[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Proposed Rules]
[Pages 55919-55956]
[FR Doc No: 2014-21830]

Vol. 79

Wednesday,

No. 180

September 17, 2014

Part III

Environmental Protection Agency

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

40 CFR Part 52

 State Implementation Plans: Response to Petition for Rulemaking;
Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of Startup, Shutdown and
Malfunction; Supplemental Proposal To Address Affirmative Defense
Provisions in States Included in the Petition for Rulemaking and in
Additional State; Proposed Rule

Federal Register / Vol. 79 , No. 180 / Wednesday, September 17, 2014
/ Proposed Rules

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2012-0322; FRL-9914-41-OAR]
RIN 2060-AR68

State Implementation Plans: Response to Petition for Rulemaking;
Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of Startup, Shutdown and
Malfunction; Supplemental Proposal To Address Affirmative Defense
Provisions in States Included in the Petition for Rulemaking and in
Additional States

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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

SUMMARY: In this supplemental notice of proposed rulemaking (SNPR), the
Environmental Protection Agency (EPA) is supplementing and revising
what it previously proposed as its response to a petition for
rulemaking filed by the Sierra Club (the Petition). By notice published
on February 22, 2013, the EPA proposed its response to the Petition's
requests concerning treatment of excess emissions in state rules by
sources during periods of startup, shutdown or malfunction (SSM).
Subsequent to that proposal, a federal court ruled that the Clean Air
Act (CAA or Act) precludes authority of the EPA to create affirmative
defense provisions applicable to private civil suits. As a result, in
this SNPR the EPA is proposing to apply its revised interpretation of
the CAA, but only with respect to affirmative defense provisions in
state implementation plans (SIPs). For specific affirmative defense
provisions identified in the Petition, we are revising the basis for
the proposed findings of substantial inadequacy and SIP calls or
proposing new findings of substantial inadequacy and SIP calls. For
specific provisions that the EPA has independently identified,
including SIP provisions in states not included in the February 2013
proposal notice, we are proposing new findings and SIP calls.

DATES: Comments. Comments must be received on or before November 6,
2014.
    Public Hearing. The EPA will hold a public hearing on this SNPR on
October 7, 2014, in Washington, DC.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2012-0322, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions
for submitting comments.
     Email<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Attention Docket ID No. EPA-HQ-OAR-2012-0322, U.S.
Environmental Protection Agency, EPA Docket Center, Air Docket, Mail
Code 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Please
include a total of two copies.
     Hand Delivery: U.S. Environmental Protection Agency, EPA
Docket Center, William Jefferson Clinton West Building, Room 3334, 1301
Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No.
EPA-HQ-OAR-2012-0322. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2012-0322. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means the EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an email comment directly to the EPA
without going through http://www.regulations.gov, your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the Internet. If
you submit an electronic comment, the EPA recommends that you include
your name and other contact information in the body of your comment and
with any CD you submit. If the EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, avoid any form of encryption and
be free of any defects or viruses. For additional information about the
EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on
submitting comments, go to section I.C of the SUPPLEMENTARY INFORMATION
section of this document.
    Docket. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at 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<PHONE_NUMBER>, and the telephone number for the Air
Docket is<PHONE_NUMBER>.
    Public Hearing: A public hearing will be held on October 7, 2014,
at the William Jefferson Clinton West Building, Room 1117B, 1301
Constitution Avenue, Washington, DC 20460. The public hearing will
convene at 9 a.m. (Eastern Standard Time) and continue until the
earlier of 6 p.m. or 1 hour after the last registered speaker has
spoken. People interested in presenting oral testimony or inquiring as
to whether a hearing is to be held should contact Ms. Pamela Long, Air
Quality Planning Division, Office of Air Quality Planning and Standards
(C504-01), U.S. Environmental Protection Agency, Research Triangle
Park, NC 27711, telephone<PHONE_NUMBER>, fax number<PHONE_NUMBER>,
email address<EMAIL_ADDRESS>at least 5 days in advance of the
public hearing (see DATES). People interested in attending the public
hearing must also call Ms. Long to verify the time, date and location
of the hearing. The public hearing will provide interested parties the
opportunity to present data, views or arguments concerning the proposed
action (i.e., this SNPR specific to affirmative defense provisions in
SIPs). The EPA will make every effort to accommodate all speakers who
arrive and register. A lunch break is scheduled from 12:30 p.m. until 2
p.m. Because this hearing is being held at U.S. government facilities,
individuals planning to attend the hearing should be prepared to show
valid picture identification to the security staff in order to gain
access to the meeting room. Please note that the REAL ID Act, passed by
Congress in 2005, established

new requirements for entering federal facilities. These requirements
took effect July 21, 2014. If your driver's license is issued by
Alaska, American Samoa, Arizona, Kentucky, Louisiana, Maine,
Massachusetts, Minnesota, Montana, New York, Oklahoma or the state of
Washington, you must present an additional form of identification to
enter the federal building where the public hearing will be held.
Acceptable alternative forms of identification include: Federal
employee badges, passports, enhanced driver's licenses, and military
identification cards. In addition, you will need to obtain a property
pass for any personal belongings you bring with you. Upon leaving the
building, you will be required to return this property pass to the
security desk. No large signs will be allowed in the building, cameras
may only be used outside of the building and demonstrations will not be
allowed on federal property for security reasons. The EPA may ask
clarifying questions during the oral presentations but will not respond
to the presentations at that time. Written statements and supporting
information submitted during the comment period will be considered with
the same weight as oral comments and supporting information presented
at the public hearing. Written comments on the proposed rule must be
received by November 6, 2014. Commenters should notify Ms. Long if they
will need specific equipment, or if there are other special needs
related to providing comments at the hearing. The EPA will provide
equipment for commenters to show overhead slides or make computerized
slide presentations if we receive special requests in advance. Oral
testimony will be limited to 5 minutes for each commenter. The EPA
encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email or CD) or in hard copy form. The
hearing schedule, including lists of speakers, will be posted on the
EPA's Web site at http://www.epa.gov/air/urbanair/sipstatus/. Verbatim
transcripts of the hearings and written statements will be included in
the docket for the rulemaking. The EPA will make every effort to follow
the schedule as closely as possible on the day of the hearing; however,
please plan for the hearing to run either ahead of schedule or behind
schedule.

FOR FURTHER INFORMATION CONTACT: Questions concerning this SNPR should
be addressed to Ms. Lisa Sutton, U.S. EPA, Office of Air Quality
Planning and Standards, State and Local Programs Group (C539-01),
Research Triangle Park, NC 27711, telephone number<PHONE_NUMBER>,
email address<EMAIL_ADDRESS>    If you have questions concerning the public hearing, please contact
Ms. Pamela Long, U.S. Environmental Protection Agency, Office of Air
Quality Planning and Standards, Air Quality Planning Division (C504-
01), Research Triangle Park, NC 27711, telephone<PHONE_NUMBER>, fax
number<PHONE_NUMBER>, email address<EMAIL_ADDRESS>(preferred
method for registering).

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

------------------------------------------------------------------------
                        Contact for regional
                      office (person, mailing
EPA Regional office      address, telephone               State
                              number)
------------------------------------------------------------------------
I..................  Alison Simcox,             Connecticut,
                      Environmental Scientist,   Massachusetts, Maine,
                      EPA Region 1, 5 Post       New Hampshire, Rhode
                      Office Square, Suite       Island and Vermont.
                      100, Boston, MA 02109-
                      3912,<PHONE_NUMBER>.
II.................  Paul Truchan, EPA Region   New Jersey, New York,
                      2, 290 Broadway, 25th      Puerto Rico and Virgin
                      Floor, New York, NY        Islands.
                      10007-1866, (212) 637-
                      3711.
III................  Amy Johansen, EPA Region   District of Columbia,
                      3, 1650 Arch Street,       Delaware, Maryland,
                      Philadelphia, PA 19103-    Pennsylvania, Virginia
                      2029,<PHONE_NUMBER>.      and West Virginia.
IV.................  Joel Huey, EPA Region 4,   Alabama, Florida,
                      Atlanta Federal Center,    Georgia, Kentucky,
                      61 Forsyth Street SW.,     Mississippi, North
                      Atlanta, GA 30303-8960,    Carolina, South
<PHONE_NUMBER>.            Carolina and Tennessee.
V..................  Christos Panos, Air and    Illinois, Indiana,
                      Radiation Division (AR-    Michigan, Minnesota,
                      18J), EPA Region 5, 77     Ohio and Wisconsin.
                      West Jackson Boulevard,
                      Chicago, IL 60604-3507,
<PHONE_NUMBER>.
VI.................  Alan Shar (6PD-L), EPA     Arkansas, Louisiana, New
                      Region 6, Fountain Place   Mexico, Oklahoma and
                      12th Floor, Suite 1200,    Texas.
                      1445 Ross Avenue,
                      Dallas, TX 75202-2733,
<PHONE_NUMBER>.
VII................  Lachala Kemp, EPA Region   Iowa, Kansas, Missouri
                      7, Air Planning and        and Nebraska.
                      Development Branch,
                      11201 Renner Boulevard,
                      Lenexa, KS 66219, (913)
                      551-7214. Alternate
                      contact is Ward Burns,
<PHONE_NUMBER>.
VIII...............  Adam Clark, Air Quality    Colorado, Montana, North
                      Planning Unit (8P-AR)      Dakota, South Dakota,
                      Air Program, Office of     Utah and Wyoming.
                      Partnership and
                      Regulatory Assistance,
                      EPA Region 8, 1595
                      Wynkoop Street, Denver,
                      CO 80202-1129, (303) 312-
                      7104.
IX.................  Lisa Tharp, EPA Region 9,  Arizona, California,
                      Air Division, 75           Hawaii, Nevada and the
                      Hawthorne Street (AIR-     Pacific Islands.
                      8), San Francisco, CA
                      94105,<PHONE_NUMBER>.
X..................  Donna Deneen,              Alaska, Idaho, Oregon
                      Environmental Engineer,    and Washington.
                      Office of Air, Waste and
                      Toxics (AWT-107), EPA
                      Region 10, 1200 Sixth
                      Avenue, Suite 900,
                      Seattle, WA 98101, (206)
                      553-6706.
------------------------------------------------------------------------

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this rule include states, U.S.
territories, local authorities and eligible tribes that are currently
administering, or may in the future administer, EPA-approved
implementation plans (``air agencies'').\1\

The EPA's action on the Petition is potentially of interest to all such
entities because the EPA is evaluating issues related to basic CAA
requirements for SIPs. Through this rulemaking, the EPA is both
clarifying and applying its interpretation of the CAA with respect to
SIP provisions applicable to excess emissions during SSM events in
general. In addition, in the final action based on this supplemental
proposal, the EPA may find specific SIP provisions in states identified
either in the Petition or by the EPA independently to be substantially
inadequate to meet CAA requirements, pursuant to CAA section 110(k)(5),
and thus those states will potentially be affected by this rulemaking
directly.\2\ For example, if a state's existing SIP includes an
affirmative defense provision that would purport to alter the
jurisdiction of the federal courts to assess monetary penalties for
violations of CAA requirements, then the EPA may determine that the SIP
provision is substantially inadequate because the provision is
inconsistent with fundamental requirements of the CAA. This rule may
also be of interest to the public and to owners and operators of
industrial facilities that are subject to emission limits in SIPs,
because it may require changes to state rules applicable to excess
emissions. When finalized, this action will embody the EPA's updated
SSM Policy for all SIP provisions relevant to excess emissions during
SSM events.
---------------------------------------------------------------------------

    \1\ The EPA respects the unique relationship between the U.S.
government and tribal authorities and acknowledges that tribal
concerns are not interchangeable with state concerns. Under the CAA
and the EPA regulations, a tribe may, but is not required to, apply
for eligibility to have a tribal implementation plan (TIP). For
convenience, we refer to ``air agencies'' in this rulemaking
collectively when meaning to refer in general to states, the
District of Columbia, U.S. territories, local air permitting
authorities and eligible tribes that are currently administering, or
may in the future administer, EPA-approved implementation plans. The
EPA notes that the petition under evaluation does not identify any
specific provisions related to tribal implementation plans. We
therefore refer to ``state'' or ``states'' rather than ``air
agency'' or ``air agencies'' when meaning to refer to one, some or
all of the 39 states identified in the Petition or other states
identified by the EPA in this SNPR. We also use ``state'' or
``states'' rather than ``air agency'' or ``air agencies'' when
quoting or paraphrasing the CAA or other document that uses that
term even when the original referenced passage may have
applicability to tribes as well.
    \2\ The specific SIPs that include affirmative defense
provisions identified by the EPA independently are listed under
section II.B of this SNPR (see table). Furthermore, in comments
received on the February 2013 proposal notice, a commenter brought
to the EPA's attention one affirmative defense provision in a SIP,
that of Texas. In the rulemaking docket, the comment letter may be
found at EPA-HQ-OAR-2012-0322-0621.
---------------------------------------------------------------------------

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

    In addition to being available in the docket, an electronic copy of
this SNPR will be available on the World Wide Web. Following signature
by the EPA Assistant Administrator, a copy of this SNPR will be posted
on the EPA's Web site, under ``State Implementation Plans to Address
Emissions During Startup, Shutdown and Malfunction,'' at http://www.epa.gov/air/urbanair/sipstatus. In addition to this notice, other
relevant documents are located in the docket, including a copy of the
Petition and a copy of the February 2013 proposal notice.

C. What should I consider as I prepare my comments?

    1. Submitting CBI. Do not submit this information to the EPA
through http://www.regulations.gov or email. Clearly mark the part or
all of the information that you claim to be CBI. For CBI information in
a CD that you mail to the EPA, mark the outside of the CD as CBI and
then identify electronically within the CD the specific information
that is claimed as CBI. In addition to one complete version of the
comment that includes information claimed as CBI, a copy of the comment
that does not contain the information claimed as CBI must be submitted
for inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2. Send or deliver information identified as CBI only to the following
address: Roberto Morales, OAQPS Document Control Officer (C404-02),
U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No.
EPA-HQ-OAR-2012-0322.
    2. Tips for preparing your comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

D. How is the preamble organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related
information?
    C. What should I consider as I prepare my comments?
    D. How is the preamble organized?
    E. What is the meaning of key terms used in this notice?
II. Overview of This SNPR
    A. How does this notice supplement or revise the EPA's already
proposed rulemaking to respond to the Petition?
    B. To which air agencies does this SNPR apply and why?
    C. What is the EPA proposing for any state that receives a
finding of substantial inadequacy and a SIP call?
    D. What are potential impacts on affected states and sources?
III. Background for This SNPR
    A. What did the Petitioner request?
    B. What did the EPA previously propose in this rulemaking with
respect to affirmative defense provisions in SIPs?
    C. What events necessitated this SNPR?
IV. What is the EPA proposing through this SNPR in response to the
Petitioner's request for rescission of the EPA policy on affirmative
defense provisions?
    A. Petitioner's Request
    B. The EPA's Proposed Revised Response
V. Revised SSM Policy on Affirmative Defense Provisions in SIPs
VI. Legal Authority, Process and Timing for SIP Calls
VII. What is the EPA proposing through this SNPR for each of the
specific affirmative defense provisions identified in the Petition
or identified independently by the EPA?
    A. Overview of the EPA's Evaluation of Specific Affirmative
Defense SIP Provisions
    B. Affected States in EPA Region III
    1. District of Columbia
    2. Virginia
    3. West Virginia
    C. Affected States in EPA Region IV
    1. Georgia
    2. Mississippi
    3. South Carolina
    D. Affected States in EPA Region V
    1. Illinois
    2. Indiana
    3. Michigan
    E. Affected States and Local Jurisdictions in EPA Region VI
    1. Arkansas
    2. New Mexico
    3. New Mexico: Albuquerque-Bernalillo County
    4. Texas
    F. Affected State in EPA Region VIII: Colorado
    1. Petitioner's Analysis
    2. The EPA's Prior Proposal
    3. The EPA's Revised Proposal
    G. Affected States and Local Jurisdictions in EPA Region IX
    1. Arizona
    2. Arizona: Maricopa County
    3. California: Eastern Kern Air Pollution Control District
    4. California: Imperial County Air Pollution Control District
    5. California: San Joaquin Valley Air Pollution Control District

    H. Affected States and Local Jurisdictions in EPA Region X
    1. Alaska
    2. Washington
    3. Washington: Energy Facility Site Evaluation Council
    4. Washington: Southwest Clean Air Agency
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children from
Environmental Health Risks and Safety Risks
    H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Determination Under Section 307(d)
    L. Judicial Review
IX. Statutory Authority

E. What is the meaning of key terms used in this notice?

    For the purpose of this notice, the following definitions apply
unless the context indicates otherwise:
    The terms Act or CAA or the statute mean or refer to the Clean Air
Act.
    The term affirmative defense means, in the context of an
enforcement proceeding, a response or defense put forward by a
defendant, regarding which the defendant has the burden of proof, and
the merits of which are independently and objectively evaluated in a
judicial or administrative proceeding. The term affirmative defense
provision means more specifically a state law provision in a SIP that
specifies particular criteria or preconditions that, if met, would
purport to preclude a court from imposing monetary penalties or other
forms of relief for violations of SIP requirements in accordance with
CAA section 113 or CAA section 304.
    The term Agency means or refers to the EPA. When not capitalized,
this term refers to an agency in general and not specifically to the
EPA.
    The terms air agency and air agencies mean or refer to states, the
District of Columbia, U.S. territories, local air permitting
authorities with delegated authority from the state, and tribal
authorities with appropriate CAA jurisdiction.
    The term automatic exemption means a generally applicable provision
in a SIP that would provide that if certain conditions existed during a
period of excess emissions, then those exceedances would not be
considered violations of the applicable emission limitations.
    The term director's discretion provision means, in general, a
regulatory provision that authorizes a state regulatory official
unilaterally to grant exemptions or variances from applicable emission
limitations or control measures, or to excuse noncompliance with
applicable emission limitations or control measures, which would be
binding on EPA and the public, in spite of SIP provisions that would
otherwise render such conduct by the source a violation.
    The term EPA refers to the United States Environmental Protection
Agency.
    The term excess emissions means the emissions of air pollutants
from a source that exceed any applicable SIP emission limitations.
    The term malfunction means a sudden and unavoidable breakdown of
process or control equipment.
    The term NAAQS means national ambient air quality standard or
standards. These are the national primary and secondary ambient air
quality standards that the EPA establishes under CAA section 109 for
criteria pollutants for purposes of protecting public health and
welfare.
    The term Petition refers to the petition for rulemaking titled,
``Petition to Find Inadequate and Correct Several State Implementation
Plans under Section 110 of the Clean Air Act Due to Startup, Shutdown,
Malfunction, and/or Maintenance Provisions,'' filed by the Sierra Club
with the EPA Administrator on June 30, 2011.
    The term Petitioner refers to the Sierra Club.
    The term shutdown means, generally, the cessation of operation of a
source for any reason.
    The term SIP means or refers to a State Implementation Plan.
Generally, the SIP is the collection of state statutes and regulations
approved by the EPA pursuant to CAA section 110 that together provide
for implementation, maintenance and enforcement of a national ambient
air quality standard (or any revision thereof) promulgated under
section 109 for any air pollutant in each air quality control region
(or portion thereof) within a state. In some parts of this notice,
statements about SIPs in general would also apply to tribal
implementation plans in general even though not explicitly noted.
    The term SNPR means or refers to this supplemental notice of
proposed rulemaking.
    The term SSM refers to startup, shutdown or malfunction at a
source. It does not include periods of maintenance at such a source. An
SSM event is a period of startup, shutdown or malfunction during which
there are exceedances of the applicable emission limitations and thus
excess emissions.
    The term SSM Policy refers to the cumulative guidance that the EPA
has issued concerning its interpretation of CAA requirements with
respect to treatment of excess emissions during periods of startup,
shutdown and malfunction at a source. The most comprehensive statement
of the EPA's SSM Policy prior to this proposed rulemaking is embodied
in a 1999 guidance document discussed in more detail in this proposal.
This specific guidance document is referred to as the 1999 SSM
Guidance. When finalized, this action will embody the EPA's updated SSM
Policy for all SIP provisions relevant to excess emissions during SSM
events.
    The term startup means, generally, the setting in operation of a
source for any reason.

II. Overview of This SNPR

A. How does this notice supplement or revise the EPA's already proposed
rulemaking to respond to the Petition?

    By notice published on February 22, 2013 (78 FR 12459), we proposed
to take action on a petition for rulemaking that the Sierra Club (the
Petitioner) filed with the EPA Administrator on June 30, 2011 (the
Petition). In that February 2013 proposal notice, we described and
proposed the EPA's response to each of the Petition's three
interrelated requests concerning the treatment of excess emissions from
sources during periods of SSM in provisions in SIPs. Among other
requests, the Petitioner requested that the EPA rescind its SSM Policy
element interpreting the CAA to allow SIPs to include affirmative
defense provisions for violations due to excess emissions during any
type of SSM events because the Petitioner contended there is no legal
basis for such provisions in SIPs.
    In this SNPR, we are supplementing and revising what we earlier
proposed as our response to the Petitioner's requests, but only to the
extent the requests narrowly concern affirmative defense provisions in
SIPs. We are not revising or seeking further comment on any other
aspects of the February 2013 proposed action.

    First, based on reexamination of statutory requirements in light of
a recent court decision, we are revising our interpretation of the CAA
concerning the issue of affirmative defense provisions in SIPs.
Accordingly we propose to grant the Petitioner's overarching request
that the EPA rescind its SSM Policy element that interpreted the CAA to
allow affirmative defense provisions in SIPs. Our proposal to grant the
Petition and to rescind our SSM Policy with respect to allowing
affirmative defenses in SIPs is a revision of the position we
previously proposed in the February 2013 proposal notice (i.e., to
grant in part and to deny in part the Petition on this request). The
basis for our proposed revision of the SSM Policy with respect to
affirmative defense provisions in SIPs and our revised response to the
Petition on this issue is provided in more detail in section IV of this
SNPR.
    Second, we propose to grant the Petitioner's request that the EPA
apply a revised interpretation to, and effectuate the removal of,
specific existing affirmative defense provisions in SIPs identified by
the Petitioner as inconsistent with the CAA. Accordingly, we propose to
grant the Petition with respect to specific existing affirmative
defense provisions in the SIPs of 13 states. For all 13 of these
states, we have already proposed SIP calls for one or more SIP
provisions in our February 2013 proposal notice, but note that we did
not at that time propose SIP calls for all affirmative defense
provisions in those states because some of the provisions appeared to
comply with our policy at the time of the proposal. What we are
proposing in this SNPR is to grant the Petition with respect to all of
the identified affirmative defenses in these states.
    Third, in addition to the specific affirmative defense provisions
identified by the Petitioner, the EPA has independently identified
other affirmative defense provisions in SIPs and is proposing in this
SNPR to take action with respect to these SIP provisions as well. The
newly identified affirmative defense provisions are found in six
states' SIPs. For two of the states whose SIPs include newly identified
affirmative defense provisions, California and Texas, we did not
propose a SIP call in the February 2013 proposal notice, as those
states were not identified in the Petition. For the other four states
(New Mexico, South Carolina, Washington and West Virginia), we did
propose a SIP call in the February 2013 proposal notice for one or more
SIP provisions, but at that time we did not propose a SIP call for all
affirmative defense provisions identified in the Petition or for any
affirmative defense provisions that were not identified in the
Petition. The EPA is now including these six states' affirmative
defense provisions in order to provide comprehensive guidance to all
states concerning affirmative defense provisions in SIPs and to avoid
confusion that may arise due to recent court decisions relevant to such
provisions under the CAA. Section VII of this SNPR presents the EPA's
analysis of each of the affirmative defense SIP provisions at issue.
    Fourth, for each of the states where the EPA proposes to grant the
Petition concerning specific affirmative defense provisions or to take
action on such provisions that EPA has independently identified, the
Agency also proposes to find that the existing SIP provision at issue
is substantially inadequate to meet CAA requirements and thus under CAA
authority proposes to issue a ``SIP call'' with respect to that SIP
provision. For those states for which the EPA promulgates a final
finding of substantial inadequacy and a SIP call, the EPA has in the
February 2013 notice proposed a schedule allowing the states 18 months
within which to submit a corrective SIP revision. In section II.C of
this SNPR, the EPA accordingly proposes that this schedule apply to all
SIP provisions identified as substantially inadequate in this
supplemental proposal.
    What EPA proposes in this SNPR supersedes the February 2013
proposal only insofar as the SNPR supplements or revises the February
2013 proposal notice with respect to the issues related to affirmative
defense provisions in SIPs. After evaluation of public comment on this
SNPR, the EPA intends to complete its action on the Petition in one
final action, addressing together the issues discussed in the February
2013 proposal notice and in this SNPR.
    This action provides the EPA an opportunity to invite public
comment on our SSM Policy specific to affirmative defenses. In this
SNPR, the EPA is supplementing and revising its proposed responses to
the issues in the Petition only to the extent they concern affirmative
defenses in SIPs, and the EPA solicits comment on its proposed
responses. We note that an opportunity to comment on the EPA's proposed
responses to other issues raised in the Petition was provided earlier,
in the comment period initiated by our February 2013 proposal notice.
Therefore, comments received on this SNPR will be considered germane
only to the extent they pertain specifically to the subject of
affirmative defenses in SIPs. The EPA does not intend to consider any
further comments related to other aspects of the prior proposal, as
those other aspects are not being reopened in this supplemental
proposal. Moreover, because the EPA's interpretation of the CAA with
respect to the legal basis for affirmative defense provisions in SIPs
has changed, the EPA does not intend to respond to comments previously
submitted on the February 2013 proposal notice to the extent they apply
to issues related to affirmative defense provisions in SIPs generally,
or to issues related to specific affirmative defense provisions
identified by the Petitioner, as those comments will be moot if the EPA
finalizes its action as discussed in this SNPR.
    Through our proposed rulemaking action, which includes the February
2013 proposal notice and this SNPR, the EPA is clarifying, restating
and revising its SSM Policy. When finalized, this action will embody
the EPA's updated SSM Policy for all SIP provisions relevant to excess
emissions during SSM events. The final action will also clarify for the
affected states how they can resolve the identified deficiencies in
their SIPs, as well as provide all air agencies guidance on SSM issues
as they further develop their SIPs in the future.

B. To which air agencies does this SNPR apply and why?

    In general, the EPA's action on the Petition in this rulemaking may
be of interest to all air agencies because the EPA is significantly
clarifying, restating and revising its longstanding SSM Policy with
respect to what the CAA requires concerning SIP provisions relevant to
excess emissions during periods of startup, shutdown and malfunction.
For example, the EPA is proposing in this SNPR to grant the
Petitioner's request that the EPA rescind its interpretation of the CAA
that would allow affirmative defense provisions in SIPs.
    More specifically, this SNPR is directly relevant to the states for
which we are now proposing SIP calls on the basis that those SIP
provisions are inconsistent with CAA requirements because they include
affirmative defenses. The EPA is proposing SIP calls with respect to
affirmative defense SIP provisions in each of the 17 states (for
provisions applicable in 23 statewide and local jurisdictions \3\ and

no tribal areas) that show either ``Grant'' or ``SIP call'' as the
proposed action under table 1, ``List of States With Affirmative
Defense SIP Provisions for Which the EPA Proposes to Grant the Petition
or to Address Such Provisions Identified by the EPA.''
---------------------------------------------------------------------------

    \3\ The state has the primary responsibility to implement SIP
obligations, pursuant to CAA section 107(a). However, as CAA section
110(a)(2)(E) allows, a state may authorize and rely on a local or
regional government, agency or instrumentality to carry out the SIP
or a portion of the SIP within its jurisdiction. As a result, some
of the SIP provisions at issue in this rulemaking apply to specific
portions of a state. Thus, in certain states, submission of a
corrective SIP revision may involve rulemaking in more than one
jurisdiction.

   Table 1--List of States With SIP Affirmative Defense Provisions for
     Which the EPA Proposes To Grant the Petition or To Address Such
                    Provisions Identified by the EPA
------------------------------------------------------------------------
                                  Proposed action \a\ with respect to
                                    affirmative defenses applicable
                             -------------------------------------------
 EPA region       State                              . . . for startup,
                                    . . . for         shutdown or other
                                  malfunctions?            modes?
------------------------------------------------------------------------
III........  District of      Grant...............  Not applicable.
              Columbia.
             Virginia.......  Grant...............  Not applicable.
             West Virginia..  SIP call (new)......  Not applicable.
IV.........  Georgia........  Grant...............  Grant.
             Mississippi....  Grant...............  Grant.
             South Carolina.  SIP call (new)......  Not applicable.
V..........  Illinois.......  Grant...............  Not applicable.
             Indiana........  Grant...............  Not applicable.
             Michigan.......  Not applicable......  Grant.
VI.........  Arkansas.......  Grant...............  Not applicable.
             New Mexico.....  Grant (for state)     Grant (for state)
                               and SIP call (new     and SIP call (new
                               for Albuquerque-      for Albuquerque-
                               Bernalillo County).   Bernalillo County).
             Texas..........  SIP call (new)......  Not applicable.
VIII.......  Colorado.......  Grant (change from    Grant.
                               February 2013
                               proposal to Deny).
IX.........  Arizona........  Grant (for state and  Grant (for state and
                               for Maricopa          for Maricopa
                               County; change from   County).
                               February 2013
                               proposal to Deny).
             California.....  SIP call (new for     Not applicable.
                               Eastern Kern APCD,
                               new for Imperial
                               County APCD and new
                               for San Joaquin
                               Valley APCD).
X..........  Alaska.........  Grant...............  Grant.
             Washington.....  Grant (for state)     Grant (for state)
                               and SIP call (new     and SIP call (new
                               for Energy Facility   for Energy Facility
                               Site Evaluation       Site Evaluation
                               Council and new for   Council and new for
                               Southwest Clean Air   Southwest Clean Air
                               Agency).              Agency).
------------------------------------------------------------------------
\a\ The proposed action under the SNPR is the same action as proposed in
  February 2013 unless noted in this table to be either new or a change.
  The entry ``SIP call'' indicates that the affirmative defense
  provision was identified by the EPA independently and was not included
  in the Petition.

    For each state for which the proposed action in this SNPR is either
``Grant'' or ``SIP call,'' the EPA proposes to find that specific
affirmative defense provisions in the state's SIP are substantially
inadequate to meet CAA requirements for the reason that these
provisions are inconsistent with the CAA.
    For each state for which the proposed action on the Petition is
either ``Grant'' or ``SIP call,'' the EPA is further proposing in this
SNPR to call for a SIP revision as necessary to remove the identified
affirmative defense provisions from the SIP at issue. The EPA's revised
proposal under this SNPR concerning affirmative defense provisions in
specific states' SIPs is summarized in section VII of this SNPR.
    The SIP calls proposed in this SNPR apply only to those specific
provisions, and the scope of each of the SIP calls would be limited to
those provisions. This SNPR proposes SIP calls specific to affirmative
defense provisions in 17 states. The 17 states include two states for
which we are newly proposing SIP calls: California and Texas. For the
remaining 15 states, we already proposed SIP calls in the February 2013
proposal notice for one or more SSM-related provisions, although in
this SNPR we are in some cases proposing SIP calls for additional
affirmative defense provisions and in some cases proposing SIP calls on
a basis that has changed from that of our earlier proposal.
    For Jefferson County, Kentucky, the affirmative defense provisions
for which we proposed in February 2013 to grant the Petition were
subsequently removed from the SIP.\4\ Thus, under this SNPR we are
proposing instead to deny the Petition, and we are no longer proposing
a SIP call with respect to affirmative defense provisions for this area
because the revision has already been made by the state and approved
into the SIP by the EPA. Note, however, that we already proposed a SIP
call for Kentucky, for other provisions (i.e., provisions not
concerning affirmative defenses in Jefferson County), and this SNPR
does not change what we proposed in the February 2013 proposal notice
for the other Kentucky SIP provisions.
---------------------------------------------------------------------------

    \4\ See, Approval and Promulgation of Implementation Plans;
Kentucky; Approval of Revisions to the Jefferson County Portion of
the Kentucky SIP; Emissions During Startups, Shutdowns, and
Malfunctions, 79 FR 33101 (June 10, 2014).
---------------------------------------------------------------------------

C. What is the EPA proposing for any state that receives a finding of
substantial inadequacy and a SIP call?

    If the EPA finalizes a finding of substantial inadequacy and issues
a SIP call for any state, the EPA's final action will establish a
deadline by which the state must make a SIP submission to rectify the
deficiency. Pursuant to CAA section 110(k)(5), the EPA has authority to
set a SIP submission deadline that does not exceed 18 months from the
date the Agency notifies the state of the inadequacy. The EPA intends
to disseminate notice of any final findings of substantial inadequacy
and the issuance of any SIP call promptly after the Administrator signs
the final notice.
    The EPA has already proposed to provide the full 18-month period

permissible by statute to give states sufficient time to make
appropriate SIP revisions following their own SIP development process.
Such a schedule will allow for the necessary SIP development process to
correct the deficiencies yet still achieve the necessary SIP
improvements as expeditiously as practicable.
    Accordingly, the EPA is proposing to establish the due date for the
state to respond to the SIP call to be 18 months after the date on
which the Administrator signs the notice and disseminates it to the
states. If, for example, the EPA's final findings are signed and
disseminated in May 2015, then the SIP submission deadline for each of
the states subject to the final SIP call would fall 18 months later, in
November 2016. Thereafter, the EPA will review the adequacy of that new
SIP submission in accordance with the CAA requirements of sections
110(a), 110(k), 110(l) and 193, including the EPA's interpretation of
the CAA reflected in the SSM Policy as clarified and updated through
this rulemaking, in notice-and-comment rulemaking on the individual SIP
submissions.

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

    The EPA's February 2013 proposal notice included an explanation of
the potential impacts on states and sources of the SIP calls proposed
in that notice. That explanation is repeated here, with additions to
encompass and highlight the potential impacts of the proposed further
revision of the SSM Policy to disallow affirmative defense provisions
for malfunctions, the proposed revisions to the earlier-proposed SIP
calls and the additional SIP calls proposed in this notice. The
issuance of a SIP call would require an affected state to take one or
more actions to revise its SIP. These actions are described below,
followed by a description of how those actions by the state may, in
turn, affect sources. The states that would receive a SIP call will in
general have options as to exactly how to revise their SIPs. In
response to a SIP call, a state retains broad discretion concerning how
to revise its SIP, so long as that revision is consistent with the
requirements of the CAA. The EPA's interpretation of those requirements
will be embodied in the revised SSM Policy, which will be stated in the
Federal Register notice for the final action in this rulemaking.
    If the final SIP call identifies an automatic exemption provision
in a SIP as contrary to the CAA, that provision would have to be
removed entirely. An affected source could no longer depend on the
automatic exemption to avoid all liability for excess emissions. If the
final SIP call identifies an affirmative defense provision in a SIP as
contrary to the CAA, that provision would have to be removed entirely.
An affected source could no longer depend on the affirmative defense to
shield it from monetary penalties assessed by a court for excess
emissions; however, even in the absence of such affirmative defense
provision in the SIP, a court may nevertheless decide not to assess
monetary penalties in light of the effort by the source to avoid and/or
minimize the excess emissions. Some other provisions, for example a
problematic enforcement discretion provision, could be either removed
entirely from the SIP or retained if revised appropriately in
accordance with the EPA's interpretation of the CAA as described in the
EPA's SSM Policy restatement in the Federal Register notice for the
final rulemaking. The EPA notes that if a state removes a SIP-called
provision that pertains to the exercise of enforcement discretion
rather than amending the provision to remove any implication that the
provision limits EPA or citizen suits, this removal would not bar the
ability of the state to apply discretion in its own enforcement program
but rather would make the exercise of such discretion case-by-case in
nature.
    In addition, affected states may choose to consider reassessing
particular emission limitations, for example to determine whether those
limits can be revised such that well-managed emissions during planned
operations such as startup and shutdown would not exceed the revised
emission limitation, while still protecting air quality. Such a
revision of an emission limitation may need to be submitted as a SIP
revision for EPA approval if the existing limit to be changed is
already included in the SIP or if the existing SIP relies on the
particular existing emission limit to meet a CAA requirement. In such
instances, the EPA would review the SIP revision for consistency with
all applicable CAA requirements. A state that chooses to revise
particular emission limitations, in addition to removing the aspect of
the existing provision that is inconsistent with CAA requirements,
could include those revisions in the same SIP submission that addresses
the SSM provisions identified in the SIP call, or it could submit them
separately.
    The implications for a regulated source in a given state, in terms
of decisions it may make to change its equipment or practices in order
to operate with emissions that comply with the revised SIP, will depend
on the nature and frequency of the source's SSM events and how the
state has chosen to revise the SIP to address excess emissions during
SSM events. The EPA recognizes that after all the responsive SIP
revisions are in place and are being implemented by the states, some
sources may be required by the state to, or may have strong business
reasons to, modify their physical equipment or operating practices.
These changes could be aimed at improving the effectiveness of the
emission control systems when operating as designed during startup and
shutdown, increasing the durability of components to reduce the
occurrence of malfunctions, and/or improving monitoring systems to
detect and manage malfunctions promptly. If a state merely removes an
exemption, affirmative defense provision, or impermissible enforcement
discretion provision, an affected source may need to, or may rationally
choose to, make changes of these types to better control emissions so
as to comply with existing emission limits continuously and thereby
reduce the risk of enforcement action. If the state establishes
alternative emission limits for startup and shutdown operation, the
source will need to meet these limits, but the required changes by the
source, if any, could be less extensive and cost less.
    Because of the diversity of the SIP provisions identified in our
February 2013 proposal notice and in this supplemental proposal, the
diversity of potentially affected sources, the unknown nature of the
states' responses to the SIP calls, and the fact that because of
existing automatic exemptions many instances of excess emissions have
not routinely been reported to air agencies or the EPA, the EPA is
unable to estimate the number, nature and overall cost of the changes
that emission sources may ultimately make as an indirect result of the
proposed SIP calls. To date, the EPA's review of the public comments
received on the February 2013 proposal indicates that the information
in those public comments is insufficient to allow the EPA to make such
estimates.
    This supplemental proposal concerns only affirmative defense
provisions. The EPA's longstanding interpretation of the CAA as
reflected in the existing SSM Policy does not allow a SIP to contain a
director's discretion provision for excess emissions during SSM events
including malfunctions, an automatic exemption for excess emissions
during SSM events including malfunctions, or an enforcement discretion
provision that purports to restrict citizen suits or federal personnel.
The EPA is not

proposing to change those longstanding aspects of the SSM Policy. In
our February 2013 proposal notice, we proposed to interpret the CAA to
disallow affirmative defense provisions applicable to startup and
shutdown, and in this SNPR we are proposing to interpret the CAA to
further disallow affirmative defense provisions applicable to
malfunctions. However, a state that receives a SIP call that includes a
requirement to remove an affirmative defense for excess emissions would
retain its ability to apply discretion in its enforcement program. Such
enforcement discretion could be exercised case-by-case, or the SIP may
include a provision that directs state personnel in the exercise of
enforcement discretion. The criteria in an enforcement discretion
provision could resemble the criteria previously recommended by the EPA
for an affirmative defense provision for malfunctions. The enforcement
discretion provision cannot apply to anyone other than state personnel.
For example, the enforcement decisions of state personnel cannot define
what is or is not a violation and cannot purport to limit or bar the
exercise of enforcement discretion by the EPA or other parties pursuant
to the citizen suit provision. An affected state could include an
appropriate enforcement discretion provision in the same SIP submission
that addresses the SSM provisions identified in the SIP call, or it
could submit it separately.
    Similar to the dependent nature of the potential impacts of our
proposals in the aggregate as described above, the implications of the
specific change being proposed in this notice--to disallow affirmative
defense provisions for malfunctions--for a regulated source in a given
state, in terms of whether and how the source would potentially have
incentives to change its equipment or practices, will depend on the
nature and frequency of the source's malfunction events and on how the
state has chosen to revise the SIP to address excess emissions during
malfunction events. After responsive SIP revisions are in place and are
being implemented by the states, some sources may have strong
incentives to take steps to increase the durability of components and
monitoring systems to detect and manage malfunctions promptly, as a
court may take such steps into consideration when determining a remedy
should there be an enforcement action against excess emissions that
have occurred during a malfunction. For the same reasons as cited
above, the EPA is unable to estimate the number, nature and overall
cost of the changes that emission sources may ultimately make as an
indirect result of the revised and additional SIP calls proposed in
this SNPR.
    The EPA Regional Offices will work with states to help them
understand their options and the potential consequences for sources as
the states prepare their SIP revisions in response to the SIP calls.
    The EPA believes that among the impacts on states and their
residents of the SIP calls proposed in the February 2013 proposal
notice and in this SNPR will be reduced aggregate emissions from
industrial sources and improved air quality. For the same reasons that
we are unable to estimate the number, nature and overall cost of the
changes that sources may ultimately make as an indirect result of the
proposed SIP calls, we are unable to estimate the total emission
reduction that will be achieved for any particular pollutant or how
those reductions will be distributed across the affected states and
communities. The EPA believes that it is obligated and authorized to
issue the proposed SIP calls to remove affirmative defense provisions
even though the EPA is unable to estimate the number, nature, cost and
resulting emission reductions that will indirectly result from the
removal of such provisions from the affected SIPs.

III. Background for This SNPR

A. What did the Petitioner request?

    The Petitioner submitted the Petition to the EPA on June 30, 2011.
In the Petition, the Petitioner requested that the EPA address various
types of alleged deficiencies in the Agency's SSM Policy. The SSM
Policy provides EPA guidance to states with respect to SIP provisions
that apply to excess emissions from sources that occur during SSM
events. As described in the February 2013 proposal notice, the
Petitioner included three interrelated overarching requests concerning
the treatment in SIPs of excess emissions from sources during SSM
events. In addition, the Petitioner requested that the EPA evaluate
specifically identified existing provisions in the SIPs of 39 states
that the Petitioner alleged are inconsistent with CAA requirements and
with the EPA's interpretations of the CAA in the SSM Policy. The
Petitioner identified the specific provisions and explained the basis
for its belief that the provisions in question violate one or more
requirements of the CAA.
    First, the Petitioner argued that any SIP provision providing an
affirmative defense for monetary penalties for excess emissions
applicable in judicial proceedings is contrary to the CAA. The
Petitioner based its overarching arguments concerning the legality of
affirmative defense provisions in SIPs upon the explicit statutory
provisions of CAA sections 113 and 304. Thus, the Petitioner advocated
that the EPA should rescind its interpretation of the CAA expressed in
the SSM Policy that allows appropriately drawn affirmative defense
provisions in SIPs. The Petitioner made no distinction between
affirmative defenses for excess emissions related to malfunction and
affirmative defenses for excess emissions related to startup or
shutdown. See section IV of our February 2013 proposal notice for the
EPA's proposed response at that time concerning the issue of
affirmative defense provisions in SIPs. As explained in section III.B
of this SNPR, the EPA did make such distinction in its proposed
response in the February 2013 proposal notice, then reasoning that
affirmative defense provisions were appropriate for violations due to
malfunction events. The issue of affirmative defense provisions in SIPs
is the focus of this SNPR, and the EPA is herein proposing to revise
its prior proposed action on this issue.
    Second, the Petitioner argued that many existing SIPs contain
impermissible provisions,\5\ including automatic exemptions from
applicable emission limitations during SSM events, director's
discretion provisions that provide discretionary exemptions from
applicable emission limitations during SSM events, enforcement
discretion provisions that appear to bar enforcement by the EPA or
citizens for such excess emissions, and inappropriate affirmative
defense provisions that are not consistent with the CAA or the
recommendations in the EPA's SSM Policy. The Petitioner identified
specific provisions in SIPs of 39 states that it considered
inconsistent with the CAA and explained the basis for its objections to
the provisions. Among the alleged deficient provisions were many that
function as affirmative defense provisions, regardless of whether that
specific term is used in the state law or regulation at issue and
regardless of whether the EPA

previously explicitly evaluated the provision as an affirmative defense
as described in the 1999 SSM Guidance. See section V and section IX of
our February 2013 proposal notice for the EPA's prior proposed
responses concerning the various alleged SIP deficiencies; only issues
related to affirmative defense provisions are addressed in this SNPR,
and the EPA is proposing to revise its prior proposed action only with
respect to specific affirmative defense SIP provisions.
---------------------------------------------------------------------------

    \5\ The term ``impermissible provision'' as used throughout this
SNPR is generally intended to refer to a SIP provision that the EPA
believes to be inconsistent with requirements of the CAA. As
described later in this SNPR (see section VII.A), the EPA is
proposing to find a SIP ``substantially inadequate'' to meet CAA
requirements where the EPA determines that a specific SIP provision
is impermissible under the CAA.
---------------------------------------------------------------------------

    Third, the Petitioner argued that the EPA should not rely on
interpretive letters from states to resolve any ambiguity, or perceived
ambiguity, in state regulatory provisions in SIP submissions. The
Petitioner reasoned that all regulatory provisions should be clear and
unambiguous on their face and that any reliance on interpretive letters
to alleviate facial ambiguity in SIP provisions can lead to later
problems with compliance and enforcement. Extrapolating from several
instances in which the basis for the original approval of a SIP
provision related to excess emissions during SSM events was arguably
not clear, the Petitioner contended that the EPA should never use
interpretive letters to resolve such ambiguities. See section VI of our
February 2013 proposal notice for the EPA's proposed response
concerning the issue of interpretive letters; that issue is not further
addressed in this SNPR and the EPA is seeking no additional comment on
this issue.
    Among the fundamental concerns raised by the Petitioner was the
claim that the EPA's SSM Policy is inconsistent with statutory
requirements because the Agency interprets the CAA to authorize states
to create SIP provisions that provide an affirmative defense for
qualifying sources to assert in the event of violations for excess
emissions that occur during SSM events. Even though the EPA interpreted
the CAA to allow narrowly drawn affirmative provisions in SIPs that are
consistent with recommended criteria intended to assure that states
include appropriate limitations and conditions for affirmative
defenses, the Petitioner objected to any such provisions. The
Petitioner argued that any affirmative defense that purports to
eliminate or alter the jurisdiction of federal courts to assess
monetary penalties or any other form of relief for violations of SIP
emission limits is contrary to the requirements of the CAA. In other
words, no matter how narrowly drawn and no matter what the limitations
or conditions for the affirmative defense may be, the Petitioner argued
that no such affirmative defenses are consistent with CAA requirements
for SIP provisions.
    In addition, the Petitioner identified specific existing provisions
in the SIPs of 14 states that were structured or characterized as
affirmative defenses, regardless of whether the provisions in question
were consistent with the EPA's SSM Policy as explained in the 1999 SSM
Guidance. The Petitioner contended that none of these identified
provisions are consistent with CAA requirements because they improperly
purport to shield sources from liability for violations of SIP emission
limitations through various mechanisms. The Petitioner argued that such
provisions are therefore inconsistent with sections 113 and 304 and the
fundamental enforcement structure of the CAA created by Congress. Even
if the provisions were not otherwise contrary to CAA requirements, the
Petitioner argued, each of the identified affirmative defense
provisions is also inconsistent in one or more ways with the EPA's own
interpretation of the CAA provided in the 1999 SSM Guidance. For
example, some of the identified provisions do not apply only to
monetary penalties and purport to bar injunctive relief as well, some
of the provisions do not require sources to qualify for an affirmative
defense through criteria comparable to those recommended by the EPA,
and some of the provisions appear to make state personnel the
unilateral final arbiters of whether a source qualified for an
affirmative defense rather than requiring that this be determined by a
trier of fact in a judicial enforcement proceeding, thereby purporting
to preclude enforcement by the EPA under section 113 or by others
pursuant to the citizen suit authority of section 304.

B. What did the EPA previously propose in this rulemaking with respect
to affirmative defense provisions in SIPs?

    The EPA published its proposed response to the Petition on February
22, 2013. In that proposal, the EPA explained the claims asserted by
the Petitioner, articulated its evaluation of those claims, and
proposed to take actions with respect to each of the overarching and
specific claims. The proposal addressed a number of interrelated issues
concerning the proper treatment of excess emissions during SSM events
in SIP provisions. A key component of the proposal, however, was the
EPA's evaluation of the Petitioner's claims concerning affirmative
defense provisions in SIPs.
    With respect to the Petitioner's overarching claim that the EPA's
interpretation of the CAA in the SSM Policy permitting states to have
affirmative defenses in SIP provisions is in error, the EPA proposed to
deny in part and to grant in part. The EPA proposed to deny the
Petitioner's claim with respect to affirmative defenses applicable to
malfunction events, on the theory that the CAA allows such provisions
so long as they are sufficiently narrowly drawn. The EPA reasoned that
such provisions are appropriate for violations due to genuine
malfunction events, in order to resolve the inherent tension between
the fact that the CAA requires that SIP emission limitations must apply
continuously and the fact that even properly designed, maintained and
operated sources may sometimes have difficulty meeting emission
limitations for reasons beyond their control. By contrast, the EPA
proposed to grant the Petitioner's claim with respect to affirmative
defenses applicable to planned events such as startup and shutdown.
This was a change from the EPA's interpretation of the CAA in the 1999
SSM Guidance, in which the EPA previously recommended that states could
elect to create such affirmative defense provisions for startup and
shutdown events, so long as the provisions were narrowly drawn and
consistent with the recommended criteria to assure that they meet CAA
requirements. The EPA's evaluation of the Petition and the statutory
basis for affirmative defense provisions caused the Agency to
reconsider the appropriateness of affirmative defense provisions
applicable during startup and shutdown, which are ordinary modes of
operation that are generally predictable and within the control of the
source. As explained in more detail in the February 2013 proposal
notice, the EPA's evaluation in light of then recent case law indicated
that providing affirmative defenses applicable during planned events
such as startup and shutdown was not consistent with the EPA's
interpretation of the CAA to support such provisions for malfunctions
and was tantamount to allowing sources to be shielded from monetary
penalties for violations due to conduct that is predictable and within
their control.\6\
---------------------------------------------------------------------------

    \6\ Some commenters on the February 2013 proposal notice focused
great attention on whether startup and shutdown are modes of
``normal'' source operation. The EPA assumes that every source is
designed, maintained and operated with the expectation it will at
least occasionally start up and shut down, and thus these modes of
source operation are ``normal'' in the sense that they are to be
expected. The EPA used this term in the ordinary sense of the word
to distinguish between such predictable modes of source operation
and genuine ``malfunctions,'' which are by definition supposed to be
unpredictable and unforeseen events and which could not have been
precluded by proper source design, maintenance and operation.

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

    With respect to the specific affirmative defense provisions
identified by the Petitioner as deficient, the EPA evaluated each of
the provisions to determine whether they were consistent with the EPA's
interpretation of the CAA concerning such provisions at the time. This
evaluation included examination of the specific provisions in light of
the EPA's interpretations of the CAA and recommendations in the 1999
SSM Guidance, as updated in the February 2013 proposal notice (e.g.,
the revision to the EPA's guidance concerning affirmative defenses for
single sources with the potential to cause exceedances of the NAAQS).
As a result, the EPA proposed to deny the Petition with respect to the
claims concerning affirmative defense provisions to the extent
applicable to malfunction events in three jurisdictions: (i) Arizona;
(ii) Maricopa County, Arizona; and (iii) Colorado. The EPA proposed to
deny the Petition with respect to these affirmative defense provisions
to the extent applicable to malfunction events because at that time the
EPA believed them to be consistent with the CAA and EPA guidance in the
1999 SSM Policy. The EPA proposed to grant the Petition with respect to
the claims concerning affirmative defense provisions in the following
jurisdictions: (i) Alaska; (ii) Arizona (affirmative defense for
startup and shutdown only); (iii) Maricopa County, Arizona (affirmative
defense for startup and shutdown only); (iv) Arkansas; (v) Colorado
(affirmative defense for startup and shutdown only); (vi) District of
Columbia; (vii) Illinois; (viii) Indiana; (ix) Jefferson County,
Kentucky; \7\ (x) Michigan; (xi) Mississippi; (xii) New Mexico; (xiii)
Virginia; and (xiv) Washington. The EPA's evaluation of the specific
provisions in these states identified a variety of deficiencies as
explained in more detail in section IX of the February 2013 proposal
notice. In general, the EPA considered these provisions deficient
because they extended not only to monetary penalties but also to
injunctive relief, because they had insufficient criteria to assure
that they were sufficiently narrowly drawn, because they extended to
events that were not malfunctions, or because of some combination of
these concerns.
---------------------------------------------------------------------------

    \7\ The EPA notes that the state of Kentucky has now revised the
SIP provisions applicable to Jefferson County (Louisville) and
eliminated the SIP inadequacies identified in the February 2013
proposal notice. The EPA has already approved the necessary SIP
revisions. See 79 FR 33101 (June 10, 2014). Accordingly, the EPA's
final action on the Petition will not need to include a finding of
substantial inadequacy and SIP call for Jefferson County, Kentucky.
The recently approved revision did not create an affirmative defense
provision, so there is no need to readdress this issue in this
jurisdiction.
---------------------------------------------------------------------------

C. What events necessitated this SNPR?

    Subsequent to EPA's issuance of the February 2013 proposal, a
federal court ruled that CAA sections 113 and 304 preclude EPA
authority to create affirmative defense provisions in the Agency's own
regulations imposing emission limits on sources, because such
provisions purport to alter the jurisdiction of federal courts to
assess liability and impose penalties for violations of those limits in
private civil enforcement cases. The U.S. Court of Appeals for the
District of Columbia Circuit issued that decision in NRDC v. EPA on
April 18, 2014.\8\ The EPA believes that the reasoning of the court in
that decision indicates that the states, like the EPA, have no
authority in SIP provisions to alter the jurisdiction of federal courts
to assess penalties for violations of CAA requirements through
affirmative defense provisions. If states lack authority under the CAA
to alter the jurisdiction of the federal courts through affirmative
defense provisions in SIPs, then the EPA lacks authority to approve any
such provision in a SIP.
---------------------------------------------------------------------------

    \8\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
---------------------------------------------------------------------------

    The court's decision in NRDC v. EPA \9\ pertained to a challenge to
the EPA's National Emission Standards for Hazardous Air Pollutants
(NESHAP) regulations issued pursuant to CAA section 112 to regulate
hazardous air pollutants from sources that manufacture Portland
cement.\10\ In addition to imposing specific emission limitations for
the relevant pollutants from the affected sources, the EPA also created
an affirmative defense that sources could assert in judicial
enforcement proceedings for violations due to excess emissions that
occur during qualifying malfunction events. The affirmative defense
provision in the Portland cement NESHAP required the source to prove,
by a preponderance of the evidence in an enforcement proceeding, that
the source met specific criteria concerning the nature of the event and
the source's conduct before, during and after the event. The EPA notes
that these specific criteria required to establish the affirmative
defense in the Portland cement NESHAP are functionally the same as the
criteria that the EPA previously recommended to states for SIP
provisions in the 1999 SSM Guidance and that the EPA explicitly
repeated these same recommended criteria to states in the February 2013
proposal notice. In addition, the EPA provided sample regulatory text
in the February 2013 proposal notice drawn from a comparable NESHAP
that the EPA recently promulgated for another source category, to
illustrate how states might elect to word appropriate affirmative
defense provisions in SIPs.\11\ In other words, the affirmative defense
provision at issue in the NRDC v. EPA case was essentially equivalent
to the type of provision, both conceptually and in terms of specific
regulatory language, which the EPA would previously have considered
consistent with CAA requirements for affirmative defense provisions for
malfunction events in SIPs.
---------------------------------------------------------------------------

    \9\ Id.
    \10\ The NESHAP promulgated after the 1990 CAA Amendments are
also referred to as ``maximum achievable control technology'' or
``MACT'' standards.
    \11\ See February 2013 proposal notice, 78 FR 12459 at 12478-80.
---------------------------------------------------------------------------

    The EPA believes that the opinion of the court in NRDC v. EPA has
significant impacts on the Agency's SSM Policy and on the positions
that the EPA took in the February 2013 proposal notice with respect to
issues related to affirmative defenses. Section IV of the February 2013
proposal notice describes in detail the EPA's prior evaluation of the
Petition with respect to the overarching issue of affirmative defense
provisions in SIPs. In general, the EPA proposed: (i) To deny the
request to rescind the SSM Policy with respect to interpreting the CAA
to allow states to elect to include appropriately tailored affirmative
defense provisions for violations due to excess emissions during
periods of malfunction; and (ii) to grant the request to rescind the
SSM Policy with respect to affirmative defense provisions for
violations due to excess emissions during periods of startup and
shutdown. Consistent with this interpretation of the CAA, the EPA
previously proposed to revise its SSM Policy to clarify that states
could elect to create affirmative defenses in SIP provisions only for
malfunction events, and so long as such provisions were narrowly drawn,
as recommended in the EPA's guidance. Even these more narrowly defined
affirmative defense provisions are no longer consistent with CAA
requirements under the reasoning adopted by the court in NRDC v. EPA.
    In addition, section IX of the February 2013 proposal notice
provided the EPA's evaluation of each of the specific

SIP provisions identified by the Petitioner and proposed to take action
on them, in accordance with EPA's interpretation of the CAA for such
provisions at that time. These SIP provisions included affirmative
defense provisions of various types, including some that the Agency had
previously approved as consistent with its interpretation of the CAA in
the 1999 SSM Guidance. The EPA evaluated these provisions on a case-by-
case basis and proposed either to grant or to deny the Petition with
respect to each provision, consistent with the EPA's then current
interpretation of the CAA for such provisions.
    The recent decision by the U.S. Court of Appeals for the District
of Columbia Circuit in NRDC v. EPA has called into question the legal
basis for affirmative defense provisions applicable to violations of
CAA requirements. The reasoning used by that court, as logically
extended to SIP provisions, indicates that neither states nor the EPA
have authority to alter either the rights of other parties to seek
relief or the jurisdiction of the federal courts to impose relief for
violations of CAA requirements in SIPs, including the courts' power to
restrain violations, to require compliance, and to assess monetary
penalties for any violations in accordance with factors provided in CAA
section 113(e)(1).
    The EPA acknowledges that its SSM Policy since the 1999 SSM
Guidance has interpreted the CAA in such a way that states could in
effect alter the jurisdiction of federal courts to assess monetary
penalties under certain conditions through creation of affirmative
defenses. In other words, even though Congress explicitly empowered
federal courts to assess monetary penalties for a CAA violation, an
affirmative defense could, contrary to the statute, limit the ability
of a court to do so. The EPA believes that the court's decision in NRDC
v. EPA compels the Agency to reevaluate its interpretation of the CAA
and its proposed action on the Petition concerning affirmative defense
provisions in SIPs. As a result, in this SNPR we are revising what we
previously proposed as our response to the Petition, but only to the
extent relevant to the issue of affirmative defense provisions in SIPs.
In section III.C of this SNPR, the EPA explains in detail why the
court's interpretation of relevant CAA provisions indicates that states
do not have authority to create, and thus the EPA does not have
authority to approve, SIP provisions that include an affirmative
defense that would operate to alter the jurisdiction of federal courts
to assess penalties or other forms of relief authorized in sections 113
and 304. In section VII of this SNPR, the EPA explains how the decision
affects the February 2013 proposal with respect to specific provisions
in the SIPs of particular states. In section VII of this SNPR, the EPA
also includes affirmative defense provisions found in six states' SIPs
that the Agency has identified independently, and the EPA explains why
each of these additional provisions fails to meet CAA requirements and
thus necessitates a finding of substantial inadequacy and a SIP call as
well. The EPA is including the additional provisions to assure that it
provides comprehensive guidance with respect to this issue to all
states and to alleviate confusion that may arise as a result of recent
regulatory actions and litigation concerning affirmative defense
provisions.

IV. What is the EPA proposing through this SNPR in response to the
petitioner's request for rescission of the EPA policy on affirmative
defense provisions?

A. Petitioner's Request

    The February 2013 proposal notice explained in detail the
Petitioner's claims with respect to affirmative defense provisions in
SIPs, but it is helpful to repeat the full argument here in order to
explain the reasons for the EPA's revised proposal in this SNPR.
Understanding those specific claims in light of the court's decision in
the NRDC v. EPA decision serves to illustrate the need for the EPA to
reexamine the statutory basis for any affirmative defense in SIP
provisions, not merely those provisions limited to malfunction events
or to those for malfunction events that are sufficiently narrowly drawn
to be consistent with the EPA's prior interpretation of the CAA in the
1999 SSM Guidance.
    The Petitioner's first request was for the EPA to rescind its SSM
Policy element interpreting the CAA to allow affirmative defense
provisions in SIPs for excess emissions during SSM events.\12\ The
Petitioner also asked the EPA: (i) To find that SIPs containing an
affirmative defense to monetary penalties for excess emissions during
SSM events are substantially inadequate because they do not comply with
the CAA; and (ii) to issue a SIP call pursuant to CAA section 110(k)(5)
to require each such state to revise its SIP.\13\ Alternatively, if the
EPA denies these two related requests, the Petitioner requested the
EPA: (i) To require states with SIPs that contain such affirmative
defense provisions to revise them so that they are consistent with the
EPA's 1999 SSM Guidance for excess emissions during SSM events; and
(ii) to issue a SIP call pursuant to CAA section 110(k)(5) to states
with provisions inconsistent with the EPA's interpretation of the
CAA.\14\ The EPA interpreted this latter request to refer to the
specific SIP provisions that the Petitioner identified in a separate
section of the Petition, titled, ``Analysis of Individual States' SSM
Provisions,'' including specific existing affirmative defense
provisions.
---------------------------------------------------------------------------

    \12\ Petition at 11.
    \13\ Id.
    \14\ Petition at 12.
---------------------------------------------------------------------------

    The Petitioner requested that the EPA rescind its SSM Policy
element interpreting the CAA to allow SIPs to include affirmative
defenses for violations due to excess emissions during any type of SSM
events because the Petitioner contended there is no legal basis for the
policy. Specifically, the Petitioner cited to two statutory grounds,
CAA sections 113(b) and (e), related to the type of judicial relief
available in an enforcement proceeding and to the factors relevant to
the scope and availability of such relief, that the Petitioner claimed
would bar the approval of any type of affirmative defense provision in
SIPs.
    In the Petitioner's view, the CAA ``unambiguously grants
jurisdiction to the district courts to determine penalties that should
be assessed in an enforcement action involving the violation of an
emissions limit.'' \15\ The Petitioner first argued that in any
judicial enforcement action in the district court, CAA section 113(b)
provides that ``such court shall have jurisdiction to restrain such
violation, to require compliance, to assess such penalty, . . . and to
award any other appropriate relief.'' In addition, the Petitioner cited
the provisions of CAA section 304(a), which specifically pertain to
citizen suit enforcement and which reiterate that the federal courts
have jurisdiction to assess monetary penalties for violations as well
as to impose other remedies.\16\ The Petitioner reasoned that the EPA's
SSM Policy is therefore fundamentally inconsistent with the CAA because
it purports to remove the discretion and authority of the federal
courts to assess monetary penalties for violations if a source is
shielded from monetary penalties under an affirmative defense provision
in the approved SIP.\17\ The Petitioner

concluded that the EPA's interpretation of the CAA in the SSM Policy
element allowing any affirmative defenses is impermissible ``because
the inclusion of an affirmative defense provision in a SIP limits the
courts' discretion--granted by Congress--to assess penalties for Clean
Air Act violations.'' \18\
---------------------------------------------------------------------------

    \15\ Petition at 10.
    \16\ Petition at 11.
    \17\ Id.
    \18\ Id.
---------------------------------------------------------------------------

    Second, in reliance on CAA section 113(e)(1), the Petitioner argued
that in a judicial enforcement action in a district court, the statute
explicitly specifies a list of factors that the court is to consider in
assessing penalties.\19\ That section provides that either the
Administrator or the court:
---------------------------------------------------------------------------

    \19\ Id.

    . . . shall take into consideration (in addition to such other
factors as justice may require) the size of the business, the
economic impact of the penalty on the business, the violator's full
compliance history and good faith efforts to comply, the duration of
the violation as established by any credible evidence (including
evidence other than the applicable test method), payment by the
violator of penalties previously assessed for the same violation,
the economic benefit of noncompliance, and the seriousness of the
---------------------------------------------------------------------------
violation.

    The Petitioner argued that the EPA's SSM Policy authorizes states
to create affirmative defense provisions with criteria for monetary
penalties that are inconsistent with the factors that the statute
specifies and that the statute explicitly directs courts to weigh in
any judicial enforcement action. In particular, the Petitioner
enumerated those factors that it alleges the EPA's SSM Policy totally
omits: (i) The size of the business; (ii) the economic impact of the
penalty on the business; (iii) the violator's full compliance history;
(iv) the economic benefit of noncompliance; and (v) the seriousness of
the violation. By specifying particular factors for courts to consider,
the Petitioner reasoned, Congress has already definitively spoken to
the question of what factors are germane in assessing monetary
penalties under the CAA for violations. The Petitioner concluded that
the EPA has no authority to allow a state to include an affirmative
defense provision in a SIP with different criteria to be considered in
awarding monetary penalties because ``[p]reventing the district courts
from considering these statutory factors is not a permissible
interpretation of the Clean Air Act.'' \20\ The Petitioner drew no
distinction between affirmative defenses for unplanned events such as
malfunctions and planned events such as startup and shutdown.
---------------------------------------------------------------------------

    \20\ Id.
---------------------------------------------------------------------------

B. The EPA's Proposed Revised Response

    As a preliminary matter, the EPA acknowledges that its
interpretation of the CAA in its SSM Policy, since issuance of the 1999
SSM Guidance, has been that states may elect to have narrowly drawn
affirmative defense provisions in SIPs, so long as they meet certain
requirements (e.g., that they only apply to monetary penalties and not
to injunctive relief). The EPA's longstanding guidance has also
provided very specific recommendations to states concerning how to
develop affirmative defense provisions that would be consistent with
CAA requirements (e.g., such provisions should require sources to prove
in an enforcement proceeding that the violations are not so repetitive
as to indicate that the source is improperly designed, maintained or
operated). The EPA further acknowledges that it has previously approved
affirmative defense provisions in SIPs or, when appropriate,
promulgated affirmative defenses in federal implementation plans
(FIPs). Indeed, the EPA's approval of affirmative defense provisions in
SIPs or promulgation of such provisions in FIPs has been upheld by
courts in several decisions.\21\
---------------------------------------------------------------------------

    \21\ See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir.
2012) (upholding the EPA's approval of an affirmative defense
applicable during malfunctions in a SIP submission as a permissible
interpretation of the statute under Chevron step 2 analysis), cert.
denied, 134 S.Ct. 387 (2013); Mont. Sulphur & Chemical Co. v. EPA,
666 F.3d 1174, 1191-93 (9th Cir. 2012) (upholding the EPA's creation
of an affirmative defense applicable during malfunctions in a FIP);
Ariz. Public Service Co. v. EPA, 562 F.3d 1116, 1130 (9th Cir. 2009)
(upholding the EPA's creation of an affirmative defense applicable
during malfunctions in a FIP).
---------------------------------------------------------------------------

    Most significantly, the EPA's November 2010 approval of an
affirmative defense applicable to ``unplanned events'' (i.e.,
malfunctions) and disapproval of an affirmative defense applicable to
``planned events'' (e.g., planned startup and shutdown) in a Texas SIP
submission were challenged by numerous parties. In 2012, the U.S. Court
of Appeals for the 5th Circuit upheld EPA's actions, including both the
Agency's approval and disapproval of the affirmative defense provisions
applicable to the respective types of events.\22\ In that litigation,
the EPA defended its approval and disapproval actions, including the
filing of an opposition to a petition for certiorari filed by industry
challengers concerning the disapproval of the affirmative defense for
planned events. Throughout the litigation over the Texas SIP revision,
the EPA reiterated what was at the time its view that appropriately
drawn affirmative defense provisions applicable to malfunctions can be
consistent with CAA requirements for SIPs. In particular, the EPA
argued in that litigation that sections 113 and 304 do not preclude
appropriately drawn affirmative defense provisions for malfunctions in
SIPs. The 5th Circuit applied the two-step Chevron analysis to the
EPA's interpretation of section 113 in connection with both the
approval of the affirmative defense provision applicable to ``unplanned
events'' and the disapproval of the affirmative defense provision
applicable to ``planned events.'' With respect to both the approval and
disapproval, the court held that the Agency's interpretation of the CAA
at that time was a ``permissible interpretation of section [113],
warranting deference.'' \23\ Subsequent events have caused EPA to
reevaluate this interpretation of the CAA requirements.
---------------------------------------------------------------------------

    \22\ Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir.
2012), cert. denied, 134 S.Ct. 387 (2013).
    \23\ See Luminant Generation Co. v. EPA, 714 F.3d 841, at 851
and 856 (5th Cir. 2012).
---------------------------------------------------------------------------

    The EPA has carefully evaluated the more recent April 2014 decision
of the U.S. Court of Appeals for the District of Columbia Circuit in
NRDC v. EPA in which the court came to a contrary conclusion with
respect to the legal basis for an affirmative defense provision in the
Agency's own regulations.\24\ In light of this more recent decision,
the EPA believes that its prior interpretation of the CAA with respect
to the approvability of affirmative defense provisions in SIPs is no
longer the best reading of the statute. The EPA has authority to revise
its prior interpretation of the CAA when further consideration
indicates to the Agency that its prior interpretation of the statute is
incorrect.\25\ In order to explain more fully why the EPA believes that
the court's decision in NRDC v. EPA requires the Agency to change its
SSM Policy and to revise its February 2013 proposal notice with respect
to affirmative defense provisions in SIPs, the EPA will first explain
why it believes that the reasoning of the court's decision is more
broadly applicable and will then explain why it believes that the
specific reasons given by the court for rejecting the EPA's prior
interpretation of the CAA would apply with equal weight to SIP
provisions.
---------------------------------------------------------------------------

    \24\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
    \25\ See, e.g., White Stallion Energy Center, LLC v. EPA, 748
F.3d 1222, 1235 (D.C. Cir. 2014) (citing Nat'l Cable & Telecomms.
Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) and FCC v. Fox
Television Stations, Inc., 556 U.S. 502 (2009)).

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

    The EPA believes that the reasoning of the court's decision in NRDC
v. EPA applies more broadly than to the specific facts of the case for
several reasons. First, the EPA notes that the court's decision did not
turn upon the specific provisions of CAA section 112. Although the
court only evaluated the legal validity of an affirmative defense
provision created by the EPA in conjunction with specific standards
applicable to manufacturers of Portland cement, the court based its
decision upon the provisions of sections 113 and 304 that pertain to
enforcement of CAA requirements more broadly, including to SIPs.
Sections 113 and 304 pertain to administrative and judicial enforcement
generally and are in no way limited to enforcement of emission
limitations promulgated by the EPA under section 112. Thus, the EPA
does not think that the mere fact that the court only addressed the
legality of an affirmative defense provision in this particular context
means that the court's interpretation of sections 113 and 304 does not
also apply more broadly. To the contrary, the EPA sees no reason why
the logic of the court concerning sections 113 and 304 would not apply
to SIP provisions as well.
    Second, the EPA notes that footnote 2 in the opinion does not
signify that the court intended to take any position with respect to
the application of its interpretation of the CAA to SIP provisions, let
alone to suggest that its interpretation would not apply more broadly.
The court was clearly cognizant that a similar legal issue had arisen
in litigation in the U.S. Court of Appeals for the 5th Circuit
concerning the Texas SIP and merely acknowledged that fact and clearly
stated in this footnote: ``[W]e do not here confront the question
whether an affirmative defense may be appropriate in a State
Implementation Plan.'' \26\ Given that the case before the court did
not pertain to SIP provisions and thus the legal validity of
affirmative defense provisions in a SIP did not need to be decided, the
EPA believes that footnote 2 simply reflects the court's desire to be
clear that it was only addressing the question of whether sections 113
and 304 preclude any EPA authority to create an affirmative defense
applicable to private civil suits in its own regulations. However, the
EPA believes that the logic of the court's decision in NRDC v. EPA
regarding the import of sections 113 and 304 does extend to SIP
provisions. In the remainder of this section of the SNPR, we explain in
greater detail why we now think the D.C. Circuit's reading of the
statute is the correct one.
---------------------------------------------------------------------------

    \26\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
---------------------------------------------------------------------------

    Finally, the EPA notes that the fact that the court only addressed
the legality of affirmative defense provisions in the context of
citizen suit enforcement--which by definition is judicial rather than
administrative enforcement--does not affect the relevance of the
court's reasoning with respect to the legal basis for affirmative
defenses in SIP provisions. Under the CAA, a state has the initial
responsibility to develop and submit SIP submissions to meet various
requirements (e.g., to impose reasonably available control measures on
sources in nonattainment areas). The EPA's evaluation and approval of
the state's SIP submission in turn makes the contents of the submission
federally enforceable parts of the SIP. Pursuant to sections 113 and
304, the state, the EPA and citizens then have the ability to seek to
bring enforcement actions for violations of the requirements of the SIP
in federal court. Thus, the court's logic in NRDC v. EPA would also
apply to the provisions of the state's SIP, and the jurisdiction of a
court to impose penalties or other forms of relief for violations of
SIP requirements under the CAA cannot be altered by an affirmative
defense in a state's SIP provision in the same way that it cannot be
altered by such a provision in an EPA regulation.
    Just as the court's decision is not limited in ways that would
preclude it from applying to SIP provisions, the EPA also believes that
the logic of the decision would apply with equal weight to affirmative
defense provisions in SIPs for a number of reasons. Most significantly,
the court rejected a series of arguments that the EPA made to support
its legal authority under the CAA to create an affirmative defense in
the Portland cement NESHAP. The EPA made the same or comparable
arguments to support its interpretation of the CAA to provide authority
for states to elect to create, and for the EPA to approve, affirmative
defense provisions in SIPs applicable in judicial enforcement cases.
The EPA has carefully evaluated the reasoning of the court in the NRDC
v. EPA decision and now believes that its prior interpretation of the
CAA with respect to affirmative defense provisions in the SSM Policy,
as first stated in the 1999 SSM Guidance and as updated in the February
2013 proposal notice, was incorrect and would not withstand judicial
review in light of the NRDC v. EPA decision. Evaluation of the key
points of the court's reasoning in the decision indicates that the
court's interpretation of the relevant statutory provisions applies
equally to SIP provisions.
    First, the NRDC v. EPA court examined the litigants' key argument
that the EPA has no authority to alter the jurisdiction of courts to
assess monetary penalties or to alter the factors that courts must
consider when assessing the amount of such penalties. The litigants
argued that the EPA's creation of an affirmative defense had the effect
of altering or eliminating the jurisdiction of the federal courts to
impose penalties in a citizen suit enforcement proceeding. The NRDC v.
EPA court evaluated the litigants' argument with a straightforward
reading of CAA section 304(a) concerning the rights of ``any person''
to bring an enforcement action and the jurisdiction of federal courts
to assess liability and penalties in such an action and of CAA section
113(e)(1) concerning the factors that courts must consider when
assessing civil penalties. Citing recent U.S. Supreme Court precedent,
the court reasoned that section 304(a) creates a private right of
action and that the courts alone are vested with authority to determine
the scope of remedies in judicial enforcement, rather than the
administrative agency. The NRDC v. EPA court treated this issue as a
question that it could answer with a Chevron step 1 plain reading of
the statute and evidently saw no ambiguity concerning whether the EPA
has authority to alter the rights of litigants to seek monetary
penalties for violations or to alter the jurisdiction of the federal
courts to assess such penalties. In retrospect and in light of the
court's decision, the EPA believes that this is the correct reading of
CAA sections 113 and 304 with respect to this question in the SIP
context as well. Thus, these statutory provisions functionally bar
affirmative defense provisions in SIPs that would have the effect of
altering the rights of litigants or the authority of the courts in the
event of enforcement for violations of SIP requirements.
    Second, the NRDC v. EPA court evaluated the EPA's argument that an
affirmative defense ``fleshes out the statutory requirement that
penalties be applied only when `appropriate.' '' \27\ The EPA had
argued that CAA section 304(a) provides federal district courts with
jurisdiction to ``apply any appropriate civil penalties'' and that such
penalties would only be ``appropriate'' if the regulation being
enforced specifically provided for such penalties in the first place.
In other words, the EPA argued, if the regulation

contained an affirmative defense that precluded monetary penalties
under certain circumstances, then it would not be ``appropriate'' for a
court to assess the penalties in those circumstances. The NRDC v. EPA
court disagreed with this argument, stating unequivocally that under
the CAA ``deciding whether penalties are `appropriate' is a job for the
courts, not EPA.'' \28\ To the extent that a defendant in an
enforcement case has a basis for arguing that monetary penalties should
be reduced, the court stated that CAA section 113(e)(1) already
provides courts with factors that may be taken into consideration. The
court emphasized that in judicial enforcement, the court decides
whether or not to accept a defendant's arguments concerning the
assessment of penalties, not the EPA. In the February 2013 proposal
notice, the EPA relied on this same argument to support its position
that affirmative defense provisions in SIPs would not contradict CAA
sections 113 and 304 and to justify its proposed denial of the Petition
with respect to affirmative defenses applicable to malfunctions
events.\29\ Given that the court has rejected this interpretation of
the CAA for the EPA's own regulations, the EPA believes that the same
principle applies to states that seek to alter the ability of federal
courts to assess penalties for violations of CAA requirements in SIP
provisions. If states have no authority to alter the jurisdiction of
federal courts to impose remedies for violations explicitly provided
for in the CAA, then this affects the EPA's authority to approve any
such SIP provisions as consistent with the requirements of the CAA.
Pursuant to its authority and responsibility under sections 110(k),
110(l) and 193, the EPA can only approve SIP provisions that comply
with the applicable substantive requirements of the CAA. Approving an
affirmative defense provision into a SIP that would purport to
contravene the jurisdiction of federal courts to determine liability
and to impose remedies in accordance with sections 113 and 304 would
thus be inappropriate.
---------------------------------------------------------------------------

    \27\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
    \28\ See NRDC v. EPA, 749 F.3d 1055, 1062 (D.C. Cir. 2014).
    \29\ See February 2013 proposal notice, 78 FR 12459 at 12472
(middle column).
---------------------------------------------------------------------------

    Third, the NRDC v. EPA court scrutinized the EPA's argument that it
has authority under CAA section 301 to create an affirmative defense
through the general authority of the EPA Administrator ``to prescribe
such regulations as are necessary to carry out his functions under''
the CAA.\30\ In the February 2013 proposal notice, the EPA did not make
this particular argument because it was not proposing EPA regulations
to implement the CAA, rather it was proposing action on a petition for
rulemaking that entails evaluating the EPA's guidance to states in the
SSM Policy concerning whether specific types of SIP provisions are
consistent with CAA requirements. Nevertheless, the EPA notes, the
court rejected the notion that the EPA has any authority to promulgate
regulations that would alter or eliminate the jurisdiction of federal
courts to assess penalties when Congress has already directly spoken to
that issue. As the court expressed it, ``EPA cannot rely on its gap-
filling authority to supplement the Clean Air Act's provisions when
Congress has not left the agency a gap to fill.'' The EPA believes that
the court's reasoning would extend to situations where the EPA is
required to determine whether or not an affirmative defense provision
is consistent with CAA requirements. Following this reasoning, the EPA
would not have authority, through rulemaking on a state's SIP
submission or otherwise, to approve an affirmative defense provision
applicable in a judicial enforcement action, because to do so would be
inconsistent with the statutory allocation of jurisdiction to the
federal courts. In other words, just as the EPA's authority to
promulgate regulations to implement the CAA does not encompass the
authority to overwrite statutory provisions, the EPA likewise lacks
authority to issue guidance to states concerning SIP provisions in the
SSM Policy, or to approve a SIP submission that contains such SIP
provisions, in a way that would likewise overwrite statutory provisions
where Congress has spoken directly.
---------------------------------------------------------------------------

    \30\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
---------------------------------------------------------------------------

    Fourth, the NRDC v. EPA court weighed the EPA's argument that CAA
section 304 does not ``expressly deny'' EPA authority to create
affirmative defenses and thus the EPA is not precluded from doing
so.\31\ Because the statute is silent with respect to whether or not
such provisions are permissible, the EPA inferred that the EPA had
authority to create them as a component of the Portland cement NESHAP.
In the February 2013 proposal notice, the EPA used a comparable
argument that sections 110(a), 113(b) and 113(e) of the CAA do not
expressly forbid affirmative defense provisions in SIPs, both to
support its position that states could elect to have affirmative
defense provisions for malfunctions in SIPs and in support of its
proposed denial of the Petition on this point.\32\ In response to this
particular argument, the NRDC v. EPA court rejected the suggestion that
a court should ``presume a delegation of power absent an express
withholding of such power'' as inconsistent with the principles of
statutory interpretation under Chevron. The court thus expressly
rejected the argument that affirmative defense provisions are
consistent with the CAA by virtue of the fact that Congress has not
explicitly forbidden them, especially in the face of conflicting
provisions such as those in sections 113(b) and 304(a) giving
jurisdiction to federal courts to assess penalties for violations of
CAA requirements. The EPA now believes that this same reasoning applies
to affirmative defense provisions in SIPs.
---------------------------------------------------------------------------

    \31\ Id.
    \32\ See February 2013 proposal notice, 78 FR 12459 at 12470
(middle column); 12470 (right column); 12472 (right column).
---------------------------------------------------------------------------

    Finally, the NRDC v. EPA court evaluated the EPA's argument that
affirmative defense provisions are ``necessary to account for the
tension between requirements that emission limitations be `continuous'
and the practical reality that control technology can fail
unavoidably.'' \33\ This tension is an important point that the EPA has
long noted as a basis for its interpretation of the CAA to allow
affirmative defense provisions, not only in its own regulations such as
the Portland cement NESHAP, but also in the SSM Policy providing
guidance to states for SIP provisions. In the February 2013 proposal
notice, the EPA used this same argument and the same case law support
to justify its position that states could elect to have affirmative
defense provisions for malfunctions in SIPs and for its proposed denial
of the Petition on this point.\34\ The NRDC v. EPA court agreed that
this would be a ``good argument'' for a source to make in an
enforcement proceeding but made clear that this ``tension'' does not
give the EPA legal authority to create an affirmative defense.\35\ The
court thus

summarily rejected the EPA's argument that the need to ``balance'' the
objectives of the CAA and to resolve the ``tension'' in the CAA
authorizes creation of affirmative defenses that purport to alter or
eliminate the jurisdiction of the courts to assess monetary penalties
or other forms of relief. Given the result in the NRDC v. EPA decision,
the EPA believes that this argument can no longer be a basis for the
EPA's approval of affirmative defense provisions in SIPs that would
apply in judicial enforcement actions. The net result would be that
sources can continue to make this practical argument in the context of
judicial enforcement proceedings and that this consideration would
remain relevant in that forum, but without intercession by states or
the EPA concerning whether the source should be liable for penalties in
any specific circumstance through an affirmative defense provision in
the SIP. In accordance with CAA section 113(e), sources retain the
ability to seek lower monetary penalties through the statutory factors
provided for consideration in administrative or judicial enforcement
proceedings. In this context, for example, a violating source could
argue that factors such as good-faith efforts to comply should reduce
or eliminate otherwise applicable monetary penalties in a particular
situation.
---------------------------------------------------------------------------

    \33\ See NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014).
    \34\ See February 2013 proposal notice, 78 FR 12459 at 12470
(left column); 12472 (right column); 12487 (left column).
    \35\ The EPA interprets the court's opinion to mean that a
defendant in an enforcement proceeding might want to make this
argument as part of its efforts to seek lower penalties, consistent
with the factors listed in CAA section 113(e). The court's reference
to the EPA's making such an argument relates back to the court's
earlier suggestion that the EPA could seek to participate as an
intervenor or an amicus in a citizen suit enforcement matter if it
wants to take a position on what monetary penalties are
``appropriate'' for a given violation.
---------------------------------------------------------------------------

    In light of the court's decision in NRDC v. EPA, the EPA believes
it necessary to revise its SSM Policy and its February 2013 proposed
response to the Petition with respect to the issues related to
affirmative defense provisions in SIPs. Given the court's reasoning
that sections 113 and 304 preclude the EPA from having authority to
create an affirmative defense applicable in private civil suits in
federal regulations because such a provision would impinge upon
jurisdiction explicitly provided by Congress to the courts, the EPA
believes that its past guidance to states in the SSM Policy is flawed.
If the EPA has no authority to create affirmative defenses because it
cannot alter the jurisdiction of the courts to assess penalties in
enforcement proceedings for violations of CAA requirements, then it
follows that states likewise cannot alter the jurisdiction of the
federal courts in SIP provisions and the EPA cannot approve any SIP
provision that purports to do so. The EPA emphasizes that the same
logic applies to any SIP provision that purports to eliminate, restrict
or otherwise alter the jurisdiction of federal courts to impose any of
the expressly listed forms of relief in section 113(b), not merely
those applicable to monetary penalties.\36\ Pursuant to the
requirements of sections 110(k), 110(l) and 193, the EPA has both the
authority and the responsibility to evaluate SIP submissions to assure
that they meet the requirements of the CAA. Pursuant to section
110(k)(5), the EPA has authority and discretion to take action to
require states to revise previously approved SIP provisions if they do
not meet CAA requirements.
---------------------------------------------------------------------------

    \36\ The EPA notes that CAA section 113(b) expressly gives
federal courts jurisdiction ``to restrain such violation, to require
compliance, to assess such civil penalty, to collect any fees owed
the United States under this chapter (other than subchapter II of
this chapter) and any noncompliance assessment and nonpayment
penalty owed under section 7420 of this title, and to award any
other appropriate relief.'' Similarly, CAA section 304 expressly
provides that in the context of a citizen suit enforcement case,
federal courts have jurisdiction ``to enforce such an emission
standard or limitation, or such an order . . . and to apply any
appropriate civil penalties.'' In the latter section, the term
``emission standard or limitation'' is defined broadly in section
304(f).
---------------------------------------------------------------------------

    For the foregoing reasons, in this SNPR the EPA is proposing to
grant the Petition with respect to the Petitioner's request that the
EPA rescind its SSM Policy element interpreting the CAA to allow
affirmative defense provisions in SIPs for excess emissions during SSM
events. Unlike the EPA's view at the time of the February 2013 proposal
notice, the EPA now sees no valid basis for interpreting the CAA to
permit affirmative defense provisions in SIPs for violations due to
excess emissions during any type of event, whether that event is a
malfunction totally beyond the control of the source or a planned event
within the control of the sources such as a startup or shutdown.

V. Revised SSM Policy on Affirmative Defense Provisions in SIPs

    In the February 2013 proposal notice, the EPA evaluated the issues
raised by the Petitioner concerning the treatment of excess emissions
during SSM events in SIP provisions. As part of responding to the
Petition, the EPA proposed to clarify, reiterate and revise its
longstanding SSM Policy. In this SNPR, the EPA is now proposing to
revise further its interpretation of the CAA with respect to
affirmative defense provisions applicable to excess emissions during
SSM events.
    Based upon a reevaluation of the CAA with respect to SIP
provisions, and upon careful consideration of the implications of the
court's decision in NRDC v. EPA, the EPA is proposing to revise its SSM
Policy concerning the issue of affirmative defense provisions. In
particular, the EPA is proposing to reverse its prior recommendations
to states on this issue provided in the 1999 SSM Guidance. In that
guidance, the EPA had interpreted the CAA to permit states to elect to
create narrowly drawn affirmative defense provisions in SIPs, both for
malfunction events and for startup and shutdown events, so long as the
provisions were consistent with the criteria recommended by the Agency.
In the February 2013 proposal notice, the EPA had already proposed to
revise this interpretation of the CAA to permit states to develop
affirmative defense provisions only for malfunction events and not for
startup and shutdown events. The decision of the court in NRDC v. EPA
indicates that the EPA needs to revise the SSM Policy yet further.
    At this juncture, the EPA believes that the reasoning of the U.S.
Court of Appeals for the District of Columbia Circuit in NRDC v. EPA
logically extends to affirmative defense provisions created by states
in SIPs, as well as to such provisions created by the EPA in its own
regulations. Given that sections 113 and 304 functionally bar any
affirmative defense that purports to alter or to eliminate the
jurisdiction of federal courts to assess penalties for violations of
CAA requirements or to impose the other remedies listed in section
113(b), this principle applies to SIP provisions as well. Although the
NRDC v. EPA decision focused on the jurisdiction of the federal courts
to assess civil penalties for violations of EPA regulations promulgated
under section 112, because that was what was specifically at issue in
the case before it, the EPA sees no reason why the same logic would not
apply to any SIP provision that purported to alter or eliminate the
jurisdiction of the federal courts to exercise their authority in the
event of violations as provided in CAA section 113(b), including the
authority to restrain violations, to require compliance, to assess
civil penalties, to collect any fees and to award any other appropriate
relief. In other words, affirmative defense provisions in SIPs that
purport to alter or eliminate the broad authority of federal courts to
award any of these types of relief in the event of an enforcement
action, whether pursuant to section 113 or section 304, are likewise
contrary to the enforcement structure of the CAA. Accordingly, the EPA
proposes to revise its SSM Policy to interpret the CAA to preclude
affirmative defense provisions in SIPs. When finalized, this rulemaking
will embody the EPA's revised SSM Policy, and it will provide the most
up-to-date and comprehensive EPA guidance on

the subject of the proper treatment of excess emissions from sources
during SSM events in SIP provisions.

VI. Legal Authority, Process and Timing for SIP Calls

    In section VIII of the February 2013 proposal notice, the EPA
explained in detail its statutory authority under CAA section 110(k)(5)
to issue a SIP call to states to address SIP deficiencies, the process
for making such a SIP call and the timing for such a SIP call. In this
SNPR, the EPA is not revising its interpretations of the CAA with
respect to those issues and thus is not seeking comment on these
topics. The EPA is revising one aspect of the February 2013 proposal
notice with respect to the basis for the proposed SIP calls for
affirmative defense provisions. In the February 2013 proposal notice,
the EPA explained its basis for concluding that different types of
deficient SIP provisions identified in the Petition are substantially
inadequate to comply with requirements of the CAA and thus warrant a
SIP call for a state to revise or to eliminate the impermissible
provision. With respect to affirmative defense provisions, the EPA
articulated its evaluation of why inadequate affirmative defense
provisions applicable to malfunction events, or any affirmative defense
provisions applicable to planned events like startup and shutdown,
would be inconsistent with fundamental legal requirements of CAA
sections 110(a) and 302(k) and the enforcement structure provided in
CAA sections 113 and 304.\37\ The rationale provided by the EPA in the
February 2013 proposal notice was obviously based upon the Agency's
interpretation of the relevant requirements of the CAA at the time of
that proposal.
---------------------------------------------------------------------------

    \37\ See February 2013 proposal notice, FR 12459 at 12487-88.
---------------------------------------------------------------------------

    In light of the decision of the U.S. Court of Appeals for the
District of Columbia Circuit in NRDC v. EPA, however, the EPA has
reevaluated whether any form of affirmative defense provision is
consistent with CAA requirements for SIP provisions. The court
concluded that the EPA has no authority to alter the rights of
litigants to seek monetary penalties for violations of CAA requirements
and no authority to alter the broad jurisdiction of federal courts to
assess such penalties for such violations under CAA sections 113 and
304. The EPA believes that the logic of the court's decision extends to
the jurisdiction of the federal courts to impose other remedies
expressly provided for in sections 113 and 304 as well. These sections
of the CAA are thus among the fundamental requirements with which SIPs
must comply in order to be consistent with the enforcement structure
created by Congress in the CAA.
    The EPA notes that the NRDC v. EPA court did not condition its
decision on considerations such as whether the use of the affirmative
defense provision in the Portland cement NESHAP would have a
demonstrated causal connection to a given environmental impact (or
undermine a specific enforcement action); the court decided the
question based solely on the fundamental legal requirements of the CAA,
which apply equally to SIPs. The court viewed the statutory
requirements for enforcement of violations as a legal bar to the EPA's
creating an affirmative defense. The EPA believes that this decision
supports the EPA's view that an affirmative defense provision in a SIP
that would operate to interfere with the rights of litigants to seek
penalties for violations of the SIP or other statutory forms of relief,
or to interfere with the jurisdiction of courts to assess penalties or
other relief for such violations, is a substantial inadequacy because
such provision would violate fundamental legal requirements of the CAA.
This potential for interference with the intended enforcement structure
of the CAA is sufficient to establish that such an affirmative defense
provision is substantially inadequate to meet CAA requirements, and
there is no need to demonstrate that the use of the affirmative defense
would be causally connected to any particular impact (e.g., a specific
violation of a NAAQS at a particular monitor on a particular day, or
the undermining of effective enforcement for a particular violation by
a particular source). By specifying that parties have the right to seek
relief for violations and that courts have jurisdiction to impose
relief for such violations, the EPA believes, Congress has already made
the determination that SIP provisions have to be consistent with the
requirements of CAA sections 113 and 304 without regard to impact on
other CAA requirements such as demonstrating attainment. Accordingly,
the EPA has the authority and the responsibility to assure that SIP
provisions meet the requirements of CAA sections 113 and 304 and do not
undermine the enforcement structure for SIPs that was created in the
CAA.

VII. What is the EPA proposing through this SNPR for each of the
specific affirmative defense provisions identified in the Petition or
identified independently by the EPA?

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

    In addition to its overarching request that the EPA revise its
interpretation of the CAA in the SSM Policy with respect to any form of
affirmative defense provisions in SIPs, the Petitioner identified
specific existing affirmative defense provisions that the Petitioner
contended are not consistent with the EPA's own interpretation of the
CAA as expressed in the 1999 SSM Guidance. In general, the provisions
identified by the Petitioner are structured as affirmative defense
provisions, regardless of whether they use the term ``affirmative
defense'' and regardless of whether the EPA ever specifically evaluated
the provisions with respect to the recommendations for such provisions
in the 1999 SSM Guidance. While not agreeing with the EPA's guidance
for affirmative defense provisions, the Petitioner expressed concern
that all of the identified provisions fail to address some or all of
the criteria for affirmative defense provisions that the EPA
recommended in the 1999 SSM Guidance.
    In the February 2013 proposal notice, the EPA explained that it was
reviewing each identified affirmative defense provision on the merits.
At that time, the EPA was operating under the belief that its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs was correct. Accordingly, the EPA evaluated each of
the provisions for consistency with the EPA's interpretation of the CAA
as set forth in the 1999 SSM Guidance and as it was revising its
interpretation in the February 2013 proposal notice. The February 2013
proposal notice thus contained the EPA's proposal to grant or to deny
the Petition based on the EPA's evaluation as to whether the provision
at issue provides adequate criteria to provide only a narrow
affirmative defense for violations due to malfunctions for sources
under certain circumstances consistent with the overarching CAA
objectives, such as attaining and maintaining the NAAQS. In addition,
the EPA proposed to grant the Petition with respect to any identified
provision that creates an affirmative defense applicable during planned
startup and shutdown events, because such provisions are not consistent
with the requirements of the CAA.

    Now, however, the EPA is reevaluating each of the specific
affirmative defense provisions identified by the Petitioner for
consistency with the CAA in light of the court's decision in NRDC v.
EPA. As explained in section III.C of this SNPR, the EPA is revising
its interpretation of the CAA concerning the legal basis for
affirmative defense provisions. Given that the reasoning of the court
applies equally to SIP provisions, the EPA is proposing to grant the
Petition with respect to each of these provisions. Thus, the EPA is
proposing to find that these provisions are substantially inadequate
because they are not consistent with fundamental legal requirements of
the CAA and the EPA is proposing to issue a SIP call to each affected
state for these specific provisions.
    In addition to provisions identified by the Petitioner, the EPA is
independently identifying other specific existing problematic
affirmative defense provisions in SIPs. As a result, the EPA is newly
including one or more affirmative defense provisions in the SIPs of the
following four states: (1) New Mexico (Albuquerque-Bernalillo County);