[Federal Register Volume 80, Number 113 (Friday, June 12, 2015)]
[Rules and Regulations]
[Pages 33840-33985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12905]



[[Page 33839]]

Vol. 80

Friday,

No. 113

June 12, 2015

Part IV





Environmental Protection Agency





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40 CFR Part 52





State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction; Final Rule

  Federal Register / Vol. 80 , No. 113 / Friday, June 12, 2015 / Rules 
and Regulations  

[[Page 33840]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2012-0322; FRL-9924-05-OAR]
RIN 2060-AR68


State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and Malfunction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on a petition for rulemaking filed by the Sierra Club 
(Petitioner) that concerns how provisions in EPA-approved state 
implementation plans (SIPs) treat excess emissions during periods of 
startup, shutdown or malfunction (SSM). Further, the EPA is clarifying, 
restating and revising its guidance concerning its interpretation of 
the Clean Air Act (CAA or Act) requirements with respect to treatment 
in SIPs of excess emissions that occur during periods of SSM. The EPA 
evaluated existing SIP provisions in a number of states for consistency 
with the EPA's interpretation of the CAA and in light of recent court 
decisions addressing this issue. The EPA is issuing a finding that 
certain SIP provisions in 36 states (applicable in 45 statewide and 
local jurisdictions) are substantially inadequate to meet CAA 
requirements and thus is issuing a ``SIP call'' for each of those 36 
states. Further, the EPA is establishing a due date for states subject 
to this SIP call action to submit corrective SIP revisions. Finally, 
this final action embodies the EPA's updated SSM Policy as it applies 
to SIP provisions. The SSM Policy provides guidance to states for 
compliance with CAA requirements for SIP provisions applicable to 
excess emissions during SSM events.

DATES: This final action shall become applicable on May 22, 2015. The 
deadline for each affected state to submit its corrective SIP revision 
is November 22, 2016.

ADDRESSES: The EPA has established a docket for this rulemaking under 
Docket ID No. EPA-HQ-OAR-2012-0322. All documents in the docket are 
listed in the http://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically at 
http://www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, EPA Docket Center, William Jefferson Clinton West 
Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Office 
of Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, U.S. EPA, Office of 
Air Quality Planning and Standards, State and Local Programs Group 
(C539-01), Research Triangle Park, NC 27711, telephone number (919) 
541-3450, email address: [email protected].

SUPPLEMENTARY INFORMATION: For information related to a specific SIP, 
please contact the appropriate EPA Regional Office:

------------------------------------------------------------------------
                           Contact for Regional
                             Office  (person,
  EPA Regional  Office       mailing address,              State
                            telephone number)
------------------------------------------------------------------------
I......................  Alison Simcox,           Connecticut,
                          Environmental            Massachusetts, Maine,
                          Scientist, EPA Region    New Hampshire, Rhode
                          1, 5 Post Office         Island and Vermont.
                          Square, Suite 100,
                          Boston, MA 02109-3912,
                          (617) 918-1684.
II.....................  Karl Mangels, Chief,     New Jersey, New York,
                          Air Planning Section,    Puerto Rico and
                          EPA Region 2, 290        Virgin Islands.
                          Broadway, 25th Floor,
                          New York, NY 10007-
                          1866, (212) 637-4078.
III....................  Amy Johansen, EPA        District of Columbia,
                          Region 3, 1650 Arch      Delaware, Maryland,
                          Street, Philadelphia,    Pennsylvania,
                          PA 19103-2029, (215)     Virginia and West
                          814-2156.                Virginia.
IV.....................  Joel Huey, EPA Region    Alabama, Florida,
                          4, Atlanta Federal       Georgia, Kentucky,
                          Center, 61 Forsyth       Mississippi, North
                          Street SW., Atlanta,     Carolina, South
                          GA 30303-8960, (404)     Carolina and
                          562-9104.                Tennessee.
V......................  Mary Portanova, Air and  Illinois, Indiana,
                          Radiation Division (AR-  Michigan, Minnesota,
                          18J), EPA Region 5, 77   Ohio and Wisconsin.
                          West Jackson
                          Boulevard, Chicago, IL
                          60604-3507, (312) 353-
                          5954.
VI.....................  Alan Shar (6PD-L), EPA   Arkansas, Louisiana,
                          Region 6, Fountain       New Mexico, Oklahoma
                          Place 12th Floor,        and Texas.
                          Suite 1200, 1445 Ross
                          Avenue, Dallas, TX
                          75202-2733, (214) 665-
                          6691.
VII....................  Lachala Kemp, EPA        Iowa, Kansas, Missouri
                          Region 7, Air Planning   and Nebraska.
                          and Development
                          Branch, 11201 Renner
                          Boulevard, Lenexa, KS
                          66219-9601, (913) 551-
                          7214. Alternate
                          contact is Ward Burns,
                          (913) 551-7960.
VIII...................  Adam Clark, Air Quality  Colorado, Montana,
                          Planning Unit (8P-AR)    North Dakota, South
                          Air Program, EPA         Dakota, Utah and
                          Region 8, 1595 Wynkoop   Wyoming.
                          Street, Denver, CO
                          80202-1129, (303) 312-
                          7104.
IX.....................  Andrew Steckel, EPA      Arizona, California,
                          Region 9, Air            Hawaii, Nevada and
                          Division, 75 Hawthorne   the Pacific Islands.
                          Street (AIR-4), San
                          Francisco, CA 94105-
                          3901, (415) 947-4115.
X......................  Dave Bray, Office of     Alaska, Idaho, Oregon,
                          Air, Waste and Toxics    and Washington.
                          (AWT-150), EPA Region
                          10, 1200 Sixth Avenue,
                          Suite 900, Seattle, WA
                          98101-3140, (206) 553-
                          4253.
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[[Page 33841]]

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action include states, U.S. 
territories, local authorities and eligible tribes that are currently 
administering, or may in the future administer, EPA-approved 
implementation plans (``air agencies'').\1\ The EPA's action on the 
petition for rulemaking filed by the Sierra Club with the EPA 
Administrator on June 30, 2011 (the Petition), is potentially of 
interest to all such entities because the EPA is addressing issues 
related to basic CAA requirements for SIPs. The particular issues 
addressed in this rulemaking are the same issues that the Petition 
identified, which relate specifically to section 110 of the CAA. 
Pursuant to section 110, through what is generally referred to as the 
``SIP program,'' the states and the EPA together provide for 
implementation, maintenance and enforcement of the national ambient air 
quality standards (NAAQS). While recognizing similarity to (and in some 
instances overlap with) issues concerning other air programs, e.g., 
concerning SSM provisions in the EPA's regulatory programs for New 
Source Performance Standards (NSPS) pursuant to section 111 and 
National Emission Standards for Hazardous Air Pollutants (NESHAP) 
pursuant to section 112, the EPA notes that the issues addressed in 
this rulemaking are specific to SSM provisions in the SIP program. 
Through this rulemaking, the EPA is both clarifying and applying its 
interpretation of the CAA with respect to SIP provisions applicable to 
excess emissions during SSM events in general. In addition, the EPA is 
issuing findings that some of the specific SIP provisions in some of 
the states identified in the Petition and some SIP provisions in 
additional states are substantially inadequate to meet CAA 
requirements, pursuant to CAA section 110(k)(5), and thus those states 
(named in section II.C of this document) are directly affected by this 
rulemaking. For example, where a state's existing SIP includes an 
affirmative defense provision that would purport to alter the 
jurisdiction of the federal courts to assess monetary penalties for 
violations of CAA requirements, then the EPA is determining that the 
SIP provision is substantially inadequate because the provision is 
inconsistent with fundamental requirements of the CAA. This action may 
also be of interest to the public and to owners and operators of 
industrial facilities that are subject to emission limitations in SIPs, 
because it will require changes to certain state rules applicable to 
excess emissions during SSM events. This action embodies the EPA's 
updated SSM Policy concerning CAA requirements for SIP provisions 
relevant to excess emissions during SSM events.
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    \1\ The EPA respects the unique relationship between the U.S. 
government and tribal authorities and acknowledges that tribal 
concerns are not interchangeable with state concerns. Under the CAA 
and EPA regulations, a tribe may, but is not required to, apply for 
eligibility to have a tribal implementation plan (TIP). For 
convenience, the EPA refers to ``air agencies'' in this rulemaking 
collectively when meaning to refer in general to states, the 
District of Columbia, U.S. territories, local air permitting 
authorities and eligible tribes that are currently administering, or 
may in the future administer, EPA-approved implementation plans. 
This final action does not include action on any provisions in any 
TIP. The EPA therefore refers to ``state'' or ``states'' rather than 
``air agency'' or ``air agencies'' when meaning to refer to the 
District of Columbia and/or one, some, or all of the states at issue 
in this rulemaking. The EPA also uses ``state'' or ``states'' rather 
than ``air agency'' or ``air agencies'' when quoting or paraphrasing 
the CAA or other document that uses that term even when the original 
referenced passage may have applicability to tribes as well.
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B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this document will also be available on the World Wide Web. Following 
signature by the EPA Administrator, a copy of this document will be 
posted on the EPA's Web site, under ``State Implementation Plans to 
Address Emissions During Startup, Shutdown and Malfunction,'' at http://www.epa.gov/air/urbanair/sipstatus. The EPA's initial proposed 
response to the Petition in the February 2013 proposal, the EPA's 
revised proposed response to the Petition in the September 2014 
supplemental notice of proposed rulemaking (SNPR) and the EPA's 
Response to Comments document may be found in the docket for this 
action.

C. How is the preamble organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
    C. How is the preamble organized?
    D. What is the meaning of key terms used in this document?
II. Overview of Final Action and Its Consequences
    A. Summary
    B. What the Petitioner Requested
    C. To which air agencies does this rulemaking apply and why?
    D. What are the next steps for states that are receiving a 
finding of substantial inadequacy and a SIP call?
    E. What are potential impacts on affected states and sources?
    F. What happens if an affected state fails to meet the SIP 
submission deadline?
    G. What is the status of SIP provisions affected by this SIP 
call action in the interim period starting when the EPA promulgates 
the final SIP call and ending when the EPA approves the required SIP 
revision?
III. Statutory, Regulatory and Policy Background
IV. Final Action in Response to Request To Rescind the EPA Policy 
Interpreting the CAA To Allow Affirmative Defense Provisions
    A. What the Petitioner Requested
    B. What the EPA Proposed
    C. What Is Being Finalized in This Action
    D. Response to Comments Concerning Affirmative Defense 
Provisions in SIPs
V. Generally Applicable Aspects of the Final Action in Response to 
Request for the EPA's Review of Specific Existing SIP Provisions for 
Consistency With CAA Requirements
    A. What the Petitioner Requested
    B. What the EPA Proposed
    C. What Is Being Finalized in This Action
    D. Response to Comments Concerning the CAA Requirements for SIP 
Provisions Applicable to SSM Events
VI. Final Action in Response to Request That the EPA Limit SIP 
Approval to the Text of State Regulations and Not Rely Upon 
Additional Interpretive Letters From the State
    A. What the Petitioner Requested
    B. What the EPA Proposed
    C. What Is Being Finalized In This Action
    D. Response to Comments Concerning Reliance on Interpretive 
Letters in SIP Revisions
VII. Clarifications, Reiterations and Revisions to the EPA's SSM 
Policy
    A. Applicability of Emission Limitations During Periods of SSM
    1. What the EPA Proposed
    2. What Is Being Finalized in This Action
    3. Response to Comments
    B. Alternative Emission Limitations During Periods of Startup 
and Shutdown
    1. What the EPA Proposed
    2. What Is Being Finalized in This Action
    3. Response to Comments
    C. Director's Discretion Provisions Pertaining to SSM Events
    1. What the EPA Proposed
    2. What Is Being Finalized in This Action
    3. Response to Comments
    D. Enforcement Discretion Provisions Pertaining to SSM Events
    1. What the EPA Proposed
    2. What Is Being Finalized in This Action
    3. Response to Comments
    E. Affirmative Defense Provisions in SIPs During Any Period of 
Operation
    F. Relationship Between SIP Provisions and Title V Regulations
    G. Intended Effect of the EPA's Action on the Petition
VIII. Legal Authority, Process and Timing for SIP Calls
    A. SIP Call Authority Under Section 110(k)(5)
    1. General Statutory Authority

[[Page 33842]]

    2. Substantial Inadequacy of Automatic Exemptions
    3. Substantial Inadequacy of Director's Discretion Exemptions
    4. Substantial Inadequacy of Improper Enforcement Discretion 
Provisions
    5. Substantial Inadequacy of Affirmative Defense Provisions
    B. SIP Call Process Under Section 110(k)(5)
    C. SIP Call Timing Under Section 110(k)(5)
    D. Response to Comments Concerning SIP Call Authority, Process 
and Timing
IX. What is the EPA's final action for each of the specific SIP 
provisions identified in the Petition or by the EPA?
    A. Overview of the EPA's Evaluation of Specific SIP Provisions
    B. Affected States in EPA Region I
    C. Affected State in EPA Region II
    D. Affected States in EPA Region III
    E. Affected States and Local Jurisdictions in EPA Region IV
    F. Affected States in EPA Region V
    G. Affected States in EPA Region VI
    H. Affected States in EPA Region VII
    I. Affected States in EPA Region VIII
    J. Affected States and Local Jurisdictions in EPA Region IX
    K. Affected States in EPA Region X
X. Implementation Aspects of EPA's SSM SIP Policy
    A. Recommendations Concerning Alternative Emission Limitations 
for Startup and Shutdown
    B. Recommendations for Compliance With Section 110(l) and 
Section 193 for SIP Revisions
XI. Statement of the EPA's SSM SIP Policy as of 2015
    A. Definitions
    B. Emission Limitations in SIPs Must Apply Continuously During 
All Modes of Operation, Without Automatic or Discretionary 
Exemptions or Overly Broad Enforcement Discretion Provisions That 
Would Bar Enforcement by the EPA or by Other Parties in Federal 
Court Through a Citizen Suit
    C. Emission Limitations in SIPs May Contain Components 
Applicable to Different Modes of Operation That Take Different 
Forms, and Numerical Emission Limitations May Have Differing Levels 
and Forms for Different Modes of Operation
    D. Recommendations for Development of Alternative Emission 
Limitations Applicable During Startup and Shutdown
    E. Enforcement Discretion Provisions
    F. Affirmative Defense Provisions in SIPs
    G. Anti-Backsliding Considerations
XII. Environmental Justice Consideration
XIII. References
XIV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)
    L. Congressional Review Act (CRA)
XV. Judicial Review
XVI. Statutory Authority

D. What is the meaning of key terms used in this document?

    For the purpose of this document, the following definitions apply 
unless the context indicates otherwise:

    The terms Act or CAA or the statute mean or refer to the Clean 
Air Act.
    The term affirmative defense means, in the context of an 
enforcement proceeding, a response or defense put forward by a 
defendant, regarding which the defendant has the burden of proof, 
and the merits of which are independently and objectively evaluated 
in a judicial or administrative proceeding. The term affirmative 
defense provision means more specifically a state law provision in a 
SIP that specifies particular criteria or preconditions that, if 
met, would purport to preclude a court from imposing monetary 
penalties or other forms of relief for violations of SIP 
requirements in accordance with CAA section 113 or CAA section 304.
    The term Agency means or refers to the EPA. When not 
capitalized, this term refers to an agency in general and not 
specifically to the EPA.
    The terms air agency and air agencies mean or refer to states, 
the District of Columbia, U.S. territories, local air permitting 
authorities with delegated authority from the state and tribal 
authorities with appropriate CAA jurisdiction.
    The term alternative emission limitation means, in this 
document, an emission limitation in a SIP that applies to a source 
during some but not all periods of normal operation (e.g., applies 
only during a specifically defined mode of operation such as startup 
or shutdown). An alternative emission limitation is a component of a 
continuously applicable SIP emission limitation, and it may take the 
form of a control measure such as a design, equipment, work practice 
or operational standard (whether or not numerical). This definition 
of the term is independent of the statutory use of the term 
``alternative means of emission limitation'' in sections 111(h)(3) 
and 112(h)(3), which pertain to the conditions under which the EPA 
may pursuant to sections 111 and 112 promulgate emission 
limitations, or components of emission limitations, that are not 
necessarily in numeric format.
    The term automatic exemption means a generally applicable 
provision in a SIP that would provide that if certain conditions 
existed during a period of excess emissions, then those exceedances 
would not be considered violations of the applicable emission 
limitations.
    The term director's discretion provision means, in general, a 
regulatory provision that authorizes a state regulatory official 
unilaterally to grant exemptions or variances from otherwise 
applicable emission limitations or control measures, or to excuse 
noncompliance with otherwise applicable emission limitations or 
control measures, which would be binding on the EPA and the public.
    The term EPA refers to the United States Environmental 
Protection Agency.
    The term emission limitation means, in the context of a SIP, a 
legally binding restriction on emissions from a source or source 
category, such as a numerical emission limitation, a numerical 
emission limitation with higher or lower levels applicable during 
specific modes of source operation, a specific technological control 
measure requirement, a work practice standard, or a combination of 
these things as components of a comprehensive and continuous 
emission limitation in a SIP provision. In this respect, the term 
emission limitation is defined as in section 302(k) of the CAA. By 
definition, an emission limitation can take various forms or a 
combination of forms, but in order to be permissible in a SIP it 
must be applicable to the source continuously, i.e., cannot include 
periods during which emissions from the source are legally or 
functionally exempt from regulation. Regardless of its form, a fully 
approvable SIP emission limitation must also meet all substantive 
requirements of the CAA applicable to such a SIP provision, e.g., 
the statutory requirement of section 172(c)(1) for imposition of 
reasonably available control measures and reasonably available 
control technology (RACM and RACT) on sources located in designated 
nonattainment areas.
    The term excess emissions means the emissions of air pollutants 
from a source that exceed any applicable SIP emission limitation. In 
particular, this term includes those emissions above the otherwise 
applicable SIP emission limitation that occur during startup, 
shutdown, malfunction or other modes of source operation, i.e., 
emissions that would be considered violations of the applicable 
emission limitation but for an impermissible automatic or 
discretionary exemption from such emission limitation.
    The term February 2013 proposal means the notice of proposed 
rulemaking that the EPA signed on February 12, 2013, and published 
in the Federal Register on February 22, 2013. The February 2013 
proposal comprises the EPA's initial proposed response to the 
Petition. The EPA subsequently issued the September 2014 SNPR that 
updated and revised the EPA's February 2013 proposal with respect to 
affirmative defense provisions in SIPs.
    The term malfunction means a sudden and unavoidable breakdown of 
process or control equipment.
    The term NAAQS means national ambient air quality standard or 
standards. These are the national primary and secondary ambient

[[Page 33843]]

air quality standards that the EPA establishes under CAA section 109 
for criteria pollutants for purposes of protecting public health and 
welfare.
    The term Petition refers to the petition for rulemaking titled, 
``Petition to Find Inadequate and Correct Several State 
Implementation Plans under Section 110 of the Clean Air Act Due to 
Startup, Shutdown, Malfunction, and/or Maintenance Provisions,'' 
filed by the Sierra Club with the EPA Administrator on June 30, 
2011.
    The term Petitioner refers to the Sierra Club.
    The term practically enforceable means, in the context of a SIP 
emission limitation, that the limitation is enforceable as a 
practical matter (e.g., contains appropriate averaging times, 
compliance verification procedures and recordkeeping requirements). 
The term uses ``practically'' as it means ``in a practical manner'' 
and not as it means ``almost'' or ``nearly.'' In this document, the 
EPA uses the term ``practically enforceable'' as interchangeable 
with the term ``practicably enforceable.''
    The term shutdown means, generally, the cessation of operation 
of a source for any reason. In this document, the EPA uses this term 
in the generic sense. In individual SIP provisions it may be 
appropriate to include a specifically tailored definition of this 
term to address a particular source category for a particular 
purpose.
    The term SIP means or refers to a State Implementation Plan. 
Generally, the SIP is the collection of state statutes and 
regulations approved by the EPA pursuant to CAA section 110 that 
together provide for implementation, maintenance and enforcement of 
a national ambient air quality standard (or any revision thereof) 
promulgated under section 109 for any air pollutant in each air 
quality control region (or portion thereof) within a state. In some 
parts of this document, statements about SIPs in general would also 
apply to tribal implementation plans in general even though not 
explicitly noted.
    The term SNPR means the supplemental notice of proposed 
rulemaking that the EPA signed and posted on the Agency Web site on 
September 5, 2014, and published in the Federal Register on 
September 17, 2014. Supplementing the February 2013 proposal, the 
SNPR comprises the EPA's revised proposed response to the Petition 
with respect to affirmative defense provisions in SIPs.
    The term SSM refers to startup, shutdown or malfunction at a 
source. It does not include periods of maintenance at such a source. 
An SSM event is a period of startup, shutdown or malfunction during 
which there may be exceedances of the applicable emission 
limitations and thus excess emissions.
    The term SSM Policy refers to the cumulative guidance that the 
EPA has issued as of any given date concerning its interpretation of 
CAA requirements with respect to treatment of excess emissions 
during periods of startup, shutdown and malfunction at a source in 
SIP provisions. The most comprehensive statement of the EPA's SSM 
Policy prior to this final action is embodied in a 1999 guidance 
document discussed in more detail in this final action. That 
specific guidance document is referred to as the 1999 SSM Guidance. 
The final action described in this document embodies the EPA's 
updated SSM Policy for SIP provisions relevant to excess emissions 
during SSM events. In section XI of this document, the EPA provides 
a statement of the Agency's SSM SIP Policy as of 2015.
    The term startup means, generally, the setting in operation of a 
source for any reason. In this document, the EPA uses this term in 
the generic sense. In an individual SIP provision it may be 
appropriate to include a specifically tailored definition of this 
term to address a particular source category for a particular 
purpose.

II. Overview of Final Action and Its Consequences

A. Summary

    The EPA is in this document taking final action on a petition for 
rulemaking that the Sierra Club filed with the EPA Administrator on 
June 30, 2011. The Petition concerns how air agency rules in EPA-
approved SIPs treat excess emissions during periods of SSM of 
industrial source process or emission control equipment. Many of these 
rules were added to SIPs and approved by the EPA in the years shortly 
after the 1970 amendments to the CAA, which for the first time provided 
for the system of clean air plans that were to be prepared by air 
agencies and approved by the EPA. At that time, it was widely believed 
that emission limitations set at levels representing good control of 
emissions during periods of so-called ``normal'' operation (which, 
until no later than 1982, was meant by the EPA to refer to periods of 
operation other than during startup, shutdown, maintenance or 
malfunction) could in some cases not be met with the same emission 
control strategies during periods of startup, shutdown, maintenance or 
malfunction.\2\ Accordingly, it was common for state plans to include 
provisions for special, more lenient treatment of excess emissions 
during such periods of startup, shutdown, maintenance or malfunction. 
Many of these provisions took the form of absolute or conditional 
statements that excess emissions from a source, when they occur during 
startup, shutdown, malfunction or otherwise outside of the source's so-
called ``normal'' operations, were not to be considered violations of 
the air agency rules; i.e., these emissions were considered exempt from 
legal control.
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    \2\ Since at least 1982, however, the EPA has used the term 
``normal'' in the SSM Policy in the ordinary sense of the word to 
distinguish between predictable modes of source operation such as 
startup and shutdown and genuine ``malfunctions,'' which are by 
definition supposed to be unpredictable and unforeseen events and 
which could not have been precluded by proper source design, 
maintenance and operation. See, e.g., 1982 SSM Guidance, Attachment 
at 2, in which the EPA states, ``[s]tart-up and shutdown of process 
equipment are part of the normal operation of a source and should be 
accounted for in the design and implementation of the operating 
procedure for the process and control equipment.'' The 1982 SSM 
Guidance is in the rulemaking docket at EPA-HQ-OAR-2012-0322-0005.
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    Excess emission provisions for startup, shutdown, maintenance and 
malfunctions were often included as part of the original SIPs that the 
EPA approved in 1971 and 1972. In the early 1970s, because the EPA was 
inundated with proposed SIPs and had limited experience in processing 
them, not enough attention was given to the adequacy, enforceability 
and consistency of these provisions. Consequently, many SIPs were 
approved with broad and loosely defined provisions to control excess 
emissions. Starting in 1977, however, the EPA discerned and articulated 
to air agencies that exemptions for excess emissions during such 
periods were inconsistent with certain requirements of the CAA.\3\ The 
EPA also realized that such provisions allow opportunities for sources 
to emit pollutants during such periods repeatedly and in quantities 
that could cause unacceptable air pollution in nearby communities with 
no legal pathway within the existing EPA-approved SIP for air agencies, 
the EPA, the public or the courts to require the sources to make 
reasonable efforts to reduce these emissions. The EPA has attempted to 
be more careful after 1977 not to approve SIP submissions that contain 
illegal SSM provisions and has issued several guidance memoranda to 
advise states on how to avoid impermissible provisions \4\ as they 
expand and revise their SIPs. The EPA has also found several SIPs to be 
deficient because of problematic SSM provisions and called upon the 
affected states to amend their SIPs. However, in light of the other 
high-priority work facing both air agencies and the EPA,

[[Page 33844]]

the EPA had not until the February 2013 proposal initiated a broader 
effort to require a larger number of states to remove impermissible 
provisions from their SIPs and to adopt other, approvable approaches 
for addressing excess emissions when appropriate. Public interest in 
the issue of SSM provisions in SIPs is evidently high, on the basis of 
the large number of public submissions made to the rulemaking docket in 
response to the February 2013 proposal (representing approximately 
69,000 unique commenters) and the SNPR (over 20,000 commenters, some of 
whom had also made submissions in response to the earlier proposal). 
The EPA has attempted to further count commenters according to general 
categories (state and local governments, industry commenters, public 
interest groups and individual commenters), as described in section 
V.D.1 of this document. Public interest groups, including the 
Petitioner, have sued the EPA in several state-specific cases 
concerning SIP issues, and they have been urging the EPA to give 
greater priority generally to addressing the issue of SSM provisions in 
SIPs. In one of these SIP cases, the EPA entered into a settlement 
agreement requiring it to respond to the Petition from the Sierra Club. 
A copy of the settlement agreement is provided in the docket for this 
rulemaking.\5\
---------------------------------------------------------------------------

    \3\ In 1977, the EPA took actions related to specific sources 
located in Utah and Idaho in which the EPA expressed its views 
regarding issues such as automatic exemptions from applicable 
emission limitations. See Memorandum, ``Statutory, Regulatory, and 
Policy Context for this Rulemaking,'' at n.2, February 4, 2013, in 
the rulemaking docket at EPA-HQ-OAR-2012-0322-0029.
    \4\ The term ``impermissible provision'' as used throughout this 
document is generally intended to refer to a SIP provision that the 
EPA now believes to be inconsistent with requirements of the CAA. As 
described later in this document (see section VIII.A), the EPA is 
proposing to find a SIP ``substantially inadequate'' to meet CAA 
requirements where the EPA determines that the SIP includes an 
impermissible provision.
    \5\ See Settlement Agreement executed November 30, 2011, in the 
rulemaking docket at EPA-HQ-OAR-2012-0322-0039, to address a lawsuit 
filed by Sierra Club and WildEarth Guardians in the United States 
District Court for the Northern District of California: Sierra Club 
et al. v. Jackson, No. 3:10-cv-04060-CRB (N.D. Cal.). A subsequent 
Modification to the Settlement Agreement specifies a deadline of May 
22, 2015, for signature on the final action to respond to the 
Petition.
---------------------------------------------------------------------------

    The EPA emphasizes that there are other approaches that would be 
consistent with CAA requirements for SIP provisions that states can use 
to address emissions during SSM events. While automatic exemptions and 
director's discretion exemptions from otherwise applicable emission 
limitations are not consistent with the CAA, SIPs may include criteria 
and procedures for the use of enforcement discretion by air agency 
personnel. Similarly, SIPs may, rather than exempt emissions during SSM 
events, include emission limitations that subject those emissions to 
alternative numerical limitations or other technological control 
requirements or work practice requirements during startup and shutdown 
events, so long as those components of the emission limitations meet 
applicable CAA requirements. In this action, the EPA is again 
articulating its interpretation of the CAA in the SSM Policy that 
reflects these principles and is applying this interpretation to issue 
a SIP call for specific existing provisions in the SIPs of 36 states. 
In some cases, the EPA's review involved a close reading of the 
provision in the SIP and its context to discern whether it was in fact 
an exemption, a statement regarding exercise of enforcement discretion 
by the air agency or an affirmative defense. Each state will ultimately 
decide how to address the SIP inadequacies identified by the EPA in 
this final action. The EPA acknowledges that for some states, this 
rulemaking entailed the EPA's evaluation of SIP provisions that may 
date back several decades. Aware of that fact, the EPA is committed to 
working closely with each of the affected states to develop approvable 
SIP submissions consistent with the guidance articulated in the updated 
SSM Policy in this final action. Section IX of this document presents 
the EPA's analysis of each specific SIP provision at issue in this 
action. The EPA's review also involved interpretation of several 
relevant sections of the CAA. While the EPA has already developed and 
has been implementing the SSM Policy that is based on its 
interpretation of the CAA for SIP provisions, this action provides the 
EPA an opportunity to update the SSM Policy and its basis in the CAA 
through notice and comment. To that end, section XI of this document 
contains a restatement of the EPA's SSM Policy for SIP provisions as 
revised and updated for 2015. Also, supplementary to the February 2013 
proposal, the EPA provided a background memorandum to summarize the 
legal and administrative context for this action which is available in 
the docket for this rulemaking.\6\ This final document is intended to 
clarify how states can resolve the identified deficiencies in their 
SIPs as well as to provide all air agencies guidance as they develop 
SIPs in the future.
---------------------------------------------------------------------------

    \6\ See Memorandum, ``Statutory, Regulatory, and Policy Context 
for this Rulemaking,'' February 4, 2013, in the rulemaking docket at 
EPA-HQ-OAR-2012-0322-0029. The EPA notes that with respect to the 
legal basis for affirmative defense provisions in SIPs, the Agency 
has revised its views as a result of a court decision, as explained 
in more detail in the SNPR. Thus, the portions of that background 
memorandum that concern affirmative defense provisions are no longer 
germane to this action.
---------------------------------------------------------------------------

    In summary, the EPA is agreeing with the Petitioner that many of 
the identified SIP provisions are not permissible under the CAA. 
However, in some cases the EPA is instead concluding that an identified 
SIP provision is actually consistent with CAA requirements. In 
addition, the EPA notes, this final action does not include a final 
finding of substantial inadequacy and SIP call for specific SIP 
provisions included in the February 2013 proposal for several air 
agencies, because of SIP revisions made subsequent to that proposal. 
The state of Kentucky has already submitted, and the EPA has approved, 
SIP revisions that corrected the problematic provisions applicable in 
the Jefferson County (Louisville, Kentucky) area.\7\ The state of 
Wyoming has already submitted, and the EPA has approved, SIP revisions 
that corrected the problematic provisions applicable statewide.\8\ The 
state of North Dakota has likewise already submitted, and the EPA has 
approved, SIP revisions that corrected a portion of the problematic 
provisions applicable statewide.\9\
---------------------------------------------------------------------------

    \7\ See ``Approval and Promulgation of Implementation Plans; 
Kentucky; Approval of Revisions to the Jefferson County Portion of 
the Kentucky SIP; Emissions During Startups, Shutdowns, and 
Malfunctions,'' 79 FR 33101 (June 10, 2014).
    \8\ See ``Approval and Promulgation of Implementation Plans; 
Wyoming; Revisions to the Air Quality Standards and Regulations,'' 
79 FR 62859 (October 21, 2014).
    \9\ See ``Approval and Promulgation of Implementation Plans; 
North Dakota; Revisions to the Air Pollution Control Rules,'' 79 FR 
63045 (October 22, 2014).
---------------------------------------------------------------------------

    Of the 41 states for which SIP provisions were identified by the 
Petition or identified independently by the Agency in the SNPR, the EPA 
is issuing a SIP call for 36 states. The EPA is aware of other SSM-
related SIP provisions that were not identified in the Petition but 
that may be inconsistent with the EPA's interpretation of the CAA. For 
SIP provisions that have potential defects other than an impermissible 
affirmative defense, the EPA elected to focus on the provisions 
specifically raised in the Petition. The EPA may address these other 
provisions later in a separate notice-and-comment action. States are 
encouraged to consider the updated SSM Policy laid out in this final 
action in reviewing their own SIP provisions. With respect to 
affirmative defense provisions, however, the EPA elected to identify 
some additional provisions not included in the Petition. This is 
necessary to minimize potential confusion relating to other recent 
rulemakings and court decisions that pertain generally to affirmative 
defense provisions. Therefore, in order to give updated and 
comprehensive guidance with respect to affirmative defense provisions, 
the EPA has also addressed additional affirmative defense provisions in 
17 states in the SNPR and in this final action. See section V.D.3 of 
this document for further explanation as to which SSM-related SIP 
provisions the

[[Page 33845]]

EPA reviewed for consistency with CAA requirements as part of this 
rulemaking.

B. What the Petitioner Requested

    The Petition includes three interrelated requests concerning the 
treatment in SIPs of excess emissions by sources during periods of SSM.
    First, the Petitioner argued that SIP provisions providing an 
affirmative defense for monetary penalties for excess emissions in 
judicial proceedings are contrary to the CAA. Thus, the Petitioner 
advocated that the EPA should rescind its interpretation of the CAA 
expressed in the SSM Policy that allows appropriately drawn affirmative 
defense provisions in SIPs. The Petitioner made no distinction between 
affirmative defenses for excess emissions related to malfunction and 
those related to startup or shutdown. Further, the Petitioner requested 
that the EPA issue a SIP call requiring states to eliminate all such 
affirmative defense provisions in existing SIPs. As explained later in 
this final document, the EPA has decided to fully grant this request. 
Although the EPA initially proposed to grant in part and to deny in 
part this request in the February 2013 proposal, a subsequent court 
decision concerning the legal basis for affirmative defense provisions 
under the CAA caused the Agency to reexamine this question. As a 
result, the EPA issued the SNPR to present its revised interpretation 
of the CAA with respect to this issue and to propose action on the 
Petition and on specific existing affirmative defense provisions in the 
SIPs of 17 states consistent with the reasoning of that court decision. 
In this final action, the EPA is revising its SSM Policy with respect 
to affirmative defenses for violations of SIP requirements. The EPA 
believes that SIP provisions that function to alter the jurisdiction of 
the federal courts under CAA section 113 and section 304 to determine 
liability and to impose remedies are inconsistent with fundamental 
legal requirements of the CAA, especially with respect to the 
enforcement regime explicitly created by statute.
    Second, the Petitioner argued that many existing SIPs contain 
impermissible provisions, including automatic exemptions from 
applicable emission limitations during SSM events, director's 
discretion provisions that in particular provide discretionary 
exemptions from applicable emission limitations during SSM events, 
enforcement discretion provisions that appear to bar enforcement by the 
EPA or citizens for such excess emissions and inappropriate affirmative 
defense provisions that are not consistent with the CAA or with the 
recommendations in the EPA's SSM Policy. The Petitioner identified 
specific provisions in SIPs of 39 states that it considered 
inconsistent with the CAA and explained the basis for its objections to 
the provisions. As explained later in this final document, the EPA 
agrees with the Petitioner that some of these existing SIP provisions 
are legally impermissible and thus finds such provisions 
``substantially inadequate'' \10\ to meet CAA requirements. Among the 
reasons for the EPA's action is to eliminate SIP provisions that 
interfere with enforcement in a manner prohibited by the CAA. 
Simultaneously, where the EPA agrees with the Petitioner, the EPA is 
issuing a SIP call that directs the affected state to revise its SIP 
accordingly. For the remainder of the identified provisions, however, 
the EPA disagrees with the contentions of the Petitioner and is thus 
denying the Petition with respect to those provisions and taking no 
further action. The EPA's action issuing the SIP calls on this portion 
of the Petition will assure that these SIPs comply with the fundamental 
requirements of the CAA with respect to the treatment of excess 
emissions during periods of SSM. The majority of the state-specific 
provisions affected by this SIP call action are inconsistent with the 
EPA's longstanding interpretation of the CAA through multiple 
iterations of its SSM Policy. With respect to SIP provisions that 
include an affirmative defense for violations of SIP requirements, 
however, the EPA has revised its prior interpretation of the statute 
that would have allowed such provisions under certain very limited 
conditions. Based upon an evaluation of the relevant statutory 
provisions in light of more recent court decisions, the EPA is issuing 
a SIP call to address existing affirmative defense provisions that 
would operate to alter or eliminate the jurisdiction of courts to 
assess liability and impose remedies and that would thereby contradict 
explicit provisions of the CAA relating to judicial authority.
---------------------------------------------------------------------------

    \10\ The term ``substantially inadequate'' is used in the CAA 
and is discussed in detail in section VIII.A of this document.
---------------------------------------------------------------------------

    Third, the Petitioner argued that the EPA should not rely on 
interpretive letters from states to resolve any ambiguity, or perceived 
ambiguity, in state regulatory provisions in SIP submissions. The 
Petitioner reasoned that all regulatory provisions should be clear and 
unambiguous on their face and that any reliance on interpretive letters 
to alleviate facial ambiguity in SIP provisions can lead to later 
problems with compliance and enforcement. Extrapolating from several 
instances in which the basis for the original approval of a SIP 
provision related to excess emissions during SSM events was arguably 
not clear, the Petitioner contended that the EPA should never use 
interpretive letters to resolve such ambiguities. As explained later in 
this proposal, the EPA acknowledges the concern of the Petitioner that 
provisions in SIPs should be clear and unambiguous. However, the EPA 
does not agree with the Petitioner that reliance on interpretive 
letters in a rulemaking context is never appropriate. Without the 
ability to rely on a state's interpretive letter that can in a timely 
way clarify perceived ambiguity in a provision in a SIP submission, 
however small that ambiguity may be, the EPA may have no recourse other 
than to disapprove the state's SIP submission. Thus, the EPA is denying 
the request that actions on SIP submissions never rely on interpretive 
letters. Instead, the EPA explains how proper documentation of reliance 
on interpretive letters in notice-and-comment rulemaking nevertheless 
addresses the practical concerns of the Petitioner.

C. To which air agencies does this rulemaking apply and why?

    In general, the final action may be of interest to all air agencies 
because the EPA is clarifying, restating and revising its longstanding 
SSM Policy with respect to what the CAA requires concerning SIP 
provisions relevant to excess emissions during periods of SSM. For 
example, the EPA is granting the Petitioner's request that the EPA 
rescind its prior interpretation of the CAA that, as stated in prior 
guidance in the SSM Policy, allowed appropriately drawn affirmative 
defense provisions applicable to malfunctions. The EPA is also 
reiterating, clarifying or revising its prior guidance with respect to 
several other issues related to SIP provisions applicable to SSM events 
in order to ensure that future SIP submissions, not limited to those 
that affected states make in response to this action, are fully 
consistent with the CAA. For example, the EPA is reiterating and 
clarifying its prior guidance concerning how states may elect to 
replace existing exemptions for excess emissions during SSM events with 
properly developed alternative emission limitations that apply to the 
affected sources during startup, shutdown or other normal modes of 
source operation (i.e., that apply to excess emissions during those 
normal modes of operation as opposed to during malfunctions). This 
action also

[[Page 33846]]

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

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

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

[[Page 33847]]

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

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

    In this final action, the EPA is issuing a SIP call to each of 36 
states (for provisions applicable in 45 statewide and local 
jurisdictions) with respect to these provisions. The 36 states are 
listed in table 2, ``List of All States With SIP Provisions Subject to 
SIP Call.'' The EPA emphasizes that this SIP call action pertains to 
the specific SIP provisions identified and discussed in section IX of 
this document. The actions required of individual states in response to 
this SIP call action are discussed in more detail 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.

[[Page 33848]]

 
                                      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 are receiving a finding of 
substantial inadequacy and a SIP call?

    The EPA is finalizing a finding of substantial inadequacy and 
issuing a SIP call for the states listed in table 2 (see section II.C 
of this document). The EPA is also establishing a deadline by which 
these states must make a SIP submission to rectify the specifically 
identified deficiencies in their respective SIPs. Pursuant to CAA 
section 110(k)(5), the EPA has authority to set a SIP submission 
deadline that is up to 18 months from the date of the final finding of 
substantial inadequacy. After considering comment on this issue, the 
EPA is in this final action establishing a deadline of November 22, 
2016, by which each affected state is to respond to the SIP call. The 
deadline falls 18 months from the date of signature and dissemination 
of this final finding of substantial inadequacy. Thereafter, the EPA 
will review the adequacy of that new SIP submission in accordance with 
the CAA requirements of sections 110(a), 110(k)(3), 110(l) and 193, 
including the EPA's interpretation of the CAA reflected in the SSM 
Policy as clarified and updated through this rulemaking. The EPA 
believes that states should be provided the maximum time allowable 
under CAA section 110(k)(5) in order to have sufficient time to make 
appropriate SIP revisions following their own SIP development process. 
Such a schedule will allow for the necessary SIP development process to 
correct the deficiencies yet still achieve the necessary SIP 
improvements as expeditiously as practicable consistent with the 
maximum time allowed by statute.

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

    The issuance of a SIP call requires an affected state to take 
action to revise its SIP. That action by the state may, in turn, affect 
sources as described later in this document. The states that are 
receiving a SIP call in this final action will in general have options 
as to exactly how to revise their SIPs. In response to a SIP call, a 
state retains broad discretion concerning how to revise its SIP, so 
long as that revision is consistent with the requirements of the CAA. 
Some provisions that are affected by this SIP call, for example an 
automatic exemption provision, have to be removed entirely and an 
affected source could no longer depend on the exemption to avoid all 
liability for excess emissions during SSM events. Some other 
provisions, for example a problematic enforcement discretion provision, 
could either be removed entirely from the SIP or retained if revised 
appropriately to apply only to state enforcement personnel, in 
accordance with the EPA's interpretation of the CAA as described in the 
EPA's SSM Policy. The EPA notes that if a state removes a SIP provision 
that pertains to the state's exercise of enforcement discretion, this 
removal would not affect the ability of the state to apply its 
traditional enforcement discretion in its enforcement program. It would 
merely make the exercise of such discretion case-by-case in nature, as 
is the normal form of such discretion.
    In addition, affected states may choose to consider reassessing 
particular emission limitations, for example to determine whether those 
emission limitations can be revised such that well-managed emissions 
during planned operations such as startup and shutdown would not exceed 
the revised emission limitation, while still protecting air quality and 
meeting other applicable CAA requirements. Such a revision of an 
emission limitation will need to be submitted as a SIP revision for the 
EPA's approval if the existing limitation to be changed is already 
included in the SIP or if the existing SIP relies on the particular 
existing emission limitation to meet a CAA requirement. In such 
instances, the EPA would review the SIP revision for consistency with 
all applicable CAA requirements. A state that chooses to revise 
particular emission limitations, in addition to removing or revising 
the aspect of the existing SIP provision that is inconsistent with CAA 
requirements, could include those revisions in the same SIP submission 
that addresses the SSM provisions identified in the SIP call, or it 
could submit them separately.
    The implications for a regulated source in a given state, in terms 
of

[[Page 33849]]

whether and how it would potentially have to change its equipment or 
practices in order to operate with emissions that comply with the 
revised SIP, will depend on the nature and frequency of the source's 
SSM events and how the state has chosen to revise the SIP to address 
excess emissions during SSM events. The EPA did not conduct an analysis 
that would indicate, e.g., how many owners or operators of sources in 
each affected state would likely change any procedures or processes for 
control of emissions from those sources during periods of SSM. The 
impacts of revised SIP provisions will be unique to each affected state 
and its particular mix of affected sources, and thus the EPA cannot 
predict what those impacts might be. Furthermore, the EPA does not 
believe the results of such analysis, had one been conducted, would 
significantly affect this rulemaking that pertains to whether SIP 
provisions comply with CAA requirements. The EPA recognizes that after 
all the responsive SIP revisions are in place and are being implemented 
by the states, some sources may need to take steps to control emissions 
better so as to comply with emission limitations continuously, as 
required by the CAA, or to increase durability of components and 
monitoring systems to detect and manage malfunctions promptly.
    The EPA Regional Offices will work with states to help them 
understand their options and the potential consequences for sources as 
the states prepare their SIP revisions in response to this SIP call.

F. What happens if an affected state fails to meet the SIP submission 
deadline?

    If, in the future, the EPA finds that a state that is subject to 
this SIP call action has failed to submit a complete SIP revision as 
required, or the EPA disapproves such a SIP revision, then the finding 
or disapproval would trigger an obligation for the EPA to impose a 
federal implementation plan (FIP) within 24 months after that date. 
That FIP obligation would be discharged without promulgation of a FIP 
only if the state makes and the EPA approves the called-for SIP 
submission. In addition, if a state fails to make the required SIP 
revision, or if the EPA disapproves the required SIP revision, then 
either event can also trigger mandatory 18-month and 24-month sanctions 
clocks under CAA section 179. The two sanctions that apply under CAA 
section 179(b) are the 2-to-1 emission offset requirement for all new 
and modified major sources subject to the nonattainment new source 
review (NSR) program and restrictions on highway funding. More details 
concerning the timing and process of the SIP call, and potential 
consequences of the SIP call, are provided in section VIII of this 
document.

G. What is the status of SIP provisions affected by this SIP call 
action in the interim period starting when the EPA promulgates the 
final SIP call and ending when the EPA approves the required SIP 
revision?

    When the EPA issues a final SIP call to a state, that action alone 
does not cause any automatic change in the legal status of the existing 
affected provision(s) in the SIP. During the time that the state takes 
to develop a SIP revision in response to the SIP call and the time that 
the EPA takes to evaluate and act upon the resulting SIP submission 
from the state pursuant to CAA section 110(k), the existing affected 
SIP provision(s) will remain in place. The EPA notes, however, that the 
state regulatory revisions that the state has adopted and submitted for 
SIP approval will most likely be already in effect at the state level 
during the pendency of the EPA's evaluation of and action upon the new 
SIP submission.
    The EPA recognizes that in the interim period, there may continue 
to be instances of excess emissions that adversely affect attainment 
and maintenance of the NAAQS, interfere with PSD increments, interfere 
with visibility and cause other adverse consequences as a result of the 
impermissible provisions. The EPA is particularly concerned about the 
potential for serious adverse consequences for public health in this 
interim period during which states, the EPA and sources make necessary 
adjustments to rectify deficient SIP provisions and take steps to 
improve source compliance. However, given the need to resolve these 
longstanding SIP deficiencies in a careful and comprehensive fashion, 
the EPA believes that providing sufficient time consistent with 
statutory constraints for these corrections to occur will ultimately be 
the best course to meet the ultimate goal of eliminating the 
inappropriate SIP provisions and replacing them with provisions 
consistent with CAA requirements.

III. Statutory, Regulatory and Policy Background

    The Petition raised issues related to excess emissions from sources 
during periods of SSM and the correct treatment of these excess 
emissions in SIPs. In this context, ``excess emissions'' are air 
emissions that exceed the otherwise applicable emission limitations in 
a SIP, i.e., emissions that would be violations of such emission 
limitations. The question of how to address excess emissions correctly 
during SSM events has posed a challenge since the inception of the SIP 
program in the 1970s. The primary objective of state and federal 
regulators is to ensure that sources of emissions are subject to 
appropriate emission controls as necessary in order to attain and 
maintain the NAAQS, protect PSD increments, improve visibility and meet 
other statutory requirements. Generally, this is achieved through 
enforceable emission limitations on sources that apply, as required by 
the CAA, continuously.
    Several key statutory provisions of the CAA are relevant to the 
EPA's evaluation of the Petition. These provisions relate generally to 
the basic legal requirements for the content of SIPs, the authority and 
responsibility of air agencies to develop such SIPs and the EPA's 
authority and responsibility to review and approve SIP submissions in 
the first instance, as well as the EPA's authority to require 
improvements to a previously approved SIP if the EPA later determines 
that to be necessary for a SIP to meet CAA requirements. In addition, 
the Petition raised issues that pertain to enforcement of provisions in 
a SIP. The enforcement issues relate generally to what constitutes a 
violation of an emission limitation in a SIP, who may seek to enforce 
against a source for that violation, and whether the violator should be 
subject to monetary penalties as well as other forms of judicial relief 
for that violation.
    The EPA has a longstanding interpretation of the CAA with respect 
to the treatment of excess emissions during periods of SSM in SIPs. 
This statutory interpretation has been expressed, reiterated and 
elaborated upon in a series of guidance documents issued in 1982, 1983, 
1999 and 2001. In addition, the EPA has applied this interpretation in 
individual rulemaking actions in which the EPA: (i) Approved SIP 
submissions that were consistent with the EPA's interpretation; \14\ 
(ii) disapproved SIP submissions that were not consistent with this 
interpretation; \15\ (iii) itself promulgated regulations in FIPs that 
were consistent

[[Page 33850]]

with this interpretation; \16\ or (iv) issued a SIP call requiring a 
state to revise an impermissible SIP provision.\17\
---------------------------------------------------------------------------

    \14\ See ``Approval and Promulgation of Implementation Plans; 
Texas; Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunction Activities,'' 75 FR 68989 (November 10, 2010).
    \15\ See ``Approval and Promulgation of State Implementation 
Plans; Michigan,'' 63 FR 8573 (February 20, 1998).
    \16\ See ``Federal Implementation Plan for the Billings/Laurel, 
MT [Montana], Sulfur Dioxide Area,'' 73 FR 21418 (April 21, 2008).
    \17\ See ``Finding of Substantial Inadequacy of Implementation 
Plan; Call for Utah State Implementation Plan Revision,'' 76 FR 
21639 (April 18, 2011).
---------------------------------------------------------------------------

    The EPA's SSM Policy is a policy statement and thus constitutes 
guidance. As guidance, the SSM Policy does not bind states, the EPA or 
other parties, but it does reflect the EPA's interpretation of the 
statutory requirements of the CAA. The EPA's evaluation of any SIP 
provision, whether prospectively in the case of a new provision in a 
SIP submission or retrospectively in the case of a previously approved 
SIP submission, must be conducted through a notice-and-comment 
rulemaking in which the EPA will determine whether a given SIP 
provision is consistent with the requirements of the CAA and applicable 
regulations.\18\
---------------------------------------------------------------------------

    \18\ See generally Catawba County, North Carolina v. EPA, 571 
F.3d 20, 33-35 (D.C. Cir. 2009) (upholding the EPA's process for 
developing and applying its guidance for designations).
---------------------------------------------------------------------------

    The Petition raised issues related to excess emissions from sources 
during periods of SSM, and the consequences of failing to address these 
emissions correctly in SIPs. In broad terms, the Petitioner expressed 
concerns that the exemptions for excess emissions and the other types 
of alleged deficiencies in existing SIP provisions ``undermine the 
emission limits in SIPs and threaten states' abilities to achieve and 
maintain the NAAQS, thereby threatening public health and public 
welfare, which includes agriculture, historic properties and natural 
areas.'' \19\ The Petitioner asserted that such exemptions for SSM 
events are ``loopholes'' that can allow dramatically higher amounts of 
emissions and that these emissions ``can swamp the amount of pollutants 
emitted at other times.'' \20\ In addition, the Petitioner argued that 
these automatic and discretionary exemptions, as well as other SIP 
provisions that interfere with the enforcement structure of the CAA, 
undermine the objectives of the CAA.
---------------------------------------------------------------------------

    \19\ Petition at 2.
    \20\ Petition at 12.
---------------------------------------------------------------------------

    The EPA notes that the types of SIP deficiencies identified in the 
Petition are not legal technicalities. Compliance with the applicable 
requirements is intended to achieve the air quality protection and 
improvement purposes and objectives of the CAA. The EPA believes that 
the results of automatic and discretionary exemptions in SIP 
provisions, and of other provisions that interfere with effective 
enforcement of SIPs, are real-world consequences that adversely affect 
public health. Commenters on the February 2013 proposal provided 
illustrative examples of impacts that these types of SIP provisions 
have on the communities located near sources that rely on automatic or 
discretionary exemptions for excess emissions during SSM events, rather 
than by designing, operating and maintaining their sources to meet the 
applicable emission limitations.\21\ These comments also illustrated 
the ways in which such exemptions, incorrect enforcement discretion 
provisions and affirmative defense provisions have interfered with the 
enforcement structure of the CAA by raising inappropriate impediments 
to enforcement by states, the EPA or citizens.
---------------------------------------------------------------------------

    \21\ The EPA notes that a number of commenters described the 
impacts of SIP provisions of these types. See, e.g., comments of 
Sierra Club, et al., EPA-HQ-OAR-2012-0322-0622, pp. 28-35 
(describing impacts on several specific communities); comments of 
American Bottom Conservancy, EPA-HQ-OAR-2012-0322-0579 (describing 
impacts on one specific community); and comments of Citizen for 
Envt'l Justice and Env'l Integrity Project, EPA-HQ-OAR-2012-0322-
0621, pp. 8-17 (discussing impacts of such provisions on enforcement 
more generally).
---------------------------------------------------------------------------

    The EPA's memorandum providing a detailed discussion of the 
statutory, regulatory and policy background for this action can be 
found in the docket for this rulemaking.\22\
---------------------------------------------------------------------------

    \22\ See Memorandum, ``Statutory, Regulatory, and Policy Context 
for this Rulemaking,'' February 4, 2013, in the rulemaking docket at 
EPA-HQ-OAR-2012-0322-0029.
---------------------------------------------------------------------------

IV. Final Action in Response To Request To Rescind the EPA Policy 
Interpreting the CAA To Allow Affirmative Defense Provisions

A. What the Petitioner Requested

    The Petitioner's first request was for the EPA to rescind its SSM 
Policy element interpreting the CAA to allow affirmative defense 
provisions in SIPs for excess emissions during SSM events.\23\ Related 
to this request, the Petitioner also asked the EPA: (i) To find that 
SIPs containing an affirmative defense to monetary penalties for excess 
emissions during SSM events are substantially inadequate because they 
do not comply with the CAA; and (ii) to issue a SIP call pursuant to 
CAA section 110(k)(5) to require each such state to revise its SIP.\24\ 
Alternatively, if the EPA denies these two related requests, the 
Petitioner asked the EPA: (i) To require states with SIPs that contain 
such affirmative defense provisions to revise them so that they are 
consistent with the EPA's 1999 SSM Guidance for excess emissions during 
SSM events; and (ii) to issue a SIP call pursuant to CAA section 
110(k)(5) to states with provisions inconsistent with the EPA's 
interpretation of the CAA.\25\
---------------------------------------------------------------------------

    \23\ Petition at 11.
    \24\ Id.
    \25\ Petition at 12.
---------------------------------------------------------------------------

    The Petitioner requested that the EPA rescind its SSM Policy 
element interpreting the CAA to allow SIPs to include affirmative 
defenses for violations due to excess emissions during any type of SSM 
events because the Petitioner contended there is no legal basis for the 
Agency's interpretation. Specifically, the Petitioner cited to two 
statutory grounds, CAA sections 113(b) and 113(e), related to the type 
of judicial relief available in an enforcement proceeding and to the 
factors relevant to the scope and availability of such relief, that the 
Petitioner claimed would bar the approval of any type of affirmative 
defense provision in SIPs. The Petitioner drew no distinction between 
affirmative defense provisions for malfunctions versus affirmative 
defense provisions for startup and shutdown or other normal modes of 
operation; in the Petitioner's view all are equally inconsistent with 
CAA requirements.
    In the Petitioner's view, the CAA ``unambiguously grants 
jurisdiction to the district courts to determine penalties that should 
be assessed in an enforcement action involving the violation of an 
emissions limit.'' \26\ The Petitioner first argued that in any 
judicial enforcement action in a district court, CAA section 113(b) 
provides that ``such court shall have jurisdiction to restrain such 
violation, to require compliance, to assess such penalty, . . . and to 
award any other appropriate relief.'' The Petitioner reasoned that the 
EPA's SSM Policy is therefore fundamentally inconsistent with the CAA 
because it purports to remove the discretion and authority of the 
district courts to assess monetary penalties for violations if a source 
is shielded from monetary penalties under an affirmative defense 
provision in the approved SIP.\27\ The Petitioner concluded that the 
EPA's interpretation of the CAA in the SSM Policy element allowing any 
affirmative defenses is impermissible ``because the inclusion of an 
affirmative defense provision in a SIP limits the courts' discretion--
granted by Congress--to assess penalties for Clean Air Act 
violations.'' \28\
---------------------------------------------------------------------------

    \26\ Petition at 10.
    \27\ Id.
    \28\ Id.

---------------------------------------------------------------------------

[[Page 33851]]

    Second, in reliance on CAA section 113(e)(1), the Petitioner argued 
that in a judicial enforcement action in a district court, the statute 
explicitly specifies a list of factors that the court is to consider in 
assessing penalties.\29\ The Petitioner argued that the EPA's SSM 
Policy authorizes states to create affirmative defense provisions with 
criteria for monetary penalties that are inconsistent with the factors 
that the statute specifies and that the statute explicitly directs 
courts to weigh in any judicial enforcement action. By specifying 
particular factors for courts to consider, the Petitioner reasoned, 
Congress has already definitively spoken to the question of what 
factors are germane in assessing monetary penalties under the CAA for 
violations. The Petitioner concluded that the EPA has no authority to 
allow a state to include an affirmative defense provision in a SIP with 
different criteria to be considered in awarding monetary penalties 
because ``[p]reventing the district courts from considering these 
statutory factors is not a permissible interpretation of the Clean Air 
Act.'' \30\ A more detailed explanation of the Petitioner's arguments 
appears in the 2013 February proposal.\31\
---------------------------------------------------------------------------

    \29\ Petition at 11.
    \30\ Petition at 11.
    \31\ See February 2013 proposal, 78 FR 12459 at 12468 (February 
22, 2013).
---------------------------------------------------------------------------

B. What the EPA Proposed

    In the February 2013 proposal, consistent with its interpretation 
of the Act at that time, the EPA proposed to deny in part and to grant 
in part the Petition with respect to this overarching issue. As a 
revision to the SSM Policy as embodied in the 1999 SSM Guidance, the 
EPA proposed a distinction between affirmative defenses for unplanned 
events such as malfunctions and planned events such as startup and 
shutdown. The EPA explained the basis for its initial proposed action 
in detail, including why the Agency then believed that there was a 
statutory basis for narrowly drawn affirmative defense provisions that 
met certain criteria applicable to malfunction events but no such 
statutory basis for affirmative defense provisions applicable to 
startup and shutdown events. In the February 2013 proposal, the EPA 
also proposed to deny in part and to grant in part the Petition with 
respect to specific affirmative defense provisions in the SIPs of 
various states identified in the Petition consistent with that 
interpretation. With respect to these specific existing SIP provisions, 
the EPA distinguished between those provisions that were consistent 
with the Agency's interpretation of the CAA as set forth in 1999 SSM 
Guidance and were limited to malfunction events and other affirmative 
defense provisions that were not limited to malfunctions or otherwise 
not consistent with the Agency's interpretation of the CAA and included 
one or more deficiencies.
    Subsequent to the February 2013 proposal, however, a judicial 
decision by the U.S. Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) in NRDC v. EPA concerning the legal basis for 
affirmative defense provisions in the EPA's own regulations caused the 
Agency to reconsider the legal basis for any affirmative defense 
provisions in SIPs, regardless of the type of events to which they 
apply, the criteria they may contain or the types of judicial remedies 
they purport to limit or eliminate.\32\ Thus, the EPA issued an SNPR to 
revise its proposed response to the Petition with respect to whether 
affirmative defense provisions in SIPs are consistent with fundamental 
legal requirements of the CAA.\33\ In the SNPR, the EPA also revised 
its proposed response related to each of the specific affirmative 
defense provisions identified in the Petition. Changes to the proposed 
response included revision of the basis for the proposed finding of 
substantial inadequacy for many of the provisions (to incorporate the 
EPA's revised interpretation of the CAA into that basis). Other changes 
to the proposed response included reversal of the proposed denial of 
the Petition for some provisions that the Agency previously believed to 
be consistent with CAA requirements but subsequently determined were 
not authorized by the Act under the analysis prompted by the NRDC v. 
EPA decision. In order to provide comprehensive guidance to all states 
concerning affirmative defense provisions in SIPs and to avoid 
confusion that may arise due to recent court decisions relevant to such 
provisions under the CAA, the EPA also addressed additional existing 
SIP affirmative defense provisions of which it was aware although the 
provisions were not specifically identified in the Petition. The EPA 
initially examined the specific affirmative defense provisions 
identified by the Petitioner in 14 states but subsequently broadened 
its review to include additional provisions in four states, including 
two states that were not included in the Petition. Most importantly, 
the EPA provided a detailed explanation in the SNPR as to why it now 
believes that the logic of the court in the NRDC v. EPA decision 
vacating the affirmative defense in an Agency emission limitation under 
CAA section 112 likewise extends to affirmative defense provisions in 
SIPs.
---------------------------------------------------------------------------

    \32\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
    \33\ See SNPR, 79 FR 55919 (September 17, 2014).
---------------------------------------------------------------------------

C. What Is Being Finalized in This Action

    The EPA is taking final action to grant the Petition on the request 
to rescind its SSM Policy element that interpreted the CAA to allow 
states to elect to create affirmative defense provisions in SIPs. The 
EPA is also taking final action to grant the Petition on the request to 
make a finding of substantial inadequacy and to issue SIP calls for 
specific existing SIP provisions that include an affirmative defense as 
identified in the SNPR. The specific SIP provisions at issue are 
discussed in section IX of this document. These existing affirmative 
defense provisions include some provisions that the EPA had previously 
determined were consistent with the CAA as interpreted in the 1999 SSM 
Guidance and other provisions that were not consistent even with that 
interpretation of the CAA. As explained in the SNPR, the EPA has now 
concluded that the enforcement structure of the CAA, embodied in 
section 113 and section 304, precludes any affirmative defense 
provisions that would operate to limit a court's jurisdiction or 
discretion to determine the appropriate remedy in an enforcement 
action. These provisions are not appropriate under the CAA, no matter 
what type of event they apply to, what criteria they contain or what 
forms of remedy they purport to limit or eliminate.
    The EPA is revising its interpretation of the CAA with respect to 
affirmative defenses based upon a reevaluation of the statutory 
provisions that pertain to enforcement of SIP provisions in light of 
recent court opinions. Section 113(b) provides courts with explicit 
jurisdiction to determine liability and to impose remedies of various 
kinds, including injunctive relief, compliance orders and monetary 
penalties, in judicial enforcement proceedings. This grant of 
jurisdiction comes directly from Congress, and the EPA is not 
authorized to alter or eliminate this jurisdiction under the CAA or any 
other law. With respect to monetary penalties, CAA section 113(e) 
explicitly includes the factors that courts and the EPA are required to 
consider in the event of judicial or administrative enforcement for 
violations of CAA requirements, including SIP provisions. Because 
Congress has already given federal courts the jurisdiction to determine

[[Page 33852]]

what monetary penalties are appropriate in the event of judicial 
enforcement for a violation of a SIP provision, neither the EPA nor 
states can alter or eliminate that jurisdiction by superimposing 
restrictions on that jurisdiction and discretion granted by Congress to 
the courts. Affirmative defense provisions by their nature purport to 
limit or eliminate the authority of federal courts to determine 
liability or to impose remedies through factual considerations that 
differ from, or are contrary to, the explicit grants of authority in 
section 113(b) and section 113(e). Accordingly, pursuant to section 
110(k) and section 110(l), the EPA cannot approve any such affirmative 
defense provision in a SIP. If such an affirmative defense provision is 
included in an existing SIP, the EPA has authority under section 
110(k)(5) to require a state to remove that provision.
    States have great discretion in how to devise SIP provisions, but 
they do not have discretion to create provisions that contradict 
fundamental legal requirements of the CAA. The jurisdiction of federal 
courts to determine liability and to impose statutory remedies for 
violations of SIP emission limitations is one such fundamental 
requirement. The court in the recent NRDC v. EPA decision did not 
remand the regulation to the EPA for better explanation of the legal 
basis for an affirmative defense; the court instead vacated the 
affirmative defense and indicated that there could be no valid legal 
basis for such a provision because it contradicted fundamental 
requirements of the CAA concerning the jurisdiction of courts in 
judicial enforcement of CAA requirements. A more detailed explanation 
of the EPA's basis for determining that affirmative defense provisions 
in SIPs are similarly contrary to the requirements of the CAA appears 
in the SNPR.\34\
---------------------------------------------------------------------------

    \34\ See 79 FR 55919 at 12931-34 (September 17, 2014).
---------------------------------------------------------------------------

    Couching an affirmative defense provision in terms of merely 
defining whether the emission limitation applies and thus whether there 
is a ``violation,'' as suggested by some commenters, is also 
problematic. If there is no ``violation'' when certain criteria or 
conditions for an ``affirmative defense'' are met, then there is in 
effect no emission limitation that applies when the criteria or 
conditions are met; the affirmative defense thus operates to create an 
exemption from the emission limitation. As explained in the February 
2013 proposal, the CAA requires that emission limitations must apply 
continuously and cannot contain exemptions, conditional or otherwise. 
This interpretation is consistent with the decision in Sierra Club v. 
Johnson concerning the term ``emission limitation'' in section 
302(k).\35\ Characterizing the exemptions as an ``affirmative defense'' 
runs afoul of the requirement that emission limitations must apply 
continuously.
---------------------------------------------------------------------------

    \35\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    The EPA recognizes that the original policy objectives behind 
states' affirmative defense provisions were likely well-intentioned, 
e.g., to encourage better source design, maintenance and operation 
through the incentive of being shielded from certain statutory remedies 
for violations under certain specified conditions. Nevertheless, 
creation of SIP provisions that would operate to limit or eliminate the 
jurisdiction of courts to determine liability or to impose remedies 
provided for by statute is inconsistent with the enforcement structure 
of the CAA. The EPA emphasizes that the absence of an affirmative 
defense provision in a SIP, whether as a freestanding generally 
applicable provision or as a specific component of a particular 
emission limitation, does not mean that all exceedances of SIP emission 
limitations will automatically be subject to enforcement or 
automatically be subject to imposition of particular remedies. Pursuant 
to the CAA, all parties with authority to bring an enforcement action 
to enforce SIP provisions (i.e., the state, the EPA or any parties who 
qualify under the citizen suit provision of section 304) have 
enforcement discretion that they may exercise as they deem appropriate 
in any given circumstances. For example, if the event that causes 
excess emissions is an actual malfunction that occurred despite 
reasonable care by the source operator to avoid malfunctions, then each 
of these parties may decide that no enforcement action is warranted. In 
the event that any party decides that an enforcement action is 
warranted, then it has enforcement discretion with respect to what 
remedies to seek from the court for the violation (e.g., injunctive 
relief, compliance order, monetary penalties or all of the above), as 
well as the type of injunctive relief and/or amount of monetary 
penalties sought.\36\ Further, courts have the discretion under section 
113 to decline to impose penalties or injunctive relief in appropriate 
cases as explained below.
---------------------------------------------------------------------------

    \36\ The EPA notes that only the state and the Agency have 
authority to seek criminal penalties for knowing and intentional 
violation of CAA requirements. The EPA has this explicit authority 
under section 113(c).
---------------------------------------------------------------------------

    Similarly, the absence of an affirmative defense provision in a SIP 
does not alter the legal rights of sources under the CAA. In the event 
of an enforcement action for an exceedance of a SIP emission limit, a 
source can elect to assert any common law or statutory defenses that it 
determines is supported, based upon the facts and circumstances 
surrounding the alleged violation. Under section 113(b), courts have 
explicit authority to impose injunctive relief, issue compliance 
orders, assess monetary penalties or fees and impose any other 
appropriate relief. Under section 113(e), courts are required to 
consider the enumerated statutory factors when assessing monetary 
penalties, including ``such other factors as justice may require.'' For 
example, if the exceedance of the SIP emission limitation occurs due to 
a malfunction, that exceedance is a violation of the applicable 
emission limitation, but the source retains the ability to defend 
itself in an enforcement action and to oppose the imposition of 
particular remedies or to seek the reduction or elimination of monetary 
penalties, based on the specific facts and circumstances of the event. 
Thus, elimination of a SIP affirmative defense provision that purported 
to take away the statutory jurisdiction of the court to exercise its 
authority to impose remedies does not disarm sources in potential 
enforcement actions. Sources retain all of the equitable arguments they 
could previously have made under an affirmative defense provision; they 
must simply make such arguments to the reviewing court as envisioned by 
Congress in section 113(b) and section 113(e). Congress vested the 
courts with the authority to judge how best to weigh the evidence in an 
enforcement action and determine appropriate remedies.
    Removal of such impermissible SIP affirmative defense provisions is 
necessary to preserve the enforcement structure of the CAA, to preserve 
the jurisdiction of courts to adjudicate questions of liability and 
remedies in judicial enforcement actions and to preserve the potential 
for enforcement by states, the EPA and other parties under the citizen 
suit provision as an effective deterrent to violations. In turn, this 
deterrent encourages sources to be properly designed, maintained and 
operated and, in the event of violation of SIP emission limitations, to 
take appropriate action to mitigate the impacts of the violation. In 
this way, as intended by the existing enforcement structure of the CAA, 
sources can mitigate the potential for enforcement actions against them 
and the remedies

[[Page 33853]]

that courts may impose upon them in such enforcement actions, based 
upon the facts and circumstances of the event.

D. Response to Comments Concerning Affirmative Defense Provisions in 
SIPs

    The EPA received numerous comments concerning the portion of the 
Agency's proposed response to the Petition in the February 2013 
proposal that addressed the question of whether affirmative defense 
provisions are consistent with CAA requirements for SIPs. As explained 
in the SNPR, those particular comments submitted on the original 
February 2013 proposal are no longer germane, given that the EPA has 
substantially revised its initial proposed action on the Petition and 
its basis, both with respect to the overarching issue of whether such 
provisions are valid in SIPs under the CAA and with respect to specific 
affirmative defense provisions in existing SIPs of particular states. 
Accordingly, as the EPA indicated in the SNPR, it considers those 
particular comments on the February 2013 proposal no longer relevant 
and has determined that it is not necessary to respond to them. 
Concerning affirmative defense provisions, the appropriate focus of 
this rulemaking is on the comments that addressed the EPA's revised 
proposal in the SNPR.
    With respect to the revised proposal concerning affirmative defense 
provisions in the SNPR, the EPA received numerous comments, some 
supportive and some critical of the Agency's proposed action on the 
Petition as revised in the SNPR. Many of these comments raised 
conceptual issues and arguments concerning the EPA's revised 
interpretation of the CAA with respect to affirmative defense 
provisions in SIPs in light of the NRDC v. EPA decision and concerning 
the EPA's application of that interpretation to specific affirmative 
defense provisions discussed in the SNPR. For clarity and ease of 
discussion, the EPA is responding to these overarching comments, 
grouped by issue, in this section of this document.
    1. Comments that the EPA is misapplying the decision of the D.C. 
Circuit in NRDC v. EPA to SIP provisions because the decision only 
applies to the Agency's own regulations pursuant to CAA section 112.
    Comment: Many commenters stated that the EPA's reliance on the D.C. 
Circuit's decision in NRDC v. EPA is misplaced in the SNPR because the 
opinion is limited to disapproval of a Maximum Achievable Control 
Technology (MACT) standard's affirmative defense for unavoidable 
malfunctions. The commenters noted that the NRDC v. EPA decision did 
not address the issue of affirmative defense provisions in SIPs. The 
commenters argued that the D.C. Circuit's opinion only stands for the 
narrow proposition that the EPA may not include an affirmative defense 
to civil penalties in a NESHAP \37\ under CAA section 112.
---------------------------------------------------------------------------

    \37\ The NESHAPs are found in 40 CFR part 61 and 40 CFR part 63. 
The NESHAPs promulgated after the 1990 CAA Amendments are found in 
40 CFR part 63. These standards require application of technology-
based emissions standards referred to as Maximum Achievable Control 
Technology (MACT). Consequently, these post-1990 NESHAPs are also 
referred to as MACT standards.
---------------------------------------------------------------------------

    One commenter noted that the EPA, in the SNPR, stated that the NRDC 
v. EPA decision did not turn on any factors specific to CAA section 112 
as support for the EPA applying the decision to SIPs. However, the 
commenter argued that this fact is not probative because neither party 
raised any argument specific to CAA section 112 and it is reasonable 
for a court to limit its analysis to the arguments presented before it.
    One commenter also noted that the EPA is not bound to apply D.C. 
Circuit law to actions reviewable in other circuits.
    Response: As explained in the SNPR, the EPA believes the reasoning 
of the court in the NRDC v. EPA decision indicates that states, like 
the EPA, have no authority in SIP provisions to alter the jurisdiction 
of federal courts to assess penalties for violations of CAA 
requirements through affirmative defense provisions.\38\ If states lack 
authority under the CAA to alter the jurisdiction of the federal courts 
through affirmative defense provisions in SIPs, then the EPA lacks 
authority to approve any such provision in a SIP.
---------------------------------------------------------------------------

    \38\ See 79 FR 55929-30; 55931-34.
---------------------------------------------------------------------------

    The EPA agrees with the commenters' statement that the NRDC v. EPA 
decision pertained to a challenge to the EPA's NESHAP regulations 
issued pursuant to CAA section 112 to regulate hazardous air pollutants 
(HAPs) from sources that manufacture Portland cement. However, the EPA 
disagrees with the commenters' contention that, because the NRDC v. EPA 
decision was based on a NESHAP, it is somehow inappropriate for the EPA 
to rely on the reasoning of the D.C. Circuit's decision as a basis for 
this action.
    As acknowledged by a commenter, the EPA explained in the SNPR that 
the NRDC v. EPA decision did not turn on the specific provisions of CAA 
section 112.\39\ However, the commenter missed the importance of this 
point. Although the NRDC v. EPA decision analyzed the legal validity of 
an affirmative defense provision created by the EPA in conjunction with 
a specific NESHAP, the court based its decision upon the provisions of 
sections 113 and 304. Sections 113 and 304 pertain to enforcement of 
the CAA requirements more broadly, including to enforcement of SIP 
requirements. The court addressed section 112 and not sections germane 
specifically to SIPs, as only that section was before it. The EPA has 
applied the NRDC court's analysis to sections 113 and 304 with respect 
to SIPs and has concluded that the NRDC court's analysis is the better 
reading of the statutory provisions.
---------------------------------------------------------------------------

    \39\ SNPR, 79 FR 55919 at 55932.
---------------------------------------------------------------------------

    The affirmative defense provision in the Portland Cement NESHAP 
required the source to prove, by a preponderance of the evidence in an 
enforcement proceeding, that the source met specific criteria 
concerning the nature of the event. These specific criteria required to 
establish the affirmative defense in the Portland Cement NESHAP are 
functionally the same as the criteria that the EPA previously 
recommended to states for SIP provisions in the 1999 SSM Guidance and 
that the EPA repeated in the February 2013 proposal document. 
Accordingly, the EPA believes that the opinion of the court in NRDC v. 
EPA has significant impacts on the Agency's SSM Policy with respect to 
affirmative defense provisions. The reasoning by the NRDC court, as 
logically extended to SIP provisions, indicates that neither states nor 
the EPA have authority to alter either the rights of other parties to 
seek relief or the jurisdiction of federal courts to impose relief for 
violations of CAA requirements in SIPs. The EPA believes that the 
court's decision in NRDC v. EPA compelled the Agency to reevaluate its 
interpretation of the CAA as described in the SNPR.
    The EPA also disagrees with commenters who suggested that a 
decision of the D.C. Circuit should have no bearing on actions that 
affect states in other circuit courts. The CAA vests authority with the 
D.C. Circuit to review nationally applicable regulations and any action 
of nationwide scope or effect. Accordingly, any decision of the D.C. 
Circuit in conducting such review is binding nationwide with respect to 
the action under review, and the D.C. Circuit's reasoning is also 
binding with respect to review of future EPA actions raising the same 
issues that will be subject to review within that Circuit. Given that 
the EPA has determined that this action has nationwide scope and 
effect, it is subject to exclusive review in the D.C. Circuit, so the 
EPA believes it is appropriate to apply the reasoning

[[Page 33854]]

of the NRDC court, which interprets CAA sections 113 and 304, to 
determine the legality of affirmative defense provisions in this 
national action.\40\
---------------------------------------------------------------------------

    \40\ CAA section 307(b)(1).
---------------------------------------------------------------------------

    2. Comments that the EPA is misapplying the decision of the D.C. 
Circuit in NRDC v. EPA to SIP provisions because the court did not 
address the legality of affirmative defense provisions in SIPs.
    Comment: Many commenters alleged that the EPA inappropriately 
relied on the D.C. Circuit's decision in NRDC v. EPA in the SNPR 
because the court specifically stated that its decision did not address 
whether affirmative defense provisions in SIPs were appropriate. The 
commenters pointed to the second footnote in the decision, in which the 
court explicitly stated: ``We do not here confront the question whether 
an affirmative defense may be appropriate in a State Implementation 
Plan.'' \41\ Accordingly, the commenters argued that the NRDC v. EPA 
decision is ``non-binding'' with respect to SIP provisions.
---------------------------------------------------------------------------

    \41\ 749 F.3d 1055, 1064, n.2.
---------------------------------------------------------------------------

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

[[Page 33855]]

or conditional based upon the criteria of an affirmative defense, are 
inconsistent with the requirement for continuous controls on sources.
---------------------------------------------------------------------------

    \42\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Finally, the EPA believes that the commenters' premise that an 
affirmative defense provision merely defines what a violation is also 
runs afoul of other fundamental requirements for SIP provisions. To the 
extent any such provision would allow state personnel to decide, 
unilaterally, whether excess emissions during an SSM event constitute a 
violation (e.g., through application of an ``affirmative defense''), 
this would interfere with the ability of the EPA or other parties to 
enforce for violations of SIP requirements. The EPA interprets the CAA 
to prohibit SIP provisions that impose the enforcement discretion 
decisions of a state on other parties. This includes provisions that 
are structured or styled as an affirmative defense but in effect allow 
ad hoc conditional exemptions from emission limitations and preclude 
enforcement for excess emission during SSM events.
    5. Comments that the NRDC v. EPA decision, which concerned an 
emission limitation under section 112, does not apply in the context of 
section 110, because section 110 affords states flexibility in how to 
develop emission limitations in SIP provisions.
    Comment: Commenters argued that the EPA's extension of the logic of 
the NRDC v. EPA decision to affirmative defenses in SIP provisions is 
incorrect because the EPA's NESHAP standards are governed by section 
112, whereas SIP provisions are governed by section 110. Under the 
latter, commenters asserted, states are afforded wide discretion in how 
to develop emission limitations.\43\ The commenters stated that section 
110 governs the development of state SIPs to satisfy the NAAQS, which 
may address many different types of sources, major and minor, 
industrial and non-industrial, small and large, and old and new. The 
commenters alleged that states have independent authority to include 
affirmative defenses in SIP provisions, so long as the provisions are 
otherwise approvable, because the state has met its section 110 
planning responsibilities and the SIP is enforceable.
---------------------------------------------------------------------------

    \43\ See, e.g., Train v. NRDC, 421 U.S. 60, 79 (1975).
---------------------------------------------------------------------------

    Response: The EPA agrees with the commenters that section 110 
governs the development of state SIPs and that states are accorded 
great discretion in determining how to meet CAA requirements in SIPs. 
However, as explained in the February 2013 proposal, the SNPR and 
sections IV.D.13 and V.D.2 of this document, states are obligated to 
develop SIP provisions that meet fundamental CAA requirements. The EPA 
has the responsibility to review SIP provisions developed by states to 
ensure that they in fact meet fundamental CAA requirements. As 
explained in the SNPR and this document, the EPA no longer believes 
that affirmative defense provisions meet CAA requirements. Based on the 
logic of the court in the NRDC v. EPA decision, the better reading of 
the statute is that such provisions have the effect of limiting or 
eliminating the statutory jurisdiction of the courts to determine 
liability or impose remedies.
    The EPA also disagrees with the commenters' arguments that 
``emission limitations'' under section 112 and section 110 are not 
comparable with respect to meeting fundamental CAA requirements. As an 
initial matter, both section 112 MACT standards and section 110 SIP 
emission limitations can be composed of various elements that include, 
among other things, numerical emission limitations, work practice 
standards and monitoring and recordkeeping requirements. However, 
whether there are other components that are part of the emission 
limitation to make it apply continuously is not relevant for purposes 
of determining whether an affirmative defense provision that provides 
relief from penalties for a violation of either a MACT standard under 
section 112 or a SIP provision under section 110 is consistent with the 
CAA.
    As explained in the SNPR, the EPA has revised its interpretation of 
the CAA with respect to affirmative defense provisions in SIPs, based 
upon the logic of the court in the NRDC v. EPA decision. Section 304(a) 
sets forth the basis for a civil enforcement action and section 
113(a)(1) does the same for administrative or judicial enforcement 
actions brought by the EPA. Sections 113(b) and 304(a) provide the 
federal district courts with jurisdiction to hear civil enforcement 
cases. Furthermore, section 113(e) confers jurisdiction on the district 
court in a civil enforcement case to determine the amount of penalty to 
be assessed where a violation has been established.
    6. Comments that the NRDC v. EPA decision does not pertain to the 
appropriateness of affirmative defense provisions in the context of 
state administrative or civil enforcement.
    Comment: Some commenters noted that the NRDC court only reviewed 
whether affirmative defense provisions could be used to limit CAA 
citizen suit remedies in judicial enforcement actions. The commenters 
alleged that the use of an affirmative defense in a citizen suit under 
federal regulations does not dictate the appropriateness of similar 
provisions in the context of state administrative or civil actions. 
According to the commenters, a SIP represents an air quality management 
system and the state administrative process is distinct from federal 
citizen suits. Similarly, the commenters believed that SIP emission 
limitations are enforceable via state regulation penalty provisions 
that are separate from the CAA civil penalty provisions. Because the 
NRDC court spoke only to the appropriateness of affirmative defense 
provisions in the context of federal citizen suits, the commenters 
asserted, the decision is inapplicable in the EPA's SIP call action.
    Response: The EPA agrees that the court in the NRDC v. EPA decision 
did not speak directly to the issue of whether states can establish 
affirmative defenses to be used by sources exclusively in state 
administrative enforcement actions or in judicial enforcement in state 
courts. The reasoning of the NRDC court indicates only that such 
provisions would be inconsistent with the CAA in the context of 
judicial enforcement of SIP requirements in federal court. Indeed, the 
NRDC court suggested that if the EPA elected to consider factors 
comparable to the affirmative defense criteria in its own 
administrative enforcement proceedings, it may be able to do so. The 
implication of the commenters, however, is that the EPA should 
interpret the CAA to allow affirmative defenses in SIP provisions, so 
long as it is unequivocally clear that sources cannot assert the 
affirmative defenses in federal court enforcement actions and cannot 
assert the affirmative defenses in enforcement actions brought by any 
party other than the state.
    The EPA of course agrees that states can exercise their own 
enforcement discretion and elect not to bring an enforcement action or 
seek certain remedies, using criteria analogous to an affirmative 
defense. It does not follow, however, that states can impose this 
enforcement discretion on other parties by adopting SIP provisions that 
would apply in federal judicial enforcement, or in enforcement brought 
by the EPA or other parties. To the extent that the state developed an 
``enforcement discretion'' type provision that applied only in its own 
administrative enforcement actions or only with respect to enforcement 
actions brought by the state in state courts, such a provision may be 
appropriate. This authority is not unlimited because the state could 
not create affirmative defense provision that in effect undermines its 
legal authority

[[Page 33856]]

to enforce SIP requirements. Section 110(a)(2)(C) requires states to 
have a program that provides for enforcement of the state's SIP, and 
enforcement discretion provisions that unreasonably limit the state's 
own authority to enforce the requirements of the SIP would be 
inconsistent with section 110(a)(2)(C). The EPA's obligations with 
respect to SIPs include determining whether states have adequate 
enforcement authority.
    7. Comments that the EPA's proposal is inappropriate because it 
runs counter to previous court decisions, including the decision of the 
U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) in Luminant 
Generation v. EPA.
    Comment: Many commenters on the SNPR argued that the decision of 
the Fifth Circuit in Luminant Generation v. EPA precludes the EPA's 
proposed action concerning affirmative defenses in SIP provisions, in 
general and with respect to the provisions in the Texas SIP in 
particular. The commenters noted that the court upheld the EPA's 
approval of an affirmative defense provision for unavoidable excess 
emissions during unplanned SSM events in the Texas SIP.\44\ The 
commenters argued that the Fifth Circuit ruled that in approving the 
Texas SIP affirmative defense provision, the EPA ``acted neither 
contrary to law nor in excess of its statutory authority.'' \45\ 
According to the commenters, the court specifically considered and 
rejected arguments by litigants concerning sections 113 and 304. Some 
commenters argued that the court also considered and ``decisively 
rejected'' the legal arguments articulated by the EPA in the SNPR. The 
commenters alleged that the Luminant Generation v. EPA decision 
demonstrates that affirmative defenses for malfunctions are permissible 
in SIP provisions. The commenters contended that, because the Fifth 
Circuit in Luminant Generation v. EPA specifically considered whether 
an affirmative defense provision applicable to malfunctions included in 
a SIP violates the CAA, unlike the D.C. Circuit in NRDC v. EPA, the EPA 
should follow the Luminant Generation v. EPA decision rather than the 
D.C. Circuit decision in NRDC v. EPA.
---------------------------------------------------------------------------

    \44\ 714 F.3d 841 (5th Cir. 2013).
    \45\ Id. at 853. The EPA notes that the Fifth Circuit also 
upheld the Agency's disapproval of the affirmative defense 
provisions that the state sought to create for ``planned'' events.
---------------------------------------------------------------------------

    Some commenters also pointed out that the D.C. Circuit, in the 
recent NRDC v. EPA decision, mentioned and cited the Luminant 
Generation v. EPA opinion and did not expressly disagree with the Fifth 
Circuit's holding. One commenter noted that if the NRDC court believed 
that the issue it was deciding was the same as the issue decided in 
Luminant Generation v. EPA, the D.C. Circuit would have explicitly 
stated that it was declining to follow the Fifth Circuit on the issue 
instead of acknowledging that the issue upon which the Fifth Circuit 
ruled was not before the D.C. Circuit.
    Several commenters also argued that, because the Fifth Circuit 
previously determined in Luminant Generation v. EPA that the Texas SIP 
affirmative defense provision at issue in this SIP call action is 
consistent with CAA sections 113 and 304, the EPA does not have any 
legal authority under the CAA to finalize the action proposed in SNPR. 
Some commenters further stated that the EPA lacks authority to disagree 
with the Fifth Circuit's determination of the law as applied to a state 
within the Fifth Circuit's jurisdiction. These commenters believed that 
if the EPA were to finalize the action discussed in the SNPR with 
respect to the affirmative defense for malfunctions in the Texas SIP, 
this action would violate the mandate rule. Some commenters also 
alleged that courts outside the Fifth Circuit, including the D.C. 
Circuit, will apply principles of claim preclusion, or res judicata, to 
give effect to the Fifth Circuit's prior adjudication on the legal 
basis for the affirmative defense in the Texas SIP. One commenter 
claimed that the EPA's ``failure'' to address how the holdings in 
Luminant Generation v. EPA will no longer apply and how the EPA is 
exempt from the court's mandate render the theories presented in the 
SNPR unsupported as a basis for the SIP call action.
    Some commenters alleged that the EPA is bound by its own prior 
representations before the Fifth Circuit, in which it asserted and 
defended its approval of the affirmative defense provision for 
malfunctions in the Texas SIP, under the doctrine of judicial 
estoppel.\46\ Similarly, the commenters alleged that under the doctrine 
of issue preclusion, or collateral estoppel, the EPA is precluded from 
re-litigating the issues previously considered and determined by the 
Fifth Circuit, regardless of where any subsequent challenge to this 
final action is brought.
---------------------------------------------------------------------------

    \46\ See, e.g., New Hampshire v. Maine, 532 U.S. 742, 749 
(2001).
---------------------------------------------------------------------------

    Some commenters also cited to other circuit court decisions that 
have upheld the EPA's approvals of affirmative defense provisions for 
malfunctions.\47\ The commenters alleged that other than calling the 
NRDC v. EPA decision a newer decision, the EPA did not explain its 
justification for relying on the NRDC v. EPA opinion instead of 
following the three circuit court decisions that are directly on point.
---------------------------------------------------------------------------

    \47\ See Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 
(9th Cir. 2012); Arizona Public Service Co. v. EPA, 562 F.3d 1116 
(10th Cir. 2009).
---------------------------------------------------------------------------

    Response: The EPA disagrees with the commenters' arguments 
concerning the application of the court's decision in Luminant 
Generation v. EPA to this SIP call action. As explained in the SNPR, 
the EPA acknowledges that it has previously approved affirmative 
defenses in SIP provisions or, when appropriate, promulgated 
affirmative defenses in FIPs. The EPA also acknowledged that its 
approval of an affirmative defense provision applicable to ``unplanned 
events'' (i.e., malfunctions) in a Texas SIP submission was upheld in 
2012 by the U.S. Court of Appeals for the Fifth Circuit. In that 
litigation, the EPA argued that sections 113 and 304 do not preclude 
appropriately drawn affirmative defense provisions for malfunctions in 
SIPs. Importantly, in upholding the EPA's approval of the affirmative 
defense, the Fifth Circuit determined that Chevron step 1 was not 
applicable to this case and ``turn[ed] to step two of Chevron'' \48\ in 
holding that the Agency's interpretation of the CAA at that time was a 
``permissible interpretation of section [113], warranting deference.'' 
\49\ The Fifth Circuit did not determine that the EPA's interpretation 
at the time of the Luminant Generation v. EPA decision was the only or 
even the best permissible interpretation. It is clearly within the 
EPA's legal authority to now revise its interpretation to a different, 
but still permissible, interpretation of the statute.\50\ The EPA has 
explained at length in the SNPR, and elsewhere in this final 
rulemaking, its reasons for changing its previous interpretation of

[[Page 33857]]

the CAA to permit narrowly drawn affirmative defenses applicable only 
to penalties and has explained why it now believes that the reasoning 
of the court in the NRDC v. EPA decision is the better reading of the 
CAA.
---------------------------------------------------------------------------

    \48\ 714 F.3d at 852.
    \49\ Id. at 853.
    \50\ See, e.g., Nat'l Cable & Telecomms. Ass'n v. Brand X 
Internet Servs., 545 U.S. 967 (2005) and FCC v. Fox Television 
Stations, Inc., 556 U.S. 502 (2009). The Agency also notes that 
commenters' position, that the EPA cannot now change its 
interpretation of the CAA, is at odds with the SIP call provision 
established by Congress in section 110(k)(5). That provision 
provides the EPA with authority to issue a SIP call ``whenever'' it 
determines that an existing SIP is substantially inadequate to meet 
CAA requirements. In other words, section 110(k)(5) expressly 
envisions cases where the EPA has previously approved a SIP 
provision as meeting CAA requirements, and one that the EPA may have 
even defended in court, but later determines that the provision no 
longer meets CAA requirements, and section 110(k)(5) gives the EPA 
authority to issue a SIP call in these situations.
---------------------------------------------------------------------------

    Some commenters allege that the Fifth Circuit considered and 
rejected the legal arguments articulated by the EPA in the SNPR to 
support the Agency's new interpretation that affirmative defenses in 
SIP provisions are inconsistent with the Act. The EPA disagrees with 
commenters' assertions. As explained above, in the Luminant Generation 
v. EPA decision the Fifth Circuit analyzed the EPA's former 
interpretation of the CAA under step 2 of Chevron and found that the 
Agency's position was reasonable. The Fifth Circuit held that the CAA 
did not dictate the outcome put forth by environmental petitioners in 
the Luminant Generation v. EPA case; the court did not hold that the 
Agency could not reasonably interpret the CAA provisions at issue to 
come to the new position articulated in the SNPR and other sections of 
this document. In fact, the Fifth Circuit upheld the EPA's reading of 
the statute to preclude affirmative defense provisions for planned 
events in the same decision as a reasonable interpretation of the CAA.
    In the SNPR, the EPA also addressed the discussion in the NRDC v. 
EPA decision that referred to the earlier Luminant Generation v. EPA 
decision and explained its view that the court in NRDC v. EPA did not 
suggest that its interpretation of the CAA would not apply more broadly 
to SIP provisions. Rather, the court simply declined to address that 
issue. As to commenters' allegation that the EPA should follow the 
Luminant court's reasoning because that court addressed the specific 
issue of affirmative defenses in SIP provisions, the EPA has explained 
in detail in the SNPR and section IV.D.1 of this document why it now 
believes that the NRDC court's reasoning is applicable here and why it 
believes this is the better interpretation of sections 113 and 304.
    The EPA acknowledges that other circuit courts have also upheld 
affirmative defense provisions promulgated by the Agency in FIPs.\51\ 
Those decisions were also based upon an interpretation of the CAA that 
the Agency no longer holds. The EPA further notes that the affirmative 
defense provisions at issue in the other court decisions cited by the 
commenters are not at issue in this action. However, the EPA may elect 
to address these provisions in a separate rulemaking.
---------------------------------------------------------------------------

    \51\ See Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 
(9th Cir. 2012); Arizona Public Service Co. v. EPA, 562 F.3d 1116 
(10th Cir. 2009).
---------------------------------------------------------------------------

    The EPA also disagrees with commenters' allegations that this final 
SIP call action violates the mandate rule. The mandate rule generally 
governs how a lower court handles a higher court's decision on remand. 
The Agency believes that the mandate rule is inapplicable here. 
Similarly, the Agency believes that the principles of res judicata, 
judicial estoppel and collateral estoppel (issue preclusion) raised by 
commenters are all inapplicable in this situation. For reasons the EPA 
has fully explained in this rulemaking, the Agency is adopting a 
revised interpretation of the CAA. This necessarily changes the issues 
or claims that may be raised in any future litigation concerning the 
Agency's action here or subsequent Agency actions taken pursuant to 
this changed interpretation. As noted previously, the Agency's ability 
to change its interpretation of the statute is well established, even 
if courts have previously upheld the Agency's former interpretation as 
reasonable under step 2 of the Chevron analysis.
    8. Comments that affirmative defense provisions are needed or 
appropriate because sources cannot control malfunctions or the excess 
emissions that occur during them.
    Comment: Several commenters claimed that by requiring states to 
remove affirmative defense provisions, the EPA will create a situation 
where sources have no potential relief from liability for exceedances 
resulting from excess emissions during malfunctions. The commenters 
argued that this will effectively expose sources to penalties for 
emissions that are not within the sources' control. The commenters 
alleged that the EPA's proposal is unreasonable because it fails to 
consider the infeasibility of controlling emissions during malfunction 
periods. The commenters believe that because malfunction events are 
uncontrollable by definition, removing affirmative defense provisions 
applicable to malfunctions will not reduce emissions but instead will 
only expose facilities to potential enforcement for uncontrollable 
exceedances.
    Response: The EPA disagrees that without affirmative defense 
provisions, sources will have no ``relief'' from liability for 
violations during actual malfunctions. To the extent that sources have 
an actual malfunction, sources retain the ability to raise this fact in 
the event of an enforcement action related to the malfunction. Congress 
has already provided courts with explicit jurisdiction and authority to 
determined liability and to impose appropriate remedies, based on the 
facts and circumstances surrounding the violation. To the extent that 
there are extenuating circumstances that justify not holding a source 
responsible for a violation or not imposing particular remedies as a 
result of a violation, sources retain the ability to raise these facts 
to the court. In addition, the absence of an affirmative defense 
provision in the SIP does not impede a violating source from taking 
appropriate actions to minimize emissions during a malfunction, so as 
to mitigate the potential remedies that a court may impose as a result 
of the violation.
    Furthermore, the EPA disagrees with the commenters' premise that 
states have authority to create affirmative defense provisions in SIPs 
because some sources may otherwise be subject to enforcement actions 
for emissions during malfunctions. As explained in the SNPR in detail, 
the EPA has concluded that there is no legal basis for affirmative 
defenses in SIP provisions, including affirmative defenses applicable 
to malfunction events. Because such affirmative defense provisions 
purport to alter or eliminate the statutory jurisdiction of courts to 
determine liability and to assess appropriate remedies for violations 
of SIP requirements, these provisions are not permissible.
    9. Comments that there will not be any reduction in overall 
emissions from the EPA's SIP call action because states will need to 
revise emission limitations to allow more emissions if affirmative 
defense provisions are removed from the SIPs.
    Comment: Commenters on the SNPR questioned whether the elimination 
of affirmative defenses in SIP provisions would result in any 
reductions of emissions from sources. Several commenters asserted that 
affirmative defense provisions allow states to lower emission 
limitations overall. Thus, the commenters claimed that elimination of 
the affirmative defense provisions would obligate states to raise 
affected emission limitations so that sources could comply with them 
continuously. Another commenter criticized the EPA's approach as 
requiring each state to reframe the existing episodic emissions 
provisions of its SIP as alternative emission limitations rather than 
as more limited and conditional affirmative defenses. This commenter 
asserted that structuring the provisions as an affirmative defense 
allows a state to impose more stringent numerical limitations without 
penalizing sources for unavoidable emissions when those

[[Page 33858]]

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

[[Page 33859]]

they revise their SIPs in this context as in all other contexts.
---------------------------------------------------------------------------

    \52\ The EPA notes that the actual affirmative defense 
provisions at issue in this action are very dissimilar; some are 
based on the EPA's interpretation of the CAA in the 1999 SSM 
Guidance, but the majority of the provisions are relatively unique 
from state to state. Accordingly, the EPA disagrees with the 
commenters' basic premise that the affirmative defense provisions 
are consistent from state to state.
---------------------------------------------------------------------------

    As to the concern that different courts might evaluate liability 
for violations during SSM events differently in the absence of 
affirmative defense provisions, the EPA notes that this is not the 
relevant question. The potential for inconsistent treatment by the 
courts is not a basis for allowing states to retain SIP provisions that 
are inconsistent with the legal requirements of the CAA. In any event, 
the EPA disagrees that elimination of affirmative defenses in SIP 
provisions make it more likely that there would be ``inconsistent 
enforcement'' because of a lack of a ``regulatory framework.'' The 
enforcement structure of the CAA embodied in section 113 and section 
304 already provides a structure for enforcement of CAA requirements in 
federal courts. For example, the CAA already provides uniform criteria 
for courts to apply, based upon the facts and circumstances of 
individual enforcement actions. Similar to an affirmative defense 
provision, section 113(e) already enumerates the factors that courts 
are required to consider in determining appropriate penalties for 
violations and thus there is a consistent statutory framework. In 
essence the commenters object to the fact that in any judicial 
enforcement case, the court will determine liability and remedies based 
on the facts and circumstances of the case. However, this is an 
inherent feature of the enforcement structure of the CAA, regardless of 
whether there is an affirmative defense provision at issue.
    11. Comments that the EPA should have acted in a single, 
comprehensive rulemaking rather than issuing the supplemental notice of 
proposed rulemaking.
    Comment: Commenters asserted that the EPA's issuance of two 
separate proposals instead of one proposal has prevented states and 
industry from knowing the entire proposed regulatory action. The 
commenters claimed that if the EPA is going to issue a SIP call to 
states concerning the treatment of emissions during SSM events, then it 
should do so in a single comprehensive rulemaking. The commenters 
argued this is necessary because states consider different options when 
revising SIP provisions and that thereafter states will have to work 
with affected sources to revise permits.
    Response: The EPA disagrees with the argument that states, 
industry, individuals and other interested parties have not had an 
opportunity to know and comment upon the Agency's entire action. The 
EPA's February 2013 proposal was intended to cover a broad range of 
issues related to the correct treatment of emissions during SSM events 
in SIP provisions comprehensively. Because of an intervening court 
decision that affected the substance of the EPA's initial proposed 
action, it was necessary to issue a supplemental proposal. The EPA 
disagrees that the issuance of the SNPR adversely affected the ability 
of interested parties to understand the Agency's proposed action, 
because the SNPR only affected one aspect of the original proposed 
action. As the EPA explained in the SNPR: ``In this SNPR, we are 
supplementing and revising what we earlier proposed as a response to 
the Petitioner's requests but only to the extent the requests narrowly 
concern affirmative defense provisions in the SIPs. We are not revising 
or seeking further comment on any other aspects of the February 2013 
proposed action.'' \53\
---------------------------------------------------------------------------

    \53\ 79 FR 55919 at 55923.
---------------------------------------------------------------------------

    As to the commenters' concern that the EPA should take action in a 
single comprehensive rulemaking, the Agency is doing so. This SIP call 
action addresses all aspects of the Petition and it is based upon both 
the February 2013 proposal and the SNPR. As advocated by the 
commenters, the EPA's objective in this SIP call action is to provide 
states with comprehensive and up-to-date guidance concerning the 
correct treatment of emissions during SSM events in SIP provisions, 
consistent with CAA requirements as interpreted by recent court 
decisions. The EPA agrees with the commenters that providing states 
comprehensive guidance in this rulemaking is important to assist states 
in revising their SIP provisions consistent with CAA requirements. Any 
necessary changes to permits to reflect the removal of affirmative 
defense provisions from the underlying SIP will occur later, after the 
SIP provisions have been revised.
    12. Comments that the EPA has not proven that the existence of 
affirmative defense provisions in SIPs is resulting in specific 
environmental impacts or interference with attainment and maintenance 
of the NAAQS.
    Comment: Several commenters argued that the EPA has failed to 
demonstrate that the affirmative defense provisions at issue in this 
action have contributed to a specific NAAQS violation or otherwise 
caused harm to public health or the environment. The commenters contend 
that, because of the narrow scope of affirmative defense provisions, it 
is unlikely that their existence would cause or contribute to any 
violations of the NAAQS. Some commenters further noted that some states 
have experienced improved ambient air quality conditions, despite 
having SIPs in place with affirmative defense provisions at issue in 
this action.
    The commenters alleged that without providing specific record-based 
evidence of the impacts caused by affirmative defense provisions, it is 
unreasonable for the EPA to determine that existing provisions are 
substantially inadequate or otherwise not in compliance with the CAA. 
Some commenters further alleged that the EPA has no authority to issue 
a SIP call without ``find[ing] that the applicable implementation plan 
. . . is substantially inadequate to attain or maintain the relevant 
[NAAQS].''
    Response: As explained in the February 2013 proposal, the SNPR and 
this document, the EPA does not interpret its authority under section 
110(k)(5) to require proof that a deficient SIP provision caused a 
specific violation of the NAAQS at a particular monitor on a particular 
date, or that a deficient SIP provision undermined a specific 
enforcement action. Section 110(k)(5) explicitly authorizes the EPA to 
make a finding that a SIP provision is substantially inadequate to 
``comply with any requirement of'' the CAA, in addition to the 
authority to do so where a SIP is inadequate to attain and maintain the 
NAAQS or to address interstate transport. In light of the court's 
decision in NRDC v. EPA, the EPA has reexamined the question of whether 
affirmative defenses are consistent with CAA requirements for SIP 
provisions. As explained in this action, the EPA has concluded that 
such provisions are inconsistent with the requirements of section 113 
and section 304. Accordingly, the EPA has the authority to issue SIP 
calls to states, requiring that they revise their SIPs to eliminate the 
specific affirmative defense provisions identified in this action. 
Issues related to the EPA's authority under section 110(k)(5) are 
discussed in more detail in section VIII.A of this document.
    13. Comments that the EPA is violating the principles of 
cooperative federalism through this action.
    Comment: Several commenters stated that the EPA's action with 
respect to affirmative defenses in SIP provisions is inconsistent with 
the system of cooperative federalism contemplated by the CAA. The 
commenters alleged that this action is at odds with established CAA and 
judicial precedents indicating that states have broad discretion in 
developing SIP provisions, with the EPA's role being limited. Some 
commenters further alleged that the

[[Page 33860]]

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

    \54\ See, e.g., ``Oil and Natural Gas Sector: Reconsideration of 
Additional Provisions of New Source Performance Standards; Proposed 
rule,'' 79 FR 41752 at 41762-63 (July 17, 2014).
---------------------------------------------------------------------------

    With respect to the potential need to amend permits, as explained 
in the February 2013 proposal, ``the EPA does not intend its action on 
the Petition to affect existing permit terms or conditions regarding 
excess emissions during SSM events that reflect previously approved SIP 
provisions. . . . [A]ny needed revisions to existing permits will be 
accomplished in the ordinary course as the state issues new permits or 
reviews and revises existing permits. The EPA does not intend the 
issuance of a SIP call to have automatic impacts on the terms of any 
existing permit.'' \55\ Thus, these permit revisions that commenters 
expressed concern about need not occur during the 18-

[[Page 33861]]

month SIP development timeframe but may proceed thereafter according to 
normal permit revision requirements.
---------------------------------------------------------------------------

    \55\ See February 2013 proposal, 78 FR 12459 at 12482 (February 
22, 2013).
---------------------------------------------------------------------------

    Finally, the EPA notes, the burdens associated with SIP revisions 
and permit revisions are burdens imposed by the CAA. The states have 
both the authority and the responsibility under the CAA to have SIPs 
and permit programs that meet CAA requirements. It is inherent in the 
structure of the CAA that states thus have the burden to revise their 
SIPs and permits when that is necessary, whether because of changes in 
the CAA, changes in judicial interpretations of the CAA, changes in the 
NAAQS, or a host of other potential events that necessitate such 
revisions. Among those is the obligation to respond to a SIP call that 
identifies legal deficiencies in specific provisions in a state's SIP.
    15. Comments that the EPA is being inconsistent because rules 
promulgated by the EPA provide affirmative defense provisions for 
malfunction events.
    Comment: A number of commenters claimed that the EPA cannot 
interpret the CAA to prohibit affirmative defenses in SIP provisions 
because the Agency itself has issued regulations that include 
affirmative defenses for excess emissions during malfunction events. 
The commenters claim that the EPA is being inconsistent on this point 
and thus cannot require states to remove affirmative defenses from 
SIPs.
    Other commenters alleged that the EPA is being inconsistent because 
it has not adequately explained the reversal of its ``decades-old'' 
policy interpreting the CAA to allow affirmative defenses in SIP 
provision. The commenters cited to SIP provisions that the EPA 
previously approved in eight states between 2001 and 2010 that they 
believed would be affected by this SIP call. The commenters claimed 
that these prior actions were consistent with the EPA's SSM policy 
memoranda. Additionally, the commenters cited to federal regulations 
that the EPA has previously promulgated that include affirmative 
defense provisions. The commenters claimed that these prior actions are 
``inconsistent with EPA's proposed disallowance of affirmative 
defenses.''
    Response: The EPA has acknowledged that it has previously approved 
some SIP provisions with affirmative defenses that were consistent with 
its interpretation of the CAA in the 1999 SSM Guidance at the time it 
acted on those SIP submissions. However, since that time, two decisions 
from the D.C. Circuit have addressed fundamental interpretations of the 
CAA related to the legally permissible approaches for addressing excess 
emissions during SSM events.\56\ In light of those decisions, as 
explained in detail in the February 2013 proposal, the SNPR and this 
document, the EPA has concluded that certain aspects of its prior 
interpretation of the CAA, as set forth in the SSM Policy, were not the 
best interpretation of the CAA. As a result, certain SIP provisions 
that the EPA previously approved are also not consistent with the 
requirements of the CAA. In particular, this includes the EPA's prior 
interpretation of the CAA to allow affirmative defense provisions in 
SIPs in the 1999 SSM Guidance.
---------------------------------------------------------------------------

    \56\ See Sierra Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 2008), 
in the rulemaking docket at EPA-HQ-OAR-2012-0322-0048; see also NRDC 
v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), in the rulemaking docket at 
EPA-HQ-OAR-2012-0322-0885.
---------------------------------------------------------------------------

    The EPA has also acknowledged that it has in the past taken a 
similar approach regarding affirmative defense provisions in federal 
regulations addressing hazardous air pollution and in new source 
performance standards. Indeed, the EPA's inclusion of an affirmative 
defense provision in a federal regulation resulted in the court 
decision in NRDC v. EPA, in which the court rejected the Agency's 
interpretation of the CAA to allow affirmative defenses that limit or 
eliminate the jurisdiction of the courts. Just as the EPA is calling on 
states to revise their SIPs to remove affirmative defense provisions, 
the Agency is also taking action to correct such provisions in federal 
regulations.\57\ The continued existence of such provisions in the EPA 
regulations that have not yet been corrected does not mean that such 
provisions are authorized either in state or federal regulations.
---------------------------------------------------------------------------

    \57\ See, e.g., 79 FR 60897 (October 8, 2014); 79 FR 72914 
(December 8, 2014).
---------------------------------------------------------------------------

    As to the claim that the EPA has not adequately explained the basis 
for changing its interpretation of the CAA regarding affirmative 
defenses in SIP provisions, the Agency disagrees. The SNPR set forth in 
detail the basis for the EPA's revised interpretation of the CAA, in 
light of the court's decision in NRDC v. EPA.\58\ The commenters failed 
to specify why this explanation was ``inadequate.''
---------------------------------------------------------------------------

    \58\ 79 FR 55919 at 55929-30.
---------------------------------------------------------------------------

    16. Comments that existing affirmative defense provisions do not 
preclude parties from filing enforcement actions or hinder parties from 
seeking injunctive relief for violations of SIP requirements.
    Comment: One state commenter asserted that the existing affirmative 
defense provisions in the state's SIP do not prevent the state or the 
EPA from pursuing injunctive relief or mitigation of environmental 
impacts in the event of violations. Thus, the commenter supported the 
EPA's prior interpretation of the CAA to allow affirmative defense 
provisions, so long as courts can still award injunctive relief for 
violations. The commenter did not articulate how this prior statutory 
interpretation is consistent with the reasoning of the court in NRDC v. 
EPA concerning the same statutory provisions.
    By contrast, an environmental group commenter cited a citizen suit 
enforcement case in Texas in which the commenter claimed that the 
affirmative defense provision in that state's SIP operated as a de 
facto shield against any enforcement. The commenter stated that the 
EPA's approval of the affirmative defense was premised upon its only 
applying to civil penalties and not to injunctive relief and that the 
Agency's approval of the SIP provision was explicitly upheld on this 
basis by the Fifth Circuit. Nevertheless, the commenter asserted, the 
state agency has implemented this provision such that if the 
affirmative defense criteria are met, there is ``no violation'' and 
thus no potential for injunctive relief.
    Response: The EPA agrees that some of the affirmative defense 
provisions at issue in this action are expressly limited to monetary 
penalties and not to injunctive relief. This approach was consistent 
with the EPA's prior interpretation of the CAA concerning affirmative 
defense provisions in SIPs but also consistent with the arguments that 
the D.C. Circuit rejected in the NRDC v. EPA decision. Thus, the fact 
that some of the affirmative defense provisions addressed in this 
action preserve the possibility for injunctive relief, even if the 
court could award no monetary penalties, is no longer a deciding 
factor.
    The EPA also agrees that some agencies or courts may not apply the 
affirmative defense provisions in the manner intended at the time the 
EPA approved them into the SIP. Incorrect application of SIP 
affirmative defense provisions by sources, regulators or courts is a 
matter of concern. However, even perfect implementation of a SIP 
affirmative defense provision does not cure the underlying and now 
evident absence of a legal basis for such provisions. Again, the fact 
that a given affirmative defense provision is being implemented 
correctly or incorrectly is no longer a deciding factor for purposes of 
this SIP call action.
    These issues are not pertinent to the EPA's decision in this action 
to require states to remove the affirmative defense provisions from the 
previously approved SIPs. Rather, as explained in

[[Page 33862]]

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

[[Page 33863]]

continuous controls and cannot include exemptions for emissions during 
SSM events. The EPA concludes that making the exemptions from emission 
limitations conditional does not alter the fact that once exercised 
they are illegal exemptions.
---------------------------------------------------------------------------

    \59\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    19. Comments that the definition of ``emission limitation'' in CAA 
section 302(k) does not support this SIP call action.
    Comment: Several commenters noted that while the EPA depends on the 
definition of ``emission limitation'' in the CAA section 302(k) for 
this action, that CAA provision does not support this SIP call action, 
including that the CAA does not require that SIPs contain continuous 
emissions standards in the form asserted by the EPA. The commenters 
alleged that the definition in the CAA and supporting materials 
interpreting that definition do not support the EPA's requiring one 
emission limitation to apply in all circumstances at all times. Some 
commenters further alleged that states subject to the EPA's SIP call 
action have implementation plans that provide emission limitations that 
apply continuously through a combination of numerical emission 
limitations, the general duty to minimize emissions and the affirmative 
defense criteria for excess emissions during malfunctions.
    Several commenters questioned why, even if the challenged 
affirmative defense provisions do not qualify as ``emission 
limitations'' or ``emissions standards'' under the first part of the 
definition, they are not approvable as ``design, equipment, work 
practice or operational standards'' promulgated under the second part 
of the definition. Some commenters argued that, to the extent that 
affirmative defense provisions in SIPs do not satisfy the definition of 
``emission limitation,'' they would still be approvable elements of a 
SIP as ``other control measures, means, or techniques'' allowed under 
CAA section 110(a)(2). Further, some commenters believe that the 
legislative history cited in the SNPR does not support the EPA's 
position but rather is only intended to preclude the use of dispersion 
techniques, such as intermittent controls.
    One commenter stated that the Portland Cement NESHAP, at issue in 
the NRDC v. EPA decision, was classified by statute as an ``emissions 
standard,'' a term defined by the CAA and defined as applying ``on a 
continuous basis.'' The commenter stated that SIP provisions involve 
more than ``emissions standards'' and need not be ``emissions 
standards.'' \60\ Thus, according to the commenter, the NRDC v. EPA 
decision does not apply to SIP rules.
---------------------------------------------------------------------------

    \60\ See CAA section 110(a)(2)(A).
---------------------------------------------------------------------------

    Response: The commenters alleged that the EPA's interpretation of 
the CAA section 302(k) definition of ``emission limitation'' in this 
action was inappropriate and that section 302(k) does not support this 
SIP call action. The EPA notes that it is not the Agency's position 
that all emission limitations in SIP provisions must be set at the same 
numerical level for all modes of source operation or even that they 
must be expressed numerically at all. To the contrary, the EPA intended 
in the February 2013 proposal and the SNPR to indicate that states may 
elect to create emission limitations that include alternative emission 
limitations, including specific technological controls or work 
practices, that apply during certain modes of source operation such as 
startup and shutdown. However, this comment is not relevant to the 
issue of affirmative defense provisions in SIPs. It is not for the 
reason that affirmative defense provisions do not meet the definition 
of an ``emission limitation'' in section 302(k) that the EPA is 
promulgating this SIP call action for affirmative defense provisions. 
The EPA has concluded that affirmative defense provisions are 
substantially inadequate to meet CAA requirements concerning 
enforcement, in particular the requirements of section 113 and section 
304.
    As to commenters' argument that affirmative defense provisions can 
be appropriately considered to be ``design, equipment, work practice or 
operational standards'' under CAA section 302(k), the critical aspect 
of an emission limitation in general is that it be a ``requirement . . 
. which limits the quantity, rate, or concentration of emissions of air 
pollutants on a continuous basis . . . .'' These provisions operate to 
excuse sources from liability for emissions under certain conditions, 
not to limit the emissions in question. The affirmative defense 
provisions at issue in this final action do not themselves, or in 
combination with other components of the emission limitation, limit the 
quantity, rate or concentration of air pollutants on a continuous 
basis. These affirmative defense provisions, therefore, do not 
themselves meet the statutory definition of an emission limitation 
under section 302(k).
    The EPA notes that the definition of ``emission limitation'' in 
section 302(k) is relevant, however, with respect to those affirmative 
defense provisions that commenters claim are merely a means to define 
what constitutes a ``violation'' of an applicable SIP emission 
limitation. As previously explained, the EPA believes that an 
``affirmative defense'' structured in such a fashion is deficient 
because it in effect creates a conditional exemption from the SIP 
emission limitations. By creating such exemptions, conditional or 
otherwise, an affirmative defense of this type would render the 
emission limitations less than continuous.
    The EPA disagrees with commenters' remaining points because the 
EPA's position on what appropriately qualifies as an emission 
limitation is consistent with the CAA, relevant legislative history and 
case law. These issues are addressed in more detail in sections 
VII.A.3.i through 3.j of this document.
    20. Comments that the EPA has failed to show that state SIPs are 
substantially inadequate, as is required to promulgate a SIP call.
    Comment: Several commenters noted that before the EPA can issue a 
SIP call under section 110(k)(5) with respect to affirmative defense 
provisions, the EPA must determine that a SIP provision is 
``substantially inadequate to attain or maintain the relevant [NAAQS], 
to mitigate adequately the interstate pollutant transport described in 
section 7506a of this title or section 7511c of this title, or to 
otherwise comply with any requirement of this chapter.'' The commenters 
further stated that Congress employed a high bar in the language of CAA 
section 110(k)(5) in requiring the EPA to find ``substantial'' 
inadequacies, as opposed to other CAA provisions that permit the Agency 
to act based on ``discretion'' or when it ``may be appropriate.'' The 
commenters alleged that the EPA has not demonstrated a ``substantial 
inadequacy'' with respect to the affirmative defense provisions at 
issue in the SNPR, as required to issue a SIP call.
    Some commenters also argued that the EPA has failed in its SNPR to 
define or interpret ``substantially inadequate'' or provide any 
standards for assessing the adequacy of a SIP with respect to 
affirmative defense provisions. The commenters also alleged that, if 
the EPA is required to rely on data and evidence in evaluating SIP 
revisions, it follows that the EPA should produce at least the same 
level of data and evidence, if not more, to support a SIP call that is 
based on the more stringent substantial inadequacy standard of section 
110(k)(5).
    Response: The EPA disagrees with the commenters' arguments that the 
Agency has failed to establish that the

[[Page 33864]]

affirmative defense provisions identified in the SNPR are 
``substantially inadequate'' as required by section 110(k)(5). As 
explained in the SNPR and this action, the EPA has determined that 
affirmative defense provisions at issue in this action are 
substantially inadequate because they are inconsistent with applicable 
legal requirements of the CAA. The commenters raised similar arguments 
with respect to the EPA's authority to issue a SIP call to address 
other forms of deficient SIP provisions, such as automatic or 
discretionary exemptions from emission limitations. The EPA responds to 
these broader arguments in sections VIII.D.46 through D.48 of this 
document.
    21. Comments that this action is not national in scope, and 
therefore the D.C. Circuit is not the sole venue for review of this 
action.
    Comment: Several commenters claimed that the EPA is incorrect in 
stating that this SIP call action is a single nationally applicable 
action and of nationwide scope or effect. The commenters alleged that 
review of all affected SIP provisions in a single action in the D.C. 
Circuit would inappropriately limit the scope of review by obscuring 
distinctions between the various states' regulatory programs and 
practical concerns. The commenters asserted that none of the various 
state SIP provisions addressed in the SNPR were the same, and the EPA 
analyzed each separately and provided case-by-case justification for 
its proposed action as to each. Further, the commenters argued that 
although the EPA has packaged the SIP calls in one Federal Register 
document, any final action that the EPA takes with respect to a single 
state's affirmative defense provision is only locally applicable and 
therefore should be reviewed in the individual circuits with 
jurisdiction over the affected state. One commenter further contended 
that, while the EPA's revised SSM Policy may be of interest to states 
to which the SIP call does not directly apply, that does not make the 
action ``nationally applicable.''
    The commenters acknowledged that the EPA cited Texas v. EPA in 
support of its assertion, but the commenters allege that the Fifth 
Circuit in that case never reached the issue of nationwide scope and 
effect.\61\ The commenters claimed that this SIP call action is 
distinct from the rule at issue in Texas v. EPA because this final 
action turns on the particulars of the SIP call action's impact on each 
individual state's SIP. One commenter also claimed that the EPA has 
failed to provide authority or a legal basis to support its 
determination that this rulemaking is of ``nationwide scope or 
effect.'' Such failure, according to the commenter, violated the 
requirements of section 307(d)(3) and did not allow for full and 
meaningful comment on this issue.
---------------------------------------------------------------------------

    \61\ See No. 10-60961, 2011 WL 710598 (5th Cir. Feb. 24, 2011).
---------------------------------------------------------------------------

    One commenter alleged that the EPA has waived its challenge to 
venue for those circuits that have already weighed in regarding 
individual state SIP provisions at issue in this action, including 
Texas's affirmative defense provisions. Another commenter claimed that 
the discussion over appropriate venue in the February 2013 proposal and 
SNPR presupposes that the EPA's issuance of a revised SSM Policy is a 
``final agency action'' subject to judicial review under section 
307(b)(1) but argued that the EPA has failed to determine that its 
issuance of the SSM Policy, in and of itself, constitutes ``final 
agency action.''
    Response: The EPA disagrees with the commenters' theories 
concerning the scope of the Agency's action. These comments on the SNPR 
questioning the EPA's determination of ``nationwide scope and effect'' 
for this action largely repeat similar comments on the February 2013 
proposal. As with those prior comments, commenters on the SNPR made the 
basic argument that this action is not of nationwide scope and effect 
because the EPA is reviewing individual SIP provisions and directing 
states to correct their respective deficient SIP provisions. The EPA 
disagrees with commenters because, as explained in more detail in its 
response in section V.D.6 of this document, this rulemaking action 
applies the same ``process and standard'' to numerous areas across the 
country. While it is correct that the SIP submissions that states make 
in response to this SIP call will be reviewed separately by the EPA and 
subsequently subject to potential judicial review in various circuits, 
the EPA's legal interpretation of the CAA concerning permissible SIP 
provisions to address emissions during SSM events in this action is 
nationally applicable to all states subject to the SIP call. The EPA 
provided a full explanation of its basis for this determination of 
nationwide scope and effect in the February 2013 proposal and the SNPR.
    The EPA also disagrees with the argument that the Agency has waived 
venue regarding challenges to this SIP call action concerning the 
affirmative defense provisions in the Texas SIP. Evidently, the 
commenter believes that because a prior challenge to another EPA 
rulemaking concerning the affirmative defense provisions occurred in 
the Fifth Circuit, it necessarily follows that any other rulemaking 
related to such provisions can only occur in the Fifth Circuit. The EPA 
believes that this interpretation of its authority under section 
307(b)(1) is simply incorrect. Under section 307(b)(1), the EPA is 
explicitly authorized to make a determination that a specific 
rulemaking action is of ``nationwide scope and effect.'' The statute 
does not specify the considerations that the EPA is to take into 
account when making such a determination, let alone provide that the 
Agency cannot invoke this because some aspect of the rulemaking at 
issue might previously have been addressed in one or more other circuit 
courts. To the contrary, the EPA believes that section 307(b)(1) 
explicitly provides authority for the Agency to determine that a given 
rulemaking should be reviewed in the D.C. Circuit in situations such as 
those presented in this action that affects important questions of 
statutory interpretation that affect states nationwide.
    The EPA likewise disagrees with the argument that its action is not 
a final agency action. Within this action, the EPA is taking final 
agency action to respond to the Petition, updating its interpretations 
of the CAA in the SSM Policy and applying its interpretations of the 
CAA in the SSM Policy to specific SIP provisions in the SIPs of many 
states. The EPA is conducting this action through notice-and-comment 
rulemaking to assure full consideration of the issues. As stated 
elsewhere in this document, the revised SSM Policy is a nonbinding 
policy statement that does not, in and of itself, constitute ``final'' 
action. However, the EPA is taking ``final'' action by responding to 
the Petition and issuing the resulting SIP call action. To the extent 
that interpretations expressed in the revised SSM Policy are also 
relied on to support this ``final'' action, then the EPA's 
interpretations of the CAA requirements for SIP provisions applicable 
to emissions during SSM events are part of the final agency action and 
are subject to judicial review. To the extent the commenters are 
otherwise arguing that the issuance of the updated SSM Policy in and of 
itself is not final agency action subject to judicial review under the 
CAA, the EPA agrees with this assertion. The EPA notes that the 
commenters are at liberty to adopt this position and waive their 
opportunity to challenge the SSM Policy because they do not consider it 
final agency action.

[[Page 33865]]

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

[[Page 33866]]

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

[[Page 33867]]

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

[[Page 33868]]

obligations under sections 110(k)(3), 110(l) and 193 and under any 
other substantive provisions of the CAA applicable to specific SIP 
submissions.
    To the extent that the commenters are concerned about whether the 
SIP revisions meet applicable requirements, they will have the 
opportunity to participate in the development of those revisions. 
States must submit SIP revisions following an opportunity for comment 
at the state level. Additionally, the EPA acts on SIP submissions 
through its own notice-and-comment process. As part of these 
administrative processes, both the state and the EPA will need to 
evaluate whether the proposed revision to the SIP meets applicable CAA 
requirements. In the context of those future rulemaking actions, the 
public will have a chance to review the substance of the specific SIP 
revisions in response to this SIP call, as well as the state's and the 
EPA's analysis of the SIP submissions for compliance with the CAA.
    28. Comments that the EPA does not have authority to take this 
action without Congressional authorization.
    Comment: A commenter contended that the EPA does not have the 
authority to write law and that the EPA should be required to seek 
changes to the applicable law through Congress, before eliminating 
affirmative defense and due process provisions from SIPs.
    Response: Through this action the EPA is not attempting to rewrite 
the CAA. Rather, the EPA is requiring states to revise specific SIP 
provisions to comply with the existing requirements of the CAA, as 
interpreted by the courts. As explained in detail in the SNPR and this 
document, the EPA has determined that affirmative defense provisions at 
issue in this action are inconsistent with the existing requirements of 
the CAA.
    29. Comments that affirmative defense provisions are needed to 
ensure sources' Constitutional right to due process in the event of 
violations.
    Comment: A number of commenters argued that by requiring the 
removal of affirmative defense provisions from SIPs, the EPA is 
impinging on the Constitutional rights of sources that may have wanted 
to assert such affirmative defenses in an enforcement action. A 
commenter claimed that affirmative defense provisions are not ``loop 
holes,'' as alleged by the EPA, but instead are fundamental due process 
provisions which should be retained at all levels for the protection of 
the public. Another commenter cited State Farm Mut. Auto Ins. Co. v. 
Campbell, for the proposition that a monetary penalty that is ``grossly 
excessive . . . constitutes an arbitrary deprivation of property.'' 
\62\ Other commenters claimed that excessive penalties constitute an 
arbitrary deprivation of property. The commenters asserted that a 
penalty is excessive where it applies severe punishment to an act that 
is unavoidable.
---------------------------------------------------------------------------

    \62\ See 538 U.S. 408, 417 (2003).
---------------------------------------------------------------------------

    Response: The commenters' due process concerns suggest that without 
an affirmative defense provision, any penalty assessed for violation of 
a SIP would be per se ``excessive'' or ``arbitrary.'' Though not 
expressly stated, some of these comments appear to suggest that the 
existing CAA enforcement provisions are facially unconstitutional. The 
EPA disagrees. The CAA does not mandate that any penalty is 
automatically assessed for a violation. Rather the CAA establishes a 
maximum civil penalty in section 113(b) but then expressly provides in 
section 113(e) the criteria that the EPA or the courts (as appropriate 
in administrative or judicial enforcement) ``shall take into 
consideration (in addition to other factors as justice may require).'' 
These criteria explicitly include consideration of ``good faith efforts 
to comply.'' Thus, the CAA on its face does not mandate the imposition 
of any penalty automatically, much less one that is per se excessive. 
Notably, the commenters do not elaborate on how or why they believe the 
statutory penalty provisions of the CAA are facially unconstitutional, 
instead making generalized claims.
    To the extent that the commenters are raising an ``as applied'' 
claim of unconstitutionality, any such claim can be raised in the 
future in the context of a specific application of the statute in an 
enforcement action. Such was the case in the State Farm case cited by 
the commenters. In that case, a court had awarded punitive damages of 
$145 million in addition to $1 million compensatory damages in an 
automobile liability case. A statutory penalty provision was not at 
issue in that case and thus there were no statutory criteria for the 
lower court to consider in determining the appropriate penalty amount. 
Rather, in its review of whether the punitive damage award was 
excessive, and thus violated due process, the Court looked at three 
factors it has instructed lower courts to consider in assessing 
punitive damages. Such would be the case with any claim that a CAA 
penalty violated due process, where a reviewing court would consider 
whether the court appropriately considered the relevant penalty factors 
in assessing a penalty claimed as unconstitutional ``as applied.''
    30. Comments that the EPA's action eliminating affirmative defense 
provisions from SIPs violates the Eighth Amendment of the Constitution.
    Comment: Several commenters asserted that relying on judicial 
discretion to determine the appropriateness of penalties is arguably 
unconstitutional under the Eighth Amendment's prohibition on excessive 
fines and punishments by allowing potentially significant penalties 
that are disproportionate to the offense. The commenter stated that an 
affirmative defense provision ``helps guard against infringement of the 
Eighth Amendment's protections.'' Other commenters argued that the U.S. 
Supreme Court has held that Eighth Amendment protections apply to 
government action in a civil context as well as in a criminal context. 
The commenters claimed that significant penalties are not proportional 
to an offense caused by unavoidable events, such as excess emissions 
during malfunction events. The commenters concluded that unless the EPA 
allows states to accommodate unavoidable emissions through changes to 
applicable emission limitations before affirmative defenses are 
removed, the EPA's proposal would ``run afoul of Constitutional 
limitations.''
    One commenter stated that an affirmative defense is the ``minimum 
protection EPA or the state must provide to avoid infringing 
constitutional rights.'' The commenter also argued that the EPA itself 
has relied on the existence of an affirmative defense to defend against 
a challenge to the achievability of an emission limitation in a FIP. To 
support this argument, the commenter quoted from the court's opinion in 
Montana Sulphur.\63\
---------------------------------------------------------------------------

    \63\ See 666 F.3d at 1192-93 (``EPA acknowledges that violations 
are likely inevitable, but relies on the provision of an affirmative 
defense to compensate for infeasibility problems.'').
---------------------------------------------------------------------------

    Response: For the reasons provided above regarding commenters' due 
process claims, the EPA also disagrees with their claims that 
eliminating affirmative defense provisions in SIPs would result in the 
penalty provisions of the CAA being facially in violation of the Eighth 
Amendment. Similarly, if a party believes that the penalties assessed 
in any civil enforcement action do violate the Eighth Amendment, they 
can raise a challenge that the specific SIP provision at issue ``as 
applied'' in that instance violates the U.S. Constitution. As with the 
commenters'

[[Page 33869]]

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

[[Page 33870]]

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

[[Page 33871]]

discuss the Luminant Generation v. EPA decision in the SNPR and also 
explained in detail why it believes that the logic of the DC Circuit's 
decision in NRDC v. EPA supports this SIP call action for affirmative 
defense provisions. Specifically, the EPA recognized that both the 
Fifth Circuit and the DC Circuit were evaluating the same fundamental 
question--whether section 113 and section 304 preclude the creation of 
affirmative defense provisions that alter or eliminate the jurisdiction 
of federal courts to determine liability and impose remedies for 
violations of CAA requirements in judicial enforcement actions. The EPA 
explained that, after reviewing the NRDC v. EPA decision and the 
Luminant Generation v. EPA decision, the Agency determined that its 
prior interpretation of the CAA, as advanced in both courts, is not the 
best reading of the statute. Indeed, it is significant that the 
Luminant court upheld the EPA's approval of affirmative defense 
provisions for unplanned events (i.e., malfunctions) and the 
disapproval of affirmative defenses for planned events (i.e., startup, 
shutdown and maintenance) specifically because the court deferred to 
the Agency's reasonable interpretation of ambiguous statutory 
provisions in the case at hand. In the SNPR, the EPA explained point by 
point why it now believes that the decision of the DC Circuit in NRDC 
v. EPA reflected the better reading of section 113 and section 304 and 
thus that the Agency no longer interprets the CAA to permit affirmative 
defenses in SIP provisions. Therefore, the EPA believes the Fifth 
Circuit could also take a different view of the reasonableness of the 
EPA's resolution of ambiguous provisions after reviewing the EPA's 
current interpretation of the statute.
    37. Comments that the EPA has recently approved affirmative defense 
provisions through various SIP actions and, therefore, these provisions 
are proper under the EPA's interpretation of the CAA.
    Comment: One commenter noted that the EPA has never taken issue 
with the affirmative defense provisions in states' SIPs across the many 
instances where the EPA has reviewed the states' later SIP submissions. 
The implication of the commenters' argument is that if the EPA has 
previously approved a SIP submission and directly or indirectly 
reapproved an affirmative defense provision in the past, this means 
that the affirmative defense provision still meets CAA requirements.
    Response: The EPA disagrees with this comment. As explained in the 
EPA's response in section VIII.D.18 of this document, when the EPA 
takes final action on a state's SIP submission, this does not 
necessarily entail reexamination and reapproval of every provision in 
the existing SIP. The EPA often only examines the specific SIP 
provision the state seeks to revise in the SIP submission, which may 
not include any affirmative defense provisions. To the extent the EPA 
did review and approve any affirmative defense provision consistent 
with its prior interpretation of the CAA that narrowly tailored 
affirmative defenses were appropriate, the EPA has fully explained why 
it is now revising that interpretation such that past action based on 
the earlier interpretation would no longer provide precedent for the 
EPA's actions. As part of this final action, applying its revised SSM 
Policy, the EPA is taking action to address affirmative defense 
provisions in SIPs. Since the issuance of the court's opinion in NRDC 
v. EPA, the EPA has similarly taken steps in its own ongoing NSPS and 
NESHAP rulemakings to ensure that any existing affirmative defense 
provisions are removed and that no affirmative defenses are proposed or 
finalized.\64\
---------------------------------------------------------------------------

    \64\ See, e.g., ``National Emission Standards for Hazardous Air 
Pollutants Residual Risk and Technology Review for Flexible 
Polyurethane Foam Production; Final rule,'' 79 FR 48073 (August 15, 
2014) (announcing decision not to finalize the proposed affirmative 
defense); ``National Emission Standards for Hazardous Air 
Pollutants: Generic Maximum Achievable Control Technology Standards; 
and Manufacture of Amino/Phenolic Resins; Final rule,'' 79 FR 60897 
(October 8, 2014) (announcing decision not to finalize the proposed 
affirmative defense); ``Oil and Natural Gas Sector: Reconsideration 
of Additional Provisions of New Source Performance Standards; Final 
rule,'' 79 FR 79017 (December 31, 2014) (removing affirmative 
defense from regulations); and ``National Emission Standards for 
Hazardous Air Pollutants for Major Sources: Industrial, Commercial, 
and Institutional Boilers and Process Heaters; Proposed rule,'' 80 
FR 3089 (January 21, 2015) (proposing to remove affirmative defense 
from regulations).
---------------------------------------------------------------------------

    38. Comments that affirmative defense provisions function as 
structured state ``enforcement discretion'' and are an important tool 
for states to prioritize enforcement activities.
    Comment: A state commenter characterized the affirmative defense 
contained in the state's SIP as an ``enforcement discretion'' tool that 
supports the state's regulation of excess emissions during malfunction 
events and promotes preventive measures, proper monitoring and 
reporting by sources. The state asserted that removal of the 
affirmative defense provision from the SIP would require the state to 
address and track violations that are not a high priority to the state 
agency. The state argued that the affirmative defense provision 
provides certainty to the regulated community by providing structure to 
how the state will exercise its enforcement discretion. The state 
expressed concern that without the affirmative defense, there will be 
uncertainty for the regulated community and less incentive for sources 
to make repairs and submit excess emissions reports promptly. The 
commenter explained that state law requires reporting of emission 
events that exceed an established ``reportable'' quantity and that this 
prompt reporting allows the state agency to evaluate each event 
reported quickly. In investigating reports of emission events, the 
state claimed, it ``exercises enforcement discretion only in cases in 
which it determines that each affirmative defense criteria is met,'' 
and the state claimed that elimination of the affirmative defense 
provision would result in an increase of unavoidable emissions being 
treated as violations. In general, the state objected to the 
elimination of the affirmative defense provision because it would 
strain the state agency's enforcement resources.
    Response: These comments concerning the state's use of affirmative 
defense criteria in structuring the exercise of its enforcement 
discretion (e.g., determining whether to bring an enforcement action or 
to further investigate an emissions events) appear to be based on a 
misunderstanding of the SNPR. This SIP call action directing states to 
remove affirmative defense provisions from SIPs would not prevent the 
state from applying such criteria in the exercise of its own 
enforcement discretion. For example, the state is free to consider 
factors such as a facility's efforts to comply and the facility's 
compliance history in determining whether to investigate an excess 
emissions event or whether to issue a notice of violation or otherwise 
pursue enforcement. Application of such criteria may well be useful and 
appropriate to the state in determining the best way to allocate its 
own enforcement resources. So long as a state does not use the criteria 
in such a way that the state fails to have a valid enforcement program 
as required by section 110(a)(2)(C), the state is free to use criteria 
like those of an affirmative defense as a way to ``structure'' its 
exercise of its own enforcement discretion.
    However, as explained in the SNPR, the EPA's view is that SIPs 
cannot include affirmative defense provisions that alter the 
jurisdiction of the federal court to assess penalties in judicial 
enforcement proceeding for violation of CAA requirements. The EPA has 
determined that the specific affirmative

[[Page 33872]]

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

[[Page 33873]]

normal rulemaking and SIP revision processes to correct any identified 
problems.
    Response: The CAA provides a mechanism specifically for the 
correction of flawed SIPs. Section 110(k)(5) provides: ``Whenever the 
Administrator finds that the applicable implementation plan for any 
area is substantially inadequate to . . . comply with any requirement 
of [the Act], the Administrator shall require the State to revise the 
plan as necessary to correct such inadequacies.'' This type of action 
is commonly referred to as a ``SIP call.'' The EPA, in this action, is 
using a SIP call to notify states of flawed provisions in SIPs and 
initiate a process for correction of those provisions.
    The EPA, largely through its Regional Offices, has individually 
reviewed each state provision subject to the SIP call. The EPA will 
work closely with each state, during future rulemaking actions taken by 
states to adopt SIP revisions and then subsequent actions by the EPA, 
to determine whether these adopted SIP revisions meet the mandate of 
the SIP call and are consistent with CAA requirements. As part of these 
actions, each individual state will work closely with the EPA to 
address the SIP deficiencies identified in this action.
    42. Comments that the EPA should not consider those comments on the 
February 2013 proposal that concern affirmative defense provisions in 
SIPs to no longer be relevant.
    Comment: One commenter disagreed with the EPA's decision not to 
respond to certain comments submitted on the February 2013 proposal, to 
the extent the comments applied to issues related to affirmative 
defense provisions in SIPs generally or to issues related to specific 
affirmative defense provisions identified by the Petitioner, on a basis 
that those comments are no longer relevant if the EPA finalizes its 
action as proposed in the SNPR. According to the commenter, the EPA's 
interpretation of the CAA has not changed so as to exclude the other 
SSM provisions in the proposed action, and this alone shows that the 
comments submitted on the February 2013 proposal are still relevant.
    Response: The EPA's proposed action on the Petition in the SNPR 
superseded the February 2013 proposal with respect to the issues 
related to affirmative defense provisions in SIPs. As explained in 
detail in the SNPR, after the February 2013 proposal, a federal court 
ruled that the CAA precludes authority of the EPA to create affirmative 
defense provisions applicable to private civil suits in its own 
regulations. As a result, the EPA issued the SNPR to propose applying a 
revised interpretation of the CAA to affirmative defense provisions in 
SIPs consistent with the reasoning of court's decision in NRDC v. EPA. 
The EPA supplemented and revised its proposed response to the issues 
raised in the Petition to the extent they concern affirmative defenses 
in SIPs, and the EPA solicited comment on its revised proposed 
response. Because the EPA's interpretation of the CAA with respect to 
the legal basis for affirmative defense provisions in SIPs changed from 
the time of the February 2013 proposal to the SNPR, comments on the 
February 2013 proposal, to the extent they concern affirmative defenses 
in SIPs, are not relevant to the EPA's revised proposed action. For 
example, comments on the February 2013 proposal that argue that the EPA 
was wrong to interpret the CAA to allow affirmative defense provisions 
for malfunction events but not for startup or shutdown events are not 
relevant when the Agency's interpretation of the CAA is now that no 
such affirmative defense provisions are valid. Similarly, comments that 
the criteria that the EPA previously recommended for valid affirmative 
defense provisions were too many, too few, too stringent or too lax 
simply have no relevance when the EPA does not interpret the CAA to 
allow any such affirmative defense provisions regardless of the number, 
nature or stringency of the criteria for qualifying for the affirmative 
defense. The EPA believes that it is reasonable for the Agency to 
determine that comments that have no bearing on the proposed action 
concerning affirmative defense provisions in the SNPR are not relevant. 
Because the EPA is finalizing the action on the Petition as proposed in 
the SNPR concerning affirmative defense provisions in SIPs, it is doing 
so based on evaluation of the comments that are relevant to the SNPR.

V. Generally Applicable Aspects of the Final Action in Response to 
Request for the EPA's Review of Specific Existing SIP Provisions for 
Consistency With CAA Requirements

A. What the Petitioner Requested

    The Petitioner's second request was for the EPA to find as a 
general matter that SIPs ``containing an SSM exemption or a provision 
that could be interpreted to affect EPA or citizen enforcement are 
substantially inadequate to comply with the requirements of the Clean 
Air Act.'' \65\ In addition, the Petitioner requested that if the EPA 
finds such defects in existing SIPs, the EPA ``issue a call for each of 
the states with such a SIP to revise it in conformity with the 
requirements or otherwise remedy these defective SIPs.'' \66\
---------------------------------------------------------------------------

    \65\ Petition at 14.
    \66\ Id.
---------------------------------------------------------------------------

    The Petitioner argued that many SIPs currently contain provisions 
that are inconsistent with the requirements of the CAA. According to 
the Petitioner, these provisions fall into two general categories: (1) 
Exemptions for excess emissions by which such emissions are not treated 
as violations; and (2) enforcement discretion provisions that may be 
worded in such a way that a decision by the state not to enforce 
against a violation could be construed by a federal court to bar 
enforcement by the EPA under CAA section 113, or by citizens under CAA 
section 304.
    First, the Petitioner expressed concern that many SIPs have either 
automatic or discretionary exemptions for excess emissions that occur 
during periods of SSM. Automatic exemptions are those that, on the face 
of the SIP provision, provide that any excess emissions during such 
events are not violations even though the source exceeds the otherwise 
applicable emission limitations. These provisions preclude enforcement 
by the state, the EPA or citizens, because by definition these excess 
emissions are defined as not violations. Discretionary exemptions or, 
more correctly, exemptions that may arise as a result of the exercise 
of ``director's discretion'' by state officials, are exemptions from an 
otherwise applicable emission limitation that a state may grant on a 
case-by-case basis with or without any public process or approval by 
the EPA, but that do have the effect of barring enforcement by the EPA 
or citizens. The Petitioner argued that ``[e]xemptions that may be 
granted by the state do not comply with the enforcement scheme of title 
I of the Act because they undermine enforcement by the EPA under 
section 113 of the Act or by citizens under section 304.''
    The Petitioner explained that all such exemptions are fundamentally 
at odds with the requirements of the CAA and with the EPA's 
longstanding interpretation of the CAA with respect to excess emissions 
in SIPs. SIPs are required to include emission limitations designed to 
provide for the attainment and maintenance of the NAAQS and for 
protection of PSD increments. The Petitioner emphasized that the CAA 
requires that such emission limitations be ``continuous'' and that they 
be established at levels that achieve sufficient emissions control to 
meet the required CAA objectives when adhered

[[Page 33874]]

to by sources. Instead, the Petitioner contended, exemptions for excess 
emissions through ``loopholes'' in SIP provisions often result in real-
world emissions that are far higher than the level of emissions 
envisioned and planned for in the SIP.
    Second, the Petitioner expressed concern that many SIPs have 
provisions that may have been intended to govern only the exercise of 
enforcement discretion by the state's own personnel but are worded in a 
way that could be construed to preclude enforcement by the EPA or 
citizens if the state elects not to enforce against the violation. The 
Petitioner contended that ``any SIP provision that purports to vest the 
determination of whether or not a violation of the SIP has occurred 
with the state enforcement authority is inconsistent with the 
enforcement provisions of the Act.''
    After articulating these overarching concerns with existing SIP 
provisions, the Petitioner requested that the EPA evaluate specific SIP 
provisions identified in the separate section of the Petition titled, 
``Analysis of Individual States' SSM Provisions.'' \67\ In that 
section, the Petitioner identified specific provisions in the SIPs of 
39 states that the Petitioner believed to be inconsistent with the 
requirements of the CAA and explained in detail the basis for that 
belief. In the conclusion section of the Petition, the Petitioner 
listed the SIP provisions in each state for which it seeks a specific 
remedy. A more detailed explanation of the Petitioner's arguments 
appears in the 2013 February proposal.\68\
---------------------------------------------------------------------------

    \67\ Petition at 17.
    \68\ See February 2013 proposal, 78 FR 12459 at 12473-74 
(February 22, 2013).
---------------------------------------------------------------------------

B. What the EPA Proposed

    In its February 2013 proposal, the EPA proposed to deny in part and 
to grant in part the Petition with respect to this two-part request. 
The EPA explained its longstanding interpretations of the CAA with 
respect to SIP provisions that apply to excess emissions during SSM 
events. The EPA also agreed that automatic exemptions, discretionary 
exemptions via director's discretion, ambiguous enforcement discretion 
provisions that may be read to preclude EPA or citizen enforcement and 
affirmative defense provisions can interfere with the overarching 
objectives of the CAA, such as attaining and maintaining the NAAQS, 
protecting PSD increments and improving visibility. Such provisions in 
SIPs can interfere with effective enforcement by air agencies, the EPA 
and the public to assure that sources comply with CAA requirements, and 
such interference is contrary to the fundamental enforcement structure 
provided in CAA sections 113 and 304.
    Accordingly, the EPA evaluated each of the specific SIP provisions 
that the Petitioner identified to determine whether it is consistent 
with CAA requirements for SIP provisions. The EPA conducted this 
evaluation in light of its interpretations of the CAA reflected in the 
SSM Policy and recent court decisions pertaining to relevant issues. In 
section IX of the February 2013 proposal, the EPA provided its proposed 
view with respect to each of these SIP provisions. The EPA solicited 
comment on its proposed grant or denial of the Petition for each of the 
specific SIP provisions and its rationale for the proposed action. 
Through consideration of the overarching issues raised by the Petition, 
and informed by the evaluation of the specific SIP provisions 
identified in the Petition as a group, the EPA also determined that it 
was necessary to reiterate, clarify and amend its SSM Policy. The EPA 
thus took comment on its interpretations of the CAA set forth in the 
SSM Policy in order to assure that it provides comprehensive and up-to-
date guidance to states concerning SIP provisions applicable to 
emissions from sources during SSM events.

C. What Is Being Finalized in This Action

    The EPA is taking final action to deny in part and to grant in part 
the Petition with respect to the request to find specific SIP 
provisions inconsistent with the CAA as interpreted by the Agency in 
the SSM Policy. The EPA is also taking final action to grant the 
Petition on the request to make a finding of substantial inadequacy and 
to issue a SIP call for specific existing SIP provisions. The basis for 
the SIP call is that these provisions include an automatic exemption, a 
discretionary exemption, an inappropriate enforcement discretion 
provision, an affirmative defense provision, or other form of provision 
that is inconsistent with CAA requirements for SIP provisions. For 
those SIP provisions that the EPA has determined to be consistent with 
CAA requirements, however, the Agency is taking final action to deny 
the Petition and taking no further action with respect to those 
provisions. The specific SIP provisions at issue are discussed in 
detail in section IX of this document.
    As a result of its review of the issues raised by the Petition, the 
EPA is also through this action clarifying, reiterating and updating 
its SSM Policy to make certain that it provides comprehensive and up-
to-date guidance to air agencies concerning SIP provisions to address 
emissions during SSM events, consistent with CAA requirements. With 
respect to automatic exemptions from emission limitations in SIPs, the 
EPA's longstanding interpretation of the CAA is that such exemptions 
are impermissible because they are inconsistent with the fundamental 
requirements of the CAA. The EPA has reiterated this point in numerous 
guidance documents and rulemaking actions and is reaffirming that 
interpretation in this final action. By exempting emissions that would 
otherwise constitute violations of the applicable emission limitations, 
such exemptions interfere with the primary air quality objectives of 
the CAA (e.g., attainment and maintenance of the NAAQS), undermine the 
enforcement structure of the CAA (e.g., the requirement that all SIP 
provisions be legally and practically enforceable by states, the EPA 
and parties with standing under the citizen suit provision), and 
eliminate the incentive for emission sources to comply at all times, 
not solely during normal operation (e.g., incentives to be properly 
designed, maintained and operated so as to minimize emissions of air 
pollutants during startup and shutdown or to take prompt steps to 
rectify malfunctions).
    The court's decision in Sierra Club v. Johnson concerning 
exemptions for SSM events in the EPA's own regulations has reemphasized 
the fact that emission limitations under the CAA are required to be 
continuous. The court held that this statutory requirement precludes 
emission limitations that would allow periods during which emissions 
are exempt. Moreover, from a policy perspective, the EPA notes that the 
existence of impermissible exemptions in SIP provisions has the 
potential to lessen the incentive for development of control strategies 
that are effective at reducing emissions during certain modes of source 
operation such as startup and shutdown, even while such strategies 
could become increasingly helpful for various purposes, including 
attaining and maintaining the NAAQS. The issue of automatic exemptions 
for SSM events in SIP provisions is discussed in more detail in section 
VII.A of this document.
    With respect to discretionary exemptions from emission limitations 
in SIPs, the EPA also has a longstanding interpretation of the CAA that 
prohibits ``director's discretion'' provisions in SIPs if they provide 
unbounded discretion to allow what would amount to a case-specific 
revision of the SIP

[[Page 33875]]

without meeting the statutory requirements of the CAA for SIP 
revisions. In particular, the EPA interprets the CAA to preclude SIP 
provisions that provide director's discretion authority to create 
discretionary exemptions for violations when the CAA would not allow 
such exemptions in the first instance. As with automatic exemptions for 
excess emissions during SSM events, discretionary exemptions for such 
emissions interfere with the primary air quality objectives of the CAA, 
undermine the enforcement structure of the CAA and eliminate the 
incentive for emission sources to minimize emissions of air pollutants 
at all times, not solely during normal operations. Through this action, 
the EPA is reiterating its interpretation of the provisions of the CAA 
that preclude unbounded director's discretion provisions in SIPs. The 
EPA is also explaining two ways in which air agencies may elect to 
correct a director's discretion type of deficiency. The issue of 
director's discretion in SIP provisions applicable to SSM events is 
discussed in more detail in section VII.C of this document.
    With respect to enforcement discretion provisions in SIPs, the EPA 
also has a longstanding interpretation of the CAA that SIPs may contain 
such provisions concerning the exercise of discretion by the air 
agency's own personnel, but such provisions cannot bar enforcement by 
the EPA or by other parties through a citizen suit.\69\ In the event 
such a SIP provision could be construed by a court to preclude EPA or 
citizen enforcement, that provision would be at odds with fundamental 
requirements of the CAA pertaining to enforcement. Such provisions in 
SIPs can interfere with effective enforcement by the EPA and the public 
to assure that sources comply with CAA requirements, and this 
interference is contrary to the fundamental enforcement structure 
provided in CAA sections 113 and 304. The issue of enforcement 
discretion in SIP provisions applicable to SSM events is discussed in 
more detail in section VII.D of this document.
---------------------------------------------------------------------------

    \69\ See, e.g., 1983 SSM Guidance at Attachment p. 2.
---------------------------------------------------------------------------

    The EPA has evaluated the concerns expressed by the Petitioner with 
respect to each of the identified SIP provisions and has considered the 
specific remedy sought by the Petitioner. Through evaluation of 
comments on the February 2013 proposal and the SNPR, the EPA has taken 
into account the perspective of other stakeholders concerning the 
proper application of the CAA and the Agency's preliminary evaluation 
of the specific SIP provisions identified in the Petition. In many 
instances, the EPA has concluded that the Petitioner's analysis is 
correct and that the provision in question is inconsistent with CAA 
requirements for SIPs. For those SIP provisions, the EPA is granting 
the Petition and is simultaneously making a finding of substantial 
inadequacy and issuing a SIP call to the affected state to rectify the 
specific SIP inadequacy. In other instances, however, the EPA disagrees 
with the Petitioner's analysis of the provision, in some instances 
because the analysis applied to provisions that have since been 
corrected in the SIP. For those provisions, the EPA is therefore 
denying the Petition and taking no further action. In summary, the EPA 
is granting the Petition in part, and denying the Petition in part, 
with respect to all of the specific existing SIP provisions for which 
the Petitioner requested a remedy. The EPA's evaluation of each of the 
provisions identified in the Petition and the basis for the final 
action with respect to each provision is explained in detail in section 
IX of this document.

D. Response to Comments Concerning the CAA Requirements for SIP 
Provisions Applicable to SSM Events

    The EPA received numerous comments, both supportive and adverse, 
concerning the Agency's decision to propose action on the Petition with 
respect to the overarching issues raised by the Petitioner. A number of 
these comments also raised important issues concerning the rights of 
citizens to petition their government, the process by which the EPA 
evaluated the issues raised in the Petition and the relative 
authorities and responsibilities of states and the EPA under the CAA. 
Many commenters raised the same conceptual issues and arguments. For 
clarity and ease of discussion, the EPA is responding to these 
overarching comments, grouped by topic, in this section of this 
document. The responses to more specific substantive issues raised by 
commenters on the EPA's interpretation of the CAA in the SSM Policy 
appear in other sections of this document that focus on particular 
aspects of this action.
    1. Comments that the EPA should not have responded to the petition 
for rulemaking or that the EPA was wrong to do so.
    Comment: Some commenters opposed the EPA's proposed action on the 
Petition in the February 2013 proposal entirely and alleged that it is 
``sue-and-settle rulemaking'' or ``regulation by litigation.'' 
Commenters stated that the ``proposed rule and corresponding aggressive 
deadline schedule stem from'' a settlement of litigation brought by 
Sierra Club to respond to the Petition.
    Some commenters expressed concern that the EPA's proposed action 
was made in response to a settlement agreement, through a process that, 
the commenters alleged, did not permit any opportunity for 
participation by affected parties. Other commenters, believing that the 
EPA's proposed action was taken to fulfill a consent decree obligation, 
argued that consent decree deadlines ``often do not allow EPA enough 
time to write quality regulations'' or would not allow ``opportunity to 
properly research and investigate the effect of State SSM provisions or 
the State's ability to meet the NAAQS, or to determine whether the SSM 
provisions are somehow inconsistent with the CAA.'' The commenters 
alleged that the process ``bypasses the traditional rulemaking concepts 
of transparency and effective public participation'' and ``sidesteps 
the proper rulemaking channels and undercuts meaningful opportunities 
for those affected by the proposed rule to develop and present evidence 
that would support a competing and fully informed viewpoint on the 
substantive issues during the rulemaking process.''
    Response: The EPA believes that these comments reflect fundamental 
misunderstandings about this action. This is a rulemaking in which the 
EPA is taking action to respond to a petition for rulemaking, and it 
has undergone a full notice-and-comment rulemaking process as provided 
for in the CAA. In the February 2013 proposal, the EPA proposed to take 
action on the Petition. Under the CAA, the APA and the U.S. 
Constitution, citizens have the right to petition the government for 
redress. For example, the APA provides that ``[e]ach agency shall give 
an interested person the right to petition for the issuance, amendment, 
or repeal of a rule.'' \70\ When citizens file a petition for 
rulemaking, they are entitled to a response to such petition--whether 
that response is to grant the petition, to deny the petition, or to 
partially grant and partially deny the petition as has occurred in this 
rulemaking action.
---------------------------------------------------------------------------

    \70\ 5 U.S.C. 553(e).
---------------------------------------------------------------------------

    Some of these commenters expressed concern that the EPA's action on 
the Petition was the result of the Agency's obligations under a consent 
decree or settlement agreement and that this fact in some way 
invalidates the substantive action. First, the EPA notes that the 
action was undertaken not in response to a consent decree but rather in

[[Page 33876]]

response to a settlement agreement. Second, the EPA notes that this 
settlement agreement was entered into by the Agency and the Sierra Club 
in order to resolve allegations that the EPA was not correctly 
evaluating and acting upon SIP submissions from states. In particular, 
the Sierra Club claimed that the EPA was illegally ignoring existing 
deficiencies in the SIPs of many states, including existing allegedly 
deficient provisions concerning the treatment of excess emissions 
during SSM events, when acting on certain SIP submissions. As a result, 
the Sierra Club alleged, the EPA was acting in contravention of its 
obligations under the CAA and various consent decrees and thus should 
be held in contempt for failure to address these issues. In order to 
resolve these allegations, the EPA agreed only to take action on a 
petition for rulemaking and to take the action that it deemed 
appropriate after evaluation of the allegations in the petition. The 
terms of the settlement agreement underwent public comment and are a 
matter of public record and are in the docket for this rulemaking.\71\
---------------------------------------------------------------------------

    \71\ See Settlement Agreement executed November 30, 2011, in the 
rulemaking docket at EPA-HQ-OAR-2012-0322-0039.
---------------------------------------------------------------------------

    The EPA does not enter into settlement agreements lightly, nor does 
the EPA enter into settlement agreements without following the full 
public process required by CAA section 113(g), which the Agency 
followed in this case.\72\ The EPA solicited comment on the draft 
settlement agreement as required by section 113(g). In no case does the 
EPA enter into a settlement agreement that has not been officially 
reviewed not only by the Agency but also by the Department of Justice. 
Thus, contrary to the commenters' implications, this rulemaking is the 
result of an appropriate settlement agreement that did undergo public 
comment and is legitimate.
---------------------------------------------------------------------------

    \72\ See ``Proposed Settlement Agreement, Clean Air Act Citizen 
Suit'' (notice of proposed settlement agreement; request for public 
comment), 76 FR 54465 (September 1, 2011).
---------------------------------------------------------------------------

    In acting on the Petition the EPA has followed all steps of a 
notice-and-comment rulemaking, as governed by applicable statutes, 
regulations and executive orders, including a robust process for public 
participation. When the EPA initially proposed to take action on the 
Petition, in February 2013, it simultaneously solicited public comment 
on all aspects of its proposed response to the issues in the Petition 
and in particular on its proposed action with respect to each of the 
specific existing SIP provisions identified by the Petitioner as 
inconsistent with the requirements of the CAA. In response to requests, 
the EPA extended the public comment period for this proposal to May 13, 
2013, which is 80 days from the date the proposed rulemaking was 
published in the Federal Register and 89 days from the date the 
proposed rulemaking was posted on the EPA's Web site.\73\ The EPA 
deemed this extension appropriate because of the issues raised in the 
February 2013 proposal. The EPA also held a public hearing on March 12, 
2013. In response to this proposed action, the EPA received 
approximately 69,000 public comments, including over 50 comment letters 
from state and local governments, over 150 comment letters from 
industry commenters, over 25 comment letters from public interest 
groups and many thousands of comments from individual commenters. Many 
of these comment letters were substantial and covered numerous issues.
---------------------------------------------------------------------------

    \73\ See ``State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction; Notice of extension of public 
comment period,'' 78 FR 20855 (April 8, 2013), in the rulemaking 
docket at EPA-HQ-OAR-2012-0322-0126.
---------------------------------------------------------------------------

    Similarly, when the EPA ascertained that it was necessary to revise 
its proposed action on the Petition with respect to affirmative 
defenses in SIP provisions, the Agency issued the SNPR. In that 
supplemental proposal, in September 2014, the EPA fully explained the 
issues and took comment on the questions related to whether affirmative 
defense provisions are consistent with CAA requirements concerning the 
jurisdiction of courts in enforcement actions, and thus whether such 
provisions are consistent with fundamental CAA requirements for SIP 
provisions. The EPA provided a public comment period ending November 6, 
2014, which is 50 days from the date the SNPR was published in the 
Federal Register and 62 days from the date the SNPR was posted on the 
EPA's Web site. The EPA believes that the comment period was sufficient 
given that the subject of the SNPR was limited to the narrow issue of 
whether affirmative defense provisions are consistent with CAA 
requirements. The EPA also held a public hearing on the SNPR on October 
7, 2014 on the specific topic of the legitimacy of affirmative defense 
provisions in SIPs. In response to the SNPR, the EPA received over 
20,000 public comments, including at least 9 comment letters from 
states and local governments, over 40 comment letters from industry 
commenters, at least 6 comment letters from public interest groups, and 
many thousands of comments from individual commenters.
    2. Comments that EPA's action on the Petition violates 
``cooperative federalism.''
    Comment: Many commenters asserted that the EPA's proposed action on 
the Petition and the issuance of this SIP call violate principles of 
cooperative federalism because they impermissibly substitute the EPA's 
judgment for that of the states in the development of SIPs. This 
argument was raised by both air agency and industry commenters.
    These commenters described the relationship between states and the 
EPA with respect to SIPs in general. The commenters stated that 
Congress designed the CAA as a regulatory partnership between the EPA 
and the states, i.e., a relationship based on ``cooperative 
federalism.'' Under cooperative federalism, the commenters noted, the 
EPA has the primary responsibility to identify air pollutants that 
endanger the public health and welfare and to set national standards 
for those pollutants. By contrast, the states have primary 
responsibility to determine how to achieve those national standards by 
developing federally enforceable measures through SIPs. According to 
these commenters, however, once a state has made a SIP submission, the 
EPA's role is relegated exclusively to the ministerial function of 
reviewing whether the SIP submission will result in compliance with the 
NAAQS. Similarly, the commenters claim that when EPA is evaluating in 
the context of a SIP call whether a state's existing SIP continues to 
meet applicable CAA requirements, the only relevant question is whether 
the existing SIP will result in compliance with the NAAQS. Thus, the 
commenters claimed that by finding certain existing SIP provisions 
substantially inadequate because they are legally deficient to meet CAA 
requirements for SIP provisions, the EPA is usurping state authority 
under the cooperative-federalism structure of the CAA.
    To support this view, many commenters cited to the ``Train-Virginia 
line of cases,'' named for the U.S. Supreme Court case Train v. Natural 
Resources Defense Council, Inc.,\74\ and to the D.C. Circuit case 
Virginia v. EPA.\75\ The D.C. Circuit has described these cases as 
defining a ``federalism bar'' that constrains the EPA's authority with 
respect to evaluation of state SIPs

[[Page 33877]]

under section 110.\76\ Many commenters asserted that this federalism 
bar limits the EPA's oversight of state SIPs exclusively to whether a 
SIP will result in compliance with the NAAQS. The commenters evidently 
construe ``compliance with the NAAQS'' very narrowly to mean the SIP 
will factually result in attainment of the NAAQS, regardless of whether 
the SIP provisions in fact meet all applicable CAA requirements (e.g., 
the requirement that the SIP emission limitations be continuous and 
enforceable). Accordingly, most of these commenters selectively quoted 
or cited a passage in Train,\77\ and similar passages in circuit court 
opinions following Train, for the proposition that the EPA cannot issue 
a SIP call addressing the SIP provisions at issue in this SIP call 
action. Some of these commenters asserted that if the EPA were to 
finalize this action, the states would have ``nothing left'' of their 
discretion in SIP development and implementation in the future.
---------------------------------------------------------------------------

    \74\ 421 U.S. 60 (1975).
    \75\ 108 F.3d 1397 (D.C. Cir. 1997).
    \76\ See, e.g., Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. 
2000).
    \77\ See 421 U.S. at 79.
---------------------------------------------------------------------------

    Response: The EPA agrees that the CAA establishes a framework for 
state-federal partnership based on cooperative federalism. The EPA does 
not, however, agree with the commenters' characterization of that 
relationship. The EPA explained its view of the cooperative-federalism 
structure in the February 2013 proposal, especially the fact that under 
this principle both states and the EPA have authorities and 
responsibilities with respect to implementing the requirements of the 
CAA.\78\ The EPA believes that the commenters fundamentally 
misunderstand or inaccurately describe this action, as well as the 
```division of responsibilities' between the states and the federal 
government'' in section 110 that is described in the Train-Virginia 
line of cases.\79\
---------------------------------------------------------------------------

    \78\ See 78 FR 12459 at 12468; Background Memorandum at 1-3.
    \79\ See Virginia v. EPA, 108 F.3d 1397, 1407 (D.C. Cir. 1997) 
(quoting Train, 421 U.S. at 79).
---------------------------------------------------------------------------

    In CAA section 110(a)(1), Congress imposed the duty upon all states 
to have a SIP that provides for ``the implementation, maintenance, and 
enforcement'' of the NAAQS. In section 110(a)(2), Congress clearly set 
forth the basic SIP requirements that ``[e]ach such plan shall'' 
satisfy.\80\ By using the mandatory ``shall'' in section 110(a)(2), 
Congress established a framework of mandatory requirements within which 
states may exercise their otherwise considerable discretion to design 
SIPs to provide for attainment and maintenance of the NAAQS and to meet 
other CAA requirements. In other sections of the Act, Congress also 
imposed additional, more specific SIP requirements (e.g., the 
requirement in section 189 that states impose RACM-level emission 
limitations on sources located in PM2.5 nonattainment 
areas).
---------------------------------------------------------------------------

    \80\ Section 110(a)(2) (emphasis added); see EPA v. EME Homer 
City Generation, L.P., 134 S. Ct. 1584, 1600 (2014) (holding that 
section 110(a)(2) ``speaks without reservation'' regarding what 
``components'' a SIP `` `shall' include''); H. Rept. 101-490, at 217 
(calling the provisions of section 110(a)(2)(A) through (M) ``the 
basic requirements of SIPs'').
---------------------------------------------------------------------------

    In particular, this SIP call action concerns whether SIP provisions 
satisfy section 110(a)(2)(A), which requires that each SIP ``[shall] 
include enforceable emission limitations and other control measures, 
means, or techniques (including economic incentives such as fees, 
marketable permits, and auctions of emissions rights), as well as 
schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements of this chapter.''
    As explained in the February 2013 proposal, the automatic and 
discretionary exemptions for emissions from sources during SSM events 
at issue in this action fail to meet this most basic SIP requirement 
and are also inconsistent with the enforcement requirements of the CAA. 
Similarly, the enforcement discretion provisions at issue in this 
action that have the effect of barring enforcement by EPA or citizens 
fail to meet this requirement for enforceable emission limitations by 
interfering with the enforcement structure of the CAA as established by 
Congress. The affirmative defense provisions at issue are similarly 
inconsistent with the requirement that SIPs provide for enforcement of 
the NAAQS and also contravene the statutory jurisdiction of courts to 
determine liability and to impose remedies for violations of SIP 
requirements. Each of these types of deficient SIP provisions is thus 
inconsistent with legal requirements of the CAA for SIP provisions. 
Contrary to the claims of many commenters, the EPA has authority and 
responsibility to assure that a state's SIP provisions in fact comply 
with fundamental legal requirements of the CAA as part of the 
obligation to ensure that SIPs protect the NAAQS.\81\
---------------------------------------------------------------------------

    \81\ The EPA notes that many of the specific SIP elements 
required in section 110(a)(2) are not themselves stated in terms of 
attainment and maintenance of the NAAQS. Instead, these requirements 
are part of the SIP structure that Congress deemed necessary to 
support implementation, maintenance and enforcement of the NAAQS, as 
well as to meet other objectives such as protection of PSD 
increments and visibility.
---------------------------------------------------------------------------

    The Train-Virginia line of cases affirms the plain language of the 
Act--that in addition to providing generally for attainment and 
maintenance of the NAAQS, all state SIPs must satisfy the specific 
elements outlined in section 110(a)(2). Even setting aside that Train 
predated substantive revisions to the CAA that strengthened section 
110(a)(2)(A) in ways relevant here,\82\ the Train Court clearly stated 
that section 110(a)(2) imposes additional requirements for state 
submissions to be accepted, independent of the general obligation to 
meet the NAAQS. Many commenters on the February 2013 proposal 
selectively quoted or cited only portions of the following excerpt from 
Train, omitting or ignoring the portions emphasized here:
---------------------------------------------------------------------------

    \82\ For example, to the extent the Train Court was construing 
section 110(a)(2)'s emission limitation provision, it is important 
to note that while that statutory section before the Train Court 
required approvable SIPs to include certain controls ``necessary to 
insure compliance with [the] primary or secondary standards'' (i.e., 
the NAAQS), see CAA of 1970, Pub. L. 91-604, section 4(a), 84 Stat. 
1676, 1680 (December 31, 1970), that section now more broadly speaks 
of controls ``necessary or appropriate to meet the applicable 
requirements of this chapter'' (i.e., the CAA). Section 110(a)(2)(A) 
(emphasis added). Among the other relevant textual changes are the 
qualification that emission limitations and other controls be 
``enforceable,'' id.; a statutory definition of ``emission 
limitation'' that adds requirements not contemplated by Train, 
compare Section 302(k), with Train, 421 U.S. at 78; as well as a 
recharacterization of section 110(a)(2)'s emission limitation 
requirement from one bearing on whether ``[t]he Administrator shall 
approve such plan,'' see Pub. L. 91-604, section 4(a), 84 Stat. at 
1680, to a requirement expressly directed at what ``[e]ach plan 
shall'' include.

    The Agency is plainly charged by the Act with the responsibility 
for setting the national ambient air standards. Just as plainly, 
however, it is relegated by the Act to a secondary role in the 
process of determining and enforcing the specific, source-by-source 
emission limitations which are necessary if the national standards 
it has set are to be met. Under Sec.  110(a)(2), the Agency is 
required to approve a state plan which provides for the timely 
attainment and subsequent maintenance of ambient air standards, and 
which also satisfies that section's other general requirements. The 
Act gives the Agency no authority to question the wisdom of a 
State's choices of emission limitations if they are part of a plan 
which satisfies the standards of Sec.  110(a)(2) . . . . Thus [i.e., 
provided the state plan satisfies the basic requirements of Sec.  
110(a)(2)], so long as the ultimate effect of a State's choice of 
emission limitations is compliance with the national standards for 
ambient air, the State is at liberty to adopt whatever mix of 
emission limitations it deems best suited to its particular 
situation.\83\
---------------------------------------------------------------------------

    \83\ 421 U.S. at 79 (emphasis added) (footnotes omitted).


[[Page 33878]]


---------------------------------------------------------------------------

    When read in its entirety, without omitting the portions italicized 
above, Train clearly does not stand for the proposition that SIPs must 
be judged exclusively on the basis of whether they will ensure 
attainment and maintenance of the NAAQS. To the contrary, the Court 
made clear that approvable SIP submissions must not only provide for 
attainment and maintenance of the NAAQS but must also satisfy section 
110(a)(2)'s ``other general requirements . . . .'' \84\ Furthermore, 
while states have great latitude to select emission limitations, Train 
explained that those emission limitations must nevertheless be ``part 
of a plan which satisfies the standards of Sec.  110(a)(2) . . . .'' 
\85\ Finally, the EPA notes that many commenters quoting the final 
sentence excerpted above typically excluded the word ``Thus,'' which 
references the preceding sentence stating that SIPs must ``satisfy 
[section 110(a)(2)]'s other general requirements.'' \86\ By omitting 
the word ``thus,'' and the passages concerning the obligation of states 
to comply with section 110(a)(2) and other obligations of the CAA, the 
commenters disregard the critical point that the EPA has the statutory 
responsibility to assure that state SIPs meet the specific requirements 
of the CAA, not merely that they provide for attainment of the NAAQS 
regardless of whether they meet other mandatory legal requirements.\87\ 
In short, the Train Court did not hold that SIPs must merely provide 
for attainment of the NAAQS even under the 1970 Act, much less the text 
of the CAA applicable today. To the contrary, the U.S. Supreme Court 
indicated that approvable state plans were also required to meet other 
legal specifications of the CAA for SIPs such as those in section 
110(a)(2) and that the EPA's responsibility is to determine whether 
they do so. The EPA's own obligations with respect to evaluating SIPs 
under sections 110(k)(3), 110(l) and 193 continue to provide this 
authority and responsibility today.
---------------------------------------------------------------------------

    \84\ See id. (emphasis added).
    \85\ See id. The EPA notes that section 110(a)(2) and other 
sections relevant to SIPs in fact contain numerous procedural and 
substantive requirements that air agencies must meet. Section 110(a) 
is not composed of a single sentence that directs states merely to 
attain the NAAQS; it is replete with legal requirements applicable 
to SIPs that help to assure that a SIP will successfully meet that 
objective.
    \86\ See id.
    \87\ As a related point, the EPA notes that commenters claiming 
that the proposed SIP call was a violation of cooperative federalism 
likewise typically did not address the existence or significance of 
sections 110(k), 110(l) and 193. All of these provisions indicate 
that the EPA has statutory authority and responsibility to approve 
or disapprove SIP submissions, based upon whether they meet 
applicable requirements of the CAA. The EPA fully explained its 
views concerning its authority and responsibility under these 
provisions in the February 2013 proposal. See 78 FR 12459 at 12471, 
12477-78, 12483-89; Background Memorandum at 2-3.
---------------------------------------------------------------------------

    After Train, one of the cases most frequently cited by commenters 
for its discussion of cooperative federalism was the D.C. Circuit's 
decision in EME Homer City Generation, L.P. v. EPA, a case since 
overturned by the U.S. Supreme Court.\88\ In that case arising under 
section 110(a)(2), the D.C. Circuit vacated the EPA's Cross-State Air 
Pollution Rule for two reasons, one being related to statutory 
interpretation of section 110(a)(2)(D)(i), the other being ``a second, 
entirely independent problem'' based on the EPA's purported overstep of 
the federalism bar identified in the Train-Virginia line of cases.\89\ 
After recounting a list of decisions that recognize the cooperative-
federalism structure of the CAA, the D.C. Circuit concluded that even 
though states have the ``primary responsibility'' for implementing the 
NAAQS, in this case the states had no responsibility to address 
interstate transport until the EPA first quantified the obligations of 
the states. The dissent described the majority's application of the 
Train-Virginia cases as ``a redesign of Congress's vision of 
cooperative federalism in implementing the CAA . . . .'' \90\ The 
commenters approvingly cited to the D.C. Circuit's EME Homer City 
decision, evidently to illustrate the importance of states' role under 
section 110. That states are given the first opportunity to develop a 
SIP that complies with section 110 is not in dispute. What is in 
dispute are the authority and the responsibility of the EPA to take 
action when states fail to comply with all of the requirements for SIP 
provisions under the CAA, whether that requirement is to address 
interstate transport or to meet other specific legal requirements of 
the Act applicable to SIP provisions.
---------------------------------------------------------------------------

    \88\ 696 F.3d 7, 29 (D.C. Cir. 2012) rev'd, 134 S. Ct. 1584 
(2014).
    \89\ Id. at 28.
    \90\ Id. at 38 (Rogers, J., dissenting).
---------------------------------------------------------------------------

    The U.S. Supreme Court reversed the EME Homer City decision in June 
2014,\91\ rendering suspect the D.C. Circuit's interpretation of the 
Train-Virginia line of cases, as well as rendering suspect the 
commenters' even broader characterization of that interpretation as per 
se authorizing the states to create provisions such as the SSM 
exemptions and affirmative defenses at issue in this SIP call. The U.S. 
Supreme Court held that the touchstone for identifying the division of 
responsibility between the EPA and the states is the text of section 
110(a)(2) itself.\92\ Although this SIP call involves different 
requirements of section 110(a)(2) than the one at issue in EME Homer 
City--there, the interstate transport obligations of 
110(a)(2)(D)(i)(I)--the Court expressly held that ``[n]othing in the 
Act differentiates the Good Neighbor Provision from the several other 
matters a State must address in its SIP.'' \93\ After the U.S. Supreme 
Court's ruling, the EPA's role under section 110's cooperative-
federalism framework--as the agency charged with reasonably 
interpreting the fundamental requirements of section 110(a)(2), and 
applying those reasonably interpreted requirements to state SIPs--
cannot reasonably be in doubt.\94\
---------------------------------------------------------------------------

    \91\ See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014).
    \92\ Id. at 1600-01.
    \93\ Id. at 1601 (citing, inter alia, section 110(a)(2)).
    \94\ See id. at 1593 (citing Chevron, U.S.A., Inc. v. Natural 
Res. Def. Council, Inc., 467 U.S. 837 (1984)). See, e.g., Oklahoma 
v. EPA, 723 F.3d 1201, 1208 (10th Cir. 2013), cert. denied, 134 S. 
Ct. 2662 (2014) (applying Chevron to uphold EPA's disapproval of a 
SIP for noncompliance with regional haze requirements in section 
110(a)(2)(J)); North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013), 
cert. denied, 134 S. Ct. 2662 (2014) (applying Chevron to uphold 
EPA's disapproval of a SIP for noncompliance with interstate 
visibility requirements in section 110(a)(2)(D)(i)(II)); Luminant 
Generation v. EPA, 714 F.3d 841, 856 (5th Cir. 2013), cert. denied, 
134 S. Ct. 387 (2013); Mont. Sulphur & Chem. Co. v. United States 
EPA, 666 F.3d 1174, 1180, 1189 (9th Cir. 2012), cert. denied, 133 S. 
Ct. 409 (2012) (``The Clean Air Act gives the EPA significant 
national oversight over air quality standards, to be exercised 
pursuant to statutory specifications, and provides EPA with 
regulatory discretion in key respects relevant to SIP calls and 
determinations about the attainment of the NAAQS''); Mich. Dep't of 
Envtl. Quality v. Browner, 230 F.3d 181, 184-85 (6th Cir. 2000) 
(``Although states are given broad authority to design programs, the 
EPA has the final authority to determine whether a SIP meets the 
requirements of the CAA.'').
---------------------------------------------------------------------------

    The touchstone of the cooperative-federalism concept outlined in 
the Train-Virginia line of cases is that, under the authority of 
section 110, the EPA may not legally or functionally require a state to 
adopt a specific control measure in its SIP in response to a SIP 
call.\95\ On this point, the DC Circuit's opinion in EME Homer City was 
largely in line with Train, Virginia, and other DC Circuit cases. In 
that decision, the court described the Train-Virginia federalism bar as 
prohibiting the EPA ``from using the SIP process to adopt specific 
control measures.'' \96\ The EME Homer City court did not more broadly 
hold that section 110(a)(2) imposes no independent limits on state 
discretion

[[Page 33879]]

by requiring the states to meet legal requirements for SIP provisions, 
or that the EPA is prohibited from either interpreting 110(a)(2)'s 
basic requirements or reviewing state SIPs for compliance with those 
requirements. Accordingly, the EPA believes that to the extent that the 
DC Circuit's EME Homer City decision is relevant to this action, the 
decision in fact supports the basic principle that the EPA has 
authority and responsibility to assure that states comply with legal 
requirements of the CAA applicable to SIP provisions.
---------------------------------------------------------------------------

    \95\ 78 FR 12459 at 12489 & nn.89-90.
    \96\ See EME Homer City Generation, L.P. v. EPA, 696 F.3d at 29 
(citing Michigan, 213 F.3d at 687; Virginia, 108 F.3d at 1410) 
(emphasis added).
---------------------------------------------------------------------------

    This view of what cooperative federalism prohibits is consistent 
with Train, where the U.S. Supreme Court stated that the EPA ``is 
relegated by the [1970] Act to a secondary role in the process of 
determining and enforcing the specific, source-by-source emission 
limitations which are necessary if the national standards it has set 
are to be met.'' \97\ It is also consistent with the Virginia decision, 
where the DC Circuit held that the EPA cannot under section 110 
functionally require states to ``adopt[] particular control measures'' 
in a SIP but must rather ensure that states have a meaningful choice 
among alternatives.\98\ Moreover, it is consistent with the court's 
view in Michigan v. EPA,\99\ a case involving a SIP call, in which the 
DC Circuit interpreted and applied those precedents:
---------------------------------------------------------------------------

    \97\ 421 U.S. at 79 (emphasis added).
    \98\ Virginia v. EPA, 108 F.3d 1397, 1415 (D.C. Cir. 1997) 
(holding that functionally, in that case, ``EPA's alternative is no 
alternative at all''); see also Appalachian Power Co. v. EPA, 249 
F.3d 1032, 1047 (D.C. Cir. 2001) (citing Virginia, 108 F.3d at 1406, 
1410) (``We did not suggest [in Virginia] that under Sec.  110 
states may develop their plans free of extrinsic legal constraints. 
Indeed, SIP development . . . commonly involves decisionmaking 
subject to various legal constraints.'').
    \99\ 213 F.3d 663 (D.C. Cir. 2000).

    Given the Train and Virginia precedent, the validity of the NOx 
budget program underlying the SIP call depends in part on whether 
the program in effect constitutes an EPA-imposed control measure or 
emission limitation triggering the Train-Virginia federalism bar: In 
other words, on whether the program constitutes an impermissible 
source-specific means rather than a permissible end goal. However, 
the program's validity also depends on whether EPA's budgets allow 
the covered states real choice with regard to the control measure 
options available to them to meet the budget requirements.\100\
---------------------------------------------------------------------------

    \100\ Id. at 687 (emphasis added).

    Clearly, in this SIP call the EPA is leaving the states the freedom 
to correct the inappropriate provisions in any manner they wish as long 
as they comply with the constraints of section 110(a)(2).
    Finally, this view is consistent with Appalachian Power Co. v. EPA, 
where the DC Circuit reiterated that Virginia ``disapproved the EPA's 
plan to reject SIPs that did not incorporate particular limits upon 
emissions from new cars.'' \101\ The specific controls discussed in 
these cases are quite different, both as a legal matter and 
functionally, from the statutory constraints on the states' exercise of 
discretion that the EPA is interpreting and applying in this 
action.\102\
---------------------------------------------------------------------------

    \101\ 249 F.3d 1032, 1047 (D.C. Cir. 2001) (citing Virginia, 108 
F.3d at 1410) (emphasis added).
    \102\ See id.
---------------------------------------------------------------------------

    As explained in the February 2013 proposal, in this action the EPA 
is not requiring states to adopt any particular emission limitation or 
to impose a specific control measure in a SIP provision; the EPA is 
merely directing the states to address the fundamental statutory 
requirements that all SIP provisions must meet.\103\ This SIP call 
outlines the principles and framework for how states can revise the 
existing deficient SIP provisions to meet a permissible end goal 
\104\--compliance with the Act. In so doing, the EPA is merely acting 
pursuant to its supervisory role under the CAA's cooperative-federalism 
framework, to ensure that SIPs satisfy those broad requirements that 
section 110(a)(2) mandates SIPs ``shall'' satisfy. With respect to 
section 110(a)(2)(A), this means that a SIP must at least contain 
legitimate, enforceable emission limitations to the extent they are 
necessary or appropriate ``to meet the applicable requirements'' of the 
Act. SIPs cannot contain unbounded director's discretion provisions 
that functionally subvert the requirements of the CAA for approval and 
revision of SIP provisions. Likewise, SIPs cannot have enforcement 
discretion provisions or affirmative defense provisions that contravene 
the fundamental requirements concerning the enforcement of SIP 
provisions. Accordingly, the EPA believes that this SIP call fully 
accords with the federal-state partnership outlined in section 110, by 
providing the states meaningful latitude when developing SIP 
submissions, while ```nonetheless subject[ing] the States to strict 
minimum compliances requirements' and giv[ing] EPA the authority to 
determine a state's compliance with those requirements.'' \105\
---------------------------------------------------------------------------

    \103\ 78 FR 12459 at 12489.
    \104\ See, e.g., Michigan, 213 F.3d at 687.
    \105\ Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. 2000) 
(quoting Union Elec. Co. v. EPA, 427 U.S. 246, 256-57 (1976)); see 
Mont. Sulphur & Chem. Co. v. United States EPA, 666 F.3d 1174, 1181 
(9th Cir. 2012), cert. denied, 133 S. Ct. 409 (2012) (``The Clean 
Air Act gives the EPA significant national oversight power over air 
quality standards, to be exercised pursuant to statutory 
specifications, and provides the EPA with regulatory discretion in 
key respects relevant to SIP calls and determinations about the 
attainment of NAAQS.'').
---------------------------------------------------------------------------

    The EPA emphasizes that this action also allows states ``real 
choice'' concerning their SIP provisions, so long as the provisions are 
consistent with applicable requirements. For example, this SIP call 
does not establish any specific, source-by-source limitations. To the 
contrary, as described in section VII.A of this document, emission 
limitations meeting the requirements of section 110(a)(2)(A) may take a 
variety of forms. Under section 110(a)(2)(A), states are free to 
include in their SIPs whatever emission limitations they wish, provided 
the states comply with applicable legal requirements. Among those 
requirements are that an emission limitation in a SIP must be an 
``emission limitation'' as defined in section 302(k) and that all 
controls--emission limitations and otherwise--must be sufficiently 
``enforceable'' to ensure compliance with applicable CAA requirements. 
The SSM provisions at issue in this SIP call subvert both of these 
legal requirements.
    3. Comments that the EPA should expand the rulemaking to include 
additional SIP provisions that the commenters consider deficient with 
respect to SSM issues.
    Comment: Some commenters requested that the EPA expand its February 
2013 proposed action to include additional SIP provisions that the 
commenters consider deficient with respect to SSM issues. Specifically, 
commenters identified additional SIP provisions in Wisconsin (a state 
not identified by the Petitioner) and New Hampshire (a state for which 
the Petitioner did specifically identify other SIP provisions).
    One commenter argued that ``[i]t would substantially ease the 
administrative burden on EPA as well on public commenters'' and 
``ensure that companies in all states are treated equally'' if the EPA 
were to include ``all SIPs with faulty SSM provisions in [a] 
consolidated SIP call.'' Another commenter noted that ``the interests 
of regulatory efficiency will be served'' by adding additional SIP 
provisions to the SIP call because ``all changes required by the policy 
underlying this rulemaking'' to state SIPs would then be made at once.
    Response: The EPA acknowledges the requests made by the commenters 
concerning additional SIP provisions that may be inconsistent with CAA

[[Page 33880]]

requirements. The EPA also agrees with the points made by the 
commenters concerning the potential benefits of expanding the 
rulemaking to include evaluation of additional provisions. However, in 
the February 2013 proposal the EPA elected to review the specific SIP 
provisions identified by the Petitioner in the SIPs of only the 39 
states (and jurisdictions) identified by the Petitioner to determine 
whether they were consistent with the CAA as interpreted in the EPA's 
SSM Policy as requested in the Petition.\106\ Although there may be 
additional SIP provisions that are deficient, the EPA determined that 
it would first focus its review on the SIP provisions for which 
possible deficiencies had already been identified by the 
Petitioner.\107\ Accordingly, the February 2013 proposal addressed only 
those states identified in the Petition, in order to use EPA and state 
resources most efficiently.
---------------------------------------------------------------------------

    \106\ February 2013 proposal, 78 FR 12459 (February 22, 2013).
    \107\ The SIP provisions for which the EPA proposed SIP calls in 
its February 2013 proposal were further limited to those for which 
the Petitioner specifically requested action, with three exceptions; 
the EPA proposed SIP calls for additional SIP provisions in Ohio, 
North Dakota and West Virginia (one each), for reasons explained in 
section IX of the February 2013 proposal.
---------------------------------------------------------------------------

    With respect to the specific additional SIP provisions identified 
by the commenters on the February 2013 proposal, the EPA also notes 
that it cannot take final action on any additional SSM-related SIP 
provisions without first providing an opportunity for public notice and 
comment with respect to those additional SIP provisions. The EPA agrees 
that an important objective of its action on the Petition is to provide 
complete, comprehensive and up-to-date guidance to all air agencies 
concerning SIP provisions that apply to emissions during SSM events. 
The EPA is endeavoring to do this by responding to the Petition fully 
and by updating its interpretation of the CAA in the SSM Policy to 
reflect the relevant statutory requirements and recent court decisions. 
All states should feel free to apply this revised guidance in reviewing 
their own SIP provisions and revising them as appropriate. The EPA may 
address other SSM-related provisions that may be inconsistent with 
EPA's SSM Policy and the CAA in a later separate notice-and-comment 
action(s). The EPA has authority to address those provisions 
separately.\108\
---------------------------------------------------------------------------

    \108\ The EPA notes that it has received a separate petition for 
rulemaking requesting it to evaluate SIP provisions in the State of 
Wisconsin. The EPA is not taking action on that separate petition as 
part of this action but will take action on that petition in a 
future rulemaking.
---------------------------------------------------------------------------

    The EPA notes that with respect to the issue of affirmative 
defenses in SIP provisions, the Agency determined that it was necessary 
to amend its February 2013 proposal to take into consideration a 
subsequent court decision concerning the legal basis for such 
provisions. As explained in the SNPR and also in section IV of this 
document, the DC Circuit in the NRDC case decided that the CAA 
precludes any affirmative defense provisions that would operate to 
limit a court's jurisdiction or discretion to determine the appropriate 
remedy in an enforcement action. Thus, the EPA issued the SNPR to 
address this development in the law. Because of recent EPA actions and 
court decisions on this subject, the Agency determined that it was 
important to address not only the affirmative defense provisions 
identified in the Petition but also affirmative defense provisions that 
the EPA independently identified in six states' SIPs.\109\ The SNPR was 
explicitly limited to the narrow concern of affirmative defense 
provisions, which was one of the types of issued specifically 
identified by the Petitioner. The EPA issued the SNPR with the same 
intention as that with which it issued the February 2013 proposal--so 
that the final action would provide guidance that reflects the EPA's 
updated interpretation of the CAA and would respond to the Petitioner's 
request that ``EPA find that all SIPs containing an SSM exemption or a 
provision that could be interpreted to affect EPA or citizen 
enforcement are substantially inadequate to comply with the 
requirements of the Clean Air Act and issue a call for each of the 
states with such a SIP to revise it in conformity with the requirements 
of the Act or otherwise remedy these defective SIPs.'' \110\ The EPA 
included these six states' affirmative defense provisions in order to 
provide comprehensive guidance to all states concerning affirmative 
defense provisions in SIPs and to avoid confusion that may arise due to 
recent rulemakings and court decisions relevant to such provisions 
under the CAA.
---------------------------------------------------------------------------

    \109\ Of these six states in which the EPA independently 
identified affirmative defense provisions, two states (California 
and Texas) were not identified in the Petition. For another two of 
these states (New Mexico and Washington), the EPA had already 
reviewed other affirmative defense provisions specifically 
identified in the Petition and had already proposed SIP calls in the 
February 2013 proposal. For the other two states (South Carolina and 
West Virginia), the EPA had already reviewed and proposed SIP calls 
for provisions that were identified by the Petitioner but that did 
not include affirmative defenses.
    \110\ Petition at 14.
---------------------------------------------------------------------------

    The SIP call promulgated by the EPA in this action applies only to 
the particular SIP provisions identified in this document, and the 
scope of the SIP call for each state is limited to those provisions. 
However, if states of their own accord wish to revise SIP provisions, 
beyond those identified in this SIP call, that they believe are 
inconsistent with the SSM Policy and the CAA, the EPA will review and 
act on those SIP revisions in accordance with CAA sections 110(k), 
110(l) and 193.
    4. Comments that the EPA should create regulatory text in 40 CFR 
part 51 to forbid SSM exemptions in SIP provisions if the CAA precludes 
them.
    Comment: Commenters argued that the EPA, before issuing a SIP call 
requiring states to revise SIP provisions containing exemptions for 
emissions during SSM events, should first have promulgated specific 
regulations articulating that such exemptions are precluded by the CAA. 
According to commenters, taking this approach would have given states 
more certainty and clarity and provided states with more time to 
develop SIP revisions consistent with those regulatory requirements. 
Commenters also asserted that it is not appropriate for the EPA to 
proceed with a SIP call to states without prior rulemaking to create 
regulatory provisions explicitly prohibiting SSM exemptions in SIPs, 
given that the Agency has previously approved the SIP provisions at 
issue.
    Response: The EPA disagrees with the commenters' argument that the 
Agency must first promulgate regulations to make clear that exemptions 
for emissions during SSM events are not permissible in SIPs, prior to 
issuing this SIP call. The EPA likewise disagrees with the implication 
that its authority to promulgate a SIP call is restricted only to those 
issues for which there is specifically applicable regulatory text, as 
opposed to requirements related to statutory provisions, court 
decisions or other legal or factual bases for a determination that an 
existing SIP provision is substantially inadequate to meet CAA 
requirements. The EPA disagrees with the commenters for several 
reasons.
    First, the CAA does not impose a general obligation upon the Agency 
to promulgate regulations applicable to all SIP requirements. Although 
the EPA has elected to promulgate regulations to address a broad 
variety of issues relevant to SIPs,\111\ the Agency is not obligated to 
promulgate regulations

[[Page 33881]]

unless there is a specific statutory mandate that it do so.\112\ In 
addition, the EPA has authority under section 301 to promulgate such 
regulations as it deems necessary to implement the CAA (e.g., to fill 
statutory gaps left by Congress for the EPA to fill or to clarify 
ambiguous statutory language). With respect to SIP requirements, 
however, the EPA has elected to promulgate regulations or to issue 
guidance to states to address different requirements, as 
appropriate.\113\ In short, there is no specific statutory requirement 
that the EPA promulgate regulations with respect to the types of 
deficiencies in SIP provisions at issue in this action prior to issuing 
a SIP call.
---------------------------------------------------------------------------

    \111\ See, generally, 40 CFR part 51 (including regulations 
applicable to many aspects of SIPs.
    \112\ See, e.g., CAA section 169A(a)(4) (requiring the EPA to 
promulgate regulations governing the requirements relevant to SIP 
requirements for purposes of regional haze reduction).
    \113\ See, e.g., ``State Implementation Plans; General Preamble 
for the Implementation of Title I of the Clean Air Act Amendments of 
1990,'' 57 FR 13498 (April 16, 1992) (the ``General Preamble'' that 
continues to provide guidance recommendations to states for certain 
attainment plan requirements for various NAAQS); 40 CFR part 51, 
subpart Z (imposing regulatory requirements for certain attainment 
plan requirements for the 1997 PM2.5 NAAQS).
---------------------------------------------------------------------------

    Second, the EPA has historically elected to address the key issues 
relevant to this SIP call action in guidance. Through a series of 
guidance documents, issued in 1982, 1983, 1999 and 2001, the EPA has 
previously explained its interpretations of the CAA with respect to SIP 
provisions that contain automatic SSM exemptions, discretionary SSM 
exemptions, the exercise of enforcement discretion for SSM events and 
affirmative defenses for SSM events. Starting in the 1982 SSM Guidance, 
the EPA explicitly acknowledged that it had previously approved some 
SIP provisions related to emissions during SSM events that it should 
not have, because the provisions were inconsistent with requirements 
for SIPs. In addition, the EPA has in rulemakings applied its 
interpretation of the CAA with respect to issues such as exemptions for 
emissions during SSM events, and these actions have been approved by 
courts.\114\ Under these circumstances, the EPA does not agree that 
promulgation of generally applicable regulations was necessary to put 
states on notice of the Agency's interpretation of the CAA with respect 
to these issues, prior to issuance of a SIP call.
---------------------------------------------------------------------------

    \114\ See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) 
(upholding the ``NOX SIP Call'' to states requiring 
revisions to previously approved SIPs with respect to ozone 
transport and section 110(a)(2)(D)(i)(I)); ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011) (the 
EPA issued a SIP call to rectify SIP provisions dating back to 
1980).
---------------------------------------------------------------------------

    Finally, the EPA's authority under section 110(k)(5) is not 
limited, expressly or otherwise, solely to inadequacies related to 
regulatory requirements. To the contrary, section 110(k)(5) refers 
broadly to attainment and maintenance of the NAAQS, adequate mitigation 
of interstate transport and compliance with ``any requirement of'' the 
CAA. In addition, section 110(k)(5) specifically contemplates 
situations such as this one, ``whenever'' the EPA finds previously 
approved SIP provisions to be deficient. Nothing in the CAA requires 
the EPA to conduct a separate rulemaking clarifying its interpretation 
of the CAA prior to issuance of this SIP call. For the types of 
deficiencies at issue in this action, the EPA believes that the 
statutory requirements of the CAA itself and recent court decisions 
concerning those statutory provisions provide sufficient basis for this 
SIP call.
    For the foregoing reasons, the EPA disagrees that before requiring 
states to revise SIPs that contain provisions with SSM exemptions, the 
EPA first must promulgate regulations explicitly stating that such 
exemptions are impermissible under the CAA. In addition, the EPA notes 
that although it is not promulgating generally applicable regulations 
in this action, it is nonetheless revising its guidance in the SSM 
Policy through rulemaking and has thereby provided states and other 
parties the opportunity to comment on the Agency's interpretation of 
the CAA with respect to this issue.
    5. Comments that the EPA did not provide a sufficiently long 
comment period on the proposal in general or as contemplated in 
Executive Order 13563.
    Comment: A number of commenters argued that the comment period 
provided by the EPA for the February 2013 proposal was ``at odds with'' 
Executive Order 13563. The commenters alleged that the comment period 
was ``unconscionably short,'' even so short as to be ``arbitrary and 
capricious'' because, in order to provide comments, ``impacted States 
and industries must perform the data collection and analysis necessary 
to evaluate the need for the proposed rule and its impacts.'' Further, 
the commenters alleged, the ``EPA's failure and refusal to perform any 
technical analyses of the feasibility of source operations after the 
elimination of SSM provisions or the likely capital and operating costs 
of additional control equipment required to meet numeric standards 
during all operational periods has denied the States, the affected 
parties, and the public a meaningful opportunity to evaluate and 
comment upon the proposed rule.'' Finally, one commenter asserted that 
Executive Order 13563 requires that ``[b]efore issuing a notice of 
proposed rulemaking, each agency, where feasible and appropriate, shall 
seek the views of those who are likely to be affected.'' \115\ The 
commenter claimed that because the EPA allegedly ``failed to seek the 
views of those who are likely to be affected and those who are 
potentially subject to such rulemaking, EPA's actions ignore the 
requirements of the Executive Order.''
---------------------------------------------------------------------------

    \115\ See E.O. 13563 section 2(c).
---------------------------------------------------------------------------

    Response: The EPA disagrees that it has not provided sufficiently 
long comment periods to address the specific issues relevant to this 
action. As described in section IV.D.1 of this document, the EPA has 
followed all steps of a notice-and-comment rulemaking, as governed by 
applicable statutes, regulations and executive orders, including a 
robust process for public participation. When the EPA initially 
proposed to take action on the Petition, in February 2013, it 
simultaneously solicited public comment on all aspects of its proposed 
response to the issues in the Petition and in particular on its 
proposed action with respect to each of the specific existing SIP 
provisions identified by the Petitioner as inconsistent with the 
requirements of the CAA. In response to requests, the EPA extended the 
public comment period for this proposal to May 13, 2013, which is 80 
days from the date the proposed rulemaking was published in the Federal 
Register and 89 days from the date the proposed rulemaking was posted 
on the EPA's Web site.\116\ The EPA deemed this extension appropriate 
because of the issues raised in the February 2013 proposal. The EPA 
also held a public hearing on March 12, 2013. In response to this 
proposed action, the EPA received approximately 69,000 public comments, 
including over 50 comment letters from state and local governments, 
over 150 comment letters from industry commenters, over 25 comment 
letters from public interest groups and many thousands of comments from 
individual commenters. Many of these comment

[[Page 33882]]

letters were substantial and covered numerous issues.
---------------------------------------------------------------------------

    \116\ See ``State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction; Notice of extension of public 
comment period,'' 78 FR 20855 (April 8, 2013), in the rulemaking 
docket at EPA-HQ-OAR-2012-0322-0126.
---------------------------------------------------------------------------

    Similarly, when the EPA ascertained that it was necessary to revise 
its proposed action on the Petition with respect to affirmative 
defenses in SIP provisions, the Agency issued the SNPR. In that 
supplemental proposal, in September 2014, the EPA fully explained the 
issues and took comment on the questions related to whether affirmative 
defense provisions are consistent with CAA requirements concerning the 
jurisdiction of courts in enforcement actions, and thus whether such 
provisions are consistent with fundamental CAA requirements for SIP 
provisions. The EPA provided a public comment period ending November 6, 
2014, which is 50 days from the date the SNPR was published in the 
Federal Register and 62 days from the date the SNPR was posted on the 
EPA's Web site. The EPA believes that the comment period was sufficient 
given that the subject of the SNPR was limited to the narrow issue of 
whether affirmative defense provisions are consistent with CAA 
requirements. The EPA also held a public hearing on the SNPR on October 
7, 2014 on the specific topic of the legitimacy of affirmative defense 
provisions in SIPs. In response to the SNPR, the EPA received over 
20,000 public comments, including at least 9 comment letters from 
states and local governments, over 40 comment letters from industry 
commenters, at least 6 comment letters from public interest groups, and 
many thousands of comments from individual commenters.
    Executive Order 13563 provides that each agency should ``afford the 
public a meaningful opportunity to comment through the Internet on any 
proposed regulation, with a comment period that should generally be at 
least 60 days.'' \117\ The length of the Agency's comment period for 
the original proposed rulemaking well-exceeded this standard. The EPA 
also facilitated comment on the action by providing a full and detailed 
evaluation of the relevant issues in the February 2013 proposal, the 
background memorandum supporting the proposal and the SNPR.
---------------------------------------------------------------------------

    \117\ See E.O. 13563 section 2(b) (emphasis added).
---------------------------------------------------------------------------

    When considering whether an agency has provided for adequate public 
input, reviewing courts are generally most concerned with the overall 
adequacy of the opportunity to comment. This, in turn, typically 
depends on steps the agency took to notify the public of information 
that is important to this action. Comment period length is only one 
factor that courts consider in this analysis, and courts have regularly 
found that comment periods of significantly shorter length than the 80 
days provided here on the February 2013 proposal were reasonable in 
various circumstances.\118\ Given the nature of the issues raised by 
the Petition, the EPA believes that the comment period was appropriate 
and sufficient to allow for full analysis of the issues and preparation 
of comments. The number of comments received on the February 2013 
proposal, and the breadth of issues and level of detail provided by the 
commenters, both supportive and adverse, serve to support the EPA's 
view on this point.
---------------------------------------------------------------------------

    \118\ See, e.g., Omnipoint Corp. v. Fed. Commc'ns Comm'n, 78 
F.3d 620, 629 (D.C. Cir. 1996) (approving a 7-day comment period); 
Florida Power & Light Co. v. United States, 846 F.2d 765, 772 (D.C. 
Cir. 1988) (holding a 15-day comment period to not be unreasonable 
under the governing circumstances); Conn. Light & Power Co. v. NRC, 
673 F.2d 525, 534 (D.C. Cir. 1982) (holding 30 days not unreasonable 
in the particular situation); Am. Farm Bureau Fedn v. United States 
EPA, 984 F.Supp.2d 289, 333 (M.D. Pa. 2013) (holding that a 45-day 
comment period was adequate despite ``technical complexities of the 
regulations and issues raised'').
---------------------------------------------------------------------------

    The EPA also disagrees with respect to the claims of commenters 
that the comment period was insufficient because the EPA should provide 
time for commenters to evaluate and analyze fully the possible ultimate 
impacts of the SIP call upon particular sources, to determine what type 
of SIP revision by a state is appropriate in response to a SIP call, or 
to ascertain what specific new emission limitation or control measure 
requirement states should impose upon sources in such a future SIP 
revision. The EPA's action on the Petition concerning specific existing 
SIP provisions is focused upon whether those existing provisions meet 
fundamental legal requirements of the CAA for SIP provisions. The EPA 
is not required to provide a comment period for this action that allows 
states actually to determine which of the potential forms of SIP 
revision they may wish to undertake, or to complete those SIP 
revisions, as part of this rulemaking. The subsequent state and EPA 
rulemaking processes on the SIP revisions in response to this SIP call 
action will provide time for further evaluation of the issues raised by 
commenters.
    As explained in the February 2013 proposal, the EPA does not 
interpret section 110(k)(5) to require it to ``prove causation'' 
concerning what precise impacts illegal SIP provisions are having on 
CAA requirements, such as attainment and maintenance of the NAAQS and 
enforcement of SIP requirements.\119\ Nor is the EPA directing states 
to adopt a specific control measure in response to the SIP call; the 
decision as to how to revise the affected SIP provisions in response to 
the SIP call is left to the states. The state's response to the SIP 
call will be developed in future rulemaking actions at both the state 
and federal level which will similarly be subject to full notice-and-
comment proceedings. In electing to proceed by SIP call under section 
110(k)(5), rather than by error correction under section 110(k)(6), the 
EPA is providing affected states with the maximum time permitted by 
statute to determine how best to revise their SIP provisions, 
consistent with CAA requirements. During this process, the commenters 
and other stakeholders will have the opportunity to participate in the 
development of the SIP revision, including decisions such as how the 
state elects to revise the deficient SIP provisions (e.g., merely to 
eliminate an exemption for SSM events or to impose an alternative 
emission limitation applicable to startup and shutdown).
---------------------------------------------------------------------------

    \119\ This issue is addressed in more detail in section VIII.A.1 
of this document.
---------------------------------------------------------------------------

    The questions posed by the commenters about what specific emission 
limitations should apply during startup and shutdown events, what 
control measures will meet applicable CAA legal requirements, what 
control measures will be effective and cost-effective to meet 
applicable legal standards and other similar questions are exactly the 
sorts of issues that states will evaluate in the process of revising 
affected SIP provisions. Moreover, these are the same sorts of 
questions that the EPA will be evaluating when it reviews state SIP 
submissions made in response to the SIP call. The EPA is not required, 
by Executive Order 13563 or otherwise, to provide a comment period that 
would allow for all future actions in response to the SIP call to occur 
before issuing the SIP call. The EPA anticipates that the commenters 
will be able to participate actively in the actions that will happen in 
due course in response to this SIP call.
    Finally, the EPA disagrees that it did not adequately seek the 
views of potentially affected entities prior to issuance of the 
February 2013 proposal. The EPA alerted the public to the existence of 
the Petition by soliciting comment on the settlement agreement that 
obligated the Agency to act upon it, in accordance with CAA section 
113(g). Subsequently, EPA personnel communicated about the Petition and 
the issues it raised in various standing

[[Page 33883]]

meetings and conference calls with states and organizations that 
represent state and local air regulators.
    6. Comments that this action is not ``nationally applicable'' for 
purposes of judicial review.
    Comment: Commenters alleged that the SSM SIP call is not 
``nationally applicable'' for purposes of judicial review. One state 
commenter cited ATK Launch Systems for the proposition that the 
specific language of the regulation being challenged indicates whether 
an action is nationally or locally/regionally applicable. Because a SIP 
provision subject to this SIP call is state-specific, the commenter 
argued, it is of concern only for that state and thus the SIP call is a 
locally applicable action.\120\
---------------------------------------------------------------------------

    \120\ See ATK Launch Systems, Inc. v. EPA, 651 F.3d 1194 (10th 
Cir. 2011).
---------------------------------------------------------------------------

    Response: The EPA disagrees with the commenter that the SIP call is 
not a nationally applicable action. In this action, the EPA is 
responding to a Petition that requires the Agency to reevaluate its 
interpretations of the CAA in the SSM Policy that apply to SIP 
provisions for all states across the nation. In so doing, the EPA is 
reiterating its interpretations with respect to some issues (e.g., that 
SIP provisions cannot include exemptions for emissions during SSM 
events) and revising its interpretations with respect to others (e.g., 
so that SIP provisions cannot include affirmative defenses for 
emissions during SSM events). In addition to reiterating and updating 
its interpretations with respect to SIP provisions in general, the EPA 
is also applying its interpretations to specific existing provisions in 
the SIPs of 41 states. Through this action the EPA is establishing a 
national policy that it is applying to states across the nation. As 
with many nationally applicable rulemakings, it is true that this 
action also has local or regional effects in the sense that EPA is 
requiring 36 individual states to submit revisions to their SIPs. 
However, through this action the EPA is applying the same legal and 
policy interpretation to each of these states. Thus, the underlying 
basis for the SIP call has ``nationwide scope and effect'' within the 
meaning of section 307(b)(1) as explained by the EPA in the February 
2013 proposal. A key purpose of the CAA in channeling to the D.C. 
Circuit challenges to EPA rulemakings that have nationwide scope and 
effect is to minimize instances where the same legal and policy basis 
for decisions may be challenged in multiple courts of appeals, which 
instances would potentially lead to inconsistent judicial holdings and 
a patchwork application of the CAA across the country. We note that in 
the ATK Launch case cited by commenters, the U.S. Court of Appeals for 
the Tenth Circuit (Tenth Circuit) in fact transferred to the D.C. 
Circuit challenges to the designation of two areas in Utah that were 
part of a national rulemaking designating areas across the U.S. for the 
PM2.5 NAAQS. In transferring the challenges to the D.C. 
Circuit, the Tenth Circuit noted that the designations rulemaking 
``reached areas coast to coast and beyond'' and that the EPA had 
applied a uniform process and standard.\121\ Significantly, in support 
of its decision to transfer the challenges to the D.C. Circuit, the 
Tenth Circuit stated: ``The challenge here is more akin to challenges 
to so-called `SIP Calls,' which the Fourth and Fifth Circuits have 
transferred to the D.C. Circuit . . . Although each of the SIP Call 
petitions challenged the revision requirement as to a particular state, 
the SIP Call on its face applied the same standard to every state and 
mandated revisions based on that standard to states with non-conforming 
SIPs in multiple regions of the country.'' \122\
---------------------------------------------------------------------------

    \121\ Id., 651 F.3d at 1197.
    \122\ Id., 651 F.3d at 1199.
---------------------------------------------------------------------------

    7. Comments that the EPA was obligated to address and justify the 
potential costs of the action and failed to do so correctly.
    Comment: Several commenters alleged that the EPA has failed to 
address the costs associated with this rulemaking action appropriately 
and consistent with legal requirements. In particular, commenters 
alleged that the EPA is required to address costs of various impacts of 
this SIP call, including the costs that may be involved in changes to 
emissions controls or operation at sources and the costs to states to 
revise permits and revise SIPs in response to the SIP call.
    Commenters also alleged that the EPA has failed to comply with 
Executive Order 12291, Executive Order 12866, Executive Order 13211, 
the Regulatory Flexibility Act and the Unfunded Mandates Reform Act.
    One commenter supported the EPA's approach with respect to cost.
    Response: The EPA disagrees with commenters concerning its 
compliance with the Executive Orders and statutes applicable to agency 
rulemaking in general. The EPA maintains that it did properly consider 
the costs imposed by this SIP call action, as required by law. As 
explained in the February 2013 proposal, to the extent that the EPA is 
issuing a SIP call to a state under section 110(k)(5), the Agency is 
only requiring a state to revise its SIP to comply with existing 
requirements of the CAA. The EPA's action, therefore, would leave to 
states the choice of how to revise the SIP provision in question to 
make it consistent with CAA requirements and of determining, among 
other things, which of several lawful approaches to the treatment of 
excess emissions during SSM events will be applied to particular 
sources. Therefore, the EPA considers the only direct costs of this 
rulemaking action to be those to states associated with preparation and 
submission of a SIP revision by those states for which the EPA issues a 
SIP call.\123\ Examples of such costs could include development of a 
state rule, conducting notice and public hearing and other costs 
incurred in connection with a SIP submission. The EPA notes that it did 
not consider the costs of potential revisions to operating permits for 
sources to be a direct cost imposed by this action, because, as stated 
elsewhere in this document, the Agency anticipates that states will 
elect to delay any necessary revision of permits until the permits need 
to be reissued in the ordinary course after revision of the underlying 
SIP provisions.
---------------------------------------------------------------------------

    \123\ See Memorandum, ``Estimate of Potential Direct Costs of 
SSM SIP Calls to Air Agencies,'' April 28, 2015, in the rulemaking 
docket.
---------------------------------------------------------------------------

    The commenters also incorrectly claim that the EPA failed to comply 
with Executive Order 12291. That Executive Order was explicitly revoked 
by Executive Order 12866, which was signed by President Clinton on 
September 30, 1993.
    The commenters are likewise incorrect that the EPA did not comply 
with Executive Order 12866. This action was not deemed ``significant'' 
on a basis of the cost it will impose as the commenters claimed. The 
EPA has already concluded that this action will not result in a rule 
that may have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, of state, local or tribal governments or communities. 
The EPA instead determined that, as noted in both the February 2013 
proposal (section X.A) and the SNPR (section VIII.A), this action is a 
``significant regulatory action'' as that term is defined in Executive 
Order 12866 because it raises novel legal or policy issues. 
Accordingly, it was on that basis that the EPA submitted the February 
2013 proposal, the SNPR and the final action to the Office of 
Management and Budget (OMB) for review. Changes made

[[Page 33884]]

in response to OMB review are documented in the docket for this action. 
The EPA believes it has fully complied with Executive Order 12866.
    As stated in the February 2013 proposal, the EPA does not believe 
this is a ``significant energy action'' as defined in Executive Order 
13211, because it is not likely to have a significant adverse effect on 
the supply, distribution or use of energy. As described earlier, this 
action merely requires that states revise their SIPs to comply with 
existing requirements of the CAA. States have the choice of how to 
revise the deficient SIP provisions that are the subject of this 
action; there are a variety of different ways that states may treat the 
issue of excess emissions during SSM events consistent with CAA 
requirements for SIPs. This action merely prescribes the EPA's action 
for states regarding their obligations for SIPs under the CAA, and 
therefore it is not a ``significant energy action'' under Executive 
Order 13211.
    With respect to the Regulatory Flexibility Act (RFA), as the EPA 
explained in the February 2013 proposal, courts have interpreted the 
RFA to require a regulatory flexibility analysis only when small 
entities will be subject to the requirements of the rule.\124\ This 
action will not impose any requirements on small entities. Instead, it 
merely reiterates the EPA's interpretation of the statutory 
requirements of the CAA. To the extent that the EPA is issuing a SIP 
call to a state under section 110(k)(5), the EPA is only requiring the 
state to revise its SIP to comply with existing requirements of the 
CAA. In turn, the state will determine whether and how to regulate 
specific sources, including any small entities, through the process of 
deciding how to revise a deficient SIP provision. The EPA's action 
itself will not have a significant economic impact on a substantial 
number of small entities.
---------------------------------------------------------------------------

    \124\ See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000); 
Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985).
---------------------------------------------------------------------------

    As the EPA explained in the February 2013 proposal, this action is 
not subject to the requirements of the Unfunded Mandates Reform Act 
(UMRA) because it does not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local and tribal 
governments, in the aggregate, or the private sector in any one year. 
With respect to the impacts on sources, the EPA's action in this 
rulemaking is not directly imposing costs on any sources. The EPA's 
action is merely directing states to revise their SIPs in order to 
bring them into compliance with the legal requirements of the CAA for 
SIP provisions. In response to the SIP call, the states will determine 
how best to revise their deficient SIP provisions in order to meet CAA 
requirements. It is thus the states that will make the decisions 
concerning how best to revise their SIP provisions and will determine 
what impacts will ultimately apply to sources as a result of those 
revisions.
    8. Comments that the EPA's action violates procedural requirements 
of the CAA or the APA, because the EPA is acting on the Petition, 
updating its SSM Policy and applying its interpretation of the CAA to 
specific SIP provisions in one action.
    Comment: Commenters argued that the EPA's proposed action on the 
Petition, which includes simultaneous updating of its interpretations 
of the CAA in the SSM Policy and application of those revised 
interpretations to existing SIP provisions, is in violation of 
procedural requirements of the CAA and the APA. According to the 
commenters, the EPA's combination of actions is a ``subterfuge'' to 
avoid notice and comment on the proposed actions in the February 2013 
proposal. The commenters claimed that the EPA could only take these 
actions through two or more separate rulemaking actions. By proposing 
to update its interpretation of the CAA in the SSM Policy through 
notice-and-comment rulemaking and proposing to apply its interpretation 
of the CAA through notice-and-comment rulemaking to existing SIP 
provisions, the commenters claimed, the EPA has prejudged the outcome 
of this action.
    Response: The EPA does not agree that it was required to take this 
action in multiple separate rulemakings as claimed by the commenters. 
First, the EPA notes, the fact that the commenters' allegation--that 
the Agency failed to proceed by notice and comment--was raised in a 
comment letter submitted on the February 2013 proposal belies the 
commenters' overarching procedural argument that the EPA is failing to 
subject its interpretations of the CAA to notice-and-comment 
rulemaking. Second, although the EPA could elect to undertake two or 
more separate notice-and-comment rulemakings in order to answer the 
Petition, to revise its interpretations of the CAA in the SSM Policy 
and to evaluate existing provisions in state SIPs against the 
requirements of the CAA, there is no requirement for the Agency to do 
so. To the contrary, the EPA believes that it is preferable to take 
these interrelated actions in a combined rulemaking process. This 
combined approach allows the EPA to explain its actions comprehensively 
and in their larger context. The combined approach allows commenters to 
participate more meaningfully by considering together the proposed 
action on the Petition, the proposed interpretations of the CAA in the 
SSM Policy and the proposed application of the EPA's interpretation to 
specific SIP provisions. By addressing the interrelated actions 
together and comprehensively, the EPA is striving to be efficient with 
the resources of both regulators and regulated parties. Most 
importantly, by combining these actions the EPA is being responsive to 
the need for prompt evaluation of the SIP provisions at issue and for 
correction of those found to be legally deficient in a timely fashion. 
Far from ``prejudging'' the issues, the EPA explicitly sought comment 
on all aspects of the February 2013 proposal and sought additional 
comment on issues related to affirmative defense provisions in the 
SNPR. Naturally, the EPA's proposal and supplemental proposal reflected 
its best judgments on the proper interpretations of the CAA and 
application of those interpretations to the issues raised by the 
Petition, as of the time of the February 2013 proposal and the SNPR.

VI. Final Action in Response To Request That the EPA Limit SIP Approval 
to the Text of State Regulations and Not Rely Upon Additional 
Interpretive Letters From the State

A. What the Petitioner Requested

    The Petitioner's third request was that when the EPA evaluates SIP 
revisions submitted by a state, the EPA should require ``all terms, 
conditions, limitations and interpretations of the various SSM 
provisions to be reflected in the unambiguous language of the SIPs 
themselves.'' \125\ The Petitioner expressed concern that the EPA has 
previously approved SIP submissions with provisions that ``by their 
plain terms'' do not appear to comply with the EPA's interpretation of 
CAA requirements embodied in the SSM Policy and has approved those SIP 
submissions in reliance on separate ``letters of interpretation'' from 
the state that construe the provisions of the SIP submission itself to 
be consistent with the SSM Policy.\126\ Because of this reliance on 
interpretive letters, the Petitioner argued that ``such constructions 
are not necessarily apparent from the text of the provisions and their 
enforceability may be difficult and unnecessarily complex and

[[Page 33885]]

inefficient.'' \127\ The Petitioner cited various past rulemaking 
actions to illustrate how EPA approval of ambiguous SIP provisions can 
inject unintended confusion for regulated entities, regulators, and the 
public in the future, especially in the context of future enforcement 
actions. Accordingly, the Petitioner requested that the EPA discontinue 
reliance upon interpretive letters when approving state SIP 
submissions, regardless of the circumstances. A more detailed 
explanation of the Petitioner's arguments appears in the 2013 February 
proposal.\128\
---------------------------------------------------------------------------

    \125\ Petition at 16.
    \126\ Petition at 14.
    \127\ Petition at 15.
    \128\ See February 2013 proposal, 78 FR 12459 at 12474 (February 
22, 2013).
---------------------------------------------------------------------------

B. What the EPA Proposed

    In the February 2013 proposal, the EPA proposed to deny the 
Petition with respect to this issue. The EPA explained the basis for 
this proposed disapproval in detail, including a discussion of the 
statutory provisions that the Agency interprets to permit this 
approach, an explanation of why this approach makes sense from both a 
practical and an efficiency perspective under some circumstances, and a 
careful explanation of the process by which EPA intends to rely on 
interpretive letters in order to assure that the concerns of the 
Petitioner with respect to potential future disputes about the meaning 
of SIP provisions should be alleviated.

C. What is being finalized in this action?

    The EPA is taking final action to deny the Petition on this 
request. The EPA believes that it has statutory authority to rely on 
interpretive letters to resolve ambiguity in a SIP submission under 
appropriate circumstances and so long as the state and the EPA follow 
an appropriate process to assure that the rulemaking record properly 
reflects this reliance. To avoid any misunderstanding about the reasons 
for this denial or any misunderstandings about the circumstances under 
which, or the proper process by which, the EPA intends to rely 
interpretive letters, the Agency is repeating its views in this final 
action in detail.
    As stated in the February 2013 proposal, the EPA agrees with the 
core principle advocated by the Petitioner, i.e., that the language of 
regulations in SIPs that pertain to SSM events should be clear and 
unambiguous. This is necessary as a legal matter but also as a matter 
of fairness to all parties, including the regulated entities, the 
regulators, and the public. In some cases, the lack of clarity may be 
so significant that amending the state's regulation may be warranted to 
eliminate the potential for confusion or misunderstanding about 
applicable legal requirements that could interfere with compliance or 
enforcement. Indeed, as noted by the Petitioner, the EPA has requested 
that states clarify ambiguous SIP provisions when the EPA has 
subsequently determined that to be necessary.\129\
---------------------------------------------------------------------------

    \129\ See, e.g., ``Finding of Substantial Inadequacy of 
Implementation Plan; Call for Utah State Implementation Plan 
Revision,'' 76 FR 21639 at 21648 (April 18, 2011).
---------------------------------------------------------------------------

    However, the EPA believes that the use of interpretive letters to 
clarify ambiguity or perceived ambiguity in the provisions in a SIP 
submission is a permissible, and sometimes necessary, approach under 
the CAA. Used correctly, and with adequate documentation in the Federal 
Register and the docket for the underlying rulemaking action, reliance 
on interpretive letters can serve a useful purpose and still meet the 
enforceability concerns of the Petitioner. So long as the interpretive 
letters and the EPA's reliance on them is properly explained and 
documented, regulated entities, regulators, and the public can readily 
ascertain the existence of interpretive letters relied upon in the 
EPA's approval that would be useful to resolve any perceived ambiguity. 
By virtue of being part of the stated basis for the EPA's approval of 
that provision in a SIP submission, the interpretive letters 
necessarily establish the correct interpretation of any arguably 
ambiguous SIP provision. In other words, the rulemaking record should 
reflect the shared state and EPA understanding of the meaning of a 
provision at issue at the time of the approval, which can then be 
referenced should any question about the provision arise in a future 
enforcement action.
    In addition, reliance on interpretive letters to address concerns 
about perceived ambiguity can often be the most efficient and timely 
way to resolve concerns about the correct meaning of regulatory 
provisions. Both air agencies and the EPA are required to follow time- 
and resource-intensive administrative processes in order to develop and 
evaluate SIP submissions. It is reasonable for the EPA to exercise its 
discretion to use interpretive letters to clarify concerns about the 
meaning of regulatory provisions, rather than to require air agencies 
to reinitiate a complete administrative process merely to resolve 
perceived ambiguity in a provision in a SIP submission.\130\ In 
particular, the EPA considers this an appropriate approach where 
reliance on such an interpretive letter allows the air agency and the 
EPA to put into place SIP provisions that are necessary to meet 
important CAA objectives and for which unnecessary delay would be 
counterproductive. For example, where an air agency is adopting 
emission limitations for purposes of attaining the NAAQS in an area, a 
timely letter from the air agency clarifying that an enforcement 
discretion provision is applicable only to air agency enforcement 
personnel and has no bearing on enforcement by the EPA or the public 
could help to assure that the provision is approved into the SIP 
promptly and thus allow the area to reach attainment more expeditiously 
than requiring the air agency to undertake a time-consuming 
administrative process to make a minor clarifying change in the 
regulatory text.
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    \130\ CAA section 110(k) directs the EPA to act on SIP 
submissions and to approve those that meet statutory and regulatory 
requirements. Implicit in this authority is the discretion, through 
appropriate notice-and-comment rulemaking, to determine whether a 
given SIP provision meets such requirements, in reliance on the 
information that the EPA considers relevant for this purpose.
---------------------------------------------------------------------------

    There are multiple reasons why the EPA does not agree with the 
Petitioner with respect to the alleged inadequacy of using interpretive 
letters to clarify specific ambiguities in a SIP submission and the SIP 
provisions that may ultimately result from approval of such a 
submission, provided this process is done correctly. First, under 
section 107(a), the CAA gives air agencies both the authority and the 
primary responsibility to develop SIPs that meet applicable statutory 
and regulatory requirements. However, the CAA generally does not 
specify exactly how air agencies are to meet the requirements 
substantively, nor does the CAA specify that air agencies must use 
specific regulatory terminology, phraseology, or format, in provisions 
submitted in a SIP submission. Air agencies each have their own 
requirements and practices with respect to rulemaking, making 
flexibility respecting terminology on the EPA's part appropriate, so 
long as CAA requirements are met.
    As a prime example relevant to the SSM issue, CAA section 
110(a)(2)(A) requires that a state's SIP shall include ``enforceable 
emission limitations and other control measures, means, or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights) as well as schedules and

[[Page 33886]]

timetables for compliance as may be necessary or appropriate to meet 
the applicable requirements of'' the CAA. Section 302(k) of the CAA 
further defines the term ``emission limitation'' in important respects 
but nevertheless leaves room for variations of approach, stating that 
it is ``a requirement established by the State or Administrator which 
limits the quantity, rate, or concentration of emissions of air 
pollutants on a continuous basis, including any requirement relating to 
the operation or maintenance of a source to assure continuous emission 
reduction, and any design, equipment, work practice or operational 
standard promulgated under [the CAA].''
    Even this most basic requirement of SIPs, the inclusion of 
enforceable ``emission limitations,'' allows air agencies discretion in 
how to structure or word the emission limitations, so long as the 
provisions meet fundamental legal requirements of the CAA.\131\ Thus, 
by the explicit terms of the statute and by design, air agencies 
generally have considerable discretion in how they elect to structure 
or word their state regulations submitted to meet CAA requirements in a 
SIP.
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    \131\ The EPA notes that notwithstanding discretion in wording 
in regulatory provisions, many words have specific recognized legal 
meaning whether by statute, regulation, case law, dictionary 
definition, or common usage. For example, the term ``continuous'' 
has a specific meaning that must be complied with substantively, 
however the state may elect to word its regulatory provisions.
---------------------------------------------------------------------------

    Second, under CAA section 110(k), the EPA has both the authority 
and the responsibility to assess whether a SIP submission meets 
applicable CAA and regulatory requirements. Given that air agencies 
have authority and discretion to structure or word SIP provisions as 
they think most appropriate, so long as the SIP provisions meet CAA and 
regulatory requirements, the EPA's role is to evaluate whether those 
provisions in fact meet those legal requirements.\132\ Necessarily, 
this process entails the exercise of judgment concerning the specific 
text of regulations, with regard both to content and to clarity. 
Because actions on SIP submissions are subject to notice-and-comment 
rulemaking, there is also the opportunity for other parties to identify 
SIP provisions that they consider problematic and to bring to the EPA's 
attention any concerns about ambiguity in the meaning of the SIP 
provisions under evaluation.
---------------------------------------------------------------------------

    \132\ See, e.g., Luminant Generation v. EPA, 714 F.3d 841 (5th 
Cir. 2013) (upholding the EPA's disapproval in part of affirmative 
defense provision with unclear regulatory text); US Magnesium, LLC 
v. EPA, 690 F.3d 1157, 1170 (10th Cir. 2012) (upholding the EPA's 
issuance of a SIP call to clarify a provision that could be 
interpreted in a way inconsistent with CAA requirements).
---------------------------------------------------------------------------

    Third, careful review of regulatory provisions in a SIP submission 
can reveal areas of potential ambiguity. It is essential, however, that 
regulations are sufficiently clear that regulated entities, regulators 
and the public can all understand the SIP requirements. Where the EPA 
perceives ambiguity in draft SIP submissions, it endeavors to resolve 
those ambiguities through interactions with the relevant air agency 
even in advance of the SIP submission. On occasion, however, there may 
still remain areas of regulatory ambiguity in a SIP submission's 
provisions that the EPA identifies, either independently or as a result 
of public comments on a proposed action, for which resolution is both 
appropriate and necessary as part of the rulemaking action.
    In such circumstances, the ambiguity may be so significant as to 
require the air agency to revise the regulatory text in its SIP 
submission in order to resolve the concern. At other times, however, 
the EPA may determine that with adequate explanation from the state, 
the provision is sufficiently clear and complies with applicable CAA 
and associated regulatory requirements. In some instances, the air 
agency may supply the explanation necessary to resolve any potential 
ambiguity in a SIP submission by sending an official letter from the 
appropriate authority. When the EPA bases its approval of a SIP 
submission in reliance on the air agency's official interpretation of 
the provision, that reading is explicitly incorporated into the EPA's 
action and is memorialized as the proper intended reading of the 
provision. In other words, the state and the EPA will have a shared 
understanding of the proper interpretation of the provision, and that 
interpretation will provide the basis for the approval of that 
provision into the SIP. The interpretation will also be clearly 
identified and presented for the public and regulated entities in the 
Federal Register document approving the SIP submission.
    For example, in the Knoxville redesignation action that the 
Petitioner noted in the Petition, the EPA took careful steps to ensure 
that the perceived ambiguity raised by commenters was substantively 
resolved and fully reflected in the rulemaking record, i.e., through 
inclusion of the interpretive letters in the rulemaking docket, quoting 
relevant passages from the letters in the Federal Register, and 
carefully evaluating the areas of potential ambiguity in response to 
public comments on a provision-by-provision basis. By discussing the 
resolution of the perceived ambiguity explicitly in the rulemaking 
record, the EPA assured that the correct meaning of that provision 
should be evident from the record, should any question concerning its 
meaning arise in a future dispute.
    Finally, the EPA notes that while it is possible to reflect 
interpretive letters in the Code of Federal Regulations (CFR) or 
incorporate them into the regulatory text of the CFR in appropriate 
circumstances, there is no requirement to do so in all actions, and 
there are other ways for the public to have a clear understanding of 
the content of the SIP. First, for each SIP, the CFR contains a list or 
table of actions that reflects the various components of the approved 
SIP, including information concerning the submission of, and the EPA's 
action approving, each component. With this information, interested 
parties can readily locate the actual Federal Register document in 
which the EPA will have explained the basis for its approval in detail, 
including any interpretive letters that may have been relied upon to 
resolve any potential ambiguity in the SIP provisions. With this 
information, the interested party can also locate the docket for the 
underlying rulemaking and obtain a copy of the interpretive letter 
itself. Thus, if there is any debate about the correct reading of the 
SIP provision, either at the time of the EPA's approval or in the 
future, it will be possible to ascertain the mutual understanding of 
the air agency and the EPA of the correct reading of the provision in 
question at the time the EPA approved it into the SIP. Most 
importantly, regardless of whether the content of the interpretive 
letter is reflected in the CFR or simply described in the Federal 
Register preamble accompanying the EPA's approval of the SIP 
submission, this mutual understanding of the correct reading of that 
provision upon which the EPA relied will be the reading that governs, 
should that later become an issue.
    The EPA notes that the existence of, or content of, an interpretive 
letter that is part of the basis for the EPA's approval of a SIP 
submission is in reality analogous to many other things related to that 
approval. Not everything that may be part of the basis for the SIP 
approval in the docket--including the proposal or final preambles, the 
technical support documents, responses to comments, technical analyses, 
modeling results, or docket memoranda--will be restated verbatim, 
incorporated into, or referenced in the CFR. These background materials 
remain part of the basis for the SIP

[[Page 33887]]

approval and remain available should they be needed in the future for 
any purpose. To the extent that there is any question about the correct 
interpretation of an ambiguous provision in the future, an interested 
party will be able to access the docket to verify the correct meaning 
of SIP provisions.
    With regard to the Petitioner's concern that either actual or 
alleged ambiguity in a SIP provision could impede an effective 
enforcement action, the EPA believes that its current process for 
evaluating SIP submissions and resolving potential ambiguities, 
including the reliance on interpretive letters in appropriate 
circumstances with correct documentation in the rulemaking action, 
minimizes the possibility for any such ambiguity in the first instance. 
To the extent that there remains any perceived ambiguity, the EPA 
concludes that regulated entities, regulators, the public, and 
ultimately the courts, have recourse to use the administrative record 
to shed light on and resolve any such ambiguity as explained earlier in 
this document.
    The EPA emphasizes that it is already the Agency's practice to 
assure that any interpretive letters are correctly and adequately 
reflected in the Federal Register and are included in the rulemaking 
docket for a SIP approval. Should the Petitioner or any other party 
have concerns about any ambiguity in a provision in a SIP submission, 
the EPA strongly encourages that they bring this ambiguity to the 
Agency's attention during the rulemaking action on the SIP submission 
so that it can be addressed in the rulemaking process and properly 
reflected in the administrative record. Should an ambiguity come to 
light later, the EPA encourages the Petitioner or any other party to 
bring that ambiguity to the attention of the relevant EPA Regional 
Office. If the Agency agrees that there is ambiguity in a SIP provision 
that requires clarification subsequent to final action on the SIP 
submission, then the EPA can work with the relevant air agency to 
resolve that ambiguity by various means.

D. Response to Comments Concerning Reliance on Interpretive Letters in 
SIP Revisions

    The EPA received relatively few comments, both supportive and 
adverse, concerning the Agency's overarching decision to deny the 
Petition with respect to this issue. For clarity and ease of 
discussion, the EPA is responding to these comments, grouped by whether 
they were supportive or adverse, in this section of this document.
    1. Comments that supported the EPA's interpretation of the CAA to 
allow reliance on interpretive letters to clarify ambiguities in state 
SIP submissions.
    Comment: A number of state and industry commenters agreed with the 
EPA that the use of interpretive letters to clarify perceived ambiguity 
in the provisions in a SIP is a permissible, and sometimes necessary, 
approach to approving SIP submissions under the CAA when done 
correctly. Those commenters who supported the EPA's proposed action on 
the Petition did not elaborate upon their reasoning, but generally 
supported it as an efficient and reasonable approach to resolve 
ambiguities.
    Response: The EPA agrees with the commenters who expressed support 
of the proposal based on practical considerations such as efficiency. 
These commenters did not, however, base their support for the proposed 
action on the EPA's interpretation of the CAA in the February 2013 
proposal, nor did they acknowledge the parameters that the EPA itself 
articulated concerning the appropriate situations for such reliance and 
the process by which such reliance is appropriate. Thus, the EPA 
reiterates that reliance on interpretive letters to resolve ambiguities 
or perceived ambiguities in SIP submissions must be weighed by the 
Agency on a case-by-case basis, and such evaluation is dependent upon 
the specific facts and circumstances present in a specific SIP action 
and would follow the process described in the proposal.
    2. Comments that opposed the EPA's interpretation of the CAA to 
allow reliance on interpretive letters to clarify ambiguities in state 
SIP submissions.
    Comment: Other commenters disagreed with the EPA's proposed 
response to the Petition on this issue. One commenter opposed the 
Agency's reliance on interpretive letters under any circumstances and 
did not draw any factual or procedural distinctions between situations 
in which this approach might or might not be appropriate or correctly 
processed. This commenter argued that citizens should not be required 
``to sift through a large and complex rulemaking docket in order to 
figure out the meaning and operation of state regulations.'' The 
commenter asserted that simply as a matter of ``good government,'' all 
state regulations approved as SIP provisions should be clear and 
unambiguous on their face. This commenter also expressed concern that 
courts could not or would not accord legal weight to interpretive 
letters created after state regulations were adopted and submitted to 
the EPA, or after the EPA's approval of the SIP submission occurred, 
and would view such letters as post hoc interpretations of no probative 
value. Another commenter added its view that reliance on interpretive 
letters is appropriate only when affected parties have the right to 
comment on the interpretive letters and the EPA's proposed use of them 
during the rulemaking in which the EPA relies on such letters to 
resolve ambiguities and before the Agency finally approves the SIP 
revision.
    Response: As a general matter, the commenter opposing the EPA's 
reliance on interpretive letters in any circumstances because citizens 
would be required ``to sift through'' the docket did not provide 
specific arguments regarding the EPA's interpretation of the statute as 
stated in the February 2013 proposal. Consistent with the EPA's 
interpretation of the CAA, and as explained earlier in this document, 
the EPA agrees with the core principle that the language of regulations 
in SIPs that pertain to SSM events should be clear and unambiguous. A 
commenter argued that ``a fundamental principle of good government is 
making sure that all people know what the applicable law is. Having the 
applicable law manifest in a letter sitting in a filing cabinet in one 
office clearly does not qualify as good government.'' The EPA generally 
agrees on this point as well. As explained earlier in this document, 
the EPA allows the use of interpretive letters to clarify perceived 
ambiguity in the provisions of a SIP submission only when used 
correctly, with adequate documentation in both the Federal Register and 
the docket for the underlying rulemaking action. Section VI.B of this 
document explains how interested parties can use the list or table of 
actions that appears in the CFR and that reflects the various 
components of the approved SIP, to identify the Federal Register 
document wherein the EPA has explained the basis for its decision on 
any individual SIP provision. As such, the EPA does not envision a 
scenario whereby a citizen or a court would be unable to determine how 
the air agency and the EPA interpreted a specific SIP provision at the 
time of its approval into the SIP. Assuming there is any ambiguity in 
the provision, the mutual understanding of the state and the EPA as to 
the proper interpretation of that provision would be clear at the time 
of the approval of the SIP revision, as reflected in the Federal 
Register document for the final rule and the docket supporting that 
rule, which should answer any question about the correct interpretation 
of the term.
    The same commenter also questioned whether ``courts can or will 
give any

[[Page 33888]]

legal weight to interpretative letters created after state regulations 
are adopted or SIP approvals occurred, in the face of industry 
defendant arguments that the SIP provisions do not accord with those 
post hoc interpretive letters.'' This commenter asserted that by not 
requiring all interpretations of the SSM provisions in the 
``unambiguous language of the SIPs,'' the EPA is accepting ``great 
legal uncertainty'' as to whether judges will consider interpretive 
letters in enforcement actions. As a preliminary matter, as explained 
earlier in this document, this action does not apply to ``post hoc'' 
interpretive letters, i.e., to situations where a state would submit an 
interpretive letter after the EPA's approval of the SIP. Through this 
action the EPA is confirming its view that it may use interpretive 
letters to clarify ambiguous SIP provisions only when those letters 
were submitted to the EPA during the evaluation of the SIP submission 
and before final approval of the SIP revision and were included in the 
final rulemaking docket and explicitly discussed in the Federal 
Register document announcing such final action.
    In addition, as explained earlier in this document, once the EPA 
approves a SIP revision, it becomes part of the state's SIP identified 
in the CFR and thus becomes a federally enforceable regulation. In 
cases where the substance of the interpretive letter is provided in the 
CFR itself, either by copying the interpretation verbatim into the 
regulatory text or by incorporating the letter by reference, courts 
need not look further for the state and the Agency's agreed upon 
interpretation. The EPA's interpretation will be clearly reflected in 
the CFR. The EPA recognizes that actual or perceived regulatory 
ambiguity may become an issue in instances where the interpretive 
letter is reflected in the preamble to the final rulemaking but is not 
copied or incorporated by reference in the CFR text itself. It is 
important to note, however, that once included in the preamble to the 
final rule, the air agency's interpretation of the SIP provision, as 
reflected in the interpretive letter, becomes the EPA's promulgated 
interpretation as well. While the EPA recognizes that an agency's 
preamble guidance generally does not have the binding force of an 
agency's regulations, courts do view it as informative in understanding 
an agency's interpretation of its own regulation,\133\ and courts 
accord an agency's interpretation of its own regulations a `` `high 
level of deference,' accepting it `unless it is plainly wrong.' '' 
\134\ When reviewing a purportedly ambiguous agency regulation, courts 
have found that the agency's interpretation of its own regulation is 
``controlling unless `plainly erroneous or inconsistent with the 
regulation.' '' \135\ Based on these settled legal principles, the EPA 
would expect a court in an enforcement action to look not only to the 
text of the regulation at issue but also to the preamble to the final 
rule. The preamble would contain an explanation of any interpretive 
letter from the state upon which the EPA relied in order to interpret 
any ambiguous SIP provisions.\136\ As such, the EPA disagrees that it 
is ``accepting an unreasonable amount of legal uncertainty'' in future 
enforcement actions by allowing the use of interpretive letters to 
clarify SIP provisions where such letters are specifically discussed in 
the final rulemaking. The EPA reiterates that reliance on such 
interpretive letters is not appropriate in all circumstances, such as 
instances in which the state's SIP submission is so significantly 
ambiguous that it is necessary to request that the state revise the 
regulatory text before the EPA can approve it into the SIP.
---------------------------------------------------------------------------

    \133\ See, e.g., Howmet Corp. v. EPA, 614 F.3d 544, 552 (D.C. 
Cir. 2010) (using preamble guidance to interpret an ambiguous 
regulatory provision); Wyo. Outdoor Council v. U.S. Forest Serv., 
165 F.3d 43, 53 (D.C. Cir. 1999) (``Although the preamble does not 
`control' the meaning of the regulation, it may serve as a source of 
evidence concerning contemporaneous agency intent.'').
    \134\ Howmet at 549 (quoting Gen Elec. Co. v. EPA, 53 F.3d 1324, 
1327 (D.C. Cir. 1990)).
    \135\ Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting 
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 
(1989)).
    \136\ Indeed, the APA requires agencies to ``incorporate in the 
rules adopted a concise general statement of their basis and 
purpose,'' 5 U.S.C. 553(c), often referred to as the regulatory 
preamble. It would not make sense for a court to attempt to 
interpret the text of a regulation independently from its 
statutorily mandated statement of basis and purpose.
---------------------------------------------------------------------------

    Finally, a commenter stated its view that reliance on interpretive 
letters may be appropriate, but only when affected parties have the 
right to comment on the letter and the EPA's reliance on it during the 
rulemaking in which the letter is relied upon. The EPA has explained 
earlier in this document the proper circumstances under which such 
reliance may be appropriate and the proper process to be followed when 
reliance upon such letters is appropriate, but the EPA also notes that 
the process does not require that the letters always be made available 
for public comment. As explained earlier in this document, the EPA 
makes every attempt to identify ambiguities in state-submitted SIPs and 
requests states to submit interpretive letters to explain any 
ambiguities, before putting the proposed action on the SIP submission 
out for public notice and comment. On occasion, however, ambiguous 
provisions may inadvertently remain and are not identified until the 
notice-and-comment period has begun. As explained earlier in this 
document, sometimes these ambiguities are so significant that the EPA 
requires the state to resubmit its SIP submission altogether, which 
would entail another notice-and-comment period. When the EPA does not 
deem the ambiguity to be so significant as to warrant a revision to the 
state's regulatory text in the SIP submission, the Agency believes that 
resolution of the ambiguity through the submission of an interpretive 
letter, which then is incorporated into the EPA's action, reflected in 
the administrative record and memorialized as the proper intended 
reading of the provision, is appropriate.
    This approach comports with well-established principles applicable 
to notice-and-comment rulemaking generally. One purpose of giving 
interested parties the opportunity to comment is to provide these 
parties the opportunity to bring areas of potential ambiguity in the 
proposal to an agency's attention so that the concerns may be addressed 
before the agency takes final action. If the APA did not allow the 
agency to consider comments and provide clarification when issuing its 
final action as necessary, this purpose would be defeated. Courts have 
held that so long as a final rule is a ``logical outgrowth'' of the 
proposed rule, adequate notice has been provided.\137\ It is the EPA's 
practice to neither require a state to resubmit a SIP submission nor 
repropose action on the submission, so long as the clarification 
provided in the interpretive letter is a logical outgrowth of the 
proposed SIP provision. If an interested party believes that the EPA is 
incorrect in not requiring the state to revise its SIP submission or 
that the EPA should repropose action on a submission, including the 
clarification provided by the interpretive letter in the plain language 
of the SIP submission itself, that party does have recourse. The APA 
gives that party the opportunity to petition the EPA for rulemaking to 
reconsider the decision under 5 U.S.C. 553(e). For these reasons, the 
EPA believes that its process for using interpretive letters to clarify 
SIP

[[Page 33889]]

provisions, as articulated in this rulemaking, is appropriate.
---------------------------------------------------------------------------

    \137\ See, e.g., Shell Oil Co., 950 F.2d 741; NRDC v. Thomas, 
838 F.2d 1224 (D.C. Cir. 1988); South Terminal Corp. v. EPA, 504 
F.2d 646.
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VII. Clarifications, Reiterations and Revisions to the EPA's SSM Policy

A. Applicability of Emission Limitations During Periods of SSM

1. What the EPA Proposed
    In the February 2013 proposal, the EPA reiterated its longstanding 
interpretation of the CAA that SIP provisions cannot include exemptions 
from emission limitations for excess emissions during SSM events. This 
has been the EPA's explicitly stated interpretation of the CAA with 
respect to SIP provisions since the 1982 SSM Guidance, and the Agency 
has reiterated this important point in the 1983 SSM Guidance, the 1999 
SSM Guidance and the 2001 SSM Guidance. In accordance with CAA section 
302(k), SIPs must contain emission limitations that ``limit the 
quantity, rate, or concentration of emissions of air pollutants on a 
continuous basis.'' Court decisions confirm that this requirement for 
continuous compliance prohibits exemptions for excess emissions during 
SSM events.\138\
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    \138\ See, e.g., Sierra Club v. Johnson, 551 F.3d 1019, 1021 
(D.C. Cir. 2008) (interpreting the definition of emission limitation 
in section 302(k) and section 112); Mich. Dep't of Envtl. Quality v. 
Browner, 230 F.3d 181 (6th Cir. 2000) (upholding disapproval of SIP 
provisions because they contained exemptions applicable to SSM 
events); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th Cir. 
2012) (upholding the EPA's issuance of a SIP call to a state to 
correct SSM-related deficiencies).
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2. What Is Being Finalized in This Action
    For the reasons explained in the February 2013 proposal, in the 
background memorandum supporting that proposal and in the EPA's 
responses to comments in this document, the EPA interprets the CAA to 
prohibit exemptions for excess emissions during SSM events in SIP 
provisions. This interpretation has long been reflected in the SSM 
Policy. The EPA acknowledges, however, that both states and the Agency 
have failed to adhere to the CAA consistently with respect to this 
issue in some instances in the past, and thus the need for this SIP 
call action to correct the existing deficiencies in SIPs. In order to 
be clear about this important point on a going-forward basis, the EPA 
is reiterating that emission limitations in SIP provisions cannot 
contain exemptions for emissions during SSM events.
    Many commenters wrongly asserted that the EPA declared in the 
February 2013 proposal that all emission limitations in SIPs must be 
established as numerical limitations, or must be set at the same 
numerical level at all times. The EPA did not take this position. In 
the case of section 110(a)(2)(A), the statute does not include an 
explicit requirement that all SIP emission limitations must be 
expressed numerically. In practice, it may be that numerical emission 
limitations are the most appropriate from a regulatory perspective 
(e.g., to be legally and practically enforceable) and thus the 
limitation would need to be established in this form to meet CAA 
requirements. The EPA did not, however, adopt the position ascribed to 
it by commenters, i.e., that SIP emission limitations must always be 
expressed only numerically and must always be set at the same numerical 
level during all modes of source operation.
    The EPA notes that some provisions of the CAA that govern standard-
setting limit the EPA's own ability to set non-numerical 
standards.\139\ Section 110(a)(2)(A) does not contain comparable 
explicit limits on non-numerical forms of emission limitation. 
Presumably, however, some commenters misunderstood the explicit 
statutory requirement for emission limitations to be ``continuous'' as 
a requirement that states must literally establish SIP emission 
limitations that would apply the same precise numerical level at all 
times. Evidently these commenters did not consider the explicit 
recommendations that the EPA made in the February 2013 proposal 
concerning creation of alternative emission limitations in SIP 
provisions that states may elect to apply to sources during startup, 
shutdown or other specifically defined modes of source operation.\140\ 
As many of the commenters acknowledged, the EPA itself has recently 
promulgated emission limitations in NSPS and NESHAP regulations that 
impose different numerical levels during different modes of source 
operation or impose emission limitations that are composed of a 
combination of a numerical limitation during some modes of operation 
and a specific technological control requirement or work practice 
requirement during other modes of operation. In light of the court's 
decision in Sierra Club v. Johnson, the EPA has been taking steps to 
assure that its own regulations impose emission limitations that apply 
continuously, including during startup and shutdown, as required.\141\
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    \139\ See, e.g., CAA section 112(h)(1) (authorizing design, 
equipment, work practice, or other operational emission limitations 
under certain conditions); 40 CFR 51.308(e)(1)(iii) (regulations 
applicable to regional haze plans).
    \140\ See February 2013 proposal, 78 FR 12459 at 12478 (February 
22, 2013) (the recommended criteria for consideration in creation of 
SIP provisions that apply during startup and shutdown).
    \141\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Regardless of the reason for the commenters' apparent 
misunderstanding on this point, many of the commenters used this 
incorrect premise as a basis to argue that ``continuous'' SIP emission 
limitations may contain total exemptions for all emissions during SSM 
events. Therefore, in this final action the EPA wishes to be very clear 
on this important point, which is that SIP emission limitations: (i) Do 
not need to be numerical in format; (ii) do not have to apply the same 
limitation (e.g., numerical level) at all times; and (iii) may be 
composed of a combination of numerical limitations, specific 
technological control requirements and/or work practice requirements, 
with each component of the emission limitation applicable during a 
defined mode of source operation. It is important to emphasize, 
however, that regardless of how the air agency structures or expresses 
a SIP emission limitation--whether solely as one numerical limitation, 
as a combination of different numerical limitations or as a combination 
of numerical limitations, specific technological control requirements 
and/or work practice requirements that apply during certain modes of 
operation such as startup and shutdown--the emission limitation as a 
whole must be continuous, must meet applicable CAA stringency 
requirements and must be legally and practically enforceable.\142\
---------------------------------------------------------------------------

    \142\ The EPA notes that CAA section 123 explicitly prohibits 
certain intermittent or supplemental controls on sources. In a 
situation where an emission limitation is continuous, by virtue of 
the fact that it has components applicable during all modes of 
source operation, the EPA would not interpret the components that 
applied only during certain modes of operation, e.g., startup and 
shutdown, to be prohibited intermittent or supplemental controls.
---------------------------------------------------------------------------

    Another apparent common misconception of commenters was that SIP 
provisions may contain exemptions for emissions during SSM events, so 
long as there is some other generic regulatory requirement of some kind 
somewhere else in the SIP that coincidentally applies during those 
exempt periods. The other generic regulatory requirements most 
frequently referred to by commenters are ``general duty'' type 
requirements, such as a general duty to minimize emissions at all 
times, a general duty to use good engineering judgment at all times, or 
a

[[Page 33890]]

general duty not to cause a violation of the NAAQS at any time. To the 
extent that such other general-duty requirement is properly established 
and legally and practically enforceable, the EPA would agree that it 
may be an appropriate separate requirement to impose upon sources in 
addition to the (continuous) emission limitation. The EPA itself 
imposes separate general duties of this type in appropriate 
circumstances.\143\ The existence of these generic provisions does not, 
however, legitimize exemptions for emissions during SSM events in a SIP 
provision that imposes an emission limitation.
---------------------------------------------------------------------------

    \143\ See, e.g., ``Oil and Natural Gas Sector: New Source 
Performance Standards and National Emission Standards for Hazardous 
Air Pollutants Reviews; Final rule,'' 77 FR 49489 at 49570, 49586 
(August 16, 2012) (added general standards to apply at all times).
---------------------------------------------------------------------------

    In accordance with the definition of section 302(k), SIP emission 
limitations must be continuous and apply at all times. SIP provisions 
may be composed of a combination of numerical limitations, specific 
technological control requirements and/or work practice requirements, 
but those must be components of a continuously applicable SIP emission 
limitation. In addition, the SIP emission limitation must meet 
applicable stringency requirements during all modes of source operation 
(e.g., be RACT for stationary sources located in a nonattainment area) 
and be legally and practically enforceable. General-duty requirements 
that are not clearly part of or explicitly cross-referenced in a SIP 
emission limitation cannot be viewed as a component of a continuous 
emission limitation. Even if clearly part of or explicitly cross-
referenced in the SIP emission limitation, however, a given general-
duty requirement may not be consistent with the applicable stringency 
requirements for that type of SIP provision during startup and 
shutdown. The EPA's recommendations for developing appropriate 
alternative emission limitations applicable during certain modes of 
source operation are discussed in section VII.B.2 of this document. In 
general, the EPA believes that a legally and practically enforceable 
alternative emission limitation applicable during startup and shutdown 
should be expressed as a numerical limitation, a specific technological 
control requirement or a specific work practice requirement applicable 
to affected sources during specifically defined periods or modes of 
operation.
3. Response to Comments
    The EPA received a substantial number of comments, both supportive 
and adverse, concerning the issue of exemptions in SIP provisions for 
excess emissions during SSM events. Many of these comments raised the 
same core issues, albeit using slight variations on the arguments or 
variations on the combination and sequence of arguments. For clarity 
and ease of discussion, the EPA is responding to these comments, 
grouped by issue, in this section of this document.
    a. Comments that the EPA's proposed action on the Petition is 
incorrect because some of the Agency's own regulations contain 
exemptions for emissions during SSM events.
    Comment: Many commenters argued that the EPA is misinterpreting the 
CAA to preclude SIP provisions with exemptions for emissions during SSM 
events because some of the Agency's own existing NSPS and NESHAP rules 
contain such exemptions. Some commenters provided a list of existing 
NSPS or NESHAP standards that they claimed currently contain exemptions 
for emissions during SSM events. Commenters also noted that the NSPS 
general provisions at 40 CFR 60.11(d) excuse noncompliance with many 
NSPS during periods of startup and shutdown. Other commenters asserted 
that the EPA's interpretations in the February 2013 proposal are 
inconsistent with its longstanding interpretation of the Act because 
the EPA itself has a long history of adopting exceptions to numerical 
emission limitations for emissions during SSM events, citing to the 
NSPS general provisions at 40 CFR 60.8, the NSPS for Fossil-Fuel-Fired 
Steam Generators and for Electric Utility Steam Generating Units (40 
CFR part 60, respectively subparts D and Da) and the NSPS for 
Industrial-Commercial-Institutional Steam Generating Units and for 
Small Industrial-Commercial-Institutional Steam Generating Units (40 
CFR part 60, respectively subparts Db and Dc). Commenters claimed that 
recent revisions to 40 CFR part 60, subpart Da excluded periods of 
startup and shutdown from new PM standards. The commenters pointed to 
these facts or alleged facts as evidence that the EPA is interpreting 
the term ``emission limitation'' or other provisions of the statute 
inconsistently to preclude SSM exemptions in SIP provisions.
    Response: Commenters are correct that many of the EPA's existing 
NSPS and NESHAP standards still contain exemptions from emission 
limitations during periods of SSM. The exemptions in these EPA 
regulations, however, predated the 2008 issuance of the D.C. Circuit 
decision in Sierra Club v. Johnson, in which the court held that 
emission limitations must be continuous and thus cannot contain 
exemptions for emissions during SSM events. Likewise, the NSPS general 
provisions in 40 CFR 60.8 that commenters identified as inconsistent 
also predate that 2008 court decision. Although these other EPA 
regulations that include exemptions for emissions during SSM events 
were not before the court in the Sierra Club case, the EPA's view is 
that the legal reasoning of the Sierra Club decision applies equally to 
these exemptions and that the exemptions are thus inconsistent with the 
CAA.
    Consequently, since the Sierra Club decision, the EPA has 
eliminated exemptions in many existing federal emission limitations as 
these standards are revised or reviewed pursuant to CAA requirements, 
such as CAA sections 111(b)(1)(B), 112(d)(6) and 112(f)(2).\144\ 
Similarly, the EPA has established emission standards that apply at all 
times, including during SSM events, when promulgating new NSPS and 
NESHAP standards to be consistent with the Sierra Club decision.\145\ 
The EPA recognizes that the NSPS general provisions regulations also 
include exemptions for emissions during SSM events, but in promulgating 
new NSPS since the Sierra Club decision, the EPA has established 
emission limitations in the new NSPS that apply at all times thereby 
superseding those general provisions. Therefore, the EPA's action in 
this rulemaking is consistent with other actions that the EPA has taken 
since the Sierra Club decision concerning the issue of SSM exemptions.
---------------------------------------------------------------------------

    \144\ See, e.g., ``New Source Performance Standards Review for 
Nitric Acid Plants; Final rule,'' 77 FR 48433 (August 14, 2012) 
(example of NSPS emission limitation that no longer includes 
exemption for periods of startup or shutdown).
    \145\ See, e.g., ``Oil and Natural Gas Sector: New Source 
Performance Standards and National Emission Standards for Hazardous 
Air Pollutants Reviews; Final rule,'' 77 FR 49489 (August 16, 2012) 
(consistent with Sierra Club v. Johnson, the EPA has established 
standards in both rules that apply at all times).
---------------------------------------------------------------------------

    The fact that the EPA has not completed the process of updating its 
own regulations to bring them into compliance with respect to CAA 
requirements concerning proper treatment of emissions during SSM events 
does not render this SIP call action arbitrary or capricious. The 
existence of a deficiency in an existing EPA regulation that has not 
yet been corrected does not alter the legal requirements imposed by the 
CAA upon states with respect to SIP provisions. Thus, for example, the 
EPA does not agree with commenters that the continued existence of SSM 
exemptions

[[Page 33891]]

in the general provisions applicable to the emission limitations in the 
Agency's own NSPS for Fossil-Fuel-Fired Steam Generators in 40 CFR part 
60, subpart D, is evidence that exemptions for emissions during SSM 
events are permitted by the CAA.
    The EPA acknowledges that correction of longstanding regulatory 
deficiencies by proper rulemaking procedures requires time and 
resources, not only for the EPA but also for states and affected 
sources. Hence, the EPA has elected to proceed via its authority under 
section 110(k)(5) and to provide states with the full 18 months allowed 
by statute for compliance with this action. This SIP call is intended 
to help assure that state SIP provisions are brought into line with CAA 
requirements for emission limitations, just as the EPA is undertaking a 
process to update its own regulations.
    The EPA also specifically disagrees with the commenters' 
implication that 40 CFR 60.11(d) completely excuses noncompliance 
during periods of startup and shutdown. Rather, that provision imposes 
a separate affirmative obligation to maintain and operate the affected 
facility, including associated air pollution control equipment, in a 
manner consistent with good air pollution control practices at all 
times. The existence of this separate duty to minimize emissions, 
however, does not justify or excuse the existence of an exemption for 
emissions during SSM events from the emission limitations of an EPA 
NSPS. It is a separate obligation that sources must also meet at all 
times.
    The EPA also disagrees with the commenters who argued that the 
Agency has recently created new exemptions for PM emissions during 
startup and shutdown events in the NSPS for Electric Utility Steam 
Generating Units in 40 CFR part 60, subpart Da. The EPA has not created 
new exemptions for emissions during startup and shutdown. To the 
contrary, the EPA has taken steps to assure that these regulations are 
consistent with the statutory definition of emission limitation and 
with the logic of the Sierra Club decision on a going-forward basis. In 
accordance with that decision, the revised emission limitations in 
subpart Da NSPS apply continuously. In revising subpart Da to establish 
requirements for sources on which construction, modification or 
reconstruction commenced after May 3, 2011, the EPA determined that it 
was appropriate to provide that the exemptions for emissions during SSM 
events in the General Provisions do not apply.\146\ Although the Sierra 
Club v. Johnson decision specifically addressed the validity of SSM 
exemptions in NESHAP regulations, the EPA concluded that the court's 
focus on the definition of ``emission limitation'' in section 302(k) 
applied equally to any such SSM exemptions in NSPS regulations. Thus, 
for affected sources on which construction, modification or 
reconstruction starts after May 3, 2011, the General Provisions do not 
provide an exemption to compliance with the applicable emission 
limitations during SSM events.
---------------------------------------------------------------------------

    \146\ See 40 CFR 60.48Da(a). For affected facilities for which 
construction, modification, or reconstruction commenced after May 3, 
2011, the applicable SO2 emissions limit under Sec.  
60.43Da, NOX emissions limit under Sec.  60.44Da, and 
NOX plus CO emissions limit under Sec.  60.45Da apply at 
all times.
---------------------------------------------------------------------------

    For such sources, the emission limitation for PM in 40 CFR 
60.42Da(a) imposes a numerical level of 0.03 lb/MMBtu that applies at 
all times except during startup and shutdown and specific work 
practices that apply during startup and shutdown.\147\ The related 
emission limitation for opacity from such sources in 40 CFR 60.42Da(b) 
is 20 percent opacity at all times, except for one 6-minute period per 
hour of not more than 27 percent, and it applies at all times except 
during periods of startup and shutdown when the work practices for PM 
limit opacity. Commenters alleged that the EPA created an ``exemption'' 
from the PM emission limitations in subpart Da applicable to post-May 
3, 2011, affected sources. That is simply incorrect. The revised 
regulations in subpart Da impose a numerical emission limitation that 
applies at all times except during startup and shutdown and impose 
specific work practice requirements that apply during startup and 
shutdown as a component of the emission limitation. Specifically, 40 
CFR 60.42Da(e)(2) explicitly requires post-May 3, 2011, affected 
sources to comply with specific work practice standards in part 63, 
subpart UUUUU. The numerical emission limitation and the work practice 
requirement together comprise a continuous emission limitation and 
there is no exemption for emissions during startup and shutdown. The 
fact that the EPA has established different requirements for different 
periods of operation does not constitute creation of an exemption. 
These emission limitations have numerical limitations that apply during 
most periods and specific technological control requirements or work 
practice requirements that apply during startup and shutdown, but all 
periods of operation are subject to controls and no periods of 
operation are exempt from regulation. States are similarly able to 
alter their regulations, in response to this SIP call, to provide for 
emission limitations with different types of controls applicable during 
different modes of source operation, so long as those controls apply at 
all times and no periods are exempt from controls. As explained in 
section VII.A of this document, the EPA interprets section 110(a)(2)(A) 
to permit SIP provisions that are composed of a combination of 
numerical limitations, specific technological control requirements and/
or work practice requirements, so long as the resulting emission 
limitations are continuous, meet applicable stringency requirements 
(e.g., are RACT for sources in nonattainment areas) and are legally and 
practically enforceable.
---------------------------------------------------------------------------

    \147\ The EPA notes that the emission standards for 
SO2 in 40 CFR 60.43Da and for NOX in 40 CFR 
60.44Da, applicable to sources on which construction, modification 
or reconstruction commenced after May 3, 2011, also apply 
continuously and contain no exemptions for emissions during SSM 
events.
---------------------------------------------------------------------------

    The EPA also notes that the provisions of 40 CFR 60.42Da(b)(1) do 
not provide an ``exemption'' from the opacity standard. That section 
merely provides that the affected sources do not need to meet the 
opacity standard of the NSPS (at any time), if they have installed a PM 
continuous emission monitoring system (PM CEMS) to measure PM emissions 
continuously instead of relying on periodic stack tests to assure 
compliance with the PM emission limitation. One reason for the 
imposition of opacity standards on sources is to provide an effective 
means of monitoring for purposes of assuring source compliance with PM 
emission limitations and proper operation of PM emission controls on a 
continuous basis. If a source is subject to a sufficiently stringent PM 
limitation and has opted to install, calibrate, maintain and operate a 
PM CEMS to measure PM emissions, then it is reasonable for the EPA to 
conclude that an opacity emission limitation is not needed for that 
particular source for those purposes.\148\ The direct measurement of 
PM, in conjunction with an appropriately stringent PM emission 
limitation that

[[Page 33892]]

applies continuously, is an appropriate means to assure adequate 
control of PM emissions on a continuous basis. States evaluating how 
best to replace impermissible SSM exemptions from opacity standards may 
wish to consider a similar approach, conditioned upon the use of PM 
CEMS and a sufficiently stringent PM emission limitation.
---------------------------------------------------------------------------

    \148\ For example, for NSPS regulations under subparts D, Da, Db 
and Dc of 40 CFR part 60, the EPA has deemed 0.030 lb/MMBtu to be a 
sufficiently stringent PM limitation for certain sources operating 
PM CEMS to conclude that an opacity emission limitation is not 
needed, on the basis that the contribution of filterable PM to 
opacity at PM levels of 0.030 lb/MMBtu or less is generally 
negligible, and sources with mass limits at this level or less will 
operate with little or no visible emissions (i.e., less than 5 
percent opacity). See 74 FR 5072 at 5073 (January 28, 2009).
---------------------------------------------------------------------------

    Finally, the EPA emphasizes that what is at issue in this action is 
the question of whether emission limitations in SIP provisions can 
include exemptions for emissions during SSM events. The EPA is 
reiterating its longstanding interpretation of the CAA with respect to 
this question, in the process of responding to the Petition, updating 
its SSM Policy and applying its current interpretations of the CAA to 
the specific SIP provisions at issue in this SIP call action. To the 
extent that commenters intend to point out that the EPA needs to 
address exemptions for emissions during SSM events in its own existing 
regulations, the Agency is already aware of that need due to recent 
judicial decisions and is proceeding to correct those regulations in 
due course.
    b. Comments that the EPA's proposed action on the Petition is 
incorrect because the Agency has previously allowed the inclusion of 
exemptions for emissions during SSM events through approval of NSPS or 
NESHAP requirements into SIPs.
    Comment: Commenters asserted that the EPA is being inconsistent 
because it has previously approved SIP submissions that rely on NSPS 
rules, including the SSM exemptions in those existing rules. The 
commenters argued that the EPA's current interpretation of the CAA to 
preclude SSM exemptions in SIP provisions is thus at odds with past 
guidance and practice.
    Response: The EPA disagrees with the argument that past approval of 
SIP submissions that relied upon an NSPS or NESHAP with an SSM 
exemption is evidence that such exemptions should be permissible in SIP 
provisions in the future. In the 1999 SSM Guidance, the EPA addressed 
the related issue of whether states could create affirmative defenses 
in SIP provisions that would alter or add to the requirements of an 
existing EPA NSPS or NESHAP.\149\ At that time, the EPA clearly stated 
that it would be inappropriate for a state to seek to ``deviate'' from 
the specific requirements of an NSPS or NESHAP when adopting that 
standard as a SIP provision, stating that ``[b]ecause EPA set these 
standards taking into account technological limitations, additional 
exemptions would be inappropriate.'' Thus, so long as a state did not 
alter the requirements of the existing NSPS or NESHAP by including 
additional affirmative defenses or exemptions, the EPA indicated that 
it would approve a SIP submission that included an NSPS or NESHAP.
---------------------------------------------------------------------------

    \149\ See 1999 SSM Guidance at Attachment p. 3.
---------------------------------------------------------------------------

    The commenters' argument has brought to the EPA's attention that 
past guidance on this issue is in fact inconsistent with more recent 
legal developments. At the time of the 1999 SSM Guidance, the EPA was 
still of the belief that its own NSPS and NESHAP regulations could 
legitimately include exemptions for emissions during SSM events. In 
that light, recommending to states that they could rely on an EPA NSPS 
or NESHAP as an emission limitation in a SIP provision so long as they 
did not alter the NSPS or NESHAP in any fashion was logical. At that 
time, the reasoning was that NSPS and NESHAP standards were technology-
based standards that, although neither designed nor intended to meet 
the separate legal requirements for SIP provisions, could be used to 
provide emission reductions creditable in SIPs. Since the 2008 D.C. 
Circuit decision in Sierra Club v. Johnson, however, it has been clear 
that NSPS and NESHAP standards themselves cannot contain such 
exemptions. The reasoning of the court was that exemptions for SSM 
events are impermissible because they contradict the requirement that 
emission limitations be ``continuous'' in accordance with the 
definition of that term in section 302(k). Although the court evaluated 
this issue in the context of EPA regulations under section 112, the EPA 
believes that this same logic extends to SIP provisions under section 
110, which similarly must contain emission limitations as defined in 
the CAA. Section 110(a)(2)(A) requires states to have emission 
limitations in their SIPs to meet other CAA requirements, and any such 
emission limitations would similarly be subject to the definition of 
that term in section 302(k).
    Accordingly, the EPA concludes that, prospectively, a state should 
not submit an NSPS or NESHAP for inclusion into its SIP as an emission 
limitation (whether through incorporation by reference or otherwise), 
unless that NSPS or NESHAP does not include an exemption for SSM events 
or unless the state otherwise takes action to exclude the SSM exemption 
from the standard as part of the SIP submission. Because SIP provisions 
must apply continuously, including during SSM events, the EPA can no 
longer approve SIP submissions that include any emission limitations 
with such exemptions, even if those emission limitations are NSPS or 
NESHAP regulations that the EPA has not yet revised to make consistent 
with CAA requirements. Alternatively, states may elect to adopt an 
existing NSPS or NESHAP as a SIP provision, so long as the state 
provision excludes the SSM exemption.\150\ States may also wish to 
replace the SSM exemption with appropriately developed alternative 
emission limitations that apply during startup and shutdown in lieu of 
the SSM exemption. Otherwise, the EPA's approval of the deficient SSM 
exemption provisions into the SIP would contravene CAA requirements for 
SIP provisions and would potentially result in misinterpretation or 
misapplication of the standards by regulators, regulated entities, 
courts and members of the public. The EPA emphasizes that the inclusion 
of an NSPS or NESHAP as an emission limitation in a state's SIP (which 
approach, as noted in section VII.B.3 of this document, would be at the 
state's option) is different and distinct from reliance on such 
standards indirectly, such as sources of emission reductions that may 
be taken into account for SIP planning purposes in emissions 
inventories or attainment demonstrations. For these uses (i.e., other 
than as direct emission limitations), states may continue to rely on 
EPA NSPS and NESHAP regulations, even those that have not yet been 
revised to remove inappropriate exemptions, in accordance with the 
requirements applicable to those SIP planning functions.
---------------------------------------------------------------------------

    \150\ Under CAA section 116, states have the explicit general 
authority to regulate more stringently than the EPA. Indeed, under 
section 116 states can regulate sources subject to EPA regulations 
promulgated under section 111 or section 112 so long as they do not 
regulate them less stringently. Accordingly, the EPA believes that 
states may elect to adopt EPA regulations under section 111 or 
section 112 as SIP provisions and expressly eliminate the exemptions 
for emissions during SSM events.
---------------------------------------------------------------------------

    c. Comments that the EPA is misinterpreting the Sierra Club case 
because it applies only to MACT regulations and not to SIP provisions.
    Comment: Many commenters claimed that the EPA incorrectly applies 
the holding in the Sierra Club decision to preclude exemptions for 
emissions during SSM events in SIP provisions and that the Sierra Club 
decision does not apply in this context. The commenters argued that the 
Sierra Club decision was directly dependent on the structure of CAA 
section 112 and cannot be extended to the different regulatory

[[Page 33893]]

structure that governs SIPs under CAA section 110.
    The commenters further contended that in the SIP context, the 
underlying air quality pollution control requirement for SIPs is to 
attain NAAQS and no specific level of stringency is required, unlike 
section 112, and Congress gave states broad discretion in the design of 
their SIPs. Commenters asserted that the Sierra Club decision held only 
that the general-duty requirement in the section 112 regulations did 
not meet the stringency requirements of CAA section 112 and that this 
holding does not apply in the SIP context because in the SIP context no 
specific level of stringency is required.
    Commenters also asserted that a general-duty requirement is an 
appropriate alternative standard for SSM events in the SIP context 
because CAA sections 302(k) and 110(a)(2)(A) give states broad 
authority to develop the mix of controls necessary and appropriate to 
implement the NAAQS. Other commenters contended that the Sierra Club 
decision does not preclude states from constructing a compliance regime 
that uses multiple methods to limit emissions as long as the overall 
compliance regime to minimize emissions is enforceable.
    Commenters also suggested that the decision in Kamp v. Hernandez 
relied upon in the Sierra Club case affirmed EPA's approval of a state 
emission limitation in a SIP that specifically allowed and even 
expected a certain number of annual exceedances of the emission 
limit.\151\ Some commenters argued that the Sierra Club decision should 
not be read to impose a ``continuous emissions limitation'' requirement 
and that to the extent it does, it was incorrectly decided.
---------------------------------------------------------------------------

    \151\ 752 F.2d 1444 (9th Cir. 1985).
---------------------------------------------------------------------------

    Response: The EPA disagrees that the court's decision in Sierra 
Club v. Johnson has no relevance to this action. Of course that 
decision specifically addressed the validity of exemptions for 
emissions during SSM events in the Agency's own regulations promulgated 
under section 112. Naturally, that decision turned, in part, on the 
specific provisions of section 112 and the specific arguments that each 
of the litigants raised in that case. However, the decision also turned 
in large part on the explicit statutory definition of the term 
``emission limitation'' in section 302(k), which requires such 
limitations to be ``continuous.''
    In that litigation, the EPA itself had argued that the exemptions 
from the otherwise applicable MACT standards during SSM events were 
consistent with CAA requirements because the MACT standards and the 
separate ``general duty'' requirements ``together form an 
uninterrupted, i.e., continuous'' emission limitation, because either 
the numerical limitation or the general duty applied at all times.\152\ 
The Sierra Club court rejected this argument, in part because the 
general duty that EPA required sources to meet during SSM events was 
not itself consistent with section 112(d) and the EPA did not purport 
to act under section 112(h). Thus, the EPA agrees that the court in 
Sierra Club explicitly found that the SSM exemption in EPA's NESHAP 
general provision rules violated the CAA because the general duty to 
minimize emissions was not a section 112(d)-compliant standard and had 
not been justified by the EPA as a 112(h)-compliant standard. The court 
reasoned that when sections 112 and 302(k) are read together, there 
must be a continuous section 112-compliant standard. It is important to 
note that if the otherwise applicable numerical MACT standards had 
themselves applied at all times consistent with section 302(k), then 
there would have been no question that they were in fact continuous.
---------------------------------------------------------------------------

    \152\ See 551 F.3d 1019, 1026 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    The EPA has concluded that the reasoning of the Sierra Club 
decision is correct and further supports the Agency's interpretations 
of the CAA with respect to SIP provisions. As explained in the February 
2013 proposal, the EPA's longstanding SSM guidance has interpreted the 
CAA to prohibit exemptions for emissions during SSM events since at 
least 1982. The EPA has long explained that exemptions for emissions 
during SSM events are not permissible in SIP provisions, because they 
interfere with attainment and maintenance of the NAAQS, protection of 
PSD increments and improvement of visibility, and because they are 
inconsistent with the enforcement structure of the CAA. The EPA also 
noted that the definition of emission limitation in section 302(k) was 
part of the basis for its interpretation concerning SIP 
provisions.\153\ In the February 2013 proposal, the EPA explained that 
the Sierra Club court's emphasis on the definition of the term emission 
limitation in section 302(k) further bolsters the Agency's basis for 
interpreting the CAA to preclude such exemptions in SIP provisions. In 
other words, under the CAA and the court's decision, emission 
limitations in SIP provisions as well as in NSPS and NESHAP regulations 
must be continuous, although they can impose different levels or forms 
of control during different modes of source operation.
---------------------------------------------------------------------------

    \153\ See 1999 SSM Guidance at 2, footnote 1 (citing the section 
302(k) definition of emission limitations and emission standards).
---------------------------------------------------------------------------

    The EPA also disagrees with the argument that the Sierra Club 
decision does not apply because section 110, unlike section 112, does 
not impose any specific level of ``stringency'' for SIP provisions. In 
accordance with section 110(a)(1), states are required to have SIPs 
that provide for attainment, maintenance and enforcement of the NAAQS 
in general. Pursuant to section 110(a)(2), states are required to have 
SIP provisions that meet many specific procedural and substantive 
requirements, including but not limited to, the explicit requirements 
of section 110(a)(2)(A) for emission limitations necessary to meet 
other substantive CAA requirements. In addition, however, states must 
have SIP provisions that collectively meet a host of other statutory 
requirements that also impose more specific stringency requirements. 
Merely by way of example, section 110(a)(2)(I) requires states with 
nonattainment areas to have SIP provisions that collectively meet part 
D requirements.\154\ In turn, the different subparts of part D 
applicable to each NAAQS impose many requirements that require emission 
limitations in SIPs that meet various levels of stringency. Again, 
merely by way of example, states with nonattainment areas for PM under 
part D subpart 4 must have SIPs that include emission limitations that 
meet either the RACM and RACT level of stringency (if the nonattainment 
area is classified Moderate) or meet the BACM and BACT level of 
stringency (if the area is classified Serious).\155\ There are similar 
requirements for states to impose emission limitations that must meet 
various levels of stringency for each of the NAAQS. Likewise, states 
must impose SIP emission limitations that meet BART and reasonable 
progress levels of stringency for regional haze program purposes \156\ 
and must ensure that emission limitations meet BACT or LAER levels of 
stringency for PSD or nonattainment NSR permitting program

[[Page 33894]]

purposes.\157\ The EPA agrees that states have broad discretion in how 
to devise SIP provisions under section 110, but states nevertheless are 
required to devise SIP provisions that meet applicable statutory 
stringency requirements. In short, the argument that the Sierra Club 
decision is not germane because there are no comparable ``stringency'' 
requirements applicable to SIP provisions is simply in error. While it 
is true that SIP provisions do not need to meet section 112 levels of 
stringency, they must still be continuous under section 302(k) and meet 
applicable NAAQS, PSD and visibility requirements and stringency 
levels. In short, they cannot contain exemptions for emissions during 
SSM events.
---------------------------------------------------------------------------

    \154\ Sections 171-193 of CAA title I comprise part D.
    \155\ See CAA section 172(c)(2) (generally applicable attainment 
plan requirements including RACM and RACT); CAA section 189(a)(1) 
(requirements for areas classified Moderate); section 189(b) 
(requirements for areas classified Serious).
    \156\ See CAA section 169A(b)(2)(A).
    \157\ See CAA section 165(a)(4) and CAA section 173(a)(2).
---------------------------------------------------------------------------

    Finally, the EPA does not agree with the commenters' view of the 
significance of the reference to the Kamp v. Hernandez decision by the 
court in the Sierra Club decision. The Kamp decision upheld the EPA's 
approval of a SIP provision that imposed an SO2 emission 
limitation on a specific stationary source.\158\ To the extent that the 
commenters believe that the Kamp decision stands for the principle that 
SIP emission limitations can be ``continuous'' even if they do not 
restrict emissions to the same numerical limitation at all times, this 
point is not in dispute. As explained in section VII.A of this 
document, the EPA agrees with this principle. If, however, the 
commenters believe that the Kamp decision instead indicates that SIP 
emission limitations may contain exemptions, such that no emission 
standard applies during some mode of source operation, then that is 
simply incorrect. The EPA-approved SIP provision at issue in Kamp did 
not itself allow for a certain number of ``exceedances'' of the 
emission limitation each year. The state emission limitation rule in 
that case was developed to ensure attainment and maintenance of the 
then applicable SO2 NAAQS and the approved emission 
limitation for the source fluctuated but was continuous. It was the 
specifications of the SO2 NAAQS standard that allowed for a 
certain number of ``exceedances'' each year. The NAAQS themselves are 
not ``emission limitations'' governed by section 302(k) and commonly 
have a statistical ``form'' that authorizes a set number of 
``exceedances'' of the numerical level of the NAAQS before there is a 
``violation'' of the NAAQS.\159\ Thus, the EPA believes that the court 
in the Sierra Club decision properly cited the Kamp case as support for 
the fundamental proposition that emission limitations must be 
``continuous.'' Moreover, the EPA notes that commenters did not address 
other reported decisions in which courts have upheld the Agency's 
disapproval of SIP submissions containing SSM exemptions.\160\
---------------------------------------------------------------------------

    \158\ 753 F.3d 1444, 1452-53 (9th Cir. 1985).
    \159\ See, e.g., 40 CFR 50.18 (24-hour PM2.5 NAAQS 
met when 98th-percentile monitored value is less than or equal to 35 
ug/m\3\).
    \160\ See, e.g., Mich. Dep't of Envtl. Quality v. Browner, 230 
F.3d 181 (6th Cir. 2000) (upholding disapproval of SIP provisions 
because they contained exemptions applicable to SSM events); US 
Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th Cir. 2012) 
(upholding the EPA's issuance of a SIP call to a state to correct 
SSM-related deficiencies).
---------------------------------------------------------------------------

    d. Comments that the EPA's proposed action contradicts a 2009 
guidance document concerning the effect of the Sierra Club decision on 
SSM exemptions in existing standards.
    Comment: A number of commenters suggested that the EPA's February 
2013 proposal is inconsistent with a memorandum (in fact a public 
letter) issued by the Agency following the Sierra Club decision in 
which the D.C. Circuit vacated two EPA provisions that exempt sources 
from section 112(d) emission standards during periods of SSM (Kushner 
letter).\161\ The commenters noted that the Kushner letter explained 
that many MACT standards have SSM exemptions that were not affected by 
the Sierra Club decision. They argued that the Kushner letter should be 
read to mean that no emission limitations other than the ones 
explicitly discussed within that letter would be affected by the 
court's holding that emission limitations under the CAA must be 
continuous.
---------------------------------------------------------------------------

    \161\ See Letter from A. Kushner, Director, Office of Civil 
Enforcement, EPA/OECA, regarding ``Vacatur of Startup, Shutdown, and 
Malfunction (SSM) Exemption (40 CFR 63.6(f)(1) and 63.6(h)(1)),'' 
July 22, 2009, in the rulemaking docket.
---------------------------------------------------------------------------

    Response: The EPA disagrees with these comments for several 
reasons. First, the commenters misinterpret the Kushner letter. The 
purpose of the Kushner letter was to explain the direct and immediate 
impact of the Sierra Club decision, which vacated the SSM exemption in 
EPA's NESHAP general provisions regulations. The Kushner letter 
explained that the vacatur would ``immediately and directly'' affect 
only the subset of NESHAP source category standards that incorporated 
the general provisions' exemption by reference, and that contain no 
other regulatory text exempting or excusing, in any way, compliance 
during SSM events, because only the general provisions' exemption was 
challenged and before the court in the Sierra Club case. However, the 
Kushner letter clearly stated that the legality of all NESHAP SSM 
exemption provisions was in question and that EPA would examine such 
provisions in light of the court's decision. Therefore, the commenters' 
suggestion that the Kushner letter supports a limited reading of the 
legal reasoning of the Sierra Club case is incorrect.
    Second, the Kushner letter did not explicitly or implicitly address 
the issue of whether the CAA allows exemptions for emissions during SSM 
events in SIP provisions. That fact is unsurprising, in that at the 
time of the Kushner letter the EPA already had guidance in the SSM 
Policy (issued and reiterated in 1982, 1983, 1999 and 2001) that 
clearly stated the Agency's view that such exemptions are not 
permissible in SIP provisions, consistent with CAA requirements. It 
would also have been unnecessary for the Kushner letter discussing the 
impact of the Sierra Club decision on NESHAP standards to have 
mentioned that the statutory definition of emission limitation also 
precludes exemptions for SSM provisions in SIPs. The EPA had already 
made this point explicitly in the 1999 SSM Guidance, when it explained 
the reasons why such provisions would be contrary to CAA requirements 
for SIPs.\162\ Thus, the EPA's guidance for SIP provisions concerning 
emissions during SSM events had already explicitly articulated that 
provisions with exemptions for SSM events could not be approved 
pursuant to CAA section 110(l), because that would interfere with a 
fundamental requirement of the CAA, i.e., the definition of ``emission 
limitation'' in section 302(k).
---------------------------------------------------------------------------

    \162\ See 1999 SSM Guidance at 2, footnote 1.
---------------------------------------------------------------------------

    Finally, the EPA disagrees that the Kushner letter could override 
the applicability of the logic of the Sierra Club decision to SIP 
provisions, even if the Agency had any such intentions. The D.C. 
Circuit's evaluation of the issue with respect to the EPA's own 
regulations was premised not solely upon the particular requirements of 
section 112 but also more broadly on the meaning and specific 
definition of the term ``emission limitation'' under the CAA. That 
definition applies to SIP provisions as well as to the EPA's own 
regulations. Because the SSM Policy in effect at the time of the Sierra 
Club decision and the time of the Kushner letter already stated that 
EPA interpreted the CAA to prohibit SIP provisions that exempt 
emissions during SSM events, there would have

[[Page 33895]]

been no need for the Kushner letter to speak to this issue.\163\
---------------------------------------------------------------------------

    \163\ See, e.g., 1999 SSM Guidance, Attachment at 1 (``any 
provision that allows for an automatic exemption for excess 
emissions is prohibited'').
---------------------------------------------------------------------------

    e. Comments that the EPA's proposed action on the Petition is 
incorrect because the Agency's recent MATS rule and Area Source Boiler 
rule regulations contain exemptions for emissions during SSM events.
    Comment: Many commenters asserted that the EPA's February 2013 
proposed action to find SIP provisions with exemptions for emissions 
during SSM events to be substantially inadequate is arbitrary and 
capricious because recent Agency NESHAP regulations under section 112 
contain similar exemptions. Commenters pointed to recently promulgated 
rules such as the MATS rule \164\ and the Area Source Boiler rule \165\ 
as examples of NESHAP regulations that they claim contain similar 
exemptions. According to commenters, the emission limitations in EPA's 
own MATS rule ``allow excess emissions during SSM events,'' suggesting 
that the Agency created exemptions for such emissions.\166\ Other 
commenters similarly argued that the EPA created emission limitations 
in the Area Source Boiler rule that do not apply ``continuously'' 
because the numerical limitations do not apply during startup and 
shutdown.\167\ In short, these commenters argued that the EPA is being 
arbitrary and capricious because it is holding emission limitations in 
SIPs to a different and higher standard than emission limitations under 
its own NSPS and NESHAP regulations.
---------------------------------------------------------------------------

    \164\ The mercury and air toxics standards (MATS) rule for power 
plants regulates emissions from new and existing coal- and oil-fired 
electric utility steam generating units (EGUs) under 40 CFR part 63, 
subpart UUUUU.
    \165\ The Area Source Boiler rule regulates industrial, 
commercial and institutional boilers at area sources under 40 CFR 
part 63, subpart JJJJJJ.
    \166\ See MATS rule, requirements during startup, shutdown and 
malfunction, 77 FR 9304 at 9370 (February 16, 2012).
    \167\ See Area Source Boiler rule, notice of final action on 
reconsideration, periods of startup and shutdown, 78 FR 7487 at 7496 
(February 1, 2013).
---------------------------------------------------------------------------

    Response: The EPA disagrees with these commenters. The recent EPA 
rulemaking efforts that commenters claim are at odds with EPA's SIP 
call are completely consistent with the Agency's action today. First, 
as explained in the February 2013 proposal, the EPA has not taken the 
position that sources must be subject to SIP emission limitations that 
are set at the same numerical level at all times, or that are expressed 
as numerical limitations at all times. As the EPA stated, ``[i]f 
justified, the state can develop special emission limitations or 
control measures that apply during startup or shutdown if the source 
cannot meet the otherwise applicable emission limitation in the SIP.'' 
\168\ The EPA's 1999 SSM Guidance articulated that SIP provisions may 
include alternative emission limitations applicable during startup and 
shutdown as part of a continuously applicable emission limitation when 
properly developed and otherwise consistent with CAA requirements. 
Moreover, the EPA recommended specific criteria relevant to the 
creation of such alternative emission limitations. The EPA reiterated 
that guidance in the February 2013 proposal and is providing a 
clarified version of the guidance in this final action. This issue is 
addressed in more detail in section VII.B.2 of this document.
---------------------------------------------------------------------------

    \168\ See February 2013 proposal, 78 FR 12459 at 12488 (February 
22, 2013).
---------------------------------------------------------------------------

    The EPA also disagrees with the assertion that it is holding state 
SIP provisions to a different standard than its own NSPS and NESHAP 
regulations. The EPA notes that SIP emission limitations and NSPS and 
NESHAP emission limitations are, of course, designed for different 
purposes (e.g., to meet the NAAQS versus to reduce emissions of HAPs) 
and have to meet some different statutory requirements (e.g., to be 
RACM versus be standards that are compliant with section 112). However, 
the EPA understands the commenters' claim to be more specifically that 
the Agency is applying a different interpretation of the term 
``emission limitation'' and taking a different approach to the 
treatment of emissions during SSM events in its own regulations, even 
in recent regulations developed subsequent to the Sierra Club decision. 
The EPA believes that this argument reflects a misunderstanding of both 
the February 2013 proposal and what the Agency's own new regulations 
contain.
    The MATS rule and the Area Source Boiler rule in fact illustrate 
how the EPA is creating emission limitations that apply continuously, 
with numerical limitations or combinations of numerical limitations and 
other specific technological control requirements or work practice 
requirements applicable during startup and shutdown, depending upon 
what is appropriate for the source category and the pollutants at 
issue. For example, in the MATS rule the EPA has promulgated 
regulations that impose emission limitations on various subcategories 
of sources to address HAP emissions. To do so, the EPA developed 
emission limitations to address the relevant pollutants using a 
combination of numerical emission limitations and work practices. The 
work practice requirements specifically apply to sources during startup 
and shutdown and are thus components of the continuously applicable 
emission limitations.\169\
---------------------------------------------------------------------------

    \169\ The EPA took final action on a petition for 
reconsideration concerning the MATS rule and the Utility NSPS that 
made certain revisions related to the emission limitations and work 
practices applicable during startup and shutdown. Those revisions 
did not, however, alter the basic structure of the emission 
limitations as numerical limitations, or numerical limitations with 
work practice components during startup and shutdown, depending upon 
the source category and the pollutants at issue. See 79 FR 68777 
(November 19, 2014).
---------------------------------------------------------------------------

    Similarly, in the Area Source Boiler rule \170\ the EPA has imposed 
emission limitations on affected sources for PM, mercury and CO. The 
specific emission limitations that apply vary depending upon the 
subcategory of boiler. The emission limitations include a combination 
of numerical emission limitations and work practice requirements that 
together apply during all modes of source operation. For some 
subcategories, the standards that apply during startup and shutdown 
differ from the standards that apply during other periods of operation. 
This illustrates what the EPA considers the correct approach to 
creating emission limitations: (i) The emission limitation contains no 
exemption for emissions during SSM events; (ii) the component of the 
emission limitation that applies during startup and shutdown is clearly 
stated and obviously is an emission limitation that applies to the 
source; (iii) the component of the emission limitation that applies 
during startup and shutdown meets the applicable stringency level for 
this type of emission limitation (in this case section 112); and (iv) 
the emission limitation contains requirements to make it legally and 
practically enforceable. In short, the Area Source Boiler rule 
established emission limitations that apply continuously, in accordance 
with the requirements of the CAA, and consistent with the court's 
decision in the Sierra Club decision. States with SIP provisions that 
are deficient because they contain automatic or discretionary 
exemptions for emissions during SSM events may wish to consider the 
Agency's own approach when they develop SIP revisions in response to 
this SIP call.
---------------------------------------------------------------------------

    \170\ 78 FR 7487 (February 1, 2013).
---------------------------------------------------------------------------

    f. Comments that section 110(a)(2)(A) authorizes states to have SIP 
provisions with exemptions for emissions during SSM events because they 
are not ``emission limitations'' and are not

[[Page 33896]]

subject to the requirement to be ``continuous.''
    Comment: Section 110(a)(2)(A) requires states to have SIPs that 
include emission limitations for purposes of imposing restrictions on 
sources of emissions in order to attain and maintain the NAAQS and to 
meet other CAA requirements. Some commenters noted that, in addition to 
``emission limitations,'' section 110(a)(2)(A) also explicitly refers 
to ``other control measures, means, or techniques.'' Unlike the term 
``emission limitation,'' which is defined in section 302(k), commenters 
contended that these ``other control[s]'' need not be continuous. 
Accordingly, these commenters argued that emission controls in SIP 
provisions that either contain, or are subject to, SSM exemptions can 
be viewed merely as examples of these ``other control measures, means, 
or techniques'' that are validly included in SIPs and that do not have 
to limit emissions from sources on a continuous basis. Specifically, 
these commenters asserted that the plain text of section 110(a)(2)(A) 
does not require SIPs to include only emission limitations but rather 
requires that SIPs include ``emission limitations,'' ``other control 
measures, means, or techniques,'' or a mixture thereof. Furthermore, 
according to some of these commenters, an interpretation of section 
110(a)(2)(A) that requires all SIP provisions to be ``emission 
limitations,'' and thus subject to the requirement that they be 
continuous, would render the ``other control'' language in the statute 
superfluous.
    Response: The EPA agrees with the commenters that SIPs do not have 
to be composed solely of numerical emission limitations, that SIPs can 
contain other forms of controls in addition to emission limitations and 
that certain forms of controls other than emission limitations may not 
need to apply to sources continuously. However, the EPA disagrees with 
the commenters' conclusion that the mere act of labeling certain SIP 
provisions as ``control measures, means, or techniques'' rather than as 
``emission limitations'' can be a means to circumvent the requirement 
that emission limitations must regulate sources continuously. To the 
extent that there is any ambiguity in the requirements of section 
110(a)(2), it is not reasonable to interpret the statute to allow the 
explicit requirement that emission limitations must be continuous to be 
negated in this fashion.
    As an initial matter, the SIP provisions that contain automatic or 
discretionary exemptions during SSM events at issue in this SIP call 
excuse compliance with requirements that presumably were submitted to 
the EPA as emission limitations, were intended to limit emissions on a 
continuous basis or were otherwise included to ensure that the SIP 
contained continuous emission limitations. All of the SIP provisions at 
issue in this action provide automatic or discretionary exemptions from 
emission limitations that are formulated as restrictions on the 
``quantity, rate, or concentration'' of emissions from affected 
sources, just as section 302(k) describes the purpose of an emission 
limitation. Longstanding EPA regulations applicable to SIPs require 
that states have a control strategy to provide for attainment and 
maintenance of the NAAQS.\171\ The required ``control strategy'' is 
defined to be the combination of measures including, but not limited 
to, ``emission limitations,'' ``emission control measures applicable to 
in use motor vehicles'' and ``transportation control measures'' listed 
in section 108(f).\172\ The regulatory definition of ``emission 
limitation'' applicable to SIP provisions tracks the statutory 
definition of section 302(k) and notably also does not define the term 
to allow exemptions for emissions during SSM events.\173\ To the EPA's 
knowledge, none of the specific SIP provisions that contain or that are 
subject to the automatic or discretionary exemptions at issue in this 
SIP call action were developed by the states with the intention or 
expectation that absent the exemption they would not apply at all times 
when the source is in operation; i.e., they impose restrictions on 
emissions that were intended to apply continuously when the source is 
emitting pollutants. Logically, the states intended the emission 
limitations to impose limits that apply continuously at all times when 
the affected sources are emitting pollutants or else there would have 
been no impetus to include any exemptions for emissions during SSM 
events.
---------------------------------------------------------------------------

    \171\ See, e.g., 40 CFR 51.100.
    \172\ See, e.g., 40 CFR 51.100(n).
    \173\ See 40 CFR 51.100(z).
---------------------------------------------------------------------------

    However, even if the EPA were to accept the commenters' premise 
arguendo--that inclusion of an SSM exemption in a given SIP provision 
turns ``emission limitations'' into ``other control measures, means, or 
techniques,'' this would not be a reasonable reading of the 
requirements of section 110(a)(2)(A) and section 302(k) for several 
reasons. To the extent that either section 110(a)(2)(A) or section 
302(k) is ambiguous with respect to this point, the EPA does not 
interpret the CAA to allow exemptions for emissions during SSM events 
in SIP provisions in the way advocated by the commenters.
    First, section 110(a)(2)(A) explicitly requires that SIPs must 
contain emission limitations as necessary to meet various CAA 
requirements. Section 302(k) requires that such emission limitations 
must limit ``the quantity, rate, or concentrations of emissions of air 
pollutants on a continuous basis.'' Moreover, section 302(k) reiterates 
that the term ``continuous emission limitation'' also specifically 
includes ``any requirement relating to the operation or maintenance of 
a source to assure continuous emission reduction.'' Lest there be 
doubt, section 302(m) provides a definition for the related term 
``means of emission limitation'' as ``a system of continuous emissions 
reduction (including the use of specific technology or fuels with 
specified pollution characteristics).'' In the Sierra Club v. Johnson 
decision, the D.C. Circuit concluded that the statutory definition of 
``emission limitation'' in section 302(k) precludes exemptions for 
emissions during SSM events because such exemptions are inconsistent 
with the requirement for continuous controls.\174\ Given the emphasis 
that the statute places on the requirement that sources be subject to 
continuous emission controls, and given the emphasis that courts have 
placed on the requirement that sources be subject to continuous 
controls on their emissions, the EPA believes that it is illogical that 
the statutory requirement for continuous controls on sources could be 
subverted merely by the act of labeling a given SIP provision a 
``control measure'' rather than an ``emission limitation.'' The 
commenters' argument that if a given SIP provision contains an SSM 
exemption, it is merely a ``control measure[ ], mean[ ], or technique[ 
]'' reduces the explicit requirement for continuous controls on 
emissions to a semantic exercise.
---------------------------------------------------------------------------

    \174\ See Sierra Club v. Johnson, 551 F.3d 1019, 1027-28 (citing 
CAA sections 112(d)(2), 302(k)).
---------------------------------------------------------------------------

    Second, the EPA believes that the commenters' reading of the 
statute to permit SIP provisions to contain an SSM exemption by virtue 
of what it is labeled is incorrect if taken to its logical extreme. The 
commenters' interpretation of section 110(a)(2)(A) would theoretically 
allow a SIP to contain no emission limitations whatsoever, merely a 
collection of requirements labeled ``control measures'' so that sources 
can be excused from having to limit emissions on a continuous basis. 
This result is contrary to judicially approved EPA

[[Page 33897]]

interpretations of prior versions of the CAA as requiring all SIPs to 
include continuously applicable emission limitations and only requiring 
``other'' additional controls ``as may be necessary'' to satisfy the 
NAAQS.\175\ Additionally, this result is contrary to legislative 
history of the 1990 Clean Air Act Amendments, which indicates that in 
slightly revising this portion of section 110(a)(2)(A), Congress 
intended to merely ``combine and streamline'' previously existing SIP 
requirements into a single provision, not to vitiate statutory 
requirements concerning emission limitations.\176\
---------------------------------------------------------------------------

    \175\ See, e.g., Kennecott Copper Corp. v. Train, 526 F.2d 1149, 
1153 (9th Cir. 1975). The current version of section 110(a)(2)(A) is 
admittedly worded differently than the 1970 version. However, for 
purposes of these commenters the critical distinction is not that 
Congress changed the location of the word ``necessary'' but rather 
that Congress changed the subject that ``necessary'' modifies--and 
thus the entire scope of 110(a)(2)(A)--from satisfying the NAAQS to 
meeting ``applicable requirements'' of the entire CAA.
    \176\ See, e.g., S. Rept. 101-228, at 20 (noting that the 
structure of section 110(a)(2)(A) as it appears today reflects 
congressional intent to ``combine and streamline'' previously 
existing SIP requirements into a single provision).
---------------------------------------------------------------------------

    Finally, the EPA's interpretation of the requirements of section 
110(a)(2) does not render the ``other control'' language in the statute 
superfluous as claimed by the commenters. In addition to emission 
limitations, the EPA interprets that section to allow other ``control 
measures, means or techniques'' as contemplated by the statute. For 
example, the EPA's regulations implementing SIP requirements explicitly 
enumerate nine separate types of measures that states may include in 
SIPs.\177\ This list of nine different forms of potential SIP 
provisions to reduce emissions varies broadly, from measures that 
``impose emission charges or taxes or other economic incentives or 
disincentives'' to ``changes in schedules or methods of operation of 
commercial or industrial facilities'' to ``any transportation control 
measure including those transportation measures listed in section 
108(f).'' The EPA made clear that this list is not all-inclusive. In 
addition, the EPA has, when appropriate, approved SIP provisions that 
impose various forms of emissions controls that are not, by definition, 
emission limitations.\178\ Thus, the commenters are in error in their 
belief that the EPA's reading of the statute to require that SIPs 
contain emission limitations that apply continuously ignores the other 
forms of potential measures that section 110(a)(2)(A) authorizes.
---------------------------------------------------------------------------

    \177\ See 40 CFR 51.100(n).
    \178\ See, e.g., 71 FR 7683 (February 14, 2006) (approving as 
BACM the use of ``conservation management practices'' to control 
fugitive dust emissions from agricultural sources, including 
techniques that limit emissions only during certain activities or 
times); 68 FR 56181 (September 30, 2003) (approving as BACM an 
``episodic wood burning curtailment'' program that restricts the use 
of wood-burning stoves based on predicted particulate matter 
concentrations).
---------------------------------------------------------------------------

    Section 110(a)(2) requires SIPs to include enforceable emission 
limitations and other controls ``as necessary or appropriate to meet 
the applicable requirements'' of the CAA. Regardless of whether 
commenters' semantic labeling arguments are valid in the abstract, they 
are not correct with respect to the fundamental CAA requirements for 
SIPs relating to continuous emission limitations. The automatic or 
discretionary exemptions for emissions during SSM events in the SIP 
provisions at issue in this SIP call authorize exemptions from 
statutorily required emission limitations. To the extent that such a 
SIP provision would functionally or legally exempt sources from 
regulation during SSM events, the SIP provision fails to be a 
continuously applicable enforceable emission limitation as required by 
the CAA. The fact that a SIP may also contain ``other control[s]'' as 
advocated by the commenters does not negate the statutory requirement 
that emission limitations must apply continuously.
    g. Comments that the definition of ``emission limitation'' in 
section 302(k) does not require that all forms of emission limitations 
must apply continuously.
    Comment: Section 110(a)(2)(A) requires that SIPs must contain 
emission limitations, and section 302(k) defines the term ``emission 
limitation'' to mean a limit on emissions from a source that applies 
continuously. A number of commenters disagreed that section 302(k) 
requires that all ``emission limitations'' have to be ``continuous.'' 
The commenters argued that section 302(k) establishes two distinct 
categories of emission limitations: (1) Requirements that ``limit[ ] 
the quantity, rate, or concentration of emissions of air pollutants on 
a continuous basis, including any requirement relating to the operation 
or maintenance of a source to assure continuous emission reduction,'' 
and (2) requirements constituting a ``design, equipment, work practice 
or operational standard promulgated under this chapter.'' These 
commenters claimed that only the first purported category is emission 
limitations that must be continuous and that the second purported 
category is emission limitations that do not need to apply 
continuously. Accordingly, these commenters asserted that SIP 
provisions that are rendered noncontinuous by inclusion of exemptions 
for emissions during SSM events are still legally valid ``emission 
limitations'' because they fall within the second category. Other 
commenters separately contended that under section 302(k), SIP 
provisions imposing requirements ``relating to the operation or 
maintenance of sources'' do not need to be continuous, unlike those 
imposing requirements that limit ``the quantity, rate, or concentration 
of emissions or air pollutants.''
    Response: The EPA disagrees with the commenters' view that section 
302(k) establishes two discrete categories of emission limitations, 
only one of which must reduce continuous emissions on a continuous 
basis. The EPA acknowledges that the text of section 302(k) is 
ambiguous with respect to this point, but the Agency does not agree 
with the commenters' interpretation of the statute. The statutory text 
of section 302(k) begins with a catch-all definition of the term 
``emission limitation'' as ``a requirement established by the State or 
the Administrator which limits the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis . . . .'' \179\ The 
EPA believes that the rest of the first sentence in section 302(k), 
beginning with the word ``including,'' is best read as a list of 
examples of types of measures that satisfy this general definition. In 
other words, the remainder of the sentence provide examples of types of 
SIP provisions that could be used to limit emissions on a continuous 
basis, including any design standard, equipment standard, work practice 
standard or operational standard promulgated under the CAA, as well as 
``any requirement relating to the operation or maintenance of a source 
to assure continuous emission reduction.'' However, each of these forms 
of emission limitation would be required to apply at all times, or be 
required to apply in combination at all times, in order to meet the 
fundamental requirement that the emission limitation serves to limit 
emissions from the affected sources continuously. Thus, the EPA 
interprets the term ``emission limitation'' to permit emission 
limitations that are composed of a combination of numerical 
limitations, technological control requirements and/or work practice 
requirements, so long as they are components of an emission limitation 
that applies continuously. This interpretation accords with

[[Page 33898]]

statutory context,\180\ the legislative history regarding the 
definition of ``emission limitation,'' \181\ judicial interpretations 
of section 302(k) \182\ and the EPA's definition of ``emission 
limitation'' in its SIP regulations.\183\ Accordingly, the EPA's 
interpretation of section 302(k) is reasonable.
---------------------------------------------------------------------------

    \179\ CAA section 302(k).
    \180\ See, e.g., CAA section 302(m) (defining ``means of 
emission limitation'' as a ``system of continuous emission 
reduction'').
    \181\ See e.g., H.R. Rep. 95-294, at 92 (1977) (explaining that 
the definition of ``emission limitation,'' like the definition of 
``standard of performance,'' was intended to ``ma[ke] clear that 
constant or continuous means of reducing emissions must be used to 
meet th[ose] requirements''); S. Rep. 95-127, at 94 (explaining that 
the definition of ``emission limitation'' was intended to ``clarify 
the committee's view that the only acceptable basic strategy is one 
based on continuous emission control,'' rather than ``unacceptable'' 
``[i]ntermittent controls or dispersion techniques . . . .'').
    \182\ See, e.g., Sierra Club v. Johnson, 551 F.3d 1019, 1027-28 
(D.C. Cir. 2008).
    \183\ See 40 CFR 51.100(n) (defining ``emission limitation'' as 
a requirement that limits emissions on a continuous basis).
---------------------------------------------------------------------------

    The EPA also disagrees with the commenters who contended that the 
third clause of section 302(k) authorizes exemptions for emissions 
during SSM events in emission limitations. The commenters argued that 
requirements ``relating to the operation or maintenance of sources'' do 
not have to be continuous. The EPA believes that this reading of the 
statute is simply in error, because section 302(k) on its face provides 
that these requirements must ``assure continuous emission reduction.'' 
\184\
---------------------------------------------------------------------------

    \184\ See CAA section 302(k).
---------------------------------------------------------------------------

    h. Comments that exemptions or affirmative defenses are not only 
not prohibited, but are actually required by the CAA because they are 
necessary to make an emission limitation ``reasonable'' or 
``achievable'' for sources that cannot comply during SSM events.
    Comment: Commenters argued that some emission limitations currently 
in SIPs are only ``reasonable'' or technologically ``achievable'' 
because they include exemptions or affirmative defenses applicable to 
emissions during SSM events. According to these commenters, without 
exemptions or affirmative defenses to excuse sources from compliance 
with the limits during SSM events, these emission limitations would not 
be reasonable or achievable as required by law. To support these 
contentions, commenters cited case law from the early 1970s to argue 
that the CAA requires emission limitations in SIP provisions to include 
exemptions or affirmative defenses for SSM events.
    Response: The EPA agrees that SIP provisions should impose emission 
limitations that are reasonable and achievable by sources, so long as 
they are also consistent with the applicable legal requirements for 
that type of provision. The EPA acknowledges that in some cases, 
emission limitations may need to include alternative numerical 
limitations, technological controls or work practices during some modes 
of operation, such as startup and shutdown. As explained in detail in 
the February 2013 proposal and in this action, the EPA interprets the 
CAA to allow SIP provisions to include different numerical limitations 
or other control requirements as components of a continuously 
applicable emission limitation, so long as the SIP provision meets all 
other applicable requirements. However, the EPA disagrees with these 
commenters' conclusions that the need for ``reasonable'' and 
``achievable'' emission limitations provides a legal justification for 
exemptions or affirmative defenses for excess emissions during SSM 
events.
    First, many of the commenters erroneously presupposed that an 
emission limitation must continuously control emissions at the same 
rate, quantity, or concentration at all times. For sources or source 
categories that cannot comply with otherwise applicable emission 
limitations during certain modes of operation, such as startup and 
shutdown, the state may elect to develop alternative emission 
limitations applicable during those events as a component of the SIP 
provision. The EPA has provided recommended criteria for states to use 
in developing appropriate alternative emission limitations. Appropriate 
alternative emission limitations would ensure the existence of 
requirements that limit the quantity, rate or concentration of 
pollutants from the affected sources on a continuous basis, while also 
providing differing limitations tailored specifically to limit 
emissions during specified modes of source operation. As long as those 
differing limitations are components of a continuously applicable 
emission limitation that meets other applicable substantive 
requirements (e.g., is RACT for stationary sources in nonattainment 
areas) and that is legally and practically enforceable, then such 
alternative emission limitations are valid. States are not required to 
create such alternative emission limitations, but to do so is an 
acceptable approach.
    Second, these commenters pointed to no provision of the CAA 
requiring or allowing exemptions or affirmative defenses for SSM 
events. Instead, they contend that D.C. Circuit opinions in Portland 
Cement Association v. Ruckelshaus \185\ and Essex Chemical Corp. v. 
Ruckelshaus \186\ require SIPs to include exemptions for emissions 
during SSM events. As an initial matter, these cases predate amendments 
to the CAA that expressly defined ``emission limitation'' as a 
requirement that continuously limits emissions. Furthermore, even 
accepting these commenters' interpretations of those cases (which as 
explained below, EPA does not), any purported holdings to that effect 
have been further eroded by more recent case law from the D.C. Circuit 
and other courts. Most importantly, the Sierra Club v. Johnson decision 
has reiterated that emission limitations must apply continuously in 
order to comply with section 302(k), and the logic of NRDC v. EPA 
decision indicates that affirmative defense provisions are not 
appropriate because they purport to alter the jurisdiction of the 
courts.\187\
---------------------------------------------------------------------------

    \185\ 486 F.2d 375 (D.C. Cir. 1973).
    \186\ 486 F.2d 427 (D.C. Cir. 1973).
    \187\ See Sierra Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 
2008); NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
---------------------------------------------------------------------------

    In addition to these more recent legal developments, however, the 
two earlier D.C. Circuit cases highlighted by commenters simply did not 
hold what commenters claim that they held. With respect to the Portland 
Cement Association decision, commenters selectively quoted from the 
case for the proposition that the D.C. Circuit had ``acknowledged'' 
that malfunctions are an inescapable aspect of industrial life and that 
EPA must make allowances for malfunctions when promulgating standards. 
The full sentence from the opinion, however, makes clear that the D.C. 
Circuit was merely summarizing the ``concern of manufacturers,'' not 
stating the court's own position.\188\ To the contrary, the EPA 
believes that Portland Cement stands for the broader proposition that a 
system incorporating flexibility is reasonable and consistent with the 
overall intent of the CAA, and the EPA merely ``may'' take such 
flexibility into account.\189\ As relevant to this action, the 
flexibility provided states to ensure continuous controls by developing 
alternative emission limitations is fully consistent with that view of 
the CAA. SIP provisions that include alternative emission limitations 
provide the sort of ``limited safety valve'' contemplated by the courts 
that can serve to make SIP emission limitations more achievable without 
authorizing complete exemptions for

[[Page 33899]]

emissions during SSM events in violation of statutory 
requirements.\190\
---------------------------------------------------------------------------

    \188\ Portland Cement Ass'n, 486 F.2d at 398.
    \189\ Id. at 399.
    \190\ Id. (citing International Harvester, 478 F.2d 615, 641 
(D.C. Cir. 1973)).
---------------------------------------------------------------------------

    Commenters also cited Essex Chemical Corp. for the proposition that 
SSM exemptions are necessary to ensure that standards are reasonable. 
This court decision, however, also did not hold that emission 
limitations must provide exemptions or affirmative defenses for excess 
emissions during SSM events. To the contrary, the petitioners' 
complaint in Essex Chemical Corp. was that EPA had ``fail[ed] to 
provide that lesser standards, or no standards at all, should apply 
when the stationary source is experiencing startup, shutdown, or 
mechanical malfunctions through no fault of the manufacturer.'' \191\ 
It was these variant provisions that, in the court's opinion, 
``appear[ed] necessary'' to ensure that the standards before it were 
reasonable.\192\ Again, the EPA believes that emission limitations in 
SIP provisions may include alternative emission limitations that can 
provide those ``lesser standards'' that apply during startup and 
shutdown events consistent with the court's opinion but also ensure 
that emissions are continuously limited as required by the 1977 CAA 
Amendments defining ``emission limitation.''
---------------------------------------------------------------------------

    \191\ Essex Chem. Corp v. Ruckelshaus, 486 F.2d at 433 (emphasis 
added).
    \192\ See id.
---------------------------------------------------------------------------

    As a legal matter, the court in Essex Chemical was reviewing a 
specific ``never to be exceeded'' standard for new and modified sources 
and addressed only whether the EPA's failure to provide some form of 
flexibility during SSM events was supported by the record; \193\ the 
court was not interpreting whether the CAA inherently required such 
exemptions (rather than alternative limits) regardless of future 
developments in technology. Accordingly, the D.C. Circuit ultimately 
remanded the challenged standards to the EPA for reconsideration, not 
because SSM exemptions are mandatory but rather because of comments 
made by the EPA Acting Administrator and deficiencies identified in the 
administrative record with respect to ``never to be exceeded'' limits 
for those specific standards. In short, the Essex Chemical court did 
not hold that the CAA ``requires'' emission limitations to include 
exemptions for emissions during SSM events as suggested by commenters.
---------------------------------------------------------------------------

    \193\ Id. (``the record does not support the `never to be 
exceeded' standard currently in force'').
---------------------------------------------------------------------------

    Furthermore, the EPA notes that the most salient legal holding of 
Essex Chemical with respect to achievability is not what the court said 
about the circumstances peculiar to the EPA's development of those 
specific standards but rather is the court's holding that standards of 
performance can be ``achievable'' even if there is no facility 
``currently in operation which can at all times and under all 
circumstances meet the standards . . . .'' \194\ Thus, the decision 
supports the EPA's conclusion that the CAA requires appropriately drawn 
emission limitations that apply on a continuous basis. As explained in 
section IV of this document, SIP provisions also cannot include the 
affirmative defenses advocated by commenters, because those are 
inconsistent with CAA provisions concerning the jurisdiction of the 
courts.
---------------------------------------------------------------------------

    \194\ Essex Chem. Corp v. Ruckelshaus, 486 F.2d 427, 433 (D.C. 
Cir. 1973).
---------------------------------------------------------------------------

    i. Comments that the EPA is requiring that all SIP emission 
limitations must be ``numerical'' at all times and set at the same 
numerical level at all times.
    Comment: Many commenters on the February 2013 proposal evidently 
believed that the EPA was proposing an interpretation of the term 
``emission limitation'' under section 302(k) that would requires all 
SIP provisions to impose numerical emission limits, and that such 
limits must be set at the same numerical level at all times. These 
commenters argued that numerical emission limitations are not required 
by the text of section 302(k). For example, commenters pointed to 
section 302(k)'s use of ``work practice or operational standard[s]'' as 
evidence that an emission limitation may be composed of more than 
merely numerical criteria. These commenters also reiterated their view 
that section 302(k) allows for or requires alternative limits during 
periods of SSM, including non-numerical alternative limits such as work 
practice or operational standards.
    Response: At the outset, the EPA notes that it did not intend to 
imply that all emission limitations in SIP provisions must be expressed 
numerically, or that they must be set at the same numerical level for 
all modes of source operation. To the contrary, the EPA intended to 
indicate that states may elect to create emission limitations that 
include alternative emission limitations that apply during certain 
modes of source operation, such as startup and shutdown. This was the 
reason for inclusion of the recommended criteria for states to develop 
appropriate alternative emission limitations applicable during startup 
and shutdown in section VII.A of the February 2013 proposal. The EPA 
has provided similar recommended criteria in this final action (see 
section VII.B.2 of this document). The EPA agrees that neither section 
110(a)(2)(A) nor section 302(k) inherently requires that SIP emission 
limitations must be expressed numerically. Furthermore, section 302(k) 
does not itself require imposition of numerical limitations or 
foreclose the use of higher numerical levels, specific technological 
controls or work practices during certain modes of operation.
    Although some CAA programs may require or impose a presumption that 
emission limitations be expressed numerically, the text of section 
110(a)(2)(A) and section 302(k) does not expressly state a preference 
for emission limitations that are in all cases numerical in form.\195\ 
Rather, as many commenters pointed out, the critical aspect of an 
emission limitation in general is that it be a ``requirement . . . 
which limits the quantity, rate, or concentration of emissions of air 
pollutants on a continuous basis . . . .'' \196\ Accordingly, although 
other regulatory requirements may also apply, a non-numerical design 
standard, equipment standard, work practice standard or operational 
standard could theoretically meet the definition of ``emission 
limitation'' for purposes of section 302(k) if it continuously limited 
the quantity, rate or concentration of air pollutants.\197\ By 
contrast, if a non-numerical requirement does not itself (or in 
combination with other components of the emission limitation) limit the 
quantity, rate or concentration of air pollutants on a continuous 
basis, then the non-numerical standard (or overarching requirement) 
does not meet the statutory definition of an emission limitation under 
section 302(k).
---------------------------------------------------------------------------

    \195\ Numerical requirements or preferences for some emission 
limitations flow from substantive requirements of specific CAA 
programs, which are incorporated into section 110(a)(2)(A) by the 
requirement that SIPs ``include enforceable emission limitations . . 
. as may be necessary or appropriate to meet the applicable 
requirements of'' the CAA. CAA section 110(a)(2)(A).
    \196\ See, e.g., id., section 112(h)(4).
    \197\ For example, emission limitations must meet the 
requirements of various substantive provisions of the CAA and must 
be legally and practically enforceable.
---------------------------------------------------------------------------

    Finally, the EPA does not believe that section 110(a)(2)(A) or 
section 302(k) mandates that an emission limitation be composed of a 
single, uniformly applicable numerical emission limitation. As the EPA 
stated in the February 2013 proposal, ``[i]f sources in fact cannot 
meet the otherwise applicable emission limitations during planned 
events such as startup and shutdown, then an air agency can develop 
specific alternative

[[Page 33900]]

requirements that apply during such periods, so long as they meet other 
applicable CAA requirements.'' \198\ As explained in the EPA's response 
in section VII.A.3 of this document regarding the meaning of the 
statutory term ``continuous,'' the critical aspect for purposes of 
section 302(k) is not whether the emission limitation is expressed as a 
static versus variable numerical limitation but rather whether as a 
whole it constitutes a requirement that limits emissions on a 
continuous basis. Furthermore, any emission limitation must also meet 
all other applicable CAA requirements concerning stringency and 
enforceability.
---------------------------------------------------------------------------

    \198\ 78 FR 12459 at 12471.
---------------------------------------------------------------------------

    j. Comments that an emission limitation can be ``continuous'' even 
if it has different numerical limitations applicable during some modes 
of source operation or has a combination of numerical emission 
limitations and specific control technologies or work practices 
applicable during other modes of operation.
    Comment: Several commenters argued that an emission limitation can 
be ``continuous'' under section 302(k) even if it provides different 
substantive requirements applicable during SSM events. One commenter 
illustrated this position with a hypothetical:

    [W]hile Section 302 requires ``emission limits'' to be 
``continuous,'' it does not specify . . . that the same ``emission 
limit'' must apply at all times. That is, if a state chooses to 
require sources to comply with a 40% opacity limit during steady-
state operations, the Act does not then require the state to apply 
that 40% limit at all times, including startup, shutdown and 
malfunction events.

    Commenters pointed to a number of sources as justification for this 
position, including the text of section 302(k), relevant case law, 
legislative history of the 1977 CAA Amendments, prior EPA 
interpretations, and practical concerns.
    Response: The EPA agrees with these commenters' conclusion that an 
``emission limitation'' under section 302(k) does not need to be 
expressed as a static, inflexible limit on emissions. Rather, a SIP 
provision qualifying as an ``emission limitation'' consistent with 
section 302(k) must merely limit ``the quantity, rate, or 
concentration'' of emissions, and must do so ``on a continuous basis.'' 
The critical aspect for purposes of section 302(k) is that the SIP 
provision impose limits on emissions on a continuous basis, regardless 
of whether the emission limitation as a whole is expressed numerically 
or as a combination of numerical limitations, specific control 
technology requirements and/or work practice requirements, and 
regardless of whether the emission limitation is static or variable. 
For example, so long as the SIP provision meets other applicable 
requirements, it may impose different numerical limitations for startup 
and shutdown.
    The EPA also agrees that the text of section 302(k) does not 
require states to impose emission limitations that include a static, 
inflexible standard. Rather, the term ``emission limitation'' is merely 
defined as a ``requirement established by the State or the 
Administrator which limits the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis. . . .'' The 
continuous limits imposed by emission limitations are a fundamental 
distinction between emission limitations and the other control 
measures, means or techniques that may also limit emissions.\199\ The 
text of section 302(k), however, does not distinguish between a 
variable or static ``requirement'' that continuously limits emissions--
all that is required is that the emissions are limited on a continuous 
basis.
---------------------------------------------------------------------------

    \199\ See CAA section 110(a)(2)(A).
---------------------------------------------------------------------------

    This interpretation is consistent with prior EPA interpretations of 
section 302(k), as well as relevant case law. In Kamp v. Hernandez, the 
U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) upheld the 
EPA's interpretation of ``continuous'' in section 302(k), as requiring 
that ``some limitation on emissions, although not necessarily the same 
limitation, is always imposed'' on the source.\200\ More recently, the 
D.C. Circuit favorably cited Kamp when holding that section 302(k) 
requires emission standards to limit emissions on a continuous basis 
and precludes exemptions for emissions during SSM events.\201\
---------------------------------------------------------------------------

    \200\ Kamp v. Hernandez, 752 F.2d 1444, 1452-53 (9th Cir. 1985) 
(citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 
837 (1984)) (upholding EPA's ``broader definition of `continuous' '' 
under section 302(k)).
    \201\ Sierra Club v. Johnson, 551 F.3d 1019, 1027-28 (D.C. Cir. 
2008) (quoting Kamp, 752 F.2d at 1452).
---------------------------------------------------------------------------

    Legislative history confirms that Congress was primarily concerned 
that there be constant or continuous means of reducing emissions--not 
that the nature of those controls could not be different during 
different modes of operation.\202\ For example, legislative history 
from the 1977 CAA Amendments states that Congress added section 
302(k)'s definition of ``emission limitation'' to:
---------------------------------------------------------------------------

    \202\ See, e.g., H.R. Rep. 95-294, at 92 (1977) (explaining that 
the definition of ``emission limitation,'' like the definition of 
``standard of performance,'' was intended to ``ma[ke] clear that 
constant or continuous means of reducing emissions must be used to 
meet th[ose] requirements''); S. Rep. 95-127, at 94 (explaining that 
the definition of ``emission limitation'' was intended to ``clarify 
the committee's view that the only acceptable basic strategy is one 
based on continuous emission control,'' rather than ``unacceptable'' 
``[i]ntermittent controls or dispersion techniques . . . .'').

. . . ma[ke] clear that constant or continuous means of reducing 
emissions must be used to meet these requirements. By the same 
token, intermittent or supplemental controls or other temporary, 
periodic, or limited systems of control would not be permitted as a 
final means of compliance.\203\
---------------------------------------------------------------------------

    \203\ H.R. Rep. 95-294, at 92 (1977), as reprinted in 1977 
U.S.C.C.A.N. 1077, 1170); Sierra Club v. Johnson, 551 F.3d at 1027 
(quoting the same); Kamp v. Hernandez, 752 F.2d at 1453-54 (quoting 
the same).

    Although this legislative history demonstrates congressional intent 
that any ``emission limitation'' would require limits on emissions at 
all times, this history does not necessarily indicate that the emission 
limitation must consist of a single static numerical limitation. 
Accordingly, this legislative history is consistent with the EPA's view 
that section 302(k) requires continuous limits on emissions and that 
variable (albeit still continuous) limits on emissions can qualify as 
an emission limitation for purposes of section 302(k).
    Finally, although the EPA agrees with these commenters' conclusion, 
the EPA does not agree with these commenters' view that practical 
concerns require states in all cases to establish alternative emission 
limitations for modes of operation such as startup and shutdown within 
any continuously applicable emission limitation. Principles of 
cooperative federalism incorporated into section 110 allow states great 
leeway in developing SIP emission limitations, provided those 
limitations comply with applicable legal requirements.\204\ States are 
thus not required to establish alternative emission limitations for any 
sources during startup and shutdown, but they may elect to do so. 
Neither the definition of ``emission limitation'' in section 302(k) nor 
the requirements of section 110(a)(2)(A) explicitly require states to 
develop emission limitations that include alternative emission 
limitations for periods of SSM, just as they do not explicitly preclude 
states from doing so.
---------------------------------------------------------------------------

    \204\ As discussed above and elsewhere in this document, those 
requirements include satisfying the definition of ``emission 
limitation'' under CAA section 302(k), and being ``enforceable'' in 
accordance with section 110(a)(2)(A).

---------------------------------------------------------------------------

[[Page 33901]]

    k. Comments that an emission limitation can be ``continuous'' even 
if it includes periods of exemptions from the emission limitation.
    Comment: Commenters asserted that a requirement limiting emissions 
can be ``continuous'' even if a SIP provision includes periods of 
exemption from that limit. For example, some commenters contended that 
SSM exemptions only excuse compliance with emission limitations for a 
``short duration,'' or ``brief'' period of time, and that these 
purportedly ephemeral interruptions should not be viewed as rendering 
the requirement noncontinuous. Other commenters contended that the EPA 
misinterpreted portions of the D.C. Circuit's opinion in Sierra Club v. 
Johnson,\205\ interpreting section 302(k). Specifically, this group of 
commenters claimed that because the holding of that case was based on a 
combined reading of sections 112 and 302(k), the court's interpretation 
of the word ``continuous'' in section 302(k) does not extend outside 
the context of section 112. This included one commenter who suggested, 
in a one-sentence footnote, that ``[i]n the cooperative-federalism 
context''--presumably of section 110--``the standard of flexibility 
that Congress gave the States with respect to selecting the elements of 
their SIPs is not necessarily the same standard Congress set to govern 
EPA's responsibility to establish the NAAQS or section 112 standards.'' 
Still other commenters further argued that the EPA mischaracterized 
legislative history discussing ``continuous'' in section 302(k). 
According to these commenters, the context of legislative history on 
section 302(k) indicates that Congress did not intend for the word 
``continuous'' to be given its plain meaning but rather intended to use 
``continuous'' in relation only to specific types of intermittent 
controls.
---------------------------------------------------------------------------

    \205\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Response: The EPA disagrees with these commenters. First, 
commenters' interpretation would contravene the plain meaning of 
``continuous.'' Section 302(k) defines ``emission limitation'' as a 
requirement that ``limits the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis. . . .'' \206\ 
Although the word ``continuous'' is not separately defined in the Act, 
its plain and unambiguous meaning is ``uninterrupted.'' \207\ 
Accordingly, to the extent that a SIP provision provides for any period 
of time when a source is not subject to any requirement that limits 
emissions, the requirements limiting the source's emissions by 
definition cannot do so ``on a continuous basis.'' Such a source would 
not be subject to an ``emission limitation,'' as that term is defined 
under section 302(k). The same principle applies even for ``brief'' 
exemptions from limits on emissions, because such exemptions 
nevertheless render the emission limitation noncontinuous.
---------------------------------------------------------------------------

    \206\ CAA section 302(k).
    \207\ See Webster's Third New International Dictionary 493-94 
(Phillip Babcock Gove ed., Merriam-Webster 1993) (defining 
``continuous'').
---------------------------------------------------------------------------

    Second, the EPA disagrees with commenters' interpretation of the 
D.C. Circuit's opinion in Sierra Club. While the court's ultimate 
decision was based on ``sections 112 and 302(k) . . . read together,'' 
\208\ the court's analysis of what makes a standard ``continuous'' was 
based on section 302(k) alone.\209\ Although the precise components of 
an emission limitation or standard may expand depending on which other 
provisions of the CAA are applicable, the bedrock definition for what 
it means to be an ``emission limitation'' under section 302(k) does 
not. Congress appeared to share the EPA's view that section 302(k) 
provides a bedrock definition of ``emission limitation'' applicable 
``to all emission limitations under the act, not just to limitations 
under sections 110, 111, or 112 of the act.'' \210\ Accordingly, the 
D.C. Circuit's interpretation of section 302(k) applies equally in the 
context of SIP provisions developed by states as in the context of MACT 
standards developed by the EPA, even if additional requirements may be 
different.\211\
---------------------------------------------------------------------------

    \208\ Sierra Club, 551 F.3d at 1027.
    \209\ See id. (quoting H.R. Rep. 95-294, at 92 (1977), as 
reprinted in 1977 U.S.C.C.A.N. 1077, 1170); see also Kamp v. 
Hernandez, 752 F.2d at 1453-54 (quoting the same and coming to the 
same conclusion).
    \210\ See H.R. 95-294, at 92 (1977); see also section 302 
(stating that the definitions appearing therein apply ``[w]hen used 
in this chapter'').
    \211\ The fact that CAA section 110 incorporates principles of 
cooperative federalism does not inevitably mean that the definition 
of ``emission limitation'' under section 302(k) changes depending on 
whether it is applied in the context of section 110 versus section 
112. Accordingly, in the context of judicial interpretation of a 
statute, the U.S. Supreme Court has held that judges cannot ``give 
the same statutory text different meanings in different cases.'' 
Clark v. Martinez, 543 U.S. 371, 386 (2005). The EPA believes that 
the text and legislative history of section 302(k) evince 
congressional intent to consistently apply the definition of 
``emission limitation'' under section 302(k) rather than to develop 
an inconsistent interpretation peculiar to section 110.
---------------------------------------------------------------------------

    Finally, the EPA rejects commenters' contention that section 
302(k)'s legislative history indicates that use of the word 
``continuous'' in the definition of ``emission limitation'' was merely 
intended to prevent the use of intermittent controls or, even more 
narrowly, only dispersion techniques. While legislative history of the 
1977 Amendments discusses at length the concerns associated with these 
types of controls, section 302(k) was not intended to merely prevent 
the narrow problem of intermittent controls. To the contrary, the House 
Report states that under section 302(k)'s definition of emission 
limitation, ``intermittent or supplemental controls or other temporary, 
periodic, or limited systems of control would not be permitted as a 
final means of compliance.'' \212\
---------------------------------------------------------------------------

    \212\ H.R. 95-294, at 92 (emphasis added).
---------------------------------------------------------------------------

    In explaining congressional intent behind adopting a statutory 
definition of ``emission limitation,'' the House Report articulated a 
rationale broader than would apply if Congress had merely intended to 
prohibit the tall stacks and dispersion techniques that commenters 
claim were targeted: ``Each source's prescribed emission limitation is 
the fundamental tool for assuring that ambient standards are attained 
and maintained. Without an enforceable emission limitation which will 
be complied with at all times, there can be no assurance that ambient 
standards will be attained and maintained.'' \213\ By contrast, 
Congress criticized limitations structured in ways that could not 
``provide assurances that the emission limitation will be met at all 
times,'' or that would sometimes allow the ``emission limitation [to] 
be exceeded, perhaps by a wide margin . . . .'' \214\ Such flaws 
``would defeat the remedy provision provided by section 304 of the act 
which allows citizens to assure compliance with emission limitations 
and other requirements of the act.'' \215\ Exemptions for emissions 
during SSM events have the same effects.\216\
---------------------------------------------------------------------------

    \213\ Id. (emphasis added). The Senate Report expressed a 
similar sentiment. See S. Rep. No. 95-127, at 94-95 (1977) 
(explaining that the definition of ``emission limitation'' was 
intended ``to clarify the committee's view that the only acceptable 
basic strategy [for emission limitations in SIPs] is one based on 
continuous emission control'').
    \214\ See H.R. 95-294, at 92.
    \215\ See id.
    \216\ See, e.g., NRDC v. EPA, 749 F.3d 1055, 1064 (D.C. Cir. 
2014) (holding that an affirmative defense for excess emissions 
during malfunctions contradicts the requirement that an emission 
limitation be ``continuous'').
---------------------------------------------------------------------------

    In adopting section 302(k)'s definition of ``emission limitation,'' 
Congress did not merely intend to prohibit the use of intermittent 
controls as final compliance strategies--much less intermittent 
controls as narrowly defined by commenters to mean only dispersion 
techniques and certain ``tall stacks.'' Rather, Congress intended to 
eliminate the fundamental problems

[[Page 33902]]

that were illustrated by use of those controls.\217\ SSM exemptions and 
affirmative defenses raise many of the same problems, and addressing 
those problems through this action fully accords with section 302(k)'s 
legislative history.
---------------------------------------------------------------------------

    \217\ See, e.g., H.R. 95-294, at 94 (noting that the provision 
was intended to overcome ``objections'' to such measures, not merely 
the measures themselves); id. at 92 (indicating that the problems 
arise from ``temporary, periodic, or limited systems of control'' 
generally, not merely dispersion techniques or tall stacks).
---------------------------------------------------------------------------

    l. Comments that the ``as may be necessary or appropriate'' 
language in section 110(a)(2)(A) per se authorizes states to create 
exemptions in SIP emission limitations.
    Comment: Some commenters contended that section 110(a)(2)(A) merely 
requires states to include emission limitations and other control 
measures in their SIPs ``as may be necessary or appropriate.'' These 
commenters interpreted that language as a broad delegation of 
discretion to states to develop SIP provisions that are necessary or 
appropriate to satisfy the particular needs of a state, as judged 
solely by that state. Some of the commenters argued that the EPA's 
interpretation of ``as may be necessary or appropriate'' would, in all 
circumstances, improperly substitute the EPA's judgment for that of the 
state concerning what emission limitations are necessary or 
appropriate. One commenter highlighted the EPA's proposal to deny the 
Petition with respect to a specific SIP provision of the South Carolina 
SIP that entirely exempts a source category from regulation.\218\ 
According to this commenter, if the ``as may be necessary or 
appropriate'' language grants states the authority to exempt a source 
category from regulation entirely, then it must allow states to exempt 
sources selectively during SSM events.
---------------------------------------------------------------------------

    \218\ See 78 FR 12459 at 12512 (citing S.C. Code Ann. Regs. 61-
62.5 St 5.2(I)(b)(14)).
---------------------------------------------------------------------------

    Some commenters further argued that regardless of what the terms 
``emission limitations'' or ``other control measures, means, or 
techniques'' mean, section 110(a)(2)(A) only requires states to include 
such emission controls in SIPs ``as may be necessary or appropriate'' 
to meet the NAAQS, or some requirement germane to attainment of the 
NAAQS, such as various technology-based standards or general principles 
of enforceability. Commenters also disagreed with the EPA's purported 
interpretation that the statutory phrase ``as may be necessary'' only 
qualifies what ``other control[s]'' are required, rather than also 
qualifying what emission limitations are required. According to these 
commenters, that interpretation is a vestige of the 1970 CAA and was 
foreclosed by textual changes in the 1977 CAA Amendments or, 
alternatively, the 1990 CAA Amendments.
    Response: The EPA disagrees with the commenters' interpretation of 
the ``as may be necessary or appropriate'' language of section 
110(a)(2)(A). As an initial matter, those commenters contending that 
section 110(a)(2)(A) is only concerned with what is ``necessary or 
appropriate'' to attain and maintain the NAAQS (or some requirement 
germane to the NAAQS) ignore the plain language of section 
110(a)(2)(A). While the predecessor provisions to section 110(a)(2)(A) 
prior to the 1990 CAA Amendments did indeed speak in terms of emissions 
controls ``necessary to insure attainment and maintenance of [the 
NAAQS],'' \219\ the statute in effect today requires controls 
``necessary or appropriate to meet the applicable requirements of this 
chapter,'' \220\--i.e., to meet the requirements of the CAA as a whole. 
Thus, at a minimum, the EPA interprets the phrase ``as may be necessary 
or appropriate'' to include what is necessary or appropriate to meet 
legal requirements of the CAA, including the requirement that emission 
limitations must apply on a continuous basis.
---------------------------------------------------------------------------

    \219\ See, e.g., Clean Air Act of 1970, Public Law 91-604, 
section 4(a), 84 Stat. 1676, 1680 (December 31, 1970).
    \220\ Section 110(a)(2)(A).
---------------------------------------------------------------------------

    Regardless of whether all SIPs must always contain emission 
limitations, the text of the CAA is clear that the EPA is at a minimum 
tasked with determining whether SIPs include all emission limitations 
that are ``necessary'' (i.e., required) ``to meet the applicable 
requirements of'' that CAA. Broadly speaking, this requires that the 
EPA determine whether the SIP meets the basic legal requirements 
applicable to all SIPs (e.g., the requirements of section 110(a)(2)(A) 
through (M)), whether the SIP contains emission limitations necessary 
to meet substantive requirements of the Act (e.g., RACT-level controls 
in nonattainment areas) and whether all emission limitations and other 
controls, as well as the schedules and timetables for compliance, are 
legally and functionally enforceable.
    In every state subject to this SIP call, the EPA has previously 
concluded in approving the existing SIP provisions that the emission 
limitations are necessary to comply with legal requirements of the CAA. 
The states in question would not have developed and submitted them, and 
the EPA would not have approved them, unless the state and the EPA 
considered those emission limitations fulfilled a CAA requirement in 
the first instance. However, the automatic and discretionary exemptions 
for emissions during SSM events in the SIP provisions at issue in this 
action render those necessary emission limitations noncontinuous, and 
thus not meeting the statutory definition of ``emission limitations'' 
as defined in section 302(k). Accordingly, regardless of whether all 
SIPs must always include emission limitations, these specific SIP 
provisions fail to meet a fundamental requirement of the CAA because 
they do not impose the continuous emission limitations required by the 
Act.
    The EPA also disagrees with the argument raised by commenters that 
its denial of the Petition with respect to a South Carolina SIP 
provision supports the validity of SSM exemptions in SIP emission 
limitations.\221\ In that situation, the state determined that 
regulating the source category at issue was not a necessary or 
appropriate means of meeting the requirements of the CAA. The EPA's 
approval of that provision indicates that the Agency agreed with that 
determination. This factual scenario is not the same as one in which 
the state has determined that regulation of the source category is 
necessary or appropriate to meet CAA requirements. Once the 
determination is made that the source category must or should be 
regulated, then the SIP provisions developed by the state to regulate 
the source must meet applicable requirements. These include that any 
limits on emissions must be consistent with CAA requirements, including 
the requirement that any emission limitation limit emissions on a 
continuous basis. The EPA agrees that a state can validly determine 
that regulation of a source category is not necessary, so long as this 
is consistent with CAA requirements. This is not the same as allowing 
impermissible exemptions for emissions from a source category that must 
be regulated.
---------------------------------------------------------------------------

    \221\ See 78 FR 12459 at 12512 (citing S.C. Code Ann. Regs. 61-
62.5 St 5.2(I)(b)(14)).
---------------------------------------------------------------------------

    Finally, the EPA does not agree with commenters' allegations that 
that the EPA's interpretation of section 110(a)(2)(A) eliminates the 
states' discretion to take local concerns into account when developing 
their SIP provisions. Rather, for reasons discussed in more detail in 
the EPA's response in section V.D.2 of this document regarding 
cooperative federalism, the EPA's interpretation is

[[Page 33903]]

fully consistent with the principles of cooperative federalism codified 
in the CAA. As courts have concluded, although Congress provided states 
with ``considerable latitude in fashioning SIPs, the CAA `nonetheless 
subjects the States to strict minimum compliance requirements' and 
gives EPA the authority to determine a state's compliance with the 
requirements.'' \222\ This interpretation is also consistent with 
congressional intent that the EPA exercise supervisory responsibility 
to ensure that, inter alia, SIPs satisfy the broad requirements that 
section 110(a)(2) mandates that SIPs ``shall'' satisfy.\223\ Where the 
EPA determines that a SIP provision does not satisfy legal 
requirements, the EPA is not substituting its judgment for that of the 
state but rather is determining whether the state's judgment falls 
within the wide boundaries of the CAA.
---------------------------------------------------------------------------

    \222\ Michigan v. EPA, 213 F.3d 663, 687 (D.C. Cir. 2000) 
(quoting Union Elec. Co. v. EPA, 427 U.S. 246, 256-57 (1976)).
    \223\ With respect to section 110(a)(2)(A), this means that a 
SIP must at least contain legitimate, enforceable emission 
limitations to the extent they are necessary or appropriate ``to 
meet the applicable requirements'' of the Act. Likewise, SIPs cannot 
have enforcement discretion provisions or affirmative defense 
provisions that contravene the fundamental requirements concerning 
the enforcement of SIP provisions.
---------------------------------------------------------------------------

    m. Comments that a ``general duty'' provision--or comparable 
generic provisions that require sources to ``exercise good engineering 
judgment,'' to ``minimize emissions'' or to ``not cause a violation of 
the NAAQS''--inoculate or make up for exemptions in specific emission 
limitations that apply to the source.
    Comment: Numerous commenters argued that even if some of the SIP 
provisions with SSM exemptions identified in this SIP call are not 
themselves emission limitations, they are nevertheless components of 
valid emission limitations. According to these commenters, some SIPs 
contain separate ``general duty'' provisions that are not affected by 
SSM exemptions and thus have the effect of limiting emissions from 
sources during SSM events that are explicitly exempted from the 
emission limitations in the SIP. These general-duty provisions vary, 
but most of them: (1) Instruct sources to ``minimize emissions'' 
consistent with good air pollution control practices, (2) prohibit 
sources from emitting pollutants that cause a violation of the NAAQS, 
or (3) prohibit source operators from ``improperly operating or 
maintaining'' their facilities.
    Commenters contended that these general-duty provisions are 
requirements that--either alone or in combination with other 
requirements--have the effect of limiting emissions on a continuous 
basis. In other words, the commenter asserted that these general-duty 
provisions impose limits on emissions during SSM events, when the 
otherwise applicable controls no longer apply. According to these 
commenters, SSM exemptions that excuse noncompliance with typical 
controls do not interrupt the continuous application of an ``emission 
limitation,'' because these general-duty provisions elsewhere in the 
SIP or in a separate permit are part of the emission limitation and 
apply even during SSM events.
    Some commenters further argued that some SSM exemptions themselves 
demonstrate that sources remain subject to general-duty provisions 
during SSM events. These SSM exemptions require sources seeking to 
qualify for the exemption to demonstrate that, inter alia, they were at 
the time complying with certain general duties. Accordingly, these 
commenters contended that the SSM exemption itself demonstrates that 
sources remain subject to requirements that limit their emissions 
during SSM events, even when the source is excused from complying with 
other components of the overarching emission limitation.
    Finally, as evidence that these general-duty clauses must be 
permissible under the CAA, some commenters pointed to similar federal 
requirements established by the EPA under the NSPS and NESHAP 
programs.\224\ These commenters argued that the D.C. Circuit's decision 
in Sierra Club v. Johnson \225\ was limited to circumstances unique to 
section 112 and does not support a per se prohibition on general-duty 
clauses operating as ``emission limitations.''
---------------------------------------------------------------------------

    \224\ See, e.g., 40 CFR 63.6(e)(3).
    \225\ 551 F.3d 1019, 1027-28 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Response: The EPA disagrees with these comments. As described 
elsewhere in this response to comments, all ``emission limitations'' 
must limit emissions of air pollutants on a continuous basis.\226\ The 
specific requirements of a SIP emission limitation must be discernible 
on the face of the provision, must meet the applicable substantive and 
stringency requirements of the CAA and must be legally and practically 
enforceable. The general-duty clauses identified by these commenters 
are not part of the putative emission limitations contained in these 
SIP provisions. To the contrary, these general-duty clauses are often 
located in different parts of the SIP and are often not cross-
referenced or otherwise identified as part of the putative continuously 
applicable emission limitation.
---------------------------------------------------------------------------

    \226\ CAA section 302(k).
---------------------------------------------------------------------------

    Furthermore, the fact that a SIP provision includes prerequisites 
to qualifying for an SSM exemption does not mean those prerequisites 
are themselves an ``alternative emission limitation'' applicable during 
SSM events. The text and context of the SIP provisions at issue in this 
SIP call action make clear that the conditions under which sources 
qualify for an SSM exemption are not themselves components of an 
overarching emission limitation--i.e., a requirement that limits 
emissions of air pollutants from the affected source on a continuous 
basis. Rather, these provisions merely identify the circumstances when 
sources are exempt from emission limitations.
    Reviewing an example of the SIP provisions cited by commenters is 
illustrative of this point. For example, several commenters pointed to 
provisions in Alabama's SIP that excuse a source from complying with an 
otherwise applicable emission limitation only when the permittee ``took 
all reasonable steps to minimize emissions'' and the ``permitted 
facility was at the time being properly operated.'' According to 
commenters, the general duties in this provision--to take reasonable 
steps to minimize emissions, and to properly operate the facility--
ensure that even during SSM events, the permittee remains subject to 
requirements limiting emissions.
    However, a review of the provisions themselves in context--not 
selectively quoted--reveals that these general-duty provisions were 
included in the SIP not as components of an emission limitation but 
rather as components of an exception to that emission limitation. In 
order to qualify, the SIP requires the permittee to have taken ``all 
reasonable steps to minimize levels of emissions that exceeded the 
emission standard'' \227\--an acknowledgement that the emissions to be 
``minimize[d]'' are those that ``exceed[]'' (i.e., go beyond) the 
required limits of ``the emission standard.'' In case there were any 
doubt that the general-duty provisions identified are elements of an 
exemption from an emission limitation, rather than components of the 
emission limitation itself, the provisions apply during what the 
Alabama SIP calls ``[e]xceedances of emission limitations'' \228\ and 
are found within a

[[Page 33904]]

broader section addressing ``Exceptions to violations of emission 
limitations.'' \229\ By exempting sources from compliance with ``the 
emission standard,'' these exemptions render the SIP emission 
limitation noncontinuous, contrary to section 302(k).\230\
---------------------------------------------------------------------------

    \227\ Ala. Admin. Code Rule 335-3-14-.03(h)(2)(ii)(III) 
(emphasis added).
    \228\ Id. at 335-3-14-.03(h)(2)(ii) (emphasis added).
    \229\ Id. at 335-3-14-.03(h) (emphasis added).
    \230\ See CAA section 302(k) (defining ``emission limitation'' 
and ``emission standard'').
---------------------------------------------------------------------------

    The consequences for failing to satisfy the preconditions for an 
exemption further bolster the conclusion that these preconditions are 
not themselves part of an emission limitation. Failure to meet the 
``general duty'' preconditions for an SSM exemption means that the 
source remains subject to the otherwise applicable emission limitation 
during the SSM event and is thus liable for violating the emission 
limitation. If those general duties were independent parts of an 
emission limitation (rather than merely preconditions for an 
exemption), then one would expect that periods of time could exist when 
the source was liable for violating those general duties rather than 
the default emission limitation.
    The general-duty provisions that apply as part of the SSM exemption 
are not alternative emission limitations; they merely define an 
unlawful exemption to an emission limitation. States have discretion to 
fix this issue in a number of ways, including by removing the 
exceptions entirely, by replacing these exceptions with alternative 
emission limitations including specific control technologies or work 
practices that do ensure continuous limits on emissions or by 
reformulating the entire emission limitation.
    In addition to the EPA's fundamental disagreement with commenters 
that these general-duty provisions are actually components of emission 
limitations, the EPA has additional concerns about whether many of 
these provisions could operate as stand-alone emission limitations even 
if they were properly identified as portions of the overall emissions 
limitations in the SIP.\231\ Furthermore, some of these general-duty 
provisions do not meet the level of stringency required to be an 
``emission limitation'' compliant with specific substantive provisions 
of the CAA applicable to SIP provisions.\232\ Accordingly, while states 
are free to include general-duty provisions in their SIPs as separate 
additional requirements, for example, to ensure that owners and 
operators act consistent with reasonable standards of care, the EPA 
does not recommend using these background standards to bridge unlawful 
interruptions in an emission limitation.\233\
---------------------------------------------------------------------------

    \231\ See Sierra Club, 551 F.3d at 1026 (discussing the EPA's 
prior determinations that ``compliance with the general duty on its 
own was insufficient to prevent the SSM exemption from becoming a 
`blanket' exemption'').
    \232\ See, e.g., Sierra Club v. Johnson, 551 F.3d at 1027-28 (so 
holding with respect to section 112).
    \233\ For example, the EPA has concerns the some of these 
general-duty provisions, if at any point relied upon as the sole 
requirement purportedly limiting emissions, could undermine the 
ability to ensure compliance with SIP emission limitations relied on 
to achieve the NAAQS and other relevant CAA requirements at all 
times. See section 110(a)(2)(A), (C); US Magnesium, LLC v. EPA, 690 
F.3d 1157, 1161-62 (10th Cir. 2012).
---------------------------------------------------------------------------

    The NSPS and NESHAP emission standards and limitations that the EPA 
has issued since Sierra Club demonstrate the distinct roles played by 
emission limitations and general-duty provisions. The emission 
limitations themselves are clear and legally and functionally 
enforceable, and they are composed of obviously integrated requirements 
that limit emissions on a continuous basis during all modes of source 
operation. Crucially, the general-duty provisions in these post-Sierra 
Club regulations merely supplement the integrated emission limitation; 
they do not supplant the emission limitation, which independently 
requires continuous limits on emissions. As discussed elsewhere in this 
document, the fact that the EPA is in the process of updating its own 
regulations to comply with CAA requirements does not alter the legal 
requirements applicable to SIPs.
    n. Comments that EPA's action on the petition is a ``change of 
policy.''
    Comment: A number of commenters claimed that the EPA's action on 
the Petition is illegitimate because it is based upon a ``change of 
policy.'' Some commenters claimed that the EPA's reliance on the 
definition of ``emission limitation'' in section 302(k) and the 
requirements for SIP provisions in section 110(a)(2) as barring 
automatic exemptions are ``new.'' These commenters claimed that the EPA 
has historically relied on the fact that NAAQS are ambient-standard-
based and that the EPA has relied also on the fact that SSM exemptions 
had potential adverse air quality impacts as the basis for interpreting 
the CAA to preclude exemptions. The commenters argued that this basis 
for the SSM Policy is evidenced by the fact that EPA itself 
historically included SSM exemptions in NSPS and NESHAP rules, which 
establish emission limitations that should be governed by section 
302(k) as well.
    Other commenters claimed that the EPA is changing its SSM Policy by 
seeking to revoke ``enforcement discretion'' exercised on the part of 
states, which the EPA specifically recognized as an acceptable approach 
in the 1983 SSM Guidance. A commenter asserted that ``fairness 
principles'' mean that the EPA cannot require a state to modify its SIP 
without substantial justification. The commenter further contended that 
the EPA's claim that it has a longstanding interpretation of the CAA 
that automatic exemptions are not allowed in SIP provisions is false; 
otherwise, the commenter argued, the EPA would not have approved some 
of the provisions at issue in the SIP call long after 1982. As evidence 
for this argument, the commenter pointed to the West Virginia 
regulations that provide an automatic exemption.
    Finally, other commenters argued that the EPA's changed 
interpretation of the CAA requires an acknowledgement that the SSM 
Policy is being changed and a rational explanation for such change. 
These commenters noted that the EPA previously argued in a brief for 
the type of exemption provisions that it is now claiming are deficient, 
citing Sierra Club v. Johnson, No. 02-1135 (D.C. Cir. March 14, 2008). 
The commenters claimed that the EPA has provided no rational basis for 
its change in interpretation of the CAA concerning exemptions for 
emissions during SSM events.
    Response: The EPA's longstanding position, at least since issuance 
of the 1982 SSM Guidance, is that SIP provisions providing an exemption 
from emission limitations for emissions during SSM events are 
prohibited by the CAA. The EPA's guidance documents issued in 1982 and 
1983 expressly recognized that in place of exemptions, states should 
exercise enforcement discretion in determining whether to pursue a 
violation of an emission limitation. In the 1983 SSM Guidance, the EPA 
made recommendations for states that elected to adopt specific SIP 
provisions affecting their own exercise of enforcement discretion, so 
long as those provisions do not apply to enforcement discretion of the 
EPA or other parties under the citizen suit provision of the CAA. More 
than 15 years ago, in the 1999 SSM Guidance, the EPA reiterated its 
longstanding position that it is inappropriate for SIPs to exempt SSM 
emissions from compliance with emission limitations and repeated that 
instead of incorporating exemptions, enforcement discretion could be an 
appropriate tool. In addition, EPA clarified at that time that a 
narrowly tailored affirmative

[[Page 33905]]

defense might also be an appropriate tool for addressing excess 
emissions in a SIP provision. However, in response to recent court 
decisions, and as discussed in detail in section IV of this document, 
the EPA no longer interprets the CAA to permit affirmative defense 
provisions in SIPs.
    Although the EPA did not expressly rely on the definition of 
``emission limitation'' in section 302(k) as the basis for its SSM 
Policy in each of these guidance documents, it did rely on the purpose 
of the NAAQS program and the underlying statutory provisions (including 
section 110) governing that program. In the 1999 SSM Guidance, however, 
the EPA indicated that the definition of emission limitation in section 
302(k) was part of the basis for its position concerning SIP 
provisions.\234\ After the EPA issued the 1999 SSM Guidance, the D.C. 
Circuit issued a decision holding that the definition of emission 
limitation in section 302(k) does not allow for periods when sources 
are not subject to emissions standards.\235\ While the court's decision 
concerned the section 112 program addressing hazardous air pollutants, 
the EPA believes that the court's ruling concerning section 302(k) 
applies equally in the context of SIP provisions because the definition 
of emission limitation also applies to SIP requirements. That court's 
decision is consistent with and provides support for the EPA's 
longstanding position in the SSM Policy that exemptions from compliance 
with SIP emission limitations are not appropriate under the CAA.
---------------------------------------------------------------------------

    \234\ See 1999 SSM Guidance at 2, footnote 1. The EPA included 
section 302(k) among the statutory provisions that formed the basis 
for its interpretations of the CAA in that document.
    \235\ Sierra Club, 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Commenters claimed that by interpreting the CAA to prohibit 
exemptions for emissions during SSM events the EPA is revoking 
``enforcement discretion'' exercised by the state. This is not true. As 
part of state programs governing enforcement, states can include 
regulatory provisions or may adopt policies setting forth criteria for 
how they plan to exercise their own enforcement authority. Under 
section 110(a)(2), states must have adequate authority to enforce 
provisions adopted into the SIP, but states can establish criteria for 
how they plan to exercise that authority. Such enforcement discretion 
provisions cannot, however, impinge upon the enforcement authority of 
the EPA or of others pursuant to the citizen suit provision of the CAA. 
The EPA notes that the requirement for adequate enforcement authority 
to enforce CAA requirements is likewise a bar to automatic exemptions 
from compliance during SSM events.
    Commenters confused the EPA's evolution in describing the basis for 
its longstanding SSM Policy as a change in the SSM Policy itself. The 
EPA's interpretation of the CAA in the SSM Policy has not changed with 
respect to exemptions for emissions during SSM events. The EPA's 
discussion of the basis for its longstanding interpretation has evolved 
and become more robust over time as the EPA has responded to comments 
in rulemakings and in response to court decisions. In support of its 
interpretation of the CAA that exemptions for periods of SSM are not 
acceptable in SIPs, the EPA has long relied on its view that NAAQS are 
health-based standards and that exemptions undermine the ability of 
SIPs to attain and maintain the NAAQS, to protect PSD increments, to 
improve visibility and to meet other CAA requirements. By contrast, the 
EPA historically took the position that SSM exemptions were acceptable 
for certain technology-based standards, such as NSPS and NESHAP 
standards, and argued that position in the Sierra Club case cited by 
commenters. However, in that case, the court explicitly ruled against 
the EPA's interpretation, holding that exemptions for emissions during 
SSM events are precluded by the definition of ``emission limitation'' 
in CAA section 302(k). The Sierra Club court's rationale thus provided 
additional support for the EPA's longstanding position with respect to 
SSM exemptions in SIP provisions, and in more recent actions the EPA 
has relied on the reasoning from the court's decision as further 
support for its current SSM Policy. Thus, even if the EPA were 
proceeding under a ``change of policy'' here as the commenters claimed, 
the EPA has adequately explained the basis for its current SSM Policy, 
including the basis for any actual ``change'' in that guidance (e.g., 
the actual change in the SSM Policy with respect to affirmative defense 
provisions in SIPs). Courts have upheld an agency's authority to revise 
its interpretation of a statute, so long as that change of 
interpretation is explained.\236\
---------------------------------------------------------------------------

    \236\ The EPA emphasized this important point in the SNPR. See 
79 FR 55919 at 55931.
---------------------------------------------------------------------------

    o. Comments that the EPA's proposed action on the petition is based 
on a ``changed interpretation'' of the definition of ``emission 
limitation.''
    Comment: Commenters claimed that the EPA's action on the Petition 
is based on a changed interpretation of the term ``emission 
limitation'' and that the Agency cannot apply that changed 
interpretation ``retroactively.'' One commenter cited several cases for 
the proposition that retroactivity is disfavored and that the EPA is 
applying this new interpretation retroactively to existing SIP 
provisions. The commenter claimed that the EPA approved the existing 
SIP provisions with full knowledge of what those provisions were and 
``consistent with the provisions EPA itself adopted and courts 
required.'' The commenter characterized the SIP provisions for which 
the EPA is issuing a SIP call as ``enforcement discretion'' provisions 
and ``affirmative defense'' provisions for startup and shutdown. The 
commenter contended that the EPA does not have authority to issue a SIP 
call on the premise that the CAA is less flexible than the Agency 
previously thought. The commenter concluded that ``[t]he factors of 
repose, reasonable reliance, and settled expectations favor not 
imposing EPA's new interpretations.''
    Response: The EPA disagrees that this SIP call action has 
``retroactive'' effect. As recognized by the commenter, this SIP call 
action does not automatically change the terms of the existing SIP or 
of any existing SIP provision, nor does it mean that affected sources 
could be held liable in an enforcement case for past emissions that 
occurred when the deficient SIP provisions still applied. Rather, the 
EPA is exercising its clear statutory authority to call for the 
affected states to revise specific deficient SIP provisions so that the 
SIP provisions will comply with the requirements of the CAA 
prospectively and so that affected sources will be required to comply 
with the revised SIP provisions prospectively.
    To the extent that a SIP provision complied with previous EPA 
interpretations of the CAA that the Agency has since determined are 
flawed, or to the extent that the EPA erroneously approved a SIP 
provision that was inconsistent with the terms of the CAA, the EPA 
disagrees that it is precluded from requiring the state to modify its 
SIP now so that it is consistent with the Act. In fact, that is 
precisely the type of situation that the SIP call provision of the CAA 
is designed to address. Specifically, section 110(k)(5) begins, 
``[w]henever'' the EPA determines that an applicable implementation 
plan is inadequate to attain or maintain the NAAQS, to mitigate 
adequately interstate pollutant transport, or ``to otherwise comply 
with

[[Page 33906]]

any requirement'' of the Act, the EPA must call for the SIP to be 
revised. The commenter does not question that sections 110(a)(2) and 
302(k) are requirements of the Act. Thus, the EPA has authority under 
section 110(k)(5) to call on states to revise their SIP provisions to 
be consistent with those requirements.
    The EPA disagrees that the doctrines of ``repose,'' ``reasonable 
reliance'' and ``settled expectations'' preclude such an action. The 
CAA is clear that ``whenever'' the EPA determines that a SIP provision 
is inconsistent with the statute, ``the Administrator shall'' notify 
the state of the inadequacies and establish a schedule for correction. 
This language does not provide the Agency with discretion to consider 
the factors cited by the commenter in deciding whether to call for a 
SIP revision once it is determined to be flawed. Here, the EPA has 
determined that the SIP provisions at issue are flawed and thus the 
Agency was required to notify the states to correct the inadequacies.
    p. Comments that the EPA should not encourage states to rely on 
enforcement discretion because this will inevitably lead to states' 
creating emission limitations that some sources cannot meet.
    Comment: Commenters claimed that it is not appropriate for the EPA 
to encourage states to exercise enforcement discretion rather than to 
encourage them either to define periods when numerical emission 
limitations do not apply or to develop alternative emission limitations 
or other control measures. The commenters contended that inclusion of 
an enforcement discretion provision in a SIP is superfluous. The 
commenter cited to Portland Cement, where the D.C. Circuit court stated 
that ``an excessively broad theory of enforcement discretion might 
endanger securing compliance with promulgated standards.'' \237\ The 
commenter also cited the Marathon Oil case in the Ninth Circuit in 
which the court rejected an approach that relied heavily on enforcement 
discretion. The commenter then asserted that sources are liable for 
violations and that ``[s]ources should not be required to litigate 
remedy for violations they cannot avoid.'' \238\ The commenter 
concluded that it is ``unreasonable for EPA to subject itself to claims 
that it must exercise its federal enforcement authority in the event a 
state refuses to enforce unachievable standards, or for states to put 
source owners and operators in jeopardy of criminal prosecution for 
starting up a source with knowledge that a numerical emission 
limitation might be exceeded. In summary, the commenter appeared to 
argue that the EPA should require states to establish alternative 
numerical emission limitations or other control requirements during SSM 
events, rather than merely eliminating SSM exemptions and relying on 
enforcement discretion to address SSM emissions.
---------------------------------------------------------------------------

    \237\ 486 F.2d at 399 n.91.
    \238\ Marathon Oil Co. v. Environmental Protection Agency, 564 
F.2d 1253 (9th Cir. 1977).
---------------------------------------------------------------------------

    Response: The EPA disagrees with the commenter's suggestion that 
the EPA should discourage states from relying on enforcement 
discretion. Enforcement discretion is a valid state prerogative, long 
recognized by courts. However, the EPA agrees with the commenter that 
states should not adopt overly broad enforcement discretion provisions 
for inclusion in their SIPs. Section 110(a)(2) requires states to have 
adequate enforcement authority, and overly broad enforcement discretion 
provisions would run afoul of this requirement if they have the effect 
of precluding adequate state authority to enforce SIP requirements. The 
EPA also agrees that states may elect to include alternative emission 
limitations, whether expressed numerically or otherwise, for certain 
periods of normal operations, including startup and shutdown.
    It is unclear precisely what the commenters are advocating when 
they suggest that sources should not be subject to litigating a remedy 
for violations they cannot avoid. The likely interpretation is that the 
commenters believe that excess emissions during unavoidable events 
should be automatically exempted (i.e., not considered a violation). 
This approach was rejected by the court in Sierra Club v. Johnson, 
because it was not consistent with the definition of emission 
limitation in section 302(k).\239\ As previously explained in the 
February 2013 proposal and in this document, the EPA believes that 
definition, and thus the court's holding in Sierra Club, is equally 
relevant for the SIP program.
---------------------------------------------------------------------------

    \239\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    With respect to a commenter's concerns about criminal enforcement, 
the EPA disagrees that sources will be unable to start operations 
because they will automatically be subject to criminal prosecution if 
an emission limitation is exceeded during a malfunction. Under CAA 
section 113(c), criminal enforcement for violation of a SIP can occur 
when a person knowingly violates a requirement or prohibition of an 
implementation plan ``during any period of federally assumed 
enforcement or more than 30 days after having been notified'' under the 
provisions governing notification that the person is violating that 
specific requirement of the SIP. The EPA is unaware of any 
jurisdictions where federally assumed enforcement is in force, and the 
EPA does not anticipate that this situation would arise often. Thus, in 
almost every case, criminal enforcement would not occur in the absence 
of a pending notification of a civil enforcement case and could then 
apply only for repeated violation of the activity at issue in that 
civil action. Moreover, the concern raised by the commenter is one that 
would exist if there is any requirement that applies during a period of 
malfunction beyond the owner's control. The commenter's preferred way 
to address this concern would be to exempt these periods from 
compliance with any requirements, an approach rejected by the Sierra 
Club court as inconsistent with the definition of ``emission 
limitation'' and an approach that the EPA's longstanding SSM Policy has 
explained is inconsistent with the purpose of the NAAQS program, which 
is to ensure public health is protected through attainment and 
maintenance of the NAAQS, protection of PSD increments, improvement of 
visibility and compliance with other requirements of the CAA.
    Finally, to the extent that the commenter was advocating that the 
EPA should require states to develop SIP provisions that impose 
alternative emission limitations during certain modes of source 
operation such as startup and shutdown to replace SSM exemptions, the 
EPA notes that to require states to do so would not be consistent with 
the principles of cooperative federalism and could be misconstrued as 
the Agency's imposing a specific control requirement in contravention 
of the Virginia decision.\240\ As the commenter elsewhere itself 
argued, states have broad discretion in how to develop SIP provisions 
to meet the objectives of the CAA, so long as those provisions also 
meet the legal requirements of the CAA. To the extent that a state 
would prefer to have emission limitations that apply continuously, 
without higher numerical levels or specific technological controls or 
work practice standards applicable during modes of operation such as 
startup and shutdown, that is the prerogative of the state, so long as 
the revised SIP provision otherwise meets

[[Page 33907]]

CAA requirements. If a state determines that it is reasonable to 
require a source to meet a specific emission limitation on a continuous 
basis and also decides to rely on its own enforcement discretion to 
determine whether a violation of that emission limit should be subject 
to enforcement, then the EPA believes that to do so is within the 
discretion of the state.
---------------------------------------------------------------------------

    \240\ See Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) (SIP 
call remanded and vacated because, inter alia, the EPA had issued a 
SIP call that required states to adopt a particular control measure 
for mobile sources).
---------------------------------------------------------------------------

    q. Comments that the EPA's action on the Petition is inconsistent 
with the Credible Evidence Rule.
    Comment: A number of commenters raised concerns based upon how the 
EPA's statements in the February 2013 proposal relate to the Credible 
Evidence Rule issued in 1997.\241\ For example, one commenter argued 
that throughout the February 2013 proposal, when the EPA stated that 
excess emissions during SSM events should be treated as ``violations'' 
of the applicable SIP emission limitations, the Agency was 
contradicting the Credible Evidence Rule and other provisions of law. 
The commenter emphasized that the determination of whether excess 
emissions during an SSM event are in fact a ``violation'' of the 
applicable SIP provisions must be made using the appropriate reference 
test method. In addition, the commenter asserted that whether any other 
form of information may be used as ``credible evidence'' of a violation 
must be evaluated by the trier of fact in a specific enforcement 
action. Another commenter raised a different argument based on the 
Credible Evidence Rule, claiming that the EPA's statements in the 
preamble to that rulemaking contradict the EPA's statements in the 
February 2013 proposal and support the need for exemptions for 
emissions during SSM events. The implication of the commenter is that 
any such EPA statements in connection with the Credible Evidence Rule 
would negate the Agency's interpretation of the statutory requirements 
for SIP provisions as interpreted in the SSM Policy since at least 
1982, the decision of the court in the Sierra Club case or any other 
actions such as the recent issuance of EPA regulations with no such SSM 
exemptions.
---------------------------------------------------------------------------

    \241\ See ``Credible Evidence Revisions; Final rule,'' 62 FR 
8314 (February 24, 1997).
---------------------------------------------------------------------------

    Response: The EPA agrees, in part, with the commenters who 
expressed concern that the Agency's statements in the February 2013 
proposal could be misconstrued as a definitive determination that the 
excess emissions during any and all SSM events are automatically a 
violation of the applicable emission limitation, without factual proof 
of that violation, and without the existence and scope of that 
violation being decided by the appropriate trier of fact. The EPA 
agrees that the alleged violation of the applicable SIP emission 
limitation, if not conceded by the source, must be established by the 
party bearing the burden of proof in a legal proceeding. The degree to 
which evidence of an alleged violation may derive from a specific 
reference method or any other credible evidence must be determined 
based upon the facts and circumstances of the exceedance of the 
emission limitations at issue.\242\ This is a basic principle of 
enforcement actions under the CAA, but the EPA wishes to make this 
point clearly in this final action to avoid any unintended confusion 
between the legal standard creating the enforceable obligation and the 
evidentiary standard for proving a violation of that obligation.
---------------------------------------------------------------------------

    \242\ For example, the degree to which data from continuous 
opacity monitoring systems (COMS) is evidence of violations of SIP 
opacity or PM mass emission limitations is a factual question that 
must be resolved on the facts and circumstances in the context of an 
enforcement action. See, e.g., Sierra Club v. Pub. Ser v. Co. of 
Colorado, Inc., 894 F.Supp. 1455 (D. Colo. 1995) (allowing use of 
COMS data to prove opacity limit violations).
---------------------------------------------------------------------------

    The EPA's general statements in the February 2013 proposal, the 
SNPR and this final action about treatment of SSM emissions as a 
violation pertain to another basic principle, i.e., that SIP provisions 
cannot treat emissions during SSM events as exempt, because this is 
inconsistent with CAA requirements. Thus, when the EPA explains that 
these emissions must be treated as ``violations'' in SIP provisions, 
this is meant in the sense that states with SSM exemptions need to 
remove them, replace them with alternative emission limitations that 
apply during startup and shutdown or eliminate them by revising the 
emission limitation as a whole. Once impermissible SSM exemptions are 
removed from the SIP, then any excess emissions during such events may 
be the subject of an enforcement action, in which the parties may use 
any appropriate evidence to prove or disprove the existence and scope 
of the alleged violation and the appropriate remedy for an established 
violation. To be clear, the fact that these emissions are currently 
exempt through inappropriate SIP provisions is a deficiency that the 
EPA is addressing in this action. Thus, the EPA disagrees with the 
commenters' suggestion that these emissions are never to be treated as 
violations simply because a deficient SIP provision currently includes 
an SSM exemption. Once the SIP provisions are corrected, the excess 
emissions may be addressed through the legal structure for establishing 
an enforceable violation, which then may be proven using appropriate 
evidence, including test method evidence or other credible evidence. 
This means that excess emissions that occur during an SSM event will be 
treated for enforcement purposes in exactly the same manner as excess 
emissions that occur outside of SSM events. The EPA acknowledges that 
the limitation that applies during a startup or shutdown event might 
ultimately be different (whether higher or lower) than the limitation 
that applies at other times, if the state elects to replace the SSM 
exemption with an appropriate alternative emission limitation in 
response to this SIP call action.
    The EPA also disagrees with commenters who claimed that statements 
by the Agency in the Credible Evidence Rule final rule preamble support 
the inclusion of exemptions for SSM events in SIP provisions. The 
commenter is correct that at that time, the EPA held the view that 
emission limitations in its own NSPS could be considered 
``continuous,'' notwithstanding the fact that they contained 
``specifically excused periods of noncompliance'' (i.e., exemptions 
from emission limitations during SSM events).\243\ Similarly, at that 
time the EPA relied on a number of reported court decisions discussed 
in the preamble for the Credible Evidence Rule for determining at that 
time that NSPS could contain such exemptions in order to make the 
emission limitations ``reasonable.'' However, after the court's 
decision in the Sierra Club case interpreting the definition of 
emission limitation in section 302(k), these EPA statements in the 
preamble for the Credible Evidence Rule are no longer correct and thus 
do not apply to the EPA's action in this document.
---------------------------------------------------------------------------

    \243\ Id., 62 FR 8314, 8323-24.
---------------------------------------------------------------------------

    First, the EPA notes that these prior statements related to the 
Credible Evidence Rule specifically addressed not SIP provisions but 
rather the provisions of the Agency's own technologically based NSPS. 
The statements in the document make no reference to SIP provisions, 
which is unsurprising given that EPA's SSM Policy at the time indicated 
that no such SSM exemptions are appropriate in SIP provisions. Second, 
the EPA's justification for exemptions from emission limitations during 
SSM events in NSPS was made prior to the 2008

[[Page 33908]]

decision of the court in the Sierra Club case. The EPA's interpretation 
of the statute and the case law to justify exemptions for emissions 
during SSM events in that 1997 document is no longer correct. Finally, 
the EPA in its own new NESHAP and NSPS regulations is now providing no 
exemptions for emissions during SSM events and is imposing specific 
numerical limitations or other control requirements on sources that 
apply to affected sources at all times, including during SSM 
events.\244\ Thus, the statements in the 1997 Credible Evidence Rule 
preamble relied upon by commenters do not render the EPA's 
interpretation of the CAA with respect to SSM exemptions in SIP 
provisions in this action incorrect.
---------------------------------------------------------------------------

    \244\ See, e.g., 40 CFR 60.42Da, where paragraph (e)(1) applies 
a numerical PM emission limitation at all times except during 
periods of startup and shutdown, and paragraph (e)(2) applies work 
practice standards during periods of startup and shutdown.
---------------------------------------------------------------------------

    For clarity, the EPA emphasizes that it is in no way reopening, 
revising or otherwise amending the Credible Evidence Rule in this 
action. The EPA is merely responding to commenters who characterized 
the relationship between Agency statements in that rulemaking action 
and this SIP call action. The EPA also emphasizes that no changes to 
the Credible Evidence Rule should be necessary as a result of this 
rulemaking.
    r. Comments that exemptions in opacity standards should be 
permissible because opacity is not a NAAQS pollutant.
    Comment: Many state and industry commenters argued that the EPA 
should interpret the CAA to allow SIP provisions that impose opacity 
emission limitations to contain exemptions for SSM events or for other 
modes of source operation. The reasons given by commenters ranged 
broadly, but they included assertions that opacity is not a criteria 
pollutant, that opacity limitations serve no purpose other than as a 
tool to monitor PM control device performance, that there is no 
reliable correlation between opacity and PM mass, that there are 
circumstances during which sources may not be capable of meeting the 
otherwise applicable SIP opacity standards and that opacity is not an 
``air pollutant.'' Commenters also argued that because SIP opacity 
standards were originally established when the NAAQS applied to ``total 
suspended particles'' (TSP), rather than the current PM10 
and PM2.5, this alone should be a reason to allow SSM 
exemptions now that the NAAQS have been revised and the indicator 
species changed. Some of the commenters acknowledged that their 
underlying concern is that requirements for COMS on certain sources 
have rendered it much easier to monitor exceedances of SIP opacity 
limits and to bring enforcement actions for alleged violations.
    Response: The EPA agrees with many of the points made by commenters 
but not with the conclusion that the commenters drew from these points, 
i.e., that exemptions for SSM events are appropriate in SIP provisions 
that impose opacity emission limitations.
    First, although the EPA agrees that opacity itself is not a 
criteria pollutant and that there is thus no NAAQS for opacity, this 
does not mean that SIP opacity limitations are not ``emission 
limitations'' subject to the requirements of section 110(a)(2)(A) and 
do not need to be continuous. As the commenters often conceded, opacity 
is a surrogate for PM emissions for which there are NAAQS, and opacity 
has served this purpose since the beginning of the SIP program in the 
1970s. SIP provisions that impose opacity emission limitations often 
date back to the earliest phases of the SIP program. From the outset, 
such opacity limitations have provided an important regulatory tool for 
implementing the PM NAAQS and for limiting PM emissions from sources. 
To this day, states continue to use opacity limitations in SIP 
provisions and the EPA continues to use opacity limitations in its own 
NSPS and NESHAP regulations, as necessary, for specific source 
categories.\245\ EPA regulations applicable to SIPs explicitly define 
the term ``emission limitation'' to include opacity limits.\246\ It is 
also important to note that these SIP provisions impose opacity 
emission limitations that sources must meet independently; i.e., 
opacity limitations are independent ``emission limitations'' under 
section 110(a)(2)(A) that must, consistent with section 302(k), 
``limit[ ] the quantity, rate, or concentration of emissions of air 
pollutants on a continuous basis.'' These opacity emission limitations 
in SIP provisions are not stated conditionally as opacity limits that 
sources do not need to meet if they are otherwise in compliance with PM 
mass emission limitations or with any other CAA requirements. Thus, the 
fact that opacity is not itself a criteria pollutant is irrelevant.
---------------------------------------------------------------------------

    \245\ See, e.g., 40 CFR 60.42Da(b). The EPA's revised NSPS for 
this category imposes an opacity limit of 20 percent at all times, 
except for one 6-minute period per hour when the opacity may rise to 
27 percent. Notably, as an option, sources may elect to install PM 
CEMS and be subject only to the revised particulate matter emission 
limitation.
    \246\ See 40 CFR 51.100(z) (defining the term ``emission 
limitation'' as limits on ``the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis, including any 
requirements which limit the level of opacity'').
---------------------------------------------------------------------------

    Second, although the EPA agrees that SIP opacity limitations also 
provide an important means of monitoring control device performance and 
thus indirectly provide a means to monitor compliance with PM emission 
limitations as well, this does not mean that opacity limits do not need 
to meet the statutory requirements for SIP emission limitations. 
Historically, opacity limits have been an important tool for 
implementation of the PM NAAQS, and in particular for the 
implementation and enforcement of PM mass limitations on sources to 
help attain and maintain the PM NAAQS. The EPA agrees that opacity is a 
useful tool to indicate overall operation and maintenance of a source 
and its emission control devices, such as electrostatic precipitators 
or baghouses. SIP opacity limitations provided this tool even before 
modern instruments that measure PM emissions on a direct, continuous 
basis existed. At a minimum, elevated opacity indicates potential 
problems with source design, operation or maintenance, or potential 
problems with incorrect operation of pollution control devices, 
especially at the elevated levels of many existing opacity standards. 
Well-run sources should be in compliance with typical SIP opacity 
limits. Opacity exceeding the applicable limitations can be indicative 
of problems that justify further investigation by sources and 
regulators, such as conducting a stack test to determine compliance 
with PM mass emission limitations. Not all sources have or will have PM 
CEMS, or have PM CEMS at all emission points, to monitor PM emissions 
directly, nor do PM CEMS necessarily obviate the need for opacity 
standards to regulate condensables, and thus there is a continued need 
for opacity emission limitations in SIPs. The continued need for SIP 
opacity limitations for this and other purposes contradicts the 
commenters' arguments concerning the validity of SSM exemptions.
    Third, the EPA agrees that the precise correlation between opacity 
and PM mass emissions is not always known for a specific source under 
all operating conditions, unless there is parallel testing and 
measurement of the opacity and the PM emissions to determine the 
correlation at that particular source. Similarly, parametric monitoring 
can be used to establish such a correlation. Nevertheless, there is 
commonly a positive correlation between PM and opacity and thus 
elevated opacity is often indicative of additional PM

[[Page 33909]]

emissions from a source. Even in those instances where a precise 
correlation is not available, however, the use of opacity as a means to 
assure the reduction of PM emissions and to monitor source compliance 
remains a valid approach to regulation of PM from sources. In any 
event, the absence of a precise correlation between opacity and PM does 
not justify the complete exemptions from SIP opacity limitations during 
SSM events that the commenters advocate and instead suggests that it 
may be appropriate to replace such exemptions with valid and 
enforceable alternative numerical limitations or other control 
requirements as a component of the SIP opacity emission limitation that 
applies during startup and shutdown. Opacity emission limitations in 
SIPs must meet the statutory requirements for emission limitations.
    Fourth, the EPA agrees with commenters that for some sources some 
PM controls cannot operate, or operate at full effectiveness and ideal 
efficiency, during startup and shutdown. Accordingly, as the commenters 
implicitly recognized, the resulting increases in PM emissions can 
result in elevated opacity and thus exceedances of the applicable SIP 
opacity emission limitations. In those situations where it is true that 
no additional emissions controls are available or would function more 
effectively to reduce PM emissions, and hence to reduce opacity, it may 
be appropriate for states to consider imposing an alternative opacity 
emission limitation applicable during startup and shutdown. As 
discussed in section VII.B.2 of this document, the EPA provides 
recommendations to states concerning how to develop such alternative 
emission limitations. To the extent that sources believe that a SIP 
provision with a higher opacity level for startup and shutdown may be 
justified, they may seek these alternative limitations from the state 
and they can presumably advocate for opacity standards that are 
tailored to reflect the correlation between PM mass and opacity at a 
specific source. Significantly, however, even if it is appropriate to 
impose a somewhat higher opacity limitation for some sources during 
specifically defined modes of operation such as startup and shutdown, 
that does not justify the total exemptions from SIP opacity emission 
limitations during SSM events that the commenters advocated. To provide 
total exemptions from SIP opacity emission limitations during SSM 
events does not provide any incentive for sources to be better 
designed, operated, maintained and controlled to reduce emissions, nor 
does it comply with the most basic requirement that SIP emission 
limitations be continuous in accordance with section 302(k). As 
explained in section X.B of this document, the SIP revisions in 
response to this SIP call action will need to be consistent with the 
requirements of sections 110(k)(3), 110(l) and 193 as well as any other 
applicable requirements.
    Fifth, the EPA notes that few commenters seriously argued that SIP 
provisions for opacity do not fit within the plain language of section 
110(a)(2)(A) or the definition of ``emission limitation'' in section 
302(k) or in EPA regulations applicable to SIP provisions. Section 
110(a)(2)(A) requires SIPs to contain such enforceable emission 
limitations ``as may be necessary and appropriate to meet the 
applicable requirements of'' the CAA. Opacity limitations in SIP 
provisions are necessary and appropriate for a variety of reasons 
already described, including as a means to reduce PM emissions, as a 
means to monitor source compliance and to provide for more effective 
enforcement. Opacity limitations in SIP provisions also easily fit 
within the concept of a limit on the ``quantity, rate or concentration 
of air pollutants'' that relates to the ``operation or maintenance of a 
source to assure continuous emission reduction and any design, 
equipment, work practice or operational standard'' under the CAA, as 
provided in section 302(k). The term ``air pollutant'' is defined 
broadly in section 302(g) to mean ``any air pollution agent or 
combination of such agents, including any physical, chemical, 
biological, radioactive . . . substance or matter which is emitted into 
or otherwise enters the ambient air.'' Even if opacity is not itself an 
air pollutant, it is clearly a means of monitoring and limiting 
emissions of PM from sources and is thus encompassed within the 
definition of ``emission limitation'' in section 302(k).\247\ 
Significantly, existing EPA regulations applicable to SIP provisions 
already explicitly define the term ``emission limitation'' to include 
opacity limitations.\248\
---------------------------------------------------------------------------

    \247\ See Sierra Club v. TVA, 430 F.3d 1337, 1340 (11th Cir. 
2005).
    \248\ See 40 CFR 51.100(z).
---------------------------------------------------------------------------

    Finally, the EPA does not agree with commenters who argued that 
because SIP opacity limitations were often originally imposed when the 
PM NAAQS was for TSP, it is legally acceptable to have exemptions for 
emissions during SSM events now that the PM NAAQS use PM10 
and PM2.5 as the indicator species. On a factual level, it 
is obvious that SIP provisions for opacity limitations are expressed in 
terms of percentage ``opacity'' unrelated to the size of the particles. 
Opacity represents the degree to which emissions reduce the 
transmission of light and obscures the view of an object in the 
background. In general, the more particles which scatter or absorb 
light that passes through an emissions point, the more light will be 
blocked, thus increasing the opacity percentage of the emissions plume. 
The EPA agrees that variables such as the size, number and composition 
of the particles in the emissions can result in variations in the 
percentage of opacity. Notwithstanding the changes in the NAAQS, 
however, both states and the EPA have continued to rely on opacity 
limitations because they serve the same purposes for the current 
PM10 and PM2.5 NAAQS (and other purposes such as 
the regulation of HAPs under section 112) that they previously did for 
the TSP NAAQS. Indeed, as the PM NAAQS have been revised to provide 
better protection of public health, the need for such opacity 
limitations continues unless there is a better means to monitor source 
compliance, such as PM CEMS. As with other SIP emission limitations, 
the EPA interprets the CAA to preclude SSM exemptions in opacity 
standards.
    s. Comments that exemptions from SIP opacity limitations for excess 
emissions during SSM events should be allowed because such emissions 
are difficult to monitor or to control.
    Comment: Several commenters argued that the EPA's proposal of a SIP 
call for SIP opacity emission limitations that include an SSM exemption 
is arbitrary and capricious because it is difficult or impossible to 
monitor or measure opacity during SSM events. According to commenters, 
there is no compliance methodology to determine whether opacity 
limitations are met during SSM events and this is the reason that the 
EPA's own general provisions for NSPS and NESHAP exclude emissions 
during SSM events as ``not representative'' of source operation. In the 
absence of a specific methodology to demonstrate compliance, the 
commenters argued that expecting sources to comply with any opacity 
emission limitations during SSM events is arbitrary and capricious. The 
commenters asserted that in light of this, the EPA must interpret the 
CAA to allow exemptions for SSM events in SIP opacity provisions.
    A number of commenters also argued that because emission controls 
for PM do not function, or do not function as effectively or 
efficiently, during certain

[[Page 33910]]

modes of source operation, the EPA should interpret the CAA to permit 
exemptions for SSM events in opacity emission limitations. Many 
commenters explained that certain types of emission controls at certain 
types of sources only operate at specific temperatures or under 
specific conditions. For example, many commenters stated that existing 
pollution control devices on certain categories of stationary sources 
do not operate, or do not operate as effectively or efficiently, during 
startup and shutdown. Based upon this assertion, the commenters argued 
that the EPA should interpret the CAA to allow total exemptions from 
SIP opacity emission limitations during such periods.
    Commenters also characterized the EPA's February 2013 proposal as 
``particularly unreasonable'' with respect to SSM exemptions in SIP 
opacity limitations, because those limitations should be allowed to 
exclude elevated opacity during periods when PM emissions controls 
devices are ``not expected to operate correctly.'' According to 
commenters, treating the higher opacity during SSM events ``as a 
violation simply because it is indicating something that is expected is 
ridiculous.'' As an example, the commenters specifically mentioned 
occurrences such as when a source's electrostatic precipitator (ESP) is 
not functioning or is not functioning properly as periods during which 
there should be an exemption from SIP opacity emission limitations.
    Response: The EPA agrees with some of the points made by commenters 
but does not agree with the conclusions that the commenters drew from 
these points, i.e., that alleged difficulties in monitoring, measuring 
or controlling opacity during some modes of source operation in general 
justify complete exemptions from opacity emission limitations during 
SSM events.
    First, the EPA does not agree with the argument that there is no 
``compliance methodology'' available for purposes of verifying 
compliance with SIP opacity limitations. Since the earliest phases of 
the SIP program, Reference Method 9 has been available as a means of 
verifying a source's compliance with applicable SIP opacity emission 
limitations. Whatever concerns the commenters may have with this test 
method, it is a valid method and it continues to be used as a means of 
verifying source compliance with opacity limitations and a source of 
evidence for determining whether there are violations of such emission 
limitations.\249\ Sources routinely monitor and certify to their 
compliance with SIP opacity limitations based upon Method 9. In 
addition, COMS have been available, and in some cases are required, as 
another means of monitoring emissions and verifying compliance with 
opacity emission limitations. With respect to COMS, commenters 
expressed concerns that they are not always accurate, are not always 
properly calibrated or are not always the reference test method for SIP 
opacity emission limitations, and other similar arguments. In this 
rulemaking, the EPA is not addressing these allegations concerning COMS 
but merely noting that COMS are an available means of monitoring 
opacity from sources and in appropriate circumstances can provide data 
meeting the EPA's criteria as credible evidence to be used to determine 
compliance with emission limitations.
---------------------------------------------------------------------------

    \249\ The EPA notes that one commenter characterized SIP opacity 
limits as ``archaic'' and suggested that the Agency should issue a 
SIP call requiring their removal from SIPs entirely. Unless and 
until regulators and sources have a better means of monitoring 
compliance with PM emission limitations on a continuous basis, such 
as through installation of PM CEMS, the EPA believes that opacity 
limits will continue to be a necessary part of emission limitations. 
There will continue to be sources of emissions for which it will not 
be cost-effective or technologically viable to require the 
installation of PM CEMS or for which opacity standards will be 
needed as a means of regulating condensables.
---------------------------------------------------------------------------

    Second, the EPA does not agree that the fact that its regulations 
concerning performance tests in 40 CFR 63.7(e) for NESHAP and in 40 CFR 
60.8(c) for NSPS exclude SSM emissions for purposes of evaluation of 
emissions under normal operating conditions provides a justification 
for SSM exemptions from opacity emission limitations in SIP provisions. 
The D.C. Circuit decision in Sierra Club has already indicated that 
such exemptions are not permissible in emission limitations and vacated 
the general provisions applicable to NESHAP. In the case of the 
exemption language in 40 CFR 60.8(c) relevant to NSPS, the EPA 
acknowledges that it has not yet taken action to revise the language to 
eliminate that exemption. However, in promulgating new NSPS regulations 
subsequent to the Sierra Club decision, the EPA is including emission 
limitations for newly constructed, reconstructed and modified sources 
that apply continuously and including provisions expressly stating that 
the SSM exemptions in the General Provisions do not apply. The EPA 
notes that the commenter is also in error because the performance tests 
are intended to be a means of evaluating emissions from sources during 
periods that are representative of source operation.
    Third, the EPA does not agree with the premise that because certain 
forms or types of emission controls do not work, or do not work as 
effectively or efficiently, during certain modes of operation at some 
sources, it necessarily follows that sources should be totally exempt 
from emission limitations during such periods. The EPA interprets the 
CAA to require that SIP emission limitations be continuous. As 
explained in section VII.A of this document, emission limitations do 
not necessarily need to be expressed numerically, can have higher 
numerical levels during certain modes of operation, and may be composed 
of a combination of numerical limitations, specific technological 
control requirements and/or work practice requirements during certain 
modes of operation, so long as these emission limitations meet 
applicable CAA stringency requirements and are legally and practically 
enforceable. If it is factually accurate that a given source category 
requires a higher opacity limit during periods such as startup and 
shutdown, then the state may elect to develop one consistent with other 
CAA requirements. The EPA has provided guidance to states with criteria 
to consider in revising their SIP provisions to replace exemptions with 
an appropriate alternative emission limitation for such purposes. The 
EPA emphasizes that even if it is the case that existing control 
measures cannot operate, or cannot operate as effectively or 
efficiently, during startup and shutdown at a particular source, this 
does not legally justify a complete exemption from SIP emission 
limitations and may merely indicate that additional emission controls 
or work practices are necessary when the existing control measures are 
insufficient to meet the applicable SIP emission limitation. The EPA is 
taking this approach with its own recent NSPS and NESHAP regulations, 
when appropriate, in order to ensure that its own emission limitations 
are consistent with CAA requirements.
    Finally, the EPA also disagrees with the logic of commenters that 
argued in favor of exemptions from SIP opacity limitations during 
periods when a source is most likely to violate them, e.g., when the 
source's control devices are not functioning. Even if exemptions from 
SIP opacity emission limitations were legally permissible under the 
CAA, which they are not, it would be illogical to excuse compliance 
with the standards during the precise periods when opacity standards 
are most

[[Page 33911]]

needed to monitor source compliance with SIP emission limitations and 
provide incentives to avoid and promptly correct malfunctions; i.e., it 
would be illogical to require no legal restriction on emissions when 
the sources are most likely to be emitting the most air pollutants. 
Inclusion of exemptions for exceedances of SIP opacity limitations 
during such periods would remove incentives to design, maintain and 
operate the source correctly, and to promptly correct malfunctions, in 
order to assure that it meets the applicable SIP emission limitations. 
By exempting excess emissions during such events, the provision would 
undermine the enforcement structure of the CAA in section 113 and 
section 304, through which the air agency, the EPA and citizens are 
authorized to assure that sources meet their obligations. The EPA 
emphasizes that while exemptions from SIP limitations are not 
permissible in SIP provisions, states may elect to impose appropriate 
alternative emission limitations. They may include alternative 
numerical limitations, control technologies or work practices that 
apply during modes of operation such as startup and shutdown, so long 
as all components of the SIP emission limitation meet all applicable 
CAA requirements.
    t. Comments that exemptions in SIP opacity limitations should be 
permissible for ``maintenance,'' ``soot-blowing'' or other normal modes 
of source operation.
    Comment: A number of industry commenters argued that the EPA should 
interpret the CAA to allow exemptions from SIP opacity limitations for 
``maintenance.'' The commenters stated that during maintenance, sources 
must shut down operations and control devices while the source is 
cleaned or repaired. During such periods, the commenters explained, a 
ventilation system operated to protect workers at the source could 
result in monitored exceedances of a SIP opacity limitation. Commenters 
specifically argued that although COMS data may suggest violations of 
opacity standards during such periods, the fact that the source is not 
combusting fuel during maintenance should mean that the opacity 
emission limitation does not apply at such times. According to 
commenters, opacity limitations are only intended to reflect the 
performance of pollution control equipment while the source is 
operating and thus have no relevance during periods of maintenance. 
Other commenters made comparable arguments with respect to soot-
blowing, asserting that the high opacity levels during this activity 
are ``indicative of normal ESP operation, not poor performance.'' In 
other words, the commenters argued that opacity limitations should 
contain complete exemptions for opacity emitted during soot-blowing on 
the theory that the elevated emissions during this mode of operation 
show that the control measure on a source is functioning properly. The 
commenters further argued that considering emissions during soot-
blowing for purposes of PM limitations is appropriate, but not for 
purposes of opacity limitations, because of the way in which regulators 
developed the respective emission limitations.
    Response: The EPA does not agree that exemptions from SIP opacity 
limitations are appropriate for any mode of source operation, whether 
during SSM events or during other normal, predictable modes of source 
operation. To the extent that there are legitimate technological 
reasons why sources are able to meet only a higher opacity limitation 
during certain modes of operation, it does not follow that this 
constraint justifies complete exemption from any standard or any 
alternative technological control or work practice in order to reduce 
opacity during such periods. Providing a complete exemption for opacity 
during these modes of source operation, and no specific alternative 
emission limitation during such periods, removes incentives for sources 
to be properly designed, maintained and operated to reduce emissions 
during such periods.
    With respect to maintenance, the EPA does not agree with commenters 
that total exemptions from opacity emission limitations during such 
activities are consistent with CAA requirements for SIP provisions. As 
the EPA has stated repeatedly in its interpretation of the CAA in the 
SSM Policy, maintenance activities are predictable and planned 
activities during which sources should be expected to comply with 
applicable emission limitations.\250\ The premise of the commenters 
advocating for such exemptions for all emissions during maintenance is 
evidently that nothing can be done to limit PM emissions and thus limit 
opacity during maintenance activities, and the EPA disagrees with that 
general premise. To the extent appropriate, however, states may elect 
to create alternative emission limitations applicable to opacity during 
maintenance periods, so long as they are consistent with CAA 
requirements. The EPA provides recommendations for alternative emission 
limitations in section VII.B.2 of this document.
---------------------------------------------------------------------------

    \250\ See 1982 SSM Guidance at Attachment p. 2; 1983 SSM 
Guidance at Attachment p. 3. The EPA notes that it also did not 
interpret the CAA to permit affirmative defense provisions for 
planned events under its prior 1999 SSM Guidance on the grounds that 
sources should be expected to operate in accordance with applicable 
SIP emission limitations during maintenance. This interpretation was 
upheld in Luminant Generation v. EPA, 714 F.3d 841 (5th Cir. 2013).
---------------------------------------------------------------------------

    With respect to soot-blowing, the EPA likewise does not agree that 
total exemptions from opacity limitations during such periods are 
consistent with CAA requirements. As with maintenance in general, soot-
blowing is an intentional, predictable event within the control of the 
source. The commenters' implication is that nothing whatsoever could be 
done to limit opacity during such activities, and the EPA believes that 
this is both inaccurate and not a justification for sources' being 
subject to no standards whatsoever during soot-blowing. In addition, 
the EPA disagrees with the commenters' claim that exemptions from 
opacity emission limitations during soot-blowing are legally 
permissible because this allegedly shows that the control devices for 
opacity and PM are in fact performing correctly. This argument 
incorrectly presupposes that the sole reason for SIP opacity emission 
limitations is as a means of better evaluating control measure 
performance. This is but one reason for SIP opacity limitations. 
Moreover, the EPA notes, excusing opacity during soot-blowing has the 
diametrically opposite effect of the actual purpose of the control 
devices and can result in much higher emissions as opposed to 
encouraging limiting these emission with other forms of controls.
    Finally, the EPA notes, the commenters' argument that whether 
opacity limitations should apply during soot-blowing depends upon 
whether the emissions were or were not accounted for in the applicable 
PM emissions is also based upon an incorrect premise. Even if the PM 
emission limitation applicable to a source was developed to include the 
emissions during soot-blowing specifically, it does not follow that 
sources should be completely exempted from opacity limitations during 
such periods. As the commenters themselves frequently acknowledged, 
when compared to other enforcement tools, SIP opacity provisions often 
provide a much more effective and continuous means of determining 
source compliance with SIP PM limitations and control measure 
performance. A typical SIP opacity provision imposes an emission 
limitation such as 20 percent opacity at all times, except for 6 
minutes per hour when those emissions may rise to 40 percent opacity. 
Well-maintained and

[[Page 33912]]

well-operated sources should be able to meet such SIP opacity 
limitations. Given that properly designed, maintained and operated 
sources should typically have opacity substantially below these levels, 
elevated opacity at a source is a good indication that the source may 
not be in compliance with its applicable PM limitations.
    u. Comments that elimination of exemptions from SIP opacity 
emission limitations during SSM events will compel states to alter the 
averaging period of opacity limitations so as to allow sources to have 
elevated emissions during SSM events.
    Comment: Commenters argued that if exemptions for excess emissions 
during SSM events are not legally permissible in SIP opacity emission 
limitations, then states will have no option but to alter the existing 
opacity limitations. The commenters argued that if the SSM exemptions 
are removed, then the averaging time should be ``greatly extended'' and 
the numerical limits ``should be significantly increased.''
    Response: The EPA agrees that SIP provisions for opacity that 
contain exemptions for SSM events at issue in this action must be 
revised to eliminate the exemptions. States may elect to do this by 
merely removing the exemptions, by replacing the exemptions with 
appropriate alternative emission limitations that apply in place of the 
exemptions or, as the commenters evidently advocate, by a total 
overhaul of the emission limitation. The EPA disagrees, however, with 
the commenters' contentions that removal of the SSM exemptions would 
necessarily result in extensions of the averaging time or increases of 
the numerical levels in the existing SIP opacity emission limitations. 
In some cases, extension of the averaging period and elevation of the 
numerical limitations may in fact be appropriate. In other cases, 
however, it may instead be appropriate to reduce the existing numerical 
opacity limitations, given improvements in control technology since the 
original imposition of the limits and the need for additional PM 
emission reductions from the affected sources due to more recent 
revisions to the PM NAAQS. Thus, the EPA notes, a total revision of 
some of the SIP opacity limitations at issue in this action may indeed 
be the proper course for states to consider. The implications of the 
commenters' argument, however, are that existing opacity limitations 
will automatically need to be revised in order to allow sources to 
continue to emit as usual and that states and sources may ignore 
improvements that have been made in source design, operation, 
maintenance or controls to reduce emissions. The EPA emphasizes that 
the removal of impermissible SSM exemptions should not be perceived as 
an opportunity to provide new de facto exemptions for these emissions 
by manipulation of the averaging time and the numerical level of 
existing opacity emission limitations.
    In any event, the EPA is not in this final action deciding how 
states must revise SIP opacity emission limitations but is merely 
issuing a SIP call directing the affected states to eliminate existing 
automatic and discretionary exemptions for excess emissions during SSM 
events. The affected states will elect how best to respond to this SIP 
call, whether by simply removing the exemptions, by replacing the 
exemptions with appropriate alternative emission limitations applicable 
to startup and shutdown or other normal modes of operation or by a 
complete overhaul of the SIP provision in question. In particular, 
where the affected sources are located in designated nonattainment 
areas, there may be a need to evaluate additional controls that are 
needed for attainment planning purposes that were not necessary when 
the emission limitation was first adopted. Whichever approach a state 
determines to be most appropriate, the resulting SIP submission to 
revise the existing deficient provisions will be subject to review by 
the EPA pursuant to sections 110(k)(3), 110(l) and 193. Considerations 
relevant to this issue are discussed in section X.B of this document.

B. Alternative Emission Limitations During Periods of Startup and 
Shutdown

1. What the EPA Proposed
    In the February 2013 proposal, the EPA reiterated its longstanding 
interpretation of the CAA that SIP provisions cannot include exemptions 
from emission limitations for emissions during SSM events but may 
include different requirements that apply to affected sources during 
startup and shutdown. Since the 1982 SSM Guidance, the EPA has clearly 
stated that startup and shutdown are part of the normal operation of a 
source and should be accounted for in the design and operation of the 
source. Thus, the EPA has long concluded that sources should be 
required to meet the applicable SIP emission limitations during normal 
modes of operation including startup and shutdown.\251\ In the 1983 SSM 
Guidance, the EPA explained that it may be appropriate to exercise 
enforcement discretion for violations that occur during startup and 
shutdown under proper circumstances. In the 1999 SSM Guidance, the EPA 
further explained that it interprets the CAA to permit SIP emission 
limitations that include alternative emission limitations specifically 
applicable during startup and shutdown. In the context of making 
recommendations to states for how to address emissions during startup 
and shutdown, the EPA provided seven criteria for states to evaluate in 
establishing appropriate alternative emission limitations. The specific 
purpose for these recommendations was to take into account 
technological limitations that might prevent compliance with the 
otherwise applicable emission limitations. As explained in detail in 
the February 2013 proposal, the EPA did not intend these criteria to be 
the basis for the creation of exemptions from SIP emission limitations 
during startup and shutdown, because the Agency interprets the CAA to 
prohibit such exemptions.
---------------------------------------------------------------------------

    \251\ Some commenters on the February 2013 proposal focused 
great attention on whether startup and shutdown are modes of 
``normal'' source operation. The EPA assumes that every source is 
designed, maintained and operated with the expectation that the 
source will at least occasionally start up and shut down, and thus 
these modes of operation are ``normal'' in the sense that they are 
to be expected. The EPA used this term in the ordinary sense of the 
word to distinguish between such predictable modes of source 
operation and genuine ``malfunctions,'' which are by definition 
supposed to be unpredictable and unforeseen events that could not 
have been precluded by proper source design, maintenance and 
operation.
---------------------------------------------------------------------------

    In the February 2013 proposal, the EPA also repeated its guidance 
concerning establishment of alternative emission limitations that apply 
to sources during startup and shutdown, in those situations where the 
sources cannot meet the otherwise applicable SIP emission limitations. 
As explained in section VII.A of the February 2013 proposal, the EPA 
interprets the CAA to require that SIP emission limitations must be 
continuous and thus to prohibit exemptions for emissions during startup 
and shutdown. This does not, however, mean that every SIP emission 
limitation must be expressed as a numerical limitation or that it must 
impose the same limitations during all modes of source operation. The 
EPA's interpretation of the CAA with respect to SIP provisions is that 
SIP emission limitations: (i) Do not need to be numerical in format; 
(ii) do not have to apply the same limitation (e.g., numerical level) 
at all times; and (iii) may be composed of a combination of numerical 
limitations, specific technological control requirements and/

[[Page 33913]]

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

[[Page 33914]]

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

[[Page 33915]]

limitation.\252\ In these cases the state should consider how the 
control equipment works in determining what standards should apply 
during startup and shutdown. In addition, as noted by commenters, such 
standards may vary based on location (e.g., standards in a hot and 
humid area may differ from those adopted for a cool and dry area). Some 
equipment during startup and shutdown may be unable to meet the same 
emission limitation that applies during steady-state operations and so 
alternative limitations for startup and shutdown may be 
appropriate.\253\ However, for many sources, it should be feasible to 
meet the same emission limitation that applies during steady-state 
operations also during startup and shutdown.\254\ These are issues for 
the state to consider in developing specific regulations as they revise 
the deficient SIP provisions identified in this action. The EPA 
emphasizes that the state has discretion to determine the best means by 
which to revise a deficient provision to eliminate an automatic or 
discretionary SSM exemption, so long as that revision is consistent 
with CAA requirements. The EPA will work with the states as they 
consider possible revisions to deficient provisions.
---------------------------------------------------------------------------

    \252\ See 1999 SSM Guidance, Attachment at 4-5.
    \253\ The EPA notes that it has taken this approach in its own 
recent actions establishing emission limitations for sources. See, 
e.g., ``National Emission Standards for Hazardous Air Pollutants for 
Major Sources: Industrial, Commercial, and Institutional Boilers and 
Process Heaters; Final rule; notice of final action on 
reconsideration,'' 78 FR 7137 (January 31, 2013) (example of work 
practice requirement for startup as a component of a continuous 
emission limitation).
    \254\ The EPA notes that it has taken this approach in its own 
recent actions establishing emission limitations for sources. See, 
e.g., ``National Emission Standards for Hazardous Air Pollutants 
Residual Risk and Technology Review for Flexible Polyurethane Foam 
Production; Final rule,'' 79 FR 48073 (August 15, 2014) (example of 
NESHAP emission limitation that is continuous and does not include a 
different component for periods of startup or shutdown).
---------------------------------------------------------------------------

    The EPA recognizes that a malfunction may cause a source to shut 
down in a manner different than in a planned shutdown, and in that 
case, such a shutdown would typically be considered part of the 
malfunction event. However, as part of the normal operation of a 
facility, sources typically will also have periodic or otherwise 
scheduled startup and shutdown of equipment, and steps to limit 
emissions during this type of event are or can be planned for. The EPA 
disagrees with the suggestion of commenters that because some startup 
or shutdown events may be unplanned, all startup and shutdown events 
should be exempt from compliance with any requirements. For those 
events that are planned, the state should be able to establish 
requirements to regulate emissions, such as a numerical limitation, 
technological control measure or work practice standard that will apply 
as a part of the revised emission limitation. When unplanned startup or 
shutdown events are part of a malfunction, they should be treated the 
same as a malfunction; however, as with malfunctions, startup and 
shutdown events cannot be exempted from compliance with SIP 
requirements. Questions of liability and remedy for violations that 
result from malfunctions are to be resolved in the context of an 
enforcement action, if such an action occurs.
    b. Comments that it is impossible, unreasonable or impractical for 
states to develop emission limitations that apply during startup and 
shutdown to replace existing exemptions.
    Comment: A number of commenters suggested that it will be difficult 
for states to develop emission limits that apply during startup and 
shutdown. One state commenter reasoned that alternative emission limits 
are applied to facilities in that state through individual permits on a 
case-by-case basis and claimed that there are 500 permitted facilities 
in the state. The commenter contended that ``non-steady-state'' limits 
would need to be set for startup and shutdown for all 500 permitted 
facilities and that such an effort would be ``time, resource, and data 
intensive.'' The state commenter further contended that it would be 
unreasonable to require the state to include such limits ``for every 
source'' in the SIP because ``permit modifications would need to occur 
every time there is a new emission source, a source ceases to operate, 
or an emission-related regulation is changed.''
    A local government commenter stated that to establish limits for 
startup and shutdown that also demonstrate compliance with the NSR 
regulations (including protection of the NAAQS and PSD increments and 
maintenance of BACT or LAER) would be a difficult, time-consuming task 
that was mostly impractical.
    An industry commenter claimed that the EPA is encouraging states to 
adopt numerical alternative emission limitations in their SIP 
provisions that would apply during startup and shutdown. The commenter 
claimed that adequate and accurate emissions data are necessary to do 
so and that such information is not generally available for existing 
equipment or, in many cases, for new equipment. Furthermore, the 
commenter asserted, even if an emission limit could be established for 
startup and shutdown, there are no current approved test measures to 
verify compliance during such modes of operation. Even where data are 
available, the commenter alleged, the data may not be representative of 
actual conditions because of limitations related to low-load 
conditions. If a state lacks information to conclude that a limit can 
be met, the commenter argued, the state should not be required to 
establish numerical limits but should instead be allowed ``to specify 
that numerical standards do not apply to those conditions or that those 
conditions are exempt, or should be allowed to establish work practice 
standards.''
    Response: The comments of the state commenter seem to be based on 
the premise that all sources will be unable to meet otherwise 
applicable SIP emission limitations during periods of startup and 
shutdown. The EPA anticipates that many types of sources should be able 
during startup and shutdown to meet the same emission limitation that 
applies during full operation. Additionally, even where a specific type 
of operation may not during startup and/or shutdown be able to meet an 
emission limitation that applies during full operation, the state 
should be able to develop appropriate limitations that would apply to 
those types of operations at all similar types of facilities. The EPA 
believes that there will be limited, if any, cases where it may be 
necessary to develop source-specific emission requirements for startup 
and/or shutdown. In any event, this is a question that is best 
addressed by each state in the context of the revisions to the SIP 
provisions at issue in this action. To the extent that there are 
appropriate reasons to establish an emission limitation with 
alternative numerical, technological control and/or work practice 
requirements during startup or shutdown for certain categories of 
sources, this SIP call action provides the state with the opportunity 
to do so.
    As to the commenter's concern that such alternative emission 
limitations should not be included in a state's SIP, the EPA disagrees. 
The SIP needs to reflect the control obligations of sources, and any 
revision or modification of those obligations should not be occurring 
through a separate process, such as a permit process, which would not 
ensure that ``alternative'' compliance options do not weaken the SIP. 
The SIP is a combination of state statutes, regulations and other 
requirements that the EPA approves for demonstrating attainment and 
maintenance of the NAAQS, protection of PSD increments, improvement of 
visibility and compliance with other

[[Page 33916]]

CAA requirements. As discussed in section X.B of this document, any 
revisions to obligations in the SIP need to occur through the SIP 
revision process and must comply with sections 110(k)(3), 110(l) and 
193 and any other applicable substantive requirements of the CAA.
    As to concerns that a SIP revision will be necessary every time a 
new source comes into existence, an existing source is permanently 
retired or a new regulation is promulgated, the EPA does not see these 
as significant concerns. Unless the startup or shutdown process for an 
individual source is truly unique to that source, then existing SIP 
provisions for sources within the same industrial category should be 
able to apply to any new source. Moreover, assuming any new source is 
subject to permitting obligations, then any applicable startup and 
shutdown issues should already be resolved in developing the permit for 
such source. The state could choose to incorporate that permit by 
reference into the SIP at the time it next modifies its SIP. Further, 
assuming that there is a source-specific regulation for a source in the 
SIP (a circumstance that the EPA believes would occur only rarely), the 
state is not obligated to remove such provision when the source is 
retired. Rather, the state could leave the provision in its rules or 
remove such a provision the next time it submits another SIP revision 
or when it chooses to do a ``cleanup'' of the SIP, an activity that 
numerous states have taken from time to time. Finally, whenever a new 
regulation is promulgated is precisely the time that a state should be 
considering the appropriate provisions that would apply during startup 
and shutdown, as that is the time when the state is considering what is 
necessary to comply with the CAA and what is necessary to meet 
attainment, maintenance or other requirements of the CAA.
    The local government commenter contended that establishing limits 
for startup and shutdown that also demonstrate compliance with the NSR 
regulations (including protection of the NAAQS and PSD increments and 
imposition of BACT- or LAER-level controls) would be a difficult, time-
consuming task that was impractical. The commenter did not provide an 
explanation of how this would be difficult. The implication of the 
comment is that a SIP provision that provides an exemption or an 
affirmative defense for emissions during startup and shutdown would be 
compliant with the statutory requirements and NSR regulations 
(including attainment of the NAAQS and protecting PSD increments). That 
is incorrect because the EPA does not interpret the CAA to allow such 
exemptions or affirmative defenses for purposes of NSR regulations. The 
suggestion that a SIP provision that does not regulate emissions during 
startup and shutdown would be more likely to address NAAQS attainment 
and to protect PSD increments than would a SIP provision that does 
regulate such emissions is illogical. The EPA further notes that the 
Agency's interpretation of the CAA, explicitly set forth in a 1993 
guidance document, has been that periods of startup and shutdown must 
be addressed in any new source permit.\255\ Moreover, the EPA explained 
in the February 2013 proposal, in the SNPR and in the background 
memorandum accompanying the February 2013 proposal concerning the legal 
basis for this action why exemptions and affirmative defenses 
applicable to emissions during SSM events are not consistent with CAA 
requirements for SIP provisions.
---------------------------------------------------------------------------

    \255\ See Memorandum from John B. Rasnic, EPA/OAQPS, January 28, 
1993, in the rulemaking docket at EPA-HQ-OAR-2012-0322-0022.
---------------------------------------------------------------------------

    c. Comments that the EPA should ``authorize'' states to replace SSM 
exemptions with ``work practice'' standards developed by the EPA in its 
own recent NESHAP and NSPS rules.
    Comment: Commenters suggested that the EPA should allow states to 
use work practice standards to address emissions during startup and 
shutdown. The NESHAP rules cited by commenters included the Industrial 
Boiler MACT rule \256\ and the MATS rule, and the NSPS rules cited by 
the commenters included the NSPS for Electric Utility Steam Generating 
Units (40 CFR part 60, subpart Da) and the gas turbine NSPS as examples 
of where the EPA itself has established work practice standards rather 
than numerical emission limitations for periods of startup and 
shutdown. The commenters suggested that where these work practice 
standards are already in place, states should be able to rely on the 
work practice standards rather than having to create new SIP 
provisions.
---------------------------------------------------------------------------

    \256\ The Industrial Boiler MACT rule regulates industrial, 
commercial and institutional boilers and process heaters at major 
sources under 40 CFR part 63, subpart DDDDD.
---------------------------------------------------------------------------

    Response: The EPA agrees that states may adopt work practice 
standards to address periods of startup and shutdown as a component of 
a SIP emission limitation that applies continuously. Adoption of work 
practice standards from a NESHAP or NSPS as a component of an emission 
limitation to satisfy SIP requirements is addressed in this document 
not as a requirement or even as a recommendation but rather as an 
approach that a state may use at its option. The EPA cannot foretell 
the extent to which this optional approach of adopting other existing 
standards to satisfy SIP requirements may benefit an individual state. 
For a state choosing to use this approach, such work practice standards 
must meet the otherwise applicable CAA requirements (e.g., be a RACT-
level control for the source as part of an attainment plan requirement) 
and the necessary parameters to make it legally and practically 
enforceable (e.g., have adequate recordkeeping, reporting and/or 
monitoring requirements to assure compliance). However, it cannot 
automatically be assumed that emission limitation requirements in 
recent NESHAP and NSPS are appropriate for all sources regulated by 
SIPs. The universe of sources regulated under the federal NSPS and 
NESHAP programs is not identical to the universe of sources regulated 
by states for purposes of the NAAQS. Moreover, the pollutants regulated 
under the NESHAP (i.e., HAPs) are in many cases different than those 
that would be regulated for purposes of attaining and maintaining the 
NAAQS, protecting PSD increments, improving visibility and meeting 
other CAA requirements.\257\ Thus, the EPA cannot say as a matter of 
law that those federal regulations establish emission limitation 
requirements appropriate for all of the sources that states are 
regulating in their SIPs or for the purpose for which they are being 
regulated. The EPA believes, however, that those federal regulations 
and the technical materials in the public record for those rules may 
provide assistance for states as they develop and consider regulations 
for sources in their states and may be appropriate for adoption by the 
state in certain circumstances. In particular, the NSPS regulations 
should provide very relevant information for sources of the same type, 
size and control equipment type, even if the sources were not 
constructed or modified within a date range that would make them 
subject to the NSPS. The EPA therefore encourages states to explore 
these approaches, as well as any other relevant information available, 
in

[[Page 33917]]

determining what is appropriate for revised SIP provisions.
---------------------------------------------------------------------------

    \257\ While some HAPs are also VOCs or particulate matter, many 
HAPs are not. Moreover, there are many VOCs and types of particulate 
matter that are not HAPs and thus are not regulated under the MACT 
standards. The MACT standards also do not address other criteria 
pollutants or pollutant precursors from sources that may be relevant 
for SIP purposes.
---------------------------------------------------------------------------

    d. Comments that if states remove existing SSM exemptions and 
replace them with alternative emission limitations that apply during 
startup and shutdown events, this would automatically be consistent 
with the requirements of CAA section 193.
    Comment: Commenters stated that section 193 was included in the CAA 
to prohibit states from modifying regulations in place prior to 
November 15, 1990, unless the modification ensures equivalent or 
greater reductions of the pollutant. The commenters asserted that to 
the extent a state replaces ``general excess emissions exclusions and/
or affirmative defense provisions'' such amendments would per se be 
more stringent than the provisions they replace. The commenters also 
contended that any replacement SIP provision that spells out more 
clearly how a source will operate ensures equivalent or greater 
emission reductions. The commenters urged the EPA to clarify that any 
revisions pursuant to a final SIP call would not be considered 
``backsliding.''
    Response: The EPA agrees with the commenters that any SIP 
submission made by a state in response to this SIP call action will 
need to comply with the requirements of section 193 of the CAA, if that 
section applies to the SIP provision at issue. In addition, such SIP 
provision will also need to comply with section 110(l), which requires 
that SIP revisions do not interfere with attainment, reasonable 
progress or any other applicable requirement of the CAA. However, it is 
premature to draw the conclusion that any SIP revision made by a state 
in response to this SIP call will automatically meet the requirements 
of section 110(l) and section 193. Such a conclusion could only be made 
in the context of reviewing the actual SIP revision. The EPA will 
address this issue, for each SIP revision in response to this SIP call 
action, at the time that it proposes and finalizes action on the SIP 
revision, and any comments on this issue can be raised during those 
individual rulemaking actions. The EPA provides additional guidance to 
states on the analysis needed to comply with section 110(l) and section 
193 in section X.B of this document.

C. Director's Discretion Provisions Pertaining to SSM Events

1. What the EPA Proposed
    In the February 2013 proposal, the EPA stated and explained in 
detail the reasons for its belief that the CAA prohibits unbounded 
director's discretion provisions in SIPs, including those provisions 
that purport to authorize unilateral revisions to, or exemptions from, 
SIP emission limitations for emissions during SSM events.\258\
---------------------------------------------------------------------------

    \258\ See February 2013 proposal, 78 FR 12459 at 12485-86.
---------------------------------------------------------------------------

2. What Is Being Finalized in This Action
    The EPA is reiterating its interpretation of the CAA with respect 
to unbounded director's discretion provisions applicable to emissions 
during SSM events, which is that SIP provisions cannot contain 
director's discretion to alter SIP requirements, including those that 
allow for variances or outright exemptions for emissions during SSM 
events. This interpretation has been clear with respect to emissions 
during SSM events in the SSM Policy since at least 1999. In the 1999 
SSM Guidance, the EPA stated that it would not approve SIP revisions 
``that would enable a State director's decision to bar EPA's or 
citizens' ability to enforce applicable requirements.'' \259\ 
Director's discretion provisions operate to allow air agency personnel 
to make just such unilateral decisions on an ad hoc basis, up to and 
including the granting of complete exemptions for emissions during SSM 
events, thereby negating any possibility of enforcement for what would 
be violations of the otherwise applicable emission limitation. Given 
that the EPA interprets the CAA to bar exemptions from SIP emission 
limitations for emissions during SSM events in the first instance, the 
fact that director's discretion provisions operate to authorize these 
exemptions on an ad hoc basis compounds the problem. The EPA 
acknowledges, however, that both states and the Agency have, in some 
instances, failed to adhere to the requirements of the CAA with respect 
to this issue consistently in the past, and thus the need for this SIP 
call to correct existing deficiencies in SIPs.\260\ In order to be 
clear about its interpretation of the CAA with respect to this point on 
a going-forward basis, the EPA is reiterating in this action that SIP 
provisions cannot contain unbounded director's discretion provisions, 
including those that operate to allow for variances or outright 
exemptions from SIP emission limitations for excess emissions during 
SSM events.
---------------------------------------------------------------------------

    \259\ See 1999 SSM Guidance at 3.
    \260\ In this action, the EPA is addressing the specific SIP 
provisions with director's discretion provisions that the Petitioner 
listed in the Petition. In the event that there are other such 
impermissible director's discretion provisions in existing SIPs, the 
EPA will address those provisions in a later action.
---------------------------------------------------------------------------

    Many commenters on the February 2013 proposal opposed the EPA's 
interpretation of the CAA with respect to director's discretion 
provisions simply on the grounds that states are per se entitled to 
have unfettered discretion with respect to the content of their SIP 
provisions. Other commenters argued that any director's discretion 
provision is merely a manifestation of an air agency's general 
``enforcement discretion.'' Some commenters simply asserted that recent 
court decisions by the Fifth Circuit definitively establish that the 
CAA does not prohibit SIP provisions that include director's 
discretion, regardless of whether those provisions contain any 
limitations whatsoever on the exercise of that discretion.\261\ The 
commenters did not, however, address the specific statutory 
interpretations that the EPA set forth in the February 2013 proposal to 
explain why SIP provisions that authorize unlimited director's 
discretion are prohibited by CAA provisions applicable to SIP 
revisions.
---------------------------------------------------------------------------

    \261\ For example, commenters on the February 2013 proposal 
cited two decisions of the Fifth Circuit within which the court 
cited a prior EPA approval of a SIP revision in Georgia that 
contained director's discretion provisions supposedly comparable to 
those at issue in the Fifth Circuit cases. These provisions were not 
included in the Petition and the EPA is not reexamining those 
provisions as part of this action.
---------------------------------------------------------------------------

    As explained in detail in the February 2013 proposal and in section 
VII.C of this document, the EPA interprets the CAA to prohibit SIP 
provisions that include unlimited director's discretion to alter the 
SIP emission limitations applicable to sources, including those that 
operate to allow exemptions for emissions from sources during SSM 
events. The EPA believes that such provisions that operate to authorize 
total exemptions from emission limitations on an ad hoc basis are 
especially problematic. Given that the EPA interprets section 
110(a)(2)(A) and section 302(k) to preclude exemptions for emissions 
during SSM events in emission limitations in the first instance, it is 
also impermissible for states to have SIP provisions that authorize 
such exemptions on an ad hoc basis. These provisions functionally allow 
the air agency to impose its own enforcement discretion decisions on 
the EPA and other parties by granting exemptions for emissions that 
should be treated as violations of the applicable SIP emission 
limitations. Provisions that functionally allow such exemptions are 
also inconsistent with requirements of the CAA related to enforcement

[[Page 33918]]

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

    \262\ 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, 1346 (11th 
Cir. 2005) (``If a state wants to add, delete, or otherwise modify a 
SIP provision, it must submit the proposed change to EPA for 
approval''); Duquesne Light Co. v. EPA, 698 F.2d 456, 468 n.12 (D.C. 
Cir. 1983) (``with certain enumerated exceptions, states do not have 
the power to take any action modifying any requirement of their 
SIPs, without approval from EPA''); Train v. NRDC, 421 U.S. 60, 92 
(1975) (``[A] polluter is subject to existing requirements until 
such time as he obtains a variance, and variances are not available 
under the revision authority until they have been approved by both 
the State and the Agency'').
---------------------------------------------------------------------------

    b. Comments that director's discretion provisions are an exercise 
of ``enforcement discretion.''
    Comment: Several state and industry commenters asserted that the 
EPA was wrong to interpret the CAA to preclude director's discretion 
provisions, because such provisions are merely an exercise of a state's 
traditional ``enforcement discretion.''
    Response: The EPA disagrees that a director's discretion provision 
in a SIP is a valid exercise of enforcement discretion. Normally, the 
concept of enforcement discretion is understood to mean that a 
regulator has discretion to determine whether a specific violation

[[Page 33919]]

of the law by a source warrants enforcement and to determine the nature 
of the remedy to seek for any such violation. The EPA of course agrees 
that states have enforcement discretion of this type and that the 
states may exercise such enforcement discretion as they see fit, as 
does the Agency itself. However, the EPA does not agree that air 
agencies may create SIP provisions that operate to eliminate the 
ability of the EPA or citizens to enforce the emission limitations of 
the SIP. The EPA stated clearly in the 1999 SSM Guidance that it would 
not approve SIP provisions that ``would enable a State director's 
decision to bar EPA's or citizens' ability to enforce applicable 
requirements.'' \264\ The Agency explained at that time that such an 
approach is inconsistent with the requirements of the CAA applicable to 
the enforcement of SIPs.
---------------------------------------------------------------------------

    \264\ 1999 SSM Guidance at 3.
---------------------------------------------------------------------------

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

[[Page 33920]]

limitation without meeting the requirements for a SIP revision. In 
particular, when such provisions authorize state personnel to grant 
outright exemptions from the SIP emission limitations, this is 
tantamount to a revision of the SIP emission limitation without 
complying with the procedural and substantive requirements of the CAA 
applicable to SIP revisions, including section 110(l), section 193 and 
any other substantive requirements applicable to the particular SIP 
emission limitation in question.
    d. Comments that director's discretion provisions in SIPs are not 
prohibited by the CAA, based on recent judicial decisions.
    Comment: A number of state and industry commenters argued that 
nothing in the CAA explicitly prohibits states from having SIP 
provisions that include director's discretion authorization for state 
personnel to modify or eliminate existing SIP provisions unilaterally, 
with or without any process or within any limiting parameters. In 
support of this proposition, the commenters cited recent decisions of 
the Fifth Circuit in two cases concerning the EPA's disapproval of SIP 
submissions from the state of Texas. Commenters argued that the EPA's 
interpretation of the CAA to prohibit director's discretion provisions 
in SIPs is incorrect in light of the decision of the court in Texas v. 
EPA.\265\ According to commenters, the court's decision establishes 
that no provision of the CAA bars such provisions. To support this 
contention, one commenter quoted the court's decision extensively, 
highlighting the statement, ``. . . the EPA has invoked the term 
`director discretion' as if that term were an independent and 
authoritative standard, and has not linked the term to the language of 
the CAA.'' Similarly, the commenters cited another decision of that 
court in the Luminant director's discretion case.\266\ From that 
decision, commenters quoted the court's statement that the ``EPA had no 
legal basis to demand `replicable' limitations on the Director's 
discretion'' and the succeeding sentence, ``[n]ot once in its proposed 
or final disapproval, or in its argument before this court, has the EPA 
pointed to any applicable provision of the Act or its regulations that 
includes a `replicability' standard.'' These commenters did not, 
however, address the specific statutory provisions identified by the 
EPA in the February 2013 proposal and the explanation that the Agency 
provided with respect to this issue.
---------------------------------------------------------------------------

    \265\ 690 F.3d 670 (5th Cir. 2012).
    \266\ Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 
2012). Throughout this document, the EPA refers to this as the 
Luminant director's discretion case, to distinguish it from another 
Luminant case cited in this document, Luminant Generation v. EPA, 
714 F.3d 841 (5th Cir. 2013).
---------------------------------------------------------------------------

    Response: The EPA disagrees that either decision cited by 
commenters stands for the definitive proposition they assert, i.e., 
that director's discretion provisions in SIPs are not precluded by the 
CAA. In Luminant Generation Co. v. EPA (the Luminant director's 
discretion case), the court evaluated the EPA's disapproval of a SIP 
submission from the state of Texas that created SIP provisions to 
implement minor source permitting requirements. The EPA disapproved the 
SIP submission for several reasons, one of which was based on the 
director's discretion provision prohibiting use of the standard permit 
for a pollution control project that the director determines raises 
health concerns or threatens the NAAQS. The EPA was concerned that this 
provision gave the director of the state agency discretion to make 
case-by-case decisions about what the specific permit terms would be 
for each source, without sufficient parameters or limitations on the 
exercise of that authority. Thus, the EPA reasoned that without any 
boundaries on the exercise of this authority for director's discretion, 
it would be impossible for the Agency to know in advance (i.e., at the 
time of acting on the SIP submission) whether the state agency would 
only use that discretion in a way that would result in permits with 
terms consistent with meeting CAA requirements.\267\ As the EPA 
explained in the rulemaking at issue in the Luminant director's 
discretion case, ``[t]here are no replicable conditions in the PCP 
Standard Permit that specify how the [TCEQ] Director's discretion is to 
be implemented'' for the individual case-by-case determinations.\268\ 
In other words, the EPA was being asked to approve a SIP provision 
without knowing how the SIP provision would actually be implemented and 
thus without knowing whether the results would be consistent with 
applicable CAA requirements.
---------------------------------------------------------------------------

    \267\ The EPA notes that the court in the Luminant director's 
discretion case focused on the fact that the director's discretion 
provision included the discretion to require more of sources, if 
there ``are health effects concerns or the potential to exceed the 
[NAAQS],'' and the court expressed that it did not understand why 
that requirement was not alone adequate to allay the Agency's 
concerns. Luminant Generation Co. v. EPA, 675 F.3d 917, 929 n.11. 
The EPA's primary concern, although not clearly articulated in the 
rulemaking record, was that at the time of acting on the SIP 
submission, there was no way for the Agency to know in advance what 
the state would require of any source in the first instance, let 
alone what additional things the state might require in situations 
where it unilaterally decided that more might be necessary in any 
given permit.
    \268\ See ``Approval and Promulgation of Implementation Plans; 
Texas; Revisions to the New Source Review (NSR) State Implementation 
Plan (SIP); Prevention of Significant Deterioration (PSD), 
Nonattainment NSR (NNSR) for the 1997 8-Hour Ozone Standard, NSR 
Reform, and a Standard Permit; Proposed rule,'' 74 FR 48467 at 48476 
(September 23, 2009).
---------------------------------------------------------------------------

    As the commenters stated, the court in the Luminant director's 
discretion case vacated the EPA's disapproval of the SIP submission for 
several reasons, including the rejection of the Agency's argument that 
it could not approve the SIP submission due to the director's 
discretion feature of the SIP provisions and the resulting lack of 
``replicability.'' \269\ The court found that the EPA ``failed to 
identify a single provision of the Act that Texas's program violated, 
let alone explain its reasons for reaching its conclusion.'' \270\ With 
respect to the director's discretion issue, phrased in terms of 
``replicability,'' the court found that ``[n]ot once in its proposed or 
final disapproval, or in its argument before this court, has the EPA 
pointed to any applicable provision of the Act or its regulations that 
include a `replicability' standard.''
---------------------------------------------------------------------------

    \269\ The term ``replicable'' was taken from EPA guidance 
concerning SIP provisions for attainment plans. As a ``fundamental 
principle'' for SIP provisions and permits, the EPA explained that 
the requirements imposed upon sources should be ``replicable''; 
i.e., if they contain ``procedures for changing the rule, 
interpreting the rule, or determining compliance with the rule, the 
procedures are sufficiently specific and nonsubjective so that two 
independent entities applying the same procedures would obtain the 
same result.'' See General Preamble, 57 FR 13498 at 13568 (April 16, 
1992). The EPA's intent in using this term, although not clearly 
expressed in the rulemaking record, has been to indicate that a 
properly constructed SIP provision with an appropriate degree of 
discretion and flexibility would contain sufficient specifications 
and limits on the exercise of that discretion such that the Agency 
could adequately evaluate the provision at the time of its 
submission. Absent sufficient limits on the discretion, the EPA 
could not properly evaluate how exercise of the discretion could 
affect compliance with CAA requirements.
    \270\ 675 F.3d 917, 924 (5th Cir. 2012).
---------------------------------------------------------------------------

    The EPA believes that the court's decision in the Luminant 
director's discretion case is distinguishable on several important 
grounds. Most importantly, the court rejected the EPA's disapproval of 
the SIP submission because the Agency had not provided an adequate 
explanation of why the director's discretion provision at issue was 
inconsistent with the requirements of the CAA for SIP provisions. The 
court emphasized the absence of any explanation in the administrative 
record for the proposed or final actions that

[[Page 33921]]

explained which specific provisions of the CAA preclude such a 
provision and why. In the February 2013 proposal and in this document, 
the EPA has identified and explained the specific CAA provisions that 
operate to preclude unbounded director's discretion provisions in SIPs.
    Second, the court in the Luminant director's discretion case based 
its decision in part on the view that the specific director's 
discretion provision at issue in that case would always result in more 
stringent regulation of affected sources and always entail exercise of 
the discretion in a way that would protect the NAAQS.\271\ Although its 
view was not articulated clearly in the record, the EPA did not agree 
with that assessment because it was not possible to evaluate in advance 
how the director's discretion authority would in fact be exercised. By 
contrast, the SIP provisions at issue in this action are not structured 
in such a way as to allow the exercise of discretion only to make the 
emission limitations more stringent. To the contrary, the director's 
discretion provisions at issue in this action authorize the state 
agencies to excuse sources from compliance with the otherwise 
applicable SIP emission limitation during SSM events. Were the sources 
seeking these discretionary exemptions meeting the applicable SIP 
emission limitations, they would not need an exemption. It logically 
follows that sources are seeking these exemptions because their 
emissions during such events are higher than the otherwise applicable 
emission limitation allows. Unlike the specific director's discretion 
provision at issue in the Luminant director's discretion case, which 
the court said ``can only serve to protect the NAAQS,'' the exercise of 
the director's discretion authority in the SIP provisions at issue in 
this action can operate to make the emission limitations less stringent 
and can thereby undermine attainment and maintenance of the NAAQS, 
protection of PSD increments, improvement of visibility and achievement 
of other CAA objectives.
---------------------------------------------------------------------------

    \271\ Luminant Generation Co. v. EPA, 675 F.3d 917, 929 n.11 
(``The provision at issues states: ``This standard permit must not 
be used [if] the executive director determines there are health 
effects concerns or the potential to exceed a [NAAQS] . . . until 
those concerns are addressed to the satisfaction of the executive 
director.'').
---------------------------------------------------------------------------

    In the Texas decision, the court evaluated the EPA's disapproval of 
another SIP submission from the state of Texas that pertained to 
requirements for the permitting program for minor sources. The EPA had 
disapproved the submission for several different reasons, including 
that the Agency believed the specific provisions at issue provided the 
state agency with too much director's discretion authority to decide 
what, if any, monitoring, recordkeeping and reporting requirements 
should be imposed on any individual affected source in its permit. The 
EPA concluded that if at the time it was evaluating the SIP provision 
for approval it could not reasonably anticipate how the state agency 
would exercise the discretion authorized in the provision, this made 
the submission unapprovable ``for being too vague and not replicable.'' 
\272\ The Texas court disagreed. The court concluded that the ``degree 
of discretion conferred on the TCEQ director cannot sustain the EPA's 
rejection of the MRR requirements'' and that the EPA insisted on ``some 
undefined limit on a director's discretion . . . based on a standard 
that the CAA does not empower the EPA to enforce.'' \273\
---------------------------------------------------------------------------

    \272\ Id., 690 F.3d 670, 680.
    \273\ Id., 690 F.3d 670, 682.
---------------------------------------------------------------------------

    The EPA believes that the decision of the court in Texas v. EPA is 
also distinguishable with respect to the issue of whether director's 
discretion provisions are consistent with CAA requirements. First, the 
Texas court based its decision primarily on the conclusion that the EPA 
had failed to identify and explain the provisions of the CAA that (i) 
preclude approval of SIP provisions that include unbounded director's 
discretion or (ii) impose a requirement for ``replicability'' in the 
exercise of director's discretion. The Texas court emphasized that 
although the EPA disapproved the SIP submission for failure to meet CAA 
requirements, the court found that the EPA ``is yet to explain why.'' 
\274\ The court further reasoned that ``the EPA has invoked the term 
`director discretion' as if that term were an independent and 
authoritative standard, and has not linked the term to language of the 
CAA.'' \275\ Later in the opinion the court explicitly emphasized that 
because it was reviewing the EPA's decisionmaking process in the 
disapproval action, the court could not consider any basis for the 
disapproval that was not articulated by the EPA in the rulemaking 
record.\276\ The EPA is explaining its interpretation of the relevant 
CAA provisions in this action.
---------------------------------------------------------------------------

    \274\ Id., 690 F.3d 670, 681.
    \275\ Id.
    \276\ Id., 690 F.3d 670, 682.
---------------------------------------------------------------------------

    Second, the Texas court also asserted its own conclusion that there 
is nothing in the CAA that pertains to director's discretion in SIP 
provisions or to any limitations on the exercise of such discretion. As 
the court stated it:

    There is, in fact, no independent and authoritative standard in 
the CAA or its implementing regulations requiring that a state 
director's discretion be cabined in the way that the EPA suggests. 
Therefore, the EPA's insistence on some undefined limit on a 
director's discretion is . . . based on a standard that the CAA does 
not empower the EPA to enforce.

However, the court reached this conclusion based upon the 
administrative record before it and reiterated that it could not 
consider any basis for the disapproval not articulated by the EPA in 
the rulemaking record: ``We are reviewing an agency's decisionmaking 
process, so the agency's action must be upheld, if at all, on the basis 
articulated by the agency itself.'' \277\ Given the court's conclusion 
that the EPA had failed to provide any explanation as to why the CAA 
precludes director's discretion provisions in the challenged 
rulemaking, the EPA believes that the court did not have the 
opportunity to consider the Agency's rationale that is provided in this 
action. In the February 2013 proposal and in this document, the EPA is 
heeding the court's admonishment to explain in the rulemaking record 
the statutory basis for the Agency's interpretation of the CAA to 
prohibit director's discretion provisions that are inadequately 
bounded. As explained in this action, SIP provisions that functionally 
authorize a state agency to amend existing SIP emission limitations 
applicable to a source unilaterally without a SIP revision are contrary 
to multiple specific provisions of the CAA that pertain to SIP 
revisions.
---------------------------------------------------------------------------

    \277\ Id., 690 F.3d 670, 682.
---------------------------------------------------------------------------

    Third, the Texas court emphasized that, notwithstanding the 
apparent flexibility that the director's discretion provision provided 
to the state agency with respect to deciding on the level of 
monitoring, recordkeeping and reporting to be imposed on each source by 
permit, the state's regulations explicitly prohibited relaxations of 
the level of control. The court gave weight to the explicit wording of 
the specific provision at issue in the case which provided that ``[t]he 
existing level of control may not be lessened for any facility.'' \278\ 
The EPA does not agree that the specific requirements for monitoring, 
recordkeeping and reporting for a given source are unrelated to the 
level of control. In any event, the director's discretion provisions of 
the type at issue in this

[[Page 33922]]

action are not limited to those that would not ``lessen'' the level of 
control. To the contrary, the provisions at issue in this SIP call 
action authorize state agency personnel to grant outright exemptions 
from otherwise applicable SIP emission limitations during SSM events. 
Thus, the EPA concludes that this portion of the reasoning of the Texas 
decision would not apply to the current action.
---------------------------------------------------------------------------

    \278\ Id., 690 F.3d 670, 681.
---------------------------------------------------------------------------

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

[[Page 33923]]

emission limitation in a SIP provision (or an EPA regulation 
promulgated pursuant to sections 111 or 112), section 116 explicitly 
stipulates, ``such State or political subdivision may not adopt or 
enforce any emission standard or emission limitation which is less 
stringent than the standard or limitation under such plan or 
limitation.'' Thus, a state could elect to regulate a source more 
stringently than required by a specific SIP emission limitation (e.g., 
by imposing a more stringent numerical emission limitation on a 
particular source or by imposing additional recordkeeping, reporting 
and monitoring requirements in addition to those of the SIP provision), 
but the state cannot weaken or eliminate the SIP emission limitation 
(e.g., by granting exemptions from applicable SIP emission limitations 
for emissions during SSM events). If a state elects to alter an 
emission limitation in a SIP provision, the state must do so in 
accordance with the statutory provisions applicable to SIP revisions.
    Finally, the EPA notes, if a state elects to use a permitting 
process as a source-by-source means of imposing more stringent emission 
limitations or additional requirements on sources, doing so can be an 
acceptable approach. So long as the underlying SIP provisions are 
adequate to provide the requisite level of control or requirements to 
assure enforceability, a state is free to use a permitting program to 
impose additional requirements above and beyond those provided in the 
SIP.

D. Enforcement Discretion Provisions Pertaining to SSM Events

1. What the EPA Proposed
    In the February 2013 proposal, the EPA explained in detail that it 
believes that the CAA allows states to adopt SIP provisions that impose 
reasonable limits upon the exercise of enforcement discretion by air 
agency personnel, so long as those provisions do not apply to the EPA 
or other parties. The EPA believes that its interpretation of the CAA 
with respect to enforcement discretion provisions applicable to 
emissions during SSM events has been clear in the SSM Policy. In the 
1982 SSM Guidance and the 1983 SSM Guidance, the EPA indicated that 
states could elect to adopt SIP provisions that include criteria that 
apply to the exercise of enforcement discretion by state personnel. In 
the 1999 SSM Guidance, the EPA emphasized that it would not approve 
such provisions if they would operate to impose the state's enforcement 
discretion decisions upon the EPA or other parties because this would 
be inconsistent with requirements of title I of the CAA.\279\ The EPA 
acknowledged, however, that both the states and the Agency have failed 
to adhere to the CAA with respect to this issue in the past, and thus 
the need for this SIP call action to correct the existing deficiencies 
in SIPs.
---------------------------------------------------------------------------

    \279\ See 1999 SSM Guidance at 3.
---------------------------------------------------------------------------

2. What Is Being Finalized in This Action
    In order to be clear about this important point on a going-forward 
basis, the EPA is reiterating that SIP provisions cannot contain 
enforcement discretion provisions that would bar enforcement by the EPA 
or citizens for any violation of SIP requirements if the state elects 
not to enforce.
    The EPA has previously issued a SIP call to a state specifically 
for purposes of clarifying an existing SIP provision to assure that 
regulated entities, regulators and courts will not misunderstand the 
correct interpretation of the provision.\280\ As the EPA stated in that 
action:
---------------------------------------------------------------------------

    \280\ See ``Finding of Substantial Inadequacy of Implementation 
Plan; Call for Utah State Implementation Plan Revision,'' 75 FR 
70888 at 70892-93 (November 19, 2010) (proposed SIP call, inter 
alia, to rectify an enforcement discretion provision that in fact 
appeared to bar enforcement by the EPA or citizens if the state 
decided not to enforce).

. . . SIP provisions that give exclusive authority to a state to 
determine whether an enforcement action can be pursued for an 
exceedance of an emission limit are inconsistent with the CAA's 
regulatory scheme. EPA and citizens, and any court in which they 
seek to file an enforcement claim, must retain the authority to 
independently evaluate whether a source's exceedance of an emission 
limit warrants enforcement action.\281\
---------------------------------------------------------------------------

    \281\ See id.

    The EPA has explained in previous iterations of its SSM Policy that 
a fundamental principle of the CAA with respect to SIP provisions is 
that the provisions must be enforceable not only by the state but also 
by the EPA and others pursuant to the citizen suit authority of section 
304. Accordingly, the EPA has long stated that SIP provisions cannot be 
structured such that a decision by the state not to enforce may bar 
enforcement by the EPA or other parties.
3. Response to Comments
    The EPA received a small number of comments concerning the issue of 
ambiguous enforcement discretion provisions in SIPs. For clarity and 
ease of discussion, the EPA is responding to these comments, grouped by 
issue, in this section of this document.
    a. Comments that supported the clarification of ambiguous 
enforcement discretion provisions in general but opposed the EPA's 
views with respect to specific SIP provisions.
    Comment: Environmental group commenters disagreed with the EPA's 
proposed denial of the Petition with respect to specific enforcement 
discretion provisions in the SIPs of several states. The commenters 
contended that the SIP provisions are too ambiguous for courts to 
recognize that the exercise of enforcement discretion by state 
personnel did not preclude enforcement by the EPA or others.
    Response: The EPA disagrees with these comments. In the February 
2013 proposal, the EPA explained how it reads the specific enforcement 
discretion provisions in the SIPs of each of these states. The EPA 
explained its evaluation of these provisions in detail. In comments 
submitted on the February 2013 proposal, the states in question agreed 
with the EPA's reading of the provisions. Each state agreed that these 
provisions only applied to air agency personnel and not to the EPA or 
any other party. Thus, the EPA believes that there should be no dispute 
about the proper interpretation of these SIP provisions in any 
potential future enforcement action.
    b. Comments that opposed the EPA's issuing SIP calls to obtain 
state agency clarification of ambiguous enforcement discretion 
provisions in SIPs.
    Comment: One commenter asserted that requiring states to correct an 
ambiguous ``enforcement discretion'' provision in its SIP in order to 
eliminate ``perceived ambiguity'' is a ``waste of resources.'' Although 
agreeing that a state's exercise of enforcement discretion cannot 
affect enforcement by the EPA or other parties under the citizen suit 
provision, the commenter believed that the existence of ambiguous 
provisions that could be misconstrued by a court to bar enforcement by 
the EPA or others if the state elects not to enforce is not a 
significant concern.
    Response: The EPA agrees with the commenter that a state's 
legitimate exercise of enforcement discretion not to enforce in the 
event of violations of SIP provisions should have no bearing whatsoever 
on whether the EPA or others may seek to enforce for the same 
violations. However, the Agency disagrees with the commenter concerning 
whether some SIP provisions need to be clarified in order to assure 
that this principle is adhered to in practice in enforcement actions. 
For example, if on the face of an approved SIP provision the state

[[Page 33924]]

appears to have the unilateral authority to decide that a specific 
event is not a ``violation'' or if it otherwise appears that if the 
state elects not to pursue enforcement for such violation then no other 
party may do so, then that SIP provision fails to meet fundamental 
legal requirements for enforcement under the CAA. If the SIP provision 
appears to provide that the decision of the state not to enforce for an 
exceedance of the SIP emission limit bars the EPA or others from 
bringing an enforcement action, then that is an impermissible 
imposition of the state's enforcement discretion decisions on other 
parties. The EPA has previously issued a SIP call to resolve just such 
an ambiguity, and its authority to do so has been upheld.\282\ Given 
that the commenter agrees with the underlying principle that a state's 
exercise of enforcement discretion should have no bearing on the 
exercise of enforcement authority of the EPA or citizens, the Agency 
presumes that the commenter would not in fact oppose a SIP revision to 
clarify that point. Moreover, the commenter would not be harmed by such 
a SIP revision and would have no basis upon which to challenge it. As 
the clarification of the ambiguous SIP provision should be in the 
interest of all involved, including the regulated entities, the 
regulators and the public, the EPA does not believe that resources used 
to eliminate such ambiguities would be wasted.
---------------------------------------------------------------------------

    \282\ See ``Finding of Substantial Inadequacy of Implementation 
Plan; Call for Utah State Implementation Plan Revision; Proposed 
rule,'' 76 FR 21639 (April 18, 2011).
---------------------------------------------------------------------------

E. Affirmative Defense Provisions in SIPs During Any Period of 
Operation

    As explained in detail in the SNPR, the EPA believes that the CAA 
prohibits affirmative defense provisions in SIPs. The EPA acknowledges 
that since the 1999 SSM Guidance, the Agency had interpreted the CAA to 
allow narrowly tailored affirmative defense provisions. However, the 
EPA's interpretation of the statute was based on arguments that have 
since been rejected by the DC Circuit in the NRDC v. EPA decision. The 
EPA received a substantial number of comments, both supportive and 
adverse, concerning the issue of affirmative defense provisions in 
SIPs. These comments and the EPA's responses to them are discussed in 
section IV.D of this document.

F. Relationship Between SIP Provisions and Title V Regulations

    As the EPA explained in the February 2013 proposal, the SIP 
provisions identified in the Petition highlighted an area of potential 
ambiguity or conflict between the SSM Policy applicable to SIP 
provisions and the EPA's regulations applicable to CAA title V 
operating permit provisions. The EPA has promulgated regulations in 40 
CFR part 70 applicable to state operating permit programs and in 40 CFR 
part 71 applicable to federal operating permit programs.\283\ Under 
each set of regulations, the EPA has provided that permits may contain, 
at the permitting authority's discretion, an ``emergency provision.'' 
\284\
---------------------------------------------------------------------------

    \283\ See 40 CFR 70.1-70.12; 40 CFR 71.1-71.27.
    \284\ See 40 CFR 70.6(g); 40 CFR 71.6(g). The EPA also notes 
that states are not required to adopt the ``emergency provision'' 
contained in 40 CFR 70.6(g) into their state operating permit 
programs, and many states have chosen not to do so. See, e.g., 
``Clean Air Act Full Approval of Partial Operating Permit Program; 
Allegheny County; Pennsylvania; Direct final rule,'' 66 FR 55112 at 
55113 (November 1, 2001).
---------------------------------------------------------------------------

    The regulatory parameters applicable to such emergency provisions 
in operating permits are the same for state operating permit program 
regulations and the federal operating permit program regulations. The 
definition of emergency is identical in the regulations for each 
program.\285\
---------------------------------------------------------------------------

    \285\ See 40 CFR 70.6(g)(1); 40 CFR 71.6(g)(1).
---------------------------------------------------------------------------

    Thus, if there is an emergency event meeting the regulatory 
definition, then the EPA's regulations for operating permit programs 
provide for an ``affirmative defense'' to enforcement for noncompliance 
with technology-based standards during the emergency event, provided 
the source can demonstrate through specified forms of evidence that the 
event and the permittee's actions during and after the event met a 
number of specific requirements.\286\
---------------------------------------------------------------------------

    \286\ 40 CFR 70.6(g)(3); 40 CFR 71.6(g)(3).
---------------------------------------------------------------------------

    The Petitioner did not directly request that the EPA evaluate the 
existing regulatory provisions applicable to operating permits in 40 
CFR part 70 and 40 CFR part 71, and the EPA is not revising those 
provisions in this action. In its February 2013 proposal, the EPA 
explained that while it was proposing to allow narrowly drawn 
affirmative defense provisions for malfunctions in SIPs, SIP provisions 
that were modeled after the regulations in 40 CFR part 70 and 40 CFR 
part 71 were still in conflict with the EPA's interpretation of the CAA 
for SIP provisions and thus could not be allowed.\287\ However, as 
explained in the SNPR, the reasoning in the subsequent NRDC v. EPA 
court decision is that even narrowly defined affirmative defense 
provisions in SIPs are no longer consistent with the CAA.\288\ 
Accordingly, regardless of whether affirmative defense provisions in 
SIPs were defined more narrowly than were the provisions applicable to 
operating permits under 40 CFR part 70 and 40 CFR part 71, they cannot 
be included in SIPs. For these reasons, the EPA has evaluated the 
specific SIP provisions identified in the Petition and is taking final 
action to find substantial inadequacy and to issue a SIP call for those 
SIP provisions that include features that are inappropriate for SIPs, 
regardless of whether those provisions contain terms found in other 
regulations.
---------------------------------------------------------------------------

    \287\ See February 2013 proposal, 78 FR 12459 at 12481-82.
    \288\ See SNPR, 79 FR 55919 at 55929-30.
---------------------------------------------------------------------------

    Additionally, we are not taking action in this rulemaking to alter 
the emergency provisions found in 40 CFR part 70 and 40 CFR part 71. 
Those regulations, which are applicable to title V operating permits, 
may only be changed through appropriate rulemaking to revise parts 70 
and 71. Further, any existing permits that contain such emergency 
provisions may only be changed through established permitting 
procedures. The EPA is considering whether to make changes to 40 CFR 
part 70 and 40 CFR part 71, and if so, how best to make those changes. 
In any such action, EPA would also intend to address the timing of any 
changes to existing title V operating permits. Until that time, as part 
of normal permitting process, the EPA encourages permitting authorities 
to consider the discretionary nature of the emergency provisions when 
determining whether to continue to include permit terms modeled on 
those provisions in operating permits that the permitting authorities 
are issuing in the first instance or renewing.

G. Intended Effect of the EPA's Action on the Petition

    As in the 2001 SSM Guidance, the EPA is endeavoring to be 
particularly clear about the intended effect of its final action on the 
Petition, of its clarifications and revisions to the SSM Policy and of 
its application of the updated SSM Policy to the specific existing SIP 
provisions discussed in section IX of this document.
    First, the EPA only intends its actions on the larger policy or 
legal issues raised by the Petitioner to inform the public of the EPA's 
current views on the requirements of the CAA with respect to SIP 
provisions related to SSM events. Thus, for example, the EPA's proposed 
grant of the Petitioner's request that the EPA interpret the CAA to 
disallow all affirmative defense provisions is intended to convey that 
the EPA has

[[Page 33925]]

changed its views about such provisions and that its prior views 
expressed in the 1999 SSM Guidance and related rulemakings on SIP 
submissions were incorrect. In this fashion, the EPA's action on the 
Petition provides updated guidance relevant to future SIP actions.
    Second, the EPA only intends its actions on the specific existing 
SIP provisions identified in the Petition to be applicable to those 
provisions. The EPA does not intend its action on those specific 
provisions to alter the current status of any other existing SIP 
provisions relating to SSM events. The EPA must take later rulemaking 
actions, if necessary, in order to evaluate any comparable deficiencies 
in other existing SIP provisions that may be inconsistent with the 
requirements of the CAA. Again, however, the EPA's actions on the 
Petition provide updated guidance on the types of SIP provisions that 
it believes would be consistent with CAA requirements in future 
rulemaking actions.
    Third, the EPA does not intend its action on the Petition to affect 
immediately any existing permit terms or conditions regarding excess 
emissions during SSM events that reflect previously approved SIP 
provisions. The EPA's finding of substantial inadequacy and a SIP call 
for a given state provides the state time to revise its SIP in response 
to the SIP call through the necessary state and federal administrative 
process. Thereafter, any needed revisions to existing permits will be 
accomplished in the ordinary course as the state issues new permits or 
reviews and revises existing permits. The EPA does not intend the 
issuance of a SIP call to have automatic impacts on the terms of any 
existing permit.
    Fourth, the EPA does not intend its action on the Petition to alter 
the emergency defense provisions at 40 CFR 70.6(g) and 40 CFR 71.6(g), 
i.e., the title V regulations pertaining to ``emergency provisions'' 
permissible in title V operating permits. The EPA's regulations 
applicable to title V operating permits may only be changed through 
appropriate rulemaking procedures and existing permit terms may only be 
changed through established permitting processes.
    Fifth, the EPA does not intend its interpretations of the 
requirements of the CAA in this action on the Petition to be legally 
dispositive with respect to any particular current enforcement 
proceedings in which a violation of SIP emission limitations is alleged 
to have occurred. The EPA handles enforcement matters by assessing each 
situation, on a case-by-case basis, to determine the appropriate 
response and resolution. For purposes of alleged violations of SIP 
provisions, however, the terms of the applicable SIP provision will 
continue to govern until that provision is revised following the 
appropriate process for SIP revisions, as required by the CAA.
    Finally, the EPA does intend this final action, developed through 
notice and comment, to be the statement of its most current SSM Policy, 
reflecting the EPA's interpretation of CAA requirements applicable to 
SIP provisions related to excess emissions during SSM events. In this 
regard, the EPA is adding to and clarifying its prior statements in the 
1999 SSM Guidance and making the specific changes to that guidance as 
discussed in this action. Thus, this final notice for this action will 
constitute the EPA's SSM Policy on a going-forward basis.

VIII. Legal Authority, Process and Timing for SIP Calls

A. SIP Call Authority Under Section 110(k)(5)

1. General Statutory Authority
    The CAA provides a mechanism for the correction of flawed SIPs, 
under CAA section 110(k)(5), which provides that ``[w]henever the 
Administrator finds that the applicable implementation plan for any 
area is substantially inadequate to attain or maintain the relevant 
national ambient air quality standards, to mitigate adequately the 
interstate pollutant transport described in section [176A] of this 
title or section [184] of this title, or to otherwise comply with any 
requirement of [the Act], the Administrator shall require the State to 
revise the plan as necessary to correct such inadequacies. The 
Administrator shall notify the State of the inadequacies and may 
establish reasonable deadlines (not to exceed 18 months after the date 
of such notice) for the submission of such plan revisions.''
    By its explicit terms, this provision authorizes the EPA to find 
that a state's existing SIP is ``substantially inadequate'' to meet CAA 
requirements and, based on that finding, to ``require the State to 
revise the [SIP] as necessary to correct such inadequacies.'' This type 
of action is commonly referred to as a ``SIP call.'' \289\
---------------------------------------------------------------------------

    \289\ The EPA also has other discretionary authority to address 
incorrect SIP provisions, such as the authority in CAA section 
110(k)(6) for the EPA to correct errors in prior SIP approvals. The 
authority in CAA section 110(k)(5) and CAA section 110(k)(6) can 
sometimes overlap and offer alternative mechanisms to address 
problematic SIP provisions. In this instance, the EPA believes that 
the mechanism provided by CAA section 110(k)(5) is the better 
approach, because using the mechanism of the CAA section 110(k)(6) 
error correction would eliminate the affected emission limitations 
from the SIP potentially leaving no emission limitation in place, 
whereas the mechanism of the CAA section 110(k)(5) SIP call will 
keep the provisions in place during the pendency of the state's 
revision of the SIP and the EPA's action on that revision. In the 
case of provisions that include impermissible automatic exemptions 
or discretionary exemptions, the EPA believes that retention of the 
existing SIP provision is preferable to the absence of the provision 
in the interim.
---------------------------------------------------------------------------

    Significantly, CAA section 110(k)(5) explicitly authorizes the EPA 
to issue a SIP call ``whenever'' the EPA makes a finding that the 
existing SIP is substantially inadequate, thus providing authority for 
the EPA to take action to correct existing inadequate SIP provisions 
even long after their initial approval, or even if the provisions only 
become inadequate due to subsequent events.\290\ The statutory 
provision is worded in the present tense, giving the EPA authority to 
rectify any deficiency in a SIP that currently exists, regardless of 
the fact that the EPA previously approved that particular provision in 
the SIP and regardless of when that approval occurred.
---------------------------------------------------------------------------

    \290\ See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) 
(upholding the ``NOX SIP Call'' to states requiring 
revisions to previously approved SIPs with respect to ozone 
transport and section 110(a)(2)(D)(i)(I)); ``Action to Ensure 
Authority To Issue Permits Under the Prevention of Significant 
Deterioration Program to Sources of Greenhouse Gas Emissions: 
Finding of Substantial Inadequacy and SIP Call; Final rule,'' 75 FR 
77698 (December 13, 2010) (the EPA issued a SIP call to 13 states 
because the endangerment finding for GHGs meant that these 
previously approved SIPs were substantially inadequate because they 
did not provide for the regulation of GHGs in the PSD permitting 
programs of these states as required by CAA section 110(a)(2)(C) and 
section 110(a)(2)(J)); ``Finding of Substantial Inadequacy of 
Implementation Plan; Call for Utah State Implementation Plan 
Revision,'' 74 FR 21639 (April 18, 2011) (the EPA issued a SIP call 
to rectify SIP provisions dating back to 1980).
---------------------------------------------------------------------------

    It is also important to emphasize that CAA section 110(k)(5) 
expressly directs the EPA to take action if the SIP provision is 
substantially inadequate, not just for purposes of attainment or 
maintenance of the NAAQS but also for purposes of ``any requirement'' 
of the CAA. The EPA interprets this reference to ``any requirement'' of 
the CAA on its face to authorize reevaluation of an existing SIP 
provision for compliance with those statutory and regulatory 
requirements that are germane to the SIP provision at issue. Thus, for 
example, a SIP provision that is intended to be an ``emission 
limitation'' for purposes of a nonattainment plan for purposes of the 
1997 PM2.5 NAAQS must meet various applicable statutory and 
regulatory requirements, including requirements of CAA section 
110(a)(2)(A) such as enforceability, the definition of the term 
``emission limitation'' in CAA section 302(k), the level of emissions 
control

[[Page 33926]]

required to constitute a ``reasonably available control measure'' in 
CAA section 172(c)(1) and the other applicable statutory requirements 
for the implementation of the 1997 PM2.5 NAAQS. Failure to 
meet any of those applicable requirements could constitute a 
substantial inadequacy suitable for a SIP call, depending upon the 
facts and circumstances. By contrast, that same SIP provision should 
not be expected to meet specifications of the CAA that are completely 
irrelevant for its intended purpose, such as the unrelated requirement 
of CAA section 110(a)(2)(G) that the state have general legal authority 
comparable to CAA section 303 for emergencies.
    Use of the term ``any requirement'' in CAA section 110(k)(5) also 
reflects the fact that SIP provisions could be substantially inadequate 
for widely differing reasons. One provision might be substantially 
inadequate because it fails to prohibit emissions that contribute to 
violations of the NAAQS in downwind areas many states away. Another 
provision, or even the same provision, could be substantially 
inadequate because it also infringes on the legal right of members of 
the public who live adjacent to the source to enforce the SIP. Thus, 
the EPA has previously interpreted CAA section 110(k)(5) to authorize a 
SIP call to rectify SIP inadequacies of various kinds, both broad and 
narrow in terms of the scope of the SIP revisions required.\291\ On its 
face, CAA section 110(k)(5) authorizes the EPA to take action with 
respect to SIP provisions that are substantially inadequate to meet any 
CAA requirements, including requirements relevant to the proper 
treatment of excess emissions during SSM events.
---------------------------------------------------------------------------

    \291\ See, e.g., ``Finding of Significant Contribution and 
Rulemaking for Certain States in the Ozone Transport Assessment 
Group Region for Purposes of Reducing Regional Transport of Ozone,'' 
63 FR 57356 (October 27, 1998) (the EPA issued a SIP call to 23 
states requiring them to rectify the failure to address interstate 
transport of pollutants as required by section 110(a)(2)(D); 
``Finding of Substantial Inadequacy of Implementation Plan; Call for 
Utah State Implementation Plan Revision,'' 74 FR 21639 (April 18, 
2011) (the EPA issued a SIP call to one state requiring it to 
rectify several very specific SIP provisions).
---------------------------------------------------------------------------

    An important baseline question is whether a given deficiency 
renders the SIP provision ``substantially inadequate.'' The EPA notes 
that the term ``substantially inadequate'' is not defined in the CAA. 
Moreover, CAA section 110(k)(5) does not specify a particular form of 
analysis or methodology that the EPA must use to evaluate SIP 
provisions for substantial inadequacy. Thus, under Chevron step 2, the 
EPA is authorized to interpret this provision reasonably, consistent 
with the provisions of the CAA. In addition, the EPA is authorized to 
exercise its discretion in applying this provision to determine whether 
a given SIP provision is substantially inadequate. To the extent that 
the term ``substantially inadequate'' is ambiguous, the EPA believes 
that it is reasonable to interpret the term in light of the specific 
purposes for which the SIP provision at issue is required, and thus 
whether the provision meets the fundamental CAA requirements applicable 
to such a provision.
    The EPA does not interpret CAA section 110(k)(5) to require a 
showing that the effect of a SIP provision that is facially 
inconsistent with CAA requirements is causally connected to a 
particular adverse impact. For example, the plain language of CAA 
section 110(k)(5) does not require direct causal evidence that excess 
emissions have occurred during a specific malfunction at a specific 
source and have literally caused a violation of the NAAQS in order to 
conclude that the SIP provision is substantially inadequate.\292\ A SIP 
provision that purports to exempt a source from compliance with 
applicable emission limitations during SSM events, contrary to the 
requirements of the CAA for continuous emission limitations, does not 
become legally permissible merely because there is not definitive 
evidence that any excess emissions have resulted from the exemption and 
have literally caused a specific NAAQS violation.\293\
---------------------------------------------------------------------------

    \292\ See US Magnesium, LLC v. EPA, 690 F.3d 1157 (10th Cir. 
2012) (upholding the EPA's interpretation of section 110(k)(5) to 
authorize a SIP call when the SIP provisions are inconsistent with 
CAA requirements).
    \293\ The EPA notes that the GHG SIP call did not require 
``proof'' that the failure of a state to address GHGs in a given PSD 
permit ``caused'' particularized environmental impacts; it was 
sufficient that the state's SIP failed to meet the current 
fundamental legal requirements for regulation of GHGs in accordance 
with the CAA. See ``Action to Ensure Authority To Issue Permits 
Under the Prevention of Significant Deterioration Program to Sources 
of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and 
SIP Call; Final rule,'' 75 FR 77698 (December 13, 2010).
---------------------------------------------------------------------------

    Similarly, the EPA does not interpret CAA section 110(k)(5) to 
require direct causal evidence that a SIP provision that improperly 
undermines enforceability of the SIP has resulted in a specific failed 
enforcement attempt by any party. A SIP provision that has the 
practical effect of barring enforcement by the EPA or through a citizen 
suit, either because it would bar enforcement if an air agency elects 
to grant a discretionary exemption or to exercise its own enforcement 
discretion, is inconsistent with fundamental requirements of the 
CAA.\294\ Such a provision also does not become legally permissible 
merely because there is not definitive evidence that the state's action 
literally undermined a specific attempted enforcement action by other 
parties. Indeed, the EPA notes that these impediments to effective 
enforcement likely have a chilling effect on potential enforcement in 
general. The possibility for effective enforcement of emission 
limitations in SIPs is itself an important principle of the CAA, as 
embodied in CAA sections 113 and 304.
---------------------------------------------------------------------------

    \294\ See ``Finding of Substantial Inadequacy of Implementation 
Plan; Call for Utah State Implementation Plan Revision,'' 74 FR 
21639 at 21641 (April 18, 2011); see also US Magnesium, LLC v. EPA, 
690 F.3d 1157, 1168 (10th Cir. 2012) (upholding the EPA's 
interpretation of section 110(k)(5) to authorize a SIP call when the 
state's SIP provision worded so that state decisions whether a given 
excess emissions event constituted a violation interfered with 
enforcement by the EPA or citizens for such event).
---------------------------------------------------------------------------

    The EPA's interpretation of CAA section 110(k)(5) is that the 
fundamental integrity of the CAA's SIP process and structure are 
undermined if emission limitations relied upon to meet CAA requirements 
related to protection of public health and the environment can be 
violated without potential recourse. For example, the EPA does not 
believe that it is authorized to issue a SIP call to rectify an 
impermissible automatic exemption provision only after a violation of 
the NAAQS has occurred, or only if that NAAQS violation can be directly 
linked to the excess emissions that resulted from the impermissible 
automatic exemption by a particular source on a particular day. If the 
SIP contains a provision that is inconsistent with fundamental 
requirements of the CAA, that renders the SIP provision substantially 
inadequate.
    The EPA notes that CAA section 110(k)(5) can also be an appropriate 
tool to address ambiguous SIP provisions that could be read by a court 
in a way that would violate the requirements of the CAA. For example, 
if an existing SIP provision concerning the state's exercise of 
enforcement discretion is sufficiently ambiguous that it could be 
construed to preclude enforcement by the EPA or through a citizen suit 
if the state elects to deem a given SSM event not a violation, then 
that could render the provision substantially inadequate by interfering 
with the enforcement structure of the CAA.\295\ If a court could

[[Page 33927]]

construe the ambiguous SIP provision to bar enforcement, then the EPA 
believes that it may be appropriate to take action to eliminate that 
uncertainty by requiring the state to revise the ambiguous SIP 
provision. Under such circumstances, it may be appropriate for the EPA 
to issue a SIP call to assure that the SIP provisions are sufficiently 
clear and consistent with CAA requirements on their face.\296\
---------------------------------------------------------------------------

    \295\ Courts have on occasion interpreted SIP provisions to 
limit the EPA's enforcement authority as a result of ambiguous SIP 
provisions. See, e.g., U.S. v. Ford Motor Co., 736 F.Supp. 1539 
(W.D. Mo. 1990) and U.S. v. General Motors Corp., 702 F.Supp. 133 
(N.D. Texas 1988) (the EPA could not pursue enforcement of SIP 
emission limitations where states had approved alternative emission 
limitations under procedures the EPA had approved in the SIP); 
Florida Power & Light Co. v. Costle, 650 F.2d 579, 588 (5th Cir. 
1981) (the EPA to be accorded no discretion in interpreting state 
law). The EPA does not agree with the holdings of these cases, but 
they illustrate why it is reasonable to eliminate any uncertainty 
about enforcement authority by requiring a state to remove or revise 
a SIP provision that could be read in a way inconsistent with the 
requirements of the CAA.
    \296\ See US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th 
Cir. 2012) (upholding the EPA's use of SIP call authority in order 
to clarify language in the SIP that could be read to violate the 
CAA, even if a court has not yet interpreted the language in that 
way).
---------------------------------------------------------------------------

    In this instance, the Petition raised questions concerning the 
adequacy of existing SIP provisions that pertain to the treatment of 
excess emissions during SSM events. The SIP provisions identified by 
the Petitioner generally fall into four major categories: (i) Automatic 
exemptions; (ii) exemptions as a result of director's discretion; (iii) 
provisions that appear to bar enforcement by the EPA or through a 
citizen suit if the state decides not to enforce through exercise of 
enforcement discretion; and (iv) affirmative defense provisions that 
purport to limit or eliminate a court's jurisdiction to assess 
liability and impose remedies for exceedances of SIP emission 
limitations. The EPA believes that each of these types of SIP 
deficiency potentially justifies a SIP call pursuant to CAA section 
110(k)(5), if the Agency determines that a SIP call is the proper means 
to rectify an existing deficiency in a SIP.
2. Substantial Inadequacy of Automatic Exemptions
    The EPA believes that SIP provisions that provide an automatic 
exemption from otherwise applicable emission limitations are 
substantially inadequate to meet CAA requirements. A typical SIP 
provision that includes an impermissible automatic exemption would 
provide that a source has to meet a specific emission limitation, 
except during startup, shutdown and malfunction, and by definition any 
excess emissions during such events would not be violations and thus 
there could be no enforcement based on those excess emissions. The 
EPA's interpretation of CAA requirements for SIP provisions has been 
reiterated multiple times through the SSM Policy and actions on SIP 
submissions that pertain to this issue. The EPA's longstanding view is 
that SIP provisions that include automatic exemptions for excess 
emissions during SSM events, such that the excess emissions during 
those events are not considered violations of the applicable emission 
limitations, do not meet CAA requirements. Such exemptions undermine 
the attainment and maintenance of the NAAQS, protection of PSD 
increments and improvement of visibility, and SIP provisions that 
include such exemptions fail to meet these and other fundamental 
requirements of the CAA.
    The EPA interprets CAA sections 110(a)(2)(A) and 110(a)(2)(C) to 
require that SIPs contain ``emission limitations'' to meet CAA 
requirements. Pursuant to CAA section 302(k), those emission 
limitations must be ``continuous.'' Automatic exemptions from otherwise 
applicable emission limitations thus render those limits less than 
continuous as required by CAA sections 302(k), 110(a)(2)(A) and 
110(a)(2)(C), thereby inconsistent with a fundamental requirement of 
the CAA and thus substantially inadequate as contemplated in CAA 
section 110(k)(5).
    This inadequacy has far-reaching impacts. For example, air agencies 
rely on emission limitations in SIPs in order to provide for attainment 
and maintenance of the NAAQS. These emission limitations are often used 
by air agencies to meet various requirements including: (i) In the 
estimates of emissions for emissions inventories; (ii) in the 
determination of what level of emissions meets various statutory 
requirements such as ``reasonably available control measures'' in 
nonattainment SIPs or ``best available retrofit technology'' in 
regional haze SIPs; and (iii) in critical modeling exercises such as 
attainment demonstration modeling for nonattainment areas or increment 
use for PSD permitting purposes.
    Because the NAAQS are not directly enforceable against individual 
sources, air agencies rely on the adoption and enforcement of these 
generic and specific emission limitations in SIPs in order to provide 
for attainment and maintenance of the NAAQS, protection of PSD 
increments and improvement of visibility, and to meet other CAA 
requirements. Automatic exemption provisions for excess emissions 
eliminate the possibility of enforcement for what would otherwise be 
clear violations of the relied-upon emission limitations and thus 
eliminate any opportunity to obtain injunctive relief that may be 
needed to protect the NAAQS or meet other CAA requirements. Likewise, 
the elimination of any possibility for penalties for what would 
otherwise be clear violations of the emission limitations, regardless 
of the conduct of the source, eliminates any opportunity for penalties 
to encourage appropriate design, operation and maintenance of sources 
and to encourage efforts by source operators to prevent and to minimize 
excess emissions in order to protect the NAAQS or to meet other CAA 
requirements. Removal of this monetary incentive to comply with the SIP 
reduces a source's incentive to design, operate, and maintain its 
facility to meet emission limitations at all times.
3. Substantial Inadequacy of Director's Discretion Exemptions
    The EPA believes that SIP provisions that allow discretionary 
exemptions from otherwise applicable emission limitations are 
substantially inadequate to meet CAA requirements for the same reasons 
as automatic exemptions, but for additional reasons as well. A typical 
SIP provision that includes an impermissible ``director's discretion'' 
component would purport to authorize air agency personnel to modify 
existing SIP requirements under certain conditions, e.g., to grant a 
variance from an otherwise applicable emission limitation if the source 
could not meet the requirement in certain circumstances.\297\ If such 
provisions are sufficiently specific, provide for sufficient public 
process and are sufficiently bounded, so that it is possible to 
anticipate at the time of the EPA's approval of the SIP provision how 
that provision will actually be applied and the potential adverse 
impacts thereof, then such a provision might meet basic CAA 
requirements. In essence, if it is possible to anticipate and evaluate 
in advance how the exercise of enforcement discretion could impact 
compliance with other CAA requirements, then it may be possible to 
determine in advance that the preauthorized exercise of director's 
discretion will not interfere with other CAA requirements, such as 
providing for attainment and maintenance of the

[[Page 33928]]

NAAQS. Most director's discretion-type provisions cannot meet this 
basic test.
---------------------------------------------------------------------------

    \297\ The EPA notes that problematic ``director's discretion'' 
provisions are not limited only to those that purport to authorize 
alternative emission limitations from those required in a SIP. Other 
problematic director's discretion provisions could include those 
that purport to provide for discretionary changes to other 
substantive requirements of the SIP, such as applicability, 
operating requirements, recordkeeping requirements, monitoring 
requirements, test methods, and alternative compliance methods.
---------------------------------------------------------------------------

    Unless it is possible at the time of the approval of the SIP 
provision to anticipate and analyze the impacts of the potential 
exercise of the director's discretion, such provisions functionally 
could allow de facto revisions of the approved emission limitations 
required by the SIP without complying with the process for SIP 
revisions required by the CAA. Sections 110(a)(1) and (2) of the CAA 
impose procedural requirements on states that seek to amend SIP 
provisions. The elements of CAA section 110(a)(2) and other sections of 
the CAA, depending upon the subject of the SIP provision at issue, 
impose substantive requirements that states must meet in a SIP 
revision. Section 110(i) of the CAA prohibits modification of SIP 
requirements for stationary sources by either the state or the EPA, 
except through specified processes.\298\ Section 110(k) of the CAA 
imposes procedural and substantive requirements on the EPA for action 
upon any SIP revision. Sections 110(l) and 193 of the CAA both impose 
additional procedural and substantive requirements on the state and the 
EPA in the event of a SIP revision. Chief among these many requirements 
for a SIP revision would be the necessary demonstration that the SIP 
revision in question would not interfere with any requirement 
concerning attainment and reasonable further progress or ``any other 
applicable requirement of'' the CAA to meet the requirements of CAA 
section 110(l).
---------------------------------------------------------------------------

    \298\ Section 110(i) of the Act states that ``no order, 
suspension, plan revision or other action modifying any requirement 
of an applicable implementation plan may be taken with respect to 
any stationary source by the State or by the Administrator'' except 
in compliance with the CAA's requirements for promulgation or 
revision of a plan, with limited exceptions. See, e.g., ``Approval 
and Disapproval and Promulgation of Air Quality Implementation 
Plans; Colorado; Revisions to Regulation 1; Notice of proposed 
rulemaking,'' 75 FR 42342 at 42344 (July 21, 2010) (proposing to 
disapprove ``director discretion'' provisions as inconsistent with 
CAA requirements and noting that ``[s]ection 110(i) specifically 
prohibits States, except in certain limited circumstances, from 
taking any action to modify any requirement of a SIP with respect to 
any stationary source, except through a SIP revision''), finalized 
as proposed at 76 FR 4540 (January 26, 2011); ``Corrections to the 
California State Implementation Plan,'' 69 FR 67062 at 67063 
(November 16, 2004) (noting that ``a state-issued variance, though 
binding as a matter of State law, does not prevent EPA from 
enforcing the underlying SIP provisions unless and until EPA 
approves that variance as a SIP revision''); Industrial 
Environmental Association v. Browner, No. 97-71117 at n.2 (9th Cir. 
May 26, 2000) (noting that the EPA has consistently treated 
individual variances granted under state variance provisions as 
``modifications of the SIP requiring independent EPA approval'').
---------------------------------------------------------------------------

    Congress presumably imposed these many explicit requirements in 
order to assure that there is adequate public process at both the air 
agency and federal level for any SIP revision and to assure that any 
SIP revision meets the applicable substantive requirements of the CAA. 
Although no provision of the CAA explicitly addresses whether a 
``director's discretion'' provision by that term is acceptable, the EPA 
interprets the statute to prohibit such provisions unless they would be 
consistent with the statutory and regulatory requirements that apply to 
SIP revisions.\299\ A SIP provision that purports to give broad and 
unbounded director's discretion to alter the existing legal 
requirements of the SIP with respect to meeting emission limitations 
would be tantamount to allowing a revision of the SIP without meeting 
the applicable procedural and substantive requirements for such a SIP 
revision. The EPA's approval of a SIP provision that purported to allow 
unilateral revisions of the emission limitations in the SIP by the 
state, without complying with the statutory requirements for a SIP 
revision, would itself be contrary to fundamental procedural and 
substantive requirements of the CAA.
---------------------------------------------------------------------------

    \299\ See, e.g., EPA's implementing regulations at 40 CFR 
51.104(d) (``In order for a variance to be considered for approval 
as a revision to the [SIP], the State must submit it in accordance 
with the requirements of this section'') and 51.105 (``Revisions of 
a plan, or any portion thereof, will not be considered part of an 
applicable plan until such revisions have been approved by the 
Administrator in accordance with this part.'').
---------------------------------------------------------------------------

    For this reason, the EPA has long discouraged the creation of new 
SIP provisions containing an impermissible director's discretion 
feature and has also taken actions to remove existing SIP provisions 
that it had previously approved in error.\300\ In recent years, the EPA 
has also recommended that if an air agency elects to have SIP 
provisions that contain a director's discretion feature, then to be 
consistent with CAA requirements the provisions must be structured so 
that any resulting variances or other deviations from the emission 
limitation or other SIP requirements have no federal law validity, 
unless and until the EPA specifically approves that exercise of the 
director's discretion as a SIP revision. Barring such a later 
ratification by the EPA through a SIP revision, the exercise of 
director's discretion is only valid for state (or tribal) law purposes 
and would have no bearing in the event of an action to enforce the 
provision of the SIP as it was originally approved by the EPA.
---------------------------------------------------------------------------

    \300\ See, e.g., ``Approval and Disapproval and Promulgation of 
Air Quality Implementation Plans; Colorado; Revisions to Regulation 
1,'' 76 FR 4540 (January 26, 2011) (partial disapproval of SIP 
submission based on inclusion of impermissible director's discretion 
provisions); ``Correction of Implementation Plans; American Samoa, 
Arizona, California, Hawaii, and Nevada State Implementation Plans; 
Notice of proposed rulemaking,'' 61 FR 38664 (July 25, 1996) 
(proposed SIP correction to remove, pursuant to CAA section 
110(k)(6), several variance provisions from American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs), finalized at 62 FR 34641 (June 
27, 1997); ``Approval and Promulgation of Implementation Plans; 
Corrections to the Arizona and Nevada State Implementation Plans; 
Direct final rule,'' 74 FR 57051 (November 3, 2009) (rulemaking to 
remove, pursuant to CAA section 110(k)(6), variance provisions from 
Arizona and Nevada SIPs).
---------------------------------------------------------------------------

    The EPA's evaluation of the specific SIP provisions of this type 
identified in the Petition indicates that none of them provides 
sufficient process or sufficient bounds on the exercise of director's 
discretion to be permissible. Most on their face would allow 
potentially limitless exemptions from SIP requirements with potentially 
dramatic adverse impacts inconsistent with the objectives of the CAA. 
More importantly, however, each of the identified SIP provisions goes 
far beyond the limits of what might theoretically be a permissible 
director's discretion provision, by authorizing state personnel to 
create case-by-case exemptions from the applicable emission limitations 
or other requirements of the SIP for excess emissions during SSM 
events. Given that the EPA interprets the CAA not to allow exemptions 
from SIP emission limitations for excess emissions during SSM events in 
the first instance, it follows that providing such exemptions through 
the ad hoc mechanism of a director's discretion provision is also not 
permissible and compounds the problem.
    As with automatic exemptions for excess emissions during SSM 
events, a provision that allows discretionary exemptions would not meet 
the statutory requirements of CAA sections 110(a)(2)(A) and 
110(a)(2)(C) that require SIPs to contain ``emission limitations'' to 
meet CAA requirements. Pursuant to CAA section 302(k), those emission 
limitations must be ``continuous.'' Discretionary exemptions from 
otherwise applicable emission limitations render those limits less than 
continuous, as is required by CAA sections 110(a)(2)(A) and 
110(a)(2)(C), and thereby inconsistent with a fundamental requirement 
of the CAA and thus substantially inadequate as contemplated in section 
CAA 110(k)(5). Such exemptions undermine the objectives of the CAA such 
as protection of the NAAQS and PSD increments, and they fail to meet 
other fundamental requirements of the CAA.

[[Page 33929]]

    In addition, discretionary exemptions undermine effective 
enforcement of the SIP by the EPA or through a citizen suit, because 
often there may have been little or no public process concerning the 
exercise of director's discretion to grant the exemptions, or easily 
accessible documentation of those exemptions, and thus even 
ascertaining the possible existence of such ad hoc exemptions will 
further burden parties who seek to evaluate whether a given source is 
in compliance or to pursue enforcement if it appears that the source is 
not. Where there is little or no public process concerning such ad hoc 
exemptions, or there is inadequate access to relevant documentation of 
those exemptions, enforcement by the EPA or through a citizen suit may 
be severely compromised. As explained in the 1999 SSM Guidance, the EPA 
does not interpret the CAA to allow SIP provisions that would allow the 
exercise of director's discretion concerning violations to bar 
enforcement by the EPA or through a citizen suit. The exercise of 
director's discretion to exempt conduct that would otherwise constitute 
a violation of the SIP would interfere with effective enforcement of 
the SIP. Such provisions are inconsistent with and undermine the 
enforcement structure of the CAA provided in CAA sections 113 and 304, 
which provide independent authority to the EPA and citizens to enforce 
SIP provisions, including emission limitations. Thus, SIP provisions 
that allow discretionary exemptions from applicable SIP emission 
limitations through the exercise of director's discretion are 
substantially inadequate to comply with CAA requirements as 
contemplated in CAA section 110(k)(5).
4. Substantial Inadequacy of Improper Enforcement Discretion Provisions
    The EPA believes that SIP provisions that pertain to enforcement 
discretion but could be construed to bar enforcement by the EPA or 
through a citizen suit if the air agency declines to enforce are 
substantially inadequate to meet CAA requirements. A typical SIP 
provision that includes an impermissible enforcement discretion 
provision specifies certain parameters for when air agency personnel 
should pursue enforcement action, but is worded in such a way that the 
air director's decision defines what constitutes a ``violation'' of the 
emission limitation for purposes of the SIP, i.e., by defining what 
constitutes a violation, the air agency's own enforcement discretion 
decisions are imposed on the EPA or citizens.\301\
---------------------------------------------------------------------------

    \301\ See, e.g., ``Finding of Substantial Inadequacy of 
Implementation Plan; Call for Utah State Implementation Plan 
Revision,'' 75 FR 70888 at 70892 (November 19, 2010). The SIP 
provision at issue provided that information concerning a 
malfunction ``shall be used by the executive secretary in 
determining whether a violation has occurred and/or the need of 
further enforcement action.'' This SIP language appeared to give the 
state official exclusive authority to determine whether excess 
emissions constitute a violation.
---------------------------------------------------------------------------

    The EPA's longstanding view is that SIP provisions cannot enable an 
air agency's decision concerning whether or not to pursue enforcement 
to bar the ability of the EPA or the public to enforce applicable 
requirements.\302\ Such enforcement discretion provisions in a SIP 
would be inconsistent with the enforcement structure provided in the 
CAA. Specifically, the statute provides explicit independent 
enforcement authority to the EPA under CAA section 113 and to citizens 
under CAA section 304. Thus, the CAA contemplates that the EPA and 
citizens have authority to pursue enforcement for a violation even if 
the air agency elects not to do so. The EPA and citizens, and any court 
in which they seek to pursue an enforcement claim for violation of SIP 
requirements, must retain the authority to evaluate independently 
whether a source's violation of an emission limitation warrants 
enforcement action. Potential for enforcement by the EPA or through a 
citizen suit provides an important safeguard in the event that the air 
agency lacks resources or ability to enforce violations and provides 
additional deterrence. Accordingly, a SIP provision that operates at 
the air agency's election to eliminate the authority of the EPA or the 
public to pursue enforcement actions would undermine the enforcement 
structure of the CAA and would thus be substantially inadequate to meet 
fundamental requirements in CAA sections 113 and 304.
---------------------------------------------------------------------------

    \302\ See 1999 SSM Guidance at 3.
---------------------------------------------------------------------------

5. Substantial Inadequacy of Affirmative Defense Provisions
    The EPA believes that SIP provisions that provide an affirmative 
defense for excess emissions during SSM events are substantially 
inadequate to meet CAA requirements. A typical SIP provision that 
includes an impermissible affirmative defense operates to limit or 
eliminate the jurisdiction of federal courts to assess liability or to 
impose remedies in an enforcement proceeding for exceedances of SIP 
emission limitations. Some affirmative defense provisions apply 
broadly, whereas others are components of specific emission 
limitations. Some provisions use the explicit term ``affirmative 
defense,'' whereas others are structured as such provisions but do not 
use this specific terminology. All of these provisions, however, share 
the same legal deficiency in that they purport to alter the statutory 
jurisdiction of federal courts under section 113 and section 304 to 
determine liability and to impose remedies for violations of CAA 
requirements, including SIP emission limitations. Accordingly, an 
affirmative defense provision that operates to limit or to eliminate 
the jurisdiction of the federal courts would undermine the enforcement 
structure of the CAA and would thus be substantially inadequate to meet 
fundamental requirements in CAA sections 113 and 304. By undermining 
enforcement, such provisions also are inconsistent with fundamental CAA 
requirements such as attainment and maintenance of the NAAQS, 
protection of PSD increments and improvement of visibility.

B. SIP Call Process Under Section 110(k)(5)

    Section 110(k)(5) of the CAA provides the EPA with authority to 
determine whether a SIP is substantially inadequate to attain or 
maintain the NAAQS or otherwise comply with any requirement of the CAA. 
Where the EPA makes such a determination, the EPA then has a duty to 
issue a SIP call.
    In addition to providing general authority for a SIP call, CAA 
section 110(k)(5) sets forth the process and timing for such an action. 
First, the statute requires the EPA to notify the state of the final 
finding of substantial inadequacy. The EPA typically provides notice to 
states by a letter from the Assistant Administrator for the Office of 
Air and Radiation to the appropriate state officials in addition to 
publication of the final action in the Federal Register.
    Second, the statute requires the EPA to establish ``reasonable 
deadlines (not to exceed 18 months after the date of such notice)'' for 
states to submit corrective SIP submissions to eliminate the inadequacy 
in response to the SIP call. The EPA proposes and takes comment on the 
schedule for the submission of corrective SIP revisions in order to 
ascertain the appropriate timeframe, depending on the nature of the SIP 
inadequacy.
    Third, the statute requires that any finding of substantial 
inadequacy and notice to the state be made public. By undertaking a 
notice-and-comment rulemaking, the EPA assures that the air agencies, 
affected sources and members of the public all are adequately

[[Page 33930]]

informed and afforded the opportunity to participate in the process. 
Through the February 2013 proposal, the SNPR and this final notice, the 
EPA is providing a full evaluation of the issues raised by the Petition 
and has used this process as a means of giving clear and up-to-date 
guidance concerning SIP provisions relevant to the treatment of excess 
emissions during SSM events that is consistent with CAA requirements.
    If the state fails to submit the corrective SIP revision by the 
deadline established in this final notice, CAA section 110(c) 
authorizes the EPA to ``find[ ] that [the] State has failed to make a 
required submission.'' \303\ Once the EPA makes such a finding of 
failure to submit, CAA section 110(c)(1) requires the EPA to 
``promulgate a Federal implementation plan at any time within 2 years 
after the [finding] . . . unless the State corrects the deficiency, and 
[the EPA] approves the plan or plan revision, before [the EPA] 
promulgates such [FIP].'' Thus, if the EPA finds that the air agency 
failed to submit a complete SIP revision that responds to this SIP 
call, or if the EPA disapproves such SIP revision, then the EPA will 
have an obligation under CAA section 110(c)(1) to promulgate a FIP no 
later than 2 years from the date of the finding or the disapproval, if 
the deficiency has not been corrected before that time.\304\
---------------------------------------------------------------------------

    \303\ CAA section 110(c)(1)(A).
    \304\ The 2-year deadline does not necessarily apply to FIPs 
following disapproval of a tribal implementation plan.
---------------------------------------------------------------------------

    The finding of failure to submit a revision in response to a SIP 
call or the EPA's disapproval of that corrective SIP revision can also 
trigger sanctions under CAA section 179. If a state fails to submit a 
complete SIP revision that responds to a SIP call, CAA section 179(a) 
provides for the EPA to issue a finding of state failure. Such a 
finding starts mandatory 18-month and 24-month sanctions clocks. The 
two sanctions that apply under CAA section 179(b) are the 2-to-1 
emission offset requirement for all new and modified major sources 
subject to the nonattainment NSR program and restrictions on highway 
funding. However, section 179 leaves it to the EPA to decide the order 
in which these sanctions apply. The EPA issued an order of sanctions 
rule in 1994 but did not specify the order of sanctions where a state 
fails to submit or submits a deficient SIP revision in response to a 
SIP call.\305\ In the February 2013 proposal, as the EPA has done in 
other SIP calls, the EPA proposed that the 2-to-1 emission offset 
requirement will apply for all new sources subject to the nonattainment 
NSR program beginning 18 months following such finding or disapproval 
unless the state corrects the deficiency before that date. The EPA 
proposed that the highway funding restrictions sanction will also apply 
beginning 24 months following such finding or disapproval unless the 
state corrects the deficiency before that date. Finally, the EPA 
proposed that the provisions in 40 CFR 52.31 regarding staying the 
sanctions clock and deferring the imposition of sanctions would also 
apply. In this action, the EPA is finalizing the order of sanctions as 
proposed in the February 2013 proposal and finalizing its decision 
concerning the application of 40 CFR 52.31.
---------------------------------------------------------------------------

    \305\ See ``Selection of Sequence of Mandatory Sanctions for 
Findings Made Pursuant to Section 179 of the Clean Air Act,'' 59 FR 
39832 (August 4, 1994), codified at 40 CFR 52.31.
---------------------------------------------------------------------------

    Mandatory sanctions under CAA section 179 generally apply only in 
nonattainment areas. By its definition, the emission offset sanction 
applies only in areas required to have a part D NSR program, i.e., 
areas designated nonattainment. Section 179(b)(1) expressly limits the 
highway funding restriction to nonattainment areas. Additionally, the 
EPA interprets the section 179 sanctions to apply only in the area or 
areas of the state that are subject to or required to have in place the 
deficient SIP and for the pollutant or pollutants that the specific SIP 
element addresses. For example, if the deficient provision applies 
statewide and applies for all NAAQS pollutants, then the mandatory 
sanctions would apply in all areas designated nonattainment for any 
NAAQS within the state. In this case, the EPA will evaluate the 
geographic scope of potential sanctions at the time it makes a 
determination that the air agency has failed to make a complete SIP 
submission in response to this SIP call, or at the time it disapproves 
such a SIP submission. The appropriate geographic scope for sanctions 
may vary depending upon the SIP provisions at issue.

C. SIP Call Timing Under Section 110(k)(5)

    When the EPA finalizes a finding of substantial inadequacy and a 
SIP call for any state, CAA section 110(k)(5) requires the EPA to 
establish a SIP submission deadline by which the state must make a SIP 
submission to rectify the identified deficiency. Pursuant to CAA 
section 110(k)(5), the EPA has authority to set a SIP submission 
deadline that is up to 18 months from the date of the final finding of 
inadequacy.
    The EPA proposed to establish a date 18 months from the date of 
promulgation of the final finding for the state to respond to the SIP 
call. After further evaluation of this issue and consideration of 
comments on the proposed SIP call, the EPA has decided to finalize the 
proposed schedule. Thus, the SIP submission deadline for each of the 
states subject to this SIP call will be November 22, 2016. Thereafter, 
the EPA will review the adequacy of that new SIP submission in 
accordance with the CAA requirements of sections 110(a), 110(k), 110(l) 
and 193, including the EPA's interpretation of the CAA reflected in the 
SSM Policy as clarified and updated through this rulemaking.
    The EPA is providing the maximum time permissible under the CAA for 
a state to respond to a SIP call. The EPA believes that it is 
appropriate to provide states with the full 18 months authorized under 
CAA section 110(k)(5) in order to allow states sufficient time to make 
SIP revisions following their own SIP development process. During this 
time, the EPA recognizes, an affected state will need to revise its 
state regulations, provide for public input, process the SIP revision 
through the state's own procedures and submit the SIP revision to the 
EPA. Such a schedule will allow for the necessary SIP development 
process to correct the deficiencies, yet still achieve the necessary 
SIP improvements as expeditiously as practicable. There may be 
exceptions, particularly in states that have adopted especially time-
consuming procedures for adoption and submission of SIP revisions. The 
EPA acknowledges that the longstanding existence of many of the 
provisions at issue, such as automatic exemptions for SSM events, may 
have resulted in undue reliance on them as a compliance mechanism by 
some sources. As a result, development of appropriate SIP revisions may 
entail reexamination of the applicable emission limitations themselves, 
and this process may require the maximum time allowed by the CAA. For 
example, if circumstances do not allow the state to develop alternative 
emission limitations within that time, the state may find it necessary 
to remove the automatic exemptions in an initial responsive SIP 
revision and establish alternative emission limitations in a later SIP 
revision. Nevertheless, the EPA encourages the affected states to make 
the necessary revisions in as timely a fashion as possible and 
encourages the states to work with the respective EPA Regional

[[Page 33931]]

Office as they develop the SIP revisions. The EPA intends to review and 
act upon the SIP submissions as promptly as resources will allow, in 
order to correct these deficiencies in as timely a manner as possible. 
Recent experience with several states that elected to correct the 
deficiencies identified in the February 2013 proposal in advance of 
this final action suggests that these SIP revisions can be addressed 
efficiently through cooperation between the air agencies and the EPA.
    The EPA notes that the SIP call for affected states finalized in 
this action is narrow and applies only to the specific SIP provisions 
determined to be inconsistent with the requirements of the CAA. To the 
extent that a state is concerned that elimination of a particular 
aspect of an existing emission limitation, such as an impermissible 
exemption, will render that emission limitation more stringent than the 
state originally intended and more stringent than needed to meet the 
CAA requirements it was intended to address, the EPA anticipates that 
the state will revise the emission limitation accordingly, but without 
the impermissible exemption or other feature that necessitated the SIP 
call. With adequate justification, this SIP revision might, e.g., 
replace a numerical emission limitation with an alternative control 
method (design, equipment, work practice or operational standard) as a 
component of the emission limitation applicable during startup and/or 
shutdown periods.
    The EPA emphasizes that its authority under CAA section 110(k)(5) 
does not extend to requiring a state to adopt a particular control 
measure in its SIP revision in response to the SIP call. Under 
principles of cooperative federalism, the CAA vests air agencies with 
substantial discretion in how to develop SIP provisions, so long as the 
provisions meet the legal requirements and objectives of the CAA.\306\ 
Thus, the inclusion of a SIP call to a state in this action should not 
be misconstrued as a directive to the state to adopt a particular 
control measure. The EPA is merely requiring that affected states make 
SIP revisions to remove or revise existing SIP provisions that fail to 
comply with fundamental requirements of the CAA. The states retain 
discretion to remove or revise those provisions as they determine best, 
so long as they bring their SIPs into compliance with the requirements 
of the CAA.\307\ Through this rulemaking action, the EPA is 
reiterating, clarifying and updating its interpretations of the CAA 
with respect to SIP provisions that apply to emissions from sources 
during SSM events in order to provide states with comprehensive 
guidance concerning such provisions.
---------------------------------------------------------------------------

    \306\ See Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) (SIP 
call remanded and vacated because, inter alia, the EPA had issued a 
SIP call that required states to adopt a particular control measure 
for mobile sources).
    \307\ Notwithstanding the latitude states have in developing SIP 
provisions, the EPA is required to assure that states meet the basic 
legal criteria for SIPs. See Michigan v. EPA, 213 F.3d 663, 686 
(D.C. Cir. 2000) (upholding NOx SIP call because, inter 
alia, the EPA was requiring states to meet basic legal requirement 
that SIPs comply with section 110(a)(2)(D), not dictating the 
adoption of a particular control measure).
---------------------------------------------------------------------------

    Finally, the EPA notes that under section 553 of the Administrative 
Procedure Act, 5 U.S.C. 553(d), an agency rule should not be 
``effective'' less than 30 days after its publication, unless certain 
exceptions apply including an exception for ``good cause.'' In this 
action, the EPA is simultaneously taking final action on the Petition, 
issuing its revised SSM Policy guidance to states for SIP provisions 
applicable to emissions during SSM events and issuing a SIP call to 36 
states for specific existing SIP provisions that it has determined to 
be substantially inadequate to meet CAA requirements. Section 110(k)(5) 
provides that the EPA must notify states affected by a SIP call and 
must establish a deadline for SIP submissions by affected states in 
response to a SIP call not to exceed 18 months after the date of such 
notification. The EPA is notifying affected states of this final SIP 
call action on May 22, 2015. Thus, regardless of the effective date of 
this action, the deadline for submission of SIP revisions to address 
the specific SIP provisions that the EPA has identified as 
substantially inadequate will be November 22, 2016. In addition, the 
EPA concludes that there is good cause for this final action to be 
effective on May 22, 2015, the day upon which the EPA provided notice 
to the states, because any delayed effective date would be unnecessary 
given that CAA section 110(k)(5) explicitly provides that the deadline 
for submission of the required SIP revisions runs from the date of 
notification to the affected states, not from some other date, and 
shall not exceed 18 months.

D. Response to Comments Concerning SIP Call Authority, Process and 
Timing

    The EPA received a wide range of comments on the February 2013 
proposal and the SNPR questioning the scope of the Agency's authority 
to issue this SIP call action under section 110(k)(5), the process 
followed by EPA for this SIP call action, or the timing that the EPA 
provided for response to this SIP call action. Although there were 
numerous comments on these general topics, the majority of the comments 
raised the same questions and made similar arguments (e.g., that the 
EPA has an obligation under section 110(k)(5) to ``prove'' not only 
that an exemption for SSM events in a SIP emission limitation is 
contrary to the explicit legal requirements of the CAA but also that 
this illegal exemption ``caused'' a specific violation of the NAAQS at 
a particular monitor on a particular day). For clarity and ease of 
discussion, the EPA is responding to these overarching comments, 
grouped by topic, in this section of this document.
    1. Comments that section 110(k)(5) requires the EPA to ``prove 
causation'' to have authority to issue a SIP call.
    Comment: Numerous state and industry commenters argued that the EPA 
has no authority to issue a SIP call with respect to a given SIP 
provision unless and until the Agency first proves definitively that 
the provision has caused a specific harm, such as a specific violation 
of the NAAQS in a specific area. These commenters generally focused 
upon the ``attainment and maintenance'' clause of section 110(k)(5) and 
did not address the ``comply with any requirement of'' the CAA clause.
    For example, many industry commenters opposed the EPA's 
interpretation of section 110(k)(5) on the grounds that the Agency had 
failed to provide a specific technical analysis ``proving'' how the SIP 
provisions failed to provide for attainment or maintenance of the 
NAAQS. For areas attaining the NAAQS, commenters asserted that there 
should be a presumption that existing SIP provisions are adequate if 
they have resulted in attainment of the NAAQS. For areas violating the 
NAAQS, commenters claimed that the EPA is required to conduct a 
technical analysis to determine if there is a ``nexus between the 
provisions that are the subject of its SSM SIP Call Proposal and the 
specific pollutants for which attainment has not been achieved.'' Other 
industry commenters argued that in order to have authority to issue a 
SIP call, the EPA must prove through a technical analysis that a given 
SIP provision ``is'' substantially inadequate, not that it ``may be.'' 
These commenters claimed that the EPA has not shown how any of the SIP 
provisions at issue in this action ``threatens the NAAQS, fails to 
sufficiently mitigate interstate transport, or comply with any other

[[Page 33932]]

CAA requirement.'' Many industry commenters questioned whether exempt 
emissions during SSM events pose any attainment-related concerns, 
making assertions such as: ``[i]nfrequent malfunction, startup and 
shutdown events at a limited number of stationary sources are likely to 
have no effect on attainment.''
    Many state commenters made similar arguments, based on the specific 
attainment or nonattainment status of areas in their respective states. 
For example, one state commenter claimed that the EPA failed to make 
required technical findings that the specific provisions the Agency 
identified as legally deficient ``are so substantially inadequate that 
the State cannot attain or maintain the NAAQS or otherwise comply with 
the CAA.'' The commenter claimed that the EPA should have evaluated all 
of the state's emission limitations, emission inventories and 
attainment and maintenance demonstrations for the NAAQS, rather than 
focusing on these individual SIP provisions. In order to demonstrate 
substantial inadequacy under section 110(k)(5), the state claimed, the 
EPA ``must point to facts'' that show ``the State cannot attain or 
maintain the NAAQS or comply with the CAA'' if the provisions remain in 
the SIP. Other states made comparable arguments with respect to the SIP 
provisions at issue in their SIPs and claimed that the EPA is required 
to establish how the provisions caused or contributed to a specific 
violation of a NAAQS in those states.
    By contrast, many environmental group commenters and individual 
commenters took the opposite position concerning what is necessary to 
support a finding of substantial inadequacy under section 110(k)(5). 
These commenters argued that that the EPA may issue a SIP call not only 
where it determines that a SIP is substantially inadequate to attain or 
maintain a NAAQS with a technical analysis but also where the Agency 
determines that the SIP is substantially inadequate ``to comply with 
any requirement of the Act.'' The commenters noted that the EPA 
identified specific statutory provisions of the CAA with which the SIP 
provisions at issue in this action do not comply. For example, these 
commenters agreed with the EPA's view that SIP provisions with 
automatic or discretionary exemptions for emissions during SSM events 
do not meet the fundamental requirements that SIP emission limitations 
must apply to limit emissions from sources on a continuous basis, in 
accordance with sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). In 
addition to arguing that failure to meet legal requirements of the CAA 
is a sufficient basis for a SIP call, some commenters provided 
additional support to illustrate how SIP provisions with deficiencies 
such as automatic or discretionary exemptions for emissions during SSM 
events result in large amounts of excess emissions that would otherwise 
be violations of the applicable emission limitations.
    Response: The EPA disagrees with the argument that it has no 
authority to issue a SIP call under section 110(k)(5) unless the Agency 
provides a factual or technical analysis to demonstrate that the SIP 
provision at issue caused a specific environmental harm or undermined a 
specific enforcement case. As explained in the February 2013 proposal, 
in the SNPR and in this final action, the EPA interprets its authority 
under section 110(k)(5) to authorize a SIP call for not only provisions 
that are substantially inadequate for purposes of attainment or 
maintenance of the NAAQS but also those provisions that are 
substantially inadequate for purposes of ``any requirement'' of the 
CAA.\308\ To be clear, the EPA can also issue a SIP call whenever it 
determines that a SIP as a whole, or a specific SIP provision, is 
deficient because the SIP did not prevent specific violations of a 
NAAQS, at a specific monitor, on a specific date. However, that is not 
the extent of the EPA's authority under section 110(k)(5).
---------------------------------------------------------------------------

    \308\ See February 2013 proposal, 78 FR 12459 at 12483-89 
(February 22, 2013); SNPR, 79 FR 55919 at 55935.
---------------------------------------------------------------------------

    On its face, section 110(k)(5) does not impose any explicit 
requirements with respect to what specific form of factual or 
analytical basis is necessary for issuance of a SIP call. Because the 
statute does not prescribe the basis on which the EPA is to make a 
finding of substantial inadequacy, the Agency interprets section 
110(k)(5) to provide discretion concerning what is necessary to support 
such a finding. The Agency believes that the nature of the factual or 
analytical basis necessary to make a finding is dependent upon the 
specific nature of the substantial inadequacy in a given SIP provision.
    For example, when the EPA issued the NOX SIP Call to 
multiple states because their SIPs failed to address interstate 
transport adequately in accordance with section 110(a)(2)(D)(i)(I), the 
Agency did base that SIP call on a detailed factual analysis including 
ambient air impacts.\309\ In that situation, the specific requirement 
of the CAA at issue was the statutory obligation of each state to have 
a SIP that contains adequate provisions to prohibit emissions from 
sources ``in amounts'' that ``contribute significantly to nonattainment 
in, or interfere with maintenance by, any other State'' with respect to 
the NAAQS. Because of the phrase ``in amounts,'' the EPA considered it 
appropriate to evaluate whether each state's SIP was substantially 
inadequate to comply with section 110(a)(2)(D)(i)(I) through a detailed 
analysis of the emissions from the state and their impacts on other 
states. Moreover, given the use of ambiguous terms in section 
110(a)(2)(D)(i)(I) such as ``contribute significantly,'' the EPA 
concluded that it was appropriate to conduct a detailed analysis to 
quantify the amount of emissions that each of the affected states 
needed to eliminate in order to comply with section 110(a)(2)(D)(i)(I) 
for the specific NAAQS in question. However, the EPA's decision to 
determine these facts and to conduct these analyses as a basis for that 
particular SIP call action was due to the nature of the SIP deficiency 
at issue and the wording of section 110(a)(2)(D)(i)(I). The EPA has 
similarly issued other SIP calls for which the Agency determined that a 
specific factual or technical analysis was appropriate to support the 
finding of substantial inadequacy.\310\
---------------------------------------------------------------------------

    \309\ See ``Finding of Significant Contribution and Rulemaking 
for Certain States in the Ozone Transport Assessment Group Region 
for Purposes of Reducing Regional Transport of Ozone,'' 63 FR 57356 
(October 27, 1998).
    \310\ See, e.g., ``Finding of Substantial Inadequacy of 
Implementation Plan; Call for Iowa State Implementation Plan 
Revision,'' 76 FR 41424 (July 14, 2011) (SIP call to Iowa due to 
PM2.5 NAAQS violations in Muscatine area); ``Approval and 
Promulgation of State Implementation Plans; Call for Sulfur Dioxide 
SIP Revisions for Billings/Laurel, MT [Montana],'' 58 FR 41430 
(August 4, 1993) (SIP call to Montana due to modeled violations of 
the SO2 NAAQS).
---------------------------------------------------------------------------

    Not all situations, however, require the same type of detailed 
factual analysis to support the finding of substantial inadequacy. For 
example, when the EPA issued the PSD GHG SIP call to 13 states for 
failure to have a PSD permitting program that properly addresses GHG 
emissions, the Agency did not need to base that SIP call action on a 
detailed factual analysis of ambient air impacts.\311\ In that 
situation, the statutory requirement of the CAA in question was the 
obligation of each state SIP under section 110(a)(2)(C) to

[[Page 33933]]

include a PSD permitting program that addresses all federally regulated 
air pollutants, including GHGs. In that action, the EPA made a finding 
that the SIPs of 13 states were substantially inadequate to ``comply 
with any requirement'' of the CAA because the PSD permitting programs 
in their EPA-approved SIPs did not apply to GHG emissions from new and 
modified sources. Accordingly, the EPA issued a SIP call to the 13 
states because their SIPs failed to comply with specific legal 
requirements of the CAA. This failure to meet an explicit CAA legal 
requirement to address GHG emissions in permits for sources as required 
by statute did not require the EPA to provide a technical analysis of 
the specific environmental impacts that this substantial inadequacy 
would cause. For this type of SIP deficiency, it was sufficient for the 
EPA to make a factual finding that the affected states had SIPs that 
failed to meet this fundamental legal requirement.\312\ The EPA has 
issued other SIP calls for which the Agency made a finding that a 
state's failure to meet specific legal requirement of the CAA for SIPs 
was a substantial inadequacy without the need to provide a technical 
air quality analysis relating to NAAQS violations.\313\
---------------------------------------------------------------------------

    \311\ See ``Action to Ensure Authority to Issue Permits Under 
the Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions; Finding of Substantial Inadequacy and SIP 
Call,'' 75 FR 77698 (December 13, 2010). The EPA notes that a number 
of petitioners challenged this SIP call on various grounds, but the 
court ultimately determined that they did not have standing. Texas 
v. EPA, 726 F.3d 180 (D.C. Cir. 2013).
    \312\ Id., 75 FR 77698 at 77705-07.
    \313\ See, e.g., ``Finding of Substantial Inadequacy of 
Implementation Plan; Call for California State Implementation Plan 
Revision,'' 68 FR 37746 (June 25, 2003) (SIP call to California for 
failure to meet legal requirements of section 110(a)(2)(C), section 
110(a)(2)(I), and section 110(a)(2)(E) because of exemptions for 
agricultural sources from NNSR and PSD permitting requirements); 
``Credible Evidence Revisions,'' 62 FR 8314 at 8327 (February 24, 
1997) (discussing SIP calls requiring states to revise their SIPs to 
meet CAA requirements with respect to the use of any credible 
evidence in enforcement actions for SIP violations).
---------------------------------------------------------------------------

    The EPA believes that the most relevant precedent for what is 
necessary to support a finding of substantial inadequacy in this action 
is the SIP call that the Agency previously issued to the state of Utah 
for deficient SIP provisions related to the treatment of excess 
emissions during SSM events.\314\ In that SIP call action, the EPA made 
a finding that two specific provisions in the state's SIP were 
substantially inadequate because they were inconsistent with legal 
requirements of the CAA. For one of the provisions that included an 
exemption for emissions during ``upsets'' (i.e., malfunctions), the EPA 
explained:
---------------------------------------------------------------------------

    \314\ See ``Finding of Substantial Inadequacy of Implementation 
Plan; Call for Utah State Implementation Plan Revision; Proposed 
rule,'' 76 FR 21639 (April 18, 2011).

Contrary to CAA section 302(k)'s definition of emission limitation, 
the exemption [in the provision] renders emission limitations in the 
Utah SIP less than continuous and, contrary to the requirements of 
CAA sections 110(a)(2)(A) and (C), undermines the ability to ensure 
compliance with SIP emissions limitations relied on to achieve the 
NAAQS and other relevant CAA requirements at all times. Therefore, 
the [provision] renders the Utah SIP substantially inadequate to 
attain or maintain the NAAQS or to comply with other CAA 
requirements such as CAA sections 110(a)(2)(A) and (C) and 302(k), 
CAA provisions related to prevention of significant deterioration 
(PSD) and nonattainment NSR permits (sections 165 and 173), and 
provisions related to protection of visibility (section 169A).\315\
---------------------------------------------------------------------------

    \315\ Id., 76 FR 21639 at 21641. The EPA also found the first 
provision substantially inadequate because it operated to create an 
additional exemption for emissions during malfunctions that modified 
the existing emission limitations in some federal NSPS and NESHAP 
that the state had incorporated by reference into its SIP. The EPA's 
1999 SSM Guidance had indicated that state SIP provisions could not 
validly alter NSPS or NESHAP.

    For a second provision, the EPA made a finding of substantial 
inadequacy because the provision interfered with the enforcement 
---------------------------------------------------------------------------
structure of the CAA. The EPA explained:

This provision appears to give the executive secretary exclusive 
authority to determine whether excess emissions constitute a 
violation and thus to preclude independent enforcement action by EPA 
and citizens when the executive secretary makes a non-violation 
determination. This is inconsistent with the enforcement structure 
under the CAA, which provides enforcement authority not only to the 
States, but also to EPA and citizens. . . . Because it undermines 
the envisioned enforcement structure, it also undermines the ability 
of the State to attain and maintain the NAAQS and to comply with 
other CAA requirements related to PSD, visibility, NSPS, and 
NESHAPS.\316\
---------------------------------------------------------------------------

    \316\ Id.

    In the Utah SIP call rulemaking, the EPA received similar adverse 
comments arguing that the Agency has no authority under section 
110(k)(5) to issue a SIP call without a factual analysis that proves 
that the deficient SIP provisions caused a specific environmental harm, 
such as a NAAQS violation. Commenters in that rulemaking likewise 
argued that the EPA was required to prove a causal connection between 
the excess emissions that occurred during a specific exempt malfunction 
and a specific violation of the NAAQS. In response to those comments, 
---------------------------------------------------------------------------
the EPA explained:

    [W]e need not show a direct causal link between any specific 
unavoidable breakdown excess emissions and violations of the NAAQS 
to conclude that the SIP is substantially inadequate. It is our 
interpretation that the fundamental integrity of the CAA's SIP 
process and structure is undermined if emission limits relied on to 
meet CAA requirements can be exceeded without potential recourse by 
any entity granted enforcement authority by the CAA. We are not 
restricted to issuing SIP calls only after a violation of the NAAQS 
has occurred or only where a specific violation can be linked to a 
specific excess emissions event.\317\
---------------------------------------------------------------------------

    \317\ Id., 76 FR 21639 at 21643.

    The EPA's interpretation of section 110(k)(5) in the Utah action 
was directly challenged in US Magnesium, LLC v. EPA.\318\ Among other 
claims, the petitioners argued that the EPA did not have authority for 
the SIP call because the Agency had not ``set out facts showing that 
the [SIP provision] has prevented Utah from attaining or maintaining 
the NAAQS or otherwise complying with the CAA.'' Thus, the same 
arguments raised by commenters in this action have previously been 
advanced and rejected by the EPA and the courts. The court expressly 
upheld the EPA's interpretation of section 110(k)(5), concluding:
---------------------------------------------------------------------------

    \318\ 690 F.3d 1157 (10th Cir. 2012).

    Certainly, a SIP could be deemed substantially inadequate 
because air-quality records showed that actions permitted under the 
SIP resulted in NAAQS violations, but the statute can likewise apply 
to a situation like this, where the EPA determines that a SIP is no 
longer consistent with the EPA's understanding of the CAA. In such a 
case, the CAA permits the EPA to find that a SIP is substantially 
inadequate to comply with the CAA, which would allow the EPA to 
issue a SIP call under CAA section 110(k)(5).\319\
---------------------------------------------------------------------------

    \319\ Id. 690 F.3d at 1168.

    Finally, the EPA disagrees with the commenters on this specific 
point because it is not a logical construction of section 110(k)(5). 
The implication of the commenters' argument is that if a given area is 
in attainment, then the question of whether the SIP provisions meet 
applicable legal requirements is irrelevant. If a given area is not in 
attainment, then the implication of the commenter's argument is that 
the EPA must prove that the legally deficient SIP provision factually 
caused the violation of the NAAQS or else the legal deficiency is 
irrelevant. In the latter case, the logical extension of the 
commenter's argument is that no matter how deficient a SIP provision is 
to meet applicable legal requirements, the EPA is foreclosed from 
directing the state to correct that deficiency unless and until there 
is proof of a specific environmental harm caused, or specific 
enforcement case thwarted, by that deficiency. Such a reading is 
inconsistent with both the letter and the intent of section 110(k)(5).
    2. Comments that the EPA must make specific factual findings to 
meet the

[[Page 33934]]

requirements of section 110(a)(2)(H)(ii) to have authority to issue a 
SIP call.
    Comment: A number of commenters argued that even if section 
110(k)(5) does not require the EPA to provide a technical analysis to 
support a finding of substantial inadequacy, section 110(a)(2)(H)(ii) 
does impose this obligation. The commenters noted that section 
110(a)(2)(H)(ii) requires states to revise their SIPs ``whenever the 
Administrator finds on the basis of information available to the 
Administrator that the plan is substantially inadequate.'' The 
commenters claimed that this statutory language imposes a requirement 
for the EPA to ``find'' the SIP inadequate and ``clearly indicates that 
a SIP Call must be justified by factual findings supported by record 
evidence.''
    One commenter argued that the use of the word ``finds'' should be 
read in light of the dictionary definition of ``find''--``to discover 
by study or experiment.'' The commenter noted that courts commonly hold 
that agencies must draw a link between the facts and a challenged 
agency decision. To support this basic principle of administrative law, 
the commenter cited a litany of cases including: Motor Vehicle Mfrs 
Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983); 
Appalachian Power Co. v. EPA, 251 F.3d 1026, 1034 (D.C. Cir. 2001); Tex 
Tin Corp. v. EPA, 992 F.2d 353, 356 (D.C. Cir. 1993); Nat'l Gypsum v. 
EPA, 968 F.2d 40, 43-44 (D.C. Cir. 1992); Michigan v. EPA, 213 F.3d 
663, 681 (D.C. Cir. 2000). Thus, the commenter suggested that the 
statutory language of section 110(a)(2)(H)(ii) requires a specific 
factual or technical demonstration concerning the ambient air impacts 
of an inadequate SIP provision, even if the language of section 
110(k)(5) does not.
    Another commenter argued that the phrase ``on the basis of 
information available to the Administrator'' in section 
110(a)(2)(H)(ii) means that the EPA must not only consider the specific 
terms of the SIP provisions relative to the legal requirements of the 
statute but must also consider other information that is ``available,'' 
including how the provisions have been affecting air quality or 
enforcement since approval. In support of this proposition, the 
commenter cited 1970 legislative history for section 110(a)(2)(H):

    Whenever the Secretary or his representative finds from new 
information developed after the plan is approved that the plan is 
not or will not be adequate to achieve promulgated ambient air 
quality standards he must notify the appropriate States and give 
them an opportunity to respond to the new information.\320\
---------------------------------------------------------------------------

    \320\ See S. Rep No. 91-1196 at 55-56 (1970).

    Thus, the commenter concluded that the EPA must not only find that 
the SIP is facially inconsistent with the legal requirements of the CAA 
but also find it ``substantially inadequate'' to achieve the goals of 
the requirements as a factual matter before issuing a SIP call. The 
implication of the commenter's argument is that section 
110(a)(2)(H)(ii) imposes additional limitations upon the EPA's 
authority to issue a SIP call.
    Response: The EPA disagrees that it has not made the findings 
necessary to support the present SIP call action. The thrust of the 
commenters' argument is that the facts that the EPA ``finds'' or the 
``information'' upon which the EPA bases such a finding can only be 
technical or scientific facts proving that a given SIP provision 
resulted in emissions that caused a specific violation of the NAAQS. As 
with section 110(k)(5), however, nothing in section 110(a)(2)(H)(ii) 
compels such a narrow reading. The plain language of section 
110(a)(2)(H)(ii) does not support the commenters' arguments. To the 
extent that section 110(a)(2)(H)(ii) is ambiguous, however, the EPA 
does not interpret it to require the types of technical findings 
claimed by the commenters in the case of SIP provisions that do not 
meet legal requirements of the CAA. To the contrary, the EPA interprets 
the statutory language to leave to the Agency's discretion what facts 
or information are necessary to find that a given SIP provision is 
substantially inadequate. In short, the EPA's ``finding'' may be a 
finding that a SIP provision does not meet applicable legal 
requirements without definitive proof that this legal deficiency caused 
a specific outcome, such as a specific impact on the NAAQS or a 
specific enforcement action.
    First, section 110(a)(2)(H)(ii) does not on its face directly 
address the scope of the EPA's authority, unlike section 110(k)(5). 
Section 110(a)(2)(H)(ii) appears in section 110(a)(2), which contains a 
listing of specific structural or program requirements that each 
state's SIP must include. In the case of section 110(a)(2)(H)(ii), the 
CAA requires each state to have provisions in its SIP that ``provide 
for revision of such plan'' in the event that the EPA issues a SIP 
call. Given that section 110(k)(5) is the provision that directly 
addresses the EPA's authority to issue a SIP call, section 
110(a)(2)(H)(ii) should not be interpreted in a way that contradicts or 
curtails the broad authority provided in section 110(k)(5). The EPA 
does not interpret section 110(k)(5) to require proof that a given SIP 
provision caused a specific environmental harm or undermined a specific 
enforcement action in order to find the provision substantially 
inadequate. If the provision fails to meet fundamental legal 
requirements of the CAA for SIP provisions, that alone is sufficient.
    Second, even if read in isolation, section 110(a)(2)(H)(ii) does 
not specify what type of finding the EPA is required to make or specify 
the way in which the Agency should make such a finding. The EPA agrees 
that this section of the CAA describes findings that the EPA makes ``on 
the basis of information available to the Administrator that the plan 
is substantially inadequate to attain'' the NAAQS. This section does 
not, however, expressly state that the ``information'' in question must 
be a particular form of information, nor does it expressly require any 
specified form of technical analysis such as modeling that demonstrates 
that a particular SIP deficiency caused a violation of the NAAQS. 
Because the term ``information'' is not limited in this way, the EPA 
interprets it to mean whatever form of information is relevant to the 
finding in question. For certain types of deficiencies, the EPA may 
determine that such a technical analysis is appropriate, but that does 
not mean that it is required as a basis for all findings of substantial 
inadequacy.\321\
---------------------------------------------------------------------------

    \321\ See, e.g., ``Finding of Significant Contribution and 
Rulemaking for Certain States in the Ozone Transport Assessment 
Group Region for Purposes of Reducing Regional Transport of Ozone; 
Final rule,'' 63 FR 57355 (October 27, 1998) (EPA found that the 
SIPs of multiple states did not adequately control emissions that 
resulted in significant contribution to nonattainment in other 
states); ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call; Final rule,'' 75 FR 77697 (December 13, 2010) (EPA found that 
the SIPs of multiple states did not meet the legal requirements for 
PSD permitting for GHG emissions).
---------------------------------------------------------------------------

    Third, section 110(a)(2)(H)(ii), like section 110(k)(5), is not 
limited to findings related exclusively to attainment of the NAAQS. 
Section 110(a)(2)(H)(ii) also expressly refers to findings by the EPA 
that a SIP is substantially inadequate ``to otherwise comply with any 
additional requirements established under'' the CAA. The EPA interprets 
this explicit reference to ``any additional requirements'' to include 
any legal requirements applicable to SIP provisions, such as the 
requirement that emission limitations must apply continuously. The 
commenters misconstrue section 110(a)(2)(H)(ii) to

[[Page 33935]]

refer exclusively to provisions that are literally found to cause a 
specific violation of the NAAQS. The EPA acknowledges that the 
legislative history quoted by the commenters discusses findings related 
to a failure of a SIP to attain the NAAQS, but the passage quoted does 
not explain the meaning of ``new information'' any more specifically 
than the statute, nor does the passage explain why the actual statutory 
text of section 110(a)(2)(H)(ii) now refers to findings related to 
failures to meet ``any additional requirements'' of the CAA.\322\ 
Moreover, the commenters did not address the changes to the CAA in 1977 
that added to the statutory language to refer to other requirements, 
nor did they address the changes to the CAA in 1990 that added section 
110(k)(5), which refers to all other requirements of the CAA. The EPA 
believes that the more recent changes to the statute in fact support 
its view that section 110(a)(2)(H)(ii) entails compliance with the 
legal requirements of the CAA, not the narrow reading advocated by the 
commenters.
---------------------------------------------------------------------------

    \322\ The EPA notes that the significance of this 1970 
legislative history was raised in US Magnesium, LLC v. EPA, 690 F.3d 
1157, 1166 (10th Cir. 2012). That court found the legislative 
history ``inapposite'' simply because it did not pertain to section 
110(k)(5) which Congress added to the CAA in 1990. This legislative 
history passage is of limited significance in this action as well.
---------------------------------------------------------------------------

    Fourth, the EPA disagrees with the commenters' arguments that it 
did not make factual ``findings'' to support this SIP call. To the 
contrary, the EPA has made numerous factual determinations with regard 
to the specific SIP provisions at issue. For example, for those SIP 
provisions that include automatic exemptions for emissions during SSM 
events, the EPA has found that the provisions are inconsistent with the 
definition of ``emission limitation'' in section 302(k) and that SIP 
provisions that allow sources to exceed otherwise applicable emission 
limitations during SSM events may interfere with attainment and 
maintenance of the NAAQS. The EPA has also made the factual 
determination that other SIP provisions that authorize director's 
discretion exemptions during SSM events are inconsistent with the 
statutory provisions applicable to the approval and revision of SIP 
provisions. The EPA has found that overbroad enforcement discretion 
provisions are inconsistent with the enforcement structure of the CAA 
in that they could be interpreted to allow the state to make the final 
decision whether such emissions are violations, thus impeding the 
ability of the EPA and citizens to enforce the emission limitations of 
the SIP. Similarly, the EPA has found, consistent with the court's 
decision in NRDC v. EPA, that affirmative defenses in SIP provisions 
are inconsistent with CAA requirements because they operate to alter or 
eliminate the jurisdiction of the courts to determine liability and 
impose penalties. In short, the EPA has made the factual findings that 
specific provisions are substantially inadequate to meet requirements 
of the CAA, as contemplated in both section 110(a)(2)(H)(ii) and 
section 110(k)(5).
    Finally, the EPA notes that the cases cited by the commenters to 
support their contentions concerning the factual basis for agency 
decisions are not relevant to the specific question at hand. The 
correct question is whether section 110(a)(2)(H)(ii) requires the type 
of factual or technical analysis that they claim. None of the cases 
they cited address this specific issue. By contrast, the decision of 
the Tenth Circuit in US Magnesium, LLC v. EPA is much more relevant. In 
that decision, the court concluded that the EPA's authority under 
section 110(k)(5) is not restricted to situations where a deficient SIP 
provision caused a specific violation of the NAAQS and the exercise of 
that authority does not require specific factual findings that the 
provision caused such impacts.\323\
---------------------------------------------------------------------------

    \323\ Id., 690 F.3d 1157, 1166.
---------------------------------------------------------------------------

    3. Comments that the EPA lacks authority to issue a SIP call 
because it is interpreting the term ``substantial inadequacy'' 
incorrectly.
    Comment: Some commenters claimed that although the term 
``substantially inadequate'' is not defined in the statute, the EPA 
made no effort to interpret the term. Citing Qwest Corp. v. FCC, 258 
F.3d 1191, 1201-02 (10th Cir. 2001), the commenters argued that the EPA 
is not entitled to any deference to its interpretation of the term 
``substantial inadequacy.''
    Other commenters acknowledged that the EPA took the position that 
the term ``substantially inadequate'' is not defined in the CAA and 
that the Agency can establish an interpretation of that provision under 
Chevron step 2. However, these commenters disagreed that the EPA's 
interpretation of the term in the February 2013 proposal was 
reasonable. In particular, the commenters disagreed with the EPA's view 
that once a SIP provision is found to be ``facially inconsistent'' with 
a specific legal requirement of the CAA, nothing more is required to 
find the provision ``substantially inadequate'' to ``comply with'' that 
requirement. Commenters claimed that the EPA's interpretation conflicts 
with the statute because it ignores the statutory requirement that a 
SIP call be based on inadequacies that are ``substantial'' and that the 
interpretation does not meet the ``high bar'' Congress established 
before states could be required to undertake the difficult task of 
revising a SIP.
    State commenters claimed that the requirement that the EPA must 
determine that the SIP is ``substantially'' inadequate establishes a 
heavy burden for the EPA. The commenters relied on a dictionary 
definition of ``substantially'' as meaning ``considerable in 
importance, value, degree, amount, or extent.'' The commenters argued 
that when modifying the word ``inadequate,'' the use of the modifier 
``substantially'' in section 110(k)(5) enhances the degree of proof 
required. Thus, the commenters argued that the EPA cannot just assume 
that the provisions may prevent attainment of the NAAQS.
    Other industry commenters disagreed that the term ``substantially 
inadequate'' is ambiguous but claimed that even if it were, the EPA's 
own interpretation is vague and ambiguous. The commenters asserted that 
the EPA's statement that it must evaluate the adequacy of specific SIP 
provision ``in light of the specific purposes for which the SIP 
provision at issue is required'' and with respect to whether the 
provision meets ``fundamental legal requirements applicable to such a 
provision'' is not a reasonable interpretation of the statutory 
language. Furthermore, the commenters argued, the EPA's interpretation 
of section 110(k)(5) to authorize a SIP call in the absence of any 
causal evidence that the SIP provision at issue causes a particular 
environmental impact reads out of the statute ``the explicit 
requirement that a SIP call related to NAAQS be made only where the 
state plan is substantially inadequate to attain or maintain the 
relevant standard.''
    Response: The EPA disagrees with commenters who claimed that the 
Agency did not explain its interpretation of section 110(k)(5) in 
general, or the term ``substantially inadequate'' in particular, in the 
February 2013 proposal. To the contrary, the EPA provided an 
explanation of why it considers section 110(k)(5) to be ambiguous and 
provided a detailed explanation of how the Agency is interpreting and 
applying that statutory language to the specific SIP provisions at 
issue in this action.\324\ Moreover, the EPA explained why it believes 
that the four major types of

[[Page 33936]]

provisions at issue are inconsistent with applicable legal requirements 
of the CAA and thus substantially inadequate. In the SNPR, the EPA 
reiterated its interpretation of section 110(k)(5) with respect to 
affirmative defense provisions in SIPs but updated that interpretation 
in response to the logic of the more recent court decision in NRDC v. 
EPA. Thus, the commenters' reliance on the Qwest decision is not 
appropriate, because the EPA did explain its interpretation of the 
statute and it is not one that is contrary to the statute. A more 
appropriate precedent is the decision in US Magnesium, LLC v. EPA, in 
which the same court upheld the EPA's interpretation of its authority 
under section 110(k)(5). In short, the EPA believes that section 
110(k)(5) provides the EPA with discretion to determine what 
constitutes a substantial inadequacy and to determine the appropriate 
basis for such a finding in light of the relevant CAA requirements at 
issue. Thus, the commenters are in error that the EPA did not 
articulate its interpretation of section 110(k)(5).
---------------------------------------------------------------------------

    \324\ See February 2013 proposal, 78 FR 12459 at 12483-88.
---------------------------------------------------------------------------

    The EPA also disagrees with those commenters who argued that the 
Agency has ignored or misinterpreted the term ``substantial'' in this 
action. As many commenters acknowledged, this term is not defined in 
the statute. Their reliance on a dictionary definition, however, is 
based on the incorrect premise that a failure to comply with the legal 
requirements of the CAA for SIP provisions is not ``considerable in 
importance, value, degree, amount, or extent.''
    First, the commenters' argument ignores the full statutory language 
of section 110(k)(5) in which the EPA is authorized to issue a SIP call 
whenever it determines that a given SIP provision is inadequate, not 
only because of impacts on attainment of the NAAQS but also upon a 
failure to meet ``any other requirement'' of the CAA. As explained in 
the February 2013 proposal and in the SNPR, the EPA interprets its 
authority under section 110(k)(5) to encompass any type of deficiency, 
including failure to meet specific legal requirements of the CAA for 
SIP provisions. Failure to comply with these legal requirements can 
have the effect of interfering with attainment and maintenance of the 
NAAQS (e.g., by allowing unlimited emissions from sources during SSM 
events), but the failure to comply with the legal requirements is in 
and of itself a basis for a SIP call.
    Second, the commenters' argument implies that failure of a SIP 
provision to meet a legal requirement of the CAA is not a 
``substantial'' inadequacy. The EPA strongly disagrees with the view 
that complying with applicable legal requirements is not an important 
consideration in general, and not important with respect to the 
specific legal defects at issue here. For example, the EPA considers a 
SIP provision that does not apply continuously because it contains SSM 
exemptions to be substantially inadequate because it fails to meet 
legal requirements of sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). 
In particular, failure to meet the legal requirements for an emission 
limitation as contemplated in section 302(k) is a ``substantial'' 
inadequacy. The EPA is not alone in this view; the D.C. Circuit in the 
Sierra Club v. Johnson case held that emission limitations must be 
continuous and cannot contain SSM exemptions. If inclusion of SSM 
exemptions in emission limitations were not a ``substantial'' 
deficiency from the court's perspective, presumably the court would 
have ruled differently. As another example, the EPA considers the 
inclusion of affirmative defenses in SIP provisions that operate to 
alter the jurisdiction of the courts to be a substantial inadequacy. 
Again, the EPA's view that SIP provisions cannot interfere with the 
enforcement structure of the CAA set forth in section 113 and section 
304 is not unreasonable. The court's decision in NRDC v. EPA held that 
EPA regulations cannot alter or eliminate the jurisdiction of courts to 
determine liability and impose remedies in judicial enforcement cases 
and this same logic extends to the states in SIP provisions. Contrary 
to the arguments of the commenters, the EPA reasonably interprets the 
term ``substantial'' in section 110(k)(5) to include compliance with 
the legal requirements of the CAA applicable to SIP provisions.
    Third, the EPA notes that its reading of section 110(k)(5) does not 
``read out of the statute'' the statutory language that SIP provisions 
can be substantially inadequate ``to attain or maintain the relevant 
NAAQS'' as claimed by the commenters. The EPA agrees that SIP 
provisions can be found substantially inadequate for this specific 
reason, but it is the commenters who read words out of section 
110(k)(5) by disregarding the portion of the statute that also 
authorizes a SIP call whenever a SIP provision does not ``comply with 
any requirement of'' the CAA. Indeed, the EPA believes that SIP 
provisions that fail to meet the specific legal requirements of the CAA 
are very likely to have these impacts as well; e.g., the unlimited 
emissions authorized by SSM exemptions can interfere with attainment 
and maintenance of the NAAQS. The EPA believes that Congress 
consciously included these fundamental legal requirements in order to 
assure that SIP provisions will achieve the objectives of the CAA, such 
as attainment and maintenance of the NAAQS. For example, legislative 
history for section 302(k) indicates that Congress intentionally 
required that emission limitations apply continuously in order to 
assure that they would achieve these goals as well as be consistent 
with the enforcement structure of the CAA.\325\
---------------------------------------------------------------------------

    \325\ See, e.g., H.R. 95-294, at 92 (1977) (referring to 
emission limitations as a fundamental tool for assuring attainment 
and maintenance of the NAAQS and stating that unless they are 
``complied with at all times, there can be no assurance that ambient 
standards will be attainment and maintained.''
---------------------------------------------------------------------------

    4. Comments that the EPA lacks authority to issue a SIP call 
because it is required to ``quantify'' the magnitude of any alleged SIP 
deficiency in order to establish that it is substantial.
    Comment: A number of commenters argued that, in addition to failing 
to provide a required technical analysis to support a SIP call, the EPA 
was also failing to quantify in advance the degree of inadequacy that 
is necessary for a given SIP provision to be substantially inadequate. 
The commenters asserted that the EPA has a burden to define in advance 
what amount of inadequacy is ``substantial,'' before the Agency can 
require states to comply with a SIP call. Some commenters made this 
argument based upon their experience with prior SIP call rulemakings, 
such as the NOX SIP call in which the Agency performed such 
an analysis. Other commenters, however, evidently based this argument 
upon their reading of the D.C. Circuit's decision in EME Homer City 
Generation, L.P. v. EPA.\326\ Some commenters also argued that ``all'' 
past EPA SIP calls have been based upon a specific technical analysis 
concerning the sufficiency of a SIP to provide for attainment and 
maintenance of a NAAQS and that this establishes that such an analysis 
is always required.
---------------------------------------------------------------------------

    \326\ 696 F.3d 7, 29 (D.C. Cir. 2012) rev'd, 134 S. Ct. 1584 
(2014).
---------------------------------------------------------------------------

    Response: The EPA disagrees that section 110(k)(5) requires the 
Agency to ``quantify'' the degree of inadequacy in a given SIP 
provision before issuing a SIP call. As explained in detail in the 
February 2013 proposal and this document, the EPA interprets section 
110(k)(5) to authorize the Agency to determine the nature of the 
analysis necessary to make a finding that a SIP provision is 
substantially inadequate. The EPA agrees that for certain SIP call 
actions, such as the NOX SIP call, the

[[Page 33937]]

specific nature of the SIP call in question for section 110(a)(2)(D)(i) 
did warrant a technical evaluation of whether the emissions from 
sources in particular states were significantly contributing to 
violations of a NAAQS in other states. Thus, the EPA elected to perform 
a specific form of analysis to determine whether emissions from sources 
in certain states significantly contributed to violations of the NAAQS 
in other states, and if so, what degree of reductions were necessary to 
remedy that interstate transport.
    The nature of the SIP deficiencies at issue in this action does not 
require that type of technical analysis and does not require a 
``quantification'' of the extent of the deficiency. In this action, the 
EPA is promulgating a SIP call action that directs the affected states 
to revise existing SIP provisions with specific legal deficiencies that 
make the provisions inconsistent with fundamental legal requirements of 
the CAA for SIPs, e.g., automatic exemptions for emissions during SSM 
events or affirmative defense provisions that limit or eliminate the 
jurisdiction of courts to determine liability and impose remedies for 
violations. Accordingly, the EPA has determined that it is not 
necessary to establish that these deficiencies literally caused a 
specific violation of the NAAQS on a particular day or undermined a 
specific enforcement case. It is sufficient that the provisions fail to 
meet a legal requirement of the CAA and thus are substantially 
inadequate as provided in section 110(k)(5).
    5. Comments that the EPA's interpretation of substantial inadequacy 
would override state discretion in development of SIP provisions.
    Comment: Some state and industry commenters argued that the EPA's 
interpretation of its authority under section 110(k)(5) is wrong 
because it is inconsistent with the principle of cooperative 
federalism. These commenters asserted that the EPA's interpretation of 
the term ``substantially inadequate,'' as explained in the February 
2013 proposal, would allow the Agency to dictate that states revise 
their SIPs without any consideration of whether the states' preferred 
control measures affect attainment of the NAAQS, thereby expanding the 
EPA's role in CAA implementation. Consequently, these commenters 
concluded, the EPA's interpretation of section 110(k)(5) is neither 
``reasonable'' nor ``a permissible construction of the statute'' under 
the principles of Chevron deference.\327\
---------------------------------------------------------------------------

    \327\ Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 
467 U.S. 837, 843-44 (1984).
---------------------------------------------------------------------------

    Response: The EPA disagrees with the commenters' view of the 
cooperative-federalism relationship established in the CAA, as 
explained in detail in section V.D.2 of this document. Because the 
commenters are misconstruing the respective responsibility and 
authorities of the states and the EPA under cooperative federalism, the 
Agency does not agree that its interpretation of section 110(k)(5) is 
``unreasonable'' for this reason under the principles of Chevron. As 
explained in detail in the February 2013 proposal, the EPA interprets 
its authority under section 110(k)(5) to include the ability to require 
states to revise their SIP provisions to correct the types of 
deficiencies at issue in this action.
    Section 110(k)(5) explicitly authorizes the EPA to issue a SIP call 
for a broad range of reasons, including to address any SIP provisions 
that relate to attainment and maintenance of the NAAQS, to interstate 
transport, or to any other requirement of the CAA.\328\ The EPA's 
authority and responsibility to review SIP submissions in the first 
instance is to assure that they meet all applicable procedural and 
substantive requirements of the CAA, in accordance with the 
requirements of sections 110(k)(3), 110(l) and 193. The EPA's authority 
and responsibility under the CAA includes assuring that SIP provisions 
comply with specific statutory requirements, such as the requirement 
that emission limitations apply to sources continuously. The CAA 
imposes these statutory requirements in order to assure that the larger 
objectives of SIPs are achieved, such as the attainment and maintenance 
of the NAAQS, protection of PSD increments, improvement of visibility 
and providing for effective enforcement. The CAA imposes this authority 
and responsibility upon the EPA when it first evaluates a SIP 
submission for approval. Likewise, after the initial approval, section 
110(k)(5) authorizes the EPA to require states to revise their SIPs 
whenever the Agency later determines that to be necessary to meet CAA 
requirements. This does not in any way allow the EPA to interfere in 
the states' selection of the control measures they elect to impose to 
satisfy CAA requirements relating to NAAQS attainment and maintenance, 
provided that those selected measures comply with all CAA requirements 
such as the need for continuous emissions limitations. Accordingly, the 
EPA believes that its interpretation of section 110(k)(5) is fully 
consistent with the letter and the purpose of the principles of 
cooperative federalism.
---------------------------------------------------------------------------

    \328\ See, e.g., US Magnesium, LLC v. EPA, 690 F.3d 1157, 1168 
(10th Cir. 2012) (citing 42 U.S.C. 7410(k)(5)) (holding that the EPA 
may issue a SIP call not only based on NAAQS violations, but also 
whenever ``EPA determines that a SIP is no longer consistent with 
the EPA's understanding of the CAA''); id. at 1170 (upholding the 
EPA's authority ``to call a SIP in order to clarify language in the 
SIP that could be read to violate the CAA,'' even absent a pertinent 
judicial finding).
---------------------------------------------------------------------------

    6. Comments that the EPA cannot issue a SIP call for an existing 
SIP provision unless the provision was deficient at the time the state 
originally developed and submitted the provision for EPA approval.
    Comment: Commenters argued that the EPA is using the SIP call to 
require states to change SIP provisions that were acceptable at the 
time they were originally approved and argued that section 110(k)(5) 
cannot be used for that purpose. Specifically, one commenter asserted 
that section 110(k)(5) provides that findings of substantial inadequacy 
shall ``subject the State to the requirements of this chapter to which 
the State was subject when it developed and submitted the plan for 
which such finding was made.'' (Emphasis added by commenter.) The 
implication of the commenters' argument is that a SIP provision only 
needs to meet the requirements of the CAA that were applicable at the 
time the state originally developed and submitted the provision for EPA 
approval. Because the EPA has no authority to issue a SIP call under 
their preferred reading of section 110(k)(5), the commenters claimed, 
the EPA would have to use its authority under section 110(k)(6) and 
would have to establish that the original approval of each of the 
provisions at issue in this action was in error.
    Response: The EPA disagrees with this reading of section 110(k)(5). 
As an initial matter, the commenter takes the quoted excerpt of the 
statute out of context. The quoted language follows ``to the extent the 
Administrator deems appropriate.'' Thus, it is clear when the statutory 
provision is read in full that the EPA has discretion in specifying the 
requirements to which the state is subject and is not limited to 
specifying only those requirements that applied at the time the SIP was 
originally ``developed and submitted.'' Moreover, this cramped reading 
of section 110(k)(5) is not a reasonable interpretation of the statute 
because by this logic, the EPA could never require states to update 
grossly out-of-date SIP provisions so long as the provisions originally 
met CAA requirements. Given that the CAA creates a process by which

[[Page 33938]]

the EPA is required to establish and to update the NAAQS on a 
continuing basis, and states are required to update and revise their 
SIPs on a continuing basis, the Agency believes that Congress would not 
have intended that SIP provisions remain static for all time simply 
because they were adequate when first developed and approved. Such an 
interpretation would mean that subsequent legally significant events 
such as amendments of the CAA, court decisions interpreting the CAA and 
new or revised EPA regulations are not relevant to the continuing 
adequacy of existing SIP provisions. Similarly, such an interpretation 
would mean that facts arising later could never provide a basis for a 
SIP call, e.g., to address interstate transport that was not evident at 
the time of the original development and approval of the SIP provisions 
or that needs to be addressed further because of a revised NAAQS.
    The commenters also argued that if a state's SIP provision was 
flawed at the time the EPA approved it, then the Agency's only 
alternative for addressing the deficient provision is through the error 
correction authority of section 110(k)(6). The EPA disagrees. The CAA 
provides a number of tools to address flawed SIPs and the EPA does not 
interpret these provisions to be mutually exclusive. While the EPA 
could potentially have relied on section 110(k)(6) to remove the 
deficient provisions at issue in this action, the Agency believes that 
section 110(k)(5) authority also provides a means to address flawed SIP 
provisions. As explained in the February 2013 proposal, the EPA 
specifically considered the relative merits of reliance on section 
110(k)(5) and section 110(k)(6) and determined that the former was a 
better approach for this action.\329\ In the present circumstances, the 
EPA is not addressing a single targeted flaw, i.e., a specific SIP 
revision that was flawed. Moreover, the EPA is not only dealing with a 
multitude of states in this action, but also in many cases with 
numerous SIP provisions developed over the years by a specific state. 
The provisions at issue often are included in several different places 
in a complex SIP and can affect multiple emission limitations in the 
SIP that apply to sources for purposes of multiple NAAQS.
---------------------------------------------------------------------------

    \329\ See February 2013 proposal, 78 FR 12459 at 12483, n.72.
---------------------------------------------------------------------------

    Comparing the SIP call and error correction approaches, the EPA 
concluded that the SIP call authority under section 110(k)(5) provides 
the better approach for this action, in that it allows the states to 
evaluate the overall structure of their existing SIPs and determine how 
best to modify the affected SIP provisions in order to address the 
identified deficiencies. By contrast, use of the error correction 
authority under section 110(k)(6) would result in immediate disapproval 
and removal of existing SIP provisions from the SIP, which could cause 
confusion in terms of what requirements apply to sources. Moreover, the 
EPA's disapproval of a SIP submission through an error correction that 
reverses a prior SIP approval of a required SIP provision starts a 
``sanctions clock,'' and sanctions would apply if the state has not 
submitted a revised SIP within 18 months. Similarly, the EPA would be 
required to promulgate a FIP if the Agency has not approved a revised 
SIP submission from the state within 24 months. In comparison, the 
sanctions and federal plan ``clocks'' would not start under the SIP 
call approach unless and until the state fails to submit a SIP revision 
in response to this SIP call, or unless and until the EPA disapproves 
that SIP submission. As explained in the February 2013 proposal, the 
EPA determined that the SIP call process was a better procedure through 
which to address the deficient SIP provisions at issue in this action.
    7. Comments that the EPA failed to consider how excess emissions 
resulting from SSM exemptions would affect compliance with specific 
NAAQS, including NAAQS with different averaging periods or different 
statistical forms.
    Comment: In addition to general claims that the EPA failed to 
provide required technical analysis to support the proposed SIP call to 
states for automatic and discretionary SSM exemptions, commenters 
specifically argued that the EPA is required to establish that these 
exemptions have caused violations in light of the considerations such 
as the averaging time or statistical form of specific NAAQS. The 
implication of the commenters' argument is that in order to demonstrate 
that a given SIP provision with an SSM exemption is substantially 
inadequate under section 110(k)(5), the EPA has to establish 
definitively that the emissions during SSM events would cause a 
violation of a particular NAAQS. This would potentially include an 
evaluation of the impacts of the exempted emissions on NAAQS with 
different averaging periods, e.g., impacts on an annual NAAQS, a 24-
hour NAAQS, or a 1-hour NAAQS, and impacts on NAAQS with different 
statistical forms, e.g., a NAAQS that measures attainment by an annual 
arithmetical mean versus one that is measured by a 98th-percentile 
value. Moreover, commenters alluded to the difficulty of ascertaining 
definitively how emissions of specific precursor pollutants during a 
given exempted SSM event would affect attainment of one or more NAAQS.
    To support the argument that the validity of SSM exemptions must be 
evaluated with respect to specific NAAQS, the commenters relied upon 
recent modeling guidance for the 1-hour NO2 NAAQS in which, 
the commenters claimed, the EPA directed states to disregard emissions 
during SSM events for purposes of demonstrating compliance with that 
NAAQS. The commenters claimed that the cited EPA guidance supports 
their argument that emissions from a source during any specific SSM 
event are unlikely to cause a violation of the 1-hour NO2 
NAAQS. Accordingly, the commenters argued that the EPA has no authority 
to interpret the CAA to preclude exemptions for emissions during SSM 
events without first demonstrating that the exempt emissions cause 
NAAQS violations.
    Response: As explained in the February 2013 proposal, and in 
response to other comments in this action, the EPA does not interpret 
section 110(k)(5) to require a specific technical analysis to support a 
SIP call related to legal deficiencies in SIP provisions. In section 
110(k)(5), Congress left it to the Agency's discretion to determine 
what type and level of analysis is necessary to establish that a SIP 
provision is substantially inadequate. As explained in the February 
2013 proposal, the EPA does not need to define the precise contours of 
its authority under section 110(k)(5) for all potential types of SIP 
deficiencies in this action. For purposes of this action, it is 
sufficient that the SIP provisions at issue are inconsistent with 
applicable requirements. While an ambient air quality impact analysis 
may be appropriate to support a SIP call with respect to certain 
requirements of the CAA, e.g., a SIP call for failure to have SIP 
provisions to prevent significant contribution to nonattainment in 
another state in accordance with section 110(a)(2)(D)(i)(I), the EPA 
does not interpret the CAA to require such an analysis in all 
instances. In particular, where the substantial inadequacy is related 
to a failure to meet a fundamental legal requirement for SIP 
provisions, such as the requirement in section 302(k) that emission 
limitations apply continuously, the EPA does not believe that such a 
technical analysis is required.

[[Page 33939]]

    For example, section 302(k) does not differentiate between the 
legal requirements applicable to SIP emission limitations for an annual 
NAAQS versus for a 1-hour NAAQS, nor between any NAAQS based upon the 
statistical form of the respective standards. In addition to being 
supported by the text of section 302(k), the EPA's interpretation of 
the requirement for sources to be subject to continuous emission 
limitations is also the most logical given the consequences of the 
commenters' theory. The commenters' argument provides additional 
practical reasons to support the EPA's interpretation of the CAA to 
preclude exemptions for emissions during SSM events from SIP emission 
limitations as a basic legal requirement for all emission limitations.
    The EPA agrees that to ascertain the specific ambient impacts of 
emissions during a given SSM event can sometimes be difficult. This 
difficulty can be exacerbated by factors such as exemptions in SIP 
provisions that not only excuse compliance with emission limitations 
but also affect reporting or recordkeeping related to emissions during 
SSM events. Determining specific impacts of emissions during SSM events 
can be further complicated by the fact that the limited monitoring 
network for the NAAQS in many states may make it more difficult to 
establish that a given SSM event at a given source caused a specific 
violation of the NAAQS. Even if a NAAQS violation is monitored, it may 
be the result of emissions from multiple sources, including multiple 
sources having an SSM event simultaneously. The different averaging 
periods and statistical forms of the NAAQS may make it yet more 
difficult to determine the impacts of specific SSM events at specific 
sources, perhaps until years after the event occurred. By the 
commenters' own logic, there could be situations in which it is 
functionally impossible to demonstrate definitively that emissions 
during a given SSM event at a single source caused a specific violation 
of a specific NAAQS.
    The commenters' argument, taken to its logical extension, could 
result in situations where a SIP emission limitation is only required 
to be continuous for purposes of one NAAQS but not for another, based 
on considerations such as averaging time or statistical form of the 
NAAQS. Such situations could include illogical outcomes such as the 
same emission limitation applicable to the same source simultaneously 
being allowed to contain exemptions for emissions during SSM events for 
one NAAQS but not for another. For example, purely hypothetically under 
the commenters' premise, a given source could simultaneously be 
required to comply with a rate-based NOX emission limitation 
continuously for purposes of a 1-hour NO2 NAAQS but not be 
required to do so for purposes of an annual NO2 NAAQS, or 
the source could be required to comply continuously with the same NOx 
limitation for purposes of the 8-hour ozone NAAQS and the 24-hour 
PM2.5 NAAQS but not be required to do so for purposes of the 
annual PM2.5 NAAQS. Add to this the further complication 
that the source may be located in an area that is designated 
nonattainment for some NAAQS and attainment for other NAAQS, and thus 
subject to emission limitations for attainment and maintenance 
requirements simultaneously.
    Under the commenters' premise, the same SIP emission limitation, 
subject to the same statutory definition in section 302(k), could 
validly include SSM exemptions for purposes of some NAAQS but not 
others. Such a system of regulation would make it unnecessarily hard 
for regulated entities, regulators and other parties to determine 
whether a source is in compliance. The EPA does not believe that this 
is a reasonable interpretation of the requirements of the CAA, nor of 
its authority under section 110(k)(5). This unnecessary confusion is 
easily resolved simply by interpreting the CAA to require that a source 
subject to a SIP emission limitation for NOX must meet the 
emission limitation continuously, in accordance with the express 
requirement of section 302(k), thus making SSM exemptions 
impermissible. The EPA does not agree that the term ``emission 
limitation'' can reasonably be interpreted to allow noncontinuous 
emission limitations for some NAAQS and not others. The D.C. Circuit 
has already made clear that the term ``emission limitation'' means 
limits that apply to sources continuously, without exemptions for SSM 
events.
    Finally, the EPA disagrees with the specific arguments raised by 
commenters concerning the modeling guidance for the 1-hour 
NO2 NAAQS.\330\ As relevant here, that guidance provides 
recommendations about specific issues that arise in modeling that is 
used in the PSD program for purposes of demonstrating that proposed 
construction will not cause or contribute to a violation of the 1-hour 
NO2 NAAQS. Thus, as an initial matter, the EPA notes that 
the context of that guidance relates to determining the extent of 
emission reductions that a source needs to achieve in order to obtain a 
permit under the PSD program, which is distinct from the question of 
whether an emission limitation in a permit must assure continuous 
emission reductions.
---------------------------------------------------------------------------

    \330\ See Memorandum, ``Additional Clarification Regarding 
Application of Appendix W Modeling Guidance for the 1-hour 
NO2 National Ambient Air Quality Standard,'' from T. Fox, 
EPA/OAQPS, to Regional Air Division Directors, March 1, 2011.
---------------------------------------------------------------------------

    The commenters argued that this EPA guidance ``allows sources to 
completely exclude all emissions during startup and shutdown 
scenarios.'' This characterization is inaccurate for a number of 
reasons. First, the guidance in question is only intended to address 
certain modeling issues related to predictive modeling to demonstrate 
that proposed construction will not cause or contribute to violation of 
the 1-hour NO2 NAAQS, for purposes of determining whether a 
PSD permit may be issued and whether the emission limitations in the 
permit will require sufficient emission reductions to avoid a violation 
of this standard.
    Second, to the extent that the guidance indicates that air quality 
considerations might in certain circumstances and for certain purposes 
be relevant to determining what emission limitations should apply to a 
source, that does not mean a source may legally have an exemption from 
compliance with existing emissions limitations during SSM events. In 
the guidance cited by the commenter, the EPA did recommend that under 
certain circumstances, it may be appropriate to model the projected 
impact of the source on the NAAQS without taking into account 
``intermittent'' emissions from sources such as emergency generators or 
emissions from particular kinds of ``startup/shutdown'' 
operations.\331\ However, the EPA did not intend this to suggest that 
emissions from sources during SSM events may validly be treated as 
exempt in SIP emission limitations. Within the same guidance document, 
the EPA stated unequivocally that the guidance ``has no effect on or 
relevance to existing policies and guidance regarding excess emissions 
that may occur during startup and shutdown.'' The EPA explained further 
that ``all emissions from a new or modified source are subject to the 
applicable permitted emission limits and may be subject to enforcement 
concerning such excess emissions, regardless of whether a portion of 
those emissions are not included in the modeling demonstration based on 
the

[[Page 33940]]

guidance provided here.'' \332\ In other words, even if a state elects 
not to include intermittent emissions from some types of startup and 
shutdown events in certain modeling exercises, this does not mean that 
sources can be excused from compliance with the emission limitation 
during startup and shutdown, via an exemption for such emissions.
---------------------------------------------------------------------------

    \331\ Id. at 2.
    \332\ Id. at 11.
---------------------------------------------------------------------------

    Third, the guidance does not say that all SSM emissions may be 
considered intermittent and excluded from the modeling demonstration. 
The guidance explicitly recommends that the modeling be based on 
``emission scenarios that can logically be assumed to be relatively 
continuous or which occur frequently enough to contribute significantly 
to the annual distribution of daily maximum 1-hour concentrations'' and 
gives the example that it may be appropriate to include startup and 
shutdown emissions from a peaking unit at a power plant in the modeling 
demonstration because those units go through frequent startup/shutdown 
cycles.\333\ Thus, the guidance does not support commenters' premise 
that the EPA must evaluate the air quality impacts from SSM events in 
SIP actions to determine that SSM exemptions in SIP provisions are 
substantially inadequate to meet fundamental requirements of the CAA.
---------------------------------------------------------------------------

    \333\ Id. at 9.
---------------------------------------------------------------------------

    8. Comments that this SIP call action is inconsistent with 1976 EPA 
guidance for such actions.
    Comment: One commenter argued that the EPA misinterpreted the term 
``substantially inadequate'' in the February 2013 proposal because the 
Agency is reading this term differently than in the past. In support of 
this contention, the commenter pointed to a 1976 guidance document from 
the EPA concerning the question of when a SIP may be substantially 
inadequate. The commenter argued that the EPA is wrong to interpret 
that term to mean anything other than a demonstrated failure to provide 
for factual attainment of the NAAQS. According to the commenter, the 
content of the 1976 guidance indicates that the EPA is obligated to 
conduct a specific analysis to determine the air quality impact of an 
alleged inadequacy in a SIP provision and to establish and document the 
specific air quality impacts of the inadequacy.
    Response: The EPA disagrees with the commenter for multiple 
reasons. First, the 1976 document referred to by the commenter was the 
EPA's guidance on the requirements of the CAA as it was embodied in 
1970, not as Congress substantially amended it in 1990. The 1976 
guidance pertained not to the current SIP call provision at section 
110(k)(5) but rather to the requirements of section 110(a)(2)(H). This 
is particularly significant because the 1990 CAA Amendments added 
section 110(k)(5) to the statute. Although section 110(a)(2)(H) remains 
in the statute, it is primarily a requirement applicable to state 
``infrastructure'' SIP obligations through which states are required to 
have state law authority to meet the structural SIP elements required 
in section 110(a)(2).\334\ In reviewing SIPs for compliance with 
section 110(a)(2)(H), the EPA verifies that state SIPs include the 
legal authority to respond to any SIP call. By contrast, the EPA's 
authority to issue a SIP call under section 110(k)(5) is worded 
broadly, explicitly including the authority to make a finding of 
substantial inadequacy not only for failure to attain or maintain the 
NAAQS but also for failures related to interstate transport or 
``otherwise to comply with any requirement of'' the CAA.
---------------------------------------------------------------------------

    \334\ See Memorandum, ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under Clean Air Act Section 
110(a)(1) and 110(a)(2),'' from Stephen D. Page, Director, OAQPS, to 
Regional Air Directors, Regions 1-10, September 13, 2013, at page 51 
(explaining that a state meets section 110(a)(2)(H) by having 
authority to revise its SIP in response to a SIP call).
---------------------------------------------------------------------------

    Second, even setting aside that the guidance is not relevant to the 
EPA's authority under section 110(k)(5), the 1976 guidance on its face 
did not purport to define the full contours of the term ``substantially 
inadequate'' in section 110(a)(2)(H). The 1976 guidance stated 
explicitly that ``it is difficult to develop comprehensive guidelines 
for all cases'' and only listed ``[s]ome factors that could be 
considered'' in evaluating whether a state's SIP is substantially 
inadequate.\335\ While the EPA acknowledges that these factors were 
primarily focused upon ambient air considerations as suggested by the 
commenter, they were not limited to that topic. Moreover, the EPA 
stated that factors ``other than air quality and emission data must be 
considered'' and provided several examples, including potential 
amendments to the CAA under consideration at that point in time that 
might change state SIP obligations and thus create the need for a SIP 
call. More significantly, nothing in the 1976 guidance indicated that 
the EPA should or would ignore legal deficiencies in existing SIP 
provisions or that legal deficiencies are not relevant to the question 
of whether a SIP would provide for attainment of the NAAQS.
---------------------------------------------------------------------------

    \335\ Id. at 10-11.
---------------------------------------------------------------------------

    Third, the EPA notes that the commenter did not advocate that the 
Agency follow the 1976 guidance with respect to other issues, e.g., 
that the EPA would initiate the obligations of states to revise their 
SIPs simply by making an announcement of substantial inadequacy 
``without proposal''; that states would be required to make the 
necessary SIP revision within 12 months; or that states should make 
those revisions by no later than July 1, 1977.
    The EPA has fully articulated its interpretation of the term 
``substantial inadequacy'' in section 110(k)(5) in the February 2013 
proposal. As explained in the proposal, the EPA interprets its current 
authority to include the issuance of a SIP call for the types of legal 
deficiencies identified in this action. In order to establish that 
these legal deficiencies are substantial inadequacies, the EPA does not 
interpret section 110(k)(5) to require the Agency to document precisely 
how each deficiency factually undermines the objectives of the CAA, 
such as attainment and maintenance of the NAAQS in a particular 
location on a particular date. It is sufficient that these provisions 
are inconsistent with the legal requirements for SIP provisions set 
forth in the CAA that are intended to assure that SIPs in fact do 
achieve the intended objectives.
    10. Comments that because the EPA has misinterpreted the statutory 
terms ``emission limitation'' and ``continuous,'' the EPA has not 
established a substantial inadequacy.
    Comment: Many state and industry commenters disagreed with the 
EPA's interpretation of the CAA to prohibit SSM exemptions in SIP 
provisions. These arguments took many tacks, based on the 
interpretation of various statutory provisions, the applicability of 
the court decision in Sierra Club v. Johnson, alleged inconsistencies 
related to this requirement in the EPA's own NSPS and NESHAP 
regulations and a variety of other arguments. In particular, many 
commenters argued that the EPA was misinterpreting the statutory terms 
``emission limitation'' and ``continuous'' in section 302(k) to 
preclude automatic or discretionary exemptions for emissions during SSM 
events in SIP provisions. As an extension of these arguments, 
commenters also argued that the EPA lacks authority under section 
110(k)(5) to issue a SIP call when it has incorrectly interpreted a 
relevant statutory term as the basis for finding a SIP provision to be 
substantially inadequate.

[[Page 33941]]

    Response: The EPA disagrees that it lacks authority to issue this 
SIP call on the grounds claimed by the commenters. As explained in 
detail in the February 2013 proposal and in this final action, the EPA 
has long interpreted the CAA to preclude SSM exemptions in SIP 
provisions. This interpretation has been stated by the EPA since at 
least 1982, reiterated in subsequent SSM Policy guidance documents, 
applied in a number of notice and comment rulemakings and upheld by 
courts.
    With respect to the arguments that the EPA has incorrectly 
interpreted the terms ``emission limitation'' and ``continuous'' in 
this action, the EPA has responded in detail in section VII.A.3 of this 
document and need not repeat those responses here. In short, the EPA is 
interpreting those terms consistent with the relevant statutory 
language and consistent with the decision of the court in Sierra Club 
v. Johnson. Because the specific SIP provisions identified in this 
action with automatic or discretionary exemptions for emissions during 
SSM events do not limit emissions from the affected sources 
continuously, the EPA has found these provisions substantially 
inadequate to meet CAA requirements in accordance with section 
110(k)(5).
    11. Comments that section 110(k)(5) imposes a ``higher burden of 
proof'' upon the EPA than section 110(l) and that section 110(l) 
requires the EPA to conduct a specific technical analysis of the 
impacts of a SIP revision.
    Comment: Commenters argued that the EPA is misinterpreting section 
110(k)(5) to authorize a SIP call using a lower ``standard'' than the 
section 110(l) ``standard'' that requires disapproval of a new SIP 
provision in the first instance. The commenters stated that section 
110(k)(5) requires a determination by the EPA that a SIP provision is 
``substantially inadequate'' to meet CAA requirements in order to 
authorize a SIP call, whereas section 110(l) provides that the EPA must 
disapprove a SIP revision provision only if it ``would interfere with'' 
CAA requirements. Thus, the commenters asserted that ``the SIP call 
standard is higher than the SIP revision standard.'' The commenters 
further argued that it would be ``illogical and contrary to the CAA to 
interpret section 110 to establish a lower standard for calling a 
previously approved SIP and demanding revisions to it than for 
disapproving that SIP in the first place.'' For purposes of section 
110(l), the commenters claimed, the EPA ``is required'' to rely on 
specific ``data and evidence'' that a given SIP revision would 
interfere with CAA requirements and this requirement is thus imposed by 
section 110(k)(5) as well. In support of this reasoning, the commenters 
relied on prior court decisions pertaining to the requirements of 
section 110(l).
    Response: The EPA disagrees with the commenters' interpretations of 
the relative ``standards'' of section 110(k)(5) and section 110(l) and 
with the commenters' views on the court decisions pertaining to section 
110(l). In addition, the EPA notes that the commenters did not fully 
address the related requirements of section 110(k)(3) concerning 
approval and disapproval of SIP provisions, of section 302(k) 
concerning requirements for emission limitations or of any other 
sections of the CAA that are substantively germane to specific SIP 
provisions and to enforcement of SIP provisions in general.\336\
---------------------------------------------------------------------------

    \336\ CAA section 110(k)(5) states that ``[w]henever the [EPA] 
finds that the applicable implementation plan for any area is 
substantially inadequate to attain or maintain the relevant [NAAQS], 
to mitigate adequately [ ] interstate pollutant transport . . ., or 
to otherwise comply with any requirement of [the CAA], the [EPA] 
shall require the State to revise the plan as necessary to correct 
such inadequacies.'' Section 110(l) states that, in the event a 
state submits a SIP revision, the EPA ``shall not approve a revision 
of a plan if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress . 
. . or any other applicable requirement of [the CAA].'' Section 
110(k)(3) states that the EPA ``shall approve such submittal . . . 
if it meets all the requirements of [the CAA].''
---------------------------------------------------------------------------

    The commenters argued that, by the ``plain language'' of the CAA 
and because of ``common sense,'' Congress intended the section 
110(k)(5) SIP call standard to be ``higher'' than the section 110(l) 
SIP revision. The EPA disagrees that this is a question resolved by the 
``plain language.'' To the contrary, the three most relevant statutory 
provisions, section 110(k)(3), section 110(l), and section 110(k)(5), 
are each to some degree ambiguous and are likewise ambiguous with 
respect to how they operate together to apply to newly submitted SIP 
provisions versus existing SIP provisions. Section 110(k)(3) requires 
the EPA to approve a newly submitted SIP provision ``if it meets all of 
the applicable requirements of [the CAA].'' Implicitly, the EPA is 
required to disapprove a SIP provision if it does not meet all 
applicable CAA requirements. Section 110(l) provides that the EPA may 
not approve any SIP revision that ``would interfere with . . . any 
other applicable requirement of [the CAA].'' Section 110(k)(5) provides 
that the EPA shall issue a SIP call ``whenever'' the Agency finds an 
existing SIP provision ``substantially inadequate . . . to otherwise 
comply with [the CAA].'' None of the core terms in each of the three 
provisions is defined in the CAA. Thus, whether the ``would interfere 
with'' standard of section 110(l) is per se a ``lower'' standard than 
the ``substantially inadequate'' standard of section 110(k)(5) as 
advocated by the commenters is not clear on the face of the statute, 
and thus the EPA considers these terms ambiguous.
    As explained in detail in the February 2013 proposal, the EPA 
interprets its authority under section 110(k)(5) broadly to include 
authority to require a state to revise an existing SIP provision that 
fails to meet fundamental legal requirements of the CAA.\337\ The 
commenters raise a valid point that section 110(l) and section 
110(k)(5), as well as section 110(k)(3), facially appear to impose 
somewhat different standards. However, the EPA does not agree that the 
proper comparison is necessarily between section 110(k)(5) and section 
110(l) but instead would compare section 110(k)(5) and section 
110(k)(3). Section 110(l) is primarily an ``anti-backsliding'' 
provision, meant to assure that if a state seeks to revise its SIP to 
change existing SIP provisions that the EPA has previously determined 
did meet CAA requirements, then there must be a showing that the 
revision of the existing SIP provisions (e.g., a relaxation of an 
emission limitation) would not interfere with attainment of the NAAQS, 
reasonable further progress or any other requirement of the CAA. By 
contrast, section 110(k)(3) is a more appropriate point of comparison 
because it directs the EPA to approve a SIP provision ``that meets all 
applicable requirements'' of the CAA and section 110(k)(5) authorizes 
the EPA to issue a SIP call for previously approved SIP provisions that 
it later determines do not ``comply with any requirement'' of the CAA.
---------------------------------------------------------------------------

    \337\ See February 2013 proposal, 78 FR 12459 at 12483-88.
---------------------------------------------------------------------------

    Notwithstanding that each of these three statutory provisions 
applies to different stages of the SIP process, all three of them 
explicitly make compliance with the legal requirements of the CAA a 
part of the analysis. At a minimum, the EPA believes that Congress 
intended these three sections, working together, to ensure that SIP 
provisions must meet all applicable legal CAA requirements when they 
are initially approved and to ensure that SIP provisions continue to 
meet CAA requirements over time, allowing for potential amendments to 
the CAA, changes in interpretation of the CAA by the EPA or courts or 
simply changed facts. With respect to compliance with the applicable 
legal requirements of the

[[Page 33942]]

CAA, the EPA does not interpret section 110(k)(5) as setting a per se 
``higher'' standard. Under section 110(l), the EPA is likewise directed 
not to approve a SIP revision that is not consistent with legal 
requirements imposed by the CAA, including those relevant to SIP 
provisions such as section 302(k). Pursuant to section 110(l), the EPA 
would not be authorized to approve a SIP revision that contradicts 
requirements of the CAA; pursuant to section 110(k)(5) the EPA is 
authorized to direct states to correct a SIP provision that it later 
determines does not meet the requirements of the CAA.
    The EPA also disagrees with the commenters' characterization of the 
requirements of section 110(l) and their arguments based on court 
decisions concerning section 110(l). Commenters rely on the decision in 
Ky. Res Council v. EPA to support their argument that section 110(l) 
requires the EPA to disapprove a SIP revision only if it ``would 
interfere'' with a requirement of the CAA, not if it ``could 
interfere'' with such requirements.\338\ From this decision, the 
commenters argue that the EPA is required to conduct a specific 
technical analysis under section 110(l) to determine the specific 
impacts of the revision on attainment and maintenance of the NAAQS and 
argue that by inference this must therefore also be required by section 
110(k)(5). To the extent that court decisions concerning section 110(l) 
are relevant, these court decisions do not support the commenters' 
position.
---------------------------------------------------------------------------

    \338\ See 467 F.3d 986 (6th Cir. 2006).
---------------------------------------------------------------------------

    First, the EPA notes that the commenters mischaracterize section 
110(l) as requiring a particular form or method of analysis to support 
approval or disapproval of a SIP revision. Section 110(l) does not 
contain any such explicit requirement or specifications. The EPA 
interprets section 110(l) only to require an analysis that is 
appropriate for the particular SIP revision at issue, and that analysis 
can take different forms or different levels of complexity depending on 
the facts and circumstances relevant to the SIP revision. Like section 
110(l), the EPA believes that section 110(k)(5) does not specify a 
particular form of analysis necessary to find a SIP provision 
substantially inadequate.
    Second, the commenters mischaracterize the primary decision that 
they rely upon. The court in Ky. Res Council v. EPA expressly discussed 
the fact that section 110(l) does not specify precisely how any such 
analysis should be conducted and deferred to the EPA's reasonable 
interpretation of what form of analysis is appropriate for a given SIP 
revision.\339\ Indeed, the decision stands for the proposition that the 
EPA does not necessarily have to develop an attainment demonstration in 
order to evaluate the impacts of a SIP revision, i.e. ``prove'' whether 
the revision will interfere with attainment, maintenance, reasonable 
further progress or any other requirements of the CAA. Thus, the 
commenters' argument that section 110(k)(5) has to require a specific 
technical analysis of impacts on attainment and maintenance because 
section 110(l) does so is simply in error.
---------------------------------------------------------------------------

    \339\ See 467 F.3d at 995 (rejecting claim that section 110(l) 
required a modeled attainment demonstration to prove that the SIP 
revision would meet applicable CAA requirements).
---------------------------------------------------------------------------

    Third, the section 110(1) cases cited by the commenters did not 
involve SIP revisions in which states sought to change existing SIP 
provisions so that they would fail to meet the specific CAA 
requirements at issue in this action. For example, none of the cases 
involved the EPA's approval of a new automatic exemption for emissions 
during SSM events. Had the state submitted a SIP revision that failed 
to meet applicable requirements of the CAA for SIP provisions, such as 
changing existing SIP emission limitations so that they would 
thereafter include SSM exemptions, then the EPA would have had to 
disapprove them.\340\ The challenged rulemaking actions at issue in the 
cases relied upon by the commenters involved SIP revision changes 
unrelated to the specific legal requirements at issue in this action. 
Accordingly, the EPA's evaluation of those SIP revisions focused upon 
other issues, such as whether the revision would factually result in 
emissions that would interfere with attainment and maintenance of the 
NAAQS, that were relevant to the particular provisions at issue in 
those cases.
---------------------------------------------------------------------------

    \340\ The EPA notes that the one exception to this, of course, 
is the Agency's recent approval of new SIP provisions in Texas that 
created an affirmative defense for malfunctions. As discussed 
elsewhere in this document, however, the EPA has determined that 
such provisions do not meet CAA requirements and is thus issuing a 
SIP call for those provisions.
---------------------------------------------------------------------------

    12. Comments that the EPA is misinterpreting US Magnesium and that 
the decision provides no precedent for this action.
    Comment: A number of industry commenters argued that the EPA's 
reliance on the decision of the Tenth Circuit in US Magnesium, LLP v. 
EPA is misplaced.\341\ According to the commenters, the EPA did not 
correctly interpret the decision and is misapplying it in acting upon 
the Petition. The commenters asserted that the decision provides no 
precedent for this action because it was decided upon issues different 
from those at issue here. Commenters also argued that the court did not 
reach an important issue because the petitioner had failed to comment 
on it, i.e., the argument that the EPA had not defined the term 
``substantially inadequate'' in the rulemaking.\342\
---------------------------------------------------------------------------

    \341\ See 690 F.3d 1157 (10th Cir. 2012).
    \342\ Id., 690 F.3d 1167, n.3.
---------------------------------------------------------------------------

    Response: The EPA disagrees with the commenters on this point. The 
EPA of course acknowledges that the court in US Magnesium did not 
address the full range of issues related to the correct treatment of 
emissions during SSM events in SIP provisions that were raised in the 
Petition, e.g., the court did not need to address the legal basis for 
affirmative defense provisions in SIPs because of the nature of the SIP 
provisions at issue in that case. However, the US Magnesium court 
evaluated many of the same key questions raised in this rulemaking and 
reached decisions that are very relevant to this action.
    First, the US Magnesium court specifically upheld the EPA's SIP 
call action requiring the state to remove or revise a SIP provision 
that included an automatic exemption for emissions from sources during 
``upsets,'' i.e., malfunctions. In doing so, the court was fully aware 
of the reasons why the EPA interprets the CAA to prohibit such 
exemptions, because they violate statutory requirements including 
section 302(k), section 110(a)(2)(A) and (C), and other requirements 
related to attainment and maintenance of the NAAQS. The court explained 
at length the EPA's reasoning about why the SIP provisions were 
inconsistent with CAA requirements for SIP provisions.\343\
---------------------------------------------------------------------------

    \343\ Id., 690 F.3d at 1159-63.
---------------------------------------------------------------------------

    Second, the court specifically upheld the EPA's SIP call action 
requiring the state to revise its SIP to remove or revise another SIP 
provision that could be interpreted to give state personnel the 
authority to determine unilaterally whether excess emissions from 
sources are a violation of the applicable emission limitation and 
thereby preclude any enforcement action by the EPA or citizens.
    Third, the court also upheld the EPA's authority to issue a SIP 
call requiring a state ``to clarify language in the SIP that could be 
read to violate the CAA, when a court has not yet interpreted the 
language in that way.'' Indeed, the court opined that ``in light of the 
potential conflicts'' between competing interpretations of the SIP 
provision,

[[Page 33943]]

``seeking revision of the SIP was prudent, not arbitrary or 
capricious.'' \344\
---------------------------------------------------------------------------

    \344\ Id., 690 F.3d at 1170.
---------------------------------------------------------------------------

    Fourth, the court explicitly upheld the EPA's reasonable 
interpretation of section 110(k)(5) to authorize a SIP call when a 
state's SIP provision is substantially inadequate to meet applicable 
legal requirements, without making ``specific factual findings'' that 
the deficient provision resulted in a NAAQS violation. The EPA 
interpreted the CAA to allow a SIP call if the Agency ``determined that 
aspects of the SIP undermine the fundamental integrity of the CAA's SIP 
process and structure, regardless of whether or not the EPA could point 
to specific instances where the SIP allowed violations of the NAAQS.'' 
The US Magnesium court explicitly agreed that section 110(k)(5) 
authorizes issuance of a SIP call ``where the EPA determines that a SIP 
is no longer consistent with the EPA's understanding of the CAA.'' 
\345\
---------------------------------------------------------------------------

    \345\ Id., 690 F.3d at 1168.
---------------------------------------------------------------------------

    Fifth, the court rejected claims that the EPA was requiring states 
to comply with the SSM Policy guidance rather than the CAA 
requirements, and the court noted that the Agency had undertaken 
notice-and-comment rulemaking to evaluate whether the SIP provisions at 
issue were consistent with CAA requirements.\346\
---------------------------------------------------------------------------

    \346\ Id., 690 F.3d at 1168.
---------------------------------------------------------------------------

    Sixth, the court rejected the claim that the EPA was interpreting 
the requirements of the CAA incorrectly because the EPA is in the 
process of bringing its own NSPS and NESHAP regulations into line with 
CAA requirements for emission limitations, in accordance with the 
Sierra Club v. Johnson decision.\347\ The court noted that the EPA is 
now correcting SSM exemptions in its own regulations, and thus its 
prior interpretation of the CAA, rejected by the court in Sierra Club 
v. Johnson, did not make the SIP call to Utah arbitrary and 
capricious.\348\
---------------------------------------------------------------------------

    \347\ Id., 690 F.3d at 1169.
    \348\ Id., 690 F.3d at 1170.
---------------------------------------------------------------------------

    On these and many other issues, the EPA believes that the court's 
decision in US Magnesium provides an important and correct precedent 
for the Agency's interpretation of the CAA in this action. The 
commenters' apparent disagreement with the court does not mean that the 
decision is not relevant to this action. The commenters specifically 
argued that the US Magnesium court did not reach the issue of whether 
the EPA had ``defined'' the term ``substantial inadequacy'' in the 
challenged rulemaking because the petitioner had not raised this point 
in comments. The EPA does not necessarily agree that ``defining'' the 
full contours of the term is a necessary step for a SIP call, but 
regardless of that fact the Agency did explain its interpretation of 
the term ``substantial inadequacy'' with respect to the SIP provisions 
at issue in the February 2013 proposal, the SNPR and this final action.
    13. Comments that EPA has to evaluate a SIP ``as a whole'' to have 
the authority to issue a SIP call.
    Comment: Many state and industry commenters argued that the EPA 
cannot evaluate individual SIP provisions in isolation and that the 
Agency is required to evaluate the entire SIP and any related permit 
requirements in order to determine if a specific SIP provision is 
substantially inadequate. In particular, some commenters argued that 
the EPA was wrong to focus upon the exemptions in SIP emission 
limitations for emissions during SSM events without considering whether 
some other requirement of the SIP or of a permit might operate to 
override or otherwise modify the exemptions. Many of the commenters 
asserted that other ``general duty'' clause requirements, elsewhere in 
other SIP provisions or in permits for individual sources, make the SSM 
exemptions in SIP emission limitations valid under the CAA.\349\ These 
other requirements were often general duty-type standards that require 
sources to minimize emissions, to exercise good engineering judgment or 
not to cause a violation of the NAAQS. The implication of the 
commenters' arguments is that such general-duty requirements legitimize 
an SSM exemption in a SIP emission limitation--even if they are not 
explicitly a component of the SIP provision, if they are not 
incorporated by reference in the SIP provision and if they are not 
adequate to meet the applicable substantive requirements for that type 
of SIP provision.
---------------------------------------------------------------------------

    \349\ The EPA notes that other commenters on the February 2013 
proposal made similar arguments with respect to affirmative defense 
provisions in their SIPs, asserting that other SIP provisions or 
terms in permits provided additional criteria that would have made 
the affirmative defense provisions at issue consistent with the 
EPA's interpretation of the CAA in the 1999 SSM Guidance. See, e.g., 
Comment from Virginia Department of Environmental Quality at 1-2, in 
the rulemaking docket at EPA-HQ-OAR-2012-0322-0613. Because the EPA 
no longer interprets the CAA to allow any affirmative defense 
provisions, these comments are not germane.
---------------------------------------------------------------------------

    Response: The EPA disagrees with the basic premise of the 
commenters that the EPA cannot issue a SIP call directing a state to 
correct a facially deficient SIP provision without first determining 
whether an unrelated and not cross-referenced provision of the SIP or 
of a permit might potentially apply in such a way as to correct the 
deficiency. As explained in section VII.A.3 of this document, the EPA 
believes that all SIP provisions must meet applicable requirements of 
the CAA, including the requirement that they apply continuously to 
affected sources. In reviewing the specific SIP provisions identified 
in the Petition, the EPA determined that many of the provisions include 
explicit automatic or discretionary exemptions for emissions during SSM 
events, whether as a component of an emission limitation or as a 
provision that operates to override the otherwise applicable emission 
limitation. Based on the EPA's review of these provisions, neither did 
they apply ``continuously'' as required by section 302(k) nor did they 
include cross-references to any other limitations that applied during 
such exempt periods to potentially provide continuous limitations. To 
the extent that the SIP of a state contained any other requirements 
that applied during such periods, that fact was not plain on the face 
of the SIP provision. If the EPA was unable to ascertain what, if 
anything, applied during these explicitly exempt periods, then the 
Agency concludes that regulated entities, members of and the public, 
and the courts will have the same problem. The EPA has authority under 
section 110(k)(5) to issue a SIP call requiring a state to clarify a 
SIP provision that is ambiguous or unclear such that the provision can 
lead to misunderstanding and thereby interfere with effective 
enforcement.\350\
---------------------------------------------------------------------------

    \350\ See US Magnesium, LLC v. EPA, 690 F.3d 1157, 1169 (10th 
Cir. 2012).
---------------------------------------------------------------------------

    To the extent that an affected state believes that the EPA has 
overlooked another valid provision of the SIP that would cure the 
substantial inadequacy that the Agency has identified in this action, 
the state may seek to correct the deficient SIP provision by properly 
revising it to remove the impermissible exemption or affirmative 
defense and replacing it with the requirements of the other SIP 
provision or by including a clear cross-reference that clarifies the 
applicability of such provision as a component of the specific emission 
limitation at issue. The state should make this revision in such a way 
that the SIP emission limitation is clear on its face as to what the 
affected sources are required to do during all modes of operation. The 
emission limitation should apply continuously, and what is required by 
the emission limitation under any mode of operation should be

[[Page 33944]]

readily ascertainable by the regulated entities, the regulators and the 
public. The EPA emphasizes, however, that each revised SIP emission 
limitation must meet the substantive requirements applicable to that 
type of provision (e.g., impose RACM/RACT-level controls on sources 
located in nonattainment areas) and must be legally and practically 
enforceable (e.g., have sufficient recordkeeping, reporting and 
monitoring requirements). The revised SIP emission limitation must be 
consistent with all applicable CAA requirements.
    14. Comments that the EPA inappropriately is ``using guidance'' as 
a basis for the SIP call action.
    Comment: State and industry commenters asserted that the EPA is 
relying on guidance as the basis for issuing this SIP call action and 
argued that the EPA cannot issue a SIP call based on guidance. The 
commenters argued that the EPA guidance provided in the SSM Policy is 
not binding and that states thus have the flexibility to develop SIP 
provisions that are not in conformance with EPA guidance. Some 
commenters claimed that if the EPA wishes to make the interpretations 
of the CAA in its SSM Policy binding upon states, then it must do so 
through a notice-and-comment rulemaking and must codify those 
requirements in binding regulations in the CFR. The commenters argued 
that states should not be subject to a SIP call for existing provisions 
in their SIPs on the basis that they do not conform to guidance in the 
SSM Policy. Some commenters acknowledged that the EPA is providing 
notice and comment on its SSM Policy through this action, but still 
they contended that the EPA's interpretation of the CAA is not binding 
upon states unless the Agency codifies its updated SSM Policy in 
regulations in the CFR.
    Response: The EPA disagrees with arguments that the Agency has 
acted inappropriately by relying on its interpretations of the CAA set 
forth in the SSM Policy in issuing this SIP call. As explained in the 
February 2013 proposal, the SSM Policy is merely guidance. It is 
correct that guidance documents are nonbinding. However, the guidance 
provides the EPA's recommendations concerning how best to interpret the 
statutory requirements of the CAA that are binding. Moreover, the EPA's 
interpretation of the CAA in the SSM Policy can become binding once the 
Agency adopts and applies that interpretation through notice-and-
comment rulemaking. The EPA is issuing this SIP call action through 
notice-and-comment rulemaking and has specifically taken comment on its 
interpretations of the CAA as they apply to the specific SIP provisions 
at issue in this action. Thus, the EPA is requiring the affected states 
to comply with the requirements of the CAA, not with the SSM Policy 
guidance itself.\351\
---------------------------------------------------------------------------

    \351\ The EPA's reliance on interpretations of the CAA in the 
SSM Policy through notice-and-comment rulemakings has previously 
been upheld by several courts. See, e.g., US Magnesium, LLC v. EPA, 
690 F.3d 1157, 1168 (10th Cir. 2012) (upholding the EPA's SIP call 
to Utah for existing SIP provisions); Mich. Dep't of Envtl. Quality 
v. Browner, 230 F.3d 181 (6th Cir. 2000) (upholding the EPA's 
disapproval of a SIP submission).
---------------------------------------------------------------------------

    The EPA also disagrees with commenters that in order to rely on its 
interpretation of the CAA in the SSM Policy, the EPA must first issue 
regulatory provisions applicable to SIP provisions. There is no such 
general obligation for the EPA to codify its interpretations of the CAA 
in regulatory text. Unless Congress has specifically directed the EPA 
to promulgate regulations for a particular purpose, the EPA has 
authority and discretion to promulgate such regulations as it deems 
necessary or helpful in accordance with its authority under section 
301. With respect to issues concerning proper treatment of excess 
emissions during SSM events in SIP provisions, the EPA has historically 
proceeded by issuance of guidance documents. In this action, the EPA is 
undergoing notice-and-comment rulemaking to update and revise its 
guidance and to apply that guidance to specific existing SIP 
provisions. Thus, the EPA is not required to promulgate specific 
implementing regulations as a precondition to making a finding of 
substantial inadequacy to address existing deficient SIP provisions.
    15. Comments that the EPA's redesignation and approval of a 
maintenance plan for an area in a state with a SIP that has provisions 
at issue in the SIP call establishes that all provisions in the SIP 
meet CAA requirements.
    Comment: Commenters argued that the ``EPA's allegations that SSM 
provisions could threaten the NAAQS is contradicted by'' the fact that 
the ``EPA has consistently approved re-designation requests and 
attainment and maintenance plans, notwithstanding SSM provisions.'' 
According to these commenters, ``[t]he fact that EPA has already 
approved numerous re-designation requests . . . indicates that EPA has 
already (and in many cases, very recently) admitted that the [State 
SIPs are] fully approved, sufficient to achieve the NAAQS, and fully 
enforceable.'' The commenters argued that the appropriate time for the 
EPA to have addressed any issues concerning deficient SIP provisions 
applicable to emissions during SSM events was ``in the context of its 
review and approval of [maintenance] plans.'' Because the EPA has been 
approving maintenance plans for areas in states subject to this SIP 
call action, the commenters believed, this ``is evidence that the 
Agency has not viewed SSM-related emissions as a threat to attainment 
or maintenance of the NAAQS.'' In essence, these commenters argued that 
the EPA's redesignation of any area in any of the states at issue in 
this rulemaking indicates that the SIPs of these states fully meet all 
CAA requirements and that there are no deficiencies whatsoever in the 
SIPs of these states.
    Response: The EPA disagrees with the commenters' premise that the 
Agency's approval of redesignation requests and maintenance plans for 
certain nonattainment areas, notwithstanding the presence of 
impermissible provisions related to emissions during SSM events that 
may have been present in the SIP for those areas, is evidence that the 
EPA does not view SSM-related emissions as a threat to attainment or 
maintenance of the NAAQS. Contrary to the theory of the commenters, the 
EPA's redesignation of an area to attainment does not mean that the SIP 
for the state in question fully meets each and every requirement of the 
CAA.
    The CAA sets forth the general criteria for redesignation of an 
area from nonattainment to attainment in section 107(d)(3)(E). These 
criteria include a determination by the EPA that the area has attained 
the relevant standard (section 107(d)(3)(E)(i)) and that the EPA has 
fully approved the applicable implementation plan for the area for 
purposes of redesignation (section 107(d)(3)(E)(ii) and (v)). The EPA 
must also determine that the improvement in air quality in the area is 
due to reductions that are permanent and enforceable (section 
107(d)(3)(E)(iii)) and that the EPA has fully approved a maintenance 
plan for the area under section 175A (section 107(d)(3)(E)(iv)).
    For purposes of redesignation, the EPA has long held that SIP 
requirements that are not linked with a particular nonattainment area's 
designation and classification, including certain section 110 
requirements, are not ``applicable'' for purposes of evaluating 
compliance with the specific redesignation criteria in CAA sections 
107(d)(3)(E)(ii) and (v).\352\ The EPA maintains this

[[Page 33945]]

interpretation because these requirements remain applicable after an 
area is redesignated to attainment. For at least the past 15 years, the 
EPA has applied this interpretation with respect to requirements to 
which a state will continue to be subject after the area is 
redesignated.\353\ Courts reviewing the EPA's interpretation of the 
term ``applicable'' in section 107(d)(3) in the context of requirements 
applicable for redesignation have generally agreed with the 
Agency.\354\
---------------------------------------------------------------------------

    \352\ See, e.g., ``Approval and Promulgation of Implementation 
Plans and Designation of Areas for Air Quality Planning Purposes; 
State of Arizona; Redesignation of the Phoenix-Mesa Nonattainment 
Area to Attainment for the 1997 8-Hour Ozone Standard; Proposed 
rule,'' 79 FR 16734 at 16739 n.22 (March 26, 2014).
    \353\ See, e.g., 73 FR 22307 at 22312-13 (April 25, 2008) 
(proposed redesignation of San Joaquin Valley; the EPA concluded 
that section 110(a)(2)(D) transport requirements are not applicable 
under section 110(d)(3)(E)(v) because they ``continue to apply to a 
state regardless of the designation of any one particular area in 
the state''); 62 FR 24826 at 24829-30 (May 7, 1997) (redesignation 
of Reading, Pennsylvania, Area; the EPA concluded that the 
additional controls required by section 184 were not ``applicable'' 
for purposes of section 107(d)(3)(E) because ``they remain in force 
regardless of the area's redesignation status'').
    \354\ See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); Wall 
v. EPA, 265 F.3d 426, 438 (6th Cir. 2001). But see Sierra Club v. 
EPA, Nos. 12-3169, 12-3182, 12-3420 (6th Cir. Mar. 18, 2015), 
petition for reh'g en banc filed.
---------------------------------------------------------------------------

    The EPA therefore approves redesignation requests in many instances 
without passing judgment on every part of a state's existing SIP, if it 
finds those parts of the SIP are not ``applicable'' for purposes of 
section 107(d)(3). For example, the EPA recently approved Arizona's 
request to redesignate the Phoenix-Mesa 1997 8-hour ozone nonattainment 
area and its accompanying maintenance plan, while recognizing that 
Arizona's SIP may contain affirmative defense provisions that are not 
consistent with CAA requirements.\355\ In that case, the EPA explicitly 
noted that approval of the redesignation of the Phoenix-Mesa 
nonattainment area did not relieve Arizona or Maricopa County of its 
obligation to remove the affirmative defense provisions from the SIP, 
if the EPA was to take later action to require correction of the 
Arizona SIP with respect to those provisions.\356\
---------------------------------------------------------------------------

    \355\ 79 FR 55645 (September 17, 2014).
    \356\ Id. at 55648. The EPA notes that it has included the 
deficient SIP provisions that include the affirmative defenses in 
this action, thereby illustrating that it can take action to address 
a SIP deficiency separately from the redesignation action, where 
appropriate.
---------------------------------------------------------------------------

    The EPA also disagrees with commenters to the extent they suggest 
that the Agency must use the redesignation process to evaluate whether 
any existing SIP provisions are legally deficient. The EPA has other 
statutory mechanisms through which to address existing deficiencies in 
a state's SIP, and courts have agreed that the EPA retains the 
authority to issue a SIP call to a state pursuant to CAA section 
110(k)(5) even after redesignation of a nonattainment area in that 
state.\357\ The EPA recently addressed this issue in the context of 
redesignating the Ohio portion of the Huntington-Ashland (OH-WV-KY) 
nonattainment area to attainment for the PM2.5 NAAQS.\358\ 
In response to comments challenging the proposed redesignation due to 
the presence of certain SSM provisions in the Ohio SIP, the EPA 
concluded that the provisions at issue did not provide a basis for 
disapproving the redesignation request.\359\ In so concluding, the EPA 
noted that the SSM provisions and related SIP limitations at issue in 
that state were already approved into the SIP and thus ``permanent and 
enforceable'' for the purposes of meeting section 107(d)(3)(E)(iii) and 
that the Agency has other statutory mechanisms for addressing any 
problems associated with the SSM provisions.\360\ The EPA emphasizes 
that the redesignation of areas to attainment does not relieve states 
of the responsibility to remove legally deficient SIP provisions either 
independently or pursuant to a SIP call. To the contrary, the EPA 
maintains that it may determine that deficient provisions such as 
exemptions or affirmative defense provisions applicable to SSM events 
are contrary to CAA requirements and take action to require correction 
of those provisions even after an area is redesignated to attainment 
for a specific NAAQS. This interpretation is consistent with prior 
redesignation actions.
---------------------------------------------------------------------------

    \357\ See Southwestern Pennsylvania Growth Alliance v. EPA, 114 
F.3d 984 (6th Cir. 1998) (Redesignation of Cleveland-Akron-Lorain 
area determined valid even though the Agency subsequently proposed a 
SIP call to require Ohio and other states to revise their SIPs to 
mitigate ozone transport to other states).
    \358\ See 77 FR 76883 (December 31, 2012).
    \359\ Id. at 76891-92.
    \360\ The EPA notes that the provisions at issue in the 
redesignation action are included in this SIP call, thus 
illustrating that the Agency can address these deficient provisions 
in a context other than a redesignation request.
---------------------------------------------------------------------------

    In some cases, the EPA has stated that the presence of illegal SSM 
provisions does constitute grounds for denying a redesignation request. 
For example, the EPA issued a proposed disapproval of Utah's 
redesignation requests for Salt Lake County, Utah County and Ogden City 
PM10 nonattainment areas.\361\ However, the specific basis 
for the proposed disapproval in that action, which was one of many SIP 
deficiencies identified by EPA, was the state's inclusion in the 
submission of new provisions not previously in the SIP that would have 
provided blanket exemptions from compliance with emission standards 
during SSM events. Those SSM exemptions were not in the previously 
approved SIP, and the EPA declined to approve them in connection with 
the redesignation request because such provisions are inconsistent with 
CAA requirements. In most redesignation actions, states have not sought 
to create new SIP provisions that are inconsistent with CAA 
requirements as part of their redesignation requests or maintenance 
plans.
---------------------------------------------------------------------------

    \361\ 74 FR 62717 (December 1, 2009).
---------------------------------------------------------------------------

    Finally, the EPA disagrees with commenters that approval of a 
maintenance plan for any area has the result of precluding the Agency 
from later finding that certain SIP provisions are substantially 
inadequate under the CAA on the basis that those provisions may 
interfere with attainment or maintenance of the NAAQS or fail to meet 
any other legal requirement of the CAA. The approval of a state's 
redesignation request and maintenance plan for a particular NAAQS is 
not the conclusion of the state's and the EPA's responsibilities under 
the CAA but rather is one step in the process Congress established for 
identifying and addressing the nation's air quality problems on a 
continuing basis. The redesignation process allows states with 
nonattainment areas that have attained the relevant NAAQS to provide 
the EPA with a demonstration of the control measures that will keep the 
area in attainment for 10 years, with the caveat that the suite of 
measures may be revisited if necessary and must be revisited with a 
second maintenance plan for the 10 years following the initial 10-year 
maintenance period.
    Moreover, it is clear from the structure of section 175A 
maintenance plans that Congress understood that the EPA's approval of a 
maintenance plan is not a guarantee of future attainment air quality in 
a nonattainment area. Rather, Congress foresaw that violations of the 
NAAQS could occur following a redesignation of an area to attainment 
and therefore required section 175A maintenance plans to include 
contingency measures that a state could implement quickly in response 
to a violation of a standard. The notion that the EPA's approval of a 
maintenance plan must be the last word with regard to the contents of a 
state's SIP simply does not comport with the framework Congress 
established in the CAA for redesignations. The EPA has continuing 
authority and responsibility to assure that a state's SIP meets CAA

[[Page 33946]]

requirements, even after approving a redesignation request for a 
particular NAAQS.
    In conclusion, the EPA is not required to reevaluate the validity 
of all previously approved SIP provisions as part of a redesignation. 
The existence of provisions such as impermissible exemptions and 
affirmative defenses applicable during SSM events in an approved SIP 
does not preclude the EPA's determination that emission reductions that 
have provided for attainment and that will provide for maintenance of a 
NAAQS in a nonattainment area are ``permanent and enforceable,'' as 
those terms are meant in section 107(d)(3), or that the state has met 
all applicable requirements under section 110 and part D relevant for 
the purposes of redesignation. Finally, if the EPA separately 
determines that the state's SIP is deficient after the redesignation of 
the area to attainment, the Agency can issue a SIP call requiring a 
corrective SIP revision. Redesignation of areas to attainment in no way 
relieves states of their continuing responsibilities to remove 
deficient SIP provisions from their SIPs in the event of a SIP call.
    16. Comments that in issuing a SIP call the EPA is ``dictating'' to 
states how to regulate their sources and taking away their discretion 
to adopt appropriate control measures of their own choosing in 
developing a SIP.
    Comment: Several commenters claimed that the EPA's SIP call action 
removes discretion that states would otherwise have under the CAA. 
Commenters claimed that the action has the effect of unlawfully 
directing states to impose a particular control measure by requiring 
the state to regulate all periods of operation for any source it 
chooses to regulate. Because the alternative emission limitations and 
work practice standards that the EPA asserts are necessary under the 
statutory definition of ``emissions limitation'' are not real options 
in some cases, the commenters claimed, the EPA's proposal is the type 
of mandate that the court in the Virginia decision found to have 
violated the CAA.\362\ Other commenters also cited to the Virginia 
decision, as well as citing to the U.S. Supreme Court's decision in 
Train v. NRDC, in which the Court held that ``so long as the ultimate 
effect of a State's choice of emissions limitations is compliance with 
the national standards, the State is at liberty to adopt whatever mix 
of emissions limitations it deems best suited to its particular 
situation.\363\ The commenters concluded that the EPA cannot prescribe 
the specific terms of SIP provisions applicable to SSM events absent 
evidence that the provisions undermine the NAAQS or are otherwise 
inconsistent with the Act.
---------------------------------------------------------------------------

    \362\ 108 F.3d at 1410.
    \363\ 421 U.S. 60, 79 (1975).
---------------------------------------------------------------------------

    Commenters claimed that states are provided substantial discretion 
under the Act in how to develop SIPs and that the EPA's SIP call action 
is inconsistent with this long-recognized discretion because it limits 
the states to one option: ``Eliminate any consideration of unavoidable 
emissions during planned startups and shutdowns and adopt only an 
extremely limited affirmative defense for unavoidable emissions during 
a malfunction.'' The commenters claimed that other options available to 
states include ``justifying existing provisions, adopting alternative 
numeric emission limitations, work practice standards, additional 
operational limitations, or revising existing numeric emission 
limitations and/or their associated averaging times to create a 
sufficient compliance margin for unavoidable SSM emissions.''
    The commenters further asserted that the EPA's February 2013 
proposal contained inconsistent statements about how the Agency expects 
states to respond to the SIP call. For example, according to one 
commenter, the EPA states in one place that startup and shutdown 
emissions above otherwise applicable limits must be considered a 
violation yet elsewhere discusses the fact that states can adopt 
alternative emission limitations for startup and shutdown. The 
commenter also asserted that the EPA recommended that states could 
elect to adopt the an approach to emissions during startup and shutdown 
like that of the EPA's recent MATS rule but that the EPA then failed to 
explain that the MATS rule contains ``exemptions'' for emissions during 
startup and shutdown that apply so long as the source meets the general 
work practice standards in the rule. This commenter claimed that the 
EPA's own approach is inconsistent with statements in the February 2013 
proposal that states should treat all startups and shutdowns as 
``normal operations.''
    Response: The EPA disagrees with the commenter's claims that the 
SIP call violates the structure of ``cooperative federalism'' that 
Congress enacted for the SIP program in the CAA. Under this structure, 
the EPA establishes NAAQS and reviews state plans to ensure that they 
meet the requirements of the CAA. States take primary responsibility 
for developing plans to attain and maintain the NAAQS, but the EPA is 
required to step in if states fail to adopt plans that meet the 
statutory requirements. As the court in Virginia recognized, Congress 
gave states discretion in choosing the ``mix of controls'' necessary to 
attain and maintain the NAAQS. See also Train v. NRDC, 421 U.S. 60, 79, 
95 (1975). The U.S. Supreme Court first recognized this program of 
cooperative federalism in Train, and the Court stated:

    The Act gives the Agency no authority to question the wisdom of 
a State's choices of emissions limitations if they are part of a 
plan which satisfies the standards of Sec.  110(a)(2) . . . [S]o 
long as the ultimate effect of a State's choice of emissions 
limitations is compliance with the national standards, the State is 
at liberty to adopt whatever mix of emissions limitations it deems 
best suited to its particular situation.

The issue in that case concerned whether changes to requirements that 
would occur before the area was required to attain the NAAQS were 
variances that should be addressed pursuant to the provision governing 
SIP revisions or were ``postponements'' that must be addressed under 
section 110(f) of the CAA of 1970, which contained prescriptive 
criteria. The court concluded that the EPA reasonably interpreted 
section 110(f) not to restrict a state's choice of the mix of control 
measures needed to attain the NAAQS and that revisions to SIPs that 
would not impact attainment of the NAAQS by the attainment date were 
not subject to the limits of section 110(f). While the court recognized 
that states had discretion in determining the appropriate emissions 
limitations, it also recognized that the SIP must meet the standards of 
section 110(a)(2). In Virginia, the issue was whether at the request of 
the Ozone Transport Commission the EPA could mandate that states adopt 
specific motor vehicle emission standards more stringent than those 
mandated by CAA sections 177 and 202 for regulating emissions from 
motor vehicles.
    As the EPA has consistently explained in its SSM Policy, the Agency 
does not believe that exemptions from compliance with any applicable 
SIP emission limitation requirements during periods of SSM are 
consistent with the obligation of states in SIPs, including the 
requirements to demonstrate that plans will attain and maintain the 
NAAQS, protect PSD increments and improve visibility. If a source is 
free from any obligation during periods of SSM, there is nothing 
restraining those emissions and such emissions could cause or 
contribute to an exceedance or violation of the NAAQS. Moreover, 
neither the state nor citizens would have authority to take enforcement

[[Page 33947]]

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

[[Page 33948]]

states must meet in SIPS are section 110(a)(2)(C), requiring a 
permitting program applicable to sources in areas designated 
attainment, and section 110(a)(2)(D)(i)(II), requiring SIP provisions 
to prevent interference with protection of air quality in areas 
designated attainment in other states. Part C, in turn, imposes 
additional requirements on states with respect to prevention of 
significant deterioration of air quality in areas designated 
attainment. Although the EPA agrees that the CAA distinguishes between, 
and imposes different requirements upon, areas designated attainment 
versus nonattainment, there is no indication that the statute 
distinguishes between the basic requirements for emission limitations 
in these areas, including that they be continuous.
    Section 110(a)(2)(A) requires states to include ``emission 
limitations'' in their SIPs ``as may be necessary or appropriate to 
meet applicable requirements of'' the CAA. The EPA notes that the 
commenters have raised other arguments concerning the precise meeting 
of ``necessary or appropriate'' (see section VII.A.3 of this document), 
but in this context the Agency believes that because states are 
required to have SIPs that provide for ``maintenance'' of the NAAQS it 
is clear that the general requirements for emission limitations in SIPs 
are not limited to areas designated nonattainment. Section 110(a)(2)(A) 
contains no language distinguishing between emission limitations 
applicable in attainment areas and emission limitations applicable in 
nonattainment areas. Significantly, the definition of the term 
``emission limitation'' in section 302(k) likewise makes no distinction 
between requirements applicable to sources in attainment areas versus 
nonattainment areas. The EPA sees no basis for interpreting the term 
``emission limitation'' differently for attainment areas and 
nonattainment areas, with respect to whether such emission limitations 
must impose continuous controls on the affected sources. Most 
importantly, section 110(a)(2)(A) does explicitly require that any such 
emission limitations must ``meet the applicable requirements'' of the 
CAA, and the EPA interprets this to include the requirement that 
emission limitations apply continuously, i.e., contain no exemptions 
for emissions during SSM events. This requirement applies equally in 
all areas, including attainment and nonattainment areas.
    The EPA's interpretation of the CAA in the SSM Policy has long 
extended to SIP provisions applicable to attainment areas as well as to 
nonattainment areas. Since at least 1982, the SSM Policy has stated 
that SIP provisions with SSM exemptions are inconsistent with 
requirements of the CAA to provide both for attainment and maintenance 
of the NAAQS, i.e., inconsistent with requirements applicable to both 
nonattainment and attainment areas.\364\ Since at least 1999, the EPA's 
SSM Policy has clearly stated that SIP provisions with SSM exemptions 
are inconsistent with protection of PSD increments in attainment 
areas.\365\ The EPA provided its full statutory analysis with respect 
to SSM exemptions and CAA requirements applicable to areas designated 
attainment in the background memorandum accompanying the February 2013 
proposal.\366\
---------------------------------------------------------------------------

    \364\ See 1982 SSM Guidance, Attachment at 1.
    \365\ See 1999 SSM Guidance at 2.
    \366\ See Memorandum, ``Statutory, Regulatory, and Policy 
Context for this Rulemaking,'' February 4, 2013, in the rulemaking 
docket at EPA-HQ-OAR-2012-0322-0029.
---------------------------------------------------------------------------

    Finally, the EPA disagrees with the commenters' theory that, absent 
proof that the SIP deficiency has caused or will cause a specific 
violation of the NAAQS, the Agency lacks authority to issue a SIP call 
for SIP provisions that apply only in areas attaining the NAAQS. This 
argument is inconsistent with the plain language of section 110(k)(5). 
Section 110(k)(5) authorizes the EPA to issue a SIP call whenever the 
SIP is substantially inadequate to attain or maintain the NAAQS, to 
mitigate interstate transport or to comply with any other CAA 
requirement. The explicit reference to a SIP's being inadequate to 
maintain the NAAQS clearly indicates that the EPA has authority to make 
a finding of substantial inadequacy for a SIP provision applicable to 
attainment areas, not only for a SIP provision applicable to 
nonattainment areas. In addition, section 110(k)(5) explicitly 
authorizes the EPA to issue a SIP call not only in instances related to 
a specific violation of the NAAQS but rather whenever the Agency 
determines that a SIP provision is inadequate to meet requirements 
related to attainment and maintenance of the NAAQS or any other 
applicable requirement of the Act, including when the provision is 
inadequate to meet the fundamental legal requirements applicable to SIP 
provisions. Were the EPA's authority limited to issuing a SIP call only 
in the event an area was violating the NAAQS, section 110(k)(5) would 
not explicitly include requirements related to ``maintenance'' and 
would not explicitly include the statement ``otherwise comply with any 
requirement of [the CAA].''
    18. Comments that the EPA's initial approval of these deficient 
provisions, or subsequent indirect approval of them through action on 
other SIP submissions, establishes that these provisions meet CAA 
requirements.
    Comment: A number of commenters argued that because the EPA 
initially approved the SIP provisions at issue in this rulemaking, this 
establishes that these provisions meet CAA requirements. Other 
commenters argued that subsequent actions on other SIP submissions in 
effect override the fact that the SIP provisions at issue are legally 
deficient. For example, an industry commenter asserted that there have 
been ``dozens of instances where EPA has reviewed Alabama SIP revision 
submittals'' and the EPA has never indicated ``that it believed these 
rules to be inconsistent with the CAA.'' Other state commenters made 
similar arguments suggesting that the EPA's original approval of these 
provisions, and the fact that the EPA has not previously taken action 
to require states to revise them, indicates that they are not 
deficient.
    Response: The EPA disagrees with these commenters. The fact that 
the EPA once approved a SIP provision does not mean that the SIP 
provision is per se consistent with the CAA, or consistent with the CAA 
notwithstanding any later legal or factual developments. This is 
demonstrated by the very existence of the SIP call provision in section 
110(k)(5), whereby the EPA may find that an ``applicable implementation 
plan for any area is substantially inadequate to attain or maintain the 
relevant [NAAQS] . . . or to otherwise comply with any requirement of'' 
the CAA. This SIP call authority expressly authorizes the EPA to direct 
a state to revise its SIP to remedy any substantial inadequacy, 
including failures to comply with legal requirements of the CAA. By 
definition, when the EPA promulgates a SIP call, this means that the 
Agency has previously approved the provision into the SIP, rightly or 
wrongly. The SIP call provision would be meaningless if a SIP provision 
were considered perpetually consistent with CAA requirements after it 
was originally approved, and merely because of that prior approval as 
commenters suggest. In the February 2013 proposal, the EPA acknowledged 
its own responsibility in approving provisions that were inconsistent 
with CAA requirements.
    The EPA also disagrees with the argument that the Agency's action 
on other intervening SIP submissions from a state over the years since 
the approval

[[Page 33949]]

of the original deficient SIP provision in some way negates the 
original deficiency. The industry commenter pointed to ``dozens of 
instances where EPA reviewed Alabama SIP revision submittals'' as times 
when the EPA should have addressed any SSM-related deficient SIP 
provisions. However, the EPA's approval of other SIP revisions does not 
necessarily entail reexamination and reapproval of every provision in 
the SIP. The EPA often only examines the specific provision the state 
seeks to revise in the SIP submission without reexamining all other 
provisions in the SIP. The EPA sometimes broadens its review if 
commenters bring other concerns to the Agency's attention during the 
rulemaking process that are relevant to the SIP submission under 
evaluation.
    19. Comments that exemptions for excess emissions during exempt SSM 
events would not distort emissions inventories, SIP control measure 
development or modeling, because the EPA's regulations and guidance 
concerning ``rule effectiveness'' adequately account for these 
emissions, and therefore the proposed SIP calls are not needed or 
justified.
    Comment: One commenter argued that provisions allowing exemptions 
or affirmative defenses for excess emissions during startup and 
shutdown are consistent with a state's authority under CAA section 110 
and that this is evidenced by the fact that the EPA has issued guidance 
on ``rule effectiveness'' that plainly takes into account a 
``discount'' factor in a state's demonstration of attainment when it 
chooses to adopt startup/shutdown provisions. This commenter cited the 
EPA's definition of ``rule effectiveness'' at 40 CFR 51.50 and EPA 
guidance on demonstrating attainment of PM2.5 and regional 
haze air quality goals.\367\
---------------------------------------------------------------------------

    \367\ The commenter appears to have been meaning to cite to the 
draft EPA guidance document ``Draft Guidance for Demonstrating 
Attainment of Air Quality Goals for PM2.5 and Regional 
Haze,'' January 2, 2001. This draft guidance on PM2.5 and 
Regional Haze was combined with similar guidance on ozone in the 
final guidance document ``Guidance on the Use of Models and Other 
Analyses for Demonstrating Attainment of Air Quality Goals for 
Ozone, PM2.5, and Regional Haze,'' April 2007, EPA-454/B-
07-002.
---------------------------------------------------------------------------

    Response: The EPA disagrees with the characterization in this 
comment of past EPA guidance and with the conclusion that the fact of 
the existence of EPA guidance on ``rule effectiveness'' would support 
the claim that the CAA provides authority for exemptions or affirmative 
defenses for excess emissions during startup and shutdown. The EPA's 
definition of ``rule effectiveness'' at 40 CFR 51.50 does not refer to 
startup and shutdown; it refers only to ``downtime, upsets, decreases 
in control efficiencies, and other deficiencies in emission 
estimates,'' and once defined the term ``rule effectiveness'' is not 
subsequently used within 40 CFR part 51 in any way that would indicate 
that it is meant to capture the effect of exemptions during startup and 
shutdown. The EPA guidance on demonstrating attainment of 
PM2.5 and regional haze goals cited by the commenter also 
does not address rule effectiveness or excess emissions during startup 
and shutdown. The terms ``startup'' and ``shutdown'' do not appear in 
the attainment demonstration guidance. The EPA did issue a different 
guidance document in 1992 on rule effectiveness,\368\ but that document 
focused only on the preparation of emissions inventories for 1990, not 
on demonstrating attainment of NAAQS or regional haze goals. Moreover, 
the 1992 guidance document addressed ways of estimating actual 1990 
emissions in light of the likelihood of a degree of source 
noncompliance with applicable emission limitations, not on the 
emissions that would be permissible in light of the absence of a 
continuous emission limitation applicable during startup and shutdown. 
The terms ``startup'' and ``shutdown'' do not appear in the 1992 
guidance. In 2005, the EPA replaced the 1992 guidance document on rule 
effectiveness as part of providing guidance for the implementation of 
the 1997 ozone and PM2.5 NAAQS.\369\ Like the 1992 guidance, 
the 2005 guidance associated ``rule effectiveness'' with the issue of 
noncompliance and did not provide any specific advice on quantifying 
emissions that could be legally emitted because of SSM exemptions in 
SIPs. To avoid misunderstanding, the 2005 guidance included a question 
and answer on startup and shutdown emissions to the effect that 
emissions during startup and shutdown should be included in ``actual 
emissions.'' This question and answer included the statement, ``[L]ess 
preferably, [emissions during startup, shutdown, upsets and 
malfunctions] can be accounted for using the rule effectiveness 
adjustment procedures outlined in this guidance.'' However, other than 
in this question and answer, the 2005 guidance does not mention 
emissions during startup and shutdown events; it focuses on issues of 
noncompliance with applicable emission limitations. The fact that the 
1992 guidance document did not intend for ``rule effectiveness'' to 
encompass SIP-exempted emissions during startup and shutdown, and that 
the 2005 guidance also did not, is confirmed by a statement in a more 
recent draft EPA guidance document:
---------------------------------------------------------------------------

    \368\ ``Guidelines for Estimating and Applying Rule 
Effectiveness for Ozone/CO State Implementation Plan Base Year 
Inventories,'' November 1992, EPA-4S2JR-92.010.
    \369\ ``Emissions Inventory Guidance for Implementation of Ozone 
and Particulate Matter National Ambient Air Quality Standards 
(NAAQS) and Regional Haze Regulations,'' Appendix B, August 2005, 
EPA-454/R-05-001.

    In addition to estimating the actual emissions during startup/
shutdown periods, another approach to estimate startup/shutdown 
emissions is to adjust control parameters via the emissions 
calculation parameters of rule effectiveness or primary capture 
efficiency. Using these parameters for startup/shutdown adjustments 
is not their original purpose, but can be a simple way to increase 
the emissions and still have a record of the routine versus startup/
shutdown portions of the emissions. (Emphasis added.) \370\
---------------------------------------------------------------------------

    \370\ ``Draft Emissions Inventory Guidance for Implementation of 
Ozone [and Particulate Matter]* National Ambient Air Quality 
Standards (NAAQS) and Regional Haze Regulations,'' April 11, 2014, 
page 62.

    Furthermore, as explained in the proposals for this action and in 
this document, the EPA believes that it is a fundamental requirement of 
the CAA that SIP emission limitations be continuous, which therefore 
precludes exemptions for excess emissions during startup and shutdown. 
At bottom, although it is true that these guidance documents indicated 
that one less preferable way to account for startup and shutdown 
emissions could be through the rule effectiveness analysis, this does 
not in any way indicate that exemptions from emissions limitations 
would be appropriate for such periods.
    Comment: A commenter argued that the EPA has not shown any 
substantial inadequacy with respect to CAA requirements but that the 
closest the EPA comes to identifying a substantial inadequacy is in the 
EPA's discussion of its concern regarding the impacts of SSM exemptions 
on the development of accurate emissions inventories for air quality 
modeling and other SIP planning. This commenter and another commenter 
in particular noted a passage in the February 2013 proposal that stated 
that emission limitations in SIPs are used to meet various requirements 
for attainment and maintenance of the NAAQS and that all of these uses 
typically assume continuous source compliance with emission 
limitations.\371\ These commenters disagreed with the EPA's statement 
that all of these uses typically assume continuous source compliance 
with

[[Page 33950]]

applicable emission limitations, and the commenters cited several EPA 
guidance documents and statements that, they believe, address SSM and 
ensure that states do not simply assume continuous compliance. These 
commenters in addition cited to footnote 4 of the EPA's 1999 SSM 
Guidance.\372\ The commenters argued that as long as states are 
complying with the EPA's inventory and modeling rules and guidance, SSM 
exemptions and similar applicability provisions have no negative impact 
on SIP planning.
---------------------------------------------------------------------------

    \371\ February 2013 proposal, 78 FR 12459 at 12485.
    \372\ The EPA interprets the citation ``See supra pp. 21-24'' as 
being intended to refer to those pages of ``Guidelines for 
Estimating and Applying Rule Effectiveness for Ozone/CO State 
Implementation Plan Base Year Inventories,'' November 1992, EPA-
4S2JR-92.010, which this commenter did not refer to by title.
---------------------------------------------------------------------------

    Response: The EPA acknowledges that the cited statement in the 
February 2013 proposal, that various types of required analysis used to 
develop SIPs or permits ``typically assume continuous source compliance 
with emission limitations,'' was an oversimplification of a complex 
situation. However, the EPA disagrees with the commenters' assertion 
that the EPA's inventory rules and other guidance are sufficient to 
ensure that SSM exemptions, where they still exist in SIPs, have no 
negative impact on SIP planning. Also, if the EPA were to allow them, 
such exemptions could become more prevalent and have a larger negative 
effect. More importantly, regardless of how SSM exemptions may or may 
not negatively impact things like emissions inventories, as explained 
elsewhere in this document, the EPA believes that it is a fundamental 
requirement of the CAA that SIP emission limitations be continuous, 
which therefore precludes exemptions for excess emissions during SSM 
events.
    Generally, the EPA's guidance and rules do not say that it is 
correct for estimates of source emissions used in SIP development to be 
based on an assumption of continuous compliance with the SIP emission 
limitations even if the SIP contains exemptions for SSM periods. 
Rather, the EPA has generally emphasized that SIPs and permits should 
be based on the best available information on actual emissions, 
including in most cases the effects of known or reasonably 
anticipatable noncompliance with emission limitations that do 
apply.\373\ Because the EPA's longstanding SSM Policy has interpreted 
the Act to prohibit exemptions during SSM events, it has not been a 
focus of EPA guidance to explain to states how to take account of such 
exemptions. As the commenters have pointed out, some aspects of some 
EPA guidance documents have some relationship to the issue of 
accounting for SSM exemptions. Nevertheless, taken together, the EPA's 
guidance does not and cannot ensure that emission estimates used in 
developing SIPs and permits correctly reflect actual emissions in all 
cases in which SSM exemptions still exist in SIPs, particularly for 
sources that, unlike all or most of the sources represented by these 
two commenters, are not subject to continuous emissions monitoring. For 
a source not subject to continuous emissions monitoring, when excess 
emissions during SSM events are exempted by a SIP--whether 
automatically, on a special showing or through director's discretion--
it is much more likely that those emissions would not be quantified and 
reported to the air agency such that they could be accounted for in SIP 
and permit development. For example, when the SIP includes exemptions 
for excess emissions during SSM events, there may be no motive for a 
source to perform a special stack test during a SSM period in which 
there is no applicable emission limitation and possibly no legal basis 
for an air agency to require such a stack test. It would also be 
unusual to find well-documented emission factors for such transient 
operation that could be used in place of source-specific testing.
---------------------------------------------------------------------------

    \373\ New source permitting under the PSD program is an 
exception to the principle that the effects of noncompliance should 
be included in estimates of source emissions. The air quality impact 
analysis for a proposed PSD permit is based on an assumption that 
the source will operate without malfunctions. However, it may be 
necessary in this type of analysis to consider excess emissions that 
are the result of poor maintenance, careless operation or other 
preventable conditions. See 40 CFR part 51, appendix W, section 
8.1.2, footnote a.
---------------------------------------------------------------------------

    As explained in a response provided earlier in this document, the 
EPA guidance documents also cited by these commenters in fact do not 
address how the effect of exemptions in SIPs for excess emissions 
during startup and shutdown can be accounted for in an attainment or 
maintenance demonstration. The cited 1992 ``rule effectiveness'' 
guidance in regard to issues such as noncompliance in the form of non-
operation of control equipment, malfunctions, poor maintenance and 
deterioration of control equipment was meant to address how the issues 
affected emissions in 1990, not in a future year when the NAAQS must be 
attained. The 2005 guidance also did not provide any particular advice 
on how ``rule effectiveness'' concepts could be used to estimate 
emissions during exempt SSM periods. Given that the EPA's longstanding 
SSM Policy has been that exemptions for excess emissions during SSM 
events are not permissible, the EPA had no reason to provide guidance 
on how attainment demonstrations should account for such exemptions.
    The commenters are right to infer that the EPA does believe that 
where exemptions for excess emissions during anticipatable events still 
remain in current SIPs, attainment demonstrations ideally should 
account for them. Indeed, the EPA's guidance has recommended that all 
emissions during startup and shutdown events be included in both 
historical and projected emissions inventories.\374\ However, as long 
as exemptions for excess emissions during SSM events have the effect of 
making such excess emissions not be violations and thus not reportable 
as violations, it will be difficult for air agencies to have confidence 
that they have sufficient knowledge of the magnitude, location and 
timing of such emissions as would be needed to accurately account for 
those emissions in attainment demonstrations, especially for NAAQS with 
averaging periods of one day or less. The EPA has promulgated emissions 
inventory reporting rules, but these rules apply requirements to air 
agencies rather than to the sources that would have actual knowledge of 
startup and shutdown events and emissions. To make a complying 
inventory data submission to the EPA, an air agency does not have to 
obtain from sources information on the magnitude and timing of 
emissions during SSM events for which an exemption applies, and to the 
EPA's knowledge most air agencies do not obtain this information. The 
EPA's emissions inventory rules require the reporting of historical 
annual-total emissions only (and in some areas ``typical'' seasonal 
and/or daily emissions for certain pollutants), not day-to-day 
emissions. Actual emissions during SSM events should be included in 
these annual emissions. While data formats are available from the EPA 
to allow a state to segregate the total annual emissions during SSM 
events

[[Page 33951]]

from annual emissions during other type of operation, to segregate the 
emissions is not a requirement and few states do so. Moreover, the 
EPA's emissions inventory rules require reporting on most sources only 
on an ``every third year'' basis, which means that unless an air agency 
has authority to and does require more information from sources than is 
needed to meet the air agency's reporting obligation to the EPA, the 
air agency will not be in a position to know whether and how, between 
the triennial inventory reports, excess emissions during startup and 
shutdown may be changing due to variations in source operation and 
possibly affecting attainment or maintenance. Thus, the EPA's emissions 
inventory rules provide air agencies only limited leverage in terms of 
ability to obtain detailed information from sources regarding the 
extent to which actual emissions during SSM events may be unreported in 
emissions inventories, due to SIP exemptions. The EPA believes that 
when exemptions for excess emissions during SSM events are removed from 
SIPs, thereby making high emissions during SSM events specifically 
reportable deviations from emission limitations for more sources than 
now report them as such, it will be easier for air agencies to 
understand the timing and magnitude of event-related emissions that can 
affect attainment and maintenance. However, this belief is not the 
basis for this SIP call action, only an expected useful outcome of it.
---------------------------------------------------------------------------

    \374\ For example, see ``Emissions Inventory Guidance for 
Implementation of Ozone and Particulate Matter National Ambient Air 
Quality Standards (NAAQS) and Regional Haze Regulations,'' Appendix 
B, August 2005, EPA-454/R-05-001. A recent draft EPA guidance on the 
preparation of emissions inventories for attainment demonstrations 
recognizes that, in contrast to startup and shutdown emissions, 
emissions during malfunctions are not predictable and do not need to 
be included in projected inventories for the future year of 
attainment. See ``Draft Emissions Inventory Guidance for 
Implementation of Ozone [and Particulate Matter]* National Ambient 
Air Quality Standards (NAAQS) and Regional Haze Regulations,'' April 
11, 2014, page 62.
---------------------------------------------------------------------------

    Footnote 4 of the EPA's 1999 SSM Guidance suggested that ``[s]tates 
may account for [potential worst-case emissions that could occur during 
startup and shutdown] by including them in their routine rule 
effectiveness estimates.'' This statement in the 1999 document's 
footnote may seem at odds with the statement in this response that the 
``rule effectiveness'' concept was not meant to embrace excess 
emissions during startup and shutdown that were allowed because of SIP 
exemptions. However, the footnote is attached to text that addresses 
``worst-case'' emissions that are higher than allowed by the applicable 
SIP, because that text speaks about the required demonstration to 
support a SIP revision containing an affirmative defense for violations 
of applicable SIP emission limitations. Thus, estimates of such worst-
case emissions would reflect the effects of noncompliance, which is 
within the intended scope of the EPA's ``rule effectiveness'' guidance. 
Footnote 4 was not referring to the issue of how to account for the 
effect of SSM exemptions.\375\
---------------------------------------------------------------------------

    \375\ In light of the NRDC v. EPA decision, affirmative defense 
provisions are not allowed in SIPs any longer, so this aspect of the 
1999 SSM Guidance is no longer relevant.
---------------------------------------------------------------------------

    Comment: A number of commenters stated their understanding that the 
EPA has proposed SIP calls as a way of improving air agencies' 
implementation of EPA-specified requirements in emissions inventory or 
modeling, and they stated that if this is the EPA's concern then the 
EPA should address the issue in that context.
    Response: To clarify its position, the EPA explains here that while 
it believes that approvable SIP revisions in response to the proposed 
SIP calls will have the benefit of providing information on actual 
emissions during SSM events that can improve emissions inventories and 
modeling, the availability of this additional information is not the 
basis for the SIP calls that are being finalized. The EPA believes that 
it is a fundamental requirement of the CAA that SIP emission 
limitations be continuous, which therefore precludes exemptions for 
excess emissions during startup and shutdown.
    Comment: An air agency commenter stated that facilities in its 
state are required to submit data on all annual emissions, including 
emissions from startup and shutdown operation (and malfunctions), as 
part of its annual emissions inventory, and that it takes these 
emissions into consideration as part of SIP development.
    Response: The EPA appreciates the efforts of this commenter to 
develop SIPs that account for all emissions. However, these efforts and 
whatever degree of success the commenter enjoys do not change the 
fundamental requirement of the CAA that SIP emission limitations be 
continuous, which therefore precludes exemptions for excess emissions 
during startup and shutdown.
    Comment: A commenter argued that even to the extent SSM emissions 
present some level of uncertainty in model-based air quality 
projections, that uncertainty is small compared to other sources of 
uncertainty in modeling analyses, and so SSM emissions will not have 
any significant impact on attainment demonstrations or any underlying 
air quality modeling analysis.
    Response: In support of this very general statement, the commenter 
provided only its own assessment of its own experience and the similar 
opinion of unnamed permitting agencies. In any case, this SIP call 
action is not based on any EPA determination about how modeling 
uncertainties due to SSM exemptions in SIPs compare to other modeling 
uncertainties.
    20. Comments that exemptions for excess emissions during SSM events 
are not a concern with respect to PSD and protection of PSD increments.
    Comment: Commenters asserted that the EPA has not adequately 
explained the basis for its concerns about the impact of emissions 
during SSM events on PSD increments.
    Response: The EPA disagrees. As explained in detail in the 
background memorandum included in the docket for this rulemaking,\376\ 
CAA section 110(a)(2)(C) requires that a state's SIP must include a PSD 
program to meet CAA requirements for attainment areas.\377\ In 
addition, section 161 explains that ``[e]ach [SIP] shall contain 
emission limitations and such other measures as may be necessary . . . 
to prevent significant deterioration of air quality for such region . . 
. designated . . . as attainment or unclassifiable.'' Specifically, 
each SIP is required to contain measures assuring that certain 
pollutants do not exceed designated maximum allowable increases over 
baseline concentrations.\378\ These maximum allowable increases are 
known as PSD increments. Applicable EPA regulations require states to 
include in their SIPs emission limitations and such other measures as 
may be necessary in attainment areas to assure protection of PSD 
increments.\379\ Authorizing sources in attainment areas to exceed SIP 
emission limitations during SSM events compromises the protection of 
these increments.
---------------------------------------------------------------------------

    \376\ See Memorandum, ``Statutory, Regulatory, and Policy 
Context for this Rulemaking,'' February 4, in the rulemaking docket 
at EPA-HQ-OAR-2012-0322-0029.
    \377\ ``Each implementation plan . . . shall . .ensp;. include a 
program to provide for . . . regulation of the modification and 
construction of any stationary source within the areas covered by 
the plan as necessary to assure that [NAAQS] are achieved, including 
a permit program as required in . . . part C.'' CAA section 
110(a)(2)(C).
    \378\ CAA section 163.
    \379\ See 40 CFR 51.166(c).
---------------------------------------------------------------------------

    The commenters' concerns seem to be focused on PSD permitting for 
individual sources rather than on emission limitations in SIPs. The 
commenters asserted that the EPA already adequately accounts for all 
emissions during SSM events when calculating the baseline and increment 
consumption and expressed concern about the potential for ``double 
counting'' of emissions by counting them both toward the baseline and 
against increment. The EPA agrees that

[[Page 33952]]

emissions should not be double-counted and has regulatory requirements 
in place to ensure that emissions are either attributed to the baseline 
or counted against increment but not both.\380\ Nevertheless, 
permitting agencies base their calculations of both the baseline and 
increment consumption on air quality data representing actual emissions 
from sources.\381\ As explained more fully in the background memorandum 
accompanying the February 2013 proposal, the EPA is concerned that as a 
result of SSM exemptions in SIPs, inventories of actual emissions often 
do not include an accurate accounting of excess emissions that occur 
during SSM events. Moreover, the models used to calculate increment 
consumption typically assume continuous source compliance with 
applicable emission limitations.\382\ Authorizing exceedances of 
emission limitations during SSM events would compromise the accuracy of 
the projections made by these models. Accurate calculations of the 
baseline and increment consumption rely on the correct accounting of 
all emissions, including those occurring during SSM events. Without 
accurate data, the EPA cannot be certain that state agencies are 
calculating baseline or increment consumption correctly or that 
increments in attainment areas are not being exceeded. For the 
foregoing reasons, the EPA is concerned that SSM exemptions in SIPs 
compromise the ability of the PSD program to protect air quality 
increments.
---------------------------------------------------------------------------

    \380\ See 40 CFR 51.166 and 52.21.
    \381\ See CAA section 169(4) (defining baseline concentration); 
40 CFR 51.166(b)(13)(i) (setting forth what is included in baseline 
concentration; 40 CFR 52.21(b)(13)(i) (same). The Federal Register 
document promulgating the revised PSD regulations also explained 
this point. In that document, the EPA explained, ``[B]aseline 
concentrations reflect actual air quality in an area. Increment 
consumption or expansion is directly related to baseline 
concentration. Any emissions not included in the baseline are 
counted against the increment. The complementary relationship 
between the concepts supports using the same approach for 
calculating emissions contributions to each.'' 45 FR 52676, 52718 
(August 7, 1980). ``Actual emissions'' is defined in 40 CFR 
51.166(b)(21)(i) and 52.21(b)(21)(i).
    \382\ See 45 FR 52717 (``increment consumption and expansion 
should be based primarily on actual emissions increases and 
decreases, which can be presumed to be allowable emissions for 
sources subject to source-specific emissions limitations.'').
---------------------------------------------------------------------------

    21. Comments that because ambient air quality has improved over the 
duration of the CAA through various regulatory programs such as the 
Acid Rain Program, this disproves that SIP provisions including 
exemptions for excess emissions during SSM events pose any concerns 
with respect to protection of public health and the environment.
    Comment: Industry commenters claimed that because ambient air 
quality data show that air quality has been consistently improving over 
a period of years, this proves that exemptions for emissions during SSM 
events do not impede the ability of areas to attain and maintain the 
NAAQS. The commenters provided a chart showing percentage reduction in 
emissions of the various NAAQS pollutants ranging from 52 percent 
reduction in NOX between 1980 and 2010 to 83 percent 
reduction in direct PM10 emissions for that same time 
period. The commenters further claimed that a significant portion of 
the recent emissions reductions have been achieved by electric 
utilities. The commenters also provided charts and graphs showing 
reductions in pollutants under the CAA Acid Rain Program. The 
commenters further claimed that the states in which they operate--
Alabama, Florida, Georgia, Mississippi and North Carolina--are meeting 
the NAAQS, with isolated exceptions. The commenters further stated 
that, although the EPA recently has promulgated several new NAAQS, the 
attainment plans for those standards are not yet due, and thus the new 
standards cannot justify the SIP call. The commenters concluded by 
noting that the states' success in achieving the various NAAQS, even as 
the NAAQS have been strengthened, demonstrates that the existing SSM 
exemptions in SIP provisions identified by the EPA do not ``place the 
NAAQS at risk.'' Regarding visibility, the commenters noted that plans 
to show progress in meeting the regional haze goal were due in 2013 and 
that evidence shows that visibility is also improving notwithstanding 
the existing SSM exemptions.
    Response: The EPA agrees that many areas in the U.S. have made 
great strides in improving ambient air quality under the CAA. However, 
excess emissions from sources during SSM events have the potential to 
undermine that progress and are also inconsistent with the requirements 
of the CAA, as discussed elsewhere in the February 2013 proposal and in 
this final action. The EPA notes that the fact that an area has 
attained the NAAQS does not demonstrate that emissions during SSM 
events do not have the potential to undermine attainment or maintenance 
of the NAAQS, interfere with protection of PSD increments or interfere 
with visibility. For certain pollutants, such as lead or 
SO2, a single source could have a single SSM event that 
could cause an exceedance of the NAAQS that would otherwise not have 
occurred. It is through its SIP that a state demonstrates that it has 
in place an air quality management program that will attain and 
maintain the NAAQS on an ongoing basis, and so it is critical that the 
state, through its SIP provisions, can ensure that emissions during 
normal source operation including startup and shutdown events do not 
exceed levels relied on for purposes of developing attainment and 
maintenance plans. Similarly, SIP provisions designed to protect 
visibility must also meet requirements of the CAA, and exemptions for 
emissions during SSM events would likewise have the potential to 
undermine visibility objectives of the CAA. Thus, it is not appropriate 
to exempt emissions during these SSM events from compliance with 
emission limitations in SIPs. As explained in this final action, the 
state has flexibility in choosing how to regulate source during these 
periods of operation, and sources do not necessarily have to be subject 
to the same numerical emissions limitations or the same other control 
requirements during startup and shutdown that apply during other modes 
of operation. However, SIP emission limitations must be continuous, and 
thus sources must be subject to requirements that apply at all times 
including during startup and shutdown.
    22. Comments that the EPA's position that SIP provisions such as 
automatic exemptions for excess emissions during SSM events hinder 
effective enforcement for violations is incorrect, because there have 
been a number of citizen suits brought under the CAA.
    Comment: According to industry commenters, the EPA's argument that 
deficient SIP provisions concerning emissions during SSM events limit 
enforcement of violations of emissions limitations under sections 113 
and 304 is inaccurate, because ``the facts show that SSM provisions do 
not preclude or hinder enforcement of any CAA requirements.'' The 
commenters provided a list of ``recent'' enforcement actions and 
asserted that ``[t]he sheer number of cases demonstrates that the 
existing regulations provide ample opportunity for enforcement.'' The 
commenters cited to litigation brought by citizen groups that the 
commenters asserted has resulted in settlements including ``injunctive 
relief and supplemental environmental projects (``SEPs'') worth tens of 
millions, if not hundreds of millions, of dollars.'' The commenters 
also cited to one example to suggest that ``whereas EPA and/or States 
may use enforcement discretion'' in certain types of cases, ``citizen 
groups do not.''

[[Page 33953]]

    Response: The EPA disagrees with the commenters' logic that the 
mere existence of enforcement actions negates the concern that 
deficient SIP provisions interfere with effective enforcement of SIP 
emission limitations. The EPA believes that deficient SIP provisions 
can interfere with effective enforcement by air agencies, the EPA and 
the public to assure that sources comply with CAA requirements, 
contrary to the fundamental enforcement structure provided in CAA 
sections 113 and 304. For example, automatic or discretionary exemption 
provisions for excess emissions during SSM events by definition 
completely eliminate the possibility of enforcement for what may 
otherwise be clear violations of emissions limitations during those 
times. Affirmative defense provisions purport to alter or eliminate the 
statutory jurisdiction of courts to determine liability or to impose 
remedies for violations. These types of provisions eliminate the 
opportunity to obtain injunctive relief or penalties that may be needed 
to ensure appropriate efforts to design, operate and maintain sources 
so as to prevent and to minimize excess emissions, protect the NAAQS 
and PSD increments and meet other CAA requirements. Similarly, the 
exemption of sources from liability for excess emissions during SSM 
events eliminates incentives to minimize emissions during those times. 
These exemptions thus reduce deterrence of future violations from the 
same sources or other sources during these periods.
    In the February 2013 proposal, the EPA discussed in detail an 
enforcement case that illustrates and supports the Agency's 
position.\383\ In that case, citizen suit plaintiffs sought to bring an 
enforcement action against a source for thousands of self-reported 
exceedances of emission limitations in the source's operating permit. 
The source asserted that those exceedances were not ``violations,'' 
through application of a permit provision that mirrored an underlying 
Georgia SIP provision. The U.S. Court of Appeals for the Eleventh 
Circuit (Eleventh Circuit) ultimately determined that the provision 
created an ``affirmative defense'' for SSM emissions that shielded the 
source from liability for numerous violations. The court noted that 
even if the approved provision in Georgia's SIP was inconsistent with 
the EPA's guidance on the proper treatment of excess emissions during 
SSM events, the defendant could rely on the provision because the EPA 
had not taken action through rulemaking to rectify any 
discrepancy.\384\ In this final action on the Petition, the EPA has 
determined that the specific SIP provision at issue in that case is 
deficient for several reasons. Had that deficient SIP provision not 
been in the SIP at the time of the enforcement action, then the 
provision would not have had any effect on the outcome of the case. 
Instead, the courts would have evaluated the alleged violations and 
imposed any appropriate remedies consistent with the applicable CAA 
provisions, rather than in accordance with the SIP provision that 
imposed the state's enforcement discretion preferences on other parties 
contrary to their rights under the CAA.
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    \383\ See February 2013 proposal, 78 FR 12459 at 12504-05.
    \384\ See Sierra Club v. Georgia Power Co., 443 F.3d 1346 (11th 
Cir. 2006).
---------------------------------------------------------------------------

    As the outcome of this case demonstrates, the mere fact that a 
number of enforcement actions have been filed does not mean that the 
deficient SIP provisions identified by the EPA in this SIP call action 
do not hinder effective enforcement under sections 113 and 304. To the 
contrary, that case illustrates exactly how conduct that might 
otherwise be a clear violation of the applicable SIP emission 
limitations by a source was rendered immune from enforcement through 
the application of a provision that operated to excuse liability for 
violations and potentially allowed unlimited excess emissions during 
SSM events.
    The commenters cited 15 other enforcement cases brought by 
government and citizen groups over a span of 17 years, but the 
commenters do not indicate whether any SIP provisions relevant to 
emissions during SSM events were involved, nor do the commenters 
indicate whether any provisions at issue in this SIP call action were 
involved in any of the enforcement cases it cited.\385\ Even if an 
enforcement action has been initiated, the EPA's fundamental point 
remains: SIP provisions that exempt what would otherwise be a violation 
of SIP emissions limitations can undermine effective enforcement during 
times when the CAA requires continuous compliance with such emissions 
limitations. By interfering with enforcement, such provisions undermine 
the integrity of the SIP process and the rights of parties to seek 
enforcement for violation of SIP emission limitations.
---------------------------------------------------------------------------

    \385\ Even if these cases did all involve SIP provisions 
relevant to SSM events, the sampling of cases cited by the commenter 
still do not prove the commenter's point. The commenter indicated 
that 11 of the 15 cited cases resulted in settlement. The EPA 
presumes that neither party admitted any fault in these settlements 
and it remains unknown whether the court would have found the 
existence of a violation. In addition, because these cases were 
settled, it is unknown whether exemption or affirmative defense 
provisions would have prevented the court from finding liability for 
violation of a CAA emissions limitation that would otherwise have 
applied. In one additional case cited by the commenter, the court 
determined that the defendant successfully asserted an affirmative 
defense to alleged violations of a 6-minute 40-percent opacity 
limit. The outcome of this case evidently supports the EPA's 
concerns about the impacts of such provisions.
---------------------------------------------------------------------------

    A number of commenters on the February 2013 proposal indicated 
that, from their perspective, a primary benefit of automatic or 
discretionary exemptions in SIP provisions applicable to emissions 
during SSM events is to shield sources from liability. Similarly, 
commenters on the SNPR indicated that, from their perspective, a key 
benefit of affirmative defense provisions is to prevent what is in 
their opinion inappropriate enforcement action for violations of SIP 
emission limitations during SSM events. The EPA does not agree that the 
purpose of SIP provisions should be to preclude or impede effective 
enforcement of SIP emission limitations. To the contrary, the potential 
for enforcement for violations of CAA requirements is a key component 
of the enforcement structure of the CAA. To the extent that commenters 
are concerned about inappropriate enforcement actions for conduct that 
is not in violation of CAA requirements, the EPA believes that the 
sources already have the ability to defend against any such invalid 
claims in court.
    23. Comments that the EPA's alleged inclusion of ``exemptions'' or 
``affirmative defenses'' in enforcement consent decrees negates the 
Agency's interpretation of the CAA to prohibit them in SIP provisions.
    Comment: One industry commenter claimed that the EPA has itself 
recently promulgated an exemption for emissions during SSM events. The 
commenter cited an April 1, 2013, settlement agreement in a CAA 
enforcement case against Dominion Energy as an example. According to 
the commenter, this settlement agreement ``provides allowances for 
excess emissions during startup and shutdown'' and ``allows an EGU to 
operate without the ESP when it is not practicable.'' The commenter 
characterized this as the creation of an exemption from the applicable 
emission limitations during startup and shutdown. The commenter further 
alleged that the settlement agreement ``provides for an affirmative 
defense to stipulated penalties for excess emissions occurring during 
start up and shutdown.'' The commenter intended the fact that the EPA 
agrees to this type

[[Page 33954]]

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

[[Page 33955]]

other SIP provisions and the requirements of source operating permits. 
Because these corrections to SIP provisions and permit requirements 
will take time to occur, the commenter asserted that ``a transition 
period of reasonable length far exceeding 48 months will be needed to 
shield industry from enforcement.'' The commenter thus requested that 
the EPA impose such a transition period. In addition, the commenter 
suggested that the EPA should create ``an interim enforcement policy'' 
to shield sources and allow reliance on affirmative defense provisions 
``even after SIPs are corrected until permits reflect those changes.'' 
The commenter posed this request based upon concern that there will be 
industry confusion concerning what requirements apply to individual 
sources until permits are revised to reflect the correction of the 
deficient SIP provisions.
    Response: The EPA agrees with the commenter that it will take time 
for states to make the necessary SIP revisions in response to this SIP 
call, for the EPA to evaluate and act upon those SIP submissions and 
subsequently for states or the Agency to revise operating permits in 
the ordinary course to reflect the corrected state SIPs. As explained 
in the February 2013 proposal, the EPA consciously elected to proceed 
via its SIP call authority under section 110(k)(5) and to provide the 
statutory maximum of 18 months for the submission of corrective SIP 
revisions. The EPA chose this path specifically in order to provide 
states with time to revise their deficient SIP provisions correctly and 
in the manner that they think most appropriate, consistent with CAA 
requirements. The EPA also explicitly acknowledged that during the 
pendency of the SIP revision process, and during the time that it will 
take for permit terms to be revised in the ordinary course, sources 
will remain legally authorized to emit in accordance with current 
permit terms.\386\
---------------------------------------------------------------------------

    \386\ See February 2013 proposal, 78 FR 12459 at 12482.
---------------------------------------------------------------------------

    The EPA is in this final action reiterating that the issuance of 
the SIP call action does not automatically alter any provisions in 
existing operating permits. By design, sources for which emission 
limitations are incorporated in permits will thus have a de facto 
transition period during which they can take steps to assure that they 
will ultimately meet the revised SIP provisions (e.g., by changing 
their equipment or mode of operation to meet an appropriate emission 
limitation that applies during startup and shutdown instead of relying 
on exemptions). Sources subject to permit requirements will thus have 
yet more time (beyond the 18 months allowed for the SIP revision in 
response to this SIP call action) over the permit review cycle to take 
steps to meet revised permit terms reflecting the revised SIP 
provisions. However, the EPA does not agree with the commenter that 
there is a need for a ``transition period'' to ``shield'' sources from 
enforcement. The EPA's objective in this action is to eliminate 
impermissible SIP provisions that exempt emissions during SSM events or 
otherwise interfere with effective enforcement for violations that 
occur during such events. Further delaying the time by which sources 
will be expected to comply with SIP provisions that are consistent with 
CAA requirements is inappropriate. Moreover, the primary purpose of SIP 
provisions is not to shield sources from liability for violations of 
CAA requirements but rather to assure that sources are required to meet 
CAA requirements.
    The EPA shares the commenter's concern that there is the potential 
for confusion on the part of sources or other parties in the interim 
period between the correction of deficient SIP provisions and the 
revision of source operating permits in the ordinary course. However, 
the EPA presumes that most sources required to have a permit, 
especially a title V operating permit, are sufficiently sophisticated 
and aware of their legal rights and responsibilities that the 
possibility for confusion on the part of sources should be very 
limited. Likewise, by making clear in this final action that sources 
will continue to be authorized to operate in accordance with existing 
permit terms until such time as the permits are revised after the 
necessary SIP revision, the EPA anticipates that other parties should 
be on notice of this fact as well. Regardless of the potential for 
confusion by any party, the EPA believes that the legal principle of 
the ``permit shield'' is well known by regulated entities, regulators, 
courts and other interested parties. Accordingly, the EPA is not 
issuing any ``enforcement policy'' in connection with this SIP call 
action.
    26. Comments that a SIP call directing states to eliminate 
exemptions for excess emissions during SSM events is a ``paper 
exercise'' or ``exalts form over substance.''
    Comment: A number of commenters argued that by requiring states to 
correct deficient SIP provisions, such as by requiring removal of 
exemptions for emissions during SSM events, this SIP call action will 
not result in any environmental benefits. For example, state commenters 
claimed that they will not be able simply to revise regulations to 
eliminate startup and shutdown exemptions. Instead, the commenters 
claimed, the states will need to revise the emissions limitations 
completely in order to take into account the EPA's interpretation of 
the CAA that such exemptions are impermissible. The commenters asserted 
that rewriting the state regulations will produce no reduction in 
emissions or improvement in air quality and will merely impose burdens 
upon states to change existing regulations. The implication of the 
commenters' argument is that states will merely revise SIP emission 
limitations to allow the same amount of emissions during SSM events by 
some other means, rather than by establishing emission limitations that 
would encourage sources to be designed, operated and maintained in a 
fashion that would better control those emissions.
    Response: The EPA does not agree with the commenters' assertion 
that revisions to the affected SIP provisions in response to this SIP 
call action will produce no emissions reductions or improvements in air 
quality. The EPA recognizes that some states may elect to develop 
revised emission limitations that provide for alternative numerical 
limitations, control technologies or work practices applicable during 
startup and shutdown that differ from requirements applicable during 
other modes of source operation. Other states may elect to develop 
completely revised emission limitations and elevate the level of the 
numerical emission limitation that applies at all times to account for 
greater emissions during startup and shutdown. However, any such 
revised emission limitations must comply with applicable substantive 
CAA requirements relevant to the type of SIP provision at issue, e.g. 
be RACM and RACT for sources located in nonattainment areas, and must 
meet other requirements for SIP revisions such as in sections 
110(k)(3), 110(l) and 193.
    The EPA believes that revision of the existing deficient SIP 
provisions has the potential to decrease emissions significantly in 
comparison to existing provisions, such as those that authorize 
unlimited emissions during startup and shutdown. Elimination of 
automatic and director's discretion exemptions for emissions during SSM 
events should encourage sources to reduce emissions during startup and 
shutdown and to take steps to avoid malfunctions. Elimination of 
inappropriate enforcement discretion provisions and affirmative defense 
provisions should

[[Page 33956]]

provide increased incentive for sources to be properly designed, 
operated and maintained in order to reduce emissions at all times. The 
EPA also anticipates that revision of older SIP emission limitations in 
light of more recent technological advances in control technology, and 
in light of more recent NAAQS, has the potential to result in 
significant emission control and air quality improvements. In any 
event, by bringing these provisions into compliance with CAA 
requirements, the EPA believes that the resulting SIP provisions will 
support the fundamental integrity of the SIP process and structure, 
both substantively and with respect to enforceability.
    27. Comments that the EPA should make its interpretation of the CAA 
with respect to SSM exemptions applicable only ``prospectively'' and 
not require states to correct existing deficient provisions.
    Comment: Commenters argued that the EPA should not issue a SIP call 
to states for existing SIP provisions and should only require states to 
comply with its interpretations of the CAA ``prospectively.'' One 
commenter argued that the SIP provisions at issue in this SIP call 
action were approved by the EPA in the past and have largely been 
``upheld through several EPA refinements and guidance on SSM since 
then.'' The commenter estimated that the proposed SIP call would 
require states to reestablish emission limits for thousands of existing 
sources or could require existing sources to comply with emission 
limitations that did not originally take into account emissions during 
SSM events. The commenter characterized the EPA's action on the 
Petition as a change of policy with which the EPA should only require 
states to meet prospectively, putting states ``on notice'' that the EPA 
will evaluate future SIP submissions under a different test applicable 
only to new sources going forward.
    Other commenters argued that the EPA cannot require states to 
revise their SIP provisions if this would have the effect of making 
existing sources have to comply with the revised SIP. According to the 
commenters, existing sources should be ``grandfathered'' and should not 
have to change their control strategies or modes of operation to meet 
the revised SIP requirements. The commenters asserted that issuance of 
a SIP call without grandfathering existing sources would 
``retroactively'' require sources to comply with the new SIP provisions 
and ``suddenly'' render sources noncompliant, even though they were in 
compliance with the SIP when they were originally designed, financed 
and built. The commenter claimed that the SIP call would ``change the 
legal structure for commercial transactions that have already taken 
place.'' The thrust of the commenters' argument is that sources, once 
built, should never be subjected to any additional pollution control 
requirements once they are in existence.
    Response: The EPA disagrees with the commenters' suggestions for 
multiple reasons. At the outset, the EPA notes that the only 
significant actual ``change'' in the Agency's SSM Policy in this action 
is the determination that affirmative defense provisions are not 
permissible in SIP provisions. Since the 1999 SSM Guidance, the EPA had 
interpreted the CAA to allow such affirmative defense provisions, so 
long as they were limited only to civil penalties and very narrowly 
drawn consistent with criteria recommended by the Agency. As fully 
explained in section IV of this document, however, the EPA has 
determined in light of the court's decision in NRDC v. EPA that the CAA 
does not permit SIP provisions that operate to alter or eliminate the 
jurisdiction of the courts to determine liability and impose remedies 
in judicial enforcement actions.\387\ In other respects, this action 
primarily consists of the EPA's taking action to assure that SIP 
provisions are consistent with the CAA as the Agency has interpreted it 
in the SSM Policy for many years.
---------------------------------------------------------------------------

    \387\ The EPA notes, however, that many of the affirmative 
defense type provisions at issue in this action were also not 
consistent with the Agency's interpretation of the CAA in the 1999 
SSM Guidance. Thus, even in the absence of the NRDC v. EPA decision, 
these provisions were not consistent with the EPA's prior 
interpretation of the CAA for such provisions.
---------------------------------------------------------------------------

    In addition, it is not appropriate for the EPA to allow states to 
retain deficient SIP provisions that would continue to excuse existing 
sources from complying with the revised SIP provisions in perpetuity or 
that would only require that future sources comply with such revised 
SIP provisions. The commenters advocate for ``grandfathering'' that 
would authorize current sources to continue to operate under existing 
deficient SIP provisions (e.g., with exemptions for SSM emissions or 
with affirmative defense provisions) while requiring only new sources 
to comply with revised SIP provisions that meet CAA requirements. The 
EPA understands the practical reasons why the commenters make this 
suggestion, but such an approach would be grossly unfair both to new 
sources and to the communities affected by emissions from the old 
sources, as well as flatly inconsistent with the requirements of the 
CAA for SIP provisions. Existing sources will not be required to comply 
with the revised SIP emission limitations until the SIPs are updated, 
and if they are subject to permit requirements the sources may continue 
to operate consistent with those permits until the operating permits 
are revised to reflect the revised SIP requirements, but after that 
time current sources will be required to comply. Thus, sources will not 
immediately be in noncompliance with any requirements. The EPA has 
authority to issue a SIP call at any time that it determines a SIP 
provision is substantially inadequate, even if it mistakenly thought 
that the SIP provision was adequate at some time in the past. Sources 
will be on notice of the SIP call and the state's administrative 
process to respond to it long before they will be required to comply 
with a revised SIP provision, and those sources will have ample 
opportunity to participate in the rulemakings establishing new 
requirements at both the state and federal level.
    Finally, the EPA notes, the need for states to establish new 
emission limitations and change permit terms for many sources should 
not be viewed as an unusual occurrence. The need to reexamine existing 
SIP provisions and permit terms applicable to sources in response to 
this SIP call action is comparable to the process that states would 
undertake to update their SIPs as necessary to meet new and evolving 
CAA requirements, including future revised NAAQS. For example, under 
section 110(a)(1) and section 110(a)(2) states are already required to 
reexamine and potentially to revise their SIP provisions whenever the 
EPA promulgates a new or revised NAAQS. States already need to 
reexamine emission limitations required by section 110(a)(2)(A) and 
other relevant sections of the CAA in their SIPs on a regular basis as 
the NAAQS are revised (e.g., the potential need to revisit what is RACT 
for a specific source category with respect to a new NAAQS), as new 
legal requirements are created (e.g. the potential need to address 
interstate transport including compliance with any applicable FIP 
addressing a SIP deficiency with respect to this issue), or as new 
emissions control technologies are developed (e.g., what is RACT for a 
pollutant may evolve with technological developments). Thus, as a 
general matter, states already engage in periodic review of their SIP 
provisions on a regular basis, and the potential need to update the 
emissions limitations applicable to sources and thereafter the

[[Page 33957]]

need to update the permits applicable to those sources is part of that 
process. This SIP call action simply directs the affected states to 
address specific deficiencies in their SIP provisions as part of this 
normal evolutionary process.
    28. Comments that directing states to correct their existing SIP 
provisions will require many sources to change terms of their operating 
permits.
    Comment: A number of commenters opposed the February 2013 proposal 
because of the administrative burden the action would impose on air 
agencies and sources. Commenters asserted that requiring states to 
remove affirmative defense provisions for startup and shutdown from 
SIPs and to develop alternative emission limitations for such periods 
of operation instead is unreasonable. Other commenters argued that 
requiring removal of the deficient SIP provisions would impose enormous 
and time-consuming burdens on permitting authorities and the regulated 
community associated with the development of new or revised emissions 
limitations for startup and shutdown, the revision of SIPs and the 
revision of permits to incorporate such revised emision limitations. 
Another commenter asserted that sources only accepted numerical limits 
in permits with the understanding that they also had the benefit of 
affirmative defenses in the event of exceedances of those numerical 
emission limits during periods of SSM. The commenter thus argued that 
sources would seek to revise the permit limits in order to account for 
the absence of such affirmative defenses.
    Response: The EPA acknowledges the concerns raised by commenters 
concerning the need for air agencies to revise the deficient SIP 
provisions at issue in this action, as well as the need for the EPA to 
review the resulting SIP revisions. The EPA does not agree, however, 
with the commenters' argument that the need for these administrative 
actions is a justification for leaving the deficient provisions 
unaddressed.
    The EPA also acknowledges that the SIP revisions initiated by this 
SIP call action will result in the removal of deficient provisions such 
as automatic and discretionary SSM exemptions, overly broad enforcement 
discretion provisions and affirmative defense provisions. These SIP 
revisions will ultimately need to be reflected in revised operating 
permit terms for sources. This SIP call action will not, however, have 
an automatic impact on any permit terms and conditions, and the 
resource burden to revise permits will be spread over many years. After 
a state makes the necessary revisions to its SIP provisions, any needed 
revisions to operating permits to reflect the revised SIP provisions 
will occur in the ordinary course as the state issues new permits or 
reviews and revises existing permits. For example, in the case of title 
V operating permits, permits with more than 3 years remaining will be 
reopened to add new applicable requirements within 18 months of the 
promulgation of the requirements. If a permit has less than 3 years 
remaining, the new applicable requirement will be added at 
renewal.\388\
---------------------------------------------------------------------------

    \388\ See 40 CFR 70.7(f)(1)(i).
---------------------------------------------------------------------------

IX. What is the EPA's final action for each of the specific SIP 
provisions identified in the Petition or by the EPA?

A. Overview of the EPA's Evaluation of Specific SIP Provisions

    In reviewing the Petitioner's concerns with respect to the specific 
SIP provisions identified in the Petition, the EPA notes that most of 
the provisions relate to a small number of common issues. Many of these 
provisions are as old as the original SIPs that the EPA approved in the 
early 1970s, when the states and the EPA had limited experience in 
evaluating the provisions' adequacy, enforceability and consistency 
with CAA requirements.
    In some instances the EPA does not agree with the Petitioner's 
reading of the provision in question, or with the Petitioner's 
conclusion that the provision is inconsistent with the requirements of 
the CAA. However, given the common issues that arise for multiple 
states in the Petition as well as in the EPA's independent evaluation, 
there are some overarching conceptual points that merit discussion in 
general terms. Thus, this section IX.A of the document provides a 
general discussion of each of the overarching points, including a 
summary of what the EPA proposed to determine with respect to the 
relevant SIP provisions collectively. The EPA received comments on the 
proposed determinations from affected states, the Petitioner and other 
commenters. A detailed discussion of the comments received with the 
EPA's responses is provided in the Response to Comment document 
available in the docket for this rulemaking.
    Sections IX.B through IX.K of this document name the specific SIP 
provisions identified in the Petition or by the EPA, including a 
summary of what the EPA proposed and followed by the EPA's stated final 
action with respect to each SIP provision.
1. Automatic Exemption Provisions
    A significant number of provisions identified by the Petitioner 
pertain to existing SIP provisions that create automatic exemptions for 
excess emissions during periods of SSM. Some of these provisions also 
pertain to exemptions for excess emissions that occur during 
maintenance, load change or other types of normal source operation. 
These provisions typically provide that a source subject to a specific 
SIP emission limitation is exempted from compliance during SSM, so that 
the excess emissions are defined as not violations. Most of these 
provisions are artifacts of the early phases of the SIP program, 
approved before state and EPA regulators recognized the implications of 
such exemptions. Whatever the genesis of these existing SIP provisions, 
however, these automatic exemptions from emission limitations are not 
consistent with the CAA, as the EPA has stated in its SSM Policy since 
at least 1982.
    After evaluating the Petition, the EPA proposed to determine that a 
number of states have existing SIP provisions that create impermissible 
automatic exemptions for excess emissions during malfunctions or during 
startup, shutdown or other types of normal source operation. In those 
instances where the EPA agreed that a SIP provision identified by the 
Petitioner contained such an exemption contrary to the requirements of 
the CAA, the EPA proposed to grant the Petition and accordingly to 
issue a SIP call to the appropriate state.
2. Director's Discretion Exemption Provisions
    Another category of problematic SIP provision identified by the 
Petitioner is exemptions for excess emissions that, while not 
automatic, are exemptions for such emissions granted at the discretion 
of state regulatory personnel. In some cases, the SIP provision in 
question may provide some minimal degree of process and some parameters 
for the granting of such discretionary exemptions, but the typical 
provision at issue allows state personnel to decide unilaterally and 
without meaningful limitations that what would otherwise be a violation 
of the applicable emission limitation is instead exempt. Because the 
state personnel have the authority to decide that the excess emissions 
at issue are not a violation of the applicable emission limitation, 
such a decision would transform the violation into a nonviolation, 
thereby barring enforcement by the EPA or others.

[[Page 33958]]

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

    \389\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
---------------------------------------------------------------------------

    For some of the affirmative defense provisions identified by the 
Petitioner, the EPA in the SNPR reproposed granting of the Petition but 
proposed a revised basis for its proposed findings of inadequacy and 
SIP calls. For other affirmative defense provisions identified

[[Page 33959]]

by the Petitioner, the EPA in the SNPR reversed its prior proposed 
denial of the Petition, and it newly proposed findings of inadequacy 
and SIP calls. Further, for some affirmative defense provisions that 
were not explicitly identified by the Petitioner, the EPA in the SNPR 
proposed findings of inadequacy and SIP calls for additional 
affirmative defense provisions that were not explicitly identified by 
the Petitioner.

B. Affected States in EPA Region I

1. Maine
    As described in section IX.B.1 of the February 2013 proposal, the 
Petitioner first objected to a specific provision in the Maine SIP that 
provides an exemption for certain boilers from otherwise applicable SIP 
visible emission limits during startup and shutdown (06-096-101 Me. 
Code R. Sec.  3). Second, the Petitioner objected to a provision that 
empowers the state to ``exempt emissions occurring during periods of 
unavoidable malfunction or unplanned shutdown from civil penalty under 
section 349, subsection 2'' (06-096-101 Me. Code R. Sec.  4).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to 06-096-101 Me. Code R. 
Sec.  3 and 06-096-101 Me. Code R. Sec.  4.
    Consequently, the EPA proposed to find that 06-096-101 Me. Code R. 
Sec.  3 and 06-096-101 Me. Code R. Sec.  4 are substantially inadequate 
to meet CAA requirements and thus proposed to issue a SIP call with 
respect to these provisions.
    In this final action, the EPA is granting the Petition with respect 
to 06-096-101 Me. Code R. Sec.  3 and 06-096-101 Me. Code R. Sec.  4. 
Accordingly, the EPA is finding that these provisions are substantially 
inadequate to meet CAA requirements and the EPA is thus issuing a SIP 
call to Maine to correct its SIP with respect to these provisions. This 
action is fully consistent with what the EPA proposed in February 2013. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Maine SIP that the EPA received and considered during the development 
of this rulemaking.
2. New Hampshire
    As described in section IX.B.2 of the February 2013 proposal, the 
Petitioner objected to two generally applicable provisions in the New 
Hampshire SIP that allow emissions in excess of otherwise applicable 
SIP emission limitations during ``malfunction or breakdown of any 
component part of the air pollution control equipment.'' The Petitioner 
argued that the challenged provisions provide an automatic exemption 
for excess emissions during the first 48 hours when any component part 
of air pollution control equipment malfunctions (N.H. Code R. Env-A 
902.03) and further provide that ``[t]he director may . . . grant an 
extension of time or a temporary variance'' for excess emissions 
outside of the initial 48-hour time period (N.H. Code R. Env-A 902.04). 
Second, the Petitioner objected to two specific provisions in the New 
Hampshire SIP that provide source-specific exemptions for periods of 
startup for ``any process, manufacturing and service industry'' (N.H. 
Code R. Env-A 1203.05) and for pre-June 1974 asphalt plants during 
startup, provided they are at 60-percent opacity for no more than 3 
minutes (N.H. Code R. Env-A 1207.02).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to N.H. Code R. Env-A 
902.03, N.H. Code R. Env-A 1203.05 and N.H. Code R. Env-A 902.04. Also 
for reasons explained fully in the February 2013 proposal, the EPA 
proposed to deny the Petition with respect to N.H. Code R. Env-A 
1207.02.
    Consequently, the EPA proposed to find that N.H. Code R. Env-A 
902.03, N.H. Code R. Env-A 1203.05 and N.H. Code R. Env-A 902.04 were 
substantially inadequate to meet CAA requirements and thus proposed to 
issue a SIP call with respect to these provisions. Through comments 
submitted on the February 2013 proposal, however, the EPA has 
ascertained that the versions of N.H. Code R. Env-A 902.03 and N.H. 
Code R. Env-A 902.04 identified in the Petition and evaluated in the 
February 2013 proposal are no longer in the state's SIP. In November 
2012, the EPA approved a SIP revision that replaced N.H. Code R. Env-A 
902.03 and N.H. Code R. Env-A 902.04 with a new version of Env-A 900 
that does not contain the deficient provisions identified in the 
February 2013 proposal.\390\ These provisions no longer exist for 
purposes of state or federal law. In addition, the EPA has determined 
that the version of N.H. Code R. Env-A 1203.05 identified in the 
Petition and the February 2013 proposal is no longer in the state's SIP 
as a result of another SIP revision.\391\ Because these three 
provisions are no longer components of the EPA-approved SIP for the 
state of New Hampshire, the Petition is moot with respect to these 
provisions and there is no need for a SIP call with respect to these no 
longer extant provisions.
---------------------------------------------------------------------------

    \390\ See ``Approval and Promulgation of Air Quality 
Implementation Plans; New Hampshire; Reasonably Available Control 
Technology for the 1997 8-Hour Ozone Standard; Direct final rule,'' 
77 FR 66388 (November 5, 2012).
    \391\ See ``Approval and Promulgation of Air Quality 
Implementation Plans; New Hampshire; Reasonably Available Control 
Technology Update To Address Control Techniques Guidelines Issued in 
2006, 2007, and 2008; Direct final rule,'' 77 FR 66921 (November 8, 
2012).
---------------------------------------------------------------------------

    In this final action, the EPA is denying the Petition with respect 
to N.H. Code R. Env-A 902.03, N.H. Code R. Env-A 902.04, N.H. Code R. 
Env-A 1203.05 and N.H. Code R. Env-A 1207.02. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the New Hampshire SIP 
that the EPA received and considered during the development of this 
rulemaking.
3. Rhode Island
    As described in section IX.B.3 of the February 2013 proposal, the 
Petitioner objected to a generally applicable provision in the Rhode 
Island SIP that allows for a case-by-case petition procedure whereby a 
source can obtain a variance from state personnel under R.I. Gen. Laws 
Sec.  23-23-15 to continue to operate during a malfunction of its 
control equipment that lasts more than 24 hours, if the source 
demonstrates that enforcement would constitute undue hardship without a 
corresponding benefit (25-4-13 R.I. Code R. Sec.  16.2).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to 25-4-13 R.I. Code R. 
Sec.  16.2.
    Consequently, the EPA proposed to find that 25-4-13 R.I. Code R. 
Sec.  16.2 is substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to 25-4-13 R.I. Code R. Sec.  16.2. Accordingly, the EPA is finding 
that this provision is substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
this provision. This action is fully consistent with what the EPA 
proposed in February 2013. Please refer to the Response to Comment 
document available in the docket for this rulemaking concerning any 
comments specific to the Rhode Island SIP that the EPA received and 
considered during the development of this rulemaking.

[[Page 33960]]

C. Affected State in EPA Region II

New Jersey
    As described in section IX.C.1 of the February 2013 proposal, the 
Petitioner objected to two specific provisions in the New Jersey SIP 
that allow for automatic exemptions for excess emissions during 
emergency situations. The Petitioner objected to the first provision 
because it provides industrial process units that have the potential to 
emit sulfur compounds an exemption from the otherwise applicable sulfur 
emission limitations where ``[t]he discharge from any stack or chimney 
[has] the sole function of relieving pressure of gas, vapor or liquid 
under abnormal emergency conditions'' (N.J. Admin. Code 7:27-
7.2(k)(2)). The Petitioner objected to the second provision because it 
provides electric generating units (EGUs) an exemption from the 
otherwise applicable NOX emission limitations when the unit 
is operating at ``emergency capacity,'' also known as a ``MEG alert,'' 
which is statutorily defined as a period in which one or more EGUs is 
operating at emergency capacity at the direction of the load dispatcher 
in order to prevent or mitigate voltage reductions or interruptions in 
electric service, or both (N.J. Admin. Code 7:27-19.1).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to N.J. Admin. Code 7:27-
7.2(k)(2). Also for reasons explained fully in the February 2013 
proposal, the EPA proposed to deny the Petition with respect to N.J. 
Admin. Code 7:27-19.1.
    Consequently, the EPA proposed to find that N.J. Admin. Code 7:27-
7.2(k)(2) is substantially inadequate to meet CAA requirements and thus 
proposed to issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to N.J. Admin. Code 7:27-7.2(k)(2) and denying the Petition with 
respect to N.J. Admin. Code 7:27-19.1. Accordingly, the EPA is finding 
that the provision in N.J. Admin. Code 7:27-7.2(k)(2) is substantially 
inadequate to meet CAA requirements and the EPA is thus issuing a SIP 
call with respect to this provision. This action is fully consistent 
with what the EPA proposed in February 2013. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the New Jersey SIP that 
the EPA received and considered during the development of this 
rulemaking.

D. Affected States in EPA Region III

1. Delaware
    As described in section IX.D.1 of the February 2013 proposal, the 
Petitioner objected to seven provisions in the Delaware SIP that 
provide exemptions during startup and shutdown from the otherwise 
applicable SIP emission limitations. The seven source-specific and 
pollutant-specific provisions that provide exemptions during periods of 
startup and shutdown are: 7-1100-1104 Del. Code Regs Sec.  1.5 
(Particulate Emissions from Fuel Burning Equipment); 7-1100-1105 Del. 
Code Regs Sec.  1.7 (Particulate Emissions from Industrial Process 
Operations); 7-1100-1108 Del. Code Regs Sec.  1.2 (Sulfur Dioxide 
Emissions from Fuel Burning Equipment); 7-1100-1109 Del. Code Regs 
Sec.  1.4 (Emissions of Sulfur Compounds From Industrial Operations); 
7-1100-1114 Del. Code Regs Sec.  1.3 (Visible Emissions); 7-1100-1124 
Del. Code Regs Sec.  1.4 (Control of Volatile Organic Compound 
Emissions); and 7-1100-1142 Del. Code Regs Sec.  2.3.5 (Specific 
Emission Control Requirements).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to 7-1100-1104 Del. Code 
Regs Sec.  1.5, 7-1100-1105 Del. Code Regs Sec.  1.7, 7-1100-1108 Del. 
Code Regs Sec.  1.2, 7-1100-1109 Del. Code Regs Sec.  1.4, 7-1100-1114 
Del. Code Regs Sec.  1.3, 7-1100-1124 Del. Code Regs Sec.  1.4 and 7-
1100-1142 Del. Code Regs Sec.  2.3.5.
    Consequently, the EPA proposed to find that 7-1100-1104 Del. Code 
Regs Sec.  1.5, 7-1100-1105 Del. Code Regs Sec.  1.7, 7-1100-1108 Del. 
Code Regs Sec.  1.2, 7-1100-1109 Del. Code Regs Sec.  1.4, 7-1100-1114 
Del. Code Regs Sec.  1.3, 7-1100-1124 Del. Code Regs Sec.  1.4 and 7-
1100-1142 Del. Code Regs Sec.  2.3.5 are substantially inadequate to 
meet CAA requirements and thus proposed to issue a SIP call with 
respect to these provisions.
    In this final action, the EPA is granting the Petition with respect 
to 7-1100-1104 Del. Code Regs Sec.  1.5, 7-1100-1105 Del. Code Regs 
Sec.  1.7, 7-1100-1108 Del. Code Regs Sec.  1.2, 7-1100-1109 Del. Code 
Regs Sec.  1.4, 7-1100-1114 Del. Code Regs Sec.  1.3, 7-1100-1124 Del. 
Code Regs Sec.  1.4 and 7-1100-1142 Del. Code Regs Sec.  2.3.1.6 
(updated to Sec.  2.3.1.6 from earlier identification as Sec.  2.3.5). 
Accordingly, the EPA is finding that these provisions are substantially 
inadequate to meet CAA requirements and the EPA is thus issuing a SIP 
call with respect to these provisions.
2. District of Columbia
    As described in section IX.D.2 of the February 2013 proposal, the 
Petitioner objected to five provisions in the District of Columbia (DC) 
SIP as being inconsistent with the CAA and the EPA's SSM Policy. The 
Petitioner first objected to a generally applicable provision in the DC 
SIP that allows for discretionary exemptions during periods of 
maintenance or malfunction (D.C. Mun. Regs. tit. 20 Sec.  107.3). 
Secondly, the Petitioner objected to the alternative limitations on 
stationary sources for visible emissions during periods of ``start-up, 
cleaning, soot blowing, adjustment of combustion controls, or 
malfunction,'' (D.C. Mun. Regs. tit. 20 Sec.  606.1) and, for fuel-
burning equipment placed in initial operation before January 1977, 
alternative limits for visible emissions during startup and shutdown 
(D.C. Mun. Regs. tit. 20 Sec.  606.2). The Petitioner also objected to 
the exemption from emission limitations for emergency standby engines 
(D.C. Mun. Regs. tit. 20 Sec.  805.1(c)(2)). Finally, the Petitioner 
objected to the provision in the DC SIP that provides an affirmative 
defense for violations of visible emission limitations during 
``unavoidable malfunction'' (D.C. Mun. Regs. tit. 20 Sec.  606.4).
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to D.C. Mun. Regs. tit. 20 
Sec.  107.3 and D.C. Mun. Regs. tit. 20 Sec. Sec.  606.1 and 606.2. 
Also for reasons explained in the February 2013 proposal, the EPA 
proposed to deny the Petition with respect to D.C. Mun. Regs. tit. 20 
Sec.  805.1(c)(2). Also for reasons explained in the February 2013 
proposal, the EPA proposed to grant the petition with respect to D.C. 
Mun. Regs. tit. 20 Sec.  606.4 on the basis that it was not a 
permissible affirmative defense provision consistent with the 
requirements of the CAA as interpreted in the EPA's SSM Policy at the 
time.
    Subsequently, for reasons explained in the SNPR, the EPA reproposed 
granting of the Petition with respect to the affirmative defense 
provision in D.C. Mun. Regs. tit. 20 Sec.  606.4, but it proposed to 
revise the basis for the finding of substantial inadequacy and the SIP 
call for this provision.
    Consequently, the EPA proposed to find that D.C. Mun. Regs. tit. 20 
Sec.  107.3, D.C. Mun. Regs. tit. 20 Sec. Sec.  606.1 and 606.2 and 
D.C. Mun. Regs. tit. 20 Sec.  606.4 are substantially inadequate to 
meet CAA requirements and thus proposed to issue a SIP call with 
respect to these provisions.

[[Page 33961]]

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

[[Page 33962]]

7-10.4 allows state officials the discretion to establish alternative 
visible emissions standards during startup and shutdown upon 
application.
---------------------------------------------------------------------------

    \392\ As explained in the February 2013 proposal, the Petitioner 
specifically focused on concern with W. Va. Code R. Sec.  45-2-10.1, 
but the same issue affects W. Va. Code R. Sec.  45-2-10.2, and so 
the EPA similarly proposed to issue a SIP call with respect to the 
latter provision. See 78 FR 12459 at 12500, n.111. W. Va. Code R. 
Sec.  45-2-10.2 is an alternative limit that applies during periods 
of maintenance. In the February 2013 proposal, the EPA noted that 
this provision was inconsistent with the EPA's SSM Policy 
interpreting the CAA because it was an alternative limit that 
specifically applied during periods of maintenance. Although the EPA 
originally contemplated that an alternative emission limitation 
could appropriately apply only during startup or shutdown, the EPA 
recognizes in section VII.B of this document that it may be 
appropriate for an air agency to establish alternative emission 
limitations that apply during modes of source operation other than 
during startup and shutdown, but any such alternative emission 
limitations should be developed using the same criteria that the EPA 
recommends for those applicable during startup and shutdown. The 
alternative emission limitation applicable during maintenance does 
not appear to have been developed using the recommended criteria for 
such alternative emission limitations. In addition, the EPA finds 
that this provision, like W. Va. Code R. Sec.  45-2-10.1, is also 
deficient because it allows for discretionary exemptions from 
otherwise applicable SIP emission limitations. As noted in the 
proposal, such provisions that authorize director's discretion 
exemptions are impermissible in SIPs.
---------------------------------------------------------------------------

    Subsequently, for reasons explained fully in the SNPR, the EPA 
identified one affirmative defense provision in the West Virginia SIP 
in W. Va. Code R. Sec.  45-2-9.4 that was not identified by the 
Petitioner, and the EPA proposed to make a finding of substantial 
inadequacy and to issue a SIP call for this provision.
    Consequently, the EPA proposed to find that W. Va. Code R. Sec.  
45-2-9.1, W. Va. Code R. Sec.  45-7-10.3, W. Va. Code R. Sec.  45-40-
100.8, W. Va. Code R. Sec.  45-2-10.1, W. Va. Code R. Sec.  45-3-7.1, 
W. Va. Code R. Sec.  45-5-13.1, W. Va. Code R. Sec.  45-6-8.2, W. Va. 
Code R. Sec.  45-7-9.1, W. Va. Code R. Sec.  45-10-9.1, W. Va. Code R. 
Sec.  45-21-9.3, W. Va. Code R. Sec.  45-3-3.2 and W. Va. Code R. Sec.  
45-7-10.4, which are provisions identified by the Petitioner, and W. 
Va. Code R. Sec.  45-2-10.2 and W. Va. Code R. Sec.  45-2-9.4, which 
are provisions identified by the EPA, are substantially inadequate to 
meet CAA requirements and thus proposed to issue a SIP call with 
respect to these provisions.
    In this final action, the EPA is granting the Petition with respect 
to the West Virginia SIP provisions identified by the Petitioner. 
Accordingly, the EPA is finding that the provisions in W. Va. Code R. 
Sec.  45-2-9.1, W. Va. Code R. Sec.  45-7-10.3, W. Va. Code R. Sec.  
45-40-100.8, W. Va. Code R. Sec.  45-2-10.1, W. Va. Code R. Sec.  45-3-
7.1, W. Va. Code R. Sec.  45-5-13.1, W. Va. Code R. Sec.  45-6-8.2, W. 
Va. Code R. Sec.  45-7-9.1, W. Va. Code R. Sec.  45-10-9.1, W. Va. Code 
R. Sec.  45-21-9.3, W. Va. Code R. Sec.  45-3-3.2 and W. Va. Code R. 
Sec.  45-7-10.4, which are provisions identified by the Petitioner, and 
W. Va. Code R. Sec.  45-2-10.2 and W. Va. Code R. Sec.  45-2-9.4, which 
are provisions identified by the EPA, are substantially inadequate to 
meet CAA requirements. The EPA is thus issuing a SIP call to West 
Virginia to correct its SIP with respect to these provisions. This 
action is fully consistent with what the EPA proposed in February 2013 
as revised in the SNPR. Please refer to the Response to Comment 
document available in the docket for this rulemaking concerning any 
comments specific to the West Virginia SIP that the EPA received and 
considered during the development of this rulemaking.

E. Affected States and Local Jurisdictions in EPA Region IV

1. Alabama
    As described in section IX.E.1 of the February 2013 proposal, the 
Petitioner objected to two generally applicable provisions in the 
Alabama SIP that allow for discretionary exemptions during startup, 
shutdown or load change (Ala Admin Code Rule 335-3-14-.03(1)(h)(1)), 
and during emergencies (Ala Admin Code Rule 335-3-14-.03(1)(h)(2)).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Ala Admin Code Rule 335-
3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-14-.03(1)(h)(2).
    Consequently, the EPA proposed to find that Ala Admin Code Rule 
335-3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-14-.03(1)(h)(2) are 
substantially inadequate to meet CAA requirements and thus proposed to 
issue a SIP call with respect to these provisions.
    In this final action, the EPA is granting the Petition with respect 
to Ala Admin Code Rule 335-3-14-.03(1)(h)(1) and Ala Admin Code Rule 
335-3-14-.03(1)(h)(2). Accordingly, the EPA is finding that these 
provisions are substantially inadequate to meet CAA requirements and 
the EPA is thus issuing a SIP call with respect to these provision. 
This action is fully consistent with what the EPA proposed in February 
2013. Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Alabama SIP that the EPA received and considered during the development 
of this rulemaking.
2. Florida
    As described in section IX.E.2 of the February 2013 proposal, the 
Petitioner objected to three specific provisions in the Florida SIP 
that allow for generally applicable automatic exemptions for excess 
emissions during SSM (Fla. Admin. Code Ann Rule 62-210.700(1)), for 
fossil fuel steam generators during startup and shutdown (Fla. Admin. 
Code Ann Rule 62-210.700(2)), and for such sources during boiler 
cleaning and load change (Fla. Admin. Code Ann Rule 62-
210.700(3)).\393\ After objecting to the three provisions that create 
the exemptions, the Petitioner noted that the related provision in Fla. 
Admin. Code Ann Rule 62-210.700(4) reduces the potential scope of the 
exemptions in the other three provisions if the excess emissions at 
issue are caused entirely or in part by things such as poor maintenance 
but that it does not eliminate the impermissible exemptions.
---------------------------------------------------------------------------

    \393\ The EPA notes that in the February 2013 proposal, it 
incorrectly cited Fla. Admin. Code Ann Rule 52.201.700 when it 
intended to cite Rule 52.210.700. The transposition of numbers was a 
typographical error. Commenters on the proposal correctly recognized 
that the EPA intended to instead refer to Fla. Admin. Code Ann Rule 
52.210.700. See, e.g., comment letter received from the Florida 
Department of Environmental Protection, May 13, 2013, in the 
rulemaking docket at EPA-HQ-OAR-2012-0322-0878.
---------------------------------------------------------------------------

    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Fla. Admin. Code Ann 
Rule 62-210.700(1), Fla. Admin. Code Ann Rule 62-210.700(2), Fla. 
Admin. Code Ann Rule 62-210.700(3) and Fla. Admin. Code Ann Rule 62-
210.700(4).
    Consequently, the EPA proposed to find that Fla. Admin. Code Ann 
Rule 62-210.700(1), Fla. Admin. Code Ann Rule 62-210.700(2), Fla. 
Admin. Code Ann Rule 62-210.700(3) and Fla. Admin. Code Ann Rule 62-
210.700(4) are substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call with respect to these provisions.
    In this final action, the EPA is granting the Petition with respect 
to Fla. Admin. Code Ann Rule 62-210.700(1), Fla. Admin. Code Ann Rule 
62-210.700(2), Fla. Admin. Code Ann Rule 62-210.700(3) and Fla. Admin. 
Code Ann Rule 62-210.700(4). Accordingly, the EPA is finding that these 
provisions are substantially inadequate to meet CAA requirements and 
the EPA is thus issuing a SIP call with respect to these provisions. 
This action is fully consistent with what the EPA proposed in February 
2013. Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Florida SIP that the EPA received and considered during the development 
of this rulemaking.
3. Georgia
    As described in section IX.E.3 of the February 2013 proposal, the 
Petitioner objected to a provision in the Georgia SIP that provides for 
exemptions for excess emissions during SSM under certain circumstances 
(Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7)). The Petitioner 
acknowledged that this provision of the Georgia SIP includes some 
conditions for when sources may be entitled to seek the exemption under 
state law, such as when the source has

[[Page 33963]]

used ``best operational practices'' to minimize emissions during the 
SSM event.
    First, the Petitioner objected because the provision creates an 
exemption from the applicable emission limitations by providing that 
the excess emissions ``shall be allowed'' subject to certain 
conditions. Second, the Petitioner argued that although the provision 
provides some ``substantive criteria,'' the provision does not meet the 
criteria the EPA recommended at the time for an affirmative defense 
provision consistent with the requirements of the CAA in the EPA's SSM 
Policy. Third, the Petitioner asserted that the provision is not a 
permissible ``enforcement discretion'' provision applicable only to 
state personnel, because it ``is susceptible to interpretation as an 
enforcement exemption, precluding EPA and citizen enforcement as well 
as state enforcement.''
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Ga. Comp. R. & Regs. 
391-3-1-.02(2)(a)(7). Also for reasons explained in the February 2013 
proposal, the EPA proposed to grant the Petition with respect to this 
provision on the basis that it was not a permissible affirmative 
defense provision consistent with the requirements of the CAA and the 
EPA's recommendations in the EPA's SSM Policy at the time.
    Subsequently, for reasons explained in the SNPR, the EPA reproposed 
granting of the Petition with respect to Ga. Comp. R. & Regs. 391-3-
1-.02(2)(a)(7), but it proposed to revise the basis for the finding of 
substantial inadequacy and the SIP call for this provision.
    Consequently, the EPA proposed to find that Ga. Comp. R. & Regs. 
391-3-1-.02(2)(a)(7) is substantially inadequate to meet CAA 
requirements and thus proposed to issue a SIP call with respect to this 
provision.
    In this final action, the EPA is granting the Petition with respect 
to Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7). Accordingly, the EPA is 
finding that this provision is substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
this provision. This action is fully consistent with what the EPA 
proposed in February 2013 as revised in the SNPR. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Georgia SIP that the 
EPA received and considered during the development of this rulemaking.
4. Kentucky
    As described in section IX.E.4 of the February 2013 proposal, the 
Petitioner objected to a generally applicable provision that allows 
discretionary exemptions from otherwise applicable SIP emission 
limitations in Kentucky's SIP (401 KAR 50:055 Sec.  1(1)).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to 401 KAR 50:055 Sec.  
1(1).
    Consequently, the EPA proposed to find that 401 KAR 50:055 Sec.  
1(1) is substantially inadequate to meet CAA requirements and thus 
proposed to issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to 401 KAR 50:055 Sec.  1(1). Accordingly, the EPA is finding that this 
provision is substantially inadequate to meet CAA requirements and the 
EPA is thus issuing a SIP call with respect to this provision. This 
action is fully consistent with what the EPA proposed in February 2013. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Kentucky SIP that the EPA received and considered during the 
development of this rulemaking.
5. Kentucky: Jefferson County
    As described in section IX.E.5 of the February 2013 proposal, the 
Petitioner objected to a generally applicable provision in the 
Jefferson County Air Regulations 1.07 because it provided for 
discretionary exemptions from compliance with emission limitations 
during SSM. The provision required different demonstrations for 
exemptions for excess emissions during startup and shutdown (Regulation 
1.07 Sec.  3), malfunction (Regulation 1.07 Sec.  4 and Sec.  7) and 
emergency (Regulation 1.07 Sec.  5 and Sec.  7). Second, the Petitioner 
objected to the affirmative defense for emergencies in Jefferson County 
Air Regulations 1.07.
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to provisions in the 
Jefferson County Air Regulations 1.07.
    Subsequently, for reasons explained fully in the SNPR, the EPA 
reversed its prior proposed granting of the Petition with respect to 
Jefferson County Air Regulations 1.07. For Jefferson County, Kentucky, 
the provisions for which the EPA proposed in February 2013 to grant the 
Petition were subsequently removed from the SIP. Thus, in the SNPR, the 
EPA proposed instead to deny the Petition.\394\ As explained in the 
SNPR, the state of Kentucky has revised the SIP provisions applicable 
to Jefferson County and eliminated the SIP inadequacies identified in 
the February 2013 proposal document. The EPA has already approved the 
necessary SIP revisions.\395\ Accordingly, the EPA's final action on 
the Petition does not include a finding of substantial inadequacy and 
SIP call for Jefferson County, Kentucky.
---------------------------------------------------------------------------

    \394\ See SNPR, 79 FR 55919 at 55925.
    \395\ See Approval and Promulgation of Implementation Plans; 
Kentucky; Approval of Revisions to the Jefferson County Portion of 
the Kentucky SIP; Emissions During Startups, Shutdowns, and 
Malfunctions, 79 FR 33101 (June 10, 2014).
---------------------------------------------------------------------------

    In this final action, the EPA is denying the Petition with respect 
to Jefferson County Air Regulations 1.07. This action is fully 
consistent with what the EPA proposed in February 2013 as revised in 
the SNPR. Please refer to the Response to Comment document available in 
the docket for this rulemaking concerning any comments specific to the 
Kentucky SIP that the EPA received and considered during the 
development of this rulemaking.
6. Mississippi
    As described in section IX.E.6 of the February 2013 proposal, the 
Petitioner objected to two generally applicable provisions in the 
Mississippi SIP that allow for affirmative defenses for violations of 
otherwise applicable SIP emission limitations during periods of upset, 
i.e., malfunctions (11-1-2 Miss. Code R. Sec.  10.1) and unavoidable 
maintenance (11-1-2 Miss. Code R. Sec.  10.3). First, the Petitioner 
objected to both of these provisions based on its assertion that the 
CAA allows no affirmative defense provisions in SIPs. Second, the 
Petitioner asserted that even if affirmative defense provisions were 
permissible under the CAA, the affirmative defenses in these provisions 
``fall far short of the EPA policy at the time.'' The Petitioner also 
objected to a generally applicable provision that provides an exemption 
from otherwise applicable SIP emission limitations during startup and 
shutdown (11-1-2 Miss. Code R. Sec.  10.2).
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to 11-1-2 Miss. Code R. 
Sec.  10.1 and 11-1-2 Miss. Code R. Sec.  10.3. Also for reasons 
explained in the February 2013 proposal, the EPA proposed to grant the 
petition with respect to these provisions on the basis that they were 
not appropriate as an affirmative defense provisions because they were

[[Page 33964]]

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

[[Page 33965]]

10. Tennessee
    As described in section IX.E.10 of the February 2013 proposal, the 
Petitioner objected to three provisions in the Tennessee SIP. First, 
the Petitioner objected to two provisions that authorize a state 
official to decide whether to ``excuse or proceed upon'' (Tenn. Comp. 
R. & Regs. 1200-3-20-.07(1)) violations of otherwise applicable SIP 
emission limitations that occur during ``malfunctions, startups, and 
shutdowns'' (Tenn. Comp. R. & Regs. 1200-3-20-.07(3)). Second, the 
Petitioner objected to a provision that excludes excess visible 
emissions from the requirement that the state automatically issue a 
notice of violation for all excess emissions (Tenn. Comp. R. & Regs. 
1200-3-5-.02(1)). This provision states that ``due allowance may be 
made for visible emissions in excess of that permitted in this chapter 
which are necessary or unavoidable due to routine startup and shutdown 
conditions.''
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Tenn. Comp. R. & Regs. 
1200-3-20-.07(1), Tenn. Comp. R. & Regs. 1200-3-20-.07(3) and Tenn. 
Comp. R. & Regs. 1200-3-5-.02(1).
    Consequently, the EPA proposed to find that Tenn. Comp. R. & Regs. 
1200-3-20-.07(1), Tenn. Comp. R. & Regs. 1200-3-20-.07(3) and Tenn. 
Comp. R. & Regs. 1200-3-5-.02(1) are substantially inadequate to meet 
CAA requirements and thus proposed to issue a SIP call with respect to 
these provisions.
    In this final action, the EPA is granting the Petition with respect 
to Tenn. Comp. R. & Regs. 1200-3-20-.07(1), Tenn. Comp. R. & Regs. 
1200-3-20-.07(3) and Tenn. Comp. R. & Regs. 1200-3-5-.02(1). 
Accordingly, the EPA is finding that these provisions are substantially 
inadequate to meet CAA requirements and the EPA is thus issuing a SIP 
call with respect to these provisions. This action is fully consistent 
with what the EPA proposed in February 2013. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Tennessee SIP that 
the EPA received and considered during the development of this 
rulemaking.
11. Tennessee: Knox County
    As described in section IX.E.11 of the February 2013 proposal, the 
Petitioner objected to a provision in the Knox County portion of the 
Tennessee SIP that bars evidence of a violation of SIP emission 
limitations from being used in a citizen enforcement action (Knox 
County Regulation 32.1(C)). The provision specifies that ``[a] 
determination that there has been a violation of these regulations or 
orders issued pursuant thereto shall not be used in any law suit 
brought by any private citizen.''
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Knox County Regulation 
32.1(C). For instance, the regulation was inconsistent with 
requirements related to credible evidence.
    Consequently, the EPA proposed to find that Knox County Regulation 
32.1(C) is substantially inadequate to meet CAA requirements and thus 
proposed to issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to Knox County Regulation 32.1(C). Accordingly, the EPA is finding that 
this provision is substantially inadequate to meet CAA requirements and 
the EPA is thus issuing a SIP call with respect to this provision. This 
action is fully consistent with what the EPA proposed in February 2013. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Tennessee SIP that the EPA received and considered during the 
development of this rulemaking.
12. Tennessee: Shelby County
    As described in section IX.E.12 of the February 2013 proposal, the 
Petitioner objected to a provision in the Shelby County Code (Shelby 
County Code Sec.  16-87) that addresses enforcement for excess 
emissions that occur during ``malfunctions, startups, and shutdowns'' 
by incorporating by reference the state's provisions in Tenn. Comp. R. 
& Regs. 1200-3-20. Shelby County Code Sec.  16-87 provides that ``all 
such additions, deletions, changes and amendments as may subsequently 
be made'' to Tennessee's regulations will automatically become part of 
the Shelby County Code.
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Shelby County Code Sec.  
16-87.
    Consequently, the EPA proposed to find that Shelby County Code 
Sec.  16-87 is substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to Shelby County Code Sec.  16-87. Accordingly, the EPA is finding that 
this provision is substantially inadequate to meet CAA requirements and 
the EPA is thus issuing a SIP call with respect to this provision. This 
action is fully consistent with what the EPA proposed in February 2013. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Tennessee SIP that the EPA received and considered during the 
development of this rulemaking.

F. Affected States in EPA Region V

1. Illinois
    As described in section IX.F.1 of the February 2013 proposal, the 
Petitioner objected to three generally applicable provisions in the 
Illinois SIP which together have the effect of providing discretionary 
exemptions from otherwise applicable SIP emission limitations. The 
Petitioner noted that the provisions invite sources to request, during 
the permitting process, advance permission to continue to operate 
during a malfunction or breakdown, and, similarly to request advance 
permission to ``violate'' otherwise applicable emission limitations 
during startup (Ill. Admin. Code tit. 35 Sec.  201.261). The Illinois 
SIP provisions establish criteria that a state official must consider 
before granting the advance permission to violate the emission 
limitations (Ill. Admin. Code tit. 35 Sec.  201.262). However, the 
Petitioner asserted, the provisions state that, once granted, the 
advance permission to violate the emission limitations ``shall be a 
prima facie defense to an enforcement action'' (Ill. Admin. Code tit. 
35 Sec.  201.265).
    Further, the Petitioner objected to the use of the term ``prima 
facie defense'' in Ill. Admin. Code tit. 35 Sec.  201.265, arguing that 
the term is ``ambiguous in its operation.'' The Petitioner argued that 
the provision is not clear regarding whether the defense is to be 
evaluated ``in a judicial or administrative proceeding or whether the 
Agency determines its availability.'' Allowing defenses to be raised in 
these undefined contexts, the Petitioner argued, is ``inconsistent with 
the enforcement structure of the Clean Air Act.''
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Ill. Admin. Code tit. 35 
Sec.  201.261, Ill. Admin. Code tit. 35 Sec.  201.262 and Ill. Admin. 
Code tit. 35 Sec.  201.265.
    Subsequently, for reasons explained fully in the SNPR, the EPA 
reproposed granting of the Petition with respect to the affirmative 
defense provisions in Ill. Admin. Code tit. 35 Sec.  201.261, Ill. 
Admin. Code tit. 35 Sec.  201.262 and Ill.

[[Page 33966]]

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

[[Page 33967]]

Admin. Code 3745-75-02(E), Ohio Admin. Code 3745-75-02(J), Ohio Admin. 
Code 3745-75-03(I), Ohio Admin. Code 3745-75-04(K) and Ohio Admin. Code 
3745-75-04(L).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Ohio Admin. Code 3745-
15-06(A)(3), Ohio Admin. Code 3745-17-07(A)(3)(c), Ohio Admin. Code 
3745-17-07(B)(11)(f) and Ohio Admin. Code 3745-14-11(D). Also for 
reasons explained fully in the February 2013 proposal, the EPA proposed 
to deny the Petition with respect to Ohio Admin. Code 3745-75-02(E), 
Ohio Admin. Code 3745-75-02(J), Ohio Admin. Code 3745-75-03(I), Ohio 
Admin. Code 3745-75-04(K) and Ohio Admin. Code 3745-75-04(L), on the 
basis that they are not part of the Ohio SIP and thus cannot represent 
a substantial inadequacy in the SIP. In addition, for reasons explained 
fully in the February 2013 proposal, the EPA proposed to find that 
another provision, Ohio Admin. Code 3745-15-06(C), is substantially 
inadequate to meet CAA requirements and proposed to issue a SIP call 
with respect to this provision, even though the Petitioner did not 
request that the EPA evaluate this provision. As explained in the 
February 2013 proposal, the EPA determined that Ohio Admin. Code 3745-
15-06(C) was the regulatory mechanism in the SIP by which exemptions 
are granted in the two provisions to which the Petitioner did object.
    Consequently, the EPA proposed to find that the provisions in Ohio 
Admin. Code 3745-15-06(A)(3), Ohio Admin. Code 3745-17-07(A)(3)(c), 
Ohio Admin. Code 3745-17-07(B)(11)(f), Ohio Admin. Code 3745-14-11(D) 
and Ohio Admin. Code 3745-15-06(C) are substantially inadequate to meet 
CAA requirements and thus proposed to issue a SIP call with respect to 
these provisions.
    In this final action, the EPA is granting the Petition with respect 
to Ohio Admin. Code 3745-15-06(A)(3), Ohio Admin. Code 3745-17-
07(A)(3)(c), Ohio Admin. Code 3745-17-07(B)(11)(f), Ohio Admin. Code 
3745-14-11(D) and Ohio Admin. Code 3745-15-06(C) are substantially 
inadequate to meet CAA requirements and the EPA is thus issuing a SIP 
call with respect to these provisions. Also in this final action, the 
EPA is denying the Petition with respect to Ohio Admin. Code 3745-75-
02(E), Ohio Admin. Code 3745-75-02(J), Ohio Admin. Code 3745-75-03(I), 
Ohio Admin. Code 3745-75-04(K) and Ohio Admin. Code 3745-75-04(L). This 
action is fully consistent with what the EPA proposed in February 2013. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the Ohio 
SIP that the EPA received and considered during the development of this 
rulemaking.

G. Affected States in EPA Region VI

1. Arkansas
    As described in section IX.G.1 of the February 2013 proposal, the 
Petitioner objected to two provisions in the Arkansas SIP. First, the 
Petitioner objected to a provision that provides an automatic exemption 
for excess emissions of VOC for sources located in Pulaski County that 
occur due to malfunctions (Reg. 19.1004(H)). Second, the Petitioner 
objected to a separate provision that provides a ``complete affirmative 
defense'' for excess emissions that occur during emergency conditions 
(Reg. 19.602). The Petitioner argued that this provision, which the 
state may have modeled after the EPA's title V regulations, is 
impermissible because its application is not clearly limited to 
operating permits.
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Reg. 19.1004(H) and Reg. 
19.602.
    Subsequently, for reasons explained fully in the SNPR, the EPA 
reproposed granting of the Petition with respect to the affirmative 
defense provision in Reg. 19.602, but it proposed to revise the basis 
for the finding of substantial inadequacy and the SIP call for this 
provision.
    Consequently, the EPA proposed to find that Reg. 19.1004(H) and 
Reg. 19.602 \396\ are substantially inadequate to meet CAA requirements 
and thus proposed to issue a SIP call with respect to these provisions.
---------------------------------------------------------------------------

    \396\ In a final action published March 4, 2015 (80 FR 11573), 
the EPA approved revisions of the Arkansas SIP pertaining to the 
regulation and permitting of PM2.5. Among the approved 
revisions was a change to Reg. 19.602, to capitalize the letter 
``C'' in that regulation's title, ``Emergency Conditions''). To the 
extent the EPA's recent action affected Reg. 19.602, that action was 
only a ministerial matter and should not be construed as reapproval 
of the provision on its merits. That action does not affect the 
basis on which the EPA proposed to find Reg. 19.602 substantially 
inadequate in the February 2013 proposal.
---------------------------------------------------------------------------

    In this final action, the EPA is granting the Petition with respect 
to Reg. 19.1004(H) and Reg. 19.602. Accordingly, the EPA is finding 
that these provisions are substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
these provisions. This action is fully consistent with what the EPA 
proposed in February 2013 as revised in the SNPR. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Arkansas SIP that 
the EPA received and considered during the development of this 
rulemaking.
2. Louisiana
    As described in section IX.G.2 of the February 2013 proposal, the 
Petitioner objected to several provisions in the Louisiana SIP that 
allow for automatic and discretionary exemptions from SIP emission 
limitations during various situations, including startup, shutdown, 
maintenance and malfunctions. First, the Petitioner objected to 
provisions that provide automatic exemptions for excess emissions of 
VOC from wastewater tanks (LAC 33:III.2153(B)(1)(i)) and excess 
emissions of NOX from certain sources within the Baton Rouge 
Nonattainment Area (LAC 33:III.2201(C)(8)). The LAC 
33:III.2153(B)(1)(i) provides that control devices ``shall not be 
required'' to meet emission limitations ``during periods of malfunction 
and maintenance on the devices for periods not to exceed 336 hours per 
year.'' Similarly, LAC 33:III.2201(C)(8) provides that certain sources 
``are exempted'' from emission limitations ``during start-up and 
shutdown . . . or during a malfunction.'' Second, the Petitioner 
objected to provisions that provide discretionary exemptions to various 
emission limitations. Three of these provisions provide discretionary 
exemptions from otherwise applicable SO2 and visible 
emission limitations in the Louisiana SIP for excess emissions that 
occur during certain startup and shutdown events (LAC 33:III.1107, LAC 
33:III.1507(A)(1) and LAC 33:III.1507(B)(1)), while the other two 
provide such exemptions for excess emissions from nitric acid plants 
during startups and ``upsets'' (LAC 33:III.2307(C)(1)(a) and LAC 
33:III.2307(C)(2)(a)).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to LAC 33:III.2153(B)(1)(i) 
and LAC 33:III.2201(C)(8) on the basis that these provisions allow for 
automatic exemptions for excess emissions from otherwise applicable SIP 
emission limitations. Also for reasons explained fully in the February 
2013 proposal, the EPA proposed to grant the Petition with respect to 
LAC 33:III.1107(A), LAC 33:III.1507(A)(1), LAC 33:III.1507(B)(1), LAC 
33:III.2307(C)(1)(a) and LAC 33:III.2307(C)(2)(a) on the basis that

[[Page 33968]]

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

[[Page 33969]]

issuing a SIP call with respect to these provisions. This action is 
fully consistent with what the EPA proposed in the SNPR. Please refer 
to the Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Texas SIP that the 
EPA received and considered during the development of this rulemaking.

H. Affected States in EPA Region VII

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

[[Page 33970]]

waste incinerators (HMIWI) during SSM (Neb. Admin. Code Title 129 Sec.  
18-004.02).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to deny the Petition with respect to Neb. Admin. Code Title 
129 Sec.  11-35.001. Also for reasons explained fully in the February 
2013 proposal, the EPA proposed to deny the Petition with respect to 
Neb. Admin. Code Title 129 Sec.  18-004.02 on the basis that this 
regulation is not part of the Nebraska SIP and thus cannot represent an 
inadequacy in the SIP.
    In this final action, the EPA is denying the Petition with respect 
to Neb. Admin. Code Title 129, Chapter 35, Section 001 (correction to 
citation, as per comment received from Nebraska DEQ, from earlier 
identification as Neb. Admin. Code Title 129 Sec.  11-35.001) and Neb. 
Admin. Code Title 129 Sec.  18-004.02.
    This action is fully consistent with what the EPA proposed in 
February 2013. Please refer to the Response to Comment document 
available in the docket for this rulemaking concerning any other 
comments specific to the Nebraska SIP that the EPA received and 
considered during the development of this rulemaking.
5. Nebraska: Lincoln-Lancaster
    As described in section IX.H.5 of the February 2013 proposal, the 
Petitioner objected to a generally applicable provision in the Lincoln-
Lancaster County Air Pollution Control Program (Art. 2 Sec.  35), which 
governs the Lincoln-Lancaster County Air Pollution Control District of 
Nebraska, that is parallel ``in all aspects pertinent to this 
analysis'' to Neb. Admin. Code Title 129 Sec.  11-35.001. (Note that as 
per comment subsequently received from Nebraska DEQ, the correct 
citation is Neb. Admin. Code Title 129, Chapter 35, Section 001.)
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to deny the Petition with respect to Art. 2 Sec.  35, on the 
basis that this provision is on its face clearly applicable only to 
Lincoln-Lancaster County enforcement personnel and that the provision 
thus could not reasonably be read by a court to foreclose enforcement 
by the EPA or through a citizen suit where personnel from Lincoln-
Lancaster County elect not to bring an enforcement action.
    In this final action, the EPA is denying the Petition with respect 
to Art. 2 Sec.  35. This action is fully consistent with what the EPA 
proposed in February 2013. Please refer to the Response to Comment 
document available in the docket for this rulemaking concerning any 
other comments specific to the Nebraska SIP that the EPA received and 
considered during the development of this rulemaking.

I. Affected States in EPA Region VIII

1. Colorado
    As described in section IX.I.1 of the February 2013 proposal, the 
Petitioner objected to two affirmative defense provisions in the 
Colorado SIP that provide for affirmative defenses to qualifying 
sources during malfunctions (5 Colo. Code Regs Sec.  1001-2(II.E)) and 
during periods of startup and shutdown (5 Colo. Code Regs Sec.  1001-
2(II.J)).
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to 5 Colo. Code Regs Sec.  
1001-2(II.J). Also for reasons explained in the February 2013 proposal, 
the EPA proposed to deny the Petition with respect to 5 Colo. Code Regs 
Sec.  1001-2(II.E) on the basis that it included an affirmative defense 
applicable to malfunction events that was consistent with the 
requirements of the CAA as interpreted by the EPA in the 1999 SSM 
Guidance.
    Subsequently, for reasons explained fully in the SNPR, the EPA 
reproposed granting of the Petition with respect to the affirmative 
defense provision in 5 Colo. Code Regs Sec.  1001-2(II.J) applicable to 
startup and shutdown, but it proposed to revise the basis for the 
finding of substantial inadequacy and the SIP call for this provision. 
Also for reasons explained in the SNPR, the EPA reversed its prior 
proposed denial of the Petition with respect to the affirmative defense 
provision 5 Colo. Code Regs Sec.  1001-2(II.E) applicable to 
malfunctions.
    Consequently, the EPA proposed to find that the provisions in 5 
Colo. Code Regs Sec.  1001-2(II.J) and 5 Colo. Code Regs Sec.  1001-
2(II.E) are substantially inadequate to meet CAA requirements and thus 
proposed to issue a SIP call with respect to these provisions.
    In this final action, the EPA is granting the Petition with respect 
to 5 Colo. Code Regs Sec.  1001-2(II.J) and 5 Colo. Code Regs Sec.  
1001-2(II.E). Accordingly, the EPA is finding that the provisions in 5 
Colo. Code Regs Sec.  1001-2(II.J) and 5 Colo. Code Regs Sec.  1001-
2(II.E) are substantially inadequate to meet CAA requirements and the 
EPA is thus issuing a SIP call to Colorado to correct its SIP with 
respect to these provisions. This action is fully consistent with what 
the EPA proposed in February 2013 as revised in the SNPR. Please refer 
to the Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Colorado SIP that 
the EPA received and considered during the development of this 
rulemaking.
2. Montana
    As described in section IX.I.2 of the February 2013 proposal, the 
Petitioner objected to an exemption from otherwise applicable emission 
limitations for aluminum plants during startup and shutdown (Montana 
Admin. R 17.8.334).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to ARM 17.8.334.
    Consequently, the EPA proposed to find that ARM 17.8.334 is 
substantially inadequate to meet CAA requirements and thus proposed to 
issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to ARM 17.8.334. Accordingly, the EPA is finding that ARM 17.8.334 is 
substantially inadequate to meet CAA requirements and the EPA is thus 
issuing a SIP call with respect to this provision. This action is fully 
consistent with what the EPA proposed in February 2013. Please refer to 
the Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Montana SIP that the 
EPA received and considered during the development of this rulemaking.
3. North Dakota
    As described in section IX.I.3 of the February 2013 proposal, the 
Petitioner objected to two provisions in the North Dakota SIP that 
create exemptions from otherwise applicable emission limitations. The 
first provision creates exemptions from a number of cross-referenced 
opacity limits ``where the limits specified in this article cannot be 
met because of operations and processes such as, but not limited to, 
oil field service and drilling operations, but only so long as it is 
not technically feasible to meet said specifications'' (N.D. Admin. 
Code Sec.  33-15-03-04(4)). The second provision creates an implicit 
exemption for ``temporary operational breakdowns or cleaning of air 
pollution equipment'' if the source meets certain conditions (N.D. 
Admin. Code Sec.  33-15-05-01(2)(a)(1)).
    For reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to N.D. Admin. Code 33-15-
03-04.4 (cited in the Petition as N.D. Admin. Code Sec.  33-15-03-
04(4)) and also with respect to a

[[Page 33971]]

provision to which the Petitioner cited but did not explicitly object, 
N.D. Admin. Code 33-15-03-04.3 (cited in the Petition as N.D. Admin. 
Code Sec.  33-15-03-04(3)). Also for reasons explained in the February 
2013 proposal, the EPA proposed to grant the Petition with respect to 
N.D. Admin. Code 33-15-05-01.2a(1) (cited in the Petition as N.D. 
Admin. Code Sec.  33-15-05-01(2)(a)(1)).
    Subsequently, the state of North Dakota removed N.D. Admin. Code 
33-15-03-04.4 and N.D. Admin. Code 33-15-05-01.2.a(1) and eliminated 
the SIP inadequacies with respect to those two of the three provisions 
identified in the February 2013 proposal notice. The EPA has already 
approved the necessary SIP revisions for those two provisions.\397\ 
Thus, the EPA's final action on the Petition does not need to include a 
finding of substantial inadequacy and SIP call for those two 
provisions.
---------------------------------------------------------------------------

    \397\ See ``Approval and Promulgation of Implementation Plans; 
North Dakota; Revisions to the Air Pollution Control Rules,'' 79 FR 
63045 (October 22, 2014).
---------------------------------------------------------------------------

    In this final action, the EPA is granting the Petition with respect 
to N.D. Admin. Code 33-15-03-04.3 and denying the Petition with respect 
to N.D. Admin. Code 33-15-03-04.4 and N.D. Admin. Code 33-15-05-
01.2.a(1). Accordingly, the EPA is finding that the provision in N.D. 
Admin. Code 33-15-03-04.3 is substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call to North Dakota to 
correct its SIP with respect to this provision. This action is fully 
consistent with what the EPA proposed in February 2013 with respect to 
this provision. Please refer to the Response to Comment document 
available in the docket for this rulemaking concerning any comments 
specific to the North Dakota SIP that the EPA received and considered 
during the development of this rulemaking.
4. South Dakota
    As described in section IX.I.4 of the February 2013 proposal, the 
Petitioner objected to a provision in the South Dakota SIP that creates 
exemptions from otherwise applicable SIP emission limitations (S.D. 
Admin, R. 74:36:12:02(3)). The Petitioner asserted that the provision 
imposes visible emission limitations on sources but explicitly excludes 
emissions that occur ``for brief periods during such operations as soot 
blowing, start-up, shut-down, and malfunctions.''
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to S.D. Admin, R. 
74:36:12:02(3).
    Consequently, the EPA proposed to find that S.D. Admin, R. 
74:36:12:02(3) is substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to S.D. Admin, R. 74:36:12:02(3). Accordingly, the EPA is finding that 
S.D. Admin, R. 74:36:12:02(3) is substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
this provision. This action is fully consistent with what the EPA 
proposed in February 2013. Please refer to the Response to Comment 
document available in the docket for this rulemaking concerning any 
comments specific to the South Dakota SIP that the EPA received and 
considered during the development of this rulemaking.
5. Wyoming
    As described in section IX.I.5 of the February 2013 proposal, the 
Petitioner objected to a specific provision in the Wyoming SIP that 
provides an exemption for excess PM emissions from diesel engines 
during startup, malfunction and maintenance (WAQSR Chapter 3, section 
2(d), cited as ENV-AQ-1 Wyo. Code R. Sec.  2(d) in the Petition). The 
provision exempts emission of visible air pollutants from diesel 
engines from applicable SIP limitations ``during a reasonable period of 
warmup following a cold start or where undergoing repairs and 
adjustment following malfunction.''
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to WAQSR Chapter 3, section 
2(d) (cited as ENV-AQ-1 Wyo. Code R. Sec.  2(d) in the Petition).
    Subsequently, the state of Wyoming revised WAQSR Chapter 3, section 
2(d) and eliminated the SIP inadequacies identified in the February 
2013 proposal document with respect to this provision. The EPA has 
already approved the necessary SIP revision for this provision.\398\ 
Thus, the EPA's final action on the Petition does not need to include a 
finding of substantial inadequacy and SIP call for this provision.
---------------------------------------------------------------------------

    \398\ See ``Approval and Promulgation of Implementation Plans; 
Wyoming; Revisions to the Air Quality Standards and Regulations,'' 
79 FR 62859 (October 21, 2014).
---------------------------------------------------------------------------

    In this final action, the EPA is denying the Petition with respect 
to WAQSR Chapter 3, section 2(d). Please refer to the Response to 
Comment document available in the docket for this rulemaking concerning 
any comments specific to the Wyoming SIP that the EPA received and 
considered during the development of this rulemaking.

J. Affected States and Local Jurisdictions in EPA Region IX

1. Arizona
    As described in section IX.J.1 of the February 2013 proposal, the 
Petitioner objected to two provisions in the Arizona Department of Air 
Quality's (ADEQ) Rule R18-2-310, which provide affirmative defenses for 
excess emissions during malfunctions (AAC Section R18-2-310(B)) and for 
excess emissions during startup or shutdown (AAC Section R18-2-310(C)).
    For reasons explained in the February 2013 proposal, the EPA 
proposed to deny the Petition with respect to AAC Section R18-2-310(B) 
on the basis that it included an affirmative defense applicable to 
malfunction events that was consistent with the CAA as interpreted by 
the EPA in the 1999 SSM Guidance.
    Also for reasons explained in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to AAC Section R18-2-
310(C).
    Subsequently, for reasons explained fully in the SNPR, the EPA 
reversed its prior proposed denial of the Petition with respect to the 
affirmative defense provision AAC Section R18-2-310(B) applicable to 
malfunctions. Also for reasons explained in the SNPR, the EPA 
reproposed granting of the Petition with respect to the affirmative 
defense provision in AAC Section R18-2-310(C) applicable to startup and 
shutdown, but it proposed to revise the basis for the finding of 
substantial inadequacy and the SIP call for this provision.
    Consequently, the EPA proposed to find that the provisions in AAC 
Section R18-2-310(B) and AAC Section R18-2-310(C) are substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call with respect to these provisions.
    In this final action, the EPA is granting the Petition with respect 
to AAC Section R18-2-310(B) and AAC Section R18-2-310(C). Accordingly, 
the EPA is finding that the provisions in AAC Section R18-2-310(B) and 
AAC Section R18-2-310(C) are substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
these provisions. This action is fully consistent with what the EPA 
proposed in February 2013 as revised in the SNPR. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments

[[Page 33972]]

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

    \399\ The EPA is in this final action making a finding of 
substantial inadequacy and issuing a SIP call for Kern County Rule 
111 Equipment Breakdown in the California SIP as it applies in each 
the Eastern Kern APCD and the San Joaquin Valley Unified APCD.
---------------------------------------------------------------------------

5. California: Imperial County Air Pollution Control District
    The Petitioner did not identify any provisions in the SIP for the 
state of California, which is why this state was not explicitly 
addressed in the February 2013 proposal.
    Subsequently, for reasons explained fully in the SNPR, the EPA 
identified an affirmative defense provision in the SIP for the state of 
California applicable in the Imperial Valley APCD, and the EPA proposed 
to make a finding of substantial inadequacy and to issue a SIP call for 
this provision. The affirmative defense is included in Imperial County 
``Rule 111 Equipment Breakdown.'' This SIP provision provides an 
affirmative defense available to sources for excess emissions that 
occur during a breakdown condition (i.e., malfunction).
    In this final action, the EPA is finding that Imperial County 
``Rule 111 Equipment Breakdown'' in the California SIP applicable in 
the Imperial Valley APCD is substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
this provision. This action is fully consistent with what the EPA 
proposed in the SNPR. Please refer to the Response to Comment document 
available in the docket for this rulemaking concerning any comments 
specific to the California SIP that the EPA received and considered 
during the development of this rulemaking.
6. California: San Joaquin Valley Unified Air Pollution Control 
District
    The Petitioner did not identify any provisions in the SIP for the 
state of California, which is why this state was not explicitly 
addressed in the February 2013 proposal.
    Subsequently, for reasons explained fully in the SNPR, the EPA 
identified affirmative defense provisions in the SIP for the state of 
California applicable in the San Joaquin Valley Unified APCD, and the 
EPA proposed to make a finding of substantial inadequacy and to issue a 
SIP call for these provisions. The affirmative defenses are included 
in: (i) Fresno County ``Rule 110 Equipment

[[Page 33973]]

Breakdown''; (ii) Kern County ``Rule 111 Equipment Breakdown''; (iii) 
Kings County ``Rule 111 Equipment Breakdown''; (iv) Madera County 
``Rule 113 Equipment Breakdown''; (v) Stanislaus County ``Rule 110 
Equipment Breakdown''; and (vi) Tulare County ``Rule 111 Equipment 
Breakdown.'' Each of these SIP provisions provides an affirmative 
defense available to sources for excess emissions that occur during a 
breakdown condition (i.e., malfunction).
    In this final action, the EPA is finding that the following six 
provisions in the California SIP applicable in the San Joaquin Valley 
Unified APCD are substantially inadequate to meet CAA requirements and 
the EPA is thus issuing a SIP call with respect to these provisions: 
(i) Fresno County ``Rule 110 Equipment Breakdown''; (ii) Kern County 
``Rule 111 Equipment Breakdown''; (iii) Kings County ``Rule 111 
Equipment Breakdown''; (iv) Madera County ``Rule 113 Equipment 
Breakdown''; (v) Stanislaus County ``Rule 110 Equipment Breakdown''; 
and (vi) Tulare County ``Rule 111 Equipment Breakdown.'' \400\ This 
action is fully consistent with what the EPA proposed in the SNPR. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
California SIP that the EPA received and considered during the 
development of this rulemaking.
---------------------------------------------------------------------------

    \400\ The EPA is in this final action making a finding of 
substantial inadequacy and issuing a SIP call for Kern County Rule 
111 Equipment Breakdown in the California SIP as it applies in each 
the Eastern Kern APCD and the San Joaquin Valley Unified APCD.
---------------------------------------------------------------------------

K. Affected States in EPA Region X

1. Alaska
    As described in section IX.K.1 of the February 2013 proposal, the 
Petitioner objected to a provision in the Alaska SIP that provides an 
excuse for ``unavoidable'' excess emissions that occur during SSM 
events, including startup, shutdown, scheduled maintenance and 
``upsets'' (Alaska Admin. Code tit. 18 Sec.  50.240). The provision 
provides: ``Excess emissions determined to be unavoidable under this 
section will be excused and are not subject to penalty. This section 
does not limit the department's power to enjoin the emission or require 
corrective action.'' The Petitioner also stated that the provision is 
worded as if it were an affirmative defense but it uses criteria for 
enforcement discretion.
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Alaska Admin. Code tit. 
18 Sec.  50.240 on the basis that, to the extent the provision was 
intended to be an affirmative defense, it was not a permissible 
affirmative defense provision consistent with the requirements of the 
CAA as interpreted in the EPA's 1999 SSM Guidance.
    Subsequently, for reasons explained in the SNPR, the EPA reproposed 
granting of the Petition with respect to Alaska Admin. Code tit. 18 
Sec.  50.240, but it proposed to revise the basis for the finding of 
substantial inadequacy and the SIP call for this provision.
    Consequently, the EPA proposed to find that Alaska Admin. Code tit. 
18 Sec.  50.240 is substantially inadequate to meet CAA requirements 
and thus proposed to issue a SIP call with respect to this provision.
    In this final action, the EPA is granting the Petition with respect 
to Alaska Admin. Code tit. 18 Sec.  50.240. Accordingly, the EPA is 
finding that this provision is substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
this provision. This action is fully consistent with what the EPA 
proposed in February 2013 as revised in the SNPR. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Alaska SIP that the 
EPA received and considered during the development of this rulemaking.
2. Idaho
    As described in section IX.K.2 of the February 2013 proposal, the 
Petitioner objected to a provision in the Idaho SIP that appears to 
grant enforcement discretion to the state as to whether to impose 
penalties for excess emissions during certain SSM events (Idaho Admin. 
Code r. 58.01.01.131).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to deny the Petition with respect to Idaho Admin. Code r. 
58.01.01.131.
    In this final action, the EPA is denying the Petition with respect 
to Idaho Admin. Code r. 58.01.01.131. This action is fully consistent 
with what the EPA proposed in February 2013. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Idaho SIP that the 
EPA received and considered during the development of this rulemaking.
3. Oregon
    As described in section IX.K.3 of the February 2013 proposal, the 
Petitioner objected to a provision in the Oregon SIP that grants 
enforcement discretion to the state to pursue violations for excess 
emissions during certain SSM events (Or. Admin. R. 340-028-1450).
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to deny the Petition with respect to Or. Admin. R. 340-028-
1450.
    In this final action, the EPA is denying the Petition with respect 
to Or. Admin. R. 340-028-1450. This action is fully consistent with 
what the EPA proposed in February 2013. Please refer to the Response to 
Comment document available in the docket for this rulemaking concerning 
any comments specific to the Oregon SIP that the EPA received and 
considered during the development of this rulemaking.
4. Washington
    As described in section IX.K.4 of the February 2013 proposal, the 
Petitioner objected to a provision in the Washington SIP that provides 
an excuse for ``unavoidable'' excess emissions that occur during 
certain SSM events, including startup, shutdown, scheduled maintenance 
and ``upsets'' (Wash. Admin. Code Sec.  173-400-107). The provision 
provides that ``[e]xcess emissions determined to be unavoidable under 
the procedures and criteria under this section shall be excused and are 
not subject to penalty.'' The Petitioner argued that this provision 
excuses excess emissions in violation of the CAA and the EPA's SSM 
Policy, which require all such emissions to be treated as violations of 
the applicable SIP emission limitations. The Petitioner also stated 
that the provision is worded as if it were an affirmative defense but 
it uses criteria for enforcement discretion.
    For reasons explained fully in the February 2013 proposal, the EPA 
proposed to grant the Petition with respect to Wash. Admin. Code Sec.  
173-400-107 on the basis that, to the extent the provision was intended 
to be an affirmative defense, it was not a permissible affirmative 
defense provision consistent with the requirements of the CAA as 
interpreted in the EPA's 1999 SSM Guidance.
    Subsequently, for reasons explained in the SNPR, the EPA reproposed 
granting of the Petition with respect to Wash. Admin. Code Sec.  173-
400-107, but it proposed to revise the basis for the finding of 
substantial inadequacy and the SIP call for this provision.
    Consequently, the EPA proposed to find that Wash. Admin. Code Sec.  
173-400-107 is substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call with respect to this provision.

[[Page 33974]]

    In this final action, the EPA is granting the Petition with respect 
to Wash. Admin. Code Sec.  173-400-107. Accordingly, the EPA is finding 
that this provision is substantially inadequate to meet CAA 
requirements and the EPA is thus issuing a SIP call with respect to 
this provision. This action is fully consistent with what the EPA 
proposed in February 2013 as revised in the SNPR. Please refer to the 
Response to Comment document available in the docket for this 
rulemaking concerning any comments specific to the Washington SIP that 
the EPA received and considered during the development of this 
rulemaking.
5. Washington: Energy Facility Site Evaluation Council
    The Petitioner did not identify any provisions in the SIP for the 
state of Washington that specifically apply to the Energy Facility Site 
Evaluation Council (EFSEC) area, which is why this area was not 
explicitly addressed in the February 2013 proposal.
    Subsequently, for reasons explained fully in the SNPR, the EPA 
identified affirmative defense provisions in the SIP for the state of 
Washington that relate to the EFSEC, and the EPA proposed to make a 
finding of substantial inadequacy and to issue a SIP call for these 
provisions in Wash. Admin. Code Sec.  463-39-005. In the EFSEC portion 
of the SIP, Wash. Admin. Code Sec.  463-39-005 adopts by reference 
Wash. Admin. Code Sec.  173-400-107, thereby incorporating the 
affirmative defenses applicable to startup, shutdown, scheduled 
maintenance and ``upsets'' that the EPA is also finding substantially 
inadequate in Wash. Admin. Code Sec.  173-400-107 (see section IX.K.4 
of this document).
    In this final action, the EPA is finding that Wash. Admin. Code 
Sec.  463-39-005 is substantially inadequate to meet CAA requirements 
and the EPA is thus issuing a SIP call with respect to this provision. 
This action is fully consistent with what the EPA proposed in the SNPR. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Washington SIP that the EPA received and considered during the 
development of this rulemaking.
6. Washington: Southwest Clean Air Agency
    The Petitioner did not identify any provisions in the SIP for the 
state of Washington that specifically apply in the portion of the state 
regulated by the Southwest Clean Air Agency (SWCAA),\401\ which is why 
this area was not explicitly addressed in the February 2013 proposal.
---------------------------------------------------------------------------

    \401\ The EPA notes that the SWCAA was formerly named, and in 
some places in the SIP still appears, as the ``Southwest Air 
Pollution Control Authority'' or ``SWAPCA.'' The EPA anticipates 
that the name will be updated in the SIP in due course as the state 
revises the SIP.
---------------------------------------------------------------------------

    Subsequently, for reasons explained fully in the SNPR, the EPA 
identified affirmative defense provisions in the SIP for the state of 
Washington that apply in the portion of the state regulated by SWCAA, 
and the EPA proposed to make a finding of substantial inadequacy and to 
issue a SIP call for these provisions. The affirmative defenses are 
included in the SIP in SWAPCA ``400-107 Excess Emissions.'' This SIP 
section provides an affirmative defense available to sources for excess 
emissions that occur during startup and shutdown, maintenance and 
``upsets'' (i.e., malfunctions). It is identical to Wash. Admin. Code 
Sec.  173-400-107 in all respects except that SWAPCA 400-107(3) 
contains a more stringent requirement for the reporting of excess 
emissions.
    In this final action, the EPA is finding that SWAPCA ``400-107 
Excess Emissions'' in the Washington SIP applicable in the area 
regulated by SWCAA is substantially inadequate to meet CAA requirements 
and the EPA is thus issuing a SIP call with respect to this provision. 
This action is fully consistent with what the EPA proposed in the SNPR. 
Please refer to the Response to Comment document available in the 
docket for this rulemaking concerning any comments specific to the 
Washington SIP that the EPA received and considered during the 
development of this rulemaking.

X. Implementation Aspects of EPA's SSM SIP Policy

A. Recommendations Concerning Alternative Emission Limitations for 
Startup and Shutdown

    In response to a SIP call concerning an existing automatic or 
discretionary exemption for excess emissions during SSM events, the EPA 
anticipates that a state may elect to create an alternative emission 
limitation that applies during startup and shutdown events (or during 
any other normal mode of operation during which the exemption may have 
applied) as a revised element or component of the existing emission 
limitation. The EPA emphasizes that states have discretion to revise 
the identified deficient provisions by any means they choose, so long 
as the revised provision is consistent with CAA requirements for SIP 
provisions. If a state elects to create an alternative emission 
limitation to replace an existing exemption, there are several issues 
that the state should consider.
    First, as explained in sections VII.B and XI of this document, the 
EPA has longstanding guidance that provides recommendations to states 
concerning the development of alternative emission limitations 
applicable during startup and shutdown to replace exemptions in 
existing SIP provisions. The EPA first provided this guidance in the 
1999 SSM Guidance but has reiterated and clarified its guidance in this 
action. The EPA recommends that states consider the seven clarified 
criteria described in sections VII.B and XI of this document when 
developing new alternative emission limitations to replace automatic or 
discretionary exemptions, in order to assure that the revised 
provisions submitted to the EPA for approval meet basic CAA 
requirements for SIP emission limitations.
    Second, the EPA reiterates that SIP emission limitations that are 
expressed as numerical limitations do not necessarily have to require 
the same numerical level of emissions during all modes of normal source 
operation. Under appropriate circumstances consistent with the criteria 
that the EPA recommends for alternative emission limitations, it may be 
appropriate to have a numerical emission limitation that has a higher 
numerical level applicable during specific modes of source operation, 
such as during startup and shutdown. For example, if a rate-based 
NOX emission limitation in the SIP applies to a specific 
source category, then it may be appropriate for that emission 
limitation to have a higher numerical standard applicable during 
defined periods of startup or shutdown. Such an approach can be 
consistent with SIP requirements, so long as that higher numerical 
level for startup or shutdown is properly established and is legally 
and practically enforceable, and so long as other overarching CAA 
requirements are also met. However, alternative emission limitations 
applicable during startup and shutdown cannot be inappropriately high 
or an effectively unlimited or uncontrolled level of emissions, as 
those would constitute impermissible de facto exemptions for emissions 
during certain modes of operation.
    Third, the EPA reiterates that SIP emission limitations do not 
necessarily have to be expressed in terms of a numerical level of 
emissions. There are many sources for which a numerically expressed 
emission limitation will be the most appropriate and will result in

[[Page 33975]]

the most legally and practically enforceable SIP requirements.\402\ 
However, the EPA recognizes that for some source categories, under some 
circumstances, it may be appropriate for the SIP emission limitation to 
include a specific technological control requirement or specific work 
practice requirement that applies during specified modes of source 
operation such as startup and shutdown. For example, if the otherwise 
applicable numerical SO2 emission limitation in the SIP is 
not achievable, and the otherwise required SO2 control 
measure is not effective during startup and shutdown and/or measurement 
of emissions during startup and shutdown is not reasonably feasible, 
then it may be appropriate for that emission limitation to impose a 
different control measure, such as use of low sulfur coal, applicable 
during defined periods of startup and shutdown in lieu of a numerically 
expressed emission limitation. Such an approach can be consistent with 
SIP requirements, so long as that alternative control measure 
applicable during startup and shutdown is properly established and is 
legally and practically enforceable as a component of the emission 
limitation, and so long as other overarching CAA requirements are also 
met.
---------------------------------------------------------------------------

    \402\ The EPA notes that in the CAA there is a presumption in 
favor of numerical emission limitations for purposes of section 112 
and section 169, but section 110(a) does not include such an 
explicit presumption. However, there may be sources for which a 
numerically expressed emission limitation is the one that is most 
legally and practically enforceable, even during startup and 
shutdown, and for which a numerically expressed emission limitation 
is thus most appropriate.
---------------------------------------------------------------------------

    Fourth, the EPA notes that revisions to replace existing automatic 
or discretionary exemptions for SSM events with alternative emission 
limitations applicable during startup and shutdown also need to meet 
the applicable overarching CAA requirements with respect to the SIP 
emission limitation at issue. For example, if the emission limitation 
is in the SIP to meet the requirement that the source category be 
subject to RACT level controls for NOX for purposes of the 
ozone NAAQS, then the state should assure that the higher numerical 
level or other control measure that will apply to NOX 
emissions during startup and shutdown does constitute a RACT level of 
control for such sources for such pollutant during such modes of 
operation.
    Finally, the EPA notes that states should not replace automatic or 
discretionary exemptions for excess emissions during SSM events with 
alternative emission limitations that are a generic requirement such as 
a ``general duty to minimize emissions'' provision or an ``exercise 
good engineering judgment'' provision.\403\ While such provisions may 
serve an overarching purpose of encouraging sources to design, maintain 
and operate their sources correctly, such generic clauses are not a 
valid substitute for more specific emission limitations that apply 
during normal modes of operation such as startup and shutdown.
---------------------------------------------------------------------------

    \403\ The EPA notes that the ``general duty'' imposed under CAA 
section 112(r) is a separate standard, in addition to the otherwise 
applicable emission limitations and is not in lieu of those 
requirements.
---------------------------------------------------------------------------

B. Recommendations for Compliance With Section 110(l) and Section 193 
for SIP Revisions

    In response to a SIP call for any type of deficient provision, the 
EPA anticipates that each state will determine the best way to revise 
its SIP provisions to bring them into compliance with CAA requirements. 
In this action the EPA is only identifying the provisions that need to 
be revised because they violate fundamental requirements of the CAA and 
providing guidance to states in the SSM Policy concerning the types of 
provisions that are and are not permissible with respect to the 
treatment of excess emissions during SSM events. The EPA recognizes 
that one important consideration for air agencies as they evaluate how 
best to revise their SIP provisions in response to this SIP call is the 
nature of the analysis that will be necessary for the resulting SIP 
revisions under section 110(l) and section 193. The EPA is therefore 
providing in this document general guidance on this important issue in 
order to assist states with SIP revisions in response to the SIP call.
    Section 110(k)(3) directs the EPA to approve SIP submissions that 
comply with applicable CAA requirements and to disapprove those that do 
not. Under section 110(l), the EPA is prohibited from approving any SIP 
revision that would interfere with any applicable requirement 
concerning attainment and reasonable further progress or any other 
requirements of the CAA. To illustrate different ways in which section 
110(l) and section 193 may apply in the evaluation of future SIP 
submissions in response to the SIP call, the EPA anticipates that there 
are several common scenarios that states may wish to consider when 
revising their SIPs:
    Example 1: A state elects to revise an existing SIP provision by 
removing an existing automatic exemption provision, director's 
discretion provision, enforcement discretion provision or affirmative 
defense provision, without altering any other aspects of the SIP 
provision at issue (e.g., elects to retain the emission limitation for 
the source category but eliminate the exemption for emissions during 
SSM events). Although the EPA must review each SIP submission for 
compliance with section 110(l) and section 193 on the facts and 
circumstances of the revision, the Agency believes in general that this 
type of SIP revision should not entail a complicated analysis to meet 
these statutory requirements. Presumably, removal of the impermissible 
components of preexisting SIP provisions would not constitute 
backsliding, would in fact strengthen the SIP and would be consistent 
with the overarching requirement that the SIP revision be consistent 
with the requirements of the CAA. Accordingly, the EPA believes that 
this type of SIP revision should not entail a complicated analysis for 
purposes of section 110(l). If the SIP revision is also governed by 
section 193, then elimination of the deficiency will likewise 
presumably result in equal or greater emission reductions and thus 
comply with section 193 without the need for a more complicated 
analysis. The EPA has recently evaluated a SIP revision to remove 
specific SSM deficiencies in this manner.\404\
---------------------------------------------------------------------------

    \404\ See ``Approval and Promulgation of Implementation Plans; 
Kentucky; Approval of Revisions to the Jefferson County Portion of 
the Kentucky SIP; Emissions During Startups, Shutdowns, and 
Malfunctions,'' proposed at 78 FR 29683 (May 21, 2013), finalized at 
79 FR 33101 (June 10, 2014).
---------------------------------------------------------------------------

    Example 2: A state elects to revise its SIP provision by replacing 
an automatic exemption for excess emissions during startup and shutdown 
events with an appropriate alternative emission limitation (e.g., a 
different numerical limitation or different other control requirement) 
that is explicitly applicable during startup and shutdown as a 
component of the revised emission limitation. Although the EPA must 
review each SIP revision for compliance with section 110(l) and section 
193 on the facts and circumstances of the revision, the Agency believes 
in general that this type of SIP revision should not entail a 
complicated analysis to meet these statutory requirements. Presumably, 
the replacement of an automatic exemption applicable to startup and 
shutdown with an appropriate alternative emission limitation would not 
constitute backsliding, would strengthen the SIP and would be 
consistent with the overarching requirement that the SIP revision be 
consistent with the

[[Page 33976]]

requirements of the CAA. The state should develop that alternative 
emission limitation in accordance with the EPA's guidance 
recommendations for such provisions to assure that it would meet CAA 
requirements.\405\ In addition, that alternative emission limitation 
would both need to meet the overarching CAA applicable requirements 
that the emission limitation is designed and intended to meet (e.g., 
RACT-level controls for the source category in an attainment area for a 
NAAQS) and need to be legally and practically enforceable (e.g., have 
adequate recordkeeping, reporting, monitoring or other features 
requisite for enforcement). If a state has developed the alternative 
emission limitation consistent with these criteria, then the EPA 
anticipates that the revision of the emission limitation to replace the 
exemption with an alternative emission limitation applicable to startup 
and shutdown would not be backsliding, would be a strengthening of the 
SIP and would be consistent with the requirement of section 110(l) that 
a SIP revision be consistent with the requirements of the CAA. 
Similarly, if section 193 applies to the emission limitation that the 
state is revising, then the replacement of an exemption applicable to 
emissions during startup and shutdown with an appropriately developed 
alternative emission limitation that explicitly applies during startup 
and shutdown would presumably result in equal or greater emission 
reductions and thus should meet the requirements of section 193 without 
the need for a more complicated analysis.
---------------------------------------------------------------------------

    \405\ These recommendations are discussed in detail in section 
VII.B.2 of this document.
---------------------------------------------------------------------------

    Example 3: A state elects to revise an existing SIP provision not 
merely by removal of an existing automatic exemption provision, 
director's discretion provision, enforcement discretion provision or 
affirmative defense provision, but by the removal of the deficiency 
combined with a total revision of the emission limitation. The EPA 
anticipates that there may be emission limitations for which a state 
may elect to do such a wholesale revision of the SIP provision as part 
of eliminating an impermissible component of the existing provision 
(e.g., removal of an automatic exemption applicable to emissions during 
SSM events through a complete revision of the emission limitation to 
create a different emission limitation that applies at all times, 
including during SSM events). In developing a completely revised SIP 
provision, the state should assure that the replacement provision meets 
the applicable overarching CAA requirements that the provision is 
designed and intended to meet, is legally and practically enforceable 
and is not less stringent than the prior SIP provision. The EPA 
believes in general that this type of SIP revision may require a more 
in-depth analysis to meet these statutory requirements of section 
110(l) and section 193. To the extent that there is any concern that 
the revised SIP provision is less stringent than the provision it 
replaces, then there will need to be a careful evaluation as to whether 
the revised provision would interfere with any applicable requirement 
concerning attainment and reasonable further progress and with any 
other applicable requirement of the CAA. Presumably, however, so long 
as the state has properly developed the revised emission limitation to 
assure that it meets the overarching CAA requirements and to assure 
that it will not result in a less stringent emission limitation, then 
the complete revision of the emission limitation would not constitute 
backsliding, would be a strengthening of the SIP and thereby would 
comply with section 110(l). If the SIP revision is also governed by 
section 193, then there will also need to be an analysis to assure that 
the revision will result in equal or greater emission reductions and 
thus comply with section 193. To the extent that there is concern that 
the revision would result in a less stringent emission limitation than 
the preexisting emission limitation, then a more complex analysis would 
likely be required.
    The EPA emphasizes that each SIP revision must be evaluated for 
compliance with section 110(l) and section 193 on the facts and 
circumstances of the specific revision, but these examples are intended 
to provide general guidance on the considerations and the nature of the 
analysis that may be appropriate for different types of SIP revisions. 
States should contact their respective EPA Regional Offices (see the 
SUPPLEMENTARY INFORMATION section of this document) for further 
recommendations and assistance concerning the analysis appropriate for 
specific SIP revisions in response to this SIP call.

XI. Statement of the EPA's SSM SIP Policy as of 2015

    The EPA's longstanding interpretation of the CAA is that SIP 
provisions cannot include exemptions from emission limitations for 
emissions during SSM events. In order to be permissible in a SIP, an 
emission limitation must be applicable to the source continuously, 
i.e., cannot include periods during which emissions from the source are 
legally or functionally exempt from regulation. Regardless of its form, 
a fully approvable SIP emission limitation must also meet all 
substantive requirements of the CAA applicable to such a SIP provision, 
e.g., the statutory requirement of section 172(c)(1) for imposition of 
RACM and RACT on sources located in designated nonattainment areas.
    This section of the document provides more specific guidance on the 
appropriate treatment of emissions during SSM events in SIP provisions, 
replacing the EPA's prior guidance issued in memoranda of 1982, 1983, 
1999 and 2001. The more extended explanations and interpretations 
provided in other sections of this document are also applicable, should 
a situation arise that is not sufficiently covered by this section's 
more concise policy statement. This SSM Policy as of 2015 is a policy 
statement and thus constitutes guidance. As guidance, this SSM Policy 
as of 2015 does not bind states, the EPA or other parties, but it does 
reflect the EPA's interpretation of the statutory requirements of the 
CAA. The EPA's evaluation of any SIP provision, whether prospectively 
in the case of a new provision in a SIP submission or retrospectively 
in the case of a previously approved SIP submission, must be conducted 
through a notice-and-comment rulemaking in which the EPA will determine 
whether a given SIP provision is consistent with the requirements of 
the CAA and applicable regulations.

A. Definitions

    The term alternative emission limitation means, in this document, 
an emission limitation in a SIP that applies to a source during some 
but not all periods of normal operation (e.g., applies only during a 
specifically defined mode of operation such as startup or shutdown). An 
alternative emission limitation is a component of a continuously 
applicable SIP emission limitation, and it may take the form of a 
control measure such as a design, equipment, work practice or 
operational standard (whether or not numerical). This definition of the 
term is independent of the statutory use of the term ``alternative 
means of emission limitation'' in sections 111(h)(3) and 112(h)(3), 
which pertain to the conditions under which the EPA may pursuant to 
sections 111 and 112 promulgate emission limitations, or components of 
emission limitations,

[[Page 33977]]

that are not necessarily in numeric format.
    The term automatic exemption means a generally applicable provision 
in a SIP that would provide that if certain conditions existed during a 
period of excess emissions, then those exceedances would not be 
considered violations of the applicable emission limitations.
    The term director's discretion provision means, in general, a 
regulatory provision that authorizes a state regulatory official 
unilaterally to grant exemptions or variances from otherwise applicable 
emission limitations or control measures, or to excuse noncompliance 
with otherwise applicable emission limitations or control measures, 
which would be binding on the EPA and the public.
    The term emission limitation means, in the context of a SIP, a 
legally binding restriction on emissions from a source or source 
category, such as a numerical emission limitation, a numerical emission 
limitation with higher or lower levels applicable during specific modes 
of source operation, a specific technological control measure 
requirement, a work practice standard, or a combination of these things 
as components of a comprehensive and continuous emission limitation in 
a SIP provision. In this respect, the term emission limitation is 
defined as in section 302(k) of the CAA. By definition, an emission 
limitation can take various forms or a combination of forms, but in 
order to be permissible in a SIP it must be applicable to the source 
continuously, i.e., cannot include periods during which emissions from 
the source are legally or functionally exempt from regulation. 
Regardless of its form, a fully approvable SIP emission limitation must 
also meet all substantive requirements of the CAA applicable to such a 
SIP provision, e.g., the statutory requirement of section 172(c)(1) for 
imposition of reasonably available control measures and reasonably 
available control technology (RACM and RACT) on sources located in 
designated nonattainment areas.
    The term excess emissions means the emissions of air pollutants 
from a source that exceed any applicable SIP emission limitation. In 
particular, this term includes those emissions above the otherwise 
applicable SIP emission limitation that occur during startup, shutdown, 
malfunction or other modes of source operation, i.e., emissions that 
would be considered violations of the applicable emission limitation 
but for an impermissible automatic or discretionary exemption from such 
emission limitation.
    The term malfunction means a sudden and unavoidable breakdown of 
process or control equipment.
    The term shutdown means, generally, the cessation of operation of a 
source for any reason. In this document, the EPA uses this term in the 
generic sense. In individual SIP provisions it may be appropriate to 
include a specifically tailored definition of this term to address a 
particular source category for a particular purpose.
    The term SSM refers to startup, shutdown or malfunction at a 
source. It does not include periods of maintenance at such a source. An 
SSM event is a period of startup, shutdown or malfunction during which 
there are exceedances of the applicable emission limitations and thus 
excess emissions.
    The term startup means, generally, the setting in operation of a 
source for any reason. In this document, the EPA uses this term in the 
generic sense. In an individual SIP provision it may be appropriate to 
include a specifically tailored definition of this term to address a 
particular source category for a particular purpose.

B. Emission Limitations in SIPs Must Apply Continuously During All 
Modes of Operation, Without Automatic or Discretionary Exemptions or 
Overly Broad Enforcement Discretion Provisions That Would Bar 
Enforcement by the EPA or by Other Parties in Federal Court Through a 
Citizen Suit

    In accordance with CAA section 302(k), SIPs must contain emission 
limitations that ``limit the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis.'' All of the 
specific requirements of a SIP emission limitation must be discernible 
in the SIP, for clarity preferably within a single section or 
provision; must meet the applicable substantive and stringency 
requirements of the CAA; and must be legally and practically 
enforceable.
    To the extent that a SIP provision allows any period of time when a 
source is not subject to any requirement that limits emissions, the 
requirements limiting the source's emissions by definition cannot do so 
``on a continuous basis.'' Such a source would not be subject to an 
``emission limitation,'' as required by the definition of that term 
under section 302(k). However, the CAA allows SIP provisions that 
include numerical limitations, specific technological control 
requirements and/or work practice requirements that limit emissions 
during startup and shutdown as components of a continuously applicable 
emission limitation, as discussed in section XI.C of this document.
    Accordingly, automatic or discretionary exemption provisions 
applicable during SSM events are impermissible in SIPs. This 
impermissibility applies even for ``brief'' exemptions from limits on 
emissions, because such exemptions nevertheless render the limitation 
noncontinuous. Furthermore, the fact that a SIP provision includes 
prerequisites to qualifying for an SSM exemption does not mean those 
prerequisites are themselves an ``alternative emission limitation'' 
applicable during SSM events.
    Automatic exemptions. A typical SIP provision that includes an 
impermissible automatic exemption would provide that a source has to 
meet a specific emission limitation during all modes of operation 
except startup, shutdown and malfunction; by definition any excess 
emissions during such events would not be violations and thus there 
could be no enforcement based on those excess emissions. With respect 
to automatic exemptions from emission limitations in SIPs, the EPA's 
longstanding interpretation of the CAA is that such exemptions are 
impermissible because they are inconsistent with the fundamental 
requirements of the CAA. Automatic exemptions from otherwise applicable 
emission limitations render those emission limitations less than 
continuous as required by CAA sections 302(k), 110(a)(2)(A) and 
110(a)(2)(C), thereby inconsistent with a fundamental requirement of 
the CAA and thus substantially inadequate as contemplated in CAA 
section 110(k)(5).
    Discretionary exemptions. A typical SIP provision that includes an 
impermissible ``director's discretion'' component would purport to 
authorize air agency personnel to modify existing SIP requirements 
under certain conditions, e.g., to grant a variance from an otherwise 
applicable emission limitation if the source could not meet the 
requirement in certain circumstances.\406\ Director's discretion 
provisions operate to allow air agency personnel to make unilateral 
decisions on an ad hoc basis, up to and including the granting of 
complete exemptions for

[[Page 33978]]

emissions during SSM events, thereby negating any possibility of 
enforcement for what would be violations of the otherwise applicable 
emission limitation. With respect to such director's discretion 
provisions in SIPs, the EPA interprets the CAA to prohibit these if 
they provide unbounded discretion to allow what would amount to a case-
specific revision of the SIP without meeting the statutory requirements 
of the CAA for SIP revisions. In particular, the EPA interprets the CAA 
to preclude SIP provisions that provide director's discretion authority 
to create discretionary exemptions for violations when the CAA would 
not allow such exemptions in the first instance.
---------------------------------------------------------------------------

    \406\ The EPA notes that problematic ``director's discretion'' 
provisions are not limited only to those that purport to authorize 
alternative emission limitations from those required in a SIP. Other 
problematic director's discretion provisions include those that 
purport to provide for discretionary changes to other substantive 
requirements of the SIP, such as applicability, operating 
requirements, recordkeeping requirements, monitoring requirements, 
test methods or alternative compliance methods.
---------------------------------------------------------------------------

    If an air agency elects to have SIP provisions that contain a 
director's discretion feature, then to be consistent with CAA 
requirements the provisions must be structured so that any resulting 
variances or other deviations from the emission limitation or other SIP 
requirements have no federal law validity, unless and until the EPA 
specifically approves that exercise of the director's discretion as a 
SIP revision. Barring such a later ratification by the EPA through a 
SIP revision, the exercise of director's discretion is only valid for 
state (or tribal) law purposes and would have no bearing in the event 
of an action to enforce the provision of the SIP as it was originally 
approved by the EPA.
    Adoption of the EPA's NSPS or NESHAP that have not yet been 
revised. The EPA has recently begun revising and will continue to 
revise NSPS and NESHAP as needed, to make the EPA's regulations 
consistent with CAA requirements by removing exemptions and affirmative 
defense provisions applicable to SSM events, and generally on the same 
legal basis as for this action. A state should not submit an NSPS or 
NESHAP for inclusion into its SIP as an emission limitation (whether 
through incorporation by reference or otherwise) unless either: (i) 
That NSPS or NESHAP does not include an exemption or affirmative 
defense for SSM events; or (ii) the state takes action as part of the 
SIP submission to render such exemption or affirmative defense 
inapplicable to the SIP emission limitation. Because SIP provisions 
must apply continuously, including during SSM events, the EPA can no 
longer approve SIP submissions that include any emission limitations 
with such exemptions, even if those emission limitations are NSPS or 
NESHAP regulations that the EPA has not yet revised to make consistent 
with CAA requirements. Alternatively, states may elect to adopt an 
existing NSPS or NESHAP as a SIP provision, so long as the SIP 
provision excludes the exemption or affirmative defense applicable to 
SSM events.\407\ States may also wish to replace the SSM exemption in 
NSPS or NESHAP regulations with appropriately developed alternative 
emission limitations that apply during startup and shutdown in lieu of 
the SSM exemption. Otherwise, the EPA's approval of the deficient SSM 
exemption provisions into the SIP would contravene CAA requirements for 
SIP provisions and would potentially result in misinterpretation or 
misapplication of the standards by regulators, regulated entities, 
courts and members of the public. The EPA emphasizes that the inclusion 
of an NSPS or NESHAP as an emission limitation in a state's SIP is 
different and distinct from reliance on such standards indirectly, such 
as reliance on the NSPS or NESHAP as a source of emission reductions 
that may be taken into account for SIP planning purposes in emissions 
inventories or attainment demonstrations. For those uses, states may 
continue to rely on the EPA's NSPS and NESHAP regulations, even those 
that have not yet been revised to remove inappropriate exemptions, in 
accordance with the requirements applicable to those SIP planning 
functions.
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    \407\ Under CAA section 116, states have the explicit general 
authority to regulate more stringently than the EPA. Indeed, under 
section 116 states can regulate sources subject to EPA regulations 
promulgated under section 111 or section 112 so long as they do not 
regulate them less stringently. According, the EPA believes that 
states may elect to adopt EPA regulations under section 111 or 
section 112 as SIP provisions and expressly eliminate the exemptions 
for emissions during SSM events.
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    Other modes of normal operation. SIPs also may not create automatic 
or discretionary exemptions from otherwise applicable emission 
limitations during periods such as ``maintenance,'' ``load change,'' 
``soot-blowing,'' ``on-line operating changes'' or other similar normal 
modes of operation. Like startup and shutdown, the EPA considers all of 
these to be modes of normal operation at a source, for which the source 
can be designed, operated and maintained in order to meet an applicable 
emission limitations and during which the source should be expected to 
control and minimize emissions. Excess emissions that occur during 
planned and predicted periods should be treated as violations of 
applicable emission limitations. Accordingly, exemptions for emissions 
during these periods of normal source operation are not consistent with 
CAA requirements.
    It may be appropriate for an air agency to establish an alternative 
numerical limitation or other form of control measure that applies 
during these modes of source operation, as for startup and shutdown 
events, but any such alternative emission limitation should be 
developed using the same criteria that the EPA recommends for 
alternative emission limitations applicable during startup and 
shutdown. Similarly, any SIP provision that includes an emission 
limitation for sources that includes alternative emission limitations 
applicable to modes of operation such as ``maintenance,'' ``load 
change,'' ``soot-blowing'' or ``on-line operating changes'' must also 
meet the applicable level of stringency for that type of emission 
limitation and be practically and legally enforceable.

C. Emission Limitations in SIPs May Contain Components Applicable to 
Different Modes of Operation That Take Different Forms, and Numerical 
Emission Limitations May Have Differing Levels and Forms for Different 
Modes of Operation

    There are approaches other than exemptions that would be consistent 
with CAA requirements for SIP provisions that states can use to address 
excess emissions during certain events. While automatic exemptions and 
director's discretion exemptions from otherwise applicable emission 
limitations for SSM events are not consistent with the CAA, SIPs may 
include criteria and procedures for the use of enforcement discretion 
by air agency personnel, as described in section XI.E of this document. 
Similarly, SIPs may, rather than exempt excess emissions, include 
emission limitations that subject those emissions to alternative 
numerical limitations or other control requirements during startup and 
shutdown events or other normal modes of operation, so long as those 
components of the emission limitations meet applicable CAA requirements 
and are legally and practically enforceable.
    The EPA does not interpret section 110(a)(2) or section 302(k) to 
require that an emission limitation in a SIP provision be composed of a 
single, uniformly applicable numerical emission limitation. The text of 
section 110(a)(2) and section 302(k) does not require states to impose 
emission limitations that include a static, inflexible standard. The 
critical aspect for purposes of section 302(k) is that the SIP 
provision impose limits on emissions on a continuous basis, regardless 
of whether the emission

[[Page 33979]]

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

[[Page 33980]]

shutdown. In general, the EPA believes that a legally and practically 
enforceable alternative emission limitation applicable during startup 
and shutdown should be expressed as a numerical limitation, a specific 
technological control requirement or a specific work practice 
applicable to affected sources during specifically defined periods or 
modes of operation. Accordingly, while states are free to include 
general-duty provisions in their SIPs as separate additional 
requirements, for example, to ensure that owners and operators act 
consistent with reasonable standards of care, the EPA does not 
recommend using these background standards to bridge unlawful 
interruptions in an emission limitation.\410\
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    \410\ For example, the EPA has concerns the some general-duty 
provisions, if at any point relied upon as the sole requirement 
purportedly limiting emissions, could undermine the ability to 
ensure compliance with SIP emission limitations relied on to achieve 
the NAAQS and other relevant CAA requirements at all times. See 
section 110(a)(2)(A), (C); US Magnesium, LLC v. EPA, 690 F.3d 1157, 
1161-62 (10th Cir. 2012).
---------------------------------------------------------------------------

D. Recommendations for Development of Alternative Emission Limitations 
Applicable During Startup and Shutdown

    A state can develop special, alternative emission limitations that 
apply during startup or shutdown if the source cannot meet the 
otherwise applicable emission limitation in the SIP. SIP provisions may 
include alternative emission limitations for startup and shutdown as 
part of a continuously applicable emission limitation when properly 
developed and otherwise consistent with CAA requirements. However, if a 
non-numerical requirement does not itself (or in combination with other 
components of the emission limitation) limit the quantity, rate or 
concentration of air pollutants on a continuous basis, then the non-
numerical standard (or overarching requirement) does not meet the 
statutory definition of an emission limitation under section 302(k).
    In cases in which measurement of emissions during startup and/or 
shutdown is not reasonably feasible, it may be appropriate for an 
emission limitation to include as a component a control for startup 
and/or shutdown periods other than a numerically expressed emission 
limitation.
    The federal NESHAP and NSPS regulations and the technical materials 
in the public record for those rules may provide assistance for states 
as they develop and consider emission limitations and alternative 
emission limitations for sources in their states, and definitions of 
startup and shutdown events and work practices for them found in these 
regulations may be appropriate for adoption by the state in certain 
circumstances. In particular, the NSPS regulations should provide very 
relevant information for sources of the same type, size and control 
equipment type, even if the sources were not constructed or modified 
within a date range that would make them subject to the NSPS. The EPA 
therefore encourages states to explore these approaches.
    The EPA recommends that, in order to be approvable (i.e., meet CAA 
requirements), alternative requirements applicable to the source during 
startup and shutdown should be narrowly tailored and take into account 
considerations such as the technological limitations of the specific 
source category and the control technology that is feasible during 
startup and shutdown. The EPA recommends the following seven specific 
criteria as appropriate considerations for developing emission 
limitations in SIP provisions that apply during startup and shutdown:
    (1) The revision is limited to specific, narrowly defined source 
categories using specific control strategies (e.g., cogeneration 
facilities burning natural gas and using selective catalytic 
reduction);
    (2) Use of the control strategy for this source category is 
technically infeasible during startup or shutdown periods;
    (3) The alternative emission limitation requires that the frequency 
and duration of operation in startup or shutdown mode are minimized to 
the greatest extent practicable;
    (4) As part of its justification of the SIP revision, the state 
analyzes the potential worst-case emissions that could occur during 
startup and shutdown based on the applicable alternative emission 
limitation;
    (5) The alternative emission limitation requires that all possible 
steps are taken to minimize the impact of emissions during startup and 
shutdown on ambient air quality;
    (6) The alternative emission limitation requires that, at all 
times, the facility is operated in a manner consistent with good 
practice for minimizing emissions and the source uses best efforts 
regarding planning, design, and operating procedures; and
    (7) The alternative emission limitation requires that the owner or 
operator's actions during startup and shutdown periods are documented 
by properly signed, contemporaneous operating logs or other relevant 
evidence.
    If a state elects to create an emission limitation with different 
levels of control applicable during specifically defined periods of 
startup and shutdown than during other normal modes of operation, then 
the resulting emission limitation must meet the substantive 
requirements applicable to the type of SIP provision at issue, meet the 
applicable level of stringency for that type of emission limitation and 
be legally and practically enforceable. Alternative emission 
limitations applicable during startup and shutdown cannot allow an 
inappropriately high level of emissions or an effectively unlimited or 
uncontrolled level of emissions, as those would constitute 
impermissible de facto exemptions for emissions during certain modes of 
operation.

E. Enforcement Discretion Provisions

    One approach other than exemptions that would be consistent with 
CAA requirements for SIP provisions that states can use to address 
excess emissions during SSM events is to include in the SIP criteria 
and procedures for the use of enforcement discretion by air agency 
personnel. SIPs may contain such provisions concerning the exercise of 
discretion by the air agency's own personnel, but such provisions 
cannot bar enforcement by the EPA or by other parties through a citizen 
suit.
    Pursuant to the CAA, all parties with authority to bring an 
enforcement action to enforce SIP provisions (i.e., the state, the EPA 
or any parties who qualify under the citizen suit provision of section 
304) have enforcement discretion that they may exercise as they deem 
appropriate in any given circumstances. For example, if the event that 
causes excess emissions is an actual malfunction that occurred despite 
reasonable care by the source operator to avoid malfunctions, then each 
of these parties may decide that no enforcement action is warranted. In 
the event that any party decides that an enforcement action is 
warranted, then it has enforcement discretion with respect to what 
remedies to seek from the court for the violation (e.g., injunctive 
relief, compliance order, monetary penalties or all of the above), as 
well as the type of injunctive relief and/or amount of monetary 
penalties sought.\411\
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    \411\ The EPA notes that only the state and the Agency have 
authority to seek criminal penalties for knowing and intentional 
violation of CAA requirements. The EPA has this explicit authority 
under CAA section 113(c).
---------------------------------------------------------------------------

    As part of state programs governing enforcement, states can include 
regulatory provisions or may adopt policies setting forth criteria for 
how they plan to exercise their own

[[Page 33981]]

enforcement authority. Under section 110(a)(2), states must have 
adequate authority to enforce provisions adopted into the SIP, but 
states can establish criteria for how they plan to exercise that 
authority. Such enforcement discretion provisions cannot, however, 
impinge upon the enforcement authority of the EPA or of others pursuant 
to the citizen suit provision of the CAA. Such enforcement discretion 
provisions in a SIP would be inconsistent with the enforcement 
structure provided in the CAA. Specifically, the statute provides 
explicit independent enforcement authority to the EPA under CAA section 
113 and to citizens under CAA section 304. Thus, the CAA contemplates 
that the EPA and citizens have authority to pursue enforcement for a 
violation even if the state elects not to do so. The EPA and citizens, 
and any federal court in which they seek to pursue an enforcement claim 
for violation of SIP requirements, must retain the authority to 
evaluate independently whether a source's violation of an emission 
limitation warrants enforcement action. Potential for enforcement by 
the EPA or through a citizen suit provides an important safeguard in 
the event that the state lacks resources or ability to enforce 
violations and provides additional deterrence. Accordingly, a SIP 
provision that operates at the state's election to eliminate the 
authority of the EPA or the public to pursue enforcement actions in 
federal court would undermine the enforcement structure of the CAA and 
would thus be substantially inadequate to meet fundamental requirements 
of the CAA.
    Also, states should not adopt overly broad enforcement discretion 
provisions for inclusion in their SIPs, even for their own personnel. 
Section 110(a)(2) requires states to have adequate enforcement 
authority, and overly broad enforcement discretion provisions would run 
afoul of this requirement if they have the effect of precluding 
adequate state authority to enforce SIP requirements. If such 
provisions are sufficiently specific, provide for sufficient public 
process and are sufficiently bounded, so that it is possible to 
anticipate at the time of the EPA's approval of the SIP provision how 
that provision will actually be applied and the potential adverse 
impacts thereof, then such a provision might meet basic CAA 
requirements. In essence, if it is possible to anticipate and evaluate 
in advance how the exercise of enforcement discretion could affect 
compliance with other CAA requirements, then it may be possible to 
determine in advance that the preauthorized exercise of director's 
discretion will not interfere with other CAA requirements, such as 
providing for attainment and maintenance of the NAAQS.
    When using enforcement discretion in determining whether an 
enforcement action is appropriate in the case of excess emissions 
during a malfunction, satisfaction of the following criteria should be 
considered:
    (1) To the maximum extent practicable the air pollution control 
equipment, process equipment or processes were maintained and operated 
in a manner consistent with good practice for minimizing emissions;
    (2) Repairs were made in an expeditious fashion when the operator 
knew or should have known that applicable emission limitations were 
being exceeded. Off-shift labor and overtime were utilized, to the 
extent practicable, to ensure that such repairs were made as 
expeditiously as practicable;
    (3) The amount and duration of the excess emissions (including any 
bypass) were minimized to the maximum extent practicable during periods 
of such emissions;
    (4) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality; and
    (5) The excess emissions are not part of a recurring pattern 
indicative of inadequate design, operation or maintenance.

F. Affirmative Defense Provisions in SIPs

    The EPA believes that SIP provisions that function to alter the 
jurisdiction or discretion of the federal courts under CAA section 113 
and section 304 to determine liability and to impose remedies are 
inconsistent with fundamental legal requirements of the CAA, especially 
with respect to the enforcement regime explicitly created by statute. 
Affirmative defense provisions by their nature purport to limit or 
eliminate the authority of federal courts to find liability or to 
impose remedies through factual considerations that differ from, or are 
contrary to, the explicit grants of authority in section 113(b) and 
section 113(e). These provisions are not appropriate under the CAA, no 
matter what type of event they apply to, what criteria they contain or 
what forms of remedy they purport to limit or eliminate.
    Section 113(b) provides courts with explicit jurisdiction to 
determine liability and to impose remedies of various kinds, including 
injunctive relief, compliance orders and monetary penalties, in 
judicial enforcement proceedings. This grant of jurisdiction comes 
directly from Congress, and the EPA is not authorized to alter or 
eliminate this jurisdiction under the CAA or any other law. With 
respect to monetary penalties, CAA section 113(e) explicitly includes 
the factors that federal courts and the EPA are required to consider in 
the event of judicial or administrative enforcement for violations of 
CAA requirements, including SIP provisions. Because Congress has 
already given federal courts the jurisdiction to determine what 
monetary penalties are appropriate in the event of judicial enforcement 
for a violation of a SIP provision, neither the EPA nor states can 
alter or eliminate that jurisdiction by superimposing restrictions on 
that jurisdiction and discretion granted by Congress to the courts. 
Accordingly, pursuant to section 110(k) and section 110(l), the EPA 
cannot approve any such affirmative defense provision in a SIP. If such 
an affirmative defense provision is included in an existing SIP, the 
EPA has authority under section 110(k)(5) to require a state to remove 
that provision.
    Couching an affirmative defense provision in terms of merely 
defining whether the emission limitation applies and thus whether there 
is a ``violation,'' as suggested by some commenters, is also 
problematic. If there is no ``violation'' when certain criteria or 
conditions for an ``affirmative defense'' are met, then there is in 
effect no emission limitation that applies when the criteria or 
conditions are met; the affirmative defense thus operates to create an 
exemption from the emission limitation. As explained in the February 
2013 proposal, the CAA requires that emission limitations must apply 
continuously and cannot contain exemptions, conditional or otherwise. 
This interpretation is consistent with the decision in Sierra Club v. 
Johnson concerning the term ``emission limitation'' in section 
302(k).\412\ Characterizing the exemptions as an ``affirmative 
defense'' runs afoul of the requirement that emission limitations must 
apply continuously.
---------------------------------------------------------------------------

    \412\ 551 F.3d 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    The EPA wishes to be clear that the absence of affirmative defense 
provisions in SIPs does not alter the legal rights of sources under the 
CAA. In the event of an enforcement action for an exceedance of a SIP 
emission limitation, a source can elect to assert any common law or 
statutory defenses that it determines are supported, based upon the 
facts and circumstances surrounding the alleged violation.

[[Page 33982]]

Under section 113(b), courts have explicit authority to impose 
injunctive relief, issue compliance orders, assess monetary penalties 
or fees and impose any other appropriate relief. Under section 113(e), 
federal courts are required to consider the enumerated statutory 
factors when assessing monetary penalties, including ``such other 
factors as justice may require.'' For example, if the exceedance of the 
SIP emission limitation occurs due to a malfunction, that exceedance is 
a violation of the applicable emission limitation but the source 
retains the ability to defend itself in an enforcement action and to 
oppose the imposition of particular remedies or to seek the reduction 
or elimination of monetary penalties, based on the specific facts and 
circumstances of the event. Thus, elimination of a SIP affirmative 
defense provision that purported to take away the statutory 
jurisdiction of the federal court to exercise its authority to impose 
remedies does not disarm sources in potential enforcement actions. 
Sources retain all of the equitable arguments they could have made 
under an affirmative defense provision; they must simply make such 
arguments to the reviewing court as envisioned by Congress in section 
113(b) and section 113(e).
    Once impermissible SSM exemptions are removed from the SIP, then 
any excess emissions during such events may be the subject of an 
enforcement action, in which the parties may use any appropriate 
evidence to prove or disprove the existence and scope of the alleged 
violation and the appropriate remedy for an established violation. Any 
alleged violation of an applicable SIP emission limitation, if not 
conceded by the source, must be established by the party bearing the 
burden of proof in a legal proceeding. The degree to which evidence of 
an alleged violation may derive from a specific reference method or any 
other credible evidence must be determined based upon the facts and 
circumstances of the exceedance of the emission limitation at 
issue.\413\ Congress vested the federal courts with the authority to 
judge how best to weigh the evidence in an enforcement action.
---------------------------------------------------------------------------

    \413\ For example, the degree to which data from continuous 
opacity monitoring systems (COMS) is evidence of violations of SIP 
opacity or PM mass emission limitations is a factual question that 
must be resolved on the facts and circumstances in the context of an 
enforcement action. See, e.g., Sierra Club v. Pub. Serv. Co. of 
Colorado, Inc., 894 F.Supp. 1455 (D. Colo. 1995) (allowing use of 
COMS data to prove opacity limit violations).
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G. Anti-Backsliding Considerations

    The EPA recognizes that one important consideration for air 
agencies as they evaluate how best to revise their SIP provisions in 
response to this SIP call is the nature of the analysis that will be 
necessary for the resulting SIP revisions under section 110(k)(3), 
section 110(l) and section 193. Under section 110(l), the EPA is 
prohibited from approving any SIP revision that would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other requirements of the CAA. Section 193 prohibits 
states from modifying regulations in place prior to November 15, 1990, 
unless the modification ensures equivalent or greater reductions of the 
pollutant. SIP revision must be evaluated for compliance with section 
110(l) and section 193 on the facts and circumstances of the specific 
revision. Section X of this document provides three example scenarios 
in which a state might remove an impermissible SSM provision from its 
SIP, including how sections 110(l) and 193 considerations might apply. 
These examples are intended to provide general guidance on the 
considerations and the nature of the analysis that may be appropriate 
for different types of SIP revisions. Air agencies should contact their 
respective EPA Regional Offices (see the SUPPLEMENTARY INFORMATION 
section of this document) for further recommendations and assistance 
concerning the analysis appropriate for specific SIP revisions 
involving changes in SSM provisions.

XII. Environmental Justice Consideration

    The final action restates the EPA's interpretation of the statutory 
requirements of the CAA. Through the SIP calls issued to certain states 
as part of this SIP call action under CAA section 110(k)(5), the EPA is 
only requiring each affected state to revise its SIP to comply with 
existing requirements of the CAA. The EPA's action therefore leaves to 
each affected state the choice as to how to revise the SIP provision in 
question to make it consistent with CAA requirements and to determine, 
among other things, which of the several lawful approaches to the 
treatment of excess emissions during SSM events will be applied to 
particular sources. The EPA has not performed an environmental justice 
analysis for purposes of this action, because it cannot geographically 
locate or quantify the resulting source-specific emission reductions. 
Nevertheless, the EPA believes this action will provide environmental 
protection for all areas of the country.

XIII. References

    The following is a list of documents that are specifically 
referenced in this document. Some listed documents also include a 
document ID number associated with the docket for this rulemaking.

1. 1982 SSM Guidance (Memorandum to Regional Administrators, Region 
I-X from Kathleen M. Bennett, Assistant Administrator for Air, Noise 
and Radiation, Subject: Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions, dated September 28, 1982), 
EPA-HQ-OAR-2012-0322-0005.
2. 1983 SSM Guidance (Memorandum to Regional Administrators, Region 
I-X from Kathleen M. Bennett, Assistant Administrator for Air, Noise 
and Radiation, Subject: Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions, dated February 15, 1983), 
EPA-HQ-OAR-2012-0322-0006.
3. 1999 SSM Guidance (Memorandum to EPA Regional Administrators, 
Regions I-X from Steven A. Herman and Robert Perciasepe, USEPA, 
Subject: State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown, dated 
September 20, 1999), EPA-HQ-OAR-2012-0322-0007.
4. 2001 SSM Guidance (Memorandum to EPA Regional Administrators, 
Regions I-X from Eric Schaeffer, Director, Office of Regulatory 
Enforcement, Office of Enforcement and Compliance Assurance, and 
John S. Seitz, Director, Office of Air Quality Planning and 
Standards, Office of Air and Radiation, dated December 5, 2001), 
EPA-HQ-OAR-2012-0322-0038.
5. ``Action to Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call; Final rule,'' 75 FR 77698 (December 13, 2010), EPA-HQ-OAR-
2012-0322-0014.
6. Am. Farm Bureau Fedn v. United States EPA, 984 F.Supp.2d 289 
(M.D. Pa. 2013).
7. Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 2001).
8. Appalachian Power Co. v. EPA, 251 F.3d 1026 (D.C. Cir. 2001).
9. ``Approval and Disapproval and Promulgation of Air Quality 
Implementation Plans; Colorado; Revisions to Regulation 1; Notice of 
proposed rulemaking,'' 75 FR 42342 (July 21, 2010), EPA-HQ-OAR-2012-
0322-0015, finalized as proposed at 76 FR 4540 (January 26, 2011), 
EPA-HQ-OAR-2012-0322-0016.
10. ``Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Reasonably Available Control Technology for the 1997 
8-Hour Ozone Standard; Direct final rule,'' 77 FR 66388 (November 5, 
2012).

[[Page 33983]]

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

[[Page 33984]]

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

XIV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a ``significant regulatory action'' that was 
submitted to the Office of Management and Budget (OMB) for review 
because it raises novel legal or policy issues. Any changes made in 
response to OMB recommendations have been documented in the docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. This action merely reiterates the EPA's interpretation of the 
statutory requirements of the CAA and does not require states to 
collect any additional information. Through the SIP calls issued to 
certain states as part of this action under CAA section 110(k)(5), the 
EPA is only requiring each affected state to revise its SIP to comply 
with existing requirements of the CAA.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. Any agency may certify that 
a rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to this rule. This action

[[Page 33985]]

will not impose any requirements on small entities. Instead, the action 
merely reiterates the EPA's interpretation of the statutory 
requirements of the CAA. Through the SIP calls issued to certain states 
as part of this SIP call action under CAA section 110(k)(5), the EPA is 
only requiring each affected state to revise its SIP to comply with 
existing requirements of the CAA. The EPA's action therefore leaves to 
each affected state the choice as to how to revise the SIP provision in 
question to make it consistent with CAA requirements and to determine, 
among other things, which of the several lawful approaches to the 
treatment of excess emissions during SSM events will be applied to 
particular sources.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any federal mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no new enforceable duty on any 
state, local or tribal governments or the private sector. The 
regulatory requirements of this action apply to certain states for 
which the EPA is issuing a SIP call. To the extent that such affected 
states allow local air districts or planning organizations to implement 
portions of the state's obligation under the CAA, the regulatory 
requirements of this action do not significantly or uniquely affect 
small governments because those governments have already undertaken the 
obligation to comply with the CAA.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. In this action, the EPA is not addressing any 
tribal implementation plans. This action is limited to states. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because, in prescribing the EPA's action for 
states regarding their obligations for SIPs under the CAA, it 
implements specific standards established by Congress in statutes.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This action merely prescribes the EPA's 
action for states regarding their obligations for SIPs under the CAA.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations. The action is intended to ensure that all 
communities and populations across the affected states, including 
minority, low-income and indigenous populations overburdened by 
pollution, receive the full human health and environmental protection 
provided by the CAA. This action concerns states' obligations regarding 
the treatment they give, in rules included in their SIPs under the CAA, 
to excess emissions during startup, shutdown and malfunctions. This 
action requires that certain states bring their treatment of these 
emissions into line with CAA requirements, which will lead to certain 
sources' having greater incentives to control emissions during such 
events.

K. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(V), the Administrator determines 
that this action is subject to the provisions of section 307(d). 
Section 307(d) establishes procedural requirements specific to 
rulemaking under the CAA. Section 307(d)(1)(V) provides that the 
provisions of section 307(d) apply to ``such other actions as the 
Administrator may determine.''

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

XV. Judicial Review

    The Administrator determines that this action is ``nationally 
applicable'' within the meaning of section 307(b)(1) of the CAA. This 
action in scope and effect extends to numerous judicial circuits 
because the action on the Petition extends to states throughout the 
country. In these circumstances, section 307(b)(1) and its legislative 
history authorize the Administrator to find the action to be of 
``nationwide scope or effect'' and thus to indicate the venue for 
challenges to be in the D.C Circuit. Thus, any petitions for review 
must be filed in the U.S. Court of Appeals for the District of Columbia 
Circuit.
    In addition, pursuant to CAA section 307(d)(1)(V), the EPA is 
determining that this rulemaking action is subject to the requirements 
of section 307(d), which establish procedural requirements specific to 
rulemaking under the CAA. In the event there is a judicial challenge to 
this action and a court determines that the EPA has erred with respect 
to any portion of this action, the EPA intends the components of this 
action to be severable.

XVI. Statutory Authority

    The statutory authority for this action is provided by CAA section 
101 et seq. (42 U.S.C. 7401 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Affirmative defense, Air pollution 
control, Carbon dioxide, Carbon dioxide equivalents, Carbon monoxide, 
Excess emissions, Greenhouse gases, Hydrofluorocarbons, Incorporation 
by reference, Intergovernmental relations, Lead, Methane, Nitrogen 
dioxide, Nitrous oxide, Ozone, Particulate matter, Perfluorocarbons, 
Reporting and recordkeeping requirements, Startup, shutdown and 
malfunction, State implementation plan, Sulfur hexafluoride, Sulfur 
oxides, Volatile organic compounds.

    Dated: May 22, 2015.
Gina McCarthy,
Administrator.
[FR Doc. 2015-12905 Filed 6-11-15; 8:45 am]
 BILLING CODE 6560-50-P