Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities, 68989-69002 [2010-28135]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Rules and Regulations]
[Pages 68989-69002]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28135]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0132; FRL-9223-2]


Approval and Promulgation of Implementation Plans; Texas; Excess 
Emissions During Startup, Shutdown, Maintenance, and Malfunction 
Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing its proposal to partially approve and 
partially disapprove a revision to the Texas State Implementation Plan 
(SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) 
in a letter dated January 23, 2006 (the January 23, 2006 SIP 
submittal). Today's action finalizes our May 13, 2010 proposal that 
concerned revisions to 30 Texas Administrative Code (TAC) Chapter 101, 
General Air Quality Rules, Subchapter A General Rules; and Subchapter F 
Emissions Events and Scheduled Maintenance, Startup, and Shutdown 
Activities. We are finalizing our proposed approval of those portions 
of the rule that are consistent with the federal Clean Air Act (the Act 
or CAA), and finalizing our proposed disapproval of those portions of 
the rule that are inconsistent with the Act. More specifically, we are 
finalizing our proposed disapproval of provisions that provide for an 
affirmative defense against civil penalties for excess emissions during 
planned maintenance, startup, or shutdown activities and related 
provisions that contain nonseverable cross-references to the 
affirmative defense provision. A disapproval of these provisions means 
that an affirmative defense is not available in an enforcement action 
in Federal court to enforce the SIP for violations due to excess 
emissions during planned maintenance, startup, or shutdown activities. 
We are taking this action under section 110 of the Act.

DATES: This rule will be effective on January 10, 2011.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2006-0132. All documents in the docket are 
listed on the https://www.regulations.gov Web site. 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, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at the Air Planning Section (6PD-L), Environmental 
Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. The file will be made available by appointment for public 
inspection in the Region 6 FOIA Review Room between the hours of 8:30 
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the 
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to 
make an appointment. If possible, please make the appointment at least 
two working days in advance of your visit. There will be a 15 cent per 
page fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax 
(214) 665-7263, e-mail address shar.alan@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to EPA.

[[Page 68990]]

Table of Contents

I. What actions did we propose?
II. When did the public comment period end?
III. Who submitted comments to us?
IV. What is our final action?
V. What are the public comments and EPA's responses to them?
    A. General Comments of Support
    B. Comments Related to the SIP Stringency and CAA Section 110(l) 
Requirements
    C. Comments Related to Texas' Phase Out Approach and Disapproval 
Effects
    D. Comments Related to National Ambient Air Quality Standards 
(NAAQS), Air Quality, and State Control Options
    E. Comments Related to Technical Infeasibility and Disapproval 
Effects
    F. Comments Related to EPA Guidance and Policies and Disapproval 
Effects
    G. Comments Related to Procedural Aspects of the Rulemaking
    H. Comments Related to Interpretation of 30 TAC 101.221(d)
    I. Comments Related to Potential Enforcement Actions
    J. Comments Related to Administrative Necessity and One-Step-at-
a-Time Doctrine
    K. Comments Related to Weakening of the SIP
    L. Comments Related to Clarification Requests
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What actions did we propose?

    In EPA's May 13, 2010 proposal (75 FR 26892), we proposed to 
partially approve and partially disapprove a revision to the Texas SIP, 
as submitted to EPA on January 23, 2006. More specifically, the May 13, 
2010 proposal reflected EPA's intent to partially approve and partially 
disapprove submitted revisions to 30 TAC General Air Quality Rule 101 
into the Texas SIP, as outlined in the Table below.

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  30 TAC General Air Quality
           Rule 101             Type of action       Type of change
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Subchapter A, Section 101.1    Proposed         Revised Section.
 (Definitions).                 Approval.
Subchapter F, Section 101.201  Proposed         Revised Section.
 (Emissions Event Reporting     Approval.
 and Recordkeeping
 Requirements) \1\.
Subchapter F, Section 101.211  Proposed         Revised Section.
 (Scheduled Maintenance,        Approval.
 Startup, and Shutdown
 Reporting and Recordkeeping
 Requirements) \2\.
Subchapter F, Section 101.221  Proposed         New Section.
 (Operational Requirements).    Approval.
Subchapter F, Section 101.222  Proposed         New Section.
 (a)-(g) (Demonstrations).      Approval.
Subchapter F, Section 101.222  Proposed         New Section.
 (h)-(j) (Demonstrations).      Disapproval.
Subchapter F, Section 101.223  Proposed         New Section.
 (Actions to Reduce Excessive   Approval.
 Emissions).
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\1\ Subsequent to the proposal, TCEQ withdrew section 101.201(h) from
  EPA's review. Letter from Bryan W. Shaw, TCEQ Chairman to Alfredo
  Armendariz, EPA Region 6 Administrator, dated August 5, 2010.
\2\ Subsequent to the proposal, TCEQ withdrew section 101.211(f) from
  EPA's review. Letter from Bryan W. Shaw, TCEQ Chairman to Alfredo
  Armendariz, EPA Region 6 Administrator, dated August 5, 2010.

    Section E of the May 13, 2010 proposal (75 FR at pp. 26896-26897) 
stated EPA's reasoning for the proposal to disapprove sections 
101.222(h) (Planned Maintenance, Startup, or Shutdown Activity), 
101.222(i) (concerning effective date of permit applications), and 
101.222(j) (concerning processing of permit applications) into the 
Texas SIP. In short, we proposed to disapprove section 101.222(h) 
because it provides an affirmative defense for excess emissions during 
planned maintenance. Section 101.222(h) also provides for an 
affirmative defense for excess emissions during planned startup and 
shutdown. However, because the provisions regarding excess emissions 
during planned startup and shutdown are not severable from that for 
planned maintenance, we proposed to disapprove section 101.222(h) in 
its entirety. We further noted that a preferable means of dealing with 
excess emissions from planned startup and shutdown, in cases where 
sources are unable to comply with an applicable emission limit during 
those periods, would be to establish an alternative limit that would 
apply during startup and shutdown.
    We proposed to disapprove sections 101.222(i) and (j), which 
concern the timing and processing procedures for permits that would 
address excess emissions during periods of maintenance, startup or 
shutdown, because those provisions were not severable from section 
101.222(h). For more detail, see 75 FR 26896-26897 of the May 13, 2010 
proposal.
    We proposed to approve section 101.1 (Definitions) because it 
provides for consistency among Subchapters A and F, thereby 
facilitating implementation of the rule and other legislative changes. 
We proposed to approve section 101.201 (Emissions Event Reporting and 
Recordkeeping Requirements), because it establishes new requirements 
that local air pollution authorities be informed of excess emissions. 
We proposed to approve section 101.211 (Scheduled Maintenance, Startup, 
and Shutdown Reporting and Recordkeeping Requirements), because it 
provides for reporting and recordkeeping of the initial notification 
and final report of the scheduled maintenance, startup, and shutdown 
activities. We proposed to approve section 101.221 (Operational 
Requirements) because it provides the requirement that air pollution 
abatement equipment must be maintained and be in good working order. We 
proposed to approve section 101.222(a)-(g) (Demonstrations) because it 
provides an affirmative defense for certain emission events that is 
consistent with the interpretation of the Act as set forth in our 
guidance documents. We also proposed to approve section 101.223 
(Actions to Reduce Excessive Emissions) because it provides for a 
corrective action plan and written notification for facilities 
determined to have excessive emission events to take necessary actions 
to reduce the future occurrence of such events.

II. When did the public comment period end?

    EPA's proposed action of May 13, 2010 (75 FR 26892) provided a 30-
day public comment period. During this 30-day period we received 7 
letters requesting EPA extend the public comment period. In response, 
we extended the public comment period by two weeks, such that it closed 
on June 28, 2010, rather than June 14, 2010. See 75 FR 33220 (June 11, 
2010).

III. Who submitted comments to us?

    During the public comment period, we received written comments on 
our May 13, 2010 proposal (75 FR 26892) from the Lower Colorado River 
Authority; Texas Municipal Power Agency; National Environmental 
Development Association's Clean Air Project; Texas Industry Project; 
American Electric Power; Luminant; Utility Air Regulatory Group; Texas 
Oil and Gas Association; Texas Association of Business; Texas 
Commission on Environmental Quality; Texas Mining and Reclamation 
Association; Gulf Coast Lignite Coalition; San Miguel

[[Page 68991]]

Electric Cooperative; Association of Electric Companies of Texas; and 
Environmental Clinic--University of Texas School of Law on behalf of 
Citizens for Environmental Justice, Lone Star Chapter Sierra Club, 
Public Citizen's Texas Office, Air Alliance Houston, Environmental 
Integrity Project, and Environmental Defense Fund.

IV. What is our final action?

    Except for two provisions that were withdrawn by the State by 
letter dated August 5, 2010, as described below, we are finalizing our 
proposal to approve revisions to 30 TAC Chapter 101, Subchapter A 
General Rules; and Subchapter F Emissions Events and Scheduled 
Maintenance, Startup, and Shutdown Activities of the January 23, 2006 
SIP submittal as revisions to the federally-approved Texas SIP.
    Subsequent to the publication of the proposed rule, in a letter 
dated August 5, 2010, TCEQ notified EPA of its withdrawal from EPA 
review of sections 101.201(h) (concerning annual emissions event 
reporting) and 101.211(f) (concerning annual scheduled maintenance, 
startup, and shutdown activity reporting), as adopted by the TCEQ on 
December 14, 2005. The withdrawal of these two pieces of the submission 
does not affect our ability to take final action approving the 
remaining pieces we proposed to approve. As an initial matter, the 
withdrawn portions are independent provisions that are severable from 
the remaining regulations pending before EPA. In addition, the 
withdrawal of these provisions does not create a defect in the 
remaining portions of the rule for which we proposed approval. 
Paragraphs (a) through (g) of section 101.201 and paragraphs (a) 
through (e) of section 101.211 acted upon today contain all of the 
necessary requirements for how and when to report excess emissions 
events. TCEQ only withdrew the annual reporting requirement in the two 
paragraphs, and an annual reporting requirement is not a criterion for 
an approvable excess emissions SIP revision. Furthermore, TCEQ already 
has the ability to collect emissions information under the Texas SIP at 
the Emission Inventory Requirements in 30 TAC sections 101.10 (b) and 
(f), which require an owner or operator to submit emission inventories 
and/or related data, including excess emissions occurring during 
maintenance activities, startup and shutdowns, and upset conditions, to 
the state.\3\ Section 101.10 was approved into Texas SIP on January 26, 
1999 at 64 FR 3847.
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    \3\ Furthermore, although not included as part of the approved 
SIP, the title V deviation reporting requirements provide 
significant information to the State (which is also available to EPA 
and the public) regarding emission event violations.
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    Because the submitted rule and the Texas SIP already contain 
adequate reporting requirements for excess emissions during planned and 
unplanned startup, shutdown, maintenance and malfunction events, TCEQ's 
withdrawal of the sections referenced above does not affect our partial 
approval of the remaining portions of the rule which were proposed for 
approval. Thus, as described below, we are taking final action to 
approve all of the provisions for which we proposed approval, with the 
exception of withdrawn sections 101.201(h) and 101.211(f) of the 
January 23, 2006 SIP submittal. We have made TCEQ's August 5, 2010 
withdrawal letter available for public inspection in the docket 
associated with this action, identified as EPA-R06-OAR-2006-0132.
    In summary, we are finalizing our May 13, 2010 proposal to approve 
Subchapter A, section 101.1 (Definitions); and Subchapter F, sections 
101.201 (Emissions Event Reporting and Recordkeeping Requirements) 
(except for 101.201(h)), 101.211 (Scheduled Maintenance, Startup, and 
Shutdown Reporting and Recordkeeping Requirements) (except for 
101.211(f)), 101.221 (Operational Requirements), 101.222(a) through (g) 
(Demonstrations), and 101.223 (Actions to Reduce Excessive Emissions) 
into the Texas SIP. We are approving these provisions for the reasons 
provided in our proposed approval: They clarify existing reporting 
requirements; they clarify that the rule does not allow exemptions from 
compliance with federal requirements, including any requirements in the 
federally-approved SIP; they provide for an affirmative defense \4\ 
from unplanned startup, shutdown, or maintenance (i.e., malfunctions), 
consistent with the CAA as interpreted by EPA; and they provide for a 
corrective action plan and written notification concerning excessive 
emission events. See section D of our May 13, 2010 proposal (75 FR at 
26894).
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    \4\ An affirmative defense is defined, in the context of an 
enforcement proceeding, as 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. By demonstrating that 
the elements of an affirmative defense have been met, a source may 
avoid a civil penalty, but not injunctive relief.
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    We are also finalizing our May 13, 2010 proposal to disapprove 
sections 101.222(h) (Planned Maintenance, Startup, or Shutdown 
Activity), 101.222(i) (concerning effective date of permit 
applications), and 101.222(j) (concerning processing of permit 
applications) of the January 23, 2006 submittal. As we explain more 
fully below, we are disapproving section 101.222(h) because it provides 
an affirmative defense against penalties for excess emissions during 
planned maintenance activities. Because the portions of section 
101.222(h) that provide an affirmative defense for excess emissions 
during planned startup and shutdown are not severable from the 
provision for maintenance, those provisions are also disapproved.\5\ 
Section 101.222(i) concerns the scheduling and applicable effective 
dates for permit applications submitted to TCEQ for sources that 
request unauthorized emissions associated with the planned maintenance, 
startup, or shutdown activities be permitted. Since section 101.222(i) 
is not severable from section 101.222(h), which we are disapproving, we 
are disapproving section 101.222(i). Section 101.222(j) concerns the 
processing of permit applications referenced in 101.222(h), and 
provides the Executive Director with the authority to process, review, 
and permit unauthorized emissions from planned maintenance, startup, or 
shutdown activities. We explained our reasons for proposing to 
disapprove section 101.222(h) above. Since section 101.222(j) is not 
severable from section 101.222(h), which we are disapproving, we are 
disapproving section 101.222(j).
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    \5\ Although we interpret the Act to allow for an affirmative 
defense for excess emissions during startup and shutdown, we note 
that the current Texas rule includes a defect which could prevent 
our approval of this provision in the future if submitted in the 
same form. Specifically, instead of identifying the criteria a 
source must meet to assert an affirmative defense for planned 
activities, the Texas rule cross-references the criteria that apply 
for unplanned events. Thus, sources might argue that many of the 
criteria would not apply and would not need to be proved when 
asserting an affirmative defense. The criteria that a source must 
prove in asserting a defense are critical for ensuring that the 
defense will not be abused. Thus, any future rule submitted by the 
State must be clear about the applicable criteria that apply and 
those criteria must ensure that, among other things, excess 
emissions were not due to inadequate design, that the facility was 
operated consistent with good practices for minimizing emissions and 
the frequency and duration of operation in startup or shutdown mode 
was minimized. See the 1999 Policy at 6.
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    In light of the comments received on this action, we provide in 
more detail here our rationale for our final action

[[Page 68992]]

disapproving that provision. EPA's interpretation of the CAA is that it 
is not appropriate for SIPs to exempt periods of startup, shutdown, 
maintenance or malfunction from compliance with applicable emission 
limits. This is supported by the definition of ``emission limitation'' 
in section 302(k) of the Act, which requires emissions be limited on a 
``continuous'' basis. In addition, we have noted that because SIPs are 
used to demonstrate how an area will attain and maintain health-based 
standards, it is not appropriate to exempt any periods of operation 
from compliance with the limits relied on to demonstrate that public 
health will be protected. We recognize that courts have disagreed 
whether it may be appropriate to provide for certain exceptions from 
compliance with emission limits when setting technology based 
standards. Mossville Environmental Action Now v. EPA, 370 F.3d 1232, 
1242 (DC Cir. 2004) (upholding, as reasonable, standards that had 
factored in variability of emissions under all operating conditions). 
See, Weyerhaeuser v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (``In 
the nature of things, no general limit, individual permit, or even any 
upset provision can anticipate all upset situations. After a certain 
point, the transgression of regulatory limits caused by `uncontrollable 
acts of third parties,' such as strikes, sabotage, operator 
intoxication or insanity, and a variety of other eventualities, must be 
a matter for the administrative exercise of case-by-case enforcement 
discretion, not for specification in advance by regulation.''). 
Although one might argue that it is appropriate to account for such 
variability in technology-based standards, EPA's longstanding position 
has been that it is not appropriate to provide exemptions from 
compliance with emission limits in SIPs that are developed for the 
purpose of demonstrating how to attain and maintain the public health-
based NAAQS. For purposes of demonstrating attainment and maintenance, 
States assume source compliance with emission limitations at all times. 
Thus, broad provisions that would exempt compliance during periods of 
startup, shutdown, malfunction and/or maintenance would undermine the 
integrity of the SIP. Recently, in the context of the CAA section 112 
program regulating emissions of hazardous air pollutants, the court in 
Sierra Club v. EPA, 551 F.3d 1019 (DC Cir. 2008), cert. denied, 130 S. 
Ct. 1735 (U.S. 2010), held that the CAA section 302(k) definition of 
emission standard or emission limitation in conjunction with the 
provisions of section 112 require continuous compliance with section 
112-compliant standards. We believe that this case supports EPA's long-
standing interpretation in the SIP context that it is inappropriate to 
exempt periods of startup, shutdown and malfunction and/or maintenance 
from compliance with emission limitations.
    Although EPA has long interpreted the CAA to bar States from 
including exemptions from compliance with applicable emission 
limitations during periods of startup, shutdown, maintenance and 
malfunction, we have also recognized that sources may, despite good 
practices, be unable to meet emission limitations during periods of 
startup and shutdown and, that despite good operating practices, 
sources may suffer a malfunction due to events beyond the control of 
the owner or operator. EPA's early policies provided that these events 
should be addressed through enforcement discretion. See the memorandum 
dated September 28, 1982, from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation entitled ``Policy on Excess 
Emissions During Startup, Shutdown, Maintenance, and Malfunctions'' 
(1982 Policy); and EPA's clarification to the above policy memorandum 
dated February 15, 1983, from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise, and Radiation (1983 Policy). Later, in 
practice, and then as reflected in a 1999 Policy memorandum, EPA 
adopted an interpretation of the Act that would allow sources to assert 
an affirmative defense to periods of excess emissions during startup, 
shutdown and malfunction in an enforcement action for penalties, though 
not in an action for injunctive relief. As explained in the 1999 
Policy, in the course of an enforcement action for penalties, a source 
could assert the affirmative defense and the burden would be on the 
source to prove enumerated factors, including that the period of excess 
emissions was minimized to the extent practicable and that the 
emissions were not due to faulty operations or disrepair of 
equipment.\6\
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    \6\ More recently, and consistent with an additional approach 
discussed in the 1999 Policy (at 4-5), with respect to planned 
startup and shutdown events, EPA has encouraged States to address 
planned startup and shutdown in their SIPs. For those sources and 
source categories where compliance with the applicable limit is not 
possible during startup and/or shutdown, the State should develop 
alternative, applicable emission limits for such events, which they 
can consider in SIPs demonstrating attainment and maintenance of the 
NAAQS. As part of its justification of the SIP revision and in order 
to address potential impacts on attainment and maintenance of the 
NAAQS, the State should analyze the impact of the potential worst-
case emissions that could be anticipated to occur during startup and 
shutdown.
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    The criteria a source must prove when asserting an affirmative 
defense, as provided in the 1999 Policy, are consistent with the 
criteria identified in section 113(e) of the CAA that the courts and 
EPA may consider in determining whether to assess a penalty (and, if 
so, what amount) in the context of an enforcement action. Our goal in 
developing the criteria recommended in the 1999 Policy was to provide 
an avenue for relief from penalties for actions that are outside the 
control of an owner or operator who is making best efforts to operate 
consistent with applicable requirements. In other words, we believe it 
is important to tailor the factors so that they encourage sources to 
make best efforts to comply with emission limits that are intended to 
bring an area into attainment with and to maintain health-based air 
quality standards. We believe, however, that maintenance activities can 
and should be scheduled during process shutdowns. To the extent they 
are not, the source should ensure that control equipment can be 
consistently effective during maintenance activities. Thus, we do not 
believe that an affirmative defense for excess emissions during planned 
maintenance is appropriate since there should not be circumstances 
during which a source should exceed emission limits during 
maintenance.\7\ Although we do not believe it is appropriate to approve 
an affirmative defense for excess emissions during maintenance into the 
SIP, section 113(e) of the Act still provides that a source may raise 
factors in an enforcement action that the Administrator or a court may 
consider in determining an appropriate penalty.
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    \7\ We note that if excess emissions occur during maintenance 
and because of a malfunction, the affirmative defense for 
malfunctions might be available to the source for such maintenance 
activity as part of the broader malfunction event.
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    We note that States are not required to provide an affirmative 
defense approach, but, if they choose to do so, EPA will evaluate the 
State's submitted rules to ensure they meet the requirements of the Act 
as interpreted by EPA through the policy and guidance documents listed 
in Section B of the May 13, 2010 proposal, including EPA's 1999 Policy. 
In order to be consistent with the Act, an affirmative defense must be 
narrowly-tailored in order not to undermine the enforceability of the 
SIP. An effective enforcement program must be able to collect penalties 
to deter avoidable violations. Thus, the SIP

[[Page 68993]]

should only provide the defense for circumstances where it is 
infeasible to meet the applicable limit and the criteria that the 
source must prove should ensure that the source has made all reasonable 
efforts to comply. Otherwise, such an approach could undermine the 
enforceability and attainment demonstration requirements of the Act. 
Because, as discussed above, we do not believe that it is infeasible 
for sources to meet applicable limits during planned maintenance, we 
are disapproving section 101.222(h).\8\
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    \8\ To the extent there may be a unique situation where 
maintenance cannot be performed at a time and in a manner that would 
ensure compliance with an applicable emission limitation, the State 
can consider establishing alternative limits that would apply during 
such events. However, such a situation does not support the creation 
of an affirmative defense that would apply more broadly to a variety 
of maintenance activities.
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    We further note, as provided in more detail in our proposed rule, 
that severing the unapprovable provisions (Sections 101.222(h), (i), 
and (j)) of the rule does not affect the effectiveness or the 
enforceability of the remaining portions of the rule that we are 
approving in this final action. Section D of our May 13, 2010 (75 FR 
26894) proposal stated the reasons for approving portions of the 
submittal, and Section E (75 FR 26896) explained why we proposed 
disapproval of sections 101.222(h), (i), and (j). As explained in the 
proposed rule at 75 FR 26893, we believe sections 101.222(h), 
101.222(i), and 101.222(j) are severable from, and independent of, the 
remainder of the January 26, 2006 SIP submittal. Disapproving these 
provisions does not make the portions of the submission that we are 
proposing to approve more stringent than the State intended. The 
provisions being disapproved address completely separate activities 
when excess emissions occur (planned activities) from those addressed 
by the provisions being approved (unplanned activities). The approved 
provisions will provide the exact limited relief intended by the State 
for sources covered by those provisions: A source may assert an 
affirmative defense in an action seeking penalties for a violation of 
an applicable emission limit during unplanned startup, shutdown, 
malfunction or maintenance activity. In asserting the affirmative 
defense, the source has the burden to prove certain criteria have been 
met. EPA's action disapproving similar relief for excess emissions 
during planned activities does not affect the stringency of the defense 
being approved for periods of excess emissions during unplanned 
activities.

V. What are the public comments and EPA's responses to them?

    We have evaluated the comments received on the proposed rule and, 
as provided above, have determined to take final action consistent with 
our proposal, with the exception that we are not taking final action on 
two provisions withdrawn by the State. A summary of the comments and 
our responses are provided below.

A. General Comments of Support

    Comments: Two commenters expressed support for EPA's proposed 
approval of those sections of the January 23, 2006 SIP submittal, 
identified with ``proposed approval'' in the above Table. Many other 
commenters requested that EPA approve not only those sections 
identified with ``proposed approval'' in the above Table but also the 
entire January 23, 2006 SIP submittal. Another commenter expressed 
support for EPA's proposal to disapprove certain sections of the 
January 23, 2006 SIP submittal, and requested EPA disapprove the entire 
January 23, 2010 SIP submittal as it relates to affirmative defenses.
    Response: EPA appreciates the support of the commenters who agree 
with EPA's proposed action. We have also considered the concerns 
expressed by the commenters who disagreed with all or a portion of 
EPA's proposed action, as discussed below in response to the 
commenters' more detailed comments.

B. Comments Related to the SIP Stringency and CAA Section 110(l) 
Requirements

    Comments: Several commenters characterized the January 23, 2006 SIP 
submittal as substituting a more stringent affirmative defense for a 
pre-existing SIP-approved automatic exemption for excess emissions, or 
that the submittal eliminates an exemption or affirmative defense. 
Other commenters expressed concern that EPA's partial approval would 
unlawfully increase the stringency of the Texas SIP. One commenter 
asserted that partial disapproval would expose sources to civil 
penalties. Another set of commenters stated that EPA's proposed 
disapproval is contrary to section 110(l) of the Act and an unmerited 
expansion of a solution to the problem of historically unauthorized 
emissions. Two commenters stated that section 101.222(h) incorporates 
by reference section 101.222(c)(9) which means that excess emissions 
would not be eligible for an affirmative defense if such events 
interfere with attainment and maintenance of the NAAQS. They argue that 
EPA has failed to show how the affirmative defense would interfere with 
the attainment and maintenance of the NAAQS. One commenter noted 
improvements to the air quality in Texas over the last 10 years despite 
increases in population, and claims that the affirmative defense 
provisions in the January 23, 2006 SIP submittal require a 
demonstration that the covered emissions did not cause NAAQS 
exceedances.
    Response: We disagree that our action increases the stringency of 
the approved SIP. The federally-approved Texas SIP does not provide 
either an exemption for or an affirmative defense to excess emissions 
occurring during periods of planned or unplanned startup, shutdown, 
maintenance, or malfunction activities. Previously approved provisions 
that addressed excess emissions expired from the SIP on their own terms 
as of July 1, 2006. Thus, under the federally-approved Texas SIP, 
excess emissions are violations of the applicable emission limits, and 
the SIP does not include any provision for asserting an affirmative 
defense in response to an enforcement proceeding for excess emissions 
during planned or unplanned maintenance, startup, shutdown or 
malfunction. Thus, the action we are finalizing in this rulemaking--
approving an affirmative defense available in an enforcement action for 
penalties for periods of excess emissions during unplanned maintenance, 
startup, shutdown activities (including opacity events)--does not make 
the approved SIP more stringent. Rather, it provides an avenue of 
limited relief in an action for penalties for a source that violates an 
applicable emission limit and can prove certain criteria have been met. 
Thus, the comments asserting that the partial disapproval would expose 
sources to penalties are incorrect, since excess emissions are 
violations of the existing SIP and the existing SIP does not contain 
affirmative defense provisions that provide relief in an action for 
penalties for any period of excess emissions.
    In response to the commenter's concern that our disapproval would 
increase the stringency of the Texas SIP, we note further that section 
110(k)(3) of the CAA provides that the administrator can approve a plan 
in part and disapprove a plan in part. A partial approval/partial 
disapproval action is permissible when portions of the plan are 
separable. ``Separable'' means the approved portions of the SIP 
revision should not result in the approved portions of the SIP 
submission being more stringent than the State would

[[Page 68994]]

have anticipated. The State's submitted provisions for an affirmative 
defense for excess emissions from unplanned maintenance, startup, or 
shutdown activities are separable from the provisions of the rule that 
we are disapproving. Our action has no effect on the stringency of the 
approved portions of the rule. The portions of the rule we are 
approving today that provide for an affirmative defense for excess 
emissions during unplanned maintenance, startup, or shutdown, and 
malfunction activities (as identified with ``proposed approval'' in the 
above Table) will operate exactly the same way under the federally 
approved SIP as they do under state law.
    With respect to EPA's application of section 110(l) of the CAA in 
this rulemaking action, we agree that section 110(l) provides that EPA 
cannot approve a proposed SIP revision that would interfere with 
attainment or maintenance of the NAAQS. In addition, it provides that 
EPA cannot approve a SIP revision that would interfere with any other 
applicable requirement of the Act. Section 110(l) applies to this 
action, since the action is one that revises the existing SIP. We note 
that the portions of the January 23, 2006 SIP submittal we are 
approving do not modify any applicable emission limitation, nor do they 
authorize violations of applicable emission limitations. All emissions 
in excess of the applicable emission limits are considered violations. 
The affirmative defense neither authorizes nor condones such events and 
it is narrowly tailored consistent with our interpretation that such a 
defense not undermine the enforcement or attainment provisions of the 
Act. Thus, we have concluded that the affirmative defense provisions we 
are approving into the SIP will not interfere with attainment or 
maintenance of the NAAQS and, as explained in more detail above, such 
provisions are consistent with other applicable requirements of the 
Act. We further note that the affirmative defense is limited to actions 
for penalties and may not apply to actions for injunctive relief. Thus, 
to the extent the State, EPA or a private citizen is concerned that 
excess emissions might be causing or contributing to a violation of the 
NAAQS, they can seek a court order to abate the activity. We disagree 
with those commenters who suggest that in order for EPA to disapprove a 
SIP revision, section 110(l) requires EPA to demonstrate that there 
will be a violation of the NAAQS if EPA approves the SIP revision. As 
an initial matter, we note that the language in section 110(l) provides 
that EPA must disapprove a SIP revision if it ``would interfere with 
any applicable requirement concerning attainment.'' This is quite 
distinct from an obligation to prove that a violation will occur. We 
believe that provisions that provide relief from penalties should be 
limited to circumstances where sources are unable to comply despite 
best efforts and, as explained above, we believe that maintenance 
activities can be scheduled at times that would avoid the occurrence of 
excess emissions. We further note that section 110(l) also provides 
that EPA may not approve a SIP revision that interferes with any 
applicable requirement of the Act. As explained more fully above, 
because maintenance activities can be planned to occur during planned 
outages, we do not believe that an affirmative defense for penalties is 
appropriate for excess emissions occurring during such planned 
maintenance activities. Allowing such a provision would undermine the 
enforceability, as well as the attainment, requirements of the Act.
    Comment: One commenter stated that the New Mexico SIP provides for 
an affirmative defense to maintenance-related activities.
    Response: Our review of a SIP revision submittal is governed by 
section 110(l) of the Act. Assuming for the moment that the New Mexico 
SIP contained a provision identical to that we are disapproving today 
for Texas, section 110(l) would still bar our approval of the rule into 
the Texas SIP for the reasons provided previously. The fact that we may 
have erred in approving a SIP for one State does not support an 
argument that we should make the same error with respect to a different 
State. In any event, we note that the commenter does not point to a 
specific provision in the New Mexico SIP to support its argument, and 
we are unaware of any provision in the New Mexico SIP that provides an 
affirmative defense for excess emissions during planned maintenance.
    Comment: Other commenters claim that EPA's disapproval would create 
inequities between Texas sources and sources in other states whose 
programs contain affirmative defenses for startup or shutdown 
activities.
    Response: We disagree. The commenters are referring to perceived 
inequities which are attributable to TCEQ's action combining a 
``planned maintenance'' activity in section 101.222(h) with a 
``startup'' or ``shutdown'' activity, leaving EPA no recourse but to 
partially disapprove the January 23, 2006 SIP submittal.

C. Comments Related to Texas' Phase Out Approach and Disapproval 
Effects

    Comments: Some commenters characterized the January 23, 2006 SIP 
submittal as TCEQ's phase-out of a regulatory scheme in which excess 
emissions during planned maintenance, startup, or shutdown (MSS) 
activities were exempt from compliance to one where such emissions 
would become authorized under a permit. Other commenters claimed that 
EPA's disagreement with the Texas approach was not adequately 
explained. These commenters stated that the point of difference between 
EPA and TCEQ must have originated from the procedures and timing TCEQ 
is providing to affect its phase-out. As a result, EPA's partial 
disapproval would disrupt an orderly transition resulting in negative 
impacts (including interstate inequities) at the expense of Texas 
facilities and causing companies to forgo preventative maintenance. 
TCEQ commented on the reasons supporting its phase-out approach (which 
includes the categories of sources likely to report the majority of 
excess emissions, the degree of complexity of processing of permit 
applications for planned MSS activities for these categories, and 
facilitating the orderly/temporary transition to appropriate permit 
limits and requirements) and its plan to exercise enforcement 
discretion when reviewing excess emissions from planned MSS activities 
that fail to meet the schedule set forth in 30 TAC Sec.  101.222(h). 
One commenter asserted that TCEQ's provision for an affirmative defense 
to emissions from planned maintenance activities is a direct response 
to EPA's comments to TCEQ.
    Response: As an initial matter, it is important to understand what 
the commenters are referring to. The January 23, 2006 SIP submittal 
submitted by the State relates to a broader process envisioned by the 
State where it would have provisions in the Texas SIP that would 
address excess emissions during unplanned and planned MSS and 
malfunctions activities and also establish a process and schedule for 
addressing emissions from planned MSS for sources through a New Source 
Review (NSR) SIP permitting process. Pursuant to the January 23, 2006 
SIP submittal, as sources apply for and receive NSR SIP permits that 
authorize emission limitations for the emissions occurring during 
planned MSS activities, then under the State's submitted transition 
process, the affirmative defense provisions addressing excess emissions 
during periods of planned MSS would

[[Page 68995]]

no longer apply upon the issuance of the NSR SIP permit. Instead, the 
terms and conditions, including the newly imposed emission limitations 
for the planned MSS emissions, of the NSR SIP permit would apply.
    EPA's role in evaluating a proposed SIP revision is to make sure 
that the revision would not potentially interfere with attainment and 
maintenance of the NAAQS or any other applicable requirement of the 
Act. Thus, we must determine whether the State's regulatory choices are 
consistent with the federal Clean Air Act, including the obligation to 
attain and maintain the NAAQS and the ability to adequately enforce the 
obligations in the approved SIP. See 42 U.S.C. 7410(k); 40 CFR 
52.02(a). We explain our reasons for proposing disapproval of sections 
101.222(h), (i), and (j) in section E of the May 13, 2009 proposal (75 
FR 26892) and provide more detail above.
    The commenters are incorrect that our disapproval of the three 
provisions is based on a ``difference'' with Texas over their approach 
to address periods of excess emissions as part of a broader permitting 
effort. The basis for our disapproval is explained above and is 
separate from any concern that we may have with Texas' overall approach 
to addressing excess emissions through permitting. The State's choice 
to create a permitting process to address excess emissions during 
planned maintenance, startup, or shutdown activities does not justify 
an approval into the SIP--even for a temporary period of time--a 
provision that we believe is inconsistent with the Act. We agree with 
the State that it is appropriate to consider appropriate emission 
limits that would apply during periods of planned startup and shutdown 
and to incorporate them into NSR SIP permits. As provided in the 1999 
Policy, where it is not possible for sources to comply with applicable 
emission limits during periods of startup and shutdown, it is 
appropriate for the State to develop alternative emission limits that 
would apply during such periods. This can include the State using its 
EPA-approved NSR SIP requirements. However, we note that the State 
cannot issue any NSR SIP permit that has a less stringent emission 
limit than already is contained in the approved SIP. For example, the 
State cannot issue a NSR SIP permit that has less stringent Volatile 
Organic Compounds limits than those in Chapter 115 as approved into the 
Texas SIP, or less stringent Oxides of Nitrogen (NOX) limits 
in Chapter 117 as approved into the Texas SIP. The State must issue a 
NSR SIP permit that meets all applicable requirements of the Texas SIP. 
If the State wishes to issue a NSR SIP permit that does not meet the 
applicable requirements of the Texas SIP, then any such alternative 
limits would need to be submitted to EPA for approval as a source-
specific revision to the SIP, before they would modify the federally 
applicable emission limits in the approved SIP.
    We disagree with the commenters who suggest that the partial 
disapproval will disrupt the orderly transition contemplated by Texas 
in which sources will address excess emissions in permits. As we have 
noted before, the current SIP does not provide an affirmative defense 
for any period of excess emissions. Thus, our disapproval of the 
provisions providing an affirmative defense for excess emissions during 
periods of planned maintenance, startup, or shutdown activities does 
not affect the status quo.
    The commenters also appear to be asserting that EPA's disapproval 
of the submitted affirmative defense provision for excess emissions 
during planned maintenance, startup, and shutdown activities (which 
would apply in the period before a specific source applies for and 
receives a NSR SIP permit) would unfairly disadvantage sources. To the 
extent that the commenters are concerned that an inequity is created by 
Texas' phased-out approach for addressing periods of excess emissions 
through the permitting process, that inequity is created by the system 
developed by the State, not by EPA's partial disapproval of the SIP. 
These commenters appear to assume that EPA's approval of the submitted 
affirmative defense provision for excess emissions during planned MSS 
activities is needed only as a ``temporary'' measure until the State 
finishes issuing all affected sources their NSR SIP permits containing 
emissions limitations for these types of emissions. However, the State-
issued NSR SIP permits must meet all applicable requirements under the 
EPA-approved Texas SIP. Should the State wish to issue a NSR SIP permit 
addressing periods of excess emissions during planned MSS activities 
that will not meet all of the requirements in the Texas SIP, then that 
particular NSR SIP permit must be submitted by the State to EPA for 
approval as a source-specific SIP revision.
    The comment claiming that TCEQ added an affirmative defense for 
planned maintenance based on a comment from EPA provides no detail. We 
are unaware of any statement that we made that would have encouraged 
the State to add such a provision and the commenter does not reference 
any specific comment from EPA. Regardless of whether any statements 
were made, an affirmative defense for planned maintenance is not 
appropriate under the Act. Because the affirmative defense for planned 
maintenance is not severable from that for planned startup or shutdown, 
we are disapproving in whole the provision (section 101.222(h)) that 
establishes the affirmative defense for planned maintenance, startup, 
or shutdown activities.

D. Comments Related to NAAQS, Air Quality, and State Control Options

    Comments: Some commenters contend that EPA's proposed disapproval 
is contrary to the cooperative federalism principles in the Act, 
referencing CleanCOALition v. TXU Power, 536 F.3d 469, 471 (5th Cir. 
2008) and Fla. Power & Light Co. v. Costle, 650 F.2d 579, 581 (5th Cir. 
1981), and amounts to second guessing Texas' reasonable choices for how 
to achieve the NAAQS, including opacity limits in 30 TAC Chapter 111. 
These commenters continue by stating that EPA's disapproval would lead 
to interstate inequities and remove permitting incentives.
    Response: Under the NAAQS provisions of the CAA, air pollution 
control at its source is the primary responsibility of States and local 
governments. EPA is respectful of the Act and cognizant of the 
cooperative federalism principle contained therein. However, while the 
Act does give States a fair degree of latitude in choosing the mix of 
controls necessary to meet and maintain the NAAQS, it also places some 
limits on the choices States can make. EPA's role is to ensure that the 
SIP submittal is consistent with the CAA. Any SIP submittal, including 
revisions to 30 TAC Chapter 101, must adhere to applicable requirements 
of the federal CAA, including the obligation to provide for attainment 
and maintenance of the NAAQS and to ensure that the SIP may be 
adequately enforced. EPA's statutory responsibilities in reviewing a 
SIP is to ensure it meets the requirements of the Act, including those 
in section 110(a)(2) and section 172(c). As explained in the May 13, 
2010 proposal and above, as part of EPA's review, we determined that 
the provision providing for an affirmative defense for excess emissions 
during planned maintenance is inconsistent with the CAA.
    With respect to the comments that suggest that our proposed 
disapproval will lead to removal of permitting incentives, we disagree. 
The submitted transition permitting process is the State's choice for 
how to handle excess

[[Page 68996]]

emissions during planned maintenance, startup, or shutdown activities. 
Under the State's chosen transition process, after a source receives a 
NSR SIP permit that establishes emission limitations upon the planned 
maintenance, startup, or shutdown emissions, then the source no longer 
can assert an affirmative defense for excess emissions during planned 
MSS activities. The source can choose between a potential enforcement 
action (and whether it will prevail in its assertion of affirmative 
defense) or obtaining a NSR SIP permit that sets limits on the excess 
emissions during planned maintenance, startup, or shutdown activities. 
Thus, we do not see how the presence or absence of an affirmative 
defense for excess emissions during planned maintenance, startup, or 
shutdown activities in the SIP will affect the choice a source might 
make regarding permitting. Furthermore, we disagree with the comment 
that our disapproval will create interstate inequities because other 
SIPs contain affirmative defenses for excess emissions during planned 
maintenance activities. The commenter references no specific SIPs that 
contain provisions similar to what we are disapproving in this action. 
As stated above, our review of a SIP revision submittal is governed by 
section 110(l) of the Act; to the extent we may have erred in approving 
an affirmative defense for excess emissions during planned maintenance 
into a SIP for one State does not support an argument that we should 
make the same error with respect to a different State. Within Texas, 
however, we note that based upon our disapproval, an affirmative 
defense for excess emissions during periods of planned MSS would be 
equally unavailable to any source. For discussion concerning opacity 
limits in 30 TAC Chapter 111, see section H of this document.
    Comment: One commenter notes the similarities between the proposed 
SIP revisions and the New Source Performance Standards (NSPS) 
requirements for SSM events.
    Response: As an initial matter, we note that there are several 
differences between the proposed SIP revision and the NSPS 
requirements. First, the NSPS provisions in 40 CFR 60.11 do not 
establish an affirmative defense, but rather exempt periods of excess 
emissions during startup, shutdown and malfunction from compliance with 
underlying emissions limits, unless otherwise specified. The provision 
does not establish an affirmative defense nor does it address periods 
of maintenance. Even assuming the NSPS provisions were similar, 
however, we note that the Agency has historically allowed more 
flexibility in addressing emissions during startup, shutdown and 
malfunction for technology-driven regulations, such as the NSPS. SIPs, 
however, are designed for the purpose of attaining and maintaining the 
health-protective NAAQS, and the Agency has consistently taken the 
position that broad exemptions from compliance with applicable emission 
limits during SSM are not appropriate because they cannot be adequately 
accounted for in plans to demonstrate attainment and maintenance of the 
NAAQS. In addition to the difficulties States would encounter in 
predicting how many sources may be exceeding underlying limits at any 
one time, for how long, and by how much, such provisions undermine 
incentives for sources to operate using sound practices. In order to 
address the limits of technology for standards included in plans to 
attain the health-based NAAQS, we have urged States to set alternative 
emission limits that apply during periods of startup and shutdown where 
compliance with the otherwise applicable emission limits is impossible; 
to use enforcement discretion; or to establish an affirmative defense 
that is limited to actions for penalties. As explained above, however, 
we do not believe that it is appropriate to establish an affirmative 
defense for excess emissions during planned maintenance activities 
because we believe that these activities can be anticipated and 
scheduled during planned outages.
    Comment: One comment suggests that providing affirmative defenses 
for startup, shutdown, and malfunction (SSM) could result in emissions 
contributing to ozone NAAQS exceedances. The same commenter also states 
that flaring and upsets could contribute to ozone nonattainment.
    Response: We agree with the comments that flaring and upset events 
could contribute to ozone NAAQS nonattainment. Excess emissions related 
to flaring events are unauthorized emissions and thus are considered a 
violation of the applicable emission limit. TCEQ's ozone NAAQS control 
strategies including controls of flares are addressed in the 
substantive control requirement provisions of the SIPs as part of ozone 
attainment demonstration plans and were not specifically addressed as 
part of the emission event provisions in the 30 TAC Chapter 101 rules 
of the Texas SIP, including the January 23, 2006 SIP submittal. The 
rule on which we are taking action here does not excuse or authorize 
flaring events due to startup, shutdown, malfunction or maintenance. To 
the extent a flaring event causes excess emissions during a period of 
unplanned startup, shutdown or maintenance, the rule would provide 
limited relief to the source in an action for penalties, assuming the 
source could prove certain factors had been met; however, it does not 
authorize or excuse those excess emissions. Thus, our approval of the 
affirmative defense in an action for penalties for excess emissions 
during unplanned startup, shutdown or maintenance will not interfere 
with attainment or maintenance of the ozone NAAQS. We note that to the 
extent a violation of the NAAQS is caused by a violation of an emission 
limit in a SIP, the most effective means to ensure limited harm to 
ambient air quality from the exceedance would be an action for 
injunctive relief. That remedy is unaffected by our approval of the 
affirmative defense, which is limited to actions for penalties.

E. Comments Related to Technical Infeasibility and Disapproval Effects

    Comment: Several commenters expressed concern that it is not 
technically feasible to meet certain emission limitations (including 
opacity limits) at all times during planned maintenance, startup, or 
shutdown activities, and that the proposed partial disapproval could 
lead to less effective and less safe operation of environmental control 
equipment, including sources that use Electrostatic Precipitators 
(ESPs) and Selective Catalytic Reduction as emissions control devices. 
For example, several commenters noted that during maintenance of a 
boiler at a coal-fired power plant, fans must remain on and the ESPs 
will not be energized, leading to excess emissions. These commenters 
claim that EPA's partial disapproval will force facilities to forgo 
preventative and proactive maintenance until permits can be issued for 
these activities. Other commenters note that EPA's NSPS regulations at 
40 CFR 60.11(c) for coal-fired power plants provide exceptions for 
excess opacity emissions during planned startup, shutdown, and 
malfunction activities and that opacity limits in the Texas SIP were 
based on normal operations.
    Response: As noted earlier, since July 1, 2006, no affirmative 
defense for excess emissions has been available in the federally-
approved Texas SIP. Thus, our disapproval of the affirmative defense 
provision for periods of planned maintenance, startup, or shutdown 
activities will not change the status quo that has applied for over 
four years under the Texas SIP. We can understand that there may be 
excess opacity emissions in certain situations from operation of power 
generators equipped with ESPs. Under the current SIP these

[[Page 68997]]

excess opacity events would be violations, and yet power plants have 
been able to maintain and generate reliable power to their customers 
during this period. The commenters did not refute this. Thus, we do not 
believe our action to disapprove the affirmative defense for planned 
maintenance, startup, or shutdown activities where such defense has not 
been available since 2006, should jeopardize the safe and effective 
operation of the generators as several commenters claim. For this same 
reason, we also believe that our actions will not lead to facilities 
being forced to forego proactive maintenance when operated by trained 
and knowledgeable personnel.
    The NSPS regulation at 40 CFR 60.11(c) does provide exceptions from 
compliance with underlying opacity limits during startup, shutdown and 
malfunction, but does not provide similar relief for periods of 
maintenance, as suggested by the commenter. As provided above, we have 
historically provided more leeway for compliance with technology-based 
standards than for health-based programs such as the NAAQS. Thus, the 
provisions adopted for purposes of the NSPS are not relevant to our 
action disapproving an affirmative defense for excess emissions during 
planned maintenance as part of a SIP.

F. Comments Related to EPA Guidance and Policies and Disapproval 
Effects

    Comments: Some commenters state that the affirmative defense 
provisions in the January 23, 2006 SIP submittal are consistent with 
the EPA guidance documents referenced in the May 13, 2010 proposal, and 
that EPA's distinction between unplanned and planned startup or 
shutdown activity has no factual basis and is arbitrary and capricious.
    Response: We disagree. The January 23, 2006 SIP submittal contains 
affirmative defense provisions for planned maintenance activities. As 
discussed previously, EPA's interpretation of the Act is that it would 
be inappropriate to provide an affirmative defense to an action for 
penalties related to excess emissions occurring during planned 
maintenance and that EPA's approval of such a defense into a SIP would 
be inconsistent with the CAA and EPA guidance. With respect to the 
comment concerning EPA's distinction between planned and unplanned 
startup or shutdown activities, we note that unplanned startup or 
shutdown activity is specifically defined in the Texas rules as 
nonroutine, and unpredictable. As such it is functionally equivalent to 
a malfunction. Therefore the distinction between planned and unplanned 
startup and shutdown is not arbitrary. EPA would allow a State to 
create a limited affirmative defense for excess emissions occurring 
during planned and unplanned startup and shutdown activities. However, 
with respect to the planned startup or shutdown provisions of section 
101.222(h), the cross-reference of several criteria in section 
101.222(c) apply only to unplanned activities which results in the 
failure to include all the necessary criteria for planned startup or 
shutdown activities, as discussed more fully below.
    Comment: One commenter asserts that the affirmative defense 
provided in section 101.222(h) for excess emissions during planned 
maintenance, startup or shutdown activities should be approved because 
it incorporates by reference all the criteria set forth in section 
101.222(c).
    Response: As provided above, EPA cannot approve the submitted 
section 101.222(h) because it provides for an affirmative defense for 
excess emissions during planned maintenance activities into the Texas 
SIP since we believe such approval would be inconsistent with the CAA 
and EPA guidance. Because the portions of section 101.222(h) that 
provide an affirmative defense for excess emissions during planned 
startup and shutdown are not severable from the provision for 
maintenance, those provisions must also be disapproved.
    While the commenter is correct that the submitted section 
101.222(h) incorporates by reference the affirmative defense criteria 
set forth in the submitted section 101.222(c), such cross-referencing 
is problematic. Many of the criteria listed in submitted section 
101.222(c)--namely, (c)(2), (c)(3), (c)(4), (c)(6), and (c)(8)--
specifically state that they apply to ``emissions from an unplanned 
maintenance, startup, or shutdown activity (emphasis added).'' As 
stated in footnote 5 above, a source claiming an affirmative defense in 
an action for excess emissions during a planned startup or shutdown 
activity could claim that the criteria listed in section 101.222(c)(2), 
(c)(3), (c)(4), (c)(6), and (c)(8) do not apply. In the absence of the 
appropriate criteria for planned startup or shutdown activities, EPA 
cannot approve the submitted section 101.222(h) as part of the Texas 
SIP.
    Comment: As noted by another commenter the proposed disapproval of 
section 101.222(h) could be interpreted as EPA's belief that it cannot 
approve any affirmative defense for excess emissions from planned 
startup or shutdown activities.
    Response: As noted above and in footnote 5, we interpret the CAA to 
allow EPA to approve a SIP revision submittal from a State that 
provides an affirmative defense for excess emissions during planned 
startup or shutdown activities, but the inclusion of planned 
maintenance activities and the failure to include appropriate criteria 
(due to improper cross-referencing) for planned startup and shutdown 
activities renders the submitted section 101.222(h) unapprovable.
    Comments: One commenter states that EPA's May 13, 2010 notice 
provides no basis for the proposed disapproval of an affirmative 
defense for excess emissions during planned maintenance, where a source 
can demonstrate that such emissions could not be avoided.
    Response: We disagree. The May 13, 2010 proposal to disapprove 
section 101.222(h) specifically states that the source or operator 
should be able to plan maintenance that might otherwise lead to excess 
emissions to coincide with maintenance or production equipment or other 
facility shutdowns. EPA has determined that it is inappropriate to 
provide an affirmative defense for excess emissions resulting from 
planned maintenance activities. With respect to other planned 
activities, we noted that for those sources and source categories where 
compliance is not possible, the State should develop alternative, 
applicable emission limits for such events, which they can consider in 
SIPs demonstrating attainment and maintenance of the NAAQS, rather than 
establishing an affirmative defense for such emission events. See 75 FR 
26896-7.
    Comment: Other commenters claim that disapproving an affirmative 
defense during the period of transition to permitting planned 
maintenance, startup,