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, 55919-55956 [2014-21830]
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Vol. 79
Wednesday,
No. 180
September 17, 2014
Part III
Environmental Protection Agency
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40 CFR Part 52
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 State;
Proposed Rule
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–HQ–OAR–2012–0322; FRL–9914–41–
OAR]
RIN 2060–AR68
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
Environmental Protection
Agency (EPA).
ACTION: Supplemental notice of
proposed rulemaking.
AGENCY:
In this supplemental notice of
proposed rulemaking (SNPR), the
Environmental Protection Agency (EPA)
is supplementing and revising what it
previously proposed as its response to a
petition for rulemaking filed by the
Sierra Club (the Petition). By notice
published on February 22, 2013, the
EPA proposed its response to the
Petition’s requests concerning treatment
of excess emissions in state rules by
sources during periods of startup,
shutdown or malfunction (SSM).
Subsequent to that proposal, a federal
court ruled that the Clean Air Act (CAA
or Act) precludes authority of the EPA
to create affirmative defense provisions
applicable to private civil suits. As a
result, in this SNPR the EPA is
proposing to apply its revised
interpretation of the CAA, but only with
respect to affirmative defense provisions
in state implementation plans (SIPs).
For specific affirmative defense
provisions identified in the Petition, we
are revising the basis for the proposed
findings of substantial inadequacy and
SIP calls or proposing new findings of
substantial inadequacy and SIP calls.
For specific provisions that the EPA has
independently identified, including SIP
provisions in states not included in the
February 2013 proposal notice, we are
proposing new findings and SIP calls.
DATES: Comments. Comments must be
received on or before November 6, 2014.
Public Hearing. The EPA will hold a
public hearing on this SNPR on October
7, 2014, in Washington, DC.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2012–0322, by one of the
following methods:
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SUMMARY:
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• https://www.regulations.gov: Follow
the online instructions for submitting
comments.
• Email: a-and-r-docket@epa.gov.
• Fax: (202) 566–9744.
• Mail: Attention Docket ID No. EPA–
HQ–OAR–2012–0322, U.S.
Environmental Protection Agency, EPA
Docket Center, Air Docket, Mail Code
28221T, 1200 Pennsylvania Avenue
NW., Washington, DC 20460. Please
include a total of two copies.
• Hand Delivery: U.S. Environmental
Protection Agency, EPA Docket Center,
William Jefferson Clinton West
Building, Room 3334, 1301 Constitution
Avenue NW., Washington, DC 20004,
Attention Docket ID No. EPA–HQ–
OAR–2012–0322. Such deliveries are
only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions. Direct your comments to
Docket ID No. EPA–HQ–OAR–2012–
0322. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or email. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means the EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to the EPA without
going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, the EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
CD you submit. If the EPA cannot read
your comment due to technical
difficulties and cannot contact you for
clarification, the EPA may not be able to
consider your comment. Electronic files
should avoid the use of special
characters, avoid any form of encryption
and be free of any defects or viruses. For
additional information about the EPA’s
public docket visit the EPA Docket
Center homepage at https://
www.epa.gov/epahome/dockets.htm.
For additional instructions on
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submitting comments, go to section I.C
of the SUPPLEMENTARY INFORMATION
section of this document.
Docket. All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI 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 https://
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 Air Docket is (202) 566–1742.
Public Hearing: A public hearing will
be held on October 7, 2014, at the
William Jefferson Clinton West
Building, Room 1117B, 1301
Constitution Avenue, Washington, DC
20460. The public hearing will convene
at 9 a.m. (Eastern Standard Time) and
continue until the earlier of 6 p.m. or 1
hour after the last registered speaker has
spoken. People interested in presenting
oral testimony or inquiring as to
whether a hearing is to be held should
contact Ms. Pamela Long, Air Quality
Planning Division, Office of Air Quality
Planning and Standards (C504–01), U.S.
Environmental Protection Agency,
Research Triangle Park, NC 27711,
telephone (919) 541–0641, fax number
(919) 541–5509, email address
long.pam@epa.gov, at least 5 days in
advance of the public hearing (see
DATES). People interested in attending
the public hearing must also call Ms.
Long to verify the time, date and
location of the hearing. The public
hearing will provide interested parties
the opportunity to present data, views
or arguments concerning the proposed
action (i.e., this SNPR specific to
affirmative defense provisions in SIPs).
The EPA will make every effort to
accommodate all speakers who arrive
and register. A lunch break is scheduled
from 12:30 p.m. until 2 p.m. Because
this hearing is being held at U.S.
government facilities, individuals
planning to attend the hearing should be
prepared to show valid picture
identification to the security staff in
order to gain access to the meeting
room. Please note that the REAL ID Act,
passed by Congress in 2005, established
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new requirements for entering federal
facilities. These requirements took effect
July 21, 2014. If your driver’s license is
issued by Alaska, American Samoa,
Arizona, Kentucky, Louisiana, Maine,
Massachusetts, Minnesota, Montana,
New York, Oklahoma or the state of
Washington, you must present an
additional form of identification to enter
the federal building where the public
hearing will be held. Acceptable
alternative forms of identification
include: Federal employee badges,
passports, enhanced driver’s licenses,
and military identification cards. In
addition, you will need to obtain a
property pass for any personal
belongings you bring with you. Upon
leaving the building, you will be
required to return this property pass to
the security desk. No large signs will be
allowed in the building, cameras may
only be used outside of the building and
demonstrations will not be allowed on
federal property for security reasons.
The EPA may ask clarifying questions
during the oral presentations but will
not respond to the presentations at that
time. Written statements and supporting
information submitted during the
comment period will be considered
with the same weight as oral comments
and supporting information presented at
the public hearing. Written comments
on the proposed rule must be received
by November 6, 2014. Commenters
should notify Ms. Long if they will need
specific equipment, or if there are other
special needs related to providing
comments at the hearing. The EPA will
provide equipment for commenters to
show overhead slides or make
computerized slide presentations if we
receive special requests in advance. Oral
testimony will be limited to 5 minutes
for each commenter. The EPA
encourages commenters to provide the
EPA with a copy of their oral testimony
electronically (via email or CD) or in
hard copy form. The hearing schedule,
including lists of speakers, will be
posted on the EPA’s Web site at https://
www.epa.gov/air/urbanair/sipstatus/.
Verbatim transcripts of the hearings and
written statements will be included in
the docket for the rulemaking. The EPA
55921
will make every effort to follow the
schedule as closely as possible on the
day of the hearing; however, please plan
for the hearing to run either ahead of
schedule or behind schedule.
FOR FURTHER INFORMATION CONTACT:
Questions concerning this SNPR should
be addressed to 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: sutton.lisa@
epa.gov.
If you have questions concerning the
public hearing, please contact Ms.
Pamela Long, U.S. Environmental
Protection Agency, Office of Air Quality
Planning and Standards, Air Quality
Planning Division (C504–01), Research
Triangle Park, NC 27711, telephone
(919) 541–0641, fax number (919) 541–
5509, email address: long.pam@epa.gov
(preferred method for registering).
SUPPLEMENTARY INFORMATION: For
questions related to a specific SIP,
please contact the appropriate EPA
Regional Office:
EPA
Regional
office
Contact for regional office
(person, mailing address, telephone number)
State
I .................
Alison Simcox, Environmental Scientist, EPA Region 1, 5 Post
Office Square, Suite 100, Boston, MA 02109–3912, (617)
918–1684.
Paul Truchan, EPA Region 2, 290 Broadway, 25th Floor, New
York, NY 10007–1866, (212) 637–3711.
Amy Johansen, EPA Region 3, 1650 Arch Street, Philadelphia,
PA 19103–2029, (215) 814–2156.
Joel Huey, EPA Region 4, Atlanta Federal Center, 61 Forsyth
Street SW., Atlanta, GA 30303–8960, (404) 562–9104.
Christos Panos, Air and Radiation Division (AR–18J), EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604–
3507, (312) 353–8328.
Alan Shar (6PD–L), EPA Region 6, Fountain Place 12th Floor,
Suite 1200, 1445 Ross Avenue, Dallas, TX 75202–2733,
(214) 665–6691.
Lachala Kemp, EPA Region 7, Air Planning and Development
Branch, 11201 Renner Boulevard, Lenexa, KS 66219, (913)
551–7214. Alternate contact is Ward Burns, (913) 551–7960.
Adam Clark, Air Quality Planning Unit (8P–AR) Air Program, Office of Partnership and Regulatory Assistance, EPA Region 8,
1595 Wynkoop Street, Denver, CO 80202–1129, (303) 312–
7104.
Lisa Tharp, EPA Region 9, Air Division, 75 Hawthorne Street
(AIR–8), San Francisco, CA 94105, (415) 947–4142.
Donna Deneen, Environmental Engineer, Office of Air, Waste
and Toxics (AWT–107), EPA Region 10, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101, (206) 553–6706.
Connecticut, Massachusetts, Maine, New Hampshire, Rhode Island and Vermont.
II ................
III ...............
IV ...............
V ................
VI ...............
VII ..............
VIII .............
IX ...............
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X ................
I. General Information
New Jersey, New York, Puerto Rico and Virgin Islands.
District of Columbia, Delaware, Maryland, Pennsylvania, Virginia and West Virginia.
Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee.
Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin.
Arkansas, Louisiana, New Mexico, Oklahoma and Texas.
Iowa, Kansas, Missouri and Nebraska.
Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming.
Arizona, California, Hawaii, Nevada and the Pacific Islands.
Alaska, Idaho, Oregon and Washington.
implementation plans (‘‘air agencies’’).1
A. Does this action apply to me?
1 The
Entities potentially affected by this
rule include states, U.S. territories, local
authorities and eligible tribes that are
currently administering, or may in the
future administer, EPA-approved
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 the EPA regulations, a tribe may, but is
not required to, apply for eligibility to have a tribal
implementation plan (TIP). For convenience, we
refer 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. The EPA notes that the petition under
evaluation does not identify any specific provisions
related to tribal implementation plans. We therefore
refer to ‘‘state’’ or ‘‘states’’ rather than ‘‘air agency’’
Continued
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The EPA’s action on the Petition is
potentially of interest to all such entities
because the EPA is evaluating issues
related to basic CAA requirements for
SIPs. 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, in the final action based on
this supplemental proposal, the EPA
may find specific SIP provisions in
states identified either in the Petition or
by the EPA independently to be
substantially inadequate to meet CAA
requirements, pursuant to CAA section
110(k)(5), and thus those states will
potentially be affected by this
rulemaking directly.2 For example, if 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 may
determine that the SIP provision is
substantially inadequate because the
provision is inconsistent with
fundamental requirements of the CAA.
This rule may also be of interest to the
public and to owners and operators of
industrial facilities that are subject to
emission limits in SIPs, because it may
require changes to state rules applicable
to excess emissions. When finalized,
this action will embody the EPA’s
updated SSM Policy for all SIP
provisions relevant to excess emissions
during SSM events.
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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 SNPR
will be available on the World Wide
Web. Following signature by the EPA
Assistant Administrator, a copy of this
SNPR will be posted on the EPA’s Web
site, under ‘‘State Implementation Plans
to Address Emissions During Startup,
Shutdown and Malfunction,’’ at https://
www.epa.gov/air/urbanair/sipstatus. In
addition to this notice, other relevant
or ‘‘air agencies’’ when meaning to refer to one,
some or all of the 39 states identified in the Petition
or other states identified by the EPA in this SNPR.
We also use ‘‘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.
2 The specific SIPs that include affirmative
defense provisions identified by the EPA
independently are listed under section II.B of this
SNPR (see table). Furthermore, in comments
received on the February 2013 proposal notice, a
commenter brought to the EPA’s attention one
affirmative defense provision in a SIP, that of Texas.
In the rulemaking docket, the comment letter may
be found at EPA–HQ–OAR–2012–0322–0621.
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documents are located in the docket,
including a copy of the Petition and a
copy of the February 2013 proposal
notice.
C. What should I consider as I prepare
my comments?
1. Submitting CBI. Do not submit this
information to the EPA through https://
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a CD that you mail to the
EPA, mark the outside of the CD as CBI
and then identify electronically within
the CD the specific information that is
claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2. Send or deliver
information identified as CBI only to the
following address: Roberto Morales,
OAQPS Document Control Officer
(C404–02), U.S. EPA, Research Triangle
Park, NC 27711, Attention Docket ID
No. EPA–HQ–OAR–2012–0322.
2. Tips for preparing your comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
D. 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?
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B. Where can I get a copy of this document
and other related information?
C. What should I consider as I prepare my
comments?
D. How is the preamble organized?
E. What is the meaning of key terms used
in this notice?
II. Overview of This SNPR
A. How does this notice supplement or
revise the EPA’s already proposed
rulemaking to respond to the Petition?
B. To which air agencies does this SNPR
apply and why?
C. What is the EPA proposing for any state
that receives a finding of substantial
inadequacy and a SIP call?
D. What are potential impacts on affected
states and sources?
III. Background for This SNPR
A. What did the Petitioner request?
B. What did the EPA previously propose in
this rulemaking with respect to
affirmative defense provisions in SIPs?
C. What events necessitated this SNPR?
IV. What is the EPA proposing through this
SNPR in response to the Petitioner’s
request for rescission of the EPA policy
on affirmative defense provisions?
A. Petitioner’s Request
B. The EPA’s Proposed Revised Response
V. Revised SSM Policy on Affirmative
Defense Provisions in SIPs
VI. Legal Authority, Process and Timing for
SIP Calls
VII. What is the EPA proposing through this
SNPR for each of the specific affirmative
defense provisions identified in the
Petition or identified independently by
the EPA?
A. Overview of the EPA’s Evaluation of
Specific Affirmative Defense SIP
Provisions
B. Affected States in EPA Region III
1. District of Columbia
2. Virginia
3. West Virginia
C. Affected States in EPA Region IV
1. Georgia
2. Mississippi
3. South Carolina
D. Affected States in EPA Region V
1. Illinois
2. Indiana
3. Michigan
E. Affected States and Local Jurisdictions
in EPA Region VI
1. Arkansas
2. New Mexico
3. New Mexico: Albuquerque-Bernalillo
County
4. Texas
F. Affected State in EPA Region VIII:
Colorado
1. Petitioner’s Analysis
2. The EPA’s Prior Proposal
3. The EPA’s Revised Proposal
G. Affected States and Local Jurisdictions
in EPA Region IX
1. Arizona
2. Arizona: Maricopa County
3. California: Eastern Kern Air Pollution
Control District
4. California: Imperial County Air
Pollution Control District
5. California: San Joaquin Valley Air
Pollution Control District
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H. Affected States and Local Jurisdictions
in EPA Region X
1. Alaska
2. Washington
3. Washington: Energy Facility Site
Evaluation Council
4. Washington: Southwest Clean Air
Agency
VIII. 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
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
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
J. Executive Order 12898—Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
L. Judicial Review
IX. Statutory Authority
E. What is the meaning of key terms
used in this notice?
For the purpose of this notice, 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.
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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 applicable
emission limitations or control
measures, or to excuse noncompliance
with applicable emission limitations or
control measures, which would be
binding on EPA and the public, in spite
of SIP provisions that would otherwise
render such conduct by the source a
violation.
The term EPA refers to the United
States Environmental Protection
Agency.
The term excess emissions means the
emissions of air pollutants from a source
that exceed any applicable SIP emission
limitations.
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 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 shutdown means, generally,
the cessation of operation of a source for
any reason.
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 notice, statements about SIPs in
general would also apply to tribal
implementation plans in general even
though not explicitly noted.
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55923
The term SNPR means or refers to this
supplemental notice of proposed
rulemaking.
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 SSM Policy refers to the
cumulative guidance that the EPA has
issued concerning its interpretation of
CAA requirements with respect to
treatment of excess emissions during
periods of startup, shutdown and
malfunction at a source. The most
comprehensive statement of the EPA’s
SSM Policy prior to this proposed
rulemaking is embodied in a 1999
guidance document discussed in more
detail in this proposal. This specific
guidance document is referred to as the
1999 SSM Guidance. When finalized,
this action will embody the EPA’s
updated SSM Policy for all SIP
provisions relevant to excess emissions
during SSM events.
The term startup means, generally,
the setting in operation of a source for
any reason.
II. Overview of This SNPR
A. How does this notice supplement or
revise the EPA’s already proposed
rulemaking to respond to the Petition?
By notice published on February 22,
2013 (78 FR 12459), we proposed to take
action on a petition for rulemaking that
the Sierra Club (the Petitioner) filed
with the EPA Administrator on June 30,
2011 (the Petition). In that February
2013 proposal notice, we described and
proposed the EPA’s response to each of
the Petition’s three interrelated requests
concerning the treatment of excess
emissions from sources during periods
of SSM in provisions in SIPs. Among
other requests, the Petitioner requested
that the EPA rescind its SSM Policy
element interpreting the CAA to allow
SIPs to include affirmative defense
provisions for violations due to excess
emissions during any type of SSM
events because the Petitioner contended
there is no legal basis for such
provisions in SIPs.
In this SNPR, we are supplementing
and revising what we earlier proposed
as our response to the Petitioner’s
requests, but only to the extent the
requests narrowly concern affirmative
defense provisions in SIPs. We are not
revising or seeking further comment on
any other aspects of the February 2013
proposed action.
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First, based on reexamination of
statutory requirements in light of a
recent court decision, we are revising
our interpretation of the CAA
concerning the issue of affirmative
defense provisions in SIPs. Accordingly
we propose to grant the Petitioner’s
overarching request that the EPA
rescind its SSM Policy element that
interpreted the CAA to allow affirmative
defense provisions in SIPs. Our
proposal to grant the Petition and to
rescind our SSM Policy with respect to
allowing affirmative defenses in SIPs is
a revision of the position we previously
proposed in the February 2013 proposal
notice (i.e., to grant in part and to deny
in part the Petition on this request). The
basis for our proposed revision of the
SSM Policy with respect to affirmative
defense provisions in SIPs and our
revised response to the Petition on this
issue is provided in more detail in
section IV of this SNPR.
Second, we propose to grant the
Petitioner’s request that the EPA apply
a revised interpretation to, and
effectuate the removal of, specific
existing affirmative defense provisions
in SIPs identified by the Petitioner as
inconsistent with the CAA.
Accordingly, we propose to grant the
Petition with respect to specific existing
affirmative defense provisions in the
SIPs of 13 states. For all 13 of these
states, we have already proposed SIP
calls for one or more SIP provisions in
our February 2013 proposal notice, but
note that we did not at that time
propose SIP calls for all affirmative
defense provisions in those states
because some of the provisions
appeared to comply with our policy at
the time of the proposal. What we are
proposing in this SNPR is to grant the
Petition with respect to all of the
identified affirmative defenses in these
states.
Third, in addition to the specific
affirmative defense provisions identified
by the Petitioner, the EPA has
independently identified other
affirmative defense provisions in SIPs
and is proposing in this SNPR to take
action with respect to these SIP
provisions as well. The newly identified
affirmative defense provisions are found
in six states’ SIPs. For two of the states
whose SIPs include newly identified
affirmative defense provisions,
California and Texas, we did not
propose a SIP call in the February 2013
proposal notice, as those states were not
identified in the Petition. For the other
four states (New Mexico, South
Carolina, Washington and West
Virginia), we did propose a SIP call in
the February 2013 proposal notice for
one or more SIP provisions, but at that
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time we did not propose a SIP call for
all affirmative defense provisions
identified in the Petition or for any
affirmative defense provisions that were
not identified in the Petition. The EPA
is now including 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
court decisions relevant to such
provisions under the CAA. Section VII
of this SNPR presents the EPA’s analysis
of each of the affirmative defense SIP
provisions at issue.
Fourth, for each of the states where
the EPA proposes to grant the Petition
concerning specific affirmative defense
provisions or to take action on such
provisions that EPA has independently
identified, the Agency also proposes to
find that the existing SIP provision at
issue is substantially inadequate to meet
CAA requirements and thus under CAA
authority proposes to issue a ‘‘SIP call’’
with respect to that SIP provision. For
those states for which the EPA
promulgates a final finding of
substantial inadequacy and a SIP call,
the EPA has in the February 2013 notice
proposed a schedule allowing the states
18 months within which to submit a
corrective SIP revision. In section II.C of
this SNPR, the EPA accordingly
proposes that this schedule apply to all
SIP provisions identified as
substantially inadequate in this
supplemental proposal.
What EPA proposes in this SNPR
supersedes the February 2013 proposal
only insofar as the SNPR supplements
or revises the February 2013 proposal
notice with respect to the issues related
to affirmative defense provisions in
SIPs. After evaluation of public
comment on this SNPR, the EPA intends
to complete its action on the Petition in
one final action, addressing together the
issues discussed in the February 2013
proposal notice and in this SNPR.
This action provides the EPA an
opportunity to invite public comment
on our SSM Policy specific to
affirmative defenses. In this SNPR, the
EPA is supplementing and revising its
proposed responses to the issues in the
Petition only to the extent they concern
affirmative defenses in SIPs, and the
EPA solicits comment on its proposed
responses. We note that an opportunity
to comment on the EPA’s proposed
responses to other issues raised in the
Petition was provided earlier, in the
comment period initiated by our
February 2013 proposal notice.
Therefore, comments received on this
SNPR will be considered germane only
to the extent they pertain specifically to
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the subject of affirmative defenses in
SIPs. The EPA does not intend to
consider any further comments related
to other aspects of the prior proposal, as
those other aspects are not being
reopened in this supplemental proposal.
Moreover, because the EPA’s
interpretation of the CAA with respect
to the legal basis for affirmative defense
provisions in SIPs has changed, the EPA
does not intend to respond to comments
previously submitted on the February
2013 proposal notice to the extent they
apply to issues related to affirmative
defense provisions in SIPs generally, or
to issues related to specific affirmative
defense provisions identified by the
Petitioner, as those comments will be
moot if the EPA finalizes its action as
discussed in this SNPR.
Through our proposed rulemaking
action, which includes the February
2013 proposal notice and this SNPR, the
EPA is clarifying, restating and revising
its SSM Policy. When finalized, this
action will embody the EPA’s updated
SSM Policy for all SIP provisions
relevant to excess emissions during
SSM events. The final action will also
clarify for the affected states how they
can resolve the identified deficiencies in
their SIPs, as well as provide all air
agencies guidance on SSM issues as
they further develop their SIPs in the
future.
B. To which air agencies does this SNPR
apply and why?
In general, the EPA’s action on the
Petition in this rulemaking may be of
interest to all air agencies because the
EPA is significantly 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 startup, shutdown and
malfunction. For example, the EPA is
proposing in this SNPR to grant the
Petitioner’s request that the EPA rescind
its interpretation of the CAA that would
allow affirmative defense provisions in
SIPs.
More specifically, this SNPR is
directly relevant to the states for which
we are now proposing SIP calls on the
basis that those SIP provisions are
inconsistent with CAA requirements
because they include affirmative
defenses. The EPA is proposing SIP
calls with respect to affirmative defense
SIP provisions in each of the 17 states
(for provisions applicable in 23
statewide and local jurisdictions 3 and
3 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
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no tribal areas) that show either ‘‘Grant’’
or ‘‘SIP call’’ as the proposed action
under table 1, ‘‘List of States With
Affirmative Defense SIP Provisions for
Which the EPA Proposes to Grant the
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Petition or to Address Such Provisions
Identified by the EPA.’’
TABLE 1—LIST OF STATES WITH SIP AFFIRMATIVE DEFENSE PROVISIONS FOR WHICH THE EPA PROPOSES TO GRANT
THE PETITION OR TO ADDRESS SUCH PROVISIONS IDENTIFIED BY THE EPA
Proposed action a with respect to affirmative defenses applicable
EPA region
State
III ...........
District of Columbia ........
Virginia ............................
West Virginia ..................
Georgia ...........................
Mississippi ......................
South Carolina ................
Illinois ..............................
Indiana ............................
Michigan .........................
Arkansas .........................
New Mexico ....................
IV ...........
V ............
VI ...........
. . . for malfunctions?
VIII .........
Texas ..............................
Colorado .........................
IX ...........
Arizona ............................
California .........................
X ............
Alaska .............................
Washington .....................
. . . for startup, shutdown or other modes?
Grant ........................................................................
Grant ........................................................................
SIP call (new) ...........................................................
Grant ........................................................................
Grant ........................................................................
SIP call (new) ...........................................................
Grant ........................................................................
Grant ........................................................................
Not applicable ..........................................................
Grant ........................................................................
Grant (for state) and SIP call (new for Albuquerque-Bernalillo County).
SIP call (new) ...........................................................
Grant (change from February 2013 proposal to
Deny).
Grant (for state and for Maricopa County; change
from February 2013 proposal to Deny).
SIP call (new for Eastern Kern APCD, new for Imperial County APCD and new for San Joaquin
Valley APCD).
Grant ........................................................................
Grant (for state) and SIP call (new for Energy Facility Site Evaluation Council and new for Southwest Clean Air Agency).
Not applicable.
Not applicable.
Not applicable.
Grant.
Grant.
Not applicable.
Not applicable.
Not applicable.
Grant.
Not applicable.
Grant (for state) and SIP call (new for Albuquerque-Bernalillo County).
Not applicable.
Grant.
Grant (for state and for Maricopa County).
Not applicable.
Grant.
Grant (for state) and SIP call (new for Energy Facility Site Evaluation Council and new for Southwest Clean Air Agency).
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a The proposed action under the SNPR is the same action as proposed in February 2013 unless noted in this table to be either new or a
change. The entry ‘‘SIP call’’ indicates that the affirmative defense provision was identified by the EPA independently and was not included in the
Petition.
For each state for which the proposed
action in this SNPR is either ‘‘Grant’’ or
‘‘SIP call,’’ the EPA proposes to find that
specific affirmative defense provisions
in the state’s SIP are substantially
inadequate to meet CAA requirements
for the reason that these provisions are
inconsistent with the CAA.
For each state for which the proposed
action on the Petition is either ‘‘Grant’’
or ‘‘SIP call,’’ the EPA is further
proposing in this SNPR to call for a SIP
revision as necessary to remove the
identified affirmative defense provisions
from the SIP at issue. The EPA’s revised
proposal under this SNPR concerning
affirmative defense provisions in
specific states’ SIPs is summarized in
section VII of this SNPR.
The SIP calls proposed in this SNPR
apply only to those specific provisions,
and the scope of each of the SIP calls
would be limited to those provisions.
This SNPR proposes SIP calls specific to
affirmative defense provisions in 17
states. The 17 states include two states
for which we are newly proposing SIP
calls: California and Texas. For the
remaining 15 states, we already
proposed SIP calls in the February 2013
proposal notice for one or more SSMrelated provisions, although in this
SNPR we are in some cases proposing
SIP calls for additional affirmative
defense provisions and in some cases
proposing SIP calls on a basis that has
changed from that of our earlier
proposal.
For Jefferson County, Kentucky, the
affirmative defense provisions for which
we proposed in February 2013 to grant
the Petition were subsequently removed
from the SIP.4 Thus, under this SNPR
we are proposing instead to deny the
Petition, and we are no longer proposing
a SIP call with respect to affirmative
defense provisions for this area because
the revision has already been made by
the state and approved into the SIP by
the EPA. Note, however, that we already
proposed a SIP call for Kentucky, for
other provisions (i.e., provisions not
concerning affirmative defenses in
Jefferson County), and this SNPR does
not change what we proposed in the
February 2013 proposal notice for the
other Kentucky SIP provisions.
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.
4 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).
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C. What is the EPA proposing for any
state that receives a finding of
substantial inadequacy and a SIP call?
If the EPA finalizes a finding of
substantial inadequacy and issues a SIP
call for any state, the EPA’s final action
will establish a deadline by which the
state must make a SIP submission to
rectify the deficiency. Pursuant to CAA
section 110(k)(5), the EPA has authority
to set a SIP submission deadline that
does not exceed 18 months from the
date the Agency notifies the state of the
inadequacy. The EPA intends to
disseminate notice of any final findings
of substantial inadequacy and the
issuance of any SIP call promptly after
the Administrator signs the final notice.
The EPA has already proposed to
provide the full 18-month period
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permissible by statute to give states
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.
Accordingly, the EPA is proposing to
establish the due date for the state to
respond to the SIP call to be 18 months
after the date on which the
Administrator signs the notice and
disseminates it to the states. If, for
example, the EPA’s final findings are
signed and disseminated in May 2015,
then the SIP submission deadline for
each of the states subject to the final SIP
call would fall 18 months later, in
November 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, in
notice-and-comment rulemaking on the
individual SIP submissions.
D. What are potential impacts on
affected states and sources?
The EPA’s February 2013 proposal
notice included an explanation of the
potential impacts on states and sources
of the SIP calls proposed in that notice.
That explanation is repeated here, with
additions to encompass and highlight
the potential impacts of the proposed
further revision of the SSM Policy to
disallow affirmative defense provisions
for malfunctions, the proposed revisions
to the earlier-proposed SIP calls and the
additional SIP calls proposed in this
notice. The issuance of a SIP call would
require an affected state to take one or
more actions to revise its SIP. These
actions are described below, followed
by a description of how those actions by
the state may, in turn, affect sources.
The states that would receive a SIP call
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. The EPA’s interpretation of those
requirements will be embodied in the
revised SSM Policy, which will be
stated in the Federal Register notice for
the final action in this rulemaking.
If the final SIP call identifies an
automatic exemption provision in a SIP
as contrary to the CAA, that provision
would have to be removed entirely. An
affected source could no longer depend
on the automatic exemption to avoid all
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liability for excess emissions. If the final
SIP call identifies an affirmative defense
provision in a SIP as contrary to the
CAA, that provision would have to be
removed entirely. An affected source
could no longer depend on the
affirmative defense to shield it from
monetary penalties assessed by a court
for excess emissions; however, even in
the absence of such affirmative defense
provision in the SIP, a court may
nevertheless decide not to assess
monetary penalties in light of the effort
by the source to avoid and/or minimize
the excess emissions. Some other
provisions, for example a problematic
enforcement discretion provision, could
be either removed entirely from the SIP
or retained if revised appropriately in
accordance with the EPA’s
interpretation of the CAA as described
in the EPA’s SSM Policy restatement in
the Federal Register notice for the final
rulemaking. The EPA notes that if a
state removes a SIP-called provision that
pertains to the exercise of enforcement
discretion rather than amending the
provision to remove any implication
that the provision limits EPA or citizen
suits, this removal would not bar the
ability of the state to apply discretion in
its own enforcement program but rather
would make the exercise of such
discretion case-by-case in nature.
In addition, affected states may
choose to consider reassessing
particular emission limitations, for
example to determine whether those
limits can be revised such that wellmanaged emissions during planned
operations such as startup and
shutdown would not exceed the revised
emission limitation, while still
protecting air quality. Such a revision of
an emission limitation may need to be
submitted as a SIP revision for EPA
approval if the existing limit to be
changed is already included in the SIP
or if the existing SIP relies on the
particular existing emission limit 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 the aspect of the existing
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
decisions it may make to change its
equipment or practices in order to
operate with emissions that comply
with the revised SIP, will depend on the
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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 recognizes that after all the
responsive SIP revisions are in place
and are being implemented by the
states, some sources may be required by
the state to, or may have strong business
reasons to, modify their physical
equipment or operating practices. These
changes could be aimed at improving
the effectiveness of the emission control
systems when operating as designed
during startup and shutdown,
increasing the durability of components
to reduce the occurrence of
malfunctions, and/or improving
monitoring systems to detect and
manage malfunctions promptly. If a
state merely removes an exemption,
affirmative defense provision, or
impermissible enforcement discretion
provision, an affected source may need
to, or may rationally choose to, make
changes of these types to better control
emissions so as to comply with existing
emission limits continuously and
thereby reduce the risk of enforcement
action. If the state establishes alternative
emission limits for startup and
shutdown operation, the source will
need to meet these limits, but the
required changes by the source, if any,
could be less extensive and cost less.
Because of the diversity of the SIP
provisions identified in our February
2013 proposal notice and in this
supplemental proposal, the diversity of
potentially affected sources, the
unknown nature of the states’ responses
to the SIP calls, and the fact that
because of existing automatic
exemptions many instances of excess
emissions have not routinely been
reported to air agencies or the EPA, the
EPA is unable to estimate the number,
nature and overall cost of the changes
that emission sources may ultimately
make as an indirect result of the
proposed SIP calls. To date, the EPA’s
review of the public comments received
on the February 2013 proposal indicates
that the information in those public
comments is insufficient to allow the
EPA to make such estimates.
This supplemental proposal concerns
only affirmative defense provisions. The
EPA’s longstanding interpretation of the
CAA as reflected in the existing SSM
Policy does not allow a SIP to contain
a director’s discretion provision for
excess emissions during SSM events
including malfunctions, an automatic
exemption for excess emissions during
SSM events including malfunctions, or
an enforcement discretion provision
that purports to restrict citizen suits or
federal personnel. The EPA is not
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proposing to change those longstanding
aspects of the SSM Policy. In our
February 2013 proposal notice, we
proposed to interpret the CAA to
disallow affirmative defense provisions
applicable to startup and shutdown, and
in this SNPR we are proposing to
interpret the CAA to further disallow
affirmative defense provisions
applicable to malfunctions. However, a
state that receives a SIP call that
includes a requirement to remove an
affirmative defense for excess emissions
would retain its ability to apply
discretion in its enforcement program.
Such enforcement discretion could be
exercised case-by-case, or the SIP may
include a provision that directs state
personnel in the exercise of enforcement
discretion. The criteria in an
enforcement discretion provision could
resemble the criteria previously
recommended by the EPA for an
affirmative defense provision for
malfunctions. The enforcement
discretion provision cannot apply to
anyone other than state personnel. For
example, the enforcement decisions of
state personnel cannot define what is or
is not a violation and cannot purport to
limit or bar the exercise of enforcement
discretion by the EPA or other parties
pursuant to the citizen suit provision.
An affected state could include an
appropriate enforcement discretion
provision in the same SIP submission
that addresses the SSM provisions
identified in the SIP call, or it could
submit it separately.
Similar to the dependent nature of the
potential impacts of our proposals in the
aggregate as described above, the
implications of the specific change
being proposed in this notice—to
disallow affirmative defense provisions
for malfunctions—for a regulated source
in a given state, in terms of whether and
how the source would potentially have
incentives to change its equipment or
practices, will depend on the nature and
frequency of the source’s malfunction
events and on how the state has chosen
to revise the SIP to address excess
emissions during malfunction events.
After responsive SIP revisions are in
place and are being implemented by the
states, some sources may have strong
incentives to take steps to increase the
durability of components and
monitoring systems to detect and
manage malfunctions promptly, as a
court may take such steps into
consideration when determining a
remedy should there be an enforcement
action against excess emissions that
have occurred during a malfunction. For
the same reasons as cited above, the
EPA is unable to estimate the number,
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nature and overall cost of the changes
that emission sources may ultimately
make as an indirect result of the revised
and additional SIP calls proposed in
this SNPR.
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 the SIP calls.
The EPA believes that among the
impacts on states and their residents of
the SIP calls proposed in the February
2013 proposal notice and in this SNPR
will be reduced aggregate emissions
from industrial sources and improved
air quality. For the same reasons that we
are unable to estimate the number,
nature and overall cost of the changes
that sources may ultimately make as an
indirect result of the proposed SIP calls,
we are unable to estimate the total
emission reduction that will be
achieved for any particular pollutant or
how those reductions will be distributed
across the affected states and
communities. The EPA believes that it
is obligated and authorized to issue the
proposed SIP calls to remove affirmative
defense provisions even though the EPA
is unable to estimate the number,
nature, cost and resulting emission
reductions that will indirectly result
from the removal of such provisions
from the affected SIPs.
III. Background for This SNPR
A. What did the Petitioner request?
The Petitioner submitted the Petition
to the EPA on June 30, 2011. In the
Petition, the Petitioner requested that
the EPA address various types of alleged
deficiencies in the Agency’s SSM
Policy. The SSM Policy provides EPA
guidance to states with respect to SIP
provisions that apply to excess
emissions from sources that occur
during SSM events. As described in the
February 2013 proposal notice, the
Petitioner included three interrelated
overarching requests concerning the
treatment in SIPs of excess emissions
from sources during SSM events. In
addition, the Petitioner requested that
the EPA evaluate specifically identified
existing provisions in the SIPs of 39
states that the Petitioner alleged are
inconsistent with CAA requirements
and with the EPA’s interpretations of
the CAA in the SSM Policy. The
Petitioner identified the specific
provisions and explained the basis for
its belief that the provisions in question
violate one or more requirements of the
CAA.
First, the Petitioner argued that any
SIP provision providing an affirmative
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55927
defense for monetary penalties for
excess emissions applicable in judicial
proceedings is contrary to the CAA. The
Petitioner based its overarching
arguments concerning the legality of
affirmative defense provisions in SIPs
upon the explicit statutory provisions of
CAA sections 113 and 304. 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
affirmative defenses for excess
emissions related to startup or
shutdown. See section IV of our
February 2013 proposal notice for the
EPA’s proposed response at that time
concerning the issue of affirmative
defense provisions in SIPs. As
explained in section III.B of this SNPR,
the EPA did make such distinction in its
proposed response in the February 2013
proposal notice, then reasoning that
affirmative defense provisions were
appropriate for violations due to
malfunction events. The issue of
affirmative defense provisions in SIPs is
the focus of this SNPR, and the EPA is
herein proposing to revise its prior
proposed action on this issue.
Second, the Petitioner argued that
many existing SIPs contain
impermissible provisions,5 including
automatic exemptions from applicable
emission limitations during SSM events,
director’s discretion provisions that
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 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.
Among the alleged deficient provisions
were many that function as affirmative
defense provisions, regardless of
whether that specific term is used in the
state law or regulation at issue and
regardless of whether the EPA
5 The term ‘‘impermissible provision’’ as used
throughout this SNPR is generally intended to refer
to a SIP provision that the EPA believes to be
inconsistent with requirements of the CAA. As
described later in this SNPR (see section VII.A), the
EPA is proposing to find a SIP ‘‘substantially
inadequate’’ to meet CAA requirements where the
EPA determines that a specific SIP provision is
impermissible under the CAA.
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previously explicitly evaluated the
provision as an affirmative defense as
described in the 1999 SSM Guidance.
See section V and section IX of our
February 2013 proposal notice for the
EPA’s prior proposed responses
concerning the various alleged SIP
deficiencies; only issues related to
affirmative defense provisions are
addressed in this SNPR, and the EPA is
proposing to revise its prior proposed
action only with respect to specific
affirmative defense SIP provisions.
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. See section VI
of our February 2013 proposal notice for
the EPA’s proposed response
concerning the issue of interpretive
letters; that issue is not further
addressed in this SNPR and the EPA is
seeking no additional comment on this
issue.
Among the fundamental concerns
raised by the Petitioner was the claim
that the EPA’s SSM Policy is
inconsistent with statutory requirements
because the Agency interprets the CAA
to authorize states to create SIP
provisions that provide an affirmative
defense for qualifying sources to assert
in the event of violations for excess
emissions that occur during SSM
events. Even though the EPA interpreted
the CAA to allow narrowly drawn
affirmative provisions in SIPs that are
consistent with recommended criteria
intended to assure that states include
appropriate limitations and conditions
for affirmative defenses, the Petitioner
objected to any such provisions. The
Petitioner argued that any affirmative
defense that purports to eliminate or
alter the jurisdiction of federal courts to
assess monetary penalties or any other
form of relief for violations of SIP
emission limits is contrary to the
requirements of the CAA. In other
words, no matter how narrowly drawn
and no matter what the limitations or
conditions for the affirmative defense
may be, the Petitioner argued that no
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such affirmative defenses are consistent
with CAA requirements for SIP
provisions.
In addition, the Petitioner identified
specific existing provisions in the SIPs
of 14 states that were structured or
characterized as affirmative defenses,
regardless of whether the provisions in
question were consistent with the EPA’s
SSM Policy as explained in the 1999
SSM Guidance. The Petitioner
contended that none of these identified
provisions are consistent with CAA
requirements because they improperly
purport to shield sources from liability
for violations of SIP emission
limitations through various
mechanisms. The Petitioner argued that
such provisions are therefore
inconsistent with sections 113 and 304
and the fundamental enforcement
structure of the CAA created by
Congress. Even if the provisions were
not otherwise contrary to CAA
requirements, the Petitioner argued,
each of the identified affirmative
defense provisions is also inconsistent
in one or more ways with the EPA’s
own interpretation of the CAA provided
in the 1999 SSM Guidance. For
example, some of the identified
provisions do not apply only to
monetary penalties and purport to bar
injunctive relief as well, some of the
provisions do not require sources to
qualify for an affirmative defense
through criteria comparable to those
recommended by the EPA, and some of
the provisions appear to make state
personnel the unilateral final arbiters of
whether a source qualified for an
affirmative defense rather than requiring
that this be determined by a trier of fact
in a judicial enforcement proceeding,
thereby purporting to preclude
enforcement by the EPA under section
113 or by others pursuant to the citizen
suit authority of section 304.
B. What did the EPA previously propose
in this rulemaking with respect to
affirmative defense provisions in SIPs?
The EPA published its proposed
response to the Petition on February 22,
2013. In that proposal, the EPA
explained the claims asserted by the
Petitioner, articulated its evaluation of
those claims, and proposed to take
actions with respect to each of the
overarching and specific claims. The
proposal addressed a number of
interrelated issues concerning the
proper treatment of excess emissions
during SSM events in SIP provisions. A
key component of the proposal,
however, was the EPA’s evaluation of
the Petitioner’s claims concerning
affirmative defense provisions in SIPs.
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With respect to the Petitioner’s
overarching claim that the EPA’s
interpretation of the CAA in the SSM
Policy permitting states to have
affirmative defenses in SIP provisions is
in error, the EPA proposed to deny in
part and to grant in part. The EPA
proposed to deny the Petitioner’s claim
with respect to affirmative defenses
applicable to malfunction events, on the
theory that the CAA allows such
provisions so long as they are
sufficiently narrowly drawn. The EPA
reasoned that such provisions are
appropriate for violations due to
genuine malfunction events, in order to
resolve the inherent tension between the
fact that the CAA requires that SIP
emission limitations must apply
continuously and the fact that even
properly designed, maintained and
operated sources may sometimes have
difficulty meeting emission limitations
for reasons beyond their control. By
contrast, the EPA proposed to grant the
Petitioner’s claim with respect to
affirmative defenses applicable to
planned events such as startup and
shutdown. This was a change from the
EPA’s interpretation of the CAA in the
1999 SSM Guidance, in which the EPA
previously recommended that states
could elect to create such affirmative
defense provisions for startup and
shutdown events, so long as the
provisions were narrowly drawn and
consistent with the recommended
criteria to assure that they meet CAA
requirements. The EPA’s evaluation of
the Petition and the statutory basis for
affirmative defense provisions caused
the Agency to reconsider the
appropriateness of affirmative defense
provisions applicable during startup
and shutdown, which are ordinary
modes of operation that are generally
predictable and within the control of the
source. As explained in more detail in
the February 2013 proposal notice, the
EPA’s evaluation in light of then recent
case law indicated that providing
affirmative defenses applicable during
planned events such as startup and
shutdown was not consistent with the
EPA’s interpretation of the CAA to
support such provisions for
malfunctions and was tantamount to
allowing sources to be shielded from
monetary penalties for violations due to
conduct that is predictable and within
their control.6
6 Some commenters on the February 2013
proposal notice 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 it will at least occasionally start up
and shut down, and thus these modes of source
operation are ‘‘normal’’ in the sense that they are
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With respect to the specific
affirmative defense provisions identified
by the Petitioner as deficient, the EPA
evaluated each of the provisions to
determine whether they were consistent
with the EPA’s interpretation of the
CAA concerning such provisions at the
time. This evaluation included
examination of the specific provisions
in light of the EPA’s interpretations of
the CAA and recommendations in the
1999 SSM Guidance, as updated in the
February 2013 proposal notice (e.g., the
revision to the EPA’s guidance
concerning affirmative defenses for
single sources with the potential to
cause exceedances of the NAAQS). As a
result, the EPA proposed to deny the
Petition with respect to the claims
concerning affirmative defense
provisions to the extent applicable to
malfunction events in three
jurisdictions: (i) Arizona; (ii) Maricopa
County, Arizona; and (iii) Colorado. The
EPA proposed to deny the Petition with
respect to these affirmative defense
provisions to the extent applicable to
malfunction events because at that time
the EPA believed them to be consistent
with the CAA and EPA guidance in the
1999 SSM Policy. The EPA proposed to
grant the Petition with respect to the
claims concerning affirmative defense
provisions in the following
jurisdictions: (i) Alaska; (ii) Arizona
(affirmative defense for startup and
shutdown only); (iii) Maricopa County,
Arizona (affirmative defense for startup
and shutdown only); (iv) Arkansas; (v)
Colorado (affirmative defense for startup
and shutdown only); (vi) District of
Columbia; (vii) Illinois; (viii) Indiana;
(ix) Jefferson County, Kentucky; 7 (x)
Michigan; (xi) Mississippi; (xii) New
Mexico; (xiii) Virginia; and (xiv)
Washington. The EPA’s evaluation of
the specific provisions in these states
identified a variety of deficiencies as
explained in more detail in section IX
of the February 2013 proposal notice. In
general, the EPA considered these
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 and which could not have been precluded
by proper source design, maintenance and
operation.
7 The EPA notes that the state of Kentucky has
now revised the SIP provisions applicable to
Jefferson County (Louisville) and eliminated the SIP
inadequacies identified in the February 2013
proposal notice. The EPA has already approved the
necessary SIP revisions. See 79 FR 33101 (June 10,
2014). Accordingly, the EPA’s final action on the
Petition will not need to include a finding of
substantial inadequacy and SIP call for Jefferson
County, Kentucky. The recently approved revision
did not create an affirmative defense provision, so
there is no need to readdress this issue in this
jurisdiction.
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provisions deficient because they
extended not only to monetary penalties
but also to injunctive relief, because
they had insufficient criteria to assure
that they were sufficiently narrowly
drawn, because they extended to events
that were not malfunctions, or because
of some combination of these concerns.
C. What events necessitated this SNPR?
Subsequent to EPA’s issuance of the
February 2013 proposal, a federal court
ruled that CAA sections 113 and 304
preclude EPA authority to create
affirmative defense provisions in the
Agency’s own regulations imposing
emission limits 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 U.S. Court of
Appeals for the District of Columbia
Circuit issued that decision in NRDC v.
EPA on April 18, 2014.8 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 court’s decision in NRDC v. EPA 9
pertained to a challenge to the EPA’s
National Emission Standards for
Hazardous Air Pollutants (NESHAP)
regulations issued pursuant to CAA
section 112 to regulate hazardous air
pollutants from sources that
manufacture Portland cement.10 In
addition to imposing specific emission
limitations for the relevant pollutants
from the affected sources, the EPA also
created an affirmative defense that
sources could assert in judicial
enforcement proceedings for violations
due to excess emissions that occur
during qualifying malfunction events.
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 and the source’s conduct before,
during and after the event. The EPA
notes that these specific criteria
8 See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir.
2014).
9 Id.
10 The NESHAP promulgated after the 1990 CAA
Amendments are also referred to as ‘‘maximum
achievable control technology’’ or ‘‘MACT’’
standards.
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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 explicitly repeated
these same recommended criteria to
states in the February 2013 proposal
notice. In addition, the EPA provided
sample regulatory text in the February
2013 proposal notice drawn from a
comparable NESHAP that the EPA
recently promulgated for another source
category, to illustrate how states might
elect to word appropriate affirmative
defense provisions in SIPs.11 In other
words, the affirmative defense provision
at issue in the NRDC v. EPA case was
essentially equivalent to the type of
provision, both conceptually and in
terms of specific regulatory language,
which the EPA would previously have
considered consistent with CAA
requirements for affirmative defense
provisions for malfunction events in
SIPs.
The EPA believes that the opinion of
the court in NRDC v. EPA has
significant impacts on the Agency’s
SSM Policy and on the positions that
the EPA took in the February 2013
proposal notice with respect to issues
related to affirmative defenses. Section
IV of the February 2013 proposal notice
describes in detail the EPA’s prior
evaluation of the Petition with respect
to the overarching issue of affirmative
defense provisions in SIPs. In general,
the EPA proposed: (i) To deny the
request to rescind the SSM Policy with
respect to interpreting the CAA to allow
states to elect to include appropriately
tailored affirmative defense provisions
for violations due to excess emissions
during periods of malfunction; and (ii)
to grant the request to rescind the SSM
Policy with respect to affirmative
defense provisions for violations due to
excess emissions during periods of
startup and shutdown. Consistent with
this interpretation of the CAA, the EPA
previously proposed to revise its SSM
Policy to clarify that states could elect
to create affirmative defenses in SIP
provisions only for malfunction events,
and so long as such provisions were
narrowly drawn, as recommended in the
EPA’s guidance. Even these more
narrowly defined affirmative defense
provisions are no longer consistent with
CAA requirements under the reasoning
adopted by the court in NRDC v. EPA.
In addition, section IX of the February
2013 proposal notice provided the
EPA’s evaluation of each of the specific
11 See February 2013 proposal notice, 78 FR
12459 at 12478–80.
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SIP provisions identified by the
Petitioner and proposed to take action
on them, in accordance with EPA’s
interpretation of the CAA for such
provisions at that time. These SIP
provisions included affirmative defense
provisions of various types, including
some that the Agency had previously
approved as consistent with its
interpretation of the CAA in the 1999
SSM Guidance. The EPA evaluated
these provisions on a case-by-case basis
and proposed either to grant or to deny
the Petition with respect to each
provision, consistent with the EPA’s
then current interpretation of the CAA
for such provisions.
The recent decision by the U.S. Court
of Appeals for the District of Columbia
Circuit in NRDC v. EPA has called into
question the legal basis for affirmative
defense provisions applicable to
violations of CAA requirements. The
reasoning used by that 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 the federal courts to
impose relief for violations of CAA
requirements in SIPs, including the
courts’ power to restrain violations, to
require compliance, and to assess
monetary penalties for any violations in
accordance with factors provided in
CAA section 113(e)(1).
The EPA acknowledges that its SSM
Policy since the 1999 SSM Guidance
has interpreted the CAA in such a way
that states could in effect alter the
jurisdiction of federal courts to assess
monetary penalties under certain
conditions through creation of
affirmative defenses. In other words,
even though Congress explicitly
empowered federal courts to assess
monetary penalties for a CAA violation,
an affirmative defense could, contrary to
the statute, limit the ability of a court to
do so. The EPA believes that the court’s
decision in NRDC v. EPA compels the
Agency to reevaluate its interpretation
of the CAA and its proposed action on
the Petition concerning affirmative
defense provisions in SIPs. As a result,
in this SNPR we are revising what we
previously proposed as our response to
the Petition, but only to the extent
relevant to the issue of affirmative
defense provisions in SIPs. In section
III.C of this SNPR, the EPA explains in
detail why the court’s interpretation of
relevant CAA provisions indicates that
states do not have authority to create,
and thus the EPA does not have
authority to approve, SIP provisions that
include an affirmative defense that
would operate to alter the jurisdiction of
federal courts to assess penalties or
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other forms of relief authorized in
sections 113 and 304. In section VII of
this SNPR, the EPA explains how the
decision affects the February 2013
proposal with respect to specific
provisions in the SIPs of particular
states. In section VII of this SNPR, the
EPA also includes affirmative defense
provisions found in six states’ SIPs that
the Agency has identified
independently, and the EPA explains
why each of these additional provisions
fails to meet CAA requirements and
thus necessitates a finding of substantial
inadequacy and a SIP call as well. The
EPA is including the additional
provisions to assure that it provides
comprehensive guidance with respect to
this issue to all states and to alleviate
confusion that may arise as a result of
recent regulatory actions and litigation
concerning affirmative defense
provisions.
IV. What is the EPA proposing through
this SNPR in response to the
petitioner’s request for rescission of the
EPA policy on affirmative defense
provisions?
A. Petitioner’s Request
The February 2013 proposal notice
explained in detail the Petitioner’s
claims with respect to affirmative
defense provisions in SIPs, but it is
helpful to repeat the full argument here
in order to explain the reasons for the
EPA’s revised proposal in this SNPR.
Understanding those specific claims in
light of the court’s decision in the NRDC
v. EPA decision serves to illustrate the
need for the EPA to reexamine the
statutory basis for any affirmative
defense in SIP provisions, not merely
those provisions limited to malfunction
events or to those for malfunction
events that are sufficiently narrowly
drawn to be consistent with the EPA’s
prior interpretation of the CAA in the
1999 SSM Guidance.
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.12 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.13 Alternatively, if the EPA denies
these two related requests, the Petitioner
requested 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.14 The EPA
interpreted this latter request to refer to
the specific SIP provisions that the
Petitioner identified in a separate
section of the Petition, titled, ‘‘Analysis
of Individual States’ SSM Provisions,’’
including specific existing affirmative
defense provisions.
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 policy. Specifically,
the Petitioner cited to two statutory
grounds, CAA sections 113(b) and (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.
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.’’ 15 The
Petitioner first argued that in any
judicial enforcement action in the
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.’’ In addition, the
Petitioner cited the provisions of CAA
section 304(a), which specifically
pertain to citizen suit enforcement and
which reiterate that the federal courts
have jurisdiction to assess monetary
penalties for violations as well as to
impose other remedies.16 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 federal courts to assess monetary
penalties for violations if a source is
shielded from monetary penalties under
an affirmative defense provision in the
approved SIP.17 The Petitioner
14 Petition
at 12.
at 10.
16 Petition at 11.
17 Id.
15 Petition
12 Petition
at 11.
13 Id.
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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.’’ 18
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.19 That
section provides that either the
Administrator or the court:
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. . . shall take into consideration (in
addition to such other factors as justice may
require) the size of the business, the
economic impact of the penalty on the
business, the violator’s full compliance
history and good faith efforts to comply, the
duration of the violation as established by
any credible evidence (including evidence
other than the applicable test method),
payment by the violator of penalties
previously assessed for the same violation,
the economic benefit of noncompliance, and
the seriousness of the violation.
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. In
particular, the Petitioner enumerated
those factors that it alleges the EPA’s
SSM Policy totally omits: (i) The size of
the business; (ii) the economic impact of
the penalty on the business; (iii) the
violator’s full compliance history; (iv)
the economic benefit of noncompliance;
and (v) the seriousness of the violation.
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.’’ 20
The Petitioner drew no distinction
between affirmative defenses for
unplanned events such as malfunctions
and planned events such as startup and
shutdown.
18 Id.
19 Id.
20 Id.
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B. The EPA’s Proposed Revised
Response
As a preliminary matter, the EPA
acknowledges that its interpretation of
the CAA in its SSM Policy, since
issuance of the 1999 SSM Guidance, has
been that states may elect to have
narrowly drawn affirmative defense
provisions in SIPs, so long as they meet
certain requirements (e.g., that they only
apply to monetary penalties and not to
injunctive relief). The EPA’s
longstanding guidance has also
provided very specific
recommendations to states concerning
how to develop affirmative defense
provisions that would be consistent
with CAA requirements (e.g., such
provisions should require sources to
prove in an enforcement proceeding that
the violations are not so repetitive as to
indicate that the source is improperly
designed, maintained or operated). The
EPA further acknowledges that it has
previously approved affirmative defense
provisions in SIPs or, when appropriate,
promulgated affirmative defenses in
federal implementation plans (FIPs).
Indeed, the EPA’s approval of
affirmative defense provisions in SIPs or
promulgation of such provisions in FIPs
has been upheld by courts in several
decisions.21
Most significantly, the EPA’s
November 2010 approval of an
affirmative defense applicable to
‘‘unplanned events’’ (i.e., malfunctions)
and disapproval of an affirmative
defense applicable to ‘‘planned events’’
(e.g., planned startup and shutdown) in
a Texas SIP submission were challenged
by numerous parties. In 2012, the U.S.
Court of Appeals for the 5th Circuit
upheld EPA’s actions, including both
the Agency’s approval and disapproval
of the affirmative defense provisions
applicable to the respective types of
events.22 In that litigation, the EPA
defended its approval and disapproval
actions, including the filing of an
opposition to a petition for certiorari
filed by industry challengers concerning
the disapproval of the affirmative
defense for planned events. Throughout
the litigation over the Texas SIP
21 See Luminant Generation Co. v. EPA, 714 F.3d
841 (5th Cir. 2012) (upholding the EPA’s approval
of an affirmative defense applicable during
malfunctions in a SIP submission as a permissible
interpretation of the statute under Chevron step 2
analysis), cert. denied, 134 S.Ct. 387 (2013); Mont.
Sulphur & Chemical Co. v. EPA, 666 F.3d 1174,
1191–93 (9th Cir. 2012) (upholding the EPA’s
creation of an affirmative defense applicable during
malfunctions in a FIP); Ariz. Public Service Co. v.
EPA, 562 F.3d 1116, 1130 (9th Cir. 2009)
(upholding the EPA’s creation of an affirmative
defense applicable during malfunctions in a FIP).
22 Luminant Generation Co. v. EPA, 714 F.3d 841
(5th Cir. 2012), cert. denied, 134 S.Ct. 387 (2013).
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revision, the EPA reiterated what was at
the time its view that appropriately
drawn affirmative defense provisions
applicable to malfunctions can be
consistent with CAA requirements for
SIPs. In particular, the EPA argued in
that litigation that sections 113 and 304
do not preclude appropriately drawn
affirmative defense provisions for
malfunctions in SIPs. The 5th Circuit
applied the two-step Chevron analysis
to the EPA’s interpretation of section
113 in connection with both the
approval of the affirmative defense
provision applicable to ‘‘unplanned
events’’ and the disapproval of the
affirmative defense provision applicable
to ‘‘planned events.’’ With respect to
both the approval and disapproval, the
court held that the Agency’s
interpretation of the CAA at that time
was a ‘‘permissible interpretation of
section [113], warranting deference.’’ 23
Subsequent events have caused EPA to
reevaluate this interpretation of the
CAA requirements.
The EPA has carefully evaluated the
more recent April 2014 decision of the
U.S. Court of Appeals for the District of
Columbia Circuit in NRDC v. EPA in
which the court came to a contrary
conclusion with respect to the legal
basis for an affirmative defense
provision in the Agency’s own
regulations.24 In light of this more
recent decision, the EPA 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.
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.25 In order to explain more
fully why the EPA believes that the
court’s decision in NRDC v. EPA
requires the Agency to change its SSM
Policy and to revise its February 2013
proposal notice with respect to
affirmative defense provisions in SIPs,
the EPA will first explain why it
believes that the reasoning of the court’s
decision is more broadly applicable and
will then explain why it believes that
the specific reasons given by the court
for rejecting the EPA’s prior
interpretation of the CAA would apply
with equal weight to SIP provisions.
23 See Luminant Generation Co. v. EPA, 714 F.3d
841, at 851 and 856 (5th Cir. 2012).
24 See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir.
2014).
25 See, e.g., White Stallion Energy Center, LLC v.
EPA, 748 F.3d 1222, 1235 (D.C. Cir. 2014) (citing
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)).
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The EPA believes that the reasoning
of the court’s decision in NRDC v. EPA
applies more broadly than to the
specific facts of the case for several
reasons. First, the EPA notes that the
court’s decision did not turn upon the
specific provisions of CAA section 112.
Although the court only evaluated the
legal validity of an affirmative defense
provision created by the EPA in
conjunction with specific standards
applicable to manufacturers of Portland
cement, the court based its decision
upon the provisions of sections 113 and
304 that pertain to enforcement of CAA
requirements more broadly, including to
SIPs. Sections 113 and 304 pertain to
administrative and judicial enforcement
generally and are in no way limited to
enforcement of emission limitations
promulgated by the EPA under section
112. Thus, the EPA does not think that
the mere fact that the court only
addressed the legality of an affirmative
defense provision in this particular
context means that the court’s
interpretation of sections 113 and 304
does not also apply more broadly. To
the contrary, the EPA sees no reason
why the logic of the court concerning
sections 113 and 304 would not apply
to SIP provisions as well.
Second, the EPA notes that 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. The court was clearly cognizant
that a similar legal issue had arisen in
litigation in the U.S. Court of Appeals
for the 5th Circuit concerning the Texas
SIP and merely acknowledged that fact
and clearly stated in this footnote: ‘‘[W]e
do not here confront the question
whether an affirmative defense may be
appropriate in a State Implementation
Plan.’’ 26 Given that the case before the
court did not pertain to SIP provisions
and thus the legal validity of affirmative
defense provisions in a SIP did not need
to be decided, the EPA believes that
footnote 2 simply reflects the court’s
desire to be clear that it was only
addressing the question of whether
sections 113 and 304 preclude any EPA
authority to create an affirmative
defense applicable to private civil suits
in its own regulations. However, the
EPA believes that the logic of the court’s
decision in NRDC v. EPA regarding the
import of sections 113 and 304 does
extend to SIP provisions. In the
remainder of this section of the SNPR,
we explain in greater detail why we
26 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C.
Cir. 2014).
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now think the D.C. Circuit’s reading of
the statute is the correct one.
Finally, the EPA notes that the fact
that the court only addressed the
legality of affirmative defense
provisions in the context of citizen suit
enforcement—which by definition is
judicial rather than administrative
enforcement—does not affect the
relevance of the court’s reasoning with
respect to the legal basis for affirmative
defenses in SIP provisions. Under the
CAA, a state has the initial
responsibility to develop and submit
SIP submissions to meet various
requirements (e.g., to impose reasonably
available control measures on sources in
nonattainment areas). The EPA’s
evaluation and approval of the state’s
SIP submission in turn makes the
contents of the submission federally
enforceable parts of the SIP. Pursuant to
sections 113 and 304, the state, the EPA
and citizens then have the ability to
seek to bring enforcement actions for
violations of the requirements of the SIP
in federal court. Thus, the court’s logic
in NRDC v. EPA would also apply to the
provisions of the state’s SIP, and the
jurisdiction of a court to impose
penalties or other forms of relief for
violations of SIP requirements under the
CAA cannot be altered by an affirmative
defense in a state’s SIP provision in the
same way that it cannot be altered by
such a provision in an EPA regulation.
Just as the court’s decision is not
limited in ways that would preclude it
from applying to SIP provisions, the
EPA also believes that the logic of the
decision would apply with equal weight
to affirmative defense provisions in SIPs
for a number of reasons. Most
significantly, the court rejected a series
of arguments that the EPA made to
support its legal authority under the
CAA to create an affirmative defense in
the Portland cement NESHAP. The EPA
made the same or comparable
arguments to support its interpretation
of the CAA to provide authority for
states to elect to create, and for the EPA
to approve, affirmative defense
provisions in SIPs applicable in judicial
enforcement cases. The EPA has
carefully evaluated the reasoning of the
court in the NRDC v. EPA decision and
now believes that its prior interpretation
of the CAA with respect to affirmative
defense provisions in the SSM Policy, as
first stated in the 1999 SSM Guidance
and as updated in the February 2013
proposal notice, was incorrect and
would not withstand judicial review in
light of the NRDC v. EPA decision.
Evaluation of the key points of the
court’s reasoning in the decision
indicates that the court’s interpretation
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of the relevant statutory provisions
applies equally to SIP provisions.
First, the NRDC v. EPA court
examined the litigants’ key argument
that the EPA has no authority to alter
the jurisdiction of courts to assess
monetary penalties or to alter the factors
that courts must consider when
assessing the amount of such penalties.
The litigants argued that the EPA’s
creation of an affirmative defense had
the effect of altering or eliminating the
jurisdiction of the federal courts to
impose penalties in a citizen suit
enforcement proceeding. The NRDC v.
EPA court evaluated the litigants’
argument with a straightforward reading
of CAA section 304(a) concerning the
rights of ‘‘any person’’ to bring an
enforcement action and the jurisdiction
of federal courts to assess liability and
penalties in such an action and of CAA
section 113(e)(1) concerning the factors
that courts must consider when
assessing civil penalties. Citing recent
U.S. Supreme Court precedent, the court
reasoned that section 304(a) creates a
private right of action and that the
courts alone are vested with authority to
determine the scope of remedies in
judicial enforcement, rather than the
administrative agency. The NRDC v.
EPA court treated this issue as a
question that it could answer with a
Chevron step 1 plain reading of the
statute and evidently saw no ambiguity
concerning whether the EPA has
authority to alter the rights of litigants
to seek monetary penalties for violations
or to alter the jurisdiction of the federal
courts to assess such penalties. In
retrospect and in light of the court’s
decision, the EPA believes that this is
the correct reading of CAA sections 113
and 304 with respect to this question in
the SIP context as well. Thus, these
statutory provisions functionally bar
affirmative defense provisions in SIPs
that would have the effect of altering the
rights of litigants or the authority of the
courts in the event of enforcement for
violations of SIP requirements.
Second, the NRDC v. EPA court
evaluated the EPA’s argument that an
affirmative defense ‘‘fleshes out the
statutory requirement that penalties be
applied only when ‘appropriate.’ ’’ 27
The EPA had argued that CAA section
304(a) provides federal district courts
with jurisdiction to ‘‘apply any
appropriate civil penalties’’ and that
such penalties would only be
‘‘appropriate’’ if the regulation being
enforced specifically provided for such
penalties in the first place. In other
words, the EPA argued, if the regulation
27 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C.
Cir. 2014).
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contained an affirmative defense that
precluded monetary penalties under
certain circumstances, then it would not
be ‘‘appropriate’’ for a court to assess
the penalties in those circumstances.
The NRDC v. EPA court disagreed with
this argument, stating unequivocally
that under the CAA ‘‘deciding whether
penalties are ‘appropriate’ is a job for
the courts, not EPA.’’ 28 To the extent
that a defendant in an enforcement case
has a basis for arguing that monetary
penalties should be reduced, the court
stated that CAA section 113(e)(1)
already provides courts with factors that
may be taken into consideration. The
court emphasized that in judicial
enforcement, the court decides whether
or not to accept a defendant’s arguments
concerning the assessment of penalties,
not the EPA. In the February 2013
proposal notice, the EPA relied on this
same argument to support its position
that affirmative defense provisions in
SIPs would not contradict CAA sections
113 and 304 and to justify its proposed
denial of the Petition with respect to
affirmative defenses applicable to
malfunctions events.29 Given that the
court has rejected this interpretation of
the CAA for the EPA’s own regulations,
the EPA believes that the same principle
applies to states that seek to alter the
ability of federal courts to assess
penalties for violations of CAA
requirements in SIP provisions. If states
have no authority to alter the
jurisdiction of federal courts to impose
remedies for violations explicitly
provided for in the CAA, then this
affects the EPA’s authority to approve
any such SIP provisions as consistent
with the requirements of the CAA.
Pursuant to its authority and
responsibility under sections 110(k),
110(l) and 193, the EPA can only
approve SIP provisions that comply
with the applicable substantive
requirements of the CAA. Approving an
affirmative defense provision into a SIP
that would purport to contravene the
jurisdiction of federal courts to
determine liability and to impose
remedies in accordance with sections
113 and 304 would thus be
inappropriate.
Third, the NRDC v. EPA court
scrutinized the EPA’s argument that it
has authority under CAA section 301 to
create an affirmative defense through
the general authority of the EPA
Administrator ‘‘to prescribe such
regulations as are necessary to carry out
28 See NRDC v. EPA, 749 F.3d 1055, 1062 (D.C.
Cir. 2014).
29 See February 2013 proposal notice, 78 FR
12459 at 12472 (middle column).
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his functions under’’ the CAA.30 In the
February 2013 proposal notice, the EPA
did not make this particular argument
because it was not proposing EPA
regulations to implement the CAA,
rather it was proposing action on a
petition for rulemaking that entails
evaluating the EPA’s guidance to states
in the SSM Policy concerning whether
specific types of SIP provisions are
consistent with CAA requirements.
Nevertheless, the EPA notes, the court
rejected the notion that the EPA has any
authority to promulgate regulations that
would alter or eliminate the jurisdiction
of federal courts to assess penalties
when Congress has already directly
spoken to that issue. As the court
expressed it, ‘‘EPA cannot rely on its
gap-filling authority to supplement the
Clean Air Act’s provisions when
Congress has not left the agency a gap
to fill.’’ The EPA believes that the
court’s reasoning would extend to
situations where the EPA is required to
determine whether or not an affirmative
defense provision is consistent with
CAA requirements. Following this
reasoning, the EPA would not have
authority, through rulemaking on a
state’s SIP submission or otherwise, to
approve an affirmative defense
provision applicable in a judicial
enforcement action, because to do so
would be inconsistent with the statutory
allocation of jurisdiction to the federal
courts. In other words, just as the EPA’s
authority to promulgate regulations to
implement the CAA does not
encompass the authority to overwrite
statutory provisions, the EPA likewise
lacks authority to issue guidance to
states concerning SIP provisions in the
SSM Policy, or to approve a SIP
submission that contains such SIP
provisions, in a way that would likewise
overwrite statutory provisions where
Congress has spoken directly.
Fourth, the NRDC v. EPA court
weighed the EPA’s argument that CAA
section 304 does not ‘‘expressly deny’’
EPA authority to create affirmative
defenses and thus the EPA is not
precluded from doing so.31 Because the
statute is silent with respect to whether
or not such provisions are permissible,
the EPA inferred that the EPA had
authority to create them as a component
of the Portland cement NESHAP. In the
February 2013 proposal notice, the EPA
used a comparable argument that
sections 110(a), 113(b) and 113(e) of the
CAA do not expressly forbid affirmative
defense provisions in SIPs, both to
support its position that states could
30 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C.
Cir. 2014).
31 Id.
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55933
elect to have affirmative defense
provisions for malfunctions in SIPs and
in support of its proposed denial of the
Petition on this point.32 In response to
this particular argument, the NRDC v.
EPA court rejected the suggestion that a
court should ‘‘presume a delegation of
power absent an express withholding of
such power’’ as inconsistent with the
principles of statutory interpretation
under Chevron. The court thus
expressly rejected the argument that
affirmative defense provisions are
consistent with the CAA by virtue of the
fact that Congress has not explicitly
forbidden them, especially in the face of
conflicting provisions such as those in
sections 113(b) and 304(a) giving
jurisdiction to federal courts to assess
penalties for violations of CAA
requirements. The EPA now believes
that this same reasoning applies to
affirmative defense provisions in SIPs.
Finally, the NRDC v. EPA court
evaluated the EPA’s argument that
affirmative defense provisions are
‘‘necessary to account for the tension
between requirements that emission
limitations be ‘continuous’ and the
practical reality that control technology
can fail unavoidably.’’ 33 This tension is
an important point that the EPA has
long noted as a basis for its
interpretation of the CAA to allow
affirmative defense provisions, not only
in its own regulations such as the
Portland cement NESHAP, but also in
the SSM Policy providing guidance to
states for SIP provisions. In the February
2013 proposal notice, the EPA used this
same argument and the same case law
support to justify its position that states
could elect to have affirmative defense
provisions for malfunctions in SIPs and
for its proposed denial of the Petition on
this point.34 The NRDC v. EPA court
agreed that this would be a ‘‘good
argument’’ for a source to make in an
enforcement proceeding but made clear
that this ‘‘tension’’ does not give the
EPA legal authority to create an
affirmative defense.35 The court thus
32 See February 2013 proposal notice, 78 FR
12459 at 12470 (middle column); 12470 (right
column); 12472 (right column).
33 See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C.
Cir. 2014).
34 See February 2013 proposal notice, 78 FR
12459 at 12470 (left column); 12472 (right column);
12487 (left column).
35 The EPA interprets the court’s opinion to mean
that a defendant in an enforcement proceeding
might want to make this argument as part of its
efforts to seek lower penalties, consistent with the
factors listed in CAA section 113(e). The court’s
reference to the EPA’s making such an argument
relates back to the court’s earlier suggestion that the
EPA could seek to participate as an intervenor or
an amicus in a citizen suit enforcement matter if it
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summarily rejected the EPA’s argument
that the need to ‘‘balance’’ the objectives
of the CAA and to resolve the ‘‘tension’’
in the CAA authorizes creation of
affirmative defenses that purport to alter
or eliminate the jurisdiction of the
courts to assess monetary penalties or
other forms of relief. Given the result in
the NRDC v. EPA decision, the EPA
believes that this argument can no
longer be a basis for the EPA’s approval
of affirmative defense provisions in SIPs
that would apply in judicial
enforcement actions. The net result
would be that sources can continue to
make this practical argument in the
context of judicial enforcement
proceedings and that this consideration
would remain relevant in that forum,
but without intercession by states or the
EPA concerning whether the source
should be liable for penalties in any
specific circumstance through an
affirmative defense provision in the SIP.
In accordance with CAA section 113(e),
sources retain the ability to seek lower
monetary penalties through the
statutory factors provided for
consideration in administrative or
judicial enforcement proceedings. In
this context, for example, a violating
source could argue that factors such as
good-faith efforts to comply should
reduce or eliminate otherwise
applicable monetary penalties in a
particular situation.
In light of the court’s decision in
NRDC v. EPA, the EPA believes it
necessary to revise its SSM Policy and
its February 2013 proposed response to
the Petition with respect to the issues
related to affirmative defense provisions
in SIPs. Given the court’s reasoning that
sections 113 and 304 preclude the EPA
from having authority to create an
affirmative defense applicable in private
civil suits in federal regulations because
such a provision would impinge upon
jurisdiction explicitly provided by
Congress to the courts, the EPA believes
that its past guidance to states in the
SSM Policy is flawed. If the EPA has no
authority to create affirmative defenses
because it cannot alter the jurisdiction
of the courts to assess penalties in
enforcement proceedings for violations
of CAA requirements, then it follows
that states likewise cannot alter the
jurisdiction of the federal courts in SIP
provisions and the EPA cannot approve
any SIP provision that purports to do so.
The EPA emphasizes that the same logic
applies to any SIP provision that
purports to eliminate, restrict or
otherwise alter the jurisdiction of
federal courts to impose any of the
wants to take a position on what monetary penalties
are ‘‘appropriate’’ for a given violation.
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expressly listed forms of relief in section
113(b), not merely those applicable to
monetary penalties.36 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.
For the foregoing reasons, in this
SNPR the EPA is proposing to grant the
Petition with respect to the Petitioner’s
request that the EPA rescind its SSM
Policy element interpreting the CAA to
allow affirmative defense provisions in
SIPs for excess emissions during SSM
events. Unlike the EPA’s view at the
time of the February 2013 proposal
notice, the EPA now sees no valid basis
for interpreting the CAA to permit
affirmative defense provisions in SIPs
for violations due to excess emissions
during any type of event, whether that
event is a malfunction totally beyond
the control of the source or a planned
event within the control of the sources
such as a startup or shutdown.
V. Revised SSM Policy on Affirmative
Defense Provisions in SIPs
In the February 2013 proposal notice,
the EPA evaluated the issues raised by
the Petitioner concerning the treatment
of excess emissions during SSM events
in SIP provisions. As part of responding
to the Petition, the EPA proposed to
clarify, reiterate and revise its
longstanding SSM Policy. In this SNPR,
the EPA is now proposing to revise
further its interpretation of the CAA
with respect to affirmative defense
provisions applicable to excess
emissions during SSM events.
Based upon a reevaluation of the CAA
with respect to SIP provisions, and
upon careful consideration of the
implications of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
36 The EPA notes that CAA section 113(b)
expressly gives federal courts jurisdiction ‘‘to
restrain such violation, to require compliance, to
assess such civil penalty, to collect any fees owed
the United States under this chapter (other than
subchapter II of this chapter) and any
noncompliance assessment and nonpayment
penalty owed under section 7420 of this title, and
to award any other appropriate relief.’’ Similarly,
CAA section 304 expressly provides that in the
context of a citizen suit enforcement case, federal
courts have jurisdiction ‘‘to enforce such an
emission standard or limitation, or such an order
. . . and to apply any appropriate civil penalties.’’
In the latter section, the term ‘‘emission standard
or limitation’’ is defined broadly in section 304(f).
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reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
At this juncture, the EPA believes that
the reasoning of the U.S. Court of
Appeals for the District of Columbia
Circuit in NRDC v. EPA logically
extends to affirmative defense
provisions created by states in SIPs, as
well as to such provisions created by the
EPA in its own regulations. Given that
sections 113 and 304 functionally bar
any affirmative defense that purports to
alter or to eliminate the jurisdiction of
federal courts to assess penalties for
violations of CAA requirements or to
impose the other remedies listed in
section 113(b), this principle applies to
SIP provisions as well. Although the
NRDC v. EPA decision focused on the
jurisdiction of the federal courts to
assess civil penalties for violations of
EPA regulations promulgated under
section 112, because that was what was
specifically at issue in the case before it,
the EPA sees no reason why the same
logic would not apply to any SIP
provision that purported to alter or
eliminate the jurisdiction of the federal
courts to exercise their authority in the
event of violations as provided in CAA
section 113(b), including the authority
to restrain violations, to require
compliance, to assess civil penalties, to
collect any fees and to award any other
appropriate relief. In other words,
affirmative defense provisions in SIPs
that purport to alter or eliminate the
broad authority of federal courts to
award any of these types of relief in the
event of an enforcement action, whether
pursuant to section 113 or section 304,
are likewise contrary to the enforcement
structure of the CAA. Accordingly, the
EPA proposes to revise its SSM Policy
to interpret the CAA to preclude
affirmative defense provisions in SIPs.
When finalized, this rulemaking will
embody the EPA’s revised SSM Policy,
and it will provide the most up-to-date
and comprehensive EPA guidance on
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the subject of the proper treatment of
excess emissions from sources during
SSM events in SIP provisions.
VI. Legal Authority, Process and
Timing for SIP Calls
In section VIII of the February 2013
proposal notice, the EPA explained in
detail its statutory authority under CAA
section 110(k)(5) to issue a SIP call to
states to address SIP deficiencies, the
process for making such a SIP call and
the timing for such a SIP call. In this
SNPR, the EPA is not revising its
interpretations of the CAA with respect
to those issues and thus is not seeking
comment on these topics. The EPA is
revising one aspect of the February 2013
proposal notice with respect to the basis
for the proposed SIP calls for affirmative
defense provisions. In the February
2013 proposal notice, the EPA
explained its basis for concluding that
different types of deficient SIP
provisions identified in the Petition are
substantially inadequate to comply with
requirements of the CAA and thus
warrant a SIP call for a state to revise
or to eliminate the impermissible
provision. With respect to affirmative
defense provisions, the EPA articulated
its evaluation of why inadequate
affirmative defense provisions
applicable to malfunction events, or any
affirmative defense provisions
applicable to planned events like
startup and shutdown, would be
inconsistent with fundamental legal
requirements of CAA sections 110(a)
and 302(k) and the enforcement
structure provided in CAA sections 113
and 304.37 The rationale provided by
the EPA in the February 2013 proposal
notice was obviously based upon the
Agency’s interpretation of the relevant
requirements of the CAA at the time of
that proposal.
In light of the decision of the U.S.
Court of Appeals for the District of
Columbia Circuit in NRDC v. EPA,
however, the EPA has reevaluated
whether any form of affirmative defense
provision is consistent with CAA
requirements for SIP provisions. The
court concluded that the EPA has no
authority to alter the rights of litigants
to seek monetary penalties for violations
of CAA requirements and no authority
to alter the broad jurisdiction of federal
courts to assess such penalties for such
violations under CAA sections 113 and
304. The EPA believes that the logic of
the court’s decision extends to the
jurisdiction of the federal courts to
impose other remedies expressly
provided for in sections 113 and 304 as
well. These sections of the CAA are thus
among the fundamental requirements
with which SIPs must comply in order
to be consistent with the enforcement
structure created by Congress in the
CAA.
The EPA notes that the NRDC v. EPA
court did not condition its decision on
considerations such as whether the use
of the affirmative defense provision in
the Portland cement NESHAP would
have a demonstrated causal connection
to a given environmental impact (or
undermine a specific enforcement
action); the court decided the question
based solely on the fundamental legal
requirements of the CAA, which apply
equally to SIPs. The court viewed the
statutory requirements for enforcement
of violations as a legal bar to the EPA’s
creating an affirmative defense. The
EPA believes that this decision supports
the EPA’s view that an affirmative
defense provision in a SIP that would
operate to interfere with the rights of
litigants to seek penalties for violations
of the SIP or other statutory forms of
relief, or to interfere with the
jurisdiction of courts to assess penalties
or other relief for such violations, is a
substantial inadequacy because such
provision would violate fundamental
legal requirements of the CAA. This
potential for interference with the
intended enforcement structure of the
CAA is sufficient to establish that such
an affirmative defense provision is
substantially inadequate to meet CAA
requirements, and there is no need to
demonstrate that the use of the
affirmative defense would be causally
connected to any particular impact (e.g.,
a specific violation of a NAAQS at a
particular monitor on a particular day,
or the undermining of effective
enforcement for a particular violation by
a particular source). By specifying that
parties have the right to seek relief for
violations and that courts have
jurisdiction to impose relief for such
violations, the EPA believes, Congress
has already made the determination that
SIP provisions have to be consistent
with the requirements of CAA sections
113 and 304 without regard to impact
on other CAA requirements such as
demonstrating attainment. Accordingly,
the EPA has the authority and the
responsibility to assure that SIP
provisions meet the requirements of
CAA sections 113 and 304 and do not
undermine the enforcement structure
for SIPs that was created in the CAA.
37 See February 2013 proposal notice, FR 12459
at 12487–88.
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VII. What is the EPA proposing through
this SNPR for each of the specific
affirmative defense provisions
identified in the Petition or identified
independently by the EPA?
A. Overview of the EPA’s Evaluation of
Specific Affirmative Defense SIP
Provisions
In addition to its overarching request
that the EPA revise its interpretation of
the CAA in the SSM Policy with respect
to any form of affirmative defense
provisions in SIPs, the Petitioner
identified specific existing affirmative
defense provisions that the Petitioner
contended are not consistent with the
EPA’s own interpretation of the CAA as
expressed in the 1999 SSM Guidance. In
general, the provisions identified by the
Petitioner are structured as affirmative
defense provisions, regardless of
whether they use the term ‘‘affirmative
defense’’ and regardless of whether the
EPA ever specifically evaluated the
provisions with respect to the
recommendations for such provisions in
the 1999 SSM Guidance. While not
agreeing with the EPA’s guidance for
affirmative defense provisions, the
Petitioner expressed concern that all of
the identified provisions fail to address
some or all of the criteria for affirmative
defense provisions that the EPA
recommended in the 1999 SSM
Guidance.
In the February 2013 proposal notice,
the EPA explained that it was reviewing
each identified affirmative defense
provision on the merits. At that time,
the EPA was operating under the belief
that its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs was correct. Accordingly, the
EPA evaluated each of the provisions for
consistency with the EPA’s
interpretation of the CAA as set forth in
the 1999 SSM Guidance and as it was
revising its interpretation in the
February 2013 proposal notice. The
February 2013 proposal notice thus
contained the EPA’s proposal to grant or
to deny the Petition based on the EPA’s
evaluation as to whether the provision
at issue provides adequate criteria to
provide only a narrow affirmative
defense for violations due to
malfunctions for sources under certain
circumstances consistent with the
overarching CAA objectives, such as
attaining and maintaining the NAAQS.
In addition, the EPA proposed to grant
the Petition with respect to any
identified provision that creates an
affirmative defense applicable during
planned startup and shutdown events,
because such provisions are not
consistent with the requirements of the
CAA.
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Now, however, the EPA is
reevaluating each of the specific
affirmative defense provisions identified
by the Petitioner for consistency with
the CAA in light of the court’s decision
in NRDC v. EPA. As explained in
section III.C of this SNPR, the EPA is
revising its interpretation of the CAA
concerning the legal basis for affirmative
defense provisions. Given that the
reasoning of the court applies equally to
SIP provisions, the EPA is proposing to
grant the Petition with respect to each
of these provisions. Thus, the EPA is
proposing to find that these provisions
are substantially inadequate because
they are not consistent with
fundamental legal requirements of the
CAA and the EPA is proposing to issue
a SIP call to each affected state for these
specific provisions.
In addition to provisions identified by
the Petitioner, the EPA is independently
identifying other specific existing
problematic affirmative defense
provisions in SIPs. As a result, the EPA
is newly including one or more
affirmative defense provisions in the
SIPs of the following four states: (1)
New Mexico (Albuquerque-Bernalillo
County); (2) Texas; (3) California
(Eastern Kern Air Pollution Control
District, Imperial County Air Pollution
Control District and San Joaquin Valley
Air Pollution Control District); and (4)
Washington (Energy Facility Site
Evaluation Council and Southwest
Clean Air Agency). The EPA is
including these additional affirmative
defense provisions in this SNPR in
order to provide comprehensive
guidance to all states concerning such
provisions in SIPs and to avoid
confusion that may arise due to recent
Agency administrative actions, litigation
and resulting court decisions relevant to
such provisions under the CAA. In
particular, the EPA is concerned that its
explicit approval of affirmative defense
provisions in the SIPs of other states as
being consistent with the requirements
of the CAA as reflected in the 1999 SSM
Guidance warrants affirmative action by
the Agency to ask those states to revise
their SIPs. Accordingly, the EPA is
proposing to make a finding of
substantial inadequacy for these
additional affirmative defense
provisions because they are not
consistent with fundamental legal
requirements of the CAA and the EPA
is proposing to issue a SIP call with
respect to each affected state for these
specific provisions as well.
B. Affected States in EPA Region III
1. District of Columbia
a. Petitioner’s Analysis
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.38
Among the other alleged SIP
deficiencies, 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
§ 606.4). The Petitioner objected to this
provision because the elements of the
defense are not laid out clearly in the
SIP, because the term ‘‘affirmative
defense’’ is not defined in the SIP, and
finally, the Petitioner argues, because
affirmative defense provisions for any
excess emissions are wholly
inconsistent with the CAA and should
be removed from the SIP. The
Petitioner’s overarching claim was that
CAA section 113 is a bar to affirmative
defense provisions because EPA does
not have authority to alter the
jurisdiction of the courts to assess
penalties or the factors that Congress
directed the courts to consider.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to D.C. Mun. Regs. tit. 20
§ 606.4 because it is not a permissible
affirmative defense provision consistent
with the requirements of the CAA and
the EPA’s recommendations in the
EPA’s SSM Policy. The EPA previously
stated its belief that, by purporting to
create a bar to enforcement that applies
not only to monetary penalties but also
to injunctive relief, this provision is
inconsistent with the requirements of
CAA sections 113 and 304. By not
including sufficient criteria to assure
that sources seeking to raise the
affirmative defense have in fact been
properly designed, maintained and
operated, and to assure that sources
have taken all appropriate steps to
minimize excess emissions, the
provision also fails to be sufficiently
narrowly drawn to justify shielding
from monetary penalties for violations.
Thus, the EPA previously reasoned that
this provision is not appropriate as an
affirmative defense provision because it
is inconsistent with fundamental
requirements of the CAA.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
38 Petition
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at 29–30.
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substantial inadequacy and the SIP call
for D.C. Mun. Regs. tit. 20 § 606.4. The
EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether the provision met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304. The EPA
interprets the provision of D.C. Mun.
Regs. tit. 20 § 606.4 to create an
impermissible affirmative defense for
violations of visible emission
limitations during ‘‘unavoidable
malfunction’’ events. The provision
operates to limit the jurisdiction of the
federal court in an enforcement action
and to preclude both liability and any
form of judicial relief contemplated in
CAA sections 113 and 304. Thus, the
EPA believes that this provision
interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For this reason, the EPA is proposing
to find D.C. Mun. Regs. tit. 20 § 606.4
substantially inadequate to meet CAA
requirements and the EPA is thus
proposing to issue a SIP call with
respect to this provision. The EPA notes
that in this SNPR it is only addressing
this provision with respect to its
deficiency as an affirmative defense
provision and is not revising its
February 2013 proposal with respect to
the proposed action on the other four
provisions in the DC SIP that are at
issue in the Petition.
2. Virginia
a. Petitioner’s Analysis
The Petitioner objected to a generally
applicable provision in the Virginia SIP
that allows for discretionary exemptions
during periods of malfunction (9 Va.
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Admin. Code § 5–20–180(G)).39 The
Petitioner objected to this provision on
multiple grounds, including: (i) That it
provides an exemption from the
otherwise applicable SIP emission
limitations; (ii) that it provides a
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’’; and (iii) that if intended as an
affirmative defense provision it fails to
meet EPA’s interpretation of the CAA
with respect to such provisions for
several reasons.
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b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to 9 Va. Admin. Code § 5–
20–180(G). The EPA explained that the
provision at issue is deficient for several
reasons, including the fact that it is not
sufficient as an affirmative defense
provision to meet CAA requirements.
With respect to the deficiency of the
provision as an affirmative defense, the
EPA noted that even if it were to
consider 9 Va. Admin. Code § 5–20–
180(G) as providing for an affirmative
defense rather than an automatic or
discretionary exemption, the provision
is not a permissible affirmative defense
provision consistent with the
requirements of the CAA as interpreted
in the EPA’s recommendations in the
EPA’s SSM Policy. The EPA previously
stated its belief that, by purporting to
create a bar to enforcement that applies
not only to monetary penalties but also
to injunctive relief, this provision is
inconsistent with the requirements of
CAA sections 113 and 304. The EPA
also argued that by not including
sufficient criteria to assure that sources
seeking to raise the affirmative defense
have in fact been properly designed,
maintained and operated, and to assure
that sources have taken all appropriate
steps to minimize excess emissions, the
provision fails to be sufficiently
narrowly drawn to justify shielding
from monetary penalties for violations.
Thus, the EPA previously proposed to
find that this provision is not
appropriate as an affirmative defense
provision because it is inconsistent with
fundamental requirements of the CAA.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for 9 Va. Admin. Code § 5–20–180(G).
The EPA is proposing to revise its
interpretation of the CAA with respect
39 Petition
at 70–71.
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to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304. The EPA
interprets the provision of 9 Va. Admin.
Code § 5–20–180(G) to create an
impermissible affirmative defense for
violations of SIP emission limits. The
provision would operate to limit the
jurisdiction of the federal court in an
enforcement action and to preclude both
liability and any form of judicial relief
contemplated in CAA sections 113 and
304. Thus, the EPA believes that this
provision interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find 9 Va. Admin. Code
§ 5–20–180(G) substantially inadequate
to meet CAA requirements and the EPA
is thus proposing to issue a SIP call with
respect to this provision. The EPA notes
that in this SNPR it is only addressing
this provision with respect to its
deficiency as an affirmative defense
provision and is not revising its
February 2013 proposal notice with
respect to the other separate bases for
the finding of substantial inadequacy of
this provision.
3. West Virginia
a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified one affirmative defense
provision in the SIP for the state of West
Virginia in W.Va. Code Section 45–2–
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Frm 00019
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Sfmt 4702
55937
9.4. This provision provides an
affirmative defense available to sources
for excess emissions that occur during
malfunctions. The EPA notes that it has
already proposed to make a finding of
substantial inadequacy and to issue a
SIP call for another related provision in
W.Va. Code Section 45–2–9.1 for
separate reasons not relevant here and
the EPA is not reopening its February
2013 proposal notice with respect to the
latter SIP provision.
In light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. The affirmative defense in
W.Va. Code Section 45–2–9.4 provides
that if a source establishes certain
factual criteria ‘‘to the satisfaction of’’ a
state official, then the occurrence of a
malfunction is an ‘‘affirmative defense.’’
The EPA notes that the affirmative
defense for malfunctions in W.Va. Code
Section 45–2–9.4 was not consistent
with the EPA’s prior interpretation of
the CAA and with its recommendations
for such provisions in the 1999 SSM
Guidance. Regardless of that fact, the
EPA believes that this provision
impermissibly purports to alter or
eliminate the jurisdiction of federal
courts to assess penalties or to impose
other forms of relief for violations of SIP
emission limits. Under this provision, if
the source is able to establish that it met
each of the specified criteria to the
satisfaction of the state official, then the
provision purports to bar any relief for
those violations. Accordingly, the EPA
believes that this affirmative defense
provision is inconsistent with the
fundamental enforcement structure of
the CAA and the EPA thus believes that
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C. Affected States in EPA Region IV
b. The EPA’s Proposal
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the provision is not consistent with
CAA requirements for SIP provisions.
a. Petitioner’s Analysis
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
the affirmative defense provision
applicable to excess emissions that
occur during malfunctions in W.Va.
Code Section 45–2–9.4. The EPA is
proposing to revise its interpretation of
the CAA with respect to affirmative
defense provisions in SIPs. Previously
the EPA assessed whether such
provisions met certain requirements,
such as being limited to monetary
penalties rather than injunctive relief
and containing sufficiently robust
criteria to assure that the defense
applied only in appropriately narrow
circumstances. Now, the Agency must
evaluate such provisions to determine
whether they are constructed in a way
that would purport to preclude federal
court jurisdiction under section 113 to
assess civil penalties or other forms of
relief for violations of SIP emission
limits, to prevent courts from
considering the statutory factors for the
assessment of civil penalties under
section 113 or to interfere with the
rights of litigants to pursue enforcement
consistent with their rights under the
citizen suit provision of section 304.
The EPA interprets W.Va. Code
Section 45–2–9.4 to provide an
affirmative defense that operates to limit
the jurisdiction of the federal court in an
enforcement action and to limit the
authority of the court to impose
monetary penalties or to impose other
forms of relief as contemplated in CAA
sections 113 and 304. Thus, the EPA
believes that this provision interferes
with the intended enforcement structure
of the CAA, through which parties may
seek to bring enforcement actions for
violations of SIP emission limits and
courts may exercise their jurisdiction to
determine what, if any, relief is
appropriate.
For these reasons, the EPA is
proposing to find W.Va. Code Section
45–2–9.4 substantially inadequate to
meet CAA requirements and thus the
EPA is proposing to issue a SIP call with
respect to this provision. The EPA notes
that in this SNPR it is only addressing
this provision with respect to its
deficiency as an affirmative defense
provision and is not revising its
February 2013 proposal with respect to
the proposed action on the other
provisions in the West Virginia SIP that
are at issue in the Petition.
The Petitioner objected to a provision
in the Georgia SIP that provides for
exemptions for excess emissions during
startup, shutdown or malfunctions
under certain circumstances (Ga. Comp.
R. & Regs. 391–3–1–.02(2)(a)(7)).40 The
Petitioner objected to this provision on
multiple grounds, including: (i) That it
provides an exemption from the
otherwise applicable SIP emission
limitations by providing that the excess
emissions ‘‘shall be allowed’’ subject to
certain conditions; (ii) that although the
provision provides some ‘‘substantive
criteria,’’ the provision does not meet
the criteria the EPA recommends for an
affirmative defense provision consistent
with the requirements of the CAA in the
EPA’s 1999 SSM Guidance; and (iii) 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.’’
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1. Georgia
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to Ga. Comp. R. & Regs.
391–3–1–.02(2)(a)(7). The EPA
explained that the provision at issue is
deficient for several reasons, including
the fact that it is not sufficient as an
affirmative defense provision to meet
CAA requirements. With respect to the
deficiency of the provision as an
affirmative defense, the EPA noted that
Ga. Comp. R. & Regs. 391–3–1–
.02(2)(a)(7) is not a permissible
affirmative defense provision consistent
with the requirements of the CAA as
interpreted in the EPA’s
recommendations in the EPA’s SSM
Policy. By purporting to create a bar to
enforcement that applies not only to
monetary penalties but also to
injunctive relief, the EPA reasoned that
this provision is inconsistent with the
requirements of CAA sections 113 and
304. The EPA also argued that by not
including sufficient criteria to assure
that sources seeking to raise the
affirmative defense have in fact been
properly designed, maintained and
operated, and to assure that sources
have taken all appropriate steps to
minimize excess emissions, the
provision also fails to be sufficiently
narrowly drawn to justify shielding
40 Petition
PO 00000
at 32.
Frm 00020
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from monetary penalties for violations.
Moreover, the EPA previously reasoned
that Ga. Comp. R. & Regs. 391–3–1–
.02(2)(a)(7) was deficient because it
applies not only to malfunctions but
also to startup and shutdown events,
contrary to the EPA’s interpretation of
the CAA set forth in the February 2013
proposal notice. Thus, the EPA
previously proposed to find that Ga.
Comp. R. & Regs. 391–3–1–.02(2)(a)(7) is
not appropriate as an affirmative
defense provision because it is
inconsistent with fundamental
requirements of the CAA.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for Ga. Comp. R. & Regs. 391–3–1–
.02(2)(a)(7). The EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304. The EPA
interprets the provision of Ga. Comp. R.
& Regs. 391–3–1–.02(2)(a)(7) to create an
impermissible affirmative defense for
violations of SIP emission limits. The
provision operates to limit the
jurisdiction of the federal court in an
enforcement action and to preclude both
liability and any form of judicial relief
contemplated in CAA sections 113 and
304. Thus, the EPA believes that this
provision interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find Ga. Comp. R. & Regs.
391–3–1–.02(2)(a)(7) substantially
inadequate to meet CAA requirements
and the EPA is thus proposing to issue
a SIP call with respect to this provision.
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The EPA notes that in this SNPR it is
only addressing this provision with
respect to its deficiency as an
affirmative defense provision and is not
revising its February 2013 proposal with
respect to the other separate bases for
the finding of substantial inadequacy of
this provision.
2. Mississippi
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a. Petitioner’s Analysis
The Petitioner objected to three
provisions in the Mississippi SIP as
being inconsistent with the CAA and
the EPA’s SSM Policy.41 Among the
other alleged SIP deficiencies, 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. § 10.1) and unavoidable
maintenance (11–1–2 Miss. Code R.
§ 10.3).42 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.’’
Specifically, the Petitioner argued that
the EPA’s guidance for affirmative
defenses recommends that they ‘‘are not
appropriate where a single source or a
small group of sources has the potential
to cause an exceedance of the NAAQS
or PSD increments,’’ 43 and
Mississippi’s provisions do not contain
a restriction to address this point.
Further, the Petitioner argued that the
affirmative defenses in Mississippi’s SIP
are not limited to actions seeking civil
penalties and that they fail to meet other
criteria ‘‘that EPA requires for
acceptable defense provisions.’’ 44
Finally, the Petitioner argued that the
CAA and the EPA’s SSM Policy
interpreting it do not allow affirmative
defenses for excess emissions during
maintenance events under any
circumstances.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to 11–1–2 Miss. Code R.
§ 10.1 and 11–1–2 Miss. Code R. § 10.3
because they are deficient affirmative
defense provisions. By purporting to
create a bar to enforcement that applies
not only to monetary penalties but also
41 Petition
at 29–30.
at 47–49.
43 Petition at 48.
44 Petition at 47–48.
42 Petition
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to injunctive relief, the EPA reasoned
that these provisions are inconsistent
with the requirements of CAA sections
113 and 304. The EPA also argued that
by not including sufficient criteria to
assure that sources seeking to raise these
affirmative defenses have in fact been
properly designed, maintained and
operated, and to assure that sources
have taken all appropriate steps to
minimize excess emissions, the
provision also fails to be sufficiently
narrowly drawn to justify shielding
from monetary penalties for violations
during malfunctions. With respect to the
comparable affirmative defense for
maintenance in 11–1–2 Miss. Code R.
§ 10.3, the EPA reiterated its long held
position that no affirmative defense is
appropriate for violations that occur
during maintenance because
maintenance is a normal mode of source
operation during which the source
should be expected to comply with the
applicable emission limitations. Thus,
the EPA previously proposed to find
that 11–1–2 Miss. Code R. § 10.1 and
11–1–2 Miss. Code R. § 10.3 are not
appropriate as affirmative defense
provisions because they are inconsistent
with fundamental requirements of the
CAA.
jurisdiction of the federal court in an
enforcement action and to preclude both
liability and any form of judicial relief
contemplated in CAA sections 113 and
304. Thus, the EPA believes that these
provisions interfere with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find 11–1–2 Miss. Code R.
§ 10.1 and 11–1–2 Miss. Code R. § 10.3
provisions substantially inadequate to
meet CAA requirements and the EPA is
thus proposing to issue a SIP call with
respect to these provisions. The EPA
notes that in this SNPR it is only
addressing 11–1–2 Miss. Code R. § 10.1
and 11–1–2 Miss. Code R. § 10.3 with
respect to the deficiency as affirmative
defense provisions and is not revising
its February 2013 proposal with respect
to another SIP provision, 11–1–2 Miss.
Code R. § 10.2, for which the EPA has
proposed to make a finding of
substantial inadequacy and to issue a
SIP call on different grounds.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for 11–1–2 Miss. Code R. § 10.1 and 11–
1–2 Miss. Code R. § 10.3. The EPA is
proposing to revise its interpretation of
the CAA with respect to affirmative
defense provisions in SIPs. Previously
the EPA assessed whether the provision
met certain requirements, such as being
limited to monetary penalties rather
than injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304. The EPA
interprets the provisions of 11–1–2
Miss. Code R. § 10.1 and 11–1–2 Miss.
Code R. § 10.3 to create an
impermissible affirmative defenses for
violations of SIP emission limits. These
provisions operate to limit the
a. The EPA’s Evaluation
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3. South Carolina
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified one affirmative defense
provision in the SIP for the state of
South Carolina in S.C. Code Ann. Regs.
62.1, Section II(G)(6). This provision
provides that permits for certain sources
may contain an affirmative defense for
excess emissions that occur during
emergencies. The permits at issue
embody federally enforceable emission
limits that assure the sources will
remain below the threshold for major
stationary sources subject to the
permitting requirements of title V of the
CAA. By accepting these emission limits
in permits as authorized by this
provision of the state’s SIP, these
sources are treated as minor sources
rather than major sources for regulatory
purposes.
In light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
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EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. The affirmative defense in S.C.
Code Ann. Regs. 62.1, Section II(G)(6)
provides that if a source meets certain
factual criteria, then the occurrence of
an emergency is an ‘‘affirmative
defense’’ for any technology-based
emission limitation violations that occur
during the emergency. The affirmative
defense is not limited to monetary
penalties and appears to bar any form of
relief if the source meets the criteria for
the defense. The EPA notes that the
affirmative defense for emergencies in
S.C. Code Ann. Regs. 62.1, Section
II(G)(6) was not consistent with the
EPA’s prior interpretation of the CAA
and with its recommendations for such
provisions in the 1999 SSM Guidance.
Regardless of that fact, the EPA believes
that this provision impermissibly
purports to alter or eliminate the
jurisdiction of federal courts to assess
penalties or to impose other forms of
relief for violations of federally
enforceable SIP or permit emission
limits. Under this provision, if the
source is able to establish that it met
each of the specified criteria, then the
provision purports to bar any relief for
those violations. Accordingly, the EPA
believes that this affirmative defense
provision is inconsistent with the
fundamental enforcement structure of
the CAA and the EPA thus believes that
the provision is not consistent with
CAA requirements for SIP provisions.
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets S.C. Code Ann.
Regs. 62.1, Section II(G)(6) to provide an
affirmative defense that operates to limit
the jurisdiction of the federal court in an
enforcement action and to limit the
authority of the court to impose
monetary penalties or to impose other
forms of relief as contemplated in CAA
sections 113 and 304. Thus, the EPA
believes that this provision interferes
with the intended enforcement structure
of the CAA, through which parties may
seek to bring enforcement actions for
violations of SIP emission limits and
courts may exercise their jurisdiction to
determine what, if any, relief is
appropriate.
For these reasons, the EPA is
proposing to find S.C. Code Ann. Regs.
62.1, Section II(G)(6) substantially
inadequate to meet CAA requirements
and the EPA is thus proposing to issue
a SIP call with respect to this provision.
The EPA notes that in this SNPR it is
only addressing this provision with
respect to its deficiency as an
affirmative defense provision and is not
revising its February 2013 proposal with
respect to the proposed action on the
other provisions in the South Carolina
SIP that are at issue in the Petition.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
the affirmative defense provisions
applicable to excess emissions that
occur during emergencies in S.C. Code
Ann. Regs. 62.1, Section II(G)(6). The
EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
a. Petitioner’s Analysis
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D. Affected States in EPA Region V
1. Illinois
The Petitioner objected to three
generally applicable provisions in the
Illinois SIP (Ill. Admin. Code tit. 35
§ 201.261, Ill. Admin. Code tit. 35
§ 201.262 and Ill. Admin. Code tit. 35
§ 201.265) which the Petitioner argued
have the effect of providing
discretionary exemptions from
otherwise applicable SIP emission
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limitations.45 The Petitioner objected to
these provisions on multiple grounds,
including: (i) that the provisions invite
sources to request, during the permitting
process, advance permission to continue
to operate during a malfunction or
breakdown and to request advance
permission to ‘‘violate’’ otherwise
applicable emission limitations during
startup; (ii) that the provisions state
that, once granted, the advance
permission to violate the emission
limitations ‘‘shall be a prima facie
defense to an enforcement action’’; and
(iii) that the term ‘ ‘‘prima facie defense’
is ambiguous in its operation.’’ The
Petitioner argued that the latter
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.’’ The Petitioner asserted that ‘‘if
. . . the ‘prima facie defense’ is
anything short of the ‘affirmative
defense,’ ’’ as contemplated in the 1999
SSM Guidance, then ‘‘it clearly has the
potential to interfere with EPA and
citizen enforcement.’’
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to Ill. Admin. Code tit. 35
§ 201.261, Ill. Admin. Code tit. 35
§ 201.262 and Ill. Admin. Code tit. 35
§ 201.265. The EPA proposed to grant
the Petition for these provisions even
though the state has asserted that the
effect of these provisions together only
provides sources with a prima facie
defense in an enforcement proceeding.
Even if interpreted to provide an
affirmative defense rather than an
automatic or discretionary exemption,
however, the EPA previously noted that
the provisions do not provide a
permissible affirmative defense
provision consistent with the
requirements of the CAA as interpreted
in the EPA’s recommendations in the
EPA’s SSM Policy.
In the February 2013 proposal notice,
the EPA enumerated various ways in
which the provisions were not
consistent with the EPA’s
recommendations in the EPA’s SSM
Policy interpreting the CAA: (i) It is not
clear that the defense applies only to
monetary penalties, which is
inconsistent with the requirements of
CAA sections 113 and 304; (ii) the
defense applies to violations that
occurred during startup periods, which
45 Petition
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is inconsistent with CAA sections 113
and 304; (iii) the provisions shift the
burden of proof to the enforcing party;
and (iv) the provisions do not include
sufficient criteria to assure that sources
seeking to raise the affirmative defense
have in fact been properly designed,
maintained and operated, and to assure
that sources have taken all appropriate
steps to minimize excess emissions.
Accordingly, even if Ill. Admin. Code
tit. 35 § 201.261, Ill. Admin. Code tit. 35
§ 201.262 and Ill. Admin. Code tit. 35
§ 201.265 are together interpreted to
provide a prima facie defense to
enforcement rather than to provide
exemptions, the EPA already proposed
to find that these provisions are
substantially inadequate to meet CAA
requirements and thus proposed to issue
a SIP call with respect to these
provisions.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for Ill. Admin. Code tit. 35 § 201.261, Ill.
Admin. Code tit. 35 § 201.262 and Ill.
Admin. Code tit. 35 § 201.265. The EPA
is proposing to revise its interpretation
of the CAA with respect to affirmative
defense provisions in SIPs. Previously
the EPA assessed whether such
provisions met certain requirements,
such as being limited to monetary
penalties rather than injunctive relief
and containing sufficiently robust
criteria to assure that the defense
applied only in appropriately narrow
circumstances. Now, the Agency must
evaluate such provisions to determine
whether they are constructed in a way
that would purport to preclude federal
court jurisdiction under section 113 to
assess civil penalties or other forms of
relief for violations of SIP emission
limits, to prevent courts from
considering the statutory factors for the
assessment of civil penalties under
section 113 or to interfere with the
rights of litigants to pursue enforcement
consistent with their rights under the
citizen suit provision of section 304. To
the extent that Ill. Admin. Code tit. 35
§ 201.261, Ill. Admin. Code tit. 35
§ 201.262 and Ill. Admin. Code tit. 35
§ 201.265 together do provide only a
defense as characterized by the state
rather than an exemption, the EPA
believes that they create an
impermissible affirmative defense for
violations of SIP emission limits. These
provisions would operate together to
limit the jurisdiction of the federal court
in an enforcement action and to
preclude both liability and any form of
judicial relief contemplated in CAA
sections 113 and 304. Thus, the EPA
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believes that these provisions interfere
with the intended enforcement structure
of the CAA, through which parties may
seek to bring enforcement actions for
violations of SIP emission limits and
courts may exercise their jurisdiction to
determine what, if any, relief is
appropriate.
For these reasons, the EPA is
proposing to find Ill. Admin. Code tit.
35 § 201.261, Ill. Admin. Code tit. 35
§ 201.262 and Ill. Admin. Code tit. 35
§ 201.265 substantially inadequate to
meet CAA requirements and the EPA is
thus proposing to issue a SIP call with
respect to these provisions. The EPA
notes that in this SNPR it is only
addressing these provisions with respect
to their deficiency as an affirmative
defense and is not revising its February
2013 proposal notice with respect to the
other separate bases for the finding of
substantial inadequacy for these
provisions.
2. Indiana
a. Petitioner’s Analysis
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)).46 The Petitioner
objected to this provision on multiple
grounds, including: (i) That it provides
an exemption from the otherwise
applicable SIP emission limitations; (ii)
that it is ambiguous because it provides
that excess emissions during
malfunction periods ‘‘shall not be
considered a violation’’ if the source
demonstrates that a number of
conditions are met, but it does not
specify to whom or in what forum such
demonstration must be made; (iii) that
if the foregoing demonstration need
only be made to the satisfaction of the
state, then this 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; and (iv) that if the
demonstration is to be made in an
enforcement context, then the provision
could be interpreted as providing an
affirmative defense, but one that is
inconsistent with the requirements of
the CAA as interpreted in the EPA’s
SSM Policy.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to 326 Ind. Admin. Code 1–
6–4(a). The EPA noted at that time that
even if it were to interpret 326 Ind.
Admin. Code 1–6–4(a) to be an
46 Petition
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55941
affirmative defense applicable in an
enforcement context, then the provision
is not consistent with the EPA’s
recommendations for such affirmative
defenses in the EPA’s SSM Policy
interpreting the CAA. By purporting to
create a bar to enforcement that applies
not just to monetary penalties but also
to injunctive relief, and by including
criteria inconsistent with those
recommended by the EPA for
affirmative defense provisions, this
provision is inconsistent with the
requirements of CAA sections 113 and
304. For these reasons, the EPA
previously proposed to find that 326
Ind. Admin. Code 1–6–4(a) is
substantially inadequate to meet CAA
requirements and proposed to issue a
SIP call with respect to this provision.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for 326 Ind. Admin. Code 1–6–4(a). The
EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
To the extent that 326 Ind. Admin.
Code 1–6–4(a) provides only a defense
rather than an exemption, the EPA
believes that it creates an impermissible
affirmative defense for violations of SIP
emission limits. The provision would
operate to limit the jurisdiction of the
federal court in an enforcement action
and to preclude both liability and any
form of judicial relief contemplated in
CAA sections 113 and 304. Thus, the
EPA believes that this provision
interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
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their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find 326 Ind. Admin. Code
1–6–4(a) substantially inadequate to
meet CAA requirements and the EPA is
thus proposing to issue a SIP call with
respect to this provision. The EPA notes
that in this SNPR it is only addressing
this provision with respect to its
deficiency as an affirmative defense and
is not revising its February 2013
proposal notice with respect to the other
separate bases for the finding of
substantial inadequacy for the
provision.
3. Michigan
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a. Petitioner’s Analysis
The Petitioner objected to a generally
applicable provision in Michigan’s SIP
that provides for an affirmative defense
to monetary penalties for violations of
otherwise applicable SIP emission
limitations during periods of startup
and shutdown (Mich. Admin. Code r.
336.1916).47 The Petitioner objected to
this provision on multiple grounds,
including: (i) That one of the criteria in
the affirmative defense provision, Mich.
Admin. Code r. 336.1916, makes the
defense available to a single source or
small group of sources as long as such
source did not ‘‘cause[] an exceedance
of the national ambient air quality
standards or any applicable prevention
of significant deterioration increment’’
thereby applying to sources with the
‘‘potential’’ to cause violations of the
NAAQS contrary to the
recommendations of EPA’s 1999 SSM
Guidance; and (ii) that the affirmative
defense provision is available for
violations of ‘‘an applicable emission
limitation,’’ which Petitioner argued
could be construed by a court to include
‘‘limits derived from federally
promulgated technology based
standards, such as NSPSs and
NESHAPs,’’ contrary to EPA’s
interpretation of the CAA in the 1999
SSM Guidance to preclude SIP-based
affirmative defenses for violations of
these federal technology-based
standards.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to Mich. Admin. Code r.
336.1916, which provides for an
affirmative defense to violations of
applicable emission limitations during
startup and shutdown events. The EPA
noted at that time that an affirmative
defense for excess emissions that occur
during planned events such as startup
47 Petition
at 44–46.
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and shutdown was contrary to the EPA’s
then current interpretation of the CAA
to allow such affirmative defenses only
for events beyond the control of the
source, i.e., during malfunctions. In the
February 2013 proposal notice, the EPA
proposed to revise its SSM Policy to
reflect this interpretation of the CAA,
and to update the recommendations it
previously made concerning affirmative
defense provisions applicable to startup
and shutdown events in the 1999 SSM
Guidance. For this reason, the EPA
previously proposed to find that Mich.
Admin. Code r. 336.1916 is
substantially inadequate to meet CAA
requirements and proposed to issue a
SIP call with respect to this provision.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for Mich. Admin. Code r. 336.1916. The
EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets Mich. Admin.
Code r. 336.1916 to provide an
affirmative defense that operates to limit
the jurisdiction of the federal court in an
enforcement action and to preclude both
liability and any form of judicial relief
contemplated in CAA sections 113 and
304. The fact that this affirmative
defense applies during planned and
predictable events exacerbates this
problem, but even if the provision were
applicable only to genuine malfunction
events it is not a permissible SIP
provision. Thus, the EPA believes that
this provision interferes with the
intended enforcement structure of the
CAA, through which parties may seek to
bring enforcement actions for violations
of SIP emission limits and courts may
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Sfmt 4702
exercise their jurisdiction to determine
what, if any, relief is appropriate.
For these reasons, the EPA is
proposing to find Mich. Admin. Code r.
336.1916 substantially inadequate to
meet CAA requirements and the EPA is
thus proposing to issue a SIP call with
respect to this provision.
E. Affected States and Local
Jurisdictions in EPA Region VI
1. Arkansas
a. Petitioner’s Analysis
The Petitioner objected to two
provisions in the Arkansas SIP as
inconsistent with the CAA and the
EPA’s SSM Policy.48 One of these
provisions, Reg. 19.602, provides an
‘‘affirmative defense’’ applicable to
violations by sources in certain
circumstances. The Petitioner objected
to Reg. 19.602 because it provides a
‘‘complete affirmative defense’’ for
excess emissions that occur during
emergency conditions. 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.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to Reg. 19.602. The EPA
explained its view that Reg. 19.602 is an
impermissible affirmative defense
provision because it does not explicitly
limit the defense to monetary penalties,
it establishes criteria that are
inconsistent with those recommended
in the EPA’s SSM Policy, and it can be
read to create different or additional
defenses from those that are provided in
underlying federal technology-based
emission limitations. As a consequence,
the EPA reasoned that Reg. 19.602 is
inconsistent with the requirements for
SIP provisions in CAA sections
110(a)(2)(A), 110(a)(2)(C) and 302(k).
For these reasons, the EPA previously
proposed to find that Reg. 19.602 is
substantially inadequate to meet CAA
requirements and proposed to issue a
SIP call with respect to this provision.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
48 Petition at 24. The Petitioner cites to 014–01–
1 Ark. Code R. §§ 19.1004(H) and 19.602. The EPA
interprets these citations as references to Reg.
19.1004(H) and Reg. 19.602 of the Arkansas
Pollution Control & Ecology Commission
(APC&EC), Regulation No. 19—Regulations of the
Arkansas Plan of Implementation for Air Pollution
Control, as approved by the EPA on Apr. 12, 2007
(72 FR 18394). For ease of description, we refer
herein to Reg. 19.602.
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substantial inadequacy and the SIP call
for Reg. 19.602. The EPA is proposing
to revise its interpretation of the CAA
with respect to affirmative defense
provisions in SIPs. Previously the EPA
assessed whether such provisions met
certain requirements, such as being
limited to monetary penalties rather
than injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets Reg. 19.602 to
provide an affirmative defense that
operates to limit the jurisdiction of the
federal court in an enforcement action
and to preclude both liability and any
form of judicial relief contemplated in
CAA sections 113 and 304. Thus, the
EPA believes that this provision
interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find Reg. 19.602
substantially inadequate to meet CAA
requirements and the EPA is thus
proposing to issue a SIP call with
respect to this provision. The EPA notes
that in this SNPR it is only addressing
this provision with respect to its
deficiency as an affirmative defense
provision and is not revising its
February 2013 proposal with respect to
the proposed action on the other
provision in the Arkansas SIP that is at
issue in the Petition.
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2. New Mexico
a. Petitioner’s Analysis
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).49 The
49 Petition at 54–57. The EPA interprets the
Petitioner’s reference to N.M. Code R. § 20.2.7.111,
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Petitioner objected to the inclusion of
these provisions in the SIP based on its
view that affirmative defense provisions
are always inconsistent with CAA
requirements. The Petitioner also argued
that each of these affirmative defenses is
generally available to all sources, which
is in contravention of the EPA’s
recommendation in the SSM Policy that
affirmative defenses should not be
available to ‘‘a single source or groups
of sources that has the potential to cause
an exceedance of the NAAQS.’’ Finally,
the Petitioner argued that the affirmative
defense provision applicable to
emergency events is impermissible
because it was modeled after the EPA’s
title V regulations, which are not meant
to apply to SIP provisions.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to 20.2.7.112 NMAC,
which includes an affirmative defense
applicable during startup and shutdown
events that is contrary to the EPA’s
interpretation of the CAA. The EPA
noted at that time that an affirmative
defense for excess emissions that occur
during planned events such as startup
and shutdown was contrary to the EPA’s
current interpretation of the CAA to
allow such affirmative defenses only for
events beyond the control of the source,
i.e., during malfunctions. In the
February 2013 proposal notice, the EPA
proposed to revise its SSM Policy to
reflect this interpretation of the CAA,
and to update the recommendations it
previously made concerning affirmative
defense provisions applicable to startup
and shutdown events in the 1999 SSM
Guidance. The EPA also proposed to
grant the Petition with respect to
20.2.7.111 NMAC, which includes an
affirmative defense applicable during
malfunction events. The EPA previously
reasoned that this provision is
inconsistent with the CAA because it
neither limits the defense to only those
sources that do not have the potential to
cause exceedances of the NAAQS or
PSD increments nor requires sources to
make an ‘‘after the fact’’ showing that no
such exceedances actually occurred as
an element of the affirmative defense.
Finally, the EPA proposed to grant the
Petition with respect to 20.2.7.113
NMAC. The EPA previously stated its
belief that this provision is an
impermissible affirmative defense
because it does not explicitly limit the
N.M. Code R. § 20.2.7.112 and N.M. Code R.
§ 20.2.7.113 as citations to 20.2.7.111 NMAC,
20.2.7.112 NMAC and 20.2.7.113 NMAC, as
approved by the EPA on Sept. 14, 2009 (74 FR
46910) (hereinafter referred to as 20.2.7.111 NMAC,
20.2.7.112 NMAC and 20.2.7.113 NMAC).
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55943
defense to monetary penalties, it
establishes criteria that are inconsistent
with those in the EPA’s SSM Policy, and
it can be read to create different or
additional defenses from those that are
provided in underlying federal
technology-based emission limitations.
Thus, the EPA previously proposed to
find that all three of these provisions are
inconsistent with CAA sections
110(a)(2)(A), 110(a)(2)(C) and 302(k),
and with respect to CAA sections 113
and 304.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for the affirmative defense provisions
applicable to 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). The
EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets 20.2.7.111 NMAC
and 20.2.7.112 NMAC to provide
affirmative defenses that operate to limit
the jurisdiction of the federal court in an
enforcement action and to limit the
authority of the court to impose
monetary penalties as contemplated in
CAA sections 113 and 304. As to
20.2.7.113 NMAC, the EPA interprets
this provision to operate to limit the
jurisdiction of the federal court in an
enforcement action and to limit the
authority of the court to impose any
form of relief contemplated in CAA
sections 113 and 304. Thus, the EPA
believes that each of these provisions
interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
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emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find 20.2.7.111 NMAC,
20.2.7.112 NMAC and 20.2.7.113 NMAC
substantially inadequate to meet CAA
requirements and the EPA is thus
proposing to issue a SIP call with
respect to these provisions.
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3. New Mexico: Albuquerque-Bernalillo
County
a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified three affirmative defense
provisions in the SIP for the state of
New Mexico that apply in the
Albuquerque-Bernalillo County area.
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). The
EPA acknowledges that it explicitly
approved these affirmative defense
provisions in 2010, after ascertaining
that they were consistent with the
Agency’s interpretation of the CAA and
its recommendations for such
provisions in the 1999 SSM Guidance,
applicable at that point in time.50
In light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
50 See, ‘‘Approval and Promulgation of
Implementation Plans; Albuquerque-Bernalillo
County, NM; Excess Emissions,’’ 75 FR 5698 (Feb.
4, 2010).
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needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Although the EPA previously
determined that 20.11.49.16.A NMAC,
20.11.49.16.B NMAC and 20.11.49.16.C
NMAC were consistent with CAA
requirements, the Agency now believes
that these provisions impermissibly
purport to alter or eliminate the
jurisdiction of federal courts to assess
penalties for violations of SIP emission
limits. In the case of the affirmative
defenses applicable to malfunctions and
to startup and shutdown, the provisions
set forth the elements of an affirmative
defense to be asserted by sources in the
event of violations during such events.
In the case of the affirmative defense
applicable to emergencies, the provision
sets forth the elements of an affirmative
defense to be asserted in the event of
violations during emergencies. For each
of these affirmative defense provisions,
if the source is able to establish that it
met each of the specified criteria to a
trier of fact in an enforcement
proceeding, then the provision purports
to bar any civil penalties for those
violations (and in the case of the
affirmative defense for emergencies
could be construed to bar other forms of
relief as well). Accordingly, the EPA
believes that each of these affirmative
defense provisions is inconsistent with
the fundamental enforcement structure
of the CAA and the EPA thus believes
that these provisions are not consistent
with CAA requirements for SIP
provisions.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
the affirmative defense provisions
applicable to 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). The EPA is proposing to revise
its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
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jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets 20.11.49.16.A
NMAC and 20.11.49.16.B NMAC to
provide affirmative defenses that
operate to limit the jurisdiction of the
federal court in an enforcement action
and to limit the authority of the court to
impose monetary penalties as
contemplated in CAA sections 113 and
304. As to 20.11.49.16.C NMAC, the
EPA interprets this provision to operate
to limit the jurisdiction of the federal
court in an enforcement action and to
limit the authority of the court to
impose any form of relief contemplated
in CAA sections 113 and 304. Thus, the
EPA believes that each of these
provisions interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find 20.11.49.16.A NMAC,
20.11.49.16.B NMAC and 20.11.49.16.C
NMAC substantially inadequate to meet
CAA requirements and the EPA is thus
proposing to issue 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.
4. Texas
a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
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has identified four affirmative defense
provisions in the SIP for the state of
Texas. 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)).51 The EPA acknowledges
that it explicitly approved these
affirmative defense provisions in 2010,
after ascertaining that they were
consistent with the Agency’s
interpretation of the CAA and its
recommendations for such provisions in
the 1999 SSM Guidance, applicable at
that point in time. Moreover, the EPA
defended its approval of these specific
provisions (as well as its disapproval of
related provisions relevant to
affirmative defenses for planned events)
in litigation in the U.S. Court of Appeals
for the 5th Circuit.
In light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Although the EPA previously
determined that 30 TAC 101.222(b), 30
TAC 101.222(c), 30 TAC 101.222(d) and
30 TAC 101.222(e) were consistent with
CAA requirements, the Agency now
believes that these provisions
51 The EPA notes that ‘‘upsets’’ and ‘‘unplanned
events’’ in these provisions are what are more
commonly referred to as malfunctions, as confirmed
by the state at the time the EPA approved these
provisions as part of the SIP. See, ‘‘Approval and
Promulgation of Implementation Plans; Texas;
Excess Emissions During Startup, Shutdown,
Maintenance, and Malfunction,’’ 75 FR 68989 (Nov.
10, 2010).
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impermissibly purport to alter or
eliminate the jurisdiction of federal
courts to assess penalties for violations
of SIP emission limits. For all of these
affirmative defenses applicable to upsets
and unplanned events, the provisions
set forth the elements of an affirmative
defense to be asserted by sources in the
event of violations during such events.
For each of these affirmative defense
provisions, if the source is able to
establish that it met each of the
specified criteria to a trier of fact in an
enforcement proceeding, then the
provision purports to bar any civil
penalties for those violations.
Accordingly, the EPA believes that each
of these affirmative defense provisions
is inconsistent with the fundamental
enforcement structure of the CAA and
the EPA thus believes that these
provisions are not consistent with CAA
requirements for SIP provisions.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
the affirmative defense provisions
applicable to 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)). The
EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets 30 TAC
101.222(b), 30 TAC 101.222(c), 30 TAC
101.222(d), and 30 TAC 101.222(e) to
provide affirmative defenses that
operate to limit the jurisdiction of the
federal court in an enforcement action
and to limit the authority of the court to
impose monetary penalties as
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55945
contemplated in CAA sections 113 and
304. Thus, the EPA believes that each of
these provisions interferes with the
intended enforcement structure of the
CAA, through which parties may seek to
bring enforcement actions for violations
of SIP emission limits and courts may
exercise their jurisdiction to determine
what, if any, relief is appropriate. The
EPA appreciates the efforts previously
undertaken by the state to amend its SIP
to make it consistent with the CAA, as
interpreted in the Agency’s 1999 SSM
Guidance, but the EPA must now revise
its SSM Policy with respect to
affirmative defense provisions in SIPs.
For these reasons, the EPA is
proposing to find 30 TAC 101.222(b), 30
TAC 101.222(c), 30 TAC 101.222(d) and
30 TAC 101.222(e) substantially
inadequate to meet CAA requirements
and the EPA is thus proposing to issue
a SIP call with respect to these
provisions. The EPA notes that removal
of these four provisions from the SIP
will render cross-references to these
provisions in 30 TAC 101.221(e) (as it
applies to 30 TAC 101.222(b)–(e)), 30
TAC 101.222(f) and 30 TAC 101.222(g)
superfluous and no longer operative,
and the EPA thus recommends that
these provisions be removed as well.
F. Affected State in EPA Region VIII:
Colorado
1. Petitioner’s Analysis
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 § 1001–2(II.E)) and during
periods of startup and shutdown (5
Colo. Code Regs § 1001–2(II.J)).52 The
Petitioner acknowledged that this state
has correctly revised its SIP in
important ways in order to be consistent
with CAA requirements, as interpreted
in the EPA’s SSM Policy, including
providing affirmative defense provisions
that are limited to monetary penalties,
that do not apply in actions to enforce
federal standards such as NSPS or
NESHAP approved into the SIP, and
that meet ‘‘almost word for word’’ the
recommendations of the 1999 SSM
Guidance. Nevertheless, the Petitioner
had two concerns with these SIP
provisions.
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 state
52 Petition
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had properly followed EPA guidance in
the affirmative defense provision
applicable to startup and shutdown
events but failed to do so in the
affirmative defense provision applicable
to malfunctions. Specifically, the
Petitioner argued that the EPA’s own
guidance for affirmative defenses
recommended that they ‘‘are not
appropriate where a single source or a
small group of sources has the potential
to cause an exceedance of the NAAQS
or PSD increments.’’ 53 Instead, the
state’s affirmative defense for
malfunction events is potentially
available to any source, if it can
establish that the excess emissions
during the event did not result in
exceedances of ambient air quality
standards that could be attributed to the
source.54 The Petitioner objected to this
as not merely inconsistent with the
EPA’s 1999 SSM Guidance but also as
an approach ‘‘that does not have the
same deterrent effect’’ on sources and
that would not have the same effects on
sources to assure that they comply at all
times in order to avoid violations. As a
practical matter, the Petitioner also
argued that including this element to
the affirmative defense could ‘‘mire
enforcement proceedings in the
question of whether or not the NAAQS
or PSD increments were exceeded as a
matter of fact.’’
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2. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to 5 Colo. Code Regs
§ 1001–2(II.J) because it provides an
affirmative defense for violations due to
excess emissions applicable during
startup and shutdown events, contrary
to the EPA’s interpretation of the CAA.
The EPA noted at that time that an
affirmative defense for excess emissions
that occur during planned events such
as startup and shutdown was contrary to
the EPA’s then current interpretation of
the CAA to allow such affirmative
defenses only for events beyond the
control of the source, i.e., during
malfunctions. In the February 2013
proposal notice, the EPA proposed to
revise its SSM Policy to reflect this
interpretation of the CAA, and to update
the recommendations it previously
made concerning affirmative defense
provisions applicable to startup and
shutdown events in the 1999 SSM
Guidance. For these reasons, the EPA
previously proposed to find that 5 Colo.
Code Regs § 1001–2(II.J) is substantially
inadequate to meet CAA requirements
53 Id.
at 25.
5 Colo. Code Regs § 1001–2(II.E.1.j).
54 See,
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and proposed to issue a SIP call with
respect to this provision.
The EPA previously proposed to deny
the Petition with respect to 5 Colo. Code
Regs § 1001–2(II.E), because this
provision includes an affirmative
defense applicable to malfunction
events that is consistent with the
requirements of the CAA, as interpreted
by the EPA in the SSM Policy. In
particular, the EPA proposed to deny
the Petition with respect to the claim
that this provision is inconsistent with
the CAA because it is available to
sources or groups of sources that might
have the potential to cause an
exceedance of the NAAQS or PSD
increments. The EPA reasoned that an
acceptable alternative approach is to
require the source to establish, as an
element of the affirmative defense, that
the excess emissions in question did not
cause such impacts. The EPA noted in
the February 2013 proposal notice that
it was updating its previous guidance
recommendations to states for SIPs in
the SSM Policy in order to indicate that
in lieu of restricting the application of
an affirmative defense provision only to
sources without the potential to cause
NAAQS violations, the state could elect
to require a source to prove that the
excess emissions did not cause an
exceedance of the NAAQS or PSD
increments as an element of the defense
instead. Accordingly, the EPA
previously proposed to find that 5 Colo.
Code Regs § 1001–2(II.E) is consistent
with CAA requirements and declined to
make a finding of substantial
inadequacy with respect to this
provision.
3. The EPA’s Revised Proposal
In this SNPR, the EPA is proposing to
revise the basis for the finding of
substantial inadequacy and the SIP call
for the affirmative defense provisions
applicable to excess emissions that
occur during startup and shutdown in 5
Colo. Code Regs § 1001–2(II.J). The EPA
is also reversing its prior denial of the
Petition with respect to the affirmative
defense provision applicable to
malfunctions in 5 Colo. Code Regs
§ 1001–2(II.E) and is proposing to find
that provision substantially inadequate
and to issue a SIP call for that provision
as well. The EPA is proposing to revise
its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
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Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets 5 Colo. Code Regs
§ 1001–2(II.J) and 5 Colo. Code Regs
§ 1001–2(II.E) to provide affirmative
defenses that operate to limit the
jurisdiction of the federal court in an
enforcement action to assess monetary
penalties under certain circumstances as
contemplated in CAA sections 113 and
304. Thus, the EPA believes that these
provisions interfere with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find 5 Colo. Code Regs
§ 1001–2(II.J) and 5 Colo. Code Regs
§ 1001–2(II.E) substantially inadequate
to meet CAA requirements and the EPA
is thus proposing to issue a SIP call with
respect to these provisions.
G. Affected States and Local
Jurisdictions in EPA Region IX
1. Arizona
a. Petitioner’s Analysis
The Petitioner objected to two
provisions in the Arizona Department of
Environmental 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)).55 First, the Petitioner
asserted that all affirmative defenses for
excess emissions are inconsistent with
the CAA and should be removed from
the Arizona SIP.
Additionally, quoting from the EPA’s
recommendation in the SSM Policy that
such affirmative defenses should not be
available to ‘‘a single source or small
group of sources [that] has the potential
to cause an exceedance of the NAAQS
or PSD increments,’’ the Petitioner
contended that ‘‘sources with the power
to cause an exceedance should be
strictly controlled at all times, not just
when they actually cause an
55 Petition
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exceedance.’’ 56 Although
acknowledging that R18–2–310 contains
some limitations to address this issue,
the Petitioner argued that the limitations
in the SIP provision do not reduce the
incentive for such sources to emit at
levels close to those that would violate
a NAAQS or PSD increment in the way
that entirely disallowing affirmative
defenses for these types of sources
would. Accordingly, the Petitioner
requested that the EPA require Arizona
either to remove R18–2–310(B) and (C)
from the SIP entirely or to revise the
rule so that affirmative defenses ‘‘are not
available to a single source or one of a
small group of sources who have the
potential to cause an exceedance of the
NAAQS.’’
Second, the Petitioner asserted that
the provision applicable to startup and
shutdown periods (R18–2–310(C)) does
not include an explicit requirement for
a source seeking to establish an
affirmative defense to prove that ‘‘the
excess emissions were not part of a
recurring pattern indicative of
inadequate design, operation, or
maintenance.’’ The Petitioner provided
a table specifically comparing the
provisions in R18–2–310(C) against the
EPA’s recommended criteria for
affirmative defense provisions in the
1999 SSM Guidance to show that R18–
2–310(C) does not contain a specific
provision to address this recommended
criterion and stated that the SIP
provision should be revised to require
such a demonstration.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to deny the Petition
with respect to the arguments
concerning ADEQ’s affirmative defense
provisions for malfunctions in R18–2–
310(B) because this provision is
consistent with the requirements of the
CAA, as interpreted by the EPA in the
SSM Policy. In particular, the EPA
proposed to deny the Petition with
respect to the claim that this provision
is inconsistent with the CAA because it
is available to sources or groups of
sources that might have the potential to
cause an exceedance of the NAAQS or
PSD increments. The EPA reasoned that
an acceptable alternative approach is to
require the source to establish, as an
element of the affirmative defense, that
the excess emissions in question did not
cause such impacts. The EPA noted in
the February 2013 proposal notice that
it was updating its previous guidance
recommendations to states for SIPs in
the SSM Policy in order to indicate that
in lieu of restricting the application of
an affirmative defense provision only to
56 Petition
at 20.
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sources without the potential to cause
NAAQS violations, the state could elect
to require a source to prove that the
excess emissions did not cause a
violation of the NAAQS as an element
of the defense instead. Accordingly, the
EPA previously proposed to find that
R18–2–310(B) is consistent with CAA
requirements and declined to make a
finding of substantial inadequacy with
respect to this provision.
With respect to the arguments
concerning ADEQ’s affirmative defense
provisions for startup and shutdown
periods in R18–2- 310(C), the EPA
proposed to grant the Petition because it
provides an affirmative defense for
violations due to excess emissions
applicable during startup and shutdown
events, contrary to the EPA’s current
interpretation of the CAA. The EPA
noted at that time that an affirmative
defense for excess emissions that occur
during planned events such as startup
and shutdown was contrary to the EPA’s
then current interpretation of the CAA
to allow such affirmative defenses only
for events beyond the control of the
source, i.e., during malfunctions. In the
February 2013 proposal notice, the EPA
proposed to revise its SSM Policy to
reflect this interpretation of the CAA,
and to update the recommendations it
previously made concerning affirmative
defense provisions applicable to startup
and shutdown events in the 1999 SSM
Guidance. For these reasons, the EPA
previously proposed to find that R18–2–
310(C) is substantially inadequate to
meet CAA requirements and proposed
to issue a SIP call with respect to this
provision.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is reversing its
prior proposed denial of the Petition
with respect to the affirmative defense
provision applicable to malfunctions in
R18–2–310(B) and is proposing to find
that provision substantially inadequate
and to issue a SIP call for that provision.
The EPA is also revising the prior basis
for the finding of substantial inadequacy
and the SIP call for the affirmative
defense provisions applicable to excess
emissions that occur during startup and
shutdown in R18–2–310(C). The EPA is
proposing to revise its interpretation of
the CAA with respect to affirmative
defense provisions in SIPs. Previously
the EPA assessed whether such
provisions met certain requirements,
such as being limited to monetary
penalties rather than injunctive relief
and containing sufficiently robust
criteria to assure that the defense
applied only in appropriately narrow
circumstances. Now, the Agency must
evaluate such provisions to determine
whether they are constructed in a way
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55947
that would purport to preclude federal
court jurisdiction under section 113 to
assess civil penalties or other forms of
relief for violations of SIP emission
limits, to prevent courts from
considering the statutory factors for the
assessment of civil penalties under
section 113 or to interfere with the
rights of litigants to pursue enforcement
consistent with their rights under the
citizen suit provision of section 304.
The EPA interprets R18–2–310(B) and
R18–2–310(C) to provide affirmative
defenses that operate to limit the
jurisdiction of the federal court in an
enforcement action to assess monetary
penalties under certain circumstances as
contemplated in CAA sections 113 and
304. Thus, the EPA believes that these
provisions interfere with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find R18–2–310(B) and
R18–2–310(C) substantially inadequate
to meet CAA requirements and the EPA
is thus proposing to issue a SIP call with
respect to these provisions.
2. Arizona: Maricopa County
a. Petitioner’s Analysis
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, § 401) and for
excess emissions during startup or
shutdown (Maricopa County Air
Pollution Control Regulation 3, Rule
140, § 402).57 These provisions in
Maricopa County Air Quality
Department (MCAQD) Rule 140 are
similar to the affirmative defense
provisions in ADEQ R18–2–310.58
First, the Petitioner asserted that the
affirmative defense provisions in Rule
140 are problematic for the same
reasons identified in the Petition with
respect to ADEQ R18–2–310.
Specifically, the Petitioner argued that
affirmative defenses should not be
allowed in any SIP and, alternatively,
that to the extent affirmative defenses
are permissible, the provisions in Rule
140 addressing exceedances of the
ambient standards are ‘‘inappropriately
permissive and do not comply with EPA
guidance.’’ 59 Accordingly, the
57 Petition
58 Petition
at 23.
at 20–22.
59 Id.
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Petitioner requested that the EPA
require Arizona and/or MCAQD either
to remove these provisions from the SIP
entirely or to revise them so that they
are not available to a single source or
small group of sources that has the
potential to cause a NAAQS
exceedance. Second, the Petitioner
asserted that the provisions for startup
and shutdown in Rule 140 do not
include an explicit requirement for a
source seeking to establish an
affirmative defense to prove that ‘‘the
excess emissions in question were not
part of a recurring pattern indicative of
inadequate design, operation, or
maintenance.’’ The Petitioner argued
that Rule 140 should be revised to
require such a demonstration.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to deny the Petition
with respect to the arguments
concerning MCAQD’s affirmative
defense provisions for malfunctions in
Regulation 3, Rule 140, § 401 because
this provision is consistent with the
requirements of the CAA, as interpreted
by the EPA in the SSM Policy. In
particular, the EPA proposed to deny
the Petition with respect to the claim
that this provision is inconsistent with
the CAA because it is available to
sources or groups of sources that might
have the potential to cause an
exceedance of the NAAQS or PSD
increments. The EPA reasoned that an
acceptable alternative approach is to
require the source to establish, as an
element of the affirmative defense, that
the excess emissions in question did not
cause such impacts. The EPA noted in
the February 2013 proposal notice that
it was updating its previous guidance
recommendations to states for SIPs in
the SSM Policy in order to indicate that
in lieu of restricting the application of
an affirmative defense provision only to
sources without the potential to cause
NAAQS violations, the state could elect
to require a source to prove that the
excess emissions did not cause a
violation of the NAAQS as an element
of the defense instead. Accordingly, the
EPA previously proposed to find that
Regulation 3, Rule 140, § 401 is
consistent with CAA requirements and
declined to make a finding of
substantial inadequacy with respect to
this provision.
With respect to the arguments
concerning ADEQ’s affirmative defense
provisions for startup and shutdown
periods in Regulation 3, Rule 140, § 402,
the EPA previously proposed to grant
the Petition because it provides an
affirmative defense for violations due to
excess emissions applicable during
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startup and shutdown events, contrary
to the EPA’s interpretation of the CAA.
The EPA noted at that time that an
affirmative defense for excess emissions
that occur during planned events such
as startup and shutdown was contrary to
the EPA’s then current interpretation of
the CAA to allow such affirmative
defenses only for events beyond the
control of the source, i.e., during
malfunctions. In the February 2013
proposal notice, the EPA proposed to
revise its SSM Policy to reflect this
interpretation of the CAA, and to update
the recommendations it previously
made concerning affirmative defense
provisions applicable to startup and
shutdown events in the 1999 SSM
Guidance. For these reasons, the EPA
previously proposed to find that
Maricopa County Air Pollution Control
Regulation 3, Rule 140, § 402 is
substantially inadequate to meet CAA
requirements and proposed to issue a
SIP call with respect to this provision.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is reversing its
prior proposed denial of the Petition
with respect to the affirmative defense
provision applicable to malfunctions in
Regulation 3, Rule 140, § 401 and is
proposing to find that provision
substantially inadequate and to issue a
SIP call for that provision. The EPA is
also revising the prior basis for the
finding of substantial inadequacy and
the SIP call for the affirmative defense
provisions applicable to excess
emissions that occur during startup and
shutdown in Regulation 3, Rule 140,
§ 402. The EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets Regulation 3, Rule
140, § 401 and Regulation 3, Rule 140,
§ 402 to provide affirmative defenses
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Sfmt 4702
that operate to limit the jurisdiction of
the federal court in an enforcement
action to assess monetary penalties
under certain circumstances as
contemplated in CAA sections 113 and
304. Thus, the EPA believes that these
provisions interfere with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find Regulation 3, Rule
140, § 401 and Regulation 3, Rule 140,
§ 402 substantially inadequate to meet
CAA requirements and the EPA is thus
proposing to issue a SIP call with
respect to these provisions.
3. California: Eastern Kern Air Pollution
Control District
a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified an affirmative defense
provision in the SIP for the state of
California applicable in the Eastern
Kern Air Pollution Control District
(APCD). 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 light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
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As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Kern County Rule 111 includes
the elements of an affirmative defense to
be asserted by sources in the event of
violations during breakdown
conditions. The provision defines
‘‘breakdown conditions’’ as any
unforeseeable failure or malfunction of
air pollution control equipment or
monitoring equipment. If the source is
able to establish that it met each of the
specified criteria to an ‘‘air pollution
control officer’’ (i.e., an official of the
state or the Eastern Kern APCD), then
the provision purports to bar any
enforcement action and thus any form of
remedy for the violations that occur
during the malfunction. Accordingly,
the EPA believes that the affirmative
defense provision created by Kern
County Rule 111 is inconsistent with
the fundamental enforcement structure
of the CAA and the EPA thus believes
that the provision is not consistent with
CAA requirements for SIP provisions.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
Kern County Rule 111 Equipment
Breakdown in the California SIP
applicable in the Eastern Kern APCD.60
The EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
The EPA notes that Kern County Rule
111 did not meet the Agency’s prior
interpretation of the CAA with regard to
affirmative defense provisions in SIPs.
Regardless of that fact, however, the
Agency must now evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
60 The EPA is proposing in this SNPR to make a
finding of substantial inadequacy and to issue 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 APCD.
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pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets Kern County
‘‘Rule 111 Equipment Breakdown’’ to
provide an affirmative defense that
operates to limit the jurisdiction of the
federal court in an enforcement action
and to limit the authority of the court to
impose monetary penalties as
contemplated in CAA sections 113 and
304. The provision provides that if a
violating source meets certain criteria
set forth in Rule 111, then ‘‘no
enforcement action may be taken.’’ By
proscribing any enforcement by any
party if the source meets certain criteria,
Rule 111 creates an affirmative defense
that would preclude enforcement for
excess emissions that would otherwise
constitute a violation of the applicable
SIP emission limitations. Thus, the EPA
believes that this provision interferes
with the intended enforcement structure
of the CAA, through which parties may
seek to bring enforcement actions for
violations of SIP emission limits and
courts may exercise their jurisdiction to
determine what, if any, relief is
appropriate.
For these reasons, the EPA is
proposing to find Kern County ‘‘Rule
111 Equipment Breakdown’’
substantially inadequate to meet CAA
requirements and the EPA is thus
proposing to issue a SIP call with
respect to this provision.
4. California: Imperial County Air
Pollution Control District
a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified an affirmative defense
provision in the SIP for the state of
California applicable in the Imperial
Valley APCD. 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 light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
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55949
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Imperial County Rule 111
includes the elements of an affirmative
defense to be asserted by sources in the
event of violations during breakdown
conditions. The provision defines
‘‘breakdown conditions’’ as any
unforeseeable failure or malfunction of
air pollution control equipment or
monitoring equipment. If the source is
able to establish that it met each of the
specified criteria to an ‘‘air pollution
control officer’’ (i.e., an official of the
state or the Imperial Valley APCD), then
the provision purports to bar any
enforcement action and thus any form of
remedy for the violations that occur
during the malfunction. Accordingly,
the EPA believes that the affirmative
defense provision created by Imperial
County Rule 111 is inconsistent with
the fundamental enforcement structure
of the CAA and the EPA thus believes
that the provision is not consistent with
CAA requirements for SIP provisions.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
Imperial County ‘‘Rule 111 Equipment
Breakdown’’ in the California SIP
applicable in the Imperial Valley APCD.
The EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
The EPA notes that Imperial County
Rule 111 did not meet the Agency’s
prior interpretation of the CAA with
regard to affirmative defense provisions
in SIPs. Regardless of that fact, however,
the Agency must now evaluate such
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provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets Imperial County
‘‘Rule 111 Equipment Breakdown’’ to
provide an affirmative defense that
operates to limit the jurisdiction of the
federal court in an enforcement action
and to limit the authority of the court to
impose monetary penalties as
contemplated in CAA sections 113 and
304. The provision provides that if a
violating source meets certain criteria
set forth in Rule 111, then ‘‘no
enforcement action may be taken.’’ By
proscribing any enforcement by any
party if the source meets certain criteria,
Rule 111 creates an affirmative defense
that would preclude enforcement for
excess emissions that would otherwise
constitute a violation of the applicable
SIP emission limitations. Thus, the EPA
believes that this provision interferes
with the intended enforcement structure
of the CAA, through which parties may
seek to bring enforcement actions for
violations of SIP emission limits and
courts may exercise their jurisdiction to
determine what, if any, relief is
appropriate.
For these reasons, the EPA is
proposing to find Imperial County ‘‘Rule
111 Equipment Breakdown’’
substantially inadequate to meet CAA
requirements and the EPA is thus
proposing to issue a SIP call with
respect to this provision.
5. California: San Joaquin Valley Air
Pollution Control District
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a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified affirmative defense
provisions in the SIP for the state of
California applicable in the San Joaquin
Valley APCD. The affirmative defenses
are included in: (i) Fresno County ‘‘Rule
110 Equipment Breakdown’’; (ii) Kern
County ‘‘Rule 111 Equipment
Breakdown’’; (iii) Kings County ‘‘Rule
111 Equipment Breakdown’’; (iv)
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Madera County ‘‘Rule 113 Equipment
Breakdown’’; (v) Stanislaus County
‘‘Rule 110 Equipment Breakdown’’; and
(vi) Tulare County ‘‘Rule 111 Equipment
Breakdown.’’ 61 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 light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Fresno County Rule 110, Kern
County Rule 111, Kings County Rule
111, Madera County Rule 113,
Stanislaus County Rule 110 and Tulare
County Rule 111 include the elements
of an affirmative defense to be asserted
by sources in the event of violations
during breakdown conditions. Each of
these provisions defines ‘‘breakdown
conditions’’ in comparable ways as any
61 The EPA notes that comparable provisions
appear in the California SIP for the San Joaquin
Valley APCD in Merced County (in ‘‘Rule 109
Equipment Breakdown’’) and in San Joaquin
County (in ‘‘Rule 110 Equipment Breakdown’’).
However, the EPA interprets these provisions to be
enforcement discretion provisions, applicable only
to the state or air district personnel. In each of these
counties, the applicable rules provide that if the
source meets certain criteria, then ‘‘the Air
Pollution Control Officer may elect to take no
enforcement action.’’ The EPA believes that these
provisions unequivocally apply only to the exercise
of enforcement discretion by the state or air district
personnel and are not operative in the event of
enforcement by the EPA or others under the
authority of the citizen suit provision of CAA
section 304. For this reason, the EPA is not
proposing to make a finding of substantial
inadequacy and a SIP call for these comparable
provisions in Merced County Rule 109 and San
Joaquin County Rule 110. If the state of California
disagrees with this interpretation, the EPA
anticipates that the state will inform the Agency of
that fact though comment on this SNPR.
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unforeseeable failure or malfunction of
air pollution control equipment or
monitoring equipment. If the source is
able to establish that it met each of the
specified criteria to a ‘‘Control Officer’’
(i.e., an official of the state or the San
Joaquin Valley APCD), then the
provision purports to bar any
enforcement action and thus any form of
remedy for the violations that occur
during the malfunction. Accordingly,
the EPA believes that each of the
affirmative defense provisions created
by Fresno County Rule 110, Kern
County Rule 111, Kings County Rule
111, Madera County Rule 113,
Stanislaus County Rule 110 and Tulare
County Rule 111 is inconsistent with
the fundamental enforcement structure
of the CAA and the EPA thus believes
that these provisions are not consistent
with CAA requirements for SIP
provisions.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
six provisions in the California SIP
applicable in the San Joaquin Valley
APCD: (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.’’ 62 The EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
The EPA notes that Fresno County Rule
110, Kern County Rule 111, Kings
County Rule 111, Madera County Rule
113, Stanislaus County Rule 110 and
Tulare County Rule 111 did not meet
the Agency’s prior interpretation of the
CAA with regard to affirmative defense
provisions in SIPs. Regardless of that
fact, however, the Agency must now
evaluate such provisions to determine
whether they are constructed in a way
that would purport to preclude federal
court jurisdiction under section 113 to
62 The EPA is proposing in this SNPR to make a
finding of substantial inadequacy and to issue 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 APCD.
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assess civil penalties or other forms of
relief for violations of SIP emission
limits, to prevent courts from
considering the statutory factors for the
assessment of civil penalties under
section 113 or to interfere with the
rights of litigants to pursue enforcement
consistent with their rights under the
citizen suit provision of section 304.
The EPA interprets Fresno County
Rule 110, Kern County Rule 111, Kings
County Rule 111, Madera County Rule
113, Stanislaus County Rule 110 and
Tulare County Rule 111 to provide
affirmative defenses that operate to limit
the jurisdiction of the federal court in an
enforcement action and to limit the
authority of the court to impose
monetary penalties as contemplated in
CAA sections 113 and 304. These
provisions provide that if a violating
source meets certain criteria set forth in
each of the Rules, then ‘‘no enforcement
action may be taken.’’ By proscribing
any enforcement by any party if the
source meets certain criteria, each of
these provisions creates an affirmative
defense that would preclude
enforcement for excess emissions that
would otherwise constitute a violation
of the applicable SIP emission
limitations. Thus, the EPA believes that
these provisions interfere with the
intended enforcement structure of the
CAA, through which parties may seek to
bring enforcement actions for violations
of SIP emission limits and courts may
exercise their jurisdiction to determine
what, if any, relief is appropriate.
For these reasons, the EPA is
proposing to find Fresno County ‘‘Rule
110 Equipment Breakdown,’’ Kern
County ‘‘Rule 111 Equipment
Breakdown,’’ Kings County ‘‘Rule 111
Equipment Breakdown,’’ Madera
County ‘‘Rule 113 Equipment
Breakdown,’’ Stanislaus County ‘‘Rule
110 Equipment Breakdown’’ and Tulare
County ‘‘Rule 111 Equipment
Breakdown’’ substantially inadequate to
meet CAA requirements and the EPA is
thus proposing to issue a SIP call with
respect to these provisions.
H. Affected States and Local
Jurisdictions in EPA Region X
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1. Alaska
a. Petitioner’s Analysis
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 § 50.240).63
The provision provides: ‘‘Excess
63 Petition
at 18–20.
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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
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
further argued that it is unclear whether
the provision could be interpreted to bar
enforcement actions brought by the EPA
or citizens, because it is drafted as if the
state were the sole enforcement
authority. Finally, the Petitioner pointed
out, the provision is worded as if it were
an affirmative defense, but it uses
criteria for enforcement discretion.
Finally, the Petitioner pointed out, the
provision is worded as if it were an
affirmative defense, but it uses criteria
more relevant for enforcement
discretion. In other words, the Petitioner
argued that the provision is inconsistent
with the EPA’s recommendations for
affirmative defense provisions in SIPs in
the 1999 SSM Guidance.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to Alaska Admin. Code tit.
18 § 50.240. To the extent that this
provision is intended to be an
affirmative defense, the EPA believed it
to be deficient to meet the requirements
of the CAA for such provisions. The
provision applies to excess emissions
during startup, shutdown and
maintenance events, contrary to the
EPA’s then current interpretation of the
CAA to allow such affirmative defenses
only for malfunctions. The EPA noted at
that time that an affirmative defense for
excess emissions that occur during
planned events such as startup and
shutdown was contrary to the EPA’s
then current interpretation of the CAA
to allow such affirmative defenses only
for events beyond the control of the
source, i.e., during malfunctions. In the
February 2013 proposal notice, the EPA
proposed to revise its SSM Policy to
reflect this interpretation of the CAA,
and to update the recommendations it
previously made concerning affirmative
defense provisions applicable to startup
and shutdown events in the 1999 SSM
Guidance. Additionally, the EPA
previously reasoned that the section of
Alaska Admin. Code tit. 18 § 50.240
applying to ‘‘upsets’’ is inadequate
because the criteria referenced are not
sufficiently similar to those
recommended in the EPA’s SSM Policy
for affirmative defense provisions
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applicable to malfunctions. Thus, the
EPA previously considered Alaska
Admin. Code tit. 18 § 50.240 to be
inconsistent with the fundamental
requirements of the CAA and thus
proposed to find the provision
substantially inadequate to meet CAA
requirements and to issue a SIP call
with respect to the provision.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is revising the
prior basis for the finding of substantial
inadequacy and the SIP call for the
affirmative defense provisions
applicable to excess emissions that
occur during startup, shutdown and
upsets in Alaska Admin. Code tit. 18
§ 50.240. The EPA is proposing to revise
its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets Alaska Admin.
Code tit. 18 § 50.240 to provide
affirmative defenses that operate to limit
the jurisdiction of the federal court in an
enforcement action to assess monetary
penalties or impose injunctive relief
under certain circumstances as
contemplated in CAA sections 113 and
304. Thus, the EPA believes that this
provision interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find Alaska Admin. Code
tit. 18 § 50.240 substantially inadequate
to meet CAA requirements and the EPA
is thus proposing to issue a SIP call with
respect to this provision. The EPA notes
that in this SNPR it is only addressing
this provision with respect to its
deficiency as an affirmative defense
provision and is not revising its
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February 2013 proposal notice with
respect to the other separate bases for
the finding of substantial inadequacy of
this provision.
2. Washington
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a. Petitioner’s Analysis
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 § 173–400–107).64
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
further argued that it is unclear whether
the provision could be interpreted to bar
enforcement actions brought by the EPA
or citizens, because it is drafted as if the
state were the sole enforcement
authority. Finally, the Petitioner pointed
out, the provision is worded as if it were
an affirmative defense, but it uses
criteria more relevant for enforcement
discretion.
b. The EPA’s Prior Proposal
In the February 2013 proposal notice,
the EPA proposed to grant the Petition
with respect to Wash. Admin. Code
§ 173–400–107. The provision applies to
startup, shutdown and maintenance
events, contrary to the EPA’s then
current interpretation of the CAA to
allow such affirmative defenses only for
malfunctions. The EPA noted at that
time that an affirmative defense for
excess emissions that occur during
planned events such as startup,
shutdown and maintenance was
contrary to the EPA’s then current
interpretation of the CAA to allow such
affirmative defenses only for events
beyond the control of the source, i.e.,
during malfunctions. In the February
2013 proposal notice, the EPA proposed
to revise its SSM Policy to reflect this
interpretation of the CAA, and to update
the recommendations it previously
made concerning affirmative defense
provisions applicable to startup and
shutdown events in the 1999 SSM
Guidance.65 Furthermore, the EPA
64 Petition
at 71–72.
EPA notes that its SSM Policy guidance
has always stated that affirmative defense
provisions in SIPs are not appropriate for excess
emissions that occur during maintenance activities.
65 The
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previously reasoned that the section of
Wash. Admin. Code § 173–400–107
applying to ‘‘upsets’’ is inadequate
because the criteria referenced are not
sufficiently similar to those
recommended in the EPA’s SSM Policy
for affirmative defense provisions
applicable to malfunctions. Moreover,
the provision appears to bar the EPA
and citizens from seeking penalties and
injunctive relief. Thus, the EPA
previously considered Wash. Admin.
Code § 173–400–107 to be inconsistent
with the fundamental requirements of
the CAA and the EPA thus proposed to
find the provision substantially
inadequate to meet CAA requirements
and proposed to issue a SIP call with
respect to the provision.
c. The EPA’s Revised Proposal
In this SNPR, the EPA is revising the
prior basis for the proposed finding of
substantial inadequacy and the
proposed SIP call for the affirmative
defense provisions applicable to excess
emissions that occur during startup,
shutdown, maintenance and upsets in
Wash. Admin. Code § 173–400–107. The
EPA is proposing to revise its
interpretation of the CAA with respect
to affirmative defense provisions in
SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
Now, the Agency must evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets Wash. Admin.
Code § 173–400–107 to provide
affirmative defenses that operate to limit
the jurisdiction of the federal court in an
enforcement action to assess monetary
The 1999 SSM Guidance only made
recommendations with respect to affirmative
defense provisions applicable to malfunctions and
to startup and shutdown. The 1983 SSM Guidance
recommended that ‘‘scheduled maintenance is a
predictable event which can be scheduled at the
discretion of the operator’’ and therefore
recommended even against the exercise of
enforcement discretion for violations during
maintenance except under limited circumstances.
See 1983 SSM Guidance at Attachment, Page 3.
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penalties or impose injunctive relief
under certain circumstances as
contemplated in CAA sections 113 and
304. Thus, the EPA believes that this
provision interferes with the intended
enforcement structure of the CAA,
through which parties may seek to bring
enforcement actions for violations of SIP
emission limits and courts may exercise
their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is
proposing to find Wash. Admin. Code
§ 173–400–107 substantially inadequate
to meet CAA requirements and the EPA
is thus proposing to issue a SIP call with
respect to this provision. The EPA notes
that in this SNPR it is only addressing
this provision with respect to its
deficiency as an affirmative defense
provision and is not revising its
February 2013 proposal notice with
respect to the other separate bases for
the finding of substantial inadequacy of
this provision.
3. Washington: Energy Facility Site
Evaluation Council
a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified affirmative defense
provisions in the SIP for the state of
Washington that relate to the Energy
Facility Site Evaluation Council
(EFSEC).66 The EFSEC portion of the
SIP includes Wash. Admin. Code § 463–
39–005, which adopts by reference
Wash. Admin. Code § 173–400–107,
thereby incorporating the affirmative
defenses applicable to startup,
shutdown, scheduled maintenance and
‘‘upsets’’ for which, as explained earlier
in this SNPR, the EPA has proposed to
find Wash. Admin. Code § 173–400–107
substantially inadequate to meet CAA
requirements.
In light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
66 This is the state agency that reviews and
authorizes the construction and operation of major
energy facilities in Washington for all media in lieu
of any other individual state or local agency
permits. Thus these affirmative defense provisions
can become embodied in the authorizations for
such sources.
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states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Wash. Admin. Code § 463–39–
005 incorporates by reference the
elements of an affirmative defense to be
asserted by sources in the event of
violations during startup, shutdown,
scheduled maintenance and upsets. The
provision provides criteria for each type
of event. If the source is able to establish
that it met each of the specified criteria,
then the provision purports to bar any
enforcement action and thus any form of
remedy for the violations that occur
during such events. The provision
explicitly states that if the criteria are
met, then the violations ‘‘shall be
excused and not subject to penalty.’’
Accordingly, the EPA believes that the
affirmative defenses created by Wash.
Admin. Code § 463–39–005 through its
incorporation by reference of Wash.
Admin. Code § 173–400–107 are
inconsistent with the fundamental
enforcement structure of the CAA and
the EPA thus believes that the Wash.
Admin. Code § 463–39–005 provision is
not consistent with CAA requirements
for SIP provisions.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
Wash. Admin. Code § 463–39–005’s
incorporation by reference of Wash.
Admin. Code § 173–400–107 in the
Washington SIP with respect to the
EFSEC. The EPA is proposing to revise
its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. Previously the EPA assessed
whether such provisions met certain
requirements, such as being limited to
monetary penalties rather than
injunctive relief and containing
sufficiently robust criteria to assure that
the defense applied only in
appropriately narrow circumstances.
The EPA notes that the affirmative
defenses created in Wash. Admin. Code
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§ 463–39–005 through its incorporation
by reference of Wash. Admin. Code
§ 173–400–107 did not meet the
Agency’s prior interpretation of the
CAA with regard to affirmative defense
provisions in SIPs. Regardless of that
fact, however, the Agency must now
evaluate such provisions to determine
whether they are constructed in a way
that would purport to preclude federal
court jurisdiction under section 113 to
assess civil penalties or other forms of
relief for violations of SIP emission
limits, to prevent courts from
considering the statutory factors for the
assessment of civil penalties under
section 113 or to interfere with the
rights of litigants to pursue enforcement
consistent with their rights under the
citizen suit provision of section 304.
The EPA interprets Wash. Admin.
Code § 463–39–005’s incorporation by
reference of Wash. Admin. Code § 173–
400–107 to provide affirmative defenses
that would operate to limit the
jurisdiction of the federal court in an
enforcement action and to limit the
authority of the court to impose
monetary penalties as contemplated in
CAA sections 113 and 304. The
provision provides that if a violating
source meets certain criteria
incorporated by reference from Wash.
Admin. Code § 173–400–107, then the
excess emissions are ‘‘excused and not
subject to penalty.’’ By proscribing any
enforcement by any party if the source
meets certain criteria, Wash. Admin.
Code § 463–39–005 creates affirmative
defenses that would preclude
enforcement for excess emissions that
would otherwise constitute a violation
of the applicable SIP emission
limitations. Thus, the EPA believes that
this provision interferes with the
intended enforcement structure of the
CAA, through which parties may seek to
bring enforcement actions for violations
of SIP emission limits and courts may
exercise their jurisdiction to determine
what, if any, relief is appropriate.
For these reasons, the EPA is
proposing to find Wash. Admin. Code
§ 463–39–005’s incorporation by
reference of Wash. Admin. Code § 173–
400–107 substantially inadequate to
meet CAA requirements and the EPA is
thus proposing to issue a SIP call with
respect to this provision.
4. Washington: Southwest Clean Air
Agency
a. The EPA’s Evaluation
In addition to evaluating specific
affirmative defense provisions identified
by the Petitioner, the EPA is also
evaluating other affirmative defense
provisions that may be affected by the
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55953
Agency’s revision of its interpretation of
CAA requirements for such provisions
in SIPs. As part of its review, the EPA
has identified affirmative defense
provisions in the SIP for the state of
Washington applicable in the portion of
the state regulated by the Southwest
Clean Air Agency (SWCAA).67 The
affirmative defenses are included in the
SIP in SWAPCA ‘‘400–107 Excess
Emissions.’’ This SIP provision 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 § 173–400–107 in all
respects except that SWAPCA 400–
107(3) contains a more stringent
requirement for the reporting of excess
emissions.
In light of the court’s decision in
NRDC v. EPA, the EPA is proposing to
revise its SSM Policy concerning the
issue of affirmative defense provisions.
In particular, the EPA is proposing to
reverse its prior recommendations to
states on this issue provided in the 1999
SSM Guidance. In that guidance, the
EPA had interpreted the CAA to permit
states to elect to create narrowly drawn
affirmative defense provisions in SIPs,
both for malfunction events and for
startup and shutdown events, so long as
the provisions were consistent with the
criteria recommended by the Agency. In
the February 2013 proposal notice, the
EPA had already proposed to revise this
interpretation of the CAA to permit
states to develop affirmative defense
provisions only for malfunction events
and not for startup and shutdown
events. The decision of the court in
NRDC v. EPA indicates that the EPA
needs to revise the SSM Policy yet
further.
As discussed in sections IV and V of
this SNPR, the EPA is proposing to
revise its interpretation of the CAA with
respect to affirmative defense provisions
in SIPs. SWAPCA 400–107 Excess
Emissions includes the elements of an
affirmative defense to be asserted by
sources in the event of violations during
startup and shutdown, maintenance and
upsets. The provision provides criteria
for each type of event. If the source is
able to establish that it met each of the
specified criteria to ‘‘the Authority or
the decision-making entity’’ (i.e.,
officials of the state or the SWCAA),
then the provision purports to bar any
enforcement action and thus any form of
67 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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remedy for the violations that occur
during such events. The provision
explicitly states that if the criteria are
met, then the violations ‘‘shall be
excused and not subject to penalty.’’
Accordingly, the EPA believes that the
affirmative defenses created by
SWAPCA 400–107 are inconsistent with
the fundamental enforcement structure
of the CAA and the EPA thus believes
that the provision is not consistent with
CAA requirements for SIP provisions.
b. The EPA’s Proposal
In this SNPR, the EPA is proposing to
make a finding of substantial
inadequacy and to issue a SIP call for
SWAPCA ‘‘400–107 Excess Emissions’’
in the Washington SIP applicable in the
area regulated by SWCAA. The EPA is
proposing to revise its interpretation of
the CAA with respect to affirmative
defense provisions in SIPs. Previously
the EPA assessed whether such
provisions met certain requirements,
such as being limited to monetary
penalties rather than injunctive relief
and containing sufficiently robust
criteria to assure that the defense
applied only in appropriately narrow
circumstances. The EPA notes that
SWAPCA 400–107 Excess Emissions
did not meet the Agency’s prior
interpretation of the CAA with regard to
affirmative defense provisions in SIPs.
Regardless of that fact, however, the
Agency must now evaluate such
provisions to determine whether they
are constructed in a way that would
purport to preclude federal court
jurisdiction under section 113 to assess
civil penalties or other forms of relief for
violations of SIP emission limits, to
prevent courts from considering the
statutory factors for the assessment of
civil penalties under section 113 or to
interfere with the rights of litigants to
pursue enforcement consistent with
their rights under the citizen suit
provision of section 304.
The EPA interprets SWAPCA ‘‘400–
107 Excess Emissions’’ to provide
affirmative defenses that operate to limit
the jurisdiction of the federal court in an
enforcement action and to limit the
authority of the court to impose
monetary penalties as contemplated in
CAA sections 113 and 304. The
provision provides that if a violating
source meets certain criteria set forth in
SWAPCA 400–107, then the excess
emissions are ‘‘excused and not subject
to penalty.’’ By proscribing any
enforcement by any party if the source
meets certain criteria, SWAPCA 400–
107 creates affirmative defenses that
would preclude enforcement for excess
emissions that would otherwise
constitute a violation of the applicable
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SIP emission limitations. Thus, the EPA
believes that this provision interferes
with the intended enforcement structure
of the CAA, through which parties may
seek to bring enforcement actions for
violations of SIP emission limits and
courts may exercise their jurisdiction to
determine what, if any, relief is
appropriate.
For these reasons, the EPA is
proposing to find SWAPCA ‘‘400–107
Excess Emissions’’ substantially
inadequate to meet CAA requirements
and the EPA is thus proposing to issue
a SIP call with respect to this provision.
VIII. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is a
‘‘significant regulatory action’’ because
it raises novel legal or policy issues.
Accordingly, the EPA submitted this
action to the Office of Management and
Budget (OMB) for review under
Executive Orders 12866 and 13563 (76
FR 3821, January 21, 2011) and any
changes made in response to OMB
recommendations have been
documented in the docket for this
action.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. The
EPA’s SPNR, in response to the Petition,
merely states the EPA’s current
interpretation of the statutory
requirements of the CAA and does not
require states to collect any additional
information. To the extent that the EPA
proposes to issue a SIP call to a state
under CAA section 110(k)(5), the EPA is
only proposing an action that requires
the state to revise its SIP to comply with
existing requirements of the CAA.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice-and-comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities.68
68 Small entities include small businesses, small
organizations and small governmental jurisdictions.
For purposes of assessing the impacts of this notice
on small entities, small entity is defined as: (1) A
small business that is a small industrial entity as
defined in the U.S. Small Business Administration
(SBA) size standards (see 13 CFR 121.201); (2) a
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After considering the economic
impacts of this SNPR on small entities,
I certify that this action will not have a
significant economic impact on a
substantial number of small entities.
Courts have interpreted the RFA to
require a regulatory flexibility analysis
only when small entities will be subject
to the requirements of the rule. 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).
This proposed rule will not impose any
requirements on small entities. Instead,
the proposed action merely states the
EPA’s current interpretation of the
statutory requirements of the CAA. To
the extent that the EPA proposes to
issue a SIP call to a state under CAA
section 110(k)(5), the EPA is only
proposing an action that requires the
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
determining, among other things, which
of the several lawful approaches to the
treatment of excess emissions during
SSM events will be applied to particular
sources. We continue to be interested in
the potential impacts of the proposed
rule on small entities and welcome
comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
This rule 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.
The action may impose a duty on
certain state governments to meet their
existing obligations to revise their SIPs
to comply with CAA requirements. The
direct costs of this action on states
would be those associated with
preparation and submission of a SIP
revision by those states for which the
EPA issues a SIP call. 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.
These aggregate costs would be far less
than the $100-million threshold in any
one year. Thus, this rule is not subject
to the requirements of sections 202 or
205 of UMRA.
This rule is also not subject to the
requirements of section 203 of UMRA
small governmental jurisdiction that is a
government of a city, county, town, school district
or special district with a population of less than
50,000; or (3) a small organization that is any notfor-profit enterprise that is independently owned
and operated and is not dominant in its field.
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because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. The
regulatory requirements of this action
would apply to the states for which the
EPA issues a SIP call. To the extent that
such 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 would not significantly or
uniquely affect small governments
because those governments have already
undertaken the obligation to comply
with the CAA.
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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, as specified in
Executive Order 13132, because it will
simply maintain the relationship and
the distribution of power between the
EPA and the states as established by the
CAA. The proposed SIP calls are
required by the CAA because the EPA
is proposing to find that the current SIPs
of the affected states are substantially
inadequate to meet fundamental CAA
requirements. In addition, the effects on
the states will not be substantial because
where a SIP call is finalized for a state,
the SIP call will require the affected
state to submit only those revisions
necessary to address the SIP
deficiencies and applicable CAA
requirements. While this action may
impose direct effects on the states, the
expenditures would not be substantial
because they would be far less than $25
million in the aggregate in any one year.
Thus, Executive Order 13132 does not
apply to this action.
In the spirit of Executive Order 13132,
and consistent with the EPA’s policy to
promote communications between the
EPA and state and local governments,
the EPA specifically solicits comment
on this SNPR from state and local
officials.
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). 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. However, the EPA
invites comment on this SNPR from
tribal officials.
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G. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
The EPA interprets EO 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because it merely prescribes
the EPA’s action for states regarding
their obligations for SIPs under the
CAA.
H. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This action is not a ‘‘significant
energy action’’ as defined in Executive
Order 13211 (66 FR 28355 (May 22,
2001)), 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
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. NTTAA directs the
EPA to provide Congress, through OMB,
explanations when the EPA decides not
to use available and applicable
voluntary consensus standards.
This proposed rulemaking does not
involve technical standards. Therefore,
the EPA is not considering the use of
any voluntary consensus standards.
J. Executive Order 12898—Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
Feb. 16, 1994) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
PO 00000
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Fmt 4701
Sfmt 4702
55955
environmental effects of their programs,
policies and activities on minority
populations and low-income
populations in the U.S.
The EPA has determined that this
SNPR will not have disproportionately
high and adverse human health or
environmental effects on minority or
low-income populations because it
increases the level of environmental
protection for all affected populations
without having any disproportionately
high and adverse human health or
environmental effects on any
population, including any minority or
low-income population. The rule 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
proposed 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 SNPR would require
17 states to bring their treatment of
these emissions into line with CAA
requirements, which would lead to
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. Judicial Review
Section 307(b)(1) of the CAA indicates
which Federal Courts of Appeal have
venue for petitions of review of final
agency actions by the EPA under the
CAA. This section provides, in part, that
petitions for review must be filed in the
U.S. Court of Appeals for the District of
Columbia Circuit (i) when the agency
action consists of ‘‘nationally applicable
regulations promulgated, or final actions
taken, by the Administrator’’ or (ii)
when such action is locally or regionally
applicable, if ‘‘such action is based on
a determination of nationwide scope or
effect and if in taking such action the
Administrator finds and publishes that
such action is based on such a
determination.’’
This rule responding to the Petition is
‘‘nationally applicable’’ within the
meaning of section 307(b)(1). First, the
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Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
rulemaking addresses a Petition that
raises issues that are applicable in all
states and territories in the U.S. For
example, the Petitioner requested that
the EPA revise its SSM Policy with
respect to whether affirmative defense
provisions in SIPs are consistent with
CAA requirements. The EPA’s response
is relevant for all states nationwide.
Second, the rulemaking will address a
Petition that raises issues relevant to
specific existing SIP provisions in states
across the U.S. that are located in each
of the 10 EPA Regions, 10 different
federal circuits and multiple time zones.
Third, the rulemaking addresses a
common core of knowledge and analysis
involved in formulating the decision
and a common interpretation of the
requirements of the CAA being applied
to SIPs in states across the country.
Fourth, the rulemaking, by addressing
issues relevant to appropriate SIP
provisions in one state, may have
precedential impacts upon the SIPs of
other states nationwide. Courts have
found similar rulemaking actions to be
of nationwide scope and effect.69
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
69 See, e.g., State of Texas, et al. v. EPA, 2011 U.S.
App. LEXIS 5654 (5th Cir. 2011) (finding SIP call
to 13 states to be of nationwide scope and effect and
thus transferring the case to the U.S. Court of
VerDate Sep<11>2014
19:18 Sep 16, 2014
Jkt 232001
This determination is appropriate
because in the 1977 CAA Amendments
that revised CAA section 307(b)(1),
Congress noted that the Administrator’s
determination that an action is of
‘‘nationwide scope or effect’’ would be
appropriate for any action that has
‘‘scope or effect beyond a single judicial
circuit.’’ H.R. Rep. No. 95–294 at 323–
324, reprinted in 1977 U.S.C.C.A.N.
1402–03. Here, the scope and effect of
this rulemaking 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 rule 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.
Accordingly, the EPA is proposing to
determine that this will be a rulemaking
of nationwide scope or effect.
In addition, pursuant to CAA section
307(d)(1)(V), the EPA is determining
that this rulemaking action will be
Appeals for the D.C. Circuit in accordance with
CAA section 307(b)(1)).
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subject to the requirements of section
307(d), which establish procedural
requirements specific to rulemaking
under the CAA.
IX. 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: September 5, 2014.
Janet G. McCabe,
Acting Assistant Administrator.
[FR Doc. 2014–21830 Filed 9–16–14; 8:45 am]
BILLING CODE 6560–50–P
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[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Proposed Rules]
[Pages 55919-55956]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21830]
[[Page 55919]]
Vol. 79
Wednesday,
No. 180
September 17, 2014
Part III
Environmental Protection Agency
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40 CFR Part 52
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 State; Proposed Rule
Federal Register / Vol. 79 , No. 180 / Wednesday, September 17, 2014
/ Proposed Rules
[[Page 55920]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2012-0322; FRL-9914-41-OAR]
RIN 2060-AR68
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
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: In this supplemental notice of proposed rulemaking (SNPR), the
Environmental Protection Agency (EPA) is supplementing and revising
what it previously proposed as its response to a petition for
rulemaking filed by the Sierra Club (the Petition). By notice published
on February 22, 2013, the EPA proposed its response to the Petition's
requests concerning treatment of excess emissions in state rules by
sources during periods of startup, shutdown or malfunction (SSM).
Subsequent to that proposal, a federal court ruled that the Clean Air
Act (CAA or Act) precludes authority of the EPA to create affirmative
defense provisions applicable to private civil suits. As a result, in
this SNPR the EPA is proposing to apply its revised interpretation of
the CAA, but only with respect to affirmative defense provisions in
state implementation plans (SIPs). For specific affirmative defense
provisions identified in the Petition, we are revising the basis for
the proposed findings of substantial inadequacy and SIP calls or
proposing new findings of substantial inadequacy and SIP calls. For
specific provisions that the EPA has independently identified,
including SIP provisions in states not included in the February 2013
proposal notice, we are proposing new findings and SIP calls.
DATES: Comments. Comments must be received on or before November 6,
2014.
Public Hearing. The EPA will hold a public hearing on this SNPR on
October 7, 2014, in Washington, DC.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2012-0322, by one of the following methods:
https://www.regulations.gov: Follow the online instructions
for submitting comments.
Email: a-and-r-docket@epa.gov.
Fax: (202) 566-9744.
Mail: Attention Docket ID No. EPA-HQ-OAR-2012-0322, U.S.
Environmental Protection Agency, EPA Docket Center, Air Docket, Mail
Code 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Please
include a total of two copies.
Hand Delivery: U.S. Environmental Protection Agency, EPA
Docket Center, William Jefferson Clinton West Building, Room 3334, 1301
Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No.
EPA-HQ-OAR-2012-0322. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2012-0322. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at https://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through https://www.regulations.gov or email. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means the EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an email comment directly to the EPA
without going through https://www.regulations.gov, your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the Internet. If
you submit an electronic comment, the EPA recommends that you include
your name and other contact information in the body of your comment and
with any CD you submit. If the EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, avoid any form of encryption and
be free of any defects or viruses. For additional information about the
EPA's public docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on
submitting comments, go to section I.C of the SUPPLEMENTARY INFORMATION
section of this document.
Docket. All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI 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 https://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 Air
Docket is (202) 566-1742.
Public Hearing: A public hearing will be held on October 7, 2014,
at the William Jefferson Clinton West Building, Room 1117B, 1301
Constitution Avenue, Washington, DC 20460. The public hearing will
convene at 9 a.m. (Eastern Standard Time) and continue until the
earlier of 6 p.m. or 1 hour after the last registered speaker has
spoken. People interested in presenting oral testimony or inquiring as
to whether a hearing is to be held should contact Ms. Pamela Long, Air
Quality Planning Division, Office of Air Quality Planning and Standards
(C504-01), U.S. Environmental Protection Agency, Research Triangle
Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-5509,
email address long.pam@epa.gov, at least 5 days in advance of the
public hearing (see DATES). People interested in attending the public
hearing must also call Ms. Long to verify the time, date and location
of the hearing. The public hearing will provide interested parties the
opportunity to present data, views or arguments concerning the proposed
action (i.e., this SNPR specific to affirmative defense provisions in
SIPs). The EPA will make every effort to accommodate all speakers who
arrive and register. A lunch break is scheduled from 12:30 p.m. until 2
p.m. Because this hearing is being held at U.S. government facilities,
individuals planning to attend the hearing should be prepared to show
valid picture identification to the security staff in order to gain
access to the meeting room. Please note that the REAL ID Act, passed by
Congress in 2005, established
[[Page 55921]]
new requirements for entering federal facilities. These requirements
took effect July 21, 2014. If your driver's license is issued by
Alaska, American Samoa, Arizona, Kentucky, Louisiana, Maine,
Massachusetts, Minnesota, Montana, New York, Oklahoma or the state of
Washington, you must present an additional form of identification to
enter the federal building where the public hearing will be held.
Acceptable alternative forms of identification include: Federal
employee badges, passports, enhanced driver's licenses, and military
identification cards. In addition, you will need to obtain a property
pass for any personal belongings you bring with you. Upon leaving the
building, you will be required to return this property pass to the
security desk. No large signs will be allowed in the building, cameras
may only be used outside of the building and demonstrations will not be
allowed on federal property for security reasons. The EPA may ask
clarifying questions during the oral presentations but will not respond
to the presentations at that time. Written statements and supporting
information submitted during the comment period will be considered with
the same weight as oral comments and supporting information presented
at the public hearing. Written comments on the proposed rule must be
received by November 6, 2014. Commenters should notify Ms. Long if they
will need specific equipment, or if there are other special needs
related to providing comments at the hearing. The EPA will provide
equipment for commenters to show overhead slides or make computerized
slide presentations if we receive special requests in advance. Oral
testimony will be limited to 5 minutes for each commenter. The EPA
encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email or CD) or in hard copy form. The
hearing schedule, including lists of speakers, will be posted on the
EPA's Web site at https://www.epa.gov/air/urbanair/sipstatus/. Verbatim
transcripts of the hearings and written statements will be included in
the docket for the rulemaking. The EPA will make every effort to follow
the schedule as closely as possible on the day of the hearing; however,
please plan for the hearing to run either ahead of schedule or behind
schedule.
FOR FURTHER INFORMATION CONTACT: Questions concerning this SNPR should
be addressed to 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: sutton.lisa@epa.gov.
If you have questions concerning the public hearing, please contact
Ms. Pamela Long, U.S. Environmental Protection Agency, Office of Air
Quality Planning and Standards, Air Quality Planning Division (C504-
01), Research Triangle Park, NC 27711, telephone (919) 541-0641, fax
number (919) 541-5509, email address: long.pam@epa.gov (preferred
method for registering).
SUPPLEMENTARY INFORMATION: For questions related to a specific SIP,
please contact the appropriate EPA Regional Office:
------------------------------------------------------------------------
Contact for regional
office (person, mailing
EPA Regional office address, telephone State
number)
------------------------------------------------------------------------
I.................. Alison Simcox, Connecticut,
Environmental Scientist, Massachusetts, Maine,
EPA Region 1, 5 Post New Hampshire, Rhode
Office Square, Suite Island and Vermont.
100, Boston, MA 02109-
3912, (617) 918-1684.
II................. Paul Truchan, EPA Region New Jersey, New York,
2, 290 Broadway, 25th Puerto Rico and Virgin
Floor, New York, NY Islands.
10007-1866, (212) 637-
3711.
III................ Amy Johansen, EPA Region District of Columbia,
3, 1650 Arch Street, Delaware, Maryland,
Philadelphia, PA 19103- Pennsylvania, Virginia
2029, (215) 814-2156. and West Virginia.
IV................. Joel Huey, EPA Region 4, Alabama, Florida,
Atlanta Federal Center, Georgia, Kentucky,
61 Forsyth Street SW., Mississippi, North
Atlanta, GA 30303-8960, Carolina, South
(404) 562-9104. Carolina and Tennessee.
V.................. Christos Panos, 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) 353-8328.
VI................. Alan Shar (6PD-L), EPA Arkansas, Louisiana, New
Region 6, Fountain Place Mexico, Oklahoma and
12th Floor, Suite 1200, Texas.
1445 Ross Avenue,
Dallas, TX 75202-2733,
(214) 665-6691.
VII................ Lachala Kemp, EPA Region Iowa, Kansas, Missouri
7, Air Planning and and Nebraska.
Development Branch,
11201 Renner Boulevard,
Lenexa, KS 66219, (913)
551-7214. Alternate
contact is Ward Burns,
(913) 551-7960.
VIII............... Adam Clark, Air Quality Colorado, Montana, North
Planning Unit (8P-AR) Dakota, South Dakota,
Air Program, Office of Utah and Wyoming.
Partnership and
Regulatory Assistance,
EPA Region 8, 1595
Wynkoop Street, Denver,
CO 80202-1129, (303) 312-
7104.
IX................. Lisa Tharp, EPA Region 9, Arizona, California,
Air Division, 75 Hawaii, Nevada and the
Hawthorne Street (AIR- Pacific Islands.
8), San Francisco, CA
94105, (415) 947-4142.
X.................. Donna Deneen, Alaska, Idaho, Oregon
Environmental Engineer, and Washington.
Office of Air, Waste and
Toxics (AWT-107), EPA
Region 10, 1200 Sixth
Avenue, Suite 900,
Seattle, WA 98101, (206)
553-6706.
------------------------------------------------------------------------
I. General Information
A. Does this action apply to me?
Entities potentially affected by this rule 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\
[[Page 55922]]
The EPA's action on the Petition is potentially of interest to all such
entities because the EPA is evaluating issues related to basic CAA
requirements for SIPs. 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, in the final action based on this supplemental
proposal, the EPA may find specific SIP provisions in states identified
either in the Petition or by the EPA independently to be substantially
inadequate to meet CAA requirements, pursuant to CAA section 110(k)(5),
and thus those states will potentially be affected by this rulemaking
directly.\2\ For example, if 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 may determine that the SIP
provision is substantially inadequate because the provision is
inconsistent with fundamental requirements of the CAA. This rule may
also be of interest to the public and to owners and operators of
industrial facilities that are subject to emission limits in SIPs,
because it may require changes to state rules applicable to excess
emissions. When finalized, this action will embody the EPA's updated
SSM Policy for all SIP provisions relevant to excess emissions during
SSM events.
---------------------------------------------------------------------------
\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 the EPA regulations, a tribe may, but is not required to, apply
for eligibility to have a tribal implementation plan (TIP). For
convenience, we refer 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. The
EPA notes that the petition under evaluation does not identify any
specific provisions related to tribal implementation plans. We
therefore refer to ``state'' or ``states'' rather than ``air
agency'' or ``air agencies'' when meaning to refer to one, some or
all of the 39 states identified in the Petition or other states
identified by the EPA in this SNPR. We also use ``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.
\2\ The specific SIPs that include affirmative defense
provisions identified by the EPA independently are listed under
section II.B of this SNPR (see table). Furthermore, in comments
received on the February 2013 proposal notice, a commenter brought
to the EPA's attention one affirmative defense provision in a SIP,
that of Texas. In the rulemaking docket, the comment letter may be
found at EPA-HQ-OAR-2012-0322-0621.
---------------------------------------------------------------------------
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 SNPR will be available on the World Wide Web. Following signature
by the EPA Assistant Administrator, a copy of this SNPR will be posted
on the EPA's Web site, under ``State Implementation Plans to Address
Emissions During Startup, Shutdown and Malfunction,'' at https://www.epa.gov/air/urbanair/sipstatus. In addition to this notice, other
relevant documents are located in the docket, including a copy of the
Petition and a copy of the February 2013 proposal notice.
C. What should I consider as I prepare my comments?
1. Submitting CBI. Do not submit this information to the EPA
through https://www.regulations.gov or email. Clearly mark the part or
all of the information that you claim to be CBI. For CBI information in
a CD that you mail to the EPA, mark the outside of the CD as CBI and
then identify electronically within the CD the specific information
that is claimed as CBI. In addition to one complete version of the
comment that includes information claimed as CBI, a copy of the comment
that does not contain the information claimed as CBI must be submitted
for inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2. Send or deliver information identified as CBI only to the following
address: Roberto Morales, OAQPS Document Control Officer (C404-02),
U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No.
EPA-HQ-OAR-2012-0322.
2. Tips for preparing your comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
D. 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. What should I consider as I prepare my comments?
D. How is the preamble organized?
E. What is the meaning of key terms used in this notice?
II. Overview of This SNPR
A. How does this notice supplement or revise the EPA's already
proposed rulemaking to respond to the Petition?
B. To which air agencies does this SNPR apply and why?
C. What is the EPA proposing for any state that receives a
finding of substantial inadequacy and a SIP call?
D. What are potential impacts on affected states and sources?
III. Background for This SNPR
A. What did the Petitioner request?
B. What did the EPA previously propose in this rulemaking with
respect to affirmative defense provisions in SIPs?
C. What events necessitated this SNPR?
IV. What is the EPA proposing through this SNPR in response to the
Petitioner's request for rescission of the EPA policy on affirmative
defense provisions?
A. Petitioner's Request
B. The EPA's Proposed Revised Response
V. Revised SSM Policy on Affirmative Defense Provisions in SIPs
VI. Legal Authority, Process and Timing for SIP Calls
VII. What is the EPA proposing through this SNPR for each of the
specific affirmative defense provisions identified in the Petition
or identified independently by the EPA?
A. Overview of the EPA's Evaluation of Specific Affirmative
Defense SIP Provisions
B. Affected States in EPA Region III
1. District of Columbia
2. Virginia
3. West Virginia
C. Affected States in EPA Region IV
1. Georgia
2. Mississippi
3. South Carolina
D. Affected States in EPA Region V
1. Illinois
2. Indiana
3. Michigan
E. Affected States and Local Jurisdictions in EPA Region VI
1. Arkansas
2. New Mexico
3. New Mexico: Albuquerque-Bernalillo County
4. Texas
F. Affected State in EPA Region VIII: Colorado
1. Petitioner's Analysis
2. The EPA's Prior Proposal
3. The EPA's Revised Proposal
G. Affected States and Local Jurisdictions in EPA Region IX
1. Arizona
2. Arizona: Maricopa County
3. California: Eastern Kern Air Pollution Control District
4. California: Imperial County Air Pollution Control District
5. California: San Joaquin Valley Air Pollution Control District
[[Page 55923]]
H. Affected States and Local Jurisdictions in EPA Region X
1. Alaska
2. Washington
3. Washington: Energy Facility Site Evaluation Council
4. Washington: Southwest Clean Air Agency
VIII. 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
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
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
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
L. Judicial Review
IX. Statutory Authority
E. What is the meaning of key terms used in this notice?
For the purpose of this notice, 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 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 applicable emission
limitations or control measures, or to excuse noncompliance with
applicable emission limitations or control measures, which would be
binding on EPA and the public, in spite of SIP provisions that would
otherwise render such conduct by the source a violation.
The term EPA refers to the United States Environmental Protection
Agency.
The term excess emissions means the emissions of air pollutants
from a source that exceed any applicable SIP emission limitations.
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 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 shutdown means, generally, the cessation of operation of a
source for any reason.
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 notice,
statements about SIPs in general would also apply to tribal
implementation plans in general even though not explicitly noted.
The term SNPR means or refers to this supplemental notice of
proposed rulemaking.
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 SSM Policy refers to the cumulative guidance that the EPA
has issued concerning its interpretation of CAA requirements with
respect to treatment of excess emissions during periods of startup,
shutdown and malfunction at a source. The most comprehensive statement
of the EPA's SSM Policy prior to this proposed rulemaking is embodied
in a 1999 guidance document discussed in more detail in this proposal.
This specific guidance document is referred to as the 1999 SSM
Guidance. When finalized, this action will embody the EPA's updated SSM
Policy for all SIP provisions relevant to excess emissions during SSM
events.
The term startup means, generally, the setting in operation of a
source for any reason.
II. Overview of This SNPR
A. How does this notice supplement or revise the EPA's already proposed
rulemaking to respond to the Petition?
By notice published on February 22, 2013 (78 FR 12459), we proposed
to take action on a petition for rulemaking that the Sierra Club (the
Petitioner) filed with the EPA Administrator on June 30, 2011 (the
Petition). In that February 2013 proposal notice, we described and
proposed the EPA's response to each of the Petition's three
interrelated requests concerning the treatment of excess emissions from
sources during periods of SSM in provisions in SIPs. Among other
requests, the Petitioner requested that the EPA rescind its SSM Policy
element interpreting the CAA to allow SIPs to include affirmative
defense provisions for violations due to excess emissions during any
type of SSM events because the Petitioner contended there is no legal
basis for such provisions in SIPs.
In this SNPR, we are supplementing and revising what we earlier
proposed as our response to the Petitioner's requests, but only to the
extent the requests narrowly concern affirmative defense provisions in
SIPs. We are not revising or seeking further comment on any other
aspects of the February 2013 proposed action.
[[Page 55924]]
First, based on reexamination of statutory requirements in light of
a recent court decision, we are revising our interpretation of the CAA
concerning the issue of affirmative defense provisions in SIPs.
Accordingly we propose to grant the Petitioner's overarching request
that the EPA rescind its SSM Policy element that interpreted the CAA to
allow affirmative defense provisions in SIPs. Our proposal to grant the
Petition and to rescind our SSM Policy with respect to allowing
affirmative defenses in SIPs is a revision of the position we
previously proposed in the February 2013 proposal notice (i.e., to
grant in part and to deny in part the Petition on this request). The
basis for our proposed revision of the SSM Policy with respect to
affirmative defense provisions in SIPs and our revised response to the
Petition on this issue is provided in more detail in section IV of this
SNPR.
Second, we propose to grant the Petitioner's request that the EPA
apply a revised interpretation to, and effectuate the removal of,
specific existing affirmative defense provisions in SIPs identified by
the Petitioner as inconsistent with the CAA. Accordingly, we propose to
grant the Petition with respect to specific existing affirmative
defense provisions in the SIPs of 13 states. For all 13 of these
states, we have already proposed SIP calls for one or more SIP
provisions in our February 2013 proposal notice, but note that we did
not at that time propose SIP calls for all affirmative defense
provisions in those states because some of the provisions appeared to
comply with our policy at the time of the proposal. What we are
proposing in this SNPR is to grant the Petition with respect to all of
the identified affirmative defenses in these states.
Third, in addition to the specific affirmative defense provisions
identified by the Petitioner, the EPA has independently identified
other affirmative defense provisions in SIPs and is proposing in this
SNPR to take action with respect to these SIP provisions as well. The
newly identified affirmative defense provisions are found in six
states' SIPs. For two of the states whose SIPs include newly identified
affirmative defense provisions, California and Texas, we did not
propose a SIP call in the February 2013 proposal notice, as those
states were not identified in the Petition. For the other four states
(New Mexico, South Carolina, Washington and West Virginia), we did
propose a SIP call in the February 2013 proposal notice for one or more
SIP provisions, but at that time we did not propose a SIP call for all
affirmative defense provisions identified in the Petition or for any
affirmative defense provisions that were not identified in the
Petition. The EPA is now including 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 court decisions relevant to such
provisions under the CAA. Section VII of this SNPR presents the EPA's
analysis of each of the affirmative defense SIP provisions at issue.
Fourth, for each of the states where the EPA proposes to grant the
Petition concerning specific affirmative defense provisions or to take
action on such provisions that EPA has independently identified, the
Agency also proposes to find that the existing SIP provision at issue
is substantially inadequate to meet CAA requirements and thus under CAA
authority proposes to issue a ``SIP call'' with respect to that SIP
provision. For those states for which the EPA promulgates a final
finding of substantial inadequacy and a SIP call, the EPA has in the
February 2013 notice proposed a schedule allowing the states 18 months
within which to submit a corrective SIP revision. In section II.C of
this SNPR, the EPA accordingly proposes that this schedule apply to all
SIP provisions identified as substantially inadequate in this
supplemental proposal.
What EPA proposes in this SNPR supersedes the February 2013
proposal only insofar as the SNPR supplements or revises the February
2013 proposal notice with respect to the issues related to affirmative
defense provisions in SIPs. After evaluation of public comment on this
SNPR, the EPA intends to complete its action on the Petition in one
final action, addressing together the issues discussed in the February
2013 proposal notice and in this SNPR.
This action provides the EPA an opportunity to invite public
comment on our SSM Policy specific to affirmative defenses. In this
SNPR, the EPA is supplementing and revising its proposed responses to
the issues in the Petition only to the extent they concern affirmative
defenses in SIPs, and the EPA solicits comment on its proposed
responses. We note that an opportunity to comment on the EPA's proposed
responses to other issues raised in the Petition was provided earlier,
in the comment period initiated by our February 2013 proposal notice.
Therefore, comments received on this SNPR will be considered germane
only to the extent they pertain specifically to the subject of
affirmative defenses in SIPs. The EPA does not intend to consider any
further comments related to other aspects of the prior proposal, as
those other aspects are not being reopened in this supplemental
proposal. Moreover, because the EPA's interpretation of the CAA with
respect to the legal basis for affirmative defense provisions in SIPs
has changed, the EPA does not intend to respond to comments previously
submitted on the February 2013 proposal notice to the extent they apply
to issues related to affirmative defense provisions in SIPs generally,
or to issues related to specific affirmative defense provisions
identified by the Petitioner, as those comments will be moot if the EPA
finalizes its action as discussed in this SNPR.
Through our proposed rulemaking action, which includes the February
2013 proposal notice and this SNPR, the EPA is clarifying, restating
and revising its SSM Policy. When finalized, this action will embody
the EPA's updated SSM Policy for all SIP provisions relevant to excess
emissions during SSM events. The final action will also clarify for the
affected states how they can resolve the identified deficiencies in
their SIPs, as well as provide all air agencies guidance on SSM issues
as they further develop their SIPs in the future.
B. To which air agencies does this SNPR apply and why?
In general, the EPA's action on the Petition in this rulemaking may
be of interest to all air agencies because the EPA is significantly
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 startup, shutdown and malfunction.
For example, the EPA is proposing in this SNPR to grant the
Petitioner's request that the EPA rescind its interpretation of the CAA
that would allow affirmative defense provisions in SIPs.
More specifically, this SNPR is directly relevant to the states for
which we are now proposing SIP calls on the basis that those SIP
provisions are inconsistent with CAA requirements because they include
affirmative defenses. The EPA is proposing SIP calls with respect to
affirmative defense SIP provisions in each of the 17 states (for
provisions applicable in 23 statewide and local jurisdictions \3\ and
[[Page 55925]]
no tribal areas) that show either ``Grant'' or ``SIP call'' as the
proposed action under table 1, ``List of States With Affirmative
Defense SIP Provisions for Which the EPA Proposes to Grant the Petition
or to Address Such Provisions Identified by the EPA.''
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\3\ 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 Affirmative Defense Provisions for
Which the EPA Proposes To Grant the Petition or To Address Such
Provisions Identified by the EPA
------------------------------------------------------------------------
Proposed action \a\ with respect to
affirmative defenses applicable
-------------------------------------------
EPA region State . . . for startup,
. . . for shutdown or other
malfunctions? modes?
------------------------------------------------------------------------
III........ District of Grant............... Not applicable.
Columbia.
Virginia....... Grant............... Not applicable.
West Virginia.. SIP call (new)...... Not applicable.
IV......... Georgia........ Grant............... Grant.
Mississippi.... Grant............... Grant.
South Carolina. SIP call (new)...... Not applicable.
V.......... Illinois....... Grant............... Not applicable.
Indiana........ Grant............... Not applicable.
Michigan....... Not applicable...... Grant.
VI......... Arkansas....... Grant............... Not applicable.
New Mexico..... Grant (for state) Grant (for state)
and SIP call (new and SIP call (new
for Albuquerque- for Albuquerque-
Bernalillo County). Bernalillo County).
Texas.......... SIP call (new)...... Not applicable.
VIII....... Colorado....... Grant (change from Grant.
February 2013
proposal to Deny).
IX......... Arizona........ Grant (for state and Grant (for state and
for Maricopa for Maricopa
County; change from County).
February 2013
proposal to Deny).
California..... SIP call (new for Not applicable.
Eastern Kern APCD,
new for Imperial
County APCD and new
for San Joaquin
Valley APCD).
X.......... Alaska......... Grant............... Grant.
Washington..... Grant (for state) Grant (for state)
and SIP call (new and SIP call (new
for Energy Facility for Energy Facility
Site Evaluation Site Evaluation
Council and new for Council and new for
Southwest Clean Air Southwest Clean Air
Agency). Agency).
------------------------------------------------------------------------
\a\ The proposed action under the SNPR is the same action as proposed in
February 2013 unless noted in this table to be either new or a change.
The entry ``SIP call'' indicates that the affirmative defense
provision was identified by the EPA independently and was not included
in the Petition.
For each state for which the proposed action in this SNPR is either
``Grant'' or ``SIP call,'' the EPA proposes to find that specific
affirmative defense provisions in the state's SIP are substantially
inadequate to meet CAA requirements for the reason that these
provisions are inconsistent with the CAA.
For each state for which the proposed action on the Petition is
either ``Grant'' or ``SIP call,'' the EPA is further proposing in this
SNPR to call for a SIP revision as necessary to remove the identified
affirmative defense provisions from the SIP at issue. The EPA's revised
proposal under this SNPR concerning affirmative defense provisions in
specific states' SIPs is summarized in section VII of this SNPR.
The SIP calls proposed in this SNPR apply only to those specific
provisions, and the scope of each of the SIP calls would be limited to
those provisions. This SNPR proposes SIP calls specific to affirmative
defense provisions in 17 states. The 17 states include two states for
which we are newly proposing SIP calls: California and Texas. For the
remaining 15 states, we already proposed SIP calls in the February 2013
proposal notice for one or more SSM-related provisions, although in
this SNPR we are in some cases proposing SIP calls for additional
affirmative defense provisions and in some cases proposing SIP calls on
a basis that has changed from that of our earlier proposal.
For Jefferson County, Kentucky, the affirmative defense provisions
for which we proposed in February 2013 to grant the Petition were
subsequently removed from the SIP.\4\ Thus, under this SNPR we are
proposing instead to deny the Petition, and we are no longer proposing
a SIP call with respect to affirmative defense provisions for this area
because the revision has already been made by the state and approved
into the SIP by the EPA. Note, however, that we already proposed a SIP
call for Kentucky, for other provisions (i.e., provisions not
concerning affirmative defenses in Jefferson County), and this SNPR
does not change what we proposed in the February 2013 proposal notice
for the other Kentucky SIP provisions.
---------------------------------------------------------------------------
\4\ 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).
---------------------------------------------------------------------------
C. What is the EPA proposing for any state that receives a finding of
substantial inadequacy and a SIP call?
If the EPA finalizes a finding of substantial inadequacy and issues
a SIP call for any state, the EPA's final action will establish a
deadline by which the state must make a SIP submission to rectify the
deficiency. Pursuant to CAA section 110(k)(5), the EPA has authority to
set a SIP submission deadline that does not exceed 18 months from the
date the Agency notifies the state of the inadequacy. The EPA intends
to disseminate notice of any final findings of substantial inadequacy
and the issuance of any SIP call promptly after the Administrator signs
the final notice.
The EPA has already proposed to provide the full 18-month period
[[Page 55926]]
permissible by statute to give states 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.
Accordingly, the EPA is proposing to establish the due date for the
state to respond to the SIP call to be 18 months after the date on
which the Administrator signs the notice and disseminates it to the
states. If, for example, the EPA's final findings are signed and
disseminated in May 2015, then the SIP submission deadline for each of
the states subject to the final SIP call would fall 18 months later, in
November 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, in notice-and-comment rulemaking on the individual SIP
submissions.
D. What are potential impacts on affected states and sources?
The EPA's February 2013 proposal notice included an explanation of
the potential impacts on states and sources of the SIP calls proposed
in that notice. That explanation is repeated here, with additions to
encompass and highlight the potential impacts of the proposed further
revision of the SSM Policy to disallow affirmative defense provisions
for malfunctions, the proposed revisions to the earlier-proposed SIP
calls and the additional SIP calls proposed in this notice. The
issuance of a SIP call would require an affected state to take one or
more actions to revise its SIP. These actions are described below,
followed by a description of how those actions by the state may, in
turn, affect sources. The states that would receive a SIP call 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. The EPA's interpretation of those requirements
will be embodied in the revised SSM Policy, which will be stated in the
Federal Register notice for the final action in this rulemaking.
If the final SIP call identifies an automatic exemption provision
in a SIP as contrary to the CAA, that provision would have to be
removed entirely. An affected source could no longer depend on the
automatic exemption to avoid all liability for excess emissions. If the
final SIP call identifies an affirmative defense provision in a SIP as
contrary to the CAA, that provision would have to be removed entirely.
An affected source could no longer depend on the affirmative defense to
shield it from monetary penalties assessed by a court for excess
emissions; however, even in the absence of such affirmative defense
provision in the SIP, a court may nevertheless decide not to assess
monetary penalties in light of the effort by the source to avoid and/or
minimize the excess emissions. Some other provisions, for example a
problematic enforcement discretion provision, could be either removed
entirely from the SIP or retained if revised appropriately in
accordance with the EPA's interpretation of the CAA as described in the
EPA's SSM Policy restatement in the Federal Register notice for the
final rulemaking. The EPA notes that if a state removes a SIP-called
provision that pertains to the exercise of enforcement discretion
rather than amending the provision to remove any implication that the
provision limits EPA or citizen suits, this removal would not bar the
ability of the state to apply discretion in its own enforcement program
but rather would make the exercise of such discretion case-by-case in
nature.
In addition, affected states may choose to consider reassessing
particular emission limitations, for example to determine whether those
limits 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. Such a
revision of an emission limitation may need to be submitted as a SIP
revision for EPA approval if the existing limit to be changed is
already included in the SIP or if the existing SIP relies on the
particular existing emission limit 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 the aspect of
the existing 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 decisions it may make 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 recognizes that after all the responsive SIP
revisions are in place and are being implemented by the states, some
sources may be required by the state to, or may have strong business
reasons to, modify their physical equipment or operating practices.
These changes could be aimed at improving the effectiveness of the
emission control systems when operating as designed during startup and
shutdown, increasing the durability of components to reduce the
occurrence of malfunctions, and/or improving monitoring systems to
detect and manage malfunctions promptly. If a state merely removes an
exemption, affirmative defense provision, or impermissible enforcement
discretion provision, an affected source may need to, or may rationally
choose to, make changes of these types to better control emissions so
as to comply with existing emission limits continuously and thereby
reduce the risk of enforcement action. If the state establishes
alternative emission limits for startup and shutdown operation, the
source will need to meet these limits, but the required changes by the
source, if any, could be less extensive and cost less.
Because of the diversity of the SIP provisions identified in our
February 2013 proposal notice and in this supplemental proposal, the
diversity of potentially affected sources, the unknown nature of the
states' responses to the SIP calls, and the fact that because of
existing automatic exemptions many instances of excess emissions have
not routinely been reported to air agencies or the EPA, the EPA is
unable to estimate the number, nature and overall cost of the changes
that emission sources may ultimately make as an indirect result of the
proposed SIP calls. To date, the EPA's review of the public comments
received on the February 2013 proposal indicates that the information
in those public comments is insufficient to allow the EPA to make such
estimates.
This supplemental proposal concerns only affirmative defense
provisions. The EPA's longstanding interpretation of the CAA as
reflected in the existing SSM Policy does not allow a SIP to contain a
director's discretion provision for excess emissions during SSM events
including malfunctions, an automatic exemption for excess emissions
during SSM events including malfunctions, or an enforcement discretion
provision that purports to restrict citizen suits or federal personnel.
The EPA is not
[[Page 55927]]
proposing to change those longstanding aspects of the SSM Policy. In
our February 2013 proposal notice, we proposed to interpret the CAA to
disallow affirmative defense provisions applicable to startup and
shutdown, and in this SNPR we are proposing to interpret the CAA to
further disallow affirmative defense provisions applicable to
malfunctions. However, a state that receives a SIP call that includes a
requirement to remove an affirmative defense for excess emissions would
retain its ability to apply discretion in its enforcement program. Such
enforcement discretion could be exercised case-by-case, or the SIP may
include a provision that directs state personnel in the exercise of
enforcement discretion. The criteria in an enforcement discretion
provision could resemble the criteria previously recommended by the EPA
for an affirmative defense provision for malfunctions. The enforcement
discretion provision cannot apply to anyone other than state personnel.
For example, the enforcement decisions of state personnel cannot define
what is or is not a violation and cannot purport to limit or bar the
exercise of enforcement discretion by the EPA or other parties pursuant
to the citizen suit provision. An affected state could include an
appropriate enforcement discretion provision in the same SIP submission
that addresses the SSM provisions identified in the SIP call, or it
could submit it separately.
Similar to the dependent nature of the potential impacts of our
proposals in the aggregate as described above, the implications of the
specific change being proposed in this notice--to disallow affirmative
defense provisions for malfunctions--for a regulated source in a given
state, in terms of whether and how the source would potentially have
incentives to change its equipment or practices, will depend on the
nature and frequency of the source's malfunction events and on how the
state has chosen to revise the SIP to address excess emissions during
malfunction events. After responsive SIP revisions are in place and are
being implemented by the states, some sources may have strong
incentives to take steps to increase the durability of components and
monitoring systems to detect and manage malfunctions promptly, as a
court may take such steps into consideration when determining a remedy
should there be an enforcement action against excess emissions that
have occurred during a malfunction. For the same reasons as cited
above, the EPA is unable to estimate the number, nature and overall
cost of the changes that emission sources may ultimately make as an
indirect result of the revised and additional SIP calls proposed in
this SNPR.
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 the SIP calls.
The EPA believes that among the impacts on states and their
residents of the SIP calls proposed in the February 2013 proposal
notice and in this SNPR will be reduced aggregate emissions from
industrial sources and improved air quality. For the same reasons that
we are unable to estimate the number, nature and overall cost of the
changes that sources may ultimately make as an indirect result of the
proposed SIP calls, we are unable to estimate the total emission
reduction that will be achieved for any particular pollutant or how
those reductions will be distributed across the affected states and
communities. The EPA believes that it is obligated and authorized to
issue the proposed SIP calls to remove affirmative defense provisions
even though the EPA is unable to estimate the number, nature, cost and
resulting emission reductions that will indirectly result from the
removal of such provisions from the affected SIPs.
III. Background for This SNPR
A. What did the Petitioner request?
The Petitioner submitted the Petition to the EPA on June 30, 2011.
In the Petition, the Petitioner requested that the EPA address various
types of alleged deficiencies in the Agency's SSM Policy. The SSM
Policy provides EPA guidance to states with respect to SIP provisions
that apply to excess emissions from sources that occur during SSM
events. As described in the February 2013 proposal notice, the
Petitioner included three interrelated overarching requests concerning
the treatment in SIPs of excess emissions from sources during SSM
events. In addition, the Petitioner requested that the EPA evaluate
specifically identified existing provisions in the SIPs of 39 states
that the Petitioner alleged are inconsistent with CAA requirements and
with the EPA's interpretations of the CAA in the SSM Policy. The
Petitioner identified the specific provisions and explained the basis
for its belief that the provisions in question violate one or more
requirements of the CAA.
First, the Petitioner argued that any SIP provision providing an
affirmative defense for monetary penalties for excess emissions
applicable in judicial proceedings is contrary to the CAA. The
Petitioner based its overarching arguments concerning the legality of
affirmative defense provisions in SIPs upon the explicit statutory
provisions of CAA sections 113 and 304. 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
affirmative defenses for excess emissions related to startup or
shutdown. See section IV of our February 2013 proposal notice for the
EPA's proposed response at that time concerning the issue of
affirmative defense provisions in SIPs. As explained in section III.B
of this SNPR, the EPA did make such distinction in its proposed
response in the February 2013 proposal notice, then reasoning that
affirmative defense provisions were appropriate for violations due to
malfunction events. The issue of affirmative defense provisions in SIPs
is the focus of this SNPR, and the EPA is herein proposing to revise
its prior proposed action on this issue.
Second, the Petitioner argued that many existing SIPs contain
impermissible provisions,\5\ including automatic exemptions from
applicable emission limitations during SSM events, director's
discretion provisions that 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 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. Among the alleged deficient provisions were many that
function as affirmative defense provisions, regardless of whether that
specific term is used in the state law or regulation at issue and
regardless of whether the EPA
[[Page 55928]]
previously explicitly evaluated the provision as an affirmative defense
as described in the 1999 SSM Guidance. See section V and section IX of
our February 2013 proposal notice for the EPA's prior proposed
responses concerning the various alleged SIP deficiencies; only issues
related to affirmative defense provisions are addressed in this SNPR,
and the EPA is proposing to revise its prior proposed action only with
respect to specific affirmative defense SIP provisions.
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\5\ The term ``impermissible provision'' as used throughout this
SNPR is generally intended to refer to a SIP provision that the EPA
believes to be inconsistent with requirements of the CAA. As
described later in this SNPR (see section VII.A), the EPA is
proposing to find a SIP ``substantially inadequate'' to meet CAA
requirements where the EPA determines that a specific SIP provision
is impermissible under the CAA.
---------------------------------------------------------------------------
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. See section VI of our
February 2013 proposal notice for the EPA's proposed response
concerning the issue of interpretive letters; that issue is not further
addressed in this SNPR and the EPA is seeking no additional comment on
this issue.
Among the fundamental concerns raised by the Petitioner was the
claim that the EPA's SSM Policy is inconsistent with statutory
requirements because the Agency interprets the CAA to authorize states
to create SIP provisions that provide an affirmative defense for
qualifying sources to assert in the event of violations for excess
emissions that occur during SSM events. Even though the EPA interpreted
the CAA to allow narrowly drawn affirmative provisions in SIPs that are
consistent with recommended criteria intended to assure that states
include appropriate limitations and conditions for affirmative
defenses, the Petitioner objected to any such provisions. The
Petitioner argued that any affirmative defense that purports to
eliminate or alter the jurisdiction of federal courts to assess
monetary penalties or any other form of relief for violations of SIP
emission limits is contrary to the requirements of the CAA. In other
words, no matter how narrowly drawn and no matter what the limitations
or conditions for the affirmative defense may be, the Petitioner argued
that no such affirmative defenses are consistent with CAA requirements
for SIP provisions.
In addition, the Petitioner identified specific existing provisions
in the SIPs of 14 states that were structured or characterized as
affirmative defenses, regardless of whether the provisions in question
were consistent with the EPA's SSM Policy as explained in the 1999 SSM
Guidance. The Petitioner contended that none of these identified
provisions are consistent with CAA requirements because they improperly
purport to shield sources from liability for violations of SIP emission
limitations through various mechanisms. The Petitioner argued that such
provisions are therefore inconsistent with sections 113 and 304 and the
fundamental enforcement structure of the CAA created by Congress. Even
if the provisions were not otherwise contrary to CAA requirements, the
Petitioner argued, each of the identified affirmative defense
provisions is also inconsistent in one or more ways with the EPA's own
interpretation of the CAA provided in the 1999 SSM Guidance. For
example, some of the identified provisions do not apply only to
monetary penalties and purport to bar injunctive relief as well, some
of the provisions do not require sources to qualify for an affirmative
defense through criteria comparable to those recommended by the EPA,
and some of the provisions appear to make state personnel the
unilateral final arbiters of whether a source qualified for an
affirmative defense rather than requiring that this be determined by a
trier of fact in a judicial enforcement proceeding, thereby purporting
to preclude enforcement by the EPA under section 113 or by others
pursuant to the citizen suit authority of section 304.
B. What did the EPA previously propose in this rulemaking with respect
to affirmative defense provisions in SIPs?
The EPA published its proposed response to the Petition on February
22, 2013. In that proposal, the EPA explained the claims asserted by
the Petitioner, articulated its evaluation of those claims, and
proposed to take actions with respect to each of the overarching and
specific claims. The proposal addressed a number of interrelated issues
concerning the proper treatment of excess emissions during SSM events
in SIP provisions. A key component of the proposal, however, was the
EPA's evaluation of the Petitioner's claims concerning affirmative
defense provisions in SIPs.
With respect to the Petitioner's overarching claim that the EPA's
interpretation of the CAA in the SSM Policy permitting states to have
affirmative defenses in SIP provisions is in error, the EPA proposed to
deny in part and to grant in part. The EPA proposed to deny the
Petitioner's claim with respect to affirmative defenses applicable to
malfunction events, on the theory that the CAA allows such provisions
so long as they are sufficiently narrowly drawn. The EPA reasoned that
such provisions are appropriate for violations due to genuine
malfunction events, in order to resolve the inherent tension between
the fact that the CAA requires that SIP emission limitations must apply
continuously and the fact that even properly designed, maintained and
operated sources may sometimes have difficulty meeting emission
limitations for reasons beyond their control. By contrast, the EPA
proposed to grant the Petitioner's claim with respect to affirmative
defenses applicable to planned events such as startup and shutdown.
This was a change from the EPA's interpretation of the CAA in the 1999
SSM Guidance, in which the EPA previously recommended that states could
elect to create such affirmative defense provisions for startup and
shutdown events, so long as the provisions were narrowly drawn and
consistent with the recommended criteria to assure that they meet CAA
requirements. The EPA's evaluation of the Petition and the statutory
basis for affirmative defense provisions caused the Agency to
reconsider the appropriateness of affirmative defense provisions
applicable during startup and shutdown, which are ordinary modes of
operation that are generally predictable and within the control of the
source. As explained in more detail in the February 2013 proposal
notice, the EPA's evaluation in light of then recent case law indicated
that providing affirmative defenses applicable during planned events
such as startup and shutdown was not consistent with the EPA's
interpretation of the CAA to support such provisions for malfunctions
and was tantamount to allowing sources to be shielded from monetary
penalties for violations due to conduct that is predictable and within
their control.\6\
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\6\ Some commenters on the February 2013 proposal notice 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 it will at
least occasionally start up and shut down, and thus these modes of
source 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 and which could not have been
precluded by proper source design, maintenance and operation.
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[[Page 55929]]
With respect to the specific affirmative defense provisions
identified by the Petitioner as deficient, the EPA evaluated each of
the provisions to determine whether they were consistent with the EPA's
interpretation of the CAA concerning such provisions at the time. This
evaluation included examination of the specific provisions in light of
the EPA's interpretations of the CAA and recommendations in the 1999
SSM Guidance, as updated in the February 2013 proposal notice (e.g.,
the revision to the EPA's guidance concerning affirmative defenses for
single sources with the potential to cause exceedances of the NAAQS).
As a result, the EPA proposed to deny the Petition with respect to the
claims concerning affirmative defense provisions to the extent
applicable to malfunction events in three jurisdictions: (i) Arizona;
(ii) Maricopa County, Arizona; and (iii) Colorado. The EPA proposed to
deny the Petition with respect to these affirmative defense provisions
to the extent applicable to malfunction events because at that time the
EPA believed them to be consistent with the CAA and EPA guidance in the
1999 SSM Policy. The EPA proposed to grant the Petition with respect to
the claims concerning affirmative defense provisions in the following
jurisdictions: (i) Alaska; (ii) Arizona (affirmative defense for
startup and shutdown only); (iii) Maricopa County, Arizona (affirmative
defense for startup and shutdown only); (iv) Arkansas; (v) Colorado
(affirmative defense for startup and shutdown only); (vi) District of
Columbia; (vii) Illinois; (viii) Indiana; (ix) Jefferson County,
Kentucky; \7\ (x) Michigan; (xi) Mississippi; (xii) New Mexico; (xiii)
Virginia; and (xiv) Washington. The EPA's evaluation of the specific
provisions in these states identified a variety of deficiencies as
explained in more detail in section IX of the February 2013 proposal
notice. In general, the EPA considered these provisions deficient
because they extended not only to monetary penalties but also to
injunctive relief, because they had insufficient criteria to assure
that they were sufficiently narrowly drawn, because they extended to
events that were not malfunctions, or because of some combination of
these concerns.
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\7\ The EPA notes that the state of Kentucky has now revised the
SIP provisions applicable to Jefferson County (Louisville) and
eliminated the SIP inadequacies identified in the February 2013
proposal notice. The EPA has already approved the necessary SIP
revisions. See 79 FR 33101 (June 10, 2014). Accordingly, the EPA's
final action on the Petition will not need to include a finding of
substantial inadequacy and SIP call for Jefferson County, Kentucky.
The recently approved revision did not create an affirmative defense
provision, so there is no need to readdress this issue in this
jurisdiction.
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C. What events necessitated this SNPR?
Subsequent to EPA's issuance of the February 2013 proposal, a
federal court ruled that CAA sections 113 and 304 preclude EPA
authority to create affirmative defense provisions in the Agency's own
regulations imposing emission limits 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 U.S. Court of Appeals for the
District of Columbia Circuit issued that decision in NRDC v. EPA on
April 18, 2014.\8\ 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.
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\8\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
---------------------------------------------------------------------------
The court's decision in NRDC v. EPA \9\ pertained to a challenge to
the EPA's National Emission Standards for Hazardous Air Pollutants
(NESHAP) regulations issued pursuant to CAA section 112 to regulate
hazardous air pollutants from sources that manufacture Portland
cement.\10\ In addition to imposing specific emission limitations for
the relevant pollutants from the affected sources, the EPA also created
an affirmative defense that sources could assert in judicial
enforcement proceedings for violations due to excess emissions that
occur during qualifying malfunction events. 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 and
the source's conduct before, during and after the event. The EPA notes
that 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 explicitly
repeated these same recommended criteria to states in the February 2013
proposal notice. In addition, the EPA provided sample regulatory text
in the February 2013 proposal notice drawn from a comparable NESHAP
that the EPA recently promulgated for another source category, to
illustrate how states might elect to word appropriate affirmative
defense provisions in SIPs.\11\ In other words, the affirmative defense
provision at issue in the NRDC v. EPA case was essentially equivalent
to the type of provision, both conceptually and in terms of specific
regulatory language, which the EPA would previously have considered
consistent with CAA requirements for affirmative defense provisions for
malfunction events in SIPs.
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\9\ Id.
\10\ The NESHAP promulgated after the 1990 CAA Amendments are
also referred to as ``maximum achievable control technology'' or
``MACT'' standards.
\11\ See February 2013 proposal notice, 78 FR 12459 at 12478-80.
---------------------------------------------------------------------------
The EPA believes that the opinion of the court in NRDC v. EPA has
significant impacts on the Agency's SSM Policy and on the positions
that the EPA took in the February 2013 proposal notice with respect to
issues related to affirmative defenses. Section IV of the February 2013
proposal notice describes in detail the EPA's prior evaluation of the
Petition with respect to the overarching issue of affirmative defense
provisions in SIPs. In general, the EPA proposed: (i) To deny the
request to rescind the SSM Policy with respect to interpreting the CAA
to allow states to elect to include appropriately tailored affirmative
defense provisions for violations due to excess emissions during
periods of malfunction; and (ii) to grant the request to rescind the
SSM Policy with respect to affirmative defense provisions for
violations due to excess emissions during periods of startup and
shutdown. Consistent with this interpretation of the CAA, the EPA
previously proposed to revise its SSM Policy to clarify that states
could elect to create affirmative defenses in SIP provisions only for
malfunction events, and so long as such provisions were narrowly drawn,
as recommended in the EPA's guidance. Even these more narrowly defined
affirmative defense provisions are no longer consistent with CAA
requirements under the reasoning adopted by the court in NRDC v. EPA.
In addition, section IX of the February 2013 proposal notice
provided the EPA's evaluation of each of the specific
[[Page 55930]]
SIP provisions identified by the Petitioner and proposed to take action
on them, in accordance with EPA's interpretation of the CAA for such
provisions at that time. These SIP provisions included affirmative
defense provisions of various types, including some that the Agency had
previously approved as consistent with its interpretation of the CAA in
the 1999 SSM Guidance. The EPA evaluated these provisions on a case-by-
case basis and proposed either to grant or to deny the Petition with
respect to each provision, consistent with the EPA's then current
interpretation of the CAA for such provisions.
The recent decision by the U.S. Court of Appeals for the District
of Columbia Circuit in NRDC v. EPA has called into question the legal
basis for affirmative defense provisions applicable to violations of
CAA requirements. The reasoning used by that 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 the federal courts to impose relief for
violations of CAA requirements in SIPs, including the courts' power to
restrain violations, to require compliance, and to assess monetary
penalties for any violations in accordance with factors provided in CAA
section 113(e)(1).
The EPA acknowledges that its SSM Policy since the 1999 SSM
Guidance has interpreted the CAA in such a way that states could in
effect alter the jurisdiction of federal courts to assess monetary
penalties under certain conditions through creation of affirmative
defenses. In other words, even though Congress explicitly empowered
federal courts to assess monetary penalties for a CAA violation, an
affirmative defense could, contrary to the statute, limit the ability
of a court to do so. The EPA believes that the court's decision in NRDC
v. EPA compels the Agency to reevaluate its interpretation of the CAA
and its proposed action on the Petition concerning affirmative defense
provisions in SIPs. As a result, in this SNPR we are revising what we
previously proposed as our response to the Petition, but only to the
extent relevant to the issue of affirmative defense provisions in SIPs.
In section III.C of this SNPR, the EPA explains in detail why the
court's interpretation of relevant CAA provisions indicates that states
do not have authority to create, and thus the EPA does not have
authority to approve, SIP provisions that include an affirmative
defense that would operate to alter the jurisdiction of federal courts
to assess penalties or other forms of relief authorized in sections 113
and 304. In section VII of this SNPR, the EPA explains how the decision
affects the February 2013 proposal with respect to specific provisions
in the SIPs of particular states. In section VII of this SNPR, the EPA
also includes affirmative defense provisions found in six states' SIPs
that the Agency has identified independently, and the EPA explains why
each of these additional provisions fails to meet CAA requirements and
thus necessitates a finding of substantial inadequacy and a SIP call as
well. The EPA is including the additional provisions to assure that it
provides comprehensive guidance with respect to this issue to all
states and to alleviate confusion that may arise as a result of recent
regulatory actions and litigation concerning affirmative defense
provisions.
IV. What is the EPA proposing through this SNPR in response to the
petitioner's request for rescission of the EPA policy on affirmative
defense provisions?
A. Petitioner's Request
The February 2013 proposal notice explained in detail the
Petitioner's claims with respect to affirmative defense provisions in
SIPs, but it is helpful to repeat the full argument here in order to
explain the reasons for the EPA's revised proposal in this SNPR.
Understanding those specific claims in light of the court's decision in
the NRDC v. EPA decision serves to illustrate the need for the EPA to
reexamine the statutory basis for any affirmative defense in SIP
provisions, not merely those provisions limited to malfunction events
or to those for malfunction events that are sufficiently narrowly drawn
to be consistent with the EPA's prior interpretation of the CAA in the
1999 SSM Guidance.
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.\12\ 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.\13\ Alternatively, if the
EPA denies these two related requests, the Petitioner requested 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.\14\ The EPA interpreted this latter request to refer to the
specific SIP provisions that the Petitioner identified in a separate
section of the Petition, titled, ``Analysis of Individual States' SSM
Provisions,'' including specific existing affirmative defense
provisions.
---------------------------------------------------------------------------
\12\ Petition at 11.
\13\ Id.
\14\ Petition at 12.
---------------------------------------------------------------------------
The Petitioner requested that the EPA rescind its SSM Policy
element interpreting the CAA to allow SIPs to include affirmative
defenses for violations due to excess emissions during any type of SSM
events because the Petitioner contended there is no legal basis for the
policy. Specifically, the Petitioner cited to two statutory grounds,
CAA sections 113(b) and (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.
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.'' \15\ The Petitioner first argued that in any
judicial enforcement action in the 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.'' In addition, the Petitioner cited
the provisions of CAA section 304(a), which specifically pertain to
citizen suit enforcement and which reiterate that the federal courts
have jurisdiction to assess monetary penalties for violations as well
as to impose other remedies.\16\ 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 federal
courts to assess monetary penalties for violations if a source is
shielded from monetary penalties under an affirmative defense provision
in the approved SIP.\17\ The Petitioner
[[Page 55931]]
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.'' \18\
---------------------------------------------------------------------------
\15\ Petition at 10.
\16\ Petition at 11.
\17\ Id.
\18\ Id.
---------------------------------------------------------------------------
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.\19\ That section provides that either the
Administrator or the court:
---------------------------------------------------------------------------
\19\ Id.
. . . shall take into consideration (in addition to such other
factors as justice may require) the size of the business, the
economic impact of the penalty on the business, the violator's full
compliance history and good faith efforts to comply, the duration of
the violation as established by any credible evidence (including
evidence other than the applicable test method), payment by the
violator of penalties previously assessed for the same violation,
the economic benefit of noncompliance, and the seriousness of the
---------------------------------------------------------------------------
violation.
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. In particular, the Petitioner
enumerated those factors that it alleges the EPA's SSM Policy totally
omits: (i) The size of the business; (ii) the economic impact of the
penalty on the business; (iii) the violator's full compliance history;
(iv) the economic benefit of noncompliance; and (v) the seriousness of
the violation. 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.'' \20\ The Petitioner drew no
distinction between affirmative defenses for unplanned events such as
malfunctions and planned events such as startup and shutdown.
---------------------------------------------------------------------------
\20\ Id.
---------------------------------------------------------------------------
B. The EPA's Proposed Revised Response
As a preliminary matter, the EPA acknowledges that its
interpretation of the CAA in its SSM Policy, since issuance of the 1999
SSM Guidance, has been that states may elect to have narrowly drawn
affirmative defense provisions in SIPs, so long as they meet certain
requirements (e.g., that they only apply to monetary penalties and not
to injunctive relief). The EPA's longstanding guidance has also
provided very specific recommendations to states concerning how to
develop affirmative defense provisions that would be consistent with
CAA requirements (e.g., such provisions should require sources to prove
in an enforcement proceeding that the violations are not so repetitive
as to indicate that the source is improperly designed, maintained or
operated). The EPA further acknowledges that it has previously approved
affirmative defense provisions in SIPs or, when appropriate,
promulgated affirmative defenses in federal implementation plans
(FIPs). Indeed, the EPA's approval of affirmative defense provisions in
SIPs or promulgation of such provisions in FIPs has been upheld by
courts in several decisions.\21\
---------------------------------------------------------------------------
\21\ See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir.
2012) (upholding the EPA's approval of an affirmative defense
applicable during malfunctions in a SIP submission as a permissible
interpretation of the statute under Chevron step 2 analysis), cert.
denied, 134 S.Ct. 387 (2013); Mont. Sulphur & Chemical Co. v. EPA,
666 F.3d 1174, 1191-93 (9th Cir. 2012) (upholding the EPA's creation
of an affirmative defense applicable during malfunctions in a FIP);
Ariz. Public Service Co. v. EPA, 562 F.3d 1116, 1130 (9th Cir. 2009)
(upholding the EPA's creation of an affirmative defense applicable
during malfunctions in a FIP).
---------------------------------------------------------------------------
Most significantly, the EPA's November 2010 approval of an
affirmative defense applicable to ``unplanned events'' (i.e.,
malfunctions) and disapproval of an affirmative defense applicable to
``planned events'' (e.g., planned startup and shutdown) in a Texas SIP
submission were challenged by numerous parties. In 2012, the U.S. Court
of Appeals for the 5th Circuit upheld EPA's actions, including both the
Agency's approval and disapproval of the affirmative defense provisions
applicable to the respective types of events.\22\ In that litigation,
the EPA defended its approval and disapproval actions, including the
filing of an opposition to a petition for certiorari filed by industry
challengers concerning the disapproval of the affirmative defense for
planned events. Throughout the litigation over the Texas SIP revision,
the EPA reiterated what was at the time its view that appropriately
drawn affirmative defense provisions applicable to malfunctions can be
consistent with CAA requirements for SIPs. In particular, the EPA
argued in that litigation that sections 113 and 304 do not preclude
appropriately drawn affirmative defense provisions for malfunctions in
SIPs. The 5th Circuit applied the two-step Chevron analysis to the
EPA's interpretation of section 113 in connection with both the
approval of the affirmative defense provision applicable to ``unplanned
events'' and the disapproval of the affirmative defense provision
applicable to ``planned events.'' With respect to both the approval and
disapproval, the court held that the Agency's interpretation of the CAA
at that time was a ``permissible interpretation of section [113],
warranting deference.'' \23\ Subsequent events have caused EPA to
reevaluate this interpretation of the CAA requirements.
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\22\ Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir.
2012), cert. denied, 134 S.Ct. 387 (2013).
\23\ See Luminant Generation Co. v. EPA, 714 F.3d 841, at 851
and 856 (5th Cir. 2012).
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The EPA has carefully evaluated the more recent April 2014 decision
of the U.S. Court of Appeals for the District of Columbia Circuit in
NRDC v. EPA in which the court came to a contrary conclusion with
respect to the legal basis for an affirmative defense provision in the
Agency's own regulations.\24\ In light of this more recent decision,
the EPA 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. 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.\25\ In order to explain more fully why the EPA believes that
the court's decision in NRDC v. EPA requires the Agency to change its
SSM Policy and to revise its February 2013 proposal notice with respect
to affirmative defense provisions in SIPs, the EPA will first explain
why it believes that the reasoning of the court's decision is more
broadly applicable and will then explain why it believes that the
specific reasons given by the court for rejecting the EPA's prior
interpretation of the CAA would apply with equal weight to SIP
provisions.
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\24\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
\25\ See, e.g., White Stallion Energy Center, LLC v. EPA, 748
F.3d 1222, 1235 (D.C. Cir. 2014) (citing 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)).
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[[Page 55932]]
The EPA believes that the reasoning of the court's decision in NRDC
v. EPA applies more broadly than to the specific facts of the case for
several reasons. First, the EPA notes that the court's decision did not
turn upon the specific provisions of CAA section 112. Although the
court only evaluated the legal validity of an affirmative defense
provision created by the EPA in conjunction with specific standards
applicable to manufacturers of Portland cement, the court based its
decision upon the provisions of sections 113 and 304 that pertain to
enforcement of CAA requirements more broadly, including to SIPs.
Sections 113 and 304 pertain to administrative and judicial enforcement
generally and are in no way limited to enforcement of emission
limitations promulgated by the EPA under section 112. Thus, the EPA
does not think that the mere fact that the court only addressed the
legality of an affirmative defense provision in this particular context
means that the court's interpretation of sections 113 and 304 does not
also apply more broadly. To the contrary, the EPA sees no reason why
the logic of the court concerning sections 113 and 304 would not apply
to SIP provisions as well.
Second, the EPA notes that 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.
The court was clearly cognizant that a similar legal issue had arisen
in litigation in the U.S. Court of Appeals for the 5th Circuit
concerning the Texas SIP and merely acknowledged that fact and clearly
stated in this footnote: ``[W]e do not here confront the question
whether an affirmative defense may be appropriate in a State
Implementation Plan.'' \26\ Given that the case before the court did
not pertain to SIP provisions and thus the legal validity of
affirmative defense provisions in a SIP did not need to be decided, the
EPA believes that footnote 2 simply reflects the court's desire to be
clear that it was only addressing the question of whether sections 113
and 304 preclude any EPA authority to create an affirmative defense
applicable to private civil suits in its own regulations. However, the
EPA believes that the logic of the court's decision in NRDC v. EPA
regarding the import of sections 113 and 304 does extend to SIP
provisions. In the remainder of this section of the SNPR, we explain in
greater detail why we now think the D.C. Circuit's reading of the
statute is the correct one.
---------------------------------------------------------------------------
\26\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
---------------------------------------------------------------------------
Finally, the EPA notes that the fact that the court only addressed
the legality of affirmative defense provisions in the context of
citizen suit enforcement--which by definition is judicial rather than
administrative enforcement--does not affect the relevance of the
court's reasoning with respect to the legal basis for affirmative
defenses in SIP provisions. Under the CAA, a state has the initial
responsibility to develop and submit SIP submissions to meet various
requirements (e.g., to impose reasonably available control measures on
sources in nonattainment areas). The EPA's evaluation and approval of
the state's SIP submission in turn makes the contents of the submission
federally enforceable parts of the SIP. Pursuant to sections 113 and
304, the state, the EPA and citizens then have the ability to seek to
bring enforcement actions for violations of the requirements of the SIP
in federal court. Thus, the court's logic in NRDC v. EPA would also
apply to the provisions of the state's SIP, and the jurisdiction of a
court to impose penalties or other forms of relief for violations of
SIP requirements under the CAA cannot be altered by an affirmative
defense in a state's SIP provision in the same way that it cannot be
altered by such a provision in an EPA regulation.
Just as the court's decision is not limited in ways that would
preclude it from applying to SIP provisions, the EPA also believes that
the logic of the decision would apply with equal weight to affirmative
defense provisions in SIPs for a number of reasons. Most significantly,
the court rejected a series of arguments that the EPA made to support
its legal authority under the CAA to create an affirmative defense in
the Portland cement NESHAP. The EPA made the same or comparable
arguments to support its interpretation of the CAA to provide authority
for states to elect to create, and for the EPA to approve, affirmative
defense provisions in SIPs applicable in judicial enforcement cases.
The EPA has carefully evaluated the reasoning of the court in the NRDC
v. EPA decision and now believes that its prior interpretation of the
CAA with respect to affirmative defense provisions in the SSM Policy,
as first stated in the 1999 SSM Guidance and as updated in the February
2013 proposal notice, was incorrect and would not withstand judicial
review in light of the NRDC v. EPA decision. Evaluation of the key
points of the court's reasoning in the decision indicates that the
court's interpretation of the relevant statutory provisions applies
equally to SIP provisions.
First, the NRDC v. EPA court examined the litigants' key argument
that the EPA has no authority to alter the jurisdiction of courts to
assess monetary penalties or to alter the factors that courts must
consider when assessing the amount of such penalties. The litigants
argued that the EPA's creation of an affirmative defense had the effect
of altering or eliminating the jurisdiction of the federal courts to
impose penalties in a citizen suit enforcement proceeding. The NRDC v.
EPA court evaluated the litigants' argument with a straightforward
reading of CAA section 304(a) concerning the rights of ``any person''
to bring an enforcement action and the jurisdiction of federal courts
to assess liability and penalties in such an action and of CAA section
113(e)(1) concerning the factors that courts must consider when
assessing civil penalties. Citing recent U.S. Supreme Court precedent,
the court reasoned that section 304(a) creates a private right of
action and that the courts alone are vested with authority to determine
the scope of remedies in judicial enforcement, rather than the
administrative agency. The NRDC v. EPA court treated this issue as a
question that it could answer with a Chevron step 1 plain reading of
the statute and evidently saw no ambiguity concerning whether the EPA
has authority to alter the rights of litigants to seek monetary
penalties for violations or to alter the jurisdiction of the federal
courts to assess such penalties. In retrospect and in light of the
court's decision, the EPA believes that this is the correct reading of
CAA sections 113 and 304 with respect to this question in the SIP
context as well. Thus, these statutory provisions functionally bar
affirmative defense provisions in SIPs that would have the effect of
altering the rights of litigants or the authority of the courts in the
event of enforcement for violations of SIP requirements.
Second, the NRDC v. EPA court evaluated the EPA's argument that an
affirmative defense ``fleshes out the statutory requirement that
penalties be applied only when `appropriate.' '' \27\ The EPA had
argued that CAA section 304(a) provides federal district courts with
jurisdiction to ``apply any appropriate civil penalties'' and that such
penalties would only be ``appropriate'' if the regulation being
enforced specifically provided for such penalties in the first place.
In other words, the EPA argued, if the regulation
[[Page 55933]]
contained an affirmative defense that precluded monetary penalties
under certain circumstances, then it would not be ``appropriate'' for a
court to assess the penalties in those circumstances. The NRDC v. EPA
court disagreed with this argument, stating unequivocally that under
the CAA ``deciding whether penalties are `appropriate' is a job for the
courts, not EPA.'' \28\ To the extent that a defendant in an
enforcement case has a basis for arguing that monetary penalties should
be reduced, the court stated that CAA section 113(e)(1) already
provides courts with factors that may be taken into consideration. The
court emphasized that in judicial enforcement, the court decides
whether or not to accept a defendant's arguments concerning the
assessment of penalties, not the EPA. In the February 2013 proposal
notice, the EPA relied on this same argument to support its position
that affirmative defense provisions in SIPs would not contradict CAA
sections 113 and 304 and to justify its proposed denial of the Petition
with respect to affirmative defenses applicable to malfunctions
events.\29\ Given that the court has rejected this interpretation of
the CAA for the EPA's own regulations, the EPA believes that the same
principle applies to states that seek to alter the ability of federal
courts to assess penalties for violations of CAA requirements in SIP
provisions. If states have no authority to alter the jurisdiction of
federal courts to impose remedies for violations explicitly provided
for in the CAA, then this affects the EPA's authority to approve any
such SIP provisions as consistent with the requirements of the CAA.
Pursuant to its authority and responsibility under sections 110(k),
110(l) and 193, the EPA can only approve SIP provisions that comply
with the applicable substantive requirements of the CAA. Approving an
affirmative defense provision into a SIP that would purport to
contravene the jurisdiction of federal courts to determine liability
and to impose remedies in accordance with sections 113 and 304 would
thus be inappropriate.
---------------------------------------------------------------------------
\27\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
\28\ See NRDC v. EPA, 749 F.3d 1055, 1062 (D.C. Cir. 2014).
\29\ See February 2013 proposal notice, 78 FR 12459 at 12472
(middle column).
---------------------------------------------------------------------------
Third, the NRDC v. EPA court scrutinized the EPA's argument that it
has authority under CAA section 301 to create an affirmative defense
through the general authority of the EPA Administrator ``to prescribe
such regulations as are necessary to carry out his functions under''
the CAA.\30\ In the February 2013 proposal notice, the EPA did not make
this particular argument because it was not proposing EPA regulations
to implement the CAA, rather it was proposing action on a petition for
rulemaking that entails evaluating the EPA's guidance to states in the
SSM Policy concerning whether specific types of SIP provisions are
consistent with CAA requirements. Nevertheless, the EPA notes, the
court rejected the notion that the EPA has any authority to promulgate
regulations that would alter or eliminate the jurisdiction of federal
courts to assess penalties when Congress has already directly spoken to
that issue. As the court expressed it, ``EPA cannot rely on its gap-
filling authority to supplement the Clean Air Act's provisions when
Congress has not left the agency a gap to fill.'' The EPA believes that
the court's reasoning would extend to situations where the EPA is
required to determine whether or not an affirmative defense provision
is consistent with CAA requirements. Following this reasoning, the EPA
would not have authority, through rulemaking on a state's SIP
submission or otherwise, to approve an affirmative defense provision
applicable in a judicial enforcement action, because to do so would be
inconsistent with the statutory allocation of jurisdiction to the
federal courts. In other words, just as the EPA's authority to
promulgate regulations to implement the CAA does not encompass the
authority to overwrite statutory provisions, the EPA likewise lacks
authority to issue guidance to states concerning SIP provisions in the
SSM Policy, or to approve a SIP submission that contains such SIP
provisions, in a way that would likewise overwrite statutory provisions
where Congress has spoken directly.
---------------------------------------------------------------------------
\30\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
---------------------------------------------------------------------------
Fourth, the NRDC v. EPA court weighed the EPA's argument that CAA
section 304 does not ``expressly deny'' EPA authority to create
affirmative defenses and thus the EPA is not precluded from doing
so.\31\ Because the statute is silent with respect to whether or not
such provisions are permissible, the EPA inferred that the EPA had
authority to create them as a component of the Portland cement NESHAP.
In the February 2013 proposal notice, the EPA used a comparable
argument that sections 110(a), 113(b) and 113(e) of the CAA do not
expressly forbid affirmative defense provisions in SIPs, both to
support its position that states could elect to have affirmative
defense provisions for malfunctions in SIPs and in support of its
proposed denial of the Petition on this point.\32\ In response to this
particular argument, the NRDC v. EPA court rejected the suggestion that
a court should ``presume a delegation of power absent an express
withholding of such power'' as inconsistent with the principles of
statutory interpretation under Chevron. The court thus expressly
rejected the argument that affirmative defense provisions are
consistent with the CAA by virtue of the fact that Congress has not
explicitly forbidden them, especially in the face of conflicting
provisions such as those in sections 113(b) and 304(a) giving
jurisdiction to federal courts to assess penalties for violations of
CAA requirements. The EPA now believes that this same reasoning applies
to affirmative defense provisions in SIPs.
---------------------------------------------------------------------------
\31\ Id.
\32\ See February 2013 proposal notice, 78 FR 12459 at 12470
(middle column); 12470 (right column); 12472 (right column).
---------------------------------------------------------------------------
Finally, the NRDC v. EPA court evaluated the EPA's argument that
affirmative defense provisions are ``necessary to account for the
tension between requirements that emission limitations be `continuous'
and the practical reality that control technology can fail
unavoidably.'' \33\ This tension is an important point that the EPA has
long noted as a basis for its interpretation of the CAA to allow
affirmative defense provisions, not only in its own regulations such as
the Portland cement NESHAP, but also in the SSM Policy providing
guidance to states for SIP provisions. In the February 2013 proposal
notice, the EPA used this same argument and the same case law support
to justify its position that states could elect to have affirmative
defense provisions for malfunctions in SIPs and for its proposed denial
of the Petition on this point.\34\ The NRDC v. EPA court agreed that
this would be a ``good argument'' for a source to make in an
enforcement proceeding but made clear that this ``tension'' does not
give the EPA legal authority to create an affirmative defense.\35\ The
court thus
[[Page 55934]]
summarily rejected the EPA's argument that the need to ``balance'' the
objectives of the CAA and to resolve the ``tension'' in the CAA
authorizes creation of affirmative defenses that purport to alter or
eliminate the jurisdiction of the courts to assess monetary penalties
or other forms of relief. Given the result in the NRDC v. EPA decision,
the EPA believes that this argument can no longer be a basis for the
EPA's approval of affirmative defense provisions in SIPs that would
apply in judicial enforcement actions. The net result would be that
sources can continue to make this practical argument in the context of
judicial enforcement proceedings and that this consideration would
remain relevant in that forum, but without intercession by states or
the EPA concerning whether the source should be liable for penalties in
any specific circumstance through an affirmative defense provision in
the SIP. In accordance with CAA section 113(e), sources retain the
ability to seek lower monetary penalties through the statutory factors
provided for consideration in administrative or judicial enforcement
proceedings. In this context, for example, a violating source could
argue that factors such as good-faith efforts to comply should reduce
or eliminate otherwise applicable monetary penalties in a particular
situation.
---------------------------------------------------------------------------
\33\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
\34\ See February 2013 proposal notice, 78 FR 12459 at 12470
(left column); 12472 (right column); 12487 (left column).
\35\ The EPA interprets the court's opinion to mean that a
defendant in an enforcement proceeding might want to make this
argument as part of its efforts to seek lower penalties, consistent
with the factors listed in CAA section 113(e). The court's reference
to the EPA's making such an argument relates back to the court's
earlier suggestion that the EPA could seek to participate as an
intervenor or an amicus in a citizen suit enforcement matter if it
wants to take a position on what monetary penalties are
``appropriate'' for a given violation.
---------------------------------------------------------------------------
In light of the court's decision in NRDC v. EPA, the EPA believes
it necessary to revise its SSM Policy and its February 2013 proposed
response to the Petition with respect to the issues related to
affirmative defense provisions in SIPs. Given the court's reasoning
that sections 113 and 304 preclude the EPA from having authority to
create an affirmative defense applicable in private civil suits in
federal regulations because such a provision would impinge upon
jurisdiction explicitly provided by Congress to the courts, the EPA
believes that its past guidance to states in the SSM Policy is flawed.
If the EPA has no authority to create affirmative defenses because it
cannot alter the jurisdiction of the courts to assess penalties in
enforcement proceedings for violations of CAA requirements, then it
follows that states likewise cannot alter the jurisdiction of the
federal courts in SIP provisions and the EPA cannot approve any SIP
provision that purports to do so. The EPA emphasizes that the same
logic applies to any SIP provision that purports to eliminate, restrict
or otherwise alter the jurisdiction of federal courts to impose any of
the expressly listed forms of relief in section 113(b), not merely
those applicable to monetary penalties.\36\ 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.
---------------------------------------------------------------------------
\36\ The EPA notes that CAA section 113(b) expressly gives
federal courts jurisdiction ``to restrain such violation, to require
compliance, to assess such civil penalty, to collect any fees owed
the United States under this chapter (other than subchapter II of
this chapter) and any noncompliance assessment and nonpayment
penalty owed under section 7420 of this title, and to award any
other appropriate relief.'' Similarly, CAA section 304 expressly
provides that in the context of a citizen suit enforcement case,
federal courts have jurisdiction ``to enforce such an emission
standard or limitation, or such an order . . . and to apply any
appropriate civil penalties.'' In the latter section, the term
``emission standard or limitation'' is defined broadly in section
304(f).
---------------------------------------------------------------------------
For the foregoing reasons, in this SNPR the EPA is proposing to
grant the Petition with respect to the Petitioner's request that the
EPA rescind its SSM Policy element interpreting the CAA to allow
affirmative defense provisions in SIPs for excess emissions during SSM
events. Unlike the EPA's view at the time of the February 2013 proposal
notice, the EPA now sees no valid basis for interpreting the CAA to
permit affirmative defense provisions in SIPs for violations due to
excess emissions during any type of event, whether that event is a
malfunction totally beyond the control of the source or a planned event
within the control of the sources such as a startup or shutdown.
V. Revised SSM Policy on Affirmative Defense Provisions in SIPs
In the February 2013 proposal notice, the EPA evaluated the issues
raised by the Petitioner concerning the treatment of excess emissions
during SSM events in SIP provisions. As part of responding to the
Petition, the EPA proposed to clarify, reiterate and revise its
longstanding SSM Policy. In this SNPR, the EPA is now proposing to
revise further its interpretation of the CAA with respect to
affirmative defense provisions applicable to excess emissions during
SSM events.
Based upon a reevaluation of the CAA with respect to SIP
provisions, and upon careful consideration of the implications of the
court's decision in NRDC v. EPA, the EPA is proposing to revise its SSM
Policy concerning the issue of affirmative defense provisions. In
particular, the EPA is proposing to reverse its prior recommendations
to states on this issue provided in the 1999 SSM Guidance. In that
guidance, the EPA had interpreted the CAA to permit states to elect to
create narrowly drawn affirmative defense provisions in SIPs, both for
malfunction events and for startup and shutdown events, so long as the
provisions were consistent with the criteria recommended by the Agency.
In the February 2013 proposal notice, the EPA had already proposed to
revise this interpretation of the CAA to permit states to develop
affirmative defense provisions only for malfunction events and not for
startup and shutdown events. The decision of the court in NRDC v. EPA
indicates that the EPA needs to revise the SSM Policy yet further.
At this juncture, the EPA believes that the reasoning of the U.S.
Court of Appeals for the District of Columbia Circuit in NRDC v. EPA
logically extends to affirmative defense provisions created by states
in SIPs, as well as to such provisions created by the EPA in its own
regulations. Given that sections 113 and 304 functionally bar any
affirmative defense that purports to alter or to eliminate the
jurisdiction of federal courts to assess penalties for violations of
CAA requirements or to impose the other remedies listed in section
113(b), this principle applies to SIP provisions as well. Although the
NRDC v. EPA decision focused on the jurisdiction of the federal courts
to assess civil penalties for violations of EPA regulations promulgated
under section 112, because that was what was specifically at issue in
the case before it, the EPA sees no reason why the same logic would not
apply to any SIP provision that purported to alter or eliminate the
jurisdiction of the federal courts to exercise their authority in the
event of violations as provided in CAA section 113(b), including the
authority to restrain violations, to require compliance, to assess
civil penalties, to collect any fees and to award any other appropriate
relief. In other words, affirmative defense provisions in SIPs that
purport to alter or eliminate the broad authority of federal courts to
award any of these types of relief in the event of an enforcement
action, whether pursuant to section 113 or section 304, are likewise
contrary to the enforcement structure of the CAA. Accordingly, the EPA
proposes to revise its SSM Policy to interpret the CAA to preclude
affirmative defense provisions in SIPs. When finalized, this rulemaking
will embody the EPA's revised SSM Policy, and it will provide the most
up-to-date and comprehensive EPA guidance on
[[Page 55935]]
the subject of the proper treatment of excess emissions from sources
during SSM events in SIP provisions.
VI. Legal Authority, Process and Timing for SIP Calls
In section VIII of the February 2013 proposal notice, the EPA
explained in detail its statutory authority under CAA section 110(k)(5)
to issue a SIP call to states to address SIP deficiencies, the process
for making such a SIP call and the timing for such a SIP call. In this
SNPR, the EPA is not revising its interpretations of the CAA with
respect to those issues and thus is not seeking comment on these
topics. The EPA is revising one aspect of the February 2013 proposal
notice with respect to the basis for the proposed SIP calls for
affirmative defense provisions. In the February 2013 proposal notice,
the EPA explained its basis for concluding that different types of
deficient SIP provisions identified in the Petition are substantially
inadequate to comply with requirements of the CAA and thus warrant a
SIP call for a state to revise or to eliminate the impermissible
provision. With respect to affirmative defense provisions, the EPA
articulated its evaluation of why inadequate affirmative defense
provisions applicable to malfunction events, or any affirmative defense
provisions applicable to planned events like startup and shutdown,
would be inconsistent with fundamental legal requirements of CAA
sections 110(a) and 302(k) and the enforcement structure provided in
CAA sections 113 and 304.\37\ The rationale provided by the EPA in the
February 2013 proposal notice was obviously based upon the Agency's
interpretation of the relevant requirements of the CAA at the time of
that proposal.
---------------------------------------------------------------------------
\37\ See February 2013 proposal notice, FR 12459 at 12487-88.
---------------------------------------------------------------------------
In light of the decision of the U.S. Court of Appeals for the
District of Columbia Circuit in NRDC v. EPA, however, the EPA has
reevaluated whether any form of affirmative defense provision is
consistent with CAA requirements for SIP provisions. The court
concluded that the EPA has no authority to alter the rights of
litigants to seek monetary penalties for violations of CAA requirements
and no authority to alter the broad jurisdiction of federal courts to
assess such penalties for such violations under CAA sections 113 and
304. The EPA believes that the logic of the court's decision extends to
the jurisdiction of the federal courts to impose other remedies
expressly provided for in sections 113 and 304 as well. These sections
of the CAA are thus among the fundamental requirements with which SIPs
must comply in order to be consistent with the enforcement structure
created by Congress in the CAA.
The EPA notes that the NRDC v. EPA court did not condition its
decision on considerations such as whether the use of the affirmative
defense provision in the Portland cement NESHAP would have a
demonstrated causal connection to a given environmental impact (or
undermine a specific enforcement action); the court decided the
question based solely on the fundamental legal requirements of the CAA,
which apply equally to SIPs. The court viewed the statutory
requirements for enforcement of violations as a legal bar to the EPA's
creating an affirmative defense. The EPA believes that this decision
supports the EPA's view that an affirmative defense provision in a SIP
that would operate to interfere with the rights of litigants to seek
penalties for violations of the SIP or other statutory forms of relief,
or to interfere with the jurisdiction of courts to assess penalties or
other relief for such violations, is a substantial inadequacy because
such provision would violate fundamental legal requirements of the CAA.
This potential for interference with the intended enforcement structure
of the CAA is sufficient to establish that such an affirmative defense
provision is substantially inadequate to meet CAA requirements, and
there is no need to demonstrate that the use of the affirmative defense
would be causally connected to any particular impact (e.g., a specific
violation of a NAAQS at a particular monitor on a particular day, or
the undermining of effective enforcement for a particular violation by
a particular source). By specifying that parties have the right to seek
relief for violations and that courts have jurisdiction to impose
relief for such violations, the EPA believes, Congress has already made
the determination that SIP provisions have to be consistent with the
requirements of CAA sections 113 and 304 without regard to impact on
other CAA requirements such as demonstrating attainment. Accordingly,
the EPA has the authority and the responsibility to assure that SIP
provisions meet the requirements of CAA sections 113 and 304 and do not
undermine the enforcement structure for SIPs that was created in the
CAA.
VII. What is the EPA proposing through this SNPR for each of the
specific affirmative defense provisions identified in the Petition or
identified independently by the EPA?
A. Overview of the EPA's Evaluation of Specific Affirmative Defense SIP
Provisions
In addition to its overarching request that the EPA revise its
interpretation of the CAA in the SSM Policy with respect to any form of
affirmative defense provisions in SIPs, the Petitioner identified
specific existing affirmative defense provisions that the Petitioner
contended are not consistent with the EPA's own interpretation of the
CAA as expressed in the 1999 SSM Guidance. In general, the provisions
identified by the Petitioner are structured as affirmative defense
provisions, regardless of whether they use the term ``affirmative
defense'' and regardless of whether the EPA ever specifically evaluated
the provisions with respect to the recommendations for such provisions
in the 1999 SSM Guidance. While not agreeing with the EPA's guidance
for affirmative defense provisions, the Petitioner expressed concern
that all of the identified provisions fail to address some or all of
the criteria for affirmative defense provisions that the EPA
recommended in the 1999 SSM Guidance.
In the February 2013 proposal notice, the EPA explained that it was
reviewing each identified affirmative defense provision on the merits.
At that time, the EPA was operating under the belief that its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs was correct. Accordingly, the EPA evaluated each of
the provisions for consistency with the EPA's interpretation of the CAA
as set forth in the 1999 SSM Guidance and as it was revising its
interpretation in the February 2013 proposal notice. The February 2013
proposal notice thus contained the EPA's proposal to grant or to deny
the Petition based on the EPA's evaluation as to whether the provision
at issue provides adequate criteria to provide only a narrow
affirmative defense for violations due to malfunctions for sources
under certain circumstances consistent with the overarching CAA
objectives, such as attaining and maintaining the NAAQS. In addition,
the EPA proposed to grant the Petition with respect to any identified
provision that creates an affirmative defense applicable during planned
startup and shutdown events, because such provisions are not consistent
with the requirements of the CAA.
[[Page 55936]]
Now, however, the EPA is reevaluating each of the specific
affirmative defense provisions identified by the Petitioner for
consistency with the CAA in light of the court's decision in NRDC v.
EPA. As explained in section III.C of this SNPR, the EPA is revising
its interpretation of the CAA concerning the legal basis for
affirmative defense provisions. Given that the reasoning of the court
applies equally to SIP provisions, the EPA is proposing to grant the
Petition with respect to each of these provisions. Thus, the EPA is
proposing to find that these provisions are substantially inadequate
because they are not consistent with fundamental legal requirements of
the CAA and the EPA is proposing to issue a SIP call to each affected
state for these specific provisions.
In addition to provisions identified by the Petitioner, the EPA is
independently identifying other specific existing problematic
affirmative defense provisions in SIPs. As a result, the EPA is newly
including one or more affirmative defense provisions in the SIPs of the
following four states: (1) New Mexico (Albuquerque-Bernalillo County);
(2) Texas; (3) California (Eastern Kern Air Pollution Control District,
Imperial County Air Pollution Control District and San Joaquin Valley
Air Pollution Control District); and (4) Washington (Energy Facility
Site Evaluation Council and Southwest Clean Air Agency). The EPA is
including these additional affirmative defense provisions in this SNPR
in order to provide comprehensive guidance to all states concerning
such provisions in SIPs and to avoid confusion that may arise due to
recent Agency administrative actions, litigation and resulting court
decisions relevant to such provisions under the CAA. In particular, the
EPA is concerned that its explicit approval of affirmative defense
provisions in the SIPs of other states as being consistent with the
requirements of the CAA as reflected in the 1999 SSM Guidance warrants
affirmative action by the Agency to ask those states to revise their
SIPs. Accordingly, the EPA is proposing to make a finding of
substantial inadequacy for these additional affirmative defense
provisions because they are not consistent with fundamental legal
requirements of the CAA and the EPA is proposing to issue a SIP call
with respect to each affected state for these specific provisions as
well.
B. Affected States in EPA Region III
1. District of Columbia
a. Petitioner's Analysis
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.\38\ Among the other alleged SIP deficiencies, 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). The
Petitioner objected to this provision because the elements of the
defense are not laid out clearly in the SIP, because the term
``affirmative defense'' is not defined in the SIP, and finally, the
Petitioner argues, because affirmative defense provisions for any
excess emissions are wholly inconsistent with the CAA and should be
removed from the SIP. The Petitioner's overarching claim was that CAA
section 113 is a bar to affirmative defense provisions because EPA does
not have authority to alter the jurisdiction of the courts to assess
penalties or the factors that Congress directed the courts to consider.
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\38\ Petition at 29-30.
---------------------------------------------------------------------------
b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to D.C. Mun. Regs. tit. 20 Sec. 606.4 because it
is not a permissible affirmative defense provision consistent with the
requirements of the CAA and the EPA's recommendations in the EPA's SSM
Policy. The EPA previously stated its belief that, by purporting to
create a bar to enforcement that applies not only to monetary penalties
but also to injunctive relief, this provision is inconsistent with the
requirements of CAA sections 113 and 304. By not including sufficient
criteria to assure that sources seeking to raise the affirmative
defense have in fact been properly designed, maintained and operated,
and to assure that sources have taken all appropriate steps to minimize
excess emissions, the provision also fails to be sufficiently narrowly
drawn to justify shielding from monetary penalties for violations.
Thus, the EPA previously reasoned that this provision is not
appropriate as an affirmative defense provision because it is
inconsistent with fundamental requirements of the CAA.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for D.C. Mun. Regs.
tit. 20 Sec. 606.4. The EPA is proposing to revise its interpretation
of the CAA with respect to affirmative defense provisions in SIPs.
Previously the EPA assessed whether the provision met certain
requirements, such as being limited to monetary penalties rather than
injunctive relief and containing sufficiently robust criteria to assure
that the defense applied only in appropriately narrow circumstances.
Now, the Agency must evaluate such provisions to determine whether they
are constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to assess civil penalties or other forms
of relief for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304. The EPA interprets the provision of D.C. Mun.
Regs. tit. 20 Sec. 606.4 to create an impermissible affirmative
defense for violations of visible emission limitations during
``unavoidable malfunction'' events. The provision operates to limit the
jurisdiction of the federal court in an enforcement action and to
preclude both liability and any form of judicial relief contemplated in
CAA sections 113 and 304. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
For this reason, the EPA is proposing to find D.C. Mun. Regs. tit.
20 Sec. 606.4 substantially inadequate to meet CAA requirements and
the EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense
provision and is not revising its February 2013 proposal with respect
to the proposed action on the other four provisions in the DC SIP that
are at issue in the Petition.
2. Virginia
a. Petitioner's Analysis
The Petitioner objected to a generally applicable provision in the
Virginia SIP that allows for discretionary exemptions during periods of
malfunction (9 Va.
[[Page 55937]]
Admin. Code Sec. 5-20-180(G)).\39\ The Petitioner objected to this
provision on multiple grounds, including: (i) That it provides an
exemption from the otherwise applicable SIP emission limitations; (ii)
that it provides a 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'';
and (iii) that if intended as an affirmative defense provision it fails
to meet EPA's interpretation of the CAA with respect to such provisions
for several reasons.
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\39\ Petition at 70-71.
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b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 9 Va. Admin. Code Sec. 5-20-180(G). The EPA
explained that the provision at issue is deficient for several reasons,
including the fact that it is not sufficient as an affirmative defense
provision to meet CAA requirements. With respect to the deficiency of
the provision as an affirmative defense, the EPA noted that even if it
were to consider 9 Va. Admin. Code Sec. 5-20-180(G) as providing for
an affirmative defense rather than an automatic or discretionary
exemption, the provision is not a permissible affirmative defense
provision consistent with the requirements of the CAA as interpreted in
the EPA's recommendations in the EPA's SSM Policy. The EPA previously
stated its belief that, by purporting to create a bar to enforcement
that applies not only to monetary penalties but also to injunctive
relief, this provision is inconsistent with the requirements of CAA
sections 113 and 304. The EPA also argued that by not including
sufficient criteria to assure that sources seeking to raise the
affirmative defense have in fact been properly designed, maintained and
operated, and to assure that sources have taken all appropriate steps
to minimize excess emissions, the provision fails to be sufficiently
narrowly drawn to justify shielding from monetary penalties for
violations. Thus, the EPA previously proposed to find that this
provision is not appropriate as an affirmative defense provision
because it is inconsistent with fundamental requirements of the CAA.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for 9 Va. Admin.
Code Sec. 5-20-180(G). The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304. The EPA
interprets the provision of 9 Va. Admin. Code Sec. 5-20-180(G) to
create an impermissible affirmative defense for violations of SIP
emission limits. The provision would operate to limit the jurisdiction
of the federal court in an enforcement action and to preclude both
liability and any form of judicial relief contemplated in CAA sections
113 and 304. Thus, the EPA believes that this provision interferes with
the intended enforcement structure of the CAA, through which parties
may seek to bring enforcement actions for violations of SIP emission
limits and courts may exercise their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is proposing to find 9 Va. Admin. Code
Sec. 5-20-180(G) substantially inadequate to meet CAA requirements and
the EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense
provision and is not revising its February 2013 proposal notice with
respect to the other separate bases for the finding of substantial
inadequacy of this provision.
3. West Virginia
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified one affirmative
defense provision in the SIP for the state of West Virginia in W.Va.
Code Section 45-2-9.4. This provision provides an affirmative defense
available to sources for excess emissions that occur during
malfunctions. The EPA notes that it has already proposed to make a
finding of substantial inadequacy and to issue a SIP call for another
related provision in W.Va. Code Section 45-2-9.1 for separate reasons
not relevant here and the EPA is not reopening its February 2013
proposal notice with respect to the latter SIP provision.
In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. The affirmative defense in
W.Va. Code Section 45-2-9.4 provides that if a source establishes
certain factual criteria ``to the satisfaction of'' a state official,
then the occurrence of a malfunction is an ``affirmative defense.'' The
EPA notes that the affirmative defense for malfunctions in W.Va. Code
Section 45-2-9.4 was not consistent with the EPA's prior interpretation
of the CAA and with its recommendations for such provisions in the 1999
SSM Guidance. Regardless of that fact, the EPA believes that this
provision impermissibly purports to alter or eliminate the jurisdiction
of federal courts to assess penalties or to impose other forms of
relief for violations of SIP emission limits. Under this provision, if
the source is able to establish that it met each of the specified
criteria to the satisfaction of the state official, then the provision
purports to bar any relief for those violations. Accordingly, the EPA
believes that this affirmative defense provision is inconsistent with
the fundamental enforcement structure of the CAA and the EPA thus
believes that
[[Page 55938]]
the provision is not consistent with CAA requirements for SIP
provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provision applicable to excess emissions that occur during malfunctions
in W.Va. Code Section 45-2-9.4. The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304.
The EPA interprets W.Va. Code Section 45-2-9.4 to provide an
affirmative defense that operates to limit the jurisdiction of the
federal court in an enforcement action and to limit the authority of
the court to impose monetary penalties or to impose other forms of
relief as contemplated in CAA sections 113 and 304. Thus, the EPA
believes that this provision interferes with the intended enforcement
structure of the CAA, through which parties may seek to bring
enforcement actions for violations of SIP emission limits and courts
may exercise their jurisdiction to determine what, if any, relief is
appropriate.
For these reasons, the EPA is proposing to find W.Va. Code Section
45-2-9.4 substantially inadequate to meet CAA requirements and thus the
EPA is proposing to issue a SIP call with respect to this provision.
The EPA notes that in this SNPR it is only addressing this provision
with respect to its deficiency as an affirmative defense provision and
is not revising its February 2013 proposal with respect to the proposed
action on the other provisions in the West Virginia SIP that are at
issue in the Petition.
C. Affected States in EPA Region IV
1. Georgia
a. Petitioner's Analysis
The Petitioner objected to a provision in the Georgia SIP that
provides for exemptions for excess emissions during startup, shutdown
or malfunctions under certain circumstances (Ga. Comp. R. & Regs. 391-
3-1-.02(2)(a)(7)).\40\ The Petitioner objected to this provision on
multiple grounds, including: (i) That it provides an exemption from the
otherwise applicable SIP emission limitations by providing that the
excess emissions ``shall be allowed'' subject to certain conditions;
(ii) that although the provision provides some ``substantive
criteria,'' the provision does not meet the criteria the EPA recommends
for an affirmative defense provision consistent with the requirements
of the CAA in the EPA's 1999 SSM Guidance; and (iii) 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.''
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\40\ Petition at 32.
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b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7). The
EPA explained that the provision at issue is deficient for several
reasons, including the fact that it is not sufficient as an affirmative
defense provision to meet CAA requirements. With respect to the
deficiency of the provision as an affirmative defense, the EPA noted
that Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is not a permissible
affirmative defense provision consistent with the requirements of the
CAA as interpreted in the EPA's recommendations in the EPA's SSM
Policy. By purporting to create a bar to enforcement that applies not
only to monetary penalties but also to injunctive relief, the EPA
reasoned that this provision is inconsistent with the requirements of
CAA sections 113 and 304. The EPA also argued that by not including
sufficient criteria to assure that sources seeking to raise the
affirmative defense have in fact been properly designed, maintained and
operated, and to assure that sources have taken all appropriate steps
to minimize excess emissions, the provision also fails to be
sufficiently narrowly drawn to justify shielding from monetary
penalties for violations. Moreover, the EPA previously reasoned that
Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) was deficient because it
applies not only to malfunctions but also to startup and shutdown
events, contrary to the EPA's interpretation of the CAA set forth in
the February 2013 proposal notice. Thus, the EPA previously proposed to
find that Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is not appropriate
as an affirmative defense provision because it is inconsistent with
fundamental requirements of the CAA.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for Ga. Comp. R. &
Regs. 391-3-1-.02(2)(a)(7). The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304. The EPA
interprets the provision of Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7)
to create an impermissible affirmative defense for violations of SIP
emission limits. The provision operates to limit the jurisdiction of
the federal court in an enforcement action and to preclude both
liability and any form of judicial relief contemplated in CAA sections
113 and 304. Thus, the EPA believes that this provision interferes with
the intended enforcement structure of the CAA, through which parties
may seek to bring enforcement actions for violations of SIP emission
limits and courts may exercise their jurisdiction to determine what, if
any, relief is appropriate.
For these reasons, the EPA is proposing to find Ga. Comp. R. &
Regs. 391-3-1-.02(2)(a)(7) substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision.
[[Page 55939]]
The EPA notes that in this SNPR it is only addressing this provision
with respect to its deficiency as an affirmative defense provision and
is not revising its February 2013 proposal with respect to the other
separate bases for the finding of substantial inadequacy of this
provision.
2. Mississippi
a. Petitioner's Analysis
The Petitioner objected to three provisions in the Mississippi SIP
as being inconsistent with the CAA and the EPA's SSM Policy.\41\ Among
the other alleged SIP deficiencies, 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).\42\ 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.'' Specifically, the Petitioner argued that the EPA's
guidance for affirmative defenses recommends that they ``are not
appropriate where a single source or a small group of sources has the
potential to cause an exceedance of the NAAQS or PSD increments,'' \43\
and Mississippi's provisions do not contain a restriction to address
this point. Further, the Petitioner argued that the affirmative
defenses in Mississippi's SIP are not limited to actions seeking civil
penalties and that they fail to meet other criteria ``that EPA requires
for acceptable defense provisions.'' \44\ Finally, the Petitioner
argued that the CAA and the EPA's SSM Policy interpreting it do not
allow affirmative defenses for excess emissions during maintenance
events under any circumstances.
---------------------------------------------------------------------------
\41\ Petition at 29-30.
\42\ Petition at 47-49.
\43\ Petition at 48.
\44\ Petition at 47-48.
---------------------------------------------------------------------------
b. The EPA's Prior Proposal
In the February 2013 proposal notice, 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 because they are deficient affirmative defense
provisions. By purporting to create a bar to enforcement that applies
not only to monetary penalties but also to injunctive relief, the EPA
reasoned that these provisions are inconsistent with the requirements
of CAA sections 113 and 304. The EPA also argued that by not including
sufficient criteria to assure that sources seeking to raise these
affirmative defenses have in fact been properly designed, maintained
and operated, and to assure that sources have taken all appropriate
steps to minimize excess emissions, the provision also fails to be
sufficiently narrowly drawn to justify shielding from monetary
penalties for violations during malfunctions. With respect to the
comparable affirmative defense for maintenance in 11-1-2 Miss. Code R.
Sec. 10.3, the EPA reiterated its long held position that no
affirmative defense is appropriate for violations that occur during
maintenance because maintenance is a normal mode of source operation
during which the source should be expected to comply with the
applicable emission limitations. Thus, the EPA previously proposed to
find that 11-1-2 Miss. Code R. Sec. 10.1 and 11-1-2 Miss. Code R.
Sec. 10.3 are not appropriate as affirmative defense provisions
because they are inconsistent with fundamental requirements of the CAA.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for 11-1-2 Miss.
Code R. Sec. 10.1 and 11-1-2 Miss. Code R. Sec. 10.3. The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether the provision met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304. The
EPA interprets the provisions of 11-1-2 Miss. Code R. Sec. 10.1 and
11-1-2 Miss. Code R. Sec. 10.3 to create an impermissible affirmative
defenses for violations of SIP emission limits. These provisions
operate to limit the jurisdiction of the federal court in an
enforcement action and to preclude both liability and any form of
judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA
believes that these provisions interfere with the intended enforcement
structure of the CAA, through which parties may seek to bring
enforcement actions for violations of SIP emission limits and courts
may exercise their jurisdiction to determine what, if any, relief is
appropriate.
For these reasons, the EPA is proposing to find 11-1-2 Miss. Code
R. Sec. 10.1 and 11-1-2 Miss. Code R. Sec. 10.3 provisions
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to these provisions. The EPA
notes that in this SNPR it is only addressing 11-1-2 Miss. Code R.
Sec. 10.1 and 11-1-2 Miss. Code R. Sec. 10.3 with respect to the
deficiency as affirmative defense provisions and is not revising its
February 2013 proposal with respect to another SIP provision, 11-1-2
Miss. Code R. Sec. 10.2, for which the EPA has proposed to make a
finding of substantial inadequacy and to issue a SIP call on different
grounds.
3. South Carolina
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified one affirmative
defense provision in the SIP for the state of South Carolina in S.C.
Code Ann. Regs. 62.1, Section II(G)(6). This provision provides that
permits for certain sources may contain an affirmative defense for
excess emissions that occur during emergencies. The permits at issue
embody federally enforceable emission limits that assure the sources
will remain below the threshold for major stationary sources subject to
the permitting requirements of title V of the CAA. By accepting these
emission limits in permits as authorized by this provision of the
state's SIP, these sources are treated as minor sources rather than
major sources for regulatory purposes.
In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the
[[Page 55940]]
EPA had interpreted the CAA to permit states to elect to create
narrowly drawn affirmative defense provisions in SIPs, both for
malfunction events and for startup and shutdown events, so long as the
provisions were consistent with the criteria recommended by the Agency.
In the February 2013 proposal notice, the EPA had already proposed to
revise this interpretation of the CAA to permit states to develop
affirmative defense provisions only for malfunction events and not for
startup and shutdown events. The decision of the court in NRDC v. EPA
indicates that the EPA needs to revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. The affirmative defense in S.C.
Code Ann. Regs. 62.1, Section II(G)(6) provides that if a source meets
certain factual criteria, then the occurrence of an emergency is an
``affirmative defense'' for any technology-based emission limitation
violations that occur during the emergency. The affirmative defense is
not limited to monetary penalties and appears to bar any form of relief
if the source meets the criteria for the defense. The EPA notes that
the affirmative defense for emergencies in S.C. Code Ann. Regs. 62.1,
Section II(G)(6) was not consistent with the EPA's prior interpretation
of the CAA and with its recommendations for such provisions in the 1999
SSM Guidance. Regardless of that fact, the EPA believes that this
provision impermissibly purports to alter or eliminate the jurisdiction
of federal courts to assess penalties or to impose other forms of
relief for violations of federally enforceable SIP or permit emission
limits. Under this provision, if the source is able to establish that
it met each of the specified criteria, then the provision purports to
bar any relief for those violations. Accordingly, the EPA believes that
this affirmative defense provision is inconsistent with the fundamental
enforcement structure of the CAA and the EPA thus believes that the
provision is not consistent with CAA requirements for SIP provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provisions applicable to excess emissions that occur during emergencies
in S.C. Code Ann. Regs. 62.1, Section II(G)(6). The EPA is proposing to
revise its interpretation of the CAA with respect to affirmative
defense provisions in SIPs. Previously the EPA assessed whether such
provisions met certain requirements, such as being limited to monetary
penalties rather than injunctive relief and containing sufficiently
robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets S.C. Code Ann. Regs. 62.1, Section II(G)(6) to
provide an affirmative defense that operates to limit the jurisdiction
of the federal court in an enforcement action and to limit the
authority of the court to impose monetary penalties or to impose other
forms of relief as contemplated in CAA sections 113 and 304. Thus, the
EPA believes that this provision interferes with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP emission limits and
courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
For these reasons, the EPA is proposing to find S.C. Code Ann.
Regs. 62.1, Section II(G)(6) substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision. The EPA notes that in this SNPR it is only
addressing this provision with respect to its deficiency as an
affirmative defense provision and is not revising its February 2013
proposal with respect to the proposed action on the other provisions in
the South Carolina SIP that are at issue in the Petition.
D. Affected States in EPA Region V
1. Illinois
a. Petitioner's Analysis
The Petitioner objected to three generally applicable provisions in
the Illinois SIP (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)
which the Petitioner argued have the effect of providing discretionary
exemptions from otherwise applicable SIP emission limitations.\45\ The
Petitioner objected to these provisions on multiple grounds, including:
(i) that the provisions invite sources to request, during the
permitting process, advance permission to continue to operate during a
malfunction or breakdown and to request advance permission to
``violate'' otherwise applicable emission limitations during startup;
(ii) that the provisions state that, once granted, the advance
permission to violate the emission limitations ``shall be a prima facie
defense to an enforcement action''; and (iii) that the term ` ``prima
facie defense' is ambiguous in its operation.'' The Petitioner argued
that the latter 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.''
The Petitioner asserted that ``if . . . the `prima facie defense' is
anything short of the `affirmative defense,' '' as contemplated in the
1999 SSM Guidance, then ``it clearly has the potential to interfere
with EPA and citizen enforcement.''
---------------------------------------------------------------------------
\45\ Petition at 33-36.
---------------------------------------------------------------------------
b. The EPA's Prior Proposal
In the February 2013 proposal notice, 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. The EPA proposed to grant the Petition for these provisions
even though the state has asserted that the effect of these provisions
together only provides sources with a prima facie defense in an
enforcement proceeding. Even if interpreted to provide an affirmative
defense rather than an automatic or discretionary exemption, however,
the EPA previously noted that the provisions do not provide a
permissible affirmative defense provision consistent with the
requirements of the CAA as interpreted in the EPA's recommendations in
the EPA's SSM Policy.
In the February 2013 proposal notice, the EPA enumerated various
ways in which the provisions were not consistent with the EPA's
recommendations in the EPA's SSM Policy interpreting the CAA: (i) It is
not clear that the defense applies only to monetary penalties, which is
inconsistent with the requirements of CAA sections 113 and 304; (ii)
the defense applies to violations that occurred during startup periods,
which
[[Page 55941]]
is inconsistent with CAA sections 113 and 304; (iii) the provisions
shift the burden of proof to the enforcing party; and (iv) the
provisions do not include sufficient criteria to assure that sources
seeking to raise the affirmative defense have in fact been properly
designed, maintained and operated, and to assure that sources have
taken all appropriate steps to minimize excess emissions. Accordingly,
even if 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
together interpreted to provide a prima facie defense to enforcement
rather than to provide exemptions, the EPA already proposed to find
that these provisions are substantially inadequate to meet CAA
requirements and thus proposed to issue a SIP call with respect to
these provisions.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for 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. The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304. To the
extent 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
together do provide only a defense as characterized by the state rather
than an exemption, the EPA believes that they create an impermissible
affirmative defense for violations of SIP emission limits. These
provisions would operate together to limit the jurisdiction of the
federal court in an enforcement action and to preclude both liability
and any form of judicial relief contemplated in CAA sections 113 and
304. Thus, the EPA believes that these provisions interfere with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
For these reasons, the EPA is proposing to find 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 substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to these provisions. The EPA notes that in this SNPR it is only
addressing these provisions with respect to their deficiency as an
affirmative defense and is not revising its February 2013 proposal
notice with respect to the other separate bases for the finding of
substantial inadequacy for these provisions.
2. Indiana
a. Petitioner's Analysis
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)).\46\ The Petitioner
objected to this provision on multiple grounds, including: (i) That it
provides an exemption from the otherwise applicable SIP emission
limitations; (ii) that it is ambiguous because it provides that excess
emissions during malfunction periods ``shall not be considered a
violation'' if the source demonstrates that a number of conditions are
met, but it does not specify to whom or in what forum such
demonstration must be made; (iii) that if the foregoing demonstration
need only be made to the satisfaction of the state, then this 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; and (iv) that if the demonstration
is to be made in an enforcement context, then the provision could be
interpreted as providing an affirmative defense, but one that is
inconsistent with the requirements of the CAA as interpreted in the
EPA's SSM Policy.
---------------------------------------------------------------------------
\46\ Petition at 36-37.
---------------------------------------------------------------------------
b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 326 Ind. Admin. Code 1-6-4(a). The EPA noted
at that time that even if it were to interpret 326 Ind. Admin. Code 1-
6-4(a) to be an affirmative defense applicable in an enforcement
context, then the provision is not consistent with the EPA's
recommendations for such affirmative defenses in the EPA's SSM Policy
interpreting the CAA. By purporting to create a bar to enforcement that
applies not just to monetary penalties but also to injunctive relief,
and by including criteria inconsistent with those recommended by the
EPA for affirmative defense provisions, this provision is inconsistent
with the requirements of CAA sections 113 and 304. For these reasons,
the EPA previously proposed to find that 326 Ind. Admin. Code 1-6-4(a)
is substantially inadequate to meet CAA requirements and proposed to
issue a SIP call with respect to this provision.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for 326 Ind. Admin.
Code 1-6-4(a). The EPA is proposing to revise its interpretation of the
CAA with respect to affirmative defense provisions in SIPs. Previously
the EPA assessed whether such provisions met certain requirements, such
as being limited to monetary penalties rather than injunctive relief
and containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. Now, the Agency
must evaluate such provisions to determine whether they are constructed
in a way that would purport to preclude federal court jurisdiction
under section 113 to assess civil penalties or other forms of relief
for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
To the extent that 326 Ind. Admin. Code 1-6-4(a) provides only a
defense rather than an exemption, the EPA believes that it creates an
impermissible affirmative defense for violations of SIP emission
limits. The provision would operate to limit the jurisdiction of the
federal court in an enforcement action and to preclude both liability
and any form of judicial relief contemplated in CAA sections 113 and
304. Thus, the EPA believes that this provision interferes with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise
[[Page 55942]]
their jurisdiction to determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find 326 Ind. Admin.
Code 1-6-4(a) substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense and
is not revising its February 2013 proposal notice with respect to the
other separate bases for the finding of substantial inadequacy for the
provision.
3. Michigan
a. Petitioner's Analysis
The Petitioner objected to a generally applicable provision in
Michigan's SIP that provides for an affirmative defense to monetary
penalties for violations of otherwise applicable SIP emission
limitations during periods of startup and shutdown (Mich. Admin. Code
r. 336.1916).\47\ The Petitioner objected to this provision on multiple
grounds, including: (i) That one of the criteria in the affirmative
defense provision, Mich. Admin. Code r. 336.1916, makes the defense
available to a single source or small group of sources as long as such
source did not ``cause[] an exceedance of the national ambient air
quality standards or any applicable prevention of significant
deterioration increment'' thereby applying to sources with the
``potential'' to cause violations of the NAAQS contrary to the
recommendations of EPA's 1999 SSM Guidance; and (ii) that the
affirmative defense provision is available for violations of ``an
applicable emission limitation,'' which Petitioner argued could be
construed by a court to include ``limits derived from federally
promulgated technology based standards, such as NSPSs and NESHAPs,''
contrary to EPA's interpretation of the CAA in the 1999 SSM Guidance to
preclude SIP-based affirmative defenses for violations of these federal
technology-based standards.
---------------------------------------------------------------------------
\47\ Petition at 44-46.
---------------------------------------------------------------------------
b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Mich. Admin. Code r. 336.1916, which provides
for an affirmative defense to violations of applicable emission
limitations during startup and shutdown events. The EPA noted at that
time that an affirmative defense for excess emissions that occur during
planned events such as startup and shutdown was contrary to the EPA's
then current interpretation of the CAA to allow such affirmative
defenses only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For this reason, the EPA previously proposed to find
that Mich. Admin. Code r. 336.1916 is substantially inadequate to meet
CAA requirements and proposed to issue a SIP call with respect to this
provision.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for Mich. Admin.
Code r. 336.1916. The EPA is proposing to revise its interpretation of
the CAA with respect to affirmative defense provisions in SIPs.
Previously the EPA assessed whether such provisions met certain
requirements, such as being limited to monetary penalties rather than
injunctive relief and containing sufficiently robust criteria to assure
that the defense applied only in appropriately narrow circumstances.
Now, the Agency must evaluate such provisions to determine whether they
are constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to assess civil penalties or other forms
of relief for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
The EPA interprets Mich. Admin. Code r. 336.1916 to provide an
affirmative defense that operates to limit the jurisdiction of the
federal court in an enforcement action and to preclude both liability
and any form of judicial relief contemplated in CAA sections 113 and
304. The fact that this affirmative defense applies during planned and
predictable events exacerbates this problem, but even if the provision
were applicable only to genuine malfunction events it is not a
permissible SIP provision. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Mich. Admin. Code
r. 336.1916 substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to this
provision.
E. Affected States and Local Jurisdictions in EPA Region VI
1. Arkansas
a. Petitioner's Analysis
The Petitioner objected to two provisions in the Arkansas SIP as
inconsistent with the CAA and the EPA's SSM Policy.\48\ One of these
provisions, Reg. 19.602, provides an ``affirmative defense'' applicable
to violations by sources in certain circumstances. The Petitioner
objected to Reg. 19.602 because it provides a ``complete affirmative
defense'' for excess emissions that occur during emergency conditions.
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.
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\48\ Petition at 24. The Petitioner cites to 014-01-1 Ark. Code
R. Sec. Sec. 19.1004(H) and 19.602. The EPA interprets these
citations as references to Reg. 19.1004(H) and Reg. 19.602 of the
Arkansas Pollution Control & Ecology Commission (APC&EC), Regulation
No. 19--Regulations of the Arkansas Plan of Implementation for Air
Pollution Control, as approved by the EPA on Apr. 12, 2007 (72 FR
18394). For ease of description, we refer herein to Reg. 19.602.
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b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Reg. 19.602. The EPA explained its view that
Reg. 19.602 is an impermissible affirmative defense provision because
it does not explicitly limit the defense to monetary penalties, it
establishes criteria that are inconsistent with those recommended in
the EPA's SSM Policy, and it can be read to create different or
additional defenses from those that are provided in underlying federal
technology-based emission limitations. As a consequence, the EPA
reasoned that Reg. 19.602 is inconsistent with the requirements for SIP
provisions in CAA sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). For
these reasons, the EPA previously proposed to find that Reg. 19.602 is
substantially inadequate to meet CAA requirements and proposed to issue
a SIP call with respect to this provision.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of
[[Page 55943]]
substantial inadequacy and the SIP call for Reg. 19.602. The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets Reg. 19.602 to provide an affirmative defense
that operates to limit the jurisdiction of the federal court in an
enforcement action and to preclude both liability and any form of
judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA
believes that this provision interferes with the intended enforcement
structure of the CAA, through which parties may seek to bring
enforcement actions for violations of SIP emission limits and courts
may exercise their jurisdiction to determine what, if any, relief is
appropriate.
For these reasons, the EPA is proposing to find Reg. 19.602
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to this provision. The EPA
notes that in this SNPR it is only addressing this provision with
respect to its deficiency as an affirmative defense provision and is
not revising its February 2013 proposal with respect to the proposed
action on the other provision in the Arkansas SIP that is at issue in
the Petition.
2. New Mexico
a. Petitioner's Analysis
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).\49\ The
Petitioner objected to the inclusion of these provisions in the SIP
based on its view that affirmative defense provisions are always
inconsistent with CAA requirements. The Petitioner also argued that
each of these affirmative defenses is generally available to all
sources, which is in contravention of the EPA's recommendation in the
SSM Policy that affirmative defenses should not be available to ``a
single source or groups of sources that has the potential to cause an
exceedance of the NAAQS.'' Finally, the Petitioner argued that the
affirmative defense provision applicable to emergency events is
impermissible because it was modeled after the EPA's title V
regulations, which are not meant to apply to SIP provisions.
---------------------------------------------------------------------------
\49\ Petition at 54-57. The EPA interprets the Petitioner's
reference to N.M. Code R. Sec. 20.2.7.111, N.M. Code R. Sec.
20.2.7.112 and N.M. Code R. Sec. 20.2.7.113 as citations to
20.2.7.111 NMAC, 20.2.7.112 NMAC and 20.2.7.113 NMAC, as approved by
the EPA on Sept. 14, 2009 (74 FR 46910) (hereinafter referred to as
20.2.7.111 NMAC, 20.2.7.112 NMAC and 20.2.7.113 NMAC).
---------------------------------------------------------------------------
b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 20.2.7.112 NMAC, which includes an affirmative
defense applicable during startup and shutdown events that is contrary
to the EPA's interpretation of the CAA. The EPA noted at that time that
an affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's current
interpretation of the CAA to allow such affirmative defenses only for
events beyond the control of the source, i.e., during malfunctions. In
the February 2013 proposal notice, the EPA proposed to revise its SSM
Policy to reflect this interpretation of the CAA, and to update the
recommendations it previously made concerning affirmative defense
provisions applicable to startup and shutdown events in the 1999 SSM
Guidance. The EPA also proposed to grant the Petition with respect to
20.2.7.111 NMAC, which includes an affirmative defense applicable
during malfunction events. The EPA previously reasoned that this
provision is inconsistent with the CAA because it neither limits the
defense to only those sources that do not have the potential to cause
exceedances of the NAAQS or PSD increments nor requires sources to make
an ``after the fact'' showing that no such exceedances actually
occurred as an element of the affirmative defense. Finally, the EPA
proposed to grant the Petition with respect to 20.2.7.113 NMAC. The EPA
previously stated its belief that this provision is an impermissible
affirmative defense because it does not explicitly limit the defense to
monetary penalties, it establishes criteria that are inconsistent with
those in the EPA's SSM Policy, and it can be read to create different
or additional defenses from those that are provided in underlying
federal technology-based emission limitations. Thus, the EPA previously
proposed to find that all three of these provisions are inconsistent
with CAA sections 110(a)(2)(A), 110(a)(2)(C) and 302(k), and with
respect to CAA sections 113 and 304.
c. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for the affirmative
defense provisions applicable to 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). The EPA is proposing to
revise its interpretation of the CAA with respect to affirmative
defense provisions in SIPs. Previously the EPA assessed whether such
provisions met certain requirements, such as being limited to monetary
penalties rather than injunctive relief and containing sufficiently
robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets 20.2.7.111 NMAC and 20.2.7.112 NMAC to provide
affirmative defenses that operate to limit the jurisdiction of the
federal court in an enforcement action and to limit the authority of
the court to impose monetary penalties as contemplated in CAA sections
113 and 304. As to 20.2.7.113 NMAC, the EPA interprets this provision
to operate to limit the jurisdiction of the federal court in an
enforcement action and to limit the authority of the court to impose
any form of relief contemplated in CAA sections 113 and 304. Thus, the
EPA believes that each of these provisions interferes with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP
[[Page 55944]]
emission limits and courts may exercise their jurisdiction to determine
what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find 20.2.7.111 NMAC,
20.2.7.112 NMAC and 20.2.7.113 NMAC substantially inadequate to meet
CAA requirements and the EPA is thus proposing to issue a SIP call with
respect to these provisions.
3. New Mexico: Albuquerque-Bernalillo County
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified three
affirmative defense provisions in the SIP for the state of New Mexico
that apply in the Albuquerque-Bernalillo County area. 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). The EPA acknowledges that it explicitly approved these
affirmative defense provisions in 2010, after ascertaining that they
were consistent with the Agency's interpretation of the CAA and its
recommendations for such provisions in the 1999 SSM Guidance,
applicable at that point in time.\50\
---------------------------------------------------------------------------
\50\ See, ``Approval and Promulgation of Implementation Plans;
Albuquerque-Bernalillo County, NM; Excess Emissions,'' 75 FR 5698
(Feb. 4, 2010).
---------------------------------------------------------------------------
In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Although the EPA previously
determined that 20.11.49.16.A NMAC, 20.11.49.16.B NMAC and
20.11.49.16.C NMAC were consistent with CAA requirements, the Agency
now believes that these provisions impermissibly purport to alter or
eliminate the jurisdiction of federal courts to assess penalties for
violations of SIP emission limits. In the case of the affirmative
defenses applicable to malfunctions and to startup and shutdown, the
provisions set forth the elements of an affirmative defense to be
asserted by sources in the event of violations during such events. In
the case of the affirmative defense applicable to emergencies, the
provision sets forth the elements of an affirmative defense to be
asserted in the event of violations during emergencies. For each of
these affirmative defense provisions, if the source is able to
establish that it met each of the specified criteria to a trier of fact
in an enforcement proceeding, then the provision purports to bar any
civil penalties for those violations (and in the case of the
affirmative defense for emergencies could be construed to bar other
forms of relief as well). Accordingly, the EPA believes that each of
these affirmative defense provisions is inconsistent with the
fundamental enforcement structure of the CAA and the EPA thus believes
that these provisions are not consistent with CAA requirements for SIP
provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provisions applicable to 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). The
EPA is proposing to revise its interpretation of the CAA with respect
to affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets 20.11.49.16.A NMAC and 20.11.49.16.B NMAC to
provide affirmative defenses that operate to limit the jurisdiction of
the federal court in an enforcement action and to limit the authority
of the court to impose monetary penalties as contemplated in CAA
sections 113 and 304. As to 20.11.49.16.C NMAC, the EPA interprets this
provision to operate to limit the jurisdiction of the federal court in
an enforcement action and to limit the authority of the court to impose
any form of relief contemplated in CAA sections 113 and 304. Thus, the
EPA believes that each of these provisions interferes with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP emission limits and
courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
For these reasons, the EPA is proposing to find 20.11.49.16.A NMAC,
20.11.49.16.B NMAC and 20.11.49.16.C NMAC substantially inadequate to
meet CAA requirements and the EPA is thus proposing to issue 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.
4. Texas
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA
[[Page 55945]]
has identified four affirmative defense provisions in the SIP for the
state of Texas. 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)).\51\ The EPA acknowledges that it
explicitly approved these affirmative defense provisions in 2010, after
ascertaining that they were consistent with the Agency's interpretation
of the CAA and its recommendations for such provisions in the 1999 SSM
Guidance, applicable at that point in time. Moreover, the EPA defended
its approval of these specific provisions (as well as its disapproval
of related provisions relevant to affirmative defenses for planned
events) in litigation in the U.S. Court of Appeals for the 5th Circuit.
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\51\ The EPA notes that ``upsets'' and ``unplanned events'' in
these provisions are what are more commonly referred to as
malfunctions, as confirmed by the state at the time the EPA approved
these provisions as part of the SIP. See, ``Approval and
Promulgation of Implementation Plans; Texas; Excess Emissions During
Startup, Shutdown, Maintenance, and Malfunction,'' 75 FR 68989 (Nov.
10, 2010).
---------------------------------------------------------------------------
In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Although the EPA previously
determined that 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d)
and 30 TAC 101.222(e) were consistent with CAA requirements, the Agency
now believes that these provisions impermissibly purport to alter or
eliminate the jurisdiction of federal courts to assess penalties for
violations of SIP emission limits. For all of these affirmative
defenses applicable to upsets and unplanned events, the provisions set
forth the elements of an affirmative defense to be asserted by sources
in the event of violations during such events. For each of these
affirmative defense provisions, if the source is able to establish that
it met each of the specified criteria to a trier of fact in an
enforcement proceeding, then the provision purports to bar any civil
penalties for those violations. Accordingly, the EPA believes that each
of these affirmative defense provisions is inconsistent with the
fundamental enforcement structure of the CAA and the EPA thus believes
that these provisions are not consistent with CAA requirements for SIP
provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provisions applicable to 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)). The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC
101.222(d), and 30 TAC 101.222(e) to provide affirmative defenses that
operate to limit the jurisdiction of the federal court in an
enforcement action and to limit the authority of the court to impose
monetary penalties as contemplated in CAA sections 113 and 304. Thus,
the EPA believes that each of these provisions interferes with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise their jurisdiction to determine what, if any,
relief is appropriate. The EPA appreciates the efforts previously
undertaken by the state to amend its SIP to make it consistent with the
CAA, as interpreted in the Agency's 1999 SSM Guidance, but the EPA must
now revise its SSM Policy with respect to affirmative defense
provisions in SIPs.
For these reasons, the EPA is proposing to find 30 TAC 101.222(b),
30 TAC 101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e)
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to these provisions. The EPA
notes that removal of these four provisions from the SIP will render
cross-references to these provisions in 30 TAC 101.221(e) (as it
applies to 30 TAC 101.222(b)-(e)), 30 TAC 101.222(f) and 30 TAC
101.222(g) superfluous and no longer operative, and the EPA thus
recommends that these provisions be removed as well.
F. Affected State in EPA Region VIII: Colorado
1. Petitioner's Analysis
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)).\52\ The Petitioner acknowledged that this state has correctly
revised its SIP in important ways in order to be consistent with CAA
requirements, as interpreted in the EPA's SSM Policy, including
providing affirmative defense provisions that are limited to monetary
penalties, that do not apply in actions to enforce federal standards
such as NSPS or NESHAP approved into the SIP, and that meet ``almost
word for word'' the recommendations of the 1999 SSM Guidance.
Nevertheless, the Petitioner had two concerns with these SIP
provisions.
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\52\ Petition at 25-27.
---------------------------------------------------------------------------
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 state
[[Page 55946]]
had properly followed EPA guidance in the affirmative defense provision
applicable to startup and shutdown events but failed to do so in the
affirmative defense provision applicable to malfunctions. Specifically,
the Petitioner argued that the EPA's own guidance for affirmative
defenses recommended that they ``are not appropriate where a single
source or a small group of sources has the potential to cause an
exceedance of the NAAQS or PSD increments.'' \53\ Instead, the state's
affirmative defense for malfunction events is potentially available to
any source, if it can establish that the excess emissions during the
event did not result in exceedances of ambient air quality standards
that could be attributed to the source.\54\ The Petitioner objected to
this as not merely inconsistent with the EPA's 1999 SSM Guidance but
also as an approach ``that does not have the same deterrent effect'' on
sources and that would not have the same effects on sources to assure
that they comply at all times in order to avoid violations. As a
practical matter, the Petitioner also argued that including this
element to the affirmative defense could ``mire enforcement proceedings
in the question of whether or not the NAAQS or PSD increments were
exceeded as a matter of fact.''
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\53\ Id. at 25.
\54\ See, 5 Colo. Code Regs Sec. 1001-2(II.E.1.j).
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2. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 5 Colo. Code Regs Sec. 1001-2(II.J) because
it provides an affirmative defense for violations due to excess
emissions applicable during startup and shutdown events, contrary to
the EPA's interpretation of the CAA. The EPA noted at that time that an
affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's then
current interpretation of the CAA to allow such affirmative defenses
only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For these reasons, the EPA previously proposed to
find that 5 Colo. Code Regs Sec. 1001-2(II.J) is substantially
inadequate to meet CAA requirements and proposed to issue a SIP call
with respect to this provision.
The EPA previously proposed to deny the Petition with respect to 5
Colo. Code Regs Sec. 1001-2(II.E), because this provision includes an
affirmative defense applicable to malfunction events that is consistent
with the requirements of the CAA, as interpreted by the EPA in the SSM
Policy. In particular, the EPA proposed to deny the Petition with
respect to the claim that this provision is inconsistent with the CAA
because it is available to sources or groups of sources that might have
the potential to cause an exceedance of the NAAQS or PSD increments.
The EPA reasoned that an acceptable alternative approach is to require
the source to establish, as an element of the affirmative defense, that
the excess emissions in question did not cause such impacts. The EPA
noted in the February 2013 proposal notice that it was updating its
previous guidance recommendations to states for SIPs in the SSM Policy
in order to indicate that in lieu of restricting the application of an
affirmative defense provision only to sources without the potential to
cause NAAQS violations, the state could elect to require a source to
prove that the excess emissions did not cause an exceedance of the
NAAQS or PSD increments as an element of the defense instead.
Accordingly, the EPA previously proposed to find that 5 Colo. Code Regs
Sec. 1001-2(II.E) is consistent with CAA requirements and declined to
make a finding of substantial inadequacy with respect to this
provision.
3. The EPA's Revised Proposal
In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for the affirmative
defense provisions applicable to excess emissions that occur during
startup and shutdown in 5 Colo. Code Regs Sec. 1001-2(II.J). The EPA
is also reversing its prior denial of the Petition with respect to the
affirmative defense provision applicable to malfunctions in 5 Colo.
Code Regs Sec. 1001-2(II.E) and is proposing to find that provision
substantially inadequate and to issue a SIP call for that provision as
well. The EPA is proposing to revise its interpretation of the CAA with
respect to affirmative defense provisions in SIPs. Previously the EPA
assessed whether such provisions met certain requirements, such as
being limited to monetary penalties rather than injunctive relief and
containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. Now, the Agency
must evaluate such provisions to determine whether they are constructed
in a way that would purport to preclude federal court jurisdiction
under section 113 to assess civil penalties or other forms of relief
for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
The EPA interprets 5 Colo. Code Regs Sec. 1001-2(II.J) and 5 Colo.
Code Regs Sec. 1001-2(II.E) to provide affirmative defenses that
operate to limit the jurisdiction of the federal court in an
enforcement action to assess monetary penalties under certain
circumstances as contemplated in CAA sections 113 and 304. Thus, the
EPA believes that these provisions interfere with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP emission limits and
courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
For these reasons, the EPA is proposing to find 5 Colo. Code Regs
Sec. 1001-2(II.J) and 5 Colo. Code Regs Sec. 1001-2(II.E)
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to these provisions.
G. Affected States and Local Jurisdictions in EPA Region IX
1. Arizona
a. Petitioner's Analysis
The Petitioner objected to two provisions in the Arizona Department
of Environmental 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)).\55\ First, the Petitioner
asserted that all affirmative defenses for excess emissions are
inconsistent with the CAA and should be removed from the Arizona SIP.
---------------------------------------------------------------------------
\55\ Petition at 20-22.
---------------------------------------------------------------------------
Additionally, quoting from the EPA's recommendation in the SSM
Policy that such affirmative defenses should not be available to ``a
single source or small group of sources [that] has the potential to
cause an exceedance of the NAAQS or PSD increments,'' the Petitioner
contended that ``sources with the power to cause an exceedance should
be strictly controlled at all times, not just when they actually cause
an
[[Page 55947]]
exceedance.'' \56\ Although acknowledging that R18-2-310 contains some
limitations to address this issue, the Petitioner argued that the
limitations in the SIP provision do not reduce the incentive for such
sources to emit at levels close to those that would violate a NAAQS or
PSD increment in the way that entirely disallowing affirmative defenses
for these types of sources would. Accordingly, the Petitioner requested
that the EPA require Arizona either to remove R18-2-310(B) and (C) from
the SIP entirely or to revise the rule so that affirmative defenses
``are not available to a single source or one of a small group of
sources who have the potential to cause an exceedance of the NAAQS.''
---------------------------------------------------------------------------
\56\ Petition at 20.
---------------------------------------------------------------------------
Second, the Petitioner asserted that the provision applicable to
startup and shutdown periods (R18-2-310(C)) does not include an
explicit requirement for a source seeking to establish an affirmative
defense to prove that ``the excess emissions were not part of a
recurring pattern indicative of inadequate design, operation, or
maintenance.'' The Petitioner provided a table specifically comparing
the provisions in R18-2-310(C) against the EPA's recommended criteria
for affirmative defense provisions in the 1999 SSM Guidance to show
that R18-2-310(C) does not contain a specific provision to address this
recommended criterion and stated that the SIP provision should be
revised to require such a demonstration.
b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to deny the
Petition with respect to the arguments concerning ADEQ's affirmative
defense provisions for malfunctions in R18-2-310(B) because this
provision is consistent with the requirements of the CAA, as
interpreted by the EPA in the SSM Policy. In particular, the EPA
proposed to deny the Petition with respect to the claim that this
provision is inconsistent with the CAA because it is available to
sources or groups of sources that might have the potential to cause an
exceedance of the NAAQS or PSD increments. The EPA reasoned that an
acceptable alternative approach is to require the source to establish,
as an element of the affirmative defense, that the excess emissions in
question did not cause such impacts. The EPA noted in the February 2013
proposal notice that it was updating its previous guidance
recommendations to states for SIPs in the SSM Policy in order to
indicate that in lieu of restricting the application of an affirmative
defense provision only to sources without the potential to cause NAAQS
violations, the state could elect to require a source to prove that the
excess emissions did not cause a violation of the NAAQS as an element
of the defense instead. Accordingly, the EPA previously proposed to
find that R18-2-310(B) is consistent with CAA requirements and declined
to make a finding of substantial inadequacy with respect to this
provision.
With respect to the arguments concerning ADEQ's affirmative defense
provisions for startup and shutdown periods in R18-2- 310(C), the EPA
proposed to grant the Petition because it provides an affirmative
defense for violations due to excess emissions applicable during
startup and shutdown events, contrary to the EPA's current
interpretation of the CAA. The EPA noted at that time that an
affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's then
current interpretation of the CAA to allow such affirmative defenses
only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For these reasons, the EPA previously proposed to
find that R18-2-310(C) is substantially inadequate to meet CAA
requirements and proposed to issue a SIP call with respect to this
provision.
c. The EPA's Revised Proposal
In this SNPR, the EPA is reversing its prior proposed denial of the
Petition with respect to the affirmative defense provision applicable
to malfunctions in R18-2-310(B) and is proposing to find that provision
substantially inadequate and to issue a SIP call for that provision.
The EPA is also revising the prior basis for the finding of substantial
inadequacy and the SIP call for the affirmative defense provisions
applicable to excess emissions that occur during startup and shutdown
in R18-2-310(C). The EPA is proposing to revise its interpretation of
the CAA with respect to affirmative defense provisions in SIPs.
Previously the EPA assessed whether such provisions met certain
requirements, such as being limited to monetary penalties rather than
injunctive relief and containing sufficiently robust criteria to assure
that the defense applied only in appropriately narrow circumstances.
Now, the Agency must evaluate such provisions to determine whether they
are constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to assess civil penalties or other forms
of relief for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
The EPA interprets R18-2-310(B) and R18-2-310(C) to provide
affirmative defenses that operate to limit the jurisdiction of the
federal court in an enforcement action to assess monetary penalties
under certain circumstances as contemplated in CAA sections 113 and
304. Thus, the EPA believes that these provisions interfere with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
For these reasons, the EPA is proposing to find R18-2-310(B) and
R18-2-310(C) substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to these
provisions.
2. Arizona: Maricopa County
a. Petitioner's Analysis
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).\57\ These provisions in Maricopa
County Air Quality Department (MCAQD) Rule 140 are similar to the
affirmative defense provisions in ADEQ R18-2-310.\58\
---------------------------------------------------------------------------
\57\ Petition at 23.
\58\ Petition at 20-22.
---------------------------------------------------------------------------
First, the Petitioner asserted that the affirmative defense
provisions in Rule 140 are problematic for the same reasons identified
in the Petition with respect to ADEQ R18-2-310. Specifically, the
Petitioner argued that affirmative defenses should not be allowed in
any SIP and, alternatively, that to the extent affirmative defenses are
permissible, the provisions in Rule 140 addressing exceedances of the
ambient standards are ``inappropriately permissive and do not comply
with EPA guidance.'' \59\ Accordingly, the
[[Page 55948]]
Petitioner requested that the EPA require Arizona and/or MCAQD either
to remove these provisions from the SIP entirely or to revise them so
that they are not available to a single source or small group of
sources that has the potential to cause a NAAQS exceedance. Second, the
Petitioner asserted that the provisions for startup and shutdown in
Rule 140 do not include an explicit requirement for a source seeking to
establish an affirmative defense to prove that ``the excess emissions
in question were not part of a recurring pattern indicative of
inadequate design, operation, or maintenance.'' The Petitioner argued
that Rule 140 should be revised to require such a demonstration.
---------------------------------------------------------------------------
\59\ Id.
---------------------------------------------------------------------------
b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to deny the
Petition with respect to the arguments concerning MCAQD's affirmative
defense provisions for malfunctions in Regulation 3, Rule 140, Sec.
401 because this provision is consistent with the requirements of the
CAA, as interpreted by the EPA in the SSM Policy. In particular, the
EPA proposed to deny the Petition with respect to the claim that this
provision is inconsistent with the CAA because it is available to
sources or groups of sources that might have the potential to cause an
exceedance of the NAAQS or PSD increments. The EPA reasoned that an
acceptable alternative approach is to require the source to establish,
as an element of the affirmative defense, that the excess emissions in
question did not cause such impacts. The EPA noted in the February 2013
proposal notice that it was updating its previous guidance
recommendations to states for SIPs in the SSM Policy in order to
indicate that in lieu of restricting the application of an affirmative
defense provision only to sources without the potential to cause NAAQS
violations, the state could elect to require a source to prove that the
excess emissions did not cause a violation of the NAAQS as an element
of the defense instead. Accordingly, the EPA previously proposed to
find that Regulation 3, Rule 140, Sec. 401 is consistent with CAA
requirements and declined to make a finding of substantial inadequacy
with respect to this provision.
With respect to the arguments concerning ADEQ's affirmative defense
provisions for startup and shutdown periods in Regulation 3, Rule 140,
Sec. 402, the EPA previously proposed to grant the Petition because it
provides an affirmative defense for violations due to excess emissions
applicable during startup and shutdown events, contrary to the EPA's
interpretation of the CAA. The EPA noted at that time that an
affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's then
current interpretation of the CAA to allow such affirmative defenses
only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For these reasons, the EPA previously proposed to
find that Maricopa County Air Pollution Control Regulation 3, Rule 140,
Sec. 402 is substantially inadequate to meet CAA requirements and
proposed to issue a SIP call with respect to this provision.
c. The EPA's Revised Proposal
In this SNPR, the EPA is reversing its prior proposed denial of the
Petition with respect to the affirmative defense provision applicable
to malfunctions in Regulation 3, Rule 140, Sec. 401 and is proposing
to find that provision substantially inadequate and to issue a SIP call
for that provision. The EPA is also revising the prior basis for the
finding of substantial inadequacy and the SIP call for the affirmative
defense provisions applicable to excess emissions that occur during
startup and shutdown in Regulation 3, Rule 140, Sec. 402. The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets Regulation 3, Rule 140, Sec. 401 and Regulation
3, Rule 140, Sec. 402 to provide affirmative defenses that operate to
limit the jurisdiction of the federal court in an enforcement action to
assess monetary penalties under certain circumstances as contemplated
in CAA sections 113 and 304. Thus, the EPA believes that these
provisions interfere with the intended enforcement structure of the
CAA, through which parties may seek to bring enforcement actions for
violations of SIP emission limits and courts may exercise their
jurisdiction to determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Regulation 3, Rule
140, Sec. 401 and Regulation 3, Rule 140, Sec. 402 substantially
inadequate to meet CAA requirements and the EPA is thus proposing to
issue a SIP call with respect to these provisions.
3. California: Eastern Kern Air Pollution Control District
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified an affirmative
defense provision in the SIP for the state of California applicable in
the Eastern Kern Air Pollution Control District (APCD). 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 light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
[[Page 55949]]
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Kern County Rule 111 includes
the elements of an affirmative defense to be asserted by sources in the
event of violations during breakdown conditions. The provision defines
``breakdown conditions'' as any unforeseeable failure or malfunction of
air pollution control equipment or monitoring equipment. If the source
is able to establish that it met each of the specified criteria to an
``air pollution control officer'' (i.e., an official of the state or
the Eastern Kern APCD), then the provision purports to bar any
enforcement action and thus any form of remedy for the violations that
occur during the malfunction. Accordingly, the EPA believes that the
affirmative defense provision created by Kern County Rule 111 is
inconsistent with the fundamental enforcement structure of the CAA and
the EPA thus believes that the provision is not consistent with CAA
requirements for SIP provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for Kern County Rule 111 Equipment
Breakdown in the California SIP applicable in the Eastern Kern
APCD.\60\ The EPA is proposing to revise its interpretation of the CAA
with respect to affirmative defense provisions in SIPs. Previously the
EPA assessed whether such provisions met certain requirements, such as
being limited to monetary penalties rather than injunctive relief and
containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. The EPA notes that
Kern County Rule 111 did not meet the Agency's prior interpretation of
the CAA with regard to affirmative defense provisions in SIPs.
Regardless of that fact, however, the Agency must now evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
---------------------------------------------------------------------------
\60\ The EPA is proposing in this SNPR to make a finding of
substantial inadequacy and to issue 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 APCD.
---------------------------------------------------------------------------
The EPA interprets Kern County ``Rule 111 Equipment Breakdown'' to
provide an affirmative defense that operates to limit the jurisdiction
of the federal court in an enforcement action and to limit the
authority of the court to impose monetary penalties as contemplated in
CAA sections 113 and 304. The provision provides that if a violating
source meets certain criteria set forth in Rule 111, then ``no
enforcement action may be taken.'' By proscribing any enforcement by
any party if the source meets certain criteria, Rule 111 creates an
affirmative defense that would preclude enforcement for excess
emissions that would otherwise constitute a violation of the applicable
SIP emission limitations. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Kern County ``Rule
111 Equipment Breakdown'' substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision.
4. California: Imperial County Air Pollution Control District
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified an affirmative
defense provision in the SIP for the state of California applicable in
the Imperial Valley APCD. 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 light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Imperial County Rule 111
includes the elements of an affirmative defense to be asserted by
sources in the event of violations during breakdown conditions. The
provision defines ``breakdown conditions'' as any unforeseeable failure
or malfunction of air pollution control equipment or monitoring
equipment. If the source is able to establish that it met each of the
specified criteria to an ``air pollution control officer'' (i.e., an
official of the state or the Imperial Valley APCD), then the provision
purports to bar any enforcement action and thus any form of remedy for
the violations that occur during the malfunction. Accordingly, the EPA
believes that the affirmative defense provision created by Imperial
County Rule 111 is inconsistent with the fundamental enforcement
structure of the CAA and the EPA thus believes that the provision is
not consistent with CAA requirements for SIP provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for Imperial County ``Rule 111
Equipment Breakdown'' in the California SIP applicable in the Imperial
Valley APCD. The EPA is proposing to revise its interpretation of the
CAA with respect to affirmative defense provisions in SIPs. Previously
the EPA assessed whether such provisions met certain requirements, such
as being limited to monetary penalties rather than injunctive relief
and containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. The EPA notes that
Imperial County Rule 111 did not meet the Agency's prior interpretation
of the CAA with regard to affirmative defense provisions in SIPs.
Regardless of that fact, however, the Agency must now evaluate such
[[Page 55950]]
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets Imperial County ``Rule 111 Equipment Breakdown''
to provide an affirmative defense that operates to limit the
jurisdiction of the federal court in an enforcement action and to limit
the authority of the court to impose monetary penalties as contemplated
in CAA sections 113 and 304. The provision provides that if a violating
source meets certain criteria set forth in Rule 111, then ``no
enforcement action may be taken.'' By proscribing any enforcement by
any party if the source meets certain criteria, Rule 111 creates an
affirmative defense that would preclude enforcement for excess
emissions that would otherwise constitute a violation of the applicable
SIP emission limitations. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Imperial County
``Rule 111 Equipment Breakdown'' substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision.
5. California: San Joaquin Valley Air Pollution Control District
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified affirmative
defense provisions in the SIP for the state of California applicable in
the San Joaquin Valley APCD. The affirmative defenses are included in:
(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.'' \61\ Each of
these SIP provisions provides an affirmative defense available to
sources for excess emissions that occur during a breakdown condition
(i.e., malfunction).
---------------------------------------------------------------------------
\61\ The EPA notes that comparable provisions appear in the
California SIP for the San Joaquin Valley APCD in Merced County (in
``Rule 109 Equipment Breakdown'') and in San Joaquin County (in
``Rule 110 Equipment Breakdown''). However, the EPA interprets these
provisions to be enforcement discretion provisions, applicable only
to the state or air district personnel. In each of these counties,
the applicable rules provide that if the source meets certain
criteria, then ``the Air Pollution Control Officer may elect to take
no enforcement action.'' The EPA believes that these provisions
unequivocally apply only to the exercise of enforcement discretion
by the state or air district personnel and are not operative in the
event of enforcement by the EPA or others under the authority of the
citizen suit provision of CAA section 304. For this reason, the EPA
is not proposing to make a finding of substantial inadequacy and a
SIP call for these comparable provisions in Merced County Rule 109
and San Joaquin County Rule 110. If the state of California
disagrees with this interpretation, the EPA anticipates that the
state will inform the Agency of that fact though comment on this
SNPR.
---------------------------------------------------------------------------
In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Fresno County Rule 110, Kern
County Rule 111, Kings County Rule 111, Madera County Rule 113,
Stanislaus County Rule 110 and Tulare County Rule 111 include the
elements of an affirmative defense to be asserted by sources in the
event of violations during breakdown conditions. Each of these
provisions defines ``breakdown conditions'' in comparable ways as any
unforeseeable failure or malfunction of air pollution control equipment
or monitoring equipment. If the source is able to establish that it met
each of the specified criteria to a ``Control Officer'' (i.e., an
official of the state or the San Joaquin Valley APCD), then the
provision purports to bar any enforcement action and thus any form of
remedy for the violations that occur during the malfunction.
Accordingly, the EPA believes that each of the affirmative defense
provisions created by Fresno County Rule 110, Kern County Rule 111,
Kings County Rule 111, Madera County Rule 113, Stanislaus County Rule
110 and Tulare County Rule 111 is inconsistent with the fundamental
enforcement structure of the CAA and the EPA thus believes that these
provisions are not consistent with CAA requirements for SIP provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for six provisions in the California
SIP applicable in the San Joaquin Valley APCD: (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.'' \62\ The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. The EPA notes that Fresno County Rule 110, Kern
County Rule 111, Kings County Rule 111, Madera County Rule 113,
Stanislaus County Rule 110 and Tulare County Rule 111 did not meet the
Agency's prior interpretation of the CAA with regard to affirmative
defense provisions in SIPs. Regardless of that fact, however, the
Agency must now evaluate such provisions to determine whether they are
constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to
[[Page 55951]]
assess civil penalties or other forms of relief for violations of SIP
emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
---------------------------------------------------------------------------
\62\ The EPA is proposing in this SNPR to make a finding of
substantial inadequacy and to issue 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 APCD.
---------------------------------------------------------------------------
The EPA interprets Fresno County Rule 110, Kern County Rule 111,
Kings County Rule 111, Madera County Rule 113, Stanislaus County Rule
110 and Tulare County Rule 111 to provide affirmative defenses that
operate to limit the jurisdiction of the federal court in an
enforcement action and to limit the authority of the court to impose
monetary penalties as contemplated in CAA sections 113 and 304. These
provisions provide that if a violating source meets certain criteria
set forth in each of the Rules, then ``no enforcement action may be
taken.'' By proscribing any enforcement by any party if the source
meets certain criteria, each of these provisions creates an affirmative
defense that would preclude enforcement for excess emissions that would
otherwise constitute a violation of the applicable SIP emission
limitations. Thus, the EPA believes that these provisions interfere
with the intended enforcement structure of the CAA, through which
parties may seek to bring enforcement actions for violations of SIP
emission limits and courts may exercise their jurisdiction to determine
what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Fresno County
``Rule 110 Equipment Breakdown,'' Kern County ``Rule 111 Equipment
Breakdown,'' Kings County ``Rule 111 Equipment Breakdown,'' Madera
County ``Rule 113 Equipment Breakdown,'' Stanislaus County ``Rule 110
Equipment Breakdown'' and Tulare County ``Rule 111 Equipment
Breakdown'' substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to these
provisions.
H. Affected States and Local Jurisdictions in EPA Region X
1. Alaska
a. Petitioner's Analysis
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).\63\ 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 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 further argued
that it is unclear whether the provision could be interpreted to bar
enforcement actions brought by the EPA or citizens, because it is
drafted as if the state were the sole enforcement authority. Finally,
the Petitioner pointed out, the provision is worded as if it were an
affirmative defense, but it uses criteria for enforcement discretion.
Finally, the Petitioner pointed out, the provision is worded as if it
were an affirmative defense, but it uses criteria more relevant for
enforcement discretion. In other words, the Petitioner argued that the
provision is inconsistent with the EPA's recommendations for
affirmative defense provisions in SIPs in the 1999 SSM Guidance.
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\63\ Petition at 18-20.
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b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Alaska Admin. Code tit. 18 Sec. 50.240. To
the extent that this provision is intended to be an affirmative
defense, the EPA believed it to be deficient to meet the requirements
of the CAA for such provisions. The provision applies to excess
emissions during startup, shutdown and maintenance events, contrary to
the EPA's then current interpretation of the CAA to allow such
affirmative defenses only for malfunctions. The EPA noted at that time
that an affirmative defense for excess emissions that occur during
planned events such as startup and shutdown was contrary to the EPA's
then current interpretation of the CAA to allow such affirmative
defenses only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. Additionally, the EPA previously reasoned that the
section of Alaska Admin. Code tit. 18 Sec. 50.240 applying to
``upsets'' is inadequate because the criteria referenced are not
sufficiently similar to those recommended in the EPA's SSM Policy for
affirmative defense provisions applicable to malfunctions. Thus, the
EPA previously considered Alaska Admin. Code tit. 18 Sec. 50.240 to be
inconsistent with the fundamental requirements of the CAA and thus
proposed to find the provision substantially inadequate to meet CAA
requirements and to issue a SIP call with respect to the provision.
c. The EPA's Revised Proposal
In this SNPR, the EPA is revising the prior basis for the finding
of substantial inadequacy and the SIP call for the affirmative defense
provisions applicable to excess emissions that occur during startup,
shutdown and upsets in Alaska Admin. Code tit. 18 Sec. 50.240. The EPA
is proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets Alaska Admin. Code tit. 18 Sec. 50.240 to
provide affirmative defenses that operate to limit the jurisdiction of
the federal court in an enforcement action to assess monetary penalties
or impose injunctive relief under certain circumstances as contemplated
in CAA sections 113 and 304. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Alaska Admin. Code
tit. 18 Sec. 50.240 substantially inadequate to meet CAA requirements
and the EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense
provision and is not revising its
[[Page 55952]]
February 2013 proposal notice with respect to the other separate bases
for the finding of substantial inadequacy of this provision.
2. Washington
a. Petitioner's Analysis
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).\64\
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
further argued that it is unclear whether the provision could be
interpreted to bar enforcement actions brought by the EPA or citizens,
because it is drafted as if the state were the sole enforcement
authority. Finally, the Petitioner pointed out, the provision is worded
as if it were an affirmative defense, but it uses criteria more
relevant for enforcement discretion.
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\64\ Petition at 71-72.
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b. The EPA's Prior Proposal
In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Wash. Admin. Code Sec. 173-400-107. The
provision applies to startup, shutdown and maintenance events, contrary
to the EPA's then current interpretation of the CAA to allow such
affirmative defenses only for malfunctions. The EPA noted at that time
that an affirmative defense for excess emissions that occur during
planned events such as startup, shutdown and maintenance was contrary
to the EPA's then current interpretation of the CAA to allow such
affirmative defenses only for events beyond the control of the source,
i.e., during malfunctions. In the February 2013 proposal notice, the
EPA proposed to revise its SSM Policy to reflect this interpretation of
the CAA, and to update the recommendations it previously made
concerning affirmative defense provisions applicable to startup and
shutdown events in the 1999 SSM Guidance.\65\ Furthermore, the EPA
previously reasoned that the section of Wash. Admin. Code Sec. 173-
400-107 applying to ``upsets'' is inadequate because the criteria
referenced are not sufficiently similar to those recommended in the
EPA's SSM Policy for affirmative defense provisions applicable to
malfunctions. Moreover, the provision appears to bar the EPA and
citizens from seeking penalties and injunctive relief. Thus, the EPA
previously considered Wash. Admin. Code Sec. 173-400-107 to be
inconsistent with the fundamental requirements of the CAA and the EPA
thus proposed to find the provision substantially inadequate to meet
CAA requirements and proposed to issue a SIP call with respect to the
provision.
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\65\ The EPA notes that its SSM Policy guidance has always
stated that affirmative defense provisions in SIPs are not
appropriate for excess emissions that occur during maintenance
activities. The 1999 SSM Guidance only made recommendations with
respect to affirmative defense provisions applicable to malfunctions
and to startup and shutdown. The 1983 SSM Guidance recommended that
``scheduled maintenance is a predictable event which can be
scheduled at the discretion of the operator'' and therefore
recommended even against the exercise of enforcement discretion for
violations during maintenance except under limited circumstances.
See 1983 SSM Guidance at Attachment, Page 3.
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c. The EPA's Revised Proposal
In this SNPR, the EPA is revising the prior basis for the proposed
finding of substantial inadequacy and the proposed SIP call for the
affirmative defense provisions applicable to excess emissions that
occur during startup, shutdown, maintenance and upsets in Wash. Admin.
Code Sec. 173-400-107. The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304.
The EPA interprets Wash. Admin. Code Sec. 173-400-107 to provide
affirmative defenses that operate to limit the jurisdiction of the
federal court in an enforcement action to assess monetary penalties or
impose injunctive relief under certain circumstances as contemplated in
CAA sections 113 and 304. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Wash. Admin. Code
Sec. 173-400-107 substantially inadequate to meet CAA requirements and
the EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense
provision and is not revising its February 2013 proposal notice with
respect to the other separate bases for the finding of substantial
inadequacy of this provision.
3. Washington: Energy Facility Site Evaluation Council
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified affirmative
defense provisions in the SIP for the state of Washington that relate
to the Energy Facility Site Evaluation Council (EFSEC).\66\ The EFSEC
portion of the SIP includes Wash. Admin. Code Sec. 463-39-005, which
adopts by reference Wash. Admin. Code Sec. 173-400-107, thereby
incorporating the affirmative defenses applicable to startup, shutdown,
scheduled maintenance and ``upsets'' for which, as explained earlier in
this SNPR, the EPA has proposed to find Wash. Admin. Code Sec. 173-
400-107 substantially inadequate to meet CAA requirements.
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\66\ This is the state agency that reviews and authorizes the
construction and operation of major energy facilities in Washington
for all media in lieu of any other individual state or local agency
permits. Thus these affirmative defense provisions can become
embodied in the authorizations for such sources.
---------------------------------------------------------------------------
In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
[[Page 55953]]
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Wash. Admin. Code Sec. 463-39-
005 incorporates by reference the elements of an affirmative defense to
be asserted by sources in the event of violations during startup,
shutdown, scheduled maintenance and upsets. The provision provides
criteria for each type of event. If the source is able to establish
that it met each of the specified criteria, then the provision purports
to bar any enforcement action and thus any form of remedy for the
violations that occur during such events. The provision explicitly
states that if the criteria are met, then the violations ``shall be
excused and not subject to penalty.'' Accordingly, the EPA believes
that the affirmative defenses created by Wash. Admin. Code Sec. 463-
39-005 through its incorporation by reference of Wash. Admin. Code
Sec. 173-400-107 are inconsistent with the fundamental enforcement
structure of the CAA and the EPA thus believes that the Wash. Admin.
Code Sec. 463-39-005 provision is not consistent with CAA requirements
for SIP provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for Wash. Admin. Code Sec. 463-39-
005's incorporation by reference of Wash. Admin. Code Sec. 173-400-107
in the Washington SIP with respect to the EFSEC. The EPA is proposing
to revise its interpretation of the CAA with respect to affirmative
defense provisions in SIPs. Previously the EPA assessed whether such
provisions met certain requirements, such as being limited to monetary
penalties rather than injunctive relief and containing sufficiently
robust criteria to assure that the defense applied only in
appropriately narrow circumstances. The EPA notes that the affirmative
defenses created in Wash. Admin. Code Sec. 463-39-005 through its
incorporation by reference of Wash. Admin. Code Sec. 173-400-107 did
not meet the Agency's prior interpretation of the CAA with regard to
affirmative defense provisions in SIPs. Regardless of that fact,
however, the Agency must now evaluate such provisions to determine
whether they are constructed in a way that would purport to preclude
federal court jurisdiction under section 113 to assess civil penalties
or other forms of relief for violations of SIP emission limits, to
prevent courts from considering the statutory factors for the
assessment of civil penalties under section 113 or to interfere with
the rights of litigants to pursue enforcement consistent with their
rights under the citizen suit provision of section 304.
The EPA interprets Wash. Admin. Code Sec. 463-39-005's
incorporation by reference of Wash. Admin. Code Sec. 173-400-107 to
provide affirmative defenses that would operate to limit the
jurisdiction of the federal court in an enforcement action and to limit
the authority of the court to impose monetary penalties as contemplated
in CAA sections 113 and 304. The provision provides that if a violating
source meets certain criteria incorporated by reference from Wash.
Admin. Code Sec. 173-400-107, then the excess emissions are ``excused
and not subject to penalty.'' By proscribing any enforcement by any
party if the source meets certain criteria, Wash. Admin. Code Sec.
463-39-005 creates affirmative defenses that would preclude enforcement
for excess emissions that would otherwise constitute a violation of the
applicable SIP emission limitations. Thus, the EPA believes that this
provision interferes with the intended enforcement structure of the
CAA, through which parties may seek to bring enforcement actions for
violations of SIP emission limits and courts may exercise their
jurisdiction to determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find Wash. Admin. Code
Sec. 463-39-005's incorporation by reference of Wash. Admin. Code
Sec. 173-400-107 substantially inadequate to meet CAA requirements and
the EPA is thus proposing to issue a SIP call with respect to this
provision.
4. Washington: Southwest Clean Air Agency
a. The EPA's Evaluation
In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified affirmative
defense provisions in the SIP for the state of Washington applicable in
the portion of the state regulated by the Southwest Clean Air Agency
(SWCAA).\67\ The affirmative defenses are included in the SIP in SWAPCA
``400-107 Excess Emissions.'' This SIP provision 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.
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\67\ 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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In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. SWAPCA 400-107 Excess Emissions
includes the elements of an affirmative defense to be asserted by
sources in the event of violations during startup and shutdown,
maintenance and upsets. The provision provides criteria for each type
of event. If the source is able to establish that it met each of the
specified criteria to ``the Authority or the decision-making entity''
(i.e., officials of the state or the SWCAA), then the provision
purports to bar any enforcement action and thus any form of
[[Page 55954]]
remedy for the violations that occur during such events. The provision
explicitly states that if the criteria are met, then the violations
``shall be excused and not subject to penalty.'' Accordingly, the EPA
believes that the affirmative defenses created by SWAPCA 400-107 are
inconsistent with the fundamental enforcement structure of the CAA and
the EPA thus believes that the provision is not consistent with CAA
requirements for SIP provisions.
b. The EPA's Proposal
In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for SWAPCA ``400-107 Excess
Emissions'' in the Washington SIP applicable in the area regulated by
SWCAA. The EPA is proposing to revise its interpretation of the CAA
with respect to affirmative defense provisions in SIPs. Previously the
EPA assessed whether such provisions met certain requirements, such as
being limited to monetary penalties rather than injunctive relief and
containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. The EPA notes that
SWAPCA 400-107 Excess Emissions did not meet the Agency's prior
interpretation of the CAA with regard to affirmative defense provisions
in SIPs. Regardless of that fact, however, the Agency must now evaluate
such provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
The EPA interprets SWAPCA ``400-107 Excess Emissions'' to provide
affirmative defenses that operate to limit the jurisdiction of the
federal court in an enforcement action and to limit the authority of
the court to impose monetary penalties as contemplated in CAA sections
113 and 304. The provision provides that if a violating source meets
certain criteria set forth in SWAPCA 400-107, then the excess emissions
are ``excused and not subject to penalty.'' By proscribing any
enforcement by any party if the source meets certain criteria, SWAPCA
400-107 creates affirmative defenses that would preclude enforcement
for excess emissions that would otherwise constitute a violation of the
applicable SIP emission limitations. Thus, the EPA believes that this
provision interferes with the intended enforcement structure of the
CAA, through which parties may seek to bring enforcement actions for
violations of SIP emission limits and courts may exercise their
jurisdiction to determine what, if any, relief is appropriate.
For these reasons, the EPA is proposing to find SWAPCA ``400-107
Excess Emissions'' substantially inadequate to meet CAA requirements
and the EPA is thus proposing to issue a SIP call with respect to this
provision.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it raises novel
legal or policy issues. Accordingly, the EPA submitted this action to
the Office of Management and Budget (OMB) for review under Executive
Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes
made in response to OMB recommendations have been documented in the
docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The EPA's SPNR, in response to the Petition, merely states the EPA's
current interpretation of the statutory requirements of the CAA and
does not require states to collect any additional information. To the
extent that the EPA proposes to issue a SIP call to a state under CAA
section 110(k)(5), the EPA is only proposing an action that requires
the state to revise its SIP to comply with existing requirements of the
CAA.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.\68\
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\68\ Small entities include small businesses, small
organizations and small governmental jurisdictions. For purposes of
assessing the impacts of this notice on small entities, small entity
is defined as: (1) A small business that is a small industrial
entity as defined in the U.S. Small Business Administration (SBA)
size standards (see 13 CFR 121.201); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000;
or (3) a small organization that is any not-for-profit enterprise
that is independently owned and operated and is not dominant in its
field.
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After considering the economic impacts of this SNPR on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Courts have
interpreted the RFA to require a regulatory flexibility analysis only
when small entities will be subject to the requirements of the rule.
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). This proposed
rule will not impose any requirements on small entities. Instead, the
proposed action merely states the EPA's current interpretation of the
statutory requirements of the CAA. To the extent that the EPA proposes
to issue a SIP call to a state under CAA section 110(k)(5), the EPA is
only proposing an action that requires the 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
determining, among other things, which of the several lawful approaches
to the treatment of excess emissions during SSM events will be applied
to particular sources. We continue to be interested in the potential
impacts of the proposed rule on small entities and welcome comments on
issues related to such impacts.
D. Unfunded Mandates Reform Act
This rule 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.
The action may impose a duty on certain state governments to meet their
existing obligations to revise their SIPs to comply with CAA
requirements. The direct costs of this action on states would be those
associated with preparation and submission of a SIP revision by those
states for which the EPA issues a SIP call. 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.
These aggregate costs would be far less than the $100-million threshold
in any one year. Thus, this rule is not subject to the requirements of
sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA
[[Page 55955]]
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. The regulatory requirements of
this action would apply to the states for which the EPA issues a SIP
call. To the extent that such 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 would 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, as
specified in Executive Order 13132, because it will simply maintain the
relationship and the distribution of power between the EPA and the
states as established by the CAA. The proposed SIP calls are required
by the CAA because the EPA is proposing to find that the current SIPs
of the affected states are substantially inadequate to meet fundamental
CAA requirements. In addition, the effects on the states will not be
substantial because where a SIP call is finalized for a state, the SIP
call will require the affected state to submit only those revisions
necessary to address the SIP deficiencies and applicable CAA
requirements. While this action may impose direct effects on the
states, the expenditures would not be substantial because they would be
far less than $25 million in the aggregate in any one year. Thus,
Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with the
EPA's policy to promote communications between the EPA and state and
local governments, the EPA specifically solicits comment on this SNPR
from state and local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). 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. However, the EPA invites comment on this SNPR from tribal
officials.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the EO
has the potential to influence the regulation. This action is not
subject to EO 13045 because it merely prescribes the EPA's action for
states regarding their obligations for SIPs under the CAA.
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), 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
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through OMB, explanations when the EPA decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, the EPA is not considering the use of any voluntary
consensus standards.
J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the U.S.
The EPA has determined that this SNPR will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The rule 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 proposed 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 SNPR
would require 17 states to bring their treatment of these emissions
into line with CAA requirements, which would lead to 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. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final agency actions by
the EPA under the CAA. This section provides, in part, that petitions
for review must be filed in the U.S. Court of Appeals for the District
of Columbia Circuit (i) when the agency action consists of ``nationally
applicable regulations promulgated, or final actions taken, by the
Administrator'' or (ii) when such action is locally or regionally
applicable, if ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.''
This rule responding to the Petition is ``nationally applicable''
within the meaning of section 307(b)(1). First, the
[[Page 55956]]
rulemaking addresses a Petition that raises issues that are applicable
in all states and territories in the U.S. For example, the Petitioner
requested that the EPA revise its SSM Policy with respect to whether
affirmative defense provisions in SIPs are consistent with CAA
requirements. The EPA's response is relevant for all states nationwide.
Second, the rulemaking will address a Petition that raises issues
relevant to specific existing SIP provisions in states across the U.S.
that are located in each of the 10 EPA Regions, 10 different federal
circuits and multiple time zones. Third, the rulemaking addresses a
common core of knowledge and analysis involved in formulating the
decision and a common interpretation of the requirements of the CAA
being applied to SIPs in states across the country. Fourth, the
rulemaking, by addressing issues relevant to appropriate SIP provisions
in one state, may have precedential impacts upon the SIPs of other
states nationwide. Courts have found similar rulemaking actions to be
of nationwide scope and effect.\69\
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\69\ See, e.g., State of Texas, et al. v. EPA, 2011 U.S. App.
LEXIS 5654 (5th Cir. 2011) (finding SIP call to 13 states to be of
nationwide scope and effect and thus transferring the case to the
U.S. Court of Appeals for the D.C. Circuit in accordance with CAA
section 307(b)(1)).
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This determination is appropriate because in the 1977 CAA
Amendments that revised CAA section 307(b)(1), Congress noted that the
Administrator's determination that an action is of ``nationwide scope
or effect'' would be appropriate for any action that has ``scope or
effect beyond a single judicial circuit.'' H.R. Rep. No. 95-294 at 323-
324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect
of this rulemaking 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 rule 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.
Accordingly, the EPA is proposing to determine that this will be a
rulemaking of nationwide scope or effect.
In addition, pursuant to CAA section 307(d)(1)(V), the EPA is
determining that this rulemaking action will be subject to the
requirements of section 307(d), which establish procedural requirements
specific to rulemaking under the CAA.
IX. 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: September 5, 2014.
Janet G. McCabe,
Acting Assistant Administrator.
[FR Doc. 2014-21830 Filed 9-16-14; 8:45 am]
BILLING CODE 6560-50-P
