[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:
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Contact for Regional
Office (person,
EPA Regional Office mailing address, State
telephone number)
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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
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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\
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\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.
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\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.
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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\
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\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).
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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.''
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\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.
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\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.
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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\
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\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).
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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\
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\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.
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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.
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\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.
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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\
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\23\ Petition at 11.
\24\ Id.
\25\ Petition at 12.
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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.
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[[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\
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\29\ Petition at 11.
\30\ Petition at 11.
\31\ See February 2013 proposal, 78 FR 12459 at 12468 (February
22, 2013).
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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.
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\32\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
\33\ See SNPR, 79 FR 55919 (September 17, 2014).
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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\
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\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.
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\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).
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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.
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\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.
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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.
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\38\ See 79 FR 55929-30; 55931-34.
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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.
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\39\ SNPR, 79 FR 55919 at 55932.
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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\
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\40\ CAA section 307(b)(1).
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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.
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\41\ 749 F.3d 1055, 1064, n.2.
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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.
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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).
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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.
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\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.
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\61\ See No. 10-60961, 2011 WL 710598 (5th Cir. Feb. 24, 2011).
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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\
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\65\ Petition at 14.
\66\ Id.
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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\
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\67\ Petition at 17.
\68\ See February 2013 proposal, 78 FR 12459 at 12473-74
(February 22, 2013).
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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.
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\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\
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\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).
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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).
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\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'').
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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\
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\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:
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\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]]
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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.
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\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.
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\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\
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\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.
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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\
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\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.
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\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.''
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\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.
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\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.
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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.
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\117\ See E.O. 13563 section 2(b) (emphasis added).
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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'').
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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.
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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.
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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.
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\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\
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\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).
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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\
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\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).
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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.
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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.
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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.
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\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).
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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.
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\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).
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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\
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\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.
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\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'').
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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\
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\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'').
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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.
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\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.
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\279\ See 1999 SSM Guidance at 3.
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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:
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\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\
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\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.
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\282\ See ``Finding of Substantial Inadequacy of Implementation
Plan; Call for Utah State Implementation Plan Revision; Proposed
rule,'' 76 FR 21639 (April 18, 2011).
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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.
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\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.
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\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).
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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\
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\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).
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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.
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\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).
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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\
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\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).
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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.
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\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.
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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).
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\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'').
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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.'').
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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.
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\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).
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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\
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\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.
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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.
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\302\ See 1999 SSM Guidance at 3.
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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\
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\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.
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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.
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\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.
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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.
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\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).
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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).
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\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\
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\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\
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\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).
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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\
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\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\
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\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.
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\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\
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\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).
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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\
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\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.
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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\
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\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.
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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.
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\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.
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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.
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\361\ 74 FR 62717 (December 1, 2009).
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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.
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\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\
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\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.
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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\
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\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.
---------------------------------------------------------------------------
\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.
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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\
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\388\ See 40 CFR 70.7(f)(1)(i).
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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.
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\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.
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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.
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\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.
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\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.
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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.
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\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.
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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.
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\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.
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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\
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\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).
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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.
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\405\ These recommendations are discussed in detail in section
VII.B.2 of this document.
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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.
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\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.
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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).
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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).
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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.
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\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]
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