that the provision ``clearly provides an exemption at the discretion of
the department.'' \95\ The Petitioner argued that such a provision
provides exemptions from the otherwise applicable SIP emission
limitations, and such exemptions are inconsistent with the requirements
of the CAA and the EPA's SSM Policy. Further, the Petitioner argued
that the provision precludes enforcement by the EPA or citizens, both
for civil penalties and injunctive relief, and that the EPA's
interpretation of the CAA would forbid such a provision.
---------------------------------------------------------------------------

    \95\ Petition at 44.
---------------------------------------------------------------------------

b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, or malfunctions are not violations
of the applicable emission limitations are inconsistent with the
fundamental requirements of the CAA with respect to emission
limitations in SIPs. The EPA believes that inclusion of such an
exemption in 06-096-101 Me. Code R. Sec.  3 from the otherwise
applicable SIP emission limitation for violations during the first 4
hours following cold startup or planned shutdown of boilers with a
rated input capacity of more than 200 million BTU per hour is a
substantial inadequacy and renders this specific SIP provision
impermissible.
    With respect to the Petitioner's concern that this exemption could
preclude enforcement by the EPA or citizens, the EPA agrees that this
is one of the critical reasons why such a provision is impermissible
under the CAA. By having a SIP provision that defines what would
otherwise be violations of the applicable emission limitations as non-
violations, the state has effectively negated the ability of the EPA or
the public to enforce against those violations.
    The EPA also believes that even if 06-096-101 Me. Code R. Sec.  3
is interpreted to allow the source to make the required demonstration
only in the context of an enforcement proceeding, the conditions set
forth in the provision do not render it an acceptable affirmative
defense provision. As explained in sections IV and VII.C of this
notice, the EPA believes that affirmative defenses are only permissible
under the CAA in the

case of events that are beyond the control of the source, i.e.,
malfunctions. Affirmative defense provisions are not appropriate in the
case of planned source actions, such as cold startup or planned
shutdown, because sources should be expected to comply with applicable
emission limitations during those normal planned and predicted modes of
source operation.
    Finally, the EPA believes that 06-096-101 Me. Code R. Sec.  4 is
impermissible under the CAA as interpreted in the EPA's SSM Policy as
an unbounded director's discretion provision. The provision authorizes
a state official ``to exempt emissions occurring during periods of
unavoidable malfunction or unplanned shutdown from civil penalty under
section 349, subsection 2.'' Although the reference to section 349,
subsection 2 is to a Maine state penalty provision, the EPA believes
that the provision is unclear as written. This provision could be read
to mean that once the state official has exempted excess emissions
during malfunctions from otherwise applicable SIP limitations, those
excess emissions are not subject to any penalties, including penalties
under CAA section 113. As discussed in section VII.A of this notice,
such director's discretion provisions are impermissible. Such an
interpretation would make the state official the unilateral arbiter of
whether the excess emissions in a given event constitute a violation,
which could preclude enforcement by the EPA or the public who might
disagree about whether enforcement action is warranted. Most
importantly, however, the provision may be read to authorize the state
official to create an exemption from the emission limitation, and such
an exemption is impermissible in the first instance. The EPA believes
that inclusion of an unbounded director's discretion provision in 06-
096-101 Me. Code R. Sec.  4 is thus a substantial inadequacy and
renders this specific SIP provision impermissible for this reason.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to 06-096-101
Me. Code R. Sec.  3. The EPA believes that this provision allows for
exemptions from the otherwise applicable SIP emission limitations, and
that such exemptions are inconsistent with the fundamental requirements
of the CAA with respect to emission limitations in SIPs as required by
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by
creating these impermissible exemptions, the state has defined
violations in a way that would interfere with effective enforcement by
the EPA and the public for excess emissions during these events as
provided in CAA sections 113 and 304. Even if the EPA were to consider
06-096-101 Me. Code R. Sec.  3 to provide an affirmative defense rather
than an automatic exemption, the provision is not a permissible
affirmative defense provision consistent with the requirements of the
CAA as interpreted in the EPA's recommendations in the EPA's SSM
Policy.
    The EPA also proposes to grant the Petition with respect to 06-096-
101 Me. Code R. Sec.  4. The EPA believes that this provision, as
written, applies only to state penalties. However, the EPA is concerned
that the provision could cause confusion among the public, the
regulated community, and the courts, who might interpret the provision
as applying to both state and federal penalties. Of course, such an
interpretation would seem to allow for exemptions from otherwise
applicable emission limitations through a state official's unilateral
exercise of unbounded discretionary authority and therefore be
inconsistent with the fundamental requirements of the CAA with respect
to SIPs and SIP revisions. To avoid any such misunderstanding, the EPA
is proposing to find that these provisions are substantially inadequate
to meet CAA requirements and thus proposing to issue a SIP call with
respect to these provisions.
2. New Hampshire
a. Petitioner's Analysis
    The Petitioner objected to two generally applicable provisions in
the New Hampshire SIP that allow emissions in excess of otherwise
applicable SIP emission limitations during ``malfunction or breakdown
of any component part of the air pollution control equipment.'' \96\
The Petitioner argued that the challenged provisions provide an
automatic exemption for excess emissions during the first 48 hours when
any component part of air pollution control equipment malfunctions
(N.H. Code R. Env-A 902.03) and further provide that ``[t]he director
may * * * grant an extension of time or a temporary variance'' for
excess emissions outside of the initial 48-hour time period (N.H. Code
R. Env-A 902.04). The Petitioner argued that N.H. Code R. Env-A 902.03
is an impermissible automatic exemption because it ``provides that if
certain conditions existed during a period of excess emissions, then
those exceedances would not be considered violations.'' \97\ The
Petitioner argued that such exemptions are inconsistent with the
requirements of the CAA and the EPA's SSM Policy. The Petitioner argued
that the CAA and the EPA's interpretation of the CAA in the SSM Policy
require that all such excess emissions be treated as violations. The
Petitioner further argued that both N.H. Code R. Env-A 902.03 and N.H.
Code R. Env-A 902.04 appear ``to authorize the division to allow
[exemptions], which could be interpreted to preclude enforcement by EPA
or citizens'' \98\ for the excess emissions that would otherwise be
violations of applicable SIP emission limitations.
---------------------------------------------------------------------------

    \96\ Petition at 52-53.
    \97\ Petition at 52.
    \98\ Petition at 53.
---------------------------------------------------------------------------

    Second, the Petitioner objected to two specific provisions in the
New Hampshire SIP which provide source-specific exemptions for periods
of startup for ``any process, manufacturing and service industry''
(N.H. Code R. Env-A 1203.05) and for pre-June 1974 asphalt plants
during startup, provided they are at 60-percent opacity for no more
than 3 minutes (N.H. Code R. Env-A 1207.02).\99\ The Petitioner
recognized that EPA permits source category-specific emission
limitations for startup and shutdown if certain conditions are met. The
Petitioner argued, however, that ``[o]f the seven criteria EPA
considers adequate to justify a source specific emission limit during
startup and shutdown, section 1207.02 arguably meets only one of them
and section 1203.05 meets none at all.'' \100\ The Petitioner thus
requested that EPA require New Hampshire to remove both provisions from
the SIP.
---------------------------------------------------------------------------

    \99\ Petition at 52-53.
    \100\ Petition at 53.
---------------------------------------------------------------------------

b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, or malfunctions are not violations
are inconsistent with the

fundamental requirements of the CAA with respect to emission
limitations in SIPs. The first provision identified by the Petitioner,
N.H. Code R. Env-A 902.03, explicitly states that ``increased emissions
shall be allowed'' during ``malfunction or breakdown of any component
part of the air pollution control equipment.'' The third provision
identified by the Petitioner, N.H. Code R. Env-A 1203.05, provides that
applicable SIP emission limitations apply ``for any process,
manufacturing and service industry'' ``[e]xcept during periods of
start-ups and warm-ups.'' Both of these provisions allow automatic
exemptions during periods of startup from otherwise applicable SIP
emission limitations for excess emissions and thus are inconsistent
with the requirements of the CAA as interpreted in the EPA's SSM
Policy. The EPA believes that inclusion of such exemptions from
otherwise applicable SIP emission limitations in these provisions is a
substantial inadequacy and renders these SIP provisions impermissible.
    Similarly, N.H. Code R. Env-A 1203.05 does not appear to comply
with the Act's requirements for source category-specific rules for
startup and shutdown as interpreted in the EPA's SSM Policy. N.H. Code
R. Env-A 1203.05 establishes a visible emissions limit for ``any
process, manufacturing and service industry'' but further states that
this limit does not apply during startups. Automatic exemptions from
otherwise applicable SIP emission limitations for excess emissions
during periods of startup are not permissible under the CAA. As
discussed in section VII.A of this notice, states may elect to develop
alternative emission limitations or other forms of enforceable control
measures or techniques that apply during startup or shutdown, but
exemptions for excess emissions during such periods are inconsistent
with the fundamental requirements of the CAA.
    Similarly, N.H. Code R. Env-A 1207.02 provided an alternate opacity
limit, ``60 percent opacity, No. 3 on the Ringelmann Smoke Chart,'' for
pre-June 1974 asphalt plants during startups. The EPA believes that
this alternate emissions limit does not meet the elements of the EPA's
SSM Policy interpreting the CAA for establishing source-specific
startup and shutdown alternative limits. However, after the Petitioner
filed its Petition, the EPA acted on a SIP revision from New Hampshire
correcting N.H. Code R. Env-A 1207.02 and renaming that provision as
N.H. Code R. Env-A 2703.02. The N.H. Code R. Env-A 2703.02, as
rewritten and submitted by New Hampshire, corrected the deficiencies
identified by the Petitioner and removed the alternative limitations
applicable during startups for pre-June 1974 asphalt plants. The EPA
approved New Hampshire's SIP revision with respect to N.H. Code R. Env-
A 2703.02 on August 22, 2012.\101\ Thus, the Petitioner's objection to
this provision is moot.
---------------------------------------------------------------------------

    \101\ See, 77 FR 50561 at 50608.
---------------------------------------------------------------------------

    Finally, the EPA believes that N.H. Code R. Env-A 902.04 is
impermissible under the CAA as interpreted in the EPA's SSM Policy,
because it includes an unbounded director's discretion provision. The
provision authorizes a state official to grant ``an extension of time''
to the time-limited exemption provided by N.H. Code R. Env-A 902.03 or
a ``temporary variance'' to an applicable SIP emission limitation
during malfunctions of air pollution control equipment. This provision
could be read to mean that once the state official has granted a time
extension or temporary variance for excess emissions during
malfunctions from otherwise applicable SIP limitations, those excess
emissions are not violations. As discussed in section VII.A of this
notice, such director's discretion provisions are impermissible. Such
an interpretation would make the state official the unilateral arbiter
of whether the excess emissions in a given event constitute a
violation, which could preclude enforcement by the EPA or the public
who might disagree about whether enforcement action is warranted. Most
importantly, however, the provision may be read to authorize the state
official to create an exemption from the emission limitation, and such
an exemption is impermissible in the first instance. The EPA believes
that inclusion of an unbounded director's discretion provision in N.H.
Code R. Env-A 902.03 is thus a substantial inadequacy and renders this
specific SIP provision impermissible for this reason.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to N.H. Code R.
Env-A 902.03 and N.H. Code R. Env-A 1203.05. The EPA believes that both
of these provisions allow for automatic exemptions from otherwise
applicable emission limitations and that such outright exemptions are
inconsistent with the fundamental requirements of the CAA with respect
to emission limitations in SIPs as required by sections 110(a)(2)(A),
110(a)(2)(C), and 302(k). In addition, by creating these impermissible
exemptions, the state has defined violations in a way that would
interfere with effective enforcement by the EPA and citizens for excess
emissions during these events as provided in CAA sections 113 and 304.
For these reasons, the EPA is proposing to find that these provisions
are substantially inadequate to meet CAA requirements and thus is
proposing to issue a SIP call with respect to these provisions.
    The EPA proposes to grant the Petition with respect to N.H. Code R.
Env-A 902.04. The EPA believes that this provision allows for
exemptions from otherwise applicable emission limitations through a
state official's unilateral exercise of discretionary authority that is
unbounded. Such provisions are inconsistent with the fundamental
requirements of the CAA with respect to emission limitations in SIPs as
required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these
reasons, the EPA is proposing to find that this provision is
substantially inadequate to meet CAA requirements and thus proposing to
issue a SIP call with respect to this provision.
    The EPA proposes to deny the Petition with respect to N.H. Code R.
Env-A 1207.02. New Hampshire has corrected the inadequacy identified by
the Petitioner, and the EPA approved the SIP revision. Therefore, the
Petitioner's objection is moot.
3. Rhode Island
a. Petitioner's Analysis
    The Petitioner objected to a generally applicable provision in the
Rhode Island SIP that allows for a case-by-case petition procedure
whereby a source can obtain a variance from state personnel under R.I.
Gen. Laws Sec.  23-23-15 to continue to operate during a malfunction of
its control equipment that lasts more than 24 hours, if the source
demonstrates that enforcement would constitute undue hardship without a
corresponding benefit (25-4-13 R.I. Code R. Sec.
16.2).102 103 The Petitioner argued that if the state grants
the source's petition and provides a variance allowing the source to
continue to operate, the facility could be excused from compliance with
otherwise applicable SIP emission limitations

during malfunction periods. The Petitioner argued that this provision
could be read to preclude enforcement by the EPA or citizens in the
event that the state elects not to treat the event as a violation of
SIP emission limitations. Thus, the Petitioner argued, the provision is
inconsistent with the CAA and the EPA's SSM Policy because it allows
the state to make a unilateral decision that the excess emissions were
not a violation and thus purports to bar enforcement for the excess
emissions by the EPA and citizens.
---------------------------------------------------------------------------

    \102\ Petition at 63-65.
    \103\ The EPA notes that the Petitioner also identified several
additional provisions, 25-4-13 R.I. Code R. Sec. Sec.  13.4.1(a),
27.2.3 and 25-4-39 R.I. Code R. Sec. Sec.  39.5.4, 39.7.5(a),
39.7.6(b), 39.7.7(e), 39.7.8(f), 39.7.9(e), 39.7.11(c)(2), that it
alleged are inconsistent with the CAA and the EPA's SSM Policy.
However, the Petitioner did not request that the EPA address those
provisions in its remedy request, and thus the EPA is not addressing
those provisions in this action. The EPA may elect to evaluate those
provisions in a later action.
---------------------------------------------------------------------------

b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that excess
emissions during malfunctions are not violations are inconsistent with
the fundamental requirements of the CAA with respect to emission
limitations in SIPs.
    The EPA believes that 25-4-13 R.I. Code R. Sec.  16.2 is
impermissible under the CAA as interpreted in the EPA's SSM Policy, due
to an insufficiently bounded director's discretion provision. The
provision specifies a mechanism for a variance to be granted ``[i]n the
event that the malfunction of an air pollution control system is
expected or may reasonably be expected to continue for longer than 24
hours.'' This provision could be read to mean that once a state
official has exempted excess emissions during malfunctions from
otherwise applicable SIP limitations, those excess emissions are not
violations. As discussed in section VII.A of this notice, such
director's discretion provisions are impermissible. Such an
interpretation would make the state official the unilateral arbiter of
whether the excess emissions in a given event constitute a violation,
which could preclude enforcement by the EPA or the public who might
disagree about whether enforcement action is warranted. Most
importantly, however, the provision may be read to authorize the state
official to create an exemption from the emission limitation, and such
an exemption is impermissible in the first instance. The EPA believes
that inclusion of an insufficiently bounded director's discretion
provision in 25-4-13 R.I. Code R. Sec.  16.2 is thus a substantial
inadequacy and renders this specific SIP provision impermissible for
this reason.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to 25-4-13 R.I.
Code R. Sec.  16.2. The EPA believes that this provision allows for
exemptions from otherwise applicable emission limitations through a
state official's unilateral exercise of discretionary authority that is
insufficiently bounded. Such provisions are inconsistent with the
fundamental requirements of the CAA with respect to emission
limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C),
and 302(k). For these reasons, the EPA is proposing to find that this
provision is substantially inadequate to meet CAA requirements and thus
proposing to issue a SIP call with respect to this provision.

C. Affected States in EPA Region II

1. New Jersey
a. Petitioner's Analysis
    The Petitioner objected to two specific provisions in the New
Jersey SIP that allow for automatic exemptions for excess emissions
during emergency situations.\104\ The Petitioner objected to the first
provision because it provides industrial process units that have the
potential to emit sulfur compounds an exemption from the otherwise
applicable sulfur emission limitations where ``[t]he discharge from any
stack or chimney [has] the sole function of relieving pressure of gas,
vapor or liquid under abnormal emergency conditions'' (N.J. Admin. Code
7:27-7.2(k)(2)). The Petitioner argued that such an exemption is
inconsistent with the requirements of the CAA and the EPA's SSM Policy.
The Petitioner argued that the CAA and the EPA's interpretation of the
CAA in the SSM Policy require that all such excess emissions be treated
as violations.
---------------------------------------------------------------------------

    \104\ Petition at 53-54.
---------------------------------------------------------------------------

    The Petitioner objected to the second provision because it provides
electric generating units (EGUs) an exemption from the otherwise
applicable NOX emission limitations when the unit is
operating at ``emergency capacity,'' also known as a ``MEG alert,''
which is statutorily defined as a period in which one or more EGUs is
operating at emergency capacity at the direction of the load dispatcher
in order to prevent or mitigate voltage reductions or interruptions in
electric service, or both (N.J. Admin. Code 7:27-19.1). The Petitioner
argued that this source-specific exemption from the emission
limitations ``cannot ensure compliance with the NAAQS and PSD
increments for NOX because ambient air quality is nowhere
mentioned as a relevant consideration.'' \105\
---------------------------------------------------------------------------

    \105\ Petition at 54.
---------------------------------------------------------------------------

b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations. In accordance with the
requirements of CAA section 110(a)(2)(A), SIPs must contain emission
limitations and, in accordance with the definition of ``emission
limitations'' in CAA section 302(k), such emission limitations must be
continuous. Thus, any excess emissions above the level of the
applicable emission limitation must be considered violations of such
limitations, whether or not the state elects to exercise its
enforcement discretion. SIP provisions that create exemptions such that
excess emissions during emergency conditions, however defined, are not
violations are inconsistent with the fundamental requirements of the
CAA with respect to emission limitations in SIPs.
    The first provision identified by the Petitioner explicitly states
that emission limitations of sulfur compounds ``shall not apply'' to
emissions coming from a stack or a chimney during ``abnormal emergency
conditions,'' when the discharges are solely to relieve pressure of
gas, vapor, or liquid. The EPA believes that inclusion of such an
exemption from emission limitations in N.J. Admin. Code 7:27-7.2(k)(2)
is a substantial inadequacy and renders this specific SIP provision
impermissible. The EPA notes that this exemption is impermissible even
though the state has imposed the limitation that such exemption would
apply only during ``abnormal emergency conditions.'' The core problem
remains that the provision provides an impermissible exemption from the
sulfur compound emission limitations otherwise applicable under the
SIP.
    With regard to the second provision raised by the Petitioner (N.J.
Admin. Code 7:27-19.1), the EPA disagrees that it is a substantial
inadequacy in the SIP, because the exemption from the NOX
emission limitations ceased to be applicable after November 15, 2005.
Because the statute's exemption applies only to those emergency
situations, or

``MEG alerts,'' that occur ``on or before November 15, 2005'' (N.J.
Admin. Code 7:27-19.1), the Petitioner's claim is moot.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to N.J. Admin.
Code 7:27-7.2(k)(2). The EPA believes that this provision allows for an
exemption from the otherwise applicable emission limitations, and that
such an exemption is inconsistent with the fundamental requirements of
the CAA with respect to emission limitations in SIPs as required by CAA
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For this reason, the
EPA is proposing to find that this provision is substantially
inadequate to meet CAA requirements and thus is proposing to issue a
SIP call with respect to this provision. The EPA proposes to deny the
Petition with respect to N.J. Admin. Code 7:27-19.1, because its
effectiveness expired on November 15, 2005, and therefore Petitioner's
claim with regard to the impermissibility of this provision is moot.
2. [Reserved]

D. Affected States in EPA Region III

1. Delaware
a. Petitioner's Analysis
    The Petitioner objected to seven provisions in the Delaware SIP
that provide exemptions during startup and shutdown from the otherwise
applicable SIP emission limitations.\106\ The seven source-specific and
pollutant-specific provisions that provide exemptions during periods of
startup and shutdown are: 7-1100-1104 Del. Code Regs Sec.  1.5
(Particulate Emissions from Fuel Burning Equipment); 7-1100-1105 Del.
Code Regs Sec.  1.7 (Particulate Emissions from Industrial Process
Operations); 7-1100-1108 Del. Code Regs Sec.  1.2 (Sulfur Dioxide
Emissions from Fuel Burning Equipment); 7-1100-1109 Del. Code Regs
Sec.  1.4 (Emissions of Sulfur Compounds From Industrial Operations);
7-1100-1114 Del. Code Regs Sec.  1.3 (Visible Emissions); 7-1100-1124
Del. Code Regs Sec.  1.4 (Control of Volatile Organic Compound
Emissions); and 7-1100-1142 Del. Code Regs Sec.  2.3.5 (Specific
Emission Control Requirements). These provisions provide exemptions to
the emission limitations during startup and shutdown when ``the
emissions * * * during start-up and shutdown are governed by an
operation permit issued pursuant to the provisions of 2.0 of 7 DE
Admin. Code 1102.'' (E.g., 7-1100-1104 Del. Code Regs Sec.  1.5.)
---------------------------------------------------------------------------

    \106\ Petition at 28-29.
---------------------------------------------------------------------------

    The Petitioner objected to these provisions because they provide a
state official with the discretion, through the permitting process, to
exempt sources from otherwise applicable SIP emission limitations or to
set alternative limitations for periods of startup and shutdown. The
Petitioner argued that such discretion is not permissible because the
CAA and the EPA's interpretation of the CAA in the SSM Policy require
that all such excess emissions be treated as violations. Moreover, the
Petitioner argued that any alternative limits for periods of startup
and shutdown created by the state official through the permitting
process do not meet the requirements of the Act and the EPA's SSM
Policy, because there is no requirement in the provision that the
limits be narrowly tailored, source-specific, created in consultation
with the EPA, and approved into the Delaware SIP by the EPA.
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup and shutdown could be deemed not a violation
of the applicable emission limitations are inconsistent with the
fundamental requirements of the CAA with respect to emission
limitations in SIPs.
    The EPA believes that the seven provisions raised by the Petitioner
are impermissible because they are unbounded director's discretion
provisions, created through the state permitting program, in which
state officials are provided unbounded discretion to set alternative
limits and could therefore provide an outright exemption from the
emission limitations. In each of the provisions raised by the
Petitioner, an exemption from the SIP's emission limitations during
periods of startup and shutdown is automatically granted if the permit
to which the source is subject has terms or conditions governing
emissions during startup and shutdown. The SIP provisions therefore
vest state officials with the unilateral power to establish alternative
limits, or to create an exemption altogether, in permits by deeming
such periods of excess emissions during startup and shutdown
permissible. Were the state to exercise its discretion and decide on a
case-by-case basis that such an event was not a violation of the
emission limitations, the EPA and citizens could be precluded from
enforcement. More importantly, however, an exemption from the emission
limitations is impermissible in the first instance, and these
provisions purport to authorize state officials in the permitting
context to grant such exemptions. These provisions therefore undermine
the SIP's emission limitations and the emissions reductions they are
intended to achieve and render them less enforceable by the EPA or
through a citizen suit. The EPA believes that the inclusion of
insufficiently bounded director's discretion provisions in 7-1100-1104
Del. Code Regs Sec.  1.5, 7-1100-1105 Del. Code Regs Sec.  1.7, 7-1100-
1108 Del. Code Regs Sec.  1.2, 7-1100-1109 Del. Code Regs Sec.  1.4, 7-
1100-1114 Del. Code Regs Sec.  1.3, 7-1100-1124 Del. Code Regs Sec.
1.4, and 7-1100-1142 Del. Code Regs Sec.  2.3.5 is thus a substantial
inadequacy and renders these specific SIP provisions impermissible for
this reason.
    In addition, the EPA agrees with the Petitioner that while the CAA,
as interpreted in the EPA's SSM Policy, allows states to set source
category-specific alternative emission limitations or other forms of
enforceable control measures or techniques that apply during periods of
startup and shutdown, such alternative limitations are only permitted
in a narrow set of circumstances and must be accomplished through the
appropriate SIP process (see section VII.A of this notice.) Those
alternative limitations must be developed in consultation with the EPA
and must be approved by the EPA into the SIP. The provisions of
Delaware's SIP raised by the Petitioner purport to authorize the state
to establish alternative limitations for excess emissions during
periods of startup and shutdown (or to exempt those emissions
altogether, as discussed above) on a case-by-case basis in the
permitting process, and the provisions do not require the state to
consult with the EPA or have those alternative limits approved by the
EPA into the SIP. The EPA believes that the inclusion of processes to
establish alternative limits for some sources and in regard to some

pollutants in a manner that does not conform with the requirements of
the Act as interpreted in the EPA's SSM Policy in 7-1100-1104 Del. Code
Regs Sec.  1.5, 7-1100-1105 Del. Code Regs Sec.  1.7, 7-1100-1108 Del.
Code Regs Sec.  1.2, 7-1100-1109 Del. Code Regs Sec.  1.4, 7-1100-1114
Del. Code Regs Sec.  1.3, 7-1100-1124 Del. Code Regs Sec.  1.4, and 7-
1100-1142 Del. Code Regs Sec.  2.3.5 is thus a substantial inadequacy
and renders these specific SIP provisions impermissible, in addition to
the creation of unbounded discretion in a state official.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to 7-1100-1104
Del. Code Regs Sec.  1.5, 7-1100-1105 Del. Code Regs Sec.  1.7, 7-1100-
1108 Del. Code Regs Sec.  1.2, 7-1100-1109 Del. Code Regs Sec.  1.4, 7-
1100-1114 Del. Code Regs Sec.  1.3, 7-1100-1124 Del. Code Regs Sec.
1.4, and 7-1100-1142 Del. Code Regs Sec.  2.3.5. The EPA believes that
these provisions allow for exemptions from otherwise applicable SIP
emission limitations, and that such outright exemptions are
inconsistent with the fundamental requirements of the CAA with respect
to emission limitations in SIPs in sections 110(a)(2)(A), 110(a)(C),
and 302(k). In addition, the aforementioned provisions each allow for
such exemptions through a state official's unilateral exercise of
insufficiently bounded discretionary authority in the permitting
process, and such provisions are inconsistent with the fundamental
requirements of the CAA with respect to SIPs and SIP revisions.
Moreover, the discretion in these provisions also allows state
officials to establish alternative emission limitations during periods
of startup and shutdown through a process that does not conform to the
requirements of the Act or the EPA's SSM Policy with regard to
establishing alternative emission limitations. For these reasons, the
EPA is proposing to find that these provisions are substantially
inadequate to meet CAA requirements and thus is proposing to issue a
SIP call with respect to these provisions.
2. District of Columbia
a. Petitioner's Analysis
    The Petitioner objected to five provisions in the District of
Columbia (D.C.) SIP as being inconsistent with the CAA and the EPA's
SSM Policy.\107\ The Petitioner first objected to a generally
applicable provision in the D.C. SIP that allows for discretionary
exemptions during periods of maintenance or malfunction (D.C. Mun.
Regs. tit. 20 Sec.  107.3). The provision provides the Mayor with the
authority to permit continued operation of a stationary source when air
pollution controls are shut down due to maintenance or malfunction. The
Petitioner argued that this provision could provide an exemption from
the otherwise applicable SIP emission limitations, and such an
exemption is impermissible under the CAA because the statute and the
EPA's interpretation of the CAA in the SSM Policy require that all such
excess emissions be treated as violations. Moreover, the Petitioner
objected to this discretionary exemption because the Mayor's grant of
permission to continue to operate during the period of malfunction or
maintenance could be interpreted to excuse excess emissions during such
time period and could thus be read to preclude enforcement by the EPA
or citizens in the event that the Mayor elects not to treat the event
as a violation. Thus, in addition to creating an impermissible
exemption for the excess emissions, the Petitioner argued, the
provision is also inconsistent with the CAA as interpreted in the EPA's
SSM Policy because it allows the Mayor to make a unilateral decision
that the excess emissions were not a violation and thus purports to bar
enforcement for the excess emissions by the EPA and citizens.
---------------------------------------------------------------------------

    \107\ Petition at 29-30.
---------------------------------------------------------------------------

    Secondly, the Petitioner objected to the alternative limitations on
stationary sources for visible emissions during periods of ``start-up,
cleaning, soot blowing, adjustment of combustion controls, or
malfunction,'' (D.C. Mun. Regs. tit. 20 Sec.  606.1) and, for fuel-
burning equipment placed in initial operation before January 1977,
alternative limits for visible emissions during startup and shutdown
(D.C. Mun. Regs. tit. 20 Sec.  606.2). The Petitioner also objected to
the exemption from emission limitations for emergency standby engines
(D.C. Mun. Regs. tit. 20 Sec.  805.1(c)(2)). The Petitioner argued that
these provisions could provide exemptions or deviations from the
otherwise applicable SIP emission limitations, and such exemptions are
impermissible under the CAA because the statute and the EPA's
interpretation of the CAA in the SSM Policy require that all such
excess emissions be treated as violations. Moreover, the Petitioner
argued that the alternative limits do not appear to meet the criteria
for a source category-specific rule as permitted under the EPA's SSM
Policy interpreting the Act.
    Finally, the Petitioner objected to the provision in the D.C. SIP
that provides an affirmative defense for violations of visible emission
limitations during ``unavoidable malfunction'' (D.C. Mun. Regs. tit. 20
Sec.  606.4). The Petitioner objected to this provision because the
elements of the defense are not laid out clearly in the SIP, because
the term ``affirmative defense'' is not defined in the SIP, and
finally, the Petitioner argues, because affirmative defenses for any
excess emissions are wholly inconsistent with the CAA and should be
removed from the SIP.
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, load change, or emergencies are not
violations of the applicable emission limitations are inconsistent with
the fundamental requirements of the CAA with respect to emission
limitations in SIPs. The EPA believes that the inclusion of such an
exemption from the emission limitations in D.C. Mun. Regs. tit. 20
Sec.  107.3 is thus a substantial inadequacy and renders this specific
SIP provision impermissible.
    The EPA believes that D.C. Mun. Regs. tit. 20 Sec.  107.3 is also
impermissible due to an unbounded director's discretion provision that
purports to make the Mayor the unilateral arbiter of whether the excess
emissions in a given event constitute a violation. In the case of D.C.
Mun. Regs. tit. 20 Sec.  107.3, the provision authorizes the Mayor to
permit continued operation at stationary sources without functioning
air pollution control equipment. The Mayor's grant of permission to
continue to operate during the period of malfunction or maintenance
could be interpreted to excuse excess emissions from that time period,
and it could thus be read to preclude enforcement by the EPA or through
a citizen suit in the event that the Mayor elects not to treat the
event as a violation. In addition, the provision vests the Mayor with
the unilateral power to grant an exemption from the

otherwise applicable SIP emission limitation, without any additional
public process at the D.C. or federal level, and without any bounds or
parameters to the exercise of this discretion. Most importantly,
however, the provision purports to authorize the Mayor to create an
exemption from the emission limitation, and such an exemption is
impermissible in the first instance. Such a director's discretion
provision undermines the emission limitations and the emissions
reductions they are intended to achieve and renders them less
enforceable by the EPA or through a citizen suit. The EPA believes that
the inclusion of an unbounded director's discretion provision in D.C.
Mun. Regs. tit. 20 Sec.  107.3 is thus a substantial inadequacy and
renders this specific SIP provision impermissible for this reason, in
addition to the creation of an impermissible exemption.
    The EPA notes that while the CAA does not allow for exemptions for
excess emissions, it does, as discussed in section VII.A of this
notice, allow states to develop alternative emission limitations or
other forms of enforceable control measures or techniques that apply
during startup or shutdown. The EPA believes that emission limitations
in SIPs should generally be developed in the first instance to account
for the types of normal operation outlined in D.C. Mun. Regs. tit. 20
Sec.  606.1, such as cleaning, soot blowing, and adjustment of
combustion controls. The D.C. Mun. Regs. tit. 20 Sec. Sec.  606.1 and
606.2 do not appear to comply with the CAA's requirements as
interpreted in the EPA's SSM Policy. The alternative limitations on
stationary sources for visible emissions during periods of ``start-up,
cleaning, soot blowing, adjustment of combustion controls, or
malfunction,'' (D.C. Mun. Regs. tit. 20 Sec.  606.1) do not comply with
the Act and the EPA's policy interpreting the Act, because, for
instance, they do not apply only to ``specific, narrowly-defined source
categories using specific control strategies.'' \108\ The EPA believes
that the inclusion of these alternative limitations, which do not
comply with the requirements of the Act, in D.C. Mun. Regs. tit. 20
Sec. Sec.  606.1 and 606.2 is thus a substantial inadequacy and renders
these specific SIP provisions impermissible.
---------------------------------------------------------------------------

    \108\ 1999 SSM Guidance Attachment at 4-5.
---------------------------------------------------------------------------

    With respect to the Petitioner's objection to the exemption for
emergency standby engines (D.C. Mun. Regs. tit. 20 Sec.  805.1(c)(2)),
the EPA disagrees that this provision applies to an exemption from
emission limitations during startup, shutdown, or malfunction periods.
Instead, this provision applies to a specific source category that is
not subject to control under the D.C. SIP. At this point in time, the
SIP reflects that regulation of this source category is not necessary
in the SIP in order to meet the applicable reasonably available control
technology (RACT) requirements or other CAA requirements in this area.
The EPA therefore disagrees with Petitioner that D.C. Mun. Regs. tit.
20 Sec.  805.1(c)(2) renders the D.C. SIP substantially inadequate.
    Finally, the EPA agrees with the Petitioner that the affirmative
defense contained in D.C. Mun. Regs. tit. 20 Sec.  606.4 is not an
acceptable affirmative defense provision under the CAA as interpreted
the EPA's SSM Policy. Although the EPA believes that narrowly drawn
affirmative defenses are permitted under the CAA for malfunction events
(see section VII.B of this notice), the EPA's interpretation of the CAA
is that such affirmative defenses can only shield the source from
monetary penalties and cannot be a bar to injunctive relief. An
affirmative defense provision that purports to bar any enforcement
action for injunctive relief for violations of emission limitations is
inconsistent with the requirements of CAA sections 113 and 304.
Furthermore, the SIP provision is deficient because while it appears to
create an affirmative defense, it does so with conditions that are not
consistent with the criteria that the EPA recommends in the SSM Policy.
The EPA acknowledges that the SSM Policy is only guidance concerning
what types of SIP provisions could be consistent with the requirements
of the CAA. Nonetheless, through this rulemaking, the EPA is proposing
to determine that D.C. Mun. Regs. tit. 20 Sec.  606.4 does not include
criteria that are sufficiently robust to qualify as an acceptable
affirmative defense provision. The EPA believes that the inclusion of
the complete bar to liability, including injunctive relief, and the
insufficiently robust qualifying criteria in D.C. Mun. Regs. tit. 20
Sec.  606.4 are substantial inadequacies and render this specific SIP
provision impermissible.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to D.C. Mun.
Regs. tit. 20 Sec.  107.3. The EPA believes that this provision allows
for exemptions from the otherwise applicable SIP emission limitations,
and that such exemptions are inconsistent with the fundamental
requirements of the CAA with respect to emission limitations in SIPs in
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, D.C. Mun.
Regs. tit. 20 Sec.  107.3 allows for such an exemption through a state
official's unilateral exercise of discretionary authority that is
unbounded and includes no additional public process at the D.C. or
federal level, and such provisions are inconsistent with the
fundamental requirements of the CAA with respect to SIPs and SIP
revisions. For these reasons, the EPA is proposing to find that D.C.
Mun. Regs. tit. 20 Sec.  107.3 is substantially inadequate to meet CAA
requirements and thus proposing to issue a SIP call with respect to
this provision.
    The EPA also proposes to grant the Petition with respect to D.C.
Mun. Regs. tit. 20 Sec. Sec.  606.1 and 606.2. The EPA believes that
section 606.1 impermissibly provides an alternative visible emission
limitation to stationary sources during periods of malfunction and
during planned maintenance events. Furthermore, while sections 606.1
and 606.2 appropriately provide alternative visible emission
limitations only during periods of startup and shutdown, both sections
apply to a broad category of sources and are not narrowly limited to a
source category employing a specific control strategy, as required by
the CAA as interpreted in the EPA's SSM Policy. For these reasons, the
EPA is proposing to find that D.C. Mun. Regs. tit. 20 Sec. Sec.  606.1
and 606.2 are substantially inadequate to meet CAA requirements and is
thus proposing to issue a SIP call with respect to these provisions.
    The EPA proposes to deny the Petition with respect to D.C. Mun.
Regs. tit. 20 Sec.  805.1(c)(2). The EPA disagrees that this provision
applies to an exemption from emission limitations during startup,
shutdown, or malfunction periods. Rather, this provision applies to a
specific source category that is not subject to control under the D.C.
SIP. At this point in time, the SIP reflects that regulation of this
source category is not necessary in the SIP in order to meet the
applicable RACT requirements or other CAA requirements in this area.
    Finally, the EPA proposes to grant the petition with respect to
D.C. Mun. Regs. tit. 20 Sec.  606.4 because it is not a permissible
affirmative defense provision consistent with the requirements of the
CAA and the EPA's recommendations in the EPA's SSM Policy. By
purporting to create a bar to enforcement that applies not just to
monetary penalties but also to injunctive relief, this provision is
inconsistent with the requirements of

CAA sections 113 and 304. By not including sufficient criteria to
assure that sources seeking to raise the affirmative defense have in
fact been properly designed, maintained, and operated, and to assure
that sources have taken all appropriate steps to minimize excess
emissions, the provision also fails to be sufficiently narrowly drawn
to justify shielding from monetary penalties for violations. Thus, this
provision is not appropriate as an affirmative defense provision
because it is inconsistent with fundamental requirements of the CAA.
For these reasons, the EPA is proposing to find that this provision is
substantially inadequate to meet CAA requirements and thus proposing to
issue a SIP call with respect to this provision.
3. Virginia
a. Petitioner's Analysis
    The Petitioner objected to a generally applicable provision in the
Virginia SIP that allows for discretionary exemptions during periods of
malfunction (9 Va. Admin. Code Sec.  5-20-180(G)).\109\ First, the
Petitioner objected because this provision provides an exemption from
the otherwise applicable SIP emission limitations, and such an
exemption is impermissible under the CAA because the statute and the
EPA's interpretation of the CAA in the SSM Policy require that all such
excess emissions be treated as violations. The Petitioner argued that
the CAA and the EPA's interpretation of the CAA in the SSM Policy
require that all such excess emissions be treated as violations.
---------------------------------------------------------------------------

    \109\ Petition at 70-71.
---------------------------------------------------------------------------

    Second, the Petitioner objected to the discretionary exemption for
excess emissions during malfunction because the provision gives the
state the authority to determine whether a violation ``shall be judged
to have taken place'' (9 Va. Admin. Code Sec.  5-20-180(G)). The
Petitioner argued that this provision could be read to preclude
enforcement by the EPA or citizens in the event that the state elects
not to treat the event as a violation. Thus, in addition to creating an
impermissible exemption for the excess emissions, the Petitioner
argued, the provision is also inconsistent with the CAA and the EPA's
SSM Policy because it allows the state to make a unilateral decision
that the excess emissions were not a violation and thus purports to bar
enforcement for the excess emissions by the EPA and citizens.
    Third, the Petitioner argued that while the regulation provides
criteria, akin to an affirmative defense, by which the state must make
such a judgment that the event is not a violation, the criteria ``fall
far short of EPA policy'' and the provision ``fails to establish any
procedure through which the criteria are to be evaluated.''
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions such as 9 Va. Admin. Code Sec.  5-20-180(G)
that create exemptions by authorizing the state to determine that the
excess emissions during startup, shutdown, load change, or emergencies
are not violations of the applicable emission limitations are
inconsistent with the fundamental requirements of the CAA with respect
to emission limitations in SIPs. The EPA believes that the inclusion of
such an exemption in 9 Va. Admin. Code Sec.  5-20-180(G) is thus a
substantial inadequacy and renders this specific SIP provision
impermissible.
    The EPA believes that 9 Va. Admin. Code Sec.  5-20-180(G) is also
impermissible due to the inclusion of a director's discretion provision
that purports to make the state official the unilateral arbiter of
whether the excess emissions in a given malfunction event constitute a
violation. In the case of 9 Va. Admin. Code Sec.  5-20-180(G), the
provision authorizes the state official to judge that ``no violation''
has taken place. The provision therefore vests the state official with
the unilateral power to grant an exemption from the otherwise
applicable SIP emission limitation, without any additional public
process at the state or federal level. By deciding that an exceedance
of the emission limitation was not a ``violation,'' exercise of this
discretion could preclude enforcement by the EPA or the public who may
not agree with that conclusion. Most importantly, however, the
provision purports to authorize the state official to create an
exemption from the otherwise applicable SIP emission limitation, and
such an exemption is impermissible in the first instance. Such a
director's discretion provision undermines the emission limitations in
the SIP and the emissions reductions that they are intended to achieve
and renders them less enforceable by the EPA or through a citizen suit.
The EPA believes that the inclusion of a director's discretion
provision in 9 Va. Admin. Code Sec.  5-20-180(G) is thus a substantial
inadequacy and renders this specific SIP provision impermissible for
this reason, in addition to the creation of an impermissible exemption.
    Finally, the EPA agrees with Petitioner that although the exemption
requires that certain conditions must be met by the source, the
conditions set forth in the provision do not render it an acceptable
affirmative defense provision. The Petitioner is correct that 9 Va.
Admin. Code Sec.  5-20-180(G) is not an acceptable affirmative defense
provision under the CAA as interpreted in the EPA's SSM Policy.
Although the EPA believes that narrowly drawn affirmative defenses are
permitted under the CAA for malfunction events (see section VII.B of
this notice), the EPA's interpretation of the CAA is that such
affirmative defenses can only shield the source from monetary penalties
and cannot be a bar to injunctive relief. An affirmative defense
provision that purports to bar any enforcement action for injunctive
relief for violations of emission limitations is inconsistent with the
requirements of CAA sections 113 and 304. Furthermore, Virginia's SIP
provision is deficient because even if it attempts to create an
affirmative defense rather than an automatic exemption from the
emission limitations, it does so with conditions that are not
consistent with the criteria that the EPA recommends in the SSM Policy.
The EPA acknowledges that the SSM Policy is only guidance concerning
what types of SIP provisions could be consistent with the requirements
of the CAA. Nonetheless, through this rulemaking, the EPA is proposing
to determine that 9 Va. Admin. Code Sec.  5-20-180(G) does not include
criteria that are sufficiently robust to qualify as an acceptable
affirmative defense provision under the CAA. The EPA believes that the
inclusion of the complete bar to liability, including injunctive
relief, and the insufficiently robust qualifying criteria in 9 Va.
Admin. Code Sec.  5-20-180(G) are substantial inadequacies and render
this specific SIP provision impermissible.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to 9 Va. Admin.
Code Sec.  5-20-180(G). The EPA believes

that this provision allows for an exemption from the otherwise
applicable SIP emission limitations, and that such exemptions are
inconsistent with the fundamental requirements of the CAA with respect
to emission limitations in SIPs in sections 110(a)(2)(A), 110(a)(2)(C),
and 302(k). In addition, 9 Va. Admin. Code Sec.  5-20-180(G) allows for
such an exemption through a state official's unilateral exercise of
discretionary authority that includes no additional public process at
the state or federal level, and such provisions are inconsistent with
the fundamental requirements of the CAA with respect to SIPs and SIP
revisions.
    Moreover, even if the EPA were to consider 9 Va. Admin. Code Sec.
5-20-180(G) as providing for an affirmative defense rather than an
automatic exemption, the provision is not a permissible affirmative
defense provision consistent with the requirements of the CAA as
interpreted in the EPA's recommendations in the EPA's SSM Policy. By
purporting to create a bar to enforcement that applies not just to
monetary penalties but also to injunctive relief, this provision is
inconsistent with the requirements of CAA sections 113 and 304. By not
including sufficient criteria to assure that sources seeking to raise
the affirmative defense have in fact been properly designed,
maintained, and operated, and to ensure that sources have taken all
appropriate steps to minimize excess emissions, the provision also
fails to be sufficiently narrowly drawn to justify shielding from
monetary penalties for violations. Thus, this provision is not
appropriate as an affirmative defense provision because it is
inconsistent with fundamental requirements of the CAA.
    For these reasons, the EPA is proposing to find that this provision
is substantially inadequate to meet CAA requirements and thus proposing
to issue a SIP call with respect to this provision.
4. West Virginia
a. Petitioner's Analysis
    The Petitioner made four types of objections identifying
inadequacies regarding startup, shutdown, and malfunction provisions in
West Virginia's SIP.\110\ First, the Petitioner objected to three
specific provisions in the West Virginia SIP that allow for automatic
exemptions from emission limitations, standards, and monitoring and
recordkeeping requirements for excess emission during startup,
shutdown, or malfunction (W. Va. Code R. Sec.  45-2-9.1, W. Va. Code R.
Sec.  45-7-10.3, and W. Va. Code R. Sec.  45-40-100.8). The Petitioner
objected because all three of these provisions provide exemptions from
the otherwise applicable SIP emission limitations, and such exemptions
are inconsistent with the requirements of the CAA as interpreted in the
EPA's SSM Policy. The Petitioner argued that the CAA and the EPA's
interpretation of the CAA in the SSM Policy require that all such
excess emissions be treated as violations. The Petitioner also objected
to all three of these provisions because, by providing an outright
exemption from otherwise applicable requirements, the state has defined
these excess emissions as not violations, thereby precluding
enforcement by the EPA or citizens for the excess emissions that would
otherwise be violations.
---------------------------------------------------------------------------

    \110\ Petition at 72-74.
---------------------------------------------------------------------------

    Second, the Petitioner objected to seven discretionary exemption
provisions because these provisions provide exemptions from the
otherwise applicable SIP emission limitations, and such exemptions are
impermissible under the CAA because the statute and the EPA's
interpretation of the CAA in the SSM Policy require that all such
excess emissions be treated as violations. The Petitioner noted that
the provisions allow a state official to ``grant an exception to the
otherwise applicable visible emissions standards'' due to ``unavoidable
shortage of fuel'' or ``any emergency situation or condition creating a
threat to public safety or welfare'' (W. Va. Code R. Sec.  45-2-10.1),
to permit excess emissions ``due to unavoidable malfunctions of
equipment'' (W. Va. Code R. Sec.  45-3-7.1, W. Va. Code R. Sec.  45-5-
13.1, W. Va. Code R. Sec.  45-6-8.2, W. Va. Code R. Sec.  45-7-9.1, and
W. Va. Code R. Sec.  45-10-9.1), and to permit exceedances where the
limit cannot be ``satisfied'' because of ``routine maintenance'' or
``unavoidable malfunction'' (W. Va. Code R. Sec.  45-21-9.3). The
Petitioner argued that these provisions could be read to preclude
enforcement by the EPA or citizens in the event that the state official
elects not to treat the event as a violation. Thus, in addition to
creating an impermissible exemption for the excess emissions, the
Petitioner argued, the SIP's provisions are also inconsistent with the
CAA as interpreted in the EPA's SSM Policy because they allow the state
official to make a unilateral decision that the excess emissions were
not a violation and thus purport to bar enforcement for the excess
emissions by the EPA and citizens.
    Third, the Petitioner objected to the alternative limit imposed on
hot mix asphalt plants during periods of startup and shutdown in W. Va.
Code R. Sec.  45-3-3.2 because it was ``not sufficiently justified''
under the requirements of source category-specific rules. The
Petitioner argued that this provision could provide an unacceptable
deviation during periods of startup and shutdown from the otherwise
applicable SIP emission limitations, and such deviations are
impermissible under the CAA because the statute and the EPA's
interpretation of the CAA in the SSM Policy require that all such
excess emissions be treated as violations. Moreover, the Petitioner
argued that the alternative limits do not appear to meet the criteria
for a source category-specific rule as permitted under the Act as
interpreted in the EPA's SSM Policy.
    Fourth, the Petitioner objected to a discretionary provision
allowing the state to approve an alternative visible emission standard
during startups and shutdowns for manufacturing processes and
associated operations (W. Va. Code R. Sec.  45-7-10.4). The Petitioner
argued that such a provision ``allows a decision of the state to
preclude enforcement by EPA and citizens.''
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for automatic exemptions
from otherwise applicable SIP emission limitations. In accordance with
the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations of such limitations, whether or not the state elects to
exercise its enforcement discretion. SIP provisions that create
exemptions such that the excess emissions during startup, shutdown, or
malfunction are not violations are inconsistent with the fundamental
requirements of the CAA with respect to emission limitations in SIPs.
Two of the automatic exemption provisions identified by the Petitioner
explicitly state that the standards shall not apply or that certain
operations ``shall be exempt'' during periods of startup, shutdown,
malfunction, or maintenance (W. Va. Code R. Sec.  45-2-9.1, W. Va. Code
R. Sec.  45-7-10.3). The third automatic exemption states that
requirements for monitoring, recordkeeping, and reporting will not
apply under certain circumstances (W. Va. Code R. Sec.  45-40-100.8).
Such an

exemption would affect the enforceability of the emission limitations
and thus adversely affects the approvability of the emission
limitations themselves. Moreover, failure to account accurately for
excess emissions at sources during SSM events has a broader impact on
NAAQS implementation and SIP planning, because such accounting directly
informs the development of emissions inventories and emissions
modeling. The exemptions therefore provide that the resulting excess
emissions will not be violations, which is contrary to the requirements
of the CAA. The EPA believes that the inclusion of such automatic
exemptions from emission limitations in W. Va. Code R. Sec.  45-2-9.1,
W. Va. Code R. Sec.  45-7-10.3, and W. Va. Code R. Sec.  45-40-100.8,
is thus a substantial inadequacy and renders these specific SIP
provisions impermissible.
    With respect to the Petitioner's concern that these exemptions
preclude enforcement by the EPA or citizens, the EPA agrees that this
is one of the critical reasons why such provisions are impermissible
under the CAA. By having SIP provisions that define what would
otherwise be violations of the applicable emission limitations as non-
violations, the state has effectively negated the ability of the EPA or
the public to enforce against those violations.
    The EPA also agrees that the CAA does not allow for discretionary
exemptions from otherwise applicable SIP emission limitations. As noted
above, in accordance with the requirements of CAA section 110(a)(2)(A),
SIPs must contain emission limitations and, in accordance with the
definition of ``emission limitations'' in CAA section 302(k), such
emission limitations must be continuous. Thus, any excess emissions
above the level of the applicable emission limitation must be
considered violations, whether or not the state elects to exercise its
enforcement discretion. SIP provisions such as W. Va. Code R. Sec.  45-
2-10.1, W. Va. Code R. Sec.  45-3-7.1, W. Va. Code R. Sec.  45-5-13.1,
W. Va. Code R. Sec.  45-6-8.2, W. Va. Code R. Sec.  45-7-9.1, W. Va.
Code R. Sec.  45-10-9.1, and W. Va. Code R. Sec.  45-21-9.3 that create
exemptions by permitting the state to determine that the excess
emissions during startup, shutdown, load change, or emergencies are not
violations of the applicable emission limitations are inconsistent with
the fundamental requirements of the CAA with respect to emission
limitations in SIPs. The EPA believes that the inclusion of these
discretionary exemptions in the SIP is thus a substantial inadequacy
and renders these specific SIP provisions impermissible.
    The EPA believes that W. Va. Code R. Sec.  45-2-10.1, W. Va. Code
R. Sec.  45-3-7.1, W. Va. Code R. Sec.  45-5-13.1, W. Va. Code R. Sec.
45-6-8.2, W. Va. Code R. Sec.  45-7-9.1, W. Va. Code R. Sec.  45-10-
9.1, and W. Va. Code R. Sec.  45-21-9.3 are also impermissible because
these provisions purport to make a state official the unilateral
arbiter of whether the excess emissions in a given malfunction,
maintenance, or emergency event constitute a violation. In the case of
W. Va. Code R. Sec.  45-2-10.1, the provision allows the state official
to ``grant an exception to the otherwise applicable visible emissions
standards'' due to ``unavoidable shortage of fuel'' or ``any emergency
situation or condition creating a threat to public safety or welfare.''
W. Va. Code R. Sec.  45-3-7.1, W. Va. Code R. Sec.  45-5-13.1, W. Va.
Code R. Sec.  45-6-8.2, W. Va. Code R. Sec.  45-7-9.1, and W. Va. Code
R. Sec.  45-10-9.1 permit excess emissions ``due to unavoidable
malfunctions of equipment.'' The provision at W. Va. Code R. Sec.  45-
21-9.3 permits exceedances where the limit cannot be ``satisfied''
because of ``routine maintenance'' or ``unavoidable malfunction.''
    These provisions authorize the state official to judge that
violations have not occurred even though the emissions exceeded the
applicable SIP emission limitations. The SIP's provisions therefore
vest the state official with the unilateral power to grant exemptions
from otherwise applicable SIP emission limitations, without any
additional public process at the state or federal level. By deciding
that an exceedance of the emission limitation was not a ``violation,''
exercise of this discretion could preclude enforcement by the EPA or
through a citizen suit. Most importantly, however, the provision
purports to authorize the state official to create an exemption from
the otherwise applicable SIP emission limitation, and such an exemption
is impermissible in the first instance. Such a director's discretion
provision undermines the emission limitations and the emissions
reductions they are intended to achieve and renders them less
enforceable by the EPA or through a citizen suit. The EPA believes that
the inclusion of director's discretion provisions in W. Va. Code R.
Sec.  45-2-10.1, W. Va. Code R. Sec.  45-3-7.1, W. Va. Code R. Sec.
45-5-13.1, W. Va. Code R. Sec.  45-6-8.2, W. Va. Code R. Sec.  45-7-
9.1, W. Va. Code R. Sec.  45-10-9.1, and W. Va. Code R. Sec.  45-21-9.3
is thus a substantial inadequacy and renders these specific SIP
provisions impermissible for this reason, in addition to the creation
of an impermissible exemption.
    The EPA notes that while the CAA does not allow for exemptions for
excess emissions, it does, as discussed in section VII.A of this
notice, permit states to develop alternative emission limitations or
other forms of enforceable control measures or techniques that apply
during startup or shutdown. W. Va. Code R. Sec.  45-3-3.2 and W. Va.
Code R. Sec.  45-2-10.2 \111\ do not appear to comply with the Act's
requirements as interpreted in the EPA's SSM Policy. The alternative
smoke and/or particulate matter limitation on hot mix asphalt plants
that applies during periods of startup and shutdown (W. Va. Code R.
Sec.  45-3-3.2) does not comply with the CAA as interpreted in the
EPA's policy because, for instance, it does not apply only to
``specific, narrowly-defined source categories using specific control
strategies.'' \112\ W. Va. Code R. Sec.  45-2-10.2, which allows fuel-
burning units employing flue gas desulphurization systems to bypass
such systems during ``necessary planned or unplanned maintenance'' and
provides an alternative limit of 20-percent opacity during such
periods, also does not comply with the CAA as interpreted in the EPA's
SSM Policy. The EPA believes that such special emission limitations or
emissions controls may be appropriate during startup or shutdown, but
other modes of normal source operation, including maintenance, should
be accounted for in the development of the emission limitations
themselves. The EPA believes that the inclusion of alternative limits
that do not meet the requirements of the CAA as interpreted in the
EPA's SSM Policy in W. Va. Code R. Sec.  45-3-3.2 and W. Va. Code R.
Sec.  45-2-10.2 is thus a substantial inadequacy and renders these
specific SIP provisions impermissible for this reason.
---------------------------------------------------------------------------

    \111\ The EPA notes that the Petitioner specifically focused on
concern with W. Va. Code R. Sec.  45-2-10.1, but the same issue
affects W. Va. Code R. Sec.  45-2-10.2.
    \112\ 1999 SSM Guidance Attachment at 4-5.
---------------------------------------------------------------------------

    The EPA also agrees that the discretionary provision allowing a
state official to approve an alternative visible emission standard
during startups and shutdowns for manufacturing processes and
associated operations (W. Va. Code R. Sec.  45-7-10.4) does not comply
with the CAA or the EPA's SSM Policy interpreting the CAA. These
provisions purport to authorize the state official to establish
alternative limits for excess emissions during periods of startup and
shutdown (or, potentially, to exempt

those emissions altogether) on a case-by-case basis, and these
provisions do not require the state official to consult with the EPA or
to have those alternative limits approved by the EPA into the SIP,
contrary to the EPA's SSM Policy interpreting the requirements of the
CAA. The EPA believes that the inclusion of these alternative
limitations, which do not comply with the EPA's interpretations of the
requirements of the CAA, in W. Va. Code R. Sec.  45-3-3.2 and W. Va.
Code R. Sec.  45-7-10.4, is thus a substantial inadequacy and renders
these specific SIP provisions impermissible.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to W. Va. Code
R. Sec.  45-2-9.1, W. Va. Code R. Sec.  45-7-10.3, and W. Va. Code R.
Sec.  45-40-100.8. The EPA believes that each of these provisions
allows for automatic exemptions from the otherwise applicable SIP
emission limitations, and that such exemptions are inconsistent with
the fundamental requirements of the CAA with respect to emission
limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C),
and 302(k). In addition, by creating these impermissible exemptions,
the state has defined violations in way that would interfere with
effective enforcement by the EPA and citizens for excess emissions
during these events as provided in CAA sections 113 and 304. For these
reasons, the EPA is proposing to find that these provisions are
substantially inadequate to meet CAA requirements and thus proposing to
issue a SIP call with respect to these provisions.
    The EPA proposes to grant the Petition with respect to W. Va. Code
R. Sec.  45-2-10.1, W. Va. Code R. Sec.  45-3-7.1, W. Va. Code R. Sec.
45-5-13.1, W. Va. Code R. Sec.  45-6-8.2, W. Va. Code R. Sec.  45-7-
9.1, W. Va. Code R. Sec.  45-10-9.1, and W. Va. Code R. Sec.  45-21-
9.3. The EPA believes that these provisions allow for discretionary
exemptions from otherwise applicable SIP emission limitations, and that
such exemptions are inconsistent with the fundamental requirements of
the CAA with respect to emission limitations in SIPs as required by
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, these
provisions allow for exemptions through a state official's unilateral
exercise of discretionary authority that includes no additional public
process at the state or federal level, and such provisions are
inconsistent with the fundamental requirements of the CAA with respect
to SIPs and SIP revisions.
    The EPA also proposes to grant the Petition with respect to W. Va.
Code R. Sec.  45-3-3.2, W. Va. Code R. Sec.  45-2-10.2, and W. Va. Code
R. Sec.  45-7-10.4. The W. Va. Code R. Sec.  45-3-3.2 applies to a
broad category of sources and is not narrowly limited to a source
category that uses a specific control strategy, as required by the
EPA's SSM Policy interpreting the CAA. Similarly, W. Va. Code R. Sec.
45-2-10.2 is inconsistent with the EPA's SSM Policy interpreting the
CAA because it is an alternative limit that applies during periods of
maintenance, and such alternative limits are only permissible during
periods of startup and shutdown. The W. Va. Code R. Sec.  45-7-10.4
allows state officials the discretion to establish alternative visible
emissions standards during startup and shutdown upon application. This
provision is inconsistent with the EPA's SSM Policy and requirements
under the Act because, for example, the emission limitations are
required to be developed in consultation with the EPA and must be
included in the SIP itself. For these reasons, the EPA is proposing to
find that W. Va. Code R. Sec.  45-3-3.2, W. Va. Code R. Sec.  45-2-
10.2, and W. Va. Code R. Sec.  45-7-10.4 are substantially inadequate
to meet CAA requirements and is thus proposing to issue a SIP call with
respect to these provisions.

E. Affected States and Local Jurisdictions in EPA Region IV

1. Alabama
a. Petitioner's Analysis
    The Petitioner objected to two generally applicable provisions in
the Alabama SIP that allow for discretionary exemptions during startup,
shutdown, or load change (Ala Admin Code Rule 335-3-14-.03(1)(h)(1)),
and during emergencies (Ala Admin Code Rule 335-3-
14-.03(1)(h)(2)).113 114 First, the Petitioner objected
because both of these provisions provide exemptions from the otherwise
applicable emission limitations, and such exemptions are inconsistent
with the requirements of the CAA and the EPA's SSM Policy. The
Petitioner argued that the CAA and the EPA's interpretation of the CAA
in the SSM Policy require that all such excess emissions be treated as
violations.
---------------------------------------------------------------------------

    \113\ Petition at 17-18.
    \114\ The EPA notes that the Petitioner also identified several
additional pollutant-specific and source category-specific
provisions in the Alabama SIP that it alleged are inconsistent with
the CAA and the EPA's SSM Policy. However, the Petitioner did not
request that the EPA address those SIP provisions in its remedy
request, and thus the EPA is not addressing those provisions in this
action. The EPA may elect to evaluate those provisions in a later
action.
---------------------------------------------------------------------------

    Second, the Petitioner objected to the discretionary exemptions for
excess emissions during startup, shutdown, or load change that are also
present in Ala Admin Code Rule 335-3-14-.03(1)(h)(1) because the
emissions during such events can be reasonably avoided. The Petitioner
noted that such events are part of normal source operation and that any
special treatment of excess emissions during such events must be
justified with a showing that the excess emissions could not be avoided
through careful planning and design, and that bypassing controls in
such events is necessary to prevent loss of life, personal injury, or
severe property damage.
    Third, the Petitioner objected to the discretionary emergency
exemption provision that also is present in Ala Admin Code Rule 335-3-
14-.03(1)(h)(2), because the provision gives the state ``sole authority
to determine whether or not a violation has occurred.'' The Petitioner
argued that this provision could be read to preclude enforcement by the
EPA or citizens in the event that the state elects not to treat the
event as a violation. Thus, in addition to creating an impermissible
exemption for the excess emissions, the Petitioner argued that the
provision is also inconsistent with the CAA and the EPA's SSM Policy
because it allows the state to make a unilateral decision that the
excess emissions were not a violation and thus purports to bar
enforcement for the excess emissions by the EPA and citizens.
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable emission limitations, whether automatic or through
the exercise of a state official's discretion. In accordance with the
requirements of CAA section 110(a)(2)(A), SIPs must contain emission
limitations and, in accordance with the definition of ``emission
limitations'' in CAA section 302(k), such emission limitations must be
continuous. Thus, any excess emissions above the level of the
applicable emission limitations must be considered violations, whether
or not the state elects to exercise its enforcement discretion. SIP
provisions that create exemptions such that the excess emissions during
startup, shutdown, load change, or emergencies are not violations of
the applicable emission limitations are inconsistent with the
fundamental requirements of the CAA with respect to emission
limitations in SIPs. The EPA believes

that the inclusion of such exemptions from the emission limitations in
Ala Admin Code Rule 335-3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-
3-14-.03(1)(h)(2) is thus a substantial inadequacy and renders these
specific SIP provisions impermissible.
    In addition, the EPA agrees that startup, shutdown, and load change
are all part of normal source operation and that such events are
usually planned for and predictable, and thus emissions during such
events are more controllable than those that might occur during an
``emergency'' or other form of malfunction. Unlike excess emissions in
malfunctions, which are by definition presumed to be beyond the
reasonable control of the source through proper design, operation, and
maintenance, excess emissions that occur during startup, shutdown, or
load change can be anticipated and steps can be taken to minimize them.
The Petitioner, citing the 1983 SSM Guidance, argued that the EPA's SSM
Policy indicates that there should be ``a higher showing to escape
enforcement'' during such planned events. While such a higher showing
may be relevant in the context of whether a state elects to exercise
its enforcement discretion, it should not be germane to whether or not
the excess emissions constitute a violation of the applicable emission
limitations. The EPA notes that the CAA does not allow exemptions for
excess emissions during startup, shutdown, or load change, just as it
does not allow such exemptions during malfunctions. As discussed in
section VII.A of this notice, states may elect to develop alternative
emission limitations or other forms of enforceable control measures or
techniques that apply during startup and shutdown, but exemptions for
excess emissions during such periods are inconsistent with the
fundamental requirements of the CAA.
    Finally, the EPA believes that both Ala Admin Code Rule 335-3-
14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-14-.03(1)(h)(2) are also
impermissible as unbounded director's discretion provisions that make a
state official the unilateral arbiter of whether the excess emissions
in a given event constitute a violation. In the case of Ala Admin Code
Rule 335-3-14-.03(1)(h)(1), the provision authorizes a state official
unilaterally to ``[], in the Air Permit, exempt on a case by case basis
any exceedances of emission limits which cannot reasonably be avoided,
such as during periods of start-up, shut-down or load change.'' This
provision vests the state official with the unilateral power to grant
in a state air permit, which may not provide any additional public
process at the state or federal level, an exemption from the otherwise
applicable emission limitations without any bounds or parameters to the
exercise of this discretion. By deciding that an exceedance of the
emission limitation will not be a ``violation,'' exercise of this
discretion could preclude enforcement by the EPA or the public who may
not agree that the emissions in question could not ``reasonably be
avoided.'' Most importantly, however, the provision authorizes the
state official to create an exemption from the emission limitations,
and such an exemption is impermissible in the first instance. Such a
director's discretion provision undermines the SIP emission limitations
and the emissions reductions they are intended to achieve and renders
them less enforceable by the EPA or through a citizen suit. As
discussed in section VII.A of this notice, such provisions are
substantially inadequate to meet CAA requirements.
    Similarly, the EPA believes that Ala Admin Code Rule 335-3-
14-.03(1)(h)(2) authorizes a state official unilaterally to decide that
a given event was an ``emergency'' and thus to create an exemption from
the otherwise applicable emission limitations. In this case, the
provision does contain some general parameters for the source to
establish that there was an emergency (e.g., the source has to
``identify'' the cause of the emergency) but nevertheless empowers the
state official to make a unilateral determination as to whether the
event was an emergency. The provision thus vests the official with the
power to grant an exemption from the otherwise applicable SIP emission
limitations without any additional public process at the state or
federal level, and with insufficient bounds or parameters applicable to
the exercise of this discretion. Again, most significantly, this
discretion authorizes the creation of an exemption on a case-by-case
basis that is not permissible in the first instance. Thus, this
provision also may undermine the SIP emission limitations, and the
emissions reductions they are intended to achieve, and renders them
less enforceable by the EPA or through a citizen suit. The EPA believes
that the inclusion of an insufficiently bounded director's discretion
provision in Ala Admin Code Rule 335-3-14-.03(1)(h)(1) and Ala Admin
Code Rule 335-3-14-.03(1)(h)(2) is thus a substantial inadequacy and
renders these specific SIP provisions impermissible for this reason, in
addition to the creation of impermissible exemptions.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to Ala Admin
Code Rule 335-3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-
14-.03(1)(h)(2). The EPA believes that both of these provisions allow
for exemptions from the otherwise applicable emission limitations, and
that such exemptions are inconsistent with the fundamental requirements
of the CAA with respect to emission limitations in SIPs as required by
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, Ala Admin
Code Rule 335-3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-
14-.03(1)(h)(2) both allow for such exemptions through a state
official's unilateral exercise of discretionary authority that is
insufficiently bounded and includes no additional public process at the
state or federal level, and such provisions are inconsistent with the
fundamental requirements of the CAA with respect to SIPs and SIP
revisions. Moreover, the discretion created by these provisions allows
case-by-case exemptions from emission limitations, when such exemptions
are not permissible in the first instance. For these reasons, the EPA
is proposing to find that Ala Admin Code Rule 335-3-14-.03(1)(h)(1) and
Ala Admin Code Rule 335-3-14-.03(1)(h)(2) are substantially inadequate
to meet CAA requirements and thus proposing to issue a SIP call with
respect to these provisions.
2. Florida
a. Petitioner's Analysis
    The Petitioner objected to three specific provisions in the Florida
SIP that allow for generally applicable automatic exemptions for excess
emissions during startup, shutdown, or malfunction (Fla. Admin. Code
Ann Rule 62-201.700(1)), for fossil fuel steam generators during
startup and shutdown (Fla. Admin. Code Ann Rule 62-201.700(2)), and for
such sources during boiler cleaning and load change (Fla. Admin. Code
Ann Rule 62-201.700(3)).115 116 The Petitioner objected
because all three of these provisions provide exemptions from the
otherwise applicable SIP emission limitations, and such exemptions are

inconsistent with the requirements of the CAA and the EPA's SSM Policy.
The Petitioner argued that the CAA and the EPA's interpretation of the
CAA in the SSM Policy require that all excess emissions be treated as
violations.
---------------------------------------------------------------------------

    \115\ Petition at 30-31.
    \116\ The EPA notes that the Petitioner also identified several
additional pollutant-specific and source category-specific
provisions in the Florida SIP that it alleged are inconsistent with
the CAA and the EPA's SSM Policy. However, the Petitioner did not
request that the EPA address those SIP provisions in its remedy
request, and thus the EPA is not addressing those provisions in this
action. The EPA may elect to evaluate those provisions in a later
action.
---------------------------------------------------------------------------

    The Petitioner objected to all three of these provisions because,
by stating that the excess emissions during the relevant events and
time periods ``are permitted,'' the state has defined these excess
emissions as not violations, thereby precluding enforcement by the EPA
or citizens for the excess emissions that would otherwise be
violations. The Petitioner also argued that the provision creating
exemptions for excess emissions during boiler cleaning and load change
in Fla. Admin. Code Ann Rule 62-201.700(3) is impermissible
specifically because it creates an exemption for excess emissions
during normal source operation that ``are not eligible for any relief
under EPA guidance.''
    After objecting to the three provisions that create the exemptions,
the Petitioner noted that the related provision in Fla. Admin. Code Ann
Rule 62-201.700(4) reduces the potential scope of the exemptions in the
other three provisions if the excess emissions at issue are caused
entirely or in part by things such as poor maintenance but that it does
not eliminate the impermissible exemptions. Moreover, the Petitioner
asserted that none of the four provisions provides any ``procedure by
which the factual premises of any of these subsections are to be
proven.''
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable emission limitations. In accordance with the
requirements of CAA section 110(a)(2)(A), SIPs must contain emission
limitations and, in accordance with the definition of ``emission
limitations'' in CAA section 302(k), such emission limitations must be
continuous. Thus, any excess emissions above the level of the
applicable SIP emission limitations must be considered violations of
such limitations, whether or not the state elects to exercise its
enforcement discretion. SIP provisions that create exemptions such that
the excess emissions during startup, shutdown, malfunction, boiler
cleaning, or load change are not violations are inconsistent with the
fundamental requirements of the CAA with respect to emission
limitations in SIPs. The three provisions identified by the Petitioner
explicitly state that the excess emissions ``shall be permitted'' under
certain circumstances and thus provide that the resulting excess
emissions will not be violations contrary to the CAA, as required by
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). The EPA believes that
the inclusion of such exemptions from emission limitations in Fla.
Admin. Code Ann Rule 62-201.700(1), Fla. Admin. Code Ann Rule 62-
201.700(2) and Fla. Admin. Code Ann Rule 62-201.700(3), is thus a
substantial inadequacy and renders these specific SIP provisions
impermissible.
    The EPA notes that these exemptions are impermissible even though
the state has imposed some factual and temporal limitations on their
potential scope. For example, in Fla. Admin. Code Ann Rule 62-
201.700(1), the state has specified that the excess emissions from
startup, shutdown, and malfunction events ``shall be permitted'' (i.e.,
allowed and thus not treated as violations) provided: ``(1) best
operational practices to minimize emissions are adhered to and (2) the
duration of excess emissions shall be minimized but in no case exceed
two hours in any 24 hour period unless specifically authorized by the
Department for longer duration.'' Similarly, in Fla. Admin. Code Ann
Rule 62-201.700(2) with respect to startup and shutdown from certain
sources, the state has conditioned the exemption ``provided that best
operational practices to minimize emissions are adhered to and the
duration of excess emissions shall be minimized.'' In Fla. Admin. Code
Ann Rule 62-201.700(3), the state has imposed much more specific limits
on the duration of the events and some additional limitations on the
excess emissions in the form of specified opacity limits that apply
during such events. Although these extra limitations on the scope of
the exemptions are helpful features, they nevertheless constitute a
variance at a state official's discretion from the otherwise applicable
emissions limitations, and the core problem remains that each of the
three provisions provides impermissible exemptions from the emission
limitations by defining the excess emissions as ``permitted'' and thus
not violations. The CAA does, as discussed in section VII.A of this
notice, allow states to develop alternative emission limitations or
other forms of enforceable control measures or techniques that apply
during startup or shutdown. However, the Florida SIP provisions do not
appear to comply with the Act's requirements as interpreted in the
EPA's SSM Policy because, for instance, they do not apply only to
``specific, narrowly-defined source categories using specific control
strategies.'' \117\
---------------------------------------------------------------------------

    \117\ 1999 SSM Guidance Attachment at 4-5.
---------------------------------------------------------------------------

    With respect to the Petitioner's concern that these exemptions
preclude enforcement by the EPA or citizens, the EPA agrees that this
is one of the critical reasons why such provisions are impermissible
under the CAA. By having SIP provisions that define what would
otherwise be violations of the applicable emission limitations as non-
violations, the state has effectively negated the ability of the EPA or
the public to enforce against those violations.
    In addition, the EPA agrees that the limiting provision of Fla.
Admin. Code Ann Rule 62-201.700(4) that curtails the exemptions in the
prior provisions if the excess emissions are caused ``entirely or in
part'' by factors within the source's control such as ``poor
maintenance'' does not negate the underlying problem of providing
exemptions for the excess emissions in the first instance. The EPA
acknowledges that this provision would serve to prevent sources that
fail to maintain or operate correctly or otherwise to take action
reasonably to prevent excess emissions during SSM events from getting
the benefits of the exemption. However, the EPA recommends that these
are the types of considerations that should be relevant either in the
state's exercise of enforcement discretion for violations, in the
state's adoption of a SIP provision concerning that exercise of
enforcement discretion by the state, or by an appropriately drawn
affirmative defense SIP provision for excess emissions in the case of
malfunctions.
    Finally, the Petitioner expressed concern that the four SIP
provisions at issue ``do not specify the procedure by which the factual
premises are to be proven.'' Were these provisions authorizing a state
official to make discretionary decisions as to whether or not a given
event qualified for the (impermissible) exemption, there could be an
additional concern that these provisions included a director's
discretion problem as well. However, the EPA believes that these
regulations are directly enforceable by the state, the EPA, or members
of the public in the appropriate forums, and thus the ``procedure'' for
proving the violation would be the normal process in such forums. The
fact that the state has established factual requirements that would
need to be evaluated in order to prove a violation of the applicable
emission limitations is not itself inconsistent with CAA requirements.
The EPA believes that providing

requisite factual evidence to establish a violation in an enforcement
proceeding is entirely appropriate.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to Fla. Admin.
Code Ann Rule 62-201.700(1), Fla. Admin. Code Ann Rule 62-201.700(2),
Fla. Admin. Code Ann Rule 62-201.700(3), and Fla. Admin. Code Ann Rule
62-201.700(4). The EPA believes that each of these provisions allows
for exemptions from the otherwise applicable emission limitations, and
that such exemptions are inconsistent with the fundamental requirements
of the CAA with respect to emission limitations in SIPs as required by
sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by
creating these impermissible exemptions, the state has defined
violations in way that would interfere with effective enforcement by
the EPA and citizens for excess emissions during these events as
provided in CAA sections 113 and 304. For these reasons, the EPA is
proposing to find that these provisions are substantially inadequate to
meet CAA requirements and thus proposing to issue a SIP call with
respect to Fla. Admin. Code Ann Rule 62-201.700(1), Fla. Admin. Code
Ann Rule 62-201.700(2), Fla. Admin. Code Ann Rule 62-201.700(3), and
Fla. Admin. Code Ann Rule 62-201.700(4).
3. Georgia
a. Petitioner's Analysis
    The Petitioner objected to a provision in the Georgia SIP that
provides for exemptions for excess emissions during startup, shutdown,
or malfunctions under certain circumstances (Ga. Comp. R. & Regs. 391-
3-1-.02(2)(a)(7)).\118\ The Petitioner acknowledged that this provision
of the Georgia SIP includes some conditions for when sources may be
entitled to seek the exemption under state law, such as when the source
has used ``best operational practices'' to minimize emissions during
the SSM event.
---------------------------------------------------------------------------

    \118\ Petition at 32.
---------------------------------------------------------------------------

    First, the Petitioner objected because the provision creates an
exemption from the applicable emission limitations by providing that
the excess emissions ``shall be allowed'' subject to certain
conditions, whereas the CAA and the EPA's interpretation of the CAA in
the SSM Policy prohibit any such exemptions. The Petitioner noted that
all excess emissions are required to be treated as violations of the
applicable emission limitations, even if they would qualify for some
other special consideration through other means such as enforcement
discretion.
    Second, the Petitioner argued that although the provision provides
some ``substantive criteria,'' the provision does not meet the criteria
the EPA recommends for an affirmative defense provision consistent with
the requirements of the CAA in the EPA's SSM Policy. Third, the
Petitioner asserted that the provision is not a permissible
``enforcement discretion'' provision applicable only to state
personnel, because it ``is susceptible to interpretation as an
enforcement exemption, precluding EPA and citizen enforcement as well
as state enforcement.''
b. The EPA's Evaluation
    At the outset, the EPA notes that the Petitioner failed to include
any discussion of the extensive prior litigation and administrative
proceedings concerning this specific provision of the Georgia SIP.
Nearly 10 years ago, citizen suit plaintiffs including the Petitioner
sought to bring an enforcement action against a source for self-
reported exceedances of emission limitations in the source's operating
permit, and the source asserted that those exceedances were not
``violations'' through application of a permit provision that mirrored
the underlying SIP provision in Ga. Comp. R. & Regs. 391-3-
1-.02(2)(a)(7).\119\ In that case, the plaintiffs argued that the
provision at issue was an ``enforcement discretion'' provision
applicable to state personnel only and thus that it was not relevant in
the event of enforcement actions by other parties. The District Court
agreed and held that the provision was merely an enforcement discretion
provision applicable to the state and that it provided no affirmative
defense in the enforcement action, and thus the court ruled in favor of
the plaintiffs on this issue.\120\
---------------------------------------------------------------------------

    \119\ See, Sierra Club, et al. v. Georgia Power Co., 365 F. Supp
1297 (N.D. Ga. 2004).
    \120\ Id. at 1304. The court also made a series of findings to
illustrate that the permit provision was not consistent with the
EPA's interpretation of the CAA requirements concerning excess
emissions during SSM events embodied in the 1999 SSM Guidance.
---------------------------------------------------------------------------

    On appeal, the Court of Appeals examined the same operating permit
language and underlying SIP provision and came to a different
conclusion.\121\ The Court of Appeals concluded that the provision does
provide an affirmative defense and is not an enforcement discretion
provision. Moreover, the Court noted that even if the provision is not
consistent with the EPA's guidance on permissible affirmative defense
provisions in SIPs (e.g., because it creates exemptions for exceedances
and purports to allow a complete bar to any liability, not just relief
from monetary penalties), the EPA had not taken action through
rulemaking to rectify that discrepancy. Because the EPA had not called
upon the state to revise the SIP to bring it into compliance with the
EPA's current interpretation of the CAA embodied in the 1999 SSM
Guidance, the Court held that the exceedances of the applicable
emission limitations were not violations and thus ruled against the
plaintiffs.
---------------------------------------------------------------------------

    \121\ See, Sierra Club, et al. v. Georgia Power Co., 443 F.3d
1346 (11th Cir. 2006).
---------------------------------------------------------------------------

    Contemporaneously with this litigation, the Petitioner had also
filed a May 23, 2005 petition for rulemaking, requesting that the EPA
require the state to revise its SIP ``to correct a significant
ambiguity'' concerning the excess emissions from SSM events.\122\ On
July 18, 2007, the EPA denied that petition.\123\ As a basis for this
denial, the EPA reasoned that the opinion of the Court of Appeals had
rendered the petition moot as to the issues raised therein.
Specifically, the EPA stated that the Court's decision that the
existing provision did not create an ``automatic exemption'' and did
constitute an ``affirmative defense'' resolved any ``ambiguity'' about
the meaning and application of Ga. Comp. R. & Regs. 391-3-
1-.02(2)(a)(7).
---------------------------------------------------------------------------

    \122\ The petition was filed by Richard M. Watson of the Georgia
Center for Law in the Public Interest on behalf of the Georgia
Chapter of the Sierra Club.
    \123\ See, Letter from Stephen E. Johnson, Administrator, to
Georgia Chapter of the Sierra Club, dated July 18, 2007. A copy of
this letter is in the docket for this action.
---------------------------------------------------------------------------

    At this juncture, the EPA believes that the extensive proceedings
concerning Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) in which
plaintiffs, defendants, courts, and both state and federal agencies
examined the same provision and came to different conclusions
concerning its meaning illustrates the need to examine this SIP
provision again. In particular, the EPA concludes that the provision
warrants further evaluation on the merits, because the Petition
requests that the EPA consider more specific allegations about
deficiencies in the provision than did the 2005 petition. As the 11th
Circuit Court of Appeals suggested, the EPA agrees that a formal
notice-and-comment rulemaking though CAA section 110(k)(5) is a good
mechanism through which to evaluate whether or not Ga. Comp. R. & Regs.
391-3-1-.02(2)(a)(7) meets the substantive requirements of the CAA.
Accordingly,

the EPA is reevaluating the provision on the merits.\124\
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    \124\ The EPA notes that it is not bound to follow a prior
incorrect interpretation of its own policy, nor is it precluded from
changing its policy interpretations. See, e.g., Luminant Generation
Co. v. EPA, 699 F.3d 427 (5th Cir. 2012), and U.S. Supreme Court
precedent cited therein for these propositions.
---------------------------------------------------------------------------

    The first concern with this provision is that it does create
exemptions from the applicable emission limitations. The provision
explicitly states that the ``excess emissions resulting from startup,
shutdown, malfunction of any source which occur though ordinary
diligence is employed shall be allowed,'' i.e., are exempt and not
subject to enforcement for either monetary penalties or injunctive
relief. The exemption for these excess emissions is conditioned upon
several criteria relevant to minimizing emissions during the startup,
shutdown, or malfunction event, which criteria are helpful and are
structured as a form of affirmative defense. Even if Ga. Comp. R. &
Regs. 391-3-1-.02(2)(a)(7) could otherwise qualify as an affirmative
defense provision, however, the EPA's interpretation of the CAA is that
such affirmative defenses can only shield the source from monetary
penalties and cannot be a bar to injunctive relief. An affirmative
defense provision that purports to bar any enforcement action for
violations of emission limitations is inconsistent with the
requirements of CAA sections 113 and 304.
    The EPA's second concern with Ga. Comp. R. & Regs. 391-3-
1-.02(2)(a)(7) is that while the provision appears to create an
affirmative defense, it does so with conditions that are not consistent
with the full range of criteria that the EPA recommends in the SSM
Policy. The EPA acknowledges that the SSM Policy is only guidance
concerning what types of SIP provisions could be consistent with the
requirements of the CAA. Nonetheless, through this rulemaking, the EPA
is proposing to determine that Ga. Comp. R. & Regs. 391-3-
1-.02(2)(a)(7) does not include criteria that are sufficiently robust
to qualify as an acceptable affirmative defense provision. In
particular, the provision does not limit the type of event that
qualifies as a malfunction to those that are entirely beyond the
control of the source, that were not reasonably foreseeable and
avoidable, and that were not part of a recurring pattern indicative of
inadequate design, operation, or maintenance. While the EPA continues
to believe that affirmative defense provisions applying to malfunctions
can be consistent with the CAA as long as the criteria set forth in the
SSM Policy are carefully adhered to, as explained in more detail in
sections IV.B and VII.B of this notice, the EPA believes that the
criteria in Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) should be
augmented to assure that the affirmative defense is available only in
appropriately narrow circumstances.
    The EPA's third concern with Ga. Comp. R. & Regs. 391-3-
1-.02(2)(a)(7) is that even if the provision were otherwise construed
as an affirmative defense, it extends not just to malfunctions but also
to startup and shutdown events. As explained in sections IV.B and VII.C
of this notice, the EPA interprets the CAA to allow affirmative defense
provisions applicable to malfunctions but not to other normal modes of
source operation, including startup and shutdown. Thus, the provision
is not drawn to assure that the affirmative defense is available only
in appropriately narrow circumstances, as required by the EPA's
interpretation of CAA requirements.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to Ga. Comp. R.
& Regs. 391-3-1-.02(2)(a)(7). The EPA believes that this provision
allows for exemptions from the otherwise applicable emission
limitations, and that such outright exemptions for excess emissions are
inconsistent with the fundamental requirements of the CAA with respect
to emission limitations in SIPs. Such a provision is inconsistent with
the requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and
302(k).
    In addition, Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is not a
permissible affirmative defense provision consistent with the
requirements of the CAA and the EPA's recommendations for such
provisions in the EPA's SSM Policy. By creating a bar to enforcement
that applies not just to monetary penalties but also to injunctive
relief, this provision is inconsistent with the requirements of CAA
sections 113 and 304. By not including sufficient criteria to assure
that sources seeking to raise the affirmative defense have in fact been
properly designed, maintained, and operated, and to assure that sources
have taken all appropriate steps to minimize excess emissions, the
provision also fails to be sufficiently narrowly drawn to justify
shielding from monetary penalties for violations. Moreover, Ga. Comp.
R. & Regs. 391-3-1-.02(2)(a)(7) currently applies not only to
malfunctions but also to startup and shutdown events, contrary to the
EPA's interpretation of the CAA. Thus, this provision is not
appropriate as an affirmative defense provision because it is
inconsistent with fundamental requirements of the CAA as interpreted in
the EPA's SSM Policy. For these reasons, the EPA is proposing to find
that Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is substantially
inadequate to meet CAA requirements and thus proposing to issue a SIP
call with respect to this provision.
4. Kentucky
a. Petitioner's Analysis
    The Petitioner objected to a generally applicable provision that
allows discretionary exemptions from otherwise applicable SIP emission
limitations in Kentucky's SIP (401 KAR 50:055 Sec.
1(1)).125 126 The provision provides that ``[e]missions
which, due to shutdown or malfunctions, temporarily exceed the standard
* * * shall be deemed in violation of such standards unless the
requirements of this section are satisfied and the determinations
specified in subsection (4) * * * are made.'' The provision requires
sources to notify the director that such violations are going to or
have occurred. The provision then provides that ``[a] source shall be
relieved from compliance with the standards * * * if the director
determines'' that the source has met a number of enumerated criteria.
---------------------------------------------------------------------------

    \125\ Petition at 39-40.
    \126\ The EPA notes that the Petitioner also identified several
additional pollutant-specific and source category-specific
provisions in Kentucky's SIP that it alleged are inconsistent with
the CAA and the EPA's SSM Policy. However, the Petitioner did not
request that the EPA address those SIP provisions in its remedy
request, and thus the EPA is not addressing those provisions in this
action. The EPA may elect to evaluate those provisions in a later
action.
---------------------------------------------------------------------------

    The Petitioner argued that this provision could provide an
exemption from the otherwise applicable SIP emission limitations, and
such an exemption is impermissible under the CAA because the statute
and the EPA's interpretation of the CAA in the SSM Policy require that
all such excess emissions be treated as violations. Moreover, the
Petitioner objected to this discretionary exemption because the
director's determination that the source has met the specified criteria
could be interpreted to excuse excess emissions during such time period
and could thus be read to preclude enforcement by the EPA or citizens
in the event that the director elects not to treat the event as a
violation. Thus, in addition to creating an impermissible exemption for
the excess emissions, the Petitioner argued, the provision is also
inconsistent with the CAA as interpreted in the EPA's SSM Policy
because it allows the

director to make a unilateral decision that the excess emissions were
not a violation and thus could bar enforcement for the excess emissions
by the EPA and citizens.
    The Petitioner noted that the criteria that sources must
demonstrate to the director in order to qualify for the exemption
``resemble the criteria that are supposed to guide a state's
enforcement discretion for malfunctions,'' but that if the provision is
not removed from the SIP, it ``must stipulate that all excess emissions
are violations and preserve the authority of EPA and citizens to
enforce the SIP standards and limitations.'' Thus, the Petitioner
viewed this provision as either an impermissible discretionary
exemption mechanism or an impermissible enforcement discretion
provision.
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a state official's discretion. In accordance
with the requirements of CAA section 110(a)(2)(A), SIPs must contain
emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, or malfunctions are not violations
of the applicable emission limitations are inconsistent with the
fundamental requirements of the CAA with respect to emission
limitations in SIPs. The EPA believes that the inclusion of such an
exemption from the emission limitations in 401 KAR 50:055 Sec.  1(1) is
thus a substantial inadequacy and renders this specific SIP provision
impermissible.
    The EPA believes that 401 KAR 50:055 Sec.  1(1) is impermissible as
an unbounded director's discretion provision that makes a state
official the unilateral arbiter of whether the excess emissions in a
given event constitute a violation. In the case of 401 KAR 50:055 Sec.
1(1), the provision authorizes the state official to make a
determination that the source has met the specified criteria, and such
a determination could be interpreted to excuse excess emissions during
the event and could thus be read to preclude enforcement by the EPA or
through a citizen suit. In addition, the provision vests a state
official with the unilateral power to grant an exemption from the
otherwise applicable SIP emission limitation, without any additional
public process at the state or federal level. Most importantly,
however, the provision authorizes a state official to create an
exemption from the emission limitation, and such an exemption is
impermissible in the first instance. Such a director's discretion
provision undermines the SIP emission limitations, and the emissions
reductions they are intended to achieve, and renders them less
enforceable by the EPA or through a citizen suit. The EPA believes that
the inclusion of an insufficiently bounded director's discretion
provision in 401 KAR 50:055 Sec.  1(1) is thus a substantial inadequacy
and renders this specific SIP provision impermissible for this reason,
in addition to the creation of an impermissible exemption.
    The EPA also notes that after the submission of the Petition, there
has been a subsequent regulatory action that touched upon this SIP
provision tangentially. In connection with a redesignation of the
Kentucky portion of the tri-state Cincinnati-Hamilton area for the 1997
PM2.5 NAAQS, the state submitted an interpretive letter to
the EPA explaining the state's reading of 401 KAR 50:055 Sec.
1(1).\127\ In this November 4, 2011 letter, the Kentucky Division of
Air Quality (KDAQ) stated that it has ``never formally taken the
position that excess emissions under the regulations are not
violations'' and that a determination by KDAQ ``does not limit'' the
authority of the EPA and citizens to take enforcement action.\128\
Based on the state's interpretation of 401 KAR 50:055 Sec.  1(1), the
EPA at that time concluded that the provision could be construed not to
bar enforcement by the EPA or through a citizen suit if the state
elects not to pursue enforcement; i.e., it could be construed as an
enforcement discretion provision applicable to state personnel. In the
context of acting upon the redesignation request under CAA section
107(d)(3), this clarification from the state was sufficient to address
the concern raised in comments on that action. Nevertheless, the EPA
noted in the redesignation action that it would evaluate 401 KAR 50:055
Sec.  1(1) as part of its consideration of issues raised by the
Petition.
---------------------------------------------------------------------------

    \127\ See, ``Approval and Promulgation of Implementation Plans
and Designations of Areas for Air Quality Planning Purposes;
Kentucky; Redesignation of the Kentucky Portion of the Cincinnati-
Hamilton, OH-KY-IN 1997 Annual Fine Particulate Matter Nonattainment
Area to Attainment,'' 76 FR 77903 (Dec. 15, 2011).
    \128\ A copy of this letter can be found in the docket for this
rulemaking.
---------------------------------------------------------------------------

    At this juncture, the EPA believes that the difference of views
about the correct reading of 401 KAR 50:055 Sec.  1(1) illustrates the
need to examine this SIP provision again. The EPA appreciates KDAQ's
clarification of its reading of the provision in the November 4, 2011,
letter and the EPA considers that interpretation sufficient for
purposes of the redesignation action. However, in the course of
reevaluating this provision in light of the issues raised in the
Petition, the EPA believes that the provision contains regulatory
language that is potentially contradictory and requires formal revision
to eliminate significant ambiguities. For example, subsection 1 of the
provision states that: ``[e]missions which, due to shutdown or
malfunctions, temporarily exceed the standard * * * shall be deemed in
violation of such standards unless the requirements of this section are
satisfied.'' In subsection 4, the provision states that ``a source
shall be relieved from compliance with the standards * * * if the
director determines, upon a showing by the owner or operator of the
source, that'' certain conditions are met. KDAQ has indicated that it
reads these provisions not to bar enforcement by the EPA or through a
citizen suit in the event that the state does not pursue enforcement,
but the EPA believes that the provision is sufficiently ambiguous on
this point that a revision is necessary to ensure that outcome in the
event of an enforcement action.
    As discussed in section VI.B of this notice, the EPA believes that
in some instances it is appropriate to clarify provisions of a SIP
through the use of interpretive letters. However, in some cases, there
may be areas of regulatory ambiguity in a SIP's provisions that are
sufficiently significant for which resolution is both appropriate and
necessary. Because the text of Kentucky's SIP provision is not clearly
phrased in terms of the state's exercise of enforcement discretion and
could be interpreted to allow discretionary exemptions from the
otherwise applicable SIP emission limitations or as an affirmative
defense provision inconsistent with the criteria recommended in the
EPA's SSM Policy, the EPA believes that the provision is substantially
inadequate to meet CAA requirements.
c. The EPA's Proposal
    The EPA proposes to grant the Petition with respect to 401 KAR
50:055 Sec.  1(1). The EPA believes that this provision requires
clarification to ensure that it meets CAA requirements.

The current provision could be read to allow for exemptions from the
otherwise applicable SIP emission limitations, and such exemptions are
inconsistent with the fundamental requirements of the CAA with respect
to emission limitations in SIPs in sections 110(a)(2)(A), 110(a)(2)(C),
and 302(k). In addition, 401 KAR 50:055 Sec.  1(1) could be read to
allow exemptions through a state official's unilateral exercise of
discretionary authority that is insufficiently bounded and includes no
additional public process at the state or federal level, and such
provisions are inconsistent with the fundamental requirements of the
CAA with respect to SIPs and SIP revisions. Moreover, the provision
could be read to create discretion to allow case-by-case exemptions
from emission limitations when such exemptions are not permissible in
the first instance. In light of the potential conflicts between the
provision and the differing interpretations that parties or a court
might give the provision in an enforcement action, the EPA is proposing
to find that 401 KAR 50:055 Sec.  1(1) is substantially inadequate to
meet CAA requirements and thus proposing to issue a SIP call with
respect to this provision.
5. Kentucky: Jefferson County
a. Petitioner's Analysis
    First, the Petitioner objected to a generally applicable provision
in the Jefferson County Air Regulations 1.07 because it provides for
discretionary exemptions from compliance with emission limitations
during startup, shutdown, and malfunction.129 130 The
provision states that ``[e]missions due to startup, shutdown,
malfunction, or emergency, that temporarily exceed the standards * * *
shall be deemed in violation of those standards unless, based upon a
showing by the owner or operator of the source and an affirmative
determination by the District, the applicable requirements of this
regulation are satisfied.'' The provision requires different
demonstrations for exemptions for excess emissions during startup and
shutdown (Regulation 1.07 Sec.  3), malfunction (Regulation 1.07 Sec.
4 and Sec.  7), and emergency (Regulation 1.07 Sec.  5 and Sec.  7).
---------------------------------------------------------------------------

    \129\ The Petitioner noted that this regulation was approved
into Kentucky's SIP in ``Approval and Promulgation of Air Quality
Implementation Plans; Kentucky; Approval of Revisions to State
Implementation Plan; Revised Format for Materials Being Incorporated
by Reference for Jefferson County, Kentucky,'' 66 FR 53503 at 53660
(Oct. 23, 2001).
    \130\ Petition at 40-42.
---------------------------------------------------------------------------

    The Petitioner argued that this provision could provide exemptions
from the otherwise applicable SIP emission limitations, and that such
exemptions are impermissible under the CAA because the statute and the
EPA's interpretation of the CAA in the SSM Policy require that all
excess emissions be treated as violations. The Petitioner objected to
this provision as allowing discretionary exemptions, because a local
official's determination that the source has met the specified criteria
could be interpreted to excuse excess emissions during such events and
could thus be read to preclude enforcement by the EPA or citizens if
the district elects not to treat the event as a violation.
    Second, the Petitioner objected to the affirmative defense for
emergencies in Jefferson County Air Regulations 1.07. The Petitioner
noted that the SIP provision ``mirrors the language in 40 C.F.R. Sec.
70.6(g)'' in the EPA's own title V regulations. Thus, the Petitioner
argued that the provision should not be included in the SIP because it
is modeled on the EPA's own title V regulations, and such regulations
do not belong in the SIP. The Petitioner also argued that even if the
provision were appropriate as a SIP provision, it is deficient because
it is not a ``true affirmative defense.'' On the latter point the
Petitioner argued that a ``true affirmative defense'' is a defense to
be asserted by the source in the context of a judicial or
administrative enforcement proceeding. The Petitioner opined that the
emergency affirmative defense in Jefferson County Air Regulations 1.07
``appears to allow the District to decide whether the defense
applies.''
b. The EPA's Evaluation
    The EPA agrees that the CAA does not allow for exemptions from
otherwise applicable SIP emission limitations, whether automatic or
through the exercise of a government official's discretion. In
accordance with the requirements of CAA section 110(a)(2)(A), SIPs must
contain emission limitations and, in accordance with the definition of
``emission limitations'' in CAA section 302(k), such emission
limitations must be continuous. Thus, any excess emissions above the
level of the applicable emission limitation must be considered
violations, whether or not the state elects to exercise its enforcement
discretion. SIP provisions that create exemptions such that the excess
emissions during startup, shutdown, load change, or emergencies are not
violations of the applicable emission limitations are inconsistent with
the fundamental requirements of the CAA with respect to emission
limitations in SIPs. The EPA believes that the inclusion of such an
exemption from the emission limitations in Jefferson County Air
Regulations 1.07 is thus a substantial inadequacy and renders this
specific SIP provision impermissible.
    The EPA believes that Regulation 1.07 is also impermissible as an
insufficiently bounded director's discretion provision that makes a
local official the unilateral arbiter of whether the excess emissions
in a given event constitute a violation. In the case of Regulation
1.07, the provision authorizes local officials to make a determination
that the source has met the specified criteria for each type of event--
startup and shutdown (Regulation 1.07 Sec.  3), malfunction (Regulation
1.07 Sec.  4), emergency (Regulation 1.07 Sec.  5), and extended
malfunction or emergency (Regulation 1.07 Sec.  7). The local
official's ``affirmative determination'' that such requirements have
been met has the effect of excusing the excess emissions (Regulation
1.07 Sec.  2.1). This determination could be interpreted to preclude
enforcement by the EPA or through a citizen suit. In addition, the
provision vests the local official with the unilateral power to grant
an exemption from the otherwise applicable SIP emission limitations,
without any additional public process at the state or federal level.
Most importantly, however, the provision authorizes the local official
to create an exemption from the emission limitation, and such an
exemption is impermissible in the first instance. Such a director's
discretion provision undermines the emission limitations, and the
emissions reductions they are intended to achieve, and renders them
less enforceable by the EPA or through a citizen suit. The EPA believes
that the inclusion of an insufficiently bounded director's discretion
provision in Regulation 1.07 is thus a substantial inadequacy and
renders this specific SIP provision impermissible for this reason, in
addition to the creation of an impermissible exemption.
    The EPA also agrees that Regulation 1.07 provides an impermissible
exemption for excess emissions that occur during ``emergencies.'' The
provision uses language that is borrowed from the EPA's title V
regulations (Regulation 1.07 Sec.  5) but that is not appropriate for a