commenters public process for development of such sources. Unless preempted from apparently make the same mistake as an alternative SIP emission limitation or controlling a particular source, nothing the EPA did in the rulemakings at issue for oversight by the EPA of any revision precludes states from regulating sources in the cited court decisions, by not to the applicable SIP emission more stringently than otherwise adequately addressing the relevant limitations as required by the CAA. required to meet CAA requirements, so statutory provisions that apply to SIP e. Comments opposed to the EPA’s long as they meet CAA requirements. provisions in general and apply to approach on the premise that there is no However, if there is an applicable

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emission limitation in a SIP provision would be inconsistent with a. Comments that supported the (or an EPA regulation promulgated requirements of title I of the CAA.279 clarification of ambiguous enforcement pursuant to sections 111 or 112), section The EPA acknowledged, however, that discretion provisions in general but 116 explicitly stipulates, ‘‘such State or both the states and the Agency have opposed the EPA’s views with respect to political subdivision may not adopt or failed to adhere to the CAA with respect specific SIP provisions. enforce any emission standard or to this issue in the past, and thus the Comment: Environmental group emission limitation which is less need for this SIP call action to correct commenters disagreed with the EPA’s stringent than the standard or limitation the existing deficiencies in SIPs. proposed denial of the Petition with under such plan or limitation.’’ Thus, a respect to specific enforcement 2. What Is Being Finalized in This discretion provisions in the SIPs of state could elect to regulate a source Action more stringently than required by a several states. The commenters specific SIP emission limitation (e.g., by In order to be clear about this contended that the SIP provisions are imposing a more stringent numerical important point on a going-forward too ambiguous for courts to recognize emission limitation on a particular basis, the EPA is reiterating that SIP that the exercise of enforcement source or by imposing additional provisions cannot contain enforcement discretion by state personnel did not recordkeeping, reporting and discretion provisions that would bar preclude enforcement by the EPA or monitoring requirements in addition to enforcement by the EPA or citizens for others. those of the SIP provision), but the state any violation of SIP requirements if the Response: The EPA disagrees with cannot weaken or eliminate the SIP state elects not to enforce. these comments. In the February 2013 emission limitation (e.g., by granting The EPA has previously issued a SIP proposal, the EPA explained how it exemptions from applicable SIP call to a state specifically for purposes reads the specific enforcement emission limitations for emissions of clarifying an existing SIP provision to discretion provisions in the SIPs of each during SSM events). If a state elects to assure that regulated entities, regulators of these states. The EPA explained its alter an emission limitation in a SIP and courts will not misunderstand the evaluation of these provisions in detail. provision, the state must do so in correct interpretation of the In comments submitted on the February 280 accordance with the statutory provision. As the EPA stated in that 2013 proposal, the states in question provisions applicable to SIP revisions. action: agreed with the EPA’s reading of the Finally, the EPA notes, if a state elects . . . SIP provisions that give exclusive provisions. Each state agreed that these to use a permitting process as a source- authority to a state to determine whether an provisions only applied to air agency by-source means of imposing more enforcement action can be pursued for an personnel and not to the EPA or any stringent emission limitations or exceedance of an emission limit are other party. Thus, the EPA believes that inconsistent with the CAA’s regulatory there should be no dispute about the additional requirements on sources, scheme. EPA and citizens, and any court in doing so can be an acceptable approach. proper interpretation of these SIP which they seek to file an enforcement claim, provisions in any potential future So long as the underlying SIP provisions must retain the authority to independently are adequate to provide the requisite enforcement action. evaluate whether a source’s exceedance of an b. Comments that opposed the EPA’s level of control or requirements to emission limit warrants enforcement 281 issuing SIP calls to obtain state agency assure enforceability, a state is free to action. clarification of ambiguous enforcement use a permitting program to impose The EPA has explained in previous discretion provisions in SIPs. additional requirements above and iterations of its SSM Policy that a Comment: One commenter asserted beyond those provided in the SIP. fundamental principle of the CAA with that requiring states to correct an D. Enforcement Discretion Provisions respect to SIP provisions is that the ambiguous ‘‘enforcement discretion’’ Pertaining to SSM Events provisions must be enforceable not only provision in its SIP in order to eliminate by the state but also by the EPA and ‘‘perceived ambiguity’’ is a ‘‘waste of 1. What the EPA Proposed others pursuant to the citizen suit resources.’’ Although agreeing that a In the February 2013 proposal, the authority of section 304. Accordingly, state’s exercise of enforcement EPA explained in detail that it believes the EPA has long stated that SIP discretion cannot affect enforcement by that the CAA allows states to adopt SIP provisions cannot be structured such the EPA or other parties under the provisions that impose reasonable limits that a decision by the state not to citizen suit provision, the commenter upon the exercise of enforcement enforce may bar enforcement by the believed that the existence of ambiguous discretion by air agency personnel, so EPA or other parties. provisions that could be misconstrued long as those provisions do not apply to 3. Response to Comments by a court to bar enforcement by the the EPA or other parties. The EPA EPA or others if the state elects not to believes that its interpretation of the The EPA received a small number of enforce is not a significant concern. CAA with respect to enforcement comments concerning the issue of Response: The EPA agrees with the discretion provisions applicable to ambiguous enforcement discretion commenter that a state’s legitimate emissions during SSM events has been provisions in SIPs. For clarity and ease exercise of enforcement discretion not clear in the SSM Policy. In the 1982 of discussion, the EPA is responding to to enforce in the event of violations of SSM Guidance and the 1983 SSM these comments, grouped by issue, in SIP provisions should have no bearing Guidance, the EPA indicated that states this section of this document. whatsoever on whether the EPA or could elect to adopt SIP provisions that others may seek to enforce for the same 279 include criteria that apply to the See 1999 SSM Guidance at 3. violations. However, the Agency 280 See ‘‘Finding of Substantial Inadequacy of exercise of enforcement discretion by Implementation Plan; Call for Utah State disagrees with the commenter state personnel. In the 1999 SSM Implementation Plan Revision,’’ 75 FR 70888 at concerning whether some SIP Guidance, the EPA emphasized that it 70892–93 (November 19, 2010) (proposed SIP call, provisions need to be clarified in order would not approve such provisions if inter alia, to rectify an enforcement discretion to assure that this principle is adhered provision that in fact appeared to bar enforcement they would operate to impose the state’s by the EPA or citizens if the state decided not to to in practice in enforcement actions. enforcement discretion decisions upon enforce). For example, if on the face of an the EPA or other parties because this 281 See id. approved SIP provision the state

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appears to have the unilateral authority identified in the Petition highlighted an CAA.288 Accordingly, regardless of to decide that a specific event is not a area of potential ambiguity or conflict whether affirmative defense provisions ‘‘violation’’ or if it otherwise appears between the SSM Policy applicable to in SIPs were defined more narrowly that if the state elects not to pursue SIP provisions and the EPA’s than were the provisions applicable to enforcement for such violation then no regulations applicable to CAA title V operating permits under 40 CFR part 70 other party may do so, then that SIP operating permit provisions. The EPA and 40 CFR part 71, they cannot be provision fails to meet fundamental has promulgated regulations in 40 CFR included in SIPs. For these reasons, the legal requirements for enforcement part 70 applicable to state operating EPA has evaluated the specific SIP under the CAA. If the SIP provision permit programs and in 40 CFR part 71 provisions identified in the Petition and appears to provide that the decision of applicable to federal operating permit is taking final action to find substantial the state not to enforce for an programs.283 Under each set of inadequacy and to issue a SIP call for exceedance of the SIP emission limit regulations, the EPA has provided that those SIP provisions that include bars the EPA or others from bringing an permits may contain, at the permitting features that are inappropriate for SIPs, enforcement action, then that is an authority’s discretion, an ‘‘emergency regardless of whether those provisions impermissible imposition of the state’s provision.’’ 284 contain terms found in other enforcement discretion decisions on The regulatory parameters applicable regulations. other parties. The EPA has previously to such emergency provisions in Additionally, we are not taking action issued a SIP call to resolve just such an operating permits are the same for state in this rulemaking to alter the ambiguity, and its authority to do so has operating permit program regulations emergency provisions found in 40 CFR been upheld.282 Given that the and the federal operating permit part 70 and 40 CFR part 71. Those commenter agrees with the underlying program regulations. The definition of regulations, which are applicable to title principle that a state’s exercise of emergency is identical in the regulations V operating permits, may only be enforcement discretion should have no for each program.285 changed through appropriate bearing on the exercise of enforcement Thus, if there is an emergency event rulemaking to revise parts 70 and 71. authority of the EPA or citizens, the meeting the regulatory definition, then Further, any existing permits that Agency presumes that the commenter the EPA’s regulations for operating contain such emergency provisions may would not in fact oppose a SIP revision permit programs provide for an only be changed through established to clarify that point. Moreover, the ‘‘affirmative defense’’ to enforcement for permitting procedures. The EPA is commenter would not be harmed by noncompliance with technology-based considering whether to make changes to such a SIP revision and would have no standards during the emergency event, 40 CFR part 70 and 40 CFR part 71, and basis upon which to challenge it. As the provided the source can demonstrate if so, how best to make those changes. clarification of the ambiguous SIP through specified forms of evidence that In any such action, EPA would also the event and the permittee’s actions provision should be in the interest of all intend to address the timing of any during and after the event met a number involved, including the regulated changes to existing title V operating of specific requirements.286 entities, the regulators and the public, permits. Until that time, as part of The Petitioner did not directly request the EPA does not believe that resources normal permitting process, the EPA that the EPA evaluate the existing used to eliminate such ambiguities encourages permitting authorities to regulatory provisions applicable to would be wasted. consider the discretionary nature of the operating permits in 40 CFR part 70 and emergency provisions when E. Affirmative Defense Provisions in 40 CFR part 71, and the EPA is not determining whether to continue to SIPs During Any Period of Operation revising those provisions in this action. include permit terms modeled on those As explained in detail in the SNPR, In its February 2013 proposal, the EPA provisions in operating permits that the the EPA believes that the CAA prohibits explained that while it was proposing to permitting authorities are issuing in the affirmative defense provisions in SIPs. allow narrowly drawn affirmative first instance or renewing. defense provisions for malfunctions in The EPA acknowledges that since the G. Intended Effect of the EPA’s Action 1999 SSM Guidance, the Agency had SIPs, SIP provisions that were modeled after the regulations in 40 CFR part 70 on the Petition interpreted the CAA to allow narrowly As in the 2001 SSM Guidance, the tailored affirmative defense provisions. and 40 CFR part 71 were still in conflict with the EPA’s interpretation of the EPA is endeavoring to be particularly However, the EPA’s interpretation of the clear about the intended effect of its statute was based on arguments that CAA for SIP provisions and thus could 287 final action on the Petition, of its have since been rejected by the DC not be allowed. However, as explained in the SNPR, the reasoning in clarifications and revisions to the SSM Circuit in the NRDC v. EPA decision. Policy and of its application of the The EPA received a substantial number the subsequent NRDC v. EPA court decision is that even narrowly defined updated SSM Policy to the specific of comments, both supportive and existing SIP provisions discussed in adverse, concerning the issue of affirmative defense provisions in SIPs are no longer consistent with the section IX of this document. affirmative defense provisions in SIPs. First, the EPA only intends its actions These comments and the EPA’s 283 See 40 CFR 70.1–70.12; 40 CFR 71.1–71.27. on the larger policy or legal issues responses to them are discussed in 284 See 40 CFR 70.6(g); 40 CFR 71.6(g). The EPA raised by the Petitioner to inform the section IV.D of this document. also notes that states are not required to adopt the public of the EPA’s current views on the ‘‘emergency provision’’ contained in 40 CFR 70.6(g) requirements of the CAA with respect to F. Relationship Between SIP Provisions into their state operating permit programs, and and Title V Regulations many states have chosen not to do so. See, e.g., SIP provisions related to SSM events. ‘‘Clean Air Act Full Approval of Partial Operating Thus, for example, the EPA’s proposed As the EPA explained in the February Permit Program; Allegheny County; Pennsylvania; grant of the Petitioner’s request that the 2013 proposal, the SIP provisions Direct final rule,’’ 66 FR 55112 at 55113 (November EPA interpret the CAA to disallow all 1, 2001). affirmative defense provisions is 282 See ‘‘Finding of Substantial Inadequacy of 285 See 40 CFR 70.6(g)(1); 40 CFR 71.6(g)(1). Implementation Plan; Call for Utah State 286 40 CFR 70.6(g)(3); 40 CFR 71.6(g)(3). intended to convey that the EPA has Implementation Plan Revision; Proposed rule,’’ 76 287 See February 2013 proposal, 78 FR 12459 at FR 21639 (April 18, 2011). 12481–82. 288 See SNPR, 79 FR 55919 at 55929–30.

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changed its views about such provisions For purposes of alleged violations of SIP Significantly, CAA section 110(k)(5) and that its prior views expressed in the provisions, however, the terms of the explicitly authorizes the EPA to issue a 1999 SSM Guidance and related applicable SIP provision will continue SIP call ‘‘whenever’’ the EPA makes a rulemakings on SIP submissions were to govern until that provision is revised finding that the existing SIP is incorrect. In this fashion, the EPA’s following the appropriate process for substantially inadequate, thus providing action on the Petition provides updated SIP revisions, as required by the CAA. authority for the EPA to take action to guidance relevant to future SIP actions. Finally, the EPA does intend this final correct existing inadequate SIP Second, the EPA only intends its action, developed through notice and provisions even long after their initial actions on the specific existing SIP comment, to be the statement of its most approval, or even if the provisions only provisions identified in the Petition to current SSM Policy, reflecting the EPA’s become inadequate due to subsequent be applicable to those provisions. The interpretation of CAA requirements events.290 The statutory provision is EPA does not intend its action on those applicable to SIP provisions related to worded in the present tense, giving the specific provisions to alter the current excess emissions during SSM events. In EPA authority to rectify any deficiency status of any other existing SIP this regard, the EPA is adding to and in a SIP that currently exists, regardless provisions relating to SSM events. The clarifying its prior statements in the of the fact that the EPA previously EPA must take later rulemaking actions, 1999 SSM Guidance and making the approved that particular provision in if necessary, in order to evaluate any specific changes to that guidance as the SIP and regardless of when that comparable deficiencies in other discussed in this action. Thus, this final approval occurred. existing SIP provisions that may be notice for this action will constitute the It is also important to emphasize that inconsistent with the requirements of EPA’s SSM Policy on a going-forward CAA section 110(k)(5) expressly directs the CAA. Again, however, the EPA’s basis. the EPA to take action if the SIP actions on the Petition provide updated provision is substantially inadequate, VIII. Legal Authority, Process and guidance on the types of SIP provisions not just for purposes of attainment or Timing for SIP Calls that it believes would be consistent with maintenance of the NAAQS but also for CAA requirements in future rulemaking A. SIP Call Authority Under Section purposes of ‘‘any requirement’’ of the actions. 110(k)(5) CAA. The EPA interprets this reference Third, the EPA does not intend its to ‘‘any requirement’’ of the CAA on its 1. General Statutory Authority action on the Petition to affect face to authorize reevaluation of an immediately any existing permit terms The CAA provides a mechanism for existing SIP provision for compliance or conditions regarding excess the correction of flawed SIPs, under with those statutory and regulatory emissions during SSM events that CAA section 110(k)(5), which provides requirements that are germane to the SIP reflect previously approved SIP that ‘‘[w]henever the Administrator provision at issue. Thus, for example, a provisions. The EPA’s finding of finds that the applicable SIP provision that is intended to be an substantial inadequacy and a SIP call for implementation plan for any area is ‘‘emission limitation’’ for purposes of a a given state provides the state time to substantially inadequate to attain or nonattainment plan for purposes of the revise its SIP in response to the SIP call maintain the relevant national ambient 1997 PM2.5 NAAQS must meet various through the necessary state and federal air quality standards, to mitigate applicable statutory and regulatory administrative process. Thereafter, any adequately the interstate pollutant requirements, including requirements of needed revisions to existing permits transport described in section [176A] of CAA section 110(a)(2)(A) such as will be accomplished in the ordinary this title or section [184] of this title, or enforceability, the definition of the term course as the state issues new permits to otherwise comply with any ‘‘emission limitation’’ in CAA section or reviews and revises existing permits. requirement of [the Act], the 302(k), the level of emissions control The EPA does not intend the issuance Administrator shall require the State to of a SIP call to have automatic impacts revise the plan as necessary to correct eliminate the affected emission limitations from the on the terms of any existing permit. such inadequacies. The Administrator SIP potentially leaving no emission limitation in Fourth, the EPA does not intend its shall notify the State of the inadequacies place, whereas the mechanism of the CAA section 110(k)(5) SIP call will keep the provisions in place action on the Petition to alter the and may establish reasonable deadlines during the pendency of the state’s revision of the emergency defense provisions at 40 CFR (not to exceed 18 months after the date SIP and the EPA’s action on that revision. In the 70.6(g) and 40 CFR 71.6(g), i.e., the title of such notice) for the submission of case of provisions that include impermissible V regulations pertaining to ‘‘emergency such plan revisions.’’ automatic exemptions or discretionary exemptions, the EPA believes that retention of the existing SIP provisions’’ permissible in title V By its explicit terms, this provision provision is preferable to the absence of the operating permits. The EPA’s authorizes the EPA to find that a state’s provision in the interim. regulations applicable to title V existing SIP is ‘‘substantially 290 See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. operating permits may only be changed inadequate’’ to meet CAA requirements Cir. 2000) (upholding the ‘‘NOX SIP Call’’ to states requiring revisions to previously approved SIPs through appropriate rulemaking and, based on that finding, to ‘‘require with respect to ozone transport and section procedures and existing permit terms the State to revise the [SIP] as necessary 110(a)(2)(D)(i)(I)); ‘‘Action to Ensure Authority To may only be changed through to correct such inadequacies.’’ This type Issue Permits Under the Prevention of Significant established permitting processes. of action is commonly referred to as a Deterioration Program to Sources of Greenhouse 289 Gas Emissions: Finding of Substantial Inadequacy Fifth, the EPA does not intend its ‘‘SIP call.’’ and SIP Call; Final rule,’’ 75 FR 77698 (December interpretations of the requirements of 13, 2010) (the EPA issued a SIP call to 13 states the CAA in this action on the Petition 289 The EPA also has other discretionary authority because the endangerment finding for GHGs meant to be legally dispositive with respect to to address incorrect SIP provisions, such as the that these previously approved SIPs were authority in CAA section 110(k)(6) for the EPA to substantially inadequate because they did not any particular current enforcement correct errors in prior SIP approvals. The authority provide for the regulation of GHGs in the PSD proceedings in which a violation of SIP in CAA section 110(k)(5) and CAA section 110(k)(6) permitting programs of these states as required by emission limitations is alleged to have can sometimes overlap and offer alternative CAA section 110(a)(2)(C) and section 110(a)(2)(J)); occurred. The EPA handles enforcement mechanisms to address problematic SIP provisions. ‘‘Finding of Substantial Inadequacy of In this instance, the EPA believes that the Implementation Plan; Call for Utah State matters by assessing each situation, on mechanism provided by CAA section 110(k)(5) is Implementation Plan Revision,’’ 74 FR 21639 (April a case-by-case basis, to determine the the better approach, because using the mechanism 18, 2011) (the EPA issued a SIP call to rectify SIP appropriate response and resolution. of the CAA section 110(k)(6) error correction would provisions dating back to 1980).

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required to constitute a ‘‘reasonably 2, the EPA is authorized to interpret this with fundamental requirements of the available control measure’’ in CAA provision reasonably, consistent with CAA.294 Such a provision also does not section 172(c)(1) and the other the provisions of the CAA. In addition, become legally permissible merely applicable statutory requirements for the EPA is authorized to exercise its because there is not definitive evidence the implementation of the 1997 PM2.5 discretion in applying this provision to that the state’s action literally NAAQS. Failure to meet any of those determine whether a given SIP undermined a specific attempted applicable requirements could provision is substantially inadequate. enforcement action by other parties. constitute a substantial inadequacy To the extent that the term Indeed, the EPA notes that these suitable for a SIP call, depending upon ‘‘substantially inadequate’’ is impediments to effective enforcement the facts and circumstances. By contrast, ambiguous, the EPA believes that it is likely have a chilling effect on potential that same SIP provision should not be reasonable to interpret the term in light enforcement in general. The possibility expected to meet specifications of the of the specific purposes for which the for effective enforcement of emission CAA that are completely irrelevant for SIP provision at issue is required, and limitations in SIPs is itself an important its intended purpose, such as the thus whether the provision meets the principle of the CAA, as embodied in unrelated requirement of CAA section fundamental CAA requirements CAA sections 113 and 304. 110(a)(2)(G) that the state have general applicable to such a provision. The EPA’s interpretation of CAA legal authority comparable to CAA The EPA does not interpret CAA section 110(k)(5) is that the fundamental section 303 for emergencies. section 110(k)(5) to require a showing integrity of the CAA’s SIP process and Use of the term ‘‘any requirement’’ in that the effect of a SIP provision that is structure are undermined if emission CAA section 110(k)(5) also reflects the facially inconsistent with CAA limitations relied upon to meet CAA fact that SIP provisions could be requirements is causally connected to a requirements related to protection of substantially inadequate for widely particular adverse impact. For example, public health and the environment can differing reasons. One provision might the plain language of CAA section be violated without potential recourse. be substantially inadequate because it 110(k)(5) does not require direct causal For example, the EPA does not believe fails to prohibit emissions that evidence that excess emissions have that it is authorized to issue a SIP call contribute to violations of the NAAQS occurred during a specific malfunction to rectify an impermissible automatic in downwind areas many states away. at a specific source and have literally exemption provision only after a Another provision, or even the same caused a violation of the NAAQS in violation of the NAAQS has occurred, or provision, could be substantially order to conclude that the SIP provision only if that NAAQS violation can be inadequate because it also infringes on is substantially inadequate.292 A SIP directly linked to the excess emissions the legal right of members of the public provision that purports to exempt a that resulted from the impermissible who live adjacent to the source to source from compliance with applicable automatic exemption by a particular enforce the SIP. Thus, the EPA has emission limitations during SSM events, source on a particular day. If the SIP previously interpreted CAA section contrary to the requirements of the CAA contains a provision that is inconsistent 110(k)(5) to authorize a SIP call to for continuous emission limitations, with fundamental requirements of the rectify SIP inadequacies of various does not become legally permissible CAA, that renders the SIP provision kinds, both broad and narrow in terms merely because there is not definitive substantially inadequate. of the scope of the SIP revisions evidence that any excess emissions have The EPA notes that CAA section required.291 On its face, CAA section resulted from the exemption and have 110(k)(5) can also be an appropriate tool 110(k)(5) authorizes the EPA to take literally caused a specific NAAQS to address ambiguous SIP provisions action with respect to SIP provisions violation.293 that could be read by a court in a way that are substantially inadequate to meet Similarly, the EPA does not interpret that would violate the requirements of any CAA requirements, including CAA section 110(k)(5) to require direct the CAA. For example, if an existing SIP requirements relevant to the proper causal evidence that a SIP provision that provision concerning the state’s exercise treatment of excess emissions during improperly undermines enforceability of enforcement discretion is sufficiently SSM events. of the SIP has resulted in a specific ambiguous that it could be construed to An important baseline question is failed enforcement attempt by any party. preclude enforcement by the EPA or whether a given deficiency renders the A SIP provision that has the practical through a citizen suit if the state elects SIP provision ‘‘substantially effect of barring enforcement by the EPA to deem a given SSM event not a inadequate.’’ The EPA notes that the or through a citizen suit, either because violation, then that could render the term ‘‘substantially inadequate’’ is not it would bar enforcement if an air provision substantially inadequate by defined in the CAA. Moreover, CAA agency elects to grant a discretionary interfering with the enforcement section 110(k)(5) does not specify a exemption or to exercise its own structure of the CAA.295 If a court could particular form of analysis or enforcement discretion, is inconsistent methodology that the EPA must use to 294 See ‘‘Finding of Substantial Inadequacy of evaluate SIP provisions for substantial 292 See US Magnesium, LLC v. EPA, 690 F.3d Implementation Plan; Call for Utah State 1157 (10th Cir. 2012) (upholding the EPA’s Implementation Plan Revision,’’ 74 FR 21639 at inadequacy. Thus, under Chevron step interpretation of section 110(k)(5) to authorize a SIP 21641 (April 18, 2011); see also US Magnesium, call when the SIP provisions are inconsistent with LLC v. EPA, 690 F.3d 1157, 1168 (10th Cir. 2012) 291 See, e.g., ‘‘Finding of Significant Contribution CAA requirements). (upholding the EPA’s interpretation of section and Rulemaking for Certain States in the Ozone 293 The EPA notes that the GHG SIP call did not 110(k)(5) to authorize a SIP call when the state’s SIP Transport Assessment Group Region for Purposes of require ‘‘proof’’ that the failure of a state to address provision worded so that state decisions whether a Reducing Regional Transport of Ozone,’’ 63 FR GHGs in a given PSD permit ‘‘caused’’ given excess emissions event constituted a violation 57356 (October 27, 1998) (the EPA issued a SIP call particularized environmental impacts; it was interfered with enforcement by the EPA or citizens to 23 states requiring them to rectify the failure to sufficient that the state’s SIP failed to meet the for such event). address interstate transport of pollutants as required current fundamental legal requirements for 295 Courts have on occasion interpreted SIP by section 110(a)(2)(D); ‘‘Finding of Substantial regulation of GHGs in accordance with the CAA. provisions to limit the EPA’s enforcement authority Inadequacy of Implementation Plan; Call for Utah See ‘‘Action to Ensure Authority To Issue Permits as a result of ambiguous SIP provisions. See, e.g., State Implementation Plan Revision,’’ 74 FR 21639 Under the Prevention of Significant Deterioration U.S. v. Ford Motor Co., 736 F.Supp. 1539 (W.D. Mo. (April 18, 2011) (the EPA issued a SIP call to one Program to Sources of Greenhouse Gas Emissions: 1990) and U.S. v. General Motors Corp., 702 state requiring it to rectify several very specific SIP Finding of Substantial Inadequacy and SIP Call; F.Supp. 133 (N.D. Texas 1988) (the EPA could not provisions). Final rule,’’ 75 FR 77698 (December 13, 2010). pursue enforcement of SIP emission limitations

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construe the ambiguous SIP provision to SIP provisions has been reiterated opportunity to obtain injunctive relief bar enforcement, then the EPA believes multiple times through the SSM Policy that may be needed to protect the that it may be appropriate to take action and actions on SIP submissions that NAAQS or meet other CAA to eliminate that uncertainty by pertain to this issue. The EPA’s requirements. Likewise, the elimination requiring the state to revise the longstanding view is that SIP provisions of any possibility for penalties for what ambiguous SIP provision. Under such that include automatic exemptions for would otherwise be clear violations of circumstances, it may be appropriate for excess emissions during SSM events, the emission limitations, regardless of the EPA to issue a SIP call to assure that such that the excess emissions during the conduct of the source, eliminates the SIP provisions are sufficiently clear those events are not considered any opportunity for penalties to and consistent with CAA requirements violations of the applicable emission encourage appropriate design, operation on their face.296 limitations, do not meet CAA and maintenance of sources and to In this instance, the Petition raised requirements. Such exemptions encourage efforts by source operators to questions concerning the adequacy of undermine the attainment and prevent and to minimize excess existing SIP provisions that pertain to maintenance of the NAAQS, protection emissions in order to protect the the treatment of excess emissions during of PSD increments and improvement of NAAQS or to meet other CAA SSM events. The SIP provisions visibility, and SIP provisions that requirements. Removal of this monetary identified by the Petitioner generally fall include such exemptions fail to meet incentive to comply with the SIP into four major categories: (i) Automatic these and other fundamental reduces a source’s incentive to design, exemptions; (ii) exemptions as a result requirements of the CAA. operate, and maintain its facility to meet of director’s discretion; (iii) provisions The EPA interprets CAA sections emission limitations at all times. that appear to bar enforcement by the 110(a)(2)(A) and 110(a)(2)(C) to require EPA or through a citizen suit if the state that SIPs contain ‘‘emission limitations’’ 3. Substantial Inadequacy of Director’s decides not to enforce through exercise to meet CAA requirements. Pursuant to Discretion Exemptions of enforcement discretion; and (iv) CAA section 302(k), those emission The EPA believes that SIP provisions affirmative defense provisions that limitations must be ‘‘continuous.’’ that allow discretionary exemptions purport to limit or eliminate a court’s Automatic exemptions from otherwise from otherwise applicable emission jurisdiction to assess liability and applicable emission limitations thus limitations are substantially inadequate impose remedies for exceedances of SIP render those limits less than continuous to meet CAA requirements for the same emission limitations. The EPA believes as required by CAA sections 302(k), reasons as automatic exemptions, but that each of these types of SIP 110(a)(2)(A) and 110(a)(2)(C), thereby for additional reasons as well. A typical deficiency potentially justifies a SIP call inconsistent with a fundamental SIP provision that includes an pursuant to CAA section 110(k)(5), if the requirement of the CAA and thus impermissible ‘‘director’s discretion’’ Agency determines that a SIP call is the substantially inadequate as component would purport to authorize proper means to rectify an existing contemplated in CAA section 110(k)(5). air agency personnel to modify existing deficiency in a SIP. This inadequacy has far-reaching SIP requirements under certain impacts. For example, air agencies rely conditions, e.g., to grant a variance from 2. Substantial Inadequacy of Automatic on emission limitations in SIPs in order an otherwise applicable emission Exemptions to provide for attainment and limitation if the source could not meet The EPA believes that SIP provisions maintenance of the NAAQS. These the requirement in certain that provide an automatic exemption emission limitations are often used by circumstances.297 If such provisions are from otherwise applicable emission air agencies to meet various sufficiently specific, provide for limitations are substantially inadequate requirements including: (i) In the sufficient public process and are to meet CAA requirements. A typical estimates of emissions for emissions sufficiently bounded, so that it is SIP provision that includes an inventories; (ii) in the determination of possible to anticipate at the time of the impermissible automatic exemption what level of emissions meets various EPA’s approval of the SIP provision would provide that a source has to meet statutory requirements such as how that provision will actually be a specific emission limitation, except ‘‘reasonably available control measures’’ applied and the potential adverse during startup, shutdown and in nonattainment SIPs or ‘‘best available impacts thereof, then such a provision malfunction, and by definition any retrofit technology’’ in regional haze might meet basic CAA requirements. In excess emissions during such events SIPs; and (iii) in critical modeling essence, if it is possible to anticipate would not be violations and thus there exercises such as attainment and evaluate in advance how the could be no enforcement based on those demonstration modeling for exercise of enforcement discretion could excess emissions. The EPA’s nonattainment areas or increment use impact compliance with other CAA interpretation of CAA requirements for for PSD permitting purposes. requirements, then it may be possible to Because the NAAQS are not directly determine in advance that the where states had approved alternative emission enforceable against individual sources, preauthorized exercise of director’s limitations under procedures the EPA had approved air agencies rely on the adoption and discretion will not interfere with other in the SIP); Florida Power & Light Co. v. Costle, 650 enforcement of these generic and CAA requirements, such as providing F.2d 579, 588 (5th Cir. 1981) (the EPA to be accorded no discretion in interpreting state law). specific emission limitations in SIPs in for attainment and maintenance of the The EPA does not agree with the holdings of these order to provide for attainment and cases, but they illustrate why it is reasonable to maintenance of the NAAQS, protection 297 The EPA notes that problematic ‘‘director’s eliminate any uncertainty about enforcement of PSD increments and improvement of discretion’’ provisions are not limited only to those authority by requiring a state to remove or revise that purport to authorize alternative emission a SIP provision that could be read in a way visibility, and to meet other CAA limitations from those required in a SIP. Other inconsistent with the requirements of the CAA. requirements. Automatic exemption problematic director’s discretion provisions could 296 See US Magnesium, LLC v. EPA, 690 F.3d provisions for excess emissions include those that purport to provide for 1157, 1170 (10th Cir. 2012) (upholding the EPA’s eliminate the possibility of enforcement discretionary changes to other substantive use of SIP call authority in order to clarify language requirements of the SIP, such as applicability, in the SIP that could be read to violate the CAA, for what would otherwise be clear operating requirements, recordkeeping even if a court has not yet interpreted the language violations of the relied-upon emission requirements, monitoring requirements, test in that way). limitations and thus eliminate any methods, and alternative compliance methods.

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NAAQS. Most director’s discretion-type Congress presumably imposed these requirements the provisions must be provisions cannot meet this basic test. many explicit requirements in order to structured so that any resulting Unless it is possible at the time of the assure that there is adequate public variances or other deviations from the approval of the SIP provision to process at both the air agency and emission limitation or other SIP anticipate and analyze the impacts of federal level for any SIP revision and to requirements have no federal law the potential exercise of the director’s assure that any SIP revision meets the validity, unless and until the EPA discretion, such provisions functionally applicable substantive requirements of specifically approves that exercise of the could allow de facto revisions of the the CAA. Although no provision of the director’s discretion as a SIP revision. approved emission limitations required CAA explicitly addresses whether a Barring such a later ratification by the by the SIP without complying with the ‘‘director’s discretion’’ provision by that EPA through a SIP revision, the exercise process for SIP revisions required by the term is acceptable, the EPA interprets of director’s discretion is only valid for CAA. Sections 110(a)(1) and (2) of the the statute to prohibit such provisions state (or tribal) law purposes and would CAA impose procedural requirements unless they would be consistent with have no bearing in the event of an action on states that seek to amend SIP the statutory and regulatory to enforce the provision of the SIP as it provisions. The elements of CAA requirements that apply to SIP was originally approved by the EPA. 299 The EPA’s evaluation of the specific section 110(a)(2) and other sections of revisions. A SIP provision that SIP provisions of this type identified in the CAA, depending upon the subject of purports to give broad and unbounded the Petition indicates that none of them the SIP provision at issue, impose director’s discretion to alter the existing legal requirements of the SIP with provides sufficient process or sufficient substantive requirements that states bounds on the exercise of director’s must meet in a SIP revision. Section respect to meeting emission limitations would be tantamount to allowing a discretion to be permissible. Most on 110(i) of the CAA prohibits modification their face would allow potentially of SIP requirements for stationary revision of the SIP without meeting the applicable procedural and substantive limitless exemptions from SIP sources by either the state or the EPA, requirements with potentially dramatic 298 requirements for such a SIP revision. except through specified processes. adverse impacts inconsistent with the Section 110(k) of the CAA imposes The EPA’s approval of a SIP provision that purported to allow unilateral objectives of the CAA. More procedural and substantive importantly, however, each of the requirements on the EPA for action revisions of the emission limitations in the SIP by the state, without complying identified SIP provisions goes far upon any SIP revision. Sections 110(l) beyond the limits of what might and 193 of the CAA both impose with the statutory requirements for a SIP revision, would itself be contrary to theoretically be a permissible director’s additional procedural and substantive discretion provision, by authorizing requirements on the state and the EPA fundamental procedural and substantive requirements of the CAA. state personnel to create case-by-case in the event of a SIP revision. Chief exemptions from the applicable among these many requirements for a For this reason, the EPA has long discouraged the creation of new SIP emission limitations or other SIP revision would be the necessary requirements of the SIP for excess demonstration that the SIP revision in provisions containing an impermissible director’s discretion feature and has also emissions during SSM events. Given question would not interfere with any that the EPA interprets the CAA not to requirement concerning attainment and taken actions to remove existing SIP provisions that it had previously allow exemptions from SIP emission reasonable further progress or ‘‘any limitations for excess emissions during approved in error.300 In recent years, the other applicable requirement of’’ the SSM events in the first instance, it EPA has also recommended that if an air CAA to meet the requirements of CAA follows that providing such exemptions agency elects to have SIP provisions that section 110(l). through the ad hoc mechanism of a contain a director’s discretion feature, director’s discretion provision is also then to be consistent with CAA 298 Section 110(i) of the Act states that ‘‘no order, not permissible and compounds the suspension, plan revision or other action modifying problem. any requirement of an applicable implementation 299 See, e.g., EPA’s implementing regulations at plan may be taken with respect to any stationary 40 CFR 51.104(d) (‘‘In order for a variance to be As with automatic exemptions for source by the State or by the Administrator’’ except considered for approval as a revision to the [SIP], excess emissions during SSM events, a in compliance with the CAA’s requirements for the State must submit it in accordance with the provision that allows discretionary promulgation or revision of a plan, with limited requirements of this section’’) and 51.105 exemptions would not meet the exceptions. See, e.g., ‘‘Approval and Disapproval (‘‘Revisions of a plan, or any portion thereof, will statutory requirements of CAA sections and Promulgation of Air Quality Implementation not be considered part of an applicable plan until Plans; Colorado; Revisions to Regulation 1; Notice such revisions have been approved by the 110(a)(2)(A) and 110(a)(2)(C) that of proposed rulemaking,’’ 75 FR 42342 at 42344 Administrator in accordance with this part.’’). require SIPs to contain ‘‘emission (July 21, 2010) (proposing to disapprove ‘‘director 300 See, e.g., ‘‘Approval and Disapproval and limitations’’ to meet CAA requirements. discretion’’ provisions as inconsistent with CAA Promulgation of Air Quality Implementation Plans; Pursuant to CAA section 302(k), those requirements and noting that ‘‘[s]ection 110(i) Colorado; Revisions to Regulation 1,’’ 76 FR 4540 specifically prohibits States, except in certain (January 26, 2011) (partial disapproval of SIP emission limitations must be limited circumstances, from taking any action to submission based on inclusion of impermissible ‘‘continuous.’’ Discretionary exemptions modify any requirement of a SIP with respect to any director’s discretion provisions); ‘‘Correction of from otherwise applicable emission stationary source, except through a SIP revision’’), Implementation Plans; American Samoa, Arizona, limitations render those limits less than finalized as proposed at 76 FR 4540 (January 26, California, Hawaii, and Nevada State 2011); ‘‘Corrections to the California State Implementation Plans; Notice of proposed continuous, as is required by CAA Implementation Plan,’’ 69 FR 67062 at 67063 rulemaking,’’ 61 FR 38664 (July 25, 1996) (proposed sections 110(a)(2)(A) and 110(a)(2)(C), (November 16, 2004) (noting that ‘‘a state-issued SIP correction to remove, pursuant to CAA section and thereby inconsistent with a variance, though binding as a matter of State law, 110(k)(6), several variance provisions from fundamental requirement of the CAA does not prevent EPA from enforcing the American Samoa, Arizona, California, Hawaii, and underlying SIP provisions unless and until EPA Nevada SIPs), finalized at 62 FR 34641 (June 27, and thus substantially inadequate as approves that variance as a SIP revision’’); 1997); ‘‘Approval and Promulgation of contemplated in section CAA 110(k)(5). Industrial Environmental Association v. Browner, Implementation Plans; Corrections to the Arizona Such exemptions undermine the No. 97–71117 at n.2 (9th Cir. May 26, 2000) (noting and Nevada State Implementation Plans; Direct objectives of the CAA such as protection that the EPA has consistently treated individual final rule,’’ 74 FR 57051 (November 3, 2009) variances granted under state variance provisions as (rulemaking to remove, pursuant to CAA section of the NAAQS and PSD increments, and ‘‘modifications of the SIP requiring independent 110(k)(6), variance provisions from Arizona and they fail to meet other fundamental EPA approval’’). Nevada SIPs). requirements of the CAA.

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In addition, discretionary exemptions discretion decisions are imposed on the emission limitations. Some provisions undermine effective enforcement of the EPA or citizens.301 use the explicit term ‘‘affirmative SIP by the EPA or through a citizen suit, The EPA’s longstanding view is that defense,’’ whereas others are structured because often there may have been little SIP provisions cannot enable an air as such provisions but do not use this or no public process concerning the agency’s decision concerning whether specific terminology. All of these exercise of director’s discretion to grant or not to pursue enforcement to bar the provisions, however, share the same the exemptions, or easily accessible ability of the EPA or the public to legal deficiency in that they purport to 302 documentation of those exemptions, enforce applicable requirements. alter the statutory jurisdiction of federal and thus even ascertaining the possible Such enforcement discretion provisions courts under section 113 and section existence of such ad hoc exemptions in a SIP would be inconsistent with the 304 to determine liability and to impose enforcement structure provided in the will further burden parties who seek to remedies for violations of CAA CAA. Specifically, the statute provides evaluate whether a given source is in requirements, including SIP emission explicit independent enforcement limitations. Accordingly, an affirmative compliance or to pursue enforcement if authority to the EPA under CAA section defense provision that operates to limit it appears that the source is not. Where 113 and to citizens under CAA section or to eliminate the jurisdiction of the there is little or no public process 304. Thus, the CAA contemplates that federal courts would undermine the concerning such ad hoc exemptions, or the EPA and citizens have authority to enforcement structure of the CAA and there is inadequate access to relevant pursue enforcement for a violation even would thus be substantially inadequate documentation of those exemptions, if the air agency elects not to do so. The to meet fundamental requirements in enforcement by the EPA or through a EPA and citizens, and any court in CAA sections 113 and 304. By citizen suit may be severely which they seek to pursue an undermining enforcement, such compromised. As explained in the 1999 enforcement claim for violation of SIP provisions also are inconsistent with SSM Guidance, the EPA does not requirements, must retain the authority fundamental CAA requirements such as interpret the CAA to allow SIP to evaluate independently whether a attainment and maintenance of the provisions that would allow the exercise source’s violation of an emission NAAQS, protection of PSD increments of director’s discretion concerning limitation warrants enforcement action. and improvement of visibility. violations to bar enforcement by the Potential for enforcement by the EPA or through a citizen suit provides an B. SIP Call Process Under Section EPA or through a citizen suit. The 110(k)(5) exercise of director’s discretion to important safeguard in the event that exempt conduct that would otherwise the air agency lacks resources or ability Section 110(k)(5) of the CAA provides constitute a violation of the SIP would to enforce violations and provides the EPA with authority to determine interfere with effective enforcement of additional deterrence. Accordingly, a whether a SIP is substantially the SIP. Such provisions are SIP provision that operates at the air inadequate to attain or maintain the inconsistent with and undermine the agency’s election to eliminate the NAAQS or otherwise comply with any requirement of the CAA. Where the EPA enforcement structure of the CAA authority of the EPA or the public to makes such a determination, the EPA provided in CAA sections 113 and 304, pursue enforcement actions would undermine the enforcement structure of then has a duty to issue a SIP call. which provide independent authority to the CAA and would thus be In addition to providing general the EPA and citizens to enforce SIP substantially inadequate to meet authority for a SIP call, CAA section provisions, including emission fundamental requirements in CAA 110(k)(5) sets forth the process and limitations. Thus, SIP provisions that sections 113 and 304. timing for such an action. First, the allow discretionary exemptions from statute requires the EPA to notify the applicable SIP emission limitations 5. Substantial Inadequacy of Affirmative state of the final finding of substantial through the exercise of director’s Defense Provisions inadequacy. The EPA typically provides discretion are substantially inadequate The EPA believes that SIP provisions notice to states by a letter from the to comply with CAA requirements as that provide an affirmative defense for Assistant Administrator for the Office of contemplated in CAA section 110(k)(5). excess emissions during SSM events are Air and Radiation to the appropriate substantially inadequate to meet CAA state officials in addition to publication 4. Substantial Inadequacy of Improper requirements. A typical SIP provision of the final action in the Federal Enforcement Discretion Provisions that includes an impermissible Register. The EPA believes that SIP provisions affirmative defense operates to limit or Second, the statute requires the EPA that pertain to enforcement discretion eliminate the jurisdiction of federal to establish ‘‘reasonable deadlines (not but could be construed to bar courts to assess liability or to impose to exceed 18 months after the date of enforcement by the EPA or through a remedies in an enforcement proceeding such notice)’’ for states to submit citizen suit if the air agency declines to for exceedances of SIP emission corrective SIP submissions to eliminate the inadequacy in response to the SIP enforce are substantially inadequate to limitations. Some affirmative defense call. The EPA proposes and takes meet CAA requirements. A typical SIP provisions apply broadly, whereas comment on the schedule for the provision that includes an others are components of specific submission of corrective SIP revisions impermissible enforcement discretion 301 See, e.g., ‘‘Finding of Substantial Inadequacy in order to ascertain the appropriate provision specifies certain parameters of Implementation Plan; Call for Utah State timeframe, depending on the nature of for when air agency personnel should Implementation Plan Revision,’’ 75 FR 70888 at the SIP inadequacy. 70892 (November 19, 2010). The SIP provision at pursue enforcement action, but is Third, the statute requires that any worded in such a way that the air issue provided that information concerning a malfunction ‘‘shall be used by the executive finding of substantial inadequacy and director’s decision defines what secretary in determining whether a violation has notice to the state be made public. By constitutes a ‘‘violation’’ of the emission occurred and/or the need of further enforcement undertaking a notice-and-comment limitation for purposes of the SIP, i.e., action.’’ This SIP language appeared to give the state official exclusive authority to determine rulemaking, the EPA assures that the air by defining what constitutes a violation, whether excess emissions constitute a violation. agencies, affected sources and members the air agency’s own enforcement 302 See 1999 SSM Guidance at 3. of the public all are adequately

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informed and afforded the opportunity proposal, as the EPA has done in other deadline that is up to 18 months from to participate in the process. Through SIP calls, the EPA proposed that the 2- the date of the final finding of the February 2013 proposal, the SNPR to-1 emission offset requirement will inadequacy. and this final notice, the EPA is apply for all new sources subject to the The EPA proposed to establish a date providing a full evaluation of the issues nonattainment NSR program beginning 18 months from the date of raised by the Petition and has used this 18 months following such finding or promulgation of the final finding for the process as a means of giving clear and disapproval unless the state corrects the state to respond to the SIP call. After up-to-date guidance concerning SIP deficiency before that date. The EPA further evaluation of this issue and provisions relevant to the treatment of proposed that the highway funding consideration of comments on the excess emissions during SSM events restrictions sanction will also apply proposed SIP call, the EPA has decided that is consistent with CAA beginning 24 months following such to finalize the proposed schedule. Thus, requirements. finding or disapproval unless the state the SIP submission deadline for each of If the state fails to submit the corrects the deficiency before that date. the states subject to this SIP call will be corrective SIP revision by the deadline Finally, the EPA proposed that the November 22, 2016. Thereafter, the EPA established in this final notice, CAA provisions in 40 CFR 52.31 regarding will review the adequacy of that new section 110(c) authorizes the EPA to staying the sanctions clock and SIP submission in accordance with the ‘‘find[ ] that [the] State has failed to deferring the imposition of sanctions CAA requirements of sections 110(a), make a required submission.’’ 303 Once would also apply. In this action, the 110(k), 110(l) and 193, including the the EPA makes such a finding of failure EPA is finalizing the order of sanctions EPA’s interpretation of the CAA to submit, CAA section 110(c)(1) as proposed in the February 2013 reflected in the SSM Policy as clarified requires the EPA to ‘‘promulgate a proposal and finalizing its decision and updated through this rulemaking. Federal implementation plan at any concerning the application of 40 CFR The EPA is providing the maximum time within 2 years after the [finding] 52.31. time permissible under the CAA for a . . . unless the State corrects the Mandatory sanctions under CAA state to respond to a SIP call. The EPA deficiency, and [the EPA] approves the section 179 generally apply only in believes that it is appropriate to provide plan or plan revision, before [the EPA] nonattainment areas. By its definition, states with the full 18 months authorized under CAA section 110(k)(5) promulgates such [FIP].’’ Thus, if the the emission offset sanction applies in order to allow states sufficient time EPA finds that the air agency failed to only in areas required to have a part D to make SIP revisions following their submit a complete SIP revision that NSR program, i.e., areas designated own SIP development process. During responds to this SIP call, or if the EPA nonattainment. Section 179(b)(1) this time, the EPA recognizes, an disapproves such SIP revision, then the expressly limits the highway funding affected state will need to revise its state EPA will have an obligation under CAA restriction to nonattainment areas. regulations, provide for public input, section 110(c)(1) to promulgate a FIP no Additionally, the EPA interprets the process the SIP revision through the later than 2 years from the date of the section 179 sanctions to apply only in state’s own procedures and submit the finding or the disapproval, if the the area or areas of the state that are subject to or required to have in place SIP revision to the EPA. Such a deficiency has not been corrected before schedule will allow for the necessary that time.304 the deficient SIP and for the pollutant or pollutants that the specific SIP SIP development process to correct the The finding of failure to submit a element addresses. For example, if the deficiencies, yet still achieve the revision in response to a SIP call or the deficient provision applies statewide necessary SIP improvements as EPA’s disapproval of that corrective SIP and applies for all NAAQS pollutants, expeditiously as practicable. There may revision can also trigger sanctions under then the mandatory sanctions would be exceptions, particularly in states that CAA section 179. If a state fails to apply in all areas designated have adopted especially time- submit a complete SIP revision that nonattainment for any NAAQS within consuming procedures for adoption and responds to a SIP call, CAA section the state. In this case, the EPA will submission of SIP revisions. The EPA 179(a) provides for the EPA to issue a evaluate the geographic scope of acknowledges that the longstanding finding of state failure. Such a finding potential sanctions at the time it makes existence of many of the provisions at starts mandatory 18-month and 24- a determination that the air agency has issue, such as automatic exemptions for month sanctions clocks. The two failed to make a complete SIP SSM events, may have resulted in sanctions that apply under CAA section submission in response to this SIP call, undue reliance on them as a compliance 179(b) are the 2-to-1 emission offset or at the time it disapproves such a SIP mechanism by some sources. As a requirement for all new and modified submission. The appropriate geographic result, development of appropriate SIP major sources subject to the scope for sanctions may vary depending revisions may entail reexamination of nonattainment NSR program and upon the SIP provisions at issue. the applicable emission limitations restrictions on highway funding. themselves, and this process may However, section 179 leaves it to the C. SIP Call Timing Under Section require the maximum time allowed by EPA to decide the order in which these 110(k)(5) the CAA. For example, if circumstances sanctions apply. The EPA issued an When the EPA finalizes a finding of do not allow the state to develop order of sanctions rule in 1994 but did substantial inadequacy and a SIP call for alternative emission limitations within not specify the order of sanctions where any state, CAA section 110(k)(5) that time, the state may find it necessary a state fails to submit or submits a requires the EPA to establish a SIP to remove the automatic exemptions in deficient SIP revision in response to a submission deadline by which the state an initial responsive SIP revision and 305 SIP call. In the February 2013 must make a SIP submission to rectify establish alternative emission the identified deficiency. Pursuant to limitations in a later SIP revision. 303 CAA section 110(c)(1)(A). CAA section 110(k)(5), the EPA has Nevertheless, the EPA encourages the 304 The 2-year deadline does not necessarily affected states to make the necessary apply to FIPs following disapproval of a tribal authority to set a SIP submission implementation plan. revisions in as timely a fashion as 305 See ‘‘Selection of Sequence of Mandatory 179 of the Clean Air Act,’’ 59 FR 39832 (August 4, possible and encourages the states to Sanctions for Findings Made Pursuant to Section 1994), codified at 40 CFR 52.31. work with the respective EPA Regional

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Office as they develop the SIP revisions. the requirements of the CAA.307 110(k)(5), the process followed by EPA The EPA intends to review and act upon Through this rulemaking action, the for this SIP call action, or the timing the SIP submissions as promptly as EPA is reiterating, clarifying and that the EPA provided for response to resources will allow, in order to correct updating its interpretations of the CAA this SIP call action. Although there were these deficiencies in as timely a manner with respect to SIP provisions that numerous comments on these general as possible. Recent experience with apply to emissions from sources during topics, the majority of the comments several states that elected to correct the SSM events in order to provide states raised the same questions and made deficiencies identified in the February with comprehensive guidance similar arguments (e.g., that the EPA has 2013 proposal in advance of this final concerning such provisions. an obligation under section 110(k)(5) to action suggests that these SIP revisions Finally, the EPA notes that under ‘‘prove’’ not only that an exemption for can be addressed efficiently through section 553 of the Administrative SSM events in a SIP emission limitation cooperation between the air agencies Procedure Act, 5 U.S.C. 553(d), an is contrary to the explicit legal and the EPA. agency rule should not be ‘‘effective’’ requirements of the CAA but also that The EPA notes that the SIP call for less than 30 days after its publication, this illegal exemption ‘‘caused’’ a affected states finalized in this action is unless certain exceptions apply specific violation of the NAAQS at a narrow and applies only to the specific including an exception for ‘‘good particular monitor on a particular day). SIP provisions determined to be cause.’’ In this action, the EPA is For clarity and ease of discussion, the inconsistent with the requirements of simultaneously taking final action on EPA is responding to these overarching the CAA. To the extent that a state is the Petition, issuing its revised SSM comments, grouped by topic, in this concerned that elimination of a Policy guidance to states for SIP section of this document. particular aspect of an existing emission provisions applicable to emissions 1. Comments that section 110(k)(5) limitation, such as an impermissible during SSM events and issuing a SIP requires the EPA to ‘‘prove causation’’ exemption, will render that emission call to 36 states for specific existing SIP to have authority to issue a SIP call. limitation more stringent than the state provisions that it has determined to be Comment: Numerous state and originally intended and more stringent substantially inadequate to meet CAA industry commenters argued that the than needed to meet the CAA requirements. Section 110(k)(5) EPA has no authority to issue a SIP call requirements it was intended to address, provides that the EPA must notify states with respect to a given SIP provision the EPA anticipates that the state will affected by a SIP call and must establish unless and until the Agency first proves revise the emission limitation a deadline for SIP submissions by definitively that the provision has accordingly, but without the affected states in response to a SIP call caused a specific harm, such as a impermissible exemption or other not to exceed 18 months after the date specific violation of the NAAQS in a specific area. These commenters feature that necessitated the SIP call. of such notification. The EPA is generally focused upon the ‘‘attainment With adequate justification, this SIP notifying affected states of this final SIP and maintenance’’ clause of section revision might, e.g., replace a numerical call action on May 22, 2015. Thus, 110(k)(5) and did not address the emission limitation with an alternative regardless of the effective date of this ‘‘comply with any requirement of’’ the control method (design, equipment, action, the deadline for submission of CAA clause. work practice or operational standard) SIP revisions to address the specific SIP For example, many industry as a component of the emission provisions that the EPA has identified commenters opposed the EPA’s limitation applicable during startup as substantially inadequate will be interpretation of section 110(k)(5) on the and/or shutdown periods. November 22, 2016. In addition, the grounds that the Agency had failed to The EPA emphasizes that its authority EPA concludes that there is good cause provide a specific technical analysis under CAA section 110(k)(5) does not for this final action to be effective on ‘‘proving’’ how the SIP provisions failed extend to requiring a state to adopt a May 22, 2015, the day upon which the to provide for attainment or particular control measure in its SIP EPA provided notice to the states, maintenance of the NAAQS. For areas revision in response to the SIP call. because any delayed effective date attaining the NAAQS, commenters Under principles of cooperative would be unnecessary given that CAA asserted that there should be a federalism, the CAA vests air agencies section 110(k)(5) explicitly provides that presumption that existing SIP with substantial discretion in how to the deadline for submission of the provisions are adequate if they have develop SIP provisions, so long as the required SIP revisions runs from the resulted in attainment of the NAAQS. provisions meet the legal requirements date of notification to the affected states, For areas violating the NAAQS, and objectives of the CAA.306 Thus, the not from some other date, and shall not commenters claimed that the EPA is inclusion of a SIP call to a state in this exceed 18 months. required to conduct a technical analysis action should not be misconstrued as a D. Response to Comments Concerning to determine if there is a ‘‘nexus directive to the state to adopt a SIP Call Authority, Process and Timing between the provisions that are the particular control measure. The EPA is subject of its SSM SIP Call Proposal and merely requiring that affected states The EPA received a wide range of the specific pollutants for which make SIP revisions to remove or revise comments on the February 2013 attainment has not been achieved.’’ existing SIP provisions that fail to proposal and the SNPR questioning the Other industry commenters argued that comply with fundamental requirements scope of the Agency’s authority to issue in order to have authority to issue a SIP of the CAA. The states retain discretion this SIP call action under section call, the EPA must prove through a to remove or revise those provisions as technical analysis that a given SIP they determine best, so long as they 307 Notwithstanding the latitude states have in developing SIP provisions, the EPA is required to provision ‘‘is’’ substantially inadequate, bring their SIPs into compliance with assure that states meet the basic legal criteria for not that it ‘‘may be.’’ These commenters SIPs. See Michigan v. EPA, 213 F.3d 663, 686 (D.C. claimed that the EPA has not shown 306 See Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. Cir. 2000) (upholding NOx SIP call because, inter how any of the SIP provisions at issue 1997) (SIP call remanded and vacated because, inter alia, the EPA was requiring states to meet basic alia, the EPA had issued a SIP call that required legal requirement that SIPs comply with section in this action ‘‘threatens the NAAQS, states to adopt a particular control measure for 110(a)(2)(D), not dictating the adoption of a fails to sufficiently mitigate interstate mobile sources). particular control measure). transport, or comply with any other

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CAA requirement.’’ Many industry legal requirements of the CAA is a requirement of the CAA at issue was the commenters questioned whether exempt sufficient basis for a SIP call, some statutory obligation of each state to have emissions during SSM events pose any commenters provided additional a SIP that contains adequate provisions attainment-related concerns, making support to illustrate how SIP provisions to prohibit emissions from sources ‘‘in assertions such as: ‘‘[i]nfrequent with deficiencies such as automatic or amounts’’ that ‘‘contribute significantly malfunction, startup and shutdown discretionary exemptions for emissions to nonattainment in, or interfere with events at a limited number of stationary during SSM events result in large maintenance by, any other State’’ with sources are likely to have no effect on amounts of excess emissions that would respect to the NAAQS. Because of the attainment.’’ otherwise be violations of the applicable phrase ‘‘in amounts,’’ the EPA Many state commenters made similar emission limitations. considered it appropriate to evaluate arguments, based on the specific Response: The EPA disagrees with the whether each state’s SIP was attainment or nonattainment status of argument that it has no authority to substantially inadequate to comply with areas in their respective states. For issue a SIP call under section 110(k)(5) section 110(a)(2)(D)(i)(I) through a example, one state commenter claimed unless the Agency provides a factual or detailed analysis of the emissions from that the EPA failed to make required technical analysis to demonstrate that the state and their impacts on other technical findings that the specific the SIP provision at issue caused a states. Moreover, given the use of provisions the Agency identified as specific environmental harm or ambiguous terms in section legally deficient ‘‘are so substantially undermined a specific enforcement 110(a)(2)(D)(i)(I) such as ‘‘contribute inadequate that the State cannot attain case. As explained in the February 2013 significantly,’’ the EPA concluded that it or maintain the NAAQS or otherwise proposal, in the SNPR and in this final was appropriate to conduct a detailed comply with the CAA.’’ The commenter action, the EPA interprets its authority analysis to quantify the amount of claimed that the EPA should have under section 110(k)(5) to authorize a emissions that each of the affected states evaluated all of the state’s emission SIP call for not only provisions that are needed to eliminate in order to comply limitations, emission inventories and substantially inadequate for purposes of with section 110(a)(2)(D)(i)(I) for the attainment and maintenance attainment or maintenance of the specific NAAQS in question. However, demonstrations for the NAAQS, rather NAAQS but also those provisions that the EPA’s decision to determine these than focusing on these individual SIP are substantially inadequate for facts and to conduct these analyses as a provisions. In order to demonstrate purposes of ‘‘any requirement’’ of the basis for that particular SIP call action substantial inadequacy under section CAA.308 To be clear, the EPA can also was due to the nature of the SIP 110(k)(5), the state claimed, the EPA issue a SIP call whenever it determines deficiency at issue and the wording of ‘‘must point to facts’’ that show ‘‘the that a SIP as a whole, or a specific SIP section 110(a)(2)(D)(i)(I). The EPA has State cannot attain or maintain the provision, is deficient because the SIP similarly issued other SIP calls for NAAQS or comply with the CAA’’ if the did not prevent specific violations of a which the Agency determined that a provisions remain in the SIP. Other NAAQS, at a specific monitor, on a specific factual or technical analysis states made comparable arguments with specific date. However, that is not the was appropriate to support the finding respect to the SIP provisions at issue in 310 extent of the EPA’s authority under of substantial inadequacy. their SIPs and claimed that the EPA is Not all situations, however, require section 110(k)(5). required to establish how the provisions the same type of detailed factual caused or contributed to a specific On its face, section 110(k)(5) does not analysis to support the finding of violation of a NAAQS in those states. impose any explicit requirements with substantial inadequacy. For example, By contrast, many environmental respect to what specific form of factual when the EPA issued the PSD GHG SIP group commenters and individual or analytical basis is necessary for call to 13 states for failure to have a PSD commenters took the opposite position issuance of a SIP call. Because the permitting program that properly concerning what is necessary to support statute does not prescribe the basis on addresses GHG emissions, the Agency a finding of substantial inadequacy which the EPA is to make a finding of did not need to base that SIP call action under section 110(k)(5). These substantial inadequacy, the Agency on a detailed factual analysis of ambient commenters argued that that the EPA interprets section 110(k)(5) to provide air impacts.311 In that situation, the may issue a SIP call not only where it discretion concerning what is necessary statutory requirement of the CAA in determines that a SIP is substantially to support such a finding. The Agency question was the obligation of each state inadequate to attain or maintain a believes that the nature of the factual or SIP under section 110(a)(2)(C) to NAAQS with a technical analysis but analytical basis necessary to make a also where the Agency determines that finding is dependent upon the specific Reducing Regional Transport of Ozone,’’ 63 FR the SIP is substantially inadequate ‘‘to nature of the substantial inadequacy in 57356 (October 27, 1998). comply with any requirement of the a given SIP provision. 310 See, e.g., ‘‘Finding of Substantial Inadequacy For example, when the EPA issued of Implementation Plan; Call for Iowa State Act.’’ The commenters noted that the Implementation Plan Revision,’’ 76 FR 41424 (July EPA identified specific statutory the NOX SIP Call to multiple states 14, 2011) (SIP call to Iowa due to PM2.5 NAAQS provisions of the CAA with which the because their SIPs failed to address violations in Muscatine area); ‘‘Approval and SIP provisions at issue in this action do interstate transport adequately in Promulgation of State Implementation Plans; Call for Sulfur Dioxide SIP Revisions for Billings/Laurel, not comply. For example, these accordance with section MT [Montana],’’ 58 FR 41430 (August 4, 1993) (SIP commenters agreed with the EPA’s view 110(a)(2)(D)(i)(I), the Agency did base call to Montana due to modeled violations of the that SIP provisions with automatic or that SIP call on a detailed factual SO2 NAAQS). discretionary exemptions for emissions analysis including ambient air 311 See ‘‘Action to Ensure Authority to Issue during SSM events do not meet the impacts.309 In that situation, the specific Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse fundamental requirements that SIP Gas Emissions; Finding of Substantial Inadequacy emission limitations must apply to limit 308 See February 2013 proposal, 78 FR 12459 at and SIP Call,’’ 75 FR 77698 (December 13, 2010). emissions from sources on a continuous 12483–89 (February 22, 2013); SNPR, 79 FR 55919 The EPA notes that a number of petitioners at 55935. challenged this SIP call on various grounds, but the basis, in accordance with sections 309 See ‘‘Finding of Significant Contribution and court ultimately determined that they did not have 110(a)(2)(A), 110(a)(2)(C) and 302(k). In Rulemaking for Certain States in the Ozone standing. Texas v. EPA, 726 F.3d 180 (D.C. Cir. addition to arguing that failure to meet Transport Assessment Group Region for Purposes of 2013).

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include a PSD permitting program that the Utah SIP less than continuous and, meet CAA requirements can be exceeded addresses all federally regulated air contrary to the requirements of CAA sections without potential recourse by any entity pollutants, including GHGs. In that 110(a)(2)(A) and (C), undermines the ability granted enforcement authority by the CAA. action, the EPA made a finding that the to ensure compliance with SIP emissions We are not restricted to issuing SIP calls only limitations relied on to achieve the NAAQS after a violation of the NAAQS has occurred SIPs of 13 states were substantially and other relevant CAA requirements at all or only where a specific violation can be inadequate to ‘‘comply with any times. Therefore, the [provision] renders the linked to a specific excess emissions requirement’’ of the CAA because the Utah SIP substantially inadequate to attain or event.317 PSD permitting programs in their EPA- maintain the NAAQS or to comply with other The EPA’s interpretation of section approved SIPs did not apply to GHG CAA requirements such as CAA sections 110(a)(2)(A) and (C) and 302(k), CAA 110(k)(5) in the Utah action was directly emissions from new and modified challenged in US Magnesium, LLC v. sources. Accordingly, the EPA issued a provisions related to prevention of significant EPA.318 Among other claims, the SIP call to the 13 states because their deterioration (PSD) and nonattainment NSR permits (sections 165 and 173), and petitioners argued that the EPA did not SIPs failed to comply with specific legal provisions related to protection of visibility have authority for the SIP call because requirements of the CAA. This failure to (section 169A).315 the Agency had not ‘‘set out facts meet an explicit CAA legal requirement For a second provision, the EPA made showing that the [SIP provision] has to address GHG emissions in permits for prevented Utah from attaining or sources as required by statute did not a finding of substantial inadequacy because the provision interfered with maintaining the NAAQS or otherwise require the EPA to provide a technical complying with the CAA.’’ Thus, the analysis of the specific environmental the enforcement structure of the CAA. The EPA explained: same arguments raised by commenters impacts that this substantial inadequacy in this action have previously been This provision appears to give the executive would cause. For this type of SIP advanced and rejected by the EPA and deficiency, it was sufficient for the EPA secretary exclusive authority to determine the courts. The court expressly upheld to make a factual finding that the whether excess emissions constitute a the EPA’s interpretation of section affected states had SIPs that failed to violation and thus to preclude independent 110(k)(5), concluding: meet this fundamental legal enforcement action by EPA and citizens when the executive secretary makes a non- requirement.312 The EPA has issued Certainly, a SIP could be deemed violation determination. This is inconsistent substantially inadequate because air-quality other SIP calls for which the Agency with the enforcement structure under the made a finding that a state’s failure to records showed that actions permitted under CAA, which provides enforcement authority the SIP resulted in NAAQS violations, but meet specific legal requirement of the not only to the States, but also to EPA and the statute can likewise apply to a situation CAA for SIPs was a substantial citizens. . . . Because it undermines the like this, where the EPA determines that a inadequacy without the need to provide envisioned enforcement structure, it also SIP is no longer consistent with the EPA’s a technical air quality analysis relating undermines the ability of the State to attain understanding of the CAA. In such a case, the to NAAQS violations.313 and maintain the NAAQS and to comply CAA permits the EPA to find that a SIP is The EPA believes that the most with other CAA requirements related to PSD, substantially inadequate to comply with the visibility, NSPS, and NESHAPS.316 relevant precedent for what is necessary CAA, which would allow the EPA to issue 319 to support a finding of substantial In the Utah SIP call rulemaking, the a SIP call under CAA section 110(k)(5). inadequacy in this action is the SIP call EPA received similar adverse comments Finally, the EPA disagrees with the that the Agency previously issued to the arguing that the Agency has no commenters on this specific point state of Utah for deficient SIP provisions authority under section 110(k)(5) to because it is not a logical construction related to the treatment of excess issue a SIP call without a factual of section 110(k)(5). The implication of emissions during SSM events.314 In that analysis that proves that the deficient the commenters’ argument is that if a SIP call action, the EPA made a finding SIP provisions caused a specific given area is in attainment, then the that two specific provisions in the environmental harm, such as a NAAQS question of whether the SIP provisions state’s SIP were substantially inadequate violation. Commenters in that meet applicable legal requirements is because they were inconsistent with rulemaking likewise argued that the irrelevant. If a given area is not in legal requirements of the CAA. For one EPA was required to prove a causal attainment, then the implication of the of the provisions that included an connection between the excess commenter’s argument is that the EPA exemption for emissions during emissions that occurred during a must prove that the legally deficient SIP ‘‘upsets’’ (i.e., malfunctions), the EPA specific exempt malfunction and a provision factually caused the violation explained: specific violation of the NAAQS. In of the NAAQS or else the legal Contrary to CAA section 302(k)’s definition response to those comments, the EPA deficiency is irrelevant. In the latter of emission limitation, the exemption [in the explained: case, the logical extension of the provision] renders emission limitations in [W]e need not show a direct causal link commenter’s argument is that no matter between any specific unavoidable breakdown how deficient a SIP provision is to meet 312 Id., 75 FR 77698 at 77705–07. excess emissions and violations of the applicable legal requirements, the EPA 313 See, e.g., ‘‘Finding of Substantial Inadequacy NAAQS to conclude that the SIP is is foreclosed from directing the state to of Implementation Plan; Call for California State substantially inadequate. It is our Implementation Plan Revision,’’ 68 FR 37746 (June correct that deficiency unless and until interpretation that the fundamental integrity there is proof of a specific 25, 2003) (SIP call to California for failure to meet of the CAA’s SIP process and structure is legal requirements of section 110(a)(2)(C), section undermined if emission limits relied on to environmental harm caused, or specific 110(a)(2)(I), and section 110(a)(2)(E) because of enforcement case thwarted, by that exemptions for agricultural sources from NNSR and PSD permitting requirements); ‘‘Credible Evidence 315 Id., 76 FR 21639 at 21641. The EPA also found deficiency. Such a reading is Revisions,’’ 62 FR 8314 at 8327 (February 24, 1997) the first provision substantially inadequate because inconsistent with both the letter and the (discussing SIP calls requiring states to revise their it operated to create an additional exemption for intent of section 110(k)(5). SIPs to meet CAA requirements with respect to the emissions during malfunctions that modified the 2. Comments that the EPA must make use of any credible evidence in enforcement actions existing emission limitations in some federal NSPS specific factual findings to meet the for SIP violations). and NESHAP that the state had incorporated by 314 See ‘‘Finding of Substantial Inadequacy of reference into its SIP. The EPA’s 1999 SSM Implementation Plan; Call for Utah State Guidance had indicated that state SIP provisions 317 Id., 76 FR 21639 at 21643. Implementation Plan Revision; Proposed rule,’’ 76 could not validly alter NSPS or NESHAP. 318 690 F.3d 1157 (10th Cir. 2012). FR 21639 (April 18, 2011). 316 Id. 319 Id. 690 F.3d at 1168.

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requirements of section 110(a)(2)(H)(ii) them an opportunity to respond to the new section 110(k)(5). The EPA does not to have authority to issue a SIP call. information.320 interpret section 110(k)(5) to require Comment: A number of commenters Thus, the commenter concluded that proof that a given SIP provision caused argued that even if section 110(k)(5) the EPA must not only find that the SIP a specific environmental harm or does not require the EPA to provide a is facially inconsistent with the legal undermined a specific enforcement technical analysis to support a finding requirements of the CAA but also find action in order to find the provision of substantial inadequacy, section it ‘‘substantially inadequate’’ to achieve substantially inadequate. If the 110(a)(2)(H)(ii) does impose this the goals of the requirements as a factual provision fails to meet fundamental obligation. The commenters noted that matter before issuing a SIP call. The legal requirements of the CAA for SIP section 110(a)(2)(H)(ii) requires states to implication of the commenter’s provisions, that alone is sufficient. Second, even if read in isolation, revise their SIPs ‘‘whenever the argument is that section 110(a)(2)(H)(ii) section 110(a)(2)(H)(ii) does not specify Administrator finds on the basis of imposes additional limitations upon the what type of finding the EPA is required information available to the EPA’s authority to issue a SIP call. to make or specify the way in which the Administrator that the plan is Response: The EPA disagrees that it Agency should make such a finding. substantially inadequate.’’ The has not made the findings necessary to The EPA agrees that this section of the commenters claimed that this statutory support the present SIP call action. The CAA describes findings that the EPA language imposes a requirement for the thrust of the commenters’ argument is that the facts that the EPA ‘‘finds’’ or the makes ‘‘on the basis of information EPA to ‘‘find’’ the SIP inadequate and available to the Administrator that the ‘‘clearly indicates that a SIP Call must ‘‘information’’ upon which the EPA bases such a finding can only be plan is substantially inadequate to be justified by factual findings technical or scientific facts proving that attain’’ the NAAQS. This section does supported by record evidence.’’ a given SIP provision resulted in not, however, expressly state that the One commenter argued that the use of emissions that caused a specific ‘‘information’’ in question must be a the word ‘‘finds’’ should be read in light violation of the NAAQS. As with particular form of information, nor does of the dictionary definition of ‘‘find’’— section 110(k)(5), however, nothing in it expressly require any specified form ‘‘to discover by study or experiment.’’ section 110(a)(2)(H)(ii) compels such a of technical analysis such as modeling The commenter noted that courts narrow reading. The plain language of that demonstrates that a particular SIP commonly hold that agencies must draw section 110(a)(2)(H)(ii) does not support deficiency caused a violation of the a link between the facts and a the commenters’ arguments. To the NAAQS. Because the term challenged agency decision. To support extent that section 110(a)(2)(H)(ii) is ‘‘information’’ is not limited in this way, this basic principle of administrative ambiguous, however, the EPA does not the EPA interprets it to mean whatever law, the commenter cited a litany of interpret it to require the types of form of information is relevant to the cases including: Motor Vehicle Mfrs technical findings claimed by the finding in question. For certain types of Ass’n v. State Farm Mut. Auto Ins. Co., commenters in the case of SIP deficiencies, the EPA may determine 463 U.S. 29, 43 (1983); Appalachian provisions that do not meet legal that such a technical analysis is Power Co. v. EPA, 251 F.3d 1026, 1034 requirements of the CAA. To the appropriate, but that does not mean that (D.C. Cir. 2001); Tex Tin Corp. v. EPA, contrary, the EPA interprets the it is required as a basis for all findings 992 F.2d 353, 356 (D.C. Cir. 1993); Nat’l statutory language to leave to the of substantial inadequacy.321 Gypsum v. EPA, 968 F.2d 40, 43–44 Agency’s discretion what facts or Third, section 110(a)(2)(H)(ii), like (D.C. Cir. 1992); Michigan v. EPA, 213 information are necessary to find that a section 110(k)(5), is not limited to F.3d 663, 681 (D.C. Cir. 2000). Thus, the given SIP provision is substantially findings related exclusively to commenter suggested that the statutory inadequate. In short, the EPA’s attainment of the NAAQS. Section language of section 110(a)(2)(H)(ii) ‘‘finding’’ may be a finding that a SIP 110(a)(2)(H)(ii) also expressly refers to requires a specific factual or technical provision does not meet applicable legal findings by the EPA that a SIP is demonstration concerning the ambient requirements without definitive proof substantially inadequate ‘‘to otherwise air impacts of an inadequate SIP that this legal deficiency caused a comply with any additional provision, even if the language of specific outcome, such as a specific requirements established under’’ the section 110(k)(5) does not. impact on the NAAQS or a specific CAA. The EPA interprets this explicit reference to ‘‘any additional Another commenter argued that the enforcement action. First, section 110(a)(2)(H)(ii) does not requirements’’ to include any legal phrase ‘‘on the basis of information on its face directly address the scope of requirements applicable to SIP available to the Administrator’’ in the EPA’s authority, unlike section provisions, such as the requirement that section 110(a)(2)(H)(ii) means that the 110(k)(5). Section 110(a)(2)(H)(ii) emission limitations must apply EPA must not only consider the specific appears in section 110(a)(2), which continuously. The commenters terms of the SIP provisions relative to contains a listing of specific structural misconstrue section 110(a)(2)(H)(ii) to the legal requirements of the statute but or program requirements that each must also consider other information state’s SIP must include. In the case of 321 See, e.g., ‘‘Finding of Significant Contribution that is ‘‘available,’’ including how the section 110(a)(2)(H)(ii), the CAA and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of provisions have been affecting air requires each state to have provisions in quality or enforcement since approval. Reducing Regional Transport of Ozone; Final rule,’’ its SIP that ‘‘provide for revision of such 63 FR 57355 (October 27, 1998) (EPA found that the In support of this proposition, the plan’’ in the event that the EPA issues SIPs of multiple states did not adequately control commenter cited 1970 legislative history a SIP call. Given that section 110(k)(5) emissions that resulted in significant contribution for section 110(a)(2)(H): to nonattainment in other states); ‘‘Action To is the provision that directly addresses Ensure Authority To Issue Permits Under the Whenever the Secretary or his the EPA’s authority to issue a SIP call, Prevention of Significant Deterioration Program to representative finds from new information section 110(a)(2)(H)(ii) should not be Sources of Greenhouse Gas Emissions: Finding of developed after the plan is approved that the interpreted in a way that contradicts or Substantial Inadequacy and SIP Call; Final rule,’’ 75 plan is not or will not be adequate to achieve FR 77697 (December 13, 2010) (EPA found that the curtails the broad authority provided in SIPs of multiple states did not meet the legal promulgated ambient air quality standards he requirements for PSD permitting for GHG must notify the appropriate States and give 320 See S. Rep No. 91–1196 at 55–56 (1970). emissions).

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refer exclusively to provisions that are SIP. Similarly, the EPA has found, because it ignores the statutory literally found to cause a specific consistent with the court’s decision in requirement that a SIP call be based on violation of the NAAQS. The EPA NRDC v. EPA, that affirmative defenses inadequacies that are ‘‘substantial’’ and acknowledges that the legislative history in SIP provisions are inconsistent with that the interpretation does not meet the quoted by the commenters discusses CAA requirements because they operate ‘‘high bar’’ Congress established before findings related to a failure of a SIP to to alter or eliminate the jurisdiction of states could be required to undertake attain the NAAQS, but the passage the courts to determine liability and the difficult task of revising a SIP. quoted does not explain the meaning of impose penalties. In short, the EPA has State commenters claimed that the ‘‘new information’’ any more made the factual findings that specific requirement that the EPA must specifically than the statute, nor does provisions are substantially inadequate determine that the SIP is ‘‘substantially’’ the passage explain why the actual to meet requirements of the CAA, as inadequate establishes a heavy burden statutory text of section 110(a)(2)(H)(ii) contemplated in both section for the EPA. The commenters relied on now refers to findings related to failures 110(a)(2)(H)(ii) and section 110(k)(5). a dictionary definition of to meet ‘‘any additional requirements’’ Finally, the EPA notes that the cases ‘‘substantially’’ as meaning of the CAA.322 Moreover, the cited by the commenters to support ‘‘considerable in importance, value, commenters did not address the changes their contentions concerning the factual degree, amount, or extent.’’ The to the CAA in 1977 that added to the basis for agency decisions are not commenters argued that when statutory language to refer to other relevant to the specific question at hand. modifying the word ‘‘inadequate,’’ the requirements, nor did they address the The correct question is whether section use of the modifier ‘‘substantially’’ in changes to the CAA in 1990 that added 110(a)(2)(H)(ii) requires the type of section 110(k)(5) enhances the degree of section 110(k)(5), which refers to all factual or technical analysis that they proof required. Thus, the commenters other requirements of the CAA. The claim. None of the cases they cited argued that the EPA cannot just assume EPA believes that the more recent address this specific issue. By contrast, that the provisions may prevent changes to the statute in fact support its the decision of the Tenth Circuit in US attainment of the NAAQS. view that section 110(a)(2)(H)(ii) entails Magnesium, LLC v. EPA is much more Other industry commenters disagreed compliance with the legal requirements relevant. In that decision, the court that the term ‘‘substantially inadequate’’ of the CAA, not the narrow reading concluded that the EPA’s authority is ambiguous but claimed that even if it advocated by the commenters. under section 110(k)(5) is not restricted were, the EPA’s own interpretation is Fourth, the EPA disagrees with the to situations where a deficient SIP vague and ambiguous. The commenters commenters’ arguments that it did not provision caused a specific violation of asserted that the EPA’s statement that it make factual ‘‘findings’’ to support this the NAAQS and the exercise of that must evaluate the adequacy of specific SIP call. To the contrary, the EPA has authority does not require specific SIP provision ‘‘in light of the specific made numerous factual determinations factual findings that the provision purposes for which the SIP provision at with regard to the specific SIP caused such impacts.323 issue is required’’ and with respect to provisions at issue. For example, for 3. Comments that the EPA lacks whether the provision meets those SIP provisions that include authority to issue a SIP call because it ‘‘fundamental legal requirements automatic exemptions for emissions is interpreting the term ‘‘substantial applicable to such a provision’’ is not a during SSM events, the EPA has found inadequacy’’ incorrectly. reasonable interpretation of the that the provisions are inconsistent with Comment: Some commenters claimed statutory language. Furthermore, the the definition of ‘‘emission limitation’’ that although the term ‘‘substantially commenters argued, the EPA’s in section 302(k) and that SIP provisions inadequate’’ is not defined in the interpretation of section 110(k)(5) to that allow sources to exceed otherwise statute, the EPA made no effort to authorize a SIP call in the absence of applicable emission limitations during interpret the term. Citing Qwest Corp. v. any causal evidence that the SIP SSM events may interfere with FCC, 258 F.3d 1191, 1201–02 (10th Cir. provision at issue causes a particular attainment and maintenance of the 2001), the commenters argued that the environmental impact reads out of the NAAQS. The EPA has also made the EPA is not entitled to any deference to statute ‘‘the explicit requirement that a factual determination that other SIP its interpretation of the term SIP call related to NAAQS be made only provisions that authorize director’s ‘‘substantial inadequacy.’’ where the state plan is substantially discretion exemptions during SSM Other commenters acknowledged that inadequate to attain or maintain the events are inconsistent with the the EPA took the position that the term relevant standard.’’ statutory provisions applicable to the ‘‘substantially inadequate’’ is not Response: The EPA disagrees with approval and revision of SIP provisions. defined in the CAA and that the Agency commenters who claimed that the The EPA has found that overbroad can establish an interpretation of that Agency did not explain its enforcement discretion provisions are provision under Chevron step 2. interpretation of section 110(k)(5) in inconsistent with the enforcement However, these commenters disagreed general, or the term ‘‘substantially structure of the CAA in that they could that the EPA’s interpretation of the term inadequate’’ in particular, in the be interpreted to allow the state to make in the February 2013 proposal was February 2013 proposal. To the the final decision whether such reasonable. In particular, the contrary, the EPA provided an emissions are violations, thus impeding commenters disagreed with the EPA’s explanation of why it considers section the ability of the EPA and citizens to view that once a SIP provision is found 110(k)(5) to be ambiguous and provided enforce the emission limitations of the to be ‘‘facially inconsistent’’ with a a detailed explanation of how the specific legal requirement of the CAA, Agency is interpreting and applying that 322 The EPA notes that the significance of this nothing more is required to find the statutory language to the specific SIP 1970 legislative history was raised in US provision ‘‘substantially inadequate’’ to provisions at issue in this action.324 Magnesium, LLC v. EPA, 690 F.3d 1157, 1166 (10th ‘‘comply with’’ that requirement. Moreover, the EPA explained why it Cir. 2012). That court found the legislative history Commenters claimed that the EPA’s ‘‘inapposite’’ simply because it did not pertain to believes that the four major types of section 110(k)(5) which Congress added to the CAA interpretation conflicts with the statute in 1990. This legislative history passage is of 324 See February 2013 proposal, 78 FR 12459 at limited significance in this action as well. 323 Id., 690 F.3d 1157, 1166. 12483–88.

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provisions at issue are inconsistent with EPA strongly disagrees with the view NAAQS. The EPA believes that applicable legal requirements of the that complying with applicable legal Congress consciously included these CAA and thus substantially inadequate. requirements is not an important fundamental legal requirements in order In the SNPR, the EPA reiterated its consideration in general, and not to assure that SIP provisions will interpretation of section 110(k)(5) with important with respect to the specific achieve the objectives of the CAA, such respect to affirmative defense provisions legal defects at issue here. For example, as attainment and maintenance of the in SIPs but updated that interpretation the EPA considers a SIP provision that NAAQS. For example, legislative in response to the logic of the more does not apply continuously because it history for section 302(k) indicates that recent court decision in NRDC v. EPA. contains SSM exemptions to be Congress intentionally required that Thus, the commenters’ reliance on the substantially inadequate because it fails emission limitations apply continuously Qwest decision is not appropriate, to meet legal requirements of sections in order to assure that they would because the EPA did explain its 110(a)(2)(A), 110(a)(2)(C) and 302(k). In achieve these goals as well as be interpretation of the statute and it is not particular, failure to meet the legal consistent with the enforcement one that is contrary to the statute. A requirements for an emission limitation structure of the CAA.325 more appropriate precedent is the as contemplated in section 302(k) is a 4. Comments that the EPA lacks decision in US Magnesium, LLC v. EPA, ‘‘substantial’’ inadequacy. The EPA is authority to issue a SIP call because it in which the same court upheld the not alone in this view; the D.C. Circuit is required to ‘‘quantify’’ the magnitude EPA’s interpretation of its authority in the Sierra Club v. Johnson case held of any alleged SIP deficiency in order to under section 110(k)(5). In short, the that emission limitations must be establish that it is substantial. EPA believes that section 110(k)(5) continuous and cannot contain SSM Comment: A number of commenters provides the EPA with discretion to exemptions. If inclusion of SSM argued that, in addition to failing to determine what constitutes a substantial exemptions in emission limitations provide a required technical analysis to inadequacy and to determine the were not a ‘‘substantial’’ deficiency from support a SIP call, the EPA was also appropriate basis for such a finding in the court’s perspective, presumably the failing to quantify in advance the degree light of the relevant CAA requirements court would have ruled differently. As of inadequacy that is necessary for a at issue. Thus, the commenters are in another example, the EPA considers the given SIP provision to be substantially error that the EPA did not articulate its inclusion of affirmative defenses in SIP inadequate. The commenters asserted interpretation of section 110(k)(5). provisions that operate to alter the that the EPA has a burden to define in The EPA also disagrees with those jurisdiction of the courts to be a advance what amount of inadequacy is commenters who argued that the substantial inadequacy. Again, the ‘‘substantial,’’ before the Agency can Agency has ignored or misinterpreted EPA’s view that SIP provisions cannot require states to comply with a SIP call. the term ‘‘substantial’’ in this action. As interfere with the enforcement structure Some commenters made this argument many commenters acknowledged, this of the CAA set forth in section 113 and based upon their experience with prior term is not defined in the statute. Their section 304 is not unreasonable. The SIP call rulemakings, such as the NOX reliance on a dictionary definition, court’s decision in NRDC v. EPA held SIP call in which the Agency performed however, is based on the incorrect that EPA regulations cannot alter or such an analysis. Other commenters, premise that a failure to comply with eliminate the jurisdiction of courts to however, evidently based this argument the legal requirements of the CAA for determine liability and impose remedies upon their reading of the D.C. Circuit’s SIP provisions is not ‘‘considerable in in judicial enforcement cases and this decision in EME Homer City Generation, importance, value, degree, amount, or 326 same logic extends to the states in SIP L.P. v. EPA. Some commenters also extent.’’ provisions. Contrary to the arguments of argued that ‘‘all’’ past EPA SIP calls First, the commenters’ argument the commenters, the EPA reasonably have been based upon a specific ignores the full statutory language of technical analysis concerning the section 110(k)(5) in which the EPA is interprets the term ‘‘substantial’’ in section 110(k)(5) to include compliance sufficiency of a SIP to provide for authorized to issue a SIP call whenever attainment and maintenance of a it determines that a given SIP provision with the legal requirements of the CAA applicable to SIP provisions. NAAQS and that this establishes that is inadequate, not only because of such an analysis is always required. impacts on attainment of the NAAQS Third, the EPA notes that its reading of section 110(k)(5) does not ‘‘read out Response: The EPA disagrees that but also upon a failure to meet ‘‘any section 110(k)(5) requires the Agency to other requirement’’ of the CAA. As of the statute’’ the statutory language that SIP provisions can be substantially ‘‘quantify’’ the degree of inadequacy in explained in the February 2013 proposal a given SIP provision before issuing a and in the SNPR, the EPA interprets its inadequate ‘‘to attain or maintain the relevant NAAQS’’ as claimed by the SIP call. As explained in detail in the authority under section 110(k)(5) to February 2013 proposal and this encompass any type of deficiency, commenters. The EPA agrees that SIP provisions can be found substantially document, the EPA interprets section including failure to meet specific legal 110(k)(5) to authorize the Agency to requirements of the CAA for SIP inadequate for this specific reason, but it is the commenters who read words determine the nature of the analysis provisions. Failure to comply with these necessary to make a finding that a SIP legal requirements can have the effect of out of section 110(k)(5) by disregarding provision is substantially inadequate. interfering with attainment and the portion of the statute that also The EPA agrees that for certain SIP call maintenance of the NAAQS (e.g., by authorizes a SIP call whenever a SIP actions, such as the NO SIP call, the allowing unlimited emissions from provision does not ‘‘comply with any X sources during SSM events), but the requirement of’’ the CAA. Indeed, the 325 See, e.g., H.R. 95–294, at 92 (1977) (referring failure to comply with the legal EPA believes that SIP provisions that to emission limitations as a fundamental tool for requirements is in and of itself a basis fail to meet the specific legal assuring attainment and maintenance of the for a SIP call. requirements of the CAA are very likely NAAQS and stating that unless they are ‘‘complied Second, the commenters’ argument to have these impacts as well; e.g., the with at all times, there can be no assurance that ambient standards will be attainment and implies that failure of a SIP provision to unlimited emissions authorized by SSM maintained.’’ meet a legal requirement of the CAA is exemptions can interfere with 326 696 F.3d 7, 29 (D.C. Cir. 2012) rev’d, 134 S. not a ‘‘substantial’’ inadequacy. The attainment and maintenance of the Ct. 1584 (2014).

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specific nature of the SIP call in statute’’ under the principles of Chevron states’ selection of the control measures question for section 110(a)(2)(D)(i) did deference.327 they elect to impose to satisfy CAA warrant a technical evaluation of Response: The EPA disagrees with the requirements relating to NAAQS whether the emissions from sources in commenters’ view of the cooperative- attainment and maintenance, provided particular states were significantly federalism relationship established in that those selected measures comply contributing to violations of a NAAQS the CAA, as explained in detail in with all CAA requirements such as the in other states. Thus, the EPA elected to section V.D.2 of this document. Because need for continuous emissions perform a specific form of analysis to the commenters are misconstruing the limitations. Accordingly, the EPA respective responsibility and authorities determine whether emissions from believes that its interpretation of section of the states and the EPA under 110(k)(5) is fully consistent with the sources in certain states significantly cooperative federalism, the Agency does letter and the purpose of the principles contributed to violations of the NAAQS not agree that its interpretation of of cooperative federalism. in other states, and if so, what degree of section 110(k)(5) is ‘‘unreasonable’’ for 6. Comments that the EPA cannot reductions were necessary to remedy this reason under the principles of issue a SIP call for an existing SIP that interstate transport. Chevron. As explained in detail in the provision unless the provision was The nature of the SIP deficiencies at February 2013 proposal, the EPA deficient at the time the state originally issue in this action does not require that interprets its authority under section developed and submitted the provision type of technical analysis and does not 110(k)(5) to include the ability to for EPA approval. require a ‘‘quantification’’ of the extent require states to revise their SIP Comment: Commenters argued that of the deficiency. In this action, the EPA provisions to correct the types of the EPA is using the SIP call to require is promulgating a SIP call action that deficiencies at issue in this action. states to change SIP provisions that directs the affected states to revise Section 110(k)(5) explicitly authorizes were acceptable at the time they were the EPA to issue a SIP call for a broad originally approved and argued that existing SIP provisions with specific range of reasons, including to address section 110(k)(5) cannot be used for that legal deficiencies that make the any SIP provisions that relate to purpose. Specifically, one commenter provisions inconsistent with attainment and maintenance of the asserted that section 110(k)(5) provides fundamental legal requirements of the NAAQS, to interstate transport, or to that findings of substantial inadequacy CAA for SIPs, e.g., automatic any other requirement of the CAA.328 shall ‘‘subject the State to the exemptions for emissions during SSM The EPA’s authority and responsibility requirements of this chapter to which events or affirmative defense provisions to review SIP submissions in the first the State was subject when it developed that limit or eliminate the jurisdiction of instance is to assure that they meet all and submitted the plan for which such courts to determine liability and impose applicable procedural and substantive finding was made.’’ (Emphasis added by remedies for violations. Accordingly, requirements of the CAA, in accordance commenter.) The implication of the the EPA has determined that it is not with the requirements of sections commenters’ argument is that a SIP necessary to establish that these 110(k)(3), 110(l) and 193. The EPA’s provision only needs to meet the deficiencies literally caused a specific authority and responsibility under the requirements of the CAA that were violation of the NAAQS on a particular CAA includes assuring that SIP applicable at the time the state day or undermined a specific provisions comply with specific originally developed and submitted the enforcement case. It is sufficient that the statutory requirements, such as the provision for EPA approval. Because the provisions fail to meet a legal requirement that emission limitations EPA has no authority to issue a SIP call requirement of the CAA and thus are apply to sources continuously. The CAA under their preferred reading of section substantially inadequate as provided in imposes these statutory requirements in 110(k)(5), the commenters claimed, the section 110(k)(5). order to assure that the larger objectives EPA would have to use its authority of SIPs are achieved, such as the under section 110(k)(6) and would have 5. Comments that the EPA’s attainment and maintenance of the to establish that the original approval of interpretation of substantial inadequacy NAAQS, protection of PSD increments, each of the provisions at issue in this would override state discretion in improvement of visibility and providing action was in error. development of SIP provisions. for effective enforcement. The CAA Response: The EPA disagrees with Comment: Some state and industry imposes this authority and this reading of section 110(k)(5). As an commenters argued that the EPA’s responsibility upon the EPA when it initial matter, the commenter takes the interpretation of its authority under first evaluates a SIP submission for quoted excerpt of the statute out of section 110(k)(5) is wrong because it is approval. Likewise, after the initial context. The quoted language follows inconsistent with the principle of approval, section 110(k)(5) authorizes ‘‘to the extent the Administrator deems cooperative federalism. These the EPA to require states to revise their appropriate.’’ Thus, it is clear when the commenters asserted that the EPA’s SIPs whenever the Agency later statutory provision is read in full that interpretation of the term ‘‘substantially determines that to be necessary to meet the EPA has discretion in specifying the inadequate,’’ as explained in the CAA requirements. This does not in any requirements to which the state is subject and is not limited to specifying February 2013 proposal, would allow way allow the EPA to interfere in the only those requirements that applied at the Agency to dictate that states revise 327 the time the SIP was originally their SIPs without any consideration of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). ‘‘developed and submitted.’’ Moreover, whether the states’ preferred control 328 See, e.g., US Magnesium, LLC v. EPA, 690 F.3d this cramped reading of section measures affect attainment of the 1157, 1168 (10th Cir. 2012) (citing 42 U.S.C. 110(k)(5) is not a reasonable NAAQS, thereby expanding the EPA’s 7410(k)(5)) (holding that the EPA may issue a SIP call not only based on NAAQS violations, but also interpretation of the statute because by role in CAA implementation. whenever ‘‘EPA determines that a SIP is no longer this logic, the EPA could never require Consequently, these commenters consistent with the EPA’s understanding of the states to update grossly out-of-date SIP concluded, the EPA’s interpretation of CAA’’); id. at 1170 (upholding the EPA’s authority provisions so long as the provisions section 110(k)(5) is neither ‘‘reasonable’’ ‘‘to call a SIP in order to clarify language in the SIP that could be read to violate the CAA,’’ even absent originally met CAA requirements. Given nor ‘‘a permissible construction of the a pertinent judicial finding). that the CAA creates a process by which

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the EPA is required to establish and to it allows the states to evaluate the arithmetical mean versus one that is update the NAAQS on a continuing overall structure of their existing SIPs measured by a 98th-percentile value. basis, and states are required to update and determine how best to modify the Moreover, commenters alluded to the and revise their SIPs on a continuing affected SIP provisions in order to difficulty of ascertaining definitively basis, the Agency believes that Congress address the identified deficiencies. By how emissions of specific precursor would not have intended that SIP contrast, use of the error correction pollutants during a given exempted provisions remain static for all time authority under section 110(k)(6) would SSM event would affect attainment of simply because they were adequate result in immediate disapproval and one or more NAAQS. when first developed and approved. removal of existing SIP provisions from To support the argument that the Such an interpretation would mean that the SIP, which could cause confusion in validity of SSM exemptions must be subsequent legally significant events terms of what requirements apply to evaluated with respect to specific such as amendments of the CAA, court sources. Moreover, the EPA’s NAAQS, the commenters relied upon decisions interpreting the CAA and new disapproval of a SIP submission through recent modeling guidance for the 1-hour or revised EPA regulations are not an error correction that reverses a prior NO2 NAAQS in which, the commenters relevant to the continuing adequacy of SIP approval of a required SIP provision claimed, the EPA directed states to existing SIP provisions. Similarly, such starts a ‘‘sanctions clock,’’ and sanctions disregard emissions during SSM events an interpretation would mean that facts would apply if the state has not for purposes of demonstrating arising later could never provide a basis submitted a revised SIP within 18 compliance with that NAAQS. The for a SIP call, e.g., to address interstate months. Similarly, the EPA would be commenters claimed that the cited EPA transport that was not evident at the required to promulgate a FIP if the guidance supports their argument that time of the original development and Agency has not approved a revised SIP emissions from a source during any approval of the SIP provisions or that submission from the state within 24 specific SSM event are unlikely to cause needs to be addressed further because of months. In comparison, the sanctions a violation of the 1-hour NO2 NAAQS. a revised NAAQS. and federal plan ‘‘clocks’’ would not Accordingly, the commenters argued The commenters also argued that if a start under the SIP call approach unless that the EPA has no authority to state’s SIP provision was flawed at the and until the state fails to submit a SIP interpret the CAA to preclude time the EPA approved it, then the revision in response to this SIP call, or exemptions for emissions during SSM Agency’s only alternative for addressing unless and until the EPA disapproves events without first demonstrating that the deficient provision is through the that SIP submission. As explained in the the exempt emissions cause NAAQS error correction authority of section February 2013 proposal, the EPA violations. 110(k)(6). The EPA disagrees. The CAA determined that the SIP call process was Response: As explained in the provides a number of tools to address a better procedure through which to February 2013 proposal, and in flawed SIPs and the EPA does not address the deficient SIP provisions at response to other comments in this interpret these provisions to be issue in this action. action, the EPA does not interpret mutually exclusive. While the EPA 7. Comments that the EPA failed to section 110(k)(5) to require a specific could potentially have relied on section consider how excess emissions resulting technical analysis to support a SIP call 110(k)(6) to remove the deficient from SSM exemptions would affect related to legal deficiencies in SIP provisions at issue in this action, the compliance with specific NAAQS, provisions. In section 110(k)(5), Agency believes that section 110(k)(5) including NAAQS with different Congress left it to the Agency’s authority also provides a means to averaging periods or different statistical discretion to determine what type and address flawed SIP provisions. As forms. level of analysis is necessary to establish explained in the February 2013 Comment: In addition to general that a SIP provision is substantially proposal, the EPA specifically claims that the EPA failed to provide inadequate. As explained in the considered the relative merits of required technical analysis to support February 2013 proposal, the EPA does reliance on section 110(k)(5) and section the proposed SIP call to states for not need to define the precise contours 110(k)(6) and determined that the automatic and discretionary SSM of its authority under section 110(k)(5) former was a better approach for this exemptions, commenters specifically for all potential types of SIP deficiencies action.329 In the present circumstances, argued that the EPA is required to in this action. For purposes of this the EPA is not addressing a single establish that these exemptions have action, it is sufficient that the SIP targeted flaw, i.e., a specific SIP revision caused violations in light of the provisions at issue are inconsistent with that was flawed. Moreover, the EPA is considerations such as the averaging applicable requirements. While an not only dealing with a multitude of time or statistical form of specific ambient air quality impact analysis may states in this action, but also in many NAAQS. The implication of the be appropriate to support a SIP call with cases with numerous SIP provisions commenters’ argument is that in order respect to certain requirements of the developed over the years by a specific to demonstrate that a given SIP CAA, e.g., a SIP call for failure to have state. The provisions at issue often are provision with an SSM exemption is SIP provisions to prevent significant included in several different places in a substantially inadequate under section contribution to nonattainment in complex SIP and can affect multiple 110(k)(5), the EPA has to establish another state in accordance with section emission limitations in the SIP that definitively that the emissions during 110(a)(2)(D)(i)(I), the EPA does not apply to sources for purposes of SSM events would cause a violation of interpret the CAA to require such an multiple NAAQS. a particular NAAQS. This would analysis in all instances. In particular, Comparing the SIP call and error potentially include an evaluation of the where the substantial inadequacy is correction approaches, the EPA impacts of the exempted emissions on related to a failure to meet a concluded that the SIP call authority NAAQS with different averaging fundamental legal requirement for SIP under section 110(k)(5) provides the periods, e.g., impacts on an annual provisions, such as the requirement in better approach for this action, in that NAAQS, a 24-hour NAAQS, or a 1-hour section 302(k) that emission limitations NAAQS, and impacts on NAAQS with apply continuously, the EPA does not 329 See February 2013 proposal, 78 FR 12459 at different statistical forms, e.g., a NAAQS believe that such a technical analysis is 12483, n.72. that measures attainment by an annual required.

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For example, section 302(k) does not hypothetically under the commenters’ NO2 NAAQS. Thus, as an initial matter, differentiate between the legal premise, a given source could the EPA notes that the context of that requirements applicable to SIP emission simultaneously be required to comply guidance relates to determining the limitations for an annual NAAQS versus with a rate-based NOX emission extent of emission reductions that a for a 1-hour NAAQS, nor between any limitation continuously for purposes of source needs to achieve in order to NAAQS based upon the statistical form a 1-hour NO2 NAAQS but not be obtain a permit under the PSD program, of the respective standards. In addition required to do so for purposes of an which is distinct from the question of to being supported by the text of section annual NO2 NAAQS, or the source whether an emission limitation in a 302(k), the EPA’s interpretation of the could be required to comply permit must assure continuous emission requirement for sources to be subject to continuously with the same NOx reductions. continuous emission limitations is also limitation for purposes of the 8-hour The commenters argued that this EPA the most logical given the consequences ozone NAAQS and the 24-hour PM 2.5 guidance ‘‘allows sources to completely of the commenters’ theory. The NAAQS but not be required to do so for exclude all emissions during startup commenters’ argument provides purposes of the annual PM2.5 NAAQS. additional practical reasons to support Add to this the further complication and shutdown scenarios.’’ This the EPA’s interpretation of the CAA to that the source may be located in an characterization is inaccurate for a preclude exemptions for emissions area that is designated nonattainment number of reasons. First, the guidance during SSM events from SIP emission for some NAAQS and attainment for in question is only intended to address limitations as a basic legal requirement other NAAQS, and thus subject to certain modeling issues related to for all emission limitations. emission limitations for attainment and predictive modeling to demonstrate that The EPA agrees that to ascertain the maintenance requirements proposed construction will not cause or specific ambient impacts of emissions simultaneously. contribute to violation of the 1-hour during a given SSM event can Under the commenters’ premise, the NO2 NAAQS, for purposes of sometimes be difficult. This difficulty same SIP emission limitation, subject to determining whether a PSD permit may can be exacerbated by factors such as the same statutory definition in section be issued and whether the emission exemptions in SIP provisions that not 302(k), could validly include SSM limitations in the permit will require only excuse compliance with emission exemptions for purposes of some sufficient emission reductions to avoid limitations but also affect reporting or NAAQS but not others. Such a system a violation of this standard. recordkeeping related to emissions of regulation would make it Second, to the extent that the during SSM events. Determining unnecessarily hard for regulated guidance indicates that air quality specific impacts of emissions during entities, regulators and other parties to considerations might in certain SSM events can be further complicated determine whether a source is in circumstances and for certain purposes by the fact that the limited monitoring compliance. The EPA does not believe be relevant to determining what network for the NAAQS in many states that this is a reasonable interpretation of emission limitations should apply to a may make it more difficult to establish the requirements of the CAA, nor of its source, that does not mean a source may that a given SSM event at a given source authority under section 110(k)(5). This legally have an exemption from caused a specific violation of the unnecessary confusion is easily resolved compliance with existing emissions NAAQS. Even if a NAAQS violation is simply by interpreting the CAA to limitations during SSM events. In the monitored, it may be the result of require that a source subject to a SIP guidance cited by the commenter, the emissions from multiple sources, emission limitation for NO must meet X EPA did recommend that under certain including multiple sources having an the emission limitation continuously, in circumstances, it may be appropriate to SSM event simultaneously. The accordance with the express model the projected impact of the different averaging periods and requirement of section 302(k), thus source on the NAAQS without taking statistical forms of the NAAQS may making SSM exemptions impermissible. into account ‘‘intermittent’’ emissions make it yet more difficult to determine The EPA does not agree that the term the impacts of specific SSM events at ‘‘emission limitation’’ can reasonably be from sources such as emergency specific sources, perhaps until years interpreted to allow noncontinuous generators or emissions from particular after the event occurred. By the emission limitations for some NAAQS kinds of ‘‘startup/shutdown’’ 331 commenters’ own logic, there could be and not others. The D.C. Circuit has operations. However, the EPA did not situations in which it is functionally already made clear that the term intend this to suggest that emissions impossible to demonstrate definitively ‘‘emission limitation’’ means limits that from sources during SSM events may that emissions during a given SSM apply to sources continuously, without validly be treated as exempt in SIP event at a single source caused a exemptions for SSM events. emission limitations. Within the same specific violation of a specific NAAQS. Finally, the EPA disagrees with the guidance document, the EPA stated The commenters’ argument, taken to specific arguments raised by unequivocally that the guidance ‘‘has no its logical extension, could result in commenters concerning the modeling effect on or relevance to existing 330 situations where a SIP emission guidance for the 1-hour NO2 NAAQS. policies and guidance regarding excess limitation is only required to be As relevant here, that guidance provides emissions that may occur during startup continuous for purposes of one NAAQS recommendations about specific issues and shutdown.’’ The EPA explained but not for another, based on that arise in modeling that is used in the further that ‘‘all emissions from a new considerations such as averaging time or PSD program for purposes of or modified source are subject to the statistical form of the NAAQS. Such demonstrating that proposed applicable permitted emission limits situations could include illogical construction will not cause or and may be subject to enforcement outcomes such as the same emission contribute to a violation of the 1-hour concerning such excess emissions, limitation applicable to the same source regardless of whether a portion of those simultaneously being allowed to contain 330 See Memorandum, ‘‘Additional Clarification emissions are not included in the exemptions for emissions during SSM Regarding Application of Appendix W Modeling modeling demonstration based on the Guidance for the 1-hour NO2 National Ambient Air events for one NAAQS but not for Quality Standard,’’ from T. Fox, EPA/OAQPS, to another. For example, purely Regional Air Division Directors, March 1, 2011. 331 Id. at 2.

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guidance provided here.’’ 332 In other embodied in 1970, not as Congress question of whether a SIP would words, even if a state elects not to substantially amended it in 1990. The provide for attainment of the NAAQS. include intermittent emissions from 1976 guidance pertained not to the Third, the EPA notes that the some types of startup and shutdown current SIP call provision at section commenter did not advocate that the events in certain modeling exercises, 110(k)(5) but rather to the requirements Agency follow the 1976 guidance with this does not mean that sources can be of section 110(a)(2)(H). This is respect to other issues, e.g., that the EPA excused from compliance with the particularly significant because the 1990 would initiate the obligations of states emission limitation during startup and CAA Amendments added section to revise their SIPs simply by making an shutdown, via an exemption for such 110(k)(5) to the statute. Although announcement of substantial emissions. section 110(a)(2)(H) remains in the inadequacy ‘‘without proposal’’; that Third, the guidance does not say that statute, it is primarily a requirement states would be required to make the all SSM emissions may be considered applicable to state ‘‘infrastructure’’ SIP necessary SIP revision within 12 intermittent and excluded from the obligations through which states are months; or that states should make modeling demonstration. The guidance required to have state law authority to those revisions by no later than July 1, explicitly recommends that the meet the structural SIP elements 1977. modeling be based on ‘‘emission required in section 110(a)(2).334 In The EPA has fully articulated its interpretation of the term ‘‘substantial scenarios that can logically be assumed reviewing SIPs for compliance with inadequacy’’ in section 110(k)(5) in the to be relatively continuous or which section 110(a)(2)(H), the EPA verifies February 2013 proposal. As explained occur frequently enough to contribute that state SIPs include the legal in the proposal, the EPA interprets its significantly to the annual distribution authority to respond to any SIP call. By of daily maximum 1-hour current authority to include the contrast, the EPA’s authority to issue a concentrations’’ and gives the example issuance of a SIP call for the types of SIP call under section 110(k)(5) is that it may be appropriate to include legal deficiencies identified in this worded broadly, explicitly including the startup and shutdown emissions from a action. In order to establish that these authority to make a finding of peaking unit at a power plant in the legal deficiencies are substantial modeling demonstration because those substantial inadequacy not only for inadequacies, the EPA does not units go through frequent startup/ failure to attain or maintain the NAAQS interpret section 110(k)(5) to require the shutdown cycles.333 Thus, the guidance but also for failures related to interstate Agency to document precisely how each does not support commenters’ premise transport or ‘‘otherwise to comply with deficiency factually undermines the that the EPA must evaluate the air any requirement of’’ the CAA. objectives of the CAA, such as quality impacts from SSM events in SIP Second, even setting aside that the attainment and maintenance of the actions to determine that SSM guidance is not relevant to the EPA’s NAAQS in a particular location on a exemptions in SIP provisions are authority under section 110(k)(5), the particular date. It is sufficient that these substantially inadequate to meet 1976 guidance on its face did not provisions are inconsistent with the fundamental requirements of the CAA. purport to define the full contours of the legal requirements for SIP provisions set 8. Comments that this SIP call action term ‘‘substantially inadequate’’ in forth in the CAA that are intended to is inconsistent with 1976 EPA guidance section 110(a)(2)(H). The 1976 guidance assure that SIPs in fact do achieve the for such actions. stated explicitly that ‘‘it is difficult to intended objectives. Comment: One commenter argued develop comprehensive guidelines for 10. Comments that because the EPA that the EPA misinterpreted the term all cases’’ and only listed ‘‘[s]ome has misinterpreted the statutory terms ‘‘substantially inadequate’’ in the factors that could be considered’’ in ‘‘emission limitation’’ and February 2013 proposal because the evaluating whether a state’s SIP is ‘‘continuous,’’ the EPA has not Agency is reading this term differently substantially inadequate.335 While the established a substantial inadequacy. than in the past. In support of this EPA acknowledges that these factors Comment: Many state and industry contention, the commenter pointed to a were primarily focused upon ambient commenters disagreed with the EPA’s 1976 guidance document from the EPA air considerations as suggested by the interpretation of the CAA to prohibit concerning the question of when a SIP commenter, they were not limited to SSM exemptions in SIP provisions. may be substantially inadequate. The that topic. Moreover, the EPA stated that These arguments took many tacks, based commenter argued that the EPA is factors ‘‘other than air quality and on the interpretation of various statutory wrong to interpret that term to mean emission data must be considered’’ and provisions, the applicability of the court anything other than a demonstrated provided several examples, including decision in Sierra Club v. Johnson, failure to provide for factual attainment potential amendments to the CAA under alleged inconsistencies related to this of the NAAQS. According to the consideration at that point in time that requirement in the EPA’s own NSPS commenter, the content of the 1976 might change state SIP obligations and and NESHAP regulations and a variety guidance indicates that the EPA is thus create the need for a SIP call. More of other arguments. In particular, many obligated to conduct a specific analysis significantly, nothing in the 1976 commenters argued that the EPA was to determine the air quality impact of an guidance indicated that the EPA should misinterpreting the statutory terms alleged inadequacy in a SIP provision or would ignore legal deficiencies in ‘‘emission limitation’’ and ‘‘continuous’’ and to establish and document the existing SIP provisions or that legal in section 302(k) to preclude automatic specific air quality impacts of the deficiencies are not relevant to the or discretionary exemptions for inadequacy. emissions during SSM events in SIP provisions. As an extension of these Response: The EPA disagrees with the 334 See Memorandum, ‘‘Guidance on commenter for multiple reasons. First, Infrastructure State Implementation Plan (SIP) arguments, commenters also argued that the 1976 document referred to by the Elements under Clean Air Act Section 110(a)(1) and the EPA lacks authority under section commenter was the EPA’s guidance on 110(a)(2),’’ from Stephen D. Page, Director, OAQPS, 110(k)(5) to issue a SIP call when it has to Regional Air Directors, Regions 1–10, September incorrectly interpreted a relevant the requirements of the CAA as it was 13, 2013, at page 51 (explaining that a state meets section 110(a)(2)(H) by having authority to revise its statutory term as the basis for finding a 332 Id. at 11. SIP in response to a SIP call). SIP provision to be substantially 333 Id. at 9. 335 Id. at 10–11. inadequate.

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Response: The EPA disagrees that it section 110(k)(5) as well. In support of defined in the CAA. Thus, whether the lacks authority to issue this SIP call on this reasoning, the commenters relied ‘‘would interfere with’’ standard of the grounds claimed by the commenters. on prior court decisions pertaining to section 110(l) is per se a ‘‘lower’’ As explained in detail in the February the requirements of section 110(l). standard than the ‘‘substantially 2013 proposal and in this final action, Response: The EPA disagrees with the inadequate’’ standard of section the EPA has long interpreted the CAA commenters’ interpretations of the 110(k)(5) as advocated by the to preclude SSM exemptions in SIP relative ‘‘standards’’ of section 110(k)(5) commenters is not clear on the face of provisions. This interpretation has been and section 110(l) and with the the statute, and thus the EPA considers stated by the EPA since at least 1982, commenters’ views on the court these terms ambiguous. reiterated in subsequent SSM Policy decisions pertaining to section 110(l). In As explained in detail in the February guidance documents, applied in a addition, the EPA notes that the 2013 proposal, the EPA interprets its number of notice and comment commenters did not fully address the authority under section 110(k)(5) rulemakings and upheld by courts. related requirements of section 110(k)(3) broadly to include authority to require With respect to the arguments that the concerning approval and disapproval of a state to revise an existing SIP EPA has incorrectly interpreted the SIP provisions, of section 302(k) provision that fails to meet fundamental terms ‘‘emission limitation’’ and concerning requirements for emission legal requirements of the CAA.337 The ‘‘continuous’’ in this action, the EPA limitations or of any other sections of commenters raise a valid point that has responded in detail in section the CAA that are substantively germane section 110(l) and section 110(k)(5), as VII.A.3 of this document and need not to specific SIP provisions and to well as section 110(k)(3), facially appear repeat those responses here. In short, enforcement of SIP provisions in to impose somewhat different standards. the EPA is interpreting those terms general.336 However, the EPA does not agree that consistent with the relevant statutory The commenters argued that, by the the proper comparison is necessarily language and consistent with the ‘‘plain language’’ of the CAA and between section 110(k)(5) and section decision of the court in Sierra Club v. because of ‘‘common sense,’’ Congress 110(l) but instead would compare Johnson. Because the specific SIP intended the section 110(k)(5) SIP call section 110(k)(5) and section 110(k)(3). provisions identified in this action with standard to be ‘‘higher’’ than the section Section 110(l) is primarily an ‘‘anti- automatic or discretionary exemptions 110(l) SIP revision. The EPA disagrees backsliding’’ provision, meant to assure for emissions during SSM events do not that this is a question resolved by the that if a state seeks to revise its SIP to limit emissions from the affected ‘‘plain language.’’ To the contrary, the change existing SIP provisions that the sources continuously, the EPA has three most relevant statutory provisions, EPA has previously determined did found these provisions substantially section 110(k)(3), section 110(l), and meet CAA requirements, then there inadequate to meet CAA requirements section 110(k)(5), are each to some must be a showing that the revision of in accordance with section 110(k)(5). degree ambiguous and are likewise the existing SIP provisions (e.g., a 11. Comments that section 110(k)(5) ambiguous with respect to how they relaxation of an emission limitation) imposes a ‘‘higher burden of proof’’ operate together to apply to newly would not interfere with attainment of upon the EPA than section 110(l) and submitted SIP provisions versus existing the NAAQS, reasonable further progress that section 110(l) requires the EPA to SIP provisions. Section 110(k)(3) or any other requirement of the CAA. By conduct a specific technical analysis of requires the EPA to approve a newly contrast, section 110(k)(3) is a more the impacts of a SIP revision. submitted SIP provision ‘‘if it meets all appropriate point of comparison Comment: Commenters argued that of the applicable requirements of [the because it directs the EPA to approve a the EPA is misinterpreting section CAA].’’ Implicitly, the EPA is required SIP provision ‘‘that meets all applicable 110(k)(5) to authorize a SIP call using a to disapprove a SIP provision if it does requirements’’ of the CAA and section lower ‘‘standard’’ than the section 110(l) not meet all applicable CAA 110(k)(5) authorizes the EPA to issue a ‘‘standard’’ that requires disapproval of requirements. Section 110(l) provides SIP call for previously approved SIP a new SIP provision in the first instance. that the EPA may not approve any SIP provisions that it later determines do The commenters stated that section revision that ‘‘would interfere with . . . not ‘‘comply with any requirement’’ of 110(k)(5) requires a determination by any other applicable requirement of [the the CAA. the EPA that a SIP provision is CAA].’’ Section 110(k)(5) provides that Notwithstanding that each of these ‘‘substantially inadequate’’ to meet CAA the EPA shall issue a SIP call three statutory provisions applies to requirements in order to authorize a SIP ‘‘whenever’’ the Agency finds an different stages of the SIP process, all call, whereas section 110(l) provides existing SIP provision ‘‘substantially three of them explicitly make that the EPA must disapprove a SIP inadequate . . . to otherwise comply compliance with the legal requirements revision provision only if it ‘‘would with [the CAA].’’ None of the core terms of the CAA a part of the analysis. At a interfere with’’ CAA requirements. in each of the three provisions is minimum, the EPA believes that Thus, the commenters asserted that ‘‘the Congress intended these three sections, SIP call standard is higher than the SIP 336 CAA section 110(k)(5) states that ‘‘[w]henever working together, to ensure that SIP revision standard.’’ The commenters the [EPA] finds that the applicable implementation provisions must meet all applicable further argued that it would be ‘‘illogical plan for any area is substantially inadequate to attain or maintain the relevant [NAAQS], to legal CAA requirements when they are and contrary to the CAA to interpret mitigate adequately [ ] interstate pollutant transport initially approved and to ensure that SIP section 110 to establish a lower standard . . ., or to otherwise comply with any requirement provisions continue to meet CAA for calling a previously approved SIP of [the CAA], the [EPA] shall require the State to requirements over time, allowing for and demanding revisions to it than for revise the plan as necessary to correct such inadequacies.’’ Section 110(l) states that, in the potential amendments to the CAA, disapproving that SIP in the first place.’’ event a state submits a SIP revision, the EPA ‘‘shall changes in interpretation of the CAA by For purposes of section 110(l), the not approve a revision of a plan if the revision the EPA or courts or simply changed commenters claimed, the EPA ‘‘is would interfere with any applicable requirement facts. With respect to compliance with required’’ to rely on specific ‘‘data and concerning attainment and reasonable further progress . . . or any other applicable requirement the applicable legal requirements of the evidence’’ that a given SIP revision of [the CAA].’’ Section 110(k)(3) states that the EPA would interfere with CAA requirements ‘‘shall approve such submittal . . . if it meets all 337 See February 2013 proposal, 78 FR 12459 at and this requirement is thus imposed by the requirements of [the CAA].’’ 12483–88.

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CAA, the EPA does not interpret section of analysis is appropriate for a given SIP the decision provides no precedent for 110(k)(5) as setting a per se ‘‘higher’’ revision.339 Indeed, the decision stands this action because it was decided upon standard. Under section 110(l), the EPA for the proposition that the EPA does issues different from those at issue here. is likewise directed not to approve a SIP not necessarily have to develop an Commenters also argued that the court revision that is not consistent with legal attainment demonstration in order to did not reach an important issue requirements imposed by the CAA, evaluate the impacts of a SIP revision, because the petitioner had failed to including those relevant to SIP i.e. ‘‘prove’’ whether the revision will comment on it, i.e., the argument that provisions such as section 302(k). interfere with attainment, maintenance, the EPA had not defined the term Pursuant to section 110(l), the EPA reasonable further progress or any other ‘‘substantially inadequate’’ in the would not be authorized to approve a requirements of the CAA. Thus, the rulemaking.342 SIP revision that contradicts commenters’ argument that section Response: The EPA disagrees with the requirements of the CAA; pursuant to 110(k)(5) has to require a specific commenters on this point. The EPA of section 110(k)(5) the EPA is authorized technical analysis of impacts on course acknowledges that the court in to direct states to correct a SIP provision attainment and maintenance because US Magnesium did not address the full that it later determines does not meet section 110(l) does so is simply in error. range of issues related to the correct the requirements of the CAA. Third, the section 110(1) cases cited treatment of emissions during SSM The EPA also disagrees with the by the commenters did not involve SIP events in SIP provisions that were commenters’ characterization of the revisions in which states sought to raised in the Petition, e.g., the court did requirements of section 110(l) and their change existing SIP provisions so that not need to address the legal basis for arguments based on court decisions they would fail to meet the specific affirmative defense provisions in SIPs concerning section 110(l). Commenters CAA requirements at issue in this because of the nature of the SIP rely on the decision in Ky. Res Council action. For example, none of the cases provisions at issue in that case. v. EPA to support their argument that involved the EPA’s approval of a new However, the US Magnesium court section 110(l) requires the EPA to automatic exemption for emissions evaluated many of the same key disapprove a SIP revision only if it during SSM events. Had the state questions raised in this rulemaking and ‘‘would interfere’’ with a requirement of submitted a SIP revision that failed to reached decisions that are very relevant the CAA, not if it ‘‘could interfere’’ with meet applicable requirements of the to this action. 338 such requirements. From this CAA for SIP provisions, such as First, the US Magnesium court decision, the commenters argue that the changing existing SIP emission specifically upheld the EPA’s SIP call EPA is required to conduct a specific limitations so that they would thereafter action requiring the state to remove or technical analysis under section 110(l) include SSM exemptions, then the EPA revise a SIP provision that included an to determine the specific impacts of the would have had to disapprove them.340 automatic exemption for emissions from revision on attainment and maintenance The challenged rulemaking actions at sources during ‘‘upsets,’’ i.e., of the NAAQS and argue that by issue in the cases relied upon by the malfunctions. In doing so, the court was inference this must therefore also be commenters involved SIP revision fully aware of the reasons why the EPA required by section 110(k)(5). To the changes unrelated to the specific legal interprets the CAA to prohibit such extent that court decisions concerning requirements at issue in this action. exemptions, because they violate section 110(l) are relevant, these court Accordingly, the EPA’s evaluation of statutory requirements including section decisions do not support the those SIP revisions focused upon other commenters’ position. issues, such as whether the revision 302(k), section 110(a)(2)(A) and (C), and First, the EPA notes that the would factually result in emissions that other requirements related to attainment commenters mischaracterize section would interfere with attainment and and maintenance of the NAAQS. The 110(l) as requiring a particular form or maintenance of the NAAQS, that were court explained at length the EPA’s method of analysis to support approval relevant to the particular provisions at reasoning about why the SIP provisions or disapproval of a SIP revision. Section issue in those cases. were inconsistent with CAA 343 110(l) does not contain any such 12. Comments that the EPA is requirements for SIP provisions. explicit requirement or specifications. misinterpreting US Magnesium and that Second, the court specifically upheld The EPA interprets section 110(l) only the decision provides no precedent for the EPA’s SIP call action requiring the to require an analysis that is appropriate this action. state to revise its SIP to remove or revise for the particular SIP revision at issue, Comment: A number of industry another SIP provision that could be and that analysis can take different commenters argued that the EPA’s interpreted to give state personnel the forms or different levels of complexity reliance on the decision of the Tenth authority to determine unilaterally depending on the facts and Circuit in US Magnesium, LLP v. EPA is whether excess emissions from sources circumstances relevant to the SIP misplaced.341 According to the are a violation of the applicable revision. Like section 110(l), the EPA commenters, the EPA did not correctly emission limitation and thereby believes that section 110(k)(5) does not interpret the decision and is preclude any enforcement action by the specify a particular form of analysis misapplying it in acting upon the EPA or citizens. necessary to find a SIP provision Petition. The commenters asserted that Third, the court also upheld the EPA’s substantially inadequate. authority to issue a SIP call requiring a Second, the commenters 339 See 467 F.3d at 995 (rejecting claim that state ‘‘to clarify language in the SIP that mischaracterize the primary decision section 110(l) required a modeled attainment could be read to violate the CAA, when demonstration to prove that the SIP revision would that they rely upon. The court in Ky. Res meet applicable CAA requirements). a court has not yet interpreted the Council v. EPA expressly discussed the 340 The EPA notes that the one exception to this, language in that way.’’ Indeed, the court fact that section 110(l) does not specify of course, is the Agency’s recent approval of new opined that ‘‘in light of the potential precisely how any such analysis should SIP provisions in Texas that created an affirmative conflicts’’ between competing be conducted and deferred to the EPA’s defense for malfunctions. As discussed elsewhere interpretations of the SIP provision, in this document, however, the EPA has determined reasonable interpretation of what form that such provisions do not meet CAA requirements and is thus issuing a SIP call for those provisions. 342 Id., 690 F.3d 1167, n.3. 338 See 467 F.3d 986 (6th Cir. 2006). 341 See 690 F.3d 1157 (10th Cir. 2012). 343 Id., 690 F.3d at 1159–63.

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‘‘seeking revision of the SIP was not raised this point in comments. The whether an unrelated and not cross- prudent, not arbitrary or capricious.’’ 344 EPA does not necessarily agree that referenced provision of the SIP or of a Fourth, the court explicitly upheld ‘‘defining’’ the full contours of the term permit might potentially apply in such the EPA’s reasonable interpretation of is a necessary step for a SIP call, but a way as to correct the deficiency. As section 110(k)(5) to authorize a SIP call regardless of that fact the Agency did explained in section VII.A.3 of this when a state’s SIP provision is explain its interpretation of the term document, the EPA believes that all SIP substantially inadequate to meet ‘‘substantial inadequacy’’ with respect provisions must meet applicable applicable legal requirements, without to the SIP provisions at issue in the requirements of the CAA, including the making ‘‘specific factual findings’’ that February 2013 proposal, the SNPR and requirement that they apply the deficient provision resulted in a this final action. continuously to affected sources. In NAAQS violation. The EPA interpreted 13. Comments that EPA has to reviewing the specific SIP provisions the CAA to allow a SIP call if the evaluate a SIP ‘‘as a whole’’ to have the identified in the Petition, the EPA Agency ‘‘determined that aspects of the authority to issue a SIP call. determined that many of the provisions SIP undermine the fundamental Comment: Many state and industry include explicit automatic or integrity of the CAA’s SIP process and commenters argued that the EPA cannot discretionary exemptions for emissions structure, regardless of whether or not evaluate individual SIP provisions in during SSM events, whether as a the EPA could point to specific isolation and that the Agency is component of an emission limitation or instances where the SIP allowed required to evaluate the entire SIP and as a provision that operates to override violations of the NAAQS.’’ The US any related permit requirements in the otherwise applicable emission Magnesium court explicitly agreed that order to determine if a specific SIP limitation. Based on the EPA’s review of section 110(k)(5) authorizes issuance of provision is substantially inadequate. In these provisions, neither did they apply a SIP call ‘‘where the EPA determines particular, some commenters argued ‘‘continuously’’ as required by section that a SIP is no longer consistent with that the EPA was wrong to focus upon 302(k) nor did they include cross- the EPA’s understanding of the the exemptions in SIP emission references to any other limitations that CAA.’’ 345 limitations for emissions during SSM applied during such exempt periods to Fifth, the court rejected claims that events without considering whether potentially provide continuous the EPA was requiring states to comply some other requirement of the SIP or of limitations. To the extent that the SIP of with the SSM Policy guidance rather a permit might operate to override or a state contained any other requirements than the CAA requirements, and the otherwise modify the exemptions. Many that applied during such periods, that court noted that the Agency had of the commenters asserted that other fact was not plain on the face of the SIP undertaken notice-and-comment ‘‘general duty’’ clause requirements, provision. If the EPA was unable to rulemaking to evaluate whether the SIP elsewhere in other SIP provisions or in ascertain what, if anything, applied provisions at issue were consistent with permits for individual sources, make the during these explicitly exempt periods, CAA requirements.346 SSM exemptions in SIP emission then the Agency concludes that Sixth, the court rejected the claim that limitations valid under the CAA.349 regulated entities, members of and the the EPA was interpreting the These other requirements were often public, and the courts will have the requirements of the CAA incorrectly general duty-type standards that require same problem. The EPA has authority because the EPA is in the process of sources to minimize emissions, to under section 110(k)(5) to issue a SIP bringing its own NSPS and NESHAP exercise good engineering judgment or call requiring a state to clarify a SIP regulations into line with CAA not to cause a violation of the NAAQS. provision that is ambiguous or unclear requirements for emission limitations, The implication of the commenters’ such that the provision can lead to in accordance with the Sierra Club v. arguments is that such general-duty misunderstanding and thereby interfere 350 Johnson decision.347 The court noted requirements legitimize an SSM with effective enforcement. that the EPA is now correcting SSM exemption in a SIP emission To the extent that an affected state exemptions in its own regulations, and limitation—even if they are not believes that the EPA has overlooked thus its prior interpretation of the CAA, explicitly a component of the SIP another valid provision of the SIP that rejected by the court in Sierra Club v. provision, if they are not incorporated would cure the substantial inadequacy Johnson, did not make the SIP call to by reference in the SIP provision and if that the Agency has identified in this Utah arbitrary and capricious.348 they are not adequate to meet the action, the state may seek to correct the On these and many other issues, the applicable substantive requirements for deficient SIP provision by properly EPA believes that the court’s decision in that type of SIP provision. revising it to remove the impermissible US Magnesium provides an important Response: The EPA disagrees with the exemption or affirmative defense and and correct precedent for the Agency’s basic premise of the commenters that replacing it with the requirements of the interpretation of the CAA in this action. the EPA cannot issue a SIP call directing other SIP provision or by including a The commenters’ apparent disagreement a state to correct a facially deficient SIP clear cross-reference that clarifies the with the court does not mean that the provision without first determining applicability of such provision as a decision is not relevant to this action. component of the specific emission The commenters specifically argued that 349 The EPA notes that other commenters on the limitation at issue. The state should the US Magnesium court did not reach February 2013 proposal made similar arguments make this revision in such a way that the issue of whether the EPA had with respect to affirmative defense provisions in the SIP emission limitation is clear on their SIPs, asserting that other SIP provisions or its face as to what the affected sources ‘‘defined’’ the term ‘‘substantial terms in permits provided additional criteria that inadequacy’’ in the challenged would have made the affirmative defense are required to do during all modes of rulemaking because the petitioner had provisions at issue consistent with the EPA’s operation. The emission limitation interpretation of the CAA in the 1999 SSM should apply continuously, and what is Guidance. See, e.g., Comment from Virginia 344 Id., 690 F.3d at 1170. required by the emission limitation Department of Environmental Quality at 1–2, in the 345 Id., 690 F.3d at 1168. rulemaking docket at EPA–HQ–OAR–2012–0322– under any mode of operation should be 346 Id., 690 F.3d at 1168. 0613. Because the EPA no longer interprets the 347 Id., 690 F.3d at 1169. CAA to allow any affirmative defense provisions, 350 See US Magnesium, LLC v. EPA, 690 F.3d 348 Id., 690 F.3d at 1170. these comments are not germane. 1157, 1169 (10th Cir. 2012).

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readily ascertainable by the regulated interpretations of the CAA as they apply have addressed any issues concerning entities, the regulators and the public. to the specific SIP provisions at issue in deficient SIP provisions applicable to The EPA emphasizes, however, that this action. Thus, the EPA is requiring emissions during SSM events was ‘‘in each revised SIP emission limitation the affected states to comply with the the context of its review and approval must meet the substantive requirements requirements of the CAA, not with the of [maintenance] plans.’’ Because the applicable to that type of provision (e.g., SSM Policy guidance itself.351 EPA has been approving maintenance impose RACM/RACT-level controls on The EPA also disagrees with plans for areas in states subject to this sources located in nonattainment areas) commenters that in order to rely on its SIP call action, the commenters and must be legally and practically interpretation of the CAA in the SSM believed, this ‘‘is evidence that the enforceable (e.g., have sufficient Policy, the EPA must first issue Agency has not viewed SSM-related recordkeeping, reporting and regulatory provisions applicable to SIP emissions as a threat to attainment or monitoring requirements). The revised provisions. There is no such general maintenance of the NAAQS.’’ In SIP emission limitation must be obligation for the EPA to codify its essence, these commenters argued that consistent with all applicable CAA interpretations of the CAA in regulatory the EPA’s redesignation of any area in requirements. text. Unless Congress has specifically any of the states at issue in this 14. Comments that the EPA directed the EPA to promulgate rulemaking indicates that the SIPs of inappropriately is ‘‘using guidance’’ as a regulations for a particular purpose, the these states fully meet all CAA basis for the SIP call action. EPA has authority and discretion to requirements and that there are no Comment: State and industry promulgate such regulations as it deems deficiencies whatsoever in the SIPs of commenters asserted that the EPA is necessary or helpful in accordance with these states. relying on guidance as the basis for its authority under section 301. With Response: The EPA disagrees with the issuing this SIP call action and argued respect to issues concerning proper commenters’ premise that the Agency’s that the EPA cannot issue a SIP call treatment of excess emissions during approval of redesignation requests and based on guidance. The commenters SSM events in SIP provisions, the EPA maintenance plans for certain argued that the EPA guidance provided has historically proceeded by issuance nonattainment areas, notwithstanding in the SSM Policy is not binding and of guidance documents. In this action, the presence of impermissible that states thus have the flexibility to the EPA is undergoing notice-and- provisions related to emissions during develop SIP provisions that are not in comment rulemaking to update and SSM events that may have been present conformance with EPA guidance. Some revise its guidance and to apply that in the SIP for those areas, is evidence commenters claimed that if the EPA guidance to specific existing SIP that the EPA does not view SSM-related wishes to make the interpretations of provisions. Thus, the EPA is not emissions as a threat to attainment or the CAA in its SSM Policy binding upon required to promulgate specific maintenance of the NAAQS. Contrary to states, then it must do so through a implementing regulations as a the theory of the commenters, the EPA’s notice-and-comment rulemaking and precondition to making a finding of redesignation of an area to attainment must codify those requirements in substantial inadequacy to address does not mean that the SIP for the state binding regulations in the CFR. The existing deficient SIP provisions. in question fully meets each and every commenters argued that states should 15. Comments that the EPA’s requirement of the CAA. not be subject to a SIP call for existing redesignation and approval of a The CAA sets forth the general criteria provisions in their SIPs on the basis that maintenance plan for an area in a state for redesignation of an area from they do not conform to guidance in the with a SIP that has provisions at issue nonattainment to attainment in section SSM Policy. Some commenters in the SIP call establishes that all 107(d)(3)(E). These criteria include a acknowledged that the EPA is providing provisions in the SIP meet CAA determination by the EPA that the area notice and comment on its SSM Policy requirements. has attained the relevant standard through this action, but still they Comment: Commenters argued that (section 107(d)(3)(E)(i)) and that the contended that the EPA’s interpretation the ‘‘EPA’s allegations that SSM EPA has fully approved the applicable of the CAA is not binding upon states provisions could threaten the NAAQS is implementation plan for the area for unless the Agency codifies its updated contradicted by’’ the fact that the ‘‘EPA purposes of redesignation (section SSM Policy in regulations in the CFR. has consistently approved re- 107(d)(3)(E)(ii) and (v)). The EPA must Response: The EPA disagrees with designation requests and attainment and also determine that the improvement in arguments that the Agency has acted air quality in the area is due to inappropriately by relying on its maintenance plans, notwithstanding reductions that are permanent and interpretations of the CAA set forth in SSM provisions.’’ According to these enforceable (section 107(d)(3)(E)(iii)) the SSM Policy in issuing this SIP call. commenters, ‘‘[t]he fact that EPA has and that the EPA has fully approved a As explained in the February 2013 already approved numerous re- maintenance plan for the area under proposal, the SSM Policy is merely designation requests . . . indicates that section 175A (section 107(d)(3)(E)(iv)). guidance. It is correct that guidance EPA has already (and in many cases, For purposes of redesignation, the documents are nonbinding. However, very recently) admitted that the [State EPA has long held that SIP requirements the guidance provides the EPA’s SIPs are] fully approved, sufficient to that are not linked with a particular recommendations concerning how best achieve the NAAQS, and fully nonattainment area’s designation and to interpret the statutory requirements enforceable.’’ The commenters argued classification, including certain section of the CAA that are binding. Moreover, that the appropriate time for the EPA to 110 requirements, are not ‘‘applicable’’ the EPA’s interpretation of the CAA in 351 for purposes of evaluating compliance the SSM Policy can become binding The EPA’s reliance on interpretations of the CAA in the SSM Policy through notice-and- with the specific redesignation criteria once the Agency adopts and applies that comment rulemakings has previously been upheld in CAA sections 107(d)(3)(E)(ii) and interpretation through notice-and- by several courts. See, e.g., US Magnesium, LLC v. (v).352 The EPA maintains this comment rulemaking. The EPA is EPA, 690 F.3d 1157, 1168 (10th Cir. 2012) (upholding the EPA’s SIP call to Utah for existing issuing this SIP call action through SIP provisions); Mich. Dep’t of Envtl. Quality v. 352 See, e.g., ‘‘Approval and Promulgation of notice-and-comment rulemaking and Browner, 230 F.3d 181 (6th Cir. 2000) (upholding Implementation Plans and Designation of Areas for has specifically taken comment on its the EPA’s disapproval of a SIP submission). Air Quality Planning Purposes; State of Arizona;

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interpretation because these address existing deficiencies in a state’s identified by EPA, was the state’s requirements remain applicable after an SIP, and courts have agreed that the inclusion in the submission of new area is redesignated to attainment. For at EPA retains the authority to issue a SIP provisions not previously in the SIP that least the past 15 years, the EPA has call to a state pursuant to CAA section would have provided blanket applied this interpretation with respect 110(k)(5) even after redesignation of a exemptions from compliance with to requirements to which a state will nonattainment area in that state.357 The emission standards during SSM events. continue to be subject after the area is EPA recently addressed this issue in the Those SSM exemptions were not in the redesignated.353 Courts reviewing the context of redesignating the Ohio previously approved SIP, and the EPA EPA’s interpretation of the term portion of the Huntington-Ashland declined to approve them in connection ‘‘applicable’’ in section 107(d)(3) in the (OH–WV–KY) nonattainment area to with the redesignation request because 358 context of requirements applicable for attainment for the PM2.5 NAAQS. In such provisions are inconsistent with redesignation have generally agreed response to comments challenging the CAA requirements. In most with the Agency.354 proposed redesignation due to the redesignation actions, states have not The EPA therefore approves presence of certain SSM provisions in sought to create new SIP provisions that redesignation requests in many the Ohio SIP, the EPA concluded that are inconsistent with CAA requirements instances without passing judgment on the provisions at issue did not provide as part of their redesignation requests or every part of a state’s existing SIP, if it a basis for disapproving the maintenance plans. finds those parts of the SIP are not redesignation request.359 In so Finally, the EPA disagrees with ‘‘applicable’’ for purposes of section concluding, the EPA noted that the SSM commenters that approval of a 107(d)(3). For example, the EPA provisions and related SIP limitations at maintenance plan for any area has the recently approved Arizona’s request to issue in that state were already result of precluding the Agency from redesignate the Phoenix-Mesa 1997 8- approved into the SIP and thus later finding that certain SIP provisions hour ozone nonattainment area and its ‘‘permanent and enforceable’’ for the are substantially inadequate under the accompanying maintenance plan, while purposes of meeting section CAA on the basis that those provisions recognizing that Arizona’s SIP may 107(d)(3)(E)(iii) and that the Agency has may interfere with attainment or contain affirmative defense provisions other statutory mechanisms for maintenance of the NAAQS or fail to that are not consistent with CAA addressing any problems associated meet any other legal requirement of the requirements.355 In that case, the EPA with the SSM provisions.360 The EPA CAA. The approval of a state’s explicitly noted that approval of the emphasizes that the redesignation of redesignation request and maintenance redesignation of the Phoenix-Mesa areas to attainment does not relieve plan for a particular NAAQS is not the nonattainment area did not relieve states of the responsibility to remove conclusion of the state’s and the EPA’s Arizona or Maricopa County of its legally deficient SIP provisions either responsibilities under the CAA but obligation to remove the affirmative independently or pursuant to a SIP call. rather is one step in the process defense provisions from the SIP, if the To the contrary, the EPA maintains that Congress established for identifying and EPA was to take later action to require it may determine that deficient addressing the nation’s air quality correction of the Arizona SIP with provisions such as exemptions or problems on a continuing basis. The respect to those provisions.356 affirmative defense provisions redesignation process allows states with The EPA also disagrees with applicable to SSM events are contrary to nonattainment areas that have attained commenters to the extent they suggest CAA requirements and take action to the relevant NAAQS to provide the EPA that the Agency must use the require correction of those provisions with a demonstration of the control redesignation process to evaluate even after an area is redesignated to measures that will keep the area in whether any existing SIP provisions are attainment for a specific NAAQS. This attainment for 10 years, with the caveat legally deficient. The EPA has other interpretation is consistent with prior that the suite of measures may be statutory mechanisms through which to redesignation actions. revisited if necessary and must be In some cases, the EPA has stated that revisited with a second maintenance Redesignation of the Phoenix-Mesa Nonattainment the presence of illegal SSM provisions plan for the 10 years following the Area to Attainment for the 1997 8-Hour Ozone does constitute grounds for denying a initial 10-year maintenance period. Standard; Proposed rule,’’ 79 FR 16734 at 16739 Moreover, it is clear from the n.22 (March 26, 2014). redesignation request. For example, the 353 See, e.g., 73 FR 22307 at 22312–13 (April 25, EPA issued a proposed disapproval of structure of section 175A maintenance 2008) (proposed redesignation of San Joaquin Utah’s redesignation requests for Salt plans that Congress understood that the Valley; the EPA concluded that section 110(a)(2)(D) Lake County, Utah County and Ogden EPA’s approval of a maintenance plan is transport requirements are not applicable under 361 not a guarantee of future attainment air section 110(d)(3)(E)(v) because they ‘‘continue to City PM10 nonattainment areas. apply to a state regardless of the designation of any However, the specific basis for the quality in a nonattainment area. Rather, one particular area in the state’’); 62 FR 24826 at proposed disapproval in that action, Congress foresaw that violations of the 24829–30 (May 7, 1997) (redesignation of Reading, which was one of many SIP deficiencies NAAQS could occur following a Pennsylvania, Area; the EPA concluded that the redesignation of an area to attainment additional controls required by section 184 were not ‘‘applicable’’ for purposes of section 357 See Southwestern Pennsylvania Growth and therefore required section 175A 107(d)(3)(E) because ‘‘they remain in force Alliance v. EPA, 114 F.3d 984 (6th Cir. 1998) maintenance plans to include regardless of the area’s redesignation status’’). (Redesignation of Cleveland-Akron-Lorain area contingency measures that a state could 354 See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. determined valid even though the Agency implement quickly in response to a 2004); Wall v. EPA, 265 F.3d 426, 438 (6th Cir. subsequently proposed a SIP call to require Ohio violation of a standard. The notion that 2001). But see Sierra Club v. EPA, Nos. 12–3169, and other states to revise their SIPs to mitigate 12–3182, 12–3420 (6th Cir. Mar. 18, 2015), petition ozone transport to other states). the EPA’s approval of a maintenance for reh’g en banc filed. 358 See 77 FR 76883 (December 31, 2012). plan must be the last word with regard 355 79 FR 55645 (September 17, 2014). 359 Id. at 76891–92. to the contents of a state’s SIP simply 356 Id. at 55648. The EPA notes that it has 360 The EPA notes that the provisions at issue in does not comport with the framework included the deficient SIP provisions that include the redesignation action are included in this SIP Congress established in the CAA for the affirmative defenses in this action, thereby call, thus illustrating that the Agency can address illustrating that it can take action to address a SIP these deficient provisions in a context other than redesignations. The EPA has continuing deficiency separately from the redesignation action, a redesignation request. authority and responsibility to assure where appropriate. 361 74 FR 62717 (December 1, 2009). that a state’s SIP meets CAA

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requirements, even after approving a The commenters concluded that the meet the statutory requirements. As the redesignation request for a particular EPA cannot prescribe the specific terms court in Virginia recognized, Congress NAAQS. of SIP provisions applicable to SSM gave states discretion in choosing the In conclusion, the EPA is not required events absent evidence that the ‘‘mix of controls’’ necessary to attain to reevaluate the validity of all provisions undermine the NAAQS or and maintain the NAAQS. See also previously approved SIP provisions as are otherwise inconsistent with the Act. Train v. NRDC, 421 U.S. 60, 79, 95 part of a redesignation. The existence of Commenters claimed that states are (1975). The U.S. Supreme Court first provisions such as impermissible provided substantial discretion under recognized this program of cooperative exemptions and affirmative defenses the Act in how to develop SIPs and that federalism in Train, and the Court applicable during SSM events in an the EPA’s SIP call action is inconsistent stated: approved SIP does not preclude the with this long-recognized discretion The Act gives the Agency no authority to EPA’s determination that emission because it limits the states to one question the wisdom of a State’s choices of reductions that have provided for option: ‘‘Eliminate any consideration of emissions limitations if they are part of a attainment and that will provide for unavoidable emissions during planned plan which satisfies the standards of maintenance of a NAAQS in a startups and shutdowns and adopt only § 110(a)(2) . . . [S]o long as the ultimate nonattainment area are ‘‘permanent and an extremely limited affirmative defense effect of a State’s choice of emissions enforceable,’’ as those terms are meant for unavoidable emissions during a limitations is compliance with the national in section 107(d)(3), or that the state has malfunction.’’ The commenters claimed standards, the State is at liberty to adopt whatever mix of emissions limitations it met all applicable requirements under that other options available to states deems best suited to its particular situation. section 110 and part D relevant for the include ‘‘justifying existing provisions, purposes of redesignation. Finally, if the adopting alternative numeric emission The issue in that case concerned EPA separately determines that the limitations, work practice standards, whether changes to requirements that state’s SIP is deficient after the additional operational limitations, or would occur before the area was redesignation of the area to attainment, revising existing numeric emission required to attain the NAAQS were the Agency can issue a SIP call limitations and/or their associated variances that should be addressed requiring a corrective SIP revision. averaging times to create a sufficient pursuant to the provision governing SIP Redesignation of areas to attainment in compliance margin for unavoidable revisions or were ‘‘postponements’’ that no way relieves states of their SSM emissions.’’ must be addressed under section 110(f) continuing responsibilities to remove The commenters further asserted that of the CAA of 1970, which contained deficient SIP provisions from their SIPs the EPA’s February 2013 proposal prescriptive criteria. The court in the event of a SIP call. contained inconsistent statements about concluded that the EPA reasonably 16. Comments that in issuing a SIP how the Agency expects states to interpreted section 110(f) not to restrict call the EPA is ‘‘dictating’’ to states how respond to the SIP call. For example, a state’s choice of the mix of control to regulate their sources and taking according to one commenter, the EPA measures needed to attain the NAAQS away their discretion to adopt states in one place that startup and and that revisions to SIPs that would appropriate control measures of their shutdown emissions above otherwise not impact attainment of the NAAQS by own choosing in developing a SIP. applicable limits must be considered a the attainment date were not subject to Comment: Several commenters violation yet elsewhere discusses the the limits of section 110(f). While the claimed that the EPA’s SIP call action fact that states can adopt alternative court recognized that states had removes discretion that states would emission limitations for startup and discretion in determining the otherwise have under the CAA. shutdown. The commenter also asserted appropriate emissions limitations, it Commenters claimed that the action has that the EPA recommended that states also recognized that the SIP must meet the effect of unlawfully directing states could elect to adopt the an approach to the standards of section 110(a)(2). In to impose a particular control measure emissions during startup and shutdown Virginia, the issue was whether at the by requiring the state to regulate all like that of the EPA’s recent MATS rule request of the Ozone Transport periods of operation for any source it but that the EPA then failed to explain Commission the EPA could mandate chooses to regulate. Because the that the MATS rule contains that states adopt specific motor vehicle alternative emission limitations and ‘‘exemptions’’ for emissions during emission standards more stringent than work practice standards that the EPA startup and shutdown that apply so long those mandated by CAA sections 177 asserts are necessary under the statutory as the source meets the general work and 202 for regulating emissions from definition of ‘‘emissions limitation’’ are practice standards in the rule. This motor vehicles. not real options in some cases, the commenter claimed that the EPA’s own As the EPA has consistently commenters claimed, the EPA’s approach is inconsistent with explained in its SSM Policy, the Agency proposal is the type of mandate that the statements in the February 2013 does not believe that exemptions from court in the Virginia decision found to proposal that states should treat all compliance with any applicable SIP have violated the CAA.362 Other startups and shutdowns as ‘‘normal emission limitation requirements during commenters also cited to the Virginia operations.’’ periods of SSM are consistent with the decision, as well as citing to the U.S. Response: The EPA disagrees with the obligation of states in SIPs, including Supreme Court’s decision in Train v. commenter’s claims that the SIP call the requirements to demonstrate that NRDC, in which the Court held that ‘‘so violates the structure of ‘‘cooperative plans will attain and maintain the long as the ultimate effect of a State’s federalism’’ that Congress enacted for NAAQS, protect PSD increments and choice of emissions limitations is the SIP program in the CAA. Under this improve visibility. If a source is free compliance with the national standards, structure, the EPA establishes NAAQS from any obligation during periods of the State is at liberty to adopt whatever and reviews state plans to ensure that SSM, there is nothing restraining those mix of emissions limitations it deems they meet the requirements of the CAA. emissions and such emissions could best suited to its particular situation.363 States take primary responsibility for cause or contribute to an exceedance or developing plans to attain and maintain violation of the NAAQS. Moreover, 362 108 F.3d at 1410. the NAAQS, but the EPA is required to neither the state nor citizens would 363 421 U.S. 60, 79 (1975). step in if states fail to adopt plans that have authority to take enforcement

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action regarding such emissions. Also, and maintenance of a NAAQS with a and maintain the NAAQS or to achieve even if historically such excess short averaging period (e.g., how a 30- emission reductions, despite SSM emissions have not caused or day averaging period for emissions can exemptions in their SIP provisions, the contributed to an exceedance or ensure attainment of an 8-hour EPA’s concerns with respect to SSM violation, this would not mean that they NAAQS). One option noted by the exemptions are unsupported and could not do so at some time in the commenter, ‘‘justifying existing unwarranted. Based on the premise that future. Finally, given that there are provisions,’’ does not seem promising, SSM exemptions are not inconsistent many locations where air quality is not based on the evaluation that the EPA with CAA requirements applicable to monitored such that a NAAQS has performed as a basis for this SIP call areas that are attaining the NAAQS, the exceedance or violation could be action. If by justification, the commenter commenters claimed that such observed, the inability to demonstrate simply means that the state may seek to provisions cannot be substantially that such excess emissions have not justify continuing to have an exemption inadequate to meet CAA requirements. caused or contributed to an exceedance for emissions during SSM events, the Response: The EPA disagrees with the or violation would not be proof that EPA has already determined that this is commenters’ view that, so long as the they have not. Thus, the EPA has long impermissible under CAA requirements. provisions apply in areas designated held that exemptions from emission The EPA regrets any confusion that attainment, the CAA allows SIP limitations for emissions during SSM may have resulted from its discussion in provisions with exemptions for events are not consistent with CAA the preamble to the February 2013 emissions during SSM events. The requirements, including the obligation proposal. The EPA’s statement that commenters based their argument on to attain and maintain the NAAQS and startup and shutdown emissions above the incorrect premise that SIP the requirement to ensure adequate otherwise applicable limitations must provisions applicable to sources located enforcement authority. be considered a violation is simply in attainment areas do not also have to another way of stating that states cannot meet fundamental CAA requirements Despite claims by the commenter to exempt sources from complying with such as sections 110(a)(2)(A), the contrary, the EPA has not mandated emissions standards during periods of 110(a)(2)(C) and 302(k). Evidently, the the specific means by which states startup and shutdown. This is not commenters were only thinking should regulate emissions from sources inconsistent with the EPA’s statement narrowly of the statutory requirements during startup and shutdown events. that states can develop alternative applicable to SIP provisions in SIPs for Requiring states to ensure that periods requirements for periods of startup and purposes of part D attainment plans, of startup and shutdown are regulated shutdown where emission limitations which are by design intended to address consistent with CAA requirements is that apply during steady-state emissions from sources located in not tantamount to prescribing the operations could not be feasibly met. In nonattainment areas and to achieve specific means of control that the state such a case, startup and shutdown attainment of the NAAQS in such areas. must adopt. By the SIP call, the EPA has emissions would not be exempt from The EPA does not interpret the simply explained the statutory compliance but rather would be subject fundamental statutory requirements boundaries to the states for SIP to a different, but enforceable, standard. applicable to SIP provisions (e.g., that provisions, and the next step is for the Then, only emissions that exceed such they impose continuous emission states to revise their SIPs consistent alternative emission limitations would limitations) to apply exclusively in with those boundaries. States remain constitute violations. nonattainment areas; these requirements free to choose the ‘‘mix of controls,’’ so 17. Comments that because areas are are relevant to SIP provisions in general. long as the resulting SIP revisions meet in attainment of the NAAQS, SIP The statutory requirements applicable CAA requirements. The EPA agrees with provisions such as automatic to SIPs are not limited to areas the commenter who notes several exemptions for excess emissions during designated nonattainment. To the options available to the states in SSM events are rendered valid under contrary, section 107(a) imposes the responding to the SIP call. The the CAA. responsibility on each state to attain and commenter stated that there are various Comment: Commenters argued that maintain the NAAQS ‘‘within the entire options available to states, such as SSM exemptions should be permissible geographic areas comprising such ‘‘adopting alternative numeric emission in SIP provisions applicable to areas State.’’ The requirement to maintain the limitations, work practice standards, designated attainment because, they NAAQS in section 107(a) clearly applies additional operational limitations, or asserted, there is evidence that the to areas that are designated attainment, revising existing numeric emission exemptions do not result in emissions including those that may previously limitations and/or their associated that cause violations of the NAAQS. To have been designated nonattainment. averaging times to create a sufficient support this contention, the commenters Similarly, section 110(a)(1) explicitly compliance margin for unavoidable observed that a number of states with requires states to have SIPs with SSM emissions.’’ However, the state SSM exemptions in SIP provisions at provisions that provide for the must demonstrate how that mix of issue in this SIP call are currently implementation, maintenance and controls for all periods of operation will designated attainment in all areas for enforcement of the NAAQS. By ensure attainment and maintenance of one or all NAAQS and also that some inclusion of ‘‘maintenance,’’ section the NAAQS or meet other required goals of these states had areas that previously 110(a)(1) clearly encompasses areas of the CAA relevant to the SIP were designated nonattainment for a designated attainment as well as provision, such as visibility protection. NAAQS but subsequently have come nonattainment. The SIPs that states For example, if a state chooses to into attainment. Thus, the commenters develop must also meet a number of modify averaging times in an emission asserted, the SIP provisions that the more specific requirements set forth in limitation to account for higher EPA identified as deficient due to SSM section 110(a)(2) and other sections of emissions during startup and shutdown, exemptions must instead be consistent the CAA relevant to particular air the state would need to consider and with CAA requirements because these quality issues (e.g., the requirements for demonstrate to the EPA how the states are in attainment. The attainment plans for the different variability of emissions over that commenters claimed that because these NAAQS set out in more detail in part averaging period might affect attainment areas have shown they are able to attain D). Among those basic requirements that

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states must meet in SIPS are section stated that SIP provisions with SSM comply with any requirement of [the 110(a)(2)(C), requiring a permitting exemptions are inconsistent with CAA].’’ program applicable to sources in areas requirements of the CAA to provide 18. Comments that the EPA’s initial designated attainment, and section both for attainment and maintenance of approval of these deficient provisions, 110(a)(2)(D)(i)(II), requiring SIP the NAAQS, i.e., inconsistent with or subsequent indirect approval of them provisions to prevent interference with requirements applicable to both through action on other SIP protection of air quality in areas nonattainment and attainment areas.364 submissions, establishes that these designated attainment in other states. Since at least 1999, the EPA’s SSM provisions meet CAA requirements. Part C, in turn, imposes additional Policy has clearly stated that SIP Comment: A number of commenters requirements on states with respect to provisions with SSM exemptions are argued that because the EPA initially prevention of significant deterioration of inconsistent with protection of PSD approved the SIP provisions at issue in air quality in areas designated increments in attainment areas.365 The this rulemaking, this establishes that attainment. Although the EPA agrees EPA provided its full statutory analysis these provisions meet CAA that the CAA distinguishes between, with respect to SSM exemptions and requirements. Other commenters argued and imposes different requirements CAA requirements applicable to areas that subsequent actions on other SIP upon, areas designated attainment designated attainment in the submissions in effect override the fact that the SIP provisions at issue are versus nonattainment, there is no background memorandum legally deficient. For example, an indication that the statute distinguishes accompanying the February 2013 industry commenter asserted that there between the basic requirements for proposal.366 emission limitations in these areas, have been ‘‘dozens of instances where including that they be continuous. Finally, the EPA disagrees with the EPA has reviewed Alabama SIP revision Section 110(a)(2)(A) requires states to commenters’ theory that, absent proof submittals’’ and the EPA has never include ‘‘emission limitations’’ in their that the SIP deficiency has caused or indicated ‘‘that it believed these rules to SIPs ‘‘as may be necessary or will cause a specific violation of the be inconsistent with the CAA.’’ Other appropriate to meet applicable NAAQS, the Agency lacks authority to state commenters made similar requirements of’’ the CAA. The EPA issue a SIP call for SIP provisions that arguments suggesting that the EPA’s notes that the commenters have raised apply only in areas attaining the original approval of these provisions, other arguments concerning the precise NAAQS. This argument is inconsistent and the fact that the EPA has not meeting of ‘‘necessary or appropriate’’ with the plain language of section previously taken action to require states (see section VII.A.3 of this document), 110(k)(5). Section 110(k)(5) authorizes to revise them, indicates that they are but in this context the Agency believes the EPA to issue a SIP call whenever the not deficient. that because states are required to have SIP is substantially inadequate to attain Response: The EPA disagrees with SIPs that provide for ‘‘maintenance’’ of or maintain the NAAQS, to mitigate these commenters. The fact that the EPA the NAAQS it is clear that the general interstate transport or to comply with once approved a SIP provision does not requirements for emission limitations in any other CAA requirement. The mean that the SIP provision is per se SIPs are not limited to areas designated explicit reference to a SIP’s being consistent with the CAA, or consistent nonattainment. Section 110(a)(2)(A) inadequate to maintain the NAAQS with the CAA notwithstanding any later contains no language distinguishing clearly indicates that the EPA has legal or factual developments. This is between emission limitations applicable authority to make a finding of demonstrated by the very existence of in attainment areas and emission substantial inadequacy for a SIP the SIP call provision in section limitations applicable in nonattainment provision applicable to attainment 110(k)(5), whereby the EPA may find areas. Significantly, the definition of the areas, not only for a SIP provision that an ‘‘applicable implementation term ‘‘emission limitation’’ in section applicable to nonattainment areas. In plan for any area is substantially 302(k) likewise makes no distinction addition, section 110(k)(5) explicitly inadequate to attain or maintain the between requirements applicable to authorizes the EPA to issue a SIP call relevant [NAAQS] . . . or to otherwise sources in attainment areas versus not only in instances related to a comply with any requirement of’’ the nonattainment areas. The EPA sees no specific violation of the NAAQS but CAA. This SIP call authority expressly authorizes the EPA to direct a state to basis for interpreting the term ‘‘emission rather whenever the Agency determines revise its SIP to remedy any substantial limitation’’ differently for attainment that a SIP provision is inadequate to inadequacy, including failures to areas and nonattainment areas, with meet requirements related to attainment comply with legal requirements of the respect to whether such emission and maintenance of the NAAQS or any CAA. By definition, when the EPA limitations must impose continuous other applicable requirement of the Act, promulgates a SIP call, this means that controls on the affected sources. Most including when the provision is importantly, section 110(a)(2)(A) does the Agency has previously approved the inadequate to meet the fundamental provision into the SIP, rightly or explicitly require that any such legal requirements applicable to SIP emission limitations must ‘‘meet the wrongly. The SIP call provision would provisions. Were the EPA’s authority applicable requirements’’ of the CAA, be meaningless if a SIP provision were limited to issuing a SIP call only in the and the EPA interprets this to include considered perpetually consistent with event an area was violating the NAAQS, the requirement that emission CAA requirements after it was originally section 110(k)(5) would not explicitly limitations apply continuously, i.e., approved, and merely because of that contain no exemptions for emissions include requirements related to prior approval as commenters suggest. during SSM events. This requirement ‘‘maintenance’’ and would not explicitly In the February 2013 proposal, the EPA applies equally in all areas, including include the statement ‘‘otherwise acknowledged its own responsibility in attainment and nonattainment areas. approving provisions that were The EPA’s interpretation of the CAA 364 See 1982 SSM Guidance, Attachment at 1. inconsistent with CAA requirements. in the SSM Policy has long extended to 365 See 1999 SSM Guidance at 2. The EPA also disagrees with the 366 See Memorandum, ‘‘Statutory, Regulatory, and argument that the Agency’s action on SIP provisions applicable to attainment Policy Context for this Rulemaking,’’ February 4, areas as well as to nonattainment areas. 2013, in the rulemaking docket at EPA–HQ–OAR– other intervening SIP submissions from Since at least 1982, the SSM Policy has 2012–0322–0029. a state over the years since the approval

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of the original deficient SIP provision in shutdown; it refers only to ‘‘downtime, events; it focuses on issues of some way negates the original upsets, decreases in control efficiencies, noncompliance with applicable deficiency. The industry commenter and other deficiencies in emission emission limitations. The fact that the pointed to ‘‘dozens of instances where estimates,’’ and once defined the term 1992 guidance document did not intend EPA reviewed Alabama SIP revision ‘‘rule effectiveness’’ is not subsequently for ‘‘rule effectiveness’’ to encompass submittals’’ as times when the EPA used within 40 CFR part 51 in any way SIP-exempted emissions during startup should have addressed any SSM-related that would indicate that it is meant to and shutdown, and that the 2005 deficient SIP provisions. However, the capture the effect of exemptions during guidance also did not, is confirmed by EPA’s approval of other SIP revisions startup and shutdown. The EPA a statement in a more recent draft EPA does not necessarily entail guidance on demonstrating attainment guidance document: reexamination and reapproval of every of PM2.5 and regional haze goals cited by In addition to estimating the actual provision in the SIP. The EPA often the commenter also does not address emissions during startup/shutdown periods, only examines the specific provision the rule effectiveness or excess emissions another approach to estimate startup/ state seeks to revise in the SIP during startup and shutdown. The terms shutdown emissions is to adjust control submission without reexamining all ‘‘startup’’ and ‘‘shutdown’’ do not parameters via the emissions calculation other provisions in the SIP. The EPA appear in the attainment demonstration parameters of rule effectiveness or primary sometimes broadens its review if guidance. The EPA did issue a different capture efficiency. Using these parameters commenters bring other concerns to the guidance document in 1992 on rule for startup/shutdown adjustments is not their Agency’s attention during the effectiveness,368 but that document original purpose, but can be a simple way to rulemaking process that are relevant to focused only on the preparation of increase the emissions and still have a record of the routine versus startup/shutdown the SIP submission under evaluation. emissions inventories for 1990, not on portions of the emissions. (Emphasis 19. Comments that exemptions for demonstrating attainment of NAAQS or added.) 370 excess emissions during exempt SSM regional haze goals. Moreover, the 1992 events would not distort emissions guidance document addressed ways of Furthermore, as explained in the inventories, SIP control measure estimating actual 1990 emissions in proposals for this action and in this development or modeling, because the light of the likelihood of a degree of document, the EPA believes that it is a EPA’s regulations and guidance source noncompliance with applicable fundamental requirement of the CAA concerning ‘‘rule effectiveness’’ emission limitations, not on the that SIP emission limitations be adequately account for these emissions, emissions that would be permissible in continuous, which therefore precludes and therefore the proposed SIP calls are light of the absence of a continuous exemptions for excess emissions during not needed or justified. emission limitation applicable during startup and shutdown. At bottom, Comment: One commenter argued startup and shutdown. The terms although it is true that these guidance that provisions allowing exemptions or ‘‘startup’’ and ‘‘shutdown’’ do not documents indicated that one less affirmative defenses for excess appear in the 1992 guidance. In 2005, preferable way to account for startup emissions during startup and shutdown the EPA replaced the 1992 guidance and shutdown emissions could be are consistent with a state’s authority document on rule effectiveness as part through the rule effectiveness analysis, under CAA section 110 and that this is of providing guidance for the this does not in any way indicate that evidenced by the fact that the EPA has implementation of the 1997 ozone and exemptions from emissions limitations 369 would be appropriate for such periods. issued guidance on ‘‘rule effectiveness’’ PM2.5 NAAQS. Like the 1992 that plainly takes into account a guidance, the 2005 guidance associated Comment: A commenter argued that ‘‘discount’’ factor in a state’s ‘‘rule effectiveness’’ with the issue of the EPA has not shown any substantial demonstration of attainment when it noncompliance and did not provide any inadequacy with respect to CAA chooses to adopt startup/shutdown specific advice on quantifying emissions requirements but that the closest the provisions. This commenter cited the that could be legally emitted because of EPA comes to identifying a substantial EPA’s definition of ‘‘rule effectiveness’’ SSM exemptions in SIPs. To avoid inadequacy is in the EPA’s discussion of at 40 CFR 51.50 and EPA guidance on misunderstanding, the 2005 guidance its concern regarding the impacts of demonstrating attainment of PM2.5 and included a question and answer on SSM exemptions on the development of 367 regional haze air quality goals. startup and shutdown emissions to the accurate emissions inventories for air Response: The EPA disagrees with the effect that emissions during startup and quality modeling and other SIP characterization in this comment of past shutdown should be included in ‘‘actual planning. This commenter and another EPA guidance and with the conclusion emissions.’’ This question and answer commenter in particular noted a passage that the fact of the existence of EPA included the statement, ‘‘[L]ess in the February 2013 proposal that guidance on ‘‘rule effectiveness’’ would preferably, [emissions during startup, stated that emission limitations in SIPs support the claim that the CAA provides shutdown, upsets and malfunctions] can are used to meet various requirements authority for exemptions or affirmative be accounted for using the rule for attainment and maintenance of the defenses for excess emissions during effectiveness adjustment procedures NAAQS and that all of these uses startup and shutdown. The EPA’s outlined in this guidance.’’ However, typically assume continuous source definition of ‘‘rule effectiveness’’ at 40 other than in this question and answer, compliance with emission CFR 51.50 does not refer to startup and 371 the 2005 guidance does not mention limitations. These commenters emissions during startup and shutdown disagreed with the EPA’s statement that 367 The commenter appears to have been meaning all of these uses typically assume to cite to the draft EPA guidance document ‘‘Draft continuous source compliance with Guidance for Demonstrating Attainment of Air 368 ‘‘Guidelines for Estimating and Applying Rule Quality Goals for PM2.5 and Regional Haze,’’ Effectiveness for Ozone/CO State Implementation 370 January 2, 2001. This draft guidance on PM2.5 and Plan Base Year Inventories,’’ November 1992, EPA– ‘‘Draft Emissions Inventory Guidance for Regional Haze was combined with similar guidance 4S2JR–92.010. Implementation of Ozone [and Particulate Matter]* on ozone in the final guidance document 369 ‘‘Emissions Inventory Guidance for National Ambient Air Quality Standards (NAAQS) ‘‘Guidance on the Use of Models and Other Implementation of Ozone and Particulate Matter and Regional Haze Regulations,’’ April 11, 2014, Analyses for Demonstrating Attainment of Air National Ambient Air Quality Standards (NAAQS) page 62. 371 Quality Goals for Ozone, PM2.5, and Regional and Regional Haze Regulations,’’ Appendix B, February 2013 proposal, 78 FR 12459 at Haze,’’ April 2007, EPA–454/B–07–002. August 2005, EPA–454/R–05–001. 12485.

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applicable emission limitations, and the EPA’s longstanding SSM Policy has periods. Given that the EPA’s commenters cited several EPA guidance interpreted the Act to prohibit longstanding SSM Policy has been that documents and statements that, they exemptions during SSM events, it has exemptions for excess emissions during believe, address SSM and ensure that not been a focus of EPA guidance to SSM events are not permissible, the states do not simply assume continuous explain to states how to take account of EPA had no reason to provide guidance compliance. These commenters in such exemptions. As the commenters on how attainment demonstrations addition cited to footnote 4 of the EPA’s have pointed out, some aspects of some should account for such exemptions. 1999 SSM Guidance.372 The EPA guidance documents have some The commenters are right to infer that commenters argued that as long as states relationship to the issue of accounting the EPA does believe that where are complying with the EPA’s inventory for SSM exemptions. Nevertheless, exemptions for excess emissions during and modeling rules and guidance, SSM taken together, the EPA’s guidance does anticipatable events still remain in exemptions and similar applicability not and cannot ensure that emission current SIPs, attainment demonstrations provisions have no negative impact on estimates used in developing SIPs and ideally should account for them. Indeed, SIP planning. permits correctly reflect actual the EPA’s guidance has recommended Response: The EPA acknowledges emissions in all cases in which SSM that all emissions during startup and that the cited statement in the February exemptions still exist in SIPs, shutdown events be included in both 2013 proposal, that various types of particularly for sources that, unlike all historical and projected emissions required analysis used to develop SIPs or most of the sources represented by inventories.374 However, as long as or permits ‘‘typically assume these two commenters, are not subject to exemptions for excess emissions during continuous source compliance with continuous emissions monitoring. For a SSM events have the effect of making emission limitations,’’ was an source not subject to continuous such excess emissions not be violations oversimplification of a complex emissions monitoring, when excess and thus not reportable as violations, it situation. However, the EPA disagrees emissions during SSM events are will be difficult for air agencies to have with the commenters’ assertion that the exempted by a SIP—whether confidence that they have sufficient EPA’s inventory rules and other automatically, on a special showing or knowledge of the magnitude, location guidance are sufficient to ensure that through director’s discretion—it is and timing of such emissions as would SSM exemptions, where they still exist much more likely that those emissions be needed to accurately account for in SIPs, have no negative impact on SIP would not be quantified and reported to those emissions in attainment planning. Also, if the EPA were to allow the air agency such that they could be demonstrations, especially for NAAQS them, such exemptions could become accounted for in SIP and permit with averaging periods of one day or more prevalent and have a larger development. For example, when the less. The EPA has promulgated negative effect. More importantly, SIP includes exemptions for excess emissions inventory reporting rules, but regardless of how SSM exemptions may emissions during SSM events, there may these rules apply requirements to air or may not negatively impact things like be no motive for a source to perform a agencies rather than to the sources that emissions inventories, as explained special stack test during a SSM period would have actual knowledge of startup elsewhere in this document, the EPA in which there is no applicable emission and shutdown events and emissions. To believes that it is a fundamental limitation and possibly no legal basis for make a complying inventory data requirement of the CAA that SIP an air agency to require such a stack submission to the EPA, an air agency emission limitations be continuous, test. It would also be unusual to find does not have to obtain from sources which therefore precludes exemptions well-documented emission factors for information on the magnitude and for excess emissions during SSM events. such transient operation that could be timing of emissions during SSM events Generally, the EPA’s guidance and used in place of source-specific testing. for which an exemption applies, and to rules do not say that it is correct for As explained in a response provided the EPA’s knowledge most air agencies estimates of source emissions used in earlier in this document, the EPA do not obtain this information. The SIP development to be based on an guidance documents also cited by these EPA’s emissions inventory rules require assumption of continuous compliance commenters in fact do not address how the reporting of historical annual-total with the SIP emission limitations even the effect of exemptions in SIPs for emissions only (and in some areas if the SIP contains exemptions for SSM excess emissions during startup and ‘‘typical’’ seasonal and/or daily periods. Rather, the EPA has generally shutdown can be accounted for in an emissions for certain pollutants), not emphasized that SIPs and permits attainment or maintenance day-to-day emissions. Actual emissions should be based on the best available demonstration. The cited 1992 ‘‘rule during SSM events should be included information on actual emissions, effectiveness’’ guidance in regard to in these annual emissions. While data including in most cases the effects of issues such as noncompliance in the formats are available from the EPA to known or reasonably anticipatable form of non-operation of control allow a state to segregate the total annual emissions during SSM events noncompliance with emission equipment, malfunctions, poor limitations that do apply.373 Because the maintenance and deterioration of 374 For example, see ‘‘Emissions Inventory control equipment was meant to address Guidance for Implementation of Ozone and 372 The EPA interprets the citation ‘‘See supra pp. how the issues affected emissions in Particulate Matter National Ambient Air Quality 21–24’’ as being intended to refer to those pages of 1990, not in a future year when the Standards (NAAQS) and Regional Haze ‘‘Guidelines for Estimating and Applying Rule NAAQS must be attained. The 2005 Regulations,’’ Appendix B, August 2005, EPA–454/ Effectiveness for Ozone/CO State Implementation R–05–001. A recent draft EPA guidance on the Plan Base Year Inventories,’’ November 1992, EPA– guidance also did not provide any preparation of emissions inventories for attainment 4S2JR–92.010, which this commenter did not refer particular advice on how ‘‘rule demonstrations recognizes that, in contrast to to by title. effectiveness’’ concepts could be used to startup and shutdown emissions, emissions during 373 New source permitting under the PSD program malfunctions are not predictable and do not need is an exception to the principle that the effects of estimate emissions during exempt SSM to be included in projected inventories for the noncompliance should be included in estimates of future year of attainment. See ‘‘Draft Emissions source emissions. The air quality impact analysis type of analysis to consider excess emissions that Inventory Guidance for Implementation of Ozone for a proposed PSD permit is based on an are the result of poor maintenance, careless [and Particulate Matter]* National Ambient Air assumption that the source will operate without operation or other preventable conditions. See 40 Quality Standards (NAAQS) and Regional Haze malfunctions. However, it may be necessary in this CFR part 51, appendix W, section 8.1.2, footnote a. Regulations,’’ April 11, 2014, page 62.

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from annual emissions during other account for the effect of SSM case, this SIP call action is not based on type of operation, to segregate the exemptions.375 any EPA determination about how emissions is not a requirement and few Comment: A number of commenters modeling uncertainties due to SSM states do so. Moreover, the EPA’s stated their understanding that the EPA exemptions in SIPs compare to other emissions inventory rules require has proposed SIP calls as a way of modeling uncertainties. reporting on most sources only on an improving air agencies’ implementation 20. Comments that exemptions for ‘‘every third year’’ basis, which means of EPA-specified requirements in excess emissions during SSM events are that unless an air agency has authority emissions inventory or modeling, and not a concern with respect to PSD and to and does require more information they stated that if this is the EPA’s protection of PSD increments. Comment: Commenters asserted that from sources than is needed to meet the concern then the EPA should address the issue in that context. the EPA has not adequately explained air agency’s reporting obligation to the the basis for its concerns about the EPA, the air agency will not be in a Response: To clarify its position, the EPA explains here that while it believes impact of emissions during SSM events position to know whether and how, on PSD increments. between the triennial inventory reports, that approvable SIP revisions in response to the proposed SIP calls will Response: The EPA disagrees. As excess emissions during startup and have the benefit of providing explained in detail in the background shutdown may be changing due to information on actual emissions during memorandum included in the docket for variations in source operation and 376 SSM events that can improve emissions this rulemaking, CAA section possibly affecting attainment or inventories and modeling, the 110(a)(2)(C) requires that a state’s SIP maintenance. Thus, the EPA’s emissions availability of this additional must include a PSD program to meet inventory rules provide air agencies information is not the basis for the SIP CAA requirements for attainment 377 only limited leverage in terms of ability calls that are being finalized. The EPA areas. In addition, section 161 to obtain detailed information from believes that it is a fundamental explains that ‘‘[e]ach [SIP] shall contain sources regarding the extent to which requirement of the CAA that SIP emission limitations and such other actual emissions during SSM events emission limitations be continuous, measures as may be necessary . . . to may be unreported in emissions which therefore precludes exemptions prevent significant deterioration of air inventories, due to SIP exemptions. The for excess emissions during startup and quality for such region . . . designated EPA believes that when exemptions for shutdown. . . . as attainment or unclassifiable.’’ excess emissions during SSM events are Comment: An air agency commenter Specifically, each SIP is required to removed from SIPs, thereby making stated that facilities in its state are contain measures assuring that certain high emissions during SSM events required to submit data on all annual pollutants do not exceed designated maximum allowable increases over specifically reportable deviations from emissions, including emissions from 378 emission limitations for more sources startup and shutdown operation (and baseline concentrations. These maximum allowable increases are than now report them as such, it will be malfunctions), as part of its annual known as PSD increments. Applicable easier for air agencies to understand the emissions inventory, and that it takes EPA regulations require states to these emissions into consideration as timing and magnitude of event-related include in their SIPs emission part of SIP development. emissions that can affect attainment and limitations and such other measures as Response: The EPA appreciates the maintenance. However, this belief is not may be necessary in attainment areas to efforts of this commenter to develop the basis for this SIP call action, only an assure protection of PSD increments.379 SIPs that account for all emissions. expected useful outcome of it. Authorizing sources in attainment areas However, these efforts and whatever to exceed SIP emission limitations Footnote 4 of the EPA’s 1999 SSM degree of success the commenter enjoys during SSM events compromises the Guidance suggested that ‘‘[s]tates may do not change the fundamental protection of these increments. account for [potential worst-case requirement of the CAA that SIP The commenters’ concerns seem to be emissions that could occur during emission limitations be continuous, focused on PSD permitting for startup and shutdown] by including which therefore precludes exemptions individual sources rather than on them in their routine rule effectiveness for excess emissions during startup and emission limitations in SIPs. The estimates.’’ This statement in the 1999 shutdown. commenters asserted that the EPA document’s footnote may seem at odds Comment: A commenter argued that already adequately accounts for all with the statement in this response that even to the extent SSM emissions emissions during SSM events when the ‘‘rule effectiveness’’ concept was not present some level of uncertainty in calculating the baseline and increment meant to embrace excess emissions model-based air quality projections, that consumption and expressed concern during startup and shutdown that were uncertainty is small compared to other about the potential for ‘‘double allowed because of SIP exemptions. sources of uncertainty in modeling counting’’ of emissions by counting However, the footnote is attached to text analyses, and so SSM emissions will not them both toward the baseline and that addresses ‘‘worst-case’’ emissions have any significant impact on against increment. The EPA agrees that that are higher than allowed by the attainment demonstrations or any applicable SIP, because that text speaks underlying air quality modeling 376 See Memorandum, ‘‘Statutory, Regulatory, and about the required demonstration to analysis. Policy Context for this Rulemaking,’’ February 4, in support a SIP revision containing an Response: In support of this very the rulemaking docket at EPA–HQ–OAR–2012– affirmative defense for violations of general statement, the commenter 0322–0029. applicable SIP emission limitations. provided only its own assessment of its 377 ‘‘Each implementation plan . . . shall . .ensp;. include a program to provide for . . . regulation of Thus, estimates of such worst-case own experience and the similar opinion the modification and construction of any stationary emissions would reflect the effects of of unnamed permitting agencies. In any source within the areas covered by the plan as noncompliance, which is within the necessary to assure that [NAAQS] are achieved, intended scope of the EPA’s ‘‘rule 375 In light of the NRDC v. EPA decision, including a permit program as required in . . . part C.’’ CAA section 110(a)(2)(C). effectiveness’’ guidance. Footnote 4 was affirmative defense provisions are not allowed in SIPs any longer, so this aspect of the 1999 SSM 378 CAA section 163. not referring to the issue of how to Guidance is no longer relevant. 379 See 40 CFR 51.166(c).

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emissions should not be double-counted protection of public health and the through its SIP that a state demonstrates and has regulatory requirements in environment. that it has in place an air quality place to ensure that emissions are either Comment: Industry commenters management program that will attain attributed to the baseline or counted claimed that because ambient air quality and maintain the NAAQS on an ongoing against increment but not both.380 data show that air quality has been basis, and so it is critical that the state, Nevertheless, permitting agencies base consistently improving over a period of through its SIP provisions, can ensure their calculations of both the baseline years, this proves that exemptions for that emissions during normal source and increment consumption on air emissions during SSM events do not operation including startup and quality data representing actual impede the ability of areas to attain and shutdown events do not exceed levels emissions from sources.381 As explained maintain the NAAQS. The commenters relied on for purposes of developing more fully in the background provided a chart showing percentage attainment and maintenance plans. memorandum accompanying the reduction in emissions of the various Similarly, SIP provisions designed to February 2013 proposal, the EPA is NAAQS pollutants ranging from 52 protect visibility must also meet concerned that as a result of SSM percent reduction in NOX between 1980 requirements of the CAA, and exemptions in SIPs, inventories of and 2010 to 83 percent reduction in exemptions for emissions during SSM actual emissions often do not include an direct PM10 emissions for that same time events would likewise have the accurate accounting of excess emissions period. The commenters further claimed potential to undermine visibility that occur during SSM events. that a significant portion of the recent objectives of the CAA. Thus, it is not Moreover, the models used to calculate emissions reductions have been appropriate to exempt emissions during increment consumption typically achieved by electric utilities. The these SSM events from compliance with assume continuous source compliance commenters also provided charts and emission limitations in SIPs. As with applicable emission limitations.382 graphs showing reductions in pollutants explained in this final action, the state Authorizing exceedances of emission under the CAA Acid Rain Program. The has flexibility in choosing how to limitations during SSM events would commenters further claimed that the regulate source during these periods of compromise the accuracy of the states in which they operate—Alabama, operation, and sources do not projections made by these models. Florida, Georgia, Mississippi and North necessarily have to be subject to the Accurate calculations of the baseline Carolina—are meeting the NAAQS, with same numerical emissions limitations or and increment consumption rely on the isolated exceptions. The commenters the same other control requirements correct accounting of all emissions, further stated that, although the EPA during startup and shutdown that apply including those occurring during SSM recently has promulgated several new during other modes of operation. events. Without accurate data, the EPA NAAQS, the attainment plans for those However, SIP emission limitations must cannot be certain that state agencies are standards are not yet due, and thus the be continuous, and thus sources must be calculating baseline or increment new standards cannot justify the SIP subject to requirements that apply at all consumption correctly or that call. The commenters concluded by times including during startup and increments in attainment areas are not noting that the states’ success in shutdown. being exceeded. For the foregoing achieving the various NAAQS, even as 22. Comments that the EPA’s position reasons, the EPA is concerned that SSM the NAAQS have been strengthened, that SIP provisions such as automatic exemptions in SIPs compromise the demonstrates that the existing SSM exemptions for excess emissions during ability of the PSD program to protect air exemptions in SIP provisions identified SSM events hinder effective by the EPA do not ‘‘place the NAAQS enforcement for violations is incorrect, quality increments. at risk.’’ Regarding visibility, the because there have been a number of 21. Comments that because ambient commenters noted that plans to show citizen suits brought under the CAA. air quality has improved over the progress in meeting the regional haze Comment: According to industry duration of the CAA through various goal were due in 2013 and that evidence commenters, the EPA’s argument that regulatory programs such as the Acid shows that visibility is also improving deficient SIP provisions concerning Rain Program, this disproves that SIP notwithstanding the existing SSM emissions during SSM events limit provisions including exemptions for exemptions. enforcement of violations of emissions excess emissions during SSM events Response: The EPA agrees that many limitations under sections 113 and 304 pose any concerns with respect to areas in the U.S. have made great strides is inaccurate, because ‘‘the facts show in improving ambient air quality under that SSM provisions do not preclude or 380 See 40 CFR 51.166 and 52.21. the CAA. However, excess emissions hinder enforcement of any CAA 381 See CAA section 169(4) (defining baseline from sources during SSM events have requirements.’’ The commenters concentration); 40 CFR 51.166(b)(13)(i) (setting the potential to undermine that progress provided a list of ‘‘recent’’ enforcement forth what is included in baseline concentration; 40 CFR 52.21(b)(13)(i) (same). The Federal Register and are also inconsistent with the actions and asserted that ‘‘[t]he sheer document promulgating the revised PSD regulations requirements of the CAA, as discussed number of cases demonstrates that the also explained this point. In that document, the elsewhere in the February 2013 existing regulations provide ample EPA explained, ‘‘[B]aseline concentrations reflect proposal and in this final action. The opportunity for enforcement.’’ The actual air quality in an area. Increment EPA notes that the fact that an area has commenters cited to litigation brought consumption or expansion is directly related to baseline concentration. Any emissions not included attained the NAAQS does not by citizen groups that the commenters in the baseline are counted against the increment. demonstrate that emissions during SSM asserted has resulted in settlements The complementary relationship between the events do not have the potential to including ‘‘injunctive relief and concepts supports using the same approach for undermine attainment or maintenance supplemental environmental projects calculating emissions contributions to each.’’ 45 FR 52676, 52718 (August 7, 1980). ‘‘Actual emissions’’ of the NAAQS, interfere with protection (‘‘SEPs’’) worth tens of millions, if not is defined in 40 CFR 51.166(b)(21)(i) and of PSD increments or interfere with hundreds of millions, of dollars.’’ The 52.21(b)(21)(i). visibility. For certain pollutants, such as commenters also cited to one example 382 See 45 FR 52717 (‘‘increment consumption lead or SO2, a single source could have to suggest that ‘‘whereas EPA and/or and expansion should be based primarily on actual emissions increases and decreases, which can be a single SSM event that could cause an States may use enforcement discretion’’ presumed to be allowable emissions for sources exceedance of the NAAQS that would in certain types of cases, ‘‘citizen groups subject to source-specific emissions limitations.’’). otherwise not have occurred. It is do not.’’

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Response: The EPA disagrees with the rulemaking to rectify any emissions limitations can undermine commenters’ logic that the mere discrepancy.384 In this final action on effective enforcement during times existence of enforcement actions negates the Petition, the EPA has determined when the CAA requires continuous the concern that deficient SIP that the specific SIP provision at issue compliance with such emissions provisions interfere with effective in that case is deficient for several limitations. By interfering with enforcement of SIP emission limitations. reasons. Had that deficient SIP enforcement, such provisions The EPA believes that deficient SIP provision not been in the SIP at the time undermine the integrity of the SIP provisions can interfere with effective of the enforcement action, then the process and the rights of parties to seek enforcement by air agencies, the EPA provision would not have had any effect enforcement for violation of SIP and the public to assure that sources on the outcome of the case. Instead, the emission limitations. comply with CAA requirements, courts would have evaluated the alleged A number of commenters on the contrary to the fundamental violations and imposed any appropriate February 2013 proposal indicated that, enforcement structure provided in CAA remedies consistent with the applicable from their perspective, a primary benefit sections 113 and 304. For example, CAA provisions, rather than in of automatic or discretionary automatic or discretionary exemption accordance with the SIP provision that exemptions in SIP provisions applicable provisions for excess emissions during imposed the state’s enforcement to emissions during SSM events is to SSM events by definition completely discretion preferences on other parties shield sources from liability. Similarly, eliminate the possibility of enforcement contrary to their rights under the CAA. commenters on the SNPR indicated that, for what may otherwise be clear As the outcome of this case from their perspective, a key benefit of violations of emissions limitations demonstrates, the mere fact that a affirmative defense provisions is to during those times. Affirmative defense number of enforcement actions have prevent what is in their opinion provisions purport to alter or eliminate been filed does not mean that the inappropriate enforcement action for the statutory jurisdiction of courts to deficient SIP provisions identified by violations of SIP emission limitations determine liability or to impose the EPA in this SIP call action do not during SSM events. The EPA does not remedies for violations. These types of hinder effective enforcement under agree that the purpose of SIP provisions provisions eliminate the opportunity to sections 113 and 304. To the contrary, should be to preclude or impede obtain injunctive relief or penalties that that case illustrates exactly how conduct effective enforcement of SIP emission may be needed to ensure appropriate that might otherwise be a clear violation limitations. To the contrary, the efforts to design, operate and maintain of the applicable SIP emission potential for enforcement for violations sources so as to prevent and to limitations by a source was rendered of CAA requirements is a key minimize excess emissions, protect the immune from enforcement through the component of the enforcement structure NAAQS and PSD increments and meet application of a provision that operated of the CAA. To the extent that other CAA requirements. Similarly, the to excuse liability for violations and commenters are concerned about exemption of sources from liability for potentially allowed unlimited excess inappropriate enforcement actions for excess emissions during SSM events emissions during SSM events. conduct that is not in violation of CAA eliminates incentives to minimize The commenters cited 15 other requirements, the EPA believes that the emissions during those times. These enforcement cases brought by sources already have the ability to exemptions thus reduce deterrence of government and citizen groups over a defend against any such invalid claims future violations from the same sources span of 17 years, but the commenters do in court. or other sources during these periods. not indicate whether any SIP provisions 23. Comments that the EPA’s alleged In the February 2013 proposal, the relevant to emissions during SSM inclusion of ‘‘exemptions’’ or EPA discussed in detail an enforcement events were involved, nor do the ‘‘affirmative defenses’’ in enforcement case that illustrates and supports the commenters indicate whether any consent decrees negates the Agency’s Agency’s position.383 In that case, provisions at issue in this SIP call action interpretation of the CAA to prohibit citizen suit plaintiffs sought to bring an were involved in any of the enforcement them in SIP provisions. enforcement action against a source for cases it cited.385 Even if an enforcement Comment: One industry commenter thousands of self-reported exceedances action has been initiated, the EPA’s claimed that the EPA has itself recently of emission limitations in the source’s fundamental point remains: SIP promulgated an exemption for operating permit. The source asserted provisions that exempt what would emissions during SSM events. The that those exceedances were not otherwise be a violation of SIP commenter cited an April 1, 2013, ‘‘violations,’’ through application of a settlement agreement in a CAA permit provision that mirrored an 384 See Sierra Club v. Georgia Power Co., 443 F.3d enforcement case against Dominion underlying Georgia SIP provision. The 1346 (11th Cir. 2006). Energy as an example. According to the 385 Even if these cases did all involve SIP commenter, this settlement agreement U.S. Court of Appeals for the Eleventh provisions relevant to SSM events, the sampling of Circuit (Eleventh Circuit) ultimately cases cited by the commenter still do not prove the ‘‘provides allowances for excess determined that the provision created commenter’s point. The commenter indicated that emissions during startup and an ‘‘affirmative defense’’ for SSM 11 of the 15 cited cases resulted in settlement. The shutdown’’ and ‘‘allows an EGU to EPA presumes that neither party admitted any fault operate without the ESP when it is not emissions that shielded the source from in these settlements and it remains unknown liability for numerous violations. The whether the court would have found the existence practicable.’’ The commenter court noted that even if the approved of a violation. In addition, because these cases were characterized this as the creation of an provision in Georgia’s SIP was settled, it is unknown whether exemption or exemption from the applicable emission affirmative defense provisions would have limitations during startup and inconsistent with the EPA’s guidance on prevented the court from finding liability for the proper treatment of excess emissions violation of a CAA emissions limitation that would shutdown. The commenter further during SSM events, the defendant could otherwise have applied. In one additional case cited alleged that the settlement agreement rely on the provision because the EPA by the commenter, the court determined that the ‘‘provides for an affirmative defense to defendant successfully asserted an affirmative stipulated penalties for excess emissions had not taken action through defense to alleged violations of a 6-minute 40- percent opacity limit. The outcome of this case occurring during start up and 383 See February 2013 proposal, 78 FR 12459 at evidently supports the EPA’s concerns about the shutdown.’’ The commenter intended 12504–05. impacts of such provisions. the fact that the EPA agrees to this type

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of provision in an enforcement and cannot be seen as a compromise of ‘‘a transition period of a reasonable settlement agreement to establish that the court’s own jurisdiction or length far exceeding 48 months.’’ affirmative defense provisions must also authority. Indeed, the specific consent Another industry commenter stated be valid in SIP provisions so that decree cited by the commenter contains that more time is necessary but sources can assert them in the event of exactly these types of ‘‘affirmative recognized that the maximum statutory any violation of SIP emission defense’’ provisions that are applicable period is 18 months. The commenter limitations. only to the stipulated penalties imposed supported the EPA’s providing states Response: The EPA disagrees with the contractually by the consent decree and with the full 18 months to submit SIP commenter concerning the EPA’s that do not operate to create any other revisions, because that time is needed in purported creation of exemptions for form of affirmative defense applicable order for the states to undertake the SSM events in enforcement consent more broadly. necessary technical analyses to support decrees or settlement agreements. The EPA’s use of these provisions in the SIP revisions and in order to allow Consent decrees or settlement enforcement consent decrees or for the state rulemaking processes. agreements negotiated by the EPA to settlement agreements is not Response: The EPA recognizes that resolve enforcement actions do not raise inconsistent with the EPA’s rule development and the associated the same concerns as automatic interpretation of the CAA to preclude administrative processes can be exemptions for excess emissions during such provisions in SIPs. The EPA complex and time-consuming for states SSM periods or any other provisions interprets the CAA to preclude such and for the Agency. Thus, the EPA is that the EPA has found substantially affirmative defenses in SIP provisions providing the maximum period allowed inadequate in this SIP call action. because they purport to alter or under CAA section 110(k)(5)—18 The EPA has the authority to enter eliminate the jurisdiction of courts to months—for states to submit SIP consent decrees and settlement find liability or to impose remedies for revisions in response to the SIP call. agreements in its enforcement cases and CAA violations in the event of judicial The EPA does not have authority under uses this discretion to resolve these enforcement. No such concern is the statute to provide states with a cases. Settlements aim to achieve the presented by the types of provisions in longer period of time to submit these best possible result for a given case, consent decrees or settlement SIP submissions. To assist states in responding to this SIP call, the EPA is taking into account its specific agreements raised by the commenters, circumstances and risks, but are still providing updated and comprehensive because the terms of such agreements compromises between the parties to the guidance concerning CAA requirements must be approved and sanctioned by a litigation. applicable to SIP provisions with court. The EPA also disagrees with respect to emissions during SSM events. comments that attempt to equate 24. Comments that the EPA should Ideally, this guidance will allow states affirmative defense provisions in SIPs provide more than 18 months for the and the EPA to address the existing with affirmative defense clauses that the SIP call because state law administrative deficiencies as efficiently as possible, EPA and defendants agree to process can take longer than that. given the statutory schedules applicable contractually in a consent decree or Comment: Several state and industry to both states and the Agency. settlement agreement to resolve an commenters claimed that states will The commenter who cited to 40 CFR enforcement case. Some consent decrees need longer than 18 months to submit 51.166(a)(6) is incorrect that it provides and settlement agreements that the EPA SIPs in response to a SIP call. One state authority for the EPA to grant states 3 enters into contain provisions referred commenter argued generally that more years to correct SIPs in response to a SIP to as ‘‘affirmative defenses’’ that apply time is needed for the state to ‘‘change call. The regulatory provision cited by only with respect to whether a source rules and submit a proposed SIP the commenter is part of the EPA’s must pay stipulated penalties specified revision’’ but did not provide any detail regulations for the PSD program and in the consent decree or settlement on how much more time is needed. The simply provides that if the EPA amends agreement. However, the EPA does not commenter concluded that a ‘‘total of that section of the PSD regulations, then believe these agreements are counter to five years’’ is needed for both the state a state will have 3 years to make a SIP CAA requirements. The provisions in to complete its actions and for facilities submission to revise its SIP to meet the these contractual agreements are ‘‘to change operating procedures or add new PSD requirements in response to distinguishable from affirmative defense hardware.’’ Another state commenter such amendments. This final action provisions in SIPs for excess emissions claimed states would need at least 3 does not amend the PSD regulations and during SSM events. Affirmative years to submit revised plans and cited 40 CFR 51.166(a)(6) is not implicated. defenses to stipulated penalties apply to 40 CFR 51.166(a)(6) as providing a 3- Under CAA section 110(k)(5), the EPA only in the limited context of violations year window for submission of SIP is only authorized to provide a of the contract terms of the consent revisions. maximum period of 18 months for states decree or settlement agreement. An industry commenter asserted that to submit SIP revisions to rectify the SIP Significantly, these affirmative it has taken EPA numerous years to deficiencies. defense provisions apply only to the address the startup and shutdown 25. Comments that EPA should issue stipulated penalties of the consent provisions in its own MACT standards an interim enforcement policy, with decree or settlement agreement and do and that states will need a similar respect to enforcement between the time not carry over for incorporation into the amount of time to ‘‘unspin’’ the SSM that states revise SIP requirements and source’s permit. Most importantly, these provisions from SIP emission source permits are revised to reflect affirmative defense provisions do not limitations and replace them with new those changes. affect the penalty for violations of CAA requirements. The commenter pointed Comment: One commenter argued requirements in general or of SIP to the difficulty of modifying multiple that if the EPA finalizes the proposed emission limitation violations in permits and source-specific or source- SIP call for provisions applicable to particular. Further, a consent decree is category specific regulations. The emissions during SSM events, it will itself a court order, and where these commenter urged the EPA to provide take state regulators a significant period provisions have been used in a consent much more time that the 18 months of time to ‘‘disaggregate’’ the effect of decree they are sanctioned by the court allowed by statute for a SIP call through those deficient provisions on various

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other SIP provisions and the instead of relying on exemptions). state commenters claimed that they will requirements of source operating Sources subject to permit requirements not be able simply to revise regulations permits. Because these corrections to will thus have yet more time (beyond to eliminate startup and shutdown SIP provisions and permit requirements the 18 months allowed for the SIP exemptions. Instead, the commenters will take time to occur, the commenter revision in response to this SIP call claimed, the states will need to revise asserted that ‘‘a transition period of action) over the permit review cycle to the emissions limitations completely in reasonable length far exceeding 48 take steps to meet revised permit terms order to take into account the EPA’s months will be needed to shield reflecting the revised SIP provisions. interpretation of the CAA that such industry from enforcement.’’ The However, the EPA does not agree with exemptions are impermissible. The commenter thus requested that the EPA the commenter that there is a need for commenters asserted that rewriting the impose such a transition period. In a ‘‘transition period’’ to ‘‘shield’’ state regulations will produce no addition, the commenter suggested that sources from enforcement. The EPA’s reduction in emissions or improvement the EPA should create ‘‘an interim objective in this action is to eliminate in air quality and will merely impose enforcement policy’’ to shield sources impermissible SIP provisions that burdens upon states to change existing and allow reliance on affirmative exempt emissions during SSM events or regulations. The implication of the defense provisions ‘‘even after SIPs are otherwise interfere with effective commenters’ argument is that states will corrected until permits reflect those enforcement for violations that occur merely revise SIP emission limitations changes.’’ The commenter posed this during such events. Further delaying the to allow the same amount of emissions request based upon concern that there time by which sources will be expected during SSM events by some other will be industry confusion concerning to comply with SIP provisions that are means, rather than by establishing what requirements apply to individual consistent with CAA requirements is emission limitations that would sources until permits are revised to inappropriate. Moreover, the primary encourage sources to be designed, reflect the correction of the deficient SIP purpose of SIP provisions is not to operated and maintained in a fashion provisions. shield sources from liability for that would better control those Response: The EPA agrees with the violations of CAA requirements but emissions. commenter that it will take time for rather to assure that sources are required Response: The EPA does not agree states to make the necessary SIP to meet CAA requirements. with the commenters’ assertion that revisions in response to this SIP call, for The EPA shares the commenter’s revisions to the affected SIP provisions the EPA to evaluate and act upon those concern that there is the potential for in response to this SIP call action will SIP submissions and subsequently for confusion on the part of sources or other produce no emissions reductions or states or the Agency to revise operating parties in the interim period between improvements in air quality. The EPA permits in the ordinary course to reflect the correction of deficient SIP recognizes that some states may elect to the corrected state SIPs. As explained in provisions and the revision of source develop revised emission limitations the February 2013 proposal, the EPA operating permits in the ordinary that provide for alternative numerical consciously elected to proceed via its course. However, the EPA presumes that limitations, control technologies or SIP call authority under section most sources required to have a permit, work practices applicable during startup 110(k)(5) and to provide the statutory especially a title V operating permit, are and shutdown that differ from maximum of 18 months for the sufficiently sophisticated and aware of requirements applicable during other submission of corrective SIP revisions. their legal rights and responsibilities modes of source operation. Other states The EPA chose this path specifically in that the possibility for confusion on the may elect to develop completely revised order to provide states with time to part of sources should be very limited. emission limitations and elevate the revise their deficient SIP provisions Likewise, by making clear in this final level of the numerical emission correctly and in the manner that they action that sources will continue to be limitation that applies at all times to think most appropriate, consistent with authorized to operate in accordance account for greater emissions during CAA requirements. The EPA also with existing permit terms until such startup and shutdown. However, any explicitly acknowledged that during the time as the permits are revised after the such revised emission limitations must pendency of the SIP revision process, necessary SIP revision, the EPA comply with applicable substantive and during the time that it will take for anticipates that other parties should be CAA requirements relevant to the type permit terms to be revised in the on notice of this fact as well. Regardless of SIP provision at issue, e.g. be RACM ordinary course, sources will remain of the potential for confusion by any and RACT for sources located in legally authorized to emit in accordance party, the EPA believes that the legal nonattainment areas, and must meet with current permit terms.386 principle of the ‘‘permit shield’’ is well other requirements for SIP revisions The EPA is in this final action known by regulated entities, regulators, such as in sections 110(k)(3), 110(l) and reiterating that the issuance of the SIP courts and other interested parties. 193. call action does not automatically alter Accordingly, the EPA is not issuing any The EPA believes that revision of the any provisions in existing operating ‘‘enforcement policy’’ in connection existing deficient SIP provisions has the permits. By design, sources for which with this SIP call action. potential to decrease emissions emission limitations are incorporated in 26. Comments that a SIP call directing significantly in comparison to existing permits will thus have a de facto states to eliminate exemptions for provisions, such as those that authorize transition period during which they can excess emissions during SSM events is unlimited emissions during startup and take steps to assure that they will a ‘‘paper exercise’’ or ‘‘exalts form over shutdown. Elimination of automatic and ultimately meet the revised SIP substance.’’ director’s discretion exemptions for provisions (e.g., by changing their Comment: A number of commenters emissions during SSM events should equipment or mode of operation to meet argued that by requiring states to correct encourage sources to reduce emissions an appropriate emission limitation that deficient SIP provisions, such as by during startup and shutdown and to applies during startup and shutdown requiring removal of exemptions for take steps to avoid malfunctions. emissions during SSM events, this SIP Elimination of inappropriate 386 See February 2013 proposal, 78 FR 12459 at call action will not result in any enforcement discretion provisions and 12482. environmental benefits. For example, affirmative defense provisions should

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provide increased incentive for sources and built. The commenter claimed that requirements of the CAA for SIP to be properly designed, operated and the SIP call would ‘‘change the legal provisions. Existing sources will not be maintained in order to reduce emissions structure for commercial transactions required to comply with the revised SIP at all times. The EPA also anticipates that have already taken place.’’ The emission limitations until the SIPs are that revision of older SIP emission thrust of the commenters’ argument is updated, and if they are subject to limitations in light of more recent that sources, once built, should never be permit requirements the sources may technological advances in control subjected to any additional pollution continue to operate consistent with technology, and in light of more recent control requirements once they are in those permits until the operating NAAQS, has the potential to result in existence. permits are revised to reflect the revised significant emission control and air Response: The EPA disagrees with the SIP requirements, but after that time quality improvements. In any event, by commenters’ suggestions for multiple current sources will be required to bringing these provisions into reasons. At the outset, the EPA notes comply. Thus, sources will not compliance with CAA requirements, the that the only significant actual ‘‘change’’ immediately be in noncompliance with EPA believes that the resulting SIP in the Agency’s SSM Policy in this any requirements. The EPA has provisions will support the fundamental action is the determination that authority to issue a SIP call at any time integrity of the SIP process and affirmative defense provisions are not that it determines a SIP provision is structure, both substantively and with permissible in SIP provisions. Since the substantially inadequate, even if it respect to enforceability. 1999 SSM Guidance, the EPA had mistakenly thought that the SIP 27. Comments that the EPA should interpreted the CAA to allow such provision was adequate at some time in make its interpretation of the CAA with affirmative defense provisions, so long the past. Sources will be on notice of the respect to SSM exemptions applicable as they were limited only to civil SIP call and the state’s administrative only ‘‘prospectively’’ and not require penalties and very narrowly drawn process to respond to it long before they states to correct existing deficient consistent with criteria recommended will be required to comply with a provisions. by the Agency. As fully explained in revised SIP provision, and those sources Comment: Commenters argued that section IV of this document, however, will have ample opportunity to the EPA should not issue a SIP call to the EPA has determined in light of the participate in the rulemakings states for existing SIP provisions and court’s decision in NRDC v. EPA that establishing new requirements at both should only require states to comply the CAA does not permit SIP provisions the state and federal level. with its interpretations of the CAA that operate to alter or eliminate the Finally, the EPA notes, the need for ‘‘prospectively.’’ One commenter argued jurisdiction of the courts to determine states to establish new emission that the SIP provisions at issue in this liability and impose remedies in judicial limitations and change permit terms for SIP call action were approved by the enforcement actions.387 In other many sources should not be viewed as EPA in the past and have largely been respects, this action primarily consists an unusual occurrence. The need to ‘‘upheld through several EPA of the EPA’s taking action to assure that reexamine existing SIP provisions and refinements and guidance on SSM since SIP provisions are consistent with the permit terms applicable to sources in then.’’ The commenter estimated that CAA as the Agency has interpreted it in response to this SIP call action is the proposed SIP call would require the SSM Policy for many years. comparable to the process that states states to reestablish emission limits for In addition, it is not appropriate for would undertake to update their SIPs as thousands of existing sources or could the EPA to allow states to retain necessary to meet new and evolving require existing sources to comply with deficient SIP provisions that would CAA requirements, including future emission limitations that did not continue to excuse existing sources from revised NAAQS. For example, under originally take into account emissions complying with the revised SIP section 110(a)(1) and section 110(a)(2) during SSM events. The commenter provisions in perpetuity or that would states are already required to reexamine characterized the EPA’s action on the only require that future sources comply and potentially to revise their SIP Petition as a change of policy with with such revised SIP provisions. The provisions whenever the EPA which the EPA should only require commenters advocate for promulgates a new or revised NAAQS. states to meet prospectively, putting ‘‘grandfathering’’ that would authorize States already need to reexamine states ‘‘on notice’’ that the EPA will current sources to continue to operate emission limitations required by section evaluate future SIP submissions under a under existing deficient SIP provisions 110(a)(2)(A) and other relevant sections different test applicable only to new (e.g., with exemptions for SSM of the CAA in their SIPs on a regular sources going forward. emissions or with affirmative defense basis as the NAAQS are revised (e.g., the Other commenters argued that the provisions) while requiring only new potential need to revisit what is RACT EPA cannot require states to revise their sources to comply with revised SIP for a specific source category with SIP provisions if this would have the provisions that meet CAA requirements. respect to a new NAAQS), as new legal effect of making existing sources have to The EPA understands the practical requirements are created (e.g. the comply with the revised SIP. According reasons why the commenters make this potential need to address interstate to the commenters, existing sources suggestion, but such an approach would transport including compliance with should be ‘‘grandfathered’’ and should be grossly unfair both to new sources any applicable FIP addressing a SIP not have to change their control and to the communities affected by deficiency with respect to this issue), or strategies or modes of operation to meet emissions from the old sources, as well as new emissions control technologies the revised SIP requirements. The as flatly inconsistent with the commenters asserted that issuance of a are developed (e.g., what is RACT for a pollutant may evolve with technological SIP call without grandfathering existing 387 The EPA notes, however, that many of the sources would ‘‘retroactively’’ require affirmative defense type provisions at issue in this developments). Thus, as a general sources to comply with the new SIP action were also not consistent with the Agency’s matter, states already engage in periodic provisions and ‘‘suddenly’’ render interpretation of the CAA in the 1999 SSM review of their SIP provisions on a Guidance. Thus, even in the absence of the NRDC regular basis, and the potential need to sources noncompliant, even though they v. EPA decision, these provisions were not were in compliance with the SIP when consistent with the EPA’s prior interpretation of the update the emissions limitations they were originally designed, financed CAA for such provisions. applicable to sources and thereafter the

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need to update the permits applicable to state makes the necessary revisions to 1. Automatic Exemption Provisions those sources is part of that process. its SIP provisions, any needed revisions This SIP call action simply directs the to operating permits to reflect the A significant number of provisions affected states to address specific revised SIP provisions will occur in the identified by the Petitioner pertain to deficiencies in their SIP provisions as ordinary course as the state issues new existing SIP provisions that create part of this normal evolutionary process. permits or reviews and revises existing automatic exemptions for excess 28. Comments that directing states to permits. For example, in the case of title emissions during periods of SSM. Some correct their existing SIP provisions will V operating permits, permits with more of these provisions also pertain to require many sources to change terms of than 3 years remaining will be reopened exemptions for excess emissions that their operating permits. to add new applicable requirements occur during maintenance, load change Comment: A number of commenters within 18 months of the promulgation or other types of normal source opposed the February 2013 proposal of the requirements. If a permit has less operation. These provisions typically because of the administrative burden than 3 years remaining, the new provide that a source subject to a the action would impose on air agencies applicable requirement will be added at specific SIP emission limitation is and sources. Commenters asserted that renewal.388 exempted from compliance during SSM, requiring states to remove affirmative so that the excess emissions are defined defense provisions for startup and IX. What is the EPA’s final action for as not violations. Most of these shutdown from SIPs and to develop each of the specific SIP provisions provisions are artifacts of the early alternative emission limitations for such identified in the Petition or by the EPA? phases of the SIP program, approved periods of operation instead is A. Overview of the EPA’s Evaluation of before state and EPA regulators unreasonable. Other commenters argued Specific SIP Provisions recognized the implications of such that requiring removal of the deficient exemptions. Whatever the genesis of SIP provisions would impose enormous In reviewing the Petitioner’s concerns these existing SIP provisions, however, and time-consuming burdens on with respect to the specific SIP these automatic exemptions from permitting authorities and the regulated provisions identified in the Petition, the emission limitations are not consistent community associated with the EPA notes that most of the provisions with the CAA, as the EPA has stated in development of new or revised relate to a small number of common its SSM Policy since at least 1982. emissions limitations for startup and issues. Many of these provisions are as After evaluating the Petition, the EPA shutdown, the revision of SIPs and the old as the original SIPs that the EPA proposed to determine that a number of revision of permits to incorporate such approved in the early 1970s, when the states have existing SIP provisions that revised emision limitations. Another states and the EPA had limited create impermissible automatic commenter asserted that sources only experience in evaluating the provisions’ exemptions for excess emissions during accepted numerical limits in permits adequacy, enforceability and malfunctions or during startup, with the understanding that they also consistency with CAA requirements. shutdown or other types of normal had the benefit of affirmative defenses In some instances the EPA does not source operation. In those instances in the event of exceedances of those agree with the Petitioner’s reading of the where the EPA agreed that a SIP numerical emission limits during provision in question, or with the provision identified by the Petitioner periods of SSM. The commenter thus Petitioner’s conclusion that the contained such an exemption contrary argued that sources would seek to revise provision is inconsistent with the to the requirements of the CAA, the EPA the permit limits in order to account for requirements of the CAA. However, proposed to grant the Petition and the absence of such affirmative given the common issues that arise for accordingly to issue a SIP call to the defenses. multiple states in the Petition as well as Response: The EPA acknowledges the appropriate state. in the EPA’s independent evaluation, concerns raised by commenters there are some overarching conceptual 2. Director’s Discretion Exemption concerning the need for air agencies to points that merit discussion in general Provisions revise the deficient SIP provisions at terms. Thus, this section IX.A of the issue in this action, as well as the need Another category of problematic SIP document provides a general discussion for the EPA to review the resulting SIP provision identified by the Petitioner is revisions. The EPA does not agree, of each of the overarching points, exemptions for excess emissions that, however, with the commenters’ including a summary of what the EPA while not automatic, are exemptions for argument that the need for these proposed to determine with respect to such emissions granted at the discretion administrative actions is a justification the relevant SIP provisions collectively. of state regulatory personnel. In some for leaving the deficient provisions The EPA received comments on the cases, the SIP provision in question may unaddressed. proposed determinations from affected provide some minimal degree of process The EPA also acknowledges that the states, the Petitioner and other and some parameters for the granting of SIP revisions initiated by this SIP call commenters. A detailed discussion of such discretionary exemptions, but the action will result in the removal of the comments received with the EPA’s typical provision at issue allows state deficient provisions such as automatic responses is provided in the Response personnel to decide unilaterally and and discretionary SSM exemptions, to Comment document available in the without meaningful limitations that overly broad enforcement discretion docket for this rulemaking. what would otherwise be a violation of provisions and affirmative defense Sections IX.B through IX.K of this the applicable emission limitation is provisions. These SIP revisions will document name the specific SIP instead exempt. Because the state ultimately need to be reflected in provisions identified in the Petition or personnel have the authority to decide revised operating permit terms for by the EPA, including a summary of that the excess emissions at issue are sources. This SIP call action will not, what the EPA proposed and followed by not a violation of the applicable however, have an automatic impact on the EPA’s stated final action with emission limitation, such a decision any permit terms and conditions, and respect to each SIP provision. would transform the violation into a the resource burden to revise permits nonviolation, thereby barring will be spread over many years. After a 388 See 40 CFR 70.7(f)(1)(i). enforcement by the EPA or others.

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The EPA refers to this type of The EPA determined that a number of are consistent with the EPA’s 1999 SSM provision as a ‘‘director’s discretion’’ states have SIP provisions that, when Guidance for excess emissions during provision, and the EPA interprets the evaluated carefully, could reasonably be SSM events and to issue a SIP call to CAA generally to forbid such provisions construed to allow the state to make states with provisions inconsistent with in SIPs because they have the potential enforcement discretion decisions that the EPA’s interpretation of the CAA. to undermine fundamental statutory would purport to foreclose enforcement The Petitioner drew no distinction objectives such as the attainment and by the EPA under CAA section 113 or between affirmative defense provisions maintenance of the NAAQS and to by citizens under section 304. In those for malfunctions versus affirmative undermine effective enforcement of the instances where the EPA agreed that a defense provisions for startup and SIP. As described in sections VII.C and specific provision could have the effect shutdown or other normal modes of VIII.A.3 of this document, unbounded of impeding adequate enforcement of operation. As explained in section IV.B director’s discretion provisions purport the requirements of the SIP by parties of the February 2013 proposal, the EPA to allow unilateral revisions of approved other than the state, the EPA proposed did make such distinction in its SIP provisions without meeting the to grant the Petition and to take action proposed response to the Petition, at applicable statutory substantive and to rectify the problem. By contrast, that time proposing to revise its SSM procedural requirements for SIP where the EPA’s evaluation indicated Policy to reflect an interpretation of the revisions. The specific SIP provisions at that the existing provision on its face or CAA that affirmative defense provisions issue in the Petition are especially as reasonably construed could not be applicable during startup and shutdown inappropriate because they purport to read to preclude enforcement by parties were not appropriate but reasoning that allow discretionary creation of case-by- other than the state, the EPA proposed affirmative defense provisions remained case exemptions from the applicable to deny the Petition, and the EPA appropriate for violations when due to emission limitations, when the CAA invited comment on this issue in malfunction events. Thus, in the does not permit any such exemptions in particular to assure that the state and February 2013 proposal, the EPA the first instance. The practical impact the EPA have a common understanding proposed to issue a SIP call to a state to of such provisions is that in effect they that the provision does not have any rectify a problem with an affirmative transform an enforcement discretion impact on potential enforcement by the defense provision only if the provision decision by the state (e.g., that the EPA or through a citizen suit. This included an affirmative defense that was excess emission from a given SSM event process was intended to ensure that applicable to excess emissions during should be excused for some reason) into there is no misunderstanding in the startup and shutdown or included an an exemption from compliance that also future that the correct reading of the SIP affirmative defense that was applicable prevents enforcement by the EPA or provision would not bar enforcement by to excess emissions during malfunctions through a citizen suit. The EPA’s the EPA or through a citizen suit when but was inconsistent with the criteria longstanding SSM Policy has the state elected to exercise its own recommended in the EPA’s SSM Policy. Subsequent to that February 2013 interpreted the CAA to preclude SIP enforcement discretion. proposal, a federal court ruled that the provisions in which a state’s exercise of In the February 2013 proposal, the CAA precludes authority of the EPA to its own enforcement discretion bars EPA noted that another method by create affirmative defense provisions enforcement by the EPA or through a which to eliminate any potential applicable to private civil suits. The citizen suit. Where the EPA agreed that ambiguity about the meaning of these enforcement discretion provisions NRDC v. EPA decision pertained to a a SIP provision identified by the would be for the state to revise its SIP challenge to the EPA’s NESHAP Petitioner contained such a to remove the provisions. Because these regulations issued pursuant to CAA discretionary exemption contrary to the provisions are only applicable to the section 112 to regulate hazardous air requirements of the CAA, the EPA state, the EPA’s view was, and still is, pollutants from sources that proposed to grant the Petition and to that the provisions need not be included manufacture Portland cement.389 As call for the state to rectify the problem. within the SIP. Thus, the EPA supports explained in detail in section V of the 3. State-Only Enforcement Discretion states that elect to revise their SIPs to SNPR, the court’s decision in NRDC v. Provisions remove these provisions to avoid any EPA compelled the Agency to revise its unnecessary confusion. interpretation of the CAA concerning The Petitioner identified existing SIP the legal basis for affirmative defense provisions in many states that 4. Affirmative Defense Provisions provisions. As a result, the EPA ostensibly pertain to parameters for the The Petitioner asked the EPA to proposed in the SNPR to further revise exercise of enforcement discretion by rescind its SSM Policy element that its SSM Policy with respect to state personnel for violations due to interpreted the CAA to allow SIPs to affirmative defense provisions excess emissions during SSM events. include affirmative defenses for applicable to excess emissions during The EPA’s SSM Policy has consistently violations due to excess emissions SSM events (as described in section V encouraged states to utilize traditional during any type of SSM events. Related of the SNPR) and to apply its revised enforcement discretion within to this request, the Petitioner asked the interpretation of the CAA to specific appropriate bounds for such violations EPA to find that states with SIPs provisions in the SIPs of particular and, in the 1982 SSM Guidance, containing an affirmative defense to states (as described in section VII of the explicitly recommended criteria that monetary penalties for excess emissions SNPR). states might consider in the event that during SSM events are substantially For some of the affirmative defense they elected to formalize their inadequate because they do not comply provisions identified by the Petitioner, enforcement discretion with provisions with the CAA. If the EPA were to deny the EPA in the SNPR reproposed in the SIP. The intent has been that such the Petitioner’s request that the EPA granting of the Petition but proposed a enforcement discretion provisions in a revise its interpretation of the CAA, the revised basis for its proposed findings of SIP would be ‘‘state-only,’’ meaning that Petitioner asked that the EPA in the inadequacy and SIP calls. For other the provisions apply only to the state’s alternative require states with SIPs that affirmative defense provisions identified own enforcement personnel and not to contain such affirmative defense the EPA or to others. provisions to revise them so that they 389 NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).

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by the Petitioner, the EPA in the SNPR air pollution control equipment.’’ The these three provisions are no longer reversed its prior proposed denial of the Petitioner argued that the challenged components of the EPA-approved SIP Petition, and it newly proposed findings provisions provide an automatic for the state of New Hampshire, the of inadequacy and SIP calls. Further, for exemption for excess emissions during Petition is moot with respect to these some affirmative defense provisions that the first 48 hours when any component provisions and there is no need for a SIP were not explicitly identified by the part of air pollution control equipment call with respect to these no longer Petitioner, the EPA in the SNPR malfunctions (N.H. Code R. Env-A extant provisions. proposed findings of inadequacy and 902.03) and further provide that ‘‘[t]he SIP calls for additional affirmative director may . . . grant an extension of In this final action, the EPA is defense provisions that were not time or a temporary variance’’ for excess denying the Petition with respect to explicitly identified by the Petitioner. emissions outside of the initial 48-hour N.H. Code R. Env-A 902.03, N.H. Code time period (N.H. Code R. Env-A R. Env-A 902.04, N.H. Code R. Env-A B. Affected States in EPA Region I 902.04). Second, the Petitioner objected 1203.05 and N.H. Code R. Env-A 1. Maine to two specific provisions in the New 1207.02. Please refer to the Response to Hampshire SIP that provide source- Comment document available in the As described in section IX.B.1 of the specific exemptions for periods of docket for this rulemaking concerning February 2013 proposal, the Petitioner startup for ‘‘any process, manufacturing any comments specific to the New first objected to a specific provision in and service industry’’ (N.H. Code R. Hampshire SIP that the EPA received the Maine SIP that provides an Env-A 1203.05) and for pre-June 1974 exemption for certain boilers from and considered during the development asphalt plants during startup, provided of this rulemaking. otherwise applicable SIP visible they are at 60-percent opacity for no emission limits during startup and more than 3 minutes (N.H. Code R. Env- 3. Rhode Island shutdown (06–096–101 Me. Code R. A 1207.02). § 3). Second, the Petitioner objected to For reasons explained fully in the As described in section IX.B.3 of the a provision that empowers the state to February 2013 proposal, the EPA February 2013 proposal, the Petitioner ‘‘exempt emissions occurring during proposed to grant the Petition with objected to a generally applicable periods of unavoidable malfunction or respect to N.H. Code R. Env-A 902.03, provision in the Rhode Island SIP that unplanned shutdown from civil penalty N.H. Code R. Env-A 1203.05 and N.H. allows for a case-by-case petition under section 349, subsection 2’’ (06– Code R. Env-A 902.04. Also for reasons procedure whereby a source can obtain 096–101 Me. Code R. § 4). explained fully in the February 2013 a variance from state personnel under For reasons explained fully in the proposal, the EPA proposed to deny the R.I. Gen. Laws § 23–23–15 to continue February 2013 proposal, the EPA Petition with respect to N.H. Code R. to operate during a malfunction of its proposed to grant the Petition with Env-A 1207.02. control equipment that lasts more than respect to 06–096–101 Me. Code R. § 3 Consequently, the EPA proposed to 24 hours, if the source demonstrates that and 06–096–101 Me. Code R. § 4. find that N.H. Code R. Env-A 902.03, enforcement would constitute undue Consequently, the EPA proposed to N.H. Code R. Env-A 1203.05 and N.H. hardship without a corresponding find that 06–096–101 Me. Code R. § 3 Code R. Env-A 902.04 were benefit (25–4–13 R.I. Code R. § 16.2). and 06–096–101 Me. Code R. § 4 are substantially inadequate to meet CAA substantially inadequate to meet CAA requirements and thus proposed to issue For reasons explained fully in the requirements and thus proposed to issue a SIP call with respect to these February 2013 proposal, the EPA a SIP call with respect to these provisions. Through comments proposed to grant the Petition with provisions. submitted on the February 2013 respect to 25–4–13 R.I. Code R. § 16.2. In this final action, the EPA is proposal, however, the EPA has Consequently, the EPA proposed to granting the Petition with respect to 06– ascertained that the versions of N.H. find that 25–4–13 R.I. Code R. § 16.2 is 096–101 Me. Code R. § 3 and 06–096– Code R. Env-A 902.03 and N.H. Code R. substantially inadequate to meet CAA 101 Me. Code R. § 4. Accordingly, the Env-A 902.04 identified in the Petition requirements and thus proposed to issue EPA is finding that these provisions are and evaluated in the February 2013 a SIP call with respect to this provision. substantially inadequate to meet CAA proposal are no longer in the state’s SIP. requirements and the EPA is thus In November 2012, the EPA approved a In this final action, the EPA is issuing a SIP call to Maine to correct its SIP revision that replaced N.H. Code R. granting the Petition with respect to 25– SIP with respect to these provisions. Env-A 902.03 and N.H. Code R. Env-A 4–13 R.I. Code R. § 16.2. Accordingly, This action is fully consistent with what 902.04 with a new version of Env-A 900 the EPA is finding that this provision is the EPA proposed in February 2013. that does not contain the deficient substantially inadequate to meet CAA Please refer to the Response to Comment provisions identified in the February requirements and the EPA is thus document available in the docket for 2013 proposal.390 These provisions no issuing a SIP call with respect to this this rulemaking concerning any longer exist for purposes of state or provision. This action is fully consistent comments specific to the Maine SIP that federal law. In addition, the EPA has with what the EPA proposed in the EPA received and considered during determined that the version of N.H. February 2013. Please refer to the the development of this rulemaking. Code R. Env-A 1203.05 identified in the Response to Comment document 2. New Hampshire Petition and the February 2013 proposal available in the docket for this is no longer in the state’s SIP as a result rulemaking concerning any comments As described in section IX.B.2 of the of another SIP revision.391 Because specific to the Rhode Island SIP that the February 2013 proposal, the Petitioner EPA received and considered during the objected to two generally applicable 390 See ‘‘Approval and Promulgation of Air development of this rulemaking. provisions in the New Hampshire SIP Quality Implementation Plans; New Hampshire; that allow emissions in excess of Reasonably Available Control Technology for the 1997 8-Hour Ozone Standard; Direct final rule,’’ 77 Reasonably Available Control Technology Update otherwise applicable SIP emission FR 66388 (November 5, 2012). To Address Control Techniques Guidelines Issued limitations during ‘‘malfunction or 391 See ‘‘Approval and Promulgation of Air in 2006, 2007, and 2008; Direct final rule,’’ 77 FR breakdown of any component part of the Quality Implementation Plans; New Hampshire; 66921 (November 8, 2012).

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C. Affected State in EPA Region II D. Affected States in EPA Region III 2. District of Columbia New Jersey 1. Delaware As described in section IX.D.2 of the As described in section IX.D.1 of the February 2013 proposal, the Petitioner As described in section IX.C.1 of the objected to five provisions in the February 2013 proposal, the Petitioner February 2013 proposal, the Petitioner objected to seven provisions in the District of Columbia (DC) SIP as being objected to two specific provisions in inconsistent with the CAA and the the New Jersey SIP that allow for Delaware SIP that provide exemptions during startup and shutdown from the EPA’s SSM Policy. The Petitioner first automatic exemptions for excess objected to a generally applicable emissions during emergency situations. otherwise applicable SIP emission limitations. The seven source-specific provision in the DC SIP that allows for The Petitioner objected to the first discretionary exemptions during provision because it provides industrial and pollutant-specific provisions that provide exemptions during periods of periods of maintenance or malfunction process units that have the potential to (D.C. Mun. Regs. tit. 20 § 107.3). emit sulfur compounds an exemption startup and shutdown are: 7–1100–1104 Del. Code Regs § 1.5 (Particulate Secondly, the Petitioner objected to the from the otherwise applicable sulfur alternative limitations on stationary emission limitations where ‘‘[t]he Emissions from Fuel Burning Equipment); 7–1100–1105 Del. Code sources for visible emissions during discharge from any stack or chimney periods of ‘‘start-up, cleaning, soot [has] the sole function of relieving Regs § 1.7 (Particulate Emissions from Industrial Process Operations); 7–1100– blowing, adjustment of combustion pressure of gas, vapor or liquid under controls, or malfunction,’’ (D.C. Mun. abnormal emergency conditions’’ (N.J. 1108 Del. Code Regs § 1.2 (Sulfur Dioxide Emissions from Fuel Burning Regs. tit. 20 § 606.1) and, for fuel- Admin. Code 7:27–7.2(k)(2)). The burning equipment placed in initial Petitioner objected to the second Equipment); 7–1100–1109 Del. Code Regs § 1.4 (Emissions of Sulfur operation before January 1977, provision because it provides electric alternative limits for visible emissions generating units (EGUs) an exemption Compounds From Industrial Operations); 7–1100–1114 Del. Code during startup and shutdown (D.C. from the otherwise applicable NOX Mun. Regs. tit. 20 § 606.2). The emission limitations when the unit is Regs § 1.3 (Visible Emissions); 7–1100– 1124 Del. Code Regs § 1.4 (Control of Petitioner also objected to the operating at ‘‘emergency capacity,’’ also exemption from emission limitations for known as a ‘‘MEG alert,’’ which is Volatile Organic Compound Emissions); and 7–1100–1142 Del. Code Regs § 2.3.5 emergency standby engines (D.C. Mun. statutorily defined as a period in which Regs. tit. 20 § 805.1(c)(2)). Finally, the one or more EGUs is operating at (Specific Emission Control Requirements). Petitioner objected to the provision in emergency capacity at the direction of the DC SIP that provides an affirmative For reasons explained fully in the the load dispatcher in order to prevent defense for violations of visible February 2013 proposal, the EPA or mitigate voltage reductions or emission limitations during proposed to grant the Petition with interruptions in electric service, or both ‘‘unavoidable malfunction’’ (D.C. Mun. respect to 7–1100–1104 Del. Code Regs (N.J. Admin. Code 7:27–19.1). Regs. tit. 20 § 606.4). § 1.5, 7–1100–1105 Del. Code Regs § 1.7, For reasons explained fully in the 7–1100–1108 Del. Code Regs § 1.2, 7– For reasons explained in the February February 2013 proposal, the EPA 1100–1109 Del. Code Regs § 1.4, 7– 2013 proposal, the EPA proposed to proposed to grant the Petition with 1100–1114 Del. Code Regs § 1.3, 7– grant the Petition with respect to D.C. respect to N.J. Admin. Code 7:27– 1100–1124 Del. Code Regs § 1.4 and 7– Mun. Regs. tit. 20 § 107.3 and D.C. Mun. 7.2(k)(2). Also for reasons explained 1100–1142 Del. Code Regs § 2.3.5. Regs. tit. 20 §§ 606.1 and 606.2. Also for fully in the February 2013 proposal, the Consequently, the EPA proposed to reasons explained in the February 2013 EPA proposed to deny the Petition with proposal, the EPA proposed to deny the respect to N.J. Admin. Code 7:27–19.1. find that 7–1100–1104 Del. Code Regs § 1.5, 7–1100–1105 Del. Code Regs § 1.7, Petition with respect to D.C. Mun. Regs. Consequently, the EPA proposed to 7–1100–1108 Del. Code Regs § 1.2, 7– tit. 20 § 805.1(c)(2). Also for reasons find that N.J. Admin. Code 7:27– 1100–1109 Del. Code Regs § 1.4, 7– explained in the February 2013 7.2(k)(2) is substantially inadequate to 1100–1114 Del. Code Regs § 1.3, 7– proposal, the EPA proposed to grant the meet CAA requirements and thus 1100–1124 Del. Code Regs § 1.4 and 7– petition with respect to D.C. Mun. Regs. proposed to issue a SIP call with respect 1100–1142 Del. Code Regs § 2.3.5 are tit. 20 § 606.4 on the basis that it was to this provision. substantially inadequate to meet CAA not a permissible affirmative defense In this final action, the EPA is requirements and thus proposed to issue provision consistent with the granting the Petition with respect to N.J. a SIP call with respect to these requirements of the CAA as interpreted Admin. Code 7:27–7.2(k)(2) and provisions. in the EPA’s SSM Policy at the time. denying the Petition with respect to N.J. In this final action, the EPA is Subsequently, for reasons explained Admin. Code 7:27–19.1. Accordingly, granting the Petition with respect to 7– in the SNPR, the EPA reproposed the EPA is finding that the provision in 1100–1104 Del. Code Regs § 1.5, 7– granting of the Petition with respect to N.J. Admin. Code 7:27–7.2(k)(2) is 1100–1105 Del. Code Regs § 1.7, 7– the affirmative defense provision in D.C. substantially inadequate to meet CAA 1100–1108 Del. Code Regs § 1.2, 7– Mun. Regs. tit. 20 § 606.4, but it requirements and the EPA is thus 1100–1109 Del. Code Regs § 1.4, 7– proposed to revise the basis for the issuing a SIP call with respect to this 1100–1114 Del. Code Regs § 1.3, 7– finding of substantial inadequacy and provision. This action is fully consistent 1100–1124 Del. Code Regs § 1.4 and 7– the SIP call for this provision. with what the EPA proposed in 1100–1142 Del. Code Regs § 2.3.1.6 Consequently, the EPA proposed to February 2013. Please refer to the (updated to § 2.3.1.6 from earlier find that D.C. Mun. Regs. tit. 20 § 107.3, Response to Comment document identification as § 2.3.5). Accordingly, D.C. Mun. Regs. tit. 20 §§ 606.1 and available in the docket for this the EPA is finding that these provisions 606.2 and D.C. Mun. Regs. tit. 20 § 606.4 rulemaking concerning any comments are substantially inadequate to meet are substantially inadequate to meet specific to the New Jersey SIP that the CAA requirements and the EPA is thus CAA requirements and thus proposed to EPA received and considered during the issuing a SIP call with respect to these issue a SIP call with respect to these development of this rulemaking. provisions. provisions.

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In this final action, the EPA is finding of substantial inadequacy and Petitioner objected to a discretionary granting the Petition with respect to the SIP call for this provision. provision allowing the state to approve D.C. Mun. Regs. tit. 20 § 107.3, D.C. Consequently, the EPA proposed to an alternative visible emission standard Mun. Regs. tit. 20 §§ 606.1 and 606.2 find that 9 Va. Admin. Code § 5–20– during startups and shutdowns for and D.C. Mun. Regs. tit. 20 § 606.4 and 180(G) is substantially inadequate to manufacturing processes and associated is denying the Petition with respect to meet CAA requirements and thus operations (W. Va. Code R. § 45–7–10.4). D.C. Mun. Regs. tit. 20 § 805.1(c)(2). proposed to issue a SIP call with respect The Petitioner argued that such a Accordingly, the EPA is finding that the to this provision. provision ‘‘allows a decision of the state provisions in D.C. Mun. Regs. tit. 20 In this final action, the EPA is to preclude enforcement by EPA and § 107.3, D.C. Mun. Regs. tit. 20 §§ 606.1 granting the Petition with respect to 9 citizens.’’ and 606.2 and D.C. Mun. Regs. tit. 20 Va. Admin. Code § 5–20–180(G) and the For reasons explained in the February § 606.4 are substantially inadequate to EPA is thus issuing a SIP call with 2013 proposal, the EPA proposed to meet CAA requirements and the EPA is respect to this provision. This action is grant the Petition with respect to W. Va. thus issuing a SIP call to the District of fully consistent with what the EPA Code R. § 45–2–9.1, W. Va. Code R. Columbia to correct its SIP with respect proposed in February 2013 as revised in § 45–7–10.3 and W. Va. Code R. § 45– to these provisions. This action is fully the SNPR. Please refer to the Response 40–100.8 on the basis that each of these consistent with what the EPA proposed to Comment document available in the provisions allows for automatic in February 2013 as revised in the docket for this rulemaking concerning exemptions. Also for reasons explained SNPR. Please refer to the Response to any comments specific to the Virginia in the February 2013 proposal, the EPA Comment document available in the SIP that the EPA received and proposed to grant the Petition with docket for this rulemaking concerning considered during the development of respect to W. Va. Code R. § 45–2–10.1, any comments specific to the DC SIP this rulemaking. W. Va. Code R. § 45–3–7.1, W. Va. Code that the EPA received and considered 4. West Virginia R. § 45–5–13.1, W. Va. Code R. § 45–6– during the development of this 8.2, W. Va. Code R. § 45–7–9.1, W. Va. rulemaking. As described in section IX.D.4 of the Code R. § 45–10–9.1 and W. Va. Code R. February 2013 proposal, the Petitioner § 45–21–9.3 on the basis that these 3. Virginia made four types of objections provisions allow for discretionary As described in section IX.D.3 of the identifying inadequacies regarding SSM exemptions from otherwise applicable February 2013 proposal, the Petitioner provisions in West Virginia’s SIP. First, SIP emission limitations. Further, for objected to a generally applicable the Petitioner objected to three specific reasons explained in the February 2013 provision in the Virginia SIP that allows provisions in the West Virginia SIP that proposal, the EPA proposed to grant the for discretionary exemptions during allow for automatic exemptions from Petition with respect to W. Va. Code R. periods of malfunction (9 Va. Admin. emission limitations, standards, and § 45–3–3.2, W. Va. Code R. § 45–2–10.2 Code § 5–20–180(G)). First, the monitoring and recordkeeping and W. Va. Code R. § 45–7–10.4. The W. Petitioner objected because this requirements for excess emission during Va. Code R. § 45–3–3.2 applies to a provision provides an exemption from startup, shutdown, or malfunction (W. broad category of sources and is not the otherwise applicable SIP emission Va. Code R. § 45–2–9.1, W. Va. Code R. narrowly limited to a source category limitations. Second, the Petitioner § 45–7–10.3 and W. Va. Code R. § 45– that uses a specific control strategy, as objected to the discretionary exemption 40–100.8). Second, the Petitioner required by the EPA’s SSM Policy for excess emissions during malfunction objected to seven discretionary interpreting the CAA. Similarly, W. Va. because the provision gives the state the exemption provisions because these Code R. § 45–2–10.2 is inconsistent with authority to determine whether a provisions provide exemptions from the the EPA’s SSM Policy interpreting the violation ‘‘shall be judged to have taken otherwise applicable SIP emission CAA because it is an alternative limit place.’’ Third, the Petitioner argued that limitations. The Petitioner noted that that allows for discretionary exemptions while the regulation provides criteria, the provisions allow a state official to from otherwise applicable SIP emission akin to an affirmative defense, by which ‘‘grant an exception to the otherwise limitations.392 The W. Va. Code R. § 45– the state must make such a judgment applicable visible emissions standards’’ that the event is not a violation, the due to ‘‘unavoidable shortage of fuel’’ or 392 As explained in the February 2013 proposal, criteria ‘‘fall far short of EPA policy at ‘‘any emergency situation or condition the Petitioner specifically focused on concern with the time’’ and the provision ‘‘fails to creating a threat to public safety or W. Va. Code R. § 45–2–10.1, but the same issue affects W. Va. Code R. § 45–2–10.2, and so the EPA establish any procedure through which welfare’’ (W. Va. Code R. § 45–2–10.1), similarly proposed to issue a SIP call with respect the criteria are to be evaluated.’’ to permit excess emissions ‘‘due to to the latter provision. See 78 FR 12459 at 12500, For reasons explained fully in the unavoidable malfunctions of n.111. W. Va. Code R. § 45–2–10.2 is an alternative February 2013 proposal, the EPA equipment’’ (W. Va. Code R. § 45–3–7.1, limit that applies during periods of maintenance. In the February 2013 proposal, the EPA noted that this proposed to grant the Petition with W. Va. Code R. § 45–5–13.1, W. Va. provision was inconsistent with the EPA’s SSM respect to 9 Va. Admin. Code § 5–20– Code R. § 45–6–8.2, W. Va. Code R. Policy interpreting the CAA because it was an 180(G). Also for reasons explained in § 45–7–9.1 and W. Va. Code R. § 45–10– alternative limit that specifically applied during the February 2013 proposal, the EPA 9.1) and to permit exceedances where periods of maintenance. Although the EPA originally contemplated that an alternative emission proposed to grant the Petition with the limit cannot be ‘‘satisfied’’ because limitation could appropriately apply only during respect to this provision on the basis of ‘‘routine maintenance’’ or startup or shutdown, the EPA recognizes in section that it was not a permissible affirmative ‘‘unavoidable malfunction’’ (W. Va. VII.B of this document that it may be appropriate defense provision consistent with the Code R. § 45–21–9.3). Third, the for an air agency to establish alternative emission limitations that apply during modes of source requirements of the CAA as interpreted Petitioner objected to the alternative operation other than during startup and shutdown, in the EPA’s SSM Policy. limit imposed on hot mix asphalt plants but any such alternative emission limitations Subsequently, for reasons explained during periods of startup and shutdown should be developed using the same criteria that the in the SNPR, the EPA reproposed in W. Va. Code R. § 45–3–3.2 because it EPA recommends for those applicable during startup and shutdown. The alternative emission granting of the Petition with respect to was ‘‘not sufficiently justified’’ under limitation applicable during maintenance does not 9 Va. Admin. Code § 5–20–180(G), but the EPA’s SSM Policy regarding source appear to have been developed using the it proposed to revise the basis for the category-specific rules. Fourth, the Continued

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7–10.4 allows state officials the EPA received and considered during the to the three provisions that create the discretion to establish alternative visible development of this rulemaking. exemptions, the Petitioner noted that emissions standards during startup and the related provision in Fla. Admin. E. Affected States and Local shutdown upon application. Code Ann Rule 62–210.700(4) reduces Jurisdictions in EPA Region IV Subsequently, for reasons explained the potential scope of the exemptions in fully in the SNPR, the EPA identified 1. Alabama the other three provisions if the excess one affirmative defense provision in the As described in section IX.E.1 of the emissions at issue are caused entirely or West Virginia SIP in W. Va. Code R. February 2013 proposal, the Petitioner in part by things such as poor § 45–2–9.4 that was not identified by the objected to two generally applicable maintenance but that it does not Petitioner, and the EPA proposed to provisions in the Alabama SIP that eliminate the impermissible exemptions. make a finding of substantial allow for discretionary exemptions For reasons explained fully in the inadequacy and to issue a SIP call for during startup, shutdown or load this provision. February 2013 proposal, the EPA change (Ala Admin Code Rule 335–3– proposed to grant the Petition with Consequently, the EPA proposed to 14–.03(1)(h)(1)), and during emergencies respect to Fla. Admin. Code Ann Rule find that W. Va. Code R. § 45–2–9.1, W. (Ala Admin Code Rule 335–3–14– 62–210.700(1), Fla. Admin. Code Ann Va. Code R. § 45–7–10.3, W. Va. Code R. .03(1)(h)(2)). Rule 62–210.700(2), Fla. Admin. Code § 45–40–100.8, W. Va. Code R. § 45–2– For reasons explained fully in the Ann Rule 62–210.700(3) and Fla. 10.1, W. Va. Code R. § 45–3–7.1, W. Va. February 2013 proposal, the EPA Admin. Code Ann Rule 62–210.700(4). Code R. § 45–5–13.1, W. Va. Code R. proposed to grant the Petition with Consequently, the EPA proposed to § 45–6–8.2, W. Va. Code R. § 45–7–9.1, respect to Ala Admin Code Rule 335–3– find that Fla. Admin. Code Ann Rule W. Va. Code R. § 45–10–9.1, W. Va. 14–.03(1)(h)(1) and Ala Admin Code 62–210.700(1), Fla. Admin. Code Ann Code R. § 45–21–9.3, W. Va. Code R. Rule 335–3–14–.03(1)(h)(2). Rule 62–210.700(2), Fla. Admin. Code § 45–3–3.2 and W. Va. Code R. § 45–7– Consequently, the EPA proposed to Ann Rule 62–210.700(3) and Fla. 10.4, which are provisions identified by find that Ala Admin Code Rule 335–3– Admin. Code Ann Rule 62–210.700(4) the Petitioner, and W. Va. Code R. § 45– 14–.03(1)(h)(1) and Ala Admin Code are substantially inadequate to meet 2–10.2 and W. Va. Code R. § 45–2–9.4, Rule 335–3–14–.03(1)(h)(2) are CAA requirements and thus proposed to which are provisions identified by the substantially inadequate to meet CAA issue a SIP call with respect to these EPA, are substantially inadequate to requirements and thus proposed to issue provisions. meet CAA requirements and thus a SIP call with respect to these In this final action, the EPA is proposed to issue a SIP call with respect provisions. granting the Petition with respect to Fla. to these provisions. In this final action, the EPA is Admin. Code Ann Rule 62–210.700(1), In this final action, the EPA is granting the Petition with respect to Ala Fla. Admin. Code Ann Rule 62– granting the Petition with respect to the Admin Code Rule 335–3–14–.03(1)(h)(1) 210.700(2), Fla. Admin. Code Ann Rule West Virginia SIP provisions identified and Ala Admin Code Rule 335–3–14– 62–210.700(3) and Fla. Admin. Code by the Petitioner. Accordingly, the EPA .03(1)(h)(2). Accordingly, the EPA is Ann Rule 62–210.700(4). Accordingly, is finding that the provisions in W. Va. finding that these provisions are the EPA is finding that these provisions Code R. § 45–2–9.1, W. Va. Code R. substantially inadequate to meet CAA are substantially inadequate to meet § 45–7–10.3, W. Va. Code R. § 45–40– requirements and the EPA is thus CAA requirements and the EPA is thus 100.8, W. Va. Code R. § 45–2–10.1, W. issuing a SIP call with respect to these issuing a SIP call with respect to these Va. Code R. § 45–3–7.1, W. Va. Code R. provision. This action is fully consistent provisions. This action is fully § 45–5–13.1, W. Va. Code R. § 45–6–8.2, with what the EPA proposed in consistent with what the EPA proposed W. Va. Code R. § 45–7–9.1, W. Va. Code February 2013. Please refer to the in February 2013. Please refer to the R. § 45–10–9.1, W. Va. Code R. § 45–21– Response to Comment document Response to Comment document 9.3, W. Va. Code R. § 45–3–3.2 and W. available in the docket for this available in the docket for this Va. Code R. § 45–7–10.4, which are rulemaking concerning any comments rulemaking concerning any comments provisions identified by the Petitioner, specific to the Alabama SIP that the EPA specific to the Florida SIP that the EPA and W. Va. Code R. § 45–2–10.2 and W. received and considered during the received and considered during the Va. Code R. § 45–2–9.4, which are development of this rulemaking. development of this rulemaking. provisions identified by the EPA, are 2. Florida 3. Georgia substantially inadequate to meet CAA requirements. The EPA is thus issuing a As described in section IX.E.2 of the As described in section IX.E.3 of the SIP call to West Virginia to correct its February 2013 proposal, the Petitioner February 2013 proposal, the Petitioner SIP with respect to these provisions. objected to three specific provisions in objected to a provision in the Georgia This action is fully consistent with what the Florida SIP that allow for generally SIP that provides for exemptions for the EPA proposed in February 2013 as applicable automatic exemptions for excess emissions during SSM under revised in the SNPR. Please refer to the excess emissions during SSM (Fla. certain circumstances (Ga. Comp. R. & Response to Comment document Admin. Code Ann Rule 62–210.700(1)), Regs. 391–3–1–.02(2)(a)(7)). The available in the docket for this for fossil fuel steam generators during Petitioner acknowledged that this rulemaking concerning any comments startup and shutdown (Fla. Admin. provision of the Georgia SIP includes specific to the West Virginia SIP that the Code Ann Rule 62–210.700(2)), and for some conditions for when sources may such sources during boiler cleaning and be entitled to seek the exemption under load change (Fla. Admin. Code Ann state law, such as when the source has recommended criteria for such alternative emission 393 limitations. In addition, the EPA finds that this Rule 62–210.700(3)). After objecting provision, like W. Va. Code R. § 45–2–10.1, is also correctly recognized that the EPA intended to deficient because it allows for discretionary 393 The EPA notes that in the February 2013 instead refer to Fla. Admin. Code Ann Rule exemptions from otherwise applicable SIP emission proposal, it incorrectly cited Fla. Admin. Code Ann 52.210.700. See, e.g., comment letter received from limitations. As noted in the proposal, such Rule 52.201.700 when it intended to cite Rule the Florida Department of Environmental provisions that authorize director’s discretion 52.210.700. The transposition of numbers was a Protection, May 13, 2013, in the rulemaking docket exemptions are impermissible in SIPs. typographical error. Commenters on the proposal at EPA–HQ–OAR–2012–0322–0878.

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used ‘‘best operational practices’’ to 4. Kentucky Petition.394 As explained in the SNPR, minimize emissions during the SSM the state of Kentucky has revised the SIP As described in section IX.E.4 of the event. provisions applicable to Jefferson February 2013 proposal, the Petitioner First, the Petitioner objected because County and eliminated the SIP objected to a generally applicable the provision creates an exemption from inadequacies identified in the February provision that allows discretionary the applicable emission limitations by 2013 proposal document. The EPA has exemptions from otherwise applicable providing that the excess emissions already approved the necessary SIP SIP emission limitations in Kentucky’s ‘‘shall be allowed’’ subject to certain revisions.395 Accordingly, the EPA’s SIP (401 KAR 50:055 § 1(1)). conditions. Second, the Petitioner final action on the Petition does not argued that although the provision For reasons explained fully in the include a finding of substantial provides some ‘‘substantive criteria,’’ February 2013 proposal, the EPA inadequacy and SIP call for Jefferson the provision does not meet the criteria proposed to grant the Petition with County, Kentucky. the EPA recommended at the time for an respect to 401 KAR 50:055 § 1(1). In this final action, the EPA is affirmative defense provision consistent Consequently, the EPA proposed to denying the Petition with respect to with the requirements of the CAA in the find that 401 KAR 50:055 § 1(1) is Jefferson County Air Regulations 1.07. EPA’s SSM Policy. Third, the Petitioner substantially inadequate to meet CAA This action is fully consistent with what asserted that the provision is not a requirements and thus proposed to issue the EPA proposed in February 2013 as permissible ‘‘enforcement discretion’’ a SIP call with respect to this provision. revised in the SNPR. Please refer to the provision applicable only to state In this final action, the EPA is Response to Comment document personnel, because it ‘‘is susceptible to granting the Petition with respect to 401 available in the docket for this interpretation as an enforcement KAR 50:055 § 1(1). Accordingly, the rulemaking concerning any comments exemption, precluding EPA and citizen EPA is finding that this provision is specific to the Kentucky SIP that the enforcement as well as state substantially inadequate to meet CAA EPA received and considered during the enforcement.’’ requirements and the EPA is thus development of this rulemaking. For reasons explained in the February issuing a SIP call with respect to this 6. Mississippi provision. This action is fully consistent 2013 proposal, the EPA proposed to As described in section IX.E.6 of the grant the Petition with respect to Ga. with what the EPA proposed in February 2013. Please refer to the February 2013 proposal, the Petitioner Comp. R. & Regs. 391–3–1–.02(2)(a)(7). objected to two generally applicable Also for reasons explained in the Response to Comment document available in the docket for this provisions in the Mississippi SIP that February 2013 proposal, the EPA allow for affirmative defenses for proposed to grant the Petition with rulemaking concerning any comments specific to the Kentucky SIP that the violations of otherwise applicable SIP respect to this provision on the basis emission limitations during periods of that it was not a permissible affirmative EPA received and considered during the development of this rulemaking. upset, i.e., malfunctions (11–1–2 Miss. defense provision consistent with the Code R. § 10.1) and unavoidable requirements of the CAA and the EPA’s 5. Kentucky: Jefferson County maintenance (11–1–2 Miss. Code R. recommendations in the EPA’s SSM As described in section IX.E.5 of the § 10.3). First, the Petitioner objected to Policy at the time. both of these provisions based on its Subsequently, for reasons explained February 2013 proposal, the Petitioner objected to a generally applicable assertion that the CAA allows no in the SNPR, the EPA reproposed affirmative defense provisions in SIPs. granting of the Petition with respect to provision in the Jefferson County Air Regulations 1.07 because it provided for Second, the Petitioner asserted that even Ga. Comp. R. & Regs. 391–3–1– if affirmative defense provisions were .02(2)(a)(7), but it proposed to revise the discretionary exemptions from compliance with emission limitations permissible under the CAA, the basis for the finding of substantial affirmative defenses in these provisions inadequacy and the SIP call for this during SSM. The provision required different demonstrations for exemptions ‘‘fall far short of the EPA policy at the provision. time.’’ The Petitioner also objected to a Consequently, the EPA proposed to for excess emissions during startup and shutdown (Regulation 1.07 § 3), generally applicable provision that find that Ga. Comp. R. & Regs. 391–3– provides an exemption from otherwise 1–.02(2)(a)(7) is substantially inadequate malfunction (Regulation 1.07 § 4 and § 7) and emergency (Regulation 1.07 § 5 applicable SIP emission limitations to meet CAA requirements and thus during startup and shutdown (11–1–2 proposed to issue a SIP call with respect and § 7). Second, the Petitioner objected to the affirmative defense for Miss. Code R. § 10.2). to this provision. For reasons explained in the February In this final action, the EPA is emergencies in Jefferson County Air Regulations 1.07. 2013 proposal, the EPA proposed to granting the Petition with respect to Ga. grant the Petition with respect to 11–1– For reasons explained in the February Comp. R. & Regs. 391–3–1–.02(2)(a)(7). 2 Miss. Code R. § 10.1 and 11–1–2 Miss. 2013 proposal, the EPA proposed to Accordingly, the EPA is finding that this Code R. § 10.3. Also for reasons grant the Petition with respect to provision is substantially inadequate to explained in the February 2013 provisions in the Jefferson County Air meet CAA requirements and the EPA is proposal, the EPA proposed to grant the Regulations 1.07. thus issuing a SIP call with respect to petition with respect to these provisions this provision. This action is fully Subsequently, for reasons explained on the basis that they were not consistent with what the EPA proposed fully in the SNPR, the EPA reversed its appropriate as an affirmative defense in February 2013 as revised in the prior proposed granting of the Petition provisions because they were SNPR. Please refer to the Response to with respect to Jefferson County Air Comment document available in the Regulations 1.07. For Jefferson County, 394 See SNPR, 79 FR 55919 at 55925. docket for this rulemaking concerning Kentucky, the provisions for which the 395 See Approval and Promulgation of any comments specific to the Georgia EPA proposed in February 2013 to grant Implementation Plans; Kentucky; Approval of SIP that the EPA received and the Petition were subsequently removed Revisions to the Jefferson County Portion of the from the SIP. Thus, in the SNPR, the Kentucky SIP; Emissions During Startups, considered during the development of Shutdowns, and Malfunctions, 79 FR 33101 (June this rulemaking. EPA proposed instead to deny the 10, 2014).

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inconsistent with fundamental N.C. Admin. Code 2D.0535(c) and 15A characterized these provisions as requirements of the CAA. Also for N.C. Admin. Code 2D.0535(g). providing exemptions from opacity reasons explained fully in the February Accordingly, the EPA is finding that limits for fuel-burning operations for 2013 proposal, the EPA proposed to these provisions are substantially excess emissions that occur during grant the Petition with respect to 11–1– inadequate to meet CAA requirements startup or shutdown (S.C. Code Ann. 2 Miss. Code R. § 10.2. and the EPA is thus issuing a SIP call Regs. 61–62.5 St 1(C)), exemptions from Subsequently, for reasons explained with respect to these provisions. This NOX limits for special-use burners that in the SNPR, the EPA reproposed action is fully consistent with what the are operated less than 500 hours per granting of the Petition with respect to EPA proposed in February 2013. Please year (S.C. Code Ann. Regs. 61–62.5 St the affirmative defense provisions in refer to the Response to Comment 5.2(I)(b)(14)) and exemptions from 11–1–2 Miss. Code R. § 10.1 and 11–1– document available in the docket for sulfur limits for kraft pulp mills for 2 Miss. Code R. § 10.3, but it proposed this rulemaking concerning any excess emissions that occur during SSM to revise the basis for the finding of comments specific to the North Carolina events (S.C. Code Ann. Regs. St substantial inadequacy and the SIP call SIP that the EPA received and 4(XI)(D)(4)). for these provisions. considered during the development of For reasons explained fully in the Consequently, the EPA proposed to this rulemaking. find that 11–1–2 Miss. Code R. § 10.1, February 2013 proposal, the EPA 11–1–2 Miss. Code R. § 10.2 and 11–1– 8. North Carolina: Forsyth County proposed to grant the Petition with 2 Miss. Code R. § 10.3 are substantially As described in section IX.E.8 of the respect to S.C. Code Ann. Regs. 61–62.5 inadequate to meet CAA requirements February 2013 proposal, the Petitioner St 1(C) and S.C. Code Ann. Regs. St and thus proposed to issue a SIP call objected to two generally applicable 4(XI)(D)(4). Also for reasons explained with respect to these provisions. provisions in the Forsyth County Code fully in the February 2013 proposal, the In this final action, the EPA is that provide exemptions for emissions EPA proposed to deny the Petition with granting the Petition with respect to 11– exceeding otherwise applicable SIP respect to S.C. Code Ann. Regs. 61–62.5 1–2 Miss. Code R. § 10.1, 11–1–2 Miss. emission limitations at the discretion of St 5.2(I)(b)(14). Code R. § 10.2 and 11–1–2 Miss. Code a local official during malfunctions Subsequently, for reasons explained R. § 10.3. Accordingly, the EPA is (Forsyth County Code, ch. 3, 3D.0535(c)) fully in the SNPR, the EPA identified finding that these provisions are and startup and shutdown (Forsyth one affirmative defense provision in the substantially inadequate to meet CAA County Code, ch. 3, 3D.0535(g)). South Carolina SIP in S.C. Code Ann. requirements and the EPA is thus For reasons explained fully in the Regs. 62.1, Section II(G)(6) that was not issuing a SIP call with respect to these February 2013 proposal, the EPA identified by the Petitioner, and the EPA provisions. This action is fully proposed to grant the Petition with proposed to make a finding of consistent with what the EPA proposed respect to Forsyth County Code, ch. 3, substantial inadequacy and to issue a in February 2013 as revised in the 3D.0535(c) and Forsyth County Code, SIP call for this provision. SNPR. Please refer to the Response to ch. 3, 3D.0535(g). Consequently, the EPA proposed to Comment document available in the Consequently, the EPA proposed to find that the provisions in S.C. Code docket for this rulemaking concerning find that Forsyth County Code, ch. 3, Ann. Regs. 61–62.5 St 1(C), S.C. Code any comments specific to the 3D.0535(c) and Forsyth County Code, Ann. Regs. St 4(XI)(D)(4) and S.C. Code Mississippi SIP that the EPA received ch. 3, 3D.0535(g) are substantially Ann. Regs. 62.1, Section II(G)(6) are and considered during the development inadequate to meet CAA requirements substantially inadequate to meet CAA of this rulemaking. and thus proposed to issue a SIP call requirements and thus proposed to issue with respect to these provisions. a SIP call with respect to these 7. North Carolina In this final action, the EPA is provisions. As described in section IX.E.7 of the granting the Petition with respect to February 2013 proposal, the Petitioner Forsyth County Code, ch. 3, 3D.0535(c) In this final action, the EPA is objected to two generally applicable and Forsyth County Code, ch. 3, granting the Petition with respect to S.C. provisions in the North Carolina SIP 3D.0535(g). Accordingly, the EPA is Code Ann. Regs. 61–62.5 St 1(C), S.C. that provide exemptions for emissions finding that these provisions are Code Ann. Regs. St 4(XI)(D)(4) and S.C. exceeding otherwise applicable SIP substantially inadequate to meet CAA Code Ann. Regs. 62.1, Section II(G)(6) emission limitations at the discretion of requirements and the EPA is thus and denying the Petition with respect to the state agency during malfunctions issuing a SIP call with respect to these S.C. Code Ann. Regs. 61–62.5 St (15A N.C. Admin. Code 2D.0535(c)) and provisions. This action is fully 5.2(I)(b)(14). Accordingly, the EPA is during startup and shutdown (15A N.C. consistent with what the EPA proposed finding that the provisions in S.C. Code Admin. Code 2D.0535(g)). in February 2013. Please refer to the Ann. Regs. 61–62.5 St 1(C), S.C. Code For reasons explained fully in the Response to Comment document Ann. Regs. St 4(XI)(D)(4) and S.C. Code February 2013 proposal, the EPA available in the docket for this Ann. Regs. 62.1, Section II(G)(6) are proposed to grant the Petition with rulemaking concerning any comments substantially inadequate to meet CAA respect to 15A N.C. Admin. Code specific to the North Carolina SIP that requirements and the EPA is thus 2D.0535(c) and 15A N.C. Admin. Code the EPA received and considered during issuing a SIP call with respect to these 2D.0535(g). the development of this rulemaking. provisions. This action is fully Consequently, the EPA proposed to consistent with what the EPA proposed find that 15A N.C. Admin. Code 9. South Carolina in February 2013 as revised in the 2D.0535(c) and 15A N.C. Admin. Code As described in section IX.E.9 of the SNPR. Please refer to the Response to 2D.0535(g) are substantially inadequate February 2013 proposal, the Petitioner Comment document available in the to meet CAA requirements and thus objected to three provisions in the South docket for this rulemaking concerning proposed to issue a SIP call with respect Carolina SIP, arguing that they any comments specific to the South to these provisions. contained impermissible source Carolina SIP that the EPA received and In this final action, the EPA is category- and pollutant-specific considered during the development of granting the Petition with respect to 15A exemptions. The Petitioner this rulemaking.

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10. Tennessee a citizen enforcement action (Knox meet CAA requirements and the EPA is As described in section IX.E.10 of the County Regulation 32.1(C)). The thus issuing a SIP call with respect to February 2013 proposal, the Petitioner provision specifies that ‘‘[a] this provision. This action is fully objected to three provisions in the determination that there has been a consistent with what the EPA proposed Tennessee SIP. First, the Petitioner violation of these regulations or orders in February 2013. Please refer to the objected to two provisions that issued pursuant thereto shall not be Response to Comment document authorize a state official to decide used in any law suit brought by any available in the docket for this private citizen.’’ whether to ‘‘excuse or proceed upon’’ rulemaking concerning any comments For reasons explained fully in the (Tenn. Comp. R. & Regs. 1200–3–20– specific to the Tennessee SIP that the February 2013 proposal, the EPA .07(1)) violations of otherwise EPA received and considered during the proposed to grant the Petition with development of this rulemaking. applicable SIP emission limitations that respect to Knox County Regulation occur during ‘‘malfunctions, startups, 32.1(C). For instance, the regulation was F. Affected States in EPA Region V and shutdowns’’ (Tenn. Comp. R. & inconsistent with requirements related 1. Illinois Regs. 1200–3–20–.07(3)). Second, the to credible evidence. Petitioner objected to a provision that Consequently, the EPA proposed to As described in section IX.F.1 of the excludes excess visible emissions from find that Knox County Regulation February 2013 proposal, the Petitioner the requirement that the state 32.1(C) is substantially inadequate to objected to three generally applicable automatically issue a notice of violation meet CAA requirements and thus provisions in the Illinois SIP which for all excess emissions (Tenn. Comp. R. proposed to issue a SIP call with respect together have the effect of providing & Regs. 1200–3–5–.02(1)). This to this provision. discretionary exemptions from provision states that ‘‘due allowance In this final action, the EPA is otherwise applicable SIP emission may be made for visible emissions in granting the Petition with respect to limitations. The Petitioner noted that excess of that permitted in this chapter Knox County Regulation 32.1(C). the provisions invite sources to request, which are necessary or unavoidable due Accordingly, the EPA is finding that this during the permitting process, advance to routine startup and shutdown provision is substantially inadequate to permission to continue to operate conditions.’’ meet CAA requirements and the EPA is during a malfunction or breakdown, For reasons explained fully in the thus issuing a SIP call with respect to and, similarly to request advance February 2013 proposal, the EPA this provision. This action is fully permission to ‘‘violate’’ otherwise proposed to grant the Petition with consistent with what the EPA proposed applicable emission limitations during respect to Tenn. Comp. R. & Regs. 1200– in February 2013. Please refer to the startup (Ill. Admin. Code tit. 35 3–20–.07(1), Tenn. Comp. R. & Regs. Response to Comment document § 201.261). The Illinois SIP provisions 1200–3–20–.07(3) and Tenn. Comp. R. & available in the docket for this establish criteria that a state official Regs. 1200–3–5–.02(1). rulemaking concerning any comments must consider before granting the Consequently, the EPA proposed to specific to the Tennessee SIP that the advance permission to violate the find that Tenn. Comp. R. & Regs. 1200– EPA received and considered during the emission limitations (Ill. Admin. Code 3–20–.07(1), Tenn. Comp. R. & Regs. development of this rulemaking. tit. 35 § 201.262). However, the 1200–3–20–.07(3) and Tenn. Comp. R. & Petitioner asserted, the provisions state Regs. 1200–3–5–.02(1) are substantially 12. Tennessee: Shelby County that, once granted, the advance inadequate to meet CAA requirements As described in section IX.E.12 of the permission to violate the emission and thus proposed to issue a SIP call February 2013 proposal, the Petitioner limitations ‘‘shall be a prima facie with respect to these provisions. objected to a provision in the Shelby defense to an enforcement action’’ (Ill. In this final action, the EPA is County Code (Shelby County Code § 16– Admin. Code tit. 35 § 201.265). granting the Petition with respect to 87) that addresses enforcement for Further, the Petitioner objected to the Tenn. Comp. R. & Regs. 1200–3–20– excess emissions that occur during use of the term ‘‘prima facie defense’’ in .07(1), Tenn. Comp. R. & Regs. 1200–3– ‘‘malfunctions, startups, and Ill. Admin. Code tit. 35 § 201.265, 20–.07(3) and Tenn. Comp. R. & Regs. shutdowns’’ by incorporating by arguing that the term is ‘‘ambiguous in 1200–3–5–.02(1). Accordingly, the EPA reference the state’s provisions in Tenn. its operation.’’ The Petitioner argued is finding that these provisions are Comp. R. & Regs. 1200–3–20. Shelby that the provision is not clear regarding substantially inadequate to meet CAA County Code § 16–87 provides that ‘‘all whether the defense is to be evaluated requirements and the EPA is thus such additions, deletions, changes and ‘‘in a judicial or administrative issuing a SIP call with respect to these amendments as may subsequently be proceeding or whether the Agency provisions. This action is fully made’’ to Tennessee’s regulations will determines its availability.’’ Allowing consistent with what the EPA proposed automatically become part of the Shelby defenses to be raised in these undefined in February 2013. Please refer to the County Code. contexts, the Petitioner argued, is Response to Comment document For reasons explained fully in the ‘‘inconsistent with the enforcement available in the docket for this February 2013 proposal, the EPA structure of the Clean Air Act.’’ rulemaking concerning any comments proposed to grant the Petition with For reasons explained in the February specific to the Tennessee SIP that the respect to Shelby County Code § 16–87. 2013 proposal, the EPA proposed to EPA received and considered during the Consequently, the EPA proposed to grant the Petition with respect to Ill. development of this rulemaking. find that Shelby County Code § 16–87 is Admin. Code tit. 35 § 201.261, Ill. substantially inadequate to meet CAA Admin. Code tit. 35 § 201.262 and Ill. 11. Tennessee: Knox County requirements and thus proposed to issue Admin. Code tit. 35 § 201.265. As described in section IX.E.11 of the a SIP call with respect to this provision. Subsequently, for reasons explained February 2013 proposal, the Petitioner In this final action, the EPA is fully in the SNPR, the EPA reproposed objected to a provision in the Knox granting the Petition with respect to granting of the Petition with respect to County portion of the Tennessee SIP Shelby County Code § 16–87. the affirmative defense provisions in Ill. that bars evidence of a violation of SIP Accordingly, the EPA is finding that this Admin. Code tit. 35 § 201.261, Ill. emission limitations from being used in provision is substantially inadequate to Admin. Code tit. 35 § 201.262 and Ill.

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Admin. Code tit. 35 § 201.265, but it Subsequently, for reasons explained docket for this rulemaking concerning proposed to revise the basis for the fully in the SNPR, the EPA reproposed any comments specific to the Michigan finding of substantial inadequacy and granting of the Petition with respect to SIP that the EPA received and the SIP call for these provisions. 326 Ind. Admin. Code 1–6–4(a), but it considered during the development of Consequently, the EPA proposed to proposed to revise the basis for the this rulemaking. find that Ill. Admin. Code tit. 35 finding of substantial inadequacy and 4. Minnesota § 201.261, Ill. Admin. Code tit. 35 the SIP call for this provision. § 201.262 and Ill. Admin. Code tit. 35 Consequently, the EPA proposed to As described in section IX.F.4 of the § 201.265 are substantially inadequate to find that 326 Ind. Admin. Code 1–6–4(a) February 2013 proposal, the Petitioner meet CAA requirements and thus is substantially inadequate to meet CAA objected to a provision in the Minnesota proposed to issue a SIP call with respect requirements and thus proposed to issue SIP that provides automatic exemptions to these provisions. a SIP call with respect to this provision. for excess emissions resulting from In this final action, the EPA is In this final action, the EPA is flared gas at petroleum refineries when granting the Petition with respect to Ill. granting the Petition with respect to 326 those flares are caused by SSM (Minn. Admin. Code tit. 35 § 201.261, Ill. Ind. Admin. Code 1–6–4(a). R. 7011.1415). Admin. Code tit. 35 § 201.262 and Ill. Accordingly, the EPA is finding that this For reasons explained fully in the Admin. Code tit. 35 § 201.265. provision is substantially inadequate to February 2013 proposal, the EPA Accordingly, the EPA is finding that meet CAA requirements and the EPA is proposed to grant the Petition with these provisions are substantially thus issuing a SIP call with respect to respect to Minn. R. 7011.1415. inadequate to meet CAA requirements this provision. This action is fully Consequently, the EPA proposed to and the EPA is thus issuing a SIP call consistent with what the EPA proposed find that Minn. R. 7011.1415 is with respect to these provisions. This in February 2013 as revised in the substantially inadequate to meet CAA action is fully consistent with what the SNPR. Please refer to the Response to requirements and thus proposed to issue EPA proposed in February 2013 as Comment document available in the a SIP call with respect to this provision. revised in the SNPR. Please refer to the docket for this rulemaking concerning In this final action, the EPA is Response to Comment document any comments specific to the Indiana granting the Petition with respect to available in the docket for this SIP that the EPA received and Minn. R. 7011.1415. Accordingly, the rulemaking concerning any comments considered during the development of EPA is finding that this provision is specific to the Illinois SIP that the EPA this rulemaking. substantially inadequate to meet CAA received and considered during the requirements and the EPA is thus development of this rulemaking. 3. Michigan issuing a SIP call with respect to this As described in section IX.F.3 of the provision. This action is fully consistent 2. Indiana February 2013 proposal, the Petitioner with what the EPA proposed in As described in section IX.F.2 of the objected to a generally applicable February 2013. Please refer to the February 2013 proposal, the Petitioner provision in Michigan’s SIP, Mich. Response to Comment document objected to a generally applicable Admin. Code r. 336.1916, that provides available in the docket for this provision in the Indiana SIP that allows for an affirmative defense to monetary rulemaking concerning any comments for discretionary exemptions during penalties for violations of otherwise specific to the Minnesota SIP that the malfunctions (326 Ind. Admin. Code applicable SIP emission limitations EPA received and considered during the 1–6–4(a)). The Petitioner noted that the during periods of startup and shutdown. development of this rulemaking. provision is ambiguous because it states For reasons explained in the February 5. Ohio that excess emissions during 2013 proposal, the EPA proposed to malfunction periods ‘‘shall not be grant the Petition with respect to Mich. As described in section IX.F.5 of the considered a violation’’ if the source Admin. Code r. 336.1916. February 2013 proposal, the Petitioner demonstrates that a number of Subsequently, for reasons explained objected to a generally applicable conditions are met (326 Ind. Admin. fully in the SNPR, the EPA reproposed provision in the Ohio SIP that allows for Code 1–6–4(a)), but the provision does granting of the Petition with respect to discretionary exemptions during not specify to whom or in what forum the affirmative defense provision in periods of scheduled maintenance (Ohio such demonstration must be made. Mich. Admin. Code r. 336.1916, but it Admin. Code 3745–15–06(A)(3)). The If the demonstration was required to proposed to revise the basis for the Petitioner also objected to two source have been made in a showing to the finding of substantial inadequacy and category-specific and pollutant-specific state, the Petitioner argued, the the SIP call for this provision. provisions that provide for discretionary provision would give a state official the Consequently, the EPA proposed to exemptions during malfunctions (Ohio sole authority to determine that the find that Mich. Admin. Code r. 336.1916 Admin. Code 3745–17–07(A)(3)(c) and excess emissions were not a violation substantially inadequate to meet CAA Ohio Admin. Code 3745–17– and could thus be read to preclude requirements and thus proposed to issue 07(B)(11)(f)). The Petitioner also enforcement by the EPA or citizens in a SIP call with respect to this provision. objected to a source category-specific the event that the state official elects not In this final action, the EPA is provision in the Ohio SIP that allows for to treat the excess emissions as a granting the Petition with respect to an automatic exemption from applicable violation. If instead, as the Petitioner Mich. Admin. Code r. 336.1916. emission limitations and requirements noted, the demonstration was required Accordingly, the EPA is finding that this during periods of startup, shutdown, to have been made in an enforcement provision is substantially inadequate to malfunction, or regularly scheduled context, the provision could be meet CAA requirements and the EPA is maintenance activities (Ohio Admin. interpreted as providing an affirmative thus issuing a SIP call with respect to Code 3745–14–11(D)). Finally, the defense. this provision. This action is fully Petitioner objected to five provisions For reasons explained in the February consistent with what the EPA proposed that contain exemptions for Hospital/ 2013 proposal, the EPA proposed to in February 2013 as revised in the Medical/Infectious Waste Incinerator grant the Petition with respect to 326 SNPR. Please refer to the Response to (HMIWI) sources during startup, Ind. Admin. Code 1–6–4(a). Comment document available in the shutdown, and malfunction—Ohio

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Admin. Code 3745–75–02(E), Ohio consistent with what the EPA proposed EPA proposed in February 2013 as Admin. Code 3745–75–02(J), Ohio in February 2013. Please refer to the revised in the SNPR. Please refer to the Admin. Code 3745–75–03(I), Ohio Response to Comment document Response to Comment document Admin. Code 3745–75–04(K) and Ohio available in the docket for this available in the docket for this Admin. Code 3745–75–04(L). rulemaking concerning any comments rulemaking concerning any comments For reasons explained fully in the specific to the Ohio SIP that the EPA specific to the Arkansas SIP that the February 2013 proposal, the EPA received and considered during the EPA received and considered during the proposed to grant the Petition with development of this rulemaking. development of this rulemaking. respect to Ohio Admin. Code 3745–15– 06(A)(3), Ohio Admin. Code 3745–17– G. Affected States in EPA Region VI 2. Louisiana 07(A)(3)(c), Ohio Admin. Code 3745– 1. Arkansas As described in section IX.G.2 of the 17–07(B)(11)(f) and Ohio Admin. Code As described in section IX.G.1 of the February 2013 proposal, the Petitioner 3745–14–11(D). Also for reasons February 2013 proposal, the Petitioner objected to several provisions in the explained fully in the February 2013 objected to two provisions in the Louisiana SIP that allow for automatic proposal, the EPA proposed to deny the Arkansas SIP. First, the Petitioner and discretionary exemptions from SIP Petition with respect to Ohio Admin. objected to a provision that provides an emission limitations during various Code 3745–75–02(E), Ohio Admin. Code automatic exemption for excess situations, including startup, shutdown, 3745–75–02(J), Ohio Admin. Code emissions of VOC for sources located in maintenance and malfunctions. First, 3745–75–03(I), Ohio Admin. Code Pulaski County that occur due to the Petitioner objected to provisions that 3745–75–04(K) and Ohio Admin. Code malfunctions (Reg. 19.1004(H)). Second, provide automatic exemptions for 3745–75–04(L), on the basis that they the Petitioner objected to a separate excess emissions of VOC from are not part of the Ohio SIP and thus provision that provides a ‘‘complete wastewater tanks (LAC cannot represent a substantial affirmative defense’’ for excess 33:III.2153(B)(1)(i)) and excess inadequacy in the SIP. In addition, for emissions that occur during emergency emissions of NOX from certain sources reasons explained fully in the February conditions (Reg. 19.602). The Petitioner within the Baton Rouge Nonattainment 2013 proposal, the EPA proposed to find argued that this provision, which the Area (LAC 33:III.2201(C)(8)). The LAC that another provision, Ohio Admin. state may have modeled after the EPA’s 33:III.2153(B)(1)(i) provides that control Code 3745–15–06(C), is substantially title V regulations, is impermissible devices ‘‘shall not be required’’ to meet inadequate to meet CAA requirements because its application is not clearly emission limitations ‘‘during periods of and proposed to issue a SIP call with limited to operating permits. malfunction and maintenance on the respect to this provision, even though For reasons explained in the February devices for periods not to exceed 336 the Petitioner did not request that the 2013 proposal, the EPA proposed to hours per year.’’ Similarly, LAC EPA evaluate this provision. As grant the Petition with respect to Reg. 33:III.2201(C)(8) provides that certain explained in the February 2013 19.1004(H) and Reg. 19.602. sources ‘‘are exempted’’ from emission proposal, the EPA determined that Ohio Subsequently, for reasons explained limitations ‘‘during start-up and Admin. Code 3745–15–06(C) was the fully in the SNPR, the EPA reproposed shutdown . . . or during a regulatory mechanism in the SIP by granting of the Petition with respect to malfunction.’’ Second, the Petitioner which exemptions are granted in the the affirmative defense provision in Reg. objected to provisions that provide two provisions to which the Petitioner 19.602, but it proposed to revise the discretionary exemptions to various did object. basis for the finding of substantial emission limitations. Three of these Consequently, the EPA proposed to inadequacy and the SIP call for this find that the provisions in Ohio Admin. provisions provide discretionary provision. exemptions from otherwise applicable Code 3745–15–06(A)(3), Ohio Admin. Consequently, the EPA proposed to Code 3745–17–07(A)(3)(c), Ohio Admin. SO2 and visible emission limitations in find that Reg. 19.1004(H) and Reg. the Louisiana SIP for excess emissions Code 3745–17–07(B)(11)(f), Ohio 396 19.602 are substantially inadequate that occur during certain startup and Admin. Code 3745–14–11(D) and Ohio to meet CAA requirements and thus Admin. Code 3745–15–06(C) are shutdown events (LAC 33:III.1107, LAC proposed to issue a SIP call with respect 33:III.1507(A)(1) and LAC substantially inadequate to meet CAA to these provisions. requirements and thus proposed to issue 33:III.1507(B)(1)), while the other two In this final action, the EPA is provide such exemptions for excess a SIP call with respect to these granting the Petition with respect to provisions. emissions from nitric acid plants during Reg. 19.1004(H) and Reg. 19.602. startups and ‘‘upsets’’ (LAC In this final action, the EPA is Accordingly, the EPA is finding that granting the Petition with respect to 33:III.2307(C)(1)(a) and LAC these provisions are substantially 33:III.2307(C)(2)(a)). Ohio Admin. Code 3745–15–06(A)(3), inadequate to meet CAA requirements Ohio Admin. Code 3745–17–07(A)(3)(c), and the EPA is thus issuing a SIP call For reasons explained fully in the Ohio Admin. Code 3745–17– with respect to these provisions. This February 2013 proposal, the EPA 07(B)(11)(f), Ohio Admin. Code 3745– action is fully consistent with what the proposed to grant the Petition with 14–11(D) and Ohio Admin. Code 3745– respect to LAC 33:III.2153(B)(1)(i) and 15–06(C) are substantially inadequate to 396 In a final action published March 4, 2015 (80 LAC 33:III.2201(C)(8) on the basis that meet CAA requirements and the EPA is FR 11573), the EPA approved revisions of the these provisions allow for automatic thus issuing a SIP call with respect to Arkansas SIP pertaining to the regulation and exemptions for excess emissions from these provisions. Also in this final permitting of PM2.5. Among the approved revisions otherwise applicable SIP emission was a change to Reg. 19.602, to capitalize the letter action, the EPA is denying the Petition ‘‘C’’ in that regulation’s title, ‘‘Emergency limitations. Also for reasons explained with respect to Ohio Admin. Code Conditions’’). To the extent the EPA’s recent action fully in the February 2013 proposal, the 3745–75–02(E), Ohio Admin. Code affected Reg. 19.602, that action was only a EPA proposed to grant the Petition with 3745–75–02(J), Ohio Admin. Code ministerial matter and should not be construed as respect to LAC 33:III.1107(A), LAC reapproval of the provision on its merits. That 3745–75–03(I), Ohio Admin. Code action does not affect the basis on which the EPA 33:III.1507(A)(1), LAC 33:III.1507(B)(1), 3745–75–04(K) and Ohio Admin. Code proposed to find Reg. 19.602 substantially LAC 33:III.2307(C)(1)(a) and LAC 3745–75–04(L). This action is fully inadequate in the February 2013 proposal. 33:III.2307(C)(2)(a) on the basis that

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these provisions allow impermissible EPA is finding that these provisions are EPA received and considered during the discretionary exemptions. substantially inadequate to meet CAA development of this rulemaking. Consequently, the EPA proposed to requirements and the EPA is thus 5. Oklahoma find that LAC 33:III.2153(B)(1)(i), LAC issuing a SIP call with respect to these 33:III.2201(C)(8), LAC 33:III.1107(A), provisions. This action is fully As described in section IX.G.4 of the LAC 33:III.1507(A)(1), LAC consistent with what the EPA proposed February 2013 proposal, the Petitioner 33:III.1507(B)(1), LAC in February 2013 as revised in the objected to two provisions in the 33:III.2307(C)(1)(a) and LAC SNPR. Please refer to the Response to Oklahoma SIP that together allow for 33:III.2307(C)(2)(a) are substantially Comment document available in the discretionary exemptions from emission inadequate to meet CAA requirements docket for this rulemaking concerning limitations during startup, shutdown, and thus proposed to issue a SIP call any comments specific to the New maintenance and malfunctions (OAC with respect to these provisions. Mexico SIP that the EPA received and 252:100–9–3(a) and OAC 252:100–9– In this final action, the EPA is considered during the development of 3(b)). granting the Petition with respect to this rulemaking. For reasons explained fully in the LAC 33:III.2153(B)(1)(i), LAC February 2013 proposal, the EPA 33:III.2201(C)(8), LAC 33:III.1107(A), 4. New Mexico: Albuquerque-Bernalillo proposed to grant the Petition with LAC 33:III.1507(A)(1), LAC County respect to OAC 252:100–9–3(a) and 33:III.1507(B)(1), LAC The Petitioner did not identify any OAC 252:100–9–3(b). 33:III.2307(C)(1)(a) and LAC provisions in the SIP for the state of Consequently, the EPA proposed to 33:III.2307(C)(2)(a). Accordingly, the New Mexico that specifically apply in find that OAC 252:100–9–3(a) and OAC EPA is finding that these provisions are the Albuquerque-Bernalillo County area, 252:100–9–3(b) are substantially substantially inadequate to meet CAA which is why this area was not inadequate to meet CAA requirements requirements and the EPA is thus explicitly addressed in the February and thus proposed to issue a SIP call issuing a SIP call with respect to these 2013 proposal. with respect to these provisions. provisions. This action is fully Subsequently, for reasons explained In this final action, the EPA is consistent with what the EPA proposed fully in the SNPR, the EPA identified granting the Petition with respect to in February 2013. Please refer to the three affirmative defense provisions in OAC 252:100–9–3(a) and OAC 252:100– Response to Comment document the SIP for the state of New Mexico that 9–3(b). Accordingly, the EPA is finding available in the docket for this apply in the Albuquerque-Bernalillo that these provisions are substantially rulemaking concerning any comments County area, and the EPA proposed to inadequate to meet CAA requirements specific to the Louisiana SIP that the make a finding of substantial and the EPA is thus issuing a SIP call EPA received and considered during the inadequacy and to issue a SIP call for with respect to these provisions. This development of this rulemaking. these provisions. These provisions action is fully consistent with what the provide affirmative defenses available to EPA proposed in February 2013. Please 3. New Mexico sources for excess emissions that occur refer to the Response to Comment As described in section IX.G.3 of the during malfunctions (20.11.49.16.A document available in the docket for February 2013 proposal, the Petitioner NMAC), during startup and shutdown this rulemaking concerning any objected to three provisions in the New (20.11.49.16.B NMAC) and during comments specific to the Oklahoma SIP Mexico SIP that provide affirmative emergencies (20.11.49.16.C NMAC). that the EPA received and considered defenses for excess emissions that occur In this final action, the EPA is finding during the development of this during malfunctions (20.2.7.111 that the provisions in 20.11.49.16.A rulemaking. NMAC), during startup and shutdown NMAC, 20.11.49.16.B NMAC and 6. Texas (20.2.7.112 NMAC) and during 20.11.49.16.C NMAC are substantially emergencies (20.2.7.113 NMAC). inadequate to meet CAA requirements The Petitioner did not identify in the For reasons explained fully in the and the EPA is thus issuing a SIP call June 2011 petition any provisions in the February 2013 proposal, the EPA with respect to these provisions. The SIP for the state of Texas, which is why proposed to grant the Petition with EPA notes that removal of 20.11.49.16.A this state was not explicitly addressed respect to 20.2.7.111 NMAC, 20.2.7.112 NMAC, 20.11.49.16.B NMAC and in the February 2013 proposal. NMAC and 20.2.7.113 NMAC. 20.11.49.16.C NMAC from the SIP will Subsequently, for reasons explained Subsequently, for reasons explained render 20.11.49.16.D NMAC, fully in the SNPR, the EPA identified fully in the SNPR, the EPA reproposed 20.11.49.16.E, 20.11.49.15.B (15) four affirmative defense provisions in granting of the Petition with respect to (concerning reporting by a source of the SIP for the state of Texas, and the the affirmative defense provisions in intent to assert an affirmative defense EPA proposed to make a finding of 20.2.7.111 NMAC, 20.2.7.112 NMAC for a violation), a portion of 20.11.49.6 substantial inadequacy and to issue a and 20.2.7.113 NMAC, but it proposed NMAC (concerning the objective of SIP call for these provisions. These to revise the basis for the finding of establishing affirmative defense provisions provide affirmative defenses substantial inadequacy and the SIP call provisions) and 20.11.49.18 NMAC available to sources for excess emissions for these provisions. (concerning actions where a that occur during upsets (30 TAC Consequently, the EPA proposed to determination has been made under 101.222(b)), unplanned events (30 TAC find that the provisions in 20.2.7.111 20.11.49.16.E NMAC) superfluous and 101.222(c)), upsets with respect to NMAC, 20.2.7.112 NMAC and no longer operative, and the EPA thus opacity limits (30 TAC 101.222(d)) and 20.2.7.113 NMAC are substantially recommends that these provisions be unplanned events with respect to inadequate to meet CAA requirements removed as well. This action is fully opacity limits (30 TAC 101.222(e)). and thus proposed to issue a SIP call consistent with what the EPA proposed In this final action, the EPA is finding with respect to these provisions. in the SNPR. Please refer to the that the provisions in 30 TAC In this final action, the EPA is Response to Comment document 101.222(b), 30 TAC 101.222(c), 30 TAC granting the Petition with respect to available in the docket for this 101.222(d) and 30 TAC 101.222(e) are 20.2.7.111 NMAC, 20.2.7.112 NMAC rulemaking concerning any comments substantially inadequate to meet CAA and 20.2.7.113 NMAC. Accordingly, the specific to the New Mexico SIP that the requirements and the EPA is thus

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issuing a SIP call with respect to these available in the docket for this For reasons explained fully in the provisions. This action is fully rulemaking concerning any comments February 2013 proposal, the EPA consistent with what the EPA proposed specific to the Iowa SIP that the EPA proposed to grant the Petition with in the SNPR. Please refer to the received and considered during the respect to Mo. Code Regs. Ann. tit 10, Response to Comment document development of this rulemaking. § 10–6.220(3)(C) on the basis that this available in the docket for this provision could be read to allow for 2. Kansas rulemaking concerning any comments exemptions from the otherwise specific to the Texas SIP that the EPA As described in section IX.H.2 of the applicable SIP emission limitations received and considered during the February 2013 proposal, the Petitioner through a state official’s unilateral development of this rulemaking. objected to three provisions in the exercise of discretionary authority that Kansas SIP that allow for exemptions for is insufficiently bounded and includes H. Affected States in EPA Region VII excess emissions during malfunctions no additional public process at the state 1. Iowa and necessary repairs (K.A.R. § 28–19– or federal level. Also for reasons explained fully in the February 2013 As described in section IX.H.1 of the 11(A)), scheduled maintenance (K.A.R. proposal, the EPA proposed to deny the February 2013 proposal, the Petitioner § 28–19–11(B)), and certain routine Petition with respect to Mo. Code Regs. objected to a specific provision in the modes of operation (K.A.R. § 28–19– Ann. tit 10, § 10–6.050(3)(C) on the basis Iowa SIP that allows for automatic 11(C)). that the provision is on its face clearly exemptions from otherwise applicable For reasons explained fully in the February 2013 proposal, the EPA applicable only to Missouri state SIP emission limitations during periods enforcement personnel and that the of startup, shutdown or cleaning of proposed to grant the Petition with respect to K.A.R. § 28–19–11(A), K.A.R. provision thus could not reasonably be control equipment (Iowa Admin. Code r. read by a court to foreclose enforcement 567–24.1(1)). Also, the Petitioner § 28–19–11(B) and K.A.R. § 28–19– 11(C). by the EPA or through a citizen suit objected to a provision that empowers where Missouri state personnel elect to the state to exercise enforcement Consequently, the EPA proposed to find that K.A.R. § 28–19–11(A), K.A.R. exercise enforcement discretion. discretion for violations of the otherwise Consequently, the EPA proposed to § 28–19–11(B) and K.A.R. § 28–19–11(C) applicable SIP emission limitations find that the provision in Mo. Code are substantially inadequate to meet during malfunction periods (Iowa Regs. Ann. tit 10, § 10–6.220(3)(C) is CAA requirements and thus proposed to Admin. Code r. 567–24.1(4)). substantially inadequate to meet CAA issue a SIP call with respect to these For reasons explained fully in the requirements and thus proposed to issue provisions. February 2013 proposal, the EPA a SIP call with respect to this provision. proposed to grant the Petition with In this final action, the EPA is In this final action, the EPA is respect to Iowa Admin. Code r. 567– granting the Petition with respect to granting the Petition with respect to Mo. 24.1(1) on the basis that this provision K.A.R. § 28–19–11(A), K.A.R. § 28–19– Code Regs. Ann. tit 10, § 10–6.220(3)(C). allows for exemptions from the 11(B) and K.A.R. § 28–19–11(C). Accordingly, the EPA is finding that this otherwise applicable SIP emission Accordingly, the EPA is finding that provision is substantially inadequate to limitations. Also for reasons explained these provisions are substantially meet CAA requirements and the EPA is fully in the February 2013 proposal, the inadequate to meet CAA requirements thus issuing a SIP call with respect to EPA proposed to deny the Petition with and the EPA is thus issuing a SIP call this provision. Also in this final action, respect to Iowa Admin. Code r. 567– with respect to these provisions. This the EPA is denying the Petition with 24.1(4) on the basis that the provision is action is fully consistent with what the respect to Mo. Code Regs. Ann. tit 10, on its face clearly applicable only to EPA proposed in February 2013. Please § 10–6.050(3)(C). This action is fully Iowa state enforcement personnel and refer to the Response to Comment consistent with what the EPA proposed that the provision thus could not document available in the docket for in February 2013. Please refer to the reasonably be read by a court to this rulemaking concerning any Response to Comment document foreclose enforcement by the EPA or comments specific to the Kansas SIP available in the docket for this through a citizen suit where Iowa state that the EPA received and considered rulemaking concerning any comments personnel elect to exercise enforcement during the development of this specific to the Missouri SIP that the EPA discretion. rulemaking. received and considered during the Consequently, the EPA proposed to 3. Missouri development of this rulemaking. find that Iowa Admin. Code r. 567– 24.1(1) is substantially inadequate to As described in section IX.H.3 of the 4. Nebraska meet CAA requirements and thus February 2013 proposal, the Petitioner As described in section IX.H.4 of the proposed to issue a SIP call with respect objected to two provisions in the February 2013 proposal, the Petitioner to this provision. Missouri SIP that could be interpreted objected to two provisions in the In this final action, the EPA is to provide discretionary exemptions. Nebraska SIP. First, the Petitioner granting the Petition with respect to The first provides exemptions for visible objected to a generally applicable Iowa Admin. Code r. 567–24.1(1). emissions exceeding otherwise provision that provides authorization to Accordingly, the EPA is finding that this applicable SIP opacity limitations (Mo. state personnel to decide whether provision is substantially inadequate to Code Regs. Ann. tit 10, § 10– excess emissions ‘‘warrant enforcement meet CAA requirements and the EPA is 6.220(3)(C)). The second provides action’’ where a source submits thus issuing a SIP call with respect to authorization to state personnel to information to the state showing that this provision. Also in this final action, decide whether excess emissions such emissions were ‘‘the result of a the EPA is denying the Petition with ‘‘warrant enforcement action’’ where a malfunction, start-up or shutdown’’ respect to Iowa Admin. Code r. 567– source submits information to the state (Neb. Admin. Code Title 129 § 11– 24.1(4). This action is fully consistent showing that such emissions were ‘‘the 35.001). Second, the Petitioner objected with what the EPA proposed in consequence of a malfunction, start-up to a specific provision in Nebraska state February 2013. Please refer to the or shutdown.’’ (Mo. Code Regs. Ann. tit law that contains exemptions for excess Response to Comment document 10, § 10–6.050(3)(C)). emissions at hospital/medical/infectious

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waste incinerators (HMIWI) during SSM available in the docket for this Comment document available in the (Neb. Admin. Code Title 129 § 18– rulemaking concerning any other docket for this rulemaking concerning 004.02). comments specific to the Nebraska SIP any comments specific to the Colorado For reasons explained fully in the that the EPA received and considered SIP that the EPA received and February 2013 proposal, the EPA during the development of this considered during the development of proposed to deny the Petition with rulemaking. this rulemaking. respect to Neb. Admin. Code Title 129 § 11–35.001. Also for reasons explained I. Affected States in EPA Region VIII 2. Montana fully in the February 2013 proposal, the 1. Colorado As described in section IX.I.2 of the EPA proposed to deny the Petition with February 2013 proposal, the Petitioner As described in section IX.I.1 of the respect to Neb. Admin. Code Title 129 objected to an exemption from February 2013 proposal, the Petitioner § 18–004.02 on the basis that this otherwise applicable emission objected to two affirmative defense regulation is not part of the Nebraska limitations for aluminum plants during SIP and thus cannot represent an provisions in the Colorado SIP that startup and shutdown (Montana Admin. inadequacy in the SIP. provide for affirmative defenses to R 17.8.334). In this final action, the EPA is qualifying sources during malfunctions For reasons explained fully in the denying the Petition with respect to (5 Colo. Code Regs § 1001–2(II.E)) and February 2013 proposal, the EPA Neb. Admin. Code Title 129, Chapter during periods of startup and shutdown proposed to grant the Petition with 35, Section 001 (correction to citation, (5 Colo. Code Regs § 1001–2(II.J)). respect to ARM 17.8.334. as per comment received from Nebraska For reasons explained in the February Consequently, the EPA proposed to DEQ, from earlier identification as Neb. 2013 proposal, the EPA proposed to find that ARM 17.8.334 is substantially Admin. Code Title 129 § 11–35.001) and grant the Petition with respect to 5 Colo. inadequate to meet CAA requirements Neb. Admin. Code Title 129 § 18– Code Regs § 1001–2(II.J). Also for and thus proposed to issue a SIP call 004.02. reasons explained in the February 2013 with respect to this provision. This action is fully consistent with proposal, the EPA proposed to deny the In this final action, the EPA is what the EPA proposed in February Petition with respect to 5 Colo. Code granting the Petition with respect to 2013. Please refer to the Response to Regs § 1001–2(II.E) on the basis that it ARM 17.8.334. Accordingly, the EPA is Comment document available in the included an affirmative defense finding that ARM 17.8.334 is docket for this rulemaking concerning applicable to malfunction events that substantially inadequate to meet CAA any other comments specific to the was consistent with the requirements of requirements and the EPA is thus Nebraska SIP that the EPA received and the CAA as interpreted by the EPA in issuing a SIP call with respect to this considered during the development of the 1999 SSM Guidance. provision. This action is fully consistent this rulemaking. Subsequently, for reasons explained with what the EPA proposed in fully in the SNPR, the EPA reproposed February 2013. Please refer to the 5. Nebraska: Lincoln-Lancaster granting of the Petition with respect to Response to Comment document As described in section IX.H.5 of the the affirmative defense provision in 5 available in the docket for this February 2013 proposal, the Petitioner Colo. Code Regs § 1001–2(II.J) rulemaking concerning any comments objected to a generally applicable applicable to startup and shutdown, but specific to the Montana SIP that the EPA provision in the Lincoln-Lancaster it proposed to revise the basis for the received and considered during the County Air Pollution Control Program finding of substantial inadequacy and development of this rulemaking. (Art. 2 § 35), which governs the Lincoln- the SIP call for this provision. Also for Lancaster County Air Pollution Control reasons explained in the SNPR, the EPA 3. North Dakota District of Nebraska, that is parallel ‘‘in reversed its prior proposed denial of the As described in section IX.I.3 of the all aspects pertinent to this analysis’’ to Petition with respect to the affirmative February 2013 proposal, the Petitioner Neb. Admin. Code Title 129 § 11– defense provision 5 Colo. Code Regs objected to two provisions in the North 35.001. (Note that as per comment § 1001–2(II.E) applicable to Dakota SIP that create exemptions from subsequently received from Nebraska malfunctions. otherwise applicable emission DEQ, the correct citation is Neb. Admin. Consequently, the EPA proposed to limitations. The first provision creates Code Title 129, Chapter 35, Section find that the provisions in 5 Colo. Code exemptions from a number of cross- 001.) Regs § 1001–2(II.J) and 5 Colo. Code referenced opacity limits ‘‘where the For reasons explained fully in the Regs § 1001–2(II.E) are substantially limits specified in this article cannot be February 2013 proposal, the EPA inadequate to meet CAA requirements met because of operations and processes proposed to deny the Petition with and thus proposed to issue a SIP call such as, but not limited to, oil field respect to Art. 2 § 35, on the basis that with respect to these provisions. service and drilling operations, but only this provision is on its face clearly In this final action, the EPA is so long as it is not technically feasible applicable only to Lincoln-Lancaster granting the Petition with respect to 5 to meet said specifications’’ (N.D. County enforcement personnel and that Colo. Code Regs § 1001–2(II.J) and 5 Admin. Code § 33–15–03–04(4)). The the provision thus could not reasonably Colo. Code Regs § 1001–2(II.E). second provision creates an implicit be read by a court to foreclose Accordingly, the EPA is finding that the exemption for ‘‘temporary operational enforcement by the EPA or through a provisions in 5 Colo. Code Regs § 1001– breakdowns or cleaning of air pollution citizen suit where personnel from 2(II.J) and 5 Colo. Code Regs § 1001– equipment’’ if the source meets certain Lincoln-Lancaster County elect not to 2(II.E) are substantially inadequate to conditions (N.D. Admin. Code § 33–15– bring an enforcement action. meet CAA requirements and the EPA is 05–01(2)(a)(1)). In this final action, the EPA is thus issuing a SIP call to Colorado to For reasons explained in the February denying the Petition with respect to Art. correct its SIP with respect to these 2013 proposal, the EPA proposed to 2 § 35. This action is fully consistent provisions. This action is fully grant the Petition with respect to N.D. with what the EPA proposed in consistent with what the EPA proposed Admin. Code 33–15–03–04.4 (cited in February 2013. Please refer to the in February 2013 as revised in the the Petition as N.D. Admin. Code § 33– Response to Comment document SNPR. Please refer to the Response to 15–03–04(4)) and also with respect to a

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provision to which the Petitioner cited Consequently, the EPA proposed to comments specific to the Wyoming SIP but did not explicitly object, N.D. find that S.D. Admin, R. 74:36:12:02(3) that the EPA received and considered Admin. Code 33–15–03–04.3 (cited in is substantially inadequate to meet CAA during the development of this the Petition as N.D. Admin. Code § 33– requirements and thus proposed to issue rulemaking. 15–03–04(3)). Also for reasons a SIP call with respect to this provision. J. Affected States and Local Jurisdictions explained in the February 2013 In this final action, the EPA is in EPA Region IX proposal, the EPA proposed to grant the granting the Petition with respect to S.D. Petition with respect to N.D. Admin. Admin, R. 74:36:12:02(3). Accordingly, 1. Arizona Code 33–15–05–01.2a(1) (cited in the the EPA is finding that S.D. Admin, R. As described in section IX.J.1 of the Petition as N.D. Admin. Code § 33–15– 74:36:12:02(3) is substantially February 2013 proposal, the Petitioner 05–01(2)(a)(1)). inadequate to meet CAA requirements objected to two provisions in the Subsequently, the state of North and the EPA is thus issuing a SIP call Arizona Department of Air Quality’s Dakota removed N.D. Admin. Code 33– with respect to this provision. This (ADEQ) Rule R18–2–310, which provide 15–03–04.4 and N.D. Admin. Code 33– action is fully consistent with what the 15–05–01.2.a(1) and eliminated the SIP affirmative defenses for excess EPA proposed in February 2013. Please emissions during malfunctions (AAC inadequacies with respect to those two refer to the Response to Comment of the three provisions identified in the Section R18–2–310(B)) and for excess document available in the docket for emissions during startup or shutdown February 2013 proposal notice. The EPA this rulemaking concerning any has already approved the necessary SIP (AAC Section R18–2–310(C)). comments specific to the South Dakota For reasons explained in the February revisions for those two provisions.397 SIP that the EPA received and Thus, the EPA’s final action on the 2013 proposal, the EPA proposed to considered during the development of deny the Petition with respect to AAC Petition does not need to include a this rulemaking. finding of substantial inadequacy and Section R18–2–310(B) on the basis that SIP call for those two provisions. 5. Wyoming it included an affirmative defense In this final action, the EPA is applicable to malfunction events that As described in section IX.I.5 of the was consistent with the CAA as granting the Petition with respect to February 2013 proposal, the Petitioner N.D. Admin. Code 33–15–03–04.3 and interpreted by the EPA in the 1999 SSM objected to a specific provision in the Guidance. denying the Petition with respect to Wyoming SIP that provides an N.D. Admin. Code 33–15–03–04.4 and Also for reasons explained in the exemption for excess PM emissions February 2013 proposal, the EPA N.D. Admin. Code 33–15–05–01.2.a(1). from diesel engines during startup, Accordingly, the EPA is finding that the proposed to grant the Petition with malfunction and maintenance (WAQSR respect to AAC Section R18–2–310(C). provision in N.D. Admin. Code 33–15– Chapter 3, section 2(d), cited as ENV– 03–04.3 is substantially inadequate to Subsequently, for reasons explained AQ–1 Wyo. Code R. § 2(d) in the fully in the SNPR, the EPA reversed its meet CAA requirements and the EPA is Petition). The provision exempts thus issuing a SIP call to North Dakota prior proposed denial of the Petition emission of visible air pollutants from with respect to the affirmative defense to correct its SIP with respect to this diesel engines from applicable SIP provision. This action is fully consistent provision AAC Section R18–2–310(B) limitations ‘‘during a reasonable period applicable to malfunctions. Also for with what the EPA proposed in of warmup following a cold start or February 2013 with respect to this reasons explained in the SNPR, the EPA where undergoing repairs and reproposed granting of the Petition with provision. Please refer to the Response adjustment following malfunction.’’ to Comment document available in the respect to the affirmative defense For reasons explained fully in the provision in AAC Section R18–2–310(C) docket for this rulemaking concerning February 2013 proposal, the EPA any comments specific to the North applicable to startup and shutdown, but proposed to grant the Petition with Dakota SIP that the EPA received and it proposed to revise the basis for the respect to WAQSR Chapter 3, section considered during the development of finding of substantial inadequacy and 2(d) (cited as ENV–AQ–1 Wyo. Code R. this rulemaking. the SIP call for this provision. § 2(d) in the Petition). Consequently, the EPA proposed to 4. South Dakota Subsequently, the state of Wyoming find that the provisions in AAC Section As described in section IX.I.4 of the revised WAQSR Chapter 3, section 2(d) R18–2–310(B) and AAC Section R18–2– February 2013 proposal, the Petitioner and eliminated the SIP inadequacies 310(C) are substantially inadequate to objected to a provision in the South identified in the February 2013 proposal meet CAA requirements and thus Dakota SIP that creates exemptions from document with respect to this provision. proposed to issue a SIP call with respect otherwise applicable SIP emission The EPA has already approved the to these provisions. limitations (S.D. Admin, R. necessary SIP revision for this In this final action, the EPA is 398 74:36:12:02(3)). The Petitioner asserted provision. Thus, the EPA’s final granting the Petition with respect to that the provision imposes visible action on the Petition does not need to AAC Section R18–2–310(B) and AAC emission limitations on sources but include a finding of substantial Section R18–2–310(C). Accordingly, the explicitly excludes emissions that occur inadequacy and SIP call for this EPA is finding that the provisions in ‘‘for brief periods during such provision. AAC Section R18–2–310(B) and AAC operations as soot blowing, start-up, In this final action, the EPA is Section R18–2–310(C) are substantially shut-down, and malfunctions.’’ denying the Petition with respect to inadequate to meet CAA requirements For reasons explained fully in the WAQSR Chapter 3, section 2(d). Please and the EPA is thus issuing a SIP call February 2013 proposal, the EPA refer to the Response to Comment with respect to these provisions. This proposed to grant the Petition with document available in the docket for action is fully consistent with what the respect to S.D. Admin, R. 74:36:12:02(3). this rulemaking concerning any EPA proposed in February 2013 as revised in the SNPR. Please refer to the 398 397 See ‘‘Approval and Promulgation of See ‘‘Approval and Promulgation of Response to Comment document Implementation Plans; North Dakota; Revisions to Implementation Plans; Wyoming; Revisions to the the Air Pollution Control Rules,’’ 79 FR 63045 Air Quality Standards and Regulations,’’ 79 FR available in the docket for this (October 22, 2014). 62859 (October 21, 2014). rulemaking concerning any comments

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specific to the Arizona SIP that the EPA these provisions are substantially is substantially inadequate to meet CAA received and considered during the inadequate to meet CAA requirements requirements and the EPA is thus development of this rulemaking. and the EPA is thus issuing a SIP call issuing a SIP call with respect to this with respect to these provisions. This provision. This action is fully consistent 2. Arizona: Maricopa County action is fully consistent with what the with what the EPA proposed in the As described in section IX.J.2 of the EPA proposed in February 2013 as SNPR. Please refer to the Response to February 2013 proposal, the Petitioner revised in the SNPR. Please refer to the Comment document available in the objected to two provisions in the Response to Comment document docket for this rulemaking concerning Maricopa County Air Pollution Control available in the docket for this any comments specific to the California Regulations that provide affirmative rulemaking concerning any comments SIP that the EPA received and defenses for excess emissions during specific to the Arizona SIP that the EPA considered during the development of malfunctions (Maricopa County Air received and considered during the this rulemaking. Pollution Control Regulation 3, Rule development of this rulemaking. 140, § 401) and for excess emissions 5. California: Imperial County Air during startup or shutdown (Maricopa 3. Arizona: Pima County Pollution Control District County Air Pollution Control Regulation As described in section IX.J.3 of the The Petitioner did not identify any 3, Rule 140, § 402). These provisions in February 2013 proposal, the Petitioner provisions in the SIP for the state of Maricopa County Air Quality objected to a provision in the Pima California, which is why this state was Department (MCAQD) Rule 140 are County Department of Environmental not explicitly addressed in the February similar to the affirmative defense Quality’s (PCDEQ) Rule 706 that 2013 proposal. provisions in ADEQ R18–2–310. pertains to enforcement discretion. Subsequently, for reasons explained For reasons explained in the February For reasons explained fully in the fully in the SNPR, the EPA identified an 2013 proposal, the EPA proposed to February 2013 proposal, the EPA affirmative defense provision in the SIP deny the Petition with respect to proposed to deny the Petition with for the state of California applicable in Maricopa County Air Pollution Control respect to PCDEQ Rule 706. the Imperial Valley APCD, and the EPA Regulation 3, Rule 140, § 401 on the In this final action, the EPA is proposed to make a finding of basis that it included an affirmative denying the Petition with respect to substantial inadequacy and to issue a defense applicable to malfunction PCDEQ Rule 706. This action is fully SIP call for this provision. The events that was consistent with the CAA consistent with what the EPA proposed affirmative defense is included in as interpreted by the EPA in the 1999 in February 2013. Please refer to the Imperial County ‘‘Rule 111 Equipment SSM Guidance. Also for reasons Response to Comment document Breakdown.’’ This SIP provision explained in the February 2013 available in the docket for this provides an affirmative defense proposal, the EPA proposed to grant the rulemaking concerning any comments available to sources for excess emissions Petition with respect to Maricopa specific to the Arizona SIP that the EPA that occur during a breakdown County Air Pollution Control Regulation received and considered during the condition (i.e., malfunction). 3, Rule 140, § 402. development of this rulemaking. In this final action, the EPA is finding Subsequently, for reasons explained that Imperial County ‘‘Rule 111 fully in the SNPR, the EPA reversed its 4. California: Eastern Kern Air Pollution Equipment Breakdown’’ in the prior proposed denial of the Petition Control District California SIP applicable in the Imperial with respect to the affirmative defense The Petitioner did not identify any Valley APCD is substantially inadequate provision Maricopa County Air provisions in the SIP for the state of to meet CAA requirements and the EPA Pollution Control Regulation 3, Rule California, which is why this state was is thus issuing a SIP call with respect to 140, § 401 applicable to malfunctions. not explicitly addressed in the February this provision. This action is fully Also for reasons explained in the SNPR, 2013 proposal. consistent with what the EPA proposed the EPA reproposed granting of the Subsequently, for reasons explained in the SNPR. Please refer to the Petition with respect to the affirmative fully in the SNPR, the EPA identified an Response to Comment document defense provision in Maricopa County affirmative defense provision in the SIP available in the docket for this Air Pollution Control Regulation 3, Rule for the state of California applicable in rulemaking concerning any comments 140, § 402 applicable to startup and the Eastern Kern Air Pollution Control specific to the California SIP that the shutdown, but it proposed to revise the District (APCD), and the EPA proposed EPA received and considered during the basis for the finding of substantial to make a finding of substantial development of this rulemaking. inadequacy and the SIP call for this inadequacy and to issue a SIP call for provision. this provision. The affirmative defense 6. California: San Joaquin Valley Consequently, the EPA proposed to is included in Kern County ‘‘Rule 111 Unified Air Pollution Control District find that the provisions in Maricopa Equipment Breakdown.’’ This SIP The Petitioner did not identify any County Air Pollution Control Regulation provision provides an affirmative provisions in the SIP for the state of 3, Rule 140, § 401 and Maricopa County defense available to sources for excess California, which is why this state was Air Pollution Control Regulation 3, Rule emissions that occur during a not explicitly addressed in the February 140, § 402 are substantially inadequate breakdown condition (i.e., malfunction). 2013 proposal. to meet CAA requirements and thus In this final action, the EPA is finding Subsequently, for reasons explained proposed to issue a SIP call with respect that Kern County Rule 111 Equipment fully in the SNPR, the EPA identified to these provisions. Breakdown in the California SIP affirmative defense provisions in the SIP In this final action, the EPA is applicable in the Eastern Kern APCD 399 for the state of California applicable in granting the Petition with respect to the San Joaquin Valley Unified APCD, Maricopa County Air Pollution Control 399 The EPA is in this final action making a and the EPA proposed to make a finding Regulation 3, Rule 140, § 401 and finding of substantial inadequacy and issuing a SIP of substantial inadequacy and to issue a call for Kern County Rule 111 Equipment Maricopa County Air Pollution Control Breakdown in the California SIP as it applies in SIP call for these provisions. The Regulation 3, Rule 140, § 402. each the Eastern Kern APCD and the San Joaquin affirmative defenses are included in: (i) Accordingly, the EPA is finding that Valley Unified APCD. Fresno County ‘‘Rule 110 Equipment

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Breakdown’’; (ii) Kern County ‘‘Rule 111 respect to Alaska Admin. Code tit. 18 SIP that grants enforcement discretion Equipment Breakdown’’; (iii) Kings § 50.240 on the basis that, to the extent to the state to pursue violations for County ‘‘Rule 111 Equipment the provision was intended to be an excess emissions during certain SSM Breakdown’’; (iv) Madera County ‘‘Rule affirmative defense, it was not a events (Or. Admin. R. 340–028–1450). 113 Equipment Breakdown’’; (v) permissible affirmative defense For reasons explained fully in the Stanislaus County ‘‘Rule 110 Equipment provision consistent with the February 2013 proposal, the EPA Breakdown’’; and (vi) Tulare County requirements of the CAA as interpreted proposed to deny the Petition with ‘‘Rule 111 Equipment Breakdown.’’ in the EPA’s 1999 SSM Guidance. respect to Or. Admin. R. 340–028–1450. Each of these SIP provisions provides an Subsequently, for reasons explained In this final action, the EPA is affirmative defense available to sources in the SNPR, the EPA reproposed denying the Petition with respect to Or. for excess emissions that occur during a granting of the Petition with respect to Admin. R. 340–028–1450. This action is breakdown condition (i.e., malfunction). Alaska Admin. Code tit. 18 § 50.240, but fully consistent with what the EPA In this final action, the EPA is finding it proposed to revise the basis for the proposed in February 2013. Please refer that the following six provisions in the finding of substantial inadequacy and to the Response to Comment document California SIP applicable in the San the SIP call for this provision. available in the docket for this Joaquin Valley Unified APCD are Consequently, the EPA proposed to rulemaking concerning any comments substantially inadequate to meet CAA find that Alaska Admin. Code tit. 18 specific to the Oregon SIP that the EPA requirements and the EPA is thus § 50.240 is substantially inadequate to received and considered during the issuing a SIP call with respect to these meet CAA requirements and thus development of this rulemaking. provisions: (i) Fresno County ‘‘Rule 110 proposed to issue a SIP call with respect Equipment Breakdown’’; (ii) Kern to this provision. 4. Washington County ‘‘Rule 111 Equipment In this final action, the EPA is As described in section IX.K.4 of the Breakdown’’; (iii) Kings County ‘‘Rule granting the Petition with respect to February 2013 proposal, the Petitioner 111 Equipment Breakdown’’; (iv) Alaska Admin. Code tit. 18 § 50.240. objected to a provision in the Madera County ‘‘Rule 113 Equipment Accordingly, the EPA is finding that this Washington SIP that provides an excuse Breakdown’’; (v) Stanislaus County provision is substantially inadequate to for ‘‘unavoidable’’ excess emissions that ‘‘Rule 110 Equipment Breakdown’’; and meet CAA requirements and the EPA is occur during certain SSM events, (vi) Tulare County ‘‘Rule 111 Equipment thus issuing a SIP call with respect to including startup, shutdown, scheduled Breakdown.’’ 400 This action is fully this provision. This action is fully maintenance and ‘‘upsets’’ (Wash. consistent with what the EPA proposed consistent with what the EPA proposed Admin. Code § 173–400–107). The in the SNPR. Please refer to the in February 2013 as revised in the provision provides that ‘‘[e]xcess Response to Comment document SNPR. Please refer to the Response to emissions determined to be unavoidable available in the docket for this Comment document available in the under the procedures and criteria under rulemaking concerning any comments docket for this rulemaking concerning this section shall be excused and are not specific to the California SIP that the any comments specific to the Alaska SIP subject to penalty.’’ The Petitioner EPA received and considered during the that the EPA received and considered argued that this provision excuses development of this rulemaking. during the development of this excess emissions in violation of the rulemaking. K. Affected States in EPA Region X CAA and the EPA’s SSM Policy, which 2. Idaho require all such emissions to be treated 1. Alaska as violations of the applicable SIP As described in section IX.K.2 of the emission limitations. The Petitioner also As described in section IX.K.1 of the February 2013 proposal, the Petitioner stated that the provision is worded as if February 2013 proposal, the Petitioner objected to a provision in the Idaho SIP it were an affirmative defense but it uses objected to a provision in the Alaska SIP that appears to grant enforcement criteria for enforcement discretion. that provides an excuse for discretion to the state as to whether to For reasons explained fully in the ‘‘unavoidable’’ excess emissions that impose penalties for excess emissions February 2013 proposal, the EPA occur during SSM events, including during certain SSM events (Idaho proposed to grant the Petition with startup, shutdown, scheduled Admin. Code r. 58.01.01.131). maintenance and ‘‘upsets’’ (Alaska For reasons explained fully in the respect to Wash. Admin. Code § 173– Admin. Code tit. 18 § 50.240). The February 2013 proposal, the EPA 400–107 on the basis that, to the extent provision provides: ‘‘Excess emissions proposed to deny the Petition with the provision was intended to be an determined to be unavoidable under respect to Idaho Admin. Code r. affirmative defense, it was not a this section will be excused and are not 58.01.01.131. permissible affirmative defense subject to penalty. This section does not In this final action, the EPA is provision consistent with the limit the department’s power to enjoin denying the Petition with respect to requirements of the CAA as interpreted the emission or require corrective Idaho Admin. Code r. 58.01.01.131. This in the EPA’s 1999 SSM Guidance. action.’’ The Petitioner also stated that action is fully consistent with what the Subsequently, for reasons explained the provision is worded as if it were an EPA proposed in February 2013. Please in the SNPR, the EPA reproposed affirmative defense but it uses criteria refer to the Response to Comment granting of the Petition with respect to for enforcement discretion. document available in the docket for Wash. Admin. Code § 173–400–107, but For reasons explained fully in the this rulemaking concerning any it proposed to revise the basis for the February 2013 proposal, the EPA comments specific to the Idaho SIP that finding of substantial inadequacy and proposed to grant the Petition with the EPA received and considered during the SIP call for this provision. the development of this rulemaking. Consequently, the EPA proposed to 400 The EPA is in this final action making a find that Wash. Admin. Code § 173– finding of substantial inadequacy and issuing a SIP 3. Oregon 400–107 is substantially inadequate to call for Kern County Rule 111 Equipment meet CAA requirements and thus Breakdown in the California SIP as it applies in As described in section IX.K.3 of the each the Eastern Kern APCD and the San Joaquin February 2013 proposal, the Petitioner proposed to issue a SIP call with respect Valley Unified APCD. objected to a provision in the Oregon to this provision.

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In this final action, the EPA is (SWCAA),401 which is why this area CAA requirements for SIP provisions. If granting the Petition with respect to was not explicitly addressed in the a state elects to create an alternative Wash. Admin. Code § 173–400–107. February 2013 proposal. emission limitation to replace an Accordingly, the EPA is finding that this Subsequently, for reasons explained existing exemption, there are several provision is substantially inadequate to fully in the SNPR, the EPA identified issues that the state should consider. meet CAA requirements and the EPA is affirmative defense provisions in the SIP First, as explained in sections VII.B thus issuing a SIP call with respect to for the state of Washington that apply in and XI of this document, the EPA has this provision. This action is fully the portion of the state regulated by longstanding guidance that provides consistent with what the EPA proposed SWCAA, and the EPA proposed to make recommendations to states concerning in February 2013 as revised in the a finding of substantial inadequacy and the development of alternative emission SNPR. Please refer to the Response to to issue a SIP call for these provisions. limitations applicable during startup Comment document available in the The affirmative defenses are included in and shutdown to replace exemptions in docket for this rulemaking concerning the SIP in SWAPCA ‘‘400–107 Excess existing SIP provisions. The EPA first any comments specific to the Emissions.’’ This SIP section provides provided this guidance in the 1999 SSM Washington SIP that the EPA received an affirmative defense available to Guidance but has reiterated and and considered during the development sources for excess emissions that occur clarified its guidance in this action. The of this rulemaking. during startup and shutdown, EPA recommends that states consider maintenance and ‘‘upsets’’ (i.e., the seven clarified criteria described in 5. Washington: Energy Facility Site malfunctions). It is identical to Wash. sections VII.B and XI of this document Evaluation Council Admin. Code § 173–400–107 in all when developing new alternative The Petitioner did not identify any respects except that SWAPCA 400– emission limitations to replace provisions in the SIP for the state of 107(3) contains a more stringent automatic or discretionary exemptions, Washington that specifically apply to requirement for the reporting of excess in order to assure that the revised the Energy Facility Site Evaluation emissions. provisions submitted to the EPA for Council (EFSEC) area, which is why this In this final action, the EPA is finding approval meet basic CAA requirements area was not explicitly addressed in the that SWAPCA ‘‘400–107 Excess for SIP emission limitations. February 2013 proposal. Emissions’’ in the Washington SIP Second, the EPA reiterates that SIP Subsequently, for reasons explained applicable in the area regulated by emission limitations that are expressed fully in the SNPR, the EPA identified SWCAA is substantially inadequate to as numerical limitations do not affirmative defense provisions in the SIP meet CAA requirements and the EPA is necessarily have to require the same for the state of Washington that relate to thus issuing a SIP call with respect to numerical level of emissions during all modes of normal source operation. the EFSEC, and the EPA proposed to this provision. This action is fully Under appropriate circumstances make a finding of substantial consistent with what the EPA proposed consistent with the criteria that the EPA inadequacy and to issue a SIP call for in the SNPR. Please refer to the recommends for alternative emission these provisions in Wash. Admin. Code Response to Comment document limitations, it may be appropriate to § 463–39–005. In the EFSEC portion of available in the docket for this have a numerical emission limitation the SIP, Wash. Admin. Code § 463–39– rulemaking concerning any comments that has a higher numerical level 005 adopts by reference Wash. Admin. specific to the Washington SIP that the applicable during specific modes of Code § 173–400–107, thereby EPA received and considered during the source operation, such as during startup incorporating the affirmative defenses development of this rulemaking. and shutdown. For example, if a rate- applicable to startup, shutdown, X. Implementation Aspects of EPA’s based NOX emission limitation in the scheduled maintenance and ‘‘upsets’’ SSM SIP Policy SIP applies to a specific source category, that the EPA is also finding then it may be appropriate for that A. Recommendations Concerning substantially inadequate in Wash. emission limitation to have a higher Alternative Emission Limitations for Admin. Code § 173–400–107 (see numerical standard applicable during Startup and Shutdown section IX.K.4 of this document). defined periods of startup or shutdown. In this final action, the EPA is finding In response to a SIP call concerning Such an approach can be consistent that Wash. Admin. Code § 463–39–005 an existing automatic or discretionary with SIP requirements, so long as that is substantially inadequate to meet CAA exemption for excess emissions during higher numerical level for startup or requirements and the EPA is thus SSM events, the EPA anticipates that a shutdown is properly established and is issuing a SIP call with respect to this state may elect to create an alternative legally and practically enforceable, and provision. This action is fully consistent emission limitation that applies during so long as other overarching CAA with what the EPA proposed in the startup and shutdown events (or during requirements are also met. However, SNPR. Please refer to the Response to any other normal mode of operation alternative emission limitations Comment document available in the during which the exemption may have applicable during startup and shutdown docket for this rulemaking concerning applied) as a revised element or cannot be inappropriately high or an any comments specific to the component of the existing emission effectively unlimited or uncontrolled Washington SIP that the EPA received limitation. The EPA emphasizes that level of emissions, as those would and considered during the development states have discretion to revise the constitute impermissible de facto of this rulemaking. identified deficient provisions by any exemptions for emissions during certain 6. Washington: Southwest Clean Air means they choose, so long as the modes of operation. Agency revised provision is consistent with Third, the EPA reiterates that SIP emission limitations do not necessarily The Petitioner did not identify any 401 The EPA notes that the SWCAA was formerly have to be expressed in terms of a provisions in the SIP for the state of named, and in some places in the SIP still appears, numerical level of emissions. There are Washington that specifically apply in as the ‘‘Southwest Air Pollution Control Authority’’ or ‘‘SWAPCA.’’ The EPA anticipates that the name many sources for which a numerically the portion of the state regulated by the will be updated in the SIP in due course as the state expressed emission limitation will be Southwest Clean Air Agency revises the SIP. the most appropriate and will result in

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the most legally and practically a generic requirement such as a ‘‘general affirmative defense provision, without enforceable SIP requirements.402 duty to minimize emissions’’ provision altering any other aspects of the SIP However, the EPA recognizes that for or an ‘‘exercise good engineering provision at issue (e.g., elects to retain some source categories, under some judgment’’ provision.403 While such the emission limitation for the source circumstances, it may be appropriate for provisions may serve an overarching category but eliminate the exemption for the SIP emission limitation to include a purpose of encouraging sources to emissions during SSM events). specific technological control design, maintain and operate their Although the EPA must review each SIP requirement or specific work practice sources correctly, such generic clauses submission for compliance with section requirement that applies during are not a valid substitute for more 110(l) and section 193 on the facts and specified modes of source operation specific emission limitations that apply circumstances of the revision, the such as startup and shutdown. For during normal modes of operation such Agency believes in general that this type example, if the otherwise applicable as startup and shutdown. of SIP revision should not entail a numerical SO emission limitation in complicated analysis to meet these 2 B. Recommendations for Compliance the SIP is not achievable, and the statutory requirements. Presumably, With Section 110(l) and Section 193 for otherwise required SO control measure removal of the impermissible 2 SIP Revisions is not effective during startup and components of preexisting SIP shutdown and/or measurement of In response to a SIP call for any type provisions would not constitute emissions during startup and shutdown of deficient provision, the EPA backsliding, would in fact strengthen is not reasonably feasible, then it may be anticipates that each state will the SIP and would be consistent with appropriate for that emission limitation determine the best way to revise its SIP the overarching requirement that the SIP to impose a different control measure, provisions to bring them into revision be consistent with the such as use of low sulfur coal, compliance with CAA requirements. In requirements of the CAA. Accordingly, applicable during defined periods of this action the EPA is only identifying the EPA believes that this type of SIP startup and shutdown in lieu of a the provisions that need to be revised revision should not entail a complicated numerically expressed emission because they violate fundamental analysis for purposes of section 110(l). limitation. Such an approach can be requirements of the CAA and providing If the SIP revision is also governed by consistent with SIP requirements, so guidance to states in the SSM Policy section 193, then elimination of the long as that alternative control measure concerning the types of provisions that deficiency will likewise presumably applicable during startup and shutdown are and are not permissible with respect result in equal or greater emission is properly established and is legally to the treatment of excess emissions reductions and thus comply with and practically enforceable as a during SSM events. The EPA recognizes section 193 without the need for a more component of the emission limitation, that one important consideration for air complicated analysis. The EPA has and so long as other overarching CAA agencies as they evaluate how best to recently evaluated a SIP revision to requirements are also met. revise their SIP provisions in response remove specific SSM deficiencies in this Fourth, the EPA notes that revisions to this SIP call is the nature of the manner.404 to replace existing automatic or analysis that will be necessary for the Example 2: A state elects to revise its discretionary exemptions for SSM resulting SIP revisions under section SIP provision by replacing an automatic events with alternative emission 110(l) and section 193. The EPA is exemption for excess emissions during limitations applicable during startup therefore providing in this document startup and shutdown events with an and shutdown also need to meet the general guidance on this important issue appropriate alternative emission applicable overarching CAA in order to assist states with SIP limitation (e.g., a different numerical requirements with respect to the SIP revisions in response to the SIP call. limitation or different other control emission limitation at issue. For Section 110(k)(3) directs the EPA to requirement) that is explicitly example, if the emission limitation is in approve SIP submissions that comply applicable during startup and shutdown the SIP to meet the requirement that the with applicable CAA requirements and as a component of the revised emission source category be subject to RACT level to disapprove those that do not. Under limitation. Although the EPA must controls for NOX for purposes of the section 110(l), the EPA is prohibited review each SIP revision for compliance ozone NAAQS, then the state should from approving any SIP revision that with section 110(l) and section 193 on assure that the higher numerical level or would interfere with any applicable the facts and circumstances of the other control measure that will apply to requirement concerning attainment and revision, the Agency believes in general NOX emissions during startup and reasonable further progress or any other that this type of SIP revision should not shutdown does constitute a RACT level requirements of the CAA. To illustrate entail a complicated analysis to meet of control for such sources for such different ways in which section 110(l) these statutory requirements. pollutant during such modes of and section 193 may apply in the Presumably, the replacement of an operation. evaluation of future SIP submissions in automatic exemption applicable to Finally, the EPA notes that states response to the SIP call, the EPA startup and shutdown with an should not replace automatic or anticipates that there are several appropriate alternative emission discretionary exemptions for excess common scenarios that states may wish limitation would not constitute emissions during SSM events with to consider when revising their SIPs: backsliding, would strengthen the SIP alternative emission limitations that are Example 1: A state elects to revise an and would be consistent with the existing SIP provision by removing an overarching requirement that the SIP 402 The EPA notes that in the CAA there is a existing automatic exemption provision, revision be consistent with the presumption in favor of numerical emission director’s discretion provision, limitations for purposes of section 112 and section enforcement discretion provision or 169, but section 110(a) does not include such an 404 See ‘‘Approval and Promulgation of explicit presumption. However, there may be Implementation Plans; Kentucky; Approval of sources for which a numerically expressed emission 403 The EPA notes that the ‘‘general duty’’ Revisions to the Jefferson County Portion of the limitation is the one that is most legally and imposed under CAA section 112(r) is a separate Kentucky SIP; Emissions During Startups, practically enforceable, even during startup and standard, in addition to the otherwise applicable Shutdowns, and Malfunctions,’’ proposed at 78 FR shutdown, and for which a numerically expressed emission limitations and is not in lieu of those 29683 (May 21, 2013), finalized at 79 FR 33101 emission limitation is thus most appropriate. requirements. (June 10, 2014).

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requirements of the CAA. The state state should assure that the replacement SIP, an emission limitation must be should develop that alternative provision meets the applicable applicable to the source continuously, emission limitation in accordance with overarching CAA requirements that the i.e., cannot include periods during the EPA’s guidance recommendations provision is designed and intended to which emissions from the source are for such provisions to assure that it meet, is legally and practically legally or functionally exempt from would meet CAA requirements.405 In enforceable and is not less stringent regulation. Regardless of its form, a fully addition, that alternative emission than the prior SIP provision. The EPA approvable SIP emission limitation limitation would both need to meet the believes in general that this type of SIP must also meet all substantive overarching CAA applicable revision may require a more in-depth requirements of the CAA applicable to requirements that the emission analysis to meet these statutory such a SIP provision, e.g., the statutory limitation is designed and intended to requirements of section 110(l) and requirement of section 172(c)(1) for meet (e.g., RACT-level controls for the section 193. To the extent that there is imposition of RACM and RACT on source category in an attainment area for any concern that the revised SIP sources located in designated a NAAQS) and need to be legally and provision is less stringent than the nonattainment areas. practically enforceable (e.g., have provision it replaces, then there will This section of the document provides adequate recordkeeping, reporting, need to be a careful evaluation as to more specific guidance on the monitoring or other features requisite whether the revised provision would appropriate treatment of emissions for enforcement). If a state has interfere with any applicable during SSM events in SIP provisions, developed the alternative emission requirement concerning attainment and replacing the EPA’s prior guidance limitation consistent with these criteria, reasonable further progress and with issued in memoranda of 1982, 1983, then the EPA anticipates that the any other applicable requirement of the 1999 and 2001. The more extended revision of the emission limitation to CAA. Presumably, however, so long as explanations and interpretations replace the exemption with an the state has properly developed the provided in other sections of this alternative emission limitation revised emission limitation to assure document are also applicable, should a applicable to startup and shutdown that it meets the overarching CAA situation arise that is not sufficiently would not be backsliding, would be a requirements and to assure that it will covered by this section’s more concise strengthening of the SIP and would be not result in a less stringent emission policy statement. This SSM Policy as of consistent with the requirement of limitation, then the complete revision of 2015 is a policy statement and thus section 110(l) that a SIP revision be the emission limitation would not constitutes guidance. As guidance, this consistent with the requirements of the constitute backsliding, would be a SSM Policy as of 2015 does not bind CAA. Similarly, if section 193 applies to strengthening of the SIP and thereby states, the EPA or other parties, but it the emission limitation that the state is would comply with section 110(l). If the does reflect the EPA’s interpretation of revising, then the replacement of an SIP revision is also governed by section the statutory requirements of the CAA. exemption applicable to emissions 193, then there will also need to be an The EPA’s evaluation of any SIP during startup and shutdown with an analysis to assure that the revision will provision, whether prospectively in the appropriately developed alternative result in equal or greater emission case of a new provision in a SIP emission limitation that explicitly reductions and thus comply with submission or retrospectively in the applies during startup and shutdown section 193. To the extent that there is case of a previously approved SIP would presumably result in equal or concern that the revision would result submission, must be conducted through greater emission reductions and thus in a less stringent emission limitation a notice-and-comment rulemaking in should meet the requirements of section than the preexisting emission limitation, which the EPA will determine whether 193 without the need for a more then a more complex analysis would a given SIP provision is consistent with complicated analysis. likely be required. the requirements of the CAA and Example 3: A state elects to revise an The EPA emphasizes that each SIP applicable regulations. existing SIP provision not merely by revision must be evaluated for A. Definitions removal of an existing automatic compliance with section 110(l) and exemption provision, director’s section 193 on the facts and The term alternative emission discretion provision, enforcement circumstances of the specific revision, limitation means, in this document, an discretion provision or affirmative but these examples are intended to emission limitation in a SIP that applies defense provision, but by the removal of provide general guidance on the to a source during some but not all the deficiency combined with a total considerations and the nature of the periods of normal operation (e.g., revision of the emission limitation. The analysis that may be appropriate for applies only during a specifically EPA anticipates that there may be different types of SIP revisions. States defined mode of operation such as emission limitations for which a state should contact their respective EPA startup or shutdown). An alternative may elect to do such a wholesale Regional Offices (see the emission limitation is a component of a revision of the SIP provision as part of SUPPLEMENTARY INFORMATION section of continuously applicable SIP emission eliminating an impermissible this document) for further limitation, and it may take the form of component of the existing provision recommendations and assistance a control measure such as a design, (e.g., removal of an automatic concerning the analysis appropriate for equipment, work practice or operational exemption applicable to emissions specific SIP revisions in response to this standard (whether or not numerical). during SSM events through a complete SIP call. This definition of the term is revision of the emission limitation to independent of the statutory use of the XI. Statement of the EPA’s SSM SIP term ‘‘alternative means of emission create a different emission limitation Policy as of 2015 that applies at all times, including limitation’’ in sections 111(h)(3) and during SSM events). In developing a The EPA’s longstanding interpretation 112(h)(3), which pertain to the completely revised SIP provision, the of the CAA is that SIP provisions cannot conditions under which the EPA may include exemptions from emission pursuant to sections 111 and 112 405 These recommendations are discussed in limitations for emissions during SSM promulgate emission limitations, or detail in section VII.B.2 of this document. events. In order to be permissible in a components of emission limitations,

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that are not necessarily in numeric The term malfunction means a discussed in section XI.C of this format. sudden and unavoidable breakdown of document. The term automatic exemption means process or control equipment. Accordingly, automatic or a generally applicable provision in a SIP The term shutdown means, generally, discretionary exemption provisions that would provide that if certain the cessation of operation of a source for applicable during SSM events are conditions existed during a period of any reason. In this document, the EPA impermissible in SIPs. This excess emissions, then those uses this term in the generic sense. In impermissibility applies even for exceedances would not be considered individual SIP provisions it may be ‘‘brief’’ exemptions from limits on violations of the applicable emission appropriate to include a specifically emissions, because such exemptions limitations. tailored definition of this term to nevertheless render the limitation The term director’s discretion address a particular source category for noncontinuous. Furthermore, the fact provision means, in general, a regulatory a particular purpose. that a SIP provision includes provision that authorizes a state The term SSM refers to startup, prerequisites to qualifying for an SSM regulatory official unilaterally to grant shutdown or malfunction at a source. It exemption does not mean those exemptions or variances from otherwise does not include periods of prerequisites are themselves an applicable emission limitations or maintenance at such a source. An SSM ‘‘alternative emission limitation’’ control measures, or to excuse event is a period of startup, shutdown applicable during SSM events. noncompliance with otherwise or malfunction during which there are Automatic exemptions. A typical SIP applicable emission limitations or exceedances of the applicable emission provision that includes an control measures, which would be limitations and thus excess emissions. impermissible automatic exemption binding on the EPA and the public. The term startup means, generally, would provide that a source has to meet The term emission limitation means, the setting in operation of a source for a specific emission limitation during all in the context of a SIP, a legally binding any reason. In this document, the EPA modes of operation except startup, restriction on emissions from a source uses this term in the generic sense. In shutdown and malfunction; by or source category, such as a numerical an individual SIP provision it may be definition any excess emissions during emission limitation, a numerical appropriate to include a specifically such events would not be violations and emission limitation with higher or lower tailored definition of this term to thus there could be no enforcement levels applicable during specific modes address a particular source category for based on those excess emissions. With of source operation, a specific a particular purpose. respect to automatic exemptions from technological control measure B. Emission Limitations in SIPs Must emission limitations in SIPs, the EPA’s requirement, a work practice standard, Apply Continuously During All Modes longstanding interpretation of the CAA or a combination of these things as of Operation, Without Automatic or is that such exemptions are components of a comprehensive and Discretionary Exemptions or Overly impermissible because they are continuous emission limitation in a SIP Broad Enforcement Discretion inconsistent with the fundamental provision. In this respect, the term Provisions That Would Bar Enforcement requirements of the CAA. Automatic emission limitation is defined as in exemptions from otherwise applicable by the EPA or by Other Parties in section 302(k) of the CAA. By emission limitations render those Federal Court Through a Citizen Suit definition, an emission limitation can emission limitations less than take various forms or a combination of In accordance with CAA section continuous as required by CAA sections forms, but in order to be permissible in 302(k), SIPs must contain emission 302(k), 110(a)(2)(A) and 110(a)(2)(C), a SIP it must be applicable to the source limitations that ‘‘limit the quantity, rate, thereby inconsistent with a fundamental continuously, i.e., cannot include or concentration of emissions of air requirement of the CAA and thus periods during which emissions from pollutants on a continuous basis.’’ All of substantially inadequate as the source are legally or functionally the specific requirements of a SIP contemplated in CAA section 110(k)(5). exempt from regulation. Regardless of emission limitation must be discernible Discretionary exemptions. A typical its form, a fully approvable SIP emission in the SIP, for clarity preferably within SIP provision that includes an limitation must also meet all substantive a single section or provision; must meet impermissible ‘‘director’s discretion’’ requirements of the CAA applicable to the applicable substantive and component would purport to authorize such a SIP provision, e.g., the statutory stringency requirements of the CAA; air agency personnel to modify existing requirement of section 172(c)(1) for and must be legally and practically SIP requirements under certain imposition of reasonably available enforceable. conditions, e.g., to grant a variance from control measures and reasonably To the extent that a SIP provision an otherwise applicable emission available control technology (RACM and allows any period of time when a source limitation if the source could not meet RACT) on sources located in designated is not subject to any requirement that the requirement in certain nonattainment areas. limits emissions, the requirements circumstances.406 Director’s discretion The term excess emissions means the limiting the source’s emissions by provisions operate to allow air agency emissions of air pollutants from a source definition cannot do so ‘‘on a personnel to make unilateral decisions that exceed any applicable SIP emission continuous basis.’’ Such a source would on an ad hoc basis, up to and including limitation. In particular, this term not be subject to an ‘‘emission the granting of complete exemptions for includes those emissions above the limitation,’’ as required by the otherwise applicable SIP emission definition of that term under section 406 The EPA notes that problematic ‘‘director’s limitation that occur during startup, 302(k). However, the CAA allows SIP discretion’’ provisions are not limited only to those that purport to authorize alternative emission shutdown, malfunction or other modes provisions that include numerical limitations from those required in a SIP. Other of source operation, i.e., emissions that limitations, specific technological problematic director’s discretion provisions include would be considered violations of the control requirements and/or work those that purport to provide for discretionary applicable emission limitation but for practice requirements that limit changes to other substantive requirements of the SIP, such as applicability, operating requirements, an impermissible automatic or emissions during startup and shutdown recordkeeping requirements, monitoring discretionary exemption from such as components of a continuously requirements, test methods or alternative emission limitation. applicable emission limitation, as compliance methods.

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emissions during SSM events, thereby NESHAP as a SIP provision, so long as It may be appropriate for an air negating any possibility of enforcement the SIP provision excludes the agency to establish an alternative for what would be violations of the exemption or affirmative defense numerical limitation or other form of otherwise applicable emission applicable to SSM events.407 States may control measure that applies during limitation. With respect to such also wish to replace the SSM exemption these modes of source operation, as for director’s discretion provisions in SIPs, in NSPS or NESHAP regulations with startup and shutdown events, but any the EPA interprets the CAA to prohibit appropriately developed alternative such alternative emission limitation these if they provide unbounded emission limitations that apply during should be developed using the same discretion to allow what would amount startup and shutdown in lieu of the criteria that the EPA recommends for to a case-specific revision of the SIP SSM exemption. Otherwise, the EPA’s alternative emission limitations without meeting the statutory approval of the deficient SSM applicable during startup and requirements of the CAA for SIP exemption provisions into the SIP shutdown. Similarly, any SIP provision revisions. In particular, the EPA would contravene CAA requirements for that includes an emission limitation for interprets the CAA to preclude SIP SIP provisions and would potentially sources that includes alternative provisions that provide director’s result in misinterpretation or emission limitations applicable to discretion authority to create misapplication of the standards by modes of operation such as discretionary exemptions for violations regulators, regulated entities, courts and ‘‘maintenance,’’ ‘‘load change,’’ ‘‘soot- when the CAA would not allow such members of the public. The EPA blowing’’ or ‘‘on-line operating exemptions in the first instance. emphasizes that the inclusion of an changes’’ must also meet the applicable If an air agency elects to have SIP NSPS or NESHAP as an emission level of stringency for that type of provisions that contain a director’s limitation in a state’s SIP is different emission limitation and be practically discretion feature, then to be consistent and distinct from reliance on such and legally enforceable. with CAA requirements the provisions standards indirectly, such as reliance on C. Emission Limitations in SIPs May must be structured so that any resulting the NSPS or NESHAP as a source of Contain Components Applicable to variances or other deviations from the emission reductions that may be taken Different Modes of Operation That Take emission limitation or other SIP into account for SIP planning purposes Different Forms, and Numerical requirements have no federal law in emissions inventories or attainment Emission Limitations May Have validity, unless and until the EPA demonstrations. For those uses, states Differing Levels and Forms for Different specifically approves that exercise of the may continue to rely on the EPA’s NSPS Modes of Operation director’s discretion as a SIP revision. and NESHAP regulations, even those Barring such a later ratification by the that have not yet been revised to remove There are approaches other than EPA through a SIP revision, the exercise inappropriate exemptions, in exemptions that would be consistent of director’s discretion is only valid for accordance with the requirements with CAA requirements for SIP state (or tribal) law purposes and would applicable to those SIP planning provisions that states can use to address have no bearing in the event of an action functions. excess emissions during certain events. to enforce the provision of the SIP as it Other modes of normal operation. While automatic exemptions and was originally approved by the EPA. SIPs also may not create automatic or director’s discretion exemptions from Adoption of the EPA’s NSPS or discretionary exemptions from otherwise applicable emission NESHAP that have not yet been revised. otherwise applicable emission limitations for SSM events are not The EPA has recently begun revising limitations during periods such as consistent with the CAA, SIPs may and will continue to revise NSPS and ‘‘maintenance,’’ ‘‘load change,’’ ‘‘soot- include criteria and procedures for the NESHAP as needed, to make the EPA’s blowing,’’ ‘‘on-line operating changes’’ use of enforcement discretion by air regulations consistent with CAA or other similar normal modes of agency personnel, as described in requirements by removing exemptions operation. Like startup and shutdown, section XI.E of this document. Similarly, and affirmative defense provisions the EPA considers all of these to be SIPs may, rather than exempt excess applicable to SSM events, and generally modes of normal operation at a source, emissions, include emission limitations on the same legal basis as for this action. for which the source can be designed, that subject those emissions to A state should not submit an NSPS or operated and maintained in order to alternative numerical limitations or NESHAP for inclusion into its SIP as an meet an applicable emission limitations other control requirements during emission limitation (whether through and during which the source should be startup and shutdown events or other incorporation by reference or otherwise) expected to control and minimize normal modes of operation, so long as unless either: (i) That NSPS or NESHAP emissions. Excess emissions that occur those components of the emission does not include an exemption or during planned and predicted periods limitations meet applicable CAA affirmative defense for SSM events; or should be treated as violations of requirements and are legally and (ii) the state takes action as part of the applicable emission limitations. practically enforceable. SIP submission to render such Accordingly, exemptions for emissions The EPA does not interpret section exemption or affirmative defense during these periods of normal source 110(a)(2) or section 302(k) to require inapplicable to the SIP emission operation are not consistent with CAA that an emission limitation in a SIP limitation. Because SIP provisions must requirements. provision be composed of a single, apply continuously, including during uniformly applicable numerical SSM events, the EPA can no longer 407 Under CAA section 116, states have the emission limitation. The text of section approve SIP submissions that include explicit general authority to regulate more 110(a)(2) and section 302(k) does not any emission limitations with such stringently than the EPA. Indeed, under section 116 require states to impose emission states can regulate sources subject to EPA exemptions, even if those emission regulations promulgated under section 111 or limitations that include a static, limitations are NSPS or NESHAP section 112 so long as they do not regulate them inflexible standard. The critical aspect regulations that the EPA has not yet less stringently. According, the EPA believes that for purposes of section 302(k) is that the revised to make consistent with CAA states may elect to adopt EPA regulations under SIP provision impose limits on section 111 or section 112 as SIP provisions and requirements. Alternatively, states may expressly eliminate the exemptions for emissions emissions on a continuous basis, elect to adopt an existing NSPS or during SSM events. regardless of whether the emission

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limitation as a whole is expressed operation of the source.409 It should be normal mode of operation that is numerically or as a combination of possible to determine an appropriate appropriate for a specifically designed numerical limitations, specific control form and degree of emission control alternative emission limitation, then technology requirements and/or work during startup and shutdown and to such alternative should be developed in practice requirements applicable during achieve that control on a regular basis. accordance with the recommended specific modes of operation, and Thus, sources should be required to criteria for alternative emission regardless of whether the emission meet defined SIP emission limitations limitations. The EPA does not believe limitation is static or variable. Thus, during startup and shutdown. However, that generic general-duty provisions, emission limitations in SIP provisions the EPA interprets the CAA to permit such as a general duty to minimize do not have to be composed solely of SIP emission limitations that include emissions, is sufficient as an alternative numerical emission limitations alternative emission limitations emission limitation for any type of event applicable at all times. For example, so specifically applicable during startup including malfunctions. long as the SIP provision meets other and shutdown. Regarding startup and States developing SIP revisions to applicable requirements, it may impose shutdown periods, the EPA considers remove impermissible exemption different numerical limitations for the following to be the correct approach provisions from emissions limitations startup and shutdown. Also, for to creating an emission limitation: (i) may choose to consider reassessing example, SIPs can contain numerical The emission limitation contains no particular emission limitations, for emission limitations applicable only to exemption for emissions during SSM example to determine whether limits some periods and other forms of events; (ii) the component of any originally applicable only during non- SSM periods can be revised such that controls applicable only to some alternative emission limitation that well-managed emissions during planned periods, with certain periods perhaps applies during startup and shutdown is operations such as startup and subject to both types of limitation. Thus, clearly stated and obviously is an emission limitation that applies to the shutdown would not exceed the revised SIP emission limitations: (i) Do not need source; (iii) the component of any emission limitation, while still to be numerical in format; (ii) do not alternative emission limitation that protecting air quality and meeting other have to apply the same limitation (e.g., applies during startup and shutdown applicable CAA requirements. Such a numerical level) at all times; and (iii) meets the applicable stringency level for revision of an emission limitation will may be composed of a combination of this type of emission limitation; and (iv) need to be submitted as a SIP revision numerical limitations, specific the emission limitation contains for EPA approval if the existing technological control requirements and/ requirements to make it legally and limitation to be changed is already or work practice requirements, with practically enforceable. Section XI.D of included in the SIP or if the existing SIP each component of the emission this document contains more specific relies on the particular existing limitation applicable during a defined recommendations to states for emission limitation to meet a CAA mode of source operation. In practice, it developing alternative emission requirement. may be that numerical emission limitations. Some SIPs contain other generic limitations are the most appropriate In contrast to startup and shutdown, regulatory requirements frequently from a regulatory perspective (e.g., to be a malfunction is unpredictable as to the referred to as ‘‘general duty’’ type legally and practically enforceable) and timing of the start of the malfunction requirements, such as a general duty to thus the emission limitation would need event, its duration and its exact nature. minimize emissions at all times, a to be established in this form to meet The effect of a malfunction on emissions general duty to use good engineering CAA requirements. It is important to is therefore unpredictable and variable, judgment at all times or a general duty emphasize, however, that regardless of making the development of an not to cause a violation of the NAAQS how the state structures or expresses a alternative emission limitation for at any time. To the extent that such SIP emission limitation—whether solely malfunctions problematic. There may be other general-duty requirement is as one numerical limitation, as a rare instances in which certain types of properly established and legally and combination of different numerical malfunctions at certain types of sources practically enforceable, the EPA would limitations or as a combination of are foreseeable and foreseen and thus agree that it may be an appropriate numerical limitations, specific are an expected mode of source separate requirement to impose upon technological control requirements and/ operation. In such circumstances, the sources in addition to the (continuous) or work practice requirements that EPA believes that sources should be emission limitation. The EPA itself apply during certain modes of operation expected to meet the otherwise imposes separate general duties of this such as startup and shutdown—the applicable emission limitation in order type in appropriate circumstances. The emission limitation as a whole must be to encourage sources to be properly existence of these generic provisions continuous, must meet applicable CAA designed, maintained and operated in does not, however, legitimize stringency requirements and must be order to prevent or minimize any such exemptions for emissions during SSM legally and practically enforceable.408 malfunctions. To the extent that a given events in a SIP provision that imposes an emission limitation. Startup and shutdown are part of the type of malfunction is so foreseeable and foreseen that a state considers it a General-duty requirements that are normal operation of a source and should not clearly part of or explicitly cross- be accounted for in the design and 409 Every source is designed, maintained and referenced in a SIP emission limitation operated with the expectation that the source will cannot be viewed as a component of a 408 The EPA notes that CAA section 123 explicitly at least occasionally start up and shut down, and continuous emission limitation. Even if prohibits certain intermittent or supplemental thus these modes of operation are ‘‘normal’’ in the controls on sources. In a situation where an sense that they are to be expected. The EPA uses clearly part of or explicitly cross- emission limitation is continuous, by virtue of the this term in the ordinary sense of the word to referenced in the SIP emission fact that it has components applicable during all distinguish between such predictable modes of limitation, however, a given general- modes of source operation, the EPA would not source operation and genuine ‘‘malfunctions,’’ duty requirement may not be consistent interpret the components that applied only during which are by definition supposed to be certain modes of operation, e.g., startup and unpredictable and unforeseen events that could not with the applicable stringency shutdown, to be prohibited intermittent or have been precluded by proper source design, requirements for SIP provisions that supplemental controls. maintenance and operation. should apply during startup and

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shutdown. In general, the EPA believes and definitions of startup and shutdown control applicable during specifically that a legally and practically enforceable events and work practices for them defined periods of startup and alternative emission limitation found in these regulations may be shutdown than during other normal applicable during startup and shutdown appropriate for adoption by the state in modes of operation, then the resulting should be expressed as a numerical certain circumstances. In particular, the emission limitation must meet the limitation, a specific technological NSPS regulations should provide very substantive requirements applicable to control requirement or a specific work relevant information for sources of the the type of SIP provision at issue, meet practice applicable to affected sources same type, size and control equipment the applicable level of stringency for during specifically defined periods or type, even if the sources were not that type of emission limitation and be modes of operation. Accordingly, while constructed or modified within a date legally and practically enforceable. states are free to include general-duty range that would make them subject to Alternative emission limitations provisions in their SIPs as separate the NSPS. The EPA therefore applicable during startup and shutdown additional requirements, for example, to encourages states to explore these cannot allow an inappropriately high ensure that owners and operators act approaches. level of emissions or an effectively consistent with reasonable standards of The EPA recommends that, in order to unlimited or uncontrolled level of care, the EPA does not recommend be approvable (i.e., meet CAA emissions, as those would constitute using these background standards to requirements), alternative requirements impermissible de facto exemptions for bridge unlawful interruptions in an applicable to the source during startup emissions during certain modes of emission limitation.410 and shutdown should be narrowly operation. tailored and take into account E. Enforcement Discretion Provisions D. Recommendations for Development considerations such as the technological of Alternative Emission Limitations limitations of the specific source One approach other than exemptions Applicable During Startup and category and the control technology that that would be consistent with CAA Shutdown is feasible during startup and shutdown. requirements for SIP provisions that A state can develop special, The EPA recommends the following states can use to address excess alternative emission limitations that seven specific criteria as appropriate emissions during SSM events is to apply during startup or shutdown if the considerations for developing emission include in the SIP criteria and source cannot meet the otherwise limitations in SIP provisions that apply procedures for the use of enforcement applicable emission limitation in the during startup and shutdown: discretion by air agency personnel. SIPs SIP. SIP provisions may include (1) The revision is limited to specific, may contain such provisions concerning alternative emission limitations for narrowly defined source categories the exercise of discretion by the air startup and shutdown as part of a using specific control strategies (e.g., agency’s own personnel, but such continuously applicable emission cogeneration facilities burning natural provisions cannot bar enforcement by limitation when properly developed and gas and using selective catalytic the EPA or by other parties through a otherwise consistent with CAA reduction); citizen suit. Pursuant to the CAA, all parties with requirements. However, if a non- (2) Use of the control strategy for this authority to bring an enforcement action numerical requirement does not itself source category is technically infeasible to enforce SIP provisions (i.e., the state, (or in combination with other during startup or shutdown periods; the EPA or any parties who qualify components of the emission limitation) (3) The alternative emission limitation under the citizen suit provision of limit the quantity, rate or concentration requires that the frequency and duration section 304) have enforcement of air pollutants on a continuous basis, of operation in startup or shutdown mode are minimized to the greatest discretion that they may exercise as they then the non-numerical standard (or deem appropriate in any given overarching requirement) does not meet extent practicable; (4) As part of its justification of the circumstances. For example, if the event the statutory definition of an emission that causes excess emissions is an actual limitation under section 302(k). SIP revision, the state analyzes the potential worst-case emissions that malfunction that occurred despite In cases in which measurement of reasonable care by the source operator emissions during startup and/or could occur during startup and shutdown based on the applicable to avoid malfunctions, then each of shutdown is not reasonably feasible, it these parties may decide that no may be appropriate for an emission alternative emission limitation; (5) The alternative emission limitation enforcement action is warranted. In the limitation to include as a component a requires that all possible steps are taken event that any party decides that an control for startup and/or shutdown to minimize the impact of emissions enforcement action is warranted, then it periods other than a numerically during startup and shutdown on has enforcement discretion with respect expressed emission limitation. ambient air quality; to what remedies to seek from the court The federal NESHAP and NSPS (6) The alternative emission limitation for the violation (e.g., injunctive relief, regulations and the technical materials requires that, at all times, the facility is compliance order, monetary penalties or in the public record for those rules may operated in a manner consistent with all of the above), as well as the type of provide assistance for states as they good practice for minimizing emissions injunctive relief and/or amount of develop and consider emission 411 and the source uses best efforts monetary penalties sought. limitations and alternative emission regarding planning, design, and As part of state programs governing limitations for sources in their states, operating procedures; and enforcement, states can include (7) The alternative emission limitation regulatory provisions or may adopt 410 For example, the EPA has concerns the some policies setting forth criteria for how general-duty provisions, if at any point relied upon requires that the owner or operator’s as the sole requirement purportedly limiting actions during startup and shutdown they plan to exercise their own emissions, could undermine the ability to ensure periods are documented by properly compliance with SIP emission limitations relied on signed, contemporaneous operating logs 411 The EPA notes that only the state and the to achieve the NAAQS and other relevant CAA Agency have authority to seek criminal penalties for requirements at all times. See section 110(a)(2)(A), or other relevant evidence. knowing and intentional violation of CAA (C); US Magnesium, LLC v. EPA, 690 F.3d 1157, If a state elects to create an emission requirements. The EPA has this explicit authority 1161–62 (10th Cir. 2012). limitation with different levels of under CAA section 113(c).

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enforcement authority. Under section preauthorized exercise of director’s penalties, in judicial enforcement 110(a)(2), states must have adequate discretion will not interfere with other proceedings. This grant of jurisdiction authority to enforce provisions adopted CAA requirements, such as providing comes directly from Congress, and the into the SIP, but states can establish for attainment and maintenance of the EPA is not authorized to alter or criteria for how they plan to exercise NAAQS. eliminate this jurisdiction under the that authority. Such enforcement When using enforcement discretion in CAA or any other law. With respect to discretion provisions cannot, however, determining whether an enforcement monetary penalties, CAA section 113(e) impinge upon the enforcement authority action is appropriate in the case of explicitly includes the factors that of the EPA or of others pursuant to the excess emissions during a malfunction, federal courts and the EPA are required citizen suit provision of the CAA. Such satisfaction of the following criteria to consider in the event of judicial or enforcement discretion provisions in a should be considered: administrative enforcement for SIP would be inconsistent with the (1) To the maximum extent violations of CAA requirements, enforcement structure provided in the practicable the air pollution control including SIP provisions. Because CAA. Specifically, the statute provides equipment, process equipment or Congress has already given federal explicit independent enforcement processes were maintained and operated courts the jurisdiction to determine authority to the EPA under CAA section in a manner consistent with good what monetary penalties are appropriate 113 and to citizens under CAA section practice for minimizing emissions; in the event of judicial enforcement for 304. Thus, the CAA contemplates that (2) Repairs were made in an a violation of a SIP provision, neither the EPA and citizens have authority to expeditious fashion when the operator the EPA nor states can alter or eliminate pursue enforcement for a violation even knew or should have known that that jurisdiction by superimposing if the state elects not to do so. The EPA applicable emission limitations were restrictions on that jurisdiction and and citizens, and any federal court in being exceeded. Off-shift labor and discretion granted by Congress to the which they seek to pursue an overtime were utilized, to the extent courts. Accordingly, pursuant to section enforcement claim for violation of SIP practicable, to ensure that such repairs 110(k) and section 110(l), the EPA requirements, must retain the authority were made as expeditiously as cannot approve any such affirmative to evaluate independently whether a practicable; defense provision in a SIP. If such an source’s violation of an emission (3) The amount and duration of the affirmative defense provision is limitation warrants enforcement action. excess emissions (including any bypass) included in an existing SIP, the EPA has Potential for enforcement by the EPA or were minimized to the maximum extent authority under section 110(k)(5) to through a citizen suit provides an practicable during periods of such require a state to remove that provision. important safeguard in the event that emissions; Couching an affirmative defense the state lacks resources or ability to (4) All possible steps were taken to provision in terms of merely defining enforce violations and provides minimize the impact of the excess whether the emission limitation applies additional deterrence. Accordingly, a emissions on ambient air quality; and and thus whether there is a ‘‘violation,’’ (5) The excess emissions are not part SIP provision that operates at the state’s as suggested by some commenters, is of a recurring pattern indicative of election to eliminate the authority of the also problematic. If there is no inadequate design, operation or EPA or the public to pursue ‘‘violation’’ when certain criteria or maintenance. conditions for an ‘‘affirmative defense’’ enforcement actions in federal court are met, then there is in effect no would undermine the enforcement F. Affirmative Defense Provisions in emission limitation that applies when structure of the CAA and would thus be SIPs the criteria or conditions are met; the substantially inadequate to meet The EPA believes that SIP provisions affirmative defense thus operates to fundamental requirements of the CAA. that function to alter the jurisdiction or create an exemption from the emission Also, states should not adopt overly discretion of the federal courts under limitation. As explained in the February broad enforcement discretion provisions CAA section 113 and section 304 to 2013 proposal, the CAA requires that for inclusion in their SIPs, even for their determine liability and to impose emission limitations must apply own personnel. Section 110(a)(2) remedies are inconsistent with continuously and cannot contain requires states to have adequate fundamental legal requirements of the exemptions, conditional or otherwise. enforcement authority, and overly broad CAA, especially with respect to the This interpretation is consistent with enforcement discretion provisions enforcement regime explicitly created the decision in Sierra Club v. Johnson would run afoul of this requirement if by statute. Affirmative defense concerning the term ‘‘emission they have the effect of precluding provisions by their nature purport to limitation’’ in section 302(k).412 adequate state authority to enforce SIP limit or eliminate the authority of Characterizing the exemptions as an requirements. If such provisions are federal courts to find liability or to ‘‘affirmative defense’’ runs afoul of the sufficiently specific, provide for impose remedies through factual requirement that emission limitations sufficient public process and are considerations that differ from, or are must apply continuously. sufficiently bounded, so that it is contrary to, the explicit grants of The EPA wishes to be clear that the possible to anticipate at the time of the authority in section 113(b) and section absence of affirmative defense EPA’s approval of the SIP provision 113(e). These provisions are not provisions in SIPs does not alter the how that provision will actually be appropriate under the CAA, no matter legal rights of sources under the CAA. applied and the potential adverse what type of event they apply to, what In the event of an enforcement action for impacts thereof, then such a provision criteria they contain or what forms of an exceedance of a SIP emission might meet basic CAA requirements. In remedy they purport to limit or limitation, a source can elect to assert essence, if it is possible to anticipate eliminate. any common law or statutory defenses and evaluate in advance how the Section 113(b) provides courts with that it determines are supported, based exercise of enforcement discretion could explicit jurisdiction to determine upon the facts and circumstances affect compliance with other CAA liability and to impose remedies of surrounding the alleged violation. requirements, then it may be possible to various kinds, including injunctive determine in advance that the relief, compliance orders and monetary 412 551 F.3d 1019 (D.C. Cir. 2008).

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Under section 113(b), courts have G. Anti-Backsliding Considerations environmental protection for all areas of explicit authority to impose injunctive The EPA recognizes that one the country. relief, issue compliance orders, assess important consideration for air agencies XIII. References monetary penalties or fees and impose as they evaluate how best to revise their The following is a list of documents any other appropriate relief. Under SIP provisions in response to this SIP that are specifically referenced in this section 113(e), federal courts are call is the nature of the analysis that document. Some listed documents also required to consider the enumerated will be necessary for the resulting SIP include a document ID number statutory factors when assessing revisions under section 110(k)(3), associated with the docket for this monetary penalties, including ‘‘such section 110(l) and section 193. Under rulemaking. other factors as justice may require.’’ For section 110(l), the EPA is prohibited example, if the exceedance of the SIP from approving any SIP revision that 1. 1982 SSM Guidance (Memorandum to emission limitation occurs due to a would interfere with any applicable Regional Administrators, Region I–X from Kathleen M. Bennett, Assistant malfunction, that exceedance is a requirement concerning attainment and Administrator for Air, Noise and violation of the applicable emission reasonable further progress or any other Radiation, Subject: Policy on Excess limitation but the source retains the requirements of the CAA. Section 193 Emissions During Startup, Shutdown, ability to defend itself in an prohibits states from modifying Maintenance, and Malfunctions, dated enforcement action and to oppose the regulations in place prior to November September 28, 1982), EPA–HQ–OAR– imposition of particular remedies or to 15, 1990, unless the modification 2012–0322–0005. seek the reduction or elimination of ensures equivalent or greater reductions 2. 1983 SSM Guidance (Memorandum to Regional Administrators, Region I–X monetary penalties, based on the of the pollutant. SIP revision must be evaluated for compliance with section from Kathleen M. Bennett, Assistant specific facts and circumstances of the Administrator for Air, Noise and event. Thus, elimination of a SIP 110(l) and section 193 on the facts and Radiation, Subject: Policy on Excess affirmative defense provision that circumstances of the specific revision. Emissions During Startup, Shutdown, purported to take away the statutory Section X of this document provides Maintenance, and Malfunctions, dated jurisdiction of the federal court to three example scenarios in which a state February 15, 1983), EPA–HQ–OAR– 2012–0322–0006. exercise its authority to impose might remove an impermissible SSM provision from its SIP, including how 3. 1999 SSM Guidance (Memorandum to EPA remedies does not disarm sources in Regional Administrators, Regions I–X potential enforcement actions. Sources sections 110(l) and 193 considerations might apply. These examples are from Steven A. Herman and Robert retain all of the equitable arguments Perciasepe, USEPA, Subject: State intended to provide general guidance on they could have made under an Implementation Plans: Policy Regarding the considerations and the nature of the affirmative defense provision; they must Excess Emissions During Malfunctions, analysis that may be appropriate for simply make such arguments to the Startup, and Shutdown, dated September different types of SIP revisions. Air 20, 1999), EPA–HQ–OAR–2012–0322– reviewing court as envisioned by agencies should contact their respective 0007. Congress in section 113(b) and section EPA Regional Offices (see the 4. 2001 SSM Guidance (Memorandum to EPA 113(e). SUPPLEMENTARY INFORMATION section of Regional Administrators, Regions I–X Once impermissible SSM exemptions this document) for further from Eric Schaeffer, Director, Office of Regulatory Enforcement, Office of are removed from the SIP, then any recommendations and assistance Enforcement and Compliance Assurance, excess emissions during such events concerning the analysis appropriate for and John S. Seitz, Director, Office of Air may be the subject of an enforcement specific SIP revisions involving changes Quality Planning and Standards, Office action, in which the parties may use any in SSM provisions. of Air and Radiation, dated December 5, appropriate evidence to prove or 2001), EPA–HQ–OAR–2012–0322–0038. XII. Environmental Justice disprove the existence and scope of the 5. ‘‘Action to Ensure Authority To Issue Consideration alleged violation and the appropriate Permits Under the Prevention of Significant Deterioration Program to remedy for an established violation. The final action restates the EPA’s interpretation of the statutory Sources of Greenhouse Gas Emissions: Any alleged violation of an applicable Finding of Substantial Inadequacy and SIP emission limitation, if not conceded requirements of the CAA. Through the SIP Call; Final rule,’’ 75 FR 77698 by the source, must be established by SIP calls issued to certain states as part (December 13, 2010), EPA–HQ–OAR– the party bearing the burden of proof in of this SIP call action under CAA 2012–0322–0014. a legal proceeding. The degree to which section 110(k)(5), the EPA is only 6. Am. Farm Bureau Fedn v. United States evidence of an alleged violation may requiring each affected state to revise its EPA, 984 F.Supp.2d 289 (M.D. Pa. 2013). SIP to comply with existing 7. Appalachian Power Co. v. EPA, 249 F.3d derive from a specific reference method 1032 (D.C. Cir. 2001). or any other credible evidence must be requirements of the CAA. The EPA’s action therefore leaves to each affected 8. Appalachian Power Co. v. EPA, 251 F.3d determined based upon the facts and 1026 (D.C. Cir. 2001). circumstances of the exceedance of the state the choice as to how to revise the 9. ‘‘Approval and Disapproval and emission limitation at issue.413 Congress SIP provision in question to make it Promulgation of Air Quality consistent with CAA requirements and vested the federal courts with the Implementation Plans; Colorado; to determine, among other things, which authority to judge how best to weigh the Revisions to Regulation 1; Notice of of the several lawful approaches to the proposed rulemaking,’’ 75 FR 42342 evidence in an enforcement action. treatment of excess emissions during (July 21, 2010), EPA–HQ–OAR–2012– SSM events will be applied to particular 0322–0015, finalized as proposed at 76 413 For example, the degree to which data from FR 4540 (January 26, 2011), EPA–HQ– continuous opacity monitoring systems (COMS) is sources. The EPA has not performed an environmental justice analysis for OAR–2012–0322–0016. evidence of violations of SIP opacity or PM mass 10. ‘‘Approval and Promulgation of Air emission limitations is a factual question that must purposes of this action, because it Quality Implementation Plans; New be resolved on the facts and circumstances in the cannot geographically locate or quantify context of an enforcement action. See, e.g., Sierra Hampshire; Reasonably Available Club v. Pub. Serv. Co. of Colorado, Inc., 894 F.Supp. the resulting source-specific emission Control Technology for the 1997 8-Hour 1455 (D. Colo. 1995) (allowing use of COMS data reductions. Nevertheless, the EPA Ozone Standard; Direct final rule,’’ 77 FR to prove opacity limit violations). believes this action will provide 66388 (November 5, 2012).

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11. ‘‘Approval and Promulgation of Air FR 33101 (June 10, 2014), EPA–HQ– 39. EME Homer City Generation, L.P. v. EPA, Quality Implementation Plans; New OAR–2012–0322–0890. 696 F.3d 7 (D.C. Cir. 2012) rev’d, 134 S. Hampshire; Reasonably Available 21. ‘‘Approval and Promulgation of Ct. 1584 (2014). Control Technology Update To Address Implementation Plans; North Dakota; 40. ‘‘Emissions Inventory Guidance for Control Techniques Guidelines Issued in Revisions to the Air Pollution Control Implementation of Ozone and Particulate 2006, 2007, and 2008; Direct final rule,’’ Rules; Final rule,’’ 79 FR 63045 (October Matter National Ambient Air Quality 77 FR 66921 (November 8, 2012). 22, 2014). Standards (NAAQS) and Regional Haze 12. ‘‘Approval and Promulgation of Air 22. ‘‘Approval and Promulgation of Regulations,’’ Appendix B, August 2005, Quality Implementation Plans; Implementation Plans; Texas; Excess EPA–454/R–05–001. Pennsylvania; Redesignation, Emissions During Startup, Shutdown, 41. ‘‘Federal Implementation Plan for the Maintenance Plan, and Emissions Maintenance, and Malfunction Billings/Laurel, MT [Montana], Sulfur Inventories for Reading; Ozone Activities,’’ 75 FR 68989 (November 10, Dioxide Area,’’ 73 FR 21418 (April 21, Redesignations Policy Change; Final 2010), EPA–HQ–OAR–2012–0322–0892. 2008), EPA–HQ–OAR–2012–0322–0009. rule,’’ 62 FR 24826 (May 7, 1997). 23. ‘‘Approval and Promulgation of 42. FCC v. Fox Television Stations, Inc., 556 13. ‘‘Approval and Promulgation of Air Implementation Plans; Texas; Revisions U.S. 502 (2009). Quality Implementation Plans; Utah; to the New Source Review (NSR) State 43. February 2013 proposal (‘‘State Redesignation Request and Maintenance Implementation Plan (SIP); Prevention of Implementation Plans: Response to Plan for Salt Lake County; Utah County; Significant Deterioration (PSD), Petition for Rulemaking; Findings of Ogden City PM10 Nonattainment Area; Nonattainment NSR (NNSR) for the 1997 Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Proposed rule,’’ 74 FR 62717 (December 8-Hour Ozone Standard, NSR Reform, Emissions During Periods of Startup, 1, 2009). and a Standard Permit; Proposed rule,’’ 14. ‘‘Approval and Promulgation of Shutdown, and Malfunction; Proposed 74 FR 48467 (September 23, 2009). Implementation Plans and Designation of rule,’’ 78 FR 12459, February 22, 2013), 24. ‘‘Approval and Promulgation of Areas for Air Quality Planning Purposes; EPA–HQ–OAR–2012–0322–0055. Implementation Plans; Wyoming; State of Arizona; Redesignation of 44. ‘‘Finding of Significant Contribution and Revisions to the Air Quality Standards Phoenix-Mesa Area to Attainment for the Rulemaking for Certain States in the and Regulations,’’ 79 FR 62859 (October 1997 8-Hour Ozone Standard; Final Ozone Transport Assessment Group 21, 2014). rule,’’ 79 FR 55645 (September 17, 2014). Region for Purposes of Reducing 25. ‘‘Approval and Promulgation of State 15. ‘‘Approval and Promulgation of Regional Transport of Ozone,’’ 63 FR Implementation Plans; Call for Sulfur Implementation Plans and Designation of 57356 (October 27, 1998), EPA–HQ– Dioxide SIP Revisions for Billings/ Areas for Air Quality Planning Purposes; OAR–2012–0322–0037. Laurel, MT [Montana],’’ 58 FR 41430 Ohio; Redesignation of the Ohio Portion 45. ‘‘Finding of Substantial Inadequacy of (August 4, 1993). of the Huntington-Ashland 1997 Annual Implementation Plan; Call for Utah State Fine Particulate Matter Nonattainment 26. ‘‘Approval and Promulgation of State Implementation Plan Revision,’’ 76 FR Area to Attainment; Final rule,’’ 77 FR Implementation Plans; Michigan,’’ 63 FR 21639 (April 18, 2011), EPA–HQ–OAR– 76883 (December 31, 2012). 8573 (February 20, 1998), EPA–HQ– 2012–0322–0010. 16. ‘‘Approval and Promulgation of OAR–2012–0322–0023. 46. ‘‘Finding of Substantial Inadequacy of Implementation Plans and Designation of 27. Arizona Public Service Co. v. EPA, 562 Implementation Plan; Call for Utah State Areas for Air Quality Planning Purposes; F.3d 1116 (10th Cir. 2009). Implementation Plan Revision,’’ 75 FR State of Arizona; Redesignation of the 28. ATK Launch Systems, Inc. v. EPA, 651 70888 (November 19, 2010), EPA–HQ– Phoenix-Mesa Nonattainment Area to F.3d 1194 (10th Cir. 2011). OAR–2012–0322–0012. Attainment for the 1997 8-Hour Ozone 29. Auer v. Robbins, 519 U.S. 452 (1997). 47. ‘‘Finding of Substantial Inadequacy of Standard; Proposed rule,’’ 79 FR 16734 30. CAA of 1970, Pub. L. 91–604, section Implementation Plan; Call for Iowa State (March 26, 2014). 4(a), 84 Stat. 1676 (December 31, 1970). Implementation Plan Revision,’’ 76 FR 17. ‘‘Approval and Promulgation of 31. Catawba County, North Carolina v. EPA, 41424 (July 14, 2011). Implementation Plans; Arkansas; 571 F.3d 20 (D.C. Cir. 2009). 48. ‘‘Finding of Substantial Inadequacy of Revisions for the Regulation and 32. Chevron, U.S.A., Inc. v. Natural Res. Def. Implementation Plan; Call for California Permitting of Fine Particulate Matter; Council, Inc., 467 U.S. 837 (1984). State Implementation Plan Revision,’’ 68 Final rule,’’ 80 FR 11573 (March 4, 33. ‘‘Clean Air Act Full Approval of Partial FR 37746 (June 25, 2003). 2015). Operating Permit Program; Allegheny 49. Florida Power & Light Co. v. Costle, 650 18. ‘‘Approval and Promulgation of County; Pennsylvania; Direct final rule,’’ F.2d 579 (5th Cir. 1981). Implementation Plans; Corrections to the 66 FR 55112 (November 1, 2001), EPA– 50. Florida Power & Light Co. v. United Arizona and Nevada State HQ–OAR–2012–0322–0020. States, 846 F.2d 765 (D.C. Cir. 1988). Implementation Plans; Direct final rule,’’ 34. Conn. Light & Power Co. v. NRC, 673 F.2d 51. ‘‘Guidance on the Use of Models and 74 FR 57051 (November 3, 2009), EPA– 525 (D.C. Cir. 1982). Other Analyses for Demonstrating HQ–OAR–2012–0322–0018. 35. ‘‘Correction of Implementation Plans; Attainment of Air Quality Goals for 19. ‘‘Approval and Promulgation of American Samoa, Arizona, California, Ozone, PM2.5, and Regional Haze,’’ April Implementation Plans; Designation of Hawaii, and Nevada State 2007, EPA–454/B–07–002. Areas for Air Quality Planning Purposes; Implementation Plans; Notice of 52. ‘‘Guidelines for Estimating and Applying State of California; PM–10; Revision of proposed rulemaking,’’ 61 FR 38664 Rule Effectiveness for Ozone/CO State Designation; Redesignation of the San (July 25, 1996), EPA–HQ–OAR–2012– Implementation Plan Base Year Joaquin Valley Air Basin PM–10 0322–0034, finalized at 62 FR 34641 Inventories,’’ November 1992, EPA– Nonattainment Area to Attainment; (June 27, 1997), EPA–HQ–OAR–2012– 4S2JR–92.010. Approval of PM–10 Maintenance Plan 0322–0035. 53. H. Rept. 101–490. for the San Joaquin Valley Air Basin; 36. ‘‘Corrections to the California State 54. H.R. 95–294 (1977). Approval of Commitments for the East Implementation Plan,’’ 69 FR 67062 55. Howmet Corp. v. EPA, 614 F.3d 544 (D.C. Kern PM–10 Nonattainment Area; (November 16, 2004), EPA–HQ–OAR– Cir. 2010). Proposed rule,’’ 73 FR 22307 (April 25, 2012–0322–0017. 56. Industrial Environmental Association v. 2008). 37. ‘‘Credible Evidence Revisions; Final Browner, No. 97–71117 (9th Cir. May 26, 20. ‘‘Approval and Promulgation of rule,’’ 62 FR 8314 (February 24, 1997). 2000). Implementation Plans; Kentucky; 38. ‘‘Draft Emissions Inventory Guidance for 57. Ky. Res Council v. EPA, 467 F.3d 986 (6th Approval of Revisions to the Jefferson Implementation of Ozone [and Cir. 2006). County Portion of the Kentucky SIP; Particulate Matter]* National Ambient 58. Luminant Generation v. EPA, 714 F.3d Emissions During Startups, Shutdowns, Air Quality Standards (NAAQS) and 841 (5th Cir. 2013) [EPA–HQ–OAR– and Malfunctions,’’ proposed at 78 FR Regional Haze Regulations,’’ April 11, 2012–0322–0881], cert. denied, 134 S. 29683 (May 21, 2013) and finalized at 79 2014. Ct. 387 (2013).

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59. Memorandum, ‘‘Additional Clarification Plans under Section 110 of the Clean Air extension of public comment period,’’ 78 Regarding Application of Appendix W Act Due to Startup, Shutdown, FR 20855 (April 8, 2013), EPA–HQ– Modeling Guidance for the 1-hour NO2 Malfunction, and/or Maintenance OAR–2012–0322–0126. National Ambient Air Quality Standard,’’ Provisions,’’ on behalf of Sierra Club, 95. ‘‘State Implementation Plans; General from T. Fox, EPA/OAQPS, to Regional dated June 30, 2011), EPA–HQ–OAR– Preamble for the Implementation of Title Air Division Directors, March 1, 2011. 2012–0322–0003. I of the Clean Air Act Amendments of 60. Memorandum, ‘‘Estimate of Potential 81. ‘‘Proposed Settlement Agreement, Clean 1990,’’ 57 FR 13498 (April 16, 1992). Direct Costs of SSM SIP Calls to Air Air Act Citizen Suit,’’ 76 FR 54465 96. Tex Tin Corp. v. EPA, 992 F.2d 353 (D.C. Agencies,’’ April 28, 2015. (September 1, 2011). Cir. 1993). 61. Memorandum, ‘‘Guidance on 82. ‘‘Requirements for Preparation, Adoption, 97. Texas v. EPA, No. 10–60961, 2011 WL Infrastructure State Implementation Plan and Submittal of Implementation Plans; 710498 (5th Cir. Feb. 24, 2011). (SIP) Elements under Clean Air Act Approval and Promulgation of 98. Train v. NRDC, 421 U.S. 60 (1975). Section 110(a)(1) and 110(a)(2),’’ from Implementation Plans; Final rules,’’ 45 99. U.S. v. Ford Motor Co., 736 F.Supp. 1539 Stephen D. Page, Director, OAQPS, to FR 52676 (August 7, 1980). (W.D. Mo. 1990). Regional Air Directors, Regions 1–10, 83. ‘‘Standards of Performance for Fossil- 100. U.S. v. General Motors Corp., 702 September 13, 2013. Fuel-Fired Steam Generators for Which F.Supp. 133 (N.D. Texas 1988). 62. Memorandum, ‘‘Statutory, Regulatory, Construction Is Commenced After 101. Union Elec. Co. v. EPA, 427 U.S. 246 and Policy Context for this Rulemaking,’’ August 17, 1971; Standards of (1976). February 4, 2013, EPA–HQ–OAR–2012– Performance for Electric Utility Steam 102. US Magnesium, LLC v. EPA, 690 F.3d 0322–0029 (Background Memorandum). Generating Units for Which Construction 1157 (10th Cir. 2012), EPA–HQ–OAR– 63. Mich. Dep’t of Envtl. Quality v. Browner, Is Commenced After September 18, 1978; 2012–0322–0031. 230 F.3d 181 (6th Cir. 2000). Standards of Performance for Industrial- 103. Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 64. Michigan v. EPA, 213 F.3d 663 (D.C. Cir. Commercial-Institutional Steam 1997). 2000). Generating Units; and Standards of 104. Wall v. EPA, 265 F.3d 426 (6th Cir. 65. Mid-Tex Elec. Co-op, Inc. v. FERC, 773 Performance for Small Industrial- 2001). F.2d 327 (D.C. Cir. 1985). Commercial-Institutional Steam 105. Wyo. Outdoor Council v. U.S. Forest 66. Montana Sulphur & Chemical Co. v. EPA, Generating Units; Final rule,’’ 74 FR Serv., 165 F.3d 43 (D.C. Cir. 1999). 666 F.3d 1174 (9th Cir. 2012) [EPA–HQ– 5072 (January 28, 2009). OAR–2012–0322–0032], cert. denied, 84. S. Rep No. 91–1196 (1970). XIV. Statutory and Executive Order 133 S. Ct. 409 (2012). 85. ‘‘Selection of Sequence of Mandatory Reviews 67. Motor Vehicle Mfrs Ass’n v. State Farm Sanctions for Findings Made Pursuant to Mut. Auto Ins. Co., 463 U.S. 29 (1983). Section 179 of the Clean Air Act,’’ 59 FR A. Executive Order 12866: Regulatory 68. ‘‘National Emission Standards for 39832 (August 4, 1994), EPA–HQ–OAR– Planning and Review and Executive Hazardous Air Pollutants for Major 2012–0322–0033, codified at 40 CFR Order 13563: Improving Regulation and Sources: Industrial, Commercial, and 52.31. Regulatory Review Institutional Boilers and Process Heaters; 86. Settlement Agreement executed Proposed rule,’’ 80 FR 3089 (January 21, This action is a ‘‘significant regulatory November 30, 2011, to address a lawsuit 2015). filed by Sierra Club and WildEarth action’’ that was submitted to the Office 69. ‘‘National Emission Standards for of Management and Budget (OMB) for Hazardous Air Pollutants Residual Risk Guardians in the United States District Court for the Northern District of review because it raises novel legal or and Technology Review for Flexible policy issues. Any changes made in Polyurethane Foam Production; Final California, in Sierra Club et al. v. rule,’’ 79 FR 48073 (August 15, 2014). Jackson, No. 3:10–cv–04060–CRB (N.D. response to OMB recommendations 70. ‘‘National Emission Standards for Cal.), EPA–HQ–OAR–2012–0322–0039. have been documented in the docket. 87. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. Hazardous Air Pollutants: Generic B. Paperwork Reduction Act (PRA) Maximum Achievable Control 2004). Technology Standards; and Manufacture 88. Sierra Club v. Georgia Power Co., 443 This action does not impose an of Amino/Phenolic Resins; Final rule,’’ F.3d 1346 (11th Cir. 2006). information collection burden under the 79 FR 60897 (October 8, 2014). 89. Sierra Club v. Johnson, 551 F.3d 1019 PRA. This action merely reiterates the (D.C. Cir. 2008), EPA–HQ–OAR–2012– 71. Nat’l Cable & Telecomms. Ass’n v. Brand EPA’s interpretation of the statutory X Internet Servs., 545 U.S. 967 (2005). 0322–0048. 90. Sierra Club v. Pub. Serv. Co. of Colorado, requirements of the CAA and does not 72. Nat’l Gypsum v. EPA, 968 F.2d 40 (D.C. require states to collect any additional Cir. 1992). Inc., 894 F.Supp. 1455 (D. Colo. 1995). 73. New Hampshire v. Maine, 532 U.S. 742 91. SNPR (‘‘State Implementation Plans: information. Through the SIP calls (2011). Response to Petition for Rulemaking; issued to certain states as part of this 74. North Dakota v. EPA, 730 F.3d 750 (8th Findings of Substantial Inadequacy; and action under CAA section 110(k)(5), the Cir. 2013), cert. denied, 134 S. Ct. 2662 SIP Calls To Amend Provisions Applying EPA is only requiring each affected state (2014). to Excess Emissions During Periods of to revise its SIP to comply with existing 75. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. Startup, Shutdown and Malfunction; requirements of the CAA. 2014), EPA–HQ–OAR–2012–0322–0885. Supplemental Proposal To Address 76. Oklahoma v. EPA, 723 F.3d 1201 (10th Affirmative Defense Provisions in States C. Regulatory Flexibility Act (RFA) Included in the Petition for Rulemaking Cir. 2013), cert. denied, 134 S. Ct. 2662 I certify that this action will not have (2014). and in Additional States; Supplemental 77. ‘‘Oil and Natural Gas Sector: notice of proposed rulemaking,’’ 79 FR a significant economic impact on a Reconsideration of Additional Provisions 55919, September 17, 2014), EPA–HQ– substantial number of small entities of New Source Performance Standards; OAR–2012–0322–0909. under the RFA. In making this Final rule,’’ 79 FR 79017 (December 31, 92. Southwestern Pennsylvania Growth determination, the impact of concern is 2014). Alliance v. EPA, 114 F.3d 984 (6th Cir. any significant adverse economic 78. ‘‘Oil and Natural Gas Sector: 1998). impact on small entities. Any agency Reconsideration of Additional Provisions 93. State Farm Mut. Auto Ins. Co. v. may certify that a rule will not have a of New Source Performance Standards; Campbell, 538 U.S. 408 (2003). significant economic impact on a 94. ‘‘State Implementation Plans: Response to Proposed rule,’’ 79 FR 41752 (July 17, substantial number of small entities if 2014). Petition for Rulemaking; Findings of 79. Omnipoint Corp. v. Fed. Commc’ns Substantial Inadequacy; and SIP Calls To the rule relieves regulatory burden, has Comm’n, 78 F.3d 620 (D.C. Cir. 1996). Amend Provisions Applying to Excess no net burden or otherwise has a 80. Petition (‘‘Petition to Find Inadequate and Emissions During Periods of Startup, positive economic effect on the small Correct Several State Implementation Shutdown, and Malfunction; Notice of entities subject to this rule. This action

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will not impose any requirements on environmental health or safety risks that ‘‘such other actions as the Administrator small entities. Instead, the action merely the EPA has reason to believe may may determine.’’ reiterates the EPA’s interpretation of the disproportionately affect children, per L. Congressional Review Act (CRA) statutory requirements of the CAA. the definition of ‘‘covered regulatory Through the SIP calls issued to certain action’’ in section 2–202 of the This action is subject to the CRA, and states as part of this SIP call action Executive Order. This action is not the EPA will submit a rule report to under CAA section 110(k)(5), the EPA is subject to Executive Order 13045 each House of the Congress and to the only requiring each affected state to because, in prescribing the EPA’s action Comptroller General of the United revise its SIP to comply with existing for states regarding their obligations for States. This action is not a ‘‘major rule’’ requirements of the CAA. The EPA’s SIPs under the CAA, it implements as defined by 5 U.S.C. 804(2). action therefore leaves to each affected specific standards established by state the choice as to how to revise the Congress in statutes. XV. Judicial Review SIP provision in question to make it H. Executive Order 13211: Actions The Administrator determines that consistent with CAA requirements and Concerning Regulations That this action is ‘‘nationally applicable’’ to determine, among other things, which Significantly Affect Energy Supply, within the meaning of section 307(b)(1) of the several lawful approaches to the Distribution or Use of the CAA. This action in scope and treatment of excess emissions during effect extends to numerous judicial SSM events will be applied to particular This action is not a ‘‘significant circuits because the action on the sources. energy action’’ because it is not likely to Petition extends to states throughout the have a significant adverse effect on the country. In these circumstances, section D. Unfunded Mandates Reform Act supply, distribution or use of energy. (UMRA) 307(b)(1) and its legislative history This action merely prescribes the EPA’s authorize the Administrator to find the This action does not contain any action for states regarding their action to be of ‘‘nationwide scope or federal mandate as described in UMRA, obligations for SIPs under the CAA. effect’’ and thus to indicate the venue 2 U.S.C. 1531–1538, and does not I. National Technology Transfer and for challenges to be in the D.C Circuit. significantly or uniquely affect small Advancement Act (NTTAA) Thus, any petitions for review must be governments. The action imposes no This rulemaking does not involve filed in the U.S. Court of Appeals for the new enforceable duty on any state, local District of Columbia Circuit. or tribal governments or the private technical standards. In addition, pursuant to CAA section sector. The regulatory requirements of J. Executive Order 12898: Federal 307(d)(1)(V), the EPA is determining this action apply to certain states for Actions To Address Environmental that this rulemaking action is subject to which the EPA is issuing a SIP call. To Justice in Minority Populations and the requirements of section 307(d), the extent that such affected states allow Low-Income Populations which establish procedural local air districts or planning requirements specific to rulemaking organizations to implement portions of The EPA believes the human health or under the CAA. In the event there is a the state’s obligation under the CAA, the environmental risk addressed by this judicial challenge to this action and a regulatory requirements of this action action will not have potential court determines that the EPA has erred do not significantly or uniquely affect disproportionately high and adverse with respect to any portion of this small governments because those human health or environmental effects action, the EPA intends the components governments have already undertaken on minority, low-income or indigenous of this action to be severable. the obligation to comply with the CAA. populations. The action is intended to ensure that all communities and XVI. Statutory Authority E. Executive Order 13132: Federalism populations across the affected states, This action does not have federalism including minority, low-income and The statutory authority for this action implications. It will not have substantial indigenous populations overburdened is provided by CAA section 101 et seq. direct effects on the states, on the by pollution, receive the full human (42 U.S.C. 7401 et seq.). health and environmental protection relationship between the national List of Subjects in 40 CFR Part 52 government and the states, or on the provided by the CAA. This action distribution of power and concerns states’ obligations regarding Environmental protection, Affirmative responsibilities among the various the treatment they give, in rules defense, Air pollution control, Carbon levels of government. included in their SIPs under the CAA, dioxide, Carbon dioxide equivalents, to excess emissions during startup, Carbon monoxide, Excess emissions, F. Executive Order 13175: Consultation shutdown and malfunctions. This action Greenhouse gases, Hydrofluorocarbons, and Coordination With Indian Tribal requires that certain states bring their Incorporation by reference, Governments treatment of these emissions into line Intergovernmental relations, Lead, This action does not have tribal with CAA requirements, which will Methane, Nitrogen dioxide, Nitrous implications as specified in Executive lead to certain sources’ having greater oxide, Ozone, Particulate matter, Order 13175. In this action, the EPA is incentives to control emissions during Perfluorocarbons, Reporting and not addressing any tribal such events. recordkeeping requirements, Startup, implementation plans. This action is K. Determination Under Section 307(d) shutdown and malfunction, State limited to states. Thus, Executive Order implementation plan, Sulfur 13175 does not apply to this action. Pursuant to CAA section 307(d)(1)(V), hexafluoride, Sulfur oxides, Volatile the Administrator determines that this organic compounds. G. Executive Order 13045: Protection of action is subject to the provisions of Children From Environmental Health section 307(d). Section 307(d) Dated: May 22, 2015. Risks and Safety Risks establishes procedural requirements Gina McCarthy, The EPA interprets Executive Order specific to rulemaking under the CAA. Administrator. 13045 as applying only to those Section 307(d)(1)(V) provides that the [FR Doc. 2015–12905 Filed 6–11–15; 8:45 am] regulatory actions that concern provisions of section 307(d) apply to BILLING CODE 6560–50–P

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