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

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Start Preamble Start Printed Page 33840

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final action.

SUMMARY:

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

DATES:

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

ADDRESSES:

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

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Ms. Lisa Sutton, U.S. EPA, Office of Air Quality Planning and Standards, State and Local Programs Group (C539-01), Research Triangle Park, NC 27711, telephone number (919) 541-3450, email address: sutton.lisa@epa.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

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

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

I. General Information

A. Does this action apply to me?

Entities potentially affected by this action include states, U.S. territories, local authorities and eligible tribes that are currently administering, or may in the future administer, EPA-approved implementation plans (“air agencies”).[1] The EPA's action on the petition for rulemaking filed by the Sierra Club with the EPA Administrator on June 30, 2011 (the Petition), is potentially of interest to all such entities because the EPA is addressing issues related to basic CAA requirements for SIPs. The particular issues addressed in this rulemaking are the same issues that the Petition identified, which relate specifically to section 110 of the CAA. Pursuant to section 110, through what is generally referred to as the “SIP program,” the states and the EPA together provide for implementation, maintenance and enforcement of the national ambient air quality standards (NAAQS). While recognizing similarity to (and in some instances overlap with) issues concerning other air programs, e.g., concerning SSM provisions in the EPA's regulatory programs for New Source Performance Standards (NSPS) pursuant to section 111 and National Emission Standards for Hazardous Air Pollutants (NESHAP) pursuant to section 112, the EPA notes that the issues addressed in this rulemaking are specific to SSM provisions in the SIP program. Through this rulemaking, the EPA is both clarifying and applying its interpretation of the CAA with respect to SIP provisions applicable to excess emissions during SSM events in general. In addition, the EPA is issuing findings that some of the specific SIP provisions in some of the states identified in the Petition and some SIP provisions in additional states are substantially inadequate to meet CAA requirements, pursuant to CAA section 110(k)(5), and thus those states (named in section II.C of this document) are directly affected by this rulemaking. For example, where a state's existing SIP includes an affirmative defense provision that would purport to alter the jurisdiction of the federal courts to assess monetary penalties for violations of CAA requirements, then the EPA is determining that the SIP provision is substantially inadequate because the provision is inconsistent with fundamental requirements of the CAA. This action may also be of interest to the public and to owners and operators of industrial facilities that are subject to emission limitations in SIPs, because it will require changes to certain state rules applicable to excess emissions during SSM events. This action embodies the EPA's updated SSM Policy concerning CAA requirements for SIP provisions relevant to excess emissions during SSM events.

B. Where can I get a copy of this document and other related information?

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

C. How is the preamble organized?

The information presented in this preamble is organized as follows:

I. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document and other related information?

C. How is the preamble organized?

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

II. Overview of Final Action and Its Consequences

A. Summary

B. What the Petitioner Requested

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

D. What are the next steps for states that are receiving a finding of substantial inadequacy and a SIP call?

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

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

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

III. Statutory, Regulatory and Policy Background

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

A. What the Petitioner Requested

B. What the EPA Proposed

C. What Is Being Finalized in This Action

D. Response to Comments Concerning Affirmative Defense Provisions in SIPs

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

A. What the Petitioner Requested

B. What the EPA Proposed

C. What Is Being Finalized in This Action

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

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

A. What the Petitioner Requested

B. What the EPA Proposed

C. What Is Being Finalized In This Action

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

VII. Clarifications, Reiterations and Revisions to the EPA's SSM Policy

A. Applicability of Emission Limitations During Periods of SSM

1. What the EPA Proposed

2. What Is Being Finalized in This Action

3. Response to Comments

B. Alternative Emission Limitations During Periods of Startup and Shutdown

1. What the EPA Proposed

2. What Is Being Finalized in This Action

3. Response to Comments

C. Director's Discretion Provisions Pertaining to SSM Events

1. What the EPA Proposed

2. What Is Being Finalized in This Action

3. Response to Comments

D. Enforcement Discretion Provisions Pertaining to SSM Events

1. What the EPA Proposed

2. What Is Being Finalized in This Action

3. Response to Comments

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

F. Relationship Between SIP Provisions and Title V Regulations

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

VIII. Legal Authority, Process and Timing for SIP Calls

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

1. General Statutory AuthorityStart Printed Page 33842

2. Substantial Inadequacy of Automatic Exemptions

3. Substantial Inadequacy of Director's Discretion Exemptions

4. Substantial Inadequacy of Improper Enforcement Discretion Provisions

5. Substantial Inadequacy of Affirmative Defense Provisions

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

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

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

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

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

B. Affected States in EPA Region I

C. Affected State in EPA Region II

D. Affected States in EPA Region III

E. Affected States and Local Jurisdictions in EPA Region IV

F. Affected States in EPA Region V

G. Affected States in EPA Region VI

H. Affected States in EPA Region VII

I. Affected States in EPA Region VIII

J. Affected States and Local Jurisdictions in EPA Region IX

K. Affected States in EPA Region X

X. Implementation Aspects of EPA's SSM SIP Policy

A. Recommendations Concerning Alternative Emission Limitations for Startup and Shutdown

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

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

A. Definitions

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

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

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

E. Enforcement Discretion Provisions

F. Affirmative Defense Provisions in SIPs

G. Anti-Backsliding Considerations

XII. Environmental Justice Consideration

XIII. References

XIV. Statutory and Executive Order Reviews

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

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

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

K. Determination Under Section 307(d)

L. Congressional Review Act (CRA)

XV. Judicial Review

XVI. Statutory Authority

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

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

The terms Act or CAA or the statute mean or refer to the Clean Air Act.

The term affirmative defense means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding. The term affirmative defense provision means more specifically a state law provision in a SIP that specifies particular criteria or preconditions that, if met, would purport to preclude a court from imposing monetary penalties or other forms of relief for violations of SIP requirements in accordance with CAA section 113 or CAA section 304.

The term Agency means or refers to the EPA. When not capitalized, this term refers to an agency in general and not specifically to the EPA.

The terms air agency and a ir agencies mean or refer to states, the District of Columbia, U.S. territories, local air permitting authorities with delegated authority from the state and tribal authorities with appropriate CAA jurisdiction.

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

The term automatic exemption means a generally applicable provision in a SIP that would provide that if certain conditions existed during a period of excess emissions, then those exceedances would not be considered violations of the applicable emission limitations.

The term director's discretion provision means, in general, a regulatory provision that authorizes a state regulatory official unilaterally to grant exemptions or variances from otherwise applicable emission limitations or control measures, or to excuse noncompliance with otherwise applicable emission limitations or control measures, which would be binding on the EPA and the public.

The term EPA refers to the United States Environmental Protection Agency.

The term emission limitation means, in the context of a SIP, a legally binding restriction on emissions from a source or source category, such as a numerical emission limitation, a numerical emission limitation with higher or lower levels applicable during specific modes of source operation, a specific technological control measure requirement, a work practice standard, or a combination of these things as components of a comprehensive and continuous emission limitation in a SIP provision. In this respect, the term emission limitation is defined as in section 302(k) of the CAA. By definition, an emission limitation can take various forms or a combination of forms, but in order to be permissible in a SIP it must be applicable to the source continuously, i.e., cannot include periods during which emissions from the source are legally or functionally exempt from regulation. Regardless of its form, a fully approvable SIP emission limitation must also meet all substantive requirements of the CAA applicable to such a SIP provision, e.g., the statutory requirement of section 172(c)(1) for imposition of reasonably available control measures and reasonably available control technology (RACM and RACT) on sources located in designated nonattainment areas.

The term excess emissions means the emissions of air pollutants from a source that exceed any applicable SIP emission limitation. In particular, this term includes those emissions above the otherwise applicable SIP emission limitation that occur during startup, shutdown, malfunction or other modes of source operation, i.e., emissions that would be considered violations of the applicable emission limitation but for an impermissible automatic or discretionary exemption from such emission limitation.

The term February 2013 proposal means the notice of proposed rulemaking that the EPA signed on February 12, 2013, and published in the Federal Register on February 22, 2013. The February 2013 proposal comprises the EPA's initial proposed response to the Petition. The EPA subsequently issued the September 2014 SNPR that updated and revised the EPA's February 2013 proposal with respect to affirmative defense provisions in SIPs.

The term malfunction means a sudden and unavoidable breakdown of process or control equipment.

The term NAAQS means national ambient air quality standard or standards. These are the national primary and secondary ambient Start Printed Page 33843air quality standards that the EPA establishes under CAA section 109 for criteria pollutants for purposes of protecting public health and welfare.

The term Petition refers to the petition for rulemaking titled, “Petition to Find Inadequate and Correct Several State Implementation Plans under Section 110 of the Clean Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance Provisions,” filed by the Sierra Club with the EPA Administrator on June 30, 2011.

The term Petitioner refers to the Sierra Club.

The term practically enforceable means, in the context of a SIP emission limitation, that the limitation is enforceable as a practical matter (e.g., contains appropriate averaging times, compliance verification procedures and recordkeeping requirements). The term uses “practically” as it means “in a practical manner” and not as it means “almost” or “nearly.” In this document, the EPA uses the term “practically enforceable” as interchangeable with the term “practicably enforceable.”

The term shutdown means, generally, the cessation of operation of a source for any reason. In this document, the EPA uses this term in the generic sense. In individual SIP provisions it may be appropriate to include a specifically tailored definition of this term to address a particular source category for a particular purpose.

The term SIP means or refers to a State Implementation Plan. Generally, the SIP is the collection of state statutes and regulations approved by the EPA pursuant to CAA section 110 that together provide for implementation, maintenance and enforcement of a national ambient air quality standard (or any revision thereof) promulgated under section 109 for any air pollutant in each air quality control region (or portion thereof) within a state. In some parts of this document, statements about SIPs in general would also apply to tribal implementation plans in general even though not explicitly noted.

The term SNPR means the supplemental notice of proposed rulemaking that the EPA signed and posted on the Agency Web site on September 5, 2014, and published in the Federal Register on September 17, 2014. Supplementing the February 2013 proposal, the SNPR comprises the EPA's revised proposed response to the Petition with respect to affirmative defense provisions in SIPs.

The term SSM refers to startup, shutdown or malfunction at a source. It does not include periods of maintenance at such a source. An SSM event is a period of startup, shutdown or malfunction during which there may be exceedances of the applicable emission limitations and thus excess emissions.

The term SSM Policy refers to the cumulative guidance that the EPA has issued as of any given date concerning its interpretation of CAA requirements with respect to treatment of excess emissions during periods of startup, shutdown and malfunction at a source in SIP provisions. The most comprehensive statement of the EPA's SSM Policy prior to this final action is embodied in a 1999 guidance document discussed in more detail in this final action. That specific guidance document is referred to as the 1999 SSM Guidance. The final action described in this document embodies the EPA's updated SSM Policy for SIP provisions relevant to excess emissions during SSM events. In section XI of this document, the EPA provides a statement of the Agency's SSM SIP Policy as of 2015.

The term startup means, generally, the setting in operation of a source for any reason. In this document, the EPA uses this term in the generic sense. In an individual SIP provision it may be appropriate to include a specifically tailored definition of this term to address a particular source category for a particular purpose.

II. Overview of Final Action and Its Consequences

A. Summary

The EPA is in this document taking final action on a petition for rulemaking that the Sierra Club filed with the EPA Administrator on June 30, 2011. The Petition concerns how air agency rules in EPA-approved SIPs treat excess emissions during periods of SSM of industrial source process or emission control equipment. Many of these rules were added to SIPs and approved by the EPA in the years shortly after the 1970 amendments to the CAA, which for the first time provided for the system of clean air plans that were to be prepared by air agencies and approved by the EPA. At that time, it was widely believed that emission limitations set at levels representing good control of emissions during periods of so-called “normal” operation (which, until no later than 1982, was meant by the EPA to refer to periods of operation other than during startup, shutdown, maintenance or malfunction) could in some cases not be met with the same emission control strategies during periods of startup, shutdown, maintenance or malfunction.[2] Accordingly, it was common for state plans to include provisions for special, more lenient treatment of excess emissions during such periods of startup, shutdown, maintenance or malfunction. Many of these provisions took the form of absolute or conditional statements that excess emissions from a source, when they occur during startup, shutdown, malfunction or otherwise outside of the source's so-called “normal” operations, were not to be considered violations of the air agency rules; i.e., these emissions were considered exempt from legal control.

Excess emission provisions for startup, shutdown, maintenance and malfunctions were often included as part of the original SIPs that the EPA approved in 1971 and 1972. In the early 1970s, because the EPA was inundated with proposed SIPs and had limited experience in processing them, not enough attention was given to the adequacy, enforceability and consistency of these provisions. Consequently, many SIPs were approved with broad and loosely defined provisions to control excess emissions. Starting in 1977, however, the EPA discerned and articulated to air agencies that exemptions for excess emissions during such periods were inconsistent with certain requirements of the CAA.[3] The EPA also realized that such provisions allow opportunities for sources to emit pollutants during such periods repeatedly and in quantities that could cause unacceptable air pollution in nearby communities with no legal pathway within the existing EPA-approved SIP for air agencies, the EPA, the public or the courts to require the sources to make reasonable efforts to reduce these emissions. The EPA has attempted to be more careful after 1977 not to approve SIP submissions that contain illegal SSM provisions and has issued several guidance memoranda to advise states on how to avoid impermissible provisions [4] as they expand and revise their SIPs. The EPA has also found several SIPs to be deficient because of problematic SSM provisions and called upon the affected states to amend their SIPs. However, in light of the other high-priority work facing both air agencies and the EPA, Start Printed Page 33844the EPA had not until the February 2013 proposal initiated a broader effort to require a larger number of states to remove impermissible provisions from their SIPs and to adopt other, approvable approaches for addressing excess emissions when appropriate. Public interest in the issue of SSM provisions in SIPs is evidently high, on the basis of the large number of public submissions made to the rulemaking docket in response to the February 2013 proposal (representing approximately 69,000 unique commenters) and the SNPR (over 20,000 commenters, some of whom had also made submissions in response to the earlier proposal). The EPA has attempted to further count commenters according to general categories (state and local governments, industry commenters, public interest groups and individual commenters), as described in section V.D.1 of this document. Public interest groups, including the Petitioner, have sued the EPA in several state-specific cases concerning SIP issues, and they have been urging the EPA to give greater priority generally to addressing the issue of SSM provisions in SIPs. In one of these SIP cases, the EPA entered into a settlement agreement requiring it to respond to the Petition from the Sierra Club. A copy of the settlement agreement is provided in the docket for this rulemaking.[5]

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

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

Of the 41 states for which SIP provisions were identified by the Petition or identified independently by the Agency in the SNPR, the EPA is issuing a SIP call for 36 states. The EPA is aware of other SSM-related SIP provisions that were not identified in the Petition but that may be inconsistent with the EPA's interpretation of the CAA. For SIP provisions that have potential defects other than an impermissible affirmative defense, the EPA elected to focus on the provisions specifically raised in the Petition. The EPA may address these other provisions later in a separate notice-and-comment action. States are encouraged to consider the updated SSM Policy laid out in this final action in reviewing their own SIP provisions. With respect to affirmative defense provisions, however, the EPA elected to identify some additional provisions not included in the Petition. This is necessary to minimize potential confusion relating to other recent rulemakings and court decisions that pertain generally to affirmative defense provisions. Therefore, in order to give updated and comprehensive guidance with respect to affirmative defense provisions, the EPA has also addressed additional affirmative defense provisions in 17 states in the SNPR and in this final action. See section V.D.3 of this document for further explanation as to which SSM-related SIP provisions the Start Printed Page 33845EPA reviewed for consistency with CAA requirements as part of this rulemaking.

B. What the Petitioner Requested

The Petition includes three interrelated requests concerning the treatment in SIPs of excess emissions by sources during periods of SSM.

First, the Petitioner argued that SIP provisions providing an affirmative defense for monetary penalties for excess emissions in judicial proceedings are contrary to the CAA. Thus, the Petitioner advocated that the EPA should rescind its interpretation of the CAA expressed in the SSM Policy that allows appropriately drawn affirmative defense provisions in SIPs. The Petitioner made no distinction between affirmative defenses for excess emissions related to malfunction and those related to startup or shutdown. Further, the Petitioner requested that the EPA issue a SIP call requiring states to eliminate all such affirmative defense provisions in existing SIPs. As explained later in this final document, the EPA has decided to fully grant this request. Although the EPA initially proposed to grant in part and to deny in part this request in the February 2013 proposal, a subsequent court decision concerning the legal basis for affirmative defense provisions under the CAA caused the Agency to reexamine this question. As a result, the EPA issued the SNPR to present its revised interpretation of the CAA with respect to this issue and to propose action on the Petition and on specific existing affirmative defense provisions in the SIPs of 17 states consistent with the reasoning of that court decision. In this final action, the EPA is revising its SSM Policy with respect to affirmative defenses for violations of SIP requirements. The EPA believes that SIP provisions that function to alter the jurisdiction of the federal courts under CAA section 113 and section 304 to determine liability and to impose remedies are inconsistent with fundamental legal requirements of the CAA, especially with respect to the enforcement regime explicitly created by statute.

Second, the Petitioner argued that many existing SIPs contain impermissible provisions, including automatic exemptions from applicable emission limitations during SSM events, director's discretion provisions that in particular provide discretionary exemptions from applicable emission limitations during SSM events, enforcement discretion provisions that appear to bar enforcement by the EPA or citizens for such excess emissions and inappropriate affirmative defense provisions that are not consistent with the CAA or with the recommendations in the EPA's SSM Policy. The Petitioner identified specific provisions in SIPs of 39 states that it considered inconsistent with the CAA and explained the basis for its objections to the provisions. As explained later in this final document, the EPA agrees with the Petitioner that some of these existing SIP provisions are legally impermissible and thus finds such provisions “substantially inadequate” [10] to meet CAA requirements. Among the reasons for the EPA's action is to eliminate SIP provisions that interfere with enforcement in a manner prohibited by the CAA. Simultaneously, where the EPA agrees with the Petitioner, the EPA is issuing a SIP call that directs the affected state to revise its SIP accordingly. For the remainder of the identified provisions, however, the EPA disagrees with the contentions of the Petitioner and is thus denying the Petition with respect to those provisions and taking no further action. The EPA's action issuing the SIP calls on this portion of the Petition will assure that these SIPs comply with the fundamental requirements of the CAA with respect to the treatment of excess emissions during periods of SSM. The majority of the state-specific provisions affected by this SIP call action are inconsistent with the EPA's longstanding interpretation of the CAA through multiple iterations of its SSM Policy. With respect to SIP provisions that include an affirmative defense for violations of SIP requirements, however, the EPA has revised its prior interpretation of the statute that would have allowed such provisions under certain very limited conditions. Based upon an evaluation of the relevant statutory provisions in light of more recent court decisions, the EPA is issuing a SIP call to address existing affirmative defense provisions that would operate to alter or eliminate the jurisdiction of courts to assess liability and impose remedies and that would thereby contradict explicit provisions of the CAA relating to judicial authority.

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

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

In general, the final action may be of interest to all air agencies because the EPA is clarifying, restating and revising its longstanding SSM Policy with respect to what the CAA requires concerning SIP provisions relevant to excess emissions during periods of SSM. For example, the EPA is granting the Petitioner's request that the EPA rescind its prior interpretation of the CAA that, as stated in prior guidance in the SSM Policy, allowed appropriately drawn affirmative defense provisions applicable to malfunctions. The EPA is also reiterating, clarifying or revising its prior guidance with respect to several other issues related to SIP provisions applicable to SSM events in order to ensure that future SIP submissions, not limited to those that affected states make in response to this action, are fully consistent with the CAA. For example, the EPA is reiterating and clarifying its prior guidance concerning how states may elect to replace existing exemptions for excess emissions during SSM events with properly developed alternative emission limitations that apply to the affected sources during startup, shutdown or other normal modes of source operation (i.e., that apply to excess emissions during those normal modes of operation as opposed to during malfunctions). This action also Start Printed Page 33846addresses the use of interpretive letters for purposes of resolving an actual or perceived ambiguity in a SIP submission during the EPA's evaluation of the SIP revision at issue.

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

Table 1—List of States With SIP Provisions for Which the EPA Either Grants or Denies the Petition, in Whole or in Part

EPA regionStateFinal action on petition
IMaineGrant.
New HampshireDeny.
Rhode IslandGrant.
IINew JerseyPartially grant, partially deny.
IIIDelawareGrant.
District of ColumbiaPartially grant, partially deny.
VirginiaGrant.
West VirginiaGrant.
IVAlabamaGrant.
FloridaGrant.
GeorgiaGrant.
KentuckyPartially grant, partially deny.
MississippiGrant.
North CarolinaGrant.
South CarolinaPartially grant, partially deny.
TennesseeGrant.
VIllinoisGrant.
IndianaGrant.
MichiganGrant.
MinnesotaGrant.
OhioPartially grant, partially deny.
VIArkansasGrant.
LouisianaGrant.
New MexicoGrant.
OklahomaGrant.
VIIIowaPartially grant, partially deny.
KansasGrant.
MissouriPartially grant, partially deny.
NebraskaDeny.
VIIIColoradoGrant.
MontanaGrant.
North DakotaPartially grant, partially deny.
South DakotaGrant.
WyomingDeny.
IXArizonaPartially grant, partially deny.
XAlaskaGrant.
IdahoDeny.
OregonDeny.
WashingtonGrant.

For each state for which the final action on the Petition is either “Grant” or “Partially grant, partially deny,” the EPA finds that certain specific provisions in each state's SIP are substantially inadequate to meet CAA requirements for the reason that these provisions are inconsistent with the CAA with regard to how the state treats excess emissions from sources during periods of SSM. With respect to the affirmative defense provisions identified in the Petition, the EPA finds that they improperly impinge upon the statutory jurisdiction of the courts to determine liability and impose remedies for violations of SIP emission limitations. The EPA believes that certain specific provisions in these SIPs fail to meet fundamental statutory requirements intended to attain and maintain the Start Printed Page 33847NAAQS, protect prevention of significant deterioration (PSD) increments and improve visibility. Equally importantly, the EPA believes that the same provisions may undermine the ability of states, the EPA and the public to enforce emission limitations in the SIP that have been relied upon to ensure attainment or maintenance of the NAAQS or to meet other CAA requirements.

For each state for which the final action on the Petition is either “Grant” or “Partially grant, partially deny,” the EPA is also in this final action calling for a SIP revision as necessary to correct the identified deficient provisions. The SIP revisions that the states are directed to make will rectify a number of different types of defects in existing SIPs, including automatic exemptions from emission limitations, impermissible director's discretion provisions, enforcement discretion provisions that have the effect of barring enforcement by the EPA or through a citizen suit and affirmative defense provisions that are inconsistent with CAA requirements. A corrective SIP revision addressing automatic or impermissible discretionary exemptions will ensure that excess emissions during periods of SSM are treated in accordance with CAA requirements. Similarly, a corrective SIP revision addressing ambiguity in who may enforce against violations of these emission limitations will also ensure that CAA requirements to provide for enforcement are met. A SIP revision to remove affirmative defense provisions will assure that the SIP provision does not purport to alter or eliminate the jurisdiction of federal courts to assess liability or to impose remedies consistent with the statutory authority provided in CAA section 113 and section 304. The particular provisions for which the EPA is requiring SIP revisions are summarized in section IX of this document. Many of these provisions were added to the respective SIPs many years ago and have not been the subject of action by the state or the EPA since.

For each of the states for which the EPA is denying or is partially denying the Petition, the EPA finds that the particular provisions identified by the Petitioner are not substantially inadequate to meet the requirements pursuant to CAA section 110(k)(5), because the provisions: (i) Are, as they were described in the Petition and as they appear in the existing SIP, consistent with the requirements of the CAA; or (ii) are, as they appear in the existing SIP after having been revised subsequent to the date of the Petition, consistent with the requirements of the CAA; or (iii) have, subsequent to the date of the Petition, been removed from the SIP. Thus, in this final action, the EPA is taking no action to issue a SIP call with respect to those states for those particular SIP provisions.

In addition to evaluating specific SIP provisions identified in the Petition, the EPA has independently evaluated additional affirmative defense provisions in the SIPs of six states (applicable in nine statewide and local jurisdictions).[12] As explained in the SNPR, the EPA determined that this approach was necessary in order to take into consideration recent judicial decisions concerning affirmative defense provisions and CAA requirements. As the result of this evaluation, the EPA finds that specific affirmative defense provisions in 17 states (applicable in 23 statewide and local jurisdictions) are substantially inadequate to meet CAA requirements for the reason that these provisions impinge upon the statutory jurisdiction of the federal courts to determine liability and impose remedies for violations of SIP emission limitations.[13] By improperly impinging upon the jurisdiction of the federal courts, the EPA believes, these provisions fail to meet fundamental statutory requirements intended to attain and maintain the NAAQS, protect PSD increments and improve visibility. As with the affirmative defense provisions identified in the Petition, the EPA believes that these provisions may undermine the ability of states, the EPA and the public to enforce emission limitations in the SIP that have been relied upon to ensure attainment or maintenance of the NAAQS or to meet other CAA requirements.

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

Table 2—List of All States With SIP Provisions Subject to SIP Call

EPA regionStateArea
IMaineState.
Rhode IslandState.
IINew JerseyState.
IIIDelawareState.
District of ColumbiaState.
VirginiaState.
West VirginiaState.
IVAlabamaState.
FloridaState.
GeorgiaState.
KentuckyState.
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MississippiState.
North CarolinaState and Forsyth County.
South CarolinaState.
TennesseeState, Knox County and Shelby County.
VIllinoisState.
IndianaState.
MichiganState.
MinnesotaState.
OhioState.
VIArkansasState.
LouisianaState.
New MexicoState and Albuquerque-Bernalillo County.
OklahomaState.
TexasState.
VIIIowaState.
KansasState.
MissouriState.
VIIIColoradoState.
MontanaState.
North DakotaState.
South DakotaState.
IXArizonaState and Maricopa County.
CaliforniaEastern Kern APCD, Imperial County APCD and San Joaquin Valley Unified APCD.
XAlaskaState.
WashingtonState, Energy Facility Site Evaluation Council and Southwest Clean Air Agency.

D. What are the next steps for states that are receiving a finding of substantial inadequacy and a SIP call?

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

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

The issuance of a SIP call requires an affected state to take action to revise its SIP. That action by the state may, in turn, affect sources as described later in this document. The states that are receiving a SIP call in this final action will in general have options as to exactly how to revise their SIPs. In response to a SIP call, a state retains broad discretion concerning how to revise its SIP, so long as that revision is consistent with the requirements of the CAA. Some provisions that are affected by this SIP call, for example an automatic exemption provision, have to be removed entirely and an affected source could no longer depend on the exemption to avoid all liability for excess emissions during SSM events. Some other provisions, for example a problematic enforcement discretion provision, could either be removed entirely from the SIP or retained if revised appropriately to apply only to state enforcement personnel, in accordance with the EPA's interpretation of the CAA as described in the EPA's SSM Policy. The EPA notes that if a state removes a SIP provision that pertains to the state's exercise of enforcement discretion, this removal would not affect the ability of the state to apply its traditional enforcement discretion in its enforcement program. It would merely make the exercise of such discretion case-by-case in nature, as is the normal form of such discretion.

In addition, affected states may choose to consider reassessing particular emission limitations, for example to determine whether those emission limitations can be revised such that well-managed emissions during planned operations such as startup and shutdown would not exceed the revised emission limitation, while still protecting air quality and meeting other applicable CAA requirements. Such a revision of an emission limitation will need to be submitted as a SIP revision for the EPA's approval if the existing limitation to be changed is already included in the SIP or if the existing SIP relies on the particular existing emission limitation to meet a CAA requirement. In such instances, the EPA would review the SIP revision for consistency with all applicable CAA requirements. A state that chooses to revise particular emission limitations, in addition to removing or revising the aspect of the existing SIP provision that is inconsistent with CAA requirements, could include those revisions in the same SIP submission that addresses the SSM provisions identified in the SIP call, or it could submit them separately.

The implications for a regulated source in a given state, in terms of Start Printed Page 33849whether and how it would potentially have to change its equipment or practices in order to operate with emissions that comply with the revised SIP, will depend on the nature and frequency of the source's SSM events and how the state has chosen to revise the SIP to address excess emissions during SSM events. The EPA did not conduct an analysis that would indicate, e.g., how many owners or operators of sources in each affected state would likely change any procedures or processes for control of emissions from those sources during periods of SSM. The impacts of revised SIP provisions will be unique to each affected state and its particular mix of affected sources, and thus the EPA cannot predict what those impacts might be. Furthermore, the EPA does not believe the results of such analysis, had one been conducted, would significantly affect this rulemaking that pertains to whether SIP provisions comply with CAA requirements. The EPA recognizes that after all the responsive SIP revisions are in place and are being implemented by the states, some sources may need to take steps to control emissions better so as to comply with emission limitations continuously, as required by the CAA, or to increase durability of components and monitoring systems to detect and manage malfunctions promptly.

The EPA Regional Offices will work with states to help them understand their options and the potential consequences for sources as the states prepare their SIP revisions in response to this SIP call.

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

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

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

When the EPA issues a final SIP call to a state, that action alone does not cause any automatic change in the legal status of the existing affected provision(s) in the SIP. During the time that the state takes to develop a SIP revision in response to the SIP call and the time that the EPA takes to evaluate and act upon the resulting SIP submission from the state pursuant to CAA section 110(k), the existing affected SIP provision(s) will remain in place. The EPA notes, however, that the state regulatory revisions that the state has adopted and submitted for SIP approval will most likely be already in effect at the state level during the pendency of the EPA's evaluation of and action upon the new SIP submission.

The EPA recognizes that in the interim period, there may continue to be instances of excess emissions that adversely affect attainment and maintenance of the NAAQS, interfere with PSD increments, interfere with visibility and cause other adverse consequences as a result of the impermissible provisions. The EPA is particularly concerned about the potential for serious adverse consequences for public health in this interim period during which states, the EPA and sources make necessary adjustments to rectify deficient SIP provisions and take steps to improve source compliance. However, given the need to resolve these longstanding SIP deficiencies in a careful and comprehensive fashion, the EPA believes that providing sufficient time consistent with statutory constraints for these corrections to occur will ultimately be the best course to meet the ultimate goal of eliminating the inappropriate SIP provisions and replacing them with provisions consistent with CAA requirements.

III. Statutory, Regulatory and Policy Background

The Petition raised issues related to excess emissions from sources during periods of SSM and the correct treatment of these excess emissions in SIPs. In this context, “excess emissions” are air emissions that exceed the otherwise applicable emission limitations in a SIP, i.e., emissions that would be violations of such emission limitations. The question of how to address excess emissions correctly during SSM events has posed a challenge since the inception of the SIP program in the 1970s. The primary objective of state and federal regulators is to ensure that sources of emissions are subject to appropriate emission controls as necessary in order to attain and maintain the NAAQS, protect PSD increments, improve visibility and meet other statutory requirements. Generally, this is achieved through enforceable emission limitations on sources that apply, as required by the CAA, continuously.

Several key statutory provisions of the CAA are relevant to the EPA's evaluation of the Petition. These provisions relate generally to the basic legal requirements for the content of SIPs, the authority and responsibility of air agencies to develop such SIPs and the EPA's authority and responsibility to review and approve SIP submissions in the first instance, as well as the EPA's authority to require improvements to a previously approved SIP if the EPA later determines that to be necessary for a SIP to meet CAA requirements. In addition, the Petition raised issues that pertain to enforcement of provisions in a SIP. The enforcement issues relate generally to what constitutes a violation of an emission limitation in a SIP, who may seek to enforce against a source for that violation, and whether the violator should be subject to monetary penalties as well as other forms of judicial relief for that violation.

The EPA has a longstanding interpretation of the CAA with respect to the treatment of excess emissions during periods of SSM in SIPs. This statutory interpretation has been expressed, reiterated and elaborated upon in a series of guidance documents issued in 1982, 1983, 1999 and 2001. In addition, the EPA has applied this interpretation in individual rulemaking actions in which the EPA: (i) Approved SIP submissions that were consistent with the EPA's interpretation; [14] (ii) disapproved SIP submissions that were not consistent with this interpretation; [15] (iii) itself promulgated regulations in FIPs that were consistent Start Printed Page 33850with this interpretation; [16] or (iv) issued a SIP call requiring a state to revise an impermissible SIP provision.[17]

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

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

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

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

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

A. What the Petitioner Requested

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

The Petitioner requested that the EPA rescind its SSM Policy element interpreting the CAA to allow SIPs to include affirmative defenses for violations due to excess emissions during any type of SSM events because the Petitioner contended there is no legal basis for the Agency's interpretation. Specifically, the Petitioner cited to two statutory grounds, CAA sections 113(b) and 113(e), related to the type of judicial relief available in an enforcement proceeding and to the factors relevant to the scope and availability of such relief, that the Petitioner claimed would bar the approval of any type of affirmative defense provision in SIPs. The Petitioner drew no distinction between affirmative defense provisions for malfunctions versus affirmative defense provisions for startup and shutdown or other normal modes of operation; in the Petitioner's view all are equally inconsistent with CAA requirements.

In the Petitioner's view, the CAA “unambiguously grants jurisdiction to the district courts to determine penalties that should be assessed in an enforcement action involving the violation of an emissions limit.” [26] The Petitioner first argued that in any judicial enforcement action in a district court, CAA section 113(b) provides that “such court shall have jurisdiction to restrain such violation, to require compliance, to assess such penalty, . . . and to award any other appropriate relief.” The Petitioner reasoned that the EPA's SSM Policy is therefore fundamentally inconsistent with the CAA because it purports to remove the discretion and authority of the district courts to assess monetary penalties for violations if a source is shielded from monetary penalties under an affirmative defense provision in the approved SIP.[27] The Petitioner concluded that the EPA's interpretation of the CAA in the SSM Policy element allowing any affirmative defenses is impermissible “because the inclusion of an affirmative defense provision in a SIP limits the courts' discretion—granted by Congress—to assess penalties for Clean Air Act violations.” [28]

Start Printed Page 33851

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

B. What the EPA Proposed

In the February 2013 proposal, consistent with its interpretation of the Act at that time, the EPA proposed to deny in part and to grant in part the Petition with respect to this overarching issue. As a revision to the SSM Policy as embodied in the 1999 SSM Guidance, the EPA proposed a distinction between affirmative defenses for unplanned events such as malfunctions and planned events such as startup and shutdown. The EPA explained the basis for its initial proposed action in detail, including why the Agency then believed that there was a statutory basis for narrowly drawn affirmative defense provisions that met certain criteria applicable to malfunction events but no such statutory basis for affirmative defense provisions applicable to startup and shutdown events. In the February 2013 proposal, the EPA also proposed to deny in part and to grant in part the Petition with respect to specific affirmative defense provisions in the SIPs of various states identified in the Petition consistent with that interpretation. With respect to these specific existing SIP provisions, the EPA distinguished between those provisions that were consistent with the Agency's interpretation of the CAA as set forth in 1999 SSM Guidance and were limited to malfunction events and other affirmative defense provisions that were not limited to malfunctions or otherwise not consistent with the Agency's interpretation of the CAA and included one or more deficiencies.

Subsequent to the February 2013 proposal, however, a judicial decision by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in NRDC v. EPA concerning the legal basis for affirmative defense provisions in the EPA's own regulations caused the Agency to reconsider the legal basis for any affirmative defense provisions in SIPs, regardless of the type of events to which they apply, the criteria they may contain or the types of judicial remedies they purport to limit or eliminate.[32] Thus, the EPA issued an SNPR to revise its proposed response to the Petition with respect to whether affirmative defense provisions in SIPs are consistent with fundamental legal requirements of the CAA.[33] In the SNPR, the EPA also revised its proposed response related to each of the specific affirmative defense provisions identified in the Petition. Changes to the proposed response included revision of the basis for the proposed finding of substantial inadequacy for many of the provisions (to incorporate the EPA's revised interpretation of the CAA into that basis). Other changes to the proposed response included reversal of the proposed denial of the Petition for some provisions that the Agency previously believed to be consistent with CAA requirements but subsequently determined were not authorized by the Act under the analysis prompted by the NRDC v. EPA decision. In order to provide comprehensive guidance to all states concerning affirmative defense provisions in SIPs and to avoid confusion that may arise due to recent court decisions relevant to such provisions under the CAA, the EPA also addressed additional existing SIP affirmative defense provisions of which it was aware although the provisions were not specifically identified in the Petition. The EPA initially examined the specific affirmative defense provisions identified by the Petitioner in 14 states but subsequently broadened its review to include additional provisions in four states, including two states that were not included in the Petition. Most importantly, the EPA provided a detailed explanation in the SNPR as to why it now believes that the logic of the court in the NRDC v. EPA decision vacating the affirmative defense in an Agency emission limitation under CAA section 112 likewise extends to affirmative defense provisions in SIPs.

C. What Is Being Finalized in This Action

The EPA is taking final action to grant the Petition on the request to rescind its SSM Policy element that interpreted the CAA to allow states to elect to create affirmative defense provisions in SIPs. The EPA is also taking final action to grant the Petition on the request to make a finding of substantial inadequacy and to issue SIP calls for specific existing SIP provisions that include an affirmative defense as identified in the SNPR. The specific SIP provisions at issue are discussed in section IX of this document. These existing affirmative defense provisions include some provisions that the EPA had previously determined were consistent with the CAA as interpreted in the 1999 SSM Guidance and other provisions that were not consistent even with that interpretation of the CAA. As explained in the SNPR, the EPA has now concluded that the enforcement structure of the CAA, embodied in section 113 and section 304, precludes any affirmative defense provisions that would operate to limit a court's jurisdiction or discretion to determine the appropriate remedy in an enforcement action. These provisions are not appropriate under the CAA, no matter what type of event they apply to, what criteria they contain or what forms of remedy they purport to limit or eliminate.

The EPA is revising its interpretation of the CAA with respect to affirmative defenses based upon a reevaluation of the statutory provisions that pertain to enforcement of SIP provisions in light of recent court opinions. Section 113(b) provides courts with explicit jurisdiction to determine liability and to impose remedies of various kinds, including injunctive relief, compliance orders and monetary penalties, in judicial enforcement proceedings. This grant of jurisdiction comes directly from Congress, and the EPA is not authorized to alter or eliminate this jurisdiction under the CAA or any other law. With respect to monetary penalties, CAA section 113(e) explicitly includes the factors that courts and the EPA are required to consider in the event of judicial or administrative enforcement for violations of CAA requirements, including SIP provisions. Because Congress has already given federal courts the jurisdiction to determine Start Printed Page 33852what monetary penalties are appropriate in the event of judicial enforcement for a violation of a SIP provision, neither the EPA nor states can alter or eliminate that jurisdiction by superimposing restrictions on that jurisdiction and discretion granted by Congress to the courts. Affirmative defense provisions by their nature purport to limit or eliminate the authority of federal courts to determine liability or to impose remedies through factual considerations that differ from, or are contrary to, the explicit grants of authority in section 113(b) and section 113(e). Accordingly, pursuant to section 110(k) and section 110(l), the EPA cannot approve any such affirmative defense provision in a SIP. If such an affirmative defense provision is included in an existing SIP, the EPA has authority under section 110(k)(5) to require a state to remove that provision.

States have great discretion in how to devise SIP provisions, but they do not have discretion to create provisions that contradict fundamental legal requirements of the CAA. The jurisdiction of federal courts to determine liability and to impose statutory remedies for violations of SIP emission limitations is one such fundamental requirement. The court in the recent NRDC v. EPA decision did not remand the regulation to the EPA for better explanation of the legal basis for an affirmative defense; the court instead vacated the affirmative defense and indicated that there could be no valid legal basis for such a provision because it contradicted fundamental requirements of the CAA concerning the jurisdiction of courts in judicial enforcement of CAA requirements. A more detailed explanation of the EPA's basis for determining that affirmative defense provisions in SIPs are similarly contrary to the requirements of the CAA appears in the SNPR.[34]

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

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

Similarly, the absence of an affirmative defense provision in a SIP does not alter the legal rights of sources under the CAA. In the event of an enforcement action for an exceedance of a SIP emission limit, a source can elect to assert any common law or statutory defenses that it determines is supported, based upon the facts and circumstances surrounding the alleged violation. Under section 113(b), courts have explicit authority to impose injunctive relief, issue compliance orders, assess monetary penalties or fees and impose any other appropriate relief. Under section 113(e), courts are required to consider the enumerated statutory factors when assessing monetary penalties, including “such other factors as justice may require.” For example, if the exceedance of the SIP emission limitation occurs due to a malfunction, that exceedance is a violation of the applicable emission limitation, but the source retains the ability to defend itself in an enforcement action and to oppose the imposition of particular remedies or to seek the reduction or elimination of monetary penalties, based on the specific facts and circumstances of the event. Thus, elimination of a SIP affirmative defense provision that purported to take away the statutory jurisdiction of the court to exercise its authority to impose remedies does not disarm sources in potential enforcement actions. Sources retain all of the equitable arguments they could previously have made under an affirmative defense provision; they must simply make such arguments to the reviewing court as envisioned by Congress in section 113(b) and section 113(e). Congress vested the courts with the authority to judge how best to weigh the evidence in an enforcement action and determine appropriate remedies.

Removal of such impermissible SIP affirmative defense provisions is necessary to preserve the enforcement structure of the CAA, to preserve the jurisdiction of courts to adjudicate questions of liability and remedies in judicial enforcement actions and to preserve the potential for enforcement by states, the EPA and other parties under the citizen suit provision as an effective deterrent to violations. In turn, this deterrent encourages sources to be properly designed, maintained and operated and, in the event of violation of SIP emission limitations, to take appropriate action to mitigate the impacts of the violation. In this way, as intended by the existing enforcement structure of the CAA, sources can mitigate the potential for enforcement actions against them and the remedies Start Printed Page 33853that courts may impose upon them in such enforcement actions, based upon the facts and circumstances of the event.

D. Response to Comments Concerning Affirmative Defense Provisions in SIPs

The EPA received numerous comments concerning the portion of the Agency's proposed response to the Petition in the February 2013 proposal that addressed the question of whether affirmative defense provisions are consistent with CAA requirements for SIPs. As explained in the SNPR, those particular comments submitted on the original February 2013 proposal are no longer germane, given that the EPA has substantially revised its initial proposed action on the Petition and its basis, both with respect to the overarching issue of whether such provisions are valid in SIPs under the CAA and with respect to specific affirmative defense provisions in existing SIPs of particular states. Accordingly, as the EPA indicated in the SNPR, it considers those particular comments on the February 2013 proposal no longer relevant and has determined that it is not necessary to respond to them. Concerning affirmative defense provisions, the appropriate focus of this rulemaking is on the comments that addressed the EPA's revised proposal in the SNPR.

With respect to the revised proposal concerning affirmative defense provisions in the SNPR, the EPA received numerous comments, some supportive and some critical of the Agency's proposed action on the Petition as revised in the SNPR. Many of these comments raised conceptual issues and arguments concerning the EPA's revised interpretation of the CAA with respect to affirmative defense provisions in SIPs in light of the NRDC v. EPA decision and concerning the EPA's application of that interpretation to specific affirmative defense provisions discussed in the SNPR. For clarity and ease of discussion, the EPA is responding to these overarching comments, grouped by issue, in this section of this document.

1. Comments that the EPA is misapplying the decision of the D.C. Circuit in NRDC v. EPA to SIP provisions because the decision only applies to the Agency's own regulations pursuant to CAA section 112.

Comment: Many commenters stated that the EPA's reliance on the D.C. Circuit's decision in NRDC v. EPA is misplaced in the SNPR because the opinion is limited to disapproval of a Maximum Achievable Control Technology (MACT) standard's affirmative defense for unavoidable malfunctions. The commenters noted that the NRDC v. EPA decision did not address the issue of affirmative defense provisions in SIPs. The commenters argued that the D.C. Circuit's opinion only stands for the narrow proposition that the EPA may not include an affirmative defense to civil penalties in a NESHAP [37] under CAA section 112.

One commenter noted that the EPA, in the SNPR, stated that the NRDC v. EPA decision did not turn on any factors specific to CAA section 112 as support for the EPA applying the decision to SIPs. However, the commenter argued that this fact is not probative because neither party raised any argument specific to CAA section 112 and it is reasonable for a court to limit its analysis to the arguments presented before it.

One commenter also noted that the EPA is not bound to apply D.C. Circuit law to actions reviewable in other circuits.

Response: As explained in the SNPR, the EPA believes the reasoning of the court in the NRDC v. EPA decision indicates that states, like the EPA, have no authority in SIP provisions to alter the jurisdiction of federal courts to assess penalties for violations of CAA requirements through affirmative defense provisions.[38] If states lack authority under the CAA to alter the jurisdiction of the federal courts through affirmative defense provisions in SIPs, then the EPA lacks authority to approve any such provision in a SIP.

The EPA agrees with the commenters' statement that the NRDC v. EPA decision pertained to a challenge to the EPA's NESHAP regulations issued pursuant to CAA section 112 to regulate hazardous air pollutants (HAPs) from sources that manufacture Portland cement. However, the EPA disagrees with the commenters' contention that, because the NRDC v. EPA decision was based on a NESHAP, it is somehow inappropriate for the EPA to rely on the reasoning of the D.C. Circuit's decision as a basis for this action.

As acknowledged by a commenter, the EPA explained in the SNPR that the NRDC v. EPA decision did not turn on the specific provisions of CAA section 112.[39] However, the commenter missed the importance of this point. Although the NRDC v. EPA decision analyzed the legal validity of an affirmative defense provision created by the EPA in conjunction with a specific NESHAP, the court based its decision upon the provisions of sections 113 and 304. Sections 113 and 304 pertain to enforcement of the CAA requirements more broadly, including to enforcement of SIP requirements. The court addressed section 112 and not sections germane specifically to SIPs, as only that section was before it. The EPA has applied the NRDC court's analysis to sections 113 and 304 with respect to SIPs and has concluded that the NRDC court's analysis is the better reading of the statutory provisions.

The affirmative defense provision in the Portland Cement NESHAP required the source to prove, by a preponderance of the evidence in an enforcement proceeding, that the source met specific criteria concerning the nature of the event. These specific criteria required to establish the affirmative defense in the Portland Cement NESHAP are functionally the same as the criteria that the EPA previously recommended to states for SIP provisions in the 1999 SSM Guidance and that the EPA repeated in the February 2013 proposal document. Accordingly, the EPA believes that the opinion of the court in NRDC v. EPA has significant impacts on the Agency's SSM Policy with respect to affirmative defense provisions. The reasoning by the NRDC court, as logically extended to SIP provisions, indicates that neither states nor the EPA have authority to alter either the rights of other parties to seek relief or the jurisdiction of federal courts to impose relief for violations of CAA requirements in SIPs. The EPA believes that the court's decision in NRDC v. EPA compelled the Agency to reevaluate its interpretation of the CAA as described in the SNPR.

The EPA also disagrees with commenters who suggested that a decision of the D.C. Circuit should have no bearing on actions that affect states in other circuit courts. The CAA vests authority with the D.C. Circuit to review nationally applicable regulations and any action of nationwide scope or effect. Accordingly, any decision of the D.C. Circuit in conducting such review is binding nationwide with respect to the action under review, and the D.C. Circuit's reasoning is also binding with respect to review of future EPA actions raising the same issues that will be subject to review within that Circuit. Given that the EPA has determined that this action has nationwide scope and effect, it is subject to exclusive review in the D.C. Circuit, so the EPA believes it is appropriate to apply the reasoning Start Printed Page 33854of the NRDC court, which interprets CAA sections 113 and 304, to determine the legality of affirmative defense provisions in this national action.[40]

2. Comments that the EPA is misapplying the decision of the D.C. Circuit in NRDC v. EPA to SIP provisions because the court did not address the legality of affirmative defense provisions in SIPs.

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

Response: The EPA disagrees that the footnote relied upon by commenters renders application of the legal interpretation of the NRDC court to SIP provisions improper. The EPA specifically acknowledged and discussed the footnote in the NRDC v. EPA decision in the SNPR. The EPA explained its view of the significance of the footnote: “footnote 2 in the opinion does not signify that the court intended to take any position with respect to the application of its interpretation of the CAA to SIP provisions, let alone to suggest that its interpretation would not apply more broadly.” As discussed in the SNPR in detail, the EPA believes the logic of the court's decision in NRDC v. EPA regarding the interpretation of sections 113 and 304 concerning affirmative defenses does extend to SIP provisions.

3. Comment that the EPA is inappropriately relying on the NRDC v. EPA decision because the DC Circuit's decision was decided in error.

Comment: One commenter alleged that the EPA's reliance on the NRDC v. EPA decision is misplaced because the court in that decision mistakenly relied on section 304(a) when holding that the EPA cannot restrict the jurisdiction of the courts with affirmative defense provisions. The commenter alleged that Congress did not intend to give the judiciary “fully-unfettered discretion” in section 304(a) because such a reading cannot be squared with section 304(b), which provides that “[n]o action can be commenced . . . if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States.”

Response: The EPA does not agree with the commenter's premise that the NRDC court erred by not considering section 304(b) as well as section 304(a). As the court correctly reasoned, section 304(a) authorizes any person to bring an enforcement action for violations of emission limitations. Section 304(f) defines the term “emission limitation” for this purpose very broadly. Section 304(b) does not alter the rights of any person who has given proper notice to bring such an action under section 304(a), unless the EPA or the state is diligently prosecuting a civil action to require compliance. The fact that section 304(b) limits the ability of any person to bring an enforcement action (as opposed to intervening in such action) if the EPA or the state is pursuing enforcement has no bearing upon whether the EPA or a state could seek to alter or eliminate the jurisdiction of the courts to determine liability or to impose remedies for violations of SIP emission limitations in judicial enforcement. The EPA also does not believe that this rulemaking is the appropriate forum in which to challenge the court's decision.

4. Comments that the court's reasoning in the NRDC v. EPA decision does not apply to affirmative defenses in SIP provisions because if a source qualifies for an affirmative defense, then there has been no violation.

Comment: Several commenters stated that the D.C. Circuit's analysis in the NRDC v. EPA opinion is based on statutory language that indicates Congress intended the courts, not the EPA, to decide what constitutes an appropriate penalty once a violation has occurred. The commenters argued that if a SIP provision contains an affirmative defense, and if a source meets the requirements to qualify for that affirmative defense, then there is no violation of the SIP requirements. One commenter contended that if there is no violation, then the courts have no jurisdiction to award any remedies and thus there can be no concern that the affirmative defense provision alters or eliminates the jurisdiction of the courts. Another commenter argued that affirmative defense provisions in the context of a SIP can be described as limitations on the application of an emission limitation to the conditions under which the emission reduction technology can be effectively operated. The commenters stated that the NRDC court did not address the EPA's or states' authority to establish requirements that determine, in the first instance, whether a violation has occurred.

Response: The EPA disagrees with the commenters' arguments that affirmative defense provisions are appropriate in SIPs if they merely define what constitutes a violation. As explained in detail in the SNPR, the EPA believes that SIP provisions with affirmative defenses that operate to limit or eliminate the jurisdiction of the courts to determine liability and to impose remedies are not consistent with CAA requirements. Under the commenters' theory, such provisions would not improperly impinge on the jurisdiction of the courts to impose remedies for violations by redefining what constitutes a “violation.”

First, the EPA does not agree that all affirmative defense provisions in the SIPs at issue in this action are constructed in this way. Some, including those that the EPA previously approved as consistent with the Agency's 1999 SSM Guidance, explicitly provide that the excess emissions that occur are still violations, but a source could be excused from monetary penalties if the source met the criteria for the affirmative defense. Under the EPA's prior interpretation of the CAA, the legal basis for any affirmative defense started with the fact that the excess emissions still constituted a violation and injunctive relief would still be available as appropriate. As explained in the SNPR and this document, the EPA no longer interprets the CAA to allow even narrowly drawn affirmative defense provisions in SIPs, let alone those advocated by the commenters that would provide a complete bar to any type of judicial remedy provided for in section 113(b).

Second, even if a specific affirmative defense provision were worded in the way that the commenters' claim, then that provision would be deficient for other reasons. Under the commenters' premise, if certain criteria are met then there is no “violation” for excess emissions during SSM events. The EPA's view is that this formulation of an affirmative defense in effect means that there is no emission limitation that applies when the criteria are met, i.e., the affirmative defense operates to create a conditional exemption for emissions from the source during SSM events. Such an approach would be inconsistent with the decision in Sierra Club v. Johnson concerning the term “emission limitation” in section 302(k).[42] Exemptions for emissions during SSM events, whether automatic Start Printed Page 33855or conditional based upon the criteria of an affirmative defense, are inconsistent with the requirement for continuous controls on sources.

Finally, the EPA believes that the commenters' premise that an affirmative defense provision merely defines what a violation is also runs afoul of other fundamental requirements for SIP provisions. To the extent any such provision would allow state personnel to decide, unilaterally, whether excess emissions during an SSM event constitute a violation (e.g., through application of an “affirmative defense”), this would interfere with the ability of the EPA or other parties to enforce for violations of SIP requirements. The EPA interprets the CAA to prohibit SIP provisions that impose the enforcement discretion decisions of a state on other parties. This includes provisions that are structured or styled as an affirmative defense but in effect allow ad hoc conditional exemptions from emission limitations and preclude enforcement for excess emission during SSM events.

5. Comments that the NRDC v. EPA decision, which concerned an emission limitation under section 112, does not apply in the context of section 110, because section 110 affords states flexibility in how to develop emission limitations in SIP provisions.

Comment: Commenters argued that the EPA's extension of the logic of the NRDC v. EPA decision to affirmative defenses in SIP provisions is incorrect because the EPA's NESHAP standards are governed by section 112, whereas SIP provisions are governed by section 110. Under the latter, commenters asserted, states are afforded wide discretion in how to develop emission limitations.[43] The commenters stated that section 110 governs the development of state SIPs to satisfy the NAAQS, which may address many different types of sources, major and minor, industrial and non-industrial, small and large, and old and new. The commenters alleged that states have independent authority to include affirmative defenses in SIP provisions, so long as the provisions are otherwise approvable, because the state has met its section 110 planning responsibilities and the SIP is enforceable.

Response: The EPA agrees with the commenters that section 110 governs the development of state SIPs and that states are accorded great discretion in determining how to meet CAA requirements in SIPs. However, as explained in the February 2013 proposal, the SNPR and sections IV.D.13 and V.D.2 of this document, states are obligated to develop SIP provisions that meet fundamental CAA requirements. The EPA has the responsibility to review SIP provisions developed by states to ensure that they in fact meet fundamental CAA requirements. As explained in the SNPR and this document, the EPA no longer believes that affirmative defense provisions meet CAA requirements. Based on the logic of the court in the NRDC v. EPA decision, the better reading of the statute is that such provisions have the effect of limiting or eliminating the statutory jurisdiction of the courts to determine liability or impose remedies.

The EPA also disagrees with the commenters' arguments that “emission limitations” under section 112 and section 110 are not comparable with respect to meeting fundamental CAA requirements. As an initial matter, both section 112 MACT standards and section 110 SIP emission limitations can be composed of various elements that include, among other things, numerical emission limitations, work practice standards and monitoring and recordkeeping requirements. However, whether there are other components that are part of the emission limitation to make it apply continuously is not relevant for purposes of determining whether an affirmative defense provision that provides relief from penalties for a violation of either a MACT standard under section 112 or a SIP provision under section 110 is consistent with the CAA.

As explained in the SNPR, the EPA has revised its interpretation of the CAA with respect to affirmative defense provisions in SIPs, based upon the logic of the court in the NRDC v. EPA decision. Section 304(a) sets forth the basis for a civil enforcement action and section 113(a)(1) does the same for administrative or judicial enforcement actions brought by the EPA. Sections 113(b) and 304(a) provide the federal district courts with jurisdiction to hear civil enforcement cases. Furthermore, section 113(e) confers jurisdiction on the district court in a civil enforcement case to determine the amount of penalty to be assessed where a violation has been established.

6. Comments that the NRDC v. EPA decision does not pertain to the appropriateness of affirmative defense provisions in the context of state administrative or civil enforcement.

Comment: Some commenters noted that the NRDC court only reviewed whether affirmative defense provisions could be used to limit CAA citizen suit remedies in judicial enforcement actions. The commenters alleged that the use of an affirmative defense in a citizen suit under federal regulations does not dictate the appropriateness of similar provisions in the context of state administrative or civil actions. According to the commenters, a SIP represents an air quality management system and the state administrative process is distinct from federal citizen suits. Similarly, the commenters believed that SIP emission limitations are enforceable via state regulation penalty provisions that are separate from the CAA civil penalty provisions. Because the NRDC court spoke only to the appropriateness of affirmative defense provisions in the context of federal citizen suits, the commenters asserted, the decision is inapplicable in the EPA's SIP call action.

Response: The EPA agrees that the court in the NRDC v. EPA decision did not speak directly to the issue of whether states can establish affirmative defenses to be used by sources exclusively in state administrative enforcement actions or in judicial enforcement in state courts. The reasoning of the NRDC court indicates only that such provisions would be inconsistent with the CAA in the context of judicial enforcement of SIP requirements in federal court. Indeed, the NRDC court suggested that if the EPA elected to consider factors comparable to the affirmative defense criteria in its own administrative enforcement proceedings, it may be able to do so. The implication of the commenters, however, is that the EPA should interpret the CAA to allow affirmative defenses in SIP provisions, so long as it is unequivocally clear that sources cannot assert the affirmative defenses in federal court enforcement actions and cannot assert the affirmative defenses in enforcement actions brought by any party other than the state.

The EPA of course agrees that states can exercise their own enforcement discretion and elect not to bring an enforcement action or seek certain remedies, using criteria analogous to an affirmative defense. It does not follow, however, that states can impose this enforcement discretion on other parties by adopting SIP provisions that would apply in federal judicial enforcement, or in enforcement brought by the EPA or other parties. To the extent that the state developed an “enforcement discretion” type provision that applied only in its own administrative enforcement actions or only with respect to enforcement actions brought by the state in state courts, such a provision may be appropriate. This authority is not unlimited because the state could not create affirmative defense provision that in effect undermines its legal authority Start Printed Page 33856to enforce SIP requirements. Section 110(a)(2)(C) requires states to have a program that provides for enforcement of the state's SIP, and enforcement discretion provisions that unreasonably limit the state's own authority to enforce the requirements of the SIP would be inconsistent with section 110(a)(2)(C). The EPA's obligations with respect to SIPs include determining whether states have adequate enforcement authority.

7. Comments that the EPA's proposal is inappropriate because it runs counter to previous court decisions, including the decision of the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) in Luminant Generation v. EPA.

Comment: Many commenters on the SNPR argued that the decision of the Fifth Circuit in Luminant Generation v. EPA precludes the EPA's proposed action concerning affirmative defenses in SIP provisions, in general and with respect to the provisions in the Texas SIP in particular. The commenters noted that the court upheld the EPA's approval of an affirmative defense provision for unavoidable excess emissions during unplanned SSM events in the Texas SIP.[44] The commenters argued that the Fifth Circuit ruled that in approving the Texas SIP affirmative defense provision, the EPA “acted neither contrary to law nor in excess of its statutory authority.” [45] According to the commenters, the court specifically considered and rejected arguments by litigants concerning sections 113 and 304. Some commenters argued that the court also considered and “decisively rejected” the legal arguments articulated by the EPA in the SNPR. The commenters alleged that the Luminant Generation v. EPA decision demonstrates that affirmative defenses for malfunctions are permissible in SIP provisions. The commenters contended that, because the Fifth Circuit in Luminant Generation v. EPA specifically considered whether an affirmative defense provision applicable to malfunctions included in a SIP violates the CAA, unlike the D.C. Circuit in NRDC v. EPA, the EPA should follow the Luminant Generation v. EPA decision rather than the D.C. Circuit decision in NRDC v. EPA.

Some commenters also pointed out that the D.C. Circuit, in the recent NRDC v. EPA decision, mentioned and cited the Luminant Generation v. EPA opinion and did not expressly disagree with the Fifth Circuit's holding. One commenter noted that if the NRDC court believed that the issue it was deciding was the same as the issue decided in Luminant Generation v. EPA, the D.C. Circuit would have explicitly stated that it was declining to follow the Fifth Circuit on the issue instead of acknowledging that the issue upon which the Fifth Circuit ruled was not before the D.C. Circuit.

Several commenters also argued that, because the Fifth Circuit previously determined in Luminant Generation v. EPA that the Texas SIP affirmative defense provision at issue in this SIP call action is consistent with CAA sections 113 and 304, the EPA does not have any legal authority under the CAA to finalize the action proposed in SNPR. Some commenters further stated that the EPA lacks authority to disagree with the Fifth Circuit's determination of the law as applied to a state within the Fifth Circuit's jurisdiction. These commenters believed that if the EPA were to finalize the action discussed in the SNPR with respect to the affirmative defense for malfunctions in the Texas SIP, this action would violate the mandate rule. Some commenters also alleged that courts outside the Fifth Circuit, including the D.C. Circuit, will apply principles of claim preclusion, or res judicata, to give effect to the Fifth Circuit's prior adjudication on the legal basis for the affirmative defense in the Texas SIP. One commenter claimed that the EPA's “failure” to address how the holdings in Luminant Generation v. EPA will no longer apply and how the EPA is exempt from the court's mandate render the theories presented in the SNPR unsupported as a basis for the SIP call action.

Some commenters alleged that the EPA is bound by its own prior representations before the Fifth Circuit, in which it asserted and defended its approval of the affirmative defense provision for malfunctions in the Texas SIP, under the doctrine of judicial estoppel.[46] Similarly, the commenters alleged that under the doctrine of issue preclusion, or collateral estoppel, the EPA is precluded from re-litigating the issues previously considered and determined by the Fifth Circuit, regardless of where any subsequent challenge to this final action is brought.

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

Response: The EPA disagrees with the commenters' arguments concerning the application of the court's decision in Luminant Generation v. EPA to this SIP call action. As explained in the SNPR, the EPA acknowledges that it has previously approved affirmative defenses in SIP provisions or, when appropriate, promulgated affirmative defenses in FIPs. The EPA also acknowledged that its approval of an affirmative defense provision applicable to “unplanned events” (i.e., malfunctions) in a Texas SIP submission was upheld in 2012 by the U.S. Court of Appeals for the Fifth Circuit. In that litigation, the EPA argued that sections 113 and 304 do not preclude appropriately drawn affirmative defense provisions for malfunctions in SIPs. Importantly, in upholding the EPA's approval of the affirmative defense, the Fifth Circuit determined that Chevron step 1 was not applicable to this case and “turn[ed] to step two of Chevron” [48] in holding that the Agency's interpretation of the CAA at that time was a “permissible interpretation of section [113], warranting deference.” [49] The Fifth Circuit did not determine that the EPA's interpretation at the time of the Luminant Generation v. EPA decision was the only or even the best permissible interpretation. It is clearly within the EPA's legal authority to now revise its interpretation to a different, but still permissible, interpretation of the statute.[50] The EPA has explained at length in the SNPR, and elsewhere in this final rulemaking, its reasons for changing its previous interpretation of Start Printed Page 33857the CAA to permit narrowly drawn affirmative defenses applicable only to penalties and has explained why it now believes that the reasoning of the court in the NRDC v. EPA decision is the better reading of the CAA.

Some commenters allege that the Fifth Circuit considered and rejected the legal arguments articulated by the EPA in the SNPR to support the Agency's new interpretation that affirmative defenses in SIP provisions are inconsistent with the Act. The EPA disagrees with commenters' assertions. As explained above, in the Luminant Generation v. EPA decision the Fifth Circuit analyzed the EPA's former interpretation of the CAA under step 2 of Chevron and found that the Agency's position was reasonable. The Fifth Circuit held that the CAA did not dictate the outcome put forth by environmental petitioners in the Luminant Generation v. EPA case; the court did not hold that the Agency could not reasonably interpret the CAA provisions at issue to come to the new position articulated in the SNPR and other sections of this document. In fact, the Fifth Circuit upheld the EPA's reading of the statute to preclude affirmative defense provisions for planned events in the same decision as a reasonable interpretation of the CAA.

In the SNPR, the EPA also addressed the discussion in the NRDC v. EPA decision that referred to the earlier Luminant Generation v. EPA decision and explained its view that the court in NRDC v. EPA did not suggest that its interpretation of the CAA would not apply more broadly to SIP provisions. Rather, the court simply declined to address that issue. As to commenters' allegation that the EPA should follow the Luminant court's reasoning because that court addressed the specific issue of affirmative defenses in SIP provisions, the EPA has explained in detail in the SNPR and section IV.D.1 of this document why it now believes that the NRDC court's reasoning is applicable here and why it believes this is the better interpretation of sections 113 and 304.

The EPA acknowledges that other circuit courts have also upheld affirmative defense provisions promulgated by the Agency in FIPs.[51] Those decisions were also based upon an interpretation of the CAA that the Agency no longer holds. The EPA further notes that the affirmative defense provisions at issue in the other court decisions cited by the commenters are not at issue in this action. However, the EPA may elect to address these provisions in a separate rulemaking.

The EPA also disagrees with commenters' allegations that this final SIP call action violates the mandate rule. The mandate rule generally governs how a lower court handles a higher court's decision on remand. The Agency believes that the mandate rule is inapplicable here. Similarly, the Agency believes that the principles of res judicata, judicial estoppel and collateral estoppel (issue preclusion) raised by commenters are all inapplicable in this situation. For reasons the EPA has fully explained in this rulemaking, the Agency is adopting a revised interpretation of the CAA. This necessarily changes the issues or claims that may be raised in any future litigation concerning the Agency's action here or subsequent Agency actions taken pursuant to this changed interpretation. As noted previously, the Agency's ability to change its interpretation of the statute is well established, even if courts have previously upheld the Agency's former interpretation as reasonable under step 2 of the Chevron analysis.

8. Comments that affirmative defense provisions are needed or appropriate because sources cannot control malfunctions or the excess emissions that occur during them.

Comment: Several commenters claimed that by requiring states to remove affirmative defense provisions, the EPA will create a situation where sources have no potential relief from liability for exceedances resulting from excess emissions during malfunctions. The commenters argued that this will effectively expose sources to penalties for emissions that are not within the sources' control. The commenters alleged that the EPA's proposal is unreasonable because it fails to consider the infeasibility of controlling emissions during malfunction periods. The commenters believe that because malfunction events are uncontrollable by definition, removing affirmative defense provisions applicable to malfunctions will not reduce emissions but instead will only expose facilities to potential enforcement for uncontrollable exceedances.

Response: The EPA disagrees that without affirmative defense provisions, sources will have no “relief” from liability for violations during actual malfunctions. To the extent that sources have an actual malfunction, sources retain the ability to raise this fact in the event of an enforcement action related to the malfunction. Congress has already provided courts with explicit jurisdiction and authority to determined liability and to impose appropriate remedies, based on the facts and circumstances surrounding the violation. To the extent that there are extenuating circumstances that justify not holding a source responsible for a violation or not imposing particular remedies as a result of a violation, sources retain the ability to raise these facts to the court. In addition, the absence of an affirmative defense provision in the SIP does not impede a violating source from taking appropriate actions to minimize emissions during a malfunction, so as to mitigate the potential remedies that a court may impose as a result of the violation.

Furthermore, the EPA disagrees with the commenters' premise that states have authority to create affirmative defense provisions in SIPs because some sources may otherwise be subject to enforcement actions for emissions during malfunctions. As explained in the SNPR in detail, the EPA has concluded that there is no legal basis for affirmative defenses in SIP provisions, including affirmative defenses applicable to malfunction events. Because such affirmative defense provisions purport to alter or eliminate the statutory jurisdiction of courts to determine liability and to assess appropriate remedies for violations of SIP requirements, these provisions are not permissible.

9. Comments that there will not be any reduction in overall emissions from the EPA's SIP call action because states will need to revise emission limitations to allow more emissions if affirmative defense provisions are removed from the SIPs.

Comment: Commenters on the SNPR questioned whether the elimination of affirmative defenses in SIP provisions would result in any reductions of emissions from sources. Several commenters asserted that affirmative defense provisions allow states to lower emission limitations overall. Thus, the commenters claimed that elimination of the affirmative defense provisions would obligate states to raise affected emission limitations so that sources could comply with them continuously. Another commenter criticized the EPA's approach as requiring each state to reframe the existing episodic emissions provisions of its SIP as alternative emission limitations rather than as more limited and conditional affirmative defenses. This commenter asserted that structuring the provisions as an affirmative defense allows a state to impose more stringent numerical limitations without penalizing sources for unavoidable emissions when those Start Printed Page 33858emissions do not compromise the underlying air quality objectives.

Several commenters also disagreed with the EPA's belief that removal of affirmative defense provisions would reduce emissions. One commenter noted that some affirmative defense provisions require a source to evaluate impacts on NAAQS compliance as part of asserting the affirmative defense; the commenter contended that forgoing these provisions would thus reduce the incentive for owners and operators to minimize emissions during malfunctions so that they could qualify for the affirmative defense. Several commenters noted that many sources immediately investigate excess emissions events and implement measures intended to prevent recurrence. Nevertheless, those commenters asserted that because malfunction events are uncontrollable by definition, removing an affirmative defense applicable to malfunctions will not reduce emissions. Commenters also argued that an assumption that elimination of the affirmative defense provisions will reduce emissions is flawed because, given the stringent applicability criteria for a “narrowly drawn” affirmative defense, a facility has no assurance that an affirmative defense will apply to any particular malfunction event and that even if the affirmative defense was available, it would not shield the facility from compliance orders or other injunctive relief (or from criminal prosecution).

Response: The commenters' arguments concerning whether elimination of affirmative defense provisions will or will not reduce emissions during SSM events and will or will not reduce incentives for sources to minimize emissions during SSM events do not address the legal basis for any such affirmative defense provisions. As the commenters correctly observed, the EPA's 1999 SSM Guidance reflected the Agency's prior interpretation of the CAA to permit such affirmative defense provisions, so long as they were sufficiently narrowly drawn, applied only to monetary penalties and required the source to prove that it met the applicable criteria to the trier of fact in an enforcement proceeding. The EPA's arguments for why appropriate affirmative defense provisions could be consistent with CAA requirements included that they could provide an incentive for sources to be properly designed, maintained and operated to minimize emissions at all times.

As explained in the SNPR, however, the EPA has determined that affirmative defenses are impermissible in SIP provisions because they operate to alter or eliminate the statutory jurisdiction of the courts. The EPA has reached this conclusion in light of the court's decision in NRDC v. EPA. Because affirmative defense provisions are inconsistent with the enforcement structure of the CAA, the EPA is making the finding that such provisions are substantially inadequate to meet legal requirements of the CAA. In order to make the finding that these provisions fail to meet legal requirements of the CAA, the EPA is not required to determine or estimate emission reductions that will or will not result from the removal of such provisions from the affected SIPs. The EPA believes this action is necessary to provide environmental protection. However, the EPA's obligation as a legal matter would not change even if commenters were correct in their view that emissions reductions will not result from the removal of the impermissible affirmative defense provisions. The EPA's interpretation of its authority under section 110(k)(5) is discussed in detail in section VIII.A of this document.

The EPA agrees that in response to this SIP call directing the removal of affirmative defense provisions, the affected states may elect to revise affected SIP emission limitation. In so doing, the states may determine that it is appropriate to revise the emission limitations in other respects, so long as they do so consistent with CAA requirements. For example, affected states may elect to create alternative emission limitations that apply to sources during startup and shutdown. The EPA's guidance for this approach is discussed in detail in VII.B.2 of this document. Alternatively, states may elect to overhaul an affected SIP emission limitation entirely to account for the removal of the affirmative defense in some other way. However, states will need to comply with the applicable substantive requirements for the type of SIP provision at issue and the EPA will review those SIP revisions in accordance with the requirements of the CAA, including sections 110(k)(3), 110(l) and 193.

10. Comments that the elimination of affirmative defense provisions will result in sources' facing inconsistent treatment by courts or states when excess emissions are emitted during malfunction events.

Comment: Commenters claimed that the concept and framework for affirmative defense provisions are consistent from state to state and that by removing these provisions, sources will be subject to inconsistent treatment of excess emissions during SSM in different states. The commenters noted that the EPA recognized in the February 2013 proposal and SNPR that states may elect to revise their deficient SIP provisions differently in response to the SIP call and thus the commenters expressed concern that the potential difference in treatment among states will lead to “inconsistent regulation of air pollution across the country.”

Commenters further argued that without the consistent regulatory framework provided by an affirmative defense provision, each court is likely to evaluate SSM events differently in the context of enforcement actions. The commenters suggested that allowing each court to consider the facts and circumstances of the emission event in its penalty evaluation without a governing framework could lead to inconsistent enforcement throughout the country.

Response: The EPA disagrees that it is inappropriate to allow states to determine how best to revise their SIPs in response to this SIP call, consistent with CAA requirements. As discussed in this document, and as many commenters have also noted, the structure of the CAA is based upon cooperative federalism. Under this structure, Congress gave states broad discretion to develop SIP provisions as necessary to attain and maintain the NAAQS and meet other CAA objectives, so long as the SIPs also meet statutory requirements. The very nature of the SIP program is that similar sources can be treated differently in different states, because the states have discretion with respect to developing their SIP provisions consistent with CAA requirements. Thus, whether the affirmative defense provisions at issue in this action added some level of “consistent” treatment of sources across the nation (a statement with which the EPA does not agree) is not relevant for purposes of this SIP call.[52] Rather, for the reasons explained in the SNPR and in this document, the EPA has determined that affirmative defense provisions are inconsistent with the fundamental legal requirements of the CAA. For that reason, the EPA is requiring the affected states to revise their SIPs to remove the affirmative defense provisions identified in this action. States have discretion in how Start Printed Page 33859they revise their SIPs in this context as in all other contexts.

As to the concern that different courts might evaluate liability for violations during SSM events differently in the absence of affirmative defense provisions, the EPA notes that this is not the relevant question. The potential for inconsistent treatment by the courts is not a basis for allowing states to retain SIP provisions that are inconsistent with the legal requirements of the CAA. In any event, the EPA disagrees that elimination of affirmative defenses in SIP provisions make it more likely that there would be “inconsistent enforcement” because of a lack of a “regulatory framework.” The enforcement structure of the CAA embodied in section 113 and section 304 already provides a structure for enforcement of CAA requirements in federal courts. For example, the CAA already provides uniform criteria for courts to apply, based upon the facts and circumstances of individual enforcement actions. Similar to an affirmative defense provision, section 113(e) already enumerates the factors that courts are required to consider in determining appropriate penalties for violations and thus there is a consistent statutory framework. In essence the commenters object to the fact that in any judicial enforcement case, the court will determine liability and remedies based on the facts and circumstances of the case. However, this is an inherent feature of the enforcement structure of the CAA, regardless of whether there is an affirmative defense provision at issue.

11. Comments that the EPA should have acted in a single, comprehensive rulemaking rather than issuing the supplemental notice of proposed rulemaking.

Comment: Commenters asserted that the EPA's issuance of two separate proposals instead of one proposal has prevented states and industry from knowing the entire proposed regulatory action. The commenters claimed that if the EPA is going to issue a SIP call to states concerning the treatment of emissions during SSM events, then it should do so in a single comprehensive rulemaking. The commenters argued this is necessary because states consider different options when revising SIP provisions and that thereafter states will have to work with affected sources to revise permits.

Response: The EPA disagrees with the argument that states, industry, individuals and other interested parties have not had an opportunity to know and comment upon the Agency's entire action. The EPA's February 2013 proposal was intended to cover a broad range of issues related to the correct treatment of emissions during SSM events in SIP provisions comprehensively. Because of an intervening court decision that affected the substance of the EPA's initial proposed action, it was necessary to issue a supplemental proposal. The EPA disagrees that the issuance of the SNPR adversely affected the ability of interested parties to understand the Agency's proposed action, because the SNPR only affected one aspect of the original proposed action. As the EPA explained in the SNPR: “In this SNPR, we are supplementing and revising what we earlier proposed as a response to the Petitioner's requests but only to the extent the requests narrowly concern affirmative defense provisions in the SIPs. We are not revising or seeking further comment on any other aspects of the February 2013 proposed action.” [53]

As to the commenters' concern that the EPA should take action in a single comprehensive rulemaking, the Agency is doing so. This SIP call action addresses all aspects of the Petition and it is based upon both the February 2013 proposal and the SNPR. As advocated by the commenters, the EPA's objective in this SIP call action is to provide states with comprehensive and up-to-date guidance concerning the correct treatment of emissions during SSM events in SIP provisions, consistent with CAA requirements as interpreted by recent court decisions. The EPA agrees with the commenters that providing states comprehensive guidance in this rulemaking is important to assist states in revising their SIP provisions consistent with CAA requirements. Any necessary changes to permits to reflect the removal of affirmative defense provisions from the underlying SIP will occur later, after the SIP provisions have been revised.

12. Comments that the EPA has not proven that the existence of affirmative defense provisions in SIPs is resulting in specific environmental impacts or interference with attainment and maintenance of the NAAQS.

Comment: Several commenters argued that the EPA has failed to demonstrate that the affirmative defense provisions at issue in this action have contributed to a specific NAAQS violation or otherwise caused harm to public health or the environment. The commenters contend that, because of the narrow scope of affirmative defense provisions, it is unlikely that their existence would cause or contribute to any violations of the NAAQS. Some commenters further noted that some states have experienced improved ambient air quality conditions, despite having SIPs in place with affirmative defense provisions at issue in this action.

The commenters alleged that without providing specific record-based evidence of the impacts caused by affirmative defense provisions, it is unreasonable for the EPA to determine that existing provisions are substantially inadequate or otherwise not in compliance with the CAA. Some commenters further alleged that the EPA has no authority to issue a SIP call without “find[ing] that the applicable implementation plan . . . is substantially inadequate to attain or maintain the relevant [NAAQS].”

Response: As explained in the February 2013 proposal, the SNPR and this document, the EPA does not interpret its authority under section 110(k)(5) to require proof that a deficient SIP provision caused a specific violation of the NAAQS at a particular monitor on a particular date, or that a deficient SIP provision undermined a specific enforcement action. Section 110(k)(5) explicitly authorizes the EPA to make a finding that a SIP provision is substantially inadequate to “comply with any requirement of” the CAA, in addition to the authority to do so where a SIP is inadequate to attain and maintain the NAAQS or to address interstate transport. In light of the court's decision in NRDC v. EPA, the EPA has reexamined the question of whether affirmative defenses are consistent with CAA requirements for SIP provisions. As explained in this action, the EPA has concluded that such provisions are inconsistent with the requirements of section 113 and section 304. Accordingly, the EPA has the authority to issue SIP calls to states, requiring that they revise their SIPs to eliminate the specific affirmative defense provisions identified in this action. Issues related to the EPA's authority under section 110(k)(5) are discussed in more detail in section VIII.A of this document.

13. Comments that the EPA is violating the principles of cooperative federalism through this action.

Comment: Several commenters stated that the EPA's action with respect to affirmative defenses in SIP provisions is inconsistent with the system of cooperative federalism contemplated by the CAA. The commenters alleged that this action is at odds with established CAA and judicial precedents indicating that states have broad discretion in developing SIP provisions, with the EPA's role being limited. Some commenters further alleged that the Start Printed Page 33860EPA's action has the effect of unlawfully directing states to impose a particular control measure. The commenters argued that the EPA must defer to a state's choices on how to meet the relevant NAAQS, through whatever SIP provisions the state elects to develop. One commenter argued that states have independent authority to include affirmative defense policies in their SIPs, even if the DC Circuit has held that the EPA may not include affirmative defense provisions in federal regulations.

Response: The EPA agrees that the CAA is based upon the principle of cooperative federalism but disagrees with the commenters' characterization of the respective authorities and responsibilities of states and the Agency. As explained in the February 2013 proposal, and in section V.D.2 of this document, the EPA has the authority and the obligation to ensure that SIP provisions meet fundamental CAA requirements, when initially submitted and later. In the case of affirmative defenses in SIP provisions, the EPA has determined that such provisions do not comply with CAA requirements because they operate to alter or eliminate the statutory jurisdiction of the courts, contrary to section 113 and section 304. The states have broad discretion in how to create SIP provisions but must do so consistent with CAA requirements. By issuing this SIP call, the EPA is not in any way compelling states to impose any specific SIP control measure on any specific source but merely requiring states to revise their SIP provisions to make them consistent with CAA requirements.

14. Comments that the EPA failed to account adequately for the amount of time and resources that will be required to revise state SIPs.

Comment: Many commenters asserted that the SNPR did not recognize that removal of affirmative defense provisions from SIPs will impose enormous burdens on states because they will need to revise SIPs to create alternative emission limitations in lieu of the affirmative defenses. Commenters contended that removal of the affirmative defense provisions will necessarily require state air agencies to make extensive revisions to SIPs and that in many states, such changes will have to be reviewed by the state legislature. Commenters explained that such an effort could not reasonably be completed in many states within the 18 months the EPA proposed to provide for SIP revisions in response to the final SIP call. Commenters also stated that the SSM provisions that the EPA proposed to require states to remove from their SIPs have been incorporated into thousands of title V operating permits and that those title V permits would, in turn, need to be modified if the affirmative defense provisions are removed from the approved SIPs. Commenters indicated that states might also need to amend an even larger number of minor source permits.

Commenters also indicated that in conjunction with removal of affirmative defenses, states will also have to reevaluate the emission limitations currently contained in their SIPs to determine if those limitations are still are consistent with federal and state law (e.g., represent reasonably available control technology). Some commenters expressed the view that the EPA must indicate that states will not be required to remove the identified affirmative defense provisions from their SIPs until the state has had time to consider whether emission limitations in state regulations and in construction and operating permits need to be modified and to obtain any necessary EPA approval for the modified requirements. Commenters also argued that the EPA's suggestion that states subject to a SIP call could simply remove an existing affirmative defense provision and rely on enforcement discretion to address “unavoidable” exceedances is wrong and that states adopt emission limitations under state administrative rules that require the agency to provide a record to support the level of the emission limitation.

Response: The EPA has acknowledged that correction of the deficient SIP provisions at issue in this action will take time and resources. For this reason, the EPA is providing states with the maximum time (18 months) permitted by section 110(k)(5) to respond to this SIP call. In addition, the EPA is endeavoring to provide states with clear and comprehensive guidance concerning the proper treatment of excess emissions during SSM events in SIP provisions in order to make this process more efficient.

The EPA acknowledges that some states, in conjunction with removal of affirmative defense provisions, may elect to undertake a more comprehensive revision of affected SIP emission limitations. In so doing, the states may need to undertake a more resource intensive approach than those states that merely elect to eliminate the affirmative defense provisions. In addition, the EPA also recognizes that states may eventually need to revise permits to reflect the elimination of affirmative defense provisions from underlying SIP provisions that may have been reflected in permits. The EPA discussed these issues in the both the February 2013 proposal and in the SNPR. A summary of comments concerning revisions to operating permits to reflect the revised SIP provisions appears, with the EPA's response to comments, in section VIII.D.28 of this document.

Despite the potential burden on states, as the EPA explained in the February 2013 proposal and the SNPR, the Agency believes that it is obligated and authorized to issue this SIP call action to affected states to require the removal of affirmative defense provisions. The EPA is not in this action evaluating or determining whether SIP emission limitations should or should not be revised in light of the removal of affirmative defenses and is not required to do so. The states have discretion to determine how best to revise the deficient SIP provisions identified in this action, so long as they do so consistent with the CAA requirements.

Further, the EPA does not agree that enforcement discretion cannot substitute for an affirmative defense for malfunctions. For example, the EPA has taken the position that the CAA does not require malfunction emissions to be factored into development of section 112 or section 111 standards and that case-by-case enforcement discretion provides sufficient flexibility.[54] Moreover, the EPA believes that Congress has already provided for such flexibility in section 113, by providing the courts with jurisdiction to determine liability and to impose remedies. For example, in section 113(e), Congress provided specific criteria for courts to consider in imposing monetary penalties, including consideration of such factors as justice may require.

With respect to the potential need to amend permits, as explained in the February 2013 proposal, “the EPA does not intend its action on the Petition to affect existing permit terms or conditions regarding excess emissions during SSM events that reflect previously approved SIP provisions. . . . [A]ny needed revisions to existing permits will be accomplished in the ordinary course as the state issues new permits or reviews and revises existing permits. The EPA does not intend the issuance of a SIP call to have automatic impacts on the terms of any existing permit.” [55] Thus, these permit revisions that commenters expressed concern about need not occur during the 18-Start Printed Page 33861month SIP development timeframe but may proceed thereafter according to normal permit revision requirements.

Finally, the EPA notes, the burdens associated with SIP revisions and permit revisions are burdens imposed by the CAA. The states have both the authority and the responsibility under the CAA to have SIPs and permit programs that meet CAA requirements. It is inherent in the structure of the CAA that states thus have the burden to revise their SIPs and permits when that is necessary, whether because of changes in the CAA, changes in judicial interpretations of the CAA, changes in the NAAQS, or a host of other potential events that necessitate such revisions. Among those is the obligation to respond to a SIP call that identifies legal deficiencies in specific provisions in a state's SIP.

15. Comments that the EPA is being inconsistent because rules promulgated by the EPA provide affirmative defense provisions for malfunction events.

Comment: A number of commenters claimed that the EPA cannot interpret the CAA to prohibit affirmative defenses in SIP provisions because the Agency itself has issued regulations that include affirmative defenses for excess emissions during malfunction events. The commenters claim that the EPA is being inconsistent on this point and thus cannot require states to remove affirmative defenses from SIPs.

Other commenters alleged that the EPA is being inconsistent because it has not adequately explained the reversal of its “decades-old” policy interpreting the CAA to allow affirmative defenses in SIP provision. The commenters cited to SIP provisions that the EPA previously approved in eight states between 2001 and 2010 that they believed would be affected by this SIP call. The commenters claimed that these prior actions were consistent with the EPA's SSM policy memoranda. Additionally, the commenters cited to federal regulations that the EPA has previously promulgated that include affirmative defense provisions. The commenters claimed that these prior actions are “inconsistent with EPA's proposed disallowance of affirmative defenses.”

Response: The EPA has acknowledged that it has previously approved some SIP provisions with affirmative defenses that were consistent with its interpretation of the CAA in the 1999 SSM Guidance at the time it acted on those SIP submissions. However, since that time, two decisions from the D.C. Circuit have addressed fundamental interpretations of the CAA related to the legally permissible approaches for addressing excess emissions during SSM events.[56] In light of those decisions, as explained in detail in the February 2013 proposal, the SNPR and this document, the EPA has concluded that certain aspects of its prior interpretation of the CAA, as set forth in the SSM Policy, were not the best interpretation of the CAA. As a result, certain SIP provisions that the EPA previously approved are also not consistent with the requirements of the CAA. In particular, this includes the EPA's prior interpretation of the CAA to allow affirmative defense provisions in SIPs in the 1999 SSM Guidance.

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

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

16. Comments that existing affirmative defense provisions do not preclude parties from filing enforcement actions or hinder parties from seeking injunctive relief for violations of SIP requirements.

Comment: One state commenter asserted that the existing affirmative defense provisions in the state's SIP do not prevent the state or the EPA from pursuing injunctive relief or mitigation of environmental impacts in the event of violations. Thus, the commenter supported the EPA's prior interpretation of the CAA to allow affirmative defense provisions, so long as courts can still award injunctive relief for violations. The commenter did not articulate how this prior statutory interpretation is consistent with the reasoning of the court in NRDC v. EPA concerning the same statutory provisions.

By contrast, an environmental group commenter cited a citizen suit enforcement case in Texas in which the commenter claimed that the affirmative defense provision in that state's SIP operated as a de facto shield against any enforcement. The commenter stated that the EPA's approval of the affirmative defense was premised upon its only applying to civil penalties and not to injunctive relief and that the Agency's approval of the SIP provision was explicitly upheld on this basis by the Fifth Circuit. Nevertheless, the commenter asserted, the state agency has implemented this provision such that if the affirmative defense criteria are met, there is “no violation” and thus no potential for injunctive relief.

Response: The EPA agrees that some of the affirmative defense provisions at issue in this action are expressly limited to monetary penalties and not to injunctive relief. This approach was consistent with the EPA's prior interpretation of the CAA concerning affirmative defense provisions in SIPs but also consistent with the arguments that the D.C. Circuit rejected in the NRDC v. EPA decision. Thus, the fact that some of the affirmative defense provisions addressed in this action preserve the possibility for injunctive relief, even if the court could award no monetary penalties, is no longer a deciding factor.

The EPA also agrees that some agencies or courts may not apply the affirmative defense provisions in the manner intended at the time the EPA approved them into the SIP. Incorrect application of SIP affirmative defense provisions by sources, regulators or courts is a matter of concern. However, even perfect implementation of a SIP affirmative defense provision does not cure the underlying and now evident absence of a legal basis for such provisions. Again, the fact that a given affirmative defense provision is being implemented correctly or incorrectly is no longer a deciding factor for purposes of this SIP call action.

These issues are not pertinent to the EPA's decision in this action to require states to remove the affirmative defense provisions from the previously approved SIPs. Rather, as explained in Start Printed Page 33862detail in the SNPR and this final action, the EPA is requiring the affected states to remove these SIP provisions because they are inconsistent with CAA requirements. As explained in the SNPR, the EPA has concluded that such affirmative defenses in SIP provisions are inconsistent with section 113 and section 304, in light of the reasoning of the court in NRDC v. EPA.

17. Comments that the EPA is changing its policy on affirmative defenses, and this change is arbitrary and capricious and thus an impermissible basis for a SIP call.

Comment: Several commenters stated that the EPA's action with respect to affirmative defense provisions marks a change in the EPA's approach to these provisions. The commenters alleged that this SIP call action is not mandated by judicial precedent, and therefore the SNPR simply reflected a “policy change” by the EPA. The commenters argued that, while the EPA is permitted to change its policy or interpretation of the law, this specific change is arbitrary and capricious and forces unreasonably difficult and burdensome requirements on states and sources. The commenters asserted that the EPA failed to explain adequately this change in policy or to document reasons for the change in the administrative record. Some commenters further alleged that the EPA does not have authority to impose its policy preferences on states.

Response: The EPA disagrees that the basis for this SIP call action is a change of “policy” as alleged by the commenters. The EPA's guidance to states concerning the proper treatment of excess emissions during SSM events in SIP provisions is provided in the SSM Policy, but this guidance reflects the Agency's interpretation of statutory requirements. As explained in detail in the SNPR and in this document, the EPA is changing its interpretation of the CAA with respect to affirmative defenses in SIP provisions based on the logic of the court in NRDC v. EPA. Further, as acknowledged by commenters, the EPA is permitted to change its interpretation of the statute provided that it clearly explains the basis for the change. The EPA clearly explained the basis for the changed interpretation in the SNPR based on its analysis of the legal rationale respecting sections 113 and 304 in the NRDC v. EPA decision.

18. Comments that emissions during malfunction periods are not “excess” or “violations” but rather are part of the established SIP emission limitations.

Comment: Commenters cited the EPA's brief filed in the Fifth Circuit Luminant Generation v. EPA case in support of an argument that states are not required to attach a penalty or any certain amount of penalty to a violation of a SIP emission limitation. The commenters noted that in the brief, the EPA stated that under section 110 of the CAA, states are authorized “to determine what constitutes a violation, and to distinguish both quantitatively and qualitatively between different types of violations.” Further, the commenter noted, the EPA argued in the brief that because the violation is defined by the state, an affirmative defense does not impinge on the court's jurisdiction. The commenters contended that nothing has changed since the brief was filed to justify a change in interpretation of the CAA and that the EPA failed to explain why its prior interpretation is no longer correct.

Other commenters claimed that the EPA takes the position that affirmative defenses in SIP provisions conflict with the court's jurisdiction over enforcement actions and stated that this position is flawed because enforcement is limited to violations as defined in the context of the SIP. The commenters asserted that section 304 does not apply when there is no SIP requirement being violated and that the state has the authority to define what constitutes such a violation. Similarly, commenters argued that an affirmative defense provision may provide that emissions will not be “violations” if criteria are met and that it therefore does not interfere with a court's ability to determine appropriate penalty amounts under section 113. The commenters contended that, because the state has the authority to define what constitutes a violation, SIP provisions that include an affirmative defense do not infringe on a court's authority to penalize a source because the CAA does not provide a court with jurisdiction to impose remedies in the absence of liability.

Response: The EPA explained in detail the rationale for its change in interpretation of the CAA regarding affirmative defenses in the SNPR. The EPA acknowledges that in the Luminant Generation v. EPA case, the Agency argued that states are authorized to determine what constitutes a violation and to distinguish between different types of violations. As the EPA explained in the SNPR, the court in Luminant Generation v. EPA held that the Agency's interpretation of the CAA to permit affirmative defenses applicable to malfunctions at that time was a “permissible interpretation of section [113], warranting deference.” The same court also upheld the EPA's interpretation of the CAA to preclude affirmative defenses for planned events on the same basis that it was a reasonable interpretation of the CAA. However, the EPA has reevaluated this interpretation of the CAA requirements in light of the more recent NRDC v. EPA decision, and the Agency now believes that its prior interpretation of the CAA with respect to the approvability of affirmative defense provisions in SIPs is no longer the best reading of the statute. Thus, the Agency's view now is that a “violation” cannot be defined in a manner that interferes with the court's role in assessing remedies. It is irrelevant that the EPA had argued for a different interpretation in the past as the Agency now believes that the court's analysis in NRDC v. EPA is the better reading of the provisions of the statute concerning affirmative defenses. The EPA has authority to revise its prior interpretation of the CAA when further consideration indicates to the Agency that its prior interpretation of the statute is incorrect. The EPA fully explained the basis for this change in its interpretation of the CAA in the SNPR.

The EPA agrees that in some cases, affirmative defense provisions at issue in this SIP call action are structured as a complete defense to any liability, not merely a defense to monetary penalties. The EPA has also determined that affirmative defense provisions of this type are substantially inadequate to meet CAA requirements. Although such affirmative defenses may not present the same concerns as affirmative defenses applicable only to penalties, such affirmative defenses may create a different concern because they in effect provide a conditional exemption from otherwise applicable emission limitations. If there is no “violation” when the criteria of such an “affirmative defense” are met and no legitimate alternative emission limitation applies during that event, then such an affirmative defense in effect operates to create a conditional exemption from applicable emission limitations. This form of “affirmative defense” provision therefore runs afoul of different CAA requirements for SIP provisions. Under section 302(k) of the CAA, emissions standards or limitations must be continuous and cannot include SSM exemptions, automatic or otherwise. Regardless of whether the commenters believe that this form of “affirmative defense” should be allowed, the EPA believes that provisions of this form are inconsistent with the decision of the court in Sierra Club v. Johnson.[59] In that case, the court held that emission limitations under the CAA must impose Start Printed Page 33863continuous controls and cannot include exemptions for emissions during SSM events. The EPA concludes that making the exemptions from emission limitations conditional does not alter the fact that once exercised they are illegal exemptions.

19. Comments that the definition of “emission limitation” in CAA section 302(k) does not support this SIP call action.

Comment: Several commenters noted that while the EPA depends on the definition of “emission limitation” in the CAA section 302(k) for this action, that CAA provision does not support this SIP call action, including that the CAA does not require that SIPs contain continuous emissions standards in the form asserted by the EPA. The commenters alleged that the definition in the CAA and supporting materials interpreting that definition do not support the EPA's requiring one emission limitation to apply in all circumstances at all times. Some commenters further alleged that states subject to the EPA's SIP call action have implementation plans that provide emission limitations that apply continuously through a combination of numerical emission limitations, the general duty to minimize emissions and the affirmative defense criteria for excess emissions during malfunctions.

Several commenters questioned why, even if the challenged affirmative defense provisions do not qualify as “emission limitations” or “emissions standards” under the first part of the definition, they are not approvable as “design, equipment, work practice or operational standards” promulgated under the second part of the definition. Some commenters argued that, to the extent that affirmative defense provisions in SIPs do not satisfy the definition of “emission limitation,” they would still be approvable elements of a SIP as “other control measures, means, or techniques” allowed under CAA section 110(a)(2). Further, some commenters believe that the legislative history cited in the SNPR does not support the EPA's position but rather is only intended to preclude the use of dispersion techniques, such as intermittent controls.

One commenter stated that the Portland Cement NESHAP, at issue in the NRDC v. EPA decision, was classified by statute as an “emissions standard,” a term defined by the CAA and defined as applying “on a continuous basis.” The commenter stated that SIP provisions involve more than “emissions standards” and need not be “emissions standards.” [60] Thus, according to the commenter, the NRDC v. EPA decision does not apply to SIP rules.

Response: The commenters alleged that the EPA's interpretation of the CAA section 302(k) definition of “emission limitation” in this action was inappropriate and that section 302(k) does not support this SIP call action. The EPA notes that it is not the Agency's position that all emission limitations in SIP provisions must be set at the same numerical level for all modes of source operation or even that they must be expressed numerically at all. To the contrary, the EPA intended in the February 2013 proposal and the SNPR to indicate that states may elect to create emission limitations that include alternative emission limitations, including specific technological controls or work practices, that apply during certain modes of source operation such as startup and shutdown. However, this comment is not relevant to the issue of affirmative defense provisions in SIPs. It is not for the reason that affirmative defense provisions do not meet the definition of an “emission limitation” in section 302(k) that the EPA is promulgating this SIP call action for affirmative defense provisions. The EPA has concluded that affirmative defense provisions are substantially inadequate to meet CAA requirements concerning enforcement, in particular the requirements of section 113 and section 304.

As to commenters' argument that affirmative defense provisions can be appropriately considered to be “design, equipment, work practice or operational standards” under CAA section 302(k), the critical aspect of an emission limitation in general is that it be a “requirement . . . which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis . . . .” These provisions operate to excuse sources from liability for emissions under certain conditions, not to limit the emissions in question. The affirmative defense provisions at issue in this final action do not themselves, or in combination with other components of the emission limitation, limit the quantity, rate or concentration of air pollutants on a continuous basis. These affirmative defense provisions, therefore, do not themselves meet the statutory definition of an emission limitation under section 302(k).

The EPA notes that the definition of “emission limitation” in section 302(k) is relevant, however, with respect to those affirmative defense provisions that commenters claim are merely a means to define what constitutes a “violation” of an applicable SIP emission limitation. As previously explained, the EPA believes that an “affirmative defense” structured in such a fashion is deficient because it in effect creates a conditional exemption from the SIP emission limitations. By creating such exemptions, conditional or otherwise, an affirmative defense of this type would render the emission limitations less than continuous.

The EPA disagrees with commenters' remaining points because the EPA's position on what appropriately qualifies as an emission limitation is consistent with the CAA, relevant legislative history and case law. These issues are addressed in more detail in sections VII.A.3.i through 3.j of this document.

20. Comments that the EPA has failed to show that state SIPs are substantially inadequate, as is required to promulgate a SIP call.

Comment: Several commenters noted that before the EPA can issue a SIP call under section 110(k)(5) with respect to affirmative defense provisions, the EPA must determine that a SIP provision is “substantially inadequate to attain or maintain the relevant [NAAQS], to mitigate adequately the interstate pollutant transport described in section 7506a of this title or section 7511c of this title, or to otherwise comply with any requirement of this chapter.” The commenters further stated that Congress employed a high bar in the language of CAA section 110(k)(5) in requiring the EPA to find “substantial” inadequacies, as opposed to other CAA provisions that permit the Agency to act based on “discretion” or when it “may be appropriate.” The commenters alleged that the EPA has not demonstrated a “substantial inadequacy” with respect to the affirmative defense provisions at issue in the SNPR, as required to issue a SIP call.

Some commenters also argued that the EPA has failed in its SNPR to define or interpret “substantially inadequate” or provide any standards for assessing the adequacy of a SIP with respect to affirmative defense provisions. The commenters also alleged that, if the EPA is required to rely on data and evidence in evaluating SIP revisions, it follows that the EPA should produce at least the same level of data and evidence, if not more, to support a SIP call that is based on the more stringent substantial inadequacy standard of section 110(k)(5).

Response: The EPA disagrees with the commenters' arguments that the Agency has failed to establish that the Start Printed Page 33864affirmative defense provisions identified in the SNPR are “substantially inadequate” as required by section 110(k)(5). As explained in the SNPR and this action, the EPA has determined that affirmative defense provisions at issue in this action are substantially inadequate because they are inconsistent with applicable legal requirements of the CAA. The commenters raised similar arguments with respect to the EPA's authority to issue a SIP call to address other forms of deficient SIP provisions, such as automatic or discretionary exemptions from emission limitations. The EPA responds to these broader arguments in sections VIII.D.46 through D.48 of this document.

21. Comments that this action is not national in scope, and therefore the D.C. Circuit is not the sole venue for review of this action.

Comment: Several commenters claimed that the EPA is incorrect in stating that this SIP call action is a single nationally applicable action and of nationwide scope or effect. The commenters alleged that review of all affected SIP provisions in a single action in the D.C. Circuit would inappropriately limit the scope of review by obscuring distinctions between the various states' regulatory programs and practical concerns. The commenters asserted that none of the various state SIP provisions addressed in the SNPR were the same, and the EPA analyzed each separately and provided case-by-case justification for its proposed action as to each. Further, the commenters argued that although the EPA has packaged the SIP calls in one Federal Register document, any final action that the EPA takes with respect to a single state's affirmative defense provision is only locally applicable and therefore should be reviewed in the individual circuits with jurisdiction over the affected state. One commenter further contended that, while the EPA's revised SSM Policy may be of interest to states to which the SIP call does not directly apply, that does not make the action “nationally applicable.”

The commenters acknowledged that the EPA cited Texas v. EPA in support of its assertion, but the commenters allege that the Fifth Circuit in that case never reached the issue of nationwide scope and effect.[61] The commenters claimed that this SIP call action is distinct from the rule at issue in Texas v. EPA because this final action turns on the particulars of the SIP call action's impact on each individual state's SIP. One commenter also claimed that the EPA has failed to provide authority or a legal basis to support its determination that this rulemaking is of “nationwide scope or effect.” Such failure, according to the commenter, violated the requirements of section 307(d)(3) and did not allow for full and meaningful comment on this issue.

One commenter alleged that the EPA has waived its challenge to venue for those circuits that have already weighed in regarding individual state SIP provisions at issue in this action, including Texas's affirmative defense provisions. Another commenter claimed that the discussion over appropriate venue in the February 2013 proposal and SNPR presupposes that the EPA's issuance of a revised SSM Policy is a “final agency action” subject to judicial review under section 307(b)(1) but argued that the EPA has failed to determine that its issuance of the SSM Policy, in and of itself, constitutes “final agency action.”

Response: The EPA disagrees with the commenters' theories concerning the scope of the Agency's action. These comments on the SNPR questioning the EPA's determination of “nationwide scope and effect” for this action largely repeat similar comments on the February 2013 proposal. As with those prior comments, commenters on the SNPR made the basic argument that this action is not of nationwide scope and effect because the EPA is reviewing individual SIP provisions and directing states to correct their respective deficient SIP provisions. The EPA disagrees with commenters because, as explained in more detail in its response in section V.D.6 of this document, this rulemaking action applies the same “process and standard” to numerous areas across the country. While it is correct that the SIP submissions that states make in response to this SIP call will be reviewed separately by the EPA and subsequently subject to potential judicial review in various circuits, the EPA's legal interpretation of the CAA concerning permissible SIP provisions to address emissions during SSM events in this action is nationally applicable to all states subject to the SIP call. The EPA provided a full explanation of its basis for this determination of nationwide scope and effect in the February 2013 proposal and the SNPR.

The EPA also disagrees with the argument that the Agency has waived venue regarding challenges to this SIP call action concerning the affirmative defense provisions in the Texas SIP. Evidently, the commenter believes that because a prior challenge to another EPA rulemaking concerning the affirmative defense provisions occurred in the Fifth Circuit, it necessarily follows that any other rulemaking related to such provisions can only occur in the Fifth Circuit. The EPA believes that this interpretation of its authority under section 307(b)(1) is simply incorrect. Under section 307(b)(1), the EPA is explicitly authorized to make a determination that a specific rulemaking action is of “nationwide scope and effect.” The statute does not specify the considerations that the EPA is to take into account when making such a determination, let alone provide that the Agency cannot invoke this because some aspect of the rulemaking at issue might previously have been addressed in one or more other circuit courts. To the contrary, the EPA believes that section 307(b)(1) explicitly provides authority for the Agency to determine that a given rulemaking should be reviewed in the D.C. Circuit in situations such as those presented in this action that affects important questions of statutory interpretation that affect states nationwide.

The EPA likewise disagrees with the argument that its action is not a final agency action. Within this action, the EPA is taking final agency action to respond to the Petition, updating its interpretations of the CAA in the SSM Policy and applying its interpretations of the CAA in the SSM Policy to specific SIP provisions in the SIPs of many states. The EPA is conducting this action through notice-and-comment rulemaking to assure full consideration of the issues. As stated elsewhere in this document, the revised SSM Policy is a nonbinding policy statement that does not, in and of itself, constitute “final” action. However, the EPA is taking “final” action by responding to the Petition and issuing the resulting SIP call action. To the extent that interpretations expressed in the revised SSM Policy are also relied on to support this “final” action, then the EPA's interpretations of the CAA requirements for SIP provisions applicable to emissions during SSM events are part of the final agency action and are subject to judicial review. To the extent the commenters are otherwise arguing that the issuance of the updated SSM Policy in and of itself is not final agency action subject to judicial review under the CAA, the EPA agrees with this assertion. The EPA notes that the commenters are at liberty to adopt this position and waive their opportunity to challenge the SSM Policy because they do not consider it final agency action.Start Printed Page 33865

22. Comments that the EPA should clarify that SIPs can include work practice standards or general-duty clauses to apply during malfunction periods in place of affirmative defense provisions.

Comment: Several commenters stated that the EPA should announce in this final action that in lieu of affirmative defenses, states may elect to revise their SIP provisions to include work practice standards or general-duty clauses that are modeled on existing affirmative defense provisions and that would apply during malfunctions. Most of these commenters advocated that the EPA's previously recommended criteria for an “affirmative defense” for malfunctions should simply be changed into criteria for a “work practice” provision instead. One commenter made the same suggestion but also advocated that the EPA eliminate six of the nine criteria and rephrase the remaining criteria, in order to “improve the standards, reduce uncertainty, and reduce wasteful litigation.” This commenter advocated that the EPA also redefine the term “malfunction” to much more broadly mean any “sudden and unavoidable breakdown of process or control equipment.” Specifically, the commenter advocated, the EPA should no longer recommend that a malfunction be defined as an event that: (i) Was caused by a sudden, infrequent and unavoidable failure of air pollution control equipment, process equipment or a process to operate in a normal or usual manner; (ii) could not have been prevented through careful planning, proper design or better operation and maintenance practices; (iii) did not stem from any activity or event that could have been foreseen and avoided or planned for; and (iv) was not part of a recurring pattern indicative of inadequate design, operation or maintenance. By changing the “affirmative defense” provisions for malfunctions into “work practice” or “general duty” provisions for malfunctions, the commenters argued, the revised provisions would be consistent with CAA requirements. Under this approach, the commenters asserted that compliance with these new requirements would mean that any emissions during a malfunction event could not be considered “excess” or result in any violation if the source had complied with the “work practice” criteria.

Response: As an initial matter, the EPA has not established a regulatory definition of “malfunction” that is binding on states when developing SIPs. States have the flexibility in their SIPs to define that term. Thus, the EPA is not addressing here the comments requesting that EPA “redefine” the definition of malfunction.

Regarding the more general concern of the commenters, that states be allowed to establish an alternative emission limitation in the form of a work practice standard that applies during malfunctions, the EPA notes two points. First, the CAA does not preclude that emissions during malfunctions could be addressed by an alternative emission limitation. The EPA's general position in the context of standards under sections 111, 112 and 129 is that: (i) The applicable emission limitation applies at all times including during malfunctions; (ii) the CAA does not require the EPA to take into account emissions that occur during periods of malfunction when setting such standards; and (iii) accounting for malfunctions would be difficult, if not impossible, given the myriad types of malfunctions that can occur across all sources in a source category and given the difficulties associated with predicting or accounting for the frequency, degree and duration of various malfunctions that might occur. Although the EPA has not, to date, found it practicable to develop emission standards that apply during periods of malfunction in place of an otherwise applicable emission limitation, this does not preclude the possibility that a state may determine that it can do so for all or some set of malfunctions. Second, states are not bound to establish any specific definition of “malfunction” in their SIPs. Thus, it is difficult to judge at this time whether any particular alternative emission limitation in a SIP for malfunctions, including any specific work practice requirements in place of an otherwise applicable emission limitation, would be approvable.

With regard to the specific comment that the affirmative defense criteria could be converted into a work practice requirement to apply during malfunctions in place of an otherwise applicable emission limitation, the EPA is unsure at this time whether the criteria previously recommended for an affirmative defense provision would serve to meet the obligation to develop an appropriate alternative emission limitation. Existing affirmative defense criteria (which include, among other things, making repairs expeditiously, taking all possible steps to minimize emissions and operating in a manner consistent with good practices for minimizing emissions) were developed in the context of helping to determine whether a source should be excused from monetary penalties for violations of CAA requirements and were not developed in the context of establishing an enforceable alternative emission limitation under the Act. The EPA would need to consider this approach in the context of a specific SIP regulation for a specific type of source and emission control system.

Finally, the EPA notes that any emission limitation, including an alternative emission limitation, that applies during a malfunction must meet the applicable stringency requirements for that type of SIP provision (e.g., would need to meet RACT for sources subject to the RACT requirement) and must be legally and practically enforceable. Thus, the SIP provision would need to: (i) Clearly define when the alternative emission limitation applied and the otherwise applicable emission limitation did not; (ii) clearly spell out the requirements of that standard; and (iii) include adequate monitoring, recordkeeping and reporting requirements in order to make it enforceable. In addition, the state would need to account for emissions attributable to these foreseen events in emissions inventories, modeling demonstrations and other regulatory contexts as appropriate.

23. Comments that the EPA has failed to account adequately for the cost of this SIP call action and is therefore in violation of the Regulatory Flexibility Act, the Unfunded Mandates Reform Act and Administration policy.

Comment: Two commenters argued that the SNPR lacks sufficient analysis of what this action will cost states, stationary sources and the public. The commenters allege that this absence of economic impact analysis is contrary to the Regulatory Flexibility Act, the Unfunded Mandates Reform Act and Administration policy. One of the commenters also noted that imposing substantial “unfunded mandates” on state regulatory agencies and forcing stationary sources to absorb additional costs should be evaluated carefully.

Response: The EPA disagrees with the commenters' allegation that the EPA has failed to comply with relevant statutes and Administration policy in accounting for the cost of the actions proposed in the SNPR. The EPA did in fact properly consider the costs imposed by this action. These issues are addressed in more detail in section V.D.7 of this document.

24. Comments that states should not be required to eliminate affirmative defense provisions but rather should be allowed to revise them to be appropriate under CAA requirements.

Comment: One state commenter claimed that it should be allowed to revise its existing affirmative defense Start Printed Page 33866provisions rather than remove them. The commenter asserted that the state should be allowed to revise the provision to make clear that it does not apply to private enforcement actions under CAA section 304(a), which was the only issue specifically before the court in NRDC v. EPA. Relying on the court's decision, the commenter claimed that the state should be allowed to revise the affirmative defense provisions to apply only in administrative enforcement proceedings. The commenter also argued that there may be other options for appropriately tailoring the state's existing affirmative defense provisions rather than removing them from the SIP.

Response: The EPA agrees that the court in NRDC v. EPA did not directly address whether states have authority to create affirmative defense provisions that apply exclusively to state personnel in the context of state administrative enforcement actions. Statements by the court concerning the EPA's own authority in the context of administrative enforcement, however, indicate that the court did not intend to foreclose the Agency from exercising its own enforcement discretion with respect to remedies in federal administrative enforcement actions. However, the EPA has reevaluated its interpretation of CAA requirements in light of the court's decision in NRDC v. EPA and the EPA now interprets the CAA to preclude state SIP provisions creating affirmative defenses that sources could assert in the context of judicial enforcement in federal court, whether initiated by states, the EPA, or other parties pursuant to section 304.

The EPA agrees that states may elect to revise their existing deficient affirmative defense provisions to make them “enforcement discretion”-type provisions that apply only in the context of administrative enforcement by the state. Such revised provisions would need to be unequivocally clear that they do not provide an affirmative defense that sources can raise in a judicial enforcement context or against any party other than the state. Moreover, such provisions would have to make clear that the assertion of an affirmative defense by the source in a state administrative enforcement context has no bearing on the additional remedies that the EPA or other parties may seek for the same violation in federal administrative enforcement proceedings or judicial proceedings.

In this action, the EPA is not determining whether any such revisions would meet applicable CAA requirements. The EPA would need to consider the precise wording of any such revised provisions in evaluating whether the state has adequate enforcement authority to meet the requirements of section 110(a)(2)(C) and also whether application of such a provision in a state administrative proceeding could interfere with the ability of a citizen or the EPA to bring a federal enforcement action.

25. Comments that states' ability to use enforcement discretion is not an adequate replacement for affirmative defense provisions.

Comment: Several commenters argued that exercise of enforcement discretion is not an adequate substitute for an affirmative defense, particularly where the emissions at issue resulted from an inevitable and unavoidable malfunction. In any individual case, the commenters were concerned that even if a state elects not to enforce against a violation, the EPA or others might elect to bring an enforcement action. One commenter contended that it is inappropriate for the EPA to encourage states to use enforcement discretion instead of encouraging them to create alternative emission limitations to replace affirmative defenses in SIP provisions. The commenters also alleged that reliance on judicial discretion to determine the appropriateness of penalties is similarly inadequate.

The commenters contended that, although it is reasonable for a state to exercise enforcement discretion under circumstances when an emission limitation cannot be met, it is not reasonable to adopt SIP provisions with emission limitations that put some sources in the position of “repeated noncompliance.”

Response: These comments addressing whether an enforcement discretion approach is sufficient are similar to comments received on the February 2013 proposal to which the EPA responds in section VII.A.3.p of this document. Through this SIP call, the EPA is not requiring states to rely on enforcement discretion in place of achievable SIP emission limitations. Rather, the EPA is requiring states to ensure that emission limitations are consistent with the definition of that term in section 302(k), and specifically that emission standards provide for continuous compliance. If emission limitations that apply during routine operations cannot be met by a source during periods of startup or shutdown, states have authority to establish alternative emission standards. The EPA disagrees that an affirmative defense for penalties for excess emissions for periods of malfunctions is an adequate substitute for an enforceable continuous emission limitation and concludes that such an approach is inconsistent with the CAA as interpreted by the court in NRDC, as explained in the SNPR.

The EPA also disagrees that affirmative defense provisions would have been appropriate to address the “repeated noncompliance” concerns of the commenters. The EPA's prior interpretation of the CAA was that states could create narrowly tailored affirmative defense provisions applicable to malfunctions. However, to the extent that there are malfunctions that put a source in the position of “repeated noncompliance,” the form of affirmative defense that the EPA previously believed was consistent with the CAA would not have provided relief because several of the criteria could not be met. Specifically, the EPA believes repeated noncompliance is typically a result of inadequate design, is part of a “recurring pattern,” and thus likely could have been “foreseen and avoided.” In short, an affirmative defense would not have been appropriate for such a source.

26. Comments that the EPA should establish specific rules to govern how states set alternative limitations that apply in lieu of affirmative defense provisions.

Comment: Commenters urged the EPA to clarify in this final action that states may establish alternative emission limitations applicable to startup and shutdown only if the source meets all applicable CAA requirements, including but not limited to BACT/LAER, and the state also demonstrates through modeling that potential worst-case emissions from startup and shutdown would not interfere with attainment and reasonable further progress. Other commenters stated that any changes to SIP emission limitations must be made as part of a SIP revision process, which would include a demonstration that higher levels of emissions during startup and/or shutdown would not lead to violations of the NAAQS or PSD increments.

Commenters also argued that any such alternative emission limitation should “sunset” each time the EPA promulgates a new NAAQS and that the Agency should require the state to demonstrate again that an alternative emission limitation applicable during startup and/or shutdown does not interfere with attainment or other applicable requirements of the CAA for the revised NAAQS. In support of their arguments that the EPA should impose specific requirements of this type, the commenters indicated that a state has issued permits for sources that establish particulate matter (PM) emission limitations less stringent than existing Start Printed Page 33867permit terms and without requiring a BACT/LAER/ambient impacts analysis and has done so without public notice and comment. Commenters urged the EPA to require states to follow public notice-and-comment processes before issuing any permits for sources with alternative limitations less stringent than those imposed by the SIP and claimed such process is required under the CAA.

In addition, some commenters stated that if the EPA allows states to set “new, higher, or alternate limits” applicable during startup and shutdown, the EPA should set clear parameters. According to commenters, the EPA at a minimum should require, for emissions that have not previously been authorized or considered part of a source's potential to emit, that: (i) Limitations must meet BACT/LAER; (ii) there should be clear, enforceable rules for when alternate limitations apply; (iii) there should be a demonstration that worst-case emissions will not cause or contribute to a violation of the NAAQS or PSD increments; and (iv) proposed limitations should be subject to public notice and comment and judicial review. The commenter pointed to a letter from the EPA to Texas in which, the commenter claims, the Agency indicated that these parameters must be met.

A commenter stated that the EPA should unequivocally state in this final action that: (i) All potential to emit emissions, including quantifiable emissions associated with startup and shutdown, must be included in federal applicability determinations and air quality permit reviews; (ii) authorization of these emissions must include technology reviews and impacts analyses; and (iii) the above requirements must be included in the permit that authorizes routine emissions from the applicable units and must be subject to public notice, comment and judicial review.

A commenter recognized that there may be a variety of ways in which states can authorize different limits to apply during startup and shutdown but argued that, no matter the method chosen, the emissions need to be fully accounted for by the state in the relevant SIP, including a demonstration that the additional emissions authorized during startup and shutdown will not violate any NAAQS.

Response: The EPA understands the concerns raised by the commenters but does not agree that further regulatory action such as issuance of regulatory text is necessary at this time. Through this action, the EPA is providing comprehensive guidance to states concerning issues related to the proper treatment of emissions during SSM events in SIP provisions. For example, the EPA is addressing the concern raised by commenters that states will need to ensure that any SIP revisions in response to this SIP call will meet applicable CAA requirements. Under section 110(k)(3), the EPA has authority to approve SIP revisions only if they comply with CAA requirements. Moreover, under section 110(l), the EPA cannot approve SIP revisions if they would “interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement” of the CAA. The EPA believes that both states and the Agency can address these issues in SIP rulemakings without the need for any additional federal regulations as suggested by the commenters.

The EPA agrees with the concerns raised by the commenters regarding instances where a state has issued source permits that impose less stringent emission limitations than otherwise established in the SIP. Using a permitting process to create exemptions from emission limitations in SIP emission limitations applicable to the source is tantamount to revising the SIP without meeting the procedural and substantive requirements for a SIP revision. The Agency's views on this issue are described in more detail in section VII.C.3.e of this document.

The EPA does not agree with the comment that suggests “worst-case modeling” would always be needed to show that a SIP revision establishing alternative emission limitations for startup and shutdown would not interfere with attainment or reasonable further progress. The nature of the technical demonstration needed under section 110(l) to support approval of a SIP revision depends on the facts and circumstances of the SIP revision at issue. The EPA will evaluate SIP submissions that create alternative emission limitations applicable to certain modes of operation such as startup and shutdown carefully and will work with the states to assure that any such limitations are consistent with applicable CAA requirements. Under certain circumstances, there may be alternative emission limitations that necessitate a modeling of worst-case scenarios, but those will be determined on a case-by-case basis.

The EPA also does not agree that existing SIP provisions with alternative emission limitations should automatically “sunset” upon promulgation of a new or revised NAAQS. Such a process could result in gaps in the state's regulatory structure that could lead to backsliding. When the EPA promulgates new or revised NAAQS, it has historically issued rules or guidance to states concerning how to address the transition to the new NAAQS. In this process, the EPA typically addresses how states should reexamine existing SIP emission limitations to determine whether they should be revised. With respect to technology-based rules, the EPA has typically taken the position that states need not adopt new SIP emission limitations for sources where the state can demonstrate that existing SIP provisions still meet the relevant statutory obligations. For example, the EPA believes that states can establish that existing SIP provisions still represent RACT for a specific source or source category for a revised NAAQS. In making this determination, states would need to review the entire emission limitation, including any alternative numerical limitations, control technologies or work practices that apply during modes of operation such as startup and shutdown, and ensure that all components of the SIP emission limitation meet all applicable CAA requirements.

27. Comments that the EPA should closely monitor states' SIP revisions in response to this SIP call.

Comment: Commenters urged the EPA to monitor states' efforts to revise SIPs in response to the SIP call closely in order to assure that the revisions meet all applicable requirements. The commenters indicated concern that states and industry may weaken emission limitations through this process. The commenter alleged that one state has issued permits for sources with emission limitations applicable during SSM events that are less stringent than the emission limitations approved in the SIP. Furthermore, the commenter alleged, the state issued these permits without public notice and comment. As support for this contention, the commenter detailed the differences between the requirements of a permit issued for a source and the requirements in the SIP. The commenter also claimed that the state has issued permits for other facilities similar to the one it described in detail in the comments.

Response: The EPA understands the concerns expressed by the commenter that SIP revisions made in response to this SIP call need to be consistent with CAA requirements. As explained in this document, the states and the EPA will work to assure that the SIP revisions will meet applicable legal requirements. The EPA will evaluate these SIP submissions consistent with its Start Printed Page 33868obligations under sections 110(k)(3), 110(l) and 193 and under any other substantive provisions of the CAA applicable to specific SIP submissions.

To the extent that the commenters are concerned about whether the SIP revisions meet applicable requirements, they will have the opportunity to participate in the development of those revisions. States must submit SIP revisions following an opportunity for comment at the state level. Additionally, the EPA acts on SIP submissions through its own notice-and-comment process. As part of these administrative processes, both the state and the EPA will need to evaluate whether the proposed revision to the SIP meets applicable CAA requirements. In the context of those future rulemaking actions, the public will have a chance to review the substance of the specific SIP revisions in response to this SIP call, as well as the state's and the EPA's analysis of the SIP submissions for compliance with the CAA.

28. Comments that the EPA does not have authority to take this action without Congressional authorization.

Comment: A commenter contended that the EPA does not have the authority to write law and that the EPA should be required to seek changes to the applicable law through Congress, before eliminating affirmative defense and due process provisions from SIPs.

Response: Through this action the EPA is not attempting to rewrite the CAA. Rather, the EPA is requiring states to revise specific SIP provisions to comply with the existing requirements of the CAA, as interpreted by the courts. As explained in detail in the SNPR and this document, the EPA has determined that affirmative defense provisions at issue in this action are inconsistent with the existing requirements of the CAA.

29. Comments that affirmative defense provisions are needed to ensure sources' Constitutional right to due process in the event of violations.

Comment: A number of commenters argued that by requiring the removal of affirmative defense provisions from SIPs, the EPA is impinging on the Constitutional rights of sources that may have wanted to assert such affirmative defenses in an enforcement action. A commenter claimed that affirmative defense provisions are not “loop holes,” as alleged by the EPA, but instead are fundamental due process provisions which should be retained at all levels for the protection of the public. Another commenter cited State Farm Mut. Auto Ins. Co. v. Campbell, for the proposition that a monetary penalty that is “grossly excessive . . . constitutes an arbitrary deprivation of property.” [62] Other commenters claimed that excessive penalties constitute an arbitrary deprivation of property. The commenters asserted that a penalty is excessive where it applies severe punishment to an act that is unavoidable.

Response: The commenters' due process concerns suggest that without an affirmative defense provision, any penalty assessed for violation of a SIP would be per se “excessive” or “arbitrary.” Though not expressly stated, some of these comments appear to suggest that the existing CAA enforcement provisions are facially unconstitutional. The EPA disagrees. The CAA does not mandate that any penalty is automatically assessed for a violation. Rather the CAA establishes a maximum civil penalty in section 113(b) but then expressly provides in section 113(e) the criteria that the EPA or the courts (as appropriate in administrative or judicial enforcement) “shall take into consideration (in addition to other factors as justice may require).” These criteria explicitly include consideration of “good faith efforts to comply.” Thus, the CAA on its face does not mandate the imposition of any penalty automatically, much less one that is per se excessive. Notably, the commenters do not elaborate on how or why they believe the statutory penalty provisions of the CAA are facially unconstitutional, instead making generalized claims.

To the extent that the commenters are raising an “as applied” claim of unconstitutionality, any such claim can be raised in the future in the context of a specific application of the statute in an enforcement action. Such was the case in the State Farm case cited by the commenters. In that case, a court had awarded punitive damages of $145 million in addition to $1 million compensatory damages in an automobile liability case. A statutory penalty provision was not at issue in that case and thus there were no statutory criteria for the lower court to consider in determining the appropriate penalty amount. Rather, in its review of whether the punitive damage award was excessive, and thus violated due process, the Court looked at three factors it has instructed lower courts to consider in assessing punitive damages. Such would be the case with any claim that a CAA penalty violated due process, where a reviewing court would consider whether the court appropriately considered the relevant penalty factors in assessing a penalty claimed as unconstitutional “as applied.”

30. Comments that the EPA's action eliminating affirmative defense provisions from SIPs violates the Eighth Amendment of the Constitution.

Comment: Several commenters asserted that relying on judicial discretion to determine the appropriateness of penalties is arguably unconstitutional under the Eighth Amendment's prohibition on excessive fines and punishments by allowing potentially significant penalties that are disproportionate to the offense. The commenter stated that an affirmative defense provision “helps guard against infringement of the Eighth Amendment's protections.” Other commenters argued that the U.S. Supreme Court has held that Eighth Amendment protections apply to government action in a civil context as well as in a criminal context. The commenters claimed that significant penalties are not proportional to an offense caused by unavoidable events, such as excess emissions during malfunction events. The commenters concluded that unless the EPA allows states to accommodate unavoidable emissions through changes to applicable emission limitations before affirmative defenses are removed, the EPA's proposal would “run afoul of Constitutional limitations.”

One commenter stated that an affirmative defense is the “minimum protection EPA or the state must provide to avoid infringing constitutional rights.” The commenter also argued that the EPA itself has relied on the existence of an affirmative defense to defend against a challenge to the achievability of an emission limitation in a FIP. To support this argument, the commenter quoted from the court's opinion in Montana Sulphur.[63]

Response: For the reasons provided above regarding commenters' due process claims, the EPA also disagrees with their claims that eliminating affirmative defense provisions in SIPs would result in the penalty provisions of the CAA being facially in violation of the Eighth Amendment. Similarly, if a party believes that the penalties assessed in any civil enforcement action do violate the Eighth Amendment, they can raise a challenge that the specific SIP provision at issue “as applied” in that instance violates the U.S. Constitution. As with the commenters' Start Printed Page 33869due process arguments, the EPA believes that Congress has already adequately addressed their concerns about potential unfair punishment for violations by authorizing courts to consider a range of factors in determining what remedies to impose for a particular violation, including the explicit factors for consideration in imposition of civil penalties as well as other factors as justice may require.

The EPA acknowledges that is has previously relied on affirmative defense provisions as a mechanism to mitigate penalties where a violation was beyond the control of the owner or operator. These actions, however, predated the court's decision in NRDC v. EPA and the EPA has since revised its approach to affirmative defense provisions in its own rulemaking actions. In addition, the EPA believes that the penalty criteria in section 113(e) provide a similar function and the commenters do not explain why they believe these explicit statutory factors do not provide sufficient relief from the imposition of an allegedly unconstitutionally excessive penalty.

31. Comments that the EPA should impose a deadline of 12 months for states to respond to this SIP call with respect to affirmative defense provisions.

Comment: An environmental organization commented that the EPA should require affected states to make the required SIP revisions within 12 months, rather than the 18 months proposed in the February 2013 proposal and the SNPR. The commenter claimed that communities near large sources have been suffering for decades and individuals are suffering adverse health effects because of the emissions from sources that are currently allowed by deficient SIP provisions. The commenter also stated that the EPA has recognized that excess emissions allowed by the SIP provisions subject to the SIP call are continuing to interfere with attainment and maintenance of the NAAQS and that this justifies imposing a shorter schedule for states to respond to the SIP call.

Response: The EPA acknowledges the concerns expressed by the commenters and the importance of providing environmental protection. However, as explained in the February 2013 proposal and in section IV.D.14 of this document, the EPA believes that providing states with the full 18 months authorized by section 110(k)(5) is appropriate in this action. The EPA is taking into consideration that state rule development and the associated administrative processes can be complex and time-consuming. This is particularly true where states might elect to consider more substantial revision of a SIP emission limitation, rather than merely removal of the impermissible automatic or discretionary exemption or the impermissible affirmative defense provision. In addition, the EPA believes that providing states with the full 18 months will be more likely to result in timely SIP submissions that will meet CAA requirements and provide the ultimate outcome that the commenters seek. Some states subject to the SIP call may be able to revise their deficient SIP provisions more quickly, and the EPA is committed to working with states to revise these provisions consistent with CAA requirements in a timely fashion. For these reasons, the EPA does not agree that it would be reasonable to provide less than the 18-month maximum period allowed under the CAA for states to submit SIP revisions in response to the SIP call.

32. Comments that the EPA should encourage states to add reporting and notification provisions into their SIPs.

Comment: A commenter urged the EPA to encourage states to make information about excess emissions events easily and quickly accessible to the public. The commenter claimed that it is unacceptable to make it difficult for members of the public to obtain information about potential harmful exposure to pollutants and that state “open-record” request laws are inadequate, particularly when the public is not informed that an event occurred. The commenter also asserted that reporting provisions enhance compliance and cited to the Toxic Release Inventory program's success in driving pollution reduction. The commenter argued that contemporaneous reporting of the conditions surrounding a violation, the cause and the measures taken to limit or prevent emissions ensure that stakeholders can respond in real time and also target enforcement efforts to violations where further action is warranted. As support for this approach, the commenter pointed to Jefferson County, Kentucky, as a local air quality control area that has already corrected problematic regulations in advance of this SIP call and also noted that the County included notification and reporting requirements, recognizing that they would reduce the burden on the government in trying to calculate the level of excess emissions and also help in responding to citizen inquiries about such events.

Response: The EPA agrees with the commenter that reporting and notification provisions can ease the burden on government agencies by placing the burden on the entity that is in the best position to calculate the level of excess emissions and also provide other relevant information regarding such events. In addition, to make this information available to the public quickly allows for a timely response if there is any health concern. An increased level of communication between industry and residents also serves to build a better community relationship and partnership. The EPA also supports such requirements as components of SIP emission limitations because they facilitate effective compliance assurance. However, the EPA does not believe that the Agency should create a separate federal requirement addressing this issue beyond general CAA requirements at this time.

33. Comments that this SIP call action concerning affirmative defense provisions is being taken pursuant to sue-and-settle tactics.

Comment: One commenter alleged that the action proposed in the EPA's SNPR has an “impermissible sue-and-settle genesis” and that the EPA is attempting to grant as much of Sierra Club's petition as it can “regardless of the wisdom or permissibility of doing so.”

Response: The EPA disagrees with the commenter's allegation that the EPA's proposed action in the SNPR is inappropriate because it is the result of “sue-and-settle” actions. This is a rulemaking in which the EPA is taking action to respond to a petition for rulemaking, and it has undergone a full notice-and-comment rulemaking process as provided for in the CAA. This issue is addressed in more detail in section V.D.1 of this document.

34. Comments that affirmative defense provisions do not alter or eliminate federal court jurisdiction and therefore do not violate CAA sections 113 or 304.

Comment: Two commenters argued that SIP affirmative defense provisions do not in fact interfere with the rights of litigants to pursue enforcement consistent with their rights under the citizen suit provision of CAA section 304, because plaintiffs have the right to bring a citizen suit despite the existence of affirmative defense provisions. One commenter cited at least four instances in the last few years in which environmental groups filed enforcement actions against sources in federal district court based on alleged emissions events for which the companies asserted affirmative defenses. The commenters stated that courts applied the affirmative defense provision criteria and the criteria of section 113(e) to determine Start Printed Page 33870whether penalties were appropriate for alleged violations and did not dismiss plaintiffs' claims for lack of jurisdiction. According to the commenters, affirmative defense provisions place additional burden on the sources, not plaintiffs, to demonstrate that the criteria of an affirmative defense are met.

Response: The commenters argued that affirmative defense provisions are not inconsistent with the statutory requirements of section 304, because citizen groups still bring enforcement actions for events where companies may raise an affirmative defense. Even if this were so, the EPA disagrees with the commenters that this establishes that affirmative defense provisions are consistent with CAA requirements. The mere existence of enforcement actions does not negate the fact that affirmative defense provisions interfere with effective enforcement of SIP emission limitations according to CAA section 304. More to the point, affirmative defense provisions purport to alter or eliminate the statutory jurisdiction of courts to determine liability or to impose remedies for violations, which makes the provisions inconsistent with the grant of authority in sections 113 and 304. The court's decision in NRDC v. EPA was not based on the question of whether plaintiffs could still try to bring an enforcement case for violations of the EPA regulation at issue; the case was decided on the grounds that the EPA when creating regulations has no authority to limit or eliminate the jurisdiction of the courts. As explained in the SNPR and this document, the EPA believes that the same principle applies to states when creating SIP provisions.

35. Comments that this action may increase the chance of catastrophic failure at facilities.

Comment: One commenter expressed a concern that eliminating affirmative defense provisions applicable to emissions during SSM events could increase the potential for environmental harm caused by catastrophic failure by outlawing and penalizing the emissions during SSM events that have previously been allowed or shielded from liability through affirmative defense provisions. As an example, the commenter argued that refineries and gas plants must be allowed to vent VOCs to the atmosphere on the rare occasion that there is an equipment malfunction that could otherwise cause an explosion that might destroy the plant and surrounding neighborhood. The commenter speculated that the threat of costly new fines inherent with the removal of affirmative defense provisions could cloud plant operators' thinking when they make safety decisions. The commenter contended that allowing rare, safely controlled releases of emissions would invariably be better for both the natural and human environment than the damage from a catastrophic explosion.

Response: Although the comment refers to SSM events generally, the only specific concern raised by the commenter concerning affirmative defense provisions is that if they are not allowed in SIPs, this may lead to an increase in malfunction-related catastrophic events. The EPA does not agree with the commenter's view that removal of affirmative defense provisions may increase environmental harm related to catastrophic events. The EPA believes that it is unlikely the availability or unavailability of an affirmative defense will affect a responsible and competent source operator's response to a risk of explosion. First, an explosion presents much more serious and more certain adverse economic consequences for the source than does the specter of a potential enforcement action for a CAA violation, especially because enforcement agencies and courts are likely to exercise leniency if the violation was the result of an unpreventable malfunction. Second, even if an affirmative defense were available, it is only used after initiation of an enforcement proceeding, and successful assertion of such a defense in an enforcement proceeding depends on meeting all affirmative defense criteria and is not guaranteed. The EPA does not believe that a responsible and competent source operator's actions in an emergency situation would be influenced by speculation that if the source is subject to an enforcement action in the future, there may be a defense to penalties available.

Moreover, as explained in detail in the SNPR and this document, the court's decision in NRDC v. EPA held that section 113 and section 304 preclude EPA authority to create affirmative defense provisions in the Agency's own regulations imposing emission limitations on sources, because such provisions purport to alter the jurisdiction of federal courts to assess liability and impose penalties for violations of those limits in private civil enforcement cases. The EPA believes that the reasoning of the court in that decision indicates that the states, like the EPA, have no authority in SIP provisions to alter the jurisdiction of federal courts to assess penalties for violations of CAA requirements through affirmative defense provisions. If states lack authority under the CAA to alter the jurisdiction of the federal courts through affirmative defense provisions in SIPs, then the EPA lacks authority to approve any such provision in a SIP. The EPA notes that the court in NRDC v. EPA did not indicate that the statutory provisions should be interpreted differently based on speculation that a given source operator might allow a catastrophic explosion because of the absence of an affirmative defense.

36. Comments that the SNPR did not meet the procedural requirements of section 307(d) because the EPA failed to provide its legal interpretations or explain the data relied upon in this rulemaking.

Comment: Commenters claimed that the EPA violated the procedural requirements of the CAA in the SNPR. The commenters asserted that the EPA designated this rulemaking a section 307(d) action, and the commenters claimed that the EPA did not follow the procedures required in section 307(d). The commenters claimed that the EPA failed to provide a statement of basis and purpose that includes “the major legal interpretations and policy consideration underlying the proposed rule.”

In particular, the commenters argued that the EPA did not provide required information with regard to its proposed SIP call concerning the affirmative defense provisions in the Texas SIP. Commenters claimed that the SNPR is deficient because it does not address: (i) Why the Fifth Circuit decision in Luminant Generation v. EPA does not control the present action; (ii) on what basis the EPA believes it may disregard the judgment in Luminant Generation v. EPA; (iii) why the DC Circuit decision, which does not address the Texas SIP, should take precedence over the Luminant Generation v. EPA decision; (iv) on what basis the EPA believes that the DC Circuit may reach a different result than the Fifth Circuit as to the affirmative defenses in the Texas SIP; and (v) the grounds for “acquiescing” to the DC Circuit decision in NRDC v. EPA, which specifically states that it does not apply to SIP revisions, and ignoring the relevant holding in the Fifth Circuit. Commenters cited several cases claiming that the DC Circuit has held that, unlike under the Administrative Procedure Act (APA), under CAA section 307(d) the EPA is required to give a detailed explanation of its reasoning and that commenters should not be required to “divine the agency's unspoken thoughts.”

Response: The EPA disagrees with the commenters' premise. The EPA did Start Printed Page 33871discuss the Luminant Generation v. EPA decision in the SNPR and also explained in detail why it believes that the logic of the DC Circuit's decision in NRDC v. EPA supports this SIP call action for affirmative defense provisions. Specifically, the EPA recognized that both the Fifth Circuit and the DC Circuit were evaluating the same fundamental question—whether section 113 and section 304 preclude the creation of affirmative defense provisions that alter or eliminate the jurisdiction of federal courts to determine liability and impose remedies for violations of CAA requirements in judicial enforcement actions. The EPA explained that, after reviewing the NRDC v. EPA decision and the Luminant Generation v. EPA decision, the Agency determined that its prior interpretation of the CAA, as advanced in both courts, is not the best reading of the statute. Indeed, it is significant that the Luminant court upheld the EPA's approval of affirmative defense provisions for unplanned events (i.e., malfunctions) and the disapproval of affirmative defenses for planned events (i.e., startup, shutdown and maintenance) specifically because the court deferred to the Agency's reasonable interpretation of ambiguous statutory provisions in the case at hand. In the SNPR, the EPA explained point by point why it now believes that the decision of the DC Circuit in NRDC v. EPA reflected the better reading of section 113 and section 304 and thus that the Agency no longer interprets the CAA to permit affirmative defenses in SIP provisions. Therefore, the EPA believes the Fifth Circuit could also take a different view of the reasonableness of the EPA's resolution of ambiguous provisions after reviewing the EPA's current interpretation of the statute.

37. Comments that the EPA has recently approved affirmative defense provisions through various SIP actions and, therefore, these provisions are proper under the EPA's interpretation of the CAA.

Comment: One commenter noted that the EPA has never taken issue with the affirmative defense provisions in states' SIPs across the many instances where the EPA has reviewed the states' later SIP submissions. The implication of the commenters' argument is that if the EPA has previously approved a SIP submission and directly or indirectly reapproved an affirmative defense provision in the past, this means that the affirmative defense provision still meets CAA requirements.

Response: The EPA disagrees with this comment. As explained in the EPA's response in section VIII.D.18 of this document, when the EPA takes final action on a state's SIP submission, this does not necessarily entail reexamination and reapproval of every provision in the existing SIP. The EPA often only examines the specific SIP provision the state seeks to revise in the SIP submission, which may not include any affirmative defense provisions. To the extent the EPA did review and approve any affirmative defense provision consistent with its prior interpretation of the CAA that narrowly tailored affirmative defenses were appropriate, the EPA has fully explained why it is now revising that interpretation such that past action based on the earlier interpretation would no longer provide precedent for the EPA's actions. As part of this final action, applying its revised SSM Policy, the EPA is taking action to address affirmative defense provisions in SIPs. Since the issuance of the court's opinion in NRDC v. EPA, the EPA has similarly taken steps in its own ongoing NSPS and NESHAP rulemakings to ensure that any existing affirmative defense provisions are removed and that no affirmative defenses are proposed or finalized.[64]

38. Comments that affirmative defense provisions function as structured state “enforcement discretion” and are an important tool for states to prioritize enforcement activities.

Comment: A state commenter characterized the affirmative defense contained in the state's SIP as an “enforcement discretion” tool that supports the state's regulation of excess emissions during malfunction events and promotes preventive measures, proper monitoring and reporting by sources. The state asserted that removal of the affirmative defense provision from the SIP would require the state to address and track violations that are not a high priority to the state agency. The state argued that the affirmative defense provision provides certainty to the regulated community by providing structure to how the state will exercise its enforcement discretion. The state expressed concern that without the affirmative defense, there will be uncertainty for the regulated community and less incentive for sources to make repairs and submit excess emissions reports promptly. The commenter explained that state law requires reporting of emission events that exceed an established “reportable” quantity and that this prompt reporting allows the state agency to evaluate each event reported quickly. In investigating reports of emission events, the state claimed, it “exercises enforcement discretion only in cases in which it determines that each affirmative defense criteria is met,” and the state claimed that elimination of the affirmative defense provision would result in an increase of unavoidable emissions being treated as violations. In general, the state objected to the elimination of the affirmative defense provision because it would strain the state agency's enforcement resources.

Response: These comments concerning the state's use of affirmative defense criteria in structuring the exercise of its enforcement discretion (e.g., determining whether to bring an enforcement action or to further investigate an emissions events) appear to be based on a misunderstanding of the SNPR. This SIP call action directing states to remove affirmative defense provisions from SIPs would not prevent the state from applying such criteria in the exercise of its own enforcement discretion. For example, the state is free to consider factors such as a facility's efforts to comply and the facility's compliance history in determining whether to investigate an excess emissions event or whether to issue a notice of violation or otherwise pursue enforcement. Application of such criteria may well be useful and appropriate to the state in determining the best way to allocate its own enforcement resources. So long as a state does not use the criteria in such a way that the state fails to have a valid enforcement program as required by section 110(a)(2)(C), the state is free to use criteria like those of an affirmative defense as a way to “structure” its exercise of its own enforcement discretion.

However, as explained in the SNPR, the EPA's view is that SIPs cannot include affirmative defense provisions that alter the jurisdiction of the federal court to assess penalties in judicial enforcement proceeding for violation of CAA requirements. The EPA has determined that the specific affirmative Start Printed Page 33872defense provisions at issue in the SIP of the state commenter are inconsistent with CAA requirements for SIP provisions. In addition, the EPA interprets the CAA to bar “enforcement discretion” provisions in SIPs that operate to impose the enforcement discretion decisions of the state upon the EPA or any other parties who may seek to enforce pursuant to section 304. Pursuant to the requirements of sections 110(k), 110(l) and 193, the EPA has both the authority and the responsibility to evaluate SIP submissions to assure that they meet the requirements of the CAA. Pursuant to section 110(k)(5), the EPA has authority and discretion to take action to require states to revise previously approved SIP provisions if they do not meet CAA requirements.

39. Comments that requiring states to adopt emissions standards that are not achievable at all times and then expecting courts to render those standards lawful by employing discretion in the assessment of penalties is contradictory to CAA section 307(b)(2), which mandates pre-enforcement review.

Comment: Commenters claimed that courts have consistently held that regulators cannot rely on enforcement discretion to establish the achievability of emission limitations. The commenters referred to a 1973 case addressing NSPS regulations in which they claimed the court remanded the standard to the EPA to support an “at all times” standard.

Commenters further asserted that reliance on the discretion of judges to decide whether and to what extent penalties are appropriate is also not lawful. The commenters claimed that if a state establishes an emission limitation on the basis that it is achievable, then the standard must be achievable under all circumstances to which it applies. The commenters argued that if a state adopts an emission limitation that is not achievable under all conditions, then the state must explain how the standard can be reasonably enforced. The commenters concluded that a numerical emission limitation that cannot be achieved by sources at all times is not enforceable because no amount of penalty can deter the violating conduct. The commenters recognized that it is reasonable for states to exercise enforcement discretion under circumstances when an emission limitation cannot be met but argued that it is not reasonable to adopt a SIP that puts sources in a state of repeated noncompliance.

Commenters further claimed that the decision in NRDC v. EPA, while allowing sources to argue unjust punishment should not be imposed, conflicts with the CAA's requirements for pre-enforcement review. The commenters stated that emission limitations that could have been challenged at the time of promulgation are not subject to judicial review in an enforcement proceeding. Thus, the commenters claimed that any challenges to the achievability of a SIP emission limitation must be made at the time the emission limitation is promulgated and that judges will not consider such arguments in the context of an enforcement action. The commenters argued that forcing states to adopt unachievable standards and then prohibiting them from including an affirmative defense for penalties for unavoidable exceedances creates a dilemma Congress sought to avoid.

Response: A number of the arguments that the commenters are raising appear to go beyond the scope of the affirmative defense issues in the SNPR. In the SNPR, the EPA revised its prior proposal with respect to issues related exclusively to affirmative defense provisions in SIPs. These comments are similar to an argument that any period during which an emission limitation cannot be met must be deemed not to be a violation of the standard. The EPA is addressing these types of issues, to the extent that they were raised in comments on the February 2013 proposal. The EPA does note, however, that the Agency is not requiring states to adopt standards that cannot be met and then providing that states rely only on enforcement discretion to address periods of noncompliance. As the EPA has already noted, states may choose to adopt standards that are different from the underlying standards for periods where the underlying standards cannot otherwise be met.

The EPA also disagrees with the comments that the holding in NRDC v. EPA is inconsistent with section 307(b)(2) that provides that regulations that could have been challenged at promulgation cannot later be challenged in an enforcement action. Nothing in section 307(b) limits the ability of the court to consider the criteria of section 113(e), such as good faith efforts of a source to comply in assessing penalties. Neither the decision in NRDC v. EPA nor this SIP call action requires states to adopt standards that cannot be met. Moreover, the public, including regulated sources, will be able to comment on the revised emission limitations developed by states in response to this SIP call. If an interested party believes that the state has adopted unachievable emission limitations, that party can challenge such standards at the time of adoption.

40. Comments that the EPA should announce that it no longer recognizes existing affirmative defense provisions, effective immediately.

Comment: Commenters claimed that because the court held in NRDC v. EPA that the EPA was without authority to interpret the CAA to allow affirmative defenses, the EPA should explicitly state that it no longer recognizes such provisions immediately. The commenters argued that by proceeding under its authority under section 110(k)(5), the EPA is providing states 18 months to remove the affirmative defense provisions and that thereafter the EPA will take additional time to act upon those SIP revisions under section 110(k). The commenters argued that this in effect allows sources to continue relying on affirmative defense provisions that are not consistent with CAA requirements for a period of years into the future. Because the EPA did not have authority to approve the affirmative defense provisions in the first instance, the commenters contended that the Agency should simply declare that the affirmative defense provisions are now null and void.

Response: The EPA understands the concerns raised by the commenters but does not agree that it is inappropriate for the Agency to proceed under section 110(k)(5). The affirmative defense provisions at issue in this action are part of the EPA-approved SIPs for the affected states. The EPA, as well as states, cannot unilaterally change provisions of the approved SIP without following appropriate notice-and-comment procedures. To the extent that the commenters were advocating that the EPA should have proceeded under its authority to do error corrections under section 110(k)(6) rather than a SIP call under section 110(k)(5), the Agency has explained in detail in the February 2013 proposal and this document why it is more appropriate to proceed via SIP call instead. Under the SIP call process, the EPA cannot declare approved SIP provisions null and void prior to state submission and Agency approval of revised SIP provisions.

41. Comments that instead of acting through a nationwide SIP call action, the EPA should have worked individually with states to correct any deficient SIP provisions.

Comment: One commenter stated that rather than using a SIP call to address SSM issues in existing SIPs, the EPA should work with each state's air agency individually to identify and address SIP deficiencies and work through the Start Printed Page 33873normal rulemaking and SIP revision processes to correct any identified problems.

Response: The CAA provides a mechanism specifically for the correction of flawed SIPs. Section 110(k)(5) provides: “Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to . . . comply with any requirement of [the Act], the Administrator shall require the State to revise the plan as necessary to correct such inadequacies.” This type of action is commonly referred to as a “SIP call.” The EPA, in this action, is using a SIP call to notify states of flawed provisions in SIPs and initiate a process for correction of those provisions.

The EPA, largely through its Regional Offices, has individually reviewed each state provision subject to the SIP call. The EPA will work closely with each state, during future rulemaking actions taken by states to adopt SIP revisions and then subsequent actions by the EPA, to determine whether these adopted SIP revisions meet the mandate of the SIP call and are consistent with CAA requirements. As part of these actions, each individual state will work closely with the EPA to address the SIP deficiencies identified in this action.

42. Comments that the EPA should not consider those comments on the February 2013 proposal that concern affirmative defense provisions in SIPs to no longer be relevant.

Comment: One commenter disagreed with the EPA's decision not to respond to certain comments submitted on the February 2013 proposal, to the extent the comments applied to issues related to affirmative defense provisions in SIPs generally or to issues related to specific affirmative defense provisions identified by the Petitioner, on a basis that those comments are no longer relevant if the EPA finalizes its action as proposed in the SNPR. According to the commenter, the EPA's interpretation of the CAA has not changed so as to exclude the other SSM provisions in the proposed action, and this alone shows that the comments submitted on the February 2013 proposal are still relevant.

Response: The EPA's proposed action on the Petition in the SNPR superseded the February 2013 proposal with respect to the issues related to affirmative defense provisions in SIPs. As explained in detail in the SNPR, after the February 2013 proposal, a federal court ruled that the CAA precludes authority of the EPA to create affirmative defense provisions applicable to private civil suits in its own regulations. As a result, the EPA issued the SNPR to propose applying a revised interpretation of the CAA to affirmative defense provisions in SIPs consistent with the reasoning of court's decision in NRDC v. EPA. The EPA supplemented and revised its proposed response to the issues raised in the Petition to the extent they concern affirmative defenses in SIPs, and the EPA solicited comment on its revised proposed response. Because the EPA's interpretation of the CAA with respect to the legal basis for affirmative defense provisions in SIPs changed from the time of the February 2013 proposal to the SNPR, comments on the February 2013 proposal, to the extent they concern affirmative defenses in SIPs, are not relevant to the EPA's revised proposed action. For example, comments on the February 2013 proposal that argue that the EPA was wrong to interpret the CAA to allow affirmative defense provisions for malfunction events but not for startup or shutdown events are not relevant when the Agency's interpretation of the CAA is now that no such affirmative defense provisions are valid. Similarly, comments that the criteria that the EPA previously recommended for valid affirmative defense provisions were too many, too few, too stringent or too lax simply have no relevance when the EPA does not interpret the CAA to allow any such affirmative defense provisions regardless of the number, nature or stringency of the criteria for qualifying for the affirmative defense. The EPA believes that it is reasonable for the Agency to determine that comments that have no bearing on the proposed action concerning affirmative defense provisions in the SNPR are not relevant. Because the EPA is finalizing the action on the Petition as proposed in the SNPR concerning affirmative defense provisions in SIPs, it is doing so based on evaluation of the comments that are relevant to the SNPR.

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

A. What the Petitioner Requested

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

The Petitioner argued that many SIPs currently contain provisions that are inconsistent with the requirements of the CAA. According to the Petitioner, these provisions fall into two general categories: (1) Exemptions for excess emissions by which such emissions are not treated as violations; and (2) enforcement discretion provisions that may be worded in such a way that a decision by the state not to enforce against a violation could be construed by a federal court to bar enforcement by the EPA under CAA section 113, or by citizens under CAA section 304.

First, the Petitioner expressed concern that many SIPs have either automatic or discretionary exemptions for excess emissions that occur during periods of SSM. Automatic exemptions are those that, on the face of the SIP provision, provide that any excess emissions during such events are not violations even though the source exceeds the otherwise applicable emission limitations. These provisions preclude enforcement by the state, the EPA or citizens, because by definition these excess emissions are defined as not violations. Discretionary exemptions or, more correctly, exemptions that may arise as a result of the exercise of “director's discretion” by state officials, are exemptions from an otherwise applicable emission limitation that a state may grant on a case-by-case basis with or without any public process or approval by the EPA, but that do have the effect of barring enforcement by the EPA or citizens. The Petitioner argued that “[e]xemptions that may be granted by the state do not comply with the enforcement scheme of title I of the Act because they undermine enforcement by the EPA under section 113 of the Act or by citizens under section 304.”

The Petitioner explained that all such exemptions are fundamentally at odds with the requirements of the CAA and with the EPA's longstanding interpretation of the CAA with respect to excess emissions in SIPs. SIPs are required to include emission limitations designed to provide for the attainment and maintenance of the NAAQS and for protection of PSD increments. The Petitioner emphasized that the CAA requires that such emission limitations be “continuous” and that they be established at levels that achieve sufficient emissions control to meet the required CAA objectives when adhered Start Printed Page 33874to by sources. Instead, the Petitioner contended, exemptions for excess emissions through “loopholes” in SIP provisions often result in real-world emissions that are far higher than the level of emissions envisioned and planned for in the SIP.

Second, the Petitioner expressed concern that many SIPs have provisions that may have been intended to govern only the exercise of enforcement discretion by the state's own personnel but are worded in a way that could be construed to preclude enforcement by the EPA or citizens if the state elects not to enforce against the violation. The Petitioner contended that “any SIP provision that purports to vest the determination of whether or not a violation of the SIP has occurred with the state enforcement authority is inconsistent with the enforcement provisions of the Act.”

After articulating these overarching concerns with existing SIP provisions, the Petitioner requested that the EPA evaluate specific SIP provisions identified in the separate section of the Petition titled, “Analysis of Individual States' SSM Provisions.” [67] In that section, the Petitioner identified specific provisions in the SIPs of 39 states that the Petitioner believed to be inconsistent with the requirements of the CAA and explained in detail the basis for that belief. In the conclusion section of the Petition, the Petitioner listed the SIP provisions in each state for which it seeks a specific remedy. A more detailed explanation of the Petitioner's arguments appears in the 2013 February proposal.[68]

B. What the EPA Proposed

In its February 2013 proposal, the EPA proposed to deny in part and to grant in part the Petition with respect to this two-part request. The EPA explained its longstanding interpretations of the CAA with respect to SIP provisions that apply to excess emissions during SSM events. The EPA also agreed that automatic exemptions, discretionary exemptions via director's discretion, ambiguous enforcement discretion provisions that may be read to preclude EPA or citizen enforcement and affirmative defense provisions can interfere with the overarching objectives of the CAA, such as attaining and maintaining the NAAQS, protecting PSD increments and improving visibility. Such provisions in SIPs can interfere with effective enforcement by air agencies, the EPA and the public to assure that sources comply with CAA requirements, and such interference is contrary to the fundamental enforcement structure provided in CAA sections 113 and 304.

Accordingly, the EPA evaluated each of the specific SIP provisions that the Petitioner identified to determine whether it is consistent with CAA requirements for SIP provisions. The EPA conducted this evaluation in light of its interpretations of the CAA reflected in the SSM Policy and recent court decisions pertaining to relevant issues. In section IX of the February 2013 proposal, the EPA provided its proposed view with respect to each of these SIP provisions. The EPA solicited comment on its proposed grant or denial of the Petition for each of the specific SIP provisions and its rationale for the proposed action. Through consideration of the overarching issues raised by the Petition, and informed by the evaluation of the specific SIP provisions identified in the Petition as a group, the EPA also determined that it was necessary to reiterate, clarify and amend its SSM Policy. The EPA thus took comment on its interpretations of the CAA set forth in the SSM Policy in order to assure that it provides comprehensive and up-to-date guidance to states concerning SIP provisions applicable to emissions from sources during SSM events.

C. What Is Being Finalized in This Action

The EPA is taking final action to deny in part and to grant in part the Petition with respect to the request to find specific SIP provisions inconsistent with the CAA as interpreted by the Agency in the SSM Policy. The EPA is also taking final action to grant the Petition on the request to make a finding of substantial inadequacy and to issue a SIP call for specific existing SIP provisions. The basis for the SIP call is that these provisions include an automatic exemption, a discretionary exemption, an inappropriate enforcement discretion provision, an affirmative defense provision, or other form of provision that is inconsistent with CAA requirements for SIP provisions. For those SIP provisions that the EPA has determined to be consistent with CAA requirements, however, the Agency is taking final action to deny the Petition and taking no further action with respect to those provisions. The specific SIP provisions at issue are discussed in detail in section IX of this document.

As a result of its review of the issues raised by the Petition, the EPA is also through this action clarifying, reiterating and updating its SSM Policy to make certain that it provides comprehensive and up-to-date guidance to air agencies concerning SIP provisions to address emissions during SSM events, consistent with CAA requirements. With respect to automatic exemptions from emission limitations in SIPs, the EPA's longstanding interpretation of the CAA is that such exemptions are impermissible because they are inconsistent with the fundamental requirements of the CAA. The EPA has reiterated this point in numerous guidance documents and rulemaking actions and is reaffirming that interpretation in this final action. By exempting emissions that would otherwise constitute violations of the applicable emission limitations, such exemptions interfere with the primary air quality objectives of the CAA (e.g., attainment and maintenance of the NAAQS), undermine the enforcement structure of the CAA (e.g., the requirement that all SIP provisions be legally and practically enforceable by states, the EPA and parties with standing under the citizen suit provision), and eliminate the incentive for emission sources to comply at all times, not solely during normal operation (e.g., incentives to be properly designed, maintained and operated so as to minimize emissions of air pollutants during startup and shutdown or to take prompt steps to rectify malfunctions).

The court's decision in Sierra Club v. Johnson concerning exemptions for SSM events in the EPA's own regulations has reemphasized the fact that emission limitations under the CAA are required to be continuous. The court held that this statutory requirement precludes emission limitations that would allow periods during which emissions are exempt. Moreover, from a policy perspective, the EPA notes that the existence of impermissible exemptions in SIP provisions has the potential to lessen the incentive for development of control strategies that are effective at reducing emissions during certain modes of source operation such as startup and shutdown, even while such strategies could become increasingly helpful for various purposes, including attaining and maintaining the NAAQS. The issue of automatic exemptions for SSM events in SIP provisions is discussed in more detail in section VII.A of this document.

With respect to discretionary exemptions from emission limitations in SIPs, the EPA also has a longstanding interpretation of the CAA that prohibits “director's discretion” provisions in SIPs if they provide unbounded discretion to allow what would amount to a case-specific revision of the SIP Start Printed Page 33875without meeting the statutory requirements of the CAA for SIP revisions. In particular, the EPA interprets the CAA to preclude SIP provisions that provide director's discretion authority to create discretionary exemptions for violations when the CAA would not allow such exemptions in the first instance. As with automatic exemptions for excess emissions during SSM events, discretionary exemptions for such emissions interfere with the primary air quality objectives of the CAA, undermine the enforcement structure of the CAA and eliminate the incentive for emission sources to minimize emissions of air pollutants at all times, not solely during normal operations. Through this action, the EPA is reiterating its interpretation of the provisions of the CAA that preclude unbounded director's discretion provisions in SIPs. The EPA is also explaining two ways in which air agencies may elect to correct a director's discretion type of deficiency. The issue of director's discretion in SIP provisions applicable to SSM events is discussed in more detail in section VII.C of this document.

With respect to enforcement discretion provisions in SIPs, the EPA also has a longstanding interpretation of the CAA that SIPs may contain such provisions concerning the exercise of discretion by the air agency's own personnel, but such provisions cannot bar enforcement by the EPA or by other parties through a citizen suit.[69] In the event such a SIP provision could be construed by a court to preclude EPA or citizen enforcement, that provision would be at odds with fundamental requirements of the CAA pertaining to enforcement. Such provisions in SIPs can interfere with effective enforcement by the EPA and the public to assure that sources comply with CAA requirements, and this interference is contrary to the fundamental enforcement structure provided in CAA sections 113 and 304. The issue of enforcement discretion in SIP provisions applicable to SSM events is discussed in more detail in section VII.D of this document.

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

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

The EPA received numerous comments, both supportive and adverse, concerning the Agency's decision to propose action on the Petition with respect to the overarching issues raised by the Petitioner. A number of these comments also raised important issues concerning the rights of citizens to petition their government, the process by which the EPA evaluated the issues raised in the Petition and the relative authorities and responsibilities of states and the EPA under the CAA. Many commenters raised the same conceptual issues and arguments. For clarity and ease of discussion, the EPA is responding to these overarching comments, grouped by topic, in this section of this document. The responses to more specific substantive issues raised by commenters on the EPA's interpretation of the CAA in the SSM Policy appear in other sections of this document that focus on particular aspects of this action.

1. Comments that the EPA should not have responded to the petition for rulemaking or that the EPA was wrong to do so.

Comment: Some commenters opposed the EPA's proposed action on the Petition in the February 2013 proposal entirely and alleged that it is “sue-and-settle rulemaking” or “regulation by litigation.” Commenters stated that the “proposed rule and corresponding aggressive deadline schedule stem from” a settlement of litigation brought by Sierra Club to respond to the Petition.

Some commenters expressed concern that the EPA's proposed action was made in response to a settlement agreement, through a process that, the commenters alleged, did not permit any opportunity for participation by affected parties. Other commenters, believing that the EPA's proposed action was taken to fulfill a consent decree obligation, argued that consent decree deadlines “often do not allow EPA enough time to write quality regulations” or would not allow “opportunity to properly research and investigate the effect of State SSM provisions or the State's ability to meet the NAAQS, or to determine whether the SSM provisions are somehow inconsistent with the CAA.” The commenters alleged that the process “bypasses the traditional rulemaking concepts of transparency and effective public participation” and “sidesteps the proper rulemaking channels and undercuts meaningful opportunities for those affected by the proposed rule to develop and present evidence that would support a competing and fully informed viewpoint on the substantive issues during the rulemaking process.”

Response: The EPA believes that these comments reflect fundamental misunderstandings about this action. This is a rulemaking in which the EPA is taking action to respond to a petition for rulemaking, and it has undergone a full notice-and-comment rulemaking process as provided for in the CAA. In the February 2013 proposal, the EPA proposed to take action on the Petition. Under the CAA, the APA and the U.S. Constitution, citizens have the right to petition the government for redress. For example, the APA provides that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” [70] When citizens file a petition for rulemaking, they are entitled to a response to such petition—whether that response is to grant the petition, to deny the petition, or to partially grant and partially deny the petition as has occurred in this rulemaking action.

Some of these commenters expressed concern that the EPA's action on the Petition was the result of the Agency's obligations under a consent decree or settlement agreement and that this fact in some way invalidates the substantive action. First, the EPA notes that the action was undertaken not in response to a consent decree but rather in Start Printed Page 33876response to a settlement agreement. Second, the EPA notes that this settlement agreement was entered into by the Agency and the Sierra Club in order to resolve allegations that the EPA was not correctly evaluating and acting upon SIP submissions from states. In particular, the Sierra Club claimed that the EPA was illegally ignoring existing deficiencies in the SIPs of many states, including existing allegedly deficient provisions concerning the treatment of excess emissions during SSM events, when acting on certain SIP submissions. As a result, the Sierra Club alleged, the EPA was acting in contravention of its obligations under the CAA and various consent decrees and thus should be held in contempt for failure to address these issues. In order to resolve these allegations, the EPA agreed only to take action on a petition for rulemaking and to take the action that it deemed appropriate after evaluation of the allegations in the petition. The terms of the settlement agreement underwent public comment and are a matter of public record and are in the docket for this rulemaking.[71]

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

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

Similarly, when the EPA ascertained that it was necessary to revise its proposed action on the Petition with respect to affirmative defenses in SIP provisions, the Agency issued the SNPR. In that supplemental proposal, in September 2014, the EPA fully explained the issues and took comment on the questions related to whether affirmative defense provisions are consistent with CAA requirements concerning the jurisdiction of courts in enforcement actions, and thus whether such provisions are consistent with fundamental CAA requirements for SIP provisions. The EPA provided a public comment period ending November 6, 2014, which is 50 days from the date the SNPR was published in the Federal Register and 62 days from the date the SNPR was posted on the EPA's Web site. The EPA believes that the comment period was sufficient given that the subject of the SNPR was limited to the narrow issue of whether affirmative defense provisions are consistent with CAA requirements. The EPA also held a public hearing on the SNPR on October 7, 2014 on the specific topic of the legitimacy of affirmative defense provisions in SIPs. In response to the SNPR, the EPA received over 20,000 public comments, including at least 9 comment letters from states and local governments, over 40 comment letters from industry commenters, at least 6 comment letters from public interest groups, and many thousands of comments from individual commenters.

2. Comments that EPA's action on the Petition violates “cooperative federalism.”

Comment: Many commenters asserted that the EPA's proposed action on the Petition and the issuance of this SIP call violate principles of cooperative federalism because they impermissibly substitute the EPA's judgment for that of the states in the development of SIPs. This argument was raised by both air agency and industry commenters.

These commenters described the relationship between states and the EPA with respect to SIPs in general. The commenters stated that Congress designed the CAA as a regulatory partnership between the EPA and the states, i.e., a relationship based on “cooperative federalism.” Under cooperative federalism, the commenters noted, the EPA has the primary responsibility to identify air pollutants that endanger the public health and welfare and to set national standards for those pollutants. By contrast, the states have primary responsibility to determine how to achieve those national standards by developing federally enforceable measures through SIPs. According to these commenters, however, once a state has made a SIP submission, the EPA's role is relegated exclusively to the ministerial function of reviewing whether the SIP submission will result in compliance with the NAAQS. Similarly, the commenters claim that when EPA is evaluating in the context of a SIP call whether a state's existing SIP continues to meet applicable CAA requirements, the only relevant question is whether the existing SIP will result in compliance with the NAAQS. Thus, the commenters claimed that by finding certain existing SIP provisions substantially inadequate because they are legally deficient to meet CAA requirements for SIP provisions, the EPA is usurping state authority under the cooperative-federalism structure of the CAA.

To support this view, many commenters cited to the “Train-Virginia line of cases,” named for the U.S. Supreme Court case Train v. Natural Resources Defense Council, Inc.,[74] and to the D.C. Circuit case Virginia v. EPA.[75] The D.C. Circuit has described these cases as defining a “federalism bar” that constrains the EPA's authority with respect to evaluation of state SIPs Start Printed Page 33877under section 110.[76] Many commenters asserted that this federalism bar limits the EPA's oversight of state SIPs exclusively to whether a SIP will result in compliance with the NAAQS. The commenters evidently construe “compliance with the NAAQS” very narrowly to mean the SIP will factually result in attainment of the NAAQS, regardless of whether the SIP provisions in fact meet all applicable CAA requirements (e.g., the requirement that the SIP emission limitations be continuous and enforceable). Accordingly, most of these commenters selectively quoted or cited a passage in Train,[77] and similar passages in circuit court opinions following Train, for the proposition that the EPA cannot issue a SIP call addressing the SIP provisions at issue in this SIP call action. Some of these commenters asserted that if the EPA were to finalize this action, the states would have “nothing left” of their discretion in SIP development and implementation in the future.

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

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

In particular, this SIP call action concerns whether SIP provisions satisfy section 110(a)(2)(A), which requires that each SIP “[shall] include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this chapter.”

As explained in the February 2013 proposal, the automatic and discretionary exemptions for emissions from sources during SSM events at issue in this action fail to meet this most basic SIP requirement and are also inconsistent with the enforcement requirements of the CAA. Similarly, the enforcement discretion provisions at issue in this action that have the effect of barring enforcement by EPA or citizens fail to meet this requirement for enforceable emission limitations by interfering with the enforcement structure of the CAA as established by Congress. The affirmative defense provisions at issue are similarly inconsistent with the requirement that SIPs provide for enforcement of the NAAQS and also contravene the statutory jurisdiction of courts to determine liability and to impose remedies for violations of SIP requirements. Each of these types of deficient SIP provisions is thus inconsistent with legal requirements of the CAA for SIP provisions. Contrary to the claims of many commenters, the EPA has authority and responsibility to assure that a state's SIP provisions in fact comply with fundamental legal requirements of the CAA as part of the obligation to ensure that SIPs protect the NAAQS.[81]

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

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

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

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

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

The touchstone of the cooperative-federalism concept outlined in the Train-Virginia line of cases is that, under the authority of section 110, the EPA may not legally or functionally require a state to adopt a specific control measure in its SIP in response to a SIP call.[95] On this point, the DC Circuit's opinion in EME Homer City was largely in line with Train, Virginia, and other DC Circuit cases. In that decision, the court described the Train-Virginia federalism bar as prohibiting the EPA “from using the SIP process to adopt specific control measures.” [96] The EME Homer City court did not more broadly hold that section 110(a)(2) imposes no independent limits on state discretion Start Printed Page 33879by requiring the states to meet legal requirements for SIP provisions, or that the EPA is prohibited from either interpreting 110(a)(2)'s basic requirements or reviewing state SIPs for compliance with those requirements. Accordingly, the EPA believes that to the extent that the DC Circuit's EME Homer City decision is relevant to this action, the decision in fact supports the basic principle that the EPA has authority and responsibility to assure that states comply with legal requirements of the CAA applicable to SIP provisions.

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

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

Clearly, in this SIP call the EPA is leaving the states the freedom to correct the inappropriate provisions in any manner they wish as long as they comply with the constraints of section 110(a)(2).

Finally, this view is consistent with Appalachian Power Co. v. EPA, where the DC Circuit reiterated that Virginia “disapproved the EPA's plan to reject SIPs that did not incorporate particular limits upon emissions from new cars.” [101] The specific controls discussed in these cases are quite different, both as a legal matter and functionally, from the statutory constraints on the states' exercise of discretion that the EPA is interpreting and applying in this action.[102]

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

The EPA emphasizes that this action also allows states “real choice” concerning their SIP provisions, so long as the provisions are consistent with applicable requirements. For example, this SIP call does not establish any specific, source-by-source limitations. To the contrary, as described in section VII.A of this document, emission limitations meeting the requirements of section 110(a)(2)(A) may take a variety of forms. Under section 110(a)(2)(A), states are free to include in their SIPs whatever emission limitations they wish, provided the states comply with applicable legal requirements. Among those requirements are that an emission limitation in a SIP must be an “emission limitation” as defined in section 302(k) and that all controls—emission limitations and otherwise—must be sufficiently “enforceable” to ensure compliance with applicable CAA requirements. The SSM provisions at issue in this SIP call subvert both of these legal requirements.

3. Comments that the EPA should expand the rulemaking to include additional SIP provisions that the commenters consider deficient with respect to SSM issues.

Comment: Some commenters requested that the EPA expand its February 2013 proposed action to include additional SIP provisions that the commenters consider deficient with respect to SSM issues. Specifically, commenters identified additional SIP provisions in Wisconsin (a state not identified by the Petitioner) and New Hampshire (a state for which the Petitioner did specifically identify other SIP provisions).

One commenter argued that “[i]t would substantially ease the administrative burden on EPA as well on public commenters” and “ensure that companies in all states are treated equally” if the EPA were to include “all SIPs with faulty SSM provisions in [a] consolidated SIP call.” Another commenter noted that “the interests of regulatory efficiency will be served” by adding additional SIP provisions to the SIP call because “all changes required by the policy underlying this rulemaking” to state SIPs would then be made at once.

Response: The EPA acknowledges the requests made by the commenters concerning additional SIP provisions that may be inconsistent with CAA Start Printed Page 33880requirements. The EPA also agrees with the points made by the commenters concerning the potential benefits of expanding the rulemaking to include evaluation of additional provisions. However, in the February 2013 proposal the EPA elected to review the specific SIP provisions identified by the Petitioner in the SIPs of only the 39 states (and jurisdictions) identified by the Petitioner to determine whether they were consistent with the CAA as interpreted in the EPA's SSM Policy as requested in the Petition.[106] Although there may be additional SIP provisions that are deficient, the EPA determined that it would first focus its review on the SIP provisions for which possible deficiencies had already been identified by the Petitioner.[107] Accordingly, the February 2013 proposal addressed only those states identified in the Petition, in order to use EPA and state resources most efficiently.

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

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

The SIP call promulgated by the EPA in this action applies only to the particular SIP provisions identified in this document, and the scope of the SIP call for each state is limited to those provisions. However, if states of their own accord wish to revise SIP provisions, beyond those identified in this SIP call, that they believe are inconsistent with the SSM Policy and the CAA, the EPA will review and act on those SIP revisions in accordance with CAA sections 110(k), 110(l) and 193.

4. Comments that the EPA should create regulatory text in 40 CFR part 51 to forbid SSM exemptions in SIP provisions if the CAA precludes them.

Comment: Commenters argued that the EPA, before issuing a SIP call requiring states to revise SIP provisions containing exemptions for emissions during SSM events, should first have promulgated specific regulations articulating that such exemptions are precluded by the CAA. According to commenters, taking this approach would have given states more certainty and clarity and provided states with more time to develop SIP revisions consistent with those regulatory requirements. Commenters also asserted that it is not appropriate for the EPA to proceed with a SIP call to states without prior rulemaking to create regulatory provisions explicitly prohibiting SSM exemptions in SIPs, given that the Agency has previously approved the SIP provisions at issue.

Response: The EPA disagrees with the commenters' argument that the Agency must first promulgate regulations to make clear that exemptions for emissions during SSM events are not permissible in SIPs, prior to issuing this SIP call. The EPA likewise disagrees with the implication that its authority to promulgate a SIP call is restricted only to those issues for which there is specifically applicable regulatory text, as opposed to requirements related to statutory provisions, court decisions or other legal or factual bases for a determination that an existing SIP provision is substantially inadequate to meet CAA requirements. The EPA disagrees with the commenters for several reasons.

First, the CAA does not impose a general obligation upon the Agency to promulgate regulations applicable to all SIP requirements. Although the EPA has elected to promulgate regulations to address a broad variety of issues relevant to SIPs,[111] the Agency is not obligated to promulgate regulations Start Printed Page 33881unless there is a specific statutory mandate that it do so.[112] In addition, the EPA has authority under section 301 to promulgate such regulations as it deems necessary to implement the CAA (e.g., to fill statutory gaps left by Congress for the EPA to fill or to clarify ambiguous statutory language). With respect to SIP requirements, however, the EPA has elected to promulgate regulations or to issue guidance to states to address different requirements, as appropriate.[113] In short, there is no specific statutory requirement that the EPA promulgate regulations with respect to the types of deficiencies in SIP provisions at issue in this action prior to issuing a SIP call.

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

Finally, the EPA's authority under section 110(k)(5) is not limited, expressly or otherwise, solely to inadequacies related to regulatory requirements. To the contrary, section 110(k)(5) refers broadly to attainment and maintenance of the NAAQS, adequate mitigation of interstate transport and compliance with “any requirement of” the CAA. In addition, section 110(k)(5) specifically contemplates situations such as this one, “whenever” the EPA finds previously approved SIP provisions to be deficient. Nothing in the CAA requires the EPA to conduct a separate rulemaking clarifying its interpretation of the CAA prior to issuance of this SIP call. For the types of deficiencies at issue in this action, the EPA believes that the statutory requirements of the CAA itself and recent court decisions concerning those statutory provisions provide sufficient basis for this SIP call.

For the foregoing reasons, the EPA disagrees that before requiring states to revise SIPs that contain provisions with SSM exemptions, the EPA first must promulgate regulations explicitly stating that such exemptions are impermissible under the CAA. In addition, the EPA notes that although it is not promulgating generally applicable regulations in this action, it is nonetheless revising its guidance in the SSM Policy through rulemaking and has thereby provided states and other parties the opportunity to comment on the Agency's interpretation of the CAA with respect to this issue.

5. Comments that the EPA did not provide a sufficiently long comment period on the proposal in general or as contemplated in Executive Order 13563.

Comment: A number of commenters argued that the comment period provided by the EPA for the February 2013 proposal was “at odds with” Executive Order 13563. The commenters alleged that the comment period was “unconscionably short,” even so short as to be “arbitrary and capricious” because, in order to provide comments, “impacted States and industries must perform the data collection and analysis necessary to evaluate the need for the proposed rule and its impacts.” Further, the commenters alleged, the “EPA's failure and refusal to perform any technical analyses of the feasibility of source operations after the elimination of SSM provisions or the likely capital and operating costs of additional control equipment required to meet numeric standards during all operational periods has denied the States, the affected parties, and the public a meaningful opportunity to evaluate and comment upon the proposed rule.” Finally, one commenter asserted that Executive Order 13563 requires that “[b]efore issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected.” [115] The commenter claimed that because the EPA allegedly “failed to seek the views of those who are likely to be affected and those who are potentially subject to such rulemaking, EPA's actions ignore the requirements of the Executive Order.”

Response: The EPA disagrees that it has not provided sufficiently long comment periods to address the specific issues relevant to this action. As described in section IV.D.1 of this document, the EPA has followed all steps of a notice-and-comment rulemaking, as governed by applicable statutes, regulations and executive orders, including a robust process for public participation. When the EPA initially proposed to take action on the Petition, in February 2013, it simultaneously solicited public comment on all aspects of its proposed response to the issues in the Petition and in particular on its proposed action with respect to each of the specific existing SIP provisions identified by the Petitioner as inconsistent with the requirements of the CAA. In response to requests, the EPA extended the public comment period for this proposal to May 13, 2013, which is 80 days from the date the proposed rulemaking was published in the Federal Register and 89 days from the date the proposed rulemaking was posted on the EPA's Web site.[116] The EPA deemed this extension appropriate because of the issues raised in the February 2013 proposal. The EPA also held a public hearing on March 12, 2013. In response to this proposed action, the EPA received approximately 69,000 public comments, including over 50 comment letters from state and local governments, over 150 comment letters from industry commenters, over 25 comment letters from public interest groups and many thousands of comments from individual commenters. Many of these comment Start Printed Page 33882letters were substantial and covered numerous issues.

Similarly, when the EPA ascertained that it was necessary to revise its proposed action on the Petition with respect to affirmative defenses in SIP provisions, the Agency issued the SNPR. In that supplemental proposal, in September 2014, the EPA fully explained the issues and took comment on the questions related to whether affirmative defense provisions are consistent with CAA requirements concerning the jurisdiction of courts in enforcement actions, and thus whether such provisions are consistent with fundamental CAA requirements for SIP provisions. The EPA provided a public comment period ending November 6, 2014, which is 50 days from the date the SNPR was published in the Federal Register and 62 days from the date the SNPR was posted on the EPA's Web site. The EPA believes that the comment period was sufficient given that the subject of the SNPR was limited to the narrow issue of whether affirmative defense provisions are consistent with CAA requirements. The EPA also held a public hearing on the SNPR on October 7, 2014 on the specific topic of the legitimacy of affirmative defense provisions in SIPs. In response to the SNPR, the EPA received over 20,000 public comments, including at least 9 comment letters from states and local governments, over 40 comment letters from industry commenters, at least 6 comment letters from public interest groups, and many thousands of comments from individual commenters.

Executive Order 13563 provides that each agency should “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days.” [117] The length of the Agency's comment period for the original proposed rulemaking well-exceeded this standard. The EPA also facilitated comment on the action by providing a full and detailed evaluation of the relevant issues in the February 2013 proposal, the background memorandum supporting the proposal and the SNPR.

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

The EPA also disagrees with respect to the claims of commenters that the comment period was insufficient because the EPA should provide time for commenters to evaluate and analyze fully the possible ultimate impacts of the SIP call upon particular sources, to determine what type of SIP revision by a state is appropriate in response to a SIP call, or to ascertain what specific new emission limitation or control measure requirement states should impose upon sources in such a future SIP revision. The EPA's action on the Petition concerning specific existing SIP provisions is focused upon whether those existing provisions meet fundamental legal requirements of the CAA for SIP provisions. The EPA is not required to provide a comment period for this action that allows states actually to determine which of the potential forms of SIP revision they may wish to undertake, or to complete those SIP revisions, as part of this rulemaking. The subsequent state and EPA rulemaking processes on the SIP revisions in response to this SIP call action will provide time for further evaluation of the issues raised by commenters.

As explained in the February 2013 proposal, the EPA does not interpret section 110(k)(5) to require it to “prove causation” concerning what precise impacts illegal SIP provisions are having on CAA requirements, such as attainment and maintenance of the NAAQS and enforcement of SIP requirements.[119] Nor is the EPA directing states to adopt a specific control measure in response to the SIP call; the decision as to how to revise the affected SIP provisions in response to the SIP call is left to the states. The state's response to the SIP call will be developed in future rulemaking actions at both the state and federal level which will similarly be subject to full notice-and-comment proceedings. In electing to proceed by SIP call under section 110(k)(5), rather than by error correction under section 110(k)(6), the EPA is providing affected states with the maximum time permitted by statute to determine how best to revise their SIP provisions, consistent with CAA requirements. During this process, the commenters and other stakeholders will have the opportunity to participate in the development of the SIP revision, including decisions such as how the state elects to revise the deficient SIP provisions (e.g., merely to eliminate an exemption for SSM events or to impose an alternative emission limitation applicable to startup and shutdown).

The questions posed by the commenters about what specific emission limitations should apply during startup and shutdown events, what control measures will meet applicable CAA legal requirements, what control measures will be effective and cost-effective to meet applicable legal standards and other similar questions are exactly the sorts of issues that states will evaluate in the process of revising affected SIP provisions. Moreover, these are the same sorts of questions that the EPA will be evaluating when it reviews state SIP submissions made in response to the SIP call. The EPA is not required, by Executive Order 13563 or otherwise, to provide a comment period that would allow for all future actions in response to the SIP call to occur before issuing the SIP call. The EPA anticipates that the commenters will be able to participate actively in the actions that will happen in due course in response to this SIP call.

Finally, the EPA disagrees that it did not adequately seek the views of potentially affected entities prior to issuance of the February 2013 proposal. The EPA alerted the public to the existence of the Petition by soliciting comment on the settlement agreement that obligated the Agency to act upon it, in accordance with CAA section 113(g). Subsequently, EPA personnel communicated about the Petition and the issues it raised in various standing Start Printed Page 33883meetings and conference calls with states and organizations that represent state and local air regulators.

6. Comments that this action is not “nationally applicable” for purposes of judicial review.

Comment: Commenters alleged that the SSM SIP call is not “nationally applicable” for purposes of judicial review. One state commenter cited ATK Launch Systems for the proposition that the specific language of the regulation being challenged indicates whether an action is nationally or locally/regionally applicable. Because a SIP provision subject to this SIP call is state-specific, the commenter argued, it is of concern only for that state and thus the SIP call is a locally applicable action.[120]

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

7. Comments that the EPA was obligated to address and justify the potential costs of the action and failed to do so correctly.

Comment: Several commenters alleged that the EPA has failed to address the costs associated with this rulemaking action appropriately and consistent with legal requirements. In particular, commenters alleged that the EPA is required to address costs of various impacts of this SIP call, including the costs that may be involved in changes to emissions controls or operation at sources and the costs to states to revise permits and revise SIPs in response to the SIP call.

Commenters also alleged that the EPA has failed to comply with Executive Order 12291, Executive Order 12866, Executive Order 13211, the Regulatory Flexibility Act and the Unfunded Mandates Reform Act.

One commenter supported the EPA's approach with respect to cost.

Response: The EPA disagrees with commenters concerning its compliance with the Executive Orders and statutes applicable to agency rulemaking in general. The EPA maintains that it did properly consider the costs imposed by this SIP call action, as required by law. As explained in the February 2013 proposal, to the extent that the EPA is issuing a SIP call to a state under section 110(k)(5), the Agency is only requiring a state to revise its SIP to comply with existing requirements of the CAA. The EPA's action, therefore, would leave to states the choice of how to revise the SIP provision in question to make it consistent with CAA requirements and of determining, among other things, which of several lawful approaches to the treatment of excess emissions during SSM events will be applied to particular sources. Therefore, the EPA considers the only direct costs of this rulemaking action to be those to states associated with preparation and submission of a SIP revision by those states for which the EPA issues a SIP call.[123] Examples of such costs could include development of a state rule, conducting notice and public hearing and other costs incurred in connection with a SIP submission. The EPA notes that it did not consider the costs of potential revisions to operating permits for sources to be a direct cost imposed by this action, because, as stated elsewhere in this document, the Agency anticipates that states will elect to delay any necessary revision of permits until the permits need to be reissued in the ordinary course after revision of the underlying SIP provisions.

The commenters also incorrectly claim that the EPA failed to comply with Executive Order 12291. That Executive Order was explicitly revoked by Executive Order 12866, which was signed by President Clinton on September 30, 1993.

The commenters are likewise incorrect that the EPA did not comply with Executive Order 12866. This action was not deemed “significant” on a basis of the cost it will impose as the commenters claimed. The EPA has already concluded that this action will not result in a rule that may have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, of state, local or tribal governments or communities. The EPA instead determined that, as noted in both the February 2013 proposal (section X.A) and the SNPR (section VIII.A), this action is a “significant regulatory action” as that term is defined in Executive Order 12866 because it raises novel legal or policy issues. Accordingly, it was on that basis that the EPA submitted the February 2013 proposal, the SNPR and the final action to the Office of Management and Budget (OMB) for review. Changes made Start Printed Page 33884in response to OMB review are documented in the docket for this action. The EPA believes it has fully complied with Executive Order 12866.

As stated in the February 2013 proposal, the EPA does not believe this is a “significant energy action” as defined in Executive Order 13211, because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. As described earlier, this action merely requires that states revise their SIPs to comply with existing requirements of the CAA. States have the choice of how to revise the deficient SIP provisions that are the subject of this action; there are a variety of different ways that states may treat the issue of excess emissions during SSM events consistent with CAA requirements for SIPs. This action merely prescribes the EPA's action for states regarding their obligations for SIPs under the CAA, and therefore it is not a “significant energy action” under Executive Order 13211.

With respect to the Regulatory Flexibility Act (RFA), as the EPA explained in the February 2013 proposal, courts have interpreted the RFA to require a regulatory flexibility analysis only when small entities will be subject to the requirements of the rule.[124] This action will not impose any requirements on small entities. Instead, it merely reiterates the EPA's interpretation of the statutory requirements of the CAA. To the extent that the EPA is issuing a SIP call to a state under section 110(k)(5), the EPA is only requiring the state to revise its SIP to comply with existing requirements of the CAA. In turn, the state will determine whether and how to regulate specific sources, including any small entities, through the process of deciding how to revise a deficient SIP provision. The EPA's action itself will not have a significant economic impact on a substantial number of small entities.

As the EPA explained in the February 2013 proposal, this action is not subject to the requirements of the Unfunded Mandates Reform Act (UMRA) because it does not contain a federal mandate that may result in expenditures of $100 million or more for state, local and tribal governments, in the aggregate, or the private sector in any one year. With respect to the impacts on sources, the EPA's action in this rulemaking is not directly imposing costs on any sources. The EPA's action is merely directing states to revise their SIPs in order to bring them into compliance with the legal requirements of the CAA for SIP provisions. In response to the SIP call, the states will determine how best to revise their deficient SIP provisions in order to meet CAA requirements. It is thus the states that will make the decisions concerning how best to revise their SIP provisions and will determine what impacts will ultimately apply to sources as a result of those revisions.

8. Comments that the EPA's action violates procedural requirements of the CAA or the APA, because the EPA is acting on the Petition, updating its SSM Policy and applying its interpretation of the CAA to specific SIP provisions in one action.

Comment: Commenters argued that the EPA's proposed action on the Petition, which includes simultaneous updating of its interpretations of the CAA in the SSM Policy and application of those revised interpretations to existing SIP provisions, is in violation of procedural requirements of the CAA and the APA. According to the commenters, the EPA's combination of actions is a “subterfuge” to avoid notice and comment on the proposed actions in the February 2013 proposal. The commenters claimed that the EPA could only take these actions through two or more separate rulemaking actions. By proposing to update its interpretation of the CAA in the SSM Policy through notice-and-comment rulemaking and proposing to apply its interpretation of the CAA through notice-and-comment rulemaking to existing SIP provisions, the commenters claimed, the EPA has prejudged the outcome of this action.

Response: The EPA does not agree that it was required to take this action in multiple separate rulemakings as claimed by the commenters. First, the EPA notes, the fact that the commenters' allegation—that the Agency failed to proceed by notice and comment—was raised in a comment letter submitted on the February 2013 proposal belies the commenters' overarching procedural argument that the EPA is failing to subject its interpretations of the CAA to notice-and-comment rulemaking. Second, although the EPA could elect to undertake two or more separate notice-and-comment rulemakings in order to answer the Petition, to revise its interpretations of the CAA in the SSM Policy and to evaluate existing provisions in state SIPs against the requirements of the CAA, there is no requirement for the Agency to do so. To the contrary, the EPA believes that it is preferable to take these interrelated actions in a combined rulemaking process. This combined approach allows the EPA to explain its actions comprehensively and in their larger context. The combined approach allows commenters to participate more meaningfully by considering together the proposed action on the Petition, the proposed interpretations of the CAA in the SSM Policy and the proposed application of the EPA's interpretation to specific SIP provisions. By addressing the interrelated actions together and comprehensively, the EPA is striving to be efficient with the resources of both regulators and regulated parties. Most importantly, by combining these actions the EPA is being responsive to the need for prompt evaluation of the SIP provisions at issue and for correction of those found to be legally deficient in a timely fashion. Far from “prejudging” the issues, the EPA explicitly sought comment on all aspects of the February 2013 proposal and sought additional comment on issues related to affirmative defense provisions in the SNPR. Naturally, the EPA's proposal and supplemental proposal reflected its best judgments on the proper interpretations of the CAA and application of those interpretations to the issues raised by the Petition, as of the time of the February 2013 proposal and the SNPR.

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

A. What the Petitioner Requested

The Petitioner's third request was that when the EPA evaluates SIP revisions submitted by a state, the EPA should require “all terms, conditions, limitations and interpretations of the various SSM provisions to be reflected in the unambiguous language of the SIPs themselves.” [125] The Petitioner expressed concern that the EPA has previously approved SIP submissions with provisions that “by their plain terms” do not appear to comply with the EPA's interpretation of CAA requirements embodied in the SSM Policy and has approved those SIP submissions in reliance on separate “letters of interpretation” from the state that construe the provisions of the SIP submission itself to be consistent with the SSM Policy.[126] Because of this reliance on interpretive letters, the Petitioner argued that “such constructions are not necessarily apparent from the text of the provisions and their enforceability may be difficult and unnecessarily complex and Start Printed Page 33885inefficient.” [127] The Petitioner cited various past rulemaking actions to illustrate how EPA approval of ambiguous SIP provisions can inject unintended confusion for regulated entities, regulators, and the public in the future, especially in the context of future enforcement actions. Accordingly, the Petitioner requested that the EPA discontinue reliance upon interpretive letters when approving state SIP submissions, regardless of the circumstances. A more detailed explanation of the Petitioner's arguments appears in the 2013 February proposal.[128]

B. What the EPA Proposed

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

C. What is being finalized in this action?

The EPA is taking final action to deny the Petition on this request. The EPA believes that it has statutory authority to rely on interpretive letters to resolve ambiguity in a SIP submission under appropriate circumstances and so long as the state and the EPA follow an appropriate process to assure that the rulemaking record properly reflects this reliance. To avoid any misunderstanding about the reasons for this denial or any misunderstandings about the circumstances under which, or the proper process by which, the EPA intends to rely interpretive letters, the Agency is repeating its views in this final action in detail.

As stated in the February 2013 proposal, the EPA agrees with the core principle advocated by the Petitioner, i.e., that the language of regulations in SIPs that pertain to SSM events should be clear and unambiguous. This is necessary as a legal matter but also as a matter of fairness to all parties, including the regulated entities, the regulators, and the public. In some cases, the lack of clarity may be so significant that amending the state's regulation may be warranted to eliminate the potential for confusion or misunderstanding about applicable legal requirements that could interfere with compliance or enforcement. Indeed, as noted by the Petitioner, the EPA has requested that states clarify ambiguous SIP provisions when the EPA has subsequently determined that to be necessary.[129]

However, the EPA believes that the use of interpretive letters to clarify ambiguity or perceived ambiguity in the provisions in a SIP submission is a permissible, and sometimes necessary, approach under the CAA. Used correctly, and with adequate documentation in the Federal Register and the docket for the underlying rulemaking action, reliance on interpretive letters can serve a useful purpose and still meet the enforceability concerns of the Petitioner. So long as the interpretive letters and the EPA's reliance on them is properly explained and documented, regulated entities, regulators, and the public can readily ascertain the existence of interpretive letters relied upon in the EPA's approval that would be useful to resolve any perceived ambiguity. By virtue of being part of the stated basis for the EPA's approval of that provision in a SIP submission, the interpretive letters necessarily establish the correct interpretation of any arguably ambiguous SIP provision. In other words, the rulemaking record should reflect the shared state and EPA understanding of the meaning of a provision at issue at the time of the approval, which can then be referenced should any question about the provision arise in a future enforcement action.

In addition, reliance on interpretive letters to address concerns about perceived ambiguity can often be the most efficient and timely way to resolve concerns about the correct meaning of regulatory provisions. Both air agencies and the EPA are required to follow time- and resource-intensive administrative processes in order to develop and evaluate SIP submissions. It is reasonable for the EPA to exercise its discretion to use interpretive letters to clarify concerns about the meaning of regulatory provisions, rather than to require air agencies to reinitiate a complete administrative process merely to resolve perceived ambiguity in a provision in a SIP submission.[130] In particular, the EPA considers this an appropriate approach where reliance on such an interpretive letter allows the air agency and the EPA to put into place SIP provisions that are necessary to meet important CAA objectives and for which unnecessary delay would be counterproductive. For example, where an air agency is adopting emission limitations for purposes of attaining the NAAQS in an area, a timely letter from the air agency clarifying that an enforcement discretion provision is applicable only to air agency enforcement personnel and has no bearing on enforcement by the EPA or the public could help to assure that the provision is approved into the SIP promptly and thus allow the area to reach attainment more expeditiously than requiring the air agency to undertake a time-consuming administrative process to make a minor clarifying change in the regulatory text.

There are multiple reasons why the EPA does not agree with the Petitioner with respect to the alleged inadequacy of using interpretive letters to clarify specific ambiguities in a SIP submission and the SIP provisions that may ultimately result from approval of such a submission, provided this process is done correctly. First, under section 107(a), the CAA gives air agencies both the authority and the primary responsibility to develop SIPs that meet applicable statutory and regulatory requirements. However, the CAA generally does not specify exactly how air agencies are to meet the requirements substantively, nor does the CAA specify that air agencies must use specific regulatory terminology, phraseology, or format, in provisions submitted in a SIP submission. Air agencies each have their own requirements and practices with respect to rulemaking, making flexibility respecting terminology on the EPA's part appropriate, so long as CAA requirements are met.

As a prime example relevant to the SSM issue, CAA section 110(a)(2)(A) requires that a state's SIP shall include “enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights) as well as schedules and Start Printed Page 33886timetables for compliance as may be necessary or appropriate to meet the applicable requirements of” the CAA. Section 302(k) of the CAA further defines the term “emission limitation” in important respects but nevertheless leaves room for variations of approach, stating that it is “a requirement established by the State or Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under [the CAA].”

Even this most basic requirement of SIPs, the inclusion of enforceable “emission limitations,” allows air agencies discretion in how to structure or word the emission limitations, so long as the provisions meet fundamental legal requirements of the CAA.[131] Thus, by the explicit terms of the statute and by design, air agencies generally have considerable discretion in how they elect to structure or word their state regulations submitted to meet CAA requirements in a SIP.

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

Third, careful review of regulatory provisions in a SIP submission can reveal areas of potential ambiguity. It is essential, however, that regulations are sufficiently clear that regulated entities, regulators and the public can all understand the SIP requirements. Where the EPA perceives ambiguity in draft SIP submissions, it endeavors to resolve those ambiguities through interactions with the relevant air agency even in advance of the SIP submission. On occasion, however, there may still remain areas of regulatory ambiguity in a SIP submission's provisions that the EPA identifies, either independently or as a result of public comments on a proposed action, for which resolution is both appropriate and necessary as part of the rulemaking action.

In such circumstances, the ambiguity may be so significant as to require the air agency to revise the regulatory text in its SIP submission in order to resolve the concern. At other times, however, the EPA may determine that with adequate explanation from the state, the provision is sufficiently clear and complies with applicable CAA and associated regulatory requirements. In some instances, the air agency may supply the explanation necessary to resolve any potential ambiguity in a SIP submission by sending an official letter from the appropriate authority. When the EPA bases its approval of a SIP submission in reliance on the air agency's official interpretation of the provision, that reading is explicitly incorporated into the EPA's action and is memorialized as the proper intended reading of the provision. In other words, the state and the EPA will have a shared understanding of the proper interpretation of the provision, and that interpretation will provide the basis for the approval of that provision into the SIP. The interpretation will also be clearly identified and presented for the public and regulated entities in the Federal Register document approving the SIP submission.

For example, in the Knoxville redesignation action that the Petitioner noted in the Petition, the EPA took careful steps to ensure that the perceived ambiguity raised by commenters was substantively resolved and fully reflected in the rulemaking record, i.e., through inclusion of the interpretive letters in the rulemaking docket, quoting relevant passages from the letters in the Federal Register, and carefully evaluating the areas of potential ambiguity in response to public comments on a provision-by-provision basis. By discussing the resolution of the perceived ambiguity explicitly in the rulemaking record, the EPA assured that the correct meaning of that provision should be evident from the record, should any question concerning its meaning arise in a future dispute.

Finally, the EPA notes that while it is possible to reflect interpretive letters in the Code of Federal Regulations (CFR) or incorporate them into the regulatory text of the CFR in appropriate circumstances, there is no requirement to do so in all actions, and there are other ways for the public to have a clear understanding of the content of the SIP. First, for each SIP, the CFR contains a list or table of actions that reflects the various components of the approved SIP, including information concerning the submission of, and the EPA's action approving, each component. With this information, interested parties can readily locate the actual Federal Register document in which the EPA will have explained the basis for its approval in detail, including any interpretive letters that may have been relied upon to resolve any potential ambiguity in the SIP provisions. With this information, the interested party can also locate the docket for the underlying rulemaking and obtain a copy of the interpretive letter itself. Thus, if there is any debate about the correct reading of the SIP provision, either at the time of the EPA's approval or in the future, it will be possible to ascertain the mutual understanding of the air agency and the EPA of the correct reading of the provision in question at the time the EPA approved it into the SIP. Most importantly, regardless of whether the content of the interpretive letter is reflected in the CFR or simply described in the Federal Register preamble accompanying the EPA's approval of the SIP submission, this mutual understanding of the correct reading of that provision upon which the EPA relied will be the reading that governs, should that later become an issue.

The EPA notes that the existence of, or content of, an interpretive letter that is part of the basis for the EPA's approval of a SIP submission is in reality analogous to many other things related to that approval. Not everything that may be part of the basis for the SIP approval in the docket—including the proposal or final preambles, the technical support documents, responses to comments, technical analyses, modeling results, or docket memoranda—will be restated verbatim, incorporated into, or referenced in the CFR. These background materials remain part of the basis for the SIP Start Printed Page 33887approval and remain available should they be needed in the future for any purpose. To the extent that there is any question about the correct interpretation of an ambiguous provision in the future, an interested party will be able to access the docket to verify the correct meaning of SIP provisions.

With regard to the Petitioner's concern that either actual or alleged ambiguity in a SIP provision could impede an effective enforcement action, the EPA believes that its current process for evaluating SIP submissions and resolving potential ambiguities, including the reliance on interpretive letters in appropriate circumstances with correct documentation in the rulemaking action, minimizes the possibility for any such ambiguity in the first instance. To the extent that there remains any perceived ambiguity, the EPA concludes that regulated entities, regulators, the public, and ultimately the courts, have recourse to use the administrative record to shed light on and resolve any such ambiguity as explained earlier in this document.

The EPA emphasizes that it is already the Agency's practice to assure that any interpretive letters are correctly and adequately reflected in the Federal Register and are included in the rulemaking docket for a SIP approval. Should the Petitioner or any other party have concerns about any ambiguity in a provision in a SIP submission, the EPA strongly encourages that they bring this ambiguity to the Agency's attention during the rulemaking action on the SIP submission so that it can be addressed in the rulemaking process and properly reflected in the administrative record. Should an ambiguity come to light later, the EPA encourages the Petitioner or any other party to bring that ambiguity to the attention of the relevant EPA Regional Office. If the Agency agrees that there is ambiguity in a SIP provision that requires clarification subsequent to final action on the SIP submission, then the EPA can work with the relevant air agency to resolve that ambiguity by various means.

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

The EPA received relatively few comments, both supportive and adverse, concerning the Agency's overarching decision to deny the Petition with respect to this issue. For clarity and ease of discussion, the EPA is responding to these comments, grouped by whether they were supportive or adverse, in this section of this document.

1. Comments that supported the EPA's interpretation of the CAA to allow reliance on interpretive letters to clarify ambiguities in state SIP submissions.

Comment: A number of state and industry commenters agreed with the EPA that the use of interpretive letters to clarify perceived ambiguity in the provisions in a SIP is a permissible, and sometimes necessary, approach to approving SIP submissions under the CAA when done correctly. Those commenters who supported the EPA's proposed action on the Petition did not elaborate upon their reasoning, but generally supported it as an efficient and reasonable approach to resolve ambiguities.

Response: The EPA agrees with the commenters who expressed support of the proposal based on practical considerations such as efficiency. These commenters did not, however, base their support for the proposed action on the EPA's interpretation of the CAA in the February 2013 proposal, nor did they acknowledge the parameters that the EPA itself articulated concerning the appropriate situations for such reliance and the process by which such reliance is appropriate. Thus, the EPA reiterates that reliance on interpretive letters to resolve ambiguities or perceived ambiguities in SIP submissions must be weighed by the Agency on a case-by-case basis, and such evaluation is dependent upon the specific facts and circumstances present in a specific SIP action and would follow the process described in the proposal.

2. Comments that opposed the EPA's interpretation of the CAA to allow reliance on interpretive letters to clarify ambiguities in state SIP submissions.

Comment: Other commenters disagreed with the EPA's proposed response to the Petition on this issue. One commenter opposed the Agency's reliance on interpretive letters under any circumstances and did not draw any factual or procedural distinctions between situations in which this approach might or might not be appropriate or correctly processed. This commenter argued that citizens should not be required “to sift through a large and complex rulemaking docket in order to figure out the meaning and operation of state regulations.” The commenter asserted that simply as a matter of “good government,” all state regulations approved as SIP provisions should be clear and unambiguous on their face. This commenter also expressed concern that courts could not or would not accord legal weight to interpretive letters created after state regulations were adopted and submitted to the EPA, or after the EPA's approval of the SIP submission occurred, and would view such letters as post hoc interpretations of no probative value. Another commenter added its view that reliance on interpretive letters is appropriate only when affected parties have the right to comment on the interpretive letters and the EPA's proposed use of them during the rulemaking in which the EPA relies on such letters to resolve ambiguities and before the Agency finally approves the SIP revision.

Response: As a general matter, the commenter opposing the EPA's reliance on interpretive letters in any circumstances because citizens would be required “to sift through” the docket did not provide specific arguments regarding the EPA's interpretation of the statute as stated in the February 2013 proposal. Consistent with the EPA's interpretation of the CAA, and as explained earlier in this document, the EPA agrees with the core principle that the language of regulations in SIPs that pertain to SSM events should be clear and unambiguous. A commenter argued that “a fundamental principle of good government is making sure that all people know what the applicable law is. Having the applicable law manifest in a letter sitting in a filing cabinet in one office clearly does not qualify as good government.” The EPA generally agrees on this point as well. As explained earlier in this document, the EPA allows the use of interpretive letters to clarify perceived ambiguity in the provisions of a SIP submission only when used correctly, with adequate documentation in both the Federal Register and the docket for the underlying rulemaking action. Section VI.B of this document explains how interested parties can use the list or table of actions that appears in the CFR and that reflects the various components of the approved SIP, to identify the Federal Register document wherein the EPA has explained the basis for its decision on any individual SIP provision. As such, the EPA does not envision a scenario whereby a citizen or a court would be unable to determine how the air agency and the EPA interpreted a specific SIP provision at the time of its approval into the SIP. Assuming there is any ambiguity in the provision, the mutual understanding of the state and the EPA as to the proper interpretation of that provision would be clear at the time of the approval of the SIP revision, as reflected in the Federal Register document for the final rule and the docket supporting that rule, which should answer any question about the correct interpretation of the term.

The same commenter also questioned whether “courts can or will give any Start Printed Page 33888legal weight to interpretative letters created after state regulations are adopted or SIP approvals occurred, in the face of industry defendant arguments that the SIP provisions do not accord with those post hoc interpretive letters.” This commenter asserted that by not requiring all interpretations of the SSM provisions in the “unambiguous language of the SIPs,” the EPA is accepting “great legal uncertainty” as to whether judges will consider interpretive letters in enforcement actions. As a preliminary matter, as explained earlier in this document, this action does not apply to “post hoc” interpretive letters, i.e., to situations where a state would submit an interpretive letter after the EPA's approval of the SIP. Through this action the EPA is confirming its view that it may use interpretive letters to clarify ambiguous SIP provisions only when those letters were submitted to the EPA during the evaluation of the SIP submission and before final approval of the SIP revision and were included in the final rulemaking docket and explicitly discussed in the Federal Register document announcing such final action.

In addition, as explained earlier in this document, once the EPA approves a SIP revision, it becomes part of the state's SIP identified in the CFR and thus becomes a federally enforceable regulation. In cases where the substance of the interpretive letter is provided in the CFR itself, either by copying the interpretation verbatim into the regulatory text or by incorporating the letter by reference, courts need not look further for the state and the Agency's agreed upon interpretation. The EPA's interpretation will be clearly reflected in the CFR. The EPA recognizes that actual or perceived regulatory ambiguity may become an issue in instances where the interpretive letter is reflected in the preamble to the final rulemaking but is not copied or incorporated by reference in the CFR text itself. It is important to note, however, that once included in the preamble to the final rule, the air agency's interpretation of the SIP provision, as reflected in the interpretive letter, becomes the EPA's promulgated interpretation as well. While the EPA recognizes that an agency's preamble guidance generally does not have the binding force of an agency's regulations, courts do view it as informative in understanding an agency's interpretation of its own regulation,[133] and courts accord an agency's interpretation of its own regulations a “ `high level of deference,' accepting it `unless it is plainly wrong.' ” [134] When reviewing a purportedly ambiguous agency regulation, courts have found that the agency's interpretation of its own regulation is “controlling unless `plainly erroneous or inconsistent with the regulation.' ” [135] Based on these settled legal principles, the EPA would expect a court in an enforcement action to look not only to the text of the regulation at issue but also to the preamble to the final rule. The preamble would contain an explanation of any interpretive letter from the state upon which the EPA relied in order to interpret any ambiguous SIP provisions.[136] As such, the EPA disagrees that it is “accepting an unreasonable amount of legal uncertainty” in future enforcement actions by allowing the use of interpretive letters to clarify SIP provisions where such letters are specifically discussed in the final rulemaking. The EPA reiterates that reliance on such interpretive letters is not appropriate in all circumstances, such as instances in which the state's SIP submission is so significantly ambiguous that it is necessary to request that the state revise the regulatory text before the EPA can approve it into the SIP.

Finally, a commenter stated its view that reliance on interpretive letters may be appropriate, but only when affected parties have the right to comment on the letter and the EPA's reliance on it during the rulemaking in which the letter is relied upon. The EPA has explained earlier in this document the proper circumstances under which such reliance may be appropriate and the proper process to be followed when reliance upon such letters is appropriate, but the EPA also notes that the process does not require that the letters always be made available for public comment. As explained earlier in this document, the EPA makes every attempt to identify ambiguities in state-submitted SIPs and requests states to submit interpretive letters to explain any ambiguities, before putting the proposed action on the SIP submission out for public notice and comment. On occasion, however, ambiguous provisions may inadvertently remain and are not identified until the notice-and-comment period has begun. As explained earlier in this document, sometimes these ambiguities are so significant that the EPA requires the state to resubmit its SIP submission altogether, which would entail another notice-and-comment period. When the EPA does not deem the ambiguity to be so significant as to warrant a revision to the state's regulatory text in the SIP submission, the Agency believes that resolution of the ambiguity through the submission of an interpretive letter, which then is incorporated into the EPA's action, reflected in the administrative record and memorialized as the proper intended reading of the provision, is appropriate.

This approach comports with well-established principles applicable to notice-and-comment rulemaking generally. One purpose of giving interested parties the opportunity to comment is to provide these parties the opportunity to bring areas of potential ambiguity in the proposal to an agency's attention so that the concerns may be addressed before the agency takes final action. If the APA did not allow the agency to consider comments and provide clarification when issuing its final action as necessary, this purpose would be defeated. Courts have held that so long as a final rule is a “logical outgrowth” of the proposed rule, adequate notice has been provided.[137] It is the EPA's practice to neither require a state to resubmit a SIP submission nor repropose action on the submission, so long as the clarification provided in the interpretive letter is a logical outgrowth of the proposed SIP provision. If an interested party believes that the EPA is incorrect in not requiring the state to revise its SIP submission or that the EPA should repropose action on a submission, including the clarification provided by the interpretive letter in the plain language of the SIP submission itself, that party does have recourse. The APA gives that party the opportunity to petition the EPA for rulemaking to reconsider the decision under 5 U.S.C. 553(e). For these reasons, the EPA believes that its process for using interpretive letters to clarify SIP Start Printed Page 33889provisions, as articulated in this rulemaking, is appropriate.

VII. Clarifications, Reiterations and Revisions to the EPA's SSM Policy

A. Applicability of Emission Limitations During Periods of SSM

1. What the EPA Proposed

In the February 2013 proposal, the EPA reiterated its longstanding interpretation of the CAA that SIP provisions cannot include exemptions from emission limitations for excess emissions during SSM events. This has been the EPA's explicitly stated interpretation of the CAA with respect to SIP provisions since the 1982 SSM Guidance, and the Agency has reiterated this important point in the 1983 SSM Guidance, the 1999 SSM Guidance and the 2001 SSM Guidance. In accordance with CAA section 302(k), SIPs must contain emission limitations that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” Court decisions confirm that this requirement for continuous compliance prohibits exemptions for excess emissions during SSM events.[138]

2. What Is Being Finalized in This Action

For the reasons explained in the February 2013 proposal, in the background memorandum supporting that proposal and in the EPA's responses to comments in this document, the EPA interprets the CAA to prohibit exemptions for excess emissions during SSM events in SIP provisions. This interpretation has long been reflected in the SSM Policy. The EPA acknowledges, however, that both states and the Agency have failed to adhere to the CAA consistently with respect to this issue in some instances in the past, and thus the need for this SIP call action to correct the existing deficiencies in SIPs. In order to be clear about this important point on a going-forward basis, the EPA is reiterating that emission limitations in SIP provisions cannot contain exemptions for emissions during SSM events.

Many commenters wrongly asserted that the EPA declared in the February 2013 proposal that all emission limitations in SIPs must be established as numerical limitations, or must be set at the same numerical level at all times. The EPA did not take this position. In the case of section 110(a)(2)(A), the statute does not include an explicit requirement that all SIP emission limitations must be expressed numerically. In practice, it may be that numerical emission limitations are the most appropriate from a regulatory perspective (e.g., to be legally and practically enforceable) and thus the limitation would need to be established in this form to meet CAA requirements. The EPA did not, however, adopt the position ascribed to it by commenters, i.e., that SIP emission limitations must always be expressed only numerically and must always be set at the same numerical level during all modes of source operation.

The EPA notes that some provisions of the CAA that govern standard-setting limit the EPA's own ability to set non-numerical standards.[139] Section 110(a)(2)(A) does not contain comparable explicit limits on non-numerical forms of emission limitation. Presumably, however, some commenters misunderstood the explicit statutory requirement for emission limitations to be “continuous” as a requirement that states must literally establish SIP emission limitations that would apply the same precise numerical level at all times. Evidently these commenters did not consider the explicit recommendations that the EPA made in the February 2013 proposal concerning creation of alternative emission limitations in SIP provisions that states may elect to apply to sources during startup, shutdown or other specifically defined modes of source operation.[140] As many of the commenters acknowledged, the EPA itself has recently promulgated emission limitations in NSPS and NESHAP regulations that impose different numerical levels during different modes of source operation or impose emission limitations that are composed of a combination of a numerical limitation during some modes of operation and a specific technological control requirement or work practice requirement during other modes of operation. In light of the court's decision in Sierra Club v. Johnson, the EPA has been taking steps to assure that its own regulations impose emission limitations that apply continuously, including during startup and shutdown, as required.[141]

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

Another apparent common misconception of commenters was that SIP provisions may contain exemptions for emissions during SSM events, so long as there is some other generic regulatory requirement of some kind somewhere else in the SIP that coincidentally applies during those exempt periods. The other generic regulatory requirements most frequently referred to by commenters are “general duty” type requirements, such as a general duty to minimize emissions at all times, a general duty to use good engineering judgment at all times, or a Start Printed Page 33890general duty not to cause a violation of the NAAQS at any time. To the extent that such other general-duty requirement is properly established and legally and practically enforceable, the EPA would agree that it may be an appropriate separate requirement to impose upon sources in addition to the (continuous) emission limitation. The EPA itself imposes separate general duties of this type in appropriate circumstances.[143] The existence of these generic provisions does not, however, legitimize exemptions for emissions during SSM events in a SIP provision that imposes an emission limitation.

In accordance with the definition of section 302(k), SIP emission limitations must be continuous and apply at all times. SIP provisions may be composed of a combination of numerical limitations, specific technological control requirements and/or work practice requirements, but those must be components of a continuously applicable SIP emission limitation. In addition, the SIP emission limitation must meet applicable stringency requirements during all modes of source operation (e.g., be RACT for stationary sources located in a nonattainment area) and be legally and practically enforceable. General-duty requirements that are not clearly part of or explicitly cross-referenced in a SIP emission limitation cannot be viewed as a component of a continuous emission limitation. Even if clearly part of or explicitly cross-referenced in the SIP emission limitation, however, a given general-duty requirement may not be consistent with the applicable stringency requirements for that type of SIP provision during startup and shutdown. The EPA's recommendations for developing appropriate alternative emission limitations applicable during certain modes of source operation are discussed in section VII.B.2 of this document. In general, the EPA believes that a legally and practically enforceable alternative emission limitation applicable during startup and shutdown should be expressed as a numerical limitation, a specific technological control requirement or a specific work practice requirement applicable to affected sources during specifically defined periods or modes of operation.

3. Response to Comments

The EPA received a substantial number of comments, both supportive and adverse, concerning the issue of exemptions in SIP provisions for excess emissions during SSM events. Many of these comments raised the same core issues, albeit using slight variations on the arguments or variations on the combination and sequence of arguments. For clarity and ease of discussion, the EPA is responding to these comments, grouped by issue, in this section of this document.

a. Comments that the EPA's proposed action on the Petition is incorrect because some of the Agency's own regulations contain exemptions for emissions during SSM events.

Comment: Many commenters argued that the EPA is misinterpreting the CAA to preclude SIP provisions with exemptions for emissions during SSM events because some of the Agency's own existing NSPS and NESHAP rules contain such exemptions. Some commenters provided a list of existing NSPS or NESHAP standards that they claimed currently contain exemptions for emissions during SSM events. Commenters also noted that the NSPS general provisions at 40 CFR 60.11(d) excuse noncompliance with many NSPS during periods of startup and shutdown. Other commenters asserted that the EPA's interpretations in the February 2013 proposal are inconsistent with its longstanding interpretation of the Act because the EPA itself has a long history of adopting exceptions to numerical emission limitations for emissions during SSM events, citing to the NSPS general provisions at 40 CFR 60.8, the NSPS for Fossil-Fuel-Fired Steam Generators and for Electric Utility Steam Generating Units (40 CFR part 60, respectively subparts D and Da) and the NSPS for Industrial-Commercial-Institutional Steam Generating Units and for Small Industrial-Commercial-Institutional Steam Generating Units (40 CFR part 60, respectively subparts Db and Dc). Commenters claimed that recent revisions to 40 CFR part 60, subpart Da excluded periods of startup and shutdown from new PM standards. The commenters pointed to these facts or alleged facts as evidence that the EPA is interpreting the term “emission limitation” or other provisions of the statute inconsistently to preclude SSM exemptions in SIP provisions.

Response: Commenters are correct that many of the EPA's existing NSPS and NESHAP standards still contain exemptions from emission limitations during periods of SSM. The exemptions in these EPA regulations, however, predated the 2008 issuance of the D.C. Circuit decision in Sierra Club v. Johnson, in which the court held that emission limitations must be continuous and thus cannot contain exemptions for emissions during SSM events. Likewise, the NSPS general provisions in 40 CFR 60.8 that commenters identified as inconsistent also predate that 2008 court decision. Although these other EPA regulations that include exemptions for emissions during SSM events were not before the court in the Sierra Club case, the EPA's view is that the legal reasoning of the Sierra Club decision applies equally to these exemptions and that the exemptions are thus inconsistent with the CAA.

Consequently, since the Sierra Club decision, the EPA has eliminated exemptions in many existing federal emission limitations as these standards are revised or reviewed pursuant to CAA requirements, such as CAA sections 111(b)(1)(B), 112(d)(6) and 112(f)(2).[144] Similarly, the EPA has established emission standards that apply at all times, including during SSM events, when promulgating new NSPS and NESHAP standards to be consistent with the Sierra Club decision.[145] The EPA recognizes that the NSPS general provisions regulations also include exemptions for emissions during SSM events, but in promulgating new NSPS since the Sierra Club decision, the EPA has established emission limitations in the new NSPS that apply at all times thereby superseding those general provisions. Therefore, the EPA's action in this rulemaking is consistent with other actions that the EPA has taken since the Sierra Club decision concerning the issue of SSM exemptions.

The fact that the EPA has not completed the process of updating its own regulations to bring them into compliance with respect to CAA requirements concerning proper treatment of emissions during SSM events does not render this SIP call action arbitrary or capricious. The existence of a deficiency in an existing EPA regulation that has not yet been corrected does not alter the legal requirements imposed by the CAA upon states with respect to SIP provisions. Thus, for example, the EPA does not agree with commenters that the continued existence of SSM exemptions Start Printed Page 33891in the general provisions applicable to the emission limitations in the Agency's own NSPS for Fossil-Fuel-Fired Steam Generators in 40 CFR part 60, subpart D, is evidence that exemptions for emissions during SSM events are permitted by the CAA.

The EPA acknowledges that correction of longstanding regulatory deficiencies by proper rulemaking procedures requires time and resources, not only for the EPA but also for states and affected sources. Hence, the EPA has elected to proceed via its authority under section 110(k)(5) and to provide states with the full 18 months allowed by statute for compliance with this action. This SIP call is intended to help assure that state SIP provisions are brought into line with CAA requirements for emission limitations, just as the EPA is undertaking a process to update its own regulations.

The EPA also specifically disagrees with the commenters' implication that 40 CFR 60.11(d) completely excuses noncompliance during periods of startup and shutdown. Rather, that provision imposes a separate affirmative obligation to maintain and operate the affected facility, including associated air pollution control equipment, in a manner consistent with good air pollution control practices at all times. The existence of this separate duty to minimize emissions, however, does not justify or excuse the existence of an exemption for emissions during SSM events from the emission limitations of an EPA NSPS. It is a separate obligation that sources must also meet at all times.

The EPA also disagrees with the commenters who argued that the Agency has recently created new exemptions for PM emissions during startup and shutdown events in the NSPS for Electric Utility Steam Generating Units in 40 CFR part 60, subpart Da. The EPA has not created new exemptions for emissions during startup and shutdown. To the contrary, the EPA has taken steps to assure that these regulations are consistent with the statutory definition of emission limitation and with the logic of the Sierra Club decision on a going-forward basis. In accordance with that decision, the revised emission limitations in subpart Da NSPS apply continuously. In revising subpart Da to establish requirements for sources on which construction, modification or reconstruction commenced after May 3, 2011, the EPA determined that it was appropriate to provide that the exemptions for emissions during SSM events in the General Provisions do not apply.[146] Although the Sierra Club v. Johnson decision specifically addressed the validity of SSM exemptions in NESHAP regulations, the EPA concluded that the court's focus on the definition of “emission limitation” in section 302(k) applied equally to any such SSM exemptions in NSPS regulations. Thus, for affected sources on which construction, modification or reconstruction starts after May 3, 2011, the General Provisions do not provide an exemption to compliance with the applicable emission limitations during SSM events.

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

The EPA also notes that the provisions of 40 CFR 60.42Da(b)(1) do not provide an “exemption” from the opacity standard. That section merely provides that the affected sources do not need to meet the opacity standard of the NSPS (at any time), if they have installed a PM continuous emission monitoring system (PM CEMS) to measure PM emissions continuously instead of relying on periodic stack tests to assure compliance with the PM emission limitation. One reason for the imposition of opacity standards on sources is to provide an effective means of monitoring for purposes of assuring source compliance with PM emission limitations and proper operation of PM emission controls on a continuous basis. If a source is subject to a sufficiently stringent PM limitation and has opted to install, calibrate, maintain and operate a PM CEMS to measure PM emissions, then it is reasonable for the EPA to conclude that an opacity emission limitation is not needed for that particular source for those purposes.[148] The direct measurement of PM, in conjunction with an appropriately stringent PM emission limitation that Start Printed Page 33892applies continuously, is an appropriate means to assure adequate control of PM emissions on a continuous basis. States evaluating how best to replace impermissible SSM exemptions from opacity standards may wish to consider a similar approach, conditioned upon the use of PM CEMS and a sufficiently stringent PM emission limitation.

Finally, the EPA emphasizes that what is at issue in this action is the question of whether emission limitations in SIP provisions can include exemptions for emissions during SSM events. The EPA is reiterating its longstanding interpretation of the CAA with respect to this question, in the process of responding to the Petition, updating its SSM Policy and applying its current interpretations of the CAA to the specific SIP provisions at issue in this SIP call action. To the extent that commenters intend to point out that the EPA needs to address exemptions for emissions during SSM events in its own existing regulations, the Agency is already aware of that need due to recent judicial decisions and is proceeding to correct those regulations in due course.

b. Comments that the EPA's proposed action on the Petition is incorrect because the Agency has previously allowed the inclusion of exemptions for emissions during SSM events through approval of NSPS or NESHAP requirements into SIPs.

Comment: Commenters asserted that the EPA is being inconsistent because it has previously approved SIP submissions that rely on NSPS rules, including the SSM exemptions in those existing rules. The commenters argued that the EPA's current interpretation of the CAA to preclude SSM exemptions in SIP provisions is thus at odds with past guidance and practice.

Response: The EPA disagrees with the argument that past approval of SIP submissions that relied upon an NSPS or NESHAP with an SSM exemption is evidence that such exemptions should be permissible in SIP provisions in the future. In the 1999 SSM Guidance, the EPA addressed the related issue of whether states could create affirmative defenses in SIP provisions that would alter or add to the requirements of an existing EPA NSPS or NESHAP.[149] At that time, the EPA clearly stated that it would be inappropriate for a state to seek to “deviate” from the specific requirements of an NSPS or NESHAP when adopting that standard as a SIP provision, stating that “[b]ecause EPA set these standards taking into account technological limitations, additional exemptions would be inappropriate.” Thus, so long as a state did not alter the requirements of the existing NSPS or NESHAP by including additional affirmative defenses or exemptions, the EPA indicated that it would approve a SIP submission that included an NSPS or NESHAP.

The commenters' argument has brought to the EPA's attention that past guidance on this issue is in fact inconsistent with more recent legal developments. At the time of the 1999 SSM Guidance, the EPA was still of the belief that its own NSPS and NESHAP regulations could legitimately include exemptions for emissions during SSM events. In that light, recommending to states that they could rely on an EPA NSPS or NESHAP as an emission limitation in a SIP provision so long as they did not alter the NSPS or NESHAP in any fashion was logical. At that time, the reasoning was that NSPS and NESHAP standards were technology-based standards that, although neither designed nor intended to meet the separate legal requirements for SIP provisions, could be used to provide emission reductions creditable in SIPs. Since the 2008 D.C. Circuit decision in Sierra Club v. Johnson, however, it has been clear that NSPS and NESHAP standards themselves cannot contain such exemptions. The reasoning of the court was that exemptions for SSM events are impermissible because they contradict the requirement that emission limitations be “continuous” in accordance with the definition of that term in section 302(k). Although the court evaluated this issue in the context of EPA regulations under section 112, the EPA believes that this same logic extends to SIP provisions under section 110, which similarly must contain emission limitations as defined in the CAA. Section 110(a)(2)(A) requires states to have emission limitations in their SIPs to meet other CAA requirements, and any such emission limitations would similarly be subject to the definition of that term in section 302(k).

Accordingly, the EPA concludes that, prospectively, a state should not submit an NSPS or NESHAP for inclusion into its SIP as an emission limitation (whether through incorporation by reference or otherwise), unless that NSPS or NESHAP does not include an exemption for SSM events or unless the state otherwise takes action to exclude the SSM exemption from the standard as part of the SIP submission. Because SIP provisions must apply continuously, including during SSM events, the EPA can no longer approve SIP submissions that include any emission limitations with such exemptions, even if those emission limitations are NSPS or NESHAP regulations that the EPA has not yet revised to make consistent with CAA requirements. Alternatively, states may elect to adopt an existing NSPS or NESHAP as a SIP provision, so long as the state provision excludes the SSM exemption.[150] States may also wish to replace the SSM exemption with appropriately developed alternative emission limitations that apply during startup and shutdown in lieu of the SSM exemption. Otherwise, the EPA's approval of the deficient SSM exemption provisions into the SIP would contravene CAA requirements for SIP provisions and would potentially result in misinterpretation or misapplication of the standards by regulators, regulated entities, courts and members of the public. The EPA emphasizes that the inclusion of an NSPS or NESHAP as an emission limitation in a state's SIP (which approach, as noted in section VII.B.3 of this document, would be at the state's option) is different and distinct from reliance on such standards indirectly, such as sources of emission reductions that may be taken into account for SIP planning purposes in emissions inventories or attainment demonstrations. For these uses (i.e., other than as direct emission limitations), states may continue to rely on EPA NSPS and NESHAP regulations, even those that have not yet been revised to remove inappropriate exemptions, in accordance with the requirements applicable to those SIP planning functions.

c. Comments that the EPA is misinterpreting the Sierra Club case because it applies only to MACT regulations and not to SIP provisions.

Comment: Many commenters claimed that the EPA incorrectly applies the holding in the Sierra Club decision to preclude exemptions for emissions during SSM events in SIP provisions and that the Sierra Club decision does not apply in this context. The commenters argued that the Sierra Club decision was directly dependent on the structure of CAA section 112 and cannot be extended to the different regulatory Start Printed Page 33893structure that governs SIPs under CAA section 110.

The commenters further contended that in the SIP context, the underlying air quality pollution control requirement for SIPs is to attain NAAQS and no specific level of stringency is required, unlike section 112, and Congress gave states broad discretion in the design of their SIPs. Commenters asserted that the Sierra Club decision held only that the general-duty requirement in the section 112 regulations did not meet the stringency requirements of CAA section 112 and that this holding does not apply in the SIP context because in the SIP context no specific level of stringency is required.

Commenters also asserted that a general-duty requirement is an appropriate alternative standard for SSM events in the SIP context because CAA sections 302(k) and 110(a)(2)(A) give states broad authority to develop the mix of controls necessary and appropriate to implement the NAAQS. Other commenters contended that the Sierra Club decision does not preclude states from constructing a compliance regime that uses multiple methods to limit emissions as long as the overall compliance regime to minimize emissions is enforceable.

Commenters also suggested that the decision in Kamp v. Hernandez relied upon in the Sierra Club case affirmed EPA's approval of a state emission limitation in a SIP that specifically allowed and even expected a certain number of annual exceedances of the emission limit.[151] Some commenters argued that the Sierra Club decision should not be read to impose a “continuous emissions limitation” requirement and that to the extent it does, it was incorrectly decided.

Response: The EPA disagrees that the court's decision in Sierra Club v. Johnson has no relevance to this action. Of course that decision specifically addressed the validity of exemptions for emissions during SSM events in the Agency's own regulations promulgated under section 112. Naturally, that decision turned, in part, on the specific provisions of section 112 and the specific arguments that each of the litigants raised in that case. However, the decision also turned in large part on the explicit statutory definition of the term “emission limitation” in section 302(k), which requires such limitations to be “continuous.”

In that litigation, the EPA itself had argued that the exemptions from the otherwise applicable MACT standards during SSM events were consistent with CAA requirements because the MACT standards and the separate “general duty” requirements “together form an uninterrupted, i.e., continuous” emission limitation, because either the numerical limitation or the general duty applied at all times.[152] The Sierra Club court rejected this argument, in part because the general duty that EPA required sources to meet during SSM events was not itself consistent with section 112(d) and the EPA did not purport to act under section 112(h). Thus, the EPA agrees that the court in Sierra Club explicitly found that the SSM exemption in EPA's NESHAP general provision rules violated the CAA because the general duty to minimize emissions was not a section 112(d)-compliant standard and had not been justified by the EPA as a 112(h)-compliant standard. The court reasoned that when sections 112 and 302(k) are read together, there must be a continuous section 112-compliant standard. It is important to note that if the otherwise applicable numerical MACT standards had themselves applied at all times consistent with section 302(k), then there would have been no question that they were in fact continuous.

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

The EPA also disagrees with the argument that the Sierra Club decision does not apply because section 110, unlike section 112, does not impose any specific level of “stringency” for SIP provisions. In accordance with section 110(a)(1), states are required to have SIPs that provide for attainment, maintenance and enforcement of the NAAQS in general. Pursuant to section 110(a)(2), states are required to have SIP provisions that meet many specific procedural and substantive requirements, including but not limited to, the explicit requirements of section 110(a)(2)(A) for emission limitations necessary to meet other substantive CAA requirements. In addition, however, states must have SIP provisions that collectively meet a host of other statutory requirements that also impose more specific stringency requirements. Merely by way of example, section 110(a)(2)(I) requires states with nonattainment areas to have SIP provisions that collectively meet part D requirements.[154] In turn, the different subparts of part D applicable to each NAAQS impose many requirements that require emission limitations in SIPs that meet various levels of stringency. Again, merely by way of example, states with nonattainment areas for PM under part D subpart 4 must have SIPs that include emission limitations that meet either the RACM and RACT level of stringency (if the nonattainment area is classified Moderate) or meet the BACM and BACT level of stringency (if the area is classified Serious).[155] There are similar requirements for states to impose emission limitations that must meet various levels of stringency for each of the NAAQS. Likewise, states must impose SIP emission limitations that meet BART and reasonable progress levels of stringency for regional haze program purposes [156] and must ensure that emission limitations meet BACT or LAER levels of stringency for PSD or nonattainment NSR permitting program Start Printed Page 33894purposes.[157] The EPA agrees that states have broad discretion in how to devise SIP provisions under section 110, but states nevertheless are required to devise SIP provisions that meet applicable statutory stringency requirements. In short, the argument that the Sierra Club decision is not germane because there are no comparable “stringency” requirements applicable to SIP provisions is simply in error. While it is true that SIP provisions do not need to meet section 112 levels of stringency, they must still be continuous under section 302(k) and meet applicable NAAQS, PSD and visibility requirements and stringency levels. In short, they cannot contain exemptions for emissions during SSM events.

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

d. Comments that the EPA's proposed action contradicts a 2009 guidance document concerning the effect of the Sierra Club decision on SSM exemptions in existing standards.

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

Response: The EPA disagrees with these comments for several reasons. First, the commenters misinterpret the Kushner letter. The purpose of the Kushner letter was to explain the direct and immediate impact of the Sierra Club decision, which vacated the SSM exemption in EPA's NESHAP general provisions regulations. The Kushner letter explained that the vacatur would “immediately and directly” affect only the subset of NESHAP source category standards that incorporated the general provisions' exemption by reference, and that contain no other regulatory text exempting or excusing, in any way, compliance during SSM events, because only the general provisions' exemption was challenged and before the court in the Sierra Club case. However, the Kushner letter clearly stated that the legality of all NESHAP SSM exemption provisions was in question and that EPA would examine such provisions in light of the court's decision. Therefore, the commenters' suggestion that the Kushner letter supports a limited reading of the legal reasoning of the Sierra Club case is incorrect.

Second, the Kushner letter did not explicitly or implicitly address the issue of whether the CAA allows exemptions for emissions during SSM events in SIP provisions. That fact is unsurprising, in that at the time of the Kushner letter the EPA already had guidance in the SSM Policy (issued and reiterated in 1982, 1983, 1999 and 2001) that clearly stated the Agency's view that such exemptions are not permissible in SIP provisions, consistent with CAA requirements. It would also have been unnecessary for the Kushner letter discussing the impact of the Sierra Club decision on NESHAP standards to have mentioned that the statutory definition of emission limitation also precludes exemptions for SSM provisions in SIPs. The EPA had already made this point explicitly in the 1999 SSM Guidance, when it explained the reasons why such provisions would be contrary to CAA requirements for SIPs.[162] Thus, the EPA's guidance for SIP provisions concerning emissions during SSM events had already explicitly articulated that provisions with exemptions for SSM events could not be approved pursuant to CAA section 110(l), because that would interfere with a fundamental requirement of the CAA, i.e., the definition of “emission limitation” in section 302(k).

Finally, the EPA disagrees that the Kushner letter could override the applicability of the logic of the Sierra Club decision to SIP provisions, even if the Agency had any such intentions. The D.C. Circuit's evaluation of the issue with respect to the EPA's own regulations was premised not solely upon the particular requirements of section 112 but also more broadly on the meaning and specific definition of the term “emission limitation” under the CAA. That definition applies to SIP provisions as well as to the EPA's own regulations. Because the SSM Policy in effect at the time of the Sierra Club decision and the time of the Kushner letter already stated that EPA interpreted the CAA to prohibit SIP provisions that exempt emissions during SSM events, there would have Start Printed Page 33895been no need for the Kushner letter to speak to this issue.[163]

e. Comments that the EPA's proposed action on the Petition is incorrect because the Agency's recent MATS rule and Area Source Boiler rule regulations contain exemptions for emissions during SSM events.

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

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

The EPA also disagrees with the assertion that it is holding state SIP provisions to a different standard than its own NSPS and NESHAP regulations. The EPA notes that SIP emission limitations and NSPS and NESHAP emission limitations are, of course, designed for different purposes (e.g., to meet the NAAQS versus to reduce emissions of HAPs) and have to meet some different statutory requirements (e.g., to be RACM versus be standards that are compliant with section 112). However, the EPA understands the commenters' claim to be more specifically that the Agency is applying a different interpretation of the term “emission limitation” and taking a different approach to the treatment of emissions during SSM events in its own regulations, even in recent regulations developed subsequent to the Sierra Club decision. The EPA believes that this argument reflects a misunderstanding of both the February 2013 proposal and what the Agency's own new regulations contain.

The MATS rule and the Area Source Boiler rule in fact illustrate how the EPA is creating emission limitations that apply continuously, with numerical limitations or combinations of numerical limitations and other specific technological control requirements or work practice requirements applicable during startup and shutdown, depending upon what is appropriate for the source category and the pollutants at issue. For example, in the MATS rule the EPA has promulgated regulations that impose emission limitations on various subcategories of sources to address HAP emissions. To do so, the EPA developed emission limitations to address the relevant pollutants using a combination of numerical emission limitations and work practices. The work practice requirements specifically apply to sources during startup and shutdown and are thus components of the continuously applicable emission limitations.[169]

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

f. Comments that section 110(a)(2)(A) authorizes states to have SIP provisions with exemptions for emissions during SSM events because they are not “emission limitations” and are not Start Printed Page 33896subject to the requirement to be “continuous.”

Comment: Section 110(a)(2)(A) requires states to have SIPs that include emission limitations for purposes of imposing restrictions on sources of emissions in order to attain and maintain the NAAQS and to meet other CAA requirements. Some commenters noted that, in addition to “emission limitations,” section 110(a)(2)(A) also explicitly refers to “other control measures, means, or techniques.” Unlike the term “emission limitation,” which is defined in section 302(k), commenters contended that these “other control[s]” need not be continuous. Accordingly, these commenters argued that emission controls in SIP provisions that either contain, or are subject to, SSM exemptions can be viewed merely as examples of these “other control measures, means, or techniques” that are validly included in SIPs and that do not have to limit emissions from sources on a continuous basis. Specifically, these commenters asserted that the plain text of section 110(a)(2)(A) does not require SIPs to include only emission limitations but rather requires that SIPs include “emission limitations,” “other control measures, means, or techniques,” or a mixture thereof. Furthermore, according to some of these commenters, an interpretation of section 110(a)(2)(A) that requires all SIP provisions to be “emission limitations,” and thus subject to the requirement that they be continuous, would render the “other control” language in the statute superfluous.

Response: The EPA agrees with the commenters that SIPs do not have to be composed solely of numerical emission limitations, that SIPs can contain other forms of controls in addition to emission limitations and that certain forms of controls other than emission limitations may not need to apply to sources continuously. However, the EPA disagrees with the commenters' conclusion that the mere act of labeling certain SIP provisions as “control measures, means, or techniques” rather than as “emission limitations” can be a means to circumvent the requirement that emission limitations must regulate sources continuously. To the extent that there is any ambiguity in the requirements of section 110(a)(2), it is not reasonable to interpret the statute to allow the explicit requirement that emission limitations must be continuous to be negated in this fashion.

As an initial matter, the SIP provisions that contain automatic or discretionary exemptions during SSM events at issue in this SIP call excuse compliance with requirements that presumably were submitted to the EPA as emission limitations, were intended to limit emissions on a continuous basis or were otherwise included to ensure that the SIP contained continuous emission limitations. All of the SIP provisions at issue in this action provide automatic or discretionary exemptions from emission limitations that are formulated as restrictions on the “quantity, rate, or concentration” of emissions from affected sources, just as section 302(k) describes the purpose of an emission limitation. Longstanding EPA regulations applicable to SIPs require that states have a control strategy to provide for attainment and maintenance of the NAAQS.[171] The required “control strategy” is defined to be the combination of measures including, but not limited to, “emission limitations,” “emission control measures applicable to in use motor vehicles” and “transportation control measures” listed in section 108(f).[172] The regulatory definition of “emission limitation” applicable to SIP provisions tracks the statutory definition of section 302(k) and notably also does not define the term to allow exemptions for emissions during SSM events.[173] To the EPA's knowledge, none of the specific SIP provisions that contain or that are subject to the automatic or discretionary exemptions at issue in this SIP call action were developed by the states with the intention or expectation that absent the exemption they would not apply at all times when the source is in operation; i.e., they impose restrictions on emissions that were intended to apply continuously when the source is emitting pollutants. Logically, the states intended the emission limitations to impose limits that apply continuously at all times when the affected sources are emitting pollutants or else there would have been no impetus to include any exemptions for emissions during SSM events.

However, even if the EPA were to accept the commenters' premise arguendo—that inclusion of an SSM exemption in a given SIP provision turns “emission limitations” into “other control measures, means, or techniques,” this would not be a reasonable reading of the requirements of section 110(a)(2)(A) and section 302(k) for several reasons. To the extent that either section 110(a)(2)(A) or section 302(k) is ambiguous with respect to this point, the EPA does not interpret the CAA to allow exemptions for emissions during SSM events in SIP provisions in the way advocated by the commenters.

First, section 110(a)(2)(A) explicitly requires that SIPs must contain emission limitations as necessary to meet various CAA requirements. Section 302(k) requires that such emission limitations must limit “the quantity, rate, or concentrations of emissions of air pollutants on a continuous basis.” Moreover, section 302(k) reiterates that the term “continuous emission limitation” also specifically includes “any requirement relating to the operation or maintenance of a source to assure continuous emission reduction.” Lest there be doubt, section 302(m) provides a definition for the related term “means of emission limitation” as “a system of continuous emissions reduction (including the use of specific technology or fuels with specified pollution characteristics).” In the Sierra Club v. Johnson decision, the D.C. Circuit concluded that the statutory definition of “emission limitation” in section 302(k) precludes exemptions for emissions during SSM events because such exemptions are inconsistent with the requirement for continuous controls.[174] Given the emphasis that the statute places on the requirement that sources be subject to continuous emission controls, and given the emphasis that courts have placed on the requirement that sources be subject to continuous controls on their emissions, the EPA believes that it is illogical that the statutory requirement for continuous controls on sources could be subverted merely by the act of labeling a given SIP provision a “control measure” rather than an “emission limitation.” The commenters' argument that if a given SIP provision contains an SSM exemption, it is merely a “control measure[ ], mean[ ], or technique[ ]” reduces the explicit requirement for continuous controls on emissions to a semantic exercise.

Second, the EPA believes that the commenters' reading of the statute to permit SIP provisions to contain an SSM exemption by virtue of what it is labeled is incorrect if taken to its logical extreme. The commenters' interpretation of section 110(a)(2)(A) would theoretically allow a SIP to contain no emission limitations whatsoever, merely a collection of requirements labeled “control measures” so that sources can be excused from having to limit emissions on a continuous basis. This result is contrary to judicially approved EPA Start Printed Page 33897interpretations of prior versions of the CAA as requiring all SIPs to include continuously applicable emission limitations and only requiring “other” additional controls “as may be necessary” to satisfy the NAAQS.[175] Additionally, this result is contrary to legislative history of the 1990 Clean Air Act Amendments, which indicates that in slightly revising this portion of section 110(a)(2)(A), Congress intended to merely “combine and streamline” previously existing SIP requirements into a single provision, not to vitiate statutory requirements concerning emission limitations.[176]

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

Section 110(a)(2) requires SIPs to include enforceable emission limitations and other controls “as necessary or appropriate to meet the applicable requirements” of the CAA. Regardless of whether commenters' semantic labeling arguments are valid in the abstract, they are not correct with respect to the fundamental CAA requirements for SIPs relating to continuous emission limitations. The automatic or discretionary exemptions for emissions during SSM events in the SIP provisions at issue in this SIP call authorize exemptions from statutorily required emission limitations. To the extent that such a SIP provision would functionally or legally exempt sources from regulation during SSM events, the SIP provision fails to be a continuously applicable enforceable emission limitation as required by the CAA. The fact that a SIP may also contain “other control[s]” as advocated by the commenters does not negate the statutory requirement that emission limitations must apply continuously.

g. Comments that the definition of “emission limitation” in section 302(k) does not require that all forms of emission limitations must apply continuously.

Comment: Section 110(a)(2)(A) requires that SIPs must contain emission limitations, and section 302(k) defines the term “emission limitation” to mean a limit on emissions from a source that applies continuously. A number of commenters disagreed that section 302(k) requires that all “emission limitations” have to be “continuous.” The commenters argued that section 302(k) establishes two distinct categories of emission limitations: (1) Requirements that “limit[ ] the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction,” and (2) requirements constituting a “design, equipment, work practice or operational standard promulgated under this chapter.” These commenters claimed that only the first purported category is emission limitations that must be continuous and that the second purported category is emission limitations that do not need to apply continuously. Accordingly, these commenters asserted that SIP provisions that are rendered noncontinuous by inclusion of exemptions for emissions during SSM events are still legally valid “emission limitations” because they fall within the second category. Other commenters separately contended that under section 302(k), SIP provisions imposing requirements “relating to the operation or maintenance of sources” do not need to be continuous, unlike those imposing requirements that limit “the quantity, rate, or concentration of emissions or air pollutants.”

Response: The EPA disagrees with the commenters' view that section 302(k) establishes two discrete categories of emission limitations, only one of which must reduce continuous emissions on a continuous basis. The EPA acknowledges that the text of section 302(k) is ambiguous with respect to this point, but the Agency does not agree with the commenters' interpretation of the statute. The statutory text of section 302(k) begins with a catch-all definition of the term “emission limitation” as “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis . . . .” [179] The EPA believes that the rest of the first sentence in section 302(k), beginning with the word “including,” is best read as a list of examples of types of measures that satisfy this general definition. In other words, the remainder of the sentence provide examples of types of SIP provisions that could be used to limit emissions on a continuous basis, including any design standard, equipment standard, work practice standard or operational standard promulgated under the CAA, as well as “any requirement relating to the operation or maintenance of a source to assure continuous emission reduction.” However, each of these forms of emission limitation would be required to apply at all times, or be required to apply in combination at all times, in order to meet the fundamental requirement that the emission limitation serves to limit emissions from the affected sources continuously. Thus, the EPA interprets the term “emission limitation” to permit emission limitations that are composed of a combination of numerical limitations, technological control requirements and/or work practice requirements, so long as they are components of an emission limitation that applies continuously. This interpretation accords with Start Printed Page 33898statutory context,[180] the legislative history regarding the definition of “emission limitation,” [181] judicial interpretations of section 302(k) [182] and the EPA's definition of “emission limitation” in its SIP regulations.[183] Accordingly, the EPA's interpretation of section 302(k) is reasonable.

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

h. Comments that exemptions or affirmative defenses are not only not prohibited, but are actually required by the CAA because they are necessary to make an emission limitation “reasonable” or “achievable” for sources that cannot comply during SSM events.

Comment: Commenters argued that some emission limitations currently in SIPs are only “reasonable” or technologically “achievable” because they include exemptions or affirmative defenses applicable to emissions during SSM events. According to these commenters, without exemptions or affirmative defenses to excuse sources from compliance with the limits during SSM events, these emission limitations would not be reasonable or achievable as required by law. To support these contentions, commenters cited case law from the early 1970s to argue that the CAA requires emission limitations in SIP provisions to include exemptions or affirmative defenses for SSM events.

Response: The EPA agrees that SIP provisions should impose emission limitations that are reasonable and achievable by sources, so long as they are also consistent with the applicable legal requirements for that type of provision. The EPA acknowledges that in some cases, emission limitations may need to include alternative numerical limitations, technological controls or work practices during some modes of operation, such as startup and shutdown. As explained in detail in the February 2013 proposal and in this action, the EPA interprets the CAA to allow SIP provisions to include different numerical limitations or other control requirements as components of a continuously applicable emission limitation, so long as the SIP provision meets all other applicable requirements. However, the EPA disagrees with these commenters' conclusions that the need for “reasonable” and “achievable” emission limitations provides a legal justification for exemptions or affirmative defenses for excess emissions during SSM events.

First, many of the commenters erroneously presupposed that an emission limitation must continuously control emissions at the same rate, quantity, or concentration at all times. For sources or source categories that cannot comply with otherwise applicable emission limitations during certain modes of operation, such as startup and shutdown, the state may elect to develop alternative emission limitations applicable during those events as a component of the SIP provision. The EPA has provided recommended criteria for states to use in developing appropriate alternative emission limitations. Appropriate alternative emission limitations would ensure the existence of requirements that limit the quantity, rate or concentration of pollutants from the affected sources on a continuous basis, while also providing differing limitations tailored specifically to limit emissions during specified modes of source operation. As long as those differing limitations are components of a continuously applicable emission limitation that meets other applicable substantive requirements (e.g., is RACT for stationary sources in nonattainment areas) and that is legally and practically enforceable, then such alternative emission limitations are valid. States are not required to create such alternative emission limitations, but to do so is an acceptable approach.

Second, these commenters pointed to no provision of the CAA requiring or allowing exemptions or affirmative defenses for SSM events. Instead, they contend that D.C. Circuit opinions in Portland Cement Association v. Ruckelshaus[185] and Essex Chemical Corp. v. Ruckelshaus[186] require SIPs to include exemptions for emissions during SSM events. As an initial matter, these cases predate amendments to the CAA that expressly defined “emission limitation” as a requirement that continuously limits emissions. Furthermore, even accepting these commenters' interpretations of those cases (which as explained below, EPA does not), any purported holdings to that effect have been further eroded by more recent case law from the D.C. Circuit and other courts. Most importantly, the Sierra Club v. Johnson decision has reiterated that emission limitations must apply continuously in order to comply with section 302(k), and the logic of NRDC v. EPA decision indicates that affirmative defense provisions are not appropriate because they purport to alter the jurisdiction of the courts.[187]

In addition to these more recent legal developments, however, the two earlier D.C. Circuit cases highlighted by commenters simply did not hold what commenters claim that they held. With respect to the Portland Cement Association decision, commenters selectively quoted from the case for the proposition that the D.C. Circuit had “acknowledged” that malfunctions are an inescapable aspect of industrial life and that EPA must make allowances for malfunctions when promulgating standards. The full sentence from the opinion, however, makes clear that the D.C. Circuit was merely summarizing the “concern of manufacturers,” not stating the court's own position.[188] To the contrary, the EPA believes that Portland Cement stands for the broader proposition that a system incorporating flexibility is reasonable and consistent with the overall intent of the CAA, and the EPA merely “may” take such flexibility into account.[189] As relevant to this action, the flexibility provided states to ensure continuous controls by developing alternative emission limitations is fully consistent with that view of the CAA. SIP provisions that include alternative emission limitations provide the sort of “limited safety valve” contemplated by the courts that can serve to make SIP emission limitations more achievable without authorizing complete exemptions for Start Printed Page 33899emissions during SSM events in violation of statutory requirements.[190]

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

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

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

i. Comments that the EPA is requiring that all SIP emission limitations must be “numerical” at all times and set at the same numerical level at all times.

Comment: Many commenters on the February 2013 proposal evidently believed that the EPA was proposing an interpretation of the term “emission limitation” under section 302(k) that would requires all SIP provisions to impose numerical emission limits, and that such limits must be set at the same numerical level at all times. These commenters argued that numerical emission limitations are not required by the text of section 302(k). For example, commenters pointed to section 302(k)'s use of “work practice or operational standard[s]” as evidence that an emission limitation may be composed of more than merely numerical criteria. These commenters also reiterated their view that section 302(k) allows for or requires alternative limits during periods of SSM, including non-numerical alternative limits such as work practice or operational standards.

Response: At the outset, the EPA notes that it did not intend to imply that all emission limitations in SIP provisions must be expressed numerically, or that they must be set at the same numerical level for all modes of source operation. To the contrary, the EPA intended to indicate that states may elect to create emission limitations that include alternative emission limitations that apply during certain modes of source operation, such as startup and shutdown. This was the reason for inclusion of the recommended criteria for states to develop appropriate alternative emission limitations applicable during startup and shutdown in section VII.A of the February 2013 proposal. The EPA has provided similar recommended criteria in this final action (see section VII.B.2 of this document). The EPA agrees that neither section 110(a)(2)(A) nor section 302(k) inherently requires that SIP emission limitations must be expressed numerically. Furthermore, section 302(k) does not itself require imposition of numerical limitations or foreclose the use of higher numerical levels, specific technological controls or work practices during certain modes of operation.

Although some CAA programs may require or impose a presumption that emission limitations be expressed numerically, the text of section 110(a)(2)(A) and section 302(k) does not expressly state a preference for emission limitations that are in all cases numerical in form.[195] Rather, as many commenters pointed out, the critical aspect of an emission limitation in general is that it be a “requirement . . . which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis . . . .” [196] Accordingly, although other regulatory requirements may also apply, a non-numerical design standard, equipment standard, work practice standard or operational standard could theoretically meet the definition of “emission limitation” for purposes of section 302(k) if it continuously limited the quantity, rate or concentration of air pollutants.[197] By contrast, if a non-numerical requirement does not itself (or in combination with other components of the emission limitation) limit the quantity, rate or concentration of air pollutants on a continuous basis, then the non-numerical standard (or overarching requirement) does not meet the statutory definition of an emission limitation under section 302(k).

Finally, the EPA does not believe that section 110(a)(2)(A) or section 302(k) mandates that an emission limitation be composed of a single, uniformly applicable numerical emission limitation. As the EPA stated in the February 2013 proposal, “[i]f sources in fact cannot meet the otherwise applicable emission limitations during planned events such as startup and shutdown, then an air agency can develop specific alternative Start Printed Page 33900requirements that apply during such periods, so long as they meet other applicable CAA requirements.” [198] As explained in the EPA's response in section VII.A.3 of this document regarding the meaning of the statutory term “continuous,” the critical aspect for purposes of section 302(k) is not whether the emission limitation is expressed as a static versus variable numerical limitation but rather whether as a whole it constitutes a requirement that limits emissions on a continuous basis. Furthermore, any emission limitation must also meet all other applicable CAA requirements concerning stringency and enforceability.

j. Comments that an emission limitation can be “continuous” even if it has different numerical limitations applicable during some modes of source operation or has a combination of numerical emission limitations and specific control technologies or work practices applicable during other modes of operation.

Comment: Several commenters argued that an emission limitation can be “continuous” under section 302(k) even if it provides different substantive requirements applicable during SSM events. One commenter illustrated this position with a hypothetical:

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

Commenters pointed to a number of sources as justification for this position, including the text of section 302(k), relevant case law, legislative history of the 1977 CAA Amendments, prior EPA interpretations, and practical concerns.

Response: The EPA agrees with these commenters' conclusion that an “emission limitation” under section 302(k) does not need to be expressed as a static, inflexible limit on emissions. Rather, a SIP provision qualifying as an “emission limitation” consistent with section 302(k) must merely limit “the quantity, rate, or concentration” of emissions, and must do so “on a continuous basis.” The critical aspect for purposes of section 302(k) is that the SIP provision impose limits on emissions on a continuous basis, regardless of whether the emission limitation as a whole is expressed numerically or as a combination of numerical limitations, specific control technology requirements and/or work practice requirements, and regardless of whether the emission limitation is static or variable. For example, so long as the SIP provision meets other applicable requirements, it may impose different numerical limitations for startup and shutdown.

The EPA also agrees that the text of section 302(k) does not require states to impose emission limitations that include a static, inflexible standard. Rather, the term “emission limitation” is merely defined as a “requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis. . . .” The continuous limits imposed by emission limitations are a fundamental distinction between emission limitations and the other control measures, means or techniques that may also limit emissions.[199] The text of section 302(k), however, does not distinguish between a variable or static “requirement” that continuously limits emissions—all that is required is that the emissions are limited on a continuous basis.

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

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

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

Although this legislative history demonstrates congressional intent that any “emission limitation” would require limits on emissions at all times, this history does not necessarily indicate that the emission limitation must consist of a single static numerical limitation. Accordingly, this legislative history is consistent with the EPA's view that section 302(k) requires continuous limits on emissions and that variable (albeit still continuous) limits on emissions can qualify as an emission limitation for purposes of section 302(k).

Finally, although the EPA agrees with these commenters' conclusion, the EPA does not agree with these commenters' view that practical concerns require states in all cases to establish alternative emission limitations for modes of operation such as startup and shutdown within any continuously applicable emission limitation. Principles of cooperative federalism incorporated into section 110 allow states great leeway in developing SIP emission limitations, provided those limitations comply with applicable legal requirements.[204] States are thus not required to establish alternative emission limitations for any sources during startup and shutdown, but they may elect to do so. Neither the definition of “emission limitation” in section 302(k) nor the requirements of section 110(a)(2)(A) explicitly require states to develop emission limitations that include alternative emission limitations for periods of SSM, just as they do not explicitly preclude states from doing so.

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k. Comments that an emission limitation can be “continuous” even if it includes periods of exemptions from the emission limitation.

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

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

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

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

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

In adopting section 302(k)'s definition of “emission limitation,” Congress did not merely intend to prohibit the use of intermittent controls as final compliance strategies—much less intermittent controls as narrowly defined by commenters to mean only dispersion techniques and certain “tall stacks.” Rather, Congress intended to eliminate the fundamental problems Start Printed Page 33902that were illustrated by use of those controls.[217] SSM exemptions and affirmative defenses raise many of the same problems, and addressing those problems through this action fully accords with section 302(k)'s legislative history.

l. Comments that the “as may be necessary or appropriate” language in section 110(a)(2)(A) per se authorizes states to create exemptions in SIP emission limitations.

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

Some commenters further argued that regardless of what the terms “emission limitations” or “other control measures, means, or techniques” mean, section 110(a)(2)(A) only requires states to include such emission controls in SIPs “as may be necessary or appropriate” to meet the NAAQS, or some requirement germane to attainment of the NAAQS, such as various technology-based standards or general principles of enforceability. Commenters also disagreed with the EPA's purported interpretation that the statutory phrase “as may be necessary” only qualifies what “other control[s]” are required, rather than also qualifying what emission limitations are required. According to these commenters, that interpretation is a vestige of the 1970 CAA and was foreclosed by textual changes in the 1977 CAA Amendments or, alternatively, the 1990 CAA Amendments.

Response: The EPA disagrees with the commenters' interpretation of the “as may be necessary or appropriate” language of section 110(a)(2)(A). As an initial matter, those commenters contending that section 110(a)(2)(A) is only concerned with what is “necessary or appropriate” to attain and maintain the NAAQS (or some requirement germane to the NAAQS) ignore the plain language of section 110(a)(2)(A). While the predecessor provisions to section 110(a)(2)(A) prior to the 1990 CAA Amendments did indeed speak in terms of emissions controls “necessary to insure attainment and maintenance of [the NAAQS],” [219] the statute in effect today requires controls “necessary or appropriate to meet the applicable requirements of this chapter,” [220] i.e., to meet the requirements of the CAA as a whole. Thus, at a minimum, the EPA interprets the phrase “as may be necessary or appropriate” to include what is necessary or appropriate to meet legal requirements of the CAA, including the requirement that emission limitations must apply on a continuous basis.

Regardless of whether all SIPs must always contain emission limitations, the text of the CAA is clear that the EPA is at a minimum tasked with determining whether SIPs include all emission limitations that are “necessary” (i.e., required) “to meet the applicable requirements of” that CAA. Broadly speaking, this requires that the EPA determine whether the SIP meets the basic legal requirements applicable to all SIPs (e.g., the requirements of section 110(a)(2)(A) through (M)), whether the SIP contains emission limitations necessary to meet substantive requirements of the Act (e.g., RACT-level controls in nonattainment areas) and whether all emission limitations and other controls, as well as the schedules and timetables for compliance, are legally and functionally enforceable.

In every state subject to this SIP call, the EPA has previously concluded in approving the existing SIP provisions that the emission limitations are necessary to comply with legal requirements of the CAA. The states in question would not have developed and submitted them, and the EPA would not have approved them, unless the state and the EPA considered those emission limitations fulfilled a CAA requirement in the first instance. However, the automatic and discretionary exemptions for emissions during SSM events in the SIP provisions at issue in this action render those necessary emission limitations noncontinuous, and thus not meeting the statutory definition of “emission limitations” as defined in section 302(k). Accordingly, regardless of whether all SIPs must always include emission limitations, these specific SIP provisions fail to meet a fundamental requirement of the CAA because they do not impose the continuous emission limitations required by the Act.

The EPA also disagrees with the argument raised by commenters that its denial of the Petition with respect to a South Carolina SIP provision supports the validity of SSM exemptions in SIP emission limitations.[221] In that situation, the state determined that regulating the source category at issue was not a necessary or appropriate means of meeting the requirements of the CAA. The EPA's approval of that provision indicates that the Agency agreed with that determination. This factual scenario is not the same as one in which the state has determined that regulation of the source category is necessary or appropriate to meet CAA requirements. Once the determination is made that the source category must or should be regulated, then the SIP provisions developed by the state to regulate the source must meet applicable requirements. These include that any limits on emissions must be consistent with CAA requirements, including the requirement that any emission limitation limit emissions on a continuous basis. The EPA agrees that a state can validly determine that regulation of a source category is not necessary, so long as this is consistent with CAA requirements. This is not the same as allowing impermissible exemptions for emissions from a source category that must be regulated.

Finally, the EPA does not agree with commenters' allegations that that the EPA's interpretation of section 110(a)(2)(A) eliminates the states' discretion to take local concerns into account when developing their SIP provisions. Rather, for reasons discussed in more detail in the EPA's response in section V.D.2 of this document regarding cooperative federalism, the EPA's interpretation is Start Printed Page 33903fully consistent with the principles of cooperative federalism codified in the CAA. As courts have concluded, although Congress provided states with “considerable latitude in fashioning SIPs, the CAA `nonetheless subjects the States to strict minimum compliance requirements' and gives EPA the authority to determine a state's compliance with the requirements.” [222] This interpretation is also consistent with congressional intent that the EPA exercise supervisory responsibility to ensure that, inter alia, SIPs satisfy the broad requirements that section 110(a)(2) mandates that SIPs “shall” satisfy.[223] Where the EPA determines that a SIP provision does not satisfy legal requirements, the EPA is not substituting its judgment for that of the state but rather is determining whether the state's judgment falls within the wide boundaries of the CAA.

m. Comments that a “general duty” provision—or comparable generic provisions that require sources to “exercise good engineering judgment,” to “minimize emissions” or to “not cause a violation of the NAAQS”—inoculate or make up for exemptions in specific emission limitations that apply to the source.

Comment: Numerous commenters argued that even if some of the SIP provisions with SSM exemptions identified in this SIP call are not themselves emission limitations, they are nevertheless components of valid emission limitations. According to these commenters, some SIPs contain separate “general duty” provisions that are not affected by SSM exemptions and thus have the effect of limiting emissions from sources during SSM events that are explicitly exempted from the emission limitations in the SIP. These general-duty provisions vary, but most of them: (1) Instruct sources to “minimize emissions” consistent with good air pollution control practices, (2) prohibit sources from emitting pollutants that cause a violation of the NAAQS, or (3) prohibit source operators from “improperly operating or maintaining” their facilities.

Commenters contended that these general-duty provisions are requirements that—either alone or in combination with other requirements—have the effect of limiting emissions on a continuous basis. In other words, the commenter asserted that these general-duty provisions impose limits on emissions during SSM events, when the otherwise applicable controls no longer apply. According to these commenters, SSM exemptions that excuse noncompliance with typical controls do not interrupt the continuous application of an “emission limitation,” because these general-duty provisions elsewhere in the SIP or in a separate permit are part of the emission limitation and apply even during SSM events.

Some commenters further argued that some SSM exemptions themselves demonstrate that sources remain subject to general-duty provisions during SSM events. These SSM exemptions require sources seeking to qualify for the exemption to demonstrate that, inter alia, they were at the time complying with certain general duties. Accordingly, these commenters contended that the SSM exemption itself demonstrates that sources remain subject to requirements that limit their emissions during SSM events, even when the source is excused from complying with other components of the overarching emission limitation.

Finally, as evidence that these general-duty clauses must be permissible under the CAA, some commenters pointed to similar federal requirements established by the EPA under the NSPS and NESHAP programs.[224] These commenters argued that the D.C. Circuit's decision in Sierra Club v. Johnson[225] was limited to circumstances unique to section 112 and does not support a per se prohibition on general-duty clauses operating as “emission limitations.”

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

Furthermore, the fact that a SIP provision includes prerequisites to qualifying for an SSM exemption does not mean those prerequisites are themselves an “alternative emission limitation” applicable during SSM events. The text and context of the SIP provisions at issue in this SIP call action make clear that the conditions under which sources qualify for an SSM exemption are not themselves components of an overarching emission limitation—i.e., a requirement that limits emissions of air pollutants from the affected source on a continuous basis. Rather, these provisions merely identify the circumstances when sources are exempt from emission limitations.

Reviewing an example of the SIP provisions cited by commenters is illustrative of this point. For example, several commenters pointed to provisions in Alabama's SIP that excuse a source from complying with an otherwise applicable emission limitation only when the permittee “took all reasonable steps to minimize emissions” and the “permitted facility was at the time being properly operated.” According to commenters, the general duties in this provision—to take reasonable steps to minimize emissions, and to properly operate the facility—ensure that even during SSM events, the permittee remains subject to requirements limiting emissions.

However, a review of the provisions themselves in context—not selectively quoted—reveals that these general-duty provisions were included in the SIP not as components of an emission limitation but rather as components of an exception to that emission limitation. In order to qualify, the SIP requires the permittee to have taken “all reasonable steps to minimize levels of emissions that exceeded the emission standard” [227] —an acknowledgement that the emissions to be “minimize[d]” are those that “exceed[]” (i.e., go beyond) the required limits of “the emission standard.” In case there were any doubt that the general-duty provisions identified are elements of an exemption from an emission limitation, rather than components of the emission limitation itself, the provisions apply during what the Alabama SIP calls “[e]xceedances of emission limitations” [228] and are found within a Start Printed Page 33904broader section addressing “Exceptions to violations of emission limitations.” [229] By exempting sources from compliance with “the emission standard,” these exemptions render the SIP emission limitation noncontinuous, contrary to section 302(k).[230]

The consequences for failing to satisfy the preconditions for an exemption further bolster the conclusion that these preconditions are not themselves part of an emission limitation. Failure to meet the “general duty” preconditions for an SSM exemption means that the source remains subject to the otherwise applicable emission limitation during the SSM event and is thus liable for violating the emission limitation. If those general duties were independent parts of an emission limitation (rather than merely preconditions for an exemption), then one would expect that periods of time could exist when the source was liable for violating those general duties rather than the default emission limitation.

The general-duty provisions that apply as part of the SSM exemption are not alternative emission limitations; they merely define an unlawful exemption to an emission limitation. States have discretion to fix this issue in a number of ways, including by removing the exceptions entirely, by replacing these exceptions with alternative emission limitations including specific control technologies or work practices that do ensure continuous limits on emissions or by reformulating the entire emission limitation.

In addition to the EPA's fundamental disagreement with commenters that these general-duty provisions are actually components of emission limitations, the EPA has additional concerns about whether many of these provisions could operate as stand-alone emission limitations even if they were properly identified as portions of the overall emissions limitations in the SIP.[231] Furthermore, some of these general-duty provisions do not meet the level of stringency required to be an “emission limitation” compliant with specific substantive provisions of the CAA applicable to SIP provisions.[232] Accordingly, while states are free to include general-duty provisions in their SIPs as separate additional requirements, for example, to ensure that owners and operators act consistent with reasonable standards of care, the EPA does not recommend using these background standards to bridge unlawful interruptions in an emission limitation.[233]

The NSPS and NESHAP emission standards and limitations that the EPA has issued since Sierra Club demonstrate the distinct roles played by emission limitations and general-duty provisions. The emission limitations themselves are clear and legally and functionally enforceable, and they are composed of obviously integrated requirements that limit emissions on a continuous basis during all modes of source operation. Crucially, the general-duty provisions in these post-Sierra Club regulations merely supplement the integrated emission limitation; they do not supplant the emission limitation, which independently requires continuous limits on emissions. As discussed elsewhere in this document, the fact that the EPA is in the process of updating its own regulations to comply with CAA requirements does not alter the legal requirements applicable to SIPs.

n. Comments that EPA's action on the petition is a “change of policy.”

Comment: A number of commenters claimed that the EPA's action on the Petition is illegitimate because it is based upon a “change of policy.” Some commenters claimed that the EPA's reliance on the definition of “emission limitation” in section 302(k) and the requirements for SIP provisions in section 110(a)(2) as barring automatic exemptions are “new.” These commenters claimed that the EPA has historically relied on the fact that NAAQS are ambient-standard-based and that the EPA has relied also on the fact that SSM exemptions had potential adverse air quality impacts as the basis for interpreting the CAA to preclude exemptions. The commenters argued that this basis for the SSM Policy is evidenced by the fact that EPA itself historically included SSM exemptions in NSPS and NESHAP rules, which establish emission limitations that should be governed by section 302(k) as well.

Other commenters claimed that the EPA is changing its SSM Policy by seeking to revoke “enforcement discretion” exercised on the part of states, which the EPA specifically recognized as an acceptable approach in the 1983 SSM Guidance. A commenter asserted that “fairness principles” mean that the EPA cannot require a state to modify its SIP without substantial justification. The commenter further contended that the EPA's claim that it has a longstanding interpretation of the CAA that automatic exemptions are not allowed in SIP provisions is false; otherwise, the commenter argued, the EPA would not have approved some of the provisions at issue in the SIP call long after 1982. As evidence for this argument, the commenter pointed to the West Virginia regulations that provide an automatic exemption.

Finally, other commenters argued that the EPA's changed interpretation of the CAA requires an acknowledgement that the SSM Policy is being changed and a rational explanation for such change. These commenters noted that the EPA previously argued in a brief for the type of exemption provisions that it is now claiming are deficient, citing Sierra Club v. Johnson, No. 02-1135 (D.C. Cir. March 14, 2008). The commenters claimed that the EPA has provided no rational basis for its change in interpretation of the CAA concerning exemptions for emissions during SSM events.

Response: The EPA's longstanding position, at least since issuance of the 1982 SSM Guidance, is that SIP provisions providing an exemption from emission limitations for emissions during SSM events are prohibited by the CAA. The EPA's guidance documents issued in 1982 and 1983 expressly recognized that in place of exemptions, states should exercise enforcement discretion in determining whether to pursue a violation of an emission limitation. In the 1983 SSM Guidance, the EPA made recommendations for states that elected to adopt specific SIP provisions affecting their own exercise of enforcement discretion, so long as those provisions do not apply to enforcement discretion of the EPA or other parties under the citizen suit provision of the CAA. More than 15 years ago, in the 1999 SSM Guidance, the EPA reiterated its longstanding position that it is inappropriate for SIPs to exempt SSM emissions from compliance with emission limitations and repeated that instead of incorporating exemptions, enforcement discretion could be an appropriate tool. In addition, EPA clarified at that time that a narrowly tailored affirmative Start Printed Page 33905defense might also be an appropriate tool for addressing excess emissions in a SIP provision. However, in response to recent court decisions, and as discussed in detail in section IV of this document, the EPA no longer interprets the CAA to permit affirmative defense provisions in SIPs.

Although the EPA did not expressly rely on the definition of “emission limitation” in section 302(k) as the basis for its SSM Policy in each of these guidance documents, it did rely on the purpose of the NAAQS program and the underlying statutory provisions (including section 110) governing that program. In the 1999 SSM Guidance, however, the EPA indicated that the definition of emission limitation in section 302(k) was part of the basis for its position concerning SIP provisions.[234] After the EPA issued the 1999 SSM Guidance, the D.C. Circuit issued a decision holding that the definition of emission limitation in section 302(k) does not allow for periods when sources are not subject to emissions standards.[235] While the court's decision concerned the section 112 program addressing hazardous air pollutants, the EPA believes that the court's ruling concerning section 302(k) applies equally in the context of SIP provisions because the definition of emission limitation also applies to SIP requirements. That court's decision is consistent with and provides support for the EPA's longstanding position in the SSM Policy that exemptions from compliance with SIP emission limitations are not appropriate under the CAA.

Commenters claimed that by interpreting the CAA to prohibit exemptions for emissions during SSM events the EPA is revoking “enforcement discretion” exercised by the state. This is not true. As part of state programs governing enforcement, states can include regulatory provisions or may adopt policies setting forth criteria for how they plan to exercise their own enforcement authority. Under section 110(a)(2), states must have adequate authority to enforce provisions adopted into the SIP, but states can establish criteria for how they plan to exercise that authority. Such enforcement discretion provisions cannot, however, impinge upon the enforcement authority of the EPA or of others pursuant to the citizen suit provision of the CAA. The EPA notes that the requirement for adequate enforcement authority to enforce CAA requirements is likewise a bar to automatic exemptions from compliance during SSM events.

Commenters confused the EPA's evolution in describing the basis for its longstanding SSM Policy as a change in the SSM Policy itself. The EPA's interpretation of the CAA in the SSM Policy has not changed with respect to exemptions for emissions during SSM events. The EPA's discussion of the basis for its longstanding interpretation has evolved and become more robust over time as the EPA has responded to comments in rulemakings and in response to court decisions. In support of its interpretation of the CAA that exemptions for periods of SSM are not acceptable in SIPs, the EPA has long relied on its view that NAAQS are health-based standards and that exemptions undermine the ability of SIPs to attain and maintain the NAAQS, to protect PSD increments, to improve visibility and to meet other CAA requirements. By contrast, the EPA historically took the position that SSM exemptions were acceptable for certain technology-based standards, such as NSPS and NESHAP standards, and argued that position in the Sierra Club case cited by commenters. However, in that case, the court explicitly ruled against the EPA's interpretation, holding that exemptions for emissions during SSM events are precluded by the definition of “emission limitation” in CAA section 302(k). The Sierra Club court's rationale thus provided additional support for the EPA's longstanding position with respect to SSM exemptions in SIP provisions, and in more recent actions the EPA has relied on the reasoning from the court's decision as further support for its current SSM Policy. Thus, even if the EPA were proceeding under a “change of policy” here as the commenters claimed, the EPA has adequately explained the basis for its current SSM Policy, including the basis for any actual “change” in that guidance (e.g., the actual change in the SSM Policy with respect to affirmative defense provisions in SIPs). Courts have upheld an agency's authority to revise its interpretation of a statute, so long as that change of interpretation is explained.[236]

o. Comments that the EPA's proposed action on the petition is based on a “changed interpretation” of the definition of “emission limitation.”

Comment: Commenters claimed that the EPA's action on the Petition is based on a changed interpretation of the term “emission limitation” and that the Agency cannot apply that changed interpretation “retroactively.” One commenter cited several cases for the proposition that retroactivity is disfavored and that the EPA is applying this new interpretation retroactively to existing SIP provisions. The commenter claimed that the EPA approved the existing SIP provisions with full knowledge of what those provisions were and “consistent with the provisions EPA itself adopted and courts required.” The commenter characterized the SIP provisions for which the EPA is issuing a SIP call as “enforcement discretion” provisions and “affirmative defense” provisions for startup and shutdown. The commenter contended that the EPA does not have authority to issue a SIP call on the premise that the CAA is less flexible than the Agency previously thought. The commenter concluded that “[t]he factors of repose, reasonable reliance, and settled expectations favor not imposing EPA's new interpretations.”

Response: The EPA disagrees that this SIP call action has “retroactive” effect. As recognized by the commenter, this SIP call action does not automatically change the terms of the existing SIP or of any existing SIP provision, nor does it mean that affected sources could be held liable in an enforcement case for past emissions that occurred when the deficient SIP provisions still applied. Rather, the EPA is exercising its clear statutory authority to call for the affected states to revise specific deficient SIP provisions so that the SIP provisions will comply with the requirements of the CAA prospectively and so that affected sources will be required to comply with the revised SIP provisions prospectively.

To the extent that a SIP provision complied with previous EPA interpretations of the CAA that the Agency has since determined are flawed, or to the extent that the EPA erroneously approved a SIP provision that was inconsistent with the terms of the CAA, the EPA disagrees that it is precluded from requiring the state to modify its SIP now so that it is consistent with the Act. In fact, that is precisely the type of situation that the SIP call provision of the CAA is designed to address. Specifically, section 110(k)(5) begins, “[w]henever” the EPA determines that an applicable implementation plan is inadequate to attain or maintain the NAAQS, to mitigate adequately interstate pollutant transport, or “to otherwise comply with Start Printed Page 33906any requirement” of the Act, the EPA must call for the SIP to be revised. The commenter does not question that sections 110(a)(2) and 302(k) are requirements of the Act. Thus, the EPA has authority under section 110(k)(5) to call on states to revise their SIP provisions to be consistent with those requirements.

The EPA disagrees that the doctrines of “repose,” “reasonable reliance” and “settled expectations” preclude such an action. The CAA is clear that “whenever” the EPA determines that a SIP provision is inconsistent with the statute, “the Administrator shall” notify the state of the inadequacies and establish a schedule for correction. This language does not provide the Agency with discretion to consider the factors cited by the commenter in deciding whether to call for a SIP revision once it is determined to be flawed. Here, the EPA has determined that the SIP provisions at issue are flawed and thus the Agency was required to notify the states to correct the inadequacies.

p. Comments that the EPA should not encourage states to rely on enforcement discretion because this will inevitably lead to states' creating emission limitations that some sources cannot meet.

Comment: Commenters claimed that it is not appropriate for the EPA to encourage states to exercise enforcement discretion rather than to encourage them either to define periods when numerical emission limitations do not apply or to develop alternative emission limitations or other control measures. The commenters contended that inclusion of an enforcement discretion provision in a SIP is superfluous. The commenter cited to Portland Cement, where the D.C. Circuit court stated that “an excessively broad theory of enforcement discretion might endanger securing compliance with promulgated standards.” [237] The commenter also cited the Marathon Oil case in the Ninth Circuit in which the court rejected an approach that relied heavily on enforcement discretion. The commenter then asserted that sources are liable for violations and that “[s]ources should not be required to litigate remedy for violations they cannot avoid.” [238] The commenter concluded that it is “unreasonable for EPA to subject itself to claims that it must exercise its federal enforcement authority in the event a state refuses to enforce unachievable standards, or for states to put source owners and operators in jeopardy of criminal prosecution for starting up a source with knowledge that a numerical emission limitation might be exceeded. In summary, the commenter appeared to argue that the EPA should require states to establish alternative numerical emission limitations or other control requirements during SSM events, rather than merely eliminating SSM exemptions and relying on enforcement discretion to address SSM emissions.

Response: The EPA disagrees with the commenter's suggestion that the EPA should discourage states from relying on enforcement discretion. Enforcement discretion is a valid state prerogative, long recognized by courts. However, the EPA agrees with the commenter that states should not adopt overly broad enforcement discretion provisions for inclusion in their SIPs. Section 110(a)(2) requires states to have adequate enforcement authority, and overly broad enforcement discretion provisions would run afoul of this requirement if they have the effect of precluding adequate state authority to enforce SIP requirements. The EPA also agrees that states may elect to include alternative emission limitations, whether expressed numerically or otherwise, for certain periods of normal operations, including startup and shutdown.

It is unclear precisely what the commenters are advocating when they suggest that sources should not be subject to litigating a remedy for violations they cannot avoid. The likely interpretation is that the commenters believe that excess emissions during unavoidable events should be automatically exempted (i.e., not considered a violation). This approach was rejected by the court in Sierra Club v. Johnson, because it was not consistent with the definition of emission limitation in section 302(k).[239] As previously explained in the February 2013 proposal and in this document, the EPA believes that definition, and thus the court's holding in Sierra Club, is equally relevant for the SIP program.

With respect to a commenter's concerns about criminal enforcement, the EPA disagrees that sources will be unable to start operations because they will automatically be subject to criminal prosecution if an emission limitation is exceeded during a malfunction. Under CAA section 113(c), criminal enforcement for violation of a SIP can occur when a person knowingly violates a requirement or prohibition of an implementation plan “during any period of federally assumed enforcement or more than 30 days after having been notified” under the provisions governing notification that the person is violating that specific requirement of the SIP. The EPA is unaware of any jurisdictions where federally assumed enforcement is in force, and the EPA does not anticipate that this situation would arise often. Thus, in almost every case, criminal enforcement would not occur in the absence of a pending notification of a civil enforcement case and could then apply only for repeated violation of the activity at issue in that civil action. Moreover, the concern raised by the commenter is one that would exist if there is any requirement that applies during a period of malfunction beyond the owner's control. The commenter's preferred way to address this concern would be to exempt these periods from compliance with any requirements, an approach rejected by the Sierra Club court as inconsistent with the definition of “emission limitation” and an approach that the EPA's longstanding SSM Policy has explained is inconsistent with the purpose of the NAAQS program, which is to ensure public health is protected through attainment and maintenance of the NAAQS, protection of PSD increments, improvement of visibility and compliance with other requirements of the CAA.

Finally, to the extent that the commenter was advocating that the EPA should require states to develop SIP provisions that impose alternative emission limitations during certain modes of source operation such as startup and shutdown to replace SSM exemptions, the EPA notes that to require states to do so would not be consistent with the principles of cooperative federalism and could be misconstrued as the Agency's imposing a specific control requirement in contravention of the Virginia decision.[240] As the commenter elsewhere itself argued, states have broad discretion in how to develop SIP provisions to meet the objectives of the CAA, so long as those provisions also meet the legal requirements of the CAA. To the extent that a state would prefer to have emission limitations that apply continuously, without higher numerical levels or specific technological controls or work practice standards applicable during modes of operation such as startup and shutdown, that is the prerogative of the state, so long as the revised SIP provision otherwise meets Start Printed Page 33907CAA requirements. If a state determines that it is reasonable to require a source to meet a specific emission limitation on a continuous basis and also decides to rely on its own enforcement discretion to determine whether a violation of that emission limit should be subject to enforcement, then the EPA believes that to do so is within the discretion of the state.

q. Comments that the EPA's action on the Petition is inconsistent with the Credible Evidence Rule.

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

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

The EPA's general statements in the February 2013 proposal, the SNPR and this final action about treatment of SSM emissions as a violation pertain to another basic principle, i.e., that SIP provisions cannot treat emissions during SSM events as exempt, because this is inconsistent with CAA requirements. Thus, when the EPA explains that these emissions must be treated as “violations” in SIP provisions, this is meant in the sense that states with SSM exemptions need to remove them, replace them with alternative emission limitations that apply during startup and shutdown or eliminate them by revising the emission limitation as a whole. Once impermissible SSM exemptions are removed from the SIP, then any excess emissions during such events may be the subject of an enforcement action, in which the parties may use any appropriate evidence to prove or disprove the existence and scope of the alleged violation and the appropriate remedy for an established violation. To be clear, the fact that these emissions are currently exempt through inappropriate SIP provisions is a deficiency that the EPA is addressing in this action. Thus, the EPA disagrees with the commenters' suggestion that these emissions are never to be treated as violations simply because a deficient SIP provision currently includes an SSM exemption. Once the SIP provisions are corrected, the excess emissions may be addressed through the legal structure for establishing an enforceable violation, which then may be proven using appropriate evidence, including test method evidence or other credible evidence. This means that excess emissions that occur during an SSM event will be treated for enforcement purposes in exactly the same manner as excess emissions that occur outside of SSM events. The EPA acknowledges that the limitation that applies during a startup or shutdown event might ultimately be different (whether higher or lower) than the limitation that applies at other times, if the state elects to replace the SSM exemption with an appropriate alternative emission limitation in response to this SIP call action.

The EPA also disagrees with commenters who claimed that statements by the Agency in the Credible Evidence Rule final rule preamble support the inclusion of exemptions for SSM events in SIP provisions. The commenter is correct that at that time, the EPA held the view that emission limitations in its own NSPS could be considered “continuous,” notwithstanding the fact that they contained “specifically excused periods of noncompliance” (i.e., exemptions from emission limitations during SSM events).[243] Similarly, at that time the EPA relied on a number of reported court decisions discussed in the preamble for the Credible Evidence Rule for determining at that time that NSPS could contain such exemptions in order to make the emission limitations “reasonable.” However, after the court's decision in the Sierra Club case interpreting the definition of emission limitation in section 302(k), these EPA statements in the preamble for the Credible Evidence Rule are no longer correct and thus do not apply to the EPA's action in this document.

First, the EPA notes that these prior statements related to the Credible Evidence Rule specifically addressed not SIP provisions but rather the provisions of the Agency's own technologically based NSPS. The statements in the document make no reference to SIP provisions, which is unsurprising given that EPA's SSM Policy at the time indicated that no such SSM exemptions are appropriate in SIP provisions. Second, the EPA's justification for exemptions from emission limitations during SSM events in NSPS was made prior to the 2008 Start Printed Page 33908decision of the court in the Sierra Club case. The EPA's interpretation of the statute and the case law to justify exemptions for emissions during SSM events in that 1997 document is no longer correct. Finally, the EPA in its own new NESHAP and NSPS regulations is now providing no exemptions for emissions during SSM events and is imposing specific numerical limitations or other control requirements on sources that apply to affected sources at all times, including during SSM events.[244] Thus, the statements in the 1997 Credible Evidence Rule preamble relied upon by commenters do not render the EPA's interpretation of the CAA with respect to SSM exemptions in SIP provisions in this action incorrect.

For clarity, the EPA emphasizes that it is in no way reopening, revising or otherwise amending the Credible Evidence Rule in this action. The EPA is merely responding to commenters who characterized the relationship between Agency statements in that rulemaking action and this SIP call action. The EPA also emphasizes that no changes to the Credible Evidence Rule should be necessary as a result of this rulemaking.

r. Comments that exemptions in opacity standards should be permissible because opacity is not a NAAQS pollutant.

Comment: Many state and industry commenters argued that the EPA should interpret the CAA to allow SIP provisions that impose opacity emission limitations to contain exemptions for SSM events or for other modes of source operation. The reasons given by commenters ranged broadly, but they included assertions that opacity is not a criteria pollutant, that opacity limitations serve no purpose other than as a tool to monitor PM control device performance, that there is no reliable correlation between opacity and PM mass, that there are circumstances during which sources may not be capable of meeting the otherwise applicable SIP opacity standards and that opacity is not an “air pollutant.” Commenters also argued that because SIP opacity standards were originally established when the NAAQS applied to “total suspended particles” (TSP), rather than the current PM10 and PM2.5, this alone should be a reason to allow SSM exemptions now that the NAAQS have been revised and the indicator species changed. Some of the commenters acknowledged that their underlying concern is that requirements for COMS on certain sources have rendered it much easier to monitor exceedances of SIP opacity limits and to bring enforcement actions for alleged violations.

Response: The EPA agrees with many of the points made by commenters but not with the conclusion that the commenters drew from these points, i.e., that exemptions for SSM events are appropriate in SIP provisions that impose opacity emission limitations.

First, although the EPA agrees that opacity itself is not a criteria pollutant and that there is thus no NAAQS for opacity, this does not mean that SIP opacity limitations are not “emission limitations” subject to the requirements of section 110(a)(2)(A) and do not need to be continuous. As the commenters often conceded, opacity is a surrogate for PM emissions for which there are NAAQS, and opacity has served this purpose since the beginning of the SIP program in the 1970s. SIP provisions that impose opacity emission limitations often date back to the earliest phases of the SIP program. From the outset, such opacity limitations have provided an important regulatory tool for implementing the PM NAAQS and for limiting PM emissions from sources. To this day, states continue to use opacity limitations in SIP provisions and the EPA continues to use opacity limitations in its own NSPS and NESHAP regulations, as necessary, for specific source categories.[245] EPA regulations applicable to SIPs explicitly define the term “emission limitation” to include opacity limits.[246] It is also important to note that these SIP provisions impose opacity emission limitations that sources must meet independently; i.e., opacity limitations are independent “emission limitations” under section 110(a)(2)(A) that must, consistent with section 302(k), “limit[ ] the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” These opacity emission limitations in SIP provisions are not stated conditionally as opacity limits that sources do not need to meet if they are otherwise in compliance with PM mass emission limitations or with any other CAA requirements. Thus, the fact that opacity is not itself a criteria pollutant is irrelevant.

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

Third, the EPA agrees that the precise correlation between opacity and PM mass emissions is not always known for a specific source under all operating conditions, unless there is parallel testing and measurement of the opacity and the PM emissions to determine the correlation at that particular source. Similarly, parametric monitoring can be used to establish such a correlation. Nevertheless, there is commonly a positive correlation between PM and opacity and thus elevated opacity is often indicative of additional PM Start Printed Page 33909emissions from a source. Even in those instances where a precise correlation is not available, however, the use of opacity as a means to assure the reduction of PM emissions and to monitor source compliance remains a valid approach to regulation of PM from sources. In any event, the absence of a precise correlation between opacity and PM does not justify the complete exemptions from SIP opacity limitations during SSM events that the commenters advocate and instead suggests that it may be appropriate to replace such exemptions with valid and enforceable alternative numerical limitations or other control requirements as a component of the SIP opacity emission limitation that applies during startup and shutdown. Opacity emission limitations in SIPs must meet the statutory requirements for emission limitations.

Fourth, the EPA agrees with commenters that for some sources some PM controls cannot operate, or operate at full effectiveness and ideal efficiency, during startup and shutdown. Accordingly, as the commenters implicitly recognized, the resulting increases in PM emissions can result in elevated opacity and thus exceedances of the applicable SIP opacity emission limitations. In those situations where it is true that no additional emissions controls are available or would function more effectively to reduce PM emissions, and hence to reduce opacity, it may be appropriate for states to consider imposing an alternative opacity emission limitation applicable during startup and shutdown. As discussed in section VII.B.2 of this document, the EPA provides recommendations to states concerning how to develop such alternative emission limitations. To the extent that sources believe that a SIP provision with a higher opacity level for startup and shutdown may be justified, they may seek these alternative limitations from the state and they can presumably advocate for opacity standards that are tailored to reflect the correlation between PM mass and opacity at a specific source. Significantly, however, even if it is appropriate to impose a somewhat higher opacity limitation for some sources during specifically defined modes of operation such as startup and shutdown, that does not justify the total exemptions from SIP opacity emission limitations during SSM events that the commenters advocated. To provide total exemptions from SIP opacity emission limitations during SSM events does not provide any incentive for sources to be better designed, operated, maintained and controlled to reduce emissions, nor does it comply with the most basic requirement that SIP emission limitations be continuous in accordance with section 302(k). As explained in section X.B of this document, the SIP revisions in response to this SIP call action will need to be consistent with the requirements of sections 110(k)(3), 110(l) and 193 as well as any other applicable requirements.

Fifth, the EPA notes that few commenters seriously argued that SIP provisions for opacity do not fit within the plain language of section 110(a)(2)(A) or the definition of “emission limitation” in section 302(k) or in EPA regulations applicable to SIP provisions. Section 110(a)(2)(A) requires SIPs to contain such enforceable emission limitations “as may be necessary and appropriate to meet the applicable requirements of” the CAA. Opacity limitations in SIP provisions are necessary and appropriate for a variety of reasons already described, including as a means to reduce PM emissions, as a means to monitor source compliance and to provide for more effective enforcement. Opacity limitations in SIP provisions also easily fit within the concept of a limit on the “quantity, rate or concentration of air pollutants” that relates to the “operation or maintenance of a source to assure continuous emission reduction and any design, equipment, work practice or operational standard” under the CAA, as provided in section 302(k). The term “air pollutant” is defined broadly in section 302(g) to mean “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” Even if opacity is not itself an air pollutant, it is clearly a means of monitoring and limiting emissions of PM from sources and is thus encompassed within the definition of “emission limitation” in section 302(k).[247] Significantly, existing EPA regulations applicable to SIP provisions already explicitly define the term “emission limitation” to include opacity limitations.[248]

Finally, the EPA does not agree with commenters who argued that because SIP opacity limitations were often originally imposed when the PM NAAQS was for TSP, it is legally acceptable to have exemptions for emissions during SSM events now that the PM NAAQS use PM10 and PM2.5 as the indicator species. On a factual level, it is obvious that SIP provisions for opacity limitations are expressed in terms of percentage “opacity” unrelated to the size of the particles. Opacity represents the degree to which emissions reduce the transmission of light and obscures the view of an object in the background. In general, the more particles which scatter or absorb light that passes through an emissions point, the more light will be blocked, thus increasing the opacity percentage of the emissions plume. The EPA agrees that variables such as the size, number and composition of the particles in the emissions can result in variations in the percentage of opacity. Notwithstanding the changes in the NAAQS, however, both states and the EPA have continued to rely on opacity limitations because they serve the same purposes for the current PM10 and PM2.5 NAAQS (and other purposes such as the regulation of HAPs under section 112) that they previously did for the TSP NAAQS. Indeed, as the PM NAAQS have been revised to provide better protection of public health, the need for such opacity limitations continues unless there is a better means to monitor source compliance, such as PM CEMS. As with other SIP emission limitations, the EPA interprets the CAA to preclude SSM exemptions in opacity standards.

s. Comments that exemptions from SIP opacity limitations for excess emissions during SSM events should be allowed because such emissions are difficult to monitor or to control.

Comment: Several commenters argued that the EPA's proposal of a SIP call for SIP opacity emission limitations that include an SSM exemption is arbitrary and capricious because it is difficult or impossible to monitor or measure opacity during SSM events. According to commenters, there is no compliance methodology to determine whether opacity limitations are met during SSM events and this is the reason that the EPA's own general provisions for NSPS and NESHAP exclude emissions during SSM events as “not representative” of source operation. In the absence of a specific methodology to demonstrate compliance, the commenters argued that expecting sources to comply with any opacity emission limitations during SSM events is arbitrary and capricious. The commenters asserted that in light of this, the EPA must interpret the CAA to allow exemptions for SSM events in SIP opacity provisions.

A number of commenters also argued that because emission controls for PM do not function, or do not function as effectively or efficiently, during certain Start Printed Page 33910modes of source operation, the EPA should interpret the CAA to permit exemptions for SSM events in opacity emission limitations. Many commenters explained that certain types of emission controls at certain types of sources only operate at specific temperatures or under specific conditions. For example, many commenters stated that existing pollution control devices on certain categories of stationary sources do not operate, or do not operate as effectively or efficiently, during startup and shutdown. Based upon this assertion, the commenters argued that the EPA should interpret the CAA to allow total exemptions from SIP opacity emission limitations during such periods.

Commenters also characterized the EPA's February 2013 proposal as “particularly unreasonable” with respect to SSM exemptions in SIP opacity limitations, because those limitations should be allowed to exclude elevated opacity during periods when PM emissions controls devices are “not expected to operate correctly.” According to commenters, treating the higher opacity during SSM events “as a violation simply because it is indicating something that is expected is ridiculous.” As an example, the commenters specifically mentioned occurrences such as when a source's electrostatic precipitator (ESP) is not functioning or is not functioning properly as periods during which there should be an exemption from SIP opacity emission limitations.

Response: The EPA agrees with some of the points made by commenters but does not agree with the conclusions that the commenters drew from these points, i.e., that alleged difficulties in monitoring, measuring or controlling opacity during some modes of source operation in general justify complete exemptions from opacity emission limitations during SSM events.

First, the EPA does not agree with the argument that there is no “compliance methodology” available for purposes of verifying compliance with SIP opacity limitations. Since the earliest phases of the SIP program, Reference Method 9 has been available as a means of verifying a source's compliance with applicable SIP opacity emission limitations. Whatever concerns the commenters may have with this test method, it is a valid method and it continues to be used as a means of verifying source compliance with opacity limitations and a source of evidence for determining whether there are violations of such emission limitations.[249] Sources routinely monitor and certify to their compliance with SIP opacity limitations based upon Method 9. In addition, COMS have been available, and in some cases are required, as another means of monitoring emissions and verifying compliance with opacity emission limitations. With respect to COMS, commenters expressed concerns that they are not always accurate, are not always properly calibrated or are not always the reference test method for SIP opacity emission limitations, and other similar arguments. In this rulemaking, the EPA is not addressing these allegations concerning COMS but merely noting that COMS are an available means of monitoring opacity from sources and in appropriate circumstances can provide data meeting the EPA's criteria as credible evidence to be used to determine compliance with emission limitations.

Second, the EPA does not agree that the fact that its regulations concerning performance tests in 40 CFR 63.7(e) for NESHAP and in 40 CFR 60.8(c) for NSPS exclude SSM emissions for purposes of evaluation of emissions under normal operating conditions provides a justification for SSM exemptions from opacity emission limitations in SIP provisions. The D.C. Circuit decision in Sierra Club has already indicated that such exemptions are not permissible in emission limitations and vacated the general provisions applicable to NESHAP. In the case of the exemption language in 40 CFR 60.8(c) relevant to NSPS, the EPA acknowledges that it has not yet taken action to revise the language to eliminate that exemption. However, in promulgating new NSPS regulations subsequent to the Sierra Club decision, the EPA is including emission limitations for newly constructed, reconstructed and modified sources that apply continuously and including provisions expressly stating that the SSM exemptions in the General Provisions do not apply. The EPA notes that the commenter is also in error because the performance tests are intended to be a means of evaluating emissions from sources during periods that are representative of source operation.

Third, the EPA does not agree with the premise that because certain forms or types of emission controls do not work, or do not work as effectively or efficiently, during certain modes of operation at some sources, it necessarily follows that sources should be totally exempt from emission limitations during such periods. The EPA interprets the CAA to require that SIP emission limitations be continuous. As explained in section VII.A of this document, emission limitations do not necessarily need to be expressed numerically, can have higher numerical levels during certain modes of operation, and may be composed of a combination of numerical limitations, specific technological control requirements and/or work practice requirements during certain modes of operation, so long as these emission limitations meet applicable CAA stringency requirements and are legally and practically enforceable. If it is factually accurate that a given source category requires a higher opacity limit during periods such as startup and shutdown, then the state may elect to develop one consistent with other CAA requirements. The EPA has provided guidance to states with criteria to consider in revising their SIP provisions to replace exemptions with an appropriate alternative emission limitation for such purposes. The EPA emphasizes that even if it is the case that existing control measures cannot operate, or cannot operate as effectively or efficiently, during startup and shutdown at a particular source, this does not legally justify a complete exemption from SIP emission limitations and may merely indicate that additional emission controls or work practices are necessary when the existing control measures are insufficient to meet the applicable SIP emission limitation. The EPA is taking this approach with its own recent NSPS and NESHAP regulations, when appropriate, in order to ensure that its own emission limitations are consistent with CAA requirements.

Finally, the EPA also disagrees with the logic of commenters that argued in favor of exemptions from SIP opacity limitations during periods when a source is most likely to violate them, e.g., when the source's control devices are not functioning. Even if exemptions from SIP opacity emission limitations were legally permissible under the CAA, which they are not, it would be illogical to excuse compliance with the standards during the precise periods when opacity standards are most Start Printed Page 33911needed to monitor source compliance with SIP emission limitations and provide incentives to avoid and promptly correct malfunctions; i.e., it would be illogical to require no legal restriction on emissions when the sources are most likely to be emitting the most air pollutants. Inclusion of exemptions for exceedances of SIP opacity limitations during such periods would remove incentives to design, maintain and operate the source correctly, and to promptly correct malfunctions, in order to assure that it meets the applicable SIP emission limitations. By exempting excess emissions during such events, the provision would undermine the enforcement structure of the CAA in section 113 and section 304, through which the air agency, the EPA and citizens are authorized to assure that sources meet their obligations. The EPA emphasizes that while exemptions from SIP limitations are not permissible in SIP provisions, states may elect to impose appropriate alternative emission limitations. They may include alternative numerical limitations, control technologies or work practices that apply during modes of operation such as startup and shutdown, so long as all components of the SIP emission limitation meet all applicable CAA requirements.

t. Comments that exemptions in SIP opacity limitations should be permissible for “maintenance,” “soot-blowing” or other normal modes of source operation.

Comment: A number of industry commenters argued that the EPA should interpret the CAA to allow exemptions from SIP opacity limitations for “maintenance.” The commenters stated that during maintenance, sources must shut down operations and control devices while the source is cleaned or repaired. During such periods, the commenters explained, a ventilation system operated to protect workers at the source could result in monitored exceedances of a SIP opacity limitation. Commenters specifically argued that although COMS data may suggest violations of opacity standards during such periods, the fact that the source is not combusting fuel during maintenance should mean that the opacity emission limitation does not apply at such times. According to commenters, opacity limitations are only intended to reflect the performance of pollution control equipment while the source is operating and thus have no relevance during periods of maintenance. Other commenters made comparable arguments with respect to soot-blowing, asserting that the high opacity levels during this activity are “indicative of normal ESP operation, not poor performance.” In other words, the commenters argued that opacity limitations should contain complete exemptions for opacity emitted during soot-blowing on the theory that the elevated emissions during this mode of operation show that the control measure on a source is functioning properly. The commenters further argued that considering emissions during soot-blowing for purposes of PM limitations is appropriate, but not for purposes of opacity limitations, because of the way in which regulators developed the respective emission limitations.

Response: The EPA does not agree that exemptions from SIP opacity limitations are appropriate for any mode of source operation, whether during SSM events or during other normal, predictable modes of source operation. To the extent that there are legitimate technological reasons why sources are able to meet only a higher opacity limitation during certain modes of operation, it does not follow that this constraint justifies complete exemption from any standard or any alternative technological control or work practice in order to reduce opacity during such periods. Providing a complete exemption for opacity during these modes of source operation, and no specific alternative emission limitation during such periods, removes incentives for sources to be properly designed, maintained and operated to reduce emissions during such periods.

With respect to maintenance, the EPA does not agree with commenters that total exemptions from opacity emission limitations during such activities are consistent with CAA requirements for SIP provisions. As the EPA has stated repeatedly in its interpretation of the CAA in the SSM Policy, maintenance activities are predictable and planned activities during which sources should be expected to comply with applicable emission limitations.[250] The premise of the commenters advocating for such exemptions for all emissions during maintenance is evidently that nothing can be done to limit PM emissions and thus limit opacity during maintenance activities, and the EPA disagrees with that general premise. To the extent appropriate, however, states may elect to create alternative emission limitations applicable to opacity during maintenance periods, so long as they are consistent with CAA requirements. The EPA provides recommendations for alternative emission limitations in section VII.B.2 of this document.

With respect to soot-blowing, the EPA likewise does not agree that total exemptions from opacity limitations during such periods are consistent with CAA requirements. As with maintenance in general, soot-blowing is an intentional, predictable event within the control of the source. The commenters' implication is that nothing whatsoever could be done to limit opacity during such activities, and the EPA believes that this is both inaccurate and not a justification for sources' being subject to no standards whatsoever during soot-blowing. In addition, the EPA disagrees with the commenters' claim that exemptions from opacity emission limitations during soot-blowing are legally permissible because this allegedly shows that the control devices for opacity and PM are in fact performing correctly. This argument incorrectly presupposes that the sole reason for SIP opacity emission limitations is as a means of better evaluating control measure performance. This is but one reason for SIP opacity limitations. Moreover, the EPA notes, excusing opacity during soot-blowing has the diametrically opposite effect of the actual purpose of the control devices and can result in much higher emissions as opposed to encouraging limiting these emission with other forms of controls.

Finally, the EPA notes, the commenters' argument that whether opacity limitations should apply during soot-blowing depends upon whether the emissions were or were not accounted for in the applicable PM emissions is also based upon an incorrect premise. Even if the PM emission limitation applicable to a source was developed to include the emissions during soot-blowing specifically, it does not follow that sources should be completely exempted from opacity limitations during such periods. As the commenters themselves frequently acknowledged, when compared to other enforcement tools, SIP opacity provisions often provide a much more effective and continuous means of determining source compliance with SIP PM limitations and control measure performance. A typical SIP opacity provision imposes an emission limitation such as 20 percent opacity at all times, except for 6 minutes per hour when those emissions may rise to 40 percent opacity. Well-maintained and Start Printed Page 33912well-operated sources should be able to meet such SIP opacity limitations. Given that properly designed, maintained and operated sources should typically have opacity substantially below these levels, elevated opacity at a source is a good indication that the source may not be in compliance with its applicable PM limitations.

u. Comments that elimination of exemptions from SIP opacity emission limitations during SSM events will compel states to alter the averaging period of opacity limitations so as to allow sources to have elevated emissions during SSM events.

Comment: Commenters argued that if exemptions for excess emissions during SSM events are not legally permissible in SIP opacity emission limitations, then states will have no option but to alter the existing opacity limitations. The commenters argued that if the SSM exemptions are removed, then the averaging time should be “greatly extended” and the numerical limits “should be significantly increased.”

Response: The EPA agrees that SIP provisions for opacity that contain exemptions for SSM events at issue in this action must be revised to eliminate the exemptions. States may elect to do this by merely removing the exemptions, by replacing the exemptions with appropriate alternative emission limitations that apply in place of the exemptions or, as the commenters evidently advocate, by a total overhaul of the emission limitation. The EPA disagrees, however, with the commenters' contentions that removal of the SSM exemptions would necessarily result in extensions of the averaging time or increases of the numerical levels in the existing SIP opacity emission limitations. In some cases, extension of the averaging period and elevation of the numerical limitations may in fact be appropriate. In other cases, however, it may instead be appropriate to reduce the existing numerical opacity limitations, given improvements in control technology since the original imposition of the limits and the need for additional PM emission reductions from the affected sources due to more recent revisions to the PM NAAQS. Thus, the EPA notes, a total revision of some of the SIP opacity limitations at issue in this action may indeed be the proper course for states to consider. The implications of the commenters' argument, however, are that existing opacity limitations will automatically need to be revised in order to allow sources to continue to emit as usual and that states and sources may ignore improvements that have been made in source design, operation, maintenance or controls to reduce emissions. The EPA emphasizes that the removal of impermissible SSM exemptions should not be perceived as an opportunity to provide new de facto exemptions for these emissions by manipulation of the averaging time and the numerical level of existing opacity emission limitations.

In any event, the EPA is not in this final action deciding how states must revise SIP opacity emission limitations but is merely issuing a SIP call directing the affected states to eliminate existing automatic and discretionary exemptions for excess emissions during SSM events. The affected states will elect how best to respond to this SIP call, whether by simply removing the exemptions, by replacing the exemptions with appropriate alternative emission limitations applicable to startup and shutdown or other normal modes of operation or by a complete overhaul of the SIP provision in question. In particular, where the affected sources are located in designated nonattainment areas, there may be a need to evaluate additional controls that are needed for attainment planning purposes that were not necessary when the emission limitation was first adopted. Whichever approach a state determines to be most appropriate, the resulting SIP submission to revise the existing deficient provisions will be subject to review by the EPA pursuant to sections 110(k)(3), 110(l) and 193. Considerations relevant to this issue are discussed in section X.B of this document.

B. Alternative Emission Limitations During Periods of Startup and Shutdown

1. What the EPA Proposed

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

In the February 2013 proposal, the EPA also repeated its guidance concerning establishment of alternative emission limitations that apply to sources during startup and shutdown, in those situations where the sources cannot meet the otherwise applicable SIP emission limitations. As explained in section VII.A of the February 2013 proposal, the EPA interprets the CAA to require that SIP emission limitations must be continuous and thus to prohibit exemptions for emissions during startup and shutdown. This does not, however, mean that every SIP emission limitation must be expressed as a numerical limitation or that it must impose the same limitations during all modes of source operation. The EPA's interpretation of the CAA with respect to SIP provisions is that SIP emission limitations: (i) Do not need to be numerical in format; (ii) do not have to apply the same limitation (e.g., numerical level) at all times; and (iii) may be composed of a combination of numerical limitations, specific technological control requirements and/Start Printed Page 33913or work practice requirements, with each component of the emission limitation applicable during a defined mode of source operation. Regardless of how an air agency elects to express the emission limitation, however, the emission limitation must limit emissions from the affected sources on a continuous basis. Thus, if there are different numerical limitations or other control requirements that apply during startup and shutdown, those must be clearly stated components of the emission limitation, must meet the applicable level of control required for the type of SIP provision (e.g., be RACT for sources located in nonattainment areas) and must be legally and practicably enforceable.

2. What Is Being Finalized in This Action

The EPA is reiterating its interpretation of the CAA to allow SIP emission limitations to include components that apply during specific modes of source operation, such as startup and shutdown, so long as those components together create a continuously applicable emission limitation that meets the relevant substantive requirements and requisite level of stringency for the type of SIP provision at issue and is legally and practically enforceable. In addition, the EPA is updating the specific recommendations to states for developing such alternative emission limitations described in the February 2013 proposal, by providing in this document some additional explanation and revisions to the text of its recommended criteria regarding alternative emission limitations.

The EPA's longstanding position is that the CAA does not allow SIP provisions that include exemptions from emission limitations for excess emissions that occur during startup and shutdown. The EPA reiterates that exemptions from SIP emission limitations are also not permissible for excess emissions that occur during other periods of normal source operation. A number of SIP provisions identified in the Petition create automatic or discretionary exemptions from otherwise applicable emission limitations during periods such as “maintenance,” “load change,” “soot-blowing,” “on-line operating changes” or other similar normal modes of operation. Like startup and shutdown, the EPA considers all of these to be modes of normal operation at a source, for which the source can be designed, operated and maintained in order to meet the applicable emission limitations and during which the source should be expected to control and minimize emissions. Accordingly, exemptions for emissions during these periods of normal source operation are not consistent with CAA requirements. Excess emissions that occur during planned and predicted periods should be treated as violations of any applicable emission limitations.

However, the EPA interprets the CAA to allow SIPs to include alternative emission limitations for modes of operation during which an otherwise applicable emission limitation cannot be met, such as may be the case during startup or shutdown. The alternative emission limitation, whether a numerical limitation, technological control requirement or work practice requirement, would apply during a specific mode of operation as a component of the continuously applicable emission limitation. For example, an air agency might elect to create an emission limitation with different levels of control applicable during specifically defined periods of startup and shutdown than during other normal modes of operation. All components of the resulting emission limitation must meet the substantive requirements applicable to the type of SIP provision at issue, must meet the applicable level of stringency for that type of emission limitation and must be legally and practically enforceable. The EPA will evaluate a SIP submission that establishes a SIP emission limitation that includes alternative emission limitations applicable to sources during startup and shutdown consistent with its authority and responsibility pursuant to sections 110(k)(3), 110(l) and 193 and any other CAA provision substantively germane to the SIP revision. Absent a properly established alternative emission limitation for these modes of operation, a source should be required to comply with the otherwise applicable emission limitation.

In addition, the EPA is providing in this document some additional explanation and clarifications to its recommended criteria for developing alternative emission limitations applicable during startup and shutdown. The EPA continues to recommend that, in order to be approvable (i.e., meet CAA requirements), alternative requirements applicable to the source during startup and shutdown should be narrowly tailored and take into account considerations such as the technological limitations of the specific source category and the control technology that is feasible during startup and shutdown. Accordingly, the EPA continues to recommend the seven specific criteria enumerated in section III.A of the Attachment to the 1999 SSM Guidance as appropriate considerations for SIP provisions that establish alternative emission limitations that apply to startup and shutdown. The EPA repeated those criteria in the February 2013 proposal as guidance to states for developing components of emission limitations that apply to sources during startup, shutdown or other specific modes of source operation to meet CAA requirements for SIP provisions.

Comments received on the February 2013 proposal suggested that the purpose of the recommended criteria may have been misunderstood by some commenters. The criteria were phrased in such a way that commenters may have misinterpreted them to be criteria to be applied by a state retrospectively (i.e., after the fact) to an individual instance of emissions from a source during an SSM period, in order to establish whether the source had exceeded the applicable emission limitation. This was not the intended purpose of the recommended criteria at the time of the 1999 SSM Guidance, nor is it the intended purpose now.

The EPA seeks to make clear in this document that the recommended criteria are intended as guidance to states developing SIP provisions that include emission limitations with alternative emission limitations applicable to specifically defined modes of source operation such as startup and shutdown. A state may choose to consider these criteria in developing such a SIP provision. The EPA will use these criteria when evaluating whether a particular alternative emission limitation component of an emission limitation meets CAA requirements for SIP provisions. Any SIP revision establishing an alternative emission limitation that applies during startup and shutdown would be subject to the same procedural and substantive review requirements as any other SIP submission.

Based on comment on the February 2013 proposal, the EPA is updating the criteria to make clear that they are recommendations relevant for development of appropriate alternative emission limitations in SIP provisions. Thus, in this document, the EPA is providing a restatement of its recommended criteria that reflects clarifying but not substantive changes to the text of those criteria. One clarifying change is removal of the word “must” from the criteria, to better convey that these are recommendations to states concerning how to develop an approvable SIP provision with alternative requirements applicable to Start Printed Page 33914startup and shutdown and to make clear that other approaches might also be consistent with the CAA in particular circumstances.

The clarified criteria for developing and evaluating alternative emission limitations applicable during startup and shutdown are as follows:

(1) The revision is limited to specific, narrowly defined source categories using specific control strategies (e.g., cogeneration facilities burning natural gas and using selective catalytic reduction);

(2) Use of the control strategy for this source category is technically infeasible during startup or shutdown periods;

(3) The alternative emission limitation requires that the frequency and duration of operation in startup or shutdown mode are minimized to the greatest extent practicable;

(4) As part of its justification of the SIP revision, the state analyzes the potential worst-case emissions that could occur during startup and shutdown based on the applicable alternative emission limitation;

(5) The alternative emission limitation requires that all possible steps are taken to minimize the impact of emissions during startup and shutdown on ambient air quality;

(6) The alternative emission limitation requires that, at all times, the facility is operated in a manner consistent with good practice for minimizing emissions and the source uses best efforts regarding planning, design, and operating procedures; and

(7) The alternative emission limitation requires that the owner or operator's actions during startup and shutdown periods are documented by properly signed, contemporaneous operating logs or other relevant evidence.

It may be appropriate for an air agency to establish alternative emission limitations that apply during modes of source operation other than during startup and shutdown, but any such alternative emission limitations should be developed using the same criteria that the EPA recommends for those applicable during startup and shutdown.

3. Response to Comments

The EPA received a number of comments, both supportive and adverse, concerning the issue of how air agencies may replace existing exemptions for emissions during SSM events with alternative emission limitations that apply during startup, shutdown or other normal modes of source operation. The majority of these comments were critical of the EPA's position but did not base this criticism on an interpretation of specific CAA provisions. For clarity and ease of discussion, the EPA is responding to these comments, grouped by issue, in this section of this document.

a. Comments that as a technical matter sources cannot meet emission limitations (or cannot be accurately monitored) during startup and shutdown.

Comment: Several commenters claimed that as a technical matter, SIP emission limitations cannot be met or that monitoring to ensure compliance with emission limitations cannot occur during startup and shutdown. Commenters raised “practical concerns” with the EPA's proposal as it applies to emissions during SSM at electric generating units (EGUs). The commenters claimed that it is incorrect to treat periods of startup and shutdown as part of “normal source operation” and claimed that it is fundamentally incorrect to characterize all periods of startup and shutdown as planned events. The commenters claimed that many air pollution control devices (APCDs) are subject to technical, operational or safety constraints that prevent use or optimization during startup and shutdown periods. The commenters requested the EPA to continue the practice of allowing states to provide “protection” from enforcement for excess emissions during startup and shutdown. The commenters claimed that the EPA's premise for this action is that startup and shutdown events are planned and sources should be able to meet limits applicable during these normal operations. The commenters asserted that the proposal does not recognize technical and operational limits and that it conflicts with the EPA's own acknowledgement in the proposal that there are sometimes technical, operational and safety limits that may prevent compliance with emission limitations during startup and shutdown. The commenters also noted that the type of equipment that a control device is attached to may affect the time it takes for a control device to reach optimization. Further, the commenters identified control technologies that cannot achieve reductions until specific temperatures are reached and other technologies that cannot be used during startup and/or shutdown because of technical limitations or safety concerns. Finally, the commenters noted that the geographical location and/or weather can have an effect on the operation of a source and control devices during startup and shutdown.

Commenters raised specific concerns regarding pollution controls for EGUs. The commenters claimed that startup and shutdown events are unavoidable at EGUs even though they may be planned. The commenters also attached appendices providing an explanation of why emissions are higher for startup and shutdown for certain types of EGUs. The commenters claimed that the “EPA's proposal to eliminate the States' SSM provisions, and prohibit them from adopting any provisions for startups and shutdowns, could force sources to comply with emission limitations during periods when they were never meant to apply, thus rendering those emissions limitations unachievable.” The commenters also noted that the permits for their sources all require that the sources minimize the magnitude and duration of emissions during SSM. The implication of this latter comment is that a general duty to minimize emissions is sufficient to justify the exemption of all emissions during SSM events in the underlying SIP provisions.

Response: Although intended as criticism of the EPA's proposed action, these comments in fact support the Agency's position that states should consider startup and shutdown events as they promulgate standards for specific industries or even for specific sources. The commenters seem to suggest that because some equipment or sources cannot during startup and shutdown meet the emission limits that apply during “regular” operation, no limit or standards should apply during startup and shutdown. The EPA disagrees. As the court in Sierra Club held, emission limitations must apply at “all times.” That is not to say that the emission limitation must impose the same numerical limitation or impose the same other control requirement at all times. As explained at length in section VII.A of this document, the EPA interprets the CAA to allow SIP emission limitations that may be a combination of numerical limitations, technological control measures and/or work practice requirements, so long as the resulting emission limitations are properly developed to meet CAA requirements and are legally and practically enforceable. As the commenters noted, the EPA does recognize that some control equipment cannot be operated at all or in the same manner during every mode of normal operations.

In its 1999 SSM Guidance, the EPA expressly recognized that an appropriate way for a state to address such technological limitations is to set alternative emission limitations that apply during periods of startup and shutdown as part of the SIP emission Start Printed Page 33915limitation.[252] In these cases the state should consider how the control equipment works in determining what standards should apply during startup and shutdown. In addition, as noted by commenters, such standards may vary based on location (e.g., standards in a hot and humid area may differ from those adopted for a cool and dry area). Some equipment during startup and shutdown may be unable to meet the same emission limitation that applies during steady-state operations and so alternative limitations for startup and shutdown may be appropriate.[253] However, for many sources, it should be feasible to meet the same emission limitation that applies during steady-state operations also during startup and shutdown.[254] These are issues for the state to consider in developing specific regulations as they revise the deficient SIP provisions identified in this action. The EPA emphasizes that the state has discretion to determine the best means by which to revise a deficient provision to eliminate an automatic or discretionary SSM exemption, so long as that revision is consistent with CAA requirements. The EPA will work with the states as they consider possible revisions to deficient provisions.

The EPA recognizes that a malfunction may cause a source to shut down in a manner different than in a planned shutdown, and in that case, such a shutdown would typically be considered part of the malfunction event. However, as part of the normal operation of a facility, sources typically will also have periodic or otherwise scheduled startup and shutdown of equipment, and steps to limit emissions during this type of event are or can be planned for. The EPA disagrees with the suggestion of commenters that because some startup or shutdown events may be unplanned, all startup and shutdown events should be exempt from compliance with any requirements. For those events that are planned, the state should be able to establish requirements to regulate emissions, such as a numerical limitation, technological control measure or work practice standard that will apply as a part of the revised emission limitation. When unplanned startup or shutdown events are part of a malfunction, they should be treated the same as a malfunction; however, as with malfunctions, startup and shutdown events cannot be exempted from compliance with SIP requirements. Questions of liability and remedy for violations that result from malfunctions are to be resolved in the context of an enforcement action, if such an action occurs.

b. Comments that it is impossible, unreasonable or impractical for states to develop emission limitations that apply during startup and shutdown to replace existing exemptions.

Comment: A number of commenters suggested that it will be difficult for states to develop emission limits that apply during startup and shutdown. One state commenter reasoned that alternative emission limits are applied to facilities in that state through individual permits on a case-by-case basis and claimed that there are 500 permitted facilities in the state. The commenter contended that “non-steady-state” limits would need to be set for startup and shutdown for all 500 permitted facilities and that such an effort would be “time, resource, and data intensive.” The state commenter further contended that it would be unreasonable to require the state to include such limits “for every source” in the SIP because “permit modifications would need to occur every time there is a new emission source, a source ceases to operate, or an emission-related regulation is changed.”

A local government commenter stated that to establish limits for startup and shutdown that also demonstrate compliance with the NSR regulations (including protection of the NAAQS and PSD increments and maintenance of BACT or LAER) would be a difficult, time-consuming task that was mostly impractical.

An industry commenter claimed that the EPA is encouraging states to adopt numerical alternative emission limitations in their SIP provisions that would apply during startup and shutdown. The commenter claimed that adequate and accurate emissions data are necessary to do so and that such information is not generally available for existing equipment or, in many cases, for new equipment. Furthermore, the commenter asserted, even if an emission limit could be established for startup and shutdown, there are no current approved test measures to verify compliance during such modes of operation. Even where data are available, the commenter alleged, the data may not be representative of actual conditions because of limitations related to low-load conditions. If a state lacks information to conclude that a limit can be met, the commenter argued, the state should not be required to establish numerical limits but should instead be allowed “to specify that numerical standards do not apply to those conditions or that those conditions are exempt, or should be allowed to establish work practice standards.”

Response: The comments of the state commenter seem to be based on the premise that all sources will be unable to meet otherwise applicable SIP emission limitations during periods of startup and shutdown. The EPA anticipates that many types of sources should be able during startup and shutdown to meet the same emission limitation that applies during full operation. Additionally, even where a specific type of operation may not during startup and/or shutdown be able to meet an emission limitation that applies during full operation, the state should be able to develop appropriate limitations that would apply to those types of operations at all similar types of facilities. The EPA believes that there will be limited, if any, cases where it may be necessary to develop source-specific emission requirements for startup and/or shutdown. In any event, this is a question that is best addressed by each state in the context of the revisions to the SIP provisions at issue in this action. To the extent that there are appropriate reasons to establish an emission limitation with alternative numerical, technological control and/or work practice requirements during startup or shutdown for certain categories of sources, this SIP call action provides the state with the opportunity to do so.

As to the commenter's concern that such alternative emission limitations should not be included in a state's SIP, the EPA disagrees. The SIP needs to reflect the control obligations of sources, and any revision or modification of those obligations should not be occurring through a separate process, such as a permit process, which would not ensure that “alternative” compliance options do not weaken the SIP. The SIP is a combination of state statutes, regulations and other requirements that the EPA approves for demonstrating attainment and maintenance of the NAAQS, protection of PSD increments, improvement of visibility and compliance with other Start Printed Page 33916CAA requirements. As discussed in section X.B of this document, any revisions to obligations in the SIP need to occur through the SIP revision process and must comply with sections 110(k)(3), 110(l) and 193 and any other applicable substantive requirements of the CAA.

As to concerns that a SIP revision will be necessary every time a new source comes into existence, an existing source is permanently retired or a new regulation is promulgated, the EPA does not see these as significant concerns. Unless the startup or shutdown process for an individual source is truly unique to that source, then existing SIP provisions for sources within the same industrial category should be able to apply to any new source. Moreover, assuming any new source is subject to permitting obligations, then any applicable startup and shutdown issues should already be resolved in developing the permit for such source. The state could choose to incorporate that permit by reference into the SIP at the time it next modifies its SIP. Further, assuming that there is a source-specific regulation for a source in the SIP (a circumstance that the EPA believes would occur only rarely), the state is not obligated to remove such provision when the source is retired. Rather, the state could leave the provision in its rules or remove such a provision the next time it submits another SIP revision or when it chooses to do a “cleanup” of the SIP, an activity that numerous states have taken from time to time. Finally, whenever a new regulation is promulgated is precisely the time that a state should be considering the appropriate provisions that would apply during startup and shutdown, as that is the time when the state is considering what is necessary to comply with the CAA and what is necessary to meet attainment, maintenance or other requirements of the CAA.

The local government commenter contended that establishing limits for startup and shutdown that also demonstrate compliance with the NSR regulations (including protection of the NAAQS and PSD increments and imposition of BACT- or LAER-level controls) would be a difficult, time-consuming task that was impractical. The commenter did not provide an explanation of how this would be difficult. The implication of the comment is that a SIP provision that provides an exemption or an affirmative defense for emissions during startup and shutdown would be compliant with the statutory requirements and NSR regulations (including attainment of the NAAQS and protecting PSD increments). That is incorrect because the EPA does not interpret the CAA to allow such exemptions or affirmative defenses for purposes of NSR regulations. The suggestion that a SIP provision that does not regulate emissions during startup and shutdown would be more likely to address NAAQS attainment and to protect PSD increments than would a SIP provision that does regulate such emissions is illogical. The EPA further notes that the Agency's interpretation of the CAA, explicitly set forth in a 1993 guidance document, has been that periods of startup and shutdown must be addressed in any new source permit.[255] Moreover, the EPA explained in the February 2013 proposal, in the SNPR and in the background memorandum accompanying the February 2013 proposal concerning the legal basis for this action why exemptions and affirmative defenses applicable to emissions during SSM events are not consistent with CAA requirements for SIP provisions.

c. Comments that the EPA should “authorize” states to replace SSM exemptions with “work practice” standards developed by the EPA in its own recent NESHAP and NSPS rules.

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

Response: The EPA agrees that states may adopt work practice standards to address periods of startup and shutdown as a component of a SIP emission limitation that applies continuously. Adoption of work practice standards from a NESHAP or NSPS as a component of an emission limitation to satisfy SIP requirements is addressed in this document not as a requirement or even as a recommendation but rather as an approach that a state may use at its option. The EPA cannot foretell the extent to which this optional approach of adopting other existing standards to satisfy SIP requirements may benefit an individual state. For a state choosing to use this approach, such work practice standards must meet the otherwise applicable CAA requirements (e.g., be a RACT-level control for the source as part of an attainment plan requirement) and the necessary parameters to make it legally and practically enforceable (e.g., have adequate recordkeeping, reporting and/or monitoring requirements to assure compliance). However, it cannot automatically be assumed that emission limitation requirements in recent NESHAP and NSPS are appropriate for all sources regulated by SIPs. The universe of sources regulated under the federal NSPS and NESHAP programs is not identical to the universe of sources regulated by states for purposes of the NAAQS. Moreover, the pollutants regulated under the NESHAP (i.e., HAPs) are in many cases different than those that would be regulated for purposes of attaining and maintaining the NAAQS, protecting PSD increments, improving visibility and meeting other CAA requirements.[257] Thus, the EPA cannot say as a matter of law that those federal regulations establish emission limitation requirements appropriate for all of the sources that states are regulating in their SIPs or for the purpose for which they are being regulated. The EPA believes, however, that those federal regulations and the technical materials in the public record for those rules may provide assistance for states as they develop and consider regulations for sources in their states and may be appropriate for adoption by the state in certain circumstances. In particular, the NSPS regulations should provide very relevant information for sources of the same type, size and control equipment type, even if the sources were not constructed or modified within a date range that would make them subject to the NSPS. The EPA therefore encourages states to explore these approaches, as well as any other relevant information available, in Start Printed Page 33917determining what is appropriate for revised SIP provisions.

d. Comments that if states remove existing SSM exemptions and replace them with alternative emission limitations that apply during startup and shutdown events, this would automatically be consistent with the requirements of CAA section 193.

Comment: Commenters stated that section 193 was included in the CAA to prohibit states from modifying regulations in place prior to November 15, 1990, unless the modification ensures equivalent or greater reductions of the pollutant. The commenters asserted that to the extent a state replaces “general excess emissions exclusions and/or affirmative defense provisions” such amendments would per se be more stringent than the provisions they replace. The commenters also contended that any replacement SIP provision that spells out more clearly how a source will operate ensures equivalent or greater emission reductions. The commenters urged the EPA to clarify that any revisions pursuant to a final SIP call would not be considered “backsliding.”

Response: The EPA agrees with the commenters that any SIP submission made by a state in response to this SIP call action will need to comply with the requirements of section 193 of the CAA, if that section applies to the SIP provision at issue. In addition, such SIP provision will also need to comply with section 110(l), which requires that SIP revisions do not interfere with attainment, reasonable progress or any other applicable requirement of the CAA. However, it is premature to draw the conclusion that any SIP revision made by a state in response to this SIP call will automatically meet the requirements of section 110(l) and section 193. Such a conclusion could only be made in the context of reviewing the actual SIP revision. The EPA will address this issue, for each SIP revision in response to this SIP call action, at the time that it proposes and finalizes action on the SIP revision, and any comments on this issue can be raised during those individual rulemaking actions. The EPA provides additional guidance to states on the analysis needed to comply with section 110(l) and section 193 in section X.B of this document.

C. Director's Discretion Provisions Pertaining to SSM Events

1. What the EPA Proposed

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

2. What Is Being Finalized in This Action

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

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

As explained in detail in the February 2013 proposal and in section VII.C of this document, the EPA interprets the CAA to prohibit SIP provisions that include unlimited director's discretion to alter the SIP emission limitations applicable to sources, including those that operate to allow exemptions for emissions from sources during SSM events. The EPA believes that such provisions that operate to authorize total exemptions from emission limitations on an ad hoc basis are especially problematic. Given that the EPA interprets section 110(a)(2)(A) and section 302(k) to preclude exemptions for emissions during SSM events in emission limitations in the first instance, it is also impermissible for states to have SIP provisions that authorize such exemptions on an ad hoc basis. These provisions functionally allow the air agency to impose its own enforcement discretion decisions on the EPA and other parties by granting exemptions for emissions that should be treated as violations of the applicable SIP emission limitations. Provisions that functionally allow such exemptions are also inconsistent with requirements of the CAA related to enforcement Start Printed Page 33918including: (i) The general requirements of section 110(a)(1) that SIPs provide for enforcement; (ii) the section 110(a)(2)(A) requirement that the specific emission limitations and other contents of SIPs be enforceable; and (iii) the section 110(a)(2)(C) requirement that SIPs contain a program to provide for enforcement. Moreover, these provisions operate to interfere with the enforcement structure of the CAA provided in section 113 and section 304, through which the EPA and other parties have authority to seek enforcement for violations of CAA requirements, including SIP emission limitations.

There are two ways in which such a provision can be consistent with CAA requirements: (1) When the exercise of director's discretion by the state agency to alter or eliminate the SIP emission limitation can have no effect for purposes of federal law unless and until the EPA ratifies that state action with a SIP revision; or (2) when the director's discretion authority is adequately bounded such that the EPA can ascertain in advance, at the time of approving the SIP provision, how the exercise of that discretion to alter the SIP emission limitations for a source could affect compliance with other CAA requirements. If the provision includes director's discretion that could result in violation of any other CAA requirement for SIPs, then the EPA cannot approve the provision consistent with the requirements of section 110(k)(3) and section 110(l). For example, a director's discretion provision that authorizes state personnel to excuse source compliance with SIP emission limitations during SSM events could not be approved because the provision would run afoul of the requirement that sources be subject to emission limitations that apply continuously, consistent with section 302(k).

3. Response to Comments

The EPA received a number of comments, both supportive and adverse, concerning the issue of director's discretion provisions in SIPs. The majority of these comments were critical of the EPA's position but did not base this criticism on an interpretation of specific CAA provisions. For clarity and ease of discussion, the EPA is responding to these comments, grouped by issue, in this section of this document.

a. Comments that broad state discretion in how to develop SIP provisions includes the authority to create provisions that include director's discretion variances or exemptions for excess emission during SSM events.

Comment: A number of state and industry commenters argued that because states have great discretion when developing SIP provisions in general, this necessarily includes the ability to create director's discretion provisions in SIPs that authorize state personnel to grant unilateral variances or exemptions for emissions during SSM events. According to commenters, the overarching principle of “cooperative federalism” and court decisions concerning the division of regulatory responsibilities between the states and the EPA support their view that states can create SIP provisions that provide authority to alter the SIP emission limitations or other requirements via director's discretion provisions without restriction.

Response: The EPA disagrees with the commenters' view that director's discretion provisions in SIPs are per se permissible because of the principles of cooperative federalism. As explained in more detail in section V.D.2 of this document, states and the EPA each have authorities and responsibilities under the CAA. With respect to SIPs, under section 107(a) the states have primary responsibility for assuring attainment of the NAAQS within their borders. Under section 110(a) the states have a statutory duty to develop and submit a SIP that provides for the attainment, maintenance and enforcement of the NAAQS, as well as meeting many other CAA requirements and objectives. The specific procedural and substantive requirements that states must meet for SIPs are set forth in section 110(a)(1) and section 110(a)(2) and in other more specific requirements throughout the CAA (e.g., the attainment plan requirements for each of the NAAQS as specified in part D). By contrast, the EPA has its own statutory authorities and responsibilities, including the obligation to review new SIP submissions for compliance with CAA procedural and substantive requirements pursuant to sections 110(k)(3), 110(l) and 193. In addition, the EPA has authority to assure that previously approved SIP provisions continue to meet CAA requirements, whether through the SIP call authority of section 110(k)(5) or the error correction authority of section 110(k)(6).

As the EPA explained in detail in the February 2013 proposal, SIP provisions that include unbounded director's discretion to alter the otherwise applicable emission limitations are inconsistent with CAA requirements. Such provisions purport to authorize air agency personnel unilaterally to change or to eliminate the applicable SIP emission limitations for a source without meeting the requirements for a SIP revision. Pursuant to the EPA's own responsibilities under sections 110(k)(3), 110(l) and 193 and any other CAA provision substantively germane to the specific SIP provision at issue, it would be inappropriate for the Agency to approve a SIP provision that automatically preauthorized the state unilaterally to revise the SIP emission limitation without meeting the applicable procedural and substantive statutory requirements for a SIP revision. Section 110(i) prohibits modification of SIP requirements for stationary sources by either the state or the EPA, except through specified processes. The EPA's implementing regulations applicable to SIP provisions likewise impose requirements for a specific process for the approval of SIP revisions.[262] In addition, section 116 explicitly prohibits a state from adopting or enforcing regulations for sources that are less stringent than what is required by the emission limitations in its SIP, i.e., the emission limitation previously approved by the EPA as meeting the requirements of the CAA applicable to that specific SIP provision. It is a fundamental tenet of the CAA that states cannot unilaterally change SIP provisions, including the emission limitations within SIP provisions, without the EPA's approval of the change through the appropriate process. This core principle has been recognized by multiple courts.[263]

b. Comments that director's discretion provisions are an exercise of “enforcement discretion.”

Comment: Several state and industry commenters asserted that the EPA was wrong to interpret the CAA to preclude director's discretion provisions, because such provisions are merely an exercise of a state's traditional “enforcement discretion.”

Response: The EPA disagrees that a director's discretion provision in a SIP is a valid exercise of enforcement discretion. Normally, the concept of enforcement discretion is understood to mean that a regulator has discretion to determine whether a specific violation Start Printed Page 33919of the law by a source warrants enforcement and to determine the nature of the remedy to seek for any such violation. The EPA of course agrees that states have enforcement discretion of this type and that the states may exercise such enforcement discretion as they see fit, as does the Agency itself. However, the EPA does not agree that air agencies may create SIP provisions that operate to eliminate the ability of the EPA or citizens to enforce the emission limitations of the SIP. The EPA stated clearly in the 1999 SSM Guidance that it would not approve SIP provisions that “would enable a State director's decision to bar EPA's or citizens' ability to enforce applicable requirements.” [264] The Agency explained at that time that such an approach is inconsistent with the requirements of the CAA applicable to the enforcement of SIPs.

The commenters' argument was that states may create SIP provisions through which they may unilaterally decide that the emissions from a source during an SSM event should be exempted, such that the emissions cannot be treated as a violation by anyone. A common formulation of such a provision provides only that the source needs to notify the state regulatory agency that an exceedance of the emission limitations occurred and to report that the emissions were the result of an SSM event. If those minimal steps occur, then such provisions commonly authorize state personnel to make an administrative decision that the emissions in question were not a “violation” of the applicable emission limitation. It may be entirely appropriate for the state agency to elect not to bring an enforcement action based on the facts and circumstances of a given SSM event, as a legitimate exercise of its own enforcement discretion. However, by creating a SIP provision that in effect authorizes the state agency to alter or suspend the otherwise applicable SIP emission limitations unilaterally through the granting of exemptions, the state agency would functionally be revising the SIP with respect to the emission limitations on the source. This revision of the applicable emission limitation would have occurred without satisfying the requirements of the CAA for a SIP revision. As a result of this ad hoc revision of the SIP emission limitation, the EPA and other parties would be denied the ability to exercise their own enforcement discretion. This is contrary to the fundamental enforcement structure of the CAA, as provided in section 113 and section 304, through which the EPA and other parties are authorized to bring enforcement actions for violations of SIP emission limitations. The state's decision not to exercise its own enforcement discretion cannot be a basis on which to eliminate the legal rights of the EPA and other parties to seek to enforce.

The commenters also suggested that the director's discretion provisions authorizing exemptions for SSM events are nonsegregable parts of the emission limitations, i.e., that states have established the numerical limitations at overly stringent levels specifically in reliance on the existence of exemptions for any emissions during SSM events. Although commenters did not provide facts to support the claims that states set more stringent emission limitations in reliance on SSM exemptions, in general or with respect to any specific emission limitation, the EPA acknowledges that this could possibly have been the case in some instances. Even if a state had taken this approach, however, it does not follow that SIP provisions containing exemptions for SSM events are legally permissible. Emission limitations in SIPs must be continuous. When a state takes action in response to this SIP call to eliminate the director's discretion provisions or otherwise to revise them, the state may elect to overhaul the emission limitation entirely in order to address this concern. So long as the resulting revised SIP emission limitation is continuous and meets the requirements of sections 110(k)(3), 110(l) and 193 and any other sections that are germane to the type of SIP provision at issue, the state has discretion to revise the provision as it determines best.

c. Comments that the EPA's having previously approved a SIP provision that authorizes the granting of variances or exemptions for SSM events through the exercise of director's discretion renders the provision consistent with CAA requirements.

Comment: Several state and industry commenters argued that the EPA's past approval of a SIP provision with a director's discretion feature automatically means that the exercise of that authority (whether to revise the applicable SIP emission limitations unilaterally or to grant ad hoc exemptions from SIP emission limitations) is valid under the CAA. One commenter asserted that because the EPA has previously approved such a provision, “that discretion is itself part of the SIP, and the exercise of discretion in no way modifies SIP requirements.” Another commenter argued that director's discretion provisions in SIPs are per se valid because “[a]ll of the SIP provisions went through a public procedure at the time of their initial SIP approval.”

Response: First, the EPA disagrees with the theory that a SIP provision that includes director's discretion authority for state personnel to modify or grant exemptions from SIP emission limitations unilaterally is valid merely by virtue of the fact that the Agency previously approved it. By definition, when the EPA makes a finding of substantial inadequacy and issues a SIP call, that signifies that the Agency previously approved a SIP provision that does not meet CAA requirements, whether that deficiency existed at the time of the original approval or arose later. The EPA has explicit authority under section 110(k)(5) to require that a state eliminate or revise a SIP provision that the Agency previously approved, whenever the EPA finds an existing SIP provision to be substantially inadequate to meet CAA requirements. The fact that the EPA previously approved it does not mean that a deficient provision may remain in the SIP forever once the Agency determines that it is deficient.

Second, the EPA disagrees that the fact that a SIP provision underwent public process at the time of its original creation by the state, or at the time of its approval by EPA as part of the SIP, means per se that the provision is consistent with CAA requirements. If an existing SIP provision is deficient because it in effect allows a state to revise existing SIP emission limitations without meeting the many explicit statutory requirements for a SIP revision, the fact that the revision that created the impermissible provision itself met the proper procedural requirements for a SIP revision is irrelevant. Even perfect compliance with the procedural requirements for a SIP revision at the time of its development by the state or its approval by the EPA does not override a substantive deficiency in the provision, nor does it preclude the later issuance of a SIP call to correct a substantive deficiency.

Third, the EPA disagrees with the circular logic that because a deficient provision with director's discretion currently exists in a SIP, it means that exercise of the director's discretion to grant variances or outright exemptions to sources for emissions during SSM events is therefore consistent with CAA requirements for SIPs. An unbounded director's discretion provision that authorizes an air agency to alter or eliminate the otherwise applicable SIP emission limitation functionally allows the state to revise the SIP emission Start Printed Page 33920limitation without meeting the requirements for a SIP revision. In particular, when such provisions authorize state personnel to grant outright exemptions from the SIP emission limitations, this is tantamount to a revision of the SIP emission limitation without complying with the procedural and substantive requirements of the CAA applicable to SIP revisions, including section 110(l), section 193 and any other substantive requirements applicable to the particular SIP emission limitation in question.

d. Comments that director's discretion provisions in SIPs are not prohibited by the CAA, based on recent judicial decisions.

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

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

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

The EPA believes that the court's decision in the Luminant director's discretion case is distinguishable on several important grounds. Most importantly, the court rejected the EPA's disapproval of the SIP submission because the Agency had not provided an adequate explanation of why the director's discretion provision at issue was inconsistent with the requirements of the CAA for SIP provisions. The court emphasized the absence of any explanation in the administrative record for the proposed or final actions that Start Printed Page 33921explained which specific provisions of the CAA preclude such a provision and why. In the February 2013 proposal and in this document, the EPA has identified and explained the specific CAA provisions that operate to preclude unbounded director's discretion provisions in SIPs.

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

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

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

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

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

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

Third, the Texas court emphasized that, notwithstanding the apparent flexibility that the director's discretion provision provided to the state agency with respect to deciding on the level of monitoring, recordkeeping and reporting to be imposed on each source by permit, the state's regulations explicitly prohibited relaxations of the level of control. The court gave weight to the explicit wording of the specific provision at issue in the case which provided that “[t]he existing level of control may not be lessened for any facility.” [278] The EPA does not agree that the specific requirements for monitoring, recordkeeping and reporting for a given source are unrelated to the level of control. In any event, the director's discretion provisions of the type at issue in this Start Printed Page 33922action are not limited to those that would not “lessen” the level of control. To the contrary, the provisions at issue in this SIP call action authorize state agency personnel to grant outright exemptions from otherwise applicable SIP emission limitations during SSM events. Thus, the EPA concludes that this portion of the reasoning of the Texas decision would not apply to the current action.

Finally, the Texas court viewed the fact that the EPA had previously approved similar director's discretion provisions in Texas and in Georgia as evidence that such provisions must be consistent with CAA requirements. The EPA acknowledges that it has, from time to time, approved SIP submissions that it should not have, whether through failure to recognize an issue, through a misunderstanding of the facts, through a mistaken interpretation of the law or as a result of other such circumstances. Congress itself clearly recognized that the EPA may occasionally take incorrect action on SIP submissions, whether incorrect at the time of the action or as a result of later events. Section 110(k)(5) and section 110(k)(6) both provide the EPA with explicit authority to address past approvals of SIP submissions that turn out to have been mistakes, whether at the time of the original approval or as a result of later developments. The fact that the EPA has explicit authority to issue a SIP call establishes that Congress anticipated that the Agency may at some point approve a SIP provision that it should not have approved because the provision is substantially inadequate to meet CAA requirements. The EPA does not agree, however, that its approval of a comparable SIP provision at some time in the past negates the Agency's authority to disapprove a current SIP submission that fails to meet applicable procedural or substantive requirements. A challenger of the disapproval can always argue that the inconsistency between the prior approval and the later disapproval is evidence that the EPA is being arbitrary and capricious in its interpretation of the statute—but at bottom the correct question is whether the Agency is correctly interpreting the CAA in the disapproval action currently being challenged. The fact that the EPA may have approved another SIP submission with a comparable defect in the past does not override the requirements of the CAA.

Significantly, the commenters apparently make the same mistake as the EPA did in the rulemakings at issue in the cited court decisions, by not adequately addressing the relevant statutory provisions that apply to SIP provisions in general and apply to revisions of existing EPA-approved SIP provisions in particular. The commenters failed to consider the core problem with unbounded director's discretion provisions (i.e., that such provisions allow for unilateral revision, relaxation or exemption from SIP emission limitations, without adequate evaluation by the EPA and the public). As a result, the commenters do not address the proper application of CAA provisions that govern SIP revisions and the rationale for requiring that such SIP revisions be reviewed by the EPA in accordance with the explicit requirements of sections 110(k)(3), 110(l) and 193 and the other requirements germane to the SIP provision at issue (e.g., RACT-level controls for sources located in nonattainment areas). Indeed, the commenters did not acknowledge the inherent problem with director's discretion provisions, which is that such provisions have the potential to undermine SIP emission limitations dramatically through ad hoc exemptions for excess emissions during SSM events. By allowing for exemptions for emissions during SSM events, these provisions also remove the incentives for sources to be properly designed, maintained and operated so that they will comply continuously with SIP emission limitations during all modes of source operation.

The EPA notes that the commenters did not acknowledge or address the specific explanation that the Agency provided in the February 2013 proposal, including the EPA's identification of the specific statutory provisions applicable to the revision of SIP provisions. Because these commenters did not address the EPA's explanation of the CAA provisions that it interprets to preclude director's discretion provisions in SIPs, the commenters have not provided substantive comment concerning the EPA's interpretation of the CAA on this issue. The commenters did not dispute the EPA's interpretation of the CAA on this particular point on statutory grounds. Rather, the commenters argued based on their own policy preferences for an approach to director's discretion provisions that would allow sources to receive ad hoc exemptions for excess emissions during SSM events without the need for imposition of an appropriate alternative SIP emission limitation, for adequate public process for development of such an alternative SIP emission limitation or for oversight by the EPA of any revision to the applicable SIP emission limitations as required by the CAA.

e. Comments opposed to the EPA's approach on the premise that there is no “director's discretion” concern if the SIP provision creates a permit program through which state officials grant sources variances or exemptions from otherwise applicable SIP provisions.

Comment: State commenters argued that they have imposed sufficient boundaries on the exercise of director's discretion provisions in their SIPs, by virtue of the fact that they grant sources variances or exemptions from SIP emission limitations through a permitting program. Commenters stated that their permitting program provides a more structured process and an opportunity for public input into the decisions concerning variances or exemptions. Moreover, they argued that state law does provide preconditions to the granting of variances or exemptions and thus these are not granted automatically. Based upon these procedural requirements, the commenters contended that their exercise of director's discretion is not “unbounded” as the EPA suggested in the February 2013 proposal.

Response: The EPA acknowledges that a permitting program can provide a more structured and consistent process than may be provided in a SIP for granting variances and exemptions from SIP emission limitations and related requirements and may provide more opportunity for public participation in those decisions. However, to the extent that the end result of this permitting process is that a given source is given a less stringent emission limitation than the otherwise applicable SIP emission limitation or is given an outright exemption from the SIP emission limitation, this result still functionally constitutes a revision of the SIP emission limitation without meeting the statutory requirements for a SIP revision. The EPA is not authorized to approve a program that in essence allows a SIP revision without compliance with the applicable statutory requirements in sections 110(k)(3), 110(l) and 193 and any other provision that is germane to the particular SIP emission limitation at issue.

The EPA emphasizes that air agencies always retain the ability to regulate sources more stringently than required by the provisions in its SIP. Section 116 explicitly provides, with certain limited exceptions, that states retain the authority to regulate emissions from sources. Unless preempted from controlling a particular source, nothing precludes states from regulating sources more stringently than otherwise required to meet CAA requirements, so long as they meet CAA requirements. However, if there is an applicable Start Printed Page 33923emission limitation in a SIP provision (or an EPA regulation promulgated pursuant to sections 111 or 112), section 116 explicitly stipulates, “such State or political subdivision may not adopt or enforce any emission standard or emission limitation which is less stringent than the standard or limitation under such plan or limitation.” Thus, a state could elect to regulate a source more stringently than required by a specific SIP emission limitation (e.g., by imposing a more stringent numerical emission limitation on a particular source or by imposing additional recordkeeping, reporting and monitoring requirements in addition to those of the SIP provision), but the state cannot weaken or eliminate the SIP emission limitation (e.g., by granting exemptions from applicable SIP emission limitations for emissions during SSM events). If a state elects to alter an emission limitation in a SIP provision, the state must do so in accordance with the statutory provisions applicable to SIP revisions.

Finally, the EPA notes, if a state elects to use a permitting process as a source-by-source means of imposing more stringent emission limitations or additional requirements on sources, doing so can be an acceptable approach. So long as the underlying SIP provisions are adequate to provide the requisite level of control or requirements to assure enforceability, a state is free to use a permitting program to impose additional requirements above and beyond those provided in the SIP.

D. Enforcement Discretion Provisions Pertaining to SSM Events

1. What the EPA Proposed

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

2. What Is Being Finalized in This Action

In order to be clear about this important point on a going-forward basis, the EPA is reiterating that SIP provisions cannot contain enforcement discretion provisions that would bar enforcement by the EPA or citizens for any violation of SIP requirements if the state elects not to enforce.

The EPA has previously issued a SIP call to a state specifically for purposes of clarifying an existing SIP provision to assure that regulated entities, regulators and courts will not misunderstand the correct interpretation of the provision.[280] As the EPA stated in that action:

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

The EPA has explained in previous iterations of its SSM Policy that a fundamental principle of the CAA with respect to SIP provisions is that the provisions must be enforceable not only by the state but also by the EPA and others pursuant to the citizen suit authority of section 304. Accordingly, the EPA has long stated that SIP provisions cannot be structured such that a decision by the state not to enforce may bar enforcement by the EPA or other parties.

3. Response to Comments

The EPA received a small number of comments concerning the issue of ambiguous enforcement discretion provisions in SIPs. For clarity and ease of discussion, the EPA is responding to these comments, grouped by issue, in this section of this document.

a. Comments that supported the clarification of ambiguous enforcement discretion provisions in general but opposed the EPA's views with respect to specific SIP provisions.

Comment: Environmental group commenters disagreed with the EPA's proposed denial of the Petition with respect to specific enforcement discretion provisions in the SIPs of several states. The commenters contended that the SIP provisions are too ambiguous for courts to recognize that the exercise of enforcement discretion by state personnel did not preclude enforcement by the EPA or others.

Response: The EPA disagrees with these comments. In the February 2013 proposal, the EPA explained how it reads the specific enforcement discretion provisions in the SIPs of each of these states. The EPA explained its evaluation of these provisions in detail. In comments submitted on the February 2013 proposal, the states in question agreed with the EPA's reading of the provisions. Each state agreed that these provisions only applied to air agency personnel and not to the EPA or any other party. Thus, the EPA believes that there should be no dispute about the proper interpretation of these SIP provisions in any potential future enforcement action.

b. Comments that opposed the EPA's issuing SIP calls to obtain state agency clarification of ambiguous enforcement discretion provisions in SIPs.

Comment: One commenter asserted that requiring states to correct an ambiguous “enforcement discretion” provision in its SIP in order to eliminate “perceived ambiguity” is a “waste of resources.” Although agreeing that a state's exercise of enforcement discretion cannot affect enforcement by the EPA or other parties under the citizen suit provision, the commenter believed that the existence of ambiguous provisions that could be misconstrued by a court to bar enforcement by the EPA or others if the state elects not to enforce is not a significant concern.

Response: The EPA agrees with the commenter that a state's legitimate exercise of enforcement discretion not to enforce in the event of violations of SIP provisions should have no bearing whatsoever on whether the EPA or others may seek to enforce for the same violations. However, the Agency disagrees with the commenter concerning whether some SIP provisions need to be clarified in order to assure that this principle is adhered to in practice in enforcement actions. For example, if on the face of an approved SIP provision the state Start Printed Page 33924appears to have the unilateral authority to decide that a specific event is not a “violation” or if it otherwise appears that if the state elects not to pursue enforcement for such violation then no other party may do so, then that SIP provision fails to meet fundamental legal requirements for enforcement under the CAA. If the SIP provision appears to provide that the decision of the state not to enforce for an exceedance of the SIP emission limit bars the EPA or others from bringing an enforcement action, then that is an impermissible imposition of the state's enforcement discretion decisions on other parties. The EPA has previously issued a SIP call to resolve just such an ambiguity, and its authority to do so has been upheld.[282] Given that the commenter agrees with the underlying principle that a state's exercise of enforcement discretion should have no bearing on the exercise of enforcement authority of the EPA or citizens, the Agency presumes that the commenter would not in fact oppose a SIP revision to clarify that point. Moreover, the commenter would not be harmed by such a SIP revision and would have no basis upon which to challenge it. As the clarification of the ambiguous SIP provision should be in the interest of all involved, including the regulated entities, the regulators and the public, the EPA does not believe that resources used to eliminate such ambiguities would be wasted.

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

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

F. Relationship Between SIP Provisions and Title V Regulations

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

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

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

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

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

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

As in the 2001 SSM Guidance, the EPA is endeavoring to be particularly clear about the intended effect of its final action on the Petition, of its clarifications and revisions to the SSM Policy and of its application of the updated SSM Policy to the specific existing SIP provisions discussed in section IX of this document.

First, the EPA only intends its actions on the larger policy or legal issues raised by the Petitioner to inform the public of the EPA's current views on the requirements of the CAA with respect to SIP provisions related to SSM events. Thus, for example, the EPA's proposed grant of the Petitioner's request that the EPA interpret the CAA to disallow all affirmative defense provisions is intended to convey that the EPA has Start Printed Page 33925changed its views about such provisions and that its prior views expressed in the 1999 SSM Guidance and related rulemakings on SIP submissions were incorrect. In this fashion, the EPA's action on the Petition provides updated guidance relevant to future SIP actions.

Second, the EPA only intends its actions on the specific existing SIP provisions identified in the Petition to be applicable to those provisions. The EPA does not intend its action on those specific provisions to alter the current status of any other existing SIP provisions relating to SSM events. The EPA must take later rulemaking actions, if necessary, in order to evaluate any comparable deficiencies in other existing SIP provisions that may be inconsistent with the requirements of the CAA. Again, however, the EPA's actions on the Petition provide updated guidance on the types of SIP provisions that it believes would be consistent with CAA requirements in future rulemaking actions.

Third, the EPA does not intend its action on the Petition to affect immediately any existing permit terms or conditions regarding excess emissions during SSM events that reflect previously approved SIP provisions. The EPA's finding of substantial inadequacy and a SIP call for a given state provides the state time to revise its SIP in response to the SIP call through the necessary state and federal administrative process. Thereafter, any needed revisions to existing permits will be accomplished in the ordinary course as the state issues new permits or reviews and revises existing permits. The EPA does not intend the issuance of a SIP call to have automatic impacts on the terms of any existing permit.

Fourth, the EPA does not intend its action on the Petition to alter the emergency defense provisions at 40 CFR 70.6(g) and 40 CFR 71.6(g), i.e., the title V regulations pertaining to “emergency provisions” permissible in title V operating permits. The EPA's regulations applicable to title V operating permits may only be changed through appropriate rulemaking procedures and existing permit terms may only be changed through established permitting processes.

Fifth, the EPA does not intend its interpretations of the requirements of the CAA in this action on the Petition to be legally dispositive with respect to any particular current enforcement proceedings in which a violation of SIP emission limitations is alleged to have occurred. The EPA handles enforcement matters by assessing each situation, on a case-by-case basis, to determine the appropriate response and resolution. For purposes of alleged violations of SIP provisions, however, the terms of the applicable SIP provision will continue to govern until that provision is revised following the appropriate process for SIP revisions, as required by the CAA.

Finally, the EPA does intend this final action, developed through notice and comment, to be the statement of its most current SSM Policy, reflecting the EPA's interpretation of CAA requirements applicable to SIP provisions related to excess emissions during SSM events. In this regard, the EPA is adding to and clarifying its prior statements in the 1999 SSM Guidance and making the specific changes to that guidance as discussed in this action. Thus, this final notice for this action will constitute the EPA's SSM Policy on a going-forward basis.

VIII. Legal Authority, Process and Timing for SIP Calls

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

1. General Statutory Authority

The CAA provides a mechanism for the correction of flawed SIPs, under CAA section 110(k)(5), which provides that “[w]henever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant national ambient air quality standards, to mitigate adequately the interstate pollutant transport described in section [176A] of this title or section [184] of this title, or to otherwise comply with any requirement of [the Act], the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions.”

By its explicit terms, this provision authorizes the EPA to find that a state's existing SIP is “substantially inadequate” to meet CAA requirements and, based on that finding, to “require the State to revise the [SIP] as necessary to correct such inadequacies.” This type of action is commonly referred to as a “SIP call.” [289]

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

It is also important to emphasize that CAA section 110(k)(5) expressly directs the EPA to take action if the SIP provision is substantially inadequate, not just for purposes of attainment or maintenance of the NAAQS but also for purposes of “any requirement” of the CAA. The EPA interprets this reference to “any requirement” of the CAA on its face to authorize reevaluation of an existing SIP provision for compliance with those statutory and regulatory requirements that are germane to the SIP provision at issue. Thus, for example, a SIP provision that is intended to be an “emission limitation” for purposes of a nonattainment plan for purposes of the 1997 PM2.5 NAAQS must meet various applicable statutory and regulatory requirements, including requirements of CAA section 110(a)(2)(A) such as enforceability, the definition of the term “emission limitation” in CAA section 302(k), the level of emissions control Start Printed Page 33926required to constitute a “reasonably available control measure” in CAA section 172(c)(1) and the other applicable statutory requirements for the implementation of the 1997 PM2.5 NAAQS. Failure to meet any of those applicable requirements could constitute a substantial inadequacy suitable for a SIP call, depending upon the facts and circumstances. By contrast, that same SIP provision should not be expected to meet specifications of the CAA that are completely irrelevant for its intended purpose, such as the unrelated requirement of CAA section 110(a)(2)(G) that the state have general legal authority comparable to CAA section 303 for emergencies.

Use of the term “any requirement” in CAA section 110(k)(5) also reflects the fact that SIP provisions could be substantially inadequate for widely differing reasons. One provision might be substantially inadequate because it fails to prohibit emissions that contribute to violations of the NAAQS in downwind areas many states away. Another provision, or even the same provision, could be substantially inadequate because it also infringes on the legal right of members of the public who live adjacent to the source to enforce the SIP. Thus, the EPA has previously interpreted CAA section 110(k)(5) to authorize a SIP call to rectify SIP inadequacies of various kinds, both broad and narrow in terms of the scope of the SIP revisions required.[291] On its face, CAA section 110(k)(5) authorizes the EPA to take action with respect to SIP provisions that are substantially inadequate to meet any CAA requirements, including requirements relevant to the proper treatment of excess emissions during SSM events.

An important baseline question is whether a given deficiency renders the SIP provision “substantially inadequate.” The EPA notes that the term “substantially inadequate” is not defined in the CAA. Moreover, CAA section 110(k)(5) does not specify a particular form of analysis or methodology that the EPA must use to evaluate SIP provisions for substantial inadequacy. Thus, under Chevron step 2, the EPA is authorized to interpret this provision reasonably, consistent with the provisions of the CAA. In addition, the EPA is authorized to exercise its discretion in applying this provision to determine whether a given SIP provision is substantially inadequate. To the extent that the term “substantially inadequate” is ambiguous, the EPA believes that it is reasonable to interpret the term in light of the specific purposes for which the SIP provision at issue is required, and thus whether the provision meets the fundamental CAA requirements applicable to such a provision.

The EPA does not interpret CAA section 110(k)(5) to require a showing that the effect of a SIP provision that is facially inconsistent with CAA requirements is causally connected to a particular adverse impact. For example, the plain language of CAA section 110(k)(5) does not require direct causal evidence that excess emissions have occurred during a specific malfunction at a specific source and have literally caused a violation of the NAAQS in order to conclude that the SIP provision is substantially inadequate.[292] A SIP provision that purports to exempt a source from compliance with applicable emission limitations during SSM events, contrary to the requirements of the CAA for continuous emission limitations, does not become legally permissible merely because there is not definitive evidence that any excess emissions have resulted from the exemption and have literally caused a specific NAAQS violation.[293]

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

The EPA's interpretation of CAA section 110(k)(5) is that the fundamental integrity of the CAA's SIP process and structure are undermined if emission limitations relied upon to meet CAA requirements related to protection of public health and the environment can be violated without potential recourse. For example, the EPA does not believe that it is authorized to issue a SIP call to rectify an impermissible automatic exemption provision only after a violation of the NAAQS has occurred, or only if that NAAQS violation can be directly linked to the excess emissions that resulted from the impermissible automatic exemption by a particular source on a particular day. If the SIP contains a provision that is inconsistent with fundamental requirements of the CAA, that renders the SIP provision substantially inadequate.

The EPA notes that CAA section 110(k)(5) can also be an appropriate tool to address ambiguous SIP provisions that could be read by a court in a way that would violate the requirements of the CAA. For example, if an existing SIP provision concerning the state's exercise of enforcement discretion is sufficiently ambiguous that it could be construed to preclude enforcement by the EPA or through a citizen suit if the state elects to deem a given SSM event not a violation, then that could render the provision substantially inadequate by interfering with the enforcement structure of the CAA.[295] If a court could Start Printed Page 33927construe the ambiguous SIP provision to bar enforcement, then the EPA believes that it may be appropriate to take action to eliminate that uncertainty by requiring the state to revise the ambiguous SIP provision. Under such circumstances, it may be appropriate for the EPA to issue a SIP call to assure that the SIP provisions are sufficiently clear and consistent with CAA requirements on their face.[296]

In this instance, the Petition raised questions concerning the adequacy of existing SIP provisions that pertain to the treatment of excess emissions during SSM events. The SIP provisions identified by the Petitioner generally fall into four major categories: (i) Automatic exemptions; (ii) exemptions as a result of director's discretion; (iii) provisions that appear to bar enforcement by the EPA or through a citizen suit if the state decides not to enforce through exercise of enforcement discretion; and (iv) affirmative defense provisions that purport to limit or eliminate a court's jurisdiction to assess liability and impose remedies for exceedances of SIP emission limitations. The EPA believes that each of these types of SIP deficiency potentially justifies a SIP call pursuant to CAA section 110(k)(5), if the Agency determines that a SIP call is the proper means to rectify an existing deficiency in a SIP.

2. Substantial Inadequacy of Automatic Exemptions

The EPA believes that SIP provisions that provide an automatic exemption from otherwise applicable emission limitations are substantially inadequate to meet CAA requirements. A typical SIP provision that includes an impermissible automatic exemption would provide that a source has to meet a specific emission limitation, except during startup, shutdown and malfunction, and by definition any excess emissions during such events would not be violations and thus there could be no enforcement based on those excess emissions. The EPA's interpretation of CAA requirements for SIP provisions has been reiterated multiple times through the SSM Policy and actions on SIP submissions that pertain to this issue. The EPA's longstanding view is that SIP provisions that include automatic exemptions for excess emissions during SSM events, such that the excess emissions during those events are not considered violations of the applicable emission limitations, do not meet CAA requirements. Such exemptions undermine the attainment and maintenance of the NAAQS, protection of PSD increments and improvement of visibility, and SIP provisions that include such exemptions fail to meet these and other fundamental requirements of the CAA.

The EPA interprets CAA sections 110(a)(2)(A) and 110(a)(2)(C) to require that SIPs contain “emission limitations” to meet CAA requirements. Pursuant to CAA section 302(k), those emission limitations must be “continuous.” Automatic exemptions from otherwise applicable emission limitations thus render those limits less than continuous as required by CAA sections 302(k), 110(a)(2)(A) and 110(a)(2)(C), thereby inconsistent with a fundamental requirement of the CAA and thus substantially inadequate as contemplated in CAA section 110(k)(5).

This inadequacy has far-reaching impacts. For example, air agencies rely on emission limitations in SIPs in order to provide for attainment and maintenance of the NAAQS. These emission limitations are often used by air agencies to meet various requirements including: (i) In the estimates of emissions for emissions inventories; (ii) in the determination of what level of emissions meets various statutory requirements such as “reasonably available control measures” in nonattainment SIPs or “best available retrofit technology” in regional haze SIPs; and (iii) in critical modeling exercises such as attainment demonstration modeling for nonattainment areas or increment use for PSD permitting purposes.

Because the NAAQS are not directly enforceable against individual sources, air agencies rely on the adoption and enforcement of these generic and specific emission limitations in SIPs in order to provide for attainment and maintenance of the NAAQS, protection of PSD increments and improvement of visibility, and to meet other CAA requirements. Automatic exemption provisions for excess emissions eliminate the possibility of enforcement for what would otherwise be clear violations of the relied-upon emission limitations and thus eliminate any opportunity to obtain injunctive relief that may be needed to protect the NAAQS or meet other CAA requirements. Likewise, the elimination of any possibility for penalties for what would otherwise be clear violations of the emission limitations, regardless of the conduct of the source, eliminates any opportunity for penalties to encourage appropriate design, operation and maintenance of sources and to encourage efforts by source operators to prevent and to minimize excess emissions in order to protect the NAAQS or to meet other CAA requirements. Removal of this monetary incentive to comply with the SIP reduces a source's incentive to design, operate, and maintain its facility to meet emission limitations at all times.

3. Substantial Inadequacy of Director's Discretion Exemptions

The EPA believes that SIP provisions that allow discretionary exemptions from otherwise applicable emission limitations are substantially inadequate to meet CAA requirements for the same reasons as automatic exemptions, but for additional reasons as well. A typical SIP provision that includes an impermissible “director's discretion” component would purport to authorize air agency personnel to modify existing SIP requirements under certain conditions, e.g., to grant a variance from an otherwise applicable emission limitation if the source could not meet the requirement in certain circumstances.[297] If such provisions are sufficiently specific, provide for sufficient public process and are sufficiently bounded, so that it is possible to anticipate at the time of the EPA's approval of the SIP provision how that provision will actually be applied and the potential adverse impacts thereof, then such a provision might meet basic CAA requirements. In essence, if it is possible to anticipate and evaluate in advance how the exercise of enforcement discretion could impact compliance with other CAA requirements, then it may be possible to determine in advance that the preauthorized exercise of director's discretion will not interfere with other CAA requirements, such as providing for attainment and maintenance of the Start Printed Page 33928NAAQS. Most director's discretion-type provisions cannot meet this basic test.

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

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

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

The EPA's evaluation of the specific SIP provisions of this type identified in the Petition indicates that none of them provides sufficient process or sufficient bounds on the exercise of director's discretion to be permissible. Most on their face would allow potentially limitless exemptions from SIP requirements with potentially dramatic adverse impacts inconsistent with the objectives of the CAA. More importantly, however, each of the identified SIP provisions goes far beyond the limits of what might theoretically be a permissible director's discretion provision, by authorizing state personnel to create case-by-case exemptions from the applicable emission limitations or other requirements of the SIP for excess emissions during SSM events. Given that the EPA interprets the CAA not to allow exemptions from SIP emission limitations for excess emissions during SSM events in the first instance, it follows that providing such exemptions through the ad hoc mechanism of a director's discretion provision is also not permissible and compounds the problem.

As with automatic exemptions for excess emissions during SSM events, a provision that allows discretionary exemptions would not meet the statutory requirements of CAA sections 110(a)(2)(A) and 110(a)(2)(C) that require SIPs to contain “emission limitations” to meet CAA requirements. Pursuant to CAA section 302(k), those emission limitations must be “continuous.” Discretionary exemptions from otherwise applicable emission limitations render those limits less than continuous, as is required by CAA sections 110(a)(2)(A) and 110(a)(2)(C), and thereby inconsistent with a fundamental requirement of the CAA and thus substantially inadequate as contemplated in section CAA 110(k)(5). Such exemptions undermine the objectives of the CAA such as protection of the NAAQS and PSD increments, and they fail to meet other fundamental requirements of the CAA.Start Printed Page 33929

In addition, discretionary exemptions undermine effective enforcement of the SIP by the EPA or through a citizen suit, because often there may have been little or no public process concerning the exercise of director's discretion to grant the exemptions, or easily accessible documentation of those exemptions, and thus even ascertaining the possible existence of such ad hoc exemptions will further burden parties who seek to evaluate whether a given source is in compliance or to pursue enforcement if it appears that the source is not. Where there is little or no public process concerning such ad hoc exemptions, or there is inadequate access to relevant documentation of those exemptions, enforcement by the EPA or through a citizen suit may be severely compromised. As explained in the 1999 SSM Guidance, the EPA does not interpret the CAA to allow SIP provisions that would allow the exercise of director's discretion concerning violations to bar enforcement by the EPA or through a citizen suit. The exercise of director's discretion to exempt conduct that would otherwise constitute a violation of the SIP would interfere with effective enforcement of the SIP. Such provisions are inconsistent with and undermine the enforcement structure of the CAA provided in CAA sections 113 and 304, which provide independent authority to the EPA and citizens to enforce SIP provisions, including emission limitations. Thus, SIP provisions that allow discretionary exemptions from applicable SIP emission limitations through the exercise of director's discretion are substantially inadequate to comply with CAA requirements as contemplated in CAA section 110(k)(5).

4. Substantial Inadequacy of Improper Enforcement Discretion Provisions

The EPA believes that SIP provisions that pertain to enforcement discretion but could be construed to bar enforcement by the EPA or through a citizen suit if the air agency declines to enforce are substantially inadequate to meet CAA requirements. A typical SIP provision that includes an impermissible enforcement discretion provision specifies certain parameters for when air agency personnel should pursue enforcement action, but is worded in such a way that the air director's decision defines what constitutes a “violation” of the emission limitation for purposes of the SIP, i.e., by defining what constitutes a violation, the air agency's own enforcement discretion decisions are imposed on the EPA or citizens.[301]

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

5. Substantial Inadequacy of Affirmative Defense Provisions

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

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

Section 110(k)(5) of the CAA provides the EPA with authority to determine whether a SIP is substantially inadequate to attain or maintain the NAAQS or otherwise comply with any requirement of the CAA. Where the EPA makes such a determination, the EPA then has a duty to issue a SIP call.

In addition to providing general authority for a SIP call, CAA section 110(k)(5) sets forth the process and timing for such an action. First, the statute requires the EPA to notify the state of the final finding of substantial inadequacy. The EPA typically provides notice to states by a letter from the Assistant Administrator for the Office of Air and Radiation to the appropriate state officials in addition to publication of the final action in the Federal Register.

Second, the statute requires the EPA to establish “reasonable deadlines (not to exceed 18 months after the date of such notice)” for states to submit corrective SIP submissions to eliminate the inadequacy in response to the SIP call. The EPA proposes and takes comment on the schedule for the submission of corrective SIP revisions in order to ascertain the appropriate timeframe, depending on the nature of the SIP inadequacy.

Third, the statute requires that any finding of substantial inadequacy and notice to the state be made public. By undertaking a notice-and-comment rulemaking, the EPA assures that the air agencies, affected sources and members of the public all are adequately Start Printed Page 33930informed and afforded the opportunity to participate in the process. Through the February 2013 proposal, the SNPR and this final notice, the EPA is providing a full evaluation of the issues raised by the Petition and has used this process as a means of giving clear and up-to-date guidance concerning SIP provisions relevant to the treatment of excess emissions during SSM events that is consistent with CAA requirements.

If the state fails to submit the corrective SIP revision by the deadline established in this final notice, CAA section 110(c) authorizes the EPA to “find[ ] that [the] State has failed to make a required submission.” [303] Once the EPA makes such a finding of failure to submit, CAA section 110(c)(1) requires the EPA to “promulgate a Federal implementation plan at any time within 2 years after the [finding] . . . unless the State corrects the deficiency, and [the EPA] approves the plan or plan revision, before [the EPA] promulgates such [FIP].” Thus, if the EPA finds that the air agency failed to submit a complete SIP revision that responds to this SIP call, or if the EPA disapproves such SIP revision, then the EPA will have an obligation under CAA section 110(c)(1) to promulgate a FIP no later than 2 years from the date of the finding or the disapproval, if the deficiency has not been corrected before that time.[304]

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

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

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

When the EPA finalizes a finding of substantial inadequacy and a SIP call for any state, CAA section 110(k)(5) requires the EPA to establish a SIP submission deadline by which the state must make a SIP submission to rectify the identified deficiency. Pursuant to CAA section 110(k)(5), the EPA has authority to set a SIP submission deadline that is up to 18 months from the date of the final finding of inadequacy.

The EPA proposed to establish a date 18 months from the date of promulgation of the final finding for the state to respond to the SIP call. After further evaluation of this issue and consideration of comments on the proposed SIP call, the EPA has decided to finalize the proposed schedule. Thus, the SIP submission deadline for each of the states subject to this SIP call will be November 22, 2016. Thereafter, the EPA will review the adequacy of that new SIP submission in accordance with the CAA requirements of sections 110(a), 110(k), 110(l) and 193, including the EPA's interpretation of the CAA reflected in the SSM Policy as clarified and updated through this rulemaking.

The EPA is providing the maximum time permissible under the CAA for a state to respond to a SIP call. The EPA believes that it is appropriate to provide states with the full 18 months authorized under CAA section 110(k)(5) in order to allow states sufficient time to make SIP revisions following their own SIP development process. During this time, the EPA recognizes, an affected state will need to revise its state regulations, provide for public input, process the SIP revision through the state's own procedures and submit the SIP revision to the EPA. Such a schedule will allow for the necessary SIP development process to correct the deficiencies, yet still achieve the necessary SIP improvements as expeditiously as practicable. There may be exceptions, particularly in states that have adopted especially time-consuming procedures for adoption and submission of SIP revisions. The EPA acknowledges that the longstanding existence of many of the provisions at issue, such as automatic exemptions for SSM events, may have resulted in undue reliance on them as a compliance mechanism by some sources. As a result, development of appropriate SIP revisions may entail reexamination of the applicable emission limitations themselves, and this process may require the maximum time allowed by the CAA. For example, if circumstances do not allow the state to develop alternative emission limitations within that time, the state may find it necessary to remove the automatic exemptions in an initial responsive SIP revision and establish alternative emission limitations in a later SIP revision. Nevertheless, the EPA encourages the affected states to make the necessary revisions in as timely a fashion as possible and encourages the states to work with the respective EPA Regional Start Printed Page 33931Office as they develop the SIP revisions. The EPA intends to review and act upon the SIP submissions as promptly as resources will allow, in order to correct these deficiencies in as timely a manner as possible. Recent experience with several states that elected to correct the deficiencies identified in the February 2013 proposal in advance of this final action suggests that these SIP revisions can be addressed efficiently through cooperation between the air agencies and the EPA.

The EPA notes that the SIP call for affected states finalized in this action is narrow and applies only to the specific SIP provisions determined to be inconsistent with the requirements of the CAA. To the extent that a state is concerned that elimination of a particular aspect of an existing emission limitation, such as an impermissible exemption, will render that emission limitation more stringent than the state originally intended and more stringent than needed to meet the CAA requirements it was intended to address, the EPA anticipates that the state will revise the emission limitation accordingly, but without the impermissible exemption or other feature that necessitated the SIP call. With adequate justification, this SIP revision might, e.g., replace a numerical emission limitation with an alternative control method (design, equipment, work practice or operational standard) as a component of the emission limitation applicable during startup and/or shutdown periods.

The EPA emphasizes that its authority under CAA section 110(k)(5) does not extend to requiring a state to adopt a particular control measure in its SIP revision in response to the SIP call. Under principles of cooperative federalism, the CAA vests air agencies with substantial discretion in how to develop SIP provisions, so long as the provisions meet the legal requirements and objectives of the CAA.[306] Thus, the inclusion of a SIP call to a state in this action should not be misconstrued as a directive to the state to adopt a particular control measure. The EPA is merely requiring that affected states make SIP revisions to remove or revise existing SIP provisions that fail to comply with fundamental requirements of the CAA. The states retain discretion to remove or revise those provisions as they determine best, so long as they bring their SIPs into compliance with the requirements of the CAA.[307] Through this rulemaking action, the EPA is reiterating, clarifying and updating its interpretations of the CAA with respect to SIP provisions that apply to emissions from sources during SSM events in order to provide states with comprehensive guidance concerning such provisions.

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

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

The EPA received a wide range of comments on the February 2013 proposal and the SNPR questioning the scope of the Agency's authority to issue this SIP call action under section 110(k)(5), the process followed by EPA for this SIP call action, or the timing that the EPA provided for response to this SIP call action. Although there were numerous comments on these general topics, the majority of the comments raised the same questions and made similar arguments (e.g., that the EPA has an obligation under section 110(k)(5) to “prove” not only that an exemption for SSM events in a SIP emission limitation is contrary to the explicit legal requirements of the CAA but also that this illegal exemption “caused” a specific violation of the NAAQS at a particular monitor on a particular day). For clarity and ease of discussion, the EPA is responding to these overarching comments, grouped by topic, in this section of this document.

1. Comments that section 110(k)(5) requires the EPA to “prove causation” to have authority to issue a SIP call.

Comment: Numerous state and industry commenters argued that the EPA has no authority to issue a SIP call with respect to a given SIP provision unless and until the Agency first proves definitively that the provision has caused a specific harm, such as a specific violation of the NAAQS in a specific area. These commenters generally focused upon the “attainment and maintenance” clause of section 110(k)(5) and did not address the “comply with any requirement of” the CAA clause.

For example, many industry commenters opposed the EPA's interpretation of section 110(k)(5) on the grounds that the Agency had failed to provide a specific technical analysis “proving” how the SIP provisions failed to provide for attainment or maintenance of the NAAQS. For areas attaining the NAAQS, commenters asserted that there should be a presumption that existing SIP provisions are adequate if they have resulted in attainment of the NAAQS. For areas violating the NAAQS, commenters claimed that the EPA is required to conduct a technical analysis to determine if there is a “nexus between the provisions that are the subject of its SSM SIP Call Proposal and the specific pollutants for which attainment has not been achieved.” Other industry commenters argued that in order to have authority to issue a SIP call, the EPA must prove through a technical analysis that a given SIP provision “is” substantially inadequate, not that it “may be.” These commenters claimed that the EPA has not shown how any of the SIP provisions at issue in this action “threatens the NAAQS, fails to sufficiently mitigate interstate transport, or comply with any other Start Printed Page 33932CAA requirement.” Many industry commenters questioned whether exempt emissions during SSM events pose any attainment-related concerns, making assertions such as: “[i]nfrequent malfunction, startup and shutdown events at a limited number of stationary sources are likely to have no effect on attainment.”

Many state commenters made similar arguments, based on the specific attainment or nonattainment status of areas in their respective states. For example, one state commenter claimed that the EPA failed to make required technical findings that the specific provisions the Agency identified as legally deficient “are so substantially inadequate that the State cannot attain or maintain the NAAQS or otherwise comply with the CAA.” The commenter claimed that the EPA should have evaluated all of the state's emission limitations, emission inventories and attainment and maintenance demonstrations for the NAAQS, rather than focusing on these individual SIP provisions. In order to demonstrate substantial inadequacy under section 110(k)(5), the state claimed, the EPA “must point to facts” that show “the State cannot attain or maintain the NAAQS or comply with the CAA” if the provisions remain in the SIP. Other states made comparable arguments with respect to the SIP provisions at issue in their SIPs and claimed that the EPA is required to establish how the provisions caused or contributed to a specific violation of a NAAQS in those states.

By contrast, many environmental group commenters and individual commenters took the opposite position concerning what is necessary to support a finding of substantial inadequacy under section 110(k)(5). These commenters argued that that the EPA may issue a SIP call not only where it determines that a SIP is substantially inadequate to attain or maintain a NAAQS with a technical analysis but also where the Agency determines that the SIP is substantially inadequate “to comply with any requirement of the Act.” The commenters noted that the EPA identified specific statutory provisions of the CAA with which the SIP provisions at issue in this action do not comply. For example, these commenters agreed with the EPA's view that SIP provisions with automatic or discretionary exemptions for emissions during SSM events do not meet the fundamental requirements that SIP emission limitations must apply to limit emissions from sources on a continuous basis, in accordance with sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). In addition to arguing that failure to meet legal requirements of the CAA is a sufficient basis for a SIP call, some commenters provided additional support to illustrate how SIP provisions with deficiencies such as automatic or discretionary exemptions for emissions during SSM events result in large amounts of excess emissions that would otherwise be violations of the applicable emission limitations.

Response: The EPA disagrees with the argument that it has no authority to issue a SIP call under section 110(k)(5) unless the Agency provides a factual or technical analysis to demonstrate that the SIP provision at issue caused a specific environmental harm or undermined a specific enforcement case. As explained in the February 2013 proposal, in the SNPR and in this final action, the EPA interprets its authority under section 110(k)(5) to authorize a SIP call for not only provisions that are substantially inadequate for purposes of attainment or maintenance of the NAAQS but also those provisions that are substantially inadequate for purposes of “any requirement” of the CAA.[308] To be clear, the EPA can also issue a SIP call whenever it determines that a SIP as a whole, or a specific SIP provision, is deficient because the SIP did not prevent specific violations of a NAAQS, at a specific monitor, on a specific date. However, that is not the extent of the EPA's authority under section 110(k)(5).

On its face, section 110(k)(5) does not impose any explicit requirements with respect to what specific form of factual or analytical basis is necessary for issuance of a SIP call. Because the statute does not prescribe the basis on which the EPA is to make a finding of substantial inadequacy, the Agency interprets section 110(k)(5) to provide discretion concerning what is necessary to support such a finding. The Agency believes that the nature of the factual or analytical basis necessary to make a finding is dependent upon the specific nature of the substantial inadequacy in a given SIP provision.

For example, when the EPA issued the NOX SIP Call to multiple states because their SIPs failed to address interstate transport adequately in accordance with section 110(a)(2)(D)(i)(I), the Agency did base that SIP call on a detailed factual analysis including ambient air impacts.[309] In that situation, the specific requirement of the CAA at issue was the statutory obligation of each state to have a SIP that contains adequate provisions to prohibit emissions from sources “in amounts” that “contribute significantly to nonattainment in, or interfere with maintenance by, any other State” with respect to the NAAQS. Because of the phrase “in amounts,” the EPA considered it appropriate to evaluate whether each state's SIP was substantially inadequate to comply with section 110(a)(2)(D)(i)(I) through a detailed analysis of the emissions from the state and their impacts on other states. Moreover, given the use of ambiguous terms in section 110(a)(2)(D)(i)(I) such as “contribute significantly,” the EPA concluded that it was appropriate to conduct a detailed analysis to quantify the amount of emissions that each of the affected states needed to eliminate in order to comply with section 110(a)(2)(D)(i)(I) for the specific NAAQS in question. However, the EPA's decision to determine these facts and to conduct these analyses as a basis for that particular SIP call action was due to the nature of the SIP deficiency at issue and the wording of section 110(a)(2)(D)(i)(I). The EPA has similarly issued other SIP calls for which the Agency determined that a specific factual or technical analysis was appropriate to support the finding of substantial inadequacy.[310]

Not all situations, however, require the same type of detailed factual analysis to support the finding of substantial inadequacy. For example, when the EPA issued the PSD GHG SIP call to 13 states for failure to have a PSD permitting program that properly addresses GHG emissions, the Agency did not need to base that SIP call action on a detailed factual analysis of ambient air impacts.[311] In that situation, the statutory requirement of the CAA in question was the obligation of each state SIP under section 110(a)(2)(C) to Start Printed Page 33933include a PSD permitting program that addresses all federally regulated air pollutants, including GHGs. In that action, the EPA made a finding that the SIPs of 13 states were substantially inadequate to “comply with any requirement” of the CAA because the PSD permitting programs in their EPA-approved SIPs did not apply to GHG emissions from new and modified sources. Accordingly, the EPA issued a SIP call to the 13 states because their SIPs failed to comply with specific legal requirements of the CAA. This failure to meet an explicit CAA legal requirement to address GHG emissions in permits for sources as required by statute did not require the EPA to provide a technical analysis of the specific environmental impacts that this substantial inadequacy would cause. For this type of SIP deficiency, it was sufficient for the EPA to make a factual finding that the affected states had SIPs that failed to meet this fundamental legal requirement.[312] The EPA has issued other SIP calls for which the Agency made a finding that a state's failure to meet specific legal requirement of the CAA for SIPs was a substantial inadequacy without the need to provide a technical air quality analysis relating to NAAQS violations.[313]

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

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

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

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

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

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

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

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

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

2. Comments that the EPA must make specific factual findings to meet the Start Printed Page 33934requirements of section 110(a)(2)(H)(ii) to have authority to issue a SIP call.

Comment: A number of commenters argued that even if section 110(k)(5) does not require the EPA to provide a technical analysis to support a finding of substantial inadequacy, section 110(a)(2)(H)(ii) does impose this obligation. The commenters noted that section 110(a)(2)(H)(ii) requires states to revise their SIPs “whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate.” The commenters claimed that this statutory language imposes a requirement for the EPA to “find” the SIP inadequate and “clearly indicates that a SIP Call must be justified by factual findings supported by record evidence.”

One commenter argued that the use of the word “finds” should be read in light of the dictionary definition of “find”—“to discover by study or experiment.” The commenter noted that courts commonly hold that agencies must draw a link between the facts and a challenged agency decision. To support this basic principle of administrative law, the commenter cited a litany of cases including: Motor Vehicle Mfrs Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983); Appalachian Power Co. v. EPA, 251 F.3d 1026, 1034 (D.C. Cir. 2001); Tex Tin Corp. v. EPA, 992 F.2d 353, 356 (D.C. Cir. 1993); Nat'l Gypsum v. EPA, 968 F.2d 40, 43-44 (D.C. Cir. 1992); Michigan v. EPA, 213 F.3d 663, 681 (D.C. Cir. 2000). Thus, the commenter suggested that the statutory language of section 110(a)(2)(H)(ii) requires a specific factual or technical demonstration concerning the ambient air impacts of an inadequate SIP provision, even if the language of section 110(k)(5) does not.

Another commenter argued that the phrase “on the basis of information available to the Administrator” in section 110(a)(2)(H)(ii) means that the EPA must not only consider the specific terms of the SIP provisions relative to the legal requirements of the statute but must also consider other information that is “available,” including how the provisions have been affecting air quality or enforcement since approval. In support of this proposition, the commenter cited 1970 legislative history for section 110(a)(2)(H):

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

Thus, the commenter concluded that the EPA must not only find that the SIP is facially inconsistent with the legal requirements of the CAA but also find it “substantially inadequate” to achieve the goals of the requirements as a factual matter before issuing a SIP call. The implication of the commenter's argument is that section 110(a)(2)(H)(ii) imposes additional limitations upon the EPA's authority to issue a SIP call.

Response: The EPA disagrees that it has not made the findings necessary to support the present SIP call action. The thrust of the commenters' argument is that the facts that the EPA “finds” or the “information” upon which the EPA bases such a finding can only be technical or scientific facts proving that a given SIP provision resulted in emissions that caused a specific violation of the NAAQS. As with section 110(k)(5), however, nothing in section 110(a)(2)(H)(ii) compels such a narrow reading. The plain language of section 110(a)(2)(H)(ii) does not support the commenters' arguments. To the extent that section 110(a)(2)(H)(ii) is ambiguous, however, the EPA does not interpret it to require the types of technical findings claimed by the commenters in the case of SIP provisions that do not meet legal requirements of the CAA. To the contrary, the EPA interprets the statutory language to leave to the Agency's discretion what facts or information are necessary to find that a given SIP provision is substantially inadequate. In short, the EPA's “finding” may be a finding that a SIP provision does not meet applicable legal requirements without definitive proof that this legal deficiency caused a specific outcome, such as a specific impact on the NAAQS or a specific enforcement action.

First, section 110(a)(2)(H)(ii) does not on its face directly address the scope of the EPA's authority, unlike section 110(k)(5). Section 110(a)(2)(H)(ii) appears in section 110(a)(2), which contains a listing of specific structural or program requirements that each state's SIP must include. In the case of section 110(a)(2)(H)(ii), the CAA requires each state to have provisions in its SIP that “provide for revision of such plan” in the event that the EPA issues a SIP call. Given that section 110(k)(5) is the provision that directly addresses the EPA's authority to issue a SIP call, section 110(a)(2)(H)(ii) should not be interpreted in a way that contradicts or curtails the broad authority provided in section 110(k)(5). The EPA does not interpret section 110(k)(5) to require proof that a given SIP provision caused a specific environmental harm or undermined a specific enforcement action in order to find the provision substantially inadequate. If the provision fails to meet fundamental legal requirements of the CAA for SIP provisions, that alone is sufficient.

Second, even if read in isolation, section 110(a)(2)(H)(ii) does not specify what type of finding the EPA is required to make or specify the way in which the Agency should make such a finding. The EPA agrees that this section of the CAA describes findings that the EPA makes “on the basis of information available to the Administrator that the plan is substantially inadequate to attain” the NAAQS. This section does not, however, expressly state that the “information” in question must be a particular form of information, nor does it expressly require any specified form of technical analysis such as modeling that demonstrates that a particular SIP deficiency caused a violation of the NAAQS. Because the term “information” is not limited in this way, the EPA interprets it to mean whatever form of information is relevant to the finding in question. For certain types of deficiencies, the EPA may determine that such a technical analysis is appropriate, but that does not mean that it is required as a basis for all findings of substantial inadequacy.[321]

Third, section 110(a)(2)(H)(ii), like section 110(k)(5), is not limited to findings related exclusively to attainment of the NAAQS. Section 110(a)(2)(H)(ii) also expressly refers to findings by the EPA that a SIP is substantially inadequate “to otherwise comply with any additional requirements established under” the CAA. The EPA interprets this explicit reference to “any additional requirements” to include any legal requirements applicable to SIP provisions, such as the requirement that emission limitations must apply continuously. The commenters misconstrue section 110(a)(2)(H)(ii) to Start Printed Page 33935refer exclusively to provisions that are literally found to cause a specific violation of the NAAQS. The EPA acknowledges that the legislative history quoted by the commenters discusses findings related to a failure of a SIP to attain the NAAQS, but the passage quoted does not explain the meaning of “new information” any more specifically than the statute, nor does the passage explain why the actual statutory text of section 110(a)(2)(H)(ii) now refers to findings related to failures to meet “any additional requirements” of the CAA.[322] Moreover, the commenters did not address the changes to the CAA in 1977 that added to the statutory language to refer to other requirements, nor did they address the changes to the CAA in 1990 that added section 110(k)(5), which refers to all other requirements of the CAA. The EPA believes that the more recent changes to the statute in fact support its view that section 110(a)(2)(H)(ii) entails compliance with the legal requirements of the CAA, not the narrow reading advocated by the commenters.

Fourth, the EPA disagrees with the commenters' arguments that it did not make factual “findings” to support this SIP call. To the contrary, the EPA has made numerous factual determinations with regard to the specific SIP provisions at issue. For example, for those SIP provisions that include automatic exemptions for emissions during SSM events, the EPA has found that the provisions are inconsistent with the definition of “emission limitation” in section 302(k) and that SIP provisions that allow sources to exceed otherwise applicable emission limitations during SSM events may interfere with attainment and maintenance of the NAAQS. The EPA has also made the factual determination that other SIP provisions that authorize director's discretion exemptions during SSM events are inconsistent with the statutory provisions applicable to the approval and revision of SIP provisions. The EPA has found that overbroad enforcement discretion provisions are inconsistent with the enforcement structure of the CAA in that they could be interpreted to allow the state to make the final decision whether such emissions are violations, thus impeding the ability of the EPA and citizens to enforce the emission limitations of the SIP. Similarly, the EPA has found, consistent with the court's decision in NRDC v. EPA, that affirmative defenses in SIP provisions are inconsistent with CAA requirements because they operate to alter or eliminate the jurisdiction of the courts to determine liability and impose penalties. In short, the EPA has made the factual findings that specific provisions are substantially inadequate to meet requirements of the CAA, as contemplated in both section 110(a)(2)(H)(ii) and section 110(k)(5).

Finally, the EPA notes that the cases cited by the commenters to support their contentions concerning the factual basis for agency decisions are not relevant to the specific question at hand. The correct question is whether section 110(a)(2)(H)(ii) requires the type of factual or technical analysis that they claim. None of the cases they cited address this specific issue. By contrast, the decision of the Tenth Circuit in US Magnesium, LLC v. EPA is much more relevant. In that decision, the court concluded that the EPA's authority under section 110(k)(5) is not restricted to situations where a deficient SIP provision caused a specific violation of the NAAQS and the exercise of that authority does not require specific factual findings that the provision caused such impacts.[323]

3. Comments that the EPA lacks authority to issue a SIP call because it is interpreting the term “substantial inadequacy” incorrectly.

Comment: Some commenters claimed that although the term “substantially inadequate” is not defined in the statute, the EPA made no effort to interpret the term. Citing Qwest Corp. v. FCC, 258 F.3d 1191, 1201-02 (10th Cir. 2001), the commenters argued that the EPA is not entitled to any deference to its interpretation of the term “substantial inadequacy.”

Other commenters acknowledged that the EPA took the position that the term “substantially inadequate” is not defined in the CAA and that the Agency can establish an interpretation of that provision under Chevron step 2. However, these commenters disagreed that the EPA's interpretation of the term in the February 2013 proposal was reasonable. In particular, the commenters disagreed with the EPA's view that once a SIP provision is found to be “facially inconsistent” with a specific legal requirement of the CAA, nothing more is required to find the provision “substantially inadequate” to “comply with” that requirement. Commenters claimed that the EPA's interpretation conflicts with the statute because it ignores the statutory requirement that a SIP call be based on inadequacies that are “substantial” and that the interpretation does not meet the “high bar” Congress established before states could be required to undertake the difficult task of revising a SIP.

State commenters claimed that the requirement that the EPA must determine that the SIP is “substantially” inadequate establishes a heavy burden for the EPA. The commenters relied on a dictionary definition of “substantially” as meaning “considerable in importance, value, degree, amount, or extent.” The commenters argued that when modifying the word “inadequate,” the use of the modifier “substantially” in section 110(k)(5) enhances the degree of proof required. Thus, the commenters argued that the EPA cannot just assume that the provisions may prevent attainment of the NAAQS.

Other industry commenters disagreed that the term “substantially inadequate” is ambiguous but claimed that even if it were, the EPA's own interpretation is vague and ambiguous. The commenters asserted that the EPA's statement that it must evaluate the adequacy of specific SIP provision “in light of the specific purposes for which the SIP provision at issue is required” and with respect to whether the provision meets “fundamental legal requirements applicable to such a provision” is not a reasonable interpretation of the statutory language. Furthermore, the commenters argued, the EPA's interpretation of section 110(k)(5) to authorize a SIP call in the absence of any causal evidence that the SIP provision at issue causes a particular environmental impact reads out of the statute “the explicit requirement that a SIP call related to NAAQS be made only where the state plan is substantially inadequate to attain or maintain the relevant standard.”

Response: The EPA disagrees with commenters who claimed that the Agency did not explain its interpretation of section 110(k)(5) in general, or the term “substantially inadequate” in particular, in the February 2013 proposal. To the contrary, the EPA provided an explanation of why it considers section 110(k)(5) to be ambiguous and provided a detailed explanation of how the Agency is interpreting and applying that statutory language to the specific SIP provisions at issue in this action.[324] Moreover, the EPA explained why it believes that the four major types of Start Printed Page 33936provisions at issue are inconsistent with applicable legal requirements of the CAA and thus substantially inadequate. In the SNPR, the EPA reiterated its interpretation of section 110(k)(5) with respect to affirmative defense provisions in SIPs but updated that interpretation in response to the logic of the more recent court decision in NRDC v. EPA. Thus, the commenters' reliance on the Qwest decision is not appropriate, because the EPA did explain its interpretation of the statute and it is not one that is contrary to the statute. A more appropriate precedent is the decision in US Magnesium, LLC v. EPA, in which the same court upheld the EPA's interpretation of its authority under section 110(k)(5). In short, the EPA believes that section 110(k)(5) provides the EPA with discretion to determine what constitutes a substantial inadequacy and to determine the appropriate basis for such a finding in light of the relevant CAA requirements at issue. Thus, the commenters are in error that the EPA did not articulate its interpretation of section 110(k)(5).

The EPA also disagrees with those commenters who argued that the Agency has ignored or misinterpreted the term “substantial” in this action. As many commenters acknowledged, this term is not defined in the statute. Their reliance on a dictionary definition, however, is based on the incorrect premise that a failure to comply with the legal requirements of the CAA for SIP provisions is not “considerable in importance, value, degree, amount, or extent.”

First, the commenters' argument ignores the full statutory language of section 110(k)(5) in which the EPA is authorized to issue a SIP call whenever it determines that a given SIP provision is inadequate, not only because of impacts on attainment of the NAAQS but also upon a failure to meet “any other requirement” of the CAA. As explained in the February 2013 proposal and in the SNPR, the EPA interprets its authority under section 110(k)(5) to encompass any type of deficiency, including failure to meet specific legal requirements of the CAA for SIP provisions. Failure to comply with these legal requirements can have the effect of interfering with attainment and maintenance of the NAAQS (e.g., by allowing unlimited emissions from sources during SSM events), but the failure to comply with the legal requirements is in and of itself a basis for a SIP call.

Second, the commenters' argument implies that failure of a SIP provision to meet a legal requirement of the CAA is not a “substantial” inadequacy. The EPA strongly disagrees with the view that complying with applicable legal requirements is not an important consideration in general, and not important with respect to the specific legal defects at issue here. For example, the EPA considers a SIP provision that does not apply continuously because it contains SSM exemptions to be substantially inadequate because it fails to meet legal requirements of sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). In particular, failure to meet the legal requirements for an emission limitation as contemplated in section 302(k) is a “substantial” inadequacy. The EPA is not alone in this view; the D.C. Circuit in the Sierra Club v. Johnson case held that emission limitations must be continuous and cannot contain SSM exemptions. If inclusion of SSM exemptions in emission limitations were not a “substantial” deficiency from the court's perspective, presumably the court would have ruled differently. As another example, the EPA considers the inclusion of affirmative defenses in SIP provisions that operate to alter the jurisdiction of the courts to be a substantial inadequacy. Again, the EPA's view that SIP provisions cannot interfere with the enforcement structure of the CAA set forth in section 113 and section 304 is not unreasonable. The court's decision in NRDC v. EPA held that EPA regulations cannot alter or eliminate the jurisdiction of courts to determine liability and impose remedies in judicial enforcement cases and this same logic extends to the states in SIP provisions. Contrary to the arguments of the commenters, the EPA reasonably interprets the term “substantial” in section 110(k)(5) to include compliance with the legal requirements of the CAA applicable to SIP provisions.

Third, the EPA notes that its reading of section 110(k)(5) does not “read out of the statute” the statutory language that SIP provisions can be substantially inadequate “to attain or maintain the relevant NAAQS” as claimed by the commenters. The EPA agrees that SIP provisions can be found substantially inadequate for this specific reason, but it is the commenters who read words out of section 110(k)(5) by disregarding the portion of the statute that also authorizes a SIP call whenever a SIP provision does not “comply with any requirement of” the CAA. Indeed, the EPA believes that SIP provisions that fail to meet the specific legal requirements of the CAA are very likely to have these impacts as well; e.g., the unlimited emissions authorized by SSM exemptions can interfere with attainment and maintenance of the NAAQS. The EPA believes that Congress consciously included these fundamental legal requirements in order to assure that SIP provisions will achieve the objectives of the CAA, such as attainment and maintenance of the NAAQS. For example, legislative history for section 302(k) indicates that Congress intentionally required that emission limitations apply continuously in order to assure that they would achieve these goals as well as be consistent with the enforcement structure of the CAA.[325]

4. Comments that the EPA lacks authority to issue a SIP call because it is required to “quantify” the magnitude of any alleged SIP deficiency in order to establish that it is substantial.

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

Response: The EPA disagrees that section 110(k)(5) requires the Agency to “quantify” the degree of inadequacy in a given SIP provision before issuing a SIP call. As explained in detail in the February 2013 proposal and this document, the EPA interprets section 110(k)(5) to authorize the Agency to determine the nature of the analysis necessary to make a finding that a SIP provision is substantially inadequate. The EPA agrees that for certain SIP call actions, such as the NOX SIP call, the Start Printed Page 33937specific nature of the SIP call in question for section 110(a)(2)(D)(i) did warrant a technical evaluation of whether the emissions from sources in particular states were significantly contributing to violations of a NAAQS in other states. Thus, the EPA elected to perform a specific form of analysis to determine whether emissions from sources in certain states significantly contributed to violations of the NAAQS in other states, and if so, what degree of reductions were necessary to remedy that interstate transport.

The nature of the SIP deficiencies at issue in this action does not require that type of technical analysis and does not require a “quantification” of the extent of the deficiency. In this action, the EPA is promulgating a SIP call action that directs the affected states to revise existing SIP provisions with specific legal deficiencies that make the provisions inconsistent with fundamental legal requirements of the CAA for SIPs, e.g., automatic exemptions for emissions during SSM events or affirmative defense provisions that limit or eliminate the jurisdiction of courts to determine liability and impose remedies for violations. Accordingly, the EPA has determined that it is not necessary to establish that these deficiencies literally caused a specific violation of the NAAQS on a particular day or undermined a specific enforcement case. It is sufficient that the provisions fail to meet a legal requirement of the CAA and thus are substantially inadequate as provided in section 110(k)(5).

5. Comments that the EPA's interpretation of substantial inadequacy would override state discretion in development of SIP provisions.

Comment: Some state and industry commenters argued that the EPA's interpretation of its authority under section 110(k)(5) is wrong because it is inconsistent with the principle of cooperative federalism. These commenters asserted that the EPA's interpretation of the term “substantially inadequate,” as explained in the February 2013 proposal, would allow the Agency to dictate that states revise their SIPs without any consideration of whether the states' preferred control measures affect attainment of the NAAQS, thereby expanding the EPA's role in CAA implementation. Consequently, these commenters concluded, the EPA's interpretation of section 110(k)(5) is neither “reasonable” nor “a permissible construction of the statute” under the principles of Chevron deference.[327]

Response: The EPA disagrees with the commenters' view of the cooperative-federalism relationship established in the CAA, as explained in detail in section V.D.2 of this document. Because the commenters are misconstruing the respective responsibility and authorities of the states and the EPA under cooperative federalism, the Agency does not agree that its interpretation of section 110(k)(5) is “unreasonable” for this reason under the principles of Chevron. As explained in detail in the February 2013 proposal, the EPA interprets its authority under section 110(k)(5) to include the ability to require states to revise their SIP provisions to correct the types of deficiencies at issue in this action.

Section 110(k)(5) explicitly authorizes the EPA to issue a SIP call for a broad range of reasons, including to address any SIP provisions that relate to attainment and maintenance of the NAAQS, to interstate transport, or to any other requirement of the CAA.[328] The EPA's authority and responsibility to review SIP submissions in the first instance is to assure that they meet all applicable procedural and substantive requirements of the CAA, in accordance with the requirements of sections 110(k)(3), 110(l) and 193. The EPA's authority and responsibility under the CAA includes assuring that SIP provisions comply with specific statutory requirements, such as the requirement that emission limitations apply to sources continuously. The CAA imposes these statutory requirements in order to assure that the larger objectives of SIPs are achieved, such as the attainment and maintenance of the NAAQS, protection of PSD increments, improvement of visibility and providing for effective enforcement. The CAA imposes this authority and responsibility upon the EPA when it first evaluates a SIP submission for approval. Likewise, after the initial approval, section 110(k)(5) authorizes the EPA to require states to revise their SIPs whenever the Agency later determines that to be necessary to meet CAA requirements. This does not in any way allow the EPA to interfere in the states' selection of the control measures they elect to impose to satisfy CAA requirements relating to NAAQS attainment and maintenance, provided that those selected measures comply with all CAA requirements such as the need for continuous emissions limitations. Accordingly, the EPA believes that its interpretation of section 110(k)(5) is fully consistent with the letter and the purpose of the principles of cooperative federalism.

6. Comments that the EPA cannot issue a SIP call for an existing SIP provision unless the provision was deficient at the time the state originally developed and submitted the provision for EPA approval.

Comment: Commenters argued that the EPA is using the SIP call to require states to change SIP provisions that were acceptable at the time they were originally approved and argued that section 110(k)(5) cannot be used for that purpose. Specifically, one commenter asserted that section 110(k)(5) provides that findings of substantial inadequacy shall “subject the State to the requirements of this chapter to which the State was subject when it developed and submitted the plan for which such finding was mad e.” (Emphasis added by commenter.) The implication of the commenters' argument is that a SIP provision only needs to meet the requirements of the CAA that were applicable at the time the state originally developed and submitted the provision for EPA approval. Because the EPA has no authority to issue a SIP call under their preferred reading of section 110(k)(5), the commenters claimed, the EPA would have to use its authority under section 110(k)(6) and would have to establish that the original approval of each of the provisions at issue in this action was in error.

Response: The EPA disagrees with this reading of section 110(k)(5). As an initial matter, the commenter takes the quoted excerpt of the statute out of context. The quoted language follows “to the extent the Administrator deems appropriate.” Thus, it is clear when the statutory provision is read in full that the EPA has discretion in specifying the requirements to which the state is subject and is not limited to specifying only those requirements that applied at the time the SIP was originally “developed and submitted.” Moreover, this cramped reading of section 110(k)(5) is not a reasonable interpretation of the statute because by this logic, the EPA could never require states to update grossly out-of-date SIP provisions so long as the provisions originally met CAA requirements. Given that the CAA creates a process by which Start Printed Page 33938the EPA is required to establish and to update the NAAQS on a continuing basis, and states are required to update and revise their SIPs on a continuing basis, the Agency believes that Congress would not have intended that SIP provisions remain static for all time simply because they were adequate when first developed and approved. Such an interpretation would mean that subsequent legally significant events such as amendments of the CAA, court decisions interpreting the CAA and new or revised EPA regulations are not relevant to the continuing adequacy of existing SIP provisions. Similarly, such an interpretation would mean that facts arising later could never provide a basis for a SIP call, e.g., to address interstate transport that was not evident at the time of the original development and approval of the SIP provisions or that needs to be addressed further because of a revised NAAQS.

The commenters also argued that if a state's SIP provision was flawed at the time the EPA approved it, then the Agency's only alternative for addressing the deficient provision is through the error correction authority of section 110(k)(6). The EPA disagrees. The CAA provides a number of tools to address flawed SIPs and the EPA does not interpret these provisions to be mutually exclusive. While the EPA could potentially have relied on section 110(k)(6) to remove the deficient provisions at issue in this action, the Agency believes that section 110(k)(5) authority also provides a means to address flawed SIP provisions. As explained in the February 2013 proposal, the EPA specifically considered the relative merits of reliance on section 110(k)(5) and section 110(k)(6) and determined that the former was a better approach for this action.[329] In the present circumstances, the EPA is not addressing a single targeted flaw, i.e., a specific SIP revision that was flawed. Moreover, the EPA is not only dealing with a multitude of states in this action, but also in many cases with numerous SIP provisions developed over the years by a specific state. The provisions at issue often are included in several different places in a complex SIP and can affect multiple emission limitations in the SIP that apply to sources for purposes of multiple NAAQS.

Comparing the SIP call and error correction approaches, the EPA concluded that the SIP call authority under section 110(k)(5) provides the better approach for this action, in that it allows the states to evaluate the overall structure of their existing SIPs and determine how best to modify the affected SIP provisions in order to address the identified deficiencies. By contrast, use of the error correction authority under section 110(k)(6) would result in immediate disapproval and removal of existing SIP provisions from the SIP, which could cause confusion in terms of what requirements apply to sources. Moreover, the EPA's disapproval of a SIP submission through an error correction that reverses a prior SIP approval of a required SIP provision starts a “sanctions clock,” and sanctions would apply if the state has not submitted a revised SIP within 18 months. Similarly, the EPA would be required to promulgate a FIP if the Agency has not approved a revised SIP submission from the state within 24 months. In comparison, the sanctions and federal plan “clocks” would not start under the SIP call approach unless and until the state fails to submit a SIP revision in response to this SIP call, or unless and until the EPA disapproves that SIP submission. As explained in the February 2013 proposal, the EPA determined that the SIP call process was a better procedure through which to address the deficient SIP provisions at issue in this action.

7. Comments that the EPA failed to consider how excess emissions resulting from SSM exemptions would affect compliance with specific NAAQS, including NAAQS with different averaging periods or different statistical forms.

Comment: In addition to general claims that the EPA failed to provide required technical analysis to support the proposed SIP call to states for automatic and discretionary SSM exemptions, commenters specifically argued that the EPA is required to establish that these exemptions have caused violations in light of the considerations such as the averaging time or statistical form of specific NAAQS. The implication of the commenters' argument is that in order to demonstrate that a given SIP provision with an SSM exemption is substantially inadequate under section 110(k)(5), the EPA has to establish definitively that the emissions during SSM events would cause a violation of a particular NAAQS. This would potentially include an evaluation of the impacts of the exempted emissions on NAAQS with different averaging periods, e.g., impacts on an annual NAAQS, a 24-hour NAAQS, or a 1-hour NAAQS, and impacts on NAAQS with different statistical forms, e.g., a NAAQS that measures attainment by an annual arithmetical mean versus one that is measured by a 98th-percentile value. Moreover, commenters alluded to the difficulty of ascertaining definitively how emissions of specific precursor pollutants during a given exempted SSM event would affect attainment of one or more NAAQS.

To support the argument that the validity of SSM exemptions must be evaluated with respect to specific NAAQS, the commenters relied upon recent modeling guidance for the 1-hour NO2 NAAQS in which, the commenters claimed, the EPA directed states to disregard emissions during SSM events for purposes of demonstrating compliance with that NAAQS. The commenters claimed that the cited EPA guidance supports their argument that emissions from a source during any specific SSM event are unlikely to cause a violation of the 1-hour NO2 NAAQS. Accordingly, the commenters argued that the EPA has no authority to interpret the CAA to preclude exemptions for emissions during SSM events without first demonstrating that the exempt emissions cause NAAQS violations.

Response: As explained in the February 2013 proposal, and in response to other comments in this action, the EPA does not interpret section 110(k)(5) to require a specific technical analysis to support a SIP call related to legal deficiencies in SIP provisions. In section 110(k)(5), Congress left it to the Agency's discretion to determine what type and level of analysis is necessary to establish that a SIP provision is substantially inadequate. As explained in the February 2013 proposal, the EPA does not need to define the precise contours of its authority under section 110(k)(5) for all potential types of SIP deficiencies in this action. For purposes of this action, it is sufficient that the SIP provisions at issue are inconsistent with applicable requirements. While an ambient air quality impact analysis may be appropriate to support a SIP call with respect to certain requirements of the CAA, e.g., a SIP call for failure to have SIP provisions to prevent significant contribution to nonattainment in another state in accordance with section 110(a)(2)(D)(i)(I), the EPA does not interpret the CAA to require such an analysis in all instances. In particular, where the substantial inadequacy is related to a failure to meet a fundamental legal requirement for SIP provisions, such as the requirement in section 302(k) that emission limitations apply continuously, the EPA does not believe that such a technical analysis is required.Start Printed Page 33939

For example, section 302(k) does not differentiate between the legal requirements applicable to SIP emission limitations for an annual NAAQS versus for a 1-hour NAAQS, nor between any NAAQS based upon the statistical form of the respective standards. In addition to being supported by the text of section 302(k), the EPA's interpretation of the requirement for sources to be subject to continuous emission limitations is also the most logical given the consequences of the commenters' theory. The commenters' argument provides additional practical reasons to support the EPA's interpretation of the CAA to preclude exemptions for emissions during SSM events from SIP emission limitations as a basic legal requirement for all emission limitations.

The EPA agrees that to ascertain the specific ambient impacts of emissions during a given SSM event can sometimes be difficult. This difficulty can be exacerbated by factors such as exemptions in SIP provisions that not only excuse compliance with emission limitations but also affect reporting or recordkeeping related to emissions during SSM events. Determining specific impacts of emissions during SSM events can be further complicated by the fact that the limited monitoring network for the NAAQS in many states may make it more difficult to establish that a given SSM event at a given source caused a specific violation of the NAAQS. Even if a NAAQS violation is monitored, it may be the result of emissions from multiple sources, including multiple sources having an SSM event simultaneously. The different averaging periods and statistical forms of the NAAQS may make it yet more difficult to determine the impacts of specific SSM events at specific sources, perhaps until years after the event occurred. By the commenters' own logic, there could be situations in which it is functionally impossible to demonstrate definitively that emissions during a given SSM event at a single source caused a specific violation of a specific NAAQS.

The commenters' argument, taken to its logical extension, could result in situations where a SIP emission limitation is only required to be continuous for purposes of one NAAQS but not for another, based on considerations such as averaging time or statistical form of the NAAQS. Such situations could include illogical outcomes such as the same emission limitation applicable to the same source simultaneously being allowed to contain exemptions for emissions during SSM events for one NAAQS but not for another. For example, purely hypothetically under the commenters' premise, a given source could simultaneously be required to comply with a rate-based NOX emission limitation continuously for purposes of a 1-hour NO2 NAAQS but not be required to do so for purposes of an annual NO2 NAAQS, or the source could be required to comply continuously with the same NOx limitation for purposes of the 8-hour ozone NAAQS and the 24-hour PM2.5 NAAQS but not be required to do so for purposes of the annual PM2.5 NAAQS. Add to this the further complication that the source may be located in an area that is designated nonattainment for some NAAQS and attainment for other NAAQS, and thus subject to emission limitations for attainment and maintenance requirements simultaneously.

Under the commenters' premise, the same SIP emission limitation, subject to the same statutory definition in section 302(k), could validly include SSM exemptions for purposes of some NAAQS but not others. Such a system of regulation would make it unnecessarily hard for regulated entities, regulators and other parties to determine whether a source is in compliance. The EPA does not believe that this is a reasonable interpretation of the requirements of the CAA, nor of its authority under section 110(k)(5). This unnecessary confusion is easily resolved simply by interpreting the CAA to require that a source subject to a SIP emission limitation for NOX must meet the emission limitation continuously, in accordance with the express requirement of section 302(k), thus making SSM exemptions impermissible. The EPA does not agree that the term “emission limitation” can reasonably be interpreted to allow noncontinuous emission limitations for some NAAQS and not others. The D.C. Circuit has already made clear that the term “emission limitation” means limits that apply to sources continuously, without exemptions for SSM events.

Finally, the EPA disagrees with the specific arguments raised by commenters concerning the modeling guidance for the 1-hour NO2 NAAQS.[330] As relevant here, that guidance provides recommendations about specific issues that arise in modeling that is used in the PSD program for purposes of demonstrating that proposed construction will not cause or contribute to a violation of the 1-hour NO2 NAAQS. Thus, as an initial matter, the EPA notes that the context of that guidance relates to determining the extent of emission reductions that a source needs to achieve in order to obtain a permit under the PSD program, which is distinct from the question of whether an emission limitation in a permit must assure continuous emission reductions.

The commenters argued that this EPA guidance “allows sources to completely exclude all emissions during startup and shutdown scenarios.” This characterization is inaccurate for a number of reasons. First, the guidance in question is only intended to address certain modeling issues related to predictive modeling to demonstrate that proposed construction will not cause or contribute to violation of the 1-hour NO2 NAAQS, for purposes of determining whether a PSD permit may be issued and whether the emission limitations in the permit will require sufficient emission reductions to avoid a violation of this standard.

Second, to the extent that the guidance indicates that air quality considerations might in certain circumstances and for certain purposes be relevant to determining what emission limitations should apply to a source, that does not mean a source may legally have an exemption from compliance with existing emissions limitations during SSM events. In the guidance cited by the commenter, the EPA did recommend that under certain circumstances, it may be appropriate to model the projected impact of the source on the NAAQS without taking into account “intermittent” emissions from sources such as emergency generators or emissions from particular kinds of “startup/shutdown” operations.[331] However, the EPA did not intend this to suggest that emissions from sources during SSM events may validly be treated as exempt in SIP emission limitations. Within the same guidance document, the EPA stated unequivocally that the guidance “has no effect on or relevance to existing policies and guidance regarding excess emissions that may occur during startup and shutdown.” The EPA explained further that “all emissions from a new or modified source are subject to the applicable permitted emission limits and may be subject to enforcement concerning such excess emissions, regardless of whether a portion of those emissions are not included in the modeling demonstration based on the Start Printed Page 33940guidance provided here.” [332] In other words, even if a state elects not to include intermittent emissions from some types of startup and shutdown events in certain modeling exercises, this does not mean that sources can be excused from compliance with the emission limitation during startup and shutdown, via an exemption for such emissions.

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